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256 F.2d 895
Clyde HOOD and Leslie Shults, Trustees of the Texas American Syndicate, and W. E. Hendricks, et al., Interveners, Appellants,v.C. Gilbert JAMES et al., Appellees.
No. 16666.
United States Court of Appeals Fifth Circuit.
June 26, 1958.
Rehearing Denied August 11, 1958.
James U. Thurman, Dallas, Tex., Leo Brewster, Fort Worth, Tex., W. B. Harrell, Dallas, Tex., Brewster, Pannell, Leeton & Dean, Fort Worth, Tex., for appellants.
Charles S. Hopkins, Olean, N. Y., Owen F. Renegar, Oklahoma City, Okl., J. Hart Willis, C. A. Mattay, Robert A. Neathery, Dallas, Tex., Code E. Edwards, Fort Worth, Tex., John B. Stigall, Jr., Dallas, Tex., for appellees.
Before RIVES, BROWN and WISDOM, Circuit Judges.
RIVES, Circuit Judge.
1
This appeal is from a judgment removing Clyde Hood and Leslie Shults as Trustees of the Texas American Syndicate and appointing three other trustees, with instructions that they operate under orders of the court and not under the trust indenture and that they look toward an ultimate liquidation of the Syndicate in "the form of a sale or sale in part and incorporation as may be determined." The district court wisely suspended the operation of that judgment until the termination of this appeal. Three other appeals have reached this Court from judgments and orders of the district court involving the Texas American Syndicate.1
2
For an understanding of the questions now presented, we re-state some of the facts. The Texas American Syndicate is a "Massachusetts Trust"2 created by an indenture executed on March 15, 1922, by H. H. Tucker, Jr., to himself as sole trustee, and twice amended. The Syndicate owns more than sixty-one thousand acres of ranch land in Crane, Pecos and Brewster Counties and small tracts in other counties, all in Texas. Much of that land has proved to be rich in oil and natural gas. Mr. Hood, one of the present trustees, testified on the hearing before the district court that a conservative value of the properties of the Syndicate would be around $750,000.00, and that its only substantial indebtedness was approximately $10,000.00 owed to the State of Texas for some land purchased. Some of the terms of the trust were set forth by the district court in the order or judgment from which this appeal is prosecuted:
3
"The said declaration of trust contained among other provisions the following:
4
"`This conveyance and assignment is made in trust, however, for the following purposes:
5
"`(a) To create a trust estate to be known and designated as the Texas American Syndicate subject to the following conditions:
6
"`(1) That H. H. Tucker shall be the sole trustee of the said estate, and
7
"`(2) That said estate shall have an authorized capitalization of Nine Hundred Thousand ($900,000.00) Dollars, divided into Nine Hundred Thousand (900,000) shares or units of the par value of One (1.00) Dollar each * * *
8
"`And said trustee is expressly authorized to bring or defend any such suits in his discretion and to compromise or settle said suit, claim or controversy in which said trust estate is interested, as to him may seem best * * *'
9
"`That the right of the said trustee to manage, control and administer said trust estate shall be absolute and unconditional, free from the control and management of the shareholders.'
10
"* * * `The legal title of such estate shall be vested in said trustee and said certificate shall be personal property of the owner thereof, as shown by the books of the trustee, and neither said owner, nor his heirs, or personal representative at his death, shall have any legal title to said trust estate or any part thereof, or interest therein, or the right to partition the same or to an accounting, but only to receive the income or proceeds thereof.'
11
"* * * `Said trust estate shall not be compelled to pay any profit or dividends to said shareholders unless the trustee in the exercise of his sound discretion elects so to do.'
12
"`That this trust estate shall continue and remain in force for the term of one hundred years * *.'"
13
The trust estate continued under the control of its original trustee, H. H. Tucker, Jr., until 1934 when it was placed in receivership in the District Court of Parker County, Texas. The opinion on the first appeal of that proceeding shows that the suit was a class action prosecuted for the benefit of all of the shareholders of the trust. Looney v. Doss, Tex.Civ.App.1945, 189 S.W.2d 207.
14
During the course of that receivership, some of the shareholders petitioned the trial court to order a liquidation of the Syndicate on the ground that, while paragraph XIII of the trust indenture provided that the shareholders "shall not be liable for any indebtedness or liability of the said trust estate," they had discovered that in law and in fact they were liable as partners. The trial court held the Syndicate to be a partnership and ordered it dissolved. That judgment was reversed by the Court of Civil Appeals in Looney v. Wing, 1946, 195 S.W.2d 557, though that court confirmed the view that the shareholders are liable as partners for the debts of the trust. The court quoted with approval from Burnett v. Smith, Tex.Civ.App., 240 S.W. 1007, 1009:
15
"`To finally dissolve the association, wind up its affairs, and distribute its assets would be to go counter to the plain terms of that contract which is binding upon the plaintiffs and all other stockholders, even though it should be held to constitute in law a partnership in its relation to creditors. In order for the plaintiff to escape the binding terms of that contract, and for the entire business to be terminated, and that, too, in the absence of any showing that other stockholders desired that to be done, a very clear showing should be made, to say the least.'" Looney v. Wing, supra, 195 S.W.2d 557, 562.
16
That state court receivership was finally terminated in 1946 and the Syndicate properties were delivered over to Karl Crowley as the duly elected successor trustee of the Syndicate.
17
About ten months thereafter, on October 31, 1947, Crowley as such trustee filed a voluntary reorganization petition under Chapter 10 of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. The district court granted the relief requested, and appointed Crowley as trustee in bankruptcy and he took possession of the Syndicate properties in that capacity. Upon his death, Herbert H. Thaxton was substituted as the trustee in bankruptcy. Upon appeal, this Court ruled that the Syndicate was not insolvent and that the petition had not been filed in good faith. Tucker v. Texas American Syndicate, 5 Cir., 1948, 170 F.2d 939.
18
After reversal, efforts to amend the petition in that case, No. 2163 in Bankruptcy, were unsuccessful and a new suit in equity, Civil Action No. 1855, was filed by a number of shareholders. The district court ordered the two cases consolidated; ordered Thaxton, who had theretofore been appointed trustee, to continue to administer the properties under the order of the court; appointed a master to take testimony and report to the court on the beneficial ownership of the assets of the trust; and stayed proceedings in a number of state court cases. This Court, upon appeal, dissolved the order staying proceedings in the state court cases, and affirmed the judgment of the district court in other respects. Tucker v. Baker, 5 Cir., 1950, 185 F.2d 863.
19
Thereafter, the master, appointed to conduct hearings for the purpose of determining who were the beneficial owners of the Syndicate, reported his findings of fact and conclusions of law to which numerous objections were made. The district court overruled those objections and confirmed the master's report. Upon appeal, all parts of the district court's judgment except the appointment of a receiver were affirmed, and the judgment appointing a receiver was reversed with directions to vacate the receivership. Tucker v. Baker, 5 Cir., 1954, 214 F.2d 627.
20
This Court, however, adhered to its holding, implicit on the former appeal, that since the district court had assumed possession of the properties in the bankruptcy proceeding, subsequently dismissed, it had jurisdiction to conserve those properties and to determine their ownership and the persons to whom they should rightfully be delivered. The opinion concluded with the admonition:
21
"* * * that this slow paced, slow moving proceeding be as economically and as speedily as possible brought to an end in a winding up order closing the administration and delivering the properties and their management to the person or persons rightfully entitled thereto."
22
Tucker v. Baker, supra, 214 F.2d 627, 632.
23
After receiving this Court's mandate, the district court discharged Thaxton as Receiver and appointed him as Conservator. It further appointed Clyde Hood as election judge and proctor to hold an election by the shareholders for the selection of a successor indenture trustee. After a short while, Hood reported to the court that a fair election could not be held "within the time period set by the court or any reasonable time thereafter," and:
24
"It is the considered opinion of your Special Master that it would require a minimum of twenty-four to thirty-six months of detailed examination, instruction and effort in order to procure the necessary evidence of qualification of heirs or other representatives of deceased shareholders so that an election representing the real views, desires and wishes of those owning the equitable interests in the authorized shares of Texas American Syndicate with respect to the selection of a Trustee or Trustees could be determined."
25
Thereafter, under date of February 28, 1955, all of the active interested parties in the two consolidated cases entered into a written settlement agreement, most of the substance of which is quoted in the margin.3 The parties jointly moved the court to approve the settlement agreement and to appoint "Leslie Shults, Clyde Hood and Herbert H. Thaxton, to act under the terms of the Trust Indenture of said Syndicate, with all of the powers, duties, rights and privileges therein provided." On March 8, 1955, the court entered its Order providing in part as follows:
26
"There was duly presented to the Court the written objection of Raymond S. Ruemper and the Court having read and considered the same is of the opinion that such objection goes to the provision of paragraph 9 of the contract and agreement heretofore filed herein and the Court, having taken into consideration the findings of fact and conclusions of law heretofore filed herein by the Special Master which were approved by this Court and affirmed on appeal by the United States Court of Appeals for the Fifth Circuit and being of the opinion that such finds (sic) of fact and conclusions of law are controlling with respect to such matter and further having examined such agreement and specifically with respect to paragraph 9 interprets such paragraph 9 to mean that such trustees shall have the internal administrative power of determining conflicting interests between the parties which will be subject to review at the request of any dissatisfied person by action taken before any Court of competent jurisdiction.
27
"It Is Ordered that the objection of the said Raymond S. Ruemper be in all things overruled.
28
"There being no other objections to the joint motion of J. Morgan Baker, et al. filed herein on February 4, 1955 moving this Court to exercise its equity powers to appoint trustees of the Texas American Syndicate, the Court having considered such motion, re-examined the agreement filed herein on the 28th day of February, 1955 with respect thereto constituting a proposed settlement agreement, the interim report of the Special Master filed herein on February 3, 1955, together with the record and proceedings heretofore had in these causes and is of the opinion that for the various reasons set forth in the Special Master Interim Report it would be a practical impossibility to conduct an election for the election of an indenture trustee pursuant to the provisions of the trust indenture and amendments thereto controlling the Texas American Syndicate within the time limit set by the Court or any other reasonable time;
29
"That delay in the selection of such trustee or trustees adversely affects and impairs such syndicate and its property and assets, that the proposed settlement agreement filed herein is fair, equitable and substantially protects the rights of all persons having an interest in the Texas American Syndicate, its assets and properties and that the joint motion of J. Morgan Baker, et al. should be granted.
30
"It Is Ordered that the settlement and contract agreement dated the 28th day of February, 1955 and filed herein on such date be and the same is in all things ratified, confirmed and approved.
31
* * * * * *
32
"It Is Further Ordered that Leslie Shults and Clyde Hood of Dallas, Texas, and Herbert H. Thaxton of Fort Worth, Texas, be and they are hereby appointed as co-trustees of the Texas American Syndicate to have all of the powers, privileges, rights, duties and obligations as provided in the trust indenture, together with all amendments thereto creating and controlling such Texas American Syndicate and such three named co-trustees are hereby authorized and directed to forthwith take into their possession all of the properties of the Texas American Syndicate and all of the books and records thereof and further to collect all sums of money or other properties now due such Texas American Syndicate with full power and authority to operate, manage and control the properties, assets and affairs of the Texas American Syndicate including, but not limiting thereby, the generality of the foregoing, the power and authority to execute division orders for the release of suspended pipeline funds, execute oil and gas leases or other conveyances of Syndicate properties, all free and clear of any further order or direction of this Court.
33
"It Is Further Ordered that Herbert H. Thaxton, Trustee and Conservator herein be and he is hereby ordered and directed to turn over to the said Leslie Shults, Clyde Hood and Herbert H. Thaxton as co-trustees of Texas American Syndicate all of the properties and assets and all books and records of said Syndicate in his possession and receive from such co-trustees a detailed receipt therefor and report back to this Court on or before April 1, 1955 rendering a final account showing such turnover, together with the receipt therefor and detailed account of the condition of the estate as of the date of such turnover and a hearing upon such final account and final discharge of such trustees and conservator is hereby set for Friday, April 8, 1955, at 10 o'clock in the forenoon in the United States District Courtroom at Dallas, Texas.
34
"It Is Further Ordered that any and all persons claiming a right to compensation for services rendered in these proceedings or for any other administration charges shall file their applications therefor in writing in this Court on or before the 1st day of April 1955; and a hearing on such petitions is hereby set for the 8th day of April, A.D. 1955 at 10:00 o'clock in the forenoon in the United States District Courtroom at Dallas, Texas.
35
"It Is Further Ordered that this Court retains jurisdiction of the assets and properties of Texas American Syndicate for all purposes until the entry of a final decree herein setting fees and discharging the trustee and conservator.
36
"Entered at Fort Worth, Texas, this the 8 day of March, 1955.
37
"T. Whitfield Davidson,
"United States District Judge."
38
Two months later, on May 11th, 1955, the district court entered a further order as follows:
39
"This the 11th day of May, 1955, the Court having completed consideration of the final account of the Trustee and Conservator, Herbert H. Thaxton heretofore filed herein and reviewed the receipt received by such Trustee and Conservator from Clyde G. Hood, Leslie Shults and Herbert H. Thaxton, Trustees of Texas American Syndicate is of the opinion that such final report and receipt is in proper form and constitute a proper accounting of his administration:
40
"It Is Therefore Ordered, Adjudged and Decreed by the Court that such report of said Herbert H. Thaxton be and the same is hereby approved and ordered filed as part of the record of this case and that the said Herbert H. Thaxton is hereby discharged from all further duty or liability in these proceedings as Trustee and Conservator and that the bond given by the said Trustee and Conservator for the faithful discharge of his duties, be iti (sic) is hereby canceled.
41
"It appearing to the Court that all matters in these proceedings have been completed and all assets turned over to the trustees:
42
"It is Further Ordered, Adjudged and Decreed that these proceedings be and they are hereby finally closed.
43
"It Is Further Ordered that all Unpaid Court costs be and they are hereby taxed against the assets and estate of the Texas American Syndicate, and its Trustees, to-wit, Clyde G. Hood, Leslie Shults and Herbert H. Thaxton are hereby ordered to pay such to the Clerk of this Court upon proper tender of a statement therefor.
44
"Entered at Fort Worth, Texas, this 11 day of May, 1955.
45
"T. Whitfield Davidson,
"Judge United States District
Court."
46
All three trustees qualified and acted for more than a year, though there were frequent disagreements between Thaxton and the other two trustees. On July 10, 1956, Thaxton resigned as trustee and on the same date the present suit was filed. It would appear that, with the order of May 11, 1955, the caretaker jurisdiction made necessary by the court's possession of the Syndicate's assets under the abortive bankruptcy petition filed in 1947 had at long last been relinquished. The present suit sought to have the court reassume jurisdiction on the basis of diversity of citizenship.
47
There are approximately 6436 persons who own interests in the Texas American Syndicate. Of these, 128 were listed as plaintiffs in the original complaint in the present suit. An amendment added a list of 1558 shareholders. More intervened on both sides of the controversy, with some suggesting other forms of relief. In addition to praying that the court itself appoint a proper officer or trustee to manage and conserve the assets of the Syndicate under the orders of the court, the complaint prayed that the court appoint an officer to conduct an election among the shareholders upon two propositions:
48
"1. Shall the Texas American Syndicate be transformed to a corporation.
49
"2. Twelve (12) trustees and directors be elected from the stockholders group from a list to be nominated by the stockholders, and that the mechanics and operation of said election be directed by the officer of the Court, subject at all times to supervision by the Court until completed."
50
The general basis for the relief sought was that the trust indenture creating the Syndicate was unworkable and required the court to invoke its equity powers "to properly carry out proper management, and a right and just distribution of the properties." The suit was not for enforcement of the trust indenture or of any of its provisions. Instead, the ultimate end sought was the dissolution of the Syndicate and its reorganization into a corporation. None of the usual grounds of equitable jurisdiction, such as misrepresentation or mistake in the making of the contract at a time more than thirty-four years before the filing of the complaint, or fraud or mismanagement of the properties, were relied on. Such charges of fraud as were made or intimated were dropped after an audit made by an outside certified public accountant showed the affairs of the trust to have been economically operated.4
51
Hood and Shults have continued to act as trustees. They have been harmonious. Each is under a $50,000.00 fidelity bond payable to the trust. Their combined compensation has been 3% of the income, as provided by the trust agreement. The Syndicate business has been operated with the employment of only two women, one a clerk and the other a stenographer.
52
It may be that, if the Syndicate had proved totally unworkable, a court of equity would have jurisdiction to liquidate its properties. The facts appearing of record in this case, however, affirmatively prove the contrary. Not only is the Syndicate now being operated honestly, economically and at a profit; but its properties are conservatively valued at $750,000.00, while its only substantial indebtedness amounts to about $10,000.00. Obviously, under such circumstances, there is no jurisdiction under the bankruptcy Act to reorganize the Syndicate. Federal jurisdiction must affirmatively appear. Of course, no court has jurisdiction simply to re-write a contract at the behest of dissident parties, or to convert their trust indenture into a corporation in the absence of practically unanimous consent.
53
The plaintiffs' attorney admitted that he represented with the same general authority many Texas shareholders and many who were residents of other states. He purposely omitted the Texas shareholders from the complaint so as to create diversity. Every shareholder is vitally interested, if not indeed indispensable, to a suit of this nature which seeks to amend or terminate the trust indenture. The Texas shareholders had the same interest as those residing outside Texas. They could be just as conveniently joined. It was not impracticable to join them. They should not be remitted to class representation under Rule 23, Federal Rules of Civil Procedure, 28 U.S.C.A. See 3 Moore's Federal Practice, Paragraph 23.05, p. 3420. Their joinder would have defeated federal jurisdiction.
54
We have every confidence in the learned district judge, and we know that he is actuated by the best of intentions, and that he sincerely sees the opportunity and duty to protect the small individual investor shareholders by orders of the court. Reluctantly, we must disagree with him, and hold that the order of May 11, 1955 fully and finally relinquished the court's caretaker jurisdiction; and that, if not already clear, the facts developed upon the hearing in the present suit showed that the court did not, either by the original or amended complaints, or by any of the several interventions, acquire any diversity jurisdiction of the parties or of the subject matter. The judgment is, therefore, reversed and judgment here rendered dismissing the complaint and amendments thereto and the interventions filed subsequent to May 11, 1955.
55
Reversed and rendered.
Notes:
1
See Tucker v. Texas American Snydicate, 5 Cir., 1948, 170 F.2d 939; Tucker v. Baker, 5 Cir., 1950, 185 F.2d 863; Tucker v. Baker, 5 Cir., 1954, 214 F.2d 627
2
"The `Massachusetts Trust' is a form of business organization, common in that State, consisting essentially of an arrangement whereby property is conveyed to trustees, in accordance with the terms of an instrument of trust, to be held and managed for the benefit of such persons as may from time to time be the holders of transferable certificates issued by the trustees showing the shares into which the beneficial interest in the property is divided. These certificates, which resemble certificates for shares of stock in a corporation and are issued and transferred in like manner, entitle the holders to share ratably in the income of the property, and, upon termination of the trust, in the proceeds." Hecht v. Malley, 1924, 265 U.S. 144, 146-147, 44 S.Ct. 462, 463, 68 L.Ed. 949
3
"1.
"Parties hereto are of the opinion that an election of a Trustee or Trustees of the Texas American Syndicate, which has been ordered by said Court by Order entered in said consolidated causes on December 9, 1954, cannot be conducted so as to elect a Trustee or Trustees who could qualify under the terms of the Trust Indenture of said Syndicate.
"2.
"Said parties being further desirous of settling said litigation and having the Syndicate placed in the hands of Trustees who can effectively develop the properties of the Syndicate for the benefit of these parties and all those having an interest in the Syndicate, agree, upon the conditions and for the covenants hereinafter stated, to present to the Court their joint Motion that the Court invoke its equity powers and appoint as Co-Trustees of the Texas American Syndicate, Leslie Shults and Clyde Hood of Dallas, Texas, and Herbert H. Thaxton of Fort Worth, Texas, each to receive one-third (1/3) of the commissions provided for the Trustee under the terms of the Trust Indenture of said Syndicate.
"3.
"It is further agreed that since all the matters in controversy in the hereinafter named State Court suits are compromised and hereby settled, that such suits be dismissed, with prejudice, namely: * * * (Six suits were listed and described)."
Paragraph 4 provided for the settlement of the claims of H. H. Tucker, Jr. and his wife, Nellie M. Tucker, and the establishment of the amount of their ownership of Syndicate stock.
Paragraphs 5, 7 and 8 settled various other claims.
"6.
"The undersigned parties further agree that upon the appointment of said Trustees, they shall have full authority to control, manage and operate the properties of Texas American Syndicate, as such powers are given in the Trust Indenture of said Syndicate, and that said Trustees shall do all further necessary acts to complete this Settlement Agreement, so as to accomplish the results intended hereby.
"It is further agreed that the jurisdiction of the District Court be retained for the sole and only purpose of the payment of fees and expenses incurred to date in these proceedings, and that the Trustees shall be given full authority to immediately begin the operation, management and control of the Syndicate properties, and collect all sums now due the Syndicate.
"9.
"It is further specifically agreed that any conflicting interest of the owners of the Syndicate as to their respective rights among themselves and proportionate ownership of the Syndicate, be left to the determination of the Trustees, to be determined upon the merits of each case and the values of the certificates of ownership in the Syndicate, as shown by the terms of such instruments."
Paragraphs 10 and 11 are omitted in the interest of brevity.
"12.
"It is further agreed between the parties hereto that upon the appointment of the above named Trustees, that a majority of said Trustees shall constitute a quorum for transacting any and all business of the Syndicate, and may enter into and execute such contracts, deeds, leases, releases, mortgages and other instruments which they may deem necessary and proper for carrying on the business of the Syndicate, and that the action of such majority shall be fully binding upon the Syndicate the same as if all of the Trustees had unanimously concurred in such action.
"13.
"All parties hereto further agree that they will, in the future, execute such other and further instruments as may be necessary to properly and effectively carry out the intent and purposes of this agreement.
"14.
"This agreement is executed by the undersigned with the express understanding and agreement that it shall become effective only in case that the Court enter its Order appointing said Trustees, with the powers as outlined hereinabove, and upon the further condition that this agreement shall be null and void and of no effect if such Order is not entered."
4
That fairly appears from the lengthy colloquy between court and counsel:
"Mr. Brewster: In connection with the proof we will offer it will shorten it a good deal if we understand whether or not there is any claim by anybody that the present trustees are guilty of any mismanagement or neglect of duty or anything of that nature.
"Mr. Renegar, do you claim there is any mismanagement or neglect of duty on the part of the trustee?
"Mr. Renegar: We do not believe and have not charged anything that would be detrimental. In other words, we are willing that the present trustees go until this matter is adjudicated, but we do think many things have operated in a slow manner, but we do not think there has been any dereliction of duty in doing the business. We are not insisting a special officer be appointed but we are willing they continue, together with another trustee that the Court may appoint, until this matter is arrived at.
"The Court: At any rate, you are agreeable to let the record show that there is no charge of mismanagement or corruption in the trustees' management?
"Mr. Renegar: That is right.
"Mr. Neathery: The Interveners' position is that there has been in this litigation a waste of trust funds.
"The Court: I know what you are going to say. I will incorporate that in my paragraph in my finding, that there is no dereliction of duty.
"In other words, your position is that the litigation has ensued and will continue to ensue, in your judgment, under the Massachusetts Trust and will result in losses to the estate?
"Mr. Neathery: Yes, sir, such as in Fort Worth, kicking out Mr. Thaxton, on his resigning.
* * * * *
"Mr. Brewster: Anybody else representing any intervener?
"We want to show by the trustees that we still have a large part of the shareholders who are not in Court, unless they are in by representation as a class.
"Now, there has been some discussion here, and I think I understand what is meant by the statement of the three gentlemen, Mr. Renegar, Mr. Neathery and Mr. Mattay, about the question of the conduct of these trustees, Hood and Shults.
"If I understand it correctly, the meaning of what has been stated in the record is that these trustees have done the best they could under the trust agreement, and whatever is lacking is the workability of the trust.
"The Court: I think it would be better to state that no one charges any mismanagement or corruption or neglect against the trustees.
"Mr. Neathery: That is correct.
"Mr. Mattay: We haven't changed that in our pleadings. I believe it was changed in either Mr. Hopkins' or Mr. Nelson's pleading, and I feel duty bound to say I believe their pleadings have charged something to that effect, but not affecting their honesty or anything like that.
"The Court: The Court will find against it if it is in there.
"Mr. Mattay: We don't charge it at all.
"Mr. Brewster: Do you intend to offer any evidence in support of any allegations against the present trustees?
"Mr. Mattay: No, sir."
| {
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409 F.Supp.2d 1060 (2006)
Garry Earl SHIDLER, Plaintiff,
v.
Robert MOORE, et al., Defendants.
No. 3:05-CV-804 AS.
United States District Court, N.D. Indiana, South Bend Division.
January 3, 2006.
*1061 *1062 *1063 *1064 Garry Earl Shidler, Bunker Hill, IN, pro se.
OPINION AND ORDER
ALLEN SHARP, Judge.
Garry Earl Shidler, a pro se prisoner, submitted a complaint under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. FED. R. CIV. PRO. 12(b)(6) provides for the dismissal of a complaint, or any portion of a complaint, for failure to state a claim upon which relief can be granted. Courts apply the same standard under § 1915A as when addressing a motion under Rule 12(b)(6). Weiss v. Cooley, 230 F.3d 1027 (7th Cir.2000).
A claim may be dismissed only if it appears beyond doubt that the plaintiff *1065 can prove no set of facts in support of his claim which would entitle him to relief. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Accordingly, pro se complaints are liberally construed.
In order to state a cause of action under 42 U.S.C. § 1983, the Supreme Court requires only two elements: First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of the right acted under color of state law. These elements may be put forth in a short and plain statement of the claim showing that the pleader is entitled to relief. FED.R.CIV.P. 8(a)(2). In reviewing the complaint on a motion to dismiss, no more is required from plaintiff's allegations of intent than what would satisfy Rule 8's notice pleading minimum and Rule 9(b)'s requirement that motive and intent be pleaded generally.
Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.2001) (citations, quotation marks and ellipsis omitted).
I. RELIGION CLAIMS
Mr. Shidler alleges that various defendants prevented him from practicing his religion. He alleges that these acts violated his rights under the First and Fourteenth Amendments as well as the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb.
A. First Amendment
Under the First Amendment, prisoners "retain the right to practice their religion to the extent that such practice is compatible with the legitimate penological demands of the state." Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir.1991). A prison regulation or policy that might otherwise unconstitutionally impinge on an inmate's First Amendment rights will survive a challenge if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) and O'Lone v. Estate of Shabazz, 482 U.S. 342, 353, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). "[T]he prison is entitled to curtail these rights to the extent necessary to protect security." Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (1988).
Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.
Whitley v. Albers, 475 U.S. 312, 321-322, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (citations, ellipsis, and quotation marks omitted). "The `free' exercise of religion thus is rather a misnomer in the prison setting." Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir.1988).
B. Fourteenth Amendment
The Fourteenth Amendment equal protection clause prohibits discrimination and requires the evenhanded treatment of all religions.
In providing [inmates the] opportunity [to practice their religion], the efforts of prison administrators, when assessed in their totality, must be evenhanded. Prisons cannot discriminate against a particular religion. The rights of inmates belonging to minority or non-traditional religions must be respected to the same degree as the rights of those belonging to larger and more traditional denominations. Of course, economic and, at times, security constraints may require that the needs of inmates adhering to one faith be accommodated differently from those adhering to another. Nevertheless, the treatment of all inmates must be qualitatively comparable. *1066 Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir.1991) (citations omitted). Though Mr. Shidler states generally that his rights under the Fourteenth Amendment were violated, the facts he alleges do not indicate that his religion was treated any differently, that similarly situated inmates of other religions were treated differently, or that he would have been treated differently if he had been attempting to practice a different religion. Therefore the Fourteenth Amendment is inapplicable and these claims will be dismissed.
C. RFRA and RLUIPA
RFRA was declared unconstitutional as applied to state and local governmental entities and their employees. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Nevertheless, the Congress subsequently enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) which provides that:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). Therefore, even though the RFRA claims will be dismissed, those same claims will be analyzed under RLUIPA instead.
RLUIPA does not define substantial burden, but in a case interpreting the land use provisions of RLUIPA, the Seventh Circuit has stated that
a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable.
Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). The statute defines religious exercise to "include any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7). Nevertheless, a substantial burden may be justified if it is the least restrictive means of furthering a compelling governmental interest.
We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.
. . .
Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. They anticipated that courts would apply the Act's standard with due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.
Cutter v. Wilkinson, ___ U.S. ___, 125 S.Ct. 2113, 2123, 161 L.Ed.2d 1020 (2005).
D. Individual and Official Capacity Claims
Mr. Shidler seeks to bring both individual and official capacity claims. "[A] suit against a[n] . . . official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The Eleventh *1067 Amendment precludes damage claims against States as well as official capacity defendants. Meadows v. State of Indiana, 854 F.2d 1068, 1069 (7th Cir.1988). Nevertheless, injunctive relief may be obtained from a person in his official capacity under the doctrine of Ex Parte Young. Holton v. Ind. Horse Racing Comm'n, 398 F.3d 928, 929 (7th Cir.2005).
E. The "P" and "N" Housing Units
Mr. Shidler alleges that he was housed on the "P" housing unit from April 25, 2004 until approximately July 31, 2004 when he was transferred to "N" housing unit, and that he was held there until approximately November 1, 2004 when he was transferred to the "E" housing unit. He alleges that all inmates in the "P" housing unit were denied communal worship. He does not mention why he was denied communal worship while he was in the "N" housing unit. Because he alleges that inmates in the "P" housing unit are no longer denied communal worship and because he is no longer housed in either the "P" or "N" housing units, these official capacity claims will be dismissed. Compare Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.1996) (When "a prisoner is transferred to another prison, his request for injunctive relief against officials of the first prison is moot unless he can demonstrate that he is likely to be retransferred." (Quotation marks and citations omitted.))
Though it is entirely possible that restricting communal worship in "P" and "N" housing units was reasonably related to legitimate penological interests and was necessary to protect security, giving Mr. Shidler the benefit of the inferences to which he is entitled at the pleading stage of this proceeding, he has stated a claim for monetary damages for a violation of the First Amendment.
Mr. Shidler does not allege that he suffered any physical injury.
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
42 U.S.C. § 1997e(e). Though it is clear that 42 U.S.C. § 1997e(e) does not restrict damages in a First Amendment constitutional claim,[1] it is unclear whether it precludes monetary damages in a statutory RLUIPA claim. To date, it does not appear that any federal court has published an opinion addressing this question. Therefore, giving Mr. Shidler the benefit of the inferences to which he is entitled at the pleading stage of this proceeding, he has stated a claim for monetary damages for a violation of RLUIPA related to the denial of communal worship while he was housed in both "P" and "N" housing units.
*1068 Having determined that these allegations state a claim, it is necessary to determine who is/are the proper defendant(s) for these claims. Mr. Shidler names Chaplain Babb, Grievance Specialist Sgt. Bowman, Unknown July 21, 2004 Grievance Committee Members 1-3, Administrative Assistant Chris Johnson, and Regional Director Linda VanNatta. The factual basis for naming all of these defendants is that they reviewed and responded to his grievance about the lack of communal worship for inmates located in the "P" housing unit.
Section 1983 creates a cause of action for damages based on personal liability. A person cannot be held liable under § 1983 unless the person was personally involved in the alleged wrongdoing. A plaintiff must allege facts showing the defendant's participation or direct responsibility for the conditions of which he complains, Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir.1996), by demonstrating a causal link between the defendant's conduct and the plaintiff's injury. Benson v. Cady, 761 F.2d 335, 339 (7th Cir.1985). Based on the factual allegations in this complaint, it is reasonable to infer that Chaplain Babb and Administrative Assistant Chris Johnson may have implemented, enforced, or could have lifted the restrictions on communal worship for Mr. Shidler while he was in either the "P" or "N" housing units. Such an inference is not reasonable for Grievance Specialist Sgt. Bowman, Unknown July 21, 2004 Grievance Committee Members 1-3, and Regional Director Linda VanNatta. The first four grievance officials, though they had actual knowledge of the restriction, were low level personnel who neither created the policy nor could they have changed it. Furthermore, unlike the minimal civilized measures of life's necessities,[2] the right to communal worship is not absolute and these low level grievance officials lacked the authority or responsibility to weigh competing institutional concerns. Rather they could merely implement established policies or address violations of them. Though a regional director is not a low level employee and does not lack either the authority or responsibility for such matters, the complaint and its attached grievance make clear that Linda VanNatta was only notified of the restrictions after they had already been lifted for the "P" housing unit and after he had been transferred out of it. Neither the facts alleged in the complaint, nor their reasonable inferences, support the allegation that she knew anything about the conditions in the "N" housing unit. Based on the facts alleged in this complaint, she lacked personal involvement in these claims and will therefore be dismissed.
F. Official Record of Religious Preference
Mr. Shidler alleges that since approximately November 1, 2004 when he was placed in the "E" housing unit, he has been denied the opportunity to participate in Islamic communal worship because he is officially listed as a Christian. He states that he was not a Christian and had never practiced the Christian religion. After filling out several forms, his record was changed on December 9, 2004.
Mr. Shidler does not contest the policy of limiting inmates to attending the religious programs of their listed religion. Rather, he only contests that his record was incorrect and, because he was unable to change it more quickly, he was prevented from engaging in communal worship during those 39 days. He does not allege that he was prohibited from changing his designated religion or that anyone prevented *1069 him or refused to change his record. Rather he merely alleges that for perhaps Kafkaesque, Byzantine, procedural reason he was delayed. This does not state a claim because there is no allegation of an intent to deny him access to communal worship and "[n]egligence on the part of an official does not violate the Constitution". Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir.2004).
G. Religious Name
Mr. Shidler alleges that he is not allowed to use his religious name to send or receive mail. Giving Mr. Shidler the benefit of the inferences to which he is entitled at the pleading stage of this proceeding, these allegations state a claim under both the First Amendment and RLUIPA for both monetary damages and injunctive relief. See Azeez v. Fairman, 795 F.2d 1296 (7th Cir.1986) and IND.CODE 34-28-2-1.5.
Having found a claim it is necessary to determine whether Mr. Shidler has named a proper defendant. Though he alleges that secretary R. Anderson notified him of this policy, a secretary is a low level employee who neither made nor could repeal this policy. Neither is it within a secretary's authority to weigh competing institutional interests to determine whether this was the least restrictive means of furthering those interests. Therefore R. Anderson will be dismissed. Based on this complaint, it is reasonable to infer that Mr. Shidler is alleging that Chaplain Babb and Administrative Assistant Chris Johnson were aware of and are enforcing this policy. Therefore he will be permitted to proceed with this claim against those two defendants in both their individual and official capacities.
H. Confiscation of Mail
Mr. Shidler alleges that he is being denied access to various religious materials which have been confiscated from his mail. The facts of this complaint do not contend that he is merely being denied religious materials; rather it contends that he is being denied mail addressed to any name other than his incarceration name and that packages of religious materials have been sent to his religious name. Based on the facts alleged in this complaint, it is a reasonable inference that the content of the packages is irrelevant. That is to say, he could not receive a package addressed to his religious name even if it contained non-religious property, but he could have received a package addressed to his incarceration name even if it had contained the very same religious items he alleges have been confiscated from his mail. Because the facts in this complaint do not support an allegation of an intent to deprive Mr. Shidler of access to religious property, this is merely a property claim, not a religion claim.
Though the Fourteenth Amendment provides that state officials shall not "deprive any person of life, liberty, or property, without due process of law", a state tort claims act that provides a method by which a person can seek reimbursement for the negligent loss or intentional deprivation of property meets the requirements of the due process clause by providing due process of law. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) ("For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable post deprivation remedy.") Indiana's tort claims act (INDIANA CODE § 34-13-3-1 et seq.) provides for state judicial review of property losses caused by government employees, and provides an adequate post-deprivation remedy to redress state officials' accidental or intentional deprivation of a person's *1070 property. Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.2001) ("Wynn has an adequate post-deprivation remedy in the Indiana Tort Claims Act, and no more process was due.") Therefore, even though Mr. Shidler may have a state tort claim for the confiscation of his property, he does not have a federal claim.
II. GRIEVANCE CLAIMS
Mr. Shidler alleges that he was denied the right to petition for a redress of grievances because they denied him access to the formal grievance process and did not respond to grievances that he filed. The Constitution does not require that a prison provide a formal grievance procedure nor adhere to their own procedures if they establish one. The violation of prison policy does not state a claim under § 1983. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.2001). "A citizen's right to petition the government does not guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen's views." Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.1999). "[T]he First Amendment right to petition the government for a redress of grievances protects a person's right to complain to the government that the government has wronged him, but it does not require that a government official respond to the grievance." Jones v. Brown, 300 F.Supp. 2nd 674, 679 (N.D.Ind.2003). Therefore these claims will be dismissed.
III. DENIAL OF ACCESS TO THE COURTS
Mr. Shidler alleges that he was denied access to the courts because he was denied access to the law library on many different occasions and because his legal materials were confiscated. There is no "abstract, freestanding right to a law library . . . [and] an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Supreme Court repudiated language in earlier case law and explained that state actors have no duty to assure that prisoners can litigate claims effectively once they have been raised in court. The right to access, goes no further than access.
It must be acknowledged that several statements in Bounds went beyond the right of access recognized in the earlier cases on which it relied, which was a right to bring to court a grievance that the inmate wished to present. . . . These statements appear to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court. . . . These elaborations upon the right of access to the courts have no antecedent in our pre-Bounds cases, and we now disclaim them.
Lewis v. Casey, 518 U.S. at 354, 116 S.Ct. 2174. Lewis only requires that an inmate be given access to file a complaint or appeal, but state actors have no duty to assure that prisoners can litigate those claims effectively once they have been raised in court. That is to say, Lewis does not require that Mr. Shidler ever be permitted access to the law library, only that he be permitted to file a complaint or appeal.
Mr. Shidler does not allege, and based on his complaint and its attachments it would not be reasonable to infer, that he was denied the opportunity to file a complaint or appeal. Because he remained able to write to the court, he remained able to file a complaint, file an appeal, seek additional time to file or respond to motions, and request appointment of counsel. Though he alleges that he was denied copies, *1071 he does not allege that he was unable to send a single original stating that he was unable to obtain copies, therefore he was not denied access to the court. Though he alleges that he voluntarily dismissed a claim without prejudice because he was unable to litigate it effectively, the defendants have no obligation to empower him to litigate effectively. Finally, the confiscation of legal paperwork is merely a property loss if the papers are replaceable. Hossman v. Spradlin, 812 F.2d at 1022. Mr. Shidler does not allege, and based on this complaint it would not be reasonable to infer, that any unreturned legal papers were not otherwise replaceable. Therefore these claims will be dismissed.
IV. PRELIMINARY INJUNCTION
Along with his complaint, Mr. Shidler also seeks a temporary restraining order and preliminary injunction which would require the defendants to provide him access to all Islamic count letters; three hours a week in the law library; the ability to use his religious name on mail; and limitations on searches of his cell and seizures of his property.
A party seeking to obtain a preliminary injunction must demonstrate: (1) its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists; and (3) it will suffer irreparable harm if the injunction is not granted.
Ty v. The Jones Group, 237 F.3d 891, 895 (7th Cir.2001).
All of the underlying claims in the complaint related to these injunctive requests have been dismissed in this screening order except for the one related to the use of a religious name on mail. For those dismissed claims, no injunctive relief is possible because Mr. Shidler has no chance of success on the merits on those claims. As for the use of his religious name on his mail: his likelihood of success on the merits is tenuous; if he is successful he can receive monetary compensation for this restriction (though it may be limited to nominal damages of $1.00); and he will not suffer irreparable harm because he retains access to the mail with his incarceration name and he does not allege that he is restricted from using his religious name inside his mail, only on the mailing label. Therefore the request for a TRO and a preliminary injunction will be denied.
V. CONCLUSION
For the foregoing reasons, the court:
(1) GRANTS Garry Earl Shidler leave to proceed against Chaplain Babb and Administrative Assistant Chris Johnson in their individual capacities for monetary damages for violations of both the First Amendment free exercise of religion clause and RLUIPA (42 U.S.C. § 2000cc-1) for denying him communal worship from April 25, 2004 until approximately November 1, 2004 while he lived in "P" and "N" housing units;
(2) GRANTS Garry Earl Shidler leave to proceed against Chaplain Babb and Administrative Assistant Chris Johnson in their individual capacities for monetary damages, and in their official capacities for injunctive relief, for violations of both the free exercise clause of the First Amendment and RLUIPA (42 U.S.C. § 2000cc-1) for denying him the ability to use his religious name to send or receive mail;
(3) DENIES the request for a TRO and preliminary injunction (docket #3);
(4) DISMISSES all other claims;
(5) DISMISSES Librarian Robert Moore, Grievance Specialist Sgt. Bowman, Assistant Superintendent Bruce Helming, Grievance Specialist K. Wright, Assistant to Superintendent Amy Clark, Chaplain Leslie, Counselor Kara Jones, Regional Director Linda VanNatta, Secretary R. *1072 Anderson, Correctional Officer Dennen, Administrative Assistant Lester Jeffries, Lt. Wagstaff, Correctional Officer Linville, Grievance Specialist Sgt. Duncan, Counselor D. Mann, 7-21-04 Grievance Committee Member John Doe 1, 7-21-04 Grievance Committee Member John Doe 2, 7-21-04 Grievance Committee Member John Doe 3, 9-7-05 Grievance Committee Member John Doe 4, 9-7-05 Grievance Committee Member John Doe 5, 9-7-05 Grievance Committee Member John Doe 6, Correctional Officer Fewell, Assistant Superintendent Sally Stevenson, Librarian Dr. B. Kasper, Superintendent John VanNatta, Counselor T. Heishman, and Case Work Manager T. Pretorious;
(6) DIRECTS the clerk to transmit the summons and USM-285 for Chaplain Babb and Administrative Assistant Chris Johnson to the United States Marshals Service along with a copy of this order and a copy of the complaint;
(7) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to effect service of process on Chaplain Babb and Administrative Assistant Chris Johnson; and
(8) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Chaplain Babb and Administrative Assistant Chris Johnson respond, as provided for in the Federal Rules of Civil Procedure and N.D. IND. L.R. 10.1, only to the claims for which the plaintiff has been granted leave to proceed in this screening order.
IT IS SO ORDERED.
NOTES
[1] We agree that, absent a showing of physical injury, § 1997e(e) would bar a prisoner's recovery of compensatory damages for mental and emotional injury. But if that same prisoner alleges some other type of non-physical injury, the statute would not foreclose recovery, assuming that the damages sought were not "for" any mental or emotional injuries suffered. This view is not novel. Indeed, in the context of First Amendment claims, we have held explicitly that prisoners need not allege a physical injury to recover damages because the deprivation of the constitutional right is itself a cognizable injury, regardless of any resulting mental or emotional injury. Using a similar rationale, several of our sister circuits have concluded that § 1997e(e) does not bar all recovery for violations of due process or the right to privacy. These decisions reflect an emerging view that § 1997e(e), as the plain language of the statute would suggest, limits recovery "for mental and emotional injury," but leaves unaffected claims for nominal and punitive damages, which seek to remedy a different type of injury.
Calhoun v. DeTella, 319 F.3d 936, 940-41 (7th Cir.2003) (Quotation marks, square brackets, and citations omitted).
[2] See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
| {
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456 F.Supp. 590 (1978)
Ann M. McKENZIE, Plaintiff,
v.
Howard H. CALLOWAY et al., Defendants.
Civ. A. No. 4-71776.
United States District Court, E. D. Michigan, S. D.
April 27, 1978.
On Motions for Summary Judgment June 19, 1978.
*591 *592 Fred W. Gerow, Southfield, Mich., for plaintiff.
L. Michael Wicks, Asst. U. S. Atty., Detroit, Mich., for defendants.
MEMORANDUM OPINION AND ORDER REGARDING THE COURT'S SCOPE OF REVIEW
PHILIP PRATT, District Judge.
Plaintiff was employed as a Secretary-Steno, Grade GS-6, at the U.S. Army Tank Automotive Command in Warren, Michigan in 1972. Because of personnel reductions plaintiff was reassigned as a GS-6 Secretary to the Research Development and Engineering Directorate of the Combat Vehicle Systems Development Office in June, 1972. The functions of the Directorate were effectively transferred to the XM 815 Tank System in July, 1972. When the new project manager, General Robert J. Baer, assumed his duties provisionally in late July, plaintiff began to serve as his Secretary.
As part of his start-up procedures, General Baer requested two secretaries. Pursuant to applicable regulations, the Army approved this request. Although General Baer had requested GS-7 and GS-8 secretaries, one was approved at the GS-6 level and the other at the level of GS-7. Plaintiff was the only individual serving as a Secretary to General Baer from late July, 1972 until June, 1973 when Mrs. Mildred *593 Cameron, a black woman, was appointed to fill the GS-7 position. Plaintiff was aggrieved by this appointment since she had assumed for many months that she was entitled to occupy the GS-7 secretarial position in the office. Upon learning of this new assignment plaintiff filed an administrative complaint. She also began proceedings before the Army's Equal Employment section alleging racial and sexual discrimination. After all her administrative appeals were denied, plaintiff brought suit in this Court alleging that the Army's failure to promote her to the GS-7 position in General Baer's office was improper under both traditional precepts of administrative law and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.[1]
Plaintiff's complaint is cast in three counts. Count I alleges that the defendants' failure to promote her to the GS-7 position amounted to an unlawful deprivation of property without due process of law. Specifically the plaintiff claims that the Army's decision was not supported by substantial evidence, was arbitrary and that the administrative hearings were defective because of a lack of an impartial decision-maker and a fair and competent investigation. In Count II plaintiff claims that the Army is estopped from denying her the promotion which she seeks because of its failure to follow its own regulations. Count III of the complaint alleges that plaintiff was the victim of unlawful "reverse discrimination". The complaint seeks injunctive and declaratory relief, damages and attorneys' fees.
The defendants have filed an extensive motion to dismiss or, in the alternative, for summary judgment. Plaintiff has responded by opposing the government's motion and moving on her own behalf for summary judgment. In reviewing the pleadings it became obvious to the Court that before it could address the merits of either party's position it must first determine both its jurisdiction and the proper scope of review to apply to Counts I and II.[2] To assist in that regard the Court has asked the parties to submit supplemental briefs limited to those questions.
The government has conceded the propriety of the Court's jurisdiction. There remains for decision, however, the scope of review issue. The government maintains that the Court is limited to reviewing the administrative record to determine whether there has been a procedural error or some arbitrary determination. The plaintiff contends that the Court is required to treat the matter de novo and find the facts afresh. Once this issue is resolved, the litigation may move forward in a more orderly fashion. The question is of critical importance because, as an examination of the pleadings show, the parties have substantial differences of opinion as to what the relevant facts are. Since the parties have waived oral argument the matter is ripe for determination based on the original and supplemental briefs that have been filed.
A careful reading of Counts I and II of the complaint shows that they seek a review of the propriety of certain administrative actions. Plaintiff did not receive a promotion which she believes the defendants were obligated to confer upon her under the relevant regulations. She asks the Court to set aside this erroneous action and order corrective measures. In the overwhelming majority of administrative law cases, a court is limited in its review of agency determinations to an examination of the administrative record. Where the governing law was correctly interpreted, the proper procedures were complied with, and the agency decision was supported by substantial *594 evidence and was not arbitrary or capricious, a court will not set aside administrative action even where it may have decided the factual issues differently. E. g., Polcover v. Secretary of the Treasury, 155 U.S.App.D.C. 338, 477 F.2d 1223 (1973), cert. denied 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973); Halsey v. Nitze, 390 F.2d 142 (3rd Cir. 1968), cert. denied 392 U.S. 939, 88 S.Ct. 2316, 20 L.Ed.2d 1399 (1968); Fass v. Ruegg, 379 F.2d 216 (6th Cir. 1967). Jammer v. U. S., 438 F.Supp. 1087 (E.D.Mo.1977).[3] The foregoing cases make clear that in the course of such review a district court may not undertake a de novo review of the administrative decision. The Court is strictly limited to a review of the administrative record.
The most recent explication of these principles is found in Doe v. Hampton, 184 U.S.App.D.C. 273, 566 F.2d 265 (1977), a case relied upon by the plaintiff. There a clerk-typist was dismissed from her civil service job because of alleged mental instability. The plaintiff there challenged the validity of the dismissal and the District of Columbia Court of Appeals ordered a remand of the case for further administrative factfinding. In the course of its opinion the court spoke directly to the issue presented here:
". . . it is reasonably well-settled that, whatever its exact scope, judicial review in the federal courts is necessarily limited. Federal judges do not sit as ombudsmen for government employment relations, nor do we indulge the conceit of substituting our own judgment ad libitum for that of the agency. Rather, we concern ourselves in the personnel business only insofar as necessary to assure that the action challenged (1) is not arbitrary or capricious; (2) was reached in conformity with relevant procedural requirements; and (3) was not otherwise unconstitutional.
"Our review, as that of the district court before us, is limited to scrutinizing the administrative record accreted as the adverse action proceeds along its tortuous course up through the various levels of appeal. No de novo hearing is held." Id. at 279, 566 F.2d at 271-2.
The plaintiff argues that this limited standard of review is inappropriate in view of the Administrative Procedures Act. In pertinent part the Act provides that:
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
(1) compel agency action unlawfully held or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) contrary to constitutional rights, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority or limitation, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court."
5 U.S.C. § 706.
Plaintiff argues that the provisions of 5 U.S.C. § 706(2)(E) and (F) compel the Court to hear this matter de novo.
This argument is unavailing. In the first instance, it is clear that § 706(2)(E) does not call for de novo review. Rather it calls for a traditional, limited review of the *595 administrative record. The plain language of subsection 2(E) refers to cases "reviewed on the record of an agency hearing." Secondly, § 706(2)(F) is not itself authority for taking testimony de novo. Subsection 2(F) instructs the Court that it must set aside agency action unwarranted by the facts only "to the extent the facts are subject to trial de novo . . ." Clearly enough this language presupposes that there be some independent statutory authority authorizing a de novo hearing before subsection 2(F) can be brought to bear. This conclusion is buttressed by the fact that subsections (E) and (F) are narrower in scope than subsections (A)-(D). Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Citizens to Preserve Overton Park is not, as plaintiff contends, precedent for holding de novo hearings in cases of the type at bar. Citizens to Preserve Overton Park involved a quasi-legislative determination by the Secretary of Transportation that was alleged to have been made in violation of statutory requirements for parkland preservation in federal highway construction. The Supreme Court remanded the case to the district court so that it could consider the full administrative record that was before the Secretary of Transportation at the time he made his decision. Id. at 420, 91 S.Ct. 814. The case at bar presents no analogue to the facts or holding of Citizens to Preserve Overton Park.
Plaintiff also contends that she has an independent cause of action arising under the Fifth Amendment which entitles her to a trial de novo on the claims set forth in Counts I and II. This argument rests on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In that case the Supreme Court held that a victim of a warrantless search conducted by federal agents under color of office had an action for damages because of the violation of their Fourth Amendment right to be free from unreasonable search and seizure. The Court rejected the government's claim that victims of illegal searches were relegated to any state law remedies that might exist. Reasoning from Bivens, plaintiff argues here that she had a property interest in the promotion she seeks; she was denied that promotion because of the administrative agency's unlawful activity; and that, therefore, she is entitled to a remedy for the denial of her due process rights.
It is true, as plaintiff argues, that the Bivens implication of a constitutional tort has been extended to both First Amendment torts, Yiamouyiannis v. Chemical Abstracts Services, 521 F.2d 1392 (6th Cir. 1975), and Fifth Amendment torts. Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928 (9th Cir. 1977); States Marine Lines Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974); U. S. ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972); Hill v. McMartin, 432 F.Supp. 99 (E.D.Mich.1977). However, neither the Bivens reasoning nor these lower court opinions compel the result plaintiff desires. Each of the previously cited cases is distinguishable from the salient facts of the case at bar. None of these cases, or any other cited to the Court, involve a federal agency held accountable for the deprivation of a constitutional right under the Fifth Amendment. Jacobson, for example, concerned the effect of action taken by a regional planning agency created by an interstate compact. Hill v. McMartin was a lawsuit against the United States and several police and I.R.S. officers to recover funds seized during a warrantless automobile search.[4]States Marine Lines was a suit for consequential damages following improper seizure of imported goods. Moore was a suit against F.B.I. agents and an Assistant U.S. Attorney for conspiracy to violate civil rights.
More significant however is the fact that the Court finds clear Congressional intent not to imply an independent cause of action against an administrative agency for deprivation *596 of constitutional right. In Bivens the Supreme Court observed that:
"The present case involves no special factors counselling hesitation in the absence of affirmative action by Congress."
403 U.S. at 396, 91 S.Ct. at 2004.
This same theme was sounded in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). There the Court considered whether to imply a private cause of action from a federal statute. The Court concluded that one important factor to consider is whether it is consistent with Congress' intent to imply a private remedy in the absence of specific Congressional language authorizing one.[5] See Bivens, supra, 403 U.S. at 402, 91 S.Ct. 1999 (Harlan, J., concurring). While there are significant differences between Constitutional and statutory rights, the Court concludes that when it engages in the peculiarly judicial task of deciding whether Congress meant by implication to add to the federal courts' limited jurisdiction, it must be mindful of the range of Congressional enactments.[6]
Examining the facts of this case the Court is satisfied, to paraphrase Mr. Justice Harlan, that no independent constitutional tort is necessary to effectuate the plaintiff's constitutional rights. More importantly the Administrative Procedure Act, 5 U.S.C. § 706, specifically sets forth the remedy Congress has provided for persons in plaintiff's position. Congress has directed that the Court's inquiry into agency respect for employee's due process rights be based upon the administrative record. In accordance with well established procedures, this Court may not deprive the administrative agency of the deference which Congress has conferred upon it.
The Court finds that as to Counts I and II of the complaint, its review is limited to an examination of the administrative record to determine whether
(1) the agency followed its own procedures;
(2) the laws were interpreted correctly;
(3) the decision was not unconstitutional;
(4) the action was supported by substantial evidence and was not arbitrary and capricious.[7]
Having decided the issue of the standard to apply to the motion for summary judgment, the Court will require the parties to appear on May 15, 1978 at 9:30 a. m. for oral argument on the pending motions. All issues raised in either party's motion, whether directed at Counts I, II or III will be heard at that time.
IT IS SO ORDERED.
ON MOTIONS FOR SUMMARY JUDGMENT
The arguments of those social critics who criticize the federal bureaucracy for being engulfed in red tape and a maze of regulations would be considerably bolstered by a close examination of the case at bar. The *597 administrative record in this matter discloses that in the spring of 1972 plaintiff was employed as a secretary, in the GS-6 classification, to the Chief of Plans and Operations Division of a tank development program at the United States Army Tank Automotive Command in Warren, Michigan. This particular unit was disestablished and plaintiff was reassigned to another GS-6 secretarial position in the Combat Vehicle Systems Development Office as part of a reduction in force on June 29, 1972.
On July 18, 1972, the Combat Vehicle Systems Development Office finished its work and was disbanded. Most employees displaced by this termination were reassigned within the Tank Automotive Command. The functions of the Combat Vehicle Systems Development Office were effectively assumed by the new XM-815 tank project. General Robert Baer was appointed as provisional manager for the XM-815 tank project in late July and his appointment became permanent on September 1, 1972. As a regular part of General Baer's initial duties he submitted a plan for the organization and staffing of the project called a Table of Distribution and Allowances (TDA). The General's proposed TDA called for himself, as director, his deputy, Colonel William Grant, and executive officer Major Jerry Garrett and two secretaries. General Baer requested that one secretary be assigned a GS-8 rating and the other secretary be assigned a GS-7 rating. The Army approved General Baer's proposed TDA as submitted with the exception of the secretarial positions which were each reduced one grade. When finally approved the GS-7 job was assigned number 11875 and the GS-6 position number 11878.
During the period from July 18, 1972 to December 10, 1972, plaintiff was the sole secretary working at the unit. It appears, as well, that during this time plaintiff was still working under her appointment to the Combat Vehicle Systems Development Office. On December 10, 1972, plaintiff received a Civil Service Commission Form SF-50 notification of personnel action, officially placing plaintiff in job number 11878, grade GS-6. The SF-50 form contained the notation "AMCPM-GCM" in the section headed "remarks." In response to this appointment General Baer sought to have plaintiff promoted into the GS-7 position. In April, 1973, after it was clear that the Army either would or could not promote plaintiff without fully competitive procedures, General Baer simultaneously requested that a competitive recruitment action be undertaken to fill the vacant GS-7 position and that plaintiff be given a temporary, non-competitive promotion to fill that position until a permanent selection could be made.
Neither of General Baer's requests were acted upon, however, because Mildred Cameron, a Black secretary with a GS-7 rating, who was just terminated as a secretary in the Office of the Commanding General, Tank Automotive Command, as a result of reduction in force, was assigned to the vacant position in General Baer's office. Ms. Cameron's appointment became official on June 30, 1973. Upon learning that another individual was going to be assigned to the job she considered to be hers, plaintiff embarked upon what has proven to be a lengthy series of appeals to secure official appointment to job number 11875, GS-7, secretary to General Baer.
On May 7 and 9, 1973, plaintiff's representative met with the unit's Civilian Personnel Officer, George Blakeslee, in an effort to resolve her complaint. These discussions failed to produce a result satisfactory to the plaintiff and on May 14, 1973, she filed a formal grievance with the Department of the Army. After the grievance was filed, General Baer and the Civilian Personnel Officer met with plaintiff's representative to offer her a temporary 60-day promotion to settle the grievance. The plaintiff's representative rejected this offer.
Plaintiff then requested that a grievance examiner be assigned to the case. Jo Ann Graham was assigned to come to the Tank Automotive Command in Warren to investigate the grievance. Plaintiff also asked for an evidentiary hearing at which she could present 19 witnesses. This request was denied *598 by the grievance examiner who chose instead to rely upon documentary material. The grievance examiner considered plaintiff's procedural and substantive claims. On August 29, 1973, the examiner issued her 13 page report recommending that the grievance be denied and that plaintiff be given credit in her personnel folder for the experience gained while she was the single secretary in the XM-815 project office. Slightly less than one month later, General Baer accepted the report and denied the grievance.
After filing her grievance with the Department of the Army, but prior to the issuance of the grievance examiner's report, plaintiff filed an appeal with the Chicago Regional Office of the U. S. Civil Service Commission, challenging the propriety of the reduction-in-force action which led to the placement of Ms. Cameron in General Baer's office. Briefly, plaintiff alleged that the reduction-in-force was (1) a reduction in her rank without adequate notice, (2) was improper, and (3) was taken without due regard to her equitable right to hold the position she had fulfilled for so many months. The Regional Office denied plaintiff's appeal. Plaintiff then sought relief from the Civil Service Commission's Appeals Review Board which held that since plaintiff had never been officially appointed to the GS-7 position, the Board was without jurisdiction to determine her claim that she had been improperly deprived of it.
On October 16, 1973, plaintiff filed a complaint with the Army's Equal Opportunity Counselor alleging that the appointment of Ms. Cameron to the GS-7 position in the XM-815 project office (by that time known as the XM-1 project) subjected plaintiff to race and sex discrimination. Some of the details of the events resulting from this EEO complaint are in dispute. However, it is agreed that the counselor engaged in a preliminary investigation (the character of which was unsatisfactory to plaintiff), advised plaintiff that he thought her chances of prevailing were poor and asked plaintiff whether she desired to proceed. Plaintiff requested that informal proceedings continue. When these informal measures proved fruitless, plaintiff filed a formal complaint of discrimination with the Army on January 15, 1974. On January 24, 1974, the Army asked for clarification of plaintiff's complaint. On February 4, 1974, the Equal Employment Opportunity Officer at the Tank Automotive Command requested the Army Civilian Appellate Review Office to assign a hearing examiner to the case. On April 23, 1974, James Bage, Acting Director of the Equal Employment Opportunity, Department of the Army, directed that plaintiff's Equal Employment Opportunity complaint be dismissed without further investigation. Plaintiff was notified of this determination on May 7, 1974. This lawsuit followed in timely fashion.
Plaintiff's complaint is cast in three counts. Count I alleges that the Army's denial of her request for the promotion to the GS-7 position deprived her of due process of law both as to the fact of the denial and the manner in which her administrative appeal was processed. In great detail the plaintiff describes the ways in which she believes the defendants' decision was neither supported by substantial evidence nor reached in an appropriate fashion. Count II contends that the Army must be estopped from denying her the promotion she desires because of its failure to follow various administrative regulations. Count III alleges that the plaintiff was the victim of unlawful sex and race discrimination. Plaintiff requests an injunction directing her immediate promotion to GS-7, the position she believes is rightfully hers, back pay and attorneys' fees.
The defendants have filed a comprehensive motion to dismiss Count III of the complaint. Defendants have also sought dismissal of the first two counts, or in the alternative, summary judgment. Plaintiff has responded by opposing the motions and moving on her own behalf for summary judgment. With respect to the first two counts of the complaint the Court ruled on April 27, 1978 that it was limited to reviewing the administrative record to determine whether,
(1) the Army followed its own procedures;
*599 (2) in reaching its decision all issues of law were decided correctly;
(3) the Army's decision was constitutionally infirm;
(4) the agency's action was supported by substantial evidence and was not arbitrary and capricious.[1]
The Court's consideration of Count III, of course, is not so limited because it is brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.
I. REVIEW OF THE AGENCY ACTION
A. Adherence to Agency Regulations
Plaintiff's first set of challenges to the Army's processing of her grievance is directed at the activities of the Civilian Personnel Officer (CPO), George Blakeslee.[2] Specifically plaintiff contends that the CPO acted improperly by attempting to settle her grievance with her directly instead of through her designated representative and by making various decisions for General Baer. The Court finds nothing in the record to suggest any impropriety which would impugn the fairness of the Army's proceedings. Plaintiff has not demonstrated that there is a duty on those federal employees trying to conciliate a grievance not to speak directly with one who has a representative. The pertinent Civil Service regulations, FPM Chapter 771.1-5 provides that:
"An employee has the right . . . to be accompanied, represented, and advised by a representative of his choice at any stage of the proceedings."
The analogous Army regulation, CPR 771.C-5(b)(1) contains similar language which makes no mention of duties imposed on federal employees with respect to represented grievants. The regulations do not forbid contact between a representative of the agency and the grievant. There is no reason to suppose that either the Civil Service Commission or the Army intended to burden what is clearly intended to be an expeditious, uncomplicated dispute resolution system with the accoutrements of the lawyers' Code of Professional Responsibility. See CPR 700 (Ch. 11) 771.C-1(b). Moreover, the Court notes that plaintiff suffered no prejudice as a result of the challenged conduct. She had a right not to speak with any of the defendants' agents without the presence of her representative. So far as the record indicates she exercised that right without reprisal. To suggest that any and every effort by a civilian personnel officer to resolve a dispute at the early stages invalidates subsequent agency proceedings is hardly an acceptable proposition. Absent some showing that the conduct led to action by the plaintiff which materially affected the outcome of the agency's administrative proceedings, the Court must conclude that this allegation lacks merit.
Plaintiff also challenges the validity of the agency's proceedings on the ground that the Civilian Personnel Officer in fact made the decisions attributed to General Baer. Plaintiff's argument is entirely circumstantial. She reasons that because the CPO's settlement suggestions of early May were incorporated in General Baer's offer of settlement by temporary promotion made on June 6, 1973 (Ex. 3, Incl. 2), the General simply abdicated his responsibility. This claim, as well as other vague assertions alleging impropriety growing out of the professional relationship between the CPO and General Baer, is without merit. There has been no showing in the record or otherwise of any improper conduct. The relevant papers are signed by the General. The Court finds that absent some evidentiary showing to the contrary, an officer of the Army who signs recommendations or offers of settlement is taken to have made the relevant decisions independently. See Citizens to Preserve Overton Park v. Volpe, 401 *600 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The mere fact that a particular decision happens to coincide with a recommendation made by his Civilian Personnel Office is neither suspect nor cause to upset administrative proceedings.[3] This is so even though the CPO may be designated in some instances to "act for" an Army officer in personnel matters. In this case the record is clear that General Baer considered and decided the matters himself.
Plaintiff also argues that under the applicable regulations her grievance should have been heard initially by the Commander of the U. S. Army Material Command in Washington instead of General Baer. Plaintiff's argument rests upon CPR 200 (Ch. 18) 254.2-5(g)(1), from which she extracts language repeated in CPR 700 (Ch. 11) 771.C-7(c)[4] that
"Grievances and appeals on adverse action from employees in an activity receiving civilian personnel management services from an activity reporting to another major commander will be forwarded to the major commander having jurisdiction over the serviced activity."
Using this language as her starting point, plaintiff notes that General Baer's Civilian Personnel Officer was providing service by a written contract,[5] and concludes that the grievance should have gone to the major commander of the serviced activity for resolution.
The Civil Service regulations require all federal departments to adopt formal and informal procedures to resolve employment problems. 5 CFR § 771.112. These procedures are to be structured so that at each level there is no duplication of decision-makers. 5 CFR § 771.116(a). The Department of the Army adopted a three-step procedure in CPR 700 (Ch. 11) 771.C-8. The first two steps of the Army's grievance procedure provide for informal meetings between the grievant and her supervisor or next-higher supervisor, always preserving the commanding officer as separate from this process so that he may serve as the deciding official in the third step, or formal, proceeding. CPR 700 (Ch. 11) 771.C-8(d)-(f). Where a grievance stems from a reduction-in-force action, as was the case here, the first two steps of the grievance procedure may be omitted, and the grievance may be initiated at Step 3. CPR 700 (Ch. 11) 771.C-8(c)(5)(c).
The difficulty in the present case arises because the dispute in issue involves the identity of plaintiff's immediate supervisor. Plaintiff argues that she was entitled to the GS-7 position and thus her immediate supervisor was General Baer. The Army claims that she was in the GS-6 position and her supervisor was Colonel Grant. The distinction is significant because, under CPR 200 (Ch. 18) 254.2(g)(1), which governs servicing agreements such as the one which enabled Mr. Blakeslee to act as CPO to General Baer,
"The provisions of CPR 700, Chapter 771, Appendix C, will be applied to both servicing and serviced activities . . . Grievances and appeals requiring a higher decision level will be forwarded to the major Army commander having jurisdiction over the serviced activity. Grievances involving interpretations of regulations will be forwarded through channels to the major Army commander having jurisdiction over the servicing activity."
If General Baer is the plaintiff's immediate supervisor then of course he would be both the step 1 and step 3 deciding official and reference to a "higher level" would be necessary to preserve the independence factors built into the grievance system. If plaintiff was properly characterized as reporting directly to Colonel Grant, then General Baer was the proper step 3 deciding official and the Army did comply substantially with the *601 regulations since the matter could properly be initiated at step 3. The grievance examiner found that plaintiff's immediate supervisor was in fact Colonel Grant, and for the reasons that follow the Court is persuaded that she was correct.[6] The Court notes however that here again plaintiff has failed to demonstrate that she suffered any prejudice by the activities she complained of. In his capacity as deciding official General Baer called for an investigation by an independent grievance examiner in accordance with CPR 700 (Ch. 11) 771.C-8(f)(2). This is precisely what could have been expected of the Army Material Command, to which plaintiff wanted to appeal. Moreover, the record indicates that General Baer, who ultimately accepted the findings of the grievance examiner, was positively disposed to plaintiff with whom he enjoyed a good working relationship. Thus, plaintiff's claims here, as elsewhere, seems to exalt form over substance. The regulations require a fair and impartial decision. Plaintiff got it. Under these facts and the applicable regulations she received that determination in the appropriate forum. This claim is, therefore, without merit.
Lastly, plaintiff complains of numerous defects in the conduct of the investigation by the hearing examiner. Essentially the plaintiff argues that the hearing examiner erred in failing to conduct a more wide-ranging investigation which included the taking of testimony.
The Civil Service Commission has adopted regulations which address themselves to the conduct of examinations of this type. In 5 CFR § 771.116(d) the Commission said that
"The examiner shall conduct an inquiry of a nature and scope appropriate to the issues involved in the grievance. At the examiner's discretion, the inquiry may consist of:
(1) The securing of documentary evidence;
(2) Personal interviews;
(3) A group meeting;
(4) A hearing; or
(5) Any combination of subparagraphs (1) through (4) of this paragraph." (Emphasis supplied).
The Army regulation on this subject substantially tracks this language. 700 CPR (Ch. 11) 771.C-13(a)(1).
As is plain, the regulations invest considerable discretion in the hearing examiner to determine the type of investigation that should be conducted. In this case the hearing examiner secured the relevant documentary evidence. In light of the voluminous record in this action, which includes the extensive recitations of the positions of the plaintiff on the numerous issues, the Court finds there was no abuse of discretion in denying plaintiff's request for a hearing.[7]
B. Sufficiency of the Evidence
The grievance examiner considered and rejected several theories propounded by plaintiff to show that she was entitled under the regulations to a promotion to the GS-7 job. The hearing examiner concluded, and General Baer adopted as his own findings, that
(1) plaintiff had been officially assigned to position number 11878, GS-6;
(2) plaintiff served in a dual capacity for many months while she was the only secretary in the unit and was entitled to receive credit in her personnel folder for this service;
*602 (3) no basis for retroactive, noncompetitive promotion to the GS-7 position existed by virtue of reduction-in-force action, job accretion or upgrading; and
(4) no reduction in rank occurred and therefore no adverse action proceedings were required.
Plaintiff now argues that the record does not support those determinations.
1. Retroactive Noncompetitive Promotion.
Since its inception the Civil Service Commission has sought to protect the integrity of public employment by requiring open, competitive procedures for the appointment of federal employees. In some circumstances, noncompetitive procedures may be used to fill Civil Service vacancies. Plaintiff contends that the grievance examiner erred in not ordering her promotion under one of those exceptions.
Two closely related exceptions to the merit promotion requirement are known as "job accretion" and "upgrading" of a position without any significant changes in duties. In the Federal Personnel Manual (FPM) 335.4-2(d) the Commission stated that:
"An agency may make a career promotion of an employee whose position is reconstituted in a higher grade because of the accretion of additional duties and responsibilities if the accretion was not the result of planned management action."
The grievance examiner found that the plaintiff did not meet the requirements of this section. The Court agrees.
The pertinent regulation goes on to say that:
"To be eligible for career promotion when [her] position is upgraded under these conditions, an employee must continue to perform the same basic function and [her] former position must be absorbed administratively in the new one. When an additional position is created, or when the new position is not a clear successor to the former position, career promotion may not be made."
Plainly enough, plaintiff cannot qualify for noncompetitive promotion under this section. While plaintiff did perform as the only secretary in the unit for several months, her position was not absorbed administratively into a new position. At all times the unit was slotted for two secretarial staff members. The existence of the unfilled GS-7 position, automatically eliminates job accretion as a realistic possibility for plaintiff's advancement.
In FPM 335.4-3(b) the Commission indicates that
"An agency must provide for an exception to competitive promotion procedures to allow for the promotion of an incumbent of a position which has been upgraded without significant change in duties and responsibilities on the basis of either the issuance of a new classification standard or the correction of a classification error."
Here again, plaintiff cannot meet the requirements of the rule. There was neither a new classification standard which upgraded the category of plaintiff's work, nor was there any indication in the record that there was a classification error in plaintiff's case. In reaching this conclusion the Court bears in mind that it
"may not grant promotions where the exercise of such power would result in substitution of the court's judgment for executive agency discretion. Our power, if any, to grant promotions and corresponding back pay hinges upon a party's legal entitlement to such a remedy based on a statute or regulation."
Skrobot v. U. S., 534 F.2d 237, 208 Ct.Cl. 435 (1975) (citations omitted).
A plaintiff complaining of an agency failure to promote her bears a heavy burden to demonstrate that the administrative decision not to grant promotion is contrary to the strict terms of statute or regulation. In this instance plaintiff has not met that burden.
Plaintiff also argues that the action of the Army in terminating her Combat Vehicle Systems Development unit and reassigning her to the XM-815 project was a reduction-in-force *603 which entitled her to noncompetitive promotion. TACOM Regulation 600-5.15-15(c).[8] In the first instance, the Court notes that the regulation which plaintiff relies upon is discretionary, not mandatory. The Court is loathe to upset the decision of the agency which has been assigned that task on the showing made here. More significantly, however, the Court believes that this regulation is inapplicable. FPM 351.2-6(a) states that
"For reduction-in-force purposes, a reorganization occurs when management at any level adds to, takes from, or redistributes the functions or duties on one or more positions. When a reorganization is the cause of change to lower grade or reassignment involving displacement, the reduction-in-force procedures must be followed".
However,
"If the reassignment is to a position in the same competitive level, it is neither a reduction-in-force action nor an adverse action because (i) reduction-in-force regulations apply only when there is a release from a competitive level, and (ii) positions within a properly constructed competitive level are so similar in duties and responsibilities that the interchange of personnel is feasible; they are, therefore, necessarily of the same rank in the organization." FPM 351.2-6(b)(1).
Thus it is clear that plaintiff's reassignment to position number 11878 in the XM-815 unit was not a reduction-in-force which would entitle her to noncompetitive promotion because she remained in the same competitive level.[9] The grievance examiner's conclusions were, therefore, not in error as to this point.
2. Constitutional Entitlement.
Plaintiff's complaint is broader than the sort of technical consideration of the regulations discussed previously would imply. The gravamen of plaintiff's dissatisfaction with the administrative determination below is that for a significant period of time she served as the only secretary in an office with two designated job slots as such she considered herself to be the "top" secretary in that unit, and she felt she had an entitlement to continue in the "top" spot. Inasmuch as the top secretary was to be rated as a GS-7, plaintiff argues that she deserves the promotion.
The chief difficulty with plaintiff's argument is that she was never officially appointed to the GS-7 position. She was rated GS-6 when she began to work for General Baer in July, 1972. She was officially appointed to a GS-6 position in December, 1972 by an official Notice of Personnel Action. As made clear in FPM Supplement 752-1-4(a) "An official personnel action is an action which requires the issuance of a Standard Form 50 or a form used instead of SF-50." This kind of official personnel notification is a sine qua non of the type of entitlement plaintiff claims. The Court agrees with the reasoning of Peters v. U. S., 534 F.2d 232, 208 Ct.Cl. 373 (1975). In Peters an Associate General Counsel of the Federal Aviation Administration had a rating *604 of GS-16. In January, 1968, he was appointed Acting Deputy General Counsel. Even though the position he was appointed to in an "Acting" capacity was rated for a GS-17, Peters continued to be paid at the GS-16 rate. Despite the lack of any official promotion plaintiff served in this acting capacity until February, 1971. In considering his suit for back pay the court said:
"First and foremost, it is patently clear that in spite of any implication to the contrary, plaintiff was never officially appointed to the position of Deputy General Counsel. Sundry proposals may have been made to promote him, but the facts are clear no appointment was ever consummated. This court has repeatedly held that a government employee is entitled only to the rights and salary of the position to which he has been appointed." Id. at 234. Accord: Goutos v. U. S., 552 F.2d 922, 212 Ct.Cl. 95 (1976).
The grievance examiner found as a matter of fact that plaintiff's Notice of Personnel Action effective December 10, 1978 appointed her to job number 11878, GS-6. Although plaintiff argues that the notion "AMCPM-GCM" denotes assignment as secretary to General Baer which was known by all to be the GS-7 position, the Court finds that there is ample evidence in the record to support the well-documented conclusion of the grievance examiner. The appointing document plainly sets forth both the job number and grade of plaintiff's assignment. (Exhibit 3, Items 20-22).
This factual conclusion effectively disposes of plaintiff's claim that the failure to grant her the promotion she desires deprived her of a protected property right without due process of law. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), relied on by both the plaintiff and defendants, the Supreme Court had occasion to consider the relation between the Due Process Clause and intangible property. In that case the plaintiff argued that a state university's failure to renew his teaching contract without notice and an opportunity for hearing violated procedural due process. The lower courts had held in favor of Roth on this issue. In reversing those rulings the Supreme Court said:
"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.. .
"Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."
Id. at 577, 92 S.Ct. at 2709.
By this standard it is plain that the plaintiff never had a protected property interest in the GS-7 position she seeks to be judicially promoted to. The plaintiff's unilateral expectation is insufficient, in the face of the Civil Service Commission's clearly defined rules, to create a constitutional issue of an administrative problem.[10]
The Court must also consider whether the Army's decision to deny plaintiff a promotion to the GS-7 position was arbitrary and capricious. To be sure, there are some equities in plaintiff's favor. In the context of the everyday working environment of a relatively small office it is understandable that plaintiff would prefer to remain either the sole secretary, or the secretary with the highest position on the organizational chart. But in reviewing the administrative decision, the Court may not be concerned with either how it might have handled the problem formally or informally, or the plaintiff's emotions. Rather the issue is whether the agency abused the discretion entrusted to it by Congress in the discharge of its responsibilities. Reviewing the record as a whole the Court cannot find any errors of law or procedure. Indeed, the *605 administrative decision-makers seem to have threaded their way through a complicated maze of confusing and voluminous regulations with exemplary skill.
Defendants are therefore entitled to summary judgment on Counts I and II of the complaint.
II. EMPLOYMENT DISCRIMINATION COMPLAINT
Treating Count III of plaintiff's complaint liberally, it appears to raise two separate claims under Title VII that plaintiff was the victim of reverse discrimination because the assignment of Ms. Cameron to the GS-7 position was race-preferential in violation of plaintiff's rights and that the failure to promote her to the GS-7 position was impermissibly based on sex because secretaries, all of whom are women, are not given credit for on-the-job experience in the same manner as male employees. In this second prong of her complaint, plaintiff alleges that had she been given credit for the knowledge and experience she acquired while working on the XM-815 and other projects, she would have been entitled to a merit promotion to the GS-7 position she seeks. The final link in plaintiff's claim is that had she been a male the Army would have given her credit for this experience. The government has moved to dismiss this Count on the ground that plaintiff failed to file an administrative complaint in a timely fashion.
The relevant Civil Service Regulations provide that an agency of the government may not process a Title VII complaint unless
"The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing [her] to believe that [s]he had been discriminated against within 30 calendar days of the date of the matter, or if a personnel action, within 30 calendar days of its effective date." 5 CFR § 713.214(a)(1)(i).
The pertinent dates are not in dispute. Plaintiff filed her complaint with the Army's Equal Employment Opportunity Counselor on October 16, 1973. Ms. Cameron was appointed to the GS-7 position effective June 30, 1973. It would thus appear that failure by the plaintiff to file her complaint prior to July 30, 1973 bars any action in this Court.
Plaintiff argues that the matter leading her to believe that she was discriminated against was General Baer's denial of her grievance on September 26, 1973. This claim is untenable. Plaintiff is arguing, in effect, that she should be excused from pursuing her Title VII remedies while she awaits the outcome of other avenues of relief. The time limits contained in the regulation are designed to afford speedy conciliation of disputes just such as this. Nowhere in the case law, the statute or the regulation does there appear any exception for individuals who determine that they want to pursue their Title VII remedies only after other available procedures have fallen through.
Neither Congress nor the Civil Service Commission plays as fast and loose with the time restrictions of Title VII as the plaintiff would have it. An individual who believes she was discriminated against must pursue her rights promptly. This is not a case where the fact of discrimination was hidden by some actions of the defendants. Plaintiff knew Ms. Cameron was Black. Nothing in General Baer's letter of September 26th informing her of his decision added any fact which would give rise to a newly discovered claim of discrimination. The exhaustion requirement of 5 CFR § 713.241(a)(1)(i) is binding upon plaintiff as it is on other government employees. Ettinger v. Johnson, 518 F.2d 648, 652 (3rd Cir. 1975); Stockton v. Harris, 434 F.Supp. 276 (D.D.C.1977); Adams v. Bailar, 426 F.Supp. 263 (E.D.Va.1976).
Though the relevant dates are different, the same conclusion obtains with respect to plaintiff's allegations of sex discrimination. The record reflects the fact that the basis of the sex discrimination charge were some remarks made by a Mr. Trapp to numerous women secretaries at the Tank Automotive Command. (Exhibit *606 15H).[11] Plaintiff does not indicate when she first learned of these statements and thus first had cause to suspect that she was the victim of sex discrimination. Nothing in General Baer's determination of September 26, or the grievance examiner's report on which it was based, made reference to any facts remotely related to this claim. Under the previously cited cases the burden is on the plaintiff to establish that her complaint was timely filed. There are no facts in the record which rebut the inference that plaintiff knew of the facts which form the basis of her sex discrimination complaint prior to September 16, 1973.[12] Accordingly, Count III will be dismissed.
For the foregoing reasons, plaintiff's motion for summary judgment is denied, the defendants' motion for summary judgment on Counts I and II are granted and defendants' motion to dismiss Count III is likewise granted.
IT IS SO ORDERED.
NOTES
[1] The foregoing is an extremely restricted statement of the facts in this case. In view of the limited nature of this opinion, the Court deems it prudent to be as circumspect as possible. Accordingly, all the facts previously recited are accepted by counsel for both parties. The Court intimates no view on any aspect of the various motions before it other than the limited issue of its scope of review under Counts I and II of the complaint.
[2] No such dispute exists as to Count III. For the sake of convenience and ease of understanding, the merits of the parties' motions with respect to Count III are more properly considered at a subsequent hearing.
[3] While these cases all concern allegations of improper discharge, it is plain that the same standard applies where, as here, the plaintiff alleges that she was improperly denied a promotion. See e. g., McCourt v. Hampton, 514 F.2d 1365 (4th Cir. 1975).
[4] The opinion in Hill goes off as much on the general equitable power of the court as on a Bivens-type Fifth Amendment tort theory.
[5] In Cort v. Ash the Court at page 78, 95 S.Ct. 2080 listed four general areas of inquiry: (1) is the plaintiff one of the class for whose special benefit the statute was enacted; (2) is there any indication of legislative intent; (3) is it consistent with the purpose of the legislation to imply a private remedy, and (4) is the problem one traditionally left to state law. No single aspect of this formula is determinative. Courts are to engage in a balancing process with respect to each of these factors.
[6] Technically the question is whether Congress intended by enacting 28 U.S.C. § 1331(a) to create an implied direct action against federal administrative agencies and personnel for deprivations of due process. Section 1331(a) provides:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States, except that no such sum or value shall be required in any action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity."
[7] In Doe v. Hampton, supra at fn. 15, the court spoke to the distinction between the "arbitrary and capricious" standard and the "substantial evidence" test. Without repeating fully that scholarly discussion, the Court notes that the distinction may be more real in theory than in practice. In either case the Court contemplates more than a perfunctory review of the record.
[1] See Docket Entry No. 26.
[2] The parties agree that an Army commanding officer may have at his disposal the services of a Civilian Personnel Officer to help understand and interpret the Civil Service regulations. In this way the commander will not be unduly burdened with the technical aspects of the regulations, the administration of which might otherwise detract from the unit's primary mission. See CPR 200, Ch. 250, 254.2(e)(1).
[3] Whether a plaintiff challenging the validity of agency action must show both actual improper exercise of responsibility and prejudice is not here in issue and the Court intimates no view on the question.
[4] CPR stands for Civilian Personnel Regulation.
[5] General Baer was within the Army Material Command. Mr. Blakeslee worked for the Tank Automotive Command. The contract is found at Exhibit 13, Subexhibit 4.
[6] The issue, thus framed, is identical to the questions which plaintiff raises concerning the validity of the grievance examiner's substantive determination about her entitlement to the GS-7 promotion. Rather than repeat the substance of the Court's consideration of that aspect of this litigation at this point, the Court incorporates by reference its findings on these issues at Part I, B, infra pp. 601-603. While this approach does require a certain amount of cross-referencing, the Court felt it desirable to consider the plaintiff's procedural claims first because, if they were found to be meritorious, remand to the agency for further proceedings might be appropriate and the substantive issues would not be reached.
[7] Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) relied on by plaintiff is inapposite.
[8] "A promotion may be made on a non-competitive basis in any of the following situations: . . . placement actions required in connection with Reduction-in-Force, i. e., reorganizations, reductions in spaces or funds, or transfer of functions." The Regulation was promulgated by the U.S. Army Tank Automotive Command.
[9] This same provision of the Federal Personnel Manual applies with equal force to plaintiff's claim that she suffered a reduction in rank without any adverse hearing opportunity. See also FPM Supplement 752-1-4(b) which indicates that adverse action proceedings are only necessary when the reassignment is to a position with a lower competitive level. The Court finds that FPM Supplement 752-1-4(b) takes precedence over 752-1-4(a) on which plaintiff relies. There the Commission indicates that though rank means something more than mere numerical GS grade, a reduction in rank cannot be determined without reference to "an employee's relative standing in the agency's organizational structure, as determined by his official position assignment." (Emphasis supplied). The official position assignment is one determined by SF-50 form. Thus, when subsection (a) is read in the light of subsection (b), it is clear that a reduction in rank could possibly occur as between two GS-6 secretaries, but not in an office where one secretary was rated GS-6 and another had a higher rating.
[10] The Court finds, as well, no "understanding" which supports plaintiff's claim of estoppel.
[11] Mr. Trapp was listed as a witness by plaintiff on her formal employment grievance in May, 1973. (Exhibit 13, subexhibit 1).
[12] Mrs. Herbin, a fellow employee listed as a witness on behalf of plaintiff from the very beginning of her formal grievance procedures, testified in her affidavit (Docket Entry No. 22) that in March, 1973 Mr. Trapp made statements about the Army's rationale for job reductions which were sex based. The inference is that plaintiff knew of these grounds for complaint well before September, 1973. See also Exhibit 13, inclosure 2, and subexhibit 3, paragraph 6, for indications that plaintiff had grounds to file an EEO complaint in June, 1973.
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FILED
NOT FOR PUBLICATION DEC 19 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50149
Plaintiff-Appellee, D.C. No. 3:14-cr-03553-LAB
v.
MEMORANDUM*
YADIRA ELIZABETH RUIZ-
BURANDT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Yadira Elizabeth Ruiz-Burandt appeals from the district court’s judgment
and challenges the 75-month sentence imposed following her guilty plea
conviction for importation of cocaine and methamphetamine, in violation of 21
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291. We vacate
and remand for resentencing.
Ruiz-Burandt argues that the district court erred in denying a minor role
reduction to her base offense level under U.S.S.G. § 3B1.2(b). After Ruiz-Burandt
was sentenced, the United States Sentencing Commission issued Amendment 794
(“the Amendment”), which amended the commentary to the minor role Guideline.
The Amendment is retroactive to cases pending on direct appeal. See United States
v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). The Amendment added a
non-exhaustive list of factors that a court “should consider” in determining whether
to apply a minor role reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C) (2015).
Because we cannot determine from the record whether the district court considered
all of the now-relevant factors, we vacate Ruiz-Burandt’s sentence and remand for
resentencing. See Quintero-Leyva, 823 F.3d at 523-24.
VACATED and REMANDED for resentencing.
2 15-50149
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685 N.E.2d 1018 (1997)
292 Ill. App.3d 350
226 Ill.Dec. 563
Connie BILLERBECK, Plaintiff-Appellee,
v.
CATERPILLAR TRACTOR COMPANY, a Corporation, Defendant-Appellant.
No. 4-96-0505.
Appellate Court of Illinois, Fourth District.
Argued October 30, 1996.
Decided October 8, 1997.
*1019 Karen L. Kendall (argued), Robert V. Dewey, Brad A. Elward, Craig S. Young, Heyl, Royster, Voelker & Allen, Peoria, for Caterpillar Tractor Co.
James R. Ensign (argued), Ostling, Ensign & Barry, Bloomington, for Connie Billerbeck.
Justice KNECHT delivered the opinion of the court:
On December 4, 1989, in the circuit court of Livingston County, plaintiff Connie Billerbeck filed suit against defendant Caterpillar Tractor Company for injuries she allegedly sustained on December 4, 1987. Approximately four years later, on November 16, 1993, the trial court granted plaintiff's motion for voluntary dismissal. Plaintiff refiled her complaint on October 24, 1994. On November 16, 1995, summons was issued. Summons was served on defendant two weeks later, 13 months and 6 days after plaintiff refiled her complaint.
Defendant filed a motion to dismiss, arguing plaintiff had not acted with reasonable diligence in effecting service upon defendant as required by Supreme Court Rule 103(b) (134 Ill.2d R. 103(b)). Attached to defendant's motion was an affidavit showing the date of service and a letter dated November 7, 1995, informing plaintiff's counsel that defendant would not accept service of process on its counsel. Plaintiff did not file a response to this motion. The trial court, on May 3, 1996, denied defendant's motion, but certified the following question for interlocutory review pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308):
"Whether a [13]-month and [6]-day lapse between filing of the lawsuit and effecting service of process on defendant constitutes a lack of due diligence pursuant to Supreme Court Rule 103 where the complaint filed was a refiling following a voluntary dismissal, the statute of limitations had run prior to the filing of the complaint, defendant had made it known in writing it would not voluntarily accept service, defendant was a corporation in the same location throughout the pendency of the action, and no efforts to effect service during the [13]-month [6]-day time period were attempted by plaintiff."
(We note the trial court incorrectly included in its certified question "defendant had made it known in writing it would not voluntarily accept service." The letter submitted by defendant clearly informed plaintiff's counsel that defendant would not accept service *1020 through its counsel, but plaintiff would have to serve defendant directly.) On July 9, 1996, this court granted leave to appeal.
Rule 103(b) requires a plaintiff to act with reasonable diligence in effecting service of process on a defendant. If the plaintiff fails to act with reasonable diligence after the statute of limitations expires, the cause of action shall be dismissed with prejudice. The plaintiff has the burden of proving reasonable diligence, and the defendant is not required to prove prejudice by the delay. Segal v. Sacco, 136 Ill.2d 282, 286, 144 Ill. Dec. 360, 361, 555 N.E.2d 719, 720 (1990); Mayoral v. Williams, 219 Ill.App.3d 365, 370, 162 Ill.Dec. 382, 385, 579 N.E.2d 1196, 1199 (1991).
In O'Connell v. St. Francis Hospital, 112 Ill.2d 273, 282, 97 Ill.Dec. 449, 453, 492 N.E.2d 1322, 1326 (1986), the Supreme Court of Illinois emphasized the purpose and importance of Rule 103(b):
"Nothing is more critical to the judicial function than the administration of justice without delay. [Citations.] Central to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it. [Citations.] Rule 103(b) was adopted by this court to effectuate its historical and constitutional mandate to render justice fairly and promptly.
Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit. In addition, service with due diligence, by promptly placing defendant on notice of a pending action, shortens the time needed to investigate, prepare and litigate the issues raised, thereby allowing the court to proceed expeditiously to a just resolution of the matter before it."
In Segal, the court noted Rule 103(b) is necessary to prevent circumvention of the statute of limitations. Segal, 136 Ill.2d at 286, 144 Ill.Dec. at 361, 555 N.E.2d at 720. The rules of our supreme court are not aspirational. "They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bright v. Dicke, 166 Ill.2d 204, 210, 209 Ill.Dec. 735, 737-38, 652 N.E.2d 275, 277-78 (1995).
When making a Rule 103(b) determination, a trial court may consider the following factors: (1) amount of time in obtaining service; (2) plaintiff's activities; (3) plaintiff's knowledge of defendant's whereabouts; (4) ease in ascertaining defendant's location; (5) defendant's actual knowledge of the pendency of the suit resulting from ineffective service; (6) special circumstances affecting plaintiff's efforts; and (7) actual service effected on defendant. These factors, which are not exhaustive, must be viewed in light of the rule's purpose. Segal, 136 Ill.2d at 287, 144 Ill.Dec. at 361-62, 555 N.E.2d at 720-21. This court, in Mayoral, also considered whether the defendant was prejudiced by the delay. Mayoral, 219 Ill.App.3d at 369-70, 162 Ill.Dec. at 385, 579 N.E.2d at 1199.
Defendant contends an application of the analysis in Segal demonstrates the plaintiff did not act with reasonable diligence. Defendant also maintains public policy favors a finding of a lack of reasonable diligence. Plaintiff, on the other hand, argues application of the factors in Segal is discretionary.
In Segal, the court used permissive language prior to listing the factors: "a court may consider." Segal, 136 Ill.2d at 287, 144 Ill.Dec. at 361, 555 N.E.2d at 720. These factors, however, are consistently used by reviewing courts. See, e.g., Womick v. Jackson County Nursing Home, 137 Ill.2d 371, 377, 148 Ill.Dec. 719, 721, 561 N.E.2d 25, 27 (1990); Mayoral, 219 Ill.App.3d at 369-70, 162 Ill.Dec. at 385, 579 N.E.2d at 1199; Sinn v. Elmhurst Medical Building, Ltd., 243 Ill. App.3d 787, 790, 184 Ill.Dec. 56, 59, 612 N.E.2d 932, 935 (1993); Tischer v. Jordan, 269 Ill.App.3d 301, 307, 206 Ill.Dec. 739, 743, 645 N.E.2d 991, 995 (1995). In addition, the Womick court, one year after the Segal decision, used less permissive language: "they are but two factors to be considered by the court in making that determination." (Emphasis added.) Womick, 137 Ill.2d at 377, 148 Ill.Dec. at 721, 561 N.E.2d at 27; see also Mayoral, 219 Ill.App.3d at 369-70, 162 Ill. Dec. at 385, 579 N.E.2d at 1199.
We need not decide whether consideration of the Segal factors is permissive or mandatory, *1021 because the question certified to this court indicates the trial court considered the above factors and asked this court to do the same. The trial court gave the length of time, noted plaintiff's activity (or inactivity) and knowledge of defendant's location, mentioned the letter indicating defendant's actual knowledge, and noted defendant was served.
An application of these facts to factors set forth in Segal indicates plaintiff did not act with reasonable diligence. Plaintiff provided no explanation of her efforts in effecting service upon defendant, either through affidavits, other evidence, or argument. There is nothing in the record or briefs showing any special circumstances prohibiting service upon defendant. Plaintiff had knowledge of defendant's whereabouts because she worked for a food service company operating in one of defendant's plants. There is no evidence defendant changed locations and defendant maintains its location had not changed during the litigation.
Moreover, the time between filing and service was 13 months and 6 days. Plaintiff provided no case law indicating this length of time is reasonable. On the other hand, defendant cites several cases where plaintiffs were found to have acted without reasonable diligence with delays of eight to nine months. Womick, 137 Ill.2d at 377, 148 Ill.Dec. at 721, 561 N.E.2d at 27 (nine months); Penrod v. Sears, Roebuck & Co., 150 Ill.App.3d 125, 129, 103 Ill.Dec. 346, 348, 501 N.E.2d 367, 369 (1986) (eight months); Sinn, 243 Ill. App.3d at 789, 184 Ill.Dec. at 59, 612 N.E.2d at 935 (eight months).
Defendant, however, received service of process and had actual knowledge of the cause of action since two weeks after the complaint was refiled. Because defendant had a fair opportunity to investigate, defendant was arguably not prejudiced by the delay.
According to Womick, the presence of actual knowledge and the absence of prejudice do not require this court to find reasonable diligence. In Womick, though the plaintiff knew the defendant's locale, the plaintiff made no attempt to place summons for approximately nine months after filing the complaint. The court concluded "notice is not sufficient to preclude dismissal in light of [plaintiff's] obvious lack of diligence." Womick, 137 Ill.2d at 381, 148 Ill.Dec. at 723, 561 N.E.2d at 29. As in Womick, actual notice and the absence of prejudice do not outweigh the other factors. Plaintiff has shown neither an attempt to serve defendant, special circumstances to justify the delay, nor difficulty in locating defendant. In this case, the delay was four months longer than the delay in Womick. See Womick, 137 Ill.2d at 380, 148 Ill.Dec. at 723, 561 N.E.2d at 29. Plaintiff's lack of diligence is equally as obvious, if not more so.
Plaintiff argues, however, a dismissal with prejudice under Rule 103(b) is a harsh penalty, justified only when the delay denies defendants fair opportunity to investigate the facts and circumstances of the charges. See Segal, 136 Ill.2d at 288, 144 Ill.Dec. at 362, 555 N.E.2d at 721. Plaintiff further contends Illinois favors determinations based upon parties' substantive rights. See McCormack v. Leons, 261 Ill.App.3d 293, 295, 199 Ill.Dec. 401, 402, 634 N.E.2d 1, 2 (1994), citing 735 ILCS 5/1-106 (West 1992).
Defendant argues public policy supports a determination plaintiff acted without reasonable diligence. Defendant states the purpose of Rule 103(b) is to protect defendants from unnecessary delay in the service of process and to prevent circumvention of the statute of limitations. See Hanna v. Kelly, 91 Ill. App.3d 896, 900, 47 Ill.Dec. 146, 150, 414 N.E.2d 1262, 1266 (1980). Defendant also cites Schusterman v. Northwestern Medical Facility Foundation, 195 Ill.App.3d 632, 639, 142 Ill.Dec. 437, 441, 552 N.E.2d 1178, 1182 (1990), and contends a party has a duty that is nondelegable to bring suit to a timely conclusion. Defendant argues if this court were to decide plaintiff acted with reasonable diligence, it would render Rule 103(b) meaningless.
The "harsh penalty" language cited by plaintiff originated from a case with a 20- to 21-week delay between filing and the service of process. See Segal, 136 Ill.2d at 284-85, 288, 144 Ill.Dec. at 360-62, 555 N.E.2d at 719-21. The Segal court observed a Rule 103(b) dismissal with prejudice would not be *1022 an abuse of discretion if the delay was equal to or shorter than the 20- and 21-week delay if defendants were denied fair opportunity to investigate facts and circumstances that are the grounds for the suit while the information is available. Segal, 136 Ill.2d at 289, 144 Ill.Dec. at 362, 555 N.E.2d at 721. The Segal court, however, left open the possibility for dismissals with prejudice for cases with longer delays that do not deny defendants fair opportunity to investigate. The Womick court, in consideration of a case with a greater delay, did not even consider whether the defendant was denied a fair opportunity to investigate. Womick, 137 Ill.2d at 377, 148 Ill.Dec. at 721, 561 N.E.2d at 27.
Like the factors in Segal, public policy weighs toward a dismissal with prejudice. Rule 103(b) was adopted to protect against unreasonable delay in the service of process and to prevent plaintiffs' circumventing the statute of limitations. Segal, 136 Ill.2d at 286, 144 Ill.Dec. at 361, 555 N.E.2d at 720. Plaintiff filed suit on the last day permitted by the statute of limitations. She voluntarily dismissed her suit without prejudice nearly four years later. Plaintiff refiled her suit within the one-year allowance, but did not effect service of process until 13 months 6 days later. Plaintiff has circumvented the statute of limitations by over six years. Even if this court focuses only on the one-year window given to plaintiffs who voluntarily withdraw their cases without prejudice, plaintiff circumvented that limitation by over a year. The purpose of Rule 103(b) is not served by such lack of diligence, and if we were to find this delay satisfies Rule 103(b), we would render the rule meaningless. We thus answer the trial court's question, with the necessary modification, in the affirmative.
We turn now to consider whether this court's review is limited solely to the determination of how the trial court's question should be decided. In Schoonover v. American Family Insurance Co., 214 Ill.App.3d 33, 40-41, 157 Ill.Dec. 794, 798, 572 N.E.2d 1258, 1262 (1991), we held we were not limited to reviewing questions presented under Rule 308, but instead we may also consider the appropriateness of the order giving rise to the appeal. Following the supreme court's decision in Faier v. Ambrose & Cushing, P.C., 154, Ill.2d 384, 182 Ill.Dec. 12, 609 N.E.2d 315 (1993), however, we abandoned our holding in Schoonover. Kerker v. Elbert, 261 Ill.App.3d 924, 925, 199 Ill.Dec. 643, 644, 634 N.E.2d 482, 483 (1994).
In Faier, the court found the appellate court incorrectly denied leave to appeal under Rule 308. After hearing the appeal, the court ruled by answering the question presented and remanding the case to the trial court. There was no determination on whether the appellate court may go beyond the question presented in appeals pursuant to Rule 308. Faier, 154 Ill.2d at 386-87, 182 Ill.Dec. at 13, 609 N.E.2d at 316. Justice Harrison dissented from the opinion and maintained the proper procedure for the court was to rule on the propriety of the order from which the appeal was taken. Faier, 154 Ill.2d at 387-90, 182 Ill.Dec. at 13-15, 609 N.E.2d at 316-18 (Harrison, J., dissenting); see also Kerker, 261 Ill.App.3d at 925, 199 Ill.Dec. at 644, 634 N.E.2d at 483. Upon interpreting Faier, we concluded the decision overruled our holding in Schoonover. Hardimon v. Carle Clinic Ass'n, 272 Ill. App.3d 117, 124, 208 Ill.Dec. 824, 828, 650 N.E.2d 281, 285 (1995); Danner v. Norfolk & Western Ry. Co., 271 Ill.App.3d 598, 601, 207 Ill.Dec. 903, 905, 648 N.E.2d 603, 605 (1995). Kerker, 261 Ill.App.3d at 925, 199 Ill.Dec. at 644, 634 N.E.2d at 483.
Subsequent supreme court decisions, however, have prompted us to rethink our abandonment of Schoonover. See Bright, 166 Ill.2d at 208, 209 Ill.Dec. at 737, 652 N.E.2d at 277; Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 193-94, 209 Ill.Dec. 727, 730, 652 N.E.2d 267, 270 (1995); Schrock v. Shoemaker, 159 Ill.2d 533, 537, 203 Ill.Dec. 787, 789, 640 N.E.2d 937, 939 (1994). In these cases, our supreme court went beyond the specific questions pursuant to Rule 308 to evaluate the appropriateness of the order that gave rise to the appeal. Bright, 166 Ill.2d at 208, 209 Ill.Dec. at 737, 652 N.E.2d at 277; Boyd, 166 Ill.2d at 193-94, 209 Ill.Dec. at 730, 652 N.E.2d at 270; Schrock, 159 Ill.2d at 537, 203 Ill.Dec. at 789, 640 N.E.2d at 939. In Schrock and Boyd, the court cited Supreme Court Rule 366(a)(5) (155 Ill.2d R. 366(a)(5)) *1023 as providing authority to go beyond the question presented. Boyd, 166 Ill.2d at 193, 209 Ill.Dec. at 730, 652 N.E.2d at 270; Schrock, 159 Ill.2d at 537, 203 Ill.Dec. at 789, 640 N.E.2d at 939. Rule 366(a)(5) provides the following:
"In all appeals the reviewing court may, in its discretion * * *
(5) enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief * * * that the case may require." (Emphasis added.) 155 Ill.2d R. 366(a)(5).
Our reading of Rule 366(a)(5) indicates the rule is not limited to our supreme court, but applies to this court, as well as to all appeals. We thus return to our holding in Schoonover.
In this case, given the interests of judicial economy, we are obligated to go beyond the question presented to consider the appropriateness of the order giving rise to the appeal. See Bright, 166 Ill.2d at 208, 209 Ill.Dec. at 737, 652 N.E.2d at 277. Because trial courts have broad discretion to dismiss a lawsuit with prejudice under Rule 103(b), we thus consider whether the trial court's denial of defendant's motion was an abuse of discretion. See Segal, 136 Ill.2d at 286, 144 Ill.Dec. at 361, 555 N.E.2d at 720; Sinn, 243 Ill. App.3d at 789, 184 Ill.Dec. at 59, 612 N.E.2d at 935.
Plaintiff argues the trial court's decision is discretionary and points to other Rule 103(b) cases where the reviewing court did not disturb the trial court's decision granting a Rule 103(b) dismissal. See, e.g., Womick, 137 Ill.2d at 381, 148 Ill.Dec. at 723, 561 N.E.2d at 29 (reversing the appellate court's reversal of trial court's dismissal); Mayoral, 219 Ill. App.3d at 371, 162 Ill.Dec. at 386, 579 N.E.2d at 1200; Penrod, 150 Ill.App.3d at 129, 103 Ill.Dec. at 348, 501 N.E.2d at 369; Easa v. Group III Promotions, Inc., 182 Ill.App.3d 297, 130 Ill.Dec. 734, 537 N.E.2d 1063 (1989). Plaintiff cites In re Marriage of Aud, 142 Ill. App.3d 320, 326, 96 Ill.Dec. 615, 619, 491 N.E.2d 894, 898 (1986), and argues an abuse of discretion exists when a court, in consideration of all circumstances, exceeds the limits of reason and ignores legal principles so that substantial prejudice results.
This court in Mayoral stated "diligence must be established factually, by affidavits in conformance with the rules of evidence." Mayoral, 219 Ill.App.3d at 370, 162 Ill.Dec. at 385, 579 N.E.2d at 1199. Although there is no transcript from the hearing on the motion, it is evident from the language of the trial court's question that plaintiff presented no affidavits or evidence, other than what is in the record, to provide any justification for the delay. Plaintiff apparently stood only on her arguments and the facts defendant presented.
The trial court's misinterpretation of the contents of defendant's letter may have contributed to its ruling. If defendant stated it would not voluntarily accept service, part of the delay may have been attributed to defendant's own actions, causing the factors in Segal to lean more in plaintiff's favor. There is, however, no evidence on the record defendant made such a statement. There is also no evidence in the record plaintiff acted with diligence. The delay resulted merely from plaintiff's inaction. Given our answer to the trial court's question and the failure of plaintiff to produce any evidence establishing diligence, we find the trial court abused its discretion in denying defendant's motion.
Remanded with directions to dismiss with prejudice.
STEIGMANN, P.J., and GARMAN, J., concur.
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32 Cal.App.3d 592 (1973)
108 Cal. Rptr. 219
W.H. SACKETT, Plaintiff and Appellant,
v.
JACK D. WYATT et al., Defendants and Respondents.
Docket No. 12338.
Court of Appeals of California, Fourth District, Division Two.
May 23, 1973.
*594 COUNSEL
R.R. Campagna for Plaintiff and Appellant.
Richman & Garrett and Lionel Richman for Defendants and Respondents.
OPINION
TAMURA, J.
Plaintiff appeals from a judgment of dismissal following an order sustaining a demurrer to his first amended complaint without leave to amend. Review of the court's ruling requires an analysis not only of the first amended complaint, but of the original as well. We, therefore, briefly summarize both pleadings.
*595 The original complaint named as defendants Jack D. Wyatt, General Truck Drivers Union Local 467 and Joint Western Area Committee (Joint Committee). Plaintiff alleged two causes of action. In the first, he alleged he was engaged in business as a radial highway common carrier solely in intrastate commerce in California with his principal place of business in Riverside County; that Local 467 was a duly authorized and accredited labor union representing employees and union members in the trucking industry in Riverside County; that Wyatt and certain Doe defendants were members of the executive board of the local and officers and agents thereof; that the Joint Committee is a body comprised of labor and management representatives to hear and decide grievances; that under the terms of a collective bargaining agreement between plaintiff and Local 467 which was in force and effect, the parties agreed to submit all disputes arising thereunder to arbitration; that the Joint Committee rendered a decision against plaintiff with respect to certain union grievances and a dispute has arisen concerning the interpretation of that decision; that the Joint Committee decision was "incomplete, indefinite and incapable of compliance without further elaboration"; that plaintiff requested further clarification to no avail; and that the union has threatened "strike sanctions" unless plaintiff complies with the Joint Committee decision as interpreted by the union.
In the second cause of action, plaintiff alleged that Wyatt orally agreed with plaintiff that the grievances filed by the union would be withdrawn provided plaintiff agreed to withdraw pending disciplinary charges against certain of his employees who were union members; that plaintiff withdrew his charges but, contrary to the oral agreement, Wyatt "and other defendants" prosecuted the union grievances before the Joint Committee; that plaintiff relied upon the agreement and was therefore unprepared for the Joint Committee hearings and thereby suffered an adverse decision; that Wyatt "performed said acts, conduct or omissions with no valid or legitimate labor-management purpose in mind but solely to vex, harass and annoy plaintiff."
Plaintiff prayed for an injunction restraining defendants from striking or picketing, for an order compelling arbitration of the dispute over the interpretation of the Joint Committee decision, for an order staying enforcement of that decision, and for damages.
A year and three days after the filing of the original complaint but before any responsive pleadings were filed, plaintiff filed a first amended complaint for damages naming only Wyatt (and Does) as defendants. The amended complaint also alleged two causes of action:
*596 The first, after repeating the allegations concerning the nature of plaintiff's business, the position of Wyatt with Local 467, and the execution of a collective bargaining agreement, alleges that plaintiff brought disciplinary charges against certain employees pursuant to the collective bargaining agreement; that the union through Wyatt filed employee grievances against plaintiff; that Wyatt orally agreed with plaintiff that if plaintiff would withdraw his charges against his employees Wyatt would dismiss the union grievances; that plaintiff performed but Wyatt failed to withdraw the union grievances and instead prosecuted them before the Joint Committee; that as a result of Wyatt's breach, plaintiff was damaged to the extent of the Joint Committee's award against plaintiff in the sum of $1,850.
As a second cause of action plaintiff alleged that at the time the oral agreement was entered into, Wyatt never intended to withdraw the union grievances and that his promise to do so was "false and fraudulent"; that Wyatt acted "with no valid or legitimate labor-management purpose in mind but solely to vex, harass and annoy plaintiff." The prayer was for general and special damages according to proof together with exemplary damages.
Defendant Wyatt demurred to the first amended complaint and each cause of action therein for failure to state a cause of action and on the further ground that the action was barred by Code of Civil Procedure section 340, subdivision 4, in that it was not "commenced within one (1) year." In support of the demurrer defendant requested the court to take judicial notice of a decision of the National Labor Relations Board certifying Local 467 as the bargaining representative for plaintiff's employees. The court sustained the demurrer as to both causes of action without leave to amend.[1]
I
(1a) As to the first cause of action on the amended complaint, plaintiff contends the court erred in basing its ruling on the theory that an agent could not be held liable for damages for breach of contract when acting for a disclosed principal. It is urged the amended complaint merely alleged Wyatt's affiliation with the union but did not allege he was acting within the course and scope of his agency. Plaintiff's contention is without merit.
*597 (2) In ruling upon the demurrer the trial court was not confined to the allegations of the first amended complaint; it was entitled to consider the verified allegations of the earlier complaint. (Lesperance v. North American Aviation, Inc., 217 Cal. App.2d 336, 340-341, fn. 1 [31 Cal. Rptr. 873]; Hinman v. Wagnon, 172 Cal. App.2d 24, 28 [341 P.2d 749].) Allegations of fact made under oath may not ordinarily be dropped without adequate explanation merely for the purpose of avoiding their harmful effect in a subsequent pleading. (Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713, 716 [128 P.2d 522, 141 A.L.R. 1358]; Callahan v. City and County of San Francisco, 249 Cal. App.2d 696, 699 [57 Cal. Rptr. 639]; Chadbourne, Grossman, Van Alstyne, Cal. Practice, § 1167, pp. 393-394.)
(1b) The gravamen of the first cause of action of the amended complaint is a claim for damages for breach of an oral agreement between plaintiff and Wyatt wherein the latter allegedly promised to withdraw union grievances in consideration of plaintiff's promise to withdraw disciplinary charges against certain of his employees. The original complaint contains factual allegations showing that Wyatt was an officer and agent of Local 467; that the parties had entered into a collective bargaining agreement regulating the terms and conditions of employment and specifying the union and its officers and agents as the negotiating representatives of member employees; and that contrary to the alleged oral agreement, Wyatt and the union prosecuted the employees' grievances to a favorable Joint Committee decision. In the amended complaint plaintiff attempts to state a cause of action against Wyatt individually without any reference to the union's participation in negotiating the alleged oral agreement or the prosecution of the employees' grievances before the Joint Committee in violation of the agreement. However, the allegations of the original complaint clearly reveal that Wyatt was acting as a union representative in agreeing to withdraw union grievances and in subsequently prosecuting them before the Joint Committee. Those factual allegations may not be avoided by omitting them in the amended complaint without explanation. Indeed, in his opening brief appellant concedes that Wyatt was "ostensibly acting in his official capacity" in entering into the oral agreement.
In the foregoing circumstances, the demurrer to the first cause of action was properly sustained on the basis of applicable state law. Under California law it is settled that a personal judgment for damages for breach of contract may not be obtained against a known agent of a disclosed principal. (Automatic Poultry Feeder Co. v. Wedel, 213 Cal. App.2d 509, 518 [28 Cal. Rptr. 795]; Hayman v. Shoemake, 203 Cal. App.2d 140, 159 [21 Cal. Rptr. 519]; Oppenheimer v. General Cable Corp., 143 Cal. App.2d *598 293, 297 [300 P.2d 151]; see Carranza v. Noroian, 240 Cal. App.2d 481, 483 [49 Cal. Rptr. 629].)
(3) (See fn. 2.) Moreover, though not specified by the trial judge as a ground for its order sustaining the demurrer, a personal judgment against defendant for damages for breach of contract is precluded by section 301 of the Labor Management Relations Act (L.M.R.A.). (29 U.S.C.A. § 185.)[2] Subdivision (a) provides that suits for "violation of contracts" between an employer and a labor organization representing employees in an industry affecting commerce as defined in the act may be brought in any federal district court having jurisdiction of the parties.[3] Subdivision (b) provides: "Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents.[4] Any such labor organization may sue or be sued *599 as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." The United States Supreme Court has viewed section 301 as an expression of congressional policy "that only the union was to be made to respond for union wrongs, and that ... union members were not to be subject to levy." (Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247-248 [8 L.Ed.2d 462, 470, 82 S.Ct. 1318].)
In Atkinson v. Sinclair Refining Co., supra, union employees allegedly participated in a work stoppage in violation of a no strike provision of a collective bargaining agreement. The employer brought suit in federal district court for damages in a multiple count complaint against both the union (count I) and several individual employees who were alleged to have acted as officers and agents of the union (count II). The district court held that the complaint stated a valid cause of action against the union under section 301 but ordered dismissal of the cause of action against the individual union officers and agents. The Court of Appeals reversed the order dismissing count II.
In affirming the district court's disposition, the Supreme Court held that in view of the allegation that the individual defendants acted "as officers, committeemen and agents" of the union in inducing a breach of the collective bargaining contract, count II alleging a violation of the no strike clause by the individual defendants "necessarily" charged a violation of the no strike clause by the union itself. Since proof of the allegations of count II would inevitably prove a violation of the no strike clause by the union, count II (like count I) was held to be a suit based on the union's breach of the collective bargaining contract and therefore within the purview of section 301. The court stated: "When a union breach of contract *600 is alleged, that the plaintiff seeks to hold the agents liable instead of the principal does not bring the action outside the scope of § 301." (Atkinson v. Sinclair Refining Co., supra, 370 U.S. 238, 247, fn. omitted [8 L.Ed.2d 462, 469].)
(4) The principles enunciated in Atkinson govern the case at bench. Plaintiff's original complaint alleged facts showing that defendant Wyatt was acting as a union representative in entering into and then allegedly breaching the oral agreement. Plaintiff's cause of action against Wyatt individually for breach of contract necessarily charged union violation of the contract. That being the case, by virtue of section 301 Wyatt may not be held personally liable for breach of the alleged agreement.
Our conclusion is not altered by the fact that the contract allegedly breached in the present case was a grievance settlement agreement rather than a collective bargaining agreement as in Atkinson. The word "contracts" as used in section 301 was intended to encompass more than collective bargaining agreements. Section 301 has been held to apply to a suit arising out of a violation of a strike settlement agreement between an employer and a union not entitled to recognition as exclusive bargaining agent of the employees (Retail Clerks v. Lion Dry Goods, 369 U.S. 17, 25-27 [7 L.Ed.2d 503, 508-509, 82 S.Ct. 541]), a suit by an employee to vindicate his individual rights arising from a collective bargaining contract (Smith v. Evening News Assn., 371 U.S. 195, 199-201 [9 L.Ed.2d 246, 250-252, 83 S.Ct. 267, 269-271]), and a suit by a union to enforce a grievance settlement agreement involving a single employee (Amalgamated Meat Cutters, etc., Local 195 v. M. Feder & Co. (E.D.Pa.) 234 F. Supp. 564). In Amalgamated Meat Cutters, supra, the union instituted grievance proceedings under the collective bargaining agreement based upon the discharge of one employee. Prior to the commencement of the arbitration hearing, the parties agreed to settle the grievance; the employer agreeing to pay the employee a certain sum and the employee agreeing to resign. The employer allegedly reneged and the union sued to enforce the settlement agreement. The court rejected the contention that the action was not within the ambit of section 301, subdivision (a), because it was "uniquely personal" to the employee and only incidentally related to the collective bargaining agreement. It held that the case fell within the express language of section 301, subdivision (a), in that the settlement by the union and the employer "was a contract between them and in entering into it the union acted as the collective bargaining agent of the employees." (234 F. Supp. at p. 567.) Moreover, the court pointed out that settlement by methods agreed upon by the parties of grievances arising under collective bargaining agreements underlies the policy of the L.M.R.A.
*601 We conclude the cause of action for breach of the alleged settlement agreement in the present case came within the purview of section 301.
II
(5) The second cause of action of the amended complaint attempts to allege a cause of action for damages for fraud. It alleges that Wyatt's promise to drop the union grievance if plaintiff would drop his disciplinary charges was made with no intention to perform and was false and fraudulent. As a result of the false promise, the complaint continues, plaintiff "changed his position as alleged" to his damage.
Accepting the truth of the allegations of the amended complaint, as we must on a demurrer, plaintiff did allege certain of the basic elements constituting actionable fraud under California law. "A false promise is actionable on the theory that a promise implies intention to perform, that intention to perform or not to perform is a state of mind, and that misrepresentation of such a state of mind is a misrepresentation of fact. The allegation of a promise (which implies a representation of intention to perform) is the equivalent of the ordinary allegation of a representation of fact." (Original italics.) (3 Witkin, Cal. Procedure (2d ed. 1971) § 581, p. 2219, and cases there cited.) Defendant urges, however, that by virtue of section 301 of the L.M.R.A. and the principles announced in Atkinson v. Sinclair Refining Co., supra, 370 U.S. 238, a union agent cannot be held liable under the state tort law for the alleged false promise made in connection with the grievance settlement agreement.[5]
While we do not find any case dealing precisely with the point raised, we have concluded that the proper disposition of plaintiff's second cause of action is, like the claim for breach of contract, controlled by section 301 of the L.M.R.A. and the principles enunciated in Atkinson v. Sinclair Refining Co., supra, 370 U.S. 238.
In Atkinson, the court traced the enactment of section 301, subdivision (b), exempting union agents and members from personal liability for judgments against the union to a deeply felt congressional reaction to the *602 Danbury-Hatters case (Loewe v. Lawlor, 208 U.S. 274 [52 L.Ed. 488, 28 S.Ct. 301]; Lawlor v. Loewe, 235 U.S. 522 [59 L.Ed. 341, 35 S.Ct. 170]) and its aftermath (Loewe v. Savings Bank of Danbury, 236 F. 444). There, the employer brought an antitrust treble damage action against union members, including officers and agents, to recover losses suffered in a nationwide, union-directed boycott of his hats. No judgment was sought or entered against the union, but instead a sizeable money judgment was recovered against the individual defendants for participating in the boycott. As a result of the judgment, numerous union members suffered great financial hardship including loss of their homes.
Viewed in the context of the Danbury-Hatters case, the court in Atkinson held that section 301, subdivision (b), should not be read narrowly but should be given a construction consonant with the evident congressional policy that the union as an entity should be the sole source of recovery of an injury inflicted by it. That policy, declared the court, "cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, or both, in a separate count or in a separate action for damages for violation of a collective bargaining contract for which damages the union itself is liable." (370 U.S. at p. 249 [8 L.Ed.2d at p. 470], italics supplied.)
Plaintiff's cause of action for fraud against Wyatt is foreclosed by the principles declared by Atkinson. Defendant's allegedly fraudulent representation made while acting as a union agent was integrally related to the grievance proceedings authorized by the collective bargaining agreement between plaintiff and Local 467. Indeed, defendant's alleged false promise was a part of the grievance settlement agreement. If in these circumstances we were to hold that defendant could be held personally liable for his representations, we would be giving section 301, subdivision (b), the kind of "niggardly" reading decried in Atkinson. Unlike conduct marked by violence where states have been permitted to award damages under traditional tort law because the states' interest in the maintenance of domestic peace is not overridden by congressional policy (see San Diego Unions v. Garmon, 359 U.S. 236 [3 L.Ed.2d 775, 79 S.Ct. 773]; United Workers v. Laburnum Corp., 347 U.S. 656 [98 L.Ed. 1025, 74 S.Ct. 833]; 48 Boston Univ.L.Rev. 83), the tort alleged here is of a nonviolent character and, in the words of Garmon, of more than a "peripheral concern" to the proper administration of the L.M.R.A.[6] It involves conduct that is *603 part and parcel of negotiations for amicable settlement of grievances involving the rights of individual employees a major "focus" of collective bargaining agreements. (Smith v. Evening News Assn., supra, 371 U.S. 195, 200 [9 L.Ed.2d 246, 251].) To permit plaintiff to maintain his second cause of action would simply foster evasion of section 301, subdivision (b). The congressional policy that unions should be the sole source of recovery for violations of their contracts could be avoided by simply couching allegations of wrongdoing in terms of fraud rather than breach. To exclude plaintiff's fraud claim from the scope of section 301, subdivision (b), would, as stated in Smith v. Evening News Assn., supra, 371 U.S. 195, 200 [9 L.Ed.2d 246, 251] "stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law." Moreover, to permit such action to be maintained against a union agent individually would undermine the policy of the L.M.R.A. favoring early voluntary settlements of grievance disputes arising under collective bargaining agreements. (L.M.R.A., § 203 [29 U.S.C. § 173].) Settlement negotiations would be severely hampered if employee representatives had to be wary of possible future personal liability for making allegedly false promises. To be safe, union agents would insist on the exhaustion of formal grievance procedures rather than reach an early voluntary settlement agreement.
(6) We conclude that the demurrer to both causes of action of the amended complaint against Wyatt was properly sustained. It does not appear that under applicable substantive law there is any reasonable probability that the defects in the amended complaint can be cured by further amendment. In these circumstances, there was no abuse of discretion in sustaining the general demurrer without further leave to amend. (Vater v. County of Glenn, 49 Cal.2d 815, 821 [323 P.2d 85].)
The judgment is affirmed.
Kerrigan, Acting P.J., and Gabbert, J., concurred.
NOTES
[1] Pursuant to plaintiff's request under Code of Civil Procedure section 472d for a statement of the grounds of the ruling on demurrer, the court specified the following grounds: "As to the first cause of action, agent not liable when acting for disclosed principal and estopple [sic] by reason of arbitration. [¶] As to the second cause of action, statute of limitation."
[2] In reviewing the validity of the court's ruling on the general demurrer we are not confined to a consideration of the sufficiency of the reasons given. It is the validity of the ruling which is reviewable and not the court's statement of reasons for its action. (Patton v. Board of Harbor Commissioners, 13 Cal. App.3d 536, 544, fn. 7 [91 Cal. Rptr. 832]; Apelian v. County of Los Angeles, 266 Cal. App.2d 550, 554 [72 Cal. Rptr. 265]; Weinstock v. Eissler, 224 Cal. App.2d 212, 225 [36 Cal. Rptr. 537].)
[3] Section 301 of the L.M.R.A. provides:
"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
"(b) Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
"(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.
"(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization.
"(e) For the purposes of this section, in determining whether any person is acting as an `agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling."
[4] Although plaintiff alleged in both his initial and amended complaints that he is in business as a common carrier engaged solely in intrastate commerce, he does not seriously contend that he is beyond the pale of the Labor Management Relations Act. Nor could he. It is settled that under the act intrastate activities may be regulated if those activities have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions. (Labor Board v. Jones & Laughlin, 301 U.S. 1, 37 [81 L.Ed. 893, 911, 57 S.Ct. 615, 108 A.L.R. 1352]; National Labor Relations Bd. v. Niles Fire Brick Co., 124 F.2d 366, 369.) Because judicial interpretation of its jurisdictional power has been so broad, the National Labor Relations Board has determined that it should concern itself only with activities having a close relationship to and a substantial bearing upon interstate commerce. (N.L.R.B. v. Carteret Towing Company, 307 F.2d 835, 838.) An administrative determination that plaintiff's business has such an effect upon interstate commerce is evidenced by the board's decision certifying Local 467 as the exclusive bargaining representative of plaintiff's employees.
[5] Defendant also cites Navios Corporation v. National Maritime Union of America, 236 F. Supp. 657, affirmed per curiam 359 F.2d 853, cert. den. 385 U.S. 900 [17 L.Ed.2d 132, 87 S.Ct. 205], for the proposition that a union agent cannot be held liable under state tort law for his acts as a union agent. Navios is not dispositive of the issue before us. The question in Navios was whether a union agent could be sued individually on a common law cause of action for engaging in a secondary boycott. The court held that there was "no jurisdiction on common law principles to award damages under state law" for the alleged cause of action, citing Teamsters Union v. Morton, 377 U.S. 252 [12 L.Ed.2d 280, 84 S.Ct. 1253]. Morton held that union liability for activities constituting a secondary boycott must be governed by the Labor Management Relations Act and that the federal statute preempted state law.
[6] Although in Garmon the issue was whether state jurisdiction must yield when the activity which a state purports to regulate is arguably a concerted activity or an unfair labor practice within the compass of sections 7 and 8 of the L.M.R.A. (29 U.S.C. §§ 157 and 158), the policy considerations weighed by the court are applicable to the case at bench. The court held that states should be precluded from acting where the activity sought to be regulated is more than a "peripheral concern" of the L.M.R.A.
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785 S.W.2d 412 (1990)
Jerry REED, Appellant,
v.
The STATE of Texas, Appellee.
No. 05-88-01025-CR.
Court of Appeals of Texas, Dallas.
January 18, 1990.
Judgment Affirmed May 9, 1990.
*413 John H. Hagler, Dallas, for appellant.
Kathleen Walsh, Dallas, for appellee.
Before HOWELL, BAKER and BURNETT, JJ.
OPINION
BURNETT, Justice.
Jerry Reed appeals his conviction for possession of heroin. The trial court assessed punishment, enhanced by a prior conviction, at twenty years' confinement. Appellant raises two points of error. Because we agree with appellant that the trial court erred at the punishment stage in admitting a pen packet not properly authenticated, we reverse and remand.
The indictment charging appellant with the possession of heroin contained two enhancement paragraphs. The trial court found the allegations in the first enhancement paragraph to be not true. The trial court found the second enhancement paragraph, which alleged appellant had been convicted of burglary in 1974, to be true. During the punishment stage, the trial court admitted State's exhibit number three, a Texas Department of Corrections (TDC) pen packet containing records of appellant's 1974 burglary conviction. The exhibit contained a copy of the judgment and sentence of appellant's burglary conviction on file with the TDC. The records in the exhibit were duly attested by S.O. Woods, Jr., the record clerk of the TDC.
In his first point of error, appellant contends that exhibit number three was not admissible because the copy of the judgment and sentence in the pen packet did not reflect that the "original" copy received by the TDC was certified by the district clerk of the convicting court. Appellant relies on Dingler v. State, 768 S.W.2d 305 (Tex.Crim.App.1989), for this contention. In Dingler, the Court of Criminal Appeals held that for a pen packet to be admissible as a self-authenticated document, the copy of the judgment and sentence forwarded to the TDC by the clerk of the convicting court must be certified as an original on file in the clerk of the convicting court's office. Id. at 306. The State contends that Dingler is not instructive in the case before us because Dingler determined the admissibility of a pen packet under section 4 of article 3731a[1] of the Texas Revised Civil Statutes, not under rules 901 and 902 of Texas Rules of Criminal Evidence.
The State specifically contends that the pen packet was admissible under Texas Rule of Criminal Evidence 902, which provides in part:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
*414 (1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any state, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
. . . .
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraphs (1), (2), or (3) of this rule or complying with any statute or court rule prescribed pursuant to statutory authority.
TEX.R.CRIM.EVID. 902(1), (4) (emphasis added).
The State contends that a pen packet is admissible under rule 902(4) if the custodian of records at TDC certifies the copy of the judgment and sentence as constituting a true and correct copy of the documents on file at TDC. We disagree. The language in rule 902(4) allowing certification by "the custodian or other person authorized to make the certification" means the legal custodian of the original of the document. See King v. State, No. 12-87-00059-CR, slip op. at 8 (Tex.App.Tyler, Dec. 15, 1989, no pet.) (not yet reported). In the case before us, the clerk of the convicting court, not the custodian of records at the TDC, was the legal custodian authorized to certify the judgment and sentence. Requiring that the clerk of the convicting court certify the documents provides a necessary safeguard for the reliability of the matters stated in the copies of the original judgment and sentence. See King, slip op. at 8. Because the clerk of the convicting court did not certify the copy of the judgment and sentence provided by the custodian of the TDC, we hold that the contents of the pen packet were not "certified as correct by the custodian," and thus not admissible under rule 902.
The State also contends that the pen packet was admissible pursuant to Texas Rule of Criminal Evidence 901. Rule 901 provides that authentication is satisfied by evidence supporting a finding that the matter is what its proponent claims. The State argues that rule 901(b)(7) should control the admission of the pen packet. Rule 901(b)(7) provides:
(7) Public Records and Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
Tex.R.Crim.Evid. 901(b)(7).
The same concerns regarding the reliability of the copy of the judgment and sentence exist as to its admission under rule 901 as under rule 902. While the copy of the judgment and sentence is filed at the TDC, there is no assurance of reliability of the copy absent a certification from the clerk of the convicting court.
The State relies on Rodasti v. State, 749 S.W.2d 161 (Tex.App.Houston [1st Dist.] 1988), remanded, No. 424-88 (Tex.Crim. App., Nov. 1, 1989) as authority for the admissibility of the pen packet under rules 901 and 902. In Rodasti, the trial court admitted into evidence a pen packet which contained a copy of the judgment and sentence used for enhancement. While the contents of the pen packet were certified by the custodian of records at the TDC as constituting true and correct copies of the documents on file at the TDC, the copy of the judgment and sentence were not certified by the clerk of the convicting court. Id. at 163. The court of appeals held that the pen packet was self-authenticated and admissible under rules 901 and 902 of the Texas Rules of Criminal Evidence. Id. On appeal, the Court of Criminal Appeals remanded the case to the court of appeals with instructions to reconsider the court of appeals' previous opinion in light of the Court of Criminal Appeals' opinion in Dingler. *415 Rodasti, slip op. at 1. We hold, in light of Dingler, that because the copy of the judgment and sentence provided by the TDC had not been certified by the clerk of the convicting court, the pen packet was not properly authenticated, and thus was not admissible under Texas Rules of Criminal Evidence 901 or 902.
Because there was error in the admission of the pen packet, we must reverse the trial court's judgment unless we determine beyond a reasonable doubt that the error made no contribution to the punishment. Tex.R.App.P. 81(b)(2). Appellant was convicted of a second-degree felony. Appellant could have been punished, without any enhancement, by confinement for a term of not more than twenty years or less than two years. TEX.PENAL CODE ANN. § 12.33 (Vernon 1974). If one enhancement paragraph had been found true, appellant could have been punished by confinement for a term not exceeding ninety-nine years or less than five years. TEX.PENAL CODE ANN. §§ 12.32(a), 12.42(b) (Vernon 1974 & Vernon Supp.1990). While appellant was assessed punishment within the range set for a second-degree felony without any enhancement, we cannot determine beyond a reasonable doubt that the admission of the pen packet of appellant's 1974 burglary conviction made no contribution to the punishment. TEX.R.APP.P. 81(b)(2).
We sustain appellant's first point of error. Because of our disposition of appellant's first point of error, we find it unnecessary to consider appellant's second point.
We reverse the trial court's judgment and remand this cause to that court for further proceedings not inconsistent with this opinion. TEX.CODE CRIM.PROC.ANN. art. 44.29(b) (Vernon Supp.1990); see Ex parte Klasing, 738 S.W.2d 648, 650 (Tex.Crim. App.1987), overruled on other grounds, Ex parte Brown, 757 S.W.2d 367, 369 (Tex. Crim.App.1988); Kingsley v. State, 744 S.W.2d 191, 196-97 (Tex.App.Dallas 1987, pet. granted).
NOTES
[1] Act of June 21, 1951, ch. 471, 1951 Tex.Gen. Laws 830, 831-32, last amended by Act of May 20, 1975, ch. 280, § 1, 1975 Tex.Gen.Laws 666, 666-67 (deemed repealed as to criminal actions, effective September 1, 1986 (now TEX.R.CRIM. EVID. 902)).
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December 6, 2012
JUDGMENT
The Fourteenth Court of Appeals
SHARON ANN GRIBBLE, INDIVIDUALLY AND IN HER CAPACITY AS
GUARDIAN OF THE PERSON AND ESTATE OF MICHAEL RAY GRIBBLE,
Appellant
NO. 14-11-00856-CV V.
BRENT ALLEN LAYTON, Appellee
________________________________
This cause, an appeal from the judgment in favor of appellee, Brent Allen Layton,
signed, June 30, 2011, was heard on the transcript of the record. We have inspected the
record and find error in the judgment. We therefore order the judgment of the court below
REVERSED and REMAND the cause for proceedings in accordance with the court's
opinion.
We further order that all costs incurred by reason of this appeal be paid by
appellee, Brent Allen Layton.
We further order this decision certified below for observance.
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293 F.2d 618
Hermann H. KIND, Plaintiff-Appellee,v.Robert F. KENNEDY, Attorney General of The United States ofAmerica, Defendant-Appellant.
No. 328, Docket 26589.
United States Court of Appeals Second Circuit.
Argued April 21, 1961.Decided July 25, 1961.
Walter T. Nolte, Atty., Dept. of Justice, Washington, D.C. (Paul V. Myron, Acting Director, Office of Alien Property, Washington, D.C., Morton S. Robson, Acting U.S. Atty., Southern Dist. of New York, New York City, Arthur R. Schor, Atty., Office of Alien Property, Dept. of Justice, Washington, D.C., on the brief), for defendant-appellant.
Arnold T. Koch, New York City (Wormser, Koch, Kiely & Alessandroni, New York City, on the brief), for plaintiff-appellee.
Before WATERMAN, MOORE and SMITH, Circuit Judges.
LEONARD P. MOORE, Circuit Judge.
1
Plaintiff, a native-born citizen of the United States, brought this action against the Attorney General1 as successor to the Alien Property Custodian2 to recover the sum of $41,864.62 which had been vested in 1948 by the Custodian pursuant to Vesting Order No. 10,858. The property vested was a portion of plaintiff's interest in a trust created by the Will of his father; the reason alleged for the vesting was that plaintiff had acted or purported to act 'directly or indirectly for the benefit or on behalf of the aforesaid nationals of a designated enemy country (Germany) and, to the extent that he has so acted, is a national of a designated enemy country (Germany).' The trial court found that plaintiff at all times here involved resided in the United States, was a loyal citizen of the United States, that he had never made available or offered to make available any part of his interest in his father's estate to any enemy country, that he had not acted for the benefit of nationals of any enemy country and that he was not an enemy within the meaning of the Trading with the Enemy Act, as amended. Accordingly, judgment was awarded in plaintiff's favor for the amount demanded. The Custodian appeals.
2
The primary point advanced by the Custodian for reversal is that 'The Plaintiff is an 'Enemy' as a Result of his 'Enemy Taint." He claims that the 'enemy taint' concept was formulated by the United States Supreme Court in Clark v. Uebersee Finanz-Korporation, 1947, 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 88 and that such taint disqualifies plaintiff from obtaining any recovery in an action brought pursuant to Section 9(a) of the Trading with the Enemy Act, as amended (42 Stat. 1511; 50 U.S.C.A.Appendix, 9(a)). To establish this 'enemy taint' the Custodian relies upon a previous (1947) decision of this court in a Section 9(a) suit brought by Johanna M. Kind (plaintiff's mother) and Hermann H. Kind (plaintiff) as Trustees under the last will and testament of Hermann Kind (plaintiff's father), deceased v. Clark, Attorney General, 2 Cir., 1947, 161 F.2d 36, certiorari denied 1947, 332 U.S. 808, 68 S.Ct. 107, 92 L.Ed. 385. To determine the merits, if any, of the Custodian's claim, analysis must be made of the issues and facts then before the court in that case.
3
Plaintiff's father, a United States citizen, died in 1928 leaving his estate in trust, the income to his widow for life, the remainder to this three children, two daughters and plaintiff. During World War II the widow and plaintiff served as trustee. An asset of the estate was an indebtedness from a German firm named J. A. Henckels, of $130,000. This debt was secured by stock of a New York corporation, Graef & Schmidt, Inc. and a Canadian corporation, J. A. Henckels, Ltd. In 1939-1940 an arrangement was made whereby the Kind estate took over the New York and Canadian corporations' stock in satisfaction of the indebtedness. There was proof that there was an understanding between Hermann H. Kind and the German firm that after the estate had satisfied its $130,000 claim, any surplus would be returned to the German firm.
4
In 1943 the Custodian seized all the stock of the New York corporation which then stood in the name of the estate. After the war, the trustees of the estate brought a Section 9(a) suit for the return of the stock or an adjudication of a security interest therein. The district court directed the revesting of title in the trustees. Upon appeal this court held that 'the transfer of the stock was fictitious, its beneficial ownership remained in the Germans and was therefore subject to seizure by the United States,' but that 'since we hold that the sale never occurred, it follows that the estate retained its claim for $75,000 against Graef & Schmidt, any may therefore keep, as in reduction of that claim, the 'dividends' it received'; and that the 'estate also retained its pledgee's lien on the stock, and is therefdore now entitled to assert that lien for the unpaid balance of its claim.' The court also refused to hold that 'the estate, as such, is to be regarded as a wrongdoer.' The net result of the court's decision was to leave the stock vested in the Custodian but subject to the existing lien in favor of the estate thus preserving for the Custodian such surplus interest, if any, as would remain after satisfaction of the estate's claim.
5
Upon the trial of the present case, the Custodian claimed that because plaintiff had knowledge of the alleged understanding that any surplus value which the Graef & Schmidt stock might have after satisfaction of the estate's claim was to be held for the German company, plaintiff thereby acquired an 'enemy taint'; that he was an 'enemy' within the meaning of Section 9(a) of the Act; that this was so held in Kind v. Clark and is res judicata in this action; and that therefore plaintiff is ineligible to recover his property under the Act.
6
The facts developed upon the trial and the analysis of the decision in Kind v. Clark will not support these contentions. Kind v. Clark held only that the circumstances surrounding the purported transfer of the stock to the Kind estate were such as to make the transfer a nullity. No finding was made that plaintiff was an enemy or enemy tainted; nor would such a finding have been necessary. Any characterizations of plaintiff's conduct in that opinion relate only to the issues there presented, namely, the validity of the stock transfer. The conclusion of the court below that plaintiff was neither an 'enemy' nor 'enemy tainted' is clearly supported by the record. At most, plaintiff's participation in the transfer-- fully consummated prior to this country's entry into World War II-- made available to a German firm only a possible surplus after the estate's debt was satisfied and this amount was not to be turned over until after the war. The property seized was not related to this surplus, but rather was plaintiff's portion of the proceeds of a debt which arose many years before the war broke out in Europe. At no time did plaintiff attempt to make this or any of his other assets available to the Germans. There is nothing in the record to indicate disloyal motives on his part or that plaintiff was at any time 'enemy tainted'-- in fact, plaintiff's personal and professional contributions to the war effort and to civic affairs lead to the conclusion that he had always been a loyal American citizen.
7
Judgment affirmed.
1
Originally, the action was against Herbert Brownell, Jr., as Attorney General. Thereafter, his successor, William P. Rogers, was substituted. Upon assuming his duties as Attorney General, Robert F. Kennedy has become the defendant
2
For brevity, referred to as the 'Custodian.'
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<pre> United States Court of Appeals <br> For the First Circuit <br> <br> <br> <br>No. 98-2273 <br> <br> IN RE: COLONIAL MORTGAGE BANKERS CORPORATION, <br> <br> Debtor. <br> __________ <br> <br> CREFISA INCORPORATED, <br> <br> Plaintiff, Appellee, <br> <br> v. <br> <br> WASHINGTON MUTUAL BANK, F.A., <br> <br> Defendant, Appellant. <br> __________ <br> <br> HANS LOPEZ-STUBBE, TRUSTEE, <br> <br> Appellant. <br> <br> <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF PUERTO RICO <br> <br> [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br> <br> <br> Before <br> <br> Selya, Boudin and Lipez, <br> <br> Circuit Judges. <br> <br> <br> <br> Ivan R. Fernandez-Vallejo with whom Rodriguez & Fernandez, <br>Jorge Souss and Goldman Antonetti & Cordova, P.S.C. were on brief <br>for appellants. <br> Luis R. Montanez-Aviles with whom Montanez & Alicea Law <br>Offices was on brief for appellee. <br> <br> <br> <br> <br>August 2, 1999 <br> <br> <br> <br> BOUDIN, Circuit Judge. This appeal is taken from a <br>decision of the United States District Court for the District of <br>Puerto Rico reversing a decision of the federal bankruptcy court. <br>In substance, the district court sustained a claim by Crefisa, <br>Inc., requiring the bankruptcy trustee of Colonial Mortgage Bankers <br>Corporation ("Colonial") to pay over approximately $557,000 <br>comprising security for a note held by Crefisa. The background <br>events are somewhat complicated. <br> In the 1980s, Colonial was engaged in the business of <br>servicing mortgages. One of its clients was the Bowery Savings <br>Bank ("Bowery") (Washington Mutual Bank has now been substituted <br>for Bowery but it simplifies matters to refer only to Bowery). By <br>agreement, Colonial collected mortgage payments due to Bowery and <br>deposited them into Colonial accounts--in trust for Bowery--in two <br>different Puerto Rico banks: Financiero and Banco Santander. The <br>president of Colonial was Milton J. Ra. <br> In 1980, Ra began a set of transactions that led to the <br>present case by requesting a $500,000 loan from Caguas Central <br>Federal Savings Bank ("Caguas"), a bank with which Colonial, Ra, <br>or both had had past dealings. The loan to Ra, which may have <br>been irregular, involved Ra's execution on November 26, 1986, of <br>a promissory note due on demand for $500,000 in favor of Caguas. <br>On November 28, 1986, the loan was completed through the following <br>transactions: <br> Caguas made a $500,000 deposit representing <br> the loan into Ra's personal checking account <br> in the bank; <br> <br> Ra opened a new savings account at the bank <br> called a Golden Passbook account with a <br> $500,000 check drawn on his checking account; <br> <br> Ra made a written pledge of the Golden <br> Passbook account as collateral to secure his <br> $500,000 promissory note and any other current <br> or future debts to Caguas. <br> <br> The Golden Passbook account--the treasure trove in this <br>case--was opened as a personal savings account of Ra, but the <br>passbook bore the legend "Colonial Mortgage Bank, B.S.B., Corp." <br>(the "B.S.B." apparently standing for Bowery Savings Bank) and the <br>passbook was later shown to Bowery auditors to persuade them that <br>the account held funds in Colonial's name belonging to Bowery. <br>There is some indication that Ra later sought to transfer <br>ownership of the Golden Passbook account to Colonial but that <br>Caguas rejected this effort on the ground that it did not maintain <br>savings accounts for corporations. <br> In December 1987, Colonial filed for bankruptcy giving <br>rise to the present case. Puerto Rico financial authorities later <br>concluded that Colonial and Ra had diverted millions of dollars <br>from trust accounts that Colonial had managed and had channeled the <br>money into accounts at the Caguas bank where the funds were <br>expended for the benefit of Colonial and Ra. In all events, in <br>the same month as the Colonial bankruptcy, Bowery brought suit in <br>the district court seeking to recover from Colonial, Caguas, Ra <br>and Ra's wife about $1,000,000 in diverted Bowery funds. Bowery <br>Savings Bank v. Colonial Mortgage Bankers Corp., 87-874-RLA <br>(D.P.R.) <br> In April 1988, the bankruptcy court entered an order at <br>the behest of Colonial's bankruptcy trustee, Hans Lopez-Stubbe, <br>requiring Caguas to turn over the funds in the Golden Passbook <br>account to the trustee. The trustee's theory, it appears, was <br>that the funds, being held in the Golden Passbook account with a <br>passbook bearing Colonial's name, properly belonged to Colonial's <br>estate. In November 1989, Caguas paid over to the trustee <br>approximately $557,000 pursuant to the bankruptcy court order, the <br>amount representing the original principal of $500,000 plus <br>accumulated interest. <br> In 1990, Caguas failed, and the Resolution Trust <br>Corporation ("RTC") was appointed, initially as conservator for <br>Caguas and later as its receiver. Thereafter, the RTC on December <br>21, 1990, endorsed Ra's promissory note in favor of Caguas to <br>Banco Santander. The note was later re-endorsed by Banco Santander <br>to Crefisa, which is apparently a wholly owned subsidiary of Banco <br>Santander. The endorsement was part of a multi-million dollar sale <br>of Caguas' assets by the RTC to Banco Santander pursuant to a <br>purchase and sale agreement. But the question whether the terms of <br>the purchase and sale agreement are properly considered in this <br>case is one of the contested issues on this appeal. <br> On October 6, 1991, Crefisa brought an adversary <br>proceeding in the Colonial bankruptcy case asserting a security <br>interest in the Golden Passbook account; the claim was based on the <br>pledge of the Golden Passbook account that Ra had made to Caguas <br>on November 28, 1986, to secure his promissory note. Since the <br>funds in the Golden Passbook account had been turned over to the <br>trustee pursuant to the bankruptcy court's earlier order, the <br>relief sought by Crefisa was an order from the bankruptcy court <br>requiring the trustee to transfer the proceeds to Crefisa. <br> The bankruptcy trustee, supported by Bowery, opposed <br>Crefisa's request that the funds derived from the Golden Passbook <br>account be transferred to Crefisa and filed a discovery request to <br>identify the basis for Crefisa's claim to a security interest in <br>the account. In April 1994, Crefisa produced Ra's promissory note <br>to Caguas, whose markings showed that it had been endorsed <br>successively by the RTC to Banco Santander and by Banco Santander <br>to Crefisa. The trustee then moved to dismiss Crefisa's adversary <br>proceeding or for summary judgment; he asserted that Crefisa had <br>not established any interest in the Golden Passbook account since <br>the promissory note made no reference to any security and Crefisa <br>had provided no other evidence to support its claim to the <br>security. <br> After additional filings but no further pertinent <br>evidence from Crefisa, the bankruptcy court on January 25, 1995, <br>issued a decision in favor of the trustee and dismissed Crefisa's <br>complaint. In a nutshell, the bankruptcy court ruled that the <br>promissory note's transfer was governed by Puerto Rico's Negotiable <br>Instruments Law, which did not provide for automatic transfer of <br>the security for an assigned note, rather than by the Civil Code, <br>P.R. Laws Ann. tit. 31, 1 et seq.; and even if the Civil Code <br>were applicable to the transfer, its requirements for an automatic <br>transfer of a security interest had not been met as to third <br>parties, see P.R. Laws Ann. tit. 31, 3941. Since the promissory <br>note made no mention of security, Crefisa had not shown that it had <br>obtained Caguas' security interest in the account. The bankruptcy <br>court entered judgment against Crefisa, and Crefisa appealed to the <br>district court on March 3, 1995. <br> Three days later, on March 6, 1995, Crefisa filed a <br>motion in the bankruptcy court to amend the judgment, tendering <br>portions of the purchase and sale agreement dated December 21, <br>1990, between the RTC and Banco Santander for the sale of the <br>Caguas assets to Banco Santander. The bankruptcy judge later <br>denied the motion on the ground that it lacked jurisdiction because <br>of the then-pending Crefisa appeal to the district court. The <br>trustee also moved in the district court to strike the agreement <br>from the record on appeal, but in various orders in the spring of <br>1996, the district court denied the motion to strike and asked <br>Crefisa to submit a complete copy of the purchase and sale <br>document. Crefisa filings in June 1996 and November 1996 purported <br>to comply with this request and to add further information about <br>the RTC-Banco Santander transaction. <br> In July 1996, the trustee and Bowery moved to "dismiss <br>the appeal" to the district court, essentially arguing the merits <br>of the appeal and defending the bankruptcy court's decision. On <br>August 27, 1996, Crefisa opposed the motion but also argued the <br>merits, urging that the bankruptcy judge had erred. On September <br>14, 1998, the district court released a decision and judgment <br>reversing the bankruptcy court and determining that Crefisa was <br>entitled to claim a security interest in the Golden Passbook <br>account. <br> In its decision, the district court found that the <br>purchase and sale agreement between RTC and Banco Santander <br>confirmed the intent of the parties to effect a transfer of the <br>security interest. Alternatively, the court ruled that Caguas' <br>security interest in the Golden Passbook account had been <br>transferred by operation of law under the Civil Code by virtue of <br>transfer of Ra's promissory note from Caguas, through the RTC and <br>Banco Santander, to Crefisa; in the court's view the Negotiable <br>Instruments Law governed the transfer of the note and the Civil <br>Code provided for an automatic transfer of the security interest. <br> The trustee and Bowery now appeal, asking that we <br>reinstate the bankruptcy court's ruling and confirm the trustee's <br>right to the Golden Passbook account proceeds. Their first <br>argument is that as a procedural matter, the district court had no <br>business considering the purchase and sale agreement because it had <br>not been offered in evidence in the bankruptcy court; and their <br>second argument is that the district court's alternative reliance <br>on the Civil Code to effect an automatic transfer of the security <br>misreads the substantive law. (A third argument merely repeats <br>fragments of the first two.) <br> On the procedural issue, we sympathize with the district <br>court's desire to know the full story of the transfer but agree <br>with the trustee that the district court was not entitled to <br>consider the purchase and sale agreement. In an appeal from the <br>bankruptcy court, the district court sits in an appellate capacity, <br>Fed. R. Bankr. P. 8001; and, just as a circuit court is limited to <br>the district court record, 16A Wright, Miller & Cooper, Federal <br>Practice and Procedure 3956.2, at 337 (3d ed. 1999), so the <br>district court is normally limited to the evidentiary record <br>compiled in the bankruptcy court, Crawford v. Lamantia, 34 F.3d 28, <br>31 (1st Cir.), cert. denied, 514 U.S. 1032 (1995); In re Armorflite <br>Precision, Inc., 48 B.R. 994, 997 (D. Me. 1985). <br> In rejecting the trustee's motion to strike, the district <br>court said in substance that the purchase and sale agreement was <br>material to the dispute. This is at least arguably so. But when <br>a party that has favorable evidence fails to proffer it before the <br>trial court decides a matter, the fact that the evidence would have <br>been material if offered does not mean that it can be considered on <br>the appeal. The reason is obvious: the procedures used on <br>appellate review are not designed to vet new evidence or allow an <br>effective evidentiary response to it. <br> When the bankruptcy judge decided the trustee's motion to <br>dismiss or for summary judgment, the purchase and sale agreement <br>was not considered because Crefisa failed to submit it in <br>opposition to the trustee's motion. On review, the question for <br>the district court was whether the bankruptcy judge reached the <br>right decision on the record made by the parties. Crefisa is <br>mistaken in arguing that the district court was entitled to <br>consider the purchase and sale agreement as evidence of the <br>transfer of the security interest simply because the agreement was <br>physically annexed to Crefisa's later motion to amend the judgment. <br>See Kirshner v. Uniden Corp., 842 F.2d 1074, 1077 (9th Cir. 1988). <br> Of course, Crefisa could have sought review in the <br>district court of the bankruptcy judge's post-decision refusal to <br>enlarge the record. For that purpose, the agreement would be <br>available to the district court, like an offer of proof, for the <br>purpose of determining whether that refusal was error (but only for <br>that purpose). However, Crefisa makes no claim in this court that <br>the bankruptcy judge erred in denying the post-decision motion to <br>amend the judgment and there is no indication that that denial was <br>even appealed to the district court. <br> Limiting the evidence to that properly before the trier <br>of fact is not some ritual or formality. If Crefisa had offered <br>the agreement in the bankruptcy court in timely fashion, the <br>trustee would have been entitled to dispute the validity or <br>significance of the agreement or offer counter-evidence of his own. <br>The trustee lists for us some of his objections to the agreement, <br>saying inter alia that the document was incomplete, lacked a <br>signature page, is only an agreement for a future transaction, and- <br>-being between RTC and Banco Santander--does not transfer anything <br>to Crefisa. But a party objecting to evidence newly tendered on <br>appeal is not obliged to show unfair prejudice: the point is that <br>new evidence, which could have been offered in the trial court, is <br>not supposed to be proffered for the first time in an appellate <br>setting. <br> There are qualifications to every general rule. See 16A <br>Wright, Miller & Cooper, supra, 3956.4, at 349-50. Occasions <br>exist on which appellate panels do need to consider facts not <br>before the trial court (e.g., on claims of mootness), and <br>procedures exist for reopening judgments to consider newly <br>discovered evidence. Fed. R. Civ. P. 60(b)(2). But Crefisa has <br>pointed us to no exception or extraordinary circumstance that might <br>embrace the purchase and sale document submitted in this case--a <br>document that ought to have been known to Crefisa from the outset <br>and whose completeness and significance are open to substantial <br>questions. <br> This brings us to the trustee's attack on the district <br>court's alternative ground for its decision, namely, the court's <br>ruling that even apart from the agreement, the admitted endorsement <br>of the note by the RTC to Banco Santander and then by it to Crefisa <br>carried the security interest with it by operation of law. It is <br>common ground that the Negotiable Instruments Law, which provides <br>for the transfer of the note merely by endorsement, says nothing <br>about the transfer of security interests. The bankruptcy judge <br>took the view that Crefisa could not "pick and choose," using the <br>Negotiable Instruments Law to effect the assignment of the note and <br>the Civil Code to transfer the security. <br> But we read the Negotiable Instruments Law as inviting <br>supplementation wherever it is itself silent: "In any case not <br>provided for in this title [the Negotiable Instruments Law] the <br>rules of the Law Merchant, Civil Law and Equity shall govern." <br>P.R. Laws Ann. tit. 19, 386; see also P.R. Laws Ann. tit. 31, <br>12. Only if there is a conflict with respect to a negotiable <br>instrument does "this title" automatically prevail. E.g., Pars v. <br>Canety, 73 P.R.R. 386, 388 (1952). And nothing in the Negotiable <br>Instruments Law forbids a transfer of a security interest incident <br>to the endorsement of a note. <br> The next question, then, is whether Puerto Rico law does <br>provide that the assignment of a debt transfers a security interest <br>in property pledged to secure the debt. Crefisa relies directly on <br>the Civil Code provision, codified at P.R. Laws Ann. tit. 31, <br>3943, which says that "[t]he sale or assignment of a credit [i.e., <br>the right to collect a debt] includes that of all the accessory <br>rights, such as the security, mortgage, pledge, or privilege." The <br>district judge took section 3943 as providing an alternative ground <br>for upholding Crefisa's right to the security interest at issue in <br>this case. <br> It appears to be true that section 3943, in providing for <br>automatic transfer of security interests, has been treated without <br>much discussion as applying to negotiable notes. Credito Y Ahorro <br>Ponceno v. Gorbia, 25 F.2d 817 (1st Cir. 1928); Caguas Co., Inc. v. <br>Lopez, 59 P.R.R. 263, 271 (1941). However, the same subdivision of <br>the Civil Code containing section 3943 also contains a companion <br>provision, which reads: "The assignment of a credit, right, or <br>action shall produce no effect against a third person but from the <br>time the date is considered fixed, in accordance with sections 3273 <br>and 3282 of this title." P.R. Laws Ann. tit. 31, 3941. <br> Sections 3273 and 3282 are primarily evidence provisions <br>somewhat awkwardly adopted by section 3941 for substantive <br>purposes. One deals with proof of public instruments and the other <br>with proof of private instruments. Public instruments are <br>primarily those that have been notarized, P.R. Laws Ann. tit. 31, <br> 3271, and there is no indication in this record that the note was <br>transferred by a notarized document. Accordingly, the endorsed <br>note in this case appears to qualify (at best) as a private <br>instrument, as to which section 3282 provides in pertinent part: <br> The date of a private instrument shall be <br> considered, with regard to third persons, only <br> from the date on which it may have been filed <br> or entered in a public registry, from the <br> death of any of those who signed it, or from <br> the date on which it may have been delivered <br> to a public official by virtue of his office. <br> <br> Thus, coupling sections 3941 and 3282 together, the <br>language of the two provisions indicates that the transfer of "the <br>credit" embodied in the promissory note could have "no effect" <br>under the Civil Code against a third party until some document <br>evidencing the assignment of the debt was filed in a public <br>registry or delivered to a public official. So far as the record <br>shows, this has never occurred. And if the assignment of the debt <br>is not effective against a third party so far as the Civil Code is <br>concerned, it is hard to see how an automatic transfer of a <br>security interest incident to the transfer of the debt can be <br>effective under the Civil Code against a third party. <br> The district court recognized the objection based on <br>sections 3273, 3282, and 3941 but said that these sections dealt <br>with the effect of the assignments of credits "against a third <br>party," and had no "applicability" in this case. But the trustee <br>is formally a third party vis vis the assignment of the note <br>and/or security interest, and section 3941 is manifestly a <br>limitation on section 3943. While the transfer of the note <br>remains valid under the Negotiable Instruments Law regardless of <br>section 3282, it is hard to see how the transfer of a security <br>interest under section 3943 can be given effect based on an <br>assignment of a debt that is not allowed under section 3941 to <br>affect a third person unless and until the assignment is <br>registered. If there is an answer to this objection, neither the <br>district court nor Crefisa has supplied it. <br> There is a possible answer. It is fairly easy to guess <br>why section 3941 was framed: without notice of a transfer, a third <br>party could easily be prejudiced by the private transfer of a debt <br>or by the automatic transfer of an ancillary security interest <br>designed to secure a debt. Seemingly, section 3941 is designed to <br>secure such notice, at least constructively, by a requirement of <br>public filing of the assignment. Of course, a negotiable <br>instrument is designed to be transferred without notice to third <br>parties; but the transfer of a security interest, not mentioned in <br>the note, presents the same danger as the transfer of any property <br>other than a negotiable instrument. <br> One might reasonably argue that even if the language of <br>section 3941 supports the trustee, its rationale does not apply to <br>him in this instance. After all, the trustee did not take any <br>action (except for litigation expenses) in reliance on Caguas' <br>"ownership" of the security interest. This is far from a case in <br>which the trustee purchased an object from a prior owner only to be <br>faced with a claim that the owner had previously made a secret <br>assignment or sale to another. Thus, one could argue that the <br>trustee should not be able to invoke section 3941 even though <br>literally read it appears to shield him from the effect of section <br>3943. <br> This policy argument has not been made by Crefisa and it <br>may or may not be valid. Sometimes statutes are read in accordance <br>with their rationale even in the teeth of statutory language, but <br>other times they do enact rules not perfectly fitted to their <br>rationale. See Level 3 Communications, Inc. v. Federal Ins. Co., <br>168 F.3d 956, 958 (7th Cir. 1999) (Posner, C.J.). Puerto Rico <br>precedent in this case is at best obscure. Cf. Hernandez v. <br>Iglesias, 58 P.R.R. 406 (1941). And needless to say, we have not <br>had the benefit of any research by the parties on this issue. <br>Crefisa has forfeited the policy argument by failing to make it. <br>Executive Leasing Corp v. Banco Popular, 48 F.3d 66, 67-68 & n.3 <br>(1st Cir. 1995). <br> About the best we can say in this instance is that we find <br>the policy argument plausible but not compelling. In these <br>circumstances, we are not going to rescue the district court's <br>judgment on a ground that was not argued to us and may or may not <br>be correct. We have mentioned this possible escape hatch only to <br>be sure that our opinion is not taken to foreclose such an argument <br>if made by the parties in a similar case in the future. Since the <br>problem arises primarily from language in the Civil Code, the <br>replacement of the Negotiable Instrument Law is no assurance against <br>a recurrence of this issue. <br> For the reasons stated, we conclude that on the record <br>before it the bankruptcy court correctly dismissed Crefisa's <br>adversary petition and that the district court erred in reversing <br>the bankruptcy court. Accordingly, the judgment of the district <br>court is reversed.</pre>
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 6 2000
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-6187
v. (D.C. No. CR-98-61-R)
(W. Dist. Okla.)
RAFER TYRONE SOWELL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, KELLY and HENRY, Circuit Judges.
After pleading guilty to possessing 90 grams of cocaine base (crack) with
intent to distribute in violation of 21 U.S.C. § 841(a)(1), Rafer Tyrone Sowell
challenges his sentence of 168 months in prison. Mr. Sowell asserts the district
court erred in (1) failing to grant a sentence reduction pursuant to U.S.S.G. §§
2D1.1(b)(6) and 5C1.2, and (2) applying the relevant conduct rule to hold him
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
responsible for a quantity of drugs for which he disclaims personal knowledge or
responsibility. We affirm.
Mr. Sowell argues that he should have been granted a reduction in sentence
under U.S.S.G. § 2D.1.1(b)(6), which applies the “safety valve provision” of
U.S.S.G. § 5C1.2. Section 5C1.2 is intended to moderate sentences for certain
relatively less culpable defendants who meet a list of five criteria set out in 18
U.S.C. § 3553(f) and copied in the Guidelines. The Government does not dispute
that Mr. Sowell met the first four of the five criteria: namely, that he had no more
than one criminal history point, posed no threat of violence, did not cause death
or serious bodily injury in the course of his offense, and was not an organizer or
leader of others in carrying out the offense. See U.S.S.G. § 5C1.2.
The parties disagree, on the other hand, over application of the fifth
criterion, that “the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense or offenses
that were part of the same course of conduct or of a common scheme or plan,”
whether or not the information proves to be useful to further Government
investigation. Id. Mr. Sowell provided information to the Government as part of
his plea agreement, and in return the Government sent to the district court a
confidential memorandum acknowledging his assistance. Mr. Sowell argues that
this memorandum sufficed to meet the fifth criterion of § 5C1.2, and that the
-2-
court should have granted a sentence reduction sua sponte upon recognizing that
the criteria were met.
This “safety valve” question was never raised during sentencing
proceedings below. Normally, failure to object to a factual issue during the
sentencing phase will preclude appellate review, though we do “recognize a
narrow exception and review a legal question involving application of the
sentencing guidelines for plain error.” United States v. Gilkey, 118 F.3d 702, 704
(10th Cir. 1997); see also Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention
of the court.”). The plain error exception applies only to errors which are
“particularly egregious, as well as obvious and substantial,” and which would lead
to a “miscarriage of justice” if not corrected on appeal. Gilkey, 118 F.3d at 704,
quoting United States v. Ivy, 83 F.3d 1266, 1295 (10th Cir. 1996); see also United
States v. Olano, 507 U.S. 725 (1993) (discussing the “plain error” standard).
When a factual issue is not raised below, there is no record upon which to
base our review. See United States v. Saucedo, 950 F.2d 1508, 1518 (10th Cir.
1991), overruled on other grounds, Stinson v. United States, 508 U.S. 36 (1993).
Thus, “questions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991), quoted in Saucedo, 950 F.2d at 1518. Whether a
-3-
defendant meets the fifth section 5C1.2 criterion is a question of fact. See, e.g.,
United States v. Roman-Zarate, 115 F.3d 778, 784-85 (10th Cir. 1997) (reviewing
the record under a fact-based, “clear error” standard and determining the
defendant did not meet the burden of proving he shared all the information he
knew); United States v. Verners, 103 F.3d 108, 110-11 (10th Cir. 1996) (same).
Although Mr. Sowell argues that the facts were undisputed because the
Government admitted he had shared potentially useful information, the section
5C1.2 standard requires that a defendant prove he voluntarily and truthfully
disclosed all the information in his possession, which can be a difficult standard
to meet. See, e.g., United States v. Acosta-Olivas, 71 F.3d 375, 378-79 (10th Cir.
1995) (listing cases in which defendants were unable to meet the standard). Had
he raised the section 5C1.2 issue prior to sentencing, the district court could have
evaluated the record and made specific findings regarding his ability to meet the
criteria, see United States v. Gama-Bastidas, 142 F.3d 1233, 1242 (10th Cir.
1998), but since he did not raise the issue, any failure of the district court to do so
sua sponte can not rise to the extreme level of a “plain error.” 1
1
The Government asserts in its brief that the safety valve question, as a
factual issue, should be waived entirely by Mr. Sowell’s failure to inject it into
the proceedings below. Because we conclude there was no plain error in this
situation, we do not consider the question of waiver.
-4-
Mr. Sowell also asserts that the district court incorrectly applied the
“relevant conduct rule” of U.S.S.G. § 1B1.3(a)(1)(B) in attributing to him
responsibility for roughly 1,700 grams of cocaine base found in the closet of a
bedroom in which he had slept. Through application of this rule, a defendant may
be held responsible for the “relevant conduct” of co-conspirators, whether or not
the crime was charged as a conspiracy. The district court’s calculation of
applicable drug quantity is a finding of fact, which we will review for clear error.
See United States v. Green, 175 F.3d 822, 837 (10th Cir. 1999), cert. denied, 120
S. Ct. 132 (1999).
At sentencing, the Government was responsible for proving by a
preponderance of the evidence the quantity of drugs for which Mr. Sowell would
be held responsible. See id. at 836-37. Mr. Sowell accepted responsibility for
1,096 grams of cocaine base at sentencing. The government alleged that after
application of the relevant conduct doctrine he should be held responsible for
over 5,400 grams. Since the amount of drugs becomes moot above 1,500 grams
(1.5 kilograms), however, the government confined its arguments to the 1,700
grams found in the apartment of the girlfriend of Mr. Sowell’s co-conspirator,
Rodney Arceneaux. The drugs were in the closet of a bedroom in which Mr.
Sowell had spent the night, but he asserted that he knew nothing about them. The
drug packaging bore none of his fingerprints, and the evidence provided no reason
-5-
to believe he had ever entered the closet. Nevertheless, in calculating a
defendant’s base drug possession amount at sentencing, the district court is not
limited to drugs that were personally owned or handled by the defendant. See
United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998). “Instead,
the court may sentence the defendant based on the total amount of drugs which he
reasonably foresaw or which fell within the scope of his particular agreement with
the conspirators.” Id. (internal quotations omitted); see also U.S.S.G. § 1B1.3,
comment. n.2.
The scope of this “relevant conduct” may differ from the scope of the
criminal conspiracy as a whole, and includes “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.”
United States v. Melton, 131 F.3d 1400, 1403 (10th Cir. 1997). At sentencing, the
district court should “analyze, and make ‘particularized findings’ about, the scope
of the specific agreement the individual defendant joined in relation to the
conspiracy as a whole.” Id. at 1404. Here, the district court found that Mr.
Sowell and Rodney Arceneaux, the established owner of the 1,700 grams, were
co-conspirators who worked together in bringing the drugs to Oklahoma City.
This finding was supported by testimony and telephone call transcripts implying
that the two men planned to sell a substantial quantity of drugs while in town.
The Presentence Investigation Report reveals further details from which the
-6-
district court could reasonably conclude that Mr. Sowell and Mr. Arceneaux
engaged in several years of joint crack distribution activities in Houston and
Oklahoma City and that they were known to deal in quantities ranging above two
kilograms. It was therefore not clear error for the district court to determine that
the particular 1,700 grams of cocaine base in question were a foreseeable part of
the drug distribution conspiracy and thus applicable to Mr. Sowell’s base
possession amount through the doctrine of relevant conduct.
For the foregoing reasons, Rafer Tyrone Sowell’s sentence of 168 months’
imprisonment is hereby AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
-7-
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00028-CR
In re Mary Belton
Nathaniel Drew Carter III, Appellant
v.
The State of Texas, Appellee
FROM THE CRIMINAL DISTRICT COURT OF DALLAS COUNTY
NO. F-0273284-IH, HONORABLE JANICE L. WARDER, JUDGE PRESIDING
O R D E R T O S H O W C A U S E
PER CURIAM
This is a contempt proceeding ancillary to Nathaniel Drew Carter's appeal from a
judgment of conviction for burglary. The subject of this proceeding is Mary Belton, court reporter
for the Criminal District Court of Dallas County.
The reporter's record was originally due to be filed on February 3, 2003. On April
10, 2003, after the reporter failed to respond to the Court's overdue notice, the Court ordered the
preparation and filing of the record no later than May 18, 2003. The record was not received as
ordered. On July 25, 2003, the Court ordered Mary Belton to tender the record for filing in this
cause no later than August 15, 2003. She failed to tender the record as ordered.
On August 19, 2003, the Court ordered Mary Belton to appear before it on September
10, 2003, to show cause why she should not be held in contempt and sanctions imposed for her
failure to obey the July 25, 2003, order of the Court. On September 8, the Court received a letter
from Mary Belton, her first and only communication to this Court. In the letter, she requested a
postponement of the show-cause hearing and promised that the record in this cause would be
tendered for filing on September 15, 2003. The Court granted the postponement. The record has
not been received.
Mary Belton is hereby ordered to appear in person before this Court on the 29th day
of October, 2003, at 8:30 o'clock a.m., in the courtroom of this Court, located in the Price Daniel,
Sr. Building, 209 West 14th Street, City of Austin, Travis County, Texas, then and there to show
cause why she should not be held in contempt and sanctions imposed for her failure to obey the July
25, 2003, order of this Court.
It is ordered October 16, 2003.
Before Chief Justice Law, Justices B. A. Smith and Patterson
Do Not Publish
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619 F.2d 856
Fed. Sec. L. Rep. P 97,347Michael P. CRONIN, on his own behalf and on behalf of allother persons similarly situated, Plaintiff-Appellant,v.MIDWESTERN OKLAHOMA DEVELOPMENT AUTHORITY et al.,Defendants-Appellees.Fred A. W. FRANKE, on his own behalf and on behalf of allother personssimilarly situated, Plaintiff-Appellant,v.MIDWESTERN OKLAHOMA DEVELOPMENT AUTHORITY et al.,Defendants-Appellees.
Nos. 77-1640 to 77-1646.
United States Court of Appeals,Tenth Circuit.
Argued and Submitted Jan. 22, 1979.Decided April 8, 1980.
J. Michael Rediker of Ritchie, Rediker & Warren, Birmingham, Ala. (Roger J. Nichols of Nichols & Rose, Beverly Hills, Cal. and Robert A. Jackson of Cassil, Jackson & Hall, Oklahoma City, Okl., with him on brief), for plaintiffs-appellants Michael P. Cronin and Fred A. W. Franke.
Thomas J. Kenan of George, Kenan, Robertson & Lindsey, Oklahoma City, Okl. (Robert C. Bailey of McClelland, Collins, Sheehan, Bailey & Bailey, Oklahoma City, Okl., with him on brief), for defendants-appellees Andrew J. Haswell, J. Dell Gordon and Haswell and Gordon.
1
James W. Shepherd, Oklahoma City, Okl. (A. P. Murrah, Jr., and Andrews, Mosburg, Davis, Elam, Legg & Bixler, Inc., Oklahoma City, Okl., with him on brief), for defendant-appellee Fred W. Rausch, Jr.
2
Reid E. Robison, Oklahoma City, Okl. (Reford Bond, Oklahoma City, Okl., and McAfee, Taft, Mark, Bond, Rucks & Woodruff, Oklahoma City, Okl., of counsel, with him on brief), for defendants-appellees Smith, Leaming & Swan, a Law Partnership, and its Partners, Hal D. Leaming and Roger H. Swan.
3
William W. Wiles, Jr. of Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, Okl., for defendants-appellees Blankenship & Harbour, Lawrence Blankenship and David M. Harbour.
4
William D. Curlee of Lytle, Soule & Emery, Oklahoma City, Okl., for defendants-appellees Sec. Bank and Trust Co. and Guaranty Trust Co.
5
Before SETH, Chief Judge, BREITENSTEIN and DOYLE, Circuit Judges.
6
WILLIAM E. DOYLE, Circuit Judge.
INTRODUCTORY
7
These two cases are each consolidated appeals from a series of orders of the U. S. District Court for the Western District of Oklahoma. Involved are two securities fraud actions brought under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j; SEC Rule 10b-5, 17 C.F.R. § 240.10b-5; antifraud provisions of the Oklahoma Securities Act, Okla.Stat.Ann. title 71 § 408; and common-law theories of fraud and negligence. Both cases were instituted as class actions on behalf of purchasers of two industrial development revenue bond issues of the Midwestern Oklahoma Development Authority (MODA). Both bond issues are now in default. Numerous defendants were named in each complaint, including the issuer, its officials, the private corporations which were to receive the bond proceeds, underwriters, bond counsel, and indenture trustees, as well as the broker-dealers who sold plaintiffs the bonds. Only the bond counsel and the indenture-trustee banks are parties to this appeal.
8
The trial judge granted summary judgment motions across-the-board of appellee-bond counsel and banks. The court also entered two orders under Fed.R.Civ.P. 54(b) directing entry of final judgment in each case so as to facilitate the appeals. Additional orders of the trial were also under Fed.R.Civ.P. 30(g). These restrained each plaintiff from taking further depositions until certain sums had been paid into the clerk of the court, as a sanction for alleged failure by the plaintiffs' counsel to cooperate with defendants' counsel by releasing the latter from continued attendance at the taking of the deposition of one R. J. Allen. The orders in each case were separately consolidated for purposes of appeal. Although the two cases themselves have not been consolidated, they do involve parties and issues sufficiently interrelated so that a single opinion is appropriate at this stage.
9
We have concluded that there was insufficient time allowed by the trial court to the plaintiffs to permit them to conduct adequate discovery on the merits of their cases. The plaintiffs were entitled to develop the evidence and formulate the applicable legal standards. The trial court is directed to vacate all of the summary judgment orders entered in each case. The cases as a whole are ordered to be remanded to the trial court with instructions to allow the parties additional time for discovery on the merits and for trial. We also vacate the several orders in each case entered under Fed.R.Civ.P. 30(g) in accordance with the terms of the mandate set forth at the end of the opinion.
10
There is one other trial court order involved in these appeals, that is, the order dated March 31, 1977, directing plaintiff Cronin to serve a copy of the exhibit attached to the Nichols affidavit on each opposing party in the Cronin case. It is our understanding that Cronin has already complied with this order; therefore, no action is necessary with respect to it.
STATEMENT OF FACTS
11
The plaintiffs-appellants in each case, Michael P. Cronin and Fred A. W. Franke, are former Vietnam-era prisoners of war. Each were victims of a flagrant fraud which was initiated and brought about by a Florida municipal bond broker-dealer, Alexander & Allen, Inc., its officers and its salesmen. The principals of Alexander & Allen, including salesman Thomas A. Preston who sold Cronin and Franke the bonds in these cases, have been the subject of a civil injunctive action by the SEC and criminal proceedings as well. For a full discussion of the fraudulent activities of Alexander & Allen, Inc., see SEC v. R. J. Allen & Assoc., 386 F.Supp. 866 (S.D.Fla.1974). The crux of it is that representatives of Alexander & Allen preyed upon former POWs returning to the United States who had substantial sums of back pay accumulated during their years of imprisonment. These former POWs received substantial cash on release and were solicited to purchase high-risk industrial development bonds, with false representations that the bonds were safe and secure investments. The district court in SEC v. R. J. Allen & Assoc., supra, found that Alexander & Allen was a "boiler room," that is, a dealer offering securities of certain issuers in large volume through an intensive selling campaign, without disclosure of material facts concerning the issuers. Id. at 874. Although the principals of Alexander & Allen were named as defendants in these cases, two are in prison, all are apparently insolvent, and therefore none are parties in this appeal.
12
Among the securities featured by Alexander & Allen in its sales campaigns were industrial development bonds of the Midwestern Oklahoma Development Authority (MODA). MODA is an Oklahoma public trust organized in 1969 as a financing agency to attract industry to an area near the Clinton-Sherman Air Force Base in Oklahoma.
THE CRONIN CASE
13
Appellant Cronin purchased one $5,000 MODA Harper Industries 9% bond, Series 1972 B, due in 1985, through Alexander & Allen in August of 1973. The Harper Industries bonds were issued by MODA in two series, Series A and Series B, on the same date in July 1972 for the purpose of financing development of a plastic salt and pepper shaker manufacturing business. Supposedly, tool and die equipment was to be obtained, and leasehold improvements to a MODA-owned building at the Clinton-Sherman Industrial Airpark were to be made from the bond proceeds. The bond issue, which had a face amount of $1.3 million, was underwritten by United City Corp. (not a party to this case). Defendant-appellee Guaranty Trust Co. of Ponca City, Oklahoma served as indenture trustee. Two different law firms each of which are appellees here acted as bond counsel: Haswell & Gordon prepared a bond opinion concerning the legality and tax status of the Series B bonds; Fred W. Rausch, Jr. prepared an opinion concerning the Series A bonds. When Cronin received his Series B bond in the mail after purchase, the Rausch bond opinion addressed to the Series A bonds was enclosed. Cronin read the Rausch opinion, but he did not receive nor, of course, read a copy of the Haswell & Gordon opinion concerning the Series B bonds.
14
Cronin received interest on his Harper Industries bond coupon in January 1974, but his July 1974 coupon was returned unpaid. After learning that the bond issue was in default, he contacted the Navy JAG office in Washington, D. C. He served as a witness at the SEC proceedings against Alexander & Allen. Later, Cronin contacted a private attorney and filed this class action under federal and state securities laws, as well as common-law theories of fraud, negligence and willful and wanton conduct. Cronin also sought punitive damages from the defendants, and an accounting firm from the defendant bank. Cronin's 10b-5 claim alleged that the defendants, including the appellee bond counsel and bank, violated or aided and abetted violations of Rule 10b-5 in the issuance of the Harper Industries bonds. Cronin claimed that the defendants were under a duty to disclose, but failed to disclose the following allegedly material facts:
15
1. That MODA had no adequate screening process to determine whether Harper Industries would earn sufficient revenues to pay the bonds;
16
2. That most of the MODA industrial development bond issues were in default;
17
3. That Harper Industries was undercapitalized. Consequently, after the bond issue the bonds would likely default;
18
4. That Harper Industries, as a single-product company, would have a high risk of failure;
19
5. That Harper Industries was a new and unseasoned company;
20
6. That Harper Industries would be located in a remote area of Oklahoma without a skilled or adequate labor force;
21
7. That defendants would divert part of the bond proceeds for their own benefit;
22
8. That the 30% underwriting discount was excessive and would have revealed the risky and speculative nature of the bond issue to the average buyer if disclosed;
23
9. That the bank was not qualified to act as indenture trustee.
THE FRANKE CASE
24
Appellant Franke purchased $10,000 worth of MODA Chill Can Mfg. 8% bonds due January 1, 1987, through Alexander & Allen in August 1973. The Chill Can bonds were issued by MODA on July 25, 1973 to finance a business manufacturing self-cooling containers and cans. The face amount of the issue was over $1.9 million. Alexander & Allen originally contracted to underwrite the Chill Can bonds, but defaulted on their underwriting contract. The bonds were finally underwritten by Stewart Securities Corp. and Fidelis Securities Corp., who became the underwriters. Each of the underwriters were originally named as defendants, but are not parties to this appeal. Appellee Security Bank & Trust Co. served as indenture trustee. Three different law firms, all appellees here, were involved with the Chill Can bond issue: Haswell & Gordon were originally designated by MODA as bond counsel, but withdrew three weeks before the closing date of the issue. Smith, Leaming & Swan and Blankenship & Harbour each prepared bond opinions on the legality and tax-exempt status of the issue. Franke read both the Smith, Leaming opinion and the Blankenship opinion after purchasing the bonds.
25
Franke received interest on the Chill Can bonds through July 1974, but in January 1975 his coupons were returned unpaid. On learning that the bonds were in default, Franke also retained counsel and brought a securities fraud class action paralleling the lawsuit filed by Cronin. Like Cronin's, Franke's complaint charged that defendants violated or aided and abetted violations of SEC Rule 10b-5 in issuance of the Chill Can bonds. Franke claimed that defendants, including the appellees here, were under a duty to disclose but failed to disclose the following allegedly material facts:
26
1. That MODA had no adequate screening procedures with which to determine whether Chill Can Manufacturing, Inc. would earn sufficient revenues to pay the bond interest;
27
2. That MODA's experience with IDBs such as the Chill Can issue was such that most issues ended in default;
28
3. That Chill Can Manufacturing, Inc., even after the bond issue, would be undercapitalized and that the bonds would likely be in default;
29
4. That Chill Can Manufacturing, Inc. was a single-product company with a high risk of failure;5. That the company had never built a prototype of the can;
30
6. That the company would be located in a remote part of the state without a skilled or adequate labor force;
31
7. That certain defendants would divert part of the bond proceeds for their own benefit;
32
8. That the underwriting discount of 20% was excessive and would, if disclosed, indicate to the average buyer that the bonds were a highly risky and speculative security;
33
9. That the indenture trustee was unskilled.
THE DISTRICT COURT DECISIONS
34
The trial judge denied class certification in both the Cronin and the Franke cases. The plaintiffs have not attempted to appeal from these orders.
35
On November 12, 1976, the trial judge granted summary judgment for the law firm of Haswell & Gordon and its principals in the Franke case. The court ruled that, since the firm had withdrawn prior to the closing of the "Chill Can" bonds, it had not participated in the closing. The firm delivered no legal opinion, nor did it pass on the adequacy of any legal documents concerning the bonds.
36
The trial court also granted summary judgment for the trustee banks. The judge believed that the banks' duties were limited by the terms of their indenture agreements, and that therefore the banks had no duty of disclosure. The judge found that there was no evidence of scienter, as required by Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Further, the judge stated that the banks were not involved in structuring the bond issue or in selling the bonds to the plaintiffs. The court stated that the plaintiffs had not relied on the banks' conduct, and that reliance could not be presumed under Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972) because the banks were under no duty of disclosure to the plaintiffs.
37
The court's rationale for granting summary judgment for the bond counsel who did participate in the closings (Fred W. Rausch, Jr. and Haswell & Gordon in the Cronin case, and Smith, Leaming & Swan and Blankenship & Harbour in the Franke case) was similar to the rationale used for summary judgment for the indenture trustees. The court ruled that the plaintiffs had presented no evidence of scienter, in that the lawyers had no knowledge of the fraud committed by Alexander & Allen. The court found that the bond counsel's duties were contractually limited to such matters as expression of an opinion on the legality of the issue under state law and that the undisclosed facts had no bearing on this question; instead, that the omitted facts went to the economic feasibility of the project. The court believed that it was not appropriate to arbitrarily expand the obligations and potential liability of bond counsel to encompass a duty to investigate the economic soundness of bond issues. In the order pertaining to Rausch, the court stated that the connection with the plaintiff was even more remote, since Rausch's opinion covered a different series from the Series B bond purchased by Cronin. In the order concerning Haswell & Gordon in the Cronin case, the court found significant the fact that Cronin never read the Haswell & Gordon opinion.
38
The court also granted summary judgment against the plaintiffs on all of their state law claims, on grounds that the claims were barred by the applicable statutes of limitations, and, in the case of plaintiffs' tort theories, on grounds that the defendants owed no duty to the plaintiffs, citing Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139 (1931).
ISSUES TENDERED BY APPELLANTS
39
On this appeal, Cronin and Franke raise three issues. First, they question the legal standards for liability of bond counsel and indenture trustees under the antifraud provisions of the securities laws. They contend that bond attorneys and trustee banks may be liable, at least as aiders and abettors, if the legal standards are satisfied, to the same extent as any other participants in securities transactions. Second, Cronin and Franke question the propriety of the trial court's summary judgment orders. They argue that, contrary to the trial judge's rulings, there exist substantial and disputed issues of fact and that summary judgment should, therefore, have been denied. A related question is whether the trial court afforded the plaintiffs an adequate opportunity to complete discovery on the merits of the case. Third and finally, the plaintiffs argue that the monetary sanctions imposed by the trial court under Fed.R.Civ.P. 30(g) in connection with taking the deposition of R. J. Allen were unwarranted.
I.
40
COMMENTS ON THE PROCEEDINGS IN THE DISTRICT COURT
41
The pleadings allege that both the attorneys and the banks were guilty of violations of Rule 10b-5 both as principals and as aiders and abettors. The trial court's summary judgment orders have not distinguished between the two theories, and it would be presumptuous for us to discuss these approaches in the abstract. Whether the claims are sufficient under either the accessory or the principal theory must await development of the facts.
42
The trial judge's summary judgment orders are replete with conclusory statements that no duty was owed by the defendants to the plaintiffs Franke and Cronin. This again is dependent on facts, not on conclusions. Our conclusion at this premature stage of the proceedings is that either theory would be possible depending upon the ultimate evidence.
43
There is one aspect connected with the remedy problem which deserves mention. That is the trial court's conception that the express fraud that was perpetrated by Alexander & Allen through their salesman Preston was the basic element in the alleged unlawful violation, and that the plaintiffs were required to establish that the defendant-bond lawyers and banks were privy to these acts. This is not necessarily so if the underwriter and the defendants are shown to have had participation in the issuance of the bonds and thus owed a duty to all of the buyers to reveal the facts including the depleted value of the bonds, and if the defendant-lawyers and banks knowingly aided the underwriter in the issuance of value-depleted bonds. Thus, conceivably there could be an aider and abettor claim or a claim based upon the theory that the defendants were principals. We mention this to illustrate the great importance of extending to defendants an opportunity to fully develop the facts surrounding the issuance of the bonds as well as all of the other background facts to be used at trial once the discovery is complete.
44
The defendants urge that the judge's ruling that there was a failure to establish existence of scienter on the part of these defendants was a correct one. Whether such element can be established depends again on whether there is evidence to establish the essential element of intent or reckless disregard of truth or falsity.
45
Similarly, reliance is a question of fact and not a question of law as the trial court appears to treat it. When causation is referred to in the present context, at least, it is synonymous with the element of reliance, but in this instance the problem is not one involving express representations. Instead, the contention of the plaintiffs is that there has been a failure or omission on the part of defendants to reveal material and relevant facts. It is obvious that if there was a failure to bring home facts that were known to the defendants and which they were required to reveal, the condition is such that there cannot be express proof of reliance and reliance is presumed. Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972).
II.
INSUFFICIENT TIME FOR DISCOVERY ON THE MERITS
46
The main thrust of plaintiffs' argument and of this opinion is that the discovery was prematurely cut short, and the consequence of this was that they were disabled from developing the facts and evidence supportive of their claim; that, further, in the proceedings below they were unable to offset the affidavits and motions for summary judgment of the defendants.
47
The shortness of time is revealed by a summary of the calendar. The complaint in Cronin was filed on January 6, 1976, and that in Franke was filed on February 20, 1976. Soon thereafter, on April 19, 1976, an order was entered by the trial court staying discovery on the merits of the case pending determination of the class issue. On December 29, 1976, the trial court entered its order denying certification of the class. This automatically terminated the stay on discovery and plaintiffs were then free to conduct discovery. On January 7, 1977, notice was served to take the deposition of R. J. Allen on January 14, 1977. On that date the deposition was only partially completed, and on February 10, 1977, plaintiffs served notice to take the depositions of ten additional witnesses during the latter part of April 1977. Summary judgment as to all of the defendants was granted before this discovery was completed. It was brought to the attention of the trial court that the discovery was incomplete at the time of the issuance of the summary judgments.
48
The time span between the filing of the summary judgments and their grant was short. In the Cronin case, Guaranty Trust Co. filed its motion for summary judgment on January 2, 1977. It was granted February 17, 1977. Haswell and Gordon's motion was filed November 18, 1976. It was granted February 18, 1977. The Rausch summary judgment motion was filed February 9, 1977. It was granted March 18, 1977. In Franke, the summary judgment motion of Smith, Leaming & Swan was filed April 1, 1976 and granted October 8, 1976. Haswell and Gordon's motion was filed in July 1976, and it was granted November 12, 1976. Blankenship & Harbour's motion was filed December 3, 1976 and granted February 18, 1977. The motion of Security Bank and Trust Company was filed January 21, 1977 and was granted in less than a month, on February 17, 1977.
49
The summary judgment is not a favored device in a case such as this, involving as it does a number of complex factual issues. The various elements of common law fraud as well as 10b-5 fraud are factual. When you add to that condition the curtailment of discovery, the judgments are on their face questionable.
50
Considering then that these causes are highly complex, and considering also the fact that the legal responsibility of bond lawyers and the banks escrow holders is a new, relatively undeveloped issue, while the court should carefully and judiciously supervise the case, it should not prematurely terminate it. We reject the contention of the defendants that the plaintiffs were estopped to complain about the incompleteness of the record on the ground that the judgments were not final within the provisions of Rule 54(b). The defendants say that the plaintiffs had full opportunity to continue discovery and to show that material issues of fact were present and that they voluntarily brought the case to this court. This, however, loses sight of the fact that the atmosphere of the case was difficult, if not impossible, for the plaintiffs, and understandably they sought a fresh start. It was not only the haste of the trial court, it was the atmosphere of stress which pervaded the proceedings which created the difficulty.
III.
FED.R.CIV.P. 30(g) SANCTIONS
51
The final issue which we are asked to consider is the propriety of the order directing the plaintiffs to reimburse the defendants' costs and lawyers' fees incurred by them in connection with their attendance at the deposition of R. J. Allen. The plaintiffs gave written notice of the deposition to the defendants in six separate lawsuits. These included three cases pending in Alabama, one in Kansas, and the Franke and Cronin cases pending in Oklahoma.
52
The deposition was commenced on January 14, 1977 in Kingsville, Texas. The plaintiffs' counsel announced that he would first inquire of Allen with respect to general matters pertaining to all six cases, after which he would inquire as to the cases pending in Alabama and Kansas and, lastly, as to the two Oklahoma cases. After the general examination was completed at three o'clock in the afternoon, plaintiffs' counsel proceeded to question Allen on matters relevant only to cases other than the Oklahoma cases, but reserved the right to reopen the deposition as to any of the cases if something relevant to them was elicited. Counsel for the defendants in Franke and Cronin felt obliged to remain in attendance to protect the interests of their clients. The deposition was never reopened as to the Franke and Cronin cases. Efforts to postpone the deposition until an agreeable date in these cases were unsuccessful. Plaintiffs' counsel refused to release defendants' counsel from further attendance unless they agreed not to seek reimbursement from plaintiffs for expenses incurred in connection with the deposition. Finally, on the evening of Sunday, January 16, 1977, by stipulation, the deposition in Franke and Cronin was postponed until February 22, 1977, and counsel were excused.
53
Defendants Rausch, Security Bank & Trust Co., Guaranty Trust Co. and Haswell and Gordon moved for reimbursement under Rule 30(g), Fed.R.Civ.P., for attorneys' fees and costs for the additional and unnecessary time spent attending those portions of the Allen deposition which did not pertain to their cases. After a hearing, the trial court found that the plaintiffs had failed to properly proceed with the deposition as required by Rule 30(g)1 and ordered the plaintiffs to deposit sums totaling approximately $5,000 with the clerk of the court to reimburse the defendants for the period of time they were required to be in attendance when the deposition was not proceeding on issues relevant to Franke and Cronin. The court also restrained the plaintiffs from taking further depositions until the money had been deposited with the clerk of the court, and a further order was entered that no party in the Franke or Cronin cases were to attempt to take depositions jointly with depositions in cases filed in other districts.
54
The plaintiffs argue that Rule 30(g) requires that counsel fail to attend a noticed deposition as well as fail to proceed therewith before sanctions are imposed. This argument is inconsistent with the plain language of the rule as well as with its practical spirit and must be rejected. Attendance without proceeding forward with a deposition is sufficient to invoke the provisions of Rule 30(g). See Detsch & Co. v. American Products Co., 141 F.2d 662 (9th Cir. 1944).
55
Plaintiffs also claim that it was not unreasonable to refuse to release counsel in the Franke and Cronin cases because matters relevant to the cases were discussed during all portions of the deposition. It is further argued that all six of the cases involved interrelated nationwide fraudulent schemes. It is too early in the proceedings of these cases to determine the truth of this contention.
56
The order granting reimbursement is therefore stayed pending further proceedings. The trial judge should reconsider the propriety and the amount of the reimbursement order following the final disposition of these cases.
57
A question remains as to the propriety of the restraint against further deposition taking by the plaintiffs until the reimbursement monies are deposited with the court. There is no authority for this sanction in Rule 30(g), and no case law to support it has been found. Further, the order was unnecessarily severe under the circumstances and amounted to excessive punishment. That portion of the order must be vacated.
58
SETH, C. J., will file a separate opinion.
1
The applicable language of Rule 30(g) states:
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.
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306 S.W.3d 195 (2010)
Jason JARVIS, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 92893.
Missouri Court of Appeals, Eastern District, Division Two.
March 16, 2010.
Alexandra Johnson, Assistant Public Defender, St. Louis, MO, for appellant.
Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
Prior report: 250 S.W.3d 439.
ORDER
PER CURIAM.
Jason Jarvis (Movant) appeals the judgment of the St. Francois County Circuit Court denying his Rule 29.15 motion for post-conviction relief. Movant asserts that the motion court clearly erred in denying his claim that his defense counsel was ineffective for failing to call a witness. We affirm.
We have reviewed the briefs of the parties and the record on appeal and find the motion court's decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b).
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419 A.2d 940 (1980)
FIRST NATIONAL CONSUMER DISCOUNT COMPANY, a corporation of the State of Pennsylvania, Plaintiff Below, Appellant,
v.
John W. FULLER, Jr. and Barbara A. Fuller, his wife, Defendants Below, Appellees.
Supreme Court of Delaware.
Submitted February 15, 1980.
Decided August 27, 1980.
Rehearing Denied September 18, 1980.
L. Kent Wyatt (argued) of Aerenson, Balick & Ferrara, Wilmington, for plaintiff-appellant.
Alene S. Berkowitz (argued) of Knecht, Greenstein, Schagrin & Berkowitz, Wilmington, for defendants-appellees.
Before DUFFY, QUILLEN and HORSEY, JJ.
*941 PER CURIAM:
We state the facts with heavy reliance on the letter opinion of the Superior Court and the briefs filed in this Court.
In September, 1965, the defendants, John and Barbara Fuller, purchased their family home in Brandywine Hundred (Delaware residential property). Since the time of the purchase, the property has been subject to a first mortgage. The defendants are the principal and sole owners of John W. Fuller & Sons, Inc. (the corporation), a Delaware corporation, in the plumbing and air-conditioning business.
On October 29, 1973, plaintiff First National Consumer Discount Company (First National) made a loan to the corporation in the amount of $20,000.00. The entire obligation of the corporation, consisting of the net proceeds plus interest and charges, was $40,920.00 which was payable in monthly installments of $341.00 over a ten-year period. The judgment note is signed by the Fullers in both their corporate capacity and as individual guarantors. As security for the loan, the Fullers, as guarantors of the corporation, gave mortgages to First National on Delaware real property owned by the Fullers including a second mortgage on the Fullers' Delaware residential property.
The corporation failed to make the payments which are due and First National claims a balance of $26,147.00, which figure is not conceded by the defendants. On February 21, 1978, First National filed a foreclosure complaint for the amount due with a view to a levy on the Delaware residential property.
The defendants claim that the obligation relied upon is unenforceable because of the Delaware law governing secondary mortgage loans found at 5 Del.C., Ch. 31. The plaintiff argues that the Secondary Mortgage Act does not apply to this obligation because the Delaware residential property serves merely as collateral and guaranty for payments on a loan made to a corporation. The Court below disposed of this contention with the following language:
"In my view, the plaintiff's position cannot be reconciled with the purpose of the language of the Secondary Mortgage Loan Act. The Act appears to have been designed to protect Delaware residents from predatory secondary mortgage loan practices, exorbitant charges, and misleading advertising. The provisions of the Act would be almost meaningless if they could be so easily circumvented because the applicability of the Act is deemed to be conditioned upon the particular status of the loan recipient. The defendants' home was subjected to the risk of foreclosure whether the loan was made to defendants personally or to a corporation owned by them with their property pledged to secure it. There is no language in the Act which suggests the distinction proposed by defendants. The Maryland Court of Appeals, in discussing a substantially similar act, stated the very simple proposition that:
"`... if a loan within the meaning of a secondary mortgage loan under the Secondary Mortgage Loan Law is made by a lender as defined by the law, the loan is subject to the provisions of the Secondary Mortgage Loan Law.' Schmidt v. Beneficial Finance Company of Frederick, Md. App., [285 Md. 148] 400 A.2d 1124 (1979) "I am persuaded that the loan to the defendants is controlled by the terms of the Secondary Mortgage Loan Act."
We agree with the conclusion of the Superior Court in this respect.
There is no dispute that the loan documents involved in this case violate certain provisions of the statute governing secondary mortgage loans including provisions relating to powers of attorney, acceleration *942 clauses and interest charges. Consequently, this Court need not examine in detail the provisions set forth in the loan papers and the provisions of the statute violated thereby. Nor do we see any compelling reason why the Court should consider on appeal for the first time arguments of the plaintiff based on due process or choice of law, even if it be assumed there might be some merit to the arguments, an assumption we find not likely to have much basis in fact. These issues can frequently involve factual matters appropriately explored at the trial level and we find in the facts of this case no injustice in a foreclosure for failure to raise the issues below. Supreme Court Rule 8.
Thus, we conclude that the statute is applicable to the transaction in question and turn our attention to the second question dealt with by the Court below, the section of the statute dealing with enforceability of a loan not made in compliance with the statute. The language of this section found at 5 Del.C. § 3129 reads as follows:
"No obligation arising out of a secondary mortgage loan shall be enforceable in the courts of this State unless such loan was negotiated and made in full compliance with the provisions of this chapter."
The Superior Court found the 1966 statute provided for a forfeiture of the money loaned based on the language of the statute and the fact that the statute was copied from a similar New Jersey act which has been so construed. See Oxford Consumer Discount Co. v. Stetanelli, N.J.Super.App. Div., 102 N.J.Super. 549, 246 A.2d 460 (1968), N.J.Super.App.Div., 104 N.J.Super. 512, 250 A.2d 593 (1969), aff'd N.J.Supr., 55 N.J. 489, 262 A.2d 874 (1970). These decisions, however, coming as they do after the enactment of our statute, are not viewed as presumptively "borrowed" by our General Assembly. Heckman v. Heckman, Del. Supr., 245 A.2d 550, 551, ftnt. 1 (1968). In our judgment, it is not necessary to determine whether the statutory language requires the construction that the lender vis-a-vis the borrower must forfeit the principal amount of the loan as well as the contracted for interest and service charges. It is arguable that the statute should be considered as primarily directed to the potentially oppressive terms of the loan contract. Even giving the statute a literal meaning, such a reading may not foreclose restitutional recovery from the borrower of the principal amount on some equitable basis independent of the loan contract. But that question need not be decided in this case.
As we see it, this case is narrower. The defendants here are individual guarantors for the corporation and the loan was admittedly for the corporation's benefit. The obligation of the individual guarantors is clearly one "arising out of a secondary mortgage loan" and can in fact be considered as within the category of potentially oppressive terms of such borrowing. In this context, the language of the statute bars enforcement of this "obligation arising out of a secondary mortgage loan".
The judgment of the Superior Court is affirmed.
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413 F.2d 878
UNITED STATES of America, Plaintiff-Appellee,v.Darrell James BROWN, Defendant-Appellant.
No. 23156.
United States Court of Appeals Ninth Circuit.
June 27, 1969.
Rehearing Denied August 15, 1969.
Darrell J. Brown, pro se.
Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Howard B. Frank, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG and DUNIWAY, Circuit Judges.
BARNES, Circuit Judge:
1
Appellant in propria persona takes this appeal from a district court decision denying relief in a collateral proceeding, designated as a "Motion to Vacate Sentence or for a Writ of Coram Nobis." Appellant has mislabeled his petition. He is not entitled to relief under Federal Rule of Criminal Procedure 35 because his sentence is not itself illegal. Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Coram Nobis is not available, since he is still in custody. Cf. Fed.R.Civ.P. 60(b). Hence, we treat the petition filed below as a motion under 28 U.S.C. § 2255. It was denied in the district court, and we affirm.
2
We quote from the order of the district court judge (Judge Ferguson):
3
"On March 7, 1951, petitioner was indicted with three other codefendants for violation of 18 U.S.C. § 2114 — Robbery from Mails.1 This indictment alleged that on January 16, 1951, in Los Angeles County, the four defendants robbed the Postmaster at Pacoima, California, of $2,085.26 and in effecting the robbery put in jeopardy the life of the Postmaster by the use of a .32 caliber revolver.
4
"On March 12, 1951, the petitioner was arraigned on the charge by the late Judge William C. Mathes. Plaintiff requested the appointment of an attorney, and George H. Pratt, Esq., was appointed by Judge Mathes.
5
"Judge Mathes continued the arraignment of the petitioner until March 14, 1951, for the purpose of entering a plea.
6
"On March 14, 1951, the petitioner pleaded guilty. Before accepting the plea, Judge Mathes read the indictment, and the provisions of 18 U.S.C. § 2114. A discussion ensued whether or not a mandatory twenty-five years was required. Judge Mathes was most positive that he would not accept a plea until petitioner was fully advised. The matter was then put over to later in the day to provide more consultation between the petitioner and his attorney.
7
"When the cause was subsequently called again, the petitioner again pleaded guilty. Judge Mathes carefully questioned the petitioner to determine whether or not his plea was intentionally and voluntarily made with complete awareness of the consequences of the plea. Judge Mathes states `Of course, you understand that upon giving this plea of guilty you have no hope of leniency? The law compels the Court to mete out the punishment of a twenty-five year prison sentence. Do each of you understand that?' The petitioner replied that he did.
8
"Judge Mathes accepted the guilty plea and sentenced the petitioner to the mandatory twenty-five years.
9
"On September 21, 1967, the petitioner, in proceeding number 67-1389-FW, filed in this court a motion pursuant to 28 U.S.C. § 2255, contending that Judge Mathes did not comply with Rule 11 of the Federal Rules of Civil [Sic] Procedure prior to accepting the plea of guilty.
10
"The motion was heard by Judge Frances C. Whelan of this court, and on January 18, 1968, he filed his Memorandum Decision and Order denying the 2255 motion. Judge Whelan decided that the plea was voluntary, was made with understanding of its consequences and the petitioner did not have an erroneous belief in regard to the mandatory sentence.2
11
"There was no appeal from Judge Whelan's Order and it is binding in this proceeding. In addition, however, an independent review of the record requires this court to conclude the same as did Judge Whelan.
12
"The petitioner in this proceeding now claims that the sentence of Judge Mathes was illegal. The sentence was legal. A reading of 18 U.S.C. § 2114 is clear that under the wording of the indictment by which petitioner was charged `life in jeopardy by the use of a dangerous weapon' requires a mandatory imprisonment of twenty-five years. Judge Mathes was not in error.
13
"In regard to petitioner's claim that he was in error in not understanding that Judge Mathes was required to impose a mandatory twenty-five year sentence, the record and Judge Whelan's decision in the 2255 motion lay to rest the claim. The petitioner in his argument attached to his complaint concedes that Judge Mathes was extremely cautious in accepting the guilty plea. There is no question that the petitioner knew that the sentence of twenty-five years was mandatory." C.T. 28-30.
14
Our own examination of the transcript of the proceedings had before the sentencing judge shows that most of appellant's contentions are completely frivolous.
15
After the filing of appellant's opening brief, the Government's brief, and appellant's reply, appellant sought from this court, and received, permission to file a supplemental pleading. We have considered the cases cited therein, and find nothing therein to cause us to come to any conclusion other than to affirm the sentence, based as it was upon a clearly uncoerced plea of guilty, made with a full understanding on appellant's part of the consequences of such plea.
16
Appellant's reliance upon McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), relating to compliance with Federal Rule of Criminal Procedure 11, is misplaced, for it was held not to be retroactive in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969).
17
We put aside the question of whether or not a person's life can be put into jeopardy by the use of a dangerous weapon, to wit, a .32 revolver, whether loaded or unloaded. Many a gun has been used as a dangerous weapon without its being fired.
18
Appellant raises the question as to whether or not the gun used in the holdup could be fired; and if not, had he placed the Postmaster's life in jeopardy.
19
This point was raised in mitigation of punishment prior to sentence. The trial judge immediately invited the appellant, with his codefendants, to consider the possibility of pleading guilty "to a portion of this charge. They might deny putting the life in jeopardy. * * *" (C.T. 39.) Two of the codefendants asked for further delay, and obtained it, but appellant asked for, and received an immediate sentence. cf. Wagner v. United States, 264 F.2d 524 (9th Cir. 1959); LaClair v. United States, 241 F. Supp. 819, 828 (N.D.Ind.1965), and cases cited.
20
Smith v. United States, 309 F.2d 165 (9th Cir. 1962), is not similar on its facts. There the petitioner was unrepresented by counsel at his trial, and misadvised by Government counsel. Compare, Alexander v. United States, 290 F. 2d 252 (5th Cir. 1961).
21
Affirmed.
Notes:
1
(not in Judge Ferguson's order) 18 U.S.C. § 2114Mail, money or other property of United States. Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.
2
(not in Judge Ferguson's order) Judge Whelan stated in this regard: "It appears, therefore, that there is no basis whatsoever for petitioner's motion and petition." C.T. 26
DUNIWAY, Circuit Judge:
22
I dissent. Most of Brown's contentions are clearly without merit, as my brother Barnes' opinion demonstrates. But there is one as to which Brown should be permitted to amend, and, if he can allege sufficient facts, to have a hearing. That is his claim that he did not put the life of the person robbed in jeopardy by the use of a dangerous weapon. Unless he did that, he is not guilty of the aggravated offense of which he was convicted, and he has already served six years more than the ten-year maximum prescribed for the lesser offense of which he is admittedly guilty. Thus this is one of those rare cases in which it appears that the petitioner may not be guilty, rather than that there was some defect in the proceedings that may require a new trial even though he be guilty. When such a claim is advanced, I think that it should not be summarily disposed of, without a hearing, unless the record does indeed "conclusively show that the prisoner is entitled to no relief." (28 U.S.C. § 2255; emphasis added). Here, I do not find the record conclusive.
23
Brown asserts that he did not have an "intelligent understanding" because:
24
"(a) The evidence in this case showed only a violation of the simple offense of robbery by force and not the aggravated offense of putting life in danger, or, assault.
25
(b) Defendant on March 14, 1951, entered a plea of guilty with a misunderstanding of the nature of the offense founded on the erroneous definition given the defendants and the Court by counsel for the Government."
26
No facts whatever are stated in support of these allegations. Moreover, the transcript of the sentencing hearing shows that the court inquired whether defendants, including Brown, understood that they could plead "partially guilty to a portion of this charge? They might deny putting the life in jeopardy by the POWER [sic] of a dangerous weapon." Nevertheless, Brown stood on his plea, fully understanding that it required the court to impose a 25-year sentence. And the transcript contains nothing indicating that government counsel gave the court any definition of the charge. If this were all, I would be disposed to affirm.
27
But there is more. The court's inquiry that I have just quoted occurred at the time of sentencing, the plea having been taken a few days before. It was prompted by the following colloquy between the court and Brown's counsel:
28
"MR. PRATT: If your Honor please, there isn't any legal ground why sentence should not be pronounced but I would like to call your Honor's [sic] to the fact that the indictment charges that they assaulted the postmistress, which is technically true, but they didn't actually do any physical violence to her; the assault was wholly by means of a revolver WHICH COULD NOT BE FIRED (?)
29
THE COURT: There is no question but what they are pleading guilty to the charge, is there?
30
MR. PRATT: No, there isn't, your Honor. I just wanted to call your Honor's attention to the fact put the charge `assault,' that there wasn't any language `physical assault.'
31
THE COURT: That wouldn't affect the situation any, would it?
32
MR. PRATT: No, I don't think it would.
33
THE COURT: They are pleading guilty to the charge of putting her life in jeopardy by the USE of a dangerous weapon.
34
MR. PRATT: Yes, that is right, your Honor.
35
THE COURT: And that is the portion of the charge which makes mandatory a 25 year sentence of imprisonment.
36
MR. PRATT: I understand that. They do, too, your Honor."
37
The transcript was written up from the reporter's notes, apparently by someone else, and may well not be entirely accurate. The capitalized language and question mark indicate doubt on the part of the person writing up the transcript. Nevertheless, this colloquy does indicate to me that there may have been confusion in the minds of all parties as to the meaning of the phrase "puts his life in jeopardy by the use of a dangerous weapon."
38
As is shown in the careful opinion in LaClair v. United States, N.D. Ind., 1965, 241 F.Supp. 819, 824-826, the law as to its meaning was in a state of some confusion in 1951, when Brown pleaded guilty. The trial judge's comment "That wouldn't affect the situation any, would it?" can be read as meaning that "an objective state of danger" is not required. Yet since 1951, it has become settled in this and other circuits that an objective state of danger must exist. Wagner v. United States, 9 Cir., 1959, 264 F.2d 524, 530; United States v. Donovan, 2 Cir., 1957, 242 F.2d 61, 63; Dorrough v. United States, 5 Cir., 1967, 385 F.2d 887, 893-894; Smith v. United States, 5 Cir., 1960, 284 F.2d 789, 791-792. See also the following cases construing similar language in 18 U.S.C. § 2113(d), dealing with bank robbery: Wilcox v. United States, 9 Cir., 1967, 381 F.2d 450, 451; Smith v. United States, 9 Cir., 1962, 309 F.2d 164; United States v. Roach, 3 Cir., 1963, 321 F. 2d 1, 5; Meyers v. United States, 5 Cir., 1941, 116 F.2d 601, 603 (predecessor section 588b(b) (a)); Wheeler v. United States, 8 Cir., 1963, 317 F.2d 615, 618.
39
If in fact the gun could not be fired, either because it was not loaded or for some other reason, and if in fact it was not used in such a manner, even though it could not be fired, as to put the life of the postmistress in an objective state of danger, then Brown is not guilty of the aggravated offense.
40
I would vacate the order and remand with directions to the trial court (1) to permit Brown to allege, in detail and under oath, so that he would be subject to the penalties of perjury, exactly what happened at the robbery, so far as use of the gun is concerned, and, (2) if such allegations are sufficient, to hold a hearing and grant such relief, if any, as may be proper. Naturally, I express no opinion as to the veracity of Brown's claims.
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[Cite as Cleveland v. St. Elizabeth Health Ctr., 2012-Ohio-1472.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ANTONIO CLEVELAND, )
ADMINISTRATOR OF THE ESTATE OF )
TELINA CLEVELAND, )
)
PLAINTIFF-APPELLANT, ) CASE NO. 10-MA-151
)
VS. ) OPINION
)
ST. ELIZABETH HEALTH CENTER, ET )
AL., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 08CV1823
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Plaintiff-Appellant Atty. Christopher M. Mellino
Atty. Michael E. Lyford
200 Public Square, Suite 2900
Cleveland, Ohio 44114
For Defendants-Appellees Atty. Matthew G. Vansuch
Atty. Shirley J. Christian
2235 E. Pershing St., Suite A
Salem, Ohio 44460
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 28, 2012
[Cite as Cleveland v. St. Elizabeth Health Ctr., 2012-Ohio-1472.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Antonio Cleveland, the Administrator of the Estate of
Telina Cleveland, appeals from a Mahoning County Common Pleas Court judgment
in favor of defendants-appellees, Dr. B. David Collier and Ohio Imaging Associates,
Inc., on appellant’s medical malpractice claim.
{¶2} On November 13, 2007, 40-year-old Telina Cleveland went to the
emergency department at St. Elizabeth Health Center with severe pain in her left leg.
She reported to the emergency room doctor that the pain was in her left calf. Telina
was sent to the radiology department for an ultrasound of her leg. An ultrasound
technician performed the ultrasound examination. The ultrasound did not include
Telina’s calf. The ultrasound images were then given to Dr. Collier, the on-duty
radiologist, for interpretation. He reported that there was no deep vein thrombosis
(DVT) in Telina’s leg. Telina was discharged from the hospital with a diagnosis of leg
cramps.
{¶3} Two days later, Telina suffered a fatal pulmonary embolism. An
autopsy revealed extensive thrombus in the deep veins of Telina’s left leg, some of
which had broken off, travelled to her lungs, and caused the pulmonary embolism
that resulted in her death.
{¶4} Appellant filed a complaint on April 30, 2008, against appellees, St.
Elizabeth, and several other defendants alleging medical malpractice that resulted in
Telina’s death. Dr. Collier is employed by Ohio Imaging Associates, Inc.
{¶5} The case proceeded to a jury trial against appellees and St. Elizabeth.
During the course of the trial, appellant reached a settlement with St. Elizabeth. The
jury then returned a verdict in favor of appellees. Appellant filed a motion for new
trial, which the trial court denied.
{¶6} Appellant filed a timely notice of appeal on September 21, 2010.
{¶7} Appellant raises two assignments of error, the first of which states:
{¶8} “THE MANIFEST WEIGHT OF THE EVIDENCE AT TRIAL SHOWED
DEFENDANT-APPELLEE B. DAVID COLLIER, M.D. WAS NEGLIGENT.”
-2-
{¶9} Appellant argues here that the evidence clearly established that Dr.
Collier was negligent. He contends that Dr. Collier’s own expert testified that he was
negligent for not knowing the hospital’s protocol regarding DVT ultrasound
examinations. He further contends that the evidence was uncontroverted that Dr.
Collier was responsible for supervising ultrasound technicians, that the ultrasound
technician did not follow the hospital’s DVT ultrasound protocol, and that the
ultrasound technician did not perform a complete ultrasound examination of Telina’s
leg.
{¶10} Appellant goes on to argue that the trial court erred in denying his
motion for a new trial because competent, credible evidence did not exist to support
the verdict. The only evidence to support the verdict, appellant argues, was Dr.
Collier’s own self-serving testimony.
{¶11} Judgments supported by some competent, credible evidence going to
all the material elements of the case must not be reversed, as being against the
manifest weight of the evidence. C .E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d
279, 376 N.E.2d 578, syllabus (1978). See, also, Gerijo, Inc. v. Fairfield, 70 Ohio
St.3d 223, 226, 638 N.E.2d 533 (1994). Reviewing courts must oblige every
reasonable presumption in favor of the lower court's judgment and finding of facts.
Gerijo, 70 Ohio St.3d at 226, (citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77 [1984]). In the event the evidence is susceptible to more than one
interpretation, we must construe it consistently with the lower court's judgment. Id.
In addition, the weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts. Kalain v. Smith, 25 Ohio St.3d 157, 162, 495
N.E.2d 572 (1986).
{¶12} “In order to establish medical malpractice, it must be shown by a
preponderance of evidence that the injury complained of was caused by the doing of
some particular thing or things that a physician or surgeon of ordinary skill, care and
diligence would not have done under like or similar conditions or circumstances, or by
the failure or omission to do some particular thing or things that such a physician or
-3-
surgeon would have done under like or similar conditions and circumstances, and
that injury complained of was the direct and proximate result of such doing or failing
to do some one or more of such particular things.” Bruni v. Tatsumi, 46 Ohio St.2d
127, 346 N.E.2d 673, paragraph one of the syllabus (1976).
{¶13} We must examine the evidence presented to determine if it supports
the jury’s verdict.
{¶14} Dr. Collier was appellant’s first witness. Dr. Collier admitted that he
was previously convicted of making materially false statements to a federal
investigator. (Tr. 76). Dr. Collier testified that he had no recollection of the day in
question, of interpreting the images at issue, of reviewing the scan, or of discussing
the study with Tracy Melfi, the ultrasound technician who performed the scan. (Tr.
48-49). He further testified that at the time of Telina’s ultrasound, he was not aware
that the hospital had a protocol for ruling out DVT. (Tr. 49-50). One of the four rules
in the hospital protocol is to examine the area of pain to rule out thrombus or fluid
collection.
{¶15} Dr. Collier stated that as a radiologist, he does not see the patient when
an ultrasound is performed. (Tr. 55). However, the ultrasound technician works
under his supervision. (Tr. 55). He stated that his job is to review the images taken
by the technician to make sure that the study is of good technical quality, to see that
it is a complete examination, and to look for DVT. (Tr. 60). Dr. Collier stated that
although the technician records her opinion, he performs his own review of the
images and reaches his own conclusion. (Tr. 63). He testified that it was his job to
make sure that Telina did not have a blood clot. (Tr. 66).
{¶16} Dr. Collier testified that at the time of reviewing the scan, the
information he had was that the emergency room doctor was looking for a DVT in the
left leg and the patient had symptoms of DVT. (Tr. 58). He stated that had he known
Telina had complained of calf pain, he would have instructed Melfi to scan Telina’s
leg below her knee, including the calf veins. (Tr. 77). However, he had no
knowledge at the time of the scan that Telina had complained of calf pain. (Tr. 78).
-4-
And Dr. Collier acknowledged that if Telina had a clot in her lower leg, and an
ultrasound was done only of her upper leg, the clot would go unnoticed. (Tr. 85).
{¶17} Dr. Collier acknowledged that the autopsy report stated that Telina had
a blood clot in the popliteal vein. (Tr. 80). He stated, however, that he examined
Telina’s popliteal vein on November 13, 2007, and it was normal. (Tr. 80). But he
did not examine her calf. (Tr. 81).
{¶18} Dr. Collier testified that Telina’s scan was complete and was not
required to go below her knee. (Tr. 74). He disagreed that in order to rule out DVT in
all cases the entire leg must be scanned. (Tr. 75).
{¶19} Dr. David Jackson was the emergency room doctor who examined
Telina and ordered her ultrasound. Dr. Jackson testified that upon arriving at the
hospital, Telina was first seen by the triage nurse, then by the physician’s assistant,
and then by him. (Tr. 98). Telina reported that she had pain in her left calf for
several days. (Tr. 96). Dr. Jackson stated that in response to his concern that Telina
might have DVT, he ordered an ultrasound from radiology of her left leg. (Tr. 103,
105). The order sheet indicated an ultrasound of the lower, left extremity, to rule out
DVT. (Tr. 106). Dr. Jackson expected that the ultrasound would be of Telina’s entire
leg, including her calf. (Tr. 108, 112).
{¶20} Dr. Jackson stated that if an ultrasound is positive for DVT, the patient
is admitted and treated with anticoagulants. (Tr. 109). Specifically, Dr. Jackson
testified that he would not have discharged Telina if he had known there were blood
clots in her leg. (Tr. 109). Instead, he would have immediately given her Heparin.
(Tr. 111). But he relied on the ultrasound report from Dr. Collier and discharged
Telina. (Tr. 111). Dr. Jackson did not know that the ultrasound was not done on
Telina’s calf. (Tr. 111). Had he known this, he would not have discharged her
because the ultrasound was inadequate to rule out DVT. (Tr. 111, 112, 140). Dr.
Jackson testified that 90 percent of DVTs originate in the calf. (Tr. 111).
{¶21} Tracy Melfi was the ultrasound technician who performed Telina’s
ultrasound. Melfi had no memory of Telina or of performing Telina’s ultrasound
-5-
examination. (Tr. 151). Melfi testified regarding the hospital’s four rules for
ultrasounds to rule out DVT. (Tr. 153). The first rule is to do a compression study of
the veins every centimeter along the vein. (Tr. 154). Melfi stated that she took all 19
pictures in color, as opposed to gray scale, because she was unable to see the vein
without the color. (Tr. 156). Melfi referred to the pictures she took of the four veins in
Telina’s leg. She stated that three veins appeared straight, but the popliteal vein
appeared “torturous.” (Tr. 160-61). However, she stated that this was not abnormal
and that there was no blood flow missing in the popliteal vein. (Tr. 161).
{¶22} Melfi stated that she did not examine Telina’s leg below the knee. (Tr.
162). She stated that the popliteal vein ends right behind the knee and her exam
ended with the end of the popliteal vein. (Tr. 162-63). She did not examine the veins
in Telina’s calf. (Tr. 168). Melfi acknowledged that hospital rule number four requires
that an ultrasound always be performed over the area of pain. (Tr. 169). However,
she stated that she was unaware of Telina’s calf pain. (Tr. 170). Melfi stated that the
requisition she received indicated “limb pain.” (Tr. 170). And while she
acknowledged that the calf is part of the limb, Melfi testified that she was taught to
stop the examination at the end of the popliteal vein when there is no complaint of
calf pain. (Tr. 170). Melfi stated that had Telina told her that she had calf pain, Melfi
would have scanned her calf too. (Tr. 171). But she admitted that she had no
recollection of what Telina may have told her or if she asked Telina if she had calf
pain. (Tr. 171-73).
{¶23} Melfi also acknowledged that she had access to a sheet from the triage
nurse indicating that Telina had pain in her calf muscle. (Tr. 174-75). In fact, Melfi
even wrote her own notes on the same sheet. (Tr. 176). However, Melfi stated that
she is not required to go through the medical history or the emergency room
documents. (Tr. 176). She said that the only thing she was required to do was to
check the order and indicate that the exam was done. (Tr. 176).
{¶24} Dr. Paul Collier (Dr. Paul) is a vascular surgeon and appellant’s expert
witness. Dr. Paul first read from the coroner’s findings. The coroner found Telina’s
-6-
cause of death was a pulmonary embolism. (Tr. 191). The source of the embolism
was a DVT in the left leg in the popliteal region. (Tr. 192). Dr. Paul stated that this
was near the knee. (Tr. 192). Dr. Paul opined that the clots that were found in
Telina’s leg during her autopsy were present when she was in the hospital on
November 13, 2007. (Tr. 192). He stated that the ultrasound did not go down far
enough. (Tr. 193). Dr. Paul further noted that in the emergency room, Telina
complained of pain and swelling in her calf. (Tr. 193-94). Furthermore, on the
ultrasound, Dr. Paul stated that there was a “marked irregularity” of the vein’s wall
making it appear more likely that there was a clot lining the wall. (Tr. 194). He
opined that the irregularity was likely the tip of the iceberg, or a partially occlusive clot
with more “downstream.” (Tr. 194). Dr. Paul also opined that the image of Telina’s
popliteal vein showed an irregularity where it appeared “squiggly and all ratty.” (Tr.
214). He stated that it should look the same as the other three veins. (Tr. 218).
{¶25} Dr. Paul further testified that, in his opinion, Dr. Collier breached the
standard of care required by a doctor who is reading and interpreting an ultrasound.
(Tr. 216-17). As a basis for his opinion, Dr. Paul stated that Dr. Collier accepted an
inadequate study and misinterpreted the study where there was an abnormality that
was not explained. (Tr. 217). He stated that the study was not complete because
Telina complained of calf pain and her calf was not scanned. (Tr. 216). He also
stated that the vein compression was not done properly because there appeared to
be a partially occluding clot in the popliteal vein. (Tr. 216, 219). In conclusion, he
opined that Dr. Collier’s failure to meet the standard of care was a proximate cause of
Telina’s pain and suffering and death. (Tr. 223). Dr. Paul testified that had the study
been performed properly and interpreted properly, the clot would have been
diagnosed in time to treat Telina and prevent her death. (Tr. 223).
{¶26} As to how the compression study was done incorrectly, Dr. Paul stated
that the compressions should have been done in black and white images so one
would be able to tell where the vein walls collapsed. (Tr. 241). He stated that with
the color images used, the color fills the walls of the vein and can almost bleed
-7-
through so that you do not get a clear picture of the wall. (Tr. 290). He further
opined that the area on the popliteal vein that looked like a “shark bite” was most
likely a clot and that the study should have been repeated to confirm this. (Tr. 247-
48).
{¶27} Dr. John Cronan is a diagnostic radiologist and appellees’ expert. Dr.
Cronan testified that one can view compressed veins in color or in black and white.
(Tr. 366). He stated that when using color, you simply look for the color to go away
when the vein is compressed. (Tr. 366, 369). Contrary to Dr. Paul’s opinion, Dr.
Cronan opined that the “puckering” in Telina’s popliteal vein was not a clot. (Tr. 375).
Dr. Paul also opined that Telina’s ultrasound study was a complete and normal exam.
(Tr. 379, 384-85). He saw no evidence of a clot. (Tr. 383).
{¶28} As to how Telina had a pulmonary embolism two days after her
“normal” ultrasound, Dr. Cronan did not have a definitive explanation. (Tr. 379). He
stated that this type of occurrence happens and that only about 30 to 40 percent of
people who have a clot in their lungs have clots in their legs too. (Tr. 380).
Additionally, Dr. Cronan stated that the ultrasound study is 95 percent accurate in
finding clots in the legs, meaning that five percent of clots go undetected by the
ultrasound. (Tr. 381).
{¶29} On cross examination, Dr. Cronan stated that if the patient has calf
pain, the calf should be evaluated. (Tr. 395). He stated that in cases where there is
no complaint of calf pain, a complete exam includes the popliteal vein down to the
point of bifurcation. (Tr. 397). But in cases where there is a complaint of calf pain, a
complete exam includes the popliteal vein plus two calf veins. (Tr. 397-98, 416). Dr.
Cronan agreed that without doing a complete scan, DVT cannot be ruled out. (Tr.
398).
{¶30} Dr. Cronan further testified that he assumed Dr. Collier knew the
hospital’s protocol. (Tr. 411). He stated that if Dr. Collier did not know the hospital’s
protocol for venous ultrasounds, this was below the standard of care. (Tr. 412).
-8-
However, he stated that because Dr. Collier’s requisition form stated “leg pain,” an
exam that stopped at the end of the popliteal vein was a complete exam. (Tr. 415).
{¶31} Finally, Dr. Collier testified in his defense as an expert witness. Dr.
Collier testified that at the time he reviewed Telina’s studies, he had no clinical history
that she had calf pain. (Tr. 427). He stated that if he had been told that Telina had
pain in her calf, he would have scanned her calf. (Tr. 428, 457). Dr. Collier further
testified that the scan of Telina’s popliteal vein was normal. (Tr. 435). Dr. Collier
stated that he saw no evidence of a clot and was unsure what Dr. Paul was
referencing when he testified that there was a “shark bite” indicative of a clot. (Tr.
436). Dr. Collier testified, based on his knowledge, education, training, and
experience, that Telina’s study did not show a clot. (Tr. 438).
{¶32} Dr. Collier further testified that at the time of Telina’s ultrasound, he was
not aware of the hospital protocol requiring him to scan the area of the pain. (Tr.
440). However, he followed hospital policy when he read Telina’s ultrasound. (Tr.
440). In other words, although he was not aware of the protocol, he followed it
without knowing that he was following it. (Tr. 440). And although Dr. Collier had no
memory of Telina or her ultrasound, he testified that he was not advised that she had
pain below her knee. (Tr. 441). He stated that he knew this because if he had been
advised that Telina had calf pain, he would have ordered Melfi to scan Telina’s calf.
(Tr. 441-42). However, he also acknowledged that he was aware that Telina had
“limb” pain and “leg” pain although he did not know where in her leg the pain was
located. (Tr. 458). Dr. Collier stated that when a patient has calf pain, the reports he
gets from the technician and the emergency room specifically state that the patient
has “calf” pain. (Tr. 464-65).
{¶33} The evidence presented makes this a very close case. There was
substantial, credible evidence weighing on both sides. On one hand, Dr. Paul’s
testimony was that Dr. Collier breached the standard of care in failing to do a
complete ultrasound that included Telina’s calf and in failing to identify an area on her
popliteal vein that he opined was likely a clot. On the other hand, Dr. Cronan’s and
-9-
Dr. Collier’s testimony was that Dr. Collier did not breach the standard of care
because he reviewed a complete ultrasound given that he was unaware of Telina’s
calf pain and that the area Dr. Paul opined was a possible clot was actually a normal
part of Telina’s popliteal vein.
{¶34} In this case, someone was clearly negligent. However, the jury could
have found that the hospital was the negligent party and not Dr. Collier. St. Elizabeth
was also a defendant in this case. During the trial, St. Elizabeth settled with
appellant. It is possible the jury concluded that the negligence here was that Dr.
Collier was never made aware of Telina’s complaint of calf pain. Telina told the
emergency room doctor, Dr. Jackson, that she had pain in her calf. However, it is
possible, based on Dr. Collier’s testimony, that he was never made aware of the calf
pain. Dr. Collier testified that if he had known that Telina had calf pain, he would
have instructed Melfi to scan Telina’s calf. And Melfi testified that if Telina had told
her she was experiencing calf pain, she would have scanned Telina’s calf.
Furthermore, based on Dr. Collier’s and Dr. Cronan’s testimony, if Dr. Collier was not
specifically made aware of calf pain, it was proper procedure to stop the scan of
Telina’s leg at the end of her popliteal vein, or right below her knee.
{¶35} Given that there is some competent, credible evidence in support of the
jury’s verdict, we cannot conclude that their verdict was against the manifest weight
of the evidence. Accordingly, appellant’s first assignment of error is without merit.
{¶36} Appellant’s second assignment of error states:
{¶37} “THE TRIAL COURT ERRED BY NOT ALLOWING PLAINTIFF-
APPELLANT TO IMPEACH THE CREDIBILITY OF THE ONLY EXPERT TO
CREATE A QUESTION OF FACT AS TO NEGLIGENCE WITH EVIDENCE
SHOWING SEVERAL STATES HAD REVOKED HIS MEDICAL LICENSE AND
WITH EVIDENCE SHOWING THE CIRCUMSTANCES SURROUNDING HIS
CRIMINAL CONVICTION FOR LYING ABOUT HIS MEDICAL PRACTICE.”
{¶38} Dr. Collier filed a motion in limine seeking to prevent appellant from
referring to (1) his prior felony conviction for making false statements and
- 10 -
representations to the United States Department of Health and Human Services and
(2) the suspension of his medical license by the California and Wisconsin medical
boards.
{¶39} The factual basis underlying these actions occurred while Dr. Collier
was employed at the Medical College of Wisconsin. The allegation was that Dr.
Collier falsely stated and represented to officials from the Department of Health and
Human Services that he had personally signed all medical reports bearing his name
that purported to reflect his view and interpretation of nuclear medicine scans when,
in fact, a visiting professor whose temporary medical license had expired had actually
performed a substantial portion of the reviews and interpretations at issue and had
signed the reports using Dr. Collier’s name. However, Dr. Collier asserted that he
reviewed and interpreted all nuclear medical studies signed by the other individual
using his name. Dr. Collier was convicted of misleading investigators about a
practice regarding the signing of the reports. He was not convicted of failing to
interpret his own studies.
{¶40} The trial court granted Dr. Collier’s motion in part. It ruled that appellant
could use Dr. Collier’s conviction only for the purpose of credibility and veracity. It
ruled that appellant could not use the alleged facts behind the conviction as an act
similar to the doctor’s actions in this case. It also ruled that appellant could not
introduce the suspensions of Dr. Collier’s medical license.
{¶41} The decision to admit or exclude evidence rests in the trial court's
sound discretion and we will not reverse its decision absent an abuse of that
discretion. Wightman v. Consolidated Rail Corp., 86 Ohio St.3d 431, 437, 715 N.E.2d
546 (1999). Abuse of discretion connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶42} Appellant first argues that the circumstances surrounding Dr. Collier’s
prior conviction and license revocation so closely track the situation in this case that
the jury could not have meaningfully judged Dr. Collier’s credibility without hearing
- 11 -
more about those circumstances. He contends that the simple statement that Dr.
Collier had a conviction for making false statements and representations to the U.S.
Department of Health and Human Services meant nothing to the jury and offered no
real insight into Dr. Collier’s credibility.
{¶43} Appellant further argues that the court should have allowed him to cross
examine Dr. Collier regarding the circumstances surrounding his criminal conviction.
He contends that Dr. Collier told lies directly related to his medical practice in a
misplaced effort to protect his license and career. In this case too, appellant asserts,
Dr. Collier’s professional conduct was once again at issue. Thus, he contends the
circumstances regarding Dr. Collier’s prior conviction went directly to Dr. Collier’s
credibility.
{¶44} In 1999, Dr. Collier pleaded guilty to and was convicted of “making false
statements and representations to the U.S. Department of Health and Human
Services.” (Motion in Limine, Ex. A). Appellant’s conviction was for falsely
representing to federal investigators that he personally signed all medical reports
bearing his name. (Motion in Limine, Ex. A). However, Dr. Collier steadfastly
maintained that he personally reviewed and interpreted all nuclear medicine studies
signed by the other individual using Dr. Collier’s name. (Motion in Limine, Ex. A).
{¶45} Pursuant to Evid.R. 609(A)(3): “evidence that any witness, including an
accused, has been convicted of a crime is admissible if the crime involved dishonesty
or false statement, regardless of the punishment and whether based upon state or
federal statute or local ordinance.” Thus, the evidence of Dr. Collier’s conviction was
clearly admissible. But the Rule does not provide for admitting the factual allegations
surrounding a conviction. Furthermore, the “facts” that appellant sought to introduce
were never substantiated but were only the allegations of the federal agents who
investigated Dr. Collier.
{¶46} Thus, the trial court did not abuse its discretion in disallowing cross
examination regarding the underlying facts of Dr. Collier’s criminal conviction.
- 12 -
{¶47} Second, appellant contends courts have repeatedly permitted cross
examination as to the revocation of a professional license. He asserts that when
evidence of a professional license has been introduced on direct examination,
evidence that the witness’s license has been revoked is relevant to the issue of
credibility. Appellant points out that Dr. Collier testified as an expert in his defense.
He argues that by doing so, Dr. Collier put his professional credentials at issue and
also made them a proper issue to rebut.
{¶48} Evid.R. 601(D) requires a person giving expert medical testimony in a
medical malpractice case to be licensed. Additionally, a witness may testify as an
expert if, in addition to other requirements, he “is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding the subject matter of
the testimony.” Evid.R. 702(B).
{¶49} In this case, Dr. Collier testified as an expert witness in his own
defense. Before getting into his testimony regarding Telina’s ultrasound, Dr. Collier
testified at length regarding his education, experience, and training in the medical
field. (Tr. 423-26). In other words, he spent some time building up his credentials in
front of the jury so that, presumably, they would give more weight to his medical
opinion regarding the ultrasound. Given that Dr. Collier put his professional
credentials at issue, the trial court should have allowed appellant to cross examine
him with the suspensions of his medical license in Wisconsin and California. Dr.
Collier opened the door by testifying to his medical credentials. By not allowing cross
examination with the suspensions, Dr. Collier was able to give the jury the impression
that his professional credentials were untarnished when this was not the case.
{¶50} Courts have found that a physician-witness’s licensure is a matter that
affects the weight to be given to their testimony. See Ray v. Ramada Inn N., 181
Ohio App.3d 350, 2009-Ohio-1278 (“If the fact that a testifying physician's medical
license is suspended at the time of his testimony at trial does not cast sufficient doubt
upon its reliability to preclude its admission in a criminal trial, we see no reason to
employ a higher sensitivity to a similar doubt concerning its reliability in a civil trial. As
- 13 -
counsel for both parties agreed in oral argument, the fact of Moore's suspended
license to practice medicine is a fact that could, and certainly would, be brought up in
his cross-examination at trial, should he be permitted to testify.”); State v. Snodgrass,
177 Ohio App.3d 556, 2008-Ohio-4019 (doctor whose license had been suspended
for six months could still testify as an expert but his license suspension was a matter
of the weight to be given to his testimony); In re Webb, 64 Ohio App.3d 28, 580
N.E.2d 506 (1989) (the fact the doctor was not licensed at the time he administered
the tests went to weight, not admissibility).
{¶51} Dr. Paul testified that Dr. Collier breached the standard of care by
failing to interpret a complete ultrasound and by failing to recognize that a certain
area of the popliteal vein appeared to show evidence of a clot. On the other hand,
Drs. Collier and Cronan testified that Dr. Collier did not breach the standard of care
because the ultrasound examination was complete and it did not show any signs of
clots. Thus, the jury was faced with determining which evidence was more credible.
In the eyes of the jury, none of the doctors had a tarnished record and all set forth
exemplary credentials. Had they known that Dr. Collier’s medical license had been
suspended in two states, they may have given his expert medical opinion less weight.
{¶52} Furthermore, Dr. Cronan testified that he assumed Dr. Collier knew the
hospital’s protocol, which was not the case, and that if Dr. Collier did not know the
hospital’s protocol for venous ultrasounds, this was below the standard of care. This
testimony coupled with testimony regarding Dr. Collier’s suspended licenses, may
have persuaded the jury to find Dr. Paul’s testimony to be more credible.
{¶53} Given how close the evidence in this case was, had the trial court
allowed appellant to use Dr. Collier’s suspensions on cross examination, this could
have affected the weight the jury gave to Dr. Collier’s testimony, and likewise, the
outcome of the case. As such, the trial court abused its discretion in disallowing the
cross examination.
{¶54} Accordingly, appellant’s second assignment of error has merit in part.
- 14 -
{¶55} For the reasons stated above, the judgment of the trial court is hereby
reversed and the matter is remanded for further proceedings pursuant to law and
consistent with this opinion.
Waite, P.J., concurs.
DeGenaro, J., concurs.
| {
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12 N.Y.2d 276 (1963)
William V. Bradley, as President of International Longshoremen's Association, et al., Appellants,
v.
Waterfront Commission of New York Harbor et al., Respondents.
Court of Appeals of the State of New York.
Argued January 22, 1963.
Decided February 28, 1963.
Osmond K. Fraenkel and Harold Krieger for appellants.
Irving Malchman and William P. Sirignano for respondents.
Chief Judge DESMOND and Judges DYE, BURKE, FOSTER and SCILEPPI concur with Judge FULD; Judge VAN VOORHIS dissents and votes to modify in an opinion.
*278FULD, J.
The Waterfront Commission Act became law in 1953. Its section 8 was thereafter challenged as invalid on grounds that the subject matter had been pre-empted by Federal legislation and that it violated the due process clause of the Fourteenth Amendment. Both this court and the United States Supreme Court, rejecting those arguments, upheld the section as constitutional. (De Veau v. Braisted, 363 U. S. 144, affg. 5 N Y 2d 236.) Some short time later, the Waterfront Commission concluded, on the basis of facts adduced at hearings which it conducted, that the provisions of the statute designed to eliminate the evils infesting the waterfront were being circumvented. It recommended corrective legislation and in 1961 the Legislature amended section 8 in order to remedy the situation (Waterfront Commission Act, §§ 8, 8-a, as amd. by L. 1961, ch. 211).
The present action was brought by the International Longshoremen's Association (I. L. A.) and four individuals, suing on behalf of themselves and others similarly situated, for a declaratory judgment that several of the amendments are unconstitutional. The courts below held them valid and we agree with that determination; indeed, we consider such a result virtually dictated by the decision in the De Veau case.
As originally enacted in 1953, section 8 prohibited the collection of any dues for or on behalf of any labor organization representing waterfront workers registered or licensed by the commission if any of its officers or agents had been convicted of a felony. The amendments enacted in 1961 extended the prohibition to any labor organization "which derives its charter from a labor organization" representing 100 or more employees registered or licensed by the Waterfront Commission "if any officer, agent or employee of such labor organization, or of a welfare fund or trust administered * * * by such labor organization * * *, has been convicted * * * of a felony, any misdemeanor involving moral turpitude", or of any of a *279 number of specifically enumerated crimes. (Italics represent new matter.)[1]
The claim of pre-emption based on sections 1 and 7 of the National Labor Relations Act (guaranteeing the right of employees "to bargain collectively through representatives of their own choosing") and section 504, subdivision (a), of the Labor-Management Reporting and Disclosure Act of 1959 (disabling persons convicted of certain felonies from serving in positions of influence in labor unions) is the same as that advanced when the statute in its original form was before the courts and what was then said in disposing of the contention is equally pertinent and decisive here.
We take up first the claim that the provision of the National Labor Relations Act pre-empts the 1961 amendments. Two of them were enacted to plug loopholes found to exist in the 1953 legislation. It appeared that the provision aimed at prohibiting convicted felons from holding influential positions in waterfront unions was being circumvented either by giving them jobs as "employees", instead of continuing them as "officers" and "agents", or by shifting them to non-waterfront locals chartered by the I. L. A. Quite obviously, if the statute as it originally stood was not pre-empted, these provisions designed to prevent an evasion of them were not. The third amendment simply expanded section 8 so as to render it applicable to persons convicted of "moral turpitude" misdemeanors in addition to "felonies". Section 8 of the New Jersey Waterfront Commission Act contained this precise provision and Congress was not only aware of this when it gave its consent to the bi-State compact but it knew that its "approval of the compact * * * would carry with it sanction of § 8" as passed by the New Jersey Legislature. (De Veau v. Braisted, 363 U. S. 144, 151, supra.) From all this, it seems clear that this claim of pre-emption is without basis. The course taken by Congress reflects no purpose *280 to pre-empt the State regulation contained in section 8 either in its original or amended form.
With respect to the claim of pre-emption based on enactment of the Labor-Management Reporting and Disclosure Act of 1959, we need but refer to the Supreme Court's rejection of that argument in De Veau: "When Congress meant pre-emption to flow from the 1959 Act it expressly so provided. * * * No such pre-emption provision was provided in connection with § 504(a). That alone is sufficient reason for not deciding that § 504(a) pre-empts § 8 of the Waterfront Commission Act. * * * And to make the matter conclusive, § 603(a) is an express disclaimer of pre-emption of state laws regulating the responsibilities of union officials" (363 U. S., at pp. 156-157).
Nor is there merit to the objections urged by the plaintiffs on due process grounds. Barring convicted "felons" from serving as officers or agents of waterfront unions was recognized in the De Veau case as "a reasonable means for achieving a legitimate state aim, namely, eliminating corruption on the waterfront" (363 U. S., at p. 157). Since the amendatory legislation here challenged including that which extended the section's application to any person (whether union officer, agent or employee) convicted of a "misdemeanor involving moral turpitude"[2] did no more than effect such changes as were deemed necessary to achieve the original objectives of the statute, there is no warrant for the charge that the statute in its modified form offends against due process.
The judgment appealed from should be affirmed, with costs.
VAN VOORHIS, J. (dissenting).
My view of this appeal is that which is taken by counsel to the Waterfront Commission of New York Harbor, viz., that with the exception of the extension of the Waterfront Commission Act to cover employees who have been convicted of felonies, the constitutional objections to section 8 as amended by chapter 211 of the Laws of 1961 are entirely *281 hypothetical. In this respect the Waterfront Commission's brief states as follows:
"Section 8, as amended, is a statute with numerous aspects affecting persons in many different situations. Some persons will be affected by the 1961 amendments because they are employees; some because they have been convicted of misdemeanors involving moral turpitude; and some because they are connected with so-called uncovered locals. What plaintiffs herein seek to do is to present almost every constitutional question that may possibly arise under Section 8, as amended, whether or not involving persons actually before the Court and indeed whether or not involving persons who actually exist.
"This blunderbuss attack upon Section 8, as amended, is contrary to every tenet of constitutional adjudication. For the courts will not decide constitutional questions in advance of the strictest necessity. Peters v. New York City Housing Authority, 307 N.Y. 519. It follows as a corollary that `constitutional questions are not to be decided hypothetically' and that this Court is `called upon to decide only the constitutional impact upon the statute as applied to the facts of this case.' People v. Merolla, 9 N.Y.2d 62, 68-69. In addition to these settled principles, there are two separability clauses that are applicable here (supra, pp. 6-7) and these require in effect that the constitutionality of Section 8, as amended, be adjudged only with respect to the facts actually put into issue herein by real persons properly before the Court."
The absence of controversy shown by facts in the record before the court seems to me to offend against the principle also that jurisdiction is not entertained to render declaratory judgments in the absence of specific controversy that has actually arisen (Civ. Prac. Act, § 473; Rules Civ. Prac., rule 212; Red Robin Stores v. Rose, 274 App. Div. 462, 466-469; Reed v. Littleton, 249 App. Div. 310, 312; Leonard v. John Hancock Mut. Life Ins. Co., 281 App. Div. 859; Standardbred Owners Assn. v. Yonkers Raceway, 1 A D 2d 882). Courts do not give advisory opinions unless a justiciable issue has been presented (Matter of State Ind. Comm., 224 N.Y. 13, 16; New Jersey v. Sargent, 269 U. S. 328).
With the exception of the extension to employees of the disabilities imposed by the Waterfront Commission Act, where an *282 actual controversy is presented due to the prior felony convictions of plaintiffs, Condon, De Veau and Hennessey, the complaint in this action calls for the rendition of a merely advisory opinion by the courts. The circumstance that this is a controversial statute does not mean that an actual controversy is presented in court for adjudication. An important reason on account of which advisory opinions are not rendered is that it is impossible to know in advance the shape which controversies will take that will arise out of this statute, which contemplates a wide variety of possible situations the length and breadth of which it is only possible now to guess. Plaintiffs are doing small service to themselves and to those whom they represent, it appears to me, by asking for such a broad and sweeping determination in advance of the real contests, the exact facts and nature of which are now but dimly foreshadowed, and which in certain instances might be resolved in their favor if they had not obtained what amounts at the threshold to a blanket approval of anything that may be done under the terms of the act.
For example, it is being decided by the majority that collection of funds is validly forbidden by the amended statute for unions having officers, agents or employees who have been convicted of "any misdemeanor involving moral turpitude". The only person mentioned who could possibly be bracketed under this description is plaintiff Di Brizzi, who, it is alleged, was once convicted of a misdemeanor "which, on information and belief, comes within the categories described in the 1961 amendment to Section 8." This allegation is denied in the answer for lack of knowledge or information sufficient to form a belief, nor has this allegation been supported by any affidavit on this motion for summary judgment stating what kind of a misdemeanor it was of which he was convicted. There is a triable issue concerning whether Di Brizzi was convicted of anything or, if so, of what. Nobody knows with certainty what misdemeanors do involve moral turpitude, which depends considerably upon the fluctuations and geography of public opinion or the personal attitude of the Judge. It is difficult to understand how some misdemeanors of that description could affect the qualification of a man to be an officer, agent or employee of a waterfront union. The quantity and variety of misdemeanors has multiplied so rapidly, and covers so large an area of human activity *283 in so many contexts of opinion, as to render almost anyone potentially subject to disqualification on that ground. For example, section 1142 of the Penal Law makes it a misdemeanor to sell or give away contraceptives or to give information as to how or where they may be obtained. A violation of this section of the Penal Law has been held to involve moral turpitude (Baretta v. Baretta, 182 Misc. 852; Halstead v. Nelson, 36 Hun 149). Would a conviction on that have any tendency to disqualify a man from working for a longshoreman's union at the harbor of New York? Is it the meaning of the pronouncement to be declared by the judgment in this case that no union could collect its dues if such a one were to be found upon its payroll? For anything that appears to the contrary, the single employee charged in the papers in the action with having been convicted of some misdemeanor involving moral turpitude may come within this or any of the categories of misdemeanors, except such as could be characterized beyond cavil as mala prohibita.
The affidavit of the president of the International Longshoremen's Association (I. L. A.) questions the "disqualification * * * for a large variety of non-felony offenses, with great doubt about the applicability of many misdemeanors because of the use of the vague term `moral turpitude.'" This doubt is very real and enters the picture not only on account of the uncertainty in labeling what misdemeanors do involve moral turpitude prior to a decision by the court of last resort, but also through the constitutional objection that in many instances it would impose restrictions upon a man's livelihood which are unrelated to his fitness to pursue his calling (Five Boro Elec. Contrs. Assn. v. City of New York, 12 N Y 2d 146). Serious difficulties would arise, for example, in determining what misdemeanors of the following kinds involve moral turpitude, and, if so, whether they could be found by the Legislature to have a bearing upon the performance of the occupation of officer, agent or employee of a longshoreman's union: tax convictions (i.e., income tax evasions contrasted with smuggling), housing violations, anti-discrimination offenses, sexual misdemeanors, communist activities, public intoxication once or repeatedly, driving while intoxicated with or without serious accidents, commercial offenses, criminal libel, criminal contempts of court or legislative committees, obscenity, offenses by public officials such as *284 retaining extra compensation or rewards, disturbing the peace, violation of the liquor laws as by sales to minors, or refusal to serve in the armed forces in time of war as conscientious objectors. These are only a few of the numberless situations which can arise concerning whether a particular misdemeanor involves moral turpitude or could be found to have a tendency to restrict within constitutional limits the pursuit of one's occupation or the earning of his livelihood.
The 1961 amendment to section 8, in referring to misdemeanors involving moral turpitude, follows these words with "or any crime or offense enumerated in subdivision three (b) of section five-n". That section refers among others to those convicted of "petit larceny, where the evidence shows the property was stolen from a vessel, pier or other waterfront terminal". The thought in these words is to limit disqualifying convictions to such as would have a tendency to render the officer, agent or employee undesirable on the waterfront. Yet if, in the same breath, the statute disqualifies all persons who shall have been convicted of misdemeanors involving moral turpitude, as the majority opinion appears to say, it would refer to all cases of petit larceny and not be limited to such as relate to waterfront operations. If that had been the intention of the Legislature, why were so many words employed to limit the application of the term to waterfront operations when at the same time, as the decision now being made appears to hold, all kinds of petit larceny convictions were to stand in the way of these activities? And if the Legislature meant to confine such crimes to such as would naturally tend to disqualify a man from serving in these capacities on the waterfront, then we should not pass upon what would have been the constitutionality of the 1961 amendment as if it had been designed to cover all misdemeanors involving moral turpitude whatever that may mean.
Before ruling on constitutionality, it is usual to construe a statute in order to ascertain what it provides before deciding whether what it provides transcends constitutional limitations. That is not possible in the present case since there is not opportunity to construe this statute in most of its ramifications in the absence of factual controversy. It is inappropriate, in my view, to ascribe to it over-all constitutional validity regardless *285 of how it may be construed in controversies hereafter to arise but which are not yet envisaged.
As is likewise stated in the brief for the Waterfront Commission, the provision prohibiting the collection of dues by I. L. A. locals which function outside of the State of New York, such as the I. L. A. local in Puerto Rico or Bermuda, is not presented by any controversy before the court. If there are out-of-State locals which have criminals as officers, agents or employees, they are not before the court, nor is it perceived how their interest would be affected or the particular bearing which it would have on I. L. A. whose dues are not collected by its locals but directly by the employers under a check-off system.
"Thus," continues the brief for the Waterfront Commission, "the only cases herein which are not hypothetical are those presented by plaintiffs, Condon, Hennessey and De Veau, all of whom have felony convictions and all of whom are union employees". In my view the judgment appealed from should be modified accordingly, and the court should decline to entertain jurisdiction respecting controversies under this severe and complicated statute which it is anticipated will arise but which have not yet been presented in court and the factual nature of which has not been disclosed.
Judgment affirmed.
NOTES
[1] The plaintiffs challenge all of the 1961 amendments except that which makes the statute applicable to union welfare funds and trusts. Although the defendants have questioned the plaintiffs' standing, we are satisfied that the I. L. A., at least, has a sufficient interest to prosecute the action. Two of the amendments under attack limit, in effect, those whom that organization may properly hire, while the third makes it more difficult for the I. L. A. to retain its association with its non-waterfront locals and tends to inhibit or discourage other non-waterfront locals from affiliating with it.
[2] It should be noted that the plaintiffs have not in this court argued that the quoted phrase is void for vagueness or lacks sufficiently definite standards. (Cf. Jordan v. De George, 341 U. S. 223, 229-230, where the Supreme Court observed that, although a similar phrase had been in the immigration laws for upwards of a half century and had also been used for many years "as a criterion" in other statutes, "No case has been decided holding that the phrase is vague, nor are we able to find any trace of judicial expression which hints that the phrase is so meaningless as to be a deprivation of due process.")
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507 So.2d 408 (1986)
Johnny CORRETTI
v.
PETE WILSON ROOFING COMPANY, et al.
85-597.
Supreme Court of Alabama.
November 26, 1986.
As Corrected on Denial of Rehearing May 8, 1987.
Jesse P. Evans III and Donald H. Brockway of Corretti & Newsom, Birmingham, for appellant.
John R. Chiles of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee Pete Wilson Roofing Co.
William Anthony Davis III and J. Bentley Owens III of Starnes & Atchison, Birmingham, for appellees R.B. Ethridge & Associates and U.S. Fidelity & Guar. Co.
*409 HOUSTON, Justice.
The appeal is dismissed ex mero motu.
On March 7, 1984, the trial court granted a summary judgment in favor of each of the defendants. Though it was not necessary, since all claims as to all served defendants were adjudicated, so that the judgment was "final" anyway, the trial court used the following language: "and further, the Court expressly directs that said judgments be entered and made final in accordance with the provisions of Rule 54(b) of the Alabama Rules of Civil Procedure."
On November 14, 1985, over 20 months after final judgment, appellant Johnny Corretti filed a Rule 60(b)(6) motion for relief from the summary judgments, alleging a lack of notice.
On January 29, 1986, the trial court entered the following order:
"Plaintiff's Motion for Relief from Judgment Order of March 7, 1984, is granted and the summary judgments entered that date are hereby set aside and held for naught due to the court's concern that notice of this ruling was not communicated to counsel for the plaintiff, Johnny Corretti. Upon consideration of the previously filed Motions for Summary Judgment, it is the judgment of the court that the Motions for Summary Judgment [here all of the defendants are named], are due to be and hereby are granted. The court expressly determines that there is no just reason for delay in the entry of said summary judgments in behalf of these defendants and further, expressly directs that said judgments be entered and made final in accordance with provisions of Rule 54(b) of the Alabama Rules of Civil Procedure."
Rule 77(d), Ala.R.Civ.P., provides in pertinent part:
"Lack of notice of the entry [of an order or judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time now provided for appeals in civil actions."
Rule 60(b), Ala.R.Civ.P., cannot be substituted for the exclusive remedy provided by Rule 77(d) and thereby used as a method to extend the time within which to appeal. Cockrell v. World's Finest Chocolate Co., 349 So.2d 1117, 1119 (Ala.1977); see Hayden v. Harris, 437 So.2d 1283, 1287 (Ala.1983).
Rule 77(d), Ala.R.Civ.P., controls this case and prevents the lack of notice of the entry of an appealable order or judgment from being a ground for a Rule 60(b) motion. To the extent that Snowden v. United Steelworkers of America, 435 So.2d 62 (Ala.1983), is contrary to our holding in this case, it is expressly overruled. This Court looks to substance and not form in determining the nature of a motion, see Ex parte Lang, 500 So.2d 3 (Ala.1986); even so, treating his Rule 60(b) motion as a motion for relief under Rule 77(d) would not help Corretti, because the trial court has no jurisdiction of a Rule 77(d) motion filed more than 72 days (i.e., 42 days for appeal, Rule 4, Ala.R.App.P., plus 30 days under Rule 77(d), as extended by Rule 6(a), Ala.R. Civ.P., when the final day is a Saturday, Sunday, or "legal holiday") after the entry of an appealable order or judgment. Certainly, it has no jurisdiction of the motion in this case, which was filed 617 days after such a judgment.
The January 29, 1986, order is void. Because the notice of appeal was not timely filed, the appeal is dismissed.
APPEAL DISMISSED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur.
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234 F.2d 429
Pearl THOMAS, Administratrix of the Estate of Lewis Samuel Thomas, Deceased,v.CONEMAUGH & BLACK LICK RAILROAD COMPANY, Appellant.
No. 11740.
United States Court of Appeals Third Circuit.
Argued February 9, 1956.
Decided June 11, 1956.
Thomas W. Pomeroy, Jr., Pittsburgh, Pa., John K. Tabor, Kirkpatrick, Pomeroy, Lockhart & Johnson, Pittsburgh, Pa., for appellant.
Louis C. Glasso, Pittsburgh, Pa., for appellee.
Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
KALODNER, Circuit Judge.
1
The defendant railroad having suffered judgment against it below on a jury's verdict, and its motions for judgment or a new trial having been denied, has brought this appeal, raising mainly the issue as to whether there was any evidence in the record upon which the jury could have found negligence on its part which contributed to the death of its employee.
2
Lewis Samuel Thomas, an employee of the Conemaugh & Black Lick Railroad Company, was killed on July 9, 1954. His widow, as administratrix, sued the railroad company under the Federal Employers' Liability Act1 for the damages resulting from his death.
3
At the time of his death decedent was 47 years old. In addition to his widow he was survived by seven children ranging in age from two to sixteen years. The jury, after finding the decedent was guilty of contributory negligence rendered a verdict for $80,000 against the defendant railroad.2
4
The facts are set forth in detail in the District Court's opinion, D.C.W.D.Pa. 1955, 133 F.Supp. 633. They may be summarized as follows:
5
The decedent was employed as a skip hoist operator or "tipple man". On July 9, 1954, about two hours after he reported for duty, the decedent was found dead at the bottom of a pit, which was part of the hoisting equipment and structure, under a steel bucket weighing 1950 pounds. He had a deep laceration of the forehead which exposed the skull bone; severe abrasions of the upper chest; his hair was matted with blood and his shirt was open and rolled up his chest. When found the decedent was lying partly in water which had accumulated in the pit; a shovel was also found in the pit at the same time. Decedent's duties required him, from time to time, to descend into the pit to remove debris and lubricate a sliding door mechanism in the pit. Iron guard rails surround the opening of the pit. To get into the pit, steel rungs are provided and they are embedded in concrete. There are six on the vertical wall spaced twelve inches apart and ten on the slopping wall spaced eighteen inches apart. The fourth, ninth, and tenth rungs on the sloping wall were completely missing (rusted off) and the fifth was broken and bent flat against the concrete. A rope was attached to a rung at the bottom of the vertical wall for use to descend into the pit. There was no permanent electric light in the pit; there was no electric switch in the pit by which to control the hoist; there was no space or recess in the pit sufficient for a man to stand if the bucket were also in the pit at the end of its travel.
6
The decedent's primary duty as a tipple man was to unload sand from railroad hopper cars to a storage bin by operating a skip hoist, also known as a "tipple conveyor", by means of its electric control switches. The essential element in the skip hoist operation is a bucket which runs on vertical tracks or guide rails from a pit beneath the hopper car where it is filled with sand to the top of the adjacent storage building where it empties itself. It is suspended by a cable which is controlled and powered electrically. The electric motor and related equipment, including the cable drum and control switches, are located in the ground level of the storage building beside the pit, in a room known as the "hoist house".
7
The bucket can be operated automatically by pushing the "on" button and the "hoist" or "lower" button located inside the hoist house. When these buttons are depressed the bucket will operate cycle after cycle (from pit to top and back) continuously until stopped by pushing another button called the "safe" button. When depressed the "safe" button stops the bucket wherever it may be. Inside the hoist house there is a cable control switch called a slack switch which shuts off the motor if for any reason the bucket hits an obstruction.
8
There is also an auxiliary push button switch on the outside wall of the hoist house near the pit opening which is spring operated. If the controls inside the hoist house are "on" and the outside push button is in the "out" position, the bucket will make cycle after cycle from the pit to the top of the storage building and back again. When the auxiliary push button is pushed in and held in a depressed position the bucket will continue in its cycle until it reaches the bottom of the pit where it will stop and remain until the button is released. The outside push button can be held in the depressed position by turning it clockwise.
9
At the trial the plaintiff advanced three separate contentions:
10
(1) The outside auxiliary push button was defective and vibrations from surrounding blast furnaces and movements of railroad engines caused it to pop out from its depressed position thereby putting the bucket in operation and caused it to come down upon the decedent; (2) the failure of the defendant to provide and maintain a reasonably safe place for decedent to work in that there was no light in the pit; some of the rungs were missing and another was defective; there was no control switch in the pit by which a workman could control the movement of the bucket in the event it was started by some intervening agency; there was no clearance for the protection of the workmen in the pit; (3) someone had started the bucket in motion by operating the controls inside the hoist house while decedent was cleaning the pit.
11
Expert testimony was adduced by the plaintiff to the effect that the outside auxiliary push button was "unsafe"; that it lacked a device necessary to hold it in the depressed position; that the plate which housed the button was not properly aligned and the thread of the button hole was stripped. Plaintiff's witnesses further testified that "heavy vibration" prevailed in the vicinity of the hoist house by reason of the operation of blast furnaces and movements of railroad engines and cars. There was also ample testimony, undisputed by the defendant, as to conditions prevailing in the pit itself.
12
The sum of the defendant's position at the trial was that incontrovertible physical facts negatived the contentions advanced by the plaintiff; that plaintiff had failed to adduce sufficient evidence to sustain any of its contentions; that if there was any negligence on defendant's part with respect to conditions in the pit, it was not the proximate cause of decedent's death.
13
On this appeal the defendant urges that the weight of credible evidence was so overwhelmingly in its favor that the trial court erred in failing to hold that the jury verdict was arbitrary and capricious.
14
We do not subscribe to the defendant's view.
15
As to proof of negligence, there was, in our opinion, sufficient to present a jury question. There was testimony which would warrant a jury finding that the outside auxiliary push button was defective, and that it had popped out as a result of heavy vibrations in the vicinity of the hoist house. There was also sufficient testimony to warrant a finding that the pit was not a reasonably safe place for decedent to work and that the conditions there prevailing were a proximate cause of decedent's death.
16
As was said in Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520:
17
"It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. [Citing cases.] That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable."
18
With respect to the defendant's contention that "all the theories advanced by plaintiff * * * required speculation by the jury" it need only be stated that existence of such "speculation" does not invalidate the jury's verdict where "there is an evidentiary basis" for the verdict.
19
In Lavender v. Kurn, 1946, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 it was held that:
20
"It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable." (Emphasis supplied.)
21
In Eckenrode v. Pennsylvania R. Co., 1948, 335 U.S. 329, 330, 69 S.Ct. 91, 92, 93 L.Ed. 41, the scope of appellate review in cases similar to that here involved was succinctly spelled out as follows:
22
"There is a single question presented to us: Was there any evidence in the record upon which the jury could have found negligence on the part of the respondent which contributed, in whole or in part, to Eckenrode's death?"
23
Under the holding in that case if upon consideration of the record there is "evidence" or any "inference which may reasonably be drawn from the evidence", which "when viewed in a light most favorable to the petitioner (plaintiff)" can sustain a recovery, the jury's verdict cannot be disturbed.
24
In the instant case, as already indicated, there was in the record, "evidence" or "inferences" reasonably drawn from the evidence, from which the jury could have found negligence on the defendant's part which contributed to the decedent's death.
25
An illuminating guide is afforded us in the latest expression of the Supreme Court on the subject of the jury function in Employers' Liability Act cases, Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 525, 526, 76 S.Ct. 608, 610. It was there said:
26
"In considering the scope of the issues entrusted to juries in cases like this, it must be borne in mind that negligence cannot be established by direct, precise evidence such as can be used to show that a piece of ground is or is not an acre. Surveyors can measure an acre. But measuring negligence is different. * * * Issues of negligence, therefore, call for the exercise of common sense and sound judgment under the circumstances of particular cases. * * * Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn."
27
There remains for disposition severa other points raised by the defendant of this appeal.
28
It assigns as error the admission into evidence of a Coroner's death certificate and return of view as proof of the cause of death. The certificate of the Coroner is required under Pennsylvania law3 and under Federal law is admissible into evidence.4 A long line of cases support the view that the documents kept in the ordinary course of business are admissible to show the truth of the facts included therein. Norwood v. Great American Indemnity Co., 3 Cir., 1944, 146 F.2d 797; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1950, 183 F.2d 467; Meth v. United Benefit Life Ins. Co., 3 Cir., 1952, 198 F.2d 446. The District Court properly instructed the jury that the death certificate was admissible; was open to contradiction and was not binding upon the jury.
29
As a further assignment of error, defendant points to certain hypothetical questions which the Court permitted the plaintiff to ask two expert witnesses. The record indicates that the Court properly exercised its discretion in allowing this line of questioning. Defense counsel was given ample opportunity to review the wording of the questions, and the scope of the questions was restricted to evidence which had already been admitted. The questions related to technical problems which were particularly within the experience of the expert witnesses and beyond the knowledge of the average juror. See Sanders v. Glenshaw Glass Co., 3 Cir., 1953, 204 F.2d 436, certiorari denied, 1953, 346 U.S. 916, 74 S.Ct. 278, 98 L. Ed. 411. We find that their submission was not prejudicial error.
30
We find without basis defendant's contention that the District Court committed prejudicial error in its charge to the jury.
31
We see no merit in the defendant's contention that the verdict was excessive. The verdict was certainly not so large "as to shock the judicial conscience." See McKee v. Jamestown Baking Co., 3 Cir., 1952, 198 F.2d 551, 556; Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825, 830.
32
For the reasons stated the judgment of the District Court will be affirmed.
Notes:
1
45 U.S.C.A. § 51 et seq
2
In answer to interrogatories the jury found the total amount of damages to be $100,000, but attributed 20 percent of the negligence to the decedent, reducing the verdict to $80,000
3
Act of June 7, 1915, P.L. 900, § 8, 35 P.S.Pa. § 458
4
Uniform Business Records Act, 28 U.S.C. § 1732
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202 F.2d 555
PRUDENCE-BONDS CORP. et al.v.STATE STREET TRUST CO. et al.
No. 77.
Docket 22138.
United States Court of Appeals Second Circuit.
Argued November 9, 1951.
Decided December 5, 1951.
Reargued April 15, 1952.
Decided March 3, 1953.
Charles M. McCarty, New York City, George C. Wildermuth, Samuel Silbiger, Brooklyn, N. Y., and Nemerov & Shapiro, New York City, (Aaron Schwartz, New York City, of counsel), for appellants.
Peabody, Arnold, Batchelder & Luther, Boston, Mass., Milbank, Tweed, Hope & Hadley, New York City (Willard B. Luther, Boston, Mass., A. Donald MacKinnon, New York City, John S. Whipple, Boston, Mass., and William E. Jackson, New York City, of counsel), for appellees.
Before SWAN, Chief Judge, FRANK, Circuit Judge, and COXE, District Judge.
FRANK, Circuit Judge.
1
1. We assume, arguendo (1) that, to give the bankruptcy court jurisdiction, it was not necessary that the guaranty (or the proceeds of its enforcement) be part of the debtor's assets,1 and (2) that, in fact, the guaranty constituted part of the mortgaged property.2 Even so, we think the court, as a bankruptcy court, lacked jurisdiction on the facts here because (a) that jurisdiction could exist only if the suit were a representative action3 for restoration of the trust fund, and (b) under pertinent New York decisions, such a representative action cannot rest upon the indenture trustee's breach where that breach consists merely of inaction — here the failure to enforce the guaranty. Those New York decisions control us, although, as we once pointed out, they may lead to most undesirable results.4 Our discussions in earlier cases5 render it unnecessary here to canvass in detail Smith v. Continental Bank, 292 N.Y. 275, 54 N.E. 2d 823, and related decisions. Suffice it to say that, if the inaction of the trustee in the Smith case could give rise to personal suits only, i. e., not a representative suit for restoration of the fund, then surely the same must be true of the trustee's inaction here. Appellant urges that the Smith case dealt solely with an individual bondholder's suit at law for his personal loss, and that, for the trustee's misconduct alleged in that suit, a representative action for restoration of the fund could also have been maintained against the trustee. We do not agree. The New York courts, as we understand them, hold (a) that such inaction does not amount to a "release or surrender" of any mortgaged property, and that, without a "release or surrender," personal, individual suits only — not a representative suit for "restoration of the fund" — may be maintained; and also (b) that any such individual suits must be brought by those who held bonds at the time of the trustee's breach, not by subsequent transferees of the bonds (absent express assignments to them of the individual claims against the trustees). We think that (b) results from (a), not vice versa. Accordingly, nothing in the recent New York statute, Personal Property Law, McK.Consol.Laws, c. 41, § 41 (1950), wiping out (b) as to transfers made after September 1, 1950, would affect our decision, even if that statute were retroactive.6
2
2. We agree with the master and the district judge that there is no merit in appellant's objection to the trustee's surrender of $10,000 in cash for cancelled bonds. The trust agreement did not require, as a condition of such a surrender, compliance with conditions contained in the agreement but applicable to other types of releases.7
3
Affirmed.
Notes:
1
Cf. Brooklyn Trust Co. v. Kelby, 2 Cir., 134 F.2d 105, 110-112
2
Appellant argues thus: (1) Once the bank, as trustee, obtained the guaranty, that guaranty became part of the mortgaged or trust assets, regardless of niceties of phrasing in the trust agreement. (2) This case is unlike President and Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465, 478, where the trustee neglected to enforce a covenant to deposit a guaranty
3
Brooklyn Trust Co. v. Kelby, 2 Cir., 134 F.2d 105, 110-112; Manufacturers Trust Company v. Kelby, 2 Cir., 125 F.2d 650
4
Phelan v. Middle States Oil Corp., 2 Cir., 154 F.2d 978, 999-1001. There we referred particularly to the aspect of the New York rule concerning transfers. We said: "According to those decisions, where a trustee * * * has violated his duties but in such a way as not to involve a release or surrender of any trust assets, the right of action * * * belongs to the persons who owned the bonds at the time of the commission of the wrong; and such a right, without an express assignment thereof, does not pass to the purchaser of any of the bonds, although the seller had no knowledge whatever of the trustee's dereliction. * * * We have found no other jurisdiction in which that doctrine prevails, especially where a sale of negotiable instruments is involved. * * * [T]he New York doctrine has this undesirable practical result: The seller of such bonds — ex hypothesi unaware, at the time of the sale, of the wrong done by the trustee — in actual fact can have no notion of retaining any cause of action against the trustee; and the seller of a bearer bond is exceedingly hard to trace. The practical consequence of the New York rule therefore is that most of the claims against a trustee for wrong done, especially to holders of bearer bonds, will never be prosecuted unless the trustee has surrendered trust assets. That rule thus often serves, pragmatically, as a convenient means of trustee exculpation."
5
See, e. g., President and Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465, 474-475, 478; York v. Guaranty Trust Co., 2 Cir., 143 F.2d 503, 521; Elias v. Clarke, 2 Cir., 143 F.2d 640, 644; Phelan v. Middle States Oil Corp., 154 F.2d 978, 999-1001; Manufacturers Trust Co. v. Kelby, 2 Cir., 125 F.2d 650, 652-654
6
Appellant argues that the history of that statute includes our criticism, in the Phelan case, 2 Cir., 154 F.2d 978, 1001, of the New York rule as to the non-passing of individual claims where the trustee has not "surrendered assets." We based that criticism on the fact that this rule, in practice, meant exculpation of trustee in many cases of gross negligence. True, such exculpation may well still ensue unless the legislation also wiped out the New York decisional rule that a representative suit for restoration of the fund may not be maintained unless the trustee has "surrendered assets," for few individual suits are ordinarily brought. But in Phelan v. Middle States Oil Corp., supra., we happened not to be concerned with and did not mention that aspect of the New York rule. We think the legislature did not change it. See 1950 Leg.Doc. 65 (D.)
7
The pertinent provisions read as follows:
"Substitution and Withdrawal of Securities, Etc.
"The Corporation at any time and from time to time may withdraw any bond, mortgage or other securities or certificates of deposit or cash from the trust fund, as follows: (1) By substituting for the item or items withdrawn, any other security or other item enumerated in Section 1 of this Article, equal in amount or value, to the unpaid principal of the bonds, mortgages or other securities or cash withdrawn. (2) By written application of the Corporation to the Trustee, for such withdrawal, at any time when the principal amount of the trust funds may exceed the par value of the Prudence Bonds then issued and outstanding hereunder.
"In either such case, the Trustee shall deliver to the Corporation the bonds, mortgages or other securities or cash, so to be withdrawn, with any necessary assignments thereof, provided there shall remain in the trust fund after any such withdrawal bonds, mortgages or other securities or cash equalling in amount or value not less than the principal amount of Prudence Bonds then issued and outstanding hereunder, and provided, further, that if and so long as any securities deposited in the trust fund enumerated in paragraphs (a), (b), or (c) of Section 1 of this Article, shall be in default in the payment of principal, the Corporation shall be permitted to withdraw only such securities deposited under said paragraphs (a), (b), or (c) as shall be in default, except that the Corporation may withdraw any of the items enumerated under paragraphs (a), (b) or (c) in connection with the redemption or final payment at maturity, of any such items. The Trustee may accept as conclusive the written statement of any officer of the Corporation as to whether or not any securities deposited in the Trust Fund are in default in the payment of principal.
"Upon the delivery to the Trustee for cancellation of any or all of the Prudence Bonds secured hereunder, with all unmatured coupons attached thereto, or cash equal to such coupons as are not delivered, or in lieu of such bonds and coupons or cash, a certificate by an officer of the Corporation approved by an officer of the Prudence Company, Inc., that certain of such bonds, with the coupons, if any, belonging thereto, matured at a date earlier than six years prior to the date of said certificate, and have not been presented for payment, the Corporation shall be entitled to withdraw from the trust fund, and the Trustee shall deliver to the Corporation, bonds, mortgages or other securities, or cash, enumerated in Article I, equal in amount and value to the principal amount of Prudence Bonds so delivered for cancellation and/or represented by the certificate above mentioned."
The second paragraph relates to the preceding (1) and (2), for it begins, "In either such case * * *" The third paragraph is not similarly restricted by the conditions found in the second paragraph.
On Rehearing
Before SWAN, Chief Judge, L. HAND and FRANK, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal by Prudence-Bonds Corporation (which we shall call the New Company), from the order of a court of bankruptcy in a proceeding under § 77B, Bankr.Act, 11 U.S.C.A. § 207, passing the account of the State Street Trust Company (which we shall call the Trustee), as trustee of three mortgages, pledged to secure the "Tenth Series" of negotiable bonds, issued by the original Prudence-Bonds Corporation (which we shall call the Debtor). On December 5, 1951, we dismissed the appeal on the ground that we had no jurisdiction over an attempted surcharge by the New Company of the account of the Trustee; the New Company has asked for a rehearing and the appeal has been reheard both by argument and briefs. Although Judge Inch's opinion in the District Court, 101 F.Supp. 729 states the facts in detail, it will make our discussion clearer, if we give a renewed outline of them. Prudence Company, Inc. (which we shall call the Guarantor) owned a large number of real estate mortgages, and sold them to the Debtor in exchange for ten or more "series" of negotiable bonds to be issued by the Debtor. As security for the tenth of these "series" the Debtor and the Trustee entered into a contract (which we shall call the Indenture), by which the Debtor assigned to the Trustee three of these mortgages, which with other property constituted a trust res. The Guarantor was not a party to the Indenture, but at the same time it executed a collateral agreement with the Trustee (which we shall call the Primary Guaranty), guaranteeing payment of the "Tenth Series" bonds, principal and interest, as they fell due. It was one of the Debtor's covenants in the Indenture that the Guarantor would also deposit a guaranty with the Trustee that the principal of any mortgages assigned to it by the Debtor should be paid by the mortgagors within eighteen months after it fell due, and that the interest should be paid when due. The Indenture, including the Primary Guaranty was executed on May 1, 1927; and on the 27th of July, 1928, the Guarantor deposited with the Trustee a guaranty (which we shall call the Secondary Guaranty) of the payment, as aforesaid, of any mortgages held as security. The mortgagors in one of the three mortgages that were part of the res, defaulted in the payment of its principal, and the default continued for more than eighteen months, during which period the Guarantor was solvent and could have performed the Secondary Guaranty. The Trustee filed its account in the reorganization proceeding at bar and prayed the court to settle the account and discharge it from further liability. The New Company which had succeeded to all the rights of a reorganization trustee, surcharged the account with the loss on the defaulted mortgage, the Guarantor having itself become insolvent shortly after the Debtor. Two questions arise: (1) Whether the New Company has any standing to enforce the Secondary Guaranty against the Trustee; and (2) if it has, whether its claim against the Trustee is good on the merits. In the decision that we are now rehearing, we assumed that the standing of the New Company to sue upon the claim must be determined under the law of New York, and that the courts of that state had held that, in situations like this, arising out of the neglect of a trustee to protect the res, as contrasted with a surrender or release of it, there arise only individual and separate claims of which the bondholders are severally the obligees, and which a reorganization trustee has no standing to assert. For that reason we dismissed the appeal, and had not occasion to consider the merits of the surcharge.
We have concluded that we were mistaken in assuming that the New Company had no such standing. The bondholders did of course have a direct claim against the Debtor by virtue of its promise to pay their bonds, just as they had a claim against the Guarantor upon the Primary Guaranty; but on this appeal we are concerned with neither. In addition they had claims against the Trustee under the Indenture; but these were only as beneficiaries of the trust, except as the Trustee made any express covenants in addition to its obligation as trustee. The Secondary Guaranty was a part of the res, as we shall show when we come to consider the merits; it was in substance an insurance by the Guarantor of performance of their promises by the mortgagors of the three mortgages — a sort of credit insurance. When the Trustee after notice of default upon one of these three mortgages — with which alone this appeal is concerned — failed to take any steps to enforce the Secondary Guaranty of which it was the obligee, it defaulted in its duty as trustee and became liable to the bondholders for any loss that resulted, except as the exculpatory clauses of the Indenture excused it; and, since the result turns upon the meaning of those clauses, our jurisdiction depends upon whether the New Corporation has any standing to press the claims of the bondholders for this breach. The Trustee says that the New Company has no such standing because by the law of New York, which controls the rights of the parties, the breach was at most a failure properly to protect a part of the res — i. e., to compel the Guarantor to perform the Secondary Guaranty — and not a "surrender or release." We agree that it was not. The Trustee next argues that the Court of Appeals of New York has several times decided that at the time of the events here in suit a bondholder's claim for such a breach did not pass with a transfer of the bond, but remained with the transferrer; and, further, that the claim even of those bondholders, who may not have bought their bonds after the breach, is personal to them severally, on which they must sue as primary obligees and which a trustee in reorganization under § 77B of the Bankruptcy Act may not assert on their behalf. Hence the District Court was without jurisdiction over the New Company's surcharge.
There can be no doubt that, until it was changed by statute, it was the settled doctrine of New York that in such situations a claim against a trustee for breach of his duty to protect the res, did not pass by transfer of the bond but remained the property of the transferrer;1 and the same doctrine was applied to transfers of "participation certificates" which did not secure a debt, but were direct and beneficial interests in the res.2 We held in Manufacturers Trust Co. v. Kelby, 2 Cir., 125 F. 2d 650 that this doctrine did not apply to a breach that was a "surrender" or "release" of any part of the res; and so far the parties are apparently on common ground. At any rate we will not reconsider that decision. Two questions therefore arise: (1) whether those bondholders who bought their bonds after the first breach here in suit have any claim against the Trustee; and, assuming that they have none, (2) whether the New Company has any standing to surcharge the Trustee's account on behalf of bondholders who bought their bonds before the breach. The New Company argues that the New York doctrine does not apply at all, because the Trustee was a Massachusetts corporation, because it accepted the Indenture in Boston where the bonds were payable, and because the New York doctrine is contrary to the law of Massachusetts. The Trustee answers that the law of the two states is the same; and that, if it were not, the suit does not concern the interpretation of the Indenture or its performance, as to which alone the law of Massachusetts would control; but that it concerns the effect of a transfer of the bonds, and what standing the New Company has to represent any of them — that last being a question of remedy which the lex fori controls.
We do not find it necessary to decide what was the effect of a transfer of any of the bonds in New York: i. e., whether the claim of the transferrer remained his or passed to the transferee; we shall assume arguendo that the ordinary doctrine applies to such transfers: i. e., that the law of the place of transfer determines what passes by the transaction,3 although the lex loci contractus determines whether a chose in action may be transferred at all.4 We can avoid any decision as to what law governed any transfer, because, as will appear, we think that on the merits the Trustee must win, and we are now concerned only with our jurisdiction to decide the merits. We do assume, as we have warrant for doing, that there were some at least of the bondholders on July 29, 1934, when the petition herein was filed, who had bought their bonds before May 28, 1930, when the mortgagor of the mortgage in question first defaulted in the payment of interest. (There was indeed a default in the payment of principal a year earlier, but the Secondary Guaranty imposed no duty upon the Guarantor for such a default until it had continued for eighteen months.) In the absence of any proof to the contrary we hold that there was ground for a finding that some of the bonds in suit were bought before May 28, 1930.
However, the fact that there were some such bonds does not answer the other question: i. e., whether the New Company may represent these bondholders in asserting their rights against the Trustee. That is not, as the Trustee argues, a question of remedy and on that account one to be determined by the lex fori; on the contrary, it is a question as to whether the New Company was a proper party to represent these bondholders upon the Trustee's accounting; and it depends upon Rule 17 of the Rules of Civil Procedure, 28 U.S.C.A., which General Order XXXVII, 11 U.S.C. A. following section 53, made applicable to proceedings in Bankruptcy, "as nearly as may be." Subdivision a of that rule declares among other things that "a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought". An order of the District Court entered on July 12, 1939, upon our mandate entered upon our opinion in Central Hanover Bank & Trust Co. v. President and Director of Manhattan Co., 2 Cir., 105 F.2d 130, provided as follows: "any objections * * * of the new Prudence Bonds Corporation to the accounts filed herein by the Corporate Trustees * * * shall be deemed and constituted to be made on its own behalf and on behalf of all holders * * * of the respective Series of Bonds to which any such objections * * * relate." We think that this provision was authorized by subdivisions f and h of § 77B which upon confirmation of a plan by a judge, gave to "the debtor and other corporation * * * organized * * * for the purpose of carrying out the plan * * * full power * * * shall put into effect and carry out the plan and the orders of the judge * * thereto". These provisions were amplified by subdivisions (13) and (14) of § 216 of Chapter X, 11 U.S.C.A. § 616, so as to leave no doubt of the broad implementary powers of a judge when a plan is confirmed; and, although Chapter X appears never to have been extended to the reorganization here at bar, we regard the later provisions as no more than a clarification of subdivisions f and h of § 77B. Therefore, we hold that the order of July 12, 1939, issued as it was under the authority of the act, made the New Company a "party authorized by statute" to "sue in his own name" under Rule 17(a); and, our jurisdiction being established, we may proceed to the merits.
As we have already said, we regard the Secondary Guaranty as part of the res. It was executed more than a year after the Indenture, although it bore the same date, and the fact that it was not in existence at the time may well account for the failure to recite it as part of the mortgaged property in §§ 1 and 2, Article I. In § 1 of Article III the Debtor made a number of covenants "exclusively for the benefit of the Trustee and the holders of Prudence-Bonds, Tenth Series," among which subdivision f read: "That it will deposit with the Trustee a guarantee of The Prudence Company guaranteeing payment of interest semi-annually when due, and of principal within eighteen months after the same becomes due, according to the terms of each bond, mortgage or other security in the Trust Fund." The Secondary Guaranty when made conformed to this covenant, and the Debtor deposited it with the Trustee in performance of it. Whether the Primary Guaranty was also a part of the res is another question, and we need not answer it, for it was a promise to the bondholders to pay the Debtor's obligations, and had nothing to do with the res. But by the Secondary Guaranty the Guarantor became a surety for the performance of the mortgagors, just as the mortgages were a surety for the same performance. The only difference between them was that in one case the security was the promise of a third person and in the other it was a lien upon property. The promise was a part of the res in precisely the same sense that the promises were in the policies of fire and title insurance, mentioned in Article I, § 2. As we have said, it was in effect the equivalent of a policy of credit insurance of the mortgagors.
The Trustee invokes three clauses of the Indenture to excuse its failure to enforce this Guaranty: (1) § 5 of Article I; (2) § 1(d) of Article IV; and (3) § 1 of Article V. These we will consider in that order. Section 5 of Article I begins by declaring that the Guarantor or the Debtor may collect "the securities constituting the trust fund" and may enforce any "agreements" that they "contain." Next it declares that, if the Debtor asks the Trustee in writing to do so and indemnifies it, it "shall enforce * * * any and all of the covenants and agreements contained in said securities or any or either of them for the benefit of the holders of Prudence bonds, issued and outstanding hereunder or" (for the benefit?) "of the Corporation" (the Debtor) "or of the Prudence Company Inc." (the Guarantor). This sentence would excuse the Trustee only in case the Secondary Guaranty was an "agreement" "contained" in some of the "securities" "constituting the trust fund"; and, if we are right in holding, as we just have done, that the guaranty was a part of the trust res, the words cover it, again as much as they cover a fire, or title, insurance policy. It seems to us quite unwarranted to distinguish between the "trust fund" and the trust res. On the other hand, the New Company argues that in any event the section means no more than that the Trustee shall be indemnified, if the Debtor should ask it to sue upon any such "agreements," and that it did not excuse a failure by the Trustee to seek indemnity for pressing its claim against the Guarantor upon its default; in short, it did not excuse complete inaction by the Trustee. If this section stood alone, we might hesitate to say that it created an excuse. However, when read in conjunction with § 1 of Article V, it confirms our conclusion, depending upon that section, that the Trustee meant to obtain a general immunity from any liability for nonfeasance.
Next is the second whole paragraph of § 1 of Article IV, which concludes by declaring that "no rights or remedies under this Article shall or may be exercised by the Trustee * * * unless and until The Prudence Company Inc. shall have failed to fulfill some obligation in said guarantee contained." Not only does the preceding language of this section show that the "said guarantee" could only mean the Primary Guaranty, but, it would have been brutum fulmen for the Trustee to enforce the Secondary Guaranty after the Guarantor had defaulted on the Primary. Besides, the definition of "events of default" does not include a default on the Secondary Guaranty, and the section touches only such defaults. We agree, therefore, that this section did not excuse the Trustee.
Article V of the Indenture was entitled: "Concerning the Trustee"; and § 1 was entitled: "Trust Conditions." It begins by declaring that the Trustee need not "enforce any of the provisions contained in any of the securities deposited in the Trust Fund, or towards the execution or enforcement of the trust hereby created," unless it gets indemnity. So far, as in the case of § 5 of Article I, it would be possible to construe this language as intended to do no more than give the Trustee the privilege of insisting upon indemnity before it undertook any "execution or enforcement of the trust"; but not as excusing it from nonfeasance. The following language, however, unequivocally does excuse the Trustee from any initiative, until it gets notice of some default or "event of default" from at least twenty-five per cent of the bondholders. The words are: "nor shall the Trustee be required to take notice of any default, or `event of default,' hereunder, and it may, for all purposes conclusively assume that there has been no default, or `event of default,' hereunder, * * * nor shall the Trustee take any action in respect to any default or `event of default' unless requested to take action" by the bondholders, and unless indemnified by them. A breach of the Secondary Guaranty is not, as we have said, an "event of default"; and therefore the excuse does depend upon the meaning of "default * * * hereunder," when used in contrast with "event of default." We think that such "defaults" included a breach of the Secondary Guaranty. In the first place it is noteworthy that in describing the occasions on which the Trustee might demand indemnity, the words were: "provisions contained in any of the securities deposited in the Trust Fund, or towards the execution or enforcement of the trust." That is of course a different locution from "default or `event of default'"; but to construe the second as less comprehensive would mean that there were some duties of the Trustee in enforcing the trust, that, although they were conditional upon being indemnified, it was bound to initiate sua sponte if it learned of them, except in cases where they were a "default or `event of default' hereunder," when it need not stir unless the bondholders requested it to do so. Conceivably there could have been some basis for such an apparently meaningless distinction; but if in fact it was intended we cannot believe that it would have been expressed in such nebulous fashion. Be that as it may, the language of the excuse appears to us explicit. The contrast between "default" and "event of default" shows that the first term added something to the second; and, had it not been for the suffix "hereunder" which applied to both, we can see no ground to doubt that it covered any kind of failure in the security for the res. If, as we hold, the Secondary Guarantor was a part of the res, the only verbal difficulty in reading a breach of it as a "default * * * hereunder" is that it was not physically comprehended in the Indenture. But it was comprehended by § 1(f) of Article III, for that, as we have seen, was a promise of the Debtor to "deposit" it with the Trustee. The objection comes therefore to no more than this: that a breach of it could not be a default "under" the Indenture, because, although the Indenture had provided for it, and although it was as much a part of the security for the bonds as the mortgages and fire and title insurance policies, it was not in existence at the time, and could be included "thereunder" only by a promise in futuro. Unless there is some reason which compels us deliberately to defeat what would be the unavoidable construction of the words in any other document, we cannot accept this argument.
Our conclusion is confirmed, not only by the words of § 1 of Article V which immediately succeed those we have been discussing, but by § 1(i) of Article III. The succeeding words were as follows: "The foregoing provisions of this Section are intended only for the protection of the Trustee," and are not to be taken in derogation of its powers or discretion to act without any demand by the bondholders. Here the intent plainly was to give the Trustee an immunity in all such cases, but nevertheless to leave it the initiative, if it chose to take it. We cannot think it possible with this purpose in mind, that the parties intended to make the Secondary Guaranty a single exception; so that, although the Trustee was to be protected against every other nonfeasance he was not to be protected against this. Since the Trustee was in any event completely protected if it failed to take any action against the mortgagors on their default, if the Guarantor had become insolvent before the mortgagors defaulted, the Trustee need not have taken any action whatever. The Indenture would have protected it as to the mortgagors and the insolvency would have protected it as to the Guarantor. Such a result could scarcely have been intended. Turning next to § 1(i) of Article III, it there appears that the Debtor was bound to furnish to the Trustee on the tenth day of each month written statements of — among other facts — the amount of principal collected during the preceding month on any of the mortgages in the Trust Fund. Then followed this sentence: "The Trustee shall be under no duty to take action upon any such statement or to see to the receipt thereof by it": that is, the Trustee was excused from action upon the information, or from getting it from the Debtor. We cannot see how in the face of this clause the Trustee can be held for nonfeasance for any default of the Guarantor on the Secondary Guaranty. It is true that the Debtor was not bound to state what interest had been paid during the preceding month, but that was to be expected, for the Trustee, like any other pledgee, was not entitled to any usufruct from the pledged property — the mortgages — until it took possession of them either under a power reserved, or by a receiver.
For the foregoing reasons we should have no doubt that the Indenture excused the Trustee, if the question arose upon an ordinary contract between it and the bondholders themselves. That, however, was not the case, for the contract bound them only through these words incorporated in each bond: "Reference is hereby made to said Trust Agreement for * * * the rights and remedies of the Trustee and the respective holders of said Prudence-Bonds, the rights of the corporation and the terms and conditions under which said bonds are secured, issued and guaranteed, and the holder hereof is bound thereby." The duty to care for the res5 and the realization of claims which the trustee holds in trust,6 are indeed inherent in the relation; and, although provisions are valid that exculpate a trustee for neglect of such duties, so long as that is not due to "reckless indifference," they are "strictly construed."7 If that phrase means that nothing may be implied which is not literally expressed, the Indenture did not protect the Trustee, for exculpatory provisions nowhere actually mention the Secondary Guaranty. That is not, however, the meaning of this canon; although they were used of a statute, the often quoted words of Holmes, J. apply with even greater force to a contract: "The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and we shall go on as before.8" It is as impossible to lay down any postulates for "strict construction" as it is for ordinary "construction." When parties have not explicitly covered the occasion which has arisen, a court will always strive to ascertain whether their disclosed purpose does not demand a more inclusive "intent." And by their "intent" we can understand nothing else than how they would have disposed of the occasion had they been faced with it at the outset.9 There is a hazard about doing that; but it is inevitable if the purpose is not often to be defeated and all courts do it more or less. When we say that we will adopt a "strict construction," we mean that we will press with unusual persistence the doubts that cannot but inhere in the function anyway, and that we will be satisfied with no extension of the literal meaning unless it satisfies every logical compunction. In the case at bar we have stated as best we can those considerations that have removed any doubt in our minds that the parties meant to give complete immunity to the Trustee for any nonfeasance in suing either the mortgagors or the Guarantor.
One thing further it may be well to mention. The Special Master in passing upon the merits appears to have laid stress upon the fact that, beginning late in 1928, the Trustee and the Debtor carried on a correspondence about the default upon the mortgage here in question — the "Guyon Mortgage." From this he reasoned, as we understand it, that the parties had put a practical construction upon the Indenture which showed that the Trustee conceded that it was under some duty to take action upon the Secondary Guaranty. Assuming for argument that there might be force in this if the Indenture had not provided otherwise, the language, already quoted, from § 1 of Article V, is in our judgment a complete answer to the inference. It will be recalled that the exculpatory provisions of that section were stated to be "intended only for the protection of the Trustee" but that they "shall not be construed to effect any discretion or power to determine whether or not it shall take any action in respect of any default or `event of default.'" Since the Trustee was therefore to be free, though expressly not bound, to sue upon the guaranty, we are quite unable to find in the correspondence an acknowledgment of liability.
Perhaps it ought not to be permissible to issue bonds, secured by indentures that contain such provisions for immunity. That depends upon how much care and attention those who buy the bonds expect from such trustees. We do not see how it is possible to pass on that question in the abstract; if we were to guess, we should say that they expect very little, though they do expect no action which will positively impair their interests. Besides, whatever may have been the proper duties to impose at the outset, so far as we are aware indentures containing such clauses have been uniform up to the present time; and any abuses that they have permitted have neither induced legislatures to intervene, nor courts to make an exception. Save for the stricter canon which we have mentioned, bondholders, like others who accept a written contract, have been charged with notice of all that it contains, whether they read it or not. It may be that in time courts will take a more protective view, though obviously there are two sides to the question; but to us it seems that a custom that has secured such long recognition should be left for correction to legislative inquiry and action.
Order affirmed.
Notes:
1
Elkind v. Chase National Bank, 284 N.Y. 726, 31 N.E.2d 198; Smith v. Continental Bank & Trust Co., 292 N.Y. 275, 54 N.E.2d 823
2
Hendry v. Title Guaranty & Trust Co., 280 N.Y. 740, 21 N.E.2d 515
3
Restatement of Conflict of Laws, § 350
4
Restatement of Conflict of Laws, § 348
5
§ 174, Restatement of Trusts
6
§ 177, Restatement of Trusts
7
§ 222, Restatement of Trusts
8
Johnson v. United States, 1 Cir., 163 F. 30, 32, 18 L.R.A.,N.S., 1194
9
A. Leschen & Sons Rope Co. v. Mayflower G. M. & R. Co., 8 Cir., 173 F. 855, 857, 35 L.R.A.,N.S., 1; Sternberg v. Drainage District, 8 Cir., 44 F.2d 560, 562; Rudy-Patrick Seed Co. v. Kokusai etc. Kaisha, 85 F.2d 17, 20; D. H. Pritchard Inc. v. Nelson, 4 Cir., 147 F.2d 939, 942
FRANK, Circuit Judge (dissenting).
I agree that (contrary to our original opinion on this appeal) the district court had jurisdiction.1 But I disagree with my colleagues' decision on the merits. To illuminate my reasons for dissenting, I shall first state briefly the following salient facts:
(1) The debtor company was an affiliate of (i. e., a creature of the same company that controlled) Prudence Company, Inc., the sponsor of all the many Prudence-Bonds "series" of bonds, which the sponsor sold to investors. (2) The sponsor's guaranty of payment of the securities deposited with the trustee for the benefit of the bondholders (the guaranty my colleagues call the "Secondary Guaranty") expressly recites that the sponsor, having acquired them, "is arranging to sell and deliver all of said Prudence-Bonds and in order to induce the purchase thereof" has agreed to make that guaranty. It is thus obvious that the sponsor, in selling these bonds to the public, used the Secondary Guaranty as an inducement; the ample solvency of the sponsor at that time gave that guaranty major importance.2 (3) The principal mortgage deposited with the State Street Trust Company, the trustee of the series before us here, was the Guyon mortgage. It constituted 85% in value of the deposited securities in the Trust Fund. This Guyon mortgage was continuously in default, as to principal, beginning in May 1930. From that time on, the trustee was keenly aware of that default, as appears from many letters, calling attention to it, written by the trustee or its counsel to the debtor or the guarantor. (4) The so-called Secondary Guaranty provided that the guarantor would pay the principal of such a defaulted mortgage within eighteen months.3 The eighteen months expired in November 1931. Since the guarantor was solvent then, and for several years thereafter, the bondholders (the beneficiaries of the trust) would have been paid in full, if the trustee had sued the guarantor with reasonable promptness. (5) But the trustee — which does not and could not possibly argue that it overlooked the default, and which has reported no reason for its conduct — deliberately, with "reckless indifference to the interest of the beneficiaries of the trust,"4 chose to take no action against the guarantor until the guarantor's bankruptcy, some three years later, in 1935. (6) As a consequence, the bondholders suffered a huge loss. (7) There was no way by which any bondholder could have known, and no bondholder in fact did know, of the default on the Guyon mortgage, or of the resultant liability of the guarantor, until after the guarantor's bankruptcy in 1935. Accordingly, until then — when it was too late — none of the bondholders could possibly have demanded that the trustee sue the guarantor on the Secondary Guaranty.5
The trustee, nevertheless, denies liability. Its defense may be summarized thus:
"It is true that we alone could enforce the guaranty since, by its express terms, it ran only to us, as trustee, for the benefit of the bondholders. We maintain, however, that we were but custodians of this guaranty, with no obligation whatever to enforce it, although well aware of the happening of facts rendering the guarantor liable, because we had merely a power to sue the guarantor if we happened to feel like it, unless we were requested so to act by bondholders. Practically, of course, this idea of a request from bondholders made no sense, for the bondholders could have no information of the guarantor's default unless we, with knowledge of it, happened to feel like advising them of it. But we did not happen to feel that way. Simply by not telling them of a fact which we knew but which we knew they did not know, and in that way arranging that they could not ask us to act, we were able, without liability, to engage in what would otherwise have been a complete disregard of our duty as trustee.6 We had no duty to inform the bondholders. Why? Because, although we were boldly named in the bonds and the indenture as `Trustee,' we assert that a careful reading of the indenture reveals that we had been thus immunized from liability for not acting as a trustee with respect to this guaranty. For, although no clause expressly so states, we contend it is clear that, piecing together several of the clauses and relying on implication, our inaction on this guaranty gave rise to no liability on our part."7
My colleagues sustain this defense. In arriving at their decision, they use much ingenuity in interpreting ambiguous provisions of the indenture, with (I think) marked generosity to the trustee — which (unlike the bondholders) had studied and agreed to those provisions before any bonds were issued and sold. My colleagues say that "the trustee meant to obtain a general immunity from any liability for non-feasance." Had that been the intention, the matter would not have been left to implication, but the indenture would have provided, as many trust indentures do, that the trustee should not be liable except for its own wilful default" or the like.8
Even if it had, the trustee here would have been liable, I think. For it is well settled that even such a clause cannot exempt a trustee from liability for inaction which amounts to "reckless indifference to the interest of the beneficiaries." Thus the Restatement of Trusts (cited by my colleagues) says, in Section 177, "The trustee is under a duty to the beneficiary to take reasonable steps to realize on claims which he holds in trust," and, in Section 222(2), "A provision in the trust instrument is not effective to relieve the trustee of liability for breach of trust committed * * * with reckless indifference to the interest of the beneficiary. * *" Comment a to Section 272 states that exculpating provisions "are strictly construed, and the trustee is relieved of liability only to the extent to which it is clearly provided that he shall be excused"; and Comment b says that it is "contrary to public policy to give effect to" a provision purporting to exculpate a trustee from "breaches of trust committed with reckless indifference." Scott, Trusts (1939) is in accord; see Sections 222.2 and 222.3. The Massachusetts court, whose decisions are applicable to the liability of the trustee under this Massachusetts instrument, recently cited with approval the statements of Scott and The Restatement,9 indicating their peculiar relevance to the duties of a trust company acting as a trustee.10
Here, absent any explanation, surely the trustee's deliberate neglect to sue the guarantor adds up to "reckless indifference." Yet although the express wording of the exculpatory clauses here is much narrower than "wilful default," my colleagues, solely by implication, construe those narrower clauses as intended to accord the trustee a wider immunity which, without saying why, my colleagues hold valid. They confer absolution on this trustee by reading into the exculpatory clause on which they principally rely an implied reference to the Secondary Guaranty. Their reasoning relates to the following: Throughout the indenture (literally more than a hundred times) there are references to the "Trust Fund"; in each instance the initial letters of those words are thus capitalized. In the opening recitals of the indenture, it is said that a "Trust Fund" has been established "as provided in Article I hereof." Article I bears the caption, "Concerning the Trust Fund." And Section 1 of Article I, captioned "Contents of Trust Fund," sets forth with precision the several kinds of securities, to be delivered to the trustee, of which "said Trust Fund shall consist." Section 2 of Article I mentions specifically the instruments which must accompany the securities described in Section I; included in those instruments are fire insurance and title policies. Significantly, the Secondary Guaranty is not mentioned anywhere in Section 1 or Section 2. Nevertheless, my colleagues concededly base their decision on the proposition that the promise of that Guaranty was part of the Trust Fund "in precisely the same sense" as were the "promises in the policies of fire and title insurance, mentioned in Article I, Section 2" — although this court held the exact opposite in an earlier Prudence-Bond decision, President and Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465, 478.11
*
I shall, however, postpone (and kennel in Point II of this opinion) my detailed criticisms of my colleagues' interpretations of the several clauses of the indenture, because I think that, even if those detailed criticisms are unfounded, my colleagues' ultimate conclusion cannot stand up. For, when they get all through their discussion of particular clauses, my colleagues candidly acknowledge (1) that the instrument contains no plain words, or blanket provision, relieving the trustee of liability for not enforcing this guaranty and (2) that any provision exculpating a trustee must be "strictly construed." I believe, then, that it will suffice to justify this dissent if I can expose (as I think I can) grave faults in my colleagues' avowed method of "strictly" construing such a provision
They maintain (a) that the correct method of interpreting a contract is the same as that used in interpreting a statute, and (b) that, therefore, in construing this trust agreement, the intent of the parties — whose words admittedly did not explicitly exculpate the trustee from liability as to the Secondary Guaranty — must be learned not by ascertaining what the parties actually intended but by answering the question as to how they would have dealt with this problem, which they never did consider, if they had thought of it when drafting the agreement. To these assertions I reply thus:
One may doubt — indeed many have doubted — whether all the guides to the interpretation of statutes serve adequately as aids to the interpretation of contracts.12 The doubt stems from the obvious difference between the intention of a legislature and the intention of parties to an agreement: The legislature is composed of many persons; seldom do all of them know or understand the words of a bill which becomes a statute; such knowledge often is confined to some members of a committee.13 Wigmore expressed scepticism concerning "the conventional assumption that there is a legislative will at all."14 A Senator once said of a tax measure that "even Senators who have worked upon the bill for months do not understand it," and another Senator remarked that "there are many sections of the bill which it is almost humanly impossible for a man who is not an expert to understand or comprehend."15 Powell has interestingly differentiated "private" writings (such as contracts, deeds and wills) and "public" writings (such as statutes, constitutions and treaties). All of the "public" genus "are alike in that commonly they are formulated by a group other than the group whose acts make them binding." They "are not couched in words which were chosen by those whose assent gives them validity, but are in language selected by other persons whose guiding purposes are often wholly unknown and unapproved by those whose assent makes them binding."16 On that account, even the most liberal of those judges who rely on "legislative history" rather severely restrict the background the courts may explore to get at the legislative "intent." As, however, the persons who prepare and sign a contract are (unlike the members of the legislature) definitely ascertainable, it is easier to determine their intent. The courts therefore usually accord themselves a wide latitude in pursuing what may be dubbed the "contractual history."17
Consequently, although the ancient (Aristotelian) precept — "Consider how the legislature would have legislated if the legislators had thought of the subject"18 — has often been applied in construing statutes by courts in this country and elsewhere,19 this precept cannot be employed safely, I think, in construing a contract — when one seeks to discover what the parties really intended. With reference to contracts, such a precept has come to be recognized as nothing but a fiction used to sugar-coat the fact that the court, entirely without regard to the parties' intention, is imposing on them (or one of them) an obligation based on considerations of public policy, i. e., the court's notion of justice, of decent, socially desirable conduct. True, at one time, under the spell of the notion that nothing but the will of the parties could determine their rights and duties, the courts, when thus importing into a contract a pretended provision not there found, did so on the alleged ground that so the parties would have said if they had thought of it. But of recent years, many courts (including this court) and the leading commentators have spurned that idea.20 They have insisted that, in reality, the court in such circumstances inserts in the contract "what the court thinks the parties ought to have agreed, on the basis of what is fair and reasonable, not what as individuals they might have agreed," because what they would have said is but guesswork;21 the judicially inserted provision is now acknowledged to have been "invented by the court" because "justice demands."22 So we have declared several times.23 So Williston24 and Corbin have stated.25 I repeat that the fictitious "intention" in such cases derives from judicial notions of policy, of fairness, of justice. It is, writes Williston, "better to drop any talk about the intention of the parties where they express none, and rest [such doctrines] on their fairness — a quite sufficient basis."26
It follows, I think, that (as pretty plainly appears from the last part of their opinion) my colleagues base their decision not on what the parties really meant by their words but on what my colleagues, as a matter of policy, regard as a fair, just, or socially desirable result. With that result — that policy — I do not agree. I cannot believe that, disregarding the actual intent of the parties, we foster decent, socially desirable, conduct when we hold (as my colleagues do) the following:
(1) The trustee, by not bringing a timely suit on the guaranty, has cost the beneficiaries of the trust, the bondholders, at least some $400,000.
(2) Nevertheless, the trustee is not liable for this loss. Why? Solely because (so my colleagues say) no bondholder-beneficiary notified the trustee of the guarantor's default — despite the undeniable and undenied fact that no bondholder knew or could have known of it, and the trustee, well aware of it, did not advise the bondholders of the default.
To my mind, such a decision is most regrettable. It debases the noble word "trustee," allows it to become a tricky decoy to catch and injure innocent investors. "There's no equity stirring,"27 I think, in such a judicial policy. In another Prudence-Bonds case, involving an identically-worded trust indenture, we replied to the trustee's asserted interpretation of a different provision of the instrument, that so to construe it "would be to impute to the Corporation [the debtor] and the Bank [the trustee] an intention which verges on dishonesty, and it is therefore an interpretation not to be adopted unless (as is not the case here) no other is possible."28 Much the same can and should be said in the instant case. To call a prostitute a virgin would, I think, be no more strange than to permit the trust company here successfully to avoid one of its major fiduciary obligations and yet call itself a "trustee."
II
The foregoing, if correct, will alone suffice to refute my colleagues' arguments. In addition, I think their reasoning as to specific exculpatory provisions is unsound.
1
They say (as noted above) that their decision depends and must depend, on this proposition: The indenture, by necessary implication, made the so-called Secondary Guaranty a part of the "Trust Fund" described in Article I. With this proposition I disagree for these reasons:
Article I is entitled "Concerning The Trust Fund." Section 1 of this Article states that the "Trust Fund shall consist of the following," and then goes on to refer specifically to (a) bonds and mortgages made by corporations other than the debtor or the guarantor; (b) bonds, notes or other evidences similarly made, other than those described in (a) and of a stated character; (c) bonds of the debtor and shares of bonds and mortgages; (d) bonds and other securities legal for investment by banks; (e) cash (or the equivalent). Section 2 of Article I calls for instruments which must accompany "bonds and mortgages delivered to the Trustee" under Section 1 — viz., fire insurance and title guaranty policies.
There is not a syllable in Article I — the sole Article purporting to describe the Trust Fund — which — although it specifically refers to the fire and title insurance policies — in any way refers to the so-called "Secondary Guaranty." That Guaranty is described in, and required by, a distinct Article, i. e., Article III, Sec. 1(f).29 The fact that this Guaranty is not described in Article I — which quite carefully enumerates the contents of the Trust Fund, including, in Section 2 the fire and title policies — would seem clearly to defeat the argument that that Guaranty was meant to be included in Article I: If such was the parties' purpose, it would have been so easy to say so explicitly. Nevertheless, my colleagues include that Guaranty in Article I by mere implication — and, remarkably, as a part of their purported "strict" interpretation.
My colleagues obviously feel called upon to explain why, if that Guaranty was intended to be part of the Trust Fund, it was not explicitly named in Article I. This they do thus: They say that the Secondary Guaranty was not executed until "more than a year after the Indenture" and that "the fact that it was not in existence at the time may well account for the failure to recite it as part of the mortgaged property in Sections 1 and 2, Article I." Surely that attempted explanation won't wash, since there was nothing whatever to prevent the guarantor, the sponsor of the trust, from executing this Guaranty and delivering it to the Trustee on the very day the indenture and the Primary Guaranty were executed.
Moreover, as above noted, this court — in a case not mentioned by my colleagues — has already decided this issue. President & Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465, 478, related to the liability of a trustee under an indenture, securing another Prudence-Bonds "series," worded precisely as is the indenture here. There the trustee, before authenticating the debtors' bonds, had not obtained what we have here called the Secondary Guaranty. Rejecting a suggestion that this failure made the trustee liable, we said (147 F.2d at page 478): "Appellees also suggest that the Bank [the trustee] improperly authenticated the Corporation's [debtor's] bonds because, before authentication, there was not in its possession the guarantee of (a), (b), and (c) collateral in the trust fund. But neither Article I, § 1, which describes the required contents of the trust fund, nor the associated Article I, § 2, which describes the instruments which must accompany mortgage collateral, refers to that guarantee."
As, then, there exists no foundation for their reasoning, I see no warrant for my colleagues' assertions (1) that, within Section 5 of Article I — the very Article which, in its sections 1 and 2, specifically enumerates the contents of the "Trust Fund" but does not include in that enumeration the Secondary Guaranty — this Guaranty is an agreement "contained" in some of the "securities constituting the trust fund" fully as much as a "fire, or title, insurance policy," and (2) that a breach of the guaranty was a "default * * * hereunder," within Article V, Section 1. For, according to my colleagues' opinion, both those assertions are necessarily grounded on the untenable proposition that this Guaranty was part of the Trust Fund.
2
My colleagues say, however, that they cannot understand why there should be any distinction between the "Trust Fund" and the "trust res." I experience no difficulty in seeing such a distinction, especially as the instrument itself observes it, as when, in the sixth paragraph of Article V, Section 1, it speaks of "the trust estate," whereas elsewhere there are repeated references to the "Trust Fund." I think the parties labelled a portion of the trust estate (or trust res or trust assets) by a distinctive term —i. e., the Trust Fund — for the purpose of restricting the liability of the trustee with respect to such assets, while not thus relieving the trustee as to the particular asset, the Secondary Guaranty, not included in that part of the trust estate labelled the "Trust Fund."30
My colleagues argue that the parties could not have intended such a differentiation, as it would have the result (1) of exculpating the trustee for failure to foreclose the mortgages deposited with it, and specifically described as constituting part of the Trust Fund, but (2) of leaving the trustee liable for not enforcing the Secondary Guaranty. This result my colleagues deem irrational. But I think they have overlooked this fact: From the evidence in this case and other Prudence Bonds cases decided by us, it is easily inferable that the several trustees were grossly negligent in discharging their duties because they considered the guarantor — the sponsor of all these trusts — so amply solvent that any losses on deposited mortgages were unimportant. (A fact noted above lends strong support to this inference, i. e., that the sponsor declared, in the Secondary Guaranty itself, that it was using that Guaranty to induce investors to purchase the bonds. If, however, there were doubt about this inference, we should, I think, remand to give appellants an opportunity to offer evidence on that score.) Presumably, then, the most important asset securing the bonds was the potential liability of the guarantor on the Secondary Guaranty. Here it should be noted that a default in payment of the principal of a deposited mortgage might take place — as here it did — without the knowledge of the bondholders and long before a default in payment of the debtor's own bonds; that is precisely why prompt enforcement of the Secondary Guaranty had great value to the bondholders — and why, explicably, the exculpatory clauses did not excuse the failure to sue in that Guaranty.
3
Section 7 of Article I provides that the debtor "shall have the right," with the consent of the guarantor, "to alter, or modify the terms of any bond, mortgage, or other security or instrument, constituting a part of the Trust Fund" (provided an officer of the debtor certifies that the value of the remaining security is adequate to secure the outstanding debt). My colleagues' basic premise (i. e., that the Secondary Guaranty is a security included in the Trust Fund described in Article I) leads to the unreasonable conclusion that that Guaranty could thus have been altered or modified by the guarantor and its affiliate, the debtor.
4
That my colleagues are compelled to strain the indenture's language to reach their conclusion shows up in their discussion of the first sentence of Section 1 of Article V which, for convenience, I quote in the footnote31 As this long-winded sentence is divided into two parts, separated by a semicolon, I think it will help to print it as follows, with no change in wording or punctuation,32 so as to bring out its logical structure:
"The Trustee and its successor or successors in the trust hereby created accept the trust herein created upon the distinct understanding and agreement that
(A) the Trustee shall be under no obligation to take any action
to enforce any of the provisions contained in any of the securities deposited in the Trust Fund
or
toward the execution or enforcement of the trust hereby created
which, in its opinion, shall be likely to involve it in expense or liability,
unless the Corporation or one or more of the holders of Prudence-Bonds issued hereunder shall, as often as required by the Trustee, furnish indemnity satisfactory to the Trustee against such expense or liability;
(B) nor shall the Trustee be required to take notice of
any default or `event of default' hereunder, and it may, for all purposes,
conclusively assume that there has been
no default or `event of default' hereunder, unless and until notified in writing thereof by the holders of at least twenty-five percentum in principal amount of the Prudence-Bonds issued hereunder and then outstanding, distinctly specifying such default,
nor shall the Trustee take any action in respect to
any default or `event of default' unless
requested to take action in respect thereto by a writing signed by the holders of not less than twenty-five percentum in principal amount of the Prudence-Bonds issued hereunder and then outstanding,
and
upon being tendered indemnity as hereinbefore provided."
The second, part of this sentence — beginning with the symbol (B) — deals exclusively with "a default or `event of default.'" The first part covers much more; it includes "enforcement of the trust hereby created." To the extent, then, that "enforcement of the trust" goes beyond action as to a "default" or "event of default," it plainly is not covered by the second part. The second part, however, provides that the trustee is excused from taking action on a "default" or "event of default" unless both (a) indemnified on its demand for indemnity, and (b) requested by bondholders to take action; but in the first part, as to "enforcement of the trust," the trustee is excused only if not indemnified when it demands indemnity. If, then, the failure of the guarantor to comply with the Secondary Guaranty was not a "default" or "event of default," the trustee had no excuse for not suing the guarantor, since the trustee never asked for indemnity. My colleagues concede that the guarantor's failure so to comply was not an "event of default." But they treat it as a "default." This they do by equating the trustee's action on a "default" with "enforcement of the trust." Only by thus curiously merging the first and second part of this sentence, which the draftsmen carefully kept asunder, are they able to excuse the trustee for non-action here on the ground that no bondholders requested a suit against the guarantor.
5
In support of their interpretation, my colleagues refer to Article III, Section 1(i), which provides that the debtor shall furnish the trustee with monthly written statements showing the amount of principal — not interest — collected on each mortgage in the Trust Fund. It also provides, "The Trustee shall be under no duty to take action upon any such statement or see to the receipt thereof by it." Now this provision — not mentioned in the briefs filed by the trustee — must be matched with the Secondary Guaranty which covers two separate items: The Guarantor guarantees
(a) payment, when due, of the interest on all securities in the trust fund;
(b) payment of the principal of those securities not when due (as in the case of interest) but eighteen months after due date.
Wherefore, if my colleagues correctly interpret Article III, Section 1(i), then, curiously, it absolves the Trustee of any duty to enforce the guaranty as to principal but not as to interest, i. e., the trustee would be liable, because of non-enforcement of the Guaranty, to make good defaulted interest on, but not a default as to principal, of a deposited mortgage. The queerness of this result, I think, goes to show that that interpretation is untenable. It is, I think, more reasonable to construe the words "The Trustee shall be under no duty, etc." (a) as not requiring the trustee to take action to bring about payment by the Guarantor of the principal of a deposited mortgage when it fell due, but (b) as not relieving the trustee of the duty (1) to take action against the guarantor as to interest on such a mortgage when due, and (2) to take such action eighteen months after principal on such a mortgage came due.
But let us assume, arguendo, that this sentence did absolve the trustee of the duty to ascertain whether a pledged mortgage defaulted as to principal and remained in default for eighteen months. On that basis, without such knowledge, the trustee was not obligated to sue the guarantor for non-payment of such principal. I submit that, even so, this sentence did not relieve the trustee of its duty to enforce the guaranty when, as here, it actually knew that a deposited mortgage was in default for eighteen months. It was said in 1928: "If a situation arises which to the knowledge of the trustee directly imperils the integrity of the trust estate, it is fair to assume that a duty of protection would be implied regardless of express covenants or clauses relieving the trustee of liability for inaction. Certain events by their very nature do not become known to bondholders, and this fact, as well as the character of the event, must be taken into consideration in determining whether a situation is of such consequence as to demand action on the part of the trustee."33 The same article, referring to a provision that the trustee, even when apprised of a default, is not obligated to take action unless requested by bondholders, also says that, if the trustee "has actual knowledge of a default going directly to the integrity of the security, whether because it has been informed by the bondholders or otherwise, the trustee would be ill-advised if it failed to exercise at least ordinary care in protecting the res. This would be particularly true if the nature of the default is such that the bondholders may be unaware of its existence."34 The same author, writing in 1937,35 described such a provision as the "ostrich" clause, and remarked, "It may be doubted" whether it "will protect the trustee in the presence of actual knowledge of default, where inaction results in loss to the bondholder." He further said: "Manifestly, notice from bondholders is impossible unless they know of the default, and the usual indenture provisions impose upon the trustee no duty to impart such knowledge. The absurd result reached is that the trustee is conclusively presumed not to know of a condition which in most situations it is the first to learn. It by no means follows, however, that the trustee in the absence of such a duty may safely remain quiescent; for the very necessity for notice and demand implies that at some point in the course of the transaction there will be imposed upon the trustee, as an inherent incident of its relationship, the implied duty to notify bondholders in order that they may act for their own protection if the trustee does not."36
I find it difficult to interpret the sentence in Article III, Section 1(i) as my colleagues do, since the result of their interpretation would be that the guaranty as to the deposited mortgages would have no practical value as security for the debtor's bondholders. For, as they would not — as they did not — learn of the non-performance of that guaranty until the guarantor failed to perform its "Primary Guaranty" (i. e., to pay the bonds themselves), my colleagues' interpretation of this sentence would have the effect, practically, of converting into window-dressing, deceptive of the purchasers of bonds, the guaranty of payment of the deposited securities.
6
My colleagues' discussion of the exculpatory provisions reveals those provisions as being (to say the least) somewhat ambiguous. It is, then, pertinent that the bondholders had nothing to do with drafting the indenture but that it was prepared by the trustee, the debtor, and the guarantor, before any bonds were issued and sold to investors. Applicable here is the familiar rule (well stated in a case my colleagues cite)37 that, when a contractual provision is ambiguous, it should be most strongly construed against the person who prepared it.38
Perhaps by way of an anticipatory replication my colleagues say that "indentures containing such [exculpatory] clauses have been uniform up to the present time," without judicial interference. I believe that statement unjustified: As above stated, many indentures contain a blanket exculpatory provision (i. e., no liability except for "wilful default," or the like), and such a provision would not have protected the trustee here, since its conduct amounted to "reckless indifference." I have found no cases, other than our previous Prudence-Bond cases,39 interpreting clauses worded as are those before us here. To construe those clauses liberally, in order to save the trustee harmless is, I think, without precedent. More, it is against the precedents.40
Notes:
1
I would not, however, limit the jurisdiction to the claim based on bonds purchased before May 28, 1930, because I think the New York courts would not apply the unique New York doctrine even as to bonds transferred in New York, where, as here, the trustee is a trust company incorporated and authorized to do business in Massachusetts, the trust was there accepted, and the bonds were there issued and payable
2
See, infra, Point II, 2, for further discussion
3
This guaranty provides that "The Guarantor hereby agrees to guarantee and does hereby unconditionally guarantee the payment of interest accruing on all said securities now or at any future time deposited in the Trust Fund, under and pursuant to Article I, Section I, paragraph (a), (b) and (c) of said Trust Agreement, when due and payable, and also guarantees the payment of the principal thereof within eighteen months after the same shall have become due according to their respective terms."
4
See, infra, for discussion of the Restatement of Trusts
5
The bondholders would learn promptly of a default on the so-called Primary Guaranty, i. e., to pay the debtor's bonds themselves when in default. But no such default occurred until 1935
6
See discussion, Point II, 5, infra
7
My use of quotation marks does not mean that I am literally quoting the trustee. I am paraphrasing its arguments
8
See, e. g., New England Trust Co. v. Paine, 317 Mass. 542, 548-551, 59 N.E.2d 263, 158 A.L.R. 262; Milbank v. J. C. Littlefield, Inc., 310 Mass. 55, 62, 36 N.E.2d 833; Peterson v. Hopson, 306 Mass. 597, 608-610, 29 N.E.2d 140, 132 A.L.R. 1; Digney v. Blanchard, 226 Mass. 335, 337, 115 N.E. 424; Warren v. Pazolt, 203 Mass. 328, 347, 89 N.E.2d 381
9
See New England Trust Co. v. Paine, 317 Mass. 542, 550, 551, 59 N.E.2d 263, 158 A.L.R. 262
See also Posner, Liability of the Trustee under the Corporate Indenture, 42 Harv.L.Rev. (1928) 198, 244-245; 37 Col.L.Rev. (1937) 130, 131-132.
10
See 20 Minn.L.Rev. (1935) 210, 215: "Where the trustee is a corporation that holds itself out as peculiarly well qualified to assume the duties of the trust relationship, it will probably be held to a higher standard of care than would be required of an individual." See also Shinn, Exoneration Clauses in Trust Instruments, 42 Yale L.J. (1933) 359, 374-376
11
This case will be discussed in Point II, infra
12
See, e. g., Silving, A Plea For a Law of Interpretation, 98 U. of Pa.L.Rev. (1950) 499, 505
This is true despite the fact that a contract is sometimes considered a sort of "private statute" made by the parties and binding them, as to which see, e. g., Lawson, The Rational Strength of English Law (1951) 56-57; The French Civil Code, Art. 1134.
13
See, e. g., Wigmore, The Judicial Function, Editorial Preface to Science of Legal Method (1921) xxxiii et seq.; cf. S. E. C. v. Robert Collier & Co., 2 Cir., 76 F. 2d 939, 941
14
Wigmore, loc. cit
15
Eisenstein, Some Iconoclastic Reflections on Tax Administration, 58 Harv.L. Rev. (1945) 477, 519, note 240
16
Powell, Construction of Written Instruments, 14 Ind.L.J. (1939) 199, 204-206
Powell refers to a New York statute, dealing with "cross-remainders," which he drafted, and tells this story: "While the bill was pending an inquiring member of the committee to which the bill had been referred met another legislator who was a lawyer and said: `Tom, what's this bill about cross-remainders?' The answer came back: `Jack, I wouldn't know a cross-remainder if I met one on the street!' The bill was passed despite this legislative unawareness of its import. Every volume of the Session Laws of this or any other state bears eloquent and frequent witness to like acts of faith."
Powell does remark (pp. 208-9) that a "private" writing is often drafted by a lawyer serving as a ghost-writer. But such ghost-writers have usually consulted with, and have tried to carry out the purposes of, the persons who sign those "private" writings.
We should not succumb to the temptation to work out a monistic theory of interpretation. (1) The several kinds of "private" writings should not be similarly interpreted: There are good reasons for dealing somewhat differently with wills and contracts; and constitutions call for treatment not entirely like that applied to statutes. (2) Nor should courts construe earlier judicial opinions just as they do statutes; see, e. g., Burrows, Interpretation of Documents (1943) 36 note 1; Lawson, The Rational Strength of English Law (1951) 16-17. In one important respect, the difference is obvious: a statute is not abrogated by disuse, but a precedent does become obsolete. See Eder, Comparative Survey of Anglo-American and Latin-American Law (1950) 21-22; cf. Gray, Nature and Sources of Law (2d ed 1921) 193-196; Allen, Law in the Making (5th ed. 1951) 454-457; Lenhoff, Comments, etc., on Legislation (1949) 849 et seq.
17
See, e. g., 3 Corbin, Contracts (1951) §§ 536, 537, 543, 549, 555; Powell, loc. cit., 231-233
18
Aristotle, Nicomachean Ethics, Bk. V, Ch. 10, 1137b, quoted in Usatorre v. Victoria, 2 Cir., 172 F.2d 434, 439, note 12
19
See, e. g., Usatorre v. Victoria, 172 F.2d 434, notes 12 to 16; Tobin v. Edwards, Wagner Co. Inc., 2 Cir., 187 F.2d 977; Guiseppi v. Walling, 2 Cir., 144 F.2d 608, 615 et seq., 155 A.L.R. 761; N. L. R. B. v. National Maritime Union, 2 Cir., 175 F.2d 686, 690; cf. State Tax Commission v. Aldrich, 316 U.S. 174, 202, note 23, 62 S.Ct. 1008, 86 L.Ed. 1358; Cardozo, The Nature of The Judicial Process (1921) 140
20
The cases cited by my colleagues, with one exception, do not voice the old fiction. The one exception, Rudy-Patrick Seed Co. v. Kokusai, etc., Kaisha, 2 Cir., 85 F.2d 17, 20, contains a dictum which is directly contrary to statements in this court's subsequent opinions cited in note 19, infra
21
Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd., [1943] A. C. 32, 70, 71
22
Denny, Mott & Dickson, Ltd. v. James B. Fraser & Co. Ltd., [1944] A.C. 265, 275
23
Parev Products Co. v. I. Rokeach & Sons, 2 Cir., 124 F.2d 147; United States v. Forness, 2 Cir., 125 F.2d 928, note 25; Kulukundis Shipping Co. v. Amtorg Trading Corp., 2 Cir., 126 F.2d 978, 990-991; Beidler & Bookmyer v. Universal Insurance Co., 2 Cir., 134 F.2d 828, 829-830; Guttmann v. Illinois Central R. Co., 2 Cir., 189 F.2d 927, 929, 27 A.L.R.2d 1066; cf. Martin v. Campanaro, 2 Cir., 156 F.2d 126, 130 note 5; Sperbeck v. A. L. Burbank & Co., Inc., 2 Cir., 190 F.2d 449, 451
24
Williston, Contracts (Rev.ed. 1932) §§ 806, 825, 896, cf. 615
25
See, e. g., Corbin, Contracts (1951) §§ 550, 561, 565, 622, 632, 653, 654, 1331
26
Thus "many so-called contractual obligations may be viewed as to some extent quasi-contractual"; Sperbeck v. Burbank & Co., Inc., 2 Cir., 190 F.2d 449, 451; Martin v. Campanaro, 2 Cir., 156 F.2d 126, 127, 130
27
Shakespeare, I Henry IV, Act II, scene 2. See Phelps, Falstaff and Equity (1901) 10ff. Cf. Isaiah 59:14
28
President and Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465 at page 470
29
Section 1 of that Article — entitled "Covenants of the Corporation" (the debtor) — provides that the debtor "covenants and agrees * * * (f) that it will deposit with the Trustee a guaranty of the Prudence Co., Inc., guaranteeing payment of interest semi-annually when due, and of principal within eighteen months after the same becomes due, according to the terms of each bond, mortgage and other security in the Trust Fund under paragraphs (a), (b) and (c), Section 1 hereof."
30
Of course, an unsecured claim against a third person can be a trust res or trust asset, its enforcement being a duty of the trustee. See Brooklyn Trust Company v. Kelby, 2 Cir., 134 F.2d 105, 116; York v. Guaranty Trust Company of New York, 2 Cir., 143 F.2d 503, 512
As this court has said, the use of the Latin word "res," instead of the English word "thing," sometimes leads to confusion. See Brooklyn Trust Company v. Kelby, 2 Cir., 134 F.2d 105, 116.
My colleagues speak confusingly (to me) when they say that they need not consider whether "the Primary Guaranty was a part of the res," since "it was a promise to the bondholders to pay the Debtor's obligations, and had nothing to do with the res."
In President & Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465, 478, in passing on the jurisdiction of the court over a claim against the trustee for failing to enforce the debtor's covenant to deposit what we here call the Secondary Guaranty, we said that that claim was not one "for restoration of the fund" within the peculiar New York decisions as to who may sue where a technical "restoration-of-the-fund" is not involved. That jurisdictional decision, under that unique New York doctrine, is not pertinent here on the substantive issue whether the Secondary Guaranty was part of the "trust estate" administered by the trustee.
31
"The Trustee and its successor or successors in the trust hereby created accept the trust herein created upon the distinct understanding and agreement that the Trustee shall be under no obligation to take any action to enforce any of the provisions contained in any of the securities deposited in the Trust Fund or toward the execution or enforcement of the trust hereby created which, in its opinion, shall be likely to involve it in expense or liability, unless the Corporation or one or more of the holders of Prudence-Bonds issued hereunder shall, as often as required by the Trustee, furnish indemnity satisfactory to the Trustee against such expense or liability: nor shall the Trustee be required to take notice of any default or `event of default' hereunder, and it may, for all purposes, conclusively assume that there has been no default or `event of default' hereunder, unless and until notified in writing thereof by the holders of at least twenty-five per centum in principal amount of the Prudence-Bonds issued hereunder and then outstanding, distinctly specifying such default, nor shall the Trustee take any action in respect to any default or `event of default' unless requested to take action in respect thereto by a writing signed by the holders of not less than twenty-five per centum in principal amount of the Prudence-Bonds issued hereunder and then outstanding, and upon being tendered indemnity as hereinbefore provided."
32
I have italicized some words, and added the symbols (A) and (B) to indicate the two parts of the sentence
33
Posner, Liability of The Trustee Under the Corporate Indenture, 42 Harv.L.Rev. (1928) 198, 222
34
Ibid., 245. See also 37 Col.L.Rev. (1937) 130, 131-132
35
Posner, The Trustee and The Trust Indenture: A Further Study, 46 Yale L. J. 737, 783 (1937)
See also 36 Mich.L.Rev. (1938) 996, 999-1000; Seelig v. First National Bank, D.C., 20 F.Supp. 60, 68.
36
Ibid., 763
37
Sternberg v. Drainage Dist. No. 17, 8 Cir., 44 F.2d 560, 580
38
See, e. g., Corbin, 3 Contracts (1951) § 559
39
Including President & Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465, 478, discussed supra
40
See the Restatement of Trusts, Scott, and the Massachusetts cases cited supra
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322 So.2d 741 (1975)
Oliver CARTER, Jr.
v.
STATE.
6 Div. 894.
Court of Criminal Appeals of Alabama.
November 18, 1975.
*742 Charles H. Moses III, Birmingham, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Asst. Atty. Gen., Birmingham, for the State.
LEIGH M. CLARK, Supernumerary Circuit Judge.
This is an appeal from a conviction of rape and a sentence to the penitentiary for ten years.
According to the testimony of the alleged victim, she was awakened by an intruder in her apartment about 3:00 A.M., March 1, 1975. She was sleeping alone in a bed. The only other occupants of the apartment at the time were her two children of the ages of six and three years, who were sleeping in an adjoining room. She had been recently divorced. She went to bed the evening before at about nine or ten o'clock after she had put the children to bed. She left the window of their bedroom slightly cracked; she went to bed in the nude as was her custom; she was awakened by being poked with a sharp object, which she did not identify at the time but testified that it had the appearance of a letter opener. When she turned over and saw the intruder she observed that he had a handkerchief across the lower part of his face. There was conversation between them as to who else was in the apartment. The man climbed in bed with her and had intercourse with her; she did not resist. She was positive in her identification of defendant;[1] she had never seen him before. Promptly after he left through a door, she locked the doors and closed and locked the windows and checked the children, whom she found asleep. She then went into the bathroom, took a hot bath and went through a feminine cleansing process. She put on her clothes, bundled up her children, got in her car and went to a pay phone booth and called her ex-husband. There was no phone in her apartment. When her ex-husband arrived they took the children to her mother's home; then she and her ex-husband went to the police station and reported the incident to the police.
*743 Defendant did not testify, but members of his family testified to the effect that on the night of the alleged crime he went to bed at a place some four miles from the scene of the crime, approximately an hour prior to its commission, and that he had no means of transportation sufficient to place him there at the time the crime was committed.
Appellant does not contend that the failure of the woman to physically resist precluded a conviction. The rule has been stated time and again to the contrary. We apply here what was said in Rudolph v. State, 275 Ala. 115, 152 So.2d 662:
"The offense of rape is complete when the woman is made to yield through fear. Hooper v. State, 106 Ala. 41, 17 So. 679. The evidence in this case clearly supports a finding that the prosecutrix yielded to her assailant because of fear that her life was in danger. The evidence was not only sufficient to take the case to the jury on the charge of rape, but was amply sufficient to support the verdict of the jury."
Appellant's counsel, who was appointed to defend him on the trial and to represent him on appeal, in view of his indigency, has ably argued here as he contended there that "the circumstances of her divorce and . . . relationship with her former husband, which appeared to be close in view of her calling upon him immediately following the claimed rape" justified his efforts to explore and bring before the jury "the possible bad actual character for chastity of the prosecuting witness." The only cases relied upon by appellant are McQuirk v. State, 84 Ala. 435, 4 So. 775 (1888); Stone v. State, 243 Ala. 605, 11 So.2d 386 (1943); Brown v. State, 50 Ala.App. 471, 280 So.2d 177, cert. denied 291 Ala. 774, 280 So.2d 182 (1973). No support for the position of counsel for defendant-appellant is to be found in the cases cited, singly or collectively. All three recognize the principle that the general reputation of the prosecutrix for unchastity can be shown by defendant in a rape case. Such was not sought to be shown here. What was held in McQuirk and Stone is stated in McElroy, Law of Evidence in Alabama, § 32.01:
"Evidence of specific acts of unchastity by the prosecutrix with third person is not admissible as tending to prove her bad character for chastity. McQuirk v. State, 84 Ala. 435, 4 So. 775; Stone v. State, 243 Ala. 605, 11 So.2d 386."
In Brown v. State, supra, it was held that the trial court should have allowed testimony showing the general reputation of the prosecutrix for unchastity, but it was not held that defendant could inquire into the question of specific acts of intercourse with third persons. One reason for refusal to allow such an inquiry is stated in Stone v. State, supra, [2, 3] as follows:
" . . . The basis of such rule, we take it, is the same as in other cases, the unwisdom of opening the door to collateral issues tending rather to hinder than promote justice. . . ."
We can think of no type of case in which the reason for the rule could be more persuasive than in this case, in which commendable fidelity on the part of the prosecutrix to her ex-husband and on the part of him to her and on the part of both to their children was displayed.
In the closing argument of the State the following occurred:
"MR. TUCKER: She testified she did not willingly submit to this but that everything done there was because she was afraid for her own safety and the safety of her children.
"MR. MOSES: We object to that. There is no evidence of that in the testimony.
"THE COURT: Ladies and gentlemen, either lawyer can argue any inference of what they draw from the evidence. What they say in the case is not evidence. Ladies and gentlemen, you have listened to it, make up your own minds *744 what the evidence is; so I will overrule the objection with that admonition."
Appellant urges that the action of the trial court in this particular respect was erroneous. We do not agree. There was not involved any effort upon the part of counsel for the State to assert a fact not shown by the evidence. He had the right to argue "proper inferences from the evidence" and "to draw conclusions from the evidence based on his own reasoning." Adams v. State, 291 Ala. 224, 279 So.2d 488; McLaney v. Turner, 267 Ala. 588, 140 So.2d 315. The same principle, in essence, has been applied to numerous criminal cases, as well as civil cases, a few of which are: Braden v. State, 49 Ala.App. 97, 268 So.2d 877; Davis v. State, 49 Ala.App. 587, 274 So.2d 360, cert. denied 290 Ala. 364, 274 So.2d 363; Cazalas v. State, 43 Ala.App. 6, 178 So.2d 562, cert. denied 278 Ala. 708, 178 So.2d 565; Mitchell v. State, 52 Ala.App. 174, 290 So.2d 241. The statement we think, was so clearly an argumentative conclusion that was fully justified by testimony of the prosecutrix that the trial judge could well have overruled defendant's objection without admonition, but it was better for him to qualify his ruling as he did and admonish the jury accordingly. In this circumstance, justice was well served without the possibility of any prejudice to defendant.
In closing argument of the State, the record contains the following:
"MR. TUCKER: . . . but I think he has totally failed to prove to you she was a willing participant in the alleged rape"
The record does not contain any of the preceding context. To the quoted statement, defendant's counsel objected, stating:
"The burden of proof."
Whereupon the court stated:
"Sustained. Ladies and gentlemen, the burden of proof is not on the defendant. The burden of proof is on the State in this case, which I am going to get to in a few minutes."
Appellant's counsel here argues that the above quoted comment of State's counsel "had the effect of raising in the jury's mind the question of the failure of the defendant to take the stand in his own defense."
We do not know who was the antecedent of the pronoun "he," but we are not inclined to think that counsel for the State was personalizing defendant. In general such argumentclosing argumentshould be largely, if not exclusively, a reply to argument of counsel for defendant. We see little, if any, basis for the contention that it amounted to a comment on the failure of defendant to take the stand. Counsel for defendant evidently did not so consider it at the time the argument was made, and we cannot believe the jury was more discerning than he. The court sustained objection on the ground assigned by counsel, upholding counsel for defendant as to the particular position, and we fail to see that any injury to defendant resulted.
We have gone beyond the contentions made by appellant by searching the record for any unasserted error prejudicial to him and have found none.
The judgment of the trial court should be affirmed.
The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted by the Court. The judgment below is hereby
Affirmed.
All the Judges concur.
NOTES
[1] No light was on in the bedroom, but, according to the steadfast testimony of the victim, the light from the bathroom was sufficient for her to observe clearly distinguishing features of the intruder and to identify him as the defendant.
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675 S.W.2d 190 (1984)
Terri Lynn Erickson TORTORICH, Plaintiff-Appellant,
v.
David Charles ERICKSON, Jr., Defendant-Appellee.
Court of Appeals of Tennessee, Western Section, at Nashville.
May 4, 1984.
Application for Permission to Appeal Denied August 20, 1984.
*191 Carol L. Soloman and George J. Duzane, Nashville, for plaintiff-appellant.
Billie Jean Tune, Nashville, for defendant-appellee.
Application for Permission to Appeal Denied by Supreme Court August 20, 1984.
NEARN, Presiding Judge, Western Section.
This is a child custody dispute. The Trial Judge changed custody from the mother to the father and the mother appeals.
We first note that appellant's brief does not comply with Rule 27 T.R.A.P. The brief does not contain a statement of the issues presented for review as required by the Rule. Instead, under the heading of Argument there are posed general questions such as "Were the factors the Judge considered in his decision for a change of custody proper?" followed by an argument in favor of an affirmative response to the query. To answer such a query requires a degree of clairvoyance with which this Court is not possessed.
The only issue presented by this appeal and the only one we consider is whether the evidence supports the ruling of the Trial Judge that it was in the best interest of the minor child that custody be for now changed.
The minor child is a boy, approximately three years of age. In the divorce proceedings custody was awarded the mother, with visitation rights in the father. The parents have squabbled over the exercise of those rights since the divorce. Various proceedings, including those for contempt, have been filed or are pending. However, the proceeding now appealed from is the hearing on the father's petition for change of custody and we will confine this opinion to matters that bear on that issue, although the proof is liberally sprinkled, if not saturated, with evidence on other issues.
Sometime after the mother was awarded custody of the child, she moved to the state of Louisiana with a male friend to whom she is now married and living with in that state. The order of custody did not forbid the mother to leave the state, but did order her to notify the father if she did leave. She failed to notify the father and secreted herself and the child in Louisiana for several months. With the aid of detectives, the father located the child and by means of a writ of habeas corpus obtained physical custody of the child and returned to this state where the petition to change custody had been filed and where the mother appeared and defended the petition.
The proof shows that the mother loves her child, properly cares for his physical needs and is a good mother.
The husband did not attempt to show that she was a "bad" mother. However, the proof does show that while the father has not been in the past an exemplary citizen and probably in the past has not exercised the care and concern for the child that he should have, he has now or is now attempting to change his ways and accept his parental responsibilities.
The major factor relied upon by the father to show a change in circumstance is the home environment of the child in the state of Louisiana; specifically, the character of the mother's new husband. The mother testified that the stepfather was a self-employed "financial broker" who worked on a commission basis, but that she did not know his income. However, there is proof in the record that the new husband or stepfather is presently under indictment by the Federal authorities in the state of Louisiana for conspiracy to import marijuana. There is also testimony in the record that the stepfather has stated that he has Mafia connections and could place a "hit" contract on the father. The record further *192 shows that at the hearing of this petition for change of custody the stepfather was present in Davidson County where this matter was heard, but did not testify.
The remarriage of either parent does not of itself constitute a change of circumstance that would warrant a change of custody. However, the possible change in home environment caused by such remarriage is a factor to be considered in determining whether or not there has been a material change in circumstance that would warrant an alteration of custody arrangements. In Riddick v. Riddick, (1973 Tenn. App.W.S.) 497 S.W.2d 740, cert. denied, the Court observed
[t]he character, attitude and general personality of other persons who would be in a position to influence the children are important considerations for the court. Lacking a valid explanation for the absence of his [the new husband] testimony, we hold the petitioner under a duty to produce [the new husband], so that he might testify as to his willingness for the children to be in his home, and as to his occupation, finances, and other relevant facts. This element of proof cannot be negatively met by the showing of a lack of evidence that [the new husband] is not willing to have the children in his home. It is true the mother seeks the custody, but a court cannot overlook the situation in which that custody will place the children. 497 S.W.2d at 742.
We recognize the fact that in Riddick it was the mother who was the petitioner seeking a change in custody and she, therefore, had the burden of proof. Accordingly, the burden was upon her to show the circumstances into which the child would be brought if custody were changed. Her failure to carry that burden was the reason for the denial of her petition in Riddick. In this case, the burden was upon the father. We do not intend to intimate that in every case where a change of custody is sought, that a burden is on the defendant to show proper conditions exist for the defendant to have custody, for such would be presumed by virtue of the existing order of custody. However, where a change of custody is sought on the grounds of changed conditions in the living conditions of the child since the previous order and proof is adduced by the petitioner tending to show such change, just as in any other case it behooves a defendant to adduce evidence to rebut that of the plaintiff. We believe that the "important considerations" expressed in the Riddick case, as above set out, are valid elements to be considered by the trier of facts when the issue is properly presented by either party and the observations of the Riddick Court are applicable to this case.
After having reviewed all the evidence, this Court would not rest easy on the issue of the best interest of the child, which interest is our total concern, if we were to reverse the action of the Trial Judge and place the custody with the mother (with whom we find no fault in regard to maternal duties) in an unknown and possibly deleterious environment. Accordingly, we must affirm the action of the Trial Judge with costs of appeal adjudged against the mother.
Done at Nashville in the two hundred and eighth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.
TOMLIN and CRAWFORD, JJ., concur.
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Filed 10/16/14 P. v. Wu CA6
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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039303
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC814105)
v.
NAN WU,
Defendant and Appellant.
Defendant Nan Wu appeals from a judgment of conviction entered after she
pleaded no contest to two counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)).1 As
to the first count, she also admitted that she took property exceeding $200,000
(§ 12022.6, subd. (a)) and that probation would not be granted when the theft exceeded
$100,000 (§ 1203.045). The trial court sentenced defendant to five years and eight
months in county jail. The trial court also ordered defendant to pay $245,000 in
restitution to the victim.2 On appeal, defendant contends: (1) the trial court violated the
plea agreement when it held the restitution hearing after the sentencing hearing; (2) the
no-contact order violated defendant’s right to due process; and (3) there was insufficient
1
All further statutory references are to the Penal Code.
2
The trial court found that the victim’s total loss was $355,000, and defendant had
already paid $110,000 to her.
evidence of her ability to pay the presentence investigation report fee. The judgment is
reversed and remanded for the trial court to make a determination of defendant’s ability
to pay the presentence investigation report fee. The trial court is also directed to strike
the no-contact order.
I. Statement of Facts3
In December 2005, Winnie Liu agreed to invest in defendant’s company. Liu
wired $100,000 to defendant’s account the following month. Defendant gave Liu a
promissory note in which she agreed to repay the investment plus 40 percent interest by
June 6, 2006. In April 2006, defendant asked Liu for an additional $100,000 and verbally
promised to repay the investment within two or three weeks. Liu withdrew $100,000
from her home equity line of credit (HELOC) and gave defendant three cashier’s checks
totaling $100,000.
Between May 2 and May 30, 2006, defendant gave Liu six checks totaling
$232,620.88. Liu attempted several times to cash the checks, but she was unable to
obtain the funds.
On July 11, 2006, defendant called Liu and stated that she had deposited the funds
for the second payment of $100,000. A few hours later, she called Liu and told her that
the bookkeeper had made a mistake and deposited an extra $95,000 into Liu’s account.
Defendant asked Liu to give the $95,000 back to her by cashier’s check. After Liu
confirmed that two deposits totaling $195,000 were in her account, she made a cashier’s
check payable to defendant for $93,000 and deposited $2,000 in cash in defendant’s
account. However, defendant’s checks bounced and Liu’s account was overdrawn. On
July 20, 2006, defendant again deposited checks into Liu’s account, but they also
bounced. This pattern reoccurred six times, thereby ruining Liu’s HELOC account.
3
The statement of facts is taken from the probation report.
2
On September 28, 2006, defendant asked Liu to give her one last chance.
Defendant gave Liu a promissory note indicating that she would pay her $295,000 in
installments between October 4 and October 10, 2006. When Liu did not receive any
money from defendant by October 8, 2006, she filed a police report.
On April 15, 2008, an investigator for Wells Fargo Bank informed the police that
defendant made 10 deposits totaling $9,834.26 into her Wells Fargo account. Defendant
then withdrew the money from her account before the checks were returned unpaid for
insufficient funds. Wells Fargo Bank incurred a loss of $9,830.29.
II. Discussion
A. Plea Agreement
Defendant contends that the trial court violated the plea agreement when it held
the restitution hearing after the sentencing hearing. She further contends that this
violation denied her due process and the appropriate remedy is specific enforcement of
the plea agreement.
1. Background
At the plea hearing on June 29, 2012, the trial court stated: “ . . . the resolution of
your case is as follows: You will plead to both counts of the Information. Count 1 is a
felony charge of grand theft, and there’s an allegation that the amount of the theft exceeds
$100,000, and also count 2, which is a felony charge of grand theft. [¶] In exchange for
your pleas and admissions, there will be no promise regarding the sentence, but we’re
going to have a restitution hearing which will probably take place sometime in
September. And at that time, the Court will determine what the restitution is and, also,
after that, we’ll determine what the sentence is going to be. [¶] Do you understand the
resolution of the case?” Defendant responded, “Yes.”
The trial court later asked appellant whether she admitted the allegation that she
had taken property with a value exceeding $200,000 as well as the allegation that she had
3
taken property with a value exceeding $100,000. Defense counsel then stated that
“there’s an ambiguity about how much is owed and that’s the reason we’re going to have
a restitution hearing. Can that be reserved?” The prosecutor stated, “I would like to have
the 12022.6 allegation be admitted.” 4 The prosecutor acknowledged that defendant had
paid some restitution to Liu, but that payment did not change the fact that Liu had lost
money due to defendant’s conduct. The trial court responded, “So admitting it, and if the
Court determines that it’s less than . . . 200,000,” “then I would strike -- I would entertain
a motion to strike [the] admission.” Defense counsel responded, “That’s reasonable.”
The trial court then stated: “All right. Ms. Wu, what we’re going to do is, as I
understand it, is that you will admit these two allegations, and then when the Court does
the restitution hearing, if the amount of the restitution as determined by the Court is less
than one or both of these allegations, then the People would not be objecting to a
dismissal of the -- or striking of the admission to the allegation.” Defendant stated that
she understood and admitted the allegations that she took property exceeding $200,000
(§ 12022.6, subd. (a)) and that probation would not be granted when the theft exceeded
$100,000 (§ 1203.045).5 After taking the plea, the trial court set the matter for a
restitution hearing. The trial court also advised defendant, “Now, ordinarily, if the Court
4
Section 12022.6, subdivision (a) provides in relevant part: “(a) When any person
takes . . . property in the commission . . . of a felony, with the intent to cause that
taking, . . . the court shall impose an additional term as follows: [¶] . . . [¶] (2) If the loss
exceeds two hundred thousand dollars ($200,000), the court, in addition and consecutive
to the punishment prescribed for the felony . . . of which the defendant has been
convicted, shall impose an additional term of two years.”
5
Section 1203.045, subdivision (a) provides: “Except in unusual cases where the
interests of justice would best be served if the person is granted probation, probation shall
not be granted to any person convicted of a crime of theft of an amount exceeding one
hundred thousand dollars ($100,000).”
4
doesn’t go along with the plea bargain agreement, then you would have the right to take
back your plea.”
After several continuances, the restitution and sentencing hearing was scheduled
for December 7, 2012. At that time, defense counsel requested another continuance and
stated: “Judge, I have been in a trial -- two trials, actually. I started the first case October
15th. That case completed, I believe it was end of October. Then I had one week off and
I’m currently engaged in a homicide case in Judge Northway’s court. The testimony just
started December 3rd. I’ve been working very hard on that case. It’s a double homicide
case. I’m not ready to proceed today with the restitution hearing. The reason is I have
not prepared. I’ve not had sufficient time to prepare. [¶] It was my understanding when
Ms. Wu entered the plea in this case that there would be a restitution hearing prior to
sentencing. I’m not prepared to proceed with the restitution hearing due to the
complexity of the case and numerous financial transactions that occurred. [¶] For this
reason, I’m requesting a date in January when I can be adequately prepared, sometime
after the 14th of January.”
In response, the prosecutor stated: “The People do object to -- yet again, to any
request for continuance. As the Court is well aware, we have been trying to have this
case moved through our system for a very long time now. [¶] I actually had my staff run
the CJIC calendar dates, if you will, of how long this case -- to see how long this case has
been on the Master Trial Calendar. We’ve been on the Master Trial Calendar since
October of 2009. [¶] And, again, as the Court is well aware, [defense counsel] and I
have had substantial discussions and numerous discussions to try and reach . . . resolution
of restitution. There have been many discussions between myself and [defense counsel]
about having the defendant at least show a good faith effort and start to accumulate some
funds for restitution. That’s been going on for several years now, and the only amount of
restitution that’s ever been recovered for the victim, Winnie Liu, in this case, is the
$95,000 that was paid to the Court for purposes of restitution, I believe, back in 2008.”
5
Defense counsel responded, “As I’ve already indicated, I’m not ready to proceed with the
restitution hearing today. And the Court can do whatever Your Honor wishes, but I
would still like to have this matter come back at a later date for restitution hearing.”
The trial court denied the request to continue sentencing and explained, “This plea
was entered after many, many months of discussions, and trying to work on and evaluate
claims of restitution and past payments and various things, and the plea was entered in
June, so I think it’s time for sentencing.” However, the trial court agreed to continue the
restitution hearing.
When the trial court asked whether there was any legal cause why sentence should
not be imposed, defendant counsel stated, “Only the legal cause that I’ve indicated, which
is that when the plea was taken, it was my understanding, and I think Ms. Wu’s
understanding too, that restitution hearing would proceed at the sentencing hearing.”
Defendant was then sentenced to five years and eight months in county jail.
2. Analysis
“A negotiated plea agreement is a form of contract, and it is interpreted according
to general contract principles. [Citations.] ‘The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties. [Citation.] If
contractual language is clear and explicit, it governs. [Citation.]’ ” (People v. Shelton
(2006) 37 Cal.4th 759, 767.)
Due process principles require that the negotiations of a plea agreement and “the
adjudicative element inherent in accepting a plea of guilty, must be attended by
safeguards to insure the defendant what is reasonably due in the circumstances. Those
circumstances will vary, but a constant factor is that when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.” (Santobello v. New York
(1971) 404 U.S. 257, 262.)
6
Here, the terms of the plea agreement were: defendant would plead to two counts
of grand theft and admit the allegations that the amount exceeded $200,000 (§ 12022.6,
subd. (a)), and that probation would not be granted if the amount exceeded $100,000
(§ 1203.045); a restitution hearing would be held at a later date followed by a sentencing
hearing; and in the event that the amount of restitution was less than the amounts
specified in the allegations, the prosecutor would not object to the trial court striking the
allegations for sentencing purposes. In our view, though the restitution hearing was held
after the sentencing hearing, defendant was not deprived of due process. Defendant was
induced to admit the allegations in exchange for the prosecutor’s promises that
defendant’s sentence would not be enhanced by two years if the amount taken did not
exceed $200,000, and that defendant would be eligible for probation if the amount taken
did not exceed $100,000. A restitution hearing was held and the trial court determined
that defendant took $355,000 from the victim. Defendant does not challenge the trial
court’s finding regarding the amount of restitution. Moreover, if the trial court had found
that the amount taken from the victim was less than $200,000 or $100,000, it could have
recalled the sentence on its own motion within 120 days. (Former § 1170, subd. (d).)
Thus, the timing of the restitution hearing was not a material factor in inducing defendant
to admit the allegations pursuant to sections 12022.6, subdivision (a) and 1203.045.
Accordingly, we reject defendant’s contention.
B. No-Contact Order
Defendant next contends, and the Attorney General concedes, that the no-contact
order must be stricken because it was not authorized by any statute. We agree.
At the sentencing hearing, the trial court stated: “You’re not to have any contact
with the victim in this matter, and that means no direct or indirect contact, so that means
no face-to-face conversation, no letters, no telephone calls. You cannot have someone
contact the victim on your behalf. You cannot text or use any kind of electronic means of
7
communication. I’m not going to try and list them all because there are too many and
they keep changing, but any kind of communication with the victim that you can
conceive of is prohibited.” Defendant did not object.
A defendant’s claim that a no-contact order is unauthorized by may be made for
the first time on appeal. (People v. Robertson (2012) 208 Cal.App.4th 965, 995
(Robertson).) “ ‘Although the cases are varied, a sentence is generally “unauthorized”
where it could not lawfully be imposed under any circumstance in the particular case.’ ”
(Id. at pp. 995-996, quoting People v. Scott (1994) 9 Cal.4th 331, 354.)
Various statutes authorize the issuance of no-contact orders, but none of these
statutes applies in the present case. Pursuant to former section 136.2, subdivision (a), a
court could have issued a protective order “ ‘upon a good cause belief that harm to, or
intimidation of a victim or witness has occurred or is reasonably likely to occur.’ Orders
made under that statute, however, are ‘operative only during the pendency of criminal
proceedings and as prejudgment orders.’ [Citations.]” (People v. Scott (2012) 203
Cal.App.4th 1303, 1325.) Thus, here, section 136.2 did not provide authority for a
no-contact order after judgment was entered. Section 1203.1, subdivision (j) authorizes
no-contact orders in grand theft cases when the defendant is placed on probation.
(People v. Petty (2013) 213 Cal.App.4th 1410, 1423-1424.) Here, however, defendant
was sentenced to five years and eight months in county jail. Section 1201.3, subdivision
(a) authorizes issuance of a no-contact order for a period of up to 10 years when the
defendant is convicted of a sexual offense involving a minor. (Robertson, supra, 208
Cal.App.4th at p. 996.) Defendant was not convicted of a sexual offense. Sections
1203.097, subdivision (a)(2) and former 273.5, subdivision (i) authorized trial courts to
issue no-contact orders only in domestic violence cases. Here, defendant was not
convicted of domestic violence. Section 1202.05 “authorizes courts to prohibit visitation
between a defendant sentenced to state prison and the child victim” of certain enumerated
offenses. (People v. Gerber (2011) 196 Cal.App.4th 368, 391.) No such offenses are
8
involved in the present case and the victim is not a child. Since there was no statutory
authority for the issuance of the no-contact order, it must be stricken.
C. Presentence Investigation Report Fee
Defendant also contends: the trial court failed to follow the procedural safeguards
of section 1203.1b to determine her ability to pay the fee for the presentence investigation
report; and there was insufficient evidence to support a finding that she had the ability to
pay this fee.
According to the probation report, defendant was born in 1964 in China. She
obtained a Ph.D. in electrical engineering from Stanford University in 1991. In 1992, she
founded her own company and received a salary of $200,000 to $500,000 per year. In
1997, defendant was arrested and sentenced to prison. After her release in 1998, she
became a self-employed information technology consultant and earned approximately
$100,000 per year. Defendant indicated that she intended to continue working as an
information technology consultant after serving her sentence in the present case. The
probation officer recommended, among other things, that the trial court impose various
fines and fees, including a presentence investigation report fee not to exceed $400 under
section 1203.1b.
At the sentencing hearing in December 2012, the trial court ordered defendant to
pay: a presentence investigation fee of $400; a restitution fine of $2,000 (§ 1202.4); a
$10 fine with a $28.50 penalty assessment; a $60 court security fee; a $60 criminal
conviction assessment; and a $129.75 criminal justice fee. Payment of attorney’s fee was
waived.6 Defendant did not object to imposition of the presentence investigation report
fee.
6
In April 2012, Berndt Brauer, defendant’s retained counsel, brought a motion to
withdraw as attorney of record, because defendant was unable to raise funds to pay
(continued)
9
Section 1203.1b provides in relevant part: “(a) In any case in which a defendant is
convicted of an offense and is the subject of any . . . presentence investigation and report,
whether or not probation supervision is ordered by the court, . . . the probation
officer, . . . taking into account any amount that the defendant is ordered to pay in fines,
assessments, and restitution, shall make a determination of the ability of the defendant to
pay all or a portion of the reasonable cost of . . . conducting any presentence investigation
and preparing any presentence report . . . . The probation officer . . . shall determine the
amount of payment and the manner in which the payments shall be made to the county,
based upon the defendant’s ability to pay.” After determining the amount, the probation
officer is required to inform the defendant that he or she has the right to contest the
amount at a hearing, which includes the right to counsel. (Ibid.) Moreover, “[t]he
defendant must waive the right to a determination by the court of his or her ability to pay
and the payment amount by a knowing and intelligent waiver.” (Ibid.) If the defendant
does not waive the right to a hearing, “the probation officer shall refer the matter to the
court for the scheduling of a hearing to determine the amount of payment and the manner
in which the payments shall be made.” (§ 1203.1b, subd. (b).)
Subdivision (e) of section 1203.1b provides: “The term ‘ability to pay’ means the
overall capability of the defendant to reimburse the costs, or a portion of the costs, of
conducting the presentence investigation, preparing the . . . presentence report, . . . and
shall include, but shall not be limited to, the defendant’s: [¶] (1) Present financial
position. [¶] (2) Reasonably discernible future financial position. In no event shall the
court consider a period of more than one year from the date of the hearing for purposes of
determining reasonably discernible future financial position. [¶] (3) Likelihood that the
defendant shall be able to obtain employment within the one-year period from the date of
counsel. The trial court denied the motion because the case was ready for trial, but
appointed Brauer to continue to represent defendant.
10
the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant’s
financial capability to reimburse the county for the costs.”
We first consider the issue of forfeiture. In People v. Povio (2014) 227
Cal.App.4th 1424 (Povio), the defendant challenged the imposition of a probation
supervision fee under section 1203.1b. (Povio, at p. 1429.) He argued that the trial court
failed to determine his ability to pay the monthly fee and that there was no evidence to
support an implied ability-to-pay finding. (Ibid.) As in the present case, the Attorney
General relied on People v. McCullough (2013) 56 Cal.4th 5897 and contended that the
defendant’s failure to object to the imposition of the fee forfeited the issue. (Povio, at
p. 1429..) This court held that the issue had not been forfeited. (Ibid.)
Povio reasoned: “In McCullough, the California Supreme Court held that a
defendant who fails to challenge the sufficiency of the evidence of his ability to pay a
booking fee at the time it is imposed forfeits his or her right to challenge the fee on
appeal. [Citation.] . . . [¶] In reaching its conclusion as to booking fees, the McCullough
court distinguished the booking fee statute before it from other fee statutes, including the
statute governing the imposition of probation supervision fees, Penal Code section
1203.1b. [Citation.] The McCullough court noted that, in contrast to the booking fees
statute, these statutes ‘provide procedural requirements or guidelines for the ability-to-
pay determination.’ [Citation.] McCullough concluded that the lack of any procedural
safeguards or guidelines for the imposition of a booking fee indicated ‘that the
Legislature considers the financial burden of the booking fee to be de minimis,’ making
‘the rationale for forfeiture . . . particularly strong.’ [Citation.] [¶] As the McCullough
7
The California Supreme Court is currently considering whether the failure to
object to an order for payment of probation supervision fees under section 1203.1b
forfeits the contention that the trial court erred when it failed to make a finding of the
defendant’s ability to pay the fees. (People v. Aguilar (2013) 219 Cal.App.4th 1094,
review granted Nov. 26, 2013, S213571; People v. Trujillo, review granted Nov. 26,
2013, S213687 [nonpub. opn.].)
11
court acknowledged, Penal Code section 1203.1b does impose guidelines that must be
followed before the trial court may impose a probation supervision fee. . . . Under the
reasoning of McCullough, these procedural safeguards indicate that the Legislature does
not consider the financial burden of the probation supervision fee to be de minimis and
counsel against forfeiture. Accordingly, we conclude Povio’s sufficiency of the evidence
argument as to the probation supervision fee is not forfeited under McCullough.” (Povio,
supra, 227 Cal.App.4th at p. 1429.) This court remanded the matter for the trial court to
determine, among other things, the defendant’s ability to pay the probation supervision
fee under section 1203.1b. (Povio, at p. 1429.) For the same reasons, we conclude that
defendant has not forfeited her challenge to the sufficiency of the evidence in the present
case.
The Attorney General argues that the record contains substantial evidence of
defendant’s ability to pay. She cites to defendant’s annual income of approximately
$100,000 after her release from prison in 1998. However, the record also establishes that
the trial court did not consider the amount of defendant’s restitution to the victim,
because the restitution hearing was held two months after the fee was imposed. Given
the substantial amount of restitution involved, the matter must be remanded for a
determination of defendant’s ability to pay the presentence investigation report fee.
III. Disposition
The judgment is reversed and remanded for a determination of defendant’s ability
to pay the presentence investigation report fee. We further direct the trial court to strike
the no-contact order.
12
_______________________________
Mihara, J.
WE CONCUR:
______________________________
Premo, Acting P. J.
______________________________
Elia, J.
13
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2167
_____________
In re: REVSTONE INDUSTRIES LLC, et al., Debtors
Ascalon Enterprises LLC,
Appellant
_____________
On Appeal from the United States District Court
for the District of Delaware
District Court No. 1-15-cv-00347
District Judge: The Honorable Sue L. Robinson
Argued March 22, 2017
Before: SMITH, Chief Judge, JORDAN and ROTH, Circuit Judges
(Filed: June 6, 2017)
Sheldon S. Toll [ARGUED]
Suite 100
29580 Northwestern Highway
Southfield, MI 48034
Counsel for Appellant
Laura D. Jones
James E. O’Neill, III
Colin R. Robinson
Pachulski Stang Ziehl & Jones
919 North Market Street
P.O. Box 8705, 17th Floor
Wilmington, DE 19801
Alan J. Kornfeld [ARGUED]
Pachulski Stang Ziehl & Jones
10100 Santa Monica Boulevard
13th Floor
Los Angeles, CA 90067
Counsel for Appellee
_____________________
OPINION*
_____________________
SMITH, Chief Judge.
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
2
In this bankruptcy case, the debtors, Revstone Industries, LLC (“Revstone”)
and associated entities, proposed a Chapter 11 plan approved by almost all
creditors. The plan provides for the eventual “sale of all or substantially all of the
property of the estate.” 11 U.S.C. § 1123(b)(4); see In re PPI Enterprises (U.S.),
Inc., 324 F.3d 197, 211 (3d Cir. 2003) (“[A] debtor may develop a Chapter 11 plan
to sell off all of its assets.”). Ascalon Enterprises, LLC (“Ascalon”), Revstone’s
sole member and a non-creditor, filed a limited objection to the plan. According to
Ascalon, Revstone is not entitled to discharge certain debts, as provided in Article
X of the plan, because Revstone would “not engage in business after
consummation of the plan.” 11 U.S.C. § 1141(d)(3)(B). The Bankruptcy Court
disagreed. It concluded that Revstone is entitled to discharge because, after
emerging from bankruptcy, Revstone will continue to operate its business in
substantially the same manner as it did before filing for bankruptcy. [A516] The
Bankruptcy Court approved the plan over Ascalon’s objection, and Ascalon timely
appealed. The District Court affirmed, and Ascalon timely appealed again.1
We conclude that Ascalon lacks standing to appeal. We will affirm on that
alternative ground. See, e.g., Oss Nokalva, Inc. v. European Space Agency, 617
1
The Bankruptcy Court had jurisdiction pursuant to 28 U.S.C. §§ 157 and
1334. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 158(a) and
1334. We have jurisdiction pursuant to 28 U.S.C. §§ 158(d)(1) and 1291.
3
F.3d 756, 761 (3d Cir. 2010) (“[We] may affirm a judgment on any ground
apparent from the record, even if the district court did not reach it.” (citation
omitted)).
APPELLATE BANKRUPTCY STANDING
Appellate standing in bankruptcy is limited to “persons aggrieved” by an
order of the bankruptcy court. In re Combustion Eng’g, Inc., 391 F.3d 190, 214 (3d
Cir. 2004) (citation omitted). The persons-aggrieved test “now exists as a
prudential standing requirement that limits bankruptcy appeals to persons ‘whose
rights or interests are directly and adversely affected pecuniarily by an order or
decree of the bankruptcy court.’” Id. (further quotation marks omitted) (quoting In
re Dykes, 10 F.3d 184, 187 (3d Cir. 1993)). To be a person aggrieved, a party must
challenge an order that “diminishes their property, increases their burdens, or
impairs their rights.” Id. (quoting In re PWS Holding Corp., 228 F.3d 224, 249 (3d
Cir. 2000)).
This standard is “more restrictive than Article III standing.” Id. at 215.
Appellate bankruptcy standing, unlike Article III standing, must be based strictly
on financial injury. Id. Furthermore, this Court has denied standing to parties
“who, even though they may be exposed to some potential harm incident to the
bankruptcy court’s order, are not directly affected by that order.” Id. (internal
quotation marks omitted) (quoting Travelers Ins. Co. v. H.K. Porter Co., 45 F.3d
4
737, 741 (3d Cir. 1995)). These requirements are rooted in the “‘particularly acute’
need to limit appeals in bankruptcy proceedings, which often involve a ‘myriad of
parties . . . indirectly affected by every bankruptcy court order[.]’” Id. (alterations
in original) (quoting Travelers, 45 F.3d at 741).
ASCALON’S STANDING ARGUMENT
In its reply brief, Ascalon argues that it has standing based on the tax
consequences of discharging certain liabilities under the plan. According to
Ascalon, it designated Revstone as an S corporation, and thus any tax liability
would pass from Revstone to Ascalon. Ascalon claims that Revstone incurred
millions of dollars in unpaid federal and state taxes arising from asset sales during
bankruptcy. Subsequently, Ascalon elected to revoke Revstone’s pass-through
status, ending Ascalon’s liability for Revstone’s tax obligations. See I.R.C.
§ 1362(d); In re Majestic Star Casino, LLC, 716 F.3d 736 (3d Cir. 2013)
(discussing the revocation of a debtor’s pass-through status). According to
Ascalon, Revstone stated in open court that it intends to have Ascalon’s tax
election set aside.
Against that backdrop, Ascalon argues that it “is justly apprehensive that, if
Revstone discharges its tax liability, the taxing authorities might seek to impose
liability on Ascalon, despite the election it made.” Reply Br. 1–2.
5
APPLICATION
Ascalon’s argument does not establish standing because it is waived, and in
any event, fails to allege a sufficiently direct financial interest in the litigation.2
Ascalon’s explanation for its own standing has shifted throughout this
litigation. In the District Court, Ascalon argued that it has standing as a creditor
because it submitted a claim that the Bankruptcy Court disallowed without
prejudice. Ascalon has now abandoned that argument3 and raises the taxation issue
for the first time on this second-level appeal. “[A]rguments not squarely put before
the district court are waived on appeal.” Issa v. Sch. Dist. of Lancaster, 847 F.3d
121, 139 n.8 (3d Cir. 2017) (citing P.R.B.A. Corp. v. HMS Host Toll Roads, Inc.,
2
The District Court declined to address standing, “[g]iven the lack of timely
objection or cross-appeal.” In re Revstone Indus., LLC, No. 15-347, 2016 WL
1271462, at *2 (D. Del. Mar. 30, 2016). We disagree with that analysis.
Our sister circuits are divided on whether a party may waive a defense based
on prudential standing. See Lewis v. Alexander, 685 F.3d 325, 340 n.14 (3d Cir.
2012). We need not decide that issue because Revstone timely preserved its
standing objection at every stage of the proceeding. Nor was Revstone required to
take a cross-appeal. As the prevailing party in the Bankruptcy Court, it was not
“aggrieved,” and thus lacked standing to file a separate appeal. See Deposit Guar.
Nat’l Bank, v. Roper, 445 U.S. 326, 333 (1980); Nanavati v. Burdette Tomlin
Mem’l Hosp., 857 F.2d 96, 102 (3d Cir. 1988); see also Smith v. Johnson &
Johnson, 593 F.3d 280, 283 n.2 (3d Cir. 2010) (“Yet a party, without taking a
cross-appeal, may urge in support of an order from which an appeal has been taken
any matter appearing in the record, at least if the party relied on it in the district
court.”).
3
Ascalon re-raised this issue at oral argument, despite excluding it from its
briefing. Because the argument was not presented in any of Ascalon’s briefs, it is
waived. See Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 230 n.17
(3d Cir. 2016).
6
808 F.3d 221, 224 n.1 (3d Cir. 2015)); cf. Nichols v. City of Rehoboth Beach, 836
F.3d 275, 282 n.1 (3d Cir. 2016) (holding that the plaintiff waived an argument in
favor of standing). Furthermore, Ascalon’s standing argument is articulated for the
first time in its reply brief, and does not explain Ascalon’s injury beyond the single
sentence quoted above. See Prometheus Radio Project v. FCC, 824 F.3d 33, 53 (3d
Cir. 2016) (arguments raised for the first time in a reply brief are waived on
appeal); John Wyeth & Brother Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6
(3d Cir. 1997) (“[A]rguments raised in passing . . . , but not squarely argued, are
considered waived.”).
Regardless, Ascalon’s “apprehensi[on]” about what the taxing authorities
“might” do, Reply Br. 1–2, is not sufficiently direct to establish appellate
bankruptcy standing. Any consequences flowing from Revstone reverting to a
pass-through entity are “too contingent” to establish standing. Travelers, 45 F.3d at
742; see id. at 742–44 (rejecting appellate standing where the claimed injury was
based on future litigation). But more fundamentally, Ascalon has failed to provide
any support for the proposition that the Bankruptcy Court’s discharge injunction
permits the relevant authorities to assess Ascalon for Revstone’s tax liability, let
alone demonstrate a “direct[] or immediate[]” danger that a taxing authority will do
so. Id. at 742.
7
At oral argument, Ascalon acknowledged that it may fail the persons-
aggrieved test but argued for the first time that that we should abandon that
standard. That argument is also waived. In any event, the persons-aggrieved test is
well established in our precedents, which we are bound to follow. IOP 9.1.
CONCLUSION
Because Ascalon failed to carry its burden to establish appellate standing,
we will affirm.
8
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610 S.E.2d 143 (2005)
271 Ga. App. 509
STEPHENS
v.
The STATE.
No. A04A1628.
Court of Appeals of Georgia.
February 4, 2005.
James G. Maddox, Jeffersonville, for Appellant.
Ralph Walke, District Attorney, Terry F. Holland, Assistant District Attorney, for Appellee.
RUFFIN, Chief Judge.
Following a bench trial, the trial court found James Lee Stephens guilty of making terroristic threats. Stephens appeals, challenging the sufficiency of the evidence. For reasons that follow, we reverse.
The standard of review for an appeal from a criminal bench trial requires us to view the evidence in a light most favorable to support the trial court's judgment.[1] We determine evidence sufficiency and do not weigh the evidence or determine witness credibility.[2] So viewed, the evidence shows that Stephens worked as a housekeeper at the Carl Vinson VA Medical Center. Phyllis Tanner and Ronnie Skipper were his supervisors, and both had "problems" with Stephens at work. Tanner had "counseled" Stephens about not finishing his work on one occasion. She had also issued Stephens a letter indicating that he was abusing his sick leave. Stephens, however, refused to come to Tanner's office to discuss his problems at work.
Although Stephens would not communicate with Tanner, he told Skipper that he was depressed, that he wanted to transfer to another service area, and that he "wanted to take a gun and kill[ ] his supervisor." Stephens also told Skipper that he could not talk to Tanner because she made him mad and he felt like he would harm her. Skipper told Stephens to put in writing why he wanted to transfer to another service.
Shortly thereafter, Stephens wrote a letter and gave it to Skipper. The letter was addressed to Human Resources Service Line and stated: "I, James Stephens, request accommodation to another service because I am depressed. I feel like taking a gun and killing my supervisor." The letter made Skipper "uneasy" and he felt, upon actually seeing it in writing, that Stephens had threatened Tanner. Skipper told Stephens that he would deliver the letter to "human resources."
*144 Skipper also gave a copy of the letter to Tanner. The letter frightened Tanner. Skipper also told Tanner that Stephens would not come to her office because he was afraid he would do something he might regret. Based on this evidence, Stephens was convicted of making terroristic threats against Tanner.
On appeal, Stephens asserts that the letter was not addressed to Tanner, that he did not intend for Tanner to view the letter, and that he never directed Skipper to deliver the letter to Tanner. He further claims that he wrote the letter "only for the purpose of obtaining a change of employment status." Accordingly, he argues that the evidence was insufficient to prove a conviction under OCGA § 16-11-37.
We agree.
A person commits the crime of making a terroristic threat when he threatens to commit any crime of violence ... with the purpose of terrorizing another. The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize. That the message was not directly communicated to the victim [does] not alone preclude a conviction where the threat is submitted in such a way as to support the inference that the speaker intended or expected it to be conveyed to the victim.[3]
Here, Stephens, at the direction of Skipper, simply put in writing his reason for wanting a transfer. Stephens did not ask Skipper to communicate the reason to Tanner, nor is there any evidence to support an inference that Stephens intended or expected the reason to be communicated to her.[4] On the contrary, the record reflects that Stephens went out of his way to avoid contact or communication with Tanner in light of his feelings toward her. Simply put, the State presented insufficient evidence that Stephens wrote the letter for the purpose of terrorizing Tanner. Accordingly, we must reverse his conviction.
Judgment reversed.
ADAMS and BERNES, JJ., concur.
NOTES
[1] See Williams v. State, 228 Ga.App. 698, 699(1), 492 S.E.2d 708 (1997).
[2] See id.
[3] (Footnotes omitted; emphasis in original.) Armour v. State, 265 Ga.App. 569, 571(1), 594 S.E.2d 765 (2004).
[4] See id.
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549 F.Supp. 475 (1982)
UNITED STATES of America
v.
Victor POSNER and William Scharrer, Defendants.
No. 82 CRIM 0325 (LBS).
United States District Court, S.D. New York.
June 28, 1982.
*476 John S. Martin, Jr., U.S. Atty., S.D. New York, New York City, for plaintiff; K. Chris Todd, Asst. U.S. Atty., New York City, of counsel.
Williams & Connolly, Edward Bennett Williams, Washington, D.C., for defendant Victor Posner.
Culverhouse, Tomlinson, Mills and Cone, Hugh F. Culverhouse, Jr., Miami, Fla., for defendant William Scharrer.
OPINION
SAND, District Judge.
Defendants Victor Posner and William Scharrer have moved jointly for a transfer of this case to the Southern District of Florida pursuant to F.R.Cr.P. 21(b). For the reasons set forth herein, the motion is granted.
THE INDICTMENT
The defendants are charged in a 12 count indictment with inter alia conspiring to falsify defendant Posner's personal income tax returns and to evade over $1,200,000 in federal taxes between 1976 and 1979.
The indictment charges that Mr. Posner made two charitable contributions of land located in Miami, Florida, to a Florida tax exempt charitable organization, the Miami Christian College.
Mr. Scharrer is said to be the President and the majority shareholder of a Miami real estate brokerage firm and the indictment alleges that Mr. Scharrer twice provided an overstated appraisal of the fair market value of the lands donated by Mr. Posner to the college, and that Mr. Posner utilized these appraisals in claiming deductions on his individual tax returns for 1975 and 1978. With respect to the first transaction which allegedly took place in 1975, a 16 acre parcel was donated, claimed to have a total value of $2,000,000, when in fact, the indictment alleges, the defendants knew the land had a maximum value of only $640,000. Three years later, the indictment alleges, this procedure was repeated with respect to another parcel of six acres, also owned by Posner, and also donated to Miami Christian College, which Scharrer appraised at $1,050,000. Posner claimed a charitable deduction in that amount, although allegedly both defendants knew the six acres had a fair market value of not more than $360,000.
The sole nexus with New York and the jurisdictional predicate for the return of the indictment in this district, is that in each year, the allegedly false tax returns were prepared by Posner's accountant in New York City.[1]
*477 APPLICABLE LEGAL PRINCIPLES
F.R.Cr.P. 21(b) provides that:
"For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district."
Judge Weinfeld has observed, in language often cited with approval (see, e.g., United States v. Griesa, 481 F.2d 276, 286 (2d Cir.1973) (Timbers, J., concurring in part and dissenting in part)), that:
"As a general rule a criminal prosecution should be retained in the original district. To warrant a transfer from the district where an indictment was properly returned it should appear that a trial there would be so unduly burdensome that fairness requires the transfer to another district of proper venue where a trial would be less burdensome...." United States v. United States Steel Corporation, 233 F.Supp. 154, 157 (S.D.N.Y.1964).
But, although transfer motions are not favored, as Judge Weinfeld's decision granting transfer in United States v. Alter, 81 F.R.D. 524 (S.D.N.Y.1979) indicates, and as the Rule itself dictates, there are circumstances where transfer is appropriate. The determination of whether a particular case calls for transfer depends upon the peculiar facts and circumstances of that case. Accordingly, we can consider seriatim the factors enumerated by the Supreme Court in Platt v. Minnesota Mining Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964) relevant to this determination: 1. the location of the defendants, 2. the location of possible witnesses, 3. the location of events in issue, 4. the location of documents and records, 5. the disruption of defendant's business, 6. expense to the parties, 7. location of counsel, 8. relative accessibility of place of trial, 9. docket condition of each district, and 10. "any other special elements which might affect the transfer."
FACTORS AFFECTING TRANSFER
1. Location of the defendants.
Both defendants reside in Miami a factor favoring transfer to the Southern District of Florida.
2. Location of witnesses.
Most of the witnesses reside in Miami. Indeed, it would appear that the only New York based witness would be the accountant who prepared the tax returns based on information furnished by the defendants from Florida.
Defendants assert that:
"Other than the defendants themselves, it can be predicted that the trial witnesses will include the following Miami area residents: the principals of the Miami real estate development firm that purchased the land from Mr. Posner in 1974; the President, Board members, and legal counsel of Miami Christian College; Mr. Leonard Bisz; those persons who attended the various meetings that transpired preliminary to the land sales and contributions; the recent purchasers of the land in question; a number of experts who will testify about the value of the land at issue; Dade County zoning officials and experts on local zoning law; real estate brokers and prospective buyers involved in offerings of the subject land in 1974 and 1975 and in 1977; and of course, most of the character witnesses for the defendants." Defendants' Memorandum, p. 9.
The defendant Scharrer places particular stress on his desire to call certain local (i.e., Miami-based) elected officials (whom his counsel identified at oral argument) as character witnesses and the special problems which Scharrer would face in inducing *478 such busy officials to travel to New York to testify as character witnesses on his behalf.
The factor of location of witnesses strongly favors transfer.
3. The location of events in issue.
The location of events in issue is a consideration which favors transfer. Counsel for Posner asserts that all of the operative events in the case took place within a ten mile radius of the Miami courthouse.
Defendants urge the Court "to recognize that a Florida jury will be better able to judge the reasonableness of Mr. Posner's deductions than a New York jury simply because they will have a greater awareness of the historical sales trends and patterns of development in the locale in question." Defendants' Memorandum, p. 10.
We have some difficulty in accepting the concept of a jury deciding a case based on its own personal knowledge rather than the evidence in the record a notion which calls to mind the ancient English common law practice of choosing jurors because of their familiarity with the facts at issue at the trial. Photographs, maps and expert testimony can more accurately and properly deal with these issues, rather than a juror's preconception of land value.
Defendants assert, however, "it is entirely possible that the defendants will request the opportunity to have the jury view the land for themselves." Defendants' Memorandum, p. 11. A view, while usual in civil condemnation cases, is less common in criminal cases and the grant of a request for a view rests in the sound discretion of the trial judge.
The Government's objection that a view by the jury would be inappropriate because the issue in the case is only the value of the land between the years 1975 and 1978 is somewhat diluted by virtue of the fact that the land was then and is now (we were advised at oral argument) unimproved real estate, which of course has not changed in the interim, although the surrounding neighborhood may have undergone considerable change.
Although whether the defendants will request a view and if requested, whether the court would grant a view, are both conjectural, what is, of course, a certainty is that this option will be foreclosed unless the motion to transfer is granted. The factor of location of events favors transfer.
4. The location of documents.
The location of documents and records is not a major concern in these days of easy and rapid transportation. The Government asserts that it has five file drawers of documents but does not dispute that they are readily transportable. Defendants assert that "many of the documents and records relevant to the defense's case are located in Miami." Defendants' Memorandum, p. 11. This factor is in equilibrium insofar as transfer is concerned.
5. The disruption of defendant's business.
The disruption of defendants' business is a factor in favor of Miami, although this concern is considerably mitigated by the relatively brief (2-3 weeks) anticipated duration of the trial. Nevertheless, defendants (especially defendant Scharrer) would appear likely "to suffer adverse financial consequences" (Defendants' Memorandum, p. 11) if transfer is denied. This factor favors transfer.
6. Expense to the parties.
The Government addressed this issue by an extensive recitation of Posner's wealth and the contention that both defendants are "men of substantial means" (Government's Memorandum, p. 9) who "have failed utterly to offer specifies about any possible financial hardship...". Government's Memorandum, p. 19.
At oral argument, counsel for Scharrer asserted that Scharrer was on the verge of bankruptcy, a contention which the Government's attorney stated took him by surprise. Scharrer was allowed time to file an affidavit as to his financial condition and he has done so. The Government by letter dated June 24, 1982 points persuasively to the gaps in Mr. Scharrer's affidavit as to his *479 financial posture and his failure to account fully for all assets at his disposal and the disposition of funds previously available to him. Were this the decisive factor with respect to the motion, we might pursue the Government's suggestion that there be further inquiry into Mr. Scharrer's financial ability to stand trial in New York. We do not so regard this consideration and assume for these purposes that although trial in New York City would of course be more expensive for the defendants, it would not be beyond their financial capacity.
7. Location of counsel.
Location of counsel is not a decisive factor in this case. Posner's attorney is headquartered in Washington, D.C. but readily agrees that he practices nationally. Scharrer's counsel has newly entered this case, fully aware that it was scheduled for trial in New York in September.
8. Relative accessibility of place of trial.
Relative accessibility of place of trial is a neutral factor; both New York and Miami are well served by air and other public transport.
9. Docket condition of each district.
We believe that the most serious factor weighing against transfer is the state of the docket in Miami and the effect which the transfer might have in delaying the trial of this case presently set for September 13, 1982. The Government urges that "a transfer moreover will compound the problem of judicial administration in the Southern District of Florida, where 4,000 indictments are anticipated in the near future." Government's Memorandum, p. 19. The defendants' reply that the concerns with regard to the Miami docket are all prospective and somewhat conjectural. This Court's independent inquiry as to the state of the Miami docket confirms the accuracy of defendants' description. Moreover, if the consequence of a transfer of this case would be to occasion untoward delay in its being reached for trial, other procedures are available to enable the trial to go forward expeditiously.[2] However, the criminal docket in this Court is relatively current and although, as indicated above, the docket problem is not insurmountable, this factor tilts against transfer.
10. Any other special elements which might affect the transfer.
Finally, we consider the tenth factor which Platt enumerates, i.e., "any other special element which might affect the transfer." Defendants raise the question whether the Government may have unfairly attempted to gain an advantage over the defendants by choosing a forum because of its inconvenience, basing venue on "the slimmest of reeds." Defendants' Memorandum, p. 13. Defendants cite United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236 (1944) for the admonition that courts should take into account the constitutional guarantee that criminal trials take place in the district where the crime was committed. But of course, Johnson considered a similar broad venue provision and rejected the constitutional challenge. The only inquiry mandated by Johnson is into the question whether the prosecution has chosen this venue abusively, i.e., in order to gain an advantage by inconveniencing the defendant. See United States v. Gruberg, 493 F.Supp. 234, 242-43 n. 5 (S.D.N.Y.1979). We agree with the Government that there has been no showing that the Government purposely sought to burden these defendants by choosing this forum. The Government contends that it returned the indictment here "simply because this lengthy [2 year] investigation was conducted here, all *480 documents, exhibits and files are located here and relevant, substantive events the preparation of the false income tax returns occurred here." Government's Memorandum, p. 18 (citing United States v. Gross, 276 F.2d 816, 819 (2d Cir.) cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960), for the proposition that venue is proper in the district where tax returns were prepared in a tax fraud case).
Although we do not find that there was any deliberate abusive conduct on the Government's part, the short of it is that in every significant aspect, this is a peculiarly and inherently Florida case. Balancing all of the considerations enumerated above and applying the standard of United States v. United States Steel Corporation, supra, we find that: "fairness requires the transfer to another district of proper venue where a trial would be less burdensome." Accordingly, the motion to transfer is granted and the Clerk of this Court is directed forthwith to take all steps necessary to transfer the case to the Southern District of Florida.[3]
Motion to transfer granted.
SO ORDERED.
NOTES
[1] Defendants have also moved for transfer pursuant to 18 U.S.C. § 3237(b) but:
"must concede that it is equally plain that the controlling Second Circuit precedent indicates that the election provision of § 3237(b) is not available to them."
Memorandum of Points and Authorities in Support of Defendants' Joint Motion for Transfer to the Southern District of Florida (hereinafter "Defendants' Memorandum"), p. 4.
This Court is indeed bound by the holding of the Second Circuit in In Re United States (United States v. Clemente, 608 F.2d 76 (2d Cir. 1979), cert. denied 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980)) and the defendants' motion pursuant to 18 U.S.C. § 3237(b) is denied.
[2] With respect to the condition of the Miami docket, it appears that:
"To prevent scheduling problems, local federal judges are expected to continue to handle long trials, while shorter ones will be assigned to visiting judges on rotation. The Southern District (of Florida] has virtually no backlog of criminal cases, but does have a significant civil backlog. Rotating judges, it is expected, will be of inestimable aid in meeting the projected increase in filings as well as helping to reduce the backlog."
The Third Branch, Bulletin of the Federal Courts, Published by the Administrative Office of the U.S. Courts and the Federal Judicial Center, June, 1982, p. 2. (Emphasis added).
[3] Other motions have been made by defendants to which the Government has not responded. These motions were made returnable before either this Court or, if transfer is granted, the transferee court. The defendants have requested that such motions be decided by the transferee judge and we agree that this is the more appropriate procedure.
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651 F.2d 236
UNITED STATES of America, Appellee,v.Arthur C. SHAVER, Appellant.
No. 80-5181.
United States Court of Appeals,Fourth Circuit.
Argued April 7, 1981.Decided June 9, 1981.
Ronald W. Vaught, Erwin S. Solomon, Hot Springs, Va. (Erwin S. Solomon & Associates, Hot Springs, Va., on brief), for appellant.
Jean B. Weld, Asst. U. S. Atty., Roanoke, Va. (John S. Edwards, U. S. Atty., Thomas J. Bondurant, Jr., Asst. U. S. Atty., Roanoke, Va., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, WINTER, Chief Circuit Judge, and BUTZNER, Circuit Judge.
ALBERT V. BRYAN, Senior Circuit Judge:
1
Indicted for conspiring to transport stolen goods from Virginia to West Virginia, 18 U.S.C. § 371,1 appellant Arthur C. Shaver was tried alone, found guilty by a jury as indicted, fined $2500.00, and placed on probation. Arliss G. Emmerich, jointly indicted as Shaver's co-conspirator, was not arraigned prior to Shaver's trial, as he was then a fugitive in Israel. Following extradition Emmerich was reindicted solely for the substantive offense of interstate transportation of stolen goods; however, at his trial the District Court struck the Government's case after rejecting its evidence of aiding and abetting, apparently because the indictment contained no such allegation.
2
Shaver appeals his conviction on the ground that the trial court erroneously denied his motions, seasonably made, for a judgment of acquittal, arguing that the evidence was insufficient to establish beyond a reasonable doubt that he conspired with Emmerich.2 We agree, reverse and enter final judgment for the appellant.
3
At the time of his arrest Shaver was the Drill and Blast Superintendent, and Emmerich a foreman under him, for the Daniel Construction Company then engaged in the Bath County (Virginia) Pump Storage Project, a vast undertaking embracing construction of two dams and reservoirs, a complex of tunnels and a power house for the Virginia Electric and Power Company (VEPCO). The project called for extensive blasting of the land surface and of the subsurface rock. This work requires the drilling of numerous holes into the ground of the tract and the placing therein of powder and blasting caps. Copper wire is wrapped around this charge, run out of the hole, and connected with wire leads from other holes similarly loaded. More wire connects the grid to an electric power source. This wiring is destroyed by the blast, but there remain, untouched, "clippings" previously cut from the lengths of copper wire originally provided in the process of laying out and connecting up the network. These cuttings are short, from one to two or three feet long, and when their insulation is burned off they have a marketable value for the copper content. Consequently they are collected and are the property of the project material supplier, in this instance VEPCO. Although it is apparently a common practice to permit the blasting superintendent or crew to claim the clippings, at the Bath site VEPCO forbade the removal of any materials of value.
4
On February 25, 1980 Shaver was stopped at the project gate as he was leaving the site in a company truck commonly used by him. Several burlap bags of copper clippings were in the rear of the vehicle. Subsequent investigation revealed that Shaver previously had made six sales of copper clippings to one Belcher, a junk dealer in Caldwell, West Virginia; Emmerich, Shaver's foreman, had made twelve sales of like clippings to the same dealer.
5
While Shaver insists that he intended to return the contents of the truck when he next returned to work, and that his sales to Belcher consisted of clippings legitimately gathered from other projects, he appears to concede that the evidence at trial could support a conviction for theft or for interstate transportation of stolen property. As Shaver was indicted and convicted only of conspiracy, however, we are concerned with the sufficiency of the evidence to prove, beyond a reasonable doubt, each element of that offense.
6
Appellant contends, and we agree, that the evidence was inadequate to support a conclusion that the two men acted under any common, mutual or joint agreement, understanding or interest.3
7
We have gauged the proof by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which, although upholding a conviction, the Court declared:
8
(T)he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
9
Id. at 319, 99 S.Ct. at 2789 (footnote omitted).4
10
As evidence supporting the conclusion that an agreement existed between Shaver and Emmerich, the Government in part relies on the testimony of Albert Wood, a blasting crew employee. Wood testified that on February 25, 1980 he observed Emmerich at the blasting site loading bare copper clippings into his van, and subsequently driving his van down to the office trailer; that he saw Shaver's truck earlier in the day with empty burlap sacks in the rear a common sight, according to Wood; and that later he saw Shaver's truck with full burlap sacks in the back. The Government asserts that Wood also testified to seeing Emmerich's van and Shaver's truck together at the office, and to observing Shaver leaving shortly thereafter with full burlap sacks in his truck. A diligent reading of the transcript portions cited by the Government utterly fails to support this characterization of Wood's testimony.5
11
The Government notes that Shaver and Emmerich sold clippings to the same junk dealer in Caldwell. It is difficult to assess the significance that a reasonable trier of fact could attach to this, because no evidence was adduced of the relative proximity to the Bath project of any other junk dealer.
12
One suggestion of joint action was the appearance, on two out of twelve receipts given to Emmerich by Belcher, of the license number of a truck owned by Shaver's wife. Although Belcher was called by the prosecution, he was not asked to identify or explain the notations; nothing in the record indicates who made the notations, or why they were made. Belcher did testify that he could not recall ever seeing Shaver and Emmerich together.
13
With regard to one vital element of conspiracy agreement this might well be categorized as a "no-evidence" case. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). We need not reach that far, however, since the proof so grossly fails to rise to the minimum level demanded by Jackson.
14
Reversed with Final Judgment.
1
18 U.S.C. § 2314 forbids any person to transport in interstate commerce "any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen." Shaver was indicted and tried only for conspiracy, not for the underlying substantive offense
2
Shaver also appeals the Court's admission of the testimony of a witness who, despite its earlier grant of a motion to exclude witnesses, had remained in the courtroom. In view of our present decision directing acquittal we deem it unnecessary to consider this assignment of error
3
No complaint is made of the charge to the jury. Indeed, it was exemplary, emphasizing that an essential element of the offense was agreement, without proof of which beyond a reasonable doubt there could be no conviction under the indictment. The District Judge sharply distinguished agreement from the other elements of the crime laid to Shaver that is, a knowledge that the goods had been stolen and the transportation of them interstate
4
This standard governs review of both Federal and State convictions. See id. n. 12; Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)
5
The inferences that the Government would draw, that the bags in Shaver's truck contained copper transferred from Emmerich's van and that this demonstrates agreement and co-operation, thus are considerably attenuated. The reasonableness of such inferences is rendered even more doubtful when the statements of George Carey and Ronald Maxwell, Shaver's immediate superiors, are considered. Both testified that on the day he was stopped Shaver had been directed to remove copper clippings and other debris that had accumulated in the powder storage trailer. Philip Lindsey, one of Shaver's foremen, further testified that he was ordered to clean up the trailer, and that he loaded the clippings into Shaver's truck
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964 N.E.2d 314 (2012)
SMITH
v.
SMITH.
No. 27A02-1107-DR-642.
Court of Appeals of Indiana.
February 29, 2012.
BROWN, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed, Reversed and Remanded.
MAY, J. and CRONE, J., Concurs.
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753 F.2d 1071
Smithv.Virginia Dept. of Correction
84-6442
United States Court of Appeals,Fourth Circuit.
1/8/85
1
E.D.Va.
AFFIRMED
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488 F.Supp.2d 241 (2007)
CRUM & FORSTER INSURANCE COMPANY, Plaintiff,
v.
GOODMARK INDUSTRIES, INC. and Nat Schlesinger, Defendants/Third-Party Plaintiffs,
v.
Horizon International Group Ltd., Cambridge Horizon Consultants, Inc., John Morrongiello, and Norman Benet, Third-Party Defendants.
05-cv-3633 (ADS)(ETB).
United States District Court, E.D. New York.
May 22, 2007.
*242 Cozen and O'Connor, P.C. by Elaine M. Rinaldi, Esq., John Brian Galligan, Esq., Michael James Sommi, Esq., Robert W. Phelan, Esq., Philadelphia, PA, for Plaintiff.
Jeremy L. Gutman, Esq., New York City, for Defendants/Third-Party Plaintiff's.
Shearman & Sterling LLP by Daniel M. Segal, Esq., Steven F. Molo, Esq., New York City, for Third-Party Defendants.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
On August 2, 2005, Crum & Forster Insurance Company (the "Plaintiff" or "Crum & Forster") filed a complaint against Goodmark Industries, Inc. ("Goodmark") and Nat Schlesinger ("Schlesinger") (collectively the "Defendants/Third-Party Plaintiffs"). On November 10, 2005, the Defendants/Third-Party Plaintiff's filed a third-party, complaint against Horizon International Group Ltd. ("Horizon"), Cambridge Horizon Consultants, Inc. ("Cambridge"), John Morrongiello ("Morrongiello"), and Norman Benet ("Benet") (collectively the "Third-Party Defendants").
Currently pending before the Court is a motion by the Third-Party Defendants, under Federal Rule of Civil Procedure ("Fed. R. Civ.P.") 12(b)(6), to dismiss the third-party complaint.
I. BACKGROUND
A. Factual Background
The Plaintiff, a New Jersey corporation, issues insurance policies. Goodmark, a former New York corporation, manufactured women's clothing. Schlesinger, formerly a New York resident, was an owner and officer of Goodmark. The Plaintiff insured Goodmark's real and personal property.
On August 2, 2005, the Plaintiff filed a complaint against Goodmark and Schlesinger, alleging that they defrauded the Plaintiff. On August 3, 1999, a fire destroyed Goodmark's real and personal property. On August 17, 1999, the Plaintiff made a partial payment to the Defendants/Third-Party Plaintiff's of $100,000 for the preliminary insurance claim. Thereafter, on December 10, 1999, pursuant to the insurance policy, Crum & Forster paid an additional $834,319 to the Defendants/Third-Party Plaintiff's. The Plaintiff contends that it unknowingly made payments on fraudulent insurance claims submitted by Goodmark and Schlesinger.
On November 10, 2005, Goodmark and Schlesinger filed a third-party complaint against the Third-Party Defendants alleging that the Third-Party Defendants defrauded the Plaintiff; breached a contract; breached a covenant of good faith; and were negligent. At the time of the events at issue, Horizon was a New York corporation in the business of adjusting insurance claims. Cambridge is a New York corporation that is the successor to Horizon. Morrongiello was an officer and owner of Horizon and is currently an owner and officer of Cambridge. Benet was an employee of Horizon and is currently an employee of Cambridge.
The Defendants/Third-Party Plaintiff's allege that, following the fire on August 3, 1999 at Goodmark's premises, Goodmark retained Horizon as a public insurance adjuster. The Defendants/Third-Party Plaintiff's contend that, pursuant to a contract, the Third-Party Defendants assumed responsibility for inspecting the premises, assessing damage to the premises *243 and providing an estimate of the loss. They assert that the Third-Party Defendants were responsible for preparing, presenting and negotiating the claim with the Plaintiff.
The Defendants/Third-Party Plaintiff's further contend that from August 1999 through December 1999, the Third-Party Defendants inspected, assessed damages and provided information to the Plaintiff regarding the damages caused by the August 3, 1999 fire. In the third-party complaint, the Defendants/Third-Party Plaintiff's deny that they "devised and executed a scheme to defraud Crum & Forster by submitting and causing to be submitted false, fraudulent and inflated insurance claims/documentation." They further claim "[n]otwithstanding defendants' denial . . . should it be adjudged that the insurance claims and/or documentation submitted to Crum & Forster were `fraudulent and inflated,' any such fraud or inflation was caused by Third-party Defendants' intentional misconduct and/or negligence, in breach of their contractual obligations and implied covenant of good faith and fair dealing."
B. The Criminal Case
On October 1, 2003, a grand jury issued a 34 count superseding indictment against Schlesinger, Herman Niederman ("Niederman"), and Goodmark (collectively the "Defendants"), arising out of, among other events, a series of fires that occurred at Goodmark's factory in the Williamsburg section of Brooklyn dating back to 1987. The indictment alleged that the Defendants engaged in various fraudulent schemes. One scheme involved defrauding insurance companies by submitting fraudulent claims for losses resulting from a series of fires that occurred at Goodmark from 1987 to 1999.
In particular, the superseding indictment alleged that, on August 3, 1999, a fire occurred at Goodmark. Schlesinger retained the services of Horizon to negotiate Goodmark's claim with Crum & Forster, the insurance company. According to the superseding indictment, Schlesinger submitted fraudulent documentation from codefendant Niederman regarding the value of damaged fabrics, as well as other fraudulent documents in order to defraud the insurance company. The superseding indictment stated that Schlesinger and Goodmark prepared false and fraudulent documentation for submission by Horizon to Crum & Forster. After receiving the proof of loss, the insurance company paid the claim in the amount of $934,319. The funds were deposited into the Goodmark bank account.
On May 19, 2005, following a four week jury trial, the Defendants, Schlesinger and Goodmark, were convicted of, among other counts, conspiracy to commit mail and wire fraud, 18 U.S.C. § 371, substantive mail and wire fraud, id. § 1341 and 1343, conspiracy to commit money laundering and substantive money laundering. Id. § 1956(h) and 1957. At the trial the Government submitted proof of two fraudulent schemes. One scheme involved defrauding insurance companies by submitting fraudulent claims for losses sustained as a result of a series of fires that occurred at the Premises from 1987 to 1999. Specifically, according to count one of the superseding indictment, of which Schlesinger and Goodmark were found guilty, the Defendants provided Horizon with fictitious invoices relating to services and repairs in connection with the August 1999 fire.
In connection with the fraudulent claim submitted in relation to the August 3, 1999 fire, on August 4, 2006, in its Judgment, this Court ordered Schlesinger and Goodmark *244 to pay restitution to Crum & Forster in the amount of $934,319.
C. The Present Motion
On December 26, 2006, the Third-Party Defendants moved to dismiss the third-party complaint. The Third-Party Defendants contend that the Defendants/Third-Party Plaintiff's were convicted of fraud and, as a result of that conviction, they are collaterally estopped from litigating these claims. Further, the Third-Party Defendants claim that the Defendants/Third-Party Plaintiff's failed to comply with the pleading requirements of Rule 8; failed to state a claim for breach of contract and breach of the covenant of good faith and fair dealing; and that the negligence cause of action is time-barred.
In opposition, the Defendants/Third-Party Plaintiff's contend that their claims are not barred by collateral estoppel because the jury did not decide the Third-Party Defendants' liability; all claims are adequately plead; and the negligence claim is not time-barred.
II. DISCUSSION
A. The Standard of Review for a Motion to Dismiss Under Rule 12(b)(6)
In deciding a motion to dismiss under Rule 12(b)(6), a district court must "accept all of the plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Starr v. Georgeson S'holder, Inc., 412 F.3d 103, 109 (2d Cir.2005); Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir.2005); Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)).
B. As To Collateral Estoppel
"The Government bears a higher burden of proof in the criminal than in the civil context and consequently may rely on the collateral estoppel effect of a criminal conviction in a subsequent civil case." Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 43 (2d Cir.1986). Moreover, "[b]ecause the mutuality of estoppel is no longer an absolute requirement under federal law . . . a party other than the Government may assert collateral estoppel based on a criminal conviction." Id.See also Chi. Ins. Co. v. Fasciana, No. 04 Civ. 7934, 2006 WL 3714310, at *3, 2006 U.S. Dist. LEXIS 90399, at *10 (S.D.N.Y. Dec. 13, 2006) ("The Court of Appeals has explained that a party other than the Government may assert collateral estoppel based on a criminal conviction"). "The criminal defendant is barred from relitigating any issue determined adversely to him in the criminal proceeding, provided that he had a full and fair opportunity to litigate the issue." Gelb, 798 F.2d at 43. See also Sorrentino v. Barr Labs., Inc., 397 F.Supp.2d 418, 421 (W.D.N.Y.2005) ("It is equally clear that a prior criminal conviction can give rise to collateral estoppel in a subsequent civil action involving some of the same factual issues"); SEC v. Namer, No. 97 Civ.2085, 2004 WL 2199471, at *4, 2004 U.S. Dist. LEXIS 19611, at *13 (S.D.N.Y. Sept. 30, 2004) ("In a civil case, it is appropriate to estop a party from relitigating issues actually *245 and necessarily decided as part of a prior criminal judgment and conviction").
In order for collateral estoppel "to apply: (1) the issues in both proceedings must be identical, (2) the issue in the prior proceeding must have been actually litigated and actually decided, (3) there must have been a full and fair opportunity for litigation in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits." Gelb, 798 F.2d at 44. See also New York v. Julius Nasso Concrete Corp., 202 F.3d 82, 86 (2d Cir. 2000). "To show an identity of issue, the issue must have been material to the first action or" proceeding and essential to the decision rendered therein . . . and it must be the point actually to be determined in the second action or proceeding such that a different judgment in the second would destroy or impair rights or interests established by the first." Sorrentino, 397 F.Supp.2d at 422.
In the criminal action, the Defendants/Third-Party Plaintiff's were convicted of mail fraud, wire fraud and conspiracy to commit mail and wire fraud in connection with false and fraudulent insurance claims that they submitted to Crum & Forster. Specifically, count one of the superseding indictment, of which Schlesinger and. Goodmark were found guilty, noted that Schlesinger and Goodmark had provided Horizon with fictitious invoices relating to services and repairs in connection with the August 1999 fire. In fact, the jury determined that Schlesinger and Goodmark schemed to defraud insurance companies, and specifically, Crum & Forster, in connection with the August 1999 fire.
In their third-party complaint in this civil action, the Defendants/Third-Party Plaintiff's deny that they defrauded Crum & Forster in connection with the August 3, 1999 fire, despite the fact that this issue was already decided in the criminal action by proof beyond a reasonable doubt. Further, the Defendants/Third-Party Plaintiff's contend, under the guise of a breach of contract and negligence action, that "should it be adjudged that the insurance claims and/or documentation submitted to Crum & Forster were `fraudulent and inflated,' such fraud or inflation was caused by Third-Party Defendants' intentional misconduct and/or negligence."
The Defendants/Third-Party Plaintiff's seek to relitigate the issues decided in the criminal case by denying their liability and alternatively, claiming that if fraudulent claims were submitted to Crum & Forster, any fraud was committed by the Third-Party Defendants. Clearly, the first prong of the Gelb test is met because the issue of liability for the fraudulent insurance claims was material to the criminal action and is the issue to be decided in the present case. Sorrentino, 397 F.Supp.2d at 422. In fact, the third-party complaint is based on the Defendants/Third-Party Plaintiffs' denial of their criminal liability and claim that other parties actually bear responsibility for the criminal actions.
Under prong two of Gelb, there can be no question that, in the criminal action, Schlesinger and Goodmark actually litigated their case in a four week trial. Further, the jury deliberated and decided the facts necessary to reach a verdict on the superseding indictment as it pertained to, the insurance fraud, and specifically the fraudulent claims submitted to Crum & Forster following the August 1999 fire. Further, the Defendants/Third-Party Plaintiff's do not deny that they had a full and fair opportunity to defend themselves in the prior criminal proceeding, as required by prong three of Gelb. Finally, the issue previously litigated was necessary to *246 support a valid and final judgment on the merits. Gelb, 798 F.2d at 44.
In opposition to the Third-Party Defendants' motion, the Defendants/Third-Party Plaintiff's contend that, in the criminal case, the jury did not have the opportunity to decide whether the Third-Party Defendants "bore responsibility for the submission of fraudulent insurance claims or documentation," and therefore, the issues in the present case are not identical to those litigated in the criminal case. However, as previously discussed, the jury determined that Schlesinger and Goodmark were responsible for the submission of fraudulent insurance claims. Although the Defendants/Third-Party Plaintiff's, in their opposition papers, argue that the jury never addressed whether Horizon could have been partially responsible, in the third-party complaint, Schlesinger and Goodmark deny liability and contend that Horizon bears full responsibility for the submission of fraudulent claims. The Defendants/Third-Party Plaintiff's are attempting to relitigate their own liability and prove that the Third-Party Defendants defrauded Crum & Forster despite the jury's findings. The Defendants/Third-Party Plaintiff's may not waste judicial resources in this manner.
The Defendants/Third-Party Plaintiff's further contend that collateral estoppel should not apply to the present case because the Defendants' criminal case is on appeal. This claim is without merit. See United States v. All Right, Title & Interest in Real Property etc., 901 F.2d 288, 292 (2d Cir.1990) ("the pendency of an appeal from a conviction does not deprive a judgment of its preclusive effect"); Namer, 2004 WL 2199471 at *8, 2004 U.S. Dist. LEXIS at *24 ("The pendency of a criminal appeal generally does not deprive a judgment of its preclusive effect"); Flair Broad. Corp. v. Powers, Nos. 89 Civ. 2528, 89 Civ. 5185, 1998 WL 247521, at *4, 1998 U.S. Dist. LEXIS 6949, at *15 (S.D.N.Y. May 15, 1998) ("the pendency of an appeal does not preclude the application of collateral estoppel under either federal or New York law").
As such, the doctrine of collateral estoppel bars the interposition of the thirdparty complaint. Accordingly, the Third-Party Defendants' motion to dismiss the thirdparty complaint is granted.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the Third-Party Defendants' motion to dismiss the thirdparty complaint is GRANTED and the thirdparty complaint is dismissed with prejudice.
SO ORDERED.
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249 F.3d 876 (9th Cir. 2001)
NICOLE CARLSON, AN INDIVIDUAL, PLAINTIFF-APPELLANT,v.CHARLES B. REED, AN INDIVIDUAL AND IN HIS CAPACITY AS CHANCELLOR OF THE CALIFORNIA STATE UNIVERSITY; ROBERT L. CARET, AN INDIVIDUAL OPINION AND IN HIS CAPACITY AS PRESIDENT OF SAN JOSE STATE UNIVERSITY, DEFENDANTS-APPELLEES.
No. 99-56171
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted February 6, 2001Filed May 8, 2001
W. Andrew Harrell, Edmonton, Alberta, Canada, for the appellant.
Karen L. Robinson (argued), Laura D. Knapp, Long Beach, California, for the appellees.
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding. D.C. No. CV-98-08152-R-E
Before: Dorothy W. Nelson, Diarmuid F. O'Scannlain, Andrew J. Kleinfeld, Circuit Judges.
O'scannlain, Circuit Judge
1
We must decide whether a state university may classify an alien temporary nonimmigrant visa holder student as a non-resident for tuition purposes.
I.
2
Nicole Carlson, a Canadian citizen, entered the United States in 1996 under a "TD" nonimmigrant visa and has lived in California since that time. Under the terms of the North American Free Trade Agreement ("NAFTA"), a TD visa holder is authorized to enter the United States solely on a temporary basis; as a condition of entry, the visa holder must disclaim any intent to establish permanent residence in this country. 8 C.F.R. 214.6; 22 C.F.R. § 41.59. Despite such restriction on her visa, however, Carlson alleges that California is her one and only domicile. Carlson has periodically applied for, and received, annual extensions of her TD visa.
3
In 1997, Carlson applied for admission to San Jose State University ("SJSU"), part of the California State University ("CSU") system. She was advised by a SJSU representative that she would be classified as a nonresident, and hence could not attend SJSU on the tuition-free basis afforded California residents. Carlson appealed her nonresident classification to Linda MacAllister, University Counsel and Residence Specialist for the CSU system. MacAllister informed Carlson that she was not eligible for resident classification because her TD immigration status precluded her from establishing permanent residence in the United States. Carlson appealed MacAllister's determination to Chancellor Charles B. Reed, who rejected Carlson's appeal on the ground that she did not meet the residence requirements established by the California Education Code given her TD immigration status. Carlson alleges that, as a result of her nonresident classification, she was unable to enroll at CJSU because she could not afford the nonresident tuition rate.
4
In October 1998, Carlson instituted the present federal civil rights action under 42 U.S.C. § 1983, bringing suit against CSU Chancellor Reed and SJSU President Robert L. Caret in their official and individual capacities, seeking damages and injunctive relief for their alleged violation of her federal constitutional rights under the Supremacy Clause and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In January 1999, Carlson sought a preliminary injunction. After a brief hearing, Judge Real denied Carlson's request, explaining that the "holder of a TN/TD visa does not have the legal capacity to possess the requisite intent to establish domicile and thus cannot be granted residency status in California." Chancellor Reed and President Caret thereupon filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), which Judge Real granted on June 1, 1999.1 This timely appeal followed.
II.
5
We must first decide whether, under California state law, Carlson is eligible for classification as a California resident for state university tuition purposes.
6
Each student in the California State University system is classified as either a "resident" or "nonresident" for tuition purposes. Cal. Educ. Code § 68040. Only nonresident students are charged tuition. §§ 68050, 68052. To be deemed a resident for tuition purposes, a student must have resided in the state for at least one year. § 68017. Section 68062 sets forth the rules for determining residence. These rules include, in pertinent part, the following:
7
(a) There can only be one residence.
8
(b) A residence is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he or she returns in seasons of repose.
9
(c) A residence cannot be lost until another is gained.
10
(d) The residence can be changed only by the union of act and intent.
11
...
12
(h) An alien, including an unmarried minor alien, may establish his or her residence, unless precluded by the Immigration and Nationality Act (8 U.S.C. 1101, et seq.) from establishing domicile in the United States.
13
Cal. Educ. Code § 68062.
14
The specific question before us, therefore, is the proper interpretation of section 68062(h), which provides that aliens are eligible for classification as California residents only if they possess the legal capacity to establish "domicile in the United States" under federal immigration law.
A.
15
According to Carlson, subsection (h) incorporates the INA definition of "residence" set forth at 8 C.F.R. § 316.5, which provides:
16
Unless otherwise specified, for purposes of this chapter . . . an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent . . . .
17
Carlson urges that this regulation equates domicile with simple physical residency, and, thus, simple physical residency is all that § 68062(h) requires, too.
18
We disagree with Carlson's interpretation of § 361.5. Clearly, the plain language of this regulation demonstrates that it defines "residence" rather than "domicile." Thus, we must look elsewhere to determine how federal immigration law may preclude establishment of "domicile" in the United States for purposes of California Education Code section 68062(h).
B.
19
Prior to 1983, California's Education Code provided:
20
A student who is an adult alien shall be entitled to resident classification if he has been lawfully admitted to the United States for permanent residence in accordance with all applicable laws of the United States; provided, that he has had residence in the state for more than one year after such admission prior to the residence determination date for the semester, quarter or term for which he proposes to attend an institution.
21
Cal. Educ. Code § 68076 (repealed, 1983 Cal. Stat. 680). In 1983, the California legislature repealed section 68076 and replaced it with current section 68062(h).
22
It is apparent that it did so in response to the Supreme Court's decision in Toll v. Moreno, 458 U.S. 1 (1982). See Cal. Atty Gen. Op. No. 84-101 (1984) (reprinted as appendix in Regents of the Univ. of Cal. v. Superior Court, 276 Cal. Rptr. 197, 202 (Cal. Ct. App. 1990)). In Toll , the Court held that a similar Maryland provision that limited resident tuition status to United States citizens and immigrant aliens (i.e., aliens admitted to permanent residence) violated the Supremacy Clause, because the state thereby imposed additional burdens not contemplated by Congress on nonimmigrant aliens whose visa status permitted them to establish United States domicile. 458 U.S. at 3, 13-14. The language of 68062(h) was drawn directly from Toll:
23
The Immigration and Nationality Act . . . recognizes two basic classes of aliens, immigrant and nonimmigrant. With respect to the nonimmigrant class, the Act establishes various categories, the [plaintiffs'] G-4 category among them. For many of these nonimmigrant categories, Congress has precluded the covered alien from establishing domicile in the United States. But significantly, Congress has allowed G-4 aliens . . . to enter the country on terms permitting the establishment of domicile in the United States.
24
Id. at 13-14 (emphasis added) (internal citations omitted).
25
In a prior related case, Elkins v. Moreno, 435 U.S. 647 (1978), the Supreme Court contrasted nonimmigrant classes such as the G-4 class with other nonimmigrant classes for whom "Congress expressly conditioned admission . . . on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States." Id. at 665. The Court proceeded to observe that,
26
"[b]y including restrictions on intent in the definition of some nonimmigrant classes, Congress must have meant aliens to be barred from these classes if their real purpose in coming to the United States was to immigrate permanently . . . . [I]t is also clear that Congress intended that, in the absence of an adjustment of status . . . , non-immigrants in restricted classes who sought to establish domicile would be deported.
27
Id. at 665-66. The Court concluded, however, that Congress did not impose restrictions on intent for non-immigrants in the G-4 class, and, thus, Congress was willing to allow such aliens to adopt the United States as their domicile. Id. at 666. Accordingly, in order to determine if Carlson is precluded by section 68062(h) from establishing California residence for tuition purposes, we must determine whether Congress conditioned Carlson's admission into the United States"on an intent not to abandon a foreign residence" or otherwise "on an intent not to seek domicile in the United States. " Id. at 665.
C.
28
The "TN" visa category was created pursuant to Section D of Annex 1603 of NAFTA, which provides that "[e]ach party shall grant temporary entry and provide confirming documentation to a business person seeking to engage in a business activity at a professional level . . . if the business person otherwise complies with existing immigration measures applicable to temporary entry." North American Free Trade Agreement, 32 I.L.M. 605, 664 (1993) (emphasis added). The TD visa category is for dependents of TN visa holders. Carlson is a TD visa holder.2
29
As part of the NAFTA Implementation Act, Pub. L. 103-182, 107 Stat. 2057, Congress authorized the Attorney General to promulgate regulations governing the TN/TD visa category. See 8 U.S.C. § 1184(e). Pursuant to this authority, the Attorney General promulgated 8 C.F.R. § 214.6, which provides:
30
Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.
31
8 C.F.R. § 214.6(b) (emphasis added).
32
Accordingly, because admission into the United States for TN/TD nonimmigrant aliens is expressly conditioned on an intent not to establish permanent residence here, it is evident that Congress has "precluded [such aliens ] from establishing domicile in the United States" under Elkins and Toll. Thus, Carlson cannot satisfy the residency requirement of 68062(h).
33
We further observe that, even if Carlson were to demonstrate sufficient indicia of a subjective intent to reside permanently in California, she would thereby violate her TN/TD federal immigration status. Her continued presence in this country would be illegal. See Elkins, 435 U.S. at 666; 8 C.F.R. § 214.1. In Regents of the Univ. of Cal., the California Court of Appeal construed section 68062(h) to provide that "undocumented aliens," that is, "noncitizens who lack valid visas, having entered or remained in the United States in violation of federal immigration law," cannot qualify for California resident status for state university tuition purposes. 276 Cal. Rptr. at 200-201. Accordingly, even if Carlson could establish a subjective intent to remain permanently in California, she would still not be eligible for resident status at SJSU.
34
In conclusion, because Carlson lacks the legal capacity to establish domicile in the United States within the meaning of Elkins and Toll, she is not eligible for classification as a state resident under California Education Code section 68062(h).
III.
35
Next, we must consider whether Carlson's inability to establish state residence under California law violates her federal constitutional rights under the Supremacy, Due Process, and Equal Protection Clauses.
A.
36
In Toll, the Supreme Court held that Maryland violated the Supremacy Clause because it denied G-4 visa holders, who were not precluded by state law from establishing domicile in the state and were not precluded by federal immigration law from establishing domicile in the United States, the same right to resident tuition status that it provided to other state residents. The Court held that the state tuition policy constituted a "state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country . . . [by] impos[ing] additional burdens not contemplated by Congress." Toll, 458 U.S. at 13. The Court explained:
37
In light of Congress' explicit decision not to bar G-4 aliens from acquiring domicile, the State's decision to deny `in-state' status to G-4 aliens, solely on account of the G-4 alien's federal immigration status, surely amounts to an ancillary `burden not contemplated by Congress' in admitting these aliens to the United States.
38
Id. at 14. In addition, the state policy frustrated the federal government's favorable tax privileges for G-4 aliens. Id. at 14-17. For these reasons, the Court held that the state violated the Supremacy Clause. Id. at 17.
39
Here, in contrast, Congress itself has precluded TD visa holders from establishing United States domicile. Thus, by denying TD visa holders the right to establish resident status for tuition purposes, California has hardly imposed on such aliens any "ancillary burden not contemplated by Congress." Id. at 14. California's policy preventing such aliens from establishing permanent residence is the very burden contemplated by Congress in the establishment of TN/TD immigration status in the first instance. Accordingly, California Education Code section 68062 does not violate the Supremacy Clause.
B.
40
We next address Carlson's due process challenge. Under Vlandis v. Kline, 412 U.S. 441 (1973), as limited by Weinberger v. Salfi, 422 U.S. 749 (1975), a state violates due process where it creates a university tuition rate scheme that purports to be concerned with residency, but then applies an irrebuttable presumption precluding those "seeking to meet its test of residency the opportunity to show factors clearly bearing on the issue." Salfi, 422 U.S. at 771. Thus, in Vlandis, the Court held that Connecticut violated the Due Process Clause of the Fourteenth Amendment where it established special rates purportedly for state "residents," but had a policy whereby individuals who started their university career as non-residents were precluded from ever showing that they had meanwhile become state residents. Vlandis, 412 U.S. at 450.
41
Carlson was given the opportunity to present proof that she meets the three requirements California "purports to be concerned with," namely, (1) physical residence; (2) intent to remain permanently in the state; and (3) legal capacity under federal immigration law to do so. Carlson simply failed to meet the third requirement. SJSU has not created an impermissible irrebuttable presumption. Thus, SJSU has not violated Carlson's due process rights under Vlandis .
C.
42
Finally, Carlson alleges that her equal protection rights were violated because California's tuition residency scheme discriminates against TD visa holders in favor of purportedly identically-situated R visa holders.
43
Carlson alleges that nonimmigrant aliens in the"R" class are eligible for resident status at CSU. Carlson claims that this violates her Fourteenth Amendment right to equal protection because R aliens and TN/TD aliens are similarly situated, insofar as both are classified as temporary non-immigrants and, as such, neither can establish domicile in the United States. Thus, according to Carlson, CSU's policy to afford R aliens the opportunity to establish state residence unlawfully discriminates against TN/TD aliens.
44
An alien is eligible for nonimmigrant R status if the alien,
45
for the 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; and (ii) seeks to enter the United States for a period not to exceed 5 years to perform the work described in subclause (I), (II), or (III) of paragraph 27(C)(ii).
46
8 U.S.C. § 1101(a)(15)(R). As discussed above, the Court in Elkins noted that, for many nonimmigrant classes, "Congress expressly conditioned admission . . . on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States." Elkins , 435 U.S. at 665. Indeed, in 8 U.S.C. §§ 1101(a)(15)(B), (F), (H)(ii)(a), (J), (M), (O)(ii), (P), and (Q), Congress explicitly limited eligibility for nonimmigrant status to those aliens having"a foreign residence which the alien has no intention of abandoning." Notably, Congress imposed no such "restrictions on intent," Elkins, 435 U.S. at 665, upon non-immigrants in the R category. Applying the canon expressio unius est exclusio alterius, Congress's failure to expressly require R nonimmigrants to maintain a foreign residence must have been deliberate. Further, the Attorney General's regulations governing the admittance of non-immigrants pursuant to § 1101(a)(15)(R) do not require, as a condition of entry, that the alien expressly disclaim an intent to establish permanent residence in the United States. See 8 C.F.R. 214.2(r)(3). In contrast, as discussed above, TN/TD aliens must specifically disclaim any intent to establish permanent residence in the United States as a condition of entry. 8 C.F.R. § 214.6(b).
47
We recognize that R visa holders are not eligible for indefinite extensions of their stay, as are TN/TD visa holders. See 8 C.F.R. 214.2(r)(7). R visa holders may not remain in the United States for a continuous period of time in excess of five years. See id. Such aliens are, however, permitted to return to the United States following a mandatory one-year absence. See id. Furthermore, a careful examination of 8 U.S.C. § 1101(a)(15)(R) and the Attorney General's regulations promulgated thereunder demonstrates that federal immigration law does not restrict an R nonimmigrant alien's intent to establish permanent residence in this country. The five-year limitation on the alien's stay does not preclude the alien from establishing domicile in the United States, given that domicile is traditionally defined as not only the place where one intends to remain, but also the place to which, whenever absent, one has the intention of returning. See, e.g., Smith, 288 P.2d at 499. Thus, notwithstanding the temporal restrictions of R visas, federal immigration status does not preclude R nonimmigrant aliens from establishing United States domicile under Elkins and Toll. As a result, an R alien is not barred from establishing California residence pursuant to§ 68062(h) if the alien resides in California, intends to remain in California throughout her five-year stay, and intends to return to California following her mandatory one-year absence.
48
By denying TN/TD visa holders, but not R visa holders, the opportunity to establish California residence for tuition purposes, California has done no more than the federal government itself has done. The two visa categories are not similarly situated under federal immigration law; it is Congress, not the state, which has distinguished the two categories of nonimmigrant aliens. Thus, Carlson's equal protection claim fails.
IV.
49
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes:
1
Carlson complains that the district court proceeded to rule on defendants' motion for judgment on the pleadings prematurely, as the defendants had not completed their responses to Carlson's interrogatories. This is frivolous. A party may move for a judgment on the pleadings at any point after the pleadings close. Fed. R. Civ. P. 12(c). Interrogatories are not pleadings. Fed. R. Civ. P. 7(a). Thus, a court may grant a 12(c) motion prior to close of discovery.
2
Because the conditions imposed on TN visas also apply to TD visas, the visa category is henceforth referred to as the"TN/TD" category.
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386 S.W.2d 280 (1964)
Ex parte Mike MARTINEZ.
No. 37611.
Court of Criminal Appeals of Texas.
December 16, 1964.
*281 Mike Martinez, pro se.
Leon B. Douglas, State's Atty., Austin, for the State.
McDONALD, Judge.
Petitioner, an inmate of the state penitentiary, brings this application for writ of habeas corpus in his own handwriting. When petitioner's conviction reached this Court on appeal, the writer shared the view of the majority and affirmed the case, from which position he has not departed. It is my view that the Juvenile Act and all hearings thereunder are civil and not criminal in nature. It necessarily follows that I do not believe that jeopardy attaches in juvenile courts as they are without jurisdiction of felony offenses.
My views are fully set forth in the opinion written by me in Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, and in my dissenting opinions upon original submission and on rehearing in Garza v. State, Tex.Cr.App., 369 S.W.2d 36. The writer's views are further stated in his concurring opinion in Ex parte Sawyer, Tex.Cr.App., 386 S.W.2d 275.
Presiding Judge Woodley concurs in the disposition of this cause, his position and reasons being stated in his original opinion upon the appeal of this case, Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929.
Relief prayed for is denied.
MORRISON, Judge (dissenting).
When petitioner's conviction reached this Court on appeal, the writer dissented to the affirmance on the grounds that petitioner had once been in jeopardy and therefore could not, as I saw it, be constitutionally tried again for the same offense. I relied upon the holding in Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, which I still feel is controlling. However, since the rendition of the opinion in petitioner's case, this Court has had a comparable situation before us in Garza v. State, 369 S.W.2d 36. Therein we said:
"To affirm this conviction in the light of the record would be to hold that, for an offense committed before he reached the age of 17 years, the offender who has committed no other offense against the law may, upon petition of the district attorney, be adjudged a delinquent child and held in custody as such, and without regard to how he may respond to the guidance and control afforded him under the Juvenile Act, be indicted, tried and convicted for the identical offense after he reaches the age of 17.
"We sustain appellant's contention that such a conviction violates the principles of fundamental fairness and constitutes a deprivation of due process under the 14th Amendment."
If Doggett v. State, supra, does not control, then surely what we said in Garza v. State, supra, should.
However, my brethren do not agree and this petitioner, who served his term in the State School for Boys for an offense committed when he was 13 years old, who was released and two years later was indicted for an offense growing out of the same transaction, now must continue to be confined under his life term conviction. I have stated my position fully in my dissent in Ex parte Sawyer, Tex.Cr.App., 386 S. W.2d 275.
Petitioner is before this Court without a lawyer and only the writer to speak for him, and I respectfully dissent from the order of this Court denying the relief prayed for.
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208 F.3d 153 (3rd Cir. 2000)
LAWRENCE LINES, Appellantv.DAVID LARKINS, WARDEN; THE DISTRICT ATTORNEY OF THE COUNTY OF BUCKS; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
NO. 97-2050
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued October 7, 1998Filed March 21, 2000
On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 97-cv-01500 District Judge: Hon. Donald W. VanArtsdalen[Copyrighted Material Omitted]
Attorney for Appellant: Elizabeth K. Ainslie, Esq. (Argued) Schnader, Harrison, Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, PA 19103
Attorneys for Appellees: Stephen B. Harris, Esq. (Argued) Heather A. Castellino, Esq. Office of District Attorney 55 East Court Street Bucks County Courthouse Doylestown, PA 18901
Before: McKee, and Rendell, Circuit Judges, and Debevoise, District Judge1
OPINION OF THE COURT
McKEE, Circuit Judge.
1
We are asked to review the District Court's dismissal of Lawrence Lines' petition for a writ of habeas corpus under 28 U.S.C. S 2254. The District Court held that Lines had not exhausted his state court remedies, and dismissed the petition without prejudice based upon that court's conclusion that Lines could return to state court to properly present his claims there. We agree that Lines has not exhausted his state court remedies. However, we conclude that returning to state court would be futile and that his claims are all procedurally defaulted. We also conclude that Lines can not establish cause and prejudice for the default and that failing to reach the merits of his petition would not result in a fundamental miscarriage of justice. We therefore hold that his petition must be dismissed with prejudice. Accordingly, we will affirm, but modify, the order of the District Court dismissing Lines petition for relief under 28 U.S.C. S 2254.
I. Procedural and Factual Background
2
The procedural history of this appeal illustrates just how serpentine the path to federal habeas review has become and the unexploded mines awaiting even seasoned practitioners who attempt to navigate under 28 U.S.C. S 2254.2
3
Lines was tried for murder in state court in 1986. However, he escaped from custody on October 10, 1986, while the jury was deliberating. The jury convicted Lines in absentia, and his trial attorney filed post-verdict motions on his behalf, and in his absence. Lines was apprehended on December 21, 1986, while those post-verdict motions were pending. Thereafter, he retained new counsel who filed additional post-verdict motions on his behalf. The Commonwealth moved to quash the post-verdict motions, arguing that Lines was no longer entitled to seek post verdict relief because he had absconded during his trial. However, the trial court never ruled on the Commonwealth's motion. Instead, the court held numerous evidentiary hearings on the merits of Lines' claims and, by order dated May 23, 1991, the trial court denied the post verdict motions on the merits. On July 19, 1991, Lines was sentenced to life imprisonment on the murder conviction.
4
Following sentencing, Lines filed a timely direct appeal to the Pennsylvania Superior Court in which he raised the following questions:
5
1. Did the attorney for the Commonwealth, in his closing presentation, continuously express his personal opinions of the evidence so as to deprive the appellant of a fair trial?
6
2. Did the Commonwealth commit prosecutorial misconduct in failing to disclose exculpatory evidence concerning its star witness, failing to comply with discovery rules, and failing to correct perjured testimony of the star witness, thus requiring a new trial?
7
3. Was the Defendant-Appellant denied effective assistance of counsel when defense counsel allowed the admittance of hearsay statements without objection, failed to properly prepare for trial and conduct an independent defense investigation, failed to utilize character witness testimony, and failed to develop and present a coherent and cogent theory of defense?
8
Brief of Appellant at 2.3 The Commonwealth responded by asking the Superior Court to dismiss Lines' appeal based upon his flight. The Commonwealth argued that the trial court had erred in not quashing Lines' post-verdict motions because he had been a fugitive when his post-trial motions were filed.
9
The Superior Court agreed with the Commonwealth, and held that the trial court had erred in failing to quash Lines' post-verdict motions. The court stated: "Pennsylvania law indicates that a trial court is without discretion and, therefore, must dismiss a defendant's post-trial motions as long as a defendant is a fugitive." Commonwealth v. Lines, 415 Pa. Super. 438, 440, 609 A.2d 832, 833, allocatur denied, 532 Pa. 662, 618 A.2d 983 (1992). The court held that "appellant has forever forfeited his right to appeal by electing to become a fugitive after post-trial procedures have begun." Id., 415 Pa. Super. at 443, 609 A.2d at 834 (internal quotation marks omitted). The court's holding was partially based upon a then-recent decision wherein the Pennsylvania Supreme Court had stated:
10
A defendant's voluntary escape acts as a per se forfeiture of his rights of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant's capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant has forever forfeited his right to appeal.
11
Commonwealth v. Jones, 530 Pa. 536, 541, 610 A.2d 439, 441 (1992). In its opinion, the court listed Lines' substantive claims but did not address them.4
12
Thereafter, Lines filed a timely Petition for Allowance of Appeal to the Pennsylvania Supreme Court. In his Petition, Lines challenged only the Superior Court's application of the fugitive forfeiture rule; he did not include the substantive claims he had raised in his brief to the Superior Court. On October 28, 1992, the Pennsylvania Supreme Court denied his Petition.
13
On March 31, 1993, Lines filed a petition for collateral relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. C.S. SS 9501 et seq. He raised the following issues in that petition:
14
1. Whether appellate counsel was ineffective for failing to submit to the appellate courts that their retroactive application of Commonwealth v. Jones to the appellant's case would be a violation of the appellant's due process rights.
15
2. Whether appellate counsel was ineffective for failing to submit to the appellate courts that a retroactive application of Commonwealth v. Jones violates the constitutional prohibition against ex post facto laws.
16
3. Whether appellate counsel was ineffective for failing to submit to the appellate courts that a five year delay in the appellant's sentencing on the above captioned matter violated his Sixth Amendment right to a speedy trial.
17
4. Whether appellate counsel was ineffective for failing to raise whether trial counsel was ineffective when he failed to object to the trial court's jury instruction regarding accomplice testimony.
18
5. Whether the appellant is entitled to a new trial on the basis of after-discovered evidence.
19
The PCRA court began its discussion of Lines' petition by declaring: "it is the opinion of this court that this entire petition is improper." The court's view of the impropriety of Lines' PCRA petition was based, in part, upon the court's belief that "appellant is using this petition in an attempt to attack a Superior Court decision in which that court refused to adjudicate appellant's claims on the basis that appellant waived his appeal right because appellant absconded." The court concluded: "This collateral attack is impermissible." Opinion at 3. Nevertheless, the court assumed arguendo that Lines could "maintain such an appeal," id., and denied the petition on the merits without a hearing.
20
Lines appealed to the Pennsylvania Superior Court, which affirmed the denial on the merits of the PCRA petition as to all but one of the issues Lines had raised. The court found that Lines' challenge to appellate counsel's ineffectiveness for failing to raise a claim concerning trial counsel's ineffectiveness had been waived because Lines absconded. The court stated:
21
Since appellant's voluntary escape resulted not in a waiver of those issues addressed in the quashed appeal, but a complete forfeiture of his right to appeal, appellate counsel was effectively barred from raising the issue of ineffectiveness of trial counsel and, thus, cannot be deemed ineffective for having failed to include certain issues in the direct appeal.
22
Opinion at 3-4. Thereafter, the Pennsylvania Supreme Court denied Lines' Petition for Allowance of Appeal from the Superior Court's decision.
23
On February 28, 1997, Lines filed the instant habeas corpus petition under 28 U.S.C. S 2254, raising the following claims:
24
1. Lines' Due Process Rights were violated (1) when the prosecutor refused, despite demand, to disclose that John Gabriele had been immunized and (2) when the prosecutor permitted John Gabriele to perjure himself throughout his assertions of non involvement in drug activity.
25
2. Lines was deprived of his Sixth Amendment right to the assistance of competent counsel at his trial and his right to confront the witnesses against him.
26
3. Lines' counsel's performance at trial fell below the standard of competence required and deprived Lines of his Sixth Amendment rights because:
27
(a) counsel failed to ask for severance of counts;
28
(b) counsel failed to object to hearsay testimony;
29
(c) counsel failed to adopt any theory of defense; and
30
(d) counsel failed to call character witnesses.
31
4. The prosecutor's closing arguments constituted a violation of due process by offering his personal opinions concerning certain testimony.
32
The Commonwealth asked the District Court to dismiss the petition based upon Lines' purported failure to exhaust remedies in state court. The Commonwealth argued that Lines was precluded from obtaining any relief under 28 U.S.C. S 2254 because he had not presented any of his federal habeas claims to the Pennsylvania Supreme Court. The Commonwealth relied in part upon Fiegley v. Fulcomer, 833 F.2d 29 (3d Cir. 1987), to argue that Lines was procedurally barred from federal habeas review because the Superior Court had quashed his appeal, and he could not establish the cause and prejudice that was a condition precedent to obtaining federal habeas relief on his defaulted claims.
33
The District Court referred Lines' habeas petition to a Magistrate Judge who filed a Report and Recommendation recommending dismissal of the habeas petition. The Magistrate Judge reasoned that the Superior Court's application of Pennsylvania's fugitive forfeiture rule did not excuse Lines from presenting his substantive claims to the Pennsylvania Supreme Court. Inasmuch as Lines could not demonstrate cause and prejudice for his failure to present the substance of his claims to the Supreme Court or that a fundamental miscarriage of justice would result from not reviewing his claims, the Magistrate Judge concluded that Lines was not entitled to an adjudication on the merits of his habeas petition.
34
Lines objected to the Report and Recommendation, and argued that the Magistrate Judge's conclusion was inconsistent with our holding in Doctor v. Walters, 96 F.3d 675 (3rd Cir. 1996). The District Court disagreed with both the Magistrate Judge and Lines. The District Court concluded that:
35
it is not entirely clear that the Pennsylvania Supreme Court would not have heard Petitioner's claims, nor that Petitioner was procedurally barred from appealing his claims to the state supreme court. Because [he] has not appealed the issues in the instant petition to the Pennsylvania Supreme Court, the highest state court has not yet had the opportunity to review the merits of the claims Petitioner now raises, and therefore, the Pennsylvania Supreme Court has not been given the chance to correct any alleged error or mistake of the lower state court.
36
Opinion at 8. Under the District Court's interpretation of Doctor, Pennsylvania's fugitive forfeiture rule was not an independent and adequate state rule barring federal habeas review "because it was not firmly established at the time of the alleged waiver that a Pennsylvania court lacked the discretion to hear an appeal first filed after Petitioner had been returned to custody." Id. at 8-9. The court reasoned that "it is possible that the state supreme court would review Petitioner's claims, [and therefore] I must dismiss [the] petition . . . for Petitioner's failure to exhaust his state court remedies." Id. at 12.
37
Lines filed a motion for reconsideration arguing that the District Court had misconstrued Doctor. Lines asserted that Doctor required the court to excuse exhaustion and proceed to the merits of the petition, rather than dismiss the petition for failure to exhaust. According to Lines, exhaustion is excused and the District Court should address his petition on the merits because Doctor held that the fugitive forfeiture rule is not an "independent and adequate" state rule that bars federal habeas relief. Reply at 3-4. On appeal, Lines suggests that any failure to present the merits of his appeal to the Supreme Court must be excused. Lines argues that the Pennsylvania Supreme Court:
38
would not have considered [his underlying claims] until and unless the [Superior C]ourt had considered them and ruled on them. If the Supreme Court had felt, however, that Lines was entitled to have his constitutional issues heard by the Pennsylvania Supreme Court, it could and would have remanded to the Superior Court for consideration in the first instance.
39
(Brief at 8.).5
40
Lines filed a timely notice of appeal from the District Court's denial of his habeas petition, and we granted his request for a certificate of appealability to determine whether the District Court correctly dismissed the petition for lack of exhaustion.6 On appeal, Lines repeats his argument that the District Court should have addressed the merits of his petition because exhaustion must be excused under the circumstances here. Lines contends that since he has already unsuccessfully filed one PCRA petition and a direct appeal, he has no means to exhaust his claims in state court, and the District Court should therefore hear his claims on the merits.
II. DISCUSSION
A. General Principles
41
All claims that a petitioner in state custody attempts to present to a federal court for habeas corpus review must have been fairly presented to each level of the state courts, 28 U.S.C. S 2254(b); O'Sullivan v. Boerckel, 119 S. Ct. 1728, 1734 (1999) ("we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts,"7; Doctor, 96 F.3d at 678. Thus, except as we discuss below, and except for petitions which can be denied on the merits,8 federal courts refrain from addressing the merits of any claim raised by a habeas petitioner that was not properly exhausted in state court, Coleman v. Thompson , 501 U.S. 722, 750 (1991). "The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 856 (3d Cir. 1992). The burden of establishing that such claims were fairly presented falls upon the petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Federal courts will dismiss without prejudice claims that have not been properly presented to the state courts, allowing petitioners to exhaust their claims.
42
Petitioners who have not fairly presented their claims to the highest state court have failed to exhaust those claims. O'Sullivan v. Boerckel. If, however, state procedural rules bar a petitioner from seeking further relief in state courts, "the exhaustion requirement is satisfied because there is `an absence of available State corrective process.' 28 U.S.C. S 2254(b). McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Even so, this does not mean that a federal court may, without more, proceed to the merits. Rather, claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner "establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default." Id. See also Coleman, 501 U.S. at 731.9
B. General Principles Applied To Lines
43
We conclude that Lines did not fairly present any of his claims to the Pennsylvania Supreme Court. Although we agree with Lines that it would now be futile for him to return to state court and attempt to exhaust his claims, we do not agree with him that a federal court may therefore address his claims on the merits. Rather, Lines' claims are procedurally defaulted because he is barred by state law from seeking further review of his claims in state court. Since Lines can not demonstrate cause and prejudice for the default, and since refraining from addressing the merits of his claims will not result in a fundamental miscarriage of justice, his petition should have been dismissed with prejudice. Although Judge Debevoise concludes in his dissent that our holding in Doctor requires that we excuse Lines' default, we conclude that Doctor is inapposite and does not control our analysis here.
C. Lines' Direct Appeal
44
As noted above, Lines raised the following substantive issues in his direct appeal to the Pennsylvania Superior Court:
45
1. Did the attorney for the Commonwealth, in his closing presentation, continuously express his personal opinions of the evidence so as to deprive the appellant of a fair trial?
46
2. Did the Commonwealth commit prosecutorial misconduct in failing to disclose exculpatory evidence concerning its star witness, failing to comply with discovery rules, and failing to correct perjured testimony of the star witness, thus requiring a new trial?
47
3. Was the Defendant-Appellant denied effective assistance of counsel when defense counsel allowed the admittance of hearsay statements without objection, failed to properly prepare for trial and conduct an independent defense investigation, failed to utilize character witness testimony, and failed to develop and present a coherent and cogent theory of defense?
48
Appellant's Brief to the Superior Court at 2. After the Superior Court dismissed Lines' appeal pursuant to Pennsylvania's fugitive forfeiture rule, Lines filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court in which he challenged only the Superior Court's application of the forfeiture rule. His Petition for Allowance of Appeal stated the following two grounds for relief under the heading, "QUESTIONS PRESENTED FOR REVIEW":
49
1. Did the trial court have the discretion to hear the post-trial motions of a defendant who was briefly absent during the pendency of post-trial motions but who was present for all the hearings on the post-trial motions?
50
2. Is a defendant who was a fugitive for a brief time during the pendency of his post-trial motions but present throughout all post-trial hearings and the appeal process, forever barred from appellate review?
51
In the section of the Petition captioned: "CONCISE STATEMENT OF THE CASE," Lines outlined the circumstances of his flight during jury deliberations, his subsequent apprehension, the Commonwealth's Motion to Quash based upon his fugitive status, and the trial court's decision on the merits of his post-verdict claims. In doing so, he stated that he had "asked the [trial] Court to review" the three substantive grounds set forth above, and he reiterated each of those claims.10 However, in the seven and one-half pages in which he set forth his "CONCISE STATEMENT OF REASONS RELIED UPON FOR ALLOWANCE OF APPEAL," Lines presented only his challenge to the Superior Court's application of the fugitive forfeiture rule. He did not set forth any of the substantive claims he had relied upon in his brief to the Superior Court, nor did he discuss his underlying claims at any point in his Petition for Allowance of Appeal.11
52
Rule 1115(a) of the Pennsylvania Rules of Appellate Procedure12 prescribes the proper method for presenting an issue to the Pennsylvania Supreme Court. It states that a Petition for Allowance of Appeal must contain, inter alia:
53
(3) The questions presented for review. . . . The statement of questions presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the opinion, or fairly comprised therein, will ordinarily be considered by the court in the event an appeal is allowed. . . .
54
(5) A concise statement of the reasons relied on for allowance of an appeal. (emphasis added).13 Rule 1115(c) provides:
55
All contentions in support of a petition for allowance of appeal shall be set forth in the body of the petition as provided by Paragraph (a)(5) of this rule. Neither the briefs below nor any separate brief in support of a petition for allowance of appeal will be received, and the Prothonotary of the Supreme Court will refuse to file any petition for allowance of appeal to which is annexed or appended any brief below or supporting brief.
Finally, Rule 1115(d) provides as follows:
56
The failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying the petition.
57
The Pennsylvania Supreme Court strictly adheres to the letter of these rules and will not address claims that are not properly asserted in a Petition for Allowance of Appeal. Commonwealth v. Rush, 522 Pa. 379, 386-387, 562 A.2d 285, 288 (1989), and cases cited therein. The Court has also emphasized that "all claims appellant wishes to raise must be set out in his brief and not merely incorporated by reference." Commonwealth v. Edmiston, 535 Pa. 210, 238 n.3, 634 A.2d 1078, 1092 n.3 (1993). See also Rule 2116(a).
58
As noted above, Lines challenged only the Superior Court's application of the fugitive forfeiture rule in the appropriate section of his Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The trial court's opinion denying Lines' post-trial motions (which include the questions raised in the Superior Court) was appended to the petition, along with Superior Court's opinion. In addition, Lines' "Statement of the Case" in his Petition for Allowance of Appeal listed the questions raised in the Superior Court. However, Lines did not attempt to incorporate the issues discussed by the trial court by reference or otherwise, and the trial court's opinion does not fully state the substance of Lines' legal argument. Furthermore, it is clear that the Pennsylvania Supreme Court would not have addressed Lines' substantive claims if he had merely attempted to incorporate them by reference. See Edmiston, 535 Pa. at 238 n.3 ("Appellant also `incorporates by reference' claims in his post-trial motions as though set forth in his brief at length and requests this court to consider them in terms of ineffectiveness of trial counsel. We refuse to do so in that all claims appellant wishes us to consider must be set out in his brief and not merely incorporated by reference").
59
We therefore, conclude that Lines did not "fairly present" to the Pennsylvania Supreme Court any of the claims he raised on direct appeal.
D. Claims Not Raised on Direct Appeal
60
Lines concedes that his severance claim was not raised on direct appeal; nor was it presented in his PCRA petition. Lines also presents a Confrontation Clause claim in his habeas petition. Although this claim was not expressly raised on direct appeal to the Superior Court, Lines argues that it is subsumed within the hearsay argument which he presented to the Superior Court.14 However, even if Lines' hearsay argument sufficiently presented his Confrontation Clause claim, the hearsay argument, like the rest of his claims on direct appeal, was never fairly presented to the Pennsylvania Supreme Court.
61
In sum, not one of Lines' claims was fairly presented to the Pennsylvania Supreme Court. As a result, he did not exhaust any of his claims. O'Sullivan v. Boerckel, 119 S.Ct. at 1733.
III. Futility and Procedural Default
62
Pursuant to 28 U.S.C. S 2254(b)(1), exhaustion is excused if a return to state court would be futile because of "an absence of available State corrective process[,] or ... circumstances exist that render such process ineffective to protect the rights of the applicant." "Futility" exists where: "a state's highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field," Allen v. Attorney General of Maine, 80 F.3d 569, 573 (1st Cir. 1996); where the state provides no means of seeking the relief sought, Wallace v. Cody, 951 F.2d 1170, 1172 (10th Cir. 1991), Dawan v. Lockhart, 980 F.2d 470, 475 (8th Cir. 1992); or where the state courts have failed to alleviate obstacles to state review presented by circumstances such as the petitioner's pro se status, poor handwriting and illiteracy, Hollis v. Davis, 941 F.2d 1471, 1473-1475, 1479 (11th Cir. 1991), cert. denied, 503 S.Ct. 938 (1992).
63
If an appropriate remedy does not exist or its utilization is frustrated by the state system. . .[t]he deference accorded the state judicial process must give way to the primary role of the federal courts to redress constitutional deprivations. . . . If it appears that the prisoner's rights have become an "empty shell" or that the state process is a "procedural morass" offering no hope of relief, then the federal courts may excuse the prisoner from exhausting state remedies and may directly consider the prisoner's constitutional claims.
64
Hankins v. Fulcomer, 941 F.2d 246, 249-250 (3d Cir. 1991). Accordingly, we have held that exhaustion is not required if there is inordinate delay in state procedures, id. at 250, or if state officials have obstructed the petitioner's attempts to obtain state remedies, Mayberry v. Petsock , 821 F.2d 179 (3d Cir.), cert. denied, 484 U.S. 946 (1987).
65
As we noted in Doctor, "futility" is also established where "exhaustion is not possible because the state court would refuse on procedural grounds to hear the merits of the claims." Doctor, 96 F.3d at 681; Lambert v. Blackwell, 134 F.3d 506, 518-519 (3d Cir. 1997). Lines' assertion of futility here is based upon the unavailability of further state process. We do not excuse exhaustion in this context unless state law clearly forecloses state court review of claims which have not previously been presented to a state court. Toulson v. Beyer, 987 F.2d 984, 988-989 (3d Cir. 1993).
66
If the federal court is uncertain how a state court would resolve a procedural default issue, it should dismiss the petition for failure to exhaust state remedies even if it is unlikely that the state court would consider the merits to ensure that, in the interests of comity and federalism, state courts are given every opportunity to address claims arising from state proceedings.
67
Doctor, 96 F.3d at 681 (emphasis added), see also Lambert, 134 F.3d at 516. The fact that it is merely unlikely that further state process is available is therefore insufficient to establish futility:
68
[I]f we permitted such a prediction to constitute the type of futility which would allow a federal court to excuse exhaustion, we would undermine the exhaustion doctrine. Although exhaustion is often cumbersome, and may appear to require duplicative expenditure of judicial resources on claims that frequently have no merit, the doctrine is premised on firmly entrenched principles of comity. We are not free to disregard those principles for the sake of expediency or occasional efficiency.
69
Gibson v. Scheidemantel, 805 F.2d 135, 141 (3d Cir. 1986). See also Banks v. Horn, 126 F.3d 206, 213 (3d Cir. 1997) (enactment of the Antiterrorism and Effective Death Penalty Act "which overall is intended to reduce federal intrusion into state criminal proceedings, reenforces" that federal courts ought to be reluctant to conclude that resort to state courts would be futile.). Thus, "[i]n questionable cases it is better that the state courts make the determination of whether a claim is procedurally barred." Id . Accordingly, we must determine if we can conclude with certainty that the courts of Pennsylvania would no longer entertain Lines' substantive claims for relief.
70
Lines filed his Petition for Allowance of Appeal more than seven years ago. We think it is obvious that he could not successfully amend a petition that has now been denied for seven years and include within it claims that he could have included when he first filed the petitio.15 Thus, under Pennsylvania law, the only avenue that may be available to Lines is a second petition under the PCRA. Thus, we turn to the provisions of the PCRA to see if Lines can file a second collateral attack in the state courts.16
71
42 Pa. C.S.A. S 9545(b)(1) limits the availability of PCRA relief. It states:
72
Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
73
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim . . . .
74
(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
75
(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.
76
Under section 9545(b)(3), a prior petition becomes final for PCRA purposes "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374, 375 (1999). Under Banks, it is now clear that the one year limitation applies to all PCRA petitions including a second petition, no matter when the first was filed.17
77
Clearly, more than a year has passed since Lines' judgment of conviction became final18 and none of the aforementioned exceptions to the limitations period applies to Lines' claims. He does not allege that improper governmental interference or previously unknown facts prevented him from asserting them in state court in a timely manner, nor does he base his claims upon the assertion of a new constitutional right.
78
Moreover, 42 Pa. C.S.A. S 9543(a)(3) provides that claims raised in a PCRA petition must not have been "previously litigated or waived." Section 9544 defines those terms as follows:
79
(a) Previous litigation. -For purposes of this subchapter, an issue has been previously litigated if: . . .
80
(2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or
81
(3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.
82
(b) Issues waived. -For purposes of th is subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.
83
When Lines filed his first PCRA petition he was represented by counsel other than trial counsel. Therefore, he could have raised the issue of trial counsel's ineffectiveness in failing to move for a severance in his first PCRA petition. See Commonwealth v. Griffin, 537 Pa. 447, 454 (1994) (a claim of ineffectiveness of counsel under the PCRA must be raised at the earliest stage in the proceedings after petitioner is no longer represented by allegedly ineffective counsel). Under Pennsylvania law Lines could attempt to challenge the stewardship of PCRA counsel even though he is not guaranteed the right to counsel to collaterally attack his conviction under the United States Constitution. See Commonwealth v. Albrecht, 554 Pa. 31, 43 (1999) ("we have never found our power of review, and if necessary, remedy deficiencies of counsel at the post-conviction stage circumscribed by the parameters of the Sixth Amendment."). However, the only vehicle for now doing so is a second P.C.R.A. petition. As we noted above, the period for filing such a petition has long since run, and the courts of Pennsylvania therefore no longer have jurisdiction to entertain a successive P.C.R.A. petition. Banks, 726 A.2d at 376 ("the issue . . . is one of jurisdiction. . ."). Accordingly, we conclude that it would be futile for Lines to return to state court in an effort to attempt to bring a second PCRA proceeding raising the unexhausted claims he has included in his federal habeas petition.
84
Thus, although "federal courts should be most cautious before reaching a conclusion dependent upon an intricate analysis of state law that a claim is procedurally barred," Banks v. Horn, 126 F.3d at 213, the aforementioned considerations combine to convince us that Lines is now "clearly foreclosed" from further state court review of his claims. As a result, exhaustion would be futile and is excused. Put another way, based upon the futility of requiring Lines to cure his procedural default, we will consider his claims exhausted because "there are no state remedies available to him." Coleman, 501 U.S. at 732.
85
As noted above, it does not necessarily follow, however, that Lines is entitled to an adjudication of the merits of his unexhausted federal habeas claims merely because it is now futile to attempt to raise them in state court. A finding of futility merely eliminates the procedural pretense of requiring a federal habeas petitioner to return to an unavailable state forum for nonexistent relief. Futility, without more,19 does not mean that the federal courts may proceed to the merits of the petitioner's claims. As the court said in Whittlesey v. Circuit Court for Baltimore County, 897 F.2d 143, 146 (4th Cir.), cert. denied, 498 U.S. 922 (1990) (another escape case):
86
That it may now be "futile" for Whittlesey to await completion of his Florida sentence to challenge his Maryland conviction begs the question of how that futility has come about. The equitable principles governing habeas relief will not permit Whittlesey to create a situation in which seeking state post conviction relief is futile, and then invoke that same futility to avoid the exhaustion requirement.
87
When exhaustion is futile because state relief is procedurally barred, federal courts may only reach the merits if the petitioner makes the standard showing of "cause and prejudice" or establishes a fundamental miscarriage of justice. Caswell, 953 F.2d at 861 (3d Cir. 1992). Unlike the petitioners in Doctor, Toulson, and Lambert, Lines is not asserting his actual innocence or facts that would suggest a "miscarriage of justice" in the context of federal habeas jurisprudence. See Schlup v. Delo, 513 U.S. 298 (1995). Accordingly, we must focus on whether Lines can establish "cause and prejudice" for his default in state court. McCandless, 172 F.3d at 263. See also Caswell, 953 F.2d at 861 (citing Coleman, 111 S.Ct. at 2557 n.1).
IV. Cause and Prejudice
88
The only purported "cause" on this record is prior appellate counsel's failure to raise and fairly present all of Lines' substantive claims in state court. However, that is not sufficient. The "cause" required to excuse a procedural default must result from circumstances that are"external to the petitioner, something that cannot fairly be attributed to him" Coleman, 501 U.S. at 753. "Attorney inadvertence is not `cause' because the attorney is the petitioner's agent when acting or failing to act, in furtherance of the litigation, and the petitioner must `bear the risk' of attorney error. Coleman, 501 U.S. at 753. Lines does not argue that counsel on direct appeal was constitutionally ineffective for failing to present the substance of his claims to the Pennsylvania Supreme Court on direct appeal.20 In fact, he argues that his attorney could not present those claims because the Superior Court never reached them. Given the unique circumstances facing original appellate counsel, that attorney can not be faulted for failing to include Lines' substantive claims in the Petition for Allowance of Appeal. After all, the decision that Lines wanted the Supreme Court to review did not address the merits of his claims. Accordingly, counsel limited Lines' Petition for Allowance of Appeal to the Superior Court's application of the fugitive forfeiture doctrine as that was the basis of the Court's dismissal of his appeal.21 Thus, we are not now charged with evaluating the stewardship of original appellate counsel, or assessing blame for any "dereliction" on his part. Moreover, claims of constitutional ineffectiveness must themselves be exhausted by proper presentation to the state courts and here that was not even attempted. See Murray v. Carrier, 477 U.S. 478, 489 (1986). Thus, Lines has not demonstrated any "cause" for defaulting the claims raised on his direct appeal. Coleman, 501 U.S. at 753.
89
We reach the same conclusion with regard to Lines' severance claim. Lines can not now successfully argue that PCRA counsel was constitutionally ineffective in failing to include a severance claim in his PCRA petition, and he has not argued that counsel was ineffective in failing to raise it on direct appeal.22 Accordingly, we hold that the District Court did not err in dismissing Lines' habeas petition. Although the District Court's analysis differed from ours, the result is the same; although our analysis causes us to modify the District Court's relief.
90
In his thoughtful analysis, our dissenting colleague agrees with the majority's conclusion that it would be futile for Lines to return to state court. However, Judge Debevoise relies upon Doctor to conclude that "the peculiar state of Pennsylvania's fugitive forfeiture rule both at the time Lines committed his crime and at the time he sought review of his conviction. . . ." should excuse the exhaustion requirement. Dissent at 1. The parties also devote a substantial portion of their briefs to discuss the relevance of our holding in Doctor. However, we think that Doctor is inapposite to our analysis of the issues surrounding Lines' habeas petition.
V. Doctor v. Walters
91
Both Lines and the Commonwealth devote a substantial portion of their briefs to arguing whether Pennsylvania's fugitive forfeiture rule is an adequate and independent state ground under our holding in Doctor as applied to Lines.
92
However, despite the parties' focus upon Doctor , we conclude that our holding there is neither controlling nor helpful to the present inquiry; although the facts in Doctor are quite similar to the facts here.
93
Like Lines, Doctor fled during his bench trial on criminal charges. However, the trial court thereafter entered a guilty verdict against Doctor "apparently without conducting any further proceedings or attempting to inform Doctor, his attorney or the Commonwealth about its intention to enter a verdict." 96 F.3d at 678. Lines was not apprehended until five years later, and he was then formally sentenced on the guilty verdict that had been entered when he escaped. Doctor filed a direct appeal, and a state habeas corpus petition. However, the Pennsylvania Superior Court quashed his appeal pursuant to Pa. R. App. P. 1972(6), which allows an appellate court to quash an appeal "because the appellant is a fugitive." The Pennsylvania Supreme Court denied Doctor's Petition for Allowance of Appeal, and the United States Supreme Court denied his petition for a writ of certiorari. However, unlike Lines, Doctor attempted to present his underlying claims on direct appeal to the Pennsylvania Supreme Court as well as his challenges to the Superior Court's application of the fugitive forfeiture rule.23
94
Thereafter, Doctor filed a petition under 28 U.S.C.S 2254 in an attempt to get federal habeas relief from his state court conviction. Doctor's S 2254 petition included a claim that his conviction in absentia violated his Sixth Amendment right to a trial. The District Court dismissed Doctor's petition for failure to exhaust because the Sixth Amendment claim had not been presented in state court. Doctor argued that it was futile to return to state court to raise any unexhausted claims in a PCRA petition because the Pennsylvania courts had already determined that his flight constituted a waiver of his right to appeal, and they therefore would not address any PCRA petition that he might file in an effort to exhaust his Sixth Amendment claim for federal habeas purposes. 96 F.3d at 680.
95
We affirmed the District Court's dismissal based upon the unexhausted claims in Doctor's petition. However, we also noted that Doctor could "resubmit a petition asserting only his exhausted claims." Therefore, "in the interests of judicial economy," we addressed the District Court's conclusion that application of Pennsylvania's fugitive forfeiture rule was an adequate and independent state rule barring federal habeas relief. Id. at 683.
96
We concluded that, under Pennsylvania law, Doctor could seek collateral relief by asserting his Sixth Amendment claim in a PCRA petition, see 42 Pa.C.S.S 954146 (Supp. 1996), because "all avenues of direct appeal are clearly foreclosed." 96 F.3d at 682. However, we recognized that such collateral review was problematic both because he had not raised his Sixth Amendment claim on direct appeal, and because "under the fugitive forfeiture rule[Doctor] waived all rights to have his claims considered." Id. at 681. We noted, however, that Pennsylvania courts allowed for a "limited exception" to the application of the fugitive forfeiture rule when a petitioner could demonstrate either a "miscarriage of justice, which no civilized society can tolerate," or "actual innocence." Id . at 682 (citing Commonwealth v. Lawson, 519 Pa. 504, 549 (1988)). We concluded that the unique and rather bizarre circumstances surrounding Doctor's in absentia conviction were such that we could not conclude with certainty that the Pennsylvania courts would not find a miscarriage of justice. 96 F.3d at 682 ("Doctor alleges facts that could support a finding that `the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate.' ").24
97
Moreover, an examination of Pennsylvania cases established that when Doctor escaped, Pennsylvania courts recognized that they had the discretion to hear an appeal so long as custody of the fugitive-appellant "had been restored before the appellate process was ever initiated," id. at 685-6, as was the case there. Accordingly, we held that Pennsylvania's fugitive forfeiture rule was not an adequate and independent state rule, and that we could not say with certainty that the state courts would turn a deaf ear to Doctor's Sixth Amendment claim. Thus, we dismissed Doctor's petition and allowed him to attempt to exhaust his claim in state court. However, for all the reasons we have noted, it would be futile for Lines to do so. Moreover, Lines does not argue (nor can he) that our failure to address the merits of his claim would create the substantial risk of a miscarriage of justice that we found in Doctor .
VI. Conclusion
98
Accordingly, for the reasons set forth above, we conclude that the District Court did not err in dismissing Lines' federal habeas petition; and we will affirm, but modify, the District Court's order by dismissing the petition with prejudice.
Notes:
1
Honorable Dickinson R. Debevoise, United States District Court for the District of New Jersey, sitting by designation.
2
This is not to suggest that anyone other than Lines himself is responsible for much of the complexity here. It is his own conduct that has prevented him from getting the review he has been seeking in the state and federal courts. As will be seen from our discussion, his flight during the course of his jury trial tossed a procedural monkey wrench into subsequent proceedings in both state and federal court.
3
Inasmuch as we must identify the issues Lines has raised in state court with precision in order to properly resolve this appeal, we set forth verbatim the "Questions Presented" section of the brief he filed with the Superior Court on direct appeal. See Brown v. Cuyler, 158-160 (3d Cir. 1982) (we scrutinize the relevant pleadings and briefs to determine if a petitioner fairly presented his or her claim in state court).
4
Judge Johnson filed a dissenting opinion that foreshadowed a change the Pennsylvania Supreme Court would subsequently make in the fugitive forfeiture rule. He argued that the majority ought not to have applied a per se forfeiture rule under the circumstances surrounding Lines' appeal. Judge Johnson stated:
I am unable to glean any support for the proposition that an appellate court cannot review an appeal where the defendant was a fugitive prior to appeal where the trial court did not dismiss post trial motions. . . . The cases relied on by the Majority fail to support either that a trial court must dismiss a defendant's post-trial motions if the defendant becomes a fugitive, or that this court has no power to hear an appeal from a judgment of sentence rendered against a defendant who was a fugitive prior to appeal where the trial court has not dismissed his post-trial motions.
Commonwealth v. Lines, 415 Pa. Super. at 447-448, 609 A.2d at 836837 (Johnson, J., dissenting). Despite his disagreement with the majority, Judge Johnson would still have denied Lines relief, because he concluded Lines' claims were meritless.
5
Lines cites Wiegand v. Wiegand, 461 Pa 482, 337 A.2d 256 (1975), and Paull v. Paull, 384 Pa. 2, 119 A.2d 93 (1958). However, these cases merely stand for the proposition -irrelevant here -that courts should not decide sua sponte issues not raised, briefed and argued by the parties.
6
We have jurisdiction under 28 U.S.C. SS 1291 and 2253; our review is plenary, Doctor v. Walters, 96 F.3d at 678.
7
In Boerckel, the Court held that a petitioner had to present claims forming the basis of his federal habeas petition to the Illinois Supreme Court even though Illinois (like Pennsylvania) had only a discretionary review of intermediate appellate court decisions and was apparently rather selective about the cases it actually reviewed. There, the petitioner had unsuccessfully attempted to argue a miscarriage of justice under Schlup v. Delo, 513 U.S. 298, (1995), by presenting evidence that he claimed showed that two others were actually responsible for the crime he had been convicted of. 119 S.Ct. at 1731.
8
Pursuant to 28 U.S.C. S 2254(b)(2), a habeas corpus petition "may be denied on the merits, notwithstanding the failure of the applicant to exhaust" available state remedies.
9
The considerable confusion swirling around habeas review of state convictions is exacerbated by the interrelationship of procedural default and exhaustion. See Coleman v. Thompson, 501 U.S. at 732 ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies `available' to him"); McCandless, 172 F.3d at 263 ("because McCandless is procedurally barred from asserting these claims in state court, his claims are considered exhausted due to procedural default"); Grey v. Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991) (because petitioner's claims would be procedurally barred by state law, no purpose would be served by making him return to state court; thus, "we hold that petitioner no longer has `remedies available' . . . and that he has met the statutory exhaustion requirements for presenting a habeas petition to the federal courts").
10
Petition for Allowance of Appeal at 3-4.
11
See Petition for Allowance of Appeal at 6-13.
12
The effective date of this version of Rule 1115, which is still current, was June 2, 1979.
13
We emphasize "ordinarily" because the wording of Rule 1115(a) clearly suggests that, in an appropriate case, an appellant may include issues other than those relied upon by the Superior Court in the "CONCISE STATEMENT OF REASONS RELIED UPON FOR ALLOWANCE OF APPEAL" portion of a Petition for Discretionary Review to Pennsylvania's Supreme Court. Therefore, we conclude that Lines had an opportunity to include his substantive claims in his Petition for Allowance of Review under the unique circumstances of his case.
14
The Confrontation Clause is made applicable to the states through the Fourteenth Amendment and provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI.
15
See Caswell, 953 F.2d 853, 861 (3d Cir. 1992).
16
Pennsylvania has recently modified the fugitive forfeiture rule, and escape no longer results in an automatic forfeiture of one's right to appeal a conviction, or to file a petition under the PCRA. See In re. J.J., 540 Pa. 274, 656 A.2d 1355, 1362-1363 (1995). However, in Commonwealth v. Huff, 540 Pa. 535, 658 A.2d 1340 (1995), the Pennsylvania Supreme Court limited the retroactive application of new rules of law to cases pending at the time the new rule is announced. Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983); Commonwealth v. Selby, 547 Pa. 31, 688 A.2d 698, 700 (1997). The Court has clearly stated that new interpretations of law are "not to be interpreted to mean that once a decision has been made at the final stage of appeal, . . . that decision is subject to review, forevermore, should the law be changed." Commonwealth v. Ahearn, 357 Pa. Super. 404, 407, 516 A.2d 45, 46 (1986). Lines' appeal became final three years before J.J. and Huff were decided, and Lines can not now obtain the benefit of those decisions in the courts of Pennsylvania. Moreover, in Commonwealth v. Deemer, 550 Pa. 290 (1997), the Supreme Court held that fugitives stand in the same position as appellants who have not absconded. Thus,
a fugitive who has returned to the jurisdiction of the court should be allowed to exercise his post-trial rights in the same manner he would have done had he not become a fugitive. . . . In short, a fugitive who returns to court should be allowed to take the system of criminal justice as he finds it upon his return.
550 Pa. at 295-6 (emphasis added). Thus, the Pennsylvania Supreme Court would not give Lines the benefit of the change in the law even if Lines could somehow once again challenge the Superior Court's application of the fugitive forfeiture doctrine to him.
17
In Banks, the Pennsylvania Supreme Court held that the time restrictions for seeking relief under Pennsylvania's Post Conviction Relief Act are jurisdictional. Prior to Banks there was some doubt as to the proper scope and application of the one year limitations period under the amended PCRA. In Commonwealth v. Thomas, 718 A.2d 326, 1998 WL 648515 (Pa. Super. September 16, 1998), the Superior Court expressly rejected two possible interpretations of this period of limitations: that a second or subsequent PCRA petition is timely if the first PCRA petition was filed by January 16, 1997, one year after the effective date of the 1995 amendments; and that all second or subsequent PCRA petitions are timely so long as the first PCRA petition was filed either one year before or one year after the effective date of the 1995 amendments. The court stated instead, "we hold that it was the intention of the legislature to permit an otherwise untimely first PCRA petition to be filed within one year following the effective date of the 1995 PCRA amendments, but that exception was not intended to apply to subsequent petitions regardless of when a first petition was filed." Id . at *3.
Moreover, the Pennsylvania Supreme Court has now clearly stated that the PCRA is the only method of seeking review of a conviction after direct appeal, and that common law writs that were previously available under state law have been subsumed within the PCRA. See Commonwealth v Ahlborn, 548 Pa. 544, 549 ("The PCRA specifies that it is the sole means of obtaining collateral relief and that it supersedes common law remedies.")
18
Since Lines apparently did not seek certiorari to the United States Supreme Court, the judgment against him became final ninety days after October 28, 1992, the date on which the Pennsylvania Supreme Court denied Lines' petition for allowance of appeal. See Commonwealth v. Perry, 716 A.2d 1259, 1261 (Pa. Super. 1998).
19
Typically, failures by the state: inordinate delay, failure to provide adequate remedies, and the like. See, e.g., Allen, Wallace, Hollis, Mayberry, and Hankins, supra.
20
Inasmuch as a defendant is entitled to counsel on direct appeal, a successful challenge to the effectiveness of counsel's representation on direct appeal under Strickland can establish the necessary cause to excuse a procedural default. Coleman, 501 U.S. at 754 ("Where a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the state, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to the state interests that federal habeas review entails.")
21
This is not to suggest that counsel could not have included the substantive issues in his Petition for Allowance of Appeal. As we noted above, Doctor attempted exactly that when he appealed the Superior Court's application of the fugitive forfeiture rule although it appears that Doctor included his substantive claims in his brief, and that the substantive issue he briefed -a due process violation -did not fairly present his subsequent assertion that "a trial in absentia was never held." 96 F.3d at 680. As noted above, merely including a claim in the brief to the Supreme Court is not sufficient to fairly present the claim. However, we note what occurred in Doctor to contrast Doctor's appeal with Lines' appeal.
22
Moreover, as noted above, that claim of ineffectiveness would it self have to be presented to the state courts in the first instance. Murray, supra.
23
We nevertheless concluded that Doctor had not fairly presented all of his substantive claims to the Pennsylvania Supreme Court because, although the brief that accompanied his Petition for Allowance of Appeal asserted a denial of his "Constitutional right to due process," we concluded that he had not adequately alleged "that a trial in absentia was never held," 96 F.3d at 680, as alleged in his federal habeas petition.
24
In his S 2254 petition, Doctor claimed: "No record of trial of Absentia said to have been held on Aug. 29th 1986--I was not convicted in a court of law--I was never told on record or otherwise I was found guilty --I was never given any appeal rights before or after sentencing. No attorney is on record to have represented me in the mysterious absentia trial held--the trial transcripts in my case stop on page 129 at which time case was continued generally." Doctor , 96 F.3d at 679.
DEBEVOISE, Senior District Judge, dissenting:
99
I have no quarrel with the majority opinion's thorough analysis of federal law governing exhaustion, futility and cause and prejudice or with their analysis concerning Lines's right to further review of his constitutional claims under Pennsylvania procedural law. It is my view, however, that these analyses are largely irrelevant in the present case. By reason of the peculiar state of Pennsylvania's fugitive forfeiture rule both at the time Lines committed his crime and at the time he sought review of his conviction (i) exhaustion was excused from the outset because state law foreclosed review of any of his claims and (ii) flight did not constitute a procedural default requiring a cause and prejudice review. The reasoning of Doctor v. Walters, 96 F.3d 675(3d Cir. 1996) compels this result.
100
The majority opinion sets forth the governing law:
101
Petitioners who have not fairly presented their claims to the highest state court have failed to exhaust those claims. O'Sullivan v. Boerckel. If, however, state procedural rules bar a petitioner from seeking further relief in state courts, "the exhaustion requirement is satisfied because there is `an absence of available State corrective process.' 28 U.S.C. S 2254(b). McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Even so, this does not mean that a federal court may, without more, proceed to the merits. Rather, claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner "establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default." Id. See also Coleman, 501 U.S. at 731.
Slip Op. at 159-60. (Footnote omitted.)
102
Lines became a fugitive on October 10, 1986 and was convicted in absentia. He was apprehended on December 21, 1986, pursued post-verdict motions and was sentenced to life imprisonment on July 19, 1991. Thereafter, as recited in the majority opinion, he pursued his appeal to the Pennsylvania Superior Court, his Petition for Allowance of Appeal to the Pennsylvania Supreme Court (denied October 28, 1992), his PCRA petition (filed March 31, 1993) and unsuccessful appeals from denial of the PCRA petition.
103
During and after the time frame encompassed by these proceedings Pennsylvania's fugitive forfeiture rule, as interpreted by Pennsylvania's Supreme Court, went through a series of transformations. The applicable procedural rule, Pa. R. App. P. 1972(6), provides in relevant part that "any party may move: . . . (6) [t]o continue generally or to quash because the appellant is a fugitive. . . ." In Doctor this court had occasion to determine the manner in which the Pennsylvania Supreme Court construed this rule as of June 24, 1986, the date when Doctor had fled from his criminal trial. Lines fled on October 10 of the same year, and there is nothing to suggest that Pennsylvania's law on the subject changed during the less than four months interval between his and Doctor's flights. The state of the law at relevant times was critical in Doctor, and for the same reasons it is critical in the present case.
104
Doctor had submitted a mixed habeas corpus petition, containing exhausted and unexhausted claims. Following the dictate of Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed.2d 379 (1982), this court affirmed the district Court's dismissal of the petition. The district court, however, had dismissed the petition not only on failure to exhaust grounds. It also found that the Pennsylvania courts' refusal to consider the merits of Doctor's direct appeals based on the fugitive forfeiture rule constituted application of an independent and adequate state procedural rule. Doctor's failure to comply with that rule constituted a procedural default, requiring dismissal of the habeas petition since he had not shown cause and prejudice. Anticipating that Doctor might file a new petition containing only exhausted claims and that he would again be faced with the procedural default contention, this court addressed the merits of that defense.
105
A habeas petitioner is entitled to federal review of a procedurally defaulted claim only if he can demonstrate cause for the procedural default and prejudice resulting there from. Doctor, 96 F.3d at 683. However,"[a] state rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claim only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Id. at 683684.
106
Doctor analyzed two pre-1986 Pennsylvania Supreme Court decisions applying the fugitive forfeiture rule. Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975) (There was no basis to dismiss a formerly fugitive defendant's appeal because he was in custody when the case was actually argued and would therefore be subject to the jurisdiction of the court and thus responsive to any judgment entered) and Commonwealth v. Passaro , 504 Pa. 611, 476 A.2d 346 (1984) (Petition of defendant who absconded during appeal to reinstate appeal after recapture denied). Doctor also noted that after Galloway and prior to 1986 Pennsylvania's intermediate courts consistently recognized their discretion to hear a properly filed appeal as long as the criminal defendant had returned to the jurisdiction before the appeal was dismissed.
107
Based on this review of the state of Pennsylvania law as it existed in 1986, this court held that as of that date "it was not `firmly established' that Pennsylvania courts lacked the discretion to hear an appeal first filed after custody had been established," and consequently "the state courts in this case did not rely on an `adequate' procedural rule to deny petitioner a review of his appeal on the merits." Doctor, 96 F.2d at 686. In these circumstances Doctor was not required to establish cause and prejudice in the event he filed a habeas petition containing only exhausted claims.
108
In 1992 the Pennsylvania Supreme Court firmly closed the door to any appeals by a fugitive defendant, stating:
109
A defendant's voluntary escape acts as a per se forfeiture of his rights of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant's capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant has forever forfeited his right to appeal.Commonwealth v. Jones, 530 Pa. 536, 541, 610 A.2d 439, 441 (1992). This was the state of the law when the Superior Court held that the trial court erred in failing to quash Lines's post-verdict motions and that Lines had "forever forfeited his right to appeal by electing to become a fugitive after post-trial procedures have begun." Commonwealth v. Lines, 415 Pa. Super. 438, 443, 609 A.2d 832, 834, allocatur denied, 532 Pa. 662, 618 A.2d 983 (1992). It was the state of the law when the Supreme Court denied Lines's Petition for Allowance of Appeal.
110
Subsequently the Pennsylvania Supreme Court again revisited the fugitive forfeiture rule, holding that the sanction for absconding must be a reasonable response to a defendant's flight, and there must be some rational link between the flight and the appellate process to justify imposing a forfeiture on a defendant. In re J.J. , 540 Pa. 274, 656 A.2d 1355 (1995); Commonwealth v. Huff , 540 Pa. 535, 658 A.2d 1340 (1995). Pennsylvania's rule limiting retroactive application of new rules of law to cases pending at the time the new rule is announced precluded and still precludes Lines from taking advantage of this change in the law.
111
Whether Lines is confronted with a procedural default and must establish cause and prejudice must be determined on the basis of Pennsylvania's fugitive forfeiture rule as it existed in 1986 when he became a fugitive. As stated in Doctor, "We must decide whether[the fugitive forfeiture rule] was firmly established and regularly applied, not in 1993 when the Supreme Court relied on it, but rather as of the date of the waiver that allegedly occurred when Doctor escaped in 1986" at 684. As recited above, in 1986 when Lines escaped the fugitive forfeiture rule was not firmly established and regularly applied. Consequently, his petition is not subject to a procedural default defense based on the fugitive forfeiture rule and he is not required to establish cause and prejudice.
112
On the other hand, when Lines sought relief from his conviction in the state courts Pennsylvania law had changed. By that time the fugitive forfeiture rule, as interpreted by the Supreme Court, had become an impenetrable barrier to relief of any sort in the state courts. Not only were an appeal and a PCRA petition futile, there was a total absence of available state corrective process of any sort.1 In these circumstances exhaustion is excused and Lines must be permitted to assert in a habeas petition both the grounds he raised in his abortive appeal to the Superior Court and the ineffective assistance of counsel claim based on the failure of trial counsel to move for severance which he did not raise in any Pennsylvania court.
113
The same impenetrable barrier prevailed when Doctor sought relief in the state courts. In his case, however, this court detected a small chink in this barrier, namely, an appeal or a PCRA petition in which the once fugitive petitioner seeking relief from a waiver "can demonstrate a `miscarriage of justice, which no civilized society can tolerate.' " Doctor, 96 F.2d at 682. This court rejected Doctor's futility contention stating "[w]e cannot conclude that there is no chance that the Pennsylvania courts would find a miscarriage of justice sufficient to override the waiver requirements and permit review under PCRA." Id. at 683. Doctor contended that lack of a trial even in absentia violated his Sixth Amendment rights. This court opined that the Pennsylvania courts might consider this a miscarriage of justice claim which would override a fugitive forfeiture waiver. It would follow that had this court not found that Doctor's unexhausted claim asserted miscarriage of justice, it would have concluded that it would have been futile to require him to return to the Pennsylvania courts and exhaustion would have been excused.
114
In the present case Lines does not assert any claims which might be characterized as a "miscarriage of justice, which no civilized society can tolerate." Thus the reasoning of Doctor compels the conclusion that exhaustion was excused in the present case because it would have been futile to require that Lines exhaust state remedies.2
115
It is my view that it is unnecessary to determine the extent to which Lines raised his various claims in one or another of his abortive state court proceedings. From the outset under the Pennsylvania Supreme Court's then prevailing application of the fugitive forfeiture rule, Lines had no right to appeal or to post conviction relief of any sort. The fact that he did seek state court relief is of no moment. It was all an exercise in futility which he had no obligation to pursue. In these circumstances he should be permitted to assert in the district court all the claims set forth in his S 2254 petition.
116
For the reasons set forth above I dissent from the majority opinion.
Notes:
1
See 28 U.S.C. S 2254(b)(1):
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that(A) the applicant has exhausted the remedies available in courts of the State; or (B)(i) there is an absence of available State corrective process;
or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(Emphasis added.)
2
In Doctor, the petitioner had in fact sought to present his other federal claims to the Pennsylvania Superior and Supreme Courts, only to have them dismissed on the basis of the fugitive forfeiture rule. Thus there was no need for this court to consider whether failure to have raised those non-miscarriage of justice claims in the state courts would have been excused as futile. After the Pennsylvania Supreme Court changed its interpretation of the fugitive forfeiture rule to make its application discretionary, failure of a fugitive to exhaust his state remedies could no longer be excused on futility grounds.
| {
"pile_set_name": "FreeLaw"
} |
719 So.2d 100 (1998)
STATE of Louisiana
v.
William Edward SELF, Sr., DefendantAppellant.
No. CR98-39.
Court of Appeal of Louisiana, Third Circuit.
August 19, 1998.
Don M. Burkett, Many, for State.
Paula C. Marx, Lafayette, for William Edward Self, Sr.
Before THIBODEAUX, SAUNDERS and WOODARD, JJ.
WOODARD, Judge.
On August 2, 1996, defendant, William Edward Self, Sr., was charged by a grand jury indictment with one count of aggravated rape of a child under twelve years of age, a violation of La.R.S. 14:42. Defendant entered a plea of not guilty to the charge on August 22, 1996. After a trial by jury held April 14-17, 1997, defendant was found guilty as charged. The trial court sentenced defendant, on October 23, 1997, to life imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence. Defendant appeals his conviction, alleging three assignments of error. We reverse and remand for a new trial.
FACTS
The trial court found that the defendant had raped his daughter, who was age eleven at the time of trial, over an extended period of time. The bill of indictment alleges that defendant raped her between June 1995 and March 1996. However, specific dates were not established at trial.
ASSIGNMENTS OF ERROR
Defendant alleges:
1. The trial court erred in charging the jury that the verdict in this case could be by a vote of ten out of twelve, rather than unanimously, as required *101 for a case that may be capital under La.Code Crim.P. art. 782.
2. The trial court erred in accepting a verdict of eleven to one in this case when a case that may be capital requires all to concur under La.Code Crim.P. art. 782.
3. The verdict herein fails to meet the legal standard for sufficiency of the evidence.
LAW
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We note that the record indicates the possibility of an error patent regarding whether the jury was properly sequestered; however, the record before us is ambiguous on this issue. While this possibility poses concern, we need not resolve this issue at this time, as we find a reversal and remand are warranted on other grounds.
ASSIGNMENT OF ERROR NUMBER 3SUFFICIENCY OF THE EVIDENCE
In this assignment, defendant challenges the sufficiency of the evidence to support his conviction. In accordance with State v. Hearold, 603 So.2d 731 (La.1992), we must address this assignment first. As discussed below, we find the defendant's claim of insufficiency is without merit.
The only element challenged by defendant is whether anal or vaginal sexual intercourse occurred. Defendant alleges the following:
In this case, the State failed to prove beyond a reasonable doubt that anal or vaginal sexual intercourse occurred. During the investigation, [P.S.] only described improper "touching" by her father. (Rec. P. 101, 121) Debra Waters, Office of Community Services, testified that [P.S.] never said anything about genital contact, and it was not until after the medical examination that they believed genital contact had occurred. Joann Carter, a juvenile officer with the Sabine Parish Sheriff's Office, stated she knew of no occasion where [P.S.] has said there was genital contact between her and her father. (Rec. P. 123) Claudia Triche, a social worker, testified that [P.S.] states that her father touched her private parts and that he climbed on top of her and she has never told me anything other than that. (Rec. P. 145, 153)
There was physical evidence of abuse; however, Dr. Ann Springer, indicated that she could not testify as to what caused the penetration. (Rec. P. 137-138, 140). Prior to trial, [P.S.] described only "touching." It was not until trial that [P.S.] answered, "Yes" when asked, "Did he ever put his private part together with yours?" (Rec. P. 132) A reasonable doubt exists as to whether or not sexual intercourse occurred. The state has failed to prove the essential elements of the crime beyond a reasonable doubt. Accordingly, the conviction should be reversed.
The evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our Jackson review established that the victim testified that defendant touched her private part with his, that defendant was the only one who touched her privates. Dr. Ann Springer, a pediatrician, who specialized in child abuse, testified that the victim's vagina had been penetrated. The state satisfactorily proved the required element of penetration. As previously stated by this court, "[a]ny penetration, however slight, of the aperture of the female genitalia, even its external features, is sufficient." State v. Bertrand, 461 So.2d 1159, 1161 (La. App. 3 Cir.1984), writ denied, 464 So.2d 314 (La.1985).
This assignment of error lacks merit.
ASSIGNMENTS OF ERROR NUMBERS 1 & 2THE NUMBER OF VOTES FOR THE VERDICT
In assignment of error number 1, the defendant claims that the trial court erred in instructing the jury that they were required to reach a verdict of ten out of twelve rather than a unanimous verdict as required for capital cases under La.Code Crim.P. art. 782.
*102 In assignment of error number 2, the defendant claims that the trial court erred in accepting the jury's non-unanimous verdict of eleven to one. For the foregoing reasons, these errors require reversal of the conviction and remand for a new trial.
At trial, the trial court noted it planned to instruct the jury that the verdict required was ten of twelve. Defense counsel lodged his objection, arguing that State v. Lott required a unanimous verdict. No citation was given for Lott. The state responded that it had waived the option of pursuing the death penalty.
La.Code Crim.P. art. 782 provides in pertinent part:
A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.
(Emphasis added).
In State v. Goodley, 398 So.2d 1068, 1071 (La.1981), the supreme court held "that a unanimous jury is required in a case where the defendant is being prosecuted under an unamended charge of first degree murder, a capital offense, to render any verdict, notwithstanding the fact that the state may have stipulated that it would not seek the death penalty." The court reasoned:
The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which much concur to render a verdict. As stated above, La. Const. of 1974 Art. I, § 17 and C.Cr.P. art. 782 provide in pertinent part:
A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.
Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for the conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.
Id. at 1070-1071. Finding the defendant's conviction invalid, the court set aside the defendant's conviction and sentence, and remanded the case for a new trial.
The court in Goodley distinguished State v. Jones, 385 So.2d 786 (La.1980), based on the fact that Jones dealt with an offense wherein the death penalty had been declared unconstitutional. The court in Goodley distinguished Jones as follows:
However, Jones is distinguishable from the case under consideration because Jones involved a situation where the death penalty provision had been declared unconstitutional, whereas here the death penalty provision is valid and enforceable, making first degree murder "a criminal case in which the punishment may be capital."
Id. at 1071, n. 4.
The state submits two arguments in support of finding Goodley distinguishable. First, the state argues that defendant should not have been exposed to the death penalty because the death penalty did not become available until two and one-half months after defendant's conduct began. Our review of the record reveals that it is not clear in the present case whether the conduct at issue *103 occurred before or after the death penalty provision for aggravated rape became effective. The indictment charges defendant with committing an aggravated rape upon the victim between June of 1995 and March of 1996. However, the testimony at trial does not establish any dates. The victim testified that the conduct occurred more than once and occurred over a long period of time:
Q. And you said this happened more than once?
A. Yes.
Q. Do you remember overwas this over ahow long had this been going on,...?
A. A long time.
Q. Okay. Now, when we say a long time, are we talking about like a week or a month or more than a month or a year or day or whathow long are we talking about as best you can tell?
A. More than a month.
Q. Would it have been more than two months?
A. Yes.
Q. What about more than maybe six monthsthat's a half a year?
A. Yes.
The death penalty provision for aggravated rape became effective in August of 1995. It is clear from this testimony that, although the conduct may have occurred before August 1995, it also occurred after August 1995. Thus, the death penalty was applicable.
Second, the state argues that Goodley and all the cases which have applied Goodley are homicide cases wherein a verdict was rendered for the charged offense or a lesser included offense and that the homicide statutes provide the state with an alternative billing to first degree murderi.e., second degree murder, which is punishable by life imprisonment. However, in the case of an aggravated rape, there is no alternative billing. In Goodley, the court stated, "if the state does not want to meet the unanimous verdict requirement mandated in prosecutions of capital crimes, it can re-charge the defendant with a non-capital crime." Id. at 1071. As argued by the state, such an option is not available to a district attorney, charging a defendant with aggravated rape. We find that the state's distinction is not persuasive, particularly in view of the legislative mandate of La.Code Crim. P. art. 782, and as we determined above that the defendant was legally subject to the death penalty because of the Wilson decision, the holding of Goodley is applicable to these facts.
Finally, we note that the penalty provision for aggravated rape, La.R.S. 14:42, was amended in the 1997 legislative session to provide as follows:
D. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
(1) However, if the victim was under the age of twelve years, as provided by Paragraph A(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.
It appears from this amendment that the legislature intended to overrule Goodley in aggravated rape cases. However, since this amendment was not in effect either at the time the offense was committed in the present case, nor at the time of trial, it is not applicable to the present defendant.
Under the law applicable at the time of the defendant's trial, La.Code Crim.P. art. 782 and Goodley, the trial court erred. Defendant is entitled to a new trial.
*104 CONCLUSION
Defendant's conviction and sentence for aggravated rape of a person under twelve years of age is reversed and set aside. The matter is remanded to the district court for a new trial.
REVERSED AND REMANDED.
THIBODEAUX, J., concurs and assigns written reasons.
THIBODEAUX, Judge, concurring.
I concur that the procedural error noted by the majority requires a reversal and a remand for a new trial. However, I add these comments to note my disagreement with the discussion of the sufficiency of the evidence. The majority cites State v. Hearold, 603 So.2d 731 (La.1992) in justifying the need for this discussion. The majority misreads State v. Hearold.
State v. Hearold deals with evidentiary issues revolving around the admission of inadmissible evidence. In this particular case, there is no such dispute. While the dispute revolves around a procedural error, the procedural error focuses on the number required to reach a guilty verdict. State v. Hearold does not require a discussion of the sufficiency of the evidence under these circumstances. State v. Hearold says:
When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime will be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, it is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been a trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
Id. at 734.
There was absolutely no issue regarding the introduction of inadmissible evidence in this case. Inappropriate discussion of sufficiency of the evidence leads one to believe that this court has already decided the guilt of the accused, absent any considerations of inadmissible evidence, even before the retrial of the accused. That is highly unnecessary and inappropriate under the circumstances of this case. State v. Hearold does not stand for the proposition that every trial error requires a discussion of sufficiency of the evidence.
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126 S.E.2d 590 (1962)
257 N.C. 572
Rufus L. DUDLEY
v.
W. Lonnie STATON and wife, Bettie Ruth Staton.
No. 101.
Supreme Court of North Carolina.
July 10, 1962.
*591 Blount & Taft by Fred T. Mattox, Greenville, for respondent appellants.
Lewis G. Cooper and Louis W. Gaylord, Jr., Greenville, for petitioner appellee.
PARKER, Justice.
The Constitution of North Carolina adopted 24 April 1868 contains the following words:
ARTICLE X, "§ 6. Property of married women secured to them. The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried."
A one sentence amendment to this section adopted by a vote of the people of the State at a general election held 8 September 1956, giving a married woman the right to exercise powers of attorney conferred upon her by her husband, including power to execute and acknowledge deeds to property, is not relevant to this appeal.
The power conferred by Article X, section 6, of the 1868 Constitution upon married women in this State to devise and bequeath their real and personal property as if they were unmarried is confirmed by statute, G.S. § 52-1, in the same words as set forth in the constitutional section. *592 This constitutional power conferred upon married women is further confirmed by statute. G.S. § 52-8 provides that "every married woman 21 years of age or over has power to devise and bequeath her real and personal estate as if she were a feme sole; and her will shall be proved as is required of other wills." This statute, except for the words "21 years of age or over," was enacted by the General Assembly at its 1871-72 session, and appears in Public Laws of North Carolina, session 1871-72 in Chapter 193, section 31.
The General Assembly at its 1959 session enacted a statute, which appears in the 1959 Session Laws of North Carolina in Chapter 880 (codified in the 1959 Cumulative Supplement to Recompiled Vol. 2A of G.S. as sections 30-1, 30-2, and 30-3), and is entitled "AN ACT TO REWRITE THE STATUTES ON DISSENT FROM WILLS." Section 30-1(a) of this statute, and as it is codified, provides: "Except as provided in subsection (b) of this Section, any surviving spouse may dissent from his or her deceased spouse's will." Section 30-2 of the statute, and as it is codified, provides as to the time and manner of dissent. Section 30-3 of the statute, and as it is codified, provides as to the effect of a dissent. Subsection (a) provides that "upon dissent as provided for in G.S. 30-2, the surviving spouse, except as provided in subsection (b) of this Section, shall take the same share of the deceased spouse's real and personal property as if the deceased had died intestate," with a proviso that if the deceased spouse is not survived by a child, children, or any lineal descendant of such, or by a parent, the surviving spouse shall receive only one-half of the deceased spouse's estate, which one-half shall be determined before any federal estate tax is deducted or paid, and shall be free of such tax. Subsection (b) provides that whenever the surviving spouse is a second spouse, as here, he or she shall take only one-half of the amount provided by the Intestate Succession Act for the surviving spouse if the testator has surviving him lineal descendants by a former marriage, as here, but there are no lineal descendants surviving him by the second or successive marriage. Subsection (c) provides: "If the surviving spouse dissents from his or her deceased spouse's will and takes an intestate share as provided herein, the residue of the testator's net estate, as defined in G.S. 29-2, shall be distributed to the other devisees and legatees as provided in the testator's last will, diminished pro rata unless the will otherwise provides." Emphasis ours. The statute provides that it shall become effective on 1 July 1960, and shall be applicable only to estates of persons dying on or after 1 July 1960.
Eva Staton Harris Dudley, the testatrix here, died on 14 February 1961. The parties have stipulated that none of the exceptions set forth in G.S. § 30-1, subsection (b), exist, which would prevent petitioner from filing a dissent. It is admitted that on 1 May 1961, and within the time and in the manner prescribed by G.S. § 30-2, petitioner filed a dissent from the will of his deceased wife. The parties have further stipulated that the four parcels of realty described in the petition were acquired by the testatrix subsequent to the year 1868.
The General Assembly at its 1961 session enacted a statute, which appears in the 1961 Session Laws in Chapter 959 (codified in the 1961 Cumulative Supplement to Recompiled Vol. 2A of G.S. as sections 30-1, 30-2, and 30-3), and is entitled "AN ACT TO AMEND CHAPTER 30 OF THE GENERAL STATUTES RELATING TO SURVIVING SPOUSES." Section 30-1 of the 1959 Act, and as it is codified, was rewritten to read as follows: "§ 30-1. Right of dissent.(a) A spouse may dissent from his deceased spouse's will in those cases where * * *." The statute then sets forth in detail the cases in which a dissent may be filed. The 1961 Act became effective on 1 July 1961. It seems certain from the pleadings, admissions, and stipulations here that nothing exists as set forth in the 1961 Act, which would prevent petitioner from dissenting from his deceased *593 wife's will, if she had died after 1 July 1961. G.S. § 30-2 of the 1959 Act, and as it is codified, as to time and manner of dissent was rewritten. If petitioner's wife had died after 1 July 1961, petitioner's dissent complies with this section as rewritten. G.S. § 30-3 of the 1959 Act, and as it is codified, was not rewritten, but merely amended as to a part of subsection (a), and that as to the proviso therein.
The 1961 Act did not repeal the right given by the 1959 Act to a husband to dissent from his deceased spouse's will, though it more elaborately defines the circumstances when he may dissent, and did not repeal the provisions of subsection (a) of section 30-3 of the 1959 Act, and as it is codified, that "upon dissent as provided for in G.S. 30-2, the surviving spouse, except as provided in subsection (b) of this section, shall take the same share of the deceased spouse's real and personal property as if the deceased had died intestate," though it amended the proviso, and it did not change the provisions of subsections (b) and (c) of the 1959 Act, and as it is codified.
The question for decision here is this: Do the provisions of G.S. §§ 30-1, 30-2, and 30-3, insofar as they give a husband a right in certain cases to dissent from his deceased wife's will, and to take a specified share of his deceased wife's real and personal property, whereby the residue of his deceased wife's net estate, as defined in G.S. § 29-2, shall be distributed to the devisees and legatees, as provided in her last will, diminished pro rata by the share taken by the husband, violate the provisions of Article X, section 6, of the North Carolina Constitution? The answer is, Yes.
The Court in a scholarly opinion, written by Judge Gaston, who was one of the most eminent jurists who ever sat upon this Court, said in Newlin v. Freeman, 23 N.C. 514:
"By the common law of England, after the conquest, lands could not be devised; but the Statute of Wills, 32 H. VIII., ch. 1, explained, because of abundant caution, by Stat. 34 H. VIII, ch. 5, enacted that all persons seized in fee simple (except femes covert, infants, idiots, and persons of nonsane memory) might devise to any other person, except bodies corporate, twothirds of their land held in chivalry, and the whole of those holden in socage. This was the law brought over to this country by our ancestors, and, as all tenures here before the Revolution were by free and common socage, this power of devising applied to all lands within the colony. Many laws have since the Revolution been enacted by our Legislature on the subject of devises, but none extending or abridging the power of tenant in fee simple, such as it existed at the Revolution. A married woman, neither in the country of our ancestors nor with us, ever had capacity to devise. It is true that she might by means of a power, properly created, appoint a disposition of her real estate after death, which power must be executed, like the will of a feme sole, and is subject very much to the same rules of construction. But the act, if good, is valid as an appointment under a power, and it is not a devise; for to hold it such would be to give to a married woman a capacity which she did not possess at common law and which no statute has conferred upon her."
The General Assembly at its Session of 1844-45, it would seem as a result of the decision in Newlin v. Freeman, enacted a statute set forth in Chapter LXXXVIII, subsection VIII, Public Laws of North Carolina from 1844 to 1847, as follows:
"That when any married woman, under any will, deed, settlement, or articles, shall have power, by an instrument in nature of a will, to appoint or dispose of any property, real or personal, and she shall have executed, or shall execute any such instrument, the same may be admitted to probate in the proper Court of Pleas and Quarter *594 Sessions, or may be proved originally in a Court of Equity, upon a proper bill for that purpose; and either mode of probate shall be conclusive as to the due execution thereof."
This subsection was codified in Rev.Code, Ch. 119, sec. 3.
Article X, section 6, of the 1868 State Constitution completely abolished the general doctrine of the common law that as to property husband and wife are in legal contemplation but one person, and the husband is that one, and made very material and far-reaching changes as to the rights respectively of husband and wife in respect to her property, both real and personal, and enlarged her power in respect to and control over her property. Walker v. Long, 109 N.C. 510, 14 S.E. 299; 41 C.J.S. Husband and Wife § 5a. This section of the State Constitution established for a married woman the ownership and control of all her property, real and personal, as her sole and separate estate and property, and further provided that it shall not be liable for any debts, obligations, or engagements of her husband. It further established for a married woman that she could devise and bequeath all her property as if she were unmarried, and with the written assent of her husband conveyed by her as if she were unmarried.
In Walker v. Long, supra, the Court held, inter alia, that the common law estate of the husband as tenant by the curtesy initiate in the lands of his wife was abolished by section 6, Article X of the 1868 State Constitution. Chief Justice Merrimon writing the opinion for the Court said in respect to this constitutional provision:
"This provision is very broad, comprehensive, and thorough in its terms, meaning, and purpose, and plainly gives and secures to the wife the complete ownership and control of her property, as if she were unmarried, except in the single respect of conveying it. She must convey the same with the assent of the husband. It clearly excludes the ownership of the husband as such, and sweeps away the commonlaw right, or estate, he might at one time have had as tenant by the curtesy initiate."
In Perry v. Stancil, 237 N.C. 442, 75 S.E. 2d 512, the Court held "that the limitation upon the right of a married woman to convey her real property, contained in Art. X, sec. 6, of the Constitution, applies only to conveyances executed by her to third parties, that is, persons other than her husband." This decision does not abridge the wife's rights, but enlarges them.
In Tiddy v. Graves, 126 N.C. 620, 36 S.E. 127, (1900), the Court held, inter alia, that "it is clear that under the present constitution there is no curtesy, after the death of the wife, in property which she has devised." The opinion written by Clark, J., after quoting extensively from Walker v. Long, supraa part of which we have quoted abovethen says:
"This is necessarily so, as the separate estate remains the wife's during coverture with unrestricted power to devise and bequeath it. With this explicit provision in the Constitution, no statute and no decision could restrict the wife's power to devise and bequeath her property as fully and completely as if she had remained unmarried.
"The plaintiff insists that curtesy in the husband of the whole of the wife's realty is the correlative of dower in the wife of one-third of the husband's realty, and, if the Legislature can confer dower it can retain curtesy. That is true, when the feme covert dies intestate, as is pointed out in Walker v. Long, supra; but the constitution having guarantied that a married woman shall be and remain sole owner of her property with unrestricted power to devise it, the legislature cannot restrict it. Blackstone justly says that no one has the natural right to dispose of any *595 property after death. The power to do so is conferred by law, and varies in different countries. In England it did not exist after the Conquest, till the statute of wills, (32 Hen. VIII). Of course, as the legislature confers the right to devise, in the absence of constitutional inhibition it can repeal or restrict the power of devise; and, till the Constitution of 1868, which gave a married woman the unrestricted power to devise and bequeath her property as if unmarried, the limitation of such power could be made by legislation allowing curtesy as well as dower. If the constitution had gone further and provided that the property rights of a married man should remain as if he were single, and expressly conferred the unrestricted right to devise his realty, then, certainly, when he had devised it in fee there could be no right of dower. The legislature could only prescribe for dower in realty not devised, as it can now only confer curtesy in realty not devised."
The learned dean of the Law School of Trinity College, now Duke University, states in his Law Lectures, Vol. 1, p. 371, (1916):
"They [married women] had no power to make any will in this state prior to the constitution of 1868, except when such a power was given them in some instrument by which property was vested in them; but they could make testamentary dispositions of their property with the consent of their husbands, and if the husband had agreed, by marriage settlement, that the wife should have this right, he could not revoke such agreement * * But now, married women can devise and bequeath their separate estates just as though they were femes sole; and an act of the legislature attempting to forbid their devising their lands so as to deprive their husbands of an estate by the curtesy, is unconstitutional." Dean Mordecai cites in support of the last sentence quoted Article X, section 6, of the present Constitution; Walker v. Long, supra; Tiddy v. Graves, supra; Rev., secs. 3112, 2102, 2098; Hallyburton v. Slagle, 132 N.C. 947, 44 S.E. 655; Watts v. Griffin, 137 N.C. 572, 50 S.E. 218.
Walker v. Long and Tiddy v. Graves we have above discussed and quoted from. Revisal sec. 3112 stated: "A married woman owning real or personal property may dispose of the same by will." Revisal sec. 2102 is in respect to an estate by the curtesy. The Intestate Succession Act, enacted by the 1959 General Assembly, and applicable only to estates of persons dying on or after 1 July 1960, abolished the estates of curtesy and dower. 1959 Session Laws of North Carolina, Chapter 879, sec. 1codified G.S. § 29-4 in the 1959 and 1961 Cumulative Supplement to Recompiled Volume 2A of G.S. Revisal 2098 (now G.S. § 52-8) we have quoted above, including the words "21 years of age or over" inserted by the 1953 amendment. Hallyburton v. Slagle and Watts v. Griffin hold that since the 1868 Constitution a married woman may by will deprive her husband of curtesy in her separate estate.
Petitioner relies upon the case of Flanner v. Flanner, 160 N.C. 126, 75 S.E. 936, (1912), which he contends is controlling here. In that case it was contended by defendant that section 3145 of the 1905 Revisal, which provides that "children born after the making of the parent's will and where parent shall die without making any provision for them, shall be entitled to such share and proportion of such parent's estate as if he or she had died intestate," is unconstitutional, in that it deprives a married woman of the right to dispose of her property by will as if she were unmarried, as provided in Article X, section 6, of the State Constitution of 1868. The Court said:
"Under the principles of the common law as understood and allowed to prevail in this state, the subsequent birth *596 of a child did not of itself amount to revocation of a testator's will. McCay v. McCay, 5 N.C. 447. That case presented at nisi prius in Rowan county at October term, 1808, seems to have attracted the attention of the Legislature, and at November session following a statute was enacted, regulating the subject and in terms substantially similar to the provision as it now appears in Revisal 1905, § 3145."
The Court in its opinion, after stating that defendant's contention cannot be upheld, because the contention involves a misconception of the meaning of Article X, section 6, of the 1868 Constitution, as applied to the facts of the present case, says:
"The section referred to, after providing that the property of a married woman acquired before marriage, and all to which she may become entitled afterwards, shall remain her sole and separate estate, etc., continues as follows: `And may be devised and bequeathed and, with the written assent of her husband conveyed by her as if she were unmarried.' This right to dispose of property by will is a conventional, rather than an inherent, right, and its regulation rests largely with the Legislature, except where and to the extent that same is restricted by constitional inhibition. Thomason v. Julian, supra [133 N.C. 309, 45 S.E. 636]; 1 Underhill on Wills, p. 1; 2 Blackstone, Comm., pp. 488-492.
"Being properly advertent to this principle, a perusal of the section relied upon will disclose that its principal purpose, in this connection, was to remove to the extent stated, the common-law restrictions on the right of married women to convey their property and dispose of same by will, and was not intended to confer on them the right to make wills freed from any and all legislative regulation. The right conferred is not absolute, but qualified."
The case of Thomason v. Julian holds a will of a father expressly excluding the children of the testator born after the execution thereof makes a provision for them within the meaning of The Code, sec. 2145, and such children do not share in the estate as though the testator had died intestate. Article X, section 6, of the present Constitution had no application, and is not mentioned in the case. 1 Underhill on Wills, p. 1; 2 Blackstone Common., pp. 488-492 make no reference to our constitutional provision here, or any one of similar import.
When the opinion in the Flanner case was filed, the writer of the opinion in Tiddy v. Graves, supra, was Chief Justice. Why that case and Walker v. Long, supra, were not mentioned in the Flanner case, we can never know. Article X, section 6, of our present Constitution expresses as directly, plainly, clearly, unambiguously, and explicitly as words can that "the real and personal property of any female in this State * *, shall be and remain the sole and separate estate and property of such female, * * and may be devised and bequeathed, * * by her as if she were unmarried." It seems perfectly clear and plain to us that these words used by the framers of our present Constitution plainly and explicitly and directly and unambiguously show an intention on their part not only to remove the incapacity of a married woman to dispose of her property by will, but also to write into the Constitution that a married woman could dispose of her property by will as if she were unmarried, so as to put it beyond the power of the General Assembly to restrict, or abridge, or impair, or destroy such right, and that they did so effect their intent by the words they used. It is difficult, if not impossible, to conceive of any words that the framers of our present Constitution could have used to express such an intent and purpose more directly, plainly, clearly, unambiguously, and explicitly. We are not convinced by the reasoning in the Flanner case that this constitutional right of a married woman to dispose of her *597 property by will is not absolute, but qualified so that the General Assembly can impair or abridge it; if the General Assembly can impair or abridge it, the General Assembly can destroy it. Even if we concede that the statement in Tiddy v. Graves, supra, "with this explicit provision in the constitution [Article X, section 6], no statute and no decision could restrict the wife's power to devise and bequeath her property as fully and completely as if she had remained unmarried," is obiter dictum, it is sufficiently persuasive to be followed here. 21 C.J.S. Courts § 190, p. 314. The decision and the reasoning in the Flanner case are not controlling here.
The Court has held that there is no constitutional inhibition on the power of the Legislature to declare where and how the wife may become a free trader, because Article X, section 6, of the 1868 Constitution "was not intended to disable, but to protect her." Hall v. Walker, 118 N.C. 377, 24 S.E. 6. It has also been held by this Court that where a husband has abandoned his wife, she may convey her property without his consent under C.S. 2530 and that such statute was not inhibited by Article X, section 6, of the 1868 Constitution, for the reason this section of the Constitution "was not intended to disable, but to protect her." Keys v. Tuten, 199 N.C. 368, 154 S.E. 631. Clearly, these cases, and others of similar import, are plainly distinguishable from the instant case, because the statutes we are considering giving to a surviving husband the right, in certain cases, to dissent from his deceased wife's will, and thereby to take a specified share of her property, diminish her estate disposed of by her will to that extent, and restrict and abridge her constitutional power to dispose of her property by will as if she were unmarried: this is not a protection of, but an abridgment of her constitutional right.
Under all the facts here petitioner owns no interest in the four tracts of land described in the petition, and devised by his deceased wife in her last will to her son W. Lonnie Staton, pursuant to the right given her by Article X, section 6, of our present Constitution. When this case is certified down to the superior court, it will enter a judgment reversing the judgment below, and dismissing the case.
Reversed.
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514 A.2d 408 (1986)
Christopher BOWE, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Submitted: April 29, 1986.
Decided: September 2, 1986.
Gregg E. Wilson, Asst. Public Defender, Office of the Public Defender, Wilmington, for appellant.
Timothy J. Donovan, Jr., Deputy Atty. Gen., Dept. of Justice, Wilmington, for appellee.
Before CHRISTIE, C.J., HORSEY and WALSH, JJ.
In this appeal from his conviction for second degree attempted robbery and resisting arrest, the defendant claims that he was denied due process of law by prosecutorial misconduct in the form of impermissible cross-examination at trial. We agree that, in one respect, the prosecutor's cross-examination infringed upon the defendant's right to post-arrest silence and accordingly reverse the conviction and remand for a new trial.
I
The facts underlying the charges against the defendant are not complicated. The complaining witness, John McClendon, an elderly man who was personally acquainted with the defendant, claims that the defendant accosted him on the street, knocked him to the ground and unsuccessfully attempted to remove money from the victim's coat. A plain clothes policeman quickly responded to the incident, and apprehended the defendant after a three block chase. The defendant testified at trial that McClendon had spit on the defendant and, *409 after an exchange of words, threatened to cut the defendant with a knife. The defendant responded by pushing McClendon to the ground, but denied that he had attempted to rob him. There were no independent eyewitnesses to the event and there is some indication that McClendon had been drinking at the time of the altercation.
The defendant testified to his version of the incident and during the course of cross-examination the following colloquy occurred:
Q. You have been incarcerated since this incident on the 12th of December, 1984?
A. Yes.
Q. Because you can't raise the bail?
A. Yes.
Q. When did you know approximately that you were charged with the attempted robbery in the first degree?
A. From the police station.
Q. Right. When you were arrested, right?
A. Yes.
Q. But according to you, this wasn't no robbery, right?
A. Right.
Q. So, you are sitting down in where, Gander Hill?
A. Yes.
Q. From the 12th of December?
A. Yes.
Q. To the present time?
A. (The defendant nodded his head in the affirmative.)
Q. Pending this trial here for robbery or attempted robbery first degree?
A. Yes.
Q. Did you make any efforts to contact the Governor of the State concerning, you know, this injustice that you were being held on a charge that you had nothing to do with?
A. No, I haven't.
MR. WILSON: Objection, Your Honor. The Governor has never interceded in any of my cases.
THE COURT: Objection sustained.
Following an unreported sidebar conference, the jury was excused and defense counsel moved for a mistrial on the ground that the prosecutor's line of questioning was "totally irrelevant" and "highly prejudicial" because it emphasized the defendant's pretrial incarceration. The trial judge denied defense counsel's motion for a mistrial but did give a cautionary instruction to the jury to disregard the fact of the defendant's "whereabouts" since the day of the defendant's arrest.
After his conviction, the defendant filed a motion for a new trial which was denied on the ground that the curative instruction was sufficient to cure any prejudice against the defendant. The court also noted that a problem arose because "the cross-examination of the defendant with reference to his version of events led almost inevitably to questioning of his status. The situation which developed was of the defendant's own making and not something initiated by the prosecutor."
On appeal, the defendant has renewed his objection to the prosecutor's questioning. He contends that the cross-examination was not only an improper emphasis on the fact of his pretrial incarceration but was also an attempt to impeach his trial testimony by calling attention to his pretrial silence a fundamental constitutional right.
II
We first address the question posed and preserved by defense counsel's objection during trial: whether the prosecutor's questions relating to the defendant's pretrial incarceration were so egregious as to warrant the sanction of a mistrial. Defendant contends that the deliberate reference to his four month pretrial incarceration so prejudiced him in the eyes of the jurors that the presumption of innocence was weakened beyond the curative effect of the trial judge's instruction to disregard such reference.
*410 It has long been the practice in Delaware to require that a defendant not be exhibited to the trial jury when handcuffed and to permit, to the extent feasible, the defendant to wear non-prison garb. Brookins v. State, Del.Supr., 354 A.2d 422, 425 (1976). The obvious purpose for this practice is to insure that the jury will not construe the defendant's pretrial incarceration as a suggestion that he is dangerous or insinuate that the defendant is incarcerated on other charges. Commonwealth v. Keeler, 216 Pa.Super. 193, 264 A.2d 407 (1970). The fact of pretrial incarceration is entirely irrelevant to the issue of guilt and evidence to that effect may not, in the first instance, be presented by the State.
Here, although the prosecutor's questioning of the defendant had the effect of emphasizing the defendant's incarceration, we are satisfied that the prompt sustaining of the objection by the trial judge followed by his curative instruction to the jury effectively blunted the possible prejudice to the defendant. The trial judge is in the best position to assess whether a mistrial should be granted, and may exercise his discretion in deciding whether to grant a mistrial. Absent an abuse of that discretion, the appellate court will not disturb the trial judge's decision. Thompson v. State, Del. Supr., 399 A.2d 194 (1979). We are satisfied that the trial judge did not abuse his discretion here.
III
The prosecutor's line of questioning that placed before the jury the fact of the defendant's incarceration is also the basis for the second part of defendant's appeal. The defendant contends that the prosecutor's inquiry as to why the defendant did not contact the Governor "concerning * * * this injustice" constituted an impermissible comment on the defendant's right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State argues that this claim of error was not raised at the trial level and thus may not be raised on appeal. Even if the issue were properly posed in this Court, the State argues that the prosecutor's reference to the defendant's pretrial silence under the circumstances, in the absence of a showing that the defendant had previously invoked his right to silence under Miranda, is not reversible error.
Although defense counsel at trial raised a timely objection to the prosecutor's questioning, the articulated basis for the objection was the prosecutor's improper reference to incarceration not the attempted impeachment of the defendant through mention of the defendant's post-arrest silence. The trial court sustained the objection and provided a curative instruction focusing only on the incarceration aspect of the prosecutor's questioning. In the absence of a timely objection, a claim of improper impeachment is not subject to review at the appellate level unless such conduct constitutes plain error. Jenkins v. State, Del.Supr., 305 A.2d 610, 613 (1973); Supreme Court Rule 8.
In order to secure review under the plain error exception, the error complained of must so clearly prejudice the rights of a defendant as to jeopardize the integrity of the trial process. Wainwright v. State, Del.Supr., 504 A.2d 1096, 1100 (1986); Dutton v. State, Del.Supr., 452 A.2d 127, 146 (1982). Moreover, where the claimed error relates to the admissibility of evidence there must be a reasonable likelihood that the error was result determinative. Wainwright, 504 A.2d at 1100. In this case there were no independent eyewitnesses to the altercation between the defendant and the alleged victim. Thus the jury was asked to choose between two conflicting and uncorroborated versions of the incident. In this context impeachment assumes a critical role and to the extent the prosecutor's questioning subjected the defendant to improper impeachment it had the potential to affect the outcome of the trial. Such tactics implicate due process considerations and clearly jeopardize the fairness of the trial process. We accordingly conclude that the defendant is entitled *411 to review of the claim of improper impeachment notwithstanding his failure to assert this claim at trial.
Although the defendant argues that the prosecutor's questions were an infringement upon his right to remain silent under Miranda, we take a narrower view of the question and resolve it on State law grounds. In so doing we adopt the rationale of the United States Supreme Court in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). In Hale, the Supreme Court, in the exercise of its supervisory power over federal courts, reasoned that evidence of silence during police interrogation is so ambiguous that it lacks significant probative value and must therefore be excluded. Reference to such insolubly ambiguous conduct for purpose of contrast with later exculpatory testimony at trial is fraught with prejudice. Thus, the risk of confusion is so great that it upsets the probative value of the evidence, and such evidence should be excluded. Id. at 178, 95 S.Ct. at 2137.
The Supreme Court noted that many reasons often influence a defendant's decision to remain mute. A defendant's failure to offer an explanation could as easily be taken to indicate reliance on his right to remain silent as to support an inference that the explanatory testimony was a fabrication. Accordingly, the Supreme Court held that it may be prejudicial error for the trial court to permit cross-examination of the defendant concerning his silence during police interrogation. Id. at 182, 95 S.Ct. at 2139.
Furthermore, Delaware law clearly recognizes that the State may not comment on a defendant's exercise of the right to remain silent. Shantz v. State, Del.Supr., 344 A.2d 245, 246 (1975). In Shantz, the prosecution inquired of a State's witness whether he had attempted to interview the defendant. Upon prompt objection, the inquiry was ended and the jury appropriately instructed. While declining to find error, this Court nonetheless noted that the question should not have been asked even though it was not part of a pattern of questioning.
In this case, the prosecutor's questioning was neither brief nor preliminary but was part of a deliberate and extended line of questioning in which the defendant's pretrial silence was highlighted through ridicule. Such prosecutorial overreaching is incompatible with the process due all defendants in a criminal trial under the constitution of this State. Del. Const. art. I § 7; Goddard v. State, Del.Supr., 382 A.2d 238 (1977). We find such tactics improper and beneath acceptable standards of prosecutorial conduct. See Hughes v. State, Del.Supr., 437 A.2d 559, 571 (1981).
The State argues that the disputed cross-examination of the defendant is within the ambit of permissible questioning recently sanctioned by this Court in Jensen v. State, Del.Supr., 482 A.2d 105 (1984). Jensen is factually distinguishable. The cross-examination of the defendant in Jensen dealt almost entirely with the defendant's pre-arrest silence, with only one reference to post-Miranda or post-arrest conduct in the form of "volunteered information beyond the prosecutor's question." Id. at 117. Moreover, the holding in Jensen tested prosecutorial conduct under the defendant's Fifth Amendment rights secured by the United States Constitution as applied in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) which posit a defendant's post-arrest silence on proof a receipt of Miranda warnings. As previously noted, we premise our determination of error on State, not federal, grounds of due process. Moreover, we decline to adopt a ruling which confers an advantage upon the State in cross-examination by reason of the failure of police to afford a defendant his Miranda warnings.
Finally, we note that the trial judge did recognize the prosecutor's improper line of questioning but his specific caution to the jury was simply to "disregard the fact of [the defendant's] whereabouts." We recognize *412 that the trial judge's instruction was responsive to the objection regarding incarceration and we do not expect the trial judge to attempt to cure unarticulated objections. The impression formed by the jury concerning the defendant's post-arrest silence was not addressed by counsel or the court but we do not agree with the trial judge's post-trial comment that the objectionable cross-examination of the defendant was "not something initiated by the prosecutor." Our view of the record clearly leads to the conclusion that the prosecutor's impeachment was a deliberate and purposeful attempt to emphasize the defendant's post-arrest silence. In view of the obvious prejudicial effect of that impeachment, we conclude that the conviction which followed cannot be upheld.
REVERSED and REMANDED for a new trial.
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676 F.2d 418
82-1 USTC P 9338
UNITED STATES of America, Plaintiff-Appellee,v.Daryl RIEWE, Defendant-Appellant.
No. 80-1611.
United States Court of Appeals,Tenth Circuit.
April 22, 1982.
Cecil A. Hartman, Englewood, Colo., for defendant-appellant.
Richard A. Stacy, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., for plaintiff-appellee.
Before BARRETT, McKAY and LOGAN, Circuit Judges.
PER CURIAM.
1
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
2
Daryl Riewe seeks review of a district court order finding him in contempt of court for failing to appear at a hearing where he was to show cause why a summons issued by the Internal Revenue Service (IRS) should not be enforced. The district court ordered Riewe confined in the county jail for a period of thirty days with the provision that he could purge himself of the contempt sanction by providing the records sought by the IRS summons. When reviewing a district court's finding of contempt, we are limited to determining whether the court abused its discretion. V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 226 (10th Cir. 1979).
3
On August 22, 1979, an IRS summons was served on Riewe directing him to appear before the IRS to testify and to provide for inspection specifically delineated books, records, and other papers. He refused to comply with this summons, and the IRS sought enforcement in the district court pursuant to the provisions of I.R.C. §§ 7402(b) and 7604. On March 18, 1980, Riewe was served with a court order requiring him to appear before the United States magistrate and show cause why the summons should not be enforced. He did not appear at the summons enforcement proceeding. The magistrate proceeded with the case, heard the evidence of the IRS, and recommended to the district court that the summons be enforced and Riewe be held in contempt for failure to appear. The district court then ordered Riewe to show cause why he should not be held in contempt. Riewe appeared at the district court's hearing held on May 14, 1980. That court heard Riewe's testimony and considered the magistrate's recommendations; it concluded that the IRS summons was issued for a proper civil tax determination purpose and that Riewe had failed to show good cause for not appearing at the IRS summons enforcement proceeding. The court held Riewe in contempt and ordered him confined under the conditions noted above. However, the court did not order enforcement of the summons.
4
If the IRS has issued a summons to appear and produce documents, and the taxpayer then does not appear, the IRS has three options. It can seek an order of contempt from the district court, I.R.C. § 7604(b); Reisman v. Caplin, 375 U.S. 440, 448-49, 84 S.Ct. 508, 513, 11 L.Ed.2d 459 (1964); it can criminally prosecute the witness, I.R.C. § 7210 (nonappearing witness subject to fine of up to $1,000 and one year in prison); or it can ask the district court to enforce the summons, id. §§ 7402(b), 7604. If, as here, the IRS asks the district court to enforce the summons, the court will order the taxpayer to show cause why the summons should not be enforced. See Donaldson v. United States, 400 U.S. 517, 520-21, 91 S.Ct. 534, 537, 27 L.Ed.2d 580 (1971). At the enforcement hearing the taxpayer may challenge enforcement of the summons on any appropriate ground, Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513, 11 L.Ed.2d 459 (1964), and the district court will determine whether the taxpayer's objections have merit.1 Id. at 446, 84 S.Ct. at 512. If the district court orders the summons enforced, the taxpayer may appeal. If the taxpayer has not appealed or the appellate court has upheld enforcement, and the taxpayer still refuses to comply, then the court may issue an order to show cause why the taxpayer should not be held in contempt for failing to comply with the summons. A taxpayer's failure to show cause at that stage will justify the entry of a civil contempt order. See United States v. Carroll, 567 F.2d 955, 957 (10th Cir. 1977).
5
In the instant case the court did not order taxpayer jailed for failing to comply with the summons, but for failing to show good cause why he had not been present at the summons enforcement proceeding. A district court has broad discretion in using its contempt power to require adherence to court orders. Given the circumstances of this case, the district court's desire to impress Riewe with the seriousness of his nonappearance is understandable. Riewe failed completely to respond to the IRS summons. The first order to show cause why the summons should not be enforced was not timely served because the IRS had been unsuccessful in eight attempts to serve Riewe-apparently he was purposefully evading service. Although the second show cause order was served upon Riewe, he neither filed a written response nor appeared before the magistrate as the order required. Finally, after the court issued a bench warrant and set an appearance bond, Riewe appeared before the court to show cause why he should not be held in contempt for failing to appear at the enforcement hearing. The contempt hearing transcript is not part of the appellate record, but the courtroom clerk's record of the hearing notes that both Riewe and an IRS agent testified. From the appellate briefs we infer that Riewe testified he believed the original IRS summons and the district court order to show cause why the summons should not be enforced were invalid. From the district court's finding in the contempt order that Riewe "still refuses" to divulge information or produce records concerning his receipt of taxable income for 1975-78, we infer the district court afforded Riewe another opportunity to comply with the IRS summons at the contempt hearing or at least asked Riewe if he would comply. Justifiably the district court found that Riewe's nonappearance had been willful.
6
Nonetheless, we think that in this case the district court abused its discretion in imposing civil contempt and imprisoning Riewe. Contempt power should not be used when a court order was issued solely to afford a taxpayer an opportunity to show why the IRS summons should not be enforced.2 If the taxpayer fails to appear and present any defenses to the summons, the IRS petition followed by a show cause order should be treated like a complaint, United States v. Pritchard, 438 F.2d 969, 971 n.4 (5th Cir. 1971), and if the IRS establishes a prima facie case, the only consequence of the taxpayer's failure to appear should be enforcement of the IRS summons. If the district court orders the summons enforced and the taxpayer still refuses to comply, contempt proceedings with the possibility of imprisonment conditioned upon disclosure are warranted.
7
REVERSED and REMANDED for proceedings consistent with this opinion.
1
Appropriate defenses include (1) the summons was issued after the IRS had recommended criminal prosecution to the Department of Justice, United States v. La Salle National Bank, 437 U.S. 298, 318, 98 S.Ct. 2357, 2368, 57 L.Ed.2d 221 (1978); (2) the summons was issued in bad faith, id. at 313; United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964); (3) the materials sought are already in the possession of the IRS, id.; and (4) the materials sought by the IRS are protected either by the attorney-client privilege, Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513, 11 L.Ed.2d 459 (1964), the work-product doctrine, Upjohn Co. v. United States, 449 U.S. 383, 397-402, 101 S.Ct. 677, 686-689, 66 L.Ed.2d 584 (1981), or other traditional privileges or limitations, see United States v. Euge, 444 U.S. 707, 714, 100 S.Ct. 874, 880, 63 L.Ed.2d 141 (1980). Although no blanket Fourth or Fifth Amendment privileges against testifying or producing documents are recognized, see United States v. Carroll, 567 F.2d 955, 957 (10th Cir. 1977), the taxpayer may assert those rights in response to specific questions asked or specific documents sought by the IRS. See Russell v. United States, 524 F.2d 1152, 1153 (8th Cir. 1975); United States v. Theep, 502 F.2d 797, 798-99 (9th Cir. 1974); United States v. Awerkamp, 497 F.2d 832, 835-36 (7th Cir. 1974); United States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969)
2
Documents attached to the first IRS petition for enforcement indicate that notwithstanding the court's order to appear, Riewe could choose not to appear. The attachments included a blank "certification of waiver of appearance" whereby Riewe could waive his right to appear at the enforcement proceeding. Although the certificate was not included with the second show cause order served on Riewe, the absence of a blank certificate does not affect Riewe's ability to waive his right to appear
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603 So.2d 26 (1992)
BUENA VIDA TOWNHOUSE ASSOCIATION and Continental Loss Adjusting Co., Appellants,
v.
Joseph PARCIAK, Jr., Appellee.
No. 91-2574.
District Court of Appeal of Florida, First District.
July 15, 1992.
*27 John P. Moneyham of McConnaughhay, Roland, Maida, Cherr & McCranie, P.A., Panama City, for appellants.
Barry Silber of Myrick, Silber & Davis, P.A., Pensacola, for appellee.
ALLEN, Judge.
The employer/carrier appeal a workers' compensation order by which the claimant was awarded various benefits, including payment for attendant care provided by a family member. We conclude that the parties have not shown any reversible error, although we find it necessary to address the rate of pay for the family member's attendant care.
Prior to the enactment of chapter 88-372, Laws of Florida, an award of attendant care provided by a family member required payment at the prevailing market rate for such services. See e.g., Pascual v. Pan American Hospital, 528 So.2d 478 (Fla. 1st DCA 1988); Southland Corp. v. Anaya, 513 So.2d 203 (Fla. 1st DCA 1987). However, chapter 88-372 altered this rule, providing instead that:
The value of nonprofessional attendant or custodial care provided by a family member shall be determined as follows:
1. If the family member is not employed, the per hour value shall be that of the federal minimum wage.
2. If the family member is employed and elects to leave that employment to provide attendant or custodial care, the per hour value of that care shall be at the per hour value of such family member's former employment, not to exceed the per hour value of such care available in the community at large.
This enactment, now contained in section 440.13(2)(h), Florida Statutes (1991), was in effect during the periods in which attendant care was provided to the claimant.
The claimant's family member provided attendant care which was properly determined to be compensable. Although the family member was otherwise employed and found it necessary to alter the circumstances of her employment, she was able to provide such care without reducing the hours of her employment. The employer/carrier contend that payment should be made at the minimum wage, because the family member did not elect to leave her employment. However, section 440.13(2)(h)1 authorizes a minimum wage award only when the family member is not employed. See Winn Dixie Stores, Inc. v. King, 579 So.2d 313 (Fla. 1st DCA 1991). But section 440.13(2)(h)2 authorizes an award at the family member's former rate of pay only when the family member elects to leave the former employment. Therefore, the circumstances of the present case are not encompassed by either of these provisions.
In Artigas v. Winn Dixie Stores, Inc., 578 So.2d 356 (Fla. 1st DCA 1991), where a family member was able to provide care without relinquishing outside employment, a minimum wage award was partly upheld, but the opinion notes that the rate of pay was not at issue on appeal. In Hunter v. Hernando Co. Bd. of Co. Comm'r, 578 So.2d 798 (Fla. 1st DCA 1991), where the rate of pay was at issue, language in the opinion suggests that a family member would not be required to leave outside employment to be compensated at the rate of pay being earned in such employment. But this suggestion in Hunter was merely dicta, and unnecessary to the holding in that case. Upon consideration of the issue in the present case, we conclude that in enacting chapter 88-372 the legislature altered the existing law only as to the two specific instances addressed therein. Insofar as the family member in the present case does not fall within either of those categories, the existing case law remains unchanged and the employer/carrier is obligated to pay for the family member's services at the prevailing market rate.
The award in the present case was made at the family member's rate of pay in her outside employment. Section 440.13(2)(h)2 *28 indicates that such payment may not be awarded in excess of the prevailing market rate. The parties do not contend, and the record does not suggest, that the payment awarded in the present case exceeds market rate. The employer/carrier have therefore failed to demonstrate any reversible error in this regard, and the appealed order is accordingly affirmed.
SHIVERS and MINER, JJ., concur.
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534 F.2d 719
In re JANUARY 1976 GRAND JURY.Edward M. GENSON, Attorney at Law, Witness-Appellant,v.UNITED STATES of America, Appellee.
No. 76-1065.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 24, 1976.Decided March 29, 1976.Rehearing and Rehearing En Banc Denied May 18, 1976.
Sam F. Adam, Chicago, Ill., for witness-appellant.
Samuel K. Skinner, U. S. Atty., Jeffrey J. Kent, Asst. U. S. Atty., Chicago, Ill., for appellee.
Before PELL, TONE and BAUER, Circuit Judges.
PELL, Circuit Judge.
1
This is an appeal from an order of the district court dated January 15, 1976, adjudging appellant, an attorney, in civil contempt and ordering him to be remanded to the custody of the Attorney General "until such time as he shall purge himself of this contempt or the discharge of the January 1976 Grand Jury, whichever comes first." The appeal raises questions concerning the scope of the Fifth Amendment testimonial privilege and the standing of an attorney to invoke that privilege on behalf of his clients, and the scope of the attorney-client privilege. Other claimed violations of constitutional rights are asserted.
I. STATEMENT OF FACTS
2
On December 30, 1975, between 9:00 and 9:30 A.M., the Bellwood Savings and Loan Association of Bellwood, Illinois, was robbed of approximately $6,120.00 by a man and a woman. Investigators from the Federal Bureau of Investigation uncovered information leading to the identification of two suspects, Paul Bijeol and Sharon Kay Holloway, and a complaint and warrant were sworn and issued on December 31, 1975, naming these two suspects.
3
Investigation and interview disclosed that Bijeol had been in the employ of Edward Genson, attorney at law, prior to the commission of the robbery. Investigation also disclosed that Bijeol and his alleged female accomplice were in the Chicago office of Mr. Genson and one of his associates, Mr. Barry Goodman, between 10:00 A.M. and 12:00 noon on December 30, 1975, approximately one to three hours after the commission of the robbery. Further, Government investigators learned that the male suspect had transferred $200.00 in cash to Mr. Goodman at this time. It was also learned that Bijeol met with Genson at approximately 1:30 P.M. and again at approximately 5:30 P.M. on the day of the robbery.
4
At approximately 10:00 A.M. on December 31, 1975, Genson was notified by an agent of the FBI that any monies which he had received or would receive as fees for his legal services for the two suspects might constitute proceeds of the robbery. In response to an inquiry of an FBI agent, Genson stated that he received "something" from the male suspect, but he refrained from disclosing what the "something" was. In response to a subsequent inquiry whether he had in fact received any monies or any firearms from either of the two suspects at the time of or subsequent to their meetings on the day of the robbery, Genson asserted the attorney-client privilege as a basis for refusing to respond to the questions.
5
On January 7, 1976, Genson was served with a subpoena duces tecum requesting the production of
6
"(a)ny and all monies paid or delivered to you or into your care, custody, and control by Paul Bijeol or Sharon K. Holloway, . . . or their agents, subsequent to 9:00 A.M. on Tuesday, December 30, 1975."1
7
On January 9, 1976, Genson filed a motion to quash the subpoena. On January 15, 1976, after memoranda had been filed and arguments heard, Chief Judge Parsons denied the motion to quash and ordered Genson to appear before the grand jury and to comply with the subpoena. On that afternoon, Genson appeared before the grand jury and refused to comply with the subpoena or to answer a question pertaining to his receipt of monies from Bijeol.
8
The grounds for this refusal were the assertion of an attorney-client privilege, the Fifth Amendment privilege against self-incrimination on behalf of a client, the Fifth Amendment right to due process, the Fourth and Ninth Amendment right to privacy, the Fourth Amendment right prohibiting unlawful searches and seizures, and the Sixth Amendment right to counsel. The Government then petitioned for an order to compel testimony and to produce evidence. The witness again appeared before Chief Judge Parsons, who ordered him to proceed forthwith to the place of meeting of the Grand Jury, to answer the questions which he was asked in regard to the monies, and to produce said monies as required of him, if in his possession, without further assertion of the attorney-client privilege, the self-incrimination privilege of his client, or his client's Sixth Amendment right to counsel.
9
The appellant then returned to the grand jury, where he again refused to comply with the subpoena or the order of the court. After this second refusal, the Government moved for a rule to show cause why Genson should not be held in contempt. The court held a hearing, entered a finding of contempt, and ordered Genson confined.2 Execution of the sentence was first stayed until January 22, 1976, and a subsequent order stayed execution of the sentence pending this appeal.
10
The panel of this court hearing this case was in entire agreement as to the result to be reached in the case but was not in similar accord as to the reasons for reaching the result. The opinion following represents the views of Judge Pell supporting the result reached. Judges Tone and Bauer have set forth their views of the supportive reasons for the result reached in a separate concurring opinion which insofar as it is in conflict with Judge Pell's opinion represents the majority view of the court. The somewhat unorthodox method of handling the disposition has been necessitated by the need for an early disposition of the case.
11
II. THE FIFTH AMENDMENT TESTIMONIAL PRIVILEGE
12
The major issue in this appeal is whether a subpoena duces tecum requiring an attorney to produce for a grand jury investigation monies turned over to him by his clients and believed to be proceeds of a bank robbery infringes his clients' Fifth Amendment privilege against compelled self-incrimination. Both the appellant and the Government admit that there is little case law exactly on point, possibly because the fruits of bank robberies, if recovered at all, are usually retrieved either pursuant to a valid search warrant or a search incident to a lawful arrest. Although there is judicial language in the decisions that bears upon the narrow issue in this appeal, it essentially is a question of first impression.
13
The Fifth Amendment privilege against self-incrimination does not merely encompass evidence which may lead to a criminal conviction, but also includes information which would furnish a "link in the chain of evidence" that could lead to prosecution as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574, 584 (1975); Accord, Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 (1951). One of the important policies underlying the testimonial privilege is the protection of an individual's "private enclave," Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, 681 (1964). In order to promote the basic policy objectives which it was believed the framers sought to achieve, the Supreme Court has recognized that the Fifth Amendment privilege respects a private inner sanctum which "necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication . . .." (Emphasis supplied); Bellis v. United States, 417 U.S. 85, 91, 94 S.Ct. 2179, 2184, 40 L.Ed.2d 678, 685 (1974). Accord, United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542, 1545 (1944).
14
A series of recent Supreme Court decisions has established, however, that compulsion which makes a suspect or accused the source of real or physical evidence does not violate the testimonial privilege. E. g., United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916 (1966). The Government relies upon this series of decisions to bolster its contention that Genson's production of the monies, which it characterizes as mere physical evidence, would not be equatable with any self-incriminatory disclosures of a testimonial or communicative nature.
15
More precisely, the Government contends that Genson's compliance with the subpoena duces tecum would not represent an impermissible authentication of the physical evidence. The only arguable testimonial disclosure which would accompany Genson's production of the subpoenaed monies would be the implied admission that the currency had been transferred to him from one or both of his clients.3 The appellant meets this argument by observing that the challenged subpoena seeks not just items, but items that were allegedly obtained from the attorney's clients after a specified time on a specified day. Appellant thus argues that because the wording of the subpoena contains references to the "who" and the "when" of the alleged transfer of monies, it necessarily involves assertive conduct which, as such, might well be interpreted to constitute an admission by Genson's clients.
16
The question of whether the monies constitute mere physical evidence or represent a testimonial utterance is not one to be categorically or easily answered. At oral argument, the appellant insisted that he stood in such a special relationship to his clients that the Government could not enforce a subpoena duces tecum against him. In sum, the Government could demand from Genson only what it might legitimately demand from his clients. Appellant insists that no one could fail to agree that the Government could not enforce a subpoena duces tecum against the robbery suspects demanding production of the monies. In response, the Government again underscored its view of the monies as physical evidence by arguing, without authority, that the grand jury has the power to subpoena the unrecovered proceeds of a bank robbery directly from the suspected clients.4
17
The other members of the panel in this appeal are of the opinion under the assumed facts of this case that even in the case of the suspects, compliance on their part with the subpoena would not possess sufficient aspects of testimonial character to activate the protective mantle of the Fifth Amendment. The author of the opinion is less certain as there would seem to him to be an implied assertion whereby the monies so produced would furnish a link in the chain of evidence that could lead to prosecution. Hoffman, supra, 341 U.S. at 486, 71 S.Ct. at 818, 95 L.Ed. at 1124.
18
We need not decide the question of testimonial dimension, however, as it does not resolve the question for decision. Here, the subpoena is not being served directly upon the suspects. The clients allegedly transferred monies to Genson, their attorney. He is the witness who has been ordered to appear before the grand jury. His implied admission that he received the monies from his clients on the very day of the bank robbery is not the direct testimony of the suspects themselves. As the Supreme Court has explained, "(t)he constitutional privilege . . . is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him." (Emphasis supplied.) White, supra, 322 U.S. at 698, 64 S.Ct. at 1251, 88 L.Ed. at 1545; Accord, Bellis, supra, 417 U.S. at 88, 94 S.Ct. at 2183, 40 L.Ed.2d at 683. Even if one assumes that monies of the clients are "effects," although certainly they are not personal documents, and even assuming that the language of White, which has been approvingly quoted in Bellis, bears a direct relationship to the situation revealed in this appeal whereby compliance with subpoena would involve testimonial dimensions, a reversal would not be required here. In simple terms, even if there were testimonial disclosure, it is that of Genson, the attorney, not that of his clients.
19
It is well established that the compulsory processes of the judiciary stand available to require the presentation of evidence in court or before a grand jury. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Moreover, it has been recently established that a lawyer is not subject to the penalty of contempt for advising his client to refuse on Fifth Amendment grounds to produce materials demanded by a subpoena duces tecum where the lawyer believes in good faith that the material may tend to incriminate his client. Maness v. Meyers, supra. In this appeal, however, the court confronts not the situation where the attorney advises his client to refuse production but rather one where the attorney himself, now the alleged possessor of the demanded item, declines to produce.
20
Unless the relationship of attorney and client is completely sui generis, as appellant argues, the author of this opinion finds no precedents supporting Genson's refusal to produce what may possibly be the fruits of a violent crime. Although the author is not aware of any cases directly in point, he finds applicable decisional principles which compel the conclusion that the appellant's refusal was not justified under the mantle of the Fifth Amendment.
21
In the leading case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Supreme Court observed that constitutional provisions for the security of person and property should be liberally construed. It is the clear duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. However, the Boyd court firmly recognized that stolen goods are an entirely different matter than personal papers or documents:
22
"The search for and seizure of stolen or forfeited goods . . . are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him." Id. at 623, 6 S.Ct. at 528, 29 L.Ed. at 748.
23
The quoted excerpt related to a Fourth rather than a Fifth Amendment context, but a recognition that a search for and seizure of stolen goods "differ toto coelo" from the search for and seizure of personal papers, id., represents a durable ground for undertaking an analysis of the policy dimensions of the present case. Even in the light of the Boyd admonition that broad and liberal construction of constitutional rights is the preferable approach, no basis is discernible for thinking that the Fifth Amendment testimonial privilege was intended to allow an attorney to suppress or secrete the physical fruits of an armed robbery.
24
The attorney-client relationship is not so close or special as to create some form of mystical identity between the two natural persons. No reason exists to obliterate the distinction between the person of the attorney and that of the client. The Fifth Amendment explicitly prohibits compelling an accused to bear witness against himself; it does not proscribe incriminating statements elicited from another. Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 615, 34 L.Ed.2d 548, 554 (1973). As stated by Mr. Justice Holmes with typical succinctness, "(a) party is privileged from producing the evidence, but not from its production." Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 572, 57 L.Ed. 919, 920 (1913). In the present case, the compulsion of the subpoena is directly exerted on Genson and not upon his clients. Unless he has standing to invoke on their behalf the Fifth Amendment privilege, the appellant has shown no just cause for failing to comply with the subpoena or the order of the court.5
25
The touchstone for analysis of the question of standing must be the established rule that the Fifth Amendment privilege adheres basically to the person, not to the information or evidence that may incriminate him. See Couch, supra, 409 U.S. at 328, 93 S.Ct. at 615, 34 L.Ed.2d at 554. Counsel have directed attention to a number of cases which have examined the intricate policy dimensions of standing analysis, but none of the precedents is precisely applicable to the unique facts of the present appeal. The question of an attorney's standing to invoke the testimonial privilege on behalf of his clients should be approached on a case-by-case basis. In the author's view, the best method of accomplishing this analytic task is to examine anew the meaning and thrust of Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906).
26
In Hale, the Supreme Court observed that "so strict is the rule that the privilege is a personal one that it has been held in some cases that counsel will not be allowed to make the objection." Id. at 70, 26 S.Ct. at 377, 50 L.Ed. at 664. On the basis of still another passage in the Hale opinion, a number of lower courts have ruled that an attorney does not have standing to assert his client's Fifth Amendment privilege. See United States v. Goldfarb, 328 F.2d 280, 283 (6th Cir. 1964), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746; Accord, Bouschor v. United States, 316 F.2d 451, 458 (8th Cir. 1963). On the other hand, a number of recent lower court decisions hold that an attorney, at least under certain circumstances, does have standing to assert his client's Fifth Amendment privilege.6 Clearly, the courts which have faced the standing question have reached varying results. See United States v. Fisher, 500 F.2d 683, 697 n. 10 (3d Cir. 1974) (en banc) (Hunter, J., concurring in part and dissenting in part), cert. granted, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975), oral argument, 44 U.S.L.W. 3269. The more recent manifestation of a lack of unanimity among the circuits has emerged in cases involving tax investigations. The interpretative problem in those cases has revolved around differing reactions to the meaning and thrust of the Supreme Court decision in Couch, supra.
27
Apart from the recurring context of tax investigations, where an anticipated Supreme Court decision resolving the conflict between the Third Circuit and Fifth Circuit as exemplified in Kasmir and Fisher will provide more definite guidance, the basis for the purported conflict among the circuits over the standing question appears to stem from differing analyses of an attorney's status as an agent, albeit one held to fiduciary standards, for his client. The source of the disagreement is the language of Hale :
28
"The right of a person under the Fifth Amendment to refuse to incriminate himself is purely a personal privilege of the witness. It was never intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person." Id. 201 U.S. at 69-70, 26 S.Ct. at 377, 50 L.Ed. at 663.
29
If the attorney is just like any other agent, the quoted excerpt points to a conclusion that the lawyer has no standing to assert his client's testimonial privilege. See Goldfarb and Bouschor, supra. Those courts which have reached the opposite conclusion have thought that an effort to distinguish the person of the attorney from that of the client would, at least under some circumstances, represent a technical and niggardly construction of constitutional guarantees that vitiates their practical efficacy.
30
It is not necessary to set forth the broad outlines of the policy reasons which have engendered conflict among the circuits. In Kasmir, supra, and in United States v. Judson, 322 F.2d 460 (9th Cir. 1963), there are articulate expositions of the reasons why a recognition of standing may appear appropriate. As the Judson court stated, "The attorney and his client are so identical with respect to the function of the evidence and to the proceedings which call for its production that any distinction is mere sophistry." Id. at 467. Clearly, there is a respectable line of authority for the proposition that the law has traditionally considered the client and his attorney as one in matters relating to the compulsory production of documents. As Professor Wigmore has observed,"(W )hen the client himself would be privileged from protection of the document, * * * as exempt from self-incrimination, the attorney having possession of the document is not bound to produce. Such has invariably been the ruling. On the other hand, if the client would be compellable to produce * * * then the attorney is equally compellable, if the document is in his custody, to produce under the appropriate procedure." (Emphasis in original.) 8 Wigmore, Evidence § 2307 (McNaughton Rev.1961).
31
The problem with resting a decision on this extract is that subsequent cases have tended to undermine its accuracy. The emerging conflict in the circuits over the standing question demonstrates that it is now inaccurate to assert that the courts have invariably ruled that the attorney having possession of the document is not bound to produce. That is the basic issue which is presented for decision; and the Courts of Appeals, as noted, have taken divergent approaches since the Couch decision of 1973.
32
The writer of this opinion is not persuaded that the post-Couch cases creating a conflict among the circuits on the standing question vis-a-vis tax investigations are apposite to the present appeal. He does not read Kasmir as establishing a rule of attorney standing in any and all circumstances. As he reads that opinion, the rationale of which the Supreme Court is presently considering, it finds standing because of today's necessity for tax-payers to depend upon the advice of attorneys:
33
"When the Constitution was first ratified, the citizens of this country were not yet dependent upon attorneys to decipher complex tax laws. And at that time, the specter of the more brutal forms of compulsory self-incrimination was all that required concern. Today, however, the government's power can be used to stimulate a taxpayer's dependence upon his attorney and the predictable transfer of his records. Once so transferred, the government argues, the materials are subject to compelled disclosure. In our judgment, the inherent power thus to compel indirectly an individual's self-incrimination is curbed by the Fifth Amendment as effectively as the power to compel the same result directly." 499 F.2d at 454-55.
34
In essence, then, the Fifth Circuit has accepted the basic rationale of Judson. Interestingly, the Ninth Circuit has apparently receded from its earlier position. The author finds in the case In re Michaelson, 511 F.2d 882 (9th Cir. 1975), cert. denied, 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 469, a questioning by the panel assigned that appeal whether Judson possesses viability after Couch. 511 F.2d at 890. Whereas the Judson court stated that the attorney and his client were so identical with respect to the function of the evidence and the proceedings which called for its production that any distinction was mere sophistry, the Michaelson panel followed Couch and baldly asserted that the Fifth Amendment privilege is personal.
35
Amid the confusion engendered by Couch, it is deemed preferable to return to the two quoted passages of Hale. It does not appear that the reference to the fact that some cases, never identified, had held that counsel would not be allowed to make objection does not, without more, lead to an automatic rule of no standing for attorneys to assert a client's testimonial privilege. If that were true, the disparity of views among the lower courts would necessarily imply that some panels were flatly refusing to follow a binding Supreme Court ruling.
36
In this appeal, the court is concerned not with the compelled production, either by IRS summons or grand jury subpoena, of personal papers or documents but rather with the demand for monies which may have been stolen from a federally insured savings institution. The important testimonial communication in this case is that the suspects have had at a point in time subsequent to the armed robbery possession of the stolen monies. Such an evidentiary fact would appear to the author of this opinion to be an important link in the chain of evidence.7 As Judge Gibbons observed in his concurring opinion in the en banc Fisher decision:
37
"Three separate possible forms of communication may be involved with a subpoena duces tecum. One is the communication involved in the identification or authentication of the document. A second is the communication involved in acknowledging the fact of possession. The third is the communication involved in the contents of the document." 500 F.2d at 693.
38
In that case, as in Kasmir, the truly incriminating communication arose from the contents of the document. Here, by way of contrast, the incriminating communication relates to the possession of the stolen monies.
39
In the judgment of the author of this opinion, it is unnecessary to reach the broader question of an attorney's standing to assert his clients' Fifth Amendment privilege under circumstances where tax records or work papers are demanded. This case is distinguishable on its facts, and there would appear to be no reason to anticipate that the Supreme Court resolution of the standing issue in the tax context will control this case. Adoption of a rule of no attorney standing in tax fraud or tax investigation cases might provide persuasive authority for a conclusion of no standing in this case, but adoption of the contrary rule of standing in tax cases would not be directly applicable. The recognition that an attorney need not produce stolen monies in response to a subpoena would provide a mechanism by which a member of a learned profession could become the privileged repository of the fruits of a violent crime. There is no reason for thinking that the policy of respecting the private enclave of individual citizens reaches that far.
40
For the separate reasons hereinbefore set out, it is the holding of this court that Genson's reliance upon the Fifth Amendment is misplaced. Specifically, the majority of the panel is of the opinion that the money itself is non-testimonial and that its delivery was not assertive conduct. In this situation, the attorney is simply a witness to a criminal act. The fact that the attorney is also a participant in the act is irrelevant since he is not asserting his own privilege against self-incrimination. The author of this opinion rests his opinion upon the lack of standing on the part of the lawyer to assert the Fifth Amendment claim on behalf of his clients. Whatever implied testimony arises from the act of production is that of the lawyer. This remains true even if the wording of the subpoena contains implied questions regarding the "who" and the "when" of the alleged transfer.
III. THE ATTORNEY-CLIENT PRIVILEGE
41
Genson also based his refusal on the attorney-client privilege. Analytically, of course, this privilege is not identical with the Fifth Amendment right, even though closely-related concepts of privacy and confidentiality play an important role in determining the scope of the two privileges. Nor is there a similarity of analysis as regards the issue of standing. The attorney-client privilege arose in the days of Elizabeth I from a consideration of the oath and the honor of the attorney rather than for the apprehensions of his client, and only in the middle of the nineteenth century did the privilege become substantially recognized as that of the client. Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314, 318 (7th Cir. 1963).
42
The basis for the privilege is to afford the client a reasonable expectation of privacy and confidentiality with regard to disclosures made during the course of consultation with his attorney. The general rule is that, barring unusual circumstances, matters involving the receipt of fees from a client are not privileged. In Re Grand Jury Proceedings, 517 F.2d 666, 670-71 (5th Cir. 1975). That opinion, at n. 2, contains an extensive, albeit incomplete, collation of leading cases stating or applying the general rule. We find no basis for deviation here from the general rule.
43
Assuming that the alleged transfer of monies represented a retainer or a prepayment of fees, the fact of payment and the money itself would fall outside the scope of the privilege. Assuming that the monies were transferred not as a fee payment but as a bailment for the purposes of safekeeping, the appellant finds himself in a position closely analogous to the attorney in the case of In re Ryder, 263 F.Supp. 360 (E.D.Va.) aff'd, 381 F.2d 713 (4th Cir. 1967).
44
Before turning to an analysis of Ryder, we note Genson contends that he was under an ethical responsibility not to produce the demanded monies or to answer questions regarding them. The ethical obligation of a lawyer to guard the confidences and secrets of his client is broader than the attorney-client privilege. See A.B.A. Code of Professional Responsibility, EC 4-4 (1974).8 Accordingly, our focus on the attorney-client privilege proceeds on narrower terms than appellant recognizes as appropriate.
45
We think that Genson cannot assert the attorney-client privilege as a justification for taking possession of what may be the fruits of a violent crime.9 Even if the minority view expressed in this opinion that the clients' personal response to a subpoena duces tecum demanding production of the monies would be testimonial were adopted, it would be questionable whether the distinct act of transferring monies to the attorney represents a substantive communication. It is not necessary to resolve these doubts, for in any event, we are not persuaded that the transfer of such monies represents a communication for which the clients could legitimately anticipate confidentiality.
46
In Ryder, supra, an attorney secreted in his own safety deposit box the greater portion of the proceeds of a bank robbery as well as the sawed-off shotgun used in the crime. When Ryder asserted the attorney-client privilege in defense of his actions, the Fourth Circuit, in affirming an 18-month suspension from the practice of law, stated:
47
"Viewed in any light, the facts furnished no basis for the assertion of an attorney-client privilege. It is an abuse of a lawyer's professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime. Ryder's acts bear no reasonable relation to the privilege and duty to refuse to divulge a client's confidential communication." 381 F.2d at 714.
48
We are aware that the Ryder case was decided at a time when an earlier formulation of the canons of legal ethics was in force. The code of conduct then in force did not attempt to distinguish between aspirational provisions labelled as Ethical Considerations and minimum standards of conduct regulated by Disciplinary Rules. We do not think that the format change initiated in 1969 has any bearing on the scope of the evidentiary privilege.
49
Ethical Consideration 7-27 states that "(b)ecause it interferes with the proper administration of justice, a lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce." Our holding that Genson, under the circumstances of this case, cannot avoid compliance with the subpoena because of a claim of Fifth Amendment protection leads us to conclude that he is under a legal obligation to reveal or produce the monies which we have assumed arguendo that he has. Failure to comply with the subpoena and the subsequent court order to produce and testify effects the practical suppression of the sought after evidence.
50
We think that the Ryder conclusion is persuasive authority that the appellant cannot assert the privilege. We hold that Genson's refusal to testify or to produce does not bear a reasonable relation to the privilege and duty to refuse to divulge a client's confidential communications.
51
We express no opinion as to the extent, if any, to which the conduct of Genson does or does not equate with that of Ryder in the aforementioned disciplinary proceedings. The Supreme Court has consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85, 88-89 (1971). We conclude that the appellant's risk of a contempt citation was an appropriate means of achieving pre-compliance review. See Maness, supra, 419 U.S. at 461, 95 S.Ct. at 592, 42 L.Ed.2d at 584.
IV. THE SIXTH AMENDMENT RIGHT TO COUNSEL
52
A third contention in this appeal is that the subpoena duces tecum violated the clients' Sixth Amendment right to counsel. The appellant argues that the attempt of the Government to subpoena the known attorney of the two suspects and to make him the source of evidence against his clients impermissibly infringes upon their right to counsel. The Government insists that defendants have no right to particular counsel and that there is no reason why appellant could not be replaced by equally able counsel. The Government cites several cases from other circuits in support of its assertion that the Sixth Amendment argument is without merit.10
53
It may well be that eventually the appellant's compliance with the subpoena duces tecum and his testimonial response to questions regarding the alleged transfer of monies may place him in the position of being a source of evidence against either or both of his clients. We express no opinion as to whether the suspects having chosen to make the appellant a witness to their crime, if such should subsequently prove to be the fact, may properly invoke the Sixth Amendment to bar his eyewitness testimony at trial. For the purposes of this appeal, we deem any reliance upon a claim of deprivation of right of counsel in violation of the Sixth Amendment is too premature to merit further consideration.
54
We have also examined the appellant's arguments regarding the claim that the Fifth Amendment right to due process, the Fourth and Ninth Amendment right to privacy, and the Fourth Amendment right prohibiting unlawful searches and seizures justified his noncompliance with the subpoena and his refusal to testify. We agree with the district court's implied ruling that the Fourth and Ninth Amendments provided no just cause for noncompliance or for the refusal to answer the question. See note 2 supra. Further, we are persuaded by the Government's argument that the subpoena does not violate the Fifth Amendment right to due process of the appellant's clients and is not violative of the reciprocity requirements of Fed.R.Crim.P. 16. For the above stated reasons, the order of confinement is
AFFIRMED.11
55
TONE, Circuit Judge (concurring).
56
I am unable to agree with all that is said in Judge Pell's thoughtful opinion and find it unnecessary to reach some of the questions discussed there. I therefore state my views separately.
57
We must assume for purposes of this appeal that shortly after robbing a savings and loan association, the robbers delivered money stolen in the robbery to appellant. If that occurred, the money was delivered either for safekeeping, with or without appellant's knowledge that it was stolen, or as an attorney's fee.
58
If it was the latter, the robbers voluntarily relinquished the money and with it any arguable claim that might have arisen from their possession or constructive possession. As Judge Pell points out, the payment of a fee is not a privileged communication. The money itself is non-testimonial and no plausible argument is left for resisting the subpoena.
59
If the money was not given as a fee but for safekeeping, the delivery of the money was an act in furtherance of the crime, regardless of whether appellant knew it was stolen. The delivery of the money was not assertive conduct and therefore was not a privileged communication, and, as we just observed, the money itself is non-testimonial. The attorney is simply a witness to a criminal act. The fact that he is also a participant in the act, presumably without knowledge of its criminal quality, is irrelevant since he is not asserting his own privilege against self incrimination. There is no authority or reason, based on any constitutional provision or the attorney-client privilege, for shielding from judicial inquiry either the fruits of the robbery or the fact of the later criminal act of turning over the money to appellant. Accordingly, it is immaterial that in responding to the subpoena appellant will be making an assertion about who turned over the money and when.
60
Finally, the proceedings have not yet reached the point at which we must decide whether, when the robbers have chosen to make appellant a witness to their crime, they may invoke the Sixth Amendment to bar his eyewitness testimony at trial, although, for me, to ask that question is almost to answer it.
61
For these reasons I concur in the judgment of affirmance.
62
Judge BAUER joins in this opinion.
1
A second part of the subpoena required the production of "(a)ny and all firearms and/or weapons, including but not limited to, one silver-colored revolver or facsimile thereof," delivered to Genson by Bijeol or Holloway subsequent to 9:00 A.M. on December 30, 1975. In one of his appearance before the grand jury, Genson made a statement for the record in which he stated that at no time subsequent to 9:00 A.M. on December 30, 1975, had he received any pistol, revolver, or another firearm or weapon from any person or any source in the entire world. We, therefore, have only the issue of the money phase of the subpoena before us
2
We note that, by its terms, the order to produce and to testify did not preclude the appellant from asserting Fourth and Ninth Amendment rights. At the hearing on the rule to show cause, however, the judge asked the appellant whether he believed that a truthful answer to the propounded question would deny the clients their right to privacy. Moreover, the oral argument before the judge clearly focused on the question whether an attorney, under circumstances such as were present, could claim Fourth Amendment rights. We interpret the judge's statement that "under the circumstances of this case it would be necessary for the attorney to answer" as an implicit ruling that the Fourth and Ninth Amendments provided no just cause for Genson's refusal to produce the monies and to answer the question. We do not think that the variance between the terms of the court order and the actual statement of reasons given by Genson for his action presents any significant problem
3
We note that the Government's brief does not always highlight the fact that a question was asked of Genson which called for a direct, explicit response. The judge who issued the order was careful to note that "(w)e must be very careful about the words that are used." Earlier, the court observed: "You see, the order of this subpoena was first that he appear and second that he produce. Now, the order did not require that he answer all questions that were asked "
4
We note that the Government has made a major change in position. In its Response to Petitioner's Motion to Quash Subpoena, the Government candidly admitted, "It is beyond dispute that the government could not compel Bijeol and Holloway themselves to produce the money and gun because they would be required to produce items personal to them and still within their possession and control." We recognize that the position taken at oral argument is a qualified one, insofar as the Government confines its statement to the situation where the money is regarded as non-testimonial
At this stage of the proceedings, we need not determine whether any monies recovered by means of the challenged subpoena could be admitted as a physical exhibit offered as proof of a necessary element of the alleged violation of 18 U.S.C. § 2113(d).
5
The majority of the panel being of the opinion that there is no testimonial dimension involved in the present situation would find it unnecessary to determine the question of standing. The balance of the discussion on the present subject represents the views of the writer of the opinion and is necessitated by his view that there is an underlying testimonial dimension situation
6
For a list of cases supporting the position that an attorney may claim the self-incrimination privilege on behalf of his client, see United States v. Kasmir, 499 F.2d 444, 454 (5th Cir. 1974), cert. granted, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975), oral argument, 44 U.S.L.W. 3269
7
It is noted from the record that the suspects have surrendered to the United States authorities pursuant to a complaint and warrant seeking their arrest for an alleged violation of 18 U.S.C. § 2113(d). It is clear from United States v. Gaddis, --- U.S. ---, 96 S.Ct. 1023, 47 L.Ed.2d 222, 44 U.S.L.W. 4293 (1976), that they could not be convicted and sentenced for this offense while simultaneously being convicted and sentenced for a violation of 18 U.S.C. § 2113(c), which prohibits knowing possession of stolen monies
Under Gaddis, however, the grand jury could return an indictment containing a § 2113(c) count against the two suspects. See --- U.S. at ---, 96 S.Ct. at 1026, 47 L.Ed.2d at ---, 44 U.S.L.W. at 4294. At this stage of the proceedings, where the grand jury has initiated but has not completed its investigation, it is premature to draw any conclusions regarding the exact significance of the evidentiary fact of possession. Nonetheless, that evidentiary fact would, at the very least, appear to the author of this opinion to serve as a link in the chain of evidence that could lead to prosecution; and Genson's clients could reasonably believe that the monies could be used against them in a criminal prosecution. Maness, supra, 419 U.S. at 461, 95 S.Ct. at 592, 42 L.Ed.2d at 584; Hoffman, supra, 341 U.S. at 486, 71 S.Ct. at 818, 95 L.Ed. at 1124.
8
Canon 4 of the Code is captioned, "A Lawyer Should Preserve the Confidences and Secrets of a Client." Each canon is divided into Ethical Considerations (EC) which in the Preamble of the Code are referred to as aspirational in character, representing objectives toward which every member of the profession should strive, and Disciplinary Rules (DR) which, unlike the Ethical Considerations, are mandatory in character. The first two sentences of EC 4-4 read:
"The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge."
9
Needless to say, we are assuming arguendo that Genson has possession of the monies. Nothing in the record before us warrants an inference that he does possess the monies or that any monies transferred, if indeed they were, were taken by his clients from the Bellwood Savings and Loan Association
10
Ross v. Reda, 510 F.2d 1172, 1173 (6th Cir. 1975); United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973); United States v. Sexton, 473 F.2d 512, 514 (5th Cir. 1973); United States ex rel. Baskerville v. Deegon, 428 F.2d 714, 716 (2d Cir. 1970); United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970)
11
Our examination of the record causes us to note another question. The notice of appeal in this case was filed on January 16, 1976. A procedural schedule calling for the filing of briefs and for oral argument on February 24, 1976, was subsequently adopted pursuant to Fed.R.App.P. 33. At the telephonic conference in which Theodore M. Becker, counsel for witness-appellant, and Assistant United States Attorney Ann C. Tighe participated, the opposing counsel agreed that 28 U.S.C. § 1826(b) was not applicable to this appeal. Subsequently, the Government argued in its brief that Section 1826(b) contains an absolute requirement that an appeal be finally disposed of not later than thirty days from its filing, citing In re Michaelson, 511 F.2d 882, 884 (9th Cir. 1975), cert. denied, 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 469; In re Reed, 448 F.2d 1276, 1277 (9th Cir. 1971), cert. denied, 408 U.S. 922, 92 S.Ct. 2479, 33 L.Ed.2d 332 (1972); In re Charleston, 444 F.2d 504, 506 (9th Cir. 1971), cert. denied, 404 U.S. 916, 92 S.Ct. 241, 30 L.Ed.2d 191
The change in the Government's position was conveyed to this panel in the last footnote of its brief, which was filed on February 18, 1976, a date subsequent to the termination of the time allowed under 28 U.S.C. § 1826(b) for disposition of the appeal. Our examination of this footnote indicates that its wording is virtually identical with that contained in the Government's brief filed in In re Bonk, 527 F.2d 120 (7th Cir. Decided October 29, 1975, Opinion released November 21, 1975). We found it unnecessary to determine in Bonk whether or not the 30 day decisional time frame embodied in the statute was mandatory or directory, for the court decided the appeal within the statutory period.
In this instance, there has been no careful briefing or argument regarding the effect of this panel's non-compliance with the literal terms of Section 1826(b). As in Brown v. United States, 465 F.2d 371 (9th Cir. 1972), we express no opinion upon the constitutional question that might be presented if a party insists upon a final decision within the thirty-day period set forth in the statute. Under the present circumstances, we deem it undesirable to discuss or to analyze the cases brought to the attention of this court in the Bonk appeal. We merely note that our desire to insure thorough consideration and an informed decision, see Beverly v. United States, 468 F.2d 732 (5th Cir. 1972), together with our recognition of the factual and legal impossibility of effecting compliance with the literal terms of the statute, has induced us not to follow the Bonk pattern of first issuing an unreported order and then releasing a subsequent exposition of the rationale of the decision in a published opinion.
Assuming, but without deciding that the thirty-day time limit pertains to disposition of the appeal in the court of appeals, that the provision is mandatory rather than directory, and that such a mandatory time limit is constitutional so that this appeal must be decided not later than February 16, 1976, see In re Charleston, supra at 506, (which it obviously has not been), we find no language in § 1826(b) which divests this court of jurisdiction. The question of whether divestiture of jurisdiction to dispose of the appeal occurs once the required time of decision has passed has never been squarely faced, but our decision in In re Dionisio, 442 F.2d 276 (7th Cir. 1971), rev'd, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), represents at least sub silentio authority that jurisdiction to address the merits is not lost through noncompliance. The Supreme Court decision reversing this court's judgment in that case attached no significance to the fact that the appeal was decided thirty-two days after the filing of the notice of appeal.
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0225V
(not to be published)
JOSEPH MIRELES,
Chief Special Master Corcoran
Petitioner,
v. Filed: July 21, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On February 8, 2019, Joseph Mireles filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that he suffered a right shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine he received on October
11, 2017. (Petition at Preamble). On May 21, 2020, a decision was issued awarding
compensation to Petitioner based on the Respondent’s proffer. (ECF No. 26).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated June 8, 2020,
(ECF No. 30), requesting a total award of $12,856.70 (representing $12,383.20 in fees
and $473.50 in costs). In accordance with General Order #9, counsel for Petitioner filed
represents that Petitioner incurred no out-of-pocket expenses. (Id. at 2). Respondent
reacted to the motion on June 22, 2020 indicating that he is satisfied that the statutory
requirements for an award of attorney’s fees and costs are met in this case and defers to
the Court’s discretion to determine the amount to be awarded. (ECF No. 31). Petitioner
did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $12,856.70 (representing $12,383.20 in attorney’s fees and $473.50 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules
of the Court), the Clerk shall enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2
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327 F.2d 984
140 U.S.P.Q. 531
TATKO BROTHERS SLATE CO., Inc., Plaintiff-Appellant,v.CAPITOL SLATE COMPANY, Inc., Defendant-Appellee.TATKO BROTHERS SLATE CO., Inc., Plaintiff-Appellant,v.NORTH BANGOR SLATE COMPANY, Defendant-Appellee.TATKO BROTHERS SLATE CO., Inc., Plaintiff-Appellant,v.STAR SLATE, INC., Defendant-Appellee.TATKO BROTHERS SLATE CO., Inc., Plaintiff-Appellant,v.ANTHONY DOLLY AND SONS INCORPORATED, Defendant-Appellee.TATKO BROTHERS SLATE CO., Inc., Plaintiff-Appellant,v.STEPHENS-JACKSON COMPANY, Defendant-Appellee.
Nos. 14629-14633.
United States Court of Appeals Third Circuit.
Argued Feb. 7, 1964.Decided Feb. 17, 1964.
J. Preston Swecker, Washington, D.C. (Robert S. Swecker, Washington, D.C., Frank H. Borden, Philadelphia, Pa., Burns, Doane, Benedict, Swecker & Mathis, Washington, D.C., on the brief), for appellant.
Robert A. Cesari, Boston Mass. (Virgil E. Woodcock, Philadelphia, Pa., John C. Blair, Stamford, Conn., W. Hugo Liepmann, Boston, Mass., Woodcock, Phelan & Washburn, Philadelphia, Pa., on the brief), for appellees.
Before McLAUGHLIN, GANEY and SMITH, Circuit Judges.
PER CURIAM.
1
In these patent appeals, the only question is the validity of the single patent involved. The opinion of Judge Grim in the district court1 makes it demonstrably clear that the patent structure, a wood pallet used largely in the slate industry for the loading and transportation of slate, lacks invention over the prior art. The results of similar litigation over the same patent firmly support that view. Tatko Bros. Slate Co. v. Hannon, 270 F.2d 571 (2 Cir. 1959), cert. den. 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959); Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 134 F.Supp. 4 (N.D.N.Y.1955), affd. 233 F.2d 9 (2 Cir. 1956), cert. den. 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956).
2
The judgment of the district court will be affirmed.
1
221 F.Supp. 212 (August 5, 1963)
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655 S.W.2d 452 (1983)
280 Ark. 169
ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant,
v.
Diana DONIS et al., Appellees.
No. 83-90.
Supreme Court of Arkansas.
July 18, 1983.
*453 Carolyn Parham, Little Rock, for appellant.
Ozark Legal Services by Michael G. Pritchard, Fayetteville, for appellees.
HOLT, Justice.
Appellee Diana Donis is the mother of appellees Rashana Donis, age 9, and Londa Donis, age 7. The children were awarded damages in a New Mexico court for the wrongful death of their father. That court ordered the proceeds divided equally, placed in savings accounts or certificates of deposit in a bank or savings and loan association and not be removed without court approval. Their mother was appointed conservator of the property of these children. A portion of these funds has been removed, with court approval, to purchase a house in the names of Rashana Donis and Londa Donis. The present balance in each savings account is $4,800.
The appellant, a state agency, is responsible for the regulation of medicaid and food stamp monies in Arkansas. It upheld the county office and the Fair Hearing Committee's determination that Rashana and Londa were ineligible for these benefits as defined by federal and state regulations. The appellees took a timely appeal to the circuit court pursuant to Ark.Stat.Ann. § 5-713 (Supp.1981). The court granted the appellees' motion for summary judgment asking for a reversal, finding as a matter of law that the trust funds were inaccessible assets with respect to determining eligibility for the Food Stamp Program and the funds were inaccessible resources with respect to determining eligibility for the Medicaid Program. Therefore, there was no substantial evidence to support appellant's determination that the trust funds were accessible assets or resources pursuant to either the Food Stamp or Medicaid regulations. The appellant contends that these savings accounts are properly counted as assets available to the appellees as beneficiaries of the trusts. However, appellees argue these accounts are unavailable to them, and under the applicable regulations, cannot properly be counted as assets.
With respect to food stamp eligibility, the critical regulation is 7 CFR § 273(e)(8), which states in pertinent part:
... Any funds in a trust or transferred to a trust, and the income produced by that trust to the extent it is not available to the household, shall be considered inaccessible to the household if: ....
(ii) The trustee administering the funds is either: (A) A court, or an institution, corporation or organization which is not under the direction or ownership of any household member or (B) an individual appointed by the court who has court imposed limitations placed on his/her use of the funds which meet the requirements of this paragraph....
The dispute really focuses upon the application or interpretation of the cited subsection of the regulation. It is appellant's position that this subsection concerning trustees has not been met by the terms of the trust and, therefore, the trust funds are accessible. Appellees contend to the contrary. *454 According to N.M.Stat.Ann. § 45-5-420 (1978), the appointment of Diana Donis as conservator vests the title in her as trustee to all the property of the protected persons. Hence, Diana Donis is the trustee of the funds in the savings accounts in the names of Rashana and Londa Donis. No court imposed limitations have been placed on her use of those funds, other than that she must obtain court permission to remove them from the savings accounts. She has not sought the court's permission. The burden is upon her, the applicant, to demonstrate these funds are inaccessible. She has not met the burden of showing that the trust funds are inaccessible within the meaning of subsection ii, 7 CFR § 273(e)(8), supra.
With respect to the eligibility for medicaid, the critical regulation is § 3332.2(13) of the appellant's Medical Services Manual, which supplements 42 CFR § 436.840. It states in pertinent part: "Whether the principal of a trust is resource depends on its availability to the applicant." As we have stated, the New Mexico court order makes the savings accounts available to the appellees upon approval of a petition for the removal from the accounts. Furthermore, a beneficiary's interest in a trust can be properly counted for the purposes of determining medicaid eligibility. See McNiff v. Olsted County Welfare Department, 287 Minn. 40, 176 N.W.2d 888 (1970). In the circumstances, it follows that the trial court erred in holding that the savings accounts are not available to the appellees.
Reversed and remanded.
PURTLE, J., dissents.
PURTLE, Justice.
The majority opinion correctly states the law and is accurate in its statement of facts. However, I disagree with the results. To be specific, I think the provisions of 7 CFR § 273(3)(8) conclusively establish that if a guardian or trustee is appointed by the court, with limitations attached, such funds are inaccessible to the applicant for food stamp eligibility. The mother of these children, Diana Donis, appellee, is not free to withdraw any portion of these funds for the ongoing expense involved in caring for the children. The New Mexico Probate Court specifically stated, under paragraph five of the decree appointing conservators, "That the Conservators are not to remove the moneys from the savings accounts or certificates of deposit without prior approval by Order of the Court." I would assume that the New Mexico court would require a hearing, proof, and some type of showing before an order would be issued. If this is not a "court imposed limitation" on the use of these funds, then I do not know what is.
In a similar case it was held that a beneficiary of a trust fund created from the proceeds of a personal injury claim is not required to apply to the court in order to be eligible for medical assistance. To require an application to the court in such circumstances is arbitrary and capricious. Buie v. Blum, 78 A.D.2d 775, 435 N.Y.S.2d 550 (1980). The trial court was absolutely correct in holding these trust funds to be inaccessible to the appellees. Therefore, I would affirm.
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2018 IL App (1st) 152522
FIFTH DIVISION
November 30, 2018
No. 1-15-2522
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
)
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 16106
)
RODNEY LEE, ) The Honorable
) Clayton J. Crane,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Lampkin concurred in the judgment and
opinion.
OPINION
¶1 Following a bench trial, defendant Rodney Lee was convicted of violating the Sex
Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2014)) for his failure to
register as a sex offender and was sentenced to four years' imprisonment. On appeal, defendant
contends that SORA's statutory scheme violates federal and Illinois constitutions' due process
rights by infringing on registrants' fundamental liberty interests where it places upon them severe
No. 15-2522
restrictions, intrusive monitoring and burdensome registration requirements without providing
substantive or procedural due process. For the following reasons, we affirm the judgment of the
trial court.
¶2 BACKGROUND
¶3 Defendant was convicted of aggravated criminal sexual abuse in 1998 and was
subsequently required to register as a sex offender. In 2014, defendant was indicted for his
failure to register as a sex offender and his trial commenced on May 20, 2015.
¶4 At trial, Chicago police detective Matthew Schenatski testified that on August 20, 2014,
he was assigned to investigate defendant for failure to register. As part of his investigation, he
went to 1108 N. Monticello Avenue, defendant's last known address. When he arrived, the front
door was unlocked and ajar. Schenatski walked inside and found the apartment vacant; however,
there was a cellular phone and a television with wires running outside to a neighbor's property.
On cross-examination, Schenatski agreed that he did not have a search warrant for the two-story
building at 1108 N. Monticello Avenue.
¶5 Chicago police detective Ruck testified that on September 3, 2014, as part of defendant's
failure to register investigation, he interviewed defendant, who had been taken into custody.
Detective Ruck administered Miranda warnings, and defendant said that he understood them.
Defendant told Ruck that he lived at 1108 N. Monticello Avenue since 2007 and that he was
supposed to register every 90 days. Ruck asked defendant why he had not registered since June
2013 and defendant responded that when he went to the police department in September 2013,
he was told that he needed $100 to register. Ruck told defendant that the registration fee could
be waived and that if he went to the police department, it would have been documented that he
- 2
No. 15-2522
tried to register. Defendant then told Ruck that he did not go to the police station but called
instead. On cross-examination, Ruck indicated that defendant's statement was made orally.
¶6 The parties then stipulated that if called to testify, Chicago police officer Patrick Loftus
would identify defendant and testify that he registered him as a sex offender on June 24, 2013.
He would identify People's Exhibit Number 1 as a true and accurate copy of the registration form
that he completed with defendant, bearing his own signature and defendant's signature on each
page. He would further testify that as part of the registration process, he informed defendant of
his duty to register every 90 days and that he must register on or before September 22, 2013.
Loftus would finally testify that business records maintained by the Chicago Police Department
for sex offender registration contain no subsequent registrations or attempts to register by
defendant.
¶7 The parties further stipulated that if called to testify, Chicago police Officer Figus would
testify that he arrested defendant on September 3, 2014, at 9:40 am at 801 North Kedzie Avenue.
¶8 People's Exhibit Number 1 and People's Exhibit Number 2, a certified copy of
defendant's 1998 conviction, were admitted without objection.
¶9 After argument, defendant's motion for a directed finding was denied.
¶ 10 Defendant testified that he lived at 1108 N. Monticello Avenue and during the last 10
years, he had two prior felony convictions: a 2009 failure to report a change in address and a
failure to register in 2006. On June 24, 2013, he registered at the police station with Officer
Loftus, who told him that the next time he came to register, he would have to pay a $100
registration fee. Defendant testified that Loftus said he would not register him if he did not pay
and that although the fee had been waived in the past, he would not waive it again. Defendant
called the police station on September 21 or September 22 and explained to the officer who
- 3
No. 15-2522
answered the phone that he only had $80. He asked if it would be possible to pay the $80
towards the registration fee and pay the balance later, but the officer told him that he would have
to have the full amount in order to register. Defendant decided not to go to the police station
because he did not believe they would register him or give him a waiver and he did not want to
get arrested. Defendant identified Defense Exhibit Number 1 as a registration fee waiver he
received on September 25, 2012, Defense Exhibit Number 2 as a registration fee waiver he
received on May 10, 2002, Defense Exhibit Number 3 as a registration fee waiver he received on
July 14, 2000, and Defense Exhibit Number 4 as a registration fee waiver he received on July 20,
1999.
¶ 11 On cross-examination, defendant agreed that he received a fee waiver as shown on each
of the defense exhibits he previously identified, none of which were executed by Officer Loftus.
Defendant reviewed and identified People's Exhibit Number 5, his registration form from
December 26, 2012, which he signed with Officer Solomis Karadjias, and People's Exhibit
Number 6, his registration form from September 25, 2012, which he signed with Officer Ronald
Jenkins. While he conceded that when he called the station in September 2013 he did not ask
about a fee waiver or identify himself to the officer on the phone, defendant maintained that he
called and was told that if he did not have $100, there was no need to come in.
¶ 12 On redirect, defendant testified that there was no statement in People's Exhibits 4, 5, or 6
that he had to bring money, but he did see that on a registration form in June 2013.
¶ 13 Defense Exhibits 2, 3 and 4 were admitted without objection and the defense rested.
¶ 14 People's Exhibits 4, 5 and 6 were admitted and the State rested in rebuttal.
¶ 15 After argument, the trial court found that defendant had registered several times and was
provided several fee waivers. The court found that defendant did not report in person as
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No. 15-2522
required, found him guilty of failing to register and continued the matter for post-trial
proceedings.
¶ 16 On June 17, 2015, defense counsel filed a motion for new trial, a copy of which is not
included in the record. On July 9, 2015, defense counsel notified the court that defendant had
prepared a pro se motion to reconsider, dismiss and discharge, and the matter was continued to
determine whether counsel wished to incorporate any of defendant's arguments into his motion.
On July 28, 2015, defense counsel stated that he would not incorporate any of defendant's pro se
points into his motion for new trial. Defendant's pro se motion was filed that day and the trial
court allowed defendant to argue his motion in addition to counsel's argument on the motion for
new trial.
¶ 17 Defendant argued pro se that his registration period had expired so it was
unconstitutional for him to be convicted in 2011. 1 Further, defendant argued that he was not
notified that his registration period was extended and it was an unconstitutional extension.
Additionally, he argued that his requirement to register beyond the initial 10-year term without
any means to petition for removal was unconstitutional; he should be given an individual
assessment to determine whether he posed a continuing risk to the public; and the continued
registration requirement is a legislative loophole. These failures, as applied to defendant,
violated his due process rights and the proportionate penalties clause.
¶ 18 The State argued that defendant had sexually abused his 10-year-old daughter in 1998.
Defendant conceded that he failed to register during his first 10-year term and violated SORA,
which he was sentenced on in 2006. Defendant was then informed of his duty to continue to
register.
1
This is a reference to a prior conviction for failure to register.
- 5
No. 15-2522
¶ 19 Defendant responded pro se before the court that police were supposed to present him
with a letter to sign if his registration term was extended. The trial court ultimately denied
defendant's pro se motion and noted that defendant did have acts of violence perpetrated since
the date of his original conviction in 1998. Defense counsel then addressed the motion for new
trial, which was also denied.
¶ 20 During sentencing, the State argued that defendant's failure to register was a Class 2
offense and it was extendable. The State recommended a six-year sentence. The defense
countered that defendant's only convictions were older and besides failure to register, he had no
convictions since 2011. In allocution, defendant argued that his failure to register should be a
Class 3 and not a Class 2.
¶ 21 The trial court sentenced defendant to four years' imprisonment. Defendant's motion to
reconsider sentence was denied and this timely appeal followed.
¶ 22 ANALYSIS
¶ 23 On appeal, defendant contends that SORA's statutory scheme violates federal and Illinois
due process rights by infringing on registrants' fundamental liberty interests where it places upon
them severe restrictions, intrusive monitoring and burdensome registration requirements without
providing substantive or procedural due process. In support of this assertion, defendant first
contends that the current version of SORA is punitive in nature. Defendant maintains that
because SORA is punitive and infringes on registrants' fundamental liberty interests without
providing procedural or substantive due process of law, this court should declare it
unconstitutional on its face, and reverse his conviction for failing to register under SORA.
¶ 24 A. Jurisdiction
- 6
No. 15-2522
¶ 25 Although not raised by the parties, we find it important to note our supreme court's recent
holding with regard to an appellate court's jurisdiction to hear constitutional challenges to SORA
in People v. Bingham, 2018 IL 122008. A reviewing court has an independent duty to consider
issues of jurisdiction, regardless of whether either party has raised them. People v. Smith, 228
Ill. 2d 95, 104 (2008).
¶ 26 In Bingham, the defendant sought to challenge SORA on a direct appeal from a
conviction which triggered SORA obligations based on a prior conviction for attempted criminal
sexual assault that occurred in 1983. The defendant challenged SORA with an "as-applied"
constitutional challenge and an ex post facto challenge. Bingham, 2018 IL 122008, ¶¶ 11-12, 14.
The State challenged the power of a reviewing court "on direct appeal of a criminal conviction to
order that a defendant be relieved of his obligation to register as a sex offender when that
obligation was neither imposed by the trial court nor did it relate to the reasons for his conviction
and sentence in that court." Bingham, 2018 IL 122008, ¶ 15. The supreme court agreed and held
that "a reviewing court has no power on direct appeal of a criminal conviction to order that
defendant be relieved of the obligation to register as a sex offender when there is neither an
obligation to register imposed by the trial court nor an order or conviction that the defendant is
appealing that is directly related to the obligation or the failure to register." Bingham, 2018 IL
122008, ¶ 18. The court further clarified that "[t]he two proper ways that the kinds of
constitutional issues involved in this case typically make their way to a reviewing court are (1)
through a direct appeal from a case finding a defendant guilty of violating the regulation he
attempts to challenge as unconstitutional, such as the sex offender registration law * * *, or (2)
by filing a civil suit seeking a declaration of unconstitutionality and relief from the classification
as well as the burdens of sex offender registration * * *." Bingham, 2018 IL 122008, ¶ 21.
- 7
No. 15-2522
¶ 27 In the instant case, as defendant is on direct appeal from a conviction of violating SORA,
his constitutional challenges to SORA are properly before this court.
¶ 28 B. Standing
¶ 29 Initially the State contends that defendant's inclusion of a criminal offense, a licensing
regulation, and a prohibition on name changes in his argument should be summarily rejected.
The State argues that it cannot enforce a proximity restriction unless a violation of that statute
occurs and defendant has not been charged with a violation of that statute, and also that the
regulations are not criminal offenses. The State further contends that this court recently found
that a registrant under SORA does not have standing to attack even the penalty provision of
SORA where there is no allegation of noncompliance, citing In re A.C., 2016 IL App (1st)
153047, ¶ 24, distinguishing People v. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 17-20, 30
31.
¶ 30 The State misstates the lack of standing finding of In re A.C., 2016 IL App (1st) 153047.
In that case, this court found that the respondent lacked standing because he was not suffering or
in immediate danger of suffering a direct injury as a result of enforcement of section 10 of
SORA (730 ILCS 150/10 (West 2014)) because there was no allegation that respondent failed to
comply with the registration required under SORA and was being charged with a felony. In re
A.C., 2016 IL App (1st) 153047, ¶ 24. This court noted that unlike in Avila-Briones, application
of the "penalty" provision of section 10 was not automatically being applied as it first required
that respondent fail to abide by the registration requirements, and then he must be charged with a
violation and convicted after a trial. In re A.C., 2016 IL App (1st) 153047, ¶ 24.
¶ 31 The circumstances presented in the present case are more similar to those presented in
Avila-Briones, 2015 IL App (1st) 132221 and People v. Pollard, 2016 IL App (5th) 130514. In
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No. 15-2522
order to have standing to bring a constitutional challenge, a party must show that he is within the
class aggrieved by the alleged unconstitutionality. In re M.I., 2013 IL 113776, ¶ 32. 2 He must
have suffered or be in immediate danger of suffering a direct injury as a result of the
enforcement of the challenged statute, and the claimed injury must be: 1) distinct and palpable,
2) fairly traceable to defendant's actions, and 3) substantially likely to be prevented or redressed
by the grant of the requested relief. Pollard, 2016 IL App (5th) 130514, ¶ 26 (citing Avila-
Briones, 2015 IL App (1st) 132221, ¶ 27).
¶ 32 Like the defendants in Avila-Briones and Pollard, the SORA statutory scheme provisions
that defendant challenges automatically applied to him on his release from prison. As a result of
his conviction, defendant was subject to the SORA statutory scheme, including registration
restrictions, residency restrictions, employment restrictions, restrictions on where he may be
present, and restrictions on his privileges to drive or change his name for the rest of his life, and
no contingency occurred before those laws applied to him. See Pollard, 2016 IL App (5th)
130514, ¶ 27. In light of what happened to defendant due to his violation of SORA, the threat of
prosecution can hardly be speculative, but is real and immediate. See People v. Minnis, 2016 IL
119563, ¶ 16. Additionally, defendant, like other registrants, will be subjected to a lifetime of
government surveillance and restraint and "must alter his behavior in a way that the vast majority
of the public never will." Pollard, 2016 IL App (5th) 130514, ¶ 27. A favorable ruling from this
court invalidating these restrictions would redress these injuries. Pollard, 2016 IL App (5th)
130514, ¶ 27. Accordingly, we find that defendant has standing to raise his due process
challenges to SORA.
2
We note that this sentence was originally cited by Avila-Briones and subsequently in Pollard,
however, it was cited incorrectly, with the last word as "constitutionality" instead of "unconstitutionality."
See Pollard, 2016 IL App (5th) 130514, ¶ 26; Avila-Briones, 2015 IL App (1st) 132221, ¶ 27. But cf. In
re M.I., 2013 IL 113776, ¶ 32.
- 9
No. 15-2522
¶ 33 C. Defendant's Facial Due Process Challenges
¶ 34 On appeal, defendant contends that SORA's statutory scheme violates federal and Illinois
due process rights by infringing on registrants' fundamental liberty interests where it places upon
them severe restrictions, intrusive monitoring and burdensome registration requirements without
providing substantive or procedural due process. In support of this assertion, defendant first
contends that the current version of SORA is punitive in nature. Defendant maintains that
because SORA is punitive and infringes on registrants' fundamental liberty interests without
providing procedural or substantive due process of law, this court should declare it
unconstitutional on its face, and reverse his conviction for failing to register under SORA.
¶ 35 Specifically, defendant contends that recent amendments to SORA call for a re
examination of prior decisions on this issue. He acknowledges that both the United States and
Illinois Supreme Courts have previously upheld the constitutionality of earlier versions of sex
offender registration and notification statutes against similar challenges in Smith v. Doe, 538
U.S. 84 (2003) and People v. Malchow, 193 Ill. 2d 413 (2000). He asserts, however, that SORA
should be analyzed as it currently exists and notes that a facial constitutional due process
challenge to SORA has not yet been addressed by our supreme court in its current form. 3
¶ 36 Defendant further contends that the affirmative disabilities and restraints of SORA are
imposed in violation of his procedural and substantive due process rights under both the United
States and Illinois Constitutions. In reasserting his contention that SORA is punitive in nature,
defendant claims that the regulations imposed will continue to regulate nearly all aspects of his
life to a degree more extreme than probation or mandatory supervised release (MSR) for the rest
of his life, thus impinging on his fundamental right to liberty. Moreover, defendant contends that
3
People v. Bingham, 2018 IL 122008 addressed as-applied and ex post facto challenges to
SORA; People v. Minnis, 2016 IL 119563 addressed a first amendment overbreadth challenge.
- 10
No. 15-2522
SORA violates registrants' procedural due process rights because there are no procedural
safeguards to winnow registrants who pose little danger to society from the sex offender registry
nor any appeal procedures from the registration requirements. As stated earlier, defendant
contends that because SORA is punitive and infringes on registrants' fundamental liberty
interests without providing procedural or substantive due process of law, this court should
declare it unconstitutional on its face, and reverse his conviction for failing to register under
SORA.
¶ 37 D. The Current SORA Scheme
¶ 38 Defendant summarizes the differences between the 2014 SORA and the 1998 version
which was upheld by Malchow as follows:
(1) Applies to more individuals (730 ILCS 150/3(c)(2.1) (West 2014)) (now requires
every sex offender to register if convicted of any subsequent felony);
(2) Expands the number of agencies with which a registrant must register in person (730
ILCS 150/3(a) (West 2014)) (requires registrants to register if residing or temporarily
domiciled in a place for three or more days rather than 10 days); 730 ILCS 150/6
(West 2014) (requires registrant to notify authorities in place he resides and
authorities at his travel destination if he travels for three or more days); 730 ILCS
150/3(d) (West 2014) (requires personal registration with authorities having
jurisdiction over registrant's workplace within three days of starting or changing
employment); and 730 ILCS 150/3(a) (West 2014) (requires personal reporting to
public safety or security director of any higher education institution at which
registrant works or attends);
- 11
No. 15-2522
(3) Greatly expands the quantity of information a registrant must provide when
registering (730 ILCS 150/3(a) (West 2014)) (requires registrant to provide not just
positive identification and proof of residence, but a current photograph, place of
employment, telephone numbers, employer's telephone number, school attended, all
email addresses, instant messaging identities, chat room identities and other internet
communications identities that registrant uses or plans to use, all Uniform Resource
Locaters (URLs) registered or used by registrant, a copy of terms and conditions of
parole or release, county of conviction, license plate numbers for every vehicle, age
of registrant and victim at the time of the offense, and any distinguishing marks
located on the body of the registrant);
(4) Increases the number of times a registrant must report in person (730 ILCS 150/6
(West 2014)) (requires registration of individuals without fixed residences every
week, individuals who change residences and any additional times law enforcement
so requests);
(5) Increases the length of time most registrants are required to register (730 ILCS 150/7
(West 2014)) (requires former registrants to register for a period of registration based
on the period currently required for the offense for which the registrant was
previously registered and imposes lifetime registration on those adjudicated sexually
dangerous, as well as sexually violent persons, those defined by 730 ILCS 150/2(E)
(West 2014) as sexual predators and individuals previously required to register under
the Child Murderer and Violent Offender Against Youth Sex Offender Registration
Act);
- 12
No. 15-2522
(6) An expansion of the categories of offenders classified as "sexually dangerous,"
"sexually violent," or "sexual predators" (730 ILCS 150/2 (West 2014));
(7) Shortens the period within which a registrant must appear in person to register from
10 days to three days (730 ILCS 150/3(b), (c)(3), (c)(4) (West 2014));
(8) Increases the initial and annual registration fees from $10 and $5, respectively, to
$100 each year (730 ILCS 150/3(c)(6) (West 2014));
(9) Punishes noncompliance more severely (730 ILCS 150/10 (West 2014)) (punishes
initial violations as Class 3 felonies and subsequent violations as Class 2 felonies
rather than Class 4 felonies); 730 ILCS 150/7 (West 2014) (imposes mandatory 10
year extension of registration period on registrants who fail to comply);
(10) Imposes greater restrictions on where sexual predators may be present (720 ILCS
5/11-9.4-1 (West 2014) (renders it a crime for sexual predators to be present in a park
or to loiter within 500 feet of a park);
(11) Requires all sex offenders to renew their driver's license annually (730 ILCS 5/5
5-3(o) (West 2014)); and
(12) Prohibits sex offenders from petitioning to change their names (735 ILCS 5/21
101 (West 2014)).
¶ 39 Defendant contends that the 2014 SORA is far more onerous than the 1998 version which
was found non-punitive and it imposes significant disabilities and restraints on registrants'
fundamental liberty interests without consideration of rehabilitative potential or restoration to
useful citizenship.
¶ 40 E. Due Process
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No. 15-2522
¶ 41 The analysis is guided by familiar principles. All statutes carry a strong presumption of
constitutionality. People v. Hollins, 2012 IL 11254, ¶ 13. Accordingly, this court will uphold
statutes whenever reasonably possible, resolving all doubts in favor of their validity. People v.
Boeckmann, 238 Ill. 2d 1, 6-7 (2010). To rebut this presumption, a party challenging a statute
must establish clearly that it violates the constitution. People v. Mosley, 2015 IL 115872, ¶ 22.
On the constitutional issues before us, our review is de novo. Mosley, 2015 IL 115872, ¶ 22.
¶ 42 At the outset, we note that defendant's challenge to the 2014 SORA is framed solely as a
facial challenge to the constitutional validity of the changes made by the legislature since our
supreme court's consideration of the 1998 SORA and does not challenge the validity of the 2014
SORA as applied specifically to him.
¶ 43 A facial challenge to the constitutionality of a legislative enactment is the most difficult
challenge to successfully raise because an enactment is facially invalid only if no set of
circumstances exist under which it would be valid. U.S. v. Salerno, 481 U.S. 739, 745 (1987);
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008);
Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008). The fact that the enactment
could be found unconstitutional under some set of circumstances does not establish its facial
invalidity. Napleton, 229 Ill. 2d at 306; People v. Johnson, 2015 IL App (1st) 1333663, ¶ 27.
¶ 44 Facial challenges are disfavored for several reasons. Grange, 552 U.S. at 450. Claims of
facial invalidity often rest on speculation that raise the risk of "premature interpretation of
statutes on the basis of factually barebones records" (Sabri v. United States, 541 U.S. 600, 609
(2004)); they run contrary to the fundamental principle of judicial restraint that courts should not
anticipate a question of constitutional law before the necessity of deciding it or create a rule of
constitutional law broader than necessary to decide the precise question before it (Ashwander v.
- 14
No. 15-2522
TVA, 297 U.S. 288, 346-47 (1936)); and they threaten to short-circuit the democratic process by
preventing laws embodying the will of the people from being implemented in a manner
consistent with the Constitution (Grange, 552 U.S. at 450-51).
¶ 45 The Due Process Clauses of the Fifth and Fourteenth Amendments provide that “No
person shall ... be deprived of life, liberty, or property, without due process of law...” U.S.
Const., amends. V, XIV. The United States Supreme Court has held that the Due Process
Clauses protect individuals against two types of government action. Salerno, 481 U.S. at 746.
So-called “substantive due process” prevents the government from engaging in conduct that
“shocks the conscience” (Rochin v. California, 342 U.S. 165, 172 (1952)), or interferes with
rights "implicit in the concept of ordered liberty" (Palko v. Connecticut, 302 U.S. 319, 325-26
(1937)). When government action depriving a person of life, liberty, or property survives
substantive due process scrutiny, it must still be implemented in a fair manner. Salerno,481 U.S.
at 746 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). This requirement has
traditionally been referred to as "procedural" due process. Salerno,481 U.S. at 746. Likewise,
the Illinois Constitution contains its own separate guarantee of due process to all persons. Ill.
Const. 1970, art. I, § 2.
¶ 46 When determining whether a statute violates constitutional guarantees of due process, a
reviewing court must first determine the nature of the right upon which the statute allegedly
infringes. People v. Beard, 366 Ill. App. 3d 197, 200 (2006). Classification of the right affected
dictates the level of scrutiny to be applied by a reviewing court in determining whether the
statute in question is in accordance with the constitution. Napleton, 229 Ill. 2d at 307. Where
the right infringed upon is a fundamental right, the statute is subject to strict scrutiny analysis.
Beard, 366 Ill. App. 3d at 200. In order to survive strict scrutiny, the measures employed by the
- 15
No. 15-2522
government body must be necessary to serve a compelling state interest, and must be narrowly
tailored to it. Napleton, 229 Ill. 2d at 307.
¶ 47 Where a statute does not affect a fundamental constitutional right, the test for determining
whether the provision comports with due process is the rational basis test. People v. Cornelius,
213 Ill. 2d 178, 204 (2004). To satisfy the rational basis test, a statute must only bear a rational
relationship to the purpose the legislature sought to accomplish in enacting the statute and the
means adopted must be a reasonable method of accomplishing the desired objective. In re J.W.,
204 Ill. 2d 50, 67 (2003), quoting People v. Adams, 144 Ill. 2d 381, 390 (1991).
¶ 48 Thus we must determine whether defendant's due process challenges involve a
fundamental right. Defendant asserts that he has a fundament right to live without burdensome
and intrusive monitoring of the minutiae of his life and without government interference in his
right to live or be present in certain locations. He concedes that Illinois courts have generally not
recognized the right to be free from registration as a fundamental right, but maintains that the
"calculus" changes when a registrant is faced with the punishment and burdens enumerated in the
current version of SORA. He likens the effects of lifetime registration to the effects of the
lifetime surveillance by government authorities noted in Weems v. United States, 217 U.S. 349,
366 (1910), and concludes that SORA goes beyond mere reporting. Instead, it impinges on
almost every aspect of a registrant's life, implicating the fundamental right to be free from
government dictates as to where one might live and what occupations one might choose to make
a living.
¶ 49 As noted by defendant, Illinois courts have previously held that SORA does not implicate
a fundamental right and thus is subject only to the rational basis test. Beard, 366 Ill. App. 3d at
201 (citing In re J.W., 204 Ill. 2d 50, 67 (2003)). While defendant has cited numerous cases
- 16
No. 15-2522
from other jurisdictions finding that the respective sex offender registration acts implicated a
fundamental right, he does not cite, nor have we found, any Illinois case on point. This court has
previously addressed whether SORA implicates a fundamental right to be free from a lifetime of
burdensome, intrusive monitoring and restrictions in Avila-Briones, 2015 IL App (1st) 132221,
¶¶ 69-71, as noted in People v. Parker, 2016 IL App (1st) 141597, ¶ 78. After analyzing the
"prohibitions, obligations, and mandatory dissemination of information" required by the SORA
statutory scheme, the court determined that the provisions did not infringe on any fundamental
right. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 72-76. See also Cornelius, 213 Ill. 2d at
203-04; J.W., 204 Ill. 2d at 67. The court then determined that SORA passed rational basis
review because it serves the legitimate state interest of protecting the public from sex offenders
and is rationally related to that interest despite the possibility that it may be over-inclusive.
Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 82-84; Parker, 2016 IL App (1st) 141597, ¶ 78.
The court further analyzed the additional restrictions on where a registered sex offender may
work, live, or be present, the license renewal requirement, and the prohibition on a registered sex
offender changing his or her name, and declined to recognized any of them as implicating what
would clearly be a new fundamental right. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 75-76;
Parker, 2016 IL App (1st) 141597, ¶ 79. Based on binding Illinois precedent, we must find that
the SORA restrictions do not rise to the level of implicating a fundamental right, although we do
agree that SORA's burdens and restrictions significantly impact a registered sex offender's life.
¶ 50 This is not the end of the analysis, however. Defendant's failure to identify a
fundamental right means that we apply the rational basis review to the SORA statutory scheme.
People v. Rodriguez, 2018 IL App (1st) 151938, ¶ 23.
- 17
No. 15-2522
¶ 51 Rational basis review is highly deferential to the legislature; it does not focus on the
wisdom of the statute or whether it is the best means to achieve the desired outcome. Rodriguez,
2018 IL App (1st) 151938, ¶ 24. Rather, as long as there is a conceivable basis for finding the
statute rationally related to a legitimate state interest, the law must be upheld. Rodriguez, 2018
IL App (1st) 151938, ¶ 24. Most importantly, under rational basis review, a statute is not
unconstitutional because it may be under-inclusive or over-inclusive. Rodriguez, 2018 IL App
(1st) 151938, ¶ 25.
¶ 52 Turning our attention to defendant's facial constitutional challenge of the SORA statutory
scheme, we find it constitutional under the rational basis test. While not every offender is
necessarily inclined to commit another sex offense, subjecting the group as a whole to certain
restrictions serves a legitimate state purpose which SORA is rationally related to achieve, even
though it may not be perfect in its execution. See Parker, 2016 IL App (1st) 141597, ¶ 80.
Thus, we find that SORA does not violate substantive due process.
¶ 53 As was found by the court in Avila-Briones¸ we further find that additional procedures
are not necessary to satisfy due process because the civil registration requirements of SORA are
based entirely on the convicted offense, which provides a defendant with a "procedurally
safeguarded opportunity to contest," and the offender's likelihood of recidivism is not relevant to
determining whether he committed the charged offense. Parker, 2016 IL App (1st) 141597, ¶
81, quoting Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 88-92. Because SORA is not
unconstitutional, there is no constitutional mandate for procedures that would allow a sex
offender to demonstrate that he or she is not likely to reoffend. Parker, 2016 IL App (1st)
141597, ¶ 81 (citing Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 88-92). Thus there is no basis
for finding that SORA violates procedural due process under rational basis analysis.
- 18
No. 15-2522
¶ 54 CONCLUSION
¶ 55 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 56 Affirmed.
- 19
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842 So.2d 1076 (2003)
Laurence E. FENDRICH, Appellant,
v.
RBF, L.L.C., a Delaware limited liability company, Appellee.
No. 4D02-2203.
District Court of Appeal of Florida, Fourth District.
April 30, 2003.
*1077 Stanford R. Solomon and Hallie S. Evans of The Solomon Tropp Law Group, P.A., Tampa, for appellant.
Scott B. Newman of Holland & Knight LLP, West Palm Beach and Daniel S. Pearson and Ilene S. Pabian of Holland & Knight LLP, Miami, for appellee.
KLEIN, J.
We withdraw our opinion filed on March 19, 2003 and substitute the following opinion.
Defendant appellee, a developer, signed a reservation form purporting to give the *1078 appellant plaintiff the right to subsequently enter into a contract to purchase a home on a specified lot at a firm price. Plaintiff alleges that when defendant tendered the purchase contract, it was for a less desirable lot and at a higher price. We conclude that these allegations state a cause of action under the Florida Deceptive and Unfair Trade Practices Act.
The reservation form, entitled "Residence Homes at Eagle Tree Reservation Agreement," specifically referring to Lot 10A, contained the following relevant provisions:
1. Reservation of Residence Homes(s). Purchaser hereby reserves the right to purchase the aforedescribed Residence Home(s) in the Residence Home at Eagle Tree community of the Ritz-Carlton Golf Club & Spa, Jupiter project, in accordance with the terms and conditions set forth in this Agreement.
2. Purchase Price. The purchase price of the Residence Homes(s) hereby reserved by Purchaser shall be U.S. $1,200,000 (the "Purchase Price"). Seller assures Purchaser that the Purchase Price shall be that which is to be set forth in the Contract.
3. Refundable Deposit. Contemporaneously with Purchaser's execution of this Agreement, Purchaser agrees to deliver to Seller a check or payment by major credit card reasonably acceptable to Seller in the amount of U.S. $25,000 as a good faith deposit (hereinafter referred to as "Deposit") to be held by Seller in consideration for Seller's reservation of the aforedescribed Residence Home(s) in Purchaser's name. In the event that Purchaser actually consummates the purchase of such Residence Home(s) and proceeds with closing the transaction ("Closing"), the aforedescribed Deposit shall be applied toward the down payment required under any applicable purchase contract (the "Contract") to be executed. In the event that the Purchaser elects for any reason not to purchase the aforedescribed Residence Home(s) prior to the time that a legally binding Contract is executed by Purchaser, then, pursuant to Section 4 below, the Deposit together with any interest that has accrued, shall promptly be refunded to Purchaser.
4. No obligation. Purchaser acknowledges that until both Purchaser and Seller have executed a Contract with respect to the aforedescribed Residence Home(s), Purchaser is under no obligation to purchase and Seller is under no obligation to sell such Residence Home(s). This agreement can be terminated by either party at any time, subject to a refund of Purchaser's Deposit in accordance with Section 5 below.
When the time came to execute the purchase agreement, about five months later, the defendant offered a contract for Lot 2C, not 10A, for a purchase price of $1,495,000, not $1,200,000. Plaintiff subsequently filed this lawsuit seeking specific performance, damages for breach of contract, and damages for violating the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).
Plaintiff's theories of recovery of damages for breach of contract or specific performance are grounded on the argument that this was an enforceable option agreement. An option to purchase land, however, is irrevocable by the seller until expiration of a time limit. Goodman v. Goodman, 290 So.2d 552 (Fla. 1st DCA 1973). Because paragraph 4 allows either party to terminate at any time, this is not a valid option agreement, and the trial court was correct in dismissing the claims for specific performance and damages. It does not follow, however, that there cannot *1079 be a cause of action for deceptive trade practices under FDUTPA.
Section 501.204, Florida Statutes (2002) provides:
(1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
Trade or commerce is defined in section 501.203(8):
"Trade or commerce" means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. "Trade or commerce" shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.
Florida courts, in construing Chapter 501, are guided by federal decisions interpreting the Federal Trade Commission Act. § 501.204(2). A deceptive practice, under federal decisions, is one which is "likely to mislead consumers." Davis v. Powertel, Inc., 776 So.2d 971 (Fla. 1st DCA 2000) and cases cited.
The reservation form states that "Purchaser hereby reserves the right to purchase the aforedescribed Residence Home(s), in the Residence Home at Eagle Tree Community of the Ritz-Carlton Golf Club & Spa ..." for a specific price ($1,200,000) and Seller "assures Purchaser that the Purchase Price shall be that which is to be set forth in the Contract." It further provides that the Purchaser delivers a check in the amount of "$25,000.00 as a good faith deposit ... to be held by Seller in consideration for Seller's reservation of the aforedescribed Residence Homes(s) in Purchaser's name."
Despite paragraph 4, which says that the reservation form is not a purchase contract, the reservation form could have deceived this consumer into thinking that he was reserving the right to enter into a contract for a home on Lot 10A for $1,200,000. If he knew this reservation form was not worth the paper it was written on, which is the position of the defendant, why would he have written a check for $25,000? If, as the complaint alleges, defendant later offered a contract for a home on an inferior lot at a higher price, it could be found to have engaged in a classic bait and switch.[1]
Whether a reservation for the purchase of real estate can constitute a deceptive trade practice is a question of first impression in Florida.[2] Defendant relies on two cases from other jurisdictions to support its argument that this transaction cannot be deceptive; however, those cases are distinguishable.
In Leekha v. Wentcher, 224 Ill.App.3d 342, 166 Ill.Dec. 599, 586 N.E.2d 557 *1080 (1991), the prospective purchaser signed a property reservation receipt acknowledging a ten percent deposit and reserving the right to purchase a specified lot. In Leekha, however, the seller did not attempt to change either the property or the price. Rather the purchasers refused to sign the proffered contract because of an easement for a bike path.
In Freeman v. Greenbriar Homes, Inc., 715 S.W.2d 394 (Tex.App.1986), the buyers signed a contract to purchase a home and gave a deposit check to a salesman. The contract was not signed by the developer seller, however, and three weeks later the buyers were informed that the developer would only sign for an additional $4,000. Freeman is distinguishable because the seller had never bound itself to do anything.
We are well aware that reservation forms are widely used in this state to market real estate and that they can serve a useful purpose. When the reservation form, however, unequivocally represents that the consumer will be given the opportunity to purchase a particular lot or unit at a firm price, it can be likely to mislead. We accordingly reverse the order dismissing the complaint for failure to state a cause of action only in regard to Count III, the deceptive trade practice claim.
POLEN, C.J., and HAZOURI, JJ., concur.
NOTES
[1] "`Bait and switch' describes an offer which is made not in order to sell the advertised product at the advertised price, but rather to draw the customer to the store to sell him another similar product which is more profitable to the advertiser." Tashof v. Fed. Trade Comm'n, 437 F.2d 707, 709 n. 3 (D.C.Cir. 1970); Izadi v. Machado Ford, Inc., 550 So.2d 1135, 1139 n. 8 (Fla. 3d DCA 1989).
[2] An early version of Chapter 501 did not apply to sales of real estate, State ex rel. Herring v. Murdock, 345 So.2d 759 (Fla. 4th DCA 1977); however, the broad definition of trade or commerce contained in the present statute, which refers to "any property" was added in 1993. Ch. 93-38, Laws of Fla. Defendant does not contend that real estate is exempt. See also Southwest Sunsites, Inc. v. Fed. Trade Comm'n, 479 U.S. 828, 107 S.Ct. 109, 93 L.Ed.2d 58 (1986)(Federal Deceptive Practices Act applies to sale of undeveloped land to out of state purchasers).
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Filed 11/26/14 Sumrall v. Winco Foods CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
APRIL SUMRALL, D066360
Plaintiff and Appellant,
v. (Super. Ct. No. RIC504899)
WINCO FOODS, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Riverside County, John G.
Evans, Judge. Affirmed.
Biren/Katzman and Matthew B. F. Biren for Plaintiff and Appellant.
Nisson, Pincin & Hill, James W. Pincin and Duane H. Timmons for Defendant
and Respondent.
Plaintiff April Sumrall appeals a judgment entered on a jury verdict in favor of
defendant Winco Foods, LLC (Winco), in her personal injury action against it. On
appeal, she contends the trial court prejudicially erred by excluding deposition testimony
of Winco's expert witness, who resided more than 150 miles from the trial location and
was not called by Winco to testify at trial.
FACTUAL AND PROCEDURAL BACKGROUND
At about 1:00 p.m. on February 22, 2008, Sumrall entered a Temecula grocery
store operated by Winco. It had rained all morning that day. After apparently walking
through a carpeted foyer/cart room, she stepped onto the painted concrete floor inside the
store. She slipped, fell, and was injured.
Sumrall filed a personal injury action against Winco, alleging it was negligent by
allowing rain water to accumulate on the store's concrete floor, making it slippery and
dangerous. On December 13, 2011, Michael Stapleford, Winco's expert, was deposed in
California. Counsel for Sumrall and Winco were present. At his deposition, Stapleford
testified he lives in the State of Washington. On November 16, 2011, he went to the store
and inspected its floor. Based on his inspection, he concluded the "floor offers adequate
traction when it's dry. It is slippery when it's wet." As part of his inspection, he
performed a coefficient of friction test, or "slip index," using a tribometer. His wet floor
tests, performed with water completely covering the floor, showed the floor was "in the
slippery range" with coefficients of friction ranging from 0.10 to 0.16.1 He believes the
threshold for slipping is 0.43, meaning there would be no chance of anyone slipping. In
1 He also tested the floor when it was only "damp," resulting in coefficients of
friction of 0.19 and 0.32.
2
comparison, the American National Standards Institute (ANSI) apparently uses a
standard of 0.5. He believes that a floor becomes "slippery" in the range of 0.2 to 0.3.
At trial, Sumrall presented the testimony of Bethany Thompson, a Winco
employee at the Temecula store. Thompson testified she had been taught that Winco's
floors are slippery when wet. Winco presented the testimony of Rudy Morfin, the
Temecula store's manager, who testified the store's maintenance department kept a
"sweep log," to ensure the floors were clean, free of debris, and safe. The sweep log
showed that on February 22, 2008, an inspection was performed at 12:43 p.m. and
Sumrall fell at 1:01 p.m. that day. On cross-examination by Sumrall, Morfin testified he
endeavored to keep the store's floors dry because he recognized that a wet floor was a slip
hazard to customers. A videotape from the store's security camera showing Sumrall's fall
was played for the jury. Sumrall also presented the testimony of Vojislav Banjac, a risk
and safety scientist, regarding his opinion on the cause of her slip and fall. Based on his
viewing of the videotape and inspection of the site, Banjac stated her fall was caused by a
loss of traction followed by a loss of stability. He did not perform a slip resistance test on
the store's floor. Banjac stated that water could cause a lack of traction on the floor.
During trial, Winco apparently informed Sumrall it did not intend to call
Stapleford as one of its defense witnesses. Out of the jury's presence, Sumrall requested
that the trial court allow her to read into evidence certain excerpts from Stapleford's
deposition testimony because he resided out of state and was unavailable as a witness.
Winco objected to admission of that evidence, arguing Stapleford was not unavailable.
3
The trial court asked Sumrall for authority for reading the deposition testimony. Sumrall
replied that Stapleford testified at his deposition that he resided in the State of
Washington and no longer had a business office in Huntington Beach. She also argued
Stapleford was outside the subpoena power and was unavailable. Citing Code of Civil
Procedure2 former section 2025, she argued she should be allowed to present Stapleford's
sworn deposition testimony regarding his test results, which were favorable to her. The
court stated:
"This is something that just seems inherently unfair to me that, to
allow this type of testimony to come in on the last day of trial when
it might be difficult for [Winco] to get the person here in court to
testify. And the reason for that is is that . . . it's not uncommon in
civil cases that when the deposition of an expert is taken that the
party who hires the expert will not cross-examine his own expert at
the time of the deposition, and so even though . . . [Winco] would
have been present at the time, this isn't a third party witness. This is
really an expert witness. So my ruling's going to be that I'm not
going to allow you to do that."
Shortly thereafter, Sumrall rested her case in chief.
By a vote of 11 to 1, the jury returned a special verdict finding Winco was not
negligent in the use or maintenance of its property. The trial court entered judgment for
Winco. Sumrall filed a motion for new trial, arguing the court prejudicially erred by
excluding Stapleton's deposition testimony, thereby precluding Banjac from relying on
Stapleton's coefficient of friction test results to testify that the floor was extremely
slippery, or "slippery as ice," when wet. Winco opposed the motion. At the hearing on
2 All statutory references are to the Code of Civil Procedure unless otherwise
specified.
4
Sumrall's motion for new trial, the trial court concluded it had not erred by excluding
Stapleton's deposition testimony and, even if it had erred, the error was harmless in the
circumstances of this case. On August 15, 2012, the court entered an amended judgment
in favor of Winco. Sumrall timely filed a notice of appeal.
DISCUSSION
I
Admission of Deposition Testimony Generally
In general, all relevant evidence is admissible at trial. (Evid. Code, § 351.)
"Relevant" evidence includes evidence "having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action."
(Evid. Code, § 210.) Deposition testimony of witnesses, if relevant, may be admitted at
trial in certain circumstances. (§ 2025.620.) Section 2025.620 provides:
"At the trial or any other hearing in the action, any part or all of a
deposition may be used against any party who was present or
represented at the taking of the deposition . . . so far as admissible
under the rules of evidence applied as though the deponent were then
present and testifying as a witness, in accordance with the following
provisions:
"(a) Any party may use a deposition for the purpose of contradicting
or impeaching the testimony of the deponent as a witness, or for any
other purpose permitted by the Evidence Code. [¶] . . . [¶]
"(c) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the court
finds any of the following:
"(1) The deponent resides more than 150 miles from the place of the
trial or other hearing.
5
"(2) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is any of the following: [¶] . . . [¶]
"(D) Absent from the trial or other hearing and the court is unable to
compel the deponent's attendance by its process.
"(E) Absent from the trial or other hearing and the proponent of the
deposition has exercised reasonable diligence but has been unable to
procure the deponent's attendance by the court's process. . . ."
(Italics added.)
II
Exclusion of Stapleford's Deposition Testimony
Sumrall contends the trial court prejudicially erred by excluding Stapleford's
deposition testimony.
A
Sumrall asserts the trial court erred by denying her request to present Stapleford's
deposition testimony at trial because the record shows Stapleford resided in the State of
Washington, more than 150 miles from the place of trial (Riverside, California), and
Winco was represented by counsel at Stapleford's deposition. Therefore, she argues
section 2025.620's requirements for admission of Stapleford's deposition testimony were
satisfied.
Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248 (Monroy), at page 264,
stated:
"[S]ection 2025.620, subdivision (c)(1) permits the introduction of
deposition testimony in lieu of live testimony if '[t]he deponent
resides more than 150 miles from the place of trial or other hearing.'
Unavailability need not be shown. Hearsay can be used to provide
6
the foundation to establish that a deponent resides 150 miles from
the courthouse [citation]."
In this case, Stapleford testified at his deposition that he resided in the State of
Washington. We take judicial notice that the State of Washington is more than 150 miles
from the courthouse in Riverside, California. (Evid. Code, §§ 459, subd. (a), 452, subd.
(h); Monroy, supra, 164 Cal.App.4th at p. 264 [judicial notice that Puebla, Mexico, is
more than 150 miles from Los Angeles, California, courthouse]; cf. Dept. of Social
Welfare v. Gandy (1942) 56 Cal.App.2d 209, 211 [judicial notice that Santa Monica is
less than 100 miles from Los Angeles].) The parties do not cite, and we are unaware of,
any evidence or other information in the record suggesting Stapleford did not reside in
the State of Washington, or at least 150 miles from Riverside, California, at the time of
the April 2012 trial in this case. Accordingly, the record clearly shows section 2025.620,
subdivision (c)(1)'s requirement was satisfied. Furthermore, the record shows Winco was
represented by counsel at Stapleford's deposition. Because both requirements for
admissibility of Stapleford's deposition testimony under section 2025.620, subdivision
(c)(1), were satisfied, the trial court abused its discretion by excluding that deposition
testimony at trial. (Cf. Monroy, supra, 164 Cal.App.4th at pp. 264-266.) The court's
reason for excluding that testimony (i.e., it would be unfair to Winco because it could not
7
cross-examine Stapleford at trial) is not a valid reason under section 2025.620 to exclude
that testimony.3
B
Sumrall asserts the trial court's error in excluding Stapleford's deposition
testimony was prejudicial. She has the burden on appeal to show it is reasonably
probable she would have obtained a more favorable result had the error not occurred.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
Based on our review of the whole record, we conclude Sumrall has not carried her
burden to show the trial court's error was prejudicial under the Watson standard. Had the
court admitted Stapleford's deposition testimony, the jury would have heard evidence
regarding Stapleford's coefficient of friction test results. It would have learned that
Stapleford testified the store's floor is "slippery when it's wet" or, alternatively stated, is
"in the slippery range." His testing of the floor when wet resulted in coefficients of
friction ranging from 0.10 to 0.16, compared to his threshold for slipping of 0.43 (i.e.,
meaning there would be no chance of anyone slipping). He testified a floor becomes
"slippery" in the range of 0.2 to 0.3. If Stapleford's deposition testimony had been
admitted, the jury would have learned the store's floor was slippery when wet. However,
as Winco asserts, the jury already heard the testimony of two store employees (i.e.,
Morfin and Thompson) that the floor was slippery when wet. Also, Banjac, Sumrall's
3 Furthermore, the record does not show the trial court cited or relied on Evidence
Code section 352 to exclude Stapleford's deposition testimony. Therefore, there is no
reasonable ground on which the court could exclude that testimony.
8
expert, testified Sumrall slipped because of a loss of traction (i.e., because of water on the
floor). Stapleford's test results simply confirmed the slippery condition of the store's
floor when wet. Although his test results would have placed numerical values on the
floor's slippery condition when wet, neither those results nor Stapleford's deposition
testimony would have informed the jury that the floor was either extremely slippery or
slippery as ice.
Nevertheless, Sumrall argues that had Stapleford's deposition testimony been
admitted at trial, she could have then presented testimony by her own expert, Banjac,
regarding his interpretation of Stapleford's test results and, in particular, how slippery the
floor is when wet. However, the trial record does not contain any proof (e.g., offer of
proof by Sumrall) regarding what Banjac's testimony would have been had Stapleford's
test results been admitted at trial. Evidence Code section 354, subdivision (a), provides
that a verdict generally may not be reversed on appeal by reason of erroneous exclusion
of evidence unless "[t]he substance, purpose, and relevance of the excluded evidence was
made known to the court by the questions asked, an offer of proof, or by any other
means . . . ." An offer of proof "must set forth the actual evidence to be produced and not
merely the facts or issues to be addressed and argued [citation]. The trial court may
reject a general or vague offer of proof that does not specify the testimony to be offered
by the proposed witness." (People v. Carlin (2007) 150 Cal.App.4th 322, 334.) An offer
of proof generally must be made before or shortly after the trial court has made a ruling
excluding evidence. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 329; Espinoza v.
9
Calva (2008) 169 Cal.App.4th 1393, 1398.) Here, Sumrall does not cite to, and we are
unaware of, anything in the record showing she timely made an offer of proof to the trial
court regarding what facts would have been proved had Stapleford's deposition testimony
been admitted and Banjac been allowed to testify regarding Stapleford's test results.
Absent any such offer of proof, Sumrall, in effect, waived her right to challenge on
appeal the court's exclusion of that evidence. (Gutierrez v. Cassiar Mining Corp. (1998)
64 Cal.App.4th 148, 161-162; cf. Caira v. Offner (2005) 126 Cal.App.4th 12, 31.)
Assuming arguendo Sumrall made an adequate offer of proof or an exception
applies to that requirement, we nevertheless conclude she has not carried her burden to
show the admission of Stapleford's deposition testimony, and Banjac's testimony based
on it, probably would have resulted in a more favorable verdict for her. In arguing her
motion for a new trial, Sumrall asserted, for the first time, that had Stapleford's test
results been admitted, Banjac could have testified those test results showed the store's
floor was "slippery as ice" when wet. Sumrall repeats that argument in her appellate
briefs. However, she does not show that had Banjac testified the store's floor was
slippery as ice when wet, it is reasonably probable based on all of the other evidence in
the record that she would have obtained a more favorable verdict. She does not show it is
reasonably probable the jury would have found Winco negligent in the use or
maintenance of its property had that evidence been admitted. The jury already had
evidence showing the floor was slippery when wet. It also viewed a videotape showing
the incident, including the conditions at the time and how Sumrall slipped and fell.
10
Based on all of the evidence, the addition of evidence that the floor was slippery as ice
when wet would not likely have changed the jury's finding that Winco was not negligent.
Accordingly, the trial court's error in excluding Stapleford's deposition testimony was not
prejudicial under Watson. (People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed. Winco is entitled to costs on appeal.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
11
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NOS. 07-10-00122-CR, 07-10-00123-CR, 07-10-00171-CR and 07-10-00172-CR
IN THE COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AT
AMARILLO
PANEL A
MAY
4, 2011
GREGORIO RODRIGUEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2
AND THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NOS. 2009-455,818, 2009-458,190, 2009-425,597, 2009-422,825;
HONORABLE CECIL PURYEAR, JUDGE
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In each of these four appeals,
appellant Gregorio Rodriguez appeals his conviction on an open plea of guilty
and resulting sentence.
Offenses
committed on December 21, 2008:
In appellate case number 07-10-0172-CR, appellant was convicted of
evading arrest or detention with a vehicle and sentenced to 18 months in a
state jail facility;[1]
In appellate case number 07-10-0122-CR, appellant was convicted of
possession of marijuana of less than two ounces in a drug free zone and
sentenced to 12 months in the Lubbock County Jail.[2]
Offenses committed on October 25,
2009:
In appellate case number 07-10-0171-CR, appellant was convicted of
possession of a controlled substance listed in penalty group 1, cocaine of less
than one gram and sentenced to 24 months in a state jail facility;[3]
In appellate case number 07-10-0123-CR, appellant was convicted of
driving while intoxicated and sentenced to 6 months in the Lubbock County Jail.[4]
In each case, appellant’s
court-appointed appellate attorney has filed a motion to withdraw from
representation supported by an Anders
brief.[5] Agreeing with counsel’s conclusion that the
record fails to show any arguably meritorious issue capable of supporting an
appeal, we grant the motion to withdraw in each case and affirm the trial
court’s judgments.
Punishment hearing testimony showed
that on December 21, 2008, a police officer saw a vehicle driving
erratically. The officer attempted a
traffic stop. As the officer followed
the vehicle, he saw a person leap from the vehicle while it remained in
motion. The vehicle then jumped a curb,
knocked down a fence, and collided with a parked vehicle in a driveway. The location of the accident was within 1,000
feet of a public school. When the
officer entered the passenger compartment to turn off the ignition and place
the transmission in park, he saw an open container of alcohol. An officer later also found a baggy
containing what he believed was marijuana.
Police eventually were able to identify appellant as the person
operating the vehicle.
Punishment evidence also showed that
on October 25, 2009, a motor vehicle driven by appellant struck a police
vehicle in the presence of officers.
Appellant attempted to flee on foot, but was apprehended and arrested
for evading arrest or detention. An
officer detected the odor of alcohol on appellant’s breath and the odor of
marijuana “on his person.” While
searching appellant for weapons, the officer discovered a baggie containing
what he believed was marijuana. In the
officer’s opinion, appellant appeared intoxicated. He had difficulty standing and walking and
was unresponsive to questions. The
officer transported appellant to a holding facility. As appellant left the police vehicle, a clear
plastic baggie containing a white powder fell from his pant leg. According to a field test, the substance was
cocaine. This was later confirmed by the
Texas Department of Public Safety Crime Laboratory.
Appellant was charged by indictment
or information with the four offenses, and entered guilty pleas to the charged
offenses without a plea bargain agreement.
A punishment hearing in each case was held the same day as the plea
hearing. The trial court admonished
appellant of the applicable ranges of punishment and determined he was a United
States citizen. It also explained and determined
appellant wished to waive the right to trial by jury and the right against
self-incrimination. Two police officers
gave the testimony we have summarized of the circumstances of the December 2008
and October 2009 offenses. Appellant
presented two witnesses. A deacon
testified of appellant’s church involvement over the preceding five
months. The second witness, a relative
of appellant, testified of his industry in the workplace, abstinence from
alcohol, and family commitment.
Following the close of evidence and arguments, the court sentenced
appellant in each case. Appellant
obtained trial court certification of the right of appeal and timely appealed.
Thereafter, appellant’s appointed appellate
counsel filed a motion to withdraw supported by an Anders brief. In the brief,
he certifies to his diligent review of the record and his opinion under the
controlling authorities and facts of the cases no reversible error or arguably
legitimate ground for appeal exists. The
brief discusses the procedural history of the case and the events at the plea
hearing. Counsel discusses the
applicable law and sets forth the reasons he believes no arguably meritorious
issues for appeal exist. A letter to
appellant from counsel, attached to counsel’s motion to withdraw, indicates
that a copy of the Anders brief and
the motion to withdraw were served on appellant, and counsel advised appellant
of his right to review the record and file a pro se response. Johnson v. State, 885
S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. refused). By letter, this court also notified appellant
of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant did not file a response.
In conformity with the standards set out by
the United States Supreme Court, we will not rule on the motion to withdraw
until we have independently examined the record in each matter. Nichols
v. State, 954 S.W.2d 83, 86 (Tex.App.--San
Antonio 1997, no pet.). If we determine
the appeal has arguable merit, we will remand it to the trial court for
appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
In the Anders
brief, counsel concludes the appeal is frivolous. We have made an independent review of the
entire record to determine whether arguable grounds supporting an appeal
exist. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App.
2005). We find no arguable grounds
supporting a claim of reversible error, and agree with counsel that the appeal
is frivolous.
Accordingly, we grant counsel’s motion to
withdraw[6]
in each case and affirm the judgments of the trial court.
James
T. Campbell
Justice
Do
not publish.
[1]
A person commits the offense of evading arrest or detention if he
intentionally flees a person he knows is a peace officer lawfully attempting to
arrest or detain him. Tex.
Penal Code Ann. § 38.04(a) (West Supp. 2010). The offense is a state jail felony if the
actor uses a vehicle while in flight and the actor has not previously been
convicted under Penal Code § 38.04. Tex.
Penal Code Ann. § 38.04(b)(1)(B) (West Supp. 2010).
[2]
Possession of two ounces or less of marijuana is a Class B misdemeanor,
Tex. Health & Safety Code Ann. § 481.121(b)(1)
(West 2010), but increases to a Class A misdemeanor if committed within 1,000
feet of the real property of a school.
Tex. Health & Safety Code Ann. § 481.134(f)(1)
(West 2010). A Class A
misdemeanor is punishable by confinement in jail for up to one year and/or a
fine not to exceed $4,000. Tex. Penal Code Ann. § 12.21 (West 2003).
[3] Possession of less than one gram of
cocaine is a state jail felony. Tex.
Health and Safety Code Ann. § 481.102(3)(D) (West
2010) (cocaine is a Penalty Group 1 controlled substance) and Tex. Health and
Safety Code Ann. § 481.115(a),(b) (West 2010) (possession of less than one gram
of cocaine is a state jail felony). A
state jail felony is punishable by confinement in a state jail facility for any
term of not more than two years or less than 180 days and a fine not to exceed
$ 10,000. Tex. Penal
Code Ann. § 12.35 (West 2010).
[4]
In the absence of facts not charged here, driving while intoxicated is a
Class B misdemeanor. A person commits
the offense of driving while intoxicated if the person is intoxicated while
operating a motor vehicle in a public place.
Tex. Penal Code Ann. § 49.04(a) (West 2003).
[5]
Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding).
[6] Counsel shall, within five days
after the opinion is handed down, send his client a copy of the opinion and
judgment, along with notification of the defendant’s right to file a pro se petition for discretionary
review. Tex. R. App. P. 48.4.
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FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWAR TIGOR, No. 08-71022
Petitioner, Agency No. A095-630-007
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Edwar Tigor, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and
review findings of fact for substantial evidence. Husyev v. Mukasey, 528 F.3d
1172, 1177 (9th Cir. 2008). We deny the petition for review.
Substantial evidence supports the conclusion that changed circumstances do
not excuse Tigor’s untimely asylum application. See 8 U.S.C. § 1158(a)(2)(D); 8
C.F.R. § 1208.4(a)(4). Accordingly, Tigor’s asylum claim fails.
With respect to withholding of removal, the record does not compel the
conclusion that Tigor established past persecution, because the harassment and
discrimination he experienced in Indonesia due to his Christian faith did not rise to
the level of persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir.
2009) (rejecting claim that being beaten and robbed by youths and accosted in the
family car by a threatening mob compelled finding of past persecution); Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (holding that unfulfilled threats and
a single incident of physical violence did not “evince actions so severe as to
compel a finding of past persecution”). The standard applied by the BIA in
evaluating past persecution is consistent with our law. See Nagoulko v. INS, 333
F.3d 1012, 1016-17 (9th Cir. 2003). Substantial evidence also supports the BIA’s
determination that Tigor failed to establish a clear probability of future
persecution. See Wakkary, 558 F.3d at 1066 (“[a]n applicant for withholding of
2 08-71022
removal will need to adduce a considerably larger quantum of individualized-risk
evidence to prevail”).
Finally, substantial evidence supports the BIA’s denial of Tigor’s CAT
claim because he failed to show it is more likely than not that he will be tortured at
the instigation of, or with the consent or acquiescence of, the Indonesian
government. See id. at 1067-68.
PETITION FOR REVIEW DENIED.
3 08-71022
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COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-05-291-CR
TYLER HUDSON HEARNE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
------------
OPINION
------------
I. Introduction
Appellant Tyler Hudson Hearne
appeals his conviction and eighty-year sentence for murder. In his first point, appellant contends that
the trial court erred by failing to instruct the jury during the punishment
phase on Asudden
passion,@ which provides for a lesser punishment range. In appellant=s second point, he complains that the trial court erred by conducting
a conference with a juror outside the presence of appellant and his trial
counsel. We affirm.
II. Background Facts
Appellant was charged with
capital murder in the shooting death of his father, William Hearne. After appellant entered a plea of not guilty,
the jury found him guilty of the lesser offense of murder and assessed his
punishment at eighty years in the Institutional Division of the Texas Department
of Criminal Justice.
III. Instruction on Sudden Passion
In appellant=s first point, he asserts that the trial court erred by failing to
instruct the jury on sudden passion during the punishment phase. The State contends that appellant was not
entitled to an instruction on sudden passion because there was no evidence of
sudden passion arising from a legally adequate cause.
A. Applicable Law
Section 19.02 of the penal
code discusses the offense of murder. Tex. Penal Code Ann. ' 19.02 (Vernon 2003). The
pertinent parts of section 19.02 provide,
(a) In this section:
(1) AAdequate cause@
means cause that would commonly produce a degree of anger, rage, resentment, or
terror in a person of ordinary temper, sufficient to render the mind incapable
of cool reflection.
(2) ASudden passion@
means passion directly caused by and arising out of provocation by the
individual killed or another acting with the person killed which passion arises
at the time of the offense and is not solely the result of former provocation.
. . . .
(d)
At the punishment phase of a trial, the defendant may raise the issue as to
whether he caused the death under the immediate influence of sudden passion
arising from an adequate cause. If the
defendant proves the issue in the affirmative by a preponderance of the
evidence, the offense is a felony in the second degree.
Id. ' 19.02(a), (d).
B. Analysis
If a defendant is convicted
of murder, he may argue at punishment that he caused the death while under the
immediate influence of sudden passion arising from an adequate cause. Trevino v. State, 100 S.W.3d 232, 237
(Tex. Crim. App. 2003). Sudden passion is
Aan excited and agitated mind at the time of the killing caused by an
act of the deceased.@ Rayme v. State, 178 S.W.3d 21, 28
(Tex. App.CHouston [1st
Dist.] 2005, pet. ref=d) (quoting
Hobson v. State, 644 S.W.2d 473, 478 n.10 (Tex. Crim. App. 1983)). Sudden passion is a mitigating circumstance
that, if found by the jury to have been proven by a preponderance of the
evidence, reduces the offense from a first degree felony to a second degree
felony. McKinney v. State, 179
S.W.3d 565, 569 (Tex. Crim. App. 2005); see Tex. Penal Code Ann. ' 19.02(d). Thus, before a
defendant is allowed a jury instruction on sudden passion, he must prove that
there was an adequate provocation; that a passion or an emotion such as fear,
terror, anger, rage, or resentment existed; that the homicide occurred while
the passion still existed and before there was reasonable opportunity for the
passion to cool; and that there was a causal connection between the
provocation, the passion, and the homicide.
McKinney, 179 S.W.3d at 569.
Thus, a sudden passion charge should have been given if some evidence
shows that appellant=s mental
state rose beyond a bare claim of fear to render him incapable of rational
thought and collected action. See
Kennedy v. State, 193 S.W.3d 645, 654 (Tex. App.CFort Worth 2006, pet. filed) (op. on reh=g en banc).
Appellant contends that the
testimony of Ramon Salinas, Stephanie Teran, and Janis Davies demonstrated that
he was entitled to an instruction on sudden passion. He asserts that the evidence shows that he Aacted out of anger, rage, resentment and terror that [were] the
product of his father=s threats to
essentially have him put in jail, or to go to a military school.@ Appellant points to Salinas=s testimony that appellant admitted shooting his father after appellant=s father screamed him for having drugs in the house. Salinas stated
that appellant told him that his father flushed the drugs down the toilet and
told appellant that he could either go to jail or go to a military school.
Additionally, appellant asserts that Teran=s testimonyCthat
appellant admitted shooting his father one hour prior and that appellant was Amad, [because his father] was going to call the cops on him. That his dad was going to call the cops on
him and he got upset.@Craised the issue. Teran stated
that appellant told her that his father was in the process of dialing 911 and
appellant shot him before he dialed the last digit. Appellant contends that Davies= testimony regarding the shooting was the same as Teran=s testimony.
However, these statements
fail to show that appellant had adequate cause to shoot his father. As stated above, adequate cause means Acause that would commonly produce a degree of anger, rage, resentment,
or terror in a person of ordinary temper.@ Tex. Penal Code Ann. ' 19.02(a)(1). The mere fact
that a defendant acts in response to the provocation is not sufficient to
warrant a charge on sudden passion. Trevino,
100 S.W.3d at 241. Appellant asserts
that he was angry because his father told him that he could go to jail or
military school. The evidence does not
reflect fear or anger that was so strong and overpowering that it rendered
appellant incapable of rational thought and collected action. See McKinney, 179 S.W.3d at 568. Therefore, we hold that the trial court did
not err by refusing to submit an instruction on sudden passion because the
evidence does not show that appellant had adequate cause to shoot his
father. Thus, we overrule appellant=s first point.
IV. Juror Conference
In appellant=s second point, he contends that the trial court erred by conducting a
private conference with a juror outside the presence of appellant and his trial
counsel. On appeal, appellant asserts
that the private conference violated 1) his rights under article 36.27 of the
code of criminal procedure, which prescribes the method by which a trial court
may communicate with a juror, 2) his right to be present for all phases of
trial, and 3) his right to have a court reporter present to transcribe the
proceedings. See Tex. Code Crim. Proc. Ann. arts. 33.03
(Vernon 1989), 36.27 (Vernon 1981); Tex.
R. App. P. 13.1.
A. Applicable Facts
On July 20, 2005, the third
day of trial, the trial judge told the lawyers that she wanted to speak to them
at the bench on the record. The trial
judge disclosed that Juror Maddux wanted to talk with her. The trial judge told counsel,
This is what she said to me. She was tearful and she said that she was
afraid that perhaps she had [not] filled out her questionnaire completely
because she had forgotten to tell us that she had a stepson who was a victim B not
a victim but who had an alcohol-related death by drowning.
. . . .
In fact, scoot up here a little bit. And [she] is very afraid that she has made
[a] horrible problem with this case. I
said, it=s
just not. I said that question is not on
the questionnaire. She said, well, they
asked about drugs, and then I said, most people don=t
consider alcohol a drug. She didn=t
even think about it until Dr. Krouse testified yesterday. And when her stepson had died, their family
had gone to talk to Dr. Peerwani, so it was just all the memories coming back.
And she volunteered, without me even asking her, Ait
doesn=t
make me feel one way or another about this case. It=s just that I feel like I
need to tell you because I didn=t tell you,@ you
know. So there you have it. I left her in my office because I=m
thinking about taking her her questionnaire just to calm her because B and
then I=ll
enter it in the record. I mean, they=re
all in the record anyway. But I mean,
she feels like she=s
done something wrong. That=s
what this is about. And she didn=t B
because we harp so much on saying everything, you know, and report anything
even if it=s
inadvertent, and I really do want them to do that.
And I think part of the result is my saying that
to them, there=s
hardly a trial that goes by that I don=t have to talk to a juror
individually.
After learning about the
private conference in the trial judge=s chambers without a court reporter, appellant=s counsel stated,
Judge,
I haven=t
researched this point. I=m not
quarreling with the Court=s
rendition of what the conversation was, but I=m not
sure the Court talking to the juror and saying most people don=t
think alcohol is a drug and other conversations and there was no court reporter
back there, that causes me some angst.
The trial judge then told appellant=s counsel that he could explore the issue in a motion for new
trial. Appellant=s counsel moved for a mistrial Ain an abundance of caution, because of the ex parte conversation with
the juror and it=s not
recorded,@ and the
trial court denied the motion. After
denying the motion for mistrial, the trial judge continued talking about her
conversation with the juror.
THE COURT:
The stepson was drinking. She
said that there may have been some problems before that with drug use in his
part, but it wasn=t
related to his death at all, and she didn=t even think about it. Didn=t think about it through voir
dire. She said, I don=t
know if I repressed it. But as soon as
Dr. Krouse testified, I started thinking about our meeting with Dr. Peerwani.
[DEFENSE COUNSEL]: Judge, I don=t
have any problem with the juror seeing her questionnaire, although, I am making
a request that any further proceedings or conversations with this juror be
taken down if it be in chambers, to preserve the record.
THE COURT:
That=s
going to be denied. You can question her
on a motion for new trial. I=m not
going to B
given her emotional state, that she feels like she=s
done something wrong, I mean, she thinks she=s messed the trial up. She said, I=m
afraid B you know, so I>m not
going to run the court reporter in there because I think that would traumatize
her. Now, if you want to tell her, thank
you so much for sharing with us. We=re
going to continue with the trial, and put her back with the jury room and not
show her that.
The trial continued and appellant=s motion for new trial was denied by operation of law. This appeal followed.
B. Error Preservation
To preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling if they are not apparent from the
context of the request, objection, or motion.
Tex. R. App. P.
33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998)
(op. on reh=g), cert. denied, 526 U.S. 1070
(1999). Further, the trial court must
have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court=s refusal to
rule. Tex.
R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.
Crim. App. 2004).
At trial, appellant=s objections were limited to the following: Athere was no court reporter@; Ain an
abundance of caution, because of the ex parte conversation with the juror and
it=s not recorded@; and AI am making a request that any further proceedings or conversations
with this juror be taken down.@ At no point did counsel assert
that the trial court=s ex parte
conversation was a violation of article 36.27 of the code of criminal
procedure. See Tex. Code Crim. Proc. Ann. art. 36.27
(providing that communication with jurors should be through the bailiff, in
writing, previewed by defense counsel, read in open court, and made a part of
the record). However, it is fair to say
that counsel made it clear that he was objecting to the ex parte nature of the
conversation along with the failure to have a court reporter present
transcribing the discussion for the record.
And although counsel did not directly cite article 33.03Cwhich is the statutory source of a defendant=s right to be present at all phases of trialCor directly reference appellate rule 13.1Cwhich requires a court reporter to attend all court sessions and make
a full record of all proceedings unless waived by agreementCit is clear from the record that counsel and the trial court
understood these to be his two objections at trial. Tex.
Code Crim. Proc. Ann. art. 33.03; Tex.
R. App. P. 13.1. Counsel then
moved for a mistrial, which the trial court denied stating that he could bring
any of these issues up in a motion for new trial, at which time he could
examine the juror.[1]
Although his primary
complaint on appeal focuses on his claimed violation of article 36.27, we hold
that appellant waived his 36.27 complaint at trial by failing to object on this
basis. We do, however, also hold that
appellant has preserved his objections at trial and now on appeal regarding his
right to be present under article 33.03 and his right to have a full record
made under appellate rule 13.1(a). Tex. Code Crim. Proc. Ann. art. 33.03;
Tex. R. App. P. 13.1. We turn to the merits of those
complaints.
C. Error Analysis
Article 33.03 provides that a
defendant has the right to be present during the trial of all felony
prosecutions. Tex. Code Crim. Proc. Ann. art. 33.03. Appellate rule of procedure 13.1(a) requires
the court reporter to take down all proceedings unless otherwise agreed to by
the parties.[2] It is obvious the trial court complied with
neither of these provisions in handling this particular juror=s concerns, thereby committing trial court error.
D. Harm Analysis
Having determined that the
trial court erred by conducting a private conference with the juror, without
appellant and both counsel present, and without a court reporter present, we
must now conduct a harm analysis to determine whether the errors call for
reversal of the judgment. Tex. R. App. P. 44.2. If the errors are constitutional, we apply
rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the
errors did not contribute to appellant=s conviction or punishment. Tex. R. App. P. 44.2(a). Otherwise, we apply rule 44.2(b) and
disregard the errors if they did not affect appellant=s substantial rights. Tex. R. App. P. 44.2(b); see Mosley,
983 S.W.2d at 259; Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.
App.CFort Worth 1998, pet. ref=d). A substantial right is
affected when the error had a substantial and injurious effect or influence in
determining the jury=s
verdict. King v. State, 953
S.W.2d 266, 271 (Tex. 1997) (citing Kotteakos v. United States, 328 U.S.
750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961 S.W.2d at
643. In making this determination we
review the record as a whole. See
Johnson v. State, 967 S.W.2d 410, 417 (Tex. 1998).
The article 33.03 right to be
personally present is based upon a defendant=s right to confront witnesses against him under both the Texas and
United States constitutions. Miller
v. State, 692 S.W.2d 88, 90-91 (Tex. Crim. App. 1985); Hodges v. State,
116 S.W.3d 289, 296 (Tex. App.CCorpus Christi 2003, pet. ref=d); Kerr v. State, 83 S.W.3d 832, 834 (Tex. App.CTexarkana 2002, no pet.).
Courts have also held that the right to be present can involve due
process rights under certain circumstances.
See, e.g., Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App.
2001). However, because appellant raised
no constitutional complaint regarding this error, we treat the error as
statutory and apply a harmless error analysis under rule 44.2(b), in which we
ask whether the error affected any of appellant=s substantial rights. See
Tracy v. State, 14 S.W.3d 820, 827 (Tex. App.CDallas 2000, pet. ref=d).
Additionally, the appellate
rule 13.1 violation regarding the trial court=s failure to have the conversation transcribed by the court reporter
has been interpreted to create a statutory right, not a constitutional
right. See Tanguma v. State, 47
S.W.3d 663, 676 (Tex. App.CCorpus Christi 2001, pet. ref=d) (holding failure to record challenges for cause is
nonconstitutional error), disapproved of in part by Valle v. State, 109
S.W.3d 500, 508-09 (Tex. Crim. App. 2003) (disapproving of a portion of Tanguma
but only to extent Tanguma court held that no objection to preserve
error was required); see also Brossette v. State, 99 S.W.3d 277,
285-86 (Tex. App.CTexarkana
2003, pet. dism=d, untimely
filed) (citing Tanguma for proposition that failure of court reporter to
record part of record is nonconsitutional error). Failure to record a bench conference has been
held to be Aa procedural
defect or irregularity that must be disregarded unless a substantial right was
affected.@ Johnson v. State, 82 S.W.3d 471, 473
(Tex. App.CAustin 2002,
no pet.); Mitten v. State, 79 S.W.3d 751, 763-64 (Tex. App.CCorpus Christi 2002), rev=d on other grounds, 145 S.W.3d
225 (Tex. Crim. App. 2004). We conclude
that the failure to record a conversation such as this does not implicate
constitutional error, so we also apply rule 44.2(b) and disregard the error
unless we determine that appellant=s substantial rights were implicated as to this complaint as well. Tex.
R. App. P. 44.2(b). The Supreme
Court provides us with some further guidance in Rushen v. Spain, 464
U.S. 114, 104 S. Ct. 453 (1983).
In Rushen, a juror in
a similar circumstance recalled facts regarding an unrelated murder that she
had failed to disclose during voir dire.
The jurors had been asked to disclose crimes of violence and their
attitudes for any racial groups, including the Black Panthers. Id. at 115-16, 104 S. Ct. at 454. The juror went to the judge=s chambers twice to let the judge know she knew of this other
unrelated murder victim. The judge told her
not to be concerned once the juror reaffirmed she would not be affected by
it. The judge failed to record either
conversation and failed to let the defendants know about them either. However, once counsel learned of the
conversation and filed their motions for new trial, the court held a hearing on
them in which the juror was examined about the conversations. The judge concluded the conversations Alacked any significance@ and that the defendants had suffered no prejudice. Id.
The defendant pursued a writ of habeas corpus, and the district
court held that his right to be present had been denied along with his right to
counsel. Id. at 117, 104 S. Ct.
at 455. The Ninth Circuit affirmed. Id.
The Supreme Court reversed
despite recognizing the right to personal presence at all critical stages of
trial along with the right to counsel. Id.
at 122, 104 S. Ct. at 457. The
Court balanced those interests with the Anecessity for preserving society=s interest in the administration of criminal justice.@ Id. at 118, 104
S. Ct. at 455. Continuing, the
Court observed that Aremedies
should be tailored to the injury suffered . . . and should not unnecessarily
infringe on competing interests.@ Id. (quoting United
States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668 (1981)). It held, AThe lower federal courts= conclusion that an unrecorded ex parte communication between
trial judge and juror can never be harmless error ignores these day-to-day
realities of courtroom life and undermines society=s interest in the administration of justice.@ Id. at 118-19, 104 S.
Ct. at 456. Such trial court error, it
observed, could also be remedied by a post-trial hearing.
Here, the trial court
notified counsel of the conversation immediately. Appellant then told the trial judge that he
did not have a problem with the trial court=s rendition of what occurred, plus that rendition was transcribed
while the trial court disclosed the conversation to both counsel at the
bench. Moreover, appellant did not
pursue or present his motion for new trial or request a hearing on it to
further examine this particular juror.
While a motion for new trial is not generally a required prerequisite to
appeal, a motion, presentment and hearing are necessary to Aadduce facts not in the record.@ Tex. R. App. P. 21.2; Rozell v. State, 176 S.W.3d 228,
230 (Tex. Crim. App. 2005). Further,
based upon the trial judge=s rendition of the conference, the conversation did nothing more than
allow the juror to report her concern of failure to properly disclose something
during voir dire. During the conference,
the juror told the trial judge that she was concerned that she failed to
disclose some information in her juror questionnaire: that her stepson died in an alcohol-related
drowning. She believed that she had
caused a major problem in failing to disclose this on her questionnaire in
response to a question asking about drugs.
The juror had recalled her family speaking with the medical examiner,
Dr. Peerwani, regarding the death of her stepson, which the juror recalled
after she heard Dr. Krouse, from Dr. Peerwani=s office, testifying in this case.
The trial judge apparently tried to alleviate the juror=s concerns by telling the juror that Amost people don=t consider
alcohol a drug.@ While the case revealed drug use and abuse of
alcohol by both the victim and appellant, we cannot say this error impacted a
substantial right in the case. The trial
judge explained that she was trying to minimize this juror=s unfounded concern on an unrelated collateral matter. Since the appellant accepted the accuracy of
the trial court=s rendition
of the facts, his or his counsel=s presence during the conversation would not have benefitted
appellant. If appellant is contending he
would have asked the juror other questions, he could have done so at a hearing
on his motion for new trial. Likewise,
since appellant accepted the trial court=s rendition of what transpired, having the court reporter=s transcription of the conversation would serve no purpose. While it is most assuredly best for a trial
court to insure a defendant=s presence, along with counsel, and to record all proceedings, we
cannot say that here, under these facts, a substantial right of the appellant=s has been impacted. See
Leger v. State, 688 S.W.2d 130, 133 (Tex. App.CBeaumont 1985, no pet.). The
court of criminal appeals has held that a communication between the trial court
and the jury, although not made in compliance with statutory provisions, but
which does not amount to an additional instruction by the trial court upon the
law or some phase of the case does not constitute reversible error. McGowan v. State, 664 S.W.2d 355, 358
(Tex. Crim. App. 1984). Here, the trial
court did not instruct the juror on the law or discuss the impending case. The trial judge merely listened to the juror=s concern that she had improperly failed to disclose something in her
responses to the jury questionnaire.
Thus, we overrule appellant=s second point.
V. Conclusion
Having overruled appellant=s two points, we affirm the trial court=s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL F: LIVINGSTON, GARDNER, and WALKER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
September 7, 2006
[1]Appellant
filed a generic motion for new trial, which was denied by operation of law
without a hearing.
[2]Appellant
raised no constitutional error, federal or state, regarding any of the
complaints he asserts on appeal, so we do not address any constitutional
issues.
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
No. 15-440C
(Filed Under Seal: May 29, 2015)
(Reissued for Publication: June 15, 2015) 1
*****************************************
BANNUM, INC., *
*
Plaintiff, *
*
v. * Preliminary Injunction; Judgment on
* the Administrative Record;
THE UNITED STATES, * Competition in Contracting Act,
* 31 U.S.C. § 3553(d)(3);
Defendant, * Bid Protest; Solicitation; Override;
* Stay; Residential Re-Entry Services
and *
*
DISMAS CHARITIES, INC., *
*
Defendant-Intervenor. *
****************************************
Justin T. Huffman, Auburn, NY, with whom was Joseph A. Camardo, Auburn, NY, at argument,
for plaintiff.
Devin A. Wolak, United States Department of Justice, Washington, DC, for defendant.
Alexander D. Tomaszczuk, McLean, VA, for defendant-intervenor.
OPINION AND ORDER
SWEENEY, Judge
Before the court in this bid protest is plaintiff Bannum, Inc.’s motion for a preliminary
injunction and defendant’s cross-motion for judgment on the administrative record. Plaintiff was
the incumbent contractor providing the Federal Bureau of Prisons (“BOP”) with Residential
Reentry Center (“RRC”) Services for federal offenders (“inmates” or “residents”) in Clarksburg,
West Virginia. Prior to the expiration of plaintiff’s then-existing contract, the BOP issued a new
solicitation for RRC Services in northern West Virginia. Plaintiff and one other offeror
submitted proposals. During the procurement process, plaintiff filed one Government
Accountability Office (“GAO”) protest, and subsequently, two agency-level protests; all were
1
The court provided the parties with an opportunity to suggest redactions to this ruling,
but in a June 12, 2015 joint status report, they indicated that no redactions were necessary.
unsuccessful. Because these protests extended the procurement, the BOP entered into three
separate bridge contracts with plaintiff. Ultimately, the BOP awarded the new contract to
Dismas Charities, Inc. (“defendant-intervenor” or “Dismas”). Because it filed a postaward
protest with the GAO within ten days, plaintiff was entitled to an automatic stay pursuant to the
Competition in Contracting Act (“CICA”). See 31 U.S.C. § 3553(d)(3) (2012). During the
pendency of the GAO protest, plaintiff’s third bridge contract with the BOP expired. Rather than
enter into a fourth bridge contract with plaintiff, the BOP exercised its option under a separate
contract with defendant-intervenor to transfer some of the inmates to Dismas’s RRC facility
located in Charleston, West Virginia. The BOP transferred the remaining inmates to an RRC
facility in Pittsburgh, Pennsylvania operated by Renewal, Inc. (“Renewal”), pursuant to an
existing contract with it. The discrete issue in this protest is whether the BOP’s transfer of
residents from plaintiff’s Clarksburg RRC facility to defendant-intervenor’s and Renewal’s
respective RRC facilities, pursuant to contracts that are distinct from the one currently being
protested before the GAO, resulted in a de facto override of the CICA stay. For the reasons set
forth below, the court grants defendant’s motion and denies plaintiff’s motion.
I. BACKGROUND
On June 5, 2012, the BOP issued Request for Proposals (“RFP”) 200-1179-MA
(“solicitation”), soliciting proposals to provide RRC Services for “male and female federal
offenders” in any one of several named counties in northern West Virginia. 2 AR 1. The
solicitation required the contractor to offer a community-based residential and nonresidential
correctional service, including providing employment, residence development, and other self-
improvement opportunities, in order to assist inmates in transitioning from a prison environment
to the community at large. Id. at 47. On July 26, 2012, plaintiff filed a preaward bid protest
with the GAO that challenged certain terms of the solicitation. Id. at 511-18. The BOP then
extended the proposal submission deadline indefinitely, stating in its amendment to the
solicitation that another amendment establishing the new proposal deadline would be issued at a
later date. Id. at 235. Subsequently, on August 15, 2012, the BOP took corrective action by
making certain revisions to the solicitation, and changing the proposal submission deadline to
October 1, 2012. Id. at 236-37. The next day, or August 16, 2012, the GAO dismissed
plaintiff’s protest as academic. Id. at 519.
On February 11, 2013, the BOP sent both plaintiff and defendant-intervenor
individualized letters stating that their respective proposals fell within the competitive range of
the solicitation, and requesting additional information. Id. at 279, 456. Defendant then entered
into discussions with Dismas between February and April 2013. Id. at 480, 486, 496. The BOP
also engaged in discussions with plaintiff between February 2013 and June 2014. Id. at 305,
343, 347, 356, 360, 423, 426, 436, 440, 443, 447. The BOP’s discussions with plaintiff during
this period concerned various construction code and permit requirements for plaintiff’s plans to
repair and improve its facility, and also pertained to plaintiff’s goal of constructing a new
parking lot. Id. at 423-55. During these discussions, plaintiff filed two agency-level protests.
2
The court derives the facts in the “Background” section from the administrative record
(“AR”) and from the appendix attached to defendant’s response to plaintiff’s motion for a
preliminary injunction (“Def.’s App’x).
2
The first was filed on January 7, 2014, id. at 520, which the BOP denied on February 20, 2014,
id. at 522. Plaintiff filed its second agency-level protest on June 11, 2014, id. at 523, which the
BOP denied in part and dismissed in part on July 17, 2014, id. at 528.
At the time that the solicitation was issued in 2012, plaintiff was in the incumbent
contractor for the existing BOP contract for RRC Services in Clarksburg, West Virginia. Id. at
539. That contract expired on July 31, 2013. Id. at 711. Subsequently, because the
procurement was ongoing, defendant issued a limited sole-source bridge contract to plaintiff for
August 1, 2013, through February 28, 2014. Id. at 711, 715. Because no contract award had
been made by February 28, 2014, defendant entered into a second seven-month sole-source
bridge contract with plaintiff for March 1, 2014, through September 30, 2014. Id. at 727. At
the time that the second bridge contract expired and no contract award had been made, once
again, plaintiff was awarded a third seven-month sole-source bridge contract for October 1,
2014, through April 30, 2015. Id. at 736. In addition, on November 12, 2014, the BOP entered
into a contract modification to its existing contract with Dismas, “exercis[ing] a six-month
extension for [RRC] Services in Charleston[,] West Virginia” for December 1, 2014, through
May 31, 2015. Id. at 899.
In early January 2015, BOP monitors visited plaintiff’s Clarksburg facility after a heavy
snowstorm. Id. at 798. They observed that water was leaking in several areas of the men’s
dormitory ceiling, causing damage that risked a ceiling collapse, among other hazards. Id.
After the BOP monitors expressed concerns, plaintiff’s facility manager contacted the
Clarksburg fire department, which inspected the space and found significant water penetration
that posed a threat to the electrical system. Id. Because the BOP monitors observed that the
ceiling tiles were falling, that the insulation and wood studs were saturated with water, and that
water continued to gather in the light fixtures, plaintiff relocated the residents to a hotel, so that
these issues could be resolved. Id. at 799-800. Before the residents were moved, John Rich,
plaintiff’s president, “disputed the need to relocate the residents” in an electronic-mail message.
Id. at 799. By January 13, 2015, the ceiling had stopped leaking, the lights were working again,
and the residents were moved back to plaintiff’s facility. Id. at 807.
On January 22, 2015, the BOP issued to plaintiff a report, based on its full monitoring
inspection of plaintiff’s facility, describing the deficiencies that the monitors had observed. Id.
at 752. Specifically, the BOP found that: carpets throughout the facility were stained and dirty,
there was excessive dust and lint behind appliances, the refrigerator housing resident meals was
excessively dirty with mold and spilled liquids, and the resident food lockers were dirty and
contained a dark, sticky substance on the shelves. Id. at 754. In addition, plaintiff’s meal log
system did not provide any means by which defendant could ensure that the residents were
being fed. Def.’s App’x 5. When the BOP monitors weighed portions of a meal served on a
particular day to determine if dietary minimums were being met, they found that the meal
weights did not match menu requirements. Id. Specifically, they found that for several foods,
the served portion was often 0.3 ounces to 1.3 ounces less than what was required. Id.
Moreover, when plaintiff undertook medicine distribution, the tracking log numbers were at
times filled out incorrectly, with no running count of medication, and in some cases, no policies
and procedures regarding control and distribution of medication. Id.
3
Further, plaintiff lacked satisfactory fire evacuation and emergency plans, and there was
no effective communication between plaintiff and the United States Probation Office’s staff.
AR 754. In addition, plaintiff lacked proper policies and procedures for a public information
program that offered ongoing, positive communication between the facility and the local
community, elected officials, law enforcement, and citizens. Id.
On February 20, 2015, plaintiff submitted a thirteen-page response to the BOP’s report.
Id. at 770. Plaintiff indicated that it had cleaned the facility’s floors and food storage areas, but
disagreed with and challenged other findings in the report, asserting that some were not
violations of its contract with defendant, and demanding that at least one of the outlined
deficiencies be withdrawn. Id. at 770-82. The BOP provided plaintiff with its reply on March
6, 2015. Id. at 786. The BOP noted that plaintiff had resolved the sanitation issue, but disputed
many of plaintiff’s other contentions. Id. at 787-91. On March 13, 2015, plaintiff filed a
grievance regarding defendant’s January 2015 monitoring report, and the BOP responded on
May 1, 2015, sustaining all of the contracting officer’s original conclusions that were adverse to
plaintiff. Id. at 833-35.
With respect to the solicitation, the BOP made twelve minor amendments thereto, 3 id. at
229-74, and on March 30, 2015, awarded Dismas the contract to provide RRC Services for
northern West Virginia. Id. at 275. This was not the first time that defendant entered into a
contract with defendant-intervenor for RRC Services. The two parties had previously signed a
contract for RRC Services in 2008, which had been modified on several occasions thereafter.
Id. at 874-903.
On March 31, 2015, plaintiff submitted to the BOP a claim protesting the contract award
to defendant-intervenor and alleging that the BOP had engaged in “intentional, bad faith
conduct” and “breaches of contract.” Id. at 836. Plaintiff also filed the aforementioned GAO
protest on April 6, 2015, arguing that:
(1) the BOP improperly accepted Dismas’s untimely submitted proof of all zoning
and local ordinance requirements necessary for the operation of Residential Reentry
Center at its facility locations, in violation of the terms of the RFP; (2) the BOP
improperly delayed the award of the contract in order to improperly allow Dismas
additional time to provide the approved to use; (3) the proof of zoning provided by
Dismas was in violation of City ordinances, and; (4) the BOP improperly used its
monitoring authority of Bannum’s performance to downgrade Bannum’s Past
Performance evaluation.
Id. at 531. Because plaintiff filed a protest with the GAO, on April 10, 2015, the BOP issued a
Stop-Work Order requiring that “[a]ll [RRC] services, subcontracting, and all actions pertaining
to [the northern West Virginia] contract [be] suspended.” Id. at 277. The Stop-Work Order set
forth that “[a]ll performance must be stopped from the effective date of the stay of
3
Defendant made such amendments on: June 6 and 29, 2012; July 31, 2012; August 15,
2012; September 12, 2012; February 7, 2013; August 5, 2014; December 29, 2014; January 14
and 21, 2015; and February 19, 2015.
4
performance.” Id. On that same date, the BOP sent defendant-intervenor a letter informing it
that plaintiff’s GAO protest had been filed, and stating that “[a]s a result, performance under
Contract No. DJB200232, awarded to Dismas Charities, Inc. on March 30, 2015, must be
stayed, pending disposition of the protest, or until otherwise authorized under [BOP]
procedures.” Id. at 278. The letter continued, “[e]ffective April 10, [2015], this letter and
attached modification 0001 suspends any and all performance under Contract No. DJB200232.”
Id.
Subsequently, the BOP notified plaintiff in two separate letters, both dated April 14,
2015, of two infractions at plaintiff’s Clarksburg facility. In one letter, the BOP indicated that it
had received evidence that the director of the facility had arrived at work intoxicated and had
exhibited unprofessional conduct. Id. at 827. In the other notice, the BOP stated that a
Counselor Aide had engaged in discrimination and unprofessional conduct. Id. at 832. The
BOP directed plaintiff to restrict both individuals from working with federal inmates at the
Clarksburg facility until further notice. Id. at 827, 832. Mr. Rich responded to each notice by
electronic-mail message. Id. at 828, 831. He addressed each message to Timothy Barnett, a
BOP Residential Reentry Manager, stating that defendant had not provided evidence of the
respective allegations, demanding the specifics of each infraction, “object[ing]” to the BOP’s
“course of conduct,” contending that the “letter[s] and [Mr. Barnett’s] actions [we]re
contractually unacceptable” to plaintiff, and concluding that Mr. Barnett should “GOVERN
[HIM]SELF ACCORDINGLY.” Id. at 828-29. The next day, April 15, 2015, plaintiff filed a
claim with the BOP for “contract interpretation and intentional interference with [plaintiff’s]
contract.” Id. at 859-60.
Plaintiff’s third seven-month sole-source bridge contract to provide RRC Services for the
BOP in Clarksburg expired on April 30, 2015. Id. at 737. On April 17, 2015, Thomas DiPaola,
a Sector Administrator in the Residential Reentry Management Branch at the BOP, sent an
electronic-mail message to BOP employees Peter Brustman and Clay B. Kiser, as well as others
stating that plaintiff’s third bridge contract would expire on April 30, 2015, and that Dismas
“ha[d] been awarded the new contract with a scheduled start date of August 1, 2015.” Id. at
866. He continued:
In the meantime, [plaintiff] has filed a protest and [Office of General Counsel
(“OGC”)] and contracting are working on the resolution of this issue.
After consultation with OGC and Contracting, Eastern Sector has developed a plan
for movement of the inmates upon expiration of the Bannum contract on April 30,
2015. This plan includes moving the inmates into other facilities and a plan for
continued programming at those facilities.
We are fortunate to have a few facilities within a few hours[’] travel time from
Clarksburg, WV. . . .
Please note that CBR staff will start the re-routing of the referral packets asap and
then oversee the inmate transfer process on the evening of Thursday[,] April 30,
2015.
5
Id. Mr. DiPaola’s message also indicated that in total, forty-two inmates would be relocated. Id.
Of these, twenty-three inmates would be assigned to Renewal’s Pittsburgh, Pennsylvania
facility, 4 which included eighteen inmates who would receive RRC Services at the facility and
five inmates who would be relegated to home confinement. Id. The remaining nineteen inmates
would be assigned to defendant-intervenor’s Charleston, West Virginia facility, of which eight
inmates would receive RRC Services at the facility, and eleven inmates would be relegated to
home confinement. Id. Thus, twenty-six of the forty-two inmates would be physically moved to
these other facilities, while the remaining sixteen would be assigned to home confinement. Id. at
866-70. On April 27, 2015, defendant notified plaintiff of its decision to relocate the inmates
upon expiration of the third sole-source bridge contract. See id. at 871-72.
II. PROCEDURAL HISTORY
On May 1, 2015, plaintiff filed the present bid protest and motion for a preliminary
injunction. Plaintiff contends that after filing its bid protest with the GAO, it was entitled to an
automatic stay pursuant to CICA. Plaintiff argues that because the BOP failed to provide the
requisite written notice of its decision to transfer inmates to defendant-intervenor’s and
Renewal’s respective facilities, the transfer amounted to a de facto override of the stay, thus
violating CICA. Further, plaintiff alleged in its complaint that the BOP, particularly Mr. Barnett,
demonstrated bad faith when dealing with plaintiff. Compl. ¶ 32. However, plaintiff abandoned
its bad faith claim(s) at oral argument, Oral Argument of May 15, 2015, Argument of Mr. Joseph
A. Camardo at 2:40:11. 5 Defendant filed a response and cross-motion for judgment on the
administrative record; defendant-intervenor filed a response; and plaintiff submitted its reply.
Oral argument was conducted on May 15, 2015.
III. LEGAL STANDARDS
A. Bid Protests
The United States Court of Federal Claims has “jurisdiction to render judgment on an
action by an interested party objecting to . . . the award of a contract or any alleged violation of
statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C.
§ 1491(b)(1) (2012). Interested parties are those “prospective bidders or offerors whose direct
economic interest would be affected by the award of the contract or by failure to award the
contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001).
Further, the United States Court of Appeals for the Federal Circuit has held that this court
possesses jurisdiction to review an alleged violation of a CICA stay of performance under its
bid protest jurisdiction. RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1290
(Fed. Cir. 1999).
4
The BOP and Renewal previously signed a contract for RRC Services on June 28,
2010, which allowed for the provision of such services through July 31, 2015. AR 904-905.
5
The oral argument held on May 15, 2015, at 2:30 p.m. Eastern Daylight Time was
recorded using the court’s Electronic Digital Recording (“EDR”) system. The times noted in
citations to the oral argument refer to the EDR of the oral argument.
6
When resolving a motion that arises from a bid protest, the court reviews the challenged
agency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4).
Although section 706 contains several standards, “the proper standard to be applied in bid
protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency
action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Under
this standard, the court “may set aside a procurement action if ‘(1) the procurement official’s
decision lacked a rational basis; or (2) the procurement procedure involved a violation of
regulation or procedure.’” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir.
2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001)). When a protester claims that the procuring agency’s decision violates a
statute, regulation, or procedure, it must show that the violation was “clear and prejudicial.”
Impresa, 238 F.3d at 1333 (internal quotation marks omitted). “The arbitrary and capricious
standard applicable [in bid protests] is highly deferential.” Advanced Data Concepts, 216 F.3d
1054, 1058 (Fed. Cir. 2000).
B. Preliminary Injunctive Relief
Courts “ordinarily refrain from interference with the procurement process . . . .” United
States v. John C. Grimberg Co., 702 F.2d 1362, 1372 (Fed. Cir. 1983). In bid protests, the
Tucker Act provides that
the court may award any relief that the court considers proper, including declaratory
and injunctive relief except that any monetary relief shall be limited to bid
preparation and proposal costs.
[T]he court shall give due regard to the interests of national defense and national
security and the need for expeditious resolution of the action.
28 U.S.C. § 1491(b)(2)-(3). Preliminary injunctive relief is an extraordinary and drastic remedy,
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam), and the decision to grant
injunctive relief falls within the sound discretion of the trial court, FMC Corp. v. United States, 3
F.3d 424, 427 (Fed. Cir. 1993); see also PGBA, LLC v. United States, 389 F.3d 1219, 1225-26
(Fed. Cir. 2004) (determining that the statutory scheme for reviewing procurements “does not
deprive a court of its equitable discretion in deciding whether injunctive relief is appropriate”).
As the United States Supreme Court has held, a preliminary injunction is designed
“merely to preserve the relative positions of the parties until a trial on the merits can be held.”
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The standard for determining whether to
grant a preliminary injunction in bid protests is well established. In order to secure such relief,
the moving party must demonstrate that: (1) it is likely to succeed on the merits; (2) it will be
irreparably harmed without injunctive relief; (3) the harm it will suffer outweighs the harm to the
government and to third parties; and (4) the public interest favors the grant of injunctive relief.
Am. Signature, Inc. v. United States, 598 F.3d 816, 823 (Fed. Cir. 2010) (citing Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 19 (2008)); FMC Corp., 3 F.3d at 427. “No single
factor is determinative, and the weakness of the showing regarding one factor may be overborne
by the strength of the others.” FMC Corp., 3 F.3d at 427. Nevertheless, “the absence of an
7
adequate showing with regard to any one factor may be sufficient, given the weight or lack of it
assigned the other factors, to justify . . . denial” of a preliminary injunction. Chrysler Motors
Corp. v. Auto Body Panels of Ohio, Inc., 908 F.2d 951, 953 (Fed. Cir.1990). Because injunctive
relief is relatively drastic in nature, a plaintiff must demonstrate that its right to such relief is
clear. See Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. 377, 380-81 (2003), aff’d,
365 F.3d at 1345; Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560, 566 (2000).
C. CICA
Under CICA, if a federal agency “awarding [a] contract [pursuant to a procurement]
receives notice of a protest” within ten days of the contract award or five days of a required
debriefing offered to an unsuccessful offeror, whichever is later, “the contracting officer may not
authorize performance of the contract to begin while the protest is pending[,]” or if performance
had begun prior to the protest, “the contracting officer shall immediately direct the contractor to
cease performance under the contract and to suspend any related activities that may result in
additional obligations being incurred by the United States under that contract.” 31 U.S.C.
§ 3553(d)(3) (2012); see also id. § 3553(d)(4); 48 C.F.R. § 33.104(c)(1). Pursuant to 48 C.F.R.
§ 33.104(d), if the contracting officer decides to proceed with the contract award or continue
performance, thus overriding the stay, the contracting officer must furnish the protestor and other
interested parties with written notice of that decision.
IV. DISCUSSION
As described earlier, plaintiff was the incumbent contractor providing the BOP with RRC
Services in Clarksburg, West Virginia. AR 711. On June 5, 2012, the BOP issued the RFP,
seeking RRC Services for inmates in northern West Virginia. Id. at 1. For the next three years,
plaintiff filed three protests that delayed the award of the contract. The procurement continued,
and plaintiff’s existing contract expired on July 31, 2013. Id. at 711. Consequently, in the
absence of a contract award, the BOP executed three consecutive seven-month sole-source
bridge contracts with plaintiff. Id. at 711, 715, 727, 736. Ultimately, on March 30, 2015, while
plaintiff’s third sole-source bridge contract was ongoing, defendant awarded the contract for
RRC Services in northern West Virginia to Dismas. Id. at 275. On April 6, 2015, plaintiff filed
its protest with the GAO, id. at 531, and on April 10, 2015, the BOP suspended all actions
pertaining to the newly awarded contract to Dismas, id. at 275, 277-78. Because plaintiff filed
its protest within five days of receipt of the debriefing letter, plaintiff was entitled to an
automatic stay under CICA. 48 C.F.R. § 33.104(c)(1). Plaintiff’s third seven-month sole-source
bridge contract expired on April 30, 2015. AR 736. After that date, defendant transferred the
inmates from plaintiff’s Clarksburg facility to defendant-intervenor’s facility in Charleston, West
Virginia and Renewal’s facility in Pittsburgh, Pennsylvania. Id. at 866.
In its motion, plaintiff contends that because defendant failed to provide the requisite
written notice of the transfer of inmates, the transfer amounted to a de facto override of the
automatic stay, thus violating CICA. Pl.’s Mot. 4, 7. Plaintiff alleges injury arising from the
transfer of inmates, which required Bannum to shut down its Clarksburg facility, resulting in the
loss of a significant number of employees. Id. at 4-5. Additionally, plaintiff argues that an
injunction is justified because the transfer of inmates to two other cities, each over 100 miles
8
away, interrupted the inmates’ “entire treatment plan” by severing their ties with the Clarksburg
community. Id. at 5. Given the totality of the circumstances, plaintiff asserts, the BOP should be
preliminarily enjoined from transferring the inmates to defendant-intervenor’s and Renewal’s
respective facilities. Id. at 14.
The court rejects plaintiff’s contentions. First, plaintiff cannot prevail because the BOP’s
transfer of the inmates to other RRC facilities pursuant to separate, pre-existing contracts
between the BOP and Dismas, and between the BOP and Renewal, respectively, did not
constitute a de facto override of the CICA stay. The newly awarded contract for RRC services in
northern West Virginia, which is the subject of the pending protest before the GAO, is wholly
distinct from the extension of the BOP’s pre-existing contract with Dismas and from the use of
the BOP’s pre-existing contract with Renewal to provide RRC Services at their respective
facilities in Charleston, West Virginia and Pittsburgh, Pennsylvania. Indeed, “[w]hile an
override is meant to authorize performance on the protested contract because of special
circumstances,” the extension of a pre-existing contract to provide services during the pendency
of the protest is “a separate, self-contained contract.” Access Sys., Inc. v. United States, 84 Fed.
Cl. 241, 243 (2008). For example, the BOP’s three seven-month sole-source bridge contracts
with plaintiff were merely “interim contract[s]” to perform the “exact same services” required by
the June 2012 solicitation. Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 708
(2006). These contracts were initiated to fulfill the BOP’s need for RRC Services as the
procurement process continued, and were different from the contract that was ultimately awarded
to defendant-intervenor pursuant to the solicitation. Similarly, when plaintiff’s third bridge
contract expired on April 30, 2015, the BOP’s transfer of some inmates from plaintiff’s facility
to defendant-intervenor’s facility constituted an extension of a pre-existing contract to perform
the same services required by the solicitation, in order to fulfill the BOP’s need for RRC
Services during the pendency of the GAO protest. Along the same lines, the BOP’s transfer of
the remaining inmates from plaintiff’s facility to Renewal’s facility was the use of an existing
contract to obtain the same services required by the solicitation. The BOP’s extension of its pre-
existing contract with Dismas and the BOP’s use of its pre-existing contract with Renewal is
different from the newly awarded contract award that plaintiff is protesting before the GAO.
Plaintiff contends that “some amount of th[at newly awarded] contract work (i.e. inmate
referrals) [is] being given to” Dismas under the extension of its pre-existing contract with the
BOP, and that the court in Access Systems held that that is a “functional equivalent of an
override.” Pl.’s Reply 3. Contrary to plaintiff’s assertion, in Access Systems, the court
specifically held that if the other “contract is for the identical . . . services involved in the original
contract, this fact alone is insufficient to prove that the [other] contract is an iteration, in whole
or in part, of the original contract and, thus, an override.” 84 Fed. Cl. at 243. Indeed, the court
reasoned that “[c]ontracts may share the same subject matter and yet remain separate and distinct
from one another,” and that the other “contract is not a partial iteration of the original contract
but is a new contract with a distinct character and function.” Id. Thus, even as the subject matter
of the two contracts here is the same—i.e. providing RRC Services to the same group of
inmates—the contracts are distinct, and therefore, extending the BOP’s pre-existing contract
with Dismas did not override the stay of the newly awarded contract pursuant to the solicitation.
Second, the court is similarly unpersuaded by plaintiff’s argument that there was no
reason for the transfer of inmates because, as the incumbent contractor, it had a “fully compliant
9
facility.” Pl.’s Mot. 8. Pursuant to 18 U.S.C. § 3621(b), Congress conferred on the BOP the
authority and discretion to “designate the place of [a federal] prisoner’s imprisonment.” The
BOP “may designate any available penal or correctional facility that meets minimum standards
of health and habitability established by the [BOP], whether maintained by the Federal
Government or otherwise . . . that the [BOP] determines to be appropriate and suitable,
considering . . . the resources of the facility contemplated[,]” among other factors. 18 U.S.C.
§ 3621(b). Moreover, the BOP “may at any time, having regard for the same matters, direct the
transfer of a prisoner from one penal or correctional facility to another.” Id. Here, plaintiff
provides no evidence for its contention that its facility was fully compliant. It appears that the
predicate for plaintiff’s argument is its sense of entitlement to a fourth bridge contract. There is
no legal support for plaintiff’s view. The law is well settled that the court will not consider
arguments made without proper substantiation. Gilda Indus. Inc. v. United States, 446 F.3d
1271, 1281 (Fed. Cir. 2006) (stating that attorney argument is not considered evidence).
Third, there is no dispute that the BOP retained the authority conferred upon the agency
by Congress to make the decision regarding where to assign inmates. The court notes that the
BOP’s inspection of plaintiff’s Clarksburg facility revealed concerns regarding sanitary
conditions, inmates’ physical safety, and satisfactory provision of food and medicine. The BOP
was also aware of unprofessional conduct demonstrated by two of plaintiff’s staff members, one
who engaged in discriminatory behavior, and the other, the director of the facility, who arrived at
work intoxicated. It is clear that the BOP exercised the discretion granted to it by Congress
when declining to offer plaintiff a fourth bridge contract, and instead chose to exercise its rights
under separate, pre-existing RRC Services contracts with defendant-intervenor and Renewal,
respectively. See Def.’s App’x 4-6. Moreover, defendant merely extended its pre-existing
contract with Dismas and used its pre-existing contract with Renewal to meet the ongoing need
for RRC Services until the current GAO protest is resolved.
Finally, plaintiff objects to defendant-intervenor receiving a transfer of inmates pursuant
to its separate, pre-existing contract with the BOP, arguing that the inmates should have been
temporarily transferred to plaintiff’s Wheeling, West Virginia facility, instead. 6 Pl.’s Reply 3.
6
In its “Reply Memorandum and Opposition to Defendant’s Cross-Motion for Judgment
on the Administrative Record,” plaintiff argues for the first time that defendant’s decision not to
transfer the inmates to plaintiff’s Wheeling facility lacked a rational basis. Pl.’s Reply 5. At oral
argument, plaintiff explained that it raised this argument for the first time in the reply brief
because it was unaware of which inmates were “being assigned” to which facilities, and overall,
“what was happening,” and that it only learned this information after defendant filed Mr.
DiPaola’s affidavit outlining this information. Oral Argument of May 15, 2015, Argument of
Mr. Joseph A. Camardo at 2:48:16. In response, defendant argued that plaintiff was aware that
inmates were being transferred to Charleston, West Virginia well before defendant filed Mr.
DiPaola’s affidavit, as plaintiff referenced this location by name in its motion and specifically
noted that inmates were being reassigned there. Oral Argument of May 15, 2015, Argument of
Mr. Devin A. Wolak at 3:12:25. Further, defendant contended, plaintiff would have known well
before the affidavit was filed that no inmates were not being transferred to its Wheeling facility
because, as it is its own facility, it would be aware of any inmates being transferred there. Id. at
3:12:36. Thus, defendant argued, plaintiff had no justification for raising the argument for the
10
Plaintiff provides no evidence or case law to support its argument that an agency must choose the
incumbent contractor when contemplating an interim contract or the extension of a pre-existing
contract. Further, the presumption of agency regularity renders an explanation unnecessary
“unless that presumption has been rebutted by record evidence suggesting that the agency
decision is arbitrary and capricious.” Impresa, 238 F.3d at 1338. Plaintiff abandoned any claim
related to bad faith at oral argument, see supra Section II, and thus, those arguments are deemed
withdrawn.
In sum, because the separate, pre-existing contract between the BOP and Dismas, as well
as the separate, existing contract between the BOP and Renewal, are distinct from the contract
awarded pursuant to the June 2012 solicitation, the court finds that the transfer of inmates to
defendant-intervenor’s facility in Charleston, West Virginia and Renewal’s facility in Pittsburgh,
Pennsylvania was not a de facto override of the automatic CICA stay. See Access Sys., 84 Fed.
Cl. at 243 (finding that because the other contract was different from the contract subject to the
protest, it was “not an override of the automatic stay” required by CICA). The absence of an
override leads inextricably to the conclusion that the automatic stay pursuant to CICA was not
violated. Accordingly, the court need not engage in a merits evaluation concerning whether a de
facto override of the stay was defensible.
V. CONCLUSION
The BOP’s use of a pre-existing RRC Services contract with Dismas and its use of an
existing contract with Renewal to transfer inmates is separate and distinct from its March 30,
first time in its reply brief. Id. at 3:14:30. Plaintiff then responded that when it argued that the
BOP should have considered plaintiff’s Wheeling facility as an option when transferring
inmates, plaintiff was not raising a new protest ground. Oral Argument of May 15, 2015,
Argument of Mr. Joseph A. Camardo at 3:24:50. Rather, plaintiff explained, it was merely
providing a reason as to why defendant did not satisfy the four factors set forth in Reilly’s that
determine if an agency’s override decision should be upheld as valid. Id. at 3:24:50-3:25:48; see
Reilly’s, 73 Fed. Cl. at 711. Because the court has determined that no de facto override
occurred, it need not reach the Reilly’s analysis that plaintiff references, and consequently, it
need not consider plaintiff’s argument that the BOP should have transferred inmates to the
Wheeling facility. Moreover, even if plaintiff had attempted to raise the argument as a new
ground to challenge the agency’s action, it would be waived because it was first introduced in the
reply brief. United States v. Ford Motor Co., 463 F.3d 1267, 1277 (Fed. Cir. 2006) (explaining
that “[a]rguments raised for the first time in a reply brief are not properly before this court” and
that “[i]t is unfair to consider an argument to which the government has been given no
opportunity to respond”); Norman v. United States, 429 F.3d 1081, 1091 n.5 (Fed. Cir. 2005)
(adhering to the rule that arguments raised for the first time in a reply brief are not properly
before the court); Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002) (stating
that raising an issue “for the first time in a reply brief does not suffice; reply briefs reply to
arguments made in the response brief—they do not provide the moving party with a new
opportunity to present yet another issue for the court’s consideration”); Carahsoft Tech. Corp. v.
United States, 86 Fed. Cl. 325, 338 n.11 (2009) (holding that arguments presented for the first
time in a reply brief should be disregarded by the court).
11
2015 contract award to Dismas arising from the June 2012 solicitation. Because the court finds
that the transfer of inmates did not constitute a de facto override of the automatic stay required
by CICA, plaintiff has not met its burden to establish its entitlement to a preliminary injunction.
Accordingly, the court GRANTS defendant’s cross-motion for judgment on the administrative
record, and DENIES plaintiff’s motion for a preliminary injunction. No costs. The clerk is
directed to enter judgment accordingly.
The court has filed this ruling under seal. The parties shall confer to determine proposed
redactions, and by no later than Friday, June 12, 2015, file a joint status report indicating their
proposed redactions. A copy of those pages of the court’s ruling containing proposed
redactions shall be attached, with the proposed redactions clearly indicated, to the parties’
status report.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
12
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} |
614 S.E.2d 448 (2005)
Joanne MUNOZ, Employee, Plaintiff,
v.
CALDWELL MEMORIAL HOSPITAL, Employer, and
Allied Claims Administration, Carrier, Defendants.
No. COA04-1292.
Court of Appeals of North Carolina.
July 5, 2005.
Charles G. Monnett, III & Associates, by Craig O. Asbill, Charlotte, for plaintiff-appellee.
Jones, Hewson & Woolard, by Lawrence J. Goldman, Charlotte, for defendants-appellants.
*449 TIMMONS-GOODSON, Judge.
Caldwell Memorial Hospital ("Caldwell") and Allied Claims Administration ("Allied") (collectively, "defendants") appeal an opinion and award of the North Carolina Industrial Commission awarding Joanne Munoz ("plaintiff") compensation for injuries resulting from an automobile collision. For the reasons discussed herein, we affirm the opinion and award.
The facts and procedural history pertinent to the instant appeal are as follows: On 5 January 2001, plaintiff began work for Caldwell as a home health care nurse. Plaintiff's position with Caldwell required her to travel each day to an assigned patient's residence to provide care for the patient. Plaintiff provided *450 care for only one patient per day, and her hourly wages began when she reached the patient's home. As part of plaintiff's compensation, Caldwell paid plaintiff excess travel mileage if her patient's residence was more than sixty miles round trip from her own residence.
On 8 January 2001, plaintiff was assigned to care for a patient in Lenoir, North Carolina. While on her way to the patient's residence, plaintiff decided to drop off her time slips at Caldwell's office, which was also located in Lenoir. As plaintiff drove to Caldwell's office, she was involved in an automobile collision and suffered injuries to her head and back. Caldwell denied plaintiff's subsequent worker's compensation claim, contending that the collision did not arise out of and in the course of plaintiff's employment at Caldwell.
On 6 November 2002, the case was heard by North Carolina Industrial Commission Deputy Commissioner Edward Garner, Jr. ("the Deputy Commissioner"). On 10 March 2003, the Deputy Commissioner entered an opinion and award concluding that plaintiff's injuries arose out of and in the course of her employment at Caldwell. Based upon this conclusion, the Deputy Commissioner awarded plaintiff $271.46 per week in compensation.
Defendants appealed the Deputy Commissioner's award to a full panel of the North Carolina Industrial Commission ("the Full Commission"). On 28 June 2004, the Full Commission entered an opinion and award affirming the Deputy Commissioner's prior award. The Full Commission made the following pertinent conclusions of law:
5. In this case, the "traveling salesman" exception applies because plaintiff was injured while en route to visit a patient pursuant to a job with no fixed hours or place of work. Plaintiff's job required that she report directly from her home to the patient's home for which she would be caring each day rather than beginning her day at her employer's fixed place of business. Plaintiff's job required that she visit with only one patient per day, but during the four days that plaintiff had been employed, she had visited three different patients at three different residences, and worked varying hours each day.... [U]nder these circumstances, the "traveling salesman" exception would apply to each day upon leaving her house to travel to her patient's home because plaintiff did not have a fixed work place or fixed work hours.
6. Plaintiff's employment was of a nature that failed to establish a fixed work place or fixed work hours, and plaintiff's mere intention to drop her pay slips off while traveling the route to her patient's home that would take her by her employer's place of business on January 8, 2001, did not constitute a "distinct" and "total" departure on a personal errand. Accordingly, the traumatic brain injury and other injuries resulting from plaintiff's automobile accident on January 8, 2001, are compensable as they arose out of and in the course of her employment pursuant to the "traveling salesman" exception to the "going and coming" rule.
....
8. Plaintiff's injuries sustained while traveling to work on January 8, 2001, are compensable pursuant to the "contractual duty" exception because [Caldwell] was under an active contractual duty to reimburse plaintiff for her mileage at the time of her automobile collision. Pursuant to this mileage plan, plaintiff was paid mileage for the amount of miles she was required to travel in excess of 60 miles roundtrip to a single patient's home. Thus, the "contractual duty" exception would apply to a home health care nurse visiting a single patient over the course of a day at the time that nurse traveled beyond a 30-mile radius of her listed home address.
9. Plaintiff's mere intent to drop her pay slip off, as required, while traveling the route to her patient's home that would take her by her employer's place of business does not constitute a "distinct" or "total" departure on a personal errand.
Based upon these conclusions of law, the Full Commission awarded plaintiff $271.46 per week in compensation. Defendants appeal.
*451 The issues on appeal are whether the Full Commission erred by: (I) concluding that plaintiff's injury arose out of and in the course of her employment; and (II) determining plaintiff's average weekly wage.
Defendants first argue that the Full Commission erred by concluding that plaintiff's injuries arose out of and in the course of her employment. Defendants assert that because the collision giving rise to plaintiff's injuries occurred while plaintiff was driving her personal vehicle to work, plaintiff's injuries are not compensable. We disagree.
This Court's review of a decision of the Full Commission is limited to determining whether competent evidence supports the Full Commission's findings of fact, and whether the Full Commission's findings of fact support its conclusions of law. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). "Whether an injury arises out of and in the course of a claimant's employment is a mixed question of fact and law[.]" Creel v. Town of Dover, 126 N.C.App. 547, 552, 486 S.E.2d 478, 481 (1997).
The "going and coming rule" states that "injuries sustained by an employee while going to or from work are not ordinarily compensable" because the injuries do not arise out of or in the course of employment. Bass v. Mecklenburg County, 258 N.C. 226, 231-32, 128 S.E.2d 570, 574 (1962) (citations omitted); Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C.App. 266, 269, 569 S.E.2d 675, 678, disc. review denied, 356 N.C. 436, 572 S.E.2d 784 (2002). The rationale for this rule is that "the risk of injury while traveling to and from work is one common to the public at large," Creel, 126 N.C.App. at 555, 486 S.E.2d at 482, and "[a]n employee is not engaged in the business of the employer while driving his or her personal vehicle to the place of work or while leaving the place of employment to go home." Hunt, 153 N.C.App. at 269, 569 S.E.2d at 678. Nevertheless, the going and coming rule is subject to exceptions. Such exceptions have been recognized where:
(1) an employee is going to or coming from work but is on the employer's premises when the accident occurs (premises exception); (2) the employee is acting in the course of his employment and in the performance of some duty, errand, or mission thereto (special errands exception); (3) an employee has no definite time and place of employment, requiring her to make a journey to perform a service on behalf of the employer (traveling salesman exception); or (4) an employer contractually provides transportation or allowances to cover the cost of transportation (contractual duty exception).
Stanley v. Burns Int'l Sec. Servs., 161 N.C.App. 722, 725, 589 S.E.2d 176, 178 (2003) (citations omitted).
In the instant case, the Full Commission determined that both the traveling salesman exception and the contractual duty exception apply. Defendants contend that the traveling salesman exception does not apply because on the date of the collision, plaintiff had a fixed job location at the residence of her patient. In support of this contention, defendants cite this Court's refusal to apply the traveling salesman exception to the facts in Hunt. However, we conclude that Hunt is distinguishable from the instant case.
In Hunt, we noted that "[i]f travel is contemplated as part of the employment, an injury from an accident during travel is compensable." 153 N.C.App. at 269, 569 S.E.2d at 678. Thus, under the traveling salesman exception, "employees with no definite time and place of employment ... are within the course of their employment when making a journey to perform a service on behalf of their employer." Creel, 126 N.C.App. at 556-57, 486 S.E.2d at 483 (citations omitted). "The applicability of the `traveling salesman' rule to the facts [of a case] depends upon the determination of whether [the] plaintiff had fixed job hours and a fixed job location." Hunt, 153 N.C.App. at 270, 569 S.E.2d at 678.
Like the plaintiff in the instant case, the plaintiff in Hunt was a nursing aide whose work required her to travel to a patient's residence rather than report to her employer's premises. However, unlike the plaintiff in the instant case, the plaintiff in Hunt had worked for her employer for "over two *452 years" and had worked "solely" with the same patient at the same address. Id. at 270, 569 S.E.2d at 678-79. Based upon these facts, this Court determined in Hunt that the plaintiff's "employment did not require attending to several patients, at different locations with no fixed work location." Id. at 270, 569 S.E.2d at 679.
In the instant case, plaintiff had only been employed at Caldwell for four days at the time of the collision, and she had been assigned to three different patients at different locations on each date of her employment. Although the parties stipulated that "plaintiff ... would visit only one patient per day[,]" the parties also stipulated that "[s]ome of [Caldwell's] home health care nurses were limited to a single patient and some would see multiple patients[.]" The parties further stipulated that plaintiff's wages would "begin upon reaching a patient's residence." Thus, unlike in Hunt, plaintiff was not assigned "solely" to the patient she was en route to assist on the date of her injury. Instead, the record supports the Full Commission's determination that plaintiff's employment with Caldwell involved multiple patients, and that plaintiff had "no fixed hours or place of work." Therefore, we conclude that the Full Commission did not err by determining that the traveling salesman exception applies to the instant case.
Defendants also contend that the Full Commission erred by determining that the contractual duty exception applies to the instant case. In Hunt, this Court stated that "where an employer provides transportation or allowances to cover the cost of transportation, injuries occurring while going to or returning from work are compensable" under the contractual duty exception. Id.
For a claim to fall within this exception, the transportation must be provided as a matter of right as a result of the employment contract. If the transportation is provided permissively, gratuitously, or as an accommodation, the employee is not within the course of employment while in transit. Where the cost of transporting employees to and from work is made an incident to the contract of employment, compensation benefits have been allowed.
Id. (citations omitted).
In the instant case, plaintiff's employment with Caldwell included a mileage compensation plan "for approved patient care, education, and business miles." The plan provided that "[f]or those having only one patient [per day], mileage will be paid if greater than 60 miles roundtrip from their listed home address." In Hunt, we rejected the plaintiff's claim that her accident was covered under a similar compensation policy, noting that "[t]he parties stipulated that [the] plaintiff was not compensated for her travel because she did not travel over" the relevant amount of mileage necessary for compensation under the policy. Id. at 271, 569 S.E.2d at 679. However, in the instant case, the parties stipulated that "[t]he distance between the residence of [] plaintiff ... and the residence of the patient she was visiting on January 8, 2001, was in excess of 60 miles round trip[,]" and the parties also stipulated that plaintiff "would be reimbursed as per [the mileage compensation plan] for mileage to a patient's residence in Lenoir." The Full Commission noted these stipulations prior to determining that the contractual duty exception applies to the instant case. We conclude that the Full Commission did not err in its determination.
Defendants maintain that neither the traveling salesman nor the contractual duty exceptions should apply to plaintiff's claim because at the time of the collision, plaintiff was driving to Caldwell's office rather than her patient's residence. We disagree.
This Court has noted that the traveling salesman exception does not apply where the evidence demonstrates a distinct departure by the employee on a personal errand. Dunn v. Marconi Communications, Inc., 161 N.C.App. 606, 612, 589 S.E.2d 150, 155 (2003). Similarly, we have also noted that "the `contractual duty' exception can be negated if the Commission finds that the employee, while using an employer-provided vehicle, abandoned his employment-related purpose for using the vehicle." Id. However, our courts have further recognized that *453 workers' compensation rules are subject to "liberal construction," and therefore, "`[w]here any reasonable relationship to employment exists, or employment is a contributory cause, the court is justified in upholding the award as "arising out of employment."'" Kiger v. Service Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704 (1963) (quoting Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960)).
In the instant case, defendants contend that plaintiff's route the date of the collision was not the most direct to her patient's residence, and that at the time of the collision, plaintiff had "doubled back" to drop off her time slips. However, we note that in Creel, this Court agreed that "`[a]n identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be regarded as insubstantial.'" 126 N.C.App. at 557, 486 S.E.2d at 483 (quoting 1 Arthur Larson & Lex K. Larson, Larson's Workmen's Compensation Law § 19.00, at 4-352 (1996)). Moreover, in Smith v. Central Transport, 51 N.C.App. 316, 321, 276 S.E.2d 751, 754 (1981), we held that an employee's injury from an automobile collision arose out of and in the course of his employment, and was not incurred during a distinct departure, even though the collision occurred "approximately four and a half hours after [the employee] had delivered his load of chemicals, and while he was ... heading in a direction which would have been opposite to the most direct route back" to his employer's business. In the instant case, we conclude that even if plaintiff deviated from the most direct route of her travel in order to drop off her time slips, this deviation does not rise to the level of a distinct departure. Plaintiff stipulated that "[s]he was on her way to see a patient" when the collision occurred, but because "[s]he had extra time ... she decided to drop off [her] time slips at" Caldwell's office. Plaintiff also stipulated that she was required to drop her time slips off at Caldwell's office by 5:00 p.m. on Mondays, including Monday, 8 January 2001, the date of the collision. Although we note that plaintiff would not be reimbursed for the mileage she incurred in driving to drop off her time slips, we also note that Caldwell's office was located in the same town as plaintiff's patient's residence. In light of the foregoing, we conclude that the Full Commission correctly determined that plaintiff's "mere intention to drop her pay slips off while traveling the route to her patient's home" did not prevent application of the traveling salesman and contractual duty exceptions. Accordingly, we overrule defendants' first argument.
Defendants' final argument is that the trial court erred by determining plaintiff's average weekly wage. N.C. Gen.Stat. 97-2(5) (2003) governs the determination of an injured worker's average weekly wage, and it provides in pertinent part as follows:
Average Weekly Wages."Average weekly wages" shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury.... Where the employment prior to the injury extended over a period of fewer than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained. Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.
But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.
*454 In the instant case, prior to the hearing, the parties stipulated in pertinent part as follows:
3. With respect to average weekly wage, during the year 2000, [Caldwell's] PRN (as needed) LPNs worked:
a. If each week is averaged, the total average hours per week is 23.94.
b. With a weighted average (weeks with 10 LPNs working would receive twice the weight as weeks with 5 LPNs working), the average hours per week is 22.76.
Based in part upon this stipulation, the Full Commission concluded in pertinent part as follows:
11. In this case, plaintiff's average weekly wage is best determined by employing another method as set forth in N.C. Gen.Stat. § 97-2(5) because plaintiff's employment prior to her injury extended over a period of less than 52 weeks. Accordingly, plaintiff's average weekly wage shall be that of a similar situated employee who has been employed by [Caldwell] for more than one year. Since the parties stipulated that other LPNs worked an average of 23.94 hours per week, at $17.00 per hour for 23.94 hours per week, plaintiff's average weekly wages are $406.98, which yields a compensation rate of $271.46 per week.
Defendants contend that the Full Commission should have used the weighted average hours detailed in the stipulation rather than the straight average. However, notwithstanding their assertion that the weighted average "more accurately reflects expected hours of a PRN LPN," defendants cite no authority in support of their argument and fail to demonstrate why the weighted average is preferred. As discussed above, our review on appeal of an opinion and award of the Full Commission is limited to determining whether competent evidence supports the Full Commission's findings of fact, and whether those findings of fact support the Full Commission's conclusions of law. Adams, 349 N.C. at 681, 509 S.E.2d at 414. In the instant case, the Full Commission's conclusion of law indicates that it based its decision to use the straight average upon the stipulation agreed to by both parties. Thus, in light of the foregoing, we conclude that the Full Commission did not err in its determination regarding plaintiff's average weekly wage. Therefore, we overrule defendants' final argument, and accordingly, we affirm the Full Commission's opinion and award.
Affirmed.
Judges McCULLOUGH and STEELMAN concur.
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990 F.2d 1265
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.UNITED STATES of America, Plaintiff-Appellee,v.Sergio Arturo VILLA-GONZALEZ, Defendant-Appellant.
No. 90-10368.
United States Court of Appeals, Ninth Circuit.
Submitted March 23, 1993.*Decided April 6, 1993.
Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.
1
MEMORANDUM**
2
Sergio Arturo Villa-Gonzalez appeals his conviction for possession with intent to distribute approximately 100 kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II). Villa-Gonzalez claims, first, that Barry Baker-Sipe, his trial counsel, rendered ineffective assistance and, second, that the government engaged in outrageous conduct. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
3
We have been "chary of analyzing insufficiency of counsel claims on direct appeal." United States v. Rewald, 889 F.2d 836, 859 (9th Cir.1989), cert. denied, 498 U.S. 819 (1990) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (citations omitted), cert. denied, 470 U.S. 1058 (1985); accord United States v. Robinson, 967 F.2d 287, 290 (1992). "Challenge by way of a habeas corpus proceeding is preferable as it permits the defendant to develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted." United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988). Claims of ineffective assistance may be reviewed on direct appeal only in the rare case "when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel." Robinson, 967 F.2d at 291 (citations omitted). Accordingly, we leave this claim to be addressed in a collateral proceeding. See Robinson, 967 F.2d at 291.
4
Villa-Gonzalez contends that his conviction should be reversed because the government's arranging to conduct a large-scale narcotics transaction in a busy shopping mall during business hours was "outrageous." We review proceedings a defendant failed to challenge below for plain error. United States v. Endicott, 803 F.2d 506, 513 (9th Cir.1986). Although we have recognized that law enforcement conduct becomes constitutionally unacceptable under the Due Process Clause when it "shocks the conscience" of the court, Cooper v. Dupnik, 963 F.2d 1220, 1237 (9th Cir.1991), we have barred prosecution for outrageous conduct only once. See Greene v. United States, 454 F.2d 783 (9th Cir.1972). In that case, we concluded that government agents had manufactured the crime by contacting suspected bootleggers, supplying them with equipment and sugar at wholesale price, and purchasing their product. Villa-Gonzalez urges us to expand the doctrine of "outrageous conduct" and reverse convictions not only when government action impinges a defendant's constitutional rights, but also when it poses a possible threat to innocent bystanders. We decline. Accordingly, we discern no plain error in the district court's failure sua sponte to dismiss this prosecution. See Endicott, 803 F.2d at 513.
5
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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364 F.2d 393
CBN CORPORATION (Formerly Columbian Carbon Company)v.The UNITED STATES.
No. 263-62.
United States Court of Claims.
July 15, 1966.
Robert J. Casey, New York City, attorney of record, for plaintiff. Clark, Carr & Ellis; Thomas J. McCoy, Jr., Thomas E. Tyre, John A. Craig, New York City, and Harry J. Gerrity, Washington, D. C., of counsel.
Mitchell Samuelson, Washington, D. C., with whom was Asst. Atty. Gen. Mitchell Rogovin, for defendant. C. Moxley Featherston, Lyle M. Turner and Philip R. Miller, Washington, D. C., of counsel.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, and COLLINS, Judges.
DURFEE, Judge.
1
This is an action to recover an alleged overpayment of income taxes and interest for the years 1955 and 1956 in the amount of $274,562.75. The parties by joint stipulation have agreed that four of the six separate counts included in the petition, namely counts 2, 3, 4 and 6, are to be dismissed with prejudice. These cross-motions for summary judgment pertain to the remaining counts — counts 1 and 5.
2
The issue before the court is whether plaintiff had a sufficient economic interest in natural gas in place to entitle it to participate in the depletion allowance for income tax purposes. This court in CBN Corporation v. United States, 328 F.2d 316, 164 Ct.Cl. 540 (1964) held that plaintiff, who before 1952 was a buyer of gas from Shamrock Oil Corporation, acquired an economic interest in the gas in place as a result of a 1952 agreement with Shamrock. The 1952 agreement relieved plaintiff of the obligation of buying gas from certain reserves of Shamrock (which gas plaintiff used either to produce carbon black or to sell to others) and instead, gave plaintiff a payment for the gas from the set-aside reserves sold by Shamrock to others. As a result of holding an economic interest, plaintiff was entitled to take the depletion allowance in computing its 1953 taxes. The facts in this case are the same as in the prior CBN case, supra. Only different tax years are involved.1
3
Plaintiff, therefore, maintains that the doctrine of collateral estoppel precludes defendant from opposing its summary judgment motion on grounds already litigated in the prior opinion. Practically speaking, plaintiff's argument is that, since the facts and legal arguments of the prior CBN case and this case are identical, the court must render judgment for plaintiff.
4
Plaintiff's doctrinaire approach is based on the Supreme Court's approach to collateral estoppel as set forth in Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948). There the Court stated at 597-598, 68 S.Ct. at 719:
5
* * * where the second action between the same parties is upon a different cause or demand, the principle of res judicata is applied much more narrowly. In this situation, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but "only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered." * * * But matters which were actually litigated and determined in the first proceeding cannot later be relitigated. Once a party has fought out a matter in litigation with the other party, he cannot later renew that duel. In this sense, res judicata is usually and more accurately referred to as estoppel by judgment, or collateral estoppel. * * It is the above quoted language which plaintiff uses as the foundation of its argument. The Supreme Court in Sunnen, supra, however, went on to further refine the rules for applying collateral estoppel. The Court stated at p. 599, 68 S.Ct. at p. 720:
6
But collateral estoppel is a doctrine capable of being applied so as to avoid an undue disparity in the impact of income tax liability. A taxpayer may secure a judicial determination of a particular tax matter, a matter which may recur without substantial variation for some years thereafter. But a subsequent modification of the significant facts or a change or development in the controlling legal principles may make that determination obsolete or erroneous, at least for future purposes. If such a determination is then perpetuated each succeeding year as to the taxpayer involved in the original litigation, he is accorded a tax treatment different from that given to other taxpayers in the same class. As a result, there are inequalities in the administration of the revenue laws, discriminatory distinctions in tax liability, and a fertile basis for litigious confusion. * * * [collateral estoppel] is not meant to create vested rights in decisions that have become obsolete or erroneous with time, thereby causing inequities among taxpayers. [Emphasis added.]
7
at 600, 68 S.Ct. at 720:
8
* * * As demonstrated by Blair v. Commissioner, 300 U.S. 5, 9, 57 S.Ct. 330, 331, 81 L.Ed. 465, a judicial declaration intervening between the two proceedings may so change the legal atmosphere as to render the rule of collateral estoppel inapplicable. * * [Emphasis added.]
9
In regard to the aforementioned change or development in controlling legal principles or change in the legal atmosphere it has been stated that these standards do not mean that the earlier decision must have been overruled or that the second ruling be inconsistent with the first. The above italicized language means rather that the "second court should be freed from the prior determination if there has been some marked advance or alteration in relevant orientation, approach, reasoning, or principles." Hercules Powder Co. v. United States, 337 F.2d 643, 648, 167 Ct.Cl. 639, 649 (1964) (dissenting opinion). That such a marked alteration in approach to the problem at hand exists is evidenced by the recent decision of this court in Tidewater Oil Company v. United States, 339 F.2d 633, 168 Ct.Cl. 457 (1964). We held in Tidewater that transferors of oil "allowables"2 in the East Texas Oil Field, who received royalties on each barrel of oil produced under the transferred allowables, did not have the requisite interest in the oil in place to enable them to qualify for depletion allowances. A comparison of the reasoning and approach used in the first CBN case and the Tidewater case lucidly underscores the change of course in our approach to depletion matters.
10
A bothersome point in the prior CBN case was the lack of a fee or leasehold interest by plaintiff in the oil-producing properties. Placing reliance on Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), this Court stated at 328 F.2d 322, 164 Ct.Cl. 550: "It is not necessary that the holder of an economic interest have title to the property." However, in the later Tidewater case, this blanket rule was somewhat refined as follows:
11
* * * At the outset it should be noted that aside from Southwest Exploration no Supreme Court decision has found a taxpayer possessing the requisite interest in the mineral in place who did not have either a fee or a leasehold interest in the oil-producing property itself. This apparent departure from prior doctrine can best be explained on the grounds that the granting of discovery depletion in that case served the purposes for which the allowance was created. That is, the upland owners in that case contributed real property which was essential to the discovery, drilling, and extraction of the oil. * * * [339 F.2d at 638, 168 Ct.Cl. at 466 — Emphasis in original.]
12
Thus, the holding of non-necessity of title or leasehold interest of Southwest, regarded as a blanket exception or break from precedent by the Court in CBN, was re-interpreted in Tidewater to be a variable; that is, the requirement of fee or leasehold may be disregarded in certain instances where its application would thwart the purposes for which depletion allowances were created. The necessity of title or leasehold rule was recognized to be an elastic one, — one that could be stretched in certain instances, as in Southwest, rather than one to be strictly adhered to or, conversely completely disregarded. That this is the correct interpretation is evidenced by the very limited holding by the Supreme Court itself in Southwest at 350 U.S., 317, 76 S.Ct. 400:
13
* * * We decide only that where, in the circumstances of this case, a party essential to the drilling for and extraction of oil has made an indispensable contribution of the use of real property adjacent to the oil deposits in return for a share in the net profits from the production of oil, that party has an economic interest * * * [Emphasis added.]
14
See also Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 637-638, 85 S.Ct. 1207, 14 L.Ed.2d 116 (1965).
15
The above quoted limited holding of Southwest refers to an indispensable contribution by the party seeking the depletion allowance. Footnote 5 of the prior CBN case refers to Southwest in the following manner, 328 F.2d at p. 323, 164 Ct.Cl. at p. 552:
16
* * * The Court does mention in Southwest that the site furnished was essential to the drilling contract, but this was only one of the elements mentioned by the Supreme Court. We have seen no case that holds that a party must be essential to a drilling contract in order to have an economic interest. * * *
17
Compare, however, the approach used by the court in Tidewater when the court, in analyzing the facts, concluded that the transferors of allowables had not made an indispensable contribution to the use of the property:
18
* * * Their [the transferors] contribution was personal property rather than real property; it was at best indispensable for the extraction of only part of the oil; it was not instrumental in the acquisition of the lease, nor was it essential to the drilling operations. * * * [339 F.2d at 639, 168 Ct.Cl. at 467 — Emphasis added.]
19
This court in attempting to determine the meaning of the Supreme Court's language of "indispensable contribution" decided in Tidewater, upon further thought and consideration, that such language meant that a major factor in determining economic interest of one seeking depletion was the determination of whether or not that party was essential to the drilling operation (or extraction of minerals).3 This court's understanding of Southwest, in the Tidewater case, was thereafter confirmed by the Supreme Court in Paragon Jewel Coal Co. v. Commissioner, supra, 380 U.S. at 637-638, 85 S.Ct. 1207. Such reasoning represents a material alteration in approach to the overall depletion question from our reasoning in the prior CBN case.
20
Since, as we have shown, our approach to this type of case has changed considerably, we are free to consider anew the issue in this case on its merits. Immediately prior to 1952, Shamrock Oil and Gas Corporation was engaged in the production of natural gas from lands owned or leased by that company in Moore County, Texas. Under various agreements CBN and Shamrock had entered into a certain arrangement for the sale of gas to CBN. Under the agreements, Shamrock was responsible for bringing the natural gas to the surface. Shamrock then removed liquid hydrocarbons from the gas. After such removal, about 95 percent of the original or raw gas remained. (The remainder is sometimes referred to as residue gas). CBN, which operated a carbon black plant in the area, then had a right and obligation to purchase a certain amount of such residue gas from Shamrock. The amount that CBN had a right to purchase was a fractional part of the residue gas, which was referred to as "dedicated reserves." From these dedicated reserves there was to be available to CBN a minimum of 30 million cubic feet of gas per day. CBN was obligated to purchase the aforesaid minimum amount, and had first option to purchase other gas available from the reserves. CBN was also given the right to cease burning the gas at any time, in which event it could resell to other purchasers. In the latter event, different terms of paying Shamrock for the gas were provided. It is evident that under these arrangements CBN held no economic interest in the gas.4 The test for economic interest is set out in Commissioner v. Southwest Exploration Co., supra, 350 U.S. at p. 314, 76 S.Ct. at p. 398:
21
* * * a taxpayer is entitled to depletion where he has: (1) "acquired, by investment, any interest in the oil in place," and (2) secured by legal relationship "income derived from the extraction of the oil, to which he must look for a return of his capital." * *
22
Plaintiff did not qualify under part (1) of the above test since it held only an economic advantage, not an economic interest in the oil in place. Plaintiff was merely a purchaser of the gas.
23
Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897 (1938) authoritatively held that a mere purchaser is not entitled to depletion. In that case the taxpayer purchased the gas before removal of the hydrocarbons. Plaintiff in this case is further removed from the gas in place since its purchases were not made until after the hydrocarbons were removed.
24
We must now determine whether or not the 1952 contract between plaintiff and Shamrock so altered their relationship as to change plaintiff's interest from one of economic advantage to economic interest in the gas in place. Upon analysis of the contract, we think it does not.
25
By 1952 both parties desired to have a different arrangement of their agreement. Plaintiff wished to shut down its carbon black plant and to resell all of the gas bought from Shamrock. Shamrock, in turn, wished to sell the gas to another company at higher profits. Both parties then decided that it would be advantageous to arrange for the resale of all of the gas (including that volume that plaintiff was obligated to purchase) by Shamrock in its own name. That this was the parties' intent is shown by the 4th, 5th and 6th paragraphs of the preamble to the 1952 contract which read in part as follows:
26
WHEREAS [CBN] has notified Shamrock of its intention to shut down its carbon plant * * * and * * * desires to effect a resale of the volumes of gas it is authorized to resell under the terms and provisions of the aforesaid contracts; [the pre-1952 agreements] and
27
WHEREAS * * * the conditions under which such volumes would be delivered and received would require an agreement or arrangement between Shamrock and the purchaser * * *; * * * the parties hereto having considered such matters, have concluded that it would be more economical and convenient to arrange for the resale of the aforesaid volumes to be made by Shamrock in its own name and on its responsibility as between the seller and purchaser of such gas and that an accounting between the parties hereto with respect to such resale volumes be made on a basis mutually satisfactory in lieu of the accounting between the parties required under the terms of the aforesaid contracts * * *; and
28
WHEREAS Shamrock is willing to release [CBN] from its obligation to purchase volumes of residue gas it is now obligated to purchase * * * and is willing to undertake to accomplish a resale of the volumes of residue gas which [CBN] is authorized to resell * * * in lieu of making delivery thereof to [CBN], and is willing to make certain payments to [CBN] with respect to the volumes of residue gas remaining from gas produced from its sour gas reserves to the extent of the volumes which [CBN] would * * * be authorized to sell to others * * *.
29
The resulting agreement therefore merely transferred from plaintiff to Shamrock the right to sell for plaintiff part of the residue gas which plaintiff was required to purchase under the old contract (which volume plaintiff could resell under the old contract). Plaintiff's remuneration was to be a share of Shamrock's new higher, selling price. The transaction thus remained basically one of sale. Instead of CBN selling to others, Shamrock sold to others as CBN's agent. There was no change in status as between the parties. The respective interests of the parties to the contract were merely rearranged. Such a rearrangement surely could not transfer CBN's economic advantage to one of economic interest. CBN still lacked a property interest. The new contract did not give CBN a leasehold or fee in the land.5 As we previously stated, the leasehold or fee rule may be disregarded in those instances where a rigid application would subvert Congressional intent. But we perceive no Congressional intent to allow a mere purchaser of oil, such as CBN, to gain an economic interest in oil in place.
30
Further, plaintiff's participation was not essential to the extraction of the gas. Shamrock could bring up and process the gas at will, without plaintiff's leave. As was stated in the dissenting opinion in the prior CBN case [328 F.2d, at 327, 164 Ct.Cl., at 558]:
31
* * * Taxpayer's concern did not begin with the raw gas as it came from the well. Nor did that concern even commence with the manufacture of residue gas. Just as in the pre-1953 period, taxpayer's concern only began with the sale by Shamrock of the residue gas. Prior to that stage, plaintiff had no connection with the mineral. Under the express provisions of the 1952 agreement, Shamrock could use the gas, without accounting to plaintiff in any way, for specified ends of its own — including use for fuel for compression purposes, for processing and production purposes, and for manufacturing steam. Not until the moment of sale did any obligation to plaintiff arise or plaintiff have any concern with the gas.9 * * *
32
The element of essentiality has been thoroughly discussed in the first portion of this opinion. A further discussion of that principle is unnecessary. It suffices to say that no element of essentiality was present in plaintiff's relationship to the extraction of the gas. We hold that plaintiff does not possess the requisite interest in the gas in place to allow it to qualify for depletion allowance under the criteria established in Southwest Exploration, supra, or as later reinterpreted by this court in Tidewater, supra. The Tidewater approach and reasoning changed the legal climate in this area to such a degree as to dictate the present result. The rigidity of collateral estoppel cannot apply in this instance.
33
Plaintiff's motion for summary judgment is denied, while defendant's cross-motion for summary judgment is granted. The petition is dismissed, according to the stipulation of the parties and this opinion.
Notes:
1
The priorCBN case allowed recovery under §§ 23 and 114 of the 1939 Internal Revenue Code. 26 U.S.C. §§ 23 and 114 (1952 ed.). Since the tax years 1955 and 1956 are involved in the present litigation, we must look to the depletion laws contained in the 1954 Internal Revenue Code. Those sections (§§ 611 and 613) are substantially the same as their 1939 Code predecessors. Sections 611 and 613 of the 1954 Code, 26 U.S.C. §§ 611 and 613 (1964 ed.) read in relevant part as follows:
§ 611. Allowance of deduction for depletion.
(a) General rule.
In the case of mines, oil and gas wells, * * * there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, * * * such reasonable allowance in all cases to be made under regulations prescribed by the Secretary or his delegate. * * *
§ 613. Percentage depletion.
(a) General rule.
In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer's taxable income from the property * * *.
(b) Percentage depletion rates.
The mines, wells, and other natural deposits, and the percentages, referred to in subsection (a) are as follows:
(1) 27½ percent — oil and gas wells.
* * * * *
2
The Texas law limits the production from each oil well by assigning a monthly maximum production "allowable" to each well. If any well is shut down because of an excessive amount of salt water, the owner of that well may assign his oil "allowable" to another operator, who may then produce this additional amount of oil under his own oil lease
3
See a later decision of this court, Food Machinery and Chemical Corp. v. United States, 348 F.2d 921, 172 Ct.Cl. ___ (1965) where we held that certain contributions of taxpayer (namely the construction of 4 electric furnaces worth $20,000,000.00) wereessential to the mining of shale. The requisite of essentiality to the drilling or extraction operation seems now to be well established.
Plaintiff has relied on Food Machinery mainly for the proposition that the requirement of fee or leasehold is no longer important in deciding depletion cases. However, as we have pointed out, the leasehold or fee rule is not a rigid one, and may be disregarded in instances when its application would subvert Congressional intent. Food Machinery was just such a situation. Plaintiff's economic interest in Food Machinery was so strong that the absence of a leasehold or fee interest could not divest plaintiff of depletion rights. In fact, we stated in Food Machinery that the facts in that case on the question of economic interest were stronger than in Southwest. The holding in Food Machinery was therefore no more than an adherence to the principles set out in Southwest.
4
Both the majority and dissenting opinions in the priorCBN case were in agreement with the fact that CBN Corporation had no economic interest in the oil in place prior to 1952.
5
There was a conflict of opinion in the prior case as to whether the 1952 agreement contained a covenant running with the land. Such an encumbrance is usually specified with particularity. Such was the case in the pre-1952 agreement(s). The 1952 agreement, however, contained an ordinary clause relating to assignment. Such a material change in form indicates a material change in agreement between the parties, i. e., the 1952 agreement was not meant to contain a covenant running with the land
9
The contract provided:
"4. There shall be no restriction nor limitation on Shamrock's right to remove liquid or liquefiable hydrocarbons or hydrogen sulphide from the gas produced from said reserves and there shall be no obligation, express or implied, on Shamrock's part to make payments to Columbian [plaintiff] on the proportionate part of said residue gas above specified, except as, if and when such residue gas is sold or used by Shamrock for purposes other than specified in subparagraphs (a), (b), (c) and (d) of Section 3 above; provided that if Shamrock should cease to process through its plant or plants the gas produced from its sour gas reserves, or any part thereof, and shall make sale thereof at the well or wells where produced, then such payments shall be applicable to the proportionate part of the raw gas volumes that may be sold by Shamrock." [328 F.2d p. 327, 164 Ct.Cl. p. 558 — footnote 9]
LARAMORE, Judge (dissenting):
34
I respectfully dissent. Tidewater Oil Company v. United States, relied upon by the majority as showing a change in the legal climate, arose under a different contract and involved different facts. The facts in this case are in all respects identical to the facts in the prior CBN Corporation case and only encompass different tax years. I think the decision in Tidewater has not effected a sufficient change in the legal climate to warrant our departure from the doctrine of collateral estoppel. I would, therefore, permit recovery by plaintiff.
35
COWEN, Chief Judge, joins in the foregoing dissent.
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No. 04-02-00193-CR
Danny OCHOA,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-1671
Honorable Sam Katz, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice
Delivered and Filed: June 19, 2002
DISMISSED FOR LACK OF JURISDICTION
Danny Ochoa seeks to appeal his felony conviction based on a plea of guilty. The punishment
assessed did not exceed the punishment recommended by the prosecutor and agreed to by Ochoa.
To invoke the court's jurisdiction over this appeal, rule 25.2(b)(3) requires that the notice of appeal
specify that the appeal is from a jurisdictional defect, specify that the substance of the appeal was
raised by written motion and ruled on before trial, or state that the trial court granted permission to
appeal. Tex. R. App. P. 25.2(b)(3). Because Ochoa's notice of appeal does not meet any of the
requirements of rule 25.2(b)(3), our jurisdiction has not been properly invoked, and the appeal is
dismissed for lack of jurisdiction. See White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001).
PER CURIAM
DO NOT PUBLISH
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756 So.2d 239 (2000)
Danny R. LOONEY, Appellant,
v.
STATE of Florida, Appellee.
No. 98-04226.
District Court of Appeal of Florida, Second District.
April 26, 2000.
John E. Fernandez, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.
DAVIS, Judge.
Danny Looney appeals his manslaughter conviction. He argues that the trial court erred by deviating from the standard jury instruction on manslaughter and by instructing the jury on the definition of culpable negligence. We agree and also find error in the State's charging document. Accordingly, we reverse.
Subsection 782.07(1), Florida Statutes (1995), defines manslaughter as, "The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder...." In Taylor v. *240 State, 444 So.2d 931 (Fla.1983), the Florida Supreme Court distinguished manslaughter by act or procurement from manslaughter by culpable negligence. The former two require an intent to cause death, while the latter does not. See id. at 934. The Taylor court noted that this difference is rooted in the common law distinction between voluntary manslaughter and involuntary manslaughter. See id. at 934.
It is well-settled that a conviction on a charge not made by the State's charging document is a denial of due process of law. See Velasquez v. State, 654 So.2d 1227, 1228 (Fla. 2d DCA 1995). In this case, the State filed an information charging Looney with the death of Marlene Grenier. Specifically, the information alleged that Looney "did unlawfully, by his intentional act, kill Marlene Grenier, a human being, by striking her and causing her to receive wounds or injuries which resulted in her death...." Although this language seemingly charges manslaughter by act, it does not necessarily exclude a charge of manslaughter by culpable negligence. At best, the charging document was ambiguous. Similarly, the verdict form does not delineate whether the jury found Looney guilty of manslaughter by act or by culpable negligence. Because the information does not allege the essential element of intent to cause death for manslaughter by act, and thus we cannot determine whether the jury convicted Looney of a charge not made in the information, we must reverse Looney's conviction.
Turning to Looney's contention that the trial court erred in its instructions to the jury, we note that Looney disputed the issue of intent at trial. At the conclusion of the trial, the trial court instructed the jury as follows: "Before you can find the defendant guilty of manslaughter, the state has to prove the following two elements beyond a reasonable doubt: One, is that Marlene Grenier is dead. Two, the death was caused by the act of Danny R. Looney." The trial court went on to give the standard jury instruction defining culpable negligence.
We hold that the trial court erred in modifying the standard jury instructions, which clearly delineate between the types of manslaughter, and in giving the definition of culpable negligence. These instructions, like the information, do not identify clearly whether Looney is charged with manslaughter by act or by culpable negligence. In fact, the instructions as given essentially suggest that Looney is strictly liable for the death of Grenier. This error was of such a nature that we cannot say it did not mislead the jury in their deliberations. Although Looney did not offer a contemporaneous objection to the instructions, we conclude that the error was fundamental and denied Looney a fair trial. See State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (fundamental error for trial court to omit instruction on disputed material element of crime). Accordingly, we reverse and remand for a new trial.
THREADGILL, A.C.J., and FULMER, J., Concur.
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218 F.3d 884 (8th Cir. 2000)
Willie Graves; Billy Hale; Reginald Early; David Lewis, Appellants,v.Larry Norris, Director, Arkansas Department of Correction; et al., Appellees
No. 99-3626
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: April 7, 2000Filed: July 17, 2000
Appeal from the United States District Court for the Eastern District of ArkansasBefore LOKEN, FAGG, and HANSEN, Circuit Judges.
PER CURIAM.
1
Four Arkansas inmates appeal the district court's dismissal without prejudice of their 42 U.S.C. 1983 action filed against various prison officials challenging various conditions of their confinement. The district court1 dismissed the suit under 42 U.S.C. 1997e(a) for failure to exhaust available prison administrative remedies. In their pro se brief on appeal, plaintiffs admit "that they made a mistake in prematurely filing their lawsuit," but argue that the district court abused its discretion in dismissing the suit without prejudice because their prison grievances were in process when the suit was filed, and some grievances were administratively denied before the district court ruled.
2
Section 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under [ 1983] by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." When multiple prison condition claims have been joined, as in this case, the plain language of 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims. Here, it is apparent that at least some of the plaintiffs' many claims were not fully exhausted at the time the district court dismissed the action without prejudice.
3
Defendants filed a motion requesting an initial hearing en banc to consider whether our decision in Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999) -- that it is improper to dismiss without prejudice when available prison administrative remedies are exhausted "at the time the [district] court ruled" -- is contrary to the plain language of 1997e(a) ("no action shall be brought"), as construed by a number of our sister circuits. See, e.g., Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 534- 35 (7th Cir. 1999); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 U.S. 833 (1998); cf. Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999). We need not address that issue because it is clear from the record that at least some of plaintiffs' claims were unexhausted when the district court ruled.
4
The court has denied defendants' motion for initial hearing en banc. We deny plaintiffs' responsive motion for appointment of counsel and an extension of time to reply. The judgment of the district court is affirmed.
Notes:
1
The HONORABLE GEORGE HOWARD, JR., United States District Judge for the Eastern District of Arkansas.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TYRONE SMAW, )
)
Appellant, )
)
v. ) Case No. 2D18-3580
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed November 27, 2019.
Appeal from the Circuit Court for
Hillsborough County; Michelle Sisco,
Judge.
Tyrone Smaw, pro se.
Ashley Moody, Attorney General,
Tallahassee, and Blain A. Goff, Assistant
Attorney General, Tampa, for Appellee.
PER CURIAM.
Affirmed.
LaROSE, LUCAS, and ATKINSON, JJ., Concur.
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742 F.Supp.2d 1350 (2010)
James FRANCOIS, Plaintiff,
v.
MIAMI-DADE COUNTY, Port of Miami, Defendant.
Case No. 10-20244-CIV.
United States District Court, S.D. Florida.
September 30, 2010.
*1351 Joseph Robert Gosz, The Gosz Professional Limited Company, Miami, FL, Kertch J. Conze, Law Offices of Kertch Conze, P.A., Miramar, FL, for Plaintiff.
William X. Candela, Dade County Attorney's Office, Miami, FL, for Defendant.
ORDER GRANTING SUMMARY JUDGMENT
PATRICIA A. SEITZ, District Judge.
THIS MATTER is before the Court on Defendant's Motion for Summary Judgment [DE-18]. Plaintiff's two count complaint alleges (1) a violation of Title VII based on national origin discrimination and (2) a violation of the Florida Civil Rights Act based on national origin discrimination. Defendant moves for summary judgment because Plaintiff's claims fall outside the scope of his Equal Employment Opportunity Commission (EEOC) charge, which did not include any mention of national origin discrimination. Because Plaintiff's claims are outside the scope of his EEOC charge, Defendant's Motion for Summary Judgment is granted.
I. Undisputed Facts and Procedural History
Plaintiff was employed by the Miami-Dade County Seaport Department from July 30, 2007 until July 17, 2008, as a Seaport Enforcement Specialist. A month before his termination, on June 18, 2008, Plaintiff, with the assistance of counsel, filled out a EEOC Intake Questionnaire. (DE-27-1.) Question 4 of the Questionnaire asked "What is the reason (basis) for your claim of employment discrimination?" In response, Plaintiff checked the boxes for "National Origin" and "Retaliation." Question 5 of the Questionnaire asked "What happened to you that was discriminatory?" In response, Plaintiff wrote: "sexual harassment and subsequent persecution due to reporting same to supervisors." Attached to the Questionnaire were two letters, Plaintiff's counsel wrote, one to the Manager of the Port of Miami and one to the Mayor of Miami-Dade County. The letter to the Port Manager made no mention of Plaintiff's national origin charge; instead, it stated that one of Plaintiff's *1352 supervisors had made sexual advances and other sexual propositions to Plaintiff. (DE-27-1 at 9-10.) The letter to the Mayor referred to the harassment described in the letter to the Port Manager. The letter concluded by asking the Mayor to "look into these allegations and other allegations of discrimination against employees of Haitian descent at the Port of Miami." However, the letter does not say that Plaintiff is of Haitian descent.
On June 18, 2008, after filling out the Questionnaire, Plaintiff filed a Charge of Discrimination with the EEOC. Plaintiff asserts that the charge was filled out by an EEOC employee. However, Plaintiff signed the EEOC charge under the statement that "I declare under penalty of perjury that the above is true and correct." The EEOC charge makes no mention of Plaintiff's national origin. (DE-19-1.) In the box where Plaintiff is to set out the basis for the discrimination he checked "sex" and "retaliation." In describing the particulars of the alleged discrimination in the EEOC charge, Plaintiff stated that he has "been subject to a sexually hostile work environment ... and discriminated and retaliated against because of my sex/male and for engaging in protected activity in violation of Title VII." Plaintiff amended the charge on July 29, 2008 to add that he was terminated on July 17, 2008. Plaintiff made no other amendments to the EEOC charge.
Defendant filed a letter with the EEOC in response to the EEOC charge on September 9, 2008. (DE-19-2.) Defendant's letter stated that it was "in response to the sexual harassment and retaliation charge filed by Plaintiff." On June 26, 2009, the EEOC issued its Letter of Determination. (DE-19-3.) The Letter states that Plaintiff claimed he was sexually harassed and, after he reported the advances and filed a complaint, he was harassed, intimidated, and ultimately terminated. The EEOC Letter found that there was sufficient evidence to support Plaintiff's retaliation claim based on Plaintiff's complaints of sexual harassment, but found the evidence insufficient to support a claim of sexual harassment. On January 26, 2010, Plaintiff filed his complaint. (DE-1.) Throughout the process of filing complaints at work, filing his EEOC charge, and filing suit, Plaintiff has been represented by counsel. (DE-27-1.)
II. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir.2001). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). The Court must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether "`the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505).
In opposing a motion for summary judgment, the non-moving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, *1353 and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A mere "scintilla" of evidence supporting the opposing party's position will not suffice; instead, there must be a sufficient showing that the jury could reasonably find for that party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).
III. Defendant is Entitled to Summary Judgment
Defendant moves for summary judgment based on Plaintiff's failure to raise national origin discrimination in his EEOC charge. Thus, Defendant argues that Plaintiff's complaint is beyond the scope of the EEOC charge, which is fatal to Plaintiff's national origin claim. Plaintiff does not dispute that the EEOC charge makes no mention of national origin discrimination; instead, Plaintiff asserts that he should not be punished based on the error of an EEOC employee in omitting the national origin claim from the EEOC charge. Additionally, Plaintiff argues that Defendant was put on notice of Plaintiff's national origin claims by the two letters Plaintiff sent to the Port Manager and the Mayor. Thus, the purpose of the EEOC charge was met.
Generally, a "plaintiff's judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Gregory v. Georgia Dep't of Human Resources, 355 F.3d 1277, 1280 (11th Cir.2004) (quotations and citations omitted). Thus, "[n]o action alleging a violation of Title VII may be brought unless the alleged discrimination has been made the subject of a timely-filed EEOC charge." Thomas v. Miami Dade Public Health Trust, 369 Fed.Appx. 19, 22 (11th Cir.2010) (quoting A.M. Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1332 (11th Cir.2000) (overruled on other grounds by Manders v. Lee, 338 F.3d 1304, 1328 n. 52 (11th Cir.2003))). While the scope of an EEOC charge should be liberally construed, the proper inquiry is whether the claims in a judicial complaint are like, related to, or grow out of the allegations contained in the EEOC charge. Gregory, 355 F.3d at 1280 (finding that a claim of retaliation based on race and sex discrimination is inextricably intertwined with the EEOC charge alleging race and sex discrimination, but not retaliation).
Plaintiff's national origin claims were not alleged in his EEOC charge and are thus barred. Nothing in Plaintiff's EEOC charge or his amended charge indicated that Plaintiff's claims were based on national origin. His EEOC charges alleged only sexual discrimination and harassment and retaliation based on those claims. Not only did Plaintiff not mark the "national origin" box on his EEOC charge, but also his description of the allegedly discriminatory actions makes no mention of national origin. Plaintiff's national origin claims simply are not like, related to, and do not grow out of his claims of sexual harassment and retaliation set out in his EEOC claim.[1] Consequently, Plaintiff's national origin claims were not exhausted administratively and are barred. See Thomas, 369 Fed.Appx. at 22 (upholding district court decision that judicial claim that plaintiff had not been promoted because of race and sex discrimination was barred for failure to exhaust administrative remedies when *1354 EEOC charge alleged that plaintiff had not been promoted because of retaliation only). Furthermore, it is clear from the Defendant's response to the EEOC charges and from the EEOC's Letter of Determination that the investigation involved only Plaintiff's claims of sexual discrimination and harassment and retaliation based on Plaintiff's complaints of sexual discrimination and harassment.
Plaintiff relies on Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321 (11th Cir.2001), for the proposition that a deficiency in the EEOC's performance of its duties should not adversely affect a plaintiff's right to sue. Based on this, Plaintiff argues that the EEOC employee who filled out the EEOC charge erred by excluding Plaintiff's national origin claims and Plaintiff should not be penalized for this error. However, Plaintiff reads Wilkerson far too broadly. Wilkerson addressed the question of whether a timely filed EEOC Intake Questionnaire could serve the purpose of an EEOC charge for purposes of the statute of limitations. Id. at 1317. In Wilkerson, the plaintiff filed her Intake Questionnaire within the statute of limitations period. However, the EEOC failed to timely process the Questionnaire and, thus, no timely charge was issued. Because the Questionnaire met all of the requirements of a charge, including verification by the Plaintiff, the Eleventh Circuit held that the Questionnaire constituted a timely filed EEOC charge. Id. at 1321.
In the instant case, Plaintiff seeks to have the Court expand the holding of Wilkerson well beyond the issue actually ruled on to find that information in Plaintiff's non-verified Intake Questionnaire should supplant the allegations in Plaintiff's verified EEOC charge so that Plaintiff is not penalized for the actions of the EEOC employee who omitted Plaintiff's national origin claim from the EEOC charge. The Court declines to do so. First, the language of Wilkerson does not support such a broad reading. Second, unlike in Wilkerson, where the plaintiff's judicial claims would have been entirely barred by the delay at the EEOC, here Plaintiff's claims for sexual discrimination and harassment and retaliation would not have been barred if Plaintiff had brought them in his judicial complaint. However, Plaintiff failed to raise these claims in his judicial complaint and, instead, based his complaint on claims that had not been raised with the EEOC. Thus, Plaintiffs claims are not barred because of the actions of an EEOC employee but because of Plaintiff's actionshis failure to include his national origin claim in his verified EEOC charge, his failure to amend his EEOC charge to include a national origin claim, and his failure to draft his complaint based on the claims raised in his EEOC charge, on which the EEOC made its determination.
Plaintiff also argues that the purpose of the EEOC charge, putting Defendant on notice of the charges against it, was met, even if the EEOC charge did not contain a claim of national origin discrimination because Defendant was put on notice by the letters to the Port Manager and the Mayor. However, a review of the letters indicates that the letters refer to sexual harassment, not national origin discrimination. Only in passing, does the letter to the Mayor mention "other allegations of discrimination against employees of Haitian descent at the Port of Miami." Neither letter refers to a single incident of national origin discrimination or even identifies Plaintiff as Haitian. Thus, contrary to Plaintiff's assertion, the letters did not serve the purpose of a properly prepared EEOC charge. Consequently, Defendant's Motion for Summary Judgment is granted.
*1355 Accordingly, it is hereby
ORDERED that:
1. Defendant's Motion for Summary Judgment [DE-18] is GRANTED.
2. The Court shall enter a separate judgment.
3. This case is CLOSED.
NOTES
[1] The Court also notes that Plaintiff verified his EEOC charges and knew enough to file an amended charge. However, he implicitly argues that he did not know enough to correct the mistake of the EEOC employee who omitted his national origin claims.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1730
___________________________
Michael Wofford
lllllllllllllllllllllPlaintiff - Appellant
v.
North Little Rock School District
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: December 17, 2019
Filed: December 20, 2019
[Unpublished]
____________
Before STRAS, WOLLMAN, and KOBES, Circuit Judges.
____________
PER CURIAM.
Michael Wofford, parent of J.W., appeals the district court’s1 adverse judgment
in his action seeking attorneys’ fees under the Individuals with Disabilities Education
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
Act (IDEA). Upon de novo review, we agree with the district court that Wofford was
not a prevailing party entitled to fees. See Birmingham v. Omaha Sch. Dist., 298 F.3d
731, 734 (8th Cir. 2002) (standard of review); Borengasser v. Ark. State Bd. of Educ.,
996 F.2d 196, 200 (8th Cir. 1993) (to succeed in action seeking attorneys’ fees under
IDEA, plaintiff must be prevailing party). Specifically, as the relief ordered by the
hearing officer required Wofford’s action, which he did not take before moving J.W.
out of the district and precluding implementation of the relief, Wofford cannot be
considered a prevailing party. See Drennan v. Pulaski Cty. Special Sch. Dist., 458
F.3d 755, 757 (8th Cir. 2006) (parent who succeeded on IDEA claim at administrative
level was not prevailing party, because ordered relief required parent to provide
records to school, but parent instead moved child to another district, and relief was
not implemented).
The judgment is affirmed. See 8th Cir. R. 47B.
______________________________
-2-
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270 Wis. 238 (1955)
ESTATE OF SZACZYWKA: MAKAREWICZ and others, Appellants,
vs.
McEVOY and another, Respondents.
Supreme Court of Wisconsin.
May 4, 1955.
June 1, 1955.
*239 The cause was submitted for the appellants on the brief of Julius Grotsky and Vaudreuil & Vaudreuil, all of Kenosha, and for the respondents on the brief of John P. McEvoy of Kenosha.
STEINLE, J.
The sole question involved on this appeal is: When a decedent is survived only by a first cousin and by second cousins who are children of a first cousin who predeceased the decedent, does the first cousin inherit all of the decedent's estate to the exclusion of the second cousins' right to inherit the share their parent would have taken had he survived?
Sec. 237.01, Stats., provides in part:
"When any person shall die seized of any lands, tenements, or hereditaments or any right thereto or entitled to any interest therein, in fee simple, not having lawfully devised the same, they shall descend, . . . in the manner following:
"(1) In equal shares to his children and to the lawful issue of any deceased child by right of representation; and if there be no child of the intestate living at his death his estate shall descend to all his other lineal descendants; and if all the said descendants are in the same degree of kindred to the intestate they shall share the estate equally, otherwise they shall take according to the right of representation. . . .
"(3) If the intestate leave no lawful issue nor widow nor widower nor father nor mother the estate shall descend in equal shares to the intestate's brothers and sisters and to the lineal descendents of any deceased brother or sister by right of representation.
"(4) If the intestate leave no lawful issue, widow, widower, father, mother, brother, nor sister the estate shall descend to the intestate's next of kin in equal degree, except that when *240 there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote; provided, however, . . ."
Sec. 237.07, Stats., provides that:
"Inheritance, or succession by right of representation, takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parent would have taken if living; posthumous children are considered as living at the death of their parents."
The provisions of sec. 237.01 (4), Stats., apply to the situation in the case at bar.
Under the clear and express language of sec. 237.01 (4), Stats., the estate descends to the intestate's next of kin in equal degree. The item of "succession by right of representation" as defined in sec. 237.07 and as applicable in sec. 237.01 (1) and (3) is absent in sec. 237.01 (4). By virtue of such omission it is clear that the legislature intended that only the deceased's next of kin in equal degree are to share in the estate. As was held in Estate of Reil (1949), 70 Idaho, 64, 211 Pac. (2d) 407, 19 A. L. R. (2d) 186, a statute defining the term "by right of representation" has no application to a statute which does not provide for descent by right of representation, but restricts descent to "next of kin in equal degree."
Sec. 237.03, Stats., provides:
"DEGREES OF KINDRED, HOW COMPUTED. The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors; in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance."
*241 In 2 Gary, Wisconsin Probate Law (5th. ed.), p. 117, sec. 628, the author points out that the rule of the civil law, used in computing degrees of kinship in this state, is to count up the degrees, from one of the persons related, to the common ancestor, and down to the other from the common ancestor, adding the number of degrees in both lines. Under this method (illustrated by diagram in the author's text), a cousin is one degree nearer of kin than is a cousin's child.
Had Kajeton Makarewicz, father of the appellants and brother of Josephine Maejeck, survived the intestate, Ignatz Szaczywka, it is plain that he would have shared the estate per capita with Josephine Maejeck for the reason that he was of equal degree with her in kinship to the deceased. Had neither Josephine Maejeck nor Kajeton Makarewicz survived the intestate, then appellants would have been the next of kin of equal degree and would have shared per capita. However, since the legislature has limited the descent to the next of kin of equal degree, and because appellants are not of equal degree with Josephine Maejeck, who has survived the decedent, but are in fact a degree removed, the trial court properly determined that she was entitled to the entire distribution of the estate.
By the Court.Order affirmed.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3782
___________
Barbara J. Woolery, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Internal Revenue Service; Timothy F. *
Geithner, * [UNPUBLISHED]
*
Appellees. *
___________
Submitted: May 6, 2010
Filed: May 13, 2010
___________
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Barbara Woolery appeals the district court’s1 adverse grant of summary
judgment on her employment-discrimination action. After de novo review, see
Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006), we find no error in the
district court’s order, see Anda v. Wickes Furniture Co., 517 F.3d 526, 531-32 (8th
Cir. 2008) (elements of hostile-work-environment claim); Martin v. Local 1513 &
Dist. 118 of the Int’l Ass’n of Machinists & Aerospace Workers, 859 F.2d 581, 585
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
(8th Cir. 1988) (elements of retaliation claim). Accordingly, we affirm. See 8th Cir.
R. 47B.
______________________________
-2-
2
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ACCEPTED
01-14-00659-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/4/2015 10:30:35 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00659-CR FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
In the 5/4/2015 10:30:35 PM
Court of Appeals CHRISTOPHER A. PRINE
for the Clerk
First District of Texas
at Houston
No. 1424502
In the 262nd District Court
Harris County, Texas
JASON CLIFFORD CONWAY
Appellant
V.
THE STATE OF TEXAS
Appellee
APPELLANT’S BRIEF
MAITE SAMPLE
Attorney for Jason Conway
State Bar No.: 24052072
405 Main St. Ste. 950
Houston, TX 77002
(713) 909-9685
Fax: (713) 229-9996
[email protected]
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ....................................... i
IDENTIFICATION OF THE PARTIES ........................................................... ii
INDEX OF AUTHORITIES ............................................................................. iii-iv
STATEMENT OF THE CASE ......................................................................... 1
STATEMENT OF THE FACTS ....................................................................... 2
SUMMARY OF THE ARGUMENT ................................................................ 5
APPELLANT’S FIRST POINT OF ERROR -
The trial court abused its discretion in denying Appellant’s motion for
new trial and request for hearing on the motion for new trial. ........................... 6
APPELLANT’S SECOND POINT OF ERROR –
Appellant’s plea was involuntary due to ineffective assistance of
counsel. ………………………………………………………………… .......... 14
PRAYER ........................................................................................................... 21
CERTIFICATE OF SERVICE .......................................................................... 21
CERTIFICATE OF COMPLIANCE ................................................................ 22
APPENDIX: EXHIBIT A – Trial Counsel’s Affidavit
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, oral
argument is requested because this case presents an important question about
coercive plea bargaining tactics used by trial counsel as well as the
voluntariness of Appellant’s plea.
i
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the
names of all interested parties is provided below.
Counsel for the State:
Devon Anderson - District Attorney of Harris County
Alan Curry - Assistant District Attorney on appeal
Chris Handley - Assistant District Attorney at trial
Harris County District Attorney’s Office
1201 Franklin St. Ste. 600
Houston, TX 77002
713-755-5800
Appellant or criminal defendant:
Jason Clifford Conway
Counsel for Appellant:
Kathryn Robinson Wallace- Counsel at plea
12401 S. Post Oak Rd.
Suite 226
Houston, TX 77045-2020
(713)551-8626
Maite Sample - Counsel on appeal
405 Main St. Ste. 950
Houston, TX 77002
713-909-9685
Trial Judge:
Hon. Denise Bradley
262nd District Court, Harris County, Texas
ii
INDEX OF AUTHORITIES
CASES
Bruno v. State, 916 S.W.2d 4, 8 (Tex. App.—Houston [1st Dist.] 1995, pet.
ref’d)
Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014)
Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 1999)(citing
Strickland v. Washington, 466 U.S. 668, 694 (1984))
Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999)(quoting
Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997))
Ex parte Reedy, 282 S.W.3d 492, 500-01 (Tex. Crim. App. 2009)
Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990)
Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996
pet. ref’d)
Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App. 2003)(citing
Strickland, 466 U.S. at 690)
Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010)
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)(quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001))
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985)
iii
Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002)
McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981)
Mendoza v. State, 935 S.W.2d 501, 503 (Tex. App.—Waco 1996, no pet.)
Messer v. State, 757 S.W.2d 820, 824 (Tex.App.—Houston [1st Dist.] 1988,
pet. ref’d.)
Munoz v. State, 840 S.W.2d 69, 74 (Tex. App. – Corpus Christi 1992, pet.
ref’d)
Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).
Torres v. State, 4 S.W 3d 295 (Tex. App.—Houston [1st Dist.] 1999, no pet.)
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003)
RULES
TEX. R. APP. P. 9.4(g)
TEX. R. APP. P. 21.4
TEX. R. APP. P. 21.6
TEX. R. APP. P. 21.7
TEX. R. APP. P. 38.2(a)(1)(A)
TEX. R. APP. P. 39.1
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.13(b)
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with the second-degree felony
offense of assault against a family member by impeding breathing. (CR I 7).
He originally entered a plea of not guilty and requested a jury trial with
punishment to be assessed by the jury in the event that he was found guilty.
(CR I 128). Prior to the beginning of voir dire the state abandoned the
language in the indictment alleging impeding breath and offered to abandon
the punishment enhancement paragraphs in exchange for Appellant’s plea of
guilty to a Pre-Sentence Investigation hearing (PSIH). (CR I 52).
Accordingly, Appellant changed his plea to guilty and pled without an
agreed recommendation to the court for a PSIH for the third degree felony
offense of assault family member second offender. (CR I 144). At the
conclusion of the PSIH, the court sentenced Appellant to ten (10) years
confinement in the Institutional Division of the Texas Department of
Criminal Justice (TDCJ-ID). (CR I 144). The Trial Court’s Certification of
Defendant’s Right of Appeal dated April 30, 2014 indicates that Appellant
has the right to appeal. (CR I 127). Appellant’s notice of appeal was filed
with the 262nd District Court on July 27, 2014. (CR I 147).
1
STATEMENT OF THE FACTS
Appellant was accused of choking Alicia Barrens on or about
November 16, 2013. (CR I 7). Complainant and Appellant both admit that
they had a heated argument that evening about their relationship. (RR III
17,18) (RR III 30). But while Appellant alleges that he did nothing more
than push Ms. Barrens after she called him a “Nigga Fuck Up” and spit in
his face; Ms. Barrens alleges that Appellant choked her until she lost
consciousness. Id. She visited an urgent care clinic the next day and was
examined by a doctor who found that Ms. Barrens had no change in voice,
no sore throat, no difficulty swallowing, no neck pain, no muscle aches, no
depression, no suspicious lesions, as well as a normal neck inspection,
supple, with good range of motion, no bruising or swelling on the anterior
neck. (CR I 113, 114). A second visit to the same clinic by complainant on
November 21, 2013 resulted in nearly identical findings. (CR I 115, 116).
After at least six resets Appellant’s case was set for trial in the 262nd
District Court on April 30, 2014. (CR I 16, 19, 25, 26, 27, 120). By trial day
Appellant had been subjected to months of plea bargaining and
admonishments from the trial court as well as trial counsel urging him to
plead guilty. (CR III 34,35). On trial day, trial counsel failed to object when
the state abandoned language in the indictment, thereby changing the offense
2
he was being tried for. (RR II); (CR III 16). Trial counsel also withheld
important witness information from Appellant – namely about reluctance on
the part of the doctor who examined the complainant to testify for the State.
(CR III 16, 17). She also gave Appellant incorrect advice about the
procedure in a PSIH. Id. Furthermore, on trial day trial counsel advised
Appellant that he would surely die in prison and never see his family again if
he was convicted at trial because life expectancies in prison are low and his
parents would be dead in 25 years. (CR III 28). Then, with the jury panel in
the hallway, trial counsel brought him a note signed by his parents urging
him to take the plea. Id. It was the totality of all of these circumstances that
overcame his will to fight his case. At that point in the proceedings
Appellant felt he had no other choice, so he pled guilty to assault family
member second offender and had his case reset for a PSIH. (RR II 9) (CR I
16, 17, 27, 28) (CR III 34, 35).
On July 24, 2014 the trial court held the PSIH. (RR III). Contrary to
trial counsel’s advice before his guilty plea, no cross examination of the
complainant nor any additional witness testimony or mitigating evidence
was presented. Id. At the conclusion of his PSIH the trial court sentenced
Appellant to the maximum sentence of 10 years in TDCJ-ID. (RR III 10).
3
Appellant filed his notice of appeal three days later on July 27, 2014
(CR II 14). On Thursday, August 14, 2014 the undersigned counsel was
appointed to represent Appellant on his appeal. Id. Appellant filed and
presented his motion for new trial with the trial court on September 29, 2014
(CR II 3). On October 23, 2014 this court granted Appellant’s Emergency
Motion to Abate Appeal and Remand for Hearing on Motion for New Trial
and Permission to File Out of Time Motion for New Trial (CR II 11, 12).
The sole ground in the motion for new trial was that Appellant’s plea
was involuntary due to ineffective assistance of counsel. Id. In support of
his motion, Appellant attached an unsworn declaration detailing the
interactions with trial counsel that led to his involuntary plea. (CR III 16,
17). Trial counsel filed her own affidavit in response to Appellant’s motion
and unsworn statement attached hereto as Exhibit A. (Exhibit A). The case
was set for a live evidentiary hearing on December 16, 2014. (CR II 25).
However, on that day TDCJ-ID did not bring Appellant to court so the
hearing was rescheduled for December 23, 2014. (CR III 42). But on
December 19, 2014 the trial court told Appellant and the undersigned
counsel that she no longer wished to have a live evidentiary hearing, instead
she would make her ruling based on her recollection of the case, as well as,
affidavits and statements from the parties. (RR V 6). The undersigned
4
counsel objected to this sudden change, but the trial court overruled the
objection. (RR V 7). Appellant and his mother prepared additional unsworn
statements in response to trial counsel’s affidavit. (CR III 27-31).
Additionally, Appellant wrote a letter to the trial court that was hand
delivered to the court on January 5, 2015. (CR III 34, 35). That same day,
the trial court denied Appellant’s request for a hearing and denied the
motion for new trial over objection by Appellant’s appellate counsel. (CR
III 15).
SUMMARY OF THE ARGUMENT
Appellant’s plea of guilty was made involuntarily as the result of
coercion and incorrect advice by Appellant’s trial counsel as well as
repeated coercive admonishments by the trial court. Furthermore, the trial
court abused its discretion in denying Appellant’s motion for new trial and
request for live evidentiary hearing. In his motion for new trial, Appellant
alleged that his plea was rendered involuntary due to ineffective assistance
of trial counsel. He attached an unsworn declaration explaining that trial
counsel withheld information about the availability of an important trial
witness. Additionally, trial counsel admonished Appellant about dying in
prison and never seeing his family again if he did not take the State’s plea
bargain offer. Appellant explained in his unsworn statements that the
5
totality of the circumstances leading up to his plea were such that his will to
fight was overcome. Although he desired to have a jury trial, he felt forced
to plead guilty. Appellant insists that had his trial counsel been honest with
him about the availability of the doctor who examined the complainant, had
she not given him incorrect information about how a PSIH would proceed,
and had trial counsel and the trial court not coerced him through their
repeated admonishments, he would never have pled guilty, but instead
would have insisted on going forward with his trial.
APPELLANT’S FIRST POINT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION FOR NEW TRIAL AND REQUEST FOR
HEARING ON THE MOTION FOR NEW TRIAL.
STANDARD OF REVIEW FOR DENIAL OF MOTION FOR NEW
TRIAL AND EVIDENTIARY HEARING
Appellate courts review a trial court’s denial of a motion for new trial
under an abuse of discretion standard by determining whether the trial
court’s decision was arbitrary or unreasonable. Colyer v. State, 428 S.W.3d
117, 122 (Tex. Crim. App. 2014). A trial court abuses its discretion in
denying a motion for new trial when the record could not support the view
that the trial court’s ruling was reasonable. Holden v. State, 201 S.W.3d
761, 763 (Tex. Crim. App. 2006).
6
Furthermore, when reviewing a trial court’s denial of a hearing on a
motion for new trial, an appellate court applies an abuse of discretion
standard of review. Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim.
App. 2010); Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).
The reviewing court should reverse only when the trial judge’s decision was
so clearly wrong as to lie outside the zone of reasonable disagreement. Id.
Review, however, is limited to the trial judge’s determination of whether the
defendant has raised grounds that are both undeterminable from the record
and reasonable, meaning they could entitle the defendant to relief. This is
because the trial judge’s discretion extends only to deciding whether these
two requirements are satisfied. If the trial judge finds that the defendant has
met the criteria, he has no discretion to withhold a hearing. In fact, under
such circumstances the trial judge abuses his discretion in failing to hold a
hearing. Gonzales, 304 S.W.3d at 842, citing Smith v. State, 286 S.W.3d
333, 339-40 (Tex. Crim. App. 2009).
MOTIONS FOR NEW TRIAL
Timely Filed
Texas Rule of Appellate Procedure 21.4 provides that a motion for
new trial must be filed within thirty days of the imposition of sentence.
TEX. R. APP. P. 21.4.
7
Appellant filed his notice of appeal on July 27, 2014. (CR II 14). On
Thursday, August 14, 2014 the undersigned counsel was appointed to
represent Appellant on his appeal. Id. Appellant filed his Motion for New
Trial on September 29, 2014 (CR II 3). On October 23, 2014 this court
granted Appellant’s Emergency Motion to Abate Appeal and Remand for
Hearing on Motion for New Trial and Permission to File Out of Time
Motion for New Trial (CR II 11, 12). Therefore, his motion for new trial
was timely filed.
Motion Timely Presented
Texas Rule of Appellate Procedure 21.6 states that “Defendant must
present the motion for new trial to the trial court within 10 days of filing it,
unless the trial court in its discretion permits it to be presented and heard
within 75 days from the date when the court imposes or suspends sentence in
open court.” TEX. R. APP. P. 21.6. Appellant timely presented his motion
through his attorney of record on September 29, 2014.
Live hearing versus affidavit
The right to a hearing on a motion for new trial is not absolute. Reyes,
849 S.W.2d at 815; Bruno v. State, 916 S.W.2d 4, 8 (Tex. App.—Houston
[1st Dist.] 1995, pet. ref’d). The trial court is authorized to receive evidence
“by affidavit or otherwise.” TEX. R. APP. P. 21.7. But a defendant has a
8
right to a hearing when the motion raises matters that are reasonable and
cannot be determined from the record. Wallace v. State, 106 S.W.3d 103
(Tex. Crim. App. 2003). This is to ensure a meaningful appeal by creating a
record that can be reviewed. Mendoza v. State, 935 S.W.2d 501, 503 (Tex.
App.—Waco 1996, no pet.)
If a defendant’s motion for new trial and supporting affidavit are
sufficient, a hearing on the motion is mandatory and a trial court that denies
an accused a hearing abdicates its fact-finding function and denies the
accused a meaningful appellate review. Torres v. State, 4 S.W 3d 295 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Reyes, 849 S.W.2d at 816, citing
McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985). Additionally, a
defendant need not establish a prima facie case in order to get a hearing.
Wallace, 106 S.W.3d at 107-09. The motion and affidavits “must merely
reflect that reasonable grounds exist for holding that such relief could be
granted.” Id. This is because “the purpose of the hearing is for a defendant
to develop the issues raised in the motion for new trial.” Martinez v. State,
74 S.W.3d 19, 21 (Tex. Crim. App. 2002).
ANALYSIS
In his motion for new trial, unsworn statements, and handwritten letter
to the trial court, Appellant alleged that his plea was involuntary due to
9
ineffective assistance of counsel. (CR II 8-17, 27-29, 34,35). He explained
that on the day of trial, trial counsel engaged in the following deficient
conduct:
1. Failing to object to the changes in the indictment;
2. Withholding knowledge that the doctor who examined the
complaining witness was reluctant to testify for the State;
3. Telling him that life expectancy in prison was such that he would
die before serving the minimum sentence of 25 years if found guilty at trial;
4. Telling him, in front of his parents, that his parents would be dead
in 25 years, so if he did not plead guilty he would never see them alive
outside of prison;
5. Passing Appellant a note in the holdover from his parents wherein
his parents urged him to take the plea deal after the discussion about him
dying in prison and his parents dying before he served 25 years in TDCJ-ID;
and
6. Incorrectly advising him that at the PSIH he would have the
opportunity to cross-examine the complaining witness and present
mitigation evidence regarding the underlying offense. Id.
Appellant maintains that, but for each of the aforementioned instances
of deficient conduct, he would not have pled guilty and would have insisted
10
on going to trial. Id. Furthermore, none of the aforementioned issues are
determinable from the record and each, if true, would entitle Appellant to
relief, therefore he was entitled by law to a live evidentiary hearing on his
motion for new trial. Wallace, 106 S.W.3d 103.
Trial counsel filed an affidavit responding to the grounds on
Appellant’s motion for new trial. (Exhibit A). In her affidavit, trial counsel
makes some factual assertions that are controverted by the factual assertions
in Appellant’s unsworn declaration, but she does not address all of the
allegations. Id. Trial counsel offers no explanation in her affidavit about her
failure to object to the changes in the indictment. Id. She denies having
prior knowledge that the doctor who treated the complainant was
unavailable, or telling Appellant any such thing. Id. Trial counsel never
addresses any of the claims that she coerced Appellant to plead guilty by
telling him that he and his family would be dead in 25 years. Id.
Furthermore, she denies passing him a note from his parents wherein they
urged him to accept the plea offer. Finally, she says that the discussion
about what kind of evidence and cross-examination could be presented at the
PSIH did not take place until after the plea. Id.
At one point in the motion for new trial proceedings the trial court did
grant Appellant’s request for a live evidentiary hearing. (CR III 25). The
11
trial court must have believed that the requirements for a live evidentiary
hearing were satisfied otherwise it would not have bench warranted
Appellant from TDCJ-ID and set the case for a live hearing. (CR III 42).
But on December 16, 2014 Appellant was not brought to court according to
the bench warrant issued on November 25, 2014. Id. Three days later, when
Appellant was finally delivered to court, the trial court arbitrarily decided to
deny Appellant his live evidentiary hearing. (RR V 6). Nothing about the
motion for new trial and accompanying statement changed in those days.
Had the trial court conducted a live evidentiary hearing, Appellant
would have been able to cross-examine trial counsel on matters controverted
in the affidavit and the unsworn statements submitted to the court. By
denying his motion for new trial and his request for a live evidentiary
hearing, the trial court denied Appellant a meaningful appellate review and
the opportunity to create a full record for his appeal in the event the trial
court did go on to deny the motion for new trial. In so doing, the trial court
abused its discretion. Gonzales, 304 S.W.3d at 842; Torres, 4 S.W 3d 295;
Reyes, 849 S.W.2d at 816.
Furthermore, it was an abuse of discretion to deny Appellant’s motion
for new trial altogether. The trial court stated that it had an independent
recollection of the plea and the parties therefore it could make credibility
12
determinations and make a final decision on the motion for new trial based
on affidavits alone. (CR V 6). In support of this assertion, the trial court
stated: “And actually, unlike most cases, I had the opportunity – we had a
full hearing regarding issues of guilt/ innocence. I believe Mr. Conway
testified at that hearing. So, I’m very familiar with the attorney that was
representing the Defendant as well as the proceedings we are discussing this
morning.” Id. The significance of the trial court’s statement is that there is
no evidence of such a hearing anywhere in the record. Appellant did not
testify at any such hearing because one never took place, nor did he testify at
his PSIH. (RR III). Therefore, the trial court clearly did not have an
independent recollection of the plea or the parties. Clearly, the trial court
made its decision without any actual memory or knowledge of Appellant’s
case. This type of reckless decision-making is exactly the type of arbitrary
and unreasonable action that constitutes an abuse of discretion. Holden, 201
S.W.3d at 763.
CONCLUSION
Accordingly, Appellant respectfully asks that this court rule that the
trial court’s denial of his motion for new trial and request for a hearing was
an abuse of discretion and reverse and remand to the trial court for a new
trial.
13
APPELLANT’S SECOND POINT OF ERROR
APPELLANT’S PLEA WAS INVOLUNTARY DUE TO THE
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant’s plea was involuntary because of coercion, confusion, and
unconstitutionally ineffective assistance of counsel. But for trial counsel’s
erroneous advice and pressure from the trial court, Appellant would not have
pled guilty to the felony charge of assault family member second offender,
but would have insisted on going forward with his jury trial.
STANDARD OF REVIEW FOR INEFFECTIVE ASSISTANCE
OF COUNSEL AND INVOLUNTARY PLEA
A guilty plea must be freely, knowingly, and voluntarily entered.
TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). The
voluntariness of a plea is determined by the totality of the circumstances.
Munoz v. State, 840 S.W.2d 69, 74 (Tex. App. – Corpus Christi 1992, pet.
ref’d). An Appellant has a Sixth Amendment right to the effective
assistance of counsel in guilty-plea proceedings. Ex parte Reedy, 282
S.W.3d 492, 500-01 (Tex. Crim. App. 2009). To obtain relief for ineffective
assistance of counsel under Strickland v. Washington, Appellant must show
that his counsel’s performance was unconstitutionally deficient and “that
there is a ‘reasonable probability’ - one sufficient to undermine confidence
in the result - that the outcome would have been different but for his
14
counsel’s deficient performance.” Ex parte Chandler, 182 S.W.3d 350, 353
(Tex. Crim. App. 1999)(citing Strickland v. Washington, 466 U.S. 668, 694
(1984)).
Specifically, when a person “challenges the validity of a plea entered
upon the advice of counsel, contending that his counsel was ineffective, ‘the
voluntariness of the plea depends on (1) whether counsel’s advice was
within the range of competence demanded of attorneys in criminal cases and
if not, (2) whether there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty to the charged offense and would
have insisted on going to trial.’” Ex parte Moody, 991 S.W.2d 856, 857-58
(Tex. Crim. App. 1999)(quoting Ex parte Morrow, 952 S.W.2d 530, 536
(Tex. Crim. App. 1997)); Reedy, 282 S.W.3d at 500.
A criminal defense attorney “must have a firm command of the facts
of the case” before he or she may render reasonably effective assistance of
counsel. Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
Counsel has a duty to provide advice to his client about what plea to enter,
and that advice should be informed by an adequate investigation of the facts
of the case. Reedy, 282 S.W.3d at 500. When counsel’s representation falls
below this standard, it renders any resulting plea involuntary. Id.
A claim of ineffective assistance of counsel must be determined upon
15
the particular circumstance of each individual case. Jackson v. State, 766
S.W.2d 504, 508 (Tex. Crim. App. 1985). Strategic or tactical
considerations are not considered deficient unless “the challenged conduct
was ‘so outrageous that no competent attorney would have engaged in it.’”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)(quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). But when no
reasonable trial strategy could justify trial counsel’s conduct, the counsel’s
performance falls below an objective standard of reasonableness as a matter
of law. Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App.
2003)(citing Strickland, 466 U.S. at 690).
ANALYSIS
Repeated Admonishments
In Appellant’s case, trial counsel and the trial court pressured and
coerced him into making an involuntary plea. (CR II 8-17, 27-29, 34,35). In
his unsworn declaration Appellant alleges that the repeated admonishments
by the court led him to feel pressured and coerced into a guilty plea. Id. He
recalls being brought out of the hold over on at least four occasions for
admonishments by the trial court. Id. Appellant asserted his innocence and
his desire to go to trial every time, but the repeated admonishments from the
court eventually led him to feel that he had no choice but to plead guilty. Id.
16
Had the court refrained from repeatedly admonishing Appellant, he would
have felt free to go forward with his trial. Id. Appellant explains that his
trial counsel also pressured him into pleading guilty. Id. He explains that
trial counsel insisted he plead guilty despite his repeated assertions of
innocence and his desire to go to trial. Id. Trial counsel herself admits that
Appellant always expressed an unwavering desire to go to trial. Exhibit A.
She admits that she did not believe he would ever plead guilty. Id. Trial
counsel’s observation lends credence to Appellant’s declaration that his last
minute plea was made out of duress after being coerced by all of the
admonishments he received.
Erroneous PSIH Advice
If an attorney conveys erroneous information to his or her client, and
the client enters a plea of guilty based on that misinformation, the plea is
involuntary. See Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.-Houston
[1st Dist.] 1996 pet. ref’d). Furthermore, it has been held that a conviction
cannot be sustained when a plea of guilty has been motivated by significant
misinformation conveyed by the defendant’s counsel or some other officer
of the court. McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App.
1981); Messer v. State, 757 S.W.2d 820, 824 (Tex.App.—Houston [1st Dist.]
1988, pet. ref’d.).
17
Trial counsel gave erroneous advice that led to Appellant’s
involuntary plea. She assured Appellant that he could present text messages
from the complainant during his PSIH hearing to call her credibility into
question. (CR II 8-17, 27-29, 34,35). Trial counsel also assured Appellant
that he could cross-examine the complainant during the PSIH regarding
issues determinative of guilt or innocence. Id. Both of these assurances
were critical to Appellant entering a guilty plea, but neither of these things
actually happened during Appellant’s PSIH, nor were they legally required
to have happened. Id. These instances of misinformation alone are
sufficient to satisfy the standards set out in Fimberg, McGuire, and Messer.
Fimberg v. State, 922 S.W.2d at 207; McGuire, 617 S.W.2d at 261; Messer,
757 S.W.2d at 824.
Failing to Object
Appellant further alleges that when the State abandoned the impeding
breath language in the indictment on trial day he was surprised and wanted
additional time before trial to prepare a defense. (CR II 8-17, 27-29, 34,35).
Trial counsel failed to object to the abandonment of the impeding breath
language against Appellant’s wishes. Id. Appellant insists that the change
in the indictment surprised him and trial counsel’s failure to object
prejudiced him by denying him the opportunity to conduct a full
18
investigation and develop his defense. Id. Trial counsel’s failure to object
was another factor in the totality of the circumstances that led him to feel as
if he had no choice but to plead guilty. Id.
Withholding Important Case Information
Trial counsel withheld from Appellant that the doctor who examined
the complainant would not be testifying for the State until after his plea.
(CR II 8-17, 27-29, 34,35). According to Appellant, trial counsel waited
until after his plea to tell him that the doctor was no longer cooperative with
the State. Id. Had Appellant known this information, he would never have
pled guilty. Id. Instead, he would have requested a continuance to subpoena
the doctor as a defense witness. Id. According to Appellant, trial counsel
admitted that she withheld this information because she knew he would not
have pled guilty if he had known that the doctor was not going to testify at
trial. Id. This omission alone satisfies the standards set out in Fimberg,
McGuire, and Messer. Fimberg v. State, 922 S.W.2d at 207; McGuire, 617
S.W.2d at 261; Messer, 757 S.W.2d at 824. There is no reasonable trial
strategy that could justify trial counsel’s conduct, therefore counsel’s
performance fell below an objective standard of reasonableness as a matter
of law. Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App.
2003)(citing Strickland, 466 U.S. at 690).
19
Life Expectancy Comments
Trial counsel told Appellant on his trial day that if he did not plead
guilty, he would die in prison because life expectancies are low for inmates
and his minimum punishment after trial would be 25 years TDCJ-ID. (CR
III 28). She also told him, in front of his parents, that his parents would be
dead by the time he served his sentence and that he would never see his
parents outside of prison. (CR III 27-31). Finally, trial counsel brought a
letter to Appellant from his parents urging him to plead guilty and not go to
trial. (CR II 8-17, 27-31, 34, 35). This too led to Defendant feeling coerced
and pressured to plead guilty. Id. There is no reasonable trial strategy that
could justify trial counsel’s conduct therefore counsel’s performance fell
below an objective standard of reasonableness as a matter of law. Freeman,
125 S.W.3d at 512.
CONCLUSION
The totality of trial counsel’s representation fell below the objective
standard of reasonableness demanded of reasonably competent counsel.
Strickland, 466 U.S. at 690. Such performance undermines confidence in
the voluntariness of Appellant’s guilty plea. Ex parte Chandler, 182 S.W.3d
at 353. Appellant would never have pled guilty had he not received such
20
deficient representation from trial counsel, therefore his plea was rendered
involuntary by the ineffective assistance of counsel.
PRAYER
Appellant prays that this court finds that the trial court abused its
discretion in denying his motion for new trial and request for hearing, and
that his plea of guilty was involuntary due to ineffective assistance of
counsel. Accordingly, Appellant asks that this court reverse and remand this
cause to the trial court for a new trial.
Respectfully submitted,
/s/ Maite Sample
Attorney for Jason Conway
405 Main St. Ste. 950
Houston, TX 77002
SBN 24052072
(713) 909-9685, (713) 229-9996 (fax)
[email protected]
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been delivered
to the attorney for the State at the following email address:
[email protected] on this the 4th of May 2015.
21
CERTIFICATE OF COMPLIANCE
I certify that this document contains 5,282 words (counting all parts of the
document). The body text is in 14 point font.
/s/ Maite Sample
Attorney for Jason Conway
405 Main St. Ste. 950
Houston, TX 77002
SBN 24052072
(713) 909-9685, (713) 229-9996 (fax)
[email protected]
22
EXHIBIT A
23
24
| {
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72 F.2d 913 (1934)
COMMISSIONER OF INTERNAL REVENUE
v.
HIGHWAY TRAILER CO.
No. 5143.
Circuit Court of Appeals, Seventh Circuit.
July 25, 1934.
Rehearing Denied October 30, 1934.
Frank J. Wideman, Asst. Atty. Gen., and Sewall Key and J. P. Jackson, Sp. Assts. to Atty. Gen., for petitioner.
R. M. Stroud, of Madison, Wis., for respondent.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
SPARKS, Circuit Judge.
This petition to review a decision of the Board of Tax Appeals presents the very troublesome question as to the year in which the taxpayer should be allowed to take a deduction for loss by fire under the statute which provides that deductions shall be allowed for losses sustained during the taxable year and not compensated for by insurance or otherwise. 26 USCA § 986 (a) (4).
Respondent, a Wisconsin corporation engaged in the manufacture of trailer and steel dump bodies, suffered a fire in 1921 which destroyed property to the value of $165,739 not covered by insurance. It claimed that the greater part of the loss resulted from the negligence of the Janesville Electric Company, which was under contract to supply the power needed to operate the water pumps, in cutting off the power just as the fire department was getting the fire under control. In 1921 respondent brought suit against the electric company for the entire amount of the loss not covered by insurance. In the trial court a demurrer to the complaint was sustained, which ruling was, however, reversed by the Wisconsin Supreme Court in 1922. Highway Trailer Co. v. Janesville Electric Co., 178 Wis. 340, 190 N. W. 110, 27 A. L. R. 1268. In the hearing which followed, respondent obtained a judgment for $47,703 damages in 1924. It thereupon wrote off its books the difference between the total uninsured loss and the amount of damages allowed by the court, and claimed the deduction for the difference, $118,036, in its return for the year 1924. The company, however, appealed from the judgment, and in 1925 it was reversed by the Supreme Court of Wisconsin, and the action dismissed. Highway Trailer Co. v. Janesville Electric Co., 187 Wis. 161, 204 N. W. 773. Respondent thereupon claimed a deduction of the $47,703 for the year 1925. The Commissioner disallowed both these deductions, holding that the entire deduction should have been claimed for the year 1921 when the fire occurred. On appeal to the *914 Board of Tax Appeals, the majority of the Board sustained the contention of the respondent, holding that since the amount of the loss actually suffered by the taxpayer did not become fixed until the outcome of the litigation over the loss, it was correct to allow the deduction as of the years in which the loss was finally ascertained.
There have been many cases before the courts involving this question, and it must be admitted that the decisions do not appear always to be consistent.[1] It is difficult, therefore, to deduce a rule from which to decide this case. The Board relied upon a number of cases which allowed the deduction for the later year in which the loss was finally determined. These included the three Supreme Court cases, Lucas v. American Code Co., 280 U. S. 445, 50 S. Ct. 202, 74 L. Ed. 538, 67 A. L. R. 1010, Burnet v. Huff, 288 U. S. 156, 53 S. Ct. 330, 332, 77 L. Ed. 670, and Lewellyn v. Electric Reduction Co., 275 U. S. 243, 48 S. Ct. 63, 72 L. Ed. 262. In the Lucas case the taxpayer sought a deduction for 1919 in which year a liability for a breach of contract arose, the amount of which was not settled until judgment was rendered in 1922 which it paid in 1923. The Court held that a loss occasioned by the taxpayer's breach of contract is not deductible in the year of the breach unless where within the tax year there is a definite admission of liability, negotiations for settlement are begun, and a reasonable estimate of the amount of the loss is accrued on the books. In the Huff Case it was likewise held that where one partner had to make good the defalcation of another partner, he was entitled to the deduction only in the year in which he actually paid the money, and not in the year in which he discovered the loss. The Court there said, "If there is liability on his part for the misappropriation, it does not create a certainty of loss, as the defalcation may be made good by the one who caused it, or the liability of the taxpayer may be enforced only to a limited extent or not at all. The requirement that losses be deducted in the year in which they are sustained calls for a practical test. The loss `must be actual and present.'" In the Lewellyn Case, the Court refused to allow a buyer who had paid in advance for certain goods which in fact were never delivered, to deduct for its loss in the year in which the payment was made where it continued to carry the item on its books in its bills receivable account until the outcome of litigation which indicated that it would not be able to recover from the seller or a guarantor, whereupon it sought to amend its return for the year in which the prepayment was made and sued to recover an alleged overpayment of its tax for that year.
It seems to us that none of the above cases is as nearly in point as another Supreme Court case which was not considered by the Board, and which we think controls the decision in this case. We refer to the case of United States v. S. S. White Dental Manufacturing Co., 274 U. S. 398, 47 S. Ct. 598, 600, 71 L. Ed. 1120. There the taxpayer sued to recover for overpayment of a tax for the year 1918 claiming a deduction in the amount of its investment in a subsidiary German corporation the entire property of which, valued at $130,000, was seized by the German government in that year as enemy property. The property was returned in 1920, and sold in 1922 for $6,000, which amount was returned as income by the taxpayer in that year. Subsequently a claim for $70,000 was allowed by the Mixed Claims Commission, no part of which had been paid. The taxpayer had charged off its entire investment in 1918 and claimed its deduction for that year, paying its tax under protest when the Commissioner disallowed the deduction. The Court held that the loss was so evidenced by a closed transaction as to authorize its deduction from gross income for the year in which it occurred, saying,
"* * * The statute obviously does not contemplate * * * the deduction of losses resulting from the mere fluctuation in value of property owned by the taxpayer. * * * But with equal certainty they do contemplate the deduction from gross income of *915 losses, which are fixed by identifiable events, such as the sale of property * * * or caused by its destruction or physical injury. * * *
"We need not attempt to say what constitutes a closed transaction evidencing loss in other situations. It is enough to justify the deduction here that the transaction causing the loss was completed when the seizure was made. It was none the less a deductible loss then, although later the German government bound itself to repay and an award was made by the Mixed Claims Commission which may result in a recovery."
It seems to us that the three cases relied upon by the Board, all of which were decided after the White Dental Case, do not overrule it, but merely represent quite different states of fact. Where, as in the case at bar, an actual physical loss occurs, resulting in a certain definite, fixed amount of damage, it seems better practice to allow the deduction for that entire amount of damage (not covered by insurance) in the year in which the loss actually occurs, according to the rule in the White Dental Case, rather than to defer it until subsequent events indicate whether or not a recovery is to be had from other parties for a part of the loss. We think that this does not conflict with the rule of the Huff Case, supra, that "the loss `must be actual and present,'" because the loss is actual and present as soon as the physical damage occurs, as distinct from the situation where the loss claimed arises from a liability which may or may not ever materialize.
The decision is reversed, and the cause remanded to the Board of Tax Appeals for further proceedings in harmony with this opinion.
EVANS, Circuit Judge (dissenting).
A loss "which is not compensated for by insurance or otherwise" (section 234 (a) (4), Revenue Act 1921, 42 Stat. 255) is ordinarily not allowed until its realization. In Lucas v. American Code Co., 280 U. S. 445, 50 S. Ct. 202, 203, 74 L. Ed. 538, 67 A. L. R. 1010, the court said: "Generally speaking, the income tax law is concerned only with realized losses, as with realized gains." Realization is usually evidenced by closed or completed transactions. United States v. S. S. White Dental Manufacturing Co., 274 U. S. 398, 47 S. Ct. 598, 71 L. Ed. 1120. Article 141, Treasury Regulations 62, dealing with losses says: "They (losses) must usually be evidenced by closed and completed transactions."
Applying these rules to the facts of this case, it seems to the writer that part of the loss occurred in the year in which the Wisconsin trial court awarded judgment in taxpayer's favor for damages for only a part of what it claimed. The balance occurred the next year when the Wisconsin court reversed this judgment. It was in these years that the losses were realized. Then, and not until then, were they "evidenced by closed and completed transactions." It seems to me the Board of Tax Appeals correctly held that the losses occurred, not when the fire took place, but when the jury's verdict and the Supreme Court's decision closed the issues of amount and liability.
NOTES
[1] See Douglas County Light and Water Co. v. Commissioner (C. C. A.) 43 F.(2d) 904; Central Trust Co. v. Burnet, 60 App. D. C. 4, 45 F.(2d) 922; Darling v. Commissioner (C. C. A.) 49 F.(2d) 111; Ferguson v. Commissioner (C. C. A.) 59 F.(2d) 893; First National Bank of Sharon, Pennsylvania v. Heiner (C. C. A.) 66 F.(2d) 925; Ledger Co. v. United States (Ct. Cl.) 37 F.(2d) 775; Dresser v. United States (Ct. Cl.) 55 F. (2d) 499; Consolidated Tea Co. v. Bowers (D. C.) 19 F.(2d) 382; Pike County Coal Corporation v. Commissioner, 4 B. T. A. 625; Allied Furriers Corporation v. Commissioner, 24 B. T. A. 457; Martin Veneer Co. v. Commissioner, 5 B. T. A. 207; Peterson Linotyping Co. v. Commissioner, 10 B. T. A. 542; Edward H. R. Green v. Commissioner, 19 B. T. A. 904; Lane Construction Corporation v. Commissioner, 17 B. T. A. 826.
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237 Cal.App.2d 201 (1965)
KENNETH D. FREY et al., Petitioners,
v.
SUPERIOR COURT OF KINGS COUNTY, Respondent; CAMINOL COMPANY, Real Party in Interest.
Civ. No. 555.
California Court of Appeals. Fifth Dist.
Sept. 23, 1965.
Molinari, Casalnuovo & Berger and Gary P. Vannelli for Petitioners.
No appearance for Respondent.
Rosson & Pearson and Robert R. Rosson for Real Party in Interest. *202
CONLEY, P. J.
Caminol Company sued Kenneth D. Frey, Josephine D. Frey (his wife), and Walter G. Frey (his father), on written guarantees to pay the indebtedness of Kenneth D. Frey to plaintiff, which action in the Superior Court of Kings County is numbered 17453. The continuing guarantees involved in that suit all run in favor of Caminol Company, and were allegedly executed on the following dates and by the following persons for the amounts specified:
Walter G. Frey, November 16, 1961, $10,000 (exhibit A attached to the present petition).
Walter G. Frey, Kenneth D. Frey, and Josephine D. Frey, July 12, 1962, $20,000 (exhibit B attached to the petition).
Walter G. Frey, Kenneth D. Frey, and Josephine D. Frey, June 7, 1963, $40,000 (exhibit C attached to the petition).
Kenneth D. Frey and Josephine D. Frey, October 24, 1963, $60,000 (exhibit D attached to the petition).
The prayer in the complaint asks for a judgment of $47,483.72, the balance alleged to be due from Kenneth D. Frey and covered by the continuing guarantees above mentioned.
The petition for prohibition alleges the pendency of the above-mentioned action against members of the Frey family; that Kenneth D. Frey and Josephine Frey at all times have been, and now are, husband and wife; that on or about June 4, 1965, Caminol Company propounded certain interrogatories to the parties litigant, Kenneth D. Frey and Josephine D. Frey, and also to Walter G. Frey; that on or about June 28, 1965, the petitioners filed their written answers to the interrogatories stating their refusal to reply on the ground of the marital relationship between them and the existence of the privilege provided by section 1881, subdivision 1 of the Code of Civil Procedure; that on or about July 1, 1965, Caminol Company filed a motion in the Superior Court of Kings County for an order compelling petitioners to answer the respective interrogatories; that the respondent court "notwithstanding the objections of petitioners herein based on the marital privilege, granted the motion to compel petitioners to answer the interrogatories" with the proviso that the petitioners need not answer as to a certain phrase contained in Interrogatories Nos. 2, 4, 6, 8, 10, 12 and 14, which by stipulation consisted of conclusionary language. Petitioners further allege that on or about July 21, 1965, the respondent court made orders requiring each of the petitioners to answer the interrogatories addressed to him on or before mid-August 1965, except as to the portions of the interrogatories above *203 mentioned which were stricken by agreement by the parties and to pay to the Caminol Company the sum of $50 as reasonable attorneys' fees incurred in obtaining each order. The petitioners contend that each order was in excess of the court's jurisdiction, and they ask for a writ of prohibition restraining the court "absolutely and forever from taking any other proceedings against or making any other order directing the enforcement of the order compelling petitioners to answer the interrogatories."
[1] The marital privilege is thus set forth in subdivision 1 of section 1881 of the Code of Civil Procedure: "1. A husband cannot be examined for or against his wife, without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, or for a crime committed against another person by a husband or wife while engaged in committing and connected with the commission of a crime by one against the other; or in an action for damages against another person for adultery committed by either husband or wife; or in a hearing held to determine the mental competency or condition of either husband or wife."
Although as noted in Stein v. Superior Court, 174 Cal.App.2d 21, 24 [344 P.2d 406], the marital privilege has not proven very usable, as developed by the decisions in this state, it is still a viable provision of the law and fully applicable in a proper case to testimony in court, in depositions and in required answers to interrogatories. (See also Ayres v. Wright, 103 Cal.App. 610 [284 P. 1077]; Marple v. Jackson, 184 Cal. 411 [193 P. 940]; In re DeNeef, 42 Cal.App.2d 691, 693 [109 P.2d 741].) However, the code section does not cover everything that a man and wife may be jointly or severally interested in, or make it incumbent upon either to remain silent irrespective of the factual material involved. For example, In re Strand, 123 Cal.App. 170, 172 [11 P.2d 89], holds that when a husband and wife join in bringing an action to recover damages for injuries sustained by her, such action amounts to a waiver of the marital privilege. And in Rinehart v. First Cupertino Co., 154 Cal.App.2d 842 [317 P.2d 30] and Hagen v. Silva, 139 Cal.App.2d 199 [293 P.2d 143], it is pointed out *204 that when a husband and wife ask for affirmative relief from the opposing party, there can be no claim of the marital privilege. In Sylvester v. Kirkpatrick, 79 Cal.App.2d 443, 451-452 [180 P.2d 36], it is held that if the married defendants disclaim any interest in the subject matter of the suit and thereby become nominal parties only instead of actual contending litigants, they cannot rely upon the marital privilege. And as Dean v. Superior Court, 103 Cal.App.2d 892, 893 [230 P.2d 362], clearly points out, if "It is clear that answers to none of the specific questions asked of the wife would be evidence against her husband ...," the privilege is simply not involved.
[2] Turning to the specific interrogatories asked of Kenneth D. Frey and Josephine D. Frey, it appears to this court that none of the questions requires an answer that would violate the marital privilege. The two Freys, Kenneth D. and Josephine, although husband and wife, are said to have executed several documents for himself or herself which presumably would establish individual liability as to each of them. Neither can refuse to answer questions relating to his or her own personal liability by any claim of the marital privilege.
Neither party is asked to answer concerning any action of his or her spouse.
The attorneys' fees were awarded by the court pursuant to the provisions of section 2034 of the Code of Civil Procedure; the trial court specifically found that the refusals to answer the interrogatories were made by the defendants "without substantial justification" and that expenses in the sum of $50 as to each set of interrogatories should be paid. The trial court was justified in doing so under the law and the facts.
The issuance of a peremptory writ of prohibition is denied, and the temporary stay of proceedings is set aside.
Brown (R. M.), J., and Stone, J., concurred.
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91 Cal.App.3d 567 (1979)
154 Cal. Rptr. 243
DARREN LAMONT DURHAM, a Minor, et al., Plaintiffs and Appellants,
v.
CITY OF LOS ANGELES et al., Defendants and Respondents.
Docket No. 54072.
Court of Appeals of California, Second District, Division Two.
March 9, 1979.
*570 COUNSEL
C.C. Headley for Plaintiffs and Appellants.
Burt Pines, City Attorney, John T. Neville, Assistant City Attorney, Daniel U. Smith, Deputy City Attorney, Morris & Polich, Landon Morris, John K. Morris, Robert S. Wolfe, Albert & Schmiege and Merrill K. Albert for Defendants and Respondents.
OPINION
BEACH, J.
(1) (See fn. 1.) Darren Lamont Durham and his mother Dorothy Durham sued the Southern Pacific Transportation Company and the City of Los Angeles et al. for injuries suffered when Darren was trying to hop a railroad train near his home.[1] A judgment of nonsuit was entered for the City of Los Angeles, and a judgment after jury trial was entered for defendant Southern Pacific Transportation Company and against plaintiff. Appellants appeal from the judgment of nonsuit and from the judgment for defendant Southern Pacific Transportation Company.
*571 CONTENTIONS ON APPEAL
1. Civil Code section 1714.7 is unconstitutional as a denial of equal protection of the law under the United States and California Constitutions.
2. Civil Code section 1714.7 is unconstitutional as a violation of the privileges and immunities clause of the California Constitution.
3. Civil Code section 1714.7 is unconstitutional as a special statute.
4. Conflicting jury instructions have resulted in a miscarriage of justice.
(2) (See fn. 2.) 5. The trial court erred in granting nonsuit in favor of respondent City of Los Angeles.[2]
DISCUSSION
1. Civil Code section 1714.7 is constitutional.
The jury in the case at bench was instructed regarding respondent's possible negligence. The jury was additionally instructed with a modified version of Civil Code section 1714.7 as follows: "No person who is injured while getting on, or attempting to get on, a moving locomotive or railroad car, without authority from the owner or operator of the railroad, or who, having gotten on a locomotive or railroad car while in motion without such authority, is injured while so riding or getting off, shall recover any damages from the owner or operator thereof for such injuries unless proximately caused by a wanton and reckless disregard of the probable result of such act."[3]
*572 a. The Equal Protection Clause.
Appellants contend that Civil Code section 1714.7 is unconstitutional under the equal protection clause, under the privileges and immunities clause, and as a special statute. (3a) Appellants argue under the equal protection rubric that there is no reasonable and substantial relationship between the classification in the statute and any legitimate state interest, that the statute does not treat those similarly situated alike, that the basis of classification is arbitrary and unreasonable, and the statute invidiously discriminates.
(4) Under the "traditional" standard of review for equal protection classifications, the court must merely find that the classification bears some rational relationship to a conceivable legitimate state purpose. (Cooper v. Bray, 21 Cal.3d 841, 847-848 [148 Cal. Rptr. 148, 582 P.2d 604].)[4] (5) Furthermore, "the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it. [Citations.]" (D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 17 [112 Cal. Rptr. 786, 520 P.2d 10].) We also note "All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears. [Citation.]" (Russell v. Carleson, 36 Cal. App.3d 334, 342 [111 Cal. Rptr. 497].)
(6) Respondent argues that the Legislature had a legitimate and realistically conceivable purpose in enacting Civil Code section 1714.7, namely, insuring that common carriers are not exposed to unnecessary, onerous, and unduly burdensome expenses. Respondent argues that section 1714.7 is merely an enactment of the common law rule (see, e.g., Smith v. Southern Pacific Co., 222 Cal. App.2d 728 [35 Cal. Rptr. 575]; Joslin v. Southern Pac. Co., 189 Cal. App.2d 382 [11 Cal. Rptr. 267]; Herrera v. Southern Pacific Ry. Co., 188 Cal. App.2d 441 [10 Cal. Rptr. *573 575]; and Gutierrez v. Southern Pacific Co., 174 Cal. App.2d 866 [345 P.2d 326]) and a reaction to the holding of Beard v. Atchison, Topeka & Santa Fe Ry. Co., 4 Cal. App.3d 129 [84 Cal. Rptr. 449].[5]
The concept of a statutory exception to the general liability of Civil Code section 1714 has been approved. (See English v. Marin Mun. Water Dist., 66 Cal. App.3d 725, 729-730 [136 Cal. Rptr. 224]; Lostritto v. Southern Pac. Transportation Co., 73 Cal. App.3d 737, 746-749 [140 Cal. Rptr. 905].) The purpose of section 1714.7, like that of Civil Code section 846, is reasonable, especially in light of Penal Code section 587b which makes train jumping a misdemeanor.
(3b) The question still remains, even if the Legislature has the power to exempt railroads from liability in some cases, can it distinguish between those who have authority to be on a moving car and those who do not have such authority. Appellants also argue that the statute unconstitutionally distinguishes between trespassers to a railroad locomotive and trespassers to other forms of transportation such as boats, planes, buses, cars, and so forth; an additional challenge is made to the distinction between different subclasses of railroad vehicle trespassers, that is, those who get on while the locomotive is at rest rather than while it is moving.
While in light of Rowland v. Christian, 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], this court disparaged the distinction between trespassers and invitees in Beard v. Atchison, Topeka & Santa Fe Ry. Co., supra, 4 Cal. App.3d 129, 136, subsequent cases have upheld a specific statutory limitation on liability even in light of Rowland v. Christian, supra. (English v. Marin Mun. Water Dist., supra, 66 Cal. App.3d 725, Lostritto v. Southern Pac. Transportation Co., supra, 73 Cal. App.3d 737.) Civil Code section 846, examined in English and Lostritto, supra, recognizes that negligence liability may exist where the user of the land has been expressly invited rather than merely permitted to enter the premises, but otherwise requires willful or malicious failure to guard or warn against a hazard or payment for entry by the injured user. Based on these cases, we find the distinction between those who have authority to use the railway and those who do not in Civil Code section 1714.7 to be constitutionally permissible.
*574 As for the distinction between railroad trespassers and other vehicular trespassers, there are obvious distinctions between railroads and other forms of transportation. "Dwellings flank hundreds of miles of right-of-way in California and the sight of children playing on a right-of-way is not uncommon. To hold that railways must install child-proof fences or to police the right-of-way in order to prevent children from being attracted to moving trains, would place an unreasonable if not an intolerable burden upon the possessor maintaining the condition." (Joslin v. Southern Pac. Co., supra, 189 Cal. App.2d 382, 388.) The hopping of trains has been recognized as "a part of the spice of adventure" in which a substantial proportion of boys and young men (and perhaps today young women?) participate. (Herrera, supra, 188 Cal. App.2d at p. 450.) The Legislature has in effect made a determination that the railroad should not be liable for injuries in such circumstances unless the injuries have been caused by the intentional, wanton, or reckless acts of the operator.
As for the distinction between those who get aboard a moving train and those who board a stationary train and are thereafter injured, the classification is very reasonable. As asserted by respondent, the numerous qualifications in the statute are designed to insure that the statute applies only in situations where the burden to the railroad is unduly heavy.[6] The railroad can more easily monitor trains that are at rest in order to prevent train jumping. Underinclusion, if not irrational, is not by itself unconstitutional. (Lostritto, supra, 73 Cal. App.3d at pp. 747-748.)
b. The privileges and immunities clause of the California Constitution.
(7) Appellants next contend that Civil Code section 1714.7 is unconstitutional as a violation of the privileges and immunities clause of the California Constitution (art. I, § 7, formerly art. I, § 21) in that no comparable immunity has been granted to any other private entity.
Article I, section 7, subdivision (b), provides: "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens...." The cases decided under former article I, section 21, of the California Constitution regarding privileges and immunities establish that the classifications under that section, like the equal protection clause and the prohibitions against special legislation, are valid unless the classification is unreasonable or arbitrary. (County of *575 L.A. v. Southern Cal. Tel. Co., 32 Cal.2d 378 [196 P.2d 773], app. dism., 336 U.S. 929 [93 L.Ed. 1090, 69 S.Ct. 737].) Privileges for various groups have long been upheld as long as there is a rational basis for the classifications. (Cook v. Mason, 103 Cal. App. 6, 9-10 [283 P. 891], regarding veterans' preferences.) As discussed above, we find the classifications in Civil Code section 1714.7 to be reasonable.
c. A special statute.
Article IV, section 16, of the California Constitution provides: "(a) All laws of a general nature have uniform operation. (b) A local or special statute is invalid in any case if a general statute can be made applicable." Appellants contend that section 1714.7 is unconstitutional as a special statute. (8) Article IV, section 16, like the clauses discussed above, is "substantially the equivalent of the equal protection clause of the Fourteenth Amendment, and evoke[s] substantially the same standards as those prescribed by the federal Constitution. [Citations.]" (Russell v. Carleson, supra, 36 Cal. App.3d at p. 342.) Again, we cannot find section 1714.7 to be unconstitutional.
2. The jury instructions were neither conflicting nor prejudicial.
(9) Appellants contend that the combination of instructions of comparative negligence and the modified instruction regarding Civil Code section 1714.7 were conflicting and contradictory and resulted in a miscarriage of justice. We disagree. If the jury believed appellant's story that he was throwing rocks at the train, his arm was grabbed, and he thereby fell under the train, the comparative negligence instructions were applicable. Otherwise, if the jury believed, as it apparently did, that appellant Darren Durham was attempting to hop the train when he fell, the instruction based on Civil Code section 1714.7 applied. The jury instructions were correct, complete, and not contradictory.
3. The nonsuit was properly granted in favor of respondent City of Los Angeles.
Appellants allege the City of Los Angeles "negligently maintained and controlled a crosswalk at the location of the accident in the City of Los Angeles, which crosswalk ends at the Southern Pacific Railway easement and which crosswalk has no present purpose or use and is maintained negligently and without reasonable regard to the danger to local inhabitants. That the said crosswalk negligently leads to and across the railroad track and that the danger to local inhabitants is reasonably *576 foreseeable. Said negligent and unreasonable conduct ... was among the proximate causes of the injuries and damages sustained by plaintiffs herein." The court ordered a judgment of nonsuit in favor of the City of Los Angeles. Appellants now contend that the nonsuit was improper since the jury could reasonably infer that a dangerous condition existed on city property. Appellants argue that the municipality should have given appropriate warning or erected and maintained suitable barriers since it had knowledge of the existence of the dangerous condition (the train) adjacent to its property.
"At the outset it must be remembered that a nonsuit may be granted `... "only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given."' [Citation.] Thus, `while in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court, substantially the reverse is true when the appeal is from an order of nonsuit. In the latter case the appellate court must view the evidence as though judgment had gone in favor of the appellant, and order a reversal if such a judgment can be sustained.' [Citation.]" (Meyer v. Blackman, 59 Cal.2d 668, 671-672 [31 Cal. Rptr. 36, 381 P.2d 916].)
Government Code section 835 sets forth the liability of a public entity for injury caused by a dangerous condition of its property.[7] "Dangerous condition" is defined in Government Code section 830 as "a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used."
*577 The Law Revision Commission comment to section 830 of the Government Code provides in part: "A condition is not dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons. The definition would, however, take into consideration the standard of care that would be applicable to foreseeable users of the property. Where it is reasonably foreseeable that persons to whom a lower standard of care is applicable such as children may be exposed to a substantial risk of injury from the property, the public entity should be required to take reasonable precautions to protect such persons from that risk."[8] (Italics added.)
We find the factual situation in the case at bench to be more similar to that in Avey v. County of Santa Clara, 257 Cal. App.2d 708 [65 Cal. Rptr. 181], than that in Holmes v. City of Oakland, 260 Cal. App.2d 378 [67 Cal. Rptr. 197]. In Holmes, supra, 260 Cal. App.2d at page 381, the six-year-old victim was run over by a train while a pedestrian on a city street in Oakland; the railroad tracks were actually located on the street in close proximity to a grammar school. The graveled portion of the railroad right-of-way in the case at bench where Darren was standing when either hopping the train or sucked into it, is analogous to the island in Avey, supra, 257 Cal. App.2d at page 710. (10) The city's property in the case at bench was in no way defective and could not be considered dangerous except in relation to the railroad tracks. As in Avey, supra, 257 Cal. App.2d at page 713, we find no duty on the political entity to erect some sort of barricade in order to maintain its street in a reasonably safe condition. Neither must the city provide supervision at that location.
(11) As for appellants' contention that the city did not even post a sign to deter pedestrians from passing across the crosswalk into the graveled portion while waiting for a train to pass, the lack of regulatory traffic control signals does not produce a dangerous condition. (Gov. Code, § 830.4.) (12) Furthermore, Darren's mother had told him to stay away from trains; his friend had warned him not to hop the train; he had heard the train's horn and had obviously seen the train since he was throwing rocks at it by his own admission. We cannot say that lack of *578 warning by the city was in any way a proximate cause of Darren's accident.
The judgment for Southern Pacific Transportation Company and the judgment of nonsuit for the city are affirmed.
Roth, P.J., and Fleming, J., concurred.
A petition for a rehearing was denied March 29, 1979, and appellants' petition for a hearing by the Supreme Court was denied May 30, 1979.
NOTES
[1] Darren, who was approximately seven years old at the time of the accident, testified that he was throwing rocks at the train when he "just got grabbed," tried to put his feet on the bar of the train, and fell, cutting off both his legs. Inferences from other testimony leads to the conclusion that Darren was attempting to hop the train. As an appellate court, we must accept inferences favorable to the judgment.
[2] In their reply brief, appellants raise two issues that they did not discuss in their opening brief: (1) that Civil Code section 1714.7 is unconstitutional as applied, and (2) that a comparative standard of review (between the traditional and strict scrutiny standards) should be applied. Since these are raised for the first time in appellant's closing brief, we decline to discuss them.
[3] Civil Code section 1714.7 provides as follows: "No person who is injured while getting on, or attempting to get on, a moving locomotive or railroad car, without authority from the owner or operator of the railroad, or who, having gotten on a locomotive or railroad car while in motion without such authority, is injured while so riding or getting off, shall recover any damages from the owner or operator thereof for such injuries unless proximately caused by an intentional act of such owner or operator with knowledge that serious injury is the probable result of such act, or with a wanton and reckless disregard of the probable result of such act."
[4] Appellants argue that the right to recover damages is a fundamental right under the California Constitution and that, therefore, the "`strict scrutiny'" test must be applied and the state must show a compelling state interest in order to justify the classification. However, the Supreme Court has rejected the contention that the right to sue for negligently inflicted injuries is a "`fundamental interest'" analogous to voting rights or education. (Brown v. Merlo, 8 Cal.3d 855, 862 [106 Cal. Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505]. fn. 2.)
[5] The case at bench is distinguishable from Beard, supra, in that appellant Durham had been told of the danger of hopping trains. The subsequent case of Li v. Yellow Cab Co., 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], which is a post-Beard case, adopted the rule of comparative negligence and minimizes the doctrine of assumption of the risk on which Beard relies.
[6] In the case at bench, for example, the crew of the train was often pelted with rocks when driving through this particular area. Therefore, they would at times drop to the floor, a reasonable action in face of danger, which would not allow them to look at the track in any way.
[7] Government Code section 835 reads as follows: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
"(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
"(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
[8] We may consider such comments in construing the statute. (Van Arsdale v. Hollinger, 68 Cal.2d 245, 249 [66 Cal. Rptr. 20, 437 P.2d 508].)
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833 P.2d 1341 (1992)
113 Or. App. 692
STATE of Oregon, Respondent,
v.
Wesley Dale CLARK, Appellant.
903080; CA A67351.
Court of Appeals of Oregon.
Argued and Submitted January 31, 1992.
Decided July 1, 1992.
*1342 Alan H. Biedermann, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Cynthia A. Forbes, Asst. Atty. Gen., Salem.
Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.
RICHARDSON, Presiding Judge.
Defendant pled guilty to possession of a dangerous weapon with intent to use, ORS 166.220, being a felon in possession of a firearm, ORS 166.270, and assault in the fourth degree, a misdemeanor. ORS 163.160. He appeals the upward departure sentence imposed for possession of a dangerous weapon. We remand for resentencing.
To support the departure, the court relied on the aggravating factor of "persistent involvement in similar offenses or repetitive assaults." OAR 253-08-002(1)(b)(D).[1] It based that determination on defendant's Montana convictions for kidnapping, robbery, aggravated assault and theft, all arising out of a single criminal episode in 1977. In that episode, as well as the one before the court, defendant had been intoxicated. He argues that the 1977 episode does not show "persistent involvement in similar offenses" to constitute "substantial and compelling reasons" to support the departure. OAR 253-08-002(1).
"Persistent" connotes repetition. The factor captures a pattern of criminal behavior that incorporates the offender's inclination to engage in behavior with increasingly serious consequences. State v. Kennedy, 113 Or.App. 134, 831 P.2d 712 (1992); see also State v. Guthrie, 112 Or. App. 102, 107, 828 P.2d 462 (1992). A sentencing court is given broad discretion in determining what circumstances warrant imposition of a departure sentence. State v. Kennedy, supra. Here, the persistent involvement stressed by the court was defendant's alcoholism. The court was not precluded from considering the role of alcohol in defendant's offenses; however, one episode of alcohol induced behavior is not, in and of itself, a pattern of criminal behavior for purposes of OAR 253-08-002(1)(b)(D).
In State v. Kennedy, supra, the trial court had imposed an upward departure on the basis of "persistent involvement in similar offenses" in circumstances that included the defendant's abuse of alcohol. However, the record showed that the defendant's alcohol use had led to increasingly serious crimes. Here, defendant's alcohol use had resulted in a single previous criminal episode 13 years earlier. That episode does not demonstrate repetitive criminal behavior encompassed by OAR 253-08-002(1)(b)(D).[2]
*1343 Insofar as the court relied on "just deserts," as a basis for the departure sentence, we agree with defendant that it erred. Punishing an offender appropriately is one of the guidelines' primary sentencing objectives encompassed by the presumptive sentence. Oregon Sentencing Guidelines Implementation Manual 7 (1989). Although a court might refer to the principle in explaining why a presumptive sentence would not accomplish the purposes of the guidelines, see State v. Wilson, 111 Or.App. 147, 826 P.2d 1010 (1992), appropriate punishment is not an aggravating factor.[3]
Remanded for resentencing on conviction for possession of dangerous weapon with intent to use; otherwise affirmed.
NOTES
[1] The court stated that the possession charge was an offense "the nature of [which] is one that is indeed aggravated." However, it does not appear to have imposed the departure on that basis, agreeing with defendant that that basis would be part of the offense for which he was convicted. OAR 253-08-002.
[2] In determining whether there are substantial and compelling reasons to depart, a court is not precluded from considering the circumstances of a prior criminal episode. See State v. Rodriguez, 113 Or.App. 696, 833 P.2d 1343 (decided this date).
[3] We do not address defendant's constitutional arguments that he makes for the first time on appeal.
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Order entered May 6, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00935-CR
No. 05-19-00936-CR
CHRISTIN LEE GORBY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F19-00375-T & F18-29750-T
ORDER
The reporter’s record was initially due November 25, 2019. According to
official court reporter Vearneas Faggett, she reported voir dire, the motion for new
trial hearing, and two admonishment hearings, and deputy official reporter
Yolanda Atkins reported the five-day jury trial.
On February 4, 2020, Ms. Faggett notified the Court that Ms. Atkins had not
completed her portion of the record because Ms. Faggett failed to notify her it was
due. Ms. Faggett asked for a 30-day extension for Ms. Atkins, stating she might
possibly need additional time beyond that. We granted an extension until March 4,
2020. See TEX. R. APP. P.35.3(c).
On March 3, Ms. Atkins requested an additional seven days in which to file
the reporter’s record. We granted the request and ordered the reporter’s record due
on March 16, 2020. In the meantime, Ms. Faggett filed a letter informing the Court
that she sent her completed volumes to Ms. Atkins. To date, no reporter’s record
has been filed, and we have had no communication from Ms. Atkins.
We ORDER the complete reporter’s record filed by May 13, 2020. We
caution deputy official reporter Yolanda Atkins that the failure to file the complete
reporter’s record by that date will result in the Court taking whatever remedies it
has available, including ordering Ms. Atkins not sit, until the record is filed.
We DIRECT the Clerk to send copies of this order to the Honorable Lela
Mays, Presiding Judge, 283rd Judicial District Court; to Vearneas Faggett, office
court reporter, 283rd Judicial District Court; Yolanda Atkins, official deputy court
reporter; and to counsel for all parties.
/s/ LANA MYERS
JUSTICE
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183 Wis.2d 133 (1994)
515 N.W.2d 504
Louis R. NOVAK, Plaintiff-Appellant,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a domestic corporation, Defendant-Respondent.
No. 93-0454.
Court of Appeals of Wisconsin.
Submitted on briefs November 3, 1993.
Decided March 15, 1994.
*134 For the plaintiff-appellant the cause was submitted on the briefs of Robert L. Elliott of Hausmann-McNally, S.C., of Milwaukee.
For the defendant-respondent the cause was submitted on the briefs of James T. Murray, Jr. and Ronald G. Pezze, Jr., of Peterson, Johnson & Murray, S. C., of Milwaukee.
Before Sullivan, Fine and Schudson, JJ.
SULLIVAN, J.
The issue in this case is whether the trial court correctly granted summary judgment in favor of American Family Mutual Insurance Company on the basis that American had no duty to defend upon exhaustion of its policy limit by payment of a settlement. Louis R. Novak appeals from a final order in which the trial court: denied Novak's motion for partial summary judgment against American Family, his liability insurer; granted American Family's motion for summary judgment; and dismissed Novak's amended *135 complaint which alleged that American Family had breached its duty to provide a defense.
On June 30, 1991, Novak, operating the vehicle declared in American Family's policy, struck and killed a bicyclist. On August 13, American Family advised Novak that it would not defend him beyond policy limits. On August 23, American Family offered the $100,000 policy limits to settle all claims against it, its named insured, Annette R. Novak, and Novak[1] in exchange for full releases. The decedent's widow rejected the offer and filed her wrongful death action on October 18. A settlement was achieved on October 29, which released American Family upon payment of the policy limit of $100,000 and released Novak to the extent of policy limits only. Novak retained an attorney to defend on the excess and settled in the fall of 1992. He filed this action seeking a judgment declaring his rights under the policy, for a determination of American Family's tortious bad faith, and for damages.
American Family sought summary judgment on the basis that it had no duty to defend as it had already exhausted the policy limits by paying a settlement to the decedent's widow. In contrast, Novak sought summary judgment against American, arguing that American had rejected Novak's defense in bad faith and without first adjudicating its duty to defend, and that American could not enforce what Novak calls a "pay and walk" provision because that provision violates Wisconsin public policy. The trial court granted American Family's summary judgment motion. Novak appeals.
American Family's liability policy provided:
*136 PART ILIABILITY COVERAGE
You have this coverage if Bodily Injury Liability and Property Damage Liability coverage is shown in the declarations. We will pay damages an insured person is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer.
We will defend any suit or settle any claim for damages payable under this policy as we think proper.
HOWEVER, WE WILL NOT DEFEND ANY SUIT AFTER OUR LIMIT OF LIABILITY HAS BEEN OFFERED OR PAID.
(Emphasis and capitalization in original.) It is the last sentence of this liability coverage provision that is at issue in this case.
[1, 2]
Interpretation of insurance policy provisions in the context of undisputed facts presents an issue of law for which we owe no deference to the conclusions of the trial court. St. John's Home v. Continental Cas. Co., 147 Wis. 2d 764, 781, 434 N.W.2d 112, 119 (Ct. App. 1988). We apply an objective test to the insurance contract and interpret it as it would be understood by a reasonable person in the insured's position. Id.
[3, 4]
We affirm a summary judgment if there exists no genuine issue of material fact and if the movant is entitled to judgment as a matter of law. Id. at 781-82, 434 N.W.2d at 119. We apply the same methodology as the trial court in our review of summary judgment but, again, owe no deference to the conclusions of the trial court. Id. at 782, 434 N.W.2d at 119. In Smith v. Wisconsin Physicians Servs., 152 Wis. 2d 25, 29, 447 *137 N.W.2d 371, 372 (Ct. App. 1989), we restated the summary judgment methodology and we need not repeat that analysis here. With these review standards and methodology in mind, we determine whether the "pay and walk" provision of American Family's policy violated its duty to defend Novak, whether the provision violated the public policy of the state, and whether American Family is liable for breach of contract or bad faith.
Novak argues that American Family's duty to him is fulfilled only upon payment of policy limits incidental to an agreement or judgment which meets his approval or which finally settles the pending claim against him within policy limits. Novak contends that American Family breached its duty to defend him when it paid policy limits and refused to defend him on the excess. We disagree.
The duty to defend is a creature of contract. No Wisconsin statute prescribes a duty to defend or restricts its contractual limitation. Section 632.32, STATS., regulating motor vehicle insurance policies, provides no such duty and contains no such limit upon the right to contract.
A clause similar to the one at issue in this case was considered by the supreme court in Gross v. Lloyds of London Ins. Co., 121 Wis. 2d 78, 358 N.W.2d 266 (1984). In that case, the insurer sought to terminate its defense of the insured by tendering its policy limit for settlement.[2]Id. at 82, 358 N.W.2d at 268. The court *138 began its analysis by explaining that revisions to the standard form liability policy in 1966 "were meant to clarify when the insurer's duty to defend the insured has been satisfied by providing that the duty to defend ceases after the policy limits are exhausted either by payment of judgments or settlements." Id. at 85, 358 N.W.2d at 270. The court then stated:
We conclude the "payment of judgments or settlements" language in the 1966 policy form contemplates payment upon the conclusion of the litigation or termination of the claim by settlement. The "tendered for settlements" language added by the insurer [in this case, however,] contemplates payment prior to the conclusion of the litigation or settlement of the claim against the insured. The addition of the "tendered for settlements" language is persuasive evidence of a substantial change in the obligation of the insurer to defend.
Id. at 86, 358 N.W.2d at 270 (emphasis added). Because the insurer had provided language that departed from standard practice, and because the insured had received only a binder, and not a copy of the policy which contained the new provision, the court concluded that the insured had no notice of the provision and it could not be enforced against him. Id. at 88, 358 N.W.2d at 271.
Although the court decided the case based upon the lack of notice, it went on to discuss how policy language could effectuate a limitation on the duty to defend:
In order for an insurer to be relieved of its duty to defend upon tender of the policy limits, the "tendered *139 for settlements" language must be highlighted in the policy and binder by means of conspicuous print, such as bold, italicized, or colored type, which gives clear notice to the insured that the insurer may be relieved of its duty to defend by tendering the policy limits for settlement .... Insureds will thus be put on notice that they are buying a policy of indemnity and a defense only up to the point where the insurer tenders the policy limits for settlement and that the insurer's duty to defend ceases once such a tender has been made. Once insureds have been given notice by the insurer of a limited duty to defend, they may choose to afford themselves greater protection in the defense of claims by increasing the amount of their policy limits or seek a policy which provides for unlimited defense. Insurers may terminate their duty to defend their insureds by tendering the policy limits, but they may do so only if the insureds receive adequate notice as outlined in this opinion.
Id. at 89, 358 N.W.2d at 271-72 (emphasis added).
The challenged language in American Family's policy has complied with the requirement that such language be highlighted. Novak tries to distinguish Gross from the present case, however, on two grounds: (1) that the relevant language of the provision in American's policy and the policy in Gross is not identical; and (2) that Gross did not decide whether such a provision was contrary to public policy.
Novak argues that American's policy allows it to merely "offer" the money and walk away from its duty to defend. Novak's argument is somewhat undeveloped and fails to explain why this is significant. The provision in Gross allowed a limitation on the duty to defend where the limit of liability had been "tendered for settlements." According to BLACK'S LAW DICTIONARY, 1467 *140 (6th ed. 1990), a tender is "[a]n offer of money" or "[t]he act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due ...." In both Gross and the present case, the insurer did in fact pay out on the settlement "offer" or "tender." In neither case is the insurer attempting to escape liability and, at the same time, attempting to limit the duty to defend. The language of the clauses is not significantly different and thus, we conclude that Novak has not distinguished the present case from Gross.
Novak's second challenge to the "pay and walk" provision begins with his assertion that the supreme court never addressed public policy concerns in Gross. The provision violates public policy, Novak urges, because it permits the insurer, in the course of investigation, to discuss the facts confidentially with its insured, who has a duty to cooperate, and then to use those facts when concluding to abandon the defense upon payment of policy limits. It sends a message, Novak claims, to all insureds not to discuss facts with their insurers and rather run the risk of a non-cooperation defense than the risk of defending with personal resources.
We agree with Novak to the extent that he argues that the supreme court's majority opinion in Gross did not mention public policy.[3] Nonetheless, this court's *141 opinion in that same case held that such a provision did not violate public policy. Gross v. Lloyds of London Insurance Co., 118 Wis. 2d 367, 375, 347 N.W.2d 899, 903 (Ct. App.), rev'd on other grounds, 121 Wis. 2d 78, 358 N.W.2d 256 (1984). We stated: "We conclude that there is nothing contrary to public policy in an insurer's explicit policy language which limits the duty to defend to the policy limits." Id. In the absence of a statement from the supreme court stating otherwise, our holding is controlling. Thus, we conclude that the limitation on the duty to defend is enforceable and is not contrary to public policy.
Finally, Novak argues that, even if the contractual provision is enforceable, American Family's unilateral decision to pay the limits and abandon the further defense constituted a breach of contract and tortious bad faith. He concludes that he is entitled to recover compensatory and punitive damages. Novak contends that American Family should have obtained a stay of proceedings for trial of liability and first litigate the *142 validity of the "pay and walk" provision. The cases cited by Novak, however, fail to support his position.
In Elliott v. Donahue, 169 Wis. 2d 310, 314-15, 485 N.W.2d 403, 404-05 (1992), the insurer had denied coverage based on a non-permissive use policy exclusion. The coverage issue was subsequently decided in favor of the insured. Id. at 315, 485 N.W.2d at 405. The supreme court determined that the insurer was obligated for the insured's attorney fees incurred in a successful effort to defend coverage. Id. at 314, 485 N.W.2d at 404. In United States Fire Ins. Co. v. Good Humor Corp., 173 Wis. 2d 804, 815-17, 496 N.W.2d 730, 733-34 (Ct. App. 1993), an issue existed as to whether a comprehensive general liability policy provided certain liability coverage to the corporate successor of the tortfeasor. In both cases, the insurer disputed coverage, and the coverage issue was subsequently decided in favor of the insured. In contrast, here, American Family has never disputed coverage, and in fact has paid the maximum coverage provided under the clear language of the policy.
[5]
No material issue of fact exists. American Family has not failed to fulfill its obligations under the contract. Because American Family was entitled to judgment as a matter of law, we affirm the trial court's grant of summary judgment.
By the Court.Order affirmed.
NOTES
[1] Novak was a relative insured under the liability provision of the policy.
[2] The policy in Gross contained the following limitation:
[T]he Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exhausted by payment of judgments or settlements or after such limit of the Company's liability has been tendered for settlements. Gross, 121 Wis. 2d at 83, 358 N.W.2d at 269 (emphasis omitted).
[3] Although the words "public policy" do not appear in the majority opinion, Chief Justice Heffernan, in his concurrence, in which Justice Bablitch joined, writes:
I do not join in the dicta concerning the public policy of allowing insurers to terminate their obligation to defend nor in the sub silentio implication that, had proper notice been given, the provision in question would be enforceable. These public policy issues were neither considered nor decided by this court and, under the rationale of the court, are not necessary for the disposition of the case.
Gross, 121 Wis. 2d at 90, 358 N.W.2d at 272. Justice Abrahamson, concurring, observed the following:
As I read the opinion, the majority does not decide the public policy issueeither in dicta ... or in holding ....
... Indeed the whole point of the majority opinion seems to be to avoid the public policy question entirely.
Id. at 91, 358 N.W.2d at 272-73. Finally, Justice Ceci, concurring, writes:
I agree with the majority's holding that it is not against public policy for an insured [sic] to terminate its duty to defend by tendering its policy limits.
Id. at 92, 358 N.W.2d at 273.
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47 F.3d 1162
U.S.v.Warner (Trevor), a/k/a Warner ('Maliki' Trevor)
NO. 94-7486
United States Court of Appeals,Third Circuit.
Jan 24, 1995
Appeal From: D.V.I., No. 91-00054
1
AFFIRMED.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CORY HOWELL,
Petitioner
v.
OFFICE OF COMPLIANCE,
Respondent
______________________
2017-1755, 2017-1757
______________________
Petitions for review of a decision of the Board of Di-
rectors of the Office of Compliance in Nos. 14-AC-08
(DA,FM,FL,RP), 14-AC-41 (DA,FM,FL,RP).
______________________
JUDGMENT
______________________
JEFFREY HOWARD LEIB, Washington, DC, argued for
petitioner.
JOHN D. UELMEN, Office of the General Counsel,
United States Office of Compliance, Washington, DC,
argued for respondent.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (REYNA, CLEVENGER, and WALLACH,
Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
April 5, 2018 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
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978 F.2d 1268
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Rick G. STALLINGS, Petitioner-Appellant,v.Robert J. TANSY, Respondent-Appellee.
No. 92-2080.
United States Court of Appeals, Tenth Circuit.
Nov. 5, 1992.
Before McKAY, Chief Judge, and SEYMOUR and PAUL KELLY, Jr., Circuit Judges.
ORDER AND JUDGMENT*
McKAY, Chief Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
Petitioner Rick G. Stallings appeals the denial of his petition for writ of habeas corpus. We vacate the district court's judgment and remand for reconsideration of Mr. Stallings' petition.
3
Mr. Stallings raised four issues before the district court: (1) whether the trial court erred in refusing to give an instruction on simple battery; (2) whether the trial court erred in admitting the audiotaped testimony of a witness; (3) whether the trial court erred in not granting a directed verdict; and (4) whether the trial court erred in allowing an amendment to the indictment. The magistrate judge's recommended decision, adopted by the district court, found that no error had occurred.
4
Mr. Stallings' issues are fact specific, requiring a review of the state trial proceedings. The district court's docket sheet, however, does not contain any indication that the New Mexico trial record was before the district court. Because we cannot be sure whether the record was considered adequately when the case was decided, we cannot review the district court's decision.
5
The judgment of the United States District Court for the District of New Mexico is VACATED, and the cause is remanded for further proceedings consistent with this order and judgment.
*
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30232
Plaintiff-Appellee, D.C. No. 4:18-cr-00016-BMM-1
v.
MEMORANDUM*
DEZIRAE DAWN LIGHTHIZER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
Dezirae Dawn Lighthizer appeals from the district court’s judgment and
challenges the $4,500 order of restitution imposed following her guilty-plea
conviction for counterfeiting obligations or securities of the United States, in
violation of 18 U.S.C. § 471. We have jurisdiction under 28 U.S.C. § 1291, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Lighthizer’s
request for oral argument is denied.
we affirm.
Lighthizer contends that the district court erred by finding that she caused
the losses suffered by several of the victims for whom she was ordered to pay
restitution. We review the amount of a restitution award for abuse of discretion,
and the factual findings supporting an order of restitution for clear error. See
United States v. Galan, 804 F.3d 1287, 1289 (9th Cir. 2015). The district court
heard testimony from a law enforcement agent linking each of the transactions for
which restitution was ordered to the serial numbers of the counterfeit bills that
Lighthizer admittedly placed into circulation. On this record, the district court did
not clearly err in finding that Lighthizer caused the losses, and it did not abuse its
discretion by ordering Lighthizer to pay $4,500 in restitution. See United States v.
De La Fuente, 353 F.3d 766, 772-73 (9th Cir. 2003).
AFFIRMED.
2 18-30232
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957 So.2d 455 (2006)
Ex parte Emory L. TERRY, as administrator of the estate of Fay Sewell Terry, deceased.
(In re In the matter of the estate of Fay Sewell Terry, deceased).
1051404.
Supreme Court of Alabama.
October 20, 2006.
*456 Stephen Mitchell Tunstall, Mobile; and Thomas P. Garth of Lyons, Pipes & Cook, P.C., Mobile, for petitioner Emory L. Terry.
J. Michael Druhan, Jr., and Jason K. Hagmaier of Johnston Druhan, L.L.P., Mobile, for respondent Judge Don Davis.
LYONS, Justice.
Emory L. Terry, as the administrator of the estate of Fay Sewell Terry, deceased ("the administrator"), petitions this Court for a writ of mandamus directing the Mobile Probate Court to vacate its June 23, 2006, and July 12, 2006, orders, which were entered after the administrator filed a petition in the circuit court to remove the administration of the estate from the probate court to the Mobile Circuit Court. We deny the petition.
I. Facts and Procedural Background
On June 13, 2006, the administrator filed a petition to remove the administration of the estate from the probate court to the circuit court. On June 23, 2006, the probate judge entered an order purporting to deny the petition for removal, based primarily on its view that final settlement of the administration of the estate had begun and that the petition was therefore untimely. The administrator then filed with the probate court a motion to vacate the court's order denying removal. On June 30, 2006, the administrator filed a petition for a writ of mandamus with this Court asking us to direct the probate judge to vacate its June 23, 2006, order. On July 12, 2006, the probate court issued another order, vacating its June 23, 2006, order but reincorporating the findings of fact and conclusions of law of the previous order.
Based in part on the probate court's findings of fact and conclusions of law in its July 12 order, incorporated from the June 23 order, the circuit court entered its initial order on July 17, 2006, over one month after the filing of the petition to remove, denying the petition. The administrator then filed a motion to amend or vacate the circuit court's order; that motion is being held in abeyance pending our review of this mandamus petition. The administrator also filed an amended petition for the writ of mandamus contending that the fact that the July 12 order set aside the June 23 order, which was the subject of the original mandamus petition, *457 does not render the removal issue moot because the probate court, he says, had no jurisdiction to rule on the petition for removal and all orders entered after the filing of the petition for removal should be stricken.
II. Standard of Review
The administrator's challenge to the probate court's jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Johnson, 715 So.2d 783, 785 (Ala. 1998). As we recently stated in Ex parte Williford, 902 So.2d 658, 661-62 (Ala.2004):
"Our standard of review of a petition for a writ of mandamus is well settled: `Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)."
Although this Court reviews a mandamus petition to determine whether the trial court exceeded its discretion, this Court reviews issues of law de novo.
"`[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court's judgment carries no presumption of correctness.' Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996). Questions of law are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala.2004)."
Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004). The petitioner's claim that the probate court lacked subject-matter jurisdiction to rule on the removal petition presents a question of law, which we review de novo.
III. Analysis
Section 12-11-41, Ala.Code 1975, provides:
"The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court."
(Emphasis added.)
In Ex parte McLendon, 212 Ala. 403, 405, 102 So. 696, 698 (1924) ("McLendon I"), this Court addressed the pleading requirements of a removal petition under the act that is now codified at § 12-11-41:
"The words `at any time before a final settlement,' found in the removal act, mean before proceedings for settlement begin, not before they are completed. The better and approved practice is to aver in the removal petition that no steps have been taken for a settlement in the probate court."
(Emphasis added.) Although McLendon I refers to "[t]he better and approved practice," the Court in McLendon I did not require that the petition for removal plead the timeliness of the petition. Instead, § 12-11-41 is specific as to what must be pleaded in a petition for removal of the *458 administration of an estate from the probate court to the circuit court to make a prima facie case for removal. The McLendon I Court went on to state: "We would say a petition using the statutory words would be sufficient, if the facts support them in their legal sense. Being an ex parte proceeding, it is the existence of these facts presented in statutory way that gives the court jurisdiction." 212 Ala. at 405, 102 So. at 698. Because a petition containing the required averments under § 12-11-41 conveys jurisdiction to the circuit court, an order granting a removal petition would be a formality, when the circuit court makes "no judicial finding that these facts exist," but merely enters "an order . . . as of course." 212 Ala. at 405, 102 So. at 698. Although the administrator's petition for removal lacked averments that would constitute what the McLendon I Court described as "[t]he better and approved practice," it did contain the minimum pleading requirements required by statute to make a prima facie case for removal.
Consistent with McLendon I, this Court in Ex parte McLendon, 824 So.2d 700, 704 (Ala.2001) ("McLendon II"), held that when a party has made a prima facie showing that the party is entitled to the removal of the administration of an estate under § 12-11-41, "the circuit court must order its removal, subject to retransfer upon a motion by the opponent of the transfer, and a finding by the circuit court that the party effecting removal lacked standing under the statute." In McLendon II, this Court held that the circuit court, not the probate court, must determine the threshold issue of standing, and we issued a writ of mandamus requiring the circuit court to set aside its order deferring to the probate court for a determination of standing. There, as here, the probate court continued to assert jurisdiction during the pendency of the petition for removal.
However, the petition for removal in McLendon II was also grounded upon § 43-8-198, applicable to will contests, which provides, in pertinent part:
"Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made. . . . "
(Emphasis added.) Unlike § 12-11-41, the duty to order the removal under § 43-8-198 is on the probate court, not the circuit court. Consequently, the petitioner in McLendon II sought a writ of mandamus directed to both the probate court and the circuit court, and this Court issued the writ as to each petition. In this proceeding, the administrator sought a writ of mandamus directed to only the probate court. The administrator's mandamus petition contained averments relating to standing and asserting that the estate could be better administered in the circuit court as required by § 12-11-41; it did not indicate the existence of a will contest implicating § 43-8-198.
Pursuant to § 12-11-41 and the construction of that statute and its predecessors in McLendon I and McLendon II, the circuit court should have granted the administrator's removal petition, thereby depriving the probate court of any opportunity to engage in further proceedings. However, not only did the circuit court fail to enter an order on the removal petition for more than a month, it also denied the petition based upon conclusions as to untimeliness drawn from matters set forth in orders entered by the probate court during the interval between the filing of the petition for removal and the entry of the circuit court's order.
*459 The root of the problem in this case is the failure of the circuit court to act. However, that failure does not warrant this Court's granting the administrator's petition for a writ of mandamus requiring the probate court to set aside any orders it entered during the month-long interval during which the circuit court failed to enter the order necessary to take jurisdiction of the estate from the probate court. As previously noted, the separate provision for removal of a will contest that requires action by the probate court (§ 43-8-198) is not here at issue. A proper remedy would have been a petition for a writ of mandamus directed to the circuit court requiring it (a) to set aside its order denying the petition, (b) to enter the ex parte order granting the petition as required by § 12-11-41 based upon the averments in the petition, and (c) thereafter to review de novo, without regard to any findings of the probate court, the question of the timeliness of the petition.
In this fashion, the administrator would have been placed in the position in which he would have been had the circuit court acted seasonably on the petition for removal. Alternatively, and in view of the untimeliness of a writ of mandamus directed to the circuit court at this stage of the proceedings, if upon denial of this petition for a writ of mandamus the circuit court denies the administrator's pending motion to amend or to vacate its order denying removal, being held in abeyance until we dispose of the petition for a writ of mandamus, the administrator may appeal the order of the circuit court. See Ex parte Kelly, 243 Ala. 184, 187, 8 So.2d 855, 857 (1942) ("The effect of the decree appealed fromremanding the administration of the estate to the probate courtwas to put this branch of the case out of the circuit court, and was such final decree as will support the appeal."). Thus, in the context of the facts of this case, the administrator has another adequate remedy.
IV. Conclusion
Because the administrator fails to demonstrate a clear legal right to a stay in the probate court by the mere filing of a petition for removal pursuant to § 12-11-41 and because the administrator has another available remedy if the circuit court fails to grant the petition for removal upon its being filed with the necessary statutory averments, the petition for a writ of mandamus is denied.
PETITION DENIED.
NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6347
LEON EUGENE GRAYSON,
Petitioner - Appellant,
v.
A.J. PADULA, Warden of Lee Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Henry M. Herlong, Jr., Senior
District Judge. (4:09-cv-00089-HMH)
Submitted: February 10, 2011 Decided: February 17, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Leon Eugene Grayson, Appellant Pro Se. William Edgar Salter,
III, Assistant Attorney General, Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leon Eugene Grayson seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and denying relief on his 28 U.S.C. § 2254 (2006)
petition. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85. We have independently reviewed the record
and conclude that Grayson has not made the requisite showing. *
*
We find that Grayson has waived appellate review of his
ineffective assistance of counsel claims by failing to file
specific objections to the magistrate judge’s recommendation as
to those issues after receiving proper notice of the
consequences of failure to object. See United States v.
(Continued)
2
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We deny Grayson’s motions to vacate his judgment
and dismiss his sentence, for copies of transcripts at the
Government’s expense, and for “all Brady materials” at the
Government’s expense. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
Midgette, 478 F.3d 616, 621 (4th Cir. 2007) (“[A] party . . .
waives a right to appellate review of particular issues by
failing to file timely objections specifically directed to those
issues.”).
3
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17-536-cr
United States v. Wade
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 5th day of March, two thousand nineteen.
4
5 PRESENT: ROBERT A. KATZMANN
6 Chief Judge,
7 ROBERT D. SACK,
8 REENA RAGGI,
9 Circuit Judges.
10 ----------------------------------------------------------------------
11 UNITED STATES OF AMERICA,
12 Appellee,
13 v. No. 17-536-cr
14
15 WHETSEL WADE,
16 Defendant-Appellant,
17
18 LARONE GRAHAM, AKA ABGOD GRAHAM, JAMEL
19 THOMPSON, AKA MEL, BOY BOY, QURAN HOLLIS,
20 KAREEM DAVIS, AKA TONY ELLIS, AKA K.I.,
21 KORY TURNER, WYNETTE BELL, AKA WYNETTE
22 HAYNES, NAQUON ARMSTEAD, AKA N.A., SHARIF
23 OWENS, SEAN HIGHTOWER, AKA HOP, MISHAEL
24 BENYEHUDAH, DARRYL S. SINGLETON, AKA D,
25 VENCENT HARRISTON, MICHAEL HARRISTON,
26 EARL HARRISTON, CARL POLLARD, AKA BLUE,
27 CHRISTHIAN GALARZA, JAMES GANT, AKA
28 ROOSTER, DARNELL FOSKEY, AKA D, FRANK
29 MOREA, AKA FAT FRANK
30 Defendants.
1 ----------------------------------------------------------------------
2
3 FOR DEFENDANT-APPELLANT: CHRISTOPHER VOLPE (Kenneth Caruso, on
4 the brief) White & Case LLP, New York,
5 New York.
6
7 FOR APPELLEE: JONATHAN E. ALGOR, Assistant United
8 States Attorney (David C. James, Assistant
9 United States Attorney, on the brief), for Richard
10 P. Donoghue, United States Attorney for the
11 Eastern District of New York, Brooklyn, New
12 York.
13
14 On appeal from the United States District Court for the Eastern District of New
15 York (Seybert, J.).
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
17 AND DECREED that the appeal is dismissed in part, and the judgment of the district
18 court is affirmed.
19 Defendant Whetsel Wade was convicted in 2009 in the United States District Court
20 for the Eastern District of New York (Joanna Seybert, J.) of conspiring to commit Hobbs
21 Act robbery and of brandishing a firearm during a crime of violence, see 18 U.S.C.
22 §§ 924(c), 1951(a), for which crimes he was sentenced to a total prison term of 75 months,
23 to be followed by 60 months’ supervised release. Wade now appeals from a judgment of
24 that same court, entered on February 15, 2017, which revoked his supervised release and
25 sentenced him to an additional 36 months’ incarceration based on Wade’s commission of
26 another crime while on supervision, specifically, promoting prostitution in violation of
27 New York law. Wade argues that the district court’s revocation decision, made after an
28 evidentiary hearing, is infected by four errors: (1) reliance on inculpatory hearsay
2
1 statements from an anonymous minor, who reported that she engaged in prostitution at
2 Wade’s direction, which statements were admitted without the interest-of-justice
3 determination required by Fed. R. Crim. P. 32.1(b)(2)(C); (2) reliance on uncorroborated
4 allegations in Wade’s state court indictment for promoting prostitution; (3) the denial of
5 discovery pertaining to the anonymous hearsay declarant; and (4) the denial of a
6 continuance pending the conclusion of Wade’s state prosecution.
7 Subsequent to briefing and argument, the court learned that a judgment of
8 conviction may have been entered against Wade for the promotion of prostitution that was
9 the subject of his violation hearing. Accordingly, on December 14, 2018, the court
10 entered an order directing the parties “to (1) advise whether a state judgment of conviction
11 has now been entered against Wade for one or more of the prostitution crimes at issue in
12 his revocation hearing and, if so, (2) [to] provide the Panel with a copy of that judgment.”
13 Order, ECF No. 95 (Dec. 14, 2018). The court further ordered that, if Wade had been so
14 convicted, the parties brief the issue of whether such conviction “render[ed] Wade’s
15 challenges to revocation either harmless or moot.” Id. The parties have now answered
16 these questions, confirming Wade’s state conviction and acknowledging that conviction to
17 make it unnecessary for this court to address the merits of Wade’s challenges on this appeal,
18 with Wade relying on mootness and the government relying on harmless error to support
19 that conclusion.
20 Specifically, on January 11, 2019, Wade’s counsel provided this court with a New
21 York State certificate of disposition indicating that on June 21, 2018, Wade was convicted,
22 based on his own guilty plea, of second-degree promotion of prostitution in violation of
3
1 N.Y. Penal Law § 230.30(2), for which crime he was sentenced to a prison term of five-to-
2 ten years. See Declaration of Christopher D. Volpe, ECF No. 96 (Jan. 11, 2019). 1
3 Granted a 30-day extension to address the effect of that conviction on Wade’s appeal in
4 this case, counsel advised this court by letter dated February 14, 2019, that after consulting
5 with Wade and researching applicable law, counsel “believe that there are no non-frivolous
6 arguments that Mr. Wade’s appeal has not been rendered moot by his state court guilty
7 plea.” White & Case Letter at 1, ECF No. 101 (Feb. 14, 2019). Rephrased in the
8 affirmative, defense counsel effectively concede that Wade’s state prostitution conviction
9 renders his arguments on this appeal moot.
10 In its simultaneously filed letter of February 14, the government submitted that even
11 if Wade’s state conviction does not render his appeal moot, it compels a conclusion that
12 the errors of which he complains on this appeal are harmless beyond a reasonable doubt.
13 See Gov’t Letter at 5-9, ECF No. 102 (Feb. 14, 2019).
14 In sum, no party any longer asks this court to address the merits of Wade’s appeal.
15 The only question remaining is whether we dismiss the appeal as moot, or affirm the district
16 court’s judgment because, if any errors were committed in finding Wade to have violated
17 supervision by committing the state crime of promoting prostitution, Wade’s state
18 conviction for that crime renders those errors harmless. We conclude that precedent
1
It appears undisputed that this conviction pertains to the same prostitution operation at
issue on this appeal.
4
1 warrants dismissal of the appeal in part, insofar as it rests on the moot argument, and
2 affirmance of judgment.
3 An appeal is rendered moot “if an event occurs while a case is pending on appeal
4 that makes it impossible for the court to grant any effectual relief whatever to a prevailing
5 party.” Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotation
6 marks omitted). To the extent Wade’s state prosecution for promoting prostitution has
7 now concluded, no further action by this court is required to grant him the relief sought in
8 his fourth claim, i.e., an extension of federal proceedings pending the outcome of the state
9 case. That part of this appeal is moot and, therefore, dismissed.
10 As to Wade’s other complaints, however—the district court’s failure to make the
11 interest-of-justice determination required by Fed. Rule Crim P. 32.1(b)(2)(C) before
12 relying on the hearsay statements of an anonymous non-testifying minor, its failure to
13 afford Wade discovery about that hearsay declarant, and its reliance on uncorroborated
14 allegations in his state indictment—were we to identify merit in these claims, we could
15 certainly grant Wade the relief of vacatur and remand for a new violation hearing. But as
16 the parties recognize, on such remand, the district court would not have to make Rule
17 32.1(b)(2)(C) findings, or correct any of the other alleged errors because the government
18 would not need to rely on a hearsay declarant or indictment allegations to demonstrate
19 Wade’s promotion of prostitution. It would simply offer the state judgment of conviction
20 to prove his commission of that crime. Thus, Wade’s state conviction does not make it
21 impossible for this court to grant relief on this appeal. But it does compel us to conclude
22 that, even if any errors informed the district court’s initial determination that Wade violated
5
1 his supervision by promoting prostitution, those errors are harmless beyond a reasonable
2 doubt in light of his conviction. See generally United States v. Aspinall, 389 F.3d 332,
3 346 (2d Cir. 2004) (holding failure to comply with interest-of-justice requirement of Rule
4 32.1(b)(1)(C) subject to harmless-error review), abrogated on other grounds by United
5 States v. Booker, 543 U.S. 220 (2005); United States v. Morrison, 153 F.3d 34, 55 (2d
6 Cir. 1998) (holding that jury’s guilty verdict rendered harmless any evidentiary error in
7 procurement of indictment). A criminal conviction, after all, represents a guilt
8 determination beyond a reasonable doubt, a higher standard of proof than the government
9 must satisfy to establish a violation of supervised release. See United States v. Carthen,
10 681 F.3d 94, 99–100 (2d Cir. 2012); 18 U.S.C. § 3583(e)(3) (requiring violation to be
11 demonstrated by preponderance of evidence); see also Menna v. New York, 423 U.S. 61,
12 62 n.2 (1975) (observing that counseled guilty plea is “admission of factual guilt so reliable
13 that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from
14 the case”).
15 Accordingly, in light of Wade’s state conviction for promoting prostitution, we
16 hereby DISMISS his appeal in part as moot and otherwise AFFIRM the district court’s
17 judgment.
18 FOR THE COURT:
19 CATHERINE O’HAGAN WOLFE, Clerk of Court
20
6
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UNITED STATES COURT OF APPEALS
Filed 4/30/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 95-7132
v. (D.C. No. CV-94-666-C)
PAULINE W. CODY, (E.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
We affirm for the reasons given by the district court.
AFFIRMED. The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Entered for the Court
Monroe G. McKay
Circuit Judge
2
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209 B.R. 627 (1997)
In re AMES DEPARTMENT STORES, INC., Eastern Retailers Service Corporation, et al., Debtors.
FIRST TRUST OF NEW YORK, N.A., f/k/a Bankamerica National Trust Company, as Trustee of the Zayre Landlord Trust, Appellant,
v.
The JOY GOODWIN RUDD TRUST, Appellee.
No. 96 Civ. 529 (JES).
United States District Court, S.D. New York.
June 26, 1997.
Ropes & Gray, Boston, MA (Douglas H. Meal, of counsel), for Appellant.
Lange, Simpson, Robinson & Somerville, Birmingham, AL (Richard P. Carmody, Stephen P. Leara, of counsel), for Appellee.
Day, Berry & Howard, Stamford, CT (Thomas D. Goldberg, Joy Beane, of counsel), for Appellee.
*628 OPINION AND ORDER
SPRIZZO, District Judge.
Appellant First Trust of New York, N.A., f/k/a BankAmerica National Trust Company, as Trustee of the Zayre Landlord Trust (the "Zayre Landlord Trustee") filed the instant appeal from a Memorandum Decision and Order of the United States Bankruptcy Court for the Southern District of New York ("Bankruptcy Court") granting summary judgment to appellee, the Joy Goodwin Rudd Trust (the "Rudd Trust"), allowing Claim No. 8306 (the "Claim") for lease rejection damages, and denying the Zayre Landlord Trustee's cross-motion for summary judgment disallowing the Claim. For the reasons that follow, the Memorandum Decision and Order of the Bankruptcy Court allowing the Rudd Trust's claim is vacated and the case is remanded for further proceedings consistent with this Opinion.
BACKGROUND
On June 5, 1980, the Joy E. Goodwin Trust (the "Goodwin Trust"), the Rudd Trust's predecessor in interest, as landlord, leased 60,200 square feet of commercial retail space in the Fort Walton Square Shopping Center (the "Premises") to Zayre Corporation, predecessor in interest to the Zayre Florida Corporation ("Zayre Florida"), a subsidiary of Ames Department Stores, Inc. ("Ames"), as tenant. See Appendix to Brief of Appellant ("App.") at 7, Exh. A, Lease dated June 5, 1980. The thirteen year lease required Zayre Corporation to pay a minimum annual rent of $129,325.00, or $2.15 per square foot. Id. at 10.
On November 13, 1990, Ames and its subsidiaries (collectively, the "Ames Group") commenced Chapter 11 proceedings in United States Bankruptcy Court for the Southern District of New York, before Chief Bankruptcy Judge James A. Goodman.[1] That same day, pursuant to 11 U.S.C. § 365(a) (1994), the Ames Group rejected the shopping center lease and the Premises reverted to the Rudd Trust. See App. at 2.
The Rudd Trust leased the Premises to three replacement tenants. On March 15, 1992, the Rudd Trust leased 51,500 square feet to Ron Callan for a 90-day term at $9,000.00. See App. at 92-93, Exh. H, Affidavit of Kimberly B. Golson Sworn to June 13, 1995 ("Golson Aff.") ¶ 3.[2] Beginning on October 1, 1992, the Rudd Trust leased 25,600 square feet to Consolidated Stores Corporation ("Consolidated") for five years at an annual rent of $75,000.00. See App. at 93, Exh. H, Golson Aff. ¶ 4; App. at 114, Exh. 2, Lease Dated October 1, 1992. Beginning on June 9, 1993, the Rudd Trust leased 34,600 square feet to Home Accents, Inc. ("Home Accents") for seven years at an annual rent of $93,770.04 for the first five years and $101,402.04 for the last two years. See App. at 93-94, Exh. H, Golson Aff. ¶ 5; App. at 141, Exh. 3, Lease Dated June 9, 1993.[3]
From November 13, 1990 to November 30, 1993, the Rudd Trust collected $101,347.15 in rentals. See App. at 94, Exh. H, Golson Aff. ¶ 6. In order to accommodate Consolidated and Home Accents, the Rudd Trust renovated the Premises at a cost of approximately $104,000.00. Id. ¶ 7. The leases with Consolidated and Home Accents (the "New Leases") together occupied the full 60,200 square feet of the Premises. Currently, the Rudd Trust collects $168,770.04 annually from the New Leases $39,445.04 more than would have been due annually under the original lease. Id. ¶¶ 4, 5.
In an affidavit dated April 22, 1992, Rudd Trust trustee Joy G. Adams stated that she considered the current market rental value of the Premises to be no less than three dollars *629 per square foot, or $180,600.00 rent per year. See App. at 81, Exh. F, Adams Aff. ¶ 4. In supporting papers submitted to the Bankruptcy Court, the Rudd Trust explained that this figure was an estimate and not based upon a real estate appraisal. See App. at 242, Plaintiff's Reply To Defendant's Statement Of Material Facts As To Which There Exists No Genuine Issue To Be Tried, dated June 17, 1995 ¶ 1.
On April 15, 1991, pursuant to 11 U.S.C. § 502(b)(6), the Rudd Trust filed a Chapter 11 proof of claim, Claim No. 8306, seeking one year's rent of $129,325.00 arising from the rejection and termination of the lease. See App. at 76, Exh. D, Proof of Claim.
In or about December, 1992, the Bankruptcy Court confirmed the Ames Group's reorganization plan (the "Ames Plan") and classified Claim No. 8306 as the "Zayre Landlord Claim." The Ames Plan gave the Zayre Landlord Trust responsibility for defending against and making payments on the Zayre Landlord Claims, including Claim No. 8306.
On January 16, 1995, in Bankruptcy Court, the Rudd Trust moved for summary judgment allowing Claim No. 8306 arguing that under Florida Law the Rudd Trust is entitled to damages from Zayre's rejection of the lease. The Zayre Landlord Trustee cross-moved for summary judgment disallowing the Claim arguing that under the doctrine of City Bank Farmers Trust Co. v. Irving Trust Co., 299 U.S. 433, 443, 57 S.Ct. 292, 297, 81 L.Ed. 324 (1937), the claim is invalid because the rental value of the Premises exceeded the rent reserved in the lease, and thus the Rudd Trust suffered no damages.
On December 28, 1995, in a two-page Memorandum Decision and Order, the Bankruptcy Court granted the Rudd Trust's motion for summary judgment and denied the Zayre Landlord Trustee's cross-motion for summary judgment. See App. at 311-13, Memorandum Decision Dated December 27, 1995; Order Dated December 27, 1995. The Bankruptcy Court followed the reasoning of Wolf Partnership v. Monheit, 173 B.R. 80, 82 (Bankr.S.D.N.Y.1994), an earlier decision by that court, in which it held that a landlord's claim for lease rejection damages is to be determined in accordance with state law and the contract between the parties. Id. The Bankruptcy Court found that the Rudd Trust had actual mitigated damages of $281,954.32, that it had made reasonable attempts to mitigate, and that pursuant to 11 U.S.C. § 502(b)(6) (1994), it was entitled to $129,325.00 in damages. Id.[4]
On January 5, 1996, the Zayre Landlord Trustee filed the instant appeal from the Bankruptcy Court's Memorandum Decision and Order. On appeal, the Zayre Landlord Trustee argues that (1) the Bankruptcy Court should have applied the measure of damages enunciated in Farmers Trust and disallowed Claim No. 8306 in its entirety; (2) under Florida law, if applicable, the Bankruptcy Court should have found a surrender and acceptance of the lease and disallowed Claim No. 8306 in its entirety; and (3) genuinely disputed issues of fact with respect to the Rudd Trust's efforts to mitigate damages preclude summary judgment in favor of the Rudd Trust.
DISCUSSION
The Court reviews a bankruptcy court's grant of summary judgment de novo. See In re Chateaugay Corp., 89 F.3d 942, 946 (2d Cir.1996); In re Colonial Realty Co., 980 F.2d 125, 130 (2d Cir.1992); In re CIS Corp., 172 B.R. 748, 754 (S.D.N.Y.1994). Pursuant to Federal Rule of Bankruptcy Procedure 7056, summary judgment in bankruptcy proceedings is governed by Federal Rule of Civil *630 Procedure 56(c) and shall be granted only when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Consarc Corp. v. Marine Midland Bank N.A., 996 F.2d 568, 572 (2d Cir.1993).
Pursuant to 11 U.S.C. §§ 501 and 502(b)(6), where a landlord of real property asserts a claim against the estate of a debtor for damages resulting from the anticipatory breach of a lease, damages are limited to the rent reserved by such lease without acceleration, for one year, or fifteen (15) percent of the remaining term of the lease for a total period not to exceed three years, whichever sum is greater. See 11 U.S.C. § 502(b)(6). However, the Bankruptcy Code does not define how damages are measured.
The Bankruptcy Act of 1898 as originally enacted did not give a landlord a provable claim for rent due in the future under a lease after a trustee's rejection of the lease. See City Bank Farmers Trust Co. v. Irving Trust Co., 299 U.S. 433, 437, 57 S.Ct. 292, 294, 81 L.Ed. 324 (1937); Oldden v. Tonto Realty Corp., 143 F.2d 916, 918 (2d Cir.1944). Under the Bankruptcy Act, courts were virtually unanimous in concluding that such a claim was not capable of proof, since it involved only a future claim contingent upon uncertain events and thus no fixed liability absolutely owing. See Oldden, 143 F.2d at 918. Consequently, a tenant's liability for future rent could not be discharged and remained enforceable as installments of rent fell due. See Farmers Trust, 299 U.S. at 437, 57 S.Ct. at 294.
This frustrated the purposes of bankruptcy in that the rehabilitation of a bankrupt through discharge of his or her debts was impaired by the non-dischargeable character of these future rent claims. See Oldden, 143 F.2d at 920. Similarly, landlords faced the uncertain prospect of collecting on future rent payments as they became due because a debtor might well then be financially incapable of paying them. See Farmers Trust, 299 U.S. at 437, 57 S.Ct. at 294. This was especially true since courts rejected provisions in leases requiring indemnity as each installment fell due, or at the end of the term, since that obligation to indemnify ripened after adjudication of the bankruptcy. Id. at 437-38, 57 S.Ct. at 294-95.
As a result, in 1934, Congress amended the Bankruptcy Act to enable landlords to protect themselves in the event of a tenant's bankruptcy by making claims for future rents specifically provable up to a certain statutory cap, thus striking a balance between the interests of the debtor, the landlord, and other creditors. See Oldden, 143 F.2d at 920. In Farmers Trust, the Supreme Court held that these amendments preempted state law to the extent that state law did not permit an action for damages to be maintained prior to the end of the lease term. 299 U.S. at 434, 57 S.Ct. at 293. In so holding, the Supreme Court stated that the amount of a claim for the loss of a lease necessarily is the difference between the rental value of the remainder of the term and the rent reserved, both discounted to present worth. Id. However, nothing in Farmers Trust, or any cases cited since, have indicated that in making that statement the Supreme Court was holding that Congress intended to preempt state law with respect to what should be the appropriate measure of damages.[5]
There is no need here, however, to be concerned with the issue of whether Farmers Trust preempts state law on the issue of measure of damages because Florida law provides the same measure of damages as Farmers Trust. See Kanter v. Safran, 68 So.2d 553, 558-59 (Fla.1953) (stating that *631 under circumstances amounting to repudiation of a lease agreement, a lessor is not required to relet the premises for the account of the lessee in order to preserve his right to general damages for the loss of future rents, but instead, a cause of action arises in favor of the lessor for full damages, present and prospective, which is determined by the difference, reduced to present worth, between the rent fixed in the lease and the present fair rental value of the premises for the remainder of the term, together with any special damages resulting from the breach). The Court therefore need only resolve whether there are genuine issues of material fact relating to that measure of damages.[6]
In this case, neither the Rudd Trust nor the Zayre Landlord Trustee is entitled to summary judgment. First, the rent received by the Rudd Trust from the New Leases permits the rational inference that the Rudd Trust could have rented the Premises earlier at a rate less than the New Leases but higher than the reserved rent. On the other hand, the Rudd Trust's initial failure to re-rent the Premises permits a competing rational inference that the fair market value of the remainder of the lease was less than the reserved rent, because the lessor, as a prudent business person, might not have let the premises remain vacant if he or she could have recouped the rent by a timely re-rental. Since either inference would be rational, summary judgment is inappropriate.
Moreover, the record is bereft of any appraisal testimony as to the rental value of the Premises at the time the lease was rejected. Nor do the affidavits submitted by the parties indicate that there was no buyer ready, willing and able to rent the Premises at the reserved rent prior to the execution of the New Leases.[7]
Furthermore, the Court rejects the Zayre Landlord Trustee's argument that an "admission" contained in the Adams affidavit as to the fair market value of the Premises requires a rational fact-finder to conclude that the Rudd Trust suffered no damages. This admission is at best an informal admission, as distinguished from a solemn or judicial admission, and is not in any sense final or conclusive. See 4 Wigmore, Evidence §§ 1058-59. Therefore, it merely serves as an inconsistency which discredits, to a greater or lesser degree, the Rudd Trust's present claim and other evidence which may be submitted in support thereof. Id.; see also Colby v. Klune, 178 F.2d 872, 872-74 (2d Cir. 1949) (stating that statements in affidavits certainly do not suffice because their acceptance as proof depends on credibility; and absent unequivocal waiver of a trial on oral testimony credibility ought to not, "when witnesses are available, be determined by mere paper affirmations or denials that inherently lack the important element of witness' demeanor").
CONCLUSION
In sum, the action must be remanded to the Bankruptcy Court for a trial on the issue of the Rudd Trust's damages and its efforts to mitigate damages as they may bear upon that determination. For the reasons set forth above, the Memorandum Decision and Order of the Bankruptcy Court allowing *632 Claim No. 8306 is vacated. The case is remanded to the Bankruptcy Court for a trial on the issue of damages consistent with this Opinion.
It is SO ORDERED.
NOTES
[1] Chief Bankruptcy Judge, United States Bankruptcy Court, District of Maine, sitting by designation.
[2] The affidavit of Joy G. Adams, trustee of the Rudd Trust, indicates that the lease was for $10,000. See App. at 81, Affidavit of Joy G. Adams Sworn to April 22, 1992 ("Adams Aff.") ¶ 5.
[3] The Home Accents lease states these figures as the "fixed minimum rent," and provides for a "total additional rent" above these rates, consisting of annual expenses associated with the operation of the Shopping Center (including taxes, insurance, maintenance and dues), figuring to $119,568.00 per year for the first five years, and $127,657.92 per year for years six and seven. See App. at 144-145, Exh. 3, Lease Dated June 9, 1993.
[4] The substantive portion of the Bankruptcy Court's Memorandum Decision provides:
Rudd Trust, under Florida law, made reasonable attempts to mitigate damages and this Court, in applying 11 U.S.C. § 502(b)(6) caps its claim at $129,325.00. After studying the extensive briefs filed by both parties, this Court sees no reason to deviate from its reasoning in the case of Wolf Partnership v. Monheit, 173 B.R. 80 (Bankr.S.D.N.Y.1994).
App. 312, Memorandum Decision dated December 28, 1995.
The case cited by the Bankruptcy Court, Wolf Partnership, involved Maryland, not Florida law. In addition, the Memorandum Decision did not discuss Farmers Trust, which was briefed by the Zayre Landlord Trustee.
[5] Following Farmers Trust, various courts have referred to a so-called Farmers Trust presumption pursuant to which, in the event of a breach, a lessor can re-rent a leased premises for the amount of the reserved rent without loss or damage. See Palmer v. Connecticut Ry. and Lighting Co., 311 U.S. 544, 558, 61 S.Ct. 379, 384, 85 L.Ed. 336 (1941); In re W.T. Grant Co., 36 B.R. 939, 941 n. 1 (Bankr.S.D.N.Y.1984); In re D.H. Overmeyer Co., 10 C.B.C. 17, 22 (Bankr.S.D.N.Y. 1976). However, this presumption rested on the assumption that absent contrary proof, in such situations a lessor suffered only nominal damages. In this case, such contrary proof exists and the presumption is therefore inapplicable.
[6] The Court rejects the Rudd Trust's argument that damages can or should be measured by the rents received, or not received, in the period following the rejection of a lease. Such a rule would undercut the purposes of the amendment requiring the amount of the claim to be determined promptly. Moreover, the Rudd Trust's reliance on In re W.T. Grant, 36 B.R. 939, is misplaced because in that case the evidence conclusively established that the lessor had re-rented the premises in excess of the reserved rent discounted to present value, and it was clear therefore that the lessor suffered no damages.
[7] The determination of "rental value" is a market-oriented fact as to whether there exists a willing buyer, ready and able to rent a premises. This is especially true since the Supreme Court noted in Palmer v. Connecticut Ry. & Lighting Co.:
Every anticipatory breach of an obligation, and every appraisal of damage involving the present value of property involves a prediction as to what will occur in the future. Present market value of property is but the resultant of the prediction of many minds as to the usability of property and probable financial returns from that use, projected into the future as far as reasonable, intelligent men can foresee the future.
311 U.S. 544, 559, 61 S.Ct. 379, 384, 85 L.Ed. 336 (1940).
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Case: 12-60108 Document: 00512118401 Page: 1 Date Filed: 01/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 18, 2013
No. 12-60108
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL DEE QUEEN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:01-CR-133-1
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Daniel Dee Queen appeals his 24-month revocation sentence. The
Government petitioned for the revocation of his supervised release based on a
positive drug screen for cocaine and charges filed against Queen in Mississippi
for kidnapping and armed robbery. According to Queen, his sentence was
substantively unreasonable because it was greater than necessary in light of the
nature and circumstances of his case. Because he did not object to the
reasonableness of the sentence in the district court, review is for plain error. See
*
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: 12-60108 Document: 00512118401 Page: 2 Date Filed: 01/18/2013
No. 12-60108
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). He must show
a clear or obvious error (one not subject to reasonable dispute) that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). We
have the discretion to correct such an error, but only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
Queen notes that the sentence for his underlying federal offense did not
run concurrently with his state sentence for extortion, despite his understanding
that it would. He asserts that the evidence of his supervised release violations
was weak because the drug screen was unreliable and because he was allowed
to plead guilty to disorderly conduct and petit larceny. He also asserts that his
guilty plea to the state charges was not an admission of guilt. Finally, Queen
contends that a shorter revocation sentence would better serve his need for
education and vocational training.
The 24-month sentence did not exceed the statutory maximum. See
18 U.S.C. § 3583(e)(3). Queen cites no authority for the propositions that a
revocation sentence is unreasonable where the defendant’s earlier sentences
were consecutive, where he denied committing the violations, where the evidence
arguably was weak, or where he will benefit from education and training after
his release. He fails to show that the sentence was plainly erroneous,
particularly given the wide latitude district courts have to devise appropriate
revocation sentences. See Puckett, 556 U.S. at 135; United States v. Miller,
634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011).
The judgment of the district court is AFFIRMED.
2
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409 F.3d 535
UNITED STATES of America, Appellee,v.Jerome E. ROSEN, Defendant-Appellant.
Docket No. 04-3037-CR.
United States Court of Appeals, Second Circuit.
Argued: February 16, 2005.
Decided: June 6, 2005.
COPYRIGHT MATERIAL OMITTED Raymond J. Lohier, Jr., Assistant United States Attorney, New York City (David N. Kelley, United States Attorney for the Southern District of New York, Marc A. Weinstein, Harry Sandick, Assistant United States Attorneys, New York City, on the brief), for Appellee.
Maranda E. Fritz, New York City, for Defendant-Appellant.
Before: OAKES, KEARSE, and SACK, Circuit Judges.
KEARSE, Circuit Judge.
1
Defendant Jerome E. Rosen appeals from a judgment entered in the United States District Court for the Southern District of New York following his plea of guilty before Shirley Wohl Kram, Judge, convicting him of securities fraud, in violation of 15 U.S.C. §§ 78j(b), 78ff, and 18 U.S.C. § 2, and conspiracy to commit securities and wire fraud, in violation of 18 U.S.C. § 371, and sentencing him principally to 14 months' imprisonment, to be followed by a three-year term of supervised release, and ordering him to pay a $21,000 fine. On appeal, Rosen contends principally that the district court should have allowed him to withdraw his guilty plea on the ground that the plea agreement he signed erred in predicting his sentence. Rosen also contends that the court miscalculated his sentence under the Sentencing Guidelines ("Guidelines"); and in any event he requests a remand in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), for consideration of resentencing pursuant to this Court's decision in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). For the reasons that follow, we affirm the district court's refusal to allow Rosen to withdraw his plea of guilty; we remand for consideration of resentencing in accordance with Crosby.
I. BACKGROUND
2
This case arises out of a scheme devised in 1997 by Michael Mitton, a principal of H & R Enterprises, Inc. ("H & R"), whose shares were publicly traded on the National Association of Securities Dealers Automated Quotation System Over-The-Counter market ("NASDAQ OTC Market"), and David Scott Heredia, president of a consulting firm, to manipulate the price of H & R shares. More than 3.7 million shares of H & R stock were issued to Mitton and his associates (collectively "Mitton") at prices between $.01 and $.50 per share, and shares were given to Heredia; the shares were placed in brokerage accounts in the names of companies owned by Heredia and Mitton. Heredia recruited brokers to create artificial trading volume and price increases so that members of the conspiracy could sell their shares at inflated prices.
3
One of the recruited brokers was Rosen, who was employed by J. Alexander Securities, Inc. ("J.Alexander"), a registered securities broker-dealer that was a market-maker in H & R securities. In August and September 1997, Rosen was secretly given some 250,000 H & R shares at no cost, which he stashed in accounts under the name "OTCBB Holdings Limited" in Canada and the Cayman Islands. Rosen agreed to buy H & R stock from accounts controlled by Heredia and Mitton and sell it to other accounts controlled by Heredia and Mitton, at prices dictated by Heredia. Rosen knew that Heredia and Mitton were both the buyers and the sellers of the same blocks of stock and that these transactions thus resulted in no change in the shares' beneficial ownership. The coordinated circular sequence of transactions in which Rosen and other recruited brokers participated was a "daisy chain" that created the appearance of an active market for H & R stock. Mitton also caused H & R to issue a series of false and misleading press releases that further inflated the price of H & R stock. As a result, between September 19, 1997, and September 24, 1997, H & R's share price rose from $2 to more than $6.75. Rosen sold shares he had received, at no cost, at the inflated prices.
4
The daisy chain came undone when, on September 24, 1997, two brokerage houses refused to accept delivery of or pay for some 5 million H & R shares. With the unraveling of the daisy chain, the share price of H & R stock dropped to less than $2 in two days. In September 2002, Rosen and others were indicted for their actions in manipulating the H & R shares, charged with conspiring to commit securities and wire fraud (Count One) and engaging in fraudulent securities transactions (Count Two).
5
A. Rosen's Plea Agreement and Plea Allocution
6
On January 21, 2004, Rosen and the government entered into a plea agreement ("Plea Agreement" or "Agreement"), in which the government agreed to forgo any further prosecution of Rosen (except for criminal tax violations) with respect to the securities fraud conspiracy described above, in consideration for Rosen's agreeing to plead guilty to both counts of the indictment. The Agreement described the counts and stated, inter alia, that "Count One of the Indictment carries a maximum sentence of five years' imprisonment" (Plea Agreement at 1) and that "Count Two of the Indictment carries a maximum sentence of ten years' imprisonment" (id.), for a "combined maximum term of imprisonment for Counts One and Two [of] 15 years" (id. at 2). As to Rosen's likely sentence, the parties stipulated that under the November 5, 2003 version of the Guidelines ("2003 Guidelines"), which would be in effect at the time of sentencing, Rosen's base offense level was 6, and that with a four-step upward adjustment pursuant to 2003 Guidelines § 2B1.1(b)(1)(C) for a loss amount between $10,000 and $30,000, and a two-step downward adjustment pursuant to § 3E1.1(a) for acceptance of responsibility, Rosen's total offense level was 8. (See Plea Agreement at 2-3.) The Agreement stated that "[b]ased upon the information now available to th[e United States Attorney's] Office (including representations by the defense), the defendant has zero criminal history points. In accordance with the above, the defendant's Criminal History Category is I." (Id. at 3.) "Based upon the[se] calculations," the parties stipulated that Rosen's Guidelines imprisonment range would be 0-6 months. (Id.)
7
The Plea Agreement stated that the calculations stipulated to in the Agreement were not binding on the district court and that calculations by the court resulting in a different sentence would not entitle Rosen to withdraw his plea:
8
It is understood that ... neither the Probation Department nor the Court is bound by the above stipulations, either as to questions of fact or as to the determination of the proper Sentencing Guidelines to apply to the facts....
9
It is understood that the sentence to be imposed upon the defendant is determined solely by the Court. Th[e United States Attorney's] Office cannot, and does not, make any promise or representation as to what sentence the defendant will receive. Moreover, it is understood that the defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be the result of calculations different from those stipulated to herein.
10
(Plea Agreement at 4 (emphases added).)
11
Finally, the parties stipulated that "[n]o additional understandings, promises, or conditions have been entered into other than those set forth in this Agreement." (Plea Agreement at 5-6.) The Agreement stated that "[t]he defendant hereby acknowledges that he has accepted this plea Agreement and decided to plead guilty because he is in fact guilty." (Id. at 5.)
12
On January 21, 2004, after the Plea Agreement was signed, Rosen entered a plea of guilty to both counts of the indictment. Before accepting his plea, the district court, in accordance with Fed.R.Crim.P. 11, questioned Rosen to determine, inter alia, that he was competent to plead, had no dissatisfaction with his attorney, understood the constitutional rights he would be giving up if he pleaded guilty, and understood the charges and the maximum sentences associated with each. (See Plea Transcript, January 21, 2004 ("Plea Tr."), at 2-10.) As to the charges against Rosen, the colloquy included the following:
13
THE COURT: .... Now, I want to tell you the elements of the counts to which you are pleading guilty.
14
Count One, you desire to plead guilty to the charge of conspiracy to commit securities fraud and wire fraud.... [T]his is what the government must prove beyond a reasonable doubt. 1, that two or more persons agreed or conspired to commit an offense, in this case to violate the laws of the United States[] that make it a crime to commit securities fraud or wire fraud, in violation of 18 U.S.C. Section 371; 2, that you knew of that agreement or conspiracy; 3, that you intended to participate in the conspiracy; and, 4, that you or another member of the conspiracy acted to effect an object of the conspiracy during the life of the conspiracy.
15
....
16
THE COURT: Now as to Count Two, to which you are pleading guilty to a charge of securities fraud, the government must establish beyond a reasonable doubt the following: 1, that in connection with the purchase or sale of the security, you did any one of the following: A, employed a device, scheme or artifice to defraud or, B, made an untrue statement of a material fact, or omitted to state a material fact that made what was said under the circumstances misleading, or, C, engage[d] in an act, practice or course of business that operated or would operate as a fraud or a deceit upon a purchaser or seller; 2, that you acted willfully and knowingly and with the intent to defraud; 3, that you used, or caused to be used, any means or instruments of transportation or communication in interstate commerce or the mails in furtherance of this fraudulent conduct.
17
(Plea Tr. 7-8 (emphases added).) Rosen stated that he had discussed the elements of each count with his attorney and did not wish to discuss them with her any further. (See Plea Tr. 7, 8.) The court continued:
18
THE COURT: You understand each charge in that Indictment?
19
THE DEFENDANT: Yes, I do.
20
THE COURT: Now that I have told you your rights, do you still want to plead guilty?
21
THE DEFENDANT: Yes.
22
THE COURT: All right. I want you to understand, also, Count One of the Indictment carries a maximum sentence of five years imprisonment....
23
Count Two of the Indictment carries a maximum sentence of ten years imprisonment....
24
The combined maximum term of imprisonment for Count[s] One and Two is 15 years.
25
....
26
Do you understand that?
27
THE DEFENDANT: Yes.
28
(Plea Tr. 8-10 (emphases added).) Exploring further with respect to Rosen's understanding of his possible sentence, the court asked as follows:
29
THE COURT: .... I want to ask you further, has anyone made any promise other than what's in this agreement to induce you to plead guilty?
30
THE DEFENDANT: No.
31
THE COURT: Has anyone made any prediction, prophecy, or promise to you as to what your sentence will be?
32
THE DEFENDANT: No.
33
THE COURT: Do you understand that any recommendation of sentence agreed to by you and the prosecution or any agreement of [sic] the prosecution will not oppose your attorney's requested sentence or anything in that plea agreement or anyone's predictions are not binding on the Court and that you might on the basis of your guilty plea receive up to the maximum sentence that I have described to you earlier?
34
THE DEFENDANT: Yeah, I do.
35
(Plea Tr. 11-12 (emphases added); see also id. at 5-6 (determining that Rosen understood that the court "retain[s] the discretion ... to impose" a sentence "up to the maximum permitted by law").)
36
The court then asked Rosen to describe in his own words what he had done to violate the law. He responded as follows:
37
THE DEFENDANT: Between September 22nd and September 24, 1997, I participated in trading designed to inflate the price of H & R stock and sold a portion of stock received at no cost at inflated price—at an inflated price.
38
(Plea Tr. 12.) The court allowed Assistant United States Attorney ("AUSA") Marc Weinstein to pose additional questions to flesh out Rosen's offense conduct:
39
MR. WEINSTEIN: ....
40
With respect to that period of time when Mr. Rosen participated in that scheme, did he do so with the agreement of others, with respect to the conspiracy count?
41
THE DEFENDANT: Yes, I did.
42
(Plea Tr. 12.)
43
MR. WEINSTEIN: ... [W]ith respect to the shares that Mr. Rosen sold, did he receive those shares for free and thereby was able to sell them from his own personal accounts into the market at the inflated prices?
44
THE DEFENDANT: A portion of the stock received at that time had no cost.
45
THE COURT: And were you able to sell them at inflated prices?
46
THE DEFENDANT: Yes.
47
(Plea Tr. 12-13.)
48
The AUSA summarized the government's evidence against Rosen as follows:
49
[T]he government would call witnesses, to testify with respect to the nature of the trading scheme, who were involved in the trading scheme itself, as well as an analysis of the NASD trading records showing the actual trading that was done at the behest of Mr. Rosen or others in the scheme, as well as account records showing, first of all, the free shares received by Mr. Rosen and his selling into the market at the inflated prices.
50
(Plea Tr. 13-14.) The defense indicated that it did not dispute that summary. The court accepted Rosen's plea of guilty to both counts of the indictment.
51
B. The PSR and Rosen's Motion To Withdraw His Plea
52
Following the entry of Rosen's plea of guilty, the Probation Department prepared (and amended) a presentence report ("PSR") whose determinations differed from the stipulations in the Plea Agreement in three ways. First, the 2003 version of the Guidelines could not be applied without causing an ex post facto problem, because the 2003 version, unlike the November 1995 version that was in effect at the time of Rosen's offenses, contained a provision (§ 2B1.1(b)(14)(A)) requiring a four-step increase in offense level (which was not reflected in the Plea Agreement) for a defendant who was a registered broker. The PSR thus determined that the November 1995 version of the Guidelines ("1995 Guidelines") should be applied.
53
Second, the PSR determined that Rosen's total offense level should be 10, rather than 8, because, in addition to the base offense level and adjustments to which the parties had stipulated, there should be a two-step offense-level enhancement pursuant to 1995 Guidelines § 2F1.1(b)(2)(A) because the offenses required "more than minimal planning." Third, contrary to "the information ... available to th[e United States Attorney's] Office (including representations by the defense) [that Rosen] ha[d] zero criminal history points" (Plea Agreement at 3), the PSR noted that Rosen had two prior convictions, placing him in criminal history category II, rather than I.
54
Given an offense level of 10 and a criminal history category of II, the 1995 Guidelines-recommended range of imprisonment was 8-14 months.
55
Rosen objected to the PSR, principally on the ground that its calculations resulted in a Guidelines range that would require imprisonment. He asked the district court for a ruling, or at least an indication, that the court would instead sentence him in accordance with the range of 0-6 months anticipated by the parties in the Plea Agreement. (See Hearing Transcript, April 14, 2004 ("Hrg.Tr."), at 5-7.) The court declined to commit itself. (See id. at 7-8.)
56
Rosen thereafter moved to withdraw his plea or, in the alternative, to have the court "impose a non-incarceratory sentence." (Rosen Memorandum of Law in Support of Motion To Withdraw Plea or, in the Alternative, Sentencing Submission, dated May 14, 2004 ("Rosen Withdrawal Motion Memorandum"), at 1.) Portraying Rosen as a participant who was "irrelevant to the trading activity of H & R stock" and who "was one of [the scheme's] victims" (id. at 3), the motion indicated that Rosen had entered into the Plea Agreement and pleaded guilty based on his belief that there was a "possibility and likelihood of no period of incarceration" (id. at 6), and that the parties'"mutual mistake" (id.) as to the Guidelines range created "a substantial issue concerning the voluntariness and validity of the plea" (id.). Further, he argued,
57
[s]etting aside principles of contract law, the substantial disparity between the contents of the agreement and the position of the Probation Department also raises clear issues concerning the voluntariness of the plea. As this Court is well aware, Mr. Rosen has taken the position from the outset that he did not knowingly and deliberately participate in the manipulation of the stock of H & R. As the trial date approached, the government offered to Mr. Rosen a plea agreement that would place him in a guideline range of 0 to 6. Mr. Rosen was also advised by counsel that, in the context of a negotiated plea and where the amount at issue was stipulated to be approximately $20,000, the courts generally sentence individuals to the lower end of the applicable guideline range. Effectively, therefore, Mr. Rosen was given the opportunity to enter a plea that created a strong likelihood of a non-incarceratory sentence....
58
....
59
Mr. Rosen's plea was unquestionably predicated on his understanding that experienced attorneys, both the Assistant United States Attorney and his own counsel, had properly applied the Sentencing Guidelines and that the offered plea would permit him to resolve the case with a substantial likelihood of no incarceration.
60
To the extent that Mr. Rosen's understanding was wrong, that all attorneys involved in this matter had been operating under a mistake as to the application of the guidelines, and that this Court determines that his plea actually requires a substantial period of incarceration, Mr. Rosen could not and did not voluntarily accept the terms of the plea.
61
(Rosen Withdrawal Motion Memorandum at 7-8 (emphasis in original); see also id. at 9 ("Had Mr. Rosen been confronted with a plea agreement that required that he serve a substantial period of time in prison, he would certainly have rejected it.").)
62
The motion also suggested that Rosen was actually innocent of any crime. In addition to stating that "Mr. Rosen has taken the position from the outset that he did not knowingly and deliberately participate in the manipulation of the stock of H & R" (id. at 7), the motion stated that
63
Mr. Rosen's actual conduct implicates a host of issues regarding whether he engaged in trading activity which is criminal. Mr. Rosen stated, at the time of the allocution, the extent of his own conduct: he did engage in trading which, we now know, facilitated the upward manipulation in the price of the stock. There remains now, as there has been throughout this prosecution, a significant issue as to whether those facts actually constitute the commission of a crime.
64
(Id. at 8.)
C. The Decision of the District Court
65
The district court denied the motion to withdraw the plea. At the sentencing hearing, noting that a written opinion would follow, the court stated that a motion to withdraw the guilty plea can be granted "only if the defendant has raised a significant question about the voluntariness of the original plea, and no such question exists here. I went through the transcript of the plea allocution and the submissions of both parties, and the only reasonable conclusion to draw is that the defendant's plea was knowing and voluntary." (Sentencing Transcript, June 2, 2004 ("S.Tr."), at 2.)
66
In its Opinion, see United States v. Rosen, No. 02 CR. 1246, 2004 WL 1234037 (June 2, 2004) ("District Court Opinion"), the district court noted that the Rules of Criminal Procedure "provide[] that a defendant who has pled guilty may withdraw his plea before he is sentenced if he shows `a fair and just reason for requesting the withdrawal,'" District Court Opinion, 2004 WL 1234037, at *1 (quoting Fed.R.Crim.P. 11(d)(2)(B)), but "that a `defendant has no absolute right'" to such relief, District Court Opinion, 2004 WL 1234037, at *1 (quoting United States v. Williams, 23 F.3d 629, 634 (2d Cir.), cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 547 (1994)). The court stated that
67
[i]n determining whether there is a "fair and just reason" to grant a motion to withdraw a guilty plea prior to sentencing, a district court should consider: (1) whether the defendant has asserted his legal innocence; (2) the amount of time that has elapsed between the plea and the motion; and (3) whether the Government would be prejudiced by a withdrawal of the plea. See Fed. R. Cr. P. 32(d), Advisory Committee Notes (1983 Amendment); United States v. Torres, 129 F.3d 710, 715 (2d Cir.1997). In order to withdraw a guilty plea, a defendant "must raise a significant question about the voluntariness of the original plea." Torres, 129 F.3d at 715. These stringent standards reflect a recognition that "[s]ociety has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas `undermines confidence in the integrity of our [judicial] procedures, ... increas[es] the volume of judicial work, [and] delays and impairs the orderly administration of justice.'" United States v. Sweeney, 878 F.2d 68, 70 (2d Cir.1989) (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)[)].
68
District Court Opinion, 2004 WL 1234037, at *1. The court reasoned that the "fair and just reason" standard does "not ... allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal" simply because "he believes that he made a bad choice in pleading guilty." Id. at *3 (internal quotation marks omitted). Given the societal interest in the finality of guilty pleas, "`the fact that a defendant has a change of heart prompted by his reevaluation of ... the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea.'" Id. at *2 (quoting United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir.1992)).
69
The district court found that Rosen had failed to present any fair and just reason to permit withdrawal of his plea and that the factors to be considered by the court weighed against him. For example, the court found that Rosen had not made any showing of innocence; rather, he had stated in the Plea Agreement "`that he has accepted this plea Agreement and decided to plead guilty because he is in fact guilty.'" District Court Opinion, 2004 WL 1234037, at *2 (quoting Plea Agreement at 5). The court further found that the motion had not been made promptly; rather, Rosen had waited some four months to move. See District Court Opinion, 2004 WL 1234037, at *3. Finally, the court found that Rosen had not raised any significant question about the voluntariness of his plea. He had stated in his plea allocution that no one had threatened him or attempted to coerce him to plead guilty, and that no one had made any promises or predictions as to what his sentence would be. See id. Further, the court noted that the Plea Agreement itself stated explicitly that the government "`does not[] make any promise or representation as to what sentence the defendant will receive,'" and that "`it is understood that the defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be the result of calculations different from those stipulated to'" in the Plea Agreement. Id. at *2 (quoting Plea Agreement at 4 (emphasis in District Court Opinion)).
70
The court concluded that Rosen's agreement to these provisions, along with his statements under oath at his plea allocution, severely undermined his assertion that he would not have pleaded guilty if he had known that he would be required to serve a substantial period of time in prison, see District Court Opinion, 2004 WL 1234037, at *2, and made his claim that his plea was involuntary "entirely unpersuasive," id. The court concluded that, "after a thorough review of both the text of the plea agreement and the transcript of the plea allocution, the only reasonable conclusion to draw is that the defendant's plea was knowing and voluntary." Id. at *3.
71
Rejecting Rosen's challenges to the Guidelines calculations in the PSR, see Part III below, the district court sentenced Rosen principally to 14 months' imprisonment, to be followed by a three-year term of supervised release, and ordered him to pay a $21,000 fine. This appeal followed; this Court granted Rosen's motion for bail pending resolution of the appeal.
72
II. DENIAL OF THE MOTION TO WITHDRAW THE PLEA
73
Rosen challenges the district court's denial of his motion to withdraw his plea, contending principally (A) that the district court applied the wrong legal standard, (B) that the Plea Agreement is unenforceable because of mutual mistake, and (C) that his plea allocution was insufficient as a matter of law. None of these contentions has merit.
A. The Standard Applied to Rosen's Motion
74
Rosen contends that the district court, in stating that it could grant a motion to withdraw a plea of guilty "`only if the defendant has raised a significant question about the voluntariness of the original plea,' ... misstated the legal standard that governs a motion to withdraw a plea." (Rosen brief on appeal at 10 (quoting S.Tr. 2).) He contends that the court thereby indicated that a showing of involuntariness is the only way to make out a fair and just reason under Rule 11, whereas under the proper standard, "the court will permit the defendant to withdraw his plea `if the defendant shows any fair and just reason' for the withdrawal." (Rosen brief on appeal at 10 (quoting Fed.R.Crim.P. 32(e) (2000)) (emphasis in brief).) For the reasons that follow, we disagree.
75
Criminal Rule 11(d)(2)(B) provides that a "defendant may withdraw a plea of guilty ... after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B) (eff.Dec. 1, 2002). The fair-and-just-reason standard was first articulated in the Rules in 1983, in subpart (d) of Rule 32, see Fed.R.Crim.P. 32(d) (1983) ("If a motion for withdrawal of a plea of guilty ... is made before sentence is imposed ..., the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason."). This incorporated the dictum in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), that a court has "discretion" to allow a plea of guilty to be withdrawn "if for any reason the granting" of the withdrawal motion "seems fair and just," id. at 224, 47 S.Ct. 582, a principle that the federal courts had thereafter "consistently applied to presentence motions." Fed.R.Crim.P. 32 Advisory Committee Note (1983). In 1994, the substance of the "fair and just reason" provision was moved, with stylistic differences, to subpart (e) of Rule 32. See Fed.R.Crim.P. 32(e) (2000) ("[i]f a motion to withdraw a plea of guilty... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason"). In 2002, the provision was again relocated, this time to Rule 11 in order "to more clearly spell out in Rule 11(d) and 11(e) the ability of the defendant to withdraw a plea," Fed.R.Crim.P. 11 Advisory Committee Note (2002). As with the prior revisions, these changes "[we]re intended to be stylistic only," Fed.R.Crim.P. 32 Advisory Committee Note (2002). Thus, cases interpreting the former versions of Rule 32 are authority for the proper interpretation of the current Rule 11(d)(2)(B).
76
With respect to each of those versions of the Rule, we have made clear that although the Rule provides that a defendant may move to withdraw a guilty plea upon a showing of any "fair and just reason," it is basic that "[a] defendant has no absolute right to withdraw his plea of guilty." United States v. Williams, 23 F.3d 629, 634 (2d Cir.1994) (construing Rule 32(d) (1993)), cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 547 (1994); see, e.g., United States v. Gonzalez, 970 F.2d 1095, 1099-1100 (2d Cir.1992) ("Gonzalez") (construing Rule 32(d) (1991)); United States v. Torres, 129 F.3d 710, 715 (2d Cir.1997) ("Torres") (construing Rule 32(e) (1996)); United States v. Maher, 108 F.3d 1513, 1529 (2d Cir.1997) ("Maher") (same); United States v. Karro, 257 F.3d 112, 117 (2d Cir.2001) (construing Rule 32(e) (2000)); United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir.2004) ("Schmidt") (construing Rule 11(d)(2)(B) (2002)). Thus, contrary to Rosen's assertion that if the defendant shows any fair and just reason for the withdrawal "the court will permit the defendant to withdraw his plea" (Rosen brief on appeal at 10 (emphasis added)), the decision whether to grant the motion to withdraw is committed to the district court's discretion and will be reversed only for abuse of discretion, see, e.g., Schmidt, 373 F.3d at 102; Torres, 129 F.3d at 715; Maher, 108 F.3d at 1529; Gonzalez, 970 F.2d at 1100.
77
The court has that discretion where the moving defendant satisfies the court that there are valid reasons for withdrawal of the plea and the court concludes that those reasons outweigh any prejudice to the government and the strong societal interest in the finality of guilty pleas. In Gonzalez, for example, we stated as follows:
78
Pursuant to Fed.R.Crim.P. 32(d) [(1991)], a district court may permit withdrawal of a guilty plea prior to sentencing "upon a showing by the defendant of any fair and just reason." Although this standard implies that motions to withdraw prior to sentence should be liberally granted, ... a defendant who seeks to withdraw his plea "bears `the burden of satisfying the trial judge that there are valid grounds for withdrawal, taking into account any prejudice to the government.'".... The Government is not required to show prejudice when opposing a defendant's motion to withdraw a guilty plea where the defendant has shown no sufficient grounds for permitting withdrawal; however, the presence or absence of such prejudice may be considered by the district court in exercising its discretion.... The fact that a defendant has a change of heart prompted by his reevaluation of either the Government's case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea.
79
970 F.2d at 1099-1100. In Maher, we stated essentially the same criteria, pointing out that
80
[a] defendant has no automatic entitlement to have such a motion granted, for [s]ociety has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of our judicial procedures, but also increases the volume of judicial work, and delays and impairs the orderly administration of justice.
81
108 F.3d at 1529 (internal quotation marks omitted). Most recently, in Schmidt, we stated the criteria as follows:
82
In general, to determine whether the defendant has shown a "fair and just reason" to justify withdrawal, a district court considers, inter alia: (1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of the plea. [United States v.] Couto, 311 F.3d [179,] 185 [(2d Cir.2002)]. Courts may also look to whether the defendant has "raise[d] a significant question about the voluntariness of the original plea." United States v. Torres, 129 F.3d 710, 715 (2d Cir.1997). The standard for withdrawing a guilty plea is stringent ....
83
Schmidt, 373 F.3d at 102-03.
84
In the present case, the district court in its written opinion, as described in Part I.C. above, set out and applied the above standard. After stating the standard, see District Court Opinion, 2004 WL 1234037, at *1, the court ruled against Rosen in a section entitled "The Defendant Has Failed To Present A Fair And Just Reason To Permit Withdrawal Of His Plea," id. The court found that
85
none of the factors that a district court should consider in deciding whether there is a "fair and just reason" to grant a motion to withdraw a guilty plea—(1) whether the defendant has asserted his legal innocence; (2) the amount of time that has elapsed between the plea and the motion; and (3) whether the Government would be prejudiced by a withdrawal of the plea—weigh in favor of the defendant.
86
Id. at *2. The court found that Rosen "has not asserted that he is innocent; in fact, just the opposite. In the plea agreement signed by the defendant, he acknowledged `that he has accepted this plea Agreement and decided to plead guilty because he is in fact guilty.'" Id. (quoting Plea Agreement at 5). The court also found that Rosen had "waited approximately four months to attempt to withdraw his plea. Such a strategic maneuver is plainly contrary to the rationale for plea withdrawal," which is "to permit [a defendant] to undo a plea that was unknowingly made at the time it was entered," "not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty." Id. at *3 (internal quotation marks omitted). Having found that the claim-of-innocence and the elapsed-time criteria were not met by Rosen, the court did not reach, and was not required to reach, the question of whether withdrawal of the plea would cause the government prejudice.
87
Finally, the district court proceeded to find that Rosen's plea was voluntary, rejecting his contention that it was involuntary because he had pleaded guilty only based on his understanding that he would likely be sentenced to no prison time. The court noted, inter alia, Rosen's statement in the Plea Agreement that he was pleading guilty because he was in fact guilty; and Rosen's statements under oath during the allocution that his plea was not the result of any promises, other than those stated in the Plea Agreement, or of any threats or coercion, and that he had received no prediction or prophecy as to what his sentence would be. See District Court Opinion, 2004 WL 1234037, at *2-3.
88
The particular statement on which Rosen relies for his contention that the district court failed to apply the proper legal standard—i.e., that "[t]he circumstances in which a court should grant a defendant's motion to withdraw a plea are extremely narrow," and that "[i]n essence, withdrawal is only permitted when a defendant has raised a `significant question about the voluntariness of the original plea.' See Torres, 129 F.3d at 715," District Court Opinion, 2004 WL 1234037, at *3—was somewhat ambiguous, in that it was general in form and could be interpreted as purporting to define the universe of permissible bases for withdrawal. However, there plainly are circumstances in which a court will find it fair and just to relieve the defendant of a plea despite its voluntariness. For example, where a plea was entered voluntarily but the government thereafter materially breached the plea agreement, we have ruled that the defendant should be allowed to withdraw his plea. See United States v. Palladino, 347 F.3d 29, 34-35 (2d Cir.2003). Despite the generality of the district court statement on which Rosen focuses, we cannot agree with Rosen's contention that the court ruled that involuntariness is the only way in which a defendant can show a fair and just reason for plea withdrawal under Rule 11, given the district court's explicit exploration of, inter alia, the criteria set forth in the precedents discussed above as to assertion of innocence and timeliness of motion and, as discussed in Part II.B. below, Rosen's contract-based argument for withdrawal.
89
Reading the district court's opinion as a whole, we interpret the court's statement that a plea withdrawal motion should not be granted unless the defendant has shown a significant question of voluntariness, citing Torres, to mean simply that such a motion cannot be granted without such a showing where an alleged basis of the motion is involuntariness. See generally Torres, 129 F.3d at 714-15 (a significant question as to voluntariness was required, the defendants having moved to withdraw their pleas on the ground that they had been pressured or forced to plead guilty). Where the motion argues that the plea was not voluntary, a fortiori the court must focus on voluntariness. Here, Rosen's motion to withdraw explicitly sought to raise "a substantial issue concerning the voluntariness and validity of the plea." (Rosen Withdrawal Motion Memorandum at 6; see also id. at 7 (purporting to "raise[] clear issues concerning the voluntariness of the plea").) Rosen stated in his motion that he had believed there was a substantial possibility of a sentence imposing no period of incarceration, and that "[t]o the extent that [his] understanding was wrong" and he would be required to serve a prison term, he "could not and did not voluntarily accept the terms of the plea." (Id. at 7-8.) The district court's discussion of voluntariness simply addressed a stated basis of Rosen's motion. We conclude that the district court applied the proper legal standard.
90
B. The "Mutual Mistake" Challenge to Enforceability
91
Rosen contends that "the existence of a mutual mistake as to the single most critical component of the plea agreement[—]the likelihood of a non-incarceratory" sentence—made the Plea Agreement unenforceable and hence required the court to allow him to withdraw his plea. (Rosen brief on appeal at 13.) The district court rejected the contention that, under "principles of contract law," the parties' mistaken understandings as to the applicable Guidelines range "render the agreement void or voidable," ruling that Rosen "is incorrect in asserting that contract law provides a basis for plea withdrawal here." District Court Opinion, 2004 WL 1234037, at *1. We agree.
92
In entering into the Plea Agreement, the parties indeed stipulated to their understandings as to particular Guidelines calculations and adjustments, as well as to the imprisonment range that would thereby result. But they also expressly took into account the possibility that those understandings might not prevail. As set forth in Part I.A. above, the parties stated in the Plea Agreement that "[i]t is understood that ... neither the Probation Department nor the Court is bound by the above stipulations, either as to questions of fact or as to the determination of the proper Sentencing Guidelines to apply to the facts" (Plea Agreement at 4 (emphasis added)). They stated in the Agreement that "[i]t is understood that the sentence to be imposed upon the defendant is determined solely by the Court." (Id.) And they stated in the Agreement that "it is understood that the defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be the result of calculations different from those stipulated to herein." (Id. (emphasis added).) An agreement that has made such express provisions with respect to the possibility of a mistaken prediction as to sentencing calculations is not a proper candidate date for rescission on the ground of mutual mistake when that possibility has come to fruition.
C. The Sufficiency of the Plea Allocution
93
Finally, Rosen challenges the sufficiency of his plea allocution, contending that it is questionable whether the conduct to which he admitted constitutes a crime; that he "could not and did not state that he devised or even knew at the time of th[e fraudulent] scheme or `design'"; that "the conduct [he] described ... does not establish a factual basis for his guilty plea"; and that "the plea itself" was therefore "defective under Rule 11(f) [sic]." (Rosen brief on appeal at 15.) This contention borders on the frivolous.
94
Criminal Rule 11(b)(3), whose substantive predecessor was Fed.R.Crim.P. 11(f) until December 1, 2002, provides that "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." Fed.R.Crim.P. 11(b)(3). Here, before accepting Rosen's plea of guilty, the district court plainly made such a determination. The court asked Rosen to describe in his own words what he had done to violate the law. Rosen responded: "Between September 22nd and September 24, 1997, I participated in trading designed to inflate the price of H & R stock and sold a portion of stock received at no cost at ... an inflated price." (Plea Tr. 12 (emphasis added).) He then further acknowledged that with respect to that period, he had participated in that scheme in agreement with others (id.) and that he had "receive[d]... shares for free and thereby was able to sell them from his own personal accounts into the market at the inflated prices" (id. at 12-13). As detailed in Part I.A. above, the court had described all of the elements of the offenses charged in each count of the indictment. For Rosen to be guilty on the conspiracy count, the court stated, inter alia, that the government would have to prove that there were "two or more persons [who] agreed or conspired ... to commit securities fraud or wire fraud, in violation of 18 U.S.C. section 371," and that Rosen "knew of that agreement or conspiracy" and "intended to participate in the conspiracy." (Plea Tr. 7 (emphases added).) For Rosen to be guilty on the substantive count of fraudulent trading, the court stated, inter alia, that the government would have to prove that Rosen had engaged in one of a number of different types of fraudulent activity, which the court proceeded to describe, and that Rosen "acted willfully and knowingly and with the intent to defraud." (Plea Tr. 8 (emphases added).) In response to these descriptions, Rosen told the court that he had adequately discussed the elements of the offenses with his attorney, that he understood the charges, and that he still wanted to plead guilty. (See Plea Tr. 7-9.)
95
A guilty plea is an unconditional admission of guilt, see, e.g., Maher, 108 F.3d at 1528, and constitutes "an admission of all the elements of a formal criminal charge," McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). As to those elements the plea is "as conclusive as a jury verdict." LaMagna v. United States, 646 F.2d 775, 778 (2d Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981); see, e.g., United States v. Berndt, 127 F.3d 251, 258 (2d Cir.1997). Thus, despite the post-plea self-serving statements that Rosen did not know of the overall design or scheme (see, e.g., Rosen brief on appeal at 9, 15), that he "ha[d] taken the position from the outset that he did not knowingly and deliberately participate in the manipulation of the stock of H & R" (Rosen Withdrawal Motion Memorandum at 7), and that he had no intent to defraud (see, e.g., Rosen reply brief on appeal at 16), the record of Rosen's allocution and plea of guilty conclusively established that he knew all of the elements of the offenses with which he was charged, knew of the securities fraud conspiracy, intended to participate in it, and engaged in manipulative trading knowingly, intentionally, and with intent to defraud.
96
We see no error in the district court's denial of Rosen's motion to withdraw his plea of guilty.
III. SENTENCING DECISIONS
97
In calculating Rosen's sentence under the 1995 Guidelines, the district court increased his offense level (a) by four steps as prescribed by § 2F1.1(b)(1)(E) for a loss amount between $20,000 and $40,000, and (b) by two steps pursuant to § 2F1.1(b)(2)(A) because the offenses required more than minimal planning. Rosen challenged those enhancements in the district court and pursues those challenges here. (He does not on this appeal challenge the increase of his criminal history category from I to II; with a total offense level of 8, as agreed in the Plea Agreement and a criminal history category of II, Rosen's Guidelines-prescribed prison term would have been 4-10 months.) On appeal, Rosen has added a challenge to the constitutionality of the Guidelines, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The last contention has merit, given the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621.
98
Rosen's sentence was imposed on June 2, 2004. Obviously, the sentencing judge did not sentence with awareness of Booker, which was decided in January 2005, or even of its harbinger Blakely, which was decided on June 24, 2004. Since Rosen's case is now pending on direct review, Booker is applicable. However, since we see no indication in the record that Rosen challenged the constitutionality of the Guidelines in the district court, that challenge is reviewable only for plain error. Accordingly, under this Court's decision in United States v. Crosby, 397 F.3d 103, we will remand this matter to the district court to determine whether, had it known that the Guidelines were to be consulted on an advisory basis rather than applied mandatorily, Rosen would have received the same sentence.
99
In light of the Booker requirement that the sentencing court "consider" the Guidelines, see Crosby, 397 F.3d at 111 ("sentencing judges remain under a ... continuing duty to `consider' the [Guidelines], along with the other factors listed in [18 U.S.C. §] 3553(a)"), we briefly address Rosen's appellate challenges to the district court's application of the loss and more-than-minimal-planning guidelines.
A. Loss Amount
100
The 1995 Guidelines required that the offense level of a defendant convicted of a fraud offense be increased by four steps if the "loss" caused by the offense—defined in the 1995 Guidelines as "the value of the money, property, or services unlawfully taken," § 2F1.1 Application Note 7; see also § 2B1.1 Application Note 2—was more than $20,000 but not more than $40,000, see 1995 Guidelines § 2F1.1(b)(1)(E). That "value" need not be calculated with precision, see 1995 Guidelines § 2F1.1 Application Note 8; United States v. Bryant, 128 F.3d 74, 75 (2d Cir.1997), and the court may instead measure loss by reference to the defendant's gains, although using gain as a basis "ordinarily will underestimate the loss," 1995 Guidelines § 2F1.1 Application Note 8. The loss estimate may include amounts that have been repaid to victims after discovery of the crime. See, e.g., United States v. Matt, 116 F.3d 971, 975 (2d Cir.1997). Although the parties' "stipulation [as to loss amount] does not fix that amount as a matter of law" or bind the sentencing court, the court may properly rely on such a stipulation in finding facts relevant to sentencing. United States v. Granik, 386 F.3d 404, 411-12 (2d Cir.2004).
101
In the present case, several of these principles were implicated. Toward the end of the fraudulent trading scheme, Rosen, on instructions from Heredia, caused his employer J. Alexander to buy some 600,000 shares of H & R stock at share prices at approximately $5.625, and to resell those shares to a brokerage firm that was involved in the scheme. However, when the latter firm refused to accept delivery of or pay for these (and other) shares, the scheme came to an abrupt halt; the share price plummeted to less than $2; and J. Alexander lost more than $1 million. Under the terms of his employment contract, Rosen was required to reimburse J. Alexander for any losses incurred in his trading activity. Rosen met that obligation by working for J. Alexander for a period of some six months without compensation, until he had generated trading profits that equaled the amount of the J. Alexander loss.
102
In the plea negotiations, the government agreed not to seek a loss enhancement based on the more-than $1 million J. Alexander loss. Instead, having found that one or more of the accounts in which Rosen stashed his free shares of H & R had gains totaling nearly $22,000, the government agreed to accept that total as the Guidelines loss amount. Thus, in the Plea Agreement, the parties stipulated that "four levels are added because the loss amount was more than $10,000, but less than $30,000." (Plea Agreement at 3 (reflecting the loss range for the four-step enhancement specified in the 2003 Guidelines).) The PSR concurred in the government's position; the nearly $22,000 on which the parties focused was within the range for a four-step offense-level increase under both the 1995 and 2003 Guidelines. In fixing the loss amount for Rosen's sentence, the district court adopted the factual findings in the PSR (see S.Tr. 8, 15) and accepted the parties' loss stipulation (see id. at 4 ("You agreed to the amount in the plea agreement."); id. at 6-8).
103
In the district court, Rosen had argued that it was inappropriate to attribute any loss to him because he reimbursed J. Alexander in full for its more than $1 million in losses. In his objections to the PSR, he portrayed himself as a "victim[]" of the fraudulent scheme (Letter from defense counsel Maranda E. Fritz to U.S. Probation Officer Johnny Y. Kim, dated March 24, 2004 ("Rosen Letter"), at 3), and he makes similar arguments on this appeal (see, e.g., Rosen brief on appeal at 7, 18-21), contending that the loss amount attributed to him should have been zero and that the court could not fix the loss amount at $21,000 without making findings as to the basis for that figure. These arguments are meritless.
104
To begin with, the suggestion that Rosen was a victim of the scheme is frivolous. The PSR determined that
105
ROSEN accumulated a gross profit of approximately $546,163.96, in connection with his sale of H & R shares. (Ultimately, ROSEN did not profit from his trading activities involving H & R stock, since his company J. Alexander, was left holding 600,000 H & R shares, and ROSEN was responsible for covering the losses related to these shares.)
106
(PSR at 8, ¶ 31.) This estimate of Rosen's gross profit from the manipulative scheme was not substantially disputed by Rosen; indeed, it may have understated his gross profit. Rosen's letter raising objections to the PSR stated that "Rosen ... suffered a loss of greater than $1 million," for a "net... personal loss of approximately $400,000" (Rosen Letter at 3 (emphasis added)), thereby indicating that Rosen's gross gain was more than $600,000. Rosen admitted in his plea allocution that he had received H & R stock at no cost and sold it at inflated prices, and his plea of guilty constituted an admission that he conspired to manipulate the price of H & R stock and that he knowingly and intentionally engaged in fraudulent trading activity. He was not a victim.
107
In estimating the loss caused by Rosen's crime, the district court used the loss range to which the parties themselves had stipulated. The court has discretion to accept a loss amount to which the parties had expressly agreed and that was endorsed by the Probation Department; the court was not required to make findings as to the basis of such a stipulated and PSR-approved loss.
B. More Than Minimal Planning
108
The 1995 Guidelines provided for a two-step enhancement if the offense involved "more than minimal planning," 1995 Guidelines § 2F1.1(b)(2)(A), as "defined in the Commentary to § 1B1.1," id. § 2F1.1 Application Note 2. "More than minimal planning" was defined as
109
more planning than is typical for commission of the offense in a simple form. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense . . . . "More than minimal planning" is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.
110
1995 Guidelines § 1B1.1 Application Note 1(f). Rosen contends that his conduct consisted merely of typical stock trading activity and that, therefore, his "involvement in this offense did not involve any planning." (Rosen brief on appeal at 21 (emphasis in original).) His argument is wide of the mark, for the focus of this enhancement is not on the level of a given "[defendant's] involvement" but rather, as indicated by § 1B1.1 Application Note 1(f), is on the nature of the offense.
111
Where the offense is the product of joint criminal activity, a defendant is responsible for "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." 1995 Guidelines § 1B1.3(a)(1)(B). If a coconspirator has organized a crime that requires more than minimal planning, other coconspirators who were not planners are chargeable with that offense characteristic if it was "foreseeable to [them] that more than minimal planning would occur in order to" complete the crime. United States v. Mizrachi, 48 F.3d 651, 657 (2d Cir.1995). The sentencing court's ruling that a given offense reflected more than minimal planning is an application of the Guidelines to the facts, which is reviewable only for abuse of discretion. See, e.g., United States v. Cropper, 42 F.3d 755, 758 (2d Cir.1994).
112
In the present case, the district court could permissibly find that the creation, by coconspirators Heredia and Mitton, of the daisy chain of sales in order to inflate the price of H & R's shares required more than minimal planning. In particular, orchestration was required in order to match purchases and sales among coconspirators; to have such purchases and sales occur repeatedly in order to create an impression of strong market demand for the shares; and to have a sufficient number of participants, with assigned transactional duties (buying, selling, brokering), in order that the absence of changes in beneficial ownership of the shares might be concealed. Without such coordination, the prices of H & R shares would have been left to be determined by ordinary market forces. Plainly, each individual trade by the coconspirators was not merely opportunistic but was instead part of a carefully orchestrated scheme to inflate the price of the stock.
113
Rosen plainly was a participant prior to the September 19-24 run-up of the H & R price, having secretly been given the bulk of his personal shares in August. In his plea allocution, Rosen stated that he had "participated in trading designed to inflate the price of H & R stock," and, "with respect to the conspiracy count," that he "participated in that scheme ... with the agreement of others." (Plea Tr. 12.) The need for orchestration of the circular transactions in order to execute the inflationary design must have been foreseeable to him. We see no error in the district court's interpretation of the more-than-minimal-planning guideline as having applicability to Rosen.
CONCLUSION
114
We have considered all of Rosen's contentions on this appeal and have found in them no basis for reversal. We affirm the district court's denial of Rosen's motion to withdraw his plea of guilty. In light of the Supreme Court's decision in Booker and this Court's decision in Crosby, we remand to the district court for consideration, in conformity with Crosby, of whether Rosen should be resentenced.
115
The mandate shall issue forthwith.
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Opinion issued August 13, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00452-CR
———————————
YANCY BOWEN LACROIX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Tarrant County, Texas
Trial Court Case No. 1534672D
MEMORANDUM OPINION
Yancy Bowen Lacroix pleaded guilty without an agreed recommendation as
to punishment to the state-jail-felony offense of possession of a controlled substance
of less than one gram. The trial court sentenced Lacroix to 12 months in the State
Jail Division of the Texas Department of Criminal Justice. See TEX. HEALTH &
SAFETY CODE § 481.115(a), (b).
On appeal, Lacroix’s appointed counsel has filed a motion to withdraw, along
with a brief, stating that the record presents no reversible error and the appeal is
without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807,
812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the
record and is unable to advance any grounds of error that warrant reversal. See
Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155
(Tex. App.—Houston [1st Dist.] 2006, no pet.).
Counsel advised Lacroix of his right to access the record and provided him
with a form motion for access to the record. Counsel further advised Lacroix of his
right to file a pro se response to the Anders brief. Lacroix did not request access to
the record and did not file a pro se response to counsel’s brief.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400
2
(emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court
determines whether arguable grounds exist by reviewing entire record). We note that
an appellant may challenge a holding that there are no arguable grounds for appeal
by filing a petition for discretionary review in the Texas Court of Criminal Appeals.
See Bledsoe, 178 S.W.3d at 827 & n.6.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.1 Attorney William R. Biggs must immediately send Lacroix the required
notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.
6.5(c). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
3
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336 Pa. Superior Ct. 377 (1984)
485 A.2d 1130
COMMONWEALTH of Pennsylvania
v.
Thomas Jefferson FLEMING.
Appeal of INTERNATIONAL FIDELITY INSURANCE COMPANY.
Supreme Court of Pennsylvania.
Submitted October 15, 1984.
Filed December 7, 1984.
*378 Philip B. Friedman, Erie, for appellant.
Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.
Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
OLSZEWSKI, Judge:
This appeal follows denial of a surety's petition to vacate forfeiture of bail bonds. Appellant, International Fidelity Insurance Company, posted bonds in sum of $15,000.00 for Thomas Jefferson Fleming. When Fleming failed to appear for a court date on September 11, 1980, the court declared the bonds forfeited. Fleming was subsequently apprehended by California authorities, June 16, 1981. On December 31, 1981, the court entered judgment by confession against appellant on the bonds. Appellant petitioned *379 the court to vacate the forfeitures. The lower court denied the petition by order of September 14, 1982.
We note at the outset that appellant, to date, has not paid the forfeited bonds. The Commonwealth argues that the test for opening a confessed judgment governs where, as here, a confessed judgment has already been entered against the surety at the time it requests the forfeiture be set aside. See Commonwealth ex rel. County of Cumberland v. Johnson, 19 Pa.D. & C. 3rd 339 (1981). The lower court, in effect, disregarded the confessed judgment and treated the matter simply as a petition to vacate forfeiture under Pa.R.Crim.P. 4016(A)(1)(c), 42 Pa.C.S.A. We follow its lead. See Pa.R.Crim.P. 1504, 42 Pa.C.S.A.; Pa.R. Crim.P., Rule 1, 42 Pa.C.S.A.
Remission of forfeitures is a practice calculated to encourage bondsmen to seek actively the return of absent defendants. Commonwealth v. Reeher, 245 Pa.Super. 282, 369 A.2d 404 (1976). Allowance or denial of a remission lies within the sound discretion of the trial court. Commonwealth v. Jones, 268 Pa.Super. 507, 429 A.2d 436 (1981). The Honorable Richard Nygaard found that the surety's efforts had no impact on the defendant's actual detection. Lower court opinion at 2. It reasoned, "Mere participation in the search for the defendant is not enough. The apprehension or return of the defendant must either be effected by the efforts of the bondsman or [those efforts must] at least have a substantial impact on his apprehension and return." Id. (emphasis added).
Appellant acknowledges that it did not directly apprehend the defendant. It contends, however, that it did make substantial efforts to locate him. The lower court ruled that appellant failed to meet its burden of proof to justify exoneration from payment of the bond. We cannot say the lower court abused its discretion in reaching this conclusion.
The order of the court below is affirmed.
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242 P.3d 1287 (2010)
2010 MT 209
BOESE
v.
McKINNON.
No. DA 10-0190.
Supreme Court of Montana.
October 5, 2010.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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791 F.Supp. 380 (1992)
UNITED STATES of America
v.
Gene GOTTI and John Carneglia, Defendants.
No. 83 CR 412(S) (JRB).
United States District Court, E.D. New York.
June 1, 1992.
*381 Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Robert P. LaRusso, Asst. U.S. Atty., of counsel; Edward J. Mandery, Paralegal Specialist), for U.S.
Fischetti & Russo, New York City (Ronald P. Fischetti, of counsel), for defendant Gene Gotti.
Law Offices of Benjamin Brafman, P.C., New York City (Benjamin Brafman, of counsel), for defendant John Carneglia.
MEMORANDUM DECISION AND ORDER
BARTELS, District Judge.
Defendants Gene Gotti and John Carneglia move pursuant to Fed.R.Crim.P. 35(b) for reduction of sentences imposed by this Court on July 7, 1989.[1] The following statement of facts appearing in the Government's brief is adopted by the Court:
"On May 23, 1989, following a six-week jury trial, the defendants Gene Gotti and John Carneglia were convicted of racketeering conspiracy (18 U.S.C. § 1962(d)), narcotics conspiracy (21 U.S.C. § 846), and possession of heroin with intent to distribute (21 U.S.C. § 841(a)(1)). Carneglia was also convicted of traveling in interstate commerce to promote and facilitate the conduct of a narcotics business enterprise (18 U.S.C. § 1952). After a post-trial evidentiary hearing [to determine whether they should be remanded without bail prior to sentencing, with the understanding that the information adduced would be used as part of the Government's Fatico presentation at sentencing], wherein the Government established the defendants' membership in the Gambino organized crime family and their continued participation in narcotics trafficking and other criminal activities, the Court on July 7, 1989, sentenced both Gotti and Carneglia to consecutive prison terms of 20 years on the racketeering conspiracy charge, 15 years on the narcotics conspiracy charge, and 15 years on the substantive possession count, for a total of 50 years imprisonment. Carneglia was given a five year concurrent term on the Travel Act violation. In addition, both defendants were ordered to pay $75,000 in fines."
The defendants unsuccessfully appealed to the United States Court of Appeals for the Second Circuit after sentencing. U.S. v. Ruggiero, 928 F.2d 1289 (2d Cir.1991), cert. den. Gotti v. U.S., ___ U.S. ___, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991). Since their petition for a writ of certiorari to the United States Supreme Court was denied on November 4, 1991, the defendants' motions for relief under Rule 35(b) were filed in a timely manner. Having made an exception to the Court's Rules, Procedures and Forms, the Court entertained oral argument on these motions.
I
The version of Rule 35(b) for offenses committed prior to November 1, 1987 states, in pertinent part:
*382 A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after the entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation.
"Although the language of Rule 35(b) does not specify the grounds for reduction of sentence, its provisions have been uniformly construed to be limited to consideration of the validity of a sentence itself. Courts have refused to consider claims under the rule that involve the merits of the defendant's conviction." U.S. v. Smith, 839 F.2d at 181-82; U.S. v. Schiff, 876 F.2d 272, 274-75 (2d Cir.1989).
Upon their motions, defendants ask the Court to review the sufficiency of the evidence of the trial and, in particular, the testimony of the Government's expert witness, F.B.I. Special Agent Gerald Franciosa. As Smith and Schiff indicate, the function of Rule 35(b) is very narrow. These issues have been decided by the jury's verdict and cannot be reviewed by the Court on a Rule 35(b) motion, particularly after the case has been affirmed by the Second Circuit and certiorari denied by the Supreme Court. The Court cannot and will not re-examine the evidence.
The defendants further ask the Court to review the sufficiency of its sentencing determinations and, in particular, its reliance on certain confidential Government sources and on evidence concerning the quantity of heroin involved in commission of the offenses. These arguments were unsuccessfully raised at the time of sentencing and on appeal to the Second Circuit. U.S. v. Ruggiero, 928 F.2d at 1305-06. The Court cannot and will not, under the parameters of Rule 35(b), reexamine its sentencing determinations.
The defendants further claim that their sentences were excessive and extraordinarily severe, but do not claim that they violate the Eighth Amendment prohibition against cruel and unusual punishment. Unless a defendant's sentence is so disproportionately excessive as to violate the Eighth Amendment, the mere disparity between a sentence a defendant received and the sentence imposed upon others provides no justification for vacating his conviction. U.S. v. Rios, 893 F.2d 479, 481 (2d Cir. 1990); U.S. v. Jaramillo-Montoya, 834 F.2d 276, 279-80 (2d Cir.1987), cert. den. 486 U.S. 1023, 108 S.Ct. 1998, 100 L.Ed.2d 229 (1988).
The defendants also assert that since the racketeering conspiracy, narcotics conspiracy and possession of heroin with intent to distribute charges involved the "same conduct," the imposition of consecutive sentences punished the same conduct three times. This argument is based on a flawed premise because, as any reading of the relevant statutes reveals, these three counts involve different criminal acts and conduct. The defendants also state that the sentences were greater than those discussed at plea negotiations with the Government. The disparity, if any, between any sentences contemplated during plea negotiations and the sentences actually imposed after a jury's verdict is irrelevant to a Rule 35(b) motion and provides no basis for reducing them.
II
Finally, the defendants make a plea for leniency. Such a plea is permissible under Rule 35(b). U.S. v. Mescaine-Perez, 849 F.2d at 58; U.S. v. Sambino, 799 F.2d 16, 17 (2d Cir.1985). In doing so, the defendants ignore their eligibility for parole by the U.S. Parole Commission ("Commission") because the offenses they committed occurred prior to November 1, 1987 and resulted in prison terms exceeding one year. 18 U.S.C. § 4205 (1982), repealed effective after November 1, 1987, by Pub.L. No. 98-473, Title II, § 218(a)(5), Oct. 12, 1984, 98 Stat. 1976, 2027 as amended. "[T]hat ... [courts] ... are entitled to take parole expectations into account appears *383 undeniable...." and so here, the Court does so. U.S. v. Ortiz, 742 F.2d 712, 715 (2d Cir.1984), cert. den. 469 U.S. 1075, 105 S.Ct. 573, 83 L.Ed.2d 513 (1984).
Both defendants will be eligible for parole in June, 1999, at which time the Commission will consider their cases in light of Commission guidelines which are codified at 28 C.F.R. § 2.20 (1988). Furthermore, if either of the defendants complies with the rules and regulations of the Bureau of Prisons, works in an industry or prison camp, or performs exceptionally meritorious services, he will likely receive statutory reductions in his sentence. 18 U.S.C. §§ 4161-65 (1982), repealed effective after November 1, 1987, by Pub.L. No. 98-473, Title II, § 218(a)(4), Oct. 12, 1984, 98 Stat. 1976, 2027 as amended. Experience with the above-mentioned parole statutes and Commission guidelines suggests that defendants who have received sentences of 50 years are very likely to be released many years before that time.[2]
In contrast, if the United States Sentencing Guidelines ("U.S.S.G.") had applied in sentencing these defendants, they would have likely received 360 months to life or life depending upon certain evidence relating to the roles they played. There would be no parole available to reduce such a U.S.S.G. sentence. The contrast between sentencing under the parole and the U.S.S.G. regimes demonstrates that the sentences imposed on these defendants are comparatively less severe. There is no justification under the circumstances to reduce the sentences imposed.
The Court has carefully considered the merits of the defendants' motions, and for the reasons stated above, they are hereby DENIED.
SO ORDERED.
NOTES
[1] The defendants motions are to reduce, not correct, their sentences. They do not argue that their sentences were either illegal or imposed in an illegal manner. Thus, only Fed.R.Crim.P. 35(b) applies here. U.S. v. Mescaine-Perez, 849 F.2d 53, 58 (2d Cir.1988); U.S. v. Smith, 839 F.2d 175, 182 n. 9 (3d Cir.1988).
[2] The Court wishes to emphasize that it intends through this memorandum-decision and order to set forth absolutely no position whatsoever about any future action the Commission might take concerning the defendants.
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937 F.2d 606
U.S.v.Basey*
NO. 90-8377
United States Court of Appeals,Fifth Circuit.
JUL 11, 1991
1
Appeal From: W.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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56 Wn. App. 863 (1990)
785 P.2d 1154
THE STATE OF WASHINGTON, Appellant,
v.
JAMES M. HUTCHISON, Respondent.
No. 12166-2-II.
The Court of Appeals of Washington, Division Two.
February 12, 1990.
*864 James P. Miller, Prosecuting Attorney, and Nelson E. Hunt, Deputy, for appellant.
Rodney M. Benjamin, for respondent (appointed counsel for appeal).
SCHUMACHER, J.[*]
The State appeals the trial court's order suppressing evidence and the resulting dismissal of charges of possession of a controlled substance with intent to deliver against James M. Hutchison.
The following facts are undisputed. Officer Blair of the Centralia Police Department went to the Hallmark Inn to investigate a person who was lying in the parking lot, apparently unconscious. The individual, later identified as Hutchison, was lying on his back with his feet in a parking stall. The officer attempted to rouse Hutchison and lifted him to his feet. Hutchison staggered about in a stupor so the officer seated him in the back of the patrol car. Officer Blair did not know the cause of Hutchison's condition but did not believe the man needed medical attention so did not take him to a hospital. At the same time the officer believed Hutchison would be in physical danger if left in the parking lot.
Officer Blair attempted to communicate with Hutchison but the man was unresponsive to the officer's questions and had to be awakened several times. In an effort to determine whether Hutchison carried identification indicating an address where he could be taken or what other disposition could be made of him, the officer conducted a search of Hutchison's clothing. Officer Blair found a wallet in Hutchison's pants but it contained no identification. Continuing the search to an inner jacket, the officer found baggies, folded bindles, and a plastic box containing razor blades. Searching further, Officer Blair discovered three rolled baggies containing marijuana, and a leather pouch containing *865 white powder residue in plastic bags and a small, empty vial. Hutchison was then taken to the police station where he finally managed to provide Officer Blair with his name.
Hutchison was later charged with two counts of possession of a controlled substance with intent to deliver. At a pretrial suppression hearing, the trial judge found that Officer Blair was searching for identification, not for "elements of a crime", and that no medical emergency existed at the time. From the findings the court concluded that the State failed to meet its burden of showing a sufficient emergency or exigent circumstances to allow a warrantless search. The State assigns error to the finding that no medical emergency existed and the conclusion that the State failed to show a sufficient emergency or exigent circumstances.
[1] As a general rule, warrantless searches are per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967); State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419 (1984). However, an emergency situation can justify a warrantless search. See, e.g., State v. Loewen, 97 Wn.2d 562, 647 P.2d 489 (1982); State v. Jordan, 79 Wn.2d 480, 487 P.2d 617 (1971). In order for a warrantless search to be valid under the medical emergency exception, the court must be satisfied that the search was motivated by a perceived need to render medical assistance. Loewen, at 568. The State must establish that the officer subjectively believed a medical emergency existed and that such belief was reasonable. The trial court's finding that no medical emergency existed in this case is supported by the evidence.
However, this does not end the inquiry. It has been recognized and accepted in numerous federal and state court decisions that police officers modernly are expected to render aid and assistance on a regular basis to persons who, although perhaps not in need of immediate professional medical treatment, are in danger and in need of help. Searches performed as a part of providing such aid, if reasonable and in good faith, are generally allowed. As noted *866 by Professor LaFave, the rule is essentially one of common sense:
[E]vidence of crime is sometimes inadvertently come by when a person is searched for some purpose not directly tied to the objective of detecting criminal activity. The policeman, as a jack-of-all-emergencies, has "complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses"; by default or design he is expected "to aid individuals who are in danger of physical harm," "assist those who cannot care for themselves," and "to provide other services on an emergency basis." If a reasonable and good faith search is made of a person for such a purpose, then the better view is that evidence of crime discovered thereby is admissible in court.
(Footnotes omitted.) 2 W. LaFave, Search and Seizure § 5.4(c) (2d ed. 1987).
The services expected of and received from local police, unrelated to criminal investigations, have been characterized as "community caretaking functions". Cady v. Dombrowski, 413 U.S. 433, 441, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973). In State v. Chisholm, 39 Wn. App. 864, 696 P.2d 41 (1985), an officer stopped a pickup truck solely to warn the occupants that a hat was about to blow off the bed of the truck, arrested minors found in possession of beer, and searched the truck, finding marijuana. Upholding the stop and search of the vehicle, this court stated:
[A]n individual's interest in proceeding about his business unfettered by police interference must be balanced against the public's interest in having police officers perform services in addition to the traditional enforcement of penal and regulatory laws. This latter interest is sometimes characterized as "community caretaking functions."
(Footnote and citation omitted.) Chisholm, at 867.
Recognizing the potential for abuse, the community caretaking functions justification for a warrantless search must be carefully applied and the "court must be satisfied the emergency is not simply a pretext for conducting an evidentiary search." State v. DeArman, 54 Wn. App. 621, 626, 774 P.2d 1247 (1989) (citing State v. Lynd, 54 Wn. App. 18, 21, 771 P.2d 770 (1989)).
*867 In this instance, it is undisputed that at the time of the search, Hutchison was in need of aid and assistance. Officer Blair had a reasonable and legitimate concern that Hutchison would be in danger if abandoned in the parking lot. The trial court found that the officer did not search Hutchison for criminal investigatory purposes but in an effort to determine what should be done with him. Courts of other jurisdictions have upheld numerous searches under similar circumstances. United States v. Nord, 586 F.2d 1288, 1290-91 (8th Cir.1978) (officers justified in entering apartment when they reasonably believed the occupant to be unconscious and in need of assistance); United States v. Haley, 581 F.2d 723 (8th Cir.1978) (search of his nearby automobile for identification, finding illegal firearm, where man unconscious on street); People v. Smith, 47 Ill.2d 161, 265 N.E.2d 139 (1970) (search for identification of man found unconscious in hallway); State v. Miller, 486 S.W.2d 435 (Mo. 1972) (search to assist man found unconscious in public rest room).
Officer Blair's community caretaking duties required that he render aid to Hutchison who, if allowed to remain lying in the parking lot or staggering about in an impaired condition, would have been in danger of injury or death. The only reasonable option for the officer was to ascertain Hutchison's identity and any information that would aid in his disposition. Therefore, the search was not an unreasonable search prohibited by the state or federal constitutions. The trial court should have admitted the evidence.
Accordingly, we reverse and remand.
PEARSON and UTTER, JJ. Pro Tem., concur.
NOTES
[*] This appeal was heard by a Supreme Court Justice, a retired Supreme Court Justice, and a retired Superior Court Judge sitting as Court of Appeals Judges Pro Tempore in Division Two, pursuant to CAR 21(c).
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 1981-06
STEVEN CRAIG WHITE, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
Per curiam. keasler and hervey, jj., dissent.
ORDER
The petition for discretionary review violates Rule of Appellate Procedure 68.4(i) ,
because it does not contain a copy of the opinion of the court of appeals.
The petition is struck. See Rule of Appellate Procedure 68.6.
The petitioner may redraw the petition. The redrawn petition must be filed in the
Court of Criminal Appeals within thirty days after the date of this order.
En banc.
Delivered: April 25, 2007
Do Not Publish.
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Case: 19-11275 Document: 00515481519 Page: 1 Date Filed: 07/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11275 July 8, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GEORGE WHITEHEAD, JR.,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-11-1
Before HIGGINBOTHAM, JONES and COSTA, Circuit Judges.
PER CURIAM: *
George Whitehead, Jr., federal prisoner # 35653-177, was convicted of
drug and gun charges in 2007 and was sentenced to life imprisonment. He
moved for resentencing under the First Step Act of 2018, § 404, Pub. L. No.
115-391, 132 Stat. 5194, 5222 (2018). The district court denied the motion. We
remand for the limited purpose of allowing the district court to explain why it
* 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: 19-11275 Document: 00515481519 Page: 2 Date Filed: 07/08/2020
No. 19-11275
did so, and we retain jurisdiction as is customary for limited remands. See,
e.g., United States v. Gomez, 905 F.3d 347, 354-56 (5th Cir. 2018).
Without a hearing, the district court denied the motion in an order
stating only that “having considered the motion, the response of the
government, the record, and applicable authorities,” the motion should be
denied. Though district courts need not always explain why they have denied
a motion, meaningful review is possible here only with a statement of reasons
for the denial. See Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.
1989). Absent such a statement, we can only guess why the motion was denied.
We thus REMAND for the limited purpose of allowing the district court to
explain its reasons for the denial.
2
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219 F.Supp.2d 917 (2002)
Robert PETIT, et al., Plaintiffs,
v.
CITY OF CHICAGO, a municipal corporation, Defendant.
No. 90 C 4984.
United States District Court, N.D. Illinois, Eastern Division.
January 31, 2002.
Kimberly A. Sutherland, Chicago, IL, for Plaintiffs.
Andrew Mine, Amy Renee Skaggs, City of Chicago, Department of Law, Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
HART, District Judge.
This case involves promotions within the Chicago Police Department ("CPD") and allegations that White police officers were discriminated against in the process. The promotions at issue were to the rank of sergeant and occurred from December 1988 through September 1991. It is undisputed that defendant City of Chicago "standardized" the examination scores of African-American and Hispanic candidates in a manner favorable to those candidates and that it also promoted Hispanic candidates out of the rank order that resulted from the standardization. See generally *918 Petit v. City of Chicago, 31 F.Supp.2d 604 (N.D.Ill.1998).
This case has been on trial since January 15, 2002 and closing arguments are scheduled to begin the morning of January 31, 2002. In its proposed jury instructions filed with the final pretrial order, defendant requested that the jury be asked to resolve underlying factual issues only and respond in the form of special verdicts. See Fed.R.Civ.P. 49(a). In light of the jury's findings, the court would then rule on the issues of whether a strong basis in the evidence supported that defendant had a compelling interest for standardizing the examination and promoting Hispanics out of rank order and whether such preferences were narrowly tailored. The format requested by defendant is similar to that followed in a case concerning CPD detective promotions during the same time period. See generally Majeske v. City of Chicago, 29 F.Supp.2d 872 (N.D.Ill.1998) ("Majeske I"), aff'd, 218 F.3d 816 (7th Cir.2000) ("Majeske II"), cert. denied, 531 U.S. 1079, 121 S.Ct. 779, 148 L.Ed.2d 676 (2001). In Majeske, the parties apparently agreed to this procedure. See Majeske I, 29 F.Supp.2d at 875. Majeske II contains no express discussion of any objection to this procedure.[1] In their proposed jury instructions in the present case, however, plaintiffs did not request the same format nor do they presently request such a format. Plaintiffs instead proposed that the jury respond to questions reaching the merits of the claims, not just the underlying facts.[2]
After considering the parties' proposals, the court drafted jury instructions which provided that the jury would resolve the ultimate issues of whether there was a strong basis in the evidence to support a compelling interest and, if so, if the preferential treatment was narrowly tailored. The court's draft instructions were provided to the parties on the day before the trial began and the parties were granted until January 22, 2002 to file written objections. Defendant thereafter raised objections that the Majeske-type procedure was required. In light of both sides' written objections, on January 28, the court provided the parties with a revised version of the instructions. The court did not revise the basic format of having the jury resolve the compelling interest and narrowly tailored issues. On January 29, the parties formally placed their objections on the record. Defendant again raised its objection to the format and the court stated its reasons for not modifying the format. On January 30, defendant filed a written motion again objecting to the format. Today's *919 opinion again denies defendant's requested special verdict format.
The City contends that case law requires that the court, not the jury, decide the legal issues of compelling interest and narrow tailoring. It further contends that, even if the court subsequently treats the jury's verdict as advisory and thereby makes the ultimate determination of compelling interest and narrow tailoring, defendant will have been deprived of its right to have the jury decide the underlying factual issues. For its contention that the court must be the one to determine compelling interests and narrow tailoring, defendant primarily relies on the following passage from Majeske II.
Whether there is enough evidence to support a finding of a compelling governmental interest and thereby justify a race-conscious action is a question of law that we review de novo. Contractors Ass'n of Eastern Pa., [Inc. v. City of Philadelphia], 91 F.3d [586,] 596 [(3d Cir.1996)]; Concrete Works of Colorado, [Inc. v. City & Cty. of Denver], 36 F.3d [1513,] 1522 [(10th Cir.1994)]. Similarly, we apply plenary review to the issue of whether the City's affirmative action plan was narrowly tailored. Contractors Ass'n of Eastern Pa., 91 F.3d at 596. Finally, since the City prevailed at trial, we will view the facts in the light most favorable to the City and draw all reasonable inferences in its favor. See McNamara [v. City of Chicago], 138 F.3d [1219,] 1223 [(7th Cir.1998)].
Majeske II, 218 F.3d at 820.
Defendant reads too much into this passage. Sufficiency of the evidence to support a verdict is always a legal question for which the reviewing court, as with all legal issues, has de novo or plenary review. See Lenker v. Methodist Hospital, 210 F.3d 792, 796 (7th Cir.2000); Pierce v. Atchison, Topeka & Santa Fe Ry., 65 F.3d 562, 567-68 (7th Cir.1995); Agretti v. ANR Freight System, Inc., 982 F.2d 242, 246 (7th Cir.1992); Dean Foods Co. v. Brancel, 187 F.3d 609, 616 (7th Cir.1999). See also United States v. Hill, 196 F.3d 806, 808 (7th Cir.1999) ("basically there is deferential review and non-deferential (plenary) review"). The Contractors Association case cited in Majeske II does indicate a distinction between clearly erroneous review of underlying facts and plenary review of the ultimate legal questions of compelling interest and narrow tailoring. 91 F.3d at 596. Contractors Association, however, concerned review of a district court grant of an injunction and therefore, as with any determination by the bench that requires express findings of fact, there were factual determinations that would be reviewed on a different standard than the legal determinations. The ordinary jury trial does not as clearly allow for such distinctions. Concrete Works was a summary judgment ruling and it simply stated the usual distinction between review of underlying factual determinations and review of the ultimate legal conclusion. 36 F.3d at 1522. Similarly, the trial court in Majeske followed Rule 49(a) procedures that allowed for two distinct levels of review: review of the jury's fact determinations and review of the legal conclusions the judge drew from those facts. See Freeman v. Chicago Park District, 189 F.3d 613, 616 (7th Cir.1999). Whether to use Rule 49(a) procedures is permissive, not mandatory. See Fed.R.Civ.P. 49(a) ("[t]he court may require a jury to return only a special verdict"); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 171 (2d Cir. 1998). Majeske II does not mandate the type of special verdict employed in that case, nor does it mandate a more exacting level of review than that ordinarily employed in reviewing a jury verdict. To the extent the issue is raised on properly preserved motions for judgment as a matter of law, see generally Fed.R.Civ.P. 50, Majeske II only requires that the court make *920 the legal determination of whether the evidence before the jury was sufficient to support the jury's determinations as to compelling interests and narrow tailoring. The jury instructions are to state the appropriate legal standards and the jury is to make determinations within the confines of those instructions, with it further being presumed that the jury accurately and faithfully follows the instructions.
Moreover, even if Majeske II supports that review of the jury's determinations as to compelling interests and narrow tailoring is to be more demanding that the usual review of a jury verdict, that does not mean that special verdicts as to the underlying facts are mandatory. In First Amendment cases, the Supreme Court has held that "reviewing courts have an obligation to conduct an `independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.'" National Organization for Women, Inc. v. Scheidler, 267 F.3d 687, 701 (7th Cir.2001) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). This rule applies to factfinding whether made by a judge or a jury. Scheidler, 267 F.3d at 701 (quoting Bose, 466 U.S. at 501, 104 S.Ct. 1949). However, precisely how this standard applies in reviewing a jury verdict is unclear. Scheidler, 267 F.3d at 701 (citing Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1128-29 (7th Cir.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988)). "In particular, it is not clear whether Bose requires an independent review only of the ultimate factual conclusion that the defendants' conduct fell outside the protection of the First Amendment, or whether the court is required to conduct a more searching review of `findings of underlying facts, evaluations of credibility, and the drawing of inferences.'" Scheidler, 267 F.3d at 701 (quoting Brown & Williamson, 827 F.2d at 1128). The extent of the review potentially raises Seventh Amendment questions as to the right to a jury trial. See Scheidler, 267 F.3d at 701; Brown & Williamson, 827 F.2d at 1128-29. In both Scheidler and Brown & Williamson, the Seventh Circuit assumed, without deciding,[3] that wide-ranging, searching, independent review applied. The Seventh Circuit then applied that standard of review to the general verdicts that had been entered in each case. The Seventh Circuit did not find that special verdicts as to the underlying facts were necessary in order to apply this form of review.
This court rejects the format requested by defendant because it is within the province of the jury to apply the law contained in the instructions in order to reach determinations as to compelling interests and narrow tailoring. To the extent the issues are properly preserved and raised after the jury's verdict is returned, the court will review the evidence to determine whether the evidence is legally sufficient to support the jury's determinations as to compelling interests and narrow tailoring. Alternatively, even if review of the jury's verdict is to be more wide-ranging, such review can be conducted by this court or a reviewing court even without the type of special verdicts proposed by defendant.
IT IS THEREFORE ORDERED that defendant's motion to modify court's proposed jury instructions and jury verdict form is denied.
NOTES
[1] The Seventh Circuit opinion states that additional issues were raised that are not discussed in the opinion. See Majeske II, 218 F.3d at 824 n. 2. It is unknown whether that included any issues regarding the Rule 49(a) procedure. Regardless, Majeske II contains no holding as to the propriety of the procedure that was followed.
[2] Plaintiffs still object that the court's instructions do not instruct the jury regarding defendant's burden of production. Defendant's original submissions also requested instructions as to its burden of production, but they no longer contend such an instruction is appropriate. The Seventh Circuit has repeatedly held that juries are not to be instructed as to the prima facie showing and burden-shifting that is often used by court's in analyzing employment discrimination cases. See Mattson v. Schultz, 145 F.3d 937, 938 (7th Cir.), cert. denied, 525 U.S. 963, 119 S.Ct. 406, 142 L.Ed.2d 329 (1998); Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir.1997); Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1350 (7th Cir.1995); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994), cert. denied, 515 U.S. 1159, 115 S.Ct. 2612, 132 L.Ed.2d 855 (1995). Whether defendant met its burden of production as to compelling interest and narrow tailoring was for the court to decide. See Achor, supra; Hennessy, supra.
[3] The Seventh Circuit could make this assumption in both cases because, even applying the more searching form of review, it upheld the jury's verdict in each case.
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07/03/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 5, 2018
IN RE D.N. ET AL.
Appeal from the Circuit Court for Bradley County
No. V-16-844 J. Michael Sharp, Judge
___________________________________
No. E2017-02315-COA-R3-PT
___________________________________
This is a termination of parental rights case. Father/Appellant appeals the trial court’s
termination of his parental rights to the minor child on the ground of abandonment by
willful failure to visit. Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i).
Because there is clear and convincing evidence to support both the ground for
termination and the trial court’s finding that termination of Appellant’s parental rights is
in the child’s best interest, we affirm and remand.
Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.
Alan R. Beard, Chattanooga, Tennessee, for the appellant, Ervin T.
Lisa Ashley McLain Gaither, Cleveland, Tennessee, for the appellees, Brent E., and
Toyetta E.
OPINION
I. Background
Courtney N. is the biological mother of the minor children, T.N. (d/o/b July 2011)
and D.N. (d/o/b May 2009).1 Appellant Ervin T. is the biological father of T.N. D.N.’s
biological father is deceased. Courtney N.’s parental rights were terminated by the trial
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
court; however, she did not appeal. Accordingly, in the instant appeal, we are concerned
only with the termination of Ervin T.’s parental rights to T.N.
Brent E. and Toyetta E. (together “Appellees”) were Courtney N.’s foster parents,
and she remained close to them after leaving their custody. T.N. and D.N. were removed
from Courtney N.’s custody based on allegations that the children were exposed to illicit
drug use, lacked proper supervision, and were in danger of psychological or physical
harm. By order of May 16, 2013, the Juvenile Court of Bradley County determined that
the children were dependent and neglected and placed custody with the Appellees, where
the children have remained since that time. Although Appellant testified that after T.N.
was removed from Courtney N.’s custody, he was contacted by DCS, through CASA, he
did not pursue custody.
On December 8, 2016, Appellees filed a petition to terminate Appellant’s parental
rights to T.N. and for adoption.2 As grounds for termination, Appellees averred that
Appellant had abandoned T.N. by willful failure to visit and support.3 Appellant
answered the petition opposing termination of his parental rights.
The petition was heard on August 8, 2017. By order of October 24, 2017, the trial
court terminated Appellant’s parental rights to T.N. on the sole ground of abandonment
by willful failure to visit and on its finding that termination of Appellant’s parental rights
is in the child’s best interest. Appellant appeals.
II. Issues
There are two dispositive issues in this case, which we state as follows:
1. Whether there is clear and convincing evidence to support the trial court’s termination
of Appellant’s parental rights on the ground of abandonment by willful failure to visit.
2. If so, whether there is clear and convincing evidence to support the trial court’s
finding that termination of Appellant’s parental rights is in the child’s best interest.
III. Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
2
As noted above, the petition also sought termination of Courtney N.’s parental rights to both
T.N. and D.N.
3
At the hearing on the petition, Appellees waived the ground of abandonment by willful failure
to support and proceeded on the sole ground of abandonment by willful failure to visit.
-2-
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and that termination is in the child’s best interest. Tenn. Code
Ann. §§ 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-
113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence
“establishes that the truth of the facts asserted is highly probable . . . and eliminates any
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
“produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the
facts sought to be established.” Id. at 653.
In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).
In its order terminating Appellant’s parental rights, the trial court made a specific
finding that Appellee, Toyetta E., was a credible witness. When the resolution of an
issue in a case depends on the truthfulness of witnesses, the trial judge, who had the
opportunity to observe the witnesses and their manner and demeanor while testifying, is
in a far better position than this Court to decide those issues. See Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); McCaleb v. Saturn Corp., 910 S.W.2d 412,
415 (Tenn. 1995). The weight, faith, and credit to be given to any witness’ testimony lies
in the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court. See Whitaker, 957 S.W.2d at 837; McCaleb, 910 S.W.2d
at 415; Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
-3-
IV. Abandonment by Willful Failure to Visit
The trial court found, by clear and convincing evidence, that Appellant’s parental
rights should be terminated on the ground of abandonment by willful failure to visit
pursuant to Tennessee Code Annotated section 36-1-113(g)(1) and Tennessee Code
Annotated section 36-1-102(1)(A)(i). In pertinent part, Tennessee Code Annotated
section 36-1-113(g) provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and non-exclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred . . .
Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part, as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent or parents or the guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians . . . have willfully failed to
visit . . .
Tenn. Code Ann. § 36-1-102(1)(A)(i). Tennessee Code Annotated section 36-1-
102(1)(E) states that: “For purposes of this subdivision [36-1-102(1)], ‘willfully failed to
visit’ means the willful failure, for a period of four (4) consecutive months, to visit or
engage in more than token visitation.” Tennessee Code Annotated section 36-1-
102(1)(C) further provides that: “For purposes of this subdivision (1), ‘token visitation’
means that the visitation, under the circumstances of the individual case, constitutes
nothing more than perfunctory visitation or visitation of such an infrequent nature or of
such short duration as to merely establish minimal or insubstantial contact with the
child.” Furthermore, “[a]bandonment may not be repented of by resuming visitation or
support subsequent to the filing of any petition seeking to terminate parental or
guardianship rights or seeking the adoption of a child.” Tenn. Code Ann. § 36-1-
102(1)(F).
-4-
The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under Tennessee
Code Annotated section 36-1-102(1)(A)(i) unless the parent has either “willfully” failed
to visit or “willfully” failed to support the child for a period of four consecutive months
immediately preceding the filing of the petition to terminate his or her parental rights. In
In re Audrey S., this Court discussed willfulness in the context of termination of parental
rights cases:
In the statutes governing the termination of parental rights, “willfulness”
does not require the same standard of culpability as is required by the penal
code. Nor does it require malevolence or ill will. Willful conduct consists
of acts or failures to act that are intentional or voluntary rather than
accidental or inadvertent. Conduct is “willful” if it is the product of free
will rather than coercion. Thus, a person acts “willfully” if he or she is a
free agent, knows what he or she is doing, and intends to do what he or she
is doing. . . . .
The willfulness of particular conduct depends upon the actor’s
intent. Intent is seldom capable of direct proof, and triers-of-fact lack the
ability to peer into a person's mind to assess intentions or motivations.
Accordingly, triers-of-fact must infer intent from the circumstantial
evidence, including a person's actions or conduct.
In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005 (internal citations and
footnotes omitted). “Whether a parent failed to visit or support a child is a question of
fact. Whether a parent’s failure to visit or support constitutes willful abandonment,
however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d 636, 640
(Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007)). As previously discussed, this Court reviews questions of law de novo with no
presumption of correctness. Id.
In its order terminating Appellant’s parental rights, the trial court made the
following relevant findings concerning abandonment by willful failure to visit:
[Appellant] knew at all times where his son was living, and knew at all
times that his son was in the custody of [Appellees]. [Appellant] not only
knew the address, he also knew the [Appellees’] phone numbers.
***
[Appellant] also had the knowledge and ability to send letters and /or other
correspondence to [Appellees] requesting in writing to see his child or to
spend time with his child. [Appellant] chose not to do so. [Appellant’s]
-5-
occasional “pop up” visits were both inconsistent and unannounced. Even
in the light most favorable to [Appellant], he visited, at most, seven times
for the period from April 2013 through December [7], 2016. Therefore,
during a period of about 32 months, considering the evidence most
favorable to [Appellant], he visited the child less than once every four and a
half months. Furthermore, [Appellant] visited with the child, in the light
most favorable to his testimony, for a period of no more than an hour to an
hour and a half. However, the court finds the testimony of [Appellees] to
be in agreement on this issue that each of [Appellant’s] visits lasted no
more than 30-45 minutes during each of his visits. Therefore, if he visited
seven times, he spent a total of less than six hours with his child over more
than 32 months.
***
This action or inaction on the part of [Appellant] was always willful and
voluntary. He knew at all times where his son was, he made the choice to
do what he did, and was well aware of his options. . . . [Appellant] made
the willful choice to only visit a very limited number of times for a very
limited period of time. [Appellant] was not prevented by [Appellees] from
performing his duties as a parent to visit his child . . . . [Appellant] simply
chose to have no more relationship with his child than he did. There was
no climate of hostility between [Appellees] and [Appellant].
***
The court finds that this record fully supports the determination that
[Appellant’s] failure to visit [T.N.] was willful. The court further finds that
the very limited visits that [Appellant] had with [T.N.] were minimal, and
at best, only token.
Turning to the record, the petition to terminate Appellant’s parental rights was
filed on December 8, 2016; therefore, the relevant four-month time period for this ground
is from August 7, 2016 to December 7, 2016. There is some dispute as to whether
Appellant visited T.N. during the relevant period. Toyetta E., whom the trial court found
“extremely credible,” testified that Appellant did not visit T.N. during the relevant time
period. Both Brent E. and Appellant testified that Appellant visited at least two times
during the relevant time period. However, Brent E. later conceded that he had been
confused about the dates. Even if we allow, arguendo, that Appellant visited T.N. twice
between August 7, 2016 and December 7, 2016, the record is clear that Appellant’s visits
were always short, i.e., 45 minutes to one-and-one-half hours at most. In this regard, the
record clearly and convincingly supports the trial court’s finding that, over a period of
thirty-two months, Appellant spent less than six hours with the child. Furthermore, there
-6-
was no pattern to Appellant’s visits. By his own testimony, Appellant would “pop up”
for a visit whenever he felt like doing so. Appellees did not deny him these visits, but we
cannot conclude that these visits established any meaningful relationship between
Appellant and T.N. Accordingly, we conclude that the record clearly and convincingly
establishes that Appellant’s visits were no more than token in that they were “of such an
infrequent nature or of such short duration as to merely establish minimal or insubstantial
contact with the child.” Tenn. Code Ann. § 36-1-102(1)(C). Therefore, we affirm the
trial court’s termination of Appellant’s parental rights on the ground of abandonment by
willful failure to visit.
V. Best Interest
When at least one ground for termination of parental rights has been established,
the petitioner must then prove by clear and convincing evidence that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 2004). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). The focus shifts to the child’s
best interest. Id. at 877. Because not all parental conduct is irredeemable, Tennessee’s
termination of parental rights statutes recognize the possibility that terminating an unfit
parent’s parental rights is not always in the child’s best interest. Id. However, when the
interests of the parent and the child conflict, courts are to resolve the conflict in favor of
the rights and best interest of the child. Tenn. Code Ann. 36-1-101(d). Further, “[t]he
child’s best interest must be viewed from the child’s, rather than the parent’s,
perspective.” Moody, 171 S.W.3d at 194.
The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. As is
relevant to the instant case, these factors include, but are not limited to, the following:
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
***
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
***
(5) The effect a change of caretakers and physical environment is likely to
have on the child's emotional, psychological and medical condition;
-7-
Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a single factor
or other facts outside the enumerated statutory factors may dictate the outcome of the best
interest analysis. In re Audrey S., 182 S.W.3d at 877.
In its order terminating Appellant’s parental rights, the trial court made the
following findings concerning T.N.’s best interest:
The court finds that [T.N.] has been in the home of [Appellees] since
April of 2013. The court finds that [T.N.’s] sibling live in the [Appellees’]
home with him. The court finds that [T.N.] has bonded with both his
siblings as well as to the [Appellees]. For over four (4) years, this child has
enjoyed the consistency of the [Appellees’] home and the routine with his
siblings, and [Appellees]. This child . . . has been taken care of by the
[Appellees] and provided not only a stable home, but a loving, caring and
nurturing home for the last four years of his young life. All of the child’s
needs are being met . . . . The child refers to [Appellees] as his mother and
dad.
***
The court finds that it would be extremely detrimental and harmful, both
emotionally and physically, to remove this child from the [Appellees’]
home at this point. Therefore, the court finds that it is in the best interest of
this child to terminate the parental rights of [Appellant]. . . .
Turning to the record, there does not seem to be a substantial bond between
Appellant and T.N. Toyetta E. testified that, although the child recognizes Appellant, he
remains standoffish when Appellant visits. Furthermore, when asked how T.N. reacts to
Appellant’s visits, Toyetta E. testified:
A. He would act out.
Q When you say act out kind of flesh that out for the Court. What would
that consist
of?
A He would kind of regress back to the way [he was] when [he] came [to
live with Appellees]. He would get real destructive. He would get real
smart.
Q You say destructive. What are some of the things the child would do that
were destructive?
-8-
A Tear his toys apart.
Q I know there were only a few visits you testified to but was this after
each visit?
A Yes.
Q And how long would it take you to get the child back to normal?
A About a day.
Furthermore, as found by the trial court, the record clearly shows that T.N. has a
strong bong with Appellees. He calls them “mom” and “dad.” In addition, he has a bond
with his siblings, who also live with Appellees. From the record, T.N. is active in school
and church activities. Appellees ensure that T.N. gets all the medical attention he needs.
From the record, it is clear that T.N. is well adjusted and well cared for in Appellees’
home. From the totality of the circumstances, we agree with the trial court that to remove
T.N. from the only stable home he has ever known would be detrimental to his well-
being. Accordingly, we conclude that there is clear and convincing proof in the record to
support the trial court’s finding that termination of Appellant’s parental rights is in the
child’s best interest.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s order terminating Appellant’s
parental rights to T.N. We remand the case for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed to the
Appellant, Ervin T. and his surety, for all of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
-9-
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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 282 WAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
DEON COLEMAN, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 21st day of December, 2016, the Petition for Allowance of
Appeal is DENIED.
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PD-0175-15
PD - 0 1 7 5 - 1 5 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/12/2015 6:20:10 PM
Accepted 2/13/2015 9:51:35 AM
ABEL ACOSTA
CLERK
PD NO. qla sJreA
PC 2/zstJzpi^
In The Texas Court Of Criminal Appeals
Austin,Texas
JOSE GUADALUPE MARTINEZ,
FILED IN Defendant-Appellant,
COURT OF CRIMINALAPPEALS
vs.
February 13, 2015
ABELACOSTA, CLERK THE STATE OF TEXAS,
Plaintiff-Appellee.
MOTION FOR EXTENSION OF TIME TO FILE
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS, AUSTIN, TEXAS:
NOW COMES JOSE GUADALUPE MARTINEZ, by and through his
undersigned attorneys, and pursuant to Tex.R.App.P. 10.5(b), respectfully moves this
Honorable Court for an extension of time, to Wednesday, March 18,2015, to file his
Petition For Discretionary Review. In support ofthis request, Mr. Martinez would
show this Honorable Court as follows.
Statement Of The Case
Petitioner Jose Guadalupe Martinez was charged in a Superseding Indictment with
two counts of sexual assault of a child, in violation of TEX. PENAL CODE § 22.01. Mr.
Martinez pleaded not guilty to the charges, and his trial began on October 22, 2012, in the
38th Judicial District with the Honorable Camille DuBose presiding. On October 25, 2012,
the jury found Mr. Martinez guilty of each count. Mr. Martinez tried the question of his
punishment to a jury which, on October 26, 2012, returned a punishment verdict
recommending a 5-year term of confinement on Count One, and a 10-year term of
confinement on Count Two. Judge DuBose entered judgment that same day, and ordered
that the sentences be cumulated for a total term of 15 years' confinement in the Texas
Department of Criminal Justice, Institutional Division.
On October 31, 2012, Mr. Martinez filed a timely Notice of Appeal. On October 29,
2014, the Fourth Court affirmed Mr. Martinez's convictions inanunpublished Memorandum
Opinion. Mr. Martinez sought to petition the Fourth Court for rehearing. The Fourth Court
set a due date ofJanuary 16,2015, with no further extensions. On January 26, 2015, counsel
sought to file a 37-page petition in the Fourth Court, accompanied by a motion for leave to
file an oversized petition, and a motion for leave to file the petition out-of-time under TEX.
R. APP. P. 2 and 48.9.' The Court declined to exercise its discretion to permit the filing in
an order entered January 28, 2015.
II.
Request For Extension Of Time To File
A Petition For Discretionary Review
For the reasons which follow, counsel respectfully request a thirty-day extension of
time, to Wednesday, March 18, 2015, to file a Petition For Discretionary Review in Mr.
Martinez's behalf. This is Mr. Martinez's first request for an extension of time.
'On direct appeal, Mr. Martinez in two grounds argued that he was denied his Due
Process right to present a defense at trial through the trial court's extreme limitations on
cross-examination, limitations so severe that Mr. Martinez was deprived of his
constitutional right to confront and cross-examine his accusers. These issues were fully
preserved in the trial court. In its opinion of October 29, the Fourth Court declined to
address Mr. Martinez's constitutional issues on the ground that counsel had not addressed
each ruling of the trial court, pointing out how each ruling was "clearly erroneous."
Counsel was unaware that there were any defects in her briefing, even through oral
argument, where she argued Mr. Martinez's constitutional claims without any indication
from the Court that there was a problem. The underlying trial record was long, lengthy
proffers and bills of exception were made throughout, and the court's numerous rulings
during the testimony ofthree witnesses were often on more than one ground. In the
petition, counsel sought to remedy the defects described by the Court, and asked the Court
to consider that the task was long and unusually difficult. Counsel required 37 pages to
identify each ruling ofthe trial court, and to explain how each ruling was clearly
erroneous, usually on more than one basis.
III.
Basis Of Request
As so often seems to happen, all of counsel's briefing obligations have due
dates within the next two weeks. Counsel has an opening brief due tomorrow,
February 13,2015, in United States v. JoseRangel, Appeal No. 14-50815,which she
is just completing. Counsel has two state appellate cases, with opening briefs due on
March 2,2015. Andres Solis Vielma vs. StateofTexas, Appeal No. 04-14-00742-CR;
and David Charles vs. StateofTexas, Appeal No. 04-14-00761-CR. Both have long
records. Counsel hopes to complete Mr. Vielma's opening brief for filing on that
date. We believe that one volume Mr. Charles's record may not have been
transcribed.
In seeking discretionary review, Mr. Martinez will ask for reliefon the merits
of his case, but will also seek a remand to the Fourth Court under Tex. R. App. P.
45.1, as his substantial constitutional claims were not addressed there.
PRAYER
FOR ALL OF THESE REASONS, JOSE GUADALUPE MARTINEZ
respectfully prays that this Honorable Court will grant him an extension of time to
Wednesday, March 18, 2015, to file his Petition For Discretionary Review.
Respectfully submitted,
NANCY B. BAROHN
1202 South Alamo Street
San Antonio, Texas 78210
(210) 226-4263
(913) 302-6708 (cell phone)
Texas Bar Number: 01796500
[email protected]
MEGAN V. COOK
Cook and Cook Law Firm
115 East Travis, Suite 1620
San Antonio, Texas 78205
(210)271-2800
Texas Bar Number: 24065072
cookandcooklaw(a> gmail.com
Attorneysfor Mr. Jose Guadalupe Martinez,
Petitioner-Appellant
By: /s/: Nancy B. Barohn
NANCY B. BAROHN
CERTIFICATE OF SERVICE
I certify that I served a true and correct copy of the foregoing motion by prepaid, first-
class, United States mail on:
Mr. Danny Kindred
District Attorney for the
38th Judicial District
3102 AvenueG
Hondo, Texas 78861
Mr. Edward Shaughnessy, III
Attorney at Law
206 East Locust Street
San Antonio, Texas 78212
- on this the 12th day of February, 2015.
Is/: Nancy b. Barohn
NANCY B. BAROHN
34X ^
Jfourtj Court of Appeal*
i£>an Antonio, (Kexas;
MEMORANDUM OPINION
No. 04-12-00739-CR
Jose Guadalupe MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 38th Judicial District Court, Real County, Texas
Trial Court No. 2010-1132-DR
The Honorable Camile G. Dubose, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: October 29, 2014
AFFIRMED
Jose Guadalupe Martinez appeals his convictions for sexual assault of a child. He contends
the trial court erred by denying his motion to suppress his oral and written confessions, erred in
refusing to submithis requested instruction on the voluntariness of those confessions, and violated
his due process right to present a meaningful defense. He also asks this court to determine whether
certain records that were submitted to the trial court in camera and subsequently sealed contained
Brady material. We affirm.
04-12-00739-CR
Background <-
When he was sixteen-years old, the complainant made an outcry to a counselor about two
instances of sexual conduct with Martinez. The outcry occurred at a facility called Pathways, a
juvenile treatment center where behavioral and psychological issues are addressed. The outcry was
reported to the Real County Sheriff, who determined that his office should not lead the
investigation because he was a personal friend ofthe complainant's family and Martinez's family.
Instead, he asked Wayne Springer, an investigator with the Real County District Attorney's office
to lead the investigation. In a forensic interview observed by Springer, the complainant told the
interviewer that he had engaged in oral sex with Martinez on two occasions.
Sheriff Brice called Martinez and asked him to meet with Springer at the courthouse for an
interview. Martinez was not informed of hisMiranda rights or his rights under the Texas Code of
Criminal Procedure prior to this interview. During the interview, Martinez told Springer of three
instances of sexual conduct withthe complainant. Thefirst instance Martinez reported occurred at
Martinez's shop. Martinez said the complainant performed oral sex on him. After this admission,
Martinez reported a second instance that occurred when Martinez's family and the complainant's
family were vacationing together. Martinez said the complainant beganto performoral sex on him
but Martinez interrupted and stopped it. Martinez also reported a third instancethat occurred at the
complainant's house. Martinez said the complainant again performed oral sex on him, and
Martinez then penetrated the complainant's anus with his penis. At the end of the interview,
Springer gave Martinez the Miranda and Texas statutory warnings and then asked Martinez to
reduce his oral statements to writing. Martinez did so, and Springer arrested him.
Martinez was charged with two counts of sexual assault against a child. See TEX. Penal
Code Ann. § 22.011(a)(2) (West 2011). One count alleged Martinez intentionally or knowingly
caused the penetration of the complainant's mouth with Martinez's sexual organ. See id.
-2-
04-12-00739-CR
§ 22.011(a)(2)(B). The other count alleged Martinez intentionally or knowingly caused the
penetration ofthe complainant's anus with Martinez's sexual organ. See id. §22.011(a)(2)(A). The
jury convicted Martinez and assessed his punishment at five years' imprisonment for the first
count, and ten years' imprisonment for the second count. The trial court ordered Martinezto serve
his sentences consecutively.
Motion to Suppress
Martinez contends the trial court erred by denying his motion to suppress all oral and
written statements stemming from the interview with Springer. He argues the oral statements
should be suppressed because they were the product of a custodial interrogation and he was not
giventhe warningsrequired by Miranda v. Arizona and article 38.22 ofthe Texas Code ofCriminal
Procedure prior to the interview. Martinez also argues his written statements should have been
suppressed, even though he was given the required warnings before making them, because those
statements were the product of a two-step interrogation process designed to circumvent the
requirements of Miranda and state law.
Under the Fifth Amendment, statements made bya suspect during a custodial interrogation
are inadmissible unless certain warnings were given to the suspect before he makes those
statements. Miranda v. Arizona, 384 U.S. 436, 444^15 (1966); see U.S. CONST, amend. V. Article
38.22 of the Texas Code of Criminal Procedure also requires the suppression of statements made
during a custodial interrogation unless certain statutorily prescribed warnings are given. Tex.
Code Crim. Proc. Ann. art. 38.22 (West Supp. 2014); Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007). The police cannot evade the requirements of Miranda by engaging in a
deliberate two-step interrogation process, whereby the police elicit unwarned statements from a
suspect and then elicitthe same statements after givingthe suspectthe required warnings. Missouri
•3-
04-12-00739-CR
v. Seibert, 542 U.S. 600, 614-17 (2004) (plurality op.); id. at 620-22 (Kennedy, J., concurring in
judgment); Carter v. State, 309 S.W.3d 31,38 (Tex. Crim. App. 2010).
When seeking the suppression of unwarned statements, the defendant bears the burden to
prove a statement was the product of a custodial interrogation. Herrera, 241 S.W.3d at 525; see
Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009) ("Appellant has failed to establish
that he was in custody during the telephone conversation."). Asuspect is in "custody" for Miranda
purposes if a reasonable person would believe that his freedom of movement was restrained to the
degree associated with a formal arrest under the circumstances of the interrogation. Herrera, 241
S.W.3d at 525. This "reasonable person" standard presupposes an innocent person. Dowthitt v.
State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The Court of Criminal Appeals treats the
requirement of "custody" under Miranda consistently with the requirement of custody under
article 38.22. Herrera, 241 S.W.3d at 526.
Two discrete inquiries are necessary for a custody determination: first, what were the
circumstances surrounding the interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.
Id. at 532. "The determination of custody must be made on an ad hoc basis, after considering all
of the (objective) circumstances." Dowthitt, 931 S.W.2d at 255. A suspect may be in custody if
there is probable cause to arrest and law enforcement officers do not tell him he is free to leave.
Id. The officer's knowledge of probable cause must be manifested to the suspect and "[s]uch
manifestation could occurif information substantiating probable cause is related bythe officers to
the suspector by the suspect to the officers." Id. "[C]ustody is established if the manifestation of
probable cause, combined with other circumstances, would lead a reasonable person to believe
that he is under restraint to the degree associated with an arrest." Id.; see Statev. Saenz, 411 S.W.3d
488, 496 (Tex. Crim. App. 2013) (holding the duration of an interrogation and the exercise of
-4
04-12-00739-CR
control over a suspect during an interrogation are circumstances that, when combined with a
manifestation ofprobable cause, may establish an interrogation was custodial).
The trial court's ultimate "custody" determination presents a mixed question of law and
fact. Herrera, 241 S.W.3d at 526. Therefore, we afford almost total deference to a trial court's
custody determination when the questions of historical fact turn on credibility and demeanor. Id.
at 526-27. Conversely, when the questions of historical fact do not turn on credibility and
demeanor, we will review a "custody" determination de novo. Id. at 527. If the trial court's
determination does not turn on credibility or demeanor, we apply "(1) a deferential standard of
review to the trial court's factual assessment ofthe circumstances surrounding the interrogation,
and (2) a de novo review to its ultimate legal determination that appellee was in custody." Saenz,
411 S.W.3d at 494. "[A] question 'turns' oncredibility and demeanor 'when the testimony of one
or more witnesses, if believed, is always enough to add up to what is needed to decide the
substantive issue.'"Id. (quoting Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013)).
Martinez argues that his entire interview with Springer was custodial because Martinez
knew he was the focus of an investigation and because Springerhad probable cause to arrest him
at the beginning of the interview based on the complainant's forensic interview. In the alternative,
Martinez argues the interview became custodial at the moment he admitted to the first sexual act
with the complainant because that was a pivotal admission establishing probable cause to arrest.
See Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. [Panel Op.] 1979). While it is true that
a suspect's "pivotal admission" can be a manifestation of probable cause to arrest, see Dowthitt,
931 S.W.2d at 256-57, such a manifestation is not sufficient to show Martinez's interrogation was
custodial without the existence of other factors. See Saenz, 411 S.W.3d at 496; Dowthitt, 931
S.W.2d at 255; Trejos v. State, 243 S.W.3d 30, 46^17 (Tex. App.—Houston [1st Dist.] 2007, pet.
refd) ("We conclude that appellant's statements made during the initial interview . . . provided
-5-
04-12-00739-CR
sufficient probable cause to arrest him However, we conclude that the other circumstances
present, when viewed in a light most favorable to the trial court's ruling, are sufficient to show
that he was not in custody.").
The trial court's findings of fact support the trial court's conclusion thatMartinez was not
in custody during the interview with Springer for several reasons. First, the trial court found that
there was no evidence that Martinez was coerced to be at the interview and that the interview
between Martinez and Springer was "voluntarily initiated." See Oregon v. Mathiason, 429 U.S.
492,495 (1977) (per curiam) (holding defendant's interrogation noncustodial where he voluntarily
came tothe police station, was informed he was not under arrest, was questioned for a half hour,
and left the station afterwards). Second, the trial court found the entire interview lasted only fifty
minutes and the time between the beginning of the interview and Martinez's first admission to
sexual conduct with the complainant was twelve minutes. See id.; cf. Dowthitt, 931 S.W.2d at256-
57 (holding twelve hours between start of defendant's interrogation and his incriminating
admission was a factor supporting conclusion defendant was in custody). Third, the trial court
found there was no evidence that Martinez was physically prevented from leaving or that
Martinez's freedom of movement was restricted in any way during the interview. Cf. Dowthitt,
931 S.W.2d at 256-57 (holding the fact that the defendant was accompanied by police officers on
trips to the restroom and the fact that the police ignored the defendant's requests to talk with his
wife were factors supporting conclusion defendant was in custody).
We hold Martinez failed to meet his burden to establish he was in custody when he made
his oral and written statements to Springer. Because Springer was not obligated to give Martinez
any warnings during the interview, Miranda and article 38.22 did not require the suppression of
his oral statements. Furthermore, because Springer was not required to give warnings at any time
during Martinez's noncustodial interrogation, we need not consider whether Martinez's written
-6-
04-12-00739-CR
statements were the product ofatwo-step interrogation process designed to evade the requirements
of Miranda.
Jury Charge
At the charge conference, Martinez requested a jury instruction on the general
voluntariness of his statements under article 38.22, section 6 of the Code of Criminal Procedure.
(Tex. Code Crim. Proc. art. 38.22, § 6.) The trial court did not submit a section 6 instruction.
Section 6 is essentially independent ofthe other sections contained within Article 38.22,
and it sets out the procedures for litigating voluntariness claims in all cases where a question is
raised as to the voluntariness ofa statement ofan accused. Oursbourn v. State, 259 S.W.3d 159,
174 (Tex. Crim. App. 2008); State v. Terrazas, 4 S.W.3d 720, 724 (Tex. Crim. App. 1999). Claims
ofinvoluntariness under Article 38.22 can be, but need not be, predicated on police overreaching,
andthey could involve "sweeping inquiries into the stateof mind of a criminal defendant who has
confessed." Oursbourn 259 S.W.3d at 172. "Under Articles 38.21 and 38.22 and their
predecessors, fact scenarios that can raise a state-law claim of involuntariness (even though they
do not raise a federal constitutional claim) include the following: (1) the suspect was ill and on
medication and that fact may have rendered his confession involuntary; (2) the suspect was
mentally retarded and may not have "knowingly, intelligently and voluntarily" waived his rights;
(3) the suspect "lacked the mental capacity to understand his rights"; (4) the suspect was
intoxicated, and he "did not know what he was signing and thought it was an accident report";
(5) the suspect was confronted by the brother-in-law of his murder victim and beaten; (6) the
suspect was returned to the store he broke into 'for questioning by several persons armed "with
six-shooters.'"" Id. at 172-73 (internal citations omitted). A defendant is entitled to a general
voluntariness instruction if he has raised a question of the voluntariness of his statement and a
-7-
04-12-00739-CR
reasonable jurycould find that the facts, disputed or undisputed, rendered the defendant unable to
make a voluntary statement.1 Id. at 176.
Martinez argues he was entitled to his requested instruction because there was evidence at
trial that Springer lied to Martinez and made false promises during the interview and there was
evidence he was "suicidal" at the end ofthe interview. He also argues that he suffered some harm
from the trial court's refusal to submit the instruction.
At trial, Springer admitted that he lied to Martinez during the interview and basically told
him that he would not be in trouble so long as any sexual encounters with the complainant were
consensual. Although the Court ofCriminal Appeals has not explicitly ruled on the question, ithas
indicated that a police officer's lies during an interview are not evidence supporting a section 6
instruction. See Oursbourn, 259 S.W.3d at 181-82 (considering evidence the defendant was lied
to by the police about the evidence against him in the context of an article 38.23 instruction, but
not an article 38.22 general voluntariness instruction). Martinez does not provide any authority
that the lies told by Springer demonstrate the kind of police overreaching that can support the
submission of a general voluntariness instruction under state law.
Martinez also argues that Springer's testimony showed Martinez's mental state was
affected because he was "suicidal." Springer testified that at the end of the interview he asked
Martinez what should be done to someone who does things like this. Martinez replied they should
be severely punished. Springer testified he thought that this response was shocking and unusual,
and he decided to arrest Martinez at that time because he thought he might hurt himself or
1The State argues the trial court did not err in denying the instruction because the interview was noncustodial. We
reject this argument because the Court of Criminal Appeals has held that section 6 "applies to both an accused's
custodial and non-custodial statements because it provides that only 'voluntary' statements may be admitted."
Oursbourn, 259 S.W.3d at 171; see also Terrazas, 4 S.W.3d at 727 (overruling prior precedent limiting section 6's
applicability to custodial statements).
-8-
04-12-00739-CR
somebody else. On cross-examination, Springer expressly declined to characterize Martinez as
suicidal at the end of the interview. We conclude Springer's testimony was insufficient evidence
from which areasonable jury could determine Martinez's statements were involuntarily made. Cf
Oursbourn, 259 S.W.3d at 181 (holding general voluntariness instruction should have been
submitted where evidence showed defendant was initially declared incompetent to stand trial two
weeks after his interrogation and confession, a psychologist testified defendant was manifesting
symptoms of his bipolar disorder during interrogation, anddefendant's mother testified defendant
was in a "manic" state shortly before and afterhis arrest).
We hold Martinez was not entitled to a general voluntariness instruction.
Due Process
In his first two issues for review, Martinez complains the trial court erroneously restricted
his examination of three witnesses and the trial court's restrictions were so severe that his
constitutional right to present a meaningful defense under the Sixth and Fourteenth Amendments
was violated.
"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Holmes
v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690
(1986)). "[T]here are two distinct scenarios in which rulings excluding evidence might rise to the
level of a constitutional violation: 1) a state evidentiary rule which categorically and arbitrarily
prohibits the defendant from offering otherwise relevant, reliable evidence which is vital to his
defense; and 2) a trial court's clearly erroneous ruling excluding otherwise relevant, reliable
evidence which forms such a vital portion of the case that exclusion effectively precludes the
defendant from presenting a defense." Wiley v. State, 74 S.W.3d 399,405 (Tex. Crim. App. 2002)
-9-
04-12-00739-CR
(internal citations and quotation marks omitted). "In the first category, the constitutional infirmity
isin the arbitrary rule ofevidence itself." Id. "In the second category, the rule itself isappropriate,
but the trial court erroneously applies the rule to exclude admissible evidence to such an extent
that iteffectively prevents thedefendant from presenting his defensive theory." Id. "Inother words,
the erroneous ruling goes to the heart of the defense." Id.
Martinez complains that the trial court prohibited him from asking any witness about any
specific instances of thecomplainant's conduct or background, from asking any questions to show
the context in which the complainant's outcry was made, from asking any questions to rebut the
false impressions of the circumstances surrounding the complainant's outcry, and from exploring
any matter which would show the complainant's bias, motive, or self-interest at the time of the
outcry except through general character questions. Martinez's complaint applies to his cross-
examination of the complainant and the complainant's father. It also applies to his direct
examination of his own witness—namely, the person to whom the complainant made his outcry.
Martinez's brief contains a summary of the proffer hearings for all three witnesses and the
trial court's reasons for excluding the evidence. Martinez doesnot argue that any stateevidentiary
rule arbitrarily deprived him of the opportunity to offer otherwise relevant and reliable evidence
that was vital to his defense. Instead, Martinez appearsto argue the trial court erred in every ruling
it made during the proffer hearings and that these erroneous rulings prevented him from presenting
a meaningful defense.
Martinez, however, does not explain why each ruling made by the trial court was "clearly
erroneous." Instead, he cites and discusses authority for broad evidentiary propositions that
evidence of a witness's bias or motive, evidence to correct a false impression, and contextual
evidence are admissible. Although some of Martinez's proffered evidence may have been
admissible to show bias or motive or for some other evidentiary purpose, that alone does not
-10-
04-12-00739-CR
establish that the trial court clearly erred by excluding the evidence. See Delaware v. Van Arsdall,
475 U.S 673, 679 (1986) (holding a trial court retains "wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion ofthe issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant."); Hammer v. State, 296 S.W.3d 555,
561 (Tex. Crim. App. 2009) ("Generally, the right to present evidence and to cross-examine
witnesses under the Sixth Amendment does not conflict with the corresponding rights under state
evidentiary rules" and "[t]hus, most questions concerning cross-examination may be resolved by
looking to the Texas Rules of Evidence."). Many of the trial court's rulings were based on its
conclusions that the proffered evidence was not relevant or was otherwise barred under other
evidentiary rules such as Rule 403, Rule 404, or Rule 608. But Martinez fails to argue orexplain
how each one of the trial court's rulings excluding his proffered evidence was "clearly
erroneous"—a necessary prerequisite to prevail on his due process claim. See Wiley, 74 S.W.3d at
406. We hold Martinez has failed to present his due process argument in a waythat would allow
this court to conclude his constitutional right to present a meaningful defense was violated. See
Allen v. State, No. 14-12-01086-CR, 2014 WL 3587372, at *8 (Tex. App.—Houston [14th Dist.]
July 22, 2014, pet. filed) (mem. op., not designated for publication) ("Wiley is of no assistance to
appellant as appellant has not established that the trial court clearly erred when it sustained the
State's hearsay objection to this testimony.").
Sealed Records
Finally, Martinez asks this court to examine certain sealed records for Brady material. See
Brady v. Maryland, 373 U.S. 83 (1963) (holding the State has a duty to disclose material
exculpatory evidence to the defense). Those records contain the complainant's medical records
from Laurel Ridge Hospital where he stayed afterthe sexual encounters but before his outcry. The
-11 -
04-12-00739-CR
State offered the records to the trial court for an in camera inspection. The trial court inspected the
records and determined they did not contain Brady material. We have examined the records, and
we hold the trial court correctly determined that there is no information in those records which
Brady would have required the State to disclose.
Conclusion
We affirmthe trial court's judgments on each count.
Luz Elena D. Chapa, Justice
Do Not Publish
12-
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IN THE COURT OF APPEALS OF IOWA
No. 19-1246
Filed September 25, 2019
IN THE INTEREST OF J.N.,
Minor Child,
D.K., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District court for Johnson County, Jason A. Burns,
District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Don W. Schroeder, Iowa City, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Brian D. Johnson of Jacobsen, Johnson, & Wiezorek, P.L.C., Cedar Rapids,
attorney and guardian ad litem for child.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
2
DOYLE, Judge.
In July 2019, the juvenile court terminated D.K.’s parental rights to J.N., her
youngest child born in 2017, under Iowa Code section 232.116(1)(h) (2019).1 The
mother appeals the order, asserting that the State failed to prove the ground for
termination and that termination is not in the child’s best interests. She also
contends the juvenile court should have granted her another six months to work
toward reunification. Our review is de novo. See In re L.T., 924 N.W.2d 521, 526
(Iowa 2019).
Under Iowa Code chapter 232, parental rights may be terminated if: (1) a
“ground for termination under section 232.116(1) has been established” by clear
and convincing evidence, (2) “the best-interest framework as laid out in section
232.116(2) supports the termination of parental rights,” and (3) none of the
“exceptions in section 232.116(3) apply to preclude termination of parental rights.”
In re A.S., 906 N.W.2d 467, 472-73 (Iowa 2018).2 The juvenile court can also defer
termination of parental rights if “specific factors, conditions, or expected behavioral
changes” lead the court to “determin[e] that the need for removal of the child from
the child’s home will no longer exist at the end of [an] additional six-month period.”
Iowa Code § 232.104(2)(b). In determining whether termination of parental rights
is in a child’s best interests, we give “primary consideration to the child’s safety, to
the best placement for furthering the long-term nurturing and growth of the child,
1
The father does not appeal.
2
Although the juvenile court must address all three steps in terminating a parent’s parental
rights, we will not address any step on appeal a parent does not specifically challenge.
See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010); see also Iowa Code § 232.116(1)-(3).
3
and to the physical, mental, and emotional condition and needs of the child.” Id.
§ 232.116(2).
“A parent does not have an unlimited amount of time in which to correct his
or her deficiencies.” In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997).
The “legislature has carefully constructed a time frame to provide a balance
between the parent’s efforts and the child’s long-term best interests.” In re D.W.,
791 N.W.2d 703, 707 (Iowa 2010). After statutory timelines have run, the
children’s best interests are promoted by termination. See In re S.N., 500 N.W.2d
32, 35 (Iowa 1993). Simply put, children are not equipped with pause buttons, and
they cannot wait indefinitely for stable parents. See In re A.M., 843 N.W.2d 100,
112 (Iowa 2014) (noting children must not be deprived permanency on the hope
that someday the parent will be able to provide a stable home); D.W., 791 N.W.2d
at 707.
Iowa Code section 232.116(1)(h) allows the court to terminate parental
rights if a child (1) is three years old or younger, (2) has been adjudicated a child
in need of assistance (CINA), (3) has been out of the parent’s custody for at least
six of the last twelve months and any trial period at home has been less than thirty
days, and (4) cannot be returned to the parent at present without continued risk of
adjudicatory harm. The mother does not dispute the State proved the first three
elements; indeed, those elements are clear from the record. Rather, she
challenges only the element that the children cannot be returned to her at present.
See id. § 232.116(1)(h)(4). Upon our de novo review, we find the State proved
that element of paragraph (h) with clear and convincing evidence.
4
As the juvenile court noted in its July 2019 ruling, the mother has a history
of involvement with the Iowa Department of Human Services (DHS):
Over the last two years, [the mother] has not been able to
demonstrate stability or sobriety. Just prior to the birth of [her
youngest child] . . . , a hair test was done on [the mother] by DHS.
This test showed that she was positive for . . . methamphetamine.
The child was removed from the mother’s care in August 2018 after the child
and his older siblings—not at issue—were left unsupervised and the mother could
not be contacted. The child had been in a dirty diaper for more than twenty-four
hours, and all the children were outside and dressed inappropriately. After
removal, the child’s hair was tested and found positive for methamphetamine. The
child was adjudicated a CINA. The child was placed in family foster care, where
he has since remained.
At the termination-of-parental-rights hearing, the mother testified she did not
believe she currently had a drug problem. She claimed she tested positive for
methamphetamine in 2017 because she was in an area where methamphetamine
had been used. She maintained her children’s positive test results were caused
by her boyfriend’s friend’s use of methamphetamine while she and the children
were staying at that friend’s home. She was arrested in November 2018 for
possession of methamphetamine; she denied that the methamphetamine and
steel pipe found in a backpack left where she was sitting was hers, though she
admitted the wallet inside the bag was hers. The mother only admitted she had
used methamphetamine for a time before the child was born and again on
December 31, 2018, or January 1, 2019.
5
From initiating the case in August 2018 to the termination-of-parental-rights
hearing in May 2019, the mother had made three attempts at substance-abuse
treatment—two inpatient and one intensive outpatient programs—but did not
complete any of the programs. She had stopped attending the last program
altogether by the end of January 2019. She also stopped participating in drug
testing—which the juvenile court has ordered—at the end of January, claiming a
sweat-patch test that was positive for methamphetamine was a false positive.
At the termination-of-parental-rights hearing, the mother still questioned
whether she needed substance-abuse treatment, but she testified she recently
was accepted into another inpatient program in a neighboring city and was moving
there that day. The mother was unsure of the program’s conditions for her living
there or the overall details, but she believed the child could be placed there with
her immediately. She thought that this new program would be helpful—unlike the
prior programs—and that she was in a better head-space than she had been. She
requested six more months for reunification.
The juvenile court was not persuaded:
To put it bluntly, her excuses and explanations, in the court’s opinion,
are simply that—excuses. She first started using marijuana at age
eleven and methamphetamine at age seventeen. She associates
with people known to be methamphetamine users and, in the case
of [the child’s] father, manufacturers of methamphetamine.
Throughout her history with DHS, methamphetamine has been a
constant concern. Her children have repeatedly tested positive for
methamphetamine when left in her care. Though she rarely drug
tests, some of her results have returned positive. She admits to
recent usage of methamphetamine. She has failed each treatment
program that she has started. Though she qualifies and recants her
statements now, DHS has reported that she has expressed
frustration with the drug testing requirements and stated that
methamphetamine should be legal. Her behaviors and associations
clearly demonstrate to the court that she is a user of
6
methamphetamine and she has refused or been unable to achieve
treatment and sobriety while under DHS supervision.
Upon our de novo review of the record, we agree with the juvenile court’s
assessment. The mother’s lack of participation in addressing her substance-abuse
issues as well as her mental-health issues evidence the child could not be returned
to the mother’s care at the present time. And the mother waited until just before
the termination-of-parental-rights hearing to act, and nothing in the record supports
the mother’s claim that this new program will have a different result, particularly
since she still will not admit to having a problem. We agree with the juvenile court
that the State proved the child could not be returned to the mother’s care at the
present time.
Additionally, considering the child’s safety; the best placement for furthering
the long-term nurturing and growth of the child; and the child’s physical, mental,
and emotional condition and needs, we find termination of the mother’s parental
rights is in the child’s best interests even though the mother and child may share
a bond. We agree with the court-appointed special advocate that the mother “is a
loving and caring parent but has not made the right decisions for [the child’s]
wellbeing.” As the juvenile court stated: “Love, however, is not enough to provide
safety and stability for a child.” This child has need for permanency, and the
statutory time for reunification passed with no progress on the mother’s part. To
delay the child’s permanency in favor of the mother is not in the child’s best
interests. And like the juvenile court, we cannot conclude the need for removal
would no longer exist at the end of another six-month period.
7
Here, the State established by clear and convincing evidence the ground
for termination set forth in Iowa Code section 232.116(1)(h), the record evidences
that termination of the mother’s parental rights is in the child’s bests interests, and
no facts in the record suggest a six-month delay would lead to safe reunification.
So we affirm the juvenile court’s ruling terminating the mother’s parental rights.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-34242
5 FRANKIE L. GARDUÑO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
8 T. Glenn Ellington, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 Jane A. Bernstein, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender
15 Kimberly Chavez Cook, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 FRENCH, Judge.
1 {1} Defendant Frankie L. Garduño appeals from the district court’s judgment,
2 entered pursuant to a jury verdict, for the crimes of attempt to commit armed robbery
3 (firearm enhancement) (Count 1), contrary to NMSA 1978, Sections 30-28-1(B)
4 (1963), 30-16-2 (1973), 31-18-16(A) (1993); and aggravated battery with a deadly
5 weapon (Count 4), contrary to NMSA 1978, Section 30-3-5(C) (1969). Defendant
6 argues that: (1) these convictions violated his constitutional right to be free from
7 double jeopardy; (2) the enhancement of his sentence for attempted armed robbery by
8 one year, pursuant to Section 31-18-16(A), violated his constitutional right to be free
9 from double jeopardy; (3) the district court abused its discretion by denying a
10 severance for the charge of felon in possession of a firearm; (4) the district court erred
11 in excluding evidence of law enforcement bias; (5) there was insufficient evidence to
12 support his convictions; and (6) although the district court merged the charges of
13 assault with intent to commit a violent felony (Count 2 and Count 7), it must enter an
14 order vacating those convictions.
15 {2} On September 26, 2017, we issued a memorandum opinion affirming
16 Defendant’s convictions, but vacating the one-year firearm enhancement on
17 Defendant’s conviction for attempted armed robbery. State v. Garduño, No. A-1-CA-
18 34242, 2017 WL 4604324, ___-NMCA-___, ¶ 2, ___ P.3d ___(Sept. 26, 2017). We
19 relied on State v. Branch, 2016-NMCA-071, 387 P.3d 250, cert. granted, ___-
3
1 NMCERT-___ (No. S-1-SC-35951, July 28, 2016), to hold that the firearm
2 enhancement of Defendant’s sentence violated double jeopardy. Garduño, ___-
3 NMCA-___, ¶ 15. The Supreme Court denied a writ of certiorari on November 28,
4 2017. Order at 1, State v. Garduño, No. S-1-SC-36717 (Nov. 28, 2017). On December
5 18, 2017—after quashing a writ of certiorari in Branch and remanding to this Court
6 for consideration of the Supreme Court’s opinion in State v. Baroz, 2017-NMSC-030,
7 404 P.3d 769, which decided issues related to whether firearm enhancements on
8 sentences for aggravated assault with a deadly weapon violated double jeopardy—the
9 Supreme court remanded this case to this Court for consideration of same. Order at
10 1, State v. Garduño, No. S-1-SC-36687 (Dec. 18, 2017). In Baroz, our Supreme Court
11 noted that “[t]he legislative policy behind the firearm sentence enhancement is that a
12 noncapital felony, committed with a firearm, should be subject to greater punishment
13 than a noncapital felony committed without a firearm because it is more
14 reprehensible.” 2017-NMSC-030, ¶ 27. Because the Legislature intended to authorize
15 an enhanced punishment when a firearm is used in the commission of aggravated
16 assault, the Court held that “[t]he sentence enhancement does not run afoul of double
17 jeopardy.” Id.
18 {3} On remand, we withdraw the memorandum opinion issued on September 26,
19 2017, and substitute this opinion in its stead.
4
1 BACKGROUND
2 {4} As noted in our original opinion, this is a memorandum opinion and the parties
3 are familiar with the facts. Thus, this background section is limited to the factual and
4 procedural events that are required to place our analysis in context. Additional facts
5 will be provided as necessary.
6 {5} Cody Tapie and Michelle Radosevich were getting gas at an Allsup’s
7 convenience store in Española, New Mexico. Tapie’s driver door faced the gas pump
8 and Radosevich’s door faced the curb. Tapie was outside the vehicle pumping gas,
9 when a black Ford F-150, driven by Joseph Vigil, pulled up directly behind Tapie’s
10 vehicle. Defendant emerged from the passenger side of the truck, approached
11 Radosevich, “lean[ed] in,” and began speaking to her.
12 {6} Defendant pointed his gun at Radosevich and demanded money. Radosevich
13 advised Defendant that she had no money, having concealed her purse by the driver’s
14 seat. After being told that Radosevich had no money, Defendant “turned his attention
15 to [Tapie].” From across the car, Tapie asked Defendant what he was doing, and
16 Defendant pointed his firearm at Tapie and demanded his money.
17 {7} In response to Defendant’s demand and having focused on him while he was
18 on the other side of the vehicle, Tapie passed his wallet to Defendant “over the car”
19 fearing Defendant would “seriously injure or kill [him].” Defendant seized the wallet
5
1 and ordered that Tapie get back in the car. Once Tapie was back in the car, Defendant
2 again pointed his gun inside the vehicle. Defendant turned his attention back to
3 Radosevich and demanded money from her.
4 {8} In an attempt to deflect attention from Radosevich, Tapie offered Defendant his
5 sunglasses, which Defendant seized. Defendant again demanded money from
6 Radosevich and then demanded her purse. Radosevich refused to comply. Frustrated
7 with the resistance he was receiving, Defendant opened the passenger door and began
8 striking Radosevich in the head and forehead with the barrel of his firearm as many
9 as five times. The physical attack on Radosevich continued until Defendant was
10 subdued by Tapie and other patrons at the station.
11 DISCUSSION
12 I. Double Jeopardy
13 {9} The appellate courts “generally review double jeopardy claims de novo.” State
14 v. Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737; see State v. Saiz,
15 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521 (“Double jeopardy presents a
16 question of law, which [the appellate courts] review de novo.”), abrogated on other
17 grounds by State v. Belanger, 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d
18 783. “The constitutional prohibition against double jeopardy protects against both
19 successive prosecutions and multiple punishments for the same offense.” State v.
6
1 Armijo, 2005-NMCA-010, ¶ 15, 136 N.M. 723, 104 P.3d 1114 (internal quotation
2 marks and citation omitted); see U.S. Const. amend. V; see also N.M. Const. art. II,
3 § 15.
4 A. Attempted Armed Robbery and Aggravated Battery With a Deadly
5 Weapon
6 {10} Defendant argues that his convictions for attempted armed robbery and
7 aggravated battery with a deadly weapon violate double jeopardy because they impose
8 multiple punishments for the same conduct. In the present case, “we are faced with
9 multiple punishments, . . . [a] double description case.” Armijo, 2005-NMCA-010, ¶
10 15 (internal quotation marks and citation omitted). Because Defendant’s claim is a
11 double description type double jeopardy claim, which involves convictions of multiple
12 statutes based on the same criminal conduct, we apply the analysis set out in Swafford
13 v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. For double description
14 claims, we follow the two-part test set out in Swafford. State v. Bernal, 2006-NMSC-
15 050, ¶ 9, 140 N.M. 644, 146 P.3d 289. We first “examine whether the conduct was
16 unitary, meaning whether the same criminal conduct is the basis for both charges. If
17 the conduct is not unitary, then the inquiry is at an end and there is no double jeopardy
18 violation.” Id. (citation omitted).
19 {11} Defendant argues that his convictions for attempted armed robbery and
20 aggravated battery with a deadly weapon violate this prohibition because his conduct
7
1 was unitary based on the facts and that “[t]his was one series of acts of a similar
2 nature, committed with a single purpose, and which occurred in and around the car
3 over a matter of minutes without interrupting events.” Defendant asserts his acts were
4 unitary because “[t]he ongoing attempted robbery of [Radosevich] never stopped and
5 was ongoing, by virtue of the fact that it was not ‘successful.’ ” The State responds
6 that the conduct was not unitary under the facts and double jeopardy does not apply.
7 We agree that Defendant’s conduct was not unitary.
8 {12} Our analysis begins with an examination of the contours of unitary conduct. As
9 our Supreme Court observed, “[u]nitary conduct is often defined by what it is not.
10 Thus, conduct is not unitary if the defendant commits two discrete acts violative of the
11 same statutory offense, but separated by sufficient indicia of distinctness.” State v.
12 Cooper, 1997-NMSC-058, ¶ 59, 124 N.M. 277, 949 P.2d 660 (internal quotation
13 marks and citation omitted). In analyzing the contours of the “indicia of distinctness,”
14 our courts are to consider “the separation between the illegal acts by either time or
15 physical distance, the quality and nature of the individual acts, and the objectives and
16 results of each act.” Id. (internal quotation marks and citation omitted); see State v.
17 Sotelo, 2013-NMCA-028, ¶ 18, 296 P.3d 1232 (“Independent factual bases may be
18 established by determining whether the acts constituting the two offenses are
19 sufficiently separated by time or space, looking to the quality and nature of the acts,
8
1 the objects and results involved, and the defendant’s mens rea and goals during each
2 act.” (internal quotation marks and citation omitted)). Distinctness may also be
3 established by the “existence of an intervening event[,] . . . [the] defendant’s intent as
4 evidenced by his conduct and utterances[,] . . . [the] number of victims,” and “the
5 behavior of the defendant between [acts.]” Herron v. State, 1991-NMSC-012, ¶ 15,
6 111 N.M. 357, 805 P.2d 624.
7 {13} Regarding whether conduct is unitary, we look for “an identifiable point at
8 which one of the charged crimes had been completed and the other not yet
9 committed.” State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61; see
10 Bernal, 2006-NMSC-050, ¶ 11 (holding that the defendant’s conduct is not unitary
11 where the defendant completes one of the charged crimes before committing the
12 other); State v. Montoya, 2016-NMCA-098, ¶ 21, 384 P.3d 1114 (same), cert. denied,
13 2016-NMCERT-___, ___ P.3d ___ (No. S-1-SC-36067, Sept. 29, 2016); State v.
14 Melendrez, 2014-NMCA-062, ¶ 10, 326 P.3d 1126 (same).
15 {14} In this case we conclude that the attempted armed robbery of Radosevich was
16 separated with a sufficient indicia of distinctness from Radosevich’s aggravated
17 battery by time, the nature of the individual criminal acts, and the objectives of the
18 criminal acts. Specifically, Defendant’s attempted armed robbery of Radosevich was
19 complete before Defendant turned his attention to the armed robbery of Tapie and
9
1 began to use force or threatened force against him. Defendant’s armed robbery of
2 Tapie was complete before Defendant subsequently committed aggravated battery on
3 Radosevich.
4 {15} Our conclusion that Defendant’s offenses were not unitary is also premised on
5 Saiz, which held that “[t]he proper analytical framework is whether the facts presented
6 at trial establish that the jury reasonably could have inferred independent factual bases
7 for the charged offenses.” 2008-NMSC-048, ¶ 30 (internal quotation marks and
8 citation omitted). Given the indicia of distinctness here and with Saiz in mind, we hold
9 that the criminal conduct was not unitary, and thus there was no double jeopardy
10 violation.
11 B. Firearm Enhancement and Merger Issues
12 {16} The district court sentenced Defendant to an additional year of incarceration,
13 pursuant to Section 31-18-16(A). Defendant appeals the enhancement of his sentence
14 for use of a firearm in the attempted armed robbery of Radosevich relying on this
15 Court’s decision in Branch, which has since been withdrawn upon order of remand
16 by the Supreme Court. We consider this issue on remand from the Supreme Court in
17 light of the Court’s disposition in Baroz. See Order at 1-2, State v. Garduño, No. S-1-
18 SC-36687 (Dec. 18, 2017). In Baroz, the defendant was sentenced to a term of
19 eighteen months, followed by one year of parole, for each of his convictions of
10
1 aggravated assault with a deadly weapon. 2017-NMSC-030, ¶ 20. The defendant’s
2 sentences on these counts were each enhanced by one year pursuant to the firearm
3 enhancement statute, Section 31-18-16(A). Baroz, 2017-NMSC-030, ¶ 20. Our
4 Supreme Court rejected the defendant’s contention that the firearm enhancement
5 violates double jeopardy because use of a firearm is an element of the underlying
6 crime, aggravated assault with a deadly weapon. Id. Concluding that the Legislature
7 intended to authorize an enhanced punishment when a firearm is used in the
8 commission of aggravated assault, our Supreme Court held that “[t]he sentence
9 enhancement does not run afoul of double jeopardy.” Id. ¶ 27.
10 {17} Given our Supreme Court’s holding in Baroz, we conclude that the firearm
11 enhancement in this case does not violate double jeopardy. We withdraw our previous
12 holding that the enhancement must be vacated and instead affirm the district court’s
13 ruling that Defendant’s sentence for attempted armed robbery be enhanced by one
14 year pursuant to the statutory firearm enhancement.
15 {18} In regard to Defendant’s convictions on the “merged” alternative counts,
16 Count 2 and Count 7, the same reasoning under double jeopardy applies. Although the
17 district court correctly merged Count 2 and Count 7 with Count 1 and Count 6,
18 respectively, and did not sentence Defendant on those counts, it inadvertently failed
19 to vacate the alternate convictions. Count 2 and Count 7 must be vacated. See State
11
1 v. Santillanes, 2001-NMSC-018, ¶ 28, 130 N.M. 464, 27 P.3d 456 (“[C]oncurrent
2 sentencing does not adequately remedy the imposition of impermissible multiple
3 punishments for a single offense; double jeopardy requires that the lesser offense
4 merge into the greater offense such that the conviction of the lesser offense, not
5 merely the sentence, is vacated.”); see also State v. Mercer, 2005-NMCA-023, ¶ 29,
6 137 N.M. 36, 106 P.3d 1283 (stating that “[i]f, upon retrial, the jury again convicts
7 [the d]efendant of alternatives on any count, one alternative conviction must be
8 vacated”).
9 II. Failure to Sever Felon in Possession Charge Did Not Prejudice Defendant
10 {19} “[T]he standard of review applicable to a severance issue is exceedingly
11 narrow.” State v. Ramming, 1987-NMCA-067, ¶ 24, 106 N.M. 42, 738 P.2d 914. “The
12 decision to grant a severance motion lies within the trial judge’s discretion and will
13 not be overturned on appeal unless the joinder of offenses results in actual prejudice
14 against the moving party.” State v. Garcia, 2011-NMSC-003, ¶ 16, 149 N.M. 185, 246
15 P.3d 1057. “[The d]efendant bears the burden of establishing that he was actually
16 prejudiced by a failure to sever.” Id.
17 {20} Defendant argues that he moved the district court to sever the felon in
18 possession charge thirteen days before trial. However, “the district court denied
19 severance as ‘untimely.’ ” Defendant contends that the district court erred in failing
12
1 to make “an affirmative finding of cross-admissibility” of the evidence pertaining to
2 each charge at separate trials and that admission of the evidence was highly prejudicial
3 to him.
4 {21} Our Supreme Court in Garcia, 2011-NMSC-003, ¶ 19, and State v. Gallegos,
5 2007-NMSC-007, ¶ 41, 141 N.M. 185, 152 P.3d 828, provided ample guidance
6 regarding the factors to be considered in deciding whether a defendant suffered actual
7 prejudice from failing to sever a felon in possession charge at trial.
8 {22} Defendant argues that his “being found guilty on all counts, . . . factual
9 similarities linking the offenses, . . . offenses that are inflammatory in nature, . . . [and]
10 proper jury instructions that adequately make clear to the jury that it must not consider
11 evidence inadmissible to a particular count,” all demonstrate actual prejudice.
12 Gallegos, 2007-NMSC-007, ¶ 41. We disagree.
13 {23} Our review of the record establishes that the State minimally focused on the fact
14 that Defendant was a convicted felon in its opening statement, during its case in chief,
15 or in closing. Moreover, the disclosure of Defendant’s status as a “convicted felon”
16 was appropriately handled by the district court when it read the stipulation of the
17 parties to the jury and by the State at the commencement of the State’s closing
18 argument when the prosecutor discussed the jury instruction relative to Count 5. The
19 stipulation and the second element of the jury instruction are identical: “Defendant,
13
1 in the preceding ten years, was convicted and sentenced to one or more years
2 imprisonment by a court of the United States or by a court of any state[.]”
3 {24} We conclude that the State did not prejudicially intertwine the offenses during
4 Defendant’s trial. See Garcia, 2011-NMSC-003, ¶ 20 (describing how the state
5 “generically mentioned the fact of the prior offenses” and in no way intertwined the
6 evidence of the past felony and the armed robbery charges). “Thus, in order for there
7 to be no prejudice at a trial of joined offenses when the simple and distinct evidence
8 as to each would not be cross-admissible at separate trials, court and counsel must
9 exercise a vigilant precision in speech and action far beyond that required in the
10 ordinary trial.” Gallegos, 2007-NMSC-007, ¶ 40 (internal quotation marks and
11 citation omitted).
12 {25} The limiting jury instruction given by the district court in regard to the charge
13 of felon in possession of a firearm, weighs against a showing of actual prejudice to
14 Defendant. The district court presented the following jury instruction tendered by
15 Defendant:
16 Evidence concerning [D]efendant’s status as a felon was admitted
17 for the limited purpose of consideration for Count 5.
18 You are instructed that you must not consider such evidence for
19 any purpose other than for your consideration of Count 5.
14
1 {26} Here, the district court took the proper step to mitigate the impact of the prior
2 felony evidence with its limiting instruction. We conclude, as our Supreme Court did
3 in Garcia, “the trial judge’s instruction to consider each offense separately adequately
4 addressed any concern that the jury might apply the evidence of prior felonies beyond
5 the felon in possession charge.” 2011-NMSC-003, ¶ 21.
6 III. Sufficiency of the Evidence
7 {27} Defendant appeals his conviction for conspiracy to commit armed robbery,
8 contending “[t]here was insufficient evidence of an agreement.” “The test for
9 sufficiency of the evidence is whether substantial evidence of either a direct or
10 circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
11 with respect to every element essential to a conviction.” State v. Montoya,
12 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted).
13 The reviewing court “view[s] the evidence in the light most favorable to the guilty
14 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence
15 in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,
16 998 P.2d 176. We disregard all inferences and evidence that support a different result.
17 See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
18 {28} Defendant argues that the State’s only evidence of a conspiracy was the
19 presence of Vigil in the vehicle when Defendant arrived at the gas station and that
15
1 Vigil told Defendant to hurry, and the State therefore failed to show an agreement
2 made “by words or acts agreed together to commit armed robbery.” We hold that this
3 evidence was sufficient to prove the existence of an agreement. A conspiratorial
4 agreement may be proved by circumstantial evidence, and “the agreement can be
5 nothing more than a mutually implied understanding that can be proved by the
6 cooperative actions of the participants involved.” State v. Roper, 2001-NMCA-093,
7 ¶ 8, 131 N.M. 189, 34 P.3d 133. After Defendant confronted Tapie and Radosevich,
8 Vigil’s calling out to Defendant—“let’s go, let’s go”—could indicate that Defendant
9 was taking too long, according to a pre-planned arrangement. Vigil also covered his
10 face with his shirt during the incident, and Defendant told a detective it was Vigil’s
11 idea, stating, “[h]e’s the one that came up with the idea.” From these facts, the jury
12 could have reasonably inferred that Defendant and Vigil, by words or acts, agreed to
13 commit armed robbery.
14 {29} We also reject Defendant’s arguments that there was insufficient evidence in
15 support of his convictions for possession of a firearm by a felon, attempted armed
16 robbery, aggravated battery, and armed robbery. Defendant stipulated to his status as
17 a felon, and both Radosevich and Tapie testified that Defendant held a gun during the
18 encounter. Though there is no physical forensic evidence that Defendant possessed a
19 gun, the jury heard evidence establishing that Defendant threatened Radosevich and
16
1 Tapie at gunpoint, took Tapie’s wallet and sunglasses, tried to rob Radosevich of her
2 money, and struck Radosevich with a gun multiple times when she refused to comply
3 with his demands. The foregoing evidence was sufficient to support Defendant’s
4 convictions.
5 IV. Exclusion of Evidence of Law Enforcement Bias
6 {30} Defendant argues the district court erred by excluding evidence critical for
7 Defendant’s theory that the police were biased and therefore conducted a faulty
8 investigation. Defendant’s asserted defense theory was based on Radosevich and
9 Tapie “target[ing] and attack[ing]” him and that the police conducted a “flawed” or
10 “skewed” investigation because Radosevich’s father is a city councilor with influence
11 over the law enforcement officers handling the investigation. During cross-
12 examination, defense counsel attempted to ask Radosevich and one of the
13 investigating detectives about the position Radosevich’s father held as a city councilor
14 and his role on the scene immediately after the incident, but the district court sustained
15 the State’s objections based on relevance.
16 {31} “We review the admission of evidence under an abuse of discretion standard
17 and will not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-NMSC-
18 022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs when the ruling
17
1 is clearly against the logic and effect of the facts and circumstances of the case.” Rojo,
2 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted).
3 {32} We cannot conclude the district court abused its discretion by sustaining the
4 State’s objections. Defense counsel claimed that the presence of Radosevich’s father
5 on the scene was relevant because he was so “riled up” about what had happened to
6 his daughter that the police nearly arrested him. As noted in the State’s briefing, the
7 reaction of Radosevich’s father shows that he responded “as any normal parent
8 would” after discovering what had happened to his daughter, not that he improperly
9 exerted his authority as a politician or ordered law enforcement to investigate the
10 incident a particular way. Defense counsel was unable to offer any other explanation
11 or proof that Radosevich’s father attempted to direct the investigation through his
12 words or conduct. We, therefore, cannot “characterize [the ruling] as clearly untenable
13 or not justified by reason[,]” and we hold that the district court did not abuse its
14 discretion. Id. (internal quotation marks and citation omitted).
15 CONCLUSION
16 {33} We affirm all of Defendant’s convictions. The firearm enhancement to the
17 conviction of attempted aggravated robbery is also affirmed. We further direct the
18 district court to vacate Defendant’s convictions for Count 2 and Count 7.
19 {34} IT IS SO ORDERED.
18
1 ______________________________
2 STEPHEN G. FRENCH, Judge
3 WE CONCUR:
4 ___________________________________
5 LINDA M. VANZI, Chief Judge
6 ___________________________________
7 MICHAEL E. VIGIL, Judge
19
| {
"pile_set_name": "FreeLaw"
} |
113 F.Supp.2d 388 (2000)
John F. JURGENS, Gail Jurgens, Bridget Jurgens and Kate Jurgens, Plaintiffs,
v.
POLING TRANSPORTATION CORPORATION, Chester A. Poling, Inc., Mabel L. Poling Corp., Motor Vessel Poling Bros. 9, Inc., Metro Fuel Oil Corporation, Metro Terminals Corp., Ultimate Transport Inc., Janet Mahland, the Anthony J., the Clara P. and the Jeanne C., their tackle, engines and appurtenances, etc. in Rem, Defendants.
Philip Becker and Patricia Becker, Plaintiffs,
v.
Poling Transportation Corporation, Chester A. Poling, Inc., Mabel L. Poling Corp., Motor Vessel Poling Bros. 9, Inc., Metro Fuel Oil Corporation, Metro Terminals Corp., Ultimate Transport Inc., Janet Mahland, the Anthony J., the Clara P. and the Jeanne C., their tackle, engines and appurtenances, etc. in Rem, Defendants.
Nos. 96 CV 1265, 96 CV 1768.
United States District Court, E.D. New York.
September 19, 2000.
*389 *390 *391 Bantle & Levy LLP (Lee F. Bantle, of counsel), New York City, for plaintiffs John, Gail, Bridget, and Kate Jurgens.
Cappiello, Hoffman & Katz, P.C. (Paul T. Hoffman, of counsel), New York City, for plaintiffs Philip and Patricia Becker.
Freehill, Hogan & Mahar (John J. Walsh, of counsel), New York City, for defendants Poling Transportation Corporation, Chester A. Poling, Inc., Motor Vessel Poling Bros. No. 9, Inc., Janet Mahland, and Mabel L. Poling Corp.
Jacobowitz, Garfinkel & Lesman (Frank A. Lisi, of counsel), New York City, for defendant Metro Fuel Oil Corporation.
Callan, Regenstreich, Koster & Brady (Joseph H. Herbert, III, of counsel), New York City, for defendant Ultimate Transport. Inc.
MEMORANDUM AND ORDER
NICKERSON, District Judge.
Plaintiffs John F. Jurgens and Philip Becker, seamen employed on the ANTHONY J, a commercial vessel, brought these consolidated actions against the named defendants under the admiralty law as modified by the Jones Act, 46 U.S.C.App. § 688, the general maritime law, 28 U.S.C. § 1333, and the common law of negligence, seeking recovery for injuries they sustained from a fire while transferring gasoline from a barge called THE CLARA P. into a fuel truck.
The only defendants now remaining before the court are Janet P. Mahland, Metro Fuel Oil Corp., and Metro Terminals Corp. The other defendants are no longer parties before the court.
Plaintiffs have moved for partial summary judgment against defendant Janet P. Mahland, and she has cross-moved for summary judgment dismissing the complaints as to her. Defendants Metro Fuel Oil Corp. and Metro Terminals Corp. have also moved for summary judgment dismissing the complaints as to them.
*392 I. BACKGROUND
Procedural Background
Plaintiffs Jurgens and Becker were seaman working on the coastal tanker called THE ANTHONY J. Jurgens as captain and Becker as chief engineer. The record contains conflicting evidence as to whether plaintiffs were employed by defendant Poling Transportation Corporation or defendant Chester A. Poling, Inc.
Defendant Chester A. Poling, Inc. (Chester A. Poling) is the parent corporation of Poling Transportation Corporation (Poling Transportation). Poling Transportation, in turn, is the corporate parent of several corporations that own or owned one or more vessels in navigation, among them the defendant Motor Vessel Poling Bros. No. 9, which owned a barge called THE CLARA P. Another Poling Transportation subsidiary owned THE ANTHONY J.
Janet Mahland was in August 1995 a director and president of Poling Transportation and Motor Vessel Poling Bros. No. 9, and president of Chester A. Poling. The court entered a default judgment against all three corporations.
Defendants Metro Fuel Oil Corporation (Metro Fuel) and Metro Terminals Corp. (Metro Terminals) collectively "Metro," are companies based in Brooklyn, New York, in the business of buying, selling and distributing petroleum products. Metro Fuel is a marketing entity that buys and sells petroleum products using terminal facilities owned by Metro Terminals. Metro Terminals is also licensed to buy and sell gasoline. Joseph Squadrito was a purchase and sales manager for Metro Fuel, and also handled purchases made by Metro Terminals.
Defendant Ultimate Transport Inc. ("Ultimate") owned and operated a small fleet of trucks for transporting fuel oil and other products.
The Court entered default judgment against Ultimate on March 10, 1997. Ultimate and plaintiffs entered into a settlement agreement on April 14, 2000.
The Proposed Sale of THE CLARA P.
In August 1995 THE CLARA P. was moored at a dock operated by Poling Transportation in Staten Island, New York. A person the parties knew only as "Marcos," an agent for a buyer named Abdullah Abdullah, approached Mahland in 1995 with an offer to buy THE CLARA P. Upon inspection, Marcos discovered that THE CLARA P.'s "slop" tanks contained a substance that smelled of gasoline.
This substance, referred to by the parties as "product," included water mixed with gasoline or some other hydrocarbon fluid. The parties disagree as to its precise composition.
On behalf of Abdullah, Marcos agreed to buy THE CLARA P. provided that the tank containing the product and the other storage compartments were cleaned. Mahland negotiated the agreement. It is unclear whether she did so as president of Poling Transportation or of Motor Vessel Poling Bros.
On August 17, 1995, Mahland told Frederick Carmant, a dispatcher for Poling Transportation, to arrange for THE CLARA P.'s slop tanks to be cleaned out. She and Carmant were both aware that THE CLARA P.'s onboard pumping system was inoperative.
Discussions with Metro Fuel
At Mahland's suggestion, Carmant called several companies who provide pumping services in the harbor. When he told Mahland that none of the companies was available, Mahland told him to call Metro Fuel. She did not give specific instructions on how the boat was to be cleaned.
Carmant stated that Metro had often bought gasoline or fuel oil from Poling Transportation, and that a boat in Poling Transportation's fleet would typically transport the product to Metro Terminals *393 where it would be offloaded. THE CLARA P. could not do this job because its internal pumps were inoperative and, apparently, it was not then authorized to travel upon navigable waters.
Carmant then called Joseph Squadrito, Metro's purchase and sales manager. Carmant claimed that he offered to give Metro the product on the Clara P. without charge if Metro would arrange have it offloaded from the barge and transported to Metro Terminal. Squadrito said Carmant offered to sell him gasoline, without mentioning that Metro Fuel needed to arrange for its transportation.
Squadrito came to the Poling Transportation yard on the morning of August 18, 1995 to obtain a sample of the product from THE CLARA P. Carmant, Mahland and Squadrito gave different versions of Squadrito's visit and of subsequent events.
In a deposition Squadrito testified in substance as follows. When he visited the Poling yard, Carmant told him that the product would have to be pumped off of the barge onto a truck prior to any delivery. Squadrito told Carmant that Metro Terminal could not receive fuel unless it was delivered by barge, and so probably could not accept the product. Carmant then asked Squadrito to recommend a company that could offload and transport the product to another location within the Poling Transportation yard. Squadrito said he suggested Ultimate Transportation and two other trucking companies.
Carmant's testimony was that Squadrito obtained a sample of the product and said he would have it tested and tell Carmant later that day whether Metro Fuel would accept it. Squadrito then left Poling's yard without discussing Ultimate.
Carmant said Squadrito called him early the same afternoon and said the product had been tested and found to be clean gasoline. Squadrito allegedly said also that Metro would accept the product. Carmant said he then told Squadrito that the product would have to be pumped off THE CLARA P. and then transported to Metro Terminal. It was Carmant's understanding that Metro Fuel would accept delivery at Metro Terminal, and would pay for the transportation.
Carmant also said he asked Squadrito how Poling should transport the product. Carmant said he told Squadrito that a "vacuum truck" was needed for the job.
Carmant gave conflicting testimony as to whether Squadrito instructed him to call Ultimate or simply recommended Ultimate as a potential transport company. Carmant said Squadrito characterized Ultimate as "our trucking company" or a company that Metro "had used ... before and were satisfied with."
Mahland was sitting next to Carmant when Squadrito called on the afternoon of August 18, 1995. Carmant said he told Mahland that Metro could accept the product via truck, and that Squadrito recommended Ultimate. Mahland corroborated this statement.
Jurgens was also present when Carmant spoke to Squadrito on the phone. He said it was his understanding that Metro agreed to accept the product and that "they would take it off that night." Specifically, he believed that Metro would supply a truck to offload and transport the product.
Squadrito admitted that he called Carmant, but said he did so only to confirm that Metro Fuel would not accept the product. Squadrito admitted knowing that Ultimate did not have vacuum trucks.
On the morning of August 18, Carmant told Jurgens to pump water from a different tank on THE CLARA P., using a portable hand pump stored on the Poling yard. He later told Jurgens to have the crew of THE ANTHONY J. help remove the product from the slop tanks, and said a vacuum truck would arrive later that day.
Discussions with Ultimate
Carmant said that after the phone call with Squadrito, he called Ultimate and *394 spoke to a secretary named Tina Henson. Carmant said he told Henson that Squadrito had recommended Ultimate, and asked whether Ultimate could provide a vacuum truck to remove gasoline from a barge and transport it to Metro Terminal.
Carmant said Henson told him a truck would come to the Poling Transportation yard later that afternoon. Carmant said he assumed that Metro Fuel would pay for the truck, and that he never discussed payment with anyone at Ultimate.
Yuri Schemelzman, the owner of Ultimate, gave a different version of the sequence of events. He said the first call to Ultimate regarding the transaction was not from Carmant but from Squadrito to Henson. Squadrito allegedly asked if Ultimate could help Poling Transportation and asked Henson to contact Carmant directly. Henson then spoke to Carmant, arranged for Poling to "lease" a truck for the afternoon, and negotiated a price, according to Schemelzman.
Schemelzman said he understood that Metro Fuel needed the truck to pump an unidentified substance from a boat into the truck and transport it to barrels to be stored on the Poling yard. But later in his deposition, Schemelzman said he thought that the product was to be transported to Metro Terminal.
It is undisputed that Ultimate did not have vacuum trucks, and that Squadrito knew this before recommending Ultimate to Carmant. Squadrito maintains that he did not know a vacuum truck was needed, although he admits knowing that fuel of some sort was to be pumped from THE CLARA P.
Ultimate eventually dispatched a regular tanker truck, not a vacuum truck. The truck was driven by Etvern O. Nugent, an Ultimate employee. Nugent was accompanied by Calver Leslie, whom he characterized as a visiting friend rather than an Ultimate employee. Jurgens and Becker testified that Leslie appeared to be Nugent's assistant and helped in the pumping operation.
Nugent said that Ultimate's dispatcher gave him the following instructions. He was to drive first to a storage facility in Brooklyn to pick up a piece of equipment called a coupler, which is typically used to link two lengths of hose. Nugent was then instructed to drive to the Poling yard, where he would pick up "something" and take it to Metro Terminal. While at Poling, Nugent was to follow instructions from Poling's employees.
The Fire
Nugent arrived at Poling's yard at approximately 4:00 p.m. on August 18, 1995. Mahland left the Poling yard just as Nugent was arriving.
Jurgens said that when he discovered that Ultimate had not sent a vacuum truck, he discussed with Becker, Nugent and Leslie how they should to remove the product from the boat. He said that together the men decided to use the portable pump Jurgens and Becker had used earlier to remove water from a different tank on THE CLARA P.
Nugent testified that he played no part in this decision and, per his instructions from Ultimate's dispatcher, he merely did what Poling's employees told him to do.
George Reid, a master mariner retained by Jurgens as an expert, stated in an affidavit that the pump used by plaintiffs was not designed to pump combustible products, and that such a use of the pump posed a significant risk of fire or explosion.
Jurgens said that he, Becker, Leslie and another Poling employee set up the pump using the coupler that Nugent had picked up. The pump sat on the deck of THE CLARA P., which was moored to a small tugboat. The tugboat, in turn, was moored to the dock. The men ran an intake hose from the pump through a cargo hatch into THE CLARA P.'s slop tank, and ran an output hose from the pump across the deck of the tugboat and to the *395 truck. Such an arrangement is known as an "over-the-top transfer."
Jurgens started the pump and began filling the first of two compartments on the Ultimate truck. When Nugent signaled Jurgens that the compartment was full, Jurgens shut the pump off and transferred the hose to the truck's other compartment.
When Jurgens restarted the pump, an explosion occurred onboard THE CLARA P. The cause of the explosion has not been definitively identified, but the parties agree it was related to the pumping operation.
The fire quickly engulfed Jurgens and Becker, both of whom jumped into the water. Both men suffered burns over much of their bodies. They were taken by ambulance to Cornell University Medical Center where both remained in intensive care for more than two weeks.
As soon as he saw the fire, Nugent disconnected the hose from the pump and drove the truck from the Poling yard. Nugent and Shemelzman say that Nugent then drove the truck to Metro, where Metro employees directed him to unload the product from THE CLARA P. using pumping equipment at the terminal.
Squadrito denied that the product was delivered to Metro. He and Thomas Torre, Vice President and Treasurer of Metro Fuel, testified that Metro Terminal did not have equipment to receive fuel deliveries by truck.
At some point after the explosion, the output hose was pulled out of THE CLARA P.'s tank, causing an undetermined amount of oil to spill into the water.
The record includes no written records of arrangements or transactions between any of the Poling parties, Ultimate, or the Metro defendants.
Cover-Up
Carmant said that after the fire, he and Mahland "agreed that damage control had to be done, and we agreed to attempt to protect the customer, who was Metro, ... and protect the company, which was Poling Transportation."
Specifically, they agreed "to concoct a story" to tell any law enforcement officials who investigated the accident. They agreed to tell investigators that Poling had planned to offload the product from THE CLARA P. and store it in barrels at the Poling yard rather than give it to Metro Fuels, and that they hired Ultimate to help in this operation.
Carmant said he and Mahland were concerned that law enforcement officials would view the transfer of product to Metro Fuels as a black market gasoline sale. They also wished to protect Metro, a long-standing Poling customer, from any potential civil liability.
Carmant said he spoke to Squadrito twice after the fire, once on the telephone and once at Carmant's house. Carmant said he conveyed to Squadrito Poling's plan to "keep[ ] Metro completely out of it." Squadrito listened but was "very non-committal" and refused to comment, according to Carmant.
Squadrito admits that he spoke with Carmant and visited his house to discuss the fire, but denies hearing about a cover-up.
Carmant also said that he relayed the plan to the secretary at Ultimate. Carmant told her to tell investigators that Ultimate had supplied Poling with a vacuum truck to move the product from the barge into barrels on the shipyard. The secretary told him that Ultimate "would have a problem with that story because [they] did not have vacuum trucks."
Carmant said he called Shemelzman to discuss the plan and that Shemelzman suggested that they meet, but Carmant declined.
Carmant gave the allegedly false version of events to Federal Bureau of Investigations agents who were investigating the fire, but later recanted this story.
*396 Mahland admitted to having one conversation with Carmant regarding what they would tell investigators. She says Carmant told her "to say that `Metro wasn't involved in this.'" Mahland said at that point she did not know whether and to what extent Metro was involved.
Criminal Proceedings
An "over-the-top" transfer of oil or gasoline is a criminal violation of the Ports and Waterways Safety Act and its implementing regulations. See 46 U.S.C.App. §§ 3703(a), 3718(b); 46 C.F.R. § 35.35-20. Negligent discharge of oil into navigable waters violates the Clean Water Act. See 33 U.S.C. §§ 1319(c)(1) and 1321(b)(3).
Poling Transportation was indicted on four counts of criminal violations of the Ports and Waterways Safety Act and the Clean Water Act. United States v. Poling Transportation Corp., No. 96 CR 853. On January 14, 1997, the corporation, through its counsel, pleaded guilty to two counts: the "over-the-top transfer" of oil, a Class D felony, and negligent discharge of oil into navigable waters, a Class A misdemeanor.
On December 11, 1996, a misdemeanor information was filed in the Eastern District of New York charging Mahland with negligent discharge of oil in violation of the Clean Water Act. United States v. Janet Poling Mahland, No. 96 CR 1099. Mahland pleaded guilty on December 11, 1996, and on April 4, 1997, Judge Carol Bagley Amon sentenced her to three years probation and imposed a fine of $6,000.
In her plea colloquy, Mahland admitted that she was negligent with respect to the discharge of oil into navigable waters on August 18, 1995. In particular, she said she instructed her employees to have the vessel cleaned and was negligent in not supervising the process of cleaning out the boat.
II. THE METRO DEFENDANTS
Plaintiffs assert a common law claim of negligence against Metro. The Metro defendants move for summary judgment on the grounds that (i) they had no duty of care to plaintiffs under these circumstances, and (ii) their actions were not the proximate cause of plaintiffs' injuries.
A. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id. Moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
The substantive law governing the case will determine those facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
B. Applicable Law
Because plaintiffs were seaman injured upon a vessel in navigable waters, maritime law governs their claims. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493, 497, 34 L.Ed.2d 454 (1972) (maritime jurisdiction established by locality of tort); Shipping Corp. of India v. American Bureau of Shipping, 744 F.Supp. 447, 448 n. 1 (S.D.N.Y.1990). Federal maritime law incorporates common-law negligence principles, and New York law in particular. See *397 International Ore & Fertilizer Corp. v. SGS Control Services, Inc., 38 F.3d 1279, 1284 (2d Cir.1994).
To prevail on a claim for negligence under the general maritime law, "the burden is on the plaintiff to establish duty, breach of duty, causation (both cause in fact and proximate cause) and damages." Naglieri v. Bay, 93 F.Supp.2d 170, 174-75 (D.Conn.1999).
C. Duty
Plaintiffs assert that Metro had a direct duty to them because a Metro employee "arranged" for the removal of oil from the barge. They also argue that Metro had a duty to prevent negligence on the part of Ultimate, whom plaintiffs characterize as an agent or independent contractor to Metro.
Metro's Negligence
Plaintiffs first seek to hold Metro directly liable for their own negligence, as distinct from Ultimate's negligence. Relying on Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 426 N.Y.S.2d 233, 402 N.E.2d 1136 (1980), they assert that the transfer of product from THE CLARA P. was a combined effort among Squadrito, plaintiffs, and Ultimate's driver, Etvar Nugent.
In Havas, the plaintiff was injured while assisting employees of the defendant trucking company in loading waste paper from garbage trucks. The hydraulic fork-lift was broken, and the plaintiff and defendant's employees agreed to use an ad hoc method of loading the trucks. The Court of Appeals held that the trucking company was liable because its employees agreed to proceed even though "the shortcomings of the [improvised] method ... were patent." Id., 49 N.Y.2d at 386, 426 N.Y.S.2d at 236, 402 N.E.2d 1136.
Havas might be applicable as against Ultimate, the company whose equipment and employees were used in the offloading operation. But it is irrelevant as against Metro except insofar as Metro is liable for Ultimate's actions. Plaintiffs do not assert that any employee of either Metro defendant actually took part in the transfer operation or that these defendants owned or operated any of the equipment used in the operation.
Plaintiffs do allege that Metro exercised control over Ultimate's conduct during the pumping operation. But that claim, if proven, would support a claim of vicarious liability under an agency theory rather than direct liability.
Vicarious Liability Generally
The New York courts are reluctant to impose a duty to anticipate the tortious conduct of third parties. See Purdy v. Public Adm'r of Westchester Cty., 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 516, 526 N.E.2d 4 (1988); Pulka v. Edelman, 40 N.Y.2d 781, 785-86, 390 N.Y.S.2d 393, 396-97, 358 N.E.2d 1019 (1976). But such a duty exists where there is a special relationship that confers on the defendant either the obligation to control the third person's conduct or to protect the plaintiffs from the harm in question. See Pulka v. Edelman, 40 N.Y.2d 781, 783, 390 N.Y.S.2d 393, 395, 358 N.E.2d 1019 (1976).
Plaintiffs contend that such a special relationship existed because Squadrito "arranged for" Ultimate to conduct the pumping operation, and Metro was the intended recipients of the product. The possibility of an agency relationship between Metro and Ultimate is discussed below. But plaintiffs also assert that Metro had a duty to prevent Ultimate's negligence even in the absence of an agency relationship. Specifically, they allege that Metro's duty arose when their employee recommended Ultimate or instructed Poling to retain Ultimate.
A party who negligently provides false information to another may be liable "for physical harm caused by action taken by the other in reasonable reliance upon such information." Restatement (Second) Torts § 311(1). Such liability may arise where harm results either to the person *398 who receives the information or to "such third persons as the actor should expect to be put in peril by the action taken." Id.
To state a claim for negligent misrepresentation, a plaintiff must establish that the "defendant had a duty to use reasonable care to impart correct information because of some special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information provided." Grammer v. Turits, 271 A.D.2d 644, 706 N.Y.S.2d 453 (2d Dept. 2000).
The requisite relationship must include "actual privity of contract between the parties or a relationship so close as to approach that of privity." Ossining Union Free School District v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 419, 541 N.Y.S.2d 335, 335, 539 N.E.2d 91 (1989); see also International Ore & Fertilizer Corp. v. SGS Control Services, Inc., 38 F.3d 1279, 1283, n. 1, 1284 (2d Cir.1994) (maritime law incorporates New York law of negligent misrepresentation). To establish such a relationship, plaintiffs must show (1) that defendants were aware that their statement would be used for a particular purpose; (2) detrimental reliance by a known party on the statement in furtherance of that purpose; (3) some conduct by the maker of the statement linking it to the relying party and evidencing its understanding of that reliance. See Dorking Genetics v. United States, 76 F.3d 1261, 1269 (2d Cir.1996).
Under this rule, a defendant is not liable merely for the tortious acts of a third party whom they have simply recommended to the plaintiff, where a party other than the plaintiff actually retained the party inflicting the injury. See Cohen v. Wales, 133 A.D.2d 94, 518 N.Y.S.2d 633 (2d Dept.1987) (school district not liable for recommending teacher formerly charged with sexual misconduct).
But plaintiffs allege that Metro did more than merely recommend that Poling use Ultimate. Rather, Metro purportedly agreed to accept the product from the barge, called Ultimate to tell them to contact Poling, either recommended or instructed Poling to use Ultimate, and agreed to pay for Ultimate's services.
Such conduct established a relationship between Metro and Poling "sufficiently approaching privity" to render the Metro defendants liable for their misrepresentation. Security Pacific Business Credit, Inc. v. Peat Marwick Main & Co., 79 N.Y.2d 695, 705, 586 N.Y.S.2d 87, 597 N.E.2d 1080 (1992).
Admittedly, the record shows only that Metro may have had a special relationship with Poling. But that relationship would clearly extend to Poling's employees, just as Squadrito's acts may be imputed to Metro. Indeed, plaintiffs' reliance upon Squadrito's representations as to Ultimate's ability to provide the necessary equipment "was a consequence which, to the [defendants'] knowledge, was the end and aim of the transaction." Glanzer v. Shepard, 233 N.Y. 236, 238-39, 135 N.E. 275 (1922).
Ultimate as Metro's Agent
Federal maritime law embraces the principles of agency, see, e.g., Kirno Hill Corp. v. Holt, 618 F.2d 982, 985 (2d Cir. 1980), under which "a principal is liable to third parties for the acts of an agent operating within the scope of his real or apparent authority." Citibank, N.A. v. Nyland (CF8) Ltd., 878 F.2d 620, 623-24 (2d Cir. 1989).
To establish an agency relationship, a party must show "the manifestation by the principal that the agent shall act for him[;] the agent's acceptance of the undertaking[;] and the understanding of the parties that the principal is to be in control of the undertaking." Cabrera v. Jakabovitz, 24 F.3d 372, 386 (2d Cir.1994) (quoting Restatement (Second) of Agency § 1 cmt. b (1958)).
*399 The most critical element is that the agent "acts subject to the principal's direction and control," In re Shulman Transport Enterprises, Inc., 744 F.2d 293, 295 (2d Cir.1984), that is, that the principal exercises "day-to-day control" over the "detailed physical performance" of the agent. United States v. Orleans, 425 U.S. 807, 814-16, 96 S.Ct. 1971, 1976-77, 48 L.Ed.2d 390 (1976). The Court looks for "the exertion of actual control, not formal indicia of control." Royal Insurance Company of America v. RU-VAL Electric Corp., 918 F.Supp. 647, 653 (E.D.N.Y. 1996).
Whether an agency relationship exists under this standard is a mixed question of law and fact. Cabrera, 24 F.3d at 385-86. Summary judgment is appropriate "only where application of the law to ... undisputed facts will reasonably support only one ultimate conclusion." Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 438 (2d Cir. 1999).
Material questions of fact remain at least as to the first two elements of agency, that is, whether either Metro or Ultimate expressed an understanding that Ultimate would act as Metro's agent. For example, Carmant stated in his deposition that Squadrito recommended that Poling use Ultimate. But he also said that Squadrito instructed him to call Ultimate and that he understood that Metro would pay for the transport. Yuri Schemelzman, Ultimate's owner, testified that Squadrito called Ultimate to ask if they could help Poling, and that Poling arranged to "lease" a truck from Ultimate.
Carmant, Jurgens and Squadrito also gave conflicting testimony as to whether Metro agreed to accept the product. Likewise, Nugent said he was told by Ultimate's dispatcher to deliver the product to Metro Terminal, while Schemelzman said that Ultimate agreed only to move the product to barrels located on the Poling yard. Squadrito and Thomas Torre both testified that it was physically impossible to deliver gasoline to Metro Terminal by truck, but Nugent and Schemelzman testified that Nugent did just that.
In short, viewed in the light most favorable to plaintiffs, the facts may support a finding that Metro hired Ultimate to help pump the product from the barge and transport it to Metro Terminal. Summary judgment is thus inappropriate on the question of whether the parties understood that Ultimate would act on behalf of Metro.
Whether Metro exercised the requisite control over Ultimate's conduct presents a closer question. The record provides some support for plaintiffs' allegation that Squadrito instructed Ultimate to go to the Poling yard, offload the product, and deliver it to Metro Terminal. There is also evidence that Squadrito agreed that Metro would pay for the transfer.
Witnesses differed as to who would direct the pumping operation. Nugent said he was told to follow the instructions of Poling employees, while Jurgens said he was told "to assist the truck in getting the gasoline off the barge." But there was no direct evidence that in deciding to conduct an over-the-top transfer using a portable pump the men were deferring to instructions from Metro. In fact, both Jurgens and Nugent said Jurgens initially suggested that method.
Nevertheless, the over-the-top transfer was made necessary only because no vacuum truck arrived, and the evidence may support a finding that Metro was responsible for this lapse. In addition, Ultimate's dispatcher instructed Nugent to pick up a coupler before going to the Poling yard. Plaintiffs urge that this order must have originated with Squadrito, since only Squadrito knew both that Ultimate would not be bringing a vacuum truck and the position of THE CLARA P. within the Poling yard. Plaintiffs also note that when Nugent drove to Metro Terminal after the fire, Metro employees specifically instructed *400 him how and where to offload the product.
These facts may indicate, albeit circumstantially, that Metro had or exercised the right to control the "detailed physical performance" of the operation. Orleans, 425 U.S. at 814-16, 96 S.Ct. at 1976-77. Summary judgment dismissing plaintiffs' claim against Metro is thus not appropriate.
Ultimate as Independent Contractor
Plaintiffs argue that even if Metro retained Ultimate only as an independent contractor, they are vicariously liable for Ultimate's negligence because the transfer operation was an "inherently dangerous activity."
An independent contractor, like an agent, is a party hired by a principal or employer. See Restatement (Second) of Agency § 1 cmnt. e (1958); O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir.1997). Remuneration to the purported contractor by the employer is an "essential characteristic" of the independent contractor relationship. O'Connor, 126 F.3d at 115. "[T]he typical test of whether one is an independent contractor [as opposed to a servant or employee] lies in the control exercised by the employer, and in who has the right to direct what will be done and when and how it will be done." Makarova v. U.S., 201 F.3d 110, 114 (2d Cir.2000); see also Restatement (Second) of Agency § 220(2).
One who hires an independent contractor generally is not liable for the negligence the contractor or its employees. Restatement (Second) of Torts § 409 (1965). But "where the activity performed by the contractor is an inherently dangerous one, the negligence of the contractor may be imputed to the employer." Alva Steamship Co. v. City of New York, 616 F.2d 605, 610 (2d Cir.1980).
Alternatively, a principal may be liable for hiring a negligent or unqualified independent contractor "provided that the employer either failed to exercise reasonable care in the selection of the contractor or had actual or constructive knowledge of the contractor's insufficiency." Waite v. American Airlines, Inc., 73 F.Supp.2d 349, 355 (S.D.N.Y.1999); see also O'Keefe v. Sprout-Bauer, Inc., 970 F.2d 1244, 1251 (3d Cir.1992); Restatement (Second) of Agency § 411.
It is Metro's position that Squadrito simply suggested that Poling use Ultimate's services, and thus that Ultimate was neither their agent nor an independent contractor. But, as noted, a reasonable jury could conclude that Metro hired Ultimate to help pump the product from the barge and transport it to Metro Terminals.
The Court does note the complete absence of documentary evidence on this issue in the form of invoices, contracts and the like. Torre, Metro Fuel's treasurer, stated in a deposition that both Metro Fuel and Metro Terminal typically issue "delivery tickets" to document fuel transfers made by trucking companies on their behalf, but that he knew of no records of the transaction at issue. Nonetheless, summary judgment on the question of Ultimate's relationship with the Metro defendants is inappropriate in the face of conflicting affidavits and deposition testimony. Fed.R.Civ.P. 56(c).
Metro also asserts that the transfer operation was not an "inherently dangerous activity." Whether an activity is inherently dangerous "is a question of fact to be determined by the fact-finder" as long as "reasonable minds" can differ. McMillan v. United States, 112 F.3d 1040, 1044 (9th Cir.1997); see also Rosenberg v. Equitable Life Assur. Socy., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840 (1992).
A trier of fact could easily find that the removal of the product from THE CLARA P. was inherently dangerous. Plaintiffs' expert, George Reid, stated that offloading gasoline without a vacuum truck posed a risk of fire. The Second Circuit has found that handling gasoline in analogous circumstances *401 was inherently dangerous. See Alva Steamship Co. v. City of New York, 616 F.2d 605, 610 (2d Cir.1980) (salvage of liquid fuel from damaged ship); see also 46 C.F.R. § 35.35-20 (requiring special precautions in loading and unloading flammable liquid cargo from tank vessels).
Even if the gasoline transfer was not "inherently dangerous," Metro may have been negligent in selecting an independent contractor that lacked the proper equipment. See Restatement (Second) of Torts § 411, illustration 2 (if employer hires trucking company to haul logs but knew or should have known that company's trucks were unsuitable for work, employer is liable to third party injured by falling logs). It is undisputed that Squadrito knew that Ultimate had no vacuum trucks and that offloading the product without such a truck was unsafe.
There are issues of fact as to whether Metro may be liable on the ground that the offloading was inherently dangerous or for negligence in selecting Ultimate.
E. Proximate Cause
The Metro defendants argue that their acts did not proximately cause plaintiffs' injuries because they neither created the conditions that led to the accident nor set in motion the over-the-top transfer. Similarly, they argue that the negligence of Poling and its employees were superseding causes of the injuries.
"Proximate cause ... limits a defendant's liability to those foreseeable consequences that the defendant's negligence was a substantial factor in producing." Bonsignore v. City of New York, 683 F.2d 635, 637 (2d Cir.1982).
The chain of legal causation is broken by "a later cause of independent origin that was not foreseeable." Exxon Co. U.S.A. v. Sofec, Inc., 517 U.S. 830, 837, 116 S.Ct. 1813, 1818, 135 L.Ed.2d 113 (1996) (quoting 1 T. Schoenbaum, Admiralty and Maritime Law § 5-3, pp. 165-66 (2d ed.1994)). The foreseeable intervening negligence of a plaintiff or a third party "may reduce, but does not bar, recovery for personal injuries, that is, the plaintiff's recovery is reduced in proportion to his own fault." Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09, 74 S.Ct. 202, 98 L.Ed. 143 (1953).
Metro relies on a series of decisions denying recovery to plaintiffs injured under conditions created because the defendant supplied defective equipment. Benaquista v. Municipal Housing Auth., 212 A.D.2d 860, 622 N.Y.S.2d 129 (2d Dept. 1995) (defendant landlord's defective intercom not the proximate cause of plaintiff's fall in stairwell); see also Ferguson v. Callanan Ind., 223 A.D.2d 862, 636 N.Y.S.2d 207 (3d Dept.1996) (defendant's inoperative equipment not the proximate cause of injuries sustained when plaintiff used alternative means of accomplishing task); McMahon v. ConAgra, Inc., 1992 WL 131115 (W.D.N.Y.1992) (same).
These decisions support the proposition that a defendant is not liable who "merely furnished the condition or occasion upon which plaintiff's injuries were received but did not put in motion the agency by which the injuries were inflicted." Benaquista, 622 N.Y.S.2d at 129. In Ferguson, for example, the defendant supplied defective equipment to plaintiff's employer, but "took no part in the decision" to have plaintiff perform a task usually made less dangerous by defendant's equipment. 636 N.Y.S.2d at 208.
But plaintiffs seek to hold Metro vicariously liable for Ultimate's negligence. And Ultimate's employees allegedly did not merely create the conditions under which plaintiffs were injured, that is, the absence of a vacuum truck. They also allegedly helped plaintiffs "put in motion the agency" causing plaintiff's injuries, namely, the over-the-top transfer. Cf. Benaquista, 622 N.Y.S.2d at 129.
Moreover, the Metro defendants themselves allegedly had a hand in proceeding *402 with the transfer despite the lack of proper equipment. Plaintiffs contend that Squadrito knew that THE CLARA P.'s pumps were inoperative and that Ultimate had no vacuum trucks, but nonetheless requested that Ultimate help offload and transfer the product. Cf. Lopez v. A/S/D/S Svendborg, 581 F.2d 319, 325 (2d Cir.1978) (defendant ship owner is liable where he knew of danger but had plaintiff stevadore continue working or joined in their decision to do so); Restatement (Second) of Torts § 413 (1965) (employer of independent contractor liable for injuries caused by dangerous work of which employer was aware and for which employer failed to take precautions).
Similarly, any intervening negligence on plaintiffs' part was foreseeable. Plaintiffs' expert testified that a risk of fire was inherent in any procedure to remove gasoline from the boat without the proper equipment. Nonetheless, Squadrito allegedly arranged for Poling and Ultimate to complete the transfer without a vacuum truck. In these circumstances, it cannot be said that "the subsequent actor's negligence was `extraordinary' (defined as `neither normal nor reasonably foreseeable')." Exxon, 517 U.S. at 835, 116 S.Ct. at 1817 (citations omitted).
Since there are triable issues of fact as to Metro's liability, summary judgment is inappropriate.
IV. MAHLAND'S MOTION
Mahland moves for summary judgment on the grounds that plaintiffs have no claims against her under either the Jones Act or the unseaworthiness doctrine; that general maritime law bars an action by a seaman against a fellow employee; and that her acts were neither negligent nor the proximate cause of plaintiffs' injuries.
Jones Act and the Fellow Servant Doctrine
The Jones Act, 46 U.S.C.App. § 688, allows a seaman to seek recovery from his or her employer for injuries caused by the employer's negligence. The Jones Act provides a right of action only against a seaman's "employer." Cosmopolitan Co. v. McAllister, 337 U.S. 783, 789, 69 S.Ct. 1317, 1321, 93 L.Ed. 1692 (1949); Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 170 (2d Cir. 1973).
"[T]he Jones Act provides the exclusive recovery in negligence for claims by seamen against their employers." Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1283 (1st Cir.1993). "Employers" under the Jones Act include "those standing in the proximate relation of employer," Cosmopolitan Co. v. McAllister, 337 U.S. 783, 790, 69 S.Ct. 1317, 1321, 93 L.Ed. 1692 (1949), including the employer's "officers, agents, or employees." Hopson v. Texaco, Inc., 383 U.S. 262, 263, 86 S.Ct. 765, 766, 15 L.Ed.2d 740 (1966).
The Jones Act does not bar negligence actions by seaman against non-employer third parties under general maritime law. But general maritime negligence actions against fellow employees are barred by the fellow servant doctrine. McAleer v. Smith, 57 F.3d 109, 116 (1st Cir.1995).
Plaintiffs apparently concede that they may not sue Mahland either for negligence under the Jones Act or for unseaworthiness. But they contend she may be held liable for negligence under the general maritime law as a non-employer third party.
Plaintiffs seek to avoid the fellow servant rule by arguing that the parties worked for different employers. They allege that Becker and Jurgens were employees of Chester A. Poling, while Mahland is sued in her capacity as president or corporate officer of Poling Transport or Motor Vessel Poling Bros. No. 9.
But a seaman employed by one entity may be considered a temporary or shared employee for purposes of the Jones act under the doctrines of "borrowed" and "dual" servants. See Kelley v. Southern *403 Pacific Co., 419 U.S. 318, 324, 95 S.Ct. 472, 476, 42 L.Ed.2d 498 (1974) (applying Federal Employers' Liability Act); Kernan v. American Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 401, 2 L.Ed.2d 382 (1958) (Jones Act incorporates "the entire judicially developed doctrine of liability" under the Federal Employers' Liability Act); Walker v. Braus, 995 F.2d 77 (5th Cir. 1993) (applying borrowed servant doctrine under Jones Act).
A borrowed servant is one "directed or permitted by his master to perform services for another." Restatement (Second) of Agency § 227; Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1349 (3d Cir.1991). A "dual servant" is the servant "of two masters ... at one time as to one act, if the service to one does not involve abandonment of service to the other." Restatement (Second) of Agency § 226; Williamson, 926 F.2d at 1349.
Under either rule, an employee-employer relationship is not established for Jones Act purposes unless the employer "had the power to control, manage and direct the servant in the performance of [the seaman's] work." Addison v. Gulf Coast Contracting Servs., 744 F.2d 494, 499 (5th Cir.1984); see Kelley, 419 U.S. at 324, 95 S.Ct. at 476.
Whether the requisite control was present turns on several factors, most importantly who exercised "significant supervisory control" over the operation in which the plaintiff was injured. Kelley, 419 U.S. at 327, 95 S.Ct. at 477. The Court also looks to "who selected and engaged the plaintiff to do the work; ... and who furnished the tools with which the work was performed and the place of work." Williamson, 926 F.2d at 1349.
It is unclear on the present record whether Becker and Jurgens, as crew members of THE ANTHONY J., were employed by Chester A. Poling or Poling Transportation. But the record clearly shows that, at the time of the accident, plaintiffs were borrowed or dual servants of the corporation that controlled the unloading operation. That entity employer was either Motor Vessel Poling Bros. No. 9, which owned THE CLARA P., or of Poling Transportation, its parent corporation.
On the day of the accident, Mahland told Carmant, a Poling Transportation employee, to have THE CLARA P. cleaned out in preparation for its sale. Carmant, in turn, told Jurgens to pump water from a storage tank using a portable hand pump and to determine how much product was in the slop tanks. He later "left instructions for the crew of the ANTHONY J. to do whatever ... was needed" in the pumping operation.
Even without resort to agency law, the undisputed facts also show that Mahland, at the time she committed acts charged in the complaint, was acting as an officer of the same corporate entity as plaintiffs. She was president of Chester A. Poling, Poling Transportation, and Motor Vessel Poling Bros. No. 9. She negotiated the sale of the barge, agreed to have the boat's tanks cleaned, and instructed Carmant to make the necessary arrangements. In her capacity as president of Poling Transportation, Mahland was subsequently indicted and pleaded guilty for Clean Water Act violations committed in connection with that cleaning operation.
In short, at the time of the fire, either plaintiffs and Mahland were fellow servants or Mahland was the agent of plaintiffs' employer. In either event, plaintiffs may not recover for Mahland's negligence except through a suit against their employer under the Jones Act. See Ellenwood, 984 F.2d at 1283 (Jones Act provides "exclusive recovery in negligence for claims by seamen against their employers"); Hopson, 383 U.S. at 263, 86 S.Ct. at 766 ("employer" under the Jones Act includes "officers [or] agents" of nominal employer).
Plaintiffs next contend that even if the parties were employed by the same corporation, *404 the fellow-servant doctrine in maritime law only bars suits by a seaman against the master of his vessel or fellow crew members. Mahland indisputably was not the master of a vessel or a fellow crew member.
It is true that the rule as applied to seaman is often phrased in the language urged by plaintiffs. See, e.g., The Osceola, 189 U.S. at 175, 23 S.Ct. at 487 ("all the members of the crew ... are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew"). But plaintiffs have not cited, and the Court could not locate, any decision allowing a seaman to bring a negligence action against a fellow corporate employee, as distinct from a fellow crew member, without running afoul of the fellow servant doctrine and the Jones Act.
As noted, the Jones Act allows recovery for the negligence of "those standing in the proximate relation of employer," McAllister, 337 U.S. at 790, 69 S.Ct. at 1321, including the employer's "officers [or] agents." Hopson, 383 U.S. at 263, 86 S.Ct. at 766.
Under plaintiffs' view of the fellow servant doctrine, a seaman could recover against the officer of a corporation under both the Jones Act and the general maritime law. Such a rule would be contrary to both the Jones Act, which provides the "exclusive recovery in negligence" for claims against an employer and its officers or agents, Ellenwood, 984 F.2d at 1283, and the fellow servant doctrine.
Mahland's Personal Liability for Corporate Acts
Plaintiffs also argue that Mahland may be held personally liable under New York law for negligent acts undertaken in her corporate capacity.
Under both state and maritime law "a corporate officer who commits or participates in a tort, even if it is in the course of his duties on behalf of corporation, may be held individually liable." Lopresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir.1997); see also Armada Supply Inc. v. S/T Agios Nikolas, 613 F.Supp. 1459, 1471 (S.D.N.Y.1985) (applying maritime law).
But this rule does not create a distinct basis for holding any party liable; it merely allows recovery from a different source. As seaman injured in the course of their employment, plaintiffs still must seek recovery for negligence under either the Jones Act or general maritime law.
In other words, holding Mahland personally liable would not transform the suit from a Jones Act claim against an employer to a general maritime action against a non-employer third party. It simply would place Mahland in the shoes of the corporation that otherwise may be liable as plaintiffs' employer.
But a Jones Act claim lies only against the employer, and the employer is liable for corporate acts and the acts of its officers, agents and employees. See Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 170 (2d Cir. 1973). "[O]nly one person, be it an individual or a corporation, [may] be sued as the employer." Id.
Unless plaintiffs could establish that Mahland was the alter ego of plaintiffs' "borrowed" employer, they cannot hold her liable under the Jones Act. Cf. Williams v. McAllister Bros., Inc., 534 F.2d 19, 21 (2d Cir.1976) (plaintiff may hold parent corporation liable as alter ego to Jones Act employer); Guillie v. Marine Towing, Inc., 670 So.2d 1298, 1303 (La. App.1996) (corporate officer could not be held individually liable under Jones Act without piercing the corporate veil); Palladino v. VNA of Southern New Jersey, Inc., 68 F.Supp.2d 455, (D.N.J.1999) (corporate officers were not "employers" for purposes of False Claims Act in absence of allegations sufficient to pierce corporate veil). Recovery for Mahland's negligence, if any, must be sought from the corporate Poling parties. Mahland's motion for summary judgment is therefore granted.
*405 V. PLAINTIFFS' MOTION
Plaintiffs seek summary judgment on the issue of Mahland's liability, arguing that her guilty plea in United States v. Mahland has preclusive effect on the question of her negligence with respect to the fire on THE CLARA P.
Mahland's motion for summary judgment having been granted, plaintiffs' cross-motion for partial summary judgment is dismissed as moot.
VI. SUMMARY
The Metro defendants' motion for summary judgment is denied. Mahland's motion for summary judgment is granted. Plaintiffs' motion for partial summary judgment is denied.
So ordered.
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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
AUGUST 23, 2007
No. 05-16734
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-01100-CV-RWS-1
C. ALAN POWELL, individually, and on behalf of
all others similarly situated,
TORY DUNLAP, individually, and on behalf of
all other similarly situated, et al.,
Plaintiffs Appellees
Cross-Appellants,
versus
SHERIFF JACQUELINE BARRETT,
Fulton County, State of Georgia,
SHERIFF MYRON FREEMAN,
Fulton County, State of Georgia, et al.,
Defendants-Appellants
Cross-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(August 23, 2007)
Before BLACK and HULL, Circuit Judges, and RYSKAMP,* District Judge.
PER CURIAM:
*
Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of
Florida, sitting by designation.
Plaintiffs, eleven male former detainees at the Fulton County Jail (the Jail),
filed a putative class action under 42 U.S.C. § 1983 against Sheriffs Myron
Freeman and Jacqueline Barrett, the current and former sheriffs of the Jail (the
Sheriffs), Fulton County (the County), the members of the Fulton County Board of
Commissioners (the Board), and the City of Atlanta (the City) (collectively,
Defendants).
Plaintiffs sue Sheriff Freeman in his official capacity for both monetary
damages and injunctive relief and in his individual capacity for monetary
damages. Plaintiffs sue Sheriff Barrett only in her individual capacity for
monetary damages. Plaintiffs also seek both monetary damages and injunctive
relief against the County and the City.
In their Fourth Amended Complaint (the Complaint), Plaintiffs claim their
constitutional rights were violated when they were detained past midnight on their
scheduled release dates, or “overdetained,” pursuant to a policy or practice at the
Jail.1 Defendants filed motions to dismiss the Complaint for failure to state a
claim, arguing, inter alia, Sheriff Freeman was entitled to Eleventh Amendment
1
In their Complaint, Plaintiffs also claim their constitutional rights were violated when
they were subjected at the Jail to “blanket strip searches,” or strip searches without an
individualized finding of reasonable suspicion that each Plaintiff was concealing weapons, drugs,
or other contraband. We discuss Plaintiffs’ § 1983 claims against Defendants based on the
blanket strip searches in a separate, published opinion.
2
immunity, both Sheriffs were entitled to qualified immunity, and the County and
the City lacked the requisite control over the policy at the Jail to be liable as
municipalities under § 1983. In an order dated July 5, 2005 (the Order), the
district court granted in part and denied in part Defendants’ motions to dismiss.2
Specifically, the district court granted Eleventh Amendment immunity to Sheriff
Freeman for Plaintiffs’ overdetention claims against him in his official capacity
seeking monetary damages; however, the district court denied the Sheriffs
qualified immunity for Plaintiffs’ overdetention claims against them in their
individual capacities. The district court also denied the County’s and City’s
motion to dismiss the overdetention claims, finding that Plaintiffs had sufficiently
alleged claims of municipal liability under § 1983 against the County and City.
In this appeal and cross-appeal, the parties challenge the district court’s
order. After reviewing the parties’ briefs and hearing oral argument, we affirm in
part, reverse in part, and remand in part.
2
The district court’s July 5, 2005 order relies, in part, on a previous order dated
January 13, 2005, in which the district court addressed the County’s and City’s motions to
dismiss the First Amended Complaint.
3
I. DISCUSSION
A. Suit Against Sheriff Freeman in his Official Capacity for Monetary Damages
We first address whether Sheriff Freeman is entitled to Eleventh
Amendment immunity from suit in his official capacity seeking monetary
damages. Under the Eleventh Amendment, a State is immune from suit in federal
court without its consent. Pennhurst State Sch. & Hosp. v.. Halderman, 465 U.S.
89, 100, 104 S. Ct. 900, 908 (1984). This immunity extends to an “arm of the
State,” which includes agents and instrumentalities of the State. Regents of the
Univ. of Cal. v. Doe, 519 U.S. 425, 429-30, 117 S. Ct. 900, 903-04 (1997).
“Whether a defendant is an ‘arm of the State’ must be assessed in light of the
particular function in which the defendant was engaged.” Manders v. Lee, 338
F.3d 1304, 1308 (11th Cir. 2003) (en banc). We look at four factors to determine
whether an entity is an “arm of the State”: “(1) how state law defines the entity;
(2) what degree of control the State maintains over the entity; (3) where the entity
derives its funds; and (4) who is responsible for judgments against the entity.” Id.
at 1309. In Manders, we examined Georgia law and held that the sheriff of Clinch
County was entitled to Eleventh Amendment immunity as an “arm of the State”
when he established and executed a use-of-force policy at the jail. Id. at 1328.
4
Although the policy in the instant case is different, our analysis in Manders
applies to Sheriff Freeman’s policy for processing the release of detainees. See id.
at 1318-1328. We conclude that Sheriff Freeman, in his official capacity, is an
“arm of the State” entitled to immunity in executing his function of processing the
release of detainees from the Jail. We therefore affirm the district court’s
dismissal of Plaintiffs’ overdetention claims for monetary damages against Sheriff
Freeman in his official capacity.
B. Suit Against Sheriff Freeman in his Official Capacity for Injunctive Relief
The Eleventh Amendment does not prevent Plaintiffs from seeking
prospective, injunctive relief against Sheriff Freeman in his official capacity. See
Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903 (2004).
Defendants maintain, however, that Plaintiffs lack standing to seek injunctive
relief against Sheriff Freeman in his official capacity.3 For purposes of this issue,
we assume Plaintiffs sufficiently alleged a constitutional violation based on the
alleged overdetentions at the Jail. All Plaintiffs, other than Stanley Clemons, had
been released from the Jail before they were added as parties to this suit. We
3
The district court dismissed Plaintiffs’ claims for injunctive relief against the County, but
it did not address Plaintiffs’ claims for injunctive relief against Sheriff Freeman in his official
capacity or against the City. On appeal, Defendants challenge Plaintiffs’ standing to seek
injunctive relief against Sheriff Freeman in his official capacity and against the City. However,
because we dismiss Plaintiffs’ overdetention claims against the County and the City infra, we
need only address Plaintiffs’ standing to seek injunctive relief against Sheriff Freeman in his
official capacity.
5
agree with the district court that the threat they face of future overdetentions is too
speculative or conjectural and not real and immediate. See City of Los Angeles v.
Lyons, 461 U.S. 95, 101-102, 103 S. Ct. 1660, 1665 (1983). Clemons, however,
was still at the Jail at the time he was added as a plaintiff to the suit and therefore
has standing to seek injunctive relief against Sheriff Freeman in his official
capacity.4
Nonetheless, as Defendants point out, Clemons has since been released from
the Jail, which moots his claim for injunctive relief. See Spears v. Thigpen, 846
F.2d 1327, 1328 (11th Cir. 1988) (holding that claims regarding treatment at a
facility at which prisoner was no longer incarcerated were moot); see also Wahl v.
McIver, 773 F.2d 1169, 1173 (11th Cir.1985) (explaining that absent class
certification, an inmate’s claim for injunctive relief under §1983 action is moot
once the inmate has been transferred). Clemons does not meet the two conditions
for the “capable of repetition, yet evading review” exception to apply: (1) the
challenged action must be of too short a duration to be fully litigated prior to its
4
Although Clemons was still at the Jail when he was added as a party, all
Plaintiffs–including Clemons–were released from the Jail before Sheriff Freeman took office.
The suit against Sheriff Freeman in his official capacity is tantamount to a suit against the
governmental entity involved, here the Sheriff's Office. See Jones v. Cannon, 174 F.3d 1271,
1293 n.15 (11th Cir. 1999). Thus, Plaintiffs’ release from the Jail before Sheriff Freeman took
office is relevant only to their suit against Sheriff Freeman in his individual capacity, as
discussed infra in Section C.
6
cessation, and (2) a reasonable expectation must exist that the same complaining
party will be subject to the same action again. Weinstein v. Bradford, 423 U.S.
147, 149, 96 S. Ct. 347, 348 (1975). While the first condition may be satisfied, the
second is not because Clemons has not demonstrated a reasonable expectation that
he will again be arrested, committed to the Jail, and unconstitutionally detained.
Therefore, we conclude Plaintiffs’ claims for injunctive relief against Sheriff
Freeman in his official capacity should be dismissed, and we remand to the district
court to dismiss Plaintiffs’ overdetention claims for injunctive relief against
Sheriff Freeman in his official capacity.
C. Suit Against the Sheriffs in their Individual Capacities for Monetary Damages
Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct does not violate clearly
established statutory or constitutional rights. Vinyard v. Wilson, 311 F.3d 1340,
1346 (11th Cir. 2002). Defendants challenge the district court’s order denying
Sheriffs Freeman and Barrett qualified immunity from Plaintiffs’ claims against
them for monetary damages in their individual capacities. We first note that,
based on the allegations in the Complaint, all Plaintiffs were released from the Jail
before Sheriff Freeman took office. Because Sheriff Freeman was not yet a sheriff
at the Jail at the time the alleged overdetentions occurred, he cannot be responsible
7
for the alleged overdetentions in his individual capacity. We therefore remand to
the district court to dismiss Plaintiffs’ overdetention claims against Sheriff
Freeman for monetary damages in his individual capacity.
With respect to Sheriff Barrett, Defendants have not adequately preserved
for appeal the district court’s denial of qualified immunity from Plaintiffs’
overdetention claims against her in her individual capacity. Defendants failed to
properly raise this as an issue in their consolidated, initial brief, making only a
passing reference to it in a footnote. Although Defendants discuss the issue in
greater detail in their consolidated reply brief, the single footnote in the initial
brief did not sufficiently preserve the issue. A party may not argue an issue in its
reply brief that was not preserved in its initial brief. See Tallahassee Mem’l Reg’l
Med. Ctr. v. Bowen, 815 F.2d 1435, 1446 n.16 (11th Cir. 1987) (stating that single
footnote in initial brief did not sufficiently preserve issue that was argued in reply
brief); see also United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir.
2003) (holding issue abandoned where, although the defendant made passing
references to issue in brief, the references were undertaken as background to
claims that he expressly advanced). Our determination that Defendants failed to
adequately raise this issue on appeal now is without prejudice to raise the issue
before us at a later stage.
8
D. Municipal Liability of the County and the City under § 1983
To impose § 1983 liability on a municipality, a plaintiff must show: (1) that
his constitutional rights were violated; (2) that the municipality had a custom or
policy that constituted deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation, or was the “moving force” behind
the violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004); see also
City of Canton v. Harris, 489 U.S. 378, 388-89 (1989). We need not address
whether Plaintiffs’ allegations establish constitutional violations based on the
overdetentions at the Jail because, even if they do, Plaintiffs have failed to
otherwise establish claims of municipal liability against the County and City for
any constitutional injuries based on those overdetentions.5
The County and City cannot be held liable under § 1983 based on their
alleged “control” of the Sheriffs’ overdetention policies at the Jail. With respect
to the City, the district court correctly noted that Plaintiffs do not advance any
allegations that the City controls the overdetention policies at the Jail. Although
5
We note that although Defendants adequately raise the issue of municipal liability on
appeal, they did not fully brief the first prong of the municipal liability analysis. Defendants did
not specifically address whether the alleged overdetentions violated Plaintiffs’ constitutional
rights, but instead assumed constitutional violations and addressed only whether those rights
were clearly established. Without having full briefing on the first prong, and because we
conclude infra that Plaintiffs fail to satisfy the causation prong of the municipal liability analysis,
we decline to address the constitutional issue.
9
Plaintiffs do allege that the County controls such polices, our precedent makes
clear the Sheriffs do not act as policymakers for the County when performing their
function of processing the release of inmates. See Grech v. Clayton County, 335
F.3d 1326, 1332 (11th Cir. 2003) (en banc); Manders, 338 F.3d at 1328. Thus, the
overdetention polices at the Jail cannot be attributed to the County or the City.
Plaintiffs identify another set of “policies” which they claim the City and
County do control, namely the County’s and the City’s policies of committing
arrestees to the Jail through their respective police departments. Nonetheless,
even if such policies evidenced a “deliberate indifference” to Plaintiffs’
constitutional rights, Plaintiffs have not alleged the requisite causation between
such policies and the alleged constitutional violations that resulted from the
Sheriffs’ conduct in managing the release process at the Jail, over which the
County and City have no control. Based on the conclusory allegations in the
Complaint, we cannot conclude that placement of arrestees at the Jail was the
“moving force” that animated the behavior of the Sheriffs resulting in the
constitutional injuries. We reverse the district court’s denial of the County’s and
City’s motions to dismiss the overdetention claims.
10
II. CONCLUSION
Accordingly, we affirm the district court’s dismissal of the overdetention
claims for monetary damages against Sheriff Freeman in his official capacity; we
remand for the district court to dismiss Plaintiffs’ overdetention claims for
injunctive relief against Sheriff Freeman in his official capacity; we remand for the
district court to dismiss Plaintiffs’ overdetention claims for monetary damages
against Sheriff Freeman in his individual capacity; and we reverse the denial of
the County’s and the City’s motions to dismiss Plaintiffs’ overdetention claims
against them.
We do not address Plaintiffs’ overdetention claims for monetary damages
against Sheriff Barrett in her individual capacity. Thus, only Plaintiffs’
overdetention claims for monetary damages against Sheriff Barrett in her
individual capacity will remain after remand consistent with our instructions.
Nothing herein rules on the merits of those claims or on whether Plaintiffs’
allegations state a constitutional violation.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN
PART.
11
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IN THE SUPREME COURT OF PENNSYLVANIA
In the Matter of : No. 204 DB 2015 (No. 12 RST 2016)
:
:
PAMELA A. McCALLUM : Attorney Registration No. 37187
:
PETITION FOR REINSTATEMENT :
FROM INACTIVE STATUS : (Allegheny County)
ORDER
PER CURIAM
AND NOW, this 17th day of February, 2016, the Report and Recommendation of
Disciplinary Board Member dated February 5, 2016, is approved and it is ORDERED
that Pamela A. McCallum, who has been on Inactive Status, has never been suspended
or disbarred, and has demonstrated that she has the moral qualifications, competency
and learning in law required for admission to practice in the Commonwealth, shall be
and is, hereby reinstated to active status as a member of the Bar of this
Commonwealth. The expenses incurred by the Board in the investigation and
processing of this matter shall be paid by the Petitioner.
Mr. Justice Eakin did not participate in the consideration or decision of this
matter.
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908 So.2d 728 (2005)
In the Matter of the Extension of the Boundaries of the City of Pearl, Mississippi: Carol POOLE, Robert Pitts, et al.
v.
CITY OF PEARL, Mississippi.
No. 2002-AN-02139-SCT.
Supreme Court of Mississippi.
August 11, 2005.
*730 James H. Herring, attorney for appellants.
Jerry L. Mills, Ridgeland, James A. Bobo, Brandon, attorneys for appellee.
EN BANC.
DICKINSON, Justice, for the Court:
¶ 1. Today, we review yet another vigorously contested annexation effort by one of our municipalities. Perhaps no area of the law generates more emotional participation by members of the public. The idea of having one's home, property and family forced into a city, subjecting the land to city taxes and the family to city ordinances, is quite distasteful to many, particularly those who feel they have no say in the matter under our current law.
¶ 2. In this case, both Rankin County chancellors recused. The Honorable James L. Roberts, Jr., was appointed as a special chancellor to hear the case. Finding the requirements of law had been met, Special Chancellor Roberts approved the annexation. The Objectors have appealed.
INTRODUCTION
¶ 3. In the case before us, counsel for the City of Pearl reminds us that the chancery court, following this Court's precedent, found the annexation to be reasonable. Counsel for some of the Objectors urges this Court to "change the course" of annexation by adding the requirement of an affirmative vote by a majority of the citizens living in the proposed annexation area. This, according to the Objectors, would more closely level the playing field where cities spend large sums of taxpayer dollars to hire lawyers and experts to establish the "reasonableness" of a proposed annexation, while objectors are frequently relegated to bake sales and car washes to raise funds to battle annexation.
¶ 4. Annexation is an exercise of legislative not judicial power.[1] This Court stated almost eighty years ago:
Municipal corporations are now, as they have always been in this state, purely creatures of legislative will; governed, and the extent of their powers limited, by express grants; invested, for purposes of public convenience, with certain expressed delegations of governmental power; their granted powers subject at all times to be enlarged or diminished;. . . their powers, their rights, their corporate existence, dependent entirely upon legislative discretion, . . . Unless expressly limited by constitutional provision, the legislative department has absolute power over municipalities.
Gully v. Williams Bros., Inc., 182 Miss. 119, 180 So. 400, 405-06 (Miss.1938).
¶ 5. There is no uniform method of annexation recognized in the various states. In some states, direct legislative action is required to enlarge or reduce a municipality's boundary lines. In other states, the legislature statutorily mandates certain conditions for annexation, leaving the final decision to the local governing boards. In many of these circumstances, the process of annexation is begun by a "petition of voters, taxable inhabitants, residents, or the like, and to be submitted *731 to a vote of designated electors." 2 McQuillin Mun. Corp. § 7.14 (3rd ed.). Still another method of annexation allows for a petition to the courts to instigate annexation. Ultimately, granting to municipalities the substantive right to annex unincorporated areas is a power reserved exclusively to the state legislatures.
Annexation in Mississippi
¶ 6. Since 1892, the Mississippi Legislature has provided that our courts must determine the reasonableness of a municipality's desire to expand or reduce its boundaries. 1892 Miss. Laws ch. 66, § 3. Annexation statutes in Mississippi have been fairly consistent since 1892. Our current statute, adopted on April 18, 1950, provides that a chancellor, rather than a jury, must determine that "reasonable public and municipal services will be rendered in the annexed territory within a reasonable time," and that the proposed annexation is "reasonable and is required by the public convenience and necessity." Miss.Code Ann. § 21-1-33.
¶ 7. The chancery courts (hearing annexation cases) and this Court (reviewing the appeals of many of those cases) encounter the recurring thunderous objection of many living in a proposed annexation area who believe they should be allowed to vote before being taken into a city. A frequent argument presented is that persons who purchased property out in the county to escape "city living" should not have their decision rendered null and void without a vote.
¶ 8. Every year since 1997, approximately twelve bills or resolutions have been proposed in the Legislature on the subject of annexation. In the 2005 regular session of the Mississippi Legislature, eleven separate bills, including a proposed constitutional amendment, were introduced to radically change annexation procedures. See House Bills 187, 216, 292, 483, 643, 761, 783, 796, 1169; House Concurrent Resolution 32; and Senate Bill 2889. Most of the bills sought to abolish the current method of annexation (having a chancellor approve an annexation's reasonableness) and replace it with an election to determine the reasonableness of an annexation. Several bills required an approval vote in the territory the municipality sought to annex. Some of the bills required a simple majority vote of the qualified electors residing in the proposed annexation area. One bill required a majority vote in both the city and the proposed annexation area, while still another bill required approval of 60% of the qualified electors residing in the proposed annexation area. One member of the House of Representatives proposed a constitutional amendment which would have required a majority vote in a special election. All eleven bills died in committee, leaving intact and unchanged the statute enacted in 1950.
¶ 9. Thus, accepting as we must the Legislature's exclusive authority to make and change the law; and accepting as we must our limitation to interpret and apply the laws passed by the Legislature, we now proceed to decide this case, not unmindful of the substantial public dissent to our current law; but ever mindful that such dissent is more properly communicated to members of the Legislature than to the chancellors and Justices on this Court.
BACKGROUND FACTS AND PROCEEDINGS
¶ 10. On July 19, 2000, the City of Pearl filed its petition in the Rankin County Chancery Court, seeking to annex approximately 2.2 square miles. The proposed annexation area ("PAA") is bounded on the west by Jackson Municipal Airport, on the east by the City of Brandon, on the north by City of Flowood, and on the south by the City of Pearl. Because the *732 PAA included property within the jurisdiction of the Jackson Municipal Airport Authority ("Airport Authority"), an objection was filed by both the Airport Authority and the City of Jackson. This objection culminated in a joint motion for summary judgment, seeking exclusion from the annexation approximately 40 acres. The chancellor granted the motion and the Airport Authority and the City of Jackson ceased their efforts as Objectors. Objections to the annexation were also filed by two groups of private citizens, one known as the Poole Objectors and the other as the Pitts Objectors.
¶ 11. During the course of the twenty-five day trial which began on August 13, 2001, the special chancellor, counsel, and representatives of the parties toured the proposed annexation area and parts of the City of Pearl. At the conclusion of the trial, Special Chancellor Roberts found that, under the totality of the circumstances, the annexation was reasonable.
STANDARD OF REVIEW
¶ 12. When a chancellor finds an annexation to be reasonable, this Court will reverse only when the "chancellor's decision is manifestly wrong and is not supported by substantial and credible evidence." In re Extension of Boundaries of City of Winona, 879 So.2d 966, 971 (Miss.2004). Further,
[w]here there is conflicting, credible evidence, we defer to the findings below. Findings of fact made in the context of conflicting, credible evidence may not be disturbed unless this Court can say that from all the evidence that such findings are manifestly wrong, given the weight of the evidence. We may only reverse where the Chancery Court has employed erroneous legal standards or where we are left with a firm and definite conviction that a mistake has been made. "The judicial function is limited to the question of whether the annexation is reasonable."
Id. See also In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270, 277 (Miss.1999); McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987); Extension of Boundaries of City of Moss Point v. Sherman, 492 So.2d 289, 290 (Miss.1986); Enlargement of Boundaries of Yazoo City v. City of Yazoo City, 452 So.2d 837, 838 (Miss.1984); Extension of Boundaries of City of Clinton, 450 So.2d 85, 89 (Miss.1984).
ANALYSIS
¶ 13. Although the constitutional portion of the statute which controls annexation litigation requires only that the chancellor find the proposed annexation to be reasonable, this Court's historical affection for tests, lists, and factors has led to the extra-statutory development of twelve "indicia" of reasonableness, which are: (1) need for expansion, (2) path of growth, (3) potential health hazards from sewage and waste disposal in the annexed areas, (4) financial ability to make improvements and furnish services promised, (5) need for zoning and overall planning, (6) need for municipal services, (7) presence of natural barriers between municipality and proposed annexation area, (8) past performance, (9) impact on residents and property owners, (10) impact on the voting strength of protected minority groups, (11) benefits enjoyed by the PAA because of its proximity to the municipality without paying its share of the taxes, and (12) other factors. In re Extension of Boundaries of City of Winona, 879 So.2d at 972-73.
¶ 14. Although some fall into the trap of strict adherence to the indicia as though they were twelve conditions precedent to an annexation, this Court has held *733 otherwise. The twelve indicia of reasonableness are not to be treated as twelve distinct tests, rather, the chancellor must weigh the totality of the circumstances, using these twelve indicia of reasonableness only as a guide. Id. at 993 (Dickinson, J., dissenting) citing Matter of Enlargement of Municipal Boundaries of the City of Jackson, 691 So.2d 978, 980 (Miss.1997). See also Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 553 (Miss.1995), wherein we stated, "This Court has frequently reiterated its position that the factors to be considered are not to be treated as separate, independent tests but rather indicia of reasonableness, and that the ultimate determination must be whether the annexation is reasonable under the totality of the circumstances."
¶ 15. We turn now to the special chancellor's analysis of Pearl's proposed annexation to determine whether his finding of reasonableness was supported by substantial and credible evidence.
1. Need for Expansion
¶ 16. In examining Pearl's claim of a need for expansion, the special chancellor stated:
Clearly, spillover growth has occurred into the proposed annexation area, and it is not required that a city be built out prior to spillover. While Pearl has considerable land available for development within its present borders, this alone is not the test, and the proposed annexation area is needed on the north side which presently has little developable land available. The City of Pearl is growing, both residentially and commercially, as is the proposed annexation area residentially, and it is reasonable that this small area be added to Pearl, even though the tax base may be unneeded by Pearl. The present City and the proposed annexation area are surrounded on all sides by municipalities and/or state institutions and a sizeable flood plain. The combination of these municipalities, the flood plains, building activity, and the fact that an unzoned Rankin County permits uncontrolled growth, all combines to show a need for expansion in the present City.
¶ 17. Although refusing to establish a litmus test, this Court has in prior cases approved numerous factors to be considered by a chancellor in determining whether a municipality has a need for expansion. These factors include the city's spillover development into the proposed annexation area;[2] the city's population and internal growth;[3] the city's need for developable land,[4] and its remaining vacant land within the city;[5] the need for comprehensive planning for growth in the annexation area;[6] increased traffic counts;[7]*734 the need to maintain and expand the City's tax base;[8] limitations due to geography and surrounding cities;[9] environmental influences;[10] the city's need to exercise control over the proposed annexation area to provide comprehensive planning and growth;[11] and increased new building permit activity.[12]
Spillover development into the PAA
¶ 18. According to the exhibits introduced by the City and other evidence presented at trial, the only meaningful access road through the PAA, which connects the City to the substantial growth and development along Lakeland Drive (Highway 25), is El Dorado Road. During the past decade, substantial residential development has occurred along this corridor, including more than six hundred new residential units between U.S. Highway 80 and Old Brandon Road. There has also been, to a lesser extent, some commercial development. The City provided evidence of growth and development north along El Dorado Road, including over thirty instances of residential and commercial construction.
¶ 19. Michael Slaughter, the City's expert in the fields of civil engineering and urban and regional planning, testified that spillover growth into the PAA from Pearl was taking place. While Pearl, with a population density of over 1,000 persons per acre, increased its population by approximately 12% from 1990 to 2000, the PAA experienced a 33% increase in population during the same period and increased its population density from 283 persons per square mile in 1990, to 377 in 2000. Relying on a field study, Slaughter testified that both commercial and residential development was occurring in the PAA. Furthermore, Slaughter found the PAA "in dire need of proper planning and zoning."
¶ 20. Slaughter's testimony, together with the other evidence in the record, was considered by the special chancellor, and we cannot say he was manifestly wrong in his analysis of this factor.
The City's population and internal growth
¶ 21. The City's population increased by over twelve % from 1990 to 2000, and during that same period, the number of dwelling units increased from 19,588 to 21,961. While not an overwhelming population explosion, the City's population is steadily increasing. This Court recently upheld an annexation by a city whose population growth "decreased by 7.6% from 1980 to 1990." In re Extension of Boundaries of City of Winona, 879 So.2d at 993 (Dickinson, J., dissenting). Thus, we are unable to say that the special chancellor was manifestly wrong to consider the City of Pearl's twelve% population increase as a factor supporting the reasonableness of the annexation.
The City's need for developable land
¶ 22. The Objectors point out that the City of Pearl has approximately 5.7 square miles of vacant, developable land left after its 1999 annexation, suitable for residential *735 development. Additionally, the Objectors point to Mayor Jimmy Foster's testimony that the Riverwind subdivision on Pearson Road, south of I-20, can accommodate substantial residential development. The Objectors argue that the availability of land for residential development is particularly important in this case because Mayor Foster testified that the PAA would remain residential if the annexation is approved.
¶ 23. The City recognizes it has substantial land available for residential development. It points out, however, that most of it lies south of I-20 in the area it annexed in 1999 and south of a portion of the area it annexed in 1978. However, the special chancellor found "little developable land" to the north in the direction of the PAA.
¶ 24. Our previous annexation decisions clearly distinguish the impact upon reasonableness of available developable land in a city's path of growth as opposed to developable land in other areas. We have stated that "the fact that there may be some other vacant lands already available in the City does not prohibit annexation nor does it require that an indicia be fount to be against the community proposing annexation." Id. at 973. Similarly, in In re Extension of Boundaries of City of Hattiesburg, 840 So.2d 69 (Miss.2003), the chancellor found the City of Hattiesburg had "large sections of undeveloped land in South Hattiesburg." Nevertheless, this Court refused to reverse the chancellor's finding that "Hattiesburg's need to expand was reasonable," based upon a need for developable land to the west, in the direction of the proposed annexation area. Id. at 84-85.
¶ 25. In arguing that Pearl has no need for expansion which would support its annexation effort, the Objectors focus on Pearl's slowly growing residential population, which increased approximately 12% from 1990 to 2000. However, the record reflects that the density of population in the City of Pearl is more than double every other municipality in Rankin County, except Brandon. Its density is four times that of neighboring Flowood.
¶ 26. At trial, Shelly Johnstone testified on behalf of the Objectors as an expert in the field of regional and municipal planning. Even her testimony suggests the special chancellor's finding of Pearl's need for expansion was reasonable and supported by the evidence. For example, she testified that at a level of about two-thirds build-out,[13] communities "need to be considering adding territory to their community." She further stated that Pearl's build-out was 74 percent, leaving just 26 percent of the current city available for development. Other testimony established that the PAA was only 57.2 percent developed.
¶ 27. Based upon the record, we cannot say it was manifest error for the special chancellor to find that Pearl has a need for expansion which supports Pearl's annexation of the PAA.
2. Path of Growth
¶ 28. In discussing whether the PAA lies within the path of growth of Pearl, the special chancellor found:
The proposed annexation area does lie in the Pearl path of growth based upon recent building in Pearl, as well as within the proposed annexation area. Good roads exist and connect the two, and the proposed annexation area is Pearl's only northern path for growth. Quite importantly, *736 Pearl is the only water provider to the proposed annexation area.
¶ 29. When determining the "path of growth" factor in prior cases, this Court has held that the inquiry is primarily whether the PAA is in a path of growth for the municipality, not necessarily the primary, main, or most urgent path. See City of Winona, 879 So.2d at 977; Extension of the Boundaries of the City of Hattiesburg, 840 So.2d at 86-87; In re City of Horn Lake, 630 So.2d 10, 19 (Miss.1993). Although many factors can weigh on a chancellor's evaluation of a municipality's path of growth, this Court has held that the most important factors are "the adjacency of the proposed annexation area to the City, accessibility of the proposed annexation area by City streets, and spillover of urban development into the proposed annexation area." City of Winona, 879 So.2d at 977, citing In re Enlargement and Extension of Boundaries of City of Macon, 854 So.2d 1029, 1037 (Miss.2003).
¶ 30. There is no dispute that the PAA is adjacent to the City of Pearl. Also, as previously discussed, El Dorado Road traverses the PAA and connects Pearl to the substantial development and amenities to the north along Lakeland Drive. This road begins in the City of Pearl as Cross Park Drive. Pearl's spillover development into the PAA has been previously discussed.
¶ 31. Because of the proximity of Flowood and Brandon, Johnstone testified that the PAA "is not uniquely a path of growth for Pearl" and that much of Pearl's recent development has been to the south and west. However, the key question on this point is whether the PAA is in a path of growth of Pearl, regardless of whether there may be other paths of growth. Also, the fact that the PAA may lie in the path of growth of other municipalities does not negate that it also lies in a path of growth of Pearl.
¶ 32. As previously mentioned, the main corridor into and out of the PAA is El Dorado Road which enters the PAA from Pearl. Further, because of the proximity of Flowood to the northwest, the airport to the north, and Brandon to the northeast, the PAA is Pearl's only possible northern path of growth. When planning the location of fire station # 4, Pearl officials chose its location for its proximity to the El Dorado Road area "knowing or thinking that we may annex the El Dorado area." Also, testimony established that Pearl has improved the road conditions of the city streets near the PAA, indicating the growth and activity in that direction. Additionally, Mayor Foster testified that between 1999 and the start of this trial, Pearl has experienced new commercial growth near the PAA in its airport metroplex:
It [the metroplex] has changed tremendously. There's a retail, four or five other businesses in there. Suscom Communications moved right there (indicating). Mac Papers, which was headquartered in the state of Florida, moved right there (indicating) . . . There are some things going on right now. There is a Credit Union that isI believe it's Mississippi Telco Credit Union that is moving into that area. We start construction, I understand, in the next few months. There is going to be a small retail outlet built right there, and just several other things that are under construction now, actually. Some of them may even be finished . . . On Crosspark Drive, there has been an office park built . . . there's been a convenient store constructed in the corner of Old Brandon Road and Crosspark.
Finally, he stated that the area immediately to the east of these commercial projects *737 is a residential development finished just two years prior to the trial.
Environmental influences
¶ 33. The City of Pearl has no options for expansion to the west because of the proximity of Richland and Flowood. It has no options for expansion to the east because of the proximity of Brandon. The City produced evidence of substantial flood plains within its current boundaries, and to the south. Thus, due to the flood plains to the south, Pearl's only viable option for expansion is to the north. Because of the proximity of Flowood, the airport, and Brandon, northern expansion is limited to the PAA.
¶ 34. Considering these factors, and based upon the evidence in the record, we cannot say the special chancellor was manifestly wrong in finding the PAA to be in a path of growth of Pearl.
3. Potential Health Hazards
¶ 35. Some of the factors this Court has acknowledged in prior cases for this indicia of reasonableness are: (1) potential health hazards from sewage and waste disposal; (2) a large number of septic tanks in the area; (3) soil conditions which are not conducive to on-site septic systems; (4) open dumping of garbage; and (5) standing water and sewage. City of Winona, 879 So.2d at 979 (citations omitted).
¶ 36. In considering the potential health hazards, the special chancellor held:
It is undisputed that potential health hazards exist in some parts of the proposed annexation area because no central sanitary system is available. While septic tanks and private systems are workable, there is no overall monitoring or supervision, and a unified system can eliminate problems resulting from private systems, standing water, and the like. The fact that Pearl may have problems in certain areas is not controlling, as this is almost definitely true of most municipalities. Pearl may improve its own, but it certainly may improve the proposed annexation area in regard to potential health hazards.
¶ 37. In briefing this indicator, the Objectors focused on the current health hazards present in the City of Pearl rather than the lack of health hazards in the PAA. A proper analysis must focus on potential health hazards from sewage and waste disposal in the proposed annexation areas, and the trial court must consider the potential effect or impact of health hazards on residents of the PAA. See City of Winona, 879 So.2d at 971; In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d at 280.
¶ 38. The municipality is not required to show that potential health hazards in the PAA affect the citizens of the municipality. A municipality's track record for correcting and preventing health hazards within its city limits should certainly be a factor for a chancellor to consider in evaluating the potential health hazards of the PAA. However, the primary focus must be on hazards within the PAA.
¶ 39. The City called Eugene Herring, an environmental health program specialist with the Mississippi State Department of Health, to testify as an expert. Herring testified concerning numerous potential health hazards specifically identified in the PAA, created by individually owned septic tanks, sewerage discharge, and the lack of a central sewerage disposal system.
¶ 40. The City also called Carl Furr, an expert civil engineer, who provided the following testimony:
[The PAA] is going to grow. This area is going to proliferate. It cannot continue to proliferate with septic tanks, or it's going to be real serious problem out *738 there in the future. Septic tanks are something that you really look at out in rural areas of the county, rather than inside a compact area as this particular area is. It's got to be where, in this type of soil classification we have in this Jackson area, where you've got the clays, et cetera, that septic tanks simply won't continue to work for this type of built-up area. So, with the rapidly growing, it is going to be very, very difficult to continue to proliferate with septic tanks.
¶ 41. We cannot say that the special chancellor was manifestly wrong to find that this indicator supported the reasonableness of annexation.
4. Financial Ability to Make Improvements and Furnish Services
¶ 42. When analyzing a municipality's financial ability to make improvements and furnish services to a proposed annexation area, courts have considered several factors, including: (1) present financial condition of the municipality; (2) sales tax revenue history; (3) recent equipment purchases; (4) the financial plan and department reports proposed for implementing and fiscally carrying out the annexation; (5) fund balances; (6) the City's bonding capacity; and (7) expected amount of revenue to be received from taxes in the annexed area. City of Winona, 879 So.2d at 980-81 (citations omitted).
¶ 43. After evaluating Pearl's financial stability, the special chancellor determined:
Pearl is in stable and excellent financial condition as reflected by the testimony of experts Ron Morgan, Demery Grubbs and Michael Slaughter. Moody's Investment Service (Exhibit P-18) reflects the same, and sales tax revenue is healthy (Exhibit P-79, Table 4). An extensive and detailed plan has been developed by Pearl to deal with the proposed annexation, which clearly shows Pearl's ability to financially handle the transaction. Pearl's fund balances continue to grow and increase, and its projections reflect the same (Exhibit P-79). Pearl's bonding capacity is strong, and the proposed annexation area would also produce revenue to Pearl. The evidence clearly indicates, speculation to the contrary, that Pearl has the financial ability to make the promised improvements and provide all services to the proposed annexation area.
¶ 44. The exhibits mentioned by the special chancellor clearly and concisely illustrate Pearl's financial stability. Pearl's fire chief, Lewis Waggoner, and its chief budget officer, Ronnie Morgan, testified to the continual upgrades in equipment for the fire department. Further, at the time of trial, Pearl was at 52% general operating bonded indebtedness. Specifically addressing Pearl's financial stability, Demery Grubbs, an expert in the field of municipal finance, testified that
The services identified and the facilities identified in [Pearl's Services and Facilities Plan] and the revenue that have been projected within this plan to pay for those services and facilities are well within the means and the financial ability of Pearl to provide those services,
while Mike Slaughter, an expert in the field of urban and regional planning and the associated field of civil engineering, testified that, contrary to the objectors' assertions, this annexation "is not a tax-grab to try to shore up any deficiencies in the City of Pearl" because "the City of Pearl can continue to provide the services to its current businesses and residents without this annexation." The testimony and exhibits provide evidentiary support for the special chancellor's finding that Pearl has the financial ability to make improvements and furnish services to the PAA as promised.
*739 5. Need for Zoning and Overall Planning
¶ 45. This Court gives chancellors a wide latitude of discretion in analyzing whether this indicator weighs against annexation. Specifically, "[t]his Court has approved annexations even where the City does not plan to provide zoning and planning and where the County has in force its own zoning and planning ordinances." In re Enlargement and Extension of Boundaries of City of Macon, 854 So.2d 1029, 1041 (Miss.2003).
¶ 46. For the zoning and planning factor, the chancellor found:
While Rankin County has recognized a need for planning, it has no zoning ordinance as testimony closed in this trial. The proposed annexation area, as would likely any unregulated area, contains some incompatible uses, and the Court believes zoning, however unpopular, has much to commend it. The inspection tour taken in this trial almost alone convinced the Court of the need for land use regulation afforded by zoning. The Court recognizes that existing use may be "grandfathered" and/or "excepted" but that all other areas will likely be enhanced by zoning. Community standards generally exert strong influences on what is contained therein, and the Court would be mildly surprised to learn that any adult entertainment establishment had located in the proposed annexation area, as objectors note. Zoning is comprehensive, and restrictive covenants apply only to the area involved. Zoning is often unpopular, and creates terrific legal conflicts; yet, it can and does bring about much good and, while the evidence supports a need for zoning, the inspection tour alone convinced the Court.
¶ 47. The chancellor based his decision that the PAA needs zoning and overall planning on his inspection tour and other evidence in the record. Some of the photographic exhibits reveal incompatible land uses in the PAA. For example, Roger Heatherly, director of community development for the City of Pearl, testified that photograph six shows "an abandoned vehicle, dilapidated building, and what is appears to be a house in the background." Photographs 21, 22, 39, and 40 reveal abandoned vehicles. Photograph 51 "shows unsightly conditions in a residence and a building beginning tothat is partially dilapidated." Photograph 50 has "a lot of debris . . . 59 shows an abandoned vehicle, a TV, assorted debris, a mobile home that's not in good repair, possibly abandoned." "Assorted debris scattered throughout the property" is shown in photograph 79 and "35 is showing 2 abandoned vehicles, possibly a third one in the background." Photograph 41 is an example of an incompatible land use with "a business, a mobile home and a residential, side-by-side." Johnstone testified that the newly enacted subdivision regulations for Rankin County were fairly consistent with their Pearl counterparts. She further testified "that Rankin County is moving to the International Code Council and sending their inspectors to be trained for those." While Rankin County has many building codes and sign ordinances similar to Pearl's building codes and sign ordinances, Rankin County has no zoning ordinance.
¶ 48. Rankin County's growing commitment to code enforcement and subdivision ordinances is further evidence of the desirability of managing development with codes, ordinances, and overall planning. Since Pearl has zoning ordinances to assist overall planning while Rankin County does not, we cannot say the special chancellor was manifestly wrong to weigh this factor in favor of approval of the annexation.
*740 6. Need for Municipal Services
¶ 49. Factors helpful in determining the PAA's need for municipal services include: (1) requests for water and sewage services; (2) plan of the City to provide first response fire protection; (3) adequacy of existing fire protection; (4) plan of the City to provide police protection; (5) plan of City to provide increased solid waste collection; (6) use of septic tanks in the proposed annexation area; and (7) population density. City of Winona, 879 So.2d at 984 (citations omitted).
¶ 50. However, this Court has also held that "[w]hen current services are adequate, the fact that annexation may enhance municipal services should not be given much relevance, especially as here where the evidence of the likelihood of enhanced service is greatly conflicting." Matter of Enlargement and Extension of the Mun. Boundaries of the City of Jackson, 691 So.2d 978, 984 (Miss.1997) (citation omitted).
¶ 51. In evaluating the PAA's need for municipal services, Special Chancellor Roberts[14] determined:
The City of Pearl already provides water service to the proposed annexation area and sewer service in the Ashbury development. Since water service presently exists there, it, logically could be more easily improved and expanded. Pearl has several fire stations closer to the proposed annexation area than the nearest volunteer fire station which serves the proposed annexation area. After annexation the proposed annexation area takes Pearl's Superior Class 5 rating, rather than its present Class 10, an unprotected and the worst rating in the state. The availability of water, and a professional fire fighting department will clearly enhance the safety of the proposed annexation area. The existing population density, and the likely continued growth pattern, clearly establish a need for municipal level fire protection. The fact that tragedy has not occurred does not guarantee that it never will. While the evidence solidly establishes that the proposed annexation area is a law abiding area and that the Rankin County Sheriff's Office provides good service, it is also true that the City could and should be able to provide not only comparable but, likely, quicker service, to the small annexation area. The Court, with some law enforcement administrative experience, believes the addition of municipal service to the proposed annexation area would constitute more efficient service. A centralized sanitary sewer system would more efficiently serve the proposed annexation area, and Pearl can provide the same better than any other provider. These centralized services are needed by the residents of the proposed annexation area.
¶ 52. The PAA's primary fire department is the Langford Volunteer Fire Department. However, the record reflects that Pearl's fire departmentwhich serves as the PAA's secondary provider of fire protectionis closer in proximity to the PAA and is equipped with more advanced equipment and more highly trained personnel.
¶ 53. Although Pearl is already the exclusive provider of potable water to the PAA, it currently provides no central sewerage disposal service to the residents of *741 the PAA. As the provider of water for the area, Pearl installed fire hydrants and maintains and improves the system as needed to sustain the growth that the PAA has experienced. Further, Pearl does not charge Rankin County for any water that the Langford Fire Department requires for use in the PAA.
¶ 54. The record reflects that, other than a central sewerage collection system, the PAA already has most all of the services it needs. In evaluating the PAA's need for a central sewerage collection system and better fire and police protection, the special chancellor weighed this factor in favor of annexation. We find his decision to be a close call, but not manifestly erroneous.
7. Presence of Natural Barriers
¶ 55. The special chancellor held that "[s]ince the only natural barriers involved here are ridge lines which might impact a central sewer system, this is not an obstacle to annexation. The evidence showed no adverse effect by the ridge lines." The Objectors do not challenge the special chancellor's finding in this regard.
8. Past Performance
¶ 56. This Court has approved the examination of a municipality's record of keeping promises made in previous annexations as some indication of whether or not the municipality would fulfill the promises to the proposed annexation area. See Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 560 (Miss.1995); Matter of Extension of Boundaries of City of Jackson, 551 So.2d 861, 867 (Miss.1989); Extension Boundaries of City of Moss Point v. Sherman, 492 So.2d 289, 290 (Miss.1986); City of Biloxi v. Cawley, 332 So.2d 749, 751 (Miss.1976).
¶ 57. In analyzing Pearl's past performance, Special Chancellor Roberts ascertained:
The evidence indicates that Pearl has performed well, not perfectly, in the past, as indicated by its 1978 Mississippi Supreme Court case 365 So.2d 952 (Miss.1978). All promises and city services listed have been addressed in a forward and progressive fashion in terms of water, sewer, fire and police protection, waste disposal, streets, and so forth. The trailer parks, grandfathered in, remain unsightly and a problem, but, legally, the City has few options in this regard. Overall, Pearl's past performance passes the acid test, and all city officials indicated, credibly, that good performance would continue.
¶ 58. In Pearl's annexation of three parcels of land in 1978, it promised the following list of promised improvements: prompt police, fire and pest protection; and within six years, grading, draining, and improving existing streets; installing water lines and fire hydrants; installing sewer lines; and installing street lighting. In re Extension of Boundaries of City of Pearl, 365 So.2d 952, 956 (Miss.1978).
¶ 59. Pearl presented evidence that these conditions had been substantially satisfied as well as continued progress on promises made to residents annexed in 1999. In fact, as to Pearl's past performance in correcting and/or improving drainage situations since incorporation, Carl Furr, the City's expert civil engineer, testified:
[t]he City of Pearl has been one that we represent that has been very aggressive and has hadwe've had ongoing wastewater projects ever since 1974 to address annexed areas and to address existing areas where we would upgrade and add any wells and tanks to the system. Pearl has been very aggressive *742 in their public works program and it continues to do so . . . The City of Pearl was a forerunner for Congress to pass appropriations of in excess of $10 million. The only city, the first city in Mississippi to do so, to go in and approve and riprap drainage ditches in the city of Pearl. It was a huge program administered by the then Soil Administration Service. And, as a result of that, other cities in the state saw what Pearl did and then that kind of proliferated from there. But they were forerunners in major drainage improvements. We've had a drainage plan in place since the early '70s that we have continued to work to channelize and replace inadequate structures that were put in prior to the annexation, and that's one of the reasons why it is good to be able to control that under an annexI mean under a municipality, than it is out in the country or county where you don't have a good tool to do that.
The Objectors focus on trailer parks and flooding problems within Pearl's city limits as proof of Pearl's bad past performance. However, evidence presented at trial suggested that the trailer parks were "grandfathered in" when Pearl was incorporated and that some of the flooding problem is due to the unregulated growth in a flood plain prior to incorporation. While Pearl has not perfectly fulfilled its promises and obligations from past annexations, the record supports the special chancellor's finding that it has substantially done so.
9. Impact on Residents and Property Owners
¶ 60. Regarding the impact on residents and other property owners, the special chancellor found:
The Court certainly sympathizes with the proposed annexation area objectors who wish to remain unincorporated, and the Court respects their apprehensions that their taxes will increase and that their land values will decrease. The proposed annexation area residents wish to remain as is, with no "citified" encroachment. Realistically, the area has changed, and is likely changing daily; the proposed annexation area is in a metropolitan area, and it is no longer rural, though it may seem so. It is growing and will do so whether annexed or not; annexation alone will not destroy any character already in existence, but it will plan for what is yet to be. Taxes will likely increase somewhat, but the benefit derived therefrom should exceed the cost. It is also just as probable that land values will increase rather than decrease; much of this may depend upon residents' conduct and expectations. Proposed annexation area children will not be required to change schools. Much of the impact is perceived, which is very important, but if the perceptions should turn into harsh reality, which is, hopefully, unlikely, there are other avenues of relief for proposed annexation area residents. Many objectors indicated that they simply did not like Pearl, did not want to be a part of it, and just found the idea repulsive, so to speak. The truth of the matter seems to be that no other municipality wants the proposed annexation area, and the proposed annexation area is too small and too close to Pearl to be overlooked. While the Court understands and respects the views of the proposed annexation area residents, the facts and the law applicable thereto favor Pearl in this situation. The actual economic impact on the proposed annexation area residents should be beneficial, rather than detrimental, but other avenues are open to them, if needed.
¶ 61. The Objectors' primary argument under this indicator is that annexation by *743 Pearl will decrease their property values. Over the City's objection, Johnstone, the Objectors' expert witness in the field of regional and municipal planning, testified concerning a survey she conducted by calling eleven central Mississippi realtors and asking their opinion of the impact of annexation by Pearl on property values. Johnstone admitted that she had never before compiled such a survey and was unaware of other urban planners compiling a similar survey. Thus, the City's objection would seem to have merit, and it is apparent the Special Chancellor placed little value on the uncrossexamined hearsay opinions of the eleven realtors.
¶ 62. Further evidence of a negative economic impact would be an increase in taxes and a connection fee for sewer services. This Court has addressed the impact of higher taxes in many prior annexation cases and has consistently held that the prospect of a tax increase is "insufficient to defeat annexation." In re Extension of Boundaries of City of Hattiesburg, 840 So.2d 69, 93 (Miss.2003) (citing In re Enlargement and Extension of Municipal Boundaries of the City of Biloxi, 744 So.2d at 284).
¶ 63. Therefore, this Court is left with questionable evidence of a perceived future drop in property values, a connection fee for central sewerage collection and disposal, and the subjective revulsion expressed by approximately twenty residents of the PAA.
¶ 64. As to the property values and connection fee, we find the special chancellor was well within his discretion to determine they did not weigh heavily against the proposed annexation. As to the desires of the residents of the PAA, we again point out that the Legislature has not seen fit to allow them to vote. Unless and until it does, we must refrain from doing so, as we are powerless to grant judicially what the Legislature withholds from its statutes.
10. Impact on the Voting Strength of Protected Minority Groups
¶ 65. The special chancellor held "[w]ithout contradiction, this factor favors annexation as it will have no adverse impact on the voting strength of African Americans, or any other minorities." The Objectors do not challenge that finding.
11. Benefits Enjoyed by the PAA because of its Proximity to the Municipality
¶ 66. After analyzing whether, because of their close proximity to Pearl, the residents of the PAA enjoy benefits without paying corresponding taxes, Special Chancellor Roberts held:
This factor appears somewhat equal on a "quid pro quo" basis, because the proposed annexation area residents pay their taxes, et cetera, and they pay for whatever they purchase in Pearl, if they do. Speculatively, however, as growth and development occur, the tie between the proposed annexation area and existing Pearl is going to remain, and this factor certainly does not preclude annexation. While the proposed annexation area has far more residents than the actual objectors, it seems reasonable that a few, some, or maybe, many, do benefit already from the proximity. It is clear that those objectors who testified denied any romance of proximity, but it also seems just as clear to the Court that the several hundred who did not object may very well romance the proximity.
¶ 67. It does not appear the special chancellor placed much weight on this factor. We find little in the record to indicate, one way or the other, whether the residents of the PAA enjoy untaxed benefits from the City. The PAA is surrounded *744 on all sides by four separate municipalities. Residents of the PAA have access to shopping in, and pay sales tax to, each of the municipalities. While the residents of the PAA clearly enjoy benefits because of their proximity to the various municipalities, we find it would be difficult from the record before us to determine which of those benefits are due to the proximity with Pearl, as opposed to Brandon, Flowood, or Jackson.
12. Other Factors
¶ 68. As an additional factor, the Objectors focused on the proposed annexation's probable impact on schools. To this factor, Special Chancellor Roberts responded "[a]t this time, there is no impact of annexation on schools, as school district lines do not automatically change with municipal annexation. No other factors oppose annexation."
¶ 69. With the repeal of Miss. Code Ann. § 37-7-611, a municipal annexation no longer mandates a change in school district boundary lines. Having raised no other additional factors to oppose annexation and finding that annexation does not automatically change a neighborhood's school district, it is our opinion that the Special Chancellor was not in error in holding that no other factors oppose annexation.
CONCLUSION
¶ 70. Pearl does not deny that it is still fighting to correct some of the problems that have been present since incorporation due to its unregulated growth prior to incorporation. When Pearl was incorporated in 1973, it "was a hodge-podge of buildings, mobile homes, roads, and sewer conveniences." City of Pearl, 365 So.2d 952, 957 (Miss.1978). In 1978 when this Court approved Pearl's annexation of three adjacent areas, we recognized the City of Pearl's desire to regulate these areas before they too became "densely populated with a `crazy quilt' situation of development which will require uprooting and a new start in the matter of water, streets, sewer, and other necessities that people have." Id. Similarly, Pearl has expressed a desire to regulate growth in the PAA to ease its transition into the municipality.
¶ 71. Based upon the City's burden of proving the reasonableness of a proposed annexation, and in concert with our requirement, absent an abuse of discretion, to leave undisturbed a chancellor's finding of reasonableness, we affirm the Special Chancellor's judgment approving the petition for annexation.
¶ 72. AFFIRMED.
WALLER AND COBB, P.JJ., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. SMITH, C.J., DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.
NOTES
[1] Matter of the Boundaries of City of Jackson, 551 So.2d 861, 863 (Miss.1989) ("Annexation is a legislative affair.")
[2] In re: Extension of Boundaries of City of Ridgeland, City of Jackson v. City of Ridgeland, 651 So.2d 548, 554 (Miss.1995).
[3] Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1174 (Miss.1994); In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270 (Miss.1999); In re: Extension of Boundaries of City of Ridgeland, City of Jackson v. City of Ridgeland, 651 So.2d at 554.
[4] Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1173 (Miss.1994).
[5] Extension of Boundaries of City of Ridgeland v. City of Ridgeland 651 So.2d 548, 555 (Miss.1995). See also In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270 (Miss.1999).
[6] Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 553 (Miss.1995).
[7] In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270, 279 (Miss.1999).
[8] Matter of Enlargement and Extension of the Mun. Boundaries of the City of Jackson, 691 So.2d 978, 989 (Miss.1997).
[9] In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270, 279 (Miss.1999).
[10] Id. Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, (Miss.1994); Matter of City of Horn Lake, 630 So.2d 10, 17, (Miss.1993).
[11] Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 553 (Miss.1995).
[12] Id.
[13] Build-out is the term that expresses the percentage of the municipality that is developed or in development. In other words, it is the percentage of the city no longer available for development.
[14] While serving as a distinguished Justice on this Court, Special Chancellor Roberts authored the majority opinion in City of Jackson and was therefore quite familiar with the concept of enhancement of municipal services already available to the proposed annexation area.
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Nationstar Mtge., LLC v Kamil (2017 NY Slip Op 08277)
Nationstar Mtge., LLC v Kamil
2017 NY Slip Op 08277
Decided on November 22, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
REINALDO E. RIVERA
SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.
2016-01665
(Index No. 9303/13)
[*1]Nationstar Mortgage, LLC, respondent,
vMuhammad T. Kamil, appellant, et al., defendants.
Bhatia & Associates, PLLC, New York, NY (Satish K. Bhatia of counsel), for appellant.
RAS Boriskin, LLC, Westbury, NY (Jason W. Creech and Ryan D. Mitola of counsel), and Sandelands Eyet LLP, New York, NY (Mitchell Zipkin of counsel), for respondent (one brief filed).
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Muhammad T. Kamil appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered October 13, 2015, which granted the plaintiff's motion for an order of reference.
ORDERED that the order is affirmed, with costs.
In support of its motion for an order of reference (see RPAPL 1321), the plaintiff submitted, inter alia, the affidavit of its document execution specialist, which set forth the facts establishing the claim, including that the plaintiff was the holder of the note and that the defendant Muhammad T. Kamil (hereinafter the defendant) defaulted under the terms of the note and mortgage, as well as proof that the defendant failed to answer within the time allowed (see US Bank N.A. v Louis, 148 AD3d 758, 759; US Bank N.A. v Smith, 132 AD3d 848, 850). The defendant opposed the motion by submitting the affirmation of his attorney, who argued that the plaintiff lacks standing and failed to comply with RPAPL 1302, 1303, 1304, and 1306. The Supreme Court granted the plaintiff's motion, and the defendant appeals. We affirm.
The defendant's contention that the plaintiff failed to comply with the notice provisions of RPAPL 1303 and the pleading requirements of RPAPL 1302 is without merit. The plaintiff provided proof that it had complied with the requirements thereof, and the defendant did not refute that proof (see PHH Mtge. Corp. v Israel, 120 AD3d 1329). The defendant's bare and unsubstantiated denial of receipt of notice pursuant to RPAPL 1303 was insufficient to rebut the presumption of proper service created by the affidavit of service (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103).
Since the defendant failed to appear or answer the complaint, and also failed to demonstrate grounds for vacating his default (see Nationstar Mortgage, LLC, v Kamil, ___ AD3d ___ [Appellate Division Docket No. 2015-02633; decided herewith]), he is precluded from asserting the plaintiff's lack of standing as a defense (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067, 1069; HSBC Bank USA v Angeles, 143 AD3d 671, 671; Chase Home Fin., LLC v Garcia, 140 AD3d [*2]820, 821).
The defendant's contention that the plaintiff's motion for an order of reference should have been denied on the basis that the plaintiff failed to make the motion within one year of his default in answering the complaint is not properly before this Court, as it was not raised before the Supreme Court (see U.S. Bank N.A. v Alba, 130 AD3d 715, 715-716).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for an order of reference (see US Bank N.A. v Louis, 148 AD3d at 759; HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944; Wells Fargo Bank, N.A. v Daskal, 142 AD3d 1071, 1073).
ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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9 Mich. App. 102 (1967)
155 N.W.2d 857
VRIESMAN
v.
ROSS.
Docket No. 2,343.
Michigan Court of Appeals.
Decided December 6, 1967.
Marcus, McCroskey, Libner, Reamon, Williams & Dilley, for plaintiff.
Scholten & Fant, for defendant.
*104 WISE, J.
The circuit court judge who heard this automobile negligence case ordered a judgment of no cause of action in favor of defendant, and plaintiff appeals.
The facts reveal that on February 2, 1963, an automobile being driven by defendant's mother, Helen V. Ross, collided with plaintiff's truck and semitrailer which was stopped and parked on the shoulder of plaintiff's side of US-31 in Berrien county, Michigan. It was established that the accident occurred as a result of the negligence of the defendant's mother. Mrs. Helen V. Ross and two children riding with her were killed. The plaintiff suffered personal injuries and his vehicle was extensively damaged.
Subsequently the plaintiff brought suit to recover damages in the amount of $15,000 asserting the liability of the defendant daughter as co-owner, pursuant to the provisions of CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101) of the Michigan vehicle code.
It appears that on July 1, 1958, a certificate of title to the automobile involved was issued in the names of Wilford A. and Helen V. Ross, parents of the defendant. Following the death of Mr. Ross, Helen V. Ross made application for and obtained a new certificate in the joint names of herself and the defendant, making the defendant the ostensible co-owner. At the time of the application for a new certificate of title the defendant was 14 years of age and presently is still a minor. Since shortly after her mother's death, the defendant has been under the legal guardianship of her uncle, Clarence E. Scott.
The vehicle was insured with the Wolverine Insurance Company, later called Tower Insurance Group, and Helen V. Ross was listed as the sole named insured.
*105 Subsequent to the collision, the defendant joined with the administrator of her mother's estate in making application for a duplicate certificate of title in her own name. After receiving such title, the Tower Insurance Group issued its check in the amount of $775 to the defendant in payment of the collision loss, recognizing the defendant's insurable interest as ostensible co-owner. The plaintiff indicated that the theory of estoppel does not apply to the instant case, in that the requisite elements are lacking.
The trial court determined that ownership of the vehicle had not vested in the defendant at the time of the collision, and hence she was not an "owner" within the meaning of the Michigan vehicle code.[1]
On appeal the plaintiff raises two questions. The first relates to whether at the time of the collision the defendant was the legal co-owner of the vehicle. The second involves a question of whether at the time of the collision the vehicle was being operated with the express or implied consent or knowledge of the defendant. The trial court did not address itself to the latter question nor will we, since it is not essential to our decision.
In this State the statutory language is explicit as to the requisites necessary for transferring legal title of a vehicle. Therefore in answering the plaintiff's first question we look to the pertinent provision of CLS 1956, § 257.233(d), as amended by PA 1959, No 250 (Stat Ann 1960 Rev § 9.1933[d])[2] to determine whether the alleged transfer was validly accomplished. It reads as follows:
"The owner shall indorse on the back of the certificate of title an assignment thereof with warranty of title in the form printed thereon with a statement *106 of all liens or encumbrances on said vehicle, sworn to before a notary public or some other person authorized by law to take acknowledgments, and deliver the same to the purchaser or transferee at the time of the delivery to him of such vehicle, which shall show the payment or satisfaction of any mortgage or lien as shown on the original title." (Emphasis supplied.)
The requirements of the statute are in mandatory terms, and case law has made it abundantly clear that failure to comply with the provisions negates the validity of the attempted transfer. See Waldron v. Drury's Van Lines, Inc. (1965), 1 Mich App 601; Drettmann v. Marchand (1953), 337 Mich 1.
In the instant case the plaintiff directs our attention to numerous cases which set forth the elements of a valid inter vivos gift. We find, however, that discussion of this area is unnecessary in that the statute involved determines the initial validity of the transfer of ownership to vehicle, whether by sale or gift. Taylor v. Burdick (1948), 320 Mich 25.
It is also necessary in reaching a decision that we consider CL 1948, § 55.113 (Stat Ann 1961 Rev § 5.1047), which gives presumptive validity to the truth of facts within an instrument to which a notary public affixes his seal. The presumption, however, is rebuttable, calling for clear, positive and credible evidence in opposition. Garrigan v. LaSalle Coca-Cola Bottling Co. (1961), 362 Mich 262.
At trial Mr. Nolan, the notary public whose signature appeared on the application for the new certificate of title, testified in unequivocal language that the transferor, Helen V. Ross, did not sign the application in his presence. It is also interesting to note, although it is not essential to our decision, that the defendant's unequivocal testimony reveals she had no knowledge of the transaction. *107 It is evident, therefore, that the attempted transfer did not meet the requirement of the statute that the certificate of application be "sworn to before a notary public." We conclude, therefore, that the testimony was sufficiently clear and positive to rebut the presumption afforded by the statute.
In reaching our decision we adopt the language of Dodson v. Imperial Motors, Inc. (CA 6, 1961), 295 F2d 609, which case we find controlling. There, as here, the cause grew out of the asserted invalidity of a notary public's certification. In discussing the aforementioned provision of the Michigan vehicle code, the court states at page 613:
"The plaintiffs, relying on such statute, must establish strict compliance with the transfer statute to gain the advantage of the strict liability sought to be imposed on Imperial. The language of the transfer statute is mandatory that an owner transferor `shall indorse on the back of the certificate of title an assignment, * * * sworn to before a notary public.' We are not at liberty to sever from this statute an integral part thereof and hold it a nonessential."
Based upon the prior considerations and the issues raised we conclude that at the time of the collision the defendant was not the owner of the vehicle, and concur in the decision of the trial court.
Affirmed. Costs awarded to appellee.
HOLBROOK, P.J., and BURNS, J., concurred.
NOTES
[1] CLS 1961, § 257.37 (Stat Ann 1960 Rev § 9.1837).
[2] See, currently, CLS 1961, § 257.233(d) as amended by PA 1964, No 248 (Stat Ann 1965 Cum Supp § 9.1933[d]).
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37 B.R. 481 (1984)
In re NATIONAL STORE FIXTURE COMPANY, Debtor.
Bankruptcy No. 83-01994-2.
United States Bankruptcy Court, W.D. Missouri.
February 24, 1984.
*482 Charles E. Rubin, Kansas City, Mo., trustee.
Jack N. Bohm, Kansas City, Mo., for debtor.
Richard K. Willard, Acting Asst. Atty. Gen., Robert G. Ulrich, U.S. Atty., E. Eugene Harrison, J. Christopher Kohn, Asst. U.S. Attys., Kansas City, Mo., for the United States.
MEMORANDUM OPINION AND ORDER
JOEL PELOFSKY, Bankruptcy Judge.
In this case debtor has moved to disqualify and remove the trustee by reason of the language of Rule 5002, Rules of Bankruptcy Procedure. That Rule provides that:
"No person may be appointed as a trustee or examiner or be employed as an attorney, accountant, appraiser, auctioneer, or other professional person pursuant to § 327 or § 1103 of the Code if (1) the person is a relative of any judge of the court making the appointment or approving the employment or (2) the person is or has been so connected with any judge of the court making the appointment or approving the employment as to render such appointment or employment improper. Whenever under this rule a person is ineligible for appointment or employment, the person's firm, partnership, corporation, or any other form of business association or relationship, and all members, associates and professional employees thereof are also ineligible for appointment or employment."
The Court finds that there are no disputes of material fact, that no hearing is necessary and that the issue may be resolved on the pleadings and briefs of the parties and of the United States which has intervened.
The Court takes judicial notice of the following facts:
(1) The trustee is a member of the panel of trustees of this court, having been so *483 selected by the Director of the Administrative Office of the United States Courts pursuant to powers granted the Director by § 604(f) of Title 28, U.S.C.
(2) The trustee was selected by an employee of the office of the Clerk of this bankruptcy court by determining which member of the panel was eligible for appointment in this asset case. The trustees are appointed in asset cases on a rotating basis and a trustee is eligible generally when his last appointment in such a case is prior to the time any other trustee was appointed.
(3) No judge of the bankruptcy court is consulted when such an appointment is made.
(4) The order of appointment is executed by the Clerk of the court or her designee using a signature stamp of the judge who draws the case, again by rotation selection.
(5) The trustee in this case is a member of a firm in which another member is a son of a sitting bankruptcy judge of this district.
I
Prior to the effective date of Rule 5002 which was August 1, 1983, the rule on prohibited appointments was Rule 505 which provided that:
"(a) Appointment or Employment of Relative of or Person Connected with Judge or Referee. No person may be appointed as trustee, receiver, marshal, or appraiser or employed as accountant or auctioneer in a bankruptcy case (1) if he is a relative of any judge or referee of the court making the appointment or authorizing the employment, or (2) if he is so connected with any judge or referee of the court making the appointment or authorizing the employment as to render such appointment or employment improper.
(b) Disqualification of Judge or Referee from Acting in Case: Relationship to Party or Attorney; Interest in Case; Appearance of Influence. Any judge or referee shall disqualify himself in any bankruptcy case (1) in which he is a relative of any party or his attorney, has a substantial, direct or indirect interest, has been of counsel, or is or has been a material witness, or (2) if his acting therein would justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position, or influence of any party or other person.
(c) Disqualification of Judge or Referee from Authorizing Employment of Attorney. Any judge or referee shall disqualify himself from authorizing the employment and from determining the compensation of (1) a relative as an attorney in a bankruptcy case, or (2) an attorney in a bankruptcy case if the judge or referee is so connected with the attorney as to render it improper for him to authorize such employment".
Rule 505(a) prohibited appointment as trustee, receiver, marshal or appraiser as well as employment as accountant or auctioneer of a person who was "a relative of any judge or referee of the court making the appointment". The fair reading of the provision was to the effect that no judge or referee could appoint to any of the named positions a relative of any judge if all the appointing officers sat on the same court as, for example, judges of a multi-judge district.
But a relative could serve as attorney in bankruptcy matters, even as attorney for the trustee. See the advisory committee note to Rule 505. The language of Rule 505(a) did not prohibit the appointment or employment as attorney of a relative of any judge of the court, but only barred the related judge from authorizing employment or approving compensation. Rule 505(c).
The revision of the Rule broadened its reach. The prohibitions contained in Rule 505(a) were carried over but redefined and enlarged. Under Rule 5002 no relative of any judge of the court could be appointed as trustee or examiner or employed as attorney, accountant, appraiser, auctioneer or other professional person. In addition the last sentence of the Rule extends the ineligibility *484 to the relative's "firm, partnership . . . or any other form of business association . . . ".
Attorneys were added to the group of categories from which relatives were barred. The class prohibited from serving is enlarged beyond blood lines to include persons involved in certain types of business relationships with the relative. In the instance before the Court the trustee sought to be removed is a law partner of a relative of a judge of the court. The plain language of Rule 5002 prohibits such an appointment.
II
Various sections of the Bankruptcy Code apply to trustees. Section 321 provides that "[a] person may serve as trustee in a case under this title only if such person is(1) an individual that is competent to perform the duties of trustee and, in a case under chapter 7 . . . resides or has an office in the judicial district within which the case is pending . . .". The trustee here has served for many years in that capacity. He has an office in this judicial district.
There is no suggestion that the word "competent" is used as a term of art as, for example, it is used in mental health statutes. Rule 209, Rules of Bankruptcy Procedure, In re Leader Mercantile Co., 36 F.2d 745 (5th Cir.1929); Matter of Chapter 13 Cases, 19 B.R. 713 (Bkrtcy.W.D.Wash.1982); In re Parr, 3 B.R. 692 (Bkrtcy.E.D.N.Y. 1980). A person may be competent to perform the duties of the trustee even though he might not be eligible. The trustee here is competent.
Section 322 provides for qualification of a trustee once selected. The prerequisite is that the person selected post a bond in the amount required by the court with sufficient surety. Section 701 provides for the appointment of an interim trustee who is a disinterested person. Section 702 sets forth procedures for the election of a trustee by creditors. Section 1104 permits appointment of a trustee in a reorganization case. Section 1302(d) authorizes appointment of a standing trustee in the district to manage Chapter 13 cases. None of these statutory provisions prohibits appointment of a person who has a business relationship with a person who is himself ineligible to be appointed by reason of consanguinity.
The thrust of Rule 5002 as it applies to the facts here is the suggestion that being related to a judge taints both the court on which the judge sits and the firm in which the relative works so that judicial colleagues and law partners cannot be relied upon to obey the canons of ethics and laws which prescribe their conduct. See the advisory committee note to Rule 5002.
Prior to the promulgation of this Rule the conduct of a judge in situations where there was potential conflict was left to the sound discretion of the individual judge with certain narrow exceptions. Section 455, Title 28, U.S.C., Weiss v. Hunna, 312 F.2d 711 (2d Cir.1963); McNellis v. Dubnoff, 285 F.Supp. 563 (D.C.N.D.N.Y.1968). In Matter of Horton, 621 F.2d 968 (9th Cir.1980), the court ruled that the presence at debtor's trial of a judge who had disqualified himself from hearing the case was not coercive upon the judge presiding. Apparently the revisers of the Rule thought consanguinity more invidious than actual presence. See also Centre, etc., v. Mabey, 19 B.R. 635 (D.C. Utah 1982).
Section 458 of Title 28, U.S.C., prohibits appointments or employment of a relative of any judge of a court to any office or duty in such court. This statute existed side by side with Rule 505 which, as noted above, clearly permits a relative of a judge to serve as attorney (an officer of the court) in cases pending in that court. There are no decisions interpreting the statute as it applies to bankruptcy practice, but a fair conclusion seems to be that Section 458 does not prohibit relatives of judges from practicing in certain roles in the bankruptcy court. In addition, prior to the adoption of Rule 5002, there was a presumption that practitioners would not be tainted by association with a relative of a judge.
III
There is nothing in the advisory committee notes to suggest that the bankruptcy *485 system has less integrity after August 1, 1983, than it contained before that date. The extension then of the prohibition against appointments must be based upon conjecture that such extension is necessary to avoid abuse. The practice before this Court provides no evidence to support such a conclusion.
The newly adopted Rules of Bankruptcy Procedure contain safeguards against abuse. Rule 2013(a) requires a proportioning of appointments of trustees to avoid disparity of compensation. Rule 2013(b) requires the clerk to maintain a public record of fees paid trustees. In a non-asset case the fee paid the trustee is set. Section 330(b) of the Code. In an asset case the trustee's fee is calculated by formula, Section 326(a) of the Code, and must be approved by the court after notice to creditors and an opportunity for hearing.
At the same time appointments to the panel of trustees are limited to enable the panel trustees to earn certain minimum levels of income. The Director of the Administrative Office recognizes and abets this policy decision. Thus, limited access to certain aspects of the bankruptcy practice, deplored by the Commission and the Congress, are perpetuated by statute.
In its intervenor's brief the United States makes essentially two arguments. One is that there is no constitutionally protected right to be a trustee. The second is that the rule is a rational safeguard against prior vices. The United States concedes, however, that among rights constitutionally protected are freedom of association, the right to engage in a particular profession or activity and where "participation in an occupation or activity has been foreclosed entirely or where future opportunities have been frustrated through injury to profession or reputation". Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The Rule does infringe upon the right of association. It does infringe on the right to engage in a particular activity. Future opportunities are frustrated through injury to profession and reputation. The impact of the Rule is that one may be a partner in a law firm where a relative of a bankruptcy judge is also a member, but one cannot then be a trustee. The suggestion made by the United States that the party can withdraw from such association is facile. Such associations, as law partnerships, are not arranged or destroyed based upon eligibility to be a bankruptcy trustee.
In such an association, the affected party could not be a trustee. Thus his right to engage in a particular activity is infringed. But it would appear that such an affected person could be elected trustee as there is no requirement in the statute, Section 702 of the Code, that the Court make an order of appointment. Official Form 23 contemplates an order approving the election but there is no such statutory requirement. Clearly, though, the Court could not approve the final settlement because that would allow the trustee compensation. Nor could such an elected trustee make application to appoint himself as attorney even though such a procedure is clearly contemplated by the Code, Section 327(d), because the appointing order is clearly prohibited by the Rule.
Future activities are frustrated. The trustee must be a resident of the state served by the court or an adjacent state. Section 604(f), Title 28, U.S.C. As a practical matter the trustee is only appointed for a judicial district which may encompass less than a state. For equally practical purposes a panel trustee rarely serves outside the division of the Court in which he resides or has his office. At remuneration of $20 per case, travel is not economical. Thus, a person disqualified from serving in the judicial district in which he has an office has little or no opportunity to be appointed in another jurisdiction.
In its brief the United States contends that "a trustee in bankruptcy is appointed merely on a case-by-case basis. Thus, the trustee in this case has no judicially protectable expectation whatsoever that he will be appointed to serve in any given case in the future". This is not an accurate recitation of the facts. After the trustee is appointed *486 to the panel he is regularly appointed to cases on a rotation basis. The number of appointments is limited to maximize income. A panel trustee may only be removed for cause. Section 604(f), Title 28, U.S.C. Thus, once appointed, and absent cause, the trustee has a very real expectation of further appointments. The Court can only remove a trustee in a particular case, Section 324 of the Code, but may not remove a trustee from the panel. The Court may only recommend such removal to the Director of the Administrative Office.
A provision that a person may be removed from a position only "for cause" carries with it connotations of a removal procedure cloaked with protections of due process. There must be "notice and opportunity for hearing appropriate to the nature of the case". Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950).
"What the Constitution does require is an opportunity . . . granted at a meaningful time and in a meaningful manner . . . for a hearing . . . That the hearing required by due process is subject to waiver, and is not fixed inform does not affect its root requirement that an individual be given an opportunity for hearing before he is deprived of any significant property in-interest . . .". Boddie v. Connecticut, 401 U.S. 371, 378-379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971).
See also Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
In the particular case here the Rule creates an irrebuttable presumption that the trustee is not qualified to perform his duties in this jurisdiction. Compare Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63, (1973). Such presumptions are not favored. No matter what the character of the trustee, he cannot overcome the presumption. In Vlandis, supra, the Court struck down a state statute branding certain students as non-residents throughout their academic career without regard to the true state of their residency. There was no procedure for challenging the classification. The United States, in its brief here, concedes that the statute in Vlandis would not pass substantive due process review.
The United States attempts to distinguish the line of cases typified by Vlandis, supra, including Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973), by contending that they rest upon equal protection grounds. But it is also clear that the initial objection must be to the absence of any procedure for testing the classification. A statute which prohibits proof to the contrary is a denial of due process. U.S. v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). What follows, after a due process hearing, is the conclusion that the classification is invidious and a denial of equal protection.
Equal protection constraints do not apply against the United States. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). But "a patently arbitrary classification, utterly lacking in rational justification" may well be a denial of due process. Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960).
Promulgation of the Rule, in the context of this case, constitutes a denial of due process. The trustee here has certain vested rights by virtue of his membership on the panel of trustees. He may not be deprived of those rights without notice and hearing. Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (5th Cir.1975). Remedies for misconduct cannot be imposed by ignoring fundamental constitutional rights. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
IV
The restriction in Rule 5002 against associates is both arbitrary and irrational. *487 It purports to eliminate the appearance of impropriety by banning not only the appointment of relatives of judges but also persons associating with such relatives. As the Court has pointed out above, this bar would not prevent the person tainted by association from being elected a trustee. The Rule goes far beyond statutory qualifications and is not consistent with those qualifications. Sections 321 and 322 of the Code.
In describing and circumscribing the rational basis test, the Supreme Court has established balancing considerations. "What legitimate [governmental] interest does the classification promote? What fundamental personal rights might the classification endanger?" Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972). In Stanley v. Illinois, supra, the Supreme Court rejected the notion that the convenience of a presumption was constitutionally sound in view of the fact that more precise tests were available. The "Constitution recognizes higher values than speed and efficiency". 405 U.S. at 656, 92 S.Ct. at 1215.
More precise tests are available here. Attorneys may move to disqualify a judge or remove a trustee if fairness becomes an issue. The Director of the Administrative Office may remove a trustee for cause and appears to be the sole determiner of whether an applicant is appointed to the panel in the first instance. The prohibition contained in the Rule is not effective as is pointed out herein. It invades and diminishes fundamental rights and is not constitutionally defensible. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).
Despite its supposedly broad prophylactic purpose the Rule has already been held not to apply to relatives of judges of the District Court. In re Hilltop Sand & Gravel, 33 B.R. 839, 11 B.C.D. 3 (Bkrtcy.N.D.Ohio 1983), reversed on appeal, In re Hilltop Sand & Gravel, 35 B.R. 412, 11 B.C.D. 377 (D.C.N.D.Ohio 1983).
In reversing, the District Court held that the District Court was not the court identified in Rule 5002. Leaving aside interesting questions arising out of the referral jurisdiction by which bankruptcy courts receive cases, consider only the appearing of impropriety. At the present time the District Court recommends the appointment of bankruptcy judges for the respective districts. The District Court exercises appellate jurisdiction generally, including the review of fee allowances. The District Court may sign orders in related proceedings arising out of case administration. The District Court can withdraw, on its own motion, a case from the Bankruptcy Judge. The appearance of impropriety survives the separation of courts.
There are safeguards in both the Code and the Rules, beyond the restrictions contained in Rule 5002, that insure a fair distribution of cases among trustees and adequate disclosure of fees earned. The judges of the bankruptcy court no longer select trustees and do not appoint them on a case by case basis. In a rare instance, as when a case is converted from reorganization to liquidation, the Court could appoint. But more often the selection is made from the panel with the next eligible person being chosen. In approximately four years on the bench, this writer has knowingly made four or five appointments. In the same period of time this Court has processed about 24,000 estates in which trustees were appointed. Annual Reports of the Administrative Office. Clearly the appearance of impropriety, given such numbers, is less than a needle in a haystack.
Admittedly the bankruptcy trustees and the bankruptcy bar, in any particular judicial district, comprise a small group. This is neither the fault of the courts nor the bar. Likewise, other specialized bars are small in numbers. But it is only in the bankruptcy area, where the court must make many ministerial appointments, that the prohibition of association prevails. Relatives of judges of other courts may practice in those courts.
*488 The extension of the Rule 5002 prohibition to persons associating with a judge's relative is tantamount to disbarment of those associates in the bankruptcy court. There is no such restriction in the United States District Court. In addition it is disbarment without due process, a procedure much condemned. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); Theard v. U.S., 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957).
The committee note suggests the extension is necessary if the policy is to be "meaningfully implemented". The Court is aware of the fact that the committee was divided on this issue. The Court is also aware that the creation of trustee panels was intended to eliminate abuse. But the reference to "bankruptcy rings" refers to the attorneys who practice before the bankruptcy courts. Other than condemning the small numbers, the evidence of misconduct is only semantic. The complaints come from non-bankruptcy lawyers. Commission Report, H.R.Doc. No. 93-137, 93rd Cong., 1st Sess., Par. I at 93 and 109 (1973) reprinted in App. 2 Collier on Bankruptcy (15th Ed.) and the House Report Accompanying H.R.8200, H.R.Rep. No. 95-595, 95th Cong., 1st Sess. (1977), U.S.Code Cong. & Admin. News 1978, p. 5787, at 88 ff, reprinted in App. 2 Collier on Bankruptcy (15th Ed.). Cannot the same complaints be made against members of the anti-trust or tax bars by attorneys not specializing in those areas? There is no evidence in either report that suggests that the sins lie with associates of relatives of bankruptcy judges. There is no rational relationship between the prohibition and the vice.
The Rule reaches incongruous results. A debtor may select his own attorney but if that attorney is tainted by an association, he may not represent that debtor in a Chapter 11 reorganization because the Court must approve the selection of the attorney. Section 327 of the Code. Similarly a creditor's committee could not select such a person as its attorney. Section 1103 of the Code. In a Chapter 7 asset case, the tainted attorney could not collect a fee if it had to be approved by the Court. A creditor, entitled to attorney fees because of its oversecured status, might not be allowed to collect them if represented by an attorney of its own choosing who was tainted by association. Strangely enough Rule 5004 contemplates fee awards for persons who are barred from appointment under Rule 5002. There is no reference in either rule to the inconsistency. While the question of attorney eligibility is not before the Court, this analysis buttresses the determination that extension of the Rule to bar the appointment of persons associating with a judicial relative is irrational.
V
Pursuant to the provisions of Section 2075 of Title 28, U.S.C., the Supreme Court has the power to make rules for "practice and procedure in cases under Title 11. Such rules shall not abridge, enlarge, or modify any substantive right". There is a presumption that the Supreme Court acts constitutionally in promulgating rules but the rule cannot exceed a grant of federal authority. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Section 2075, Title 28, U.S.C. There is no authority to promulgate a rule which operates as here, to deprive a person of a right without due process or which exceeds the narrow mandate set out in Section 2075. In re Itel Corp., 17 B.R. 942 (Bkrtcy.App. 9th Cir. 1982).
The Rule establishes an irrebuttable presumption that persons associated with a relative of a bankruptcy judge create an environment in the bankruptcy system which causes judges and lawyers involved in such an environment to lose their integrity. But that integrity is instantly restored if the tainted person moves to the adjoining judicial district to practice or takes only those bankruptcy cases where a judge makes no appointing or approving orders. How does this remove the air of impropriety, as for example in the Southern and Eastern Districts of New York, sitting in Manhattan and Brooklyn where undoubtedly the same bankruptcy bar practices in *489 both districts? At the same time the Court notes that there is a single judicial district in 27 states and firms tainted by the association are effectively disbarred in those entire states because the appointing court is statewide.
Irrebuttable presumptions are not favored. Vlandis v. Kline, supra. The presumption here, as has already been shown, is arbitrary and violative of due process. It is based upon an assumption that bankruptcy judges favor one another's relatives or those relative's associates who practice before them. Supposing the bankruptcy judges do not like each other? Why is not the same reasoning true at the District Court level where there are numerous opportunities for judges to award fees in situations which, if they occurred in the Rule 5002 context, would involve tainted associations? See, for example, Sections 2412 of Title 28, U.S.C. and 1988 of Title 42, U.S.C.
As the Court has stated before, it is no one's fault that the bankruptcy bar is small. Nor is it anyone's fault that creditors generally are not interested in being active in the administration of cases. Creditor interest is a function of economics. All of the legislation in the world is not going to change either the size of the bankruptcy bar or the amount of creditor interest. In the vast majority of cases creditors recover nothing. They will, therefore, not invest much time, effort or funds in finding out that truth.
Nor does the extension of the Rule eliminate the so-called "bankruptcy rings". Most lawyers do not practice bankruptcy law extensively because they have few clients involved in bankruptcy matters. This rule will not change that fact. The notion that bankruptcy lawyers are in cahoots with the judge and each other is patent nonsense. There is as much integrity in this area of practice as there is in any other. Did the committee drafting the Rule want clients to hire attorneys who know nothing about the subject and knowingly pay for their education? Do judges want only uneducated lawyers in their courts? And once educated, do these lawyers then become part of the "bankruptcy rings" and thus lose their integrity? To state these questions is to point out the impossibility and implausibility of what the Rule extension attempts to achieve.
The Court is aware of only two instances of alleged favoritism in the bankruptcy system. In one (Detroit) there was no family relationship. In the other (Cleveland), the family relationship was with a member of the District Court, a situation supposedly not reached by the Rule. The Commission Report records complaints of the non-bankruptcy bar. Cannot the same complaints be made about the anti-trust bar or the tax bar by non-members? There is simply no evidence that the Rule 5002 prohibition cures any failing in the system when balanced against the harm done to the bar and to the integrity of practitioners.
The attorney associated with a relative is deemed unfit, by the language of the Rule, to practice in a particular court. He is damaged in both profession and reputation. There is no procedure short of dissolving this association by which the tainted party can overcome the presumption. In the particular case at bar, the trustee is removed without a showing of cause. Such a procedure is not authorized by statute. Nor is this an instance where the Court should yield to legislative discretion. These rules were not promulgated as an exercise of legislative discretion. The mere fact that the Rules are transmitted to the Congress before the effective date is of little significance where, as here, the Congress held no hearings and took no action to stamp its imprimatur upon the document.
The Court holds that the extension of Rule 5002 to bar the appointment of those persons associating with a relative of a judge of the court making the appointment is void as a denial of due process. Such an extension deprives persons of their right of association, their right to engage in a particular profession or activity and frustrates future opportunities through injury to profession or reputation. The Rule causes removal of trustees without cause in violation of the restrictions imposed by the statute. There is simply no evidence of the *490 validity of the extension. The comments of the committee are not entitled to deference. Finally, the Rule violates the mandate set out in Section 2075 of Title 28 in that it abridges and modifies substantive rights.
The Motion to Remove is DENIED.
DENNIS J. STEWART, Bankruptcy Judge.
I wish to join Judge Pelofsky in his holding that Rule 5002 of the Rules of Bankruptcy Procedure is unconstitutional and unlawful insofar as it goes beyond the disqualification statute, section 455, Title 28, United States Code, in defining situations where the bankruptcy judge, as a matter of law, regardless of the factual context, must, in effect, recuse himself from appointing officers of the bankruptcy estate.
I
The principal effect of the rule betrays its chief vice. That principal effect is to prohibit the bankruptcy court from making judicial factual determinations which can be essential and crucial in the administration of bankruptcy estates. While the manner of making proof of facts in disqualification proceedings is often carefully controlled, it ordinarily remains for the judge to draw the proper inferences and make findings as to the ultimate material facts, determining in the process whether "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Winston, 613 F.2d 221, 222 (9th Cir.1980). The prohibition against the bankruptcy judge's doing so in respect of "associates" of persons ineligible to serve as officers of the estate is thus another significant detraction from the independence of the bankruptcy judiciary which is already reeling from a myriad of blows lately addressed to that same vital aspect of its system. It was foreseen with the passage of the Bankruptcy Reform Act of 1978 that the sitting bankruptcy judges were likely to be perceived as responsible for its provisions and punished accordingly. Thus, a congressional source has recorded among the history of that legislation that "(f)eeling . . . is running high against bankruptcy judges for their role in the formulation of this legislation . . . (R)etaliation . . . would seriously impair the conduct of the bench during the early phases of the implementation of this new law. (But), toward the end of the transition period, patronage considerations may induce appointments of those who seek appointment to the new bench in preference to the sitting judges." Sen.Rep. No. 95-989, 1978 U.S.Code Cong. and Adm.News, p. 6415. True to this prophecy, bankruptcy judges of long and distinguished standing have been subjected to reviews by screening panels whose findings and recommendations are required neither to be based on verified facts nor rendered after the according of due process. The salaries of bankruptcy judges have been considered anything except free from tampering and are now said to be entirely evanescent, on the verge of complete disappearance. And their power to make factual determinations of issues arising under state law, even when the parties consent to bankruptcy court jurisdiction, has been impugned. See 1616 Reminc Limited Partnership v. Atchison and Keller Ltd. Partnership, 704 F.2d 1313 (4th Cir.1983). The result has been the foreseen and apparently desired one, that of attrition of the best and brightest of the bankruptcy bench, their "judicial flight," as it is now commonly termed, to better paying and more secure positions. Yet, under the law of the land as it has been with some frequency asseverated, whatever the personal rights of bankruptcy judges and without regard to the correctness of the particular contentions which they have been and are advancing, they were only doing their public duty in attempting to further their independence by casting off the yoke of the many dependencies which had developed and augmented over the years. "In the light of (time honored and never discredited) views . . . it is not extravagant to say that there rests upon every federal judge affected nothing less than a duty to withstand any attempt, directly or indirectly in contravention of the Constitution, to diminish his compensation (or other trapping of independence), not for his private advantagewhich, *491 if that were all, he might be willing to foregobut in the interest of preserving unimpaired an essential safeguard adopted as a continuing guaranty of an independent judicial administration for the benefit of the whole people." O'Donoghue v. United States, 289 U.S. 516, 533, 53 S.Ct. 740, 744, 77 L.Ed. 1356 (1933). Now, however, the imposition of Rule 5002 may be the cruelest blow of all, purporting, as it does, to come from within, and requiring the bankruptcy judge, whenever its applicability comes into focus, to make findings which may or may not be justified by the particular circumstances, and always against his own integrity, not only as a factfinder, but in the deepest moral sense as well. The assurance that bankruptcy judges, trustees, and other officers of the estate can faithfully and honestly administer estates is lessened, rather than promoted, by a rule so broad that it must necessarily defeat its own purposes. In fact, such faithful and honest administration is made almost impossible, for every case must now be processed against the dread that sometime, somehow, and even retrospectively, its handling will be challenged on the basis of a remote connection between the trustee and a judge of the bankcourt which was not perceived at the time of the former's appointment. As the superficial and tangential in a trustee's qualifications become material, there is a likelihood that the material will come to be considered as superficial and tangential. With the reduction of the pool of able trustees by the number of those with perceived remote connections with the court, the probability that those with real impediments will have to be pressed into service by accident, need, or otherwise, increases. And, again, the result must be a further reduction in the strength, numerical and otherwise, of the bankruptcy bench.
If this rule were imposed upon an Article III court, there can be little doubt that it would be invalidated as an unconstitutional infringement of judicial independence. It is commonly held that the legislative branch of government, for all its power to dictate substantive and procedural law to the Article III judiciary, cannot dictate how a court should determine genuine issues of material fact. "(O)nce Congress confers jurisdiction to try a case, it cannot withhold power to decide the case according to the applicable law." Payne v. Griffin, 51 F.Supp. 588, 591 (M.D.Ga.1943). Thus, it was held by the Supreme Court of the United States in United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871), that for Congress to enact a statute compelling courts of the United States to draw factual inferences which could be justified neither by common reason and experience nor by the surrounding facts and circumstances was an unwarranted encroachment on the independence of the judiciary, required the case arbitrarily to be decided against a party to it, and "passed the limit which separates the legislative from the judicial power."[1] The rule *492 of the Klein case has continued to be honored down to the present time.[2] Its imperative appears to be so necessary to even minimal independence of any judiciary that it must also be held to apply to the bankruptcy courtdespite its current lack of Article III characterso as to invalidate the portions of Rule 5002 which require the inference, in every case, that members of the same law firm as a relative of or "person connected" with a non-appointing member of the bankruptcy court cannot be anything but corruptly appointed by a member of the court.
In respect of non-Article-III legislative courts, it has sometimes been held that, because they adjudicate only "public rights," a considerable degree of depreciation of their independence can be tolerated. It is said that this is so because there is no absolute right in law and justice for an individual to assert his claim against the government; that the government permits him to do so only as a matter of grace; and that, therefore, the absence of an altogether independent judiciary is something that must be accepted as part of the price of being granted to prosecute the claim *493 against the government.[3] But these facile considerations cannot apply to the bankruptcy courts which, according to the rule of Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 2867, 73 L.Ed.2d 598 (1982), "Congress did not constitute . . . as legislative courts," and whose decisions, moreover, frequently constitute precedents on which the daily commercial life of the American people is based. To manipulate the decisions of a court having so much significance to common usages of common men and women would be to subvert and deflect an important source of lawgiving. And manipulation in almost any form of any significant judicial tribunal is wholly foreign to the legal traditions of the United States.[4] If bankruptcy courts are to continue to be free to make the decisions which lie at the heart and soul of its public mission, the rule now under consideration cannot be allowed to stand to impose its full oppressive weight against the sitting bankruptcy judges.
It is recognized, of course, that the Klein decision and its progeny were based upon the separation of powers doctrine; that they were accordingly designed to safeguard the judiciary against legislative encroachments and that it may be arguable that the strictures of Rule 5002 are not legislative restrictions, but only supervision imposed by the judiciary itself.[5] But it is acknowledged in virtually all the cases which deal with the question that there must necessarily be a limit to the judiciary's own internal discipline.[6] Whatever the configuration *494 of such limits, they are almost certainly transgressed by a rule which would virtually eradicate the court's quintessential characteristic, that of a determiner of factual issues. The rulemakers themselves have elsewhere recognized the inalienability of this power of making factual determinations and drawing reasonable inferences from a court's identity as a judicial body. See Rule 8013 of the Rules of Bankruptcy Procedure; In re Morrissey, 717 F.2d 100, 104, 105 (3d Cir.1983). But, in this respect, they have, while honoring the principle in general, nevertheless violated it in this one highly important particular; and, in that particular, Rule 5002, accordingly, cannot stand side by side with the paramount principle of judicial independence.
II
There is a second and independent reason why the rule, as applied to Mr. Rubin, must fail. As to him, who has been a member of the panel of trustees from its historical inception, its provisions would suddenly terminate his tenure as a member of that panel without any notice, opportunity for a hearing, or any evidence whatever of cause for such termination.[6a] It has been held, however, since Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), that a public official with a reasonable expectancy of continued employment is as entitled to due process in connection with his discharge as an employee with the formal indicia of tenure. The only question which presents itself in this regard as having a semblance of significance is that of whether a member of the panel of trustees is the type of employee intended to be covered by this constitutional ruling. Formerly, in respect of a panel similarly created primarily for public service purposes,[7] the panel of attorneys created under the Criminal Justice Act to supply legal assistance to indigent defendants in criminal cases, our district court held in Mee v. Becker, 456 F.Supp. 224, 227 (W.D.Mo.1978), that the "Act . . . is not intended as a full employment bill for attorneys"; that due process, accordingly, did not apply; and that an attorney, as a result, could lawfully be removed from the panel at any time, with or without cause, and without notice or opportunity of a hearing of any kind. Since that time, however, the rule of Perry v. Sindermann, supra, has been employed with increasing liberality to a broadening spectrum of classifications of public employees, some of whom have, in other contexts, not been regarded as public employees. As for trustees and receivers in bankruptcy, it was formerly held in Cromelin v. United States, 177 F.2d 275, 277 (5th Cir.1949), that neither a judge of the United States nor a trustee in bankruptcy were to be considered federal employees for purposes of the Federal Tort Claims Act. "The trustee, like a receiver, is an officer of court, appointed by the court, directed by the court, and paid by the court *495 from the funds of the court. He is in no sense an agent or employee or officer of the United States. The judge is appointed by the President and confirmed by the Senate, and paid from the United States treasury, but in trying cases he is a member of the independent judiciary and is not under the control of the United States any more than a member of the legislative department in legislating." In extending the rule of Perry v. Sindermann, supra, however, to include a right against dismissal of nonpolicymaking, nonconfidential public employees for political reasons, the Supreme Court, in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), significantly broadened the scope of public employees to which constitutional protection of tenure applies. Subsequently, in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court extended the protection against unconstitutional dismissal to an assistant public defender, who, for other purposes, including that of official immunity, could not be said to be a public official. Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979). Presently, according to some holdings, even lower court judges and magistrates, once thought to be wholly at the mercy of their superiors once their limited tenure expired, are now entitled to due process as having an expectancy of reemployment by reason of any general practice of reappointing inferior judges and magistrates in the absence of any wrongdoing. Lewis v. Blackburn, 555 F.Supp. 713, 718, 721 (W.D.N.C.1983).[8] In light of these decisions, it seems possible that Mee v. Becker, supra, might well be decided differently today than it was in 1978. Even if a trustee in bankruptcy, moreover, is to be considered at this time as an officer of the courtdespite his receiving remuneration from the government in each case and despite his selection and retention by the Administrative Office of the United States Courtsit would seem that he is entitled to the constitutional protections outlined in the decisions mentioned above.[9]
III
Further, if it is public employment which the trustee, in virtually any sense, enjoys, then, even when there is no expectancy of continued employment or reemployment, it is constitutionally prohibited to discharge one from such public employment for the exercise of a constitutional right. Perry v. Sindermann, supra; Roth v. Board of Regents, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Application of Rule 5002 to Mr. Rubin purely and simply results *496 in his discharge from the panel of trustees because of his professional association with Frank P. Barker III, who is the son of the chief judge of our bankruptcy court. It thus unconstitutionally penalizes the right to freedom of association guaranteed him by the First Amendment to our Constitution. Nor can it reasonably be said that there is any countervailing and legitimate public interest which would justify suppression of that right, for it has not and cannot be shown that mere association, professional or otherwise, with a relative of a nonappointing judge necessarily means, without more, that the appointee will be more generously dealt with by the appointing judge than the law allows. No logic or experience, as Judge Pelofsky points out in his opinion, could justify such a finding, without additional facts relevant to particular cases.[10]
IV
Finally, the full scope of the situations in which a judge may not appoint a trustee or other officer of an estate in a case over which he is to preside is adequately and fully defined by section 455, Title 28, United States Code.[11] In purporting to supplement that statute and extend it, the rulemakers have gone beyond their authority by adventuring into the realm of nonadjectival and substantive law and, to the extent they have done so, the rule is invalid.[12]
Because of these multifarious defects in Rule 5002, I concur in Judge Pelofsky's conclusion that it is constitutionally invalid and unlawful as applied to Charles Elliott Rubin, Esquire. And, having held that the rule is invalid insofar as it prevents an associate of a relative of a nonappointing judge, regardless of the particular factual circumstances, from being appointed as an officer of the estate by another member of the court, it follows that the rule cannot stand as it applies to associates of other persons who, by reason of their connections with any judge, cannot be appointed by the court on which that judge sits.[13]
NOTES
[1] The Klein case involved confiscation proceedings against property of former rebels in which the decisive issue was that of loyalty to the United States. "(I)t was the purpose of Congress that the proceeds of the property for which the special provision of the act was made, should go into the Treasury without change of ownership. Certainly such was the intention in respect to the property of loyal men. That the same intention prevailed in regard to the property of owners who, though then hostile, might subsequently become loyal, appears probable from the circumstances that no provision is anywhere made for the confiscation of it." 80 U.S. at 138. The President of the United States issued pardons to some former rebels which had the effect of determining them to be loyal. The Congress, however, enacted a statute providing that any pardon accepted without protest could not be accepted as evidence of loyalty but, rather, must be accepted as conclusive evidence of disloyalty, both in the Court of Claims and on appeal. The Court of Claims nevertheless found for the claimant and, on appeal, the Supreme Court analyzed the matter as follows:
"The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the court of claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing that the legislature may prescribe rules of decision to the judicial department of the government in cases pending before it?. . . . In the case before us no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary. . . . Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the court of claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with the settled law, must be adverse to the government and favorable to the suitor? The question seems to us to answer itself."
80 U.S. at 146, 147. Seen from the standpoint of the litigant, this applied doctrine of the separation of pwoers is seen as the invocation of the due process standard under which the courts inquire as to whether the procedures to be employed are adequate to permit determination of the issue before a court or other adjudicative body. See, e.g., Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971) ("(A) hearing which excludes consideration of an element essential to the decision . . . does not meet this standard (of due process)."); Stanley v. Illinois, 405 U.S. 645, 657, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972) ("Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure (by invoking a presumption that an unmarried father is an unfit parent) forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand."). But, in this matter, the rule of the Klein case has more certain and determinative applicability. It is conceivable, for instance, that a procedure employing an irrebuttable presumption could satisfy the due process standards and still violate the Klein rule simply because, as in this case, the legislative branch first conferred power to make the decision on the courts and then, in exercising its rulemaking power, dictated precisely how that decision should be made. Further, under the Fifth Amendment to the United States Constitution, the right to due process does not proceed ex vacuo, but rather, as the cases cited in the following section of the text make clear, must proceed from a liberty or property interest. Thus, in order to invoke the rule of Bell v. Burson, supra, and like cases, the party must demonstrate the existence of a property or liberty interest. Accordingly, while one may be entitled to due process as a matter of being terminated from a panel of trustees, he may not necessarily be entitled to such process as a prerequisite to not being included on such a panel or not being appointed as the officer of an estate. But the rule of Klein, under the separation of powers doctrine, can be invoked in either instance.
[2] United States v. Brainer, 691 F.2d 691, 695 (4th Cir.1982) ("We assume that the application of existing law to the facts of a case properly before the courts is a judicial function which the legislature may not constitutionally usurp."); California Medical Association v. Federal Election Commission, 641 F.2d 619, 638 (9th Cir.1980) ("There are . . . some limits on congressional authority over the judiciary; for example, Congress may not undermine the courts' capacity to make independent determinations of questions of law and fact in particular cases. . . . See also United States v. Klein, 80 U.S. (Wall.) 128, 147, 20 L.Ed. 519 (1872) (statute compelling court to ignore certain evidence which court believed to be relevant "passed the limit which separates the legislative from the judicial power")."; Memorial Hosp. v. Heckler, 706 F.2d 1130, 1137 (11th Cir.1983).
[3] "We find nothing which militates against the(se) . . . views in the requirement that the Court of claims . . . in the provisions of the Tucker Act . . . requiring the court in cases brought against the government also to consider and decide set-offs and other claims made by the government against the petitioner and award judgment accordingly. . . . the latter is simply a provision which the claimant must accept as a condition upon which he may avail himself of the privilege of suing the government in the special court organized for that purpose." Williams v. United States, 289 U.S. 553, 581, 53 S.Ct. 751, 760, 77 L.Ed. 1372 (1933). The Court so held, even though it recognized the undesirability of the lack of independence: "The sole function of the court being to decide between the government and private suitors, a condition, on the part of judges, of entire dependence upon the legislative pleasure for the tenure of their offices and for a continuance of adequate compensation during their service in office, to say the least, is not desirable." 289 U.S. at 562, 53 S.Ct. at 753.
[4] "To date efforts to tamper with the federal judiciary have not been successful . . . The States, of course, have mostly gone the other way. But as Prof. Kurland observed: `(T)he various devices that the States have recently adopted for policing their judiciaries are little more than polite blackmail, suggestions that the bar is unhappy with the judge's behavior and he'd better shape up or else. I shudder to think how (easily) the federal courts might have been deprived of the services of Judge Learned Hand . . . For politeness to counsel and a willingness to tolerate fools gladly were not among his virtues, and it is only such virtues and that of regular attendance at the court house that the policing systems seem capable of evoking from timid judges.' The way to achieve what is done today is by constitutional amendment . . . Manipulated judiciaries are common across the world, especially in communist and fascist nations. The faith in freedom which we profess . . . is opposed to those ideologies . . ." Palmore v. United States, 411 U.S. 389, 410, 420, 421, 93 S.Ct. 1670, 1682, 1687, 1688, 36 L.Ed.2d 342 (1973) (dissent of Douglas, J.).
[5] "Although Congress has generally delegated to the judiciary the power to make rules governing judicial practice and procedure, the final authority for rulemaking rests ultimately with Congress." California Medical Ass'n v. Federal Elec. Com'n, 641 F.2d 619, 638 (9th Cir.1980).
[6] "Whether the action taken by the Council with respect to the division of business in Judge Chandler's district falls to one side or the other of the line defining the maximum permissible intervention consistent with the constitutional requirement of judicial independence is the ultimate question on which review is sought in the petition now before us. . . . These questions have long been discussed and debated; they are not easy questions and the risks suggested by the dissents are not to be lightly cast aside. But for the reasons that follow, we do not find it necessary to answer them because the threshold question in this case is whether we have jurisdiction to entertain the petition for extraordinary relief." Chandler v. Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 84, 85, 86, 90 S.Ct. 1648, 1653, 1654, 26 L.Ed.2d 100 (1970). "One of the great advances made in the structure of government by our Constitution was its provision for an independent judiciaryfor judges who could do their duty as they saw it without having to account to superior court judges or to any one else except the Senate sitting as a court of impeachment." Chandler v. Judicial Council of Tenth Circuit of U.S., 382 U.S. 1003, 1004, 1005, 86 S.Ct. 610, 610, 611, 15 L.Ed.2d 494 (1966) (dissenting opinion of Black, J.).
[6a] Because of Mr. Rubin's having been on the panel of trustees, he should have the liberty and property interests necessary to bring the due process issue into focus. Others may not. In such cases, however, the rule of the Klein case has the broader applicability pointed up in note 1, supra. If due process is applicable, as Judge Pelofsky points out in his opinion, it is likely that the standards of Bell v. Burson, supra note 1, and Stanley v. Ilinois, supra note 1, require the court to condemn the presumption that association with a disqualified person must give rise to an equal cause for disqualification of the associate. But the preliminary questions are the status of Mr. Rubin as a public employee with a property or liberty interest, or both. Because of the dominant applicability of the Klein rule to this matter, as pointed out in note 1, supra, and its dictates as to the scope of the factfinding process, this court need not go further today and define all the elements of due process in every type of instance in which a member of the panel of trustees may be terminated from that panel.
[7] The element of public service, rather than private compensation, is still regarded as the principal hallmark of a trustee's duty, or that of the other officers of a bankruptcy estate. In the process of administration, they are to remember that "(c)learly the purpose of the Bankruptcy Act was to benefit creditors and debtors, not trustees." In re Kokoszka, 479 F.2d 990, 995, 996 (2d Cir.1973).
[8] It is elsewhere suggested in dicta that "if judicial office-holders have . . . `legitimate claim of entitlement' to preferential consideration of their petitions for reappointment by virtue of their incumbency," they may have a "cognizable property interest in their positions after the expiration of their fixed terms." Richardson v. Koshiba, 693 F.2d 911, 916 (9th Cir.1982).
[9] Although the concept was slow and uncertain in developing, and still may be open to some doubt, the status of a trustee as a public employee or official within this line of cases seems to have been adumbrated in 1980 with the decision in Branti v. Finkel, 445 U.S. 507, 517, n. 12, 100 S.Ct. 1287, 1294, n. 12, 63 L.Ed.2d 574 (1980), which noted that "(t)he compensation of government employees, like the distribution of other public benefits, must be justified by a governmental purpose." Accordingly, it was held that that compensation should not be cut off in violation of the federal constitution. As a member of the panel of trustees, Mr. Rubin receives some compensation from the federal government. In this circuit, the precise contours of a "public employee" within the meaning of the Perry, Roth, and Elrod cases, were probably not filled in with any recognizable completeness until the decisions of our court of appeals in Sweeney v. Bond, 669 F.2d 542 (8th Cir.1982), and Fox and Company v. Schoemehl, 671 F.2d 303 (8th Cir.1982), when it was noted that payment by the government may not be the only determining factor; that some independent contractors paid in part by the government are not public employees; and that, additionally, there should be some governmental supervision of the daily operations or duties of a public employee. The members of the panel of trustees, in this district, are supervised by the clerk of the bankruptcy court. Thus, although, as Judge Pelofsky points out in his opinion, the statutory scheme of the Bankruptcy Reform Act of 1978 provides that a trustee may be removed from the panel only for cause, it was not until 1982 that it became clear that they may have been entitled to the full range of constitutional due process contemplated by the Perry and Roth decisions.
[10] "(A)ny classification which serves to penalize the exercise of (a constitutional right), unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969) (Emphasis in original.)
[11] Although there are other statutes which contain express prohibitions under special circumstances, section 455, in its broader scope, probably encompasses those and adds others under its supplementary "reasonable man" approach.
[12] "As a matter of elemental law, the Federal Rules of Civil Procedure (or other procedural rules) do not create substantive rights (nor subtract therefrom) . . . Substantive federal rights are grounded in the Constitution of the United States and laws enacted by Congress." Weiner v. Bank of King of Prussia, 358 F.Supp. 684, 694 (E.D.Pa.1973).
[13] This invalidation is possible, even without a person before the court who can show the violation of a property or liberty interest, because of the application of the rule of the Klein case, as outlined in note 1, supra.
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Subsets and Splits