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798 F.2d 1416
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.David S. ROSE and Sydney Rose, Defendants-Appellants.
No. 84-1235.
United States Court of Appeals,Sixth Circuit.
July 21, 1986.
Before LIVELY, Chief Judge, and MERRITT and NELSON, Circuit Judges.
PER CURIAM.
1
This is an appeal from a summary judgment entered in favor of the United States in an action brought by it on behalf of the Small Business Administration against David Rose and his wife Sydney on their guaranty of a promissory note. We believe the judgment was proper.
2
In 1975 a partnership in which Mr. Rose had an interest, Churchill's Jewelry and Gift Showrooms, Ltd., obtained a $388,800 loan from the Bank of -,the Commonwealth. Churchill's Jewelry executed a promissory -note for that amount on a Small Business Administration form, and Mr. and Mrs. Rose signed a separate SBA guaranty form stating that in order to induce the bank to make the loan they "unconditionally" guaranteed the punctual payment of the note when due. By its terms, the guaranty ran to the lender and its assigns.
3
In 1977 the note was assigned to the Small Business Administration, which obtained a security interest in the assets of Churchill's Jewelry. In 1979 a company called Grinnell Brothers, Inc., assumed the outstanding balance of the loan, with the SBA's consent, and gave the SBA a security interest in its own assets. Mr. & Mrs. Rose gave the SBA new guaranties, prepared on forms identical to that used earlier
4
When Mr. Rose executed his 1979 guaranty, it was with the undertanding, based upon oral representations made by an SBA official, that the SBA would look to the collateral before looking to the guarantors for payment. The text of the 1979 guaranty, however, like that of its predecessor, said that if the debtor failed to make payment when due, the guarantor would pay "immediately" on written demand of the lender. All of the guaranties were, by their terms, "unconditional," and all of them provided that the lender "shall not be requ ired ... to pursue or exhaust any of its rights or remedies with respect to any part of the collateral."
5
Approximately $205,000 of the loan principal was repaid, but the rest was not. On May 1, 1981, the SBA sent certified letters to Mr. & Mrs. Rose notifying them that the loan was in default and demanding payment of the unpaid principal plus accrued interest. A year later, no further payment having been received, the United States brought this action.
6
* * *
7
* * *
8
The Roses' first contention is that summary judgment was improper because of the oral representations that the Small Business Administration would look to the collateral securing the note prior to demanding payment from the guarantors. -Whether or not oral representations may ever estop the United States, however, there can be no estoppel without a detrimental change of position in reliance on the representations. Heckler v. Community Health Services of Crawford, 467 U.S. 51 (1984). No such change in in position occurred here; the loan had been unconditionally guaranteed by Mr. and Mrs. Rose in 1975, and the 1975 guaranty would have run to the SBA, as an assignee of the Bank of the Commonwealth" even if no further guaranties had ever been given. The SBA gained nothing of substance when the 1979 guaranties were given, and the Roses lost nothing of substance.
9
The Roses' second contention is that the SBA violated a federal common law duty (arising from the Uniform Commercial Code) diligently to protect and enforce its security interests. As we have noted, however, the Roses' guaranties expressly negated such duty, and the guaranties were "unconditional." "The failure of a secured party to diligently enforce its rights against collateral security ... clearly would not discharge a guarantor's duties pursuant to an unconditional guaranty." United States v. Willis, 593 F.2d 247, 255, n. 10 (6th Cir.1979) (dictum).
10
Willis was a case where the SBA had taken possession of collateral and disposed of it in a way that was not commercially reasonable. The agency was held to be precluded from recovering a deficiency judgment against the guarantors in that situation, but this in no way suggests that the SBA may not recover where it is not required to pursue any of its rights with respect to the collateral and has elected not to do so.
11
The summary judgment is AFFIRMED.
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CURTIS LANDRY, JR., d/b/a )
LANDRY AND ASSOCIATES, )
) Rutherford Circuit
Plaintiff/Appellee, ) No. 36960
)
VS. )
) Appeal No.
JOHN DANIEL RUDD, ) 01A01-9707-CV-00303
)
Defendant/Appellant. )
FILED
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE February 20, 1998
Cecil W. Crowson
APPEAL FROM CIRCUIT COURT OF RUTHERFORD COUNTY
AT MURFREESBORO, TENNESSEE Appellate Court Clerk
HONORABLE ROBERT E. CORLEW, JUDGE
Stephen W. Pate
218 West Main Street
Suite One
Murfreesboro, TN 37130
ATTORNEY FOR PLAINTIFF/APPELLEE
William Kennerly Burger
301 North Spring Street
Murfreesboro, TN 37133-0398
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
CURTIS LANDRY, JR., d/b/a )
LANDRY AND ASSOCIATES, )
) Rutherford Circuit
Plaintiff/Appellee, ) No. 36960
)
VS. )
) Appeal No.
JOHN DANIEL RUDD, ) 01A01-9707-CV-00303
)
Defendant/Appellant. )
OPINION
The defendant, John Daniel Rudd, has appealed from a judgment of the Trial Court
allowing the enrollment of two foreign judgments, both in favor of the plaintiff, John Landry
and against the defendant.
The sole issue on appeal is stated by appellant as follows:
Did the trial court properly enter judgment on the
pleadings, with no factual consideration of the affirmative
defenses of release and accord and satisfaction?
The record has been searched without finding a motion for judgment on the pleadings
or a judgment on the pleadings.
The judgment from which this appeal is prosecuted states:
This cause came to be heard on the 13th day of
December, 1996, before the Honorable Robert E. Corlew III,
Judge of the Circuit Court for Rutherford County, Tennessee,
upon filing of two foreign judgments in favor of Curtis L.
Landry, Jr. d/b/a Landry and Associates against John Daniel
Rudd, an affidavit by counsel for plaintiffs as required by
TCA 26-6-101(a), personal service of process on the
defendant, John Daniel Rudd on August 1, 1996, answer and
objection to authentication by the defendant, reply to answer
and objection to authentication by the plaintiff, response to
plaintiff’s reply filed by the defendant, argument of counsel
for both parties and the entire record, from all of which the
court is of the opinion that the defendant’s objection to
authentication on the basis of the release and accord and
satisfaction are not well taken and should therefore be denied,
but plaintiff’s affidavit in support of the two foreign
judgments is deficient, as it fails to contain a certificate of
-2-
authentication (exemplification), and with plaintiff given
twenty days to correct said deficiency.
It is, therefore, ORDERED, ADJUDGED and
DECREED that defendant’s answer and objection to
authentication is hereby denied, and plaintiff’s affidavit in
support of the filing of foreign judgments against the
defendant shall be supplemented by the filing of a certificate
of authentication (exemplification) within twenty days of the
entry of this order, before execution may issue in favor of
plaintiff against the defendant in satisfaction of the two
foreign judgments.
Proper authentication of the foreign judgments was filed and is not questioned on
appeal.
Appellant contends that the Trial Court erred in overruling his objections to the
enforcement of the foreign judgments on grounds that they were improperly entered by the
foreign court because the right of action upon which the foreign suits was brought had been
satisfied by argument of the parties as evidenced by the order of the Tennessee Court.
On July 19, 1996, plaintiff filed with the Trial Clerk copies of the two foreign
judgments with an affidavit stating:
I, Stephen W. Pate, attorney for the above named
plaintiff, Curtis L. Landry, Jr., d/b/a/ Landry and Associates,
after being first duly sworn according to law, make oath and
affirm that on the date of the filing of the two (2) foreign
judgments, both of which are attached hereto, the names and
addresses of the judgment debtor and judgment creditor, as
required by TCA 26-5-105(a) are as follows.
Attached to said affidavit were copies of two foreign judgments rendered on January
16, 1996, and April 16, 1996, respectively.
On October 10, 1996, defendant filed an answer attaching a copy of an order entered
by the Tennessee Trial Court in a previous case styled Curtis L. Landry, Jr. v. John Mitchell
Byrnes and Daniel Rudd. Said answer stated the following defense:
-3-
2. JOHN DANIEL RUDD states that the
judgments offered for enforcement are purportedly based on
a contract entered in the state of Tennessee on February 24,
1992, for services to be performed entirely within the state of
Tennessee. Defendant RUDD was sued in the state of
Louisiana in November, 1994, and mistakenly filed a pro se
answer, entering a general appearance in Louisiana, on
November 3, 1994, thereby inadvertently waiving the
jurisdictional defenses which would have been otherwise
available to him since there were no in personam contacts
with the state of Louisiana. A summary judgment motion was
filed by Plaintiff LANDRY on November 29, 1994.
Defendant RUDD thereafter employed Louisiana counsel who
represented him at the summary judgment hearing in February
of 1995. Defendant RUDD prevailed in the summary
judgment matter, and the Louisiana case thereafter became
dormant, with no further activity, other than nominal
settlement discussions, during the spring of 1995.
During the same general time frame, Plaintiff
LANDRY filed against Defendant JOHN DANIEL RUDD
and a co-defendant (John Mitchell Byrnes), a personal injury
action in Rutherford Circuit civil action number 34914, which
was filed April 24, 1995. Defendants RUDD and Byrnes
answered the personal injury tort claim on June 12, 1995, and
affirmatively asserted the entitlement, based upon the
frivolous nature of the case, to Rule 11 sanctions, including
all attorney’s fees and court costs. During the summer of
1995, Plaintiff LANDRY appeared in proceedings in
Rutherford County. As a consequence of those appearances
and discussions, the parties resolved all issues in dispute
among the parties. An “Agreed Order of Dismissal”, signed
by Plaintiff “CURTIS L. LANDRY, Jr.”, was filed in
Rutherford Circuit civil action number 34914 on August 16,
1995. That agreed order, a copy of which is attached hereto
and incorporated herein by reference, contains the following
unqualified, unlimited, and unconditional release wording,
which acknowledged that “all” matters of controversy
existing between the parties would be compromised and
settled:
“. . . It appears to the Court that all
matters in controversy by and between these
parties have been compromised and settled,
and that this case should be dismissed with
prejudice.”
3. As of the date of the filing of that agreed order
of dismissal, the Plaintiff LANDRY had failed to obtain the
relief requested in his summary judgment motion argued
earlier in the year in February, 1995. The Louisiana case has
remained dormant for several months, with no efforts by
Plaintiff LANDRY to re-docket the matter. At the time of the
entry of the agreed order of dismissal, LANDRY was aware
that Defendant RUDD was asserting a separate claim against
-4-
him for the filing of a frivolous lawsuit in Tennessee. No
sums were paid by RUDD to LANDRY, including court
costs. Accordingly, Defendant RUDD asserts that the later
reduction to judgment of the Louisiana claim (in August,
1996) is ineffectual, and was fraudulently procured in
contravention of the terms of the agreement of the parties to
resolve “all matters of controversy” existing between them, by
the entry of the agreed order in the Tennessee action.
Defendant RUDD otherwise would have never surrendered
his claim for unjustifiable litigation or abuse of process,
which, although not specifically identified in the agreed order
of dismissal, was resolved and released under the terms of the
inclusive order.
4. Accordingly, Defendant asserts that the matter
may not be enforced on grounds that it has been released and
compromised.
Attached to the quoted pleading was a copy of an order of the Tennessee court in a
previous case reading as follows:
Curtis L. Landry, Jr.,
Plaintiff,
VS. Case No. 34914
John Mitchell Byrnes and
J. Daniel Rudd,
Defendants.
AGREED ORDER OF DISMISSAL
As evidenced by the signature hereon of the Plaintiff
and the signature hereon of the attorney representing the
Defendants, it appears to the Court that all matters in
controversy by and between these parties have been
compromised and settled and that this case should be
dismissed with prejudice. By signing this Order, the Plaintiff
specifically acknowledges that this is a complete and final
dismissal of this lawsuit and that he will not have the right to
re-file this lawsuit against either Defendant in any Court.
IT IS, THEREFORE, ORDERED, ADJUDGED and
DECREED that this cause be, and the same is, hereby
dismissed with prejudice.
On October 16, 1996, plaintiff filed a “Reply to Answer and Objection to
Authentication” stating:
-5-
1. Plaintiff avers the defenses of release and
accord and satisfaction are not applicable, as no payment or
consideration has been made or offered by the defendant to
plaintiff in this civil action, nor has there been any release or
order executed by the party pertaining to the civil action in
controversy.
----
Plaintiff avers that on April 24, 1995, he filed a
separate civil action in Rutherford County, Tennessee
(#34914), against defendant and a co-defendant, John
Mitchell Byrnes, for personal injuries rising out of a
motorcycle accident which occurred on defendant’s property
in Rutherford County, Tennessee. Plaintiff admits that all
issues between the respective parties in civil action #34914
were resolved, and an agreed order of dismissal was entered.
The agreed order of dismissal, a copy of which being attached
hereto, contains the following determinant language:
As evidenced by the signatures hereon
of the Plaintiff and the signature hereon of the
attorney representing the Defendants, it
appears to the court that all matters in
controversy by and between these parties have
been compromised and settled and that this
case should be dismissed with prejudice. By
signing this Order, the Plaintiff specifically
acknowledges that this is a complete and final
dismissal of this lawsuit and that he will not
have the right to re-file this lawsuit against
either Defendant in any Court. (Italics ours)
Plaintiff submits by the clear and plain language of the
fact of the agreed order of dismissal, this order only dismissed
the suit in controversy between the named parties and no
other litigation between these parties.
On December 11, 1996, defendant filed “Defendant’s Response to Plaintiff’s Reply”
stating:
Plaintiff LANDRY sued Defendant RUDD in the state
of Louisiana, although RUDD never physically appeared in
Louisiana, on the basis of a breach of contract, with that
complaint having been filed in Louisiana on or about
December 1, 1994, alleging breach of a “consulting
agreement” executed by the parties within the state of
Tennessee on February 24, 1994.
Later, on April 24, 1995, LANDRY filed a frivolous
personal injury tort action in Rutherford County, Tennessee
in case number 34914 against Defendant RUDD and a Co-
Defendant, Dr. John M. Brynes, arising out of his injury while
riding a motorcycle on Defendant’s property in Rutherford
County, Tennessee. The file attachments reflect that DR.
RUDD initially attempted to act pro se in Louisiana and
-6-
unfortunately made a general appearance. Subsequently, on
August 15, 1995, following various activities in both forums,
Plaintiff LANDRY and the Defendants in Rutherford Circuit
case number 34914 entered an “Agreed Order of Dismissal”
which included the following:
“ . . . All matters in controversy by and
between these parties have been compromised
and settled . . . .”
4. Defendant RUDD asserts that LANDRY’S
execution of that instrument with RUDD constitutes exactly
what the order says: A resolution of “all matters in
controversy”. It is true that, subsequent to that date, LANDRY
persisted (or attempted to persist) in pursuing his Louisiana
litigation.
The judgment of the Trial Court is quoted above.
TCA Title 26, Chapter 6 is entitled “Enforcement of Foreign Judgments.” Section
26-6-106 of said chapter reads as follows:
Appeal or stay of judgment. - (a) If the judgment
debtor shows the court of this state that an appeal from the
foreign judgment is pending or will be taken, or that a stay of
execution has been granted, the court shall stay enforcement
of the foreign judgment until the appeal is concluded, the time
for appeal expires, or the stay of execution expires or is
vacated.
(b) If the judgment debtor shows the court of this state
any ground upon which enforcement of a judgment of any
court of this state would be stayed, the court shall stay
enforcement of the foreign judgment for an appropriate
period.
Subsection (b) of the quoted statute requires the Tennessee court to stay, the
enforcement of foreign judgments in this state “for an appropriate period upon any ground
upon which a Tennessee judgment would be stayed.”
The voluminous pleading recited above demonstrates the following:
1. “On or about December 1, 1994,” Curtis L. Landry sued John Daniel Rudd
in the foreign court for breach of a contract executed on February 24, 1994.
-7-
2. On April 24, 1995, Curtis L. Landry sued John Mitchell Byrnes and J. Daniel
Rudd in the Tennessee Court in a “personal tort claim; and, on August 16, 1995, an “Agreed
Order of Dismissal” was entered in the Tennessee court reciting that “all matters in
controversy by and between these parties have been compromised and settled, and that this
case should be dismissed with prejudice,” and ordering that “this cause be dismissed with
prejudice.”
3. John Daniel Rudd filed an answer, personally appeared before the foreign
court and subsequently employed counsel to represent him before the foreign court.
4. The two foreign judgments were entered on January 16, 1996, and April 16,
1996, respectively.
5. The December 30, 1996, judgment of the Tennessee court states merely that:
“The defendant’s objection to authentication on the
basis of accord and satisfaction are not well taken.”
----
It is therefore ordered --- that defendant’s answer and
objection to authentication is hereby denied.
Although the expression, “judgment on the pleadings” does not appear in the
pleadings or judgment, it may be said that the effect of the judgment of the Trial Court was
that of a judgment on the pleadings as authorized by TRCP 12.03 because the answer of
defendant admitted the material allegations of the complaint and did not assert an effective
defense.
Said rule reads as follows:
Motion for Judgment on the Pleadings. - After the
pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings. If,
on a motion for judgment on the pleadings, matters outside
the pleadings are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be
-8-
given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
It may be said with equal reason that the “judgment on the pleadings” should be
treated as a summary judgment.
From a review of the entire record, this Court concludes that the result reached by the
Trial Court was correct because the appellant had adequate opportunity to present to the
foreign court his defense of accord and satisfaction of the claim asserted in the foreign court,
that he failed to present such defense to the foreign court, and that his failure to do so
constituted a waiver of such defense.
Stated otherwise, defendant is not entitled to a second opportunity to present his
defense, or the judgment of the foreign court is res judicata as to such defense.
Moreover, this Court is of the opinion that, under the facts, and circumstances
reflected by this record, the settlement and satisfaction of a tort claim against two defendants
did not satisfy a contract claim against one of the defendants in the tort case.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against
the defendant and his surety. The cause is remanded to the Trial Court for enforcement of
its judgment.
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
-9-
-10-
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
CURTIS L. LANDRY, JR. d/b/a )
LANDRY AND ASSOCIATES, ) Rutherford Circuit
) No. 36960
Plaintiff/Appellee. )
)
VS. ) Appeal No.
) 01A01-9707-CV-00303
JOHN DANIEL RUDD, )
Defendant/Appellant.
)
) FILED
March 6, 1998
ORDER
Cecil W. Crowson
Appellate Court Clerk
The defendant/appellant has filed a respectful petition to rehear which has been duly
considered and which is respectfully denied.
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
___________________________________
BEN H. CANTRELL, JUDGE
___________________________________
WILLIAM C. KOCH, JR., JUDGE
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1441
___________
Pamela Rhodes, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Arkansas State University, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: August 4, 2010
Filed: August 11, 2010
___________
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Pamela Rhodes appeals the district court’s1 adverse grant of summary judgment
in her employment-discrimination action against Arkansas State University. After
careful de novo review, see Hannoon v. Fawn Eng’g Corp., 324 F.3d 1041, 1045 (8th
Cir. 2003), we find no error in the district court’s order, see id. at 1048 (elements of
harassment claim); Box v. Principi, 442 F.3d 692, 696 (8th Cir. 2006) (elements of
race-discrimination and retaliation claims). Accordingly, we affirm. See 8th Cir. R.
47B. We deny appellee’s pending motion as moot.
______________________________
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2269
MAZHAR KHAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 20, 2011 Decided: April 29, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Mazhar Khan, Petitioner Pro Se. Paul Thomas Cygnarowicz, Daniel
Eric Goldman, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mazhar Khan, a native and citizen of Pakistan,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) denying his motion to reconsider. We have
reviewed the administrative record and the Board’s order and
find that the Board did not abuse its discretion in denying the
motion to reconsider as untimely. See 8 C.F.R. § 1003.2(b)(2)
(2010). We therefore deny the petition for review for the
reasons stated by the Board. See In re: Khan (B.I.A. Oct. 15,
2010). * 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.
PETITION DENIED
*
We have limited our review to the Board’s denial of Khan’s
motion to reconsider. Although Khan raises issues in his
informal brief pertaining to the Board’s December 10, 2009
decision, which upheld the immigration judge’s denial of Khan’s
motion to reopen, we lack jurisdiction over these claims as Khan
did not file a timely petition for review of that decision. See
Stone v. INS, 514 U.S. 386, 394, 405 (1995).
2
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945 So.2d 1104 (2005)
FLOYD PATRICK MEEKS
v.
STATE
No. CR-04-1574
Court of Criminal Appeals of Alabama
July 26, 2005.
Decision without published opinion. Dismissed.
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13 A.3d 976 (2010)
COM.
v.
PARKS.
No. 3031 EDA 2009.
Superior Court of Pennsylvania.
September 9, 2010.
Affirmed.
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129 B.R. 505 (1991)
In re THYMEWOOD APARTMENTS, LTD., Bel Aire Apartments II, Ltd., Bel Aire Apartments, Ltd., Centre Lake Apartments, Ltd., Centre Lake Apartments, II Ltd., Blossom Corners Apartments II, Ltd., Centre Lake Apartments III, Ltd., Debtors.
Bankruptcy Nos. 2-90-01614, 2-90-01717, 2-90-01827 to 2-90-01829, 2-90-01836, 2-90-02096.
United States Bankruptcy Court, S.D. Ohio, E.D.
June 28, 1991.
*506 *507 Thomas I. Blackburn, Christine W. Schmenk, John Andrew Merkle, Denmead, Blackburn & Brown, Columbus, Ohio, for Thymewood Apartments, Ltd., Blossom Corners Apartments II, Ltd.
Leonard A. Carlson, Todd R. Marti, Schottenstein, Zox & Dunn, Columbus, Ohio, for Amerifirst Bank.
Leon Friedberg, Benesch, Friedlander, Coplan & Aronoff, Columbus, Ohio, for Official Committee of Unsecured Creditors.
Jay Alix, Jay Alix & Associates, Southfield, Mich., Chapter 11 Trustee.
Michael L. Cook, Sally M. Henry, Skadden, Arps, Slate, Meagher & Flom, New York City, Marilyn Shea-Stonum, Jones, Day, Reavis & Pogue, Columbus, Ohio, co-counsel to the trustee.
Charles M. Caldwell, Asst. U.S. Trustee, Columbus, Ohio, Columbus Office of the United States Trustee for Region IX.
Harvey S. Minton, Minton & Leslie, Columbus, Ohio, Charles J. Taunt, Charles J. Taunt & Associates, Birmingham, Mich., Gary H. Cunningham, Kramer Mellen, P.C., Southfield, Mich., special counsel to the Trustee of the Consolidated Estate.
James Bownas, Legal Counsel, Cardinal Industries, Inc., Columbus, Ohio.
OPINION AND ORDER ON REMAND
BARBARA J. SELLERS, Bankruptcy Judge.
I. Procedural History and Facts
These matters are before the Court following an appeal by Amerifirst Bank N.A. ("Amerifirst" or "RTC"[1]) of this Court's decision of In re Cardinal Industries, Inc., 118 B.R. 971 (1990). The District *508 Judge remanded these matters to this Court "for reconsideration of its opinion in light of the adopted construction of the Florida statute." In re Thymewood Apartments, Ltd., 123 B.R. 969, 979 (S.D.Ohio 1991) ("Remanding Opinion").
These matters originally came before this Court as core proceedings on each debtor's motion seeking authorization to use cash collateral. 28 U.S.C. §§ 1334, 157(b) and 11 U.S.C. § 363(c)(2). Each motion involved identical issues of Florida law, and the Court heard and decided them together.
The seven partnerships whose motions were heard jointly (collectively "Partnership Debtors")[2] are each a debtor in a Chapter 11 case pending before this Court. Each is the owner of real property located in the state of Florida on which an apartment complex has been built. Each partnership has Cardinal Industries, Inc. ("CII") or its subsidiary, Cardinal Industries of Florida, Inc. ("CIF") as its managing general partner. Both CII and CIF are Chapter 11 debtors before this Court.
The RTC holds a promissory note executed by each Partnership Debtor and secured by a mortgage, assignment of rents and security agreement in the signatory partnership's real property. The dispute centers on the interpretation and application of the assignment of rent provision contained in each mortgage.
Cardinal Industries Mortgage Company ("CIMC"), also a Chapter 11 debtor in this Court, originated six of the seven loans and subsequently assigned the corresponding notes and mortgages to Amerifirst. Amerifirst originated and prepared the documents for the remaining partnership loan. The assignment of rents clause in the CIMC documents states:
26. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. As part of the consideration for the indebtedness evidenced by the Note, Borrower hereby absolutely and unconditionally assigns and transfers to Lender all the rents and revenues, including all security deposits, of the Project, including those now due, past due, or to become due by virtue of any lease or other agreement for the occupancy or use of all or any part of the Project, regardless of to whom the rents and revenues of the Project are payable. Borrower hereby authorizes Lender or Lender's agents to collect the aforesaid rents and revenues and hereby directs each tenant of the Project to pay such rents to Lender or Lender's agents; provided, however, that prior to written notice given by Lender to Borrower of the breach by Borrower of any covenant or agreement of Borrower in this Instrument, Borrower shall collect and receive all rents and revenues of the Project as trustee for the benefit of Lender and Borrower, to apply the rents and revenues so collected to the sums secured by this Instrument in the order provided in paragraph 3 hereof with the balance, so long as no such breach has occurred, to the account of Borrower, it being intended by Borrower and Lender that this assignment of rents constitutes an absolute assignment and not an assignment for additional security only. Upon delivery of written notice by Lender to Borrower of the breach by Borrower of any covenant or agreement of Borrower in this Instrument, and without the necessity of Lender entering upon and taking and maintaining full control of the Project in person, by agent or by a court-appointed receiver, Lender shall immediately be entitled to possession of all rents and revenues of the Project as specified in this paragraph as the same become due and payable, including but not limited to rents then due and unpaid, and all such rents shall immediately upon delivery of such notice be held by Borrower as trustee for the benefit of Lender only; provided, however, that the written notice by Lender to Borrower of the breach by Borrower shall contain a statement *509 that Lender exercises its rights to such rents. . . .
The assignment of rents in the Amerifirst document states:
18. As additional security for the payment of the indebtedness herein described and the performance of the covenants herein contained, Mortgagor hereby assigns to Mortgagee all the rents, income and profits due and to become due under leases of the premises made both before and after the date hereof, Mortgagor reserving possession and the right to collect such rents, income and profit only so long as no default exists in the payment of the indebtedness secured hereby or in the performance of the covenants and agreements herein contained. In the event of such a default, Mortgagee shall have the right to possession and to collect all the rents, income and profits and Mortgagor herewith directs any lessee, tenant, statutory trustee, or other person in possession thereof to pay and deliver same to Mortgagee, herewith granting and releasing to Mortgagee all right to retain possession and to collect such rents, income and profits in such event. This Assignment shall become null and void upon the release of this mortgage.
The Florida Statute relating to rent assignments provides:
A mortgage may provide for an assignment of rents. If such assignment is made, such assignment shall be absolute upon the mortgagor's default, becoming operative upon written demand made by the mortgagee. Upon application by the mortgagee, a court of competent jurisdiction may require the mortgagor to deposit such rents in the registry of the court pending adjudication of the mortgagee's right to the rents, any payments therefrom to be made solely to protect the mortgaged property and meet the mortgagor's lawful obligations in connection with the property. Any undisbursed portion of said rents shall be disbursed in accordance with the court's final judgment or decree.
Fla.Stat. § 697.07 (1987).
In its prior decision this Court held, as a matter of law, that Fla.Stat. § 697.07 did not effectuate an absolute transfer of ownership rights in the rents, but merely changed the procedure by which a mortgagee could enforce its security interest in rents. Cardinal, 118 B.R. at 979. Based upon that interpretation of Florida law, this Court authorized each Partnership Debtor to use cash collateral for the payment of ordinary and necessary expenses to maintain and operate its apartment property.
On appeal the District Judge interpreted Fla.Stat. § 697.07 as allowing parties to provide for an absolute transfer of ownership rights in the rents. The District Judge recognized that this interpretation effectuated a change in Florida law which was both substantive in nature and, with regard to the last part of the statute, also procedural in nature. Although that court determined the meaning of Fla.Stat. § 697.07, it did not apply that meaning to the facts of these cases. Instead, the District Judge remanded the cases to this Court "for determination of the effect, if any, this construction has on its earlier decision that the rent proceeds became part of the debtor's estate." Remanding Opinion at 979. The District Judge specifically "express[ed] no opinion on the operation or effect of the statute." Remanding Opinion at 979.
II. The Position of Each Party on Remand
Following the remand each party and the Official Committee of Unsecured Creditors ("Committee") for the substantively consolidated estates of Cardinal Industries, Inc. and its related corporate entities submitted briefs. The Committee also participated in oral argument. The Partnership Debtors and RTC submitted post-argument briefs and the Court took the matters under advisement.
As a result of the District Judge's construction of the Florida statute, the parties' respective positions have changed. The RTC now contends that the assignment of rents clauses, combined with the District Judge's interpretation of Fla.Stat. § 697.07, grant it absolute ownership rights in the rents. Thus, the rents are not property of *510 the Partnership Debtors' estates and are not cash collateral. RTC concludes that the Partnership Debtors have no right to the rents even to pay the normal operating expenses of their properties because RTC "owns" and controls the usage of those rents.
The Partnership Debtors contend that even with the District Judge's construction of Fla.Stat. § 697.07, the rents still should be considered property of their respective bankruptcy estates and, thus, cash collateral. Because the loan documents with the rent assignments originated prior to the effective date of Fla.Stat. § 697.07, they argue that the statute's substantive changes of Florida law do not apply to these cases. The Partnership Debtors conclude, that even if Fla.Stat. § 697.07 is applicable, the agreements do not provide for absolute transfer of ownership rights in the rents to RTC. Finally, even if it applies to these mortgage agreements, Partnership Debtors argue, as suggested by the District Judge, that Fla.Stat. § 697.07 is preempted by the Bankruptcy Code.
III. Issues To Be Determined
1. Under Florida Constitutional provisions, can Fla.Stat. § 697.07 be applied retroactively to the interests in rents the Partnership Debtors granted CIMC and Amerifirst?
2. If Fla.Stat. § 697.07 can be applied retroactively, does it apply to the assignment of rents provisions before the Court?
3. If Fla.Stat. § 697.07 can be applied retroactively and applies to these provisions, is its application preempted by the provisions of the Bankruptcy Code?
IV. Discussion
A. Can Florida Statute § 697.07 Be Applied Retroactively?
1. Retroactivity Under Florida Law Generally
Florida law establishes that a newly enacted law applies only prospectively unless the legislature clearly indicates otherwise. Walker & La Berge Inc., v. Halligan, 344 So.2d 239, 241 (Fla.1977) and cases cited therein. Further, Florida courts will not infer that the legislature intended retroactive application without an express provision for it. Fleeman v. Case, 342 So.2d 815, 817 (Fla.1976). Rather, "the forward or backward reach of proposed laws is irrevocably assigned in the forum best suited to determine that issue" (the legislature). Fleeman at 817.
Even if the Florida legislature intends a statute to apply retroactively, the constitutionality of such application must still be examined. Although Fla.Stat. § 697.07 does not exhibit facial legislative intent for retroactivity, the parties have raised numerous issues regarding its retroactive application.
The Florida Constitution provides that no "law impairing the obligations of contracts shall be passed." Art. I § 10. Further, Florida courts have determined that "safeguarding the validity of [mortgages] and assuring the right of enforcement thereof, is an obligation of constitutional dimensions." David v. Sun Federal Savings & Loan, 461 So.2d 93, 95 (Fla.1984).
If a statute has the effect of rewriting a contract or, more specifically, changing the substantive rights of the parties under a contract, the statute cannot be applied retroactively regardless of legislative intent. Manning v. Travelers Insurance Co., 250 So.2d 872, 874 (Fla.1971). However, if the statute merely changes the procedure by which a party enforces its rights under a contract, the constitutional prohibition against retroactivity is not violated. Pinellas County v. Banks, 154 Fla. 582, 19 So.2d 1, 3 (1944). Thus a distinction must be made between substantive and procedural changes in statutes.
Coupled with these principles of constitutional law are important principles of Florida contract law. Generally the laws in effect when a contract is formed govern the enforceability of that contract. That law becomes a contract term, as if expressly stated therein. Ivey v. State ex rel. Watson, 3 So.2d 345, 348 (Fla.1941). Thus, subsequent changes in statutory law *511 cannot alter the substantive law in effect when the contract is formed.
2. Florida Substantive Law Prior to Florida Statute § 697.07
The RTC contends that substantive Florida law was not changed by the enactment of Fla.Stat. § 697.07. RTC relies upon an earlier Florida statute, located in a chapter entitled "Savings & Loan Associations," which provided in part:
(4) Security Instrument. Every real estate loan shall be secured by a mortgage, deed of trust or other transaction or instrument upon the real estate securing the loan, according to any lawful and recognized practice which is suited to the transaction. Any such instrument or transaction constituting a lien or claim is herein termed a "mortgage." Such mortgage shall provide specifically for full protection to the association with respect to such loan and additional advances and the usual insurance risks, ground rents, taxes, assessments, other governmental levies, maintenance, and repairs. It may provide for an assignment of rents, and, if such assignment is made, such assignment shall be absolute upon the borrower's default, becoming operative upon written demand made by the association. All such mortgages shall be recorded in accordance with the law of this state.
Fla.Stat. § 665.0731 (1969), repealed (1981).[3]
RTC contends that this statute and, thus, Florida law, permitted the absolute transfer of ownership interests in rents prior to the enactment of Fla.Stat. § 697.07. Thus, argues RTC, retroactive application of Fla. Stat. § 697.07 is not proscribed because Fla.Stat. § 697.07 does not change the substantive law. However, the Partnership Debtors contend that this statute, buried in a chapter relating to "Savings & Loan Associations," is inapplicable. The Partnership Debtors also point out that this statute has never been interpreted by any Florida court.
The RTC counters that former Fla. Stat. § 665.0731(4) should be given the same interpretation as the District Judge's controlling interpretation of Fla.Stat. § 697.07. As support for that position RTC relies upon the Florida Supreme Court case of Oppenheimer & Co. Inc. v. Young, 456 So.2d 1175 (Fla.1984), vacated, 470 U.S. 1078, 105 S.Ct. 1830, 85 L.Ed.2d 131 (1985). However, Oppenheimer refers to the interpretations of similar statutes (securities laws) in different jurisdictions. Further, while a newly enacted statute is given an interpretation similar to a "prototype statute," the reverse is not true. See, 456 So.2d 1175. RTC's attempt to bootstrap the District Judge's interpretation of Fla. Stat. § 697.07 to former Fla.Stat. § 665.0731(4) is not persuasive.
An unused, uninterpreted, repealed state statute should not be given life for the first time by a bankruptcy judge sitting in a district unrelated to that state. No Florida court ever interpreted or relied upon Fla.Stat. § 665.0731(4), despite its existence in excess of ten years. More importantly, there is no indication that this provision, buried in a section captioned "Security Instrument," was intended to do more than establish a procedure for the enforcement of a security interest in rents. Even that attempt appears to have failed, as Florida courts continued to follow the common law regarding rent assignments. Bornstein v. Somerson, 341 So.2d 1043 (Fla.Dist.Ct.App.1977). The well-established common law required a mortgagee to obtain possession of the mortgaged real property, by consent of the mortgagor or the appointment of a receiver or foreclosure, prior to any entitlement to the rents. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 244 (1930) and White v. Anthony Investment Co., 119 Fla. 108, 160 So. 881, 882 (1935).
Specifically, the Bornstein court held: "the general rule with respect to a mortgage pledging rents, issues and profits is that the mortgagee becomes entitled to receive *512 such rents, issues and profits to be credited against his mortgage from the time he takes possession of the property either by consent or through the appointment of a receiver in foreclosure proceedings." Bornstein, 341 So.2d 1043, 1048-1049. See, also, In the Matter of Hamlin's Landing Joint Venture, 77 B.R. 916, 919 (Bankr.M.D.Fla.1987) and In re Parham, 72 B.R. 604, 605 (Bankr.M.D.Fla. 1987). These courts consistently enforced rent assignments as security interests under Florida common law and ignored the existence of Fla.Stat. § 665.0731(4).
3. Application of The Principles of Retroactivity to Florida Statute § 697.07
The District Judge in the Remanding Opinion determined that Fla.Stat. § 697.07 deviated both substantively and procedurally from prior Florida law. Specifically, as a matter of law, the District Judge interpreted Fla.Stat. § 697.07 to allow parties to agree to an absolute transfer of ownership rights in rents upon the mortgagor's default. Prior to Fla.Stat. § 697.07, Florida courts refused to interpret rent assignments in this manner and treated them as security interests only. Thus, the District Judge's holding and a review of prior Florida law indicate that Fla.Stat. § 697.07 changed the substantive law of Florida regarding the enforceability of absolute rent assignments.
The District Judge recognized that no Florida State Court had squarely decided the appropriate interpretation of Fla.Stat. § 697.07 and, thus, relied upon bankruptcy court decisions. Since the District Judge's decision, two Florida state courts have held that Fla.Stat. § 697.07 is merely a remedial or procedural change in Florida law and, thus, the statute may be retroactively applied. See, Nassau Square Association v. Insurance Commissioner of California, 579 So.2d 259 (Fla.Dist.Ct.App.1991) and Oakbrooke Associates v. Insurance Commissioner of California, 581 So.2d 943 (Fla.Dist.Ct.App.1991).
Although the Florida Supreme Court has yet to definitively interpret Fla.Stat. § 697.07, it has indicated that the section was meant "to create a simple, equitable and inexpensive method by which a mortgage lender could enforce an assignment of rents contract." Haven Federal Savings & Loan Association v. Kirian, 579 So.2d 730, 733 fnt. 1 (Fla.1991).
However, given the District Judge's construction and the controlling principles of Florida constitutional law, this Court must find that Fla.Stat. § 697.07 cannot be applied retroactively. Indeed, this Court specifically recognized that necessary result in its original opinion. Cardinal at 979.
Ironically, the cases relied upon by RTC while asserting ownership rights on appeal, are the very cases which prohibit the retroactive application of Fla.Stat. § 697.07. See In re 163rd Street Mini Storage, Inc., 113 B.R. 87 (Bankr.S.D.Fla.1990). See, also, In re Camelot Associates Ltd., 102 B.R. 161, 166 (Bankr.D.Minn.1989). The Camelot court interpreted Fla.Stat. § 697.07 as the District Judge did in these cases on appeal as a substantive change in Florida law and specifically held:
The language of FLA.STAT. § 697.07 contains no explicit language authorizing a retroactive application of the statute. The structure of the Florida law governing the enforcement of assignments of rents prior to October 1, 1987, gave Debtors certain vested rights and expectations in the ongoing income stream from their mortgaged properties, however qualified and/or limited in scope and duration those rights may have been in the event of their default under the mortgages. Applying the statute retroactively to the relationships in these cases created under instruments executed three to four years before the effective date of the statute would impermissibly impair these rights and expectations. . . .
Camelot at 166.
Both the Camelot court's and this Court's analysis establish that under Florida Constitutional law, Fla.Stat. § 697.07 cannot be applied retroactively when it is interpreted to allow absolute transfers of ownership rights in rents.
*513 The effective date of Fla.Stat. § 697.07 is October 1, 1987. The loan documents of the Partnership Debtors were executed prior to that date.[4] Thus, when the parties executed the rent assignments, Florida common law controlled. That law characterized those assignments as security interests only and required possession, a receiver, or foreclosure prior to realization of secured party's interest in the rents. The parties expected this result. Therefore, because the District Judge's interpretation of Fla.Stat. § 697.07 changes the Florida substantive law regarding rent assignments, § 697.07 cannot be retroactively applied to these Partnership Debtors' loan documents.
Accordingly, the rents, even after default, are "owned" by the Partnership Debtors, are property of each debtor's estate and are cash collateral under 11 U.S.C. § 363 and § 552. Pursuant to this Court's initial opinion, each Partnership Debtor is authorized to use this cash collateral to pay ordinary, necessary expenses to maintain and operate its property.
B. The Intent of the Parties as Expressed in Their Agreements.
Because all parties and this Court desire full resolution of these matters, some factual determinations are also important. Even if this Court is in error and Fla.Stat. § 697.07 may be applied retroactively, such application would be appropriate only if the parties intended by their agreements to transfer ownership rights in the rents under the assignment.
The Remanding Opinion gave this Court explicit instructions to determine the effect, if any, its construction of Fla.Stat. § 697.07 has on this Bankruptcy Judge's earlier decision that the rent proceeds became part of each Partnership Debtor's estate. In remanding this case, the District Judge specifically "expresses no opinion on the operation or effect of the statute." Remanding Opinion at 979. (emphasis added.) Because the District Judge made no factual determinations, the application of Fla.Stat. § 697.07, as a matter of fact, to the agreements at issue is left to this Court.
The District Judge held "that the Florida statute allows for the conferral of an ownership interest in the rents generated from the property . . . upon default by the mortgagor and notice given by the mortgagee." Remanding Opinion at 797. Under this interpretation, Fla.Stat. § 697.07 allows the parties to agree to a transfer of ownership rights in the rents. It does not mandate such transfer without an agreement. The parties may still agree to some other interest in the rents short of absolute ownership rights.
The language in an agreement is the starting point for determining the parties' intent. See Boat Town U.S.A. v. Mercury Marine Division of Brunswick Corp., 364 So.2d 15, 17 (Fla.Dist.Ct.App. 1978). Under Florida law a court has a duty "to place itself in the situation of the parties and from a consideration of the surrounding circumstances the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed." Bornstein, 341 So.2d at 1047. Further, the content and language of the entire provision must be examined, not just one phrase of the provision. See, West Yellow Pine Co. v. Sinclair, 90 So. 828, 831 (Fla.1922) and Blackshear MFG. Ga. v. Fralick, 88 Fla. 589, 102 So. 753, 754 (1925).
*514 Because the evidence is scant regarding the parties' intent, the Court will look primarily to each agreement to determine intent. Of the seven rent assignment provisions at issue, Amerifirst was a party only to one. The language of that provision is painfully clear on its face without further interpretation by this Court:
18. As additional security for the payment of the indebtedness herein described and the performance of the covenants herein contained, Mortgagor hereby assigns to Mortgagee all the rents, income and profits due and to become due under leases of the premises made both before and after the date hereof, Mortgagor reserving possession and the right to collect such rents, income and profit only so long as no default exists in the payment of the indebtedness secured hereby or in the performance of the covenants and agreements herein contained. In the event of such a default, Mortgagee shall have the right to possession and to collect all the rents, income and profits and Mortgagor herewith directs any lessee, tenant, statutory trustee, or other person in possession thereof to pay and deliver same to Mortgagee, herewith granting and releasing to Mortgagee all right to retain possession and to collect such rents, income and profits in such event. This Assignment shall become null and void upon the release of this mortgage.
The Court is unable to conceive any argument that this provision is anything more than a security interest in the rents. Its very terms state "as additional security." Further, nothing in that provision even mentions "absolute" or "ownership." Upon default Amerifirst was entitled only to possessory, not ownership, rights in the rents for the purpose of collection and application to the debt. Thus, even if Fla. Stat. § 697.07 could apply retroactively to this provision, the parties did not agree to such an application.
Ironically, the remaining six agreements between each Partnership Debtor and CIMC provide RTC a better argument than its own documents. However, because RTC was not a party to these agreements, RTC has no first-hand knowledge of the parties' intent.
As a matter of course, this Court has observed that CIMC used a standard form of document for most of the mortgages it originated. That form was used in a large number of states and did not appear to contemplate variations in state law of the nature asserted by RTC.
To support its conclusion that absolute ownership was intended by the other parties, RTC relies primarily upon the language set forth earlier in this opinion that the: "Borrower hereby absolutely and unconditionally assigns and transfers to Lender [CIMC] all the rents and revenues." However, this phrase is taken out of context. It is prefaced by "As part of the consideration for the indebtedness." Thus, the rent assignments are an integral part of the mortgage and cannot be separated.
The District Judge recognized the parties' agreements are ambiguous. Remanding Opinion at 974. At first glance it appears that the parties to the agreement (CIMC and the Partnership Debtors) intended an "absolute assignment" and "not an assignment for additional security only." Such an inferred intent, however, is inconsistent with other provisions of the document which place a duty upon the lender to apply the rents to the costs of maintaining the property following the mortgagor's default.[5] This required duty of the lender is inconsistent with lender's alleged absolute ownership interest in the rents. Further, Paragraph 26 provides "this assignment *515 of rents shall terminate at such time as this Instrument ceases to secure indebtedness held by lender." Presumably if the debtor cured the default, the debtor is entitled to collect the rents again.
From a reading of the entire agreement the parties clearly did not intend to separate the rents from the underlying property. Rather, the rents, as provided in these agreements, are inextricably intertwined with the real estate. The provisions of the assignment of rents clause cannot consistently be read to effectuate transfer of absolute ownership rights in rents.
This last factual conclusion is the only reasonable reconciliation of conflicting provisions in that agreement. This position is supported by Judge Yaco's "common sense observation" in In re Rancourt, 123 B.R. 143 (Bankr.D.N.H.1991). Although Rancourt involved an oversecured creditor, the following reasoning is applicable here:
[There is] the common sense observation that "rents do not spring from the ground" and that if the mortgagee seeks to collect the rents the mortgagee must likewise undertake the responsibilities and liabilities of management and operation of the business premises to justify receiving future rent payments. Cf. In re Prichard Plaza Assoc. Ltd. Partnership, 84 B.R. 289, 298 (Bankr.D.Mass. 1988). To do otherwise would in effect have the mortgagor act as an indentured servant acting for the mortgagee in operation of the business while allowing the mortgagee to take the fruits of the mortgagor's continuing efforts without any of the liabilities.
Rancourt at 148.
Especially in cases involving income-producing property, the rental income is crucial to effective operation of the property in or out of bankruptcy. The rents are the partnership's only means to pay ordinary operating costs for the property. If the Partnership Debtor retains ownership of the property but loses use of its rents, those expenses may go unpaid. Failure to pay expenses probably will cause a decrease in income, and, therefore, a decrease in value, as the property deteriorates.
When a default has occurred, the rental income of the property becomes even more important to the partnership. To conclude that the parties agreed that the mortgagee is entitled to absolute ownership of the rents (not just possession) upon the mortgagor's default would ignore common sense and would ignore many other provisions of the agreement.
The Court's factual conclusions based upon the parties' agreements follow the historical interpretations of rent assignment provisions. As set forth above, prior to 1987, Florida law consistently treated such agreements as security interests only. With the enactment of Fla.Stat. § 697.07, the District Judge hearing these cases on appeal found that parties could agree to something more. However, this Court believes that even if Fla.Stat. § 697.07 applies to these cases, these agreements have too many internal conflicts to be read as indicating a clear intent to effectuate an absolute ownership transfer in rents. Such a departure from previous practice requires a stronger showing by RTC that a different result was intended. RTC did not make that showing here.
The better approach is to read these agreements consistent with the historical reading of similar agreements and conclude that, whatever the parties intended, it was not an absolute transfer of ownership rights in the rents to the mortgagee upon the mortgagor's default. The apparent objective of the parties was to provide the mortgagee with a security interest in rents and to permit the mortgagee to protect its interest in the real property after default. This factual conclusion is based upon a rational, reasonable reconciliation of the entire agreement and not an overly technical analysis of certain selected provisions.
C. Preemption.
The Remanding Opinion further suggested that a preemption issue may arise on remand. The District Judge referred to a United States Supreme Court case decided under the Bankruptcy Act of 1898 which held that parties' respective rights in rents are determined under state law unless those state laws are preempted by a provision *516 of federal bankruptcy law. Butner v. U.S., 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979).
RTC and the Debtors briefed the preemption issues. However, the Court has determined that Fla.Stat. § 697.07 either cannot be applied retroactively as a matter of law or does not apply to these facts because the parties did not intend to transfer absolute ownership rights. To decide the preemption issue presupposes that Fla.Stat. § 697.07 applies and that the parties intended an absolute transfer of ownership interests in rents.
This Court is hesitant to decide such an important issue as preemption when such decision is not required for resolution of the matters before the Court. Based upon the finding that Fla.Stat. § 697.07 does not apply to the agreements between these Partnership Debtors and Amerifirst, the federal preemption issue is not ripe for adjudication and will not be decided at this time.
V. Conclusion
Based upon the foregoing, the Court finds that Fla.Stat. § 697.07, as interpreted by the District Judge, cannot be applied retroactively to the loan agreements of these seven Partnership Debtors. Further, the Court finds that the parties did not intend to create an absolute transfer of ownership rights in the rents, even if, as the District Judge found, Fla.Stat. § 697.07 permits such transfers.
Accordingly, each Partnership Debtor retains the ownership of its rents and those rents are property of each Partnership Debtor's estate. Although those rents are the cash collateral of RTC, consistent with this court's initial opinion, each Partnership Debtor may use the rents only to pay the ordinary and necessary operating expenses to maintain its property. Such usage is subject to this Court's prior orders regarding the use of cash collateral. See, In re Willowood East Apartments of Indianapolis II, Ltd., 114 B.R. 138 (Bankr.S.D.Ohio 1990).
IT IS SO ORDERED.
JUDGMENT ENTRY
Judgment in the above captioned cases in the matters on remand is hereby entered in favor of each Partnership Debtor listed above and against Resolution Trust Corp., as conservator for Amerifirst Bank N.A., pursuant to an opinion and order dated June 28, 1991.
IT IS SO ORDERED.
NOTES
[1] The Resolution Trust Corporation is now the conservator for Amerifirst Bank, N.A. Consequently, depending on the timing, reference is made either to "Amerifirst" or "RTC."
[2] Thymewood Apartments Ltd., Blossom Corners II, Ltd., Bel Aire Apartments I, Ltd., Bel Aire Apartments II, Ltd., and Centre Lake Apartments I, Ltd., Centre Lake Apartments II, Ltd., and Centre Lake Apartments III, Ltd.
[3] Neither party was aware of this statute until shortly before the oral argument on remand. Both RTC and the Partnership Debtors later briefed this issue.
[4]
Bel Aire
Apartments, Ltd.March 27, 1985
Bel Aire
Apartments, Ltd. II August 1, 1985
Centre Lake
Apartments, Ltd. I September 24, 1986
Centre Lake
Apartments, Ltd. II September 24, 1986
Centre Lake
Apartments, Ltd. III September 24, 1986
Blossom
Apartments, Ltd. II December 22, 1981
Thymewood
Apartments, Ltd. December 5, 1984
[5] Paragraph 26 provides in part:
All rents and revenues collected subsequent to delivery of written notice by Lender to Borrower of the breach by Borrower of any covenant or agreement of Borrower in this Instrument shall be applied first to the costs, if any, of taking control of and managing the Project and collecting the rents, including, but not limited to, attorney's fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the Project, premiums on insurance policies, taxes, assessments and other charges on the Project, and the costs of discharging any obligation or liability of Borrower as lessor or landlord of the Project and then to the sums secured by this Instrument.
| {
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In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-06-013 CV
____________________
ARNOLD RAY LAMOTTE, JR., Appellant
V.
KEITH MCCLENDON, WARREN WORTHY, CHUCK BISCOE,
LINDA MARTIN, MELODYE NELSON, JAMES JONES, KEVIN COOK,
MARK W. COLE, NEEL G. BURNABY, JR., AND
JOHN MORIARTY, Appellees
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. CIV 22,456
MEMORANDUM OPINION
Arnold Ray Lamotte, Jr. is an inmate of the Texas Department of Criminal Justice,
Institutional Division ("Department"). He appeals the trial court's dismissal of a civil lawsuit
he filed against Keith McClendon, allegedly a Department employee, and others. (1) In his
petition, Lamotte made various claims against the defendants regarding alleged violations
of the Department's grievance procedures. Without holding a hearing, the trial court
dismissed all of Lamotte's claims as frivolous. We affirm.
Lamotte presents ten issues for our review. The issues are not "concisely" stated as
required by the procedural rules. See Tex. R. App. P. 38.1(e). Instead, Lamotte's brief
presents the issues in a repetitious and confusing manner. Also, his brief does not contain
"clear and concise" supporting arguments as required by Rule 38.1(h) of the Texas Rules of
Appellate Procedure. See Webb v. State, 533 S.W.2d 780, 786 (Tex. Crim. App. 1976)
(noting that a pro se appellant is required to comply with all relevant rules of appellate
procedure because "right of self-representation is not a license to capriciously upset the
appellate timetable or to thwart the orderly and fair administration of justice").
However, in spite of the brief's deficiencies, Lamotte's stated issues present a
recurring question, namely whether the trial court erred in dismissing his suit as "frivolous"
without a hearing or trial. In the interest of justice, we will review this question. Lamotte's
other issues are overruled.
Because Lamotte filed a declaration of his inability to pay the costs involved with his
suit, the applicable statute is Chapter 14 of the Texas Civil Practice and Remedies Code. That
chapter is entitled "Inmate Litigation." Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014
(Vernon 2002). Chapter 14 not only establishes various procedural requirements for inmate
litigation but also empowers the trial court to dismiss the litigation in certain instances. Tex.
Civ. Prac. & Rem. Code Ann. §§ 14.003-.005 (Vernon 2002). The purpose of the chapter's
procedural requirements is to deter "'constant, often duplicative, inmate litigation.'" Lilly
v. Northrep, 100 S.W.3d 335, 337 (Tex. App.- San Antonio 2002, pet. denied) (quoting
Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.- Houston [14th Dist.] 2001, no pet.)).
As a further deterrent, Chapter 14 also affords the trial court broad discretion to dismiss an
inmate's claim if the court finds that the claim is frivolous or malicious. Moore v. Zeller, 153
S.W.3d 262, 263 (Tex. App.- Beaumont 2004, pet. denied); see Tex. Civ. Prac. & Rem.
Code Ann. § 14.003(a)(2), (b) (Vernon 2002). (2) On appeal, we review a Chapter 14
dismissal under the abuse of discretion standard. Moore, 153 S.W.3d at 263.
Here, Lamotte complains that the trial court did not hold an evidentiary hearing or trial
before dismissing his case as frivolous. However, the statute provides that the trial court
"may hold a hearing" in determining whether to dismiss a claim but does not require the
court to do so. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (Vernon 2002). In addition,
Lamotte's brief contains no explanation of what evidence he would have offered to
demonstrate the merits of his suit. Under these circumstances, we previously found that a
trial court does not abuse its discretion by dismissing a frivolous case without a hearing when
the inmate does not demonstrate that there is evidence he would have presented had a hearing
been held. Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.- Beaumont 2001, no pet.); see
Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 939 (Tex. App.- Fort Worth 1997, pet.
denied).
Lamotte presents no reason why we should abandon our holding in Hall. Thus, we
find that the trial court here did not abuse its discretion in dismissing Lamotte's case as
frivolous. We overrule all of Lamotte's issues and affirm the trial court's judgment.
AFFIRMED.
____________________________
HOLLIS HORTON
Justice
Submitted on July 19, 2006
Opinion Delivered August 10, 2006
Before McKeithen, C.J., Kreger and Horton, JJ.
1. The record does not show that any citation was issued or that any of the defendants
filed an answer. In addition to McClendon, other named defendants named are Warren
Worthy, Chuck Biscoe, Linda Martin, Melodye Nelson, James Jones, Kevin Cook, Mark W.
Cole, Neel G. Burnaby, Jr., and John Moriarty.
2. Section 14.003 also allows the trial court to dismiss claims if the inmate's allegation
of poverty is false or if the inmate knowingly files false affidavits or declarations. Tex. Civ.
Prac. & Rem. Code Ann. § 14.003(a).
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305 P.2d 1063 (1957)
Sammy ABEYTA and Robert Gonzales, Plaintiffs in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 18117.
Supreme Court of Colorado. En Banc.
January 14, 1957.
Rehearing Denied February 4, 1957.
James A. Cain, Lakewood, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.
KNAUSS, Justice.
Plaintiffs in error (herein referred to as defendants) were charged in a three count information filed in the district court of Rio Grande County, Colorado, with (1) assault with intent to commit rape; (2) forcible rape, and (3) statutory rape. Defendants entered pleas of not guilty and on the trial the third count of the information was dismissed.
At the close of the People's case defendants moved for a directed verdict of not guilty on counts one and two, basing the motion on the claim that the People had "failed to prove by any competent evidence" the allegations of these counts or either of them and that the People had failed "to prove by any competent evidence that the crimes charged in the information * * * occurred in the County of Rio Grande and State of Colorado." The motion was overruled and defendants relied upon an alibi as their defense. The jury returned its verdict finding the defendants guilty of forcible rape as charged in the second count. A motion for new trial was overruled and defendants were sentenced. They bring the case here on writ of error.
For reversal it is urged (1) that the People failed to prove the venue as laid in the information, to-wit in Rio Grande County, Colorado, and (2) that the trial court erred in refusing to give defendants' tendered Instruction No. 1.
The information charged that the offenses therein set forth were committed in Rio Grande County, Colorado.
*1064 We need not detail the facts connected with the events which culminated in the conviction of the defendants. The prosecutrix immediately after she reached her home following the commission of the alleged rape, contacted the peace officers in her community and on the next day she went with Barney Black, the town marshal of Del Norte, Colorado, to the place where she said the rape had been committed. At this place were found certain articles of wearing apparel belonging to the parties involved; three empty beer cans and certain tire tread marks of a truck. Barney Black took some pictures of the scene. The prosecutrix testified that she was forcibly placed in a truck by defendants in Del Norte, Colorado and driven to the spot where she said she was raped by each of the defendants.
On direct examination Barney Black detailed his investigation of the scene of the alleged crime and he was asked: "Q. What county and state was this place you went to? A. The scene we went to was in Rio Grande County, Colorado." In the cross-examination of this witness appears the following:
"Q. Are you sure that this scene you photographed is in Rio Grand County? A. No, sir, I could not be sure, it's very close to the line.
"Q. Then I take it your statement on direct examination that this was in Rio Grande County was merely an assumption based on some friends residence, or something of the sort? A. To the best of my knowledge, it's in Rio Grande County.
"Q. But you are not certain? A. No, sir, not without(unfinished) I could not be sure of it."
This testimony of Barney Black was not contradicted. Defendant offered no evidence regarding venue, neither did they tender an instruction on the subject.
Where there is some competent evidence favoring the prosecution, a directed verdict of not guilty should be denied. People v. Urso, 129 Colo. 292, 269 P.2d 709. Here we have the testimony of Barney Black regarding venue, and it was the duty of the jury to evaluate all of his evidence. This, the jury did, and rendered its solemn verdict finding defendants guilty of forcible rape. By its verdict the jury determined that the alibi evidence was not true and that defendants were the perpetrators of the crime charged in the second count of the informationa completed act, not an assault with intent to commit rape. This finding necessarily included a finding that the crime was committed in Rio Grande County, Colorado. There was evidence in the record to justify such a finding.
Where there is no conflicting evidence, it has been held that evidence as to the venue, though slight, may be sufficient. Baker v. State, 55 Ga.App. 159, 189 S.E. 364; Towler v. State, 24 Ga.App. 167, 100 S.E. 42.
In Huddleston v. Commonwealth, 171 Ky. 261, 188 S.W. 366, it was held that testimony of a witness as to his best judgment may be sufficient proof of venue where it is not contradicted by other testimony nor affected by circumstances or other matters. There must, of course, be some proof of venue; however, slight evidence may be sufficient, and it is only where there is neither direct nor circumstantial evidence of venue that a judgment will be reversed because of failure of the proof establishing it.
In the instant case the testimony of Barney Black was uncontradicted that the scene described by him and the prosecutrix was in Rio Grande County, Colorado. Where the evidence concerning venue, as in the instant case, even though slight, is not contradicted, the jury may find that the alleged crime was committed in the county where the trial took place, and is sufficient proof of venue to justify the trial court's denial of a motion for a directed verdict of not guilty on that ground. Such action leaves to the jury the determination of all issues raised by the information and the defendants' pleas of not guilty.
*1065 In Tate v. People, 125 Colo. 527, 247 P.2d 665, 669, we held that it was error for the trial court to refuse the following instruction tendered by defendant: "`The jury is instructed that the courts of Adams county have jurisdiction in criminal cases only of crimes which are committed in Adams county. Therefore, unless you find from the evidence beyond a reasonable doubt that the shooting and killing of Dot T. Hewitt took place in Adams county, your verdict must be not guilty.'" We there said: "* * * it was for the jury to be satisfied beyond a reasonable doubt, if only by inference from the circumstances, that the crime, if any, was committed in Adams county, when called to their attention by an instruction. It cannot just be taken for granted. `Venue is a matter that may be inferred from all the evidence in the case.' Brock v. People, 67 Colo. 389, 390, 176 Pac. 744. `* * * "It is sufficient if there is evidence from which venue can be reasonably inferred, or if, from the facts and circumstances in evidence, the only rational conclusion which can be drawn is that the crime was committed in the county alleged, * * *."'" Dustin v. People, 116 Colo. 433, 181 P.2d 457.
In the Tate case, supra, we said: "The error above pointed out [failure to instruct the jury on the matter of venue] was without appreciable prejudice to this defendant, because, if her statement is to be accepted as true, then there was no crime committed so far as she was concerned in the absence of any inflammatory atmosphere, she was not prejudiced because of the location of the trial. Accepting her statement at face value, that she did not shoot deceased, and that she believed he had at last committed suicide, then, so far as she was concerned, no crime on her part had been committed; therefore, venue was of no serious consequence. In other words, if it was suicide, then the question of venue is out of place."
So here, if the statements of defendants that they were in Pueblo County, Colorado at the time of the alleged rape, were true, then so far as they were concerned no crime on their part had been committed. "Therefore, venue was of no serious consequence." In other words, if they were in Pueblo at the time fixed by the prosecutrix when she was ravished, "the question of venue is out of place."
Instruction No. 1 tendered by defendant reads: "You are further instructed that the charge of assault with intent to commit rape includes the lesser charge of assault, as defined in these instructions." It is here contended that the refusal of the trial court to give the above quoted instruction constitutes reversible error. We think not.
There is no error in the refusal of the trial court to instruct the jury on manslaughter when, under the facts in the case, the crime involved was murder. Williams v. People, 114 Colo. 207, 158 P.2d 447, 159 A.L.R. 509. In Molton v. People, 118 Colo. 147, 193 P.2d 271, (a rape case) error was assigned in "Accepting verdicts which disclosed the jury's failure to find on simple assault." Mr. Justice Burke said: "Assignment 7 is not good because there was not a shred of evidence to support the charge of simple assault and no verdict thereon should have been submitted."
No instruction should be given by the court either on its own motion, or at the request of counsel, which tenders an issue that is not presented by the pleadings or supported by the evidence, or which deviates therefrom in any material respect. Slocum v. People, 120 Colo. 86, 207 P.2d 970; see, also Carpenter v. People, 31 Colo. 284, 72 P. 1072, 1074 and State v. Mahon, 68 Iowa 304, 20 N.W. 449, 27 N.W. 249. In the Carpenter case this court quoted with approval from the Mahon case, as follows: "`If the evidence in a case should show beyond all question that the crime of murder had been committed, and the only controverted question of fact should be whether the accused was the guilty party, it certainly would not be proper for the court in that case to instruct the *1066 jury as to the offenses lower than murder, which were included in the indictment.'" This same holding was made in Smith v. People, 1 Colo. 121.
In the instant case the prosecutrix was acquainted with the defendants prior to the date on which she said she was raped. She identified them and stated definitely that they and each of them forcibly raped her. The other evidence adduced by the People amply demonstrated that she had a torn hymenal ring; was scratched and had black and blue marks on her face, body and legs and a review of the record corroborates her evidence that she was subjected to a forcible rape. Under the record as made, the defendants were guilty of forcible rape or nothing at all. They contended they had no contact with the prosecutrix, and were, as above stated, in Pueblo, Colorado. The only evidence before the jury was that a rape had been committed, and we perceive no error in the refusal of the trial court to give defendants' tendered Instruction No. 1.
These are the only assignments here urged. We conclude that no prejudicial error appears in the record before us and the judgment of the trial court is affirmed.
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97 F.3d 480
65 USLW 2319, 30 UCC Rep.Serv.2d 1163
BANCO GENERAL RUNINAHUI, S.A., Plaintiff-Counter-Defendant-Appellant,v.CITIBANK INTERNATIONAL, a division of Citibank, N.A., NewYork, Defendant-Third-PartyPlaintiff-Counter-Defendant-Appellant,R.M. Wade & Co., d.b.a. Wade Mfg. Co., Third-PartyDefendant-Counter-Claimant-Appellee.
No. 95-4444.
United States Court of Appeals,Eleventh Circuit.
Oct. 10, 1996.
Kenneth Strick, Jay S. Blumenkopf, Boca Raton, FL, Douglas G. Combs, Portland, OR, Domenic L. Massari, III, Tampa, FL, for Appellant Banco General Runinahui, S.A.
Robert J. Borrello, Miami, FL, Paul G. Dodds, Portland, OR, for R.M. Wade & Co.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT and BLACK, Circuit Judges, and REAVLEY*, Senior Circuit Judge.
BLACK, Circuit Judge:
1
Appellants Citibank International (Citibank) and Banco General Runinahui, S.A. (Banco) appeal the district court's entry of summary judgment in favor of R.M. Wade & Co. (Wade), arguing the court improperly concluded Citibank had wrongfully dishonored nonconforming documents Wade presented under the second of two letters of credit issued by Banco in favor of Wade and subsequently confirmed by Citibank. We affirm the district court's judgment as to all claims except those of Appellants contending the court erred in finding Citibank barred from dishonoring the documents Wade presented under the second letter of credit.1
I. BACKGROUND
Commercial Letter of Credit
2
The commercial letter of credit is a payment device often used in international trade which permits a buyer in a transaction to substitute its financial integrity with that of a stable credit source, usually a bank. Alaska Textile Co., Inc. v. Chase Manhattan Bank, N.A., 982 F.2d 813, 815 (2d Cir.1992). As described by the Second Circuit:
3
In its classic form, the letter of credit is only one of three distinct relationships between three different parties: (1) the underlying contract for the purchase and sale of goods between the buyer ("account party") and the seller ("beneficiary"), with payment to be made through a letter of credit to be issued by the buyer's bank in favor of the seller; (2) the application agreement between the [issuing] bank and the buyer, describing the terms the issuer must incorporate into the credit and establishing how the bank is to be reimbursed when it pays the seller under the letter of credit; and (3) the actual letter of credit which is the bank's irrevocable promise to pay the seller-beneficiary when the latter presents certain documents (e.g., documents of title, transport and insurance documents, and commercial invoices) that conform with the terms of the credit.
4
Id.
5
In some letters of credit, another bank, known as the confirming bank, assumes the same obligations as the issuing bank. See Fla.Stat. § 675.107(2) (1995) (a bank that confirms a credit becomes "directly obligated on the credit to the extent of its confirmation as though it were its issuer....").
6
The key to the commercial vitality of the letter of credit is its independence: it is wholly separate and distinct from the underlying contract. When the beneficiary submits documents to the issuing/confirming bank, the bank's only duty is to examine the documents and determine whether they are in accordance with the terms and conditions of the credit. Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1579 (11th Cir.1994). If the bank finds the documents to be conforming, it is then obligated to honor a draft on the credit, independent of the performance of the underlying contract for which the credit was issued. Marino Indus. Corp. v. Chase Manhattan Bank, N.A., 686 F.2d 112, 115 (2d Cir.1982) ("It is the complete separation between the underlying commercial transaction and the letter of credit that gives the letter its utility in financing transactions."); Pro-Fab, Inc. v. Vipa, Inc., 772 F.2d 847, 852-53 (11th Cir.1985) ("The bank is obligated to look only to the requirements of the letter of credit, not to any other activity between the parties.")
7
The Uniform Customs and Practices for Documentary Credits (UCP), first issued in 1930 by the International Chamber of Commerce and revised approximately every ten years since, is a compilation of internationally accepted commercial practices which may be incorporated into the private law of a contract between parties. Alaska Textile, 982 F.2d at 816. Although it is not the law, the UCP applies to most letters of credit because issuers typically incorporate it into their credits. Id.
Facts
8
Wade engages in the business of manufacturing and marketing irrigation products. In September 1991, Ribadalgo Agro Consultores CIA Ltd. [Ribadalgo], Wade's Ecuadorian distributor, entered into a contract with Wade for the purchase of a Wade irrigation system. The parties agreed that a commercial letter of credit governed by the UCP, Int'l Chamber of Commerce Pub. No. 400 (1983 Revision) (UCP 400) would be used to finance Ribadalgo's purchase of the irrigation system from Wade.
First Letter of Credit
9
On November 14, 1991, Ribadalgo obtained an irrevocable letter of credit from Banco, a banking institution with its principal place of business in Quito, Ecuador. The letter of credit was in the amount of $446,000, and named Wade as the beneficiary. The material terms of the letter of credit were that Wade was to ship certain of the irrigation equipment by December 31, 1991; Wade was to present the request for payment, including all the requisite documents "no later than 15 days after shipment, but within the validity of the credit"; and the letter of credit was valid through January 28, 1992, the expiry date. Citibank, which does business in Miami, Florida, confirmed the letter of credit upon Wade's request after Banco deposited $446,000 cash as collateral.
10
Wade shipped the goods on December 31, 1991, and subsequently presented the requisite documents to Citibank for payment on January 14, 1992. The documents contained numerous discrepancies, but Citibank honored Wade's request for payment on January 22, 1992, without noting any deficiencies.
Second Letter of Credit
11
In April 1992, Banco issued another irrevocable letter of credit to Ribadalgo in the amount of $400,000, again naming Wade as the beneficiary. The terms of this letter of credit were that Wade was to ship certain of the irrigation equipment by June 30, 1992; Wade was to present the request for payment, including all the requisite documents "no later than 15 days after shipment, but within the validity of the credit"; the expiry date of the credit was August 4, 1992; and partial shipments were acceptable. After Banco deposited $400,000 cash as collateral, Citibank confirmed the letter of credit. Thereafter, the letter of credit was amended to extend the shipment date to July 30, 1992, and the expiry date to August 21, 1992, and change the port of discharge. All remaining terms were unchanged.
12
Wade timely shipped a portion of the goods on July 7, 1992. On July 21, 1992, one day before the document presentment deadline, Wade presented the requisite documents to Citibank, requesting payment under the terms of the credit for the shipped merchandise.2 Two days later, on July 23, 1992, Citibank informed Wade that the documents submitted contained numerous discrepancies and that it therefore would not honor Wade's request for payment.3 In response, Wade forwarded amended documents to Citibank on July 24, 1992, and July 27, 1992. Although Citibank conceded the documents as amended contained no discrepancies, it nevertheless rejected them as untimely because they were not received within 15 days of shipment as required under the terms of the credit.
II. ISSUES PRESENTED
13
There are three issues raised by the parties in this appeal which merit our consideration:4 (1) whether Wade is entitled to payment under the second letter of credit because it submitted conforming documents before the expiry date of the credit; (2) whether the district court erred in finding Citibank waived its right to require that Wade submit conforming documents under the second letter of credit; and (3) whether the district court erred in finding Citibank estopped from dishonoring Wade's nonconforming presentment under the second letter of credit.
III. STANDARD OF REVIEW
14
We review district court rulings on summary judgment de novo, applying the same legal standards that bound the district court in rendering its decision. Canadyne-Georgia Corp. v. Continental Ins. Co., 999 F.2d 1547, 1554 (11th Cir.1993).
IV. DISCUSSION
A. Document Presentment
15
Appellants contend Citibank rightfully dishonored Wade's demand for payment under the second letter of credit because Wade did not submit conforming documents as required under the terms of the credit. The letter of credit provided that documents had to be presented "no later than 15 days after shipment, but within the validity of the credit." It is this provision which is the source of dispute.
16
This Court has recognized and applied the "strict compliance" standard to requests for payment under commercial letters of credit:
17
Under Florida law, letters of credit are subject to a rule of "strict compliance." Documents presented for payment must precisely meet the requirements set forth in the credit.... If the documents do not on their face meet the requirements of the credit, the fact that a defect is a mere "technicality" does not matter.
18
Kerr-McGee Chem. Corp. v. FDIC, 872 F.2d 971, 973 (11th Cir.1989) (citations omitted).
19
Wade does not challenge the applicability of this standard,5 but disputes when the submitted documents had to be in strict compliance with the terms of the credit. Wade argues the documents did not have to be conforming before the presentment deadline, but only before the expiry date of the credit.6 Specifically, Wade interprets the phrase "no later than 15 days after shipment, but within the validity of the credit" to mean it was required to initially submit documents "no later than [July 22, 1992]," but that between the presentment deadline and the expiry date of the credit there was a "cure period" during which it could remedy any deficiencies contained in the initial presentment. Since Wade initially submitted its documents within the 15-day presentment period and thereafter cured the discrepancies before the expiry date, it maintains it was entitled to receive payment.7
20
A rule such as that suggested by Wade would reduce the function of the document presentment deadline to a mere benchmark for the initial submission of documents, no matter how discrepant. It would permit beneficiaries to make only half-hearted presentments, forcing banks to waste time reviewing discrepant documents submitted in anticipation of the opportunity to cure defects before the "real deadline," the expiry date. Enabling a beneficiary to enjoy an unrestricted right to cure deficiencies before the expiration of the credit would render the document presentment deadline virtually meaningless and effectively subvert the strict compliance standard.
21
Moreover, "the terms and conditions of a letter of credit must be strictly adhered to...." Corporacion de Mercadeo Agricola v. Mellon Bank Int'l, 608 F.2d 43, 47 (2d Cir.1979), and the terms of the letter of credit in this case made no provision for a "cure period" entitling Wade to limitless attempts at remedying deficiencies until the expiry date. Accordingly, under the terms of the credit in this case, we conclude that conforming documents had to be submitted by the presentment deadline in order to satisfy the strict compliance standard followed in this Circuit. Any right to cure would have arisen only if the documents had been submitted promptly enough to permit bank examination, notification of discrepancies, and a second submission all before the presentment deadline. Since Wade failed to submit conforming documents by the presentment deadline, Citibank was justified in dishonoring Wade's demand for payment.
B. Waiver
22
The district court found that although Citibank had a right to demand conforming documents in strict compliance with the terms of the second letter of credit, it waived its right in this case by its previous one-time acceptance of discrepant documents submitted by Wade under the first letter of credit.8 We disagree.
23
The text of the UCP does not support the application of common law equitable doctrines such as waiver in letter of credit cases.9 Although we have observed that "equitable doctrines such as waiver and estoppel apply to these types of [letter of credit] transactions" under the Uniform Commercial Code (UCC), Pro-Fab, 772 F.2d at 851,10 courts have been reluctant to accept claims of waiver in such cases. See Courtaulds N. Am., Inc. v. North Carolina Nat'l Bank, 528 F.2d 802, 807 (4th Cir.1975) ("Obviously, the previous acceptances of truant invoices cannot be construed as a waiver in the present incident.");11 Texpor Traders, Inc. v. Trust Co. Bank, 720 F.Supp. 1100, 1115 (S.D.N.Y.1989) (holding that merely because the account party "in one instance chose to waive discrepancies in the letter of credit, does not require that it do so again, nor does it authorize the issuing bank to similarly waive such discrepancies");12 Alpargatas, S.A. v. Century Business Credit Corp., 183 A.D.2d 491, 493, 583 N.Y.S.2d 441, 442 ("The fact that defendant [applicant] may have waived strict compliance in the past does not justify an inference of a waiver of any discrepancies that might arise at some future point under another such letter...."), appeal dismissed, 80 N.Y.2d 925, 589 N.Y.S.2d 312, 602 N.E.2d 1128 (1992), appeal denied, 82 N.Y.2d 655, 602 N.Y.S.2d 804, 622 N.E.2d 305 (1993). Against this background, there is no need for us to determine whether common law equitable doctrines such as waiver are applicable under letters of credit governed by the UCP,13 because even were we to so find, the facts of this case simply would not support a waiver claim.14
24
We conclude that a significant showing would have to be made before parties to a letter of credit governed by the UCP would be found to have waived its express terms, see Alaska Textile, 982 F.2d at 820, and such a showing has not been made here. It would severely hamper large institutions, dealing in a myriad of complex international transactions, if a single failure to apply the strict compliance standard under a letter of credit were to result in the loss of the right to demand conforming documents in subsequent transactions with the same beneficiary. Citibank's single instance of accepting discrepant documents under the first letter of credit did not extinguish its right to demand conforming documents from Wade under the second letter of credit.
C. Estoppel
25
Appellants argue the district court also erred in finding Citibank estopped from dishonoring the nonconforming documents submitted by Wade. Article 16 of the UCP 400 provides in relevant part:
26
c. The issuing bank shall have a reasonable time in which to examine the documents and to determine ... whether to take up or to refuse the documents.
27
d. If the issuing bank decides to refuse the documents, it must give notice to that effect without delay by telecommunication or, if that is not possible, by other expeditious means....
28
e. If the issuing bank fails to act in accordance with the [above] provisions ... the issuing bank shall be precluded from claiming that the documents are not in accordance with the terms and conditions of the credit.
29
UCP 400 art. 16(c)-(e) (emphases added).
30
The two inquiries are sequential: an issuing/confirming bank is entitled to a "reasonable time" in which to examine documents; then, if it decides to refuse them, it must give notice to that effect "without delay." Here, Wade made its initial presentment of documents to Citibank one day before the presentment deadline, and Citibank advised Wade the documents were nonconforming by telephone two days later. The district court found that Citibank had not examined Wade's documents within a "reasonable time" and had not notified Wade of the discrepancies "without delay."15
31
"In the letter-of-credit context, 'what is a "reasonable time" is to be determined by examining the behavior of those in the business of examining documents, mostly banks,' " Alaska Textile, 982 F.2d at 823 (quoting U.C.C.Rev. Art. 5, § 5-108 Official Cmt. 2 (1995)), and requires an analysis of the "nature, purpose, and circumstances of each case." Id. In concluding Citibank had not reviewed the documents within a "reasonable time," however, it does not appear the district court examined banking behavior. Instead, the court focused on the limited time available to Wade to cure any discrepancies, reducing the entire inquiry to a question of the document presentment deadline:
32
The relevant facts are that Wade submitted documents to Citibank on July 21, 1992, one day before the document presentment date, and that Citibank notified Wade's freight forwarding agent that the submitted documents were discrepant on July 23, 1992, one day after the expiration of the document presentment date.
33
The "reasonable time" requirement cannot be interpreted, as it was by the district court, to mean "early enough to allow the beneficiary to cure and represent the documents before the presentment deadline." The mere fact that the presentment period expired before the completion of Citibank's review and notification process does not compel any conclusion about whether Citibank spent a reasonable amount of time examining the documents.16 A rule which required, in all circumstances, notice to the beneficiary of discrepancies before the passing of the document presentment date would conflict with Article 16(c) of the UCP 400 by stripping banks of their "reasonable time" to review documents.
34
Courts have interpreted "reasonable time" under the UCP 400 to mean at least three business days, see, e.g., Occidental Fire & Casualty Co. v. Continental Bank, N.A., 918 F.2d 1312, 1318 & n. 3 (7th Cir.1990), and, although merely persuasive in this case, Article 13(b) of the UCP, Int'l Chamber of Commerce Pub. No. 500 (1993 Revision) (UCP 500) affords banks seven banking days to review documents and give notice of any discrepancies. Since Citibank not only reviewed the documents but also notified Wade by telephone of the discrepancies within just two days, we hold the district court erred in finding Citibank estopped from dishonoring Wade's nonconforming presentment.
V. CONCLUSION
35
For the foregoing reasons, we reverse the judgment of the district court in finding Citibank barred from dishonoring Wade's nonconforming presentment under the second letter of credit. In all other respects, we affirm the district court's judgment. We remand the case for further proceedings consistent with this opinion.
36
AFFIRMED in part; REVERSED in part; and REMANDED.
*
Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation
1
There were two presentments under the second letter of credit. The district court granted summary judgment in favor of Wade as to the first presentment but denied it as to the second on the basis that Wade had knowingly misstated the amount due under the second presentment by including the amount Citibank refused to pay on the first. Since Wade has not appealed this holding, we will address only the first presentment under the second letter of credit
2
Meanwhile, on July 17, 1992, the Ecuadorian Criminal Investigations Department issued an order freezing all Ribadalgo's assets and precluding payment on any lines of credit made available to Ribadalgo due to alleged drug trafficking. Four days later, the Ecuadorian Department of Banking entered an order barring Banco from making payment under the letter of credit. In turn, Banco advised Citibank not to honor any request for payment made by Wade thereunder
3
Although Wade disputes some of the discrepancies alleged by Citibank, it concedes the documents were nonconforming
4
Banco also claims error on the part of the district court in refusing to find it excused from making payment on the letter of credit on the following grounds: (1) illegality of performance; (2) the act of state doctrine; and (3) principles of international comity. We affirm the district court's judgment on these bases pursuant to our Eleventh Circuit Rule 36-1
5
Wade does argue, however, that Citibank waived its right to insist upon strict compliance based upon advice allegedly given by Citibank's employee to Wade's freight forwarder. Since Wade raises this issue for the first time on appeal, we decline to consider it. See Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988)
6
See First Nat'l Bank of Council Bluffs v. Rosebud Housing Auth., 291 N.W.2d 41, 46 (Iowa 1980) ("Upon becoming aware the first documentation furnished was improper, Rosebud had a right to remedy the defect before the expiration of the credit"); Bank of Cochin Ltd. v. Manufacturers Hanover Trust Co., 612 F.Supp. 1533, 1542 (S.D.N.Y.1985) ("The UCP also implicitly invites cure of any documentary deficiencies apparent before the letter of credit expiration by issuer notification to the beneficiary."), aff'd, 808 F.2d 209 (2d Cir.1986)
7
No court has considered the question of when submitted documents must be in strict compliance with the terms of the credit in the event such terms provide for a document presentment deadline in advance of the expiry date. The authorities cited by Wade are factually distinguishable from this case. In First Nat'l, there was no stated document presentment deadline; documents simply had to be presented with the demand for payment under the letter of credit. 291 N.W.2d at 43. Similarly, in Bank of Cochin, the district court analyzed the letter of credit in terms of a shipment deadline and credit expiry date, without discussing a separate document presentment deadline. 612 F.Supp. at 1535. In this case, by contrast, the terms of the letter of credit clearly provided for a document presentment deadline in advance of the expiry date
8
No federal court has decided this precise issue under a letter of credit expressly incorporating the UCP. The district court relied solely upon the Louisiana state court decision, Schweibish v. Pontchartrain State Bank, 389 So.2d 731 (La.Ct.App.1980), writ denied, 396 So.2d 885 (La.1981). The Schweibish court cited no cases in support of its holding, hinging its decision only on equitable principles. 389 So.2d at 737-38
9
Indeed, nothing in the UCP obligates or even permits a bank to examine documents presented under a letter of credit in relation to similar documents previously examined under a different letter of credit. Such a practice would undermine the UCP goals of certainty, promptness and finality in the context of an international banking system. See Alaska Textile, 982 F.2d at 815-16
10
See also Dibrell Bros., 38 F.3d at 1581
11
Notably, Official Comment 7 to UCC Revised Article 5 provides in relevant part:
Waiver of discrepancies by an issuer or an applicant in one or more presentations does not waive similar discrepancies in a future presentation. Neither the issuer nor the beneficiary can reasonably rely upon honor over past waivers as a basis for concluding that a future defective presentation will justify honor. The reasoning of Courtaulds ... is accepted and that expressed in Schweibish ... is rejected.
U.C.C.Rev. Art. 5, § 5-108 Official Cmt. 7 (1995).
UCC Revised Article 5 bears directly on the issues raised in this case because, unlike the original version, it incorporates the UCP approach to such concepts as notice of discrepancies and preclusion. See generally U.C.C.Rev. Art. 5, Prefatory Note.
12
The district court attempted to distinguish Texpor Traders on the basis that the account party had waived the previous discrepancies in that case, not the bank. See 720 F.Supp. at 1115. From the perspective of the beneficiary, however, the source of the authority for the initial waiver is irrelevant. In either instance, the beneficiary finds out that although an earlier nonconforming submission of documents was accepted, a subsequent submission was rejected as discrepant
13
Since courts have been hesitant to find waiver under letters of credit incorporating the UCC, they will be as reluctant, if not more so, to find waiver under letters of credit governed by the UCP. See Alaska Textile, 982 F.2d at 820 ("Where, as here, a beneficiary presents documents under letters of credit that expressly incorporate the UCP as a template of rights and responsibilities, courts should be chary about altering the parties' relationship based on equitable doctrines such as waiver.") The UCC, which is supplemented by common law equitable doctrines, see U.C.C. § 1-103 (1967), and the UCP "adopt vastly different approaches" to nonconforming demands. See Alaska Textile, 982 F.2d at 822. For example, whereas common law estoppel is equitable, requiring a beneficiary to satisfy the traditional estoppel elements, the UCP 400 provides for a "strict estoppel" or mechanical "preclusion" penalty against a bank that fails to effect dishonor of discrepant documents in a timely fashion. See UCP 400 art. 16(e); Kerr-McGee, 872 F.2d at 973-74; Alaska Textile, 982 F.2d at 823. We are not convinced that the strict compliance standard under the UCP leaves any room for common law equitable doctrines such as waiver and estoppel
14
We recognize that the Second Circuit has found the equitable doctrines of waiver and estoppel applicable under letters of credit governed by the UCP, see Alaska Textile, 982 F.2d at 820, but we need not reach this issue under the facts of this case
15
Appellants maintain the questions of whether Citibank failed to act "within a reasonable time" and "without delay" were not before the district court on summary judgment, but instead were introduced into the case sua sponte by the court without the benefit of briefing from the parties, affidavits directed to these issues, or other development of the record. On this basis, Appellants contend summary judgment in favor of Wade was inappropriate. Given our holding that the district court erred in finding Citibank estopped from dishonoring the discrepant documents submitted by Wade, it is unnecessary for us to resolve this issue
16
Indeed, the "reasonable time" requirement does not imply that banks must examine a presentation out of order or hurry a decision based upon particular needs or desires of a beneficiary. See U.C.C.Rev. Art. 5, § 5-108 Official Cmt. 2
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NO. 4-04-0836 Filed 2/7/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
THOMAS V. RYBURN, ) No. 98CF1062
Defendant-Appellant. )
) Honorable
) G. Michael Prall,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In July 2004, defendant, Thomas V. Ryburn, filed a
petition under section 2-1401 of the Code of Civil Procedure (735
ILCS 5/2-1401 (West 2002)), seeking to set aside his multiple
October 1999 guilty pleas. In August 2004, the trial court sua
sponte dismissed defendant's petition as frivolous and without
merit. Defendant appealed, arguing, in part, that the trial
court's sua sponte dismissal of his section 2-1401 petition was
error. Specifically, defendant argued that the trial court did
not have the authority to take that action. This court disagreed
and affirmed with one judge dissenting. People v. Ryburn, 362
Ill. App. 3d 870, 841 N.E.2d 1013 (2005) (Ryburn III).
On September 26, 2007, the Supreme Court of Illinois
denied defendant's petition for leave to appeal but directed this
court to vacate our judgment and to reconsider in light of People
v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007). People v.
Ryburn, 225 Ill. 2d 666-67, 873 N.E.2d 932 (2007) (nonprece-
dential supervisory order on denial of petition for leave to
appeal). In accordance with the supreme court's directions, we
vacate our prior judgment and reconsider it in light of Vincent
to determine whether a different result is warranted. After
doing so, we again affirm.
I. BACKGROUND
In October 1998, the State charged defendant with four
counts each of aggravated criminal sexual assault, criminal
sexual assault, and aggravated criminal sexual abuse (720 ILCS
5/12-14(a)(1), 12-13(a)(1), 12-16(d) (West 1998)).
At defendant's October 1999 guilty-plea hearing,
defense counsel informed the trial court that defendant had
agreed to plead guilty to three counts of aggravated criminal
sexual assault (720 ILCS 5/12-14(a)(1) (West 1998)). In ex-
change, the State agreed (1) to dismiss the remaining nine counts
and other unrelated charges against defendant, (2) to recommend
an aggregate sentence totaling no more than 60 years, and (3)
that the court would not impose a fine on defendant.
The State provided the following factual basis for
defendant's guilty pleas. On September 8, 1998, defendant
appeared at the victim's residence and asked to use the tele-
phone. The victim, who was acquainted with defendant, allowed
him to come inside. After looking through a telephone book for a
few minutes, defendant sneaked up behind the victim, held a knife
to her throat, and repeatedly sexually assaulted her.
The trial court accepted the State's factual basis.
The court also fully admonished defendant, outlined the terms of
- 2 -
the plea agreement, and determined that he was knowingly and
voluntarily pleading guilty. The court then accepted defendant's
guilty pleas.
In November 1999, the trial court sentenced defendant
to 20 years in prison on each count of aggravated criminal sexual
assault, with those sentences to be served consecutively (730
ILCS 5/5-8-4(a) (West 1998)). The court also ordered that
defendant pay the statutorily mandated $100 sexual-assault fine
(730 ILCS 5/5-9-1.7(b)(1) (West 1998)). That same day, the
circuit clerk imposed the statutorily mandated $25 fine under the
Violent Crime Victims Assistance Act (725 ILCS 240/10 (West
1998)).
In December 1999, defendant filed a motion to withdraw
his guilty pleas, alleging that he did not enter them knowingly
and voluntarily. Following a February 2000 hearing, the trial
court denied the motion.
Defendant appealed, arguing, inter alia, that (1)
section 5-8-4(a) of the Unified Code of Corrections (730 ILCS
5/5-8-4(a) (West 1998)), requiring the imposition of consecutive
sentences in his case, was unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000);
and (2) the $25 fine imposed under the Violent Crime Victims
Assistance Act was improper because the circuit clerk, not the
trial court, imposed it.
This court affirmed defendant's convictions and 60-year
aggregate sentence, vacated the $25 Violent Crime Victims Assis-
- 3 -
tance Act fine, and remanded for the trial court, not the circuit
clerk, to impose that fine. People v. Ryburn, No. 4-00-0117
(June 22, 2001) (unpublished order under Supreme Court Rule 23)
(Ryburn I). In January 2002, the trial court entered an order
imposing a $25 fine under the Violent Crime Victims Assistance
Act (725 ILCS 240/10 (West 1998)).
In June 2002, defendant pro se filed a petition for
relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1
through 122-8 (West 2002)). The petition raised the following
constitutional claims: (1) defendant received ineffective
assistance of guilty-plea counsel in that counsel (a) failed to
raise a speedy-trial claim, (b) failed to call certain alibi
witnesses, (c) failed to present evidence to corroborate the
purported alibi, (d) failed to obtain police records that alleg-
edly showed that the victim had a motive to fabricate her com-
plaint against defendant, and (e) stipulated that defendant was
fit to plead guilty; and (2) he received ineffective assistance
of appellate counsel because counsel failed to raise on appeal
the aforementioned issues. Later in June 2002, the trial court
dismissed the petition as frivolous and patently without merit
under section 122-2.1(a)(2) of the Post-Conviction Hearing Act
(725 ILCS 5/122-2.1(a)(2) (West 2002)). Defendant filed a notice
of appeal, and the trial court appointed the office of the State
Appellate Defender (OSAD) to serve as his counsel. In March
2003, OSAD moved to withdraw as counsel. (This court later
granted OSAD's motion to withdraw as counsel on appeal of the
- 4 -
trial court's dismissal of defendant's postconviction petition
and affirmed that court's judgment. People v. Ryburn, No. 4-02-
0552 (July 29, 2003) (unpublished order under Supreme Court Rule
23) (Ryburn II).)
Also in March 2003, defendant filed a "Petition for a
New Trial," in which he alleged that he should not have to serve
85% of his 60-year aggregate prison sentence because the sentence
was based on "tainted/perjuried [sic]" testimony in an unrelated
case. Later that month, the trial court dismissed the petition,
upon determining that the court lacked jurisdiction to consider
it.
In April 2003, defendant filed a motion entitled
"Petition to Chief Administrative Judge for Rehearing En Banc
with Substitution of Judge and Conduct Review of Judges." Later
that same month, the trial court dismissed the petition as
frivolous, upon finding, inter alia, that defendant had been
"engaging in a pattern of filing frivolous pleadings without
factual or legal merit[,] all with the apparent end of obtaining
relief from his convictions and sentences in [McLean County case
No. 98-CF-1062]."
In July 2004, defendant filed the section 2-1401
petition at issue (735 ILCS 5/2-1401 (West 2002)), seeking to set
aside his October 1999 guilty pleas on the following grounds:
(1) he received ineffective assistance of guilty-plea counsel in
that counsel (a) "fraudulently concealed [the trial court's]
violation of the guilty plea" agreement when the court imposed
- 5 -
fines and ordered that defendant pay restitution, (b) violated
several rules of professional conduct, (c) did not consult with
him about what issues he wanted to raise in his motion to with-
draw his guilty pleas, (d) filed a Supreme Court Rule 604(d) (188
Ill. 2d R. 604(d)) certificate that was "suspect," (e) "fraudu-
lently concealed" defendant's medical records, mental-health
history, and certain exculpatory evidence, (f) failed to argue
that his consecutive sentences were improper, and (g) failed to
argue defendant's "legal innocents [sic]" in his motion to
withdraw his guilty pleas; (2) the trial court violated several
supreme court rules by failing to provide him with a free tran-
script of proceedings; and (3) his consecutive sentences violated
Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348.
In August 2004, the trial court sua sponte dismissed
defendant's section 2-1401 petition, upon finding that it was
frivolous and without merit. Defendant appealed, and as earlier
stated, this court affirmed. Ryburn III, 362 Ill. App. 3d 870,
841 N.E.2d 1013.
In that opinion, we rejected defendant's argument that
his guilty pleas were void based on the trial court's imposition
of $125 in fines, deeming that argument "ridiculous." Ryburn
III, 362 Ill. App. 3d at 875, 841 N.E.2d at 1017. Citing People
v. Bramlett, 347 Ill. App. 3d 468, 472-73, 806 N.E.2d 1251, 1254-
55 (2004), we also concluded that the trial court possessed the
authority sua sponte to dismiss defendant's section 2-1401
petition if it finds that the petition is frivolous and without
- 6 -
merit.
This court also noted that defendant's claim on appeal
that his guilty pleas were void not only had no merit, but also
that he failed to raise it in the section 2-1401 petition that
was before us on appeal. Ryburn III, 362 Ill. App. 3d at 877,
841 N.E.2d at 1018.
In response to defendant's contention that he was not a
"vexatious or frivolous litigator," this court wrote the follow-
ing:
"In addition, defendant's assertion that
he is not a vexatious litigant who inappro-
priately burdens the court system with
nonmeritorious litigation is belied by (1)
the sheer number of pleadings he has filed
since his October 1999 guilty pleas in this
case and (2) the trial court's explicit find-
ing in its April 2003 order that defendant
had been 'engaging in a pattern of filing
frivolous pleadings without factual or legal
merit[,] all with the apparent end of obtain-
ing relief from his convictions and sentences
in [McLean County case No. 98-CF-1062].'
Defendant continued his practice of filing
frivolous pleadings when he filed his July
2004 section 2-1401 petition now before us.
Indeed, this defendant could be the 'poster
- 7 -
boy' for why trial courts should have the
inherent authority to sua sponte dismiss
section 2-1401 petitions that are frivolous
and without merit. Denying trial courts this
authority would require them to squander
scarce judicial resources. Accordingly, we
conclude that the trial court appropriately
exercised its authority by sua sponte dis-
missing defendant's petition." Ryburn III,
362 Ill. App. 3d at 877, 841 N.E.2d at 1018-
19.
As earlier stated, the Supreme Court of Illinois denied
defendant's petition for leave to appeal in Ryburn III but
directed this court to vacate our judgment and to reconsider in
light of People v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007).
That reconsideration follows.
II. THE SUPREME COURT'S DECISION IN VINCENT
The Third District Appellate Court recently had occa-
sion to analyze the decision of the supreme court in Vincent. In
People v. Malloy, 374 Ill. App. 3d 820, 821-22, 872 N.E.2d 140,
141-42 (2007), the Third District wrote the following:
"In the recent case of People v. Vin-
cent, our supreme court stated that a trial
court's dismissal of a petition for relief
from judgment on its own motion may properly
be characterized as either a grant of judg-
- 8 -
ment on the pleadings in favor of the State
or a dismissal of the petition with prejudice
for failure to state a cause of action.
People v. Vincent, 226 Ill. 2d 1, 11-12[, 871
N.E.2d 17, 25-29] (2007). Such a dismissal
is subject to de novo review on appeal.
Vincent, 226 Ill. 2d at [14, 871 N.E.2d at
26]. Thus, we will apply a de novo standard
of review to the dismissal in the present
case. See Vincent, 226 Ill. 2d at [15-19,
871 N.E.2d at 25-29].
Turning to the merits of defendant's
argument, defendant first asserts that the
trial court may not dismiss a petition for
relief from judgment, on its own motion,
without first providing defendant with notice
and an opportunity to be heard. Our supreme
court addressed that exact issue in Vincent
and ruled to the contrary. Vincent, 226 Ill.
2d at 13-14[, 871 N.E.2d at 25-27]. The
trial court's authority to take such action
comes from the Illinois pleading requirements
and from well-settled principles of civil
practice and procedure. Vincent, 226 Ill. 2d
at 13-14[, 871 N.E.2d at 26]. *** Our su-
preme court has noted that the jurisdiction
- 9 -
of the lower courts to restrain the mainte-
nance of vexatious or harassing litigation is
well established. People ex rel. Lake County
Bar Ass'n v. Circuit Court[ of Lake County],
31 Ill. 2d 170, 173-174, 201 N.E.2d 109, 111
(1964). In reaffirming the trial court's
authority to dismiss suit under civil prac-
tice principles, our supreme court in Vincent
pointed out that adequate safeguards exist to
protect a litigant from an erroneous dis-
missal. Vincent, 226 Ill. 2d at 13[, 871
N.E.2d at 25]. A litigant may file a motion
for rehearing or an appeal or both. Vincent,
226 Ill. 2d at 13[, 871 N.E.2d at 25-26].
Based upon the supreme court's ruling in
Vincent, the law is now settled in Illinois
that the trial court may dismiss a petition
for relief from judgment on its own motion
without first providing the defendant with
notice and an opportunity to be heard. Vin-
cent, 226 Ill. 2d at 13-14[, 871 N.E.2d at
25-27]."
We agree with the Third District's analysis and further
adhere to the views we expressed in Ryburn III, except, of
course, to the extent that those views conflict with Vincent.
Specifically, we acknowledge, as our dissenting colleague points
- 10 -
out, that the supreme court disagreed with our statement that
trial courts possess the authority to summarily dismiss section
2-1401 petitions that are frivolous and without merit, noting
that "summary dismissals" are not recognized under the Code of
Civil Procedure. Vincent, 226 Ill. 2d at 11, 871 N.E.2d at 24.
This acknowledgment, however, does not change our
ultimate conclusion. Consistent with the standard set forth by
the supreme court for reviewing a trial court's sua sponte
dismissal of a section 2-1401 petition, we conclude that the
judgment of the trial court is correct because the allegations of
defendant's petition wholly fail to state a cause of action. As
a court of review, we review judgments, not the reasons therefor.
See People v. DeBerry, 372 Ill. App. 3d 1056, 1058, 868 N.E.2d
382, 383 (2007) (where this court held that "we will affirm the
trial court on any basis supported by the record even if the
trial court did not mention its reasons or reasoned
incorrectly"). Accordingly, even though (as the supreme court
held in Vincent) the reasons underlying the trial court's judg-
ment in this case were flawed, we can--and will--affirm if the
record otherwise shows that judgment to be soundly based. That
rule clearly applies here.
The primary focus of the dissent appears to be its
disagreement with the decision of the supreme court that the
trial court should possess the authority to sua sponte dismiss a
section 2-1401 petition. Nonetheless, Vincent resolves that
issue, and our job on this appeal is to apply supreme court
- 11 -
doctrine as set forth in Vincent.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
MYERSCOUGH, J., concurs.
COOK, J., dissents.
- 12 -
JUSTICE COOK dissenting:
I respectfully dissent and would reverse and remand.
Is there any difference between summary dismissal of a
petition as "frivolous or patently without merit" under the Post-
Conviction Hearing Act and dismissal for failure to state a cause
of action under section 2-615 of the Code of Civil Procedure? In
civil cases, will we now routinely see cases summarily dismissed
as frivolous and without merit? I suggest that section 2-615
dismissals are much more limited than "summary dismissals," and
that the supreme court in Vincent did not simply engage in
semantics, allowing "summary dismissals" just under another name.
In Vincent, the supreme court rejected the argument
that special rules should be applied in ruling on section 2-1401
petitions in criminal cases. "This court has consistently held
that proceedings under section 2-1401 are subject to the usual
rules of civil practice." Vincent, 226 Ill. 2d at 8, 871 N.E.2d
at 23. In particular, the court rejected the argument that a
section 2-1401 petition could be dismissed under the provisions
of the Post-Conviction Hearing Act, which allows summary dis-
missal on the basis that "the petition is frivolous or is pa-
tently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2004).
"'Summary dismissals' are not recognized under the Code of Civil
Procedure in general or section 2-1401 in particular." Vincent,
226 Ill. 2d at 11, 871 N.E.2d at 24. Exceptions should not be
created "based solely on the criminal-defendant status of the
petitioner [citation] or on arbitrary notions of docket control
- 13 -
[citation]." Vincent, 226 Ill. 2d at 14, 871 N.E.2d at 26.
Under civil practice rules, a section 2-1401 petition
may be challenged by a motion to dismiss for its failure to state
a cause of action. Vincent, 226 Ill. 2d at 8, 871 N.E.2d at 23.
Judgment on the pleadings may also be appropriate. See 735 ILCS
5/2-615(e) (West 2004) ("Any party may seasonably move for
judgment on the pleadings"). Judgment on the pleadings is often
entered in favor of a plaintiff if the answer admits or fails to
adequately deny any essential allegation of the plaintiff's cause
of action. 3 R. Michael, Illinois Practice Series §27.2, at 493-
94 (1989) (Civil Procedure Before Trial). "[J]udgment on the
pleadings in favor of a defendant who has never filed an answer
*** is the 'functional equivalent of dismissing the complaint for
failure to state a cause of action.'" Vincent, 226 Ill. 2d at
10, 871 N.E.2d at 24, quoting Mitchell v. Norman James Construc-
tion Co., 291 Ill. App. 3d 927, 932, 684 N.E.2d 872, 877 (1997).
"Case law has long recognized that such a judgment, whether it be
characterized as a judgment on the pleadings or a dismissal, can
be entered by the court notwithstanding the absence of a respon-
sive pleading." Vincent, 226 Ill. 2d at 10, 871 N.E.2d at 24;
cf. Fed. R. Civ. P. 12(c) (28 U.S.C. app. Fed R. Civ. P. 12(c)
(2000)) (after the pleadings are closed--but early enough not to
delay trial--a party may move for judgment on the pleadings).
"A motion for judgment on the pleadings is sometimes
used instead of the proper motion in order to attempt to give the
determination the finality that a judgment implies." 3 R.
- 14 -
Michael, Illinois Practice Series §27.2, at 495 (1989) (Civil
Procedure Before Trial). "The difficulty is that there appear to
be cases where the use of the motion for judgment on the plead-
ings, instead of a motion to strike and dismiss, has resulted in
the loss of the plaintiff's right to seek leave to amend after
the complaint was held to be defective." 3 R. Michael, Illinois
Practice Series §27.2, at 496 (1989) (Civil Procedure Before
Trial).
Vincent held that a section 2-1401 petition may be
dismissed sua sponte, in both civil and criminal cases, and that
adequate procedural safeguards exist to prevent erroneous sua
sponte terminations. A section 2-1401 petitioner whose petition
has been disposed of by the court sua sponte may file a motion
for rehearing and may have the right to amend the petition.
Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 25. The decision of
the trial court must be reviewed de novo in the appellate court.
Vincent, 226 Ill. 2d at 18, 871 N.E.2d at 28.
Motions to dismiss with prejudice under section 2-615
are granted cautiously. In civil cases, a pleading need only
assert a legally recognized cause of action and plead facts that
bring the particular case within that cause of action. A motion
to dismiss is granted on the pleadings, not on the underlying
facts. The question presented by a section 2-615 motion is
whether the allegations of the complaint, when viewed in a light
most favorable to the plaintiff, are sufficient to state a cause
of action upon which relief can be granted. Chandler v. Illinois
- 15 -
Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733
(2003) (facts alleged were sufficient to raise a duty). No
complaint is bad in substance which reasonably informs the
defendant of the nature of the claim that he or she is called
upon to meet. Chandler, 207 Ill. 2d at 348, 798 N.E.2d at 733.
"[A] motion to dismiss should not be granted unless it clearly
appears that no set of facts could ever be proved that would
entitle the plaintiff[s] to recover." Ostendorf v. International
Harvester Co., 89 Ill. 2d 273, 280, 433 N.E.2d 253, 256 (1982).
The trial court here entered a three-page written
order, finding that defendant's claims were totally lacking in
merit. Ryburn III, 362 Ill. App. 3d at 877, 841 N.E.2d at 1018.
The trial court, however, did not determine that the allegations
of the section 2-1401 petition were insufficient, as a matter of
law, to state a claim. Vincent, 226 Ill. 2d at 10, 871 N.E.2d at
24. Instead, the trial court applied the summary dismissal
approach of the Post-Conviction Hearing Act, finding that the
petition was "frivolous and without merit." Ryburn III, 362 Ill.
App. 3d at 874, 841 N.E.2d at 1016; 725 ILCS 5/122-2.1(a)(2)
(West 2004). The majority does not attempt to justify the
dismissal on the basis that the allegations here could never
state a legal basis for the relief requested. The allegations of
ineffective assistance in failing to object to the imposition of
fines, failure to consult with defendant, and failure to argue
that consecutive sentences were improper at least appear to
allege a cause of action, however weak on the merits. Defendant
was unaware that he was entitled to file a motion for rehearing
- 16 -
or a motion to amend his petition.
Whatever we do in this case can be done in any civil
case. It is important that we carefully follow the rules of
civil procedure. We should not allow special rules, developed to
address a problem in the criminal law system, to affect the
handling of civil cases.
- 17 -
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636 F.2d 1204
Teichgraeberv.Commissioner of Internal Revenue
80-4053
UNITED STATES COURT OF APPEALS Second Circuit
10/7/80
AFFIRMED
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1268-11
EX PARTE BRAD REINKE, Appellant
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY
Johnson, J., delivered the opinion for a unanimous Court.
O P I N I O N
In 1990, appellant stabbed his father. The state prosecuted him for attempted murder, a
second-degree felony, which is punishable by a term of imprisonment ranging from two to twenty
years. The state also alleged two prior felony convictions as enhancements, which would permit,
upon conviction and a finding that the enhancements were true, a term of imprisonment of up to 99
years or life. Before trial, appellant was declared incompetent and committed to a mental-health
facility, where he has remained for more than twenty years.
In 2010, appellant filed an application for a writ of habeas corpus on the grounds that he had
been in the mental-health facility for 20 years-the "maximum term provided by law for the offense"
of attempted murder-and was therefore entitled to release. The state opposed granting relief and
asserted that, because of the enhancements alleged in the original indictment, the "maximum term"
is imprisonment for life and appellant is therefore not entitled to release. The trial court denied
relief, and appellant appealed. The Third Court of Appeals reversed the ruling of the trial court.
Although we have previously addressed the interplay between level of offense and enhanced
punishment ranges, we have not spoken directly to that issue in the context of Texas Code of
Criminal Procedure article 46B.0095: Maximum Period of Commitment or Outpatient Treatment
Program Participation Determined by Maximum Term for Offense. We affirm the judgment of the
court of appeals.
The Statute
In 2010, Art. 46B.0095 stated that
(a) A defendant may not, under this chapter, be committed to a mental hospital or other inpatient or
residential facility, ordered to participate in an outpatient treatment program, or subjected to both
inpatient and outpatient treatment for a cumulative period that exceeds the maximum term provided
by law for the offense for which the defendant was to be tried, except that if the defendant is charged
with a misdemeanor and has been ordered only to participate in an outpatient treatment program
under Subchapter D or E, the maximum period of restoration is two years beginning on the date of
the initial order for outpatient treatment program participation was entered.
(b) On expiration of the maximum restoration period under Subsection (a), the defendant may be
confined for an additional period in a mental hospital or other inpatient or residential facility or
ordered to participate for an additional period in an outpatient treatment program, as appropriate,
only pursuant to civil commitment proceedings. (1)
The phrase at issue here is "maximum term provided by law for the offense for which the defendant
was to be tried."
The Arguments of the Parties
Appellant argues that the statute is unambiguous and that our previous decisions in Ford and
Webb (2) apply, thus "the maximum term provided by law for the offense for which the defendant was
to be tried" means the maximum term for a second-degree felony, i.e., twenty years.
The state "contends [that] all the provisions it relies on are unambiguous while it analyzes
in a fashion usually reserved for ambiguity." It also complains that the court of appeals "conflates
the felony level of the statutory offense with the punishment for the particular offense on trial" and
also conflates guilt and punishment, saying that "punishment is tried when the State has to prove
beyond a reasonable doubt that the historic fact of prior convictions is true" and cites to Williams v.
State, 5 S.W.2d 514, 515 (Tex. Crim. App. 1928).
The Decision of the Court of Appeals
Focusing on the literal text of the statute, the court of appeals described its task as
determining "whether the 'maximum term' language refers to the sentence specified for the offense
itself, without additional time incorporated for enhancements, or the total length of punishment that
the defendant might have received, including enhancements." Reinke v. State, 348 S.W.3d 373, 377
(Tex. App.--Austin 2011). Noting that "Texas cases have not addressed the application of article
46B.0095 in the face of an offense enhanced by prior felonies," it rejected the state's argument that
the "maximum term" includes the increase in the permissible range of punishment that results from
enhancements that are found to be true. Id. at 378. "Such an interpretation would be contrary to the
statute's plain language, which correlates calculation of an accused's 'maximum term' of
commitment not to the total potential punishment, but to the indicted offense . . . 'the maximum term
provided by law for the offense for which the defendant was to be tried.'" Id. at 379. The court of
appeals noted the "well-established principle that prior offenses alleged to enhance punishment are
not re-tried" and stated that "[t]he only 'offense for which the defendant was to be tried' in this case
was a second-degree felony that carried a statutory maximum punishment term of twenty years."
Id. at 379.
We hold that the court of appeals correctly determined that the offense "to be tried" is the
second-degree offense of attempted murder, which carries a maximum term of twenty years. In
doing so, it appropriately followed the dictates of our decisions in Ford and Webb. The legislature
clearly knows the difference between enhancing the level of an offense and enhancing the level of
punishment. Compare the language "is a felony of the ___ degree" in § 49.07 (Intoxication Assault:
"Except as provided in Section 49.09, an offense under this section is a felony of the third degree")
and § 49.09(b-4) ("An offense under Section 49.07 is a felony of the second degree if . . ..") with the
language in § 12.42 (passim), "shall be punished for a felony of the _____ degree ."). We hold that,
for the purpose of competence to be tried, unless the legislature explicitly states that an enhancement
increases not only the punishment range but also the level of the charged offense, (3) the level of the
offense alleged in the indictment is not altered by the allegation of prior offenses as enhancements. (4)
We affirm the judgment of the court of appeals.
Delivered: June 20, 2012
Publish
1. In 1990, the Code of Criminal Procedure art. 46.02, § 7, provided that if a defendant was "found
incompetent to stand trial and there is no substantial probability that he will become competent in the foreseeable
future," the trial court was to transfer the defendant to the appropriate court for civil commitment proceedings.
2. Ford v. State, 334 S.W.3d 230 (Tex. Crim. App. 2011) (Tex. Code Crim. Proc. art. 62.102(c) increases
range of punishment but does not change the offense level of the primary offense) and State v. Webb, 12 S.W.3d 808
(Tex. Crim. App. 2000) (same, in the context of Tex. Penal Code §§ 12.35 and 12.42).
3. We note that, for offenses such as felony theft (3d) and felony DWI, the prior offenses that must be
alleged are not "enhancements," but jurisdictional elements of the offense itself.
4. The state's position requires an assumption that all enhancement allegations will always be found true.
But if the fact-finder finds one or more enhancement allegations not true, the "maximum term" might change. E.g.,
if the state alleges a third-degree felony and pleads two enhancements, the "maximum term" could be ten, twenty, or
99 years. This is an undesirable, even absurd, interpretation of the language that the state concedes is not
ambiguous.
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27 So.3d 634 (2008)
ALLEN TRACY
v.
STATE.
No. CR-07-1684.
Court of Criminal Appeals of Alabama.
July 1, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Transferred to Sup. Ct.
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381 F.3d 637
Larry COCHRAN, Petitioner-Appellant,v.Edward BUSS, Superintendent, Respondent-Appellee.
No. 03-3402.
United States Court of Appeals, Seventh Circuit.
Submitted April 28, 2004.1
Decided August 24, 2004.
Appeal from the United States District Court for the Northern District of Indiana, Allen Sharp, J.
Larry Cochran (submitted), Westville, IN, pro se.
Andrew K. Kobe, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.
Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.
PER CURIAM.
1
Larry Cochran, an Indiana state prisoner, filed a pro se petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Mr. Cochran challenged a prison disciplinary sanction that he had received for physically resisting a staff member, which resulted in a one-month loss of telephone privileges and a suspended deprivation of sixty-days' good time credit. Mr. Cochran claimed that the prison disciplinary board had denied him due process of law because it had refused his requests to continue the hearing and to present an additional witness and because it had found him guilty without sufficient evidence. The district court concluded that Mr. Cochran had failed to assert a cognizable claim under § 2254 and dismissed the petition. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand the case with direction to dismiss as moot.
1.
2
Indiana state prisoners have a liberty interest in good time credits, and they are entitled to due process before the State may revoke those credits. See McPherson v. McBride, 188 F.3d 784, 785-86 (7th Cir.1999). The disciplinary sanction, when viewed in its entirety, imposed upon Mr. Cochran affected both the duration of his confinement (at least potentially) and a condition of his confinement. We have explained previously that a prisoner challenging the fact or duration of his confinement must seek habeas corpus relief; a prisoner challenging a condition of his confinement, by contrast, must seek relief under 42 U.S.C. § 1983:
3
State prisoners who want to challenge their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices, must seek habeas corpus, because they contest the fact or duration of custody. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). State prisoners who want to raise a constitutional challenge to any other decision, such as transfer to a new prison, administrative segregation, exclusion from prison programs, or suspension of privileges, must instead employ § 1983 or another statute authorizing damages or injunctions—when the decision may be challenged at all, which under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), will be uncommon.
4
Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir.2000).2 Mr. Cochran's loss of telephone privileges affected the conditions of his custody; the suspended deprivation of good time credits, however, could have lengthened his confinement. Consequently, he filed a habeas corpus petition to contest this potential loss of good time credits.
5
Section 2254 requires that the petitioner be "in custody." 28 U.S.C. § 2254(a); see Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). In Preiser v. Rodriguez, 411 U.S. at 487-89, 93 S.Ct. 1827, the Supreme Court established that actions for the restoration of good time credits fall within the "core" of habeas corpus because they go directly to the constitutionality of the prisoner's confinement itself and seek either immediate release or a shortened length of confinement. See also Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir.2000) (adhering to circuit precedent that § 2254 is the correct vehicle for contesting loss of good time credit in prison disciplinary proceedings). The question before us is whether the fact that Mr. Cochran's loss of good time credits was suspended dictates a different course than the one set forth in Preiser.
6
In analyzing this question, we must focus not on Mr. Cochran's underlying sentence to confinement, but on the sentence of the disciplinary board whose action in imposing a suspended loss of good time credits created the very real possibility that Mr. Cochran would spend more time behind bars than would have occurred in the absence of the disciplinary matter. As far as the record in this case reflects, at the time Mr. Cochran filed his habeas petition, the prison disciplinary board could have revoked the suspended sentence of loss of good time credit and imposed a longer confinement than would have applied absent the disciplinary proceeding. Therefore, we believe that this distinct possibility of the loss of good time credits requires that his claim be cognizable in a habeas action rather than in an action under § 1983.
7
Our decision on this point is grounded firmly in the rationale of the Supreme Court's precedents in this area. It has long been established that "custody" does not require physical confinement. For instance, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Supreme Court held that a person free on parole was "in custody" of the parole board for purposes of habeas corpus. His parole "involve[d] significant restraints on petitioner's liberty." Id. at 242, 83 S.Ct. 373; see also Hensley v. Mun. Court, 411 U.S. 345, 351-52, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (ruling that individuals released on bail or on their own recognizance pending trial or pending appeal are "in custody"); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.1984) (noting that probationers and parolees have been found to meet the "in custody" requirement); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423-24 (3d Cir.1975) (holding that a prisoner serving a suspended sentence, placed on probation and fined met the custody requirement); 17A Charles Alan Wright et al., Federal Practice and Procedure § 4262 (2d ed. 1988 & Supp.2004). We believe that the action of the prison disciplinary board with respect to Mr. Cochran's good time credits is sufficiently analogous to the situations presented in these cases that, by a parity of reasoning, his claim should be evaluated by the same process—habeas corpus. Therefore, we hold that Mr. Cochran presented a cognizable claim under § 2254. See Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (holding that court had jurisdiction to review petitioner's conviction when his sentence had been suspended, and that suspension had not yet expired, because "[n]othing in the record indicate[d] that the suspended sentence ... d[id] not carry with it possible revocation of suspension or other adverse action").
2.
8
Although Mr. Cochran appropriately filed a habeas corpus petition, the suspended sanction was never imposed against Mr. Cochran, and the time for imposing the sanction has now expired. All risk of Mr. Cochran's serving additional time as a result of the disciplinary board's action has now evaporated. See Appellee's Br. at 3. A case becomes moot when "it no longer present[s] a case or controversy under Article III, § 2, of the Constitution." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). A petition for habeas corpus filed while a person is in custody does not become moot at the end of custody if the person suffers sufficient collateral consequences from the sentence. See id. at 7-8, 118 S.Ct. 978 (explaining that, once a convict's sentence ends, "some concrete and continuing injury other than the now-ended incarceration or parole—some `collateral consequence' of the conviction—must exist" to maintain the suit); see also Carafas fas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (holding that prisoner's unconditional release did not render his habeas challenge moot because his criminal conviction precluded him from holding public office, voting in state elections and serving as a juror); A.M. v. Butler, 360 F.3d 787, 790 (7th Cir.2004) (finding that habeas petition was not moot because juvenile delinquency adjudication created sufficient adverse collateral consequences); McClendon v. Trigg, 79 F.3d 557, 558 (7th Cir.1996) (dismissing as moot a § 2254 petition to set aside prison disciplinary action that took away good time credits due to petitioner's subsequent death). The Supreme Court has established a presumption of collateral consequences from a wrongful criminal conviction,3 but the Court has not extended this presumption to prison disciplinary sanctions. See Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir.1998) (citing Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)).
9
Whether it is possible for a prisoner to allege sufficient consequences from a disciplinary action to maintain an Article III case or controversy after custody has ended remains an open question. See Diaz, 143 F.3d at 346-47.4 This case does not require that we decide that question. Mr. Cochran alleges in general terms only that he lost his preferred prison living arrangement, his prison job and his eligibility for rehabilitative programs and that the disciplinary report has damaged his prison record. These alleged deprivations, however, are not sufficient collateral consequences. See Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (stating that not every prison action that adversely affects the prisoner requires due process, such as a transfer to a substantially less agreeable prison and an unfavorable classification for rehabilitative programs); see also Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (stating, in § 1983 context, that prisoners do not have an inherent liberty interest in the prison setting); DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir.2000) (stating, in § 1983 context, that prisoners have no liberty or property interest in their prison job). Furthermore, the record does not suggest any such lingering disability.
Conclusion
10
Accordingly, the judgment of the district court is vacated, and the case is remanded with direction that it be dismissed as moot.
VACATED and REMANDED WITH DIRECTION
Notes:
1
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the recordSee Fed. R.App. P. 34(a)(2).
2
See also Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir.2003) ("For prisoners, the difference between a civil rights action and a collateral attack is easy to describe. Challenges to conditions of confinement (such as pollution in the prison or deliberate indifference to serious medical needs) fall under § 1983. Attacks on the fact or duration of confinement come under § 2254." (citations omitted)); DeWalt v. Carter, 224 F.3d 607, 614-16 (7th Cir.2000) (discussing Supreme Court precedent on when a plaintiff may use § 1983 to bring action related to his conviction or sentence); Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir.1998) ("Section 2254 is the appropriate remedy only when the prisoner attacks the fact or duration of `custody.'").
3
See, e.g., Spencer v. Kemna, 523 U.S. 1, 7-14, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Sibron v. New York, 392 U.S. 40, 55-56, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957).
4
Accord Wilson v. Terhune, 319 F.3d 477, 481 (9th Cir.2003) (holding that collateral consequences are not presumed in prison disciplinary proceedings).
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11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Matthew Ryan Blain, * From the 238th District
Court of Midland County,
Trial Court No. CR38072.
Vs. No. 11-14-00041-CR * March 6, 2014
The State of Texas, * Per Curiam Memorandum Opinion
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that the appeal
should be dismissed for want of jurisdiction. Therefore, in accordance with this
court’s opinion, the appeal is dismissed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GORDON P. GASPER,
Plaintiff-Appellant,
v.
No. 97-1542
WILLIAM J. PERRY, Secretary, United
States Department of Defense,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge;
James C. Cacheris, Senior District Judge.
(CA-96-774-A)
Argued: June 2, 1998
Decided: July 2, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Kathryn Mary Theresa McMahon, COLLIER, SHAN-
NON, RILL & SCOTT, P.L.L.C., Washington, D.C., for Appellant.
Jeri Kaylene Somers, Assistant United States Attorney, Alexandria,
Virginia, for Appellee. ON BRIEF: William Daniel Sullivan, COL-
LIER, SHANNON, RILL & SCOTT, P.L.L.C., Washington, D.C., for
Appellant. Helen F. Fahey, United States Attorney, Alexandria, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gordon Gasper appeals the district court's grant of summary judg-
ment to William J. Perry, Secretary of the United States Department
of Defense (the Secretary), in this employment discrimination case
arising out of the termination of Gasper's employment with the fed-
eral agency known as the Defense Mapping Agency (DMA).1 Gasper
alleges that his employment was terminated because of his disability
in violation of the Rehabilitation Act of 1973 (the Rehabilitation Act),
see 29 U.S.C. §§ 791, 794a. Because Gasper has failed to produce
sufficient evidence from which a reasonable jury could conclude that
his employment was terminated because of his disability, we affirm.
I.
In 1982, at the beginning of his senior year in college, Gasper was
catastrophically injured in a motorcycle accident. As a result of the
accident, Gasper has one blind eye, partial hearing loss, short-term
memory dysfunction, and frontal lobe dysfunction. Gasper's frontal
lobe dysfunction causes him to be impulsive, disinhibited, excessively
loquacious, and to have difficulty reading social cues. As a result of
these injuries, Gasper has significant difficulties relating to other peo-
ple in social situations.
_________________________________________________________________
1 Since the termination of Gasper's employment, the DMA has been
renamed the National Imagery and Mapping Agency. However, because
both parties and the district court refer to the agency as the DMA, we
will do the same.
2
On October 7, 1991, Gasper was hired as a cartographer at DMA's
Brookmont, Maryland facility. At the time he was hired, Gasper pro-
vided DMA with medical documentation for all his disabilities. This
documentation included references to Gasper's deficiencies in short-
term memory, causing misinterpretation and confusion, and problems
in social functioning, including "[i]nappropriate childlike behavior."
(J.A. 149). During his tenure at DMA's Brookmont facility, Gasper
performed his job satisfactorily.
In April 1993, Gasper was transferred to DMA's Reston, Virginia
facility, where he continued in his position as cartographer. Initially,
Gasper's supervisor was Martha Nelson, and according to Gasper, his
performance evaluation during the time he was supervised by Nelson
indicated satisfactory performance.
In February 1994, Marcia Weinland replaced Nelson as Gasper's
immediate supervisor. John Doty was Gasper's second-level supervi-
sor. Gasper stated in his affidavit that at the time Weinland replaced
Nelson as his immediate supervisor, he advised Weinland of his dis-
abilities.
Shortly after Weinland replaced Nelson as Gasper's supervisor,
Gasper began having difficulties at DMA. The first disciplinary action
against Gasper stemmed from a series of incidents that occurred
between February 15 and 22, 1994. Prior to February 15, Gasper vol-
unteered to clean and verify digital tape cartridges (DTCs) as part of
the "DTC Verification Project." On February 14 and 15, Gasper was
instructed on the proper use of the DTC winder cleaner and specifi-
cally instructed not to open the back of the machine. Despite these
instructions, on the afternoon of February 15, Gasper was discovered
tinkering with the inside of the DTC winder cleaner. In response, the
Chief of the Systems Operation Division, Dennis Doherty, immedi-
ately spoke with Gasper and reminded him not to open the machine.
However, on the evening of February 21, Gasper again opened the
DTC winder cleaner, apparently in order to fix something he thought
was wrong. A short time later, after maintenance personnel had cor-
rected the first problem, Gasper was found for the third time opening
the machine. According to Gasper, at least with respect to one of
these incidents, one of the contractors had instructed him to "unjam"
the DTC machine. As a result of these incidents, on February 25,
3
1994, Weinland issued Gasper a letter of reprimand for his failure to
follow a supervisory directive and instructions in the use of govern-
ment property.
The next incident occurred on March 8, 1994, when Susan Akard,
a fellow DMA employee, was attempting to return to her office with
a frozen yogurt cone. Upon seeing Akard, Gasper placed his arm
across a doorway and told Akard she could not go through unless she
gave him a lick of her cone. In response, Akard told Gasper that she
had a cold and that he could not have any of her frozen yogurt. Akard
also told Gasper that he should not be rude. According to Akard,
Gasper responded that he did not care and repeated that she could not
pass unless she gave him a lick of her cone. At that point, a man got
off the elevator behind Gasper and Gasper had to release his arm to
permit the man to pass into the hallway. Akard then followed the man
through the door. However, Gasper continued to follow Akard, grab-
bing onto her arm and again stating that she could not go unless she
gave him a lick of her cone. John Doty, Gasper's second-level super-
visor, then appeared and gently pushed Gasper away from Akard so
that she could go into her office. According to Akard, Gasper was
"loud, scary, and threatening" during this incident, and she was very
shaken as a result of it. (J.A. 124).
Akard stated in her affidavit that the frozen yogurt incident was not
the first time she had been frightened by Gasper. Specifically, on a
previous occasion, Akard had been in the elevator carrying a "duck
head umbrella," when Gasper grabbed the umbrella, pointed the beak
of the duck's head within two inches of Akard's eyes, and said,
"quack, quack, quack." (J.A. 124, 157). Following the frozen yogurt
incident, Akard reported both incidents to Weinland. When asked
about the incidents during his deposition, Gasper stated that, with
respect to the umbrella incident, he was trying to carry on a nice con-
versation with Akard, while his behavior with respect to the frozen
yogurt cone was his polite way of preventing Akard from entering the
hallway using Gasper's security code.
Weinland subsequently met with Gasper to discuss his behavior.
During this conversation, Weinland explained to Gasper that his
behavior toward Akard was inappropriate in that it included touching,
invading another person's personal space, being loud and boisterous,
4
and insisting on having the last word. According to Weinland, Gasper
agreed that his behavior may have had some unintended conse-
quences, but he stated that others were too conscious of their personal
space and that he had difficulty reading others' reactions. In addition,
Gasper indicated that Akard's response was "melodramatic." (J.A.
158). At the conclusion of her conversation with Gasper, Weinland
warned Gasper that she was considering disciplinary action against
him "to impress upon him the importance of changing his behavior
and to impress upon him the seriousness of the incident." Id.
Thereafter, on March 22, 1994, Weinland proposed a five-day sus-
pension as a result of Gasper's inappropriate behavior. The proposed
suspension was approved, and on April 21, 1994, Gasper was notified
that he was suspended for five days, effective April 25, 1994.
Several additional incidents occurred between May and July 1994.
The first, on May 26, 1994, involved Gasper's conduct toward a co-
worker, Debra Hinrichs, during a reception following an awards cere-
mony. While Hinrichs was eating some refreshments with another co-
worker, Gasper, whom Hinrichs had not previously met, approached
her and began telling her how beautiful she was and that he believed
that they must be soul mates because they were reflections of each
other: she was beautiful, he was ugly; she had dark eyes, his were
light; she was right-handed, he was left-handed; she was a woman, he
was a man. In addition, during this conversation, Gasper knelt on the
ground at Hinrichs' feet and begged her not ever to cut her long,
beautiful hair. According to Hinrichs, she was not only embarrassed,
but also, "a little afraid to have been singled out and noticed by
[Gasper]." (J.A. 125). Some time after the incident, Gasper apolo-
gized to Hinrichs, while they were in the cafeteria, explaining that a
motorcycle injury in college damaged his brain and made him unable
to control what he said. However, Hinrichs stated that she "continued
to be scared of [Gasper]." (J.A. 126). When questioned about the inci-
dent during his deposition, Gasper stated that he did not know Hin-
richs at the time of the awards reception, that he thought she looked
good that day, and that he was trying to keep the conversation going
beyond simply "hello" or "goodbye." Gasper denied telling Hinrichs
that they were "soul mates." (J.A. 119).
On June 30, 1994, two DMA employees observed Gasper speaking
with a female aerobics instructor and standing by the driver's side of
5
her car. One of the employees, a DMA security specialist named
Carol Oliver, stated that it appeared that Gasper had been blocking the
instructor from getting into her car. Concerned that Gasper might be
harassing the instructor, Oliver and the other employee observed the
two for several minutes, at which time Oliver yelled to the pair that
the instructor was probably getting tired and needed to go home. Oli-
ver then yelled again, "Gordon, she has to go home." (J.A. 164). At
that point, Gasper backed away. As the instructor drove past Oliver
and her co-worker, they asked the instructor whether Gasper had been
harassing her, to which she responded, "Yes." (J.A. 164-65). Accord-
ing to the employees, the instructor also stated that Gasper had been
blocking her from getting into her vehicle.
The next incident occurred on July 5, 1994. On that day, Donna
Gaskin, a contract employee working at DMA, entered the DMA Res-
ton facility after an exercise run. Gasper, who was walking behind
her, asked her if she was wearing a "racer-type" bra and inquired fur-
ther as to what the advantages were to wearing that type of bra as
compared to a regular bra. When Gaskin, turning away from him and
entering her security number on the key paid, said,"It's comfortable,"
Gasper continued by asking whether it was the "front-clasp type."
(J.A. 170). Gaskin then told Gasper that his questions were "too inti-
mate and not appropriate" and walked into a nearby office so that
Gasper would pass. According to Gaskin, she found Gasper's behav-
ior "rude, intrusive, and somewhat harassing" and reported it to Carol
Oliver. See id.
The final incident between May and July 1994 occurred on July 12,
1994. On that date, Carol Oliver, the security specialist who had wit-
nessed Gasper apparently harassing the aerobics instructor two weeks
before, observed Gasper standing close to an aerobics class in prog-
ress and watching. Oliver reported her observation to a security guard
who escorted Gasper from the area. In response to the allegation that
his conduct was inappropriate, Gasper stated that he was watching the
aerobics class to decide whether he wanted to join the class.
On July 27, 1994, Weinland noted these incidents and her investi-
gation into them. In her notes, Weinland indicated that she had spo-
ken with Gasper concerning the incidents and that Gasper stated that
he did not understand why the women he was accused of harassing
6
did not cut him off if they felt uncomfortable about a particular situa-
tion. Weinland concluded in her notes that Gasper"[did] not grasp
what [was] appropriate behavior or conversation in a given situation"
and was unable to "assess the situation in order to apply judgment."
(J.A. 169).
Based upon these incidents, on August 27, 1994, Weinland pro-
posed that Gasper be suspended for fourteen days for repeated inap-
propriate conduct toward female co-workers. In the proposed
suspension, Weinland stated that in determining the disciplinary mea-
sure to be taken, she had considered Gasper's previous misconduct.
In addition, Weinland stated that if Gasper had"personal problems of
which [she was] unaware," she encouraged him to seek assistance
from the Employee Assistance Program. (J.A. 173).
On September 7, 1994, Gasper was notified by Doty that the pro-
posed suspension had been sustained. Thereafter, Gasper filed a
grievance contesting the suspension. In response to the charges,
Gasper denied that he had engaged in some of the inappropriate
behavior alleged, but also suggested that one of the reasons for his
behavior could be the phenobarbital he was taking nightly for the sup-
pression of any neurologic seizures. In response, the deciding official,
Robert Thibodeaux, denied Gasper's grievance, stating that if the phe-
nobarbital was causing problems, Gasper should obtain a doctor's
opinion, and that Gasper had repeatedly disregarded previous
attempts to correct his disruptive and inappropriate behavior.
The final series of incidents occurred in November and December
1994. In November 1994, Weinland observed Gasper trying to place
his classified computer diskette into her unclassified computer on two
separate occasions. Both times, Weinland instructed Gasper not to use
her unclassified computer for classified work. In addition, at a branch
meeting on November 23, 1994, Gasper was again told not to use his
classified disk in Weinland's computer. Weinland's computer was
also identified as an unclassified computer by a form taped to the
monitor. Nevertheless, on December 16, 1994, a co-worker, Karen
Tabor, observed Gasper walk into Weinland's office with his classi-
fied disk to use Weinland's computer. Tabor reminded Gasper that he
was not to use Weinland's computer and explained to Gasper that he
7
should only put his disk into a computer with a red sticker on it, indi-
cating that it was for classified use.
A few days later, on December 19, Gasper again inserted his classi-
fied disk into Weinland's unclassified computer. During the subse-
quent security investigation, Gasper was unable to use his disk, and
Weinland was unable to use her computer.2 In his deposition, Gasper
admitted putting his disk into Weinland's computer, but asserts that
the other computers were occupied and another DMA employee, who
outranked Gasper by several pay levels, told him that he should use
Weinland's. In addition, in a statement form completed after the inci-
dent, Gasper stated that he put his disk into Weinland's computer
because he had heard, "along the grapevine," that Weinland's com-
puter had been returned to the classified level. (J.A. 183).
On February 14, 1995, Weinland proposed Gasper's termination
for insubordination. In proposing his termination, Weinland referred
specifically to Gasper's repeated failure to use only classified com-
puters for his classified diskettes and his failure to follow specific
directives from Weinland. In addition, Weinland stated that she had
carefully considered Gasper's employment record, including the three
prior disciplinary actions taken against him since February 1994.
With respect to whether she ever attempted to accommodate the
effect of Gasper's disability on his short-term memory and his ability
to behave in socially appropriate ways, Weinland stated during her
deposition that she regularly repeated answers to the same questions
posed by Gasper and she often gave Gasper written instructions, par-
ticularly if he asked a question late in the day that pertained to a task
he would have to work on the next day. Weinland also stated that
Gasper frequently took his own notes. With respect to Gasper's inter-
actions with co-workers, Weinland stated that she attempted to get
other employees to stop joking about Gasper and to learn to respond
to his inappropriate conduct by quickly cutting him off. However,
there were a number of people who feared hurting Gasper's feelings
and had difficulty asserting themselves with Gasper. Finally, Wein-
land stated that Gasper never requested any particular accommodation
_________________________________________________________________
2 The record does not indicate how long this investigation took or how
long Weinland was deprived of the use of her computer.
8
from her and never raised the issue of his disability until after his ter-
mination, with the exception of his statement that his use of the phe-
nobarbital might be affecting his behavior.
On March 28, 1995, Gasper was removed from federal employ-
ment. Gasper's second-level supervisor, John Doty, stated in his affi-
davit that Gasper was terminated for insubordination and a history of
disciplinary problems. With respect to transferring Gasper to another
DMA facility, Doty stated that such an accommodation was not rea-
sonable because "Gasper had repeated behavior problems and his
work performance was questionable." (J.A. 94).
On May 30, 1995, Gasper filed an EEO complaint claiming dis-
crimination on the basis of a handicap. The Department of Defense
Office of Complaint Investigations investigated Gasper's complaint
and found that it was not substantiated.
On June 4, 1996, Gasper filed this action in the United States Dis-
trict Court for the Eastern District of Virginia against the Secretary,
alleging that his termination was in violation of the Rehabilitation Act
of 1973 (the Rehabilitation Act), see 29 U.S.C. §§ 791, 794a. In addi-
tion to his Rehabilitation Act claim, Gasper asserted causes of action
under the Americans with Disabilities Act (ADA), see 42 U.S.C.
§ 12112; Title VII of the Civil Rights Act of 1964, see id. § 2000e-16;
Title I of the Civil Rights Act of 1991, see id. § 1981a(a)(2); 42
U.S.C. § 1985; and 5 U.S.C. §§ 551, 7503, 7513, 2302(b)(1)(D). By
order dated September 6, 1996, the district court dismissed Gasper's
ADA claims.
Following discovery, on January 15, 1997, the Secretary filed a
motion for summary judgment, and on February 5, 1997, Gasper filed
a cross-motion for partial summary judgment on the issues of the Sec-
retary's liability under the Rehabilitation Act and Gasper's right to
reinstatement.
On February 10, 1997, the district court entered a memorandum
opinion and order granting the Secretary's motion for summary judg-
ment and denying Gasper's motion for partial summary judgment.
Although the district court addressed only Gasper's claims under the
9
Rehabilitation Act in its memorandum opinion, it entered judgment in
favor of the Secretary as to each of Gasper's claims.
Gasper noted a timely appeal. Despite the allegations in the com-
plaint asserting violations of numerous federal statutes, on appeal,
Gasper argues only that the district court erred in holding that he had
failed to establish a claim under the Rehabilitation Act.
II.
We review a district court's grant of summary judgment de novo.
See Karpel v. Inova Health Sys. Servs., 134 F.2d 1222, 1226 (4th Cir.
1998). Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judg-
ment as a matter of law. See Fed. R. Civ. P. 56(c); Front Royal &
Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d
275, 284 (4th Cir. 1998).
Section 504 of the Rehabilitation Act provides that"[n]o otherwise
qualified individual with a disability . . . shall, solely by reason of her
or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination . . . under any program
or activity conducted by any Executive agency." 29 U.S.C. § 794(a).
In order to establish a violation of this provision, a plaintiff must
prove: (1) that he has a disability; (2) that he is otherwise qualified
for the employment or benefit in question; and (3) that he was
excluded from the employment or benefit on the basis of the disabil-
ity. See Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1265
(4th Cir. 1995). Although an employee may not be terminated
because of his disability, we have previously recognized that a handi-
capped employee is not protected from discipline or termination as a
result of misconduct, even if that misconduct is related to the disabil-
ity. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 n.3 (4th
Cir. 1997) ("[M]isconduct--even misconduct related to a disability--
is not itself a disability, and an employer is free to fire an employee
on that basis."); Little v. Federal Bureau of Investigation, 1 F.3d 255,
259 (4th Cir. 1993) ("[I]t is clear that an employer subject to the
Rehabilitation Act must be permitted to terminate its employee on
account of egregious misconduct, irrespective of whether the
employee is handicapped.").
10
In this case, it is undisputed that Gasper suffered from a disability
that impaired his short-term memory and his ability to judge the
appropriate limits of social interaction. However, it is also undisputed
that between February and December 1994, Gasper engaged in
numerous instances of misconduct, ranging from a repeated failure to
follow instructions to making inappropriate and offensive advances to
female co-workers or other women at the DMA Reston facility.
Although Gasper asserts that these instances of misconduct were
caused by his disability, there is no evidence that the government ter-
minated Gasper's employment because of his disability, rather than
because of the misconduct, as asserted by the government. Specifi-
cally, Gasper's second-level supervisor, Doty, stated that he based his
decision to terminate Gasper's employment on the fact that Gasper
had failed, after repeated warnings, to follow specific instructions not
to place his classified diskette into Weinland's unclassified computer,
thus jeopardizing security, and the history of disciplinary problems
Gasper had experienced since February 1994. Therefore, Doty justi-
fied the decision to terminate Gasper by relying not only on Gasper's
failure to follow the instructions with respect to classified informa-
tion, but also on Gasper's repeated misconduct in engaging in inap-
propriate behavior when interacting with others at the DMA facility.
There simply is no evidence that Doty made the termination decision
because of Gasper's disability, rather than because of this misconduct.
Indeed, with the exception of raising the possibility that his medica-
tion was affecting his behavior, even Gasper failed to raise his disabil-
ity as a potential cause of the misconduct until after his employment
was terminated.
We note that several courts, including this court, have refused to
recognize a cause of action for employment discrimination on the
basis of the plaintiff's disability, where the plaintiff's employment
was terminated because of misconduct allegedly related to the plain-
tiff's disability. For example, in Little, we held that the plaintiff had
not stated a claim for disability discrimination where the plaintiff was
terminated for being intoxicated on the job, misconduct the plaintiff
argued was caused by his alcoholism, a disability. See Little, 1 F.3d
at 258-59. Although we recognized that alcoholism is a disability for
purposes of the Rehabilitation Act, we also recognized that "the
[Rehabilitation] Act does not protect alcoholics or drug addicts from
the consequences of their misconduct." Id. at 258.
11
Similarly, in Newland v. Dalton, 81 F.3d 904 (9th Cir. 1995), the
Ninth Circuit held that the plaintiff's complaint alleging disability dis-
crimination was properly dismissed, where a civilian employee of the
United States Navy was dismissed after a "drunken rampage," during
which he attempted to fire an assault rifle at individuals in a bar. See
id. at 905-06. The Newland court held that regardless of whether the
plaintiff's misconduct was related to his alcoholism, a recognized dis-
ability under the Rehabilitation Act, "a termination based on miscon-
duct rather than the disability itself was valid." Id. at 906; see also
Williams v. Widnall, 79 F.3d 1003, 1007 (10th Cir. 1996) ("We can-
not adopt an interpretation of the [Rehabilitation Act] which would
require an employer to accept egregious behavior by an alcoholic
employee when that same behavior, exhibited by a nondisabled
employee, would require termination."); Maddox v. University of
Tenn., 62 F.3d 843, 847 (6th Cir. 1995) (rejecting alcoholic plaintiff's
claims under the Rehabilitation Act and stating that in ruling against
the plaintiff, the district court "correctly focused on the distinction
between discharging someone for unacceptable misconduct and dis-
charging someone because of the disability").
While the cases cited above involved more egregious misconduct
than that for which Gasper was terminated in this case, the principle
that an employer may terminate an employee for misconduct, even if
that misconduct is allegedly related to the employee's disability,
applies in these circumstances as well. In each case, the employee
argued that the misconduct in which he had engaged was caused by
his disability and, therefore, the employer discriminated against him
on the basis of his disability when he was terminated for that miscon-
duct. Nevertheless, this argument was squarely rejected. Gasper's
argument in this case is the same as that rejected in those cases. Spe-
cifically, Gasper argues that it was his disability that caused each of
the incidents for which he was disciplined and that because he was
terminated for misconduct caused by his disability, he was terminated
"because of" his disability. Because termination based on misconduct
is not the equivalent of termination based on a person's disability, and
because the undisputed evidence in this case indicates that Gasper
was terminated because of misconduct and not because of his disabil-
ity, the district court did not err in granting summary judgment to the
Secretary as to Gasper's Rehabilitation Act claim.
12
III.
Accordingly, we affirm the district court's grant of summary judg-
ment to the Secretary as to Gasper's claim of unlawful termination in
violation of the Rehabilitation Act.
AFFIRMED
13
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791 A.2d 359 (2002)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Raymond CONAWAY, Appellant.
Superior Court of Pennsylvania.
Submitted October 22, 2001.
Filed January 15, 2002.
*360 Paul W. Muller, Public Defender, Harrisburg, for appellant.
Michael A. Consiglio, Asst. Dist. Atty., Harrisburg, for Commonwealth, appellee.
Before DEL SOLE, President Judge, MUSMANNO and HESTER, JJ.
MUSMANNO, J.
¶ 1 Appellant Raymond Conaway ("Conaway") appeals from the judgment of sentence entered following his conviction of possession with intent to deliver a controlled substance and possession of drug paraphernalia.[1] We affirm.
¶ 2 The pertinent facts and procedural history of this case are as follows. On February 8, 2001, a jury found Conaway guilty of the above-mentioned offenses. The jury also found co-defendant Glennatta Conaway ("Glennatta"), Conaway's sister, guilty of possession with intent to deliver a controlled substance, unlawful possession of drug paraphernalia, and unlawful possession of a small amount of marijuana.[2]
¶ 3 In May 2000, Conaway rented Apartment No. 4 located at 3031 Walnut Street. On the morning of May 18, 2000, members of the U.S. Marshals Fugitive Task Force ("Task Force") attempted to execute an arrest warrant for Conaway at that address, but only found Glennatta on the premises. Glennatta consented to a search of the apartment. Upon searching, the Task Force found a small amount of marijuana, "blunts," and razor blades on the coffee table in plain view. Glennatta claimed responsibility for the marijuana. The Task Force also noticed that Glennatta appeared to be hiding something under her arms. Upon further examination, the Task Force discovered that Glennatta was hiding a dinner plate with numerous bags containing suspected crack cocaine. At that point, the Task Force arrested Glennatta.
¶ 4 After Glennatta gave her consent to search the remainder of the apartment, she provided the Task Force with telephone numbers at which Conaway could be reached.[3] The Susquehanna Township police and members of the Dauphin County Drug Task Force ("Dauphin County Task Force") were then contacted and responded to the scene. During the search of the remainder of the apartment, the Dauphin County Task Force discovered sixty (60) individually packaged pieces of crack cocaine on a dinner plate on top of the kitchen counter. On the same counter, they found an additional twenty (20) pieces of suspected crack cocaine that was packaged identically to the sixty (60) packages. *361 In the kitchen, there was also a sandwich bag containing marijuana seeds, a package of mini-Ziploc bags, and the remains of sandwich bags, from which the corners had been torn off to package the crack cocaine ("corner bags"). The Dauphin County Task Force also discovered two (2) handguns, a .22 caliber pistol, and a 9 millimeter pistol under a futon bed. The serial number of the 9 millimeter pistol was obliterated.
¶ 5 Based upon the cross-reference of the telephone numbers provided by Glennatta, the Task Force was dispatched to a location on Brokas Drive in Swatara Township to locate Conaway's car. There, they located a BMW vehicle thought to belong to Conaway, and found him in the driver's seat in a reclined position. Upon Conaway's exit from the vehicle, he was handcuffed and placed under arrest. A search of the vehicle revealed a large baggie, which contained several small pinkish baggies that appeared to contain crack cocaine. The large baggie was located on the passenger's seat under a shirt. It was later determined that this baggie contained thirteen (13) small baggies of crack cocaine with a value of twenty dollars ($20.00) each.
¶ 6 The Dauphin County Task Force charged Conaway with possession with intent to deliver a controlled substance and possession of drug paraphernalia with regard to the items discovered in the apartment and in his vehicle. Glennatta was charged with possession with intent to deliver a controlled substance, possession of drug paraphernalia, possession of marijuana, and altering/obliterating marks of identification.[4]
¶ 7 At trial, Marchand Pendleton of the Task Force testified that Glennatta stated to him that "my brother got me into some stuff," and that she had repeated this statement to him several times. N.T., 2/5/01-2/8/01, at 248. He further testified that Glennatta told him that she had last seen Conaway the previous evening at the apartment and claimed that the crack cocaine found in the apartment belonged to Conaway. N.T., 2/5/01-2/8/01, at 248-49.
¶ 8 Glennatta testified that she had assumed that the crack cocaine belonged to Conaway. N.T., 2/5/01-2/8/01, at 224, 227. She also testified that when she told the Task Force that Conaway had gotten her in trouble, she was referring to his failure to appear in court, which resulted in the issuance of the warrant and the appearance of the Task Force at her apartment. N.T., 2/5/01-2/8/01, at 224-25.
¶ 9 A jury found Conaway guilty of all counts. On March 29, 2001, the trial court sentenced Conaway to an aggregate prison term of three (3) to ten (10) years and a ten thousand dollar ($10,000) fine. Conaway filed a Motion for modification of the sentence, which the trial court denied on May 1, 2001. Conaway then timely filed a Notice of appeal.[5]
*362 ¶ 10 On appeal, Conaway raises the following issues:
1. Whether Conaway failed to preserve his claims for appeal when he did not file a brief in support of the statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)?
2. Whether the evidence was insufficient for a jury to convict Conaway of possession with intent to distribute a controlled substance rather than simple possession of a controlled substance?
Brief for Appellant at 4.
¶ 11 We will first address the issue of waiver resulting from Conaway's failure to file a brief in support of his Statement. Pa.R.A.P.1925(b) provides that "the [trial] court may enter an order directing the appellant to file of record in the [trial] court and serve on the trial judge a concise statement of the matters complained of on appeal no later than 14 days after entry of such order." Pa.R.A.P.1925(b). Rule 1925(b) further provides that a failure to comply with such order may be considered by this Court as a waiver of all objections to the order, ruling or other matter complained of on appeal. Nowhere in this rule is there a requirement that the appellant must file a supporting brief and that a failure to do so would constitute a waiver of all issues, as the trial court suggests. See Trial Court Memorandum and Order, 8/3/01, at 1-2.
¶ 12 Therefore, although Conaway did not file a supporting brief as ordered by the trial court, we conclude that his challenge to the sufficiency of the evidence is not waived because Conaway fully complied with Rule 1925(b).
¶ 13 Conaway contends that the evidence presented at trial was insufficient for the jury to convict him of possession with intent to deliver a controlled substance rather than simple possession of a controlled substance. Conaway argues that the Commonwealth failed to produce sufficient evidence at trial as to why the quantity of crack cocaine found in the vehicle was more consistent with delivery for sale rather than for personal use.
¶ 14 In reviewing a challenge of the sufficiency of the evidence, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth, as the verdict winner, to determine whether the jury could have found that every element of the offenses was proven beyond a reasonable doubt. Commonwealth v. Simpson, 562 Pa. 255, 264, 754 A.2d 1264, 1269 (2000). The Commonwealth may sustain its burden of proof on circumstantial evidence alone. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super.2000) (en banc) (quoting Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979)). In Aguado, this Court further stated:
The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the jury unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
Id. (citation omitted).
¶ 15 To convict a person of possession of a controlled substance with the intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it. Aguado, 760 A.2d at 1185; 35 P.S. § 780-113(a)(30). The intent to deliver may be inferred from an examination of the facts and circumstances surrounding *363 the case. Aguado, 760 A.2d at 1185. Factors to consider whether the defendant possessed the drugs with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant. Id.
¶ 16 Applying our standard of review to this case, we conclude that the evidence was sufficient to sustain Conaway's conviction for possession of a controlled substance with the intent to deliver. Here, the parties stipulated that the substances found as a result of the apartment and vehicle searches were crack cocaine and marijuana. At trial, the Commonwealth presented evidence that the Task Force found thirteen baggies of crack cocaine next to Conaway in his vehicle. In addition, Conaway rented the apartment in which sixty baggies of crack cocaine were found. Evidence was also presented that Glennatta told the police that those sixty baggies belonged to Conaway. N.T., 2/5/01-2/8/01, at 248-49. This evidence was sufficient for the jury to find that Conaway was in possession of the drugs.
¶ 17 However, Conaway contends that there was no evidence presented to suggest that the quantity of crack cocaine found as a result of the searches was inconsistent with personal use. We disagree.
¶ 18 The Commonwealth presented two witnesses who testified that the corner bags and baggies of crack cocaine, which were found at the apartment and in the vehicle, were worth approximately $20.00 each. There was also testimony that the usual street purchase of crack cocaine was approximately $20.00 to $40.00. Based on this testimony, the total amount of crack cocaine found represented approximately 36 to 73 individual purchases. Furthermore, the police found no drug paraphernalia in Conaway's vehicle. Thus, we conclude that this evidence was sufficient to establish that Conaway possessed the crack cocaine with the intent to deliver. See Aguado, 760 A.2d at 1185 (citing) Commonwealth v. Torres, 421 Pa.Super. 233, 617 A.2d 812 (1992) (holding that evidence of individually wrapped bags of cocaine and the lack of paraphernalia for personal use of crack cocaine gave rise to an inference of intent to deliver); Commonwealth v. Ramos, 392 Pa.Super. 583, 573 A.2d 1027, 1033-34 (1990) (holding that the defendant's possession of nine individually prepackaged rocks of crack cocaine coupled with defendant's act of placing the drugs beneath a parked car was sufficient evidence of an intent to deliver).
¶ 19 Judgment of sentence affirmed.
NOTES
[1] 35 P.S. §§ 780-113(a)(30) and (32), respectively.
[2] 35 P.S. § 780-113(a)(31).
[3] The Task Force cross-referenced these telephone numbers with Dauphin County Communications to obtain addresses.
[4] 42 Pa.C.S.A. § 6117.
[5] On May 23, 2001, the trial court issued an order directing Conaway to file a concise Statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b) no later than fourteen (14) days after the entry of the Order and to file a brief in support of the issues asserted. Conaway filed a Motion to extend time to file his Statement, which the trial court denied. Upon subsequent conversation with Conaway's newly appointed counsel, the trial court granted Conaway a two (2) week extension to file his Statement. Conaway's counsel timely filed his Statement but did not file a brief in support because he did not have the trial transcripts. Thus, the trial court did not file its Memorandum Opinion pursuant to Pa.R.A.P.1925(b) because it viewed the failure of Conaway's counsel to file a brief in support as a waiver of all issues.
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764 P.2d 1303 (1988)
Charles A. PHELPS, Appellant,
v.
DIRECTOR, NEVADA DEPARTMENT OF PRISONS, George Sumner, Respondent.
No. 18313.
Supreme Court of Nevada.
November 30, 1988.
*1304 Ashleman, Evans and Kelly, Reno, for appellant.
Brian McKay, Atty. Gen., and Brian Hutchins, Deputy Atty. Gen., Carson City, for respondent.
OPINION
PER CURIAM:
On May 8, 1981, pursuant to a jury verdict, appellant was convicted of one count each of sexual assault and attempted sexual assault and two counts of lewdness with a minor under the age of fourteen. In his direct appeal to this court, appellant challenged his conviction on the sole grounds that the district court improperly joined the alleged offenses for trial and that the district court erred in determining that appellant's confession was voluntary. This court subsequently dismissed that appeal concluding that these assignments of error were without merit. See Phelps v. State, Order Dismissing Appeal, Docket No. 13501 (filed December 20, 1983).
On April 16, 1984, appellant petitioned the district court for a writ of habeas corpus. In that petition, appellant argued, among other things, that his trial counsel had rendered ineffective assistance because he failed: (1) to move to suppress evidence; (2) to investigate his case; and (3) to object to perjurious testimony. Appellant also argued that his appellate counsel was ineffective because he failed to raise issues on appeal of judicial bias and improper jury instructions. The district court entered an order summarily denying appellant's petition. This court subsequently dismissed appellant's proper person appeal from that order concluding that appellant could not demonstrate error on appeal. See Phelps v. Director, Order Dismissing Appeal, Docket No. 15794 (filed July 20, 1984).
Appellant then pursued federal remedies. On August 15, 1984, appellant petitioned the federal district court in proper person for a writ of habeas corpus. Appellant reasserted the claims that he had raised in the state courts. The federal district court denied appellant's petition, and appellant appealed to the Ninth Circuit Court of Appeals. That court appointed counsel to represent appellant on appeal, and counsel argued that appellant's trial counsel had rendered ineffective assistance because he presented only a "pro forma" opening statement and presented no closing argument whatsoever to the jury. Because this claim had not been raised in any of the prior proceedings, the appellate court concluded that appellant had not exhausted his statement remedies with respect to this particular claim. Accordingly, the court of appeals remanded the matter to the federal district court so that appellant could either submit the new claim to the state courts or revise his federal petition to include only exhausted claims.
Appellant then filed the instant petition for a writ of habeas corpus in the state district court on April 2, 1987. Appellant's petition raised the sole contention that his trial counsel rendered ineffective assistance by presenting an inadequate opening statement and no closing argument to the jury. The district court summarily dismissed appellant's petition concluding that *1305 appellant had not shown good cause for his failure to raise this argument in his prior state petition. See NRS 34.810(1)(b) and (2). Appellant moved the court below for rehearing, arguing that a summary dismissal was not proper. Appellant also explained his reasons for not raising this facet of the ineffectiveness claim in his prior petition for post-conviction relief. The district court thereafter denied the motion for rehearing, and this appeal followed.
In the instant appeal, appellant argues that the district court erred in summarily rejecting his contentions for failure to raise those contentions in his prior petition. Specifically, appellant asserts that a finding of waiver should rarely, if ever, be found from the face of a post-conviction petition for a writ of habeas corpus. Instead, appellant contends that the state should be required to plead such a waiver in its answer. See Brimage v. State, 94 Nev. 520, 582 P.2d 375 (1978); see also Vargo v. Warden, 94 Nev. 466, 581 P.2d 855 (1978); Stewart v. Warden, 92 Nev. 588, 555 P.2d 218 (1976). In response, the state concedes that it "may be more advisable ... to allow habeas petitioners an opportunity to demonstrate cause and prejudice" rather than to permit a summary denial. We agree.
Summary dismissal of a petition is warranted only if it "plainly appears from the face of the petition" that the petitioner is not entitled to relief; otherwise, the district court "shall order the respondent to file an answer... ." NRS 34.740(2). The district court denied the petition on the sole ground that appellant had waived his most recent claim of ineffective assistance of counsel by failing to present that claim in a prior proceeding. Because such a finding of waiver is not possible from the face of appellant's petition, we conclude that the district court erred in summarily rejecting appellant's claim on that ground.
NRS 34.810(2) states:
A second or successive petition must be dismissed if the judge or justice determines that it fails to allege new or different grounds for relief and that the prior determination was on the merits or, if new and different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
Thus, in order to avoid the dismissal of his petition pursuant to NRS 34.810(2), appellant was required to make certain specific allegations regarding the reasons for his failure to raise the recent claim in a prior petition. The statutory scheme, however, does not contemplate that such allegations will be specified on the face of the petition. For example, NRS 34.735 sets forth a form which must be followed by a petitioner in filing a post-conviction petition for a writ of habeas corpus. The form does not allow a petitioner sufficient space to explain adequately his failure to raise the issue in an earlier petition. Further, if a petitioner alleges the same grounds for relief that he has alleged in a prior petition, the form set forth in NRS 34.735 does not inquire whether the prior petition was decided on its merits. Finally, NRS 34.735 directs a petitioner not to attach additional pages unless attachments are specifically allowed by the form. In our view, the form of the petition does not elicit sufficient facts to allow a district court to properly resolve the question of waiver from the face of the petition.
Under these circumstances, we conclude that the legislature intended that the affirmative defenses of waiver or abuse of the writ must be raised by the state in response to a post-conviction petition under NRS Chapter 34. Once such an allegation is made by the state, the burden then falls upon the petitioner to show: (1) that good cause exists for his failure to raise any grounds in an earlier petition and that he will suffer actual prejudice if the grounds are not considered; or (2) if no new grounds for relief are asserted, that the previous petition was not decided on its merits. See NRS 34.810(2); Brimage v. State, supra; Vargo v. Warden, supra. Should petitioner fail to meet this burden, the district court may then dismiss the petition without further proceedings. By requiring the state to allege waiver as an *1306 affirmative defense, petitioner is afforded an opportunity to meet the burden placed on him by NRS 34.810. Without such a procedure, a petitioner may never be allowed an opportunity to meet this burden.
Appellant was precluded from proceeding as outlined above by the summary dismissal of his petition. In his motion below for rehearing, however, which the lower court considered and rejected, appellant presented his reasons for previously failing to raise his claim in his prior petition. Specifically, appellant contended in his motion for rehearing that he was organically brain damaged at birth and is borderline mentally retarded. Because of his limited intelligence, appellant maintained that he was unable to ascertain exactly how counsel was ineffective, although he "sensed" counsel was ineffective. Finally, appellant argued that he was unable to frame and present the issues properly in his first petition because he had to rely on the assistance of an inmate law clerk unschooled in the law.
As noted, because appellant had previously petitioned the district court for a writ of habeas corpus, any claims not raised in that earlier petition are deemed to have been waived unless appellant can demonstrate "both cause for the failure ... and actual prejudice... ." NRS 34.810(1)(b). Accepting as true appellant's reasons for failing to raise this claim in his earlier petition, we conclude that appellant has not established sufficient cause. Cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905 (9th Cir.1986) (petitioner's illiteracy and parole of inmate law clerk do not excuse petitioner's failure to pursue state appeal). Consequently, reversal of this matter for further proceedings is not warranted. We affirm the order of the district court denying appellant's petition.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Ratay, :
Petitioner :
:
v. : No. 271 C.D. 2018
: SUBMITTED: July 20, 2018
Workers' Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: August 31, 2018
Stanley Ratay (Claimant), a firefighter for the City of Philadelphia Fire
Department (Employer or City), petitions for review of an order of the Workers’
Compensation Appeal Board (Board) that affirmed the decision of a Workers’
Compensation Judge (WCJ) denying his claim petition. On appeal, Claimant
maintains that the WCJ and Board erred by misinterpreting Sections 108(r) and
301(f) of the Workers’ Compensation Act (Act),1 77 P.S. §§ 27.1(r) and 414, part of
the 2011 amendments to the Act known as Act 46. Section 108(r) added cancer
suffered by a firefighter caused by exposure to a known carcinogen recognized as a
Group 1 carcinogen by the International Agency for Research on Cancer (IARC) as
a compensable occupational disease. Section 301(f) limited cancer claims to
1
Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of July 7, 2011,
P.L. 251.
firefighters who could show four or more years of continuous firefighting service
and the absence of cancer prior thereto. In accordance with City of Philadelphia
Fire Department v. Workers’ Compensation Appeal Board (Sladek), 144 A.3d 1011
(Pa. Cmwlth. 2016) (en banc), appeal granted, 167 A.3d 707 (Pa. 2017),2 we affirm.
The pertinent facts are as follows. In 1977, Claimant joined the City’s
Fire Department. In 1991, he was promoted to lieutenant. When he was hired and
promoted, he passed physical examinations with no restrictions on his ability to work
and no treatment for any type of cancer. (WCJ’s May 25, 2017 Decision, Finding
of Fact (F.F.) No. 3(a) and (b).) In December 2005, Claimant was diagnosed with
bladder cancer at age fifty-five. (Id., No. 3(c).) A urologist removed a tumor the
size of a lemon, which grew back several times necessitating additional surgeries.
From December 26, 2005 to January 13, 2006, he was out of work. Approximately
six months later, he was out of work for an additional four weeks. In addition, there
were days that he had to take off work due to the toxic nature of a liquid treatment
injected through his urethra. He continues to have medical issues and undergo
various forms of treatment. (Id., No. 3(l).)
2
In Sladek, the Supreme Court granted review on the following issues:
(1) Whether the Commonwealth Court, in a case of first
impression, committed an error of law by misinterpreting Section
108(r) to require a firefighter diagnosed with cancer caused by an
IARC Group I carcinogen to establish exposure to a specific
carcinogen that causes his/her cancer in order to gain the rebuttable
presumption provided by the law?; and
(2) Whether the Commonwealth Court committed an error
of law by concluding that a legislatively-created presumption of
compensability may be competently rebutted by a general causation
opinion, based entirely upon epidemiology, without any opinion
specific to the firefighter/claimant making the claim?
167 A.3d at 707.
2
By way of background, there is no history of cancer in Claimant’s
family and his wife is not a smoker. Claimant, however, smoked for about forty
years, working up to about one and one-half packs per day before stopping in 2006.
In addition, firefighters were permitted to smoke in firehouses as a matter of course
and, consequently, Claimant was exposed to smoke in the firehouses over the years.
Further, although he has not imbibed alcohol since the 1980s, Claimant is a
recovering alcoholic and drank a six-pack to one-half case of beer per day. (Id., No.
3(m).)
On June 8, 2012, Claimant filed a claim petition alleging that he
suffered an occupational disease in the nature of bladder cancer as a result of his
exposure to IARC Group I carcinogens while working for Employer and that this
exposure was a substantial contributing factor in his diagnosis. Alleging an injury
date of December 26, 2005, he further averred that he was entitled to temporary total
disability benefits from December 26, 2005, to January 13, 2006, and payment of
medical expenses related to his diagnosis. (Id., No. 1.) In support of his position,
Claimant presented, inter alia, the deposition testimony of Barry L. Singer, M.D.
Dr. Singer opined that Claimant’s exposure to various carcinogens present at fires
was a significant contributing factor in the development of his bladder cancer. (Id.,
No. 6(f).) Employer denied Claimant’s allegations, presenting, inter alia, the
deposition testimony of Howard M. Sandler, M.D. to the effect that Claimant’s forty-
year history of heavy smoking was the most likely cause of his bladder cancer. (Id.,
No. 27.)
Subsequently, the WCJ denied Claimant’s claim petition, concluding
that he was not entitled to any causation presumption under the Act in that he failed
to “show that he has been diagnosed with a type of cancer ‘caused by exposure to a
known carcinogen which is recognized as a Group 1 carcinogen’ as required by
3
Section 108(r).” (WCJ’s Conclusion of Law No. 3.) In addition, characterizing
Claimant’s smoking history as the “800-pound gorilla in the room,”3 the WCJ
determined: “To the extent that Claimant is afforded the presumption and Sladek is
overturned . . . , Employer successfully rebutted the presumption with credible expert
evidence that smoking 1 ½ packs of cigarettes a day for 40 years was the most likely
cause of Claimant’s bladder cancer.” (Id.) The Board affirmed and Claimant’s
petition for review followed.
In order to prove that a firefighter’s cancer is an occupational disease,
he must show diagnosis of a type of cancer “caused by exposure to a known
carcinogen which is recognized as a Group 1 carcinogen.” 77 P.S. § 27.1(r)
(emphasis added). As this Court summarized:
Once a firefighter establishes that his type of cancer is an
occupational disease, then he may take advantage of the
statutory presumption in Section 301(e) and (f) of the Act.
The presumption relieves [him] of the need to prove that
his cancer was caused by his workplace exposure and not
another cause. See Section 301(e) of the Act, 77 P.S. §
413. So long as [he] can show four years of continuous
service and the absence of cancer prior to that service, he
is entitled to compensation under Section 301(f) of the
Act, 77 P.S. § 414.
Sladek, 144 A.3d at 1020.
Here, although the WCJ accepted Claimant’s testimony and evidence
that he was exposed to Group 1 carcinogens, the WCJ acknowledged that he failed
to prove that his cancer was a type of cancer caused by the Group 1 carcinogens to
which he was exposed. Specifically, the WCJ noted that Dr. Singer repeatedly
opined that he could not isolate any substance as the cause of a particular firefighter’s
3
(F.F. No. 27.)
4
cancer and that it was the constellation of exposures that led to cancer.4 Further, the
WCJ noted Dr. Singer’s testimony that he was not asserting that a specific
carcinogen caused a particular cancer.5 (F.F. No. 25.) Accordingly, the WCJ
determined that, without a causation presumption, Claimant could not meet his
burden based on the expert evidence that he submitted. (Id., No. 26.)
On appeal, the Board agreed, reiterating the following:
Given that Claimant failed to make an initial showing, the
burden of rebutting an established causal relationship did
not fall upon [Employer]. Sladek; Hutz [v. Workers’
Comp. Appeal Bd. (City of Phila.), 147 A.3d 35 (Pa.
Cmwlth. 2016)]. Assuming arguendo that Claimant was
entitled to a causation presumption, the WCJ specifically
accepted Dr. Sandler’s opinion that Claimant’s cancer was
not caused by his occupational exposures and was most
likely caused by his extensive smoking history. Rendering
credibility determinations is the quintessential function of
the [WCJ]. Kasper v. [Workers’ Comp. Appeal Bd.
(Perloff Bros., Inc.),] 769 A.2d 1243 (Pa. Cmwlth. 2001).
(Board’s February 22, 2018, Decision at 14.)
Accordingly, pursuant to our holding in Sladek, we affirm.6
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
Judge Fizzano Cannon did not participate in the decision of this case.
4
(Record, Item No. 23, December 21, 2012, Deposition of Dr. Singer, Notes of Testimony at
99-101.)
5
(Id.)
6
“It is axiomatic that a decision of an appellate court remains binding precedent, even if it has
been appealed, unless and until it is overturned by the Pennsylvania Supreme Court.” Germantown
Cab Co. v. Phila. Parking Auth., 27 A.3d 285, 287 (Pa. Cmwlth. 2011).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Ratay, :
Petitioner :
:
v. : No. 271 C.D. 2018
:
Workers' Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
AND NOW, this 31st day of August, 2018, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
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165 F.2d 811 (1948)
SHAPERO
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 10516.
Circuit Court of Appeals, Sixth Circuit.
February 3, 1948.
As Corrected March 15, 1948.
Thomas G. Long, of Detroit, Mich. (Thomas G. Long, of Detroit, Mich., on the brief), for petitioner.
L. W. Post, of Washington, D. C. (Theron Lamar Caudle, Helen R. Carloss, Lee A. Jackson and L. W. Post, all of Washington, D. C., on the brief), for respondent.
Before HICKS, ALLEN and MARTIN, Circuit Judges.
MARTIN, Circuit Judge.
Nate S. Shapero, a successful druggist of Detroit, Michigan, has petitioned for a review of the decision of the tax court holding that three separate trusts which he set up for his wife, his son, and his daughter fall within the ambit of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 an old acquaintance not to be forgot but ever brought to mind, at each periodic court session of a United States Circuit Court of Appeals, by confrontation with at least one justiciable controversy involving some variegated form of family trust.
Our own lead-off contribution to the vast accumulation of Clifford bibliography was made in Altmaier v. Commissioner of Internal Revenue, 6 Cir., 116 F.2d 162, in which certiorari was denied, 312 U.S. 706, 61 S.Ct. 827, 85 L.Ed. 1138. Prior to the promulgation of the Dobson doctrine, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, we collated our up-to-then contributions to the subject matter in Downie v. Commissioner, 6 Cir., 133 F.2d 899, and brought our review down to April 7, 1947, in Chertoff v. Commissioner of Internal Revenue, 6 Cir., 160 F.2d 691. Therefore, no full-dress opinion would seem to be required when we meet a controversy, like the instant one, in which we agree with the logical, well-wrought and convincing opinion of the majority of the tax court, sitting en banc. Not resting upon the Dobson doctrine, we would be content to affirm the decision of the tax court upon its rationale, amply supported by cited applicable authority, were it not that each of the contending parties insists that a new issue is presented, which of necessity must be decided and not pretermitted by this court. After studying the problem, we concur in this insistence.
The tax court sustained the Commissioner of Internal Revenue and held, upon the primary authority of the Clifford case, that, for the years 1940 and 1941, the petitioning *812 settlor is accountable under section 22(a) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 22(a), for the income of the three family trusts which he set up: those for his children being identical, and that for his wife differing only in immaterial conditions.
But, subsequent to the deficiency notice to the taxpayer and before this case was tried and decided by the tax court, a pertinent regulation, T.D. 5488, with an accompanying Mimeograph 5968 [1946, I.R. B. No. 2, Jan. 28, 1946] was issued by the Commissioner. T.D. 5488 was later amended by T.D. 5567 [I.R.B. No. 14, 1947, dated July 14, 1947]; and a Mimeograph (6156) accompanied the regulation, the first paragraph of which is substantially the same as the portion of Mimeograph 5968 which reads as follows: "The Treasury decision provides that Section 22(a) of the Code shall be applied in determining the taxability of trust income for taxable years beginning prior to January 1, 1946, without reference to the amendment to the regulations made by the Treasury decision. However, in cases not yet finally determined for such taxable years, it will be the policy of the Bureau, where no inconsistent claims prejudicial to the Government are asserted by trustees or beneficiaries, not to assert liability of the grantor under the general provisions of Section 22(a) of the Code, if the trust income would not be taxable to the grantor under the amendment to the regulations."
The petitioner argued to the tax court that, under the new regulations, he was not taxable; but the court thus responded in its opinion: "Our supplemental opinion in Estate of Louis Stockstrom, 7 T.C. 251, is dispositive of petitioner's argument based upon T.D. 5488 and Mimeograph 5968 [1946 I.R.B. No. 2, Jan. 28, 1946]." In the Stockstrom opinion to which it referred, the tax court had asserted that the Circuit Court of Appeals had "authorized," not "directed," it to consider the tax liability of Stockstrom on income from the trusts in the light of Treasury Decision 5488 and Mimeograph No. 5968; that the treasury decision, by its terms, was inapplicable to the tax years involved; and that the mimeograph presented a matter of administrative policy with which the tax court is not concerned. The opinion added that the Commissioner has unquestioned power to comply with his Mimeograph No. 5968 in "any proceeding falling within its scope which has not been tried and decided by this court"; and that, in such proceeding, the Commissioner of Internal Revenue may decide as a matter of administrative policy to comply or not to comply with his Mimeograph.
We are not in accord with the position taken by the tax court. Being an administrative tribunal and an independent agency within the Executive Branch of the Government, it should, in our judgment, have decided whether the Regulation and the Mimeograph do or do not, as a matter of law, apply to tax years prior to promulgation of the Commissioner's bulletins. The operative effect of the regulations and mimeographs should be left in no such nebulous shape. But we do not remand to the tax court and thereby prolong this litigation for the reason that, assuming retrospective applicability of the regulations and mimeographs, we think the decision of the tax court reached the correct result. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224. Our reasons for this view will be presently made apparent.
The relevant regulation is found in Treasury Regulations 111. See sec. 29.22(a)-21, as added by T.D. 5488, 1946-1 Cum.Bull. 19, and amended by T.D. 5567, 1947-14 Int.Rev.Bull. 2. The caption is "Trust Income Taxable to the Grantor as Substantial Owner Thereof." The introductory paragraph (a) reads, as follows: "Income of a trust is taxable to the grantor under section 22(a) although not payable to the grantor himself and not to be applied in satisfaction of his legal obligations if he has retained a control of the trust so complete that he is still in practical effect the owner of its income. Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788. In the absence of precise guides supplied by an appropriate regulation, the application of this principle to varying and diversified factual situations has led to considerable uncertainty and confusion. *813 The provisions of this section accordingly resolve the present difficulties of application by defining and specifying those factors which demonstrate the retention by the grantor of such complete control of the trust that he is taxable on the income therefrom under section 22(a). Such factors are set forth in general in paragraph (b) and in detail in paragraphs (c), (d), and (e), below."
In his skillfully prepared brief, the attorney for petitioner treats separately with each of the subdivisions of the amended regulations and urges that, under all, the instant trusts pass every test of nontaxability to the grantor. It is deemed unnecessary to discuss the effect of instead of to the provisions of the regulations, captioned respectively (b) In General; (c) Reversionary interest after a relatively short term; and (d) Power to determine or control beneficial enjoyment of income or corpus; inasmuch as the provisions of subdivision (e), Administrative control, are considered determinative of the issue. The first paragraph of this subdivision states: "Income of a trust, whatever its duration, is taxable to the grantor where, under the terms of the trust or the circumstances attendant on its operation, administrative control is exercisable primarily for the benefit of the grantor rather than the beneficiaries of the trust." The regulation then proceeds to illustrate at length when administrative control is to be considered "exercisable primarily for the benefit of the grantor." Among other statements, we find this assertion: "Where the trust corpus consists of stock or securities of a closely-held corporation, such a power may or may not, depending upon all the facts, be considered exercisable in a fiduciary capacity."
The statement is applicable here. We must look to the circumstances. The original corpus of the trust for the wife consisted of 20,000 shares of stock of a drug company founded by petitioner; and, during the years in controversy, each of the trusts for the children included 7,092 shares of this stock. The findings of fact disclose that, during 1940 to 1941, there were outstanding 190,798 shares of the drug-company stock. In 1940, 104,279 shares were voted, and 104,660 shares were voted in 1941. The percentage of shares voted by the Shapero interests, including the shares which were embraced in the trusts, amounted respectively to 60-64/100 percent in 1940 and 59-85/100 percent in 1941.
In each of the three trusts, executed on December 6, 1934, and amended by separate instruments on December 29, 1936, the petitioner nominated himself "Individual Trustee" and the Detroit Trust Company as "Corporate Trustee." The first numbered paragraph of each trust indenture provided: "The grantor shall have the power at anytime during his lifetime, by an instrument in writing delivered to the trustees, to modify, alter, change or amend this agreement in whole or in part, but not in such manner as to bring about a revocation of this agreement or to change or impair the right of enjoyment of any beneficiary, and provided, further, that grantor shall not have the power at any time during the continuance of the trusts hereof to revest in himself title to any part of the corpus or income of the trust hereby created."
The existence of reserved power, and not its exercise, is determinative in the assessment of tax liability in a case of this character. See Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916; Griffiths v. Commissioner, 308 U.S. 355, 357, 60 S.Ct. 277, 84 L.Ed. 319; Harrison v. Schaffner, 312 U.S. 579, 581, 61 S.Ct. 759, 85 L.Ed. 1055.
As to the broad administrative control retained by the petitioner, the opinion of the tax court well and truly stated: "We think it would be difficult to vest more complete administrative control in a trustee than that which petitioner expressly retained to himself over the corpus of each trust. He held as trustee `the fullest possible latitude in making investments,' the discretionary right to manage all the trust properties, the unlimited power to vote all trust stocks or to direct the manner in which they should be voted, `absolute and uncontrolled discretion' to determine the expediency and propriety of selling, mortgaging, or otherwise disposing of all trust property, `at such time or times and in such *814 manner, either public or private, and upon such terms' as he thought fit, the right to distribute in kind trust securities selected by him and to make a `final and conclusive' determination of the proportions and prices at which such distributions should be made, the privilege of joining with security holders in voting trusts, reorganizations and refinancing arrangements and to deposit trust stocks for that purpose, the `complete and absolute power * * * to direct the payment and conveyance * * * of any part or all of the principal of the trust property * * * as well as any accumulated income therefrom, to the then living beneficiary or beneficiaries thereof, in such proportions [as petitioner] may think proper,' and `the fullest and most complete powers and authority which it is possible for Grantor to give in respect of all sales, investments, expenditures, management and control of the trust property and estate; * * *' It is clear that under the trust instruments the intended and vested powers of the corporate trustees were limited to the perfunctory duties of property custodian and bookkeeper. To the extent that Detroit Trust Company did more than that in the management of the trusts, it acted at the grace of petitioner as individual trustee and was at all times subject to his control. Petitioner's complete control over the Trust Company was assured by his retention in himself as grantor of the power to remove the corporate trustee, and fill or leave open the vacancy thus created."
The only material restriction upon the grantor's almost unlimited power of administrative control over the trust properties was the divestiture of his right "to revest in himself title to any of the trust property and estate or the income produced therefrom."
Without considering the Treasury Decision in controversy, the tax court concluded that the bundle of rights retained by the petitioner and the benefits enjoyable by him were "such that there was no substantial change in his economic position as a result of the transfers in trust." We think the same conclusion is impelled upon a full view of the intended clarifying regulations promulgated by the Commissioner.
It would seem that, under the first paragraph of the trust indenture, the grantor might so amend the document as to permit loans to himself, primarily for his own benefit. The power to vote the trusteed shares was an attribute of substantial ownership. The tax court pointed out that "it was through the trusts that petitioner had control of more than 50 percent of the voted stock." The tax court could not escape the conclusion, nor can this court, that the petitioner "was able through his retained powers to continue to benefit economically from the transferred property."
The position of the petitioner here is weaker than was that of the taxpayer in Byerly v. Commissioner of Internal Revenue, 6 Cir., 154 F.2d 879, certiorari denied, 329 U.S. 727, 67 S.Ct. 79, wherein deficiency assessments against the settlor in a family trust indenture were sustained, ample basis being found for the conclusion of the tax court that, notwithstanding the existence of the trust, the settlor remained in substantial control of the corporation; and that his business associates were chosen as trustees, not for the exercise of their independent judgment as fiduciaries, but because they were employed by the corporation which he had created and controlled. Chertoff v. Commissioner of Internal Revenue, 6 Cir., 160 F.2d 691, 692, 696, held that the finding of the tax court, that parents in creating trusts for their children retained such a "bundle of rights" with relation to trust property as to be tantamount for federal tax purposes to substantial ownership within the Clifford doctrine, had warrant in the record and a reasonable basis in law. See also Steckel v. Commissioner of Internal Revenue, 6 Cir., 154 F.2d 4; Warren v. Commissioner, 45 B.T.A. 379, 385, affirmed on order, 6 Cir., 133 F.2d 312. Compare Miller v. Commissioner, 6 Cir., 147 F.2d 189, 193; Dawson v. Commissioner, 6 Cir., 163 F.2d 664.
An early helpful contribution to the import of the Clifford doctrine was that of the Second Circuit Court of Appeals in Commissioner v. Buck, 2 Cir., 120 F.2d 775, *815 which bears important present analogies. The opinion writer in that case dissented from the court's later opinion in Cushman v. Commissioner, 2 Cir., 153 F.2d 510, cited by petitioner. We are in accord with the dissent.
One of the most interesting of the earlier cases is Cory v. Commissioner of Internal Revenue, 3 Cir., 126 F.2d 689, 690. Circuit Judge Clark thus pithily opened his illuminating discussion: "The case at bar is but a short stanza in an epic entitled `The Use of the Short Term Trust for Tax Avoidance.' Taxpayers and their counsel have continuously sought to sail between the Scylla of surtaxes and the Charybdis of loss of control." Here, the taxpayer and his astute advocate, in much the same boat, encounter equally as rough sailing as did Cory and counsel. The navigator of each ship clung to such complete control of the vessel's direction and movement as to make a collision with Scylla inevitable.
Edison v. Commissioner, 8 Cir., 148 F.2d 810, 814, furnishes further authority for the conclusion which we have reached. The Court of Appeals said: "As we observed in Stockstrom v. Commissioner of Internal Revenue, 8 Cir., 148 F.2d 491, and Funsten v. Commissioner, 8 Cir., 148 F.2d 805, under our reading of the Supreme Court decisions, an owner who makes a gift in trust of property may still be taxable on its income, notwithstanding the legal effectiveness of the gift, where he has retained such control of the incidents and elements of his previous ownership, viewed in their practical significance in relation to the specific dedication, as to leave him in economic substance and result with what he previously had and enjoyed in the family situation. And, even though he may part also with control of the corpus of the gift as well as legal title, he equally may be taxable on the income which the property produces, where he has retained substantially his previous power, viewed in its practical significance in relation to the specific dedication, to command the disposition of the income."
Moreover, the same Circuit Court of Appeals, the Eighth, held upon the second appearance of the Stockstrom case, cited in its opinion, supra, that the tax court was justified by the evidence in holding that income was taxable to the settlor where she had created three trusts for the benefit of her children and grandchildren, wherein she named her husband and another person trustees and had reserved the right by amendment to name herself trustee, inasmuch as such reserved power gave her complete control over the actions of the trustees and over the distribution of the trust income. Even though the settlor did not appoint herself trustee, the unexercised power to revoke and amend was considered equally as effective in determining the settlor's measure of control as if the power had been exercised. Stockstrom v. Commissioner of Internal Revenue, 8 Cir., 151 F.2d 353. Here, the settlor, not only appointed himself controlling trustee, but expressly vested himself with broadest powers of control over the trust property.
The decision of the tax court is affirmed.
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40 F.2d 921 (1930)
PENNSYLVANIA R. CO.
v.
UNITED STATES et al. (Interstate Commerce Commission, Intervener).
No. 2434.
District Court, W. D. Pennsylvania
May 24, 1930.
*922 William S. Dalzell, of Pittsburgh, Pa., and Albert Ward, of Philadelphia, Pa. (Dalzell, Dalzell & McFall, of Pittsburgh, Pa., of counsel), for complainant.
Elmer E. Collins, Sp. Asst. to Atty. Gen., John Lord O'Brian, Asst. to Atty. Gen., and Louis E. Graham, U. S. Atty., of Beaver, Pa.
John S. Wendt, of Pittsburgh, Pa. (C. F. Taplin and H. H. Hoppe, both of Cleveland, Ohio, W. S. Bronson, of Washington, D. C., and W. W. Ahrens, of New York City, of counsel), for Pittsburgh & W. Va. Ry. Co.
Daniel W. Knowlton, Chief Counsel, and J. Stanley Payne, Asst. Chief Counsel, both of Washington, D. C., for Interstate Commerce Commission.
Before WOOLLEY, Circuit Judge, and GIBSON and SCHOONMAKER, District Judges.
WOOLLEY, Circuit Judge.
The Pittsburgh & West Virginia Railway Company applied to the Interstate Commerce Commission for a certificate of public convenience and necessity authorizing it to construct a branch, some six miles in length, from its line in the Monongahela Valley, known as its Connellsville Extension now under construction, to a point of junction with the Donora Southern Railroad, a four mile line which is practically a plant facility of the American Steel & Wire Company at Donora yet a common carrier subject to the Interstate Commerce Act. The proposed branch is intended to serve one or two minor communities near the Monongahela River but particularly the great plant of the American Steel & Wire Company which at present is served exclusively by a line of the Pennsylvania Railroad Company through connections with the same local railroad. After the Pennsylvania Railroad Company had intervened and a hearing was had, the Commission granted to the Pittsburgh & West Virginia Railway Company the certificate applied for (No. 7737 Finance Docket, 158 I. C. C. 749). The Pennsylvania Railroad Company then filed this bill (under chapter 32 of the Urgent Deficiency Appropriation Act of October 22, 1913, 38 Stat. 219, 220, 28 USCA § 43) to restrain the construction of the branch not on the ground that the Commission was without power to grant or withhold its permission but on the assertion that there was no competent evidence to sustain its certificate of public convenience and necessity. After the Interstate Commerce Commission had intervened, all parties respondent by their answers traversed the complainant's allegation of want of supporting evidence and as an additional defense challenged the complainant's right to maintain its bill because of lack of legal right exclusively to serve the named district and absence of legal injury inflicted by the Commission's order.
Before discussing these issues it may be well to look at the statute under which the proceeding before the Interstate Commerce Commission was inaugurated and concluded. The statute is the Transportation Act of 1920 and the pertinent provisions are paragraphs 18, 19 and 20 of section 1, Interstate Commerce Act, as amended by Transportation Act 1920, § 402 (49 USCA § 1, pars. 18-20). These provisions disclose a wholly new conception of control of interstate rail commerce in the United States a radical departure from the old order. Before this act, any railroad, though engaged in the public service, could, so far as the federal government was concerned, extend or abandon its lines at will, thereby reaching out for or giving up traffic in competitive or noncompetitive regions, resulting at times in increased cost of construction and operation and increased losses to the company so conducting its business and to its competitors, and increased burdens upon the public. The Congress by the act of 1920, however, provided that the expansion or contraction of railroad activities should no longer be a matter of a carrier's independent judgment or desire but, being a matter of national concern affecting the economical development and operation of adequate railway *923 systems, should be a subject for consideration and determination and control by the Interstate Commerce Commission in the interest of the carriers generally and of the public particularly. Texas & Pac. Ry. Co. v. Gulf, C. & S. F. Ry. Co., 270 U. S. 266, 277, 46 S. Ct. 263, 70 L. Ed. 578; Detroit & M. Ry. Co. v. Boyne City, G. & A. R. Co. (D. C.) 286 F. 540, 545; In the Construction of Railroad Lines in Eastern Oregon, 111 I. C. C. 3, 45. It provided specifically that:
"No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, * * * or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, * * * of such additional or extended line of railroad, and no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, * * * unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment." Paragraph 18, § 1.
In establishing this new policy of governmental control and having in mind the maintenance of competition and also the prevention of competition where it might hurt the carriers involved and the public at large, the Congress intended that this scheme of control should not be restricted to certain areas but should extend to all interstate carriers throughout the United States in order more effectively and economically to carry on everywhere the business of interstate transportation. Thus the Congress not only imposed upon the Commission a grave responsibility but reposed in it a broad discretion, one commensurate with the novel undertaking, and one not lightly to be disturbed by the courts. The exercise of this discretion amounts to an administrative judgment, comparable to that involved in a determination of the propriety or application of a rate, rule or practice, not to be set aside when it has substantial support of evidence. Virginian Railway Co. v. United States, 272 U. S. 658, 663, 47 S. Ct. 222, 71 L. Ed. 463; Dayton-Goose Creek Ry. Co. v. United States, 263 U. S. 456, 44 S. Ct. 169, 68 L. Ed. 388, 33 A. L. R. 472; Colorado v. United States, 271 U. S. 153, 166, 46 S. Ct. 452, 70 L. Ed. 878; Texas & Pacific Ry. Co. v. Gulf, C. & S. F. Ry. Co., 270 U. S. 266, 273, 46 S. Ct. 263, 70 L. Ed. 578; C., R. I. & P. Ry. Co. v. United States, 274 U. S. 29, 33, 34, 47 S. Ct. 486, 71 L. Ed. 911. This discretionary power, resulting in nation-wide transportation control, was vested in the Commission because of its peculiar function and extensive knowledge in respect to matters of interstate transportation and there is little in the statute to indicate, or to limit, the manner in which the Commission should exercise this discretion. Whether it should do so only after a hearing is not a question pertinent to the present case because a hearing was in fact held. The main question is whether at the hearing the Commission had competent evidence on which it could base its finding of public convenience and necessity.
The Pennsylvania Railroad says there were no facts proved and no findings of fact made in that regard and that, accordingly, the Commission's action in awarding the certificate was arbitrary and therefore invalid.
In form this proposition is one of law, made as though in a court of law. It is, however, addressed to the action of the Commission which, though vested with quasi judicial powers, is essentially an administrative tribunal. Before administering the law with respect to a given situation it must, of course, find the facts of the situation. But we surmise that it is not required to make formal findings of fact such as are required of a judge who, after a jury has been waived, hears and tries a case alone. Nor do we think that, as in the case of a judge trying facts, every phase of every fact pertinent to an application for a certificate of convenience and necessity need formally be proved and formally found because, in reposing discretion in the Commission, the Congress evidently had in mind that it was legislating with respect to a body of experts whose knowledge of transportation had through the years been accumulated from innumerable sources throughout the United States, and that, in carrying out the new policy of the transportation law, it intended that they should act as such, just as it looks upon the United States Board of Tax Appeals as a body of experts on taxation and intends, in given cases, such as special assessment of corporation taxes, that they should act as experts, and from their action in those cases it provided no appeal. So it seems that in the application for leave to extend the Donora branch, the Commission, an administrative tribunal, came to the trial of the issue of convenience and necessity equipped by training and experience to deal with that question adequately, and finally. Though acting as experts, the Commission must, nevertheless, have before it *924 facts in respect to the situation on which to base its judgment. An attempt to exercise discretion or render judgment without facts would not be an exercise of discretion at all. It would be an arbitrary act and, being beyond its power, would be unlawful. United States v. Abilene & So. Ry. Co., 265 U. S. 274, 288, 44 S. Ct. 565, 68 L. Ed. 1016. So the central issue on this bill is whether there were facts in the case before the Commission and, if so, whether they were substantial enough to warrant the Commission's order, wholly without regard to our views on its action. If there were facts and they were substantial, though differing in character and weight, this court cannot appraise or weigh them and take action of its own but must leave the matter entirely to the administrative body in whose hands the Congress placed it.
Are there any facts?
The first fact on which the complainant relies is that the large manufacturing area of Donora is efficiently and satisfactorily served by a line of its railroad which leads to Pittsburgh and, there meeting its main artery, extends east and west. Through that line and its manifold connections the heavy traffic moving into and out of Donora can be received from or moved to any zone in the United States, in consequence of which, it argues, there is no necessity for another railroad there. Against this fact and the conclusion drawn from it are others to the effect that if the proposed six mile branch of the Connellsville Extension were projected into Donora, a substantial portion of the heavy traffic out of and into that region, moving to and from the southeast and south over the Western Maryland Railroad and its connections, on which is the important port of Baltimore, could, because of the haul, shorter in respect to Donora and Baltimore than that of the Pennsylvania by seventy-one miles, be more speedily and economically handled. In addition, the haul over the Pittsburgh & West Virginia via Pittsburgh to Detroit is shorter by twelve hours than that of the Pennsylvania. Aside from the convenience which the new extension would render the community of Donora in having a line in competition with the Pennsylvania and in developing new industries, as indicated by resolutions of its Board of Trade, and aside from local considerations which move people in a community always to desire more rail facilities, the fact that by the new extension long hauls can be shortened and cheapened is alone a fact of substance which this court, on the complainant's contention that there are no facts, cannot ignore. Nor can it overlook the fact that by this extension the business in this area would have a new outlet not only to the east, southeast and south but to the west and northwest in combination with the Wheeling & Lake Erie, Bessemer & Lake Erie, and possibly the Wabash, to Lake Erie, which means the Lake Ports at which iron ore is received from the main sources of ore supplies farther to the northwest, permitting the return of ore cars to the Lake Ports loaded with coal where now they are returned by the Pennsylvania empty.
While the Commission in stating the case in its report referred to these matters as "claims" made by the contesting parties, these claims were, nevertheless, supported by facts proved by evidence, both pertinent and substantial, of which the Commission took notice and on which it manifestly based its decision. The Commission's allusions to its authorization of the Connellsville Extension previously given (No. 6229 Finance Docket, 138 I. C. C. 755) were more historical than anything else and were evidently made to disclose the "general plan" of the first extension which included transportation service to two very important industrial districts on the Monongahela river of which one is the district of Donora, here in question. In that case also the complainant was an intervening party. The Commission was not required to shut its eyes to what it saw in that proceeding or close its mind to the knowledge it there acquired, and proceed afresh in the instant application for a short extension from the long one without regard to what it knew and could not forget had a bearing one upon the other. Whatever regard the Commission may have given the former application as a related matter, distinguished from an evidential matter, in determining the later application cannot invalidate its last order. United States v. Abilene & S. R. Co., 265 U. S. 274, 44 S. Ct. 565, 68 L. Ed. 1016. There was, we find, independent of that proceeding and wholly within the instant proceeding, competent evidence on which the Commission could, and did, exercise its discretion with reference to the public convenience and necessity involved in the extension in dispute.
Discussion of what is really the first question in the case, that of the right of the Pennsylvania Railroad Company to maintain its bill in view of its lack of legal right to the entire transportation business of Donora and for want of legal wrong, committed or threatened, or of legal injury inflicted, by the Commission's order, has been purposely postponed *925 until after the issues and facts of the case have been stated so that the question of law might stand out more sharply. Being threatened by the Pittsburgh & West Virginia Railway Company, through its proposed extension, with competition for traffic in the Donora district, the Pennsylvania Railroad Company undoubtedly had such an interest in the application for the extension as entitled it to intervene and be heard. It did intervene and was heard. But that interest alone did not give it a right to maintain an independent suit to set aside the Commission's order. Such a suit can be brought and maintained by a competitor only where some right of its own has been violated by the order. Sprunt & Son, Inc., v. United States, 50 S. Ct. 315, 74 L. Ed. ___, decided April 14, 1930. True, the complainant now is and for a long time has been exclusively serving Donora and is now receiving the profits from handling all the traffic flowing into and out of that busy district. But that is a privilege rather than a right a privilege to be enjoyed so long as it shall last, not a right to be asserted, unless it be found somewhere in the law, written or unwritten. Certainly there is no unwritten law that gives a carrier, first to serve a community, the right to hold its traffic against all competitors. It is equally certain that the written law the Transportation Act of 1920 does not explicitly or implicitly accord a noncompetitive traffic area to the first taker as the law accords a trade-mark to the first adopter. Instead of doing this the written law negatives such a right by providing expressly for the invasion by one carrier into a territory exclusively served by another on a showing of convenience and necessity of more transportation service for those inside reaching out and those outside reaching in. Where, as here, the showing is lawfully made and the Commission has validly acted, the carrier at whose expense the change is wrought has had no legal right invaded and has suffered no legal injury. In consequence it has nothing on which to sustain an independent suit to vacate and set aside such an order of the Interstate Commerce Commission.
In disposing of this case we are disturbed by some uncertainty or informality in the proceeding. The case was heard on April 25, 1930, by the court consisting of three judges. 28 USCA § 47. At the opening, the parties respondent moved to dismiss the bill substantially, as we remember, on the point of law last discussed. The hearing came up on a motion for a preliminary injunction to restrain the execution of the Commission's order until final decree. It was, however, argued, because of the need of speedy decision, as though on motion at final hearing for a perpetual injunction. A restraining order was waived on the court's promise of a prompt decision. In this situation, if correctly stated, we prefer to decide the case on the merits. Therefore the motion to dismiss for a specific reason is formally denied and the bill, for the two reasons stated, is dismissed with costs for the original and intervening respondents.
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510 F.3d 377 (2007)
SHU WEN SUN, Petitioner,
v.
BOARD OF IMMIGRATION APPEALS, Respondent.
No. 06-0101-ag.
United States Court of Appeals, Second Circuit.
Submitted September 19, 2007.
Decided December 12, 2007.
Gary J. Yerman, New York, NY, for Petitioner.
*378 John J. Gaupp, Assistant United States Attorney (David R. Dugas, United States Attorney, Catherine M. Maraist, Assistant United States Attorney, on the brief) United States Attorney's Office for the Middle District of Louisiana, Baton Rouge, LA, for Respondent.
Before: MINER and CABRANES, Circuit Judges.[1]
PER CURIAM.
Petitioner Shu Wen Sun seeks review of an order of Immigration Judge ("IJ") Michael J. D'Angelo denying his applications for asylum and withholding of removal.[2] The Board of Immigration Appeals ("BIA") summarily affirmed the IJ's decision. In re Shu Wen Sun, No. A 95 462 484 (B.I.A. Dec. 21, 2005), aff'g No. A 95 462 484 (Immig. Ct. Hartford June 9, 2004). On appeal, petitioner argues that the IJ erred by (1) finding him to be not credible and (2) denying him the relief he sought. For the reasons stated below, we dismiss the portion of the petition seeking review of petitioner's asylum claim and deny the portion of the petition seeking review of petitioner's claim for withholding of removal.
BACKGROUND
Petitioner is a native and citizen of the People's Republic of China who claims that he arrived in the United States on or about August 20, 2001. On May 4, 2002, he filed an application for asylum and withholding of removal, claiming persecution based primarily on the alleged forced sterilization of his wife under Chinese family-planning policies.
The former Immigration and Naturalization Service subsequently commenced removal proceedings against petitioner. At the removal hearing before the IJ, held on June 9, 2004, petitioner conceded removability but sought asylum, withholding of removal, and relief under the CAT. To support these claims, petitioner offered as evidence his own testimony and certain corroborating documents, none of which were properly authenticated.
The IJ concluded that petitioner was lacking in credibility based in part on two observations. The first observation concerned petitioner's demeanor namely, the fact that he appeared to be "an evasive . . . and at times . . . non-responsive witness." The second observation concerned the existence of multiple discrepancies in the evidence that petitioner submitted to the Immigration Court. For example, petitioner provided varying accounts of (1) the sequence of events following his alleged encounter with local family planning officials and (2) the manner in which he obtained funds for his travel to the United States. (3) He testified that his marriage was registered on December 11, 1991 but submitted a marriage certificate dated October 11, 1991. (4) The identification numbers on the resident identification cards allegedly issued to petitioner and his wife did not match the identification numbers set forth on their household register document. Finally, (5) the translation of the *379 marriage certificate petitioner had submitted had been altered with "white-out."
The IJ further noted that the documents petitioner had submitted to verify his wife's involuntary abortion and sterilization appeared "fraudulent." Specifically, the IJ found that the issuance of an "abortion certificate" to document the involuntary abortion and sterilization of petitioner's unemployed wife conflicted with the United States Department of State Asylum Profile's ("Asylum Profile") explanation that any such certificate would be issued for a voluntary abortion as evidence for sick leave requests from work. The IJ also concluded that the authenticity of the official warning letter petitioner had submitted was fatally undercut by the Asylum Profile's observation that Chinese family planning officials do not issue written warnings to individuals who fail to comply with the one child policy. In all, the IJ concluded that petitioner appeared to have been "testifying from a rehearsed script of events" and that his story appeared to have been "fabricated."
Having determined that petitioner's evidence could not be credited, the IJ found that petitioner had not met his burden of proof with respect to any of his claims for relief. With respect to petitioner's asylum claim, the IJ made the further finding that, because petitioner had not demonstrated "by clear and convincing evidence" that he had entered the United States less than one year before filing his asylum application, petitioner's application for asylum was untimely. In re Shu Wen Sun, No. A 95 462 484 (Immig. Ct. Hartford June 9, 2004). Petitioner appealed to the BIA, which affirmed the IJ's decision without opinion. In re Shu Wen Sun, No. A 95 462 484 (B.I.A. Dec. 21, 2005).
This petition for review followed.
DISCUSSION
When the BIA issues an opinion that fully adopts the IJ's decision, we review the IJ's decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
I. Asylum Application
The IJ denied petitioner's asylum application upon finding that (1) the application was untimely and (2) petitioner did not qualify for any exceptions to the statutory filing deadline. We lack jurisdiction to review these determinations. See 8 U.S.C. § 1158(a)(3) (placing agency determinations as to the timeliness of an asylum application beyond judicial review); see also Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir.2007). In addition, while we do have jurisdiction to review "constitutional claims or questions of law," 8 U.S.C. § 1252(a)(2)(D), petitioner has raised no such arguments in his brief. Accordingly, we must dismiss for lack of subject matter jurisdiction the portion of his petition seeking to review the denial of his asylum claim by the IJ and the BIA. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329-30 (2d Cir.2006).
II. Withholding of Removal: Adverse Credibility Finding
Petitioner challenges the IJ's adverse credibility determination on several grounds. First, he contends that the inconsistencies identified by the IJ are based on mischaracterizations of his testimony. Second, he argues that, even if his evidence was inconsistent, the inconsistencies in question for example, the discrepancy *380 between the identification numbers shown on the household register document as opposed to the identification cards belonging to petitioner and his wife do not constitute a sufficient basis for an adverse credibility determination. Finally, he asserts that the abortion and sterilization certificates submitted in support of his application for relief did not conflict with the State Department Asylum Profiles. We find petitioner's arguments unavailing.
In Xiao Ji Chen, we noted that "the [Immigration and Nationality Act (`INA')] tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ." 471 F.3d at 333. Therefore, we undertake a "highly deferential" review of the IJ's findings, id. at 334, "look[ing] to see if the IJ has provided specific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding," id. (internal quotation marks omitted). Essentially, our review "is designed to ensure merely that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice," id. (internal quotation marks omitted).
As an initial matter, we note that the IJ appears to have misunderstood petitioner's testimony explanation of how he managed to obtain the funds to pay for his passage to the United States. That is, petitioner testified that he had obtained the money after he came to the United States, but the IJ understood petitioner to be claiming that he had raised this money while he was still in China. We conclude that petitioner's remaining challenges to the IJ's credibility determination are without merit.[3]
Nonetheless, even if we were to conclude that the IJ's reliance on this observation was error, which we decline to do, that conclusion would not lead us to disturb the IJ's overall decision. This is because, even leaving aside this observation, "the IJ's denial of petitioner's claim for withholding of removal was supported by substantial evidence and we are confident that the same decision would be made in the absence of the [alleged] deficiencies." Xiao Ji Chen, 471 F.3d at 336.
The IJ correctly noted that petitioner's initial testimony as to his date of marriage conflicted with the date shown on the marriage document that petitioner submitted to the IJ. The IJ was also justified in relying on the discrepancy between the Asylum Profile, which states that Chinese family planning officials do not issue written warnings to individuals who fail to comply with the one child policy, and the document petitioner submitted as an official letter which contained just such a warning. Cf. Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) ("In reviewing credibility determinations, our role is generally to evaluate whether the fact-finder made a reasonable determination as to petitioner's credibility.").
In addition, the IJ's opinion refers specifically to several findings concerning petitioner's behavior and demeanor at the removal hearing. As we noted in Jin Chen v. U.S. Dep't. of Justice, 426 F.3d 104 (2d Cir.2005):
*381 We give particular deference to credibility determinations that are based on the adjudicator's observation of the applicant's demeanor, in recognition of the fact that the IJs ability to observe the witness's demeanor places her in the best position to evaluate whether apparent problems in the witness's testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question.
Id. at 113. Here, the IJ noted that petitioner was evasive and non-responsive in a manner that suggested untruthfulness, rather than nervousness or difficulty comprehending the proceedings. In accordance with our prior case law, we "give particular deference" to this finding. Id.
Accordingly, we conclude that the IJ provided sufficient reasons for his adverse credibility finding and that the record contains sufficient evidence to support these reasons.
III. Withholding of Removal based on the Alleged Forced Sterilization of Spouse
Even if the IJ erred in finding petitioner to be non-credible, we hold that petitioner is ineligible for withholding of removal to the extent that his claim of persecution is based on the asserted forced sterilization of his alleged spouse. See Gui Yin Liu, 508 F.3d at 722-23.
In a similar case, our Court has recently held that a withholding of removal claim based solely on the forced sterilization of petitioner's wife is "doomed." Gui Yin Liu, 508 F.3d at 722-23; cf. Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 308 (2d Cir.2007) (en banc) ("[A]pplicants can became candidates for asylum relief only based on persecution that they themselves have suffered or must suffer."). The text of 8 U.S.C. § 1231(b)(3),[4] the provision governing withholding of removal, does not countenance a claim of "derivative persecution." Like a claim for asylum, withholding of removal requires a showing of direct personal persecution. A petitioner who has not "personally experienced persecution . . . on a protected ground" is ineligible to obtain withholding of removal relief. Id. at 306. Therefore, petitioner cannot base his claim for withholding of removal on his wife's alleged forcible abortion.
It is not clear whether petitioner also bases a claim for relief on the alleged sterilization of his cousin. Such a claim would meet with the same problems as one derived from a spouse's persecution and is, for the same reasons, foreclosed.[5]
CONCLUSION
For these reasons, the petition for review of the denial of asylum is DISMISSED for lack of jurisdiction and the petition for *382 review of the withholding of removal claim is DENIED.
NOTES
[1] The Honorable Thomas J. Meskill, who was a member of this panel and voted with the majority, passed away following argument in this case. The appeal is being decided by the remaining two members of the panel, who are in agreement. See 2d Cir. Interim R. 0.14(b).
[2] The IJ also denied Sun's application for relief under the Convention Against Torture ("CAT"). Sun's appeal does not, however, raise any arguments concerning this claim. Accordingly, we consider only his arguments regarding his claims for asylum and withholding of removal. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005) (explaining that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal).
[3] We also note that our recent decision in Zheng Jian Chen v. BIA, 461 F.3d 153 (2d Cir.2006) has indicated that, under certain circumstances, a discrepancy between the identification numbers shown on different documents may not necessarily indicate fraud. In Zheng Jian Chen, we observed that, although the petitioner had provided a specific explanation for the discrepancy, 461 F.3d at 156, the IJ had failed to investigate petitioner's explanation. Id. at 156. Accordingly, we remanded for further fact-finding. Here, the IJ did not conclude that the discrepancy was based on fraud but merely noted that "the numbers differ." In addition, petitioner did not offer any explanation for the discrepancy. As such, the IJ cannot be said to have erred by failing to investigate.
[4] 8 U.S.C. § 1231(b)(3)(A) provides for withholding of removal:
[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.
[5] Sun arguably may have claimed persecution based on his own alleged resistance to family planning officials' attempts to forcibly sterilize his cousin and the resulting retaliation he alleges from that incident. We conclude that the factual record was "adequately developed" on this issue and, accordingly, hold that there is no need for a remand to the BIA. Cf. Gui Yin Liu, 508 F.3d at 723 (remanding to the BIA for a determination of whether certain claims of direct persecution required more factual development). Because we have determined that the IJ did not err in finding petitioner to be not credible, any claim for relief on this basis is also foreclosed.
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378 F.Supp. 883 (1974)
Thomas B. BAILEY, Plaintiff,
v.
MEISTER BRAU, INC., et al., Defendants.
No. 69 C 1938.
United States District Court, N. D. Illinois, E. D.
June 5, 1974.
*884 Donald Page Moore, Arthur W. Hahn, Pope, Ballard, Shepard & Fowle, Chicago, Ill., for plaintiff.
George W. Hamman, Mayer, Brown & Platt, Roger Pascal, Schiff, Hardin & Waite, Richard Mueller, Lord, Bissell & Brook, Chicago, Ill., for defendants.
MEMORANDUM OPINION AND ORDER
McLAREN, District Judge.
This matter is before the Court on the application of the plaintiff for an allowance of attorneys' fees, costs and expenses. For the reasons set forth below, an award of $50,000 will be granted to the plaintiff for attorneys' fees, costs of $19,094.68 will be taxed, and $27,339.90 will be awarded to plaintiff as litigation expenses.
This action was brought for violations of 15 U.S.C. § 78j(b), SEC Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5, 15 U.S.C. § 77q(a), and for the common law tort of intentional interference with plaintiff's contractual relations.[1] Count 1 was brought as a derivative suit alleging a conspiracy between the defendants to defraud the Black Company and Bailey. In Bailey I, this Court found some of the defendants liable for the Securities Acts' violations. *885 The Court did not award damages under that count since one of the wrongdoers, Meister Brau, Inc. (M-B) is the owner of the majority of shares of the Black Company[2] and the Court believes that this would unjustly enrich M-B. See Bailey I at 877.
The Court did provide, however, that in exercising its discretion, it would consider granting an award of attorneys' fees and litigation expenses. See Bailey I at 882-883. Plaintiff's attorneys, Donald Page Moore, Arthur Hahn, and the firm of Pope, Ballard, Shepard and Fowle,[3] have presented affidavits setting out their fees and expenses. Briefs have been presented and a formal hearing has been waived. The following will constitute the Court's findings on the issues before it.
In their application, plaintiff's attorneys seek $389,809 in fees, based upon 8,926 hours of work, $19,094.68 in taxable costs, and $79,723.51 in litigation expenses, or a total award of $488,627.07.[4]
In determining the number of compensable hours expended by counsel, two breakdowns are required. First, it is necessary to allocate the hours expended between Count 1 and Count 3, since only those hours reasonably expended on Count 1 may be compensable. Plaintiff's counsel reviewed their timesheets and broke down the hours into three categories. First, there was time spent solely on Count 3. Second, there was "mixed time," which was time spent on Counts 1 or 3, but could not be separated. Third, there was "derivative time," which was time expended for Counts 1 and 3, which could not be apportioned, and which was claimed necessary for both counts. Plaintiff's application seeks reimbursement for the "derivative time" only.
The second breakdown is an allocation of the total time between partners, associates and paralegals. A stipulation was entered into between the parties setting the hourly rate for partners at $55, the hourly rate for associates at $40, and the hourly rate for paralegals at $15. These are reasonable rates for attorneys practicing in Chicago. Based on these rates, the firm's partners expended 3,711.10 hours, for a fee of $204,110.50; the associates expended 4299 hours, for a fee of $171,960;[5] and the paralegals expended 915.9 hours, for a fee of $13,738.50. Defendants do not disagree that the hourly rate is reasonable or that, in fact, the number of hours claimed was expended. As discussed later, they take issue with the allocation of the hours among the counts.
I.
Defendants first contend that plaintiff's counsel should not be awarded any fees, as the action under Count 1 was merely a device to obtain federal jurisdiction, no damages were awarded and relief was only sought for Bailey. In Bailey I, at 882-883, the Court stated the reasons why an award would be appropriate. Compare Walker v. Columbia Broadcasting System, Inc., 443 F.2d 33 (7th Cir. 1971). The mere fact that a monetary award may not be recovered does not preclude an award. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-397, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). So long as a benefit is conferred, attorneys' fees may be awarded. *886 See id.; Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir. 1970); White v. Auerbach, 363 F.Supp. 366 (S.D.N.Y.1973). As the Supreme Court stated in Mills:
"Where an action by a stockholder results in substantial benefit to a corporation he should recover his costs and expenses * * * [A] substantial benefit must be something more than technical in its consequence and be one that accomplishes a result which corrects or prevents an abuse which would be prejudicial to the rights and interests of the corporation or affect the enjoyment or protection of an essential right to the stockholder's interest."
396 U.S. at 396, 90 S.Ct. at 627, quoting Bosch v. Meeker Cooperative Light and Power Ass'n, 257 Minn. 362, 366-367, 101 N.W.2d 423, 425-427 (1960).
In determining an award of attorneys' fees, two conflicting policies must be reconciled. First, there is the policy which views fees as an incentive to bring actions which might otherwise not be brought and which seeks to encourage vindication of legal rights and federal law. See Milstein v. Werner, 58 F.R.D. 544, 549 (S.D.N.Y.1973). The other policy is that fee awards not be so excessive or so freely granted as to encourage strike suits. See id.; cf. Newmark v. RKO General, Inc., 332 F. Supp. 161 (S.D.N.Y.1971). In achieving a balance between these policies, various factors are to be considered. These factors include the amount recovered for the corporation or the benefit to it, the time fairly required to be spent on the case, the skill required and employed, the difficulty in unearthing facts, the prevailing rate of compensation, the contingent nature of the fee, the benefits to the public, and the novelty and difficulty of the questions involved. See Angoff v. Goldfine, 270 F.2d 185, 188-189 (1st Cir. 1959); Milstein v. Werner, 58 F.R. D. 544, 549-550 (S.D.N.Y.1973); see generally 3B J. Moore, Federal Practice, ¶ 12.1.15 et seq., at 23.1-451 (2d ed. 1974). Of these factors, the most important is the benefit conferred upon the corporation. See Milstein v. Werner, supra, 58 F.R.D. at 550. Furthermore, one should look to the benefit conferred upon the entire corporation. See Newmark v. RKO General, Inc., 332 F. Supp. 161 (S.D.N.Y.1971); Schleiff v. Biggers, 64 Civ.No. 3855 (S.D.N.Y. 1967); United States v. Moulton & Powell, 188 F.2d 865, 870 (9th Cir. 1951) (dicta).
Plaintiff contends that the benefit conferred upon Black Co. would have been its value, or $1,097,000, but for the complicity of M-B. In its prior opinion, this Court found that the value of the Black Co. was as above, and the value of the M-B shares transferred for it was $451,000. M-B became bankrupt prior to trial and plaintiff claims that the value of its shares was zero. Defendant contends that the only benefit of Count 1 was for Bailey and that that benefit should be valued at no more than $50,000. Plaintiff reminds the Court that until M-B went bankrupt in 1972, he sought an injunction to rescind the sale. It is necessary at this point also to remember that effectively there were only two shareholders, M-B (95.7%) and Bailey (4.3%). None of the other parties who sold shares to M-B complained of the exchange.
Determining what the benefit would have been to Black Co.[6] is not an easy problem. Clearly, the benefit should not be measured solely by Bailey's personal gain. If the Court were to accept plaintiff's view that the value of Black Co., or $1,097,009, was the value *887 of the benefit, the requested fees would seem clearly excessive. Plaintiff seeks almost $500,000 in compensation when the total possible benefit could be deemed, at most, slightly over $1 million. A "rule of thumb" has fixed the appropriate percentage at 20%. See 3B J. Moore, Federal Practice, ¶ 231.25, at 23.1-453 (2d ed. 1974). The Court believes, however, that even this amount i. e., 20% of $1,097,009, would be excessive in this case.
Several cases have stated that a small net benefit to the corporation, caused by the wrongdoing of a large shareholder, will not impede the recovery of attorneys' fees based upon the entire potential recovery. See Schleiff v. Biggers, supra; Newmark v. RKO General, Inc., supra. Compare May v. Midwest Refining Co., 121 F.2d 431, 439-440 (1st Cir. 1941). However, where the benefit is modest, the Court can reduce the award appropriately. See Whittemore v. Sun Oil Co., 58 F.R. D. 624 (S.D.N.Y.1973). In the instant case, the facts are unique. The only minority shareholder was Bailey. One of the wrongdoers, M-B, owned the remainder of the shares. This was known at the outset of the suit. A realistic appraisal of the fund which might have been created would have indicated one considerably less than that which plaintiff saw. Although certain rights were vindicated, the Court does not believe that fees should be based upon the total theoretical recovery.
Reduction is also warranted when one considers the time fairly required and spent on Count 1. First, plaintiff has made no apportionment between Counts 1 and 3 of the derivative time. Counsel states that all of that time was necessary for both counts; however, the time spent might have been apportioned, for example, in relation to the benefit achieved. Further, the amount of time and fees indicated, almost 9,000 hours and $400,000, is unreasonable when one views the value of the company. The Court, in analyzing the hours spent, also believes that too much time was devoted merely to ascertain the value of the company. This is not to say that counsel were not faced with difficult issues. The issues were difficult and did require considerable preparation. Counsel proved themselves extremely able and handled this litigation with the highest level of professional competence. The Court believes, however, that other factors are of more importance. In addition to the above, one must view the contingent nature of the litigation, and the fact that because of M-B's role, it was unlikely that a large fund would be created. For all of these reasons, the Court believes that a significant reduction is necessary. Under all the circumstances, the Court holds that the sum of $50,000 is a reasonable award for attorneys' fees.
II.
Plaintiff seeks an award of costs, pursuant to 28 U.S.C. § 1920 and F.R.Civ.P. 54(d). Plaintiff first seeks $208.00 for fees to the clerk and for service of process. Defendant objects to $149.75 to a Charles Miles. Mr. Miles was used as a special process server. Under § 1920(1), fees to the marshal are appropriate. The Court believes that this was a reasonable expense and will allow it. Plaintiff also requests $13,472.50 in court reporter fees.[7] Defendants object to $3,356.57 of the deposition transcript because it was merely for discovery. The Court believes the expense was reasonably necessary and will tax the entire amount. See Federal Sav. & Loan Ins. Corp. v. Szarabajka, 330 F.Supp. 1202 (N.D.Ill.1971).
Plaintiff also seeks $493.36 in witness fees. Defendant states that certain *888 of the persons were not called to testify. The Court will award fees not only to those witnesses called, see 28 U. S.C. § 1920(3), United States v. Lee, 107 F.2d 522 (7th Cir. 1939), but also to the other potential witnesses since their testimony would have been relevant and material. See FSLIC v. Szarabajka, supra at 1208-1209.
III.
Plaintiff also requests certain litigation expenses, totalling $79,723.21. Plaintiff seeks $10,951.40 in fees for Professor Lorie; $52,849.81 in fees for Mr. Weed; $4,000 in fees for Brown, Coleman & Hale; $4,365 in fees for the Illinois Co.; $1,609 in telephone expenses; and $5,948 in travel expenses. Ordinarily, fees for experts are not taxed in excess of subsistence and travel. See, e. g., Baum v. United States, 432 F.2d 85 (5th Cir. 1970); Hill v. Gonzalez, 53 F.R.D. 1 (D.Minn.1971). However, because of the nature of this particular case, and acting in its discretion, the Court will grant the request in its entirety as to Professor Lorie's fees. As for Mr. Weed, the Court does not believe that the expense is reasonable in light of the total value of the company, and the contingent nature of this case. The Court, therefore, will award plaintiff $10,000 in fees and $1,000 in expenses for Mr. Weed. As for Brown, Coleman and Hale, and the Illinois Co., the Court will award them 50% of the fees, or $2,000 and $2,182.50, respectively. The request for an award of telephone expenses is denied.
As for travel expenses, the Court does not believe that the attorneys' travel expenses should be taxed. See Hope Basket Co. v. Product Advancement Corp., 104 F.Supp. 444 (W. D.Mich.1952); 6 J. Moore, Federal Practice, ¶ 54.77 [8], at 1377 (2d ed. 1974). Two sums, $156.00 and $1,050, were expended for the travel expenses of deponents and witnesses, Harold Noble and Bernard Berry, and the Court will allow these to be taxed. Also, the motel expense of $49.75 for the deposition of Mr. Weaver will be allowed. The total litigation expenses allowed equal $27,339.90.
It is so ordered.
NOTES
[1] See this Court's Memorandum Opinion and Order of September 27, 1973 (Bailey I) for a full recitation of the facts of this case and the Court's findings.
[2] The Black Company had 70,000 shares outstanding. M-B owns 67,000 shares (95.7%) and Bailey owns 3,000 shares (4.3%).
[3] Plaintiff was also represented by the firm of Nachman, Munitz & Sweig. Their work was limited to Count 3, under which no award of attorneys' fees will be made.
[4] Plaintiff's attorneys originally sought a total award of $490,884.57. Amendments to its original petition consisted of the following: the amount of attorneys' fees requested was increased from $389,739 to $389,809 due to computation errors. The amount requested, as a taxable cost, for court reporter fees was reduced from $15,800.00 to $13,472.50.
[5] The firm's associates devoted many more hours to the derivative time; however, the firm made a percentage reduction in the number of hours based upon the experience and input of each associate.
[6] If one were, in a vacuum, to determine the amount of loss to Black Co., it would be the difference between the fair value of what the seller received and the fair value of what he would have received had there been no fraud. See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 155, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). In the instant case, that would appear to be the difference between the value of the corporation shares, or $1,050,000, and the value of the stock used as payment at that time, $451,000.
[7] Plaintiff originally sought $15,800 in fees. This was reduced because plaintiff sought reimbursement at the rate for daily copy which had been specially ordered, rather than the normal rate. See Farmer v. Arabian-American Oil Co., 379 U.S. 227, 234, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964).
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543 U.S. 1083
HAYESv.UNITED STATES, ante, p. 880.
No. 04-5055.
Supreme Court of United States.
January 10, 2005.
1
Petitioner for rehearing denied.
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Case: 18-20015 Document: 00514815142 Page: 1 Date Filed: 01/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-20015 United States Court of Appeals
Fifth Circuit
FILED
January 30, 2019
UNITED STATES OF AMERICA,
Lyle W. Cayce
Plaintiff – Appellee, Clerk
v.
DAVID THOMAS HUGHES,
Defendant – Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-86-1
Before REAVLEY, ELROD, and WILLETT, Circuit Judges.
PER CURIAM:*
Hughes pleaded guilty to bank burglary. He was sentenced to 240
months in prison and ordered to pay $189,933.31 in restitution, with interest
charged. The judgment provided that $100 was “due immediately” and
provided the following payment schedule for the remaining amount:
Balance due in payments of the greater of $25 per quarter or 50%
of any wages earned while in prison in accordance with the Bureau
of Prisons’ Inmate Financial Responsibility Program. Any balance
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-20015 Document: 00514815142 Page: 2 Date Filed: 01/30/2019
No. 18-20015
remaining after release from imprisonment shall be paid in equal
monthly installments of $500 to commence 60 days after the
release to a term of supervision.
Several years later the government discovered that Hughes had
accumulated $3,464.85—largely prison wages—in his inmate trust account.
Pursuant to 18 U.S.C. §§ 3613(a), 3664(n), and 3664(k), the government moved
for the immediate turnover of those funds. Hughes opposed the request and
filed a cross-motion to release funds, arguing, inter alia, that the district court
(1) only required him to make payments in installments and (2) “specifically
declined to order immediate payment of the entire amount.” Agreeing with the
government, however, the district court ordered the immediate turnover of
“funds up to the amount of $ 201,493.63,” with a $200 carve out for Hughes’s
telephone and commissary needs. Hughes timely appealed.
On appeal, Hughes argues that the district court erred in granting the
government’s motion because his criminal judgment required the restitution
balance owed beyond $100 to be paid in quarterly installments and did not
order that the balance be paid immediately. Because the government does not
allege that he defaulted on his restitution payments, Hughes argues, the
government lacked the authority to seek immediate payment of the full
restitution amount.
The parties do not cite, and research has not revealed, any binding
precedent from this court analyzing a case to Hughes’s, in which the criminal
judgment included a repayment schedule that began during the term of
imprisonment but did not state that the full restitution amount was due
immediately. Hughes, however, directs us to United States v. Martinez, in
which the Tenth Circuit confronted a structurally similar payment schedule.
812 F.3d 1200 (10th Cir. 2015). The judgment in Martinez required the
defendant to pay “$300 immediately,” with the “balance due” in accordance
2
Case: 18-20015 Document: 00514815142 Page: 3 Date Filed: 01/30/2019
No. 18-20015
with an installment schedule. Id. at 1203–04. Although the defendant had
complied with his payment plan, the government nevertheless sought
garnishment of his retirement accounts. Id. at 1202.
The Tenth Circuit concluded that the government lacked the authority
to garnish the defendant’s retirement accounts because doing so would exceed
the terms of the restitution order; it reasoned that:
By statute, it is the district court—not the government—that
determines how a defendant is to pay restitution. See [18 U.S.C.] §
3664(f)(2) (“[T]he court shall . . . specify in the restitution order the
manner in which, and the schedule according to which, the
restitution is to be paid . . . .”) (emphasis added)). Thus, the
government can enforce only what the district court has ordered
the defendant to pay. See Enforce, Black’s Law Dictionary 645
(10th ed. 2014) (defining “enforce” primarily as “[t]o give force or
effect to [a law]; to compel obedience to [a law]”).
Id. The court rejected the government’s argument it could enforce the full
amount notwithstanding the installment schedule, construing § 3572(d), which
provides that “[a] person sentenced to pay . . . restitution . . . shall make such
payment immediately, unless, in the interest of justice, the court provides for
payment . . . in installments,” to imply that the full restitution amount is not
due immediately when a court orders repayment pursuant to an installment-
based plan. Id. at 1205.
We are persuaded by the Tenth Circuit’s analysis. When a restitution
order specifies an installment plan, unless there is language directing that the
funds are also immediately due, the government cannot attempt to enforce the
judgment beyond its plain terms absent a modification of the restitution order
or default on the payment plan. See § 3572(d)(1); Martinez, 812 F.3d at 1205.
Turning to Hughes’s order, we find no language directing that the full
restitution amount was immediately due or owing, and the government does
3
Case: 18-20015 Document: 00514815142 Page: 4 Date Filed: 01/30/2019
No. 18-20015
not allege he was in default. 1 Like Martinez, Hughes’s criminal judgment
specifies that a small amount ($100) was due immediately, and for the
remaining balance to be paid in installments. The government cannot enforce
restitution payments beyond those terms unless Hughes defaults on his
payments or the district court modifies the payment schedule.
The government points to United States v. Ekong, 518 F.3d 285 (5th Cir.
2007) (per curiam) and United States v. Diehl, 848 F.3d 629 (5th Cir. 2017) in
support of its argument that Hughes’s payment schedule is of no consequence.
Both are distinguishable because the judgments in those cases contained
different language. The payment schedule in Ekong, for example, was
conditioned on whether a balance remained when the defendant began her
term of supervised release. 2 In rejecting the defendant’s argument that the
government was barred from seeking immediate payment “because the
criminal judgment specified that restitution be paid in installments,” we noted
that “[t]here [was] nothing in the criminal judgment to the contrary.” Ekong,
518 F.3d at 286. From this, we infer that the full restitution amount was
collectible immediately simply because the payment schedule was never
triggered. See id.; see Martinez, 812 F.3d at 1207. Ekong is thus
distinguishable.
1 Although the government argues that it can seek payment beyond the installment
schedule because the judgment says that “[u]nless the court has expressly ordered
otherwise . . . payment of criminal monetary penalties is due during imprisonment,” this is a
default provision and, as explained, the court expressly ordered otherwise. See United States
v. Roush, 452 F. Supp. 2d 676, 681 (N.D. Tex. 2006) (“The negative pregnant of that default
provision is that if the court has expressly ordered otherwise—as this Court did by checking
box D—then payment is not due during imprisonment.”).
2 See Martinez, 812 F.3d at 1207 (“If upon commencement of the term of supervised
release any part of the restitution remains unpaid, the defendant shall make payments on
such unpaid balance beginning 60 days after the release from custody at the rate of $500 per
month until the restitution is paid in full.”) (quoting Judgment in a Criminal Case at
6, United States v. Ekong, No. 3:04–CR–030–M (N.D. Tex. Sept. 10, 2004), ECF No. 74).
4
Case: 18-20015 Document: 00514815142 Page: 5 Date Filed: 01/30/2019
No. 18-20015
And the judgment in Diehl did not specify a payment schedule; rather, it
provided that “[i]f the defendant is unable to pay this indebtedness at this
time, the defendant shall cooperate fully with the [government] to make
payment in full as so[o]n as possible, including during any period of
incarceration.” 848 F.3d at 630. The relevant issue there was whether the
defendant’s participation in the BOP’s inmate financial responsibility program
and adherence to its payment schedule barred the government from enforcing
the full restitution amount. Id. at 633. Although we agreed with the decisions
of other courts “determining that an inmate’s compliance with an IFRP
payment schedule does not change the fact that the Government may collect
on a criminal monetary penalty immediately,” we noted this would only be the
case “where the judgment does not specify a payment schedule.” Id. Indeed, we
held the government could demand immediate payment in Diehl because the
judgment “did not . . . specify installment payments for satisfaction of either
the fine or the special assessment as required by 18 U.S.C. § 3572(d) to disrupt
the default rule of immediate payment.” Id. at 635. Importantly, we noted that
the government’s “enforcement of the order against Diehl’s property, including
surplus funds held in his inmate trust account, did not exceed the terms of the
original judgment.” Id. (emphasis added). As discussed, that is not the case
here, as the government’s attempt to enforce the full restitution amount
conflicts with the installment-based directive in Hughes’s original judgment.
The government argues in the alternative that it is entitled to the funds
in Hughes’s trust account by virtue of § 3664(n), which provides:
If a person obligated to provide restitution, or pay a fine, receives
substantial resources from any source, including inheritance,
settlement, or other judgment, during a period of incarceration,
such person shall be required to apply the value of such resources
to any restitution or fine still owed.
5
Case: 18-20015 Document: 00514815142 Page: 6 Date Filed: 01/30/2019
No. 18-20015
We do not think the gradual accumulation of prison wages constitutes
“substantial resources” such that it fits within § 3664(n)’s ambit; rather we
think this provision refers to windfalls or sudden financial injections. 3 Indeed,
in United States v. Scales, we suggested that this provision contemplates
“unanticipated resources” that become “suddenly available.” 639 F. App’x 233,
239 (5th Cir. 2016) (per curiam); see also United States v. Bratton-Bey, 564 F.
App’x 28, 29 (4th Cir. 2014) (“Additionally, a defendant’s receipt of a windfall
during imprisonment triggers an automatic payment requirement.”); United
States v. Key, No. 3:12-CV-3026-L, 2013 WL 2322470, at *2 (N.D. Tex. May 28,
2013) (“There is no indication that Key has received a ‘windfall’ or ‘substantial
resources’ of the type in section 3664(n).”). 4 Put simply, we think the examples
listed in § 3664(n)—“inheritance, settlement, or other judgment”—fit the mold
of “substantial resources,” but that prison wages do not. As a result, the
government is not entitled to the immediate turnover of Hughes’s inmate trust
account under § 3664(n).
The government’s final argument arises under § 3664(k), which grants a
district court the authority to modify a payment schedule upon receiving
notification of a “material change in the defendant’s economic circumstances.”
§ 3664(k); see United States v. Franklin, 595 F. App’x 267, 272 (5th Cir. 2014)
3 Although the government urges us to follow United States v. Poff, in which the Ninth
Circuit concluded that veteran disability benefits deposited into an inmate’s trust account
constituted “substantial resources,” we note the Supreme Court recently vacated and
remanded the judgment in that case. 727 F. App’x 249, 251 (9th Cir. 2018), cert. granted,
judgment vacated, 18-195, 2019 WL 113040 (U.S. Jan. 7, 2019).
4 See also United States v. French, No. 3:09-CV-1657-BF, 2010 WL 11618076, at *1
(N.D. Tex. Aug. 19, 2010) (“Similarly, a windfall during incarceration triggers an automatic
obligation to pay restitution.”); Roush, 452 F. Supp. 2d at 679 (N.D. Tex. 2006) (“Moreover, a
defendant’s receipt of a windfall during imprisonment triggers an automatic payment
requirement.”). We also note the Supreme Court recently favored a narrower reading of the
MVRA. See Lagos v. United States, 138 S. Ct. 1684, 1689 (2018) (“To interpret the statute
broadly is to invite controversy on those and other matters; our narrower construction avoids
it.”).
6
Case: 18-20015 Document: 00514815142 Page: 7 Date Filed: 01/30/2019
No. 18-20015
(per curiam) (“A district court may adjust a restitution-payment schedule when
there has been a ‘material change in the defendant’s economic circumstances
that might affect the defendant’s ability to pay restitution.’”). Although it is
dubious whether the gradual accumulation of prison wages constitutes a
“material change in the defendant’s economic circumstances,” we note that the
district court’s turnover order was not based on § 3664(k), and we find no
language demonstrating that it intended to adjust or modify the payment
schedule contained in Hughes’s original judgment.
The district court’s order dated November 27, 2017, is VACATED.
7
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 18, 2006
No. 05-16593 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00016-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG RUSSELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 18, 2006)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
This appeal presents one issue: whether supervised release standard
condition No. 13 delegates a judicial function to the district court’s probation
office. We resolved this issue in United States v. Nash, 438 F.3d 1302, 1306 (11th
Cir. 2006).1 “Standard Condition Thirteen . . . does not improperly delegate a
judicial function to a probation officer. . . .” Id. at 1306.
AFFIRMED.
1
The mandate in Nash issued on April 14, 2006.
2
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64 F.3d 668
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.In re: Richard C. WERREN, Sr., an individual Debtor,Susanna WERREN; Richard Werren Motors, Inc., a Californiacorporation; Richard Werren, Sr., Plaintiffs/Appellants,v.ROYAL TRUSTCO LTD., and its subsidiary Royal Trust Bank(Switzerland); Commonwealth Land Title Insurance Company;James C. Bearden; Benjamin Tunnell, Inc.; Bruce S.Schildkraut; Pillsbury, Madison & Sutro; Gentra Inc.;Gentra Capital Corp., Defendants/Appellees.
No. 94-55646.
United States Court of Appeals, Ninth Circuit.
Submitted April 3, 1995.*Submission Deferred April 3, 1995.Resubmitted May 16, 1995.Decided Aug. 22, 1995.
1
Before: D.W. NELSON and CANBY, Circuit Judges; TANNER,** District Judge.
2
MEMORANDUM***
OVERVIEW
3
Richard Werren Sr., the debtor in the underlying action, filed a petition for relief under Chapter 11 of the Bankruptcy Code on January 7, 1992.1 On June 12, 1992, Appellants filed a related state court action in Orange County Superior Court.2 On June 19, 1992, Defendants/Appellees removed the state action to the Bankruptcy Court. The matter was transferred to the United States District Court on July 2, 1992 on the debtor's request for Withdrawal of Reference. The district court denied the motion, and the case was returned to the bankruptcy court. The bankruptcy court dismissed Appellants' state court action with prejudice on September 28, 1993.
4
Richard Werren, Sr., his solely owned business, Richard Werren Motors, Inc., and his ex-wife, Susanna Werren, a subordinated creditor, appeal the district court's order affirming the judgment of the bankruptcy court dismissing with prejudice Werren's adversary complaint against Royal Trustco, Ltd., et al., for failure to prosecute.3 This case was withdrawn from submission on June 16, 1995, and resubmitted on May 17, 1995.
I. JURISDICTION
5
Appellants argue that the bankruptcy court lacked jurisdiction over the Werrens' underlying adversary proceeding.4
6
We review de novo the district court's acceptance of jurisdiction, while examining its factual determinations for clear error. Maitland v. Mitchell (In re Harris Pine Mills), 44 F.3d 1431, 1434 (9th Cir.1995).
7
Bankruptcy judges have authority to "hear and determine all cases under Title 11 and all core proceedings arising under Title 11 or arising in a case under Title 11 ... and may enter appropriate orders and judgments ..." 28 U.S.C. Sec. 157(b)(1) (1988).
8
A. Claims "arising in" a case under Title 11
9
"Arising in" proceedings are those that are not based on any right expressly created by Title 11, but which nevertheless have no existence outside of the bankruptcy. In re Harris Pine Mills, id. at 1435.5
10
Appellants' complaint alleges, in part, that the Appellees conspired to submit a fraudulent appraisal to the bankruptcy court in order to obtain relief from the automatic stay imposed by section 362 of the Bankruptcy Code. Since this claim clearly has no existence outside of the underlying bankruptcy case which imposed the automatic stay, it "arises in" Title 11 of the code and is a core proceeding.
11
B. Claims "related to" a case under Title 11
12
The bankruptcy judge may also hear non-core matters that are otherwise "related to" a case under Title 11. 28 U.S.C. Sec. 157(c)(1). A proceeding is "related to" bankruptcy if the outcome could conceivably have any effect on the estate being administered in bankruptcy. 28 U.S.C.A. Sec. 1334(b); Fietz v. Great Western Savings (In Re Fietz), 852 F.2d 455, 457 (9th Cir.1988).
13
The fraud action challenges the propriety of the bankruptcy court's grant of relief from the automatic stay. Had the bankruptcy court denied Appellee's motion for relief, the assets of the debtor's estate would have been affected. Thus, Appellants' action is "related to" a case under Title 11. Under either theory, jurisdiction is conferred upon the bankruptcy court.
C. Entry of final judgments and orders
14
In core matters, bankruptcy courts may enter final orders and judgments. 28 U.S.C. Sec. 157(b)(1). In non-core proceedings, final judgments and orders may not be entered without consent of the parties. In re Harris Pine Mills, 44 F.3d at 1436; 28 U.S.C. Sec. 157(c)(1).
15
This court has held that cases arising out of the liquidation of assets of a bankruptcy estate fall within the language of Sec. 157(b)(2)(O) and constitute core proceedings. In re Harris Pine Mills, 44 F.3d at 1437.
16
Appellants' post-petition action arises out of the bankruptcy court's grant of a motion for relief from the automatic stay and subsequent sale of the bankruptcy estate property. Thus, it is a core proceeding contemplated by Sec. 157(b)(2)(O).6
17
Even were this proceeding deemed non-core, Appellants have consented to jurisdiction. Appellants filed a Notice of Removal on June 18, 1992. The removal notice states that: "upon removal, the proceeding is core and in the event the proceeding is non-core, RTB and SCHILDKRAUT consent to entry of final orders or judgments by the bankruptcy judge." Appellants' Excerpts of Record 3. Furthermore, Appellants failed to file a statement objecting to bankruptcy court jurisdiction in the manner required by Bankruptcy Rule 9027(e)(3).7 Appellants' claim that the bankruptcy court lacks jurisdiction to enter final judgment is without merit.
II. DISMISSAL OF ACTION
18
Appellant argues that the trial court lacks the authority to dismiss an action sua sponte; Werren also argues that the court improperly relied on local Bankruptcy Rule 121 as a basis for dismissal. Appellants' argument is frivolous.
A. Court's Authority
19
The inherent authority of a trial court to dismiss an action sua sponte for lack of prosecution was recognized in Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962). That authority has been consistently upheld by this court. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir.1984); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986).
20
Rule 41(b) of the Federal Rules of Civil Procedure expressly authorizes dismissal of an adversary proceeding if the plaintiff to the action fails to prosecute the case.8
21
The dismissal of a case for failure to comply with relevant local rules is sufficient grounds for dismissal for failure to prosecute under Rule 41(b). See Henderson, 779 F.2d at 1424.
22
Appellants consistently failed to prosecute their case or to comply with the local rules. During the 15 months following the filing of the state court action, Appellants never served a summons and complaint on any of the Appellees. At least four status conferences for the state action were held before Judge Ryan in the bankruptcy court. Prior to each conference, Appellants failed to contact Appellees in regard to preparation of a joint status report as required by Local Bankruptcy Rule 119, and failed to prepare and file a report under Local Bankruptcy Rule 121.
B. Due Process
23
Appellants claim that a "fair and adequate reading" of Local Bankruptcy Rule 115(2) requires the bankruptcy court to hold a hearing upon notice prior to dismissal. Local Rule 115(2) provides: "[p]roceedings which have been pending for an unreasonable period of time without any action having been taken therein may be dismissed for want of prosecution upon notice and opportunity to request a hearing."
24
Clearly, the rule simply requires notice and an opportunity to request a hearing. Notice was given to Appellants in the form of repeated warnings at successive status conferences that their action would be dismissed if Appellees were not served with a summons and complaint. At no time did Appellants request a hearing.
25
The Supreme Court has recognized that an action may be dismissed for failure to prosecute without notice or an evidentiary hearing. Wabash R.R. Co., 370 U.S. at 632.9 Due process is satisfied if a party has knowledge of the consequences of his or her own conduct. Id. In Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir.1984), this court held that sua sponte dismissal did not violate due process because plaintiff was afforded adequate prior notice that his delay in prosecuting the case would result in dismissal.
26
Here, Judge Ryan repeatedly warned Appellants that their failure to prosecute the state action with due diligence would result in dismissal of the action with prejudice. Appellants had ample warning that failure to serve the summons and complaint would result in dismissal. Judge Ryan's sua sponte dismissal of the state action was proper.
C. Abuse of Discretion
27
Generally, a trial court's dismissal of an action for failure to prosecute will be reversed only upon a finding of clear abuse of discretion. Henderson, 779 F.2d at 1423. A finding of abuse of discretion requires "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached weighing the relevant factors." Anderson v. Air West, Inc., 542 F.2d 522, 524 (1976). Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992), quoting Malone v. United States, 833 F.2d 128, 130 (9th Cir.1987).
28
The relevant factors which a court may consider in determining whether to dismiss a case for lack of prosecution are: (1) the public's interest in expeditious resolution of litigation; (2) the trial court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Henderson, 779 F.2d at 1423.
29
Appellants complain that the court did not make specific findings as to each factor. While it is preferred, it is not required that the district court make explicit findings to show that it considered the essential factors. Id. at 1424; Bonzelet, 963 F.2d at 1261. We may review the record independently to determine whether there has been an abuse of discretion. Id. The first two factors clearly support the court's decision to dismiss this case.
30
Appellants allowed 15 months to pass without even serving a summons and complaint. Appellees consumed valuable court time and resources preparing for status conferences which could have been devoted to other cases being litigated expeditiously. A trial court is in the best position to determine how its docket should be managed. Cvetkov, 739 F.2d at 496. While risk of prejudice to defendants is a factor, actual prejudice is not required. Appellees were put to the expense of incurring additional attorneys fees for each status conference at which Appellants failed to comply with the court's order to move forward with the case.
31
Although public policy favors decisions on the merits, Appellants' lost opportunity to have their case decided on the merits resulted from Appellants' own dilatory behavior.
32
Appellants' contention that the court failed to consider alternative measures is also meritless. The court is not required to exhaust every potential alternative to dismissal, but must consider possible and meaningful alternatives. Henderson, 779 F.2d at 1424.
33
A district court's warning to a party that his failure to prosecute his case will result in dismissal can satisfy the "consideration of alternatives" requirement. Bonzelet, 963 F.2d at 1262. The district court did not abuse its discretion in granting the Rule 41(b) dismissal for lack of prosecution, and we AFFIRM.
III. SANCTIONS
34
Appellees seek an award of double costs as sanctions against Appellants for bringing a frivolous appeal.
35
This court has discretion to award damages and single or double costs as a sanction against bringing a frivolous appeal. Fed.R.App.P. 38; Wood v. McEwen, 644 F.2d 797, 802 (9th Cir.1981); McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir.1981).
36
An appeal is considered frivolous when the result is obvious or appellant's arguments of error are wholly without merit. Id.
37
Appellants' argument that the trial court lacks the authority to dismiss an action sua sponte is clearly frivolous, as is the argument that a "fair and adequate reading" of Local Bankruptcy Rule 115(2) requires the bankruptcy court to hold a hearing upon notice prior to dismissal.10
38
As for Appellants' claim that the district court failed to make specific findings as to each factor to be considered in determining whether dismissal is appropriate, that issue was decided by Henderson v. Duncan, (see previous discussion, supra). We find this appeal to be frivolous and grant Appellees' motion for sanctions. Accordingly, we impose the sanction of double costs.
39
AFFIRMED.
*
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34.4
**
The Honorable Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
1
Debtor's Chapter 11 was converted to a Chapter 7 on March 8, 1993
2
The facts of the underlying state case are not relevant for purposes of this appeal
3
Gentra, Inc., as successor-in-interest to Royal Trustco, Limited, has been added as a named appellee
4
Appellants argue that the adversary proceeding is a non-core, related proceeding, and since the non-debtor Appellants never filed a proof of claim in bankruptcy, there was no consent to jurisdiction
5
Claims that arise under or in Title 11 are "core" proceedings, while claims that are related to Title 11 are "non-core" proceedings. In re Harris Pine Mills, 44 F.3d 1431 at 1435. If the proceeding does not involve a substantive right created by the federal bankruptcy law and is one that could exist outside of bankruptcy, it is an 'otherwise related' or non-core proceeding. Id
6
Subsection (b)(2)(O) includes "other proceedings affecting the liquidation of the assets of the estate ..." 28 U.S.C. Sec. 157(b)(2)(O)
7
The relevant portion of Bankruptcy Rule 9027(e)(3) states: "A statement required by this paragraph shall be signed pursuant to Rule 9011 and shall be filed not later than 10 days after the filing of the notice of removal." (emphasis added)
8
Rule 41(b) provides in relevant part:
(b) Involuntary dismissal: Effect Thereof. For failure of the plaintiff to prosecute or comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. F.R.Civ.P. 41(b).
9
In Henderson, supra, the court rejected the plaintiff's contention that his due process rights were violated because he was denied a hearing before his case was dismissed. Plaintiff did not, by motion or at anytime, request a hearing on his motion to vacate order of dismissal and motion to vacate judgment
10
See this court's discussion of due process, supra
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Case: 13-40617 Document: 00512850813 Page: 1 Date Filed: 11/26/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40617
United States Court of Appeals
Fifth Circuit
FILED
November 26, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LUIS PEREZ-BAROCELA,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CR-757-2
Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Luis Perez-Barocela appeals his conviction for conspiring to possess with
intent to distribute more than 1,000 kilograms of marijuana. He also
challenges the calculation of his sentencing range under the Guidelines and
the district court’s dismissal of his motion to continue sentencing. We
AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-40617 Document: 00512850813 Page: 2 Date Filed: 11/26/2014
No. 13-40617
FACTS AND PROCEDURAL BACKGROUND
Luis Perez-Barocela, Raul Peraza-Trejo, and Oscar Quijano were
charged with conspiring to possess with intent to distribute more than 1,000
kilograms of marijuana. Peraza-Trejo and Quijano pled guilty, while Perez-
Barocela proceeded to trial before a jury. The government’s witnesses at trial
included Quijano; co-conspirators Jose Antonio Benitez, Ernesto Cabrera-
Enriquez, and Noe Galindo, Jr., all of whom pled guilty to various drug
offenses; Homeland Security Investigations (“HSI”) agent Charles Lehmann;
and Drug Enforcement Administration (“DEA”) agent David Bishop.
Benitez, Cabrera-Enriquez, and Galindo all testified that they were
commercial truck drivers and that Perez-Barocela had recruited them to
transport loads of marijuana through the Falfurrias checkpoint between
October 2011 and February 2012 in return for payments ranging from $30,000
to $50,000. Each co-conspirator further testified that he was arrested at the
checkpoint when agents discovered in his truck between 1,200 and 2,600
pounds of marijuana belonging to Perez-Barocela and Peraza-Trejo. According
to the testimony, Perez-Barocela and Peraza-Trejo obtained the marijuana,
sometimes led the loading and unloading process, and accompanied the trucks
through the border in a white GMC, blue Nissan Altima, or blue Jeep Liberty.
Cabrera-Enriquez and Galindo both identified Peraza-Trejo as the leader of
the operation. The co-conspirators also provided agents with Perez-Barocela’s
phone number, and Benitez and Galindo identified Perez-Barocela and Peraza-
Trejo in photo arrays.
Quijano, also a truck driver, testified that he did not transport marijuana
across the border but instead loaned his truck to Perez-Barocela and Peraza-
Trejo for this purpose in return for $30,000. He corroborated much of Benitez’s
2
Case: 13-40617 Document: 00512850813 Page: 3 Date Filed: 11/26/2014
No. 13-40617
and Galindo’s testimony, provided agents with Perez-Barocela’s phone
number, and identified Perez-Barocela and Peraza-Trejo in photo arrays.
Agent Lehmann testified that he was working at the Falfurrias
checkpoint when Cabrera-Enriquez was arrested. He participated in Cabrera-
Enriquez’s interview, developed photo arrays to identify the members of the
conspiracy, and tracked down Perez-Barocela’s phone based on the phone
number provided by Cabrera-Enriquez.
Agent Bishop, the case agent, linked the arrests of Benitez, Cabrera-
Enriquez, and Galindo. He testified that Benitez, Quijano, and Perez-Barocela
worked together as truck drivers for Eagle Systems. He also testified that a
white SUV was registered to Perez-Barocela and that Peraza-Trejo rented a
blue Nissan Altima from September 2011 to December 2011. Surveillance
photos taken at the Falfurrias checkpoint confirmed that those vehicles crossed
through the checkpoint in temporal proximity to the trucks transporting the
marijuana. Agent Bishop also linked the co-conspirators’ phone numbers,
testifying that there were 63 calls between Perez-Barocela and Benitez, 160
calls between Perez-Barocela and Cabrera-Enriquez, six calls between Perez-
Barocela and Galindo, and 108 calls between Perez-Barocela and Quijano.
Perez-Barocela and the government stipulated that the trafficked
substance was marijuana and that its net weight exceeded 1,000 kilograms.
The government rested, and Perez-Barocela did not call any witnesses. After
Perez-Barocela unsuccessfully moved for a judgment of acquittal, the jury
returned a guilty verdict.
The pre-sentence report (“PSR”) determined that Perez-Barocela’s total
offense level was 39, which reflected a base offense level of 34, a two-point
enhancement for threatening a witness, and a three-point enhancement for
Perez-Barocela’s role as a manager or supervisor of criminal activity that
3
Case: 13-40617 Document: 00512850813 Page: 4 Date Filed: 11/26/2014
No. 13-40617
involved five or more participants or was otherwise extensive. The PSR
indicated that Perez-Barocela had accrued three criminal history points due to
a 2003 New Jersey conspiracy conviction, placing him in criminal history
category II. Perez-Barocela’s Sentencing Guidelines range was 292 to 365
months imprisonment. Perez-Barocela filed several objections, and in
response, the probation officer filed an amended PSR.
When Perez-Barocela appeared for sentencing, he asked for a
continuance so that he could continue to debrief with the government. The
government responded that Perez-Barocela had already debriefed and that an
additional meeting was unlikely to yield useful information. The court
accepted the government’s argument and proceeded with the sentencing. After
overruling Perez-Barocela’s objections to the PSR and rejecting his request for
a downward departure or variance, the district court sentenced Perez-Barocela
to 292 months in prison and five years of probation. Perez-Barocela timely
appealed to this court.
DISCUSSION
I. Sufficiency of Evidence Supporting Verdict
Perez-Barocela argues that the district court erred in denying his motion
for a judgment of acquittal. We review the denial of a motion for a judgment
of acquittal de novo. United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011).
The jury’s verdict will be affirmed if “any reasonable trier of fact could have
found that the evidence established guilt beyond a reasonable doubt.” United
States v. Ochoa, 667 F.3d 643, 647 (5th Cir. 2012) (citation omitted). “[W]e do
not evaluate the weight of the evidence or the credibility of the witnesses, but
view the evidence in the light most favorable to the verdict, drawing all
reasonable inferences to support the verdict.” Girod, 646 F.3d at 313 (citation
omitted).
4
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No. 13-40617
To establish conspiracy, the government must demonstrate that: (1) an
agreement existed between two or more persons to perform an illegal activity,
(2) the defendant knew of the agreement, and (3) the defendant voluntarily
participated in the activity. See Ochoa, 667 F.3d at 648. Perez-Barocela argues
that both the character of the evidence (circumstantial) and the inferences that
could reasonably be drawn from it were insufficient to support his conviction
for conspiring to possess marijuana with the intent to distribute it.
First, Perez-Barocela contends that the only evidence linking him to the
conspiracy is circumstantial testimony from co-conspirators. Jurors, though,
may “infer any element of [conspiracy] from circumstantial evidence.” United
States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989). More specifically, “[a]s
long as it is not factually insubstantial or incredible, the uncorroborated
testimony of a co-conspirator, even one who has chosen to cooperate with the
government in exchange for non-prosecution or leniency, may be
constitutionally sufficient evidence to convict.” United States v. Westbrook, 119
F.3d 1176, 1190 (5th Cir. 1997) (citation omitted). Consequently, the
government was permitted to rely on the testimony of co-conspirators to link
Perez-Barocela to the conspiracy.
Next, Perez-Barocela argues that the government’s evidence proved, at
most, that his legitimate work in the trucking industry resulted in his
association with criminals. There is little basis for this claim. Testimony from
Perez-Barocela’s co-conspirators and Agents Lehmann and Bishop detailed
Perez-Barocela’s recruitment of co-conspirators to transport marijuana,
accompaniment of shipments across the border, arrangement of transportation
inside the United States, phone conversations with co-conspirators, and
payment of co-conspirators. Viewed in the light most favorable to the verdict,
this evidence was sufficient for a rational trier of fact to find beyond a
5
Case: 13-40617 Document: 00512850813 Page: 6 Date Filed: 11/26/2014
No. 13-40617
reasonable doubt that Perez-Barocela conspired to possess marijuana with the
intent to distribute it.
II. Assessment of Three Criminal History Points for Prior Conviction
Perez-Barocela argues that the district court erred when it increased his
offense level by three points for his New Jersey conspiracy conviction. We
review a district court’s interpretation and application of the Sentencing
Guidelines de novo. United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th
Cir. 2012). The Guidelines instruct district courts to assess three criminal
history points “for each prior sentence of imprisonment exceeding one year and
one month.” U.S.S.G. § 4A1.1(a). If such a sentence is “totally stayed or
suspended,” however, the government should assess only one criminal history
point. §§ 4A1.1(c), 4A1.2(a)(3).
Perez-Barocela, while conceding that his sentence for the New Jersey
conviction exceeded one year and one month, notes that his sentence was
stayed pending appeal and argues that the government was not permitted to
rely on Westlaw’s reproduction of the opinion confirming his sentence to
demonstrate that it was no longer stayed or suspended. 1 He claims the
government was instead required to introduce the judicial record verifying his
affirmed sentence. According to Perez-Barocela, this requirement follows from
the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005).
In Shepard, the Court held that the government may not rely on police reports
and complaint applications to prove that a defendant’s conviction satisfies the
1 Perez-Barocela also argued in his objections to the PSR that, regardless of whether
his sentence was affirmed, the enhancement was unwarranted because he never actually
served his sentence. Perez-Barocela has not briefed this issue on appeal and we therefore
decline to consider it. See Brinkman v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
6
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No. 13-40617
elements of generic burglary, but instead must rely on the charging document,
the plea agreement or transcript related to the plea, or a comparable judicial
record. Id. at 16, 26.
Shepard “does not apply when determining whether the government has
satisfied its burden of proof as to the existence of a prior conviction.” United
States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007). For proof of a
conviction we consider whether the documents relied upon “have sufficient
indicia of reliability to support their probable accuracy . . . .” Id. The
government may rely on uncertified case summaries so long as they are
reliable and the defendant fails to offer contradictory evidence. Id. Here, the
district court appropriately relied on Westlaw’s reproduction of the opinion
affirming Perez-Barocela’s sentence, because it is a reliable reproduction of a
judicial record and Perez-Barocela has offered no evidence undermining its
reliability. Accordingly, the district court did not err in enhancing Perez-
Barocela’s offense level by three points.
III. Three-Point Increase in Offense-Level for Managerial Role in Conspiracy
Perez-Barocela argues that the district court erred when it increased his
offense level by three points for playing a managerial role in the conspiracy.
He alleges that he “was a mere pawn in Raul Peraza-Trejo’s drug trafficking
organization . . . .” We review a district court’s factual findings for sentencing
purposes for clear error. Cantu-Ramirez, 669 F.3d at 628. “District courts
enjoy wide discretion in determining which evidence to consider and to credit
for sentencing purposes.” Id. (citation omitted). Accordingly, clear error will
not be found so long as a factual finding “is plausible in light of the record read
as a whole.” United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir. 1994)
(citation omitted). The defendant bears the burden of proving that the
7
Case: 13-40617 Document: 00512850813 Page: 8 Date Filed: 11/26/2014
No. 13-40617
evidence relied upon by the district court is “materially untrue” and therefore
implausible. Id. at 943.
Under the Sentencing Guidelines, the offense level of a defendant may
be increased by three points if he played a managerial or supervisory role in a
criminal activity but not a leadership or organizational role. § 3B1.1(b). The
commentary to the Guidelines instructs courts to consider the following factors
when distinguishing managers and supervisors from leaders and organizers:
(1) “the exercise of decision making authority,” (2) “the nature of participation
in the commission of the offense,” (3) “the recruitment of accomplices,” (4) “the
claimed right to a larger share of the fruits of the crime,” (5) “the degree of
participation in planning or organizing the offense,” (6) “the nature and scope
of the illegal activity,” and (7) “the degree of control and authority exercised
over others.” § 3B1.1 cmt. n.4. We use these same factors to determine
whether a district court erred in finding that a defendant was a manager or
supervisor. See United States v. Reagan, 725 F.3d 471, 494 (5th Cir. 2013).
Perez-Barocela contends that his recruitment of others to transport
marijuana does not give rise to the conclusion that he was a manager in the
conspiracy to transport marijuana. He further contends that there was no
evidence that he negotiated the amounts or prices of the marijuana or that he
received more money than his co-conspirators. These specific gaps in the
evidence, however, do not undermine what the evidence as a whole plausibly
establishes.
The detailed, consistent testimony from Perez-Barocela’s co-
conspirators, as corroborated and substantiated by Agents Lehmann and
Bishop, demonstrated that Perez-Barocela: (1) recruited Benitez, Cabrera-
Enriquez, and Galindo to drive trucks through the Falfurrias checkpoint
carrying marijuana hidden amongst legitimate cargo in exchange for cash
8
Case: 13-40617 Document: 00512850813 Page: 9 Date Filed: 11/26/2014
No. 13-40617
payments; (2) escorted the trucks across the checkpoint; (3) arranged for the
marijuana to be offloaded onto trailers and hidden amongst legitimate cargo;
and (4) made over three hundred phone calls to Benitez, Cabrera-Enriquez,
Galindo, and Quijano to coordinate these operations.
Upon this evidence, the district court could plausibly conclude not only
that Perez-Barocela recruited accomplices, as he claims, but that he exercised
decision-making authority, participated heavily in the transportation of the
marijuana, planned and organized the transportation, and exercised control
over his co-conspirators. In other words, the court could plausibly find that no
fewer than six out of the seven factors mentioned in the Guidelines mitigated
in favor of finding that Perez-Barocela played a managerial or supervisory role
in the criminal activity. Accordingly, the district court did not clearly err in
assessing the three-point enhancement.
IV. Two-Point Increase in Offense Level for Witness Intimidation
Perez-Barocela contends that the district court erred when it increased
his offense level by two points for threatening a witness. Our review is for
clear error. Cantu-Ramirez, 669 F.3d at 628. We also consider that a district
court “can adopt facts contained in a PSR without inquiry if those facts had an
adequate evidentiary basis and the defendant does not present rebuttal
evidence.” Puig-Infante, 19 F.3d at 943 (citation omitted).
Under the Sentencing Guidelines, the offense level of a defendant who
played an aggravating role in a criminal activity may be increased by two
points for witness intimidation or obstruction of justice. § 2D1.1(b)(15)(D).
Perez-Barocela contends that the testimony and information contained in the
PSR were insufficient to demonstrate that he threatened the witness Quijano.
He did not, though, provide rebuttal evidence in support of his claim and
9
Case: 13-40617 Document: 00512850813 Page: 10 Date Filed: 11/26/2014
No. 13-40617
therefore cannot meet his burden of demonstrating that the evidence relied
upon was materially untrue and implausible.
Furthermore, there is no basis upon which to conclude that the district
court exercised its discretion improperly. Quijano testified that, during March
2013, while he and Perez-Barocela were incarcerated in the Karnes City
Corrections Center pending trial, Perez-Barocela threatened to harm him and
his family if he cooperated with the government. He further testified that he
called his wife and asked her to inform his lawyer of these threats, and that he
was transferred to a different facility three weeks later. The PSR notes that
recorded phone conversations between Perez-Barocela and Quijano
corroborate Quijano’s testimony and that Perez-Barocela had attempted to
persuade Quijano to sign paperwork indicating that he was not involved in the
conspiracy. In addition, the government offered to provide, if necessary,
testimony from a DEA agent and recorded phone conversations corroborating
the then-existing evidence. Taken together, this evidence could certainly
support a finding that Perez-Barocela threatened Quijano. Accordingly, the
district court did not clearly err in levying the two-point enhancement.
V. Rejection of Motion to Continue Sentencing
Perez-Barocela advances two related arguments regarding the district
court’s rejection of his motion to continue sentencing. First, he claims that the
court violated the Federal Rules of Criminal Procedure by failing to explicitly
rule on his motion or find that such a ruling was unnecessary. Second, he
claims that the court plainly erred in failing to grant his motion.
a. Failure to Rule Explicitly on Motion
The district court’s compliance with the Federal Rules of Criminal
Procedure is a question of law subject to de novo review. See United States v.
10
Case: 13-40617 Document: 00512850813 Page: 11 Date Filed: 11/26/2014
No. 13-40617
Medina, 161 F.3d 867, 874 (5th Cir. 1998). Under Rule 32(i)(3)(B), a court
“must – for any disputed portion of the presentence report or other
controverted matter – rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because
the court will not consider the matter in sentencing . . . .” FED. R. CRIM. P.
32(i)(3)(B). Perez-Barocela claims that the district court failed to rule on his
motion for continuance.
We start by noting that a motion for continuance, even if its grounds are
that sentencing should be delayed, is not clearly encompassed within the just-
quoted subpart of Rule 32. Further, both parties spoke at length regarding the
motion for continuance, and the judge posed numerous questions. The court
then held there was not “any reason to pursue” additional debriefing,
confirmed that the government did not wish to do so, and determined to “go
ahead with sentencing.” These comments clearly though implicitly denied
Perez-Barocela’s motion. Moreover, the court adopted the PSR and imposed a
sentence within the range it prescribed, actions which were entirely
inconsistent with Perez-Barocela’s motion for continuance. Denials of motions
that are implicit in the rulings of a district judge are valid. United States v.
Aggarwal, 17 F.3d 737, 745 (5th Cir. 1994).
Regardless of the general acceptability of implicit rulings, Perez-
Barocela construes Rule 32(i)(3)(B) as requiring a court to state explicitly its
denial of a motion or determination that a ruling is unnecessary. As noted,
Rule 32(i)(3)(B) does not, by its terms, clearly apply to a motion for continuance
during sentencing. It also does not require an explicit statement from the
court. Indeed, we have suggested that an implicit rejection may suffice. For
example, we have held that the imposition of a Guidelines sentence implicitly
11
Case: 13-40617 Document: 00512850813 Page: 12 Date Filed: 11/26/2014
No. 13-40617
denied a request for a downward departure. See United States v. Hernandez,
457 F.3d 416, 424 (5th Cir. 2006).
The district court’s comments, adoption of the PSR, and imposition of a
sentence falling within the Guidelines range prescribed by the PSR constituted
an implicit and sufficient of the motion for continuance.
b. Failure to Grant Motion
If a claim of error is raised for the first time on appeal, review is for plain
error. Puckett v. United States, 556 U.S. 129, 135 (2009). To demonstrate plain
error, an appellant must prove that an error: (1) occurred; (2) was plain; (3)
affects substantial rights; and (4) “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (quoting United States v. Olano,
507 U.S. 725, 736 (1993)).
Perez-Barocela argues that the district court plainly erred in rejecting
his motion to continue his sentencing. He asserts that the court should have
granted the motion because, had he debriefed with the government, the
government might have filed a U.S.S.G. § 5K1.1 motion, which, if granted,
would have decreased his sentencing range.
Rule 32(i)(3)(B) does not, by its terms, require a judge to grant a motion
for a continuance when there is any possibility that doing so might cause the
government to file a motion that, if granted, would reduce the defendant’s
sentence. In fact, since this possibility always exists, such a construction would
render every denied motion for a continuance plainly erroneous. Perhaps for
this reason, Perez-Barocela can cite no case supporting his interpretation.
Accordingly, there are no grounds upon which to find that the district court’s
denial of Perez-Barocela’s motion was error, let alone plain error.
Additionally, under the third prong of plain error analysis, an error
“must have affected the outcome of the district court proceedings.” Olano, 507
12
Case: 13-40617 Document: 00512850813 Page: 13 Date Filed: 11/26/2014
No. 13-40617
U.S. at 734. Perez-Barocela, however, cannot demonstrate that he would have
received a lower sentence if the court had granted his motion, because he has
put forth no evidence suggesting that the government would have filed a
Section 5K1.1 motion after debriefing. In fact, the existing evidence suggests
the opposite. After conducting one debriefing with Perez-Barocela and
determining that he had not been truthful, accepted responsibility for his
actions, or provided useful information, the government determined that a
second debriefing would be useless. The government did not file a Section
5K1.1 motion after the first debriefing, and the evidence suggests that it would
not have done so after a second debriefing.
Because we determine that no plain error affecting substantial rights
occurred, the final factor of the plain-error analysis is inapplicable.
The district court did not plainly err by denying Perez-Barocela’s motion
for a continuance.
AFFIRMED.
13
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220 F.2d 555
Era Alta MELTON, Appellant,v.UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation, Appellee.
No. 4990.
United States Court of Appeals, Tenth Circuit.
March 16, 1955.
1
B. H. Carey, Oklahoma City, Okl., for appellant.
2
Edgar Fenton and Elliott C. Fenton, Oklahoma City, Okl., for appellee.
3
Before PHILLIPS, Chief Judge, MURRAH, Circuit Judge, and SAVAGE, District Judge.
4
SAVAGE, District Judge.
5
This is an appeal by Era Alta Melton, plaintiff below, from a judgment of the United States District Court for the Western District of Oklahoma dismissing without prejudice her complaint whereby she sought to recover benefits under a Workmen's Compensation and Employers' Liability Policy issued by United States Fidelity and Guaranty Company, defendant below, to Bishop's Restaurant, Inc. While in the course of, and arising out of her employment as a hostess by Bishop's, plaintiff sustained an accidental personal injury which, she states, caused her to be totally and permanently disabled. Such employment is not defined as hazardous and accordingly is not covered by the Oklahoma Workmen's Compensation Law. 85 O.S.A. § 2; Rolen v. Callicut, 204 Okl. 250, 228 P.2d 1010.
6
Although under no statutory compulsion, Bishop's obtained from the defendant a Workmen's Compensation and Employers' Liability policy of insurance, whereunder it agreed:
7
"One (a) To Pay Promptly to any person entitled thereto, under the Workmen's Compensation Law, and in the manner therein provided, the entire amount of any sum due * * *.
8
"D. The obligations of Paragraph One (a) foregoing are hereby declared to be the direct obligations and promises of the Company to any injured employee covered hereby * * * and to each such employee * * * the Company is hereby made directly and primarily liable under said obligations and promises. This Contract is made for the benefit of such employees * * *."
9
Attached to the policy is an Oklahoma State Compensation Endorsement which provides:
10
"7. The Company's liability to any employee of this Employer shall be no greater than the liability of this Employer to said employee, and in the event any claim or proceeding is brought against the Company alone, or jointly with this Employer, the Company shall be entitled to the same defenses and shall have no greater liability than this Employer would have if such claim or proceeding had been brought against this Employer alone, anything in the Policy to the contrary notwithstanding."
11
In 1947 the Oklahoma legislature supplemented the Oklahoma Workmen's Compensation Act by the enactment of what is commonly referred to as the "Estoppel Act". 85 O.S.A. §§ 65.2 to 65.4. Sections 65.2 and 65.3 thereof provide:
12
"65.2. Every employer and every insurance carrier who schedules any employee as a person employed by the employer for the purpose of paying or collecting insurance premiums on a Workmen's Compensation insurance policy or who pays, receives or collects any premiums upon any insurance policy covering the liability of such employer under the Workmen's Compensation Law by reason of or upon the basis of the employment of any such employee shall be estopped to deny that such employee was employed by the employer in a hazardous employment subject to and covered by the Workmen's Compensation Law if such person receives an accidental personal injury arising out of and in the course of his employment, during the period for which such premium was so received, regardless of the type of business in which the employer was engaged or the type of employment in which the employee was engaged at the time of such injury."
13
"65.3. Every contract of insurance issued by an insurance carrier for the purpose of insuring an employer against liability under the Workmen's Compensation Law shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are paid, collected, or whose employment is considered or used in determination of the amount of premium collected upon such policy for the payment of benefits as provided by Workmen's Compensation Law regardless of the type of business in which the employer of such person is engaged or the type of work being performed by the employee at the time of any injury received by such employee arising out of and in the course of his employment, which contract may be enforced by such employee as the beneficiary thereof, before the State Industrial Commission as now provided by law."
14
The plaintiff's employment was scheduled and considered in determining the amount of premium to be paid on the policy. The policy admittedly was for the benefit of any employee whose wages were included in computing the premiums, even if such employee was not engaged in a hazardous occupation, but the restrictive provision contained in paragraph 7 of the endorsement attached to the policy provided that the liability of the insurer to the employee should be no greater than the liability of the employer to the employee.
15
Our decision must turn upon an interpretation of the "Estoppel Act" and, in that connection it is essential that consideration be given to the decisions of the Supreme Court of Oklahoma which constitute the background for its enactment.
16
In Maryland Casualty Company v. Whitt, 167 Okl. 261, 29 P.2d 65, the Supreme Court of Oklahoma held that an injured policeman employed by the City of Altus, who received an accidental injury arising out of his employment and whose salary had been included in calculating the premiums to be paid under a Workmen's Compensation policy procured by the City from Maryland Casualty Company, could recover in an action brought against the insurer in the district court, notwithstanding the fact that his employment was not covered by the compensation act. It was further held that the State Industrial Commission did not have jurisdiction and that the action was properly brought in the district court. This decision was based primarily upon a course of conduct disclosing that the parties had interpreted the contract to require the insurance carrier to pay injured employees not covered by the compensation act in conformity with the schedule of benefits to covered employees provided by the act.
17
The next case of interest was Fidelity & Casualty Company of New York v. Gray, 181 Okl. 12, 72 P.2d 341, in which the court made it quite clear that its construction of the insurance contract in the Whitt case resulted from application of the rule that where a contract is ambiguous the court will adopt a construction which the parties themselves have placed upon the contract. It was there held that an employee covered by the compensation act could not recover in an action brought on the policy in the state district court for disability traceable to a non-accidental cause.
18
In Continental Casualty Company v. Wear, 185 Okl. 245, 91 P.2d 91, the court for the first time considered the effect of an endorsement attached to a standard compensation policy which was identical with the endorsement with which we are concerned here. The court held that the injured employee whose wages had been taken into account in the collection of premiums but whose employment was not covered by the compensation act could not recover in an action brought on the policy in the district court because, by reason of the restrictive clause in the endorsement, the employer was not legally liable for such injury.
19
Thus we see that under the Oklahoma law at the time of the adoption of the "Estoppel Act" an employee injured in the course of his employment in a nonhazardous occupation, whose wages had been included in the payment of premiums on a workmen's compensation policy, had no remedy. He could not prosecute an action before the State Industrial Commission because its jurisdiction was limited to accidental injuries sustained in the course of an employment covered by the compensation act. He could not recover in a third party beneficiary action brought in a common law court because of the contractual provision making the insurer's liability coincide with that of the employer. Of course, the employee had his remedy ex delicto against the employer based on negligence. But we deal here only with his rights and remedies under a workmen's compensation policy.
20
The plaintiff asserts that the policy sued on was executed for her benefit; that she may institute an action on the policy as a third party beneficiary in a common law court; that the district court had jurisdiction of the subject matter; and pointing only to Section 65.3 of the "Estoppel Act", she claims that the restrictive endorsement attached to the policy is thereby nullified, thus allowing recovery. In addition, she asserts that a recovery in this action against the insurance carrier on the policy would not preclude an action in tort against her employer.
21
The defendant admits that the policy was issued for the benefit of the plaintiff and further admits that she is entitled to recover benefits as provided in the compensation act. But it contends that, if the plaintiff elects to receive benefits under the workmen's compensation feature of the policy, the exclusive jurisdiction is vested by Sections 65.2 and 65.3 of the "Estoppel Act" in the State Industrial Commission. It further contends that the payment of such benefits would bar an action in tort by the plaintiff against her employer to recover damages for the same injury.
22
Section 65.3 does not purport to nullify the restrictive endorsement. This section only provides that: (1) the contract of insurance shall be conclusively presumed to be for the benefit of every person whose employment is considered in fixing the amount of premiums collected regardless of the type of business in which the employer is engaged or the type of work performed by the employee at the time of injury; and (2) the contract may be enforced by the employee before the State Industrial Commission as provided by law. The foregoing statutory mandate that the insurance contract should be conclusively presumed to be for the benefit of the employee is entirely consistent with the provisions incorporated in the standard workmen's compensation policy for years. We find no language therein suggesting the imposition of liability on the insurance carrier when the employer is not liable to the employee.
23
Section 65.2 of the "Estoppel Act" must be considered in connection with Section 65.3 in determining the rights of the parties. It is clear that Section 65.2 affords a remedy to the employee by providing that both the employer and the insurance carrier shall be estopped to deny that an employee scheduled for the purpose of computing premiums was employed in a hazardous employment covered by the Workmen's Compensation Act. The effect of this section is to extend the coverage of the compensation act and to allow employees not theretofore covered to elect to receive benefits as provided in such act. It should not be overlooked that Section 65.2 does not purport to impose any liability on the insurance carrier that is not imposed upon the employer.
24
The only remedy given to an employee, scheduled for the purpose of computing premiums, by the "Estoppel Act" which was not previously available to him is to confer jurisdiction upon the State Industrial Commission of actions against the employer or insurance carrier, and to estop both the employer and the insurance carrier to deny that the employee was engaged in work covered by the Workmen's Compensation Act at the time of the injury. This construction is indicated by National Bank of Tulsa Building v. Goldsmith, 204 Okl. 45, 226 P.2d 916, 923, wherein it was said that by such Act:
25
"* * * the Legislature has established a rule of law to the effect that in the case specified an employment is not subject to the Workmen's Compensation Law, but has left to the injured employee the choice of whether to accept or reject the provisions of the Act."
26
The purpose of the "Estoppel Act" was to make a remedy available to a remediless employee. It does not have the effect of depriving the insurance carrier of the defense made clear and unambiguous by the endorsement providing that its liability under the policy to an employee shall not exceed that of the employer. The employee is given a forum with jurisdiction to enforce benefits under the compensation act, even though he was not engaged in a hazardous occupation covered by the compensation act. This is not an additional forum, as contended by plaintiff, but is the forum given exclusive jurisdiction to enforce benefits under the Workmen's Compensation Act.
27
The District Court has jurisdiction to adjudicate rights asserted under a contract made for the benefit of a third party, if the enforcement of the benefits sought under such contract is not vested exclusively in another tribunal. By her complaint, the plaintiff, as third party beneficiary under the insurance contract, seeks to recover from her employer's insurer alone benefits granted to her by the Oklahoma Workmen's Compensation Act. For such benefits the "Estoppel Act" imposes liability upon her employer, but the enforcement of such benefits is vested exclusively within the State Industrial Commission, and cannot be enforced against the employer in the district court. Since the restrictive endorsement attached to the policy provides that the insurer shall be entitled to the same defenses and shall have no greater liability than the employer, the plaintiff cannot maintain her action against the insurer in the district court.
28
The motion to dismiss was, therefore, properly sustained and the order of the district court is affirmed.
| {
"pile_set_name": "FreeLaw"
} |
244 F.Supp.2d 1130 (2002)
RACCOON RECOVERY, LLC, as assignee and successor in interest, Plaintiff,
v.
NAVOI MINING AND METALLURGICAL KOMBINAT, Defendant.
No. 02-M-139.
United States District Court, D. Colorado.
September 18, 2002.
*1133 Ernest E. Staggs, Jr., Denver, CO, for plaintiff.
Steven E. Abelman, Cage, Williams, Abelman & Layden, P.C., Denver, CO, Francis A. Vasquez, White & Case, LLP, Washington, DC, for defendant.
*1134 ORDER OF DISMISSAL FOR LACK OF JURISDICTION
MATSCH, District Judge.
This is an Application for Charging Order which was referred to Magistrate Judge Craig B. Shaffer who filed a recommendation on August 14, 2002. The plaintiff Raccoon Recovery, LLC, filed objections to that recommendation on August 26, 2002. The magistrate judge made findings and conclusions based on an extensive record and a full opportunity for the plaintiff to submit support for its contentions. The recommendation is for dismissal for lack of subject matter jurisdiction. The plaintiff in its objections has submitted additional material which was not before the magistrate judge. This court will not consider that material and restricts its review to the record submitted to the magistrate judge. Based on that record, the court adopts the findings of fact and conclusions of law of Magistrate Judge Shaffer and upon that basis, it is
ORDERED that the motion for discovery is denied and the Application for Charging Order is denied and this civil proceeding is dismissed for lack of jurisdiction.
RECOMMENDATION ON PLAINTIFF'S APPLICATION FOR CHARGING ORDER and REQUEST FOR DISCOVERY
SHAFFER, United States Magistrate Judge.
THIS MATTER comes before the court on Plaintiff Raccoon Recovery LLC's ("Raccoon") Citation of Authority, Application for Charging Order, and Request for Discovery, filed on February 12, 2002, and Defendant Navoi Mining and Metallurgical Kombinat's ("Navoi") Opposition to Application for Charging Order, filed May 24, 2002. On February 14, 2002, pursuant to an Order of Reference to Magistrate Judge, this action was referred to Magistrate Judge Boland for a hearing of the evidence and a recommendation for order regarding Raccoon's application for charging order and request for discovery. Following Magistrate Judge Boland's Order of Recusal, dated March 13, 2002, the case was reassigned to Magistrate Judge Shaffer. The court held a hearing on Raccoon's Application and Navoi's Opposition on June 11, 2002. For the following reasons, the court recommends that Raccoon's Application for Charging Order and Request for Discovery be denied.
FACTUAL BACKGROUND
The following facts are taken from the allegations in Raccoon's Application and attached exhibits which, for the purposes of this motion, will be taken as true. At some time prior to 1994, Nuexco Exchange, AG and Global Nuclear Services and Supply, Ltd. purchased and took delivery of uranium concentrates from Navoi for the benefit of CSI Enterprises, Inc ("CSI"), an entity apparently affiliated with Oren Benton. On or about August 23,1994, Navoi advised CSI that if it failed to pay the outstanding balance of $1,784,977.80, Navoi would initiate legal proceedings to collect that debt. Although CSI made a partial payment, in October 1994, CSI, Oren Benton and other entities (collectively the "Benton defendants") executed a settlement agreement and confession of judgment in favor of Navoi. As a result of CSI's failure to comply with the payment schedule mandated by the settlement agreement, Navoi filed the confession of judgment in the District Court for the City and County of Denver, in Case Number 94CV6122 (hereinafter "the Denver action"). On December 12, 1994, judgment was entered against the Benton defendants named by Navoi. On December 20, 1994, Navoi received a final payment on behalf of CSI. See Exhibit B attached *1135 to Raccoon's Application for Charging Order.
On February 23, 1995, Benton, CSI and other related entities filed cases under Chapter 11 of the United States Bankruptcy Code. Id. In conjunction with that bankruptcy, an action for avoidance and recovery of preferential and fraudulent transfers was initiated against Navoi on February 21, 1997, in Official Joint Creditors' Committee of CSI Enterprises, Inc., et al. v. Navoi Mining and Metallurgical Kombinat, Adversary Proceeding No. 97-1131-SBB (hereinafter "the Adversary Proceeding"). On June 3, 1997, a judgment, in the amount of $1,794,877.89 was entered against Navoi in the Adversary Proceeding, based upon a finding that Navoi was in default. See Exhibit A attached to Raccoon's Application for Charging Order. Raccoon Recovery, LLC is a Colorado limited liability company and an assignee and successor in interest to the judgment against Navoi in the Adversary Proceeding. In June 2001, Raccoon filed in the District Court for the City and County of Denver a Motion for Order Charging Individual Interest of Navoi in an alleged joint venture involving Navoi and Newmont Mining Corporation (hereinafter the "Zarafshan-Newmont joint venture"). Raccoon contends that Navoi and Newmont each hold a 50% interest in Zarafshan-Newmont, which is a heap-leach gold recovery operation in the Republic of Uzbekistan.
On January 23, 2002, Navoi removed the action to the United States District Court pursuant to 28 U.S.C. § 1441. In its notice of removal, Navoi stated that Raccoon failed to effect service upon Navoi in accordance with the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq. Navoi further asserted that it is "wholly-owned by the Government of Uzbekistan and an instrumentality of the Government of Uzbekistan ... and therefore, is entitled to foreign sovereign immunity under the Foreign Sovereign Immunities Act."
ANALYSIS
On May 28, 2002, Navoi filed its Opposition to Raccoon's Application for Charging Order. Although Navoi filed a brief in "opposition," it seeks to dismiss the action "forthwith under Federal Rule of Civil Procedure 12(h)(3)." In its Opposition, Navoi raises the following arguments: (1) that Navoi is a foreign state entitled to sovereign immunity under the FSIA; (2) that Raccoon failed to comply with the service requirements imposed under 28 U.S.C. § 1608, both in connection with the default judgment entered in the Adversary Proceeding and the Application filed in this action; and (3) that the assets that Raccoon seeks to encumber are immune from attachment under the FSIA.
On July 1, 2002, this court entered an Order in this action. That Order identified the issues raised by Navoi in its Opposition and acknowledged the burden shifting procedure applicable to resolving the immunity issue under the FSIA. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.1994). This court concluded that Raccoon should be afforded an opportunity to file a supplemental brief responding to the legal arguments raised in Navoi's Opposition and addressing Raccoon's prima' facie burden under the FSIA. This court also permitted Raccoon to address Navoi's arguments regarding defective service under § 1608 and the subject assets' immunity from attachment.
On July 15, 2002, Raccoon filed a Supplemental Brief in Support of Motion and Application for Charging Order. Having reviewed Raccoon's Application and Navoi's Surreply, and the exhibits attached to the parties' papers, and considered the arguments made by the parties during the *1136 hearing on June 11, 2002, the court concludes that further oral argument would not assist its analysis.
A. Standard of Review
Rule 12(h)(3) provides that the district court shall dismiss a pending action "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter." Fed.R.Civ.P. 12(h)(3). See, e.g., St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.) (treating motion raising ripeness issue as motion to dismiss for lack of subject matter jurisdiction), cert, denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989). See also Cook v. City of Pomona, 884 F.Supp. 1457, 1461 (C.D.Cal.), affd, 70 F.3d 1277, 1995 WL 703711 (9th Cir.1995); Bradford National Life Insurance Co. v. Union State Bank, 794 F.Supp. 296, 297 (E.D.Wis.1992). Normally, a district court should first resolve doubts regarding its subject matter jurisdiction before proceeding to the merits of the litigation. See Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). A court lacking jurisdiction must dismiss the litigation at any point in the proceedings in which it becomes apparent that jurisdiction is lacking. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert, denied, 516 U.S. 863, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995). See also Neiberger v. Hawkins, 150 F.Supp.2d 1118, 1120 (D.Colo.2001) ("a motion to dismiss based on sovereign immunity is treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)").
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss may be granted if the court does not have subject matter jurisdiction over the matter. The determination of subject matter jurisdiction is a threshold question of law. Madsen v. United States ex. rel. United States Army Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir.1987). As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them authority to hear. See U.S. Const. Art. Ill, § 2; Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir.1994), cert, denied, 514 U.S. 1109, 115 S.Ct. 1960, 131 L.Ed.2d 852 (1995). The court applies a rigorous standard of review when presented with a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Consumers Gas & Oil, Inc. v. Farmland Indus. Inc., 815 F.Supp. 1403, 1408 (D.Colo.1992). "[T]he party invoking federal jurisdiction bears the burden of proof." Marcus v. Kansas Dept. of Revenue, 170 F.3d 1305, 1309 (10th Cir.1999).
"Motions to dismiss pursuant to Rule 12(b)(1) may take two forms." Amoco Production Co. v. Aspen Group, 8 F.Supp.2d 1249, 1251 (D.Colo.1998). First, a party may attack the facial sufficiency of the complaint and the court must accept the allegations of the complaint as true. Id. Second, a party may attack the factual assertions regarding subject matter jurisdiction through affidavits and other documents and the court "has wide discretion to allow affidavits, other documents and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). Navoi's Opposition challenges the factual assertions underlying Raccoon's Application for Charging Order.
B. Raccoon's Prima Facie Burden
Under the FSIA, a federal court lacks subject-matter jurisdiction over a claim against a foreign state, unless a specific statutory exception applies. Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 *1137 S.Ct. 1471, 123 L.Ed.2d 47 (1993).[1]See also United World Trade, Inc. v. Mangyshlakneft Oil Production Association, 33 F.3d 1232, 1236 (10th Cir.1994) ("the Foreign Sovereign Immunities Act `provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country' ") (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989)), cert, denied, 513 U.S. 1112, 115 S.Ct. 904, 130 L.Ed.2d 787 (1995). Those exceptions provide, inter alia, for subject matter jurisdiction over the foreign state or agency or instrumentality of the foreign state where there has been an express or implied waiver of immunity or in any case ... in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. See 28 U.S.C. § 1605(a)(1) and (2). "A commercial activity may be `either a regular course of commercial conduct or a particular commercial transaction or act.'" Saudi Arabia v. Nelson, 507 U.S. at 356, 113 S.Ct. 1471.
Navoi argues that as an "agency or instrumentality of a foreign state," it is immune from suit under the FSIA. Navoi bears the initial burden of coming forward with some evidence to establish that it qualifies as a "foreign state" under the FSIA. See Mann v. Hanil Bank, 900 F.Supp. 1077, 1084-85 (E.D.Wis.1995) (noting that under the FSIA, a foreign state is "presumptively immune from the jurisdiction of United States courts"). Once a prima facie showing of immunity has been made, the plaintiff seeking to litigate in the district court bears the burden of coming forward with facts showing that an exception applies. Moran, 27 F.3d at 172.
In its Supplemental Brief, Raccoon argues that Navoi has not come forward with sufficient evidence to make a prima facie showing that it is a foreign state entitled to immunity. This court disagrees. See Fagot Rodriguez v. Republic of Costa Rica, 139 F.Supp.2d 173, 186-87 (D.P.R. 2001) ("Under the FSIA, foreign states and their instrumentalities are presumed immune from the jurisdiction of the Courts of the United States unless a specified * 187 exception applies") (citing Saudi Arabia v. Nelson, 507 U.S. at 355, 113 S.Ct. 1471), aff'd, 297 F.3d 1 (1st Cir.2002). Navoi has proffered two declarations by Nickolay Kuchersky, Chairman of the State-Owned Concern for Rare Metals and Gold (the "Kyzylkumredmetzoloto Concern") and Director of Navoi Mining and Metallurgical Kombinat. Navoi also has submitted the 1992 and 1993 Charters of the Navoi Mining and Metallurgical Kombinat, which characterize the company as a "state-owned republican enterprise established on the state-owned property of the Republic of Uzbekistan." Director Kuchersky states that he was appointed in accordance with procedures established by the Cabinet of Ministers of the Republic of Uzbekistan. See Declaration of Nickolay *1138 Kuchersky at ¶7. According to Kuchersky, Navoi is wholly-owned by the Republic of Uzbekistan. Id. at ¶4. See also Supplemental Declaration of Nickolay Kuchersky at ¶¶5 and 11. Although originally formed by the Soviet Union in 1958, Navoi was transferred to the jurisdiction and ownership of the Uzbek Government by decree promulgated by the Cabinet of Ministers of the Republic of Uzbekistan in 1992. Id. at ¶10. Navoi is the only entity in Uzbekistan that controls all aspects of uranium production, storage and exploration in Uzbekistan. Id. In light of the declarations and exhibits submitted in support of Navoi's Opposition, the court concludes that Navoi has made a prima facie showing that it is an "agency or instrumentality of a foreign state" and governed by the FSIA.
The only exhibit attached to Raccoon's Supplemental Brief is the "Complaint for Avoidance and Recovery of Preferential and Fraudulent Transfers" filed in the Adversary Proceeding, which describes Navoi as "a legal entity organized under the laws of Uzbekistan." That single statement does not contradict the representations made in the Kuchersky declarations. This same exhibit was attached to Raccoon's initial Application for Charging Order. Notably, Raccoon has filed in court proceedings a copy of an interview Director Kuchersky gave on November 17, 2000. In that interview, Mr. Kuchersky states that "from the first days of [Uzbekistan's] independent, our combinat was reformed into a state company ... of the Republic of Uzbekistan." Other court filings by Raccoon have relied on internet publications prepared by Newmont Mining, which describe Zarafshan-Newmont as a "joint venture between Newmont Gold and two entities of the Republic of Uzbekistanthe State Committee on Geology and Mineral Resources and Navoi Mining and Metallurgical Combinant." The same materials characterize Navoi as a "governmental entity. " Raccoon's own exhibits support Navoi's claim of foreign sovereign immunity.
Raccoon's Supplemental Brief argues that Navoi is not entitled to foreign sovereign immunity because it was originally created in 1958 as an entity wholly owned by the Soviet Union's Ministry of Medium Machine Building. Raccoon relies on that portion of § 1603(b) which states that "agency or instrumentality of a foreign state" does not include an entity created under the laws of a third country. Raccoon's argument is without merit. Navoi has presented credible evidence showing that in 1992, following the collapse of the Soviet Union and Republic of Uzbekistan's declaration of independence, ownership and control of Navoi passed to the Uzbek Government by decree of the Cabinet of Ministers. At all times relevant to the instant litigation, Navoi was an Uzbek entity created by the Uzbek Cabinet of Ministers under the laws of the Republic of Uzbekistan. See Gould v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450 (6th Cir.1988) (holding that for purpose of the FSIA, a foreign entity's status is determined based upon the jurisdictional facts existing at the time the act complained of occurred).
Finally, Raccoon challenges Navoi's prima facie showing by citing purported errors in the translation of the Kuchersky declarations and the lack of any independent attestation as to the authenticity of documents tendered by Navoi. The court notes that in both of his declarations, Director Kuchersky states that he has knowledge of Navoi's legal status, as well of Navoi's history and structure. Both declarations were made under penalty of perjury. Compare Perez v. Alcoa Fujikura, Ltd., 969 F.Supp. 991, 997 (W.D.Tex.1997) (under Fed.R.Civ.P. 56(e), affidavits must be made on personal knowledge, set forth facts as would be *1139 admissible at evidence, and affirmatively show affiant is competent to testify as to the matters stated therein); Burnett v. Stagner Hotel Courts, Inc., 821 F.Supp. 678, 683 (N.D.Ga.1993) (for purposes of motion under Fed.R.Civ.P. 56, court may consider document that is authenticated by and attached to affidavit, and affiant must be person through whom the exhibits could be admitted into evidence), aff'd, 42 F.3d 645 (11th Cir.1994). Kuchersky also declares, under penalty of perjury, that he has attached "true and correct copies of business and governmental records relating to Navoi. Translations of the Kuchersky declarations and other attached documents were provided by Alexander Ahmedov, Counsel at the Embassy of the Republic of Uzbekistan. The exhibits and declarations submitted by Navoi are properly before the court and establish Navoi's prima facie case. Cf. Kelly v. Syria Shell Petroleum. Development B.V., 213 F.3d 841, 847-49 (5th Cir.) (holding that affidavits and exhibits submitted by defendant made prima facie showing that entity was organ of foreign state), cert, denied, 531 U.S. 979, 121 S.Ct. 426, 148 L.Ed.2d 435 (2000).
Given Navoi's prima facie showing of immunity, Raccoon bears the burden of coming forward with facts showing that an exception under the FSIA applies. See Southway v. Central Bank of Nigeria, 994 F.Supp. 1299, 1305 (D.Colo.1998) (burden of establishing subject matter jurisdiction falls on the party asserting jurisdiction); Mendenhall v. Saudi Aramco, 991 F.Supp. 856, 858 (S.D.Tex. 1998) (burden of proof shifts to plaintiff to identify the exceptions to immunity upon which he relies and to present some facts that show such an exception exists). Raccoon argues that the present actions falls within the statutory exceptions for waiver and commercial activity.
Raccoon's Supplemental Brief cites the FSIA's waiver exception which provides that "a foreign state shall not be immune from the jurisdiction of the courts of the United States ... in any case ... in which the foreign state has waived its immunity either explicitly or by implication." 28 U.S.C. § 1605(a)(1). In support of its waiver claim, Raccoon argues that Navoi has availed itself of the courts of the State of Colorado by initiating the Denver action and "is realizing immense profits from its joint venture with Newmont and taking advantage of Newmont's knowledge and standing in the United States of America." These facts, even if accepted as true, do not support a claim of implied waiver. Courts have narrowly construed the waiver exception under the FSIA. See e.g., Drexel Burnham Lambert Group, Inc. v. Committee of Receivers, 12 F.3d 317, 325 (2d Cir.1993), cert, denied, 511 U.S. 1069, 114 S.Ct. 1644, 1645, 128 L.Ed.2d 365 (1994); Cargill International S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1017 (2d Cir.1993); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C.Cir.1990); Frolova v. USSR, 761 F.2d 370, 377 (7th Cir.1985). Even if the court were inclined to find an implied waiver as to the 1994 litigation initiated against the Benton defendants, a request to extend such a waiver to third parties, as in this case, should be rejected "absent strong evidence of the sovereign's intent." Cargill, 991 F.2d at 1017. In this case, Raccoon has not presented any evidence from which the court could find an implied waiver extended to Raccoon. Cf. Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017-18 (2d Cir.1991) (refusing to find an implied waiver based upon suit brought by foreign sovereign in United States court); Cabiri v. Government of the Republic of Ghana, 981 F.Supp. 129, 133-34 (E.D.N.Y. 1997) (finding no implied waiver where *1140 litigation initiated by foreign state involved real dispute that required state court resolution), rev'd in part on other grounds, 165 F.3d 193 (2d Cir.1999). This court will also not find an implied waiver merely because Navoi may have had previous business dealings with United States companies. Compare Mendenhall, 991 F.Supp. at 858 (foreign state's extensive business dealings in United States do not implicitly waive sovereign immunity).
As an alternative basis for this court's exercise of subject matter jurisdiction, Raccoon invokes FSIA's exceptions for commercial activities. See 28 U.S.C. § 1605(a)(2). A foreign state is not immune from the jurisdiction of United States' courts in any case where the pending litigation is based upon
(1) a commercial activity carried on in the United States by the foreign state; or
(2) an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or
(3) an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
Id. Notwithstanding the conclusory statements presented in its Supplemental Brief, Raccoon has not sustained its burden of alleging specific facts that would support the commercial activities exception. Raccoon may only rely on the commercial activity exception if the agency or instrumentality's commercial activity has a "significant nexus" with Raccoon's cause of action. See Nysa-Ila Pension Trust Fund v. Garuda Indonesia, 7 F.3d 35, 38 (2d Cir.1993), cert, denied, 510 U.S. 1116, 114 S.Ct. 1065, 127 L.Ed.2d 384 (1994). See also Santos v. Compagnie Nationale Air France, 934 F.2d 890, 892-93 (7th Cir.1991) (a claim is "based upon" events in the United States if those events establish a legal element of the claim); Stena Rederi AB v. Comision de Contratos, 923 F.2d 380, 386-87 (5th Cir.1991) (there must be a material connection between the plaintiffs cause of action and the commercial acts of the foreign sovereign)
Based upon the factual allegations raised in Raccoon's Application, this court concludes that Raccoon has not presented evidence sufficient to overcome Navoi's prima facie showing of sovereign immunity or bring this action within a statutory exception. Raccoon argues that "the adversary proceeding from which this judgment arose is based on Navoi's engagement in commercial activity in the United States." However, Raccoon must show a material nexus between Raccoon's action and the commercial activity. Rodriguez, 934 F.Supp. at 497. Accepting the truth of Raccoon's allegations, it appears that the performance of Navoi's agreement to supply uranium took place outside the United States. Director Kuchersky has stated Nuexco AG contract to purchase uranium was negotiated through a Soviet entity, Tenex, and that Navoi was not a party to that agreement. See Kuchersky Supplemental Declaration at ¶14. Navoi claims that its only contact with Nuexco was in connection with Navoi's attempt to collect the debt that Tenex owned to Navoi. Id. at ¶17. This court will not find a "direct effect" in the United States merely because that contract negotiated between Nuexco and Tenex contemplated a payment presumably originating in the United States. See United World Trade, 33 F.3d at 1237-38.
Raccoon's action is not based upon commercial activity carried on in the United States by Navoi, but rather on Navoi's apparent failure to appear and defend an adversary proceeding commenced in the United States. "The only relevant acts for *1141 purposes of jurisdiction under the FSIA are those acts that form the basis of the plaintiffs complaint." Stena Rederi AB, 923 F.2d at 387-88. Indeed, the only contact between Navoi and the Joint Creditors' Committee for CSI Enterprises, Inc., or its successor Raccoon, comes through the Adversary Proceeding. That event will not suffice to bring this action within the commercial activity exception under § 1605(a)(2). See also Arriba Limited v. Petroleos Mexicanos, 962 F.2d 528, 533 (5th Cir.) ("the commercial activity that provides the jurisdictional nexus with the United States must also be the activity on which the lawsuit is based"), cert, denied, 506 U.S. 956, 113 S.Ct. 413, 121 L.Ed.2d 337 (1992).
Recognizing the burden-shifting procedure under the FSIA, Raccoon argues that it should be permitted to conduct "limited jurisdictional discovery on Navoi's status." See, e.g., Southway v. Central Bank of Nigeria, 198 F.3d 1210, 1218 (10th Cir.1999) (noting in passing that the trial court permitted "limited discovery `on the questions of agency and whether the Nigerian defendants actually participated in the alleged conduct'"). Elsewhere, Raccoon notes that "no discovery on the issue of Navoi's status as a foreign state has occurred." Notably, Raccoon's original Request for Discovery is far more expansive, seeking "discovery in aid of judgment and execution pursuant to Fed.R.Civ.P. Rule 69 and ... discovery on all issues raised by Navoi's removal of the State Court action."
The court has discretion to permit limited discovery with respect to jurisdictional issues and the applicability of an FSIA exception. See First City v. Rafidain Bank, 150 F.3d 172, 176 (2d Cir. 1998). See also Moran, 27 F.3d at 172 (the court has discretion to devise a method for making a determination with regard to the jurisdictional issue). However, the right to conduct preliminary discovery is not absolute. See Crist v. Republic of Turkey, 995 F.Supp. 5, 12-13 (D.D.C.1998) and cases cited therein. The opportunity to conduct discovery also must be consistent with the principles and objective underlying the Act. See Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir.2000) (under FSIA, foreign sovereign has immunity from trial and the attendant burdens of litigation); United States v. Moats, 961 F.2d 1198, 1203 (5th Cir.1992) ("sovereign immunity is an immunity from the burdens of becoming involved in any part of the litigation process, from pretrial wrangling to trial itself). Compare Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001) (noting that the doctrine of qualified immunity "is an entitlement not to stand trial or face the other burdens of litigation"). "When FSIA immunity has been claimed, unlimited jurisdictional discovery is not permitted as a matter of course. Instead, it should be ordered circumspectly and only to verify allegations of specific facts crucial to an immunity determination." Kelly, 213 F.3d at 849.
In its Supplemental Brief, Raccoon argues that it should be permitted to conduct discovery on such issues as: (1) does the Kyzylkumredmetzoloto Concern own or hold Navoi shares; (2) what is the nature or status of the Kyzylkumredmetzoloto Concern and under what law was it formed; (3) what is or was the relationship between the company owned by the Soviet Union's Ministry of Medium Machine Building and the present Uzbek entity; and (4) what business form did Navoi have when it obtained a judgment in the Denver action. These areas of inquiry suggest little more than a fishing expedition. None of the desired discovery appears reasonably calculated to elucidate facts bearing on the applicability of a jurisdictional exception under the FSIA. Raccoon also contends that it should be *1142 permitted to conduct discovery into the veracity and authenticity of the exhibits tendered in support of Navoi's Opposition to Application for Charging Order, filed May 24, 2002 and its Surreply to Raccoon's Supplemental Brief, filed on July 25, 2002. While the court has discretion to permit limited discovery, that opportunity does not supplant Raccoon's obligation to state specific facts that would bring this action within a recognized FSIA exception to foreign sovereign immunity. Cf. Arriba, 962 F.2d at 537 n. 17.
In view of this court's finding that Raccoon improperly seeks to impose a charging order on assets outside the United States, the discovery requested by Raccoon is irrelevant. See Phoenix Consulting, 216 F.3d at 40 (discovery should not be granted at all if defendant raises other non-merits grounds, the resolution of which would impose a lesser burden on defendant) (quoting In re Papandreou, 139 F.3d 247, 254-55 (D.C.Cir.1998)). Given the non-jurisdictional defects in Raccoon's Application, it would defeat the protections afforded under FSIA to require Navoi to submit to burdensome and unnecessary discovery. Cf. Whitehead v. Grand Duchy of Luxembourg, 1998 WL 957463 * 5 (4th Cir.1998).
C. Immunity from Attachment
Navoi contends that Raccoon's Application for Charging Order must be denied as contrary to the express terms of the FSIA. Raccoon's Application seeks to charge Navoi's purported interest in the Zarafshan-Newmont joint venture. Colorado law provides that upon application by any judgment creditor of a partner, the court which entered the judgment or any other court may charge the interest of the debtor partner with payment of the unsatisfied amount of the judgment with interest thereon. See Colo.Rev.Stat. § 7-60-128. See also First National Bank v. District Court, 652 P.2d 613, 618 (Colo. 1982) (holding that a charging order is the exclusive mechanism to be used to execute upon a judgment debtor's interest in a partnership). Raccoon "seeks payment of the judgment form (sic) the partnership distributions due and owing to Navoi pursuant to the partnership agreement."
Raccoon has submitted various internet publications by Newmont Mining, which describe the Zarafshan-Newmont mining operation. The heap leach mine is located near the town of Zarafshan, Uzbekistan. It appears that all mining operations are confined to Uzbekistan. Zarafshan-Newmont is a limited liability company organized and registered under the laws of Uzbekistan. See Kurchersky Declaration at HI 9-11. The Kuchersky Declaration states that Zarafshan-Newmont does not do any business in the United States and does not own any property in the United States. Id.
The FSIA provides that property in the United States of a foreign state, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment by a court of the United States or of a State. 28 U.S.C. § 1610(a). Similarly, any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune from attachment in aid of execution upon a judgment. 28 U.S.C. § 1610(b). It is well-established that the FSIA creates specific exceptions to the traditional view that property of foreign states was absolutely immune from attachment. See Fidelity Partners, Inc. v. Philippine Export and Foreign Loan Guarantee Corporation, 921 F.Supp. 1113, 1117 (S.D.N.Y.1996). See also Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). By its very terms, the FSIA limits attachment *1143 to property of the foreign state or instrumentality located "in the United States." Id. at 1118-19. See also Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1477 (9th Cir.1992) ("section 1610 does not empower United States courts to levy on assets located outside the United States"); Fidelity Partners, Inc. v. First Trust Company of New York, 58 F.Supp.2d 52, 53 & n. 2 (S.D.N.Y. 1997).
Raccoon's Application for Charging Order sweeps too broadly and seeks relief that is barred by the plain language of the FSIA. On that basis, the Application must be denied.
D. Service of Process
Finally, Navoi argues that Raccoon's Application for Charging Order should be dismissed based upon Raccoon's failure to comply strictly with the requirements for service of process established in the FSIA. It appears to be undisputed that Raccoon did not satisfy all of the procedural requirements for service of process set forth in 28 U.S.C. § 1608(b). Raccoon argues that these technical omissions are immaterial because Navoi has actual notice of the proceedings and the judgment in the earlier Adversary Proceeding. In support of its position, Raccoon cites decisions holding that the FSIA service requirements are satisfied where substantial compliance has effected actual notice. See Transamerican S.S. Corp. v. Somali Democratic Republic, 767 F.2d 998, 1001 (D.C.Cir. 1985). Navoi cites a different line of cases supporting its view that dismissal of the pending litigation is required based upon Raccoon's failure to strictly comply with the FSIA service requirements. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C.Cir.1994), cert, denied, 513 U.S. 1150, 115 S.Ct. 1101, 130 L.Ed.2d 1068 (1995); Magnus Elecs., Inc. v. Royal Bank of Canada, 620 F.Supp. 387, 389 (N.D.IU.1985); Jackson v. People's Republic of China, 550 F.Supp. 869, 873 (N.D.Ala.1982).
In view of the court's finding that Raccoon's Application should be denied on other grounds, it is unnecessary to reach the question of service of process.
E. Conclusion
For all of the foregoing reasons, this court recommends denial of Raccoon's Application for Charging Order and dismissal of the instant action as contrary to the FSIA. For the same reasons, the court recommends denial of Raccoon's Request for Discovery.
Advisement to the Parties
Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995).
The district judge shall make a de novo determination of those specific portions of the proposed findings or recommendations to which specific objection is made. 28 U.S.C. § 636(b)(1). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review by the district court. See In re Griego, 64 F.3d at 583; United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.), cert, denied, 519 U.S. 909, 117 S.Ct. 271, 136 L.Ed.2d 194 (1996). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
*1144 [A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d at 1060. Failure to make timely objections to the magistrate judge's proposed findings and recommendations will bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. In re Key Energy Resources, Inc., 230 F.3d 1197, 1199-1201 (10th Cir. 2000); Theede v. United States Department of Labor, 172 F.3d 1262, 1267-68 (10th Cir.1999); One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d at 1059-60.
NOTES
[1] Under the FSIA, the term "foreign state" includes an "agency or instrumentality of a foreign state," which encompasses an entity
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state ... or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States .... nor created under the laws of any third country. 28 U.S.C. § 1603(b).
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114 F.3d 571
Joe Clark MITCHELL, Petitioner-Appellee, Cross-Appellant,v.John REES, Respondent-Appellant, Cross-Appellee.
Nos. 95-6232, 95-6397.
United States Court of Appeals,Sixth Circuit.
Argued Sept. 18, 1996.Decided May 29, 1997.Rehearing and Suggestion for Rehearing En Banc Denied Aug.12, 1997.*
Thomas W. Watson, Asst. F.P. Defender (argued and briefed), Federal Public Defender's Office, Nashville, TN, for Appellee.
Michael J. Fahey, II (argued and briefed), Office of the Attorney General, Civil Litigation & State Services Division, Nashville, TN, Christina S. Shevalier (briefed), Office of the Attorney General, Criminal Justice Division, Nashville, TN, for Appellant.
Before: KEITH, SILER, and BATCHELDER, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined. KEITH, J. (pp. 579-83), delivered a separate dissenting opinion.
OPINION
BATCHELDER, Circuit Judge.
1
Joe Clark Mitchell filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Tennessee. The district court granted the petition and issued the writ. Respondent-Warden John Rees appeals, and the petitioner cross appeals.
I. BACKGROUND
A. STATE COURT PROCEEDINGS
2
Petitioner was indicted in 1982 by a Maury County, Tennessee, grand jury on charges of aggravated sexual battery, arson, first-degree burglary, and two counts each of aggravated assault, armed robbery, and aggravated kidnapping, and in 1983, in a second indictment, on two charges of aggravated rape, all arising out of the same incident. His trial took place in September 1986.1 The trial court dismissed the aggravated-sexual-battery charge, and the jury convicted Mitchell on the remaining charges. In affirming the conviction, the Tennessee Court of Criminal Appeals rejected all but one of Mitchell's contentions that the evidence was insufficient to support his conviction. Because the evidence did not support the second aggravated-rape conviction, the court reduced that conviction to simple rape and reduced the sentence accordingly. State v. Mitchell, No. 87-152-III, 1988 WL 32362, at * 1, * 4 (Tenn.Crim.App. April 7, 1988), permission to appeal denied, (Tenn. June 27, 1988). The petitioner's
3
convictions arose out of a single crime spree during which two women, one quite elderly, were terrorized for several hours. One of the victims testified that as she was leaving her friend's house, a man started towards her across the lawn. He hit her several times with a large stick, and he was armed with a gun and a hunting knife. He forced both women into the house, used duct tape to tape their ankles, arms, mouths, and eyes. He stole their jewelry and ransacked the house. He used a knife to cut the clothes off the testifying witness and raped her. Then he set fire to the house. He carried both women to a car, drove around for several hours, stopping at one point to rape the witness one more time. He eventually abandoned the car and the women, and they were able to free themselves and walk for help....
4
[A] witness ... testified that the defendant had discussed robbing Mrs. Chapman, one of the victims, on two previous occasions. The conversations took place about two months prior to offenses in this case.
5
Id. at * 1-2.
6
In December 1988, Mitchell filed pro se a petition for post-conviction relief in the Circuit Court of Maury County, Tennessee, under the Post-Conviction Procedure Act, TENN.CODE ANN. §§ 40-30-101 to 40-30-124 (1990) (repealed 1995).2 The petition included several claims of ineffective assistance of trial and appellate counsel,3 including a claim that counsel had failed to challenge the make-up of the jury pool in Maury County, which, according to Mitchell, unconstitutionally excluded blacks. The circuit court held an evidentiary hearing, at which Mitchell was represented by counsel, on all of the claims raised in the petition. Although Mitchell had not raised at trial, on direct appeal or in his post-conviction petition any claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),4 or any claim that his trial and direct-appeal attorney had been ineffective for not raising Batson,5 the circuit court permitted Mitchell's counsel to introduce evidence relative to the Batson claim during the evidentiary hearing. At the conclusion of the hearing, the circuit court ruled from the bench that the petition should be dismissed, holding that none of Mitchell's claims had any merit. The circuit court did not specifically address the Batson issue.
7
Mitchell appealed to the Tennessee Court of Criminal Appeals, reiterating his ineffective-assistance claims and, in addition, explicitly raising both a Batson claim and a claim of ineffective assistance of counsel for failure to raise the Batson issue. The state appellate court affirmed. On the ineffective-assistance claims, the court stated:
8
The trial judge found from the evidence introduced at the hearing on this case, that trial counsel was competent.
9
The only evidence was the testimony of the appellant and the trial attorney who represented him in the convicting trial.
10
We can readily see why the trial judge ruled counsel was competent. The testimony shows trial counsel was well prepared in this case and gave sound advice to the appellant. The appellant's testimony reflects diminished credibility on his part. The record supports the finding of the trial judge on the question of competency.
11
Mitchell, 1991 WL 1351, at * 1. The appellate court explicitly addressed the Batson issue and made the following findings of fact:
12
The appellant testified there were blacks among the venire summoned as prospective jurors for his trial. He further testified the district attorney general used peremptory challenges to remove those called for his case. He further testified no black juror sat on his case.
13
Trial counsel testified there were blacks in the venire. He was less definite on whether blacks were on this particular panel. The attorney testified he probably told this appellant, as testified to by the appellant, that the state was excusing the black jurors.
14
The record does not show how many peremptory challenges were used by the state or whether the district attorney general exercised peremptory challenges to excuse those who were not a member of the minority class involved in this complaint; nor does the record show whether there were other black persons left in the venire who might have been called to serve in this case.
15
We conclude the lack of evidence on the Batson issue does not justify this Court upsetting the judgment entered in the original cases.
16
Id.
B. FEDERAL COURT PROCEEDINGS
17
In April 1993, Mitchell filed his § 2254 petition in the federal district court, which in August 1993 dismissed all but one of the claims. Two of the claims which the district court promptly dismissed alleged that Mitchell had ineffective assistance of counsel vis--vis Batson and other issues, and that there was insufficient evidence to convict him. The sole claim that the district court did not dismiss was the Batson claim itself (not the related ineffective-assistance claim) as stated in the federal habeas petition. The district court referred that claim to a magistrate judge for an evidentiary hearing, citing 28 U.S.C. § 636(b) and HABEAS CORPUS RULE 8(b)(1).
18
The magistrate judge held the hearing and recommended that the habeas petition be denied. The district court rejected that recommendation and granted the petition, ordering the warden to release Mitchell within 90 days unless the state began a retrial within that time. The state timely appealed the granting of the petition, and Mitchell cross-appealed, challenging the district court's earlier order dismissing his claims of ineffective assistance of counsel and insufficiency of the evidence. In September 1995, the court granted the warden's motion to stay pending appeal.
II. DISCUSSION
19
The state asserts that the district court erred in ordering an evidentiary hearing on the Batson claim, because the state court made relevant findings that should have been presumed correct. Claiming that the petitioner has asserted none of the factors enumerated in 28 U.S.C. § 2254(d) that would permit the district court to disregard the state court's findings, the respondent urges us to hold that the state court's findings were correct.
20
The petitioner asserts that the respondent did not object to the magistrate judge's report and recommendation, and did not raise in the district court the issue of whether petitioner was entitled to an evidentiary hearing; consequently, petitioner maintains that respondent is precluded from objecting to the hearing now. In support of this assertion, the petitioner cites Thomas v. Arn, 474 U.S. 140, 144-48, 106 S.Ct. 466, 469-72, 88 L.Ed.2d 435 (1985) (upholding the rule of United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981), that a party, by not objecting in the district court to the magistrate judge's report and recommendation, waives a right to appeal to this court); petitioner, however, provides no case law that applies the Walters rule in the circumstances peculiar to this case.
21
We conclude that the district court erred in ordering an evidentiary hearing on petitioner's Batson claim and in granting the petition for the writ. We further hold that the state is not precluded from raising on appeal its objection to the district court's having held that evidentiary hearing.
22
We begin with the application of 28 U.S.C. § 2254(d),6 which establishes a presumption of correctness for factual determinations made by the state courts whose judgments are challenged by the federal habeas petitioner.7 The Supreme Court, in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), held that § 2254(d) mandated that the presumption of correctness be applied by the habeas court to a finding of the state appellate court that " 'the facts of the present case' did not adequately support respondent's claim." Id. at 546, 101 S.Ct. at 768.8 The Court went on to lay down the rule that "a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was 'not fairly supported by the record.' " Id. at 551, 101 S.Ct. at 771. The reason for this requirement, the Court explained, is that "[n]o court reviewing the grant of an application for habeas corpus should be left to guess as to the habeas court's reasons for granting relief notwithstanding the provisions of § 2254(d)." Id. And in a footnote, the Court further explained that "the 1966 amendments embodied in § 2254(d) were intended by Congress as limitations on the exercise of [federal court] jurisdiction. As we held in Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908) and have repeatedly since reaffirmed, 'it is the duty of this [C]ourt to see to it that the jurisdiction of the [district court] which is defined and limited by statute, is not exceeded.' " Id. at 548, n. 2, 101 S.Ct. at 770.9
23
In the case before us, the state appellate court reviewed the evidence presented in the course of the hearing on the post-conviction petition, made findings of fact both as to what the record did show and what it did not show in regard to the Batson claim, and held that "the lack of evidence on the Batson issue does not justify this Court in upsetting the judgment entered in the original cases." Like the state appellate court finding in Sumner, this finding is entitled to the presumption of correctness mandated by § 2254(d) unless one of the enumerated exceptions in that section applies. The district court, however, neither gave any deference to that finding nor made any reference at all to § 2254(d). Rather, in spite of its explicit acknowledgment that "The Tennessee Court of Criminal Appeals found that there was insufficient evidence in the record to rule upon this claim," the district court ordered that the magistrate judge conduct an evidentiary hearing on the claim, stating that "This Court cannot, however, ignore the facts in this record which suggest that the prosecution may have acted improperly."
24
Because § 2254(d) is an express limitation on the district court's jurisdiction, a district court is without authority to hold an evidentiary hearing on a matter on which the state court has made findings unless one of the factors contained in § 2254(d) applies. It was error, therefore, for the district court to dispense with the presumption of correctness embodied in § 2254(d) and to order an evidentiary hearing without providing a written statement of the "reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was 'not fairly supported by the record.' " Id. at 551, 101 S.Ct. at 771. We are satisfied that the district court could not have proceeded on the basis of § 2254(d)(8), since, as we more fully explain below, the state appellate court's finding that there was insufficient evidence of a Batson violation is "fairly supported" by the record of the state court proceedings. It is, however, implicit in the district court record that the petitioner and the court proceeded on the basis of § 2254(d)(3), "that the material facts were not adequately developed at the State court hearing."
25
Once a district court has properly determined that it may dispense with the presumption of correctness mandated by § 2254(d), the court has some discretion in determining whether to hold an evidentiary hearing. See Lonchar v. Thomas, 517 U.S. 314, ----, 116 S.Ct. 1293, 1300, 134 L.Ed.2d 440 (1996) (citing HABEAS CORPUS Rule 8(a); Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963); Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 1720-21, 118 L.Ed.2d 318 (1992)); see also Sims v. Livesay, 970 F.2d 1575, 1579 (1992) (quoting Townsend, 372 U.S. at 318, 83 S.Ct. at 759). However, an habeas petitioner who has not developed the record in state court is entitled to an evidentiary hearing only if he shows (1) "cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure" or (2) "that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Keeney, 504 U.S. at 11-12, 112 S.Ct. at 1720 (citing McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)), overruling Townsend in part; Mann v. Scott, 41 F.3d 968, 985 (5th Cir.1994) (holding that the habeas petitioner bears the burden of proof on both points (citing Keeney, 504 U.S. at 11-12, 112 S.Ct. at 1720)), cert. denied, 514 U.S. 1117, 115 S.Ct. 1977, 131 L.Ed.2d 865 (1995). Therefore, a district court abuses its discretion by ordering such a hearing without first requiring the petitioner to make the requisite showing.10
26
In its answer to the petition for the writ, the state explicitly claimed that the state courts had made findings of fact with regard to the Batson claim and that petitioner had made no showing of any factor under § 2254(d) that would overcome the presumption of correctness of those findings. As the Keeney Court made clear, 504 U.S. at 8-9, 112 S.Ct. at 1719, petitioner had the burden of developing the factual record on his Batson claim in state court. The Tennessee Court of Criminal Appeals accurately summarized all of the evidence relative to Mitchell's claim of a Batson violation presented during the hearing in the post-conviction proceeding. We conclude, as that court did, that the petitioner failed to sustain that burden.11
27
In order to have prevailed in state court on his claim of a Batson violation, petitioner was required first to establish a prima facie case of purposeful discrimination in the selection of the jury. Batson, 476 U.S. at 93-94, 106 S.Ct. at 1721. The prima facie case may be made by a defendant's showing "that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. (citing Washington v. Davis, 426 U.S. 229, 239-242, 96 S.Ct. 2040, 2047-49, 48 L.Ed.2d 597 (1976)). And while such a defendant may make this showing through evidence of systematic exclusion of black jurors from service on juries in the particular jurisdiction, id. at 94-95, 106 S.Ct. at 1722, he may also make the showing by relying solely on the facts relative to the selection of the jury in his own case. Id. at 95, 106 S.Ct. at 1722.
28
In deciding whether the [petitioner] has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.
29
Id. at 96-97, 106 S.Ct. at 1722-23. Here, however, the record simply does not contain evidence of "all relevant circumstances," or of the "totality of the circumstances," either in the particular jurisdiction or in petitioner's particular case. As the state court pointed out, there is no evidence of how many peremptory challenges were exercised by the state or whether any peremptory challenges were exercised by the state to excuse non-minority jurors. Without that evidence, the state court could not have determined whether the peremptory challenges were exercised in a "pattern" of strikes. There is no evidence in that record relative to the prosecutor's questions and statements during voir dire examination, or whether there remained any other black jurors in the venire who might have been called to sit on the petitioner's case. Our review of that record reveals that there is no evidence of a systematic pattern of excluding black jurors in criminal cases in the particular jurisdiction, or any other evidence relative to practices of jury selection in the jurisdiction that would raise an inference of discrimination. Id. at 94-95, 106 S.Ct. at 1722-23. When the trial court had before it nothing more than the petitioner's evidence that no blacks sat on his jury and that the state exercised peremptory challenges to strike blacks from the jury, the court could not consider "all relevant circumstances."
30
Because, as the state court of criminal appeals correctly concluded, there was insufficient evidence contained in the record to support a Batson challenge, or, as that court put it, "to justify ... upsetting the judgment entered in the original case," Mitchell, 1991 WL 1351, at * 1, that record was inadequately developed to support such a challenge in the federal court as well. The district court was thus required to determine, using a cause-and-prejudice standard, whether petitioner was entitled to an evidentiary hearing on this claim. Keeney, 504 U.S. at 12, 112 S.Ct. at 1721
31
The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings. This is fully consistent with, and gives meaning to, the requirement of exhaustion.... Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits.... A different rule could mean that a habeas petitioner would not be excused for negligent failure to object to the introduction of the prosecution's evidence, but nonetheless would be excused for negligent failure to introduce any evidence of his own to support a constitutional claim.
32
Id. at 9-10, 112 S.Ct. at 1719-20 (citations omitted). Therefore, the district court erred in ordering an evidentiary hearing without requiring the petitioner to establish either (1) cause and prejudice for his failure to adequately develop the material facts in the state court proceedings, or (2) that not holding an evidentiary hearing would result in a fundamental miscarriage of justice.12
33
In sum, the district court erred in granting the petition for the writ. The petition was granted solely on the basis of the evidence adduced at the hearing ordered by the district court, and, as we have explained, that hearing was ordered erroneously.
34
Finally, we find no error in the district court's dismissal of petitioner's claims of ineffective assistance of counsel13 and insufficiency of the evidence. The district court found that the petitioner had failed to establish any basis to overcome the statutory presumption of correctness that attaches to the state court's findings of fact; that those findings were supported by the record; and that on those facts the claims were meritless.
III. CONCLUSION
35
Accordingly, we VACATE the order granting the petition for the writ of habeas corpus, VACATE the order for the evidentiary hearing, and REMAND this matter to the district court for further proceedings consistent with this order.
36
KEITH, Circuit Judge, dissenting.
37
I must dissent from the Majority Opinion because I am very disturbed that a panel of this Court would, based upon a less-than one page opinion by the Tennessee Court of Criminal Appeals, disregard the findings of a district court judge that Mitchell's constitutional rights were violated. The Majority states that the district court committed reversible error in ordering an evidentiary hearing on Mitchell's Batson claim, and in granting his petition for the writ. Citing the Supreme Court's opinion in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), as the justification for its holding, the Majority maintains that the district court should not have held an evidentiary hearing on a matter on which the state court has made findings. Because the Majority's result-driven opinion is without legal basis and makes a mockery of the judicial concept of fundamental fairness, I dissent.
38
It is true that in Mata, the Supreme Court held that 28 U.S.C. § 2254(d) establishes a cloak of correctness over factual determinations made by state courts whose judgements are being challenged by federal habeas petitioners. Mata, 449 U.S. at 544-49, 101 S.Ct. at 767-70. Section 2254 serves as a jurisdictional limit on the authority of federal courts where state courts of competent jurisdiction have made factual findings that are being challenged by a habeas petitioner. 28 U.S.C. § 2254(d). However, the Court also held in Thompson v. Keohane, 516 U.S. 99, ----, 116 S.Ct. 457, 464, 133 L.Ed.2d 383 (1995) that the presumption of correctness is only applicable when state courts have made findings, and then only to state court findings of historical fact. See also, Wainwright v. Goode, 464 U.S. 78, 83-85, 104 S.Ct. 378, 381-82, 78 L.Ed.2d 187 (1983) (intimating that if a finding cannot be characterized as a finding of historical fact then the presumption of correctness does not apply); Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984) (indicating that findings of historical fact are entitled to presumption of correctness). The Circuits that have addressed this issue have uniformly held that only historical findings of state courts are entitled to a presumption of correctness. Berryman v. Morton, 100 F.3d 1089, 1097 (3d Cir.1996); McAleese v. Mazurkiewicz, 1 F.3d 159, 168 (3d Cir.1993); Hunt v. Nuth, 57 F.3d 1327, 1332 (4th Cir.1995) (stating that "[d]eterminations of historical facts by the state court are presumptively correct"); Edmond v. Collins, 8 F.3d 290, 292 (5th Cir.1993) (maintaining that "presumption of correctness applies to ... historical facts underlying ... [a] state's ultimate conclusion of law"); Milone v. Camp, 22 F.3d 693, 698-99 (7th Cir.1994) ("State court findings of historical fact are presumed to be correct ... but questions of law or mixed questions of law and fact lack that presumption and are reviewed de novo.") (internal quotation marks omitted); Haley v. Armontrout, 924 F.2d 735, 740 (8th Cir.1991) (holding that state court "findings of specific historical fact are presumptively correct"); Chacon v. Wood, 36 F.3d 1459, 1465 (9th Cir.1994) (stating that "the ultimate state court determination of the effectiveness of counsel or of the voluntariness of a guilty plea is not subject to deferential review.... Rather, it is the state court's findings on questions of historical fact that are presumed to be correct under § 2254(d)"); Steele v. Young, 11 F.3d 1518, 1520 & n. 2 (10th Cir.1993) ("Explicit ... findings of historical facts by the state trial and appellate courts are presumed correct."); McBride v. Sharpe, 25 F.3d 962, 971 (11th Cir.1994) ("Of course, the statutory presumption of correctness applies only to findings of historical fact made by the state court, not to mixed determinations of law and fact.").
39
Even this Circuit, albeit in unpublished opinions, had heretofore recognized that only questions of historical fact are entitled to a presumption of correctness. In Rhode v. Grayson, 1994 WL 163645, * 1, * 3, this Circuit stated, matter-of-factly, that "[g]enerally, a finding of basic, historical fact made by a state trial court should be presumed correct unless a habeas petitioner shows error." Also, in Staton v. Parke, 1993 WL 483210, * 1, * 2, this Court stated that the conclusory statement of the Kentucky Supreme Court holding that the available evidence in that case presented no reasonable basis to justify the instruction requested by the defendant was not a finding of historical fact entitled to a presumption of correctness. This Court stated that "[u]nlike a finding of historical fact, [which is entitled to a presumption of correctness,] this finding is not presumptively correct." The panel's holding in that case is patently at odds with the Majority's conclusion in this case. Admittedly, these opinions are not given the same precedential value as our published opinions, and, though there is no published caselaw from this Circuit directly on point, there is precedent from the Supreme Court and our sister Circuits that cannot simply be ignored.
40
In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), the Supreme Court held that a state court's conclusion that a defendant was not "in custody" was not a finding of historical fact entitled to a presumption of correctness. Id. at ---- - ----, 116 S.Ct. at 466-67. The Court defined findings of historical fact as findings of basic, primary, issues that reconstruct "what happened." Id. at ---- - ----, 116 S.Ct. at 464-67. The Court then held that the state court finding that the defendant was in custody is not such an historical fact, but is rather a mixed question of fact and law. Id. Similarly, in Berryman, 100 F.3d at 1095, a panel of the Third Circuit held that "a state court's conclusion that counsel rendered effective assistance is not a finding of fact binding on" federal courts because "[e]ffectiveness is not a question of historical fact." (internal quotation marks omitted). Also, in Chacon, 36 F.3d at 1464, the Ninth Circuit refused to cloak a state court's findings with the presumption of correctness where there "was ... no relevant state court finding to which deference was due." However, in McBride, 25 F.3d at 971, the Eleventh Circuit held that the state court's fact-finding procedure was entitled to a presumption of correctness because the state court made specific historical findings as to each of the issues raised by the defendant.
41
In the instant case, the Tennessee Court of Appeals did not make any findings of fact whatsoever. Even if one were to torture the Tennessee Court of Appeals conclusory statement into a finding of fact, it cannot be seriously contended that that court made a finding of historical fact. At best, that court's statement is a mixed question of law and fact, which is not entitled to the presumption of correctness. The Majority's lamentable opinion is not rehabilitated by its reliance on the Supreme Court's decision in Mata. In Mata, the Supreme Court respected the factual findings of the state court because it concluded that the state court made specific historical findings that were entitled to deference. There, a defendant challenged the pretrial photographic identification method employed in his case on the basis that his Fourteenth Amendment right to due process was violated. Id. at 542, 101 S.Ct. at 766. The Supreme Court reversed the Ninth Circuit, which had found the pretrial identification process to be impermissible, on the grounds that the "findings made by the Court of Appeals for the Ninth Circuit are considerably at odds with the findings made by the California Court of Appeal." Id. at 543, 101 S.Ct. at 767. The Court noted that the California Court found "that the photographs were available for cross-examination purposes at the trial[;] ... that there [was] no showing of influence by the investigation officers[;] that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate." Id. at 542, 101 S.Ct. at 766. Based upon those historical factual findings, which determined "what happened," the California Court concluded that there was no error on the admission of the identification evidence because the "circumstances ... indicate the inherent fairness of the procedure." Id. at 542, 101 S.Ct. at 766.
42
Given that the California Court of Appeal made factual findings, and the specificity of those findings, it is understandable why the Supreme Court determined that § 2254 precluded a federal court from overturning those findings unless they fell into one of the categorical exceptions enumerated in § 2254. Unlike the California Court of Appeal, which made specific factual findings and then concluded that there was no error in the admission of the identification, the Court of Criminal Appeals of Tennessee did not make any factual findings to support its conclusion that "the lack of evidence on the Batson issue does not justify ... upsetting the judgment entered in the original cases." Mitchell v. State of Tennessee, 1991 WL 1351, * 1 (Tenn.Crim.App. Jan.11, 1991). Consequently, the Majority erroneously, and disingenuously, states that this "finding" is entitled to a presumption of correctness.
43
A federal court faced with a habeas petition must attempt to protect dual and sometimes competing values. On the one hand, the Court must pay heed to principles of comity and federalism. See, e.g., Mata, 449 U.S. at 547, 550, 101 S.Ct. at 769, 770; Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir.1992). Thus, state courts must be given the opportunity to pass upon state prisoners' constitutional claims, and once state courts have made factual findings, those findings must be given preclusive effect in federal courts. However, there is another value that must be protected by federal courts faced with a habeas petition. The federal courts are the principal guardians of the rights guaranteed under the United States Constitution. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705 (1967); see also United States v. Bd. of Ed., 11 F.3d 668, 676 (7th Cir.1993) (J. Cudahy dissenting) (stating that "the federal courts have a central role in enforcing constitutional guarantees against state and local governments"); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 60-128 (1980) (stating as the essential role of federal courts the protection of individual liberties). One of the primary methods the federal courts employ to enforce those rights is the writ of habeas corpus, which the Supreme Court has described as "a bulwark against convictions that violate 'fundamental fairness.' " Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1570, 71 L.Ed.2d 783 (1982) (quoting Wainwright v. Sykes, 433 U.S. 72, 97, 97 S.Ct. 2497, 2511, 53 L.Ed.2d 594 (1977)). Unfortunately, in their rush to overturn the district court's finding that Mitchell's constitutional rights had been violated, the Majority distressingly abdicates its role as the protector of the guarantees embodied in our Constitution.
44
I would agree with the Majority's decision were it based upon the need to safeguard principles of comity and federalism, or the importance of protecting the integrity of state fact-finding processes. I would understand the Majority's opinion had it determined that the district court's findings of fact were clearly erroneous. But I cannot concur in the cloak and dagger manner in which this Court is depriving Mitchell of his constitutional right to be tried by state procedures free of racial bias.
45
Both the magistrate and the district court, who conducted hearings and made findings of historical fact, agreed that Mitchell was able to establish a prima facie case of race discrimination under Batson. Additionally, the magistrate indicated that the prosecutor who conducted Mitchell's trial could not articulate a good reason for challenging a prospective African American juror. The district court agreed with the magistrate that the prosecutor did not have a good reason for challenging the African American juror, but disagreed with the magistrate's conclusion that the prosecutor's reasons were race-neutral. The district court noted that the prosecutor at first stated that he challenged the prospective Black juror because there was "something about the way she looked." He later stated that "she did not look like the right one for this case." Eventually, he settled on the juror's age for striking her from the jury pool. The district court concluded that the prosecutor's reasons, on the basis of his testimony, were "not worthy of belief." The court further noted--and the prosecutor admitted--that there were at least seven other jurors--White jurors--who were the same age or older than the Black juror that was struck. The district court remarked that the prosecutor did not ask any individual questions of the Black juror, nor did he identify "any objective criteria upon which to base his conclusion that ... [she] was unable to follow the evidence because of her elderly appearance." In sum, there is one factor that distinguished the Black juror for the rest of the pool: her race.
46
In light of the fact that the state court did not make any findings, much less findings of historical fact, the district court properly conducted an evidentiary hearing on Mitchell's Batson claim. Thus, the Majority's cause and prejudice analysis is inutile. The Majority argues that because the state court "had before it nothing more than the petitioner's evidence that no Blacks sat on his jury and that the state exercised peremptory challenges to strike blacks from the jury," the court correctly concluded that there was insufficient evidence to support a Batson challenge. What the Majority fails to realize is that the correctness vel non of the state court opinion is not the primary issue in this appeal. The issue is whether the state court's determination should be presumed correct. Section 2254(d) states that a judgement of a state court is to be presumed correct only after "a hearing on the merits of a factual issue." If the Court of Criminal Appeals of Tennessee did not believe that it had enough evidence on the Batson issue, it had only to hold a hearing on that issue to assure that Mitchell was convicted through processes that were not tainted by the unconstitutional exercise of institutional racism.
47
I cannot help but be amazed at the length to which the Majority will travel to deny Mitchell a fair trial. On the one hand, the Majority agrees with the Tennessee Court of Criminal Appeals, which held that the record was inadequately developed to support Mitchell's Batson claim. On the other hand, citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10, 112 S.Ct. 1715, 1719-20, 118 L.Ed.2d 318, (1992), for the proposition that state courts are the appropriate fora for resoluting factual disputes, the Majority ruled against Mitchell for not giving the state court "a fair and full opportunity to address and resolve the claim on the merits...." The fact is that the state court was given an opportunity to pass upon the merits of Mitchell's claim, and it declined to do so. Because the state court declined to review the merits of Mitchell's claim, the district court felt that it was judicially obligated to protect Mitchell's constitutional rights. The district court should be commended, not reversed, for its judicial vigilance by performing its duty in conducting a hearing in a search for the truth. See Rose v. Mitchell, 443 U.S. 545, 548, 99 S.Ct. 2993, 2996, 61 L.Ed.2d 739 (1979) (stating that "a claim that the court has discriminated on the basis of race in a given case brings the integrity of the judicial system into direct question" providing a particularly compelling justification for federal habeas corpus review); see also Sheri Lynn Johnson, The Color of Truth: Race and the Assessment of Credibility, 1 MICH. J. RACE & L. 261, 325 (1996) (arguing that the Constitution may require federal courts to hold evidentiary hearings when state court fact-finding procedures are not adequate to provide a full and fair hearing).
48
Because the Majority has stretched to the point of incredulity the requirement that state courts make findings of historical fact, and has thereby abdicated its responsibility as the primary guarantor of constitutional rights, I dissent from this judicial travesty.
*
Judge Keith would grant rehearing for the reasons stated in his dissent
1
The delay between indictments and trial was attributable in part to the fact that Mitchell fled the jurisdiction and for some two years fought extradition. The record reflects that after he was eventually returned to Tennessee, Mitchell and his trial counsel adopted the trial strategy of postponing the trial for as long as possible in the hope that the more elderly of his alleged victims would die and her testimony against him would thus be eliminated. This strategy was successful
2
Tennessee has a new Post-Conviction Procedure Act, TENN.CODE ANN. §§ 40-30-201 to 40-30-222 (Supp.1996), which applies to post-conviction petitions filed after May 10, 1995, and any motions filed after that date to reopen petitions concluded before that date. TENN.CODE ANN. § 40-30-201 (Compiler's Notes). Petitioner does not contend that the new act has any application here
3
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense
U.S. CONST. amend. VI. The Supreme Court has held that the Fourteenth Amendment makes the Sixth Amendment applicable to the states. Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963), overruling Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942).
4
Batson reaffirms that the "Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race," 476 U.S. at 86, 106 S.Ct. at 1717 (emphasis added) (citing Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 305, 25 L.Ed. 664 (1879)), and holds that the Equal Protection Clause prohibits a prosecutor from challenging "potential jurors solely on account of their race ..." Id. at 89, 106 S.Ct. at 1718. Strauder addresses the composition of the venire, while Batson addresses the composition of the jury. Batson established that a defendant may challenge the use of peremptory strikes by relying on facts in his case alone, a test that is easier for the challenger than the test of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). See 476 U.S. at 91-93, 106 S.Ct. at 1720-21
Although Batson itself applied to prosecutorial strikes of potential jurors of the same race as the criminal defendant, 476 U.S. at 96, 106 S.Ct. at 1722 (setting forth the prima facie case, for Batson Step 1); United States v. McCoy, 848 F.2d 743, 745 (6th Cir.1988) (same), subsequent opinions hold that the inquiry is whether a potential juror was excluded because of his race, regardless of whether he was of the same race as the defendant. See Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991). Other opinions apply the Batson principle in the context of strikes by the criminal defendant, Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992), strikes by civil litigants, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S.Ct. 2077, 2080, 114 L.Ed.2d 660 (1991), and strikes based on sex. J.E.B. v. Alabama, 511 U.S. 127, 127, 145, 114 S.Ct. 1419, 1421, 1430, 128 L.Ed.2d 89 (1994).
5
Under the Post-Conviction Procedure Act in effect when Mitchell filed his state post-conviction petition, see supra at 572 n. 1, the petitioner is entitled to a hearing on any ground for relief except those that have been either waived or previously determined. TENN.CODE ANN. § 40-30-111. "A ground for relief is 'waived' if the petitioner knowingly and understandingly failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented." TENN.CODE ANN. § 40-30-112(b)(1). "There is a rebuttable presumption that a ground for relief not raised in any such proceeding which was held was waived." Id. § (b)(2)
Mitchell's post-conviction petition contained no claim that the prosecutor had impermissibly used peremptory challenges to strike black jurors from the jury. However, over the state's tepid objection, the state circuit court permitted both the petitioner and his trial counsel to testify at the hearing on the post-conviction petition that the prosecution had stricken blacks from the jury, Mitchell v. State, No. 01-C-01-9007-CC-00158, 1991 WL 1351, at * 1 (Tenn.Crim.App. Jan.11, 1991), permission to appeal denied, (Tenn. April 15, 1991). The petitioner did not seek to present any other evidence on this issue. The petition did contend that Mitchell's trial and direct-appeal attorney was ineffective for failing to (1) challenge the alleged exclusion of felons from "the jury pool from which the grand and trial jury was selected," i.e., the venire, (2) challenge the alleged exclusion from "the jury pool [from] which the trial jury was selected" of a fair representation of blacks in proportion to the black population of Maury County, and (3) challenge, during voir dire, the alleged racial prejudices of jurors. Of these three contentions, the transcript of the post-petition hearing reveals that the petitioner waived the first, and the court held that the second and third "absolutely have no merit." None of these is a Batson claim. However, the state conceded at oral argument before us that it never raised the issue of procedural default, i.e., the state never contended that the petitioner had waived his Batson claim, and the state does not argue that position in its brief, and therefore whether this claim was waived under Tennessee law is not before us.
6
28 U.S.C. § 2254(d) provides:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit--
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such a factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
7
After the judgment granting the petition was entered, 28 U.S.C. § 2254 was amended. Neither of the parties has raised the issue of the applicability of the amended statute in this case, and we do not address that issue
8
In Sumner, the Court held that the habeas petitioner ("Respondent" in the Supreme Court Proceedings) had received the "hearing" required by 28 U.S.C. § 2254(d), even though the factual determinations had been made by the state court of appeals after review of the trial court record. "Both the respondent and the State were formally before the court. Respondent was given an opportunity to be heard and his claim received plenary consideration even though he failed to raise it before the trial court." Sumner, 449 U.S. at 546, 101 S.Ct. at 768. In the case before us, the habeas petitioner was permitted to, and did, present evidence relative to his Batson claim at the evidentiary hearing on his post-conviction proceeding, even though he had failed to plead such a claim in his post-conviction petition. The trial court, without mentioning the Batson claim in particular, ruled that all of petitioner's claims were meritless, but the court of criminal appeals reviewed all of that evidence, and made specific findings, including the finding that the lack of evidence on the Batson claim did not justify setting aside the conviction
9
For this reason, petitioner's contention here that the state has waived its right to object to the evidentiary hearing is without merit
10
A district court abuses its discretion when it "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." First Technology Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir.1993) (citation omitted); see also Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.) (citations omitted), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985)
11
Unlike the view expressed in the dissent, we think that the cause and prejudice requirement is essential to the safeguarding of the principles of comity and federalism. See, e.g., Engle v. Isaac, 456 U.S. 107, 126-28, 102 S.Ct. 1558, 1570-72, 71 L.Ed.2d 783 (1982). The dissent fails to recognize that the petitioner's failure to develop in the state court proceedings the material facts necessary to support his constitutional claims is a procedural default that can be excused by the federal habeas court only upon a showing of cause and prejudice. Similarly, the dissent fails to recognize that the state court's holding that the record contained insufficient evidence of a Batson violation to justify setting aside petitioner's conviction is a finding of fact entitled to deference under § 2254(d) just as the state court's finding in Sumner that " 'the facts in the present case' did not adequately support respondent's claim" was entitled to deference. Sumner, 449 U.S. at 545, 101 S.Ct. at 768. It is only by wholly disregarding the procedural record before us, and by shifting to the state court of criminal appeals the burden of adequately developing the factual record on petitioner's behalf, that the dissent is able to conclude that an analysis under Keeney is "inutile."
12
Briefly stated, a fundamental miscarriage of justice occurs when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent. E.g., Schlup v. Delo, 513 U.S. 298, 326-30, 115 S.Ct. 851, 867-68, 130 L.Ed.2d 808 (1995); Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993); Sawyer v. Whitley, 505 U.S. 333, 339-42, 112 S.Ct. 2514, 2518-20, 120 L.Ed.2d 269 (1992); McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470; Murray, 477 U.S. at 495-96, 106 S.Ct. at 2649-50
13
We except from this holding the claim of ineffective assistance of counsel for failure to raise the Batson claim at trial or on direct appeal. If petitioner were able to demonstrate that he was entitled under Keeney to an evidentiary hearing on his Batson claim, and if he were then able to demonstrate that that claim had merit (an issue which we do not reach in this appeal), then he might also be able to prevail on this related ineffective assistance claim. We therefore hold that the judgment of the district court dismissing this claim is vacated, and the matter is remanded to the district court for further proceedings not inconsistent with this opinion
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IN THE
TENTH COURT OF APPEALS
No. 10-13-00412-CR
DYLYN REED RICHARDS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 37254CR
MEMORANDUM OPINION
Dylyn Richards appeals from a conviction for intoxication manslaughter causing
the death of a peace officer. TEX. PEN. CODE ANN. §§ 49.08(a)(2), 49.09(b-2) (West 2011).
Richards complains that the judgment is erroneous because it references the incorrect
section of the penal code, affirmatively states that no appeal had been filed, improperly
awarded a specific amount of costs, and that the award of restitution had no factual basis
in the record. Because we find that the judgment was erroneous because it contained the
incorrect section of the penal code under which Richards was convicted, we modify the
judgment to reflect that Richards was convicted under sections 49.08(a)(2) and 49.09(b-2)
of the penal code. As modified, we affirm the judgment of the trial court.
Judgment Errors
In his first three issues, Richards complains of errors in the judgment entered in
this cause. In his first issue, Richards complains that the judgment entered is erroneous
because it reflects that he was convicted pursuant to section 49.07 of the penal code. The
State agrees that Richards was convicted pursuant to sections 49.08(a)(2) and 49.09(b-2)
and does not oppose the modification to the judgment. We sustain issue one.
In his second issue, Richards complains that the judgment is erroneous in that it
states that no notice of appeal had been filed. Richards was sentenced in open court on
August 30, 2013; however, the judgment was not signed until September 10, 2013.
Richards contends that a notice of appeal had been filed as of September 2, 2013. Our
review of the record indicates that while an attorney was appointed to represent Richards
in an appeal on September 4, 2013, no notice of appeal was actually filed until November
14, 2013.1 Because the record does not demonstrate that the judgment was incorrect on
the date it was signed by the trial court, we overrule issue two.
In his third issue, Richards complains that the judgment was erroneous because
there was insufficient evidence to support the specific amount of court costs because there
1A motion for new trial was timely filed on September 27, 2013, which extended the deadline for filing the
notice of appeal. TEX. R. APP. P. 26.2(a)(2).
Richards v. State Page 2
was no bill of costs. A bill of costs has subsequently been prepared and included in a
supplemental clerk's record setting forth the specific amount of costs to be paid by
Richards. The Court of Criminal Appeals has held that this is an appropriate procedure
and that once the bill of costs has been prepared, the specific amount can be challenged
by the methods set forth in the code of criminal procedure. See Johnson v. State, 423 S.W.3d
385, 396 (Tex. Crim. App. 2014); see also TEX. CODE CRIM. PROC. art. 103.008 (West 2006).
Richards does not further complain that any specific item of costs is erroneous in this
appeal. Because there is now a bill of costs in the record that corresponds with the
amount of court costs awarded, we overrule issue three.
Restitution
In his fourth issue, Richards complains that there was not a factual basis to support
the assessment of restitution. We review challenges to restitution orders under an abuse
of discretion standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel
Op.] 1980); Drilling v. State, 134 S.W.3d 468, 469 (Tex. App.—Waco 2004, no pet.). An
abuse of discretion by the trial court in setting the amount of restitution will implicate
due process considerations. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999).
Due process places three separate limits on the restitution a trial court may order: (1) the
amount must be just and supported by a factual basis within the record, (2) the restitution
ordered must be only for the offense for which the defendant is criminally responsible,
Richards v. State Page 3
and (3) the restitution must be for the victim or victims of the offense for which the
offender is charged. See Campbell, 5 S.W.3d at 696-97; Drilling, 134 S.W.3d at 470.
There must be sufficient evidence in the record to support the trial court's order.
Cartwright, 605 S.W.2d at 289. The standard of proof for determining restitution is a
preponderance of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 42.037(k). The
burden of proving the amount of loss sustained by the victim is on the prosecuting
attorney. Id.
In our consideration of whether the restitution order was proper, we note that no
complaint to the trial court is required to preserve error for challenges to the sufficiency
of the evidence; however, challenges to the propriety of trial court rulings must be
preserved for appeal. See Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002). In
other words, while complaints as to the "factual basis" of a trial court's order may be
raised for the first time on appeal, complaints as to the "appropriateness" of that order
must be preserved in the trial court. See id.
The jury determined the sentence to be imposed on Richards. After the jury was
discharged but prior to the trial court formally sentencing Richards, the State asked the
trial court to be heard on the issue of restitution. The State presented the trial court with
a letter from the Texas Municipal League Intergovernmental Risk Pool which set forth
the amount of restitution they were seeking to reimburse them for costs paid for the
vehicle and due to the victim's death. The State also stated the specific amount owed to
Richards v. State Page 4
the compensation to victims of crime fund. The trial court took the documents into his
chambers to review. The trial court then assessed the entire amount requested from the
Texas Municipal League and the amount owed to the compensation to victims of crime
fund as restitution. Richards did not object at any time to this procedure.
Where the trial court and the parties, without objection, treat certain proof as if it
had been admitted in evidence, it is not error for the trial court to consider the same in
reaching its verdict. See Ex parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977)
(affirming where court and parties treated governor's warrant in habeas corpus hearing
as if admitted into evidence); Killion v. State, 503 S.W.2d 765, 765-66 (Tex. Crim. App.
1973) (reviewing court permitted to consider defendant's stipulations to charged offenses
where considered by trial court in adjudicating guilt for theft and burglary, although
written stipulations not formally admitted into evidence); Richardson v. State, 475 S.W.2d
932, 932-33 (Tex. Crim. App. 1972) (finding that record showed court admitted exhibits
to support adjudication of guilt for burglary even though court did not specifically state
that exhibits were admitted into evidence). If Richards wanted to object to the amounts
as they were presented to the trial court, he was required to make a specific and timely
objection to the trial judge and to get a ruling from the trial court on the complaint. TEX.
R. APP. P. 33.1(a)(1)(A). Because he did not object to the trial court, Richards did not
preserve for appellate review his argument that the trial court did not conduct a formal
hearing or properly receive evidence. TEX. R. APP. P. 33.1(a).
Richards v. State Page 5
We must next determine whether a factual basis exists for the order of restitution.
The amounts set forth in the letter from the Texas Municipal League and the amount
owed to the compensation to victims of crime fund as stated by the State comprise the
amount ordered as restitution. Therefore, we find that there was a factual basis for the
award in the record. We overrule issue four.
Conclusion
Because we find that the judgment should be modified to reflect the correct
sections of the penal code under which Richards was convicted, we modify the judgment
of conviction to state that Richards was convicted pursuant to sections 49.08(a)(2) and
49.09(b-1) of the penal code. Having found no other reversible error, we affirm the
judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Modified, and affirmed as modified
Opinion delivered and filed April 9, 2015
Do not publish
[CRPM]
Richards v. State Page 6
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959 F.2d 231
38 Cont.Cas.Fed. (CCH) P 76,329
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.PRICELESS SALES AND SERVICE, INCORPORATED,Plaintiff-Appellant,v.UNITED STATES OF AMERICA, Defendant-Appellee.
No. 91-2550.
United States Court of Appeals,Fourth Circuit.
Argued: February 7, 1992Decided: April 1, 1992
ARGUED: Bruce Elliot Kauffman, KAUFFMAN & FORMAN, P.A., Towson, Maryland, for Appellant.
Geoffrey Robert Garinther, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: Jeffrey L. Forman, KAUFFMAN & FORMAN, P.A., Towson, Maryland, for Appellant.
Richard D. Bennett, United States Attorney, Baltimore, Maryland, for Appellee.
Before RUSSELL, HALL, and PHILLIPS, Circuit Judges.
PER CURIAM:
1
Appellant Priceless Sales and Service, Inc. (Priceless), a subcontractor on a Federal Highway Administration (FHA) construction project, brought suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA), to recover from the Government the $95,244.04 in losses it sustained when Jennings International Corporation (Jennings), the now-bankrupt general contractor for the project, failed to pay Priceless for the materials and labor Priceless supplied for the project. Priceless sought to recover these losses from the United States on the ground that federal contracting officers acted negligently in approving two individuals as sureties for the payment bond that Jennings was required by law to provide, and that the Government was therefore liable to Priceless for its losses when Jennings failed to pay and both the payment bond and the sureties supporting it proved to be essentially worthless. After a bench trial, the district court ruled that the federal contracting officers in question were performing a discretionary function when they determined the acceptability of the individual sureties, and consequently, the Government was not subject to suit under the FTCA, even if the federal contracting officers performed this discretionary function negligently. We agree and affirm.
2
* In 1988, Jennings was awarded a $5,000,000 construction contract by the FHA for the making of improvements to the Suitland Parkway, a federal highway located in Prince George's County, Maryland. Pursuant to the Miller Act, 40 U.S.C. § 270a,1 Jennings, as general contractor for the project, was required to provide the Government with a $2,500,000 payment bond for the protection of subcontractors furnishing labor and materials for the project. In addition, Jennings was required by government regulation2 to provide two sureties, either corporate or individual, each of whose net worth would equal or exceed the penal amount of the bond. The sureties were required to submit affidavits attesting to their present assets, liabilities, and net worth, and supported by certificates of sufficiency.3 Jennings had John B. Rich and Emmett Harper submit to the FHA the affidavits of surety required to execute the payment bond. The affidavits showed that the principal assets of both Rich and Harper consisted of their interests in the Tennessee Land & Development Corporation (TLDC), which purportedly owned large tracts of land in Tennessee. Rich's affidavit stated that he owned 699,500 shares of stock in TLDC, valued at $52,000,000, and Harper's affidavit stated that he owned 116,000 shares of stock in TLDC, valued at $8,630,400. Raul J. Corpion, president of Crown Savings and Trust, Dallas, Texas, signed certificates of sufficiency for both Rich and Harper.
3
Peggy DeWeese, the FHA contracting officer assigned to make the initial determination of the acceptability of Rich and Harper as sureties for the Jennings payment bond, stated at trial that the FHA decided to investigate the value of the sureties' stock in TLDC because if verified, it in itself would substantially exceed the penal amount of the payment bond. In the course of her investigation, DeWeese contacted Raul Corpion, the bank officer who had executed the certificates of sufficiency, and learned from him that he had no personal knowledge of the value of the TLDC stock, but relied instead upon representations made by the sureties themselves. It was then that DeWeese and her superiors decided to obtain from Rich and Harper additional documentation of their net worth, particularly with reference to their ownership of the TLDC stock and the value of the stock itself. The FHA requested and the sureties provided copies of representative stock certificates, a log of stock issuance, a balance sheet of the corporation, various deeds covering real estate held by TLDC, and a real estate appraisal. Although there were discrepancies in the documentation-the affidavit figures for the value of the TLDC stock were lower than the TLDC balance sheet figures, the real estate appraisal indicated some 100,000 fewer acres than the deeds purported to transfer to TLDC, and some of the deeds indicated that the fair market value of the land as only $10,000-DeWeese and her superiors concluded from the documentation that the proposed sureties were acceptable. Their determination was then reviewed by the Contract Review Board of the FHA, which concurred that Harper and Rich were acceptable sureties. As it turned out, however, the assets pledged by Harper and Rich were essentially worthless, and as a result, with Jenning now in bankruptcy, Priceless has not been paid for the labor and materials it supplied for the Suitland Parkway project.
II
4
Congress has provided that the provisions of the FTCA "shall not apply to ... [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). In United States v. Gaubert, 111 S. Ct. 1267 (1991), the Supreme Court held that an FTCA action could not be brought against the Government seeking recovery of losses resulting from decisions made by officials of the Federal Home Loan Bank Board in operating a failing thrift institution. "Day-to-day management of banking affairs," the Court concluded, "like the management of other businesses, regularly requires judgment as to which of a range of permissible courses is the wisest." Id. at 1275. Similarly, in its day-to-day operations, the FHA exercises judgment in considering the acceptability of sureties for bonds covering federal highway projects. While the FHA contracting officers charged with this task are required by 48 C.F.R. § 28.202-2 to "determine the acceptability" of the individual sureties, nothing in the regulation specifies what steps these officers must take in doing so.4 Consequently, the determination of acceptability is wholly within the discretion of the contracting officers, and they may go about this discretionary function as they, in their judgment, consider appropriate.
5
At their discretion, then, the contracting officers in the present case requested additional information from the sureties, evaluated this information, and made the decision that the sureties were acceptable. Priceless claims, however, that once it was learned that Corpion, the bank officer, did not have personal knowledge of the value of the sureties' assets, the FHA was required to reject the sureties, but Priceless can point to no nondiscretionary duty or function that the FHA violated-that is, no regulation requiring the FHA, under these circumstances, to reject Harper and Rich as sureties. Moreover, once it was learned that Corpion lacked personal knowledge of the value of the sureties' assets, the FHA undertook its own investigation. What additional information the FHA sought and how the FHA chose to evaluate this information was wholly within the discretion of the FHA, since there is no requirement that the FHA investigate persons proposed as a sureties. And to the extent that the FHA may have been negligent in carrying out its discretionary function of accepting Harper and Rich as sureties, the negligent performance of a discretionary function does not subject the Government to liability under the FTCA. Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1194 (D.C. Cir. 1986).
6
We conclude, therefore, that the FHA contracting officers here were exercising their discretion when they approved Rich and Harper as individual sureties under the required payment bond. The district court therefore properly held that this action is barred by the discretionary function exception to the Federal Tort Claims Act set forth in 28 U.S.C. § 2680(a).
AFFIRMED
1
40 U.S.C. § 270a provides:
Before any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States ... [a] payment bond with a surety or sureties satisfactory to [the officer awarding the contract] for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.... Whenever the total amount payable by the terms of the contract shall be more than $5,000,000 the said payment bond shall be in the sum of $2,500,000.
2
The applicable regulation, 48 C.F.R. § 28.202-2, provides:
(a) Individual sureties are acceptable for all types of bonds except position schedule bonds. The contracting officer shall determine the acceptability of individuals proposed as sureties. At least two individual sureties must execute the bond and the net worth of each individual must equal or exceed the penal amount of the bond. Contracting officers shall consider the number and amounts of other bonds upon which a proposed individual surety is bound, and the
status of the contracts for which such bonds were furnished, in determining the acceptability of the individual surety....
(b) Each individual surety shall execute Standard Form 28. The information provided is helpful in determining the net worth of proposed individual sureties.
3
"The certificates of sufficiency shall be signed by an officer of a bank or trust company, a judge or clerk of a court of record, a United States district attorney or commissioner, a postmaster, a collector or deputy collector of internal revenue, or any other officer of the United States acceptable to the department or establishment concerned." Standard Form 28 (Affidavit of Individual Surety). The person signing the certificate of sufficiency certifies that "the surety named herein is personally known to me; that, in my judgment, said surety is responsible, and qualified to act as such; and that, to the best of my knowledge, the facts stated by said surety in the foregoing affidavit are true." Id
4
Except that contracting officers"shall consider the number and amounts of other bonds upon which a proposed individual surety is bound, and the status of the contracts for which such bonds were furnished, in determining the acceptability of the individual surety." 48 C.F.R. § 28.202-2(a). This requirement is not at issue in the present case
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699 F.2d 1161
*U. S.v.McKamie
82-1253
UNITED STATES COURT OF APPEALS Fifth Circuit
2/14/83
1
N.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a); 5th Cir. R. 18.
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615 F.3d 1318 (2010)
Marcus R. JOHNSON, Petitioner-Appellant,
v.
Steven UPTON, Respondent-Appellee.
No. 09-16090.
United States Court of Appeals, Eleventh Circuit.
August 23, 2010.
*1321 Brian S. Kammer and Thomas H. Dunn (Court-Appointed), GA Resource Ctr., Atlanta, GA, for Johnson.
Patricia Beth Attaway Burton, State of GA Law Dept., Atlanta, GA, for Upton.
Before CARNES, HULL and PRYOR, Circuit Judges.
HULL, Circuit Judge:
Marcus Ray Johnson, a Georgia prison inmate under a death sentence, appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The issues on appeal concern whether Johnson's trial counsel were ineffective in the penalty phase as to evidence of Johnson's life history, escape from pretrial custody, and future dangerousness. After review and oral argument, we conclude the Georgia state court's denial of Johnson's ineffective counsel claims was not based on an unreasonable determination of the facts or an unreasonable application of clearly established federal law. Thus, we affirm.
I. PRETRIAL BACKGROUND
A. The Crime
On March 24, 1994, Johnson raped, murdered, and mutilated Angela Sizemore a few hours after meeting her at a bar in Albany, Georgia. See Johnson v. State, 271 Ga. 375, 519 S.E.2d 221, 225 (1999). The Georgia Supreme Court set forth the evidence against Johnson:
[T]he victim, Angela Sizemore, met Johnson in a west Albany bar called Fundamentals between 12:30 and 1:30 a.m. on March 24, 1994. Ms. Sizemore had been to a memorial service for an acquaintance the previous day, and she had been drinking so heavily the bar had stopped serving her. Johnson was wearing a black leather jacket, jeans, black biker boots, and a distinctive turquoise ring. According to a witness, Johnson was angry and frustrated because another woman had spurned his advances earlier in the evening. The bar owner and its security officer (who both personally knew Johnson) testified that they saw Johnson and Ms. Sizemore kissing and behaving amorously. [At approximately 2:30 a.m.] Johnson and Ms. Sizemore left Fundamentals together; the bartender handed Ms. Sizemore's car keys directly to Johnson. They were seen walking towards Sixteenth Avenue.
At approximately 8:00 a.m. on March 24, 1994, a man walking his dog found Ms. Sizemore's white Suburban parked behind an apartment complex in east Albany, on the other side of town from Fundamentals. Ms. Sizemore's body was lying across the front passenger seat. ...
*1322 Four people testified that they saw Johnson about an hour before the body was found. Two witnesses testified that [at around 7:00 a.m.] they saw him walk from the area where the victim's Suburban was parked through an apartment complex to a bus stop. He boarded a bus and asked if the bus would take him to the Monkey Palace (a bar where Johnson worked) in west Albany. Three witnesses, including the bus driver, identified Johnson as being on the bus (one of the witnesses who saw Johnson walk through the apartment complex boarded the same bus as he did). Two witnesses stated that their attention was drawn to Johnson because that area of Albany is predominantly African-American, and it was extremely unusual to see a Caucasian there at that time of day. All the witnesses testified that Johnson's clothes were soiled with dirt or a substance they had assumed to be red clay. The witnesses gave similar descriptions of his clothing; in court, two witnesses who sat near Johnson on the bus identified his jacket, boots and distinctive turquoise ring.
The police determined that Ms. Sizemore was murdered in a vacant lot near Sixteenth Avenue in west Albany. ... The vacant lot is about two blocks from Fundamentals and about half a block from the house where Johnson lived with his mother.
A friend of Johnson testified that after he called her early on March 24, she picked him up at his house at 9:30 a.m. and took him to her home, where he slept on her couch for several hours. Johnson then told her he wanted to take a bus to Tennessee and that he needed her to go to the Monkey Palace to pick up some money he was owed. At his request, she dropped him off near a church while she went to get the money. The police were waiting for Johnson to show up, and they returned with the friend and arrested Johnson. Before they told him why they were arresting him, he blurted, "I'm Marcus Ray Johnson. I'm the person you're looking for."
DNA testing revealed the presence of the victim's blood on Johnson's leather jacket. Johnson had a pocketknife that was consistent with the knife wounds on the victim's body. He had scratches on his hands, arms, and neck. In a statement, Johnson said he and the victim had sex in the vacant lot and he "kind of lost it." According to Johnson, the victim became angry because he did not want to "snuggle" after sex and he punched her in the face. He stated he "hit her hard" and then walked away, and he does not remember anything else until he woke up after daybreak in his front yard. He said, "I didn't kill her intentionally if I did kill her."
Id. at 225-26.
The condition of Sizemore's body evidenced Johnson's extreme brutality during her murder. Johnson sexually assaulted Sizemore with the limb of a pecan tree, which was shoved into her vagina until it tore through the back wall of her vagina and into her rectum. Sizemore was alive during the sexual assault.
Johnson also cut and stabbed Sizemore 41 times with a small, dull knife. Sizemore had grip marks (round or oval bruises caused when a person is grabbed tightly) on her upper extremities, knees, thighs, ankles, and the inside of her arms. She had severe bruising, abrasions, and other evidence of blunt trauma about her body, especially her face, head, arms, ankles, and feet. Sizemore was alive during this attack.
After mutilating and killing Sizemore, Johnson dragged her body from the attack area back to her car. Sizemore's body was discovered clothed, with her shirt pulled up and tied in a knot just below the breast *1323 area. Her pants were around her legs and her bra was tied in a knot around her right thigh and protruded from the pants. Dirt and sand drag marks were found on the side of her body and grass was found attached to her face. Johnson had dragged Sizemore's body from the attack area back to her car by using the knotted loops of her shirt and bra as handles.
B. Appointment of Counsel
The state trial court provided Johnson with two exceptionally well-qualified criminal defense attorneys. Four days after Johnson's arrest, the state trial court appointed experienced criminal trial attorney Ronnie Joe Lane.[1] Lane had practiced criminal law for almost 20 years and handled hundreds of criminal cases, including about 40 murder trials. In all four of his previous capital cases, Lane secured his clients life sentences. Lane tried two death penalty cases to life sentences and pled two other capital cases to life sentences.
On August 15, 1994, the State announced its intent to seek the death penalty. Johnson did not go to trial until almost four years later, in March 1998. In June 1997, at Lane's request, the state trial court appointed attorney Tony Jones to assist Lane.[2] Jones had practiced criminal law for 14 years and had handled numerous felony cases, including at least two murder cases. Lane and Jones served as co-counsel at trial.
C. Johnson's Transfer to Miller County Jail
Following his arrest, Johnson was housed in the overcrowded Dougherty County jail in Albany, Georgia.[3] On June 5, 1994, Johnson was taken to a hospital for treatment after other inmates beat him.[4] Lane knew that Johnson received other beatings from jail inmates.[5] Lane saw Johnson had suffered injuries, but they were "mainly bruises and lacerations,... not anything that would have required him to be hospitalized." Johnson gave Lane handwritten threatening notes that Johnson received in the Dougherty County jail. Lane "knew it wasn't a healthy situation for [Johnson] to be there."
Attorney Lane met with Johnson at the jail on June 6, 1994, to discuss the jail conditions and his beating. Lane later met with the sheriffs of Dougherty County and nearby Miller County to discuss transferring Johnson to the Miller County jail. Lane told the Dougherty County sheriff about Johnson's abuse in the Dougherty County jail. Lane also preferred that Johnson be housed in the Miller County *1324 jail because it was closer to Lane's office in Donalsonville, Georgia.
After four months in the Dougherty County jail and because of Lane's request, Johnson was transferred to the Miller County jail in August 1994.
D. Johnson's Escape
The Miller County jail was a small facility, and on the evening of October 2, 1994, the only deputy on duty was 76-year-old Brooks Sheffield. That evening, Johnson asked Deputy Sheffield if he could use the jail telephone. When Sheffield brought Johnson to the telephone, Johnson grabbed Sheffield's gun, struck Sheffield in the head with the butt of the gun, and escaped the jail. The next night, Johnson was found and taken back into custody.
Sheffield's head injury required 21 staples to close, plus follow-up care. X-rays showed no skull fracture or intracranial bleeding. There were no brain contusions. The CT scan "was deemed normal for a patient in Mr. Sheffield's age range." About seven months later, on April 27, 1995, Sheffield suffered a stroke. He died in June 1995.
Upon Johnson's recapture, he was returned to the Miller County jail, where he remained until mid-November 1994. Johnson was then transferred back to a jail annex in Dougherty County, which was a separate, renovated building across the street from the old jail's cell blocks where Johnson was before. In January 1995, the new Dougherty County jail opened and Johnson was moved there. Johnson remained in the new Dougherty County jail until his trial ended.
According to Lane's billing records, on October 24, 1994 he met with Johnson at the Miller County jail and "discussed case, reviewed impact of escape and need for no further violations." This meeting, together with thirty miles' travel, took 3.2 hours. Lane later discussed the escape with an assistant district attorney. It is undisputed that Johnson never told Lane he escaped because he feared going back to the old Dougherty County jail.
E. Trial Counsel's Penalty-Phase Preparation
Lane first met with Johnson on the day Lane was appointed, March 28, 1994. Lane had good contact with Johnson and "visited him fairly regularly in jail." Johnson called Lane at Lane's home on average once a week throughout the four-year representation.
During the first approximately three years after his appointment, Lane chose to focus his efforts on: (1) challenging Johnson's tape-recorded statement to police, which Johnson claimed, and Lane believed, was edited by police officers to erase Johnson's request for an attorney; (2) trying to suppress eyewitness identifications of Johnson and certain items of physical evidence; (3) "interact[ing] with various experts who were assisting [Lane] with these matters" and other experts who assisted Lane "on forensic matters related to Ms. Sizemore's death and the crime scenes"; and (4) "preparing and litigating numerous pre-trial motions."[6]
Johnson "maintained his innocence throughout" the case. Lane felt Johnson had a chance to be acquitted because of "the circumstantial nature of the evidence against Mr. Johnson and the lack of conclusive physical evidence tying him to a homicide." Lane testified:
Compared to other death penalty cases where the evidence is just overwhelming *1325 that the person did it, this was not such a case. You would try that case totally differently. You'd forget about did he do it. And you start trying it about, well, why did he do it. This case was not like that.
As part of his pretrial preparation, Lane consulted with other criminal defense lawyers and with experienced capital attorneys at the Southern Center for Human Rights and the Multicounty Public Defender's Office, spoke with a mitigation specialist, and attended several death penalty seminars that stressed the importance of mitigation and the defendant's social history.
Lane began his penalty-phase investigation in earnest in 1997, about a year before trial, although he may have had discussions with Johnson in 1994 or 1995 about "what had happened to [Johnson] in his life." As detailed later, Lane discussed Johnson's background and marital, social, employment, and medical history not only with Johnson but also with his parents, brother, former girlfriend, and others. Two investigators were assigned to assist Lane.
Lane knew the State would use evidence of Johnson's escape in sentencing. Lane believed that "the escape incident could prove to be devastating to Mr. Johnson's case if [he] proceeded to a sentencing phase" because, in Lane's experience, "future dangerousness is of great concern to juries in capital cases, and an escape clearly raises the specter of future dangerous behavior in the jury's eyes." Lane felt the evidence of Johnson's escape "would be some of the most damaging evidence presented."
As noted earlier, Lane discussed the escape with Johnson for almost three hours. Although Johnson now alleges he escaped due to fear of going back to the old Dougherty County jail, Johnson never told Lane this. Lane acknowledged that he never asked Johnson specifically what made him escape. Nonetheless, it is undisputed that Johnson never told Lane that he escaped because of his fear of going back to the old Dougherty County jail. In fact, even after the escape, Johnson was taken back to the Miller County jail.
II. TRIAL: STATE'S WITNESSES AT PENALTY PHASE
From March 23 to April 7, 1998, Johnson was tried on charges of malice murder, felony murder, aggravated assault, aggravated battery, and rape. The jury found Johnson guilty of all charges.
At the penalty phase, the State called eleven witnesses. Lynwood Houston, a sheriff's deputy in Miller County, investigated Johnson's escape and testified about it. The jailer on duty, Sheffield, allowed Johnson to come into the control room to use the telephone. Once there, Johnson snatched the pistol out of Sheffield's holster and hit Sheffield in the head with it. Johnson fled the jail, taking Sheffield's pistol with him.
On cross-examination, Deputy Houston admitted that Johnson committed no crimes after his escape that Houston knew of, and that Johnson did not try to run or resist arrest when he was recaptured. Deputy Houston did not know how long Brooks Sheffield was in the hospital after Johnson hit him with the gun, but Sheffield did return to work for the county after the assault. Deputy Houston knew that after his injury, Sheffield did some work for the city too, and may have directed the public works efforts around the courthouse square.
Dr. Peggy Rummel, the emergency room physician who treated Sheffield, testified that Sheffield "came to the emergency room with his head bleeding, and he stated at the time that he had been struck *1326 on his head with a gun butt during an assault by an escaping prisoner." Sheffield was 76 years old but was in good health except for his head injury. Dr. Rummel examined Sheffield, closed the wound, and sent Sheffield to get a CT scan "to make sure that no brain damage had resulted from the blow to his head." The injury came from a "pretty significant blow" that "caught the skin and had just literally scalped and peeled it down to where he had exposed bone and this was bleeding very heavily." It required 21 staples to close. Dr. Rummel opined that the injury resulted from a glancing blow and, with the amount of force that was used, a direct blow "would have crushed [Sheffield's] skull."
Dr. Rummel, who knew Sheffield personally, testified that after this incident, Sheffield "was just not the same man any more." Sheffield was "a very unhappy man afterwards" and "stayed home and stayed to himself." Seven months after Johnson's escape, Sheffield "suffered a stroke on that side and it was a bleed of one of the major arteries in that area and it had disastrous consequences for him." Sheffield died several weeks later. Dr. Rummel testified, though, that she "[could] not in all honesty tell you that there was a one hundred percent no doubt about it direct relationship" between the head injury and Sheffield's stroke seven months later.[7] On cross-examination, Dr. Rummel admitted that Sheffield drove himself to the hospital after receiving the head injury and that the CT scan taken after the assault revealed no internal bleeding in Sheffield's brain.
The State called Johnson's former probation officers, who testified Johnson received probation in September 1984 after pleading guilty to financial transaction card fraud, four counts of financial transaction card theft, and theft by receiving stolen property.[8] One officer testified that of the thousand persons he had supervised as a parole officer, Johnson's attitude was one of the ten worst. Johnson was "[v]ery resistant to supervision" and was rated a "maximum risk individual." Another officer confirmed Johnson had a negative attitude and failed to comply with the terms of his probation.
The State closed its penalty-phase case with powerful victim impact testimony from five witnesses: Sizemore's then-eight-year-old daughter, mother, two sisters, and stepfather. The State also showed the jury a video of the scene where Sizemore's body was found.
Sizemore's daughter described getting out of bed one morning when she was four years old and realizing her mother wasn't there and would never come back. She testified she still cried in school, and she wanted the man who killed her mother punished for taking her mother away from her.
Sizemore's mother and stepfather described Sizemore's kindness, generosity, *1327 adventurous spirit, and passion for being a mother. Sizemore's mother testified that Sizemore's death "left a hole in our hearts that time won't heal." She described her emotional struggle in raising her eight-year-old granddaughter while wondering if she will "learn to hate because of this" or "be distrusting or holding emotions of this trauma inside to the point that it destroys her ability to be a loving person."
Sizemore's sisters testified that Sizemore was their role model and best friend. Sizemore was fearless and passionate and the most dedicated mother they knew. Sizemore was full of life and did not want to die. One sister testified about how heartbreaking it was to see the wistful look on Sizemore's daughter's face when she looked at other families. This sister wished it was she who had died instead of her sister because "it would have been easier than the daily hell I go through thinking about the last hours of my sister's life."
III. TRIAL: DEFENSE'S WITNESSES AND CLOSING ARGUMENT AT PENALTY PHASE
The defense called four witnesses. The defense's plan was primarily to argue residual doubt (also called lingering doubt). Given there were no direct eyewitnesses to the murder, Lane believed lingering doubt would be paramount in the penalty phase. He stated, "Lingering doubt was the whole thing in this case. Without it, I didn't see any hope."
Reverend Bobby Moye was the pastor of Johnson's church and a friend of Johnson's family. Rev. Moye testified that he had known Johnson since childhood and had baptized Johnson, and that Johnson was a "fine boy" who was "very kind" and "very involved in church." On cross-examination, Rev. Moye stated that Johnson came to church as an adult, but Rev. Moye "could not accurately say how faithful he was or how dependable."
Reverend Jimmy O. Hall, Jr., Johnson's middle-school physical education teacher, testified that Johnson was "one of the students that stood out" and was "very dutiful" and "a very good student as far as participation." Johnson was "a pretty good student," was "always cooperative," and did not cause trouble. Johnson "would always worry ... about could I take the equipment out and that kind of thing. May I lead exercise, things of that nature, may I be captain of the team, things of that nature." Rev. Hall sought out defense counsel and offered to testify on Johnson's behalf "[b]ecause I knew Ray Johnson ... because I feel he's a good person." Rev. Hall admitted he did not know Johnson as an adult.
Brian Sherman, a friend of Johnson's, testified about his common interests with Johnson: (1) Johnson was a cabinetmaker and Sherman appreciated Johnson's artistry; and (2) Johnson and Sherman both enjoyed dancing. Sherman asked the jury not to sentence Johnson to death.
Johnson's mother, Rosemary Johnson, begged the jury "not [to] put [her] son to death." Rosemary Johnson testified that her son's arrest and trial had "destroyed [her] whole life. ... I've had to carry the burden right by myself ... and I have been right here with my child, and I will be with my child until my dying day. ... Or to his dying day."
Lane spent most of his penalty-phase closing argument in an attempt to create lingering doubt. He told the jurors that although they decided Johnson was guilty, they "should not vote to kill Ray Johnson... because this is a circumstantial evidence death penalty murder case only." Lane argued the jurors "should have some doubt, some doubt, whatever, ever so slight, whatever doubt, some doubt." *1328 Lane posed a number of hypothetical questions he argued that the State had not satisfactorily answered, and asked the jurors whether they were sure enough in their verdict, "so sure, sure enough based on this circumstantial evidence, to vote to take a human being's life?" Lane emphasized that the death penalty is irreversible.
Afterward, Lane argued that the State "would have you believe that [Sheffield] died as a result of this wound that he got on his head" but "[t]hey have no proof of that." Lane pointed out that Sheffield had returned to work for the city and the county after the attack. Lane argued none of the State's other penalty-phase evidence was sufficient to justify a death sentence.
In Jones's portion of the closing argument, he discussed Johnson's life, emphasizing Johnson's helpfulness as a child and his church attendance. Jones also argued that Dr. Rummel would not have seen Sheffield much after he received his head injury because Sheffield was working at the hospital through his capacity as a Miller County deputy, and he was "no longer in that capacity with the county" after Johnson's escape. Johnson argued that the State's suggestion that Johnson killed Sheffield was "a most tragic play on the facts" and "unfair."
Jones also plied a residual-doubt argument, telling the jury that the State's case was circumstantial and that although the jury found Johnson guilty beyond a reasonable doubt, "I'm begging you, before we execute this man, let us take that to a little higher level." Jones asked the jury to consider the "unanswered questions during the course of the trial."
IV. SENTENCE AND DIRECT APPEAL
The jury returned a unanimous verdict fixing Johnson's sentence at death. The jury found beyond a reasonable doubt the existence of four statutory aggravating circumstances: (1) Johnson murdered Sizemore while he was engaged in the commission of another capital felony (i.e., rape); (2) Johnson murdered Sizemore while he was engaged in the commission of aggravated battery; (3) Johnson's murder of Sizemore was outrageously and wantonly vile, horrible, and inhumane in that it involved torture and depravity of mind; and (4) Johnson's murder of Sizemore was outrageously and wantonly vile, horrible, and inhumane in that it involved an aggravated battery. The state trial court sentenced Johnson to death on the malice murder conviction in accordance with the jury's recommendation. The state trial court sentenced Johnson to life imprisonment for the rape and to 20 years' imprisonment for the aggravated battery.[9]
The Georgia Supreme Court affirmed Johnson's convictions and sentences. Johnson, 519 S.E.2d at 225. The United States Supreme Court denied Johnson's petition for certiorari. Johnson v. Georgia, 528 U.S. 1172, 120 S.Ct. 1199, 145 L.Ed.2d 1102 (2000).
V. STATE HABEAS PROCEEDINGS
After his direct appeal ended, Johnson obtained new counsel (who still represents *1329 Johnson) and filed a state habeas petition. Johnson's state petition claimed, among other things, that he received ineffective trial counsel because counsel did not adequately investigate and present: (1) evidence of the circumstances surrounding Johnson's escape from the Miller County jail; (2) the cause of Deputy Sheffield's death; (3) expert testimony and statistical evidence on Johnson's likelihood of future dangerousness; and (4) mitigating evidence from Johnson's life history.
The state habeas court held a three-day evidentiary hearing on June 24-26, 2002. Johnson's new counsel presented testimony from five witnesses, affidavits from thirty-four additional witnesses, and documentary exhibits. The State called six witnesses and also introduced documents.
The state habeas court issued a detailed 36-page order denying all of Johnson's claims. The state habeas court stated, "The court finds that the petitioner has failed to establish deficiency and resulting prejudice as to any of his ineffective assistance of counsel claims." We discuss the relevant findings of the state habeas court in our later analysis of Johnson's claims in this appeal.
The Georgia Supreme Court denied Johnson's application for a certificate of probable cause to appeal the denial of his state habeas petition. The United States Supreme Court denied Johnson's certiorari petition. Johnson v. Terry, 547 U.S. 1059, 126 S.Ct. 1661, 164 L.Ed.2d 403, reh'g denied, 547 U.S. 1176, 126 S.Ct. 2349, 164 L.Ed.2d 862 (2006).
VI. FEDERAL HABEAS PROCEEDINGS
On June 7, 2006, Johnson filed a 28 U.S.C. § 2254 petition in federal district court. On September 30, 2009, the district court denied Johnson's petition.
The district court granted Johnson a COA on three ineffective trial counsel claims as to the penalty phase: (1) whether "counsel was ineffective for failing to mitigate the circumstances around [Johnson's] escape from the Miller County Jail"; (2) whether "counsel was ineffective for failing to rebut or preclude testimony regarding the death of jailer Brooks Sheffield"; and (3) whether "counsel was ineffective in failing to rebut the state's future dangerous[ness] argument by using statistical and expert testimony." This Court expanded the COA to include a fourth claim: "[w]hether [Johnson's] trial counsel was ineffective in failing to investigate or present `life history mitigation testimony' in the penalty phase."
VII. STANDARD OF REVIEW
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "constrains our review of legal questions decided on the merits in state court." Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir.2010).
Under AEDPA, a federal court may not grant a habeas corpus application "with respect to any claim that was adjudicated on the merits in State court proceedings," 28 U.S.C. § 2254(d), unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).
Berghuis v. Thompkins, 560 U.S. ___, 130 S.Ct. 2250, 2259, ___ L.Ed.2d ___ (2010). The Supreme Court has described this standard as "a highly deferential" one that "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. ___, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010). However, where *1330 the petitioner makes the required § 2254(d) showing as to a state court decision, we owe no AEDPA deference to that decision and instead review the claim de novo. Jones v. Walker, 540 F.3d 1277, 1288 & n. 5 (11th Cir.2008) (en banc), cert. denied, ___ U.S. ___, 129 S.Ct. 1670, 173 L.Ed.2d 1039 (2009); McGahee v. Ala. Dep't of Corr., 560 F.3d 1252, 1266 & n. 20 (11th Cir.2009).
"We review de novo the district court's decision about whether the state court acted contrary to clearly established federal law, unreasonably applied federal law, or made an unreasonable determination of fact." Reed v. Sec'y, Fla. Dep't of Corr., 593 F.3d 1217, 1239 (11th Cir.2010), petition for cert. filed (U.S. Jun. 7, 2010) (No. 09-11314). Because Johnson raised the ineffective trial counsel claims at issue here in his state habeas petition, and the Georgia Supreme Court denied Johnson's application for a certificate of probable cause to appeal the denial of that petition, the relevant state court merits decision in this case is the state habeas court's order. See Thompkins, 130 S.Ct. at 2259 (stating, where state supreme court denied discretionary review, that "[t]he relevant state-court decision here is the Michigan Court of Appeals' decision ... rejecting [Petitioner's] Miranda and ineffective-assistance-of-counsel claims on the merits").
VIII. ANALYSIS
All of Johnson's claims on appeal assert ineffective assistance of his trial counsel. Ineffective counsel claims are governed by the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense.... Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687, 104 S.Ct. at 2064.
For the performance prong, the governing standard is objectively reasonable attorney conduct under prevailing professional norms:
As to counsel's performance, "the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices." Bobby v. Van Hook, 558 U.S. ___, 130 S.Ct. 13, 17, 175 L.Ed.2d 255 (2009) (quotation marks omitted). Thus, to establish deficient performance, a defendant must show that his counsel's conduct fell "`below an objective standard of reasonableness' in light of `prevailing professional norms'" at the time the representation took place. Id. at 16, 130 S.Ct. 13 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65). In assessing the reasonableness of counsel's performance, courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quotation marks omitted). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." *1331 Id. at 690-91, 104 S.Ct. at 2066.
Reed, 593 F.3d at 1240.
For the prejudice prong, the test is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. "To assess that probability, we consider the totality of the available mitigation evidence both that adduced at trial, and the evidence adduced in the habeas proceeding and reweigh it against the evidence in aggravation." Porter v. McCollum, 558 U.S. ___, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (quotation marks and brackets omitted); see Sears v. Upton, ___ U.S. ___, 130 S.Ct. 3259, 3267, 177 L.Ed.2d 1025 (2010) ("A proper analysis of prejudice under Strickland would have taken into account the newly uncovered evidence ..., along with the mitigation evidence introduced during Sears' penalty phase trial, to assess whether there is a reasonable probability that Sears would have received a different sentence after a constitutionally sufficient mitigation investigation.").
A. Trial Counsel Performance: Evidence of Johnson's Escape
Johnson claims Lane unreasonably failed to investigate the circumstances of, and reasons for, Johnson's escape from the Miller County jail. Johnson contends a reasonable investigation would have revealed extenuating circumstances (Johnson feared a return to the Dougherty County jail, where he was repeatedly beaten and abused) that Lane should have presented to rebut the State's argument that the escape and attack on Sheffield showed Johnson would be a danger in prison.
The state habeas court concluded that counsel's performance was not deficient. The state habeas court expressly found that Johnson did not tell Lane about this now-alleged motivation to escape, so Lane had no reason to investigate further:
The Petitioner contends that counsel failed to mitigate the damage that petitioner's escape prior to trial [caused] by putting forward the claim that petitioner was in some way justified in this escape because of his fear of the Dougherty County Jail. During the hearing, counsel for the respondent asked Mr. Lane (now Judge Lane), "Did he ever tell you he escaped from the jail because he was afraid he was going to have to go back to the Dougherty County Jail?" The answer given was, "No, I never asked him."
. . . .
The court also finds that the evidence in this case shows that prior to trial, Petitioner never told trial counsel that he assaulted the guard and escaped because of his alleged fear of being returned to the "old" Dougherty County Jail. ...
. . . .
An attorney does not render ineffective assistance by not discovering mitigating evidence that his client did not mention to him.
This decision is not contrary to, or based on an unreasonable application of, clearly established Supreme Court precedent. Nor is it based on an unreasonable determination of fact.
In Strickland, the Supreme Court explained that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions" because "[c]ounsel's actions are usually based, quite properly on ... information supplied by the defendant." 466 U.S. at 691, 104 S.Ct. at 2066. Thus, "inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions." Id.; see Peterka *1332 v. McNeil, 532 F.3d 1199, 1208-09 (11th Cir.2008) (concluding counsel's performance was not deficient for not learning of evidence that petitioner declined an opportunity to escape with his cellmates between penalty phase and trial court's sentencing because, even if counsel had duty to explore further mitigation at this point, petitioner should have known this was evidence that counsel would be interested in as mitigation but petitioner did not tell counsel about it).
Here, it is undisputed that after Johnson's escape and recapture, Lane met with Johnson in person for approximately three hours, at which time Lane "reviewed [the] impact of [Johnson's] escape and [the] need for no further violations." It is also undisputed that Johnson did not either at this three-hour meeting or at any other time during the four years before trial tell Lane that he escaped from the Miller County jail because he feared being returned to the Dougherty County jail. Thus, Johnson did not tell Lane the now-purported reason for his escape despite having an extensive discussion about the impact that the escape would have at trial. Given the charges against him, Johnson was facing a potential death sentence and, at a minimum, life imprisonment. It is not objectively unreasonable for an attorney to assume that if there were some powerful reason for his client's escape from pretrial detention other than the usual reason for escapes (not wanting to be convicted and in jail), the client would have told him that reason when they discussed the impact the escape evidence would have at trial.
Nor did Lane have any reasonable basis for believing further investigation into the unrevealed reason for Johnson's escape would be likely to yield fruitful information. Although Lane knew that Johnson had been beaten by other inmates at the Dougherty County jail, Johnson escaped from the Miller County jail, where he was treated well. And there was no actual transfer of Johnson in the offing that Lane would have or could have known about.[10] Moreover, after his escape Johnson was taken back to the Miller County jail.[11] Lane cannot be deficient for failing to investigate whether Johnson escaped because he was afraid of a non-existent jail transfer when "there is no indication that [Johnson] ... gave [Lane] reason to believe that such evidence might exist." Lambrix v. Singletary, 72 F.3d 1500, 1505 (11th Cir.1996).
Johnson argues the state habeas court's conclusion that Lane did not perform unreasonably is contrary to Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), in which the Supreme Court concluded petitioner's trial counsel were deficient in failing to review the court file on his prior conviction that counsel knew the State intended to use at trial. Id. at 383-84, 125 S.Ct. at 2464. But Rompilla is materially different because it *1333 concerned trial counsel's failure to review a readily available public document that the State announced at least twice that it would rely upon at trial (i.e., the court file on the defendant's prior conviction, which included (1) psychological test results pointing to schizophrenia and other disorders, (2) test scores showing defendant's third-grade cognition level, and (3) a corrections officer's evaluation indicating defendant was reared in a slum, came early to the attention of juvenile authorities, quit school at 16, and abused alcohol). Id. at 383-87, 390-91, 125 S.Ct. at 2464-68. And Rompilla involves the failure of a lawyer to make any inquiry as to a specific, known, and available piece of evidence, not the failure to make a more open-ended inquiry about a prior event. See id. at 389, 125 S.Ct. at 2467 ("Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there.").
Here, Lane spoke to Miller County officials, an assistant district attorney, and Johnson himself about the escape and attack. Johnson's claim, though, is that Lane unreasonably failed to investigate and present evidence of Johnson's motivation for the escape and attack. Johnson first alleged this personal motivation in the state collateral proceedings. His alleged motivation was not evidence in the possession of the State, nor was it in any public document. It was something within Johnson's unique knowledge, and it was something an attorney could reasonably assume would be shared with him, if important, during an hours-long discussion of the impact of the escape.[12] Consequently, the state habeas court's decision that Lane's investigation of Johnson's escape and failure to present evidence of the abuse Johnson received at the Dougherty County jail were not objectively unreasonable is not contrary to or an unreasonable application of the facts or clearly established federal law.
B. Trial Counsel Performance: Evidence of Sheffield's Death
Johnson next claims his trial counsel performed deficiently by inadequately rebutting the State's suggestion that Sheffield's head injury caused Sheffield's death eight months later. The state habeas court denied this claim.
The State sent Lane copies of Sheffield's medical records about his October 1994 head injury and Sheffield's June 1995 death certificate, which did not mention *1334 the head injury. Rather, the death certificate listed the cause of death as congestive heart failure and a stroke. Lane was in Miller County frequently after the escape, and he saw Sheffield at work supervising community service workers. Lane reviewed the medical records on Sheffield's head injury and used them to cross-examine the State's witnesses in the penalty phase.
In concluding there was no deficient performance, the state habeas court pointed out that Johnson's trial counsel showed: (1) Sheffield drove himself to the hospital; (2) Sheffield continued to work after the injury; and (3) Dr. Rummel admitted she could not say whether there was a causal connection between Sheffield's head injury and his death. Lane forced Dr. Rummel to admit that she ordered a CT scan for Sheffield, which "showed no bleeding" in Sheffield's brain. Dr. Rummel also admitted she was "[o]nly indirectly" aware of the CT scan results i.e., she knew it showed no bleeding but presumably had not viewed the scan herself. And Lane elicited testimony from Deputy Houston that after the head injury Sheffield returned to work for the county and the city and may have directed the public works efforts around the courthouse square.
Johnson contends Lane's performance was deficient because he did not (1) obtain the April 1995 medical records relating to Sheffield's stroke, and (2) retain a medical expert to testify there was no causal connection between the head injury and the stroke.
We conclude the state habeas court's decision that Lane's performance was not deficient did not involve an unreasonable determination of the facts or unreasonable application of clearly established federal law. First, there was no prior notice that Dr. Rummel would testify as she did. Lane said he was surprised. Second, Lane did take meaningful steps to rebut Dr. Rummel's suggestion that Johnson's attack on Sheffield contributed to his stroke, by eliciting testimony that Sheffield drove himself to the hospital and returned to work after the injury and that the CT scan taken after the injury revealed no bleeding. This was effective rebuttal, particularly given that the majority of Dr. Rummel's testimony concerned her opinion that Johnson's attack on Sheffield was brutal and his injury serious, not her opinion (which she, and the district attorney, admitted was not certain) that the injury may have caused Sheffield's stroke the next year.[13] Lane could not deny that Johnson caused Sheffield's head injury, and evidence of the attack and escape was highly aggravating. A reasonable attorney in Lane's position could have concluded that to focus too much time and attention on the long-term effect of Sheffield's injury would be counterproductive.[14]
Third, Sheffield's death certificate would not put a reasonably competent attorney on notice of a need to do more discovery or to obtain testimony from a medical expert. *1335 The medical records and CT scan on the head injury, which Lane had, showed a five- to six-inch laceration on Sheffield's head but no skull fracture or intracranial bleeding. The death certificate, which was signed by a doctor other than Dr. Rummel, indicated Sheffield died of "congestive heart failure" and a "hemorrhagic stroke Right brain." There was no mention of the head injury, plus Sheffield was 77 years old (which the death certificate indicated). Moreover, the death certificate showed Sheffield died eight months after the head injury, which was a significant passage of time from the injury. In addition, Lane knew Sheffield had returned to work for the county and city during that time period. The mere inclusion of this document in the State's production was not enough to require any reasonably competent attorney in Lane's position to divert time and resources from his effort to create lingering doubt to obtain expert testimony on the cause of Sheffield's 1995 stroke.
Under the circumstances, we conclude that the state habeas court did not unreasonably determine the facts or unreasonably apply clearly established federal law when it decided that Lane's penalty phase preparation and performance as to Sheffield's death was not objectively unreasonable under prevailing professional norms.
C. Trial Counsel Performance: Life History Mitigation Evidence
Johnson claims his trial counsel were ineffective for failing to adequately investigate and present mitigating evidence from Johnson's life history. In the state habeas proceedings, Johnson proffered testimony from friends and family that he was capable of love, care, and support; showed particular respect and deference to the older adults in his family; and supported those with whom he lived. Johnson also would have had his attorneys focus on his abandonment by his father at age 15, even though he rejoined his father in California two years later. The state habeas court denied Johnson's claim, finding trial counsel's performance was reasonable:
Petitioner also alleges that counsel were deficient and that he was prejudiced by counsel not presenting more mitigation evidence at trial.
Prior to trial, counsel talked extensively with Petitioner, spoke with Petitioner's family members on numerous occasions, and investigated Petitioner's childhood. Counsel obtained Petitioner's social history, criminal history and medical history. At the sentencing phase of trial, counsel introduced the testimony of Petitioner's mother, a friend of Petitioner's and two pastors to testify to Petitioner's good qualities and characteristics.
In addition to the heinous facts of the crime and the separate attack on Deputy Sheffield, the State introduced evidence that Petitioner had previously been convicted of theft by receiving and financial transaction card fraud for which he was put on probation; that, while on probation, Petitioner had to be told a number of times to quit acting out verbally when he reported to his probation officers; his probation officers testified that Petitioner had a horrible attitude about probation and that Petitioner was in the top ten of attitude problems among the thousands of probationers; Petitioner reported daily drug use while on probation and failed drug tests; Petitioner refused to keep probation appointments; Petitioner left the State against probation rules; Petitioner cursed detention officers while incarcerated; and Petitioner had verbal altercations with other inmates while incarcerated.
Further, in rebuttal to the additional evidence presented by Petitioner in this *1336 habeas proceeding if the same evidence had been submitted at Petitioner's trial, the State could have introduced evidence that Petitioner had a history of physically abusing women, including Melissa Windows and his ex-wife, Cindy Smith; that Ms. Smith stated Petitioner had a temper; that Petitioner had been in previous fights in bars; that Petitioner was noted by the Central State Hospital Staff as angry, loud and abusive; and that Petitioner was noted by the jail personnel to be sneaky and quick to anger when he did not get his way.
The court finds that the adequacy of a trial attorney's investigation into a defendant's background is judged by a standard of reasonableness. Counsel were not deficient because trial counsels' mitigation strategy was reasonable and supported by adequate investigation and because Petitioner cannot show actual prejudice. The failure of trial counsel to uncover every possible favorable witness does not render their performance deficient. The Court recognizes that post-conviction counsel will almost always be able to identify a potential mitigation witness that trial counsel did not interview or a record that trial counsel did not obtain.
After reviewing the evidence, we conclude that the state habeas court's conclusion that trial counsel's performance in investigating and presenting mitigating evidence from Johnson's background was not deficient is not based on an unreasonable determination of the facts or unreasonable application of clearly established federal law.
First, the record is clear that trial counsel did investigate Johnson's background for mitigating evidence. Although during the first years of the case Lane focused his efforts on guilt-phase issues and pretrial motions, Lane began his mitigation investigation in early 1997, more than a year before trial. Lane talked with Johnson and several of his family members about Johnson's background.[15]
On February 15, 1997, Lane met with Johnson for several hours "to get some history about [Johnson]." The two discussed Johnson's school history. Johnson told Lane about his criminal history, and Lane found "nothing in it that was very serious." They also discussed Johnson's marital, social, employment, and medical history. Johnson told Lane, among other things, that he: (1) was held back in third grade because of a reading problem and hyperactivity; (2) did not participate in sports or activities in Junior High; (3) quit school in tenth grade; (4) moved about six times from age 16 until the time of the murder; (5) received five years' probation for a theft by receiving conviction; (6) had two probation violations for failing a drug test and leaving the state; (7) was married to his ex-wife Cindy Smith for two years and lived with her for two years before that; (8) had used drugs, including marijuana, powder cocaine, methamphetamine, uppers, downers, heroin (once), and angel dust (once); (9) was arrested for possession of less than an ounce of marijuana but did not go to court on the charge; (10) received injuries (including head injuries) in bicycle, motorcycle, and car accidents as a child and adult; (11) was treated at three different hospitals; (12) was "15 when [his] parents separated"; and (13) worked at a Jiffy Lube and two restaurants. Three days later, Lane met with Johnson's mother and brother and learned of a time Johnson *1337 had defended a woman when a man tried to hurt her.
Lane got along well with Johnson's family and he spoke with them about possible mitigation issues. Lane testified specifically that he discussed Johnson's childhood with Johnson's mother and father.[16] Lane also talked a lot with Connie Givens, who was a friend and former girlfriend of Johnson's. For example, on November 22, 1994, Lane spent several hours meeting with Givens to discuss Johnson's "mental history." In sum, Johnson's attorneys clearly investigated Johnson's background for mitigation evidence.[17]
Second, Lane decided to employ a residual doubt strategy for the penalty phase. Lane felt Johnson had a chance to be acquitted because of "the circumstantial nature of the evidence against Mr. Johnson and the lack of conclusive physical evidence tying him to a homicide." Lane testified:
Compared to other death penalty cases where the evidence is just overwhelming that the person did it, this was not such a case. You would try that case totally differently. You'd forget about did he do it. And you start trying it about, well, why did he do it. This case was not like that.
Lane believed that if Johnson were convicted, residual doubt would be the only way to win a life sentence. He testified, "Lingering doubt was the whole thing in this case. Without it, I didn't see any hope."
Lane's belief in the paramount importance of lingering doubt, and his consequent decision to focus on guilt-phase (and doubt-creating) issues for most of the pretrial period, was not objectively unreasonable. As the state habeas court noted, "the state had no eyewitness to the crime itself and was forced to present a circumstantial evidence case" and Lane's chance to provide sufficient mitigating evidence at the penalty phase "was made incredibly more difficult" by Johnson's escape from the Miller County jail and attack on Sheffield.
Johnson argues that the scope of trial counsel's investigation into mitigating evidence from Johnson's life history was objectively unreasonable. However, as the Supreme Court stated in Van Hook while rejecting a similar argument:
This is not a case in which the defendant's attorneys failed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S., at 525, 123 S.Ct. 2527, 156 L.Ed.2d 471, or would have been apparent from *1338 documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). It is instead a case, like Strickland itself, in which defense counsel's "decision not to seek more" mitigating evidence from the defendant's background "than was already in hand" fell "well within the range of professionally reasonable judgments."
Van Hook, 130 S.Ct. at 19. Here, trial counsel investigated Johnson's background, in particular his social, education, criminal, and medical history, but found no "potentially powerful mitigating evidence." Under the circumstances, reasonable attorneys could have chosen, as trial counsel did here, to focus most of their time and effort on investigations supporting residual doubt.
As to presentation, trial counsel called four witnesses in the penalty phase: a minister and teacher who each spoke about Johnson's good character; a friend of Johnson's who testified about Johnson's love of cabinetmaking and dance; and Johnson's mother, who pled for mercy on her son's behalf. This testimony served to humanize Johnson to the jury.
Moreover, had Johnson's trial counsel emphasized Johnson's good character, as Johnson now contends they should have, the State would have had greater incentive to introduce rebuttal evidence (which it did not introduce at trial) that not only would have undercut the good-character evidence, but also would have dealt a powerful blow to the defense's core penalty-phase strategy of creating lingering doubt. In particular, the State could have introduced evidence that Johnson had a temper and physically abused his ex-wife Cynthia Smith, his ex-girlfriend Melissa Windows, and, on one occasion, one of Smith's daughters. Given this potential rebuttal evidence, and the aggravating evidence of (1) the circumstances of Sizemore's murder, rape, and mutilation, and (2) Johnson's escape and attack on Sheffield, it was reasonable for counsel to present evidence of Johnson's childhood, hobbies, and a mercy plea from Johnson's mother in lieu of a full-bore good-character strategy. The new mitigation evidence would have risked the State presenting specific rebuttal evidence that would have damaged Johnson's character. See Wood v. Allen, 542 F.3d 1281, 1313 (11th Cir.2008) ("[W]e have rejected prejudice arguments where mitigation evidence ... would have opened the door to damaging evidence."), aff'd, ___ U.S. ___, 130 S.Ct. 841, ___ L.Ed.2d ___ (2010).[18]
D. Trial Counsel Performance: Expert Future-Dangerousness Testimony
Johnson also claims trial counsel were deficient in the penalty phase by not presenting expert testimony and statistics on the issue of Johnson's future dangerousness. In the state habeas proceedings, *1339 Johnson introduced expert and statistical evidence about prison trends and future dangerousness of lifers in prison. For example, forensic psychologist Dr. Thomas Reidy testified about studies showing that (1) the offense of conviction, prior convictions, and escape history are only weakly correlated with prison violence, (2) prisoners are less likely to misbehave as they age, and (3) prisoners with long-term sentences are more likely to successfully adjust to prison. Dr. Reidy opined that Georgia would classify Johnson as a "maximum security" or "hi-max" prisoner and has safeguards to minimize the risk posed by such potentially dangerous prisoners, and thus Johnson was less likely to be violent in prison.
Former corrections commissioner and warden James Aiken testified that Georgia prisoners are effectively inhibited from committing violent infractions by the structure and security measures of the prison environment. Aiken testified that Johnson would receive a "maximum" or "hi-max" security classification, "meaning that he would be subjected to the most stringent security measures available, including highly restrictive confinement and close supervision." If Johnson were "deemed a problem inmate inclined toward misconduct, adequate measures would be taken to segregate him from the general prison population and restrict his movement, thereby negating the opportunity and ability to commit misconduct." Aiken and Dr. Reidy listed some of the high-level security and prophylactic measures employed in state prisons: housing in high-security facilities equipped with electronic perimeter detection systems, closed circuit television cameras, and listening devices; single cell placement; and administrative segregation.
Sociologist Dr. Michael Radelet testified that most prisoners convicted of capital murder but sentenced to long-term imprisonment adjust satisfactorily to prison. Dr. Radelet agreed with Dr. Reidy's and Aiken's conclusions and opined that Johnson's probability for a satisfactory adjustment to prison would be greater than most because he was older than most offenders and had no prior convictions for violent crimes.
Dr. Tim Carr, a Georgia corrections department statistician, compiled statistics regarding infraction rates between long-term inmates and the general inmate population. Dr. Carr testified that long-term inmates generally have lower rates of infractions because they are housed in more secure conditions. But Dr. Carr testified that the statistics showed only minor variations and were not conclusive, as follows:
Q Putting what you said about very little difference between the numbers aside, or in your opinion, could I go through and basically pick and choose things to support whatever position I wanted?
A Yes. If you wanted to say, for instance, that the general population inmates were better than, for example, lifers, you could pick out many examples from the reams of statistics that I produced, or you could make exactly the opposite case and pull out numerous examples in the opposite direction.
. . . .
[I]f you were to go carefully through those printouts and put a poker chip over here in this pile every time you found where lifers were better than average inmates, put it in this pile, when you find the opposite, you put it in this pile, by the time you had finished you would have, roughly, equal piles of poker chips.
Q Okay. So again, I can make these numbers say just about anything I want them to?
*1340 A That's correct.[[19]]
As to the expert future dangerousness testimony, the state habeas court noted that: (1) "Petitioner's habeas experts testified that the prison system would find that Petitioner was a high risk and dangerous and therefore place him in maximum security which would `control' his dangerousness"; (2) "[e]xperts conceded that Petitioner would be classified as `maximum' or `hi-max' security level because of his crime and past escape"; and (3) "[t]he statistician for the Georgia Department of Corrections who compiled the statistics used by Petitioner's experts in this case testified that the data, over all, showed minor variances, was easily manipulated and could be used to support almost any conclusion."
Before Johnson's trial, Lane actually had used Dr. Radelet as a witness on future dangerousness in another capital case. Thus, Lane knew about the availability of experts who would testify that a convicted murderer serving a long sentence will be classified as maximum security and thus will be in a highly restricted confinement under close supervision, will age and adjust to prison life, and will not present a danger in prison. Even though Lane contacted Dr. Radelet about Johnson's case and got funds to hire him, Lane never called Dr. Radelet as a witness. The state habeas court found that Lane made a strategic decision not to call Dr. Radelet in Johnson's case, but that fact finding is not supported by the record. Although Lane obtained the funds to pay for Dr. Radelet's 15 hours' preparation time approximately three weeks before he was to testify, Lane testified Dr. Radelet had a busy teaching schedule and was too busy to get ready in that time period. Thus, we examine Johnson's future-dangerousness claim de novo on the basis of whether a reasonably competent trial counsel is deficient for not presenting this type of future dangerousness testimony that counsel knew experts would give.
The State makes several strong arguments about how a trial counsel's not presenting this expert future dangerousness testimony "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. First, the experts' opinions that Johnson would be unlikely to harm guards or fellow inmates in prison were based in large part on the fact that prison authorities would classify him as a maximum security inmate based on his murder conviction and escape history. Their opinions did not focus on a mitigating lack of propensity to violence in Johnson's character, but rather on the fact that the structured, maximum security prison setting likely would control Johnson and not permit him to act on any desires to escape or commit acts of violence. They also serve to emphasize the point, not favorable to Johnson, that the prison system would classify him as a high security inmate because it would consider him to present a high risk of misconduct or escape.
Second, the statistics upon which Johnson's experts rely could be read either way. In other words, as statistician Dr. Carr testified, the statistics showed only minor variances between the prison misconduct rates of life-sentenced prisoners and the general population, were not conclusive, and could be used to support either position. Additionally, Carr's statistics were of a general nature that would have had little, if any, mitigating effect.
Third, a reasonable attorney could simply conclude that the experts' core opinion that statistical data about other inmates *1341 proved Johnson presented a low risk of future harm in spite of his having recently attacked a jailer and escaped was weak and would not persuade Johnson's jurors.
For the reasons argued by the State, we conclude that a reasonable attorney could decide that under the particular facts of this case the future dangerousness testimony would not be helpful.[20] Thus, Johnson has not shown deficient performance as to this claim.
E. Prejudice
The state habeas court found that Johnson did not satisfy the prejudice prong as to any ineffective trial counsel claims. The state habeas court found the expert testimony about future dangerousness would have been unpersuasive to any juror given Johnson had stabbed Sizemore 41 times, had sexually assaulted her with a tree limb, and had escaped from jail and assaulted a 76-year-old guard with a gun, stating:
In light of the evidence that Petitioner had stabbed Angela Sizemore 41 times, vaginally assaulted her with a tree limb while she was still alive, subsequently escaped from the Miller County Jail by taking a 76 year-old guard's gun and assaulting the guard with the gun causing an injury requiring 21 staples, this additional evidence to attempt to show Petitioner would not be dangerous in the future in a prison setting through expert opinion testimony would have been unpersuasive to the jury and would not with reasonable probability have changed the outcome of Petitioner's case in the face of such irrefutable evidence of the defendant's apparent ability to justify himself in an aggravated assault on an elderly detention officer in order to illegally gain his own freedom for whatever reason.
The state habeas court also stressed that Johnson's trial attorneys had no evidence to refute Johnson's actual commission of the aggravated assault on the jail guard, finding:
The Petitioner submits no argument that there was any evidence that his trial attorneys had available to refute the actual commission of the aggravated assault and escape. The court does not find that the evidence as to the extent of the injury to the jailer and the testimony of the pathologists contradicting the treating physician would . . . have deterred a juror who had already found the defendant guilty of raping, torturing and murdering Ms. Sizemore from imposing the death penalty on petitioner, and the court does not find counsel ineffective in not offering such unpersuasive evidence.
The state habeas court noted that if Johnson's additional evidence was presented, the State would have presented additional *1342 aggravating evidence, such as how Johnson had physically attacked his ex-girlfriend and ex-wife, had been in fights in bars, and was described by jail officials as sneaky and quick to anger when he did not get his way.
Considering "collectively" all of the evidence at the state habeas hearing, the state habeas court found no prejudice:
The court further finds that even if the additional evidence submitted by Petitioner in mitigation had been presented at trial, Petitioner must establish prejudice. This court is unable to conclude under the relevant burden of proof that the evidence presented at the state habeas corpus hearing, considered collectively, in light of the additional, potential aggravating evidence available to the State would with reasonable probability have changed the outcome of Petitioner's trial.
(Emphasis omitted.)
We conclude that the state habeas court's decision as to the prejudice prong of Johnson's ineffective trial counsel claims is not contrary to, nor based on an unreasonable application of, clearly established federal law.[21]
Most if not all of the mitigation evidence Johnson proffers is weak when compared to the evidence in aggravation. The jury found Johnson guilty of the brutal, torturous murder of Angela Sizemore. The nature of the crime is powerful evidence in aggravationJohnson stabbed Sizemore 41 times and sexually assaulted her with a pecan tree limb, all while she was still alive, and then dragged and dumped her body. The victim impact evidence is powerful too, because Johnson's killing of Sizemore left a four-year-old girl motherless and devastated Sizemore's entire family. Sizemore's sister testified her own death would be easier than living with daily thoughts of what Sizemore's last moments were like. Further, the evidence was undisputed that while awaiting trial for Sizemore's murder, Johnson attacked a 76-year-old jailer to escape from jail, an attack that required 21 staples to close the jailer's head wound. The state habeas court reasonably concluded that Johnson's own conduct made his trial counsel's task at the penalty phase "incredibly more difficult."
Moreover, much of Johnson's mitigating evidence would be contradicted or undercut by other evidence. For example, hospital treatment records show that Johnson denied being the victim of a sexual assault at the Dougherty County jail.[22] While Johnson claimed he was physically abused, the only documented instance is a June 1994 attack for which Johnson was taken to the emergency room and diagnosed with swelling in his left wrist, a knot on his forehead, and bruises to his neck, arms, and face. Although Johnson claimed he escaped for fear of returning to the Dougherty County jail, Johnson was in the Miller County jail at the time of his escape and there were no plans at the time to transfer him back to Dougherty County. Indeed, even after his escape, Johnson was returned to the Miller County jail and he never told attorney Lane of this alleged fear.[23] More fundamentally, even if the *1343 jury accepted Johnson's alleged reason for his escape and that his attack on Sheffield was unrelated to the stroke, the undisputed evidence still reveals Johnson as a man willing to savagely beat a 76-year-old jailer to save himself.
Johnson's other categories of proposed mitigation suffer from similar flaws. Although Johnson's future dangerousness experts opined that they believed Johnson would likely adjust well to a prison setting and would not likely harm other people in prison, their testimony was based in part on the fact that Johnson would be classified by the prison system as a maximum security prisoner because of his murder offense and escape history.[24] In other words, Johnson would be unlikely to harm others not necessarily because he is unwilling to do so but because he would be watched and confined enough that he would be unlikely to be able to. Such testimony is obviously less mitigating than testimony that a defendant would not be dangerous because of his character or other intrinsic factors. Moreover, as the state habeas court noted, Johnson's experts' opinions were based on an analysis of prison statistics that, according to the statistician who compiled them, showed only very small differences and could be used to support almost any position.
Similarly, Johnson's proffered life history mitigation is utterly devoid of the power or emotional heft of the evidence present in cases where the Supreme Court has determined that the prejudice prong was satisfied. Johnson was not sexually or physically abused or deprived of food by his parents, and they did not separate until Johnson was fifteen. Compare Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 454, 175 L.Ed.2d 398 (2009) (finding evidence of Porter's heroic military service and resulting emotional scars, brain abnormality, and childhood physical abuse was the "kind of troubled history we have declared relevant to assessing a defendant's moral culpability"); Rompilla, 545 U.S. at 390-93, 125 S.Ct. at 2468-69 (finding prejudice prong satisfied by evidence that Rompilla's parents were alcoholics, his father frequently beat his mother and bragged about his infidelity, his father beat Rompilla and locked him and his brother in an excrement-filled dog pen, Rompilla slept in an unheated attic, and he was given no clothes and went to school in rags); Wiggins, 539 U.S. at 534-35, 123 S.Ct. at 2542 (noting evidence, inter alia, of "severe privation and abuse in the first six years of . . . life," and "physical torment, sexual molestation, and repeated rape during . . . subsequent years in foster care"); Williams, 529 U.S. at 395-98, 120 S.Ct. at 1514-15 (finding counsel prejudiced Williams by not presenting graphic evidence of defendant's "nightmarish childhood" that included his parents' imprisonment for criminal neglect of him and his siblings, his severe and frequent beatings by his father, and his commitment to an abusive foster home). Nor would it enable the jury to "understand [Johnson] and his *1344 horrendous acts." Sears v. Upton, 561 U.S. ___, 130 S.Ct. 3259, 3264, 177 L.Ed.2d 1025 (2010).
Instead, Johnson's proffered life history mitigation of Johnson's good character as an adult stood in stark contrast to the brutal nature of Sizemore's murder and Johnson's admitted aggravated assault on Deputy Sheffield, and may well have prompted the State to introduce evidence of Johnson's violent temper and physical abuse of his ex-wife Cynthia Smith and his ex-girlfriend Melissa Windows, which not only would have undercut Johnson's good-character mitigation but also would have devastated his residual doubt theory. If the additional life history evidence was admitted, the State would have had more incentive to introduce the rebuttal evidence listed by the state habeas court: (1) "that Petitioner had a history of physically abusing women, including Melissa Windows and his ex-wife, Cindy Smith"; (2) "that Ms. Smith stated Petitioner had a temper"; (3) "that Petitioner had been in previous fights in bars"; (4) "that Petitioner was noted by the Central State Hospital Staff as angry, loud and abusive"; and (5) "that Petitioner was noted by the jail personnel to be sneaky and quick to anger when he did not get his way."
On prejudice grounds, this case is closer to Wong v. Belmontes, 558 U.S. ___, 130 S.Ct. 383, 387-90, 175 L.Ed.2d 328 (2009), in which the Supreme Court found no prejudice from counsel's failure to present (1) cumulative evidence of Belmontes's difficult childhood and good character, (2) expert opinion that he was likely to have a nonviolent adjustment to a prison setting that would have opened the door to evidence Belmontes had committed another murder, and (3) evidence of Belmontes's emotional instability and impaired planning and reasoning ability that was undercut by the calculated nature of the murder and Belmontes's subsequent bragging about it.
In sum, Johnson's state habeas evidence and the mitigation testimony at the penalty phase, considered collectively, are not nearly strong enough when weighed against the extreme evidence in aggravation for us to conclude that Johnson has shown prejudice. Contrary to Johnson's assertions, this is a case in which "the new evidence would barely have altered the sentencing profile presented" to Johnson's jury. Porter, 130 S.Ct. at 454 (quotation marks omitted). It was thus not unreasonable for the state habeas court to conclude that Johnson had failed to show a reasonable probability that he would receive a different sentence. Accordingly, the state habeas court did not unreasonably determine the facts or unreasonably apply established Supreme Court precedent when it concluded Johnson did not satisfy the prejudice prong as to his ineffective trial counsel claims.
IX. CONCLUSION
We affirm the district court's denial of Johnson's § 2254 petition.
AFFIRMED.
NOTES
[1] Lane currently serves as a Superior Court judge for the Pataula Judicial Circuit.
[2] Lane waited to request co-counsel until he determined he would not challenge venue because he wanted a local attorney as co-counsel.
[3] In January 1995, Dougherty County opened a second, newer jail. We refer to that facility as the "new Dougherty County jail" and the first jail as either the "old Dougherty County jail" or simply the "Dougherty County jail."
[4] Records show Johnson was transported to the emergency room and diagnosed with contusions to his neck, arms, and face. X-rays revealed no fractures. Johnson complained of pain in his left wrist and left eye, suffered swelling in his left wrist, and had a knot on his forehead.
[5] Lane did not know of any alleged rapes. Johnson in fact denied being raped or sexually assaulted. In July 1995, Johnson underwent a psychological assessment at Central State Hospital, as part of which Johnson completed a questionnaire that included the question, "Have you ever been sexually or physically abused? Explain." Johnson wrote "No" next to "sexually," and next to "physically" he wrote, "physically abused in Dougherty Co. jail."
[6] After Jones was appointed, he and Lane worked together on the whole case, but Lane was lead counsel and did most of the work. Jones testified that "Lane was more in charge" of the penalty phase of the trial than Jones was.
[7] Similarly, the State's penalty-phase closing argument suggested that the injury Johnson inflicted may have caused Sheffield's death, but admitted it may not have and maybe Sheffield would have died anyway:
[Johnson] slugged a seventy-six year old deputy in the head, so severely that if it had been a direct blow it would have killed him. What did happen to him? Several months later, he suffered a stroke on the same side of his body that he got that hit; his health just kept going straight on down and he died and Mr. Lane or Mr. Jones may say, well, he didn't kill him, and maybe he didn't and maybe he would have died anyway, but that happened at the hands of this man, Marcus Ray Johnson, and there's no dispute of that, doing anything he could to get out of lawful confinement.
(Emphasis added.)
[8] The State admitted certified copies of Johnson's convictions, plea, and sentence.
[9] The aggravated assault conviction merged into the felony murder conviction, and the felony murder conviction was vacated by operation of law. See Johnson, 519 S.E.2d at 225 n. 1 (citing Malcolm v. State, 263 Ga. 369, 434 S.E.2d 479, 482 (1993) (noting that: (1) aggravated assault conviction, as underlying felony in felony murder count, merged into felony murder conviction as a matter of law; and (2) a defendant may be convicted in Georgia of both malice murder and felony murder of single victim, but may not be sentenced for both crimes)).
[10] Johnson himself did not testify in the state habeas proceeding. The most Johnson presented was the testimony of Ronnie Daniels (a/k/a "Sneaky D"), a former Miller County inmate, who testified that Johnson escaped after overhearing a conversation about another inmate being transferred to Dougherty County and mistakenly assuming the conversation was about him. Another fellow Miller County jail inmate, James Wright, testified that he spoke with Johnson after the escape and Johnson "told me that he was going to be transferred back to Dougherty County. He just kept saying, `I can't go back there, I can't go back.'"
[11] Johnson states that one of Lane's investigators, George Waldrop, "somehow learned prior to trial" that Johnson escaped from the Miller County jail because he was under the mistaken belief that he was about to be transferred back to the Dougherty County jail. This is not correct. In his affidavit, Waldrop expressly states, "I didn't know anything about [Johnson's escape] until it was presented at sentencing."
[12] Johnson argues Lane's failure to affirmatively ask Johnson why he escaped was objectively unreasonable performance, citing Wiggins v. Smith, 539 U.S. 510, 531-34, 123 S.Ct. 2527, 2540-42, 156 L.Ed.2d 471 (2003), in which the Supreme Court concluded trial counsel's failure to investigate the petitioner's social background beyond a review of the presentence investigation report and social services records constituted deficient performance, despite the fact that the petitioner obviously knew his own background and did not volunteer it to counsel. However, Wiggins expressly relied on the fact that "the evidence counsel uncovered in the social services records ... would have led a reasonably competent attorney to investigate further." Id. at 534, 123 S.Ct. at 2542.
Here, there was nothing in what Lane had learned about the escape or about Johnson's treatment at the Dougherty County jail that would have led any reasonably competent attorney to ask Johnson why he chose to escape from the Miller County jail. To the contrary, Johnson, as would any defendant facing capital charges for a brutal killing and with a good chance of being convicted and sentenced to death, had an obvious reason for escaping: he did not want to be executed or spend the rest of his life in prison. There was no basis for Lane or any other attorney in his position to suspect there might be some other reason. The state habeas court's decision is not contrary to Wiggins.
[13] Dr. Rummel testified on direct examination (not cross-examination) that she could not be entirely sure that Johnson had caused Sheffield's death. So, from the start, the State's causation theory linking Sheffield's death with Johnson's attack was weak.
[14] Johnson argues trial counsel should have had Dr. Brian Frist, a pathologist who testified for the defense in the guilt phase, opine that Sheffield's death was unrelated to the injury Johnson inflicted. However, Dr. Frist's testimony would not have come without cost. Dr. Frist would have brought Johnson's attack on Sheffield into the forefront and at a risk that the jury would view the "he wasn't hurt that badly" defense as callous. In any event, Johnson's trial counsel effectively cross-examined the State's only witness on this point Dr. Rummel and attacked the State's suggestion in their closing arguments.
[15] Additionally, second-chair counsel Jones met with Johnson for nearly five hours in December 1997 to discuss "mitigation information and family background information." Jones testified that "Lane was more in charge of [the mitigation] aspect of the case than I was."
[16] Lane called Johnson's mother to testify at the penalty phase, but his father called Lane before trial and told him he would be unable to attend.
[17] In his affidavit, Lane stated that he "neglected to prepare adequately for the sentencing phase when [he] had the time, and in the end [he] had too little time to develop a coherent and convincing presentation at sentencing." Of course, the test for deficient performance is an objective one, so Lane's subjective belief that his performance was deficient is far from determinative. See Windom v. Sec'y, Dep't of Corr., 578 F.3d 1227, 1246 n. 11 (11th Cir.2009) ("Because the adequacy of an attorney's performance is measured against an objective standard of reasonableness, the fact that trial counsel admits that his performance was lacking is of little, if any, consequence."), cert. denied, ___ U.S. ___, 130 S.Ct. 2367, 176 L.Ed.2d 566 (2010); Jennings v. McDonough, 490 F.3d 1230, 1247 (11th Cir.2007) ("The Strickland standard of objective reasonableness does not depend on the subjective intentions of the attorney, judgments made in hindsight, or an attorney's admission of deficient performance."). And the objective evidence shows that Lane engaged in a constitutionally adequate investigation of Johnson's background, though perhaps not one that was as comprehensive as in hindsight he now would prefer.
[18] Johnson argues that his trial counsel already introduced evidence of his good character at the penalty phase (just not enough), and the State did not introduce this rebuttal evidence, so it is not appropriate to assume the State would do so in the face of the proffered evidence. This ignores the fact that when, in the state habeas case, Johnson proffered such evidence, the State introduced the rebuttal evidence of, inter alia, Johnson's domestic abuse and violent temper. Thus, it is reasonable to conclude the odds were good that had Johnson's counsel introduced the proffered mitigation evidence at trial, the State would have introduced its proffered rebuttal evidence. The point is that if Johnson's counsel had focused their penalty-phase presentation on life history mitigation evidence (as opposed to lingering doubt) and called a lot more witnesses as to Johnson's good character as an adult, the State would have done more on this score too as happened in the state habeas hearing.
[19] We reject Johnson's claim that the state habeas court's conclusion that the statistics were easily manipulable was an unreasonable determination of the facts.
[20] We note that this is not a case in which the State introduced expert testimony about the defendant's future dangerousness and the defendant was denied an opportunity to directly rebut that testimony with his own expert. See Clisby v. Jones, 960 F.2d 925, 929 n. 7 (11th Cir.1992). Nor is this a case like Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), cited by Johnson, in which the State's two experts testified there was a "high probability" that Williams posed a serious continuing security threat and defendant's attorneys failed to elicit: (1) evidence of Williams's "nightmarish childhood," including criminal neglect by his parents, severe abuse by his father, and his time in an abusive foster home; (2) that correctional officers were willing to testify Williams would not pose a danger while incarcerated; (3) that Williams received prison commendations for breaking up a drug ring and returning an officer's wallet; and (4) an admission from the State's testifying future dangerousness experts that the defendant would not pose a threat in the future if kept in a structured environment. Id. at 368-71, 373 & n. 4, 395-98, 120 S.Ct. at 1500-02 & n. 4, 1514-15.
[21] We also reject Johnson's arguments that the state habeas court applied the wrong legal standard or based its decision on an unreasonable determination of the facts.
[22] In July 1995, Johnson underwent a psychological assessment at Central State Hospital, as part of which Johnson completed a "comprehensive assessment" questionnaire. One of the questions was, "Have you ever been sexually or physically abused? Explain." Johnson wrote "No" next to "sexually," and next to "physically" he wrote, "physically abused in Dougherty Co. jail."
[23] The jury easily could have rejected the notion that Johnson had a reasonable belief that he was going to be transferred, especially since after the escape he went back to the Miller County jail and ultimately went to the new Dougherty County jail facility when it opened in January 1995. Alternatively, the jury could have concluded that if Johnson feared a transfer, he simply could have asked Lane to make sure he stayed in the Miller County jail.
[24] Although Johnson's experts believed the prison system's classification would "overcompensate" for Johnson's actual risk profile, that belief rested on, inter alia, the experts' discounting of Johnson's escape history as a "unique" event permitted by Sheffield's negligent behavior and motivated by Johnson's "reason[able]" fear of being transferred back to the Dougherty County jail. Jurors may have chosen not to discount, as Johnson's experts did, Johnson's actual history of violent escape.
| {
"pile_set_name": "FreeLaw"
} |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 13, 2007
Decided July 23, 2007
Before
Hon. Joel M. Flaum, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Diane P. Wood, Circuit Judge
No. 06-3806 Appeal from the United States District
Court for the Eastern District of Wisconsin
United States of America,
No. 04 CR 66
Plaintiff-Appellee,
Rudolph T. Randa, Chief Judge.
v.
Jeffrey G. Coleman,
Defendant-Appellant.
ORDER
After pleading guilty to conspiring to distribute five kilograms or more of cocaine,
Jeffrey Coleman sought to withdraw his plea. The district court denied Coleman’s motion
concluding that Coleman failed to establish a fair and just reason for the withdrawal of his plea.
The district court then sentenced Coleman to 360 months’ imprisonment. Coleman appeals, and
we affirm.
No. 06-3806 Page 2
I.
Jeffrey Coleman (“Coleman”) was charged in a one-count indictment with conspiring to
distribute five kilograms or more of cocaine. Pursuant to a plea agreement, Coleman pleaded
guilty to the charge. The plea agreement noted that Coleman could face a term of life
imprisonment and that the offense at issue involved more than five kilograms of cocaine. Two
months later, Coleman’s attorney filed, on Coleman’s behalf, a motion captioned “Motion To
Withdraw Guilty Plea.” The motion stated that “[b]y means of this Motion, the defendant seeks
only to void the Plea Agreement under the terms of which his February 3rd, 2005 guilty plea was
entered. If granted leave to do so, he will enter a guilty plea to that same charge in the absence
of a Plea Agreement.” The district court held a hearing on the motion at which Coleman’s
counsel stated that Coleman wished to withdraw his previously entered plea pursuant to the plea
agreement and “fil[e] a separate factual basis for the plea, and then a change of plea hearing on
that basis.” The district court granted Coleman’s motion. The district court further clarified the
status of Coleman’s case in an order stating, “At the hearing on November 9, Coleman was never
allowed to withdraw his plea of guilty[,] but only to withdraw from the terms of the plea
agreement. . . . There was never a motion by Coleman to completely withdraw his plea nor was a
‘fair and just’ reason offered, at any time, for a complete withdrawal of the defendant’s plea.”
Coleman filed a second motion to withdraw his previously entered guilty plea, this time
with new counsel. In this latter motion, Coleman asserted that he first saw the guilty plea thirty
to forty-five minutes prior to his change of plea hearing and that his attorney read it to him, but
refused Coleman the opportunity to read it to himself. Coleman also argued that he was rushed
into the plea and did not fully understand the plea agreement. Coleman stated that he believed
that he could and would be able to go to trial, and further stated that his guilty plea was not made
knowingly and voluntarily and was the product of ineffective assistance of counsel.
The district court denied Coleman’s second motion in a one-page order stating that
“Coleman has failed to set forth a ‘fair and just’ reason for withdrawal of his plea.” The district
court also overruled Coleman’s objections that the presentence report improperly utilized his
prior convictions to arrive at a guideline range of 360 months to life imprisonment. The district
court sentenced Coleman to 360 months’ imprisonment. In imposing this sentence, the district
court concluded that Coleman had at least two prior controlled substance felony convictions
qualifying him for the career offender provision of the guidelines. The district court also
considered the factors set forth in 18 U.S.C. § 3553(a) and Coleman’s history. Coleman appeals
the denial of his motion to withdraw his plea, the application of the career offender
enhancement, and the reasonableness of his sentence.
II.
We review a district court’s decision to deny a motion to withdraw a guilty plea for an
abuse of discretion. United States v. Howard, 341 F.3d 620, 622 (7th Cir. 2003) (citation
omitted). A defendant is permitted to withdraw a guilty plea if “the defendant can show a fair
No. 06-3806 Page 3
and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The burden to
make this showing rests on the defendant. United States v. Walker, 447 F.3d 999, 1004 (7th Cir.
2006). A guilty plea premised on ineffective assistance of counsel is deemed involuntary, and
the defendant must “demonstrate both that [his] attorney’s performance fell below an objective
standard of reasonableness and that [he] was prejudiced by this deficient representation.”
United States v. Wallace, 276 F.3d 360, 366 (7th Cir. 2002) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). In other words, to withdraw his guilty plea, the defendant must show
that his attorney’s counsel was objectively unreasonable and that, but for that erroneous advice,
he would not have entered the guilty plea. See Bridgeman v. United States, 299 F.3d 589, 592
(7th Cir. 2000).
Coleman contends that he did not fully understand the plea agreement, that he only
received the plea agreement thirty minutes prior to the hearing, that he was prevented by his
attorney from reading the plea agreement, and that his attorney never fully explained that he
could be sentenced as a career offender. As an additional basis for withdrawal, Coleman cites his
attorney only seeking to withdraw from the plea agreement and not to the plea as a whole.
As an initial matter, we note that there is no requirement that an attorney meet with his
client for a particular amount of time before a plea hearing. See generally United States v.
Henry, 933 F.2d 553, 561 (7th Cir. 1991). Further, statements made at a Rule 11 plea hearing
are presumed truthful. United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002) (citation
omitted). At his plea hearing, Coleman stated under oath that he was satisfied with his
attorney’s representation, that he did not wish to discuss anything further with his attorney, and
that he did not wish to go to trial. Coleman further acknowledged as true the facts alleged by the
government, including that he and his co-defendants received twenty-five kilograms of cocaine.
Finally, Coleman stated that he understood that he could be sentenced up to life imprisonment.
Coleman has failed to show that he was prejudiced by ineffective assistance of counsel
because the alleged deficiencies he now claims are rebutted by his own statements at the plea
hearing. Moreover, Coleman has not demonstrated that absent those claimed deficiencies he
would have gone to trial. Accordingly, the district court did not abuse its discretion in
concluding that Coleman had failed to assert fair and just reasons for withdrawing his plea.
We next turn to the district court’s application of the guidelines’ career offender
provisions. Coleman objects to his designation as a career offender under guideline § 4B1.1 for
two prior felony drug convictions because he neither admitted to those convictions in
proceedings in this case nor were they submitted to a jury for proof beyond a reasonable doubt.
The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must found by a
jury beyond a reasonable doubt. Prior convictions however are exempt from this holding.
United States v. Peters, 462 F.3d 716, 718 (noting that a defendant does “not have a Sixth
Amendment right to a jury determination of his prior conviction.”); see Almendarez-Torres v.
No. 06-3806 Page 4
United States, 523 U.S. 224 (1998); Harris v. United States, 536 U.S. 545 (2002). Although
Coleman cites Justice Thomas’s dissent in Harris, 536 U.S. at 579, and concurrence in Shepard
v. United States, 544 U.S. 13, 26 (2005), in support of his position that he is being exposed to
greater punishment than otherwise prescribed for his offense, this court, as well as the district
court, are bound to follow Almendarez-Torres. Therefore, the district court did not err in
applying the career offender enhancement without Coleman’s admission to or a jury’s finding on
his prior convictions. United States v. Jordan, 485 F.3d 982, 984 (7th Cir. 2007).
Finally, Coleman challenges the reasonableness of his sentence. We review a sentence
imposed by a district court for reasonableness. United States v. Mykytiuk, 415 F.3d 606, 607
(7th Cir. 2005). Sentences within the guideline range are presumptively reasonable. Id. at 608.
We note, though,“that this is a standard for appellate review only.” United States v.
Sachsenmaier, ___ F.3d ___, No. 05-3505, 2007 WL 1839282 at *4 (7th Cir. June 28, 2007)
(citing Rita v. United States, No. 06-5754, 2007 WL 1772146 (June 21, 2007)). “[T]he
reasonableness of a sentence is guided by the factors set forth in 18 U.S.C. § 3553(a).” United
States v. Alburay, 415 F.3d 782, 786 (7th Cir. 2005). “[T]hese factors include the nature and
circumstances of the offense, the history and characteristics of the defendant, the need for the
sentence to reflect the seriousness of the offense, the need to promote respect for the law, the
need to provide just punishment for the offense, the need to afford adequate deterrence to
criminal conduct, and the need to protect the public from further crimes of the defendant.” Id.
(citing 18 U.S.C. § 3553a(1) & (2)(A)-(C)). The district court must consider these factors,
ultimately basing its sentence on § 3553 “without any thumb on the scale favoring a guideline
sentence. If, however, a district court freely decides that the guidelines suggest a reasonable
sentence, then on appellate review the defendant must explain why the district court was wrong.”
Sachsenmaeir, 2007 WL 1839282 at *4.
Coleman’s guideline range was 360 months to life imprisonment; the district court
imposed a sentence of 360 months’ imprisonment. Coleman argues that his age of thirty-six, and
his rehabilitation efforts, make a sentence of 360 months’ imprisonment severe and greater than
that imposed on those who committed violent crimes. Coleman, however, fails to assert which, if
any, of the § 3553 factors the district court failed to consider in imposing the sentence or that the
district court failed to consider Coleman’s personal characteristics, including his age or the
possible term of imprisonment. The district court considered § 3553, including Coleman’s
history and characteristics, his prior convictions, minimal work history, prior arrests, and
dropping out of school, and concluded that the guideline sentence was a reasonable one.
Therefore, the district court did not impose an unreasonable sentence, and we affirm Coleman’s
sentence.
III.
We conclude that Coleman failed to establish a fair and just reason for the withdrawal of his
plea and that the district court imposed a reasonable sentence. Accordingly, we AFFIRM both
Coleman’s conviction and sentence.
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989 F.2d 501
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Donald T. WRIGHT, Petitioner-Appellant,v.Michael DUTTON, Warden Respondent-Appellee.
No. 92-6001.
United States Court of Appeals, Sixth Circuit.
March 12, 1993.
1
Before NATHANIEL R. JONES and RALPH B. GUY, JR., Circuit Judges, and COHN, District Judge.*
ORDER
2
Donald T. Wright, a pro se Tennessee prisoner, appeals a district court order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Wright was convicted in 1980 of first and second degree murder and was sentenced to two consecutive terms of life imprisonment. The Tennessee Court of Criminal Appeals affirmed his convictions on January 6, 1982, and the Tennessee Supreme Court denied leave to appeal. Wright then filed a petition for post-conviction relief (PCR) in which he raised the issue of ineffective assistance of counsel. The denial of this petition was affirmed by the appellate court in an opinion issued May 4, 1984. But because Wright's court-appointed attorney did not appeal this issue to the Tennessee Supreme Court, Wright's first federal habeas petition was denied without prejudice on January 9, 1986 for failure to exhaust state remedies. A panel of this court affirmed the district court's dismissal. Wright v. Dutton, No. 86-6293 (6th Cir. Oct. 1, 1987).
4
Wright returned to the Tennessee Court of Criminal Appeals, seeking to have that court withdraw and reinstate its judgment on his PCR petition in order to recommence the time for filing an appeal to the Tennessee Supreme Court. The appellate court denied the motion for lack of jurisdiction. Wright's petition for permission to appeal to the Tennessee Supreme Court was denied on July 1, 1991. Wright filed a new PCR petition, which was still pending at the time this appeal was filed.
5
In his present petition, Wright again raised the issue of ineffective assistance of trial counsel. In a memorandum and order filed May 19, 1992, the district court dismissed the petition. It noted that Wright had technically satisfied the exhaustion requirement with the Tennessee Supreme Court's rejection of his application for delayed appeal, but had failed to establish cause for his procedural default. This unexcused default barred him from federal habeas relief. Wright filed a motion to alter or amend the judgment in which he claimed that the district court overlooked the state's violation of his right to due process, based upon the eleven months that his most recent PCR petition had been pending in the state trial court. This motion was denied by order of July 13, 1992.
6
On appeal, Wright continues to argue that the state violated his right to due process, thus preventing him from exhausting his state court remedies. He also argues that the district court erred by not holding an evidentiary hearing.
7
Upon review, we shall affirm the district court's order because, although Wright is deemed to have exhausted his state court remedies, he has not shown cause for his procedural default. See Wainwright v. Sykes, 433 U.S. 72, 87-91 (1977). Ordinary attorney error does not constitute cause unless it amounts to ineffective assistance of counsel under the test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Coleman v. Thompson, 111 S.Ct. 2546, 2567 (1991) (attorney error must be of constitutional magnitude before responsibility for the default will be imputed to the state). Because Wright was not constitutionally entitled to counsel for the purpose of bringing his PCR petition, any error allegedly made by counsel is not of constitutional magnitude. Id. at 2566-67.
8
Further, Wright has not shown a due process violation. Even if lack of exhaustion rather than the failure to establish cause was Wright's problem, the state trial court's eleven-month delay in considering his second PCR petition is not by itself so unreasonable as to conclude that the state's remedy is ineffective. Recent case law indicates a reluctance to excuse exhaustion due to delays of this length. See, e.g., Cook v. Florida Parole & Probation Comm'n, 749 F.2d 678, 680 (11th Cir.1985) (per curiam) (three and one half years); Seemiller v. Wyrick, 663 F.2d 805, 807 (8th Cir.1981) (two and one half years). Further, habeas petitioners generally must also show the existence of some additional factor, e.g., that the state delay is a result of discrimination against the petitioner or that the state has been unnecessarily and intentionally dilatory. See Jones v. Solem, 739 F.2d 329, 331 (8th Cir.1984). Wright alleges no bad faith.
9
Finally, the district court did not err by not holding an evidentiary hearing because none of the eight circumstances listed in § 2254(d) is present and it is clear from the record that Wright is not entitled to relief. See McMillan v. Barksdale, 823 F.2d 981, 983-84 (6th Cir.1987).
10
Accordingly, the district court's order, entered May 19, 1992, is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-41076
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIDNEY WADE LITTLE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-127-1
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Sidney Wade Little appeals from his sentence following his
guilty-plea conviction for knowingly and intentionally possessing
pseudoephedrine with the intent to manufacture methamphetamine.
He argues that the district court erred by failing to award him a
safety-valve adjustment pursuant to U.S.S.G. § 5C1.2. The
district court did not err in determining that § 5C1.2 was not
applicable to Little’s sentence. See United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-41076
-2-
Little also contends that the district court clearly erred
by attributing to him an amount of pseudoephedrine that belonged
to his codefendant. The district court’s finding that Little and
his codefendant were engaged in jointly undertaken criminal
activity was not clearly erroneous. See United States v. Ayala,
47 F.3d 688, 690 (5th Cir. 1995). Accordingly, the district
court’s judgment is affirmed.
AFFIRMED.
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823 F.2d 392
8 Fed.R.Serv.3d 687
Louise JARVIS, d/b/a Witts Tackle & Marine, Inc., Plaintiff-Appellant,v.COMMERCIAL UNION ASSURANCE COMPANIES, and Commercial UnionInsurance Company, Defendants-Counterclaimants-Appellees.
No. 85-1562.
United States Court of Appeals,Tenth Circuit.
July 7, 1987.
Michael E. Vigil of Marchiondo & Berry, P.A., Albuquerque, N.M., for plaintiff-appellant.
Terrence R. Joy of Robins, Zelle, Larson & Kaplan, Minneapolis, Minn., and Dallas, Tex. (H. Jerome Gette of Robins, Zelle, Larson & Kaplan, Minneapolis, Minn., and Dallas, Tex., and Edward E. Triviz, Las Cruces, N.M., with him on brief), for defendants-counterclaimants-appellees.
Before McKAY, MOORE, and TACHA, Circuit Judges.
JOHN P. MOORE, Circuit Judge.
1
In this appeal, Witts Tackle & Marine, Inc. and Louise Jarvis, Witts' president, to whom we shall refer as "plaintiffs," contend the trial court erred when it failed to grant them a new trial because of an inconsistency between a general verdict and the jury's answer to a written interrogatory. We conclude that contrary to the findings of the district court, an inconsistency exists, and plaintiff Witts is entitled to a new trial pursuant to Fed.R.Civ.P. 49(b). We find no such inconsistency regarding the claim of Ms. Jarvis. We also conclude that because the trial court failed to give counsel a meaningful opportunity to object to the inconsistency before the jury was discharged, Witts did not waive the right to raise the issue on appeal.
I.
2
In August 1981, during a period of serious financial difficulty for Witts, a fire destroyed its business premises. A few months before the fire, Witts obtained a policy from defendant, Commercial Union Insurance Company (Commercial Union), which provided coverage limits of $100,000 on the building, $230,000 on the contents, and $40,000 for business interruption. These limits represented a substantial increase over Witts' previous insurance.
3
After Witts filed a proof of loss, Commercial Union refused to pay, contending plaintiffs were responsible for setting the fire. Commercial Union eventually paid the Small Business Administration the sum of $59,731 representing the SBA's loss from its mortgage on Witts' building. (Despite Commercial Union's opinion of plaintiffs' culpability, the policy required payment to the mortgagee notwithstanding any defense the insurer could assert against the insured.)
4
Plaintiffs filed this action against Commercial Union claiming breach of the contract of insurance and breach of the implied covenant of fair dealing and good faith.1 Commercial Union counterclaimed against plaintiffs for the amount it paid the SBA.
II.
5
After a lengthy trial, the court presented the jury with two special interrogatories together with general verdict forms on the claims and counterclaim. Interrogatory No. 1 asked:
6
Did defendant Commercial Union Ins. Co. breach the insurance contract with plaintiff Witts Tackle & Marine, Inc. by refusing to pay the insurance claim of plaintiff Witts Tackle & Marine Inc.?
7
To this question, the jury responded, "Yes." Interrogatory No. 2, which was to be answered only if the first interrogatory was affirmatively answered, asked:Did defendant Commercial Union Insurance Company act in bad faith in its dealings with plaintiff Witts Tackle and Marine, Inc.?
8
To this, the jury responded, "No." Then the jury returned a verdict stating:
9
WE, the Jury, find in favor of the defendant Commercial Union Ins. Co., and against plaintiff Witts Tackle & Marine, Inc.2
10
In addition to the general verdict forms finding against each plaintiff, the jury was also provided verdict forms which stated in part:
11
WE, the Jury, find in favor of plaintiff ... and against the defendant and assess compensatory damages against the defendant in the amount of $__________.
12
Despite the jury's answer to interrogatory No. 1, this verdict form was returned unsigned, and the space for the amount of damages was left blank. On the counterclaim, the jury returned a verdict for the plaintiffs and against the defendant.
13
The confusion between the verdicts and the answers to interrogatories was immediately recognized by the trial court when the forms were returned in open court. Apparently, the judge studied the papers for some time in silence, then told the jury:
14
Ladies and gentlemen of the jury, in reference to the special interrogatory, the Court--in reference to the verdict forms, I am going to request that you go back to the jury room and review the special interrogatory form to see if that is the correct way that you intended to check the marks that are indicated thereon, in reference to the verdicts that have been signed. The Court is having a little confusion with that, is all.
15
At this time, I will ask the jury to go back and take a look at that. It may or may not be, I just want you all six to look at that. Please rise.
16
Neither counsel was shown the interrogatory answers or the verdicts before the jury was excused; therefore, both sides were unaware of the nature of the problem perceived by the court. After approximately one-half hour, the court reconvened, and the following transpired:
17
THE COURT: The jury has given me a note, after I instructed them to go back and look at the special interrogatory form in regard to the verdict form. They have now submitted to me a note that has indicated that they are satisfied that they have filled out the interrogatory form correctly, and that if there is any conflict between the form and the verdict form, that they would need to be shown or told what the conflict is.
18
Under Rule 49, it required that after the Court has reviewed the verdict forms, to publish those, and then that is exactly what I am going to do. I wanted to inquire if there was an inconsistency in the jury's mind. They are saying that there is none, so I am going to bring them in and publish the verdict.
19
The jury then returned, and the forms were once again given to the court. After polling the jury, the court ordered entry of the verdict and immediately discharged the jury, giving counsel no time to reflect upon what had transpired or to object to the entry of the verdict.
20
Five days later, plaintiffs moved under Fed.R.Civ.P. 49(b)3 for either entry of judgment in their favor, a new trial on all issues, or a new trial on the issue of damages only. As grounds for their motion, plaintiffs contended the answers to the interrogatories and the general verdicts were inconsistent. In denying this motion, the district court held that:
21
[T]he only arguable inconsistency is between the general verdict in favor of Commercial Union and against plaintiff Witts Tackle and the special interrogatory finding that Commercial Union breached the insurance contract.
22
We agree with this appraisal of the issues. The court properly circumscribed the inquiry because interrogatory No. 1 pertained only to Witts and not Ms. Jarvis; hence, Ms. Jarvis' claims were unaffected.
23
In its written order, the district court recalled that about one-half hour after retiring with instructions to reconsider its verdicts, the jury sent the court a note stating:
24
The jury has unanimously agreed that the Special Interrogatory Form is filled out correctly. However, if there is a conflict with the Special Interrogatory form and the Verdict Forms we will need a description of this conflict.4
25
The court further recalled that upon receipt of this note and after review of the jury instructions, it was satisfied the verdicts and the answers to the interrogatories were "harmonious."5
26
After reviewing the circumstances, the court concluded the verdict should be upheld. The conclusion was based upon the court's view that because the jury could have found Witts failed to prove damages beyond the amount paid to the SBA, the answer to special interrogatory No. 1 and the general verdict were congruous. The court reasoned that the jury was instructed it had to setoff the amount defendant paid SBA against damages to the plaintiff's structure; therefore, it must have decided the amount of the damages to the building did not exceed the amount of the setoff. The court further reasoned that the jury could have found that Witts failed to prove the value of the contents of the building, observing that defendant had presented evidence that the contents were obsolete. As to damages for interruption of income, the court concluded that since Witts' business was failing at the time of the fire and defendant presented "strong evidence that there were no compensable lost earnings," the jury also might have found plaintiff sustained no damages on this claim. We believe these conclusions are inappropriate under the peculiar circumstances of this case.
27
The basic fallacy of the trial court's reasoning is found in its failure to recognize that the general verdict is more than a decision by the jury not to award damages. Indeed, it represents a determination by the jury that the defendant was not liable on Witts' breach of contract claim. That determination does not square with the answer to interrogatory No. 1. It is fundamentally inconsistent for the jury to find that defendant breached the contract by failure to pay Witts' claim while also finding that the defendant was not liable for the breach. The deviation between these two decisions cannot be explained away on the grounds the jury found an absence of damages. If that had been the jury's determination, it would have returned the form of verdict finding for plaintiff with a zero in the blank provided for the amount of damages. That verdict would coincide with the answer to interrogatory No. 1. Instead, we are left with the unmistakable impression that because the jury made two conflicting decisions on liability, it was totally confused on the breach of contract issue.6
28
When faced with inconsistent verdicts, a trial court should attempt to bring them into harmony. Julien J. Studley, Inc. v. Gulf Oil Corp., 407 F.2d 521, 526 (2d Cir.1969). Yet, when only cacophony reigns, the verdicts must be set aside. Global Van Lines, Inc. v. Nebeker, 541 F.2d 865, 868 (10th Cir.1976).
III.
29
Defendant argues we cannot reach the jury's inconsistent acts because Witts waived the issue by failure to object before the jury was discharged. Ordinarily, one who permits the discharge of the jury without raising the inconsistency of a verdict cannot assert the inconsistency on appeal. Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir.1968); Kirkendoll v. Neustrom, 379 F.2d 694, 698 (10th Cir.1967). Nevertheless, in this instance we do not believe the rule should be applied.
30
It is quite evident in the record that counsel on both sides had no knowledge of either the nature or the magnitude of the problem created by the verdict. The trial court initially perceived the problem, but rather than sharing it with counsel, the judge sent the jury back to deliberate without benefit of further instructions. The court should have conferred with counsel and arrived at an instruction explaining to the jury that the answer to the interrogatory and the general verdict against Witts were inconsistent. While the court might have feared intervening in the province of the jury, it nonetheless left the jury unguided and obviously unable to understand the problem it had created. It would not have been an interference with the jury's function for the court to explain that either the verdict or the answer to the interrogatory would have to be changed to eliminate confusion. Moreover, this should have been done after giving both counsel an opportunity to be heard on the subject.
31
The trial court took unto itself the whole burden of dealing with this problem. In so doing, however, it left counsel without a meaningful opportunity to protect the interests of their clients and to preserve the record for appeal. This unfortunate circumstance was compounded by not sharing with counsel the jury's note and by discharging the jury without giving counsel an opportunity to object.
32
Even though the court orally disclosed the substance of the note before ordering the jury returned, it deprived counsel of the opportunity to suggest curative instructions to the court. The note suggested the jury was still confused because it stated, "The jury has unanimously agreed that the Special Interrogatory Form is filled out correctly." (Emphasis added.) Yet, the note did not say the jury was satisfied the verdict did not conflict with the interrogatory. Instead it asked for "a description" of the "conflict" between the answer and the verdict if one existed. Nonetheless, the court summarily declared the conflict resolved and proceeded with entry of the verdict. Once again, an opportunity to avoid the now evident inconsistency was passed.
33
In the heat that arises from the natural tensions of an arduous trial, particularly late in its last day, it is often easy to make simple errors in judgment on both sides of the bench. The problem that arose here is at once unusual and difficult to anticipate. The trial court is not to be grievously faulted for failure to see something we, in the luxury of leisurely contemplation, now find so evident. By the same measure, however, it would be a perverse default of justice to say that under the circumstances present here, counsel had waived the right to correct an onerous inconsistency in the jury's resolution of his client's case only because he did not raise an objection. Compare Cheney v. Moler, 285 F.2d 116 (10th Cir.1960).
IV.
34
Both parties are entitled to a clear resolution of the breach of contract claim. We do not believe, however, that the inconsistency of the jury mandates a new trial on all issues. The trial court correctly circumscribed the viable issue here, as we have noted, and in accordance with that circumscription, the only appropriate relief is retrial of the claim upon which the jury rendered the inconsistent verdict. Accordingly, that part of the trial court's judgment denying relief to plaintiff Jarvis must be affirmed.
35
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for retrial of the breach of contract claim filed by Witts Tackle & Marine, Inc.
1
Other personal claims of Ms. Jarvis not pertinent to this appeal were also filed and later disposed
2
An identical verdict was returned against Ms. Jarvis
3
Rule 49(b) states in part:
When the answers [to interrogatories] are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial.
4
Unfortunately, this note was not shared with counsel before the verdict was returned
5
While it makes little difference to the outcome, we observe in passing that the district judge's contemporaneous reading of the jury note indicated to him that the jury was satisfied the interrogatory was correctly completed. Of course, the satisfaction of the jury is not what is required. Rule 49(b) places the burden on the court to determine the harmony between the interrogatories and the verdict, despite what the jury believes. See Elston v. Morgan, 440 F.2d 47, 49 (7th Cir.1971)
6
Defendant suggests the jury was not confused because it was instructed, and thus could have found, that defendant could be excused from performance of the contract. We believe under the facts of this case, that conclusion cannot be reached without indulging in mischievous speculation
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 13, 2005
THOMAS K. KAHN
No. 04-14074 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 03-23147-CV-FAM
DAVID N. PETERSON,
Plaintiff-Appellant,
versus
CHESTER KREIDICH,
EDWARD BLUM,
UNITED STATES OF AMERICA,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(May 13, 2005)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Appellant David N. Peterson appeals pro se the district court’s dismissal for
lack of subject matter jurisdiction of his complaint seeking judicial review of an
administrative determination by the Internal Revenue Service (IRS) under 26
U.S.C § 6330 and alleging a due process violation.
Peterson argues that the district court erred by dismissing his complaint for
lack of subject matter jurisdiction as his complaint raised a violation of due
process, not an income tax dispute. Further, he contends that the district court
erred by finding that the United States Tax Court had jurisdiction over his due
process claims. Peterson also argues that individual defendants Chester Kreidrich
and Edward Blum violated his due process rights by terminating his collection due
process (CDP) hearing and not allowing him to present any issues or record the
hearing. Finally, he maintains that the district court erred by relying on the Notice
of Determination without holding a hearing because the notice erroneously stated
that all procedural requirements had been followed.
We review questions of subject matter jurisdiction de novo. Palmer v.
Braun, 376 F.3d 1254, 1257 (11th Cir. 2004).
Section 6321 of the Internal Revenue Code provides that “[i]f any person
liable to pay any tax neglects or refuses to pay the same after demand, the
amount . . . shall be a lien in favor of the United States.” 26 U.S.C. § 6321. If a
2
person refuses to pay such tax within ten days of notice and demand for payment,
the IRS may collect the tax by a levy on the taxpayer’s property. 26 U.S.C.
§ 6331(a). However, the IRS cannot collect taxes by levy until the taxpayer is
notified of the right to request a CDP hearing within 30 days of the notice. 26
U.S.C. § 6330(a)(1), (2); Roberts v. Comm’r, 329 F.3d 1224, 1227 (11th Cir.
2003). Such notice is required only once for each taxable period. 26 U.S.C.
§ 6330(a)(1). When a taxpayer’s request for a CDP hearing is untimely, the
taxpayer is granted an administrative hearing called an “equivalent hearing.” 26
C.F.R. § 301.6330-1(i)(1). An equivalent hearing generally follows the
procedures for a CDP hearing, except the IRS appeals office will issue a Decision
Letter instead of a Notice of Determination, and there is no right to appeal an
equivalent hearing decision. 26 C.F.R. § 301.6330-1(i)(1)(2)(Q&A I-5).
Where the taxpayer timely requested a CDP hearing, he or she may appeal
within 30 days of the decision. 26 U.S.C. § 6330(d)(1). Such appeal must be filed
in tax court unless the tax court “does not have jurisdiction of the underlying tax
liability,” in which case the appeal is filed in district court. 26 U.S.C.
§ 6330(d)(1)(A), (B).
The tax court has exclusive jurisdiction over challenges to an IRS
determination of income tax liability. See 26 U.S.C. §§ 6212(a), 6213(a), 7442; 26
3
C.F.R. §§ 301.6330-1(f)(2)(Q&A F-3), 601.102(b)(1)(i). Additionally, although
we have not decided the question whether a due process violation in the
determination of income taxes will confer subject matter jurisdiction on a district
court, other circuits that have addressed the issue have reached the conclusion that
such an alleged violation does not confer subject matter jurisdiction on the district
court if the underlying claim involves income tax issues. See e.g., Voelker v.
Nolen, 365 F.3d 580, 581 (7th Cir. 2004) (finding that the district court lacked
subject matter jurisdiction over appellant’s due process challenge relating to his
CDP hearing because the tax court has jurisdiction over cases involving income
taxes); Martin v. C.I.R., 756 F.2d 38, 40 (6th Cir. 1985) (finding that although
appellant asserted constitutional violations, the claim was one for determination of
his income tax liability, which is properly within the jurisdiction of the tax court);
Manino v. Brown, 357 F.3d 143, 146 (1st Cir. 2004) (finding tax protester’s
challenge plus notice of determination upholding lien based on her income tax
liability could only be reviewed by the Tax Court as it has exclusive jurisdiction.1
We find persuasive and adopt the reasoning of our sister circuits in the present
case.
1
See also Steidel v. Evans, No. 02-35733, 2003 WL 342339, at (9th Cir. Feb. 12, 2003)
(“when the underlying taxes are income taxes, the Tax Court has . . . exclusive jurisdiction.” (citing
26 C.F.R. § 601.102(b)(F)(i)).
4
Accordingly, we conclude from the record that the district court did not err
in dismissing Peterson’s complaint for lack of subject matter jurisdiction because
(1) with respect to tax year 1993, he was entitled to only an equivalent hearing
because he did not timely request a CDP hearing, and a taxpayer is not entitled to
judicial review of a decision following an equivalent hearing; and (2) with respect
to tax years 1994 and 1995, Peterson was required to file his appeal in tax court
because the tax court has jurisdiction over income tax liability, the underlying tax
liability in his case.
AFFIRMED.
5
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770 F.2d 1070
Greater New York Ins. Companiesv.American Intern. Group
84-5577
United States Court of Appeals,Third Circuit.
6/18/85
1
D.N.J.
AFFIRMED
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746 So.2d 901 (1998)
Eric Dana BRUCE, Appellant,
v.
STATE of Mississippi, Appellee.
No. 97-KA-00082 COA.
Court of Appeals of Mississippi.
December 30, 1998.
Rehearing Denied April 20, 1999.
Certiorari Denied August 5, 1999.
*903 Anthony J. Buckley, Laurel (Withdrawn), Tyree Irving, Attorneys for Appellant.
Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.
Before THOMAS, P.J., and DIAZ, HERRING, and KING, JJ.
KING, J., for the Court:
¶ 1. Eric Dana Bruce was convicted of murder in the Jones County Circuit Court and sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Bruce has appealed and assigned six points of error:
(1) WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT BRUCE'S CONVICTION FOR MURDER.
(2)WHETHER THE GRANTING OF INSTRUCTION S-2A WAS TANTAMOUNT TO AN IMPERMISSIBLE *904 AMENDMENT OF THE INDICTMENT.
(3)WHETHER AN EVIDENTIARY PREDICATE WAS ESTABLISHED FOR THE GRANTING OF A MANSLAUGHTER INSTRUCTION, AND IF SO, WAS INSTRUCTION S-2A PROPER.
(4)WHETHER THE JURY VERDICT IS CONTRARY TO LAW, CONTRADICTED BY PHYSICAL EVIDENCE AND AGAINST THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE OF THE LAW.
(5)WHETHER THE COURT ERRED PREJUDICIALLY IN ADMITTING INTO EVIDENCE A SKS RIFLE, METAL BULLET JACKET AND PICTURES OF THE SUSPECTED SHOOTING SCENE.
(6)WHETHER THE APPELLANT RECEIVED A FAIR TRIAL IN LIGHT OF PROSECUTORIAL MISCONDUCT, IMPROPER ADMONITIONS BY THE COURT TO DEFENSE COUNSEL AND FAILURES OF DEFENSE COUNSEL.
Finding no error, this Court affirms the circuit court judgment.
FACTS
¶ 2. On February 18, 1996, Bruce attended a party at Shady Oaks High School in Jones County, Mississippi. While at the party, Bruce argued with Darryl Jones about Veronica, who was Bruce's cousin. Veronica had accused Darryl of making an insulting gesture toward her.
¶ 3. Bruce left the party with a second cousin, Horace Jones, and Preston Knight, in a red truck. They retrieved a SKS rifle from Bruce's house. With Preston driving, the trio returned to the party and searched for Darryl. Unable to find Darryl, they returned to the truck. Later, they noticed Darryl riding in Daniel Turner's car.
¶ 4. They followed Daniel's car toward the town of Soso, but turned onto another road. After seeing the car later on Highway 28, they again followed it. Preston pulled the truck to the left lane of the highway. Bruce then leaned out of the window and fired his rifle toward Daniel's car. Afterwards, Preston drove the truck to Horace's house. The boys were later informed that Matthew Jones, who had been riding in Daniel's car, died from a gunshot wound to the back.
¶ 5. The day after the shooting, Mel Riley, an investigator with the Jones County Sheriff's Department, examined the shooting scene on Highway 28. Because of the chipped and scarred condition of the highway, no search was conducted to determine whether bullet fragments were present.
¶ 6. Investigator Riley also examined Daniel's car. He stated that a hole was present on the left side of the car trunk indicating that a bullet had entered at this point. Another possible bullet hole was found on the car roof above the left passenger side, rear window.
¶ 7. Jones County deputies later found two weapons, a SKS rifle and a nine millimeter pistol, in Daniel's car. A metal bullet jacket was found underneath the mat of the trunk. The pistol was returned to Daniel, but the rifle and bullet jacket were sent to the Mississippi Crime Laboratory for analysis.
¶ 8. On February 21, 1996, Investigator Riley participated in the retrieval of a .30 caliber, SKS rifle. He testified that Johnny Smith, a member of the Civil Defense Dive Team, recovered this rifle from the Lucy Hole[1] near Soso, Mississippi. Mr. Smith gave the weapon to Investigator Riley, who took it to the Mississippi Crime Laboratory for analysis. Because the rifle had been submerged in water, no fingerprints could be lifted.
¶ 9. Dr. Steven Hayne, a forensic pathologist, performed an autopsy on Matthew. *905 He found an extremely large, entrance gunshot wound located over Matthew's back, and sixteen inches below the top of his head. Secondary missile fragments surrounded the gunshot. It was Dr. Hayne's opinion that "the entrance wound was consistent with having been produced by a large caliber, high velocity weapon and ... the projectile had gone through an intermediate target prior to striking the deceased in the back." He stated that Matthew Jones "died of a gunshot wound to the back consistent with a re-entry distant and penetrating gunshot wound." The bullet went through an intermediate target and traveled some distance before it struck Mr. Jones, and the bullet did not exit the body. It was Dr. Haynes's opinion that Matthew's injury was consistent with someone having fired a gunshot from another vehicle and the bullet having traveled through the trunk and backseat of the vehicle.
¶ 10. Dr. Hayne removed the lead core of the bullet from Matthew's body. He gave it to Ann Hayne, his office assistant. Ms. Hayne sent it to the Mississippi Crime Laboratory for analysis.
¶ 11. Steve Byrd, a forensic scientist with the Mississippi Crime Laboratory, conducted analysis on the lead core of the bullet, the bullet jacket, and the SKS rifle retrieved from the Lucy Hole. He examined the lead core and the bullet jacket visually and microscopically. The rifle was examined visually and then test fired to retrieve test standards. After comparing the lead core and bullet jacket with the test standards, Mr. Byrd determined that (1) neither projectile could positively be identified as having been fired from the SKS rifle and (2) the hole located on the left side of the car's truck was consistent with that fired by a .30 caliber weapon.
¶ 12. Mr. Byrd also test fired the second SKS rifle into the right side of the trunk. It was Mr. Byrd's opinion that this test hole was also consistent with that fired by a .30 caliber weapon.
¶ 13. Bruce and Horace were subsequently indicted for their participation in the shooting. Preston was not charged. Horace was charged as an accessory to murder. However, the Jones County District Attorney's Office granted him leniency in exchange for his testimony against Bruce.
¶ 14. Bruce went to trial, and the jury convicted him of murder. He was sentenced to serve a term of life imprisonment. Bruce's motions for directed verdict and new trial having been denied, he now appeals his conviction and sentence.
I. THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT BRUCE'S CONVICTION FOR MURDER.
¶ 15. In his first assignment of error, Bruce contends that the State failed to present evidence to support a finding that Bruce specifically intended to kill Matthew. Bruce argues that because the State presented no evidence to establish his specific intent to kill, his Motion for Directed Verdict should have been granted.
Standard of Review
¶ 16. The standard of review for appeals from an overruled motion for directed verdict is as follows:
"[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State." McClain v. State, 625 So.2d 774, 778 (Miss.1993). "We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id.
Law and Analysis
¶ 17. Bruce argues that because he did not (1) know Matthew or the people in Matthew's car nor (2) have an altercation or confrontation with Matthew prior to the *906 shooting, he could not have possessed a specific intent to kill. He points to the testimony of both Horace and Preston to support his contention that he was merely trying to scare the individuals in Matthew's car rather than intentionally kill a specific person. Bruce's argument is without merit.
¶ 18. Bruce was charged with murder as defined under Miss.Code Ann. § 97-3-19(1) (Rev.1994). The indictment does not specify under which subsection Bruce was charged. However, both Bruce and the State concede that subsection (a) was the applicable section.
¶ 19. Miss.Code Ann. § 97-3-19(1)(a) prescribes that the killing of a human being by any means or in any manner shall be murder when done with deliberate design to effect the death of the person killed, or of any human being. "`[D]eliberate' always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. `Design' means to calculate, plan, [or] contemplate." Jones v. State, 710 So.2d 870, 877 (Miss.1998) (quoting Windham v. State, 520 So.2d 123, 127 (Miss.1987)).
¶ 20. In the instant case, the State presented the following evidence to establish that Bruce had full awareness of his actions and possessed a deliberate design to effect Matthew's death:
(1) Horace and Preston testified that after an altercation with Darryl and Daniel, Bruce left the school and retrieved a rifle from Bruce's house. Thinking that he saw Darryl in Daniel's car, Bruce indicated to Preston that he wanted to follow the car.
(2) Horace, Preston, Daniel, Tiger Jean Carter, and Jamie Jones testified that Bruce, while riding near Daniel's car, aimed a deadly weapon toward the car and discharged it.
¶ 21. Though Bruce argues that he discharged his weapon not intending to kill Matthew, he is presumed to have intended the natural and probable consequences of his voluntary and deliberate acts. 22 C.J.S. Criminal Law § 35 (1990). When intentionally firing his rifle toward a moving automobile occupied by several persons, Bruce was presumed to have intended the likely consequence of killing Matthew, an unknown person. Based upon the evidence, the trial court did not err in failing to grant a directed verdict.
II. THE GRANTING OF INSTRUCTION S-2A WAS TANTAMOUNT TO AN IMPERMISSIBLE AMENDMENT OF THE INDICTMENT.
III. AN EVIDENTIARY PREDICATE WAS NOT ESTABLISHED FOR THE GRANTING OF A MANSLAUGHTER INSTRUCTION.
¶ 22. In his second and third assignments of error, Bruce contends that the trial court erred by granting the State's Instruction S-2A, a manslaughter instruction. He argues that (1) this instruction states the definition for murder under Miss.Code Ann. § 97-3-19(1)(b) rather than manslaughter and (2) the facts did not support the giving of a manslaughter instruction.
¶ 23. Where the evidence supports a murder conviction, and the jury finds the defendant guilty of murder, the defendant cannot complain that a manslaughter instruction was given. Fowler v. State, 566 So.2d 1194, 1201 (Miss.1990). Accordingly, this Court finds no merit in this issue.
IV. THE JURY VERDICT IS CONTRARY TO LAW, CONTRADICTED BY THE PHYSICAL EVIDENCE AND AGAINST THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE.
¶ 24. In his fourth assignment of error, Bruce contends that the jury verdict is against the overwhelming weight of the credible evidence and that certain physical evidence in the case at bar contradicts the jury verdict. This Court disagrees. "In determining whether or not a jury verdict is against the overwhelming weight of the *907 evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when it is convinced that the circuit court has abused its discretion in failing to grant a new trial." Isaac v. State, 645 So.2d 903, 907 (Miss.1994).
¶ 25. Bruce suggests that the following evidence contradicts the jury verdict:
(a) All diagrams drawn by the witnesses show that a shot fired from the truck must have been fired at an angle; therefore, the projectile could not have entered the truck in the manner that it did.
(b) The projectile must have been traveling at a left to right angle. Matthew Jones was killed from a projectile which traveled right to left at approximately 20 degrees and
upward or downward, plus or minus 10 degrees.
(c) The headlights of the truck were apparently turned off, thus making it very dark where the shots were fired.
Bruce argues that diagrams[2] drawn by Horace, Preston, Jamie, Daniel, and Sonya McLaurin[3] show that a bullet could not have entered the left side of the trunk of Daniel's car and made the trajectory that killed Matthew.
¶ 26. The diagrams of Horace and Preston indicated that they saw sparks on the right, rear side of the car. However, the diagrams of the remaining witnesses indicated that the truck traveled in the lane to the left of Daniel's car. This Court notes that none of the diagrams were drawn to scale; therefore, the possibility that a bullet could have hit an intermediary target and then hit the left side of the car was not precluded. It was within the jury's province to weigh this evidence, and accordingly, this Court defers to the jury's decision to render a guilty verdict. McClain, 625 So.2d at 778.
¶ 27. Bruce contends that on another drawing made by Daniel he incorrectly indicated where a person named Shawn was sitting on the backseat. He argues that this drawing was inconsistent with Daniel's previous testimony which indicated that Josiah Hicks sat in the middle on the backseat.
¶ 28. Inconsistencies are for the jury to evaluate. Jones v. State, 381 So.2d 983, 989 (Miss.1980). "The jury not only has the right and duty to determine the truth or falsity of the witnesses, but also has the right to evaluate and determine what portions of the testimony of any witness it will accept or reject..." Henson v. Roberts, 679 So.2d 1041, 1045 (Miss.1996). This Court will not disturb the jury's findings unless the verdict is so contrary to the overwhelming weight of the evidence that "to allow it to stand would sanction an unconscionable injustice." Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).
¶ 29. Bruce contends that any shot fired from the truck in the left lane would have been traveling at a left to right angle. Because Matthew was killed by a bullet which entered his body and coursed from right to left, Bruce argues that no bullet from his gun could have killed Matthew.
¶ 30. Bruce's argument centers again on a factual issue for determination by the jury. It was the duty of the jury to evaluate this evidence to determine whether a bullet from Bruce's weapon caused Matthew's death. McClain, 625 So.2d at 778.
¶ 31. Bruce finally argues that the lights were turned off at the time of the shooting, implying that the testimony of the State's witnesses was inaccurate. "The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, *908 memory and sincerity." Jones, 381 So.2d at 989. Bruce's argument is without merit.
V. THE COURT ERRED PREJUDICIALLY IN ADMITTING INTO EVIDENCE A SKS RIFLE, METAL BULLET JACKET AND PICTURES OF THE SUSPECTED SHOOTING SCENE.
¶ 32. In his fifth assignment of error, Bruce contends that the trial court erred in admitting the SKS rifle recovered from the Lucy Hole, the bullet jacket, and the photographs of the suspected shooting scene. A review of the record demonstrates that Bruce failed to object to admission of the rifle and photographs. He objected to admission of the bullet jacket, but the objection was untimely.
¶ 33. This Court is under no obligation to consider assignments of error when either an objection was not made or was untimely. Carr v. State, 655 So.2d 824, 832 (Miss.1995). However, Bruce later raises a claim of ineffective assistance of counsel due to Attorney Buckley's failure to object to the admission of the rifle and photographs. In light of his right to effective assistance of counsel, this Court will address these issues in his final assignment of error.
VI. THE APPELLANT DID NOT RECEIVE A FAIR TRIAL IN LIGHT OF PROSECUTORIAL MISCONDUCT, IMPROPER ADMONITIONS BY THE COURT TO DEFENSE COUNSEL AND FAILURES OF DEFENSE COUNSEL.
¶ 34. In his final assignment of error, Bruce contends that the prosecutor, the trial court judge and his attorney, Anthony Buckley, committed several errors. This Court addresses each person's alleged error below.
A.
Prosecutorial Misconduct
¶ 35. Bruce contends that the prosecutor made prejudicial and improper statements during closing argument. The statements read as follows:
(1) We will never know how far Eric Bruce was hanging out the window ... and somebody is hanging out of the window with some kind of weapon, shooting at another vehicle .... But there is one thing that is undisputed here, that is, that Eric Bruce was on that road that night with this SKS rifle. He was on the passenger sidethat's undisputedof the red truck. He hung out of the window. He could have hung low, he could have hung far, somebody could have been holding his feet, he could have been sitting on his knees.
(2) I think he intended to come back and do bodily harm.
¶ 36. A review of the record reveals that Bruce failed to object to these alleged improper remarks. Procedurally, "[c]ontemporaneous objections to allegedly erroneous comments of the prosecuting attorney in closing arguments must be made or the point is waived." Gray v. State, 487 So.2d 1304, 1312 (Miss.1986). This Court is, therefore, not required to address this issue. However, Bruce raises the same assignment of error under his argument regarding ineffective assistance of counsel. In the interest of Bruce's right to a fair trial, this Court will address this issue.
¶ 37. Bruce argues that the prosecutor's remarks were beyond the evidence presented. No testimony established that anyone held Bruce's feet while he hung out the window or that Bruce was sitting on his knees. He also argues that the prosecutor improperly expressed his personal belief in Bruce's guilt.
¶ 38. Though the prosecutor's statements appear to have been inappropriate, under all the facts and circumstances, this Court does not find that these statements were so prejudicial as to constitute reversible error. Prosecutors are admonished in the future to conform opening *909 and closing statements to the evidence presented during trial.
¶ 39. Bruce contends that the prosecutor failed to reveal the deal made by the State with Horace in exchange for his testimony against him. A review of the record reveals that the prosecutor stated both, during trial and at the hearing for a new trial, information regarding any deal made with Horace. The jury was made aware of the fact that Horace was given leniency for his testimony. It does not appear that the prosecutor withheld information from the defense.
B.
Trial Court Judge Misconduct
¶ 40. Bruce argues that statements made by the Court in the presence of the jury were inappropriate and diminished the jury's esteem for his counsel. The following statements were made during trial:
(1) "If y'all argue with each other and argue with me one more time, you are going to find out what the burden of proof is keeping you out of jail. Now do you understand what I am saying?"
(2) Court: "That's what you get for not objecting when somebody is leading." Bruce's Attorney: "Well I'm just objecting to the leading on that one. I'm objecting now.
Court: "Well that's why you are supposed to stand up and object."
¶ 41. A trial judge is charged with maintaining order and promoting judicial economy in the courtroom. Barlow v. State, 272 So.2d 639, 640 (Miss.1973). The previous statements, though somewhat sarcastic, appear to have been made in an attempt to maintain order and ensure compliance with the rules of evidence.
C.
Attorney Buckley's Effective Assistance of Counsel
¶ 42. Bruce argues that he was denied his right to effective assistance of counsel. This Court disagrees. When judging an attorney's performance, the proper standard is that of reasonably effective assistance. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the following two-prong test for determining effective assistance of counsel:
(1) Was counsel's performance deficient?
(2) Did the deficient performance prejudice the defense so as to deprive the defendant of a fair trial?
See also Wilcher v. State, 479 So.2d 710, 712 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984).
¶ 43. Applying the first prong of the test, this Court considers whether Anthony Buckley gave a deficient performance. In doing so, this Court presumes that Attorney Buckley's conduct falls within the wide range of effective assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Bruce must identify specific deficiencies in the record which indicate a failure of counsel to render effective assistance. Id.
¶ 44. In his attempts to overcome this presumption, Bruce specifically contends that Attorney Buckley:
(a) did not request a continuance of the trial when he learned that Willie D. Shelby had not been served.
(b) did not call Omekia Brown, Vanessa Jones, and Sylea Crosby to testify even though they were available and had information helpful to the appellant.
(c) used poor judgment in making an issue about the .9 mm not being tested by the State when he had apparently told the investigator he did not want it tested.
(d) did not object to the rifle, recovered from the Lucy Hole, and the pictures of the suspected shooting scene, being admitted into evidence.
*910 (e) did not present to the jury an instruction on appellant's theory of the case.
(f) did not object to the improper portion of the State's closing argument.
¶ 45. This Court will address the alleged deficiencies individually.
(a) Attorney Buckley did not request a continuance of the trial when he learned that Willie Shelby had not been served.
¶ 46. Bruce contends that Attorney Buckley should have moved for a continuance upon learning that Willie Shelby, a passenger in Daniel's car, had not been subpoenaed to court. The following evidence was included in Willie's statement:
(1) Willie saw Bruce, Horace, and Preston leave in a red truck.
(2) Bruce held a SKS rifle while riding in the red truck.
(3) Bruce sat next to the passenger window in the truck.
(4) The three boys followed Daniel's car.
(5) Willie heard one shot.
¶ 47. After a review of Willie's statement to the Jones County Sheriff's Department, this Court does not find that a continuance was warranted. Bruce argues that Willie's statement reveals more details regarding the events surrounding the shooting. However, this Court finds this statement to have been cumulative to the testimony of several State witnesses. Mississippi Rule of Evidence 403 prohibits the needless presentation of cumulative evidence.
(b) Attorney Buckley did not call Omekia Brown, Vanessa Jones, and Sylea Crosby to testify even though they were available and had information helpful to the appellant.
¶ 48. Bruce contends that Attorney Buckley failed to call three witnesses who were available and had helpful information. Like Willie's testimony, the testimony of Vanessa Jones, Omekia Brown and Sylea Crosby, all passengers in Sonya's car, was cumulative to the testimony of several witnesses. M.R.E. 403. Each witness gave a statement which indicated that (1) they heard Bruce and Darryl argue, (2) Darryl's truck passed Sonya's car and (3) they heard one shot. This Court does not find that Attorney Buckley improperly failed to subpoena these witnesses.
(c) Attorney Buckley used poor judgment in making an issue about the .9 mm not being tested by the State when he had apparently told the investigator he did not want it tested.
¶ 49. Bruce argues that Attorney Buckley improperly made an issue regarding the nine millimeter pistol found in Daniel's car.
¶ 50. Prior to trial, Attorney Buckley stated to Investigator Riley that he did not want the pistol tested. However, during trial, he asked a series of questions regarding whether the pistol was actually tested.
¶ 51. Because it had been determined that Daniel's death resulted from a high caliber weapon, Attorney Buckley's inquiry about the nine millimeter was ill advised. He exercised poor judgment; however, his inquiry was not so prejudicial as to alter the verdict.
(d) Attorney Buckley did not object to the rifle, recovered from the Lucy Hole, and the pictures of the suspected shooting scene, being admitted into evidence.
¶ 52. Bruce argues that Attorney Buckley should have objected to admission of the SKS rifle retrieved from the Lucy Hole and the State's photographs of Highway 28. This Court does not find that objections were in order.
¶ 53. The SKS rifle was relevant evidence and as such, was admissible. M.R.E. 402. Many of the State's witnesses testified that they saw Bruce with a SKS rifle while riding in Preston's truck. The SKS rifle corroborated the testimony of the State's witnesses and had relevance to the crime itself. No identifying marks were found on this rifle. However, it was *911 the jury's duty to evaluate whether this SKS rifle was the actual one used by Bruce during the shooting. Attorney Buckley did not err in failing to object to the admission of the SKS rifle.
¶ 54. Further, the admission of physical evidence is governed under rules regarding chain of custody. "The chain of custody of evidence in control of the authorities is usually determined within the sound discretion of the trial judge, and unless this judicial discretion has been so abused as to be prejudicial to the defendant, this Court will not reverse the rulings of the trial court." Nixon v. State, 336 So.2d 742, 744 (Miss.1976).
¶ 55. Investigator Riley testified that he was given the rifle by a member of the civil defense dive team. Upon receiving the rifle, Investigator Riley personally delivered it to the Mississippi Crime Laboratory. The State properly established the chain of custody during trial. An objection in this regard would have been futile.
¶ 56. The photographs of Highway 28 were also relevant evidence. Several state witnesses testified that the shooting took place while driving on Highway 28 near Soso.
¶ 57. Though Investigator Riley does not state who took the photographs, he suggests that police department personnel were responsible. Bruce's argument is without merit.
(e) Attorney Buckley did not present to the jury an instruction on appellant's theory of the case.
¶ 58. Bruce contends that Attorney Buckley did not offer an instruction on his theory of the case. However, he fails to define his theory of the case or offer argument or authority in this regard. This Court is, therefore, not required to address this issue. Brown v. State, 534 So.2d 1019, 1023 (Miss.1988).
(f) Attorney Buckley did not object to the improper portion of the State's closing argument.
¶ 59. Bruce contends that Attorney Buckley failed to object to improper statements by the prosecutor. Having addressed this contention in subsection "A", this Court will not address this contention again.
¶ 60. After a complete review of the record and briefs, Attorney Buckley's performance, viewed in its entirety, was not deficient under prong one of the Strickland test. Having determined that Attorney Buckley's representation was not deficient, it is not necessary to apply the second prong of the test. This Court does not find that Attorney Buckley failed to provide Bruce effective assistance of counsel. This final assignment of error is without merit.
¶ 61. Finding no error in the instant case, this Court affirms the judgment of the Jones County Circuit Court.
¶ 62. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.
BRIDGES, C.J., McMILLIN and THOMAS, P.JJ., and COLEMAN, DIAZ, HINKEBEIN, PAYNE, and SOUTHWICK, JJ., concur.
HERRING, J., not participating.
NOTES
[1] The Lucy Hole is a portion of the Big Creek in Jones County.
[2] Each witness was asked to draw the position of the truck in relation to the car, and in what direction the rifle was pointed.
[3] At the time of the shooting, Sonya drove her car behind Tiger Jean's car. Sonya was the only witness who testified that Bruce aimed his weapon toward Tiger Jean's car.
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125 B.R. 767 (1991)
In re William J. STOECKER, Debtor.
Bankruptcy No. 89 B 02873.
United States Bankruptcy Court, N.D. Illinois, E.D.
March 18, 1991.
Thomas Raleigh, Raleigh & Helm, Chicago, Ill., trustee.
Robert Radasevich, Neal, Gerber & Eisenberg, Chicago, Ill., for the Trustee.
Michael P. O'Neil, Winston & Strawn, Chicago, Ill., for Connecticut Bank & Trust Co.
John D. Lien, Michael L. Weissman, Foley & Lardner, Chicago, Ill., for Beverly Bank.
James A. Cherney, Latham & Watkins, Chicago, Ill., for Citibank, N.A.
*768 MEMORANDUM OPINION
JOHN H. SQUIRES, Bankruptcy Judge.
This matter comes before the Court on the first application of Thomas E. Raleigh (the "Trustee") pursuant to 11 U.S.C. §§ 326 and 331 and Federal Rule of Bankruptcy Procedure 2016 for allowance of interim compensation as Chapter 7 Trustee, in the voluntarily reduced amount of $400,000.00 from the amount of $565,270.41 initially requested. Proper notice was given to all creditors and parties in interest pursuant to Federal Rule of Bankruptcy Procedure 2002. Responses containing objections were filed by Beverly Bank ("Beverly"), Citibank, N.A. ("Citibank") and The Connecticut Bank and Trust Company, N.A. ("CBT") Citibank withdrew its objections because of the voluntary reduction by the Trustee, but Beverly and CBT stand on their objections to allowance of the reduced request as excessive. Partial interim compensation in the amount of $164,588.00 was awarded without objection, pending completion of the briefing and presentation of the evidence. A full hearing on the application was held and the matter was subsequently taken under advisement.
The issue is whether in a large Chapter 7 case converted from Chapter 11, a trustee should be awarded under a first interim fee application, either the maximum compensation allowable under Section 326 of the Bankruptcy Code or approximately one percent less than the maximum, where the services performed have not been objected to as unnecessary, but the reasonableness of the amount requested is challenged. The Court holds under the facts and history peculiar to this case, that allowance of maximum compensation or amounts in that range should be deferred in a large asset Chapter 7 case until the conclusion of a successful liquidation when final maximum results and benefits are achieved, warranting such compensation. In a failed attempted reorganization case that is converted to Chapter 7, the maximum allowable compensation should not be expected or awarded on the initial interim application. Because the Trustee has continued to do a highly commendable job in a difficult and complex case, the Court allows a substantial portion of the requested compensation in the sum of $187,844.19.
I. JURISDICTION AND PROCEDURE
The Court has jurisdiction to entertain this fee application pursuant to 28 U.S.C. § 1334 and General Rule 2.33(A) of the United States District Court for the Northern District of Illinois. This matter constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (O).
II. FACTS AND BACKGROUND
Some of the facts, background and history of this case are contained in earlier Opinions of the Court. See In re Stoecker, 118 B.R. 596 (Bankr.N.D.Ill.1990); In re Stoecker, 114 B.R. 965, 967-968 (Bankr.N. D.Ill.1990); In re Stoecker, 103 B.R. 182, 184-185 (Bankr.N.D.Ill.1989). Additional background information concerning the related corporate cases is contained in other Opinions of the Court. See In re Grabill Corp., 110 B.R. 356, 358 (Bankr.N.D.Ill. 1990); In re Grabill Corp., 103 B.R. 996, 997-998 (Bankr.N.D.Ill.1989).
An involuntary Chapter 11 petition was filed against the Debtor on February 21, 1989. On March 8, 1989, after a full evidentiary hearing, the Court ordered the appointment of a trustee. Shortly thereafter, on March 14, 1989, the Court entered an order for relief under Chapter 11. The following day, the Court entered an order requiring the Debtor to file a plan and disclosure statement by July 12, 1989. The U.S. Trustee appointed the Trustee on March 20, 1989.
After proper notice to all creditors and interested parties under Bankruptcy Rule 2002, an order of conversion was entered on February 26, 1990, pursuant to 11 U.S.C. § 1112(b)(1)-(4). The estate has been administered as an orderly liquidation *769 of the marshalled assets, concurrently with an intense investigation and review of the prior dealings of the Debtor. The Trustee received final compensation in the amount of $418,307.18 and expense reimbursement totaling $1,736.11 for his services as Chapter 11 Trustee. The U.S. Trustee appointed him interim Chapter 7 Trustee and he continues to so serve pursuant to 11 U.S.C. § 702(d).
III. ARGUMENTS OF THE PARTIES
A. The Trustee's Position
The Trustee asserts that he continued to marshal and sell substantial assets of the estate. The Trustee argues that he spent a great deal of time on the case during the period covered by the instant application, from February 26 to September 15, 1990. He claims that he devoted over 741 hours of time or seventy percent of his total time in the approximate six and one-half month period following conversion of the case and his continued appointment. Under a lodestar approach, at his current hourly rate for attorney's services of $190.00 per hour, his time would be normally billed out at only $140,885.00. His effective hourly rate under the original request would exceed $762.00 per hour and under the reduced request exceeds $539.00 per hour. As Trustee during the Chapter 7 phase of the case, exclusive of amounts turned over after conversion, which were liquidated during the Chapter 11 phase of the administration, he distributed to secured and administrative claimants the sum total of $18,708,178.31, and has generated additional cash of $128,168.73.
Under the sliding scale established by section 326(a), the maximum allowable fee was the amount originally requested, namely $565,270.41. Although the Trustee concedes that the lodestar approach is a relevant factor for the Court to consider, he argues that it is only one of many factors to be weighed including: benefit to the estate from the liquidation of nine parcels of real estate and three non-debtor operating corporations; his oversight and administration of the remaining non-debtor operating corporations and attempts to market and sell same; intricacies of the problems encountered with regard to the settlement of certain contested matters and adversary proceedings; the ongoing prosecution of others; the novelty and difficulty of some of the issues involved therein; the amounts involved; and the opposition encountered. Despite obstructive conduct of the Debtor, the Trustee asserts that but for his efforts in spearheading the favorable settlement of his motion to consolidate the Debtor's estate with the related corporate estates (the "Grabill" cases) administered by that trustee, costs attendant to such litigation would have substantially depleted the estate to the detriment of any future dividends potentially payable to unsecured creditors. Moreover, because several of the executives employed by non-debtor corporations (whose stock are part of the Debtor's estate, and hence under the Trustee's control) receive substantial compensation plus bonuses for their work, and the Grabill trustee received compensation of approximately $1,000,000, the Trustee concludes that he should be awarded the reduced request of $400,000.00.
B. Citibank's Position
Citibank objected to the Trustee's original request for the maximum amount allowable under section 326(a) as excessive, notwithstanding the excellent job done by the Trustee. Citibank apparently negotiated the voluntary reduction which is slightly more than two percent of the assets liquidated and disbursed. Citibank concludes that the reduced amount sought is consistent with the policy of the Bankruptcy Code to reward high caliber work and excellent results at a compensation level that significantly exceeds the straight lodestar approach.
C. CBT's Position
CBT points out that most of the assets liquidated and distributed during this phase of the case administration have been to secured creditors. Furthermore, CBT notes that during the Chapter 11 phase of the case, the Trustee devoted nearly 2100 hours and all of his time to the case, in marked contrast to the instant application time period during which he expended *770 741.5 hours and only seventy percent of his time. Thus, the Trustee is seeking more money for less work during an approximately six-month period than he was awarded for the one year period during the Chapter 11 phase of the case. In addition, CBT argues that it is uncertain when unsecured creditors might receive any dividend, in light of pending litigation and ongoing administrative expenses. Hence, it is inequitable for the unsecured creditors to effectively bear the burden of the compensation requested. CBT concludes that a more appropriate interim compensation award at this time would be approximately one percent of the liquidated asset base or $187,000.00, which is $46,000.00 more than a straight lodestar award. CBT notes that even a one and one-half percent compromise would yield approximately $280,000.00 or double the lodestar. CBT states that a one and one-half percent compromise was agreed to by the Grabill trustee, subject to a $1,000,000 cap, wherein a joint confirmed liquidating plan will yield a hundred percent payout for small unsecured creditors (less than $50,000.00) and a significant dividend for the large unsecured creditors. CBT parts company with both Citibank and the Trustee and asserts that the amount requested is the product of an overly inflated multiple lodestar approach.
D. Beverly's Position
Beverly echoes most of CBT's arguments, but amplifies some points and makes others in arguing for an interim allowance of $164,588.00. This total was arrived at by using the Trustee's usual billing rate of $190.00 per hour for many of the services rendered, and higher rates of $250.00 and $600.00 per hour for other work. Beverly contends that much of the work was routine in nature and not deserving of any higher rate of compensation than normally charged by the Trustee. Consequently, Beverly's principal attack is on the effective hourly rate the compensation request will cost the unsecured creditors. Beverly also asserts that much of the groundwork and efforts made were performed during the Chapter 11 phase of the case, in which the Trustee was fully compensated. Furthermore, he was ably and expensively assisted by various authorized professional persons whose awarded compensation was principally based on the lodestar approach. Because most of the current period distributions have been made to secured creditors, Beverly argues that they should bear a more equitable share of the Trustee's fees pursuant to 11 U.S.C. § 506(c), rather than the unsecured creditors who are absorbing the brunt of the requested fees.
Beverly also questions some of the Trustee's accounting in the instant application, necessitating the additional pleadings submitted by the Trustee. Beverly expresses concern and disputes the benefit of the Trustee's actions relating to certain assets not yet liquidated. Beverly raises the possible decline in the value thereof during the Trustee's administration, and other possible claims not pursued and perhaps now lost to the estate. Beverly strongly claims that it is premature at this time to determine that the Trustee has done such an outstanding job to allow the compensation requested. Much of the potentially time-consuming and expensive litigation was settled with minimal efforts and time expended because the parties involved realized that the costs thereof would far outweigh the dividend distribution from the resultingly depleted estate. Even though settlement was reached on most of the matters, the Trustee takes too much credit for his efforts, and some of the matters settled "cribbed" earlier settlements made by Beverly and other creditors. Beverly and CBT hold a substantial portion of the filed unsecured claims. As such, they are impacted by the ongoing costs of administration and this fee request. Beverly argues that although the Bankruptcy Code is designed to award reasonable compensation to bankruptcy trustees commensurate with what they can earn for their services outside of bankruptcy, it is not intended to enrich trustees to the level of millionaires at the expense of unsecured creditors who have yet to receive any dividend.
E. The Trustee's Response to the Objections
The Trustee responds that the objectors unduly emphasize the lodestar approach *771 and thereby essentially penalize him for economical and efficient case administration. Additionally, the Trustee claims he negotiated with undersecured creditors to pay the section 506(c) fees and commissions out of sale proceeds, which are asserted to total $91,726.00. As a result, of the $400,000.00 requested, only $308,274.00 would be in effect borne by the unsecured creditors. In response to the accounting questions raised by Beverly, the Trustee discovered one disbursement of over $452,000.00 was erroneously booked twice as having been paid. Pending litigation practically precludes an early partial dividend to unsecured creditors, so the Trustee argues, and his ongoing interim compensation requests should not be held hostage thereto. He contends that a significant dividend in the range of fifteen to thirty percent of allowed unsecured claims will be made in the near (but unspecified) future. He further points out that Citibank which holds approximately sixty percent of the filed unsecured claims supports the request. Accordingly, the Trustee concludes that allowance of $400,000.00 is both reasonable and necessary given the intangible benefits the estate has realized through his efforts.
F. The Trustee's Administration of Certain Assets
Beverly has raised some substantial questions not quite rising to the level of objections concerning the Trustee's administration of certain estate assets involving Grabill Aerospace Corporation and stock in Park-Kenilworth Industries ("PKI"). According to Beverly's arguments, during earlier periods of the administration of the estate, the Trustee had prior offers to dispose of the estate's interest in PKI, which in turn owned Douglas Dynamics ("DDI"), for a substantially higher amount than the present asking price. Beverly further contends that the Trustee may have a conflict of interest in wearing not only his Trustee's hat for the benefit of the instant estate to maximize the value of the sale price of the PKI stock, but also because he is wearing the hat as a fiduciary for PKI which has a claim, via its subsidiary DDI, against the estate. Hence, Beverly contends that there may have been some mismanagement by the Trustee relating to the drop in value of the PKI stock, which may not be solely attributable to a market decline.
Furthermore, Beverly questions the Trustee's investment policies on obtaining maximum rates of return for invested liquidated assets. Beverly also notes that the Trustee originally allowed the applicable statute of limitations under Bankruptcy Rule 4005 to run without filing objections to the Debtor's discharge, but salvaged the cause of action by taking an assignment of a timely filed objection to discharge from the Grabill trustee. Beverly further contends that much of the purported benefit, albeit intangible and not quantified to the estate on the litigation settlements, was achieved with minimal efforts because as Beverly's counsel aptly put it: "no one will spend thousands on attorneys' fees just to get three to four cents on the dollar dividend out of the bankruptcy estate."
The Trustee responds that the problems with PKI and its subsidiary DDI are based on vagaries of their markets and in the industries, and other economic conditions beyond his control. The Trustee further contends that he did not assert a potential fraudulent conveyance action under Wisconsin law against certain parties holding the senior debt of PKI because under that law such cause of action is a creditor's action, which would allegedly be of no benefit to the shareholder of PKI (the Debtor's estate) and thus would have produced no recovery for the benefit of the estate's creditors. The Trustee further contends that he has made the best investments he could, given the timing of the numerous payments to secured and administrative claimants. In addition, by taking the assignment of the cause of action from the Grabill trustee, the objections to discharge were preserved and have ultimately been settled.
Because the only evidence taken at the hearing was that of the Trustee, and no additional evidence on these various points was introduced by Beverly, the Court can make no findings or determination on these matters at this time, but their presence and the unresolved status of the PKI and DDI *772 assets mandates that these matters be resolved at a further date.
IV. STANDARDS AND AUTHORITIES
The principal controlling statutory authorities are 11 U.S.C. §§ 326(a), 330(a)(1) and (2) and 331 which provide as follows:
§ 326. Limitation on compensation of trustee.
(a) In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee's services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, and three percent on any amount in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.
11 U.S.C. § 326(a).
§ 330. Compensation of officers.
(a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor's attorney
(1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.
11 U.S.C. § 330(a)(1) and (2).
§ 331. Interim compensation.
A trustee, an examiner, a debtor's attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement.
11 U.S.C. § 331.
Interim fee awards are discretionary and are subject to reexamination and adjustment during the course of the case, and the Court may review the case at its conclusion and take into account the results obtained in making a final allowance. In re Jensen-Farley Pictures, Inc., 47 B.R. 557 (Bankr. D.Utah 1985).
Pursuant to Sections 330 and 331 of the Bankruptcy Code, all professionals applying for fees must demonstrate that their services were actual, necessary and reasonable. Section 330 prescribes the statutory standards for allowance of compensation to all professional persons, in contrast to section 326, which caps the maximum amount of compensation that may be awarded to Chapter 7 and 11 trustees. Sections 330(a) and 326(a) are independent of one another. Substantial case authority providing judicial gloss and construction of the controlling statutory authorities was discussed in the Court's prior Opinion concerning the Trustee's final Chapter 11 compensation. See In re Stoecker, 118 B.R. 596, 601-605 (Bankr.N.D.Ill.1990). Those authorities are equally applicable with respect to this matter, are incorporated by reference herein, and need not be repeated.
Additional authorities cited by Beverly stand for the proposition that the Court should be conservative in awarding compensation to a Chapter 7 trustee because the amounts involved and the results obtained, cannot be determined until the conclusion of the case. See In re Pennsylvania Tire & Rubber Co., 19 B.R. 124 *773 (Bankr.N.D.Ohio 1980); In re General Coffee Corp., 39 B.R. 7 (Bankr.S.D.Fla.1984). Both of those courts noted that interim awards under section 331 are intended to relieve professionals from "financing" protracted bankruptcy proceedings and should be used to prevent resulting hardship on the employed professional persons, pending final award, when all factors may be considered in their proper perspective. General Coffee in turn cites other decisions from the Fifth Circuit Court of Appeals rendered under the former Bankruptcy Act, holding that interim awards should be "well below any possible final allowance." Id. at 8. One secondary authority notes that it is appropriate to use a trustee's normal hourly billing rate applied to other commercial clients if the trustee is an attorney, in comparing the aggregate time charges against the statutory compensation base. See Bernstein & King, Bankruptcy Compensation Guide, ¶ 6.06[2] at 6-22 (1990).
V. DISCUSSION
A. Applicability of the Johnson Factors
Although the instant application involves the Trustee's interim fees subsequent to conversion, the methodology employed in the analysis is virtually identical to that contained in the Court's prior Opinion dealing with his final Chapter 11 fees. See Stoecker, 118 B.R. at 602-606. This is particularly applicable because from the beginning, this estate has been effectively administered as an orderly liquidation both pre- and post-conversion. All the various Johnson factors have been considered by the Court for purposes of this application.[1] As the Court has previously noted, allowance of fees under the current provisions of the Bankruptcy Code, Bankruptcy Rules and applicable judicial gloss, is an inherently subjective process for which resort to the Johnson factors and other precedent is had in order to attempt to utilize objective yard sticks and guidelines. Some of the arguments made by the Trustee are predicated on a subjective premise that unquantifiable and substantial amounts of assets have been saved from consumption through awards of administrative expenses because the worst did not happen and litigation was avoided. This premise is so subjective that it makes it impossible for the Court to utilize same in any effort to objectively award fees for work that was actually done. Rather than focusing on a worst case scenario of what might have occurred, what is important is what did happen and what services were rendered by the Trustee.
Many of the Johnson factors are of little help. The fifth factor dealing with customary fees is singularly inappropriate. Each fee application must be independently evaluated and examined on its own merits, and there is no customary fee for a case of this nature. Similarly, the sixth factor is virtually of no importance because the fees are not fixed or contingent, but allowed only after notice and hearing. The twelfth factor is also of little assistance as awards in similar cases are not particularly helpful in evaluating the services rendered by the Trustee in this case.
One of the most significant of the Johnson factors is the first, dealing with the time and labor required. Because the lodestar method of compensation is involved, the 741.5 hours expended by the Trustee administering and liquidating the estate is extremely important. Of equal importance is the third factor relating to the Trustee's skill required to perform the services properly. Although Beverly has raised some questions regarding the apparent decrease in value of some of the estate assets, there has been no real challenge made that the *774 Trustee's skills were other than excellent. During the application period, the Trustee had to manage several operating corporations which were non-debtor entities by virtue of the Debtor's majority or complete share ownership of same. In addition, the Trustee was required to deal with numerous parcels of substantially improved and valuable real estate in four states, and other tangible personal property, much of which was liquidated, reduced to cash, and disbursed.
The second Johnson factor, the difficulty and novelty of the questions presented, is not as weighty as the Trustee would argue. There were no new or unanticipated difficult questions which emerged during this phase of the case. Notwithstanding the fact that the estate asset pool is complex and diverse, and presents management and logistical difficulties because of the size thereof, the Trustee had the benefit of able and experienced attorneys, accountants, investment bankers and other professional persons to assist him.
The Trustee also argues that the fourth Johnson factor should be given great weight, namely his preclusion from other employment due to acceptance of the appointment as Trustee. No showing was made by the Trustee during the course of his testimony, however, of what other business he lost or turned down while he attended to the ongoing administration of this case. The Trustee further argues on this point that he bore a substantial risk of losing his appointment from the U.S. Trustee if his motion to consolidate the estate with the Grabill cases had been allowed. What this argument ignores is that such consolidation did not occur, the motion was never tried, and it was apparently settled without any substantial formal discovery. Accordingly, the Trustee's perceived risk of loss of his appointment was only potential and was never put to the test of trial. Therefore, relatively little weight should be placed upon the fourth Johnson factor.
The seventh Johnson factor dealing with the time limitation imposed by the circumstances is of no significant consequence. The events surrounding the Debtor and the condition of the estate was essentially known. The estate spent over one year prior to the application period in Chapter 11 without being reorganized. During that year, the Trustee was understandably trying to see the forest for all the trees. That is not the case, however, for the application period which covers about six months after the first year into the case. The Trustee argues that the case has significantly dominated his life for approximately two years, and therefore the application should be weighed accordingly. The response to that argument is that the Trustee knew, or should have known that at the inception of the case, and his acceptance of his original appointment, and more so at the time he accepted the interim appointment as Chapter 7 Trustee, that the administration of this complex estate involved a very substantial, if not massive commitment of his time and efforts. He has been adequately compensated which is an acknowledgement of his good work, and he will be amply paid on this application for his continuing efforts to date.
A more significant Johnson factor is the eighth factor concerning the amount involved and the results obtained. According to the application, in excess of $18,000,000 was liquidated and turned over to secured and administrative claimants. As the Trustee has noted, apparently without any challenge, many of the assets that were sold were liquidated at or near their respective appraised values. Moreover, some of the cash recovered resulted from settlements of various bankruptcy causes of action in which counsel for the Trustee was intimately involved assisting the Trustee in effectuating results favorable to the estate.
Much weight has been placed on the settlement of the substantive consolidation motion without trial, producing effective partial subordination of some of the Grabill direct creditors to those claimants who are direct creditors of the Debtor's estate. As the Trustee's attorney put it: "they stayed on their side of the ocean, we stayed on ours." This still begs the question of how much of a dividend will be paid out of the estate to the unsecured creditors. That ultimate result is presently uncertain, notwithstanding *775 the Trustee's opinion that a substantial dividend will be paid. Any "guesstimate" of a dividend is not the proper basis to effectively impose upon the unsecured creditors such burden of the entire amount presently requested. Although in light of the settlement, potential dividends for unsecured creditors will not be further diluted by competing Grabill estate claimants, the extent of the actual dividends to the unsecured creditors is not known at this point in time. The Trustee is certainly entitled to his opinion that his work on the settlement of the substantive consolidation issue was worth $400,000.00 alone. That is only his opinion, however, and is hardly an objective one. It has not been objectively quantified from the submissions made to the Court.
The Court notes that although substantial sums have been recovered and dispersed, most of the funds went to holders of secured claims. The Trustee's posthearing supplement to the application summarizes the section 506(c) recoveries obtained, and to be obtained from secured creditors. Pursuant to the Trustee's supplement, these creditors have agreed to reimburse the estate in excess of $91,000.00. Thus, the balance of the Trustee's request, over $308,000.00, would be payable to the Trustee from funds which would otherwise be available for distribution to unsecured creditors. Query: if the unsecured creditors have yet to receive any dividends, and most of the $18,000,000 has been distributed to the secured creditors who have made the section 506(c) payments to the estate, are not the unsecured creditors, at this stage of the proceedings, being asked to bear an undue share of the Trustee's interim fee? The answer is "yes".
Another important Johnson factor is the ninth factor relating to the experience, reputation and ability of the Trustee. No party has disputed the Trustee's experience, reputation and demonstrated ability in this case. He has been a trustee for thirteen years, has administered numerous estates in this district, and is currently administering several other substantial and complex large asset cases. The importance and recognition of the Trustee's experience, reputation and ability, however, are principally reflected in his regular hourly billing rate of $190.00 per hour, not an insubstantial sum. As pointed out by Beverly and CBT most cogently in their objections, the compensation requested is in excess of $539.00 per hour. Consequently, the Trustee's application reflects a substantial multiple of his regular lodestar billing rate.
The tenth Johnson factor dealing with the undesirability of the case is of little import. This is perhaps one of the most desireable and challenging cases for a trustee to administer, given the extent of the assets involved and the efforts made during the Chapter 11 administration to organize the estate and liquidate same. Likewise, the eleventh Johnson factor is of no significant impact. The "client" of the Trustee is essentially the Debtor's estate with which the Trustee has had the benefit of an ongoing relationship as Chapter 11 Trustee for approximately one year prior to the instant application period.
B. The Parameters of the Compensation to be Awarded
The parties have established appropriate parameters of compensation. The Trustee's request of $400,000.00 represents under a lodestar approach, a billing rate of $539.45 per hour, and is approximately 2.12 percent of the liquidated asset base of the estate disbursed during the application period. CBT has recommended that the Court take a balancing approach and award approximately one percent of the asset base or $187,000.00 which translates into approximately $253.00 an hour. CBT notes that if the Court were to award one and one-half percent of the liquidated asset base, that would produce an interim award of $282,489.00 or $381.00 per hour which is double the Trustee's regular hourly rate. The other end of the spectrum is Beverly's adjusted lodestar compensation of $164,588.00 or an hourly rate of $221.90. In contrast, a straight lodestar approach, not recommended by any party, would produce compensation of $140,885.00.
*776 In its final award to the Trustee for his Chapter 11 services, the Court determined that the best exercise of its equitable discretion would be to award the Trustee compensation in the sum of approximately two and one-half percent of the liquidated asset base. Moreover, earlier interim awards were allowed at the three percent maximum during the initial chaotic stages of the case after the order for relief was entered and the Trustee was initially appointed. Such interim awards during the initial Chapter 11 phase of the case were made without any creditor objecting to same, unlike the instant application. Those prior awards were made on an interim basis, reflecting the unknown state of affairs confronting the Trustee, coupled with the then greater complexity of the problems and time expended by the Trustee confronted with substantial lack of cooperation from many normal avenues and parties. Those conditions no longer exist. Therefore, the Court cannot, in the proper exercise of its equitable discretion, award the maximum compensation or any amount close to same at this time, notwithstanding the Trustee's excellent services and efforts. The Trustee principally bills on an hourly rate, hence, substantial weight must be given same, with some suitable adjustment to his lodestar rate to adequately afford him reasonable compensation, but not to the full extent requested.
All objectors including Beverly concede that some upward adjustment from straight lodestar compensation is both reasonable and necessary. The requested compensation effectively seeks a treble lodestar award and would, if allowed, be a windfall to the Trustee. Although his performance warrants something greater than a straight hourly lodestar formula, denial of the amount requested by the Trustee is not to be construed as any criticism by the Court of his work or efforts to date. No negative inference should be drawn by the Trustee from the Court's decision, but the Trustee seeks too much, too soon in this interim application. Compensation awarded herein is both reasonable and necessary at an effective lodestar rate plus one-third ($190.00 per hour + $63.33 per hour = $253.33 per hour). This produces allowed compensation of $187,844.19 (741.50 hours × $253.33 per hour) which is approximately one percent of the liquidated assets disbursed over the application period.
The allowance is substantially higher than the effective lodestar rate awarded the Trustee for his Chapter 11 work of approximately $197.00 per hour. The higher award made here is in recognition of the more tangible and positive results achieved during this period. Although not as much as requested, this award is not paltry by any approach, but more fairly balances the competing interests of the various parties and more equitably shares the costs among the creditors who effectively pay ongoing administration expenses while following the spirit and letter of existing precedent. The result is fair, reasonable and generous, but not excessive, thus consonant with the stated congressional policy. The Court, considering all relevant facts, and pursuant to its equitable discretion, hereby awards the Trustee $187,844.19 on this interim application without prejudice for the Trustee to reapply in his final application.
VI. CONCLUSION
For the foregoing reasons, the Court hereby awards the Trustee interim compensation in the sum of $187,844.19. The Trustee is authorized to disburse the sum of $23,256.19 as additional interim compensation under the instant application from the partial amount previously allowed without objection in the sum of $164,588.00.
This Opinion is to serve as findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.
NOTES
[1] The twelve Johnson factors are as follows: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 717-719.
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195 F.2d 1
UNITED STATESv.LAWINSKI.
No. 10528.
United States Court of Appeals Seventh Circuit.
March 5, 1952.
Rehearing Denied April 18, 1952.
Simon Herr, Chicago, Ill., for appellant.
Otto Kerner, Jr., U. S. Atty. Daniel P. Ward, Asst. U. S. Atty, Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
1
Defendant was charged in an indictment in seven counts with the unlawful transportation in interstate commerce of seven stolen Chevrolet automobiles, knowing the same to have been stolen, in violation of Section 2312, Title 18 U.S.C. In view of a variance between the averments and the proof, Count 4 was not submitted to the jury. Upon Counts 1, 2, 3, 5, 6 and 7 the jury returned a verdict of guilty. Defendant was sentenced to five years in the custody of the Attorney General, on each of Counts 1, 2 and 3, the sentences on Counts 2 and 3 to run concurrently with the sentence imposed on Count 1; five years on Count 5, to run consecutively to the sentences imposed on Counts 1, 2 and 3; five years on Counts 6 and 7 to run concurrently with the sentence imposed on Count 5. On appeal defendant assigns as error undue limitation of his cross-examination of the government witnesses, George Coulter, Virgil Wall, Henry Dybowski and Helen Ibsen.
2
Though the question presented on appeal is simply stated, its determination has involved a consideration of the factual issues at the trial and necessitated an examination of the evidence. The record reflects a sordid story of the adventures of three men in a concerted criminal undertaking. Henry Dybowski, also known as Jerome Stayer, a former bartender, Virgil Wall, a mechanic, and the defendant, Edwin Lawinski, a former racing driver, after some discussion, agreed that Lawinski would steal Chevrolet automobiles in Illinois; that Wall would change the motor numbers on the cars and that Dybowski and Lawinski would procure, through forged papers, Wisconsin licenses, and then dispose of the stolen vehicles. The proceeds of sale were to be shared by the three. That thieves do fall out is demonstrated by the fact that though Wall changed the numbers on the car first stolen and instructed defendant how to do so and received his part of the proceeds of sale of that car, his partners in crime apparently did not seek his aid as to any other of the six cars involved but handled the remainder of the operation themselves. Again illustrative of the truth, Dybowski, though he cooperated with defendant in the theft, transportation and disposition of the six cars mentioned in the indictment, apparently found it possible to dispense with Lawinski's help in disposing of fourteen other cars, with the theft of which defendant was not charged, at least in this case. In short, the evidence submitted by the government tended to prove and justified the jury in finding that defendant, in association with Dybowski, alias Stayer, stole the six automobiles, changed or caused the motor numbers thereon to be changed, by misrepresentation procured Wisconsin licenses therefor and then drove them, between the dates of November 23, 1949 and June 28, 1950 to Coon Rapids, Iowa, and there sold and delivered them to George Coulter, a dealer in automobiles and implements.
3
Coulter testified for the government that between November 23, 1949 and ending with June 28, 1950, at his place of business in Iowa, he bought the six vehicles from defendants, Lawinski and Dybowski, receiving with each car a bill of sale and giving to the two men his check for the purchase price. The evidence of titles received purported in each instance to represent valid Wisconsin titles. He said that he later reimbursed the persons to whom he sold the cars. This, in substance, was his entire testimony. He was questioned only as to transactions mentioned in the indictment and as to the automobiles delivered to him within the period covered by the indictment, that is, between November 23, 1949 and June 28, 1950. Though on cross-examination the court extended to his counsel liberal latitude, objections to certain interrogations were sustained.1
4
On cross-examination the witness was permitted to testify that he never saw either Dybowski or defendant until they approached him, together, in November, 1949, when they told him that Virgil Wall had sent them to him. He was exhaustively cross-examined as to these statements without restriction. In addition, he was permitted to testify that he got other cars from Dybowski, twenty in all, and last saw him in November 1950. Though his direct testimony covered only eight typewritten pages, his cross-examination covered twelve.
5
Defendant complains of the rulings in four respects. It is apparent that the question as to how many times between June 28, 1950, the last date charged in the indictment, and November, 1950, Coulter had seen Dybowski alias Stayer, was clearly beyond the scope of anything brought out in direct examination. It was wholly immaterial and irrelevant to the issues before the jury how many times Coulter saw Dybowski after the period covered by the indictment. Defendant offered no explanation as to the relevancy of the question except to intimate that it was asked in order to test the memory of the witness. The other inquiries related to the same subject matter, namely: who accompanied Dybowski on other trips to sell Coulter on occasions when Lawinski was not present. In other words, though the direct examination was confined to Coulter's purchases from defendant and Dybowski, defendant sought to bring out on cross-examination, information as to what third parties did on other occasions, not related in anywise to the charges of the indictment and wholly beyond the scope of questions asked on direct examination.
6
The witness Virgil Wall testified that in November, 1949, he taught defendant how to change motor numbers, that he himself changed the numbers on the car mentioned in Count 1 and that he participated in the money received from Coulter for that car. The government confined its direct examination to the transactions of Wall with the defendant. The questions on cross-examination, to which objections were sustained2 did not relate to those transactions but were in essence inquiries as to whether in 1948, long prior to the first date in the indictment, the witness was engaged in the theft of automobiles. This was clearly beyond the scope of the examination in chief. The trial court appreciated the fact that perhaps defendant was attempting to impeach the credibility of the witnesses and advised counsel that he might bring out, by means of cross-examination, evidence of participation by the witness in the charges against Lawinski as a matter of impeachment and that he might also, if he could, introduce evidence of previous convictions of the witness. The court remarked that it desired to allow counsel a wide latitude but that it did not want to get into collateral transactions not related to the indictment. The witness had testified that he had been convicted of the crime of transporting stolen automobiles. The court sustained objections to questions as to whether the witness had changed motor numbers on automobiles not involved in the indictment and as to how many stolen cars he had handled. What he had done with regard to cars not involved in this indictment was wholly irrelevant. If the questions were intended for impeachment purposes, proper methods of showing additional convictions of offenses, as advised by the court, might have been employed, if defendant was not satisfied with Wall's admission of convictions. Finally defendant complains that he was deprived of an opportunity to discover why Wall had not been indicted in this case, a question wholly irrelevant to the question of guilt or innocence of the defendant. True Wall was an accomplice but a liberal latitude was permitted in his cross-examination and why he had not been indicted in this specific case was a question not affecting defendant's guilt or innocence. Indeed the record discloses no evidence that Wall participated in the unlawful transportation. Inasmuch as Wall admitted he had been found guilty of other similar offenses, we think the limitation upon the cross-examination was sufficiently liberal as to protect fully defendant's rights.
7
Defendant's co-actor in crime, Dybowski, upon direct examination, testified that defendant agreed to steal cars and that he, Dybowski, "would get the titles in Wisconsin"; that defendant introduced him to Wall; that the three cooperated as to the car mentioned in Count 1. Lawinski was to steal the car, Wall to change the numbers and Dybowski to get the licenses. He said that defendant took him to Madison where he applied for and got licenses for the various cars mentioned in the indictment under assumed names; that defendant and he took the stolen cars to Coon Rapids; that defendant introduced him to Coulter as Stayer, a car dealer. He told the story of each car mentioned in the indictment. He said that after the first change of numbers, Wall changed no more but that defendant did and that thereafter the two split the proceeds two ways. On cross-examination he was permitted to testify that he had never engaged in stealing cars before he talked to defendant in 1949; that he never saw Coulter prior to November, 1949; that that was his first experience with stolen cars. He then testified as to other visits to Coulter, when defendant was not with him, delivering cars on which defendant had changed the numbers, admitted that he sold a car to Coulter in July, 1950, when defendant was not with him; said that he didn't know of anyone who changed numbers except Wall and defendant; that he didn't go to Coon Rapids in early December, 1949, or sell Coulter a car on December 6, 1949; that he had pleaded guilty to this charge and others and had made statements to the F.B.I. twice, and that he expected no reward or leniency.
8
The errors urged by defendant with respect to Dybowski's cross-examination appear in the footnote.3 Essentially the questions to which objections were sustained were, first, whether he had gone to Coon Rapids, Iowa, to sell cars with persons other than Lawinski. The court ruled that it would permit such cross-examination if it related to the period within the charges of the indictment, not beyond that. The witness was then asked whether he had had anybody change numbers on automobiles other than Lawinski and the court limited him to the period covered by the indictment plus a month before and a month later. He was asked whether he ever went to see Wall with anybody other than Lawinski. The court limited the question to the period covered by the indictment. He was asked how many cars in all he had sold Coulter. He replied that he had sold 19. But the court confined the cross-questioning to the cars sold within the period covered by the indictment. The court also sustained an objection to an inquiry as to whether defendant had been a partner in all of Dybowski's transactions with Coulter, ruling that any transactions in stolen cars after the time mentioned in the indictment were immaterial and irrelevant.
9
All these questions related to matters wholly outside the indictment and wholly irrelevant to the question of whether defendant was guilty. They could have been justified only as attempts to impeach the credibility of the witness. Of course impeachment may always be shown by proof of statements by the witness other than those made on the stand and by evidence of conviction of crime. That the trial court was fully cognizant of the importance of complete cross-examination of Dybowski and Wall is apparent from its charge, in which it advised the jurors that they should be absolutely certain in their minds that Dybowski was telling the truth, that the testimony of each Wall and Dybowski was subject to grave suspicion and was to be acted upon with great caution and that they should convict the defendant only if satisfied of his guilt beyond all reasonable doubt not only from testimony of Dybowski and Wall but from all the evidence. With this charge the defendant expressed no dissatisfaction. In a similar situation the court said in Schwartz v. U. S., 56 App.D.C. 105, 10 F.2d 900, 901: "In the court's charge to the jury the rights of the defendant were carefully safeguarded, and the charge apparently was satisfactory to him, as no exception was noted. We have carefully considered, but found without merit, the various questions raised by the defendant in the separate brief filed by him."
10
Helen Ibsen was another witness whom defendant says he was not permitted to cross-examine sufficiently.4 Questions asked her were as to whether she had gone to Madison with Dybowski to obtain fictitious titles to automobiles or whether she signed any applications for titles to automobiles at his suggestion. These inquiries related in no way to matters about which she had been examined in chief and defendant does not suggest in what manner the evidence was material, relevant or otherwise proper on cross-examination.
11
We recognize that it is of the essence of a fair trial that reasonable latitude be extended to the cross-examiner, and that prejudice may ensue from a denial of the opportunity to place a witness in his proper setting and put the weight of his testimony and his credibility to a test. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. We realize also that at times, under the pressure of work in an over-loaded trial court, in a desire to speed up trials, there may be an involuntary tendency upon the part of the trial judge to restrict cross-examination unduly, thus endangering the validity of verdicts upon review. Defendant's protection at the hands of the court in this respect is of the utmost importance. Therefore, in view of the valuable rights involved and the tendency we have at times observed, we have given careful examination to the record here and scanned closely the testimony, upon both direct and cross examination, in an effort to assure ourselves that defendant's rights have been fully protected.
12
We have observed that in each instance the questions to which objections were sustained were beyond the scope of the examination in chief, that they were not so framed as to constitute proper methods of impeachment, and that the court extended a liberal latitude to counsel for defendant in cross-examination. The rule in federal courts governing the proper scope of cross-examination has never been more simply stated than by Mr. Justice Story in Philadelphia & T. Ry. Co. v. Stimpson, 14 Pet. 448, 10 L.Ed. 535, in these words: "A party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination." In view of the universal acceptance of and adherence to this rule, it is unnecessary to mention the innumerable decisions repeating it. Illustrative is Sutherland v. U. S., 4 Cir., 92 F.2d 305, 308, where the court said: "His direct examination was confined to a denial of the specific crime charged; and nothing is better settled than that a witness, whether a party or not, may not be asked questions as to irrelevant matters on cross-examination for the purpose of contradicting his answers and thus discrediting him. 70 C. J. 805; United States v. Dickinson, 25 Fed.Cas. [page] 850, No. 14,958, 2 McLean 325; Odiorne v. Winkley, 18 Fed. Cas. [page] 581, No. 10,432."
13
Legal history has proved that the rule is conducive "to the systematic and orderly trial of causes." 5 Jones on Evidence 4579. However a well known exception to the rule is recognized, and that is that collateral matters may be gone into on cross-examination to a limited extent for the purpose of testing the witness' credibility. Thus, inquiries may properly be directed to the witness' interest, his motives, his prejudices or hostilities, his means for obtaining knowledge of the fact, his power of memory, his way of life, his associations and to any pertinent circumstances affecting his credibility. Within this exception also lie certain methods of impeachment, such as his statements contrary to his direct testimony, and convictions for crime.
14
These relaxations of the general rule governing the proper scope of cross-examination, however, obviously cannot be defined with certainty to fit all occasions; their extent and limitations will depend upon the particular facts and circumstances of the case on trial. Generally, therefore, it is recognized that determination of where those limitations lie is within the sound discretion of the trial court. It is for the presiding judge to exercise a wise discretion in determining whether, considering the examination in chief, it is fit and proper that the questions presented be permitted or excluded. Storm v. U. S., 94 U.S. 76, 24 L.Ed. 42. All the decisions agree that the latitude allowed should be great enough to subserve ends of justice; but once fixed by the trial court it can not be deemed erroneous except where it is clear that that discretion has been abused, even though the discretion is necessarily vague in extent. It is a "sound, though undefined, judicial discretion, depending upon the circumstances of the particular case". Norfolk & S. R. Co. v. Fentress, 127 Va. 87, 102, 102 S.E. 588, 589. Thus, in Blitz v. U. S., 153 U.S. 308 at page 312, 14 S.Ct. 924, at page 925, 38 L.Ed. 725, the court said: "The question was clearly irrelevant, and was properly excluded. * * * If the object was to test the accuracy or credibility of the witness, it is quite sufficient to say that the extent to which a cross-examination may be allowed for such a purpose — especially where, as in this case, the question had no reference to any matter disclosed by the examination in chief — is largely subject to the sound discretion of the trial court, and the exercise of that discretion is not reviewable upon writ of error; certainly not where the question, upon its face, suggests nothing material to the inquiry whether the defendant is guilty or not guilty of the specific offense charged in the indictment." And in Jelke v. U. S., 7 Cir., 255 F. 264 at page 288, this court said: "There is certainly a limit to the extent that a witness may be cross-examined. Nor is it proper for an able counsel to convert a cross-examination into an argument to the jury.
15
"The trial judge is in the best position to determine how far the cross-examination should proceed, and, when convinced that the facts are all presented and fairly before the jury, the examination of a witness, either on direct or cross examination, should cease." See also Nashville Interurban Ry. v. Barnum, 2 Cir., 212 F. 634 at page 640; United States v. Hornstein, 7 Cir., 176 F.2d 217 at page 220; Radin et al. v. U. S., 2 Cir., 189 F. 568 at page 575; Resurrection Gold Min. Co. v. Fortune Gold Min. Co., 8 cir., 129 F. 668 at page 681; Harrold v. Territory of Oklahoma, 8 Cir., 169 F. 47 at page 53; Quigley v. U. S., 1 Cir., 19 F.2d 756 at page 759; Despiau v. U. S. Casualty Co., 1 Cir., 89 F.2d 43 at page 44.
16
Despite the exceptions to or relaxations of the general rule, relevancy to the direct examination can not be ignored; it is still essential. Thus the Court of Appeals for the Ninth Circuit in Dillard v. U. S., 141 F. 303 at page 310, held that a witness cannot be impeached by showing contradictory statements made by him which are not relevant to any issue in the case. This was followed by the Third Circuit in U. S. v. Hannon, 105 F.2d 390 at page 392, certiorari denied. See to the same effect Ridenour v. U. S., 3 Cir., 14 F.2d 888; Miller v. U. S., 3 Cir., 6 F.2d 463; Washington, etc. R. Co. v. Smith, 53 App.D.C. 184, 289 F. 582 at page 588.
17
Upon full consideration of this record, remembering that the trial court was bound to exercise a sound discretion, examining the questions to which objections were sustained, the testimony of the respective witnesses on direct examination, the latitude extended by the court, we are unable to say as a matter of law that the court abused its discretion in its limitation on the cross-examination of any of the witnesses. None of the cases cited by defendant impinges upon the soundness of this conclusion.
18
The judgment is affirmed.
Notes:
1
The specific questions asked Coulter to which objections were sustained were as follows:
"Q. Between June 28, 1950 and this date in November you have just mentioned, how many times did you see Jerome Stayer?
* * * * * *
"Mr. Ward: Objection. That is not cross-examination.
"The Court: Sustained.
* * * * * *
"Q. How many times, other than these, (the cars mentioned in the indictment) did Jerome Stayer bring more than one car to your place of business? (Not answered.)
"Q. Can you state who accompanied him on these occasions?
"Mr. Ward: Objection as going beyond the scope of the examination.
"The Court: Sustained.
* * * * * *
"Q. Did Jerome Stayer come to your place of business with anyone other than Edwin Lawinski?
"Mr. Ward: Objection, your Honor, it exceeds the scope of the direct examination.
"The Court: Limit it to any of these dates he was talking about, (those in the indictment).
"Mr. Herr: Other days.
"The Court: No, sustained.
"Q. How many times in all was Jerome Stayer at your place of business?
"Mr. Ward: Objection again, as being covered.
"The Court: It is already answered."
2
The specific questions to the witness Virgil Wall objections to which were sustained were as follows:
"Q. Had you at that time (that is, in 1948) engaged in the theft of cars? Objection sustained.
"Mr. Herr: He is an accomplice * * *.
"The Court: You may bring out any participation in the steps described in this indictment and any previous convictions of felonies.
* * * * * *
"Q. When did you first make the statement?
"Mr. Ward: We will submit that is objectionable. I can't see its relevancy. It is clearly outside of the scope of the direct examination.
"The Court: Unless there is some reason for it, I do not see that it has any materiality.
"Mr. Herr: I think it has.
"The Court: What is it you want to bring out?
"Mr. Herr: When he made the statement he made known his complicity and if he be guilty of part of this affair that he has no indictment against him by reason of it.
"The Court: He has an indictment against him on the subsequent phases.
"Mr. Herr: Not on this one.
"The Court: Well, he has answered that he has not. Whether he gave the statement to the government investigators or not is immaterial. Sustained. He has answered your question and on this particular one November 1949 he was not indicted.
* * * * * *
"Q. Did you ever sell any cars prior to November 1949? A. I think I have.
"Q. How many? A. I would not know.
"Q. Receive checks on those transactions? A. Yes.
"Q. Where did you obtain those cars?
"Mr. Ward: Objection, your Honor.
"The Court: That goes too far. Sustained. As far as it may relate to this transaction, I want to give you a wide latitude. I do not get into any other transactions, since they are immaterial.
"Q. Did you change the numbers on other cars?
"Mr. Ward: Objection, your Honor, it is improper.
"The Court: Sustained.
"Q. How many cars in all have you handled that were stolen cars, driven from one state to another?
"Mr. Ward: I submit counsel knows that is an improper question.
"Mr. Herr: I do not know anything about that.
"The Court: A conviction of a felony.
"Mr. Herr: Then I have no further questions, your Honor."
* * * * * *
3
The specific questions propounded to Henry Dybowski and the allegedly erroneous rulings thereon are as follows:
"Q. Had you been to Coon Rapids on any occasion to sell cars other than with Edwin Lawinski? A. Yes.
"Mr. Ward: Objection, your Honor, it exceeds the scope of the direct examination and is not germane to the issues in this case.
"The Court: If it is during the same period, I will permit him to testify. During the time that he testified on direct you may inquire.
"Mr. Herr: Yes.
"The Court: But not beyond that.
* * * * * *
"Q. Did you have anybody at any time change the numbers other than Ed Lawinski?
"Mr. Ward: Objection to the form of the question, your Honor. Within the ruling that was just given by the Court, it is clearly objectionable.
"The Court: Yes. Confine to the time he may answer. I cannot hear.
"Mr. Herr: What was your Honor's ruling?
"The Court: During the period of time he testified on direct and within a month or so either way.
* * * * * *
"Q. And were those numbers changed?
"Mr. Ward: Your Honor, we will object to this because it is purely beyond the scope of the ruling as your Honor indicated, September, 1950.
"The Court: When was the last one he testified to on direct?
"Mr. Ward: June, your Honor.
"Mr. Herr: June, 1950.
"The Court: Yes, that goes beyond that.
* * * * * *
"Q. Did you ever have any girls go up with you? A. Not during that time, no.
"Q. On other occasions?
"Mr. Ward: Objection. That is improper.
"The Court: Sustained.
* * * * * *
"Q. How many cars in all did you sell to Coulter at Coon Rapids, Iowa? A. Nineteen.
"Mr. Ward: Objection, your Honor.
"The Court: Unless you confine it to this period.
"Mr. Herr: In every instance where you sold cars to Coulter at Coon Rapids, Iowa, was Ed Lawinski a partner?
"Mr. Ward: Objection.
"The Court: Again, confine it to the period of this indictment.
* * * * * *
"The Court: If you have something other than that which you want to put in the record, or an offer of proof out of the presence of the jury, you may do it now.
"Mr. Herr: I offer to prove, if the court please, that the witness Henry Dybowski, stole and dealt in stolen cars from November 29, 1949, in a series of transactions embracing seventeen distinct dates as follows: October 14, 1950; June 28, 1950 (pen note `should not have been included'); February 2, 1950; August 25, 1950; July 18, 1950; September 29, 1950; August 25, 1950; July 18, 1950; April 13, 1950; March 1, 1950; December 30, 1949, being occasions other than the ones named in the indictment on which the case is now being tried.
* * * * * *
"On oral argument counsel stated that the inclusion of June 28, 1950 in the foregoing list was an error and that there were not seventeen other offenses but ten."
* * * * * *
4
The specific questions and rulings pertinent are as follows:
"Q. Have you gone to Madison, Wisconsin, with Henry Dybrowski to obtain fictitious titles to automobile?
"Mr. Ward: We object to that.
"The Court: Sustained.
"Mr. Herr: Or licenses to automobiles?
"Mr. Ward: Objection.
"The Court: Same rule.
"Mr. Ward: Sustained?
"The Court: Sustained.
"Q. During the year 1950, did you at any time go to Madison, Wisconsin, with Henry Dybowski and make an application for titles to automobiles?
"Mr. Ward: Again, the repeated objection, your Honor.
"The Court: The same ruling.
"Mr. Herr: Did you ever sign any application for titles to automobiles that were applied for in Madison, Wisconsin, at the instance of Dybowski?
"Mr. Ward: Your Honor, because you sustained at least three objections to counsel's identical questions, we submit that counsel knows that that line of questioning is improper.
"The Court: Yes. Objection sustained to that last question and any further questions.
"Mr. Herr: If the Court holds that line of inquiry is improper I will refrain. I think the form may be.
* * * * * *
"Q. Did you ever sign any of the papers he typed up on that typewriter?
"Mr. Ward: Objection.
"The Court: If they were typed on the typewriter in your house, she may answer.
"A. I don't know if they were typed in the house.
"The Court: Did you ever sign any that were there? A. I signed them without knowing what I signed."
* * * * * *
| {
"pile_set_name": "FreeLaw"
} |
660 F.2d 527
9 Fed. R. Evid. Serv. 387
UNITED STATES of America, Plaintiff-Appellee,v.Pok Sin BOWERS, Defendant-Appellant.
No. 80-7794
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Unit B
Sept. 2, 1981.
William L. Kirby, II, Columbus, Ga. (court-appointed), for defendant-appellant.
William Adams, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before TJOFLAT, FAY and HENDERSON, Circuit Judges.
PER CURIAM:
1
Pok Sin Bowers was convicted, following a jury trial in the district court, for cruelty to a child in violation of the Georgia child abuse statute, Ga.Code Ann. § 26-2801(b) (1980), as it applies to a federal reservation through the Assimilative Crimes Act, 18 U.S.C. § 13 (1976). She appeals, asserting several grounds for reversal. None has merit, and we therefore affirm.
2
The facts developed before the jury were as follows. On the morning of March 26, 1980, Bowers, a resident of Fort Benning, Georgia, went to the home of a neighbor, Mrs. Galliday, and stated that she had struck her two and a half year old daughter, Kimberly, and that Kimberly might be dead. Record, vol. 2 at 7. According to Bowers, she struck Kimberly for wetting her pants, then Kimberly somehow fell into an empty bathtub. The two women immediately took Kimberly to the nearby Martin Army Hospital.
3
When Kimberly arrived at the hospital she had no heart beat and was not breathing. Dr. Broughton, a pediatrician, along with a cardiac arrest team and several other physicians attempted for forty-five minutes to resuscitate the child but were unsuccessful. Bowers told Dr. Broughton that she had been having a problem with Kimberly's bowel training and sometimes had responded to the problem by inflicting physical punishment on the child. Bowers admitted that earlier that day she had pushed Kimberly into the empty bathtub for not having used the bathroom properly.
4
Dr. Broughton found multiple bruises on Kimberly's chest, arms and head which appeared to have been present for a couple of weeks. Dr. Grant, a pathologist, performed an autopsy which disclosed bruises on Kimberly's scalp, face, chest, back, and right lung, a scar on the inner surface of the lower lip, a fracture of the left side of her skull, a broken collar bone, a small tear in the liver and a lacerated heart which, the doctor concluded, was the immediate cause of death.
5
Appellant claims, on appeal, that the district judge committed reversible error in admitting, over her objection, testimony of Dr. Broughton concerning the "battered child syndrome." Dr. Broughton testified that battered child syndrome is a general term used to describe any kind of abuse or neglect to a child in the first three years of his life; the syndrome may arise from sexual, emotional, physical or nutritional abuse, and any resulting injuries are usually inconsistent with the parent's explanation of them. Dr. Broughton opined that Kimberly had been suffering from battered child syndrome, and that the nature of her injuries belied the history given by her mother.
6
The court was well within its discretion in allowing this testimony to come before the jury. Testimony describing the battered child syndrome has been approved in several state jurisdictions. See, e.g., State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Goblirsch, 309 Minn. 401, 246 N.W.2d 12 (1976); People v. Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657, 304 N.E.2d 358 (1973); People v. DeJesus, 71 Ill.App.3d 235, 27 Ill.Dec. 448, 389 N.E.2d 260 (1979); Ashford v. State, 603 P.2d 1162 (Okl.Cr.1979); Commonwealth v. Labbe, 373 N.E.2d 227 (Mass.App.1978); People v. Jackson, 18 Cal.App.3d 504, 95 Cal.Rptr. 919 (4th Dist. 1971). Proof that a child suffers from the battered child syndrome may show that the parent's explanation of the child's injuries is a fabrication. Henson, 33 N.Y.2d at 74, 349 N.Y.S.2d 665, 304 N.E.2d at 364; Jackson, 95 Cal.Rptr. at 921. Moreover, evidence that the victim was a battered child, coupled with proof that the child was in the sole custody of the parent, may well permit the jury to infer not only that the child's injuries were not accidental but that they occurred deliberately, at the hands of the parent. Henson, 33 N.Y.2d at 74, 349 N.Y.S.2d 665, 304 N.E.2d at 364.
7
Appellant next argues that the trial court erred in sustaining the government's objection to questions put to Dr. Jack Raines regarding her intent to kill Kimberly. The trial court ruled:
8
You can ask him whether he thinks she intended to mistreat the child on that date, but your question was did she intend to kill the child. She is not charged with murder. You can ask him about the question of intent as it relates to this case.
9
Record, vol. 2 at 158.
10
We fail to see how this line of questioning was relevant to any issue in the case. Appellant was not charged with murder; consequently, whether she intended to kill her child was of no moment. Furthermore, we think the doctor's opinion, given his limited role as a court appointed psychiatrist, of appellant's intent when she abused her child on the fatal morning of March 26, 1980, would have been speculative, at best, and thus devoid of probative value.
11
Appellant argues that the jury was unduly prejudiced by the government's introduction in evidence of a color photograph of the child's lacerated heart. The photograph was clearly relevant. Under Fed.R.Evid. 403, however, the court may have been required to exclude the evidence "if its probative value (was) substantially outweighed by the danger of unfair prejudice." The court's decision to allow the evidence, after striking this balance, is reversible error only if we find that it was an abuse of discretion. United States v. Authement, 607 F.2d 1129, 1131 (5th Cir. 1979). To be sure, the photograph had the potential to inflame the jury, but we consider it no more inflammatory than photographs that portray the sort of death suffered by the victim in this or any other case where the circumstances surrounding death are at issue. United States v. Kaiser, 545 F.2d 467, 476 (5th Cir. 1977). The photograph, here, was essential to the government's case if it was to meet its burden of showing that appellant brought cruel and excessive physical force to bear on her child. We cannot say that the prejudice inherent in the photograph substantially outweighed its probative value. We hasten to add that the mere fact that appellant stipulated with the government as to the cause of death did not preclude the government from offering proof on that issue. United States v. Spletzer, 535 F.2d 950, 955 (5th Cir. 1976); Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958).
12
Appellant contends that the court's final charge to the jury was faulty in two respects. First, she complains that the trial court refused to give her Requests to Charges Number One and Three, record, vol. 1, at 21, 23, which went to the issue of intent. Second, she claims that the trial court's remark, "Only the defendant really knows what her intent was," record, vol. 2, at 169, had the effect of shifting the burden of proof to her. The question for us "is whether the court's charge as a whole was a correct statement of law." United States v. Grote, 632 F.2d 387, 391 (5th Cir. 1980), pet. for cert. filed, 49 U.S.L.W. 3744 (1981).
13
Appellant's first contention is meritless. The trial court properly instructed the jury on the issues of intent. The court stated:
14
Now, in this case, as in all criminal cases, before you would authorized (sic) to find the defendant guilty of the offense which has been charged against her, it must appear that these two things are true: First, that she did the thing with which she is charged. And second, that she did the thing knowingly and willfully, and with intent to evade or to violate the law which applies in such a situation.
15
I charge you that a person who knowingly does an act which the law forbids, intending with bad purpose either to disobey or to disregard the law may be found to act with criminal intent. An act is done knowingly if it is done voluntarily, purposely and not simply because of mistake or inadvertance or some other innocent reason.
16
Record, vol. 2, at 168-69. Contrary to appellant's assertion, the jury was informed that the crime charged required both an act and intent. The court's instruction concerning how the jury was to determine intent was actually consistent with appellant's Request to Charge Three. The court explained that appellant's intent could be decided by "looking at all the circumstances surrounding what was done ..." in addition to statements, acts or omissions, "which would aid (the jury) in determining her state of mind." Record, vol. 2, at 169-170. Appellant's second contention is likewise without merit. The court's statement that only appellant really knew her intent was merely an effort by the court to advise the jury that "intent ordinarily may not be proved directly, because there is no way of fathoming or scrutinizing the operations of the human mind." United States v. Chiantese, 560 F.2d 1244, 1256 (5th Cir. 1977) (en banc), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1978), quoting with approval, Federal Jury Practice & Instructions § 14.13 (1977). The court's explanation in no way shifted the burden of proof to appellant nor did it deviate from our mandate in Chiantese and United States v. Lentz, 624 F.2d 1280, 1290 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1696, 68 L.Ed.2d 194 (1981).
17
Appellant asserts that the court committed reversible error in taking judicial notice that "Fort Benning, Georgia, is on land which is property of the United States and is under the jurisdiction of (the) United States." Record, vol. 2, at 173, 181. The alleged vice in this instruction is the court's failure to inform the jurors that they were not bound to accept the noticed fact. Appellant cites Fed.R.Evid. 201(g), which states:
18
In a criminal case, the Court shall instruct the jury that it may, but is not required to accept as conclusive any fact judicially noticed.
19
Rule 201 "governs only judicial notice of adjudicative facts," Fed.R.Evid. 201(a), and not legislative facts. Consequently, appellant's argument turns on the characterization of the fact judicially noticed. The Eighth Circuit has observed thatLegislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.
20
United States v. Gould, 536 F.2d 216, 220 (8th Cir. 1976). The fact that Fort Benning is under federal jurisdiction is a well established fact appropriate for judicial notice. United States v. Benson, 495 F.2d 475, 481-82 (5th Cir.), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 310 (1974). Unlike an adjudicative fact, this fact does not change from case to case but, instead, remains fixed. Consequently, the court committed no error in failing to instruct the jury it could disregard the judicially noticed fact.
21
Appellant's final contention is that the record is devoid of any evidence, circumstantial or direct, establishing that the charged offense was committed within a federal enclave; the trial court therefore lacked subject matter jurisdiction. Although territorial jurisdiction and venue are essential elements of any offense, this Circuit has held that territorial jurisdiction or venue are not to be treated as essential elements in the sense that they must be established by proof beyond a reasonable doubt. United States v. White, 611 F.2d 531, 536 (5th Cir.), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849 (1980). Rather, venue, i.e., the location of the criminal activity, need only be established by a preponderance of the evidence. United States v. Luton, 486 F.2d 1021, 1023 (5th Cir.), cert. denied, 417 U.S. 920, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974); Gov't of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979).
22
Applying this standard of proof, we find that the evidence was sufficient to show that appellant physically abused her child within the confines of Fort Benning. Appellant resided on that military reservation; her statements to Mrs. Galliday and to Dr. Broughton indicated that the events that culminated in Kimberly's death took place there. These admissions were sufficient for the jury to infer that the charged crime was committed where the venue was laid, and that is all that was required. Luton, 486 at 1023.
23
We find nothing approaching reversible error in this record; accordingly, the conviction is
24
AFFIRMED.
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454 F.2d 210
In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor.Appeal of Richard Joyce SMITH, Trustee of the New York, NewHaven & Hartford Railroad.Appeal of The NEW YORK, NEW HAVEN & HARTFORD RAILROADCOMPANY FIRST MORTGAGE 4% BONDHOLDERS COMMITTEE.
Nos. 71-1582, 71-1734.
United States Court of Appeals,Third Circuit.
Submitted under Third Circuit Rule 12(6) Oct. 22, 1971.Decided Jan. 3, 1972.
Spencer Ervin, Jr., Tate & Ervin, Philadelphia, Pa. (Sullivan & Worcester, Boston, Mass., Tate & Ervin, Philadelphia, Pa., James Wm. Moore, New Haven, Conn., Joseph Auerbach, Morris Raker, Boston, Mass., on the brief), for Richard Joyce Smith.
Harold Greenberg, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for New York, New Haven, etc., Bondholders Committee.
Brice M. Clagett, Covington & Burling, Washington, D.C., for appellee.
Before ALDISERT, GIBBONS and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
1
These appeals originally required an interpretation of Order No. 296 of the District Court for the Eastern District of Pennsylvania, In The Matter of Penn Central Transportation Company, Debtor.1 Appellants contended initially that the order (1) precluded the New Haven Trustee from taking steps to apply to the United States Supreme Court for certiorari before judgment of the Court of Appeals of the Second Circuit in In The Matter of The New York, New Haven and Hartford Railroad Company, Debtor, a pending appeal from the bankruptcy court, the District Court for the District of Connecticut, No. 30226; (2) prevented them from taking necessary steps to schedule further proceedings before the Interstate Commerce Commission to implement the remand of the New Haven bankruptcy court and (3) prevented them from taking further action to record or perfect the recordation of an equitable lien.2 After filing these appeals, the parties agreed that Order No. 296 does not prevent appellants from pursuing the course of conduct contemplated by (1) and (2).
2
*****
3
* * *
4
*****
5
* * *
6
Subsequent to a Prehearing Conference, called by the court pursuant to F.R.A.P. 33, the parties conferred with the district court, at our suggestion, on any restrictions relating to point three, and were advised:
7
In my opinion, neither the New Haven Trustee nor his counsel, nor anyone else acting at their request or suggestion, could take any further action to record or perfect the recordation of the "equitable lien" without violating Order No. 296 as it now stands. Accordingly, if these activities were to be permitted, a modification of Order No. 296 would be required. It would be necessary for someone to make application for such amendment, and there would have to be a hearing at which the views of all interested parties could be presented.
8
I believe it would be inappropriate for me to give any indication of whether such amendment would be approved, in the absence of a formal application, and without having heard the views expressed at such a hearing. I do not know whether your conference with the Third Circuit panel would justify the conclusion that this issue should be dealt with somewhat less formally than I have just indicated. But even if this question could be disposed of informally, I do not believe I have any jurisdiction to amend Order No. 296 while an appeal is pending.
9
We believe that the ends of justice will be best served by remanding these proceedings to the district court to afford appellants the opportunity to make application for a modification of Order No. 296.
10
The appeals will be dismissed without prejudice and the proceedings will be remanded to the district court.
1
AND NOW, this 21st day of June. 1971, upon consideration of the verified Petition of the Trustees on Matters Relating to New Haven Inclusion, the record in these proceedings, the "Memorandum of Decision on Issue of Equitable Lien and Other Matters Preliminary to Remand to Interstate Commerce Commission." filed June 11. 1971 (Memorandum Decision) by the United States District Court for the District of Connecticut (New Haven Court) in Proceedings for the Reorganization of a Railroad, No. 30226, and upon hearing had this day, it is hereby ORDERED:
(1) The Trustees, by their counsel, are instructed to appear before the United States District Court for the District of Connecticut (New Haven Court) in proceedings for the reorganization of The New York, New Haven and, Hartford Railroad Company (New Haven), and to present objections to the entry of any order on, or any implementation of, the Memorandum Decision which is beyond the jurisdiction of the New Haven Court or which would interfere with the reorganization of the Debtor herein or the jurisdiction of this Court with respect thereto and to present objections on such other grounds as to the trustees or their counsel shall seem appropriate; and the Trustees are further instructed to advise the New Haven Court that their participation in such proceedings is without prejudice to the primary jurisdiction of this Court in the reorganization of the Debtor; and the Trustees are instructed to institute appropriate proceedings in this Court or elsewhere in aid thereof.
(2) The Trustee of the property of The New York. New Haven and Hartford Railroad Company. The Fidelity Bank, all other persons claiming an interest in the New Haven estate, the officers, agents, servants, employees and attorneys of any of them, and all other persons. firms or corporations, whatsoever and wherever situated. and whether a party to these proceedings or not, are hereby enjoined from taking any action which would enforce, collect or cause to be perfected or paid any claim against the Debtor or its estate arising out of the inclusion of the New Haven into the Debtor, other than in these proceedings, or which would interfere with the primary jurisdiction of this Court to deal with properties in its possession or under its control pending further order of this Court.
(3) The Trustees are directed to continue to divide all income derived from properties formerly owned by the New Haven and from the so-called "Grand Central Terminal Properties" to defray current expenses of the Debtor's estate except as heretofore or hereafter ordered by this Court.
(5) A hearing is set in this Court at 10:30 a. m. on the 26th day of July, 1971, at the United States Courthouse, Ninth and Market Streets, Philadelphia, Pennsylvania, at which time this Court will consider whether it should adjudicate, and may adjudicate the rights of the Trustees in the properties conveyed to the Debtor by the Trustees of The New York, New Haven and Hartford Railroad Company. in the Grand Central Terminal Properties, and in the income therefrom, and will determine whether or not to continue the foregoing relief, and to consider such other or further relief as may be required to preserve and effectuate the jurisdiction of this Court.
2
The New Haven bankruptcy court "recapitulated its principal rulings as follows: that it has plenary jurisdiction to construe and implement the mandate of the Supreme Court; that this obligates the Penn Central Trustees to see that the New Haven estate is fully compensated for the remaining balance of $132 million; and that under the unusual circumstances of this case this court should and does declare an equitable lien in favor of the New Haven on the tangible property, exclusive of rolling stock, conveyed by it to Penn Central and also declares a constructive trust, in the New Haven's favor, to the extent of the capitalized value of one-half of the excess income received from the Grand Central properties. It remands the plan of reorganization to the Interstate Commerce Commission to carry out and implement this court's adjudication."
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 11, 2005
DOMINGO PONCE v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Marshall County
No. 16234 Charles Lee, Judge
No. M2004-02257-CCA-R3-CO - Filed May 31, 2005
The Petitioner, Domingo Ponce, filed a petition for writ of error coram nobis, which the trial court
summarily dismissed. On appeal, the Petitioner contends that the trial court erred when it dismissed
his petition. Finding no reversible error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.
Domingo Ponce, pro se, Tiptonville, Tennessee.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
On July 29, 2003, the Petitioner pled guilty to one count of kidnapping, and the trial court
sentenced him to four years in prison. On August 16, 2004, the Petitioner filed a petition for writ
of error coram nobis, alleging that his plea was involuntarily entered and that he received ineffective
assistance of counsel. The Petitioner alleged that his counsel lied to him by telling him that he would
be allowed to remain in the country after the completion of his sentence, when, in fact, he was going
to be deported. Further, the Defendant alleged that the State withheld from the Defendant a
statement from the kidnapping victim, who was also the Defendant’s girlfriend, which would have
impacted the Defendant’s decision to enter a guilty plea. The trial court dismissed the petition
stating that “on it[s] face the writ doesn’t allege any newly discovered evidence.” It is from this
judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that the trial court erred because: (1) his trial counsel
“explicitly promis[ed]” him that he could “go home” within a few months; (2) the State threatened
that the Petitioner would spend life in prison if he failed to enter a guilty plea; (3) he was not
provided an interpreter; (4) the state failed to provide him exculpatory evidence; (5) he was not given
proper jail credits; (6) his counsel was ineffective; and (7) the cumulative effect of these errors
created a manifest injustice.
Under certain circumstances, a criminal defendant may file for a writ of error coram nobis.
Tenn. Code Ann. § 40-26-105 (2003). A writ of error coram nobis is an extraordinary remedy by
which the trial court may provide relief from a judgment under narrow and limited circumstances.
State v. Mixon, 983 S.W.2d 661, 666 (Tenn.1999). This remedy is available only when an unknown
issue was neither addressed, nor able to be addressed, at trial and may have resulted in a different
judgment. Tenn. Code Ann. § 40-26-105, State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App.
1995). The remedy is available by statute to a criminal defendant in Tennessee. See Tenn. Code
Ann. § 40-26-105. This statute provides, in pertinent part:
Upon a showing by the defendant that the defendant was without fault in failing to
present certain evidence at the proper time, a writ of error coram nobis will lie for
subsequently or newly discovered evidence relating to matters which were litigated
at the trial if the judge determines that such evidence may have resulted in a different
judgment, had it been presented at the trial. The issue shall be tried by the court
without the intervention of a jury, and if the decision be in favor of the petitioner, the
judgment complained of shall be set aside and the defendant shall be granted a new
trial in that cause.
When the petition addresses newly or subsequently discovered evidence, the evidence must be
admissible under the rules of evidence and material to an issue raised in the petition. Hart, 911
S.W.2d at 375. The petition must state:
(1) the grounds and the nature of the newly discovered evidence;
(2) why the admissibility of the newly discovered evidence may have resulted in
a different judgment had the evidence been admitted at the previous trial;
(3) the petitioner was without fault in failing to present the newly discovered
evidence at the appropriate time; and
(4) the relief sought by the petitioner.
Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998) (citing Hart, 911 S.W.2d at 374-
75). Moreover, the decision to grant or deny a petition for writ of error coram nobis on the ground
of newly discovered evidence rests within the sound discretion of the trial court. Hart, 911 S.W.2d
at 375; see Tenn. Code Ann. § 40-26-105.
-2-
In the case under submission, we conclude that the trial court did not abuse its discretion
when it dismissed the Petitioner’s petition. Again, we note that the Petitioner must show that the
he lacked fault in failing to present certain evidence at the proper time. In the petition, the Petitioner
must state “ the grounds and nature of the newly discovered evidence [and] . . . why the admissibility
of the newly discovered evidence may have resulted in a different judgment had the evidence been
admitted at the previous trial.” Further, he must state why he was not at fault for presenting these
issues at the time of the trial or guilty plea hearing. The Petitioner asserts that: (1) his trial counsel
“explicitly promis[ed]” him that he could “go home” within a few months; (2) the State threatened
that the Petitioner would spend life in prison if he failed to enter a guilty plea; (3) he was not
provided an interpreter; (4) the state failed to provide him exculpatory evidence, (5) he was not given
proper jail credits; (6) his counsel was ineffective; and (7) the cumulative effect of these errors
created a manifest injustice. Initially we note that the Petitioner has provided no citations to the
record to support his arguments. Rule 10(b) of the Rules of this Court provides as follows: “Issues
which are not supported by argument, citation to authorities, or appropriate references to the record
will be treated as waived in this court.” Even if not waived, the issues are without merit.
The Petitioner has not provided a transcript of the guilty plea hearing, so we are unable to
examine the questions asked of the Petitioner prior to entering his plea. Under these circumstances,
we must conclude that the trial court did not abuse its discretion when it found that the Petitioner was
not entitled to relief on issues (1) and (2). As to issue (3), the Petitioner asserts that the trial court
failed to provide him an interpreter. This is not an appropriate ground for relief pursuant to a writ
of error coram nobis. A writ of error coram nobis will lie for subsequently or newly discovered
evidence relating to matters which were litigated at the trial, if the judge determines that such
evidence may have resulted in a different judgment, had it been presented at the trial. The
Petitioner’s inability to understand English does not qualify as “newly discovered evidence relating
to matters which were ligated.” Furthermore, it is clear from the record that the Petitioner, who is
acting pro se, is capable of writing grammatically correct and complex filings, some of which are
handwritten.
Regarding issue (4), the Petitioner asserts that the State failed to provide him exculpatory
evidence. He points to statements from the alleged victim and states “these statements had high
probative value in determining whether to so enter a plea or go to trial.” The trial court, again, did
not abuse its discretion when it found that the Petitioner was not entitled to relief on this ground.
First, the Petitioner does not attach the statements, and the statements are not in the record. Also,
the Petitioner failed to provide the contents of the statements and failed to assert how these
statements may have resulted in a different judgment.
Issue (5) regarding proper jail credits and issue (6) regarding the ineffective assistance of
counsel are not appropriate grounds for relief pursuant to a writ of error coram nobis.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the judgment of
-3-
the trial court.
___________________________________
ROBERT W. WEDEMEYER, JUDGE
-4-
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107 F.3d 870
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Donna Mae KNOWLTON, Plaintiff-Appellee,v.Virgil BROWN, individually and in his capacity as ExecutiveDirector of the Ohio Lottery Commission,Defendant-Appellant.
No. 95-4274.
United States Court of Appeals, Sixth Circuit.
Jan. 3, 1997.
Before: MARTIN, KEITH, and BATCHELDER, Circuit Judges.
BATCHELDER, Circuit Judge:
1
The plaintiff filed this action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of Ohio, which denied the defendant's summary judgment motion based on the merits and on qualified immunity. The defendant appeals.
I. BACKGROUND
2
In her complaint, plaintiff Donna Mae Knowlton, a registered Democrat, alleges that in September 1991, defendant Virgil Brown, the new executive director of the Ohio Lottery Commission ("OLC"), discharged her from her position as OLC Region 6 manager, a position authorized by Ohio statute as unclassified in the civil service. She alleges she performed her job well and did not assist the OLC director or Ohio Governor George Voinovich, a Republican elected in 1990 to succeed Democrat Richard Celeste, in formulating policies. Instead, she implemented their policies. She claims she had minimal discretionary authority, did not handle matters of partisan political interest, owed no special duty of loyalty to any of her superiors, and was not in a fiduciary relationship with them.
3
Knowlton says she has organized fundraisers for, and contributed to, the Ohio Democrat Party, and was a campaign coordinator for former Ohio State Treasurer Mary Ellen Withrow, also a Democrat. Knowlton alleges that Brown dismissed her due to the change in gubernatorial administration. By discharging her due to her political beliefs and her association with her party, she alleges Brown violated her rights under the First and Fourteenth Amendments to the United States Constitution. U.S. CONST. amends. I, XIV.1
4
In moving for summary judgment, the defendant made four contentions. One of the four was that political affiliation is an appropriate factor in determining who will be regional manager. Another of the four was qualified immunity. The defendant appeals only on these two issues, which are related. See, e.g., Blair v. Meade, 76 F.3d 97, 100 (6th Cir.1996) (citing Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789 (1991)).
5
In denying summary judgment on whether political affiliation is an appropriate factor, the district court held that a reasonable jury could conclude that political affiliation was not an appropriate requirement for the position of regional manager. The court also held that the defendant was not entitled to qualified immunity, an issue we need not reach if the plaintiff has no First Amendment claim to begin with.
II. DISCUSSION
6
The relevant case law includes Elrod v. Burns, 427 U.S. 347, 375, 96 S.Ct. 2673, 2690 (1976) (Stewart, J., concurring), and Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295 (1980) ("the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved"), which we recently explored at length in McCloud v. Testa, 97 F.3d 1536 (6th Cir.1996).
7
We have held that the Branti exception "in political patronage cases is to be construed broadly, so as presumptively to encompass positions placed by the legislature outside of the 'merit' of civil service." McCloud, 97 F.3d at 1542; see also Rice v. Ohio Dep't of Transp., 14 F.3d 1133, 1141 n. 7 (6th Cir.1994). We look to the duties of the regional manager "both in the abstract and as envisioned by the new" director. Rice, 14 F.3d at 1140 (citing Faughender v. City of North Olmstead, Ohio, 927 F.2d 909, 913-14 (6th Cir.1991)). We may consider the defendant's testimony regarding whether political affiliation is an appropriate factor in determining who will be regional manager, but such testimony alone is not dispositive. See, e.g., Meade, 76 F.3d at 100-01; Rice, 14 F.3d at 1136-38, 1141.
8
The defendant's first contention is correct. The district court erred in holding that it was within the province of the jury to decide whether political affiliation was an appropriate requirement for the position of regional manager. The limits of what is appropriate under Branti is a question for the court. Rice, 14 F.3d at 1142.
9
We recognize that the defendant testified that nothing about the regional manager's job makes political affiliation a job requirement or hiring consideration, and the OLC's assistant director and the human-resources administrator each testified similarly. After reviewing the testimony, and the rest of the record, as a whole, however, we conclude that given the breadth of the Elrod/Branti exception, see Rice, 14 F.3d at 1141 n. 7, it was "appropriate" to consider the plaintiff's party affiliation, cf., e.g., Blair, 76 F.3d at 99, 100-02 (defeated judge executive's purchasing agent/chief financial officer/office manager, and bookkeeper/assistant to the financial officer); Rice, 14 F.3d at 1141-43 (administrative assistant to one of 12 deputy directors of the Ohio Department of Transportation); Faughender, 927 F.2d at 913-14 (mayor's secretary), and that the facts of this action are so similar to those of Rice in relevant respects that the plaintiff cannot prevail consistently with Rice. Therefore, contrary to the plaintiff's assertion, her discharge did not infringe her rights under the First Amendment.
III. CONCLUSION
10
We REVERSE the order of the district court and REMAND this action with instructions to enter summary judgment for the defendant.
1
The Supreme Court has long held that the Fourteenth Amendment applies the First Amendment to the states. E.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630 (1925) (freedom of speech and freedom of the press)
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825 So.2d 20 (2002)
Dwight L. HASTINGS
v.
Walter L. GUILLOT, III.
No. 2001-CA-00867-SCT.
Supreme Court of Mississippi.
August 29, 2002.
*21 David M. Ratcliff, attorney for appellant.
Deidra J. Bassi, attorney for appellee.
Before SMITH, P.J., CARLSON and GRAVES, JJ.
CARLSON, Justice, for the Court.
¶ 1. Dr. Dwight L. Hastings appeals from a chancery court order enforcing a settlement agreement resolving his litigation against Dr. Walter L. Guillot, III, arising from the sale of Hastings's dental practice to Guillot. Finding no reversible error, we affirm.
FACTS AND PROCEEDINGS BELOW
¶ 2. This is an appeal from Jones County Chancery Court from an order to enforce a settlement involving the sale of a dental practice from Dr. Dwight L. Hastings (Hastings) to Dr. Walter L. Guillot, III (Guillot). Hastings filed a complaint for breach of contract on August 19, 1999, alleging that Guillot had failed to make payments pursuant to the terms of the sale. Hastings sued to recover $59,180.44, the amount remaining on the note. Guillot answered the complaint on September 3, 1999, and counterclaimed, arguing that Hastings "intentionally and fraudulently misrepresented and/or concealed and/or omitted material information relating to the financial data and net worth of the practice."
¶ 3. On February 25, 1993, Hastings and Guillot entered into an Asset Purchase *22 Agreement in which Hastings agreed to sell his Laurel dental practice to Guillot. Included in the agreement were equipment and various other dental office wares, as well as the transfer of Hastings's patient files to Guillot. The purchase price of the entire transaction was $111,890.00, with $22,378.00 paid in cash at closing. Hastings financed the balance of the transaction (evidenced by a promissory note) totaling $89,512.00, which was to be paid in monthly installments over the course of the following ten years.
¶ 4. Hastings filed suit on August 19, 1999, alleging that Guillot had failed to make payments on the promissory note since May 1998 and claimed the entire balance was due. Guillot answered and counterclaimed, stating that he had discovered improprieties in Hastings's billing practices which directly affected the financial value of the practice and constituted fraud and misrepresentation. It was after he discovered these problems that he ceased making payments. Guillot sought cancellation or rescission of the contract and damages.
¶ 5. On November 6, 1999, the depositions of Hastings and Guillot were scheduled to take place. Guillot's deposition was finished that morning. A break for lunch was taken shortly after Hastings's deposition had begun, and settlement negotiations were initiated. An offer was made by Guillot to Hastings. Counsel for Hastings, made a counter-offer. Guillot made a second offer, which, Guillot alleges, Hastings accepted. The court reporter was released from service.
¶ 6. On November 10, 1999, counsel for Guillot sent a "Mutual Release and Settlement Agreement" to counsel for Hastings. Counsel for Guillot received a phone call on November 22, 1999, advising counsel for Hastings had been fired and that Hastings now refused the settlement.
¶ 7. Counsel for Guillot filed a Motion to Enforce Settlement on November 24, 1999. New counsel entered an appearance as counsel for Hastings on December 15, 1999. A hearing was held on the Motion to Enforce Settlement on January 19, 2000. Having filed no prior affidavits to refute the settlement, Hastings filed such an affidavit on February 2, 2000.
¶ 8. The trial court ordered the case to mediation on July 12, 2000. An objection to mediation was filed by Hastings on July 17, 2000, which was withdrawn on September 8, 2000. The parties agreed to set the matter for trial on June 19, 2001.
¶ 9. After a hearing on May 8, 2001, the trial court entered an order granting Guillot's Motion to Enforce Settlement. The court then entered a final order enforcing the settlement and dismissing the case. The order provided for the dismissal of the action, a payment of $10,000 by Hastings to Guillot, Guillot's return of patient records to Hastings, and the cancellation of the security agreements between Guillot and Hastings. This appeal followed.
STANDARD OF REVIEW
¶ 10. This Court will not disturb the findings of a chancellor unless it is shown the chancellor was clearly erroneous and the chancellor abused his discretion. Hill v. Southeastern Floor Covering Co., 596 So.2d 874, 877 (Miss.1992), Bell v. Parker, 563 So.2d 594, 597 (Miss.1990).
DISCUSSION
¶ 11. At issue in this appeal is whether the chancellor abused his discretion in granting an order enforcing the settlement agreement. In order to answer that question, we must ask if there was indeed a binding settlement.
*23 I. WAS THERE A MEETING OF THE MINDS?
¶ 12. In his brief, the Hastings cites Viverette v. State Highway Comm'n, 656 So.2d 102 (Miss.1995). Viverette provides guidance on where to begin this inquiry. As we wrote in Viverette, in order for there to be a settlement there must be a meeting of the minds. Thomas v. Bailey, 375 So.2d 1049, 1052 (Miss.1979) (citing Hutton v. Hutton, 239 Miss. 217, 230, 119 So.2d 369, 374 (1960)). A settlement is a contract. McManus v. Howard, 569 So.2d 1213, 1215 (Miss.1990). Also, Mississippi law requires the party claiming benefit from the settlement must prove by a preponderance of the evidence that there was a meeting of the minds. Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992).
¶ 13. In Viverette, we found that there was insufficient evidence of a meeting of the minds and reversed an order of the trial court enforcing the settlement. We so found because there was distinct confusion as to what the final settlement was. Additionally, one of the witnesses to the proposed settlement was a convicted perjurer, and his testimony was rightly excluded by the trial court. If there were any confusion as to the proposed settlement in the case sub judice, it is not evidenced in the record, nor was there exclusion of testimony of either parties because of perjury convictions. We find the Viverette case a satisfactory statement of the law, but not factually analogous to the case sub judice.
¶ 14. Guillot contends that the only evidence Hastings presented refuting the suggestion that there was a meeting of the minds was his affidavit of February 2, 2000. This appears in the record to be the case, and that affidavit does very little other than deny there was any meeting of the minds. All that the law requires is that Guillot, the beneficiary of the settlement, show, by a preponderance of the evidence, that there was a meeting of the minds. We find this has been achieved.
¶ 15. The record includes testimony from Guillot's attorneys regarding the day of the deposition and settlement negotiations. Hastings's former attorney refused to testify as to what transpired during the depositions and settlement negotiations, due to the fact that, according to him, Hastings had threatened to sue him if he did.
¶ 16. Perhaps the most compelling evidence that a meeting of the minds had been achieved was the release of the court reporter before the scheduled depositions were concluded. Afterwards, a release and settlement statement were prepared and sent to counsel for Hastings. Had there been no meeting of the minds, there would have been no such documentation prepared. Without a meeting of the minds, the attorneys would have proceeded with the case, not prepared settlement documents. Even though there was no discussion about the settlement being contingent on it being reduced to writing, it appears this was simply the next logical step after a settlement agreement had been reached.
¶ 17. Accordingly, we find there was a meeting of the minds and Guillot proved by a preponderance of the evidence that such occurred.
II. DID THE CHANCELLOR ABUSE HIS DISCRETION BY VOIDING A PORTION OF THE "MUTUAL RELEASE AND SETTLEMENT AGREEMENT" AS AGAINST PUBLIC POLICY AND ENFORCING THE REMAINDER?
¶ 18. Hastings argues that the settlement is void because the chancellor *24 abused his discretion by voiding a part of the settlement and enforcing the other.
¶ 19. In the second numbered paragraph of the trial court's final judgment, the chancellor voided a portion of the agreement: "The Court further finds that any agreement by Dr. Walter Guillot regarding reporting any actions taken by Dr. Hastings is against public policy and shall not be considered a part of settlement." Basically, part of the proposed settlement included an agreement that Guillot would not report any of Hastings's actions to the State Dental Board.
¶ 20. We do not find Hastings's arguments responsive to this issue. In his brief, Hastings states that in order to establish a contract, there need be an offer, acceptance, and consideration. See Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1029(fn3) (Miss.2000). Hastings argues what is required to establish a contract and then argues that the facts in the case sub judice reveal that no contract was established. His argument does not address the issue of public policy. Finding no case law to the contrary, and recognizing it is well within the chancellor's authority to void parts of a contract as violative of public policy, we find nothing rising to the level of abuse of discretion in the chancellor's actions in this regard.
¶ 21. A review of the record reveals that the chancellor noted it would be good public policy not to enforce this portion of the agreement because "we need people who will come forward and report wrong doing if it occurs." Certainly, the trial court was more than justified in finding that it was contrary to public policy to enforce this term of the settlement by keeping improprieties quiet.
¶ 22. Hastings further argues that by the chancellor's removal of this portion of the contract, he has removed the only beneficial aspect of the agreement for Hastings: that he would not be reported to the State Dental Board. To argue that the only benefit to Hastings is to avoid defending himself from possible criminal prosecution as well as loss of a dental license is not a valid argument. Moreover, Hastings benefits from having all claims Guillot may file in the future settled.
¶ 23. Accordingly, the trial court did not err in finding that there was indeed an offer, acceptance, and consideration.
III. MISSISSIPPI LAW REGARDING SETTLEMENTS
¶ 24. The law favors the settlement of disputes by agreement of the parties and, ordinarily, will enforce the agreement which the parties have made, absent any fraud, mistake, or overreaching. First Nat'l Bank v. Caruthers, 443 So.2d 861, 864 (Miss.1983); Weatherford v. Martin, 418 So.2d 777, 778 (Miss.1982).
¶ 25. It is well-settled that "where conflicting testimony is presented, expert and otherwise, the chancellor is required to make a judgment on the credibility of the witnesses in order to resolve the questions before the court." Broadhead v. Bonita Lakes Mall, Ltd. P'ship, 702 So.2d 92, 101 (Miss.1997); Doe v. Doe, 644 So.2d 1199, 1207 (Miss.1994).
¶ 26. The record in the case does not reveal anything approaching "fraud, mistake, or overreaching" as the law requires. Moreover, the chancellor was in the best position to decide that issue, as well as the credibility of the witnesses. We see nothing besides the affidavit of Hastings (which merely says there was no settlement), which refutes that there was a settlement. The testimony of Guillot's attorneys as well as the affidavits they submitted give specific instances of what happened on the day of the settlement. Hastings's affidavit merely denies ever having agreed to settle. *25 The evidence shows a settlement was achieved.
¶ 27. While there may be what appears to be disputed testimony in the record as to whether there was a settlement agreement, the testimony and affidavits submitted by Guillot are far more specific than the general denial offered by Hastings. Moreover, the court reporter was sent home and wrote a letter to that effect. After the deposition and the agreement on the settlement, Guillot's counsel prepared the settlement documents. Certainly, from the record before us, the trial court was well justified in its findings.
CONCLUSION
¶ 28. The chancellor did not abuse his discretion in enforcing the settlement between Guillot and Hastings. Guillot met his burden of proving a meeting of the minds by a preponderance of the evidence and the settlement was not the product of fraud, mistake, or overreaching. Mississippi law favors settlement where legitimately achieved. Therefore, the judgment is affirmed.
¶ 29. AFFIRMED.
PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.
COBB, Justice, concurring in part and dissenting in part:
¶ 30. I concur with the majority's determination that Hastings initially consented to the settlement. However, I write separately to dissent from the portion of the majority's opinion which holds that public policy justified the chancellor's voiding of the provision in the contract that prohibited Guillot from initiating any action against Hastings by a third party. The chancellor's stated justification for doing so was that "we need people who will come forward and report wrong doing if it occurs." The majority finds that this reason "more than justifie[s] ... finding that it was contrary to public policy to enforce this term of the settlement by keeping improprieties quiet."
¶ 31. Although I agree with the chancellor's good intentions, I believe that his method of correcting a perceived wrong is improper. This ad hoc creation of a public policy in this instance is an abuse of discretion, because for nearly a hundred yearssince Orrell v. Bay Manufacturing Co.this Court has recognized only a narrow scope for the exercise of this "far reaching and easily abused" power to rewrite contracts on the grounds of public policy. Cappaert v. Junker, 413 So.2d 378, 380 (Miss.1982) (quoting State ex rel. Knox v. Edward Hines Lumber Co., 150 Miss. 1, 115 So. 598 (1928)); see Orrell v. Bay Mfg. Co., 83 Miss. 800, 824, 36 So. 561, 564 (1904); accord, Heritage Cablevision v. New Albany Elec. Power Sys., 646 So.2d 1305, 1313 (Miss.1994). "[W]e have held that this should not be done unless the contract is prohibited by the Constitution, a statute, or condemned by some decision of the courts construing the subject matter." Id. (quoting Cappaert, 413 So.2d at 380); see also Jackson v. Sam Finley, Inc., 366 F.2d 148, 154 (5th Cir.1966) (recognizing "restrictive view" taken by Orrell and its progeny), cited in Simons v. City of Columbus, 593 F.Supp. 876, 880-81 (N.D.Miss.1984), aff'd mem. 805 F.2d 1031 (5th Cir.1986).
¶ 32. Rather than relying on any such authority, the chancellor chose to exercise his discretion in creating such an exception, contrary to Cappaert's holding. There was no showing that Guillot was *26 under any legal duty to report any perceived improprieties that might be suggested by Hastings's records. Nor was there any proof of criminal behavior by Hastings that Guillot was binding himself not to report. If that were the case, there is some authority to hold such a promise to be unenforceable. See, e.g., Baker v. Citizens Bank, 282 Ala. 33, 208 So.2d 601, 606 (1968).
¶ 33. Because the trial court's legal authority to void a contract on public policy grounds is strictly limited, the failure to remain within the bounds set by Cappaert and its predecessors is an abuse of discretion. Cf. City of Madison v. Bryan, 763 So.2d 162, 168 (Miss.2000) (failure to cite proper authority for imposition of sanctions is an abuse of discretion). The majority's statement that it finds no authority contrary to the chancellor's exercise of power is inapposite, because our precedents clearly require that the power to void contracts in the name of public policy requires positive precedent. Cappaert cannot be read as allowing judges to void contracts as they wish, so long as no precedent specifically prevents them from doing so.
¶ 34. While the majority may well be correct that a contractual provision such as that in question here should be void as against public policy, it is for the Legislature to set the public policy in this regard. Miss. Const. art. 7, § 198 ("The legislature shall enact laws to prevent all ... contracts... inimical to the public welfare.").
EASLEY, J., JOINS THIS OPINION.
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United States Court of Appeals
for the Federal Circuit
______________________
February 24, 2014
ERRATA
______________________
Appeal No. 2013-7038
MARIELLA B. MASON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee,
Decided: February 21, 2014
Precedential Opinion
______________________
Please make the following changes:
Page 3, delete “[J.A. at 51]”, “[BB at 1 n.1]”, and “[J.A.
98]”
Page 4, delete “[J.A. 96]” and “[J.A. at 100]”
Page 6, delete “[BB at 10]”
Page 7, delete “[RB at 19-20]”
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2179
(D.C. No. 1:16-CR-00841-MV-1)
CHRISTOPHER ULIBARRI, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, McKAY, and McHUGH, Circuit Judges.**
_________________________________
I. BACKGROUND
The district court revoked Christopher Ulibarri’s supervised release because it
found, after an evidentiary revocation hearing, that he had committed a domestic violence
crime. For the supervised release violation, it sentenced him to 24 months in prison, the
maximum term under 18 U.S.C. § 3583(e)(3). The court also placed him on supervised
release for an additional 10 months after his release, and included a special condition
regarding his mental health medications.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
On appeal, Mr. Ulibarri challenged the sentence as substantively unreasonable.
He also challenged the special condition, arguing it was “vague, overbroad, more
restrictive than necessary, and not medically appropriate,” Aplt. Br. at 20, and “made
no provision for Mr. Ulibarri to get assistance in paying for the medication if he is
unable to pay for it,” id. at 15. After the appeal was filed and briefed, the following
sequence took place:
April 5, 2018 - In reference to the special condition, we ordered the parties to
“show cause in writing why this case should not be remanded for the district court to
consider discrepancies between oral statements made at sentencing and the written
judgment.” Doc. 10548855 at 1.
April 18, 2018 - In their joint response, the parties agreed that a remand to the
district court would be appropriate for that court to conform its written judgment to the
oral statements made by the district court at sentencing. Doc. 10552237 at 1-2.
April 19, 2018 - We “direct[ed] a limited remand for the district court to take any
action it deems necessary to resolve the discrepancies between its written judgment and
the oral statements made at sentencing.” Doc. 10552477 at 1. We also abated the appeal.
Id.
May 21, 2018 - The parties submitted a joint status report stating that the district
court had entered an amended judgment. Doc. 10560507 at 1. The amended judgment
contained a revised special condition of supervised release that addressed Mr. Ulibarri’s
mental health medications. Id., attached.
May 22, 2018 - We lifted the abatement and ordered the parties to identify the
issue(s) on appeal that this court should decide. Doc. 10560737 at 1-2.
May 31, 2018 - The parties filed a joint notice advising that “the only remaining
issue in this appeal is whether or not Mr. Ulibarri's sentence is substantively
unreasonable.” Doc. 10563306 at 1.
As a result of the foregoing, the special supervised condition regarding mental
health medications is no longer an issue on appeal. The only remaining issue is Mr.
2
Ulibarri’s challenge to the substantive reasonableness of his prison sentence. Exercising
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.
II. SUBSTANTIVE REASONABLENESS OF THE SENTENCE
The parties agree that the district court correctly calculated the Sentencing
Guidelines range for Mr. Ulibarri’s violation of supervised release to be 24 to 30 months
and that, under 18 U.S.C. § 3583(e)(3), the maximum term of imprisonment upon
revocation was 24 months. The district court sentenced him to 24 months.
A. Substantive Reasonableness
A substantive reasonableness sentencing challenge asks us to address “whether
the length of the sentence is reasonable given all the circumstances of the case in
light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin–Garcia,
516 F.3d 884, 895 (10th Cir. 2008) (quotations omitted); see Gall v. United States,
552 U.S. 38, 51 (2007). We “review the substantive reasonableness of a sentence for
abuse of discretion.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013).
We find no abuse unless the sentence “is arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Munoz–Nava, 524 F.3d 1137, 1146 (10th
Cir. 2008) (quotations omitted).
When, as here, a defendant is sentenced within a properly calculated United
States Sentencing Guidelines range, the sentence “is entitled to a rebuttable
presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054 (10th
Cir. 2006) (quotations omitted). “The sentencing judge is in a superior position to
find facts and judge their import under § 3553(a) in the individual case.” Gall, 552
3
U.S. at 51 (quotations omitted). “The judge sees and hears the evidence, makes
credibility determinations, has full knowledge of the facts and gains insights not
conveyed by the record.” Id. (quotations omitted).
B. The Parties’ Arguments
Both sides only briefly addressed the substantive reasonableness issue.
Mr. Ulibarri argues that his sentence was unreasonable because it is longer
than his original sentence for a felon in possession offense under 18 U.S.C. § 922(g)
and did not account for how his mental health condition contributed to his supervised
release violation. He also contends the district court did not explain why the length
of the sentence was necessary. Aplt. Br. at 24-25.
The Government argues that the district court considered the violent
circumstances of his supervised release violation and the § 3553(a) factors. It
contends we must defer to the relative weight that the district court gave to Mr.
Ulibarri’s mental health condition and his threat to the community. Aplee. Br. at 25-
26.
In his reply brief, Mr. Ulibarri faults the district court for failing to explain its
rationale for the 24-month sentence. Reply Br. at 12-13.
C. Analysis
The district court sentenced Mr. Ulibarri to the low end of the Guidelines
range. His sentence is therefore entitled to a presumption of reasonableness. See
Kristl, 437 F.3d at 1054. At the sentencing phase of the revocation hearing, the
district court said that it had “considered the factors set forth in 18 U.S.C. [§]
4
3553(a)(1)-(7).” ROA Vol. 2, at 62. Mr. Ulibarri’s complaint that his revocation
sentence was greater than the sentence for his underlying offense does not account
for the undisputed Guidelines range of 24 to 30 months for the supervised release
violation.
His criticism that the court gave insufficient weight to his mental health
condition is unavailing. First, the court paid considerable attention to Mr. Ulibarri’s
mental health issues in fashioning the special supervised release conditions, id. at 63-
65, and addressed them in its colloquy with him about the sentence, id. at 69.
Second, on review for substantive reasonableness, this court does not second-guess
“the weight a district court assigns to various § 3553(a) factors” or “its ultimate
assessment of the balance between them.” United States v. Smart, 518 F.3d 800, 808
(10th Cir. 2008); see United States v. Lewis, 625 F.3d 1224, 1233 (10th Cir. 2010).
Finally, Mr. Ulibarri’s argument that the district court failed to explain the
length of the sentence goes not to the substantive reasonableness of the sentence but
instead to its procedural reasonableness, an argument he did not preserve in district
court, see Gall, 552 U.S. at 51 (failing to explain a sentence is a procedural error);
United States v. Pena-Hermosillo, 522 F.3d 1108, 1116 (10th Cir. 2008), and has
waived because he does not argue for plain error on appeal; United States v.
DeRusse, 859 F.3d 1232, 1236 n.1 (10th Cir. 2017) (failure to raise procedural
reasonableness in district court or argue plain error on appeal waives the issue).
5
Mr. Ulibarri is unable to overcome the presumption that his sentence was
substantively reasonable and, therefore, the district court did not abuse its discretion
in imposing the 24-month sentence.
III. CONCLUSION
We affirm Mr. Ulibarri’s 24-month prison sentence for his violation of
supervised release.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
6
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562 F.3d 839 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael J. and Cynthia T. FLETCHER, Defendants-Appellants.
No. 08-2173.
United States Court of Appeals, Seventh Circuit.
Argued October 30, 2008.
Decided April 10, 2009.
*840 Francesca U. Tamami (argued), Department of Justice, Tax Div., Appellate Section, Washington, DC, for Plaintiff-Appellee.
George N. Vurdelja, Jr., Harrison & Held, LLP, Chicago, IL, Kenneth R. Boiarsky (argued), Kenneth R. Boiarsky, P.C., El Prado, NM, for Defendants-Appellants.
Before EASTERBROOK, Chief Judge, and RIPPLE and TINDER, Circuit Judges.
EASTERBROOK, Chief Judge.
Ernst & Young spun off its information-technology consulting group in 2000. Cap Gemini, S.A., a French corporation, bought this business and became Cap Gemini Ernst & Young, a multinational firm. Today it is known as Capgemini, and we use that name for the firm after the 2000 acquisition.
Consulting partners of Ernst & Young received shares in Capgemini in exchange for their partnership interests in Ernst & Young. This was not a like-kind exchange, so it was a taxable event for the partners. Because Ernst & Young and its partners expected shares in the new business to appreciate, they wanted all of the income to be recognized in 2000. That way any appreciation would be taxed as a capital gain. But Cap Gemini wanted to ensure the partners' loyalty to the new business; a consulting group depends on its staff, and if they left after taking the stock the business might be crippled. Transferring the shares in installments might address these subjects but also would make the transfers look like ordinary income and, if the shares appreciated in the meantime, the partners would receive fewer. Ernst & Young and Cap Gemini decided that a transfer of all of the shares in 2000, subject to what amounted to an escrow, would preserve the tax benefits while serving business objectives. So the shares received in the transaction were restricted for almost five years: if a partner quit, was fired for cause, or went into competition with the new business, some or all of the shares could be forfeited.
Ernst & Young, Cap Gemini, and the partners agreed by contract that they would report the transaction as a partnership-for-shares swap in 2000, fully taxable in that year. The agreed-on characterization allowed Capgemini to take depreciation deductions, see 26 U.S.C. § 197, starting in 2000, and ensured consistent tax treatment of all parties. The Commissioner of Internal Revenue might have challenged the parties' characterization, see 26 *841 U.S.C. § 269, but decided to accept it. Approximately 25% of the shares were sold in 2000 to generate cash that the partners used to pay their taxes; the remainder of the shares were held by Merrill Lynch subject to instructions from Capgemini until restrictions lapsed. Each ex-partner had a separate account for this purpose.
Cynthia Fletcher, one of Ernst & Young's consulting partners, voted for the transaction, signed the contract, moved to Capgemini, and received 16,500 shares in that business as payment for her partnership interest. The market value of these shares on the day the sale closed was about $2.5 million. Only 12,375 shares were deposited in the restricted account; the rest were sold for $653,756, which was distributed to Fletcher to cover taxes. In February 2001 Capgemini sent Fletcher a Form 1099-B reflecting that she had received $2,478,655 in stock, taxable at ordinary-income rates (save for some $91,000 attributable to § 751 property), from the sale of her partnership interest. She and her husband Michael (they filed a joint return) reported this income as received in 2000, just as her contract with Capgemini required. The couple's gross income for 2000 was reported as $3,733,180, on which they paid $972,121 in income tax.
Had the market price of stock in Capgemini risen, as the parties anticipated, that would have been a good outcome for Fletcher and the other ex-partners. But although Capgemini traded above 300 a share early in 2001, by 2003 it was below 50, where it has remained. (So far in 2009 it has traded for about 25.) This made the deal look bad in retrospect; the partners would have been better off had distribution of the stock been deferred. Fletcher quit in 2003. Although she left before the five years required by the contract, Capgemini waived its rights and directed Merrill Lynch to lift all restrictions on the stock in her account. Fletcher then filed an amended tax return for 2000. She now took the position that only the $653,756 distributed from the account was income in 2000. On her new view of matters, the rest of the income was not received until 2003, and the amount was much reduced in light of the lower market price of Capgemini shares in 2003. Apparently without checking how other taxpayers affected by the 2000 transaction had been treated, the Internal Revenue Service paid Fletcher a refund of about $387,000 plus interest. Contending that this refund had been mistaken, the United States filed this suit to get the money back. Similar litigation is pending in many other district courts some suits by the United States, some by ex-partners who want refunds.
The IRS's principal argument is that Fletcher and the other ex-partners are bound by their own characterization of the transaction as one in which all shares were received in 2000. Having adopted this characterization with the goal of minimizing taxes, they must adhere to it even though market movements have made it disadvantageous, the United States insists. It relies principally on CIR v. Danielson, 378 F.2d 771 (3d Cir.1967), which held just this, and on a Danielson-like remark in Comdisco, Inc. v. United States, 756 F.2d 569, 577 (7th Cir. 1985): "[A] taxpayer generally may not disavow the form of a deal." Some courts have allowed taxpayers to disregard their own forms when "strong proof" shows that the economic reality was something else. See, e.g., Leslie S. Ray Insurance Agency, Inc. v. United States, 463 F.2d 210, 212 (1st Cir.1972); Ullman v. CIR, 264 F.2d 305, 308 (2d Cir.1959). We used the "strong proof" formulation in Kreider v. CIR, 762 F.2d 580, 586-87 (7th Cir.1985), though without mentioning either Comdisco or Danielson. The district court concluded that it was unnecessary to *842 choose between these approaches (or their variants), because on any standard the parties set out to ensure that all income was recognized in 2000 and although the Commissioner has some power to recharacterize transactions so that they match economic substance, taxpayers can't look through the forms they chose themselves in order to improve their tax treatment with the benefit of hindsight. See Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). See also Joseph Bankman, The Economic Substance Doctrine, 74 S. Cal. L.Rev. 5 (2000); Saul Levmore, Recharacterizations and the Nature of Theory in Corporate Tax Law, 136 U. Pa. L.Rev. 1019 (1988); David A. Weisbach, Formalism in the Tax Law, 66 U. Chi. L.Rev. 860 (1999). So the district court entered summary judgment for the United States and ordered Fletcher to repay the refund. 2008 WL 162758, 2008 U.S. Dist. LEXIS 3555 (N.D.Ill. Jan. 15, 2008).
Fletcher argues that she didn't "really" agree to the structure that Ernst & Young and Cap Gemini (and most of her partners) wanted in 2000. If she had voted no and refused to sign, she maintains, she would have been excluded from the economic benefits and might have been fired. If this is so, then she had a difficult choice to make; it does not relieve her of the choice's consequences. Hard choices may be gut-wrenching, but they are choices nonetheless. Even naïve people baffled by the fine print in contracts are held to their terms; a sophisticated business consultant who agrees to a multi-million-dollar transaction is not entitled to demand the deal's benefits while avoiding its detriments. The argument that Fletcher can avoid the terms as a matter of contract law is frivolous. All that matters now are the tax consequences of the contracts she signed.
That a transaction's form determines taxation is (or at least should be) common ground among the parties. If private parties structure their transaction as a sale of assets, they can't later treat it for tax purposes as if it had been a merger. CIR v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 94 S.Ct. 2129, 40 L.Ed.2d 717 (1974). Cf. Landreth Timber Co. v. Landreth, 471 U.S. 681, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985) (same principle in securities law). Parties who structure their transaction as a sale and leaseback can't treat it as a mortgage loan for tax purposes though the Commissioner may be able to recharacterize it so that the tax treatment matches its economic substance. See Frank Lyon Co. v. United States, 435 U.S. 561, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978). If Cap Gemini transfers stock in 2000, cash-basis taxpayers such as Fletcher can't treat the income as received in 2001 or 2003, even though it would have been child's play to do the deal so that the income was received in those years.
The United States treats Fletcher as if she were trying to report an asset sale as a merger, or income received in 2000 as if it had been received in 2003. This is not, however, the sort of argument that Fletcher advances. She does not want to proceed as if the deal had different terms. She argues instead that the deal's actual terms have tax consequences different from those that her contracts with Ernst & Young and Cap Gemini required her to report in 2000. An example makes this clear. Suppose that Cap Gemini had deposited stock in the Merrill Lynch accounts in annual installments from 2000 through 2004, and that the parties had agreed to report that all income from the partnership-for-stock sale had been received in 2000 because the closing occurred that year. That agreement would not affect taxation. Private parties can contract about when income is received, to be sure, but the tax rules about realization and *843 recognition are extrinsic. People determine what transactions to engage in; federal law then specifies how much tax is due. Because Fletcher does not try to recharacterize the transaction, doctrines that limit or foreclose taxpayers' ability to take such a step are beside the point.
What, then, are the tax consequences of the parties' chosen form? Cap Gemini deposited all of the shares into individual accounts in 2000; from its perspective, the consideration had been paid in full. But the accounts were restricted. Ex-partners received 25% in cash that year, while the rest of the stock could be reached only as time passed. From the moment of the deposit in 2000, however, the ex-partners bore the economic risk: If the stock rose in the market, the ex-partners stood to reap the whole gain, and if the stock fell the ex-partners would bear the whole loss. This makes them the beneficial owners as of 2000, the IRS contends. For her part, Fletcher stresses the restrictions and maintains that until she could do with the stock as she pleased in other words sell it, not just watch nervously as it rose or fell it did not count as income.
The Commissioner has the better of this argument, as can be seen by considering the tax consequences of depositing cash into a blocked account. Suppose that an inventor sells his patent in 2000 for $2.5 million, all paid immediately but by contract the inventor agrees that $2 million will be put into a trust that will not be distributed until 2005. From the buyer's perspective, the full consideration is paid in 2000. And from the inventor's, the full consideration is received in 2000. The inventor agrees to defer consumption for five years, perhaps as a spendthrift precaution, but a taxpayer's willingness to defer consumption does not defer taxation for the tax falls on income rather than consumption. See 26 U.S.C. § 451(a) (any item of gross income is taxed in the year received). Income is "received" not only when paid in hand but also when the economic value is within the taxpayer's control; this is known as constructive receipt. 26 C.F.R. § 1.451-2. It is why a person who earns income can't avoid tax by telling his employer to send a paycheck to his college, or his son, rather than to his bank. Authority to direct the disposition of income is constructive receipt. In our example, the inventor could have chosen to receive the $2.5 million in cash. Agreement with the buyer that $2 million would be sent to a trustee and held for five years does not avoid the fact that the inventor had the power to direct what became of the money; that's what the contract was about. And much the same can be said for Fletcher: She agreed by contract that 75% of the consideration would be held in a restricted account for up to five years, but her willingness to accept restrictions and defer consumption does not eliminate constructive receipt in 2000.
Imagine that, instead of providing for payment in stock, the contract among Ernst & Young, Cap Gemini, and the partners had called for some cash in 2000 plus a zero-coupon bond, handed over to the ex-partner in 2000 and maturing in 2005. That bond is income in 2000, even to a cash-basis taxpayer, because it is property that can be sold in the market. Suppose that the partners also made side agreements with Capgemini not to sell their bonds for five years. (Equivalently, the ex-partners might have accepted unregistered securities, with a side agreement that Capgemini would register them and thus facilitate sale in 2005 if the ex-partner were still employed.) An agreement not to sell would not change the nature of the bonds as property, and thus income, received in 2000. See Racine v. CIR, 493 F.3d 777 (7th Cir.2007) (a transaction involving stock options, but that's not a material *844 difference). But deferral of the right to sell would reduce the value of the bonds, and hence the amount of income, because an illiquid asset is worth less than a liquid one. Whether the security is handed over to the ex-partner with a legend reflecting the limits on sale, or instead is handed to an intermediary such as Merrill Lynch with instructions to enforce contractual restrictions on the sale of an unlegended security, should not matter for tax purposes. The actual structure of the 2000 transaction is much like our hypothetical zero-coupon bond, though because the restrictions on sale were lifted year by year it is more like one bond maturing in one year, another bond maturing in two years, and so on through five years.
Three aspects of the contracts that Fletcher signed are important to this understanding. First, it matters that Fletcher and the other ex-partners stood to receive the entire market gain, and to bear all loss, from the moment the transaction closed in 2000. That feature of the deal shows that the stock was in her constructive possession in 2000. Second, it matters that Fletcher agreed to postpone her unrestricted access to the stock. This is why the deal looks like our inventor hypothetical. Third, it matters that Fletcher agreed to the amount of the discount. The contracts among Ernst & Young, Cap Gemini, and the partners specified that the restrictions would be treated as reducing the value of the stock to 95% of its market price on the closing date. (This reflects not only illiquidity but also the risk that Capgemini would use its power over the account in an unauthorized way, or that Merrill Lynch might fail in its duty as a custodian.) An ex-partner would be hard pressed in light of this agreement to argue that the discount should be 10% or 20%; Fletcher does not try. She insists instead that nothing counts as income in 2000 other than what was actually put in her hands in cash. And that position is incompatible with the examples we have given.
One more complication. The consulting partners agreed to give back some of the stock if they quit early and went into competition with Capgemini. If the parties' goal of encouraging the ex-partners to remain with Capgemini had been accomplished by giving the partners immediate access to the stock but requiring them to grant Capgemini a security interest in their homes, so that repayment would be assured, then all of the income would be treated as received in 2000. If instead Capgemini had doled out the stock in installments (say, 50% in 2000 and 50% if the ex-partner remained on its payroll in 2005), then only 50% would be taxable in 2000. The actual transaction was somewhere in between: 100% of the stock was transferred to Merrill Lynch in 2000 and the custodian was to hold it until conditions (such as not competing) had been satisfied. For reasons we have covered principally the fact that the ex-partners received the entire economic gain and loss from changes in the price of the securities from 2000 forward the transaction looks more like income in 2000 than like a stream of payments over time. Several courts have held that, where stock is transferred under a sales agreement and held in escrow to guarantee a party's performance under the agreement, the party "receives" the stock when it is placed in escrow rather than when it is released. See Chaplin v. CIR, 136 F.2d 298, 299-302 (9th Cir. 1943); Bonham v. CIR, 89 F.2d 725, 726-28 (8th Cir.1937); see also Whitney Corp. v. CIR, 105 F.2d 438, 441 (8th Cir.1939). That principle applies here.
The more likely it is that the conditions will be satisfied, and all restrictions lifted, the more sensible it is to treat all of the stock as constructively received when deposited in the account. To see this, suppose *845 that the parties had wanted to defer the recognition of income and had put $2.5 million in each partner's account, with the condition that the whole amount would be forfeited if the temperature in Barrow, Alaska, exceeded 80° F on January 1, 2005. Would the remote possibility of an Arctic heat wave enable the partners to defer paying taxes? Surely not. See Cemco Investors, LLC v. United States, 515 F.3d 749 (7th Cir.2008). If, on the other hand, the parties agreed that the ex-partners would receive $2.5 million only if the temperature in Barrow on January 1, 2005, exceeded 80° F, then none of the partners would constructively receive income in 2000; everything would depend on events in 2005.
The sort of contingencies that could lead to forfeitures were within the ex-partners' control. That implies taxability in 2000, for control is a form of constructive possession. And the agreement to discount the stock by only 5% tells us that the parties deemed forfeitures unlikely. Fletcher's acknowledgment that the risk of forfeiture was small shows that the conditions of constructive receipt in 2000 have been satisfied.
Thus although we agree with Fletcher that the ex-partners are entitled to contest the tax treatment called for by the 2000 contracts, we hold that the shares are taxable in 2000 at their value on the date of deposit to the accounts at Merrill Lynch. Income was constructively received in that year not because the contract said that everyone would report it so to the IRS, but because the parties were right to think that this transaction's actual provisions made the income attributable to 2000. That the price of Capgemini stock dropped in 2001 and later does not entitle the parties to defer the recognition of income. Fletcher must repay the refund (and amend her returns for later years to reflect receipt of the income in 2000).
AFFIRMED.
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949 F.2d 1158
Willifordv.Bastrop County*
NO. 91-8300
United States Court of Appeals,Fifth Circuit.
NOV 18, 1991
1
Appeal From: W.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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Order Michigan Supreme Court
Lansing, Michigan
January 30, 2012 Robert P. Young, Jr.,
Chief Justice
143840 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 143840
COA: 305416
Oakland CC: 2003-191467-FH
OMAR JAHMAL JOHNSON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 16, 2011
order 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.
January 30, 2012 _________________________________________
p0123 Clerk
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580 F.2d 1052
Jacksonville Shipyards, Inc.v.Perdue
No. 75-1659
United States Court of Appeals, Fifth Circuit
8/30/78
Ben.Rev.Bd., 575 F.2d 79
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791 F.Supp.2d 1099 (2011)
UNITED STATES of America, Plaintiff,
v.
John Leonard TSOSIE, Defendant.
No. CR 10-0773 JB.
United States District Court, D. New Mexico.
June 13, 2011.
*1100 Kenneth J. Gonzales, United States Attorney, Kyle T. Nayback, Mark T. Baker, Assistant United States Attorneys, Albuquerque, NM, for the Plaintiff.
Samuel L. Winder, Albuquerque, NM, for the Defendant.
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on: (i) the Plaintiff's Notice of Intent to Introduce Expert Witness Testimony Pursuant to Rules 702, 703 and 705, filed on October 6, 2010 (Doc. 37); and (ii) Defendant's Motion in Limine for Daubert[1] Ruling Regarding the Admissibility and Scope of Ms. Nancy's Drez's Expert Testimony, filed on April 20, 2011 (Doc. 86)("Motion"). The Court held an evidentiary hearing on April 28, 2011. The primary issue is: (i) whether, despite amendments to N.M.S.A. 1978, § 66-8-102C, retrograde extrapolation[2] remains viable under New Mexico law; and (iii) whether Plaintiff United States of America's retrograde extrapolation is admissible under rule 702 of the Federal Rule of Evidence. The Court agrees with the parties that New Mexico law controls the analysis of "influence of alcohol." The Court concludes, however, that New Mexico law allows use of the retrograde extrapolation. The Court further concludes that the United States has met its burden of showing its retrograde extrapolation is reliable. The Court therefore denies the Motion.
FACTUAL BACKGROUND
The charges in this case arise from a fatal crash that occurred sometime before 5:11 a.m. on October 17, 2009. Defendant John Leonard Tsosie was driving one of the vehicles involved in the crash. He told law enforcement and medical personnel who treated him at the hospital that he fell asleep at the wheel, and a test the hospital administered following a blood draw at 6:15 a.m. revealed that Tsosie had a blood alcohol concentration ("BAC") of .07 mg/mL at that time. Tsosie stated that he had three beers the night before and had stopped drinking at 11:00 p.m. Manuel Johnson was driving the other vehicle, and his wife, Loretta, was the passenger. The crash occurred approximately seven minutes from their home. Neither of the Johnsons survived.
PROCEDURAL BACKGROUND
On March 24, 2010, a Federal grand jury returned a two-count indictment *1101 charging Tsosie with two counts of involuntary manslaughter for killing M. and L. Johnson while operating a motor vehicle while under the influence of alcohol, contrary to N.M.S.A.1978, § 66-8-102, and driving recklessly, contrary to N.M.S.A. 1978, § 66-8-113, in violation of 18 U.S.C. §§ 1112 and 1153. See Indictment, filed March 24, 2010 (Doc. 1).
On October 6, 2010, the United States filed its Notice of Intent to Introduce Expert Witness, notifying Tsosie, in part, that it plans to call Nancy Drez as an expert witness at trial under rule 16 of the Federal Rules of Criminal Procedure, and under rules 702, 703, and 705 of the Federal Rules of Evidence, and that it intends to offer expert testimony in its case-in-chief. See Doc. 37. Dr. Drez is a forensic toxicologist. The United States intends to call Dr. Drez as an expert witness to testify about two opinions. First, she will offer opinion testimony regarding the impairment humans suffer as their BAC increases, which includes drowsiness and significant impairment of motor skills, reaction time, and other functions critical to safe driving. Tsosie does not challenge this testimony. Second, Dr. Drez will testify regarding the rates at which the human body absorbs and eliminates alcohol. Applying these principles to the evidence in this case through retrograde extrapolation, she will testify that Tsosie's BAC would have fallen within the range of .08 to .09 mg/mL at the time of the crash. Carrying the extrapolation back earlier into the night before the crash, she also will show that Tsosie's BAC would have been in the range of .12 to .17 mg/mL at the latest point he could have been expected to start strictly eliminating alcohol from his system. The United States contends Dr. Drez' testimony will show Tsosie failed to tell the truth when he stated that he drank only three beers the night before he took the wheel. According to the United States' Notice:
3. Nancy G. Drez is the Implied Consent Supervisor, Toxicology Bureau, Scientific Laboratory Division of the New Mexico Office of the Medical Investigator. Her CV is attached as Government's Exhibit 3. As an expert in blood and breath analysis, alcohol impairment, blood alcohol content (BAC)/breath alcohol content (BrAC) extrapolation and other issues related to chemical testing for alcohol, Drez will testify regarding the alcohol content of defendant's blood. A summary of her opinions is attached as Government's Exhibit 3. Drez will explain the nature of impairment at that level of alcohol concentration for an average individual and then for the defendant, given the characteristics known to her about the defendant.
4. Drez will also testify regarding BAC/BrAC extrapolation since the blood samples of the defendant were approximately two hours after the fatal crash with the Johnson vehicle. Based on her training and experience, Drez will opine regarding what range of alcohol levels were likely sustained by the defendant at the time of the collision. Given the facts that will be presented at trial, Drez will present expert testimony that the defendant's BAC/BrAC was between.07 and .13 g/100ml at the time of the collision, depending on the time of the blood draw.
5. The United States anticipates that Drez will testify regarding the effects of alcohol on the human ability to operate motor vehicles, including the impairment of motor skills, vision impairment and drowsiness. In this case, the defendant admitted on more than one occasion that after a night of drinking alcohol, he had fallen asleep at the wheel of his moving *1102 SUV. In addition, Drez can explain principles underlying alcohol absorption, metabolism, and elimination for forensic purposes. The United States anticipates that the expert opinion will include the conclusion that the defendant's BAC/BrAC level was in excess of the legal limit at the time of the fatal crash given the evidence in the case.
Notice at 2-3 (emphasis added). The United States made Dr. Drez available to Tsosie's counsel. See Notice at 1. The United States attached Dr. Drez' July 1, 2010 expert report to the Notice. See Dr. Drez Report, filed October 6, 2010 (Doc. 37-3). Because Dr. Drez did not know the exact time of the blood draw when she drafted her July 1, 2010 report, she used a range of possible times, between 6:00 a.m. and 8:00 a.m., that gave a range of possible BAC values at the time of the crash, between.07 and .13 mg/mL.
On April 14, 2011, Dr. Drez provided an updated report to United States Attorney Kyle T. Nayback. See Dr. Drez Report at 3 (United States Exs. D-2, D-2(a)). Six days later, on April 20, 2011, Mr. Nayback sent Dr. Drez' updated report by electronic mail to Mr. Winder. The updated report contains information that was not set forth in the July 1, 2010 report. Specifically, Dr. Drez updated her report to reflect that Tsosie's blood sample was taken at 6:15 a.m. and now provides a specific conclusion based upon a 6:15 a.m. blood draw. Having learned the time of the blood draw, Dr. Drez, based on the average rate at which individuals process alcohol, uses retrograde extrapolation to conclude that Tsosie had a BAC between .08 and .09 mg/mL at the time of the accident.
Tsosie moves the Court to order that Dr. Drez not be allowed to submit any expert testimony with regard to his BAC based on the use of retrograde extrapolation. Based upon the substance of the motion, Tsosie correctly presumed Mr. Nayback opposes this motion. Tsosie contends that retrograde extrapolation is not permitted under New Mexico law. Tsosie requests that the Court not allow the United States to elicit from Dr. Drez any expert testimony with regard to his BAC with the use of retrograde extrapolation.
At the April 28, 2011 Daubert hearing, Tsosie initially stated that he challenged the admissibility of retrograde extrapolation as a matter of law and not Dr. Drez' analysis. See Transcript of Hearing at 6:20-7:3 (taken April 28, 2011)("THE COURT: So your problem with Ms. Drez's testimony is not that she didn't do these tests right? ... Your argument is that as a matter of law it's just it's just legally inadmissible in New Mexico State courts?... MR. WINDER: That's my reading of the law.");[3]id. at 7:9-13 ("THE COURT:... [I]f I say, well, from a legal standpoint I think this analysis can come in, you don't have any other problem with Ms. Drez? You're just saying that as a matter of law her entire analysis shouldn't come in. MR. WINDER: That's correct."). The United States pointed Tsosie and the Court to the Supreme Court of New Mexico's opinion in State v. Day, 143 N.M. 359, 176 P.3d 1091 (2008), which not only permits retrograde extrapolation, but states that, in some circumstances, "the party seeking to prove a BAC at an earlier time must use scientific retrograde extrapolation evidence." 143 N.M. at 367, 176 P.3d at 1099. In light of this case, Tsosie agreed that retrograde extrapolation is relevant and may be admissible, abandoning his argument that retrograde extrapolation is not permitted under New Mexico law. See Tr. at 113:3-8 ("[The Court:] *1103 [T]he original basis for the motion ..., that [retrograde extrapolation is] irrelevant... [,] [y]ou don't raise that issue anymore? MR. WINDER: That's correct. THE COURT: You believe it's legally relevant? MR. WINDER: Yes."). Tsosie further stated that he does not contest that retrograde extrapolation is a valid methodology that is widely accepted in the scientific community. See Tr. at 113:9-13 ("THE COURT: Do you also agree that the retrograde extrapolation is ais a test that's widely accepted with in the scientific community and that there'sthat it's a valid methodology? MR. WINDER: Yes, Your Honor.").
Tsosie advanced a new argument at the hearing that Dr. Drez does not have sufficient information to reach her opinion regarding the range within which Tsosie's BAC fell at the time of the collision. Tsosie argued instead that Dr. Drez' retrograde extrapolation was flawed. See Tr. at 113:14-17 ("THE COURT: [S]o your objection now is the way that Ms. Drez applied that methodology in this case, correct? MR. WINDER: Yes, Your Honor."). Based on this new argument, he now asks the Court to exclude Dr. Drez' retrograde analysis testimony under rule 702. Tsosie also stated that he is "prepared to stipulate that his blood alcohol was .07 when that blood score was drawn at the hospital and at the time of the crash." Tr. at 122:18-20 (Winder).
Dr. Drez testified about the basis of her report and her retrograde extrapolation. After hearing Dr. Drez' credentials, and without objection from Tsosie, the Court recognized her as an expert forensic toxicologist permitted to offer opinion testimony related to the extrapolation of blood alcohol content and alcohol impairment. See Tr. at 20:9-16 (Court, Baker, Winder). When a person stops consuming alcohol, his or her body eventually reaches an absorption point, where the body completes absorption of the alcohol he or she has ingested, and enters the elimination phase, where the body is only eliminating alcohol. Dr. Drez testified that the general population typically reaches the elimination phase of processing alcohol within a half-an-hour to an hour after consuming the last drink, with a statistically significant group reaching the elimination phase two hours after stopping, and only rare outliers taking more than two hours to reach the elimination phase. See Tr. at 30:25-31:12 (Baker, Drez); P.M. Ganer & W.D. Bowthorpe, Evaluation of Breath Alcohol Profiles Following a Period of Social Drinking, 33 Can. Soc. Forensic Sci. J. 137, 142 (2000)(United States Ex. D-1(e))("On average, 69 minutes elapsed from the end of drinking until the start of the linear decline in BAC, with the longest taking 124 minutes."); A.W. Jones & L. Andersson, Influence of Age, Gender, and Blood-Alcohol Concentration on the Disappearance Rate of Alcohol from Blood in Drinking Drivers, 40 J. Forensic Sci. 922, 924 (1995)(United States Ex. D-1(a)).[4] Once a person completes absorption and enters the elimination phase, there is a linear decline of alcohol from the system at a typical rate of .01 to .02 mg/mL/h. See Tr. at 27:7-19 (Baker, Drez); Ganer & Bowthorpe, supra, at 143; Jones & Andersson, supra, at 922. Dr. Drez testified that heavy drinkers eliminate alcohol more quickly-as fast as .03 mg/mL/h according to one study. See Tr. at 27:20-28:13 (Baker, Drez)(citing Jones & Andersson, supra, at 922, 924). Ninety-five percent of more than 1000 drinking drivers in the Jones and Andersson study eliminated alcohol at a rate between .09 and .29 mg/mL/h, and *1104 only 2.2% eliminated alcohol at a rate slower that .01 mg/mL/h. See Jones & Andersson, supra, at 924. Jones and Andersson suggested that the outliers that eliminated alcohol at a rate slower that .01 mg/mL/h were not truly in the elimination phase, but still in a "slow absorption phase." Jones & Andersson, supra, at 924. See Tr. at 29:19-30:12 (Baker, Drez). The average person continues to eliminate alcohol at this rate until the person's BAC reaches .02 or .01 mg/mL, at which time the rate of decline tends to taper off until all the alcohol is eliminated. See Tr. at 43:14-15 (Baker, Drez).
In preparing her opinion on Tsosie's BAC at the time of the accident, Dr. Drez reviewed the medical records and police reports, including the dispatch report, in this case. See Tr. at 21:1-14 (Baker, Drez). Dr. Drez learned from the incident report that the accident was reported to the police at 5:11 a.m. See Tr. at 24:13-18 (Baker, Drez); Window Rock Incident Report Form, by Officer Jonathan Billie at 1 (United States Ex. D-8). Dr. Drez also spoke with Gayla Bias, the nurse who obtained Tsosie's blood sample the morning of the accident, and confirmed that the blood sample was taken at 6:15 a.m., as reflected in Tsosie's hospital record. See Tr. at 21:14-25 (Baker, Drez); id. at 10:13-14 ("Mr. Winder: ... [T]he blood draw was at 6:15 in the morning...."); Gayla Bias's Notes at 1 (United States Ex. D-5). Dr. Drez testified that tests on the blood sample revealed a BAC of 84 mg/dL, which, using accepted formula that account for distillation that occurs during processing, is equivalent to a BAC of .07 mg/mL. See Tr. at 22:25-24:2 (Baker, Drez); Lab Report regarding John Leonard Tsosie's BAC at 2 (United States Ex. D-7). She also testified that she learned from the police report that Tsosie told investigators that he stopped drinking at 11:00 p.m. the night before the accident. See Tr. at 22:9-24 (Baker, Drez); Statement by John Leonard Tsosie at 1 (United States Ex. D-4)("TSOSIE also indicated he consumed three drafts, last at 11 pm....").
Dr. Drez applied the retrograde extrapolation principles to the facts of this case. Tsosie stated that he stopped drinking at 11:00 p.m. the night before the crash. The crash occurred sometime before the crash was reported to the police at 5:11 a.m. Tsosie's blood was drawn at the hospital at 6:15 a.m., and the results from that blood test show Tsosie had a BAC of .07 mg/mL at 6:15 a.m. See 42:3-23 (Baker, Drez). Based on Tsosie's statement that he stopped drinking at 11:00 p.m., Dr. Drez assumed that, even if Tsosie were an outlier, he would have starting strictly eliminating by 1:15 a.m.two hours and fifteen minutes later. See Tr. at 43:24-45:8 (Baker, Drez). At the low end of the range of strict elimination rates of .01 mg/mL/h the circumstances most favorable to Tsosiehe would have eliminated at least .01 mg/mL in the more than one hour period between the accident and his blood draw, placing his BAC at .08 mg/mL or above at the time of the accident. See Tr. at 42:3-23 (Baker, Drez). At an elimination rate of .02 mg/mL/h, Tsosie would have eliminated more than .02 mg/mL, producing a BAC level of at least .09 mg/mL at the time of the accident. See Tr. at 42:3-23 (Baker, Drez). Dr. Drez extrapolated further back to conclude that Tsosie had a BAC of .12 to .17 mg/mL at 1:15 a.m., which is inconsistent with Tsosie's statement that he drank only three beers. See Tr. at 43:24-45:8 (Baker, Drez). Dr. Drez stated that, if Tsosie consumed three beers almost instantaneously, the highest BAC she would expect him to achieve is .06 to.08 mg/mL, and Tsosie would have completely eliminated the alcohol from his system by 6:15 a.m. See Tr. at 45:1-46:5 (Baker, Drez).
*1105 On cross examination, Dr. Drez stated that there are no curves in her graph, because her "graph only is looking at the elimination phase." Tr. at 60:2-3 (Winder, Drez). She also stated that, before she learned from interviewing nurse Bias and reviewing Bias' notes that Tsosie's blood sample was taken at 6:15 a.m., she initially reported that his BAC may have been as low as .07 mg/mL at the time of the accidentto allow his blood sample to be taken sometime between 6:00 a.m. and 8:00 a.m. See Tr. at 53:24-59:10 (Winder, Drez). Dr. Drez testified that she did not know when Tsosie last ate, so she used an absorption period of more than two hours to give Tsosie the benefit of the doubt. See Tr. at 61:19-64:6, 87:7-89:11 ("[Winder:] You don't know what he ate, do you? [Dr. Drez:] I accounted for that by giving the benefit of the doubt and making it two hours."). She further testified that she is unfamiliar with Tsosie's drinking patterns, beyond his statement that he drank three beers the night of the accident and stopped drinking at 11:00 p.m., which is why she used a range to allow for a faster elimination rate if Tsosie is a heavy drinker and a slower rate if he is a light drinker. See Tr. at 74:7-75:17, 87:7-88:8 (Baker, Drez)("I address that by giving a range, which encompasses the different drinking patterns of individuals."). Dr. Drez also stated that studies offer conflicting conclusions whether Native Americans eliminate alcohol faster, slower, or at the same rate as other races, but that using a range of elimination rates also accounts for this uncertainty, because none of the studies indicated that Native Americans eliminate alcohol slower than .01 mg/mL/h. See Tr. at 75:18-76:22 (Winder, Drez); id. at 111:1-13 (Baker, Drez). Dr. Drez testified that she is unfamiliar with Bias' credentials or the procedure that she used to collect Tsosie's blood sample. See Tr. at 71:2-11 (Winder, Drez).
On May 4, 2011, the United States filed its Response to Defendant's Motion in Limine for Daubert Ruling Regarding the Admissibility and Scope of Nancy Drez's Expert Testimony. See Doc 93. The United States opposes Tsosie's Motion, arguing that, because Dr. Drez's opinions are grounded on a conservative application of established scientific principles to the facts of this case, there is no basis for challenging her testimony under rule 702. The United States asserts that none of the additional pieces of data that Tsosie contends she needed to know would have any impact on the analysis she followed to reach her opinion that Tsosie's BAC was over the statutory limit for per-se-driving-while-intoxicated ("DWI") in New Mexico at the time of the crash and that Tsosie's new challenge to Dr. Drez's analysis therefore fails as a matter of law. The United States therefore asks that the Court deny the Tsosie's Motion.
LAW REGARDING THE COURT'S ROLE UNDER DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC.
Since the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide. The Court must not only decide whether the expert is qualified to testify, but whether the opinion testimony is the product of a reliable methodology. Daubert requires a court to scrutinize the proffered expert's reasoning to determine if that reasoning is sound.
1. Rule 702.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:
*1106 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. Rule 702 thus requires the trial court to "determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir.1994). The Federal Rule of Evidence uses a liberal definition of "expert." Fed.R.Evid. 702 advisory committee's note ("[W]ithin the scope of this rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called `skilled' witnesses, such as bankers or landowners testifying to land values."). An expert is "required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth." LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). The proponent of expert testimony has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1266 (D.N.M.2005) (Browning, J.) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness "may qualify as an expert by knowledge, skill, experience, training, or education and ... the expert... should not be required to satisfy an overly narrow test of his own qualifications." Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir.1974) (internal quotation marks omitted). The Court should, under the Federal Rules of Evidence, liberally admit expert testimony, see United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir.1995) (describing rule 702 as a "liberal standard"), and the trial court has broad discretion in deciding whether to admit or exclude expert testimony, see Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 647 (10th Cir.1991) (noting the trial court's decision will not be overturned "unless it is manifestly erroneous or an abuse of discretion").
2. The Daubert Standard.
In its role of gatekeeper, a court must assess the reasoning and methodology underlying an expert's opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786; Witherspoon v. Navajo Ref. Co., LP, No. CIV 03-1160 BB/LAM, 2005 WL 5988649 at *2 (D.N.M. July 18, 2005) (Black, J.)(citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir.2003)). The Supreme Court articulated a non-exclusive list of factors that weigh into a district court's first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness' method is generally accepted as reliable in the relevant medical and scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. *1107 2786. The court is also to consider whether the witness' conclusion represents an "unfounded extrapolation" from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The United States Court of Appeals for the Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.:
Rule 702 requires the district court to "ensure that any and all scientific testimony or evidence is not only relevant, but reliable." [Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir. 2004)] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786) This obligation involves a two-part inquiry. Id. "[A] district court must [first] determine if the expert's proffered testimony ... has `a reliable basis in the knowledge and experience of his [or her] discipline.'" Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786). In making this determination, the district court must decide "whether the reasoning or methodology underlying the testimony is scientifically valid...." Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786) Second, the district court must further inquire into whether proposed testimony is sufficiently "relevant to the task at hand." Daubert, 509 U.S. at 597, 113 S.Ct. 2786....
397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). "The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case." Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert's proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884.
In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on "principles and methodologies, and not on the conclusions generated." Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619 JB/DJS, 2006 WL 4060665 at *11 (D.N.M. Sept. 26, 2006) (Browning, J.)(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). "Despite this focus on methodology, `an expert's conclusions are not immune from scrutiny ... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665 at *11 (internal quotation marks and bracket omitted). The proponent of the expert's opinion testimony bears the burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. As the Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002):
Because the district court has discretion to consider a variety of factors in assessing reliability under Daubert, and because, in light of that discretion, there is not an extensive body of appellate case *1108 law defining the criteria for assessing scientific reliability, we are limited to determining whether the district court's application of the Daubert manifests a clear error of judgment or exceeds the bounds of permissible choice in the circumstances.... Thus, when coupled with this deferential standard of review, Daubert's effort to safeguard the reliability of science in the courtroom may produce a counter-intuitive effect: different courts relying on the essentially the same science may reach different results.
289 F.3d at 1206. As the United States Court of Appeals for the Ninth Circuit noted in Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir.1994):
Coming to a firm conclusion first and then doing research to support it is the antithesis of this method. Certainly, scientists may form initial tentative hypotheses. However, scientists whose conviction about the ultimate conclusion of their research is so firm that they are willing to aver under oath that it is correct prior to performing the necessary validating tests could properly be viewed by the district court as lacking the objectivity that is the hallmark of the scientific method.
29 F.3d at 502-503.
Once reliability is established, however, it is still within the district court's discretion to determine whether expert testimony will be helpful to the trier of fact. In making that determination, the court should consider, among other factors, the testimony's relevance, the jurors' common knowledge and experience, and whether the expert's testimony may usurp the jury's primary role as the evaluator of evidence.
Ram v. N.M. Dep't of Env't, No. CIV 05-1083 JB/WPL, 2006 WL 4079623 at *10 (D.N.M. Dec. 15, 2006) (citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.2006)).
A defendant is entitled, under some circumstances, to request a written summary of expert testimony the United States intends to use in its case-in-chief. Rule 16 of the Federal Rules of Criminal Procedure provides:
Expert witnesses.At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
Fed.R.Crim.P. 16(a)(1)(G). Rule 16 similarly provides that a defendant must produce a summary of expert testimony under some circumstances:
Expert witnesses.The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if
(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or
(ii) the defendant has given notice under Rule 12.2(b) of an intent to present *1109 expert testimony on the defendant's mental condition.
This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
Fed.R.Crim.P. 16(b)(1)(C).
An untested hypothesis does not provide a scientific basis to support an expert opinion. See Norris v. Baxter Healthcare Corp., 397 F.3d at 887 ("[A]t best, silicone-associated connective tissue disease is an untested hypothesis. At worst, the link has been tested and found to be untenable. Therefore, there is no scientific basis for any expert testimony as to its specific presence in Plaintiff."); In re Breast Implant Litig., 11 F.Supp.2d 1217, 1228 (D.Colo.1998) ("An untested hypothesis cannot be a scientifically reliable basis for an opinion on causation."). A court is not required "to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). See Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir.2002) (noting a lack of similarity between animal studies and human studies, including dose and route administration); Tyler v. Sterling Drug., Inc., 19 F.Supp.2d 1239, 1244 (N.D.Okla.1998) ("Test results on animals not necessarily reliable evidence of the same reaction in humans."). Courts have excluded experts' opinions when the experts depart from their own established standards. See Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th Cir.2004) ("The district court noted that [the expert]'s opinion did not meet the standards of fire investigation [the expert] himself professed he adhered to."); Magdaleno v. Burlington N. R.R. Co., 5 F.Supp.2d 899, 905 (D.Colo. 1998) ("In sum, [the expert]'s methodology is not consistent with the methodologies described by the authors and experts whom [the expert] identifies as key authorities in his field.").
NEW MEXICO'S LAW REGARDING "INFLUENCE OF ALCOHOL"
The New Mexico Legislature amended the state DWI statute in 2007 to provide that a defendant is guilty of per se DWI if he has a BAC of .08 mg/mL within three hours of driving a vehicle.
It is unlawful for a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.
NMSA 1978, § 66-8-102(C)(1). Before this amendment, the prosecution had to tie a defendant's BAC directly to the time of driving. The change in the law makes it easier for prosecutors to convict drunk drivers despite the delay between the time a defendant stops driving, and the time his or her BAC is tested. See State v. Day, 143 N.M. 359, 364-65, 176 P.3d 1091, 1096-97 (2008).
The Amendment's provision of a three-hour window within which a test showing a BAC at or above .08 mg/mL is sufficient to secure a per se DWI conviction makes it unnecessary for the prosecution to offer opinion testimony based on retrograde extrapolation in some cases. The Supreme Court of New Mexico, however, addressed retrograde extrapolation's continued role in cases like Tsosie's, explaining that the prosecution "can use scientific retrograde extrapolation evidence to prove that a BAC test taken within three hours but below 0.08 mg/mL shows that the defendant had an actual BAC of 0.08 or higher *1110 within three hours." State v. Day, 143 N.M. at 367, 176 P.3d at 1099.
ANALYSIS
Tsosie originally moved the Court to bar Dr. Drez' testimony about his BAC based on her use of retrograde extrapolation, because he contended that retrograde extrapolation is inadmissible as a matter of New Mexico law. At the hearing, he abandoned this argument in light of the Supreme Court of New Mexico's opinion in State v. Day. See 143 N.M. at 367, 176 P.3d at 1099 ("[T]he State can use scientific retrograde extrapolation evidence to prove that a BAC test taken after three hours and below 0.08 shows that the defendant had an actual BAC of 0.08 or higher within three hours of driving."). Tsosie now argues that Dr. Drez' opinion must be excluded, because sufficient facts do not support the opinion. In particular, Tsosie suggested that Dr. Drez cannot offer an opinion based on retrograde extrapolation, because she does not know what he ate while he was drinking the night before the crash, exactly how much he drank, or over what time period he drank it. Beyond that, Tsosie seemed concerned that Dr. Drez was not present when his blood was drawn and tested, and that she therefore cannot personally testify to the protocols the hospital followed in performing these tasks.
Tsosie's argument goes to the reliability requirements rule 702 imposes. See Fed. R.Evid. 702 (requiring that expert opinions be "supported by sufficient facts or data"). The issue before the Court is therefore whether the United States has established by a preponderance of the evidence that Dr. Drez' opinion regarding the range of Tsosie's BAC at the time of the crash takes into account the facts that would impact her conclusion. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d at 1266 (applying preponderance of the evidence standard to determine the admissibility of expert testimony). "Expert testimony is liberally admissible under the Federal Rules of Evidence." United States v. Hernandez-Mejia, No. CR 05-0469 JB, 2007 WL 2219411, at *7 (D.N.M. Apr. 30, 2007) (Browning, J.) (citing United States v. Gomez, 67 F.3d at 1526). A qualified expert "may testify ... in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. The Court concludes that Dr. Drez' retrograde extrapolation is admissible and will deny Tsosie's Motion. To the extent Tsosie challenges her retrograde extrapolation based on her lack of first-hand knowledge of procedure used to collect his blood sample, his challenge fails, because experts are not required to have first hand knowledge, because "expert witnesses do not need to have personal knowledge of the underlying facts; they may testify to opinions based on facts perceived by or made known to the expert at or before the hearing." Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 702[02], at 702-08 (2010).
I. DR. DREZ' ANALYSIS IS ADMISSIBLE UNDER RULE 702.
The heart of Tsosie's argument is that Dr. Drez was required to know certain information under State v. Day, namely, the time period over which Tsosie consumed alcohol, and when and what he last ate, and that without knowing this information, her retrograde extrapolation is inadmissible. In State v. Day, the Supreme Court of New Mexico stated that it could "foresee at least two situations in which scientific retrograde extrapolation evidence would be necessary for the State to meet its burden." 143 N.M. at 367, 176 P.3d at 1099. The first is where a blood *1111 test after the three-hour statutory window has passed. See State v. Day, 143 N.M. at 367, 176 P.3d at 1099. The Supreme Court of New Mexico stated:
In the second situation, the State can use scientific retrograde extrapolation evidence to prove that a BAC test taken within three hours but below 0.08 shows that the defendant had an actual BAC of 0.08 or higher within three hours. For example, a test taken two hours and forty-five minutes after driving might show a BAC of 0.07. If the defendant was in the elimination phase for some or all of the time before the test, then his or her BAC would have been higher before the test. Of course, aggravated DWI within the three-hour period will also be an issue.
In either of these situations, the party seeking to prove a BAC at an earlier time must use scientific retrograde extrapolation evidence. A BAC test is a quantitative measurement of a physical property. See [State v. Baldwin, 130 N.M. 705, 30 P.3d 394 (2001)]. To extrapolate from the BAC at the time of testing to the BAC at an earlier time, one must know the rate at which the BAC changes over time. See [State v. Christmas, 131 N.M. 591, 40 P.3d 1035 (2002) [2001]]. This rate is not constant, but varies over time, describing a curve rather than a straight line. See id. Determining the shape of the curve is a science. See Jim Frasier, Annotation, Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions, 119 A.L.R.5th 379 (2004). The exact shape of the curve depends on a number of factors, including inter alia the type of alcohol consumed, the time period over which the alcohol was consumed, the time of the last drink, and when and what the defendant last ate. See Christmas, 2002-NMCA-020, ¶ 26, 131 N.M. 591, 40 P.3d 1035. These factors can be quantified, although sometimes the supporting evidence may not be readily available. However, the burden of finding such evidence is appropriate for the State to bear when attempting to convict a person suspected of any crime, and should the State choose to pursue a per se DWI conviction, it must take the type of investigatory work required to prove a defendant's guilt beyond a reasonable doubt.
State v. Day, 143 N.M. at 367, 176 P.3d at 1099 (emphasis added).
Tsosie appears to argue that State v. Day controls whether Dr. Drez' retrograde extrapolation is admissible and that Dr. Drez' retrograde extrapolation fails under the burden State v. Day establishes for admissibility. Tsosie's argument fails on both prongs. First, while state law controls the applicable substantive law,[5] the Federal Rules of Evidence control the admissibility of evidence. Fed.R.Evid. 101 ("These rules govern proceedings in the courts of the United States ... to the extent and with the exceptions stated in rule 1101."); Fed.R.Evid. 1101 ("These rules apply generally ... to criminal cases and proceedings...."); United States v. Sain, 795 F.2d 888, 890-91 (10th *1112 Cir.1986) (holding that "federal courts are not required to follow specific provisions of state law which go beyond establishing the elements of an offense and the range of punishment"). Dr. Drez' retrograde extrapolation satisfies rule 702, because it accounts for the known and unknown facts of this case, giving Tsosie the benefit of the doubt when facts are unknown. Dr. Drez used assumptions that favored Tsosie to account for the unknown variables of when he last ate and his drinking patterns.
Dr. Drez' use of reasonable assumptions is permissible under rule 702. In Wallis v. Carco Carriage Corp., Inc., 124 F.3d 218 (10th Cir.1997) (Table), the Tenth Circuit rejected the defendant's argument that the district court should not have permitted the plaintiff's expert to present retrograde extrapolation, because the plaintiff's expert did not know certain information, which the defendant asserted made the analysis speculative. In Wallis v. Carco Carriage Corp., Inc., the parties cross appealed a jury verdict for the plaintiff, who alleged that the defendant car rental company negligently entrusted a vehicle to an intoxicated driver. The defendant argued in relevant part "that the district court abused its discretion in permitting the plaintiffs to offer retrograde extrapolation evidence to determine Nash's blood alcohol content at the time of the rental transaction." 124 F.3d 218, at *1. The defendant contended that the plaintiff's expert did not know how much alcohol Nash consumed between the time the rental company rented the car to him and an ensuing accident less than an hour later, rendering the expert's retrograde extrapolation speculative. The Tenth Circuit rejected the defendant's argument, because the expert accounted for the unknown variables in his analysis:
At trial, the plaintiffs' expert, Dr. Kurt Dubrowski, testified about the effects of alcohol and the rate of metabolization in individuals with a physical condition similar to that of Nash. Assuming that Nash's BAC was 0.36% at the time of the accident, Dr. Dubrowski estimated what Nash's BAC would have been during the rental transaction. He emphasized that his calculations varied based on Nash's alcohol consumption after the rental transaction, as well as Nash's drinking habits, stress levels, fatigue, and other factors.
....
Carco argues that the district court erred in admitting the testimony of Dr. Kurt Dubrowski regarding retrograde extrapolation evidence. Retrograde extrapolation is a method of estimating a person's blood alcohol level at a specified time by using the person's known blood alcohol content at a later time. Carco asserts that because the amount of alcohol that Nash consumed after the rental transaction was unknown, retrograde extrapolation is unreliable and speculative. We review the district court's admission of the retrograde extrapolation evidence in this case for an abuse of discretion. United States v. Wilson, 107 F.3d 774, 782 (10th Cir.1997).
At trial, Dr. Dubrowski prepared a chart that calculated what Nash's blood alcohol content would have been depending on how much he drank in the 35 to 45 minute interval between the rental transaction and the accident. For example, if Nash had not consumed any alcohol during that interval, he would have had a BAC of 0.39% at the time of the transaction. Similarly, if Nash had consumed twelve ounces of 90-proof whiskey, his BAC would have been 0.15% at the time of the rental transaction. In addition to emphasizing that his calculations varied based on Nash's alcohol consumption after the rental transaction, Dr. Dubrowski informed the jury that his findings depended on *1113 Nash's drinking habits, stress levels, fatigue, and other factors.
We hold that the district court did not abuse its discretion in admitting Dr. Dubrowski's retrograde extrapolation testimony. Dr. Dubrowski did not give a definitive estimate of Nash's BAC at the time of the rental transaction. Instead, the expert testified that his determination of Nash's BAC at the time of the rental transaction depended on Nash's consumption of alcohol during the 35 to 45 minute time interval between the transaction and the accident. Carco's objections to the speculative nature of such testimony go to the weight, and not the admissibility, of the evidence.
Carco's reliance on United States v. DuBois, 645 F.2d 642 (8th Cir.1981) is misplaced. In DuBois, the Eighth Circuit addressed the admissibility of retrograde extrapolation evidence in a drunk driving case. Id. at 643. The evidence indicated that the defendant drank one beer before getting into his car. Id. As he was driving, the defendant struck and killed a pedestrian. Id. Instead of remaining at the scene of the accident, the defendant proceeded to a nearby town and purchased a six-pack or twelve-pack of beer. Id. The defendants' children observed the defendant drink two to four cans of beer after the accident. Id. Another witness testified that the defendant drank one can of beer. Id. A breathalyser test administered less than three hours after the accident revealed that the defendant had a BAC of 0.22%. Id.
At trial, a forensic chemist attempted to estimate the defendant's BAC at the time of the accident. Id. The chemist assumed that the defendant had "an average" of three beers after the accident. Id. Based on a "burn off" rate of 0.15 percent per hour, the chemist estimated that the defendants BAC was 0.22% at the time of the accident. Id.
On appeal, the Eighth Circuit concluded that the evidence was insufficient to prove beyond a reasonable doubt that the defendant was driving while intoxicated. The court reasoned:
While there may be instances where an expert's estimate could account for intervening consumption and could thus serve as sufficient evidence of intoxication at the earlier time, this is not such a case. When there has been intervening consumption an accurate estimate requires knowledge of three variables: the blood alcohol level at the later time, the time elapsed since the accident, and the amount consumed in the interim. In this case, the expert did not know the amount consumed in the interim. Possibilities ranged anywhere from three to twelve beers. As a result, Ms. Pearson's conclusion that the defendant had a .22 or even a .1 per cent blood alcohol at the time of the accident is simply conjecture, and it is well established that "a jury is not justified in convicting a defendant on the basis of mere suspicion, speculation or conjecture."
Id. at 644-45 (citations omitted).
We agree with the DuBois court's observation that there may be inherent difficulties in making a retrograde extrapolation calculation when there is an intervening consumption of alcohol. Nevertheless, DuBois is distinguishable from the present case on several grounds. First, DuBois involved a sufficiency of the evidence issue, while the present case involves the admissibility of evidence. Second, DuBois was a criminal case, not a negligence action. Third, the expert in DuBois calculated the defendants BAC based on an "average" intervening consumption of three beers. In contrast, Dr. Dubrowski estimated Nash's BAC at the time of the rental transaction depending on Nash's alcohol *1114 consumption between the transaction and the accident. Finally, in DuBois, the evidence indicated that the defendant had consumed alcohol during a three-hour period between the accident and the defendant's arrest. In this case, the record indicates that the interval between the rental transaction and the accident was only thirty-five to forty-five minutes. Accordingly, we hold that the district court did not err in admitting retrograde extrapolation evidence to estimate Nash's level of intoxication at the time of the rental transaction.
124 F.3d 218, at *2, *7-8 (emphasis added). The upshot of the Tenth Circuit's opinion is that the Tenth Circuit does not provide a list of mandatory factors that experts must consider for their opinions to be admissible; rather, an expert's retrograde extrapolation analysis is admissible if it accounts for the available data and address unknown variables.
Like the expert in Wallis v. Carco Carriage Corp., Inc., Dr. Drez' retrograde extrapolation accounts for the unknown data. At the April 28, 2011 Daubert hearing, Dr. Drez testified about the basis of her report and her retrograde extrapolation. She testified, supported with studies and publications, that, when a person stops consuming alcohol, his or her body eventually reach an absorption pointwhere the body completes absorption of the alcohol he or she has ingestedand enters the elimination phase, where the body is strictly eliminating alcohol. Dr. Drez testified that the general population reaches the elimination phase of processing alcohol within a half-an-hour to an hour after consuming their last drink, with a statistically significant group reaching the elimination phase two hours after stopping, and only rare outliers taking more than two hours to reach the elimination phase. See Tr. at 30:25-31:12 (Baker, Drez); Ganer & Bowthorpe, supra, at 142 ("On average, 69 minutes elapsed from the end of drinking until the start of the linear decline in BAC, with the longest taking 124 minutes."); Jones & Andersson, supra, at 924. Once a person completes absorption and enters the elimination phase, there is a linear decline of alcohol from the system at a typical rate of .01 to .02 mg/mL/h. See Tr. at 27:7-19 (Baker, Drez); Ganer & Bowthorpe, supra, at 143; Jones & Andersson, supra, at 922. Dr. Drez testified that heavy drinkers eliminate alcohol more quickly, as fast as, according to one study,.03 mg/mL/h. See Tr. at 27:20-28:13 (Baker, Drez)(citing Jones & Andersson, supra, at 922, 924). Ninety-five percent of more than 1000 drinking drivers in the Jones and Andersson study eliminated alcohol at a rate between .09 and .29 mg/mL/h, and only 2.2% eliminated alcohol at a rate slower that .01 mg/mL/h. Jones & Andersson, supra, at 924. Jones and Andersson suggested that the outliers that eliminated alcohol at a rate slower that .01 mg/mL/h were not truly in the elimination phase, but still in a "slow absorption phase." Jones & Andersson, supra, at 924. See Tr. at 29:19-30:12 (Baker, Drez). The average person continues to eliminate alcohol at this rate until the person's BAC reaches.02 or .01 mg/mL, at which time the rate of decline tends to taper off until all the alcohol is eliminated. See Tr. at 43:14-15 (Baker, Drez).
Dr. Drez applied the retrograde extrapolation principles to the facts of this case. Tsosie stated that he stopped drinking at 11:00 p.m. the night before the crash. The crash occurred sometime before the crash was reported to the police at 5:11 a.m. Tsosie's blood was drawn at the hospital at 6:15 a.m., and the results from that blood test show Tsosie had a BAC of .07 mg/mL at 6:15 a.m. See 42:3-23 (Baker, Drez). Based on Tsosie's statement that he stopped drinking at 11:00 p.m., Dr. Drez assumed that, even if Tsosie were an outlier, he would have started strictly eliminating *1115 by 1:15 a.m.two hours and fifteen minutes after he stopped drinking. See Tr. at 43:24-45:8 (Baker, Drez). This allowance also accounts for the lack of data on Tsosie's last meal. See Tr. at 61:19-64:6, 87:7-89:11 ("[Winder:] You don't know what he ate, do you? [Dr. Drez:] I accounted for that by giving the benefit of the doubt and making it two hours."). Because she is unfamiliar with Tsosie's drinking patterns, she used a range to allow for a faster elimination rate if Tsosie is a heavy drinker and a slower rate if he is a light drinker. See Tr. at 74:7-75:17, 87:7-88:8 (Baker, Drez)("I address that by giving a range, which encompasses the different drinking patterns of individuals."). At the low end of the range of strict elimination rates of .01 mg/mL/hthe circumstances most favorable to Tsosiehe would have eliminated at least .01 mg/mL in the more than one hour period between the accident and his blood draw, placing his BAC at .08 mg/mL or above at the time of the accident. See 42:3-23 (Baker, Drez). At an elimination rate of .02 mg/ mL/h, Tsosie would have eliminated more than .02 mg/mL, producing a BAC level of at least .09 mg/mL at the time of the accident. See 42:3-23 (Baker, Drez). Dr. Drez extrapolated further back to conclude that Tsosie had a BAC of .12 to .17 mg/mL at 1:15 a.m., which is inconsistent with Tsosie's statement that he drank only three beers. See Tr. at 43:24-45:8 (Baker, Drez). Thus, Dr. Drez' retrograde extrapolation accounts for the unknown variables of Tsosie's last meal and drinking habits.
Dr. Drez thus relies on two fundamental assumptions: that Tsosie was in the elimination phase and that Tsosie eliminates alcohol at a rate that is within the range that a typical person eliminates alcohol. First, Dr. Drez assumed that Tsosie was in the elimination phase and not in the absorption phase when the accident occurred. Dr. Drez based this assumption on Tsosie's statement that he stopped drinking at 11:00 p.m. According to studies Dr. Drez cited, most people enter the elimination phase within one hour of finishing their last drink. Dr. Drez allowed that Tsosie could be an outlier who did not reach absorption until two hours and fifteen minutes after he finished drinking, but that her analysis with regard to his BAC at the time of the collision would not change even if he did not reach absorption until six hours after he stopped drinking. Because of this allowance, how much and how quickly Tsosie consumed alcoholwhich could affect when he reached absorption would not reasonably alter Dr. Drez' conclusions.
Dr. Drez' second assumption was that Tsosie is not an outlier in his elimination rate. The general population eliminates alcohol at a rate between .01 and .03 mg/mL/h, with the mean clustered more between.015 and .02 mg/mL/h. See Jones & Andersson, supra, at 922; Jones & Andersson, supra, at 924. Like the expert in Wallis v. Carco Carriage Corp., Inc., Dr. Drez prepared a chart that reflected that range of Tsosie's possible BAC based on elimination rates between .01 and .02 mg/mL/h. Dr. Drez stated that studies offer conflicting conclusions whether Native Americans eliminate alcohol faster, slower, or at the same rate as other races, but that using a range of elimination rates also accounts for this uncertainty, because none of the studies indicated that Native Americans eliminate alcohol slower than .01 mg/mL/h. See Tr. at 75:18-76:22 (Winder, Drez); id. at 111:1-13 (Baker, Drez). The Court concludes that Dr. Drez' assumptions are reasonable, that her retrograde extrapolation "is based upon sufficient facts or data" and "is the product of reliable principles and methods," and that Dr. Drez "has applied the principles and methods reliably to the facts of the case." Fed. R.Evid. 702. Her retrograde extrapolation is scientifically valid and relevant to *1116 the facts of the case. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 594-95, 113 S.Ct. 2786; Dodge v. Cotter Corp., 328 F.3d at 1221. Like the defendant's argument in Wallis v. Carco Carriage Corp., Inc., Tsosie's "objections to the speculative nature of such testimony go to the weight, and not the admissibility, of the evidence." 124 F.3d 218, at *8. The Court will therefore deny Tsosie's Motion.
II. DR. DREZ' RETROGRADE EXTRAPOLATION IS CONSISTENT WITH THE REQUIREMENTS IN THE SUPREME COURT OF NEW MEXICO'S CASE LAW.
In additional to being admissible under rule 702, Dr. Drez' retrograde extrapolation is consistent with the Supreme Court of New Mexico's case law. In State v. Day, the Supreme Court of New Mexico stated:
The exact shape of the [BAC elimination] curve depends on a number of factors, including inter alia the type of alcohol consumed, the time period over which the alcohol was consumed, the time of the last drink, and when and what the defendant last ate. See Christmas, 2002-NMCA-020, ¶ 26, 131 N.M. 591, 40 P.3d 1035. These factors can be quantified, although sometimes the supporting evidence may not be readily available. However, the burden of finding such evidence is appropriate for the State to bear when attempting to convict a person suspected of any crime, and should the State choose to pursue a per se DWI conviction, it must take the type of investigatory work required to prove a defendant's guilt beyond a reasonable doubt.
State v. Day, 143 N.M. at 367, 176 P.3d at 1099. If the Court were to accept Tsosie's argument that State v. Day establishes a requirement that retrograde extrapolation quantify all the factors the Supreme Court of New Mexico set forth in a non-exhaustive list, Dr. Drez' analysis meets that burden. She uses ranges and conservative assumptions to allow for extremes that favor Tsosie to account for unknown facts, which in effect quantifies the factors most favorably towards Tsosie. She did not know when or what he last ate, so she used a absorption point of two hours and fifteen minutes, although the average person reaches an absorption point in thirty minutes to an hour. Because of the absorption point Dr. Drez' retrograde extrapolation uses, her analysis would not change regardless of what and when Tsosie last atewhether he ate nothing or a steak dinner. See Tr. at 103:14-104:7. Similarly, Dr. Drez used a range of elimination rates to account for Tsosie uncertain drinking patterns.
The Supreme Court of New Mexico has approved experts using similar assumptions. In State v. Hughey, 142 N.M. 83, 163 P.3d 470 (2007), the Supreme Court of New Mexico reversed the judgment of the Court of Appeals of New Mexico excluding the prosecution's expert witness' retrograde extrapolation. In discussing the prosecution expert's testimony, the Supreme Court of New Mexico noted that he relied on two assumptions that could not be proved based on available evidence: (i) that the defendant had been drinking over a period of time; and (ii) that the defendant drank no alcohol after the accident but before her BAC was tested. The expert stated that he could not testify to the defendant's individual rate of absorption, but he indicated that, "in most cases, alcohol is absorbed anywhere between fifteen minutes to an hour after it has been drunk." 142 N.M. at 85, 163 P.3d at 472. He further testified that "the generally accepted time to reach peak alcohol level is fifteen minutes to an hour after the alcohol is ingested." 142 N.M. at 85, 163 P.3d at 472. The Supreme Court of New Mexico' opinion in State v. Hughey establishes that *1117 an expert's reliance on reasonable assumptions does not render the expert's testimony inadmissible:
In response, the State presented testimony by Curtis Caylor, who was qualified as an expert in the field of toxicology. Caylor testified that in order to determine Defendant's BAC at 11:30 p.m. through the process of retrograde extrapolation, several assumptions would have to be made. The two major assumptions were that Defendant had been drinking over a period of time, and that she had no alcohol to drink after the accident. While Caylor could not testify as to Defendant's rate of alcohol absorption, he stated that in most cases, alcohol is absorbed anywhere between fifteen minutes to an hour after it has been drunk. Caylor advanced that the generally accepted time to reach peak alcohol level is fifteen minutes to an hour after the alcohol is ingested. Additionally, Caylor testified that if Defendant suffered from shock due to the accident, the effect if any, would be to slow down her rate of alcohol absorption slightly, not stop it. Caylor also disagreed with Dr. Reyes as to the effect of food in the stomach; he testified that the presence of food in the stomach would slow, not stop, the absorption of alcohol.
....
The State's expert testified that the generally accepted time to reach peak alcohol level is fifteen minutes to an hour after the alcohol is absorbed. Working from the assumption that Defendant stopped drinking at 8:30 p.m., as she told police, a reasonable inference arguably might be drawn that Defendant had reached her peak alcohol level by the time the accident occurred and that her BAC at the time of the accident was higher than .10. While we do not presume to make an assessment as to whether this constitutes sufficient evidence to support a conviction for per se DUI, we believe that the testimony of the State's expert raises a question of fact that should be resolved by a jury rather than by the trial court prior to trial. See State v. Mares, 92 N.M. 687, 689, 594 P.2d 347, 349 (Court.App.1979) (stating "that maintenance of the jury as the fact-finding body in felony cases is of great importance and is to be jealously guarded"). Additionally, the conflicting testimony of the State's and Defendant's experts regarding the effect of shock on the rate of alcohol absorption constitutes a factual dispute that cannot be resolved prior to trial. See State v. Duran, 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d 836 (stating that resolution of factual conflicts "`is particularly a matter within the province of the trier of fact'") (quoting State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973 (1994)). The issues raised in Defendant's Motion in Limine and by the testimony of the two conflicting experts are issues that should not have been resolved prior to trial by the trial judge. Instead, the State should have had the opportunity to present its case to a jury.
142 N.M. at 85, 87-88, 163 P.3d at 472, 474-75 (emphasis added). The Supreme Court of New Mexico's opinion in State v. Hughey demonstrates that the New Mexico law permits experts to make reasonable assumptions in performing retrograde extrapolation and that such assumptions do not render retrograde extrapolation inadmissible.
At the hearing, Tsosie also argued that Dr. Drez' chart was flawed, because it assumes that elimination is a linear function, and the Supreme Court of New Mexico stated in State v. Day that "the rate at which the BAC changes over time ... is not constant, but varies over time, describing a curve rather than a straight line." 143 N.M. at 367, 176 P.3d at 1099 (citations *1118 omitted). A linear curve would mean that the rate of elimination is constant. Dr. Drez explained that her "graph only is looking at the elimination phase," during which the change in BAC approximates a linear function. Tr. at 60:2-3 (Winder, Drez); Ganer & Bowthorpe, supra, at 142 ("On average, 69 minutes elapsed from the end of drinking until the start of the linear decline in BAC, with the longest taking 124 minutes." (emphasis added)). While the rate of elimination is fairly constant from the absorption pointroughly two or less hours after a person stops consuming alcoholto the point when a person's BAC reaches .02 or .01 mg/mL, the variability in the elimination rate before the absorption point and after a person's BAC reaches .02 or .01 mg/mL describes a curve. The Court thus finds no conflict between the Supreme Court of New Mexico's caselaw and Dr. Drez' retrograde extrapolation.
IT IS ORDERED that the Defendant's Motion in Limine for Daubert Ruling Regarding the Admissibility and Scope of Ms. Nancy's [sic]/Drez's Expert Testimony is granted in part and denied in part. The Court grants Defendant John Leonard Tsosie's Motion in Limine for a Daubert ruling. The Court denies Tsosie's request that the Court not allow Plaintiff United States of America to present expert testimony with regard to his BAC with the use of retrograde extrapolation.
NOTES
[1] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding that the Federal Rules of Evidence assign to trial judge the task of ensuring that an expert's testimony both rests on reliable foundation and is relevant to the issue before the court).
[2] "Retrograde extrapolation is a method of estimating a person's blood alcohol level at a specified time by using the person's known blood alcohol content at a later time." Wallis v. Carco Carriage Corp., Inc., 124 F.3d 218, at *7 (10th Cir. 1997) (Table).
[3] The Court's citations to the transcript are to the Court Reporter's original, unedited version. A final version of the transcript may have slightly different line or page numbers.
[4] At the hearing, the United States introduced, but did not file, United States Exs. D-1 through D-8.
[5] Tsosie is charged with involuntary manslaughter under 18 U.S.C. § 1112, which "is the unlawful killing of a human being without malice .... [i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death." 18 U.S.C. § 1112(a). The unlawful act or acts the United States alleges Tsosie committed is operating a motor vehicle while under the influence of alcohol, contrary to N.M.S.A. 1978, § 66-8-102, and driving recklessly, contrary to N.M.S.A. 1978, § 66-8-113. New Mexico law controls with respect to whether Tsosie violated N.M.S.A. 1978, §§ 66-8-102 and 66-8-113.
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397 Pa. 281 (1959)
Swavely
v.
Vandegrift (et al., Appellants).
Supreme Court of Pennsylvania.
Argued May 5, 1959.
October 21, 1959.
Before JONES, C.J., BELL, MUSMANNO, JONES, COHEN and McBRIDE, JJ.
Bernard J. Smolens, with him John J. McDevitt, 3rd, for appellants.
William H. Lowery, with him Barnes, Dechert, Price, Myers & Rhoads, for appellee.
OPINION BY MR. JUSTICE BELL, October 21, 1959:
The opinion of Judge SATTERTHWAITE clearly sets forth at great length the facts and ably analyzes the law.
The Order of the lower court which sustained the preliminary objections of Calcinator Corporation and set aside service of process and dismissed plaintiffs' amended complaint against said corporation is affirmed at appellants' costs.
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620 So.2d 1172 (1992)
Jeanne Harwell SMITH and Jesse L. Smith
v.
STATE of Louisiana Through the DEPARTMENT OF PUBLIC SAFETY and State of Louisiana through the Department of Transportation and Development.
No. CA 91 0618.
Court of Appeal of Louisiana, First Circuit.
September 28, 1992.
Rehearing Denied February 22, 1993.
*1173 Paul Due, Baton Rouge, for plaintiffs.
Jonathan R. Schmidt, Hammond, for State Dept. of Public Safety.
Randall Cashio, Baton Rouge, for State/ DOTD.
Wayne Ray Chutz, Port Vincent, for Livingston Police Jury.
Christopher Matchett, Baton Rouge, for intervenor State.
*1174 Before WATKINS, SHORTESS, LANIER, CRAIN and GONZALES, JJ.
LANIER, Judge.
This action is a suit for damages in tort arising from an accident that occurred when a motorist drove her automobile on a flooded private road and struck a pothole. Suit was filed by Jeanne H. Smith and her husband, Jesse L. Smith, (the Smiths) against the State of Louisiana through the Department of Public Safety (DPS) and the Department of Transportation and Development (DOTD); DPS and DOTD answered and filed third party demands against the Livingston Parish Police Jury (Police Jury). The trial court dismissed DOTD and the Police Jury and rendered judgment in favor of Mrs. Smith against DPS for $215,949.60. DPS took this suspensive appeal.
FACTS
In 1975, the Buddy Ellis Road (Road) was a rural, gravel and dirt road located in Sections 10, 11 and 12, Township 7 South, Range 3 East, south of the Town of Walker in Livingston Parish, Louisiana. The Road runs in an east-west direction, and, in 1975, it connected Louisiana Highway 447, also referred to as the Walker South Road, (La. 447) on the east with Louisiana Highway 1026 on the west. The road traversed property privately owned by the Crown Zellerbach Corporation (Crown) and the Juban family.[1] Crown used the Road to conduct its timber harvesting (logging) operations in the area. This general area was relatively isolated in 1975. Only one family (Bobby Gill) lived in the area and it was located south of the Road about 0.8 of a mile from the eastern (La. 447) end.
In about 1975, DPS became interested in developing a place for demolition training (explosive range), a firearm range and a training facility. An isolated area was needed for the firearm and explosives training. Captain William T. Poe of the Louisiana State Police helped to develop this facility. Approximately 140 acres of land was acquired by DPS in three transactions. This land was located in Sections 2, 3, 10 and 11 of Township 7 South, Range 3 East. Through Poe's efforts, DPS obtained predial servitudes of passage to its properties over the Road from Crown and the Juban family.[2] The conventional servitude agreement between Crown and DPS was signed by Crown on October 17, 1975, and by DPS on October 21, 1975. This agreement provided, in pertinent part, as follows:
It is understood and agreed that the right of way herein granted shall be solely for the purpose of constructing and maintaining a private road for the use of the GRANTEE herein, his agents, employees, heirs and assigns, and that GRANTEE shall not do or allow to be done any acts or act which shall cause said right of way to become a public road without the prior written consent of GRANTOR.
GRANTEE hereby agrees to construct or improve and maintain this road at its own expense and further agrees that GRANTOR shall be allowed the free use of said road at any and all times as well as grant the right of use thereof to other parties.
. . . . .
It is distinctly understood that this instrument shall not be construed as a conveyance of title to any part of the land covered hereby, nor of the minerals therein or thereunder, and grants only the right of way and servitude as herein provided.
This servitude covered only 7,564.61 feet of the Road owned by Crown located in Sections 11 and 12 of Township 7 South, Range 3 East; it did not cover that portion of the Road that continued to the west past the entrance to the DPS property.
Thereafter, DPS proceeded to develop its facility. Crown periodically conducted logging operations in the area and used the *1175 Road. In 1980, a stock patrol facility was completed on the DPS property. Trooper Leroy Robison was assigned to the stock patrol facility from its inception until it was closed in April of 1988. Trooper Robison testified that DPS did not have any equipment to work the Road so he got the Police Jury and Crown to occasionally work the Road with their equipment. Howard P. Elliot, Jr., DPS's general counsel, testified that DPS tried to obtain budgeting (funding) for the maintenance of the Road but was unsuccessful. DPS asked DOTD for assistance, but DOTD declined to do so because the Road was a private road and not a part of the State highway system. DPS asked the Division of Administration (DOA) for assistance, but DOA declined to do so on the ground that one State budgetary unit could not give its funds to another.
In 1983, Mr. Daniel Haggard acquired property near the intersection of the Road and the Bobby Gill Road.[3] Mr. Haggard testified he was the first resident in the area after Bobby Gill. Mr. Haggard stated that his property was located on the north side of the Road opposite the Bobby Gill Road and was approximately 0.8 mile west of the intersection of the Road and La. 447. He stated that "some time in 1984" a bridge on the west end of the Road (over West Colyell Creek) became impassible, and, thereafter, the only ingress and egress to and from his property was over the Road to La. 447.[4] Mr. Haggard also testified that the condition of the Road started getting bad in 1984.
On October 19, 1984, Crown entered into an act of exchange with The Natchez Corporation (Natchez). In this conveyance, Crown transferred title to 808.26 acres of land in Livingston Parish, Louisiana, to Natchez in exchange for the conveyance by Natchez to Crown of 1,883.00 acres of land in East Baton Rouge Parish, Louisiana, and 59.00 acres of land in Copiah County, Mississippi. Six of the tracts of land conveyed by Crown to Natchez were in Sections 10, 11, 12, 15 and 22 of Township 7 South, Range 3 East. The tract (No. 19) in Section 11 contained 31.34 acres and was bounded on the west by the DPS property and bounded on the south, in part, by the Road. The property description does not give the ownership of the properties bounding this tract on the north and east, or on the south where the property was not bounded by the Road. This contract did not grant a servitude of passage to Natchez over the Road.
On October 23, 1984, Natchez sold the 31.34 acre tract (Tract No. 19) in Section 11 to James H. Brackin, Waunell Carter Brackin, Marshall W. Brackin and Jimmie Kathleen Wall Brackin (the Brackins). The same property description used in the Crown-Natchez sale was used in this sale. This contract did not grant a servitude of passage to the Brackins over the Road.
The Brackins developed this property into a subdivision called Ashley Heights, Third Filing. They apparently marketed the subdivision lots through Holden Real Estate. On December 11, 1985, the Brackins sold lots 6 and 7 of Ashley Heights, Third Filing to Jesse L. Smith, Sr. and Jeanne Harwell Smith.[5] This contract did not grant a servitude of passage to the Smiths over the Road. The Smith's lots fronted on Jennifer Lane. Jennifer Lane intersected the north side of the Road approximately 1 mile west of the Road-La. 447 intersection. The Jennifer Lane-Road intersection was approximately 0.2 mile west of the Road-Bobby Gill road intersection. The Smiths moved on the property to live in September of 1986. Thereafter, Mrs. Smith travelled on the Road an average of 2 or 3 times a week.
Daniel Haggard testified that in 1986, about 40 families lived in the area and used the Road for access. During 1986, the *1176 condition of the Road deteriorated. Rudolph Ratcliff, the Police Jury Parish Superintendent, testified that the Police Jury records for 1986 showed that the Police Jury graded the Road on January 13, 1986, and did drainage work on the Road on February 11, 1986, but no other work was done on the Road that year.
Edward J. Murphy, an attorney specializing in real estate, title examinations and abstracts, was qualified as an expert witness in abstracting and title examination and testified that in 1986, Cavenham Forest Industries, Inc. (Cavenham) acquired the ownership of the Road (and other properties) from Crown.[6] Mrs. Smith testified that during October of 1986, logging operations were commenced on property along the Road and these operations continued into December of 1986. Logging trucks used the Road during this time. During this time, DPS and the Police Jury received numerous complaints about the general condition of the Road from those who used it. The evidence shows, and the trial court correctly found, that DPS had knowledge of the general condition of the Road in December of 1986.
Prior to December 20, 1986, there were heavy rains in the area and portions of the Road were flooded. On Saturday, December 20, 1986, Mrs. Smith decided to drive her 1975 Chevrolet van to a grocery store on La. 447 to get some food for Christmas. She went south on Jennifer Lane, turned left onto the Road and headed east toward La. 447. After proceeding an undetermined distance down the road, Mrs. Smith attempted to go around a pothole, got too close to the roadside ditch and slid in the ditch. Daniel Haggard and another man came with a tractor and pulled her van out of the ditch.
Mrs. Smith decided to continue on her errand. In the vicinity of a red barn on the north side of the Road, she encountered a flooded portion of the Road that was approximately "¾ of a block long". This flooded area was estimated as either ½ or 2/3 of a mile from La. 447.[7] Mrs. Smith slowed down and started to cross the flooded roadway. She was unable to see beneath the surface of the water. The left front tire of her van went down into a pothole. This snapped her neck backward and forward and pain went through her neck. In her deposition given on July 27, 1990, Mrs. Smith stated she continued through the flooded area, travelled to La. 447, turned left on La. 447 and went to the grocery store. At trial in September of 1990, Mrs. Smith testified that "I don't remember where I went after I hit the pothole." After finishing her shopping, she returned home over the Road. The Road was still flooded so she drove closer to the roadside ditch to avoid hitting the same pothole again. When she got home she told her husband about the incident.
In her July 1990 deposition, Mrs. Smith gave the following pertinent testimony about her speed at the time of the accident:
Q Now, when you realized that you wereor right before you entered the flooded section of roadway, did you reduce your speed?
A Yes, sir. You would drown out if you didn't reduce your speed and you got there down [sic]. But cars were coming up and down that road. I had no reason to think that I could not get down that road. I had no reason to know I was in danger because people were coming, people were on going, people were going to work.
Q And to what did you slow your speed as you began entering and as you entered the flooded section of roadway?
A I would say that I probably lowered it maybe to 15 miles an hour, and I'm going to give you an approximate approximate, because when you go into an area where there's water on the road, if you would go fast, you would drown *1177 if you were in a car, you would drown the car out.
Q So you feel comfortable in saying
A I'm saying approximately.
Q But you definitely reduced your speed from 20?
A Yes, sir, because that was the worst flooded area of the road.
Q But youthe question would be but you definitely recall reducing your speed from 20 and you approximate that reduction of about 5 miles per hour?
A Yes.
. . . . .
And at the time you hit the pothole, are you certain that you could not have been traveling more than 15 miles an hour?
A I know that I reduced speed in order not to drown out. I reduced my speed. I hadI don't know if I'd even been doing 20 on that one section.
At the trial, Mrs. Smith gave the following pertinent testimony about her speed:
Q. Okay. About how fast were you going?
A. I was going slow to keep from drowning my van out because alot [sic] of people have drowned out and my van, if you are careful, it wouldn't drowned [sic] out, but like a small car couldn't make it through there.
Q. What wheel of your vehicle went into the pothole?
A. The front, left wheel, hit the pothole.
Q. What happened to you, physically?
A. It jarred me terribly. It was like that I hit a brick wall, I hit something down in that pothole, I don't know what, and it was like that [sic] I hit a solid brick wall and it jarred me back out of that pothole. At this time, I was trying to watch the road and get through there without drowning out, too.
Mrs. Smith testified she never actually saw the pothole she struck and the evidence does not show the pothole's dimensions. At her deposition, Mrs. Smith gave the following pertinent testimony about the nature of the pothole:
THE WITNESS: Okay. Before I forget it, what I'd like to tell you about that pothole is there's constant shifting sand in that area. The loggers never stopped logging after my accident. Potholes open, potholes close.
BY MR. CASHIO:
Q Okay.
A The sand, there's a lot of sand in that area, in this incline where the creek floods out. One day a pothole will be somewhere, the next day, it won't, if you can understand what I'm talking about.
. . . . .
Q Do you haveexcuse me, thedo youdid you yourself make an inspection of this pothole that you say you hit at any time, any time after you initially struck it?
A I'm going tothe next day, after my accident, one of the men who lives along the road who has ditching equipment came into the area and dug the ditch out and shoved the dirt back up on the side of the road. When he did this, the pothole was filled up because of the shifting sand in that area.
Q Who was the man?
A Mr. Daniel Haggard.
Q Where is
A He owns Ashley Heights Trailer Park.
Q He's the owner. Does he live at the Ashley Heights Trailer Park?
A Yes, sir.
Q Now, did you request Mr. Haggard to, what, clean the ditches?
A No, sir. He went down there and did that on his own, as far as I know. I do not know the details of it. I only know that I believe my husband saw him there the next day.
Q But did you see him there the next day?
A No, sir, because I didn't go down that road the next day.
Q Have you ever visualized the pothole that you say you hit? Have you ever actually seen it?
*1178 A No, sir, but I felt it.
. . . . .
Q Let's go back on.
Is it fair to say, ma'am, at least as far as you're concerned, as least as an individual, you've never seen the pothole that you said you hit on December 20, 1986?
A That is correct.
Q Now, do you know of anyone who may have seen this pothole afterat any time after you hit it?
A They would have to have had X-ray vision because there was no ditch work done along that road. There was no way for flood water to get out. The loggers were still working on the road. At this time, we hadn't lived there too long, and we were newcomers to Livingston Parish. And I lost my train of thought.
A pothole could be some place one day and not be there the next.
Q You've explained that to us before. Let me repeat my question.
MR. CABALLERO: Yes or no is a good answer to this one. Let him ask it again.
BY MR. CASHIO:
Q Are you aware of anyone who you believe saw the pothole that you hit at any time after your accident?
A Ino.
. . . . .
MR. CASHIO: Let me get a clarification. Isn't it correct that you told us earlier that you have never seen this particular pothole that you say you hit?
THE WITNESS: I had never seen it until that day that I went down that hill and I got down in it. There had not been any really deep, deep, potholes.
MR. CABALLERO: You never, ever saw it. You only felt it. That's what you told us. Are you changing that now? Did you ever, ever see that pothole?
THE WITNESS: I never saw the pothole. I'm not changing anything, but y'all have got me so confused.
The evidence shows that the collision between the left front wheel of Mrs. Smith's vehicle and the roadway of the Road did not deflate the tire but did cause some damage to the wheel. The Smiths continued to use the vehicle after the accident. They had a front end alignment done on the vehicle in February of 1987, and at that time they learned the wheel was out of balance. They continued to drive on the wheel until July of 1987, when they bought new tires for the vehicle. At that time, they learned the rim of the wheel was bent. Thereafter, they used the wheel as a spare.
On Monday, December 22, 1986, Mrs. Smith telephoned her physician, Dr. Alan Farries, about her neck. He prescribed some "pain pills and muscle relaxers" for her and made an appointment to see her on Friday, December 26, 1986. She remained in treatment from that time until the time of the trial.
NONJOINDER OF AN INDISPENSABLE PARTY
(Assignment of Error 4)
DPS contends the trial court erred in overruling its peremptory exception raising the objection of nonjoinder of an indispensable party. DPS argues that because Crown is the owner of the roadbed and benefitted economically from the subsequent residential development, it is an indispensable party to the suit.
An indispensable party is one whose interest in the subject matter of the litigation is so interrelated that a complete adjudication of the controversy cannot be made unless he is joined in the action. La.C.C.P. art. 641. Hatfield v. Bush, 540 So.2d 1178 (La.App. 1 Cir.1989). One of the several solidary obligors may be sued to enforce a solidary obligation, without the necessity of joining all others in the action. La.C.C.P. art. 643 provides as follows:
All joint obligees are necessary parties to an action to enforce a joint right, and all joint obligors are necessary parties to an action to enforce a joint obligation.
One or more solidary obligees may sue to enforce a solidary right, and one or *1179 more solidary obligors may be sued to enforce a solidary obligation, without the necessity of joining all others in the action. (Emphasis added)
Official Revision Comment (b) to La.C.C.P. art. 643 provides the following:
(b) ... All solidary obligees are not necessary parties to an action to enforce a solidary right, and all solidary obligors are not necessary parties to an action to enforce a solidary obligation. One or more may sue or be sued; and those not joined are not necessary parties. See Breedlove v. Nicolet, [32 U.S.] 7 Pet. 413, 8 L.Ed. 731 (1833).
This is a suit in tort; it is not a suit to establish the rights of ownership, possession or use of the Road. The issue of the ownership and/or right of use or possession of the Road are collateral to the issue of tort liability. Joint tortfeasors are solidary obligors, and a plaintiff may sue any one, or more, of them.[8]Landry v. State Farm Fire & Casualty Co., 504 So.2d 171 (La.App. 3 Cir.1987); Inabinet v. State Farm Automobile Insurance Co., 262 So.2d 920 (La.App. 1st Cir.1972).
Smith had the right to seek judgment only against DPS; a complete adjudication of the controversy vis-a-vis Smith and DPS can be made without the joinder of Crown. As hereinafter discussed, even though Crown (or Cavenham) is not a party defendant, any fault attributable to it can be allocated herein. La.C.C. art. 2324; La. C.C.P. art. 1812; Haney v. Francewar, 588 So.2d 1172 (La.App. 1st Cir.1991); Perez v. State, Department of Transportation and Development, 578 So.2d 1199 (La.App. 4th Cir.), writ denied, 581 So.2d 706 (La.1991); Babin v. Burnside Terminal, Greater Baton Rouge Port Commission, 577 So.2d 90 (La.App. 1st Cir.1990); Devereux v. Allstate Insurance Company, 557 So.2d 1091 (La.App. 2nd Cir.1990); Varnado v. Continental Insurance Company, 446 So.2d 1343 (La.App. 1st Cir.1984).
This assignment of error is without merit.
TACIT DEDICATION TO PUBLIC USE OF BUDDY ELLIS ROAD
(Assignment of Error 5)
DPS contends the trial court erred in failing to find that the Road became a public road by virtue of a tacit dedication for public use pursuant to La.R.S. 48:491. See A. Yiannopoulos, 2 Louisiana Civil Law Treatise, Property, § 95 and 100, pp. 204-205, 218-220 (1991).
La.R.S. 48:491(B)(1), as amended in 1985, reads as follows:
All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.
For the Road to be classified as a public road under La.R.S. 48:491 three things must be present: (1) the road must have been kept up, maintained, or worked for a period of three years, (2) the keeping up, maintenance and working must have been by the authority of the parish governing authority and (3) the owner must have had some type of knowledge or acquiescence in the maintenance.
The Road was occasionally "graded" by the Police Jury. Witnesses having knowledge of the grading or maintenance testified the maintenance was infrequent and occasional. Rudolph Ratcliff, employed by the Police Jury as Parish Superintendent between 1984 and 1987, testified that the Police Jury never purported to assume any maintenance responsibility for the Road or any jurisdiction over the Road, but always considered the Road to be owned by DPS.
The evidence establishes that only sporadic grading of the Road occurred between the time DPS entered into the servitude agreement with Crown and Smith's accident. Tacit dedication requires more *1180 than a casual or random maintenance of the road. Occasional "brushing up" or token maintenance will not suffice to establish a tacit dedication. Lincoln Parish Police Jury v. Davis, 559 So.2d 935 (La.App. 2nd Cir.1990). Ratcliff also testified that the only time the Police Jury graded the Road was at the request of DPS.
Finally, it should be observed that this is an unusual assignment of error for DPS to assert under the facts of this case. Lt. Robison of DPS testified that he asked Rudolph Ratcliff of the Police Jury to grade the Road. Ratcliff corroborated this testimony. However, under the Crown-DPS servitude agreement, DPS obligated itself not to "do or allow to be done any acts or act which shall cause said right of way to become a public road without the prior written consent of the GRANTOR [Crown]." The record herein contains no written consent by Crown authorizing DPS to request the Police Jury to grade the Road. Had the grading of the Road by the Police Jury resulted in a tacit dedication of the Road for public use, DPS would have been in violation of its contract with Crown and liable to Crown therefor.
DPS did not carry its burden of proving that a tacit dedication of the Road for public use took place. The factual determination by the trial court that the Road did not become a public road by virtue of the maintenance provided by the Police Jury is not clearly wrong.
This assignment of error is without merit.
OCCURRENCE OF THE ACCIDENT
(Assignment of Error 1)
DPS contends the trial court erred in finding that an accident occurred as testified to by Mrs. Smith.
Mrs. Smith testified the accident happened as follows:
Q. All right. Now, just tell the Court please, what happened? How your accident happened?
A. Yes, sir, I was trying to get down the road and I was driving as carefully as I could drive, and when that road floods, you have to pray yourself down it and that day, I forgot to pray, and when I topped this, there's a big culvert just about from where my entrance to the road is down by this red barn there's a creek there and a huge culvert, and that is just about the worst section on the road, and when I went down into that water, you have to go slow or you would drowned your car out, and you had, you can't go to the right and you can't go to the left because there are no ditches there, and the water is flowing, and so, you have to try to go through the middle. Hopefully, you can make it through. And in going through that one section, I hit a pothole that was submerged under the water, that I could not see and I certainly would not have hit it on purpose.
. . . . .
Q. Describe for us what you saw, you obviously left your home, you were driving down Buddy Ellis Road, describe for us what the conditions of the road were on that day, the day of the incident, Decmber [sic] 20, 1986?
A. That day?
Q. Yes, mam [sic].
A. There was water standing on the road from heavy, heavy rain and but once you leave my house on Jennifer Lane and you start going down the road, the, you can't tell how deep that water is until you get into it. You have to just try to go on and get out and drive as carefully as you can to get in and out of the road and to get home, safely.
. . . . .
A. Now, with the road flooded, you are not able to see the condition of the road; is that right?
Q. That is correct.
The trial court specifically found that the accident occurred as testified to by Mrs. Smith.
The Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989) stated the following:
*1181 It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.... In applying the manifestly erroneousclearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo....
When findings are based on determinations regarding the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.... Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.... But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong....
(Footnotes omitted; citations omitted)
After a thorough review of the record, we find no manifest error in this credibility determination by the trial judge.
This assignment of error is without merit.
LIABILITY OF DPS
(Assignments of Error 1, 2 and 3)
DPS contends the trial court erred by finding it at fault because (1) the accident "was caused solely by the gross negligence of the Plaintiff" and (2) a "pothole on a gravel road on which logging operations are being conducted is not a hazardous condition".
The Trial Court's Rationale
The trial court gave the following basic reasons for finding liability on the part of DPS:
It is clear that plaintiff and all of the other persons who acquired their property either directly from Crown Zellerbach or by mesne conveyance had an absolute right to legal passage over Buddy Ellis Road as it was the passage previously exercised before any sell offs occurred, as specifically mandated by La.Civ.Code art. 694.
Given those circumstances, it is clearly appropriate to conclude, as the Court does, that plaintiff and all other persons using the road as the sole means of ingress and egress to and from the various residences out there were "other parties" to whom the right of use of Buddy Ellis Road was granted, as contemplated by the servitude or right-of-way agreement. Certainly Crown Zellerbach had the authority to impose such obligation upon defendant, and it makes no sense to suggest that defendant had an obligation only to maintain the road for Crown Zellerbach but not for these other people. Obviously, even when defendant initially acquired the servitude or right-of-way, it assumed the obligation of constructing, *1182 improving or maintaining the road for the benefit of the Bobby Gill residence.
The Court accordingly concludes that the sole cause of the incident sued on herein was the negligence of defendant, State of Louisiana through the Department of Public Safety, in failing to fulfill its contractual and legal obligations to at least maintain Buddy Ellis road. Defendant should never have contractually undertaken to assume such obligation of maintenance without assuring itself of the means of accomplishing such undertaking.
Moreover, the Court notes that the servitude or right-of-way agreement, which includes the aforementioned maintenance obligation, is with the state of Louisiana, albeit represented in that instrument by Hickley M. Wagguespack, Director of Louisiana Department of Public Safety. This was, therefore, in essence a contractual obligation assumed by the State.
The proper methodology for analyzing this case is set forth in Socorro v. City of New Orleans, 579 So.2d 931 (La.1991). In Socorro, 579 So.2d at 938-939, the court stated that the following questions should be answered to determine the responsibilities of the parties:
(1) Was the conduct in question a causein-fact of the resulting harm?
(2) What, if any, duties were owed by the respective parties?
(3) Were the requisite duties breached?
(4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?
We partially answered the first question in our review of DPS's assignment of error 1 concerning whether or not an accident occurred. Therein, we concluded that the trial judge was not clearly wrong in concluding that Mrs. Smith drove into a flooded area of the Road and struck a pothole. After reviewing the record, we also conclude that the trial judge correctly held that this accident was a cause-in-fact of an injury to Mrs. Smith's neck.
Next, we must consider what, if any, duties were owed by DPS, Crown and Mrs. Smith. The trial court held that DPS owed duties in contract and tort to the Smiths.
General Duties of Owner or Custodian of Immovable Property
The owner, or person having custody, of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. This duty is the same under the strict liability theory of La.C.C. art. 2317 as under the negligent liability theory of La.C.C. art. 2315. Usually the difference in proof between these theories of liability is that under La.C.C. art. 2315, it must be shown that the owner, or person in custody, either knew or should have known of the risk, whereas under La.C.C. art. 2317, a claimant is relieved of proving the defendant's knowledge of the risk Clement v. State, Department of Transportation and Development, 528 So.2d 176 (La.App. 1st Cir.), writ denied, 532 So.2d 157 (La.1988). However, La.R.S. 9:2800 provides that even under a strict liability theory, when the defendant is a public entity, the plaintiff must prove that the defendant had actual or constructive knowledge of the particular vice or defect which caused the damage and failed to remedy it within a reasonable time. Under either theory of liability (when the defendant is a state entity), the plaintiff has the burden of proving that: (1) the property which caused the damage was in the "custody" of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises (breach of duty); (3) the defendant had actual or constructive knowledge of the risk; and (4) that the defect in the property was a cause in fact of the resulting injury. In both negligence and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Under either theory of liability, the court must decide if the risk which causes the injury is within the ambit of protection of the duty. Farr v. Montgomery Ward and *1183 Company, Inc., 430 So.2d 1141 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (La. 1983).
Liability of DPS under La.C.C. art. 2317
As previously indicated, an essential element of a cause of action under La.C.C. art. 2317 is that the thing that caused the damage was in the custody (garde) of the defendant. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La. 1990).
Generally speaking, the owner of a thing has the custody (garde) of it. Ross v. La Coste de Monterville, 502 So.2d 1026 (La.1987). However, there may be situations where the custody (garde) of a thing reposes with someone other than the owner. In Loescher v. Parr, 324 So.2d 441, 449 n. 7 (La.1975) appears the following:
7. In Verlander, We are Responsible..., 2 Tulane Civil Law Forum, No. 2, p. 64 (1974), which contains a perceptive and thorough analysis of the French, Quebecois, and Louisiana interpretations, it is suggested: "[T]he things in one's care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufructuary, the borrower for use and the repairmen, among others. It will not belong to the agent or the mandatory, the employee or the servant, or to anyone else for whom there is a responsible principal. The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it. He may also lose the care of this thing, principally by the theft of the thing."
(Emphasis added)
See also Griffin v. Foti, 523 So.2d 935 (La.App. 4th Cir.), writ denied, 531 So.2d 272 (La.1988). In King v. Louviere, 543 So.2d 1327, 1328-1329 (La.1989), the court set forth the following rules for determining who had the custody (garde) of a thing:
Under La. Civil Code article 2317 the person who has the garde of a thing is he who has the legal duty to prevent its vice or defect from harming another. The determination of the existence of this duty is made through a process of policy considerations similar to that used in determining other delictual duties.... To assist the trier of fact in this deliberation this court has set forth several general principles: the liability arises from the guardian's legal relationship to the thing whose defect creates an unreasonable risk of injury to others.... The garde is the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it, to prevent it from causing damage to others. The things in one's care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them.... The guardian is in a better position than the innocent victim to detect, evaluate and take steps to eliminate an unreasonable risk of harm arising in the thing.
. . . . .
In the present case, and in many others, a very important consideration in determining whether a person has the garde of a thing may be found in the policy established by related statutes.
(Emphasis added; citations omitted)
Determining who has the custody (garde) of a thing is a question of fact. Doughty v. Insured Lloyds Insurance Co., 576 So.2d 461 (La.1991); Coleman v. Otis Elevator Company, 582 So.2d 341 (La.App. 4th Cir.1991). Further, in Doughty, 576 So.2d at 464, appears the following:
Under most circumstances ownership alone establishes the requisite benefit, control and authority to find garde.... Article 477 of the civil code defines ownership as "the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it *1184 within the limits and under the conditions established by law." Although ownership creates the presumption of garde, this presumption is rebuttable by the owner. To find otherwise would rewrite article 2317 to impose strict liability for the "ownership" of a defective thing rather than liability arising out of "custody" of the thing.
In Turner v. Turner, 455 So.2d 1374, 1379 (La.1984), the court discussed the effect of a rebuttable presumption as follows:
As in any matter in which there is a rebuttable presumption, the burden rests with the party challenging the presumption to convince the fact-finder that his proposed conclusion is more correct than the presumed one. A presumption does not have any probative value, but merely provides the fact-finder with a conclusion in the absence of proof to the contrary.... "Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear."
See also La.C.C. art. 1851; La.R.S. 15:432; L. Hargrave, Presumptions and Burdens of Proof in Louisiana Property Law, 46 La.L.Rev. 225, 225-227 (1985).
It is uncontested in this case that the owner of the Road at the time of the accident was either Crown or Cavenham; DPS was not the owner of the Road. However, DPS could be liable under La.C.C. art. 2317 if it had the custody (garde) of the Road.
A review of the Crown-DPS conventional servitude agreement shows that Crown gave DPS a servitude of passage on the Road in consideration for which DPS agreed to "improve and maintain" the Road.[9] However, Crown retained the right to use the Road "at any and all times" and reserved the right to grant the right of use of the Road to others. Further, Crown limited the servitude grant only to DPS and its agents, employees, heirs and assigns, and obligated DPS not to do anything that would make the servitude subject to public use. In this factual and legal posture, the custody (garde) of the Road remained in Crown (and was passed on to Cavenham) for purposes of liability to third persons under La.C.C. art. 2317. This factual situation is analogous to that in Spott v. Otis Elevator Company, 601 So.2d 1355. (La. 1992). In Spott, Otis Elevator Company (Otis) manufactured an elevator that was purchased by Pelican Homestead & Savings Association (Pelican). Otis entered into a maintenance contract with Pelican and an Otis employee regularly inspected the elevator. The elevator malfunctioned and injured Spott. Spott asserted Otis had the custody (garde) of the elevator and was strictly liable to him pursuant to La.C.C. art. 2317, citing Coleman v. Otis Elevator Co., 582 So.2d 341 (La.App. 4th Cir.1991). The Louisiana Supreme Court rejected this argument with the following rationale:
The plaintiff's contention is without merit in this case. Pelican is the primary party benefitting from the elevators on its premises. Moreover, the facts in Coleman are distinguishable. In Coleman, Otis hired an employee to work forty hours a week at Charity Hospital to upgrade and to maintain the hospital's forty-eight elevators. Hence, Otis had garde of the elevators, the Otis employee being physically on the premises full time. Consequently, on the peculiar facts of Coleman, the court of appeal's determination that Otis had garde was sound. In this case, however, an Otis employee visited Pelican only weekly for a brief period of time. Moreover, a service contract by itself does not create garde. Hunt v. City Stores, Inc., 387 So.2d 585, 589 (La.1980) (construing a service contract provision with language identical to that in this case, we found the store owner was the sole custodian of the escalator); see also Brown [v. Otis Elevator Co.], supra, 535 So.2d [525] at 527 [(La.App. 4th Cir.1988)]. The service contract in this case, in fact, specifically provides that Pelican retains control of the elevator. Because we *1185 find Otis did not have garde of the elevator, Otis cannot be found strictly liable.
(Emphasis added)
Spott, 601 So.2d at 1363.
In the absence of specific statutory authority, Crown did not alter its legal relations with third persons using the Road when it entered into the contract with DPS. See, for example, La.R.S. 9:3221. Crown had, and retained, the duty to third persons to maintain the Road. Although Crown contracted with DPS to perform the maintenance, under the facts of this case Crown was still responsible, as the owner and custodian of the Road, to third persons for purposes of Article 2317. This situation is analogous to that where DOTD contracts for the construction, repair or maintenance of a public roadway, and the legal result herein should be the same. See Roberts v. State, Department of Transportation and Development, 576 So.2d 85 (La.App. 2nd Cir.), writ denied, 581 So.2d 685 (La.1991); Robinson v. State, Department of Transportation and Development, 454 So.2d 257 (La.App. 1st Cir.), writ denied, 458 So.2d 122 (La.1984) (concurring opinion of Shortess, J.). Because DPS did not have custody (garde) of the Road, it is not liable pursuant to La.C.C. art. 2317. Although Crown is not a party defendant, its duty and liability for the Road are relevant in these proceedings for the purposes of defining the duties of the parties and allocating percentages of fault. La.C.C. art. 2324; La.C.C.P. art. 1812.
Duty of DPS Under La.C.C. art. 2315
DPS owed a contractual duty to Crown (and subsequently Cavenham) to "improve and maintain" the Road. Generally, contractual duties are owed strictly by and to the parties to the contract. La.C.C. arts. 1983 and 1985. The DPS-Crown servitude agreement did not contain a stipulation pour autrui (third party beneficiary) provision in favor of the Smiths. La.C.C. arts. 1978-1982. However, in some instances, a party's assumption of a contractual duty may create a corollary or incidental tort duty in favor of third persons. See discussions in G. Morris, Developments in the Law 1988-1989: Business Associations, 50 La.L.Rev. 211 (1989). Thus, it has been held that a person who builds something pursuant to a construction contract owes a duty to third persons pursuant to La.C.C. art. 2315 to perform in a workmanlike manner free from defects attributable to either faulty materials or poor workmanship and, if the construction contract is negligently performed, a third person has a cause of action under Article 2315 for any injuries caused thereby. Clement, 528 So.2d at 179-180 and the cases cited therein. To determine whether DPS owed a tort duty to the Smiths pursuant to La.C.C. art. 2315, we must examine the nature of the DPS-Crown servitude contract and the pertinent laws applicable thereto.
Crown granted a conventional servitude of passage for a private road to DPS and its agents, employees, heirs and assigns. It was not contemplated by the parties that the Road would be a public road subject to public use.[10] The language of the contract clearly and unambiguously shows that the parties did not contemplate that the Road would be maintained as a public road subject to substantial residential traffic. Thus, DPS's obligation to maintain the Road only required the amount of maintenance necessary for DPS's use and that of Crown and "other parties" to whom Crown granted the right of use. In 1975, when the conventional servitude was executed, Crown used the Road for logging and continued to do so until the time of the accident herein. In 1975, the Road was made of gravel and dirt and was located in an isolated area. No testimony, expert or otherwise, was presented to show how much maintenance was reasonably necessary for a private, dirt and gravel, logging road in an isolated rural area. Further, no evidence was presented to show the cost of achieving the required amount of maintenance for 7,564.61 feet of roadway.
*1186 The trial court found Mrs. Smith "had an absolute right to legal passage over Buddy Ellis Road as it was the passage previously exercised before any sell offs occurred", citing La.C.C. art. 694 as authority. La. C.C. art. 694 provides as follows:
When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.
See the discussion of La.C.C. art. 694 in A. Yiannopoulos, 4 Louisiana Civil Law Treatise, Predial Servitudes, § 99, pp. 291-300 (1983). Implicit in this ruling by the trial judge is a holding that a voluntary alienation by Crown (that was binding on DPS) caused an enclavement of the Smith's property. Also implicit in the ruling is that because the Smiths have a right of passage under Article 694, they are "other parties" within the purview of the Crown-DPS servitude contract. Accordingly, we must look at the Smith's chain of title to see if and/or when a "voluntary alienation" by Crown caused an enclavement of the property on which the Smith's land is located. Further, DPS is a third person for purposes of any acts by Crown that created a servitude in favor of the Smiths.
The law applicable to this issue is set forth in Dallas v. Farrington, 490 So.2d 265, 269-270 (La.1986) as follows:
No conventional servitude was ever established. In the agreement to purchase, Farrington obligated himself as a condition of the sale to grant plaintiffs a servitude to use Roblaine Street for passage to their property, but the grant was omitted from the act of sale which transferred the property.
Contracts affecting immovable property must be recorded in order to affect third parties. La.R.S. 9:2721 and 2756. The public records doctrine is essentially a negative doctrine declaring that what is not recorded is not effective except between the parties, and a third party in purchasing immovable property is entitled to rely on the absence from the public records of any unrecorded interest in the property such as a sale or a grant of a servitude. Phillips v. Parker, 483 So.2d 972 (La.1986). Because recordation is essential for effectiveness against third parties, actual knowledge by third parties of unrecorded interests is immaterial. McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909); Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tul.L.Rev. 491 (1965).
. . . . .
Legal Servitude
A legal servitude is a limitation on ownership imposed by law. La.C.C.Art. 659. The legal servitude of passage in favor of an enclosed estate is a limitation imposed by law on the ownership of lands surrounding the enclosed estate. La.C.C.Art. 689. The law affords the owner of an estate which has no access to a public road the right to demand forced passage across his neighbor's land which offers the shortest and most convenient route to a public road, usually upon payment of indemnity fixed by agreement or by the court. However, if property becomes enclosed because of an alienation of part or all of the remainder of the estate, passage must be furnished gratuitously by the owner of the land over which passage was previously exercised, even if it is not the shortest route to the public road. La.C.C.Art. 694.
(Italics in original)
See also Comment, The Right of Passage for the Benefit of an Enclosed Estate, 47 La.L.Rev. 199, 211-215 (1986). Any doubt as to the existence of a predial servitude must be resolved in favor of the servient estate. La.C.C. art. 730; Robert Investment Co., Inc. v. Eastbank, Inc., 496 So.2d 465 (La.App. 1st Cir.1986).
The record contains no conventional servitude of passage agreement by Crown (or Cavenham) in favor of Natchez, the Brackins or the Smiths for use of the Road. The record contains no evidence to show *1187 that Crown (or Cavenham) orally[11] granted a right to use the Road to Natchez, the Brackins or the Smiths. Pursuant to the Crown-DPS servitude agreement, DPS did not have the right to grant the use of the Road to third persons. Thus, if the Smiths had a right of passage on the Road, it had to be acquired pursuant to either La.C.C. art. 689 or La.C.C. art. 694. La.C.C. art. 689 provides as follows:
The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.
See A. Yiannopoulos, 4 Louisiana Civil Law Treatise, Predial Servitudes, §§ 90-98, pp. 260-291 (1983).
The three instruments by which the Smiths acquired title to their property from the Brackins were filed in evidence as Exhibit D-6. The property descriptions in these instruments state that the Smiths acquired Lots 5, 6 and 7 of Ashley Heights, Third Filing "all in accordance with survey plat prepared by Alvin Fairburn & Associates, Reg. C.E. & L.S., for Wayne and James Brackin, a copy of which is duly recorded in the official records of the Clerk and Recorder for Livingston parish." The survey plat was not filed in the record, and the three lots are not described by metes and bounds. Thus, the fact of enclavement can not be determined from the juridical acts by which the Smiths acquired their property.[12] However, Mrs. Smith testified that Jennifer Lane passed in front of her lots and gave her access to the Road.[13] Attached as Exhibit A to Mrs. Smith's deposition is a sketch of the area where she lives, and it shows her property is bounded on the west by a fence marked "S. Polic", on the south by property of E. King and on the east by Jennifer Lane. The ownership of the land bounding the Smith property on the north is not marked. Mrs. Smith testified her only access from her property to La. 447 is down Jennifer Lane to the Road and thence to La. 447. Assuming that the status of Jennifer Lane is not relevant, this evidence is sufficient to show the fact of enclavement. The remaining questions are what type of enclavement is this and who caused it.
On October 19, 1984, Crown and Natchez executed an act of exchange. In this instrument, Crown conveyed 32 tracts of land in Livingston parish to Natchez. Six of these tracts were located in Sections 10, 11, 12, 15 and 22 of Township 7 South, Range 3 East. Tract No. 19 is located in Section 11, contains 31.34 acres and is the tract from which Ashley Heights was developed. The description of Tract No. 19 shows it is in the W½ of the NE¼ and the E½ of the NW¼ of Section 11. The particular description of Tract No. 19 is a course and distance (land survey) description which also states that Tract No. 19 is bounded on the west by "the east line of property conveyed to the State of Louisiana, Dept. of Public Safety" and is bounded, in part, on the south by the "north margin of Buddy Ellis Road". The particular description does not give the ownership of the properties bounding Tract No. 19 on the north, east and part of the south. Because this property description does not give the ownership of the properties bounding Tract No. 19 on the north, east and part of the south, it does not exclude the possibility that Natchez owned property contiguous to Tract No. 19 (and possibly other tracts) and the possibility that such a contiguous tract had access to a public road. Natchez was not given a servitude of passage over the Road in the act of exchange. Accordingly, this instrument does not *1188 prove that Crown caused the Smith's property to be enclaved by alienation.[14]
During the testimony of Edward J. Murphy, DPS's expert witness on abstracts and title examination, the following took place:
Q. Mr. Murphy, these documents represent the acquisition by Jesse Warren Smith, Sr. and Jeanne Harwell Smith of their property in Ashley Heights Subdivision; do they not?
A. Yes, indeed, they do.
Q. And that is the property they presently own?
A. That's correct.
BY MR. SCHMIDT:
Your Honor, I would ask that these three instruments then, be entered as Defendant Department of Public Safety Six, in globo, and enter of record.
BY THE COURT:
So ordered.
Q. Mr. Murphy, in your examination of the title, you did not find where the Smiths obtained any right of way or use of the Buddy Ellis Road?
A. No, they did not.
Q. Nor did anyone else other than the State of Louisiana?
A. That's right.
Q. For a private road?
A. That's right.
Q. If you were to render a title opinion regarding the Smith's property, would you have an exception to the fact that there is no written right of way of ingress and egress to a public road?
A. Yes, I would, and in the whole of Ashley Heights, I would have to bring up the fact that there is as far as the Buddy Ellis Road goes, there is no access to it by any kind of deed of record in the Parish of Livingston, in the Conveyances.
BY MR. SCHMIDT:
Would you answer other counsel's questions, please.
CROSS EXAMINATION BY MR. DUE BY MR. DUE:
Q. Now, under those circumstances, these people would certainly have the right, under the law of Louisiana, to seek to get from Crown Zellerbach who created this situation, a right of ingress and egress, correct?
BY MR. MURPHY:
A. I suppose, yes, that's true, to the nearest public road, which I am not equipped to indicate where it would be.
BY THE COURT:
As I appreciate the law, and correct me if you think I'm wrong. The right of ingress and egress is not necessarily to the, it's to the nearest public road, by means of the nearest available and most convenient access.
BY MR. MURPHY:
That's right.
BY THE COURT:
Which in this instance would be the Buddy Ellis Road.
BY MR. MURPHY:
Would be the most conyeah, in fact, what is the most, you are right, what in fact, is the most convenient access to the public road, to the nearest public road, yeah.
BY THE COURT:
All right.
Q. In other words, if these people, if they took the position, okay, look, our ultimate successor in title was Crown Zellerbach Corporation, they couldn't, for example, come into court and force Crown Zellerbach to build them a brand new road where Crown Zellerbach could simply say that Buddy Ellis Road is already here and that will be your access to the public road; isn't that correct?
A. Yes, they could take that action is [sic] they wanted to, yes.
Q. Well, the point is, as the Judge is saying, the most logical way that this all would have been resolved would have been by having these people have the access, since Crown Zellerbach had *1189 it in their favor, the reservation, for them or anybody else that they wanted to have it flow, correct, you saw that in the servitude agreement?
A. Yes, that's right, Crown Zellerbach could, if they wanted to, grant it to anybody, yes.
Q. Or simply if they didn't want to, you know
A. If they were awarded it by the Court, yes.
(Emphasis added)
Murphy was not questioned about the ownership of the properties contiguous to the northern, eastern and part of the southern boundaries of Tract No. 19 when it was conveyed by Crown to Natchez in 1984.
A review of the above quoted exchange between Murphy and the trial judge shows that they were discussing the type of enclavement provided for in Article 689 and not that provided for in Article 694. Article 689 provides that "[T]he owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road." (Emphasis added) Article 689 must be construed in reference to Article 692 that provides as follows:
The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.
(Emphasis added)
The trial judge and Murphy both referred to "the nearest public road" as provided for in Article 689 and both referred to the "most convenient access" as provided for in Article 692. Article 694 states that the right of passage must be over the land of the owner who caused the enclavement by alienation "even if it is not the shortest route to the public road." Thus, the evidence is insufficient to show that Crown caused an enclavement by alienation under Article 694, and, the factual ruling by the trial judge to the contrary is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the enclavement by alienation was caused by Natchez or the Brackins, their property, and not that of Crown, would be subject to the Article 694 servitude.
However, the Smiths have proved they are entitled to claim a legal servitude of forced passage pursuant to La.C.C. arts. 689-692. They have further established that utilization of the Road would be the appropriate way to exercise this right. However, the right to a legal servitude of forced passage pursuant to La.C.C. art. 689 is not selfexecuting. In A. Yiannopoulos, 4 Louisiana Civil Law Treatise, Predial Servitudes, § 96, pp. 284 and 285 (1983) appears the following:
According to Louisiana jurisprudence, supported by doctrinal considerations, the Civil Code merely confers on the owner of an enclosed estate the right to demand the establishment of a servitude of right of way on neighboring lands; it does not by itself give rise to a servitude of right of way nor does it confer on the owner of the enclosed estate authority to use a particular part of the neighboring lands as a passageway to a public road. The servitude of right of way comes into existence when the route of access to a public road is fixed by agreement of the neighbors or by a judicial decision. A permission to use the land of a neighbor for access to a public road does not suffice; it "cannot be considered as a grant of the servitude of way, or as an acknowledgment that passage was due."
Thus, the owner of an enclosed estate is not entitled to injunctive relief or to possessory protection when a neighbor refuses to let him cross his land in order to gain access to a public road. He is entitled to such relief when he shows that he has the right of way on "a determined part" of the servient estate "by obtaining from the defendant, or contradictorily with him from the court, a designation of the place in which it is to be exercised."
(Emphasis added)
Further, if the Smiths claim a legal servitude of forced passage over the Road they must indemnify Crown for any damage it may occasion. La.C.C. art. 689. Finally, if *1190 the Smiths claim a legal servitude of forced passage, they only receive a right to cross their neighbor's land; the neighbor (servient estate) is not obligated to build and maintain a roadway for the use of the dominant (enclosed) estate. La.C.C. art. 691 provides as follows:
The owner of the enclosed estate may construct on the right of way the type of road or railroad reasonably necessary for the exercise of the servitude.
See, for example, Martini v. Cowart, 23 So.2d 655 (La.App. 2nd Cir.1945). Had the Smiths obtained a right of passage over the Road pursuant to Article 689, they would have had an obligation to build and/or maintain the Road pursuant to Article 692.
There is no evidence in the record to show that prior to the accident Crown (or Cavenham) gave the Smiths a conventional servitude agreement to use the Road, or that the Smith's right to use the Road was fixed by a judicial decision. In this factual and legal posture, Mrs. Smith used the Road without the legal consent of Crown. However, as observed in Entrevia v. Hood, 427 So.2d 1146, 1150 (La.1983), this status does not bar the Smiths' recovery of damages as a matter of law; it is only relevant to the issues of "the magnitude of the risk posed and the gravity of the harm threatened".
The evidence shows that DPS was aware at some point in time that properties along the Road were being developed for residential purposes and that the only access the residents had to their properties was along the Road. However, DPS was not the cause of the enclavement of the properties, and, on the face of the public record, none of these people had a conventional servitude of passage in his favor. Although the Crown-DPS servitude agreement obligated DPS not to "allow to be done any acts or act which shall cause said right of way to become a public road", DPS "tolerated" the use of the Road by the residents. DPS's general counsel, Howard P. Elliot, Jr., gave the following testimony concerning this:
Q. Now, can you tell me what was the understanding as to what that was all about? Was this that Crown Zellerbach didn't want to ... You tell me what ...?
A. I think when we first acquired this property, we were under the opinion that this was going to be our road for getting back and forth to the property that we had acquired back there. And we knew that Crown did use this property and would continue to use it and that Crown did not want to give up, I guess, you know, the road without an agreement that we were going to maintain it. So, we agreed that we would take care of the road and that way, Crown would benefit from our maintenance and we would benefit by getting the use of the road.
Q. Okay. But certainly, at some point along in time, as you have previously indicated, Crown started selling off land to people; correct?
A. Right.
Q. And you knew then, by you, I am of course talking in terms of the Department of Public Safety, that you knew at that time, that these people, this was going to be their only means of getting to their land that they had bought for their homesites; correct?
A. Yes. We were somewhat concerned when the lots were being sold out there. The primary concern that we had was, that these people were going to later have to complain about the activities that we were conducting out there, and that they would be located in close proximity to our pre-existing property.
Q. But again, the Department of Public Safety never went to Crown Zellerbach and said, hey, wait a minute, look, you know, we are just going to maintain this road for you and we are not going to maintain it for any of these people who you are selling homesites to?
A. Right.
Q. None of that was ever considered, right?
A. No.
Q. And the Department of Public Safety certainly never considered any of these people who had bought homesites *1191 out there, to be trespassing on the road, did you all?
A. No.
Q. Okay. And you certainly didn't consider the school bus to be trespassing on the road, to go pickup the kids out there?
A. No, we, we were [sic] tolerated the use of the road because that was the only way they had to get access to their property and of course, you know, public relations is an important aspect of any public agency.
Q. Okay. For example, you all never told, when all the hoopla was going on, and before the situation finally got resolved, the Department of Public Safety never got up there and took the position, none of these people have any right to use this road, and that they were trespassing, or anything like that, did you all?
A. No.
After considering all of the facts and circumstances of this case and the applicable law, we conclude that DPS owed a tort duty to third persons using the Road to maintain the Road as a private, rural, gravel and dirt, logging road. DPS did not owe a contractual duty to the Smiths to maintain the Road, and the trial judge's ruling to the contrary on this issue is wrong as a matter of fact and law.
In Dobson v. Louisiana Power and Light Company, 567 So.2d 569, 573 (La. 1990), the court defined the duty that a person has to protect himself as follows:
Any person is required by law to recognize that his conduct involves a risk of causing harm to himself if a reasonable person would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence and judgment as a reasonable person would have.
See also Putman v. Gulf States Utilities, 588 So.2d 1223 (La.App. 1st Cir.1991). In Socorro, the court held it was the primary duty of a diver to ascertain the safety of diving head first into untested waters. Socorro, 579 So.2d at 939. By analogy, we hold that Mrs. Smith had the primary duty under the facts of this case to ascertain the safety of driving through the flooded portion of the Road. Mrs. Smith had been living in Ashley Heights and using the Road 2 or 3 times a week since September of 1986. She knew logging operations were being conducted on land in the area and that the Road was being used by logging trucks. She was well aware of the condition of the Road on December 20, 1986, because the day was sunny and just prior to the accident she had attempted to drive around a pothole in the Road and slipped into the roadside ditch. The fact that flood water concealed the condition of the surface of the Road should have increased her precautions for protecting herself.
DPS's duty to maintain the Road is no greater than the duty of the owner of the Road, and that is to keep the Road in a reasonably safe condition as a private, rural, dirt and gravel, logging road. As observed in Socorro, 579 So.2d at 939 "[W]hether a particular risk is unreasonable is a difficult question which requires a balance of the intended benefit of the thing with its potential for harm and cost of prevention." Further, DPS "is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner." Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976); Tisdale v. State, Departments of Transportation and Natural Resources, 581 So.2d 1045 (La.App. 1st Cir.), writ denied, 588 So.2d 1121 (La.1991). Mrs. Smith knew the Road had potholes in it, she saw the Road was flooded, and she should have known that the flood waters could conceal a pothole. She only reduced her speed to approximately 15 miles per hour. She should have reduced the speed of her vehicle sufficiently to accommodate the presence of a concealed pothole. She did not do so and struck a pothole with sufficient force to damage the rim of her left front tire and injure her neck.
An essential element of Mrs. Smith's negligence cause of action against DPS *1192 under La.C.C. art. 2315 is that DPS knew, or should have known, of the risk that caused her injuries. Kent v. Gulf States Utilities Company, 418 So.2d 493 (La. 1982); Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (La. 1983). The evidence shows that DPS knew of the general condition of the Road. However, there is no evidence to show that DPS knew, or should have known, of the existence of the pothole Mrs. Smith struck. Mrs. Smith testified she traveled the Road 2 or 3 times a week but did not see the pothole she struck prior to the accident. She testified "There had not been any really deep, deep, potholes" and that "one day a pothole will be somewhere, the next day, it won't". She further testified the pothole she struck "was filled up because of the shifting sand in that area" shortly after her accident. Further, because of the transitory nature of the pothole Mrs. Smith struck, there is no evidence that DPS's failure to maintain the Road caused the pothole to exist. The Road was a dirt and gravel logging road that was being used for logging purposes. Mrs. Smith correctly noted that in these circumstances "Potholes open, potholes close."[15] The factual findings of the trial court to the contrary are manifestly erroneous. Because Mrs. Smith has failed to prove that DPS knew, or should have known, of the pothole she struck, and failed to prove that DPS's failure to maintain the Road caused the pothole to exist, DPS is not liable to Mrs. Smith.
These assignments of error have merit.
DECREE
For the foregoing reasons, the judgment of the trial court is reversed, and judgment is rendered in favor of DPS and against Mrs. Smith dismissing Mrs. Smith's petition with prejudice. Mrs. Smith is cast for all costs.
REVERSED AND RENDERED.
CRAIN, J., concurs with reasons.
WATKINS, J., concurs for the reasons assigned by CRAIN, J.
GONZALES, J., respectfully dissents.
SHORTESS, J., dissents and assigns reasons.
CRAIN, Judge, concurs.
I concur with the result. The plaintiff was allegedly injured when she hit a pothole while driving through the flooded area of a road. She twice testified that she had never seen a pothole in that particular area, even as recent as the day before. Regardless of the duty of the Department of Public Safety, it could not reasonably be expected to repair a pothole that apparently came into existence as the result of flooding, with the water still there. The plaintiff was aware that flooding could cause potholes. A point is reached where a person who takes deliberate action in face of a known risk must bear the responsibility for the results of that action.
I concur.
SHORTESS, Judge, dissenting.
The plurality's reasoning reminds me of the carnival shell game. Now you see it, *1193 now you don't. That pothole is around here, somewhere, but where, no one knows.
In my opinion, the trial court was not clearly wrong in finding the pothole represented an unreasonably dangerous condition. This circuit has found similar potholes to be unreasonably dangerous. See Miller v. State of Louisiana, 572 So.2d 197 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1114 (La.1991) (a road in the Pearl River Wildlife Management Area with a five-to six-inch depression across the road considered unreasonably dangerous); Miller v. Great Atlantic & Pacific Tea Co., 510 So.2d 695 (La.App. 1st Cir.), writ denied, 513 So.2d 1213 (La.1987) (a pothole in the parking lot of a supermarket was considered unreasonably dangerous). Admittedly, in Lognion v. Calcasieu Parish Police Jury, 503 So.2d 1092 (La.App. 3d Cir.), writs denied, 507 So.2d 227 (La.1987), the third circuit did say that a three-inch washboard was not an unreasonably dangerous condition for purposes of liability under Civil Code article 2317; however, the court also found the police jury liable under Civil Code article 2315 for not properly maintaining the gravel road.
The questions presented here are essentially fact questions. Maples v. Merrimack Mutual Fire Ins. Co., 567 So.2d 1178 (La.App. 3d Cir.1990), writ denied, 572 So.2d 64 (La.1991). The accident occurred on December 20, 1986. The last time defendant graded the road was January 13, 1986, almost one year prior to the accident. Defendant received numerous complaints over the general condition of the road prior to the accident. According to the testimony of Howard Elliott, Jr., defendant's general counsel, defendant knew the road was being used by the general public, and because "public relations is an important part of any public agency," Elliott stated the public was allowed to use the road.
The pothole was large enough to bend the rim of plaintiff's tire and snap her head back even at the slow rate of speed she was traveling. From the facts as set forth in Judge Lanier's regular opinion, the trial court's finding the state at fault is "reasonable in light of the record reviewed in its entirety." Rosell v. ESCO, 549 So.2d 840 at 844.
I would affirm but would also amend to cast plaintiff with some of the fault. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985).
I respectfully dissent.
NOTES
[1] Retired Captain William T. Poe of the Louisiana State Police testified that the first "couple of hundred feet" on the east (La. 447) end of the Road belonged to the Juban family.
[2] The Juban property is apparently located in Section 12, Township 7 South, Range 3 East. The Juban servitude agreement was not filed in evidence.
[3] The conveyance by which Mr. Haggard obtained his property was not discussed or filed of record.
[4] In his testimony, Trooper Robison implied that Crown removed the bridge over West Colyell Creek.
[5] On January 3, 1986, the Brackins and the Smiths executed an act of correction of the sale. On April 15, 1988, the Smiths bought lot 5 from the Brackins.
[6] No documentary evidence or act of conveyance was filed in evidence in connection with this testimony.
[7] In her deposition of July 27, 1990, filed in evidence as D-2, Mrs. Smith estimated the distance as ½ mile (2,640 feet). Daniel Haggard testified he lived about 0.8 mile west of La. 447 and the red barn was located 700 to 800 feet east of his home (3,400 feet from La. 447).
[8] If DPS wanted to join Crown, it should have joined it as a third party.
[9] The servitude agreement also obligated DPS to "construct" the Road. This obligation is meaningless because the Road was constructed prior to the execution of the contract.
[10] See A. Yiannopoulos, 2 Louisiana Civil Law Treatise, Property, § 96, pp. 205-207 (1991). On September 5, 1990, Cavenham granted a conventional servitude for public use of the Road to the Police Jury. The length of the road subject to this servitude was stated as "8,100 feet".
[11] We do not rule on whether or not the granting of oral right to use the Road would be binding on DPS.
[12] Compare the boundary agreement between Crown and DPS dated October 17, 1975, filed in evidence as Exhibit P-3 which states "[T]he foregoing described properties [of DPS] are completely surrounded by land owned by CROWN...."
[13] The record does not reflect if Jennifer Lane is a public or private road.
[14] The act of sale from Natchez to the Brackins has the identical property description for Tract No. 19 as did the Crown-Natchez exchange.
[15] For cases on the issue of whether a pothole in a dirt and gravel logging road is an unreasonable risk, compare the following cases in which no liability was found, Bealer v. National Tea Co., 597 So.2d 1242 (La.App. 3rd Cir.1992) (pedestrian stepped in a pothole 2.5 feet wide and 12 inches deep with a chunk of concrete in the bottom of it at a construction site); Maples v. Merrimack Mutual Fire Insurance Company, 567 So.2d 1178 (La.App. 3rd Cir.1990), writ denied, 572 So.2d 64 (La.1991) (pedestrian stepped in 4 to 6 inch rut in a driveway); Paul v. Commercial Union Insurance Company, 535 So.2d 1319 (La.App. 5th Cir.1988) (pedestrian fell in a 6 inch deep mud hole at a construction site that was a sea of mud and water littered with construction debris); Lognion v. Calcasieu Parish Police Jury, 503 So.2d 1092, 1095 (La.App. 3rd Cir.), writ denied, 507 So.2d 227 (La.1987) (potholes and washboards in roadway), with the following cases that found fault, Miller v. State, 572 So.2d 197 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1114 (La.1991) (5 to 6 inch depression across the entire width of a blacktopped road); Miller v. Great Atlantic & Pacific Tea Co., 510 So.2d 695 (La.App. 1st Cir.), writ denied, 513 So.2d 1213 (La.1987) (pothole in supermarket parking lot).
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493 S.W.2d 814 (1973)
James Duke CREEL, Appellant,
v.
The STATE of Texas, Appellee.
No. 46035.
Court of Criminal Appeals of Texas.
April 18, 1973.
Rehearing Denied May 16, 1973.
*815 Jim M. Cross and James E. Robinson, Abilene, for appellant.
Emory Walton, Dist. Atty., Eastland, Ed Paynter, Dist. Atty., and Lynn Ingalsbe, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
JACKSON, Commissioner.
Appellant was convicted on a plea of not guilty of murder with malice by a jury; the punishment, life.
The indictment charged in proper form the murder with malice by appellant, on March 15, 1971, of Tona Worthington in Taylor County. The trial was held in Eastland County on change of venue on October 11 to 26, 1971.
By his last ground of error appellant challenges the sufficiency of the evidence. The record contains 2002 pages. The evidence was circumstantial. The court charged on circumstantial evidence and on alibi. The defendant testified and denied the offense and sought to explain away the incriminating circumstances. He and his one other witness raised the issue of alibi.
Tona Worthington, a ten year old girl, disappeared from the Reagan Elementary School in Abilene after school on March 15, 1971. On the next day, about 3:00 P. M., her body was found stuffed in a culvert in the north part of Taylor County. She had been raped and strangled to death.
It is necessary to demonstrate the sufficiency of the evidence, which we now do by setting out the salient facts shown on the trial.
Creel customarily drove a red Volvo sedan covered with decals or flowers, and when seen always had his German Shepherd dog with him. The Volvo was registered in the name of Creel and his wife; the license plate number for 1970 being DGV 307 and for 1971 it was DLB 67.
Mrs. Bob Harris testified that she saw Creel near the Reagan Elementary School *816 on two occasions on March 15, 1971, in the red Volvo, with his dog. About 4:30 she saw him talking to Elizabeth Tomas and Cindy Mann, two pupils about Tona's age.
These two girls testified to seeing Creel on March 15, 1971, the day Tona disappeared, near the Reagan school, and he asked them questions about Tona, how old she was, how she dressed, where she lived. The school coach told about Tona having left to go home about 4:15 P.M. on the fatal day.
Charlotte Harris, a friend of Tona's, told about playing ball with her about 4:15, during which Tona gave her some bubble gum, and when she reached in the sack Tona had three "Snicker" bars. Tona walked west on Hartford Street toward her home.
Dorothy Faye Johnston testified she saw a small, red foreign automobile just east of the Reagan School on the afternoon of Tona's disappearance, with what appeared to be two people in it, which pulled up close to a young girl who was walking away from it. The witness stopped and the automobile drove away.
Ida Belle Coffee, a neighbor, said she saw Tona about half way between the school and her home on March 15, about 4:35 P.M.
J. C. Hinojosa, a sergeant at Dyess Air Force Base near Abilene, said he left the base for home about 5:00 P.M. on the 15th; that as he proceeded down the street near the Elm Creek bridge, across the same creek that runs between the Reagan School and the Worthington home and just north of the school, he observed a small, red foreign automobile parked facing north on a small dirt road which leads from a wooded area; that the automobile, to the best of his memory, was a Volvo; that the car was driven by a Caucasian male, and in the middle of the front seat he saw the head of a female child with her head bent slightly forward. The car then drove away at a high rate of speed. Hinojosa, being an artist, did a water color painting of what he saw, which was admitted in evidence as State's Exhibit No. 58.
Oscar Villalobos, Pedro Rocha and Bonifatio Valdez testified in substance that on Monday, March 15, 1971, they were on the Old Anson Road in the north part of Taylor County between 5:30 and 6:30 P.M. and saw a red foreign automobile being driven in an easterly direction, a white male driving with a dog on the passenger side. The driver had light hair and dark framed glasses, and the dog was a German Shepherd. The red car followed that of these witnesses and then they lost sight of it where another road intersected the road upon which they were traveling. This location was described by other witnesses as being about 1½ miles from the spot where Tona Worthington's body was found the next day.
Leonard Jefferson testified that on the same day, at about 6:15 P.M., he was driving with his wife and children on the Old Anson Road and a small, red foreign car, being driven by the appellant, whom he identified at the trial, passed him from the rear. He later came upon that same car parked and appellant had the hood of his car and the trunk lid raised. This location is just to the east of the spot, less than one mile, where the body of Tona Worthington was found the next day. Jefferson's wife corroborated his testimony.
Betty Ann Barnes, daughter of Jefferson and wife, testified that she was with her parents on this occasion; that she saw a German Shepherd dog in the car; that appellant was the man looking under the hood of the car, and that there was a girl's coat with big pockets and buttons on the front seat of the little red car, the door being open. She identified the coat of Tona Worthington which was admitted as State's Exhibit No. 63 as the coat she saw in appellant's car. This coat was found in the culvert where Tona Worthington's body was found, and was identified by her mother as being the coat Tona was wearing *817 when she disappeared on March 15, 1971.
There was testimony from the mother of Tona about her disappearance and their frantic search for her, and how on a previous day Creel's small red car had pulled into her driveway where Tona and her two sisters were playing, and how the car sped away when she went out.
Appellant denied to Sergeant Sanders, of the Abilene Police, that he had ever talked to Tona, but admitted talking to two small girls near the school. He also denied to Bill Davis that he had ever seen Tona, and when confronted by Elizabeth Tomas in Davis' presence, denied talking to her about Tona.
Leonard Dodgen of the Abilene Police testified as to the red Volvo automobile used by appellant, covered with decals or flowers; that he flashed his light into this car about 2:30 or 3:00 A.M. on the 16th of March and saw extremely fresh blood on the back seat and a bedspread there. He was present at the culvert where the body of Tona was found stuffed in a culvert, with a bundle of baling wire stuffed in the end of the culvert. He recovered a large quantity of animal hair and "haygrazer," a feeding substance, on the clothing and hair of the deceased child, and clothing worn by her, including the coat previously mentioned. The underside of appellant's vehicle was found to contain "haygrazer."
Dr. B. B. Trotter, a medical doctor and pathologist, performed the autopsy and attributed Tona's death to strangulation, but could not determine the type of instrument used. He described other injuries which caused a great deal of bleeding, but were not contributory to her death. He said the female parts of the child had been penetrated, and that vaginal smears and the tests thereof indicated that a male who had had a vasectomy had engaged in sexual intercourse with the child. He found partially digested food in the gastrointestinal tract, particularly corn and one peanut. Peanuts were shown to be a main ingredient of "Snicker" bars. State's Exhibit No. 126 was popcorn found in appellants' red Volvo. Dr. Trotter sent samples of the vaginal swabs to Dr. Ruth Guy, a member of the staff of Southwestern Medical School in Dallas, for testing.
Dr. Guy, who qualified as an expert, testified that she could determine the blood type of a person from vaginal smears, and that if the evidence showed the person from whom the swabs were taken was type "O" blood, then a person with type "A" blood had intercourse with her. The record shows that Tona Worthington was type "O" and appellant is type "A".
Col. Billy Gant, M.D., of the Dyess Air Force Base, testified that the medical records of appellant, who was a soldier there, showed that he had a vasectomy performed in 1964; that he was blood type "A"; and that a person upon whom a vasectomy had been performed could engage in sexual intercourse and would emit seminal fluids but would not emit sperm.
After Lt. W. T. (Bill) Davis, of the Abilene Police Department, was at the location where Tona's body was found on March 16, 1971, then he went to the Live Oak Trailer Park near Dyess Air Force Base, arriving about 5:10 P.M., and observed appellant drive up in a red Volvo sedan with flower and circle decals all over it. A photograph of the car was State's Exhibit No. 1, which showed the flower and circle decals. Lt. Davis then impounded the vehicle.
After a hearing in the absence of the jury, the court overruled objections and admitted in evidence items removed from the vehicle, photographs of the car and of appellant. Many other exhibits, numbering to a total of 135, were admitted in the record.
It was shown that Tona Worthington's coat had type "O" blood on it; that the bedspread taken from the rear seat of appellant's red Volvo had human blood on it which did not respond to testing procedures; *818 that type "O" human blood was on the coat and blouse worn by Tona; that type "O" human blood was on the trunk lid of appellant's Volvo and on his blue tool box found in the trunk of the car; that there were type "O" human blood stains on the floor mat from the rear seat area of the Volvo; and that the trunk mat of that car was missing and the floor was sticky and clean as though the mat had been recently removed.
Dog hair was found on the bedspread, on Tona's coat, skirt and blouse, and it was shown by the analysis of a competent expert to be similar in color and structurally identical to hair from appellant's German Shepherd dog which he had in the car with him, and dissimilar to the hair of the Worthington dog.
Handcuffs and a piece of a bicycle tire were also found in the Volvo automobile and were admitted.
Several girls and one eleven year old boy, some of whom positively identified appellant and all of whom described him and said he was driving a small, red foreign car covered with decals and flowers and had a German Shepherd dog, testified to efforts on his part to entice them into his car; to his saying to them, "Hey, Baby," and following them near nightfall. Some of them got his car number, which was the same shown to belong to the red Volvo registered to appellant.
We are not able within a reasonable compass to detail the entire evidence, but after reviewing the same hold it to be sufficient.
The first ground of error urged by appellant is that the search of the Volvo automobile belonging to appellant and the fruits thereof were in violation of his rights under the Fourth Amendment to the Constitution of the United States and Article I, Section 9, of the Constitution of Texas, Vernon's Ann.St.
In response to objections, the court held a hearing out of the presence of the jury. Lt. W. T. (Bill) Davis, of the Abilene Police Department, testified that about 5:10 P.M., after the body of the dead girl had been found, he went to the home of appellant just as he drove up in his Volvo, arrested him without warrant or search warrant, and searched the automobile, which resulted in the recovery of many items afterwards introduced in evidence.
The officer testified in explanation of his belief as to whether or not the circumstances permitted time in which to obtain a warrant:
"I knew in my own mind at that time that the District Attorney's office was closed and the Justice of the Peace office was closed, and I was afraid that any delay would cause the destruction of any or all of the evidence that might pertain to that automobile."
He further stated that in his opinion the vehicle was an instrumentality used in the commission of the crime.
Lt. Davis then related the information that he had which formed the basis for his belief that the appellant was responsible for the death of Tona Worthington. These were as follows: (a) an admission on the part of appellant that he had been in the vicinity where the small girl had last been seen alive; (b) that at such time he had his German Shepherd dog with him; (c) that when the body of Tona Worthington was found her clothing was covered with animal hair; (d) that the vehicle of appellant was observed to have what appeared to be fresh blood in the back seat on the night of the same day the young girl was reported missing; (e) the body of Tona Worthington was covered with blood: (f) that appellant, when confronted by a young girl witness, denied that they had previously talked about the deceased girl, when they had; (g) that the appellant had previously been charged with a similar *819 crime while stationed in Germany, involving an eleven year old girl.
The legal principles with which we are concerned are tersely stated in the following quotations:
"Probable cause for a search exists where the facts and circumstances within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentality of a crime or evidence pertaining to a crime." Brown v. State, Tex. Cr.App., 481 S.W.2d 106; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L.Ed. 543 (1923).
"* * * Assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants `where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought: (Citations Omitted).' Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
"* * * For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.
Additionally, appellant is not in a position to complain. He voluntarily took the witness stand and testified, without objection, concerning the evidentiary items found in his vehicle and attempted to explain them away. The fact of such admissions constitutes a waiver and renders it immaterial whether the search was made upon probable cause. Moulton v. State, Tex.Cr.App., 486 S.W.2d 334; Palmer v. State, 475 S.W.2d 797; Parker v. State, Tex.Cr.App., 384 S.W.2d 712; Brown v. State, Tex.Cr.App., 457 S.W.2d 917; Tsoi v. State, Tex.Cr.App., 489 S.W.2d 103; Jones v. State, Tex.Cr.App., 484 S.W.2d 745; Bradley v. State, Tex.Cr.App., 478 S.W.2d 527.
We hold that the search was not unreasonable, and overrule ground of error No. 1.
Under his second ground of error the appellant complains that the court erred in forcing him to trial in Eastland County and in not changing the venue.
The offense was alleged to have occurred in Taylor County, and venue was changed to Eastland County, and adjoining county. Much evidence was introduced in the Taylor County hearing of extensive publicity by newspapers, radio and television. The state did not contest the change of venue from Taylor County.
In Eastland County, appellant again sought to have venue changed, which the state contested and the court held a full hearing on July 15, 1971. The evidence in the Taylor County hearing was placed in the record, with additional evidence that the news media from Abilene had extensive coverage in Eastland County, and three defense witnesses who said that public opinion was such that in their opinion Creel could not have a fair trial there. The state called a number of witnesses who expressed the opinion that a fair and impartial jury could be obtained.
The court overruled the motion to change venue and the case went to trial on October 11, 1971, which resulted in a jury verdict of guilty on October 26, 1971, with punishment assessed by the jury at life.
The record contains the voir dire examination of the jurors. Eighty-eight jurors *820 were examined. Thirty-eight were challenged and excused for cause because of scruples against inflicting the death penalty, which was lawful at that time and was being asked for by the state. Three were challenged and excused because of pre-conceived opinion as to the guilt or innocence of the accused. All of the jurors except two had heard of the case. None of the jurors except those excused for cause were challenged for cause. The defense did not exhaust its peremptory challenges, and there was no showing in the record that any juror who served had formed an opinion as to appellant's guilt or innocence. All were accepted by appellant.
Newspaper publicity alone does not establish prejudice or require the change of venue. Jones v. State, 156 Tex. Cr.R. 248, 240 S.W.2d 771. Where appellant did not exhaust his peremptory challenges and did not show that he was forced to accept any objectionable juror, no error appears. Clemons v. State, Tex.Cr.App., 398 S.W.2d 563.
Appellant has not shown an abuse of discretion by the trial court in denying his motion to change venue. Ward v. State, Tex.Cr.App., 427 S.W.2d 876; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601; Turner v. State, Tex.Cr.App., 462 S.W.2d 9; McCutcheon v. State, Tex.Cr.App., 363 S.W.2d 457; Morris v. State, Tex.Cr.App. 488 S.W.2d 768.
We quote from Morris v. State, supra:
"In Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L.Ed.2d 751, Justice Clark, speaking for the Court, wrote that it is not required that jurors be totally ignorant of the facts and issues involved in this day of widespread and diverse methods of communication. He also noted that an important criminal case can be expected to arouse interest of the public in the vicinity and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.
"He further wrote that it is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
"In the present case there is no showing that publicity created a prejudice so great as to prevent a fair trial. It appears that the appellant was tried by jurors who had no opinion as to his guilt and that he received a fair trial.
"Our courts cannot and do not operate in a vacuum. Courts deal with people and crimes which are newsworthy. To require a trial of jurors who had never heard of a highly publicized crime would be impractical if not impossible. Certainly, it was never intended that jurors were to be selected from those who did not read newspapers or keep up with current events through other media. Jurors selected from such a group, if there are enough to be called a group, would not be representative. To hold otherwise would be to hold that the perpetrator of a very highly publicized crime such as the assassination of a president, a governor or any widely known person could never be tried."
We overrule appellant's contention that the trial court erred in not changing the venue from Eastland County.
Next, appellant contends that the parents of the deceased child were permitted to remain in the courtroom during voir dire examination of the prospective jurors.
The rule provided for in Article 36.03 Vernon's Ann.C.C.P. et seq., is for the purpose of preventing witnesses from hearing and being informed as to the testimony of other witnesses. The rule has no application to the exclusion of witnesses during voir dire of jurors and before any testimony on the trial has begun.
In this connection, appellant in his brief refers generally to harm from the presence of the parents, but does not point out or show when and in what particular appellant *821 suffered harm, for which reason he fails to show merit.
We overrule this contention.
The next contention of appellant is that the court erred in not keeping the jury together during this trial before the charge was read to the jury.
Article 35.23, V.A.C.C.P., provides, in part:
"When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury, after which the jury shall be kept together _ _ _."
Not only does the statute make it discretionary with the court as to such separation, but see also Smith v. State, Tex.Cr. App., 437 S.W.2d 835; Enriquez v. State, Tex.Cr.App., 429 S.W.2d 141; Sierra v. State, Tex.Cr.App., 476 S.W.2d 285.
The court during the trial frequently admonished the jury as to their conduct in not permitting anybody to talk to them about the case, nor to read or listen to anything about it from the news media. There is no showing in the record or claim in appellant's brief that they or any of them did so or that the failure of the court to sequester the jury resulted in harm to appellant.
No harm being shown, we hold that the court did not abuse its discretion in failing to sequester the jury throughout the trial.
Next, the appellant asserts that the court erred in excluding from the jury those veniremen who stated they could not inflict the death penalty for crime.
Reliance is had upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776, but this is misplaced because the jury rejected the death penalty and assessed the punishment at life imprisonment. This being so, Witherspoon error is not available to him. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Ex Parte Powers, Tex.Cr.App., 487 S.W.2d 101.
Appellant's next contention is that the trial court erred in permitting the state to corroborate and bolster the testimony of its witnesses Leonard Jefferson and Betty Anne Barnes.
We cannot tell from appellant's brief what ruling of the court with reference to what testimony this contention is based upon. We consider that this matter is not presented to us in the manner contemplated by Article 40.09, Sec. 9, V.A.C.C.P., and that justice does not require us to search the record in an attempt to discover the error or errors intended by appellant to be complained of.
Appellant contends that the court erred in admitting a drawing by witness Hinojosa as State's Exhibit No. 58.
The witness testified that he passed a red foreign make car he took to be a Volvo, with a man in it with glasses on, and saw part of the head of what he took to be a female child, and the car had a white spot on it that focused his attention. The photograph of appellant's Volvo had such a large spot. This was in a wooded area between the school and Tona's home, near a bridge across the creek, shortly after 5 P. M. on March 15, 1971.
The witness was an artist, and some time later made a water color drawing of his recollection and impressions, which was admitted as State's Exhibit No. 58. While the witness admitted that all of his impressions as shown in the drawing were not accurate, we see no reason why a witness cannot express himself in this manner as well as by words and objections went more to the weight of the evidence than to its admissibility. The details admitted to be inaccurate were of minor importance. The drawing, in its essential facts, corresponded to the picture painted by words in his testimony. We hold this evidence to be admissible. Martin v. State, Tex.Cr.App., *822 475 S.W.2d 265; Terry v. State, Tex.Cr. App., 491 S.W.2d 161.
We find no reversible error and the judgment is affirmed.
Opinion approved by the Court.
ODOM, Judge (concurring).
I agree that ground of error No. 1 (concerning the search of the automobile) was correctly disposed of but only for the reason, as stated in the majority opinion, that the appellant "... voluntarily took the witness stand and testified, without objection, concerning the evidentiary items found in his vehicle and attempted to explain them away. The fact of such admissions constitutes a waiver and renders it immaterial whether the search was made upon probable cause."
ROBERTS, J., joins in this opinion.
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398 S.E.2d 672 (1990)
101 N.C. App. 225
STATE of North Carolina
v.
Clarence MEBANE.
No. 9015SC172.
Court of Appeals of North Carolina.
December 18, 1990.
*673 Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. Patricia F. Padgett, Raleigh, for the State.
Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender M. Patricia DeVine, Raleigh, for defendant-appellant.
LEWIS, Judge.
The first question on appeal is whether the defendant's conviction and sentencing under the North Carolina Controlled Substances Act by the trial court violated the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and in the North Carolina Constitution, article I § 19. The second question on appeal is whether the trial court erred in ordering the forfeiture of the defendant's vehicle pursuant to the Act.
The defendant was convicted and punished for committing the following crimes on 20 January 1989 in one drug related transaction:
1) felonious possession of cocaine under N.C.G.S. § 90-95(a)(3);
2) possession with intent to sell or deliver cocaine under N.C.G.S. § 90-95(a)(1);
3) sale and delivery of cocaine under N.C. G.S. § 90-95(a)(1);
4) conspiracy to sell or deliver cocaine under North Carolina common law; and
5) maintaining of vehicle (Chevrolet Corvette) under N.C.G.S. § 90-108(a)(7).
The defendant was convicted and punished for committing the following crimes on 3 February 1989 in one drug related transaction:
1) felonious possession of cocaine under N.C.G.S. § 90-95(a)(3);
2) possession with intent to sell or deliver cocaine under N.C.G.S. § 90-95(a)(1);
3) sale and delivery of cocaine under N.C. G.S. § 90-95(a)(1); and
4) conspiracy to sell or deliver cocaine under North Carolina Common Law.
The defendant was convicted and punished for committing the following crimes on 17 February 1989 in one drug related transaction:
1) felonious possession of cocaine under N.C.G.S. § 90-95(a)(3);
2) possession with intent to sell or deliver cocaine under N.C.G.S. § 90-95(a)(1);
3) maintaining of vehicle (Nissan Maxima) under N.C.G.S. § 90-108(a)(7);
4) conspiracy to traffic in cocaine under North Carolina common law;
*674 5) trafficking in cocaine by possession under N.C.G.S. § 90-95(h)(3); and
6) sale and delivery of cocaine under N.C. G.S. § 90-95(a)(1).
The trial judge consolidated the cases for judgment and sentenced the defendant to fifteen years imprisonment. The trial judge also ordered that the defendant forfeit the Chevrolet Corvette allegedly involved in the cocaine transaction of 20 January 1989.
Double Jeopardy
"The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986) (citations omitted). Here we are concerned with multiple punishments for the same offense.
The defendant was convicted of possession with intent to sell or deliver a controlled substance and possessing a controlled substance under N.C.G.S. § 90-95(a)(1) and N.C.G.S. § 90-95(a)(3) on three separate occasions. The defendant committed one transaction relating to the two convictions on each of the days in question. The defendant argues that principles of double jeopardy bar the defendant's conviction and punishment for both offenses on each of the days in question. We agree.
Although possession of one gram or more of cocaine is not a lesser included offense of possession of cocaine with intent to sell or deliver, the North Carolina Supreme Court has held and this Court has recently reiterated that double jeopardy principles bar punishment for both offenses for possession of the same cocaine. State v. McGill, 296 N.C. 564, 568, 251 S.E.2d 616, 619 (1979); State v. Williams, 98 N.C. App. 405, 407, 390 S.E.2d 729, 730 (1990). Unless and until the Supreme Court overrules these decisions, we are bound by their holdings.
The trial judge should have instructed the jury to first consider the offense of possession with intent to sell and deliver cocaine; if, and only if, the jury found him not guilty of that offense were they to consider the offense of possession of cocaine. McGill, 296 N.C. at 569, 251 S.E.2d at 620. Therefore, we arrest judgment on the three charges of possession of cocaine. With respect to this issue, we find no error in the three convictions on possession with intent to sell and deliver.
The defendant also contends that principles of double jeopardy bar defendant's punishment for possession with intent to sell and deliver cocaine under N.C.G.S. § 90-95(a)(1), and trafficking in the same cocaine by possession under N.C.G.S. § 90-95(h)(3). The defendant argues that possession with intent to sell and deliver cocaine is a lesser included offense of trafficking in cocaine by possession.
In State v. Sanderson, 60 N.C.App. 604, 610, 300 S.E.2d 9, 14, disc. rev. denied, 308 N.C. 679, 304 S.E.2d 759 (1983), the North Carolina Court of Appeals held that possession of marijuana with intent to sell is a lesser included offense of trafficking by possessing one hundred pounds of marijuana. The court did not expressly review the elements of each offense involved and thus, did not explain its conclusion. However, the court did apply the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) to determine whether the offenses are not the "same offense" within the meaning of the double jeopardy clause. The Blockburger test is: "whether each provision requires proof of an additional fact which the other does not." Id. Applying the Blockburger test, the court held in Sanderson that "possession under G.S. 90-95(a) does not require proof of any additional facts beyond those required under G.S. 90-95(h)(1), therefore convictions under both statutes violate defendants' protection against double jeopardy, and the convictions for the lesser included offenses should be vacated." State v. Sanderson, 60 N.C.App. 604, 610, 300 S.E.2d 9, 14, disc. rev. denied, 308 N.C. 679, 304 S.E.2d 759 (1983).
*675 After State v. Sanderson, the North Carolina Supreme Court held in State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986), that "[i]n single prosecution situations, the presumption raised by the Blockburger test is only a federal rule for determining legislative intent as to violations of federal criminal laws and is neither binding on state courts nor conclusive." Id. 315 N.C. at 455, 340 S.E.2d at 709. Likewise, "where a legislature clearly expresses its intent to proscribe and punish exactly the same conduct under two separate statutes, a trial court in a single trial may impose cumulative punishments under the statutes." Id. at 453, 340 S.E.2d at 708 (quoting Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). Thus, the Blockburger test is not considered determinative of whether the defendant's rights not to be put in double jeopardy have been violated. Instead, we must address the legislature's intent.
To prove the offense of possession with intent to sell and deliver cocaine, the State must show: 1) possession of cocaine and 2) that the person intended to sell or deliver it. State v. McGill, 296 N.C. 564, 568, 251 S.E.2d 616, 619 (1979). To prove the offense of trafficking in cocaine by possession the State must show: 1) possession of cocaine and 2) that the amount possessed was 28 grams or more. However, the purpose behind N.C.G.S. § 90-95(h), which deters the statutorily defined "trafficking", is to prevent large scale distribution of controlled substances. State v. Tyndall, 55 N.C.App. 57, 60-61, 284 S.E.2d 575, 577 (1981). "Our legislature has determined that certain amounts of controlled substances and certain amounts of mixtures containing controlled substances indicate an intent to distribute on a large scale." Id. Although the offense of trafficking under N.C.G.S. § 90-95(h) does not specifically require that the State prove that the person intended to sell or deliver the controlled substance, such intent is implied from the large amount of controlled substance possessed. This is most likely the reason why the Court of Appeals in Sanderson found the two convictions and punishments in violation of the double jeopardy clause when Blockburger was considered controlling. Without such rationale, a double jeopardy question may not have arisen. See State v. Swann, 322 N.C. 666, 678, 370 S.E.2d 533, 540 (1988) (citing State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987)).
Although we are mindful of Gardner, we are bound to follow the North Carolina Supreme Court's reasoning in McGill, and the recent cases that comply with its holding that the defendant not be punished for such closely related offenses. See State v. McGill, supra; State v. Williams, 98 N.C. App. 405, 407, 390 S.E.2d 729, 730 (1990). The only difference between this case and McGill is the amount of the controlled substance in the defendant's possession: in McGill, the offense was possession of more than one ounce of marijuana; and here, the offense is possession of 28 grams or more of cocaine ("trafficking").
Moreover, we hold that the legislature did not intend that cumulative punishments be imposed for possession with intent to sell and deliver cocaine and trafficking in the same cocaine by possession at the same time. "The traditional means of determining the intent of the legislature where the concern is only one of multiple punishments for two convictions in the same trial include the examination of the subject, language, and history of the statutes." State v. Gardner, 315 N.C. 444, 461, 340 S.E.2d 701, 712 (1986).
Legislative history reveals that the legislature intended the trafficking statute to prevent large scale distribution of controlled substances. State v. Tyndall, 55 N.C.App. 57, 60-61, 284 S.E.2d 575, 577 (1981). On its face, it is apparent that the statute forbidding possession with intent to sell and deliver cocaine was also passed to prevent distribution of cocaine. The only difference is the amount of cocaine distributed. Thus, regardless of whether the two statutes proscribe the same conduct under the Blockburger test, the legislature did not intend that a defendant be punished for both of the statutory crimes in issue. We arrest judgment on the charge of possession with intent to sell and deliver on 17 February 1989. The conviction and punishment *676 for trafficking by possession of cocaine is without error.
Forfeiture of the Vehicle
The defendant's last contention is that the trial court erred in ordering the forfeiture of the defendant's Corvette. The defendant argues that if he is found not guilty of N.C.G.S. § 90-108(a)(7), the forfeiture of a vehicle under N.C.G.S. § 90-112 is prohibited. N.C.G.S. § 90-108 provides in pertinent part:
(a) It shall be unlawful for any person:
...
(7) To knowingly keep or maintain any... vehicle ..., which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article.
(b) Any person who violates this section shall be guilty of a misdemeanor. Provided, that if the criminal pleading alleges that the violation was committed intentionally, and upon trial it is specifically found that the violation was committed intentionally, such violations shall be a Class I felony.
N.C.G.S. § 90-112 provides in pertinent part:
The following shall be subject to forfeiture:
. . . . .
(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of the provisions of this Article;
(2) All money ... acquired, used, or intended for use, in selling, ... delivering,... a controlled substance in violation of this Article ...
(4) All conveyances, including vehicles,... which are used or intended for use to unlawfully conceal, convey, or transport, or in any manner facilitate the unlawful concealment, conveyance, or transportation of property described in (1) or (2) except that ...
c. No conveyance shall be forfeited unless the violation involved is a felony under this Article....
In State v. Bright, 78 N.C.App. 239, 337 S.E.2d 87 (1985), disc. rev. denied, 315 N.C. 591, 341 S.E.2d 31 (1986), this Court interpreted N.C.G.S. §§ 90-108(a)(7) and 90-108(b) to mean that if a defendant is found to have "knowledge that [the vehicle] is resorted to by persons for the use, keeping or selling of controlled substances" that the defendant is guilty of a misdemeanor; however, if the defendant is found to have "intent that it be so used" the defendant shall be guilty of a class I felony. Id. 78 N.C.App. at 242, 337 S.E.2d at 89. Here, the defendant was found guilty of a misdemeanor under N.C.G.S. § 90-108.
The primary question is whether the word "felony" in N.C.G.S. § 90-112(a)(4)c. is a reference to 1) only a felony involving the violation of using the vehicle, or 2) a felony involving violations in which the vehicle was used. The defendant in this case was found guilty of felonies in which the vehicle was used. However, the defendant claims that because he was only found guilty of a misdemeanor involving the violation of using the vehicle, that N.C.G.S. § 90-112(a)(4)c. does not allow forfeiture of the Corvette.
The intent of the legislature controls the interpretation of a statute. State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 294 (1975). The legislative history of the statute demonstrates that the intent of the legislature was to expand the situations in which a vehicle could be forfeited. Originally, N.C. G.S. § 90-112(a)(4)c only allowed forfeiture if the defendant violated 90-95(a)(1) or 90-95(a)(2). N.C.G.S. § 90-112(a)(4)c (Supp. 1971). The change in the statute was called "AN ACT TO PERMIT FORFEITURE OF CONVEYANCES UNDER ADDITIONAL CIRCUMSTANCES." (1973 N.C.Sess. Laws ch. 447). As the language indicates, the legislature intended to expand the statute to cover all felonies under the Act in which a vehicle was used. Thus, we find no error in the forfeiture of the defendant's Corvette.
Conclusion
As the convictions of possession of cocaine and the conviction of possession of cocaine with the intent to sell and deliver *677 cocaine on 17 February 1989 may have influenced the trial judge's sentence after consolidation of the cases for judgment under N.C.G.S. § 15A-1340.4(b), we remand the case for resentencing.
89 CrS 6298 possession of cocainearrested;
89 CrS 6298 possession with intent to sell or deliver cocaineNo Error;
89 CrS 6300 knowingly maintaining a vehicle for purpose of unlawfully keeping or selling controlled substancesforfeiture No Error;
89 CrS 6301 possession of cocainearrested;
89 CrS 6301 possession with intent to sell or deliver cocaineNo Error;
89 CrS 6304 possession of cocainearrested;
89 CrS 6304 possession with intent to sell or deliver cocainearrested;
89 CrS 6305 trafficking in cocaine by possessionNo Error.
Remand for Resentencing.
HEDRICK, C.J., and DUNCAN, J., concur.
DUNCAN, J., concurred in this opinion prior to 30 November 1990.
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831 F.2d 303
U.S.v.Bell (Paul E. Jr.)
NO. 86-1259
United States Court of Appeals,Ninth Circuit.
OCT 19, 1987
1
Appeal From: E.D.Cal.
2
AFFIRMED.
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In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1674
SHAUN J. MATZ,
Plaintiff-Appellant,
v.
RODNEY KLOTKA, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:08 CV 00494— Rudolph T. Randa, Judge.
ARGUED SEPTEMBER 9, 2013 — DECIDED OCTOBER 6, 2014
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Shaun J. Matz brought this action
under 42 U.S.C. § 1983 against a number of current and former
Milwaukee Police Department officers. He claims that in
September 2003 the officers violated his Fourth and Fifth
Amendment rights by arresting him without reasonable
suspicion or probable cause, failing to make a prompt probable
cause determination once he was under arrest, and continuing
2 No. 12-1674
to question him after he invoked his right to remain silent. The
district court granted summary judgment to the defendants,
and Matz appeals. We affirm the grant of summary judgment
in favor of the defendants on Matz’s § 1983 claims.
I.
Because we are reviewing the district court’s grant of
summary judgment against Matz, we recount the facts in the
light most favorable to him, noting discrepancies in the parties’
version of events where relevant. See Zepperi-Lomanto v. Am.
Postal Workers Union, 751 F.3d 482, 483 (7th Cir. 2014). On the
evening of September 16, 2003, Matz and several other individ-
uals were on the porch of an apartment located at 1335 South
Layton Boulevard in Milwaukee, Wisconsin. That same
evening two Milwaukee police officers then assigned to the
warrant squad, defendants Rodney Klotka and Karl Zuberbier,
were driving through the area on an unrelated matter. Klotka
and Zuberbier were both in uniform and were driving an
unmarked squad car. As they drove down Layton Boulevard,
Zuberbier, who was the passenger, saw an individual named
Javier Salazar standing with the others on the porch. Zuberbier
recognized Salazar from a warrant squad briefing as a member
of the Latin Kings gang who he believed was wanted for
armed robbery. Specifically, Zuberbier thought there was a
“temporary felony want” for Salazar, who Zuberbier believed
was also a suspect in two homicides and several shootings.
Zuberbier pointed out Salazar to Klotka, who looked over at
the individuals on the porch.
By the time Klotka was able to make a U-turn and approach
the apartment, everyone on the porch was leaving. Matz
No. 12-1674 3
admits having seen the police, but claims that he had already
left the porch when their car turned around. He acknowledges
having heard someone say “detects” as he was leaving the
porch. When Klotka pulled up to the curb, Zuberbier jumped
out and ran along the south side of the house where several of
the individuals had headed. Klotka followed shortly behind
him. As Zuberbier ran into the alley he saw three people
starting to run southbound down the alley and two more
people in a car starting to drive away. As he ran towards the
car, he drew his gun and pointed it at the vehicle while
shouting, “Police! Stop!” Matz says that Zuberbier also
threatened to blow his “fucking head off” if he did not stop.
Klotka, who by that point also had his gun drawn, arrived
right behind Zuberbier and ordered Matz and the vehicle
occupants to get out and keep their hands visible.1 Although
the parties differ as to the precise order of the events that
happened next, it is clear that the following occurred within a
short period of time after the stop: (1) Matz was handcuffed
and put into a patrol car; (2) it came to light that the car he was
driving was stolen; and (3) other officers (at least six squads
total) arrived at the scene in response to a call for backup.
Klotka then briefly left the scene to ascertain if anyone else
from the porch was still in the vicinity. And although there is
conflicting testimony as to which officer arrested Salazar, it is
1
Although it is immaterial to Matz’s claim, there is a dispute about the
order in which the officers arrived on the scene and who directed Matz out
of the vehicle. Klotka recalls arriving first, pointing his gun, and ordering
the car to stop, but Matz recalls that it was Zuberbier who first arrived and
gave the command to stop. Klotka also recalls that another officer removed
Matz from the vehicle while he left the scene to search for the others.
4 No. 12-1674
undisputed that he was arrested shortly thereafter inside the
residence.
According to Matz, while he was in the patrol van Michael
Caballero, a detective in the homicide division, grabbed his left
arm and stated, “he’s one of them” when he saw Matz’s
tattoos. Matz also alleges that Caballero questioned him about
two homicides and continued to do so after Matz said he did
not want to talk about it and wanted an attorney. Matz was
then taken to the city jail, where he was booked and given a
cell. The next morning two more homicide detectives, Shannon
Jones and Percy Moore, interviewed Matz about the homicides
and an armed robbery. Matz claims that although he told Jones
and Moore from the outset that he did not wish to speak to
them about the homicides and wanted to go back to his cell,
they continued questioning him for over three hours. Later that
same evening, Caballero and another defendant, Detective
Mark Walton, again interrogated Matz in the face of his
insistence that he did not want to talk. Matz says Walton
acknowledged Matz’s rights but insisted that he give them a
statement anyway. After several hours of questioning, Matz,
who was sitting in a “defeated” position, provided a statement
admitting his involvement in the homicides. Throughout this
period Matz was never provided with various medications he
had been taking for psychosis and depression (Olanzapine,
Prozac, Klonopin, and Neurontin). He alleges that being
without his medication impaired his thought process, affected
his impulsivity, and caused him to make poor decisions. He
was also at this time still recovering from pneumonia, for
which he had been hospitalized until two days before his arrest
on September 16. He later recanted his inculpatory statement
No. 12-1674 5
and named Salazar as the shooter, although he admitted being
present. He said he confessed because he believed it was the
only way he could return to his cell. Despite recanting his
statement, Matz pleaded guilty to one count of first-degree
reckless homicide and one count of felony murder with
robbery as the underlying crime. The Milwaukee County
Circuit Court sentenced him to a total of sixty years imprison-
ment and forty-five years extended supervision between the
two counts.
Matz was not presented for an initial in person appearance
before a court commissioner until seven days after his arrest.
To support their claim that Matz received an adequate proba-
ble cause determination, the defendants submitted an “arrest-
detention report” signed by a Milwaukee County Court
Commissioner at 10:58 a.m. on September 18, 2003—less than
two days after his initial arrest. The report reflects Commis-
sioner Liska’s determination that probable cause existed to
believe that Matz committed a crime and her decision setting
cash bail at $100,000.00.
Matz initiated this suit under § 1983 in 2010, alleging that
Klotka, Zuberbier, Jones, Moore, Walton, and Caballero
violated his Fourth and Fifth Amendment rights. The district
court appointed counsel, who filed a second amended com-
plaint and added an additional Fifth Amendment claim against
certain defendants. Ultimately the district court granted
summary judgment in favor of the defendants on all of Matz’s
claims. The court concluded that Matz had failed to establish
that his Fourth Amendment rights were violated because
Klotka and Zuberbier had reasonable suspicion to detain Matz
when he attempted to leave the scene and that no reasonable
6 No. 12-1674
factfinder would conclude that the officers lacked probable
cause for his subsequent arrest. Relying on the arrest-detention
report submitted by the defendants, the district court also
concluded that it was undisputed that Matz had received a
timely probable cause determination. Finally, the district court
rejected Matz’s Fifth Amendment claim based on his allegedly
coerced confession, concluding that because both his convic-
tion and sentence depended in part on the confession, Matz’s
challenge was barred by Heck v. Humphrey, 512 U.S. 477, 487
(1994).
II.
We review the district court’s grant of summary judgment
de novo. Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
e.g., Hawkins v. Mitchell, 756 F.3d 983, 990-91 (7th Cir. 2014). We
construe the evidence in the light most favorable to Matz as the
non-moving party, and draw all reasonable inferences from the
evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Miller v. Gonzalez, ---- F.3d ----- 2014, 2014 WL
3824318, at *4.
A. Reasonable Suspicion for a Terry Stop
The Fourth Amendment protects individuals “against
unreasonable searches and seizures.” U.S. Const. amend. IV.
Ordinarily seizures are “reasonable” only when supported by
probable cause to believe an individual has committed a crime.
See, e.g., Dunaway v. New York, 442 U.S. 200, 213 (1979); Bailey
v. United States, 133 S. Ct. 1031, 1037 (2013). The longstanding
exception to this rule arises under Terry v. Ohio, 392 U.S. 1
No. 12-1674 7
(1968), which authorizes brief investigatory detentions based
on the less demanding standard of reasonable suspicion that
criminal activity is afoot, id. at 21-22; United States v. Baskin,
401 F.3d 788, 791 (7th Cir. 2005). Such a brief detention is
permitted when it demands only a limited intrusion into an
individual’s privacy and rests on “specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry, 392 U.S. at 21.
Determining whether such an investigatory detention is
constitutional requires balancing the governmental interest in
the seizure against the degree to which it intrudes on an
individual’s personal liberty. See id. at 20-21. And although
reasonable suspicion is a less demanding standard than
probable cause, such a stop requires at least a minimal level of
objective justification and the officer must be able to articulate
more than an “inchoate and unparticularized suspicion or
‘hunch’” of criminal activity. Id. at 27; see also Ill. v. Wardlow,
528 U.S. 119, 123-24 (2000). Ultimately, determining whether
reasonable suspicion exists is not an exact science, and “must
be based on commonsense judgments and inferences about
human behavior.” Wardlow, 528 U.S. at 125.
Although Matz insists that Officers Klotka and Zuberbier
have demonstrated nothing beyond an unparticularized hunch
to support their decision to stop his car, the record establishes
otherwise. The officers both saw and recognized Salazar from
their warrant squad briefings, where he was identified as a
member of the Latin Kings gang wanted in connection with an
armed robbery. Zuberbier had also been told that Salazar was
a suspect in several homicides. And by the time the officers
were able to make a U-turn and approach the building in an
8 No. 12-1674
attempt to speak with Salazar, every individual on the porch
was leaving the scene.2 During the chase that ensued, officers
had no way of knowing where exactly Salazar had gone and
could reasonably have believed he was hidden in the car with
Matz and other individuals from the porch.
In the face of this evidence, Matz insists that neither his
proximity to Salazar on the porch nor his flight from officers,
standing alone, would establish reasonable suspicion to
support a Terry stop. Matz’s assertion is correct as far as it goes.
We have recognized that simply being in the presence of others
who are themselves suspected of criminal activity is insuffi-
cient standing alone to establish particularized suspicion for a
Terry stop and frisk. See Ybarra v. Ill., 444 U.S. 85, 91 (1979)
(“[A] person’s mere propinquity to others independently
suspected of criminal activity does not, without more, give rise
to probable cause to search that person.”) (emphasis added).
Likewise, we have acknowledged that suspicion of illegal
activity at a particular location does not transfer such a
suspicion to an individual leaving the property. See United
States v. Bohman, 683 F.3d 861, 864 (7th Cir. 2012). Neither does
the act of choosing to avoid a police encounter—either by
refusing to cooperate or leaving the scene—by itself create
2
Matz submitted a declaration in the district court in which he maintained
that he “did not run from the porch area.” But he has not disputed the
accounts of both Klotka and Zuberbier that by the time they exited their
vehicles all occupants of the porch had left and were moving quickly
enough that it was necessary for the officers to give chase in order to speak
with anyone from the porch.
No. 12-1674 9
sufficient objective justification for a seizure or detention. See,
e.g., Fl. v. Bostick, 501 U.S. 429, 437 (1991).
But it is axiomatic that in determining whether officers had
the requisite particularized suspicion for a Terry stop, we do
not consider in isolation each variable of the equation that may
add up to reasonable suspicion. See, e.g., United States v.
Johnson, 170 F.3d 708, 714 (1999) (“Applying the Terry standard,
we have consistently held that reasonable suspicion is to be
determined in light of the totality of the circumstances.”).
Instead, we consider the sum of all of the information known
to officers at the time of the stop. Terry, 392 U.S. at 22-23;
United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003). And
this includes behavior that may in other circumstances be
considered innocent; in other words, context matters. Baskin,
401 F.3d at 793 (“[B]ehavior which is susceptible to an innocent
explanation when isolated from its context may still give rise
to a reasonable suspicion when considered in light of all the
factors at play.”); United States v. Fiasche, 520 F.3d 694, 697-98
(7th Cir. 2008).
First, it is undisputed that the officers had particularized
suspicion as to Salazar connecting him to armed robbery and
multiple homicides. Given that Salazar and Matz were together
on the porch, they also had a basis from which to conclude that
Salazar may have fled in the same car as Matz and the other
individual visible to them in the car. Although Salazar was not
visible to the officers from their vantage point outside the car,
he could have been hidden in the car to avoid detection and
capture. In fact, it is unlikely that a person police believed to be
wanted for armed robbery and possibly multiple homicides,
10 No. 12-1674
who had run from law enforcement, would remain in plain
view as officers approached the car rather than hide in some
way. Given that both Salazar and Matz were together on the
porch and both exited the area simultaneously, the officers had
an objectively reasonable basis to believe that Salazar could be
in the vehicle with Matz, and therefore had an objectively
reasonable basis to stop the vehicle and briefly detain the
occupants while they ascertained whether Salazar was with
him or whether they were complicit in helping him evade law
enforcement. And it does not matter whether that was their
actual motivation for stopping the vehicle, because the test
under the Fourth Amendment is whether the seizure was
objectively reasonable. E.g., Whren v. United States, 517 U.S. 806,
813-14 (1996).
In sum, the officers possessed particularized and specific
suspicion as to Salazar, a known gang member suspected of
committing violent crimes. Their attempt to approach Salazar
was met with the precipitous departure of the entire group,
including Matz. In their justifiable attempt to apprehend
Salazar, Klotka and Zuberbier gave chase to everyone scatter-
ing from the porch. They were outnumbered as they ap-
proached a moving vehicle that they reasonably could have
believed contained Salazar, who was suspected of committing
violent crimes and who could very well have been armed.
Given these circumstances, it was reasonable for them to
conduct further investigation, including stopping the vehicle
leaving the scene and detaining the occupants so they could
assess the situation. See United States v. Howard, 729 F.3d 655,
659 (7th Cir. 2013) (collecting cases and noting that the Su-
preme Court “has recognized limited situations at the scene of
No. 12-1674 11
police activity in which it may be reasonable for police to
detain people not suspected of criminal activity themselves, so
long as the additional intrusion on individual liberty is
marginal and is outweighed by the governmental interest in
conducting legitimate police activities safely and free from
interference”); cf. Wardlow, 528 U.S. at 125 (recognizing that
when officers confront behavior susceptible of two potential
explanations, one innocent and one potentially criminal, they
are entitled to “detain the individuals to resolve the ambigu-
ity”).
B. Probable Cause for Arrest
So Officers Klotka and Zuberbier had (narrowly) enough
reasonable suspicion to briefly detain Matz as they attempted
to get the situation under control and ascertain where Salazar
had gone. But Matz argues that what they actually did was
more akin to a full-blown arrest than the limited detention
permitted under Terry. And although eventually the officers
learned that Matz was driving a stolen vehicle, he maintains
that functionally, he was under arrest before the officers had
probable cause. In assessing the reasonableness of an investiga-
tory stop, we first consider whether the detention was justified
from the outset and then ask “whether it was reasonably
related in scope to the circumstances which justified the
interference in the first place.” Terry, 392 U.S. at 20; see also
Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013); Jewett v. Anders,
521 F.3d 818, 824 (7th Cir. 2008). A Terry stop may be trans-
formed into a formal arrest requiring probable cause if an
officer’s use of force is sufficiently disproportionate to the
purpose of the stop—which may include ensuring the safety of
12 No. 12-1674
the officers or others—in light of the surrounding circum-
stances. Rabin, 725 F.3d at 632-33; Jewett, 521 F.3d 824-25. It may
also become a de facto arrest if the detention continues longer
than necessary to accomplish the purpose of the stop or
becomes “unreasonably intrusive.” See United States v. Bullock,
632 F.3d 1004, 1015 (7th Cir. 2011). The investigation following
a Terry stop “‘must be reasonably related in scope and duration
to the circumstances that justified the stop in the first instance
so that it is a minimal intrusion on the individual’s Fourth
Amendment interests.’” Id. (quoting United States v. Robinson,
30 F.3d 774, 784 (7th Cir. 1994)).
Although the issue is again close, we conclude that given
the circumstances it was reasonable for the officers to draw a
weapon and even handcuff Matz while they controlled the
situation and accounted for the individuals from the front
porch. At the outset, we note that only a short period of time
elapsed between when the officers first detained Matz and
when they learned that he was driving a stolen vehicle.
According to Matz, Zuberbier ran the VIN for the vehicle and
discovered it was stolen sometime before the backup officers
arrived at the scene. And although neither side has presented
a specific time line, even a generous reading of the facts
supports the conclusion that not much time could have elapsed
between the time Matz was ordered out of the car and the
moment Zuberbier (or another officer)3 learned the car was
3
Under the officers’ version of events, Matz was placed in a police vehicle
while they tracked down the other individuals from the porch and one of
the backup officers who had arrived on the scene discovered that the car
(continued...)
No. 12-1674 13
stolen, thus providing probable cause for an arrest. This
sequence of events makes it clear that police were diligently
investigating to confirm or dispel their suspicions about the
occupants of the vehicle. See Rabin, 725 F.3d at 634 (upholding
detention of individual for approximately an hour and a half
while officers verified legitimacy of his firearm license and
noting that evidence suggested officers had diligently pursued
likely avenue to resolve their suspicions); United States v.
Adamson, 441 F.3d 513, 520 (7th Cir. 2006) (“There is no bright-
line rule as to how long an investigative detention may last;
instead we look to whether the police diligently pursued a
means of investigating that was likely to confirm or dispel
quickly their suspicions.”). So the duration of the stop is
unproblematic given that officers diligently pursued informa-
tion that, as it turned out, revealed in short order evidence that
gave them probable cause for a full-blown arrest.
We are thus left with the question whether Matz has
created a triable issue of fact as to whether the manner in
which the officers effectuated the detention—pointing guns at
Matz while ordering him to stop or risk having his “fucking
head” blown off, frisking, handcuffing, and placing him in a
patrol car—was reasonably related in scope to the circum-
stances which initially justified the interference. Terry, 392 U.S.
at 20. The use of a firearm and handcuffs undoubtedly puts
Matz’s encounter at the outer edge of a permissible Terry stop.
3
(...continued)
was stolen. The precise chronology is immaterial given our conclusion that
under either version, officers were diligently pursuing information to
resolve their suspicions.
14 No. 12-1674
As we have previously recognized, “‘[s]ubtle, and perhaps
tenuous distinctions exist between a Terry stop, a Terry stop
rapidly evolving into an arrest and a de facto arrest.’” Bullock,
632 F.3d at 1016 (internal quotations and citation omitted).
These tenuous distinctions are at the heart of Matz’s claim: he
asserts that Zuberbier and Klotka made a de facto arrest
without probable cause, and the officers argue, in essence, that
a legitimate Terry stop evolved rapidly into an arrest sup-
ported by probable cause. The officers argue alternatively that
qualified immunity protects them from liability because under
the circumstances it would not have been clear to a reasonable
officer that using force and handcuffs to detain Matz violated
clearly established law. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (setting forth well-known qualified immunity test
that government officials are protected from civil damages as
long as conduct does not violate clearly established constitu-
tional rights of which a reasonable person would have known);
Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011) (entitlement to
qualified immunity turns on whether facts describe the
violation of a clearly established constitutional right).
Although the hallmarks of formal arrest such as applying
handcuffs, drawing weapons, and placing suspects in police
vehicles should not be the norm during an investigatory
detention, all of those measures have been recognized as
appropriate in certain circumstances. See Bullock, 632 F.3d at
1016 (collecting cases); Tilmon, 19 F.3d at 1224-25 (noting “for
better or for worse” the trend of expanding Terry stops to
include “the permitting of the use of handcuffs, the placing of
suspects in police cruisers, the drawing of weapons, and other
measures of force more traditionally associated with arrest
No. 12-1674 15
than with investigatory detention”); United States v. Weaver,
8 F.3d 1240, 1244 (7th Cir. 1993) (measured use of appropriate
force does not convert seizure into arrest). In evaluating
whether the force used converted an encounter into a full
arrest, we must consider whether the surrounding circum-
stances would support an officer’s legitimate fear for personal
safety. See Jewett, 521 F.3d at 824. We must also take into
account the suspect’s own behavior in resisting an officer’s
efforts. Id at 825. (citing United States v. Lawshea, 461 F.3d 857,
860 (7th Cir. 2006)).
First, the officers were undoubtedly confronting a situation
where they may have legitimately believed drawing weapons
was necessary to protect themselves. They were pursuing an
individual suspected of having committed armed robbery and
possibly murder who was a member of the Latin Kings gang.
Not only were they outnumbered, they were approaching a
moving vehicle containing individuals who had been with
Salazar just moments beforehand. Given the possibility that
Salazar was hidden inside the vehicle, their clear disadvantage
attempting on foot to stop a moving vehicle, and the possibil-
ity, given the nature of Salazar’s suspected crimes, that
individuals in the car may have been armed, it was not
unreasonable to draw weapons to safely effect the stop.
These same reasons support the officers’ decision to detain
Matz with handcuffs, frisk him, and search the car to verify
that Salazar was not inside. Matz and everyone else in the
vicinity had already made it patently clear that they did not
intend to remain where they were and speak to the police, and
so Klotka and Zuberbier could reasonably have believed
handcuffing the occupants of the car was the most safe and
16 No. 12-1674
efficient way to ascertain Salazar’s whereabouts and any
pertinent information about his suspected crimes. It was also
a reasonable approach to deal with the rapidly evolving
situation and prevent things from turning violent. Cf. Brendlin
v. Cal., 551 U.S. 249, 258 (2007) (“It is also reasonable for
passengers to expect that an officer at the scene of a crime,
arrest, or investigation will not let people move around in
ways that could jeopardize his safety.”). Klotka and Zuberbier
called for backup almost immediately. With the benefit of
hindsight we may be able to think of less intrusive ways–from
a Fourth Amendment perspective—the officers could have
detained Matz and the others. But the “fact that ‘the protection
of the public might, in the abstract, have been accomplished by
‘less intrusive’ means does not, by itself, render the search
unreasonable.’” Tilmon, 19 F.3d at 1225 (quoting Cady v.
Dombrowski, 413 U.S. 433, 447 (1973)); see also United States v.
Ocampo, 890 F.2d 1363, 1369-70 (7th Cir. 1989) (stop not
rendered unreasonable by fact that officer could have effectu-
ated it without drawing his gun). Furthermore, we must “take
care to consider whether the police are acting in a swiftly
developing situation, and in such cases the court should not
indulge in unrealistic second-guessing.” United States v. Sharpe,
470 U.S. 675, 686 (1985).
Although we conclude that the officers’ safety and the
dynamic situation they confronted justified using force and
restricting Matz’s movement, we again caution law enforce-
ment officers that in the ordinary case a Terry stop should not
be functionally indistinguishable from a full-blown arrest. Of
particular cause for concern in this regard is Zuberbier’s
deposition testimony that he considers such detentions with
No. 12-1674 17
handcuffs as part of “normal” police work: “[W]e detain
people all the time. We handcuff them, we find out it’s all
legitimate, talk to them, let them go. It’s part of daily police
work.” On the contrary, we remind law enforcement that using
handcuffs generally signifies an arrest, which requires probable
cause and not the less demanding reasonable suspicion
standard that permits only a brief and minimally intrusive
detention. Indeed, the fact that we have recognized exceptions
for concerns such as officer safety should not be read to imply
that the use of handcuffs and more intrusive measures will not
be a significant factor in assessing whether officers have
exceeded the bounds of a limited Terry detention. See Ramos v.
City of Chicago, 716 F.3d 1013, 1018 (7th Cir. 2013) (“The
proliferation of cases in this court in which ‘Terry’ stops involve
handcuffs and ever-increasing wait times in police vehicles is
disturbing, and we would caution law enforcement officers
that the acceptability of handcuffs in some cases does not
signal that the restraint is not a significant consideration in
determining the nature of the stop.”); see also Rabin, 725 F.3d at
639-41 (concurring opinion) (detailing exceptions supporting
use of handcuffs and other formal hallmarks of arrest and
reiterating that such invasive measures should be exception
not rule).
C. Probable Cause Determination
Matz next claims that after his arrest, he never received the
constitutionally required prompt determination of probable
cause. It is well-established that “the Fourth Amendment
requires a timely judicial determination of probable cause as a
prerequisite for detention.” Gerstein v. Pugh, 420 U.S. 103, 126
18 No. 12-1674
(1975). Probable cause determinations made within 48 hours of
arrest are presumptively prompt. County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991). Beyond the requirement of
a “prompt” determination, states retain wide latitude to craft
procedures for probable cause determinations that “accord
with a State’s pretrial procedure viewed as a whole,” and the
Supreme Court has expressly recognized “the desirability of
flexibility and experimentation by the States.” Gerstein, 420 U.S.
at 123. Matz argues principally that “Milwaukee County’s
practice of allowing court commissioners to make probable
cause determinations based on arrest and detention reports” is
inconsistent with Riverside’s requirement of a prompt determi-
nation of probable cause.
Matz’s claim cannot succeed insofar as it is leveled against
Milwaukee County or the “court commissioner” (who the
parties fail to describe beyond referring to her as “Commis-
sioner Liska”).4 A damages suit under § 1983 requires that a
defendant be personally involved in the alleged constitutional
deprivation. See Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir.
2010) (“[I]ndividual liability under § 1983 requires ‘personal
involvement in the alleged constitutional deprivation’”)
(quoting Palmer v. Marion Cty, 327 F.3d 588, 594 (7th Cir. 2003)).
As the quoted language above makes clear, Matz’s claim
hinges on Milwaukee County’s “practice,” allegedly followed
in his case, of allowing unsworn statements in an arrest report
4
Neither party provides any more detail about the “court commissioner”
and nowhere does Matz argue expressly that the court commissioner fails
to satisfy the requirement of a “judicial determination” of probable cause,
so we do not explore the issue further.
No. 12-1674 19
presented to a county commissioner to supply the necessary
probable cause for arrest. And as troubling as this practice may
be, Matz has presented no evidence that any defendants
named here had anything to do with it.
Indeed, the entire thrust of his argument on this point has
shifted on appeal. In the district court, Matz argued that
genuine issues of material fact existed as to whether he
received a timely probable cause determination. Specifically,
Matz claimed that Captain Moffet’s affidavit accompanying the
“probable cause determination” report signed by Commis-
sioner Liska failed to establish that Moffet was qualified to
verify that the report was kept during the regular course of
business, and so the report was inadmissable hearsay as to the
question of whether Matz receive a probable cause determina-
tion. The district court rejected this argument, and Matz does
not renew it on appeal. Instead, as discussed above, he attacks
the practice of allowing unsworn statements and the unsworn
statements themselves. But as the defendants point out, the
report was not authored, signed, nor otherwise created by any
of the named defendants.
The report states that it was written by an officer Richard
Wearing, who was assigned to the warrant squad. He describes
the encounter Zuberbier and Klotka had with Matz that
culminated in the revelation that he was driving a stolen
vehicle. There is then another paragraph written by Detective
Gary Temp, who recounts that Omar Rodriquez was shot and
killed five days prior to Matz’s arrest, Victoriano Mariano was
shot and killed four days before Matz’s arrest, and that two
other individuals were shot and sustained injuries four days
before Matz’s arrest. The report then states that after being
20 No. 12-1674
advised of and waiving his Miranda rights, Matz admitted to
shooting all four individuals. The report bears the seal of a
notary (David B. Zibolski), who signed to verify that it was
subscribed and sworn before him on September 18, 2003.
Finally, a box bearing the heading “Probable Cause Determi-
nation,” contains a signature the parties agree to be that of
Commissioner Liska. It is clear that at least the second portion
of the report, written by Detective Temp, was sworn before a
notary. But Matz claims that we cannot consider this section
because it is based on his confession allegedly procured in
violation of the Fifth Amendment, and the portion written by
Wearing is also off limits because it is unsworn.
Citing our decision in Haywood v. City of Chicago, 378 F.3d
714 (7th Cir. 2004), Matz now advances the argument that any
probable cause determination is constitutionally inadequate
because the report contains unsworn statements—specifically,
the portion written by Richard Wearing that recounts Matz’s
arrest.5 Haywood does little for Matz, however, because in that
§ 1983 suit the plaintiff sued the City of Chicago and two
arresting officers, one of whom forged the other’s name on the
complaint presented to secure probable cause to hold the
plaintiff. The problem in Haywood was that although the
complaint purported to satisfy the Fourth Amendment’s
5
Both parties agree that Officer Wearing provides a confusing description
of the events leading to Matz’s arrest. This is because Wearing refers
interchangeably to Salazar and Matz as the “subject,” and fails to identify
Matz by name, thus leaving it unclear whether Zuberbier and Klotka
arrested Salazar or Matz after stopping the vehicle. But it is ultimately of no
consequence because Matz is not suing Officer Wearing for writing an
inadequate report about the encounter.
No. 12-1674 21
requirement that “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation,” the only basis the
defense advanced for finding probable cause “was a falsely
sworn complaint whose falsity was, so far as appears, un-
known to the judge at the probable-cause hearing.” Id. at 718.
Here there is no allegation that Officer Wearing or Detective
Temp falsely signed the report or that the report contained
false information. Matz believes that because the notarized seal
is closest to the portion of the report authored by Temp, Officer
Wearing’s contribution is necessarily unsworn and therefore
inadequate under the Fourth Amendment to establish probable
cause. Haywood is obviously and immediately distinguishable
based on the fact that both the City and the individuals who
authored and (falsely) claimed to have authored the report
were sued. Matz has not sued Gary Temp, Richard Wearing, or
Milwaukee County, who he claims has a “practice” of allowing
unsworn statements to suffice for probable cause determina-
tions. Indeed, as it is not a defendant, we have no way of
knowing what Milwaukee County’s “practice” is and whether
it was followed here. In any event, what is clear is that Matz
has presented no evidence that Matz, Klotka, Jones, Caballero,
Walton, or Moore had any hand in crafting the report or
presenting it to the court commissioner for a probable cause
determination.
Matz deems it “irrelevant” whether the defendants were
personally involved in authoring the arrest report. But in a
§ 1983 claim for damages, the sole issue cannot be, as he would
have it “whether the district court correctly found that the
arrest report established, as a matter of law” that Matz re-
ceived an adequate and timely probable cause determination.
22 No. 12-1674
That question itself is irrelevant if none of these defendants
were personally involved in the alleged deprivation. It is thus
hardly irrelevant whether these defendants participated in
submitting the arrest report to the commissioner in lieu of
providing him with an in-person probable cause determination
(a process that did not occur until September 23, 2003, seven
days after Matz’s arrest and well outside Riverside’s 48-hour
window). He belatedly argues in his reply brief that Klotka and
Zuberbier provided some information in the report and
Walton, Caballero, Jones, and Moore were involved in obtain-
ing the allegedly coerced statement recounted by Detective
Temp—and that the named defendants were therefore
“involved” in the deprivation. But according to Matz, it is the
practice of using unsworn statements, and the use of an
allegedly coerced confession that make the document submit-
ted to Commissioner Liska deficient. And he has presented no
evidence that these defendants either knew about that practice
or participated in the decision to include Matz’s allegedly
coerced confession in the report. Thus, they are entitled to
summary judgment on Matz’s Fourth Amendment Riverside
claim. See Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014,
1039 (2003) (“‘Section 1983 creates a cause of action based on
personal liability and predicated upon fault; thus, liability does
not attach unless the individual defendant caused or partici-
pated in a constitutional deprivation.’”)(quoting Vance v. Peters,
97 F.3d 987, 991 (7th Cir. 1996)).
No. 12-1674 23
D. Fifth Amendment Claim
That leaves Matz’s claim that several of the defendants
violated his Fifth Amendment rights by continuing to interro-
gate him after he invoked his right to remain silent. It is
undisputed that Matz did not make any incriminating state-
ments during either his interview in the patrol van with
Detective Caballero or the next day when Jones and Moore
interviewed him at the police station. The Fifth Amendment
“privilege against self-incrimination, and thus the Miranda
doctrine, concerns the use of compelled statements in criminal
prosecutions.” Hanson v. Dane Cnty., Wis., 608 F.3d 335, 339
(7th Cir. 2010). No rational juror could conclude that the first
two interrogations violated Matz’s Fifth Amendment
rights—he said nothing incriminating at all, and so there was
obviously no statement used against him in his criminal
proceeding. See id. (“Police cannot ‘violate Miranda,’ despite
colloquial usage. … There’s nothing wrong with compelling
people to speak.”). Matz, however, claims that he may still be
entitled to monetary damages against Moore and Jones
because their initial interrogations were part of the “causal
chain” that resulted in his later involuntary confession to
Caballero and Walton.
But whether treated as a continuous interrogation that
produced an inculpatory statement or separated into three
distinct interviews, we agree with the district court that Matz’s
Fifth Amendment claim for damages is barred under Heck v.
Humphrey, 512 U.S. 477 (1994). Under Heck, a plaintiff may not
recover damages under § 1983 when a judgment in his favor
would necessarily imply the invalidity of a criminal conviction
24 No. 12-1674
or sentence that has not been reversed, expunged, invalidated,
or otherwise called into question. See id. at 486-87; Helman v.
Duhaime, 742 F.3d 760, 762 (7th Cir. 2014). There is no question
that Matz’s conviction and sentence have neither been invali-
dated nor called into question6. The only question is thus
whether Matz’s conviction or sentence necessarily depended
on his allegedly coerced confession.
We conclude, like the district court, that success on Matz’s
Fifth Amendment claim would necessarily imply the invalidity
of Matz’s sentence. At sentencing, the judge relied heavily on
Matz’s confession as well as his subsequent decision to recant
his admissions. Specifically, Matz explained to the judge that
he confessed out of loyalty to his fellow Latin King codefend-
ants in the hopes that he could take the fall and the rest of them
“would be able to go home.” The sentencing judge rejected the
notion that Matz confessed because “it was the right thing to
do,” and opined instead that Matz thought he could be out in
“five — ten years” and emerge in his “rightful spot” as the
leader of the Latin Kings brotherhood because he had stepped
up and taken responsibility for the “weaklings” beneath him.
The judge believed that when the reality of the prison sentence
Matz was facing set in and it came to light that his fellow Latin
Kings had inculpated him in the crime, he was scared and
realized that it was not worth taking the fall for his confeder-
ates. The court accordingly concluded that Matz had only a
6
Matz’s conviction was affirmed on direct appeal and the Wisconsin
Supreme Court denied his petition for review; he has also unsuccessfully
petitioned under 28 U.S.C. § 2254 to vacate, set aside, or correct his
sentence.
No. 12-1674 25
“sort of a selfish, self-centered remorse” and thus posed a high
risk of reoffending. Matz’s confession and the sentencing
judge’s assessment of the reasons behind it thus figured
prominently in the court’s decision to sentence Matz consecu-
tively on the two counts of conviction. Because that sentence
remains intact, Matz cannot pursue a § 1983 claim for damages
premised on his allegedly coerced confession because success
on his claim would call into question his sentence. Heck thus
bars Matz’s Fifth Amendment claim. See Davis v. Kan. Dep’t of
Corr., 507 F.3d 1246, 1249 (10th Cir. 2007) (barring claim
challenging sentencing calculation); cf. Muhammad v. Close, 540
U.S. 749, 751 (2004) (per curiam) (summarizing Heck bar as
applicable to any § 1983 damages action that “would implicitly
question the validity of conviction or duration of sentence” that
has not been previously invalidated) (emphasis added).
III.
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of the defendants.
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
490
CAF 11-02154
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
IN THE MATTER OF AMANDA J. MCDERMOTT,
PETITIONER-RESPONDENT-RESPONDENT,
V MEMORANDUM AND ORDER
ANDREW JOHN BALE,
RESPONDENT-PETITIONER-RESPONDENT.
-----------------------------------------
SANFORD A. CHURCH, ESQ., ATTORNEY FOR THE
CHILDREN, APPELLANT.
SANFORD A. CHURCH, ATTORNEY FOR THE CHILDREN, ALBION, APPELLANT PRO
SE.
MUSCATO, DIMILLO & VONA, L.L.P., LOCKPORT (P. ANDREW VONA OF COUNSEL),
FOR PETITIONER-RESPONDENT-RESPONDENT.
JAMES D. BELL, BROCKPORT, FOR RESPONDENT-PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Orleans County (James
P. Punch, J.), entered January 21, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted the
parents joint custody of their children, with petitioner-respondent
having primary physical residence.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this custody proceeding pursuant to Family Court
Act article 6, the Attorney for the Children (AFC) appeals from an
order granting the parties joint custody of their two children, with
primary physical residence to petitioner-respondent mother and liberal
visitation to respondent-petitioner father. The order incorporated
the terms of a written stipulation executed by the parties on the eve
of trial. The AFC refused to join in the stipulation, but Family
Court approved the stipulation over the AFC’s objection. We reject
the AFC’s contention that the court erred in approving the
stipulation. Although we agree with the AFC that he “ ‘must be
afforded the same opportunity as any other party to fully participate
in [the] proceeding’ ” (Matter of White v White, 267 AD2d 888, 890),
and that the court may not “relegate the [AFC] to a meaningless role”
(Matter of Figueroa v Lopez, 48 AD3d 906, 907), the children
represented by the AFC are not permitted to “veto” a proposed
settlement reached by their parents and thereby force a trial. The
-2- 490
CAF 11-02154
record reflects that, unlike in Matter of Figueroa, upon which the AFC
relies, the court here gave the AFC a full and fair opportunity to be
heard, and the AFC stated in detail all of the reasons that he opposed
the stipulation. Indeed, the court gave credence to many of the
comments made by the AFC, as did the attorneys for the parents, both
of whom agreed to modify the stipulation to address several of the
AFC’s concerns.
We cannot agree with the AFC that children in custody cases
should be given full-party status such that their consent is necessary
to effectuate a settlement. The purpose of an attorney for the
children is “to help protect their interests and to help them express
their wishes to the court” (Family Ct Act § 241). There is a
significant difference between allowing children to express their
wishes to the court and allowing their wishes to scuttle a proposed
settlement. We note that the court is not required to appoint an
attorney for the children in contested custody proceedings, although
that is no doubt the preferred practice (see Matter of Amato v Amato,
51 AD3d 1123, 1124; Davis v Davis, 269 AD2d 82, 85). Thus, there is
no support for the AFC’s contention that children in a custody
proceeding have the same legal status as their parents, inasmuch as it
is well settled that parents have the right to the assistance of
counsel in such proceedings (see § 262 [a] [v]; Matter of Kristin R.H.
v Robert E.H., 48 AD3d 1278, 1279).
In sum, we conclude that, where the court in a custody case
appoints an attorney for the children, he or she has the right to be
heard with respect to a proposed settlement and to object to the
settlement but not the right to preclude the court from approving the
settlement in the event that the court determines that the terms of
the settlement are in the children’s best interests. Parents who wish
to settle their disputes should not be required to engage in costly
and often times embittered litigation merely because their children or
the attorney for the children would prefer a different custodial
arrangement.
Entered: April 27, 2012 Frances E. Cafarell
Clerk of the Court
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J-S76034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL LEN SCHAFFER :
:
Appellant : No. 743 WDA 2018
Appeal from the PCRA Order April 9, 2018
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000569-2000
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 24, 2018
Paul Len Schaffer (Appellant) appeals pro se from the denial of his serial
petition seeking relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the relevant history of this case
as follows:
[Appellant] is serving an aggregate sentence of 26-52 years [of]
imprisonment, imposed following his conviction for rape, statutory
sexual assault, and related charges. He was sentenced on June
5, 2002, at which time he was also determined to be a Sexually
Violent Predator (SVP). On appeal, this Court affirmed
[Appellant]’s judgment of sentence, and our Supreme Court
subsequently denied his petition for allowance of appeal on August
31, 2006. Commonwealth v. P.L.S., 894 A.2d 120 (Pa. Super.
2006), appeal denied, 906 A.2d 542 (Pa. 2006). [Appellant]
later unsuccessfully sought both [relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9545] and
review in the federal courts.
J-S76034-18
See Commonwealth v. Schaffer, 1160 WDA 2014 at 1-2 (Pa. Super. July
10, 2015) (unpublished memorandum).
As a result of Appellant’s unrelenting attempts to obtain post-conviction
relief, the procedural history of this case is lengthy and convoluted. Of
relevance to the instant appeal, on November 3, 2017, Appellant filed a
petition for writ of habeas corpus in which he raised various illegal sentence
claims. The trial court properly treated the habeas corpus petition as a PCRA
petition. See 42 Pa.C.S.A. § 9542 (providing that “[t]he action established in
this subchapter shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect . . .”); see also
Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) (stating that “the
PCRA subsumes all forms of collateral relief, including habeas corpus, to the
extent a remedy is available under such enactment”).
On March 5, 2018, the PCRA court issued “Notice of Intention to Dismiss
PCRA Petition” consistent with Pennsylvania Rule of Criminal Procedure 907.
On April 9, 2018, it entered the order dismissing the PCRA petition, from which
Appellant timely appealed. Both the PCRA court and Appellant have complied
with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant claims that the PCRA court erred when it
“dismissed the Writ of Habeas Corpus.” However, before we can address this
claim, we must determine whether we have jurisdiction. “Pennsylvania law
-2-
J-S76034-18
makes clear no court has jurisdiction to hear an untimely PCRA petition.”
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)
(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).
A petitioner must file a PCRA petition within one year of the date on which the
petitioner’s judgment became final, unless one of the three statutory
exceptions apply:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “‘neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.’”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
-3-
J-S76034-18
In this case, the trial court sentenced Appellant on June 5, 2002. This
Court affirmed Appellant’s judgment of sentence on February 2, 2006, and
our Supreme Court denied his petition for allowance of appeal on August 31,
2006. Consequently, Appellant’s request for PCRA relief is facially untimely,
and he does not argue otherwise. Accordingly, we are without jurisdiction to
address Appellant’s appeal unless he has pled and proven one of the three
timeliness exceptions of Section 9545(b)(1). See id.
Appellant has not attempted to plead or prove any of the timeliness
exceptions of Section 9545(b)(1) in his PCRA petitions. Petition for Writ of
Habeas Corpus, 11/3/17. As Appellant has failed to plead and prove an
exception under section 9545(b)(1), we are without jurisdiction to address the
merits of his appeal. Derrickson, supra.1
____________________________________________
1 To the extent Appellant appears to argue that his designation as an SVP
renders his sentence illegal, citing this Court’s decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017). In Butler, the appellant challenged
his SVP designation on direct appeal. This Court held that, in light of our
Supreme Court’s decision in Muniz and the United States Supreme Court’s
decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v.
United States, 570 U.S. 99 (2013), “[sub]section 9799.24(e) of SORNA
[relating to SVP designation] violates the federal and state constitutions
because it increases the criminal penalty to which a defendant is exposed
without the chosen fact-finder making the necessary factual findings beyond
a reasonable doubt.” Butler, 173 A.3d at 1218. In challenging his SVP
designation and arguing that his sentence is illegal, Appellant has not
attempted to plead or prove a timeliness exception to his facially untimely
PCRA petition. To the extent Appellant argues the exception set forth in
Section 9545(b)(1)(iii) applies to his SVP claim, he must demonstrate that
Butler applies retroactively to cases pending on collateral review. Because
our Supreme Court has issued no such decision, Appellant cannot rely on
Butler to meet this timeliness exception.
-4-
J-S76034-18
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
-5-
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979 F.2d 1533
Allemand Boat Co.v.Kirk*
NOS. 92-3329, 92-3331
United States Court of Appeals,Fifth Circuit.
Nov 18, 1992
1
Appeal From: E.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a): 5th Cir.R. 34.2
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25 So.3d 1227 (2009)
JULES
v.
STATE.
No. 1D09-4788.
District Court of Appeal of Florida, First District.
December 23, 2009.
Decision Without Published Opinion Affirmed.
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In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-4316, 01-4317, 01-4318, 01-4319,
01-4320, 01-4321, 01-4322 & 02-1220
ESTATE OF BURTON W. KANTER,
JOSHUA S. KANTER, and NAOMI KANTER,
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
____________
Appeals from the United States Tax Court.
Nos. 712-86, 1350-87, 31301-87, 33557-87,
3456-88, 32103-88 & 26251-90
____________
On Remand from the Supreme Court of the United States
____________
SUBMITTED APRIL 20, 2005—DECIDED MAY 9, 2005
____________
Before CUDAHY, KANNE and EVANS,* Circuit Judges.
PER CURIAM. The certified copy of the Supreme Court
judgment in Estate of Burton W. Kanter v. Commissioner of
*
Upon reinstatement of this case Chief Judge Joel M. Flaum was
replaced by Judge Terence T. Evans.
2 Nos. 01-4316, 01-4317, 01-4318, 01-4319,
01-4320, 01-4321, 01-4322 & 02-1220
Internal Revenue, No. 03-1034, was issued no earlier than
25 days after the release of its opinion in Kanter on March
7, 2005. The certified copy of the judgment was filed with
this court on April 12, 2005. That judgment reversed our
decision and remanded this case for further proceedings. In
accordance therewith, on April 12, 2005, we vacated our
decision and reinstated this appeal.
Circuit Rule 54 provides in part that “counsel for the par-
ties shall, within 21 days after the issuance of a certified
copy of the Supreme Court’s judgment . . ., file statements
of their positions as to the action which ought to be taken
by this court on remand.”
Inconsistent with Rule 54, and before the reinstatement
of this appeal on April 12, 2005, the parties filed the fol-
lowing: on March 11, 2005, Estate of Kanter filed “Motion
to Supplement the Record on Appeal” (requesting an order
of production directed to the Tax Court regarding the Special
Trial Judge Report; requesting the record on appeal to be
supplemented with that report; and, requesting that this
court set a schedule for briefing the merits of the appeal in
light of the report); on March 24, 2005, the Commissioner
of Internal Revenue (“CIR”) filed “Commissioner’s Motion
to Remand, and Response to Taxpayer’s Motion to
Supplement Record” (requesting that the case be remanded
to the Tax Court for further proceedings consistent with the
Supreme Court’s decision); on March 25, 2005, Estate of
Kanter filed “Reply in Support of Motion to Supplement the
Record on Appeal and Response to Motion to Remand”; on
April 1, 2005, CIR filed “Commissioner’s Reply to Appel-
lant’s Response to Commissioner’s Motion to Remand”; and,
on April 5, 2005, Estate of Kanter filed “Motion to File
Surreply in Response to Motion to Remand.”
Notwithstanding, however, the filing of the aforementioned
pleadings prior to reinstatement of this appeal in this court,
Nos. 01-4316, 01-4317, 01-4318, 01-4319, 3
01-4320, 01-4321, 01-4322 & 02-1220
and the parties’ failure to adhere to the provisions of Circuit
Rule 54, we will treat the pleadings as filed post-April 12,
2005, and consider them as statements of position submitted
pursuant to Circuit Rule 54.
We decline the invitation of the Estate of Kanter to trun-
cate this case by foregoing a remand to the United States
Tax Court. The Estate of Kanter’s request for an order of
production, request to supplement the record, and request
for additional briefing are denied. The Estate of Kanter’s
request to file a surreply is denied.
On consideration of the position statements, we order this
case REMANDED to the United States Tax Court for further
proceedings consistent with the Supreme Court’s decision
in Estate of Burton W. Kanter v. Commissioner of Internal
Revenue, No. 03-1034.
CUDAHY, Circuit Judge, dissenting. Having been the dis-
senter in the earlier consideration of this case, I would
much prefer now to join my colleagues in making a proper
disposition in accordance with the Supreme Court’s re-
versal. However, I find that I cannot concur in the course
now being adopted.
The essential issue in this case was whether the Tax Court
was within its rights in refusing to include in the record on
appeal the report of the special tax court judge who pre-
sided over the trial. The Supreme Court has now decided
that the rules of the Tax Court do not authorize the sup-
pression of this document. This report must be included in
the record, and I see no reason why it cannot be produced
without further delay. It was improperly withheld, and that
nondisclosure ought to cease—now.
4 Nos. 01-4316, 01-4317, 01-4318, 01-4319,
01-4320, 01-4321, 01-4322 & 02-1220
The Commissioner argues that the Court also disapproved
the “collaborative” procedure followed by the Tax Court in
dealing with the special trial judge’s report. Therefore,
apparently before the undisclosed report is produced, the
Commissioner seeks a remand so the Tax Court can some-
how deal with the Supreme Court’s disapproval of its pro-
cedure. But this seems to me to put the cart before the
horse. The “collaborative” procedure was only adopted in
light of the decision to keep the report secret, in order to
deal with the requirement that the findings of the report be
granted due deference. There would have been no need for
a “collaborative” procedure had there been no decision to
keep the report secret, and it is this secrecy from which all
other purported improprieties spring.
There may or may not be need for a remand here, so that
the Tax Court may adopt some unspecified measures for
somehow correcting the “collaborative” procedure. I perhaps
could be persuaded of such a need if the Commissioner were
more specific in indicating exactly how the process of
correction would proceed and what purpose it would further.
However, I am not persuaded that any requirement to undo
the “collaborative” procedure is an adequate excuse for re-
fusing at this late date to produce the report. Other prob-
lems in this case all flow from the unfortunate decision to
refuse to disclose the report, and I believe that error should
be rectified without further delay.
I therefore respectfully dissent.
Nos. 01-4316, 01-4317, 01-4318, 01-4319, 5
01-4320, 01-4321, 01-4322 & 02-1220
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-9-05
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1805
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Robert Joseph Willson, Jr., *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: April 3, 2003
Filed: April 10, 2003
___________
Before HANSEN,1 Chief Judge, MORRIS SHEPPARD ARNOLD and BYE, Circuit
Judges.
___________
PER CURIAM.
Robert Willson, Jr., who was sentenced on drug conspiracy charges, appeals
the district court’s2 denial of his Federal Rule of Criminal Procedure 41(e) motion for
1
The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
2
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
return of property, following remand and an evidentiary hearing. The property at
issue is a Honda automobile, $1,400 in cash, and purported bail-bond notes, all seized
during a search of his residence. Mr. Willson raises challenges to the court’s pre- and
post-hearing rulings, and to the court’s conduct of the hearing itself, all of which we
reject as meritless following our review of the district court record and the hearing
transcripts.
Specifically, the district court did not abuse its discretion when it refused to
appoint standby counsel. Mr. Willson had refused the assistance of Attorney Alfredo
Parrish, whom the court had offered to appoint for him, and instead elected to proceed
pro se. Mr. Willson did not assert an alleged conflict with Mr. Parrish until much
later in the proceedings, nor did he adequately explain that conflict, and he showed
himself capable of presenting his case. See Rayes v. Johnson, 969 F.2d 700, 702-03
(8th Cir.), cert denied, 506 U.S. 1021 (1992). The court also did not abuse its
discretion in refusing to pay for an investigator to find and serve Mr. Willson’s
witnesses, or to grant Mr. Willson more time to serve the witnesses himself, given
Mr.Willson’s refusal to enlist the help of Mr. Parrish--who remained available to
assist him on request--and the length of time Mr. Willson had had to find and serve
the witnesses.
Mr. Willson’s complaints about the government’s discovery responses and late
provision of discovery fail because he shows neither abuse of discretion by the
district court, see Duffy v. Wolle, 123 F.3d 1026, 1040 (8th Cir. 1997), cert. denied,
523 U.S. 1137 (1998), nor resulting prejudice. We also find unsupported his
assertion that the government destroyed paperwork seized from his residence as drug
notes, to prevent him from proving that the material constituted bail-bond notes. And
having carefully reviewed the hearing transcripts, we find no evidence that the district
judge exhibited bias, improperly hindered Mr. Willson’s efforts to prove his case, or
acted with anything other than proper judicial decorum.
-2-
Further, we conclude that the district court did not clearly err in finding (1) that
the Honda had been reported stolen, and thus, state authorities towed it from
Mr. Willson’s property and destroyed the Honda when the actual owner refused to
reclaim it, (2) that the $1,400 had been mistakenly applied to satisfy the forfeiture
obligation of Mr. Willson’s father (a co-defendant in the drug conspiracy case), and
(3) that the search team seized the purported bail-bond notes based on a reasonable
belief that the material represented drug notes. See United States v. Felici, 208 F.3d
667, 669-70 (8th Cir. 2000) (in appeal of Rule 41(e) decision, this court reviews
district court’s factual findings for clear error and its legal conclusions de novo), cert.
denied, 531 U.S. 1201 (2001). Accordingly, we conclude that the district court did
not err in denying Rule 41(e) relief for a stolen car whose destruction occurred at the
hands of state authorities; for paperwork destroyed as drug notes, see id. at 670-71
(explaining limited-derivative-contraband-theory defense in Rule 41(e) proceedings);
and for a mistaken forfeiture of cash, see United States v. Hall, 269 F.3d 940, 943
(8th Cir. 2001) (discussing sovereign immunity in Rule 41(e) proceedings), cert.
denied, 122 S. Ct. 2626 (2002).
We also conclude that the court properly entered judgment after Mr. Willson
failed to file an alternative claim for money damages against the government (for the
mistaken forfeiture of his cash) within the time frame imposed by the district court.
Finally, we find meritless Mr. Willson’s assertions that he did not file the alternative
claim because he had moved for reconsideration and had thought that the court’s
deadline would be tolled while the court entertained his reconsideration motion, or
that the court would rule on his motion in time for him to file the alternative claim
before the court’s deadline.
Accordingly, the judgment of the district court is affirmed.
-3-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-
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916 A.2d 1104 (2007)
LLOYD
v.
PENNSYLVANIA PUBLIC UTILITY COM'N;
In re PPL Elec. Utilities Corp.
No. 710 MAL (2006).
Supreme Court of Pennsylvania.
January 31, 2007.
Disposition of petition for allowance of appeal denied.
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460 B.R. 749 (2011)
In re Jeffrey THOMS, also known as Jeff Thoms; Sue Thoms, Debtors.
Van Daele Bros., Inc., Plaintiff-Appellant,
v.
Jeffrey Thoms, Defendant-Appellee.
BAP No. 11-6043.
United States Bankruptcy Appellate Panel for the Eighth Circuit.
Submitted: November 18, 2011.
Decided: December 22, 2011.
*751 David Hamilton Skilton, Christine Bishop Skilton, Nashua, IA, on brief, for Appellant.
Brian W. Peters, Dubuque, IA, on brief, for Appellee.
Before SCHERMER, VENTERS, and SALADINO, Bankruptcy Judges.
VENTERS, Bankruptcy Judge.
The Plaintiff, Van Daele Bros., Inc., appeals the order of the bankruptcy court[1] determining that debt owed to it by Debtor Jeffrey Thoms is not excepted from discharge under 11 U.S.C. § 523(a)(6). For the reasons stated below, we affirm the bankruptcy court's decision.
BACKGROUND
Because we find that the bankruptcy court's decision was supported by the wealth of the evidence, we adopt with few modifications the factual background set out by the bankruptcy court.
In February 2008 Jeffrey Thoms approached Jerry Van Daele, a principal of Van Daele Bros., Inc., to refinance the debt secured by Thoms's cattle herd.[2] Thoms proposed to sell his herd of 24 cows and 5 yearling heifers to Plaintiff for $75,000 and then to lease them back for five annual lease payments of $18,784.23. Thoms would retain possession and responsibility for the cattle, which would be kept on a lot owned by Thoms's neighbor. Thoms prepared the documents for the sale and leaseback. Neither party was represented by an attorney.
To finance the purchase, Van Daele obtained a loan from Kerndt Bros. Savings Bank through his company, Van Daele Bros., Inc. Van Daele testified that he continues to make payments on that loan. The transaction was finalized on March 1, 2008, and Thoms used the $75,000 payment from Plaintiff to pay off a loan with Community Bank.
At the time of the transaction, Thoms was employed as a loan officer at Kerndt Bros. Savings Bank. He had been Van Daele's lending officer at the bank for approximately ten years. Van Daele testified that he was willing to help Thoms because he considered Thoms a friend and he trusted Thoms because of Thoms's position at the bank. He also testified that he understood that he was purchasing the cattle for $75,000 and that the Debtor would lease them from him and keep them at his property. Van Daele maintains that Thoms made oral assurances and agreed to notify Van Daele of any changes in the number of cattle.
In August 2008 Thoms lost his job at the bank. He testified that he initially believed that he could make the first annual payment under the lease the following March by finding a job at another bank. As it turned out, Thoms was only able to find part-time jobs and his income dropped to approximately $40,000 per year, before *752 taxes. Thoms defaulted on the first annual payment due March 1, 2009.
Just over 30 days later, on April 3, 2009, Van Daele picked up twenty 20 cows and 7 calves from Thoms's cattle lot. Thoms was not aware of the repossession until later; apparently, no one was around when the cattle were picked up. Thoms's father, Fred Thoms, claims five of the cows were his, not the Debtor's or Van Daele's. Fred Thoms has filed two replevin actions against Van Daele based on the removal of his five cows. He dismissed the first action just before trial and the other remains pending in the Iowa District Court in Fayette County.
A few days after the repossession, Thoms attempted to pay the 2009 annual payment with a check written by his daughter, Emily. Thoms testified that Emily obtained a loan from a friend of his, Gary Zimmerman, to help Thoms make the payment. Zimmerman loaned Emily $20,000 in the belief that she was going to use the money for college expenses. Van Daele refused to accept the check and apparently told Thoms that if he wanted the cattle back, he would have to pay off the whole debt as set out in the documents Thoms had prepared.
Apparently, the next time the parties discussed the matter was in August or September 2009 when Van Daele saw Debtor at the fairgrounds and told him he was going to have to sell the cattle because it was too costly to keep feeding and caring for them. Thoms testified that he responded: "You've got to do what you've got to do." Van Daele sold a majority of the cattle in September 2009, and by the end of 2009 or early 2010 he had sold all the cattle, receiving approximately $20,000 to $23,000 in total proceeds. He estimates that he spent approximately $10,000 for the feeding and care of the Cattle from the time he repossessed them until they were sold.
STANDARD OF REVIEW
We review the Bankruptcy Court's factual findings for clear error and its conclusions of law de novo.[3] The Plaintiff does not assert that the bankruptcy court erred in its application of § 523(a)(6); rather, it asserts that the court's factual findings were clearly erroneous. "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."[4] If the Bankruptcy Court's account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse merely because we might have decided the issue differently.[5] "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."[6]
DISCUSSION
Section 523(a)(6) excepts from discharge debts for an injury that is both willful and malicious.[7] In this context, the term "willful" means that the injury, not merely the act leading to the injury, must be deliberate or intentional;[8] and a "malicious" *753 injury is one that is targeted at the creditor, in the sense that the conduct is certain or almost certain to cause financial harm.[9]
Distilled to its essence, the Appellant's argument is that the bankruptcy court should have found Thoms's debt to the Appellant nondischargeable under § 523(a)(6) because the evidence allegedly showed that: 1) Thoms and his father were partners in the cattle business, 2) Thoms failed to adequately explain a decrease in the number of cattle, 3) Thoms failed to adequately disclose on his bankruptcy schedules and statement of financial affairs the Appellant's repossession of the cattle and Thoms's debt to the Appellant, and 4) Thoms lied to Gary Zimmerman to get a $20,000 loan to try to make the first lease payment.
Putting aside that there was little or no evidence that Thoms and his father were partners[10] and that the bankruptcy court found Thoms's explanation of the decrease in herd sizeapparently several cows were lost to sickness and diseasecredible,[11] none of these facts, alone or together, is sufficient to warrant a finding that Thoms's debt to the Appellant is nondischargeable under § 523(a)(6).
The existence of a partnership between Thoms and his father does not, by itself, create any inference that they conspired to defraud Van Daele. The record is devoid of any affirmative evidence that Thoms sold or otherwise disposed of the missing cattle with the intent to harm Van Daele (personally or Van Daele Bros., Inc.), which evidence is necessary to except a debt from discharge under § 523(a)(6).[12] The alleged omissions from Thoms's schedules included the debt to Van Daele, which omission would underminerather than supportthe Appellant's contention that Thoms intended all along to discharge his debt to the Appellant. And, finally, the fact that Thoms was willing to go to great (albeit dishonest) lengths to borrow money to repay the Appellant weighs strongly against a finding that Thoms conspired with his father to defraud the Appellant.
As noted above, a factfinder's choice of one of two permissible views of the evidence cannot be clearly erroneous.[13] Here, the Appellant has presented an interpretation of the evidence which is less plausible than the bankruptcy court's interpretation, which attributed Thoms's failure to repay the Appellant primarily to Thoms's unanticipated loss of a higher-paying job. Therefore, we must affirm the bankruptcy court's determination that Thoms's debt to the Appellant is not excepted from discharge under 11 U.S.C. § 523(a)(6).
*754 CONCLUSION
For the reasons stated above, we affirm the bankruptcy court's decision.
NOTES
[1] The Honorable Paul J. Kilburg, Bankruptcy Judge for the Northern District of Iowa.
[2] Although the named Appellant is Van Daele Bros., Inc., all of the acts upon which the Appellant bases its § 523(a)(6) claim were allegedly directed at Jerry Van Daele personally.
[3] See Floret, L.L.C. v. Sendecky (In re Sendecky), 283 B.R. 760, 763 (8th Cir. BAP 2002).
[4] Id.; Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
[5] See Anderson v. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. at 1511.
[6] Id.
[7] 11 U.S.C. § 523(a)(6) (West 2010).
[8] Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998).
[9] In re Madsen, 195 F.3d 988, 989 (8th Cir. 1999).
[10] At most the testimony showed that Thoms's father occasionally covered purchases of supplies which Thoms repaid and Thoms once mentioned trying to settle his and his father's disputes with Van Daele together.
[11] Deference must be given to the bankruptcy court's evaluation of the credibility of witnesses. Fed.R.Civ.P. 52(a). See also Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir.1988).
[12] See, e.g., Werner v. Hofmann, 5 F.3d 1170, 1172 (8th Cir. 1993) (holding that failure to return the correct number of cattle upon termination of a dairy cattle lease did not constitute a willful and malicious injury under § 523(a)(6) in the absence of evidence that the discrepancy resulted from a deliberate attempt to cause financial harm).
[13] See supra n. 6.
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Matter of Panorama Windows, Ltd. v 350 E. 55th St., LLC (2014 NY Slip Op 08236)
Matter of Panorama Windows, Ltd. v 350 E. 55th St., LLC
2014 NY Slip Op 08236
Decided on November 25, 2014
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 November 25, 2014
Gonzalez, P.J., Mazzarelli, Manzanet-Daniels, Gische, Clark, JJ.
13593 651254/13
[*1] In re Panorama Windows, Ltd., Petitioner-Respondent,
v350 East 55th Street, LLC, Respondent-Appellant.
Law Office of Ira S. Newman, Great Neck (Evan M. Goldberg of counsel), for appellant.
Rachel Schulman, PLLC, Great Neck (Rachel Schulman of counsel), for respondent.
Judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered February 7, 2014, confirming the arbitration award, unanimously affirmed, with costs.
The arbitrator's innocuous conversation with petitioner was not shown to have prejudiced respondent (see Matter of Hausknecht v Comprehensive Med. Care of N.Y., P.C., 24 AD3d 778, 780 [2d Dept 2005]). The award of damages for additional work pursuant to respondent's oral directives was not in manifest disregard of the law or in excess of the arbitrator's powers (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 480-481 [2006],
cert dismissed 548 US 940 [2006]; Matter of New York Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 25, 2014
CLERK
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3127
___________
Dorothy L. Clark, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
United States Department of *
Agriculture; Mike Johanns, Secretary, *
*
Defendants - Appellees. *
___________
Submitted: April 15, 2008
Filed: August 12, 2008
___________
Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
Appellant Dorothy L. Clark appeals the district court’s1 refusal to grant a
declaratory judgment and set aside a United States Department of Agriculture (USDA)
determination that she converted wetlands in violation of the Swampbuster provisions
of the Food Security Act of 1985, codified as amended at 16 U.S.C. §§ 3801, 3821-24
(2000). Because the USDA determined she had converted wetlands, Clark became
ineligible for certain farm program payments. Clark challenges the USDA’s
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
interpretation of the term “converted wetland” and argues the evidence is insufficient
to support the USDA’s determination that she converted wetlands. In addition, she
challenges a USDA regulation that placed the burden on her to request, and prove her
eligibility for, a “minimal effect” exemption. Given the deference we owe to the
USDA’s regulation, its interpretation of the applicable law, and its factual
determinations, we affirm the district court’s denial of relief.
I. Background
The Swampbuster provisions authorize the USDA to make determinations as
to whether certain lands qualify as wetlands and whether wetlands that have been
manipulated qualify as converted wetlands. 16 U.S.C. § 3801(a)(6) & (18) (defining
“converted wetland” and “wetland,” respectively); id. §§ 3821(e), 3822 (authorizing
the USDA to make such determinations). To deter the conversion of wetlands, a
person determined to have converted wetlands may become ineligible to receive farm
program payments. 16 U.S.C. § 3821(c). An exception to the ineligibility provision
exists for manipulations determined to have only a minimal effect upon wetland and
biological functions. 16 U.S.C. § 3822(f). The case below involved wetlands
determinations, converted wetlands determinations, and the minimal effect exemption.
The present appeal involves only the converted wetlands determinations and the
minimal effect exemption.
Dorothy Clark owns a farm in Boone County, Iowa. She does not actively work
her farm, but with the assistance of her son, she makes decisions regarding the farm
and leases the farm to a tenant. A creek running through the farm forms a series of
oxbows that previously served as pasture ground. In an effort to increase income from
the farm, Clark and her son decided to convert the pasture ground for use in row
cropping. Neither Clark nor the USDA alleges that the tenant was involved in the
decision to manipulate the land or in any subsequent manipulations to the land.
-2-
On November 18, 2002, Clark’s son sought a wetlands determination from the
Natural Resource Conservation Service, an agency within the USDA. After repeated
visits, Jared Finley, a district conservationist, determined that eight sites in the area
of the oxbows contained a total of five acres of wetlands. In an April 16, 2003 letter,
Finley set forth his technical determination and notified Clark she was not to
manipulate the wetlands without first contacting the USDA.2 In addition, the letter
indicated that certain permits might be required from the United States Army Corps
of Engineers and from the Iowa Department of Natural Resources, but that any
permits should be presented to the USDA and that the USDA could inform her of her
compliance options and any available exemptions.3
2
The letter clearly stated that Clark was not to fill, level, or clear the oxbows
identified as wetlands:
In order to maintain your USDA program eligibility and comply with the
Clean Water Act, contact us prior to performing the following activities:
• Land clearing
• Drainage (tile or open ditching)
• Drainage maintenance
• Filling, leveling, or dredging
• Land use changes
• Any activity involving “other waters of the United
States” as defined above
3
The language in the letter relevant to permits was as follows:
This project may qualify for Corps of Engineers (COE) Engineering
permit exemption under the wetland conservation provisions of the Food
Security Act. You must pursue your next action with the COE to obtain
a Clean Water Act (CWA) Section 404 permit. As part of the process
you may also be required to obtain CWA Section 401, Water Quality
Certification from the Iowa Department of Natural Resources (IDNR).
. . . Upon receipt of a copy of the COE permit, NRCS will be able to
-3-
After receiving the letter, Clark contacted an attorney to seek assistance in
obtaining permits from the IDNR and the COE. The attorney eventually advised her
that the COE did not claim jurisdiction over the land in question and that the IDNR
did not require her to obtain any permits. Notwithstanding the language in Finley’s
April 16, 2003 letter requesting that Clark contact NRCS prior to manipulating the
land, she proceeded to fill and level the wetlands without contacting NRCS.
On December 8, 2004, after receiving several “whistleblower” reports of
bulldozing activities on the Clark property, Finley met with Clark’s son at the farm.
Finley observed that two of the eight sites determined to be wetlands were now filled.
In a letter dated December 10, 2004, Finley identified the filled areas and stated,
“These areas met the criteria of wetlands which are hydric soils, wetland plants and
soil or surface wetness. Your manipulation by filling in on this wetland area is
considered an alteration that makes the area more farmable which is a violation of the
Swampbuster provisions . . . .” Having received no request for a minimal effect
determination nor advance notification regarding the nature of Clark’s proposed
manipulation of the two wetland sites, Finley conducted no minimal effect
investigation and made no minimal effect determination.
When Finley’s wetlands and converted wetlands determinations became final,
Clark appealed to the County Farm Service Agency Committee and the USDA’s
National Appeals Division, losing her appeals at each step. She then sought and was
proceed with issuance of a revised NRCS-CPA-026E notifying you of
your wetland conservation compliance options with USDA programs.
The appropriate Food Security Act exemptions will also be noted as well
as any further action upon your part.
(Emphasis added).
-4-
denied review from the Director of the National Appeals Division. The Director’s
denial of relief serves as the final agency action.
Clark then filed this suit in the district court. She sought a declaratory judgment
alleging the USDA’s action was “arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law; was in excess of statutory jurisdiction,
authority, or limitations or short of statutory rights; was without observance of
procedure as required by law, and was unsupported by substantial evidence . . . .” She
argued specifically that: (1) the USDA followed inadequate procedures when making
the wetlands determination, and the evidence did not support the wetlands
determination; (2) the USDA misinterpreted the term “converted wetland,” the USDA
applied an improper standard in making the converted wetlands determination, and the
evidence did not support the converted wetlands determination; and (3) the USDA
was required, but failed, to conduct a minimal effect determination regarding the
manipulation of the two sites. The USDA contested each argument and also argued
that Clark failed to adequately exhaust her administrative remedies.
The court determined that Clark had adequately exhausted her administrative
remedies. The court then rejected all of Clark’s arguments regarding the wetlands
determination, the converted wetlands determination, and the minimal effect
exemption. On appeal, the government does not renew its argument that Clark failed
to exhaust her administrative remedies, and Clark does not renew her arguments
regarding the wetlands determination. As such, we need not address these arguments
further nor discuss the technical details of the wetlands determination.
Some additional facts are relevant to the issue of the converted wetlands
determination. The Swampbuster provisions define a converted wetland as a wetland
manipulated “for the purpose or to have the effect of making the production of an
agricultural commodity possible if-- (i) such production would not have been possible
-5-
but for such action . . . .” 16 U.S.C. § 3801(a)(6)(A)4. Clark relied upon the statutory
language “possible” and “not have been possible” and argued that the USDA erred by
determining the two wetlands she filled were converted wetlands without first proving
the wetlands’ pre- and post-manipulation capability to support “the production of an
agricultural commodity.” Id. In making this argument, Clark urged the court to
interpret the word “possible” in a strict manner such that a wetland is not a converted
wetland if it is capable of supporting any quantity or quality of agricultural
commodity production. She also urged the court to find that the USDA had a duty to
prove the wetlands could not support the production of agricultural commodities prior
to the manipulation but could support such production after the manipulation. She
argued that the USDA merely presented evidence showing that agricultural
4
The full statutory definition is as follows:
(A) The term “converted wetland” means wetland that has been drained,
dredged, filled, leveled, or otherwise manipulated (including any activity
that results in impairing or reducing the flow, circulation, or reach of
water) for the purpose or to have the effect of making the production of
an agricultural commodity possible if--
(i) such production would not have been possible but for such
action; and
(ii) before such action--
(I) such land was wetland; and
(II) such land was neither highly erodible land nor highly
erodible cropland.
(B) Wetland shall not be considered converted wetland if production of
an agricultural commodity on such land during a crop year--
(i) is possible as a result of a natural condition, such as
drought; and
(ii) is not assisted by an action of the producer that destroys
natural wetland characteristics.
16 U.S.C. § 3801(a)(6).
-6-
commodities had not been grown on the two sites, not that agricultural commodities
could not have been grown on those sites.
Evidence relevant to the production of agricultural commodities included aerial
photographs from 1985 on. These photographs showed no cropping on any of the
eight wetlands prior to the bulldozing activity and no cropping on the six unfilled
wetlands after the bulldozing activity. The photographs did show cropping on the two
filled wetlands after the bulldozing activity. Further, Clark admitted in her filings
before the district court that her purpose in manipulating the land was to convert the
land from use as a pasture to use for growing agricultural commodities. Finally,
Finley testified that he was told someone had attempted to grow agricultural
commodities on the two now-filled wetlands at some point in the past, before Clark
filled the wetlands. He had no information, however, regarding the success of those
efforts.5
The district court presented several bases for rejecting Clark’s arguments. First,
the court rejected Clark’s request to apply a strict, literal definition for the statutory
5
Clark asserts that agricultural commodities grew on the now-filled wetlands
in the past, prior to her filling the wetlands. In support of this assertion, however, she
cites only to Finley’s inconclusive testimony regarding hearsay reports of attempting
cropping. Finley’s testimony was as follows:
A. The only evidence I can show is that during certification of
agriculture commodity that piece has never been farmed and they
did try to farm it. Prior to converting it actually the operator did
drive through there and try to plant agriculture commodity. What
he produced I cannot answer that.
Q. In fact, what knowledge you do have is that there was production
in there, you just don’t know what the results were; is that correct?
A. Correct. He drove through it and that’s prior to converting it or
leveling it, filling it.
-7-
term “possible.” Instead, the court accepted the USDA’s position that a practical
interpretation should apply to the statutory term “possible,” i.e., manipulations to
wetlands that make the wetlands more suitable for farming qualify as the conversion
of wetlands. Second, the court rejected Clark’s argument that the USDA was required
to prove that the wetlands, post-manipulation, could produce agricultural
commodities. The court emphasized that the statute prohibits manipulations “for the
purpose or to have the effect of making the production of an agricultural commodity
possible.” Id. (emphasis added). Finally, the court found the evidence the USDA
relied upon sufficient to support the agency’s action because the evidence
demonstrated clearly that the purpose of the manipulations was to make the two
wetlands more suitable for cropping, and there was no evidence of prior successful
cropping on the manipulated wetlands.
Clark’s argument regarding a minimal effect exemption was legal in nature.
Clark argued that the USDA has an obligation in all cases to conduct a minimal effect
investigation and issue a minimal effect determination. She argued that the USDA
always bears the burden of proving a manipulation has more than a minimal effect.
In fact, the relevant statutory provision does not state whether the USDA or the
landowner bears the burden to prove eligibility for a minimal effect exemption.6 The
6
The relevant portion of the statutory provision is as follows:
(f) Minimal effect; mitigation
The Secretary shall exempt a person from the ineligibility provisions of
section 3821 of this title for any action associated with the production of
an agricultural commodity on a converted wetland, or the conversion of
a wetland, if 1 or more of the following conditions apply, as determined
by the Secretary:
(1) The action, individually and in connection with all other similar
actions authorized by the Secretary in the area, will have a minimal
-8-
USDA, however, issued a regulation that places the burden of proof on the landowner
if the landowner converts a wetland without first asking the USDA to make a minimal
effect determination. As noted above, Clark did not request such a determination prior
to her manipulation of the wetland. Also, Clark did not present any evidence on the
issue of whether her manipulations had more than a minimal effect. Given this
posture, Clark’s challenge was a facial challenge to the validity of the USDA’s
burden-assigning regulation. The district court rejected Clark’s argument, finding that
the USDA’s burden-assigning regulation was consistent with, and a permissible
construction of, the statute.
II. Discussion
A. Standard of Review
We review the district court’s judgment de novo. Cent. S.D. Coop. Grazing
Dist. v. Sec’y of the U.S. Dep’t of Agric., 266 F.3d 889, 894 (8th Cir. 2001). Like the
district court, however, we review the USDA’s action under a deferential standard.
Id. We will not disturb the USDA’s action unless it was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A),
or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right,” id. § 706(2)(C). See 7 U.S.C. § 6999 (“A final determination of the Division
shall be reviewable and enforceable by any United States district court of competent
jurisdiction in accordance with chapter 7 of Title 5.”).
effect on the functional hydrological and biological value of the wetlands
in the area, including the value to waterfowl and wildlife.
16 U.S.C. § 3822.
-9-
This case turns largely on questions of statutory interpretation. “[W]hen an
agency invokes its authority to issue regulations, which then interpret ambiguous
statutory terms, the courts defer to its reasonable interpretations.” Fed. Express Corp.
v. Holowecki, 128 S. Ct. 1147, 1154 (2008); see also Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984). We have interpreted this
deference as amounting to “controlling weight unless [the regulation is] ‘arbitrary,
capricious, or manifestly contrary to the statute.’” Friends of Boundary Waters
Wilderness v. Bosworth, 437 F.3d 815, 822 (8th Cir. 2006) (quoting In re Old
Fashioned Enters., 236 F.3d 422, 425 (8th Cir. 2001)). When an agency’s
interpretation of a statute is presented in a less formal manner that “does not appear
to have ‘the force of law,’” however, it is not entitled to this high level of deference.
St. Mary’s Hosp. v. Leavitt, 416 F.3d 906, 914 (8th Cir. 2005) (quoting Christensen
v. Harris County, 529 U.S. 576, 587 (2000)). In such circumstances, the agency
interpretation “is entitled to respect to the extent it has the power to persuade.” Id.
(internal quotation omitted). As the Supreme Court recently articulated:
Assuming these interpretive statements are not entitled to full Chevron
deference, they do reflect “‘a body of experience and informed judgment
to which courts and litigants may properly resort for guidance.’”
Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (quoting Skidmore v. Swift
& Co., 323 U.S. 134 (1944)). As such, they are entitled to a “measure of
respect” under the less deferential Skidmore standard. Alaska Dept. of
Environmental Conservation v. EPA, 540 U.S. 461, 487, 488 (2004);
United States v. Mead Corp., 533 U.S. 218, 227-239 (2001).
Fed. Express Corp., 128 S. Ct. at 1156.
B. Converted Wetlands
As noted, the dispute regarding the USDA’s converted wetlands determination
centers on the word “possible” as used in the phrases “making the production of an
agricultural crop possible” and “such production would not have been possible.” 16
-10-
U.S.C. § 3801(a)(6)(A). Clark argues for a strict definition of the term “possible” that
would exempt from Swampbuster protection any land upon which any quantity or
quality of agricultural commodity could have been grown prior to manipulation. The
USDA interprets the term “possible” in a practical sense, treating as conversion those
actions that make a wetland more suitable for growing agricultural commodities. See
National Food Security Act Manual § 514.20(d) (3d ed., amend. 4, Sept. 1999)
(“Making production possible means manipulation: which allows . . . production of
an agricultural commodity where such production was not previously possible, or
making an area farmable more years than previously possible, or which reduces crop
stress and allows increased crop yields . . . .”). The USDA’s position also is reflected
in Finley’s December 10, 2004 letter to Clark in which he stated, “Your manipulation
by filling in on this wetland area is considered an alteration that makes the area more
farmable which is a violation of the Swampbuster provisions.” (Emphasis added).
“If the plain language of the statute is unambiguous, that language is conclusive
absent clear legislative intent to the contrary. Therefore, if the intent of Congress can
be clearly discerned from the statute’s language, the judicial inquiry must end.”
United States v. McAllister, 225 F.3d 982, 986 (8th Cir. 2000) (internal quotation
omitted). In reviewing statutory language, we do not read individual words in
isolation, but rather, we read them in the context in which they are used and in the
context of the statute as a whole. In re Benn, 491 F.3d 811, 814 (8th Cir. 2007). Read
in isolation, the term “possible” might appear unambiguous, and Clark’s strict
interpretation might seem appropriate. We believe, however, that read in context, the
phrases containing the word “possible” are ambiguous. The phrases describe the
production of agricultural commodities—commercial biological processes in which
success might be measured by several different standards, for example, strictly in
terms of technical growth or in terms of commercial feasibility.
As aptly noted by the district court, Clark’s position, if accepted, would exclude
from protection all wetlands that were in any measure farmable prior to manipulation.
-11-
The USDA described Clark’s position as follows, “[Clark’s] construction would mean
that, if the land could have occasionally produced one stunted ear of corn or pod of
soybeans prior to being filled, there could be no conversion of a wetland triggering the
[16 U.S.C.] § 3821 bar on participation in federal farm programs.” Appellee’s brief
at 17. We agree that such a result would be absurd as it would remove from
protection vast areas of wetlands. We find no suggestion in the Swampbuster
provisions that Congress intended to exclude from protection all wetlands that might
support some de minimis growth of agricultural commodities. Further, such an
interpretation would be inconsistent with the general purpose of the statute, which we
previously recognized as an effort “to combat the disappearance of wetlands through
their conversion into crop lands . . . .” Gunn v. U.S. Dep’t of Agric. 118 F.3d 1233,
1235 (8th Cir. 1997).
In addition, Clark’s preferred interpretation would render the language of 16
U.S.C. § 3801(a)(6)(B)(ii) superfluous. That subsection provides that a wetland is not
considered a converted wetland if natural conditions (e.g. drought) permit the
occasional production of an agricultural commodity “not assisted by an action of the
producer that destroys natural wetland characteristics.” Id. Clark’s interpretation of
the term “possible” would necessarily exclude from the definition of converted
wetlands any and all wetlands that might from time to time be production-capable
regardless of whether or not a manipulation to the land “destroys natural wetland
characteristics.” Id. Under Clark’s view, a categorical exemption would precede and
render superfluous the manipulation limitation contained in § 3801(a)(6)(B)(ii).
The USDA’s interpretation of the term “possible,” as reflected in Finley’s letter
and in the National Food Security Act Manual, is not contained in a regulation born
of the rulemaking process, and “does not appear to have the force of law.” St. Mary’s
Hospital, 416 F.3d at 914 (internal quotations omitted). As such it is not entitled to
the high level of deference afforded under the rule of Chevron, 467 U.S. at 843-45.
Nevertheless, the interpretation arises from the agency’s application of its
-12-
technological expertise based on “a body of experience and informed judgment” and
is therefore entitled to respect. Skidmore, 323 U.S. at 140. For the reasons set forth
above, we believe the USDA acted within its authority in interpreting an ambiguous
statutory term, and we find the USDA’s interpretation to be a persuasive, practical,
and permissible interpretation of the statute.
Applying this definition, it is beyond dispute that Clark manipulated the
wetlands in question for the purpose of making the production of an agricultural
commodity more feasible. She admitted this in her court filings and in a January 1,
2005 letter to the COE. Because the definition of the term “converted wetland”
focuses on “purpose” or “effect” in the alternative, the USDA was not required to
prove that Clark, through manipulation of the wetlands, was successful in her efforts
to “make the production of an agricultural commodity possible.” 16 U.S.C.
§ 3801(a)(6)(A).
C. Minimal Effect
Where there is a showing that the manipulation of a wetland has only a minimal
effect, the agency is not to impose the ineligibility consequences otherwise applicable
under the Swampbuster provisions of the Food Security Act. 16 U.S.C. § 3822(f),
supra at n.6. The statute, however, is silent and therefore ambiguous as to whether the
agency or the landowner bears the burden of proving minimal impact as to any given
piece of land.
-13-
Filling this void, the USDA passed a regulation7 clear in its requirement that a
landowner must consult with the USDA prior to manipulating a wetland or face the
consequence of bearing the burden to prove the manipulations have only a minimal
effect. The USDA argues its regulation is reasonable, because after manipulation, it
would be substantially more difficult and technically challenging for the agency to
prove what the wetlands’ function or value might have been prior to alteration (as
would be required as a basis for comparison to the wetlands function and value of the
site after manipulation). Recognizing this technical challenge, the USDA argues it has
reasonably imposed a duty on the landowner to request a determination in advance of
any manipulation or to bear the burden of proof as a consequence of not seeking a pre-
alteration determination.
Clark notes that Congress amended 16 U.S.C. § 3822(f) in 1990, replacing the
phrase “The Secretary may exempt,” with the phrase “The Secretary shall exempt.”
Pub. L. 101-624, Title XIV, § 1422, Nov. 28, 1990, 104 Stat. 3573. Clark argues
generally that this amendment reflects a legislative desire to curb perceived resistance
7
7 C.F.R. 12.31(d) provides:
Minimal effect determination. For the purposes of § 12.5(b)(1)(v) of this
part, NRCS shall determine whether the effect of any action of a person
associated with the conversion of a wetland . . . has a minimal effect on
the functions and values of wetlands in the area. Such determination
shall be based upon a functional assessment of functions and values of
the wetland under consideration and other related wetlands in the area,
and will be made through an on-site evaluation. A request for such
determination will be made prior to the beginning of activities that
would convert the wetland. If a person has converted a wetland and then
seeks a determination that the effect of such conversion on wetland was
minimal, the burden will be upon the person to demonstrate to the
satisfaction of NRCS that the effect was minimal.
(Emphasis added).
-14-
from the USDA towards issuing such exemptions. We do not disagree with this
general statement: the amendment clearly deprives the USDA of discretion where
discretion previously existed, and following the 1990 amendment the USDA must
grant such exemptions where a manipulation is shown to have a minimal effect.
The statute, even as amended, however, does not apportion the burden of proof
regarding the technical determination of whether a manipulation has more than
minimal effect. Nor does it contain any language suggesting the USDA is without
authority to impose a burden of proof upon landowners who fail to request a
determination prior to taking action likely to hinder the USDA in its assessment of the
wetlands’ pre-manipulation function and value. In fact, Congress remained silent as
to the burden of proof and as to the requirement that a landowner request a minimal
effect determination even though the USDA had adopted the final rules addressing
these issues several years prior to Congress’s amendment of the statute. See 52 F.R.
35194-01 (Sept. 17, 1987) (adopting the regulation now contained in 7 C.F.R. §
12.31(d)).
Further, the statute, both before and after amendment, refers to a manipulation
as having a minimal effect “individually and in connection with all other similar
actions authorized by the Secretary in the area . . . .” 16 U.S.C. § 3822(f)(1). This
language appears to presume that any action subject to a minimal effect exemption
would have been reviewed and authorized in advance by the USDA, not examined
after the fact. At a minimum, this language suggests a statutory scheme consistent
with Finley’s letter, i.e., a scheme in which landowners notify the USDA in advance
of their planned manipulations. Under such a scheme, it would be more technically
feasible to conduct the before-and-after investigations necessary to make a minimal
effect determination. Given these several bases for support and the high level of
deference we owe to the agency’s interpretation of the statute as set forth in the
regulation, we must reject Clark’s challenge.
-15-
Finally, to the extent Clark argues that the USDA failed to provide adequate
procedures for informing and inviting landowners to request minimal effect
determinations, her arguments are without merit. As quoted above, Finley’s April 16,
2003 letter clearly instructed Clark not to fill the wetlands, notified her that the
USDA’s Natural Resource Conservation Service would inform her of her compliance
options, and stated, “The appropriate Food Security Act exemptions will also be noted
as well as any further action upon your part.” The information provided to Clark,
then, clearly anticipated further interaction with the USDA including an opportunity
to address the availability of exemptions and compliance options for any proposed
actions. Clark’s unilateral action preempted this opportunity for information
exchange and undercuts her procedural arguments.
III. Conclusion
We affirm the judgment of the district court.
______________________________
-16-
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656 F.2d 900
211 U.S.App.D.C. 311
Puerto Rico Telephone Authorityv.Federal Communications Commission
79-2426, 79-2427, 79-2428
UNITED STATES COURT OF APPEALS District of Columbia Circuit
5/15/81
1
F.C.C.
AFFIRMED
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645 F.Supp. 996 (1985)
CENTRAL PENNSYLVANIA TEAMSTER'S PENSION FUND, et al.
v.
SERVICE GROUP, INC., et al.
Civ. A. No. 84-2469.
United States District Court, E.D. Pennsylvania.
March 28, 1985.
Chas. R. Osinski, Allentown, Pa., for plaintiffs.
*997 Robert J. Lichtenstein, Philadelphia, Pa., for Service Group, Inc.
J. Thomas Menaker, Harrisburg, Pa., for Harley.
MEMORANDUM AND ORDER
HUYETT, District Judge.
Plaintiffs in this case are the Central Pennsylvania Teamsters Pension Fund and its trustees ("the Plan"). The Plan is a multi-employer pension plan governed by the Employee Retirement Income Security Act ("ERISA") as amended by the Multi-Employer Pension Plan Act Amendments ("MPPAA"), 29 U.S.C. §§ 1381-1453. This lawsuit arises from a determination made by the Plan's trustees that defendant Service Group Inc. ("SGI") had withdrawn from the Plan as that term is defined in MPPAA. See 29 U.S.C. § 1383(a). SGI denies that it is an "employer" responsible for any withdrawal payments and has added third party defendant Harley Davidson York, Inc. ("HDY"). SGI claims that HDY is the employer responsible for any liability. I directed the parties to brief the definition of "employer" before the case was sent to arbitration, and that issue has now been fully briefed and is ripe for determination.
The definition of "employer" under ERISA is very broad. It states:
(5) The term "employer" means any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.
29 U.S.C. § 1002(5).
SGI argues that this definition is inapplicable to MPPAA cases because it is, in fact, too broad. SGI argues that although this definition applies to ERISA, it does not apply to cases involving the MPPAA which is subchapter III, subtitle E of ERISA. I see no support for this position in the available caselaw or in the legislative history of MPPAA.
In enacting MPPAA, Congress sought to strengthen financially weak multi-employer pension plans. It was intended "to prevent employers from evading their obligations under collective bargaining agreements to contribute to multi-employer plans." Dorn's Transp. v. Teamsters Pension Trust Fund, 596 F.Supp. 350, 352 (D.N.J. 1984). This purpose would be served by construing the definition broadly.
Moreover, although there are no cases directly on point, a number of courts have applied the definition of § 1002(5) to cases arising under the MPPAA. See e.g., Dorn's Transp., 596 F.Supp. at 352; Miami Valley Carpenters v. United States Fidelity & Guarantee Co., 590 F.Supp. 61, 66 (S.D.Ohio 1984); Bennett v. Machined Metals Co., Inc., 591 F.Supp. 600, 608 (E.D. Pa.1984); Combs v. Indyk, 554 F. Supp. 573, 575 (W.D.Pa.1982). I therefore must conclude that the proper definition of an "employer" for the purposes of MPPAA is contained in § 1002(5). I will now turn to the facts of this case to determine which of the potential employers SGI or HDY is the employer liable for withdrawal payments.
SGI and HDY had a rather complicated relationship which developed over a number of years. It appears that SGI was engaged in supplying certain labor services to HDY and other companies. In connection with this business, SGI contracted with HDY to provide trucking services to HDY in 1973.[1] SGI entered into a collective bargaining agreement with Local 430 of the Teamsters in 1976 after the truckers at HDY voted to unionize. Both SGI and HDY claim that the other is the liable employer. For the reasons stated below, however, I have concluded that both are employers subject to MPPAA withdrawal liability.
*998 It is true that only SGI was a signatory to the collective bargaining agreement with Local 430. As such, only SGI was liable for wage payments and pension fund contributions in a technical sense. It also appears, however, that SGI was reimbursed fully by HDY. It is also true that only SGI negotiated with the union on behalf of HDY and that it also dealt with the union in processing grievances and other matters. Moreover, SGI actually took applications for the jobs at HDY at their Atlanta offices and supplied all prospective drivers to HDY.
Based on these facts alone, I would have to conclude that SGI is an employer for the purposes of this suit. The facts of this case, however, lead me to conclude that both HDY and SGI acted as employers and that it would be manifestly unjust to one or the other of them to impose liability on just one party. HDY entered into an agreement with SGI, in part because of the latter's expertise in the field of labor-management relations. It is not surprising, therefore, that SGI took over many aspects of the employer-employee relationship which are usually vested in the employer. HDY did, however, retain a significant level of involvement in the management of its trucking services. For example, HDY retained the ability to pick and choose the drivers it wanted from among those sent to it by SGI. HDY also retained the front-line responsibility for disciplinary actions against employees and formulated its own work rules. Most importantly, however, HDY retained the day-to-day control over the drivers sent to it by SGI.
SGI and HDY seem to take the position that only one of them can be an employer for the purposes of the determination of withdrawal liability. I do not think that this result is mandated by the terms of MPPAA or that it is wise from a policy standpoint. "The primary purpose of the legislation is to protect retirees and workers who are participants in such plans against the loss of their pensions. The Act is designated to foster plan continuation and growth because plan continuation and growth provide participants and beneficiaries [with the] greatest security against benefit loss. H.Rep. 869, 96th Cong., 2d Sess., 51 (1980) reprinted in 1980 U.S. Code Cong. & Ad. News 2918, 2919. This goal would best be served by construing the Act to allow for joint employer status.
What the defendants wish me to do is to decide which of them is more "employer-like" and to absolve the other of any responsibility at all. This is a result I cannot accept. I believe that the purpose of MPPAA is best served by exposing all parties that are "employers" to their legitimate withdrawal liability. Both SGI and HDY had enough control over the members of Local 430 to render them employers. I will therefore conclude that both HDY and SGI are employers for the purposes of this action and I will order that the case be sent to arbitration for the resolution of the amount of withdrawal liability.
NOTES
[1] The original contract had been entered into by American Stevedoring Corp., the predecessor of SGI and AMF Corp.'s York facility, the predecessor of HDY. I do not consider these facts relevant to my decision.
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07-02-0212-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 13, 2002
______________________________
IN RE JOHANSON LEE WATSON,
Relator
_________________________________
ORIGINAL PROCEEDING
_______________________________
Before BOYD, C.J., QUINN and REAVIS, J.J.
Johanson Lee Watson petitions the court for a writ of mandamus asking that we
either correct, reverse, or vacate the judgment of conviction allegedly entered in cause
number 9480, Wilbarger County, Texas or dismiss said cause. Furthermore, he believes
himself entitled to same because the trial court “never found [him] guilty of the indictment
9480, in open court . . . .” We deny the petition.
Mandamus issues to correct error when there is no adequate remedy by law. In re
Nolo Press/Folk Law Inc., 991 S.W.2d 768, 776 (Tex. 1999). Given that he questions the
legitimacy of his final felony conviction, the statutory remedy of habeas corpus is an
avenue available to him. See TEX . CODE CRIM . PROC . ANN . art. 11.07 (Vernon 2002)
(discussing that remedy). Indeed, the document he filed with us indicates that such a
proceeding was filed and apparently pends for disposition.1 Having a legal remedy
available to him, Watson has not satisfied the prerequisites for obtaining a writ of
mandamus. Accordingly, the writ is denied. See Ater v. Eighth Court of Appeals, 802
S.W.2d 241, 243 (Tex. Crim. App. 1991) (holding that since the applicant’s attempt to
vacate his felony conviction could be reviewed through an habeas proceeding initiated
under art. 11.07 of the Code of Criminal Procedure, mandamus could not issue).
Brian Quinn
Justice
Do not publish.
1
W atson does no t discuss the status of the habeas proc eed ing he initiated in W ilbarge r Co unty
encompassing the very same issue brought to us. Nor does he ask us to direct the trial court to act in any
manner, assuming that proceeding is pending.
2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4500
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE DARNELL TALLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cr-00296-BO-1)
Submitted: January 15, 2015 Decided: January 20, 2015
Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, dismissed in part, and remanded by unpublished
per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Darnell Talley pled guilty, pursuant to a plea
agreement, to conspiracy to commit Hobbs Act robberies, in
violation of 18 U.S.C. § 1951(a) (2012), and brandishing a
firearm during and in furtherance of one of those robberies and
aiding and abetting the same, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(ii) (2012). The court sentenced Talley to 171
months’ imprisonment—the top the advisory Guidelines range.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious grounds
for appeal but questioning whether the sentence is substantively
reasonable. Talley has filed a pro se supplemental brief,
requesting that we review the record to determine whether the
sentence is substantively reasonable and whether the district
court discriminated against him based on his race at the
sentencing hearing. The Government has moved to dismiss the
appeal based on the appellate waiver in the plea agreement. We
grant the motion in part and dismiss the appeal in part.
Talley’s claim of racial discrimination, however, is outside the
scope of the waiver; as to that claim, we affirm.
We review the validity of an appellate waiver de novo.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013). A defendant’s waiver is valid if
he agreed to it “knowingly and intelligently.” United States v.
2
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). “To determine
whether a waiver is knowing and intelligent, we examine the
totality of the circumstances, including the experience and
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
agreement.” United States v. Thornsbury, 670 F.3d 532, 537 (4th
Cir. 2012) (internal quotation marks omitted). Generally, if
the district court fully questions the defendant regarding the
waiver of his right to appeal during the plea colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). Our review of the record
confirms that, under the totality of the circumstances, Talley’s
waiver of his appellate rights was knowing and voluntary and,
therefore, the appellate waiver is valid and enforceable.
We will enforce a valid waiver so long as “the issue
appealed is within the scope of the waiver.” Copeland, 707 F.3d
at 528 (internal quotation marks omitted). Talley waived his
right to appeal his convictions and sentence, reserving only the
right to appeal from a sentence in excess of the advisory
Guidelines range established at sentencing. We conclude that
Talley’s and counsel’s challenge to the substantive
reasonableness of the within-Guidelines sentence falls within
the scope of the valid and enforceable appellate waiver.
3
The appellate waiver, however, does not preclude us
from considering Talley’s allegation that the district court
discriminated against him based on his race at the sentencing
hearing. Johnson, 410 F.3d at 151. Nevertheless, our review of
the sentencing transcript revealed no evidence substantiating
Talley’s allegation.
In accordance with Anders, we have reviewed the record
in this case and have found no unwaived and potentially
meritorious issues for appeal. To the extent Talley’s and
counsel’s claims are within the scope of the valid and
enforceable appellate waiver, we grant the Government’s motion
to dismiss the appeal. We otherwise affirm the district court’s
judgment.
We note, however, that although the district court
pronounced the correct restitution amount of $9434.44, the
judgment is incorrect in two respects: (1) the amount of
restitution owed to victim ASA Food Mart #3 should be $1134.94
instead of $1134.00; and (2) the total amount of restitution
should be $9434.44 instead of $9434.34. Accordingly, we remand
for correction of the judgment.
This court requires that counsel inform Talley, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Talley requests that a
petition be filed, but counsel believes that such a petition
4
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Talley. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART;
REMANDED
5
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565 So.2d 328 (1990)
Daniel Ray ERICKSON, a/K/a John William Dickey, Appellant,
v.
STATE of Florida, Appellee.
No. 88-0242.
District Court of Appeal of Florida, Fourth District.
June 13, 1990.
Rehearing Denied August 8, 1990.
*330 Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
Daniel Ray Erickson, Florida City, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee.
ESQUIROZ, MARGARITA, Associate Judge.
Following a non-jury trial, the defendant was convicted of indecent assault on a child under sixteen, pursuant to section 800.04(1), Florida Statutes (1987), and sentenced to fifteen years in the state penitentiary. He raises several points on appeal, challenging both his conviction and sentence. We affirm the conviction, but vacate the sentence and remand for resentencing.
ADMISSION OF PSYCHIATRIC TESTIMONY
The defendant claims that the trial court erred in admitting, over his objections, irrelevant and prejudicial expert psychiatric testimony in the state's case in chief. Dr. Mandri, a psychiatrist who examined the defendant on the day following his arrest, testified that his diagnosis of the defendant's condition was pedophilia and antisocial behavior, and that it was his belief that the defendant was not truthful during the psychiatric interview. Dr. Perfilio, who examined the defendant several months later solely to determine the defendant's competency to stand trial, disclosed certain factual admissions concerning the events of the crime made by the defendant in the course of the psychiatric interview. Dr. Perfilio also testified that the defendant told him that he had long had sexual *331 fantasies about female children, including oral, anal, and vaginal fantasies.[1]
The state argues that such testimony is relevant and therefore admissible in the state's case in chief to establish criminal intent by rebutting the defendant's claim that he only playfully touched the ten-year-old victim, and to establish the defendant's capacity to understand and voluntarily waive his Miranda rights as a predicate for the admission of his statement to a police detective.[2] In response, the defendant asserts that he has not contested the voluntariness of his statement to the detective, and that he never raised insanity as a defense or otherwise placed his mental condition in issue throughout the trial.
We agree with the defendant's position and hold that the trial court erred in admitting such expert testimony. In Francis v. State, 512 So.2d 280 (Fla. 2d DCA 1987), the defendant appealed his conviction and sentence for capital sexual battery and battery upon his three female nieces, ages eleven and younger. The district court of appeal held that the trial judge erred in permitting a child psychologist, called as an expert by the state, to render his opinion that the defendant had a personality characteristic of being attracted to children. In so ruling, the court cited the familiar principle that evidence of a person's character or a trait of character is inadmissible to prove that he acted in conformity with it on a particular occasion, except when such evidence is offered by the accused, or by the prosecution to rebut the trait. § 90.404(1)(a), Fla. Stat. (1987); Francis v. State, 512 So.2d at 282.
Even relevant evidence is inadmissible if its sole purpose is to show the defendant's bad character or propensity to commit the crime charged. Coler v. State, 418 So.2d 238, 239 (Fla. 1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983); Harris v. State, 183 So.2d 291 (Fla. 2d DCA 1966).[3] It is also well established that expert testimony may not be offered to vouch for the credibility of a witness. Tingle v. State, 536 So.2d 202, 205 (Fla. 1988); Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986), dismissed, 507 So.2d 588 (1987). It logically follows that expert testimony should not be allowed in a criminal trial to attack the credibility of the accused, who has a right not to become a witness in the first place.
Additionally, a court-appointed psychiatrist may testify as to his opinions or conclusions regarding the defendant's mental condition where such mental condition is in issue. But he may not disclose incriminating statements made to him by the defendant, or directly divulge facts about the crime that he may have elicited from the defendant in the course of the examination, unless the defendant first opens the door to such inquiry by his own presentation of evidence. See Parkin v. State, 238 So.2d 817, 820-22 (Fla. 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); McMunn v. State, 264 So.2d 868, 870 (Fla. 1st DCA 1972). See also Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Fla.R. Crim. P. 3.211(e). Thus, the defendant's Fifth Amendment rights are violated where the state is allowed to use the substance of his unwarned disclosures or statements made during a pretrial psychiatric examination as affirmative evidence against him at trial. Estelle v. Smith, 101 S.Ct. at 1874-75.[4]
*332 In the present case, the defendant did not introduce any psychiatric evidence, nor did he ever indicate that he might do so. He did not place his mental condition in issue at trial,[5] nor did he challenge the knowing and voluntary nature of his statement, which was admitted at trial virtually without objection through the interrogating detective's testimony. Therefore, because the challenged psychiatric testimony was not truly relevant to any issue at trial, the trial court erred in admitting it.
ADMISSION OF TESTIMONY CONCERNING OTHER CRIMES
The defendant also claims that the trial court erroneously admitted evidence of collateral crimes through the testimony of one Mr. Conicelli and his nine-year-old daughter, who revealed their observations of acts committed by the defendant on another little girl named Sarah at the Parents Without Partners picnic, where it is claimed that the acts committed on the ten-year-old victim herein occurred. In particular, Mr. Conicelli explained that while in the water, the defendant lifted Sarah, held her with his hand touching her private parts for about one or two minutes, and then threw her up in the air and into the water. The defendant argues that such testimony is inadmissible because (a) the state did not provide him with a notice of intent to offer evidence of other criminal offenses as required by section 90.404(2)(b), Florida Statutes (1987), and (b) such testimony lacks relevancy because the acts committed on Sarah are dissimilar to the acts claimed to have been committed on the victim, thereby serving only to show bad character and propensity to commit the crime charged. The state takes issue with the defendant's characterization of the evidence, asserting that it is admissible as inseparable crime evidence under Tumulty v. State, 489 So.2d 150 (Fla. 4th DCA), rev. denied, 496 So.2d 144 (Fla. 1986), and other cases following the same logic.
We agree with the state's position. Both Sarah and the victim were allegedly assaulted in the course of the day's activities at the Parents Without Partners beach picnic they both attended. The manner in which the defendant touched young Sarah in her private parts by lifting her up in the water, holding her, and then throwing her, as described by Mr. Conicelli, is remarkably similar to the way in which the defendant allegedly lifted the ten-year-old victim while in the water, holding her with his hand on her buttocks area, as she described it. Additionally, the testimony of Mr. Conicelli and his nine-year-old daughter is somewhat cumulative to a portion of the account given by the victim, who at one point disclosed, without objection, that she later returned to the water accompanied by the defendant, by Sarah and another girl, who "wanted to be picked up and they were diving off. They were just jumping off." Indeed, the incident with Sarah led directly *333 to the defendant's apprehension at the scene, for immediately after observing the defendant touch Sarah, the Conicellis alerted Sarah's mother, who in turn summoned another member in charge of the group, who in turn confronted, chased, and apprehended the defendant a short distance away.
Accordingly, we hold that the testimony concerning the defendant's touching of Sarah's private parts is admissible because that act is inseparably linked in time and circumstances to the evidence of defendant's acts upon the ten-year-old victim herein. Such testimony is simply relevant evidence which is "inextricably intertwined" in the scenario of the crime charged, it all having occurred in the course of the beach day at the Parents Without Partners picnic. See Kelly v. State, 552 So.2d 1140, 1141-42 (Fla. 5th DCA 1989); Tumulty v. State, 489 So.2d at 153. See also Austin v. State, 500 So.2d 262 (Fla. 1st DCA 1986), rev. denied, 508 So.2d 13 (Fla. 1987). This court has held that the characteristics of inseparable crime evidence are distinct from those of collateral crime evidence, and such evidence is admissible for different reasons and under a different section of the Evidence Code, section 90.402, Florida Statutes (1987). Therefore, the state need not comply with the ten-day notice provision of section 90.404(2)(b) as a prerequisite to offering inseparable crime evidence. Platt v. State, 551 So.2d 1277 (Fla. 4th DCA 1989); Tumulty v. State, 489 So.2d at 153. The trial court did not err in admitting such testimony.
ADMISSION OF DEFENDANT'S STATEMENT TO THE VICTIM
The defendant challenges the trial court's admission of a statement claimed to have been made by him to the victim some six hours after the actual conduct charged fondling the victim's buttocks allegedly occurred, on the basis that such statement injects into the trial evidence of criminal conduct not charged in the information. As disclosed by the victim, the defendant uttered the statement when he invited her to go in the water later again that afternoon, telling her "[D]o you want to do like couples do in the water," and "[I]t won't hurt and don't tell your father." The victim interpreted the remark as an invitation to "make love."
We reject the defendant's argument and hold that the trial court properly admitted the defendant's statement as an admission from which guilt for the crime charged could be inferred, pursuant to section 90.803(18), Florida Statutes (1987), or as relevant to show the defendant's state of mind under section 90.803(3)(a), Florida Statutes (1987). Jackson v. State, 530 So.2d 269, 272 (Fla. 1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1005 (1989); Pieczynski v. State, 516 So.2d 1048, 1051 (Fla. 3d DCA 1987). As defined by the charge in the information,[6] the state was required to prove that the defendant fondled the victim's buttocks with a lewd and lascivious intent, in violation of section 800.04(1), Florida Statutes (1987). See Egal v. State, 469 So.2d 196, 198-99 (Fla. 2d DCA), rev. denied, 476 So.2d 673 (Fla. 1985). Indeed, the theory of defense, stressed repeatedly in opening and closing arguments and during cross examination of the state's witnesses, was that while the defendant did touch the victim's buttocks in the water, he did so playfully and innocently while helping her dodge waves.
In determining if the statement is admissible, it is irrelevant that the statement may have been uttered some six hours following the actual conduct charged rather than contemporaneously with it, for an admission from which guilt may be inferred is not rendered inadmissible because of the fact that it is made after the commission of the charged offense. See Swafford v. State, 533 So.2d 270 (Fla. 1988), cert. *334 denied, ___ U.S. ___, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989); Darty v. State, 161 So.2d 864, 870 (Fla. 2d DCA), cert. denied, 168 So.2d 147 (Fla. 1964). According to the victim, the defendant made the statement at the picnic itself on the very same day and at the same location as the actual conduct charged took place. The statement was part and parcel of the crime charged and it was clearly admissible. The trial court was correct in so ruling.
ISSUES RAISED IN SUPPLEMENTAL BRIEF
The defendant has filed a pro se supplemental brief raising additional points on appeal. One of the issues he raises is the alleged denial of his Sixth Amendment right to the effective assistance of counsel. This issue, however, cannot be sufficiently determined by us from the record as it now stands. Generally, such claims are not reviewable on direct appeal, but are more properly raised by motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Kelley v. State, 486 So.2d 578, 585 (Fla.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986); Cumper v. State, 506 So.2d 89 (Fla. 2d DCA 1987); Fletcher v. State, 506 So.2d 90 (Fla. 2d DCA 1987).
The defendant also challenges the use of his in-court identification by the victim at trial, claiming that it is tainted by an impermissibly suggestive pre-trial photographic-identification procedure. He has, however, failed to properly preserve this issue for appellate review. It is true that his attorney did file, on the day of trial, a motion to suppress the identification evidence as unnecessarily suggestive.[7] Indeed the trial transcript shows that the prosecutor and defense counsel stipulated on the record that the trial judge could hear and determine the motion to suppress during trial. But the transcript also shows that at trial the defendant failed to present any evidence, through cross examination or otherwise, relevant to the challenge.
It is elementary that when the court hears a motion to suppress evidence on its merits, the defendant is required to present evidence supporting his position, and the state may then offer rebuttal evidence. Fla.R.Crim. P. 3.190(h)(3); State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975). Additionally, it is the appellant's burden to establish error on appeal by furnishing a sufficient record of trial proceeding substantiating such error. See, e.g., State v. Anderson, 329 So.2d 424 (Fla. 3d DCA 1976). Moreover, the defendant did not object on any ground when the victim identified the defendant in court. Therefore, in the absence of an objection to the admissibility of such identification testimony at trial, the issue is not preserved for appellate review. Malloy v. State, 382 So.2d 1190, 1192 (Fla. 1979); Snead v. State, 415 So.2d 887, 890 (Fla. 5th DCA 1982).
We have examined the other points raised in the defendant's supplemental brief. Except for the sentencing guidelines issue discussed below, we find the remaining points to be without merit.
HARMLESS ERROR ANALYSIS
A review of the record in this case leads us to conclude that the error arising from the improper admission of expert psychiatric testimony is harmless. Application of the harmless error test requires a close examination of the permissible evidence on which the trier of fact could have legitimately relied, as well as an even closer examination of the impermissible evidence which might have possibly influenced the verdict. State v. Diguilio, 491 So.2d 1129, 1138 (Fla. 1986). It is well settled that even incorrectly admitted evidence is deemed harmless and may not be grounds for reversal when it is essentially the same as or merely corroborative of other properly considered testimony at trial. Clausell v. State, 548 So.2d 889, 890-91 (Fla. 3d DCA 1989). See Burr v. State, 550 So.2d 444, 446 (Fla. 1989). Cf. Pringle v. State, 553 So.2d 1304, 1305 (Fla. 3d DCA *335 1989). An error resulting from the admission of evidence at trial is harmless if, upon review of the record, it can be concluded beyond a reasonable doubt that there is no reasonable possibility that the erroneous admission of evidence affected the verdict. Clausell v. State, 548 So.2d at 890; State v. DiGuilio, 491 So.2d at 1138-39.
The record discloses that there was ample evidence, properly admitted, establishing the defendant's guilt for the crime of indecent assault on a child under sixteen. The victim, who had sufficient opportunity to observe her assailant closely throughout the course of an entire day in broad daylight, identified the defendant in court without hesitation as the person who touched her in the buttocks and invited her to "make love." Additionally, Mr. Conicelli and his nine-year-old daughter both identified the defendant in court as the person they observed touching Sarah's private parts in the water. Immediately upon witnessing this conduct, they singled the defendant out to Sarah's mother, who in turn summoned Mitch Snyderman, a member in charge of the group, who then confronted the defendant and asked him to produce his Parents Without Partners membership card. It was at this point, that the defendant took off running "like a bat out of hell" from the picnic site, heading down the beach to the boulevard and into an ice cream store.[8] Moments later, after a milelong chase, Mr. Snyderman found the defendant hiding on the side of the store and quickly returned him to the picnic site. Mr. Snyderman identified the defendant in court as the person he confronted, chased, and apprehended.
On the following day, the defendant gave a statement to a police detective, the admissibility of which he has not challenged. The defendant told Detective Gooding that he had a "real bad problem," which he admitted was a sexual problem. He told him that he was divorced from his wife, had three children in Mississippi, and conceded that the bad problem had a relationship to his divorce. The defendant stated that he first applied for membership in Parents Without Partners just a few days prior to the picnic, and admitted that he lied to them in order to gain entry into the group, leading them to believe that his children would be back in Florida with him. The defendant admitted touching several of the girls at the picnic, claiming that while they were all in the water, he could have accidentally placed his hands in their buttocks or breast area. He insisted, however, that he would never do so knowingly, adding that he could have exposed himself, but only accidentally. Then he explained that his role with the children in this case was one of teacher, not one of molester, saying that "he likes to teach children about sex." Concerning this particular incident, he stated that the girls in this case approached him and asked him about sex, and that he merely complied and explained to them what sex and the sexual organs were.[9]
All of the outlined evidence, properly admitted at trial, was to a large degree cumulative to the inadmissible testimony furnished by the two psychiatrists, who revealed the defendant's sexual preference towards female children, disclosing in the process certain factual admissions made by the defendant about his activities with the children similar to the admissions properly received through Detective Gooding's testimony. On the basis of this analysis, we conclude beyond a reasonable doubt that there is no reasonable possibility that the erroneous admission of evidence affected the trial court's verdict. See Clausell v. State, 548 So.2d at 890; State v. DiGuilio, 491 So.2d at 1138-39. Accordingly, we hold that the error was harmless, and we affirm the judgment of conviction.
*336 SENTENCING GUIDELINES
We must, however, vacate the sentence and remand for resentencing because the sentencing guidelines scoresheet used at the sentencing hearing was incorrectly calculated. Compiled as part of the presentence investigation report by a probation and parole office, the scoresheet reflects a total score of 469 points and calls for a sentence in the range of seventeen to twenty-two years. At the sentencing hearing, both the prosecutor and the defendant's attorney took issue with the accuracy of the point score on the scoresheet. The prosecutor claimed that the scoresheet failed to account for all of the defendant's prior convictions, and that the score was therefore too low. In turn, defense counsel argued that a prior felony conviction was improperly scored as a first degree felony punishable by life, rather than as a third-degree felony, resulting in a higher point score than justified by defendant's record of prior convictions. It was defense counsel's position that the proper sentencing range was from nine to twelve years, and that the court should therefore sentence the defendant to nine years. Declining to correct the scoresheet, the trial court proceeded to sentence the defendant to the statutory maximum of fifteen years incarceration, as urged by the state, which in any event fell below the scoresheet's recommended range of seventeen to twenty-two years.
The committee notes to Florida Rule of Criminal Procedure 3.701(d)(1) place on the sentencing court the ultimate responsibility of assuring that scoresheets are accurately prepared. Fla.R.Crim. P. 3.701(d)(1), Committee Notes. In order to reach a fully informed sentencing decision, the trial court must have the benefit of an accurately prepared scoresheet. Dawson v. State, 532 So.2d 89, 90 (Fla. 4th DCA 1988). See Ratushinak v. State, 517 So.2d 749, 753 (Fla. 4th DCA 1987), rev. denied, 525 So.2d 880 (1988); Hembree v. State, 519 So.2d 1138, 1139 (Fla. 2d DCA 1988). This requirement applies even if the trial court expresses an intention to impose the maximum statutory sentence at the sentencing hearing. See Davis v. State, 493 So.2d 82, 83 (Fla. 1st DCA 1986). The rationale for the rule is that the trial court might have imposed a different sentence had it had the benefit of a corrected scoresheet. See Dawson v. State, 532 So.2d at 90. Cf. Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984). Thus, when a discrepancy concerning the scoresheet is brought to the sentencing court's attention, the court should resolve the discrepancy and correct the scoresheet to reflect the accurate numbers. See Mitchell v. State, 507 So.2d 686, 687 (Fla. 1st DCA 1987).
Comparing the prior convictions actually scored with the defendant's record of prior convictions, as they appear on the PSI report, it becomes evident that the scoresheet used by the trial court at sentencing was indeed incorrect for the reasons urged by both the state and the defense. Florida Rule of Criminal Procedure 3.701(d)(5)(a)(2) requires that out-of-state convictions obtained under a particular statute are to be assigned the score for the analogous or parallel Florida statute. The elements of the out-of-state crime, not the stated degree or the sentence imposed, control in the determination of whether there is a Florida statute analogous to the statute proscribing the out-of-state crime. Forehand v. State, 537 So.2d 103 (Fla. 1989), aff'g 524 So.2d 1054 (Fla. 1st DCA 1988). See also Rotz v. State, 521 So.2d 355 (Fla. 5th DCA 1988). Included in the defendant's prior record is a California conviction for child molesting, which shows a disposition of "one to life." Apparently on the basis of such disposition, the California conviction was scored as a first degree felony punishable by life. Under Forehand, this method of determining the degree of the prior offense is clearly incorrect.
It is, however, unclear from the record pursuant to which California statute the defendant was convicted of child molesting. Accordingly, it is appropriate to remand for resentencing to require the state to either substantiate the appropriate California statute under which the conviction was obtained, which is then to be analogized to Florida law, or else for rescoring the prior *337 felony conviction as a third-degree felony. See Rotz v. State, 521 So.2d at 356; Fla.R. Crim. P. 3.701(d)(5)(a)(3).
Additionally, the defendant's attorney conceded that at least one scorable prior burglary conviction was completely omitted from the scoresheet. Indeed, a review of the defendant's prior record as evidenced by the PSI report, discloses that several other out-of-state convictions were altogether omitted from the scoresheet, even though they show "dispositions," as defined by Florida Rule of Criminal Procedure 3.701(d)(5)(a), and may therefore be properly scorable. See Spann v. State, 550 So.2d 164, 166 (Fla. 2d DCA 1989); Vandeneynden v. State, 478 So.2d 429 (Fla. 5th DCA 1985).
We therefore affirm the judgment of conviction of indecent assault on a child under sixteen, but vacate the sentence and remand for resentencing based on a corrected sentencing guidelines scoresheet in accordance with the views expressed herein.
POLEN, J., concurs.
GLICKSTEIN, J., concurs in part and dissents in part with opinion.
GLICKSTEIN, Judge, concurring in part and dissenting in part.
I agree that the conviction should be affirmed. What is more, I believe that the defendant has not shown error in his sentence, and that reduction would not be in order.
I am troubled both by the majority's failure to address the defendant's long history of pedophilic activities and the degree to which this history should inform the trial court's decision on sentencing. In arguing at sentencing for the statutory maximum of fifteen years, the prosecutor urged the court to consider this record:
[PROSECUTOR]: Judge, there was a recommendation in the PSI for MDSO treatment; however, this defendant here already received MDSO in California and therefore he is not entitled to it under the Florida statutes, to receive it again.
THE COURT: He wouldn't be until the end of the sentence anyway.
MDSO refers to Mentally Disordered Sex Offenders as defined by section 917.012, Florida Statutes (1987).
Although incarceration is not treatment, it is clear that treatment has not effected a cure in this case, if indeed it ever can. In the interest of preventing future victimization of our children, then, incarceration for the statutory maximum period is appropriate. I would affirm appellant's sentence as entered by the trial court.
NOTES
[1] Although to a lesser extent, Dr. Mandri also testified to a couple of factual admissions made by the defendant.
[2] We note that Dr. Perfilio's examination took place at South Florida State Mental Hospital after the defendant was committed as incompetent to stand trial. Therefore, Dr. Perfilio's testimony, based as it was on said psychiatric examination, could have had no bearing on the defendant's capacity to make a knowing and intelligent waiver of rights some six months earlier when he gave the statement.
[3] In Harris, the court held that it was error to permit both a Reverend and the victim to testify, at defendant's trial for committing a crime against nature, that the defendant told the Reverend in the victim's presence, shortly after the commission of the crime, that he was a homosexual who had had sexual relations with many prominent men.
[4] While defense counsel objected to the admission of the psychiatrists' testimony on various grounds, including lack of relevancy, prejudice, and violation of the psychiatrist-patient privilege, he failed to object on Fifth Amendment grounds. On appeal, he has not specifically argued a Fifth Amendment violation. Thus, he has failed to properly raise or preserve a Fifth Amendment challenge to the experts' testimony for purposes of appellate review. We do acknowledge that at one point during the discussion at trial concerning the admissibility of the experts' testimony, the defendant himself did complain to the trial judge that "[t]here's also been a violation of Miranda rights because they didn't give me no Miranda rights," but he has not reasserted such a violation in his brief.
[5] It is true that it was the defendant, and not the state, who first moved for the appointment of an expert, but he did so pursuant to the provisions of Florida Rule of Criminal Procedure 3.216(a). That section specifically preserves the attorney-client privilege in "matters related to the expert," who is appointed solely for the purpose of examining the indigent defendant in order to assist his public defender in the preparation of his defense, authorizing the expert to report to defense counsel only. Fla.R.Crim. P. 3.216(a); State v. Hamilton, 448 So.2d 1007 (Fla. 1984). It is clear therefore that a defense request for an expert under rule 3.216(a), does not, by definition, operate to waive any of the defendant's rights, nor does it open the door for the state to present other psychiatric evidence. See, e.g., Pouncy v. State, 353 So.2d 640 (Fla. 3d DCA 1977).
[6] Under Count II of the information the state charges that the defendant "on the 21st day of September, A.D. 1986, ... did handle, fondle or make an assault upon [the victim], a child under the age of sixteen (16) years in a lewd, lascivious or indecent manner, to-wit: did fondle the buttocks of [the victim]," in violation of section 800.04(1). The state nolle prossed Count I, attempted sexual battery on a child, prior to trial.
[7] The defendant himself had also earlier attempted to raise this same ground in the trial court when he filed a pro se "motion to dismiss" the information on the grounds that the pre-trial photographic-identification procedure was unnecessarily suggestive.
[8] In Mitch Snyderman's words: "I said I would like to see his card. At that time, he was going through his wallet, but when the other mother said, I want him arrested; he was doing something to my daughter I don't know her exact words, but he took off like a bat out of hell."
[9] According to Detective Gooding, the defendant also told him that "he likes to work in day care centers and likes to be around children," and that he would "just hang out in parks and watch children on swings and things like that."
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906 F.2d 302
Steve L. HUNTER, Petitioner-Appellee,v.Richard CLARK and Indiana Attorney General, Respondents-Appellants.
No. 89-2594.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 9, 1990.Decided July 3, 1990.Order on Grant of RehearingSept. 17, 1990.
Robert W. Hammerle, Allen, Baratz, Conway & Hammerle, Indianapolis, Ind., for petitioner-appellee.
Kirk A. Knoll and Ronald J. Semler, Deputy Attys. Gen., Office of the Atty. Gen., Indianapolis, Ind., for respondents-appellants.
Before COFFEY, FLAUM and MANION, Circuit Judges.
COFFEY, Circuit Judge.
1
Richard Clark, Superintendent of the Indiana State Prison, and the Indiana Attorney General appeal the district court's grant of Steve L. Hunter's petition for writ of habeas corpus. The district court granted the petition for habeas corpus on the ground that the Indiana state trial court's refusal to provide Hunter with his requested instruction that the jury make no adverse inference from Hunter's failure to testify violated Hunter's privilege against self-incrimination under the fifth and fourteenth amendments of the United States Constitution. We reverse.
I.
2
At approximately 11 a.m. on January 24, 1984, Steve L. Hunter entered the Indiana National Bank branch located at 62nd Street and Michigan Road in Indianapolis, Indiana. At this time Hunter was unmasked and inquired of bank teller Phyllis Jones concerning the possibility of opening a savings account. Mrs. Jones invited Hunter to take a seat, but instead, he walked directly into the bank manager's office, pointed a silver handgun at the manager and informed him that a robbery was occurring. Hunter then pulled a ski mask over his face. Phyllis Jones, a bank teller, had an opportunity to observe Hunter's face before he donned the mask and was thus able to identify Hunter at trial as the man who wielded the silver handgun. Shortly thereafter, Hunter's two accomplices, armed with shotguns, burst into the bank and ordered all present to touch neither buttons nor alarms. Hunter ordered the bank manager, Dewey Cain, to enter the tellers' stations and remove money from the tellers' drawers. Mr. Cain removed approximately $14,000 from three tellers' drawers and placed it in a pillowcase provided by Hunter. Included in the loot was a dye pack and "bait money" from Phyllis Jones' drawer. When the "bait money" was removed from the teller's drawer, it set off an alarm and activated the bank's cameras. In addition, when the "bait money" left the bank, a dye pack with a triggering device hidden in the bait money was automatically activated by a radio and exploded as the dye pack left the bank premises. Red dye was sprayed over the cash the robbers had stolen.
3
When Hunter and his two accomplices left the bank, they took car keys from one of the bank's customers. They forced the bank's assistant manager at gunpoint to give up his car keys and to precede them out the door. The men stole a van parked in the bank's parking lot with its engine running and left the crime scene. Later, the robbers abandoned the van and attempted to steal another vehicle, but failed when that car got stuck in a ditch. Shortly thereafter, they were successful in stealing a different car after forcing the owner from his car with a "nickel-plated" pistol.
4
Later that day, Hunter, along with his co-defendant Charles Hatcher, and a third man named Lynell Beard, went to the home of a friend, Howard Smith. Hatcher had earlier borrowed a chrome pistol and a shotgun from Smith in exchange for a portion of the money to be taken in the robbery. At this time Hunter, Hatcher and Beard dumped the loot, stained with red dye, on the table in Smith's house and proceeded to count the money. While counting the money, the men heard and observed a TV news account of the robbery that included a statement by a witness who recounted that he had been beaten, robbed and forced from his car. At this time Hunter stated to Beard, Hatcher and Smith that the witness interviewed on the news had not been touched and was lying about the details of that day's events and admitted further that he had pulled a pistol on the bank manager. Each of the three men gave Smith $100 ($300 total), all of which was stained with red dye. Smith and another accomplice, Hunter's cousin, Anthony Thompson, attempted to remove red dye stains from the money but were unsuccessful. At trial Thompson also testified that Hunter had telephoned him on the morning of the robbery and asked him whether he wished to "make some money," but Hunter refused because of concerns over his probation status from a previous robbery conviction.
5
On the following day, January 25, 1984, Marion County Sheriff Sergeant Ron Beasley arrested Smith in his automobile. Smith had money stained with red dye in his possession. During questioning, Smith revealed his home address to Sergeant Beasley. After Smith was transported to the Marion County Sheriff's Department, Sergeant Beasley proceeded directly to Smith's home where he met Felicia Wilson, the lessee of the apartment. Beasley advised her that the police "believed that there was evidence from this bank robbery that could be obtained in a search of her apartment," and asked for permission to conduct a search of the premises. Wilson signed a waiver permitting the search. In the course of the search of the apartment, police came upon a semi-automatic rifle, a sawed-off shotgun, a silver revolver and a used bar of soap stained with red dye.
6
Hunter was subsequently charged with five counts of robbery and one count of confinement1 and was tried jointly with a co-defendant, Charles Hatcher, in an Indiana state court. During the trial Hunter did not take the stand in his own defense. At the close of the evidence, Hunter requested that the jury be instructed that they were not to make any adverse inferences from Hunter's failure to testify. However, co-defendant Hatcher requested that this instruction not be given. The state court judge at trial, confronted with this dilemma, offered to sever the defendants', Hunter and Hatcher's, trials in order that he might accommodate their respective requests for conflicting jury instructions. The trial judge, upon being forced to make a choice between the requests of the individual co-defendants, elected not to give the jury instruction concerning the drawing of the "no adverse inference" Hunter requested. The jury convicted Hunter of five counts of robbery and one count of confinement. Hunter was sentenced to six consecutive 20-year terms of imprisonment for each of the five robbery counts and the confinement count (120 years total).
7
Hunter appealed his convictions and sentences to the Indiana Supreme Court. In affirming Hunter's convictions, the Indiana Supreme Court rejected Hunter's allegations of error concerning the trial court's refusal to give his "no adverse inference" instruction. After recounting the facts of the case, including the divergent requests of the jointly tried co-defendants regarding the furnishing of a "no adverse inference" instruction, the Indiana court stated:
8
"By his actions here, Hunter placed the trial court on the horns of a dilemma which made it impossible for it to refrain from committing error. The trial court gave Hunter the opportunity to resolve this dilemma by offering to sever the trials as Hatcher had, in fact, requested, but Hunter declined to accept that alternative. He therefore has waived any error the court might have committed in resolving the matter as he did."
9
Hunter v. State, 492 N.E.2d 1067, 1069 (Ind.1986).
10
Two years later, on October 26, 1988, Hunter filed this habeas corpus petition alleging that "his Fifth Amendment rights were violated when the state trial court refused to give his tendered 'failure to testify' instruction." Hunter v. Duckworth, 741 F.Supp. 1338, 1340 (N.D.Ind.1989). The district court granted Hunter's habeas corpus petition, ruling in contravention of the Indiana Supreme Court's decision, and held that there was no waiver of the "failure to testify" or "no adverse inference" instruction issue because "[t]his court cannot find an Indiana court rule or statute which requires a defendant to move for a severance or to accept an offer of severance in order to preserve the 'failure to testify' issue." Id. at 1341. The district court went on to hold that Hunter's federal fifth amendment rights were violated when the state trial court chose to enforce his co-defendant's state constitutional right not to have a "failure to testify" instruction given over Hunter's federal constitutional right to such an instruction.
11
"When a state constitutional right unavoidably conflicts with a federal constitutional right, the state right must give way to the federal right under the mandates of the Supremacy Clause of the Constitution of the United States. See, e.g., Reynolds v. Sims, 377 U.S. 533, 584 [84 S.Ct. 1362, 1393, 12 L.Ed.2d 506] (1964). Consequently, in this joint state trial, the petitioner's Fifth Amendment right to request a 'failure to testify' instruction should have prevailed over co-defendant Hatcher's state constitutional right not to have the instruction given. See Lucas [v. State, 499 N.E.2d 1090, 1093 (Ind.1986) ] (where the Supreme Court of Indiana held the same). Thus, the petitioner's Fifth Amendment rights were violated when the state trial court refused to give his tendered 'failure to testify' instruction."
12
Hunter, at 1342. Lastly, the district court held that the state trial court's failure to provide the jury with the "no adverse inference" instruction was not "harmless error" because "the evidence supporting [Hunter's] convictions is not 'overwhelming.' " Id. at 1343. The court believed that the facts that only one witness positively identified Hunter as one of the bank robbers and the state's extensive reliance upon accomplice testimony of accessories after the fact necessitated a conclusion that the evidence in favor of Hunter's conviction was not overwhelming. Reasoning further he held that "the state trial court's error in refusing to give the requested 'failure to testify' instruction is not harmless beyond a reasonable doubt." Id. at 1345.II.
13
In Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981), the United States Supreme Court held that "[t]he principles enunciated in our cases construing [the privilege against compulsory self-incrimination] lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a single 'no adverse inference' jury instruction when requested by defendant to do so." Conversely, the Supreme Court has held that "the giving of [a no-adverse inference] instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments." Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S.Ct. 1091, 1095-96, 55 L.Ed.2d 319 (1978) (footnote omitted, emphasis added). Nonetheless, the Supreme Court in Lakeside also noted that: "It may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law." Id. at 340, 98 S.Ct. at 1095. Prior to Lakeside the Indiana Supreme Court had guaranteed criminal defendants the right not to receive a "no adverse inference" instruction if they so chose. Gross v. State, 261 Ind. 489, 306 N.E.2d 371, 372-73 (Ind.1974).2 Following Lakeside, the Indiana Supreme Court explicitly grounded this right in the Indiana Constitution, holding:
14
"With due regard for our responsibilities as state judges, we have re-examined our holding in Gross and Hill [v. State, 371 N.E.2d 1303 (Ind.1978) ] in light of reasoning and evaluation of interests revealed in Lakeside. Having done so, we remain convinced that the basic premises of this Court's reasoning in Gross and Hill are sound and that the mechanism erected therein for the accused to choose whether to have the jury given an instruction regarding his failure to testify is a requisite for full realization of the right of each citizen granted by Article I, Section XIV [of the Indiana Constitution] that 'no person, in any criminal prosecution, shall be compelled to testify against himself.' "
15
Priest v. State, 270 Ind. 449, 386 N.E.2d 686, 689 (Ind.1979). Therefore, "in Indiana the choice of whether or not the trial court instructs the jury on the defendant's failure to testify belongs to the defendant." Parker v. State, 425 N.E.2d 628, 630 (Ind.1981).
16
Obviously, this type of problem arises only where there is a multiple-defendant trial and the defendants have divergent interests with respect to the "no adverse inference" instruction. In a multiple-defendant trial, when the court cannot accommodate the conflicting interests involved in one defendant's federal constitutional right to receive a "no adverse inference" instruction and another defendant's state constitutional right not to receive such an instruction, the Indiana Supreme Court has properly determined that the "Fifth Amendment right to an instruction warning the jury not to draw any adverse inferences from his silence must prevail over the right that this Court has granted under the Indiana Constitution to decide whether it suits [a defendant] to have such an instruction given or not." Lucas v. State, 499 N.E.2d 1090, 1093 (Ind.1986).
17
In Hunter's case, unlike Lucas, the state trial court opted to honor the request of Hunter's co-defendant that it refrain from providing a "no adverse inference" instruction rather than Hunter's request for such an instruction. We are convinced that, under the facts of this case, the court acted properly. Both the Indiana Supreme Court3 and the district court4 made separate findings and stated that the Indiana trial court offered Hunter the opportunity to have his case severed from his co-defendant's, but he refused severance. Based upon our examination of the record, we conclude that these factual determinations were free from clear error. See Walton v. Lane, 852 F.2d 268, 272 (7th Cir.1988) (state court factual determinations are presumed correct in a federal habeas corpus proceeding and a "federal court[ ] [may] make a contrary finding of fact only if 'on a consideration of ... the record as a whole [the federal court] concludes that such factual determination is not fairly supported by the record.' 28 U.S.C. Sec. 2254(d)(8)."). Presented with the need to reconcile two jointly tried defendants' conflicting rights, the state trial court devised and offered a logical and legally acceptable solution (severance) that would have protected both Hunter's federal constitutional right to receive a "no adverse inference" instruction and his co-defendant's right not to receive such an instruction. In failing to agree to the trial court's proposed solution, Hunter, the petitioner-appellee, effectively waived his right to complain and his right to a "no adverse inference" instruction. The Sixth and Eighth Circuits have observed that a " 'trial judge can not be faulted for any trial mishaps that he offers to and could correct.' " United States v. Feroni, 655 F.2d 707, 712 (6th Cir.1981) (quoting United States v. Splain, 545 F.2d 1131, 1133 (8th Cir.1976)). We agree with the Sixth and Eighth Circuits and hold that the state trial court's offer of a separate trial would have allowed Hunter to receive his requested "no adverse inference" instruction and would have avoided any prejudice accompanying his failure to receive such an instruction in his joint trial. As the Supreme Court and this court have often stated: "The Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); Dortch v. O'Leary, 863 F.2d 1337, 1346 (7th Cir.1988).
18
The dissent argues that "the trial judge deviated from established Supreme Court precedent and in doing so violated Hunter's constitutional right to receive the 'no adverse inference' instruction." Dissent at 311. Interestingly, the dissent admits that: "The majority is correct in suggesting that the 'court devised and offered a logical and legally acceptable solution (severance) that would have protected both Hunter's federal constitutional right to receive a no adverse inference instruction and his co-defendant's [state] right not to receive an instruction.' " Dissent at 312 (quoting Majority Opinion at 306-307). The dissent also agrees that: "Faced with the competing demands of the defendants in this case, the trial court's remedy of severance was [a] reasonable one since it would have accorded each of the defendants what they sought." Dissent at 311. In light of the dissent's recognition that the trial court's proposed severance would have preserved Hunter's constitutional right to a "no adverse inference" instruction, we have great difficulty understanding the dissent's position that the Supreme Court's decisions in Carter, Lakeside and James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1981), should be construed to require a conclusion that a defendant has a right to insist upon his preferred means of vindicating his constitutional right (reception of the "no adverse inference" instruction in the joint trial).
19
The effect of the dissent's reasoning is to extend the right to a "no adverse inference" instruction beyond a simple right to receive such an instruction to a right to refuse any trial court procedural solution to preserve the right to a "no adverse inference" instruction through a trial mechanism that is not of the defendant's preference. In support of its position regarding the "absolute" nature of a defendant's right to a "no adverse inference" instruction, the dissent at page 310 quotes the first half of a sentence from James v. Kentucky, 466 U.S. at 350, 104 S.Ct. at 1836: "The Constitution obliges the trial judge to tell the jury, in an effective manner, not to draw the inference if the defendant so requests...." The dissent, however, omits the second half of the Supreme Court's sentence in James which modifies this right with the statement "but it [the Constitution] does not afford the defendant the right to dictate, inconsistent with state practice, how the jury is to be told." James, 466 U.S. at 350, 104 S.Ct. at 1836 (emphasis in original). In our view, Hunter's refusal of the trial court's determination that Hunter would receive his right to a no adverse inference instruction in a "severed" proceeding represents an attempt to dictate the specific manner in which his right to a no adverse inference instruction would be vindicated, an attempt that does not constitute a legitimate part of Hunter's federal constitutional right to such an instruction. We also note that none of the "clearly established Supreme Court precedent"5 to which the dissent refers--namely, James, Carter, and Lakeside--involved joint trials of co-defendants making conflicting requests as to the "no adverse inference" instruction. We therefore refuse to condone Hunter's blatant attempt to orchestrate the state trial proceedings to his own benefit. Indeed, it is apparent that Hunter was trying to manipulate the trial court into committing reversible error in order to obtain a new trial. We will not be a party to such callous disregard for the overburdened dockets of both the state and federal courts. The trial court offered Hunter a viable solution to his request for a "no adverse inference" instruction, and we are aware of no case requiring a trial court to comply with a manipulative defendant's stated preference of the means for preserving his or her constitutional rights.6 Thus, we hold that the state trial court did not violate Hunter's fifth amendment rights.
III.
20
Even if we agreed that the state trial court's failure to provide a no adverse inference instruction deprived Hunter of rights protected under the federal Constitution, which we do not, there would remain a question of whether such an error would justify the reversal of Hunter's conviction. The United States Supreme Court has not decided as of this date whether a reviewing court may disregard a trial court's constitutionally improper failure to provide a "no adverse inference" instruction in a similar factual situation if this error is harmless beyond a reasonable doubt. See Carter, 450 U.S. at 304, 101 S.Ct. at 1121 ("While it is arguable that a refusal to give [a no adverse inference] instruction similar to the one that was requested here can never be harmless, we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky.") (citation omitted). However, the federal courts of appeals that have reached this question have unanimously held that a constitutionally erroneous failure to provide a "no adverse inference" instruction may be disregarded if the error was harmless beyond a reasonable doubt. See Finney v. Rothgerber, 751 F.2d 858, 864 (6th Cir.), cert. denied, 471 U.S. 1020, 105 S.Ct. 2048, 85 L.Ed.2d 310 (1985); Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir.1984). See also Carroll v. Hoke, 721 F.Supp. 446, 450-51 (E.D.N.Y.1989). The Indiana Supreme Court has also held that a state trial court judge's violation of the federal Constitution in failing to provide a "no adverse inference" instruction may be ignored when the error is harmless beyond a reasonable doubt. See Parker v. State, 425 N.E.2d 628, 630 (Ind.1981). See also Brown v. State, 446 N.E.2d 354, 357 (Ind.App.1983). We agree with the federal and Indiana courts' resolution of this issue and conclude that failure to provide a "no adverse inference" instruction may appropriately be disregarded when the error is harmless.
21
The harmless error rule "recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence." Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460 (1986). For a constitutional error to be harmless, "the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In addressing the question of harmless error we often focus upon whether the evidence supporting a conviction is "overwhelming." See, e.g., United States ex rel. Savory v. Lane, 832 F.2d 1011, 1020 (7th Cir.1987) ("Typically, we require other evidence of guilt to be 'overwhelming' before concluding a constitutional error is harmless."). However, we have also held constitutional errors harmless even in the absence of "overwhelming" evidence, focusing instead on the "impact of the objectionable material on the jury's verdict" as a means to determine whether "the jury would have convicted [the defendant] absent [the constitutional error]." Fencl v. Abrahamson, 841 F.2d 760, 769 (7th Cir.1988). Under either approach our purpose is to determine whether the error was harmless beyond a reasonable doubt.
22
The facts of this case clearly establish Hunter's guilt. Hunter was identified by a bank teller as one of the robbers and observed wielding a silver handgun that was used not only during the robbery but also at the time a car was stolen during the attempt to flee from the robbery. Police confiscated a silver handgun and other items from Howard Smith's apartment where the robbers met to count their loot. Howard Smith was later arrested in the possession of dye-stained money; an old bar of soap also stained with red dye was found in Smith's apartment. The money appeared to be stained from the red dye packet planted in the money. In addition, Smith testified about statements Hunter made, recounting with specificity many of the facts and circumstances surrounding the events during and immediately after the robbery. Another accomplice (Anthony Thompson) testified as to Hunter's solicitation of his participation in a possible scheme to "make some money" on the day of the robbery.7 These facts, the physical evidence, the eyewitness testimony, and the accomplice's testimony clearly establish a case of Hunter's guilt beyond a reasonable doubt. We specifically disagree with Judge Sharp's reasoning that the combination of accomplice testimony, physical evidence and eyewitness identification offered in evidence failed to constitute "overwhelming" evidence of Hunter's guilt. " '[T]he view that the prosecution's case must answer all questions and remove all doubts ... of course, is not the law because that would be impossible; the proof need only satisfy reasonable doubt.' " United States v. Nesbitt, 852 F.2d 1502, 1511 (7th Cir.1988) (quoting Borum v. United States, 380 F.2d 595, 599 (D.C.Cir.1967) (former Chief Justice Burger dissenting) (emphasis in Borum )).
23
Even if we were to focus upon the question of the effect on the jury of the failure to provide the "no adverse inference" instruction, as in Fencl, we would also hold that any alleged error was harmless. The district court believed that, in the absence of a "no adverse inference" instruction, there was " 'a reasonable possibility' that the jury may have considered the petitioner's failure to testify as a tacit admission to the truthfulness of the inculpatory statements that [Hunter] made to Smith and Thompson." Hunter, at 1344. The combined eyewitness, direct and physical evidence recounted in this opinion clearly and independently corroborate Thompson and Smith's accounts of Hunter's hearsay statements. We are convinced that because of the overwhelming evidence of guilt, Hunter's failure to testify and the lack of the no-inference instruction had no impact on the jury verdict. It is our belief that "the jury would have convicted [the defendant] absent [the alleged constitutional error]." Fencl, 841 F.2d at 769. Furthermore, if there were a constitutional error in the state court's failure to provide a no adverse inference instruction, it would have been harmless beyond a reasonable doubt.
24
In contrast to its voluminous attempt to refute our conclusion that the trial court committed no constitutional error, the dissent relegates its disagreement with our disposition of the harmless error issue to a footnote stating:
25
"As the majority correctly notes, the Supreme Court has yet to decide whether the failure to give a no adverse inference instruction can be harmless error. See Carter, 450 U.S. at 304, [101 S.Ct. at 1121]; James v. Kentucky, 466 U.S. 341 [104 S.Ct. 1830, 80 L.Ed.2d 346] (1984). While a serious question remains as to whether such error can ever [be] considered harmless, I need not reach the issue since I accept the district court's finding that it was clearly not harmless in this case."
26
Dissent at 312, n. 3. As previously discussed, the federal precedent uniformly supports a conclusion that a failure to provide a "no adverse inference instruction" can constitute harmless error. As also was discussed above, it is quite clear that the involved error was harmless beyond a reasonable doubt as the evidence of Hunter's guilt was overwhelming, and we are of the opinion that the jury would have convicted Hunter absent any alleged constitutional error. In light of our extensive delineation of the reasons why the error was harmless and the failure of the dissent to specifically isolate bases for harmlessness other than those set forth in the district court's opinion, we see no reason to alter our conclusion that any alleged constitutional errors were indeed harmless beyond a reasonable doubt.
27
Because we hold that the district court did not commit error in failing to provide a "no adverse inference" instruction, and that any such error under the facts of this case would have been harmless beyond a reasonable doubt, the judgment of the district court granting Hunter's petition for habeas corpus is
28
REVERSED.
29
FLAUM, Circuit Judge, dissenting.
30
During trial, Steven Hunter exercised his federal constitutional right to receive a "no adverse inference" jury instruction. See Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981). When his co-defendant objected to the giving of the instruction and exercised his state constitutional right not to have the instruction read to the jury, see Parker v. State, 425 N.E.2d 628, 630 (Ind.1981), the trial court believed that it was placed on the horns of a dilemma. The co-defendant, however, should not have been able to maintain a successful objection, the Supreme Court having previously determined that "the giving of [a no-adverse inference] instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments." Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S.Ct. 1091, 1095-96, 55 L.Ed.2d 319 (1978) (footnote omitted) (emphasis added). Applying established principles of constitutional law, as the Indiana Supreme Court subsequently noted in a case posing the precise issue presented here, the proper route should have been apparent: the supremacy clause mandates that the "Fifth Amendment right to an instruction warning the jury not to draw adverse inferences from his silence must prevail over the right that this Court has granted under the Indiana Constitution to decide whether it suits [a defendant] to have such an instruction given or not." Lucas v. State, 499 N.E.2d 1090, 1093 (Ind.1986). Rather than reaching this result, the trial court chose to offer Hunter the option of severance, and when he declined, refused to read the instruction to the jury, instead honoring the objection of the co-defendant. The majority holds that Hunter effectively waived this fundamental constitutional right when, after affirmatively exercising it, he declined the trial court's proffered procedural remedy. Because in my view this holding contravenes clearly established Supreme Court precedent and the supremacy clause as well as recognized principles of waiver, I must respectfully dissent.
31
In Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981), the Supreme Court reversed a defendant's conviction because his fifth and fourteenth amendment rights were violated when the trial court refused to give a no adverse inference instruction to the jury. Speaking in unqualified terms, the Court recognized that as part of the criminal defendant's "absolute constitutional guarantee against self-incrimination," a trial judge "must give a single 'no adverse inference' jury instruction when requested by defendant to do so." Id. at 300, 101 S.Ct. at 1119 (emphasis added). "The Constitution obliges the trial judge to tell the jury, in an effective manner, not to draw the inference if the defendant so requests...." James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). The right to a no adverse inference instruction, as identified by the Court, is absolute and unconditional; to receive the instruction the defendant who does not testify on his own behalf need only properly request that the instruction be given. Faced with the competing demands of the two defendants in this case, the trial court's remedy of severance was reasonable since it would have accorded each of the defendants what they sought. Defendant Hunter, however, was not bound to accept the offer and his decision must be viewed as equally appropriate, given the resources already devoted to the trial, the state of the law mandating that he receive the instruction over his co-defendant's objection, and the fact that he had already been placed in jeopardy. Once Hunter refused the offer, the trial judge was bound by the dictates of the Supreme Court to give the requested instruction. In acceding to co-defendant Hatcher's objection to the instruction, I am constrained to conclude that the trial judge deviated from established Supreme Court precedent and in doing so violated Hunter's constitutional right to receive the "no adverse inference" instruction.
32
It remains unexplained why the trial court denied co-defendant Hatcher's earlier repeated demands for severance. What is clear is that once Hunter turned down the trial court's eventual offer of severance, the court was bound to read the instruction over any objection by Hatcher. The court did not do so, and an examination of the record appears to reveal why--the trial court apparently misconstrued the guidance provided by the Supreme Court. Rather than reading Carter, James, and Lakeside to mandate that the instruction be given on demand despite the objection of a co-defendant, the trial judge found that in these cases "the Supreme Court says it [the no adverse inference instruction] doesn't have to be given. [The co-defendant] doesn't want it to be [given], so it will not." R. 164-65. I find erroneous such an interpretation of this line of precedent.
33
The majority apparently distinguishes the binding Supreme Court precedent sub silentio, instead relying on the position that Hunter was to blame for the conflict which he caused by demanding the instruction. This "responsibility-shifting," however, belies a fundamental fact--the government was the party that moved for a joint trial and the trial court granted the motion. In my view, any conflict between co-defendants cannot appropriately be attributed to either of them but instead must be traced to the actions and decisions of the prosecutor and the trial court.1
34
The majority exonerates the trial court's ruling by finding waiver on the part of the defendant. I must admit to some puzzlement as to how defendant Hunter can be deemed to have waived a fundamental right in the face of his express assertion of that very right. It is undisputed that Hunter was under no duty or obligation to accept the trial court's eventual offer of a new trial, just as he would have had no right to demand such action initially.2 The majority is correct in suggesting that the "court devised and offered a logical and legally acceptable solution (severance) that would have protected both Hunter's federal constitutional right to receive a no adverse inference instruction and his co-defendant's [state] right not to receive an instruction." In my opinion, however, waiver cannot be woven from the defendant's declination of a trial court's solution to the perceived dilemma. Rather, the defendant must be deemed to have knowingly and intelligently waived a known constitutional right, see Zerbst v. Johnson, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and here, to the contrary, Hunter knowingly and intelligently exercised the right. The majority does not speak of a "knowing and intelligent waiver" but rather only of how the defendant failed to deliver the trial court from the conflicting requests. Furthermore, the majority opinion does not refer to any persuasive authority to support its waiver analysis. Therefore, I respectfully decline to join in such an innovative interpretation of the defendant's actions.
35
The fifth and fourteenth amendment of the Constitution guarantee a criminal defendant the right that the jury be instructed that it is to draw no adverse inference from his decision not to testify. I do not believe that this absolute right, emphatically sanctioned by the Supreme Court, can be made conditional upon the defendant's acceptance of a procedural remedy fashioned by a trial court to meet the competing demands of jointly-tried co-defendants. In my judgment, this dilution of a fundamental constitutional protection cannot be supported in light of Supreme Court directives. I am in agreement with the district court that the writ should be granted since the trial court committed error of constitutional dimension when it refused to read the requested instruction to the jury. Therefore, I respectfully dissent.3
ORDER
36
Sept. 17, 1990.
37
A majority of judges in active service have voted to rehear this case en banc. Accordingly,
38
IT IS ORDERED that rehearing en banc be, and the same is hereby, GRANTED.
39
IT IS FURTHER ORDERED that the judgment and opinion entered in this case on July 3, 1990 be, and are hereby, VACATED. This case will be reheard en banc at the convenience of the court.
1
Indiana's "criminal confinement" offense, found in Ind.Stat.Ann. Sec. 35-42-3-3, was "[c]arved from the previous statutory definition" of kidnapping, and is "punishable by a significantly less severe penalty" than kidnapping. Owens v. State, 419 N.E.2d 969, 970 (Ind.1981)
2
In Gross the Indiana Supreme Court appeared to base its holding upon the Fifth Amendment to the United States Constitution. See 306 N.E.2d at 372-73. Obviously, this rationale could not survive the United States Supreme Court's refusal to recognize a Fifth Amendment right not to receive a "no adverse inference" instruction in Lakeside
3
Hunter v. State, 492 N.E.2d at 1068-69
4
Hunter v. Duckworth, at 1342 n. 1
5
Dissent at 310
6
The dissent notes that the trial judge's decision may have resulted because the "court apparently misconstrued the guidance provided by the Supreme Court," concerning a defendant's right to receive a "no adverse inference" instruction in the face of a co-defendant's request that the instruction not be given. Dissent at 311. However, the state trial court's subjective understanding of the involved constitutional rights is irrelevant
7
Although Thompson declined the invitation to take part in the robbery, Thompson assisted Smith in attempts to remove the red dye from the money
1
The majority opinion relies on United States v. Splain, 545 F.2d 1131, 1133 (8th Cir.1976) and United States v. Feroni, 655 F.2d 707, 712 (6th Cir.1981) for the proposition that a "trial judge can not be faulted for any trial mishaps that he offers to and could correct." At 307. These cases involved straightforward evidentiary situations in which a defendant rejected an offer by the trial court to give a curative instruction to the jury in the face of prejudicial remarks made by government witnesses. In my view, these decisions of non-constitutional proportions cannot be supportive of the position forwarded by the majority that a defendant waives his constitutional right to a no adverse inference instruction when he refuses a trial court's offer of severance
2
At the time of trial, Hunter was entitled to severance only if a co-defendant's statement implicating the defendant was to be admitted or if "the court determine[d] that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant." I.C. 35-34-1-11(b)
3
As the majority correctly notes, the Supreme Court has yet to decide whether the failure to give a no adverse inference instruction can be harmless error. See Carter, 450 U.S. at 304, 101 S.Ct. at 1121; James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). While a serious question remains as to whether such error can ever considered harmless, I need not reach the issue since I accept the district court's finding that it was clearly not harmless in this case
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886 F.2d 1101
64 A.F.T.R.2d 89-5412, 58 USLW 2242, 89-2USTC P 9550,19 Bankr.Ct.Dec. 1391, Bankr. L. Rep. P 73,073
In re MARK ANTHONY CONSTRUCTION, INC., Debtor.UNITED STATES of America, Appellant,v.Ian LEDLIN, Trustee, Appellee.
No. 87-4258.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Feb. 7, 1989.Decided Sept. 22, 1989.
William S. Rose, Jr., Asst. Atty. Gen., Gary R. Allen, Wynette J. Hewett, Linda E. Mosakowski, U.S. Dept. of Justice, Washington, D.C., for appellant.
Joseph D. Harkrader, Spokane, Washington, for appellee.
Appeal from the Bankruptcy Appellate Panel of the Ninth Circuit.
Before REINHARDT, KOZINSKI and TROTT, Circuit Judges.
REINHARDT, Circuit Judge:
1
This case presents a single, straightforward question of statutory construction. The question is, however, a difficult one. We must, in effect, seek to divine the substantive import, if any, of a statute's silence. In such a case reasonable arguments can often be made for either party's position. Here, our decision is one shaped as much by the application of fundamental legal principles as by consideration of the previous cases which have examined the question.
2
The question we answer is framed easily enough: is the interest which accrues on taxes due after the filing of a bankruptcy petition afforded first priority status as an administrative expense of the bankruptcy estate? It is explicit in the Bankruptcy Code ("Code") that the taxes which accrue after the filing of such a petition are treated as administrative expenses. Any fines or penalties relating to post-petition taxes are likewise afforded first priority status by the Code. Furthermore, before the Bankruptcy Code was enacted in 1978, the Supreme Court had explicitly held that post-petition interest was also properly deemed an administrative expense.
3
The dilemma we resolve here stems from two facts. First, the Bankruptcy Code, enacted after the Supreme Court decision just mentioned, is silent on the priority of post-petition interest. Second, a version of the Code revision, which Congress modified when drafting the final text, specifically afforded post-petition interest first priority status. The basic question, therefore, concerns the effect on the pre-revision rule of the earlier drafts and the final text of the Bankruptcy Code. A majority of the Bankruptcy Appellate Panel concluded that the statute's failure expressly to incorporate the rule laid down by the Supreme Court, as well as the process by which the section attained its final form affirmatively demonstrated the will of Congress and, accordingly, ruled that post-petition interest was no longer allowable as an administrative expense. Possibly with some cynicism, we are reluctant, given the inconclusive history we shall explore below, to adopt such an ingenuous view of the process by which Congress fashions complex legislation. Moreover, the Bankruptcy Appellate Panel's recitation of the legislative history is somewhat inaccurate.1 Because we conclude that Congress did not demonstrate an intent to abrogate the rule laid down by the Supreme Court, and because drawing a distinction between the priority afforded the interest accruing on post-petition taxes on the one hand, and the penalties or fines accruing on such taxes (not to mention the underlying taxes themselves) on the other, seems to run counter to the structure of the Bankruptcy Code--and to make little sense--we reverse, and hold that interest accruing on taxes due after the filing of a bankruptcy petition is to be treated as an administrative expense of the bankruptcy estate, and consequently afforded first priority status.
4
* Almost eight years ago, Mark Anthony Construction, Inc. filed a Chapter 11 petition, seeking to reorganize its failing business under the protection of the bankruptcy laws. Attempts to maintain the company as a going concern failed and, in July 1983, the reorganization was converted into a Chapter 7 liquidating bankruptcy. During the period in which Mark Anthony had operated under Chapter 11, it incurred social security and withholding taxes in the amount of $9,708.95. At the time the liquidation began, $1,672.96 in interest had accrued on these taxes.
5
The government filed a proof of claim contending that the taxes and the accrued interest should be deemed administrative expenses of the estate, entitled to first priority under section 503(b) of the Bankruptcy Code, 11 U.S.C. Sec. 503(b).2 The trustee objected in part, claiming that the interest should not be treated as an administrative expense under section 503. In a brief, unpublished order, the bankruptcy court agreed and ruled that the post-petition interest was not a first priority expense of the estate's administration. On appeal, a majority of the Bankruptcy Appellate Panel ("BAP") affirmed. In re Mark Anthony Construction, Inc., 78 B.R. 260 (9th Cir. BAP 1987). Relying largely on the legislative history of the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2549, the BAP noted that one version of the reform legislation had expressly included post-petition interest in section 503's list of administrative expenses, and that the relevant language was not included in the final version. Given this fact, the majority refused to hold that post-petition interest should be afforded the priority the government sought. 78 B.R. at 263. Judge Elliott dissented, believing that the rule laid down by the Supreme Court in Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966) ("Nicholas "), under which post-petition interest was treated as an administrative expense, had not been "expressly abrogat[ed]" with the passage of the 1978 Act and therefore remained in force. 78 B.R. at 264. The government appealed, and we now reverse.
II
6
It is probably wise to begin with the common ground. Both parties agree that social security and employment withholding taxes incurred after the filing of the bankruptcy petition are entitled to first priority under the Code, as are fines and penalties incurred as a result of the failure timely to pay such taxes. Likewise, there is no dispute that, under the rules established by 11 U.S.C. Sec. 726, and the priorities mandated by 11 U.S.C. Sec. 507, the characterization of the post-petition interest at issue here as an "administrative expense" would give the interest first priority status in the ultimate distribution of the estate's assets. See In re Friendship College, Inc., 737 F.2d 430, 432 (4th Cir.1984) ("Friendship College "). Finally, all agree that, were we still operating under the regime of the old Bankruptcy Act of 1898, 30 Stat. 541 ("Act"), the rule of Nicholas would require that the $1672 in post-petition interest be given first priority.
7
Since the dispute between the parties essentially reduces to the question whether Nicholas has continuing vitality even after the adoption of the Bankruptcy Code, we preface our analysis of the statute with a brief discussion of the specifics of the case and the drafting of the Code. In Nicholas, the Supreme Court examined section 64(a) of the 1898 Act (then codified as 11 U.S.C. Sec. 104(a)), which listed those debts which should be given priority in the distribution of a bankrupt's assets. The Court sought to assess the equities of awarding interest on taxes which accrued during three distinct phases of reorganization and bankruptcy proceedings: the period before the Chapter 11 reorganization petition is filed; the period during the reorganization; and the period after a liquidating bankruptcy petition is filed. Nicholas, 384 U.S. at 685-690, 86 S.Ct. at 1680-1683. (The middle period is the one to which we refer as the "post-petition" period for purposes of this case.) In that portion of its opinion relevant here, the Court concluded that allowing the interest during the reorganization period neither unfairly burdened the trustee nor disadvantaged other creditors.3 It further reasoned that, inasmuch as during reorganization the government was delayed in receiving its rightful tax revenue by the operation of the bankruptcy laws themselves, it would not be just to penalize the government creditor by not allowing interest on unpaid taxes. 384 U.S. at 689, 86 S.Ct. at 1682. It thus ruled that the government could claim, as a debt which had first priority, interest on taxes which were due but went unpaid during the pendency of Chapter 11 proceedings. Id.
8
For reasons that will shortly become apparent, in this case we need not engage in an exhaustive narration of the legislative history of section 503(b)(1) of the Code, although where necessary, we shall discuss particular aspects of that history in greater detail. For now, sufficient background for our analysis of post-Code treatment of the interest question is provided by three brief observations. First, the version of section 503 passed by the Senate explicitly stated that "taxes, including interest thereon," should be treated as administrative expenses. S. 2266, 95th Cong., 2d Sess. (1978) (emphasis added). Second, the House version of the section contained no reference to interest whatsoever. H.R. 8200, 95th Cong., 1st Sess., (1977). Third, the version adopted in conference, consistent with the House version, contains no mention of interest. See 124 Cong.Rec. H11094-95 (daily ed. Sept. 28, 1978) (statement of Rep. Edwards); 124 Cong.Rec. S17411 (daily ed. Oct. 6, 1978) (statement of Sen. DeConcini); n. 2, supra.
9
Since the Code became law, a number of courts have been called upon to determine the significance, if any, of these facts, and in roughly equal proportion, they have split in their response. More division appears when one examines the various modes of analysis brought to bear on the statute by the courts. Our decision, then, is one made against a backdrop of a substantial number of conflicting prior judgments and rationales; any course we take will necessarily require us to reject the results and reasoning of a number of other courts.4 In such a situation, it seems prudent both to outline the reasoning of some of the cases adopting the rule contrary to the one we adopt here, and to explain in some detail the reasons why we have concluded that post-petition interest should be given priority as an administrative expense.
A. Adverse Authority
10
While we need not discuss each case that has determined that post-petition interest is not to be afforded first priority, we should discuss a few cases that offer analysis representative of the run of cases we reject. Beginning with the least analytically sophisticated treatment of the issue, we note that some courts have looked solely to the fact that section 503 does not mention interest specifically and have concluded that interest can thus never be given first priority. See, e.g., In re American International Airways, Inc., 77 B.R. 490, 495 (Bankr.E.D.Pa.1987). Other decisions, somewhat more thorough in approach, have at least attempted to see whether denying first priority to post-petition interest made any sense under the Code. See In re National Automatic Sprinkler Co. of Ore., Inc., 63 B.R. 49, 50 (Bankr.D.Ore.1986) (noting that interest on administrative claims generally is afforded fifth priority under 11 U.S.C. Sec. 726(a)(5), but distinguishing contrary authority as being "decided on different facts applying a rationale other than the one here").
11
Some courts, relying on the notion that much bankruptcy adjudication rests on fundamental principles developed in equity, have chosen not to adopt any per se rule with respect to affording first priority to post-petition interest. For example, in In re Gould & Eberhardt Gear Machinery Corp., 69 B.R. 944 (Bankr.D.Mass.1987) ("Gould & Eberhardt "), the court was called upon to determine, in the context of ruling on the confirmation of a Chapter 11 reorganization plan, the priority which would be afforded to certain administrative expenses. In looking at the interest on taxes which would accrue after the reorganization would begin, the court first discussed the split in the case law on the subject at some length, and examined in detail the arguments in favor of awarding interest advanced by the taxing creditors.5 Id. at 946-47. Relying on an argument we discuss infra at 1107-08, it then stated that it believed that the Code allowed a court to award first priority status to administrative expenses not specifically given that priority by section 503 in certain cases, "depending on the nature of the claims and the equities of the case." Id. at 947. The Gould & Eberhardt court then concluded that the equities of the matter before it did not favor affording first priority to the interest on the debtor's unpaid taxes, basing this judgment largely on its finding that granting first priority to the interest would "caus[e the] termination of the Debtor's business, with the loss of employment and the other ills normally resulting when a business collapses." Id. at 948.
12
Without question, however, most of the courts that have rejected claims of first priority for post-petition interest have done so on the theory that the legislative history of section 503 indicated a specific Congressional intent not to allow interest to be deemed a first priority administrative expense. Apparently the first of these cases, and one on which the trustee here relies to great degree, is In re Stack Steel & Supply Co., 28 B.R. 151, 156 (Bankr.W.D.Wash.1983) ("Stack Steel "). The Stack Steel court recited the legislative events we discussed above, noting that the Senate had included interest in its draft of section 503(b) but that the final version of the section passed by Congress omitted any reference to interest. Id. The court also acknowledged that "[t]he legislative history addressing the compromise bill is silent as to why the Senate's specific provision for interest was omitted." Id. Nevertheless, the court concluded, it was "a plausible inference" that the omission was a "deliberate and significant" one, to be read as demonstrating Congress' intent not to allow interest to share in the first priority afforded to the administrative expenses specifically enumerated in section 503. Id. The Stack Steel court then refused to grant first priority to the interest accruing on post-petition taxes. Other courts deciding the issue after Stack Steel have drawn the same "plausible inference" and have likewise denied first priority to post-petition interest. See, e.g., Matter of Mansfield Tire & Rubber Co., Inc., 73 B.R. 735, 740 (Bankr.N.D.Oh.1987); Matter of Hirsch-Franklin Enterprises, Inc., 63 B.R. 864, 870-71 (Bankr.M.D.Ga.1986) (claim for $7.22 in post-petition interest would be treated as nonpriority unsecured claim); Matter of Lumara Foods of America, Inc., 50 B.R. 809, 817 (Bankr.N.D.Oh.1985) (adopting view that version of section 503 passed by Congress was an "exclusionary" one, deliberately excluding interest from administrative priority).
13
We disagree.
B. The Proper Construction
14
The rationale for our decision starts with the admonition of Justice Jackson that questions such as the one we answer here must be resolved through "analysis of the statute instead of by psychoanalysis of Congress," and that courts must steadfastly resist the ready temptation to rest a decision on their surmises as to "what Congress probably had in mind." United States v. Public Utilities Comm'n of California, 345 U.S. 295, 319, 73 S.Ct. 706, 719, 97 L.Ed. 1020 (1953) (Jackson, J., concurring). Indeed, one of the basic reasons why we choose not to follow the analysis of the court in Stack Steel is our concern over the manner in which the bankruptcy court in that case so casually ascribed meaning, even motive, to concededly unexplained acts of the legislature.6 See Stack Steel, 28 B.R. at 156. Rather, we choose to examine the section as enacted, in light of pre-existing law, and set forth a rule with respect to post-petition interest that is both consistent with its language and with the Bankruptcy Code in general.7 For the reasons we discuss below, we believe that a rule which affords first priority as an administrative expense to post-petition interest on taxes meets both these objectives.
15
Our approach to interpreting the bankruptcy laws must, as statutory construction should generally, begin with the language of the statute itself. United States v. Ron Pair Enterprises, Inc., --- U.S. ----, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). The text of section 503 immediately presents two seemingly contradictory aspects. The resolution of this apparent contradiction is central to our conclusion. On the one hand, the section lists a series of expenses which should be treated as first priority administrative expenses. When a statute sets forth a series of items included under a general rule, the canon of expressio unius est exclusio alterius, under which a court infers an intention to make the statute's application restricted and limits the application of the statute to the specific listed examples, is often deemed applicable. See Matter of Cash Currency Exchange, Inc., 762 F.2d 542, 552 (7th Cir.1985) ("Cash Currency "); 2A Singer, Sutherland Statutory Construction, Sec. 47.23 at 194 (1984).
16
On the other hand, the structure of section 503(b) is inconsistent with a restrictive interpretation of its list of administrative expenses; the statute states that "there shall be allowed administrative expenses, ... including --" and then lists (in subsections (1)-(5)) a series of expenses. 11 U.S.C. Sec. 503(b)(1)-(5). In construing a statute, the use of a form of the word "include" is significant, and generally thought to imply that terms listed immediately afterwards are an inexhaustive list of examples, rather than a bounded set of applicable items. See, e.g., Puerto Rico Maritime Shipping Authority v. I.C.C., 645 F.2d 1102, 1112 n. 5 (D.C.Cir.1981) ("hornbook law" that list following the word "including" is "illustrative, not exclusive"); Gould & Eberhardt, 69 B.R. at 947 (" 'includes' and 'including' are not limiting language" when used in the Bankruptcy Code) (citing 11 U.S.C. Sec. 102(3)); Cash Currency, 762 F.2d at 552 ("includes" or "including" demonstrates that Congress "intended to make the list of [terms] illustrative rather than exhaustive"); Matter of Maidman, 2 B.R. 569, 575 (Bankr.S.D.N.Y.1980) ("when the verb 'include' is utilized in a definitional section [of the Code], it is generally improper ... to conclude that entities not specifically enumerated in the definition of [the relevant term] are to be excluded"). In fact, at least one court has relied upon this interpretation of "including" to conclude that post-petition interest should properly be given first priority as an administrative expense. In re Bergin Corp., 77 B.R. 210, 212 (Bankr.E.D.Wisc.1987) ("[t]he precise wording of Sec. 503(b) is such that only illustrations of administrative expenses are set forth[; t]hat listing, however, is not exclusive") ("Bergin ").
17
The Bankruptcy Code specifically provides that "including" is not a limiting term when used in the Code. 11 U.S.C. Sec. 102(3).8 Especially in light of this unambiguous general directive, we conclude that the administrative expense statute's use of "including" renders the expressio unius rule inapplicable to section 503. Thus, the Gould & Eberhardt court was correct in determining that expenses not specifically listed in the section can be deemed administrative expenses. However, at least with respect to the post-petition interest question, we decline to adopt that court's case-by-case approach to determining priority and hold instead that the specific common law rule laid down by the Supreme Court in Nicholas survives the enactment of the Code and allows interest accruing on unpaid post-petition taxes to be given first priority as an administrative expense.
18
We base our holding on three grounds. The first concerns what we perceive to be the proper relationship between the Code and the rule of Nicholas. As we have stated several times already, Congress gave no explanation for its failure to mention "interest" among the items to be afforded first priority status. The history relating to the final Committee action, and the various predecessor versions of the section, is wholly inconclusive. There is no indication anywhere in the legislative history that Congress intended to, or even was aware that its failure to list interest specifically would, alter the priority of post-petition interest. See Friendship College, 737 F.2d at 433; Matter of Patch Press, Inc., 71 B.R. 345, 349 (Bankr.W.D.Wisc.1987) ("Patch Press ").
19
All of this is to say that Congress nowhere expressed an intention to abrogate the rule established in Nicholas.9 (Indeed, it never expressed an awareness of having done so.) We believe that this fact brings an important principle of statutory construction to bear directly on the issue we address here, namely that " 'no changes in law or policy are to be presumed from changes in language in [a statute's] revision unless an intent to make such changes is clearly expressed.' " Finley v. United States, --- U.S. ----, 109 S.Ct. 2003, 2009, 104 L.Ed.2d 593 (1989) (quoting Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957)). This rule--one which bars a court from construing a statute to have abrogated the common law, or to have established a new rule of law, without clear evidence in favor of such a construction--is firmly and sensibly entrenched in federal jurisprudence. See N.L.R.B. v. Plasterers' Local U. No. 79, 404 U.S. 116, 130-31, 92 S.Ct. 360, 369, 30 L.Ed.2d 312 (1971) (Supreme Court "has frequently cautioned that '[i]t is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law' ") (quoting Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946)); Federal Savings & Loan Insurance Corp. v. Quinlan, 678 F.Supp. 174, 176 (E.D.Mich.1988) (common law rules survive unless evidence exists that subsequently enacted statute intended to be in derogation of prior case law) (citing Continental Management v. United States, 208 Ct.Cl. 501, 527 F.2d 613, 620 (1975)).
20
The implication of the foregoing for our inquiry is manifest. Congress never expressed an intention to create a new rule with respect to the priority of interest accruing on post-petition taxes; it did not in any way evince a desire to overrule Nicholas. Given this fact, we avoid the "treacherous" course of inferring from Congress' silence any affirmative intentions. We are unsure to what extent Congress, in enacting section 503, considered Nicholas. At the same time, we are certain that, to the extent it did consider the case, it provided us with no basis to conclude that it intended to overrule it. See In re Associated Air Services, Inc., 75 B.R. 47, 49 (Bankr.S.D.Fla.1987) ("nothing in the [Code's] legislative history to indicate the Congress wished to abrogate Nicholas under the present Bankruptcy Code") ("Associated Air Services ").
21
The second ground for our conclusion is that a rule which treats interest in the same manner as the underlying tax is consistent with the general treatment of taxes and interest in the Code, and in the tax laws. As courts have noted in the bankruptcy context before, interest is generally considered "an integral part of a continuing debt," Bruning, 376 U.S. at 360, 84 S.Ct. at 908, and interest on unpaid taxes is "part and parcel of the tax due" under the Internal Revenue Code. Associated Air Services, 75 B.R. at 48-49 (concluding, based on this fact, that any reference to interest in section 503(b) was "completely unnecessary"). See also 26 U.S.C. Sec. 6601(e)(1) ("[a]ny reference in [the Internal Revenue Code] to any tax imposed by this title shall be deemed also to refer to interest imposed by this section on such tax"). Departing from the general rule and differentiating between taxes and interest only in this limited context makes little sense to us; nor has the trustee advanced any compelling reason why Congress would have done so.10 Accordingly, we construe section 503, consistent with the rest of the Bankruptcy Code, in a manner which treats interest no differently from the underlying tax on which it accrues. See Friendship College, 737 F.2d at 433 ("opt[ing] for consistency," court refuses to treat taxes and interest differently for administrative priority purposes); Patch Press, 71 B.R. at 349-350.11
22
Finally, we agree with the Bergin court that "there is no logical reason why Congress would afford administrative treatment to penalties but not to interest." Bergin, 77 B.R. at 212. Penalties, unlike interest, are not normally considered integral to the tax debt itself, and we can discern no justification, in the legislative history or elsewhere, for Congress' adopting a rule that gives a greater priority to penalties than to interest. For this third reason also, we believe that a rule which affords first priority as an administrative expense to post-petition interest is both sensible in itself and consistent with the Code.
III
23
The Bankruptcy Code is a complex, sometimes nearly opaque, statute, and the rules of construction we must apply to its dimmer aspects are themselves arcane, even contradictory at times. Nonetheless, we believe that the decision we have stated and explained here is the correct one. It is consistent with the language Congress adopted in drafting section 503. It is not contravened, or even cast into doubt, by the legislative history of the statute. It preserves a rule of common law in a case in which there is no indication that Congress meant to overrule that law. Finally, it is consonant with the treatment of similar issues in different contexts in the Bankruptcy laws.
24
And to us the contrary rule makes little sense.
25
Accordingly, we reverse the judgment of the Bankruptcy Appellate Panel.
REVERSED
1
There is no evidence that the House rejected any Senate proposal. Rather, the Conference Committee rewrote various provisions, merging some parts, drafting new language for others. At no point did the Committee or the House express any concern over making any change in existing law other that with respect to abolishing fees for bankruptcy referees. See H.R.Rep. No. 95-595, 95th Cong. 1st Sess. at 186-87, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6147
2
Section 503(b) states in relevant part:
(b) After notice and a hearing, there shall be allowed, [sic] administrative expenses ... including--
* * *
(1)(B) any tax--
(i) incurred by the estate ...; or
(C) any fine, penalty, reduction in credit relating to a tax of a kind specified in subparagraph (B) of this paragraph
* * *
3
The inquiries of the Nicholas court were tailored to the two theories--the belief that allowing claims in bankruptcy for interest which accrued on some debts and not on others promoted "unfairness as between competing creditors" and represented an "administrative inconvenience" for the trustee--that had formed the basis for the rule with respect to interest limited in Nicholas. See Bruning v. United States, 376 U.S. 358, 362, 84 S.Ct. 906, 908, 11 L.Ed.2d 772 (1964) ("Bruning "); New York v. Saper, 336 U.S. 328, 334, 69 S.Ct. 554, 557-58, 93 L.Ed. 710 (1949)
4
We note at this point that only one other court of appeals has considered the question before us. That court reached the same result we reach today. Friendship College, 737 F.2d at 432
5
It may well be true that all creditors in bankruptcy are "taxing" in one way or another. The phrase is employed here as a term of art, a shorthand way of describing those governmental entities who have claims for unpaid taxes against the bankrupt
6
Professor Llewellyn put the matter forcefully (maybe too forcefully) when he wrote that courts often should
cease driveling about some compelling "legislative intent" which flatly controls the court, even in cases where no such intent existed or can be found, and [should] settle down instead to a court's real and responsible business of trying to make sense out of the legislation, so far as the text and context may allow.
K. Llewellyn, The Common Law Tradition--Deciding Appeals, (1960) at 528-29.
7
This approach is the one normally applied to construction of the bankruptcy laws in this circuit. In interpreting statutes in this field we avoid resort to legislative history where the statute is not overtly ambiguous. If legislative history is consulted, we confine our inquiries primarily to official committee reports, which "provide the authoritative expression of legislative intent." In re Kelly, 841 F.2d 908, 912 & n. 3 (9th Cir.1988) (Kozinski, J.) (citing Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 483, 83 L.Ed.2d 472 (1984))
8
11 U.S.C. Sec. 102 states in pertinent part:
Sec. 102 Rules of Construction
In this title [the Bankruptcy Code]--
* * *
(3) "includes" and "including" are not limiting;
* * *
9
We note that, throughout the official reports accompanying the House and Senate versions of the Code, there are explicit descriptions of the manner in which Code provisions would overrule prior court decisions or otherwise alter the law as it had evolved under the Act. See, e.g., S.Rep. No. 95-989, July 14, 1978 at 69 (describing manner in which proposed section 506(a)(4) would abrogate rule with respect to wage priority of fringe benefits laid down in United States v. Embassy Restaurant, 359 U.S. 29, 79 S.Ct. 554, 3 L.Ed.2d 601 (1959)), reprinted in 1978 U.S.Code Cong. & Ad.News. 5787, 5855; H.Rep. No. 95-595, Sept. 8, 1977 at 188 (creation of new fifth priority for consumer claims), reprinted in Id. at 6148. We have found no similar indication that Congress intended to overrule a decision of the Supreme Court, or otherwise alter the priority of claims, with respect to post-petition interest
10
We reject the trustee's suggestion that allowing priority on the interest would be unfair to creditors other than the taxing authorities. We agree with the view expressed in a similar context by Chief Judge Campbell of the First Circuit that, while the bankruptcy laws can delay payment of taxes rightly owed, the operation of those laws should not work to force a taxing authority to make an interest-free loan to a party temporarily excused from paying taxes. In re Boston and Maine Corp., 719 F.2d 493, 503-04 (1st Cir.1983) (considering railroad reorganization under Sec. 77 of the Bankruptcy Act) (Campbell, C.J., concurring in part and dissenting in part)
11
Some courts, Patch Press among them, have taken a statement on the floor of the House by Rep. Edwards concerning Sec. 726 of the Code, to the effect that the word "interest" was deleted from that section because it was thought included in the word "claim" and would therefore be redundant. See 71 B.R. at 350 (citing 1978 U.S.Code Cong. & Ad.News 6505, 6459). While, as we have explained above and as a matter of bankruptcy practice, interest may well be normally thought to be encompassed in a claim (and, by extension, in the word "tax"), we decline to rest our decision on this isolated snippet of legislative history. See n. 4, supra
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595 F.2d 1321
4 Fed. R. Evid. Serv. 416
UNITED STATES of America, Plaintiff-Appellee,v.Robert McPARTLIN et al., Defendant-Appellants.
Nos. 77-2258, 77-2259, 77-2274, 77-2275 and 77-2280.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 29, 1978.Decided March 26, 1979.As Amended on Denial of Rehearing and Rehearing En BancApril 23, 1979.
Edward J. Calihan, Jr., William J. Harte, Chicago, Ill., Herbert J. Miller, Jr., Washington, D. C., Joseph A. Lamendella, Harvey M. Silets, John J. Jiganti, Chicago, Ill., for defendants-appellants.
Gordon B. Nash, Joan B. Safford, Candace J. Fabri, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
Before PELL, SPRECHER and TONE, Circuit Judges.
TONE, Circuit Judge.
1
The appellants were convicted, in a nine-week jury trial, of conspiring to violate the wire and travel fraud statutes and of substantive violations of those statutes.
2
The indictment charged that defendant Frederick B. Ingram,1 chairman of the board of the Louisiana-based Ingram Corporation, had paid defendant Robert F. McPartlin, an Illinois legislator, defendant Valentine Janicki, a trustee for the Metropolitan Sanitary District, and others more than $900,000 to secure for the Ingram Corporation a multi-million dollar sludge-hauling contract with the District. Defendants Franklin H. Weber, a businessman, and Edwin T. Bull, president of a towing company, were alleged to be intermediaries through whom many of the payments were made. William J. Benton, vice president of Ingram Corporation, was an unindicted co-conspirator who played a major role in the conspiracy and testified as a witness for the prosecution. The defendants were convicted of numerous violations of the Travel Act, 18 U.S.C. § 1952, and the Wire, Radio, Television Fraud Act, 18 U.S.C. § 1343, and of conspiring to violate those acts in violation of 18 U.S.C. § 371. The jury acquitted three other defendants, E. Bronson Ingram, brother of Frederick B. Ingram and an officer of Ingram Corporation, Chester Majewski, a Metropolitan Sanitary District trustee, and Bart T. Lynam, General Supervisor of the Sanitary District.2
3
The defendants urge as grounds for reversal the district court's denial of motions for severance, a ruling on the alleged withholding by the prosecution of evidence favorable to the defendants until the beginning of the trial, rulings admitting and excluding evidence, certain instructions to the jury, and other alleged trial errors. In this portion of the opinion the facts are stated and the issues arising from the denial of severance are decided. Judge Pell and Judge Sprecher have written, and I concur in, the portions of the opinion dealing with the other issues.
The Facts
4
The Sanitary District is a municipal corporation with primary responsibility for disposing of sewage from Chicago and surrounding areas. The District's business is governed by an elected Board of Trustees3 and managed by a professional staff, which from time to time makes recommendations to the Board concerning major undertakings of the District.
5
The Sanitary District operates a sewage treatment plant in Stickney, Illinois. Until 1971 the sludge produced as a by-product was disposed of by pumping it into nearby lagoons. Early that year, because the lagoons were rapidly being filled and efforts to clean them had failed, the District announced plans to have the sludge transported to Fulton County, Illinois, about 160 miles southwest of Stickney, and solicited bids on the project, which were due on March 19, 1971.
6
Viewed in the light most favorable to the prosecution, the evidence showed that Benton, acting with the knowledge and complicity of Frederick Ingram and through intermediaries Bull and Weber, bribed McPartlin and Janicki to cause the sludge-hauling contract to be awarded to Ingram Corporation and one of its subsidiaries, and later bribed the same officials to secure favorable treatment under the contract and modifications of the contract. The details were as follows:
7
When the District solicited bids on the sludge-hauling project, defendant Bull assisted Frank Oberle, an employee of Ingram Contractors, Inc., a wholly owned subsidiary of Ingram Corporation, in investigating the new proposal. During the week before the bids were to be submitted, Bull visited Robert Howson, a vice president of Ingram Contractors, Inc., in New Orleans, Louisiana, and told Howson that if Ingram Corporation expected to secure the contract, it would have to make a "political contribution." Howson responded that he was not in that sort of business, but then took Bull to meet William J. Benton, vice president of Ingram Corporation and president of Ingram Contractors, Inc.
8
Ingram Corporation, Burlington Northern, Inc., and the Atchison, Topeka and Santa Fe Railway Company were the leading contenders among those submitting bids on March 19, 1971. To negotiate with these three bidders, the Sanitary District established a committee, which met with representatives of the bidders for the first time on March 23, 1971.
9
That evening Bull, Oberle, and Benton met in Benton's hotel room, where they were later joined by defendant Weber. After Bull had introduced Weber to Benton, Bull and Oberle left the room. Weber then told Benton that if Ingram Corporation wanted the sludge-hauling contract, it would have to make a $250,000 "political contribution." Benton replied that he would have to get approval from his superiors. After agreeing to meet Benton the next day, Weber left.
10
Benton then telephoned defendant Frederick Ingram to inform him of Weber's "political contribution" proposal. Ingram agreed, provided that the contribution could be added to the cost of the contract.
11
On March 24, 1971, Benton again met with Bull, who expressed his belief that if the Ingram Corporation accepted Weber's proposal, it would get the contract. Bull also told Benton that if the corporation did get the contract, he wanted $100,000 in addition to anything it paid Weber. At another meeting later in the day, Weber asked Benton to open an account at a Chicago bank to demonstrate Ingram Corporation's "good faith." That same day, Benton opened an account at the First National Bank of Chicago.
12
The following week, Weber called Benton and told him that Burlington Northern, Inc. had offered to make a $295,000 political contribution. According to Weber, it was therefore necessary for Ingram Corporation to raise its contribution to $450,000, including a $150,000 cash payment before the contract was awarded. Again Benton consulted Frederick Ingram, who again agreed on condition that the contribution could be added to the contract price. Benton communicated Ingram Corporation's approval to Weber, but said that the corporation could not raise $150,000 in cash on such short notice. Weber replied that some of the $150,000 had to be paid by April 3, 1971.
13
On April 3, 1971, Weber and McPartlin went to Benton's Chicago hotel room, where Weber introduced McPartlin to Benton as the man who handled all political contributions for the Democratic Party in Illinois. McPartlin assured Benton that Ingram Corporation would receive at least $21,500,000 in total revenue from the sludge-hauling contract. Benton gave McPartlin $75,000 in cash, including several one thousand dollar bills. On April 6, 1971, Weber deposited nine one thousand dollar bills in the account of one of his defunct corporations, Illinois Southern Materials.
14
On April 6, 1971, Weber telephoned Benton, asking for $25,000 in cash immediately to secure the cooperation of three Sanitary District staff members. When Benton protested that he could not deliver $25,000 cash on such short notice, Weber suggested that Ingram Corporation issue a check in that amount to Bull Towing Company, which Benton caused to be done the next day. On April 8, 1971, Edwin Bull deposited the Ingram check in the account of Bull Towing Company and, at the same time, withdrew $25,000 in cash from the account.
15
The Sanitary District requested the three bidders on the sludge-hauling contract to submit new bids by April 15, 1971. Santa Fe declined. Burlington Northern submitted a revised bid of $18,300,000. Oberle submitted Ingram Corporation's revised bid of $16,990,000, after which he returned to his hotel room, where he received a telephone call from either Benton or Weber. The caller instructed him to go to the bar at the Continental Plaza Hotel to meet defendant Janicki, which Oberle did.4 At the meeting in the bar Janicki told Oberle to raise Ingram's revised bid to $17,990,000. Oberle then returned to his hotel room and telephoned Benton for advise. Benton instructed Oberle to attend the Sanitary District negotiating committee meeting scheduled for that afternoon. While attending the meeting, Oberle received telephone instructions from Benton to raise the Ingram bid by $1,000,000 to $17,990,000. Oberle did so.
16
On April 22, 1971, the Sanitary District Board of Trustees voted to award the contract to Ingram Corporation. Between that date and May 12, 1971, a contract was drafted by members of the Sanitary District staff and Ingram Corporation representatives, including John Donnelly, president of Ingram Barge Company, the Ingram Corporation subsidiary that would transport the sludge under the contract. The staff insisted on a liquidated damages clause authorizing the District to prescribe the amount of sludge to be transported in any 24-hour period and providing that Ingram Corporation would be assessed a penalty for each ton of sludge not transported, as prescribed, in any 24-hour period. Donnelly, after initially refusing to agree to the provision, discussed it with Benton, who told him to agree to it. Only after talking with Frederick Ingram, however, did Donnelly accede to inclusion of the liquidated damages clause.
17
The contract provided that Ingram Corporation would construct additions to the treatment facilities at Stickney and an unloading dock and pump station in Fulton County, for which work the Sanitary District was to pay $733,000. Ingram Corporation was also to construct a pipeline over property not owned by the District, for which construction the District agreed to pay $68,000 per month for 36 months, a total of $2,448,000. The contract also provided that Ingram Corporation would receive $1.802 per ton of sludge hauled from Stickney to Fulton County. The parties estimated that over the life of the contract 8,000,000 tons of sludge would be transported.
18
On May 19, 1971, Weber and Benton met in New Orleans to discuss ways of increasing Ingram Corporation's total revenue under the contract to the $21,500,000 that McPartlin had assured Benton would be forthcoming. Weber told Benton that Janicki and he thought that the corporation could receive an additional $2,100,000 by billing the Sanitary District a second time for the construction of the pipeline and the construction in Fulton County.
19
On June 26, 1971, Weber told Benton that Janicki needed $21,250 to pay off three District staff members. Ingram issued a check for that amount to Southwest Expressway, another of Weber's defunct corporations.
20
On July 27, 1971, Weber issued a $20,000 check to Bull Towing Company. Edwin Bull deposited the check and, at the same time, withdrew $20,000. The next day, the Illinois Commerce Commission granted Ingram Corporation's request for a certificate of convenience and necessity.
21
On August 14, 1971, Edwin Bull negotiated two contracts with Ingram Corporation. In one of them Ingram Corporation agreed to rent barges from Bull Towing Company to transport sludge from the Lemont Bridge over the Illinois River to Fulton County. Donnelly signed this contract but refused to sign the other contract, under which Ingram Corporation would agree to pay Bull $.17 per ton for transporting sludge from Stickney to the Lemont Bridge. Ten cents per ton were intended as payment for actual towing services; the other seven cents per ton were intended as payment for consulting services and engineering and feasibility studies that Bull had allegedly performed for Ingram Corporation. The second contract also provided for payment to Bull of a $76,000 "finder's fee."5 Donnelly objected to the "finder's fee," questioned whether any consulting services or studies that Bull provided to Ingram Corporation were worth $560,000, and questioned Bull's competence as a barge operator. Out of Bull's presence, Benton told Donnelly that if Bull did not participate in the sludge-hauling contract, there would be no contract. Donnelly still refused to sign the second Ingram-Bull contract, but permitted Benton to sign it on behalf of Ingram Barge Corporation as well as Ingram Corporation.
22
On August 15, 1971, Benton, Weber, and McPartlin met in Chicago to discuss further payments. Benton agreed to provide.$146,000 in two installments. On August 18, 1971, Oscar Hardison, comptroller of Ingram Corporation, delivered $30,000 in cash to Weber at O'Hare Airport in Chicago. On August 28, 1971, another Ingram executive, G. Glen Martin, gave Weber $116,000, which consisted of $46,000 in cash and $70,000 in checks payable to Weber's defunct corporations.
23
Ingram Barge Corporation began transporting sludge six days later than the date it was required to do so under the sludge-hauling contract; whereupon the Sanitary District assessed liquidated damages of $30,000 under the liquidated damages clause. In early October, 1971, Benton, Weber, and Janicki held a meeting in Chicago to discuss this matter, following which the Sanitary District withdrew the assessment. After the meeting, Weber told Benton that Janicki wanted $100,000 by the end of 1971. When informed by Benton of this request, however, Frederick Ingram refused, saying that no more payments would be made until the Sanitary District began making payments on the pipeline, as Weber had promised it would.
24
On December 15, 1971, Weber telephoned Benton to tell him that the Sanitary District would issue a check to Ingram Corporation for $1,000,000, as partial payment on the pipeline. When Benton arrived at Janicki's office the following day, however, Janicki disclaimed any knowledge of the $1,000,000 check. Benton threatened to "jerk the rug" from under everyone in Chicago.
25
Upon learning of Benton's threat, Weber informed Oberle of it and asked Oberle to do whatever he could about Benton. Oberle telephoned defendant Frederick Ingram to tell him of Benton's threat. Ingram expressed no surprise, simply thanked Oberle for the information and hung up, and later in the day met with Benton to discuss the matter. At the meeting they agreed that Benton would continue to represent Ingram's interest in dealing with the Chicago officials.
26
On December 21, 1971, Weber, Janicki, and Benton met in Benton's hotel room in Chicago. Benton apologized for his threat. He then gave Weber two checks payable to Weber's defunct corporations in the amount of $50,070. This payment brought Ingram's total contribution to.$317,320, leaving a balance of $132,680 on the $450,000 commitment.
27
In February, 1972, Weber told Benton that because of the difficulties in getting the Sanitary District to pay the additional $2,100,000 for the pipeline, Ingram Corporation would have to increase its contribution to $620,000. On February 17, 1972, Weber asked Benton for $100,000 in cash immediately. When Benton told defendant Ingram of the request, Ingram responded that he would investigate ways of raising the money. On February 28, 1972, Benton delivered $100,000 to Mrs. Valentine Janicki.
28
At trial, defendant Frederick Ingram contended that he did not learn until this February, 1972 meeting with Benton that his company had secured a multi-million dollar contract by paying more than $300,000 to Chicago officials.6 Ingram testified that he protested against paying the bribes, but reluctantly agreed when Benton informed him that if he refused to pay, the Sanitary District would not pay the additional $2,100,000 for the pipeline and would use the liquidated damages clause to penalize Ingram Corporation.
29
On March 10, 1972, Weber told Benton that if Ingram Corporation could deliver $100,000 before the end of the month, the Sanitary District Board of Trustees would approve the purchase of the pipeline. One-fourth of this amount was delivered, but the balance was not, and the trustees failed to approve the purchase. At a July 6, 1972 meeting between Benton, Janicki, and Weber, however, Janicki promised that the trustees would take some action on the pipeline in the month of July. As promised, the board of trustees authorized the staff to negotiate with Ingram for the purchase of the pipeline on July 20, 1972.
30
On August 23, 1972, Benton gave McPartlin $80,000 in cash. McPartlin told Benton that the trustees would approve the purchase of the pipeline in September, but Ingram would have to pay the balance of its contribution, about $95,000, in September also.
31
Between August and November, 1972, Ingram Corporation and the Chicago officials negotiated a new agreement. Ingram would pay $750,000 over a three year period, and the Sanitary District would purchase the pipeline, modify the liquidated damages clause, and extend the sludge-hauling contract for three years at a higher price per ton.
32
On December 28, 1972, representatives of the Ingram companies and the District signed an agreement covering the pipeline purchase that was to be effective only if the parties also signed two other agreements: a retroactive modification of the liquidated damages clause and a three year extension of the sludge-hauling contract. On January 26, 1973, the additional agreements were signed.
33
After the signing, Benton returned to his hotel room and telephoned Janicki to tell him that his money was ready. Janicki sent his secretary to pick up a package containing $50,000 in cash. Benton then telephoned Weber to tell him to come and pick up the balance of the money due. When Weber arrived, Benton gave him $95,000 in cash and nine letters of credit drawn on a Swiss bank in the amount of $70,000 each.7
34
One of the letters of credit matured in June, 1973, and each of the others matured sequentially at six-month intervals. Weber admitted negotiating the first four letters at the Swiss bank in July, 1973, December, 1973, June, 1974, and December, 1974. On each occasion, he purchased his plane ticket to Europe with cash, arranged for his trip to Switzerland only after he arrived in Europe, and stopped in Toronto, Canada, on the way back to the United States. On his last two trips, Weber telephoned Janicki from Europe.
35
Sometime before the fall of 1974 a federal grand jury commenced an investigation of the events surrounding the sludge-hauling contract. In May, 1975, the government granted immunity to Benton.
36
In November, 1975, Weber sent his brother, Henry Weber, to Europe to negotiate the fifth and sixth letters of credit, which matured in June, 1975, and December, 1975.8 Following his brother's instructions, Henry Weber did not proceed directly to the drawee Swiss bank but went to a bank in Vaduz, Liechtenstein, to have that bank present the letters to the Swiss bank.
37
On November 26, 1975, two weeks after his return from Liechtenstein, Henry Weber appeared before the grand jury and testified that he had only visited Frankfurt and Munich. On December 3, 1975, the government called Henry Weber to appear a second time before the grand jury, this time asking Weber to bring his travel records. During his second appearance, Henry Weber testified that he had been mistaken when he said that he had only visited Frankfurt and Munich and that he had also visited Vaduz.
38
On December 9, 1975, Franklin Weber's attorney telephoned one of the government's attorneys in this case and informed him of what the government attorney already had reason to suspect, namely, that Franklin Weber had possession of the remaining letters of credit.
39
Additional details and procedural matters necessary to an understanding of the various issues to be decided will be stated at appropriate places in the opinion.
I.
Severance
40
Before discussing the specific attacks on the district court's denial of severance, some general principles should be noted. The question of whether charges that have been properly joined ought to be severed for trial is for the discretion of the trial judge, whose decision will be reversed only upon a showing of clear abuse. United States v. Tanner, 471 F.2d 128, 137 (7th Cir.), Cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). The defendant has the burden of showing prejudice, which is a difficult one. Id. A denial of severance will rarely be reversed on review, Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), Cert. denied, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969), and then only for the most "cogent reasons," United States v. Kahn, 381 F.2d 824, 838 (7th Cir.), Cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). There is, moreover, a strong policy in favor of joint trial "where the charge against all the defendants may be proved by the same evidence and results from the same series of acts." United States v. Cohen, 124 F.2d 164, 165 (2d Cir.), Cert. denied sub nom. Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210 (1942). See also United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965) recently quoted in United States v. Harris, 542 F.2d 1283, 1312 (7th Cir.), Cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1976).
41
In the case at bar all appellants assert error in the denial of their motions for severance. Frederick Ingram argues that the denial deprived him of evidence that would otherwise have been available. The other appellants, whom we shall call the Illinois defendants, argue that they were prejudiced by the denial because Ingram and his brother (whom the jury acquitted) defended on a ground antagonistic to the defenses of their co-defendants and because of curtailment of cross-examination and the spillover effect of evidence admitted only against Frederick Ingram. We turn first to the argument of the Illinois defendants.
A. The Illinois Defendants
1. Antagonistic Defenses
42
The Ingrams contended that the payments were made only because the Sanitary District threatened to take action that would have resulted in financial disaster to Ingram Corporation, and therefore neither of them had the "intent (to influence the performance of an official act) required by the Illinois bribery statute." United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), Cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). It was not necessary to this defense that the Illinois defendants were guilty of extortion or received bribes, because it was possible that Benton, through whom the corporation's communications with, and payments to, the Illinois defendants were carried out, did not pass any of the money on but kept it all himself.9 Thus the Ingram defense was not necessarily antagonistic to the defenses of others, although it was possible, on the Ingrams' theory, that they were innocent even if the others were guilty.
43
Even if the defenses were to a degree antagonistic, however, it does not follow that there should have been two or more trials. One has no right to any tactical advantage that would result if evidence that is admissible against him in either a joint or separate trial might be unavailable in a separate trial. Cf. Brady v. Maryland, 373 U.S. 89, 90-91, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).10 It is therefore the settled rule that a defendant is not entitled to a severance merely because it would give him a better chance of acquittal. See United States v. Tanner, supra, 471 F.2d at 137. Thus antagonistic defenses do not require the granting of severance, United States v. Hutul, 416 F.2d 607, 620 (7th Cir.), Cert. denied, 396 U.S. 1007, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970), even when one defendant takes the stand and blames his co-defendant for the crime, United States v. Joyce, 499 F.2d 9, 21 (7th Cir.), Cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974). Even when the defendant who testified he was the victim of extortion had dealt directly with the defendant alleged to have extorted the bribe, we sustained the denial of severance. United States v. George, 477 F.2d 508 (7th Cir.), Cert. denied, 414 U.S. 827, 94 S.Ct. 49, 38 L.Ed.2d 61 (1973).
44
There may be cases, as we recognized in George, in which the conflict among defendants is of such a nature that the "jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." 477 F.2d at 515. This is not such a case. The joinder did not result in the exclusion or admission of any evidence of consequence that would not have been excludable or admissible in separate trials. Nor was any argument made that could not properly have been made in such a separate trial. There was no cognizable prejudice arising from antagonistic defenses.11
2. Curtailment of Cross-Examination
45
Janicki complains that cross-examination was curtailed because of the joinder when, during cross-examination of Benton, the trial judge delivered a general admonition against repetitious cross-examination. Neither Janicki nor the other Illinois defendants, who adopt by reference his arguments on severance, show any prejudice resulting from the admonition or point to any specific ruling curtailing their cross-examination. It was, moreover, entirely proper for the judge to attempt to forestall repetition.
46
3. Spillover Effect of Evidence Offered Against Frederick Ingram
47
Janicki also asserts that he was prejudiced by evidence offered against Frederick Ingram showing that Ingram Corporation had bribed a Brazilian corporate official between 1969 and 1971, because the conduct of the Brazilian was similar to that with which Janicki was charged. The trial court instructed the jury to consider the evidence of the earlier bribe only as to Frederick Ingram's state of mind, but Janicki asserts that this instruction was ineffective. We see no substantial risk that the jury would believe that because a Brazilian corporate officer took a bribe from Ingram Corporation, Janicki did also, and therefore we conclude that Janicki was not prejudiced by the admission of this evidence. Its admissibility as to Frederick Ingram and the effectiveness of the limiting instruction are discussed below.
48
The Illinois defendants were not deprived of a fair trial by the joinder.
B. Frederick Ingram
49
Frederick Ingram's attack on the joinder is based on the district court's exclusion of three items of evidence offered to support his extortion defense, which Ingram argues occurred because he was tried with the men he allegedly bribed.
50
1. The McPartlin Statements and the Attorney-Client Privilege Among Co-defendants and Their Counsel
51
Throughout the period covered by the indictment, Benton kept diaries, or appointment calendars, in which he made notes concerning meetings and telephone conversations, naming the persons involved and often recording the substance of the conversations. The Benton diaries figured prominently in the government's case, for they corroborated much of his testimony.
52
Destroying Benton's credibility was important to Ingram, as it was to the other defendants, even though Ingram's defense was based, in part, on the argument that he had made the payments in response to the threats Benton had reported to him, because Ingram's account of events in issue differed materially from Benton's, and because the government's case hinged largely on Benton's testimony. Since Benton's diaries corroborated so much of his testimony, it was imperative from the standpoint of all defendants that an effort be made to discredit them.
53
Such an effort was made, and Frederick Ingram and McPartlin cooperated in that effort. In a brief supporting a pretrial "Motion for Additional Time to Conduct Document Analysis," Ingram's counsel stated, with reference to contemplated tests on the Benton diaries,
54
(T)he defendant Frederic B. Ingram is not the only defendant who may be affected by the results of these tests. Besides the general effect of the doubts that may be raised as to Benton's veracity and the credibility of the diary entries, the case against at least one other defendant Robert F. McPartlin may be substantially affected by the results of the tests. From the results of the tests conducted so far, it appears that at least two of the suspicious diary entries relate to alleged payments of money to Mr. McPartlin.
55
An investigator acting for Frederick Ingram's counsel twice interviewed McPartlin with the consent of the latter's counsel12 for the purpose of determining whether there was a basis for challenging the truth of some of the diary entries. In the second of these interviews McPartlin made certain statements, which Ingram argues tend to support his defense. At trial, when Ingram offered evidence of these statements, McPartlin's counsel objected on the ground, Inter alia, of the attorney-client privilege, and the court, after an In camera hearing, sustained the objection on this and another ground.13
56
The exclusion of the McPartlin statements would not be reversible error even if he had not been entitled to claim the privilege. We are satisfied from our examination of the transcript of the In camera hearing, which was sealed and made a part of the record on appeal, that the statements merely corroborated facts which were admitted in evidence and which the jury obviously found to be true.14 We do not disclose the contents of the statements because they remain protected by the attorney-client privilege, on which we alternatively base our ruling on this point.
57
McPartlin was entitled to the protection of the attorney-client privilege, because his statements were made in confidence to an attorney for a co-defendant for a common purpose related to both defenses. They were made in connection with the project of attempting to discredit Benton, a project in which Ingram and McPartlin and their attorneys were jointly engaged for the benefit of both defendants. Ingram acknowledges that communications by a client to his own lawyer remain privileged when the lawyer subsequently shares them with co-defendants for purposes of a common defense. The common-defense rule, which is not as narrow as Ingram contends, has been recognized in cases spanning more than a century. Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822 (1871); Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413 (1942); Continental Oil Co. v. United States, 330 F.2d 347 (1964); Hunydee v. United States, 355 F.2d 183 (9th Cir. 1965); Matter of Grand Jury Subpoena, 406 F.Supp. 381, 387-389 (S.D.N.Y.1975); See State v. Emmanuel, 42 Wash.2d 799, 259 P.2d 845, 854-855 (1953); Note, "Waiver of Attorney-Client Privilege on Inter-Attorney Exchange of Information," 63 Yale L.J. 1030 (1954); Note, "The Attorney-Client Privilege in Multiple Party Situations," 8 Colum.J.L. & Soc.Prob. 179 (1972). Uninhibited communication among joint parties and their counsel about matters of common concern is often important to the protection of their interests. Note, Supra, 8 Colum.J.L. & Soc.Prob. at 179-180. In criminal cases it can be necessary to a fair opportunity to defend. Therefore, waiver is not to be inferred from the disclosure in confidence to a co-party's attorney for a common purpose.
58
In the case at bar, the judge found, as a preliminary question of fact, from the evidence adduced at the hearing held pursuant to Rule 404(a), Fed.R.Evid., that McPartlin had made the statements to the investigator in confidence. That finding is not clearly erroneous.
59
Ingram argues that the co-defendants' defenses must be in all respects compatible if the joint-defense privilege is to be applicable. The cases do not establish such a limitation,15 and there is no reason to impose it. Rule 503(b)(3) of the proposed Federal Rules of Evidence, as approved by the Supreme Court, stated that the privilege applies to communications by a client "to a lawyer representing another in a matter of common interest." See 2 J. Weinstein, Evidence 503-52 (1977). The Advisory Committee's Note to proposed Rule 503(b) makes it clear that the joint-interest privilege is not limited to situations in which the positions of the parties are compatible in all respects:
60
The third type of communication occurs in the "joint defense" or "pooled information" situation, where different lawyers represent clients who have Some interests in common. . . . The rule does not apply to situations where there is No common interest to be promoted by a joint consultation, and the parties meet on a purely adversary basis.
61
Quoted in 2 J. Weinstein, Supra, at 503-6 to 503-7. (Emphasis supplied and citations omitted.) Although the Congress, in its revision of the Federal Rules of Evidence, deleted the detailed privilege rules and left the subject of privilege in federal question cases to "be governed by the principles of common law as they may be interpreted by the courts of the United States," R. 501 Fed.R.Evid., the recommendations of the Advisory Committee, approved by the Supreme Court, are a useful guide to the federal courts in their development of a common law of evidence. 2 J. Weinstein, Supra, at 501-20.4 to 501-20.5. In this instance we follow the recommendation. The privilege protects pooling of information for any defense purpose common to the participating defendants. Cooperation between defendants in such circumstances is often not only in their own best interests but serves to expedite the trial or, as in the case at bar, the trial preparation.16
62
Ingram also seems to argue that the communication was not privileged because it was made to an investigator rather than an attorney. The investigator was an agent for Ingram's attorney, however, so it is as if the communication was to the attorney himself. "It has never been questioned that the privilege protects communications to the attorney's . . . agents . . . for rendering his services." 8 Wigmore, Evidence § 2301 at 583 (McNaughton rev. 1961); Cf. United States v. Kovel, 296 F.2d 918, 921-922 (2d Cir. 1961) (client's communications to an accountant employed by his attorney).
63
Nor was it, as Ingram contends, fatal to the privilege that McPartlin made the statement, in effect, to Ingram's attorney rather than his own. When the Ingram and McPartlin camps decided to join in an attempt to discredit Benton, the attorney for each represented both for purposes of that joint effort. The relationship was no different than it would have been if during the trial the Ingram and McPartlin attorneys had decided that Ingram's attorney would cross-examine Benton on behalf of both, and during cross-examination McPartlin passed Ingram's attorney a note containing information for use in the cross-examination. The attorney who thus undertakes to serve his client's co-defendant for a limited purpose becomes the co-defendant's attorney for that purpose. A claim of privilege was upheld in circumstances such as these where communications were made directly to the attorney for another party in In the Matter of Grand Jury Subpoena Duces Tecum, supra, 406 F.Supp. at 391. United States v. Friedman, 445 F.2d 1076, 1085 n.4 (9th Cir.), Cert. denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971), relied on by Ingram, is not to the contrary. In Friedman the court held its decision in Hunydee v. United States, supra, inapplicable, because no joint defense or common interest was alleged. The court went on to state, in the footnote relied upon, that even if Hunydee was applicable, there was no privilege since "the facts of the conversation negate confidentiality." 445 F.2d at 1085 n.4.
64
Inasmuch as McPartlin was entitled to assert the privilege whether Ingram was tried jointly or separately, no prejudice would have resulted from the joint trial by reason of the exclusion of the McPartlin statements even if those statements had not been merely cumulative.
2. Relevance of Threats Against Benton
65
Frederick Ingram also argues that joinder caused specific prejudice through the trial court's exclusion, as prejudicial to other defendants, of evidence of threats of physical harm directed against Benton. The short answer is that prejudice to other defendants was not the only ground for the exclusion. The excluded evidence consisted of testimony by Ingram that in the fall of 1972 Benton expressed fear for his own physical well-being if Ingram refused to make the promised payments to the Chicago officials, and testimony by two other witnesses that Benton told them in October 1974 that someone had threatened him with physical harm. To begin with, both statements by Benton were said to have been made long after February 1972, when Ingram, by his own admission, authorized Benton to make payments to secure the contract. There is no indication in the record that the second, made long after all payments were made was ever communicated to Ingram. The alleged threats were directed at Benton, not Frederick Ingram, who had no dealings in the matter with anyone outside Ingram Corporation. Finally, Ingram's theory throughout the trial was economic, not physical, coercion.17 The evidence was properly excluded as irrelevant, and it would have been equally irrelevant if Ingram had been tried separately.
66
3. Relevance of an Unrelated Payment by a Third-Party
67
Frederick Ingram also contends that the joinder caused the exclusion of evidence that an attorney who represented Ingram Corporation before the Illinois Commerce Commission made a $5,000 contribution to McPartlin's reelection campaign fund, and that the payment was motivated in part by McPartlin's having recommended the attorney's firm to Ingram Corporation. There was no showing that the attorney was coerced. This evidence, offered first by the prosecution and then by the Ingrams, was rightly excluded on both occasions as irrelevant. In rejecting the Ingram offer the court said that it "could be prejudicial to McPartlin without being probative of any issue as far as the Ingrams are concerned." Prejudice to McPartlin aside, the trial court was correct as to the probative value of the evidence.
68
We therefore conclude that the denial of the motions for severance was not error.
SPRECHER, Circuit Judge:
69
I concur in the portions of this opinion prepared by Judges Pell and Tone.
II.
Extortion Defense Instruction
70
As noted earlier, defendant Ingram never denied making certain of the illicit personal payments to officials of the Sanitary District. Instead Ingram premised his defense to the counts relating to these payments on the theory that these payments were not intended as bribes but were extorted from him by threats that, unless these payments were made, the Sanitary District would, contrary to an alleged understanding, refuse to purchase the pipeline which Ingram had already constructed and would invoke the liquidated damages clause to further penalize Ingram Corporation.18 In relation to these arguments, the trial court gave the jury the following instructions on the defense of extortion:
71
Now, I have just told you that willful conduct, which is required in each of the crimes charged in this indictment, must be voluntary.
72
One of the defenses raised by the Defendants Frederick B. Ingram and E. Bronson Ingram is that they authorized certain payments to be made only because they were told unless the payments were made, the pipeline would not be paid for and the liquidated damage provision would be used against Ingram Barge Company in an unreasonable and punitive manner. These defendants claim, therefore, that they did not commit bribery or conspire to commit bribery and lacked the intent to bribe.
73
In analyzing this defense, there are several things for you to consider. First, you should determine whether a defendant did in fact authorize payments because of a fear of economic loss. If you find that a defendant did authorize any of the payments in question, but that he did so solely to procure an economic advantage rather than out of fear of an economic loss, then this defense that the act was involuntary must fail.
74
On the other hand, if you do find that a defendant authorized payments because of his fear of economic loss, then you should proceed to a consideration of whether that fear of economic loss was such as to render his action involuntary within the meaning of the law.
75
There are several things to consider in this connection. First, did the defendant fear loss as a result of a withholding of something to which he believed Ingram Barge Company was already legally entitled? Specifically, did the defendant believe that the Metropolitan Sanitary District was already under a legal obligation to pay Ingram Barge for the pipeline? Did he believe that the threatened assessment of liquidated damages was legally unjustified?
76
The answers to these questions are important because there is a difference between paying a public official for something one is entitled to receive and paying a public official for something one is not entitled to receive.
77
If one does not believe he is legally entitled to receive the thing in question, then, no matter how much he needs it and no matter how great the economic loss one might suffer by not receiving it, there can be no legal justification for paying a public official to get it. Such a payment is bribery, pure and simple.
78
However, if one is legally entitled to the thing in question or in good faith believes he is legally entitled to it, then the fear of economic harm from not receiving it may be sufficient to render the act of payment involuntary, depending upon three additional considerations: The seriousness of the economic harm perceived by the defendant, the effect that perception had on his ability to exercise free choice, and the defendant's awareness of reasonable alternatives to the making of the demanded payments.
79
If a defendant did not in fact fear serious economic harm or if his fear did not substantially impair his ability to exercise free choice or if he was aware of actions he might take to forestall the harm without making the payments and chose not to take those actions, then his conduct in authorizing the payment cannot be considered involuntary within the meaning of the law.
80
In order to prove, therefore, that a defendant acted willfully as opposed to involuntarily in authorizing a payment, the government must prove one of the following things: (a) that the defendant was not motivated by a fear of economic harm in authorizing the particular payment, or (b) the thing which the defendant sought to obtain by making the payment was not something he believed Ingram Barge Company was legally entitled to have without making the payment, or (c) the defendant did not perceive the threatened economic harm to be of serious magnitude, or (d) the defendant's fear was not such as to substantially impair his ability to exercise free choice, or (e) and finally, the defendant was aware of reasonable alternatives to making the payments and chose not to pursue those alternatives.
81
Defendant Ingram urges that this instruction was prejudicial error in three respects. In considering these contentions we shall assume without deciding, that as the instruction states, under Illinois law, if one who pays a bribe is or believes himself to be "legally entitled" to have the official take the action induced by the bribe, "then the fear of economic harm from not receiving it may be sufficient to render the act of payment involuntary." This court's decision in United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), Cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), in the following words, left open the question whether this is so but did establish the rule applicable in the case of a discretionary official decision:
82
(A)t least in a case where a discretionary or legislative decision . . . has been requested, the withholding of such action until a money demand is met could not negate the intent (to influence the performance of an official act) required by the Illinois bribery statute.
83
Id. at 84.
84
First, Ingram argues that the distinction between economic loss and gain was erroneous. The prejudice from this distinction allegedly arose from the fact that the jury was likely to define economic loss as the payment of money and economic gain as the receipt of money and therefore might have rejected the extortion defense out of hand on the ground that the admitted object of the payment was to complete the sludge-hauling project and thereby gain a profit. In response we note initially that Ingram here has too narrowly characterized his own defense. Ingram asserted throughout the trial and continues to assert before us that the payments were at least in part motivated by a desire to avoid assessment of liquidated damages. Even under the simplistic construction of the loss-gain distinction which Ingram alleges was most likely, this would constitute an economic "loss" thereby preventing the jury from rejecting the defense on the basis of the loss-gain distinction.19 Moreover it is not clear that Ingram preserved this objection for appeal; the written objection to the instruction tendered at trial makes no mention of any error in this distinction.20 Finally, we are not convinced that the jury would put such a simplistic construction on the loss-gain distinction. Certainly it requires no extraordinary economic acumen to realize that the receipt of money may not represent an economic gain if the amount received is less than an amount to which one was previously entitled. Conversely, an ordinary juror would certainly realize that a real economic gain accrues only when a person becomes entitled to something to which he had no prior entitlement, that is, when a discretionary official act is performed for his benefit. The district court followed this gain-loss instruction with a discussion of the concept of entitlement, explicitly denoting a "loss" as a failure to receive a benefit to which one was entitled, thereby further clarifying the interdependent relation between these two concepts.21
85
Ingram advances a second attack on this instruction. He argues that the district court erred in instructing the jury that the extortion defense is unavailable if the defendant did not believe that he had a legal entitlement to the official action. Once again we must note that this objection appears not to have been properly preserved for appeal, since Ingram's objection to the trial court did not criticize the entitlement aspects of the instruction.22 Even if this objection were properly preserved, it lacks merit. The district court's instruction is consistent with Peskin.23
86
Ingram's final objection to the trial court instruction is that the instruction, by its emphasis on the voluntariness of the payments, implicitly disallowed the extortion defense and permitted only the narrower defense of duress. Assuming that the distinction drawn in United States v. Barash, 365 F.2d 395 (2d Cir. 1966), between the defenses of duress and extortion is correct,24 the instruction could not have prejudiced Ingram since Ingram, before this court and the trial court, characterized his own conduct in such a way as to absolutely preclude the availability of the extortion defense, even assuming that the voluntariness of his conduct alone would not negate the extortion defense. Ingram, during the course of the trial, admitted that he had no legal entitlement to the benefits which his payments were designed to obtain.25 Accordingly he is absolutely precluded from prevailing on an extortion defense under Peskin, which makes that defense unavailable where the defendant is seeking to obtain a benefit not owed and thus the emphasis of the instructions on involuntariness could not have harmed the defendant.26
III.
87
Evidence of Ingram's Bribes of Foreign Officials
88
At trial the government, seeking to rebut Ingram's testimony that he made the payments only as a victim of extortion, sought to demonstrate that in other instances Ingram had been willing to make such payments without the alleged incentive of extortion. The trial court carefully screened this proffer with an ex parte review of the evidence, an in camera meeting with all counsel, and a voir dire of the government witnesses. After this careful consideration, the court, although rejecting a substantial portion of the government's offer of proof,27 permitted the government to introduce testimony that Ingram had made surreptitious payments to an employee of a semi-official Brazilian corporation in order to receive preferential treatment.
89
The government introduced at trial the testimony of Chris Daley, an official of the Ingram Corporation, to establish the government's account of Ingram's alleged prior bribe. Daley testified that in 1967 the Ingram Corporation became interested in engaging in an off-shore drilling project conducted by Petrobas, a Brazilian oil company owned jointly by the Brazilian government and private investors. Daley and Benton then met with Levindo Caniero, the Petrobas official with responsibility for procuring the contractor for the off-shore drilling. As a result of this meeting, Caniero agreed to provide inside information to Ingram Corporation to assure that it was low-bidder in exchange for a "payoff or commission." Benton, Daley and Caniero agreed that these payments should be made into a Swiss bank account. The contract was then awarded to Ingram Corporation through a letter of intent. However, Caniero threatened to withdraw the letter of intent because of a delay in Ingram Corporation's establishment of a Swiss account for him. At this point Daley informed Ingram that the letter of intent was about to be lost because of the delay in making the payoffs. Ingram then put Daley in touch with an international banker at Lehmann Brothers to expedite the establishment of the account. Subsequently, between 1969 and 1973, $172,000 was paid into the account.
90
We hold that this evidence was properly admissible against Ingram in that it tended to refute Ingram's defense that he lacked the intent to bribe the Chicago defendants and made the payments only to satisfy extortionate demands. Rule 404(b) of the Federal Rules of Evidence permits proof of prior crimes or acts where it is used for such purposes "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." This provision has been interpreted as permitting admission of evidence of prior acts as long as it has a substantial relevance to an issue other than showing that the defendant has a criminal character and therefore possesses a propensity to commit criminal acts. See, e. g., United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978). Or, as this court has held, such evidence is admissible "if, entirely apart from the matter of 'propensity,' it has a tendency to make the existence of An element of the crime charged more probable than it would be without such evidence." United States v. Fairchild, 526 F.2d 185, 189 (7th Cir. 1975), Cert. denied,425 U.S. 942, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976) (emphasis added).
91
Ingram forwards three attacks on the admission of this evidence. First, he claims, the prior payments to Caniero were not sufficiently similar to the payments for which he was indicted to establish their relevance to his intent. Before examining the particular dissimilarities urged, we note that there is no requirement that the prior acts be virtually identical to the charged acts and that it is sufficient that the acts be similar enough and close enough in time to be relevant. The major thrust of Ingram's argument is that there is no showing that the Brazilian payments were either illegal or immoral since such payments are simply a way of doing business in Brazil. Initially we must note that we would be loathe to assume that surreptitious payments to governmental or private officials is a common and accepted practice in Brazil absent proof to that effect. Ingram admits that neither he nor the government offered proof on that matter, and thus this argument rests solely on Ingram's facile and unsupported characterizations of Brazilian practice. However, even were we to accept that such payments are a legal and accepted practice in Brazil,28 we do not find that fact sufficient to differentiate the two transactions. In United States v. Boggett, 481 F.2d 114 (4th Cir.), Cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973), the government was permitted to introduce in a Travel Act bribery prosecution against a zoning official evidence showing a series of transactions wherein gifts were made to the official and favorable actions by him on behalf of the donor followed shortly thereafter. The defendant urged that since no showing of a Quid pro quo had been made by the government there was nothing to establish anything improper in these transactions. The court, however, admitted the evidence holding that regardless of the propriety of the individual's acts, the evidence demonstrated a course of conduct which indicated the defendant's "preference for favors and gifts over his public duty." Id. at 115. Likewise here, whatever the moral and legal status of the Brazilian payoffs, they indicate that the defendant had knowingly circumvented ordinary business channels with "facilitating payments." Admittedly the illegality of such payments to government officials in the United States would make such payments less likely than those not involving illegality; that, however, does not deny that one making such payments, legal or not, is more likely to have the intent to influence official action by similar payments in other instances than one who has never made such payments.29 The other differences urged by Ingram are even less substantial. The fact that the Brazilian official was an employee of a semi-public entity and that the indictment alleged payments to employees of a wholly public governmental entity is a completely negligible difference, unless of course one makes the irrational assumption that one who would knowingly cheat both the public and private investors would not knowingly cheat the public alone. Nor is it relevant that the Brazilian payoff was not initiated by Ingram: we can see no difference in active participation in making payments suggested by another and initiation of the suggestion itself, since one who is willing to perform the essential act of bribery that is, to dispense the bribe moneys themselves must be presumed to have also been willing to suggest the bribe. Finally, we reject Ingram's characterization of the Brazilian transaction as involving less harm that the Sanitary District bribes since the latter added the amount of the bribes onto the contract price. Nothing in this record suggests that the amounts charged to Brazil would not have decreased once the cost of the project was reduced by the amount of the bribes. Further, it is axiomatic that for a competitively-bid project, where no inside information was available, Ingram would have bid less and therefore charged less than where the project is guaranteed by virtue of a bribe and Ingram could set its own price. It is therefore completely disingenuous to suggest that the level of harm differed.
92
Ingram's second objection is that there was no clear and convincing proof that Ingram knew the purpose of the payments made to Caniero. We have held that there must be clear and convincing evidence of the prior act to justify its admissibility,30 and we find that there is evidence in the record to meet that standard. Daley testified in camera as to Ingram's reaction when he learned of the payments and that Benton's delay in setting up the account might lead to a revocation of the letter of intent. Daley stated:
93
Benton was to open it, which we wouldn't do. So that's when I called Fritz, and Fritz says, "Jesus Christ. How did you get into that," or whatever. And he says, "Okay, okay. We will go ahead and call him back and see what we can put together."(Tr. 5638). At trial, Daley testified as to Ingram's response to knowledge of the payments in the following terms: "Mr. Ingram, in disgust, says 'Well, okay. I will see what I can do about it. . . .' " (Tr. 5674). It is difficult to understand why Ingram would have responded "in disgust" or with queries as to how Daley became involved "in that" unless he knew that the payments were illicit payments made to procure unauthorized benefits or at least were improper in some respect. Furthermore, the government introduced a memorandum sent out by Daley to Ingram in which Daley stated that he knew after speaking with Petrobas personnel that Ingram would be the low bidder and that Caniero had assured Daley that "we could count on him for any assistance we need." Considering all the evidence, particularly Ingram's reaction to Daley's statement and his knowledge that Ingram was assured to be the low bidder, there is a convincing portrait of Ingram's knowledge of the purpose of the Caniero payments.
94
Finally, Ingram urges, relying on Rule 403 of the Federal Rules of Evidence, that the prejudicial impact of the evidence outweighed its relevance and therefore should have been excluded. Ingram must sustain a heavy burden to succeed on this argument since the careful balancing of the probative value of prior acts versus their possible unduly prejudicial effect is uniquely appropriate to the informed discretion of the trial judge. See United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), Cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976); United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978). More precisely, this balancing entails considering whether the probative value this evidence had in indicating that Ingram's intent was to bribe, not to satisfy extortionate demands, outweighs its possible prejudicial effect, that is, the possibility that the jury will take the evidence to be indicative of a criminal disposition.
95
The highly judgmental character of this test mandates that we not restrike the balance ourselves but instead examine only the manner in which the district court exercised its discretion. The record here shows that the trial court was meticulous and deliberate in its decision to admit the evidence. The trial court heard in camera evidence of a number of prior acts which the government had sought to introduce.31 After extensive discussion the court permitted proof only of the Petrobas transaction. Further, the court required the government to present its witness to the Petrobas transaction in camera to confirm the substance of the testimony. Finally, to minimize any prejudice the court preceded the presentation of this witness's testimony before the jury with an extensive limiting instruction emphasizing that Ingram was not "on trial" for this previous transaction, that the evidence was to be considered only as it concerned Ingram's intent in the Sanitary District transaction and that the court passed no judgment on the value of this evidence. Courts have often looked to these factors indicating due consideration to uphold the trial court's judgment. See, e. g., United States v. Carleo, 576 F.2d 846 (10th Cir. 1978). In particular the use of limiting instructions has been accorded great significance. See United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978). We therefore decline to hold that the trial court abused its discretion.
IV.
96
Government's Compliance with Brady v. Maryland
97
During his opening statement, counsel for the government revealed that the principal government witness, Benton, had embezzled and applied to his own benefit $375,000 of the money he obtained from Ingram in order to pay off the Chicago defendants. Although the government had turned over to the defendants both Benton's and Ingram Corporation's financial records, from which the government asserts the defalcations could have been discerned by the defendants, the government did not turn over to the defendants Benton's grand jury testimony in which he referred to the $375,000 as "the amount of money I am responsible for keeping," nor did the government disclose that Benton had expressly admitted the embezzlements in interviews with government counsel. Defendants McPartlin and Janicki, relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), urge that this failure to disclose this information earlier violated their Due Process rights and mandates reversal of the convictions.
98
We note initially that Brady and its successor, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), address a thoroughly different problem than the one before us. The concern of Agurs and Brady is whether the suppression of exculpatory material until after trial requires that a new trial be given so that this evidence may be considered. The Court in Agurs characterized the situations to which the Brady principles apply as those involving "the discovery, After trial, of information which had been known to the prosecution but unknown to the defense." 427 U.S. at 103, 96 S.Ct. at 2397 (emphasis supplied). Indeed the standard developed in Agurs can only sensibly be applied to the suppression of evidence throughout the trial: "if the Omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. Id. at 112, 96 S.Ct. at 2402 (emphasis supplied).
99
The defendants here, however, do not complain of a total suppression of favorable evidence but merely attack the timing of the disclosure of such evidence. Here the prosecutor did not conceal or withhold evidence of Benton's defalcations but waited until early in the trial to reveal them.32 There is nothing in Brady or Agurs to require that such disclosures be made before trial, and we have explicitly held this in the past. United States v. Stone, 471 F.2d 170, 173-74 (7th Cir. 1972), Cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973). See also United States v. Lomprez, 472 F.2d 860 (7th Cir. 1972), Cert. denied, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973). Thus, even though evidence might be material or might create a reasonable doubt as to guilt, Due Process, albeit requiring eventual disclosure, does not require that in all instances this disclosure must occur before trial.
100
The appropriate standard to be applied in a case such as this is whether the disclosure came so late as to prevent the defendant from receiving a fair trial. See United States v. Stone, 471 F.2d at 174. After considering the record and the claims of prejudice forwarded by the defendants, we cannot say that this disclosure came so late as to violate Due Process.
101
The defendants, apparently relying on their misinterpretation of Brady as a constitutional mandate for pretrial discovery, concentrated on the exculpatory nature of the evidence and barely developed before this court any specific ways in which they were prejudiced by this delay.33 McPartlin merely argues that, had the Benton embezzlements been revealed before trial, "specific requests could have been directed toward more detailed information concerning these (embezzled) funds. . . . A thorough investigation into the disposition of those funds which he admittedly retained might have revealed that additional funds were similarly expended, deposited or hidden." Brief for Defendant McPartlin at 34-36. It is difficult for us to discern any undue prejudice on this basis. To begin with, there was nothing to preclude the defendants from having made additional investigations between the time of the disclosure and the close of the evidence almost two months later, and yet nothing in the record reveals that defendants directed any further inquiries to Benton. This omission is even more important given the statement of the trial court that it would reconsider the defendant's motion for a recess if it later became apparent that "anyone has in fact been prejudiced by a late disclosure." Tr. at 250. Nor did the defendants subsequently renew their request for a continuance. Thus, given the failure of the defendants to pursue adequately any subsequent investigation and their subsequent failure to request additional time for any investigation thoroughly discredits their assertion that they were prejudiced by the timing of the disclosure.
V.
Admission of Benton's Desk Calendars
102
At trial the government introduced as exhibits over the objections of the defendant, the desk calendar-appointment diaries of William J. Benton described above, Part I, B, 1. These diaries documented in some detail the dealings of Benton with the Chicago defendants. As a foundation for admission of the diaries, Benton testified that he had kept such business diaries since 1952 or 1953 and that he maintained these diaries during the period of his dealings with Metropolitan Sanitary District officials. Benton further testified that he kept these diaries and made entries in them as a regular part of his business activity as a vice-president of Ingram Corp., noting in them anticipated meetings, telephone calls, personnel matters and bids. These entries were characterized by Benton as "things which I would need to look back on," to recall a bid or to prepare letters and memoranda, for example.
103
In admitting the diaries the trial court made the following findings:
104
It was the regular course of business for Mr. Benton to make entries in diaries about the things he did during the course of a business day, where he went, what people said to him, what commitments he made and what commitments were made to him in connection with that business. The entries that are contained in the diary, in the series of diaries, do pertain to Ingram's business.
105
The contents of the diaries further indicated their reliability to the district court:
106
I find no indication of a motive to falsify. At the time these entries were made back in 1971 and 1972, there is not the slightest bit of evidence to suggest that Mr. Benton thought this scheme was going to be disclosed; that he thought that he would be caught. There is nothing self-serving about these entries. They implicate Mr. Benton in serious criminal misconduct. Indeed, if he were unavailable, I think these diaries might well be admissible as statements against penal interest, so incriminatory are they of Mr. Benton.
107
So I think they have the earmarks of reliability in that sense.
108
We agree with the district court that these diaries were admissible. These diaries clearly fulfilled all the requirements which justify the admission of business records under Federal Rule of Evidence 803(6). These records were kept as part of a business activity and the entries were made with regularity at or near the time of the described event. Most importantly these diaries satisfied the central rationale of the business records exception: since Benton had to rely on the entries made, there would be little reason for him to distort or falsify the entries.
109
The application of the business record exception to documents differing greatly from the classic "shopbook" or business ledger is well established. See, e. g., United States v. Reese, 568 F.2d 1246 (6th Cir. 1977) (scrapbook of press clippings compiled by public relations department); United States v. Yates, 553 F.2d 518 (6th Cir. 1977) (letter from bank to employees describing recent robbery); Magnus Petroleum Co. v. Skelly Oil Co., 446 F.Supp. 874 (E.D.Wis.1978) (corporate officer's personal notes of business negotiations); Aluminum Co. v. Sperry Products, Inc., 285 F.2d 911, 916 (6th Cir. 1960), Cert. denied, 368 U.S. 890, 82 S.Ct. 139, 7 L.Ed.2d 87 (1961) (inventor's diary of progress on invention). Moreover, the business record exception has been applied to admit documents indistinguishable in kind from Benton's desk calendars. In United States v. Evans, 572 F.2d 455 (5th Cir. 1978), the court permitted the introduction of "pocket-size appointment calendars known as 'daytimers.' " Id. at 487. The court noted in support of its holding that these calendars were business records that "(t)he entries purport on their face to list . . . business entertainment expenses . . . (and) such documents were used as a matter of company policy." Id. at 488. Likewise, the calendars here on their face describe business matters and, even if not mandated by Ingram policy, were kept in accord with the widespread practice of business executives to maintain such records.
110
Defendants McPartlin and Weber have argued that several facts differentiate the records here from admissible business records. First, the defendants stress that some of the entries in the calendars were made out of sequence. The defendants' document expert testified that fifteen entries out of all those made over a two-year period were made out of sequence. We do not however agree with the defendants that nonsequential entries preclude admissibility as business records. Although there is no dispute that Benton's entries in a few cases did not proceed page by page in the book, the defendants' document examiner could not disprove Benton's statements that entries were made at or about the time of the described event.34 Indeed, it seems to us that insisting that entries proceed methodically from the first to last page is as pointless as insisting that ledger and account entries proceed in alphabetical order or from top to bottom. As long as the entries satisfy the contemporaneity and regularity requirements, their sequence is irrelevant. This point was made clear by the Tenth Circuit in United States v. Carranco, 551 F.2d 1197 (10th Cir. 1977). There the defendants attempted to block the admission of freight bills on the ground that some of the notations on the bills occurred after the document had been completed by the freight originator. The court rejected this argument noting:
111
The notations on the freight bill were explained by the witnesses, and this is probably more than is required by the business records exception to the hearsay rule. As pointed out by the appellee, a freight bill is not meant to be a static document nor is it used as such. As testified to by those familiar with the shipping business, a freight bill is used by many different people and it is their job to make notations on the freight bill so it will continue to be an accurate description of the shipment. It was adopted by ICX as its record, in the regular course of its business, when the ICX driver signed it as he picked up the interline shipment. He used it as an ICX record, verified the shipment, and made the notations on it. The notations as testified to by the witnesses were thus also made in the regular course of business of ICX. One of the freight bill copies went into the ICX terminal records, and one or more copies continued with the shipment. The requirements of Rule 803(6) of the Federal Rules of Evidence were met.
112
Id. at 1200. Similarly here there is no reason to require that an appointment calendar remain a "static document"; indeed as appointments and other matters change the calendar to be useful must be nonsequentially revised. The only requirement is that these revisions be contemporaneous and regular, and the defendant's proof of simple nonsequentiality does not rebut Benton's testimony that the entries were made regularly and contemporaneously. However, even if several of the entries were made non-contemporaneously, it remains within the district court's discretion to determine whether the few non-contemporaneous entries so undermine the reliability of the record as to preclude admissibility. Given that there were only fifteen non-sequential entries over a two year period, even if many of these were shown to be non-contemporaneous, we could not say that this discretion was abused.
113
The defendants also urge that these diaries could not be business records because they were relied on by no one other than Benton and in any event contained many entries of a purely private nature, Viz., the alleged extortion scheme engaged in by Benton which supposedly was not related to Ingram Corporation's official business. However, nothing in the text or comments to the Rule provides any indication that a necessary prerequisite to the reliability of a business record is verification by persons other than the one making the entry. Indeed, the Advisory Committee Notes appear to suggest otherwise:
114
The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.
115
Certainly the second and fourth, and possibly the first, indicia of reliability contemplate only the accuracy imposed by the record keeper on himself. Accordingly, admissibility has been upheld even in instances in which the records were made only for the benefit of the record keeper himself and not for the benefit of the entire business entity. See United States v. Prevatt, 526 F.2d 400, 403 (5th Cir. 1976); Aluminum Co. of America v. Sperry Products, Inc., 285 F.2d 911, 916 (6th Cir. 1960), Cert. denied, 368 U.S. 890, 82 S.Ct. 139, 7 L.Ed.2d 87 (1961).
116
Nor do we consider it significant that the illegality of Benton's activities may have removed these actions in some technical sense from a narrow construction of his duties at Ingram. This argument proceeds on the false premise that because Benton's activities were not a part of Ingram Corporation's business, they could not be a business at all. United States v. Re, 336 F.2d 306 (2d Cir.), Cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177 (1964), addressed, and rejected, such a contention. There the defendant after having gained control of a company, engaged in a fraudulent scheme for the distribution of that company's securities for his own personal benefit. The court was unpersuaded that records relating to that scheme, since they were not part of the company's business, could not constitute business records. The court pointed out that the defendant, "while distributing a huge block of control stock to the investing public through a complex system of brokerage accounts and over-the-counter sales, was engaged in a 'business,' " albeit a business of his own and not the company's. Id. at 313. The court further rejected the notion that business records would lose admissibility as such because of the illegality of the underlying business. We think that the same rationale applies here. Benton was engaged in systematically negotiating under-the-counter payments either for himself or the Chicago defendants in order to facilitate the award of business contracts. Although this is not a business of "the usual orthodox nature" (Id.), there is no question that this bribery scheme was as much a business as a fraudulent securities-marketing scheme.
117
However, even if there were to be some question as to whether Benton's activities constituted an independent business, we believe that his activities can also be characterized as part of Ingram's business. As long as the recorded activities had become, properly or not, an integral part of Benton's business activities for Ingram, the records are not too personal to preclude admissibility under this exception. In this matter we are persuaded by United States v. Schiller, 187 F.2d 572 (2d Cir. 1951). There the defendant, a government employee in the Rent Control Program, maintained a diary which evidenced a bribe paid to him. The court, in refusing to consider a Fourth Amendment challenge to the admission of the diary premised on the personal, non-official nature of the papers, noted:
118
We think . . . there was a sufficient showing that the entries introduced in evidence dealt with official duties. Such matters as rent adjustments and recommendations regarding the same were within his general duties, Whether he performed them rightly or wrongly, at lunch or elsewhere. . . .
119
187 F.2d at 575 (emphasis supplied). Certainly if such papers have sufficient business character to remove them from the personal paper protections of the Fourth Amendment, they have sufficient reliability to permit admissibility.
120
Defendants finally rely heavily on Buckley v. Altheimer, 152 F.2d 502 (7th Cir. 1945) in support of their position. In Buckley, this circuit declined to permit, under the business record exception, the admission of a diary which contained entries documenting the amount of indebtedness between two parties, Frost and Altheimer. The court, in denying admission, noted that "(t)he book did not contain any regular set of entries relating to any accounts between Frost and Altheimer." Id. at 507. It was argued that, although no claim was made that the entries in the diary occurred in the regular course of business and was "informally kept," the diary should have been admitted because the entries were made "precisely and meticulously." Id. The court rejected this argument, stating that "private diaries as distinguished from account books or individual memoranda of particular transactions" are inadmissible. Id. at 508. It is this latter statement upon which the defendants rely.
121
We believe however that the defendants' emphasis on the court's language concerning "private diaries" is misplaced. We do not believe that the court there intended to make any Per se rule precluding the admissibility of private diaries; instead it is clear that the decisive factor in that case was that no regular entries had been made documenting the relationship. The desk calendar before us is clearly a record of a different order: regular and frequent entries documenting the relation between Benton and Sanitary District officials were made systematically for the purpose of allowing Benton to rely on its accounts of the status of the relationship.
122
We note as a final matter that even if any of the defendant's arguments were sufficient grounds to prevent admission of these diaries under the business record exception, they would be admissible under two other exceptions. First, they would be admissible under the "residual" exception, Federal Rule of Evidence 803(24).35 A number of factors combine to demonstrate the reliability of the entries: the highly self-incriminatory nature of the entries themselves, the regularity with which they were made, Benton's need to rely on the entries. Where evidence complies with the spirit, if not the latter, of several exceptions, admissibility is appropriate under the residual exception. See generally, United States v. Ianconetti, 406 F.Supp. 554 (E.D.N.Y.), Aff'd, 540 F.2d 574 (2d Cir. 1976), Cert. denied,429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977) (especially Judge Weinstein's opinion for the district court). Furthermore the degree of reliability necessary for admission is greatly reduced where, as here, the declarant is testifying and is available for cross-examination, thereby satisfying the central concern of the hearsay rule. Second, these calendars would also be admissible under Rule 801(d)(2)(E) as statements "by a coconspirator of a party during the course and in furtherance of the conspiracy." Since these entries were made so that Benton could rely on them in carrying out his scheme, they aided and were "in furtherance of" the conspiracy. See United States v. Evans, 572 F.2d 455 (5th Cir. 1978).
VI.
Weber's Prior Consistent Statements
123
The government's evidence revealed that the first installment of the bribe money consisted of $75,000 given to McPartlin in Weber's presence. Some part of that amount consisted of thousand-dollar bills. The government further presented evidence to establish that three days after this cash payment, Weber deposited nine thousand-dollar bills in the bank account of one of the companies controlled by Weber. Weber, in an attempt to rebut the damaging inferences that could properly be drawn from such a cash deposit, testified that he obtained this money from a safe-deposit box maintained by himself and his mother. His mother testified that they indeed had such a joint safe-deposit box and that it did contain several thousand-dollar bills. As further corroboration, Weber sought to introduce the testimony of his accountant, as well as the accountant's copy of the bank statement recording the deposit. In an offer of proof Weber indicated that the accountant would testify that in 1973, two years after the deposit, Weber told him, in connection with his preparation of an IRS audit, that the funds were obtained from Weber's mother. The proffered bank statement contained the accountant's notation next to the sum: "Overdraft covered and paid in cash from Mother (per FNW)." The trial court refused the admission of the accountant's testimony and his copy of the bank statement. Defendants McPartlin36 and Weber urge that this was error.
124
Two theories of admissibility are advanced. First, it is argued that the evidence was admissible under Federal Rule of Evidence 801(d)(1)(B) as a prior consistent statement.37 We do not believe, however, that these statements were admissible under this theory. Evidence offered under this theory must have some probative value in rebutting the implied charge of recent fabrication or improper motive. However, where a motive to falsify also existed at the time of the earlier statement, it possesses no such probative value. As Judge Weinstein correctly pointed out in his treatise on the Federal Rules:
125
Substantive use under Rule 801(d)(1)(B) is limited to situations where high probative value is most likely . . . . Evidence which merely shows that the witness said the same thing on other occasions when his motive was the same does not have much probative force "for the simple reason that mere repetition does not imply veracity."
126
4 J. Weinstein & M. Berger, Evidence P 801(d)(1)(B)(01) at 801-100 (1977). Obviously Weber would have had no more reason to tell the IRS that the proceeds were illegal bribes than he has a motive now to tell that to a jury in a criminal prosecution. Indeed, Weber would have even had a further reason not to tell the IRS that the $9,000 was part of a kickback: a bribe would be includable in Weber's gross income whereas an appropriation of jointly-held funds might not have been. Thus, we do not feel that these prior statements were admissible under 801(d)(1)(B).
127
As a second ground of admissibility, Weber and McPartlin urge that the bank statement was admissible as a business record under Federal Rule of Evidence 803(6). This argument creates a paradoxical tension with their arguments that Benton's desk calendars were not business records. The defendants assailed the diaries on the grounds that the entries were not made at or near the time of the event related (but recorded in advance as reminders of appointments) and that many of the entries were derived from "second or third-hand information." Brief for Defendant Weber at 7. Yet the defendants urge that a single notation of a cash transaction made more than two years after the transaction and based solely on information supplied by someone other than the person making the entry constitutes a business record. We do not rely on these two grounds, however, to uphold the exclusion of the notation on the bank statement. Instead we find a more fundamental flaw in this evidence: this notation, unlike those in Benton's diaries, was not made for future reference and reliance but was made in anticipation of IRS litigation. The defendants appear to admit this fact, and the trial judge was informed of this. (Tr. 1363-69). As such prelitigation records, we hold that they lacked sufficient trustworthiness to permit admissibility. Indeed, this case is not significantly distinguishable from Hartzog v. United States, 217 F.2d 706 (4th Cir. 1954), which was cited by the Advisory Committee Notes to Rule 803(6) as an example of insufficient trustworthiness. In Hartzog the court held it was error to admit the worksheets of an IRS agent, deceased at the time of trial, that had been prepared from his examination of the defendant's records in preparation for a tax-evasion prosecution. The court explained the reasons for finding insufficient trustworthiness as follows:
128
These worksheets were made in preparation for this prosecution; they were Baynard's (the agent's) personal working papers, were the product of his judgment and discretion and not a product of any efficient clerical system. There was no opportunity for anyone . . . to tell when an error or misstatement had been made. These worksheets were not more than Baynard's unsworn, unchecked version of what he thought (the defendant) Hartzog's records contained.
129
Id. at 710. The records made by Weber's accountant are no more trustworthy than those prepared by the agent in Hartzog: they were prepared as a matter of his judgment and discretion; they were not produced as part of any regular system; there was no reliance on these notations by the accountant or others to guard against error or misstatement. If anything, the records in this case are less trustworthy since, unlike Hartzog where the agent examined records that the defendant had prepared for his own use, these notations were the product of Weber's own representations for the purposes of the audit, thereby furthering the possibility of misstatement. Accordingly, we hold that the trial court properly exercised its discretion to exclude these records.38
PELL, Circuit Judge:
130
I concur in the portions of this opinion prepared by Judges Tone and Sprecher.VII.
Weber's Political Acquaintances
131
Henry Weber, brother of Franklin Weber, called as a Government witness, was permitted to testify on direct examination without objection that his brother Franklin was an acquaintance of Clyde Choate. He was then asked whether his brother was an acquaintance of Paul Powell to which he also responded in the affirmative. An objection was made, without any specificity, following the answer as to Powell. There was no motion to strike the answer and the "objection" as such was overruled. No effort was made at the time to demonstrate to the trial judge any particular basis for the objection.
132
Subsequently during redirect examination Weber moved for a mistrial on the basis of the Powell matter because "(i)t was highly prejudicial and has no relation whatsoever to this case." The court in denying the motion, properly from our examination of the record, observed that:
133
the reason I let that in is that you cross examined several witnesses about whether or not there was any reason to believe Mr. Weber had any political connections, whether it was credible to believe that he knew anybody, and there again, that is something you opened up.
134
Without specific reference to Powell, Weber again moved for a mistrial following final argument. He now says that which he didn't say to the court specifically that on the basis of Fed.R.Evid. 404(b) the testimony as to Powell was improper and prejudicial in the light of widely-circulated publicity of wrongdoing on the part of Powell when he was Secretary of State of Illinois. Certainly in any trial and particularly in a complex trial involving numerous defendants such as the present case, a lawyer should make clear to the trial judge the exact nature of the claimed prejudice, which was not done here. Even, however, if we assume what probably was a fact that the notoriety given to the Powell case some seven years earlier was such as to make it clear why Weber's attorney did not want his client linked with Powell, we agree here with the district court that the door had been opened. Weber, not the Government, portrayed political associations, which he sufficiently indicated he did not have, as a unique requirement for accomplishing that with which Weber is charged.
135
For the court to admit relevant evidence in rebuttal on the subject was well within its discretion. See United States v. Eliano, 522 F.2d 201 (2d Cir. 1975); United States v. Jones, 438 F.2d 461 (7th Cir. 1971). C. Wright and K. Graham, Federal Practice & Procedure § 5241. The purpose of Rule 404(b) is to prevent "the use of alleged particular acts ranging over the entire period of the defendant's life (making) it impossible for him to be prepared to refute the charges, any or all of which may be mere fabrications." 2 J. Weinstein, Evidence P 405(04), at 405-39, Quoting Wigmore, Evidence § 194. The defendant focused the proof on this issue and cannot complain of surprise if evidence of his political associations was introduced.
VIII.
Henry Weber's Grand Jury Testimony
136
Franklin Weber also objects to the admission of his brother Henry's grand jury testimony at trial. Henry Weber testified on direct examination that he went to Vaduz, Liechtenstein, to negotiate two letters of credit given to him by the defendant. During the course of the direct examination, the Government attempted to introduce Henry Weber's inconsistent grand jury testimony that he had never gone to Liechtenstein, testimony given two weeks after his return from that country at the first of his two appearances before the grand jury. The court would not admit the testimony on direct examination, however, on the basis that the trial jury might unfairly infer that the defendant had somehow been responsible for his brother's falsehoods. When cross-examined by the defendant, Henry explained that because he was by coincidence going to Europe, he negotiated the letters of credit as a favor to his brother. Henry also testified that the defendant had told him the letters "covered sale commissions for oil or Arabian interest or something." The trial court then permitted the Government to introduce the grand jury testimony on redirect examination, and the defendant argues that the evidence still created the prejudical impression that Franklin Weber forced his brother to testify falsely.
137
Weber's argument that the admission of this evidence was a prejudicial linking of the brothers Weber, however, shifts the focus from the basis on which the evidence was properly admitted. As the district court pointed out there need be no connection between Franklin Weber and the giving of the false testimony to the grand jury for that testimony to be admissible.
138
The trial court properly admitted the statement as nonhearsay, Fed.R.Evid. 801(c); See Anderson v. United States, 417 U.S. 211, 219-21, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), to rebut the theory of the defense raised by the defendant during cross-examination. During cross-examination, the defendant did not attempt to rebut the Government's showing on direct examination that Henry Weber negotiated the letters of credit. The defendant instead attempted to impose upon the transactions the appearance of innocence. Once the defendant, again opening a door, attempted to create this impression, the testimony became significant as rebuttal merely because it was given, and not for its truth.39 The grand jury testimony, viewed with other admissible evidence showing that it was false, tended to establish that Henry Weber was aware that he was involved in improper transactions. See id. at 220.
139
In his reply brief, Weber argues that the Government has resorted to mere rules of impeachment to justify the introduction of the grand jury testimony. It is true that as a secondary justification the Government, citing Fed.R.Evid. 607, argues that it could properly impeach its own witness, although Weber does not argue otherwise.40 Although the impeachment aspect is one which enters the present picture, this aspect appears neither to be the prime thrust of the Government's position nor the basis on which the trial court admitted the evidence. As the trial judge pointed out when the impeaching testimony was being discussed, the cross-examination by Franklin Weber was designed expressly to bring out that this was a routine transaction that the witness was conducting for his brother, nothing was wrong with it and there was no reason to suspect it. The judge then pointed out:
140
You didn't have to do that. I had earlier ruled that this (impeaching testimony) would not be admissible. Having opened it up, I think the Government is now entitled to show that two weeks after he returned from Liechtenstein and I hadn't realized that it was that soon that he appeared before the Grand Jury this witness said he had never been to Liechtenstein.
141
We agree with the district judge that the evidence was properly admissible through the open door.
IX.
Denial of Effective Assistance of Counsel
142
A second aspect of the Swiss letters and Henry Weber's various connections therewith is the basis for a claim that Franklin Weber was denied effective assistance of counsel. The gist of the claim is that evidence pertaining to the Swiss letters in addition to that discussed in Part VIII of this opinion not only further linked Franklin Weber with his brother's first grand jury testimony but also constituted such a challenge to the integrity of Franklin Weber's trial lawyer as to deny the defendant effective assistance of counsel.
143
Specifically, the proof to which the objection is directed is the testimony, presented during the Government's rebuttal, of Assistant United States Attorney Michael O'Brien, who had conducted the preliminary grand jury investigation. The testimony described the following sequence of events: About a week after Henry Weber testified truthfully before the grand jury on December 3, 1975, his second appearance, that he carried the letters of credit to Liechtenstein, Franklin Weber's attorney had called Government counsel to report his client's possession of other letters of credit. During closing argument, the prosecutor suggested, "Isn't it interesting that after Henry Weber has all this recollection, then everybody is calling up and telling the Government about it, after the cat is out of the bag." The defendant argues that this statement implied that defense counsel engaged in wrongdoing and therefore denied the defendant assistance of counsel. This argument is completely without merit. The cases cited by the defendant, United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir. 1977), and Zebouni v. United States, 226 F.2d 826 (5th Cir. 1955), concerned continuous derision of the defense attorney by the trial judge and are not in point. Furthermore, we have difficulty seeing how this testimony and final argument disparaged defense counsel. The Government's questioning and argument were obviously for the purpose of rebutting the defendant's exculpatory evidence that Franklin Weber had not learned of the grand jury investigation until "very recently," and that he had been suspicious of the purpose behind the letters of credit, and that he therefore directed his attorney to notify the United States Attorney that he possessed more letters of credit.
144
We find no error in the admission of the rebuttal evidence. It was for the jury to draw such inferences as the evidence properly supported on the issues to be determined by the jury. The admission of this evidence properly bearing on what amounted to an assertion of a defense does not by any stretch of the imagination so impugn the defendant's attorney as to make his assistance ineffective to the prejudice of his client. We find no suggestion in the record that the attorney had the information with respect to the letters any sooner than he provided the information to the Government.
X.
Judge's Comment during Weber's Testimony
145
Franklin Weber finally argues that a comment by the trial judge during his testimony constitutes reversible error. The defendant testified, "I can swear that I did not see Mr. Benton give him anything . . . ." The trial judge then said in the presence of the jury, "that is what you are doing in everything you say. You understand that." Thereafter the matter was brought to the attention of the judge by way of a motion for a mistrial in which it was claimed that Weber's credibility was seriously depreciated in the eyes of the jury. The court immediately stated that the remark was not intended in any such way and offered to make that clear to the jury.
146
The judge did fully explain to the jury that in reflecting upon the matter he thought he should not have made the statement and that he in no way intended to reflect or comment on Weber's testimony or indicate any attitude whatsoever about the testimony. The judge also in final instructions made it clear that any comment by the court was not intended to invade the jury's province to decide the facts.
147
Weber, while not challenging the completeness of the court's curative instruction, argues that it did nothing to heal an incurable situation, stating that "A placebo cannot cure a terminal condition." In candor, we regard this hyperbolic characterization as a desperate bit of straw grabbing. In the first place we would have had difficulty even absent the curative instruction in reading this remark as any indication that the judge was expressing disbelief in the defendant's testimony. The judge, however, made it abundantly clear, if there had been any doubt, by his curative instruction that there was no reflection on the witness's credibility. In any event, this was an isolated incident in a long and complex trial. Weber testified for two full days during which the jury had ample opportunity to formulate its opinion of his credibility without regard to what was at most an oblique passing remark by the judge. Courts generally, and properly, decline to reverse in comparable situations. See, e. g., United States v. Cardall, 550 F.2d 604, 606 (10th Cir. 1976), Cert. denied, 434 U.S. 841, 98 S.Ct. 137, 54 L.Ed.2d 105 (1978); Gordon v. United States, 438 F.2d 858, 862-63 (5th Cir.), Cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971); United States v. Allen, 431 F.2d 712, 712-13 (9th Cir. 1970); United States v. Wilkins, 422 F.Supp. 1371 (E.D.Pa.1976), Aff'd sub nom. Appeal of Smith, 547 F.2d 1164 (3d Cir. 1976), 547 F.2d 1166 (3d Cir. 1976), 559 F.2d 1210 (3d Cir. 1977).
148
As the Supreme Court stated in United States v. Glasser, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680 (1942):
149
(An) examination of the record as a whole leads to the conclusion that the substantial rights of the petitioners were not affected. The trial was long and the incidents relied on by petitioners few. We must guard against the magnification on appeal of instances which were of little importance in their setting.
XI.
Sufficiency of Evidence as to Edwin Bull
150
The defendant Edwin Bull argues that the evidence against him was insufficient to sustain a conviction for conspiracy because of an absence of evidence showing that he had knowledge of the illegal purposes of the conspiracy. He argues that the statements of co-conspirators connecting him to the conspiracy were improperly admitted against him, and that if these inadmissible statements had been excluded, his conviction could not stand.
151
Bull's theory of defense was that he was merely a "friendly and accommodating" businessman who earned a finder's fee and a subcontract by introducing the Ingrams to the contract opportunities available at the Sanitary District. Especially damaging to this defense, however, was testimony admitted at trial of conversations between Bull's alleged co-conspirators concerning Bull's role in the conspiracy. Benton testified, for example, that prior to receiving the contract, Ingram was having trouble generating sufficient cash to meet the demands of Sanitary District officials. When Weber learned of this problem, he instructed Benton to write a check for $25,000 (the amount then demanded) payable to "Mr. Bull's company, Bull Towing Company, and that he and Mr. Bull would handle this check and convert it into cash and take care of the staff of the Sanitary District." Bull argues that without this statement the evidence merely shows that he deposited a check from Ingram for $25,000 in the No. 3 Bull Towing account and drew a countercheck for the same amount and received cash. Bull also declared this sum on his corporate and personal income tax returns and paid the necessary taxes. According to Bull's brief, "(t)here is not a scintilla of evidence that any of these monies reached anyone else." We hold that the co-conspirators' statements connecting Bull to the conspiracy were admissible under Fed.R.Evid. 801(d)(2)(E) and that the evidence against Bull was adequate to sustain the conviction.
152
Rule 801(d)(2)(E) provides that statements of a co-conspirator made during the course of and in furtherance of a conspiracy are not hearsay. In United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), we held that the trial court alone should decide, as a question of competence under Rule 104(a), the preliminary question of whether the proponent has submitted sufficient proof that there was a conspiracy before admitting a co-conspirator's statement under Rule 801(d)(2) (E). For the statement to be admissible, we held that this preliminary showing must satisfy the preponderance of the evidence standard, and that the trial court's determination of admissibility is final as to admissibility.
153
The proceedings below, however, took place prior to our decision in Santiago, at a time when there were ambiguities in the law about who was to decide co-conspirator preliminary questions and by what standards. See generally, 1 J. Weinstein, Evidence P 104(05). In Santiago we noted that in this circuit the former standard for determining the admissibility of co-conspirators' statements committed the question to both judge and jury. The trial court would admit the statement if the proponent made a prima facie showing, on the basis of evidence other than the statement, that there had been a conspiracy. The jury, however, was instructed not to consider the statement against another defendant unless they found, beyond a reasonable doubt, that the evidence other than the statement showed that a conspiracy existed and that the other defendant was a member of the conspiracy. See also United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969), Cert. denied, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260 (1970); United States v. Santos, 385 F.2d 43 (7th Cir. 1967), Cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968).
154
The trial court in this case proceeded substantially according to the prior standard, described in Santiago.41 Bull, however, relying on Santiago language, which, of course, was not available to the trial judge here, seizes upon a part of the court's instructions given during the course of the trial in connection with the admission of testimony of statements of alleged co-conspirators. It is true that the judge did say that the jury could consider such statements on the question of whether a conspiracy existed. Bull cites us to criticism in Santiago of "the view that the existence of a conspiracy could be proved by the very hearsay statement for which admission is sought." 582 F.2d at 1133 n. 11. That was done here, he argues, and constituted "bootstrapping" proof which had been condemned by earlier cases.
155
This argument however, taking language of the instructions out of context, ignores the clear and explicit admonitions of the court during the course of the trial that as to any particular charged co-conspirator it was essential that he be proved a participant in the conspiracy by independent evidence before statements of others could be considered on the question of his liability.
156
Thus, on the first occasion during the trial that the subject was addressed, which was early in the trial, the judge instructed as follows:
157
There are two fundamental questions that you have to decide in regard to the conspiracy count of the indictment. The first of those questions is what is the conspiracy that is alleged by the indictment to have existed? Was there such a conspiracy? On that question you consider all of the evidence that I allow in and you make up your minds at the conclusion of the case as to whether a conspiracy, as alleged in the indictment, has been shown to exist as between somebody.
158
The second question is and it is eight separate questions here was this particular defendant shown to have been a member of that conspiracy. On that second question which you must answer in regard to each defendant, only those acts of that particular defendant should be considered to answer that question. You can't decide that Defendant B was a member of the conspiracy, if you find there has been a conspiracy, on the basis of something Defendant A said. It has to be on the basis of what you find Defendant B said and did.
159
Those are the two questions, and let's just assume, generally speaking, that a jury in a hypothetical case finds Defendant B to have been a member of the conspiracy. All right, then and only then are the statements and actions of his alleged co-conspirators admissible against him. Provided they are acts and statements which the jury finds were committed in furtherance of the objectives of the conspiracy.
160
So, to recapitulate, question one, was there a conspiracy? Question two, was Defendant B a member of that conspiracy? Question three, as to any acts or statements of an alleged co-conspirator in considering whether you are going to consider that against Defendant B, was that act or statement committed in furtherance of the common conspiracy?
161
Only if you answer all three of those questions in the affirmative can you consider this act or statement of, say, Defendant A against Defendant B.
162
On analysis, all that the district court was really saying as to the establishment of a conspiracy was as follows: If there was testimony as to a conversation between B and C which reflected an agreement to violate the law, this testimony would be admissible as to B and C and would, if believed by the jury, tend to establish a conspiracy as to B and C. If during the course of the conversation either B or C had spoken of A's participation this would not have been proof of A's participation unless and until it had already been established by independent evidence, other than the statements of co-conspirators, that A was a participant.
163
While the quoted portion of the instructions above was perhaps repetitive, and we note its substance as to the necessity for independent evidence as to any particular defendant becoming a conspiracy member was repeated thereafter, it is evident that the trial judge was attempting to make absolutely clear to the jury by repetitive emphasis that the statements of others could not be considered against a defendant for finding him to be a participant in a conspiracy unless his membership had been otherwise independently established. From the record we regard this attempt by the judge to have been successful.
164
In sum, we fail to see any prejudice to Bull. The instructions on conspiracy as in the case of all instructions must be considered in the whole complex of instructions, and it was made perfectly clear to the jury by those instructions that even though a conspiracy had been established by all of the evidence which the court had admitted, the jury could not find Bull guilty as a conspirator unless his membership in the conspiracy had been established by independent evidence other than the statements of co-conspirators.
165
Further, and in any event on the record in this case, we are firmly convinced that apart from any statements there was overwhelming independent evidence sufficient to show the existence of a conspiracy. If there had been any error in the instruction it would have been harmless. Fed.R.Evid. 103(a); Williams v. United States, 119 U.S.App.D.C. 190, 338 F.2d 530 (1964).
166
Bull disagrees that there was independent evidence linking him to the conspiracy and asserts that the co-conspirators' statements were therefore not admissible against him. As we have said the trial court instructed the jury that it must find beyond a reasonable doubt and on the basis of independent evidence that Bull was a member of the conspiracy before it could consider co-conspirator statements against Bull.
167
In reviewing the jury's determination of the sufficiency of the independent evidence linking Bull to the conspiracy, we do not weigh the evidence or determine the credibility of witnesses. We will affirm the jury's finding if there is substantial evidence, viewed in the light most favorable to the government, to support it, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Buschman, 527 F.2d 1082, 1085 (7th Cir. 1976), and we therefore turn to an examination of that evidence.
168
Robert Howson, an Ingram Contractors, Inc. Vice President, testified that Bull came to New Orleans in March 1971 and told him that for a southern contractor like Ingram to get the Sanitary District contract, a political contribution would be necessary. Benton testified that Bull brought Benton and Weber together for a meeting later that month, and that the day after this meeting, Bull told Benton that "if (Benton) agreed with the discussion with Mr. Weber, he felt Ingram would get this contract, there would be no problem, and that he expected to receive $100,000 and Mr. Weber's group $200,000." There was evidence that Bull deposited a $25,000 check from Ingram, and withdrew the same amount in cash. Although Bull declared the amount on his taxes, there was also testimony that Bull insisted to Benton that his finder's fee from Ingram include reimbursement for the taxes he paid on the check drawn to his company. From this testimony, the jury certainly could infer that Bull did not keep the $25,000, and from Bull's insistence that Ingram be responsible for the taxes, the jury could infer that Bull's laundering of the check was a favor for Ingram, to whom Bull had earlier suggested the need for political contributions in exchange for a contract. The testimony also showed that Bull's involvement in the bribery scheme continued. When insisting on an increase in his subcontract rates, Bull was reminded by Benton in January 1975 "that this contract extension was a similar situation with the original contract and that Ingram did not retain all of the increase that would be reflected between the various unit prices in the two agreements."
169
We have already found that the evidence that a conspiracy existed was overwhelming. In United States v. Robinson, 470 F.2d 121 (7th Cir. 1972), we noted that once the existence of a common scheme is established, very little may be required to show beyond a reasonable doubt that a particular defendant became a party. See also United States v. Harris, 542 F.2d 1283 (7th Cir. 1976), Cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). From the evidence of Bull's independent acts and statements, the jury was entitled to find beyond a reasonable doubt that Bull was a member of this conspiracy, and the jury therefore was entitled to use the statements of other conspirators against him.42 The discriminating conclusions of guilt and innocence returned by the jury in this complex case demonstrate that the jury studied the evidence with great care. See United States v. Kaufman, 429 F.2d 240, 244 (2d Cir.), Cert. denied, 400 U.S. 925, 91 S.Ct. 185, 27 L.Ed.2d 184 (1970). We decline to disturb their verdict, holding that the independent evidence of Bull's knowing participation in the conspiracy was sufficient to support the jury's use of the co-conspirators' statements against him, and that with such evidence there is no merit in his claim of insufficiency.
XII.
Bull's Claim of Prosecutorial Misconduct
170
Edwin Bull also argues that during its closing argument, the Government raised for the first time an unfounded inference that he bribed someone in the Illinois Commerce Commission to procure a Certificate of Public Necessity and Convenience for Ingram. Specifically, during closing arguments the Government attorney made the following statement:
171
On July 27, 1971, Frank Weber and Ed Bull went through another series of transactions to generate cash very similar to what they did in April, to generate the $25,000. This time the amount involved was $20,000.
172
Frank Weber made out a Southwest Expressways' check for $20,000, payable to Bull Towing. Bull took it to the bank, deposited it into the Bull Towing Company account, and wrote a check in that amount made payable to himself and received $20,000 in cash.
173
This occurred on July 27, ladies and gentlemen, the day before Ingram received his Commerce Commission Certificate of Registration.
174
During rebuttal argument, the Government added:
175
Would you put up Government Exhibit 1-12(A).
176
That is a check from Southwest Expressways to No. 3 Bull Towing dated July 27, 1971, the same day as Government Exhibit 1-12(D) was issued. It is again a check to Ed Bull, and as the evidence indicates, Mr. Bull left the bank with $20,000. Benton had nothing to do with this transaction, but as you have seen from the notes that Mr. Weber wrote, there was apparently some sort of problem at the ICC, Illinois Commerce Commission.
177
It just so happens that the following day, Ingram is granted their Certificate of Convenience and Necessity by the Illinois Commerce Commission. Well, the bankers and those documents are not ghosts, and they begin to add up.
178
Bull argues that this suggestion constituted an unconstitutional amendment of the indictment and that it prejudiced unfairly the preparation of his defense. The defendant concedes that the evidence shows he converted a $20,000 check from Franklin Weber to cash on July 27, 1971, but argues that absolutely no evidence supports the implication in the Government argument that he bribed the Commerce Commission.
179
Although the prosecution, of course, must never refer to matters with no basis in the evidence, United States v. Morris, 568 F.2d 396 (5th Cir. 1978); United States v. Meeker, 558 F.2d 387 (7th Cir. 1977), the prosecutor may in argument suggest reasonable inferences from the evidence already admitted. United States v. Jones, 157 U.S.App.D.C. 158, 482 F.2d 747 (1973). Because of the secret nature of the crime, conspiracy is especially subject to proof by circumstantial evidence. We decline to require the prosecutor to suggest to the jury only conclusions supported by direct evidence.
180
During the trial there was evidence that the Certificate of Public Necessity and Convenience was granted to Ingram the day after Bull converted the check to cash. Government Exhibit 11-1, a memo made by Weber, also admitted in evidence, indicated that Weber had made payments to the Commerce Commission on behalf of Ingram. On direct examination, Weber testified that he gave Bull the $20,000 check as a payment for a dredge, and during cross-examination the Government confronted Weber with the connection between the memo, the laundered check, and the issuance of the Certificate. Bull did not object to this line of questioning.
181
These matters admitted in evidence were available to Bull in time to prepare his rebuttal. The conversion of the $20,000 check to cash was one of the overt acts charged in the conspiracy indictment. The documents connected with this line of proof were turned over to Bull's attorney ten months prior to the trial. Bull's argument that this closing statement unfairly prejudiced his defense must therefore fail.
182
Our examination of the Government's argument and the evidence supporting it also leads us to conclude that the inference created was that Weber, not Bull, bribed the Commerce Commission. The Government therefore did not stray beyond the confines of the scheme alleged in the indictment, which describes Bull in paragraphs 21 and 27 as having been a knowing conduit for the bribery funds. Furthermore, paragraphs 21 and 27 of the indictment describe in broad language the objects of the bribery scheme as "public officers and employees," so that proof of bribes to Illinois Commerce Commission officials was entirely within the scope of the scheme alleged. Bull's argument that any proof involving officials from agencies other than the Sanitary District amended the indictment is therefore without merit. See Stirone v. United States, 361 U.S. 212, 218-19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
XIII.
183
Claimed Error of Instructions on Travel Act
184
The defendant Frederick Ingram challenges the portion of the court's instructions pertaining to the counts charging violations of 18 U.S.C. § 1952 (the "Travel Act") insofar as the jury was told that under the Travel Act a defendant need not know or reasonably foresee that the facilities of interstate commerce will be used or that someone will travel in interstate commerce in order to be guilty under the Travel Act. The authority in this circuit is that neither the language nor the purpose of the Travel Act compels this showing of knowledge on the part of each co-conspirator. United States v. Peskin, 527 F.2d 71 (7th Cir. 1975), Cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). See United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The defendant has offered no persuasive reason for a different rule. The use of interstate facilities merely provides the basis for federal jurisdiction. United States v. Peskin, 527 F.2d at 78; United States v. Bursten, 560 F.2d 779, 783-84 (7th Cir. 1977).
185
What we have said herein no way indicates that there is not a necessity for interstate travel or the use of an interstate facility. The court did properly instruct the jury that the Government had to prove:
186
(1) that someone traveled in interstate commerce, or used an interstate facility in furtherance of the bribery scheme; (2) that a person who caused the travel or use did so with intent to facilitate the bribery scheme; (3) that a member of the scheme thereafter performed or caused to be performed acts to promote the carrying on of the bribery scheme; and (4) that the particular defendant under consideration "was a knowing and willful participant in the bribery scheme at the time of the interstate travel or use of the interstate facility and at the time the subsequent act or acts took place."
187
The fact that Frederick Ingram did not travel interstate or use interstate facilities or that he may not have known that others in the bribery scheme would do so is immaterial.
188
The judgments accordingly are affirmed.
189
AFFIRMED.
1
We use the spelling of Ingram's first name that appears in the indictment (Frederick) rather than the spelling that appears in his brief (Frederic)
2
The indictment also charged appellants McPartlin, Weber, and Janicki with filing false income tax returns in violation of 26 U.S.C. § 7206(1). The tax counts against McPartlin and Weber were dismissed before trial. Janicki was convicted of tax violations, but raises no issue on appeal with respect thereto
3
In 1975 the name was changed to "Board of Commissioners."
4
Since Benton did not meet Janicki until a month later, the caller was probably Weber
5
Benton testified that Bull had informed him that he needed money to pay income taxes on the money that he had laundered through Bull Towing Company. Part of the $76,000 was for this purpose, but the government concedes that part of the $76,000 finder's fee was legitimate
6
Benton testified that he informed Frederick Ingram of Weber's first proposal that Ingram Corporation make a political contribution immediately after Weber made it in March, 1971, and that Ingram authorized the payments then
7
It is not clear whether the $95,000 due in September on the first agreement was ever paid. Nor is it clear why Benton paid Janicki and Weber $775,000 on January 26, 1973, rather than the $750,000 agreed to
8
It is not clear how Weber expected his brother to cash the sixth letter of credit in November, 1975; it did not mature until December, 1975. Nevertheless, it is undisputed that Henry Weber did go to Vaduz, Liechtenstein carrying the two letters of credit with the intent to negotiate them
9
Benton admitted siphoning off for his own use some of the funds that the Ingrams intended be paid to the Illinois defendants. See Part IV, Infra
10
In Brady, which is famous for a holding irrelevant here (Viz., that the prosecution's suppression of evidence requested by the defense and material to punishment violated the due process clause of the Fourteenth Amendment), the Court also held that no federal right was violated by limiting a new trial to the issue of punishment where the suppressed evidence was inadmissible as to guilt, even though there might have been some spillover favorable to the defendant on the issue of guilt. At the first trial, in which a jury had convicted Brady of first degree murder and fixed penalty as death, the prosecution had failed to disclose a confession in which petitioner's accomplice admitted having actually strangled the victim. Concerning the petitioner's right to a new trial on both guilt and punishment, the Court said:
A sporting theory of justice might assume that if the suppressed confession had been used at the first trial, the judge's ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury . . . . But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance through the use of a bifurcated trial . . . denies him due process or violates the Equal Protection Clause of the Fourteenth Amendment.
373 U.S. at 90-91, 83 S.Ct. at 1198 (footnote omitted).
11
Although the Commentary to § 2.3(b) of the ABA Minimum Standards for Criminal Justice: Standards Relating to Joinder and Severance (Approved Draft 1968), contains a sentence which, standing alone, indicates that "defenses . . . antagonistic to each other" constitute a sufficient basis for granting a severance, the Commentary elsewhere states that this is only one of several factors to be considered and makes it clear that the appropriateness of severance depends upon the degree and kind of antagonism. See also the federal cases cited in the ALR Annotation referred to in the Commentary, 70 A.L.R. at 1184-1185; and see Annot., 82 A.L.R.3d 245, 250-251, 257-259 (1978). As the cases cited in the text of this opinion illustrate, the federal courts have held that an attempt by one defendant to place the guilt upon another does not require severance. See also 82 A.L.R.3d at 260-261
12
McPartlin's attorney advised McPartlin to meet with the investigator because it was in the interest of all the defendants to "poke holes" in the Benton diaries
13
In the alternative, the court ruled that McPartlin's statements were inadmissible hearsay not within the exception provided by Rule 804(b)(3), Fed.R.Evid. (declarations against penal interest). Since we agree that McPartlin's statements are protected by his attorney-client privilege, and in any event their exclusion was not prejudicial, we do not reach the alternative ground for exclusion
14
The trial judge remarked at one point that the evidence "would be of great assistance to Ingram" if admissible. With respect, we see no basis for that conclusion and believe that, if the judge had been given the opportunity we have had to lay the facts proved in other ways beside the proffered evidence and carefully compare the two, he would have reached the same conclusion we do
15
In Hunydee v. United States, supra, the attorney for Hunydee's co-defendant believed that the government would not prosecute the co-defendant if Hunydee pleaded guilty, and therefore their interests conflicted. Nevertheless, the Ninth Circuit held that statements made by Hunydee during a joint conference held for the purpose of discussing his willingness to plead guilty, a matter of common interest, which affected both attorneys' subsequent representation of their respective clients, were privileged. Similarly, in Schmitt, supra, the common interest of the co-defendants related to the exclusion of a specific item of evidence. See, Note, Supra, 63 Yale L.J. at 1035-1036
16
Smale v. United States, 3 F.2d 101, 102 (7th Cir. 1924), relied on by Ingram, in which one defendant volunteered statements to another defendant and the latter's attorney and the requisite joint interest and confidentiality were both lacking, does not establish the compatible defense requirement for which Ingram argues
17
In United States v. McClure, 546 F.2d 670 (5th Cir. 1977), relied upon by Ingram, the court held it to have been reversible error to exclude as irrelevant "evidence of a systematic campaign of threats and intimidation" by an informer against persons other than the defendant, offered to corroborate the defendant's testimony that he had been threatened and coerced by the informer to commit the crime charged. The case is not authority for the proposition that evidence of threats of physical violence, made by some unnamed person, directed at a person other than the defendant, is relevant in a case in which the defendant does not contend that his criminal activity was motivated by threats of physical violence or that he even had knowledge of such threats at the time of his criminal activity
18
It is to be noted that this defense is inapplicable to the counts under which Ingram was found guilty of participation in payments made prior to February, 1972. (Counts 3, 4, and 6.) As to these counts Ingram contended he did not know of the payments. The conspiracy count (Count 1) involved payments made before and after that date, but the verdicts on the three substantive counts tell us that the jury disbelieved Ingram's denial of knowledge of the earlier payments, so the extortion defense would not suffice under the conspiracy count
19
Indeed Ingram seems to have admitted as much. In his brief defendant Ingram states: "Alternatively, the jury might confusingly (Sic ) have reasoned that threatened liability under the liquidated damages clause was an 'economic loss'. . . ." Brief for Defendant Ingram at 37
20
Ingram made the following written objection to the instruction:
Court's Instruction No. 2: The Ingram defendants have tendered several alternative charges dealing with the subject matter as Court's Instruction No. 2, each of which we submit correctly states the law with respect to the effect of economic coercion on the defendant's alleged intent to bribe. In support of the tendered charges, we referred to our memorandum on the "extortion defense" submitted to the Court in July 1977, which we incorporate by reference here. The instruction given by the Court treats the issue not as one of economic coercion bearing on intent, but as one of duress, contrary to the analysis in United States v. Barash, 365 F.2d 395 (2d Cir. 1966), and contrary to the pattern instruction in Devitt & Blackmar § 34.10. Accordingly, we object to the Court's charge in this respect and we object to the omission of any of the proposed instructions on this issue tendered by the Ingram defendants, or some modified version of those proposed instructions.
21
Ingram attempts to bolster this argument by urging that decisions under the Hobbs Act have rejected any distinction between threats of economic loss and gain in extortion prosecutions. See, e. g., United States v. Hathaway, 534 F.2d 386 (1st Cir.), Cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). We do not see the relevance of such authority, however, since there is no reason that conduct giving rise to criminal liability for extortion should necessarily provide a criminal defense for the reciprocal party. Indeed it does not seem illogical to suggest that it may be reasonable to prosecute both the official who conditions discretionary benefits on bribes and the person who seeks to obtain such benefits. See United States v. Hall, 536 F.2d 313, 321 (10th Cir. 1976), Cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1977) ("bribery and extortion are not to be considered mutually exclusive nor does the fact that the alleged victims of the extortion were also bribers nullify anything."); United States v. Gill, 490 F.2d 233 (7th Cir. 1973), Cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974)
22
See note 20 Supra
23
United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), Cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). See p. 25 Supra
24
As the court in Barash noted:
Although the instruction that only a threat of death or serious bodily injury would make out the defense of duress appears correct enough . . . that was only part of the story since Barash had also requested instructions as to the bearing of threats of economic harm on the intent required for conviction. . . . We think that if a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this, not as a complete defense like duress but as bearing on the specific intent required for the commission of bribery.
365 F.2d at 401-02.
25
The defendant clearly makes these admissions in his brief when he argues that the entitlement distinction was erroneous:
This second element (of the instructions, that the extortion defense was not available if the defendant was seeking a benefit to which he was not entitled,) was tantamount to a judicial instruction to reject the extortion defense in light of the record that had already been made. Bronson Ingram had testified (as quoted at pp. 16-17, Supra ) that on February 21, 1972, during the meeting between the Ingram brothers and Benton, Benton had said, "(W)e don't really have a legal position to get the rest of our money" (Tr. 4075). Indeed, it was precisely because there was no legal recourse that, according to both Ingrams, they saw no option other than to capitulate to the demands.
. . . .f o
On any fair reading of the record, Mr. Ingram was in the position of ordinary applicants for zoning variances or for discretionary governmental action. He honestly and with substantial basis believed that it was right and proper for the MSD to exercise its discretion to purchase the pipeline and to refrain from punitive use of the liquidated damages clause. Whether he also believed that Ingram Corporation had a legal right under the existing contracts to obtain this result was completely irrelevant to the question of his intent to commit bribery.
Brief for Defendant Ingram at 39-41 (emphasis supplied). Ingram's admission that he was in the same position as "ordinary applicants for zoning variances" is particularly damaging in that it was in precisely that context in Peskin that we explicitly held the extortion defense to be unavailable as a matter of law. 527 F.2d at 84. See also the cited quotation on p. 25 Supra.
26
Ingram also objects to the trial court's refusal to give a "theory of defense" instruction describing Ingram's view of the extortion. This is a somewhat surprising argument since the trial court's instruction gave more factual information as to the defendant's theory, albeit more concisely, than the defendant's proposed instructions. Ingram's factual theory of his defense is detailed in the following excerpts from the defendant's proposed instructions:
If, on the other hand, the Ingram defendants had formed no purpose of offering any money or thing of value to any personnel of the Metropolitan Sanitary District, and acted only because of demands or threats communicated by Benton, and believed that the Metropolitan Sanitary District intended to carry out the threats not to pay for the pipeline and destroy the company on the barging operations unless their demands were satisfied, or if you have a reasonable doubt on this issue, then the essential element of intent is not present and you will find the defendants Frederic B. Ingram and E. Bronson Ingram not guilty of all charges.
It is the position of the defendants Frederic B. Ingram and E. Bronson Ingram that they had no purpose of improperly offering or promising any money or thing of value to any official of the Metropolitan Sanitary District in connection with the sludge contract, and that they did not devise or intend to devise a scheme or artifice to defraud either the Metropolitan Sanitary District, its citizens, its officers and employees, or the Burlington Northern Railroad and other competitors. Indeed, it is the position of the defendants Frederic B. Ingram and E. Bronson Ingram that they acted only because of demands or threats communicated to them by William J. Benton and because they believed that those threats would be carried out unless the demands were satisfied.
If you find that the defendants Frederic B. Ingram and E. Bronson Ingram did not act voluntarily, or had formed no purpose of offering any money or thing of value to the employees or officers of the Metropolitan Sanitary District, and acted only because of demands or threats communicated by William J. Benton, and that they believed that those threats would be carried out unless the demands for payment were satisfied, then the essential element of intent is not present and you must find the defendants Frederic B. Ingram and E. Bronson Ingram not guilty of the charges against them.
In contrast to these generalized and repetitive instructions, the trial court instructions, set out on pages 23-25 Supra, concisely explained the defendant's theory that the alleged extortion scheme revolved around threats not to purchase the pipeline, as well as setting out defendant's additional factual theory that the scheme involved threats to assess liquidated damages in an unreasonable manner. Thus, the defendant Ingram's claim that the trial court erred in rejecting a "theory of defense" instruction is without merit.
27
The government offered to prove that Ingram had personal control of a cash box containing unreported funds from scrap sales which were distributed to Louisiana politicians. Additionally the government offered to prove that a joint-venture in which Ingram Corp. was a participant had paid a real-estate commission to a Louisiana state representative who gave part of that payment to another state representative and kicked back another part of it to Frederick Ingram personally. The government also offered to prove that Ingram Corp. made kickback payments to an Amoco employee who was potentially able to provide inside information and influence the level of payments by Amoco to Ingram. Finally, the government said it could prove that Ingram Corp. had made an interest-free, uncollateralized loan to an Indonesian military officer who was able to influence contracts for Ingram in Indonesia
28
Ingram's assertion that such a practice is "moral" in Brazil tempts us to examine the philosophical underpinnings of an ethical system that varies with geographical or cultural boundaries. Even if morality varies with one's own culture, can it be said that an individual from a cultural and moral tradition that condemns a practice can morally engage in that practice once he simply steps "across the river" into a culture with different norms? See B. Pascal, Pensees 151 (Editions Garnier Freres 1964) ("Plaisante justice qu'une riviere borne! Verite au de ca des Pyrenees; erreur au dela." "Curious justice that a river bounds! Truth on one side of the Pyrenees; error on the other.")
29
See also United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), Cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1978) (upholding admission of evidence of subsequent bribes to public officials)
30
United States v. Feinberg, 535 F.2d 1004, 1009 (7th Cir.), Cert. denied, 429 U.S. 929, 97 S.Ct. 337, 50 L.Ed.2d 300 (1976). Compare the majority opinion in United States v. Beechum, 582 F.2d 898, 910, 912-913, (5th Cir. 1978) (en banc) with the dissent in that case, Id. 918, 922-923 (Goldberg, Godbold, Simpson, Morgan, and Roney, JJ., dissenting)
31
See note 27 Supra
32
Defendant Janicki also apparently claims that the government did not ultimately turn over all exculpatory material relating to specific instances of embezzlement: "the Government may have secured information about particular instances of embezzlement about which the defendant was unaware. . . ." Brief of Defendant Janicki at 32. However, a denial of Due Process cannot be premised on the defendant's mere conjecture that there might have been favorable evidence which was undisclosed. The existence of the evidence must be established, and here the defendants offered nothing to rebut the government's assertion that it had turned over to the defendants all its information on the embezzlement
33
At trial the defendants made only generalized claims of prejudice without advancing any specific theories upon which a finding of prejudice might be based. Tr. at 230-31 (Janicki), 249-50 (McPartlin). Such specific theories were advanced for the first time in the briefs submitted to this court
34
The defendants have also attacked the contemporaneity of the entries, arguing that the records were inadmissible because entries were made relating to appointments before the appointment took place. This is an overly narrow construction of "at or near the time." Even though such entries were not made "at or near the time" of the meeting they were "at or near the time" the appointment was made. This seems to be sufficient contemporaneity to constitute a business record documenting the making of appointments
35
Rule 803(24) provides:
(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence.
36
McPartlin argues that evidence denying Weber's participation in the first bribe installment would have inured to his benefit since the original installment was alleged to have been delivered to McPartlin in Weber's presence. Thus, presumably, any cash deposited by Weber, if not from innocuous sources, would have been obtained from McPartlin. We do not think, however, that any benefit from such evidence would have been sufficient to have made its exclusion a denial of a fair trial to McPartlin. The fact that Weber may not have received a cash rake-off from this first installment in no way detracts from the credibility of testimony that McPartlin received the money; at most such evidence would have only contributed to a demonstration of McPartlin's penuriousness
37
Rule 801(d)(1)(B) provides that
(d) A statement is not hearsay if . . . (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive . . ..
38
Further support can also be found in this circuit's decision in United States v. Ware, 247 F.2d 698 (7th Cir. 1957), also cited by the Advisory Committee as a proper application of the untrustworthiness principle. In Ware this circuit held that records of drug purchases made by a drug agent were inadmissible in subsequent prosecutions, noting that "such utility as . . . (these records) possess relates Primarily to prosecution of suspected law breakers and only Incidentally to the systematic conduct of the police business." Id. at 700 (emphasis supplied). Likewise, the notations here must be seen as relating primarily to the avoidance of additional tax liability or prosecution as a result of an audit and only incidentally to the conduct of Weber's business
39
The Government's theory of the case was that Henry Weber did go to Liechtenstein to negotiate the letters of credit. Henry's negotiation of the letters of credit in Liechtenstein formed the basis of Count 32 of the indictment. Because the Government was not trying to prove the truth of the out-of-court statement, the defendant was not prejudiced by lack of cross-examination at the time of the grand jury testimony. Anderson v. United States, 417 U.S. at 220-21, 94 S.Ct. 2253
40
The Government also points out that pursuant to Rule 613(b), the witness was permitted on recross-examination to explain the impeaching grand jury testimony by stating that he had been unfamiliar with the geography of Liechtenstein and because of that he had not understood the question at the time of his first grand jury appearance
41
Although the record is not clear, we assume arguendo that the trial court, in letting in the statements, applied the lesser prima facie standard then used for determining the existence of a conspiracy for purposes of admission, rather than the stricter preponderance test prescribed in Santiago
42
Although our decision in Santiago commits this admissibility question to the court in the future, we nevertheless apply the then current standards to evaluate the procedures at trial. The defendant has not challenged the submission of the admissibility issue to the jury. Furthermore, we fail to see how this "added layer of fact-finding," although unnecessary, could prejudice the defendant. United States v. Santiago, 582 F.2d 1128, 1136 (7th Cir. 1978); United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)
As we observed in Santiago, there is some danger of confusing the jury with the instruction because the judge essentially is telling the jury not to consider the evidence unless it has already found the defendant guilty. See Carbo v. United States, 314 F.2d 718, 736, 84 S.Ct. 1625, 12 L.Ed.2d 498 (9th Cir. 1963), Cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964). We do not regard the instruction as prejudicial, however, because it at least cautioned the jury against the dangers of using this evidence for improper purposes. 1 J. Weinstein, Evidence P 104(05), at 104-45.
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254 P.3d 158 (2010)
2010 UT 50
BEAVER COUNTY, Box Elder County, Cache County, Davis County, Iron County, Juab County, Millard County, Morgan County, Salt Lake County, Summit County, Tooele County, Utah County, Wasatch County, Washington County, and Weber County, Petitioners,
v.
UTAH STATE TAX COMMISSION, and T-Mobile USA, Inc., Respondents.
Nos. 20051010, 20060033.
Supreme Court of Utah.
August 13, 2010.
David W. Scofield, Thomas W. Peters, Salt Lake City, for petitioners.
Mark L. Shurtleff, Att'y Gen., Laron J. Lind, Asst. Att'y Gen., Salt Lake City, for respondent Utah State Tax Commission.
Mark K. Buchi, Steven P. Young, Salt Lake City, for respondent T-Mobile USA, Inc.
PARRISH, Justice:
INTRODUCTION
¶ 1 In this appeal, several Utah counties[1] (the "Counties") have petitioned for review of the Utah State Tax Commission's assessment of T-Mobile USA's ("T-Mobile") taxable property in Utah for the 2003 tax year. Concurrent with this appeal, T-Mobile sought de novo review of the Tax Commission's assessment in the district court, which acted as a "tax court," pursuant to Utah Code section 59-1-601, 602 (2008). The Counties' appeal to this court was stayed pending a final decision by the tax court.
¶ 2 The tax court issued a final decision on March 11, 2009. Because a final decision was reached, T-Mobile asserts that rule 15 of the Utah Rules of Appellate Procedure requires dismissal of this appeal or, in the alternative, that this appeal is moot under rule 37 of the Utah Rules of Appellate Procedure. We hold that rule 15 applies retroactively *159 to the Counties' appeal and requires dismissal. Because we hold that rule 15 applies, we do not reach the merits of the Counties' appeal.
BACKGROUND
¶ 3 On May 1, 2003, the Utah Tax Commission's Property Tax Division assessed the value of T-Mobile's taxable Utah property at $124,577,850. T-Mobile and the Counties petitioned the Tax Commission for a re-valuation of the property pursuant to Utah Code section 59-2-1007(1)(a) (2008). The Tax Commission held a formal administrative hearing and re-assessed T-Mobile's property at $117,850,000.
¶ 4 Subsequent to the issuance of the Tax Commission's order and new valuation, the Counties exercised their option to appeal the Tax Commission's decision directly to this court pursuant to Utah Code section 59-1-610.[2] T-Mobile concurrently exercised its option to petition for a de novo review of the Tax Commission's order in the district court, sitting as a tax court.[3] The Administrative Appeal was stayed pending a final order by the tax court, which it issued on March 11, 2009. The tax court re-assessed the value of T-Mobile's Utah property and entered a valuation of $74,750,000.
¶ 5 Upon the entry of the tax court's order containing the new value of T-Mobile's Utah property, the Counties, as well as the Tax Commission, appealed the tax court's decision to this court.[4] Specifically, they challenged the valuation methodology and standard of review employed by the tax court as well as the final property value. Additionally, the Counties argued that T-Mobile's goodwill should be included in the overall value of the taxable property. The proper valuation method and the inclusion of goodwill in the property value are issues that the Counties have raised in the Administrative Appeal as well as in the Tax Court Appeal.
¶ 6 T-Mobile argues that rule 15 of the Utah Rules of Appellate Procedure requires the dismissal of the Administrative Appeal upon the issuance of the final order by the tax court. In the alternative, they argue the Administrative Appeal is moot under rule 37 of the Utah Rules of Appellate Procedure.
¶ 7 The Counties challenge the application of rule 15 because it became effective after they initiated their Administrative Appeal. They assert that retroactive application would be inappropriate where their substantive rights to bring the Administrative Appeal would be affected. The Counties also argue that the Administrative Appeal is not moot because there remain justiciable issues about the true value of T-Mobile's taxable Utah property.
¶ 8 We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(e)(ii) (2008).
ANALYSIS
I. RULE 15 APPLIES RETROACTIVELY IN THIS CASE BECAUSE IT IS A PROCEDURAL RULE AND DOES NOT AFFECT SUBSTANTIVE RIGHTS
¶ 9 Rule 15 of the Utah Rules of Appellate Procedure became effective January 4, 2010, several months after the Counties filed their petition for review of the Tax Commission's order in this court. Therefore, if rule 15 is to have any affect on our decision in this appeal, we must first find that it applies retroactively.
¶ 10 In Utah, there is a "`long-standing rule . . . that a legislative enactment which alters the substantive law . . . will not be read to operate retrospectively unless the legislature has clearly expressed that intention.'" Evans & Sutherland Computer Corp. v. Utah State Tax Comm'n, 953 P.2d 435, 437 (Utah 1997) (second alteration in original) (quoting Madsen v. Borthick, 769 P.2d 245, *160 253 (Utah 1988)). However, the rule against retroactive application does not apply "`where a statute changes only procedural law by providing a different mode or form of procedure for enforcing substantive rights' without enlarging or eliminating vested rights."[5]Id. at 437-38 (quoting Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah 1995)). A procedural rule or statute that may be retroactively applied is one that is "`enacted subsequent to the initiation of a suit which do[es] not enlarge, eliminate, or destroy vested or contractual rights.'" Bd. of Equalization v. Utah State Tax Comm'n, 864 P.2d 882, 884 (Utah 1993) (quoting Pilcher v. Dep't of Soc. Servs., 663 P.2d 450, 455 (Utah 1983)). It is one that "controls the mode and form of procedure for enforcing the underlying substantive rights" and "merely affects the judicial machinery available for determining substantive rights." Evans & Sutherland, 953 P.2d at 438.
¶ 11 In Evans & Sutherland, we held that amended Utah Code section 59-1-601, which allows for a de novo review of Tax Commission decisions in the district court, was procedural and thus could be applied retroactively. Id. We reasoned that "section 59-1-601 control[led] the mode and form of procedure for enforcing the underlying substantive rights." Id. Although the appellees in Evans & Sutherland argued retroactive application would "expose [them] to substantial additional costs of litigation because a de novo proceeding means starting over," we held the parties did not have a vested right to avoid additional costs of litigation on review of an agency decision. Id. We came to a similar conclusion in Due South, Inc. v. Department of Alcoholic Beverage Control, where we held that an amendment to Utah Code section 32A-1-120, which changed the applicable standard of review, should apply retroactively. 2008 UT 71, ¶¶ 12-14, 197 P.3d 82. We reasoned that "[t]he standard of review is a matter of procedural, rather than substantive, law . . . [and] [p]rocedural statutes . . . which do not enlarge, eliminate, or destroy vested or contractual rights apply not only to future actions, but also to accrued and pending actions." Id. ¶ 14 (citation omitted) (internal quotation marks omitted).
¶ 12 Similarly, rule 15 controls the mode and form of procedure for enforcing the underlying substantive rights of the parties in this Administrative Appeal. Those rights are the proper valuation methods that should be used for assessing the value of taxable property in Utah. The Counties, as well as the Tax Commission, have asserted these rights in the tax court as well as before this court in the Tax Court Appeal. Thus, the dismissal of the Administrative Appeal will not enlarge, eliminate or destroy the Counties' vested rights. While the application of rule 15 may ultimately result in different standards of review of the Commission's decision in the tax court and in this court, that is a procedural matter and thus retroactive application of rule 15 is proper. We hold it should be applied in this case.
II. APPLICATION OF RULE 15 REQUIRES DISMISSAL OF THIS APPEAL
¶ 13 Rule 15 establishes the procedures to be followed in the event that two separate but concurrent appeals are filed challenging the same Tax Commission decisionone in the district court, sitting as a tax court pursuant to Utah Code section 59-1-602(1), and another in the Supreme Court pursuant to Utah Code section 59-1-610. In such cases, the rule requires that the appeal in the Supreme Court "shall be, absent compelling circumstances, (1) stayed pending the resolution of the proceeding before the district court, and (2) dismissed upon the issuance of a final appealable order by the district court." Utah R.App. P. 15(a).
¶ 14 We have not previously examined what might constitute a compelling circumstance that would enable us to retain an appeal such as this one. And we do not do *161 so in this case because the Counties have not addressed whether compelling circumstances exist that would prevent dismissal. The sole basis of their argument against the application of rule 15 is that it is a substantive rule and consequently should not be applied retroactively. Because the Counties have not demonstrated a compelling reason to retain this administrative appeal, we dismiss it pursuant to rule 15.[6]
CONCLUSION
¶ 15 We hold that rule 15 of the Utah Rules of Appellate Procedure is a procedural rule and as such may be applied retroactively. Application of rule 15 requires dismissal of this Administrative Appeal because the Counties have not demonstrated compelling circumstances for retaining it. Because we hold that rule 15 applies, we do not reach the merits of the Counties' appeal.
¶ 16 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice NEHRING, and Judge PULLAN concur in Justice PARRISH'S opinion.
¶ 17 District Judge DEREK P. PULLAN sat.
NOTES
[1] These counties include Beaver County, Box Elder County, Cache County, Davis County, Iron County, Juab County, Millard County, Morgan County, Salt Lake County, Summit County, Tooele County, Utah County, Wasatch County, Washington County, and Weber County.
[2] For purposes of this opinion, we will call this appeal the "Administrative Appeal."
[3] The Utah Code provides two separate avenues of appeal for those who are dissatisfied with a decision of the Tax Commission. Section 59-1-602 allows a party to appeal Tax Commission decisions to a district court, sitting as a tax court, for a de novo review and section 59-1-610 provides for the ability to appeal to the Supreme Court for an administrative review.
[4] For purposes of this opinion, we will call this appeal the "Tax Court Appeal."
[5] Until today, this court has only had the occasion to analyze the appropriateness of applying statutes retroactively. This case involves a rule of procedure, rather than a statute. Nonetheless we hold that the same substantive analysis may be applied to either statutes or rules in determining the appropriateness of retroactivity. See, e.g., Ex parte Luker, 25 So.3d 1152, 1155 (Ala.2007) (deciding the appropriateness of retroactively applying a Rule of Civil Procedure and holding that a procedural rule that affected no substantive rights should be applied retroactively).
[6] Even if rule 15 did not apply, this appeal would nevertheless be subject to dismissal because it is moot. "`An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect.'" Frito-Lay v. Utah Labor Comm'n, 2009 UT 71, ¶ 33, 222 P.3d 55 (quoting Richards v. Baum, 914 P.2d 719, 720 (Utah 1996)). In this case, the appeal filed by T-Mobile in the district court pursuant to Utah Code section 59-1-601 (2008) and the subsequent valuation decision issued by the district court rendered the Tax Commission's prior decision a "nullity." Cf. Evans Sutherland Computer Corp. v. Utah State Tax Comm'n, 953 P.2d 435, 443 (Utah 1997) ("Section 59-1-601's grant of jurisdiction to the district court . . . effectively eliminates the Commission's role whenever one of the parties chooses to seek review under that section.") Because the Tax Commission's opinion that is the subject of this Administrative Appeal became a legal nullity upon issuance of the decision by the tax court, any determination by this court as to the correctness of the Tax Commission's opinion would be without legal effect, rendering this appeal moot.
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474 S.E.2d 70 (1996)
222 Ga. App. 264
MACON-BIBB COUNTY PLANNING AND ZONING COMMISSION et al.
v.
BIBB COUNTY SCHOOL DISTRICT.
No. A96A0105.
Court of Appeals of Georgia.
June 25, 1996.
Reconsideration Denied July 9, 1996.
Reconsideration Dismissed July 12, 1996.
Certiorari Denied October 18, 1996.
*71 Almand & Ruffin, O. Hale Almand, Jr., Roy W. Griffis, Jr., David L. McGuffey, Macon, for Appellants.
Jones, Cork & Miller, W. Warren Plowden, Jr., Howard J. Strickland, Jr., Sharon H. Reeves, Macon, Shawn M. Story, Stockbridge, for Appellee.
BEASLEY, Chief Judge.
The Bibb County School District applied to the Macon-Bibb County Planning and Zoning Commission for a conditional use permit authorizing construction of a football stadium at one of the county's middle schools. The Commission denied the application on the ground that construction plans do not provide the minimum number of off-street parking spaces required by the Comprehensive Land Development Resolution for the City of Macon and Bibb County.
The School District sued the Commission and its members, seeking a declaratory judgment and injunctive relief, claiming that it is exempt from local zoning regulations. In an order which cited Macon Assn., etc., v. Macon-Bibb County Planning, etc., Commn., 252 Ga. 484, 314 S.E.2d 218 (1984), and Macon-Bibb County Hosp. Auth. v. Madison, 204 Ga.App. 741, 420 S.E.2d 586 (1992), the court granted the School District's requests for relief. Appeal was taken to the Supreme Court of Georgia, Ga. Const. Art. VI, Sec. VI, Par. Ill, (5). That court transferred it, stating that injunctive relief was corollary to legal issues and citing Macon-Bibb County Hosp. Auth., supra, as a similar example of the Court of Appeals jurisdiction.
We granted the Commission's application for discretionary appeal. OCGA § 5-6-35(a)(1). See Miller v. Ga. Dept. of Public Safety, 265 Ga. 62, 453 S.E.2d 725 (1995). The Commission contends, advancing several grounds, that the court erred in determining that the School District is exempt from the parking requirements of the Resolution.
1. In Macon Assn., supra at 488(3), 314 S.E.2d 218, the Court recognized that in this country, the general rule granting immunity from local zoning ordinances to governmental entities is supported by essentially four traditional tests: the Superior Sovereign Test, the Governmental Propriety Test, the Power of Eminent Domain Test, and the Statutory Guidance Test.
"The Superior Sovereign Test holds that since the state and its units and agencies occupy a superior position to municipalities in the governmental hierarchy, their exemption from municipal zoning regulation is a matter of preemption. The Governmental Propriety Test holds that property of a state governmental unit is exempt from local zoning when a governmental function is being performed but not when a proprietary function is being performed. Cases applying the Power of Eminent Domain Test take the position that when a political unit is authorized to condemn, it is automatically immune from local zoning regulation when it acts in furtherance of its designated public function. Under the Statutory Guidance Test, the courts simply look to the legislative statutes in order to glean some expression of legislative intent on the immunity question." Id.
The Court in Macon Assn. observed that "all of these tests have been criticized, as constituting nothing more than `unhelpful epithets.' [cit.]," and that "[i]t thus has been suggested that these tests should be eschewed in favor of a balancing-of-interests test to resolve the `critical question of which governmental interest should prevail when there is a conflict between the zoning ordinance of one political unit and the statutory authority of another unit to perform a designated public function.' [Cits.]" Id. at 488-489, *72 314 S.E.2d 218. However, the Court rejected the balancing-of-interests test as "too nebulous and judicially unmanageable." Id. at 490(6), 314 S.E.2d 218.
The question in Macon Assn. was whether property owned by a nonprofit corporation is immune from local zoning regulations if the corporation is performing services which are governmental in nature. The Court held that such property does not have zoning immunity "at least in the absence of a clear expression of intent by the legislature that such immunity be extended." Id. Although the Court in Macon Assn. employed a statutory guidance analysis, it has rejected such an analysis where the question was whether a governmental entity is amenable to local zoning ordinances. West v. Housing Auth. etc. of Atlanta, 211 Ga. 133, 135(1), 84 S.E.2d 30 (1954), held that the fact that a municipal housing authority was condemning property for a housing project in violation of a municipal zoning ordinance was not a valid ground to enjoin the authority from proceeding with the project, even though the state statutory housing authorities law required all such housing projects to conform to local zoning laws.
In Madison, the question was whether the Macon-Bibb County Hospital Authority was subject to a regulation of the Commission prohibiting the placement of roof signs on buildings. We answered this question in the negative because a hospital authority is an instrumentality of county government and "`[a] county may use property it owns for a necessary governmental purpose, even though such use violates a zoning ordinance.' [Cit.]" Madison, supra at 742, 420 S.E.2d 586.
2. The Commission argues that Bibb County and City of Macon ordinances have conferred upon it the power to enforce its zoning regulations against the county. But even if an exception to Georgia's zoning immunity rule could be recognized in this instance, the ordinances referred to are not included in the record, and we cannot take judicial notice of them. Knutzen v. O'Leary, 210 Ga.App. 590, 593(3), 437 S.E.2d 347 (1993).
3. The Commission argues that it has the power to enforce a zoning ordinance against the School District because, under a local constitutional amendment (Ga.L.1947, p. 1240), Macon and Bibb County have conferred their zoning power upon the Commission. Martin Marietta Corp. v. Macon-Bibb County Planning etc. Commn., 235 Ga. 689, 691, 221 S.E.2d 401 (1975). The constitutional amendment does not confer such a power in contravention of the immunity rule.
4. Next, the Commission argues that the School District does not have zoning immunity because in this case, unlike Madison, violation of the zoning ordinance reaches beyond the boundaries of the subject property and into the surrounding community, creating traffic congestion and assorted safety hazards. As authority, it relies on Robinson v. Indianola Municipal Separate School District, 467 So.2d 911 (Miss.1985), and School Dist. of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277, 207 A.2d 864 (1965). In those cases, the Supreme Courts of Mississippi and Pennsylvania held that the zoning ordinance of a municipality governing off-street parking does apply to a municipal school district in its construction of a public school. These decisions were based on statutory guidance rationales incompatible with the zoning immunity rule as applied in Macon Assn. and West. We have no authority to create an exception to the immunity based on the effect which the district's use of its land may or will have on area traffic. It will be necessary instead to find other means of controlling or abating this resulting impact.
5. Finally, the Commission argues that in this case, unlike Macon Assn., application of a balancing-of-interests test is appropriate. Although it has utility, it was rejected in Macon Assn. Therefore, we are not authorized to apply it.
Judgment affirmed.
BIRDSONG, P.J., and BLACKBURN, J., concur.
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594 F.2d 243
U. S.v.Torres-Martinez
No. 78-1850
United States Court of Appeals, Ninth Circuit
2/26/79
1
D.Ariz.
AFFIRMED
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85 Ariz. 276 (1959)
336 P.2d 852
Masako HELTON, Widow, and Masako Lee Helton, Leon Masayuki Helton and William Masao Helton, Minor children of George William Helton, Deceased, Petitioners,
v.
INDUSTRIAL COMMISSION of Arizona and State of Arizona-State Auditor (Arizona Game and Fish Commission), Respondents.
No. 6443.
Supreme Court of Arizona.
March 19, 1959.
*277 Robert E. Yount and Fenton J. McDonough, Phoenix, for petitioners.
Robert K. Park, Phoenix, for respondent Industrial Commission. John R. Franks, Donald J. Morgan, James D. Lester and Frances M. Long, Phoenix, of counsel.
BERNSTEIN, Justice.
By certiorari we are asked to review an award of the Industrial Commission denying "death benefits" to the petitioners for the death of their husband and father upon findings that the death did not arise out of and in the course of the decedent's employment, A.R.S. § 23-1021.
The decedent was killed in a highway accident approximately twenty miles north of Phoenix at about one a.m. on November 13, 1956 while driving a truck owned by his employer, the Arizona Game and Fish Commission. He had been working since November 9, 1956, as one of a four-member labor crew camping at the Page Springs Hatchery near Cornville, Arizona, approximately 110 miles north of Phoenix, and the truck was given to his charge to transport himself and the other members of the crew to the job site, to use in normal course to obtain supplies or in case of emergency and to return the men at the conclusion of their work period. It was the custom of the employment for men *278 camping at a job site to work ten straight days, 8 a.m. to 5 p.m., and then be allowed four days off. Thus, at the time of the accident, decedent's work period was not concluded and he was expected to work at 8 a.m. that morning.
No witness connected with decedent's employment could testify as to a known reason within the course of his employment for the deceased to travel where he did, apparently en route to Phoenix, at the time of the accident. The revealing testimony in that regard was that of a fellow workman, John Luten, who testified that he saw and spoke with the deceased when he returned with other members of the crew from Cottonwood, where groceries were purchased, at about 10 p.m. on November 12th. At that time, shortly before he was heard to drive off, the deceased said "he felt like going home." The deceased lived in Phoenix, where his family was at the time. However, it may be noted that Luten had previously stated, in affidavit form, that:
"Between ten and ten-thirty on the night of November 12, 1956 I saw George W. Helton, talked with him, but did not know he was going anywhere. He suddenly decided to leave in his pickup truck, why I do not know."
Some of the deceased's personal belongings were found in the truck and some at the camp site. An assistant federal aid coordinator with the Arizona Game and Fish Commission had discussed with the deceased the prospect of his permanent employment by the Commission, and it was expected that such status would be obtained in the near future, on or shortly after December 15, 1956.
Essentially upon the foregoing evidence the Commission found that the deceased "had abandoned his employment and had embarked upon a frolic of his own."
Arguing against the validity of the award, petitioners rely upon the uncertainty of purpose for the decedent's trip to invoke a presumption that the decedent was acting in accordance with the directives of his employer and, accordingly, must have been traveling in the interests of his employer. Cf. Martin v. Industrial Commission, 73 Ariz. 401, 242 P.2d 286. That argument, we believe, cannot avail petitioners here. Whatever "unexplained death" presumption might be appropriate in other circumstances, see Martin v. Industrial Commission, 75 Ariz. 403, 411, 257 P.2d 596, 601, it could not survive the explanation which was offered, and accepted by the Commission, in this case that the decedent's purpose was to visit his home for personal reasons. This court has previously approved what has become known as the Thayerian rule, adopted by the American *279 Law Institute in its Model Code of Evidence, Rules 701-705, that a presumption serves to establish the presumed fact only in the absence of contrary evidence, and that it vanishes upon the introduction of opposing evidence. See Silva v. Traver, 63 Ariz. 364, 162 P.2d 615; Martin v. Industrial Commission, 73 Ariz. 401, 242 P.2d 286. We also said in Hansen v. Oakley, 76 Ariz. 307, 311, 263 P.2d 807, 810, that the presumption "vanishes in the light of evidence which would allow a reasonable mind to infer" to the contrary. (Emphasis supplied.) Even if we were to utilize the rule permitting a presumption to stand unless opposed by persuasive evidence, advocated by Professor Morgan and in part adopted by the Commissioners on Uniform State Laws in Rule 14 of the Uniform Rules of Evidence,[1] petitioners' position would not be bettered. The Commission obviously believed the evidence contrary to the presumption. In that regard, petitioners' argument that Luten's testimony was untrustworthy in light of this prior affidavit deserves only passing mention: even if the affidavit is read as inconsistent with the testimony, and it need not be, it is for the Commission to weigh the credibility of conflicting evidence, and we find no suggestion of abuse of discretion in that regard. Cf. Muchmore v. Industrial Commission, 81 Ariz. 345, 306 P.2d 272.
Finally, petitioner argues that the decedent may have decided to quit his job, and thus was returning to his home in the course of his employment, see Harris v. Industrial Commission, 72 Ariz. 197, 198, 232 P.2d 846, 847. In the light of the facts that (a) such a course would have stranded the decedent's fellow workmen until a truck was sent to them; (b) decedent had in mind some assurance of permanent employment by the same employer; and (c) decedent left some of his gear at the camp, the inference contended for is far from irresistible. In any event, suffice it to say that, taking into account all the evidence, whatever other inferential findings might be drawn therefrom, the one drawn by the Commission was not unreasonable. See Muchmore v. Industrial Commission, supra; Harrington v. Industrial Commission, 84 Ariz. 356, 359, 328 P.2d 311, 313:
"We have said that an inference is nothing more than a permissible deduction from the testimony. Atchison, T. & S.F.R. Co. v. Hicks, 64 Ariz. 15, 165 P.2d 167. It has no legal probative effect other than the jury is pleased to attribute to it in a given case. Puget Sound Electric Ry. v. Benson, 9 Cir., 253 F. 710. Since it is merely a permissive deduction from the testimony, the jury or the triers of fact are not *280 compelled to draw the inference even in the absence of contrary evidence and have the right to refuse to do so. Whether a particular inference can be drawn from the evidence is a question of law, but whether the inference shall be drawn in any given case is a question of fact for the jury. Blank v. Coffin, 20 Cal.2d 457, 126 P.2d 868. An inference of fact, even in the absence of conflicting evidence, does not forestall fact finding to the contrary. Seydler v. Baumgarten, Tex.Civ.App., 1956, 294 S.W.2d 467. The jury may accept or reject the inference or accord it such probative value as it desires. Bell Cab & U-Drive-It Co. v. Sloan, 193 Tenn. 352, 246 S.W.2d 41. Even if we assume that the inference to be drawn was reasonable, nonetheless, this is exclusively the province of the triers of fact and we will not disturb their conclusions unless they manifestly appear arbitrary. While the Commission may not arbitrarily disregard the only reasonable inference, Stanley v. Moan, 71 Ariz. 359, 227 P.2d 389, there are here admittedly other inferences which might be drawn."
The award is affirmed.
PHELPS, C.J., and STRUCKMEYER, UDALL and JOHNSON, JJ., concur.
NOTES
[1] See Morgan, Presumptions, 10 Rutgers L.Rev. 512; Morgan, Presumptions, 12 Wash.L.Rev. and State Bar J. 255; Gausewitz, Presumptions, 40 Minn.L.Rev. 391; McBaine, Burden of Proof; Presumptions, 2 U.C.L.A.L.Rev. 13.
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Doreatha Walker v. Safari Kids Learning Center
Appellate case number: 01-16-00613-CV
Trial court case number: 2015-57309
Trial court: 269th District Court of Harris County
Appellant, Doreatha Walker, proceeding pro se, has filed a “Motion Requesting a
Refund of Filing Fees” in this Court because she claims that the contest to her affidavit of
indigence was overruled in the above-referenced trial court case. Appellant attached an
uncertified copy of the trial court’s order overruling the district clerk’s contest to her
affidavit of indigence. On September 8, 2016, the Clerk of this Court requested the
indigent clerk’s record from the district clerk for the indigent clerk’s record.
Accordingly, the Court grants the appellant’s “Motion Requesting a Refund of
Filing Fees” because the district clerk filed an indigent clerk’s record in this Court on
September 9, 2016, containing a certified copy of the trial court’s order overruling the
district clerk’s contest to her affidavit of indigence, which was signed on August 24,
2016. Appellant should respond within 30 days of the date of this order with the mailing
address and tax ID number for the refund.
The Clerk of this Court is ORDERED to refund the $205.00 filing fee to the
appellant within 45 days of the date of this order and to mark the appellant indigent for
purposes of the appellate filing fee and the clerk’s and reporter’s record fees.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
Date: September 13, 2016
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319 P.2d 195 (1957)
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a life insurance corporation, Plaintiff-Respondent,
v.
P. G. NEILL, as Tax Collector of the State of Idaho, Defendant-Appellant.
The UNION CENTRAL LIFE INSURANCE COMPANY, a life insurance corporation, Plaintiff-Respondent,
v.
P. G. NEILL, as Tax Collector of the State of Idaho, Defendant-Appellant.
Nos. 8399, 8423.
Supreme Court of Idaho.
December 11, 1957.
*196 Graydon W. Smith, Atty. Gen., Edward J. Aschenbrener and Elbert E. Gass, Asst. Attys. Gen., Boise, for appellant.
Ralph R. Breshears, Boise, for respondents.
Claude Marcus, Oscar W. Worthwine, Lloyd E. Haight and Carey H. Nixon, Boise, Alan G. Paine, Spokane, Wash., F. Gerald Irvine, Salt Lake City, Utah, A. L. Merrill, Pocatello, and Parry, Robertson & Daly, Twin Falls, and Franklin J. Allen, Salt Lake City, Utah, amici curiae.
TAYLOR, Justice.
Subsequent to the first opinion filed February 8, 1957, rehearing was had on November 4, 1957. The first opinion is withdrawn and the following substituted.
Plaintiffs (respondents), both life insurance companies (§ 63-3038, I.C.), brought separate actions against defendant (appellant) state tax collector, to recover taxes alleged to have been erroneously paid. The issues being the same in each, the cases were consolidated. The refunds sought are claimed to have arisen out of overpayment by plaintiffs of taxes levied and collected under the "Property Relief Act of 1931", Title 63, Chap. 30, I.C. The causes were submitted to the district court upon an agreed statement of facts, from which the following appears.
The John Hancock Mutual Life Insurance Company was, and is, a Massachusetts corporation with its principal place of business at Boston. It was authorized to engage, and was and is engaged, in the business of writing life, and health and accident insurance in this state. During the years involved it was the owner of bonds of the Idaho Power Company and the Boise Water Corporation. The bonds were purchased and held outside this state as an investment of its reserves and other funds. The principal and interest thereon were payable to the trustee in New York City, or, in the case of Boise Water Corporation, optionally, at Philadelphia. In making its returns to the state tax collector, required by Title 63, Chap. 30, I.C., for the years 1950, 1951 and 1952, plaintiff in its returns included interest received from the Idaho Power Company and the Boise Water Corporation upon the bonds of these corporations held by it, and paid the tax thereon required by that statute.
The facts in the case of The Union Central Life Insurance Company are the same, except that The Union Central was and is an Ohio corporation with its principal place of business in Cincinnati. It held bonds of the Idaho Power Company only, *197 and is claiming refund of overpayment for four years 1950, 1951, 1952 and 1953.
The Idaho Power Company, during the years involved, was a corporation organized under the laws of Maine, with its principal office at Augusta, where its stockholders' meetings were held. It was authorized to, and did, do business in the state of Idaho as a public utility, with its principal office in Boise. All of the electric power generated by it was generated within the state of Idaho. It did no business as a public utility in either of the states of Maine or New York. It derived all of its revenues from its business operations in the states of Idaho, Oregon and Nevada. All of its principal officers resided, and all of its directors' meetings were held, and all of its books of account and records were kept and maintained, and the general offices of its management were maintained, at Boise, Idaho. During the same period over 92% of its net operating revenue was derived from its business operations in Idaho, and more than 92% of the value of its total plant in service was located in Idaho.
The Boise Water Corporation during the period involved was a corporation organized under the laws of Idaho, with its principal place of business at Boise. It was doing business as a public utility and all of its operating property was located within, and all of its revenues were derived from its business operations in, the state of Idaho.
The bonds held by the plaintiffs were secured by trust indentures covering all of the properties of the respective issuing corporations, and were recorded in the counties of this state where such properties were located.
Pertinent provisions of Chap. 30, Title 63, I.C., affecting plaintiffs, are as follows:
"Life insurance companies shall pay a tax for each taxable year according to and measured by their net income at the rate and on the basis specified in section 63-3028 of this chapter." § 63-3039, I.C.
"a. In the case of a life insurance company the term `gross income' means the gross amount of income received during the taxable year from interest, dividends and rents arising within the state of Idaho." § 63-3040, I.C.
The pertinent portions of § 63-3028, I.C., providing the rate and basis of the tax, are:
"A tax shall be levied, assessed, collected, and paid for each taxable year upon:
"a. All corporations as defined in this chapter, except as herein otherwise expressly provided, for the privilege of carrying on and doing business within this state, in addition to license taxes levied under any law of this state and taxes levied upon the real and personal property of such corporations:
"b. * * *
"1. That the tax so imposed, levied and assesed [assessed] upon corporations and national banking associations shall be in addition to any license tax now or hereafter authorized by law, and taxes authorized upon the real or personal property of such corporations and national banking associations, but it shall be in lieu of any tax on the shares of stock of such corporations and national banking associations.
"2. The amount of the tax levied under this section shall be according to and measured by the net income for each taxable year of such corporations and national banking associations from all sources, including the interest on bonds issued by or under authority of the federal government, and bonds issued by the state of Idaho or any of the municipal or other subdivisions thereof, and such tax shall be computed at the following rates, to-wit:" Then follows the rate of the tax graduated according to income.
Section 63-3041, I.C. defines net income as gross income less certain deductions therein enumerated. One of such deductions (subsection 5) allows a credit for investment *198 expenses paid within the state of Idaho, and for an allocated portion of general expenses included in such investment expenses.
The John Hancock company claimed and was allowed deductions for investment expenses as follows: for 1950, $42,633.60; for 1951, $54,489.26; for 1952, $47,070.35. The Union Central claimed and was allowed deductions for investment expenses: for 1950, $6,489.02; for 1951, $4,674.22; for 1952, $4,814.40; for 1953, $4,413.96.
These companies are required by our law to invest, and keep invested, in approved securities, their minimum cash capital. §§ 41-602 and 41-603, I.C. They are permitted by our law to invest any of their funds in approved securities of the quality approved for domestic insurers (§ 41-640, I.C.), including bonds of Idaho corporations. §§ 41-623 and 41-627, I.C. Thus they are both required and permitted to make investments under and by virtue of the franchise granted them by the state. And they are allowed to deduct from the measure of their tax the expenses incurred, including an allocated portion of their general investment expenses. It is apparent the legislature has recognized that investment of their funds is an essential part of the business of a life insurance company, and a part of the business authorized by the franchise for which the tax is exacted.
The agreed statement of facts contains the following:
"That neither the purchase nor the ownership of any of said bonds by the plaintiff nor the interest received therefrom by the plaintiff bears or has any relationship to the life insurance business done by the plaintiff in the State of Idaho or any property owned by the plaintiff in the State of Idaho."
If this stipulation is intended to mean that neither the bonds nor the interest thereon are employed by plaintiffs in their life insurance business in this state, the fact may be conceded for purposes of this decision. We understand it to be plaintiffs' position that the bonds and the interest thereon, not being purchased or held in this state and not being in any way employed by them in, or in connection with, the insurance business carried on by them in this state, have not acquired a business or tax situs in this state. This proposition may also be conceded. The tax involved being a franchise tax and not a tax upon the interest, the tax situs of the interest is immaterial.
If the stipulation was intended to mean that the bonds and their interest have no relation to the business which plaintiffs are authorized by their franchises to carry on in this state, then it would be ineffective because, as so construed, it would be a conclusion of law contrary to the statutes above noted and not binding upon the court. Hart v. Turner, 39 Idaho 50, 226 P. 282; Hahn v. Nat. Casualty Co., 64 Idaho 684, 136 P.2d 739; Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282; Valdez v. Taylor Auto. Co., 129 Cal.App.2d 810, 278 P.2d 91; North Platte Lodge v. Board of Equalization, 125 Neb. 841, 252 N.W. 313, 92 A.L.R. 658, and Annotation 663, II e. page 670; National Bank of Colchester v. Murphy, 384 Ill. 61, 50 N.E.2d 748; Hitchins v. Mayor, 177 Md. 72, 8 A.2d 626; Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722.
It is to be noted that § 63-3028, I.C., containing the tax schedule, provides that the tax be levied upon net income "from all sources". In the case of insurance companies, gross income, § 63-3040, is limited to interest, dividends and rents arising within the state, no doubt because insurance companies are subject to the premium tax provided by Chap. 8, Title 41, I.C. John Hancock Mut. Life Ins. Co. v. Haworth, 68 Idaho 185, 191 P.2d 359.
Plaintiffs contend that the interest received upon the bonds of the Idaho Power Company and the Boise Water Corporation did not arise within the state of Idaho; that the bonds are intangibles having their situs at the domicile of the owner under the rule of mobilia sequuntur personam, and that the income therefrom likewise has *199 its situs for tax purposes at the domicile of the owner. Two fundamental questions are posed. First, is the interest on these bonds interest "arising within the state of Idaho" within the meaning of § 63-3040, I.C.? Second, is the tax violative of federal or state constitutions?
The answer to the first question appears sufficiently clear from the language of § 63-3040, I.C. The interest is paid out of the earnings of the Idaho Power Company and the Boise Water Corporation. The earnings of these companies arise out of business carried on within the state. The interest, being a portion of such earnings, therefore arises within the state. The fact that the interest is sent by the obligors to the trustee in New York for payment of the bond obligation, does not require the conclusion that it arises in New York. The meaning ascribed by the legislature to the words, "interest arising within the state", is evidenced by § 63-3019 of the same act. That section, defining net income as applied to others than insurance companies, provides:
"a. In the case of a nonresident individual to the extent that he has a business situs in the state of Idaho, or any corporation subject to tax under this chapter, the following items of gross income shall be treated as income from sources within the state of Idaho:
"1. Interest on bonds, notes or other interest-bearing obligations of residents, corporate or otherwise; * *." § 63-3019, I.C.
Plaintiffs object to consideration or application of § 63-3019 because its provisions are not applicable to insurance companies and that the particular sections defining net income of life insurance companies, §§ 63-3040 and 63-3041, are controlling. We recognize the rule that a particular statute, in case of conflict or inconsistency, controls over a general statute. Here, however, there is no inconsistency or conflict between the two sections. The applicable rule is that the entire act and all of its provisions are to be construed as a whole in determining legislative intent. Oregon Short Line R. R. Co. v. Minidoka County School District, 28 Idaho 214, 153 P. 424; Lebrecht v. Union Indemnity Co., 53 Idaho 228, 22 P.2d 1066, 89 A.L.R. 640; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105; Keenan v. Price, 68 Idaho 423, 195 P.2d 662; Nampa Lodge No. 1389, etc. v. Smylie, 71 Idaho 212, 229 P.2d 991; Barraclough v. State Tax Commission, 75 Idaho 4, 266 P.2d 371; Atlantic Coast Line R. Co. v. Commonwealth, 302 Ky. 36, 193 S.W.2d 749; Bond v. Kennedy, 213 Ark. 758, 212 S.W.2d 336; Mississippi Cottonseed Products Co. v. Stone, 184 Miss. 409, 184 So. 428, certiorari denied 306 U.S. 656, 59 S.Ct. 774, 83 L.Ed. 1054. The act itself is replete with cross references from one section to another, evidencing the intent of the legislature that it should be construed as a whole. In fact, the legislature made the provisions of § 63-3019 applicable to life insurance companies by the use of the words "any corporation subject to tax under this chapter." "This chapter" includes sections 63-3040 and 63-3041, defining gross and net income of life insurance companies. Session Laws 1931 (E.S.) Chap. 2, §§ 37, 38, p. 40, and Session Laws 1933, Chap. 159, §§ 7, 15.
Subparagraph 7 of § 63-3013, I.C., exempts the income of resident persons and domestic corporations "when derived from sources outside of the state". As a reciprocal consideration this would indicate the intention of the legislature to include income of nonresidents and foreign corporations when derived from sources within this state. Indeed, such a construction is necessary to avoid placing a discriminatory tax burden upon residents and domestic corporations. Assume the case of a domestic life insurance company doing business in the state in competition with plaintiffs. If such a company owned bonds of the Idaho Power Company or Boise Water Corporation, it must include the interest received upon those bonds in its return to the tax collector. Unjust discrimination would result *200 if plaintiffs' interest were not included. Northwest Finance Co. v. Nord, 70 S.D. 549, 19 N.W.2d 578.
The following authorities are not necessarily in point to the extent they deal with "tax situs" of intangibles, and income or other taxes dependent upon such situs. They do, however, support our view that the interest concerned herein arose within this state, is a part of the "gross income" of plaintiffs as defined by § 63-3040, I.C., and that the franchise tax measured thereby is not unconstitutional. In State ex rel. Froedtert G. & M. Co. v. Tax Commission, 221 Wis. 225, 265 N.W. 672, 267 N.W. 52, 56, 104 A.L.R. 1478, the Wisconsin court held that a state tax upon the privilege of declaring and receiving dividends out of property located and business transacted in that state does not, as to nonresident stockholders, violate due process or tax property or persons beyond the jurisdiction of the state. "The fact that the dividends involved are derived from earnings within the state gives them a constructive situs within the state." In an earlier decision, State ex rel. Manitowoc Gas Co. v. Wisconsin Tax Commission, 161 Wis. 111, 152 N. W. 848, relied upon by respondents, the Wisconsin court had held that interest paid by a domestic corporation to nonresident bondholders had its situs at the domicile of the bondholder and was not taxable in Wisconsin. In attempting to distinguish the Manitowoc case, the court, in the Froedtert case, said:
"Dividends derived from business transacted within the state constitute income derived as stated in that statute, and in the instant statute, in a sense that interest paid by a corporation does not. Interest paid may not have been earned at all. It may have been borrowed. And if earned it may not have been earned within the state, or not wholly earned therein. `Income' as used in the statute is synonymous with `earnings'. Interest paid is not." State ex rel. Froedtert G. & M. Co. v. Tax Commission, 221 Wis. 225, 265 N.W. 672, 676, 104 A.L.R. 1478, at page 1485.
The distinction appears to be lacking in substance. If the interest was borrowed, the new loan and its accompanying interest must eventually be paid out of earnings. Affirming a later Wisconsin decision, 243 Wis. 198, 10 N.W.2d 169, 243 Wis. 211, 10 N.W.2d 174, the Supreme Court of the United States said:
"Personal presence within the state of the stockholder-taxpayers is not essential to the constitutional levy of a tax taken out of so much of the corporation's Wisconsin earnings as is distributed to them. A state may tax such part of the income of a non-resident as is fairly attributable either to property located in the state or to events or transactions which, occurring there, are subject to state regulation and which are within the protection of the state and entitled to the numerous other benefits which it confers. (Cases cited) And the privilege of receiving dividends derived from corporate activities within the state can have no greater immunity than the privilege of receiving any other income from sources located there.
"We think that Wisconsin may constitutionally tax the Wisconsin earnings distributed as dividends to the stockholders. It has afforded protection and benefits to appellant's corporate activities and transactions within the state. These activities have given rise to the dividend income of appellants' stockholders and this income fairly measures the benefits they have derived from these Wisconsin activities." International Harvester Co. v. Wisconsin Dept. of Tax., 322 U.S. 435, 64 S.Ct. 1060, 1064, 88 L.Ed. 1373, at pages 1379-1380.
In Union Electric Co.'s Petition, 349 Mo. 73, 161 S.W.2d 968, 970, 143 A.L.R. 141, the Missouri court held that dividends received by a domestic corporation upon stock owned by it in a foreign corporation, where *201 the operations of the foreign corporation were entirely outside the state, were not income from sources within the state, and therefore not taxable. Referring to the rule of mobilia sequuntur personam, the court said:
"It is also true that for many purposes the situs of personal property is considered to be at the domicile of its owner. This latter proposition, however, is purely fictitious and is now limited in its application to a few cases, principally those regarding the devolution of estates of decedents and bankrupts. * * * In the field of income taxation in particular it is important to penetrate beyond legal fictions and academic jurisprudence to the economic realities of the cases. It is conceded that the actual expenditure of labor and the actual use of capital which gave rise to the income represented by these dividends took place outside the state of Missouri." Union Electric Co.'s Petition, 349 Mo. 73, 161 S.W.2d 968, 970, 143 A.L.R. 141, at page 144.
And as to the tax levied upon interest received by a Missouri taxpayer upon bonds of a foreign corporation held by it in Missouri, the court said:
"But an examination of the decisions previously cited shows that the actual place where income payments are turned over to the taxpayer is not determinative of the source of the income. * * * These decisions and others like them make it plain that the mere point where payment reaches the hands of the taxpayer is not determinative of the source of the income. In the case of State ex rel. Manitowoc Gas Co. v. Wisconsin Tax Commission, 161 Wis. 111, 152 N.W. 848, supra, the Supreme Court of Wisconsin held that income paid in the form of interest by a Wisconsin corporation to bondholders in other states was not taxable in Wisconsin. We are unable to agree with the reasoning of this case, however. We think that the source of the income is the person paying the interest and not the mere bond itself, which is only an evidence of the indebtedness. It therefore follows that the interest payments must be treated in the same manner as the dividend payments, and what we have said in regard to dividends will largely apply also to interest." Union Electric Co.'s Petition, 349 Mo. 73, 161 S.W.2d 968, 972, 143 A.L.R. 141, at page 146.
Declaring that the purpose of its income tax law was to tax income earned within the state by both foreign and domestic corporations, and to exempt income of both earned without the state, the Supreme Court of Mississippi held that interest paid by residents on loans made by a foreign corporation has its taxable source within the state. Mississippi Cottonseed Products Co. v. Stone, 184 Miss. 409, 184 So. 428, certiorari denied 306 U.S. 656, 59 S.Ct. 774, 83 L.Ed. 1054.
In Arvey Corp. v. Fugate, 129 Colo. 595, 272 P.2d 652, certiorari denied 348 U.S. 871, 75 S.Ct. 106, 99 L.Ed. 685, an Illinois corporation, which had no business domicile or situs in Colorado, was taxed by Colorado upon a judgment obtained by it in Colorado against a Colorado corporation for profits made by the Colorado corporation from business conducted in Colorado, in which trade formulas of the Illinois corporation were wrongfully employed. The court held that the judgment and interest thereon, representing profits from business conducted in Colorado, had its source and tax situs in that state:
"Of course, the source or origin of any income naturally has a situs, and the decisions, let alone common sense, tell us that the situs is the location of the business activities from which the income is derived." 272 P. 2d at page 655.
Plaintiffs also rely upon Miller v. McColgan, 17 Cal.2d 432, 110 P.2d 419, 134 A.L.R. 1424. There the California court held that a California resident was not *202 entitled to credit against his California income tax for taxes paid to the Philippines on dividends on the stock of a Philippine corporation, although the certificates were actually held in the Philippines by an agent of the California taxpayer. Speaking of this decision the Missouri court in Union Electric Co's Petition, supra, said:
"With all due deference to the learned brethren in our sister state we cannot agree with their conclusion." Union Electric Co.'s Petition, 349 Mo. 73, 161 S.W.2d 968, 971, 143 A.L.R. 141, at page 145.
In a more recent case the Second District Court of Appeal of California said:
"The respondent's brief, however, calls attention to the fact that the Miller v. McColgan case, 17 Cal.2d 432, 110 P.2d 419, [134 A.L.R. 1424] just cited, was based upon First Nat. Bank of Boston v. State of Maine, 1932, 284 U.S. 312, 52 S.Ct. 174, 76 L.Ed. 313, which latter case was specifically overruled in 1942 in State Tax Commissioner of Utah v. Aldrich, 316 U.S. 174, 180, 62 S.Ct. 1008, 86 L.Ed. 1358, for which reason `Miller v. McColgan is not the law today'." Henley v. Franchise Tax Board, 122 Cal.App.2d 1, 264 P.2d 179, at page 181.
In the Henley case the court reached a conclusion directly opposite to that of the Miller case.
It is generally held, as plaintiffs recognize, that intangibles may acquire a tax situs in a jurisdiction other than the domicile of the owner where such intangibles are employed by the owner in business carried on in the foreign jurisdiction. Wheeling Steel Corp. v. Fox, 298 U.S. 193, 56 S.Ct. 773, 80 L.Ed. 1143, was such a case. Chief Justice Hughes there said:
"To attribute to Delaware, merely as the chartering state, the credits arising in the course of the business established in another state, and to deny to the latter the power to tax such credits upon the ground that it violates due process to treat the credits as within its jurisdiction, is to make a legal fiction dominate realities in a fashion quite as extreme as that which would attribute to the chartering state all the tangible possessions of the corporation without regard to their actual location." 298 U.S. 193, 56 S.Ct. 777, 80 L.Ed. at page 1148.
In Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 906, 83 L.Ed. 1339, cited by plaintiffs, the court said:
"* * * there are many circumstances in which more than one state may have jurisdiction to impose a tax and measure it by some or all of the taxpayer's intangibles. Shares of corporate stock may be taxed at the domicile of the shareholder and also at that of the corporation which the taxing state has created and controls; and income may be taxed both by the state where it is earned and by the state of the recipient's domicile. Protection, benefit, and power over the subject matter are not confined to either state. * * *
"The practical obstacles and unwarranted curtailments of state power which may be involved in attempting to prevent the taxation of diverse legal interests in intangibles in more than a single place, through first ascribing to them a fictitious situs and then invoking the prohibition of the Fourteenth Amendment against their taxation elsewhere, are exemplified by the circumstances of the present case." 307 U.S. 357, 59 S.Ct. at page 906, 83 L.Ed. at pages 1348, 1349.
Having particular reference to the constitutional issue urged by plaintiffs, we cite State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 250, 85 L.Ed. 267, 130 A.L.R. 1229. There the court said:
"* * * We cannot, however, be too often reminded that the limits on the otherwise autonomous powers of the states are those in the Constitution and not verbal weapons imported into it. `Taxable event', `jurisdiction to tax', *203 `business situs', `extraterritoriality', are all compendious ways of implying the impotence of state power because state power has nothing on which to operate. These tags are not instruments of adjudication but statements of result in applying the sole constitutional test for a case like the present one. That test is whether property was taken without due process of law, or, if paraphrase we must, whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state. The simple but controlling question is whether the state has given anything for which it can ask return. The substantial privilege of carrying on business in Wisconsin, which has been given, clearly supports the tax." 311 U.S. 435, 61 S.Ct. at page 250, 85 L.Ed. at pages 270-271.
The same rule was again applied in Ott v. Mississippi Valley Barge Line Company, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585.
Upholding the right of the state to tax a note held by a non-resident and secured by a mortgage on realty in Florida, the supreme court of that state said:
"It is obvious that the recording of a mortgage, or other security, becomes the generating source of important and definite accessions to the obligation secured thereby. In fact, we think it may fairly be said that the transaction in the instant case would not have been entered into without the security afforded by the mortgage on Florida realty and the protection afforded by our recording statutes, and others, relating to the rights of a mortgagee. And the `practical fact of our power' or sovereignty over such security is obvious. It is the fact of our sovereignty which gives life to such security which transforms it from a worthless piece of paper into a valuable legal right." State ex rel. U. S. Sugar Corp. v. Gay, Fla., 46 So.2d 165, at page 168.
The federal act, after which ours was patterned, is construed in keeping with our conclusion. Mertens in his law of Federal Income Taxation, Vol. 8, §§ 45.27, 45.28 and 45.29, says:
"The Supreme Court has said that income may be derived from three possible sources only: (1) capital and/or (2) labor and/or (3) the sale of capital assets. While the definition seems no longer tied to these restrictive categories, they serve as useful guides in any inquiry into whether a particular item is from `sources within the United States' and suggest an investigation into the nature and location of the activities or property which produce the income. If the income is from labor (services) the place where the labor is done should be decisive; if it is done in this country, the income should be from `sources within the United States.' If the income is from capital, the place where the capital is employed should be decisive; if it is employed in this country, the income should be from `sources within the United States.' If the income is from the sale of capital assets, the place where the sale is made should be likewise decisive. Much confusion will be avoided by regarding the term `source' in this fundamental light. It is not a place; it is an activity or property. As such it has a situs or location; and if that situs or location is within the United States the resulting income is taxable to nonresident aliens and foreign corporations. The intention of Congress in the 1916 and subsequent statutes was to discard the 1909 and 1913 basis of taxing nonresident aliens and foreign corporations and to make the test of taxability the `source' or situs of the activities or property which produce the income. * * * Thus, if an income be taxed, the recipient thereof must have a domicile within the jurisdiction, or the property or activities out of which the income issues or is derived must be situated within the jurisdiction so that the source of the *204 income may be said to have a situs in this country. The basic rule is that the consideration for taxation is protection of life and property and that the income rightly to be levied upon to defray the burdens of the United States government is that income which is created by activities and property protected by this government. The result may be double taxation, but this is a matter within the jurisdiction of Congress, not the Board and courts." § 45.27, pp. 289-90.
"The residence of the obligor who pays the interest rather than the physical location of the securities or the place of payment, is the determinative factor of the source of such income." § 45.29, p. 295.
See also 167 A.L.R., Annotation, 943, at page 972; Metropolitan Life Ins. Co. v. City of New Orleans, 205 U.S. 395, 27 S.Ct. 499, 51 L.Ed. 853; Internal Revenue Act of 1928, Sec. 119(a) (1), 26 U.S.C.A. § 119(a) (1) I.R.C.1939; Annotation 76 A.L.R. 806, VII at page 816; Annotation 143 A.L.R. 361, VII at page 380.
Additional cases which we have considered and which support our conclusion that the tax does not violate the Fourteenth Amendment of the Federal constitution, nor the due process clause of our own constitution, are: Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Scottish American Mtg. Co., Ltd., v. Minidoka County, 47 Idaho 33, 272 P. 498, 65 A.L.R. 663; Geo. B. Wallace, Inc., v. Pfost, 57 Idaho 279, 65 P.2d 725, 110 A.L.R. 613; John Hancock Mut. Life Ins. Co. v. Haworth, 68 Idaho 185, 191 P.2d 359; State ex rel. Haworth v. Berntsen, 68 Idaho 539, 200 P.2d 1007; El Dorado Oil Works v. McColgan, 34 Cal.2d 731, 215 P.2d 4; Arvey Corp. v. Fugate, 129 Colo. 595, 272 P.2d 652, certiorari denied 348 U.S. 871, 75 S.Ct. 106, 99 L.Ed. 685; Shaffer v. Carter, 252 U.S. 37, 40 S.Ct. 221, 64 L.Ed. 445; Newark Fire Ins. Co. v. State Bd. of Tax Appeals, 307 U.S. 313, 59 S.Ct. 918, 83 L. Ed. 1312.
Since our statute was patterned after the federal income tax act, plaintiffs urge that it should be construed in accord with decisions of the Supreme Court of the United States current at the time of its enactment in 1931. The Supreme Court of the United States has changed its position twice in regard to the present issue, as shown by Justice Douglas in State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358. The Supreme Court, as early as Tappan v. Merchant's National Bank, 19 Wall. 490, 22 L.Ed. 189, in 1874, if not as far back as the opinion by Chief Justice Marshall in M'Culloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579, had "rejected the notion that there were constitutional objections to double taxation of intangibles by states which had command over them or their owner". The rule was later departed from in cases cited by plaintiffs similar to First Nat. Bank of Boston v. Maine, 284 U.S. 312, 52 S.Ct. 174, 76 L.Ed. 313, 77 A.L.R. 1401, holding under the rule of mobilia sequuntur personam that intangibles could not be taxed in more than one state. In the Tax Commission of Utah case, First Nat. Bank of Boston v. Maine was expressly overruled and the prior rule restored, to the effect that the taxation of intangibles in more than one state does not offend the constitution. Justice Douglas there said:
"* * * there is no constitutional rule of immunity from taxation of intangibles by more than one State. In case of shares of stock `jurisdiction to tax' is not restricted to the domiciliary State. Another State which has extended benefits or protection or which can demonstrate `the practical fact of its power' or sovereignty as respects the shares (Blackstone v. Miller, 188 U.S. [189] at page 205, 23 S.Ct. [277], at page 278, 47 L.Ed. 439, [444] may likewise constitutionally make its exaction. In other words, we restore these intangibles to the constitutional status which they occupied up to a few years ago." State *205 Tax Commission v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 1012, 86 L.Ed. 1358, at pages 1370-1371.
In concurring Justice Frankfurter said:
"The nullification of legislation on Constitutional grounds has been recognized from the beginning as a most `delicate' function not to be indulged in by this Court simply because it has formal power to do so but only when compelling considerations leave no other choice." 316 U.S. 174, 62 S.Ct. at page 1013, 86 L.Ed. at page 1372.
Thus it appears that at the time our income tax law was enacted, the position of the Supreme Court of the United States was unsettled.
Moreover, in 1933 the legislature so amended our statute and changed the character of the tax, as to render the rule of mobilia sequuntur personam no longer applicable to corporate franchise taxes. The 1931 act levied an excise tax upon the income of corporations. Session Laws 1931, (E.S) Chap. 2, pp. 32 and 33. Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307. The 1933 amendment made it a franchise tax upon "the privilege of carrying on and doing business within this state". Session Laws 1933, Chap. 159, p. 255 (§§ 63-3028, 63-3029, I.C.); Grange Mutual Life Co. v. State Tax Comm., 76 Idaho 303, 283 P.2d 187.
Under the 1931 act, the tax being an excise upon income, it could be urged that since the bonds were held outside the state, the income from them was not subject to the taxing power of the state, under the mobilia rule. The 1933 amendment transferred the incidence of the tax from income to the privilege of doing business in the state in the corporate form. The income or interest was no longer the subject of the tax. It became merely a standard or measure by which the tax on the privilege of doing business was determined. So it became relatively unimportant where the bonds were held, or where the interest thereon as such had its tax situs. The doctrine of mobilia sequuntur personam is not applicable in corporation franchise cases. Arkansas Fuel Oil Corp. v. Fontenot, 225 La. 166, 72 So.2d 465, 469 (appeal dismissed, 348 U.S. 804, 75 S.Ct. 46, 99 L.Ed. 635).
Kopp v. Baird, 79 Idaho ___, 313 P.2d 319, upon which plaintiffs rely, involved an excise tax levied upon income of an individual, not a corporate franchise tax. For that reason we held the doctrine applicable in the Kopp case.
In the Grange Mutual case, supra, we held that interest arising from tax exempt federal bonds could be included in the measure of the franchise tax because it was not a tax upon the exempt bonds or interest. The decision was based upon opinions of the Supreme Court of the United States, which that court has since reaffirmed. Werner Machine Co. v. Director of Div. of Tax., 350 U.S. 492, 76 S.Ct. 534, 100 L.Ed. 634.
Obviously the imposition of a franchise tax upon plaintiffs, measured by the number of their policyholders within the state, would not be a tax upon the policyholders. Likewise the tax in question, measured by the amount of interest arising in the state, is not a tax upon the interest. So assuming the bonds and interest have their tax situs at the domicil of the owner, that fact does not affect the validity of the tax on the privilege of doing business in the state, merely because the interest is a part of the measure of the tax. We expressly do not decide whether the interest has a tax situs in this state, because that question is not in issue. The statute requires only that the interest arise within the state. This requirement reasonably relates the tax to benefits conferred by the state, as appears from the agreed facts in this case. For this the state may ask a return. State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267, 130 A.L.R. 1229; Ott v. Miss. Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585; 84 C.J.S. Taxation § 134 e., pp. 270-271; Kennecott Copper Corp. v. State Tax Commission, 5 Utah 2d 306, 301 P.2d 562; Commonwealth v. Columbia Gas & Elec. Corp., 336 Pa. 209, *206 8 A.2d 404, 131 A.L.R. 927; Matson Navigation Company v. State Board of Equalization (Cal.) 297 U.S. 441, 56 S.Ct. 553, 80 L.Ed. 791; International Harvester Co. v. Wisconsin Dept. of Tax., 322 U.S. 435, 64 S.Ct. 1060, 88 L.Ed. 1373.
One of the amici curiae urges that ambiguous language of the statute should be so construed as to avoid socially undesirable or oppressive results, and that the construction contended for by the appellant would retard the economic development of the state. It may be agreed, where legislative language is ambiguous, and other rules of statutory construction do not control, the court should consider social and economic results. But we do not find the statutes involved to be ambiguous. In such case our duty is clear. We must follow the law as written. If it is socially or economically unsound, the power to correct it is legislative, not judicial. International Harvester Co. v. Wisconsin Dept. of Tax., supra; Lyons v. Bottolfsen, 61 Idaho 281, 101 P.2d 1; Wanke v. Ziebarth Const. Co., 69 Idaho 64, 202 P.2d 384; State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328.
The fact that a small portion of Idaho Power Company's revenue is derived from business and properties outside the state, is not made a point for decision. The act contemplates an apportionment and deduction of income and expenses from outside the state. §§ 63-3013(b) par. 7, 63-3002, subd. 1, 63-3019, subd. c, 63-3040, subd. a, I.C.
The judgments appealed from are reversed and the causes are remanded to the district court with directions to dismiss the actions.
Costs to appellant.
PORTER, SMITH and McQUADE, JJ., and NORRIS, D. J., concur.
KEETON, C. J., not participating.
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445 So.2d 221 (1984)
Lethel JOSHUA
v.
STATE of Mississippi.
No. 54511.
Supreme Court of Mississippi.
January 25, 1984.
Hermel Johnson, Jackson, for appellant.
Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
BOWLING, Justice, for the Court:
Appellant was tried and convicted in the Circuit Court of the Second Judicial District of Hinds County. As hereinafter discussed, we can only surmise with a reasonable degree of assurance regarding the crime for which he was indicted and convicted. The indictment was fatally defective, the error was fully preserved and we are mandated to reverse and remand the cause for proper indictment.
It is elemental that every person accused of a crime has the legal right to be informed properly of the charges under which he is to be tried. The cause grew out of a purported altercation that occurred on the night of July 31, 1981, near Utica, Mississippi, on Highway 18. According to the record appellant was driving a van owned and operated by him and occupied by three other persons. The vehicle was stopped by a member of the Mississippi Highway Patrol. The testimony is conflicting as to what occurred. We recite only that pertaining to the reason the cause is being reversed and remanded. The state's evidence was to the effect that appellant at one time struck the officer with his fist; there was a tussle or altercation on the edge of the roadway during which the officer's revolver fell from its holster; the appellant picked up the revolver. According to the patrolman, the revolver was pointed at him and a threat was made to shoot him. The officer fled from the scene. The testimony of the defense was that certain actions occurred at the scene but there was no effort to shoot the officer and no assault made on the officer.
We point out the above brief statement to emphasize that the state's evidence tended to show a number of overt acts committed by appellant.
*222 Appellant evidently was indicted under the terms of Mississippi Code Annotated, Section 97-3-7(2) (1974). This section provides penalties for "aggravated assault". It was passed into law under Chapter 458 of the Laws of 1974. Although the code section was not mentioned in the indictment, it is clear, as stated above, that the charge was intended to come within the provisions of the above numbered code section which provides as follows:
§ 97-3-7. Simple assault; aggravated assault.
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.
The indictment under which appellant was charged read as follows:
The Grand Jurors for the State of Mississippi, taken from the body of good and lawful persons of the Second Judicial District of Hinds County, in the State of Mississippi, elected, impaneled, sworn, and charged to inquire in and for said District, County and State aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: That Lethel Joshua a/k/a Josh in said District, County and State on the 31st day of July, A.D. 1981, did, with intent, wilfully, unlawfully and feloniously attempt to cause serious bodily injury to the body of Dennis Wayne Abel who was then and there a duly appointed and presently acting law enforcement officer, to-wit: a sworn officer of the Mississippi State Highway Patrol, being then and there engaged in the performance of said law enforcement officer's official duties, he/she the said Lethel Joshua a/k/a Josh then acting knowingly and recklessly under circumstances manifesting extreme indifference to the value of human life.
It is noted that the only charge in the indictment is that the appellant did "attempt to cause serious bodily injury... ." Prior to trial appellant filed a motion to quash the indictment alleging that it did not set out any overt acts allegedly committed by appellant in making his attempt or any other facts sufficient to inform appellant of the acts he did under his attempt to commit a crime.
In a number of cases we clearly have set forth the requisites of an indictment under a charge of an attempt to perform a criminal act. In Bucklew v. State, 206 So.2d 200 (Miss. 1968), we held that our statutory law requires proof of an overt act in order to sustain a conviction of an attempt to commit a crime. See also, Jackson v. State, 420 So.2d 1045 (Miss. 1982); Ford v. State, 218 So.2d 731 (Miss. 1969); State v. Burton, 145 Miss. 821, 111 So. 300 (1927); and Stapleton v. State, 130 Miss. 737, 95 So. 86 (1923).
In Burchfield v. State, 277 So.2d 623 (Miss. 1973), we stated as follows:
It has long been the law of this land that an accused person has a constitutional right to be informed of the nature and material elements of the accusation filed against him. All the authorities are to the effect that an indictment, to be sufficient upon which a conviction may stand, must set forth the constituent elements of a criminal offense. Each and every material fact and essential ingredient of the offense must be with precision and certainty set forth.
(277 So.2d at 625)
In Jackson, supra, we stated:
*223 If the offense is fully and clearly defined in the statute, an indictment in the language of the statute is sufficient; otherwise, the indictment should charge the offense by the use of additional words that clearly set forth every element necessary to constitute the crime.
(420 So.2d at 1046).
In Stapleton, supra, we stated:
The statute [intent statute] is of course in general terms, and while ordinarily an indictment may follow the language of the statute, this is not true where the statute does not define particular acts which make the offense, but leaves to the circumstance of the case the proof of one of many possible acts which would go to make up the offense.
(95 So. at 87).
In addition to our prior cases regarding the necessity of informing the accused in the indictment of the acts he is accused of doing that comprise the "attempt", we note rule 2.05 of the Mississippi Uniform Criminal Rules of Circuit Court Practice. This rule requires that the indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him." Referring to the quoted section under which appellant obviously was attempted to be indicted, the section merely states that "[A] person is guilty of aggravated assault, if he (a) attempts to cause serious bodily injury to another or causes such injury purposely, knowingly or recklessly under such circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ..." As stated at the outset, one of the several possible overt acts was testimony that at least during part of the time involved in the incident, appellant had the patrolman's gun in his hand pointed at the patrolman. In addition to this, there was testimony that prior to that time, the appellant struck the patrolman with his fists. He was in turn struck with the patrolman's flashlight and an altercation occurred prior to the time of the gun incident. The only weapon mentioned in the above code section is a "deadly weapon." The activities allegedly entered into by appellant and the patrolman included several activities other than pointing a deadly weapon. None of these, including a deadly weapon, were set out in the indictment.
As stated previously, appellant, prior to trial, filed his motion to quash the indictment. He did not file a demurrer under the provisions of MCA § 99-7-21 (1972). We have held, however, that a demurrer is necessary only when there is a formal defect in the indictment that can be amended and does not apply when the indictment defect is substantive. (Maxie v. State, 330 So.2d 277 (Miss. 1976)). Here in the case sub judice the Court was fully informed of the indictment's defect by appellant's motion to quash. We hold that the indictment was substantially defective in that it did not set out any alleged overt act whatsoever regarding appellant's attempt to cause bodily harm to the patrolman. Appellant, as hereinbefore discussed, was constitutionally entitled to be advised of the overt act or acts comprising his attempt. It is therefore necessary under the law that we reverse and remand the cause for proper indictment and trial thereunder.
REVERSED AND REMANDED.
PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2421
RAYMOND RIVERA MARQUEZ,
Plaintiff-Appellant,
v.
NORMAN Y. MINETA,
Secretary of Transportation,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 4970—George W. Lindberg, Judge.
____________
ARGUED AUGUST 2, 2005—DECIDED SEPTEMBER 12, 2005
____________
Before COFFEY, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Raymond Marquez, a 62-year-old
man from Puerto Rico, was terminated because of poor
performance after only seven months as an Aviation Safety
Inspector for the Federal Aviation Administration. He
sued the Department of Transportation (“DOT”) for age
discrimination under the Age Discrimination in Employ-
ment Act, 29 U.S.C. § 633a(c), and for race and national
origin discrimination under Title VII, 42 U.S.C. § 2000e et
seq. The district court granted the DOT’s motion for
summary judgment. Marquez filed a notice of appeal one
day late, but successfully moved the district court to extend
the time to appeal on grounds that he committed “excusable
2 No. 04-2421
neglect” by miscalculating the filing deadline. The district
court, however, abused its discretion in granting an exten-
sion, and we therefore dismiss the appeal for lack of
appellate jurisdiction.
Marquez was recruited and hired by Gerardo Martinez, a
supervisor also of Puerto Rican heritage at the O’Hare
Flight Standards District Office. Marquez’s primary trainer
was Donald Rigg, but after only two months of training he
had become frustrated with Marquez’s performance and
asked that someone else evaluate him. Rigg testified in an
affidavit that Marquez lacked both skill and integrity; was
computer illiterate; could not follow written instructions or
even fill out his time card; was disorganized; and could not
retain information whatsoever. Rigg became so frustrated
that he concluded he could never certify Marquez as a
qualified inspector. Rigg’s assessment was seconded by
senior inspector Sam Latorre, who opined that Marquez’s
training would take two years beyond the normal time to
train an inspector. Latorre added that Marquez was the
weakest trainee he had seen in his 11 years as senior
inspector, and that Marquez should never have been hired.
Three other inspectors whom Martinez assigned to train
Marquez all found him to be very slow at learning and
retaining information.
Martinez discussed Marquez’s poor job performance with
him, and when Marquez responded with a poorly written
letter, Martinez had Marquez enrolled in an “effective
writing” course. In May and June 2001, Marquez attended
training courses at the Aeronautical Center in Oklahoma
City, and returned the following month for more courses.
Marquez achieved barely passing scores, and Martinez
learned later from course instructors and co-workers that
Marquez had difficulty understanding instructions and
embarrassed himself by asking off-topic questions. By
September 2001 Martinez believed that Marquez had been
No. 04-2421 3
provided adequate time for evaluation, and terminated him.
Marquez then filed this discrimination suit.
On April 2, 2004, the district court granted summary
judgment for the DOT. For purposes of the indirect burden-
shifting method, the court determined that Marquez could
not show that he was satisfactorily performing his job;
during his training period he failed to achieve final certifi-
cation on any task and had difficulty retaining information
and understanding computers. And even if Marquez could
establish a prima facie case, the court added, he could not
show that Martinez did not honestly believe he should be
terminated for poor performance.
Marquez filed a notice of appeal on June 2, 2004, 61 days
after the district court’s entry of judgment—one day too late
under FED. R. APP. P. 4(a)(1)(B). We suspended briefing and
ordered Marquez to explain why his appeal should not be
dismissed for lack of jurisdiction. Marquez then filed a
motion with the district court, seeking a one-day extension
of time to file his notice of appeal on grounds of excusable
neglect—his own miscalculation of the filing deadline. The
district court granted the extension without explanation.
On July 2, 2004, we directed Marquez to explain why the
appeal should not be dismissed for lack of jurisdiction,
noting that his only reason for the tardiness was a “miscal-
culation of the time to appeal” and as such the district court
“may have abused its discretion in granting the motion.”
As a threshold matter, we must ascertain whether we
have appellate jurisdiction over this appeal. Marquez
argues that the district court properly exercised its discre-
tion in extending the time to file a notice of appeal because
the one-day delay caused no prejudice to the DOT.
Rule 4(a)(5)(A)(ii) of the Federal Rules of Appellate
Procedure permits a district court to extend the time for
filing a notice of appeal up to 30 days after the entry of
judgment upon a showing of good cause or excusable
4 No. 04-2421
neglect. The standard for reviewing whether neglect was
“excusable” is an “equitable” one, taking into consideration
all relevant circumstances including “the danger of preju-
dice [to the non-moving party], the length of the delay and
its potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in
good faith.” United States v. Brown, 133 F.3d 993, 996 (7th
Cir. 1998) (quoting Pioneer Investment Serv. Co. v. Bruns-
wick Assocs., 507 U.S. 380, 395 (1993)). But a “simple case
of miscalculation” regarding deadlines is not a sufficient
reason to extend time, United States v. Alvarez-Martinez,
286 F.3d 470, 473 (7th Cir. 2002), and judges do not have
“carte blanche” authority to allow untimely appeals, United
States v. Marbley, 81 F.3d 51, 52 (7th Cir. 1996).
The problem facing Marquez is that there is no basis in
the record for us to conclude that the untimely filing was
due to excusable neglect. Counsel conceded in his motion for
an extension of time that “due to miscalculation of the date,
plaintiff filed his Notice of Appeal with the clerk of the
District Court one day late,” but simple miscalculation is
not excusable neglect. See Alvarez-Martinez, 286 F.3d at
473. Even if the one-day extension did not cause prejudice
to the DOT, we doubt that “it can make a difference that no
harm to the appellee has been shown”; given the short
deadline under Rule 4, “[t]here is unlikely ever to be harm.”
Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th
Cir. 1996). Further, this is an employment discrimination
case, not a bankruptcy or criminal case in which the district
court has broad power to extend the filing deadline to avoid
unjust results; in those cases the consequences of missing
a deadline may include the loss of real property or personal
liberty. See Alvarez-Martinez, 286 F.3d at 473. The district
court here did not identify any excuse, and we see no
ground in the record on which the district court could have
granted the motion. This appeal must be dismissed based
on the absence of appellate jurisdiction.
No. 04-2421 5
We hasten to add that even if we had jurisdiction over
Marquez’s appeal, his case is meritless. The district court
correctly observed that Marquez’s severely deficient work
performance prevented him from establishing a prima facie
case of discrimination.
DISMISSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-05
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793 S.W.2d 386 (1990)
STATE of Missouri, Respondent,
v.
Lester V. COURTER, Appellant.
Lester V. COURTER, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 39606.
Missouri Court of Appeals, Western District.
May 22, 1990.
Motion for Rehearing and/or Transfer Denied July 3, 1990.
Application to Transfer Denied September 11, 1990.
*387 Melinda K. Pendergraph, Columbia, for appellant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P.J., and CLARK and BERREY, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 3, 1990.
CLARK, Judge.
Lester V. Courter was convicted by a jury of the offense of sodomy and he was sentenced to a term of fifteen years. He appeals that conviction and, concurrently, the order which denied his motion under Rule 29.15 for post-conviction relief. We reverse the conviction thereby rendering it unnecessary to consider issues raised in connection with the Rule 29.15 motion.
The charge against appellant was based on the allegations that at two or more times in 1986, appellant had fondled and stimulated the penis of then five or six year old Charles Bennett, referred to as appellant's grandson.[1] The abuses allegedly occurred when Charles was left with appellant by Paul and Vickie Shipley for overnight visits.
The direct evidence as to the offenses came from in-court testimony by Charles and from two videotaped interviews of Charles conducted before trial by a deputy juvenile officer. The video tapes were played for the jury, one before Charles testified in person, and one following his testimony. Appellant testified in his own defense and denied any improper conduct with Charles.
The dispositive issue on this appeal, raised by appellant in his first point of trial error, concerns testimony by Danny Shipley, another stepson of appellant, who was allowed by the court to testify, over appellant's objection, that in 1963 or 1964 when Danny was five or six years of age, appellant had forced sex on him and other children by placing his mouth on their genitals and by forcing them to fondle appellant's penis. Danny Shipley was twenty-nine years of age at the time of trial, some twenty-three or twenty-four years after the alleged events which were the subject of the witness's testimony.
Appellant was aware before trial of the state's intention to call Danny Shipley as a witness and also the prospect that the state would call other family members to testify that appellant had the reputation of a homosexual and that he had a "predisposition for little boys." Appellant filed a motion in limine to exclude this evidence as inadmissible because it constituted proof of crimes not charged against appellant, because the incidents with Danny, if they did occur, *388 were too remote to have probative value in the current prosecution and for various other reasons. The trial court overruled appellant's motion in limine and his objections to the testimony at trial and the evidence was admitted. The state contended at trial, and it reasserts here, that the evidence in question was admissible under the common scheme or plan exception to the rule precluding evidence of other uncharged crimes unrelated to the offense for which the defendant is being prosecuted.
There is, of course, no question that the testimony by Danny Shipley was highly prejudicial to appellant and, absent some recognized exception, it should have been excluded under the rule barring introduction of evidence of other crimes for which the defendant is not on trial. State v. Shaw, 636 S.W.2d 667, 671-72 (Mo.banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). The showing of prior sexual deviation is highly prejudicial to a person held to answer sexual charges and even where an objection to such evidence is sustained, a cautionary instruction by the judge is of dubious value in erasing the suggestion from the jury's mind. State v. Alexander, 729 S.W.2d 467, 470 (Mo.banc 1986) (Blackmar, J., dissenting).
The common scheme or plan exception to the rule barring evidence of uncharged offenses has a well defined origin and express limits, but a checkered history of application in appellate decisions. In State v. Lue, 598 S.W.2d 133, 137 (Mo.banc 1980), the court restated the traditional bounds of the exception: "Among the exceptions to this rule [denying use of evidence of other crimes by the accused] is that evidence of other crimes is competent when it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other." Crimes are not so related if not so blended or connected that the investigation of one involves an inquiry into the other. Id.
The more familiar application of the common scheme or plan exception occurs where a series of offenses are committed, one for the purpose of facilitating another. Thus, in State v. O'Neal, 618 S.W.2d 31 (Mo.1981), evidence that the defendant burglarized a residence and obtained a gun was held admissible where the purpose of the burglary was to obtain the weapon to use in a subsequent robbery and homicide for which the defendant was on trial.
A similar application of the common scheme or plan exception occurs where a series of crimes are so linked together in time and circumstances with the crime charged that one cannot be fully shown without proving the other. This was the situation in State v. Martin, 651 S.W.2d 645 (Mo.App.1983). There, the state was allowed to show, in a case of a contract murder, that the defendant had contemporaneously discussed with an intermediary engaging the third party to also steal an automobile. Evidence of the proposed auto theft showed a common plan among defendant, Wood, the intermediary, and Murphy, the third party, to engage in criminal conduct.
In contrast to the above examples which accurately reflect the sense of the common scheme or plan exception, a number of cases nominally admit evidence under the exception when in fact the purpose of the evidence is to show motive or to prove the identity of the accused. For example, in State v. Kenley, 693 S.W.2d 79 (Mo.banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986), the court approved, under the common scheme or plan exception, proof in a prosecution for capital murder that the defendant bought a gun, practiced using it, robbed business establishments and kidnapped women for sexual purposes. But, as the opinion states, the evidence was proper because it "evidences a common scheme or plan pointing to Defendant as the participant in the robbery which resulted in Felts' death." Id. at 82 (Emphasis supplied). As is apparent, evidence of Kenley's other crimes was admissible, not because components of a common scheme or plan, but because it tended to prove the identity of the defendant as the guilty party.
In State v. Mallett, 732 S.W.2d 527 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. *389 309, 98 L.Ed.2d 267 (1987), the defendant was charged with the murder of a highway patrol officer. One issue on appeal was the admission of evidence that in the month before the killing, Mallett had robbed a jewelry store in Texas. The court observed that evidence of uncharged crimes committed by the accused is admissible "when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime." Id. at 534. Proof of the earlier robbery was found to be admissible in Mallett, not under the common scheme or plan exception, but because it established the motive for the defendant's conduct in his attempt to evade capture by the officer.
It is appropriate to note that the common scheme or plan exception embraces not only crimes which are sequentially linked, but also to crimes which are committed in such a similar fashion that the inference follows they were the work of the same individual. These are the "modus operandi" type cases where identical methodology earmarks separate crimes as the handiwork of the accused because the acts bear a striking similarity. State v. Clay, 686 S.W.2d 516, 518 (Mo.App. 1985).
Returning now to the present case, no argument may be made that evidence of appellant's prior sexual misconduct was admissible to prove identity, to establish motive or that the events separated by more than two decades were so related to each other and so inseparably connected that proof of one necessarily involved proving the other. The purpose of the evidence was, quite apparently, to convince the jury that Courter had a propensity toward deviate sexual behavior and, if he had earlier performed such acts, it was more likely that the victim's account was true. In short, the contested evidence was offered to bolster the believability of the state's case.
Particularly in sex crime cases, the appellate decisions of this state lack any well defined limits to the use of evidence of other, similar criminal acts by the accused, perhaps in part because the variations in conduct are so great. Some general principles, however, are discernable. First, no case in Missouri has yet adopted a rule of admissibility, prevalent in some other states, and labeled the sexual aberration exception. Under this doctrine, evidence of any prior sexual misconduct in the nature of unconventional sex by the accused may be shown to establish that the accused possesses depraved sexual instincts. See discussion in State v. Taylor, 735 S.W.2d 412, 417 (Mo.App.1987). To admit such evidence in Missouri, the state must establish that evidence of prior sex crimes by the defendant is within one of the general exception categories, i.e., motive, intent, absence of mistake or accident, identity or common scheme or plan. It is not enough to simply argue that prior criminal acts demonstrate a propensity to repeat conduct.
Second, when the evidence of other crimes is conditionally admissible under one of the stated exceptions, it is to be allowed only when the prejudicial effect of the evidence is outweighed by its probative value, the balancing of effect and value to be within the sound discretion of the trial court. State v. Shaw, 636 S.W.2d at 672.
A review of numerous appellate decisions in this state where evidence of a prior sex offense has been held admissible in prosecution for a current crime indicates a disposition of liberality in forcing the facts to conform to the mold of the general exception categories, most frequently the common scheme or plan. Thus, for example, in State v. Kerr, 767 S.W.2d 344 (Mo.App. 1989), the defendant was charged with having committed sodomy upon a three and one-half year old girl by digital manipulation of her vagina. The state introduced evidence from defendant's estranged wife that some two years earlier she had observed her husband rubbing his penis with the hand of a small girl. The court approved the use of this evidence under the common scheme or plan exception despite the obvious facts that the events were significantly *390 separated in time and shared no elements of commonality except that the offenses involved the defendant and a young girl.
We exclude from criticism under this subject and classify separately those sex crimes in which the prior offense was perpetrated upon the same victim. The court pointed out in State v. Graham, 641 S.W.2d 102, 105 (Mo.banc 1982), that prior sexual intercourse or intimacy between the defendant and victim indicates a sexual desire for the victim and tends to establish motive. It may also be argued that where the same victim is involved in each event, a sufficient pattern or link exists to meet the conditions of the common scheme or plan exception. It is enough for the purpose of this opinion to say that this is not such a case and it is unnecessary to distinguish Graham and other like cases which have approved the admission of evidence of other uncharged sex crimes.
An additional factor which requires consideration in weighing the admissibility of other uncharged crimes evidence is the period of time separating the previous act or acts and the offense under current prosecution. In State v. Cutler, 499 S.W.2d 387 (Mo.1973), the charge was that the defendant had arranged to have her daughter perform certain lewd and indecent acts which were photographed. Over defendant's objection, the state was allowed to present evidence that some seven or eight years before, the defendant had received money from another daughter who posed for photographs by the same man. The conviction was reversed on the ground that remoteness precluded use of the evidence under the common scheme or plan exception.
The facts of Cutler were, but for the lapse of time between the events, well within the common scheme or plan exception utilized in numerous Missouri decisions to approve use of evidence of uncharged crimes. The defendant had obtained money from the same photographer in both instances, the same purpose to use young girls in lewd postures was the object and in each case, the defendant had procured her own daughters as subjects. Despite this, however, the case stands for the proposition that linkage to a common scheme or plan will cease upon passage of time between the events. Unfortunately, this feature has been overlooked in most if not all of the decisions since Cutler and has further clouded the issue of admissibility of questioned and prejudicial evidence in sex crimes cases.
Again returning to the subject case, we perceive no factual basis upon which the state may validly contend that the challenged evidence by Danny Shipley was admissible under the common scheme or plan exception. Apart from this, however, under Cutler, proof of events which occurred twenty-three or twenty-four years prior to the date of the current alleged offense are time barred under the remoteness doctrine. Evidence of aberrant sexual conduct between appellant and Danny Shipley was prejudicial to appellant, it was inadmissible under the common scheme or plan exception to the rule barring evidence of uncharged crimes and it also was too remote in point of time to be of probative value in the subject prosecution. The trial court erred in admitting the evidence over appellant's objection. The conviction must therefore be reversed.
Because this case is to be remanded and may be retried, it is necessary to consider an additional point of error raised by appellant. He argues that the court erred when it permitted the state to call the victim, Charles Bennett, as a witness at trial after first introducing before the jury the victim's videotaped statement.
The point is squarely ruled by State v. Seever, 733 S.W.2d 438 (Mo.banc 1987). Under § 492.304, RSMo 1986, a visual and aural recording of the statement by a child under the age of twelve who is alleged to be the victim of an offense under Chapters 565, 566 or 568 of the Missouri Statutes is admissible in evidence. The state, however, is limited to use of the video tape, if it elects to proceed with such evidence, and may not enhance or bolster the recorded statement by also calling the victim to testify at trial. Here, the evidence from the *391 video tape and from the witness stand were essentially duplicative and when presented in multiple form gave the state an undue advantage. We reject the state's argument that some dissimilarities between the video tape statement and the in-court testimony rendered both forms of evidence admissible. The live testimony by the victim served to elaborate upon the recorded statement and amounted to exactly the type of rehabilitation and bolstering which Seever condemns. On retrial a choice need be made as to which form the victim's direct testimony will take. This is, of course, subject to the defendant's opportunity to use available evidence and to any opening for use of statements which cross-examination may expose.
The conviction is reversed and the case is remanded for a new trial.
All concur.
NOTES
[1] Charles Bennett was not in fact related to appellant. Charles was the son born of a prior marriage of Vickie Shipley who had subsequently married appellant's stepson, Paul Shipley.
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<HTML>
<HEAD>
<META NAME="Generator" CONTENT="WordPerfect 9">
<META NAME="DATE" CONTENT="11/7/1996">
<TITLE>CV6-193 </TITLE>
</HEAD>
<BODY TEXT="#000000" LINK="#0000ff" VLINK="#551a8b" ALINK="#ff0000" BGCOLOR="#c0c0c0">
<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-96-00330-CV</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Scott Felder, Inc., Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Ohio Casualty Group of Insurance Companies and Henry A. Foradory, Sr.</CENTER>
</STRONG></P>
<P><STRONG><CENTER>d/b/a H & H Landscape, Appellees</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 94-03459, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG>PER CURIAM</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P> The parties have filed a joint motion to dismiss this appeal. The motion is granted. Tex.
R. App. P. 59(a)(1)(A).</P>
<P> The appeal is dismissed.</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Justices Powers, Aboussie and Jones</P>
<P>Dismissed on Joint Motion</P>
<P>Filed: November 13, 1996</P>
<P>Do Not Publish</P>
</BODY>
</HTML>
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December 31, 2004
Mr. Jorge C. Rangel
The Rangel Law Firm, P.C.
615 Upper N. Broadway, Suite 2020
Corpus Christi, TX 78403-2683
Mr. Francisco J. Rodriguez
Rodriguez Tovar & De Los Santos, LLP
1111 West Nolana
McAllen, TX 78504-3747
Mr. Neil E. Norquest
Norquest & Brisack, L.L.P.
4900 N. 10th Street, Bldg. A-2
McAllen, TX 78504-2830
RE: Case Number: 02-1182
Court of Appeals Number: 13-00-00275-CV
Trial Court Number: C-4118-94-B(2)
Style: HAGGAR APPAREL COMPANY
v.
MARIA O. LEAL
Dear Counsel:
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the
petition for review and without hearing oral argument, the Court reverses
the court of appeals' judgment and renders judgment. The Court delivered
the enclosed opinion and judgment.
Encl.
Sincerely,
[pic]
Andrew Weber, Clerk
by Nancy J. Vega, Chief Deputy Clerk
|cc:|Ms. Pauline G. |
| |Gonzalez |
| |Ms. Cathy Wilborn |
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268 S.C. 284 (1977)
233 S.E.2d 98
J. Lake HELLAMS, Appellant,
v.
Pauline ROSS, Respondent.
20370
Supreme Court of South Carolina.
March 1, 1977.
*285 Messrs. McAlister, Compton, and McAlister, of Laurens, for Appellant.
*286 Messrs. Younts, Spivey & Gross, of Fountain Inn, for Respondent.
March 1, 1977.
LEWIS, Chief Justice:
The issues involve the validity of the will of the late Marvin Robert Bass and, particularly, his testamentary capacity at the time he executed the instrument.
The testator died in Laurens County on March 9, 1975, leaving a will dated May 2, 1974, under which he devised all of his property to the Rabon Creek Baptist Church to the exclusion of his wife, the respondent herein. He had no children.
The respondent-widow objected to the probate of the will upon the grounds that the testator lacked testamentary capacity to make it and that it was the result of undue influence. The Probate Court subsequently overruled the attack upon the validity of the will and admitted it to probate. However, *287 upon appeal to the Circuit Court, a jury found that, while the deceased did not act under undue influence, he did not have sufficient mental capacity to make a will on May 2, 1974, the date upon which he signed the instrument offered for probate.
The executor (appellant) took the position at the trial that there was no evidence to sustain the conclusion that the deceased was mentally incompetent or acted under undue influence at the time of the execution of the will and, accordingly, moved for a directed verdict in favor of the will upon that ground. This motion was refused, as were the alternative post-trial motions for judgment notwithstanding the verdict and a new trial, the latter based upon alleged error in the admission of testimony. This appeal by the executor is from the denial of the foregoing motions. The charge that the lower court erred in denying the motions for a directed verdict and for judgment notwithstanding the verdict present the sole issue of whether there was any evidence to support the finding of the jury that the testator lacked mental capacity to make a will, the jury having found that the charge of undue influence had not been proved.
It is conceded that the will was properly executed. The charge of testamentary incapacity was based upon allegations that the excessive use of alcohol and drugs had affected the testator's mental faculties. The testimony showed that the testator had been a heavy consumer of alcoholic beverages for a number of years. In fact, it is inferable that his consumption of intoxicating beverages had reached a point that he was an habitual drunkard; but the testimony shows conclusively that the testator was not under the influence of intoxicants on the date of execution of the will. The issue then is whether there was any evidence from which a reasonable inference could be drawn that the testator's intemperance had so affected his mental faculties as to render him incompetent to make a will even though he was not actually intoxicated at the time he executed it.
*288 The burden of proof was upon respondent, as the contestant, to show a lack of mental capacity. This principle was more fully stated in Havird v. Schissell, 252 S.C. 404, 408, 166 S.E. (2d) 801, 803:
"It is the settled law of this state that when the formal execution of a will is admitted or proved, a prima facie case in favor of the will is made out, and that, as a general rule, the burden is then on the contestants to prove undue influence, incapacity or other basis of invalidation, and such burden remains upon the contestants throughout. In determining whether the contestants sustained such burden, the evidence has to be viewed in the light most favorable to the contestants."
The general principles governing the determination of testamentary capacity apply in cases where it is charged that the testator was affected by the use of alcohol or drugs. Therefore, the capacity of the testator to make a will is tested by whether he (1) knew his estate, (2) the objects of his affections, and (3) to whom he wished to give his property. Sumter Trust Company v. Holman, 134 S.C. 412, 132 S.E. 811.
Since intoxication is a temporary condition, even an habitual drunkard is presumed to be competent, when sober, to make a will; and the person, who asserts that the excessive use of intoxicants rendered a testator incompetent to make a valid will, must affirmatively show either (1) that at the time the will was made the testator's use of intoxicants had so impaired or deranged his mind that he lacked testamentary capacity even when he was not under the immediate influence of intoxicants or (2) that he was in fact incompetent due to intoxication existing at the time of the making and execution of the will. Annotation in 9 A.L.R. (3d) 15, 59, citing Black v. Ellis, 21 S.C.L. (3 Hill) 68; 79 Am. Jur. (2d), Wills, Section 112; 1 Page on Wills, Section 12.39.
*289 A careful review of the record convinces us that the evidence failed to show mental incapacity of the testator at the time the will was made. Although the testimony is undisputed that the testator was a heavy drinker and would sometimes, when on one of his frequent drinking sprees, fire his gun into the ceiling of the house and through the windows, there was no evidence of probative value that his drinking had produced a derangement of his mental faculties when he was not under the influence of intoxicants.
One of the witnesses to the will was dead, but the other two testified. One was the attorney who prepared and supervised the execution of the will and the other was the attorney's secretary. Both certified that the testator came to the attorney's office and requested that the will be prepared, giving directions as to the disposition to be made of his estate. These witnesses were positive in their testimony that the testator was sober, normal in his actions, and possessed of testamentary capacity when he signed the will.
We find no evidence of probative value to counter the positive testimony of the attesting witnesses that the testator was possessed of testamentary capacity when he signed the instrument. The lower court was therefore in error in refusing to grant apptllant's motion for a directed verdict.
Respondent argues, however, that the testimony of the lay or nonexpert witnesses, that testator was "unbalanced" and did not know "what he was doing" when he signed the will, presented a factual issue concerning the testator's mental competency and supports the jury's finding of incompetency. We disagree.
We follow the general rule which permits a nonexpert to "give his opinion concerning the mental condition of a testator when a proper foundation for such testimony is laid by proof of opportunity on his part to observe the testator and of the facts and circumstances upon which the opinion reasonably may be based." 79 Am. Jur. (2d), *290 Wills, Section 146, p. 380; Garbade v. Garbade, 260 S.C. 58, 194 S.E. (2d) 186.
The nonexpert or lay testimony in this case was merely a general conclusion that the testator was "unbalanced" and did not know "what he was doing" based, not upon his condition at the time of the execution of the will but mainly on the fact that he left the family no part of his estate. The witnesses were of the opinion that, if he had been in his right mind, the testator would not have left his property as he did.
The fact alone that the testator disposed of property contrary to what others usually consider fair is not sufficient to declare his will void. This principle is thus stated in Matheson v. Matheson, 125 S.C. 165, 171, 118 S.E. 312, 313: "The right to make a will carries with it the right to disregard what the world considers a fair disposition of property. In the case of Lee's Heirs v. Lee's Executors, 4 McCord 183, 17 Am. Dec. 722, we find: "That a will is unjust to one's relations is no legal reason that it should be considered an irrational act. The law puts no restrictions upon a man's right to dispose of his property in any way his partialities, or pride, or caprice may prompt him'."
There was also testimony that the testator bought two trailers for considerably more than they were worth; took the sink and some furniture from his home and put it in a rental house; and that about five (5) years before his death he expressed a belief that, if he gave his money to the church, he would go to Heaven. Respondent argues that the bad business deal, using articles from his home to fix rental property, and the belief that by giving his property to the church he would go to Heaven constituted some evidence that the testator was of unsound mind. The belief that the giving of his property to the church would, within itself, get him into Heaven might have been inaccurate but we are not prepared to say that it was evidence of an unsound mind. Neither does the bad business deal nor using his household articles to furnish *291 his rental property reach, under this record, probative value on the question of testamentary capacity.
The remaining question concerns the admissibility of the testimony relative to the statement by the testator that, if he gave his property to the church, he would go to Heaven. Since we have held that this testimony was, under this record, of no probative value on the issue of mental capacity to make a will, we need not determine whether because of its remoteness it was inadmissible.
The judgment is accordingly reversed and the cause remanded to the lower court for entry of judgment in favor of the validity of the will.
LITTLEJOHN, NESS, RHODES and GREGORY, JJ., concur.
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Digitally signed by
Reporter of Decisions
Illinois Official Reports Reason: I attest to the
accuracy and
integrity of this
document
Appellate Court Date: 2017.07.28
08:52:46 -05'00'
People v. Tucker, 2017 IL App (5th) 130576
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOE C. TUCKER, JR., Defendant-Appellant.
District & No. Fifth District
Docket No. 5-13-0576
Filed May 30, 2017
Decision Under Appeal from the Circuit Court of Jefferson County, No. 02-CF-212;
Review the Hon. David K. Overstreet, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and John M. McCarthy, of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
Douglas R. Hoffman, State’s Attorney, of Mt. Vernon (Patrick
Delfino, David J. Robinson, and Timothy J. Londrigan, of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Chapman and Barberis concurred in the judgment and
opinion.*
*
Justice Stewart was originally assigned to participate in this case. Justice Barberis was substituted
on the panel subsequent to Justice Stewart’s retirement and has read the briefs and listened to the
recording of oral argument.
OPINION
¶1 The defendant, Joe C. Tucker, Jr., filed a pro se petition pursuant to the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). Appointed counsel filed an amended
postconviction petition, alleging ineffective assistance of trial and appellate counsel. The State
filed a motion to dismiss the amended petition, and the motion was granted by the trial court.
The defendant filed a timely appeal, asserting that the trial court erred in dismissing his
amended petition without a third-stage evidentiary hearing when the defendant had alleged
sufficient facts to make a substantial showing that his constitutional rights had been violated.
For the reasons that follow, we reverse the order of dismissal and remand the matter for an
evidentiary hearing.
¶2 BACKGROUND
¶3 This appeal is taken from the circuit court’s decision to dismiss the defendant’s amended
postconviction petition at the second stage of postconviction proceedings. The facts of this
case are set forth in this court’s disposition of the defendant’s direct appeal. People v. Tucker,
No. 5-06-0484 (2011) (unpublished order under Supreme Court Rule 23). Accordingly, we
will restate only those facts relevant to our resolution of the issues raised in this appeal.
¶4 The evidence at trial established that on the morning of May 6, 1988, Jeff Reynolds, Jana’s
husband, returned home from his job on the night shift and found Jana lying on the bed covered
in blood. She had been stabbed multiple times. A thermal underwear bottom and gray panties
were hanging from her left ankle, and her thermal top had been pushed up. She was dead. Her
purse was on the living room floor, with its contents dumped out.
¶5 During the investigation, the police interviewed a number of individuals, including Albert
McDaniels and the defendant. Albert McDaniels went to the police station and voluntarily
gave samples of hair, pubic hair, saliva, and blood. A forensic technician compared small hair
fragments found on Jana’s bed sheet to McDaniels’ head and pubic hair standards, and
determined that there was no DNA match. The defendant also provided samples of hair from
his head. A forensic scientist compared the samples taken from the defendant’s head with the
hair fragments recovered from the crime scene. The forensic scientist testified that the
defendant’s hair sample did not match the hair fragments at the scene. The scientist further
stated that he did not have hair from the defendant’s other body parts to compare with the hair
fragments obtained from the crime scene, and because of that, the defendant could not be
excluded as a suspect. By December 1988, the police had followed more than 300 leads, but
the case remained open.
¶6 In August 2001, the Mount Vernon police department began to reexamine the physical
evidence found at the scene of Jana’s murder. Using an alternate light source that was not
available during the original investigation, a detective found previously undiscovered stains on
the thermal bottoms and panties Jana was wearing at the time of her death. Cellmark, a private
laboratory, determined that the stains on the thermal bottoms and panties were from seminal
fluid. Cellmark developed a DNA profile from the stains and found that the DNA profile was
from an unknown male source. The unknown DNA profile was compared to a DNA profile
from McDaniels, and it did not match. No physical evidence linking McDaniels to the inside of
Jana’s house was found.
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¶7 Cellmark also created a DNA profile of the defendant, using the hair samples he had
provided to the police in 1988. Cellmark found that the defendant’s DNA matched the stains
on Jana’s thermal bottoms and panties. Investigators obtained a current sample of the
defendant’s DNA. Cellmark tested that sample and confirmed that the DNA sequences were
the same. The defendant was arrested and subsequently charged with Jana’s murder.
¶8 In November 2002, the State’s Attorney telephoned police investigators and advised that
he had received a letter from a prisoner named Robin Gecht. In the letter, Gecht claimed to
have information about Jana’s death. Investigators interviewed Gecht, who stated that the
defendant had approached him to help prepare a defense for the defendant’s case. Gecht told
the defendant to write out his involvement with the case, and he wrote out four statements,
providing more details in each successive version. Subsequently, the police obtained the
statements from Gecht.
¶9 During trial, Robin Gecht testified that he had been convicted of aggravated battery,
aggravated kidnapping, rape, deviant sexual assault, and attempted murder. Gecht admitted
that he sent a letter to the State’s Attorney stating that he had information about Jana’s murder
and suggesting that they could work out an agreement helpful to all concerned. Gecht testified
that no one from the prosecution or law enforcement had offered him a deal in exchange for his
testimony. Gecht stated that the defendant admitted he entered Jana’s house with the intent of
raping her and burglarizing the home and that he killed her. Gecht testified that he asked the
defendant to write down what had occurred and that he asked the defendant to rewrite the
statement four times, including more details each time. Gecht stated that he helped the
defendant with one statement, constructing a theory of defense that his friend, McDaniels, had
killed Jana, while he observed. Gecht acknowledged that he had seen four pieces of discovery.
¶ 10 Gecht denied tricking the defendant into writing the statements. During cross-examination
by the defendant’s counsel, the following occurred:
“MR. BURKE [defense counsel]: Did you trick [the defendant] into writing these
statements?
GECHT: No, sir.
MR. BURKE: Do you remember talking with me and Kevin McClain back in
November?
GECHT: Yes, sir.
MR. BURKE: No other questions, Your Honor.”
¶ 11 Kevin McClain testified that he was a private investigator. Defense counsel asked McClain
if Gecht said that he had tricked the defendant into writing the signed statements. The State
objected on hearsay grounds because defense counsel had not asked Gecht any questions about
the content of his conversation with McClain. The court sustained the objection.
¶ 12 Albert McDaniels testified that on May 5 or 6, 1988, he was near Jana’s house because he
was going to rob the house next door. McDaniels stated that he walked by Jana’s house and
looked in the window. He asserted that he had difficulty remembering anything from that time
period. Defense counsel handed McDaniels a copy of a statement he had given to the police on
May 11, 1988. McDaniels was asked if that was his signature on the bottom of each page, and
he answered in the affirmative. When asked if it was his handwriting, he stated that he did not
write it. Defense counsel asked that the statement be allowed into evidence as a past
recollection recorded. The State objected on the ground that no foundation had been laid, and
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the trial court sustained the objection. Defense counsel continued asking McDaniels questions
about May 5 or 6, 1988, and he claimed not to remember. Defense counsel asked that
McDaniels be made a court’s witness. The State objected on the ground that he could not be
declared a hostile witness until he showed some hostility. The court stated that it would not
allow McDaniels to be questioned as a court’s witness because he had not shown any hostility.
Defense counsel then gave McDaniels a transcript from his testimony in July 1989, to refresh
his memory. McDaniels stated that reviewing his testimony only refreshed his memory
somewhat but that the prior testimony indicated that he and an individual named “T.C.” had a
discussion about robbing a “dope house.” McDaniels implied to T.C. that he and Jana had had
an affair. McDaniels told T.C. the best time to go to Jana’s house if he wanted to have sex with
her was between 11 p.m. and 7 a.m. because her husband would be at work. McDaniels denied
killing Jana.
¶ 13 Defense counsel requested again that McDaniels be declared a hostile witness. The State
objected on the ground that McDaniels was answering the questions. The court replied:
“Mr. Burke, you may—you may question this [witness] as if he’s being cross
examined. There’s a proper way that you need to ask someone questions; however, and
you’re not doing it the proper way. So you need to move on and do it the correct way.
But you may cross examine him at this time.”
¶ 14 McDaniels denied that he stopped by Jana’s house and looked in the living room window
while the defendant looked in the kitchen window. He also denied telling the defendant that
they could go into Jana’s house, have sex with her, and look for money for drugs.
¶ 15 Alva Busch testified that he had worked for the Illinois State Police as a crime scene
investigator for 24 years. In 2001, he retired and opened an agency that reviewed criminal
cases. Defense counsel showed Busch a crime scene drawing generated by the Illinois State
Police. Defense counsel told Busch that the defendant gave a statement that he looked in the
kitchen window and saw Jana lying on the couch. Defense counsel asked Busch to draw a line
from the kitchen window to the couch. The State objected on the ground that the drawing was
not to scale. Defense counsel argued that it was just demonstrative. The State argued that the
defense was trying to use a diagram that was not to scale to establish that it was impossible to
see Jana lying on the couch from the kitchen window. The trial court sustained the objection.
¶ 16 The defendant took the stand, and defense counsel asked him about his convictions for
aggravated battery and burglary. The defendant stated that one night while he was out, he went
to a gas station for a soda, but had no money. When he told the cashier that he planned to rob
him, the cashier laughed, and he threw the soda at the cashier.
¶ 17 The defendant testified that he and Jana worked together at a Wendy’s restaurant in 1982 or
1983 and that they began a sexual relationship in about 1983. He testified that on May 5, 1988,
he borrowed his sister’s car to go to Jana’s house. He parked about two blocks away and
walked to her house. He testified that as he approached her house, McDaniels stepped out from
beside it, claiming to have been just walking around. They both went to the door, and he
introduced McDaniels to Jana. They spent about 15 minutes talking in the living room. He
stated that he and Jana went into her bedroom and started to engage in sexual intercourse.
McDaniels came into the bedroom and asked if “it was a party,” and Jana said “no.” He stated
that McDaniels left the room and then returned, saying “Fuck this shit.” The defendant
testified, “I had already came at the time and I was getting up and then he just ran into the
bedroom and started grabbing on her, pulling on her.” The defendant pushed McDaniels off
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Jana. The defendant testified that McDaniels then pulled a knife, stabbed Jana, and threatened
to kill him. The defendant ran away. He claimed to have seen McDaniels later that morning,
and McDaniels threatened to kill him if he said anything. The defendant testified that he did
not say anything to the police because he was afraid.
¶ 18 The defendant testified that he met Gecht in prison. The defendant stated that he had
questions he wanted his attorney to ask some potential witnesses. Because his handwriting was
poor, he asked Gecht to type the questions for him. He testified that Gecht told him that he
could help with his defense. The defendant admitted writing the statements that the State
offered into evidence and said that he had written them for Gecht to help him with his defense.
The defendant testified that after he wrote the first statement, Gecht told him to write another
one with more detail. He stated that he wrote the statements because his attorney had told him
that the police knew that McDaniels was at the scene but could not place him in the house. He
testified that Gecht told him to write a statement putting himself in McDaniels’ place to show
the police how they missed McDaniels. He stated that in writing the statements, he took
everything he knew about the case, and everything he learned from discovery, and tried to
rebuild a crime scene.
¶ 19 The jury found the defendant guilty of all 10 counts of first degree murder. Following the
sentencing hearing, the trial court stated that the defendant would be sentenced on the most
serious charge, the offense of first degree murder in that he, without lawful justification and
with the intent to kill Jana, stabbed her with a sharp instrument, thereby causing her death, and
the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton
cruelty (count VI). The court then sentenced the defendant to natural life imprisonment on
count VI, and vacated the other convictions.
¶ 20 The defendant filed a motion to reconsider sentence and a motion for a new trial, both of
which were denied. As previously noted, the defendant’s conviction and sentence were
affirmed on appeal. People v. Tucker, No. 5-06-0484 (2011) (unpublished order under
Supreme Court Rule 23). The defendant then filed a pro se petition for relief from judgment
pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West
2010)). The circuit court sua sponte dismissed the petition, and the defendant appealed. This
court affirmed the dismissal. People v. Tucker, 2012 IL App (5th) 100190-U.
¶ 21 The defendant then filed a pro se postconviction petition. Appointed counsel filed an
amended postconviction petition alleging ineffective assistance of trial and appellate counsel.
The State filed a motion to dismiss the defendant’s postconviction petition, arguing that the
defendant failed to meet the Strickland standard for ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984). The court granted the State’s motion to
dismiss. This appeal followed.
¶ 22 ANALYSIS
¶ 23 On appeal, the defendant contends that the trial court erred in dismissing his postconviction
petition at the second stage of the proceedings. The defendant argues that the errors made by
trial counsel so permeated his trial that it is impossible to conclude that the allegations in the
amended petition, when liberally construed in light of the trial record, failed to make a
substantial showing of a constitutional violation.
¶ 24 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) provides a
process through which a defendant can assert that his conviction resulted from a substantial
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deprivation of his rights under the United States Constitution or the Illinois Constitution.
People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A postconviction petition is a collateral
attack on a prior conviction, the purpose of which is to allow inquiry into constitutional issues
related to the conviction or sentence that were not, and could not have been, determined on
direct appeal. People v. Barrow, 195 Ill. 2d 506, 519 (2001). Thus, issues that were raised and
decided on direct appeal are barred under the principle of res judicata, and issues that could
have been presented on direct appeal, but were not, are considered waived. Barrow, 195 Ill. 2d
at 519.
¶ 25 Postconviction proceedings may potentially proceed through three stages. People v.
Pendleton, 223 Ill. 2d 458, 471-72 (2006). At the first stage, the trial court may summarily
dismiss a petition if it finds that the petition is frivolous and patently without merit. Pendleton,
223 Ill. 2d at 472. At the second stage, counsel may be appointed for an indigent defendant.
Pendleton, 223 Ill. 2d at 472. Postconviction counsel’s obligations under Illinois Supreme
Court Rule 651(c) include (1) consulting with the defendant to ascertain his contentions of
deprivation of constitutional rights, (2) examining the record of the trial proceedings, and (3)
amending the petition, if necessary, to ensure that the defendant’s contentions are adequately
presented. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013); Pendleton, 223 Ill. 2d at 472. At the second
stage, it is the defendant’s burden to make a substantial showing of a constitutional violation,
and the State may move to dismiss the petition for failure to do so. Pendleton, 223 Ill. 2d at
472-73. In determining whether the defendant has made a substantial showing of a
constitutional violation, all well-pleaded facts in the petition not positively rebutted by the
record are to be taken as true. Pendleton, 223 Ill. 2d at 473. Where, as here, the trial court
dismisses the postconviction petition on the State’s motion, without an evidentiary hearing, the
trial court’s decision is reviewed de novo. Pendleton, 223 Ill. 2d at 473.
¶ 26 A defendant has a right to effective assistance of counsel under the United States
Constitution (U.S. Const., amend. VI) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8).
People v. Leeper, 317 Ill. App. 3d 475, 481 (2000). A defendant alleging a violation of his right
to effective assistance of counsel must generally meet the two-pronged test set out in
Strickland, 466 U.S. at 687. People v. Albanese, 104 Ill. 2d 504, 525-27 (1984). Under
Strickland, the defendant must allege facts demonstrating (1) that counsel’s performance fell
below an objective standard of reasonableness and (2) that counsel’s deficient performance so
prejudiced the defendant that he was denied a fair trial. Strickland, 466 U.S. at 687-88; People
v. Nowicki, 385 Ill. App. 3d 53, 81 (2008). In establishing substandard performance, the
defendant must overcome the strong presumption that his attorney’s actions were the product
of sound trial strategy and not incompetence. Nowicki, 385 Ill. App. 3d at 81. A defendant is
entitled to competent, not perfect, representation, and mistakes in trial strategy or judgment
will not, of themselves, render the representation ineffective. Nowicki, 385 Ill. App. 3d at 82.
In establishing the prejudice prong, the defendant must show that there is a reasonable
probability that, but for his attorney’s deficient performance, the result of the proceedings
would have been different. Barrow, 195 Ill. 2d at 520. A reasonable probability is one that
sufficiently undermines confidence in the outcome of the proceeding. Barrow, 195 Ill. 2d at
520.
¶ 27 To prevail on a claim of ineffective assistance, both prongs of Strickland must be satisfied.
Coleman, 183 Ill. 2d at 397. Thus, a court may resolve an ineffective assistance claim based
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upon only the prejudice component because a lack of prejudice renders irrelevant the issue of
counsel’s performance. Coleman, 183 Ill. 2d at 397-98.
¶ 28 On appeal, the defendant contends that his trial counsel’s errors so permeated every phase
of the trial that there can be no confidence in the jury’s verdict. Initially, the defendant notes
that the State’s evidence, particularly the DNA evidence and the defendant’s incriminating
written statements, led his counsel to pursue a three-part defense strategy: (1) the defendant
had been having an “on again off again affair” with Jana and that he had consensual sex with
her on the night of her murder; (2) the actual killer was Albert McDaniels; and (3) Gecht had
tricked the defendant into writing the incriminating statements. The defendant concedes that
his counsel successfully presented evidence that the defendant had consensual sex with Jana
through the defendant’s own trial testimony. The defendant asserts, however, that his counsel
failed to present evidence in support of the remaining theories of defense due to counsel’s lack
of understanding of basic rules of evidence, violations of pretrial rulings, and incompetence in
trial advocacy.
¶ 29 Specifically, the defendant alleges that his counsel (1) violated the court’s order granting a
motion in limine limiting the introduction of Gecht’s criminal history; (2) disregarded
evidentiary rules in describing the details of his prior conviction; (3) failed to lay a proper
foundation to impeach Gecht and establish that Gecht tricked him into writing the
incriminating statement; (4) failed to attempt to perfect impeachment of McDaniels with any
of McDaniels’ inconsistent statements; (5) failed to know the rules of evidence when
introducing a diagram; and (6) made an improper closing argument in which counsel focused
on his own performance, discussed an offensive interpretation of the evidence, and referenced
prejudicial information. The defendant asserts that the substandard performance left him
unable to present his theory of the case and prejudiced him to the point that he suffered a
constitutional deprivation of his right to counsel. The defendant also alleges ineffective
assistance of appellate counsel. We will consider each contention in turn.
¶ 30 Initially, the defendant argues that counsel’s lack of courtroom awareness was evident
during the pretrial hearing when counsel offended the trial court by suggesting that defense
motions were routinely denied when the State offered an objection and that the defense
motions were granted only when the State agreed to them. We note that this exchange between
counsel and the trial court occurred outside the presence of the jury and thus could not have
biased the jurors. People v. Young, 248 Ill. App. 3d 491, 502 (1993). The defendant has not
alleged or argued that the trial judge developed a bias against the defendant as a result of this
exchange. In fact, the defendant concedes that this instance alone would not be sufficient to
establish ineffective assistance of counsel. Instead, he contends that this conduct foreshadowed
counsel’s refusal to comply with pretrial orders and his lack of understanding of the rules of
evidence.
¶ 31 Next, the defendant asserts that his counsel violated an order in limine prohibiting the
defense from discussing the details of one of Robin Gecht’s criminal convictions. The
defendant notes that during opening statements, defense counsel told the jury that Gecht was
serving time for attempted murder and deviant sexual assault and then stated: “we’ll get into
the particulars of that deviant sexual assault.” The State objected that counsel’s comment
violated the order in limine, and the objection was sustained. During a sidebar, the trial court
admonished defense counsel that he could ask about Gecht’s prior conviction, but he could not
delve into the particulars of that case.
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¶ 32 A witness may be impeached on cross-examination with prior convictions, but the details
of the nature of the crime are irrelevant and prejudicial surplusage. People v. Arroyo, 339 Ill.
App. 3d 137, 151-52 (2003). In this case, defense counsel’s comment, during opening
statement, that he would reveal the details of Gecht’s deviant sexual assault conviction,
suggests that counsel either did not understand the order in limine or did not plan to abide by it.
In our view, this incident, standing by itself, does not satisfy the prejudice prong of Strickland.
In other words, the defendant cannot show that but for defense counsel’s comment, there is a
reasonable probability that the result of the trial would have been different.
¶ 33 The defendant also asserts that his counsel disregarded the evidentiary rule restricting the
admission of details underlying a prior conviction of a defendant. Prior to commencement of
opening statements, defense counsel had not yet received a ruling on a motion in limine, which
included a paragraph seeking to prohibit the State from referring to the defendant’s prior bad
acts and prior convictions. During a conference outside the presence of the jury, and just prior
to opening statements, the State indicated that it did not intend to refer to the defendant’s prior
convictions during opening statements because the motion had not yet been ruled upon. During
its opening statement, the State refrained from any comment on the defendant’s prior
convictions. Curiously, defense counsel, during his opening statement, proceeded to inform
the jury that the defendant had been convicted of a crime in Champaign. He stated that the
defendant
“was in a convenience store. He got a Coke out of the freezer or out of the refrigerator,
took it up to the counter, didn’t have any money. He told the guy behind the counter
that he was going to rob him. The guy behind the counter laughed. Joe hit him with the
Coke can, then the two guys in the store jumped over the counter, held Joe down until
the police got there. So Joe ended up with a felony conviction and went to prison.
While he was out of prison and on parole, these charges were brought up and so a
parole hold was put on him and he was put back in prison. While he was in prison,
that’s when he hooked up with Robin Gecht.”
¶ 34 The defendant later testified in his own defense. Responding to questions by his own
counsel, the defendant explained that he was arrested for a parole violation and subsequently
sent to prison at Menard, where he met Robin Gecht. The defendant asserts that defense
counsel’s errors during his opening statements, and during his questioning of the defendant,
unfairly prejudiced the defense because the jury was needlessly given some details of a prior
conviction, which included violence, and was permitted to speculate as to the extent of the
injury caused when the clerk was struck with the Coke can.
¶ 35 Our courts have voiced concerns that providing proof of an accused’s “penchant for
criminal behavior would control the decision-making process, resulting in convictions based
upon past guilt instead of current evidence.” People v. Fletcher, 335 Ill. App. 3d 447, 449
(2002). “While evidence of prior criminality cannot be admitted for the purpose of proving
criminal propensity, it is allowed to be used, on occasion, after an accused testifies.” Fletcher,
335 Ill. App. 3d at 449. Whether a prior conviction can be used against the defendant requires
a process of balancing its probative value as impeachment against the unfair prejudice it might
impose. People v. Montgomery, 47 Ill. 2d 510, 518-19 (1971). Simply put, the details of the
defendant’s actions as described by his counsel during opening statement would not have been
admissible under any interpretation of Montgomery, unless the defendant took the stand and
testified to same. In this case, the defendant admitted to being on parole and then returned to
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prison for the parole violation, but he did not provide details of the prior conviction during his
testimony. Thus, it was only the defendant’s attorney who described, in detail, the
circumstances that led to the defendant’s prior conviction in Champaign County.
¶ 36 Further, the defendant has questioned his counsel’s understanding of when the State can
properly introduce evidence of a defendant’s prior criminal history. Based on the record, it
seems that defense counsel was unaware of the limitations placed upon the admissibility of
prior criminal convictions under the Montgomery rule, and the trial court’s obligation to
perform a balancing test under circumstances as set forth herein, where the defendant testifies
and the State seeks to introduce prior convictions. Defense counsel made no objection to the
State’s motion to admit the defendant’s prior conviction for unlawful delivery of a controlled
substance, a crime that was unrelated to the facts of this case. Inasmuch as defense counsel
made no objection, the trial court did not perform any analysis, as required by Montgomery. In
some circumstances, counsel’s decision to inform a jury of a prior conviction shows
competence by attempting to blunt its impact with the jury, but the details of the nature of past
crimes are irrelevant and prejudicial surplusage. Arroyo, 339 Ill. App. 3d at 151-52. The
defendant contends that defense counsel either was unaware of or ignored the Montgomery
rule and that his counsel’s repeated introduction of the prejudicial details of the defendant’s
past criminal history before the jury constitutes ineffective assistance of counsel.
¶ 37 Judicial scrutiny of counsel’s performance is highly deferential, and there is a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. People v. Manning, 241 Ill. 2d 319, 334 (2011). It is the defendant’s burden to
overcome the presumption that, under the circumstances, counsel’s challenged action might be
considered trial strategy. Manning, 241 Ill. 2d at 334. “Reviewing courts should hesitate to
second-guess counsel’s strategic decisions, even where those decisions seem questionable.”
Manning, 241 Ill. 2d at 335. Given the record before us, we are unwilling to assume that
defense counsel’s decision to describe the details of the defendant’s aggravated battery
conviction, and to allow the defendant to testify regarding his past criminal activity, was sound
trial strategy. This information may have influenced the jury’s verdict. These allegations,
supported by the trial record, make a substantial showing that the defendant’s constitutional
rights may have been violated.
¶ 38 The defendant also argues that his counsel was ineffective in that he failed to lay a proper
foundation to impeach Gecht. The defendant asserts that his counsel erred during
cross-examination of Gecht because counsel stopped one question short of laying a proper
foundation to impeach Gecht’s testimony that he had not tricked the defendant into writing the
statements confessing to Jana’s murder. Defense counsel asked Gecht whether he remembered
speaking with defense counsel and McClain, the private investigator. Gecht responded in the
affirmative. Defense counsel then stated “No further questions.” Next, defense counsel called
McClain as a witness and asked him about his conversation with Gecht. Specifically counsel
asked McClain whether Gecht had admitted that he tricked the defendant into writing the
incriminating statements. The State objected on hearsay grounds, arguing that defense counsel
had not asked Gecht any questions about the content of his conversation with McClain. The
trial court sustained the objection. The defendant argues that defense counsel never asked the
court if he could recall Gecht to lay the proper foundation, even though the trickery was a
cornerstone of the defendant’s explanation in defense of the incriminating statements. The
defendant asserts that counsel’s failure to lay this foundation was unfairly prejudicial to his
-9-
defense because the defendant was unable to present testimony from his witness, McClain, to
corroborate the defendant’s testimony that he was tricked by Gecht into writing incriminating
statements. Without this testimony, the defendant argues that the jury was left to determine
whether the defendant or Gecht was more credible on this issue.
¶ 39 The record at trial shows that both Gecht and the defendant had credibility issues. Gecht
had been impeached by his criminal record. And while Gecht did not receive a deal in
exchange for his testimony, he readily admitted that he wrote to the State’s Attorney, claiming
to have information about Jana’s murder in hopes of working out some agreement that would
be helpful to “all concerned.” Gecht testified that the defendant told him that he had entered
Jana’s house with the intent of raping her and burglarizing her house and that he had killed her.
During cross-examination by defense counsel, Gecht denied that he had tricked the defendant
into writing the statements. But defense counsel failed to take the extra steps necessary to lay
the ground work for impeaching Gecht with McClain’s testimony. Inasmuch as the
defendant’s claim of deception in the authoring of the incriminating statements was a key
component to the defendant’s trial strategy, we are not willing to assume that defense counsel’s
failure to lay the groundwork for the impeachment of Gecht was sound trial strategy. The
testimony of McClain may have influenced the jury’s verdict. The defendant’s allegations,
supported by the trial record, make a substantial showing that the defendant’s constitutional
rights may have been violated.
¶ 40 The defendant argues that defense counsel was ineffective because he never tried to perfect
his impeachment of McDaniels with any of McDaniels’ inconsistent statements, even though
McDaniels’ testimony was replete with instances where he claimed not to remember and
where he denied things he had said in previous statements. The defendant argues that getting
McDaniels’ prior inconsistent statements into evidence was critical to his defense because the
police had identified McDaniels as the alternate suspect, and the jury deserved to have a full
understanding of McDaniels’ viability as the perpetrator of the murder. He further asserts that,
after watching defense counsel struggle to lay a proper foundation to introduce McDaniels’
prior inconsistent statements, the trial court allowed counsel to question McDaniels as a hostile
witness, even though he showed no hostility, highlighting counsel’s lack of knowledge of the
rules of evidence.
¶ 41 The trial record shows that defense counsel was able to establish that McDaniels was
serving time in prison for armed robbery at the time he testified. After defense counsel failed to
lay the foundation to admit McDaniels’ May 11, 1988, statement to the police as a past
recollection recorded, he attempted to use that document to refresh McDaniels’ memory.
McDaniels reviewed the statement but stated that it did not really refresh his memory. Defense
counsel then asked McDaniels if he remembered giving sworn testimony in July 1989, and
McDaniels stated that he did not remember. McDaniels was asked if he remembered saying he
was at Jana’s house on the night of the murder. He replied that he could not remember if he said
he was at her house but he did recall saying he was near the house, because he was going to rob
the house next door. McDaniels denied stopping at Jana’s house while heading to rob the house
next door. He testified that he cut through Jana’s yard and looked in the window as he passed.
Defense counsel handed him three pages from the transcript of his July 1989 testimony. He
read them and stated that they refreshed his memory somewhat. Defense counsel asked him if
he discussed robbing the house with T.C., and he stated that he did. Defense counsel asked
McDaniels if he knew Jana, and he said no. Defense counsel handed McDaniels pages from his
- 10 -
July 1989 testimony to refresh his memory. McDaniels stated that it did not really refresh his
memory but, if that is what he said, “then that’s about as close that it get[s] to what really
happened back then.” He was asked if he had been to a party at Jana’s house, and he said not
that he remembered. He admitted testifying to having been at a party at her house and that he
had implied to T.C. that he and Jana had had an affair. He testified that he no longer
remembered, but at the time of his July 1989 testimony, he stated that he had told T.C. that the
best time to go to Jana’s house to have sex was between 11 p.m. and 7 a.m. because her
husband would be at work.
¶ 42 McDaniels also testified that he voluntarily cooperated with the police when they asked for
blood, hair, saliva, and the clothes he was wearing on the night of the murder. He stated that
every time the police asked if they would find his DNA in the house, he stated they would not.
McDaniels reviewed his testimony from July 1989 and admitted that he had testified that he
knew Jana slightly through a friend who may have worked with her and that he had been to her
house once for a small party, with just a few people. He said he was introduced to her, but did
not speak with her. He stated that any implications that he was having an affair with her were
false. He denied killing Jana, denied that he was in the house at any time on the night she was
killed, and denied that he had any contact with her other than at the small party.
¶ 43 Based upon the testimony in the trial record, it appears that defense counsel was able to
impeach McDaniels with prior inconsistent statements. McDaniels had difficulty remembering
statements he had made to the police years earlier. Defense counsel asked McDaniels to verify
if he had made the statements, and defense counsel was then able to either refresh McDaniels’
memory with his prior statements or was allowed to read from the statements. Defense counsel
was also allowed to question McDaniels as a hostile witness and was thus allowed to ask
leading questions through cross-examination. The record establishes that defense counsel was
able to introduce the defense theory that McDaniels was the perpetrator of the crime.
McDaniels admitted that he was near Jana’s house and looked in the window. He admitted to
being in the area to rob the house next door. He admitted that he made a statement to the police
allowing a friend to believe that he had an affair with Jana and that he had told his friend that
the best time to have sex with Jana would be between 11 p.m. and 7 a.m. when her husband
was at work. He admitted that he had lied to his friend about having an affair with Jana. While
he denied knowing Jana, he admitted that he had told police that he had been at a small party at
her house. He also admitted that statements he had made earlier to the police would have been
more accurate. He stated that it was possible that he had told the police some things in May
1988 that were not completely true.
¶ 44 Impeachment is not evidence. People v. Douglas, 2011 IL App (1st) 093188, ¶ 47.
Impeachment simply challenges the credibility of the witness, and ultimately, it falls to the
trier of fact to determine whether that challenge was successful. Douglas, 2011 IL App (1st)
093188, ¶ 47. “[A] court of review will not upset a verdict by a jury on the possibility, not
probability, that with a little bit more impeachment, the witness would have been found totally
incredible.” Douglas, 2011 IL App (1st) 093188, ¶ 47. Defense counsel was able to show that
McDaniels made inconsistent statements, and the question of credibility was left to the jury to
determine who was more credible—the defendant or McDaniels. Accordingly, the defendant
has failed to make a substantial showing that his defense was unfairly prejudiced by his
counsel’s failure to properly impeach McDaniels.
- 11 -
¶ 45 The defendant next argues that defense counsel was ineffective for failing to know the
rules of evidence when introducing a diagram to establish line of sight. Defense counsel hired
an expert witness, Alva Busch, to recreate the crime scene. Defense counsel attempted to elicit
testimony from Busch that it was impossible to see Jana lying on the couch, from the kitchen
window, as testified to by McDaniels. Defense counsel also attempted to elicit testimony from
Busch that the defendant could not have seen Jana lying on the couch from the kitchen window
as the defendant claimed in his statement. The defendant argues that defense counsel failed to
properly prepare a diagram for use as substantive evidence and that counsel’s error prevented
him from offering substantive evidence to support his theory that McDaniels was in the
victim’s house on the night she was murdered.
¶ 46 In this case, defense counsel retained a well-qualified expert, who had years of experience
with the Illinois State Police as a crime scene investigator, to offer testimony to support the
defense theory that McDaniels had to have been in the house to know that Jana was lying on
the couch. Inexplicably, counsel failed to properly prepare a diagram of the house and yard,
including sight lines, so that this evidence could be introduced through the testimony of Busch.
The defendant contends that, as a result of counsel’s error, he was deprived of critical evidence
that supported his theory that McDaniels was the perpetrator of the crime. The defendant’s
allegation, supported by the trial record, is sufficient to make a substantial showing that his
constitutional rights may have been violated.
¶ 47 In this case, the allegations in the defendant’s petition, and the supporting record, regarding
counsel’s inability to introduce this evidence and counsel’s other errors, make a substantial
showing that counsel’s representation was deficient and that counsel’s deficient performance
may have resulted in unfair prejudice.
¶ 48 Next, the defendant contends that by the end of the trial, even defense counsel recognized
his performance was deficient. Defendant notes that counsel began his closing argument with
the words, “Not guilty. Joe Tucker is innocent of killing Jana Reynolds. Albert McDaniels
killed Jana Reynolds.” The defendant suggests that these words are important because they
support his contention that the trial strategy to be used in his defense was to show that
McDaniels killed Jana.
¶ 49 Shortly thereafter, defense counsel offered the following description of his legal
performance:
“Years ago I tried being a—a trial lawyer for a while. And my memory I was pretty
good at it. Last Monday put the light to that. I was so nervous last Monday and I’m
nervous now but not like last Monday. Last Monday I was so nervous I couldn’t hardly
speak.
I retired, if you will, from being a trial lawyer and I—and I became more what you
might have a research lawyer and that’s how I end up learning so much about DNA.
I’m a DNA guy.
When I agreed to help [the defendant] on this case, I thought it was a DNA case and
it turned out it wasn’t. So here I am. I might have said during voir dire about how I’ve
been on a jury before. It was a criminal case down in Benton in Federal Court. For as
tough as it is on this side of the railing—(Physical indication)—to me it’s a whole lot
tougher over on this side of the railing. (Physical indication).
- 12 -
In that case it was obvious to all of us on the jury that one lawyer was better than the
other. When we got back to the jury room nobody even mentioned it. When we got
back to the jury room we started to look at the evidence. I think that you guys are going
to do the same thing; but, if there’s any doubt, please don’t judge this case on who has
the better lawyer. That wouldn’t be fair because [the defendant is] going to lose on that
ground.”
Defense counsel’s admission to the jury that he may not have been as good a lawyer for the
defendant as the attorney representing the State is somewhat confounding. It is conceivable
that a lawyer may try to endear himself or herself to the jury as a matter of trial strategy, but the
extended admission did not end with defense counsel’s request that the jury treat the defendant
fairly. Instead, defense counsel revisited it later in his argument, telling the jurors:
“And, by the way, I have—I have decided that I’m going to re-retire from being a trial
lawyer. I—I find it just too stressful. But while Albert McDaniels was on the stand last
Friday, I wanted to quit that day. I wanted to quit that morning. I wanted to quit being
[the defendant’s] lawyer. I wanted to quit my job. I wanted to turn in my law license.”
When the State objected to this argument, the judge asked defense counsel to “move on.”
¶ 50 The defendant also directs us to that portion of defense counsel’s argument about a wet
spot found on the murder victim’s bed. Defense counsel, in describing this spot, used a
somewhat bizarre example. He explained to the jury:
“But let’s talk about the wet spot. Okay. And I’ll give you my example of that. When I
was married, my wife had a bird. It was some kind of little parrot and we always
thought it was a female. You can’t really tell with birds until we gave it a little fuzzy
bear that was about it’s [sic] own size. And then it turned out that it—it was actually a
male bird. And my wife asked me to clean it up and I asked her why am I the expert on
the wet spot? Just because there’s semen on thermal underwear, if somebody moves,
the semen doesn’t leak off the thermal underwear.”
It is unclear, based upon the trial record, what point defense counsel was attempting to make
with this example.
¶ 51 When talking about McDaniels’ testimony that he knew Jana from a party, defense counsel
asked the jury:
“Did Albert ever have sex with Jana? We don’t know. Only Albert knows.
There’s—that’s—this is the thing, you can’t—you can’t prove or disprove an affair, I
mean, like—I know with—with—with President Clinton, he was impeached after they
found some of his DNA.”
Again, the State objected, and the court sustained the objection, telling defense counsel to
“move on.”
¶ 52 The defendant notes that at one point during closing argument, defense counsel
intentionally raised the possibility that the defendant’s family may have been involved in an
unsolved murder. Defense counsel referred to one of the letters the defendant maintains were
written at the request of Gecht, and tells the jury:
“Back to this letter. Okay. You guys are getting this letter. I asked that it be put in
evidence. One thing he says right at the very beginning, I think I have some information
about an unsolved murder that Tucker’s family took part in. Back in 1991, a guy named
Lamont and—”
- 13 -
¶ 53 Before defense counsel could finish, the State objected. The court sustained the objection
and instructed the jury to disregard counsel’s statement. The court gave a further instruction,
telling the jury that what an attorney says in closing argument is not evidence. The defendant
claims he was further prejudiced when his counsel allowed the entire Gecht letter, which
contained allegations that the defendant’s family killed someone in 1991 named Lamont, to go
back to the jury room during deliberations. After reviewing the record, it appears that the
State’s objection to defense counsel’s statements was made to protect the defendant from
potential prejudice. We note that after the jury retired to deliberate, the State questioned
whether defense counsel wanted the letter to go to the jury, and defense counsel reiterated he
wanted the entire letter to go back to the jury. The letter did not advance the defendant’s cause,
nor did it test the prosecution’s case. Rather, the implication from the letter was that the
defendant may have been inclined to commit murder because of his familial upbringing.
¶ 54 We recognize that counsel is given great latitude in his or her closing argument to the jury.
Leeper, 317 Ill. App. 3d at 484. To show ineffectiveness as a result of comments made during
closing argument, the defendant must overcome the strong presumption that his counsel was
not incompetent and that his actions were a part of sound trial strategy. People v. Davis, 356 Ill.
App. 3d 725, 730 (2005). A reviewing court evaluates the reasonableness of counsel’s conduct
from his perspective in light of the totality of the circumstances in the case. Davis, 356 Ill. App.
3d at 730; People v. Daniels, 331 Ill. App. 3d 380, 393 (2002). Even when defense counsel
concedes the defendant’s guilt during closing argument, the court will not presume prejudice
unless the strategy amounted to a complete failure to subject the prosecution’s case to
meaningful adversarial testing. People v. Milton, 354 Ill. App. 3d 283, 290 (2004). In essence,
counsel’s choice does not constitute ineffective assistance of counsel simply because it was
unsuccessful. Milton, 354 Ill. App. 3d at 290.
¶ 55 During closing argument, defense counsel’s conduct was unprofessional, at best. Again,
we are not willing to assume that counsel’s argument was part of some unconventional defense
strategy and that counsel’s conduct had no impact on the jury.
¶ 56 In his postconviction petition and in this appeal, the defendant has argued that defense
counsel’s errors permeated every stage of his trial. He asserts that he is entitled to a third-stage
evidentiary hearing because, through cumulative error, he has demonstrated a substantial
showing of a constitutional violation. We agree. At this stage of the proceedings, the test is not
whether the defendant had established actual prejudice under Strickland. Rather, the analysis
focuses on whether the allegations in the petition and supporting documents make a substantial
showing that a constitutional violation occurred. In our view, the numerous errors outlined
above entitle the defendant to a third-stage evidentiary hearing.
¶ 57 Criminal defense attorneys must assist clients in a way that the constitutional guarantee of
“assistance of counsel” contemplates. The constitution contemplates assistance that engages
evidentiary rules to shield an accused from a decision based upon unreliable evidence. People
v. Moore, 279 Ill. App. 3d 152, 159 (1996). It contemplates assistance that appreciates and
understands legal principles applicable to the case. People v. Faulkner, 292 Ill. App. 3d 391,
394 (1997). “It contemplates assistance ready to provide an adversarial check to a prosecutor’s
excessive endeavors.” Fletcher, 335 Ill. App. 3d at 453. Accordingly, on the record before us,
the defendant has made a substantial showing that his trial counsel’s representation was
substandard and that counsel’s deficient performance may have had an effect on the outcome
of the proceedings.
- 14 -
¶ 58 In his final point, the defendant alleges that he was deprived of effective assistance of
appellate counsel because his appellate attorney failed to raise trial counsel’s numerous errors
in his direct appeal. Because we are remanding this case to the trial court for an evidentiary
hearing on many of the defendant’s claims of ineffective assistance of trial counsel, we are
unable to determine whether appellate counsel was ineffective for failing to raise ineffective
assistance of trial counsel claims. Unless the underlying issues are meritorious, the defendant
has suffered no prejudice from counsel’s failure to raise those issues on appeal. People v.
Foster, 168 Ill. 2d 465, 474 (1995). The defendant shall be allowed to present his claims of
ineffective assistance of counsel at the third-stage evidentiary hearing, including his claims of
ineffective assistance of appellate counsel.
¶ 59 CONCLUSION
¶ 60 For the reasons stated, we reverse the judgment of the circuit court dismissing the
defendant’s postconviction petition without an evidentiary hearing, and we remand this cause
of action for a third-stage evidentiary hearing.
¶ 61 Reversed and remanded with directions.
- 15 -
| {
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} |
248 F.2d 348
NATIONAL LABOR RELATIONS BOARD, Petitioner and Respondent,v.TECHNICOLOR MOTION PICTURE CORPORATION and Local 683 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, A.F.L.-C.I.O., Respondents and Cross-Petitioners.
No. 15297.
United States Court of Appeals Ninth Circuit.
September 24, 1957.
Kenneth C. McGuiness, General Counsel, Stephen Leonard, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Owsley Vose, Frederick U. Reel, Attorneys, N. L. R. B., Washington, D. C., for petitioner.
Cohen & Roth, Beverly Hills, Cal., Gilbert, Nissen & Irvin, Robert W. Gilbert, Los Angeles, Cal., for respondent.
Edward J. Hickey, Jr., Washington, D. C., for amicus curiae, Railway Labor Executive's Ass'n.
Before HEALY, BARNES and HAMLEY, Circuit Judges.
BARNES, Circuit Judge.
1
The National Labor Relations Board, acting pursuant to Section 10(e) of the National Labor Relations Act, as amended,1 seeks a decree enforcing its Order issued against Respondents Technicolor Motion Picture Corporation and Local 683 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, A.F.L.-C.I.O., (hereinafter referred to respectively as "the Company" and "the Union"), following a finding of unfair labor practices committed by them. The named Respondents cross-petition to have the Order set aside.
2
The petition and cross-petition raise an important and apparently novel question concerning the construction of (1) the first proviso to Section 8(a) (3) of the Act, which authorizes an employer and a labor organization to enter into a collective bargaining agreement, one of the terms of which may be "to require as a condition of employment membership (in the union) on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later," provided certain prerequisites are met;2 and (2) an agreement executed thereunder. The question is whether or not an employee's belated tender of a delinquent union initiation fee, made prior to actual discharge, renders unlawful a subsequent discharge based upon non-compliance with the time provisions of an admittedly valid union security agreement.
3
The formal pleadings and a stipulation of material facts, including two exhibits, comprise the entire record in the instant case.3 The stipulation discloses that on or about July 31, 1954, the Company and the Union executed a valid union security contract requiring inter alia that all persons then in the Company's employ subject to the agreement become and remain union members on and after the thirtieth day following the effective date of the agreement (which was the date of execution) and that within "a reasonable time, but not to exceed 3 days, after receipt of written notice from the Union that any such employee is not a member as above required," the Company "shall discharge any such employee." Hayden Balthrope, an employee of the Company, did not apply for membership in the Union nor tender his initiation fees during the thirty day grace period, although he was apprised of the union security provisions of the agreement shortly after its execution. Consequently, on August 31, 1954, the Union, in accordance with the terms of the agreement, made a lawful written demand on the Company calling for Balthrope's discharge within three days thereafter. No action was taken on this demand. The Union repeated its demand on October 1, 1954, and subsequently made numerous oral demands for Balthrope's discharge until some unspecified date in January of 1955. All of these demands went unheeded. The stipulation states that the Company's failure to accede to these demands was based on "unexplained" reasons. No further enlightenment is shed on this point by the record. Meanwhile, on December 7, 1954, after steadfastly refusing to do so for over four months, Balthrope applied for Union membership and tendered a check in the amount of $250.00, the established initiation fee uniformly required of all prospective members and the only sum requested by the Union. On or about January 27, 1954, Balthrope informed the Company of the action he had taken.4 His application for membership was conditionally approved by the Executive Board of the Union on February 7, 1955. Three days later, February 10, 1955, the Company discharged him. The stipulation is silent as to whether the Company knew of the Union's acceptance of Balthrope's initiation fee when it discharged him. That very same day and after it was notified of Balthrope's discharge, the Union wrote him that its Executive Board had conditionally approved his application for membership and that it had arranged employment for him at a comparable wage rate with another employer in the same industry.
4
Upon a charge lodged by Balthrope based on the foregoing facts, the General Counsel of the Board issued a consolidated complaint against the Union and the Company alleging that the Union by causing the Company to discharge Balthrope after he had paid his initiation fee violated sections 8(b) (1) (A) and 8(b) (2) of the Act and that the Company by yielding to the Union's demand violated sections 8(a) (1) and 8(a) (3) of the Act.5 A hearing was held before a trial examiner on the stipulated facts. The Trial Examiner then filed an exhaustive Intermediate Report concluding that there was no violation of the Act by either the Company or the Union and recommending that the consolidated complaint be dismissed. The Board, by a three to two vote, reversed the Trial Examiner's ultimate findings and sustained all of the charges contained in the consolidated complaint.6 It ordered the Respondents to cease and desist from the unfair labor practices, effectuate Balthrope's reinstatement with back pay and post specified notices regarding their future conduct.
5
In reaching their decision the Board's majority relied without discussion on the broad doctrine promulgated by the Board in the Aluminum Workers case.7 That case, involving an employee purportedly delinquent in the payment of her periodic union dues, held that "* * * a full and unqualified tender made any time prior to actual discharge, and without regard as to when the request for discharge was made, is a proper tender and a subsequent discharge based upon the request is unlawful." The two dissenting Board members, like the Trial Examiner, felt the Aluminum Workers doctrine was inapplicable to a case involving an initiation fee because of the different treatment accorded initiation fees and periodic dues in the Act and certain fundamental distinctions between them with respect to an employee's obligations to a union.
6
Our initial concern is, of course, with the germane provisions of the Act and, for purposes of clarity, we deem it desirable to set forth those subsections at the outset of our discussion. The first proviso to § 8(a) (3), which sanctions union security agreements, has been noted already. § 8(a) (1) (relating to the employer) and § 8(b) (1) (A) (relating to the union) make it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 7;" which include "the right to refrain" from union activities "except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3)." Further, § 8(a) (3), made applicable to unions by § 8(b) (2), prohibits an employer from "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization" except as provided in the succeeding proviso authorizing union security agreements. Even under such a union security agreement any discrimination based on non-membership is strictly limited. An employee need only tender his initiation fee and periodic dues to avoid discriminatory action including, of course, discharge. This is made clear by the second proviso to § 8(a) (3) that under a union security agreement an employer cannot justify discrimination against an employee for non-membership in the union if he has reasonable grounds for believing that such membership "was not available to the employee on the same terms and conditions generally applicable to other members, or * * * was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Likewise, a union is forbidden by § 8(b) (2), "To cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership."
7
We understand the Board's position to be that the above statutory provisions embody Congressional recognition of the problem of so-called "free riders;" (i. e., those employees who enjoy the benefits of union representation under union agreements without contributing to the financial support of the union by paying initiation fees and periodic dues), and authorization to deal with this problem by permitting unions operating under such agreements to cause the discharge of those employees who are "free riders;" that Balthrope was such a "free rider" after the expiration of the thirty day grace period; that under the Act and the collective bargaining agreement the power was vested in the Union to cause, and the Company to effect, a lawful discharge of Balthrope so long as the initiation fee remained due and untendered; that upon tender of his initiation fee Balthrope ceased to be a "free rider," and concomitantly the power to discharge him was lost; that any subsequent demand by the Union for his discharge was necessarily for a reason other than the failure to pay the initiation fee, and similiarly, his discharge was for a reason other than the failure to pay the initiation fee; and hence both the Union and the Company were guilty of the unfair labor practices as charged.
8
Respondents assert that the Act allows execution of a collective bargaining agreement requiring an employee subject to a union security contract to join the union or at least tender his initiation fee within the thirty day grace period; that this statutory authorization enables a union to insist upon the timely submission of uniformly required initiation fees; and that an employee who fails to tender his fee within the required period cannot by a tardy attempt to meet his contractual obligation forestall his discharge for failure to comply with the terms of the agreement.
9
It is readily apparent from an analysis of the arguments of all parties that there exists a wide area of unanimity of opinion. They agree, and we think correctly, that the Act severely circumscribes the authority of labor organizations and employers to enter into collective bargaining agreements making union membership a condition of employment.8 The general policy of the Act is to effect a separation between an employee's job rights and union activities. Radio Officers' Union of Commercial Telegraphers Union v. N. L. R. B., 347 U.S. 17, 40, 74 S.Ct. 323, 98 L.Ed. 455; see also Note, The Ability of A Union to Cause a Discharge For Nonpayment of Dues Under The Taft-Hartley Act, 45 Geo.L.J. 250 (1956-57). The union security provision, the lone exception to this general policy, is restricted and qualified. Even where, as in the instant case, all the statutory requirements of a valid union shop agreement are met, the Act provides that the only ground upon which an employee can be lawfully discharged is for non-payment of initiation fees or periodic dues. Nothing else suffices. Cf. Union Starch & Refining Co. v. N. L. R. B., 7 Cir., 186 F.2d 1008, 1009, 27 A.L.R.2d 629, certiorari denied 342 U.S. 815, 72 S.Ct. 30, 96 L.Ed. 617. As stated by the Supreme Court in Radio Officers' Union, 347 U.S. at page 41, 74 S.Ct. at page 336,
10
"This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of the unions' concerns about `free riders,' i. e., employees who receive the benefits of union representation but are unwilling to contribute their share of the financial support to such union, and gave union the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason. Thus an employer can discharge an employee for nonmembership in a union if the employer has entered a union security contract valid under the Act with such union, and if the other requirements of the proviso are met. No other discrimination aimed at encouraging employees to join, retain membership, or stay in good standing in a union is condoned."
11
If the employee pays his fees and dues he is protected from discharge. The critical question, and one which causes a divergence of viewpoint, is whether the union security proviso which empowers unions and employers to make agreements by the terms of which employees are required to join the union within the thirty day grace period (and an agreement executed thereunder) means that the employees must join the union during this period in order to avert possible discriminatory treatment or whether it is enough that they join at any time prior to actual discharge.
12
Neither the literal language of the Act itself nor its legislative history furnishes an explicit answer to this precise issue. However, we think in light of its legislative background, a fair interpretation of the union shop proviso to § 8(a) (3) is that it authorizes the execution of collective bargaining agreements which make time of the essence with regard to the tender of initiation fees within the thirty day grace period allowed by the proviso. We hold further that a reasonable construction of the collective bargaining agreement involved in the instant case is that it in fact so provides. On its face the proviso permits agreements which "require" employees to initiate union membership within a specified time. The payment of initiation fees is the first step in acquiring union membership. The imperative character of the phrase "to require" followed by a definite time period for compliance during which period discrimination based on non-membership is expressly proscribed, indicates, we believe, a Congressional intent to permit discrimination based on the failure to tender uniformly required initiation fees where the employee has not fulfilled his obligation within the period expressly granted for his protection.
13
This conclusion that the Union can insist upon timely submission of initiation fees is reinforced by the legislative history of the Taft-Hartley Act. The conference and committee reports as well as the debates on the floor abound with statements emphasizing the prime significance of the thirty day grace period in relation to the employee's job rights. The original House Report on the Hartley bill (H.R. 3020, 80th Cong. 1st Sess.) declared that the bill
14
"* * * permits an employer and a union voluntarily to enter into an agreement requiring employees to become and remain members of the union a month or more after the employer hires them or after the agreement is signed, * * * (so that) Employees have 30 days to decide whether or not to join the union." House Report No. 245, 80th Cong., 1st Sess., pp. 9 and 34.
15
The Senate Report on the union security provisions of the Taft bill (S. 1126, 80th Cong., 1st Sess.), which were incorporated in substantial part in the Act, stated that under the Taft bill
16
"* * * employers would still be permitted to enter into agreements requiring all the employees in a given bargaining unit to become members 30 days after being hired * * *."
17
See also the Conference Report on the Act. House Conference Report No. 510, 80th Cong., 1st Sess., June 3, 1947, pp. 41 and 44.
18
During the course of the heated and prolonged debates that marked the passage of the Taft-Hartley Act, Senator Taft, co-author of the Act, addressing himself to the union security provisions of his bill, declared that "the employee must join the union within 30 days after he is employed" (93 Congressional Record 5087), after having previously said that "an employer may employ anyone whom he chooses to employ, but after 30 days such employee has to join the union or else the employer can no longer employ him." 93 Congressional Record 3952.9
19
Although the legislative materials contain no explicit reference to the effect of late tender of initiation fees on the power to cause the discharge or to discharge an employee who breached his obligation to tender the fees within the specific time limitation authorized by the statute and provided for in the contract, the implication is strong from the great importance attached to the grace period that timely tender is required to prevent a lawful discharge of the employee in the absence of circumstances which forestall the union or employer from relying on the employee's failure to pay the fees.
20
This construction of the Act is identical to that adopted by the Board after the enactment of the statute and followed consistently until the Aluminum Workers case.10 We think its original position is correct. Congress expressly allowed employees thirty days in which to join the union or to at least tender their initiation fees under a union security agreement. Additional safeguards were not enacted. Accordingly, it perverts the legislative mandate to enlarge the scope of protection afforded employees. To do so would not only frustrate the manifested intention of Congress but also would tend to stimulate industrial instability. The effective enforcement of union security provisions of collective bargaining agreements depends in large measure upon the authority and capacity of unions to invoke the sanction of loss of employment against those non-union employees who fail to join the union or tender their initiation fees. If those employees were to be permitted to disregard with impunity the thirty day time limitation and refrain from tendering their fees until just prior to discharge, the persuasive force of the statutory sanction granted unions would be drastically diluted. The number of employees refusing to join unions within the thirty-day grace period would almost certainly increase if unions were unable to cause the discharge of employees for non-compliance with the terms of collective bargaining agreements. Even if payments were eventually forthcoming, the delay and harassment involved in securing the fees would prejudice the orderly and efficient administration of the internal affairs of unions. Another consequence of the Board's holding would be to grant unilateral power to employers for some period, at least, to control the fate of employees who had not tendered initiation fees on time by either admonishing them to pay the fees and deferring the decision on discharge until the employee fulfilled his obligation11 or else discharging them immediately. As stated by the Second Circuit in a very recent decision, International Ass'n of Machinists, A.F.L.-C.I.O. v. N. L. R. B., 247 F.2d 414, 420:
21
"It seems clear to us that Congress did not intend that the efficacy of valid union security provisions should depend solely upon an employer's willingness to act promptly upon a request for an employee's discharge when the validity of that request is not in issue."
22
It appears equally evident that to prevent unions from taking effective action to secure the prompt payment of initiation fees would not be conducive to healthy industrial relations. To allow unions the power to discipline by discharge those employees who procrastinate beyond the statutory and contract deadline for becoming union members avoids, we believe, the discordant ramifications of the Board's holding and accords with the general purposes and objectives of the Act.
23
It is important to note that the sweeping doctrine of the Aluminum Workers case has never received judicial approval in its own delinquent dues setting but on the contrary was expressly rejected by the only Circuit to pass on the issue. In the Aluminum Workers case itself the Seventh Circuit in granting enforcement to the Board's order held that a proper and valid tender of dues had been made by the employee prior to the request for discharge.12 It explicitly refrained from passing on the broader holding of the Board. In International Ass'n of Machinists, A.F.L.-C.I.O. v. N. L. R. B., supra, the Second Circuit held that the Aluminum Workers doctrine "is an incorrect statement of the law." It held that a union could lawfully compel the discharge of a delinquent member under a union security agreement despite a belated tender of dues.13 Thus even in its own context the Aluminum Workers doctrine stands at best on doubtful footing.
24
Counsel have devoted much effort and thought to the applicability or inapplicability of the Aluminum Workers doctrine to an initiation fee situation because of claimed differences between such fees and dues in respect to incidents of union membership.14 We have held that the Act authorized the formulation of a collective bargaining agreement requiring employees to take action to join the union within the grace period or be exposed to possible discharge for noncompliance with the agreement, notwithstanding the belated tender of initiation fees, and that the agreement in question so provided. Accordingly, it is unnecessary to consider the asserted distinctions between fees and dues and we do not pass on that question. Of course, we are not to be understood as holding that Aluminum Workers cannot be applied validly to a delinquent dues situation. That issue is, of course, not before us and we express no opinion on it. We hold simply that the Act precludes application of the Aluminum Workers case to the instant controversy.
25
The contention was advanced on oral argument that an alternative ground exists for granting enforcement to the Board's Order. It was urged that there is here present conduct on the part of both the Union and the Company which precludes them from asserting their respective rights under the collective bargaining agreement. It is pointed out that the Respondents are (1) a Company which was apparently in continual breach for over five months of its contractual duty to discharge errant employees who failed to join the Union and that the discharge was effected after the Company was made aware of Balthrope's payment of the initiation fee and possibly after it learned that the Union had accepted the tendered check, and (2) a Union which demanded the employee's discharge after he had paid his fees and which took no action apparently to forestall Balthrope's discharge after it had accepted his tender.
26
Careful attention and consideration has been given this argument. It is not without appeal or merit. But the conclusion seems inescapable that it cannot be supported on the record now before us.
27
The Board's majority opinion alludes to the fact that the Union accepted Balthrope's payment prior to his discharge, which evoked a charge from the dissenters that the majority was resting, in part, "upon some inarticulated waiver theory." The majority's reference to the acceptance of Balthrope's payment immediately follows an express holding that the Aluminum Workers doctrine controls the instant case. Although the question is not wholly free from doubt, it would appear that the majority mentioned the acceptance of payment merely as a fact adverse to Respondents to buttress the "tender before discharge" holding and not as an additional ground of decision. For, as the dissenting Board members and the Trial Examiner observed, the General Counsel raised no issue concerning waiver, acquiescence or similar conduct on the part of either Respondent.15 Thus the preclusion argument addressed to this Court was not raised, argued or decided in the proceedings to date.
28
It must be borne in mind that we are here asked to evolve equitable principles and standards in a virgin area of labor law. Surely an employee must not remain perpetually vulnerable to discharge because of tardiness in submitting initiation fees, irrespective of the conduct engaged in by the union or the employer. Either the employer or the union may by its actions be estopped from asserting its particular rights under the collective bargaining agreement. But inherent in making such a determination is the balancing and accommodation of different interests and various factors based on policy considerations. The questions presented thereby are manifold. It would be necessary to ascertain what factors are relevant and the proportionate weight to be accorded each in the determination of whether a union is precluded to cause, or an employer to effect, the discharge of an employee based on failure to tender on time the uniformly required initiation fees under a valid union security agreement. Moreover, a conclusion predicated on equitable grounds denying Respondents the right to exercise their statute-approved contractual rights necessitates a complete and searching analysis of the particular factual situation. Here the skeleton character of the stipulation is in itself a formidable obstacle to any such a conclusion.16
29
We believe that under the circumstances here existing this issue should be considered in the first instance by the Board. Not only the uncertain state of the record dictates this conclusion. It also appears sound policy to permit the body charged with the primary responsibility for the enforcement of the Act to utilize its specialized competency and knowledge in the field of labor relations to develop the equitable principles required by the preclusion theory.
30
Apart from any preclusion theory, it may well be, too, that in fact Balthrope's discharge was caused for a reason or reasons other than the failure to tender his initiation fee on time — the only ground upon which his discharge could be sought lawfully. If this be true, it may also be that the Company had reason to know the true reason for the Union's reiterated demand for discharge. Certainly the record does not negate the possibility that other considerations motivated the Union's demand. And, of course, if any other reason or motive did play any part in causing Balthrope's discharge, the Union was guilty of an unfair labor practice, and if the Company had reason to know the Union's true motive, then it too committed an unfair labor practice. However, the Board made no finding on this issue. A finding that the discharge was caused for a reason or reasons other than the failure to tender initiation fees or periodic dues is essential if the Order is to be enforced. International Ass'n of Machinists, A.F.L.-C.I.O. v. N. L. R. B., supra.
31
In view of the disposition made of Respondents' first and main defense we need not consider other defenses submitted by them.
32
The petition of the Board is denied. The cause is remanded to the Board for such further proceedings as it deems justified in light of the views expressed in this opinion.
Notes:
1
61 Stat. 136, 29 U.S.C.A. § 160(e)
2
It is undisputed that these other prerequisites were fulfilled, i. e., majority status of the bona fide Union; compliance by the Union with the filing requirements of Section 9(f), (g) and (h); and, availability of union membership to Balthrope "on the same terms and conditions generally applicable to other members." Accordingly, discussion of these prior essentials is unwarranted
3
Each party was given an opportunity to call witnesses or offer evidence before the Trial Examiner and each declined to do so
4
This factual statement was not included in the stipulation. It is based on an allegation of the consolidated complaint which the Respondent Company did not deny and hence, under well settled rules of pleading, thereby admitted. Although the Respondent Union's answer contained a denial as to this allegation based upon lack of information and belief, the Trial Examiner concluded that since the substance of the allegation dealt exclusively with a matter within the Company's knowledge, the Company's implied admission was sufficient to prove the fact. We agree
5
61 Stat. 136, 29 U.S.C.A. § 151 et seq
6
The Board's Decision and Order are reported at 115 N.L.R.B. 1607
7
Aluminum Workers International Union, 112 N.L.R.B. 619, enforcement granted, N.L.R.B. v. Aluminum Workers International Union, 7 Cir., 230 F.2d 515
8
The Act not only limits the employee's duty under a union shop agreement to the payment of initiation fee and periodic dues but it also outlaws closed shop agreements
9
Similar statements were voiced by Senator Smith (93 Congressional Record 3952), Senator Thye (93 Congressional Record 5087), Senator Donnell (93 Congressional Record 5091), and Senator Ball (93 Congressional Record 5147). All these comments state in the imperative the employee's duty to join the union within the thirty-day grace period
10
Matter of Chisholm-Ryder Co., 94 N.L. R.B. 508; Matter of Ferro Stamping & Mfg. Co., 93 N.L.R.B. 1459. See also the Board's annual reports to Congress. N.L.R.B. Nineteenth Annual Report, p. 90; Eighteenth Annual Report, p. 41; Seventeenth Annual Report, pp. 147 and 152; Sixteenth Annual Report, p. 185
11
In such a situation the union might have recourse against the employer for breach of the collective bargaining agreement under Section 301 of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 185
12
The Court held that the union wrongfully refused a valid first tender made by the employee. It held further that under the practice developed by the union and the employer the employee's second tender, made prior to the union's demand for discharge, also was a valid tender
13
Judge Learned Hand dissented on other grounds
14
Respondents contend there is a basic difference between initiation fees which enable an employee to become a union member and periodic dues which are required to be paid to maintain union membership. They assert that the duty to pay dues cannot arise until the employee has acquired union membership. Accordingly, the Union could not collect dues from Balthrope for the intervening four month period between the expiration of the grace period and the time of tender and therefore he was a "free rider" for this period. Petitioner argues, first, that the Union is not here prejudiced because it received the only sum it requested and, second, that the Union could obtain payment of the dues from either Balthrope or the Company. We express no opinion as to whether or not the Union could exact as consideration for relinquishing its right to press for the employee's discharge for late tender of initiation fees the payment of dues for the interim period between the end of the grace period and the date of tender
15
See Dissenting Opinion (R. 74) and Intermediate Report (R. 40-41)
16
For example, the stipulation does not reveal whether the Company received notice of the Union's acceptance of Balthrope's tender prior to the time it discharged him nor whether the Union took any action, favorable or unfavorable, in respect to Balthrope's continued employment with the Company in the three day period between acceptance of his tender and discharge. We do not pass on the particular relevancy of these or other facts omitted in the stipulation. We set them out merely to illustrate the incomplete and uncertain depiction of the overall factual situation that is presented by the record before us
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695 S.W.2d 736 (1985)
Jerry Wayne MATTHIAS, Appellant,
v.
The STATE of Texas, Appellee.
Nos. A14-84-00318-CR, C14-85-00012-Cr, A14-85-00013-CR and B14-85-00014-CR.
Court of Appeals of Texas, Houston (14th Dist.)
July 18, 1985.
Rehearing Denied August 15, 1985.
*737 Robert A. Shults, of Shults, Hetherington, Linder & Tarics, William W. Burge, Houston, for appellant.
John B. Holmes, Dist. Atty., Calvin A. Hartmann, Roe Morris, Asst. Dist. Attys., Houston, for appellee.
Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
Rehearing Denied August 15, 1985, in No. 14-84-318CR.
OPINION
SEARS, Justice.
This is an appeal from a conviction on four of six counts of felony theft under Section 31.03(b)(2) of the Texas Penal Code. The appellant pled not guilty, and the jury found him guilty of counts one, two, three and five. The state abandoned count four, and the trial court instructed the jury to find appellant not guilty on count six. The court assessed punishment at six years' confinement as to each count and assessed a fine of $5,000.00 as to count one. We affirm in part and reverse and remand in part.
During trial, the state relied heavily on the testimony of David Alto, an accomplice in the thefts. Because Alto was a drug addict, it was necessary for him to steal to support his habit. He met appellant shortly after he (Alto) was released from prison following a burglary conviction. In July of 1982, appellant and Alto drove through appellant's neighborhood and discussed which houses would be good targets for a burglary. Alto would then burglarize the houses and deliver the stolen goods to appellant in exchange for cash. Counts one, two, three and five of the indictment involve houses in appellant's neighborhood which Alto burglarized. Count six relates to appellant's purchase of five firearms from Alto. These weapons were furnished to Alto by Houston Police Department Detective Dallas Bingley and were taken by Bingley from the police property room. Alto agreed to be wired for sound and was instructed by Detective Bingley to call appellant and offer to sell him the weapons. Alto followed instructions, and the transaction was successfully recorded by the police. *738 After this sale was consummated, a search warrant was issued, appellant's house was searched, and many items were seized. Appellant was arrested and charged with felony theft.
In his first ground of error appellant asserts that the trial court erred in denying his Motion for Mistrial based on the state's evidence of an extraneous offense in its presentment of evidence relating to count six. Detective Bingley testified that the guns were taken from the police property room and belonged to the City of Houston. Appellant made no objection to this testimony until after the state rested. By failing to make a timely objection to the testimony, appellant did not offer the trial court an opportunity to sustain an objection and instruct the jury to disregard the evidence. Although he claimed that his Motion for Mistrial represented his first opportunity to object to the evidence, appellant failed to show why he could not object when the testimony was offered. Appellant has waived any objection he may have had to the evidence. Gentry v. State, 494 S.W.2d 169 (Tex.Crim. App.1973); Brown v. State, 460 S.W.2d 925 (Tex.Crim.App.1970). Appellant's first ground of error is overruled.
Appellant argues in his second ground of error that the trial court committed reversible error by overruling his objections to evidence of extraneous offenses which were not proved to be committed by appellant. Specifically, he complains of the testimony of Lieutenant Richard Rekieta of the Houston Police Department. Lieutenant Rekieta testified that pursuant to his search of appellant's bedroom, he observed "dozens of pieces of jewelry" on the dresser. Appellant objected to this testimony on the ground that it tended to show an extraneous offense not proved to be committed by him.
It is well settled that evidence not described in a valid warrant, but lawfully seized pursuant to the warrant, is admissible. Chambers v. State, 508 S.W.2d 348, 352 (Tex.Crim.App.1974); Phenix v. State, 488 S.W.2d 759, 766 (Tex.Crim.App.1972). Further, the state made no allegation that the jewelry was stolen. It attempted to establish as stolen only those items which were seized at appellant's house and listed in the indictment. In addition, any negative inference the jury could have attached to the evidence was overcome by the testimony of appellant's witness, Patricia Hornburg, that appellant was a collector of jewelry. When asked on cross-examination how the jewelry got on the dresser, appellant himself testified that he may have put it there. Error, if any, was therefore waived. Appellant's second ground of error is overruled.
In his third ground of error appellant contends the evidence was insufficient to support the verdict. Count one of the indictment alleges that appellant unlawfully appropriated property from Cheryl Magee "knowing the property was stolen and obtained from the Complainant by another person, namely, David Alto." Counts two, three and five are identical except the complainant is different in each count of the indictment. The elements of the offense with which appellant is charged are: (1) a person, (2) with the intent to deprive the owner of property, (3) appropriates property, (4) which is stolen property, (5) knowing it was stolen, (6) by another. Tex.Penal Code Ann. § 31.03(b)(2) (Vernon Supp. 1985). The state pled more than was necessary by alleging appellant knew the property was obtained from Cheryl Magee, or other named complainants. When there are unnecessary allegations in an indictment that are descriptive of that which is legally essential to charge a crime, they must be proven as alleged even though needlessly stated. Weaver v. State, 551 S.W.2d 419 (Tex.Crim.App.1977). However, unnecessary words or allegations in an indictment may be rejected as surplusage if they are not descriptive of that which is legally essential to charge a crime. Windham v. State, 638 S.W.2d 486 (Tex. Crim.App.1982). We find the unnecessary allegation of knowledge that the property was stolen from a specific named person is legally essential to these charges of a *739 crime; therefore, the proof must support the allegations or the evidence will be insufficient to support a conviction. Franklin v. State, 659 S.W.2d 831 (Tex.Crim.App. 1983); Seiffert v. State, 501 S.W.2d 124 (Tex.Crim.App.1973).
Cheryl Magee was the named complainant in count one. Alto testified that on or about July 24, 1982, he and appellant drove around appellant's neighborhood to discuss and plan "some burglaries." They looked at Cheryl Magee's residence, and Alto determined that it was a "good house" because it appeared that no one was home. On returning to appellant's house, they called Cheryl Magee's home after looking up the number in appellant's neighborhood directory. When no one answered, Alto walked from appellant's house to complainant's and rang the doorbell. Again no one answered. Alto pried open a door with a screwdriver, entered and took some stereo components, jewelry and a gun from Magee's residence, then returned to appellant's house. The entire transaction took about fifteen minutes. Alto sold the stereo components and jewelry to appellant and placed the components in a closet in appellant's back bedroom.
Under Section 31.03(c)(2) of the penal code, the uncorroborated testimony of an accomplice is sufficient to establish knowledge or intent of an actor charged with theft under Section 31.03(b)(2). Since Alto testified that appellant knew he was going to burglarize Cheryl Magee's house, and he returned to appellant's house and sold him the property taken from her residence immediately after committing the offense, we find that this evidence is sufficient to establish that appellant knew the property was stolen from the named complainant in count one. However, the state has failed to prove that appellant had any knowledge of the named complainants in counts two, three and five, or that he knew the items of property he purchased from Alto were "obtained" from them. There is no doubt appellant knew he was purchasing stolen property; however, there is simply no proof he knew from whom it was stolen. We overrule appellant's third ground of error as to count one and sustain it as to counts two, three and five.
Appellant argues in his fourth ground of error that the trial court erred in overruling his objection to hearsay testimony. The testimony objected to was that of Kathy Coffman, President of the Homeowner's Association in appellant's neighborhood. It concerned the procedure that the neighborhood residents were encouraged to follow; i.e., notify the security guard or the neighborhood director of security when they went out of town.
First, appellant's objection at trial did not raise the issue of hearsay. It was established that appellant at one time was the security director of the neighborhood. Appellant objected to the testimony of "procedures" because it had not been established that any witnesses called appellant to report that they were going out of town. He argued the prejudicial effect of the testimony outweighed its probative value. The ground of error urged on appeal must comport with the objection raised at trial, otherwise nothing is presented for review. Smith v. State, 683 S.W.2d 393, 407 (Tex. Crim.App.1984); Crocker v. State, 573 S.W.2d 190, 205 (Tex.Crim.App.1978).
Second, even if we were to find that appellant's objection at trial was based on hearsay, his ground of error must nonetheless be overruled. Hearsay is generally defined as evidence of a statement made out of court which is offered for the purpose of proving the truth of that statement. Girard v. State, 631 S.W.2d 162, 164 (Tex.Crim.App.1982). Coffman's testimony as to the policy of homeowners in appellant's neighborhood was based on her personal knowledge as president of the Homeowner's Association. Appellant's fourth ground of error is overruled.
In his final ground of error appellant contends that the trial court erred in failing to grant a mistrial when it discovered that a juror was not a resident of Harris County. Before trial had concluded, the court recessed for the weekend. On Sunday evening *740 a juror telephoned the trial judge to inform him that she had been in an automobile accident and would need transportation from her home in Missouri City to the courthouse. It was during the course of this conversation that the judge discovered the juror was a resident of Fort Bend County. Prior to resuming trial on Monday morning, the court informed counsel of the matter. The record does not show that counsel for appellant moved for a mistrial at that time. A motion for mistrial was made and denied after both sides had rested and closed and after the juror in question had testified out of the presence of the other jurors. Her testimony indicates that the official juror information form was sent to her mother's home in Harris County. She changed the address on the form to reflect her current street and number in Missouri City but left her city of residence as Houston. She testified that she receives mail addressed to Houston as well as to Missouri City; the only difference was that mail addressed to Houston has a ZIP Code of 77053, while that addressed to Missouri City has a ZIP Code of 77453. Neither the state nor appellant challenged the juror for cause at voir dire or at any time prior to her testimony.
Article 35.12 of the Texas Code of Criminal Procedure provides as follows:
In testing the qualification of a prospective juror after he has been sworn, he shall be asked by the court, or under its direction:
1. Except for failure to register, are you a qualified voter in this county and state under the Constitution and laws of this state?
2. Have you ever been convicted of theft or any felony?
3. Are you under indictment or legal accusation for theft or any felony?
There is nothing in the record which indicates that this procedure was or was not followed. The mandatory language of Article 35.12 merely requires the court to accurately prescribe the test upon which the parties may base their challenges for cause. Lowe v. State, 88 Tex.Crim. 316, 226 S.W. 674, 682 (1921).
Article 35.16 of the Texas Code of Criminal Procedure provides in pertinent part as follows:
(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
1. That he is not a qualified voter in this state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;
2. That he has been convicted of theft or any felony;
3. That he is under indictment or other legal accusation for theft or any felony;
4. That he is insane; ...
* * * * * *
No juror shall be impaneled when it appears that he is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist....
Since the ground for challenging this juror for cause is the first under Article 35.16, appellant waived it by failing to inquire about the juror's qualifications during the voir dire examination of the jury panel and by failing to present his challenge at that time. Mangum v. State, 493 S.W.2d 798, 799 (Tex.Crim.App.1973).
Appellant argues that Salazar v. State, 562 S.W.2d 480 (Tex.Crim.App.1978), supports his contention that he is entitled to a new trial. Salazar was a Mexican-American male charged with indecency with a child. The juror was previously a witness to the sexual assault of his daughter by a Mexican-American male. This was obviously "material information likely to affect the juror's verdict." Salazar v. *741 State, 562 S.W.2d at 482. The fact that the juror in this case failed to change the city on her juror information form is not material information likely to affect her verdict. Appellant's fifth ground of error is overruled.
We affirm the judgment of the trial court as to count one, and reverse and remand with instructions to enter judgments of acquittal as to counts two, three and five.
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507 So.2d 225 (1987)
STATE of Louisiana
v.
Eurl THOMAS, Jr.
No. 87-K-0751.
Supreme Court of Louisiana.
June 5, 1987.
Denied.
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May 30, 2013
JUDGMENT
The Fourteenth Court of Appeals
THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
Appellant
NO. 14-12-00581-CV V.
KAI HUI QI, Appellee
____________________
This cause, an appeal from the judgment in favor of appellee, KAI HUI QI,
signed June 11, 2012, was heard on the transcript of the record. We have inspected
the record and find error. We therefore order the judgment of the court below
REVERSED and RENDER judgment dismissing KAI HUI QI’s suit for lack of
jurisdiction.
We order appellee, KAI HUI QI, to pay all costs incurred in this appeal. We
further order this decision certified below for observance.
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Filed 4/16/13 P. v. Shulte CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A136105
v.
TIMOTHY CHRISTOPHER SHULTE, (Sonoma County
Super. Ct. No. SCR23531)
Defendant and Appellant.
Timothy Christopher Shulte appeals from a judgment of the Sonoma County
Superior Court, in a case tried to the court, extending his commitment as a mentally
disordered offender (MDO) pursuant to Penal Code section 2972.1 The commitment
expires on August 10, 2013. Appellant’s court-appointed counsel has filed a brief raising
no legal issues and asking this court to conduct an independent review pursuant to People
v. Wende (1979) 25 Cal.3d 436. The court has also received and considered a two-page
handwritten supplemental brief submitted by appellant in propria persona, which was
filed with this court on December 31, 2012.
As appellant’s counsel acknowledges, In re Ben C. (2007) 40 Cal.4th 529, held
that the judicial review procedures established in Anders v. California (1967) 386 U.S.
738 and People v. Wende, supra, 25 Cal.3d 436, are inapplicable to conservatorship
proceedings arising under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code,
§ 4500 et seq.), and People v. Taylor (2008) 160 Cal.App.4th 304, which relied on Ben
1
Unless otherwise indicated, all statutory references are to the Penal Code.
1
C., held that the Anders/Wende review requirements are also inapplicable to appeals from
civil commitments pursuant to the Mentally Disordered Offender Act (MDOA).
Nevertheless, pointing to the statement in Ben C. that a reviewing court “may, of
course, find it appropriate to retain the appeal” in an LPS Act case (In re Ben C., supra,
40 Cal.4th at p. 544, fn. 7), and that nothing in People v. Taylor, supra, 160 Cal.App.4th
304 prohibits a reviewing court from according independent Wende review in an appeal
from a commitment under the MDOA if it wishes to do so, counsel requests that we
exercise our discretion to independently review the record to determine whether it
presents any issue that, if resolved favorably to appellant, would result in reversal or
modification of the judgment.
This division, having concluded that we have authority to voluntarily accord
Wende review in this case, and desiring to do so, grant appellant’s request.
FACTS AND PROCEEDINGS BELOW
The facts are provided primarily by the 10-page January 7, 2012 Dispositional
Court Report of Forensic Evaluator Ai-Li Arias, M.D., for the Department of Mental
Health (DMH), which was filed with the Sonoma County Superior Court on October 8,
2012, by Medical Director George Christison, of Patton State Hospital, as an exhibit to
his January 25, 2012 affidavit recommending that the Sonoma County District Attorney
apply to the court for an extension of appellant’s commitment. As it is a confidential
document, Dr. Arias’s Dispositional Court Report was sealed.
Appellant, a 48-year-old deaf man, was charged by the Sonoma County District
Attorney with lewd and lascivious conduct with a child under the age of 14 (§ 288, subd.
(a)) in 1995. After he was found incompetent to stand trial, he was committed to DMH,
and initially admitted to Atascadero State Hospital, pursuant to the MDOA (§ 2962). On
May 10, 1996, appellant was discharged from Atascadero State Hospital as having been
restored to competence to stand trial, and thereafter tried and convicted of the aforesaid
offense and sentenced to eight years in prison. During his term of imprisonment he was
transferred multiple times between the California Department of Corrections and
2
Rehabilitation (CDCR), where he was treated as a mentally ill prisoner, and DMH, which
placed him at Atascadero State Hospital for “psychiatric stabilization and management.”
Appellant’s original discharge date was August 10, 2006, but his commitment has
been continuously extended pursuant to section 2970. On August 10, 2003, appellant
was found to meet criteria for treatment by DMH as a condition of his parole, certified as
an MDO, and admitted to Atascadero State Hospital. On January 8, 2004, he was
administratively transferred to Patton State Hospital.
Appellant’s 1995 conviction for violation of section 288, subdivision (a), involved
inappropriate touching of his niece’s genitalia, and the placing of her hand on his erect
penis, which she was unable stop as appellant is deaf and she does not know sign
language. Appellant had suffered prior convictions and arrests for indecent exposure,
child molestation, and solicitation of a lewd act.
Dr. Arias’s 10-page Dispositional Court Report, which was “administratively
reviewed” and approved by Dr. Christison, the medical director of Patton State Hospital,
recommends that the district attorney petition to civilly commit appellant pursuant to
section 2972 on the ground that satisfies the criteria for such a commitment. That is,
appellant “has a severe mental disorder as defined in Penal Code section 2962(a),” he is
“not in remission as evidenced by signs and symptoms of a severe mental disorder not
controlled by either psychotropic medication or psychosocial support,” and he
“represents a substantial danger of physical harm to others . . . by reason of his severe
mental disorder.” (See § 2962, subds. (a)(1), (3) & (d).) The bases of these
determinations are set forth at length by Dr. Arias in her confidential report to the court.
The petition for continued involuntary treatment pursuant to section 2970 was
filed by the district attorney on February 9, 2012, and the hearing on the petition was
conducted without a jury by the Honorable Kenneth J. Gnoss on July 9, 2012. Dr. Arias
was the only witness.2 Appellant participated in the proceeding with the assistance of a
2
At the close of Dr. Arias’s testimony, appellant stated for the record that he had
been advised of his right to testify on his own behalf and waived the right.
3
team of American Sign Language interpreters, who also assisted appellant in
communicating with his attorneys in preparation for trial.
Before the taking of Dr. Arias’s testimony, appellant’s counsel filed a document
embodying 10 in limine motions, all of which pertained to the nature of the expert
testimony to be received by the court, most of which were designed to preclude the
receipt of expert testimony based on hearsay. After hearing the arguments of counsel,
some of the motions were granted, some with modifications,3 others were denied, and
some were taken under submission to be decided during the course of the proceedings.
The bulk of the hearing was taken up with the direct and cross-examination of
Dr. Arias. When it was completed, and counsel had made their closing arguments, the
court granted the petition, finding appellant is an MDO within the meaning of the
MDOA. The court explained its ruling as follows:
“Based on the testimony of Dr. Arias, the court does find that [appellant] does
have a severe mental . . . illness or disease or condition that substantially impairs [his]
thoughts, perceptions of reality, emotional process, or judgment.
“Given his confusion with God and Lucifer, it indicates to the court that he lacks
the necessary insight in[to] his own mental disease or disorder. This is also based on his
continued auditory and visual hallucinations.
“The court also has concerns regarding his refusal to participate in the individual
sexual offender treatment counseling. I do understand that it is somewhat limited by the
fact of his hearing issues; however, it appears that they’re willing to work with him on an
individual basis to allow him to participate in some form of one-on-one treatment. This
is given his prior criminal record and the commitment offenses of two counts of Penal
Code section 288(a), which the court had taken judicial notice that he had suffered those
3
For example, the court sustained appellant’s objections to any probation report,
bail report, or police report being received in evidence, in written form or hearsay
testimony, on the grounds it was hearsay. (See People v. Campos (1995) 32 Cal.App.4th
304.)
4
two prior convictions for lewd and lascivious conduct with a child under the age of 14
and that he received a state prison sentence of eight years.
“The court also has a concern in that [appellant’s] failure to take responsibility for
the commitment offense and the fact he blames Lucifer for the fault that he molested his
niece. The court also has a concern that if released, he will fail to continue his
medication. This is based on the statement to the interviewer that he said God says he
doesn’t have to take his medications. The court also has a concern about his intentions to
consume alcohol when released.
“The court’s biggest concern is that he has not followed his in-custody treatment
plan and has no out-of-custody treatment plan in place, which would likely result in
relapse if released back in the community.
“Based on the testimony and evidence presented here in court, the court also finds
that his severe mental disorder is not in remission. And because of the severe mental
disorder, he continues to represent a substantial danger of physical harm to others.”
Based on these findings, which the court explicitly made “beyond a reasonable doubt,”
the court extended appellant’s commitment to August 10, 2013.
DISCUSSION
Appellant was at all times represented by able counsel who protected his rights
and interests.
In order to prepare for trial with his attorneys and to participate in the trial,
appellant was provided able interpreters who also insured that appellant’s waiver of the
right to testify was voluntary and informed.
Having reviewed the motions considered by the court in limine and the transcript
of the proceedings, we conclude that no inadmissible evidence was received by the court
and no admissible evidence excluded.
The judgment is supported by substantial evidence.
The commitment ordered by the court is authorized by law.
Accordingly, our independent review discloses no arguable issue requiring further
briefing. The judgment is affirmed.
5
_________________________
Kline, P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
6
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