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Curto v Erie County (2017 NY Slip Op 07062)
Curto v Erie County
2017 NY Slip Op 07062
Decided on October 6, 2017
Appellate Division, Fourth 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 October 6, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.
1093 CA 17-00402
[*1]PATRICIA J. CURTO, PLAINTIFF-APPELLANT,
vERIE COUNTY, MARK C. POLONCARZ, ERIE COUNTY EXECUTIVE, AND MICHAEL A. SIRAGUSA, ERIE COUNTY ATTORNEY, DEFENDANTS-RESPONDENTS. (APPEAL NO. 1.)
PATRICIA J. CURTO, PLAINTIFF-APPELLANT PRO SE.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (THOMAS J. NAVARRO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order (denominated decision) of the Erie County Court (David W. Foley, A.J.), dated March 28, 2016. The order affirmed an amended judgment of Buffalo City Court.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this small claims action in Buffalo City Court seeking damages in the amount of $300. In an amended judgment, City Court awarded damages in that amount, together with disbursements of $15. On appeal from the order affirming the amended judgment, plaintiff contends that County Court erred in failing to award her additional disbursements. We reject that contention.
"Appellate review of small claims is limited to determining whether substantial justice has not been done between the parties according to the rules and principles of substantive law' " (Rowe v Silver & Gold Expressions, 107 AD3d 1090, 1091, quoting UCCA 1807). "Thus, judgment rendered in a small claims action will be overturned only if it is so shocking as to not be substantial justice' " (Coppola v Kandey Co., 236 AD2d 871, 872). The determination to award $15 in disbursements meets the standard of substantial justice. Moreover, the only item of expense sought by plaintiff that qualified as an allowable disbursement under UCCA 1908 was the filing fee (see UCCA 1908 [a]), which was $15 (see UCCA 1803 [a]) and not $90, as plaintiff contends. We have examined plaintiff's remaining
contentions and conclude that they are without merit.
Entered: October 6, 2017
Mark W. Bennett
Clerk of the Court
|
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1478
___________
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Steven Darnell Roberson, also known *
as Steven Darrell Roberson, also * Appeal from the United States
known as Michael Allen Knipp, also * District Court for the
known as Steve E. Robertson, * Western District of Arkansas.
* [UNPUBLISHED]
Defendant-Appellant *
*
------------------------- *
*
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Steven Darrell Roberson, *
*
Defendant-Appellant. *
___________
Submitted: September 3, 1998
Filed: September 9, 1998
___________
Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
In this direct criminal appeal, Steven Roberson challenges the judgment entered
by the district court1 following Roberson&s plea of guilty to drug offenses. For reversal,
he argues that the district court erred in denying his motion to suppress evidence.
Because there is no indication in the record before us that Roberson entered into a
conditional guilty plea, preserving the right to appeal the denial of his suppression
motion, we conclude that Roberson has waived his right to appeal the issue. See Fed.
R. Crim. P. 11(a)(2); United States v. Vaughan, 13 F.3d 1186, 1187-88 (8th Cir.), cert.
denied, 511 U.S. 1094 (1994); United States v. Stewart, 972 F.2d 216, 217-18 (8th Cir.
1992). Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
-2-
|
343 F.2d 537
UNITED STATES of America ex rel. Harry BALDRIDGE, Petitioner-Appellant,v.Frank J. PATE, Warden, Respondent-Appellee.
No. 14766.
United States Court of Appeals Seventh Circuit.
April 7, 1965.
Morrie Much, Chicago, Ill., Harry Baldridge, pro se, for petitioner-appellant.
William G. Clark, Atty. Gen., John J. O'Toole, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee, Richard A. Michael, Asst. Atty. Gen., of counsel.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
1
Harry Baldridge, petitioner, has appealed from an order of the district court entered June 25, 1964, "denying his motion to reconsider findings on writ of habeas corpus".1
2
According to a memorandum order of the district court entered February 26, 1964, now before us, petitioner contended in that court that he was denied assistance of counsel when he pleaded guilty to charges of burglary and larceny in an Illinois court on April 22, 1941 and was sentenced to a term of one year to life in the penitentiary.
3
Neither at the time the orders of February 26 or June 25, 1964 were entered nor when, on October 16, 1963 his petition for habeas corpus was originally denied, was a hearing conducted by the district court affording petitioner an opportunity to introduce his own testimony or other evidence.
4
In this proceeding, petitioner has charged that he lacked assistance of counsel when he was arraigned on March 28, 1941, and that he had no assistance of counsel, on April 22, 1941, when he entered a plea of guilty and was sentenced for burglary and larceny of property valued at $26.2 Being faced with trial without an attorney, according to petitioner, he had nothing to do but throw himself on the mercy of the court.
5
Attorney John B. Coppinger, Jr., was appointed at the time of the arraignment to represent petitioner and the clerk was told to write the attorney and inform him of the appointment and that the trial date had been set for April 24, 1941.
6
Thus, altho petitioner alleges that court-appointed counsel was not present when the plea and sentence were entered on April 22, 1941, it appears from a purported copy of an affidavit by attorney Coppinger, executed on November 12, 1947, that he interviewed petitioner on the morning of April 22, 1941 in the county jail and advised him to plead guilty; and also that he was present in court on April 24, 1941, and petitioner stated that he would plead guilty, whereupon the judge advised petitioner of his rights and he pleaded guilty and was sentenced in the presence of Coppinger; that the latter's memory regarding the facts had been refreshed by reference to his yearbook and diary and by a conference with Lt. Waller of the Alton Police Department and a reference to that department's records and files.
7
In the district court, by his petition for habeas corpus petitioner charged that attorney Coppinger testified in a 1945 habeas corpus proceeding3 that he did not represent petitioner at his original trial, because the trial date had been set for April 24, 1941 and his reason for not being there was that the court had changed the date to April 22, 1941.
8
Petitioner relies on the affidavit of Mable Pappas, a resident of Aurora, Illinois, who swears that, on April 22, 1941, she attended the trial in question and that no one spoke in behalf of Baldridge and he therefore had no attorney in court to represent him; that he was entirely without counsel.
9
In view of the foregoing, we are not satisfied that the finding of the district court that "the State court records which affirmatively show that counsel was appointed to represent petitioner" can be considered as a determination that petitioner was represented by that counsel or any other attorney when he entered a plea of guilty. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In view of all that we have referred to in this opinion, we are convinced that justice requires that the order from which this appeal was taken must be reversed and this cause remanded to the district court for a hearing at which all relevant evidence be heard, including the testimony of petitioner and such witnesses as he and his counsel may deem necessary.
10
We appointed attorney Morrie Much of the Illinois bar to represent petitioner in this court. We commend and thank Mr. Much for the able service he has rendered on behalf of petitioner.
11
Reversed and remanded with directions.
Notes:
1
The notice of appeal appears on its face to have been made and executed on petitioner's behalf by the clerk of the district court
2
This is corroborated by the record of the Illinois court, according to a copy of its mittimus attached to the original petition for habeas corpus herein
3
Said proceeding seems to have been filed in an Illinois state court
|
137 F.Supp.2d 130 (2001)
UNITED STATES of America, Plaintiff,
v.
Harold MORRELL and Michael F. Morrell, Defendants.
No. 97 CV 5344(NG).
United States District Court, E.D. New York.
March 23, 2001.
*131 Stephen T. Lyons, Tax Division, Department of Justice, Washington, DC, for plaintiff.
Paula Schwartz Frome, James Druker, Kase & Druker, Gardon City, NY, for defendant.
ORDER
GERSHON, District Judge.
The United States moves pursuant to Rule 56, Fed.R.Civ.P., for summary judgment to declare the validity of certain tax liens and to order foreclosure on the liens and sale of property, consisting of a residence conveyed by taxpayers to their son and an annuity traceable to securities that had been transferred by taxpayers to their son, that is subject to the liens. Defendants oppose the motion, arguing that there are factual issues for trial: (1) that the son's interests in the real and personal property that had been transferred to him are superior to the tax liens; (2) that some of the funds used to purchase the annuity came from the son's independently accumulated assets, or alternatively, from property transferred by the taxpayers before the liens attached; and (3) that the government is not entitled to the appreciation in the value of assets after the transfers by the parents to the son.
The Facts
The facts, which in part are set forth in a Joint Agreed Statement of Material Facts ("Joint Statement") entered into by the parties, are undisputed except as indicated. Defendant Harold Morrell invested in tax shelters and claimed deductions on his joint income tax returns filed with his wife, Dolores Morrell, for the years 1977 1980.[1] The IRS disallowed the deductions for these four years and assessed deficiencies. Harold and Dolores Morrell contested the deficiencies in Tax Court. On August 13, 1990, the Tax Court entered an agreed decision finding deficiencies for those years, exclusive of interest, of $182, *132 645, which with interest had grown to over $750,000 as of the date of the decision and approximately $1.4 million when the parties entered into the Joint Statement.
The IRS separately assessed the deficiencies and demanded payment for each of the years 1977 1980 between November 15 and December 10, 1990, thereby creating liens against all property of Harold and Dolores Morrell pursuant to 26 U.S.C. §§ 6321 and 6322. These statutes provide that a lien attaches at the time of assessment to "all property and rights to property" of the taxpayer for the amount of the assessment, including interest that may accrue, and continues until the liability is satisfied or becomes unenforceable by lapse of time. Tax liens were filed against Harold and Dolores Morrell in Suffolk County on September 11, 1991. Harold Morrell does not contest the deficiencies, and agrees that judgment should be entered against him for the full amount of the liability.
Harold and Dolores Morrell transferred real estate, stocks and other securities to their son, defendant Michael F. Morrell. The real estate, a home in Suffolk County having a fair market value of approximately $400,000 at the time, was transferred by deed dated May 24, 1991, after the assessment and attachment of the government's lien.[2] Harold and Dolores Morrell continued to reside there after the transfer as they had before. There was no mortgage on the property. Harold and Dolores Morrell also transferred to Michael Morrell in May 1991 their holdings in municipal trusts worth over $217,000. The transfer was effectuated by transferring the holdings from the parents' account at Dean Witter to Michael's account at Dean Witter. Michael subsequently transferred the municipal trusts to a joint Dean Witter account of Michael and his spouse. In April 1992, Harold and Dolores Morrell transferred stock holdings worth approximately $200,000 from their Dean Witter account to the Dean Witter account of Michael and his spouse.
Harold Morrell claimed in his deposition that all of these transfers, which admittedly followed the assessment, were not undertaken to avoid payment of tax deficiencies. Instead, he asserted, the assets were transferred in light of the declining health of Dolores Morrell, so that the parents would qualify for government medical assistance. Michael Morrell testified in his deposition that he shared the same understanding of the reason for the transfers of assets, and was not aware at that time of his parents' tax difficulties. For purposes of the summary judgment motion, the government does not contest motivation, but asserts that it is entitled to foreclose on its liens regardless of motivation.
Michael Morrell's assertion of an interest superior to the government liens is based upon the defendants' claim that in exchange for the transfer of assets, Michael orally agreed to support his parents and in fact did so. Defendants argue that Michael Morrell therefore is a "purchaser" protected under 26 U.S.C. § 6323(a) or, alternatively, that he is entitled to an equitable lien for the hundreds of thousands of dollars he spent to support his parents over the years following the transfers of assets.
Harold Morrell testified at his deposition that he and his wife transferred their residence, stocks and securities pursuant to a unitary plan to divest themselves of all assets, and that no other assets were left *133 after the transfers.[3] Harold Morrell testified as follows as to the timing of the alleged support agreement in relationship to the transfer of property:
Q. In connection with the transfer of the assets, did your son later make some promises to you as to what he would do for you?
A. Well, we had set up for a planned estate, and he agreed after we transferred everything over to his name he would support us. We were concerned about our health, my wife's health, which subsequently has died, but concerned about Medicare, so we didn't want to have anything around. So we made a deal. We decided that we'll have Michael take everything now and then support us so that we wouldn't be exposing the assets to Medicaid.
* * * * * *
Q. At the time of the transfers that you made to your son, had your son agreed to give you support?
A. Yes.
* * * * * *
Q. And your recollection is that his promise for the support was before the transfers were made, not after?
A. I don't remember whether it was before or after. I don't remember that part, before or after.
Q. It could have been one or the other?
A. Yeah, it could have been.
* * * * * *
Q. Everything was oral?
A. Oral.
Q. Did your son ever tell you what he would do for you in the way of providing you support?
A. He would support us the way we were ____ the way we lived, you know.
Michael Morrell admitted at his deposition that he first found out about the transfer of property to him during a telephone call from his father saying, "here is what I've done, and I'm really doing this because of these Medicare issues." As far as Michael knew, the documentation for effecting the transfer of securities consisted simply of a name change in ownership of the Dean Witter account. Michael Morrell testified that the circumstances surrounding the support arrangement "was simply, We're going to give you this money, and, you know, I agreed to support them. I mean it was no ____ there was no formal arrangement." Michael reiterated that he thought "the transfer took place and then we had the discussion," which could have taken place one or two months after the transfer. The discussion was: "I would just pay all their expenses." In the deposition, Michael Morrell recollected that the transfer of securities occurred after the real estate had been transferred; he believed the transfer of securities took place in late 1991.
Michael Morrell's affidavit submitted in opposition to the summary judgment motion simply states, in reference to the purported agreement: "In exchange for the transfer of the assets, I agreed to support my parents for their lifetime," and that he "kept that promise" by the substantial deposits to his parents' bank accounts and his purchase of a townhouse in 1996 where his father lives rent free. The affidavit identifies the transferred assets as his parents' entire portfolio of stock and municipal bonds, and their home. The affidavit states that the home was transferred in *134 May 1991, and the securities in May 1991 and April 1992.
In October 1995, Michael Morrell liquidated his joint Dean Witter account and used all of the proceeds to purchase a variable annuity for approximately $833,000. The government claims that its lien attaches to the entire amount of the annuity, which had increased in value to over $1 million as of March 31, 1998. In opposition to the summary judgment motion, Michael Morrell claims that at least $380,000 in the Dean Witter account that was used to purchase the annuity represented separate savings accumulated by Michael and his wife and did not come from his parents. Michael also argues that the government should not be entitled to payment of the portion of the proceeds from his Dean Witter account used to purchase the annuity that represents appreciation in the Dean Witter account; Michael attributes that appreciation in asset value to his prudent and skillful management of the account.
The government agrees in principle that, to the extent that Michael could show that a portion of the annuity was purchased with funds that were not traceable to transfers from his parents after the lien attached, Michael would be entitled to retain a pro rata share of the proceeds of the annuity. However, the government contends that there is no genuine factual dispute that all of the funds in the Dean Witter account that were used to purchase the annuity are traceable to transfers made by Harold and Dolores Morrell after the tax liens had attached. The government also contends that, since the lien follows the property, it is entitled to foreclose on the entire value of the annuity, including any appreciation in value of the annuity or the Dean Witter fund used to purchase the annuity, until the deficiency, including accrued interest, is fully satisfied.
The property that Michael Morrell asserts had been purchased with his own funds is a tax free fund of Dean Witter. Neither Harold Morrell nor Michael Morrell produced most of their securities account records in discovery for the critical period of 1990 through the first few months of 1992, which would have shown all holdings and activity in the accounts in the periods preceding and following the assessments. Michael Morrell's affidavit in opposition to summary judgment attached his Dean Witter account statement for June 1991, which reflected a holding of 33,769 shares of Dean Witter New York Tax Free Inc. Fund, then worth approximately $378,000, as well as approximately $2,000 in a U.S. government money market fund. Michael claimed that these investments were acquired with his own funds and were not derived from property his parents transferred to him. Michael explained his failure to produce that statement and others or to discuss those holdings at his deposition by stating that he had only recently located some of these records, and that his memory had been impaired because of a heart condition. Michael Morrell did not produce any records that showed that he in fact purchased shares of this tax free fund from his own savings. The government responded to this new information by obtaining other records from Dean Witter, including the account statement for Harold and Dolores Morrell as of April 30, 1990, showing that the exact same quantity, 33,769 shares of Dean Witter New York Tax Free Inc. Fund, then worth approximately $364,000, was held in the parents' account.
Because the account statements produced by the defendants and those obtained by the government from Dean Witter are incomplete, there is a gap between *135 the April 1990 statement of the taxpayers and the June 1991 statement of Michael Morrell. Therefore, no document shows when, after April 1990, the 33,769 shares of Dean Witter New York Tax Free Inc. Fund were withdrawn from the taxpayers' account or where it went, or when, before June 1991, 33,769 shares of Dean Witter New York Tax Free Inc. Fund first were carried in Michael's account or where it came from. Defendants argue that there are factual issues, precluding the granting of summary judgment to the government, as to whether this fund was transferred from the parents to Michael Morrell, and if it was, when the transfer took place, i.e., before or after the tax liens attached in November and December, 1990.
Examination of the Dean Witter monthly statements for the account of Michael Morrell and his spouse from the end of 1991 until its liquidation in October and November 1995, when Michael used the entire proceeds to purchase the annuity, confirms the government's assertion that no new money or other assets were put into the account except for securities transferred by Harold and Dolores Morrell in April 1992. Defendants were afforded an opportunity after oral argument to identify any such assets that Michael put into the account, but their counsel notified the court that they had no further information to offer. The account statements show that there were few purchases and sales of securities, except for liquidations to withdraw funds from the account, and that all purchases of securities in the account during this time period were made with the proceeds from redemption of other securities held in the account and accumulated dividends and interest from those securities. Although Michael Morrell placed no new money in the account, he frequently made withdrawals from it between December 1992 and September 1995, for a total of approximately $119,000. The record contains no explanation of these withdrawals. As a result of these withdrawals, there was in fact negligible increase in the value of the account: it had a value of approximately $778,000 on March 31, 1992, $807,000 on November 30, 1992, $781,000 on February 28, 1995, and $814,000 on May 31, 1995, before being liquidated for approximately $833,000 in October and November, 1995.
Discussion
Summary Judgment Standards
Motions for summary judgment are granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. See id. A material fact is one whose resolution would "affect the outcome of the suit under governing law," and a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the nonmoving party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). Nor may the non-moving party "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348. The party must produce specific facts sufficient to establish that there is a genuine factual *136 issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
"Purchaser" Under 26 U.S.C. § 6323(a)
Section 6323(a) of Title 26, United States Code, provides that "[t]he lien imposed by section 6321 shall not be valid as against any purchaser" until notice of the lien has been filed. A "purchaser" is defined in Section 6323(h)(6) as "a person who, for adequate and full consideration in money or money's worth, acquires an interest ... in property which is valid under local law against subsequent purchasers without actual notice." The Treasury Regulations define "adequate and full consideration" to require "consideration in money or money's worth having a reasonable relationship to the true value of the interest in the property acquired." 26 C.F.R. § 301.6323(h)-1 (f)(3). "Money or money's worth" is defined in the regulation as including "tangible or intangible property, services and other consideration reducible to a money value," but excluding such things as "love and affection ... or any other consideration not reducible to a money value." Id. § 301.6323(h)-1(a)(3).
No reasonable juror could find that Michael Morrell was a "purchaser" within the meaning of this provision. First, defendants conceded during oral argument of the summary judgment motion that the purported oral agreement by Michael Morrell to support the taxpayers for their lives is unenforceable under the statute of frauds. Obviously, an unenforceable promise of future support is not "adequate and full consideration in money or money's worth" under any rational construction of the statute.
Second, there is no genuine issue of fact as to the existence of an agreement, even an oral one, in which Michael Morrell furnished consideration in exchange for which Harold and Dolores Morrell transferred these properties to him. Michael Morrell testified at his deposition that his best recollection was that any discussion he had with his father concerning support occurred after the property had already been placed in his name by the unilateral action of his parents. Viewed most favorably to him, Harold Morrell admitted that he could not recall whether any such discussion preceded or followed the transfers. Accordingly, there is no basis for a reasonable jury to find that consideration was furnished in exchange for the transfers of property, even if any such promise would have been enforceable.
Third, even if there had been an agreement that was enforceable before the transfers took place, Michael Morrell's promise to support his parents is not "adequate and full consideration in money or money's worth" for the immediate conveyance of unencumbered assets worth over $800,000 (or almost $1.2 million when the Dean Witter New York Tax Free Inc. Fund is included, see pp. 13-14 infra). The issue of adequate consideration is a matter of federal and not state law, and as the Second Circuit has stated, "a finding that [taxpayer] conveyed the Property to her daughters for adequate consideration under New York law, while helpful, does not provide a rule of decision that [the daughters] are federally protected `purchasers' under Section 6323(a)." United States v. McCombs, 30 F.3d 310, 330 (2d Cir.1994). Nevertheless, in the absence of reported federal cases construing Section 6323's requirement of "adequate and full consideration" when the consideration furnished by the reputed purchaser is a promise of parental support, and notwithstanding the variations in statutory language, the New York decisions that have construed the requirement of "fair consideration" under Section 273 of New York Debtor and Creditor Law in similar circumstances *137 are persuasive.[4] Courts have rejected repeatedly the argument that promises of future support constitute fair consideration within the meaning of Section 273. Schmitt, 98 A.D.2d at 936, 471 N.Y.S.2d 365 (purchaser's promises to take over payments on mortgage, furnace and taxes, to permit debtors to remain in house rent-free, and to convey ten acres to debtors' sons did not constitute "fair consideration" under § 273; "[s]uch promises ... are akin to promises of future support, which are insufficient as a matter of law to be considered a fair equivalent of the property transferred"); Petition of National City Bank of New York, 269 A.D. 1040, 58 N.Y.S.2d 620 (2d Dep't 1945) (promise of future support is not fair consideration); see United States v. Bushlow, 832 F.Supp. 574, 582 (E.D.N.Y.1993) (promises of future services are not "fair consideration" under § 273).
Defendants concede that Harold and Dolores Morrell divested themselves of virtually all their assets when they conveyed their real and personal property to their son, which rendered them unable to satisfy their tax obligations, and received nothing in return except at most an oral promise of support. It is not reasonable to find this promise to be "adequate and full consideration in money or money's worth."
Equitable Lien
Defendants argue that, even if Michael Morrell is not a purchaser within the meaning of Section 6323(a), he is entitled to an "equitable lien," that is superior to the government's lien, for the hundreds of thousands of dollars he spent to support his parents. Pursuant to 26 U.S.C. § 6323(i)(2), equitable subrogation applies in certain circumstances where a transferee of property or a junior lienor has satisfied a lien that is superior to the tax lien. The statute provides: "Where, under local law, one person is subrogated to the rights of another with respect to a lien or interest, such person shall be subrogated to such rights for purposes of any lien imposed by section 6321." Equitable subrogation is designed to avoid the unjust enrichment that would occur if the government could reap the benefit of having the senior lien satisfied but deprive the party who satisfied that senior lien of any benefit in a foreclosure proceeding. To avoid such unfairness, the party that satisfied the senior encumbrance is allowed to assume the position that had been occupied by the original holder of the senior lien, if equitable subrogation is authorized by state law. See United States v. Avila, 88 F.3d 229, 237-39 (3d Cir.1996); Mort v. United States, 86 F.3d 890, 893-95 (9th Cir.1996); Progressive Consumers Federal Credit Union v. United States, 79 F.3d 1228, 1234-37 (1st Cir.1996).
Even assuming arguendo that the Second Circuit would recognize a non-statutory equitable doctrine applicable to tax liens, equitable principles do not point to the relief requested.[5] Michael Morrell did not satisfy a senior encumbrance on any of *138 these properties; indeed, there was no mortgage on the real property. Nor did Michael's payments to his parents confer any benefit upon the government. Michael Morrell received property from his parents that they should have used to satisfy their indebtedness to the government and then gave money back to his parents so that they could continue to live in the same style as that to which they were accustomed, as if they had never incurred liability pursuant to an agreed judgment. Equity is not served by giving Michael Morrell credit for these payments to his parents.
Source of Funds for Annuity
It is undisputed that the residence and over $400,000 worth of securities were transferred from Harold and Dolores Morrell to Michael Morrell after the assessments were made. On review of the entire record, the undisputed facts also establish that additional securities worth approximately $380,000, consisting of 33,769 shares of Dean Witter New York Tax Free Inc. Fund also were transferred to Michael by his parents. With no supporting documentation of any kind, Michael Morrell claims that he purchased the 33,769 shares of the Dean Witter New York Tax Free Inc. Fund with his own money. There is no explanation for the astounding coincidence that a year before, the taxpayers had the exact same number of shares of the same fund in their account. Moreover, Harold Morrell testified that he transferred all of his assets to his son, ostensibly so that Harold and Dolores could qualify for government medical assistance, and defendants offer no other EXPLANATION for the fact that the 33,769 shares of the fund the parents held in 1990 were no longer owned by them later. Since all other securities were conveyed from parents to son by directing transfer of the securities from the parents' Dean Witter account to the son's Dean Witter account, there is no rational basis for concluding that the 33,769 shares in Michael Morrell's account had not also been transferred in the same manner.
Furthermore, no rational juror could find that the transfer of this fund was made by the parents to their son before the liens had attached. As set forth in the Facts section above, Harold Morrell testified that the transfer of all assets held by him and his wife to Michael took place pursuant to one plan to divest themselves of all assets. Michael Morrell testified that all securities he received from his parents were transferred after the residence had been conveyed to him; it is undisputed that the real property was transferred approximately six months after the assessments. The parties agree that the assessments were made in November and December 1990, the real property was conveyed in May 1991, and that other securities were transferred in May 1991 and April 1992. Accordingly, there is no basis in the undisputed evidence for finding that the Dean Witter New York Tax Free Inc. Fund was transferred before the assessments.
Appreciation
Michael Morrell's argument that the government is not entitled to foreclose on the annuity to the extent that it represents appreciation in the value of the security holdings after the transfers of assets from the taxpayers is erroneous. He does not question the well-settled principle that the lien follows the property. "The transfer of property subsequent to the attachment of the lien does not affect the lien, for `it is of the very nature and essence of a lien, that no matter into whose hands the property goes, it passes cum onere ....'" United States v. Bess, 357 U.S. 51, 57, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958) (citations *139 omitted). This principle has been held to mean that the lien attaches to any appreciation in the value of the property until the taxpayer's liability has been discharged. Avila, 88 F.3d at 231, 233-34 (government lien is not limited to taxpayer's equity when he conveyed the property subject to the lien, it also attaches to the appreciation in the value of the property after the conveyance); Han v. United States, 944 F.2d 526, 528-29 (9th Cir.1991) (same); see United States v. Librizzi, 108 F.3d 136 (7th Cir.1997) (government's lien extended to appreciated fair market value of deceased taxpayer's interest in the property at the time of foreclosure and is not limited to value at death).
Furthermore, the premises of defendant's argument, that the annuity was purchased with appreciated assets and that the appreciation is attributable to Michael Morrell's skillful and prudent management of his Dean Witter account, are unfounded under the undisputed facts recited earlier. Almost all of the appreciated value in the Dean Witter account was taken out of it by Michael between 1992 and the account's liquidation in late 1995; and, with the inclusion of approximately $380,000 from the New York Tax Free Inc. Fund that defendant omitted in advancing his contention, the remaining minimal appreciation is attributable to passive reinvestment of interest and dividends which there is no persuasive reason to exempt from the government lien.
Conclusion
The motion of plaintiff United States of America for summary judgment is granted. The government should submit a proposed judgment on fourteen days' notice to the defendants.
SO ORDERED.
NOTES
[1] Dolores Morrell died after this action was commenced and is no longer a party.
[2] The parties agree that the fact that certain transfers were made after the attachment of the liens but preceded their filing, is not determinative in this case.
[3] Harold and Dolores Morrell in fact continued to retain ownership of a condominium, but the government is not seeking to foreclose on that property in this proceeding.
[4] N.Y. Debtor & Creditor Law § 273 declares that any conveyance made by a person who is thereby rendered insolvent is constructively fraudulent as to creditors regardless of the transferor's "actual intent if the conveyance is made or the obligation is incurred without a fair consideration." Section 272 provides that "fair consideration" is given for property when, as a fair equivalent for it and in good faith, property is conveyed or an antecedent debt is satisfied, or when the property is received in good faith to secure a present advance or antecedent debt in an amount not disproportionately small as compared with the value of the property. Schmitt v. Morgan, 98 A.D.2d 934, 935, 471 N.Y.S.2d 365 (3d Dep't 1983), appeal dismissed, 62 N.Y.2d 914, 479 N.Y.S.2d 9, 467 N.E.2d 893 (1984).
[5] In McCombs, 30 F.3d at 333, the court in dictum apparently applied the equitable subrogation doctrine of § 6323(i)(2) without citing the statute.
|
497 F.2d 294
UNITED STATES of America, Plaintiff-Appellee,v.James R. HOFFA and Calvin Kovens, Defendants-Appellants.
Nos. 73-1123, 73-1124.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 14, 1973.Decided May 17, 1974.
Harvey M. Silets, Theodore A. Sinars, Carl M. Walsh, Chicago, Ill., for defendants-appellants.
James R. Thompson, U.S. Atty., Martin B. Lowery, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit judges.
PELL, Circuit Judge.
1
Appellants, James Hoffa and Calvin Kovens, appeal from the district court's taxation of costs of prosecution to them. The appellants were convicted in 1964 of conspiracy and mail and wire fraud. They were sentenced to various terms of imprisonment and fined certain sums together with the costs of prosecution. Subsequent to sentencing, various appeals were taken. In 1972, within one year of the entry of the final order in the case, the Government filed a bill of costs.
2
Conceding that the taxation of costs is a matter of the district court's discretion, the appellants raise three issues on appeal: (1) whether the doctrine of laches prohibits the Government from presenting its bill of costs; (2) whether costs were properly assessed for Government witnesses who were subpoenaed but did not testify; (3) whether costs were properly assessed for Government witnesses at a post-appeal hearing.
3
I. Laches.
4
The appellants first contend that since the Government presented its bill of costs more than eight years after the entry of judgment, the Government has been guilty of laches and should be estopped from collecting these costs at this time. The appellants note that the rules for imposition of costs in criminal cases are the same as in civil cases. Bozel v. United States, 139 F.2d 153, 157 (6th Cir. 1943), cert. denied, 321 U.S. 800, 64 S.Ct. 937, 88 L.Ed. 1087 (1944); 2 Wright, Federal Practice and Procedure: Criminal 528, at 432 (1969). All of the Federal Rules of Civil Procedure, including Rule 54(d) relating to costs, must be interpreted in light of Rule 1, which provides that the tules 'shall be construed to secure the just, speedy, and inexpensive determination of every action.' To permit the Government to recover its costs now, appellants argue, would violate the directive of Rule 1. In so arguing, the appellants rely on United States v. Pinto, 44 F.R.D. 357 (W.D.Mich.1968), in which a delay of almost four years in presenting a bill of costs was held to violate the provisions of Rule 1. As further evidence that the delay in the present case in unreasonable, the defendants point out that where local court rules have been adopted on the subject, the time limit for filing a bill of costs is typically 10 days. If 10 days is a reasonable period, appellants contend, eight years must surely be unreasonable.
5
Two factors cause us to find the defendants' contention of laches unpersuasive. First, during the eight years between the entry of judgment and the filing of the bill of costs, appellants pursued a series of appeals. United States v. Pinto is clearly distinguishable since in that case there was a simple consent judgment with no appeals following. Moreover, the Government did, in the present case, file its bill within one year of the entry of the final order. Second, there was no local rule relating to the time for filing a bill of costs in existence when the judgment was entered.1 The cases cited by appellant dealing with delay where there is such a local rule are, therefore, inapplicable to the situation before us. We are unwilling to declare that the mere fact of an excess of time over that specified in local reules in other jurisdictions is ipso facto unreasonable. In the absence of such a local rule, the circumstances of the particular case must be considered in determining whether the delay was reasonable. While eight years is obviously a long time, nevertheless-- in view of the complicated nature of the case, the series of appeals encompassing seven years, the fact that the bill was filed within one year after the final culmination of the case, the obvious situation that the costs were not going to be paid until every appellate avenue had been exhausted, and the absence of a local rule-- we are unable to say the delay violates Rule 1. Therefore, the district court did not abuse its discretion on taxing costs to appellants.
6
II. Witnesses.
7
The bill of costs assessed against the appellants includes fees for approximately 28 witnesses who were subpoenaed but who never testified. The Government acknowledges that the longstanding rule of this circuit is that a presumption exists that the testimony of such witnesses was not material and, therefore, the fees attributable to these witnesses are not chargeable.
8
'When witnesses are subpoenaed, but do not testify, the presumption is that their testimony was not material and that they were unnecessarily brought to court, and . . . the fees of such witnesses are not chargeable against the losing party.' United States v. Lee, 107 F.2d 522, 527 (7th Cir. 1939), cert. denied, 309 U.S. 659, 60 S.Ct. 513, 84 L.Ed. 1008 (1940).
9
This presumption may be rebutted by proving to the trial court that these nontestifying witnesses were, in fact, material and necessary to an issue in the case. Thus, in United States v. Lee, supra, this court affirmed the granting of such costs where the district court had acted on the basis of duly verified affidavits. Similarly, in Federal Savings & Loan Ins. Corp. v. Szarabajka, 330 F.Supp. 1202 (N.D.Ill.1971), the judge granted such costs after reviewing the depositions of the nontestifying witnesses.
10
Unlike Lee and Szarabajka, Government counsel here did not produce statements of the nontestifying witnesses or explain how the proposed testimony of each such witness was necessary to its case. Rather, Government counsel merely asserted, without presenting any foundation, that the testimony of all subpoenaed witnesses was necessary. Such a bald assertion is not sufficient to rebut the presumption of immateriality. The Government contends that the district judge had 'intimate firsthand knowledge' of the case and, therefore, no further explanation of the necessity of the nontestifying witnesses was required. This contention is without merit for even if the busy trial judge's memory could successfully span nearly a decade as to what witnesses' testimony was relevant and material to an issue in the case and reasonably necessary to its disposition, Federal Savings & Loan Ins. Corp. v. Szarabajka, 330 F.Supp. 1202 (N.D.Ill.1971), we cannot conceive that he could have applied the test to witnesses who did not reach the stand.
11
As the matter stands on this appeal, the presumption of immateriality by the nontestifying witnesses has not been rebutted. It certainly was not rebutted, in our opinion, by the suggestion, in a district court brief filed by the Government, that perhaps these witnesses were to identify the voluminous documents gathered by the prosecution and that their testimony was ultimately deemed unnecessary. Therefore, it is necessary that we reverse the district court's order insofar as it pertains to the costs of the 28 witnesses. This is not so much a matter of abuse of discretion as it is that we are unable to find that any real consideration was given to the question of materiality of their testimony.
12
The reversal projects the next question being the status of whether further proceedings in this matter are proper. The appellants argue, apparently on some sort of an equitable theory, that the order should be vacated as to the 28 witnesses and no further consideration should be given to this phase of the case. While we appreciate the desirability of terminating litigation with reasonable dispatch, we do not think that the Government, if in fact the 28 witnesses were material in the sense in which we have discussed that matter, should be deprived of the opportunity of showing this.
13
Accordingly, this issue will be remanded for further proceedings. This does not necessarily require an evidentiary hearing. Lee, supra. There should be a determination, however, on a factual basis, and in the absence of demonstrable facts the presumption will prevail.
14
III. Post-Appeal Hearing.
15
Finally, the defendants object to the inclusion in the bill of costs of fees relating to a hearing following the initiation of their appeals. This hearing was ordered by the United States Supreme Court (Hoffa v. United States, 387 U.S. 231, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1967)) to determine whether certain evidence used by the Government at the trial tainted the proceedings. (The evidence in question was the tape from an admittedly illegal wiretap.) The appellants contend that these fees are not taxable since such fees arose as a result of appealing and amount to an additional penalty on exercising the right to appeal.2
16
The hearing on remand was clearly a result of defendants' appeal as well as being a phase thereof. Had Hoffa and Kovens not appealed, the hearing would not have been ordered and the costs attributable to it not incurred. While we have found no case dealing directly with this issue, the situation is somewhat analogous to that in North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969), where the Supreme Court held that due process required that 'whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.' The Court in Pearce noted that '(a) court is 'without right to * * * put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered . . .." 395 U.S. at 724. When costs are taxed to a defendant in a criminal case, the costs are part of the sentence. Barnes v. United States, 223 F.2d 891, 892 (5th Cir. 1955). By charging the appellants here with the cost of the post-judgment, appeal-connected hearing, the trial court has, without any statement of reasons, effectively increased penalties because of the appeal. Such a practice, if it is allowed, will discourage defendants from fully exercising their right of appeal.
17
Further, it is of significance that the sole purpose of the hearing was to determine whether the wiretap evidence, which was not admitted by the Government to be illegal until the appeals were lodged in the Supreme Court, tainted the trial proceedings from which the appeals were being taken.
18
In accordance with this opinion, the judgment of the district court is affirmed except (a) as to the 28 nontestifying witnesses, as to which the cause is remanded for further proceedings in accordance with this opinion and (b) as to the costs attributable to the post-conviction hearing as to which the judgment is reversed and vacated.
1
Both sides agree that Local Rule 45, recently adopted by the United States District Courts for the Northern District of Illinois, is inapplicable to the present case
2
Rule 39(b) of the Federal Rules of Appellate Procedure is not directly applicable to the present case since the action, upon remand from the Supreme Court, was within the sole jurisdiction of the district court. Rule 39(b) is relevant, however, insofar as it indicates a general policy of not taxing the costs of the appellate processes to the defendant in cases involving the United States, unless such taxing is authorized by law
|
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20136
Conference Calendar
MARK EDWARD HENRY,
Plaintiff-Appellant,
versus
GARY JOHNSON, Director, TDCJ; RICHARD C. THALER;
TIMOTHY SIMMONS; WAYNE R. SCOTT,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-3816
--------------------
December 12, 2002
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Mark Edward Henry, Texas prisoner # 599904, appeals the
district court’s order granting summary judgment in favor of the
defendants in his civil rights complaint pursuant to 42 U.S.C.
§ 1983. We review the grant of summary judgment de novo under
the same standards applied in the district court. Amburgey
v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991).
Summary judgment is proper when, viewing the evidence in the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-20136
-2-
light most favorable to the nonmovant, “‘there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.’” Id. (quoting
FED. R. CIV. P. 56(c)).
The undisputed evidence shows that prison officials placed
Henry in safekeeping custodial status in response to the known
threat to his safety. Henry has failed to show a genuine issue
for trial that the prison staff was deliberately indifferent to
his safety. See Farmer v. Brennan, 511 U.S. 825, 847 (1994);
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). The district
court did not err in granting summary judgment in favor of the
defendants.
AFFIRMED.
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 22 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-6143
(D.C. Nos. CV-03-1395-M and
ERIC NEIL ANGEVINE, CR-00-106-M)
(W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant Eric Neil Angevine appeals from the denial of his
motion for vacation of sentence under 28 U.S.C. § 2255. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Appellant entered a conditional guilty plea to Count 2 of a two-count
indictment charging him with possession of child pornography on his computer at
his place of employment at Oklahoma State University, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). He admitted in the plea agreement “that he knowingly
possessed images of child pornography . . . [and] that he knew the images were of
persons under 18 years of age engaged in sexually explicit conduct[.]” Aplt. App.
at 18 (R. Doc. 57, ¶ 2). He also admitted at his change-of-plea hearing that he
“possessed images of persons under the age of 18 engaging in sexually-explicit
conduct or in a lascivious exhibition of genitalia[.]” Aplt. App. at 58
(Change-of-Plea Hearing Tr. at 11). He was sentenced to fifty-one months’
incarceration; an $18,000 fine; three years’ supervised release; and a $100 special
assessment. On direct appeal, appellant argued that the results of the search of
his University computer should have been suppressed. We affirmed the denial of
his motion to suppress, and the Supreme Court denied certiorari.
After we decided appellant’s direct appeal, the Supreme Court struck down,
as unconstitutionally overbroad, the definitions of child pornography in 18 U.S.C.
§ 2256(8)(B) and (D), to the extent that those definitions included images that
-2-
“appear[] to be” or “convey[] the impression” of a minor engaged in sexually
explicit conduct. Ashcroft v. Free Speech Coalition , 535 U.S. 234, 241-42, 258
(2002). Appellant filed his § 2255 petition, arguing that his guilty plea was
involuntary because he was not aware of the specific elements of the offense with
which he had been charged. “Specifically, [appellant] argued he was unaware
that the possession of images of what appeared to be children engaged in sexually
explicit conduct could not be criminalized, and that he could only be found guilty
if the government proved beyond a reasonable doubt that the images he possessed
were of actual children engaged in sexually explicit conduct.” Aplt. Br. at 5.
Appellant contended that he would not have pleaded guilty had he known
the true elements of the offense. The district court engaged in a thorough analysis
of the issue. The court denied the § 2255 petition, holding that appellant was
charged with, and pleaded guilty to, possessing images of real children engaged in
sexually explicit activities. Aplt. App. at 189-95 (District Court Order).
Appellant then filed this appeal. The district court granted defendant a certificate
of appealability on the issue summarized above. The government argues that
appellant’s argument is procedurally barred. Appellant counters that any
procedural bar is excused by his counsel’s ineffective assistance.
-3-
“[W]e review the district court’s legal rulings on a § 2255 motion de novo
and its findings of fact for clear error.” United States v. Pearce , 146 F.3d 771,
774 (10th Cir. 1998). In addition,
[a] defendant is procedurally barred from presenting any claim in a
section 2255 petition that he failed to raise on direct appeal unless he
can demonstrate cause for his procedural default and prejudice
suffered thereby, or that the failure to hear his claim would result in
a fundamental miscarriage of justice.
United States v. Wright , 43 F.3d 491, 496 (10th Cir. 1994). We need not address
the procedural bar issue in this case, however, because appellant’s claim fails on
the merits in any event. See id.
Appellant admitted both in the plea agreement and at his change-of-plea
hearing that his computer contained images of “persons” under the age of
eighteen engaging in sexually-explicit conduct. Aplt. App. at 18 (R. Doc. 57,
¶ 2), 58 (Change-of-Plea Hearing Tr. at 11). This language falls squarely within
the definition of child pornography in 18 U.S.C. § 2256(8)(A):
“child pornography” means any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where–
(A) the production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct[.]
Appellant does not dispute the district court’s finding that neither the
indictment, the plea agreement, nor the plea colloquy used the statutory language
disapproved in Free Speech Coalition . See Aplt. App. at 192-93 (District Court
-4-
Order at 4-5). And we have already decided that the holding of Free Speech
Coalition is limited to the unconstitutionality of § 2256(8)(B) and (D), and does
not imply any rule about the rest of § 2256(8). United States v. Kimler , 335 F.3d
1132, 1141-42 (10th Cir.), cert. denied , 540 U.S. 1083 (2003). Appellant’s
authorities offered to show that his plea was defective are inapposite. For all of
these reasons, appellant’s argument that he did not know the elements of the
offense to which he pleaded guilty is baseless.
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-5-
|
320 F.3d 604
Maurice A. MASON, Petitioner-Appellant,v.Betty MITCHELL, Respondent-Appellee.
No. 00-3765.
United States Court of Appeals, Sixth Circuit.
Argued October 24, 2001.
Decided and Filed February 6, 2003.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED David C. Stebbins (argued and briefed), Carol Wright (briefed), Columbus, Ohio, for Appellant.
Matthew C. Hellman (argued and briefed), Charles L. Wille (briefed), Attorney General's Office of Ohio, Capital Crimes Section, Columbus, Ohio, for Appellee.
Before BOGGS, MOORE, and CLAY, Circuit Judges.
MOORE, Judge, delivered the opinion of the court, in which CLAY, Judge, joined. BOGGS, Judge (pp. 642-646), delivered a separate dissenting opinion.
OPINION
MOORE, Circuit Judge.
1
Petitioner-Appellant Maurice Allen Mason ("Mason") was convicted by an Ohio jury of aggravated felony murder, rape, and having a weapon while under disability; he was also found guilty of the death-penalty specification of committing murder in the course of a rape and further specifications that involved firearms, prior felony, and prior offense of violence. Mason was sentenced to death. Mason now appeals the district court's denial of his petition for a writ of habeas corpus and his request for an evidentiary hearing. We have carefully considered all of the eight claims that Mason raises and AFFIRM the district court's decision to deny habeas corpus relief, but with one important exception. Mason contends that he was denied the effective assistance of counsel at the sentencing phase. Because the record as it now stands is insufficient for us to determine whether this claim has merit, we REMAND this case to the district court for an evidentiary hearing on this one issue.
I. BACKGROUND
2
On February 8, 1993, Robin Dennis ("Robin"), the nineteen-year-old wife of Chris Dennis ("Chris"), disappeared. Earlier that day, Robin and Chris had socialized with Mason and other friends, and Chris and Mason had discussed trading Chris's .22 caliber Colt Frontier Scout revolver for Mason's television. The next day, Robin was reported as missing to the Union County Sheriff's Department; the report stated that Mason was the last person seen with Robin.
3
On February 10, 1993, Deputy Sheriff Jack Lautenslager ("Lautenslager") received a report about an abandoned car in a rural area of Marion County. Two days earlier, Lautenslager had driven through that area and seen a black man walking, whom he later identified as Mason.1 Chevron-style shoe impressions, similar to those made by shoes that Mason and Robin owned, were found on the outside of the passenger door and on the passenger's side of the dash. Type-B blood, Robin's blood type, was found on the inside of the passenger door.2 A set of keys, including car keys that fit a 1981 Chrysler owned by Mason's wife, was on the car's front passenger seat.
4
A few hours after this discovery, Dennis Potts ("Potts") of the Marion County Sheriff's Department questioned Mason about Robin's disappearance. This interview took place at the detective's office of the Sheriff's Department and lasted for eighteen minutes. On February 12, 1993, following up on information from other interviews, Potts questioned Mason again. The second interview took place in a basement interrogation room and lasted, with pauses in the questioning, for four hours. Mason appears to have understood that he was not under arrest at this time. After the second interview, Mason's parole officer took him into custody for a parole violation.
5
On February 13, 1993, Robin's body was found inside an abandoned building that was within eighteen minutes' walking distance from where her car had been found. She was lying face down, wearing only a bra; her jeans and underwear were pulled down to her ankles. Robin's T-shirt and car keys were under her jacket, which was found eight feet from her body with burrs and debris on it. The apparent murder weapon, a blood-stained board with protruding nails, was found twenty feet from her body. Another piece of wood found at the scene had strands of hair that matched Robin's hair. On February 15, 1993, detectives found a small blood-stained piece of metal at the crime scene, which a firearms examiner later concluded was identical to a grip-frame from a .22 caliber Colt Frontier Scout revolver and was consistent with having come from the handle of such a revolver.
6
On February 14, 1993, pathologist Dr. Keith Norton ("Norton") conducted an autopsy and concluded that Robin had died as a result of blunt force trauma causing multiple skull fractures. Dr. Norton determined that the blood-stained board found at the scene and the butt of a revolver could have caused Robin's injuries. Dr. Norton also found sperm in Robin's vagina that DNA experts later matched to Mason's DNA. DNA material from Robin's underwear also matched Mason's DNA. The experts did not find DNA from anyone other than Robin and Mason.
7
On September 30, 1993, Mason was charged with (1) aggravated murder, with a death penalty specification that the murder occurred during the commission of a rape; (2) rape, with a prior aggravated felony specification; and (3) having a weapon while under disability, with an offense of violence specification.3 Mason pleaded not guilty. In October 1993, the trial court found Mason to be indigent and appointed Lawrence A. Winkfield ("Winkfield") of Columbus, Ohio, as lead counsel and Ted I. Coulter of Marion, Ohio, as co-counsel.
8
Mason's attorneys filed numerous pretrial motions, including a request for expert assistance and a motion to suppress, both of which the trial court denied after hearing oral argument. The week before trial, defense counsel moved for a continuance, claiming that they needed more time to review the 411 pages of documents that the prosecutor had delivered to them on May 20, 1994. The trial court refused to grant a continuance and threatened to remove defense counsel without paying any fees. On May 31, 1994, Mason proceeded to a three-week-long jury trial; he was found guilty on all three counts.
9
On June 27, 1994, the trial entered the sentencing phase. Mason's mitigation case consisted of the testimony of seven witnesses and Mason's unsworn statement. On June 29, 1994, the jury recommended that Mason be sentenced to death, which recommendation the trial court adopted. On August 9, 1994, the trial court heard oral argument on and then denied Mason's motion for a new trial.
10
Mason then filed a timely appeal to the Court of Appeals for the Third Appellate District, asserting twenty-four assignments of error. On December 9, 1996, the Court of Appeals affirmed the trial court's judgment. State v. Mason, 1996 WL 715480, at *33 (Ohio Ct.App. Dec.9, 1996). Mason thereafter filed a notice of appeal and a brief in the Ohio Supreme Court. On June 17, 1998, the Ohio Supreme Court affirmed Mason's conviction and death sentence on direct appeal. State v. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932, 958 (1998).
11
While his direct appeal was pending, Mason filed a state collateral attack in the Court of Common Pleas of Marion County, asserting seven assignments of error. State v. Mason, 1997 WL 317431, at *1 (Ohio Ct.App. June 6, 1997). On November 21, 1996, the court denied relief without holding an evidentiary hearing. Id. Mason appealed the dismissal of his post-conviction petition to the Court of Appeals for the Third Appellate District, which affirmed the judgment of the Court of Common Pleas on June 6, 1997. Id. at *7. Mason then filed a timely appeal to the Ohio Supreme Court, which dismissed the appeal on October 15, 1997, as not involving any substantial constitutional question.
12
On July 15, 1999, Mason filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising twenty-five challenges to his conviction and sentence. On May 9, 2000, the district court denied Mason's habeas petition and his motion for an evidentiary hearing on various claims. Mason v. Mitchell, 95 F.Supp.2d 744, 795 (N.D.Ohio 2000). The district court subsequently granted a certificate of appealability as to all claims. This timely appeal followed.
II. ANALYSIS
13
We review de novo the legal conclusions of a district court in a habeas proceeding. Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir.2001). Because Mason filed his habeas petition on July 15, 1999, after the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became effective, this case is governed by AEDPA. Id. Under AEDPA's provisions, we may not grant a writ of habeas corpus for any claim that was adjudicated on the merits in state court unless the adjudication:
14
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;
15
or
16
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
17
28 U.S.C. § 2254(d)(1)-(2). In addition, the findings of fact made by a state court are presumed to be correct and can be contravened only if the habeas petitioner can show by clear and convincing evidence that the state court's factual findings were erroneous. Id. § 2254(e)(1). This presumption of correctness also applies to the factual findings made by a state appellate court based on the state trial record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).
18
AEDPA provides the following standard for determining whether a petitioner is entitled to an evidentiary hearing:
19
(e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
20
(A) the claim relies on —
21
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
22
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
23
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
24
28 U.S.C. § 2254(e)(2).
25
In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court interpreted § 2254(d)(1) as requiring a distinction between decisions that are "contrary to" and those that involve an "unreasonable application of" clearly established Supreme Court precedent. Id. at 405, 120 S.Ct. 1495. A state court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at a different result. Id. A state court decision is also "contrary to" Supreme Court precedent if the state court "applies a rule that contradicts the governing law set forth" in that precedent. Id.
26
A state court decision involves an "unreasonable application of" clearly established Supreme Court precedent "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case." Id. at 407, 409, 413, 120 S.Ct. 1495. We may not overturn a state decision simply because we conclude that the state court incorrectly applied Supreme Court precedent. The state court must have applied the relevant Supreme Court precedent in an objectively unreasonable manner. Id. at 411, 120 S.Ct. 1495.
27
In reviewing a state court decision under AEDPA, we must look only to the Supreme Court holdings that existed at the time of the state court's decision. Id. at 412, 120 S.Ct. 1495. We may not base our decision on Supreme Court dicta or the decisions of the courts of appeals. See id.; Mitzel, 267 F.3d at 530-31.
A. Denial of Expert Assistance
1. Trial Phase
28
Mason first argues that the Ohio Supreme Court unreasonably applied clearly established Supreme Court precedent in "[p]remising [an indigent defendant]'s constitutional right to expert and investigative assistance solely on the discretion of the trial court without further review." Petitioner's Br. at 25. Indigent prisoners are constitutionally entitled to "the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) (citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)). Both Britt and Griffin involved requests for free transcripts of trial proceedings. See Britt, 404 U.S. at 226, 92 S.Ct. 431; Griffin, 351 U.S. at 13, 76 S.Ct. 585. The Supreme Court has also held that psychiatric assistance is a basic tool of an adequate defense in two general circumstances: (1) "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial," and (2) "in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness." Ake v. Oklahoma, 470 U.S. 68, 74, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). On appeal, Mason claims that Ake required Ohio to provide him with the following types of expert assistance: (1) a soil and debris expert to examine the soil found on the clothing and shoes of Robin, Mason, and Chris; (2) a shoe-print expert to identify and compare the prints found in Robin's car with those made by the shoes of Mason, Robin, and Chris; (3) a mitigation-investigation expert to examine Mason's background for potential mitigation evidence; and (4) "an independent, competent forensic mental health expert" to help defense counsel at the sentencing phase. Petitioner's Br. at 28-33.
29
In this case, the Ohio Supreme Court understood Ake to "require that a criminal defendant be provided [nonpsychiatric] expert assistance when necessary to present an adequate defense." Mason, 694 N.E.2d at 943. This is consistent with the principle summarized in Ake that:
30
Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system." To implement this principle, we have focused on identifying the "basic tools of an adequate defense or appeal," and we have required that such tools be provided to those defendants who cannot afford to pay for them.
31
Ake, 470 U.S. at 77, 105 S.Ct. 1087 (internal citations omitted). The Ohio Supreme Court then held that nonpsychiatric expert assistance should be provided "only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial." Id. at 944.
32
We are not persuaded that the Ohio Supreme Court applied Ake in an objectively unreasonable manner. In Ake, the Supreme Court weighed three factors in determining whether access to competent psychiatric assistance was required: (1) "the private interest that will be affected by the action of the State"; (2) "the governmental interest that will be affected if the safeguard is to be provided"; and (3) "the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided." Ake, 470 U.S. at 77, 105 S.Ct. 1087. In this case, the Ohio Supreme Court simply stated that trial courts have discretion in evaluating the third factor. We do not believe that this application of Ake was objectively unreasonable. Therefore, bound as we are by the dictates of AEDPA, we hold that Mason is not entitled to habeas relief on this claim.
2. Sentencing Phase
33
Even if his sanity were not a significant issue during the trial, an indigent defendant on trial for his life has the right to psychiatric or psychological assistance during the sentencing phase "when the State presents psychiatric evidence of the defendant's future dangerousness." Ake, 470 U.S. at 83, 105 S.Ct. 1087; Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir.2000), cert. denied, 534 U.S. 943, 122 S.Ct. 322, 151 L.Ed.2d 241 (2001). The State of Ohio did not present such evidence in this case. Therefore, Mason did not have a clearly established right to any psychiatric assistance at sentencing. Regardless of the fact that he was not entitled to such assistance, Mason alleges that the psychiatrist that the trial court did provide was inadequate. However, we have previously read Ake narrowly, holding that the issue is whether a defendant had "access to a competent psychiatrist in preparation of his defense," Skaggs, 235 F.3d at 267 n. 2 (internal quotation marks omitted), and not whether the expert was in fact competent. Id. at 272. We did note in Skaggs that the failure of defense counsel to engage a competent psychiatrist would be relevant in determining whether a defendant received ineffective assistance of counsel. Id. at 267 n. 2. With respect to Mason's Ake claim, however, we conclude that Supreme Court precedent has not clearly established a defendant's right to more than mere access to competent psychiatric assistance.
B. Ineffective Assistance of Counsel
34
Mason argues that the Ohio Supreme Court unreasonably applied clearly established federal law in concluding that he was not deprived of his constitutional right to effective assistance of counsel.4 To establish that counsel afforded ineffective assistance, a petitioner must show that his attorney's performance was deficient, falling below an objective standard of reasonableness, and that such deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The objective standard of reasonableness is a highly deferential one and includes "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052; United States v. Pierce, 62 F.3d 818, 833 (6th Cir.1995) (placing the burden on the defendant to demonstrate a constitutional violation), cert. denied, 516 U.S. 1136, 116 S.Ct. 965, 133 L.Ed.2d 886 (1996). To satisfy the prejudice requirement, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Williams, 529 U.S. at 391, 120 S.Ct. 1495 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). "The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
1. Trial Phase
35
Mason claims that his attorneys provided ineffective assistance before trial in the following areas: (1) counsel failed to obtain certain expert and investigative assistance; (2) counsel failed to obtain the suppression of Mason's statements to the police during the February 10 and 12 interviews; (3) counsel failed to obtain a continuance; and (4) lead counsel was absent during parts of jury selection. He also claims that he received ineffective assistance during the trial due to defense counsel's failure to prepare adequately. Specifically, he argues that defense counsel (1) "fail[ed] to provide any guidance or direction to the jury in [his] opening statement" and "fail[ed] to object to inflammatory portions of the state's opening statement"; (2) "failed to develop and communicate a theory of defense and how such a theory related to mitigation"; (3) "failed to effectively litigate the state's failure to reveal exculpatory evidence"; (4) behaved in an overly aggressive manner; and (5) failed to object to the prosecutor's blatant misconduct. Petitioner's Br. at 67-68.
36
We first observe that Mason's attorneys had close to eight months to prepare for the trial, during which time they filed more than fifty pretrial motions and argued at several pretrial hearings. Mason, 694 N.E.2d at 947. Mason's ineffective assistance claim therefore relates to defense counsel's failure to achieve substantive results rather than a failure to file procedural motions. Cf., e.g., Olden v. United States, 224 F.3d 561, 566-67 (6th Cir.2000). However, Strickland's objective standard of reasonableness does not require lawyers to be perfect. Because defense counsel advocated with vigor on Mason's behalf, we hold that Mason did not receive ineffective assistance with respect to the filing of various procedural motions. As for the fact that Winkfield was absent during parts of jury selection, we agree with the district court that this argument is not compelling because Mason consented to the absences "and co-counsel conducted an effective voir dire" during that time. Mason, 95 F.Supp.2d at 788.
37
Mason's argument that defense counsel failed to prepare adequately for the trial is somewhat stronger, but the record does not contain a great deal of information on this issue. Lead counsel Winkfield apparently acknowledged as late as a week or two before the trial that he had not personally interviewed any of the witnesses for either phase of the trial. J.A. at 1849 (Head Aff. at ¶ 9). He also declared less than a week before the trial started that "it would be great error for [him] to continue," J.A. at 673, because he was not prepared to go forward and "[could not] do so in good conscience and under the professional standards of the code of responsibility to [his] client." J.A. at 679. Co-counsel stated that he had prepared his part of the case but that he could not go forward without Winkfield. At this point, the trial court, distrusting defense counsel's motives, asked Winkfield whether he wanted to withdraw. When Winkfield answered that he "d[id]n't care to withdraw," the trial court stated its willingness to remove Winkfield and impose sanctions by not paying any fees. J.A. at 679. After a thirty-minute conference with Mason and co-counsel, Winkfield informed the trial court that he would stay on the case. Tr. at 700.
38
Although we acknowledge that attorneys' concerns about compensation may adversely affect their representation of clients, we are not persuaded that Winkfield's performance in this case was so deficient as to be objectively unreasonable. Cf. Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir.1997) (holding that defense counsel, whose preparation for trial consisted solely of sixteen hours of interviews with the defendant, "total[ly] fail[ed] to actively advocate his client's cause"); Groseclose v. Bell, 130 F.3d 1161, 1169-70 (6th Cir.1997) (describing defense counsel's "failure to have any defense theory whatsoever" and "failure to conduct any meaningful adversarial challenge" as "especially appalling"), cert. denied, 523 U.S. 1132, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998). First, despite Winkfield's protestations, the totality of the circumstances does not suggest that defense counsel was unprepared for the trial phase. Unlike the "complete lack of pretrial preparation" that the Kimmelman Court decried, 477 U.S. at 385, 106 S.Ct. 2574, Winkfield and co-counsel filed numerous pretrial motions and argued several pretrial hearings. Although attorneys can always do more in preparation for a trial, we cannot conclude that Mason's attorneys did not prepare enough.
39
Second, we are not persuaded that the acts and omissions of defense counsel that Mason identifies as evincing a lack of reasonable professional judgment in fact violated prevailing professional norms. We have read the opening statements of both the prosecution and the defense and disagree with Mason's characterizations of them. We cannot identify any "inflammatory portions" of the prosecutor's statement, Petitioner's Br. at 67; conversely, we conclude that defense counsel provided adequate guidance to the jury by clearly articulating the theory that Chris rather than Mason should be on trial for Robin's murder. Mason's Brady-derived claim of ineffective assistance is simply too summary for us to review. As for the depiction of defense counsel as abusive and argumentative, we recognize that the record reveals considerable animosity between the prosecutor and defense counsel, but fail to see how the latter's advocacy prejudiced Mason's defense. Finally, any failure to object to prosecutorial misconduct did not constitute ineffective assistance of counsel because, as discussed below, we do not believe that the prosecutor acted improperly. We therefore deny habeas relief with respect to this claim.
2. Sentencing Phase
40
Under the Eighth Amendment, the jury in a capital case may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Ohio law thus provides that, once the prosecution has proven one or more statutory aggravating circumstances beyond a reasonable doubt, the jury must weigh the aggravating circumstance(s) against the evidence in mitigation before imposing a death sentence. OHIO REV.CODE ANN. § 2929.04(B). Juries may consider as mitigating evidence "the history, character, and background of the offender," certain specified factors, and "[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death." Id. Moreover, a defendant is entitled to "great latitude" in presenting evidence of any and all mitigating factors. Id. § 2929.04(C).
41
The sole aggravating circumstance in this case was the rape. See OHIO REV. CODE ANN. § 2929.04(A)(7). When the trial court convened the penalty phase of Mason's trial on June 27, 1994, defense counsel offered the testimony of seven witnesses, as well as Mason's unsworn testimony, but did not inquire into mitigating evidence. The first two witnesses were deputy sheriffs from the Marion County Jail, who stated that Mason had not been a problem prisoner.5 Defense counsel then called four members of Mason's family. Given no more direction than to speak on Mason's behalf, Mason's mother, brother, sister, and cousin simply asked the jury not to recommend the death penalty.
42
Defense counsel's direct examination of Mason's wife Terri ("Terri") was almost as perfunctory. Asked whether she had anything to tell the jury, Terri made an emotional plea for mercy. Counsel then asked Terri to identify a few pictures that Mason had drawn for her. On cross-examination, the prosecutor questioned Terri about Mason's art and his activities on the day that Robin disappeared. Redirect-, recross-, and further redirect-examination concerned Terri's interview with the police. Defense counsel did not question Terri again about mitigating evidence.
43
Mason himself spoke as the last mitigating witness. In his unsworn statement, he declared his innocence and requested that the jury "give me the chance to take it through the Appeals Courts." J.A. at 1255. Defense counsel questioned Mason about his drawings and then rested. The prosecutor offered no evidence in rebuttal, but emphasized during his closing argument that defense counsel had not presented any mitigating evidence about Mason's history, character, or background.
44
a. Failure to Investigate or to Prepare Witnesses
45
Mason argues that defense counsel rendered ineffective assistance by failing to conduct an independent and thorough investigation of his life history and psychological background when his family members were available for interviews, thereby foreclosing the discovery of potential mitigating evidence. He also contends that defense counsel's performance in preparing Mason's family members before calling them as mitigation witnesses was constitutionally deficient.
46
In examining Mason's claim of ineffective assistance at the sentencing stage, the Ohio Supreme Court inferred from the record "that defense counsel had voluminous records about [Mason's] history and background" and noted that "[c]ounsel prepared twelve exhibits documenting aspects of Mason's childhood, such as reports that he was beaten by his father and released by his parents to juvenile authorities, as well as early psychological evaluations, but did not present them to the jury." Mason, 694 N.E.2d at 956. The district court similarly deemed meritless Mason's claim "that his trial counsel improperly failed to investigate possible psychosocial mitigating factors that could have spared him the death penalty." Mason, 95 F.Supp.2d at 793.
47
Much has been made in this case of the twelve exhibits that defense counsel prepared in conjunction with the videotaped deposition of Dr. Joseph T. Spare ("Spare"), the psychiatrist appointed by the trial court to assist the defense with the mitigation phase. The mere existence of mitigation exhibits, however, is not conclusive, because the question under Strickland is whether defense counsel's investigation into potential mitigation evidence was constitutionally adequate:
48
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
49
. . .
50
[W]hat investigation decisions are reasonable depends critically on [the information that the defendant supplies]. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions.
51
Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. We have previously held that the complete failure to investigate mitigating evidence constitutes ineffective assistance of counsel. See Austin v. Bell, 126 F.3d 843, 848 (6th Cir.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677 and 523 U.S. 1088, 118 S.Ct. 1547, 140 L.Ed.2d 695 (1998); cf. Scott v. Mitchell, 209 F.3d 854, 881 (6th Cir.) ("Without effective research into the available mitigating testimony, of course, it would be impossible for the lawyers to have made an informed decision either way."), cert. denied, 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000). We have also emphasized the importance of an independent investigation: "The sole source of mitigating factors cannot properly be that information which [a] defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility." Carter v. Bell, 218 F.3d 581, 596 (6th Cir.2000).
52
The record before us is inadequate for a meaningful review of Mason's claim of ineffective assistance of counsel. We recognize that the Strickland Court directed state courts "to analyze effectiveness based on the then prevailing norms and counsel's perspective at the time," Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001), which entails a "highly deferential" standard. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. However, in order for us to evaluate whether defense counsel rendered constitutionally ineffective assistance at sentencing, we must know more about the extent of counsel's investigation and preparation of mitigating evidence. There is a significant likelihood that defense counsel acted unreasonably in failing to conduct an independent and thorough investigation of Mason's background. Because the record as it now stands reflects disputes about defense counsel's performance with respect to the sentencing phase of Mason's trial, we remand the case to the district court for an evidentiary hearing on this issue.6
53
We begin our analysis of Mason's ineffective assistance claim by reviewing the investigation that apparently did take place. In the fall of 1993, soon after Mason was charged with the rape and aggravated murder of Robin, the trial court issued an order appointing an investigator for the defense and authorizing independent DNA testing. J.A. at 1954-55.7 According to the Ohio Supreme Court:
54
The defense team of two lawyers and an investigator looked fully into Mason's background. Moreover, the state had collected and released to the defense in January 1994 voluminous records concerning Mason, including records about his last nine years in and out of prison as well as school records and juvenile incarcerations.
55
Mason, 694 N.E.2d at 945. The record, however, suggests that the investigator's assignment was limited to interviewing witnesses and taking measurements at the crime scene. Tr. at 35-39. Because the case against Mason was based on circumstantial evidence, we infer from the record that the witness interviews were primarily about the facts surrounding Robin's disappearance and murder. Defense counsel indicated as much when the trial court asked why a mitigation expert was necessary given the appointment of an investigator. Tr. at 452. Furthermore, Mason averred that his conversations with defense counsel and the investigator "were almost exclusively about trial phase issues — concerning witnesses, my whereabouts, Chris Dennis and other theories of who had killed Robin Dennis." Maurice A. Mason Aff. at ¶ 5. Mason's family members were also not interviewed about Mason's background. J.A. at 1992 (Terri A. Mason Aff. at ¶ 14); J.A. at 1997 (James Michael Mason Aff. at ¶ 9); J.A. at 2006 (Mioshi Mason Aff. at ¶¶ 13-14).8
56
As for the documents obtained during discovery, the trial court found that defense counsel "had in their possession and had reviewed, prior to trial, over 3,000 pages of comprehensive records and documents regarding [Mason]'s social history, including records from the Marion City Schools, Marion Area Counseling Center, Marion County Children's Services, Marion County Adult Probation Department, Adult Parole Authority, and Ohio Dept. of Rehabilitation and Corrections." State v. Mason, No. 93-CR-0153, slip op. at 9-10 (Ohio Ct.Com.Pl. Nov. 21, 1996). None of these documents is in the record before us.
57
In May 1994, before this case went to trial, the trial court appointed Dr. Spare and a forensic pathologist to assist the defense. J.A. at 1955. Dr. Spare then examined Mason and prepared a five-page psychiatric report. J.A. at 1952. On June 7, 1994, during the trial, defense counsel deposed Dr. Spare on videotape, using twelve mitigation exhibits. These exhibits, according to the record as it stands, appear to have been based largely on the discovery provided by the prosecution to defense counsel.9 As noted above, defense counsel apparently never interviewed anyone, including Mason himself, about possible mitigating aspects of Mason's background, even though various family members were ready and willing to discuss his life history.10
58
Although the Ohio Supreme Court did not make an explicit finding about the extent of defense counsel's independent investigation of mitigating evidence, it did conclude that defense counsel, in choosing not to present whatever mitigating evidence was known, made a strategic decision to foreclose the state from introducing negative evidence in rebuttal. Mason, 694 N.E.2d at 956. Under Strickland, however, courts must first determine whether defense counsel's investigation decisions were reasonable. Only then may they reject a defendant's challenge to any decision characterized as strategic by defense counsel.
59
Had trial counsel conducted an adequate investigation, the jury would have heard substantial evidence about how drug use and violence pervaded Mason's background and life history. From the record before us,11 we have learned that Mason's alcoholic parents were heavy marijuana users and drug dealers from the time Mason was four or five years old. Indeed, Mason's mother admitted "that for the majority of [Mason]'s life the family home was a `drug house.'" J.A. at 1874 (Crates Aff. at ¶ 20S). Four years later, Mason began to experiment with drugs, stealing marijuana and pills from his parents' supply for his own use; by age eleven, he had become a significant user himself. About this time, Mason accompanied his father on trips out-of-state to buy drugs. By age fourteen, Mason began to use drugs with his parents; he also ran away from home. In addition to drugs, violence overran the Mason household. Mason's parents struggled through repeated bouts of domestic violence in front of their children; they also beat Mason on a regular basis for stealing their drugs and for the misconduct of his siblings, for which he was blamed.
60
Having received official documents from the prosecution during discovery, trial counsel appears to have been aware of some of this evidence. Mitigation Exhibit 10, for example, apparently concerned Mason's drug use as a teenager, see Mason, No. 93-CR-0153, slip op. at 5, but not his significant use at a much earlier age. We emphasize that the discovery documents by their very nature only concerned the Mason family's limited contacts with the authorities. For example, a record from Marion County Children's Services indicates that Mason's father was charged with assault in 1977 for beating Mason. J.A. at 1874-75 (Crates Aff. at ¶ 20W). This charge, however, stemmed from a missing person report that Mason's father himself filed with the police; Mason had run away while being disciplined. J.A. at 2000-01 (James Michael Mason Aff. at ¶ 31). The authorities do not appear to have been aware of the regular whippings that Mason suffered. Furthermore, Mason's mother never reported episodes of domestic abuse to the police, because it was "a no-no in our family ... to call the cops ... [W]e didn't want them around." J.A. at 1871 (Crates Aff. at ¶ 20H). Mason's mother also did not go to the hospital, where social services may have intervened and documented the Mason family's plight.
61
Therefore, the documents provided by the prosecution to defense counsel could not have contained anything close to the amount of mitigating evidence that could have been and later was obtained in an independent and thorough investigation.12 Indeed, we find it particularly telling that not even the trial court referred to any knowledge on the part of trial counsel about Mason's troubled childhood or the extent to which drugs and violence ravaged Mason and his family. We believe that it was just this evidence, which did not enter the record until the post-conviction stage, that was Mason's best hope. As we observed in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946, 120 S.Ct. 369, 145 L.Ed.2d 284 (1999), the information about Mason's background may amount to little more than "slim evidence of mitigation, but it is something. And what is most important, it was [his] only shield from a death sentence." Id. at 426. Yet trial counsel does not appear to have made any independent effort to investigate the particulars of Mason's history, character, or background.13 The alleged failure of defense counsel to prepare Mason's family members for their testimony at sentencing further demonstrates that counsel conducted an inadequate investigation of mitigating evidence.
62
Trial counsel's failure to conduct an independent and thorough investigation may have hampered their ability to make strategic decisions at sentencing; it may also have affected their ability to give competent advice to Mason about the meaning of mitigation evidence and the availability of possible mitigation strategies. Indeed, according to Mason, trial counsel did not offer any such advice:
63
Neither of my lawyers ever explained to me what the mitigation trial is or what it was intended to prove. I had no knowledge that mitigation was intended to save my life, or that this was to be the only opportunity for me to demonstrate to the jury why I should not be given the death penalty.
64
Maurice A. Mason Aff. at ¶ 7. The evidence in mitigation that was so readily available in this case offered an arguably reasonable probability of "humaniz[ing Mason] before the jury such that at least one juror could have found he did not deserve the death penalty." Carter, 218 F.3d at 592. Because we cannot determine from the record before us whether the Ohio Supreme Court applied Strickland unreasonably by not examining the extent of trial counsel's investigation into mitigating evidence, we remand the case to the district court with the instruction to hold an evidentiary hearing on Mason's claim of ineffective assistance at the sentencing phase of his trial.
65
b. Failure to Present Mitigating Evidence
66
Next, Mason challenges defense counsel's decision to present a limited mitigation case, when the record as it stands before us indicates that Mason grew up in a dysfunctional family and was repeatedly exposed to violence and drug use from childhood, leading to emotional and psychological problems. We have noted above that much of this evidence does not appear to have been known to trial counsel, due to their alleged failure to conduct an independent and thorough investigation of potential mitigating evidence. Mason contends, however, that he would not have received the death penalty from any jury that heard what mitigating evidence was available.
67
By the time of sentencing, defense counsel had deposed Dr. Spare and prepared the twelve mitigation exhibits. They originally planned to offer as mitigating evidence the testimony of Dr. Spare, who concluded, based on Mason's past conduct, that Mason was unlikely to be a repeat violent offender. Defense counsel ultimately decided not to present this evidence, which, according to the prosecutor, was omitted in order to foreclose rebuttal evidence about Mason's history of violent conduct, allegedly including rape, brandishing a gun, resisting arrest, and burglary. Lead counsel informed the trial court that the decision not to present mitigation evidence was strategic:
68
We have the consideration of Maurice Mason's life, you know, here today, and some strategies that we calculated and designed to procur[e] and achieve a life verdict even with the decision that was rendered by the jury. We are not interested in bringing up certain things or opening the door for certain things that the Prosecution has evidence, a great desire to bring before the jury.
69
J.A. at 1209.
70
The Ohio Supreme Court held that defense counsel's performance at the sentencing stage was not deficient because "the records [showed] prior involvements with the criminal and juvenile justice systems, and other unfavorable matters. Mason could not have presented evidence as to his good character and rehabilitation potential without risking the introduction of negative evidence by the state in rebuttal"; it also concluded that Mason had not shown prejudice. Mason, 694 N.E.2d at 956. The district court focused more directly on the "possible mitigating effects of [Mason's] unfortunate childhood," Mason, 95 F.Supp.2d at 777, but reached the same conclusion:
71
[Mason] has not suggested the existence of any mitigating factor that is not overwhelmingly negated by his history of violent criminal conduct, including a prior rape and firearms offenses, multiple parole violations, and multiple drug offenses stretching as far back as elementary school. [Mason]'s counsel's strategy of not presenting mitigating testimony in order to keep [Mason]'s extensive criminal history from the jury was objectively reasonable. Nor has [Mason] shown prejudice; on this record, Mason cannot show a reasonable likelihood that any juror who was apprised of [Mason]'s complete psychosocial history — including his prior criminal record — would not have voted for the death penalty.
72
Id. at 793 (internal citation omitted).
73
In rejecting Mason's claim of ineffective assistance at sentencing, the district court relied on Scott, in which we held that defense counsel's decision not to present mitigating evidence was reasonable in light of the petitioner's extensive criminal history, which included "commission of robbery, assault, kidnaping, and other violent acts upon innocent citizens." Scott, 209 F.3d at 880. The potential mitigating evidence in that case, as found by the state court after a post-conviction evidentiary hearing, consisted of testimony about the petitioner's "personal loyalty to his siblings, girlfriend, and children, and an exceedingly violent environment throughout his upbringing." Id. Instead of pressing those points, defense counsel chose a strategy of residual doubt and only presented the petitioner's unsworn statement. Id.
74
We recognize the factual similarities between Scott and this case. However, after the Supreme Court decided Williams, we questioned whether the holding in Scott should be limited "to the narrow facts of a federal court contemplating a habeas petition after a state court has conducted an evidentiary hearing and made a finding of fact that had mitigating evidence been introduced, the defendant's recent criminal history would have been presented to the jury in rebuttal." Carter, 218 F.3d at 600 n. 2. As we have noted above, no state or federal court has held an evidentiary hearing on Mason's ineffective assistance claim. We therefore believe that Scott is less relevant than it might otherwise be.
75
Based on the record before us, we agree with the Ohio Supreme Court that defense counsel exercised reasonable professional judgment in deciding not to present mitigating evidence about Mason's "good character and rehabilitation potential," Mason, 694 N.E.2d at 956, but we reiterate that counsel may have rendered ineffective assistance in failing to investigate (and thus being unable to present) potential mitigating evidence about Mason's background. We begin by noting that we have previously deemed the failure to present mitigating evidence when it was available to be "an abdication of advocacy" rather than a strategic decision. Austin, 126 F.3d at 849. This holding, however, necessarily requires an inquiry into the mitigating evidence that was available at the time of sentencing.
76
As discussed above, trial counsel's preparation for sentencing appears to have been limited to reviewing the documents that the prosecution disclosed to them and deposing Dr. Spare, who tried "to determine mitigation" and "to attempt to determine the likelihood of [Mason] being a repeat violent offender and/or his potential for rehabilitation." Smalldon Aff. at ¶¶ 10-11. Dr. Spare concluded his report to defense counsel by predicting Mason's future behavior: "Based on the available evidence, Mr. Mason is not likely to be a repeat violent offender under ordinary circumstances.... [His] pattern is that of avoidance and running away as opposed to aggressive violence." Smalldon Aff. at ¶ 17. Therefore, the mitigating evidence available to defense counsel at sentencing concerned Mason's interactions with the state and Dr. Spare's assessment of Mason's character.
77
In dismissing Mason's petition for post-conviction relief, the trial court referred to the twelve mitigation exhibits in finding that "[t]he evidence regarding [Mason's] background which he now contends should have been introduced, was considered by Defense Counsel." Mason, No. 93-CR-0153, slip op. at 5. The trial court then listed the following evidence that the prosecution could have introduced in rebuttal:
78
A. That [Mason] had multiple juvenile offenses and was committed to the Ohio Youth Commission as a juvenile (Mitigation Exhibits 2, 4, 11);
79
B. That as an adult he had been in and out of prison and that while on parole, he committed multiple parole violations (Mitigation Exhibits 6, 7, 11, 12);
80
C. That [Mason] had been a drug user since age 14 and was also a drug dealer (Mitigation Exhibit 10);
81
D. [That Mason] engaged in other violent conduct, including threatening his ex-girlfriend with a gun (Mitigation Exhibits 11, 12, Deposition of Dr. Spare;);
82
E. That help was offered to [Mason] at an early age, including counseling, in which he refused to participate (Mitigation Exhibit 3);
83
F. That he raped Danielle Miller on October 7, 1992 (Dr. Spare deposition);
84
G. That during the ten years prior to raping and murdering Robin Dennis, [Mason] had spent all but 19 months in prison, which included his parole being violated on four separate occasions (deposition of Dr. Spare).
85
Id. at 5-6. The Ohio Supreme Court determined that defense counsel reasonably chose not to present mitigating evidence about Mason's "good character and rehabilitation potential" because they did not want to run the risk of this negative rebuttal evidence. Mason, 694 N.E.2d at 956. The state supreme court did not explicitly base its conclusion about defense counsel's strategic motivations on whether state law would have allowed the prosecutor to use all of the negative evidence listed above. Cf., e.g., State v. Henness, 79 Ohio St.3d 53, 679 N.E.2d 686, 698 (1997) (limiting a prosecutor's right to "rebut false or incomplete statements regarding the defendant's criminal record ... to those instances where the defense offers a specific assertion, by a mitigation witness or by defendant, that misrepresents the defendant's prior criminal history"). Because state law governs the scope of rebuttal evidence, we as a federal habeas court will accept the Ohio Supreme Court's interpretation of state law. See Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir.2001), cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). However, we observe once again that this reasoning does not apply to mitigating evidence about Mason's background and life history, which trial counsel did not investigate and thus had no opportunity to present at sentencing. Testimony that simply put Mason's childhood into context without misrepresenting it would not have been subject to the prosecutor's rebuttal evidence, which mostly concerned Mason's character.
86
c. Inadequate Psychiatric Assistance
87
Mason argues that he received ineffective assistance of counsel at sentencing because his attorneys acceded to inadequate psychiatric assistance. Specifically, he argues that Dr. Spare, the psychiatrist who examined him for the sentencing phase, failed to develop mitigating evidence and should have been disqualified due to a conflict of interest that stemmed from his treatment of Mason's wife. Petitioner's Br. at 33-34 n.8. In Skaggs, we held that counsel's use of an incompetent psychiatric expert at sentencing constituted ineffective assistance of counsel. Skaggs, 235 F.3d at 273-74. However, the defendant in Skaggs was protected by Ake because he had claimed insanity as a defense at trial. Id. at 264. Mason's defense rested on residual doubt and the argument that Chris had murdered Robin; therefore, Mason was not entitled to psychiatric assistance during the sentencing phase under Ake. Moreover, the two cases can be distinguished because defense counsel did not present any expert psychiatric evidence in this case. Cf. id. at 267 (holding that defense counsel rendered constitutionally ineffective assistance by "fail[ing] to investigate and present meaningful mitigating evidence" and "us[ing] an incompetent and fraudulent `psychologist' as the central mitigation witness").
88
However, according to the record before us, a competent psychiatric expert would have "conduct[ed] a wide-ranging, very thorough inquiry into Mr. Mason's psychosocial background." Smalldon Aff. at ¶ 12. Such an inquiry would no doubt have ameliorated the prejudicial effects of defense counsel's alleged failure to investigate Mason's life history. Therefore, although Mason was not entitled to psychiatric assistance under Ake, he may still have an ineffective assistance claim for the deficient performance of defense counsel in apparently relying on Dr. Spare for an independent investigation into mitigating evidence.
89
Mason pursued his ineffective assistance of counsel claim with diligence, raising it in all of his pleadings. He has yet to receive his request for an evidentiary hearing. We therefore remand this case to the district court with instructions to hold an evidentiary hearing and to determine, in light of the factors that we have discussed, whether defense counsel rendered constitutionally ineffective assistance with respect to the sentencing phase of Mason's trial.
C. Brady Violation
90
After Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a prosecutor who suppresses evidence that is both favorable to a defendant and "material either to guilt or to punishment" violates due process, "irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194. The Brady rule encompasses both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Favorable evidence is material under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682, 105 S.Ct. 3375. A reasonable probability is one that is "sufficient to undermine confidence in the outcome" of the trial. Id. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
91
Mason did not raise a Brady claim on direct appeal, but he did raise one as his third ground for relief in his state post-conviction petition. The state trial court found that the Brady claim was barred by res judicata. The Ohio Court of Appeals held that "nearly all of the [Brady] claims set forth in [Mason's] petition were, or should have been[,] raised on direct appeal from his conviction," and then ruled against Mason on the merits. Mason, 1997 WL 317431, at *6. The district court found that Mason was in procedural default on the Brady claims, had not shown cause or prejudice, and could not make out a true Brady violation. Mason, 95 F.Supp.2d at 758.
92
In Coleman v. Mitchell, 268 F.3d 417 (6th Cir.2001), we reiterated that the application of res judicata under Ohio law "is an adequate and independent state ground justifying foreclosure of constitutional claims in habeas." Id. at 427 (citing Rust v. Zent, 17 F.3d 155 (6th Cir.1994) and Riggins v. McMackin, 935 F.2d 790 (6th Cir.1991)). However, federal habeas relief is available for constitutional claims defaulted in state court if a petitioner demonstrates cause and prejudice. Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).
93
Mason attempts to dispute the district court's finding that the Brady claims were procedurally defaulted, but his arguments essentially point to cause. First, citing Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988), Mason suggests that "the [state's] very act of withholding the evidence in the first place establishes `cause' for any alleged procedural default." Petitioner's Br. at 88. Second, he argues that "the fact that the documents were not available until state post-conviction again establishes adequate `cause' for any alleged default. A petitioner is not required to raise on direct appeal claims for which he lacks a basis in fact, especially where the state has actually concealed the facts." Petitioner's Br. at 88 (internal citation omitted). However, as the district court noted, Mason has not shown why the basis for a Brady claim was not available on direct appeal. Conclusory statements about state concealment will not support a finding of cause. Amadeo, 486 U.S. at 222, 108 S.Ct. 1771 ("[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.") (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).
94
Even assuming that Mason did have cause for failing to raise his Brady arguments on direct appeal, we are not persuaded that he can show prejudice. To obtain relief, Mason "must convince us that `there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). In examining the suppressed evidence, we must ask "whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 290, 119 S.Ct. 1936 (quotation omitted). We conclude that we cannot answer this question in the affirmative.
95
Mason describes three general categories of evidence that was allegedly withheld from his defense: (1) statements made by Robert Rodeffer ("Rodeffer") to police and medical personnel that he had been present at Robin's murder; (2) exculpatory statements made by Michael and Carolyn Young, friends of the Dennises, to Captain Al Hayden ("Hayden"), who interviewed them three days before the jury was impaneled; and (3) pretrial statements of various witnesses that were allegedly inconsistent with their testimony at trial. The district court reviewed the record and determined that there was no reasonable probability that the disclosure of these statements would have produced a different result at trial. Mason, 95 F.Supp.2d at 758-60. We agree.
96
Rodeffer was arrested on February 19, 1993, four days after the discovery of Robin's body, for stealing whiskey from a convenience store. At the time of his arrest, Rodeffer was both intoxicated and suicidal; he had apparently consumed three-quarters of a fifth of whiskey and seven sleeping pills. Soon after making the arrest, the police transported Rodeffer to Marion General Hospital for a medical evaluation. While being examined, Rodeffer indicated to the arresting officer that he had information about Robin's death, which he intimated was "satanic related." J.A. at 1915. Rodeffer stated that Robin had been ordered to get out of her car, hit in the back of the head, and then "hung by her neck with a large log chain." J.A. at 1923. As the district court noted, this description of Robin's injuries was inconsistent with her actual injuries. Mason, 95 F.Supp.2d at 758.
97
After reviewing Rodeffer's statements and the surrounding circumstances, the district court concluded that "it strains credibility past the breaking point to suggest that there is a reasonable probability Rodeffer's evidence would have produced a different verdict." Mason, 95 F.Supp.2d at 758. Mason contends that the district court's dismissal of Rodeffer's statements amounted to "an impermissible credibility determination that is not supported by the evidence and[,] more importantly, is not a factor properly considered in analyzing a Brady violation." Petitioner's Br. at 89. We disagree. Bagley instructs courts to remedy a Brady violation only if the undisclosed evidence presents a reasonable probability of a different result at trial. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. It was thus proper for the district court to consider the circumstances of Rodeffer's statements.
98
Mason also asserts that he suffered prejudice due to the nondisclosure of notes that Hayden took while conducting telephone interviews of the Youngs shortly before Mason's trial began. The district court summarized these notes as follows:
99
During Hayden's conversations with the Youngs, both Michael and Carolyn Young indicated that they had moved from Ohio to South Carolina because they were receiving threatening letters and telephone calls from unknown people in connection with the trial. Michael Young told Captain Hayden that when Chris Dennis woke up late in the evening on February 8, 1993, he was angry that Robin Dennis was not there, and said he would kill her when he found her. Carolyn Young said she thought she had seen, several hours after Dennis was last seen alive, the Harley-Davidson T-shirt Dennis was wearing at the time of the murder. Carolyn Young said she thought she had seen Robin Dennis riding in a car on the evening of February 8, 1993, several hours after the prosecution argued that [Mason] killed Dennis. Both Youngs expressed concerns that Chris Dennis might have killed his wife in order to gain the proceeds of her life insurance.
100
Mason, 95 F.Supp.2d at 759. Mason contends that these statements were necessary to his defense theory that Chris murdered his wife. The district court's review of the trial transcript, however, resulted in a finding that "the record demonstrates conclusively that [Mason] not only had access to, but actually attempted to proffer at trial, every piece of exculpatory evidence he now alleges he was unfairly deprived of by the state's failure to disclose Captain Hayden's telephone conversations with Michael and Carolyn Young." Id. at 760. Because the direct and cross-examination of witnesses imparted the substance of these conversations, the district court concluded that the disclosure of the notes themselves would not have created a reasonable probability of a different verdict. Id.
101
We agree with the district court that Mason was not prejudiced by the nondisclosure of Hayden's notes. Both the Youngs testified at Mason's trial that, on the night of Robin's disappearance, Chris had stated his intention to kill her if he found her. Moreover, defense counsel cross-examined Michael Young about Chris's threats. Carolyn Young also testified on direct and cross-examination about Robin's Harley-Davidson shirts. As for the sighting of Robin on the night of her disappearance, Carolyn Young testified that she believed that she had seen Robin between 9:30 and 10 p.m., but stated that she had not worn her glasses and could not be certain about whether she had actually seen Robin in the car. Chris himself testified on both direct and cross-examination about being the beneficiary of Robin's life insurance policy. In light of the direct and cross-examination of the Youngs, we agree with the district court's conclusion that Hayden's notes do not present a reasonable probability of a different result at trial.
102
Finally, Mason claims that he suffered prejudice as a result of the prosecution's failure to disclose pretrial statements of seven witnesses, including the Youngs and Chris. According to Mason, all of these witnesses had seen Robin on the day of her disappearance and all "had given different versions of the facts surrounding the death of Robin Dennis [that] were impeaching as well as exculpatory and were required to be disclosed by the state." Petitioner's Br. at 85. We are unable to find the existence of any such documents in the record. We also agree with the district court's observation that defense counsel "cross-examined each of the listed witnesses in detail, and frequently used pretrial statements from those witnesses for impeachment purposes." Mason, 95 F.Supp.2d at 760. Because Mason failed to indicate the existence or location of these statements, we conclude that he has been unable to show prejudice from their nondisclosure and that he has failed to overcome his procedural default, precluding him from asserting a Brady violation before us.
D. Miranda Violation
103
Since Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), courts have protected a defendant's privilege against self-incrimination by suppressing any statement "stemming from custodial interrogation of the defendant" if the police failed to comply with certain procedural safeguards. Id. at 444, 86 S.Ct. 1602. At trial, the prosecution introduced statements that Mason had made to the police during interviews on February 10 and 12, 1993. Mason contends that the trial court should have suppressed these statements because they were made while he was in custody and before he received any Miranda warnings. The Ohio Supreme Court disagreed, concluding from the circumstances of the February interviews that Mason was not in custody during his interrogation and that he had made the statements voluntarily. Mason, 694 N.E.2d at 946. Because the state court correctly invoked Miranda in this case, we review its decision under the "unreasonable application" prong of § 2254(d)(1), specifically whether its application of the legal principles was "objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. 1495. We must presume that the state court's factual findings are correct unless Mason offers clear and convincing evidence to rebut this presumption. 28 U.S.C. § 2254(e)(1).
104
The Miranda Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. A suspect is "in custody" for purposes of receiving Miranda protection if there has been a "formal arrest or restraint on freedom of movement." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). "[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). Miranda warnings are not required "simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Mathiason, 429 U.S. at 495, 97 S.Ct. 711). "[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).
105
In this case, Potts questioned Mason twice about Robin's disappearance. The first interrogation, which took place in the early afternoon of February 10, 1993, at the Sheriff's Office, was recorded on audiotape and lasted eighteen minutes. At the hearing on Mason's motion to suppress the statements made at this interrogation and the interrogation that followed, Potts described Mason as "real cooperative" and testified that Mason told him "to come back by" if he needed anything else. J.A. at 430, 460. Mason agreed that he made a "voluntary choice" to answer Potts's questions about Robin. J.A. at 506.
106
The second interrogation took place on February 12, 1993, in an interrogation room located in the basement of City Hall. This interview was also recorded, but it lasted for almost four hours. Mason was not formally arrested or told that he could not leave. He asked whether he was under arrest sometime after 4:03 p.m. and was told that he was not. Mason later testified that his mobility was hampered by being questioned in the basement. He also testified that he asked the police to take him back home and to terminate the interview.14 However, he acknowledged on cross-examination that he could have gotten out of the interrogation room. After this interview, Mason's parole officer took Mason into custody for violating the conditions of his parole. Potts then gave Mason his Miranda warnings. The interview ended when Mason refused to waive his Miranda rights and requested a lawyer.
107
Mason argues that he was in custody during the interviews of February 10 and 12 and that his statements to the police should consequently not have been admitted at trial. Mason points to the following factors: (1) he was the sole suspect in the investigation; (2) he was transported by car to the police station for questioning,15 "precluding his ability to leave without the officers['] permission and willingness to drive him home"; (3) he was questioned at the police station and "interrogated for four hours (in an increasingly hostile setting)"; (4) he was "lied to by the officers regarding eyewitnesses['] placing Mason at the crime scene"; (5) he was "repeatedly told he was not under arrest even though his parole officer stood ready to immediately arrest him as soon as the interrogation ceased"; and (6) he was arrested for a parole violation after the February 12 interrogation. Petitioner's Br. at 95-96.
108
However, we agree with the State of Ohio that these circumstances do not demonstrate the functional equivalent of an arrest. Mason's first argument is unavailing. See Stansbury, 511 U.S. at 319, 114 S.Ct. 1526 ("[A]n officer's subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody."). We deem the mode in which Mason was transported for questioning to be irrelevant, because Mason himself admits that he "voluntarily came to the police station twice." Petitioner's Br. at 113. The fact that Mason was questioned in a "coercive environment" such as a police station does not necessarily constitute custodial interrogation. Mathiason, 429 U.S. at 495, 97 S.Ct. 711; United States v. Salvo, 133 F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122, 118 S.Ct. 1805, 140 L.Ed.2d 943 (1998). Miranda requires a significant deprivation of freedom. The possibility that Mason may not have been aware of the consequences of his participation in the interviews does not mean that he was in custody. See Beheler, 463 U.S. at 1125 n. 3, 103 S.Ct. 3517. Mason was repeatedly told that he was free to leave when he wished. The state courts concluded that Mason was not in custody at the time of questioning because he was not under arrest and he voluntarily agreed to answer the police's questions. Mason has not demonstrated that this determination was an unreasonable application of federal constitutional law to the facts of his case. We thus deny Mason habeas corpus relief with respect to this claim.
109
"Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence." Miranda, 384 U.S. at 478, 86 S.Ct. 1602. The Ohio courts found that Mason's statements were voluntary. Mason, 694 N.E.2d at 946. Because Mason has not presented clear and convincing evidence to the contrary, we defer to the state courts' factual finding and hold that their application of Miranda was not objectively unreasonable.
110
E. Right to Confront Witnesses and to Present a Defense
111
Mason argues that the trial court violated his right to confront the prosecution's witnesses and to present a defense by restricting cross-examination of Chris, who had a history of violent assaults on Robin and others. Mason asserts that the Ohio Supreme Court's decision to uphold the trial court's exclusion of this evidence was an unreasonable application of the following principles from Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967):
112
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
113
Id. at 19, 87 S.Ct. 1920. The State of Ohio does not dispute that a defendant may offer evidence to show that a third party committed the crime, but it contends that rules of procedure and evidence constrain the right to present evidence. Mason claims that his right to a fair trial should control.
114
In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court proclaimed that "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Id. at 302, 93 S.Ct. 1038. The right to present witnesses, however, is not absolute. "In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id. Mason does not argue that the Ohio rule barring evidence of prior bad acts is unfair or unreliable. Instead, Mason contends that this rule's protection should extend to defendants but not to witnesses. We are not persuaded that any such proposition is clearly established federal law as determined by the Supreme Court, and therefore decline to grant habeas relief on this ground.
115
Mason also argues that evidence of Chris's violent tendencies was admissible to show his bias or motive in testifying for the prosecution. The Supreme Court has recognized a defendant's constitutional right to test the credibility of witnesses through cross-examination. See Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); see also Chambers, 410 U.S. at 295, 93 S.Ct. 1038. Forbidding inquiry into a witness's bias can violate the Confrontation Clause. Delaware v. Van Arsdall, 475 U.S. 673, 679-80, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). However, a trial court retains discretion to limit the scope of cross-examination, based on concerns such as "harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant." Id. at 679, 106 S.Ct. 1431. In short, the Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).
116
In this case, Mason's defense at trial was that Chris had murdered Robin. It was thus in Mason's interest to demonstrate Chris's bias and motive for testifying against Mason. Mason was allowed to present evidence of and to cross-examine Chris about Chris's heavy drinking and violent tendencies, including two incidents of wife-beating. See Mason, 95 F.Supp.2d at 779. The trial court also permitted defense counsel to present evidence of and to cross-examine Chris about an alleged threat to kill Robin on the day that she disappeared. The jury also learned on both direct and cross-examination of Chris that Robin had made him the beneficiary of her life insurance policy. However, the trial court ruled that evidence about Chris's history of assaults was inadmissible because it was proffered by Mason only for the purpose of showing that Chris acted in conformity with the prior acts and was therefore likely to have murdered Robin.
117
Mason's first Confrontation Clause argument appears to have been that the evidence should be admitted to prove identity. Defense counsel alleged that Chris had previously beaten a person and "left [that person] for dead in a field," J.A. at 758, just as Robin was left in an abandoned rural area. However, he also argued in the alternative that Chris's violent acts should be admitted "not as specific instances to impeach credibility, but to show possibility of intent, motive, [and] similar modus operandi." J.A. at 758-59. Finally, defense counsel wanted to impeach Chris's credibility by showing "other inconsistencies and what we believe to be untruths and/or lies." J.A. at 759; see also J.A. at 785 (contending during opening argument that "Chris Dennis has lied about certain aspects of this case from the very beginning"). But see J.A. at 1593 (arguing, in Mason's brief to the Ohio Supreme Court, that "[t]he jury was not being asked to consider this evidence as impeaching").
118
Neither the Ohio Supreme Court nor the district court examined Mason's Confrontation Clause claim as such, holding instead that the evidence was not admissible under Ohio Rule of Evidence 404(A), which bars the use of propensity to prove conduct. The Ohio Supreme Court first rejected Mason's argument that Rule 404 should not apply to Chris because he was a witness rather than a defendant on trial. Mason, 694 N.E.2d at 950. It then observed that the trial court had allowed Mason "to present some evidence that tended to show the criminal propensity of Chris Dennis," including testimony about two incidents when Chris struck Robin in the face. Id.
119
We recently considered the Confrontation Clause in Boggs v. Collins, 226 F.3d 728 (6th Cir.2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1245, 149 L.Ed.2d 152 (2001). Although that case was decided under pre-AEDPA standards, it is still instructive. The Boggs court noted that courts had found Confrontation Clause violations when defense counsel had advanced "an articulated theory that a witness had a motive to fabricate." Id. at 741. The record in this case, to the extent that Mason's attorneys based the defense on residual doubt, only barely suggests that they pursued a bias theory at trial. The trial court consistently framed the question as one of propensity, and defense counsel did not suggest otherwise. We thus conclude that Mason has failed to show that the Ohio Supreme Court unreasonably applied clearly established Supreme Court precedent in upholding the trial court's exclusion of certain evidence of Chris's violence.
F. Prosecutorial Misconduct
120
Mason argues that "[t]hroughout the trial and penalty phases, the prosecutor engaged in egregious misconduct designed to prejudice Mason and to inflame the passions of the jury, thus depriving Mason of due process and a fair trial." Petitioner's Br. at 108. The relevant question in cases of alleged prosecutorial misconduct is "whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). "[T]he misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant." Simpson v. Jones, 238 F.3d 399, 409 (6th Cir.2000) (internal quotation marks and citation omitted). A claimant must establish that the challenged statement was both improper and so flagrant as to require reversal. Boyle v. Million, 201 F.3d 711, 717 (6th Cir.2000). We have previously identified four factors that are relevant in analyzing a claim of prosecutorial misconduct:
121
In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive, whether they were deliberately or accidentally placed before the jury[;] and the strength of the competent proof to establish the guilt of the accused.
122
Hill v. Brigano, 199 F.3d 833, 847 (6th Cir.1999) (quotation omitted). We review a prosecutorial misconduct claim for harmless error. Id.
123
We first note our previous holding "that Ohio's contemporaneous objection rule constitutes an adequate and independent state ground that bars federal habeas review absent a showing of cause and prejudice." Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.2001). "Moreover, we view a state appellate court's review for plain error as the enforcement of a procedural default." Id. "In determining whether state courts have relied on a procedural rule to bar review of a claim, we flook to the last reasoned opinion of the state courts and presume that later courts enforced the bar instead of rejecting the defaulted claim on its merits." Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)).
124
Mason presented numerous claims of prosecutorial misconduct to the district court, which found them to be procedurally barred. Mason, 95 F.Supp.2d at 779-85. Defense counsel failed to make contemporaneous objections to most of the alleged instances of prosecutorial misconduct. Therefore, in the last reasoned opinion by a state court reviewing these claims, the Ohio Supreme Court expressly enforced Ohio's contemporaneous objection rule and reviewed for plain error. Mason, 694 N.E.2d at 951.
125
Defense counsel did object to a question about DNA testing. Addressing this claim on the merits, the Ohio Supreme Court held that the prosecutor had not acted improperly. Mason, 694 N.E.2d at 951. Mason has thus waived the right to federal habeas review on all but one of his prosecutorial misconduct claims unless he can demonstrate cause and prejudice or make "a showing of a fundamental miscarriage of justice." Hinkle, 271 F.3d at 245 (quoting Simpson, 238 F.3d at 406).
126
Mason argues that "the prosecutor engaged in ongoing misconduct" during cross-examination by "attacking counsel's defense strategies[,] over which Mason had no control." Petitioner's Br. at 110. One of the prosecutor's questions concerned Mason's extramarital relationship with Robin: "Is that the same reason that when this case started, in order to contest the DNA results, you had your attorneys do independent testing to see if our DNA results were right?" J.A. at 1092. Defense counsel raised an objection, which the trial court overruled. We agree with the district court that this question was not improper. The credibility of a criminal defendant who testifies may be impeached like that of any other witness. Greer, 264 F.3d at 683. The question about Mason's reason for conducting independent DNA testing followed his testimony about a statement to the police in which he denied knowing Robin or ever being alone with her. The prosecutor was thus impeaching Mason by showing inconsistencies between his pretrial statement to the police and his testimony at trial.
127
Mason argues on appeal that another question, pertaining to his failure to produce records that showed his employment at the local festival where he met Robin, demonstrates misconduct, as do the prosecutor's "ridicul[ing] each of the defense theories" during his closing argument for the liability phase, Petitioner's Br. at 111, and his closing argument for the penalty phase. We first note that defense counsel made no contemporaneous objections. The Ohio Supreme Court reviewed for plain error, Mason, 694 N.E.2d at 951, thus barring federal habeas review absent a showing of cause and prejudice. We are not persuaded that Mason has shown cause and prejudice to excuse the procedural default and therefore deny habeas relief with respect to this claim.
G. Juror Bias/Misconduct
128
The Sixth and Fourteenth Amendments to the Constitution guarantee a criminal defendant the right to an impartial jury. Morgan v. Illinois, 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Under clearly established Supreme Court precedent, a defendant who alleges implied juror bias is entitled to a hearing in which he has "the opportunity to prove actual bias." Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Dennis v. United States, 339 U.S. 162, 171-72, 70 S.Ct. 519, 94 L.Ed. 734 (1950). However, pursuant to Ohio Rule of Evidence 606(B), evidence of statements made during the course of jury deliberations is not admissible, a rule in keeping with the general theory that jurors are incompetent witnesses of their own misconduct. A juror may testify about "extraneous prejudicial information" or "outside influence." Id. We recently held that the Ohio courts' application of this statute to dispose of biased jury claims violated clearly established Supreme Court precedent that recognizes the fundamental importance of a defendant's constitutional right to a fair trial. Doan v. Brigano, 237 F.3d 722, 732 (6th Cir.2001). In Doan, we concluded that a juror's presentation of an out-of-court experiment to other jurors was constitutional error, but that this error was harmless. Id. at 739.
129
In this case, Mason alleges that juror bias or misconduct resulted when various jurors (1) made racial slurs, (2) presumed Mason's guilt, (3) slept during trial, and (4) conducted and then presented an out-of-court investigation. The first three involve internal influences, and under Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), testimony on those subjects should have been barred by the evidentiary rule prohibiting juror impeachment of a jury verdict. Id. at 121, 107 S.Ct. 2739; cf. United States v. Logan, 250 F.3d 350, 380 n. 2 (6th Cir.) (recognizing the difference in how the Doan and Logan panels framed the issue), cert. denied, 534 U.S. 895, 122 S.Ct. 216, 151 L.Ed.2d 154 (2001). However, under Doan, the question is whether Mason received a fair trial. Mason did have an opportunity to prove actual bias when the trial court heard oral arguments on his motion for a new trial. The trial court denied the motion, finding that the jurors' conduct did not impair Mason's ability to receive a fair trial. We must presume that the trial court's factual determinations are correct unless Mason rebuts that presumption with clear and convincing evidence.
1. Racial Slurs
130
Mason argues that he was denied a fair trial because of the racial prejudice of an all-white jury, which manifested itself through generalizations about race16 and the use of black slang.17 Individual jurors were disturbed by the racist comments but apparently did not understand that they could do anything about it. After reviewing the affidavits of all twelve jurors18 and hearing testimony from the court bailiff, three jurors, and an alternate juror, the trial court found that "[a]t no time during the trial did any of the jurors participate in any acts of racism which could have impaired [Mason's] ability to receive a fair trial." J.A. at 1487.
131
The question on habeas is whether Mason can rebut the presumption that the state court's factual findings are correct. Alternate juror Mary Beckholt ("Beckholt") testified that the racist comments, in her opinion, could have violated Mason's right to a fair trial: "I felt it was unfair. I felt it was wrong, and I felt that people were making — if they were judging — making judgmental comments of that sort, how could they fairly judge the case?" J.A. at 1401. Beckholt, however, did not participate in the jury's deliberations. Because Mason does not offer any evidence other than that which the trial court had at the time it made its factual finding, we deny habeas relief with respect to this claim.
2. Presumption of Guilt
132
Mason alleges that juror Russell L. Dennis expressed belief in Mason's guilt before formal deliberations began. When questioned about such a statement, the juror acknowledged saying, "Maybe he's pleading guilty," J.A. at 1378, but testified that he "really ... hadn't formed an opinion. It was just wishful thinking because it was late in the day and everybody was tired." J.A. at 1380. The trial court found "no substantial evidence that any juror made any comment during the trial which demonstrated that he or she had failed to keep an open mind so as to be able to fairly decide the evidence in this case." J.A. at 1487. Absent clear and convincing evidence to the contrary, we must defer to the state court's factual finding, and therefore deny habeas relief with respect to this claim.
3. Sleeping During Trial
133
Mason alleges that juror Wanda Straub ("Straub") fell asleep during the trial. The record is unclear as to whether the juror slept during proceedings in the courtroom or during breaks in the jury room. However, Straub averred that she "was awake and attentive during all proceedings of the trial." J.A. at 1479 (Straub Aff. at ¶ 2). The trial court made the same finding with respect to all twelve jurors. Absent clear and convincing evidence to the contrary, we must defer to the state court's factual finding, and therefore deny habeas relief with respect to this claim.
4. Extrinsic Evidence
134
This case involves an out-of-court investigation similar to the one in Doan, in which a juror put lipstick on her arm to simulate a bruise and then determined that such a bruise could be seen in a darkened room. Doan, 237 F.3d at 727. In this case, juror Mary Downs ("Downs") disassembled her husband's revolver to see whether the grip looked like the one shown in court. The juror stated that she conducted this experiment and informed other jurors after the jury had returned a guilty verdict. However, Beckholt, who did not participate in the jury's deliberations, testified that Downs reported her results during the trial. The trial court found that Downs's actions "did not influence the verdict in this case and as such, [Mason] was not prejudiced by this conduct." J.A. at 1487-88.
135
We review constitutional errors at trial such as Sixth Amendment violations under a harmless error standard. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Doan, 237 F.3d at 736. The habeas petitioner must show that the trial error "had substantial and injurious effect or influence in determining the jury's verdict." Doan, 237 F.3d at 736 (quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710). Although Downs's presentation of her out-of-court findings may have been constitutional error, Mason cannot demonstrate that it substantially affected or influenced the jury's verdict. The evidence at trial was more extensive than the gun grip that was the subject of Downs's experiment; in fact, the alleged murder weapon was the wooden board with nails attached to it. We therefore deny habeas relief with respect to this claim.
H. Sentencing Phase Instructions
136
Mason claims that the trial court's instructions to the jury led to "an unreliable sentencing determination." Petitioner's Br. at 135. Specifically, he argues that the trial court committed constitutional error by (1) failing to define "mitigation" or "mitigating factor," (2) refusing to instruct the jury on residual doubt, and (3) failing to remove the death sentence from an allegedly deadlocked jury. "On habeas review, errors on instructions are not reviewable unless they deprive a defendant of constitutional due process." Gall v. Parker, 231 F.3d 265, 321 (6th Cir.2000), cert. denied, 533 U.S. 941, 121 S.Ct. 2577, 150 L.Ed.2d 739. The question before us is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)).
1. Failure to Define Mitigation
137
Mason complains that the trial court failed to explain the meaning of "mitigation" or "mitigating factor," leaving the jury "to speculate throughout the trial as to what it was they were supposed to be considering." Petitioner's Br. at 135. We note as an initial matter that, contrary to Mason's claims, the Supreme Court precedent that existed prior to Mason's conviction did not clearly establish a defendant's due process right to a jury instruction on the definition of mitigation.19 Mason's reliance on Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), is unavailing. Although the trial court in that case did define "mitigating circumstances" as "circumstances not constituting justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or punishment," id. at 590-91, 97 S.Ct. 2861 (internal quotation marks omitted), the question before the Supreme Court was whether a sentence of death for the crime of rape was cruel and unusual punishment prohibited by the Eighth Amendment. Id. at 586, 97 S.Ct. 2861. Indeed, the trial court gave the instruction pursuant to state statute. Id. at 589, 97 S.Ct. 2861. Coker therefore provides no support for the due process claim that Mason must successfully make for us to review a challenged jury instruction.
138
Mason also contends that "the jury's discretion was not sufficiently guided under Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)." Petitioner's Br. at 137. Gregg, however, simply recommended that juries in death penalty cases be "apprised of the information relevant to the imposition of [the death] sentence and provided with standards to guide its use of the information." Gregg, 428 U.S. at 195, 96 S.Ct. 2909. The trial court provided such guidance in this case; it instructed the jury of its duty to weigh aggravating circumstances against mitigating factors, the latter "including, but not limited to, the nature and circumstances of the offense and the history, character, and background of the Defendant, and any other factors that are relevant to the issue of whether the Defendant should be sentenced to death." J.A. at 1288. We agree with the Ohio Supreme Court that "the instructions, considered as a whole, adequately guided the jury and did not restrict its consideration of mitigating evidence." Mason, 694 N.E.2d at 953. We therefore deny habeas relief with respect to this claim.
2. Failure to Instruct on Residual Doubt
139
Mason argues that he was denied due process by the trial court's refusal to give a proposed instruction on residual doubt. In Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), a majority of the Supreme Court agreed that capital defendants do not have a constitutional right to demand jury consideration of residual doubt during the sentencing phase. Id. at 173 & n. 6, 108 S.Ct. 2320 (plurality opinion); id. at 187-88, 108 S.Ct. 2320 (O'Connor, J., concurring in the judgment); see also Penry v. Lynaugh, 492 U.S. 302, 320, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Because Supreme Court precedent clearly establishes that Mason cannot support his residual doubt argument, we deny habeas relief with respect to this claim.
140
3. Failure to Remove the Death Sentence from the Jury
141
In Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the Supreme Court held that the trial court did not err in giving a supplemental instruction to a deadlocked jury. Id. at 501, 17 S.Ct. 154. The constitutionality of an Allen charge, sometimes referred to as a "dynamite" charge, turns on whether the charge in question was "coercive." Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).20 An Allen charge must be reviewed "in its context and under all the circumstances." Id. at 237, 108 S.Ct. 546 (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965) (per curiam)). Mason argues that the trial court's supplemental instruction to the jury during its deliberations at the penalty phase of the trial was an improper Allen charge.
142
The trial court gave the following preliminary instruction to the jury:
143
You shall recommend the sentence of death if you unanimously, all twelve jurors, find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors.
144
If you do not so find, you shall unanimously, all twelve, recommend either a life sentence with parole eligibility after serving twenty years of imprisonment or a life sentence with parole eligibility after serving thirty years of imprisonment.
145
J.A. at 1290. The trial court then read the three verdict forms that the jury would consider, with the express instruction that the jury not attach significance to the order in which the forms were read. The first verdict form recommended a death sentence, the second recommended a life sentence with parole eligibility after twenty years, and the third recommended a life sentence with parole eligibility after thirty years. The jury began its deliberation in the penalty phase of the trial at 3:50 p.m. on Monday, June 27, 1994, and broke for the evening at 5:05 p.m. The jury returned to the courthouse to continue deliberations at 8:45 a.m. on Tuesday, June 28, 1994. After a lunch break from 12:00 noon to 1:30 p.m., the jury informed the trial court that it was "unable to reach a unanimous decision on any one of the sentencing options." J.A. at 1311. After giving the jury a standard Allen charge, the trial court engaged in the following colloquy with the jury foreman:
146
The Court: Is there a possibility, Mr. McGuire, that after an additional period of time you may reach an agreement? And this instruction that I have given you, and considering that with the rest of the instructions? Mr. McGuire: No.
147
The Court: Would you wish to return to the jury room and discuss it, this instruction, with the jurors and then return and respond to that question?
148
Mr. McGuire: Yes.
149
The Court: Take the jury, please.
150
J.A. at 1313-14. Defense counsel objected to the supplemental instruction. The jury continued to deliberate until 5:15 p.m., when it broke for the evening. The jury returned to its deliberations at 8:35 a.m. on Wednesday, June 29, 1994. After fifteen minutes, the jury returned a unanimous recommendation that Mason be sentenced to death. The trial court then polled the jury, and each juror indicated agreement with that sentence.
151
Mason argues that the trial court's Allen charge forced a deadlocked jury to continue deliberation, in violation of his constitutional rights and contrary to Ohio law. The State of Ohio claims that the Allen charge was not unduly coercive. Furthermore, it contends that Ohio law did not preclude the supplemental instruction and that any violation of state law could not properly be raised in a habeas petition.
152
In evaluating the Allen charge, the Ohio Supreme Court first turned to State v. Springer, 63 Ohio St.3d 167, 586 N.E.2d 96 (1992), which requires a trial court to impose an appropriate life sentence in the event of an "irreconcilably deadlocked" jury. Id. at 100. The state supreme court explained:
153
No exact line can be drawn as to how long a jury must deliberate in the penalty phase before a trial court should instruct the jury to limit itself to the life sentence options or take the case away from the jury, as done in Springer. Each case must be decided based upon the particular circumstances. Here, after only four and one-half hours of deliberations, the trial court acted appropriately by giving a modified Howard charge [itself a modified Allen charge]. The circumstances show that the jury was not irreconcilably deadlocked, and the modified Howard charge did not coerce a death verdict.
154
Mason, 694 N.E.2d at 955.21 The Ohio Supreme Court then reiterated its approval of "using supplemental instructions urging jurors to continue deliberations to try to reach a unanimous penalty verdict" and specifically stated that such instructions in a death penalty case would not violate due process. Id. (citing Lowenfield). Noting that Lowenfield "expressly approved the use of Allen charges in capital cases," the district court concluded that the trial court did not err in giving "a single Allen charge." Mason, 95 F.Supp.2d at 772.
155
Under AEDPA, the scope of our review is limited to determining whether a state court's decisions are "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). Because violations of state law are not within our purview, we will review Mason's Allen claim only to determine whether the trial court's supplemental instruction was coercive "in its context and under all the circumstances." Jenkins, 380 U.S. at 446, 85 S.Ct. 1059. We hold that the Allen charge was not so coercive as to deny Mason his due process rights.
156
As a preliminary matter, we agree with the Ohio Supreme Court that the jury was not "irreconcilably deadlocked." Mason, 694 N.E.2d at 955. The jurors in this case simply stated that they were "unable to reach a unanimous decision on any one of the sentencing options," J.A. at 1311, and the trial court then gave the Allen charge. Although the foreperson initially dismissed the possibility of a unanimous agreement, we note that his subsequent discussion of the supplemental instruction with the jury was followed by almost four more hours of jury deliberation instead of his return to the trial court with a confirmation of the jury's inability to reach a unanimous decision. This fact persuades us that the trial court did not err in giving an Allen charge.
157
We also believe that the jury was not coerced into returning a unanimous death sentence. First, the trial court's instructions did not require the jury to reject the death penalty unanimously before considering the life sentences. Indeed, the content of the jury's note — which indicated lack of unanimity "on any one of the sentencing options," J.A. at 1311 — strongly suggests that the jury discussed the three possible verdicts at the same time. Moreover, the trial court did not instruct the jury to continue deliberations, but to discuss whether it could do so. Finally, the jury deliberated for more than three hours after the trial court gave the Allen charge. The Lowenfield jury deliberated for only thirty more minutes. Given these circumstances, we conclude that the trial court's supplemental instruction was not impermissibly coercive. We therefore deny habeas relief with respect to this claim.
III. CONCLUSION
158
For the foregoing reasons, we AFFIRM the district court's denial of Mason's petition for a writ of habeas corpus with respect to his conviction but REMAND the case for an evidentiary hearing regarding the claim of ineffective assistance of counsel at sentencing and for further proceedings consistent with this opinion.
Notes:
1
Another witness testified to seeing a person who fit Mason's description walking in the general area at that time
2
Type-B blood was later found on the side of a tennis shoe that Mason was wearing on February 12, 1993
3
On December 21, 1993, Mason was reindicted on the same charges, but with a firearm specification added to each of the three counts
4
The State of Ohio contends that various sub-parts of Mason's ineffective assistance claim were not raised on direct appeal and thus were procedurally defaulted. Respondent's Br. at 25. Mason replies that he raised these issues to the Ohio Supreme Court in his brief. Final Reply Br. at 12;see also J.A. at 1517-18 (continuance), 1597 (expert assistance), 1598 (suppression motion), 1599 (jury selection). The problem arises because Mason filed his petition for post-conviction relief while his direct appeal was pending. Because the trial court found Mason's ineffective assistance claims to be barred by res judicata before the Ohio courts had decided his direct appeal, and because the Ohio Supreme Court eventually addressed the merits of Mason's ineffective assistance claims, we do not find procedural default and will review whether the state courts' adjudication was contrary to or involved an unreasonable application of Strickland and its progeny.
5
As Mason notes, defense counsel did not inquire about Mason's involvement in saving a fellow inmate from attempted suicide
6
Judge Boggs suggests that Mason does not meet the requirements for an evidentiary hearing as laid out in 28 U.S.C. § 2254(e)(2). Although subsection (e)(2)'s conditions are, indeed, onerous, "only a prisoner who has neglected his rights in state court need satisfy these conditions."Michael Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). In determining whether § 2254(e)(2) applies, the question is not whether the petitioner has succeeded in developing the record, but whether the petitioner has diligently attempted to do so. See M. Williams, 529 U.S. at 432, 120 S.Ct. 1479 ("[A] failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel."). Mason here has been sufficiently diligent; as the Supreme Court explained, "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437, 120 S.Ct. 1479. Mason requested (and was denied) a hearing in state court and has actively sought to expand the record. We see no lack of diligence, so we do not apply § 2254(e)(2).
7
The trial court later authorized independent laboratory testing on a sample of the fetus that Robin was carrying at the time of her murder and independent blood testing of the blood found on Mason's shoe. J.A. at 1955
8
Lead counsel acknowledged less than a week before the trial began "that he had not personally interviewed any of the witnesses for either phase of the trial." J.A. at 1848, 1849 (Head Aff. at ¶¶ 6, 9). Moreover, counsel apparently never studied Mason's "psychological or environmental history" and failed to prepare the "social history" that would have humanized Mason before the jury. J.A. at 1856 (Schumacher Aff. at ¶¶ 24C, 24E)
9
Although the trial court ordered the retention of these exhibits as part of the record, the exhibits are not in the record before us
10
This fact distinguishes this case fromMartin v. Mitchell, 280 F.3d 594, 2002 WL 197963 (6th Cir.2002), where we recently denied habeas relief on a similar claim because the petitioner had not shown what potential mitigating witnesses "would have testified to, or how such testimony could have aided him at sentencing." Id. at *11; cf. Buell v. Mitchell, 274 F.3d 337, 361 (6th Cir.2001). The testimony in this case concerned Mason's troubled childhood, as described below, which would have aided him at sentencing because it did not give the prosecutor the same opportunity for rebuttal that evidence about good character or rehabilitation potential could have.
11
Affidavits were submitted by (1) James Frederick Crates ("Crates"), a mitigation specialist who was retained by post-conviction counsel and who interviewed Mason's mother before her death, (2) Dr. Jeffrey L. Smalldon ("Smalldon"), a psychologist, (3) Mason's father, and (4) Mason's sister
12
Contrary to the dissent's analysis, the problem here is not that defense counsel had no knowledge of Mason's background, but that, after receiving a limited amount of that information in materials provided by the prosecution, defense counsel may not have adequately investigated the matter further themselves. Our concern is that the limited information obtained by defense counsel did notdischarge counsel's duty to investigate, but triggered the duty to investigate.
13
We find inexplicable the apparent failure of trial counsel to investigate mitigating evidence in this case. Four months before trial, the trial court heard oral argument on defense counsel's request for various experts, including "a mitigation expert team of Psychologist, Social Worker, and Mitigation Expert." Tr. at 412. Defense counsel called Dale A. Baich ("Baich"), then an assistant public defender for the State of Ohio, to testify about a defendant's need for mitigation experts. Baich described the mitigation expert's responsibilities as follows:
One significant role of the mitigation expert is to interview Mr. Mason about his background and then go out to interview family members, friends, acquaintances. In addition, it's important for the mitigation expert to gather records that may be existing related to Mr. Mason. I have no idea about Mr. Mason's background, but there may be some governmental records related to him that would be helpful to the defense. His school records and work records may be important for the mitigation phase.
So in a sense, the mitigation expert is the one that goes out and conducts a complete family and personal background investigation on the accused.
Tr. at 421. Trial counsel understood that relying on the documents produced by the prosecution was inadequate, because interviews still had to be taken of Mason and the "significant others in his life," and the prosecution could have missed some records. Tr. at 423-25. The prosecutor argued that defense counsel had been provided with all available records and that Mason was fully able to assist in his defense. Tr. at 442-43, 446. Given defense counsel's understanding of the need for further investigation, we strongly believe that counsel may have afforded Mason ineffective assistance by unreasonably deciding not to investigate. We leave it to the district court in the first instance to determine after holding an evidentiary hearing whether the performance of defense counsel in this case failed to meet the constitutional minimum.
14
Mason also indicated that he had to leave in order to pay a utility bill
15
Mason notes that Potts drove him from his home to the Sheriff's Office in an unmarked police car with doors that could not be unlocked by passengers
16
Alternate juror Mary Beckholt testified to jurors' comments during the trial that "all black people did was drink and party and do beer runs." J.A. at 1384
17
Mason apparently wears a "dew rag" or bandana on a daily basis. J.A. at 773. Juror Kathy Haney testified that a juror made "racist remarks and [talked] in a jive manner" about "dew rags," as well as ridiculed Mason's speech. J.A. at 1412-13. Juror Jason Mahaffey ("Mahaffey") testified that the same juror had "said he had to go get his dew rag, cause he doesn't have a hat; he just has a dew rag." J.A. at 1407-08. However, Mahaffey did not characterize the comment as "racial." J.A. at 1407
18
The prosecutor and defense counsel obtained these affidavits without consulting the trial court. The joint appendix contains the affidavits of ten jurors who denied participating in or observing any racism
19
UnderBuchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the standard for reviewing jury instructions from the selection phase of a capital sentencing process is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Id. at 276, 118 S.Ct. 757 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). The Supreme Court has thus held that the Eighth and Fourteenth Amendments do not require a trial court to give a specific instruction on mitigating evidence, much less define what it means. Id. at 277, 118 S.Ct. 757 (holding that a jury instruction to base the decision on "all the evidence" was constitutionally sufficient because it "afforded jurors an opportunity to consider mitigating evidence"). The only constitutional requirement is that the instructions do not preclude a capital jury from considering mitigating evidence. Id. at 276, 118 S.Ct. 757; see also Weeks v. Angelone, 528 U.S. 225, 232, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
We note that the instruction challenged in this case complied with the Buchanan mandate that a trial court should not restrict a jury's consideration of mitigating evidence. However, Buchanan is not controlling because it was decided three and a half years after Mason's conviction, and, under AEDPA, Supreme Court precedent must be in existence prior to a conviction to control a habeas court's analysis. See Williams, 260 F.3d at 703.
20
InLowenfield, the jury requested additional instructions after it became unable to reach a decision on the second day of deliberations. 484 U.S. at 234, 108 S.Ct. 546. The trial court then asked the individual jurors to answer in writing whether "further deliberations would be helpful in obtaining a verdict." Id. Eight jurors responded in the affirmative. Id. After denying a defense motion for a mistrial, the trial court directed the jury to return to the courtroom for further instructions. Id. At this time, the jury gave the trial court a new note that stated that some of the jurors had misunderstood his original question. Id. The trial court polled the individual jurors again, but asked whether they felt that "any further deliberations will enable you to arrive at a verdict?" Id. Eleven jurors responded in the affirmative. Id. at 235, 108 S.Ct. 546. The trial court then gave the jury an Allen charge. Id. Thirty minutes later, the jury returned a sentence of death. Id. The Supreme Court held that the polling of the jury and the supplemental instruction were not coercive as to violate the petitioner's constitutional rights. Id. at 241, 108 S.Ct. 546.
21
InState v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989), the Ohio Supreme Court strongly criticized the "traditional" Allen charge for placing such emphasis on the jury's reaching a decision. Id. at 192. According to the Howard court, a traditional Allen charge essentially pressures dissenting jurors to change their minds and thus "subtly changes the requirement that the jury verdict be unanimous to one more closely resembling majority rule." Id. The Ohio Supreme Court thus proposed a supplemental instruction that it believed would result in the "even-handed treatment of all jurors." Id. at 194. Much of the supplemental instruction in this case follows the proposed Howard charge verbatim. Indeed, the trial court scrupulously maintained its neutrality by addressing the jurors as "jurors," J.A. at 1313, rather than distinguishing between "[j]urors for acquittal" and "jurors for conviction," as the Howard court had done. Howard, 537 N.E.2d at 195.
159
BOGGS, Circuit Judge, dissenting in part.
160
I largely agree with the court's analysis of Mason's arguments in this case. I cannot agree, however, with the court's decision to remand this action to the district court for an evidentiary hearing on the adequacy of Mason's counsel's investigation and presentation of evidence in mitigation during the sentencing phase of Mason's trial. The court's action both ignores the clear Supreme Court precedent establishing the standards for evaluating the constitutionally required effectiveness of defense counsel and contravenes the statutory limitations on our review of state convictions through habeas corpus proceedings. Accordingly, I respectfully dissent from the court's decision to reverse the district court's denial of Mason's petition for a writ of habeas corpus and to remand for an evidentiary hearing on further mitigatory evidence that defense counsel could have offered.
161
This court has reversed capital sentences for failure to present or to investigate mitigatory evidence on no fewer than seven occasions. See, e.g., Coleman v. Mitchell, 268 F.3d 417, 438 (6th Cir.2001); Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001); Cone v. Bell, 243 F.3d 961 (6th Cir.2001), rev'd, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Skaggs v. Parker, 235 F.3d 261 (6th Cir.2001); Rickman v. Bell, 131 F.3d 1150 (6th Cir.1997); Austin v. Bell, 126 F.3d 843 (6th Cir.1997); Glenn v. Tate, 71 F.3d 1204 (6th Cir.1995). The Supreme Court, in the course of reversing one such decision of this court, has made abundantly clear the extremely high standard that must be met for counsel's representation in the penalty phase to be considered constitutionally inadequate. The Supreme Court in Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), reversed one iteration of this court's finding of inadequacy of counsel during the penalty phase. In our Cone decision, this court observed that counsel's presentation was not only poor, but a complete abdication of the defense attorney's role: "It is indisputable that Cone's trial attorney presented no mitigating evidence at all and made no final argument; he did not even ask the jury to spare his client's life." Cone v. Bell, 243 F.3d 961, 978 (6th Cir.2001) (Ryan, J.). In Cone, defense counsel failed to call a single witness to present mitigatory evidence and offered no closing statement, although defense counsel did briefly cross-examine some of the state's witnesses. Cone, 122 S.Ct. at 1848. Nevertheless, the Supreme Court, with only one dissent, held that defense counsel's representation during the penalty phase was not unconstitutionally inadequate under its standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
162
Determining the best tactic for a penalty-phase presentation is extremely difficult in the wake of a jury's finding the defendant guilty of a horribly brutal act, according to the Court. Cone, 122 S.Ct. at 1852. This court's determination that a defense counsel's failure to present any affirmative case for mitigation in the penalty phase was unconstitutional ineffective representation failed to indulge the "`strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that the particular act or omission of counsel was unreasonable in the harsh light of hindsight." Id. at 1854. See also Strickland, 466 U.S. at 669, 104 S.Ct. 2052.
163
In this case, defense counsel presented a significantly more robust mitigatory case than the counsel in Cone. Defense counsel called two members of the sheriff's department to comment on Mason's good behavior as a prisoner. Counsel also called Mason's mother, his two brothers, his cousin, and finally his wife to testify regarding how meaningful Mason had been in their lives and to ask the jury to spare the defendant's life. Finally, Mason himself testified about the artwork and poetry he had composed in prison. Unlike defense counsel in Cone, Mason's counsel delivered an extensive closing statement.
164
Defense counsel's presentation in the penalty phase is not the principal thrust of the court's concern regarding the adequacy of Mason's representation. Instead, the court contends that defense counsel did not sufficiently investigate Mason's "history, character, or background." According to the court, any investigation would have revealed Mason's traumatic childhood, his living with parents who were drug dealers and users, the regular beatings that he received from his father, and the resulting drug addiction that Mason himself developed from the age of eleven. The court suggests that counsel's failure to present this tale of woe to the jury was not the result of a strategic choice in the heat of litigation, but a lack of knowledge regarding Mason's background. The court argues that, "[h]ad trial counsel conducted an adequate investigation, the jury would have heard substantial evidence about how drug use and violence pervaded Mason's background and life history." Slip op. at 622. (emphasis added). Indeed, the court notes Mason's post-conviction testimony that he did not recall defense counsel ever interviewing him regarding his background, much less that of any of his family members. Slip op. at 621-622.
165
The existing record in this case contradicts the court's finding that defense counsel had no knowledge of these particularly tragic features of Mason's background. As the court indicated, defense counsel was provided with the services of Dr. Robert T. Spare, a psychologist who examined the defendant to determine, among other things, his future dangerousness. Spare also took an relatively extensive oral history from Mason. Under deposition questioning by defense counsel, Spare recounted essentially all of the facts that, according to this court, were not discovered by defense counsel.1 Spare testified that Mason told him that his family life was "rather unusual," with his parents involved in "drug related activities as long as he could remember." See Videotape Deposition of Dr. Robert T. Spare at 5:57 P.M. According to Spare, Mason began extensive involvement in his parents' drug business in "the middle elementary grades" and started using drugs regularly "about the same time." Id. at 5:58 P.M. Spare also testified that Mason said that he had been regularly beaten by his father. Ibid.
166
Spare further testified as to several "exhibits offered for mitigation purposes" that he had reviewed in the course of his treatment of Mason. These exhibits were in the record of the deposition and included several reports from social services agencies that included extensive records of domestic and child abuse in Mason's home and the drug-seeking activities of Mason's parents. The defendant was present during the deposition, id. at 5:51 P.M., and thus would have been able to advise his attorney of any additional material that might have been relevant. In any event, the deposition shows that Dr. Spare was aware of, and fully related to counsel, the gist of the material on Mason's background as to which the court now appears to be uncertain.
167
In short, Spare's deposition explicitly covers all of the information to which defense counsel was allegedly not exposed due to shoddy investigation into mitigating evidence. Accordingly, this case seems indistinguishable from prior cases in which we have denied claims of ineffective assistance based on alleged failure to investigate mitigating evidence. Specifically, the defendant has identified no evidence of which defense counsel was not already aware at the time of the penalty phase proceedings. See Buell v. Mitchell, 274 F.3d 337, 361 (6th Cir.2001).
168
The relevant question is the one that this court declines today to answer, whether defense counsel's decision not to present certain evidence of the drug-related activities of Mason's parents, of Mason's long history of drug use, and of the physical abuse to which Mason was subjected, was a reasonable strategic choice of counsel or was within the wide range of decisions that constitute constitutionally effective representation.
169
I believe that counsel's decision not to present evidence of Mason's childhood was reasonable or that, at the very least, the Ohio Supreme Court's denial of Mason's claim was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), as it must be for this court to overturn its decision. See 28 U.S.C. § 2254(d)(1). The court assumes that any defense counsel who would not have presented the details of Mason's past to the jury would have been either indifferent to his client's fate or incompetent. As the court states: "Had trial counsel conducted an adequate investigation, the jury would have heard substantial evidence about how drug use and violence pervaded Mason's background and life history." Slip op. at 622.
170
To me, the record is clear that defense counsel not only was aware of Mason's background, but also made a reasonable strategic decision not to present evidence of Mason's background to the jury. Defense counsel's decision addresses the fundamental dilemma for penalty-phase presentations. To some, recounting a childhood filled with drug use and crime would arouse sympathy and provide an explanation for otherwise heinously violent crimes, but to others it would tell a story of waste, lifelong moral turpitude, and incorrigibility. The omitted evidence here is far less mitigating than the relevant evidence in Bell v. Cone, that the defendant had been traumatized during honorable military service to his country, the omission of which the Supreme Court determined not to be unconstitutionally ineffective assistance. The evidence omitted here is potentially aggravating in the minds of some jurors, and its probable effect is a judgment call for counsel in the context of his understanding of the jury's composition. Defense counsel's choice to omit Mason's background, and it was a choice, is a quintessential strategic decision that cannot form the basis of a Strickland challenge.
171
This court also flatly suggests that this particular evidence, of Mason's troubled childhood and early drug use, would not have permitted the prosecution to introduce rebuttal evidence regarding Mason's extensive, violent, and contemporaneous history of criminal activity. The court's claim here is nothing more than an assertion: "Testimony that simply put Mason's childhood into context without misinterpreting it would not have been the subject to the prosecutor's rebuttal evidence, which mostly concerned Mason's character." Slip op. at 627. The court's cursory opinion of Ohio evidence law narrowly construes the trial court's explicit ruling on this matter. See Tr. at 4211. The trial court indicated that extremely damaging evidence could have been introduced "had the Defense elected to proceed with a more expansive mitigation strategy." JA at 1761. Mason concedes that "[t]he trial court ruled that such evidence," referring to evidence of Mason's past criminal behavior, "would be admissible." Mason's Br. at 13. Defense counsel undoubtedly could have presented the evidence notwithstanding the trial court's determination, inviting the introduction of Mason's prior criminal record by the prosecution, and appealed a district court decision to admit Mason's negative history as rebuttal evidence. Yet we have never held that defense counsel is constitutionally obligated to take such a risk, especially when the trial court's ruling is far from clearly the abuse of discretion that would be required to overturn its evidentiary determination.
172
Indeed, the trial court's ruling makes ample sense. By raising the factual question of his background and prior activities, the defendant makes his entire background relevant. After all, the mitigation case with this evidence would have been that Mason was a victim of his parents' violence and drug activities and that this sorrowful childhood led an otherwise innocent boy into personal drug use and ultimately to commit a horribly violent crime. The evidence of his criminal record would have been directly relevant to rebut this story, showing a young man, far from innocent, who has engaged in a consistent campaign of violent crime, including a rape eerily similar to that for which he had just been convicted.
173
Finally, given the infirmity of this court's determination regarding defense counsel's potential ineffectiveness, there is even less legal foundation for its decision to remand this case for an evidentiary hearing on his ineffectiveness claim. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") explicitly limits the circumstances under which an evidentiary hearing may be granted in habeas proceedings. See 28 U.S.C. § 2254(e)(2). If Mason failed to develop a sufficient "factual basis of a claim in State court proceedings," this court must dismiss the claim and cannot order an evidentiary hearing unless the claim relies on a "new rule of constitutional law made retroactively applicable to cases on collateral review by the Supreme Court, that was previously unavailable; or a factual predicate that could not have been previously discovered through the exercise of due diligence." 28 U.S.C. § 2254(e)(2). Neither of these conditions obtain in this case. This court makes clear that Mason raised these arguments in Ohio state courts. Mason also had an opportunity to introduce extensive evidence, of which he somewhat availed himself, regarding what defense counsel could have done. Any factual deficiency in Mason's claim that prevents us from accepting it may not be cured by a federal court in habeas proceedings when there is no evidence in the record that Ohio courts prevented Mason from making a sufficient factual record. This court's current remedy of ordering an evidentiary hearing is invalid under Section 2254(e)(2) of AEDPA.
174
Ironically, if counsel's true aim is to see that his client's life is spared, the most effective tactic under cases such as the one today is to omit some step so that our court will later find counsel was not "effective." Creative habeas counsel can conjure up myriad possible scenarios in which a claim can now be made that some information would surely have convinced a jury to spare the life of a heinous murderer, without having to face the actual consequence that such information could easily have been ineffective, or worse. In fact, if trial counsel were to use the "kitchen sink" approach seemingly advanced by respondent's counsel, and introduce every scrap of information now claimed to be helpful (including his becoming "certified in Heating and Air Conditioning," see Mason's Br. at 72 n.28), one could probably find that approach "ineffective" for depriving the defendant of the argument that has proven, in this circuit at least, to be the most efficacious in achieving defendant's goal of continued life.
175
The fact that a trial strategy did not work does not make the ex ante decision to employ it, under circumstances where hardly any trial strategies would seem attractive, constitutionally defective lawyering. Given the Supreme Court's admonishments against using the penalty phase and the Sixth Amendment as a lever in death penalty cases, and the sound strategic reasons for the omission of Mason's background by his counsel, I respectfully dissent.
Notes:
1
The deposition was conducted during the guilt phase of the trial in anticipation of Dr. Spare's potential absence for a possible penalty phase. The actual video tape of the deposition of Dr. Spare is in our record, as record entry 43 in the district court, referenced as Appendix Vol. 14 to the return of writ by the respondent, record entry 29. The volume number appears to be that assigned in the state trial court
|
651 So.2d 1085 (1994)
Horace JOHNSON
v.
STATE.
CR-93-295.
Court of Criminal Appeals of Alabama.
May 27, 1994.
Rehearing Denied July 8, 1994.
Certiorari Denied December 22, 1994.
Gary Blume, Tuscaloosa, for appellant.
James H. Evans, Atty. Gen., and Cedric Colvin, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1931423.
TAYLOR, Judge.
The appellant, Horace Johnson, was indicted for the attempted murders of Daryl Anders and Ruby Lavender. A jury found the appellant guilty of assault in the second degree as to Daryl Anders, § 13A-6-21, Code of Alabama 1975, and of menacing as to Ruby Lavender, § 13A-6-23, Code of Alabama 1975. He was sentenced to 10 years' and 6 months' imprisonment, which sentence was split, and he was ordered to serve one year and a day in prison and two years on supervised probation.
The state's evidence tended to show that on December 21, 1991, the appellant went to the residence of Ruby Lavender looking for his ex-wife, Sabrina Jones, Mrs. Lavender's *1086 granddaughter. Upon the appellant's arrival, an argument began between the appellant and his ex-wife in the driveway of the house. Mrs. Lavender went outside to check on her granddaughter just as Sabrina ran inside to get away from the appellant. The appellant went to his car and got a shotgun. When he got to the door of the house, he began kicking and hitting the door. Mrs. Lavender told the appellant to stop kicking the door and not to shoot the gun because his children were in the house. Mrs. Lavender testified that the appellant pointed the shotgun at her and told her "I'll kill you." Mrs. Lavender fell to the ground. She testified that the appellant shot his gun several times over her body. She thought he was trying to kill her because she "could feel the heat of the gun" as the appellant fired the gun.
Daryl Anders was at Lavender's residence when the shooting occurred and attempted to call the police. He went outside to get the address of Lavender's house so that he could give it to the police. While he was outside, the appellant approached him, pointing the shotgun at him. Anders grabbed the barrel of the shotgun in an attempt to push the muzzle away from his body. The defendant fired the gun, hitting Anders's thumb. As a result of the wound, Anders's thumb was later amputated at the hospital.
The appellant then entered the house in search of his ex-wife. He left the residence after his ex-wife fired at him several times with a .38 caliber pistol.
I
The appellant first contends that the trial court erred in denying his motion for a judgment of acquittal because, he says, the evidence was insufficient to support his convictions for assault in the second degree and menacing.
Assault in the second degree is defined in § 13A-6-21, Code of Alabama 1975, as follows:
"(a) A person commits the crime of assault in the second degree if:
"(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person; or
"(2) With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument; or
"(3) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument...."
Menacing is defined in § 13A-6-23, Code of Alabama 1975, as follows:
"(a) A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury...."
In reviewing a question of the sufficiency of the evidence, this court must view the evidence in the light most favorable to the state. Hawkins v. State, 615 So.2d 651 (Ala.Cr.App.1992).
The jury found the appellant guilty of menacing as to Ruby Lavender. Her testimony as set out above established a prima facie case of menacing.
The jury also found the appellant guilty of assaulting Daryl Anders. When the jury found the appellant guilty of assault in the second degree, it did not specify which subsection § 13A-6-21 it was relying on in returning that verdict. The appellant maintains that the state failed to prove that he had intended to shoot or to cause any injury to Daryl Anders. However, the appellant's mental state at the time of the assault was a question for the jury to decide. White v. State, 527 So.2d 1349 (Ala.Cr.App.1988). The appellant's argument misses its mark, because second degree assault, as defined in § 13A-6-21, can be accomplished by either intentional or reckless actions. Jenkins v. State, 640 So.2d 1055 (Ala.Cr.App.1993). Any conflicts in the evidence were for the jury to reconcile. Hawkins v. State, 615 So.2d 651 (Ala.Cr.App.1992). The facts as deduced from the evidence recited above establish a prima facie case of assault in the second degree.
*1087 The trial court did not err in denying the appellant's motion for a judgment of acquittal.
II
The appellant next contends that the trial court erred in denying his challenges for cause of three members of the venire who initially expressed the belief that the appellant had something to hide if he did not testify at trial. The record reveals that during voir dire, defense counsel asked, "If a person who was accused of something did not take the stand, is there anybody who would think that person had something to hide?" Five jurors indicated that they believed a person who did not take the witness stand had something to hide. The court then explained to these five potential jurors the state's burden of proof, the appellant's presumption of innocence, and a defendant's right not to testify against himself. After the court's explanation, two of the five prospective jurors again expressed the view that the appellant's failure to testify would affect their decision. The court granted the appellant's challenges for cause as to these two prospective jurors. The court denied the appellant's challenges for cause as to the remaining three jurors because they indicated that they could decide the case based solely on the law and evidence.
"A trial judge's finding on whether or not a particular juror is biased `is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province.' [Wainwright v.] Witt, 469 U.S. [412, 428], 105 S.Ct. [844], 855, [83 L.Ed.2d 841 (1985)].
"That finding must be accorded proper deference on appeal. Id. `A trial court's rulings on challenges for cause based on bias [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion.' Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981)."
Martin v. State, 548 So.2d 488, 490 (Ala.Cr. App.1988), aff'd, 548 So.2d 496 (Ala.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989).
"The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence." Rowell v. State, 570 So.2d 848, 855 (Ala.Crim.App. 1990). "[A] prospective juror should not be disqualified for prejudices or biases if it appears from his or her answers and demeanor that the influence of those prejudices can be eliminated and a verdict rendered according to the evidence." Knop v. McCain, 561 So.2d 229, 232 (Ala.1989).
Here, the prospective jurors were questioned thoroughly on this issue. The three prospective jurors who were not removed for cause indicated that they could render a verdict based on the facts and on the law as instructed. Thus, it was not error for the trial court to deny the appellant's challenges for cause of the three jurors.
For the foregoing reasons, the judgment in this cause is due to be affirmed.
AFFIRMED.
All the Judges concur.
|
129 S.W.3d 116 (2004)
Kevin B. SAUCEDA, Appellant,
v.
The STATE of Texas.
No. 612-02.
Court of Criminal Appeals of Texas, En Banc.
March 10, 2004.
Shawna L. Reagin, Houston, for Appellant.
Carmen Castillo Mitchell, Asst. DA, Houston, Matthew Paul, State's Attorney, Austin, for State.
Before the Court en banc.
OPINION
MEYERS, J., delivered the opinion of the Court, in which PRICE, JOHNSON, HOLCOMB, and COCHRAN, JJ., joined.
Our former opinion is withdrawn and this opinion is substituted. Appellant Kevin *117 B. Sauceda was tried by a jury, and convicted of aggravated sexual assault of a child. Tex. Penal Code § 22.021. At trial, the defense attempted to introduce the testimony of a CPS caseworker who interviewed the victim about the incident. The State argued that if such testimony were allowed, the State would be entitled to introduce, in its entirety, a videotape of the interview. Although the videotape contained numerous references to uncharged offenses, the trial court ruled that the State could introduce the entire tape into evidence if the caseworker testified, under the rule of optional completeness. Tex.R. Evid. 107. Defense counsel did not call the caseworker to testify. Appellant was convicted and sentenced to forty years imprisonment.
In an unpublished opinion, the Court of Appeals upheld the trial court's ruling. Sauceda v. State, No. 14-01-00408-CR, 2002 WL 977152, 2002 Tex.App. LEXIS 1526 (Houston, [14th Dist.] February 28, 2002)(not designated for publication). We granted review to determine whether the Court of Appeals erred by upholding the trial court ruling that simply asking a question for impeachment purposes rendered an entire videotaped interview of extraneous offenses admissible under the rule of optional completeness. We hold that the Court of Appeals' ruling was error, and we will reverse.
Facts:
In September of 1998,[1] appellant was shot in the head, leaving him in a coma for 21 days. On his release from the hospital, he went to live in Houston with his mother, who at the time was also caring for three of appellant's nieces, M.S. (9 years old), B.S. (8 years old), and C.S. (12 years old). Although he eventually recovered sufficient motor control to walk with the assistance of a walker, at the time of the charged incidents (May and June of 1999), appellant was confined to a wheelchair, and needed assistance with basic functions such as feeding himself.
Over the Fourth of July weekend, 1999, appellant's sisters took appellant and his nieces to Baytown,[2] Texas for a family reunion. Returning late from the reunion, appellant's sisters decided to stay at a motel in Baytown, rather than driving back to Houston that night. They put appellant in a room by himself on the first floor, and took two adjoining rooms for themselves and the nieces on the second floor of the motel.
Before retiring, appellant asked whether one of his nieces could spend the night in his room with him. Appellant's sisters were alarmed by the request, and he was told that none of his nieces would stay with him. After returning to their room, appellant's sisters discussed appellant's request, and concluded that it indicated something amiss. They repeatedly questioned all three nieces. After initial denials, each niece stated that appellant had sexually assaulted her.
Upon returning to Houston the next day, appellant's sisters called the police. On July 7th, 1999, CPS caseworker Fiona Stephenson interviewed M.S. at the Children's Assessment Center. The interview was videotaped, and the statement given *118 by M.S. indicated that she had been sexually assaulted by appellant. Numerous references to alleged assaults on C.S. and B.S. were also recorded during the interview. Appellant was arrested on July 19th, 1999, and indicted for aggravated sexual assault of a child. Although he was originally indicted for offenses against all three of his nieces, the State decided to proceed against appellant on the offenses against M.S. only.
In March of 2000, appellant was found incompetent to stand trial, apparently because of the impairment he still suffered from the 1999 gunshot wound. In April 2000, he was found to be competent, and the case proceeded to trial in February 2001. At trial, M.S. took the stand and testified to two incidents of sexual assault by appellant. M.S. testified that during the first incident, which occurred in May of 1999, appellant called her into his room, and told her to take off her clothes. When she refused, he got into his wheelchair, went over to a dresser, took out a butcher knife, and threatened her with it. At that time, she complied with his demand, and he sexually assaulted her.
The second incident M.S. testified to occurred about a week before the family reunion. M.S. testified that appellant again called her into his room, where he was lying in bed. He told her to get into bed with him, which she refused to do. He then showed her a gun, which he had under the covers. She got into the bed with him, and he sexually assaulted her again.
On cross-examination, defense counsel asked M.S. who else she had told about the butcher knife and the gun. M.S. initially testified that she did not tell her aunts, but she thought she had told the CPS caseworker who interviewed her. Because appellant believed that the caseworker's testimony would contradict M.S.'s statement, and perhaps undermine her credibility, this portion of M.S.'s testimony was especially significant to the defense. On further examination, M.S. testified that she did tell her aunts about the weapons. However, the aunts did not mention the weapons in their written statements to police, nor in their testimony at trial.
At the close of the State's case-in-chief, outside the presence of the jury, defense counsel indicated that he wished to call Fiona Stephenson, the CPS caseworker. Defense counsel stated that Stephenson would testify that during her interview, M.S. never mentioned the butcher knife or the gun. The State pointed out that there was no time during the interview when M.S. was specifically asked about the weapons. The defense conceded that Stephenson would also testify, if asked, that she did not directly ask M.S. about the weapons. The State argued that if Stephenson was allowed to testify to those matters, the State should be allowed to introduce the entire videotaped interview into evidence under Texas Rule of Evidence 107, the "rule of optional completeness."[3] Defense counsel explained that he was not seeking to introduce the video itself, because the video contained so many references to extraneous offenses (the uncharged assaults on the other two nieces). The following discussion ensued:
*119 STATE: I don't think it's fair either to have him going into what [M.S.] talked about on the videotape and not be allowed to show the videotape.
DEFENSE: I think the reason it's a problem is, Judge, the only way you can show that something is not on the tape, if you're trying to show
THE COURT: Is to show the whole tape.
DEFENSE:Is to show the entire tape. If I get up there and show the jury 30 seconds here, 30 seconds there, the jury is going to be thinking, we know the interview lasted longer than 30 seconds, they are going to be thinking we are hiding something from them.
THE COURT: Of course, that'sthat's kind of the way the rules work. How long is the tape?
DEFENSE: It's about 20 minutes, I believe. Let me look at my notes. It was hard for me to find a minute that it was clear they were talking exclusively about [M.S.] without some reference to we and us.
THE COURT: I mean, that's kind of a hard call, but I don't think it's fair for you to get the impeachment value without risking the rule of optional completeness.
The Court then ruled that the videotape would come in if Stephenson testified about the interview. Defense counsel made a brief statement on the record of what Stephenson would have testified to. The defense made a motion to dismiss, which the court denied, and the jury was brought back in. The defense rested without calling further witnesses or presenting evidence. The jury returned a verdict of guilty, and the judge imposed a sentence of 40 years imprisonment.
On appeal, appellant argued that the trial court erred in ruling that impeachment of M.S. allowed the State to offer evidence of extraneous offenses. Sauceda v. State, No. 14-01-00408-CR, 2002 WL 977152, 2002 Tex.App. LEXIS 1526 (Houston, [14th Dist.] February 28, 2002)(not designated for publication). The Court of Appeals ruled that the trial court had not erred:
The court and all parties agreed playing the entire tape would be necessary to enable the jury to fully understand whether M.S. had lied at trial about appellant's use of a gun and knife. Under these circumstances, we cannot say that the trial court abused it's [sic] discretion in ruling the State would be allowed to play the entire tape if Ms. Stephenson testified.
Id. at *5, at *14. The Court of Appeals affirmed appellant's conviction and sentence.
Arguments of the parties:
Appellant now contends that the Court of Appeals erred by misinterpreting defense counsel's argument against admission of the videotape as agreement that playing the entire tape would be required if any portion of the conversation was discussed by Stephenson. Appellant also points out that the purpose of Rule 107 is to guard against confusion, distortion or false impressions arising from the introduction of part of a writing, tape, conversation, etc., out of context. Patel v. State, 856 S.W.2d 486 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Appellant asserts that the rule applies only after one party has introduced part of a tape, writing, conversation, etc., and not when, as here, the defense did not seek to admit any part of the video. Washington v. State, 856 S.W.2d 184 (Tex.Crim.App.1993). Finally, appellant cites cases holding that the omitted portions must be on the same subject. See, e.g., Reynolds v. State, 856 S.W.2d 547 (Tex.App.-Houston [1st Dist.] 1993, no *120 pet.); Hoppes v. State, 725 S.W.2d 532 (Tex.App.-Houston [1st Dist.] 1987, no pet.).
The State argues first that appellant has failed to preserve the error for appeal, because he never actually called Stephenson to testify, and the tape was never played for the jury. In response to the arguments set forth above, the State counters that Rule 107 allows the State a "right of reply" once defense counsel has "opened the door" by pursuing a subject that would ordinarily be impermissible for the State to raise. Credille v. State, 925 S.W.2d 112, 116 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd); Jones v. State, 963 S.W.2d 177, 182 (Tex.App.-Fort Worth 1998, pet. ref'd). The State contends that if defense counsel had introduced specific questions and answers from M.S.'s statement into evidence in an attempt to impeach her trial testimony, then the State would have been entitled to offer the entire statement. Espinoza v. State, 828 S.W.2d 53 (Tex.App.-Houston [14th Dist.] 1991), aff'd 853 S.W.2d 36 (Tex.Crim.App.1993). Finally, the State reiterates the Court of Appeals' conclusion that defense counsel "agreed" that the only way he could show the jury that something was not on the tape was to show the jury the entire tape.
Standard of Review:
The standard of review for a trial court's ruling under the Rules of Evidence is abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Romero v. State, 800 S.W.2d 539, 543-544 (Tex.Crim.App.1990).
Discussion:
First we will address the State's contention that appellant waived the error by choosing not to call Ms. Stephenson after the court's ruling. The cases cited by the State in support of this proposition were decided in the context of the defendant's choice whether or not to testify. All of these cases hold that a defendant must actually have testified in order to preserve error on a trial court's ruling allowing the State to impeach the defendant with prior convictions. Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); Jackson v. State, 992 S.W.2d 469 (Tex.Crim.App.1999); Caballero v. State, 919 S.W.2d 919, 923 (Tex.App.-Houston [14the Dist.] 1996, pet. ref'd). This is not such a case. In Jackson, this Court explained the difficulties raised by appellate review of cases in which the defendant chose not to testify:
The Court would have been required to engage in the difficult task of speculating about (1) the precise nature of the defendant's testimony, (2) whether the trial court's ruling would have remained the same or would have changed as the case unfolded, (3) whether the government would have sought to impeach the defendant with the prior conviction, (4) whether the accused would have testified in any event, and (5) whether any resulting error in permitting impeachment would have been harmless.
Jackson, 992 S.W.2d at 479. None of these concerns would be applicable in this case, because the State did not seek to introduce the video tape to impeach Ms. Stephenson's proposed testimony, but argued instead that the mere fact of her limited testimony in response to the proffered question would trigger the automatic admission of the video in its entirety. The court ruled in favor of this argument *121 after the State had finished presenting its case, and just before the defense called Ms. Stephenson, the sole defense witness. It was unlikely that the judge would have changed her ruling after this time, as there was little left of the case to "unfold". Finally, unlike the defendant in a criminal case, it was not Ms. Stephenson's choice whether or not to testify. Rather than looking to Luce, Jackson, and Caballero, we believe it is appropriate to address the preservation of error in this instance under Rule 33.1 of the Texas Rules of Appellate Procedure.[4]See also, Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999)("[W]hen the trial court rules against an appellant's request, objection, or motion, further action is generally not required to preserve a complaint for appellate review.") In this case, the requirements of Rule 33.1 have been met, and we therefore hold that appellant has preserved the issue for review.
Turning therefore to the other arguments advanced by the parties, the appellant is correct in asserting that the Court of Appeals took defense counsel's statement regarding the impossibility of admitting only part of the video tape out of context. Reviewing the trial transcript, it is clear that defense counsel was not agreeing that the entire tape should be admitted. His statement, in context, was that he could not introduce any of the videotape, because the references to uncharged offenses were inextricable from the pertinent parts of the interview. Instead, he intended to bring Stephenson, a live witness, to testify to her recollection of one narrow subject area: whether there was any mention of the butcher knife or the gun during the interview.
Turning to the question of whether defense counsel's questioning of Stephenson would "open the door" to admission of the videotape, neither the cases cited by appellant nor those cited by the State are clearly dispositive of the issue.
At first reading, the case cited by appellant appears to be directly applicable to this case. Washington, 856 S.W.2d at 186-87. In Washington, defense counsel sought to impeach one of the State's witnesses by questioning the witness about his statements made during a pre-trial interview with a defense investigator. The interview in question, which the investigator had tape-recorded, contained statements that were inconsistent with the witness' testimony at trial. When defense counsel questioned the witness about the contradictory testimony, the witness admitted to making most of the prior inconsistent statements to the investigator. At no time did the defense request admission of the tape itself, either in whole or in part, nor did the defense attempt call the investigator to testify about the interview. During redirect examination of the witness, *122 the State asked the court to compel production of the tape, over defense objections that the tape was protected work-product. The trial court admitted the entire tape-recording of the interview into evidence. The Court of Appeals held that the tape was properly admitted into evidence under Rule 107. We disagreed with the Court of Appeals:
Although the contents of a tape are subject to the Rule of Optional Completeness, the rule is not implicated until such time as a party attempts to have a portion of it "given in evidence." TEX.R.CRIM. EVID. 107. Then, the adverse party is entitled to introduce into evidence the remaining parts of the "act, declaration, conversation, writing or recorded statement," or any related "act, declaration, conversation, writing or recorded statement" necessary to a full understanding of the evidence. Id. Clearly, the first requirement of Rule 107 is that matter "be given" in evidence. Failing that, there is no justification under the rule for allowing introduction of the entire matter.
Washington, 856 S.W.2d at 186.
In Washington, we held that admission of the tape was error because: 1) no mention of the tape was made during cross examination; 2) defense made no attempt to introduce the tape's contents into evidence; and 3) the witness was available to answer questions about the interview with the investigator. Id. at 186-87.
The situation in this case is similar in some ways to Washington, and distinguishable in others. In both cases the defense made no attempt to introduce the recording itself into evidence. In this case, as in Washington, a live witness was available to testify to matters contained in the recording. However, in this case, unlike in Washington, the existence of the videotape was mentioned frequently during cross-examination. Also, in Washington the witness admitted to the inconsistencies between what he had told the investigator, and what he had testified to on the stand. Here, the defense committed M.S. to her testimony, and then sought to introduce the testimony of another witness to impeach M.S. The prior inconsistent statements in Washington were discrete portions of the interview. Here, the impeachment turned on the absence of a statement, rather than on the existence of any directly contradictory statement.
Finally, and most importantly, the Washington opinion mentions nothing about extraneous offense evidence on the tape recording. The defense objected to the tape's admission on the basis of the work product privilege, but there is nothing to indicate that the information on the tape in that case contained extraneous offense evidence which appellant asserts is contained on the videotape in this case.
The Court of Appeals case cited by the State, apparently contradicting the holding in Washington, involved the admission of a videotaped interview under the rule of optional completeness. Credille, 925 S.W.2d at 116-17. In that case, the defense sought to impeach the credibility of a child complainant by cross-examining the police officer who interviewed the complainant while investigating the case. During the cross-examination, defense counsel inquired about specific statements made by the complainant during the interview. On redirect examination, the State established that the statements came from an interview that had been videotaped, and moved successfully for admission of the entire videotape. The appellant in that case argued that the videotape should not have been admitted because he did not try to admit any portion of the videotape itself *123 into evidence. The Court of Appeals upheld the trial court's admission of the video:
Rule 107, ... in its text, permits the introduction of other types of evidence to clarify the opponent's evidence.... Therefore, because appellant inquired into the videotaped conversation, ... the State was entitled to offer any other evidence that was necessary to make the conversation fully understood.
Id. at 117 (internal citations omitted). While this language implies a broad reading of Rule 107, the situation in Credille was different from the situation here in at least one important respect. The Credille defense pointed to specific statements made by the complainant during the interview which, taken out of context, could indeed have created "the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing." Id. at 116, citing Solano v. State, 728 S.W.2d 428, 430-31 (Tex.App.-San Antonio, 1987, pet. ref'd). In this case, in contrast, there would be little danger of misleading the jury by presentation of statements taken out of context. The witness here would have testified that the specific subject of weapons was never raised during the interview, either by the complainant or by the interviewer. Playing the tape would not put such testimony into any "context."
The State's argument that the "opening of the door" would require the automatic admission of the entire videotape is completely without support.[5] The plain language of Rule 107 indicates that in order to be admitted under the rule, the omitted portion of the statement must be "on the same subject" and must be "necessary to make it fully understood." Tex.R. Evid. 107. It is true that in order to prove that something is not mentioned during an interview, one would need to consider the entire interview. Arguably, under this logic, the entire interview would be "on the same subject" as the proposed testimony, i.e., the absence of particular details. However, it is difficult to see how the entire videotape would be necessary to explain or to make the testimony understood. The testimony of the live witness would establish that the weapons were not inquired about and not mentioned by M.S. during the videotaped interview. The State never contended that the tape would impeach Stephenson's testimony, nor that her testimony would create confusion, distortion, or a false impression about the interview. In fact, if Stephenson had testified as defense counsel anticipated, the evidence on the video would have bolstered her testimony. On the other hand, if the video had been admitted, the references to uncharged offenses likely would have created confusion, rather than helping to dispel it.
This holding is consistent with our recent opinion in Willover v. State, 70 S.W.3d 841 (Tex.Crim.App.2002). In that case this Court was confronted with a similar *124 situation, with one party seeking to introduce videotapes of interviews with a child victim into evidence. However, in Willover it was the defense that sought to introduce the tapes for impeachment purposes, not under Rule 107, but under various hearsay exceptions. The State objected, and the trial court ruled the tapes inadmissible because they could not be edited to eliminate irrelevant portions of the interview. We upheld the trial court's ruling:
When a trial judge is presented with a proffer of evidence containing both admissible and inadmissible statements and the proponent of the evidence fails to segregate and specifically offer the admissible statements, the trial court may properly exclude all of the statements.
Id. at 847. Although Willover was not decided under Rule 107, the same principle applies here.
For the above reasons, we hold that the Court of Appeals erred by upholding the trial court's ruling that the tape would be admissible if appellant called Stephenson to testify.[6] In light of the information before the trial court, there is no theory of law that would require the introduction of the entire videotape into evidence without any showing of necessity by the State. As a witness to the interview, Stephenson could have impeached M.S.'s credibility by testifying to a single, narrow matter. Because the information on the videotape was in no way necessary to make that testimony fully understood, as required by Rule 107, the videotape would not have been admissible.
Accordingly, we reverse the decision of the Court of Appeals, and the cause is remanded to that court for a harm analysis.
WOMACK, J., concurred.
JOHNSON, J., filed a concurring opinion.
KELLER, P.J., filed a dissenting opinion, joined by KEASLER, and HERVEY, JJ.
JOHNSON, J., filed a concurring opinion.
I join the opinion of the Court. If it is true that error is not preserved in a situation such as this, despite timely objection, because the inadmissible evidence was not admitted, then error is also, by analogy, *125 not preserved, despite timely objection, when admissible evidence is not admitted. Under this logic, a trial court may rule incorrectly with impunity merely by refusing to admit the proffered evidence, whatever its nature. If the incorrect ruling significantly affects the ability of either party to present its case, surely we do not wish to shield that incorrect ruling from review. Surely we do not want to force an appellant to choose between calling the witness and having the inadmissible inflammatory evidence admitted, to his probable detriment, or not calling the only witness who can testify about a substantive issue or an issue of mitigation.
In the case at bar, appellant chose not to call the CPS worker to impeach the complainant on the narrow issue of use of weapons because of the trial court's ruling that to do so would allow the state to present the entire taped interview, regardless of its connection to the narrow scope of the proposed impeachment. There was no other witness who could give the needed testimony. The tape contained much comment on extraneous offenses of an inflammatory nature. Thus caught between a rock and hard place, appellant's ability to present his defense was impermissibly impaired. Neither state nor appellant should be required to plead its case under such strictures.
KELLER, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.
The trial court could not have erred in admitting this evidence because the evidence was never admitted. In its brief on discretionary review, the State cites Jackson v. State[1] for the proposition that error was not preserved because the complained of evidence was never admitted. The State is correct. In Jackson, the defendant requested that he be allowed to testify at the punishment phase of trial without being impeached on cross-examination with prior extraneous offenses.[2] The trial court denied his request to limit the State's ability to impeach in the event he testified.[3] Relying upon Luce v. United States,[4] we held that error was not preserved because the defendant did not in fact testify (and thus, was not impeached with extraneous offenses).[5] In Luce, the defendant complained about the trial court's refusal to foreclose impeachment with prior convictions in the event the defendant testified.[6] In declining to review the alleged error, the United States Supreme Court observed that reviewing the trial court's ruling was fraught with difficulty, requiring speculation about:
(1) the precise nature of the defendant's testimony, (2) whether the trial court's ruling would have remained the same or would have changed as the case unfolded, (3) whether the government would have sought to impeach the defendant with the prior conviction, (4) whether the accused would have testified in any event, and (5) whether any resulting error in permitting impeachment would have been harmless.[7]
This case is similar to Jackson and Luce. As in those cases, the defendant *126 declined to introduce favorable testimony after the trial court indicated that the testimony would open the door to unfavorable evidence (involving the defendant's extraneous offenses). And, as in those cases, the unfavorable evidence was never admitted. Because the defendant did not introduce Stephenson's testimony, and as a result, the child's videotaped statement was never admitted, appellant has failed to preserve error for appellate review.
It is true that the State did not raise this particular preservation argument before the Court of Appeals although it raised a related preservation claim that the was rejected.[8] And it is also true that the State did not file a cross-petition. Nevertheless, preservation of error is a systemic issue that a first-level appellate court ought to raise on its own motion and one that a discretionary review court may choose to address if warranted by the circumstances.[9] There is no escaping that the Court's opinion holds to be inadmissible evidence that was never admittedmaking this opinion advisory in nature. And, the procedural posture of the case renders problematic any attempts to review the merits or to conduct a harm analysis. We should either dismiss the petition as improvidently granted or hand down an opinion holding that error was not preserved. Because the Court does neither, I respectfully dissent.
NOTES
[1] The Court of Appeals opinion incorrectly notes that the shooting occurred in September of 1999, three months after the first alleged sexual assault. Sauceda, 2002 WL 977152 at *1, 2002 Tex.App. LEXIS 1526 at *1. However, the court apparently recognized that Mr. Sauceda was in a wheelchair and unable to feed himself at the time of the charged incident. Id. at *1, at *2.
[2] There is conflicting information in the record as to whether the reunion was in Baytown or Bay City, Texas. For the sake of consistency, we will call it Baytown.
[3] Rule 107 reads as follows:
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. "Writing or recorded statement" includes depositions.
[4] Rule 33.1 states:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
[5] As we have explained under the predecessor of Rule 107, Article 38.24 of the Texas Code of Criminal Procedure:
The state cites numerous cases in its brief in support of its proposition that when a defendant offers a portion of a conversation the state is authorized to show the entire conversation. Although some of the cited opinions do use such broad language, it appears that in fact the portions offered by the state were on the same subject gone into by the defendant, and were for the purpose of explaining the whole conversation on the same subject, as permitted by Article 38.24, supra. Thus, although those cases were properly decided, the overly broad statement that the whole conversation may be shown is not supported by the language of the statute and should not be relied upon in the future.
Roman v. State, 503 S.W.2d 252, 254 (Tex.Crim.App.1974).
[6] Both in the Court of Appeals and in its brief to this Court, the State argued that appellant failed to get a definitive ruling from the trial court on his proffer, because defense counsel interrupted the trial court before she could rule.
We believe that the trial judge's statements show that she was doing more than just leaning toward ruling in favor of the State. See Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App.1995)("While we require that a defendant's objections be specific enough to effectively communicate his complaint to the court, we are less stringent in our requirements of the trial court's ruling on an objection.")
Furthermore, we doubt that the trial judge would have allowed defense counsel to make his bill of exceptions and release the witness without comment if she had intended to rule differently. An implied ruling can be inferred from the court's failure to contradict counsel. See
Davis v. State, 104 S.W.3d 177, 180 (Tex.App.-Waco 2003) (defense counsel's offer of proof "for appellate purposes" and exception to the court's "ruling", when no ruling appeared on the record, combined with court's failure to contradict or correct was sufficient to show an "implied ruling").
We believe in this case that the judge's silence, in combination with the statements she made immediately before the interruption are sufficient to constitute an implicit ruling under Gutierrez [v. State, 36 S.W.3d 509, 511 (Tex.Crim.App.2001)]. See also, Chappell v. State, 850 S.W.2d 508, 510 (Tex.Crim.App.1993); Ramirez v. State, 815 S.W.2d 636, 650 (Tex.Crim.App.1991); Beebe v. State, 811 S.W.2d 604, 605 (Tex.Crim.App.1991).
[1] 992 S.W.2d 469 (Tex.Crim.App.1999).
[2] Id. at 479.
[3] Id.
[4] 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).
[5] Jackson, 992 S.W.2d at 479.
[6] Jackson, 992 S.W.2d at 479 (citing Luce, 469 U.S. at 39-40).
[7] Id. (citing Luce, 469 U.S. at 41-42).
[8] The State claimed the trial court had not issued an adverse ruling because it issued a favorable ruling with regard to whether Stephenson could testify and issued no ruling on whether the videotape was admissible.
[9] Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App.1997).
|
373 N.E.2d 131 (1978)
Donald R. SCEIFERS, Appellant,
v.
STATE of Indiana, Appellee.
No. 776S231.
Supreme Court of Indiana.
March 3, 1978.
*132 Daniel B. Burke, Jr., New Albany, for appellant.
Theodore L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.
PIVARNIK, Justice.
Appellant Sceifers was indicted for two counts of first-degree murder in connection with the shooting deaths of his wife, Teresa and the man she was seeing, Herman Lilly. He filed pleas of not guilty by reason of insanity. At the conclusion of a jury trial in Floyd Circuit Court on July 23, 1975, appellant was convicted of lesser-included offenses for both killings and received concurrent sentences. For the killing of Herman Lilly, appellant was convicted of voluntary manslaughter and sentenced to two to twenty-one years imprisonment. For the killing of Teresa Sceifers, he was convicted of second-degree murder and sentenced to life imprisonment.
Six arguments are presented for our review in this appeal: (1) whether contact between jurors and relatives of the decedent Herman Lilly necessitated a mistrial; (2) whether the jury was adequately questioned about exposure to prejudicial trial publicity; (3) whether the conduct of the prosecutor during final argument erroneously prejudiced the defendant; (4) whether the state's tendered instruction on the *133 insanity defense was erroneously given; (5) whether the state's tendered instruction on reasonable doubt was erroneously given; (6) whether the verdicts are supported by sufficient evidence on the issue of appellant's sanity.
I.
In a motion for a mistrial, appellant argued that he was prejudiced by two incidents in which relatives of the decedent Herman Lilly allegedly had contact with the jury. First, it was alleged that Herman Lilly's sister had a conversation with a prospective juror. Second, it was alleged that when the jury visited the scene of the crime, they had contact with four of Herman Lilly's relatives, three who were prospective state's witnesses and two who ultimately testified. This motion for mistrial was overruled, and appellant asserts error upon such denial.
Relative to the first incident, appellant established by testimony outside the presence of the jury that Herman Lilly's sister talked to a prospective juror while he was seated in the courtroom. The prospective juror testified that Lilly's sister identified herself as the sister of the deceased, and told him that the appellant was not insane. This conversation took place before the impaneling of the jury, and the prospective juror in question did not become a member of the sworn jury panel. There was no showing that any seated member of the jury or any alternate juror had such a conversation with decedent Lilly's sister. Further, the trial court questioned the jury about whether any of them heard or overheard a conversation with anyone in the courtroom concerning the trial, and no juror or alternate juror answered in the affirmative.
Appellant cites the cases of Woods v. State, (1954) 233 Ind. 320, 119 N.E.2d 558, and Spencer v. State, (1958) 237 Ind. 622, 147 N.E.2d 581, as authority for the alleged error in the conversation between Lilly's sister and the prospective juror. In Woods, the evidence was undisputed that police officers, who were witnesses for the state, visited and conversed with the jury during a recess in a trial. In Spencer, the jury was allowed to mingle freely with all spectators and participants at the trial during recesses. These situations are both clearly distinguishable from the present set of facts. "We are justified in disturbing a verdict of guilty on account of the alleged misconduct of a juror only when it is shown that such misconduct was prejudicial to the rights of the defendant, or when such a state of facts is shown that it may fairly be presumed therefrom that the defendant's rights were prejudiced." Myers v. State, (1960) 240 Ind. 641, 168 N.E.2d 220; Trombley v. State, (1906) 167 Ind. 231, 78 N.E. 976. Since the prospective juror in this case did not become a member of the jury or an alternate, and since his conversation with decedent's sister was not overheard by the jury, there is no showing of prejudice here. There was no error in denying appellant's motion for mistrial relative to this incident.
The second allegedly prejudicial incident in this context occurred when the jury viewed the scene of the killing. Appellant had requested this view, and it was agreed to by the state. The jury was then transported there by the Floyd County Sheriff's department in the custody of the court bailiff. Four of Herman Lilly's relatives, who were listed as witnesses for the state in this cause, were at the scene, along with two other persons. Three of these relatives of decedent Lilly lived there. There was no showing that any of these persons exhibited any misconduct during the view, nor was there any showing that any of them talked to any of the jurors. The jury was specifically asked about any possible misconduct or conversation, during the view, by the trial court on appellant's motion for a mistrial, and again there was no affirmative response. Appellant's trial attorney testified that he did not hear anyone talk to the jury during the view, and that the alleged misconduct of Lilly's relatives was nothing beyond the fact of their presence.
The cases of Woods and Spencer, supra, argued by appellant, are as inapplicable to this incident as they were to the first. *134 There is no showing of prejudice here. Myers, supra; Trombley, supra. Further, appellant specifically requested this view and should have anticipated that some of Lilly's relatives, who lived there, would be present. The record, however, does not disclose that appellant ever requested the trial court to take any protective measures beforehand to prevent possible contact between the jury and these persons. Cf. Winkler v. Winkler, (1970) 252 Ind. 136, 139, 246 N.E.2d 375, 376. In sum, appellant's allegation of prejudice in this incident is only supported by sheer conjecture and speculation. Cf. Utterback v. State, (1974) 261 Ind. 685, 690, 310 N.E.2d 552, 555. There was no error in denying appellant's motion for mistrial relative to this second incident.
II.
Appellant next contends that the jury was inadequately questioned about their exposure to prejudicial trial publicity. This argument concerns a story which appeared during a recess in the trial, on July 18, 1977. Printed in "The Tribune," a local newspaper in New Albany, this story appeared on the front page with the headline, "Youths Point Finger of Guilt at Sceifers," and discussed some testimony presented by the state on the previous day. When the trial resumed, appellant made a motion for mistrial relative to this publicity. The court overruled the motion and polled the jury, asking them, "Did any member of this jury read, see or hear anything over the weekend that would tend to prejudice you concerning this trial?" All jurors answered this question negatively. Furthermore, the jury in this case was admonished daily not to talk to anyone concerning the case, not to read about the case, and not to allow anyone to talk to them about the case.
The trial court's polling of the jury here, to determine possible exposure to the prejudicial publicity, properly followed the guidelines of Lindsey v. State, (1973) 260 Ind. 351, 295 N.E.2d 819. The court's question was general in nature, but anything more specific might have called attention to the article and headline in question, and motivated a juror to seek out the story during another recess. In view of the negative response to this question, the court was not required to begin the second stage under Lindsey, the individual polling of jurors exposed to the publicity. Finally, the court's daily admonitions to the jury adequately fulfilled the court's duty under the Lindsey case, of instructing upon the hazards of prejudicial exposure and of avoiding it even where no exposure has been shown. The argument of appellant on this issue is thus without merit.
III.
Appellant's next argument of improper and erroneous prejudice concerns the conduct of the prosecutor during final argument. The prosecutor at this time demonstrated the operation of a .38 caliber revolver which had been admitted as a state's exhibit. He stated that the gun could not have been fired accidentally more than once without cocking it between shots. The appellant, during his testimony at trial, had discussed the fatal shootings and the use of the gun, but had not done any demonstration. Appellant at this time had testified that he remembered firing the gun more than once, but that he did not know why or how, or whether it was by accident. Four state's witnesses testified at trial that they saw appellant push Teresa Sceifers to the ground and then shoot her twice. Since there had been no demonstration of the gun during appellant's testimony, the court admonished the jury to disregard the prosecutor's demonstration during final argument. The prosecutor then made another comment about the lack of possibility of accidental shooting, and the trial court further admonished the jury to disregard this comment.
Appellant argues that the present case is similar to Kelley v. State, (1953) 231 Ind. 671, 110 N.E.2d 860, in which the prosecutor in final argument displayed a toy cap pistol which had not been admitted into evidence. The argument is that there was a similar lack of evidentiary background for the demonstration here, since there had been no *135 demonstration of the gun in evidence or expert testimony about its operation. Appellant is correct in this assertion, but ignores the fact that this case is like Kelley in one further respect: in Kelley, the trial court at once instructed the jury on the impropriety of the exhibition, and this court held that the error was not so gross that it could not be cured by such instructions. Similarly, we find the prompt admonitions of the trial court here sufficiently corrected the prosecutor's actions in this case. There is thus no error here.
IV.
Appellant next contends that the state's tendered instruction on the insanity defense was erroneously given. The instruction given was identical to the insanity instruction held proper in Fuller v. State, (1973) 261 Ind. 376 at 381, 304 N.E.2d 305 at 309, and appellant's objections to such instruction here are the same as those made in that case. There is thus no merit in this argument.
V.
The following instruction on reasonable doubt was tendered by the state and given by the trial court over objection by appellant, and is here argued as reversible error:
"The rule of law touching reasonable doubt is a fair, reasonable, and practical rule for the guidance of practical men, when engaged in the solemn and important duty of assisting in a fair, honest, and impartial enforcement of the criminal laws of the State of Indiana.
"But this rule of law which clothes every person accused of crime with the presumption of innocence, and imposes upon the State the burden of establishing his guilt beyond a reasonable doubt, is not intended to aid anyone who is in fact guilty of crime to escape a just and well merited punishment, but is a humane provision of the law, intended insofar as human agencies can, to guard against the danger of any innocent person being unjustly punished. And by reasonable doubt, is not meant, a whim or capricious or speculative doubt. It is properly termed a reasonable doubt, as distinguished from an unreasonable or speculative doubt, and it must arise from all of the evidence or absence of evidence relating to some material fact or facts charged in the indictment, and not spring from mere subsidiary evidence."
Appellant is correct in his assertion that the emphasized portion of the above instruction made it erroneous as a matter of settled Indiana law. White v. State, (1955) 234 Ind. 209, 125 N.E.2d 705; Jalbert v. State, (1928) 200 Ind. 380, 165 N.E. 522; Sharp v. State, (1919) 188 Ind. 276, 123 N.E. 161. However, in reviewing instructions for harmful error, we are bound to consider the impact of the instruction as a whole. Sypniewski v. State, (1977) Ind., 368 N.E.2d 1359; Tewell v. State, (1976) Ind., 339 N.E.2d 792. In this case, the evidence was undisputed that appellant actually shot and killed Teresa Sceifers and Herman Lilly. Thus, the only issue of fact which could have been affected by the erroneous instruction on "mere subsidiary evidence" was the question of appellant's sanity. The jury was fully and properly instructed on all aspects of the insanity defense and criminal responsibility, with instructions tendered by the state, by the defense, and others given on the court's own motion. Further, the following instructions were given, all of which instructed the jury to consider all the evidence, and we believe that these would have made up for the deficiency in the erroneous reasonable doubt instruction:
"If, then you, and each of you, are so convinced by the evidence of whatever class it may be, and considering all the facts and circumstances in evidence as a whole, of the guilt of the defendant, that as prudent men and women you would feel safe to act upon such conviction in matters of the highest concern and importance to your dearest and most important interests, under circumstances where there is no compulsion or coercion upon you to act at all, then you will have *136 attained such a degree of certainty as excludes reasonable doubt and authorizes conviction."
.....
"The law demands that all twelve of you concur in the conclusion that the accused is guilty before he can be convicted. Each individual on the jury must arrive at such conclusion separately, and each juror having in view the oath he has taken, and his duty and responsibility thereunder, should have his own mind convinced, beyond a reasonable doubt upon all the evidence, before he can conscientiously consent to a verdict of guilty."
.....
"A reasonable doubt may arise from the evidence or it may arise from lack of evidence. The defendant is not required to establish any fact which would entitle him to an acquittal by any certain amount of evidence, so that, if the whole evidence or lack of evidence, leaves a reasonable doubt in your mind or in the mind of any one of you as to the defendant's guilt of the offense charged in either Count 1 or Count 2 of the information, then you cannot find the defendant guilty of the Court or any degree of the Count in the information."
Thus, we find that considering the instructions as a whole, the error in the trial court's giving of the "mere subsidiary evidence" instruction was harmless in this case.
VI.
The final argument presented here is that the verdicts were not supported by sufficient evidence on the issue of appellant's sanity.
When a defendant enters a plea of not guilty by reason of insanity, the burden of proving sanity beyond a reasonable doubt is on the state. Montague v. State, (1977) Ind., 360 N.E.2d 181, 187; Johnson v. State, (1970) 255 Ind. 324, 328, 264 N.E.2d 57, 59. Lay testimony, including opinions, is competent on the issue of sanity, Williams v. State, (1976) Ind., 352 N.E.2d 733, 742, as is all evidence which has a logical reference to defendant's sanity, including his sobriety and behavior on the day of the offense, Howard v. State, (1976) Ind., 355 N.E.2d 833, 835. When reviewing the sufficiency of the evidence supporting the conclusion by the trier of fact that the defendant was sane, we treat the issue like other questions of fact. Montague, supra. This court does not judge the credibility of witnesses nor weigh evidence, but rather looks to the evidence most favorable to the state and the reasonable inferences to be drawn from that evidence. If there is substantial evidence of probative value to support the conclusion of the trier of fact, that conclusion will not be overturned. Maxey v. State, (1976) Ind., 353 N.E.2d 457, 459.
In this case, two experts were called by the trial court to testify on the sanity issue. Doctor Thomas Havens testified that he found no reason to think appellant was psychotic at the time the crime was committed, and Doctor David Irigoyen testified that in his opinion appellant was not insane at the time of the trial or at any time in the past of his life. There was lay testimony, from acquaintances of appellant, that he was polite and pleasant on the day before the shootings, and that there was nothing different or peculiar about him on either that day or the next. It was also established that appellant held a responsible position of employment as a foreman at the Naval Ordinance Plant in Louisville supervising twenty-five employees. Against the above evidence, appellant's insanity argument is simply based on evidence that he was hurt, jealous, and upset over his wife's seeing another man. Thus, it is clear that the evidence in this case meets our standard of review for sufficiency of evidence on the sanity question.
The judgment of the trial court is affirmed.
All Justices concur.
|
438 F.Supp.2d 149 (2006)
ECOGEN, LLC, Plaintiff,
v.
TOWN OF ITALY, et al., Defendants.
No. 06-CV-6196 L.
United States District Court, W.D. New York.
July 11, 2006.
*150 *151 Laurie Styka Bloom, Nixon Peabody LLP, Buffalo, NY, for Plaintiff.
Edward F. Premo, II, Megan K. Dorritie, Harter, Secrest & Emery LLP, Rochester, NY, for Defendants.
DECISION AND ORDER
LARIMER, District Judge.
The development of wind power projects, which convert wind energy into electricity, seems to be on the upswing in this country, but that growth has not been universally welcomed. See, e.g., Felicity Barringer, Debate Over Wind Power Creates Environmental Rift, N.Y. Times, June 6, 2006, at A18. As in Don Quixote, where one person sees a windmill, another sees a "monstrous giant" looming over the countryside.[1] This case involves one such *152 proposed project that has met with local opposition.
Plaintiff, Ecogen, LLC ("Ecogen"), commenced this action under 42 U.S.C. § 1983, seeking relief from a moratorium ("the Moratorium") enacted by the Town of Italy (N.Y.) Town Board ("the Board"), which, for the duration of the moratorium prohibits the "construction or erection of wind turbine towers, relay stations and/or other support facilities in the Town of Italy." Ecogen has moved for an order preliminarily enjoining defendants from enforcing or continuing the Moratorium insofar as it relates to the construction and operation of an electrical substation within the Town of Italy. Defendants, who include the Town of Italy ("the Town" or "Italy"), the Town supervisor, and the Board, have moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
BACKGROUND
Ecogen is an independent power producer engaged in the development of windenergy projects (sometimes referred to as "wind farms") in New York State. Wind farms produce electrical energy through the use of wind turbines, which are windmill-like structures that use a wind-driven rotor mounted on a tower to create electricity through the use of a generator. According to plaintiff, only certain types of areas are suitable for the construction of wind farms. In particular, wind farms should ideally be located in areas with strong winds and nearby electrical transmission lines.
In 2001, Ecogen identified certain ridge tops in the contiguous Towns of Prattsburgh and Italy as viable spots for wind energy projects ("the Prattsburgh Project" and "the Italy Project"). Ecogen determined that it would be feasible to build about 30 wind turbines in Prattsburgh, and another 23 in Italy. None have been built to date.
One important feature of these ridge tops is their proximity to an electrical transmission line that runs, in part, through Italy. For the project to succeed, in either Prattsburgh or Italy, a substation would have to be built to connect with that line, and according to plaintiff, the best location for the substation, from an engineering standpoint, would be somewhere in Italy. Plaintiff states that the substation would be roughly 150 feet square, surrounded by a fence of about 200 by 300 feet, noiseless, and would be set well back from the nearest road or other property. Apparently, the chosen site is about one mile from the Italy-Prattsburgh town line.
In anticipation of the Prattsburgh and Italy Projects, Ecogen has acquired property rights and easements to an assemblage of properties in both towns. The Town of Prattsburgh has allegedly welcomed the Prattsburgh Project, and Ecogen has been proceeding with that project, but it cannot be completed until the substation is built.
The Town of Italy Board was apparently less receptive to the project for that town, however. On June 8, 2004, the Board passed a "local law Establishing a Moratorium on Construction or Erection of Wind Turbine Towers, Relay Stations and/or other support facilities in the Town of Italy." Dkt. # 11 Ex. D. The stated purpose of the Moratorium is to prohibit the construction of such structures "for a reasonable *153 time pending the completion of a plan for control of construction of such structures in the Town of Italy as part of the adoption of comprehensive zoning regulations. . . ." Id. § 3(A). The Board also stated that it took this action "to protect the value, use and enjoyment of property in the Town" by its citizens. Id. § 3(B). Specifically, the Board stated that "a principal concern is the scenic and aesthetic attributes of the Town of Italy as they relate to the use of land in the Town for residential, recreational and tourism purposes," and that "the installation of wind turbine facilities in the Town of Italy may have an adverse affect [sic] upon the scenic and aesthetic attributes of the Town of Italy and a correspondingly detrimental influence upon residential and recreational uses as well as real estate values in the Town of Italy, unless properly controlled through zoning regulations." Id. § 3(C).
To fulfill these stated objectives, the Board decreed that "[f]or a period of six (6) months from and after the effective date of this Local Law, no construction or erection of wind turbine towers, relay stations and/or support facilities shall be permitted within the geographical limits of the Town of Italy," nor could any permits for such facilities be filed during that period. Id. § 4. The Moratorium became effective upon its filing with the New York Secretary of State on June 15, 2004. Id. at 1.
The Moratorium also contains a provision, entitled "Alleviation of Extraordinary Hardship," which provides that the Board "may authorize exceptions to the moratorium imposed by this Law when it finds, based upon evidence presented to it, that deferral of action on an application for facility construction, or the deferral of approval of the application for the duration of the moratorium would impose an extraordinary hardship on a landowner or applicant." Id. § 5(A). To apply for such an exception, the applicant must pay a fee of $500, together with a recitation of the relevant facts and supporting documentation. A public hearing on the application is to be held by the Board "no later than forty-five (45) days after the complete application for hardship exception has been filed with the Town Clerk." Id. § 5(C). The Moratorium provides that "[a]t the conclusion of the public hearing and after reviewing the evidence and testimony placed before it, the Town Board shall act upon the application," but it does not provide a time period within which the Board must issue a decision. Id. § 5(E).
As stated, the original duration of the Moratorium was six months. However, the Board has renewed the Moratorium several times since its original passage. It most recently did so on March 29, 2006, Dkt. # 24 Ex. A, and the Moratorium, which has now been in effect for about two years, is currently scheduled to expire-if it is not again renewed-in October 2006.
Because of the Moratorium, then, Ecogen has been unable to erect any wind turbines or related facilities within the Town of Italy, including the substation. Ecogen claims that this is holding up not only the Italy Project but also the Prattsburgh Project, which requires completion of the substation. Ecogen also contends that it has been unable to take certain procedural steps that are necessary to both projects (such as the completion of environmental impact studies), and that it is in jeopardy of losing certain tax credits, which are contingent upon the Prattsburgh Project's completion by December 31, 2007.
Ecogen has not applied for a hardship exception as provided for in the Moratorium, but through its attorneys it has written a number of letters to various Town officials objecting to the inclusion of the substation in the Moratorium. See Dkt. *154 # 11 Ex. F; Dkt. # 30 Ex. B. These letters generally set forth Ecogen's position that, given the aesthetic concerns that were the stated impetus behind the Moratorium, there was no rational reason to include the relatively unobtrusive, and also explained the adverse consequences to Ecogen of not being able to proceed with the construction of the substation in Italy. All these letters went unanswered.
Ecogen commenced this action on March 29, 2006. The complaint purports to assert six causes of action. The first alleges that defendants have deprived plaintiff of due process of law, in violation of the Fourteenth Amendment to the United States Constitution, by enacting and perpetuating the Moratorium, especially as it relates to the substation, thereby denying plaintiff the "use of property based on an illegal, irrational and unconstitutional motivation." Complaint ¶ 58. The second cause of action seeks a judgment pursuant to 28 U.S.C. § 2201 declaring that the Moratorium is unconstitutional or otherwise unenforceable. The third cause of action alleges a "violation of 42 U.S.C. § 1983." The fourth cause of action seeks injunctive relief, and the final two causes of action assert claims under state law.[2]
DISCUSSION
I. Defendants' Motion to Dismiss
A. Facial or As-Applied Challenge?
As stated, defendants move to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The basis for the Rule 12(b)(1) motion is defendants' contention that plaintiff's claims are not ripe for adjudication, because Ecogen has not obtained a "final decision" from the Board concerning the application of the Moratorium to the construction of the substation.
In order for claims to be justiciable under Article III, the controversy must first be ripe. See Marchi v. Board of Coop. Educ. Servs. of Albany, 173 F.3d 469 at 478 (2d Cir.1999) ("ripeness is a constitutional prerequisite to exercise of jurisdiction by federal courts") (internal quotations omitted). "[W]here the dispute involves administrative and zoning regulations, the ripeness doctrine restrains courts from entangling themselves in abstract disagreements over policies, freeing agencies from judicial interference until an actual administrative decision has been formulated and its effects concretely realized." Kittay v. Giuliani, 112 F.Supp.2d 342, 348 (S.D.N.Y.2000) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148-9, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), and Pennell v. City of San Jose, 485 U.S. 1, 10, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988)), aff'd, 252 F.3d 645 (2d Cir.2001) (per curiam).
Applying the ripeness requirement, courts have held that, in the absence of a final decision by the government entity *155 charged with implementing a statute or regulation governing property use, a plaintiff's "as applied" challenge to that statute or regulation is generally not ripe for consideration. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186-88, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Rye Psychiatric Hosp. Center, Inc. v. Shalala, 52 F.3d 1163, 1172 (2d Cir.1995). "This stems naturally from the requirement of `application' to a particular piece of property in as-applied challenges. A statute or regulation cannot be applied to a particular piece of property until it goes into effect." Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1357 (Fed.Cir.2002).
Furthermore, where the application of a statute or regulation is discretionary, "a final decision adverse to the property holder is required to create a ripe claim." Id. (citing Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 187, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)). Typically, that means that the plaintiff must have submitted at least one application for, and been denied, permission for the proposed structure or use of the subject property. See, e.g., Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Reahard v. Lee County, 30 F.3d 1412, 1415 (11th Cir.1994); Kittay, 112 F.Supp.2d at 350.
In contrast, facial challenges to legislative acts "are ripe by their very nature." Kittay, 112 F.Supp.2d at 350; see also Brubaker Amusement, 304 F.3d at 1358 ("facial challenges . . . are ripe as of the enactment of the rule"). As the Supreme Court has stated, however, "[a] facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." See also Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 736 n. 10, 117 S.Ct. 1659, 137 L.Ed.2d 980 (facial challenges "face an `uphill battle'"); National Abortion Fed'n v. Gonzales, 437 F.3d 278, 293 (2d Cir.2006) ("The standard for a `facial challenge' . . . is much more onerous" than that for an asapplied challenge).
Here, Ecogen contends that it is challenging the Moratorium on its face. Ecogen contends that defendants abused their police powers by enacting the Moratorium for an improper purpose, thereby depriving all wind farm developers of due process, not just Ecogen. In particular, according to plaintiff, there is simply no valid reason for a moratorium on all wind power substations, when other types of substations are permitted. Alternatively, plaintiff argues that even if it were challenging the Moratorium as applied, its claim is ripe because, given the Board's overt hostility to the Italy Project, it would be futile for Ecogen to seek the Board's permission to build the substation.
Defendants contend that, Ecogen's assertions to the contrary notwithstanding, an examination of the allegations in the complaint shows that plaintiff is in fact challenging the Moratorium as applied to Ecogen. Specifically, defendants argue, plaintiff is alleging that the particular characteristics of Ecogen's proposed substation-such as its size and location-render it safe, unobtrusive, and generally unobjectionable. Defendants assert that plaintiff's claim is not ripe because Ecogen has not sought a hardship exception under the Moratorium, and there has thus been no final decision with respect to the proposed substation.
There is no reason why a challenge to the constitutionality of an ordinance has to be either facial or as-applied, but not *156 both. Plaintiffs frequently challenge legislative acts both on their face and as applied. See, e.g., Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 827, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002); City of Chicago v. International College of Surgeons, 522 U.S. 156, 160, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). Rather than attempt to pigeonhole plaintiff's claim at the outset, then, it makes more sense to analyze whether plaintiff has stated a viable claim under either theory.
Since the final-decision requirement does not apply to facial challenges, see County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir.2006); Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 507 (9th Cir. 1990), cert. denied, 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991); Parkview Homes, Inc. v. City of Rockwood, No. 05-CV-72708, 2006 WL 508647, at *10 (E.D.Mich. Feb. 28, 2006), and the parties dispute whether plaintiff can satisfy that requirement here, I begin by considering plaintiffs facial challenge to the Moratorium. If the Moratorium is facially invalid, it will be unnecessary to determine whether plaintiff has shown that it would be futile to seek a hardship exception, thus satisfying the finality requirement.
B. Facial Challenge
Plaintiff alleges that insofar as the Moratorium relates to the proposed substation, defendants' actions in passing and renewing the Moratorium have denied plaintiff the use of property without due process of law, in violation of the Fourteenth Amendment. Defendants respond that the Moratorium is a valid exercise of the Town's police and zoning powers.[3]
In the context of land use regulation, the constitutional guarantee of substantive due process protects a person with an interest in property from arbitrary or irrational governmental action depriving the person of that interest. Brady v. Town of Colchester, 863 F.2d 205, 215 (2d Cir.1988); T.S. Haulers, Inc. v. Town of Riverhead, 190 F.Supp.2d 455, 461 (E.D.N.Y.2002). In order to prevail on its substantive due process claim, Ecogen must establish that the Moratorium, at least insofar as it prohibits Ecogen's construction of a substation, bears no rational relationship to any legitimate governmental purpose. Richardson v. Township of Brady, 218 F.3d 508, 513 (6th Cir.2000); Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1225 (2d Cir.1994); Bannum, Inc. v. City of St. Charles, Missouri, 2 F.3d 267, 270 (8th Cir.1993); Kittay, 112 F.Supp.2d at 352.[4]
*157 In undertaking that analysis, the Court is mindful that "federal courts are not to be turned into zoning boards of appeals," Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.1999); accord Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494, 505 (2d Cir. 2001). Nevertheless, if a property owner's constitutional rights are infringed by a municipality's actions, the Court's "duty to protect the constitutional interest is clear." Brady, 863 F.2d at 215 (quoting Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir.1986)).
As stated, facial challenges are difficult to mount successfully, and that holds true in the context of zoning and land use regulation as well. "Generally a municipal zoning ordinance is presumed be valid, and will not be held unconstitutional if its wisdom is at least fairly debatable and it bears a rational relationship to a permissible state objective." Greene v. Town of Blooming Grove, 879 F.2d 1061, 1063 (2d Cir.1989) (citing see City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). In applying those principles here, defendants' subjective motivation in enacting the Moratorium is irrelevant. United States v. Carlton, 512 U.S. 26, 36-37, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (O'Connor, J., concurring); Tri County Paving, Inc. v. Ashe County, 281 F.3d 430, 439 (4th Cir.2002); Homar v. Gilbert, 89 F.3d 1009, 1029-30 (3d Cir.1996) (Alito, J., concurring in part and dissenting in part), reed on other grounds, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997).
While the Court certainly may consider whether the Moratorium is rationally related to its stated purpose, see, e.g., Ultimate Custom Cycles, Inc. v. Town of Greenburgh, No. 98 CIV. 5914, 1999 WL 135201, at *8 (S.D.N.Y. Mar. 11, 1999), that is ultimately not determinative, and in fact it is not necessary for defendants to enunciate any purpose for the Moratorium. See Panama City Medical Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1546 (11th Cir.1994) ("Because legislatures are not required to articulate reasons for the enactment of a statute, `it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature'") (quoting F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)) (footnote omitted). Instead, "the proper inquiry is concerned with the existence of a conceivably rational basis, not whether that basis was actually considered by the legislative body." Haves v. City of Miami, 52 F.3d 918, 922 (11th Cir.1995) (citation omitted); see also Dittman v. California, 191 F.3d 1020, 1031 (9th Cir.1999) ("we do not require that the government's action actually advance its stated purposes, but merely look to see whether the government could have had a legitimate reason for acting as it did"), cert. denied, 530 U.S. 1261, 120 S.Ct. 2717, 147 L.Ed.2d 982 (2000); Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068, 1070-71 (8th Cir.1997) (plaintiffs allegation that defendant zoning board's decision to place restrictions on plaintiffs asphalt plant permit was motivated by personal animus was insufficient to support substantive due process claim, since board had "rational bases" upon which to restrict permit); WMX Technologies, Inc. v. Gasconade County, Missouri, *158 105 F.3d 1195, 1201 (8th Cir.1997) ("In adjudicating facial substantive due process challenges to a zoning or land use ordinance, we do not inquire into the methods and motives behind its passage. We ask only whether a conceivable rational relationship exists between the ordinance and legitimate governmental ends"). Plaintiff thus has the heavy burden "to negative every conceivable basis which might support" the Moratorium. Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).[5]
Applying these standards to the case at bar, I find that plaintiff has not stated a valid claim that the Moratorium is invalid on its face. Whatever its shortcomings, I am not able to say that it is so arbitrary or irrational as to violate plaintiff's substantive due process rights. See County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (3d Cir.2006) (judicial "invalidation of [zoning] legislation for `irrationality' or `arbitrariness,' is proper only if the governmental body could have had no legitimate reason for its decision") (quoting Phillips v. Borough of Keyport, 107 F.3d 164, 186 (3d Cir.) (Alito, J., concurring and dissenting), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 261 (1997)); Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494, 503 (2d Cir.2001) (to show that zoning board's denial of plaintiff's application for special use permit violated plaintiff's right to substantive due process, plaintiff must show that it had valid property interest in the granting of the permit, and that defendants infringed that property interest in an arbitrary or irrational manner).
First, I note that, at least for purposes of the pending motions, plaintiff does not appear to dispute that in general the Town has an interest in preserving its aesthetic character. See, e.g., Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 645 (2d Cir.1999) ("Aesthetics is generally a valid subject of municipal regulation and concern"); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 ("In New York, aesthetics can be a valid ground for local zoning decisions"). Plaintiff contends, though, that the modest substation presents no aesthetic concerns.
The question, then, is whether the Moratorium's prohibition of the construction of "wind turbine towers, relay stations and/or other support facilities" is rationally related *159 to that interest. Again, I am unable to say that it is not. Assuming that the Town has a legitimate concern in restricting the construction of wind towers, the Moratorium is not completely irrational. If the aim is to prevent wind towers from being built in Italy, certainly it makes some sense to prohibit the construction of wind tower support facilities, such as substations, as well.
Plaintiffs contention that the substation itself would have no adverse aesthetic impact, and that it makes no sense to single out substations related to wind power projects, therefore miss the mark. Prohibiting the construction of wind power substations is not an end in itself, but a means to an end: prohibiting (for the duration of the Moratorium, a matter which is further discussed below) the construction of wind farms in Italy.
It may be that defendants' means of attaining that end are not the most efficacious, wisest or fairest possible, but that is not the standard by which they are to be judged by this Court, especially at this stage of the litigation. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) ("A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality") (internal quotation marks omitted); Rojas-Reyes v. I.N.S., 235 F.3d 115, 123 (2d Cir.2000) (legislative acts "need not result in the most just or logical result in every case to pass constitutional muster"); Richmond Boro Gun Club, Inc. v. City of New York, No. 92 CV 0151, 1995 WL 422014, at *2 (E.D.N.Y. Feb. 23, 1994) ("In a challenge to a law's rationality, the court is precluded from weighing the wisdom, need, or utility of the law," and "is also not allowed to speculate on a better method for remedying the problems sought to be regulated").
Courts "will not strike down a law as irrational simply because it may not succeed in bringing about the result it seeks to accomplish, because the problem could have been better addressed in some other way, or because the statute's classifications lack razor-sharp precision." Beatie v. City of New York, 123 F.3d 707, 712 (2d Cir. 1997) (citations omitted).[6] "This is the standard of review because the judicial system has long recognized that `[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.'" Rojas Reyes, 235 F.3d at 124 (quoting Heller, 509 U.S. at 321, 113 S.Ct. 2637).
As the Second Circuit has explained,
*160 [s]ubstantive due process is an outer limit on the legitimacy of governmental action. It does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action. Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.1999). See also County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (stating that "only the most egregious official conduct can be said to be arbitrary in the constitutional sense") (citation and internal quotation marks omitted); Silverman v. Barry, 845 F.2d 1072, 1080 (D.C.Cir.) ("Only a substantial infringement of state law prompted by personal or group animus, or a deliberate flouting of the law that trammels significant personal or property rights, qualifies for relief under § 1983") (citation omitted), cert. denied, 488 U.S. 956, 109 S.Ct. 394, 102 L.Ed.2d 383 (1988).
In support of its position, Ecogen cites New York case authority to the effect that a municipality may exercise its police power only where there is a "dire necessity" to act and where the municipality's actions are "reasonably calculated to alleviate or prevent the crisis condition." See Matter of Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 512, 364 N.Y.S.2d 160, 323 N.E.2d 697 (1974). That may indeed be the law of New York, but it is not the test for determining whether one's due process rights under the United States Constitution have been violated. See Harlen Associates, 273 F.3d at 505 (stating that plaintiffs "arguments rely heavily on New York cases arising out of Article 78 appeals of local zoning decisions which raise no federal constitutional issue"); Natale, 170 F.3d at 262 ("Arbitrary conduct that might violate zoning regulations as a matter of state law is not sufficient to demonstrate conduct so outrageously arbitrary as to constitute a gross abuse of governmental authority that will offend the substantive component of the Due Process Clause"). I believe, therefore, that plaintiffs facial challenge must fail.
C. As-Applied Challenge
As stated, plaintiff expressly contends in its Reply Memorandum that it is not challenging the Moratorium as applied to Ecogen. The complaint, though, and the arguments advanced against the Moratorium can reasonably be read as raising an as-applied challenge. To the extent that plaintiffs claim could be so construed, however, I find that it is not ripe for review.
Ripeness typically requires the property owner to have submitted "at least one meaningful application for a variance" or other exemption from the challenged ordinance. Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 348 (2d Cir. 2005). Here, Ecogen argues that, should the Court construe its claim as an asapplied challenge, the ripeness requirement has been satisfied, notwithstanding Ecogen's failure to apply for a hardship exception, because it would be futile for Ecogen to do so.
I am not persuaded by that assertion. It is true that the ripeness doctrine "does not require [plaintiff] to jump through a series of hoops, the last of which it is certain to find obstructed by a brick wall," Triple G Landfills v. Board of Commissioners of Fountain County, Indiana, 977 F.2d 287, 291 (7th Cir.1992), but the presence of that "brick wall" must be all but certain for the futility exception to apply. There must be evidence that the *161 relevant governmental body has no discretion to grant an exemption, or that it "has dug in its heels and made clear that all such applications will be denied." Murphy, 402 F.3d at 349. See also Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022, 1035 (9th Cir. 2005) (describing the futility exception as "narrow"); Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st Cir.) (stating that "a sort of inevitability is required: the prospect of refusal must be certain" for futility exception to apply), cert. denied, 502 U.S. 866, 112 S.Ct. 192, 116 L.Ed.2d 153 (1991); White Mtn. Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir.1988) (stating that "administrative review may be futile by virtue of a preannounced decision" by the decislonmaker).
Here, it may be unlikely that defendants would grant Ecogen a hardship exception from the Moratorium, since it was apparently Ecogen's Italy Project that prompted defendants to adopt the Moratorium in the first place. There is obviously some hostility toward the project among some in the town. That the availability of such an exception is doubtful is not enough, however. See Manufactured Home Communities, 420 F.3d at 1035 ("mere uncertainty does not establish futility"). Likewise, plaintiffs allegations that defendants are hostile to the Italy Project do not suffice to establish futility. See Goldfine v. Kelly, 80 F.Supp.2d 153, 160 (S.D.N.Y.2000) (plaintiffs allegation that city officials were hostile to his proposed development and conspired to prevent him from continuing development project were insufficient to establish futility). Even if defendants are antipathetic to the project, it is not so clear that they would never grant a hardship exception to allow Ecogen to at least build a substation in Italy to service the Prattsburgh project as to show that it would be futile for Ecogen to apply for such an exception. Perhaps an automatic, unreasoned, knee-jerk denial of such an application may be grist for future litigation, but this claim is not appropriately before me now.
D. Duration of the Moratorium
Although I find that the Moratorium is facially valid, and that Ecogen's asapplied challenge to the Moratorium is not yet ripe, I also recognize that to pass constitutional muster, a moratorium must be of reasonable duration, and that at some point, a so-called "moratorium" can amount to an unconstitutional taking or violation of a property owner's due process rights. See Bronco's Entertainment, Ltd. v. Charter Tp. of Van Buren, 421 F.3d 440, 453 (6th Cir.2005) (upholding moratorium on submission of rezoning petitions in part because moratorium "was of a reasonably short duration"); ASF, Inc. v. City of Seattle, 408 F.Supp.2d 1102, 1108-09 (W.D.Wash.2005) (finding seventeen-year moratorium on issuance of new adult entertainment licenses unconstitutional); Q.C. Constr. Co. v. Gallo, 649 F.Supp. 1331, 1337 (D.R.I.1986) (noting that "[a]pproved moratoriums have also been either temporary or of reasonable or limited duration") (collecting cases), aff'd, 836 F.2d 1340 (1st Cir.1987). A municipality may not use a "moratorium" as a de facto means of achieving a desired legislative purpose.
Whether a given moratorium is unreasonably lengthy depends upon the surrounding circumstances. In land use cases, the critical question is often how much time the municipality needs to study the situation before it and develop a comprehensive zoning plan or other response to the situation. See, e.g., Phillips v. Borough of Keyport, 107 F.3d 164, 181 (3d Cir.1997) ("if a public official authorized by local law to impose a moratorium on the *162 issuance of permits imposed such a moratorium for the purpose of allowing the municipality a reasonable opportunity to consider whether the secondary effects of adult entertainment uses required additional zoning regulation, any resulting delay could not constitute a substantive due process violation"); Q.C. Constr., 649 F.Supp. at 1337 ("Moratoriums have been approved when they form a part of a comprehensive plan to remedy a problem situation"); Smoke Rise, Inc. v. WSSC, 400 F.Supp. 1369, 1383 (D.Md.1975) (reasonableness of sewer moratoria was to be judged by their purpose and duration).
There is, then, no bright-line rule as to how long a moratorium can remain in effect without treading upon constitutional rights, see Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 342, 122 S.Ct. 1465, 152 L.E d.2d 517 (2002). Though the Supreme Court has commented that "[i]t may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism," id. at 341, 122 S.Ct. 1465, it also held in Tahoe-Sierra that a thirty-two-month moratorium on development was not such an extraordinary delay as to amount to a compensable taking. Id. at 341-42, 122 S.Ct. 1465. Under the circumstances here, it does seem curious and suspicious that a two-year period is needed to adopt a zoning plan for wind turbines.
In the case at bar, defendants contend that the moratorium is needed to maintain the status quo while the Town, which has no comprehensive zoning plan, develops such a plan. They also contend that they are nearing completion of that plan, and that it will likely be issued in the near future. At oral argument on this motion, counsel for the Town represented that the moratorium should end in October, 2006.
Plaintiff asserts that it has heard such promises before. Plaintiff claims that further delay in construction of the substation will jeopardize Ecogen's chances of obtaining millions of dollars in tax credits, which are contingent upon the Prattsburgh Project being completed no later than December 31, 2007. In that regard, I note that there is some authority that significant hardships occasioned by governmental delay in acting can warrant judicial intervention, even if the plaintiff has not obtained a final decision on its application. See Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st Cir.1991)("There may be a further facet of the futility exception, applicable where the degree of hardship that would be imposed by waiting for the permit process to run its course is so substantial and severe, and the prospects of obtaining the permit so unlikely, that the property may be found to be meaningfully burdened and the controversy concrete enough to warrant immediate judicial intervention").
Mindful of the competing interests of the Town in preserving the status quo pending completion of a comprehensive zoning plan, and of Ecogen in obtaining a prompt decision on its proposal to build a substation in Italy to service its project in Prattsburgh, I deny plaintiff's motion for a preliminary injunction at this time, but with the added provision that defendants must either: (1) enact a comprehensive zoning plan within ninety days of the date of issuance of this Decision and Order; or (2) render a decision on plaintiff's application for a hardship exception within ninety days of its filing. If defendants fail to do either of these things, plaintiff may again seek injunctive relief in this Court.
CONCLUSION
Plaintiff's motion for a preliminary injunction (Dkt.# 11) is denied.
Defendants' motion to dismiss the complaint (Dkt.# 17) is granted, and the complaint *163 is dismissed without prejudice. If defendants fail either to: (1) enact a comprehensive zoning plan within ninety (90) days of the date of issuance of this Decision and Order, or (2) render a decision on plaintiff's application for a hardship exception within ninety (90) days of its filing, plaintiff may refile its complaint and seek injunctive relief in this Court.[7]
IT IS SO ORDERED.
NOTES
[1] At this point they came in sight of thirty or forty windmills that are on that plain, and as soon as Don Quixote saw them he said to his squire, "Fortune is arranging matters for us better than we could have shaped our desires ourselves, for look there, friend Sancho Panza, where thirty or more monstrous giants present themselves, all of whom I mean to engage in battle and slay. . . ."
Miguel de Cervantes Saavedra, Don Quixote, pt. 1, ch. VIII (John Ormsby, trans.), available at http://www.online-literature.com/cervantes/don_quixotel.
[2] The Court of Appeals for the Second Circuit has held that "there is no place for a cause of action against a municipality directly under the 14th Amendment, because the plaintiff may proceed against the [municipality] under § 1983." Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir.1979) (per curiam); accord Wax `N Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir.2000) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)); Dix v. City of New York, No. 01 CIV. 6186, 2002 WL 31175251, at *9 (S.D.N.Y. Sept. 30, 2002). Thus, the first cause of action essentially merges into plaintiff's claim under § 1983. See Hughes v. Bedsole, 48 F.3d 1376, 1383 n. 6 (4th Cir.), cert. denied, 516 U.S. 870, 116 S.Ct. 190, 133 L.Ed.2d 126 (1995).
[3] Although defendants initially took the position that Ecogen had not identified a protected property interest, see Brady v. Town of Colchester, 863 F.2d 205, 211-12 (2d Cir. 1988) (to state a claim under Fourteenth Amendment for deprivation of property without due process of law, person must establish that he had valid, protectible property interest of which he was deprived), citing Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), plaintiff has provided evidence that Ecogen has exercised an option to purchase property in Italy where it would like to build a substation. See Dkt. # 11 at 36-39, Dkt. # 32 ¶ 5. The exercise of an option to purchase does give rise to a protected property interest, see In re Prudence Bonds Corp., 79 F.2d 212, 216 (2d Cir. 1935); In re Water Front on Upper New York Bay, in Borough of Richmond, City of New York, 246 N.Y. 1, 33, 157 N.E. 911 (1927); United Skates of America, Inc. v. Kaplan, 96 A.D.2d 232, 237, 468 N.Y.S.2d 642 (2d Dep't 1983), and defendants do not now appear to dispute that plaintiff does have such an interest.
[4] Although framed in terms of substantive due process, Ecogen's claim also has some characteristics of an equal protection claim, since it is based in part on the fact that defendants have not prohibited the construction of all substations and other electric power facilities, but only those for use in wind power projects. The tests under the Equal Protection Clause and for purposes of substantive due process are essentially the same, however. See Berger v. City of Mayfield Heights, 154 F.3d 621, 624 (6th Cir.1998); Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 n. 6 (11th Cir. 1995); Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161, 165 (9th Cir.1993).
[5] Though the Moratorium is not, strictly speaking, a "zoning" ordinance (since Italy has no zoning plan in place as yet), it is functionally similar to a zoning ordinance, see Sagamore Park v. City of Indianapolis, 885 F.Supp. 1146, 1150 (S.D.Ind.1994) (town moratorium on off-track betting facilities was "an act of zoning"). In any event, as an exercise of the Town's police power, it is also subject to a presumption of validity and to rational-basis review. See Bibb v. Navajo Freight Lines, 359 U.S. 520, 529, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959) (exercise of police power is presumed to be constitutionally valid); Empire State Restaurant and Tavern Ass'n, Inc. v. New York State, 360 F.Supp.2d 454, 460 (N.D.N.Y.2005) ("there is a strong presumption of validity for a statute passed pursuant to state or local police power"); Jamaica Ash & Rubbish Removal Co., Inc. v. Ferguson, 85 F.Supp.2d 174, 188 (E.D.N.Y. 2000) ("simple exercises of general police powers" are "presumptively valid"); Sanitation and Recycling Industry, Inc. v. City of New York, 928 F.Supp. 407, 412 (S.D.N.Y. 1996) ("there is a strong presumption of validity of a statute passed under a state or local government's police power, and parties attacking such statutes on constitutional grounds carry a heavy burden") (citation omitted). See also WMX Technologies, 105 F.3d at 1199 n. 4 (district court properly applied "truly irrational" standard-i.e., same standard applied to zoning laws-to county's enactment of ordinance; although county had no zoning authority or plan, it acted pursuant to its statutory authority, and there is no significant difference between land use regulations enacted pursuant to zoning plan and those enacted pursuant to other authority). Cases dealing with zoning ordinances are therefore relevant here as well.
[6] The Court recognizes that Beatie involved a challenge to "social legislation"an antismoking ordinancethat "d[id] not interfere with fundamental rights or single out suspect classifications. . . ." 123 F.3d at 711-12. Though the Moratorium does implicate plaintiff's property rights, it does not implicate any fundamental constitutional rights, and is nonetheless subject to the same rational-basis review as the ordinance in Beatie. See, e.g., Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir.1999) (applying rational-basis test to § 1983 claim against town arising out of denial of building and zoning permits required to develop plaintiff's property); see also Koscielski v. City of Minneapolis, 435 F.3d 898, 902 (8th Cir.2006) (stating that plaintiff's argument that city zoning ordinance that restricted where firearms dealerships could operate violated Due Process Clause because it effectively eliminated the ability of firearms dealerships to relocate within city limits "does not touch on a fundamental right or liberty interest"); Greenbriar Village, L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir.2003) (because property interests are not created by the Constitution, but by existing rules or understandings that stem from an independent source such as state law, plaintiff could not premise substantive due process claim directly on city's denial of its state-granted and defined property right in land-disturbance permit).
[7] Both sides have submitted materials outside the pleadings in connection with the pending motions. To the extent that I have considered those materials, I have done so only in connection with the preliminary injunction motion and the motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). I have not considered those materials in deciding the motion to dismiss for failure to state a claim under Rule 12(b)(6). See Township of West Orange v. Whitman, 8 F.Supp.2d 408, 414 (D.N.J.1998) ("the Court will exclude from its consideration of the motions to dismiss matters outside the pleadings that have been submitted in connection with the motion for a preliminary injunction").
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7000
ALTERIC HUNT,
Plaintiff - Appellant,
versus
KIRKLAND R&E,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (CA-03-58-6-13AK)
Submitted: July 10, 2003 Decided: July 17, 2003
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alteric Hunt, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alteric Hunt appeals the district court’s order dismissing
without prejudice his 42 U.S.C. § 1983 (2000) complaint. The
district court referred this case to a magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(B) (2000). The magistrate judge recommended
that relief be denied and advised Hunt that failure to file timely
objections to this recommendation could waive appellate review of
a district court order based upon the recommendation. Despite this
warning, Hunt failed to object to the magistrate judge’s
recommendation.
The timely filing of specific objections to a magistrate
judge’s recommendation is necessary to preserve appellate review of
the substance of that recommendation when the parties have been
warned that failure to object will waive appellate review. See
Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also
Thomas v. Arn, 474 U.S. 140 (1985). Hunt has waived appellate
review by failing to file objections after receiving proper notice.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
|
240 F.2d 564
COPPUS ENGINEERING CORPORATION, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 5138.
United States Court of Appeals First Circuit.
Heard November 7, 1956.
Decided January 16, 1957.
COPYRIGHT MATERIAL OMITTED Ernest L. Anderson, Worcester, Mass., with whom Lloyd Anderson and Anderson, Anderson & Howard, Worcester, Mass., were on the brief, for petitioner.
Fannie M. Boyls, Atty., N. L. R. B., Washington, D. C., with whom Theophil C. Kammholz, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Margaret M. Farmer, Atty., N. L. R. B., Washington, D. C., were on the brief, for respondent.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
1
The petitioner, Coppus Engineering Corporation, pursuant to § 10(f) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., hereafter called the Act, seeks review of an order of the National Labor Relations Board, and the Board has filed an answer to this petition and also a cross petition, under § 10(e), requesting enforcement of its order.
2
The Board ordered the petitioner to cease and desist from: assisting, dominating, contributing financial or other support to, or interfering with the administration of, the Shop Committee, or any other labor organization; otherwise interfering with the representation of its employees through a labor organization of their own choosing; recognizing the Shop Committee, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the petitioner concerning terms or conditions of employment. Affirmatively, the order required petitioner to withdraw and withhold all recognition from, and completely disestablish, the Shop Committee, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the petitioner concerning terms or conditions of employment. The Board in its decision and order adopted the findings, conclusions and recommendations of the trial examiner.
3
The conclusions of the trial examiner, so adopted, were that: (1) the Shop Committee was a labor organization within the meaning of § 2(5) of the Act; (2) the petitioner had engaged in unfair labor practices within the meaning of § 8(a) (2) by assisting, supporting, dominating and interfering with the administration of the Shop Committee; (3) by such conduct the petitioner had interfered with, restrained and coerced its employees in the exercise of rights guaranteed in § 7 and thereby had engaged in unfair labor practices within the meaning of § 8(a) (1); (4) that these unfair labor practices affected commerce within the meaning of § 2(6) and (7).
4
Since petitioner contests only conclusions (2) and (3) above, we need discuss only the facts pertinent to them. These facts as drawn chiefly from the findings of the trial examiner, and in the light most favorable to the Board, are as follows:
5
The petitioner, a Massachusetts corporation, is engaged at Worcester, Massachusetts, in the manufacture, sale and distribution of steam turbines, blowers, air filters and related products. It employs approximately eighty in its production and maintenance group.
6
On September 11, 1952, the United Steelworkers of America, C.I.O., filed with the Board a petition for certification as collective bargaining representative of the petitioner's production and maintenance employees. As the petitioner did not agree to recognize the Union as such representative, an election was held October 7, 1952 in which the Union failed to receive a majority.
7
Shortly thereafter, the petitioner's president, Jerome George, called a meeting of the production and maintenance employees at the plant. George made a short speech and suggested to the employees "that they have a permanent grievance committee, if that is what they wanted to call it, to handle grievances" with management. George then left the meeting and the employees nominated candidates to form a Shop Committee from among their number. A ballot was then drawn up and some days later an election was held at the plant. The five employees who received the largest number of votes constituted the original Shop Committee, hereinafter called the Committee, with the employee receiving the largest vote serving as chairman.
8
Since its establishment the Committee entered into discussions with management concerning not only individual employee grievances, but also wages, hours, pensions, holidays and other working conditions.
9
In February 1954 the petitioner published at its own expense and distributed to all employees an eleven page booklet, with the cover containing the title, "Plant Rules and Policies," and the petitioner's name at the bottom. This booklet set forth the petitioner's rules and policies under six topic headings. The petitioner's name and address appeared again on the bottom of the last page. The first page contained the general heading "Plant Rules and Policies." Directly under that was listed the first topic heading, "The Shop Committee." The contents of this topic were the rules of the Committee.1
10
These rules were drafted by the Committee and approved by the employees at a meeting held at the plant. A witness testified that without the approval of all the employees the Committee voluntarily gave a copy of the rules to management, but he did not remember why they did so. A vice-president of the petitioner admitted that most of the matters contained in the booklet were discussed with the Committee and that some of the provisions set forth therein as petitioner's plant rules and policies resulted from meetings with the Committee.
11
The Committee at all times functioned in accordance with the provisions set forth in the booklet. Moreover, a copy of this booklet was given to every new employee hired by the petitioner.
12
Elections of Committee members were held twice a year at the plant during the lunch period, with the petitioner's knowledge. It can be concluded from the findings of the trial examiner that these elections were run solely by the employees without any member of management in attendance. Notices of the election results were posted by the Committee on the plant bulletin boards. The record shows that the employees were free to use the bulletin boards for any purpose. When the election meetings ran beyond the one half hour lunch period, the employees in attendance received their regular pay for such time. The trial examiner also found that whatever facilities and equipment involved in conducting the elections, such as ballots and the use of typewriters, were obtained at the plant.2
13
The Committee rules made no provisions for general employee meetings to canvass their grievances and to formulate their demands in common. Such meetings were usually held whenever the chairman told "the committee members that it was about time" for a meeting. A witness testified that meetings were called in this manner every two or three weeks. The employees were informed of such meetings by a notice typed by the Committee chairman and posted by him on the plant bulletin boards. These meetings, which no representative of management ever attended, were held in the petitioner's machine shop during the lunch period. At these meetings the employees brought up the subject matters which they would like to have the Committee discuss with management. The Committee then drew up an agenda which was submitted to the petitioner's vice-president. He then notified the Committee by a notice posted on the plant bulletin boards of the time set for a meeting with management. Meetings with management were held in the President's office during working hours and, as the trial examiner found, they frequently continued beyond the normal workday. The following day the Committee reported the results of its meeting with management at a meeting of the employees.
14
When employee meetings went beyond the regular lunch period, all employees in attendance continued to be paid their regular wages for that period. It was stipulated by the parties that some of these meetings ran from five to fifteen minutes over the regular lunch hour. The Committee members were paid their regular wages for time spent at management meetings during working hours and were paid time and a half for the period beyond the normal workday, when the total number of working hours for the week was above forty. A Committee member, who acted as secretary, typed the minutes of the employee meetings and of meetings with management, using plant facilities. The vice-president of petitioner also typed the minutes of the Committee meetings with management and furnished a copy to the Committee.
15
The Committee had no constitution or bylaws other than the Committee rules set forth above. There were no membership dues, no provisions or requirements for employee membership and no indicia of membership for the employees.
16
To this point the facts recited concern the background of the instant case. The sixth month statutory period, upon which the findings of unfair labor practices are based, commenced on April 21, 1955.
17
Since April 21, 1955 the trial examiner found that the Committee continued to exist and function in all respects in the same manner as described above until its suspension. Further, that the petitioner continued furnishing each new employee a copy of the booklet containing the rules of the Committee and the petitioner's plant rules and policies.
18
Elections, employee meetings, and management meetings were held at the plant. The employees in attendance were paid their regular wages when elections and meetings ran beyond the one half hour lunch period, and Committee members were paid for time spent at meetings with management when the meetings lasted beyond the normal workday. The Committee existed without any provisions for membership of the employees generally and without any source of revenue.
19
Since the beginning of the statutory period, on April 21, 1955, the Committee met with management approximately six times discussing a wide variety of terms or conditions of employment. The Committee, however, has not requested the petitioner to negotiate a written collective bargaining agreement.
20
Upon charges filed by the United Steelworkers of America, AFL-CIO, the general counsel of the Board issued a complaint dated January 10, 1956. The complaint alleged, in substance, that petitioner engaged in unfair labor practices by dominating, assisting, contributing to the support of, and interfering with the administration of the Committee. After a hearing on January 31, 1956, the trial examiner issued an intermediate report and recommended order which was later adopted by the Board in its decision and order of May 21, 1956.
21
The question presented in these proceedings is whether substantial evidence on the record considered as a whole, as provided by § 10(e) of the Act, supports the Board's conclusions that petitioner committed unfair labor practices in violation of § 8(a) (2) and (1) and § 7.
22
Initially, we note that substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. Furthermore, it has been established that it is for the Board and not the courts to find the facts and to draw inferences from the evidence. National Labor Relations Board v. Pennsylvania Greyhound Lines, 1938, 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed 831. Equally well established, however, is the principle that it is the responsibility of the reviewing court to determine "whether the Board's findings are supported by substantial evidence and whether its conclusions are reasonably inferable from the evidence." National Labor Relations Board v. Sun Shipbuilding & Dry Dock Co., 3 Cir., 1943, 135 F.2d 15, 25. Where the findings of the Board with respect to questions of fact are not supported by substantial evidence on the record considered as a whole the reviewing court has exclusive jurisdiction "to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board," as provided by § 10(f). Guided by these standards we believe the Board's findings3 are not supported by substantial evidence.
23
We turn now to the first item of evidence, specifically, the circumstances surrounding the formation of the Committee,4 upon which the Board relied for its findings. It appears in the record that in October 1952, shortly after the United Steelworkers of America lost the election at petitioner's plant, president George called a meeting of the employees and suggested "that they have a permanent grievance committee, if that is what they wanted to call it." George then left the meeting and the employees proceeded to form the Shop Committee. From this the Board inferred that "the proposal and impetus for the formation of the Shop Committee came from the [petitioner's] President George," and, further, that "inherent in the [petitioner's] suggestion was a promise to recognize and deal with the Shop Committee upon its formation."
24
We believe that the Board's inferences in this respect are without foundation in the evidence. It is clear that the finding of an unfair labor practice cannot stand in the face of the First Amendment or of § 8(c),5 if the employer's statement, upon which the finding is based, does not contain some threat of reprisal or force or promise of benefit. National Labor Relations Board v. Corning Glass Works, 1 Cir., 1953, 204 F.2d 422, 35 A.L.R.2d 408. Likewise, an employer's statement cannot be used as background material for the finding of an unfair labor practice where such statement falls short of restraint or coercion.
25
Looking at the record as a whole, there is no reason for concluding, as the Board seems to have, that George's statement gave rise to a labor organization which was the creature of management at inception, and which functioned in subservience to management after inception, contrary to § 8(a) (1) and (2).
26
If any meaning can be attributed to George's statement, it is that he preferred to deal with a permanent grievance committee as opposed to other types of labor organizations. The very fact that the employees formed the Shop Committee, an organization with much wider scope than a grievance committee, dealing with wages, hours, pensions, holidays and other working conditions as it did, shows how little the employees were influenced by George's statement. However, even if the statement be deemed an expression of a preference as between labor organizations by petitioner, it would not in itself constitute background material of unlawful interference with employees in the exercise of their rights under the Act. See Jefferson Electric Co. v. National Labor Relations Bd., 7 Cir., 1939, 102 F.2d 949. Only if "such asserted preference, with all surrounding facts and circumstances, amounts to improper influence and approaches a coercive character" is it to be condemned. Diamond T Motor Car Co. v. National Labor Relations Board, 7 Cir., 1941, 119 F.2d 978, 982. It is noteworthy in this connection that there was no evidence of a background of union hostility on the part of petitioner. Neither was there any testimony giving any indication that the employees acted under pressure emanating from George's statement. In conclusion, we believe that the Board, in making its findings, should not have placed the reliance that it did on George's statement.
27
The next item of evidence deals with petitioner's acceptance of the Committee as the representative of the employees without asking for proof of its representative status, although earlier it had forced the United Steelworkers of America to prove its majority status in an election. From this the Board concluded for the purpose of background evidence that "it can hardly be said that the Shop Committee was the freely chosen bargaining agent of the employees." We believe that in the circumstances here, especially in light of the fact the employees in a secret meeting had approved the Shop Committee as their representative organization by voting for members on the Committee, hasty recognition of the Committee did not amount to background evidence of support or domination by the petitioner. To constitute such evidence hasty recognition of one labor organization would have to be coupled with some nonprivileged discrimination against a rival labor organization, and there is no evidence of that in this case. See National Labor Relations Board v. Corning Glass Works, supra; Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., 7 Cir., 1955, 221 F.2d 165. Petitioner, in forcing the United Steelworkers of America to an election, did not discriminate, but rather exercised a right given to it by the Act.
28
Another basis for the Board's findings that petitioner supported and dominated the Committee was the printing of the Committee's rules in petitioner's booklet of "Plant Rules and Policies," and the distributing of this booklet to its employees. The Board concluded as to this booklet that it created the inference in the minds of new employees that the "Shop Committee was and is a creature of the [petitioner]." We do not believe that there is any evidence of this in the record, for there is no testimony by any employee stating he was so misled. Moreover, it is clear from the record that the Committee did not object to such printing by the petitioner. In fact, notwithstanding that the employees as a group did not vote on this action, it appears that the Committee voluntarily gave these rules to management. The printing and distribution of materials by an employer for a labor organization is not in itself a violation of the Act. Cf. Wayside Press, Inc., v. National Labor Relations Board, 9 Cir., 1953, 206 F.2d 862.
29
Next we turn to a review of the structure and governing rules of the Committee which the Board found to be further evidence of control and domination by petitioner. These rules, set forth in detail above, admittedly did not protect Committee members from petitioner's inherent power to discharge them, did not provide for a written agreement between petitioner and its employees and did not provide for general meetings of the employees or membership dues. We agree with the Board that without such provisions the Committee lacks the organizational strength and degree of independence which might be desirable. Nonetheless, the record clearly shows that these rules were drawn up solely by the employees. Furthermore, there is no actual evidence of domination of the Committee by petitioner. In view of the foregoing, we agree with the court in Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., supra, 221 F.2d at page 170, where in a closely similar factual situation, it stated:
30
"These acts do no more than evidence the presence of potential means for interference and support, a possibility that is always present to some degree in an employer-employee relationship. But, without evidence of the realization of that potential, they do not furnish a substantial factual basis for an unfair labor practice finding."
31
Without proof of actual domination, we believe the Board erred in basing its finding of employer domination on the possible inadequacy of the rules under which the Committee functioned.
32
The final portion of evidence upon which the Board relied is the payment by petitioner to the five members of the Committee for time spent on meetings with management, payment to the employees when their meetings with the Committee went beyond the lunch period, and use of plant property for Committee meetings with management and with the employees. Before proceeding further, it must be noted that support of this type, as the Board stated, has been regarded only as "an aspect of control." See National Labor Relations Board v. H. E. Fletcher Co., 1 Cir., 1939, 108 F. 2d 459. In the cases cited by respondent there existed, in addition to evidence of such support, other acceptable evidence of support and domination which is not true in this case.
33
Here, moreover, payments made to employees by petitioner in the above situations were of a minimal amount. For example, the record shows that Committee meetings with management were normally called at two o'clock and remained in session from fifteen minutes to two hours. The official quitting time being three-thirty o'clock, a greater portion of the payments made to the Committee members were permissible under § 8(a) (2).6 As to payments made by petitioner to employees when their meetings went beyond the lunch hour, this too is not formidable evidence of support and domination. It appears by stipulation in the record that only "some" of these meetings ran from five to fifteen minutes over the regular lunch hour.
34
Finally, the use of petitioner's machine shop during the lunch hour for general employee meetings and the use of the president's office as the location of Committee meetings with management round out the facts about which the Board concluded:
35
"* * * In sum, the [petitioner] has made the functions of the Shop Committee possible by enabling them to take place on its property, with the use of such facilities as are needed, and by payments for time spent both during and after working hours. By such subsidies, the [petitioner] remains in a position to assure its domination over the Shop Committee."
36
We believe that the use of company property, and even time, for employee meetings, in the circumstances of this case, does not constitute substantial evidence on the record as a whole of support or domination. Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., supra; National Labor Relations Board v. Valentine Sugars, 5 Cir., 1954, 211 F. 2d 317. This evidence shows no more than cooperation by petitioner and a possibility of company control. However, "neither mere cooperation, preference nor possibility of control constitute unfair labor practices; and the Board may not infer conduct that is violative of the Act from conduct that is not, unless there is a substantial basis, in fact or reason, for that inference." Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., supra, 221 F.2d at page 168. The sections of the Act before us were "not enacted to prohibit or penalize courteous and friendly, or even generous, actions on the part of employers." National Labor Relations Board v. Valentine Sugars, supra, 211 F.2d at page 320.
37
The respondent cites many cases in support of the decision of the Board. But, as the Board stated in its conclusions, "no two cases [in this field] are altogether alike, and each must be judged by the totality of its own facts." Here, as opposed to many of the cases cited by respondent, the totality of the facts does not constitute substantial evidence of support or domination.
38
A decree will be entered setting aside the order of the Board.
Notes:
1
"1. The Shop Committee
"The Shop Committee is set up under the following rules:
"1. The Committee shall act as representatives of the employee and not as sole bargaining agents.
"2. The limitations of the powers vested in the committee shall be determined by the majority of the shop employees.
"3. In the event that a committee member is found guilty of negligence in the performance of his duties, he shall, by a majority vote of the employees, be asked to relinquish his position as a committee member.
"4. The initial or present committee shall serve for a period of one (1) year. Upon the expiration date of the one year period, two of the present committee members shall be retained for an additional period of six months. The remaining three (3) positions of the committee shall be voted upon for a one year period.
"5. The committee shall be subject to report to the shop employees all matters of discussion with the management, which pertains to the welfare of the shop employees, excepting that information which in the opinion of the committee, may prove to be detrimental to the efficient operation of said committee.
"6. In the event of employment termination, the unexpired term of a committee member shall be filled by the losing candidate who received the largest number of votes.
"7. The committee shall report to the employees on the very next scheduled working day following a meeting with management to convey to the employees any information regarding the progress being made in connection with tentative agreements to be reached upon by management and the employees.
"The Shop Committee will meet once a month at a regular time to be selected by management and committee."
2
The record only shows that some typing was done by "somebody upstairs in the office." It neither indicates where the paper used by the Committee came from, nor who did the typing. As to the source of the paper, one witness testified that it could have been scraps of paper that were used for ballots
3
Although the only detailed findings were made by the trial examiner in his intermediate report, since they were adopted by the Board in its decision and order, they will be referred to as findings of the Board
4
Although these circumstances, having occurred prior to April 21, 1955, the beginning of the six month statutory period, cannot be the basis of findings of unfair labor practices, the Board correctly concluded that they can be used as background shedding light on the character of the Committee and of the petitioner's conduct after April 21, 1955
5
"Sec. 8. * * *
"(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. * * *"
6
It was estimated by counsel for the respondent in oral argument before us that payment by petitioner to members of the Committee for meetings that went beyond the workday amounted to seventy-five cents
39
MAGRUDER, Chief Judge (concurring).
40
The record contains no history of antiunion bias by this company. At an election conducted by the Board on October 7, 1952 (stated at the oral argument to have been a "consent election"), the United Steelworkers Union failed to win a certification by the Board as the bargaining representative of the employees in Coppus Engineering Corporation. This is the union which filed the charges in the instant proceeding.
41
It must not be forgotten that the employer, too, has a legitimate interest in having an established channel of communication between his employees and management, the only limitation being that the employer is forbidden to use his economic power in any way to fetter the free choice by his employees of their representative.
42
Therefore, after the employees had rejected the outside union at the election in October, 1952, it does not seem to me that the company was open to criticism when its president, later in that year, suggested to the men that they form a permanent committee with which the management might deal. This is quite apart from the fact that this suggestion was an event which occurred more than six months prior to the filing of the charges of unfair labor practices in the present case (see the proviso in § 10(b) of the Act).
43
No doubt, strong argument could be made that the resulting Shop Committee was an inherently weak bargaining representative, and a feeble instrument for conducting bitter economic warfare, as contrasted with a union affiliated with a strong national labor organization. But it may be that the employees at this particular plant did not feel the need of any different type of bargaining representative. The choice was theirs, and the Act guarantees to them freedom to exercise that choice, unimpeded by employer interference or coercion. If the employees should freely choose a different bargaining representative, there is no basis in the record for an inference that the company would drag its feet in resistance to recognition of such a new bargaining representative, as the law requires. However, the statute does not make it the duty of the employer, nor a function of the Board, to "baby" along the employees in the direction of choosing an outside union as their bargaining representative.
44
In view of the inherent weakness of this Shop Committee as a bargaining representative of the men, perhaps it can truly be said that the management representatives hold the trump cards in any collective bargaining negotiations. But I do not think that the evidence as a whole warrants the inference that the company dominated or interfered with the formation or administration of the Shop Committee, within the meaning of § 8(a) (2) of the Act. Therefore, that part of the Board's order requiring the company to "disestablish" the Shop Committee, "or any successor thereto," as the recognized representative of its employees, certainly should not be enforced by this court.
45
But § 8(a) (2) also forbids an employer to throw his strength on to the scales by contributing "financial or other support" to any labor organization; and sometimes such a contribution of support, not amounting to "domination," may justify a Board remedial order in negative terms directing the company to cease and desist from the forbidden practice of furnishing such support. See, generally, The Carpenter Steel Co., 76 N.L.R.B. 670, 671-74 (1948).
46
However, in the present case the instances of "support" relied on border on the trivial; and I doubt whether the Board would have issued any order against the company had it realized that it could not go the whole way and order the disestablishment of the Shop Committee. On the principle of "de minimis" I am content that on the employer's petition we set aside the Board's order in its entirety, and that the Board's cross-petition for enforcement of its order be denied.
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 30, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ANTHONY HENDERSON,
Plaintiff-Appellant,
v. No. 05-1473
(D.C. No. 04-CV-219-EWN-BNB)
ECHOSTAR COMMUNICATIONS (D. Colo.)
CORPORATION; CYNTHIA
ROBBINS; THERESA HOWELL;
ELLEN BRUNSWICK; MEGAN
PRATER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Plaintiff, Anthony Henderson, appearing pro se, appeals from the district
court’s order granting summary judgment in favor of defendants. Mr. Henderson
alleged that he was illegally discharged because of his disability in violation of
the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”). 1 We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. Background Facts
Since the parties are familiar with the facts we discuss only briefly here the
facts relevant to Mr. Henderson’s appeal. Viewed in the light most favorable to
Mr. Henderson, the party opposing summary judgment, the record reveals the
following. Mr. Henderson was hit by a car when he was thirteen years old and
suffered a closed head injury. As a result, he continues to experience motor
problems, in particular a lack of coordination and tremor in his right hand. It
appears from the record that his head injury may also have resulted in certain
mental disabilities. However, Mr. Henderson admits that he only learned that he
may suffer from a mental disability after he stopped working for defendant
1
The district court also dismissed Mr. Henderson’s claim of illegal
retaliation in violation of the ADA and claims brought under the Family Medical
Leave Act. However, Mr. Henderson does not challenge that portion of the
district court’s decision. Since Mr. Henderson is proceeding pro se, we review
his appellate filings liberally. See Beedle v. Wilson, 422 F.3d 1059, 1063
(10th Cir. 2005). A liberal construction of his brief reveals challenges only to the
district court’s finding that he was not disabled and its refusal to consider
evidence submitted after the magistrate judge made his recommendation.
-2-
EchoStar Communications Corporation (“EchoStar”) and that the only medical
problem he disclosed to EchoStar was the lack of coordination and tremor in his
right hand.
Mr. Henderson began working for EchoStar in January 2000 in its customer
service representative (“CSR”) department. He told the company about the
problem with his right hand during the interview process. However, he worked in
the CSR department without incident until November 2001 when he transferred to
customer service support (“CSS”). During Mr. Henderson’s tenure in the CSS
department, EchoStar became dissatisfied with his performance. The company
required its CSS employees to maintain a 90% rate of productivity, but
Mr. Henderson never met that standard. In June 2002, Mr. Henderson asked
EchoStar to lower the productivity rate applicable to him due to his “medical
condition.” Rec. Tab 34, Ex. C. He also provided a report of a neurological
exam that he had done in 1995. According to the report, Mr. Henderson’s
“neurological examination [was] normal except for the tremor involving primarily
the right hand.” Id. Tab 34, Ex. D at 3. The report concluded: “I do not think
[Mr. Henderson] should be trained or work in a job that requires fine coordination
of the right hand. Although the patient is able to type he is not able to write.” Id.
EchoStar rejected Mr. Henderson’s proposal to lower its productivity
standards. Instead, Mr. Henderson was put on a performance plan that required
-3-
him to increase his productivity rate by 10% each week until he reached the
required rate of 90%. However, Mr. Henderson’s productivity rate never exceeded
43%. Moreover, his error rate consistently exceeded EchoStar’s limit. Mr.
Henderson admits that aside from asking EchoStar to lower his productivity rate,
he did not request any other accommodations due to his medical condition. He
also admits that he was perceived as having an attendance problem due to the time
off that he took in order to attend an insurance course.
On August 5, 2002, EchoStar informed Mr. Henderson that it was
terminating his employment. Mr. Henderson asked to be transferred back to the
CSR department, but EchoStar refused his request. Mr. Henderson subsequently
filed suit against EchoStar claiming that he was fired because he is disabled.
EchoStar maintains that Mr. Henderson was fired based on an extensive
documentation of poor performance.
II. Order Granting Summary Judgment
Upon recommendation of the magistrate judge, the district court dismissed
Mr. Henderson’s ADA claim. The court determined that Mr. Henderson failed to
provide evidence that, at the time of his employment with EchoStar, he was
disabled within the meaning of the ADA. The court also found that
Mr. Henderson produced no evidence that he was qualified for the job with or
without a reasonable accommodation or that he was discriminated against because
-4-
of a disability. Relying on Butler v. City of Prairie Village, Kansas, 172 F.3d 736
(10th Cir. 1999), the court concluded that Mr. Henderson failed to establish a
prima facie case of discrimination under the ADA. The court also rejected
Mr. Henderson’s claim that his cognitive problems with reading, coordination,
memory, and analytical problem-solving rendered him disabled. The court found
that there was no evidence that he experienced those problems while working at
EchoStar or that EchoStar was ever made aware that he had any mental
disabilities.
Finally, the district court refused to consider additional medical evidence
that Mr. Henderson submitted with his objections to the magistrate judge’s
recommendation. The court reasoned that considering new evidence “would
frustrate the process of having a magistrate judge make a recommendation,
because a litigant who is displeased with the recommendation could always place
before the district judge material which was never before the magistrate judge.”
Rec. Tab 46 at 1.
On appeal, Mr. Henderson challenges the district court’s conclusion that he
was not disabled within the meaning of the ADA when he worked for EchoStar.
He also argues that the court should have considered medical evidence of his
disability regardless of when it was submitted.
III. Discussion
-5-
“We review a district court’s grant of summary judgment de novo, using the
same standards applied by the district court.” Baca v. Sklar, 398 F.3d 1210, 1216
(10th Cir. 2005). Viewing the evidence and reasonable inferences drawn from the
evidence in the light most favorable to the nonmoving party, we will affirm a
grant of summary judgment only where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law,” Fed. R. Civ. P. 56(c).
After considering Mr. Henderson’s arguments and conducting a de novo
review of the record, we find no reversible error in the district court’s decision
that Mr. Henderson was not disabled as that term is defined in the ADA.
Although the record contains some evidence that Mr. Henderson may suffer from
certain cognitive deficiencies, it is undisputed that EchoStar was not made aware
of any such impairments until after Mr. Henderson was fired. On the other hand,
the record is replete with evidence of Mr. Henderson’s substandard performance
while he was working in EchoStar’s CSS department. Accordingly, we affirm the
dismissal of Mr. Henderson’s ADA claim for substantially the same reasons relied
on by the district court.
We also affirm the district court’s decision not to consider the additional
evidence that Mr. Henderson submitted with his objections to the magistrate
-6-
judge’s recommendation. In reviewing a magistrate judge’s recommendation,
“[t]he district judge may . . . receive further evidence, or recommit the matter to
the magistrate judge with instructions.” Fed. R. Civ. P. 72(b) (emphasis added);
see also 28 U.S.C. § 636(b)(1). This language commits the decision of whether to
receive additional evidence to “the sound discretion of the district court.”
Doe v. Chao, 306 F.3d 170, 183 n.9 (4th Cir. 2002), aff’d, 540 U.S. 614 (2004);
see also Drew v. Dep’t of Corr., 297 F.3d 1278, 1289 n.4 (11th Cir. 2002)
(explaining that a district court has discretion to refuse supplemental evidence not
put before a magistrate judge). Under the abuse-of-discretion standard, “a trial
court’s decision will not be reversed unless the appellate court has a definite and
firm conviction that the lower court made a clear error of judgment or exceeded
the bounds of permissible choice in the circumstances.” Bryant v. Farmers Ins.
Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (quotation omitted).
The additional evidence that Mr. Henderson argues should have been
considered consists of medical records from the accident when he was thirteen,
other medical records detailing his treatment after a bicycle accident in 2002, and
a report of a neuropsychological evaluation completed in 2003. Having reviewed
the record and the parties’ arguments in light of the abuse-of-discretion standard,
-7-
we cannot say that the district judge “made a clear error of judgment or exceeded
the bounds of permissible choice” in refusing to consider the additional evidence. 2
IV. The Individual Defendants
To avoid future confusion, we will address an issue not raised by either of
the parties — the dismissal of the individual defendants. The docket sheet reveals
that defendants Cynthia Robbins, Theresa Howell, Ellen Brunswick, and Megan
Prater were never served with process in this action. On August 18, 2005, the
magistrate judge issued an Order to Show Cause why the Complaint should not be
dismissed against the individual defendants for failure to prosecute. After
receiving Mr. Henderson’s response to that order, the magistrate judge
recommended that the individual defendants be dismissed without prejudice.
However, in an apparent oversight, the district court never acted upon that
recommendation. Instead, the court granted summary judgment to all the
defendants based on the motion that EchoStar filed solely on behalf of the
company and dismissed the entire case with prejudice.
It is not clear whether the district court’s dismissal of the individual
defendants was on the merits or based on Mr. Henderson’s failure to prosecute.
2
We also point out that even if the district court had accepted the additional
evidence, Mr. Henderson’s ADA claim would nonetheless have been dismissed,
as the court noted that “the new material would not change the result in this
case.” Rec. Tab 46 at 1.
-8-
However, on appeal “[w]e are free to affirm a district court decision on any
grounds for which there is a record sufficient to permit conclusions of law, even
grounds not relied upon by the district court.” United States v. Sandoval, 29 F.3d
537, 542 n.6 (10th Cir. 1994) (quotation omitted). We conclude that the district
court’s reasons for granting summary judgment to EchoStar are equally applicable
to the individual defendants. Thus, we affirm on the merits the district court’s
dismissal with prejudice of defendants Robbins, Howell, Brunswick, and Prater.
The district court also denied Mr. Henderson’s motion to proceed in forma
pauperis (“IFP”) on appeal. Mr. Henderson has renewed his request to proceed
IFP in this court. Having reviewed the record and Mr. Henderson’s arguments, we
conclude that he has not raised “a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n,
115 F.3d 809, 812 (10th Cir.1997) (quotation omitted). We therefore deny his
request to proceed IFP.
The judgment of the district court is AFFIRMED and Mr. Henderson’s
motion to proceed IFP is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-9-
|
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0036p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner-Appellant, -
QUINN HAMILTON,
-
-
-
No. 05-5614
v.
,
>
JACK MORGAN, Warden, -
Respondent-Appellee. -
N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 03-00275—William J. Haynes, Jr., District Judge.
Argued: January 26, 2006
Decided and Filed: January 24, 2007
Before: SILER, BATCHELDER, and MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,
for Appellant. David H. Findley, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee. ON BRIEF: Michael C. Holley, R. David Baker, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. David H. Findley, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
SILER, J., delivered the opinion of the court, in which BATCHELDER, J., joined. MOORE,
J. (pp. 8-14), delivered a separate dissenting opinion.
_________________
OPINION
_________________
SILER, Circuit Judge. Petitioner Quinn Hamilton appeals the district court’s grant of
summary judgment in favor of Respondent Warden Jack Morgan (hereinafter “the State”) on his
habeas corpus petition, pursuant to 28 U.S.C. § 2254, seeking relief from a state court conviction
for armed robbery and evading arrest. Because the decision of the Tennessee courts to allow prior
testimony of a witness deemed unavailable for trial was neither “contrary to” nor “an unreasonable
application of” federal law, we affirm the denial of Hamilton’s writ.
1
No. 05-5614 Hamilton v. Morgan Page 2
I. Background
In February 1997, Quan Shelton reported to Nashville police that two men robbed him of a
gold necklace and $550 in cash. Detective Shellie Malone, investigating the crime, met with Shelton
and took descriptions of the alleged perpetrators. Using those descriptions, she generated from a
police database photographs of black males. Shelton failed to identify the older suspect but
identified juvenile Mario Woodard.
Police subsequently arrested Woodard, who agreed to cooperate. He identified Quinn
Hamilton as the other suspect. Based on that information, Detective Malone again met with Shelton
and showed him a photographic line-up of six men, which included a photograph of Hamilton.
Shelton “immediately” identified Hamilton.
At Hamilton’s preliminary hearing, Shelton testified that he was walking down the street
alone when two men accosted him. He stated that a younger man was on a bicycle, but that an older
man approached him, put a gun to his stomach, and removed his gold necklace. The older man then
reached into Shelton’s pockets, demanded money, and threatened to kill Shelton. Shelton had $550
in cash, which the older man took. Shelton identified Hamilton as the older man, and Woodard as
the younger. He also stated that he had joined the armed services and would be reporting for basic
training in August 1997.
Later, at a suppression hearing, Shelton testified that, from a photographic lineup, he
identified Hamilton as the man who robbed him and that Detective Malone did nothing to indicate
Hamilton’s photograph as the man who robbed him. He further identified Hamilton in the
courtroom. Hamilton’s attorney was present at both hearings and cross-examined Shelton.
In January 2000, a few days before Hamilton’s first trial date, the State filed a motion
seeking to declare Shelton unavailable and requesting the court to allow his prior testimony to be
admitted at trial. In support of its motion, the State filed a letter dated January 6, 2000, from Captain
Elizabeth W. Watson, Shelton’s company commander. The letter stated that Shelton was at that time
stationed in Germany, but had twice been AWOL. For that reason, Captain Watson declined to
support his attendance at Hamilton’s trial. In response to the State’s motion, the trial court ordered
a transcript of Shelton’s suppression hearing testimony to be prepared. The trial was continued until
May 22, 2000.
On April 14, 2000, the State filed a second motion to have Shelton declared unavailable and
requesting that his prior testimony be admitted. Attached to this motion was another letter from
Captain Watson stating that Shelton would be deploying to Kosovo for six months on April 28,
2000, and that he would be unavailable for trial. The trial court granted this motion and ruled that
the State would be able to introduce Shelton’s testimony at the preliminary hearing and at the
suppression hearing as substantive evidence at Hamilton’s trial.
Again Hamilton’s trial was continued. A few days before the new trial date of January 8,
2001, the State filed a third motion to declare Shelton unavailable. In relevant part, this motion
stated that:
6. Around the beginning of November [2000], Mr. Shelton returned to Germany
from Kosovo. He immediately began having discipline problems including being
absent-without-leave.
7. From conversations with Mr. Shelton’s commander prior to the Christmas
holidays, the State learned that Mr. Shelton would not be allowed to travel and in
fact, did not wish to travel.
No. 05-5614 Hamilton v. Morgan Page 3
8. On January 2, 2001, the State learned that the situation had changed. Mr. Shelton
was willing to travel if he could go through Atlanta, Georgia. His commander stated
that he would be allowed to travel, but it was too late for any flights through Atlanta.
Since that date, the State has been unable to contact Mr. Shelton.
The State respectfully submits that Mr. Shelton is beyond the reach of Tennessee’s
subpoena power. Only by his full cooperation and mature decisions and behavior on
his part could the logistical problem of getting Mr. Shelton to Nashville for this trial
be solved. Because of his location and behavior, the problem remains unsolved. The
State of Tennessee still wishes to prosecute [the Defendant] and asks that the Court
grant this motion.
The State presented no documents or evidence in support of the motion. Nonetheless, the
trial court granted the State’s motion and admitted Shelton’s prior testimony at trial.
On January 8, 2001, Hamilton was tried in Tennessee state court on four charges, including
the armed robbery of Shelton. The State introduced transcripts of Shelton’s prior testimony.
Woodard testified that he saw Hamilton holding a gun and saw him rob Shelton. Woodard testified
that he was “sure” Hamilton was the robber and denied any participation. Detective Malone testified
regarding the police investigation and the results of the photographic line-ups. The jury returned
a guilty verdict on two of the four charges - evading arrest and the armed robbery of Shelton. The
court sentenced Hamilton to seven and nineteen years, respectively, to run consecutively, for a total
sentence of twenty-six years.
Hamilton timely appealed his armed robbery conviction, arguing that he was deprived of his
federal Sixth Amendment right of confrontation when the trial court declared Shelton unavailable
and admitted his prior testimony. The Tennessee Court of Criminal Appeals (TCCA) denied relief.
Subsequently, the Tennessee Supreme Court summarily dismissed Hamilton’s petition.
Hamilton then filed a habeas petition under 28 U.S.C. § 2254 in the district court, raising the
same Confrontation Clause claim. The district court granted Hamilton permission to serve certain
interrogatories and requests for production on the State regarding the “unavailability” question and
later to amend the record. The district court denied the petition for habeas corpus, but it granted
Hamilton a certificate of appealability on the Confrontation Clause issue.
II. Analysis
A. Standard of Review
We review the legal conclusions of the district court sitting in habeas de novo and the factual
findings of both the state trial and appellate courts for clear error. Brumley v. Wingard, 269 F.3d
629, 637-38 (6th Cir. 2001) (internal citations omitted). Because Hamilton’s habeas petition was
filed after April 24, 1996, our review is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 1996, Pub. L. No., 104-132, 110 Stat. 1214 (1996). See Calvert v. Wilson,
288 F.3d 823, 827 (6th Cir. 2002). AEDPA provides that a federal court may not grant a petition
for writ of habeas corpus unless the state court adjudication of the claim “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law” as
determined by the Supreme Court. Id.; 28 U.S.C. § 2254(d).
The issues of the unavailability of the witness and the reasonableness of the State’s efforts
to produce the witness are parts of the Confrontation Clause under the Sixth Amendment. Although
our court does not have a published opinion on the standard of review for such a question, other
circuits have held that these questions are mixed questions of law and fact and reviewed de novo.
No. 05-5614 Hamilton v. Morgan Page 4
See, e.g., Barrett v. Asevedo, 169 F.3d 1155, 1163 (8th Cir. 1999)(en banc); McCandless v. Vaughn,
172 F.3d 255, 265 (3d Cir. 1999). We, therefore, adopt that standard.
B. The State’s Efforts to Procure Witness Shelton for Trial Were Reasonable
The threshold issue for consideration is Hamilton’s complaint that the State did not make a
good faith effort to obtain Shelton for trial. Hamilton primarily points to the State’s third motion
to declare Shelton unavailable, which was based on the prosecutor’s conversations with Shelton’s
commander revealing that Shelton would not be allowed to travel due to discipline problems and
that Shelton did not desire to travel, and to information developed on January 2, 2001, that Shelton
was willing to travel to the United States, but only if he were routed through Atlanta.
The Confrontation Clause of the Sixth Amendment strives to ensure that a criminal defendant
may have a jury assess the prosecution’s witnesses “face to face.” Mattox v. United States, 156 U.S.
237, 242-43 (1895); U.S. Const. amend. VI. (“[I]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”). Thus, the prosecution may not
substitute former testimony for live testimony unless the government first demonstrates that the
witness remains unavailable for trial proceedings. Ohio v. Roberts, 448 U.S. 56, 65 (1980),
overruled on other grounds, Crawford v. Washington, 541 U.S. 36 (2004). The unavailability
exception contains two requirements. First, the exception mandates that the witness’s testimony was
given at previous judicial proceedings against the same defendant which was subject to cross-
examination by that defendant. Crawford, 541 U.S. at 54 (“[T]he common law in 1791 conditioned
admissibility of an absent witness’s examination on . . . a prior opportunity to cross-examine. The
Sixth Amendment therefore incorporates [that] limitation[].”). Second, a witness cannot be deemed
unavailable for purposes of the exception unless the government has made a good faith effort to
obtain her presence at the trial proceedings. Roberts, 448 U.S. at 74.
Roberts further refined the good faith standard, explaining that good faith efforts are context-
specific:
The law does not require the doing of a futile act. Thus, if no possibility of procuring
the witness exists . . . “good faith” demands nothing of the prosecution. But if there
is a possibility, albeit remote, that affirmative measures might produce the declarant,
the obligation of good faith may demand their effectuation. The lengths to which a
prosecution must go to produce a witness is a question of reasonableness. The
ultimate question is whether the witness is unavailable despite good-faith efforts
undertaken prior to trial to locate and present that witness. As with other evidentiary
proponents, the prosecution bears the burden of establishing this predicate.
Id. at 74-75 (internal citations and quotations omitted).
If the desired witness is beyond the subpoena power of the trial state but an established
procedure of voluntary cooperation exists, then the government must go to reasonable lengths to
utilize that procedure to locate, contact, and arrange to reasonably transport the witness. Barber v.
Page, 390 U.S. 719, 720 (1968), considered the constitutionality of the trial court’s admittance of
preliminary hearing testimony of a witness who at the time of trial was incarcerated in a
federal prison in Texas. The state in Barber made no efforts to procure the witness for trial after
ascertaining that he was in a federal prison outside Oklahoma, the prosecuting state. Id. at 723.
Although the previously accepted rule was that confrontation is unnecessary if a witness - outside
the jurisdiction of the trial court - could not be compelled to trial, the Court discredited that view.
Id. It noted that a federal statute grants federal courts the power to issue writs ad testificandum at
the request of state prosecutors, and that the United States Bureau of Prisons permits federal
prisoners to testify in state court criminal proceedings pursuant to writs ad testificandum issued out
No. 05-5614 Hamilton v. Morgan Page 5
of state courts. Id. at 724. The state prosecution’s failure to pursue the witness was unreasonable,
because “the possibility of a refusal is not the equivalent of asking and receiving a rebuff.” Id.
(internal citations and quotations omitted). Thus Barber held that “a witness is not ‘unavailable’
for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial
authorities have made a good-faith effort to obtain his presence at trial.” Id. at 724-25; see also
Brumley, 269 F.3d at 641 (finding a lack of good faith where the prosecution failed to utilize the
Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings
to secure a witness housed in prison in a different state).
If, however, the witness is beyond the subpoena power of the prosecuting state and no
established means of communication and voluntary cooperation exist for procuring the witness, the
government arguably need not even seek a rebuff. See Mancusi v. Stubbs, 408 U.S. 204 (1972). In
Mancusi, a victim who testified at the first trial left the country and became a permanent resident
of Sweden. At the second trial, the state issued a subpoena to the victim’s last known address in
Texas. Mancusi compared the availability of procedures and policies detailed in Barber allowing
state prosecutorial authorities to compel the attendance of witnesses residing in other states with the
lack of availability of such procedures for witnesses living in other countries. Id. at 212. Because
no such procedures existed, the Court stated that “Tennessee . . . was powerless to compel his
attendance . . . either through its own process or through established procedures.” Id.
Considered in toto, the relevant evidence supports a finding of reasonableness with respect
to the prosecution’s efforts. First, Hamilton does not identify any previously established means of
procuring Shelton to testify at trial, unlike the statutory procedures available to the state in Barber
and Brumley. In contrast to the witness in Barber, Shelton was serving in the army overseas; he was
not incarcerated in a federal prison in a different state. Therefore the available statutory procedures
for securing incarcerated witnesses for trials in other states do not apply to Shelton. Moreover,
besides the “procedure” of contacting Shelton’s commanding officer in Germany and requesting
Shelton’s presence at trial, neither Hamilton nor the State identifies any predetermined policies or
procedures that the State could – or should – have utilized to bring Shelton to Tennessee for
Hamilton’s trial.
Second, the State worked diligently to produce Shelton, right up until the time of trial. On
January 2, 2001, the prosecution learned that Shelton was willing to travel if he could go through
Atlanta, Georgia. However, Shelton’s commander advised that it was too late to1 arrange any flights
for Shelton from Germany through Atlanta in the days remaining before trial.
Hamilton insists that the State unreasonably abandoned its efforts to arrange Shelton’s
presence after Shelton agreed to travel to the United States. He avers that rather than investigating
commercial flights and travel plans that would include a layover in Atlanta, the State “gave up.”
He argues that a number of possible explanations that the State might offer for failing to produce
Shelton at trial - inter alia, that the expense of last-minute international travel was prohibitive, that
Shelton’s condition on flying through Atlanta constituted a rejection of the State’s offer, or that the
1
These facts were taken from the State’s third motion to declare the witness unavailable and to use his former
testimony at trial. The dissent relates several more detailed facts, which have been discovered through the interrogatories
before the district court on the petition for a writ of habeas corpus. Although the recitation of some of the facts by the
dissent are not erroneous, they were not facts which were known to the Tennessee courts when they made their decisions.
Some of the facts which subsequently were produced in the district court through the interrogatories are of some use in
buttressing Hamilton’s case, and other facts are useful in supporting the position of the State that it proceeded in good
faith. For example, the motion to declare the witness unavailable did not relate that the prosecutor had spoken to Shelton
on January 2, 2001, although the interrogatory indicates that the prosecutor had talked to Shelton on that date. However,
the interrogatory also shows that the prosecutor attempted to reach Shelton through the rest of the week up to the time
of the trial, but was unsuccessful in doing so. Likewise, the prosecutor indicated in his interrogatory that he attempted
to reach Shelton’s commander through the rest of the week but was unable to talk to him before the trial.
No. 05-5614 Hamilton v. Morgan Page 6
prosecutor was not responsible for the lateness of his efforts because he had been informed
previously that Shelton would not be able or willing to travel to trial - are excuses concocted to
obscure the State’s failure to take the steps necessary to protect Hamilton’s constitutional rights.
However, this argument lacks a factual basis and thus amounts to no more than mere speculation.
Indeed, the record reflects that the State did not abandon its efforts; rather, the State continued to
attempt to reach Shelton throughout the week leading up to Hamilton’s trial but was unable to speak
with him before the trial date. 2 Moreover, the motion by the State averred that it was too late to
arrange “any flights through Atlanta” prior to trial.
As the TCCA found, the State’s efforts here were reasonable, based in part on the steps
taken to secure Shelton months in advance of the trial. Those efforts were thwarted: first, by
Captain Watson’s refusal to permit Shelton to travel to the United States to testify due to his
previous discipline problems and absences without leave; and second, by Shelton’s deployment to
Kosovo for six months. The State’s first two motions to declare Shelton unavailable were
accompanied by letters from Shelton’s commanding officer indicating the difficulties with securing
his presence at trial. This evidence buttresses the State’s position, despite the absence of evidence
submitted to the trial court in support of its third and final motion to admit Shelton’s prior
testimony. See United States v. Sindona, 636 F.2d 792, 804 (2d Cir. 1980) (“Although it would
have been preferable to present the court with affidavits, the fact that trial counsel for the
Government presented the factual situation orally is not fatal. It is proper for the court to accept, in
its discretion, the representations of counsel with respect to the availability of a witness.”). 3
For these reasons, the TCCA correctly concluded that the State went to reasonable lengths
to secure Shelton’s presence at Hamilton’s trial.
C. The State Appellate Court Did Not Err in Finding the State’s Efforts Reasonable
Hamilton next argues that the TCCA erred in ruling that the State satisfied its obligations of
good faith and reasonableness in attempting to arrange for Shelton’s trial appearance. He complains
that the TCCA summarily concluded that Shelton was unavailable because his commanding officer
asserted he would return to Germany after his tour of duty in Kosovo, and because Germany was
beyond the subpoena power of the Tennessee criminal courts. Hamilton asserts that this conclusion
runs “contrary to” the law as established by Barber and Roberts4 because, in his view, there was an
established procedure for procuring Shelton’s voluntary cooperation. As discussed above, however,
2
This fact was developed through the interrogatories in the district court. The Tennessee trial court apparently
did not know that the State had continued to try to reach Shelton and his commander between January 2, 2001, and the
trial date, January 8, 2001.
3
The dissent correctly quotes the decision of the TCCA when it said: “Proof of the witness’s unavailability
must consist of more than the prosecutor’s own statements to the court.” Nevertheless, the TCCA considered the
prosecutor’s statements in his motion to declare the witness unavailable plus previous statements and letters which had
been filed on the prior dates on which the trial was set. It was up to the Tennessee courts to determine the type of proof
or statements required to carry the State’s burden of proof under the criteria from Ohio v. Roberts, 448 U.S. 56, 75
(1980). The dissent criticizes the TCCA for not having followed the burden of proof requirement from Roberts.
Although the TCCA did not cite that case, nevertheless, upon a full reading of the opinion, it is clear that the court
properly placed the burden on the prosecution to show the unavailability of Shelton.
4
In Roberts, the prosecution issued five subpoenas to the desired witness at her parents’ home, located within
the state of Ohio. 448 U.S. at 75.
No. 05-5614 Hamilton v. Morgan Page 7
no established procedure akin to those of Barber and Roberts existed in this case.5 The prosecutor,
on his own, initiated contact with Shelton and his commanding officer in Germany to obtain their
cooperation, which was not forthcoming. Rather, the findings of the TCCA are germane to the issue
of unavailability because they relate to the absence of an established procedure for obtaining
Shelton’s cooperation. The district court properly found that the TCCA’s decision was not contrary
to nor an unreasonable application of the governing federal law, even considering the supplemental
information added to the record before the district court.
AFFIRMED.
5
At oral argument, counsel for the defendant noted that the Walsh Act of 1964, 28 U.S.C. § 1783, literally
permits a United States court to order the issuance of a subpoena to a necessary witness in a foreign country:
A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before
it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign
country, or requiring the production of a specified document or other thing by him, if the court finds that
particular testimony or the production of the document or other thing by him is necessary in the interest of
justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible
to obtain his testimony in admissible form without his personal appearance or to obtain the production of the
document or other thing in any other manner.
28 U.S.C. § 1783(a).
However, the applicability of this act was not raised prior to oral argument; thus, we deem the issue waived.
See Bickel v. Korean Airlines Co., 96 F.3d 151, 153 (6th Cir. 1996) (“We normally decline to consider issues not raised
in the appellant’s opening brief.”) (internal quotations and citation omitted).
No. 05-5614 Hamilton v. Morgan Page 8
_______________
DISSENT
_______________
KAREN NELSON MOORE, Circuit Judge, dissenting. The key issue in this case is whether
the state trial court was justified in admitting Quan Shelton’s testimony from a preliminary hearing
and a suppression hearing because he was unavailable to testify at the January 8, 2001 trial. The
answer turns on whether the prosecutor (Bret Gunn) carried his burden of demonstrating that he
made reasonable, or “good faith,” efforts to obtain Shelton’s presence at the January 2001 trial.
Barber v. Page, 390 U.S. 719, 724-25 (1968) (“[A] witness is not ‘unavailable’ for purposes of the
. . . exception to the confrontation requirement unless the prosecutorial authorities have made a
good-faith effort to obtain his presence at trial.”).
Although the majority opinion correctly applies the de novo standard of review to the state
court’s determinations of unavailability and reasonableness, it concludes that the prosecutor met his
burden, notwithstanding the fact that he submitted no evidence in support of his motion to declare
Shelton unavailable. Because the majority’s decision effectively eradicates the burden of proof that
the Supreme Court established, I respectfully dissent.
I. THE REASONABLENESS OF GUNN’S EFFORTS
The reasonableness of a prosecutor’s efforts to procure a witness is context-dependent. As
the United States Supreme Court put it, “[I]f no possibility of procuring the witness exists (as, for
example, the witness’ intervening death), ‘good faith’ demands nothing of the prosecution. But if
there is a possibility, albeit remote, that affirmative measures might produce the declarant, the
obligation of good faith may demand their effectuation.” Ohio v. Roberts, 448 U.S. 56, 74 (1980).
See also McCandless v. Vaughn, 172 F.3d 255, 266 (3d Cir. 1999) (“Reasonableness . . . must be
evaluated with a sensitivity to the surrounding circumstances and the defendant’s interest in
confronting the absent witness.”); Cook v. McKune, 323 F.3d 825, 835 (10th Cir. 2003)
(“[E]valuation of reasonableness or good-faith effort ‘requires us to consider all the circumstances
rather than to apply a per se rule.’” (quoting Martinez v. Sullivan, 881 F.2d 921, 924 n.1 (10th Cir.
1989))). Likewise, when a witness is key to the prosecution’s case, more is demanded of the
prosecution than in cases involving the unavailability of a relatively unimportant witness. United
States v. Quinn, 901 F.2d 522, 529 (6th Cir. 1990) (citing United States v. Lynch, 499 F.2d 1011,
1022 (D.C. Cir. 1974)). Cf. Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir. 1989) (“Where the trial
court has curtailed a defendant’s cross-examination of a ‘star’ government witness . . . its ruling
must be more carefully scrutinized.”).
The majority opinion recognizes that context is key to this inquiry, but avoids confronting
inconvenient facts that are crucial to the context in which Bret Gunn, the prosecutor, acted.
To determine whether the prosecution’s efforts to procure Shelton’s presence at Hamilton’s
trial were reasonable, we must consider the circumstances surrounding Shelton’s absence. First, it
is vital to note that Shelton was the prosecution’s key witness for its aggravated robbery
charge—Shelton was the victim of the robbery, as well as the only witness who indicated that
Hamilton pointed a gun at him. This contextual fact mandates requiring much from the prosecution
before concluding that Shelton was, in fact, unavailable.
Next, we must consider the facts indicating why Shelton failed to appear at the January 2001
trial. Around December 1999, the prosecution learned that Shelton, who had since joined the
military, was stationed in Germany. J.A. at 376 (State’s Jan. 7, 2000 Mot. to Declare Witness
Unavailable ¶ 1). When Gunn contacted Shelton’s commanding officer prior to the January 2000
No. 05-5614 Hamilton v. Morgan Page 9
trial date, Gunn learned that Shelton had been absent without leave several times, and was
considered a flight risk. Id. ¶ 2; J.A. at 438 (Letter erroneously dated Jan. 6, 1999 from Capt.
Watson). For this reason, Shelton’s commanding officer did not permit him to testify in Nashville
in January 2000. Gunn moved the court to declare Shelton unavailable for the January 2000 trial,
and to permit the prosecution to read into the trial record Shelton’s prior testimony from the
preliminary hearing and suppression hearing. J.A. at 376 (State’s Jan. 7, 2000 Mot. to Declare
Witness Unavailable ¶ 2). Gunn attached correspondence with Shelton’s commanding officer as
evidence to support the motion, which the trial court granted. See J.A. at 48-49 (Tenn. Ct. Crim.
App. Op.). Ultimately, however, the trial court continued the trial date until May 22, 2000. J.A. at
379 (State’s Apr. 19, 2000 Mot. to Declare Witness Unavailable ¶ 3).
Gunn again contacted Shelton’s commanding officer, and again learned that Shelton would
be unavailable to testify at trial in May 2000, this time because Shelton would be deployed to
Kosovo until the fall of 2000. Id. ¶ 4. Again, Gunn moved the court to declare Shelton unavailable,
and again Gunn attached as evidence his correspondence with Shelton’s commanding officer. J.A.
at 381 (Letter dated Apr. 13, 2000 from Capt. Watson to B. Gunn). The court granted the motion,
J.A. at 383 (St. Crim. Ct. Order dated May 11, 2000), but later continued the trial date until January
8, 2001. J.A. at 385 (State’s Jan. 2, 2001 Mot. to Declare Witness Unavailable ¶ 5).
Gunn was aware that Shelton was due to return to Germany in October 2000 and that Gunn
would have several months between Shelton’s return and the trial to procure Shelton’s attendance.
In September 2000, Gunn received word from Shelton’s commanding officer that Shelton’s
discipline problems had vanished, and that Shelton “was being considered for some type of
commendation.” J.A. at 433-34 (Gunn’s Response to Interrogatory No. 9). Yet Gunn had only one
conversation with either Shelton or his commanding officer between Shelton’s return from Kosovo
and Christmas. J.A. at 430 (Gunn’s Response to Interrogatory No. 5). During this conversation,
Gunn learned that Shelton was neither willing, nor permitted by his commanding officer, to travel
to Nashville. J.A. at 434 (Gunn’s Response to Interrogatory No. 9). Nonetheless, Gunn contacted
Shelton again on January 2, 2001—just six days before trial—and then1 learned that Shelton was
allowed to travel and willing to do so if he could travel through Atlanta. Id. According to Gunn,
he spoke with Shelton’s commanding officer, who said it was too late to arrange for military travel2
through Atlanta. Id. The record reveals no inquiry into whether commercial flights were available.
Given the importance of Shelton’s testimony to the State’s case, as well as the importance
of Hamilton’s Sixth Amendment right to confront adverse witnesses at trial, it is difficult to see how
these efforts could be considered reasonable. We previously have characterized more zealous efforts
as “singularly unenthusiastic.” Quinn, 901 F.2d at 528. In Quinn, the government’s attempts
included two visits to an apartment, conversations with multiple people, and a drive-by and a visit
to another house. Id. Crucial to our determination in Quinn that the prosecution’s efforts did not
amount to good faith were (1) the short time between the beginning of efforts to procure the
1
That Gunn bothered to call Shelton back after purportedly receiving a categorical “no” from both Shelton and
Shelton’s commanding officer indicates that the pre-Christmas rejection likely was not as categorical as the State now
claims.
2
I find it deeply troubling that in the State’s Third Motion to Declare Shelton Unavailable, filed on January 2,
2001, the State omitted the distinction between military flights and commercial flights. Rather than specify that Shelton’s
commanding officer noted that it was too late to arrange for a military flight through Atlanta, the State’s motion says
that Shelton’s “commander stated that . . . it was too late for any flights through Atlanta.” J.A. at 386 (emphasis added).
Not until he responded to interrogatories in this habeas proceeding did Gunn clarify that “Mr. Shelton’s commanding
officer . . . [said] that there were no military flights that could accommodate a passenger to Atlanta from Germany in the
short time remaining before trial.” J.A. at 434 (Gunn’s Response to Interrogatory No. 9) (emphasis added). Gunn’s
failure to draw this distinction in his third motion and his failure to clarify the issue in addressing the state court strongly
suggests that his efforts were less than reasonable, and that is the issue that we must decide today.
No. 05-5614 Hamilton v. Morgan Page 10
witness’s attendance and the trial date and (2) the lack of follow-up with the people contacted. Id.
Similarly, Gunn’s attempts to procure Shelton’s attendance did not begin in earnest until just six
days before trial, and Gunn failed to follow up by looking into the availability of commercially
available flights. If the government’s efforts over the course of a week to locate the witnesses in
Quinn were unenthusiastic, the two phone calls that Gunn made to Shelton over the course of two
months were downright apathetic.
The majority brushes away these concerns, pointing to four putative reasons for concluding
that Gunn’s efforts were reasonable. First, the majority opinion claims that Hamilton has not
identified a previously established means of procuring Shelton. Maj. Op. at 5. This claim is
dubious, as it is directly undercut by two inconvenient facts: (1) Gunn bothered to contact the
military to inquire into Shelton’s availability and (2) Shelton’s commanding officer indicated that
Shelton would not be permitted to travel to Tennessee to testify because of his prior AWOL status.
These facts cut strongly against the majority opinion’s assertion that there were “no means of
communication and voluntary cooperation” sufficient to procure an enlisted soldier serving overseas
for testimony at trial. Were the majority correct, either (1) Gunn would have been unable to initiate
such contact or (2) the commanding officer’s reply would have been a terse, “We don’t allow
that–ever.”3
The majority distinguishes Barber v. Page, 390 U.S. 719 (1968), on the basis that in this
case, the State lacked a statutory basis to compel Shelton’s presence at trial. In so doing, the
majority opinion conflates the “established procedures” mentioned in Mancusi v. Stubbs, 408 U.S.
204, 212 (1972), with statutory procedures. However, the Supreme Court has rejected the argument
that “because the State would have had to request an exercise of discretion on the part of federal
authorities, it was under no obligation to make such a request.” Barber, 390 U.S. at 724. Further,
no case holds that procedures are not “established” for purposes of this analysis unless they are
embodied in a statute. I can see no reason that the absence of a statutory procedure to compel
Shelton’s presence at trial should relieve the prosecution of its duty to make a good-faith effort to
bring Shelton to the trial in Nashville. As noted above, apparently Gunn also understood his duties
to be more robust. Otherwise, why would he even have tried to contact Shelton after Shelton had
gone overseas with the military?
Next, the majority claims that the prosecution “worked diligently to produce Shelton, right
up until the time of trial.” Maj. Op. at 5. The only effort supporting the asserted diligence is a
phone call to Germany within a week of the trial date. As noted above, the record does not indicate
that the prosecution explored the availability of commercial flights, and the extent of follow-up with
Shelton or his commanding officer is unclear at best.4 I cannot accept the notion that an isolated
phone call within a week of trial constitutes diligence.
Third, the majority opinion asserts that “the State continued to attempt to reach Shelton
throughout the week leading up to Hamilton’s trial but was unable to speak with him before the trial
3
Further, Captain Watson’s January 6, 2000 letter explicitly states that an established means of communication
and voluntary cooperation existed when it notes that the American Red Cross contacted her “in reference to a subpoena
from the State of Tennessee for Private Shelton to appear in court as a witness.” J.A. at 438.
4
In his response to interrogatories, Gunn indicated that he “continued to try and reach Mr. Shelton’s
commanding officer through the rest of the week [of January 2, 2001] but . . . was unable to talk with him again before
the trial on Monday, January 8, 2001.” J.A. at 434 (Gunn’s Response to Interrogatory No. 9). For some reason, Gunn
did not mention these efforts during the January 5, 2001 pretrial hearing, at which the trial court granted the State’s
motion to declare Shelton unavailable. J.A. at 417-25 (Pretrial Hr’g Tr.). Perhaps the efforts referred to in the
interrogatory response occurred during the weekend between Friday, January 5 and Monday, January 8. It is unclear
why this would be the case, though, as the court had already declared Shelton unavailable on January 5.
No. 05-5614 Hamilton v. Morgan Page 11
date.” Maj. Op. at 6. As indicated previously, I am unable to find credible support for this assertion
in the record. See supra note 4.
Finally, the majority opinion points to the prosecution’s efforts to procure Shelton’s
attendance at the January 2000 and May 2000 trial dates as evidence of reasonable efforts to bring
Shelton to the January 2001 trial. Maj. Op. at 6. The majority misconstrues the issue. At issue in
this case is the reasonableness of the prosecution’s efforts to obtain Shelton’s presence at the
January 2001 trial. While the prosecution’s efforts anent the earlier trial dates are part of the
context in which we determine the prosecution’s good faith, they cannot, in and of themselves,
establish that the prosecution’s lackluster efforts to get Shelton to testify at the January 2001 trial
were reasonable.
Accordingly, none of the majority opinion’s proffered reasons support its conclusion that
Gunn’s efforts to protect Hamilton’s right to cross-examine Shelton were reasonable.
II. HABEAS STANDARD
Of course, erroneously concluding that the prosecution’s efforts were reasonable is of no
consequence unless the state court’s decision was contrary to clearly established Supreme Court
precedent or an unreasonable application of such precedent to the case at bar. See 28 U.S.C.
§ 2254(d)(1). In this case, the Tennessee Court of Criminal Appeals (TCCA)’s analysis was both
contrary to, and an unreasonable application of, clearly established Supreme Court precedent.
When the TCCA considered this case, the controlling precedent was Ohio v. Roberts, 448
U.S. 56 (1980),5 which clearly requires that “the prosecution bears the burden of establishing” that
a witness is unavailable. Id. at 75. The TCCA does not clearly recognize that it is the prosecution
that has the burden of persuasion with regard to unavailability. The closest the state court comes
is its statement that “Proof of the witness’s unavailability must consist of more than the prosecutor’s
own statements to the court.” J.A. at 50 (Tenn. Ct. Crim. App. Op. at 4). In any event, it is clear
that the TCCA failed to apply the Roberts standard.
As the majority opinion twice acknowledges, see Maj. Op. at 3, 6, the prosecution provided
no evidence—no phone records, no letter correspondence, not even an affidavit—supporting its
motion to declare Shelton unavailable to testify at the January 8, 2001 trial.6 This, too, is a fact that
the TCCA recognized. J.A. at 50 (TCCA Op. at 4). But the TCCA affirmed the trial court’s
decision to grant the State’s motion anyway, and thus failed to place the burden of proof on the
prosecution, as Roberts requires. By failing to place the burden of proving Shelton’s unavailability
on the State, the TCCA applied a standard that is contrary to clearly established Supreme Court
precedent.
5
Although the Supreme Court subsequently overruled Roberts in Crawford v. Washington, 541 U.S. 36 (2004),
we apply Roberts because Crawford post-dates the TCCA’s opinion. See Brumley v. Wingard, 269 F.3d 629, 638 (6th
Cir. 2001) (“In reviewing a state court decision under [§ 2254], we look only to the Supreme Court holdings that existed
at the time of the state court’s decision.” (citing Williams v. Taylor, 529 U.S. 362, 412 (2000))).
6
The majority opinion, while acknowledging this lack of evidence, cites United States v. Sindona, 636 F.2d 792,
804 (2d Cir. 1980), for the proposition that the court may accept representations of counsel in lieu of evidence regarding
a witness’s availability. Maj. Op. at 6. Setting aside the conflict between this proposition and the standard the TCCA
applied, see Maj. Op. at 6, n.3, I sincerely doubt that Sindona is valid law on this point. Although the Second Circuit
decided Sindona six months after the Supreme Court announced the burden-of-proof requirement in Roberts, the Sindona
court cited Bailey v. Southern Pacific Transportation Co., 613 F.2d 1385 (5th Cir. 1980)—a case decided before
Roberts—in support of the proposition the majority opinion quotes. As Bailey is not viable on this point in light of
Roberts, neither is Sindona. In any event, a 1980 out-of-circuit case is certainly not binding on us, and we should not
follow it.
No. 05-5614 Hamilton v. Morgan Page 12
The TCCA, as well as the majority opinion, attempts to paper over this problem by pointing
to the evidence that the State supplied in support of its earlier motions to declare Shelton unavailable
to testify. To the extent that the TCCA relied on the evidence that the State had submitted in support
of its motions to declare Shelton unavailable for the January 2000 and May 2000 trial dates, this is
an objectively unreasonable application of Roberts.
The unreasonableness of this analysis becomes clear once we consider what the previously
proffered evidence actually demonstrates. The January 2000 evidence demonstrates that in January
2000, Shelton’s disciplinary record led the military to conclude that he was a flight risk, and that the
military would not let him travel at that time because he was considered a flight risk. Likewise, the
evidence in support of declaring Shelton unavailable for the May 2000 trial shows that Shelton
would be deployed in Kosovo from April through October 2000. None of this previously proffered
evidence demonstrates in any way that Shelton would be unavailable to testify in January 2001.
Indeed, neither of the reasons for the military’s previous refusals applied in January 2001, as Shelton
had returned from deployment to Kosovo and was no longer considered a flight risk. The evidence
attached to the previous motions may indicate that bringing Shelton to Nashville to testify would
be difficult, but difficulty is hardly tantamount to unavailability. By relying on evidence that bears
infinitesimal, if any, relevance to whether Shelton was available to testify in January 2001, the
TCCA unreasonably applied Roberts’s burden-of-proof standard.
The majority opinion bends over backwards to accommodate the TCCA’s decision to ignore
Roberts’s burden-of-proof requirement, claiming that “[i]t was up to the Tennessee courts to
determine the type of proof or statements required to carry the State’s burden of proof under the
criteria from Ohio v. Roberts.” Maj. Op. at 6, n.3. Not so. The majority cites no authority for this
bewildering proposition of law, and for good reason: the majority’s position completely eradicates
the Roberts standard. According to the majority, state courts are free to undercut a burden-of-proof
requirement established by the Supreme Court by allowing a prosecutor to sustain his burden with
no evidence. Similarly, according to the majority, the state is free to conclude that a constitutionally
required burden of proof is met when the government references, but does not include, evidence that
is plainly irrelevant to the issue in question. The majority’s unprecedented deference to the state
courts effectively erases the burden-of-proof requirement from Roberts, and with it, the Supremacy
Clause from the text of the Constitution. This I cannot countenance.
III. HARMLESS ERROR
Finally, I believe these errors were not harmless, and accordingly, we should reverse the
district court’s judgment. “On collateral review, an error is deemed harmless unless it ‘had a
substantial and injurious effect or influence in determining the jury’s verdict.’” Stapleton v. Wolfe,
288 F.3d 863, 867 (6th Cir. 2002) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). If
the court is uncertain, but has “‘grave doubt’ as to the harmlessness of the error, it ‘should treat the
error, not as if it were harmless, but as if it affected the verdict . . . .’” Id. (quoting O’Neal v.
McAninch, 513 U.S. 432, 435 (1994)).
Additionally, when evaluating the harmlessness of admitting prior testimony in violation of
the Sixth Amendment, courts consider whether admitting the testimony had a substantial and
injurious effect or influence on the jury, not whether the lack of cross-examination had such an
effect. As we have previously indicated, “the proper standard by which to gauge the injurious
impact of the admission of constitutionally infirm evidence is to consider the evidence before the
jury absent the constitutionally infirm evidence.” Brumley, 269 F.3d at 646 (emphasis added) (citing
Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999); Stoner v. Sowders, 997 F.2d 209, 213 (6th
Cir. 1993)).
No. 05-5614 Hamilton v. Morgan Page 13
In Tennessee, aggravated robbery is a robbery “[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly
weapon.” TENN. CODE ANN. § 39-13-402(a)(1). As noted previously, Shelton was the key witness
in the aggravated robbery case—indeed he was the victim of the alleged robbery—and the only
witness who testified that Hamilton pointed a gun at him. Without Shelton’s prior testimony, the
prosecution’s case would have been extremely weak, consisting solely of testimony from Mario
Woodard, who was unable to remember the details of the alleged robbery without leading questions:
Q: Can you describe the person that he [Hamilton] robbed?
A: No.
Q: Well, was it a man or a woman?
A: I guess a man.
Q: Well, I mean, were you there?
A: I wasn’t there, but I seen—I seen like the end of it.
[. . .]
Q: All right, and what was the first thing that you saw take place between the victim
and Quinn?
A: I didn’t see nothing.
J.A. at 201-02 (Trial Tr. at 116-17).
Although Woodard eventually recalled some aspects of the transaction after notable
prompting from the prosecutor,7 he never testified that he saw Hamilton point a gun at Shelton, an
element of aggravated robbery. The closest he came was his testimony that he saw “Quinn
[Hamilton] run towards the other way with a gun in his hand,” apparently after the alleged robbery.
J.A. at 201 (Trial Tr. at 116). However, even this testimony is vague, as Woodard provided no
indication of either the distance or the time elapsed between the alleged robbery and his perception
of Hamilton’s holding a gun. Due to these omissions, we have no idea when Woodard claimed to
have seen the gun. Additionally, the trial transcript is peppered with indications that Woodard had
a criminal past that included felonious possession of a weapon, J.A. at 206 (Trial Tr. at 121), and
that Woodard had a powerful motive to testify against Hamilton while downplaying his own role
in the robbery, J.A. at 205 (Trial Tr. at 120), 207-08 (Trial Tr. at 122-23).
The trial record without Shelton’s testimony is hardly the stuff of which an open-and-shut
case of aggravated robbery is made. Perhaps a reasonable jury could have convicted Hamilton
because Woodard testified that he saw Hamilton run away from Shelton while carrying a gun.
Nonetheless, it is difficult to see how the admission of prior testimony from the victim, and sole
witness who offered direct evidence of an element of aggravated robbery, could not have had a
substantial and injurious effect or influence upon the jury’s verdict. Because, under harmless error
analysis, we consider whether the errantly admitted evidence had such an influence (and not whether
a reasonable jury could have voted to convict), I cannot see how this error could be harmless.
IV. CONCLUSION
Because the state courts did not follow clearly established Supreme Court precedent and
because the error almost certainly influenced the jury’s verdict, the district court should have granted
Hamilton’s petition for a writ of habeas corpus. I respectfully dissent.
7
That this prompting was necessary demonstrates just how weak the prosecution’s case would appear to a jury
without Shelton’s testimony. I emphasize it for this reason only.
|
637 F.2d 24
24 Fair Empl.Prac.Cas. 1286,24 Empl. Prac. Dec. P 31,415Diego MAS MARQUES, Plaintiff, Appellant,v.DIGITAL EQUIPMENT CORPORATION, and Digital Equipment GmbH,Defendants, Appellees.
No. 80-1222.
United States Court of Appeals,First Circuit.
Submitted Sept. 12, 1980.Decided Dec. 17, 1980.
Diego Mas Marques on brief pro se.
Ronald M. Green, Susan S. Savitt, Philip M. Berkowitz and Epstein Becker Borsody & Green, P.C., New York City, on brief for defendants, appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
1
Diego Mas Marques, a United States citizen living in Germany, alleges employment discrimination by Digital Equipment GmbH (Digital GmbH), a West German corporation that rejected his applications for an accounting or clerical position in Germany in 1977 and thereafter. According to Mas Marques, Digital GmbH has a policy of preferring German nationals for employment, and classifies jobs according to sex and age, as evidenced by its newspaper advertisements. Invoking Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17, Mas Marques filed suit in the federal district court of Massachusetts against Digital GmbH and its parent company, Digital Equipment Corporation (Digital Corp.), a Massachusetts corporation.1 The district court granted summary judgment for the defendants and denied a motion for reconsideration. From these rulings Mas Marques appeals. We affirm.
THE GRANT OF SUMMARY JUDGMENT
2
Digital Corp. manufactures and sells computers and computer components and has facilities in the United States, Puerto Rico and Ireland; its wholly owned subsidiary Digital GmbH manufactures, repairs and distributes computers and related products in West Germany. The district court granted summary judgment to both defendants on the grounds that Digital Corp. did not exercise sufficient control over Digital GmbH to be liable for its alleged discrimination and that there was no personal jurisdiction over Digital GmbH. We merely elaborate on the district court's well-reasoned opinion, which is reported at 490 F.Supp. 56 (D.Mass.1980).
3
With respect to Digital Corp., the district court correctly determined that the affidavits submitted in support of summary judgment negate its liability.2 Although Mas Marques alleged in his complaint that Digital Corp. is "fully responsible for (Digital GmbH's) general policy of employment discrimination," the defendants' affidavits establish that Digital GmbH personnel policies, advertising, and decisions are formulated without the involvement of Digital Corp.3 Moreover, the affidavits depict a genuine parent-subsidiary relationship in which there are separate corporate structures, facilities, work forces, business records, bank accounts, tax returns, financial statements, budgets and corporate reports. Although Digital GmbH does purchase fifty percent of its inventory of computers and computer components from Digital Corp. and occasionally contracts with Digital Corp. for accounting or bookkeeping services, the affidavits assert that Digital Corp. does not control Digital GmbH's sales goals or marketing strategies, and sales catalogues and advertising are done separately. On the basis of the defendants' affidavits, there was no recognized theory upon which Digital Corp. could be held responsible under Title VII for the acts of Digital GmbH. The two companies would not, in our opinion, be a single enterprise or employer under the test developed by the National Labor Relations Board and applied by some courts in Title VII cases. E. g., Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (considering (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977); Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1183-84 (E.D.N.Y.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638 (N.D.Ga.1977). Nor would Digital Corp. be liable on the theory that the parent-subsidiary relationship is a sham, see Hassell v. Harmon Foods, Inc., 336 F.Supp. 432, 433 (W.D.Tenn.1971), aff'd, 454 F.2d 199 (6th Cir. 1972), or that Digital Corp. so controls Digital GmbH as to make Digital GmbH its agent, see Linskey v. Heidelberg Eastern, Inc., supra, at 1183-84; EEOC v. Upjohn Corp., supra, at 638.
4
The district court was likewise correct in concluding that Mas Marques' opposition papers did not suffice to create a genuine issue of fact concerning Digital Corp.'s liability. In his two "oppositions" to summary judgment, which were unsworn and unsupported by affidavits, Mas Marques asserted a close relationship between Digital Corp. and Digital GmbH, but his statements about the corporate relationship were conclusory (e. g., the companies are "one and the same," their parent-subsidiary relationship is a "sham," Digital Corp. "impermissibly controlled" Digital GmbH, Digital management "takes its orders from" Digital Corp.). Even reading the pro se opposition papers liberally, in accordance with Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), and United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), they do not comply with Rule 56(e), Fed.R.Civ.P., which required Mas Marques to "set forth specific facts showing that there (was) a genuine issue for trial." Although Mas Marques, as a pro se litigant, may not have been aware of Rule 56(e) when he filed his first opposition, the defendants' reply memorandum put him on clear notice of the rule and the deficiencies of his initial response. When specific facts were not forthcoming in the second opposition, and no attempt to provide them or conduct discovery was made, see Fed.R.Civ.P. 56(f),4 the district court was well warranted in granting summary judgment for Digital Corp. See generally Palmigiano v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974). Mas Marques' promise to prove his general allegations about the relationship between Digital Corp. and Digital GmbH through corporate records at trial was simply not enough to require a trial as to Digital Corp. Hahn v. Sargent, 523 F.2d 461, 467 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976).5
5
With respect to the defendant Digital GmbH, the district court justifiably ruled that nothing in the defendants' affidavits would support the exercise of personal jurisdiction pursuant to Mass.G.L. c. 223, § 38, or c. 223A, § 3. The former provision permits service of process on a foreign corporation that is "engaged in or soliciting business in the commonwealth, permanently or temporarily." In Caso v. Lafayette Radio Electronics Corp., 370 F.2d 707, 712 (1st Cir. 1966), we interpreted Massachusetts law to allow resort to this provision only if a foreign corporation's activities affected Massachusetts commerce substantially or so affected the transaction at issue as to make Massachusetts an appropriate forum, and we held that the fact that a Massachusetts subsidiary of a New York corporation bought inventory partly from its parent, inter alia, did not support the exercise of jurisdiction over the out-of-state parent. See also Farkas v. Texas Instruments, Inc., 429 F.2d 849, 850 (1st Cir. 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1193, 28 L.Ed.2d 324 (1971); Wilson v. Holiday Inn Curacao, NV, 322 F.Supp. 1052, 1054 (D.Mass.1971). No Massachusetts decision after Caso convinces us that a Massachusetts court would invoke c. 223, § 38 to exercise jurisdiction over Digital GmbH simply because it purchased half its inventory and some bookkeeping and accounting services from its Massachusetts parent. Moreover, these factors did not make Digital GmbH amenable to suit under the Massachusetts long arm statute, Mass.G.L. c. 223A, § 3. Even assuming that Digital GmbH's purchase contracts with Digital Corp. amounted to the transaction of business in Massachusetts within the meaning of subsection (a) of c. 223A, § 3 ("transacting any business in this Commonwealth"), Mas Marques' cause of action for employment discrimination did not arise from Digital GmbH's transaction of business in Massachusetts, as required by the statute. Compare Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1084-85 (1st Cir. 1973). Nor did Mas Marques' claim fit within any of the other subsections of the long arm statute, c. 223A, § 3(b)-(g).6
6
Furthermore, Mas Marques presented nothing in his oppositions that supported the exercise of personal jurisdiction over Digital GmbH. In addition to the allegations noted above, he stated only that Digital GmbH "obtain(ed) all of its materials" directly or indirectly from Digital Corp. and did "all of its business through the control" of Digital Corp. Such generalities did not stand in the way of summary judgment for Digital GmbH. Cf. Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904-06 (1st Cir. 1980) (conclusory allegations as to corporate interrelationship not sufficient to confer personal jurisdiction under Puerto Rico's long arm statute).
THE DENIAL OF RECONSIDERATION
7
More than ten days after the district court granted summary judgment for the defendants, Mas Marques filed a "motion for reconsideration," which we construe as a motion to vacate judgment pursuant to Rule 60(b), Fed.R.Civ.P. In the motion, Mas Marques stated that he was enclosing an affidavit "to controvert the facts averred brought forward by Defendants in their motion for summary judgment," and urged that "(a)s a result of this motion and affidavit the facts described by Defendants concerning their respective corporate structures should not be taken as true." The affidavit contained the following statements pertinent to the relationship between Digital Corp. and Digital GmbH:
8
2. That Digital Corp. the parent fully controls Digital GmbH, that further the Corporation controls in full through data processing systems the sales of all the material and orders placed to and sold by Digital GmbH, that in addition it fully controls the marketing strategies of Digital GmbH by means of closely related management meetings by Digital Corp. in the United States.
9
3. That Digital Corp. was requested by the management of Digital GmbH to make a decision as to my employment application and that I was advised by Digital GmbH management officials that the corporation had reached the final denial of my application for employment for any positions. The contacts by those officials were made through telephone conversations and telex.
10
4. That corporate papers and finances are fully controled (sic) by Digital Corp. and that further for the purpose of control Digital Corp. transfers its management and technical employees to Digital GmbH to manage Digital GmbH.
11
5. Digital Corp. expressly controls the financial personnel policy of Digital GmbH and particularly the hiring and firing of United States citizens.
12
6. That it is systematically categorized most employment positions according to age, sex and national origin by Digital Corp. through Digital GmbH and fully under the control of the Corp. for the purposes of better finance results.
13
The affidavit was certified as "the truth to the best of our knowledge and belief" and was signed under the pains and penalties of perjury by Mas Marques and his wife Angelika, who represented that she had witnessed Digital's discrimination policies and was present at several meetings and had telephone contacts with Digital GmbH and Digital Corp. The district court denied the motion for reconsideration, stating that the affidavit "does not appear to be based upon personal knowledge as required by F.R.Civ.P. 56(e), nor does it appear that the plaintiff could have acquired such personal knowledge."
14
There was no error. Although some of the statements in the affidavit were more specific than those in the previously filed oppositions, most of them were not, as the district court noted, based upon personal knowledge. One possible exception is the statement in paragraph 3 to the effect that Digital GmbH officials told Mas Marques that Digital Corp. made the final decision not to hire him. We need not decide whether this statement satisfied the "personal knowledge" requirement of Rule 56(e) and would have been admissible in evidence, as also required by Rule 56(e). See Corley v. Life and Casualty Insurance Co. of Tennessee, 296 F.2d 449, 450 (D.C.Cir.1961); 6 Pt. 2 Moore's Federal Practice P 56.22(1), at 56-1322 & n.16 (2d ed. 1980). Nor need we decide whether such a statement, unaccompanied by disclosure of the identity of the Digital GmbH officials to whom Mas Marques supposedly spoke or the date of the conversation(s), would have been "sufficient evidence" to require a trial, if offered in timely opposition to the defendants' summary judgment motion, First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968), quoted in Hahn v. Sargent, supra, 523 F.2d at 464. Compare Williams v. Evangelical Retirement Homes, 594 F.2d 701, 704 (8th Cir. 1979). The fact remains that Mas Marques' affidavit was not offered prior to the entry of judgment; in addition, no explanation was given for the failure to present the affidavit or its contents earlier, and no claim was made that further facts became known to Mas Marques only after judgment had been entered. In these circumstances, particularly where Mas Marques should have been aware of the deficiencies in his case before the entry of judgment, relief under Rule 60(b) would not have been justified. Grounds for relief under Rule 60(b)(1), due to "mistake, inadvertence, surprise, or excusable neglect," were not presented.
15
(A) party cannot have relief under Rule 60(b)(1) merely because he is unhappy with the judgment. Instead he must make some showing of why he was justified in failing to avoid mistake or inadvertence .... A defeated litigant cannot set aside a judgment ... because he failed to present on a motion for summary judgment all of the facts known to him that might have been useful to the court.
16
11 Wright & Miller, Federal Practice and Procedure § 2858, at 170-73 (1973 ed.) (emphasis supplied). See Couch v. Travelers Insurance Co., 551 F.2d 958, 959-60 (5th Cir. 1977). Nor were there exceptional circumstances or obvious injustices warranting relief under Rule 60(b)(6). See Ackermann v. United States, 340 U.S. 193, 197-200, 71 S.Ct. 209, 211-212, 95 L.Ed. 207 (1950); Scola v. Boat Frances, R., Inc., 618 F.2d 147, 154-56 (1st Cir. 1980). In short, there was no abuse of discretion in the denial of the motion for reconsideration. See Pagan v. American Airlines, Inc., 534 F.2d 990, 993 (1st Cir. 1976).
CONCLUSION
17
For the reasons stated above, we uphold the district court's grant of summary judgment for want of jurisdiction and its denial of reconsideration. It is too late for appellant to try to redeem his case by asserting on appeal that the defendants committed perjury in their affidavits and by urging this court to request records from Digital Corp.7 As the judgment must be affirmed, we do not reach the question whether Title VII can be given extraterritorial application to alleged discrimination abroad.
18
Affirmed.
1
As the district court noted, Mas Marques did not bring suit under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. Moreover, he did not allege his age in his complaint or specifically allege that he was denied employment because of his age
2
Affidavits were submitted by Ronald Green, attorney for the defendants, Walter Wagner, Personnel Manager at Digital GmbH, and Seymour Sackler, Assistant General Counsel of Digital Corp
3
More specifically, the affidavits indicate that Digital GmbH's personnel policies and procedures are formulated by a European Personnel Policies Committee (staffed by employees of Digital International, a Swiss corporation, and its various subsidiaries), expanded and adapted to German law and custom by a German management team of Digital GmbH and implemented by Digital GmbH employees
4
Discovery never got off the ground in this case. The defendants served a notice that Mas Marques' deposition would be taken in Massachusetts, but Mas Marques declined to appear on the ground that he did not have the financial means to travel to Massachusetts. In his response to the notice of deposition, he suggested the deposition take place in Munich at a date to be agreed upon and requested the production of various records and documents at such oral examination. But there is no indication any deposition was ever taken or that Mas Marques made any further attempt at discovery
5
Apart from alleging generally that Digital GmbH and Digital Corp. should be treated as one, Mas Marques hinted in his opposition papers that Digital Corp. should be put to trial because it responded to an EEOC investigation and the EEOC issued a notice of right to sue Digital Corp. We have examined the letters from Digital Corp. to the EEOC and the EEOC letters and documents Mas Marques filed with the district court, and see nothing in them that would warrant a trial against Digital Corp. Although Digital Corp. expressed willingness to investigate Mas Marques' charges and to cooperate with the EEOC, it did not concede responsibility for the actions of Digital GmbH. And, although the EEOC issued a notice of right to sue Digital Corp., it did so at Mas Marques' request and does not appear to have made any determination that Digital Corp. would be responsible for Title VII violations by Digital GmbH
6
Mas Marques suggests that subsection (d) of Mass.G.L. c. 223A, § 3 is applicable to his case, but we fail to see how his cause of action arises from Digital GmbH's "causing tortious injury in this commonwealth." Compare Engine Specialties, Inc. v. Bombardier, Ltd., 454 F.2d 527, 529 (1st Cir. 1972)
7
Nothing in Shapiro v. United States, 335 U.S. 1, 33, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), or the passages at 247 (or 274) U.S. 259, 263, 264 (1927), cited by Mas Marques, would authorize this court to supplement the record on appeal by requesting records from Digital Corp. The record on appeal is confined to matters presented to the district court. See Fed.R.App.P. 10(b)
|
86 F.2d 737 (1936)
UNITED STATES
v.
ONE PACKAGE.
No. 62.
Circuit Court of Appeals, Second Circuit.
December 7, 1936.
Lamar Hardy, U. S. Atty., of New York City (Francis H. Horan and William *738 F. Young, Asst. U. S. Attys., both of New York City, of counsel), for the United States.
Greenbaum, Wolff & Ernst, of New York City (Morris L. Ernst, Alexander Lindey, and Eugene M. Kline, all of New York City, of counsel), for Dr. Hannah M. Stone, claimant-appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The United States filed this libel against a package containing 120 vaginal pessaries more or less, alleged to be imported contrary to section 305(a) of the Tariff Act of 1930 (19 U.S.C.A. § 1305 (a). From the decree dismissing the libel the United States has appealed. In our opinion the decree should be affirmed.
The claimant Dr. Stone is a New York physician who has been licensed to practice for sixteen years and has specialized in gynecology. The package containing pessaries was sent to her by a physician in Japan for the purpose of trying them in her practice and giving her opinion as to their usefulness for contraceptive purposes. She testified that she prescribes the use of pessaries in cases where it would not be desirable for a patient to undertake a pregnancy. The accuracy and good faith of this testimony is not questioned. The New York Penal Law which makes it in general a misdemeanor to sell or give away or to advertise or offer for sale any articles for the prevention of conception excepts furnishing such articles to physicians who may in good faith prescribe their use for the cure or prevention of disease. People v. Sanger, 222 N.Y. 192, 118 N.E. 637. New York Penal Law (Consol. Laws, c. 40) § 1145. The witnesses for both the government and the claimant testified that the use of contraceptives was in many cases necessary for the health of women and that they employed articles of the general nature of the pessaries in their practice. There was no dispute as to the truth of these statements.
Section 305(a) of the Tariff Act of 1930 (19 U.S.C.A. § 1305(a) provides that: "All persons are prohibited from importing into the United States from any foreign country * * * any article whatever for the prevention of conception or for causing unlawful abortion."
The question is whether physicians who import such articles as those involved in the present case in order to use them for the health of their patients are excepted by implication from the literal terms of the statute. Certainly they are excepted in the case of an abortive which is prescribed to save life, for section 305 (a) of the Tariff Act only prohibits the importation of articles for causing "unlawful abortion." This was the very point decided in Bours v. United States, 229 F. 960 (C.C.A.7), where a similar statute (Cr.Code, § 211 [18 U.S.C.A. § 334 and note]) declaring nonmailable "every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use," was held not to cover physicians using the mails in order to say that they will operate upon a patient if an examination shows the necessity of an operation to save life. And this result was reached even though the statute in forbidding the mailing of any article "intended for * * * producing abortion" did not, as does section 305(a) of the Tariff Act, qualify the word "abortion" by the saving adjective "unlawful." In Youngs Rubber Corporation v. C. I. Lee & Co., 45 F.(2d) 103 (C.C.A.2), Judge Swan, writing for this court, construed the mailing statute in the same way. In referring to the mailing of contraceptive articles bearing the plaintiff's trade-mark, he adverted to the fact that the articles might be capable of legitimate use and said, at page 108 of 45 F.(2d), when discussing the incidence of the mailing statute:
"The intention to prevent a proper medical use of drugs or other articles merely because they are capable of illegal uses is not lightly to be ascribed to Congress. Section 334 forbids also the mailing of obscene books and writings; yet it has never been thought to bar from the mails medical writings sent to or by physicians for proper purposes, though of a character which would render them highly indecent if sent broadcast to all classes of persons. * * * It would seem reasonable to give the word `adapted' a more limited meaning than that above suggested and to construe the whole phrase `designed, adapted or intended' as requiring an intent on the part of the sender that the article mailed * * * be used for illegal contraception or abortion or for indecent or immoral purposes."
*739 While Judge Swan's remarks were perhaps dicta, they are in full accord with the opinion of Judge Mack in Bours v. United States (C.C.A.) 229 F. 960, which we have already mentioned, and were relied on by the Court of Appeals of the Sixth Circuit when construing the mailing statute in Davis v. United States, 62 F. (2d) 473.
Section 305(a) of the Tariff Act of 1930 (19 U.S.C.A. § 1305(a), as well as title 18, section 334, of the U.S.Code (18 U.S.C.A. § 334), prohibiting the mailing, and title 18, section 396 of the U.S.Code (18 U.S.C.A. § 396), prohibiting the importing or transporting in interstate commerce of articles "designed, adapted, or intended for preventing conception, or producing abortion," all originated from the so-called Comstock Act of 1873 (17 Stat. 598), which was entitled "An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use."
Section 1 of the act of 1873 made it a crime to sell, lend, or give away, "any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion." Section 2 prohibited sending through the mails "any article or thing designed or intended for the prevention of conception or procuring of abortion." Section 3 forbade the importation of "any of the hereinbefore-mentioned articles or things, except the drugs hereinbefore-mentioned when imported in bulk, and not put up for any of the purposes before mentioned." All the statutes we have referred to were part of a continuous scheme to suppress immoral articles and obscene literature and should so far as possible be construed together and consistently. If this be done, the articles here in question ought not to be forfeited when not intended for an immoral purpose. Such was the interpretation in the decisions of the Circuit Courts of Appeal of the Sixth and Seventh Circuits and of this court in Youngs Rubber Corporation v. C. I. Lee & Co., when construing the statute forbidding an improper use of the mails.
It is argued that section 305(a) of the Tariff Act of 1930 (19 U.S.C.A. § 1305(a) differs from the statutes prohibiting carriage by mail and in interstate commerce of articles "intended for preventing conception or producing abortion" because in section 305(a) the adjective "unlawful" is coupled with the word "abortion," but not with the words "prevention of conception." But in the Comstock Act, from which the others are derived, the word "unlawful" was sometimes inserted to qualify the word "abortion," and sometimes omitted. It seems hard to suppose that under the second and third sections articles intended for use in procuring abortions were prohibited in all cases while, under the first section, they were only prohibited when intended for use in an "unlawful abortion." Nor can we see why the statute should, at least in section 1, except articles for producing abortions if used to safeguard life, and bar articles for preventing conception though employed by a physician in the practice of his profession in order to protect the health of his patients or to save them from infection.
It is true that in 1873, when the Comstock Act was passed, information now available as to the evils resulting in many cases from conception was most limited, and accordingly it is argued that the language prohibiting the sale or mailing of contraceptives should be taken literally and that Congress intended to bar the use of such articles completely. While we may assume that section 305(a) of the Tariff Act of 1930 (19 U.S.C.A. § 1305(a) exempts only such articles as the act of 1873 excepted, yet we are satisfied that this statute, as well as all the acts we have referred to, embraced only such articles as Congress would have denounced as immoral if it had understood all the conditions under which they were to be used. Its design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients. The word "unlawful" would make this clear as to articles for producing abortion, and the courts have read an exemption into the act covering such articles even where the word "unlawful" is not used. The same exception should apply to articles for preventing conception. While it is true that the policy of Congress has been to forbid the use of contraceptives altogether if the only purpose of using them be to prevent conception in cases where it would not be injurious to the welfare of the patient or her offspring, it is going far beyond such a policy to hold that abortions, which destroy incipient *740 life, may be allowed in proper cases, and yet that no measures may be taken to prevent conception even though a likely result should be to require the termination of pregnancy by means of an operation. It seems unreasonable to suppose that the national scheme of legislation involves such inconsistencies and requires the complete suppression of articles, the use of which in many cases is advocated by such a weight of authority in the medical world.
The Comstock Bill, as originally introduced in the Senate, contained the words "except on a prescription of a physician in good standing, given in good faith," but those words were omitted from the bill as it was ultimately passed. The reason for amendment seems never to have been discussed on the floor of Congress, or in committee, and the remarks of Senator Conklin, when the bill was up for passage in final form, indicate that the scope of the measure was not well understood and that the language used was to be left largely for future interpretation. We see no ground for holding that the construction placed upon similar language in the decisions we have referred to is not applicable to the articles which the government seeks to forfeit, and common sense would seem to require a like interpretation in the case at bar.
The decree dismissing the libel is affirmed.
L. HAND, Circuit Judge (concurring).
If the decision had been left to me alone, I should have felt more strongly than my brothers the force of the Senate amendment in the original act, and of the use of the word, "unlawful," as it passed. There seems to me substantial reason for saying that contraconceptives were meant to be forbidden, whether or not prescribed by physicians, and that no lawful use of them was contemplated. Many people have changed their minds about such matters in sixty years, but the act forbids the same conduct now as then; a statute stands until public feeling gets enough momentum to change it, which may be long after a majority would repeal it, if a poll were taken. Nevertheless, I am not prepared to dissent. I recognize that the course of the act through Congress does not tell us very much, and it is of considerable importance that the law as to importations should be the same as that as to the mails; we ought not impute differences of intention upon slight distinctions in expression. I am content therefore to accept my brothers' judgment, whatever might have been, and indeed still are, my doubts.
|
497 F.3d 673 (2007)
UNITED STATES of America, Appellee
v.
Thomas TAYLOR, Appellant.
No. 05-3125.
United States Court of Appeals, District of Columbia Circuit.
Argued March 9, 2007.
Decided August 14, 2007.
*674 Richard Seligman, appointed by the court, argued the cause and filed the briefs for appellant.
Robert E. Leidenheimer, Jr., Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S. Attorney.
Before: GARLAND and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Senior Circuit Judge WILLIAMS.
BROWN, Circuit Judge:
Appellant Thomas Taylor challenges his 18 U.S.C. § 922(g)(1) conviction, arguing that the charge should have been dismissed on statutory and constitutional speedy trial grounds and that in any case his trial was contaminated by improperly admitted evidence. For reasons detailed below, we reject his contentions and affirm his conviction.
I
On March 6, 2003, shortly before 9:00 A.M., a warrant squad from the U.S. Marshals Service went to 722 Quincy Street, N.W., to execute a parole warrant for Mr. Taylor. The officers knocked on the door, *675 and the appellant's grandmother, Mildred Alice Taylor, answered. Deputy Bob Haufmaster[1] said, "Thomas Taylor." Mrs. Taylor, who owned the house, responded "yes" and stepped aside, whereupon the officers entered. When they again asked for the appellant, Mrs. Taylor directed them downstairs.
While two of the officers remained with Mrs. Taylor, the rest proceeded downstairs to search. Deputy Andrew Fang lifted a blanket that covered a bed and peered underneath to see if Mr. Taylor was hiding there. Instead of a person, he found what he instantly recognized as a gun case.
The team eventually located the appellant in the basement bathroom and arrested him. Deputy Fang then extracted the case from beneath the bed and opened it, confirming it contained a loaded gun.
Shortly thereafter, Agent Jeffrey Meixner from the Bureau of Alcohol, Tobacco, Firearms and Explosives came to 722 Quincy Street to collect the gun. Mrs. Taylor gave him permission to look around. While downstairs, he noticed an ID and a checkbook sitting in plain view on a nightstand by the bed. He took custody of those materials and of the weapon.
Mr. Taylor was arrested for parole violation. Two months later, on May 27, 2003, he was indicted for possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). For reasons not relevant to our disposition, but apparently based at least in part on governmental negligence, Mr. Taylor was not arraigned until March 5, 2004. At that time, Mr. Taylor, through his attorney, orally moved for dismissal based on the delay.
This motion to dismiss was reduced to writing on May 3, 2004, and filed in conjunction with a motion to suppress the gun. Mr. Taylor argued the Speedy Trial Actspecifically 18 U.S.C. § 3161(b) and (j)required dismissal. The court took both motions under advisement on May 12 when the government submitted oppositions. The court denied the dismissal motion orally on August 5, and denied the suppression motion in writing the following day.
Meanwhile, the trial was scheduled to begin May 20 but was delayed. Mr. Taylor offered on May 20 to "waive his right to a speedy trial up until August 18th." Eventually the trial was rescheduled for August 10. That morning, Mr. Taylor moved for reconsideration of the order denying suppression, and the court denied the motion. The trial then began at last, and the jury convicted Mr. Taylor two days later, on August 12.
II
We consider first Mr. Taylor's argument that his interest in a speedy trial requires dismissal of the charges against him, addressing his statutory and constitutional arguments in turn.
A
Before the district court, Mr. Taylor moved to dismiss based on 18 U.S.C. § 3161(b), which limits the time between arrest and indictment.[2] Mr. Taylor has however not renewed this argument before us, and we treat it as abandoned. Instead, *676 he now seeks dismissal based on § 3161(c)(1), which requires a criminal defendant's trial to begin "within seventy days from the . . . indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs."
As Mr. Taylor did not make this argument below, we review the district court's decision not to dismiss (sua sponte) on § 3161(c)(1) grounds for plain error only. See Johnson v. United States, 520 U.S. 461, 464, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing FED.R.CRIM.P. 52(b)).[3] Under that standard of review, we will correct a district court's error only if (1) there is in fact an error to correct; (2) the error is "plain"; (3) it "affects substantial rights"; and (4) it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 466-67, 117 S.Ct. 1544 (alterations and internal quotation marks omitted).
The Speedy Trial Act excludes certain periods from its seventy-day clock, two of which are important here. First, we exclude any "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). If no hearing is held, this exclusion runs through "the day the court receives all the papers it reasonably expects to help it decide the motion." United States v. Saro, 24 F.3d 283, 292 (D.C.Cir.1994) (internal quotation marks omitted). Second, once that period expires, we exclude "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(J).
Mr. Taylor was indicted on May 27, 2003, but did not make his first appearance before the court until March 5, 2004. The Speedy Trial Act clock would normally start with that latter date, but at that appearance Mr. Taylor entered an oral motion to dismiss. We now join several of our sister circuits in holding that exclusion under § 3161(h)(1)(F) is triggered by written and oral motions alike. Accord, e.g., United States v. Broadwater, 151 F.3d 1359, 1361 (11th Cir.1998) (per curiam); United States v. Rodriguez, 63 F.3d 1159, 1164-65 (1st Cir.1995); United States v. Moses, 15 F.3d 774, 776 n. 3 (8th Cir.1994); United States v. Nixon, 779 F.2d 126, 130-31 (2d Cir.1985). Thus, we exclude March 5 through May 12, when the final papers related to Mr. Taylor's motions to dismiss and to suppress were filed. We then exclude the next thirty days, through June 11, based on § 3161(h)(1)(J). Under Zedner v. United States, ___ U.S. ___, 126 S.Ct. 1976, 1985, 164 L.Ed.2d 749 (2006), Mr. Taylor's attempted prospective waiver of his Speedy Trial Act rights on May 20 had no effect. Therefore, we begin counting on June 12 and continue counting through August 10, the day the trial began. See United States v. Harris, 491 *677 F.3d 440, 443 n. 1 (D.C.Cir. 2007) ("[A] logical consequence of not counting the date of indictment toward the seventy-day total is that we must count the date of trial. . . .").[4] That comes to sixty days, well within § 3161(c)(1)'s seventy-day limit. Hence, there was no Speedy Trial Act violation, and we deny Mr. Taylor's request that we remand with instructions to dismiss on this ground.
B.
In the alternative, Mr. Taylor seeks dismissal of the charge against him based on the Speedy Trial Clause of the Constitution. See U.S. CONST. amend. VI. We review claimed violations based on "four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).
As Doggett explained, "[s]imply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from `presumptively prejudicial' delay." Id. at 651-52, 112 S.Ct. 2686. Moreover, "as the term is used in this threshold context, `presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the [constitutional] enquiry." Id. at 652 n. 1, 112 S.Ct. 2686. "Depending on the nature of the charges," the Court noted, "the lower courts have generally found postaccusation delay `presumptively prejudicial' at least as it approaches one year." Id.
Here, the entire delay between indictment and trial barely exceeded one year. Assuming this is sufficient to trigger the Doggett inquiry, we must next "consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Id. at 652, 112 S.Ct. 2686. This is because "the presumption that pretrial delay has prejudiced the accused intensifies over time." Id. In this case, because the delay only just exceeded that bare minimum, the presumption has not "intensifie[d]" at all. Nor has Mr. Taylor been able to establish any actual prejudice, which the Court identified as including "oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the [accused's] defense will be impaired by dimming memories and loss of exculpatory evidence." Id. at 654, 112 S.Ct. 2686 (alteration in original) (internal quotation marks omitted). Because "presumptive prejudice cannot alone carry a Sixth Amendment claim," id. *678 at 656, 112 S.Ct. 2686, particularly in the weak form presented here, Mr. Taylor's claim fails.
III
Having determined dismissal is not required, we turn to Mr. Taylor's evidentiary arguments. He maintains the officers violated his Fourth Amendment rights by entering 722 Quincy Street without a reasonable belief he lived there and was present; exceeded the permissible scope of their search by looking under his bed; improperly opened the gun case without first obtaining a warrant; and seized various identifying materials without a warrant.
Deputy Fang testified that fugitives had been known to hollow out bedsprings as hiding places; thus, assuming the officers could enter the house, looking under the bed represented no violation, despite the fact Mr. Taylor would not have fit under the bed absent such modifications. See Maryland v. Buie, 494 U.S. 325, 332-33, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Also, Agent Meixner received permission from Mrs. Taylor to look around, and the ID and checkbook he seized were in plain view; therefore, absent antecedent violations, seizure of those items was proper even if we assume Mr. Taylor did not waive this argument. See FED. R. CRIM. P. 12(e) (waiver); Horton v. California, 496 U.S. 128, 134-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (plain view); United States v. Matlock, 415 U.S. 164, 169-71, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (consent). We now address Mr. Taylor's two remaining evidentiary arguments in greater detail.
A
Since the parole warrant contained no information regarding his residence, Mr. Taylor argues the officers had no reason to believe he was at 722 Quincy Street and hence no authority to enter. See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Other documents, such as Mr. Taylor's inmate record, do show the 722 Quincy Street address, but there is no evidence anyone in the warrant squad saw those documents.
Undoubtedly, this lacuna in the evidentiary record could easily have been filled. Mr. Taylor was a parolee. His parole agreement necessarily contained a current address, and his parole agent must have known where to find him. Officers executing an arrest warrant may enter a dwelling given "reasonable belief" that the suspect lives there and is present at the time. United States v. Thomas, 429 F.3d 282, 286 (D.C.Cir.2005). In Thomas, we upheld a search despite "the absence of testimony about where the marshals got Thomas' address," as (1) Thomas was a parolee, required to keep his current address on file, and (2) one of the warrant officers testified Thomas's address had been ascertained after an "investigation." Id. Crucially, we took the term "investigation" to indicate "`a systematic official inquiry'" as opposed to "a mere hunch, surmise, or suspicion." Id. (internal quotation marks omitted).
But here the government failed to comply even with Thomas's modest requirements. With the record devoid of proof the warrant squad arrived at 722 Quincy Street with the requisite reasonable belief, the search was improper unless some additional information gathered at the scene, prior to the officers' entry into the house, supported such a reasonable belief. Specifically, the question is whether the terse exchange between Deputy Haufmaster and Mrs. Taylor provided sufficient reason to believe Mr. Taylor lived at 722 Quincy Street and was currently present.
The colloquy at the door makes Marshal Will Kane from "High Noon" seem garrulous. (Deputy Haufmaster: "Thomas Taylor." *679 Mrs. Taylor: "Yes." Curtain.) Nevertheless, it is clear this brief dialogue satisfied the Payton standard. Mrs. Taylor recognized the men at her front door as law enforcement officers. Mot. Hr'g Tr. 6:13-16, May 12, 2004. At least one, she says, flashed his badge. Id. at 3:18-19. She interpreted the words, "Thomas Taylor," as an interrogative: Is Thomas Taylor here? She replied affirmatively.[5] After the officers entered, Deputy Haufmaster repeated, "Thomas Taylor," which Mrs. Taylor again took as a query: Where is Thomas Taylor? She responded, "He's in the basement."
This is sufficient for Payton and Thomas. Mrs. Taylor's initial response supported a reasonable belief that Thomas Taylor lived in the house, and the early hour alone sufficed to suggest he would be present, see Thomas, 429 F.3d at 286 (citing United States v. May, 68 F.3d 515, 516 (D.C.Cir.1995), and United States v. Terry, 702 F.2d 299, 319 (2d Cir.1983)). As it happened, Mrs. Taylor's subsequent comment that the appellant was in the basement reinforced the officers' already reasonable belief that he was present.
Undaunted, the appellant argues his case should really be controlled by Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). But Steagald is doubly inapposite. First, in that case, officers searched Steagald's home based on an arrest warrant for a separate person, Ricky Lyons. Id. at 206, 101 S.Ct. 1642. By contrast, here the police looked for Mr. Taylor in his own home, and an arrest warrant alone is sufficient to authorize the entry into a person's home to effect his arrest. Id. at 214 n. 7, 101 S.Ct. 1642 (quoting Payton, 445 U.S. at 602-03, 100 S.Ct. 1371). Second, Steagald involved the Fourth Amendment rights of a third-party homeowner, not those of the subject of the arrest warrant. Id. at 212, 101 S.Ct. 1642. Therefore, even if we treat Mrs. Taylor as the sole resident of 722 Quincy Street, Steagald limits the evidence that could be used against her, but not the evidence that can be used against the appellant. See United States v. Payner, 447 U.S. 727, 731-33, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980).
Thus, Mr. Taylor's argument on this point fails, and we affirm the district court's ruling: As Deputy Haufmaster's exchange with Mrs. Taylor at the threshold of the house supported a reasonable belief that Mr. Taylor lived at 722 Quincy Street and was present at the time, the officers' entry was proper.
B
In light of our holdings above, the warrant squad properly entered 722 Quincy Street, lifted the blanket, and seized the gun case, which was by then in plain view. But Mr. Taylor then argues Deputy Fang violated his Fourth Amendment rights by opening the case without a warrant or any valid exception to the warrant requirement.
Indeed, as a rule, even when officers may lawfully seize a package, they must obtain a warrant before examining its contents. See, e.g., Horton, 496 U.S. at 141 n. 11, 110 S.Ct. 2301; United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). However, the Supreme Court has suggested an important exception:
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers *680 (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.
Arkansas v. Sanders, 442 U.S. 753, 764-65 n. 13, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (dictum) (emphasis added).
Sanders decided which of two principles took precedence: the requirement that officers obtain a warrant before opening a package, as described in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), or the "automobile exception" to the warrant requirement, as described in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In the footnote quoted above, the Sanders majority suggested that with some packages, the precedence question would be moot, as there would be no reasonable expectation of privacy as to the contents in the first place. Addressing only those packages that sufficiently concealed their contents, Sanders held that the Chadwick rule took precedence. The Court later reversed course in California v. Acevedo, overturning Sanders with regard to the precedence order of the two rules, but Acevedo did not address the footnote's proposed exception. 500 U.S. 565, 579, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).
This court, sitting en banc, adopted the Sanders dictum as the law of the circuit in United States v. Ross, 655 F.2d 1159 (D.C.Cir.1981) (Ross I). That case asked whether, under Sanders, the "luggage rule" took precedence over the automobile exception only for large, durable containers, or for all containers, including paper bags. The majority held that the "unworthy container" doctrine was unworkable, and that the Sanders dictum "indicated when the nature of the container would justify immediate search." Id. at 1170. Thus, under Ross I, the privacy interest inherent in any closed container that did not satisfy the Sanders dictum would take precedence over the automobile exception.
Foreshadowing Acevedo, the Supreme Court overturned Ross I, holding that where an officer has probable cause to search a closed container in an automobile, the officer may open the container even without a warrant. United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (Ross II). However, Ross II in no way undercut the Sanders dictum; indeed, the Court recited that rule in a footnote, id. at 814 n. 19, 102 S.Ct. 2157, and based much of its analysis on the plurality opinion in Robbins v. California, which was limited to "container[s] that conceal[their] contents from plain view," id. at 822-23, 102 S.Ct. 2157 (citing Robbins, 453 U.S. 420, 427, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (plurality opinion)).
Thus, the Sanders exception remains the law in this circuit, Ross II notwithstanding. We accordingly reaffirm that gun cases and similar containers support no reasonable expectation of privacy if their contents can be inferred from their outward appearance. Applying this rule, we reject Mr. Taylor's argument regarding the gun case and hence affirm the district court's order denying his motion to suppress the gun.
IV
For the reasons described above, the district court's denial of Mr. Taylor's motions to dismiss and to suppress, as well as Mr. Taylor's conviction, are
Affirmed.
WILLIAMS, Senior Circuit Judge, concurring:
With respect to part III.B of the court's opinion, I find the discussion of which rule takes "precedence" confusing, but we all *681 agree that under the controlling cases the officers had probable cause to search and seize the gun case because, given the message sent by its exterior, it was contraband in plain view.
NOTES
[1] Several variations of the deputy's name appear in the record. He is variously called Hoffmaster, Hoffman, and Haufmaster.
[2] Mr. Taylor's motion to dismiss also cited 18 U.S.C. § 3161(j), violation of which results in sanctions but not dismissal. See id. § 3162(b). He has not pursued this argument on appeal.
[3] Arguments could be made for both higher and lower levels of deference. On one side, Mr. Taylor requests de novo review, citing Zedner v. United States, ___ U.S. ___, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). But to the extent Zedner can be read to establish that Speedy Trial Act violations automatically affect substantial rights, this rule applies only to failure by a district court to make explicit findings as required by 18 U.S.C. § 3161(h)(8), a provision not at issue in this case. See Zedner, 126 S.Ct. at 1989-90. At the other extreme, under § 3162(a)(2), a defendant's failure to "move for dismissal prior to trial" constitutes waiver of § 3161(c) claims. It is unclear whether Mr. Taylor's motion to dismiss based on a separate provision suffices to avoid waiver. In the end, however, all roads lead to Rome: As we find no error, much less a plain error, we would affirm regardless of how we read Zedner and § 3162.
[4] The government would have us exclude August 10 based on the motion for reconsideration Mr. Taylor entered that day. Such an approach would effectively extend the § 3161(c)(1) limit from seventy days to seventy-one. Suppose, for instance, a defendant is arraigned on March 1, so that trial must begin no later than May 10, seventy days later. Trial is instead scheduled for May 11, one day late. Prior to May 11, there is no violation. Under the government's proposed rule, if the defendant moves for dismissal on May 11 on speedy trial grounds, this excludes May 11 from the count, so that paradoxically the trial is now timely; conversely, if the defendant does not so move, then the seventy-day limit is waived under § 3162(a)(2). Thus, the defendant has no way to vindicate the Speedy Trial Act guarantee of trial within seventy days. In order to avoid a result clearly at odds with the statute, we must ignore pretrial motions filed on the day of the trial for Speedy Trial Act purposes; equivalently, we deem the Act violated when dawn breaks on the seventy-first day without a trial, regardless of what happens later that day.
[5] During her testimony at trial, Mrs. Taylor confessed she had had an "idea" why the officers had come to her house: Thomas had violated his parole. Trial Tr. 48:25 to 49:9, Aug. 10, 2004 (P.M.).
|
JOHNSON
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00065-CR
Carolyn Johnson, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. 376,971, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING
Appellant Carolyn Johnson was convicted of driving while intoxicated ("DWI").
See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex.
Rev. Civ. Stat. Ann. art. 6701l-1(b), since amended and codified at Tex. Penal Code Ann.
§ 49.04). The court sentenced her to 120 days in jail and assessed a $1000 fine, probating all the
jail time and all but $400 of the fine. In four points of error, appellant complains that the trial
court erred in refusing to appoint counsel to represent her on appeal, in failing to adequately
admonish her on the disadvantages of proceeding pro se, and in admitting an edited DWI
videotape into evidence. We will affirm the conviction.
BACKGROUND
Appellant retained an attorney to represent her at trial. After appellant was
sentenced, the trial court permitted the attorney to withdraw pursuant to his written contract with
appellant, which stated that "the legal fee does not include services or expenses for an appeal or
retrial of this matter." Appellant requested court-appointed counsel to defend her on appeal, but
the trial court found appellant was not indigent at a January 5, 1994 indigency hearing and denied
her request.
After retaining new counsel for her appeal, appellant raised four points of error.
Appellant contends that the trial court erred in: (1) failing to find she was indigent because she
received no assistance of counsel at the indigency hearing and because the court did not adequately
admonish her of the dangers and disadvantages of proceeding pro se; (2) overruling her oral
motion for new trial because she received no assistance of counsel at the indigency hearing and
because the court did not adequately admonish her of the dangers and disadvantages of proceeding
pro se; (3) allowing the State to edit the audio portion of a DWI videotape in a manner that
violated her rights to a fair trial; and (4) allowing the State to introduce into evidence any portion
of the DWI videotape created after she invoked her right to an attorney and her right to remain
silent.
DISCUSSION
We first address appellant's contention that the trial court committed reversible
error at the indigency hearing. Appellant's first two points of error are based on her claim that
a defendant is entitled to representation of counsel at an indigency hearing and that in the absence
of such representation, the trial court is required to admonish the defendant of the dangers of self-representation.
Appellant was represented by retained counsel at trial, but trial counsel withdrew
after appellant was sentenced. Appellant requested court-appointed representation and a free
statement of facts to appeal her DWI conviction. Article 26.04 of the Code of Criminal Procedure
outlines the procedure for determining a defendant's eligibility for court-appointed counsel.
Article 26.04 requires in pertinent part:
(c) A defendant who requests a determination of indigency and appointment of
counsel shall:
(1) complete under oath a questionnaire concerning his financial
resources;
(2) respond under oath to an examination regarding his financial
resources by the judge or magistrate responsible for determining
whether the defendant is indigent; or
(3) complete the questionnaire and respond to examination by the
judge or magistrate.
(d) Before making a determination of whether a defendant is indigent, the court
shall request the defendant to sign under oath a statement substantially in the
following form:
"On this _____ day of _________, 19___, I have been
advised by the (name of the court) Court of my right to
representation by counsel in the trial of the charge pending
against me. I certify that I am without means to employ
counsel of my own choosing and I hereby request the court
to appoint counsel for me. (signature of the defendant)"
Tex. Code Crim. Proc. Ann. art. 26.04(c), (d) (West 1989). In this case, the trial court complied
with Article 26.04. Appellant was granted a hearing on indigency and responded under oath to
the trial court's questions regarding her financial resources. Appellant also signed a form
acknowledging that she had been informed of her right to counsel and that she would be entitled
to a court-appointed attorney if found indigent. The trial court then determined that appellant was
not indigent and, thus, not entitled to court-appointed counsel for purposes of her appeal.
We must first determine whether a convicted defendant who was represented by
retained counsel at trial and who seeks a finding of indigency for purposes of appeal is entitled
to court-appointed counsel during an indigency hearing. Second, if the defendant is not entitled
to court-appointed counsel, we must determine whether the trial court is required to admonish a
defendant of the dangers and disadvantages of representing herself at an indigency hearing.
Appellant sought free legal counsel for purposes of appeal and not for purposes of
her indigency hearing. "The Sixth Amendment to the United States Constitution guarantees that
`[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.'" Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994). A
defendant--indigent or otherwise--is entitled to be represented by counsel in a criminal matter, but
only in an adversarial judicial proceeding. Tex. Code Crim. Proc. Ann. art. 1.051(a), (c) (West
Supp. 1995). The statute does not define adversarial judicial proceedings, but we note that, under
any definition, such proceedings necessarily commence at some point during the pretrial stages.
We must determine whether an indigency hearing constitutes a "critical stage" of adversarial
judicial proceedings so as to invoke the right to counsel.
Not every event following the inception of adversary judicial proceedings
constitutes a "critical stage" so as to invoke the right to counsel under the Sixth
Amendment. In assessing whether a particular stage of the pre-trial proceeding is
a "critical" one, the test utilized by the Court has called for examination of the
event in order to determine whether the accused required aid in coping with legal
problems or assistance in meeting his adversary. In essence, we must scrutinize
any pre-trial event with a view to ascertaining whether presence of counsel is
necessary to assure fairness and the effective assistance of counsel at trial, which
is, after all, "the core purpose of the counsel guarantee . . . , when the accused [is]
confronted with both the intricacies of the law and the advocacy of the public
prosecutor."
Green, 872 S.W.2d at 720-21 (citations omitted). Green involved pretrial proceedings, but the
rationale underlying the critical-stage concept applies equally to post-trial proceedings. The right
to counsel extends to the appellate process. Webb v. State, 533 S.W.2d 780, 783 (Tex. Crim.
App. 1987). Therefore, it logically follows that the critical-stage prerequisite to the right to
counsel also extends to post-trial proceedings.
Not every post-trial event is a critical stage invoking the right to counsel. The sole
purpose of an indigency hearing is to determine the purely factual matter of whether a defendant
can afford to employ counsel. See Tex. Code Crim. Proc. Ann. art. 1.051(b) (West Supp. 1995).
In the present case, the State called one witness to testify concerning a single issue--the reasonable
fee for an attorney to handle an appeal. It is apparent that the indigency hearing in this case was
not one in which appellant was "confronted with both the intricacies of the law and the advocacy
of the public prosecutor." Representation by counsel, although generally a good idea, would not
have significantly assisted appellant in answering the court's questions regarding her financial
resources. Appellant would have gained nothing by the presence of and lost nothing in the
absence of an attorney at her side during the indigency hearing. We thus hold under the present
facts that appellant was not entitled to have the trial court appoint counsel for her at the indigency
hearing.
We further conclude that appellant was not entitled to any admonishment from the
trial court concerning the dangers and disadvantages of self-representation at the indigency
hearing. Appellant maintains that Article 1.051(g) of the Texas Code of Criminal Procedure
imposes a mandatory duty upon the trial court to advise a defendant who wishes to waive her right
to counsel of the dangers and disadvantages of self-representation. Appellant complains that the
trial court gave her no warning of the dangers of proceeding without an attorney, nor did it secure
a waiver of counsel before the hearing commenced. Appellant further argues that Article 1.051(e)
of the Code of Criminal Procedure requires the court to provide ten days' notice to the defendant
if it intends to proceed with a matter without securing a written waiver or appointing counsel.
The United States Supreme Court in Faretta v. California, 422 U.S. 806 (1975),
held that an accused may waive his right to assistance of counsel and opt to represent himself at
trial after being informed of the dangers and disadvantages of self-representation. Id. at 835.
However, an admonishment as to the possible consequences of proceeding pro se need only be
given where the defendant contests guilt. Johnson v. State, 614 S.W.2d 116, 119 (Tex. Crim.
App. 1981) (opinion on rehearing); Cooper v. State, 854 S.W.2d 303, 304 (Tex. App.--Austin
1993, no pet.). In Johnson, the defendant entered a plea of guilty "voluntarily, knowingly, and
intelligently and did not contest his guilt." Johnson, 614 S.W.2d at 119. The court
acknowledged that the defendant had appeared in court without counsel but explained that the
requirement that the trial court admonish the accused of the dangers and disadvantages of self-representation is not automatically triggered whenever an accused appears in court without
counsel. Id. The court held that the concept of self-representation established in Faretta applies
only to a person contesting, rather than confessing, guilt. Id. For instance, a trial court must
warn a defendant of the hazards of proceeding without counsel when representing herself at trial
on a plea of not guilty. Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992).
However, a trial court need not admonish a defendant before approving a waiver of his right to
counsel and accepting a plea of guilty or no contest. Johnson, 614 S.W.2d at 119; Cooper, 854
S.W.2d at 304.
The duty to warn under Article 1.051(g) arises only when a defendant with an
existing right to counsel wishes to waive that right. See Tex. Code Crim. Proc. Ann. art.
1.051(g) (West Supp. 1995). In this case, the indigency hearing was not a critical stage in the
adversarial judicial proceedings to which the right to representation attached. Because appellant
had no existing right to counsel at the indigency hearing, we hold under these facts that she was
not entitled to have counsel appointed to represent her and that, because guilt was not in issue,
the trial court was not required to admonish her of the dangers of proceeding pro se.
Furthermore, Article 1.051(e) of the Texas Code of Criminal Procedure does not
require the court to provide ten days' notice to appellant in this case. The provision mandates:
If a nonindigent defendant or an indigent defendant who has refused appointed
counsel in order to retain private counsel appears without counsel at a proceeding
after having been given a reasonable opportunity to retain counsel, the court, on
10 days' notice to the defendant of a dispositive setting, may proceed with the
matter without securing a written waiver or appointing counsel.
Tex. Code Crim. Proc. Ann. art 1.051(e) (West Supp. 1995). At the time of the indigency
hearing, appellant did not qualify as a "nonindigent defendant" or as an "indigent defendant who
has refused appointed counsel." Appellant was before the trial court for a determination of
indigency. The statute clearly applies after that determination is made. Accordingly, we overrule
appellant's first point of error.
In her second point of error, appellant argues that the trial court erred in overruling
appellant's oral motion for new trial, which she made at the indigency hearing, because she
received no assistance of counsel at the hearing and was not adequately admonished as to the
possible consequences of proceeding pro se. At the conclusion of the indigency hearing and after
the trial court had found that appellant was not indigent, the trial court commented that there was
no motion for new trial to address unless appellant desired to make an oral motion at that time.
The court explained that appellant had to have grounds before she could make a motion for new
trial. In response, appellant stated that she would indeed like a new trial. The trial court denied
her request.
Appellant argues that the trial court transformed the indigency hearing into an
adversarial judicial proceeding by entertaining her motion for new trial and that, in doing so, the
court established appellant's right to representation. Specifically, appellant claims that the trial
court was required to warn her of the dangers and disadvantages of proceeding pro se in this
adversarial judicial proceeding. Because she was not warned, appellant claims that the case
should be remanded for a hearing on a motion for new trial.
Appellant's second point of error is unfounded. No motion for new trial was
before the court for consideration. In order to be entitled to a hearing at which evidence
warranting a new trial can be introduced, appellant must meet certain prerequisites. Burns v.
State, 844 S.W.2d 934, 935 (Tex. App.--Amarillo 1992, no pet.) (citing Trout v. State, 702
S.W.2d 618, 620 (Tex. Crim. App. 1985)). A timely filed motion for new trial containing
allegations which, if true, would require the trial court to order a new trial is one of those
prerequisites. Id.
The right to move for new trial is purely statutory. Port v. State, 798 S.W.2d 839,
846 (Tex. App.--Austin 1990, pet. ref'd) (citing Drew v. State, 743 S.W.2d 207, 222 (Tex. Crim.
App. 1987)); see Tex. R. App. P. 31(a)(1) ("A motion for new trial if filed may be filed prior to,
or shall be filed within 30 days after, date sentence is imposed or suspended in open court."). The
remedy must be pursued in the manner prescribed by the statute. Port, 798 S.W.2d at 847. "A
`new trial' is the rehearing of a criminal action after a finding or verdict of guilt has been set
aside upon motion of the accused." Tex. R. App. P. 30(a) (emphasis added). In other words, a
motion for new trial is the defendant's prerogative. Appellant in this case chose not to exercise
that prerogative. She did not file a motion for new trial and in no way attempted to comply with
the procedure set forth in Rule 31 of the Texas Rules of Appellate Procedure.
A trial court has no power to grant a new trial on its own motion, and if it does so,
such act is void. Perkins v. Court of Appeals, 738 S.W.2d 276, 280 (Tex. Crim. App. 1987).
Thus, the trial court's question to appellant during the indigency hearing as to whether she desired
to move for a new trial could not and did not place a motion for new trial before the court. See
Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985). The indigency hearing was
conducted solely to determine whether appellant was indigent for purposes of appeal. Because
there was no motion for new trial properly before the court, the indigency hearing was not a
critical stage in the adversarial judicial proceedings, and appellant's right to representation was
not established. Thus, appellant was not entitled to an admonishment as to the dangers and
disadvantages of self-representation. We overrule appellant's second point of error.
In her third point of error, appellant alleges that the trial court erred in allowing
the State to continuously adjust the volume of the audio portion of a DWI videotape when the
videotape was published to the jury in violation of her rights to a fair trial. Appellant contends
in her fourth point of error that the trial court erred in allowing the State to introduce into
evidence any portion of the DWI videotape recorded after appellant invoked her right to counsel.
Appellant has failed to file a complete statement of facts. Appellant filed a
statement of facts from a January 12, 1993 pretrial hearing and from the indigency hearing that
took place on January 5, 1994. Appellant also filed a supplemental statement of facts from a May
16, 1994 hearing. However, appellant's partial statement of facts failed to include the statement
of facts, or even a portion thereof, from the actual trial.
Rule 53(d) allows an appellant to prepare a partial statement of facts. Tex. R. App.
P. 53(d). The purpose of the rule is to reduce the length of the statement of facts, thereby
minimizing the expense and delay often associated with the appellate process. Steger & Bizzell
v. Vandewater Constr., Inc., 811 S.W.2d 687, 690 (Tex. App.--Austin 1991, writ denied). The
rule requires, however, that appellant "shall include in his request or proposal a statement of the
points to be relied on and shall thereafter be limited to such points." Tex. R. App. P. 53(d). If
this statement of points is filed, a presumption is established on appeal that nothing omitted from
the record is relevant to any of the specified points or to the disposition of the appeal. Id.
However, if appellant fails to comply with the requirements of Rule 53(d), "it will be presumed
that the omitted portions are relevant to the disposition of the appeal." Christiansen v. Prezelski,
782 S.W.2d 842, 843 (Tex. 1990). An appellate court cannot determine whether a particular trial
court ruling constitutes either error or harm in the context of the entire case if appellant has
neither complied with Rule 53(d) nor filed a complete statement of facts. Id.
Appellant did not request a complete statement of facts nor did she designate in her
partial statement of facts the points to be relied upon on appeal. Because of appellant's
noncompliance with Rule 53(d), we must presume that the omitted portion of the statement of
facts, specifically the statement of facts from the actual trial, is relevant to the disposition on
appeal.
Appellant has the burden to present a record to the appellate court sufficient to
show error that demands reversal. Tex. R. App. P. 50(d). By failing to present a statement of
facts from the actual trial, appellant has failed to show the trial court's rulings to which she
attributes error and, thus, has presented nothing for review. Montalvo v. State, 846 S.W.2d 133,
137 (Tex. App.--Austin 1993, no pet.). We do not know whether a DWI videotape was admitted
into evidence. If it was, we do not know whether the State actually edited the audio portion of
the videotape as asserted by the appellant, whether objections were made in a timely and specific
manner, whether the trial court ruled on each specific objection, or whether appellant properly
preserved error for review. Thus, we overrule appellant's third and fourth points of error.
The judgment of conviction is affirmed.
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Aboussie and Jones
Affirmed
Filed: March 8, 1995
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169 N.W.2d 788 (1969)
STATE of Iowa, Appellee,
v.
Curtis Lee REDDING, Appellant.
No. 53228.
Supreme Court of Iowa.
July 24, 1969.
*789 Walter W. Rothschild, Waterloo, for appellant.
Richard C. Turner, Atty. Gen., and Larry Seckington, Asst. Atty. Gen., for appellee.
GARFIELD, Chief Justice.
A jury found Curtis Lee Redding guilty of robbery with aggravation in violation of section 711.2 Code, 1966, in that he robbed Arnold Heasley of approximately $100 while armed with a gun, with intent, if resisted, to kill or maim Heasley. From judgment on the verdict defendant has appealed.
Three alleged errors are assigned. (1) Refusal of defendant's request for a list of police officers who investigated the crime and the nature of the investigation of each. (2) Admitting in evidence what defendant refers to as a "mug shot" of defendant taken at a prior arrest. (3) Admitting in evidence as part of the res gestae a conversation between the victim and an eye witness as to the description of defendant. We consider them in the order stated.
Since sufficiency of the evidence of guilt is not questioned, only limited reference to the facts is deemed necessary at this point.
Heasley was a filling station attendant in Waterloo. The robbery occurred on the night of February 4-5, 1968 about 1:30 or 1:40. Heasley was alone in the station when, according to his testimony, defendant entered with a gun, announced it was a "stickup," demanded the money in the drawer of a desk and left with about $100 in his possession; Heasley was about two feet from the robber and identified defendant as that person; he was a Negro wearing dark clothes and a French beret; about two days later he had an opportunity to recognize defendant at the police station from about 12 photographs shown him, one of which was of defendant.
I. On the day the county attorney's information was filed, defendant's counsel filed a motion asking for a list of police officers involved in the investigation and the nature thereof conducted by each, a copy of any written statements taken by the police from the victim Heasley, and that defendant be permitted to examine a money sack referred to in the minutes of testimony attached to the information.
After arguments on the motion the court denied the first request and two others not referred to supra but granted the last two requests and required the state to furnish the material within two days. It is not claimed the order was not complied with. Denial of only the first request is complained of here.
Since trial of the present case we have dealt extensively in State v. Eads, Iowa, 166 N.W.2d 766, 773-775 with the question presented in this first assigned error. While the Eads opinion is too long to review here, nor is that necessary, it fully supports the view that no abuse of discretion appears in denying defendant's first request.
In Eads the trial court required the state to furnish a defendant charged with murder copies of statements made to police by all persons it expected to call as witnesses, also a right to inspect and copy the reports by four named officers concerning their investigation in to the alleged crime. In a review by certiorari of the order, the requirements above referred to were held to be an abuse of discretion.
*790 This is from the Eads opinion (page 774 of 166 N.W.2d): "However, whether condemned as `mere fishing expeditions,' `attempts to rifle the prosecutor's file,' or `requests for the State's work product,' the overwhelming weight of authority is against such disclosure. * * *
"We hold the order requiring the State to produce copies of police reports was an abuse of discretion and that approval of such procedure would unreasonably and unnecessarily impede the investigatory process, thereby depriving the State of a fair trial. (numerous citations)"
See also State v. Kelly, 249 Iowa 1219, 1220-1222, 91 N.W.2d 562, 563-564, and State v. Tharp, 258 Iowa 224, 227-230, 138 N.W.2d 78, 80-81, and what is said concerning them in State v. Eads, supra. The Eads opinion says (pages 768, 769 of 166 N.W.2d): "For present purposes we take as established the argument that, in the absence of suppression of evidence favorable to a defendant, states do not violate due process by denying pre-trial discovery. (citations)."
Defendant concedes that under State v. Kelly pretrial discovery may be had in Iowa only for the production of specific documents which are shown to be in existence. His first demand was not of such nature.
Aside from State v. Kelly, the only decision defendant cites is Williams v. Dutton, 5 Cir.Ga., 400 F.2d 797, 800-801, which we do not find contrary to our holding here.
We are also reminded the trial court had considerable discretion under Code section 773.6 to order the county attorney to furnish defendant a bill of particulars of the offense sufficient to enable him to prepare his defense or to give him such information as he is entitled to under the constitution of this state and a supplemental or new bill when the court deems it in the interest of justice. As to this suggestion it is sufficient to say defendant made no request for information under this statute and it was not an abuse of discretion for the court not to invoke section 773.6 on its own motion.
We note that in permitting defendant to examine the money sack referred to in minutes of testimony attached to the information the trial court complied with the pertinent part of State v. Eads, supra, filed nearly a year after the ruling under discussion here. (pages 769, 771 of 166 N.W. 2d).
II. Regarding receipt in evidence of what defendant refers to as a "mug shot" of him, Heasley testified without objection he had an opportunity to recognize defendant again at the police station by means of photographs a few days after the alleged robbery. At this point defendant's counsel said he would like to interpose an objection and to be heard on it in the jury's absence. An extended hearing was then held in the jury's absence. It was brought out by defendant's counsel the state perhaps would show that one to three days after February 5 Heasley identified a mug shot of defendant and indicated to the police this was the man he believed robbed him.
It also appeared at the same hearing that Heasley identified defendant in a police "lineup" on March 1. Later that day a preliminary information was filed in municipal court accusing defendant of the crime of which he was later convicted. Defendant's counsel indicated he would object to offer of the photograph (exhibit D) and evidence of the lineup principally on the ground defendant had no attorney present at either time. The county attorney brought out that defendant had not been arrested or confined on the charge of which he was convicted until the information was filed and the investigation had not reached the accusatory stage at the time defendant was identified by the photographs or in the lineup.
At the conclusion of the above hearing the court ruled the photograph would be received in evidence but evidence as to the lineup would be excluded. The court concluded *791 from the testimony and admissions at the hearing the investigation had not reached the accusatory stage until after Heasley viewed the photographs.
After the jury returned to the court room Heasley testified that two days after the robbery he went to the police station to look at about a dozen mug shots and exhibit D was the photograph of defendant about which he testified. The exhibit was received in evidence over defendant's objection of incompetent, irrelevant, immaterial, highly prejudicial, without probative value and in violation of defendant's rights under the Fifth and Fourteenth Amendments to the Federal Constitution, presumably rights against self-incrimination and to due process of law.
Defendant argues here exhibit D should not have been admitted because the jury would get the impression therefrom he had been in trouble with the police before and so be prejudiced against him in considering his guilt or innocence of the crime charged.
It is the general rule that evidence is not receivable of a crime for which defendant is not charged and on trial, but there are well-recognized exceptions to the rule. One exception applies where such evidence tends to identify him as the person who committed the crime charged. State v. Vance, 119 Iowa 685, 687, 94 N.W. 204 (later overruled on another point); State v. Johnson, 221 Iowa 8, 14-16, 264 N.W. 596, 267 N.W. 91; State v. Dunne, 234 Iowa 1185, 1195-1196, 15 N.W.2d 296, 301-302 and citations; State v. Gill, 259 Iowa 142, 145, 143 N.W.2d 331, 333; 29 Am.Jur. 2d, Evidence, § 322.
Identity of defendant as the man who robbed Heasley was very much an issue at the trial. Defendant's brief calls it the crucial issue. As stated, Heasley as a witness identified defendant in the court-room as the person who robbed him. Defendant as a witness denied he was ever in the filling station in question except the rest room on a prior occasion, robbed the attendant on February 5 or at any time, and that he ever owned a gun or wore a French beret.
Especially since identity of accused was such an important issue, notwithstanding Heasley's in-court identification of defendant as the person who robbed him, it was entirely proper for the state to offer evidence that at a former time the victim also identified defendant as such person. Indeed some evidence of this was received without objection, as stated at the outset of this Division II. Courts and text writers have recognized that the earlier identification has greater probative value than the one made in the court-room.
As held in People v. Gould (Traynor, J.) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, 866-867 (1966):
"Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial (citation), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached (citations), evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. (citations)" (emphasis added)
People v. Purnell, Ill.App., 245 N.E.2d 635 (1969), points out: "A photograph of an accused from which a complainant makes an identification is a proper means of identification and can be properly admitted into evidence. (People v. Maffioli, 406 Ill. 315, 94 N.E.2d 191.)"
State v. Childs, 198 Kan. 4, 422 P.2d 898, 903-905 (1967) fully considers the question presented by defendant's second assignment and cites numerous decisions from *792 various jurisdictions for this conclusion: "We think the reasoning adopted by the authorities favoring the admission into evidence of the extra-judicial identification of an accused is sound and should be applied where, as in the instant case, prior identification is made from photographs." (page 904 of 422 P.2d.)
4 Wigmore on Evidence, Third Ed., section 1130, pages 208, 210 contains these pertinent excerpts: "Ordinarily, when a witness is asked to identify the assailant, or thief, * * * the witness' act of pointing out the accused (or other person), then and there in the court-room, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person's identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him.
"* * * To corroborate the witness, therefore, it is entirely proper * * * to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness' mind, he recognized and declared the present accused to be the person. If, moreover (as sometimes is done) the person was then so placed among others that all probability of suggestion (by seeing him handcuffed, for example) is still further removed, the evidence becomes stronger. The typical illustration is that of the identification of an accused person at the time of arrest: * * *
"This is a simple dictate of common sense, and was never doubted in orthodox practice. That some modern Courts are on record for rejecting such evidence is a telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning."
Wigmore also points out, as does People v. Gould supra, at page 867 of 354 P.2d, it is not necessary to wait until the witness making the in-court identification is impeached before evidence of an earlier extra-judicial identification is properly received.
Defendant contends the prior identification of him could not be made by use of a photograph taken by the local police or testimony concerning it, some of whichas statedwas received without objection. The contention cannot be accepted under the record we have here.
The state made no attempt to show before the jury, except perhaps incidentally, defendant had been arrested, much less convicted, upon any charge other than that now considered. He testified on direct examination by his counsel that on December 18, 1967, "the date of arrest shown on exhibit D, he was arrested for a traffic violation." However, the back of the exhibit lists the charge as delinquency. The state did not attempt to contradict defendant's testimony he had been arrested for a traffic violation when the photo was taken nor was it shown what disposition was made of any charge growing out of it. Defendant also testified on direct examination without dispute he had not previously been arrested except for the traffic violation. He did say, however, also on direct examination, he had been AWOL from the armed services three times.
While there is some lack of uniformity in the decisions on the admissibility of photographs of suspects in possession of the police and testimony concerning them as bearing on the identification of an accused as the one who committed the crime charged, there are many recent decisions which support the trial court's admission of exhibit D under such a record as this.
Colbert v. Commonwealth, Ky., 306 S.W. 2d 825, 828, 71 A.L.R.2d 442, 447-448, and Anno. 449 carefully consider the question. This is from the cited opinion: "It appears that other jurisdictions are about equally divided on the question of competency of testimony by a witness as to his own previous identification of the accused, with perhaps a tendency in the recent cases in favor of admissibility. See Annotation, *793 70 A.L.R. 910. Wigmore strongly argues in favor of admissibility. Wigmore on Evidence, Third Ed., sec. 1130. Wharton and Underhill also take the view that the evidence is admissible. Wharton on Criminal Evidence, Twelfth Ed., secs. 181, 182; Underhill's Criminal Evidence, Fifth Ed., sec. 127. These authorities and the cases supporting their view, make no distinction between identification through photographs, as in a `rogues' gallery,' and identification through a police lineup. However, they do point out that the conditions and circumstances under which the identification was made should be fair and be free of influences and suggestions calculated to induce a fancied recognition. * * *
"Without attempting to repeat the reasons relied upon by those authorities who uphold the admissibility of such evidence, we will simply say that we find the reasons to be sound, and we adopt the view that evidence by a witness of his own previous identification of the defendant in a criminal case, under circumstances reasonably free of improper influences, is competent. We think the question should properly be considered one of weight, rather than of competence, and that adequate protection is afforded through the opportunity for cross-examination. To the extent that Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594, and Keene v. Commonwealth, 307 Ky. 308, 210 S.W.2d 926, express a contrary view, they are overruled.
"We hold that the testimony of the prosecuting witness, concerning his previous identification of the defendant, was competent. * * *
"The appellant voices an objection, on another ground, to the testimony concerning identification of the defendant's picture among a group of pictures shown to the victim at the police station. The objection is, that since it is common knowledge (or at least belief) that the `rogues' galleries' maintained at police stations are composed of photographs of known criminals, the admission of evidence as to the defendant's picture being in such a `rogues' gallery' was in substance the admission of evidence of another, unrelated crime committed by the defendant. Since we have held that the evidence of identification by photograph was otherwise competent, and since any suggestion from this evidence that the defendant was guilty of other crimes was incidental and remote, we think the evidence was not objectionable on the ground of reference to other possible crimes. See 20 Am.Jur., Evidence, sec. 311, p. 290; cf. Commonwealth v. Jackson, Ky., 281 S.W.2d 891. In fact, there is authority for the proposition that evidence of other crimes is admissible where it is for the purpose of identification. See 20 Am.Jur., Evidence, sec. 312, p. 292." (emphasis added)
The A.L.R.2d annotation following the report of the Colbert opinion reviews many precedents, largely on an individual basis, following this analysis (page 453 of 71 A.L.R.2d) "* * * the rule now prevailing in most jurisdictions in which the question has been fully considered, subject to the qualifications and exceptions noted, is that the prior identification may be shown by the testimony of the identifier or identifying witness, or by the testimony of the third person to whom or in whose presence the identification was made, where the identifier has testified or is present and available for cross-examination at the trial, not as original, independent, or substantive proof of the identity of the defendant as the guilty party but in corroboration of the testimony of the identifying witness, at the trial, as to the identity of the defendant. As above indicated, however, a contrary rule obtains in some jurisdictions as to some or all of the propositions stated, as hereinafter shown."
See also in support of our holding on defendant's second assigned error Simmons v. United States, 390 U.S. 377, 383-384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Robinson, 7 Cir. Ill., 406 F.2d 64 (1969); People v. Gould, supra, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d *794 865, 866-867 (1966); People v. Purnell, supra, Ill.App., 245 N.E.2d 635 (1969); People v. Maffioli, supra, 406 Ill., 315, 94 N.E.2d 191, 195; State v. Childs, supra, 198 Kan. 4, 422 P.2d 898, 903-905 (1967); Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966); State v. Owens, 15 Utah 2d 123, 388 P.2d 797 and citations note 1, page 798 (1964). See also citations in State v. Tapia, 79 N.M. 344, 443 P.2d 514, 515 (1968).
We note that Commonwealth v. McLellan, supra, after citing five precedents as supporting its decision, adds "But see Vaughn v. State, 215 Ind. 142, 19 N.E.2d 239." In Vaughn there was no prior identification of accused by photograph and the only apparent purpose of offering it was to prejudice the jury against him.
The principal decision defendant cites on the point now considered is Commonwealth v. Trowery, 211 Pa.Super. 171, 235 A.2d 171 (1967). An intermediate appellate court there, one judge dissenting, regarded the exhibit received in evidence as clearly prejudicial since it was part of the state police files known as the "rogues' gallery"it was not from the files of the local police.
No such term as "rogues' gallery" was used by the prosecutor or victim of the crime here. Nor is there any evidence or claim exhibit D came from any prison file or shows any prison record. A different question would be presented if it did. As stated, the undisputed evidence, offered by defendant, is that the photo was taken by the local police following his arrest for a traffic violation and he had never been previously arrested.
Several cases distinguish between photographs obviously taken in prison, thus showing felony convictions, and those taken by local police. See, e. g., United States v. Robinson, supra, 7 Cir. Ill., 406 F.2d 647; People v. Maffioli, supra, 406 Ill. 315, 94 N.E.2d 191, 195; People v. Purnell, supra, Ill.App., 245 N.E.2d 635.
The decisions in Maffioli and Purnell appear from these excerpts from the latter opinion, filed earlier this year:
"The defendant next assigns as error the admission of the police photograph of the defendant bearing the legend, `Police Department, Maywood, Ill. 3458.' The instant case is readily distinguishable from People v. Williams, 72 Ill.App.2d 96, 218 N.E.2d 771 in which the court held that it was improper to admit a photograph bearing the legend `Jackson State Prison' since the defendant did not testify and since the photo served to show that the defendant had been convicted of a crime. In the case at bar, the legend complained of does not indicate a conviction of a crime. In People v. Maffioli, supra, the Supreme Court held that admission of photos of the defendant each bearing the legend `Police Dept., Rockford, Ill., 6874 John Maffioli 8-26-49' was proper since the photos were not offered into evidence to show an arrest for another offense but were offered for the relevant purpose of identification. The Maffioli case is controlling in this case, and thus we find the defendant's argument to be without merit." (emphasis added)
We hold here the state's offer of the photograph exhibit D, as part of its main case for the relevant purpose of identification of defendant did not, under the circumstances here, tend to place defendant's character in issue.
The trial court was not requested to instruct the jury on the purpose for which exhibit D was admitted or should be considered. No objection was taken in the trial court, even in defendant's motion for new trial, to the instructions on such ground nor is any such objection made here. It may well be defendant desired no such instruction.
III. We find no merit in defendant's third assigned error in the admission, over his objection as hearsay, of testimony of Westphal in rebuttal as to his conversation *795 with Heasley a very few minutes after the robbery.
Westphal testified without objection he was driving past the oil station in question between 1:30 and 1:40 on February 5 when he noticed a Negro suspect leaving the station; witness slowed down to five miles an hour; the suspect was wearing a dark colored beret, dark pants and 3/4 length coat; he identified defendant as the person he saw; the person turned and ran between two houses; witness "figured" something was wrong since the station attendant was standing motionless against its inside wall; witness drove around the block and saw the suspect crouched down by the front porch of a big gray duplex; when witness applied his brakes the suspect "took off" across the street; when witness backed his car a shot was fired either at him or in the air; when he looked up he saw the suspect running between houses across the street and turn right and he did not see suspect again; witness rushed into the station to see if the attendant was all right and had a conversation with him. All of the above was received without objection.
Asked what the attendant said, defendant objected as hearsay and the prosecutor stated he felt it was part of the res gestae. The court excused the jury on its own motion, heard what the alleged conversation was and ruled it admissible as part of the res gestae.
The witness then testified before the jury Heasley said he was all right, had called the police and was in the act of calling his boss to report the robbery; the two discussed what the suspect wore; witness asked if he was wearing a beret and Heasley said "yes"; asked if he was wearing a dark ¾ length coat, Heasley said "yes", and dark trousers? and Heasley also said "yes"; the two agreed on a description of the suspect; witness asked if he was probably about five feet eleven or six feet tall and they agreed on that. This is the evidence received over defendant's objection as hearsay. No other objection was interposed.
The principal argument in support of this assigned error is that the statements testified to did not have the spontaneity to qualify as res gestate. We are told Clark v. Van Vleck, 135 Iowa 194, 197-198, 112 N.W. 648, (1907) states the res gestae rule in this state. We find nothing to criticize in what is said there. The opinion recognizes that the fact the declarations are made in response to inquiries and are "self-serving" is not always controlling. It is also said "And as a general rule the admissibility of such evidence lies largely within the discretion of the trial court." Exclusion of the evidence was upheld in the cited case.
In the 62 years since Clark v. Van Vleck was decided we have held several times and it is generally recognized that the trend of the decisions is to extend, rather than narrow, the res gestae doctrine. Roushar v. Dixon, 231 Iowa 993, 997, 2 N.W.2d 660, 662; State v. Stafford, 237 Iowa 780, 785, 23 N.W.2d 832, 835; Bass v. Muenchow, 259 Iowa 1010, 1015, 146 N.W. 2d 923, 926; Gibbs v. Wilmeth, Iowa, 157 N.W.2d 93, 98-99; 29 Am.Jur.2d, Evidence, section 708, page 771; 31A C.J.S. Evidence § 403(1), page 984.
It is axiomatic that the admissibility of statements as part of the res gestae is largely within the discretion of the trial court. Gibbs v. Wilmeth, supra, and citations; State v. Johnson, Iowa, 152 N.W. 2d 426, 430, and citations; 31A C.J.S. Evidence § 403(1), page 983 and Iowa cases cited n. 48. The trial court's rulings on the question are usually, but not always, affirmed on appeal. Bass v. Muenchow, supra, 259 Iowa 1010, 1014, 146 N.W.2d 923, 926 and citations. In Bass the trial court was reversed for excluding the statements.
We have held several times the fact statements are made in response to questions does not render them inadmissible *796 as part of the res gestae if they are spontaneous and made under the excitement of the principal transaction. Gibbs v. Wilmeth, supra, 157 N.W.2d 93, 99 and citations; State v. Johnson, supra, 152 N.W. 2d 426, 430 and citations. See also Cossette v. Lepp, 38 Wis.2d 392, 157 N.W.2d 629, 631; 31A C.J.S. Evidence § 419 d, page 1036 and citations n. 56.
It is settled the res gestae doctrine applies in both civil and criminal cases. 29 Am.Jur.2d, Evidence, section 708, page 769; 31A C.J.S. Evidence § 403(1), page 985.
We are not persuaded the trial court abused its discretion under the circumstances here in admitting this conversation between Westphal and the victim of the crime. According to his testimony the latter had been robbed of $100 at gunpoint within five minutes or less; he had just notified police and was in the act of notifying his boss when Westphal rushed into the station to see if the attendant was all right; Westphal had just witnessed the suspect escape from the station and a gunshot had been fired at him or into the air; the trial court could properly find both Heasley and Westphal were still acting under continuing excitement of the robbery and there was insufficient time for the former to fabricate or deliberate upon answers to the few questions the latter put to him; the answers generally corroborated testimony each had previously given without objection as to the description and identity of the suspect.
We may note Westphal was cross-examined at some length. In an obvious effort to weaken his identification of defendant it was brought out the witness made no identification through photographs or lineups.
We find no reversible error assigned and argued and further find defendant was accorded a fair trial.
Affirmed.
All Justices concur except BECKER and RAWLINGS, JJ., who dissent.
BECKER, Justice (dissenting).
I respectfully dissent.
The question considered in Division II is not whether evidence of extra-judicial identification is admissible as an exception to the rule against corroborating a party's own witness. The majority opinion strongly and amply demonstrates such evidence is admissible and defendant does not contest the point. The question is; can the State, in showing such extra-judicial identification in its case in chief, violate our long established rules barring evidence of a defendant's bad character, or reputation, or prior convictions, or prior arrests in its main case? State v. Brown, 100 Iowa 50, 69 N.W. 277; State v. Eaton, 190 Iowa 212, 180 N.W. 195; State v. Underwood, 248 Iowa 443, 80 N.W.2d 730; 1 Wharton's Criminal Evidence, Twelfth Ed., section 232, page 492.[1] The majority notes this prohibition does not apply where the purpose of the evidence is to show identification but we have not applied this exception to the type case we have here.
It might be well to first view the evidence itself. Through some inadvertence the photograph actually used at trial has been lost. The picture and legend on the reverse side has been certified to this court by trial attorneys as an exact duplicate, front and back, of exhibit D. The effectiveness of the exhibit to bring home to the jury the fact that defendant at least had a police record, if not a felony record, needs no elaboration.[2]
*797
Of the many cases dealing with this general subject, a good short statement of the problem together with a suggestion as to the proper rule is gleaned from two Canadian cases. Rex v. Dean, (1942), 1 Dominion Law Reports, 702, 706, 706, Ontario *798 Court of Appeal: "It is argued for appellant that the Crown prevented him having a fair trial by introducing as part of its case in chief this evidence that the accused had been formerly convicted of an offence and had been imprisoned. It is answered for the Crown that whatever may be said about the filing of this exhibit, in the end no harm came of it as appellant became a witness in his own defence, and in the course of his examination-in-chief, being asked by his own counsel whether he had been previously convicted, said he had been convicted twice, once in California and once in Manitoba. It is said further that appellant on cross-examination was properly asked as to these prior convictions and gave some details with respect to them. Appellant's counsel replies to this that the appellant was forced into the witness box by the evidence of prior conviction improperly admitted against him as part of the Crown's case. * * *
"It is not arguable that when the question is whether the prisoner is the person who committed the crime charged, evidence that he is a former convict and that the police have his photograph in their gallery is not prejudicial to the prisoner. Not only does it affect his credibility as a witness, but even if he does not become a witness the knowledge will, in every probability, be weighed in the scales against him. It weakens the presumption of innocence to the benefit of which he is entitled."
This case is followed by Rex v. Watson (1944), 2 D.L.R. 801, 802, 803, (Ontario): "* * * As was pointed out by counsel for the Crown, the police have in their possession photographs other than those of convicted persons, and mere mention of the fact that the photograph of the person on trial was in the hands of the police is no warrant for assuming that he had a criminal record. Reference may be made to R. v. Kingsland (1919), 14 Cr.App.R. 8. It would be improper for counsel for the Crown to endeavour to make a point of the fact that the photograph of the accused was among the police records. So far as possible that ought not to be disclosed to the jury, and if there is any reason to apprehend the jury may be prejudiced against the accused by reason of some disclosure of the fact that the police have his photograph on their records, it would be well for the trial Judge to warn the jury against allowing their minds to be influenced by that knowledge, to the prejudice of the accused. R. v. Palmer (1914), (10 Cr.App. R. 77). * * *.
"It requires constant watchfulness on the part of trial Judges and Magistrates, and of Crown counsel as well, to see that nothing unfair to an accused person is done, or is stated in evidence, in connection with the use of photographs for purposes of identification. Within proper limits, the use of photographs is not only helpful to the administration of justice, but is often indispensable."
The Canadian cases are quoted because they help put the problem in focus and suggest a reasonable approach. Our own federal courts reach the same conclusion on very similar reasoning.
United States v. Reed, 7 Cir., 376 F.2d 226 (1967), is a case where the photos were not admitted in evidence but were referred to as `mug shots' during testimony concerning extra-judicial identification. The federal courts said: "We hold that the testimony with respect to the `mug shot' of Reed taken in prison vitiated his right to be presumed innocent until proven guilty and was prejudicial error. Repeated objections to this testimony were sustained, but the testimony remained. This testimony made the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict. His right not to take the stand in his own defense was substantially destroyed. His past record could not have been directly shown by the prosecution as part of its case to prove bad character since Reed's character was not in issue. The testimony did this indirectly.
*799 "The characterization of the photographs as `mug shots' taken in prison had the same effect as the penitentiary notations on photographs and the descriptive testimony concerning them held to be prejudicial in United States v. Harman, 349 F.2d 316, (4th Cir. 1965). In remanding for a new trial, the court in Harman said it doubted that anything the judge might have said could have removed the prejudice created by the pictures and noted that he had not mentioned them in his instructions. Id. at 320." (loc. cit. 376 F.2d at page 228.)
In Castillo v. United States (5 Cir., April 2, 1969). 409 F.2d 762, 764, the same problem arose. The picture from which identification was made was referred to as part of a group of "mug shots" depicting "known users". In reversing the court said: "In addition the characterizations were wholly unnecessary and served no legitimate purpose. The earlier testimony of Bustos had demonstrated how the testimony could be handled, without prejudice to appellant, to achieve the legitimate purpose of coupling seller and photograph as the same person. Appellant's character was not in issue. The chain of proof from visual observation of the seller by the witness, to selection by the witness of a picture as one depicting the seller, to undisputed identification by another of the depicted image as that of a particular person who was then arrested, depended not at all on the source or character of the photograph but upon the witnesses' visual observation of it plus Hambreck's undisputed ascertainment that the picture they selected was of appellant."
The two federal cases just cited deal with testimonial evidence only. There is a good deal of law concerning the admissibility of such "mug shots" as distinguished from mere testimony concerning them. United States v. Harman, 349 F.2d 316 (4th Cir. 1965), is such a case. The court cites 20 Am.Jur., Evidence, section 728, page 608, as stating the general rule: "`Photographs are admissible in evidence in criminal cases upon the same principles and rules governing their admission in civil cases. However, photographs taken from the "rogues' gallery" collection of photographs, or the files of photographs taken in prison, are generally inadmissible when on their face they are identifiable as such pictures'"[2]. (loc. cit. 349 F.2d at page 322.)
Vaughn v. State, 215 Ind. 142, 19 N.E.2d 239, 241 (1939), is a case where the material on the photograph and card was blocked out and the police or prison picture was then used. The court observed: "* * *. Pictures of criminals showing a front and profile view, with a number displayed on the breast, are common and familiar. If the evidence had been offered for the good-faith purpose of showing that the witness could identify a photograph of the defendant, these pictures might have been cut apart and that portion where the number is displayed cut away. But it is obvious that thus presented they would have no more relevancy or probative force than a kodak picture taken in the court room or in the defendant's home. It may well be doubted whether the jurors remained in ignorance of the fact that the photographs and card had to do with some criminal record of the defendant. It was not proper to prove that the defendant had a criminal record, and what may not be done directly may not be done by indirection or subterfuge. If the photographs had any substantial probative force and furnished any further evidence of the identity of the person who committed the crime than was furnished by the testimony of the witness who identified him, and it was impossible to separate the photographs from the prejudicial matter, a different question would be presented. Since proof of another crime improperly admitted is always treated as prejudicial error, *800 and, since it cannot be said that this exhibit and the manner in which it was presented was not sufficient to cause a juror of average intelligence to at least strongly suspect that the defendant had a criminal history, we cannot say that the admission of the exhibit was not prejudicial."
Other cases holding use of police or "mug shot" photographs to be prejudicial error are State v. Boyd, 8 Terry 370, 91 A.2d 471; Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966).
Nearly all of the principal authorities relied upon by the majority do not reach the question we have here. Most of them are authority for the propriety of evidence of extra-judicial identification where the prior identification was by photographs without reference to their source, lineup procedures, identification at preliminary hearing, and the like. It is submitted this is true of People v. Gould, (Traynor, J.), 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865; State v. Childs, 198 Kan. 4, 422 P.2d 898; Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442.
In People v. Gould, supra, the testimony referred to identification by photographs. The source of the photographs was not alluded to in recitation of the testimony and the photographs themselves were not offered in evidence. The case does not mention, much less condone, reference to mug shots or introduction of police photographs into evidence.
State v. Childs, supra, refers to identification of defendant from "police photographs" and "photographs furnished by the police." The term "mug shots" was not used until the officers testified. Objection was immediately made and the officer later responded without using the term "mug shots". As to this portion of the case, which really begins to approach our problem here, the Kansas Supreme Court said:
"Notwithstanding the procedural shortcomings which normally would preclude review by this court, we have examined the record and are of the opinion the reference to `mug shots' did not result in prejudicial error under the circumstances narrated. Nothing said herein, however, is to be construed as placing our stamp of approval on this type of testimony, regardless of whether the reference was intentional or inadvertent. We specifically condemn the tactics often employed by overzealous witnesses of injecting clearly incompetent testimony, not otherwise admissible, which implies the accused has a prior criminal record, in an obvious effort to create prejudice in the minds of the jury. Decisions in which the admission of such testimony has been held not to have resulted in prejudicial error must be confined to the specific facts of each case rather than an indication of carte blanche approval of the practice." (loc.cit. 422 P.2d, page 905).
Neither State v. Childs, supra, nor the case on which it is based, State v. Minor, 195 Kan. 539, 407 P.2d 242, involves use of the pictures. I find it exceedingly difficult to accept the Kansas Supreme Court as authority for the proposition that deliberate use of the term "mug shots" of defendant is permissible as part of the extra-judicial identification evidence. Yet this is what the majority seems to imply.
Colbert v. Commonwealth, supra, involved the following situation: "The appellant voices an objection, on another ground, to the testimony concerning identification of the defendant's picture among a group of pictures shown to the victim at the police station. The objection is, that since it is common knowledge (or at least belief) that the `rogues' galleries' maintained at police stations are composed of photographs of known criminals, the admission of evidence as to the defendant's *801 picture being in such a `rogues' gallery' was in substance the admission of evidence of another, unrelated crime committed by the defendant. Since we have held that the evidence of identification by photograph was otherwise competent, and since any suggestion from this evidence that the defendant was guilty of other crimes was incidental and remote, we think the evidence was not objectionable on the ground of reference to other possible crimes. See 20 Am.Jur., Evidence, section 311, p. 290; cf. Commonwealth v. Jackson, Ky., 281 S.W.2d 891. In fact, there is authority for the proposition that evidence of other crimes is admissible where it is for the purpose of identification. See 20 Am.Jur. Evidence, sec. 312, p. 292." (loc. cit. 306 S.W.2d page 828, 71 A.L.R.2d pages 447 and 448.)
Two factors are readily apparent: (1) the photographs were not referred to as "mug shots" or "rogues' gallery shots" (defendant had to rely on common knowledge alone), and (2) the reference to the incidental and remote suggestion comes in large part from the fact the jury did not know the nature or source of the photographs. Of course, it is clear the photographs were not used. Again, Colbert v. Commonwealth, supra, supplies little precedent for the problem we have here.
Another authority relied upon by the majority is 4 Wigmore on Evidence, Third Ed., section 1130, page 208. To be sure, Wigmore there says testimony of extra-judicial identification ought to be admissible. The majority fails to note the Wigmore text dealing with the use of police photographs. 3 Wigmore on Evidence, Third Ed., section 786(4), pages 162, 163 reads: "In identifying persons or material objects, it is of course more effective if the thing to be identified is so placed with others that the witness' selection appears to be unaided. This is particularly important in the identification of an accused, where the witness is shown a photograph beforehand. Nevertheless, no general rule has required this partly because of its frequent impracticability, partly because the lack of such a precaution plainly enough detracts from the value of the testimony, and partly because the witness has usually had so many prior opportunities of private verification that such a public test would often give a false appearance of spontaneous and unaided selection.
"Distinguish here the use of police photographs at the trial; in that case the fact that the photograph came from the `rougues' gallery', as shown by marks on the picture amounts to evidence of a prior record of crime, which might be inadmissible on the principles of §§ 193-194a, ante." (Emphasis added.)
1 Wigmore, sections 193 to 194(a) deal with Particular Acts to Show the Defendant's Character and notes such evidence is inadmissible as primary evidence of defendant's guilt. It is submitted that Wigmore's treatise does not support the result reached here on the facts of this case but rather is contra.
The annotation found at 71 A.L.R.2d 449 is in the same category. It cites many cases for admission of testimony of extra-judicial identification but notes real divergence of authority when reference to police photographs, mug shots and rogues' gallery shots became involved. Cf. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, Footnote 5.
Of the cases cited by the majority only a few are cases where the "mug shots" were actually allowed in evidence and the procedure was held not to be reversible error. United States v. Robinson, 7 Cir., 406 F.2d 64, 67 (1969) did not involve admissibility of the photographs but only reference to them. Even so the court held: "Thus, although we believe the terminology used by the Government was ill-advised and might call for reversal in some circumstances, such as in Reed, we hold that in the instant case it did not constitute reversible error."
In Commonwealth v. McLellan, (1966), 351 Mass. 335, 220 N.E.2d 819, the meagerness *802 of the record largely accounted for the result.
People v. Purnell, Ill.App., 245 N.E.2d 635 and People v. Maffioli, 406 Ill. 315, 94 N.E. 2d 191, are the cases cited by the majority that are comparable to this case on their facts and support the result reached. People v. Maffioli, supra, states: "He first complains that the admission of the photographs from which he was originally identified, each bearing the legend, `Police Dept., Rockford, Ill. 6874 John Maffioli 8-26-49' was prejudicial because the photographs constituted evidence of other crimes. The photographs were not received in evidence for the purpose of showing an arrest for another offense, but were properly admitted as the photographs from which defendant was first identified by eyewitnesses to the crime charged. In addition, the photographs were relevant to the material issue of defendant's style of haircut and general appearance in August, 1949. * * *." (loc. cit. 94 N.E.2d, page 193). People v. Purnell relies on People v. Maffioli; neither gives an adequate reason for complete abandonment of the prohibition against showing bad character as substantive evidence.
The rule, ignored by the Illinois courts (and by this court) which creates the conflict here explored, is well put in State v. Myrick, 181 Kan. 1056, 317 P.2d 485: "* * * All evidence, to be admissible, must be relevant, and the general rules is based upon the principle that evidence of an unrelated prior conviction is irrelevant to prove the offense charged, and has a tendency to prejudice the minds of the jury against the accused and to predispose them to a belief in his guilt. Further, that evidence of a prior conviction, when offered in the state's case in chief, violates the rule of policy which forbids the state initially to attack the character of the accused, and that which prohibits proof of bad character by particular acts (1 Wharton's Criminal Evidence, 12th ed. § 232, p. 492). The rule against the admissibility of such evidence should be strictly enforced (State v. Frizzell, supra [132 Kan. 261, 295 P. 658], Syl. ¶ 1)."
In State v. Tapia, 79 N.M. 344, 443 P.2d 514, the pictures were neither offered nor admitted and the decision turned on failure to raise the objection at trial.
Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, does not reach the problem we have here; (1) the photographs there involved were snapshots of Andrews and Simmons obtained from Andrews' sister by the F.B.I. (2) no photographs were offered or admitted in evidence, (3) the evidence was not offered in the main case but on rebuttal. The issues decided in Simmons are simply not relevant to our problem.
I do not suggest the following points constitute a rule, but for me at least, the better considered cases seem to make the following points: (1) Testimony of extra-judicial identification may, if otherwise admissible, be used to corroborate a witness (this is an exception to the general rule barring such corroborative evidence); (2) such corroborative evidence may not, by oral reference or use of the pictures themselves, refer to "mug shots", "rogues' gallery" or other terms which make it evident defendant has either an arrest or felony record; (3) ordinarily the photographs are not necessary in any event since the issue is whether there was, in fact, a prior identification from a photograph and the impermissible characterization of defendant as a person with a police record by indirection, far outweighs the benefit of the use of the photograph itself; (4) if, under particular circumstances, use of such evidence results in the implication of prior arrest or conviction, a limiting instruction should be given.
These conclusions seem to be necessary in order to allow the State a fair range of identification evidence and, at the same time, honor our long-standing rule against evidence of bad character as substantive proof of crime.
*803 Justice Fontron has admirably analyzed this matter at length in State v. Minor, supra. He put the whole matter quite succinctly in his short dissent in State v. Childs, 198 Kan. 4, 422 P.2d 898, 906. The entire dissent reads: "For reasons appearing in my dissenting opinion in State v. Minor, 195 Kan. 539, 407 P.2d 242, I am unable to agree with the majority opinion.
"I am still concerned over the admission of evidence relating to `mug shots' and police photographs at the trial of an accused where his character has not been placed in issue.
"Such a practice, in my judgment, necessarily impugns the fairness of the proceedings and should not be tolerated."
We have not had this matter before us. The majority opinion as now written allows unrestricted use of, and reference to, mug shots despite our public policy against the necessary implication of such evidence. I would reverse.
RAWLINGS, J., concurs.
NOTES
[1] Defendant appellant implicitly concedes the extra-judicial identification exception recognized above but poses the additional problem: "The question thus to be answered is whether evidence of prior crimes can be established to prove identity in such a manner as was done in the instant case." (Emphasis added).
[2] Evidence of prior arrests, as distinguished from prior convictions, has always been held inadmissible. There are fewer exceptions to this rule than there are exceptions to the rule against evidence of prior convictions. Cf. State v. Brown, 100 Iowa 50, 54, 69 N.W. 277.
[2] 29 Am.Jur.2d §§ 785, 787, 815, does not carry the same rule, possibly because the cases cited in annotation at 71 A.L.R.2d 451, show a split of authority on the problem.
|
76 F.3d 386
77 A.F.T.R.2d 96-939
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.Mari FLEETWOOD, Plaintiff-Appellant,v.UNITED STATES of America; Debra Ahn, I.R.S. Agent; PaulBeene, I.R.S. Dist. Director, Defendants-Appellees.
No. 95-35631.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 23, 1996.*Decided Jan. 26, 1996.
Before: ALARCON, HALL and BRUNETTI, Circuit Judges.
1
MEMORANDUM**
2
Mari Fleetwood appeals pro se the district court's dismissal as untimely of her motion to quash six third party recordkeeper summonses issued by the Internal Revenue Service. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
3
When an IRS summons is issued to a third party recordkeeper, the taxpayer, as a person "entitled to notice of a summons" under 26 U.S.C. § 7609(a), has twenty days from the date of notice to bring a proceeding to quash the summons. See 26 U.S.C. § 7609(b)(2)(A); Ponsford v. United States, 771 F.2d 1305, 1309 (9th Cir.1985). The twenty-day period is jurisdictional. See Ponsford, 771 F.2d at 1309.
4
We affirm the district court's dismissal as untimely of Fleetwood's petition because she did not move to quash the six summonses within the twenty-day period.
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
|
People v Graham (2019 NY Slip Op 03246)
People v Graham
2019 NY Slip Op 03246
Decided on April 26, 2019
Appellate Division, Fourth 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 April 26, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
1450 KA 17-00608
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vCHARLES GRAHAM, ALSO KNOWN AS CHUCK GRAHAM, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered August 26, 2016. The judgment convicted defendant, upon a jury verdict, of predatory sexual assault against a child (four counts), sexual abuse in the first degree and endangering the welfare of a child (four counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of, inter alia, four counts of predatory sexual assault against a child (Penal Law § 130.96) and one count of sexual abuse in the first degree (§ 130.65 [3]). We affirm.
Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction inasmuch as his motion for a trial order of dismissal was not " specifically directed' " at the alleged deficiency in the proof raised on appeal (People v Hawkins, 11 NY3d 484, 492 [2008], quoting People v Gray, 86 NY2d 10, 19 [1995]). Nonetheless, this Court " necessarily review[s] the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence' " (People v Stepney, 93 AD3d 1297, 1298 [4th Dept 2012], lv denied 19 NY3d 968 [2012]; see People v Danielson, 9 NY3d 342, 349 [2007]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson, 9 NY3d at 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457 [4th Dept 2009], lv denied 13 NY3d 942 [2010] [internal quotation marks omitted]), and we perceive no basis to disturb the jury's determinations.
We reject defendant's contention that he was deprived of effective assistance of counsel. Defendant contends that defense counsel failed to cross-examine the victim about her history of lying, but "attempting to attack the victim's credibility with . . . specific instance[s] of alleged untruthfulness [is] a tactic that is per se improper" (People v Drake, 138 AD3d 1396, 1397 [4th Dept 2016], lv denied 28 NY3d 929 [2016]), and defense counsel was not ineffective for failing to pursue a line of questioning that would have been prohibited (see People v Caban, 5 NY3d 143, 152 [2005]). Moreover, defense counsel elicited testimony from five other witnesses and defendant himself about the victim's reputation in the community for being untruthful (see People v Pavao, 59 NY2d 282, 290 [1983]), and defendant failed "to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure" to vigorously cross-examine the victim about collateral matters (People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Carver, 27 NY3d 418, 420 [2016]). Specifically, the victim's testimony on direct [*2]examination was compelling and convincing, and defense counsel may have wanted to avoid the appearance of badgering a seven-year-old and thereby alienating the jury from his client.
Defendant further contends that defense counsel was ineffective for failing to correct on cross-examination the testimony of a detective about the results of DNA testing on items of clothing taken from defendant's trailer. We reject that contention. The People did not elicit any testimony from the detective on direct examination about the results of DNA testing and, on cross-examination, without referencing any particular laboratory report, defense counsel elicited testimony from the detective that the victim's DNA was not found on any clothing obtained from defendant's trailer, and that the DNA material that was found on defendant's clothing could have belonged to his new girlfriend. Thus, the detective's testimony regarding the DNA evidence was favorable to defendant and "there is no reasonable likelihood that the [alleged] error [by defense counsel] changed the outcome of the case' " (People v Sinclair, 90 AD3d 1518, 1518 [4th Dept 2011], lv denied 18 NY3d 962 [2012]). Furthermore, inasmuch as the People did not introduce testimony from the detective regarding any out-of-court statement, testimonial in nature, that accused defendant of anything, defendant's constitutional right to confront adverse witnesses was not violated by the detective's testimony (see generally Melendez-Diaz v Massachusetts, 557 US 305, 309-311 [2009]; People v John, 27 NY3d 294, 303-308 [2016]), and defense counsel was not ineffective for failing to object thereto.
We reject defendant's contention that counsel was ineffective for failing to lay a proper foundation for the admission in evidence of posts from the Facebook page of the victim's mother that contained sexually suggestive images and innuendo. Defense counsel attempted to introduce the Facebook posts under the theory that, if the victim had seen her mother's postings, those postings could have provided a source, other than defendant, for the child's knowledge of sexual matters, and the record establishes that the court excluded the Facebook posts on the ground that they were not relevant to the issues at trial, and not on the ground that the evidence lacked a proper foundation. Moreover, we conclude that the material was properly excluded on the ground that it was not relevant inasmuch as the Facebook posts did not depict or describe genitalia or sexual acts, and defendant's suggestion that they could have provided the victim with a basis of knowledge for her accusations against him is " too remote or speculative' " (People v Johnson, 109 AD3d 1187, 1188 [4th Dept 2013], lv denied 22 NY3d 1041 [2013]; see generally People v Carroll, 95 NY2d 375, 385 [2000]; People v Odom, 53 AD3d 1084, 1087 [4th Dept 2008], lv denied 11 NY3d 792 [2008]). Thus, inasmuch as the evidence was not excluded on the ground that it lacked a proper foundation, defense counsel was not ineffective for failing to lay a proper foundation for that evidence. Viewing the evidence, the law and the circumstances of the case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant next contends that he was deprived of a fair trial by several improper evidentiary rulings by the court. We reject that contention. First, he contends that the court should not have allowed the doctor who examined the victim to testify about the elasticity of the vagina while explaining why young girls who have been sexually abused often have normal physical examinations. In response to defense counsel's objections that such testimony was not relevant, the court cautioned the jury that there was no allegation that defendant had penetrated the victim's vagina. We conclude that the court's prompt curative instruction to the jury provided an adequate remedy to alleviate any potential prejudice that was caused by the doctor's testimony (see People v Dean, 299 AD2d 892, 893 [4th Dept 2002], lv denied 99 NY2d 613 [2003]). Moreover, on summation, the prosecutor reiterated to the jury that there was no allegation that defendant had penetrated the victim's vagina and did not mention the doctor's testimony. Thus, we conclude that any error in allowing that testimony is harmless inasmuch as "the proof of defendant's guilt is overwhelming and there is no significant probability that the jury would have acquitted defendant had the error not occurred" (People v Williams, 25 NY3d 185, 194 [2015]; see People v Smith, 289 AD2d 960, 961 [4th Dept 2001], lv denied 97 NY2d 761 [2002]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant failed to preserve for our review his contention that the court improperly admitted in evidence the testimony of the People's expert witness concerning child sexual abuse accommodation syndrome (see People v Ennis, 107 AD3d 1617, 1618-1619 [4th Dept 2013], lv denied 22 NY3d 1040 [2013], reconsideration denied 23 NY3d 1036 [2014]). In any event, the court did not abuse its discretion in permitting the expert's testimony "for the purpose of [*3]explaining behavior that might be puzzling to a jury" (People v Spicola, 16 NY3d 441, 465 [2011], cert denied 565 US 942 [2011]) inasmuch as the testimony was "general in nature and [did] not constitute an opinion that [the] particular alleged victim [was] credible or that the charged crimes in fact occurred" (Drake, 138 AD3d at 1398; see People v Diaz, 20 NY3d 569, 575-576 [2013]; cf. People v Ruiz, 159 AD3d 1375, 1376 [4th Dept 2018]).
Contrary to defendant's further contention, the court did not abuse its discretion in allowing the prosecutor to ask leading questions of the child victim in this sexual abuse case (see People v Boyd, 50 AD3d 1578, 1578 [4th Dept 2008], lv denied 11 NY3d 785 [2008]; People v Greenhagen, 78 AD2d 964, 966 [4th Dept 1980], lv denied 52 NY2d 833 [1980]). Additionally, even assuming, arguendo, that, as defendant contends, two of the questions asked of the People's expert witness on direct examination were leading questions, "the decision whether to permit the use of leading questions on direct examination is a matter within the sound discretion of the trial court and will not be disturbed absent a clear demonstration of an abuse of discretion' " (People v Martina, 48 AD3d 1271, 1272 [4th Dept 2008], lv denied 10 NY3d 961 [2008]; see Jerome Prince, Richardson on Evidence § 6-232 [Farrell 11th ed 1995]), and we perceive no abuse of discretion here.
Defendant next contends that he was deprived of a fair trial by instances of misconduct by the prosecutor. Contrary to defendant's contention, "[i]nasmuch as defendant's testimony during both direct and cross-examination clearly suggested that the People's witnesses had fabricated their testimony, it was not improper for the prosecutor to ask him whether be believed the People's witnesses had lied during their testimony" (People v Head, 90 AD3d 1157, 1158 [3d Dept 2011]; see People v Buel, 53 AD3d 930, 932 [3d Dept 2008]; People v Allen, 13 AD3d 892, 897 [3d Dept 2004], lv denied 4 NY3d 833 [2005]).
Defendant did not preserve for our review his contention that the prosecutor made improper comments during summation (see People v Reyes, 144 AD3d 1683, 1686 [4th Dept 2016]; People v Lewis, 140 AD3d 1593, 1595 [4th Dept 2016], lv denied 28 NY3d 1029 [2016]). In any event, evaluating the prosecutor's comments on summation "in light of the defense summation" (People v Halm, 81 NY2d 819, 821 [1993]), we conclude that the prosecutor's comments "constituted fair comment on the evidence . . . as well as fair response to the summation of defense counsel" (People v Jackson, 141 AD3d 1095, 1096 [4th Dept 2016], lv denied 28 NY3d 1146 [2017]).
Defendant also failed to preserve for our review his contention that the prosecutor disregarded a court ruling by questioning the detective about defendant's attempt to commit suicide. At trial, the prosecutor asked the detective to describe defendant's demeanor at the end of the interview, and the detective answered that defendant became violent at the end of the interview and "wanted to harm himself." Defense counsel objected "to anything beyond that line" and the court obliged, prohibiting the prosecutor from asking "anything beyond that." Inasmuch as the court granted the relief requested by defendant and he did not seek further relief, such as striking from the record the prosecutor's question and the detective's answer or a curative instruction, defendant's contention is unpreserved for our review (see People v Goley, 113 AD3d 1083, 1084 [4th Dept 2014]). We note in any event that, although the court ruled at the Huntley hearing that the People would not be permitted to play for the jury that portion of a video recording of the interview in which defendant attempted to take his own life, the court indicated that it would not preclude the People from eliciting testimony from the detective regarding her observations of defendant. Thus, the record establishes that the prosecutor did not disregard a prior court ruling and did not exceed the bounds of legitimate advocacy (cf. People v Rosa, 108 AD2d 531, 539 [1st Dept 1985]). Defense counsel was therefore not ineffective for failing to object to the alleged instances of prosecutorial misconduct (see generally People v Lowery, 158 AD3d 1179, 1180 [4th Dept 2018], lv denied 31 NY3d 1119 [2018]; People v Black, 137 AD3d 1679, 1681 [4th Dept 2016], lv denied 27 NY3d 1128 [2016], reconsideration denied 28 NY3d 1026 [2016]).
Finally, the sentence is not unduly harsh or severe.
Entered: April 26, 2019
Mark W. Bennett
Clerk of the Court
|
Filed 10/15/13 Marriage of Kirwan CA4/3
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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of DEBRA G. and
THOMAS P. KIRWAN.
DEBRA G. KIRWAN,
G047460
Respondent,
(Super. Ct. No. 11D004572)
v.
OPINION
THOMAS P. KIRWAN,
Appellant.
Appeal from a judgment of the Superior Court of Orange County, James L.
Waltz, Judge. Affirmed.
Law Offices of Berna Warner Fredman and Berna Lynn Warner, for
Appellant.
Hughes and Hughes and Lisa Hughes, for Respondent.
INTRODUCTION
Thomas Kirwan appeals from a partial judgment entered in his divorce
from his wife of 10 years, Debra Kirwan.1 Thomas has objected to several features of the
judgment, some of which are ready for appellate review and some of which are not.
Most of the disagreements Thomas has with the judgment are matters for
the exercise of the trial court’s discretion, and, as Thomas has failed to show any abuse of
that discretion, we affirm the judgment. To the extent that Thomas wants us to
reformulate the wording of the judgment to his satisfaction, we decline to do so. As for
those portions of the case over which the trial court reserved jurisdiction, there is no final
judgment as to them, and we have no basis on which to review them until they are final.
FACTS
Thomas and Debra were married in November 2000; they separated in May
2011. They have two young children. At the time of separation, Thomas worked for
United Bank of Switzerland (UBS) as a financial advisor. He had previously worked for
Goldman Sachs and had moved to UBS in 2010.
As part of his incentive to move to UBS, the bank offered Thomas a series
of “loans” totaling nearly $1 million. These loans were to be “paid back” over nine
years, provided Thomas continued to work for UBS. If he quit, or was fired, or died, the
loans were immediately due and payable. UBS undertook to forgive a portion of the
loans each year, reducing the balance owing until, after nine years (in 2019), the loans
would be completely canceled.
This method of spreading an extra million dollars in upfront compensation
over an extended period had and has tax consequences. The amount forgiven each year
would be taxed as income, even though Thomas did not receive an equivalent amount of
1 “Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not
intend this informality to reflect a lack of respect. [Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th
1509, 1513, fn. 2.)
2
money during that year. This “phantom” income, as counsel and the court referred to it,
became a problem both for valuing and dividing the marital estate and for computing
support.
The other sticky wicket was a townhouse in Corona del Mar in which
Debra and the children were living at the time of trial. Thomas bought this property
before he and Debra married. He quitclaimed the property to a trust in both their names
jointly in 2003.2 The parties stipulated as to its value at trial, which was less than the
debt on it by about $25,000. The marital balance sheet submitted at trial by Thomas’
expert listed the value of his separate property interest in the townhouse at $263,250.
The case was tried over five days in March and June 2012. The court
entered a judgment in August 2012 which provided, as pertinent to this appeal, as
follows:
1. The townhouse was to be sold.
2. Thomas was to pay Debra $7,500 per month in temporary child and
spousal support until further order of the court. The court would determine the level of
permanent support after the sale of the townhouse.
3. The court reserved jurisdiction to determine the division of the UBS
debt.
DISCUSSION
Thomas has identified seven issues on appeal, which can be grouped into
two main categories: those relating to the townhouse and those relating to the UBS loan.
As to the townhouse, Thomas asserts that the court should not have ordered it to be sold,
because, under Family Code section 3801, Thomas had the financial wherewithal to pay
2 Thomas and Debra rented this property during their marriage and lived in a house in Newport
Coast. Debra and the children moved into the townhouse in August 2011. The Newport Coast house went on the
market, and Thomas moved into an apartment. The house was sold (at a loss) just before trial.
3
the taxes, the mortgages, and other related expenses. Instead, the court should have
awarded the property to Thomas. In addition, the court ignored both Thomas’ separate
property reimbursement right under Family Code section 2640 for the townhouse’s value
at the time it became community property and his separate property reimbursement right
for payments made on the townhouse’s expenses after judgment. The trial court also
erred by postponing its determination of permanent spousal support until the property
was sold. As to the UBS loan, the court did not divide the debt equally between Thomas
and Debra, and the judgment did not explicitly state that his phantom income would not
be considered when it came time to calculate permanent support.
Before we address these issues, however, we must deal with a preliminary
one, our role on appeal. In family law, judges are afforded wide discretion to fashion
appropriate solutions to problems of support and equal property division. (In re
Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, 773 [temporary spousal
support]; In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572 [division of
community property].) We review these solutions for abuse of discretion, and if
substantial evidence supports them, we affirm. (In re Marriage of Duncan (2001) 90
Cal.App.4th 617, 632.) As we do in other kinds of appeals, we review questions of law
de novo. (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 384.)
Ordinarily, the judgment of a lower court is presumed correct, and a
reviewing court indulges all intendments and presumptions in favor of its correctness. A
party can avoid application of these inferences by following the procedure set forth in
Code of Civil Procedure sections 632 and 634, that is, by requesting a statement of
decision and, if dissatisfied with the statement, objecting to it in the ways provided in
Code of Civil Procedure section 634. (In re Marriage of Arceneaux (1990) 51 Cal.3d
1130, 1133.)
Thomas claims he filed a request for a statement of decision, and he refers
us to an attachment to his response to Debra’s petition for dissolution, filed June 9, 2011:
4
“Pursuant to Code of Civil Procedure Section 632 and California Rules of Court, Rule
3.1590, Respondent hereby requests a Statement of Decision with respect to any
contested issue submitted to the Court for determination in the within proceeding.
Respondent respectfully requests that, with respect to any issue submitted to the Court for
determination, the Court include in the Statement of Decision, any and all calculations
upon which the determination of any issue was made, including but not limited to, issues
of spousal support, child support, property valuation, property division, tax consequences
and attorneys’ fees.”
Code of Civil Procedure section 632 provides in pertinent part: “The court
shall issue a statement of decision explaining the factual and legal basis for its decision as
to each of the principal controverted issues at trial upon the request of any party
appearing at the trial. The request must be made within 10 days after the court announces
a tentative decision unless the trial is concluded within one calendar day or in less than
eight hours over more than one day in which event the request must be made prior to the
submission of the matter for decision. The request for a statement of decision shall
specify those controverted issues as to which the party is requesting a statement of
decision. After a party has requested the statement, any party may make proposals as to
the content of the statement of decision.” (See also Cal. Rules of Court, rule 3.1590(d).)
Thomas’ request for a statement of decision did not conform to the
requirements of Code of Civil Procedure section 632. A “statement of decision calls on
the trial court to act. Such a request cannot reasonably be deemed accomplished until the
court knows what is requested.” (Staten v. Heale (1997) 57 Cal.App.4th 1084, 1091; see
also In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1134, [“[F]irst, a party must
request a statement of decision as to specific issues to obtain an explanation of the trial
court’s tentative decision.”].)
Thomas did not request a statement of decision within 10 days after the trial
court announced its tentative decision. Nor did his generic request, attached to the end of
5
his response (filed long before trial even commenced) specify the controverted issues that
the statement of decision was supposed to address. Moreover, although he moved for a
new trial, the new trial motion did not bring any omission or ambiguity in a statement of
decision to the trial court’s attention, as required by Code of Civil Procedure section 634;
there was no statement of decision because none had been properly requested. We
therefore indulge all intendments and presumptions in favor of the trial court’s judgment.
(See In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.)
I. The Townhouse
A. The Sale Order
Thomas objects to the portion of the judgment ordering the sale of the
Corona del Mar townhouse. Both parties stipulated to the fair market value of the
property – $1,210,000 – and they stipulated to the total amount of debt on the townhouse
– $1,234, 961.3 The property is thus under water by approximately $25,000.
There can be no question as to a trial court’s authority to order the sale of
community property assets in order to effect the equal division of the community estate
mandated by Family Code section 2550.4 (See In re Marriage of Cream (1993) 13
Cal.App.4th 81, 89 [decided under Civ. Code § 4800]; In re Marriage of Davis (1977) 68
Cal.App.3d 294, 306-307 [same]; In re Marriage of Holmgren (1976) 60 Cal.App.3d
3 The parties stipulated as to the value of the townhouse toward the end of the trial for purposes of
finalizing a marital balance sheet for the court. Before the parties stipulated, however, a jointly hired appraiser had
assigned different values to the property. The first appraisal came in at $1.3 million, which meant there was some
equity in the property. The appraiser then changed his mind and valued the property at either $975,000 or $1
million. Taking the lower figure would result in the property being $260,000 underwater.
Thomas appears to be backpedaling on the stipulation. In his opening brief, he argues that the
actual fair market value of the property is really under $1 million. He does not appear to notice what this position
does to his contention that the property should have been awarded to him because he could refinance it.
4 As the court stated, “If I don’t have confidence in the appraisal . . . particularly as and for real
estate, I sell things and that way I am very confident that I’m treating each side fairly, because I’m dividing dollars. .
. . [¶] . . . [¶] . . . If at the end I’m not convinced that I know what that property is worth, I know how to find out. I’ll
sell it.” “[Awarding the home to one party] would be an unequal distribution of the estate and in violation of Family
Code section 2550.”
6
869, 873 [same].) Substantial evidence supported this decision, including the
substantially different values the real estate appraiser assigned to the property.
Thomas argues that the townhouse should have been awarded to him,
because otherwise the parties would have to absorb a loss, borrowing money or cashing
out retirement plans to pay off the debt after the property is sold. He also claims he could
refinance the townhouse and giving it to him would relieve Debra of her obligations on
the mortgage and the line of credit. Finally, he faults the trial court for considering the
effect on the children of having one parent installed in a familiar environment while the
other is living in a newly acquired apartment.
None of these arguments gives sufficient grounds for finding an abuse of
discretion. It is impossible to know what price the townhouse would command, so
Thomas’ contention that the parties would have to make up a shortfall is speculation, as is
the source of the money to make it up if there was one. Thomas presented no evidence at
trial that he could refinance the property, and the trial court remarked in passing only that
he might be able to do so, not that he definitely could.5 While it is gallant of Thomas to
wish to relieve Debra of her obligations on the debt, awarding the townhouse to him
would also relieve her of her share of an asset in a real estate market that is, in some areas
at least, recovering. And although the trial court was clearly concerned about non-
economic aspects of awarding the townhouse to one or the other parent, Thomas has not
presented us with any authority suggesting that such considerations are improper or an
abuse of discretion.
The stipulation into which the parties entered as to the value of the
townhouse applied to the division of marital assets. In the context of selling the property,
however, the stipulation is irrelevant. The parties could not stipulate as to what the buyer
of the townhouse would pay for it. After the townhouse sells and the debts are paid off,
5 The court also said, “I suspect neither one of you will be able to afford this house given the
leftovers after paying support and receiving support. . . “
7
the court can determine, first, whether there is anything left to divide and then who gets
what. The court was clearly well within the bounds of its discretion when it adopted this
procedure.
B. Economic Feasibility
Thomas contends the court should have awarded him the house because he
met the “feasibility standard” of Family Code section 3801 and Debra did not.6 Family
Code section 3801 deals with an order deferring the sale of a home. No such order was
entered in this case. Family Code section 3801 does not apply.
C. Thomas’ Right to Separate Property Reimbursement
Thomas makes two contentions with respect to separate property
reimbursement. First, he should be reimbursed for the value of the townhouse at the time
it became community property if there is anything left over after the property is sold.
Second, he should be reimbursed for the postjudgment payments he has made on the
property’s debt, insurance, and taxes.7 We address each contention in turn.
1. Separate Property Contribution Reimbursement
Family Code section 2640, subdivision (b), provides: “In the division of
the community estate under this division, unless a party has made a written waiver of the
right to reimbursement or has signed a writing that has the effect of a waiver, the party
shall be reimbursed for the party’s contributions to the acquisition of property of the
community property estate to the extent the party traces the contributions to a separate
property source. The amount reimbursed shall be without interest or adjustment for
change in monetary values and may not exceed the net value of the property at the time
of the division.” Separate property contributions are reimbursed before dividing up the
community’s assets. (In re Marriage of Walrath (1998) 17 Cal.4th 907, 913.) The value
6 In his reply brief, Thomas retreated from this position, claiming that the references to Family Code
section 3801 were merely illustrative.
7 Thomas also relies on these contentions as further supporting the award of the property to him.
8
of the separate property at the time of its contribution determines the amount of the
reimbursement. (In re Marriage of Weaver (2005) 127 Cal.App.4th 858, 866.)
With respect to his reimbursement for the value of the property when it was
converted, the amount of this reimbursement would await the sale of the property. If the
parties managed to sell it for more than the debt, Thomas would theoretically be entitled
to take his reimbursement “off the top,” up to the net value of the property at the time of
division.
There is, however, a problem with computing the value of Thomas’
separate property contribution. He presented no evidence of this amount at trial.
Thomas’ expert put a number on the marital balance sheet he submitted to the court on
Thomas’ behalf, but the source of the number is a mystery.8 His expert was not engaged
to do a real estate valuation, and Thomas himself did not testify about the value of the
property in 2003.9
Accordingly, Thomas did not carry his burden at trial of establishing the
amount of his separate property contribution. (See In re Marriage of Geraci (2006) 144
Cal.App.4th 1278, 1287-1288.) There is, therefore, no evidence to establish Thomas’
right to reimbursement for his separate property contribution of the townhouse. (See In
re Marriage of Braud (1996) 45 Cal.App.4th 797, 824-825 [evidence inadequate to
support separate property source of funds; award reversed]; see also In re Marriage of
Nicholson & Sparks (2002) 104 Cal.App.4th 289, 296, fn. 11 [inconsistent testimony and
failure to produce supporting documents].) The court did not “ignore” Thomas’ separate
8 The expert testified on direct examination, “I previously traced a separate property component of
$263,250 to – as being due to [Thomas’] separate property, but because it’s under water, the negative amount goes
only to the community property. I’ve allocated that to [Thomas].” On cross-examination, he was asked, “[Y]ou
have . . . $263,000, which is a number you have for what would have been [Thomas’] separate-property interest in
[the townhouse] if there were – you value this property to support that?” The expert responded, “That’s correct.”
There was some confusion about this question, and it was withdrawn shortly afterward. This is all the testimony
regarding Thomas’ separate property interest in the townhouse.
9 The need for testimony on this issue was mentioned on the first day of trial. The amount
contributed would be the net value, that is, minus any encumbrances. (See In re Marriage of Rico (1992) 10
Cal.App.4th 706, 710.) There was no testimony regarding any encumbrances on the townhouse in 2003.
9
property contribution to the townhouse. Indulging all intendments and presumptions in
favor of the judgment supports the trial court’s implied ruling that Thomas did not
present adequate evidence regarding the amount of his contribution.10
2. Postjudgment Separate Property Reimbursement
The judgment ordered Thomas and Debra to each pay half of the debt,
taxes, and insurance on the townhouse, pursuant to the parties’ stipulation.11 Debra was
to live there with the children until it was sold. The court reserved jurisdiction to make
any further orders necessary with respect to the property.
Thomas now argues that this aspect of the judgment does not preserve his
right to reimbursement for using separate property income to pay a community property
obligation. He cites In re Marriage of Epstein (1979) 24 Cal.3d 76, superseded by statute
on other grounds) (Epstein), to support his argument that he is entitled to be reimbursed
for postseparation separate property payments on a community debt. (See id. at pp. 84-
86.)
So far as we can tell, the court has not resolved the issue of Thomas’
Epstein credits. The court ordered him to pay temporary support pending the sale of the
townhouse and reserved the issue of permanent support for after the sale. We find
nothing in the judgment dealing with Thomas’ reimbursement for paying part of the
townhouse’s expenses, one way or the other. After the property is sold and the court
determines permanent support, the parties and the court can settle up Thomas’ Epstein
credits, if any.12 As to this aspect of the judgment, there is nothing for us to review.
10 If no one requests a statement of decision after a bench trial, then the reviewing court must infer
that the trial court made implied factual findings “favorable to the prevailing party on all issues necessary to support
the judgment, including omitted or ambiguously resolved issues.” (Fladeboe v. American Isuzu Motors Inc. (2007)
150 Cal.App.4th 42, 60 (Fladeboe).) These include findings even “on matters as to which the record is silent . . . .”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We then review the implied factual findings for substantial
evidence. (Fladeboe, supra, 150 Cal.App.4th at p. 60.)
11 The parties stipulated as to this division of expenses for the months of July and August 2012. The
judgment, however, did not limit payments to these two months.
12 Thomas would not be entitled to reimbursement to the extent all or part of his payments
discharged his support obligations. (Epstein, supra, 24 Cal.3d at p. 85.)
10
II. The Temporary Support Order
Thomas contends the trial court was required, as a matter of law, to order
permanent spousal support and that ordering temporary spousal support instead was error
as a matter of law.13 We review a question of law de novo. (In re Marriage of Bodo,
supra, 198 Cal.App.4th at p. 384.)
Thomas argues the court had to make a permanent support order because
this was a final judgment. The short answer is that the judgment was not final as to
several reserved issues – not only support but also the results of the property sale and the
allocation of the UBS debt. Because the court ordered the townhouse sold, Debra had to
find another residence for herself and the children. The court accordingly held off setting
the amount of permanent support until she could show what her new housing expenses
would be. The court had the authority to make an order for temporary support even after
judgment was entered on some issues. (See See v. Superior Court (1961) 55 Cal.2d 279,
280-281.)
Thomas’ main complaint with respect to the support portion of the
judgment appears to be that, after a five-day trial, he must return to court, because all
issues were not resolved. Thomas, or his counsel, would have to return to court in any
event, if only after the sale of the townhouse. This was a complex case, and we’ve been
given no reason the court should have valued speed over careful thought and waiting to
see how things played out.
As of the end of trial, Debra was a 55-year-old woman with minimal
education and two young children. Within a few months, she would have to find a new
place to live and some way of making her own money. She and Thomas had been living
significantly above their means for at least two years, so there was going to be a
13 The judgment provides that both the spousal and child support orders are temporary only and
would be revisited upon the sale of the townhouse. The court ordered Thomas to pay Debra $3,750 per month in
spousal support starting on July 15, 2012, and continuing until further order. The court also made findings under
Family Code section 4320.
11
substantial decrease in Debra’s standard of living and in the children’s as well. The court
had the authority to postpone a permanent support order until the other aspects of the
property division fell into place.
III. The UBS Loan
Lastly, Thomas complains that the trial court did not divide the tax liability
for the UBS loan equally between himself and Debra. He argues Debra should have been
required to pay half of the taxes on the phantom income for the year 2011.
In the judgment, the trial court specifically retained jurisdiction to divide
most of the debt at a later time.14 In other words, the court has not yet decided how to
apportion the liability for this debt. The court certainly acted within its discretion in
retaining jurisdiction over this aspect of the marital estate. When it does reopen this
issue, Thomas can make his case for Debra’s contribution to the 2011 tax payment. At
this point, however, the liability for the loan has not been finally adjudicated, and an
appeal from this portion of the judgment is premature.
Thomas’ other complaint with respect to the UBS loan is, if we have
understood it correctly, that the trial court did not specifically state in the judgment that
the phantom income is not to be considered income for purposes of calculating support.
He wants “appropriate language” included in the judgment to ward off “the risk that he
will be charged with ‘income’ which he does not receive and required to pay support
based on it.” Thomas does not identify the source of this “risk.” He also acknowledges
that the temporary support ordered by the trial court is based on yearly earnings that do
not include the phantom income.
This court dealt with a nearly identical set of facts in In re Marriage of
Riddle (2005) 125 Cal.App.4th 1075 (Riddle). In that case, as in this one, the husband
14 The court ruled that $4,387 of the debt was Thomas’ sole and separate obligation. It also
determined that it would not credit Thomas for payments already made.
12
was a financial advisor for a major investment firm. He too received a loan from his
employer “in order to lure [him] away from his prior employer” (id. at p. 1078), and he
too received phantom income on his monthly earning statement equal to the amount of
the loan and interest being forgiven each month. (Ibid.) As we observed in Riddle,
“The reason for this convoluted system of payment is fairly obvious: It allowed the
employer to pay Husband big bucks up front, but spread out the payment of tax on the
payment over time so as to circumvent the progressivity of the tax codes.” (Ibid.)
Our holding on this point in Riddle applies to this case as well, at least as to
portion of the payments attributable to child support: “[I]f the tax laws say you have
income because of forgiveness-of-debt, you have income, and that forgiveness-of-debt
income must go into the calculation of adjusted gross income under [Family Code]
section 4058, subdivision (a), which in turn is the basis for income under [Family Code]
4059, subdivision (a). Now, there is authority . . . to ameliorate the harsh effects of
assessing ‘phantom’ income as imputed by the tax laws under the circumstances of a
given case . . ., but that doesn’t mean that so-called ‘phantom’ income as imputed by the
tax laws is any less ‘income’ for purposes of [Family Code] section 4058, subdivision
(a).” (Riddle, supra, 125 Cal.App.4th at p. 1080.)
The trial court has not yet set an amount for permanent support, and we
would improperly encroach on the trial court’s discretion were we to tell the court how to
frame the final support order. As of now, Thomas’ support obligation does not take his
phantom income into account, so he is not an aggrieved party. (See Code Civ. Proc., §
902.) What might happen in the future can only be dealt with in the future.
13
DISPOSITION
To the extent that the judgment is final, it is affirmed. Respondent is to
recover her costs on appeal.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
14
|
SHERRY RADACK CHRISTOPHER A. PRINE
CHIEF JUSTICE CLERK OF THE COURT
TERRY JENNINGS JANET WILLIAMS
EVELYN KEYES CHIEF STAFF ATTORNEY
LAURA CARTER HIGLEY
JANE BLAND
MICHAEL MASSENGALE
Court of Appeals PHONE: 713-274-2700
FAX: 713-755-8131
HARVEY BROWN
REBECA HUDDLE
First District of Texas
www.txcourts.gov/1stcoa.aspx
RUSSELL LLOYD 301 Fannin Street
JUSTICES
Houston, Texas 77002-2066
May 14, 2015
Harris County District Clerk's Office -
Criminal
Harris County District Clerk - Criminal
1201 Franklin, Ste 3180
Houston, TX 77002
* DELIVERED VIA E-MAIL and HARRIS
COUNTY MESSENGER *
ATTENTION: Barbara Anderson
RE: Court of Appeals Number: 01-15-00421-CR Trial Court Case Number: 1314602
Style: Albert Lynch v. The State of Texas
Pursuant to this Court’s December 23, 2014 order, SX Nos. 31, 40, 134 and 135 were
ordered filed for our review during the pendency of the appeal.
Pursuant to 1997 Supreme Court Order B.4, SX Nos. 31, 40, 134 and 135 are being
returned to the District Clerk’s Office.
Sincerely,
Christopher A. Prine, Clerk of the Court
By Ora Patterson, Deputy Clerk
** PLEASE SIGN AND RETURN TO THE FIRST COURT OF APPEALS.
Received by: Date:
|
873 F.2d 1427
11 ITRD 1065
SAMSUNG ELECTRONICS CO., LTD., Samsung Electronics ofAmerica, Inc. and Samsung International, Inc.,andGoldstar Co., Ltd., Goldstar Electronics International, Inc.and Goldstar of America, Plaintiffs-Appellants,v.The UNITED STATES, U.S. Department of Commerce, Malcolm T.Baldrige, Secretary of Commerce, Bruce Smart, UnderSecretary of Commerce, Paul Freedenberg, Assistant Secretaryfor Trade Administration, Gilbert B. Kaplan, DeputyAssistant Secretary for Import Administration, U.S. CustomsService and William Von Raab, Commissioner of Customs,Defendants-Appellees,Zenith Electronics Corporation, Defendant-Appellee,Independent Radionic Workers of America, InternationalBrotherhood of Electrical Workers, International Union ofElectronic, Electrical, Technical, Salaried and MachineWorkers, AFL-CIO and Industrial Union Dept., Defendants-Appellees.
Nos. 89-1023, 89-1042.
United States Court of Appeals,Federal Circuit.
May 10, 1989.
Michael P. House, Dow, Lohnes & Albertson, Washington, D.C., argued for plaintiffs-appellants Goldstar Co., Ltd., et al. With him on the brief were William Silverman and R. Will Planert. Sukhan Kim, Thomas B. Wilner and Jeffrey M. Winton, Arnold & Porter, Washington, D.C., were on the brief for plaintiffs-appellants Samsung Electronics Co., Ltd., et al.
Elizabeth C. Seastrum, Dept. of Justice, Washington, D.C., argued for defendants-appellees. With her on the brief were John R. Bolton, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Michael A. Levitt, Acting Gen. Counsel, Stephen J. Powell, Chief Counsel and Mark J. Sadoff, Atty.-Advisor, U.S. Dept. of Commerce, of counsel. Larry Hampel, of Frederick L. Ikenson, P.C., Washington, D.C., argued for defendant-appellee Zenith Electronics Corp. With him on the brief were Frederick L. Ikenson and J. Eric Nissley. Paul D. Cullen and Laurence J. Lasoff, Collier, Skannon, Rill & Scott, Washington, D.C., were on the brief for defendants-appellees Independent Radionic Workers of America, et al.
Before RICH and MAYER, Circuit Judges, and NICHOLS, Senior Circuit Judge.
PER CURIAM.
DECISION
1
The judgment of the United States Court of International Trade, 692 F.Supp. 1382 (1988), upholding the determination of the Department of Commerce that separately imported color picture tubes and printed circuit boards, when subsequently assembled together, are within the scope of the antidumping duty order covering complete and incomplete color television receivers from Korea, 49 Fed.Reg. 18,336 (Dep't Comm.1984), is affirmed.
OPINION
2
Appellants Samsung and Goldstar raise an issue on appeal that was not expressly covered in the trial court's opinion. We address it here; on all other issues we affirm on the basis of the court's opinion, which we adopt.
3
Appellants assert that Commerce defined the scope of its antidumping duty order by reference to specific tariff classifications. Pointing out that the classifications under which color picture tubes and printed circuit boards are dutiable are not among those enumerated, appellants argue that they are not, therefore, properly within the scope of the order.
4
We have no reason to believe that Commerce did not intend to include items dutiable under the specified classifications within the scope of the order. Contrary to appellants' contention, however, we likewise have no reason to believe Commerce intended to limit the order to those items. Indeed, Commerce could not have been clearer that its intention was precisely the opposite: "This investigation is intended to cover all color television receivers regardless of tariff classifications." 49 Fed.Reg. at 18,337. In any event, it is eminently reasonable for Commerce to omit the separate classifications of tubes and boards: all parties agree that, when unassembled, these items do not constitute "color television receivers, complete or incomplete." Id.
5
All parties also agree that, "when assembled," ITC Final Determination at 3-4, tubes and boards do constitute incomplete receivers. Appellants would have us read "when assembled" as "when imported assembled," or at least "when covered on the same import entry," thus confining the temporal ambit of the word "when" to the moment of importation. But this construction artificially restricts the plain meaning. In classification cases a higher duty can be imposed where the importer's intention is to combine two separate components, after importation, to make an article that is classified at the higher duty. See Isaacs v. Jonas, 148 U.S. 648, 653, 13 S.Ct. 677, 679, 37 L.Ed. 596 (1892). The rule is that "[w]hen it is found that the article imported is in fact the article described in a particular paragraph of the tariff act," separate packaging of parts of the article "to avoid the specified duty on the article as a whole," "is simply a fraud on the revenue and cannot be permitted to succeed." United States v. Citroen, 223 U.S. 407, 415, 416, 32 S.Ct. 259, 260, 260, 56 L.Ed. 486 (1912). We see no reason for a different rule here.
6
AFFIRMED.
7
NICHOLS, Senior Circuit Judge, dissenting.
8
Respectfully, I dissent. The result-oriented court decision may be less favored now than a few years ago, but doubtless never will become extinct. It is a temptation to which all of us must occasionally yield unless someone obnoxiously takes on himself the role of little boy in the "emperor has no clothes" fable.
9
What is happening I shall briefly state, and then continue with the law. In 1983, the Department of Commerce, on complaint of various unions, and upon reviewing their petition, initiated an antidumping investigation, after which it found reasonable ground to believe that color television receivers from Korea were being sold in the United States at less than fair value. It specified what was being sold: "color television receivers complete or incomplete" and under what tariff paragraphs they were classified. There is administrative precedent on what an "incomplete" receiver is. Unfortunately, Commerce failed to specify certain important component parts, when imported separately for later incorporation in this country into complete receivers: "color picture tubes" (CPT) and "printed circuit boards" (PCB). They are "incomplete" receivers only if joined together; all agree as to that. There was then, and has been since, a substantial import trade in these important components. They are classified eo nomine under Tariff Schedules of the United States (TSUS) items 687.35 (CPT) and 685.1564 (PCB). Through somebody's blunder, these items were left out when the Commerce Department specified the TSUS classification numbers of the sets and components that were subjects of the investigation under 19 U.S.C. Sec. 1673a(c)(2). By the later-strained effort to correct the mistake, I gather it is very serious and undercuts the effect the proceeding has had, or was hoped to have, on color televisions imported complete, or incomplete, or in parts, from Korea, at less than fair value. The motivation for a result-oriented decision is great. It is not denied that 1986 would have been too late to amend the decision to add items initially left out and not included in the investigation. At any rate, after repeatedly making noises that seemed to exclude CPT's and PCB's from the investigation, if imported separately, the Commerce Department, in 1986, reversed its field and attempted to make it appear in a "Scope Clarification Order" that CPT's and PCB's have been intended and were covered all along, at least when used in this country in the manufacture of new sets and not for repair or replacement. The Court of International Trade has put on its blinders and cannot perceive the manifest illegality of enlarging the scope of the proceeding in this drastic manner, and now we have joined the club.
10
There can be no doubt that the Koreans import CPT's and PCB's in entries separate from other components and from each other so as to distance them, legally, from the complete and incomplete television receivers which are the subjects of the proceeding, but there is no suggestion that this is evasion rather than avoidance of dumping duty. Until now there has been no challenge to the proposition that an importer enjoys the privilege of fashioning and packaging his goods for import in the form and manner that, absent deception, will obtain for him the most favorable tariff treatment. United States v. Citroen, 223 U.S. 407, 32 S.Ct. 259, 56 L.Ed. 486 (1912). By TSUS General Headnote 10(ij)--
11
A provision for "parts" of an article covers a product chiefly used as a part of such article, but does not prevail over a specific provision for such part.
12
There can be no doubt, therefore, that CPT's and PCB's are dutiable under 687.35 and 685.1564, respectively. 687.35 reads:
Television Picture Tubes
13
Color * * *
14
Other * * *
685.1564 reads:
Not having a picture tube:
15
Printed circuit boards * * *.
16
And by United States v. Citroen, what is meant to be done with them after importation does not matter.
17
It is equally clear the term "incomplete receiver" must embrace in an importation both a CPT and a PCB. See Part 5, statistical headnote 8.
18
The Commerce Department's Final Determination notice of March 1984, 49 Fed.Reg. 7620, 7621, lists the scope of the determination. It reads:
19
The merchandise covered by this investigation is color television receivers, complete or incomplete. This investigation is intended to cover all color television receivers regardless of tariff classifications. [But nothing said about parts.] The merchandise is currently classifiable under [listing 13 TSUS items, none of them 687.35 or 685.15 with 64 or any other subhead].
20
The Court of International Trade relied on the fact the CPT's and the PCB's were going to be combined at some date after importation, but under the Citroen doctrine that fact does not matter.
21
Actually the Court of International Trade and its defenders among the parties rely, expressly or sub silentio, on some supposed rule that Commerce may make its own tariff classification for antidumping cases and is not required to use those devised for conventional duty cases. I do not doubt that Commerce could devise its own language if it wished, and if it made itself understood it would not matter if it deviated from conventional tariff classification rules. But it did not choose to do so. It saw fit to identify what its decision covered by reference to TSUS items, the standard nomenclature of conventional tariff classification. Why? For the obvious reason it wanted customs officials to know on what entries to suspend liquidations. If you speak a sentence in French, you must expect to be understood as a Frenchman in Paris would be. It is no time to introduce words given your own subjective meaning on the Alice in Wonderland model.
22
Just as there was no notice that CPT's and PCB's imported separately were included in the investigation and resultant determination, so also there was none that the classification of CPT's and PCB's as in or out of the case was to be made according to their end use in the United States. This was contrary to the usual customs rule, United States v. Citroen, supra, and if it was to be done, notice should have been given. We are referred to no provision of statute, regulation, or case law, making such a result automatic.
23
I would never represent that the former customs courts were impeccable in their approach to customs law, but one fault they avoided. They did not indulge in result-oriented jurisprudence. If they erred in that regard, it was in the opposite direction. At times importers, especially in pre-TSUS days, were "stuck" with duties far higher than they had anticipated, because of some overlooked aspect of the merchandise that was economically unimportant but controlled its tariff classification and rate of duty. On the other hand, importers occasionally discovered some loophole to avoid high duties intended to apply to their products, by altering them in some respect, insignificant except for its tariff effect. This state of uncertainty was considered to be a "nontariff barrier." In both cases, courts exhibited a fine disregard for the benefit or ill their interpretations caused the body politic. TSUS attempted to, and largely succeeded in, correcting this by taking tariff classification away from the courts with an enormous list of eo nomine classifications that could not be ignored: at least, could not be until now. To say that an eo nomine classification of a part can be ignored, and the part, because of its end use treated as the whole, unfinished, is a shattering blow to post-TSUS jurisprudence, and its effort to remove "nontariff barriers."
24
Customs law has ceased to be a matter of domestic interest only, as Congress so disastrously treated it in 1930, with the odious Smoot-Hawley Tariff Act of that year. It is a matter of international concern. This is particularly true of antidumping and countervailing duties. They have long been matters dealt with in the GATT, and it has been difficult to reconcile our, at times, drastic laws with internationally recognized standards of fair dealing. Congress has undertaken to master this problem in part by codifying procedures other countries can notice and rely on, and in part by "judicializing" the process so that procedural, as well as substantive, rights can be recognized and enforced in courts.
25
It was doubtless a mistake to omit CPT's and PCB's, imported separately, from the 1983 proceeding respecting Korean color televisions. It was, mistake or not, a decision businessmen must have relied on in making business decisions, and Commerce must live with it. It is a worse mistake, especially in light of the background, to impute to the original authors of the investigation an intent they never expressed until 1986, and then in order to correct the mistake they made in 1983. Result-oriented jurisprudence could not find a worse place in which to raise its head.
|
659 F.2d 19
Ernesto R. MONTANA, Jr., et al., Petitioners-Appellants,v.COMMISSIONERS COURT, et al., Respondents-Appellees.
No. 81-1433.
United States Court of Appeals,Fifth Circuit.
Unit A
Sept. 15, 1981.
Ernesto R. Montana, Jr., pro se.
Joe Neaves, Sheriff, San Antonio, Tex., for respondents-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before GEE, GARZA and TATE, Circuit Judges.
PER CURIAM:
1
While a pretrial detainee incarcerated at the Bexar County Jail in San Antonio, Texas, appellant Montana, together with a fellow inmate, sought permission from the district court to proceed in forma pauperis on a civil rights suit challenging the constitutionality of certain prison conditions. The complaint under 42 U.S.C. § 1983 named the county sheriff as one of the defendants and alleged twelve separate claims: (1) denial of conjugal visits; (2) denial of contact visits; (3) denial of adequate recreational facilities; (4) censorship of mail; (5) prohibition of pornographic publications; (6) unreasonable cell searches; (7) arbitrary punishments; (8) restrictions on use of television; (9) restrictions on use of radio; (10) failure to provide a professional hair stylist; (11) failure to provide adequate amounts of clean wearing apparel, sheets, and towels and to provide pillows, undershorts, and socks; and (12) restrictions on telephone privileges. Injunctive relief on each of these claims was sought. Without discussing the merits of any individual claim, the district court sua sponte dismissed the entire complaint pursuant to 28 U.S.C. § 1915(d), finding that the action was frivolous and that the defects in the complaint could not be cured by amendment. The court did not rule on whether Montana qualified for in forma pauperis ("IFP") status.
2
Montana filed a timely notice of appeal and moved for permission to proceed IFP on appeal. The district court denied such status, certifying that an appeal would be frivolous, "wholly without merit," and would not be taken in good faith. Montana seeks review of this ruling, pointing out in his appellate pleadings that during pendency of the suit his claim concerning telephone privileges was remedied by the defendants. He does not indicate whether he is still a pretrial detainee. His appellate pleadings contain an affidavit of poverty which reveals that he is indigent.
3
Pursuant to 28 U.S.C. § 1915(d), a district court has the authority to dismiss a case when an action is frivolous or malicious, and the authority to dismiss under section 1915(d) is broader than dismissal under Federal Rule of Civil Procedure 12. Green v. City of Montezuma, Georgia, 650 F.2d 648 at 650 (5th Cir. 1981), citing Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir. 1973), and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979). The standard for determining the legal sufficiency of a complaint for purposes of section 1915(d), however, is the same one enunciated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), i. e., that "a complaint should not be dismissed for failure to state a claim 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." (Quoted in Green v. City of Montezuma, Georgia, at 651). Since Montana's complaint is pro se, it should not be held to as rigorous a standard as the formal pleadings prepared by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972).
4
I. Conjugal Visits.
5
The complaint alleges that plaintiff Montana was deprived of private physical facilities where he and his spouse could "exercise their marital physical obligations." It is well settled that "(f)ailure to permit conjugal visits does not deny an inmate a federal constitutional right." McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975); Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971) (federal prisoner). The State of Texas is not required to permit prisoners conjugal visits. Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978). While penal authorities in foreign countries have allowed prisoners to continue conjugal relationships with their spouses, no precedent exists for such practices in United States institutions. See, e. g., Tarlton v. Clark, 441 F.2d at 385. In view of the above authorities, the court's dismissal of this claim as frivolous under 28 U.S.C. § 1915(d) was proper.
6
II. Contact Visits.
7
The complaint alleges that the jail only allows visits within closed glass surroundings where communication is by telephone and touching of spouse or family members is prohibited. Whether pretrial detainees have a constitutional right to contact visits is one of the questions presented in a case pending in the Supreme Court. See Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) (en banc), cert. granted sub nom. Ledbetter v. Jones, --- U.S. ----, 101 S.Ct. 3106, 69 L.Ed.2d 970 (1981). This court in Jones v. Diamond, 636 F.2d at 1377, held that contact visits may be denied pretrial detainees for "legitimate security reasons." In a concurring and dissenting opinion, Judge Coleman of this court, joined by Judges Ainsworth, Charles Clark, Roney, Gee, Hill, Fay, Garza, Henderson, and Reavley, opined that "(c)ontact visitation for pretrial detainees is not a right guaranteed by the Federal Constitution." 636 F.2d at 1390. In Bell v. Wolfish, 441 U.S. 520, 560 n.40, 99 S.Ct. 1861, 1885 n.40, 60 L.Ed.2d 447 (1979), the Supreme Court stated that it was not expressing an opinion as to whether pretrial detainees have a constitutional right to contact visits. The Second Circuit has held that pretrial detainees have a constitutional right to contact visits. See, e. g., Marcera v. Chinlund, 595 F.2d 1231, 1237 (2d Cir. 1979) (Marcera is currently on remand to the district court); Wolfish v. Levi, 573 F.2d 118, 126 n.16 (2d Cir. 1978), rev'd on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The First, Third, Seventh, and Tenth Circuits have held that prisoners have no constitutional right to contact visitation. See Ramos v. Lamm, 639 F.2d 559, 580 n.26 (10th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Jordan v. Wolke, 615 F.2d 749, 753-54 (7th Cir. 1980); Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754, 758 (3d Cir. 1979); Feeley v. Sampson, 570 F.2d 364, 373 (1st Cir. 1978).
8
The district court should not have dismissed this allegation as frivolous. This circuit's majority opinion in Jones v. Diamond, which had been decided several months before the district court's section 1915(d) dismissal, required that a full hearing be held on a claim identical to Montana's for the purpose of determining whether contact visitation may be denied for legitimate security reasons. 636 F.2d at 1377.
9
III. Inadequate Recreational Facilities.
10
The complaint alleges that because the jail's recreational facilities are located outdoors they are inadequate for use during the winter and rainy seasons. The complaint also alleges that opportunities to use the facilities are not provided on a frequent basis. The district court's dismissal of this claim was error. See McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979), and cases cited therein (a claim of absence of outdoor exercise may make out an eighth amendment violation); accord Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). The Seventh Circuit has upheld a preliminary injunction that required, inter alia, that the prison provide a daily hour of yard recreation to prisoners. Preston v. Thompson, 589 F.2d 300, 301 (7th Cir. 1978).
11
IV. Censorship of Mail.
12
The complaint alleges, inter alia, that the defendant "prohibits closure of outgoing communications for censorship purposes." Dismissal of this claim was error because a pretrial detainee's first amendment rights may be violated when outgoing mail to licensed attorneys, courts, and court officials is censored. Guajardo v. Estelle, 580 F.2d at 758-59. The complaint also alleges censorship of incoming mail in the prisoner's presence. Dismissal of that portion of the claim may, after answer of defendants, be appropriate if the defendants allege that the censorship furthers security interests. Id. at 760-61.
13
V. Pornographic Publications.
14
The complaint alleges that pornographic publications are prohibited at the jail. Dismissal of this claim was premature. Under this circuit's law, enunciated in Guajardo v. Estelle, 580 F.2d at 762,
15
(b)efore delivery of a publication may be refused, prison administrators must review the particular issue of the publication in question and make a specific, factual determination that the publication is detrimental to prisoner rehabilitation because it would encourage deviate, criminal sexual behavior.
16
Censorship may not proceed according to the whims of the prison administrators. Id.
17
VI. Unreasonable Cell Searches.
18
The allegation in the complaint of random, frequent cell searches outside the prisoner's presence was properly dismissed as frivolous. The Supreme Court in Bell v. Wolfish, 441 U.S. at 555, 557, 99 S.Ct. at 1882, 1883, upheld such searches as constitutional.
19
VII. Arbitrary Punishments.
20
The complaint alleges that the whole cell block is punished when contraband is found in an individual cell or when an infraction is committed by an anonymous inmate. This claim should not have been dismissed because if the punishment of everyone for the violation of one is "arbitrary or purposeless" or "not reasonably related to a legitimate goal," it may be unconstitutional. Id. at 539.
21
VIII. Other Claims.
22
The claims relating to the usage of radio and television were properly dismissed as frivolous. These claims do not pertain to federal constitutional rights. See Lovern v. Cox, 374 F.Supp. 32, 34 (W.D.Va.1974). Dismissal of the claim regarding the professional hair stylist also was correct. We are unaware of any case that recognizes a detainee's constitutional right to a hair stylist.
23
Dismissal of plaintiff's claim number 11, relating to clean wearing apparel, however, was incorrect. See Campbell v. McGruder, 580 F.2d 521, 544 (D.C.Cir.1978) (district court heard testimony relating to whether pillow cases had been provided to inmates and concerning inmates' abilities to wash own underclothing).
24
Finally, plaintiff's original complaint alleged that prisoners were only allowed to use the telephone at the time of their arrest. Dismissal of this claim was error. District courts have guarded against unreasonable restrictions on telephone use. See Feeley v. Sampson, 570 F.2d at 374, and cases cited therein. It appears, however, that Montana desires to delete this claim from the complaint.
25
Accordingly, this was not a proper case for general summary dismissal by the district court. Montana is entitled to his "day in court." See Mitchum v. Purvis, 650 F.2d 647 at 648 (5th Cir. 1981); Woodall v. Foti, 648 F.2d 268, 272-73 (5th Cir. 1981); Phillips v. Purdy, 617 F.2d 139, 141 (5th Cir. 1980). As the Supreme Court recognized recently in Rhodes v. Chapman, --- U.S. ----, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), courts have a responsibility to scrutinize claims of cruel and unusual punishment.
26
The plaintiff properly filed in the district court an affidavit declaring his inability to pay. His timely motion for leave to proceed on appeal IFP should have been granted pursuant to Rule 24(a), Fed.R.App.P. Although we do not express any view concerning the merits of the plaintiff's allegations we grant IFP status, docket the appeal, vacate the district court's summary dismissal of plaintiff's claims numbered 2, 3, 4, 5, 7, and 11, affirm that of the others, and remand the case for further proceedings consistent with this opinion. Because the plaintiff's allegations satisfy the standard stated in Conley v. Gibson, supra, the plaintiff is entitled to an appropriate evidentiary hearing. Compare Lewis v. Bragan, 576 F.2d 678 (5th Cir. 1978).
27
AFFIRMED in part, VACATED in part and REMANDED.
|
FILED
AUG 5 2019
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. CC-18-1233-LKuF
SHARON MARY ADAMS, Bk. No. 8:13-bk-20139-CB
Debtor. Adv. No. 8:14-ap-01049-CB
GARY ZIEBARTH; PAMELA ZIEBARTH,
Appellants,
v. MEMORANDUM*
SHARON MARY ADAMS; DAVID
BRENT ADAMS,
Appellees.
Argued and Submitted on June 20, 2019
at Pasadena, California
Filed – August 5, 2019
Appeal from the United States Bankruptcy Court
for the Central District of California
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Honorable Catherine E. Bauer, Bankruptcy Judge, Presiding
Appearances: David Bruce Dimitruk argued for Appellants; William J.
Wall argued for Appellee Sharon Adams; Fritz J. Firman
argued for Appellee David Brent Adams.
Before: LAFFERTY, KURTZ, and FARIS, Bankruptcy Judges.
INTRODUCTION
Appellants Gary and Pamela Ziebarth appeal the bankruptcy court’s
judgment in favor of Appellees on the Ziebarths’ claims under
§§ 523(a)(2)(A), (a)(4), and 727(a)(4)(A)1 and their objection to Appellee
Sharon Adams’ exemptions in her retirement accounts. The bankruptcy
court found that the Ziebarths did not establish at trial that Sharon
intended to defraud the Ziebarths or that misstatements in her schedules
were made with fraudulent intent.
The bankruptcy court also dismissed certain causes of action against
Sharon and her nondebtor husband, Appellee David Brent Adams
(“Brent”), for failure to state a claim.
We AFFIRM in part, VACATE in part, and REMAND.
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules
of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of
Civil Procedure.
2
FACTUAL BACKGROUND
Debtor Sharon Adams is married to Brent Adams. Brent is Pamela
Ziebarth’s nephew; Pamela is married to Gary Ziebarth. Brent owned
rental property on Bernard Street in Costa Mesa, California (the “Bernard
Property”).2 In 2007, Brent sought a loan to fund improvements on the
Bernard Property. Bank of America was willing to make the loan, but only
if Sharon and the Ziebarths co-signed the loan. The Ziebarths agreed to co-
sign, and in August 2007 the parties entered into a non-revolving line of
credit agreement with Bank of America for $600,000. A condition of the
loan was the borrowers’ agreement to “use the proceeds of [the line of
credit] only for financing the construction of a new single family residence
plus garage in Costa Mesa, California.” The loan and all outstanding
interest were due October 31, 2008.
Apparently due to a delay in obtaining a building permit to construct
the new dwelling and garage, the construction could not be completed
before the due date of the line of credit. No building permit was ever
obtained, and no new residence was constructed on the Bernard Property.
Nevertheless, between August 2007 and May 2008, Brent withdrew
the entire $600,000 from the line of credit and placed it into his account at
2
According to the parties’ joint pretrial conference stipulation, Brent initially took
title to the Bernard Property as his sole and separate property, but at various times
Sharon’s name was put on title to enable Brent to obtain refinancing and then removed.
3
Bank of America, then transferred it to his account at First Republic Bank.
The record is unclear as to what the funds were spent on, but the parties
stipulated that they were not spent on new construction at the Bernard
Property.
In October 2008, the Ziebarths paid off the line of credit. Shortly
thereafter, they sued the Adamses and others for breach of contract, money
had and received, money lent, contribution, intentional misrepresentation,
and breach of fiduciary duty.
On December 20, 2013, with a trial pending in the state court
litigation, Sharon filed an emergency chapter 7 petition. She filed her
schedules shortly thereafter. On Schedule A, she listed the Bernard
Property with the notation “*Spouse’s Separate Property.” On Schedule D,
she listed a first deed of trust against the Bernard Property in favor of
Ocwen for $597,373, and a second lien in favor of “Chase” for $228,000,
again with the notation, “*Spouse’s Separate Property.”3 On Schedules I
and J, Sharon included Brent’s monthly gross business income and the
expenses associated with the Bernard Property, including a mortgage
payment of $3,260.70. She also listed annual rental income of $45,000 per
year for the years 2011-2013 on her Statement of Financial Affairs. On
Schedule B, she listed 50 percent interests in Image Driven, Inc., and
3
She also listed two judgment liens against the Bernard Property with the same
notation.
4
Corporate Lending, LLC, each valued at zero. She also listed two
retirement accounts, a 401k worth $47,274.15 and an IRA worth $182,843,
for a total of $212,843. On Schedule C, she claimed those accounts fully
exempt under California Civil Procedure Code § 703.140(b)(10)(E).
The Ziebarths filed an adversary complaint naming both Sharon and
Brent as defendants and asserting three claims for relief. In their first claim,
the Ziebarths sought to except the amount owed to them from discharge
under §§ 523(a)(2)(A) and (a)(4) as to both Sharon and Brent; in their
second claim, they sought denial of discharge under § 727 as to Sharon;
and, alternatively, their third claim sought disallowance of Sharon’s
claimed exemptions in her retirement accounts. In their prayer for relief,
the Ziebarths sought a declaration that Brent was obligated to them for
their damages, and if Brent filed a chapter 7 petition, the debt would not be
dischargeable in his case. Shortly thereafter, the parties stipulated to relief
from the automatic stay to complete the state court litigation.4
In the meantime, Sharon and Brent moved under Civil Rule 12(b)(6)
(applicable via Rule 7012) to dismiss both § 523 claims against Brent and
the § 523(a)(4) claim and the objection to exemption claim against Sharon.
They argued that the court lacked jurisdiction over the claims against
4
Although the bankruptcy court orally granted stay relief, no written order was
ever entered. The bankruptcy court docket reflects that Sharon filed an objection to the
form of order submitted by the Ziebarths, which was apparently never resolved.
5
Brent. As for Sharon, they argued that the complaint did not allege facts
establishing a fiduciary relationship between Sharon and the Ziebarths and
that the allegations with respect to the exemption were “based upon mere
possibility, suspicion, and speculation.” The Ziebarths filed an opposition,
and, after a hearing, the bankruptcy court dismissed the complaint in its
entirety as to Brent, without leave to amend. The court also granted the
motion as to the § 523(a)(4) claim and the objection to exemptions against
Sharon, but with leave to amend.5
In the meantime, the parties unsuccessfully attempted mediation.
Thereafter, in September 2014, the Ziebarths amended their complaint. The
first amended complaint (“FAC”) omitted the prayer for relief against
Brent and re-alleged nondischargeability under §§ 523(a)(2)(A), and (a)(4)
and objection to discharge under § 727 based on false oaths. The FAC also
re-alleged the objection to Sharon’s exemptions in her retirement accounts.
The FAC also added a claim under § 523(a)(2)(B).
Sharon filed another Civil Rule 12(b)(6) motion. The motion was
based on the Ziebarths’ failure to adequately allege a fiduciary relationship
or that Sharon intentionally made oral or written misrepresentations.
Sharon also sought dismissal of the § 727 claim as untimely, and she sought
5
The order on the motion to dismiss is confusing because it states “[t]he Motion is
granted WITH leave to amend as to the claims under 11 USC § 727 regarding the
retirement accounts against defendant Sharon Mary Adams.” But the complaint did not
allege a § 727 claim based on the retirement accounts.
6
dismissal of the objection to exemptions on grounds that she would need
the retirement accounts when she retired. The bankruptcy court granted
the motion to dismiss without leave to amend as to the §§ 523(a)(2)(B) and
(a)(4) claims. The court denied the motion as to the claims under
§§ 523(a)(2)(A) and 727(a)(4). In its oral ruling, the court stated that the
objection to exemptions was “too late” but did not elaborate on that
comment. The court’s written order stated in part, “[t]he Motion is granted
as to the claims under 11 U.S.C. 727 regarding the retirement accounts
WITHOUT leave to amend.”6 The Ziebarths appealed the court’s order to
this Panel (BAP No. CC-15-1017), which dismissed the appeal in April 2015
as interlocutory.
In May 2015, the state court entered judgment after trial in favor of
the Ziebarths in the amount of $600,000 on their breach of contract claim
and their breach of fiduciary duty claim against Brent only. The state court
did not find an intent to defraud.7
6
Again, it is not clear why the order contained a reference to § 727 with respect to
the objection to exemptions. The FAC invoked Rule 4003 and did not allege that the
exemptions were a ground for denial of discharge but simply requested that the
exemptions be disallowed.
7
The state court judgment and findings were not included in the excerpts of
(continued...)
7
Sharon then moved for summary judgment seeking dismissal of the
§§ 523(a)(2)(A) and 727(a)(4) claims, the former on the ground of issue
preclusion and the latter on the ground that there was no triable issue of
material fact. The bankruptcy court denied the motion.
The parties then stipulated to permit the Ziebarths to amend their
complaint for the second time. The amendment was sought primarily due
to the Ziebarths’ alleged discovery of a prepetition conspiracy between
Brent and Sharon that consisted of forming an entity, Chase One LLC
(“Chase One”) and then fraudulently recording a deed of trust in favor of
Chase One to encumber the Bernard Property. The Ziebarths alleged that
the purpose of the scheme was to conceal both the equity and Sharon’s
alleged interest in the Bernard Property.
In sum, the second amended complaint (“SAC”) filed in September
2016 alleged claims for a declaration of nondischargeability under three
separate theories: (1) fraud (§ 523(a)(2)(A)); (2) breach of fiduciary duty
(§ 523(a)(4)); and (3) embezzlement (§ 523(a)(4)). The SAC also included a
claim objecting to discharge under § 727 based in part on Sharon’s alleged
false statements on her bankruptcy schedules regarding the Chase One
7
(...continued)
record. They were filed with the bankruptcy court. We have thus exercised our
discretion to review the bankruptcy court’s electronic docket and pleadings. See
O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957–58 (9th Cir. 1989);
Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP
2003).
8
deed of trust. Finally, notwithstanding the court’s previous dismissal of the
Ziebarths’ objection to Sharon’s exemptions in her retirement accounts, the
SAC included that claim for relief “for the purpose of preserving the claim
in the event of a subsequent appeal.”
Trial took place on June 12 and 13, 2017, and December 18, 2017.
Witnesses Gary and Pamela Ziebarth, Sharon Adams, and her bankruptcy
counsel William Cumming submitted their direct testimony by declaration.
Each of those witnesses was examined at trial, along with Sharon’s friend,
Janet DeMarco, and Brent Adams.
Sharon testified that she had included on her schedules the Bernard
Property and its associated income and expenses on the advice of her
counsel, Mr. Cumming. She also explained that the information regarding
the Bernard Property had been supplied to her by Brent, including the
information with respect to the Chase One deed of trust. In addition, she
stated that much of the financial information was gleaned from credit
reports. She testified that she believed the Chase One deed of trust was
valid. She also testified that, until the litigation commenced, she was not
aware that a previous second deed of trust in favor of JP Morgan Chase
Bank encumbering the Bernard Property had been canceled and
reconveyed in February 2013 pursuant to the National Mortgage
Settlement. Thus, she believed that the Chase One deed of trust was that
obligation. She testified she had no prior knowledge of the circumstances
9
surrounding the formation of Chase One or the recording of the deed of
trust.
With respect to her interests in Brent’s businesses listed on
Schedule B, Sharon testified that although the schedules showed she had a
50 percent interest, in reality she had no interest in either business. She did
not know why the 50 percent interest was listed.
Regarding the Bank of America loan, Sharon testified that she was
not involved in arranging the loan with Bank of America and in fact was
unaware of the loan until Brent asked her to sign the loan agreement.
Further, she testified that, although she knew Brent wanted to make
improvements on the Bernard Property, she did not notice the language in
the loan agreement restricting the use of the funds to the building of a
single family home and garage. Sharon further testified that at the time the
documents were signed, she believed that the improvements to the Bernard
Property would generate equity sufficient to refinance the loan before the
due date.
Mr. Cumming corroborated Sharon’s testimony regarding the
schedules, explaining that he had advised her to include all of Brent’s
assets and income on her schedules out of an abundance of caution and in
the interest of full disclosure. He confirmed that Brent had supplied the
information on his finances, including the information regarding the Chase
One deed of trust as well as a copy of that document. He also testified that
10
although there were no monthly payments due on that obligation (it called
for a balloon payment due December 31, 2020), he included a payment on
the means test by dividing the total amount that would be owed by the
number of months in the loan term. Mr. Cumming further testified that he
did not initially realize that the creditor was not affiliated with any
JP Morgan Chase entity until the Ziebarths filed their opposition to
Sharon’s motion for summary judgment. He also had not noticed that the
recording date on the Chase One deed of trust was the same as the petition
date.
Brent corroborated Sharon’s testimony that the couple kept their
finances separate. He testified that he had caused Chase One to be formed
in December 2013–but he does not own it–and that he received the deed of
trust on December 20, 2013, signed it, and had it notarized and recorded.
He also testified he never received any money from Chase One.8 But he did
not recall ever discussing the formation of Chase One or the deed of trust
with Sharon. Sharon was recalled to the stand, at which time she testified
that she knew nothing about Brent’s actions with respect to the Chase One
deed of trust and was not aware that he had recorded it hours before her
8
During Brent’s testimony, the court stated: “The totality of the circumstances
make it really obvious what was done here. You used an asset protection vehicle to
drain off the equity. Well, in part because of the–the litigation but also because your
wife was about to file bankruptcy.” Trial Tr. (Jun. 13, 2017) at 181:5-9. Brent replied that
he did not believe that to be true.
11
case was filed. Her testimony was that she instructed Mr. Cumming to file
the petition on December 20 to avoid going through with the state court
trial that was scheduled for December 23.
In the Ziebarths’ trial declarations, they each testified that either
Sharon or Brent (their accounts differed) had approached them about
helping to obtain financing to build another residence and garage on the
Bernard Property and that they ultimately agreed to co-sign the loan
agreement with Bank of America based on that representation and their
close family relationship with the Adamses. They asserted that, had they
known the funds would be used for other purposes, they would not have
signed the loan agreement. Their live testimony essentially corroborated
what was in their declarations, with Gary conceding that the only
representation Sharon made was “touting Brent’s ability to do the job,” and
that he believed she was sincere. Trial Tr. (Dec. 18, 2017) at 123:1-7.
After trial, the bankruptcy court took the matter under submission
and entered its Statement of Decision After Trial and a judgment in favor of
Sharon on all claims. With the exception of Brent, the court found all of the
witnesses to be credible, but the testimony and evidence presented at trial
did not establish the facts necessary for the Ziebarths to prevail on their
claims. Specifically, the court found: (1) the evidence did not establish that
Sharon knowingly made material false representations to the Ziebarths
12
with the intent to deceive;9 (2) the Ziebarths had presented no evidence of
an express trust or that their claim arose from fraud or defalcation by
Sharon; (3) the testimony of Sharon and her former counsel at trial was
sufficient to explain the misstatements in Sharon’s schedules; and (4) no
evidence or argument was presented at trial to support the Ziebarths’
objection to Sharon’s exemptions. Accordingly, the Ziebarths were not
entitled to judgment on their claims under §§ 523(a)(2)(A), (a)(4), 727(a)(4),
and their objection to exemptions.
The Ziebarths filed a motion under Civil Rule 59 (applicable via Rule
9023) for a new trial or amended findings. After a hearing, the bankruptcy
court denied the motion. The Ziebarths timely appealed.
JURISDICTION
Subject to the discussion below, the bankruptcy court had jurisdiction
under 28 U.S.C. §§ 1334 and 157(b)(2)(B), (I) and (J). We have jurisdiction
under 28 U.S.C. § 158.
ISSUES
Did the bankruptcy court err in dismissing Brent Adams from the
adversary proceeding?
Did the bankruptcy court err in dismissing the claim under
9
Although the bankruptcy court did not highlight this in its decision, at trial it
pointed out that the representation in the loan agreement regarding the use of the line
of credit proceeds was made to Bank of America, not the Ziebarths. Trial Tr. (Dec. 18,
2017) at 28:5-6.
13
§ 523(a)(4) for fraud or defalcation while acting in a fiduciary capacity?
Did the bankruptcy court err in dismissing the objection to exemption
claim?
Did the bankruptcy court err in entering judgment for Sharon on the
Ziebarths’ § 523(a)(2)(A) claim?
Did the bankruptcy court err in entering judgment for Sharon on the
Ziebarths’ § 523(a)(4) claim for embezzlement?
Did the bankruptcy court err in entering judgment for Sharon on the
Ziebarths’ § 727(a)(4) claim?
STANDARDS OF REVIEW
We review de novo the bankruptcy court’s decision to grant a motion
to dismiss under Civil Rule 12(b)(6). Barnes v. Belice (In re Belice), 461 B.R.
564, 572 (9th Cir. BAP 2011). “De novo review requires that we consider a
matter anew, as if no decision had been made previously.” Francis v.
Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014) (citations
omitted).
When reviewing a bankruptcy court’s determination of an exception
to discharge claim under § 523, we review its findings of fact for clear error
and its conclusions of law de novo. See Oney v. Weinberg (In re Weinberg),
410 B.R. 19, 28 (9th Cir. BAP 2009). “Whether a requisite element of a
§ 523(a)(2)(A) claim is present is a factual determination reviewed for clear
error.” Tallant v. Kaufman (In re Tallant), 218 B.R. 58, 63 (9th Cir. BAP 1998)
14
(citing Anastas v. Am. Sav. Bank (In re Anastas), 94 F.3d 1280, 1283 (9th Cir.
1996)).
Factual findings are clearly erroneous if they are illogical,
implausible, or without support in the record. Retz v. Samson (In re Retz),
606 F.3d 1189, 1196 (9th Cir. 2010). If two views of the evidence are
possible, the court’s choice between them cannot be clearly erroneous.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-75 (1985).
“When factual findings are based on determinations regarding the
credibility of witnesses, we give great deference to the bankruptcy court's
findings, because the bankruptcy court, as the trier of fact, had the
opportunity to note ‘variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding of and belief in what is said.’” In re
Retz, 606 F.3d at 1196 (quoting Anderson, 470 U.S. at 575).
We may affirm on any basis supported by the record. Caviata Attached
Homes, LLC v. U.S. Bank, Nat’l Ass’n (In re Caviata Attached Homes, LLC), 481
B.R. 34, 44 (9th Cir. BAP 2012) (citation omitted).
DISCUSSION
A. The bankruptcy court’s Civil Rule 12(b)(6) rulings.
In reviewing the bankruptcy court’s decision on a motion to dismiss,
we apply the same standards to Civil Rule 12(b)(6) dismissal motions that
all other federal courts are required to apply. In re Belice, 461 B.R. at 572–73.
Under Civil Rule 12(b)(6), made applicable in adversary proceedings by
15
Rule 7012, the trial court may dismiss a complaint for “failure to state a
claim upon which relief can be granted.” To survive a Civil Rule 12(b)(6)
dismissal motion, a complaint must present cognizable legal theories and
sufficient factual allegations to support those theories. See Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008). As the
Supreme Court has explained:
a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face. . . . A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. . . .
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and internal quotation
marks omitted). In reviewing the sufficiency of a complaint under Civil
Rule 12(b)(6), we must accept as true all facts alleged in the complaint and
draw all reasonable inferences in favor of the plaintiff. See Newcal Indus.,
Inc. v. Ikon Office Sols., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). However, we
do not need to accept as true conclusory allegations or legal
characterizations cast in the form of factual allegations. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007).
1. The bankruptcy court did not err in dismissing the claims
against Brent Adams for lack of jurisdiction.
The initial complaint included claims against Brent under § 523(a)(2)
16
and (a)(4), a declaration that any debt owed to the Ziebarths by Brent
would not be dischargeable in any subsequent bankruptcy case, and a
prayer for the court to enter an order and judgment determining that
“David Brent Adams is obligated to the Ziebarths for the damages that
they have sustained.”
The bankruptcy court dismissed the complaint as to Brent because he
was not a debtor and thus the court had no jurisdiction over the § 523
claims with respect to Brent. We see no error in this disposition.
The Ziebarths argue that the complaint alleged a “common nucleus
of operative facts” sufficient to support “related to” or supplemental
jurisdiction. Rejection of this argument does not require extensive analysis.
“Article III of the Constitution limits federal-court jurisdiction to ‘cases’
and ‘controversies.’” Campbell–Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)
(citing U.S. Const., art. III, § 2). Thus, federal courts lack the “power to
decide questions that cannot affect the rights of litigants in the case before
them.” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (citation
omitted).
Simply put, the court had no jurisdiction under any theory over the
claims against Brent arising under the Bankruptcy Code given his status as
a nondebtor who was not entitled to a discharge in Sharon’s case.
Moreover, the bankruptcy court was not at liberty to issue an advisory
ruling as to nondischargeability in any future case. See Elias v. Lisowski Law
17
Firm, Chtd. (In re Elias), 215 B.R. 600, 604 (9th Cir. BAP 1997), aff’d, 188 F.3d
1160 (9th Cir. 1999). To the extent the Ziebarths sought to have the
bankruptcy court liquidate their damages, they accomplished that in the
state court litigation. There was no case or controversy.
2. The bankruptcy court did not err in dismissing the § 523(a)(4)
claim against Sharon for fraud or defalcation while acting in a
fiduciary capacity.
The bankruptcy court dismissed the § 523(a)(4) claim contained in the
FAC without leave to amend because the facts alleged did not support the
existence of a fiduciary relationship within the meaning of that Code
section. We find no error in that ruling.
The Ziebarths argue that their allegations of a close family
relationship and their reliance on the Adamses’ representations and the
loan agreement’s requirement as to the use of the funds sufficiently
supported the allegation of a fiduciary relationship. But those arguments
appear to be based on the assumption that a fiduciary relationship under
§ 523(a)(4) is the same as that under state law. It is not. As the Ninth Circuit
Court of Appeals has explained:
We have adopted a narrow definition of “fiduciary” for
purposes of § 523(a)(4). Under such definition, the broad,
general definition of fiduciary—a relationship involving
confidence, trust and good faith—is inapplicable. As the
pre-eminent bankruptcy treatise explains, “[f]or purposes of
section 523(a)(4), the definition of ‘fiduciary’ is narrowly
construed, meaning that the applicable nonbankruptcy law that
18
creates a fiduciary relationship must clearly outline the
fiduciary duties and identify the trust property.” 4 Collier on
Bankruptcy, ¶ 523.10 (Alan N. Resnick & Henry J. Sommer eds.,
16th ed.).
While we may consult state law . . . when interpreting
whether an individual is a “fiduciary” under Section 523(a)(4),
we ultimately are interpreting a federal statute, and the issue
presented is one of federal law. Thus, the mere fact that state
law places two parties in a relationship that may have some of
the characteristics of a fiduciary relationship does not
necessarily mean that the relationship is a fiduciary
relationship under 11 U.S.C. § 523(a)(4). Indeed, if applicable
nonbankruptcy law does not clearly and expressly impose
trust-like obligations on a party, courts will not assume that
such duties exist and will not find that there was a fiduciary
relationship.
Further, the fiduciary relationship must be one arising
from an express or technical trust that was imposed before and
without reference to the wrongdoing that caused the debt.
Thus, Section 523(a)(4) applies only to a debt created by a
person who was already a fiduciary when the debt was created.
Double Bogey, L.P. v. Enea, 794 F.3d 1047, 1050–51 (9th Cir. 2015) (additional
citations, alterations, and internal quotations omitted).
In addition to several California cases, which are inapplicable, the
Ziebarths cite Day Care-Sam Furr, LLC v. Ross (In re Ross), 478 B.R. 715
(Bankr. W.D.N.C. 2012), for their argument that they sufficiently pleaded a
fiduciary relationship. That case does not help the Ziebarths. Besides the
19
fact that it is not a Ninth Circuit case, the court in Day Care-Sam Furr did
not explicitly analyze whether a fiduciary relationship existed sufficient to
support a § 523(a)(4) claim. Nor did it need to, as it concluded that the
defendant had stolen money from the plaintiffs. Thus, it appears the court
based its ruling on embezzlement or larceny.
The bankruptcy court did not err in dismissing the § 523(a)(4) claim
for fraud or defalcation while acting in a fiduciary capacity.
3. The bankruptcy court erred in dismissing the Ziebarths’
objection to exemption claims.
In their original complaint, the Ziebarths alleged that the
approximately $200,000 in Sharon’s retirement accounts was “not
reasonably necessary for the support of the debtor and any dependent of
the debtor because the debtor’s employment and earnings and other
sources of income are sufficient to pay for the support of debtor and her
dependents.” At the hearing on Sharon’s first Civil Rule 12(b)(6) motion,
the court stated with respect to the objection to exemptions:
given what the numbers are, that is not an obnoxious amount
to have in a retirement account for an individual, by any
means. I mean, you know, if it were in the multi-millions, yeah,
but we’re not talking a lot of–I mean, making more than some
people, but it’s sure not enough to retire on. So, just, on a
normal, human level, I’m not seeing anything beyond what
people would need to retire on. In fact, I’m seeing not enough
to retire on . . . .
Hr’g Tr. (Jul. 29, 2014) at 20:15-23. The court then granted the motion to
20
dismiss that claim, but with leave to amend.
The FAC added the allegation that, based on Sharon’s income and
age, she would have sufficient earnings over time to replenish the amounts
she claimed as exempt. Additionally, the FAC alleged that Sharon was not
obligated for all of the expenses claimed on her Schedule J. At the hearing
on Sharon’s second Civil Rule 12(b)(6) motion, the bankruptcy court stated
that it would grant the motion to dismiss the objection to exemption claim
because it was “too late.” The bankruptcy court’s order dismissed that
claim without leave to amend.
The Ziebarths point out that this claim was included in their original
complaint filed February 27, 2014, which was less than 30 days after the
§ 341 meeting of creditors, and was thus timely under Rule 4003(b)(1). We
note, however, that the record does not reflect that the Ziebarths served the
objection on the chapter 7 trustee as required under Rule 4003(b)(4).
Sharon claimed exemptions in the retirement accounts under
California Civil Procedure Code § 703.140(b)(10)(E), which permits a debtor
to exempt her right to receive “[a] payment under a stock bonus, pension,
profit-sharing, annuity, or similar plan or contract on account of illness,
disability, death, age, or length of service, to the extent reasonably
necessary for the support of the debtor and any dependent of the debtor
. . . .” Once the debtor claims an exemption on her bankruptcy schedules,
“the objecting party has the burden of proving that the exemptions are not
21
properly claimed.” Rule 4003(c).
In determining whether the amounts held in the accounts
are necessary for debtor’s and her dependent’s support, the
court is to consider the debtor’s present and anticipated living
expenses and income; the age and health of the debtor and his
or her dependents; the debtor’s ability to work and earn a
living; the debtor’s training, job skills and education; the
debtor’s other assets and their liquidity; the debtor’s ability to
save for retirement; and any special needs of the debtor and his
or her dependents.
Gonzalez v. Davis (In re Davis), 323 B.R. 732, 735 (9th Cir. BAP 2005)
(citations omitted) (analyzing exemption under California Code of Civil
Procedure § 704.115(b), which contains similar language).
Sharon argues that the Ziebarths waived this claim by failing to
introduce any evidence at trial, and the bankruptcy court entered judgment
on the claim for the same reason. But the bankruptcy court had dismissed
this claim without leave to amend; the Ziebarths attempted to appeal the
order, but the appeal was dismissed as interlocutory. There was no waiver.
And the bankruptcy court never made any findings on the sufficiency
of the allegations supporting this claim. The court was correct that in
general the trustee brings such an objection, and she did not do so in this
case. But Rule 4003 does not limit standing to object to the trustee, as it
provides that an objection to exemption may be brought by a “party in
interest.” It also appears that the objection was timely filed, even though it
22
was apparently not served on the trustee.10 The FAC included specific
factual allegations, including dollar amounts, as to Sharon’s income based
on her filed schedules and thus may well have been sufficient to support
the claim at the pleading stage. But the bankruptcy court should have
made this determination in the first instance. Accordingly, we must
VACATE both the order and portion of the judgment dismissing this claim
and REMAND for the bankruptcy court to enter findings as to the
sufficiency of the complaint with respect to this claim.
B. The bankruptcy court did not err in entering judgment for Sharon
on the Ziebarths’ § 727(a)(4)(A) claim.
Section 727(a)(4)(A) provides: “The court shall grant the debtor a
discharge, unless . . . the debtor knowingly and fraudulently, in or in
connection with the case[,] made a false oath or account.” A false statement
or an omission in the debtor’s bankruptcy schedules or statement of
financial affairs can constitute a false oath. In re Retz, 606 F.3d at 1196. To
prevail on this claim, the plaintiff must show, by a preponderance of the
evidence, that: “(1) the debtor made a false oath in connection with the
case; (2) the oath related to a material fact; (3) the oath was made
knowingly; and (4) the oath was made fraudulently.” Id. at 1197.
“In keeping with the ‘fresh start’ purposes behind the Bankruptcy
10
We express no opinion on the impact, if any, of the failure to serve the trustee
or the fact that the objection to exemption was not filed in the main case.
23
Code, courts should construe § 727 liberally in favor of debtors and strictly
against parties objecting to discharge.” Bernard v. Sheaffer (In re Bernard), 96
F.3d 1279, 1281 (9th Cir. 1996). This does not alter the burden on the
objector, but rather means that “actual, rather than constructive, intent is
required” on the part of the debtor. Khalil v. Developers Sur. & Indem. Co. (In
re Khalil), 379 B.R. 163, 172 (9th Cir. BAP 2007), aff’d, 578 F.3d 1167 (9th Cir.
2009).
The bankruptcy court found that the Ziebarths were not entitled to
judgment on this claim because, although there were inaccuracies in
Sharon’s schedules,
both Defendant and her bankruptcy counsel were credible in
their explanations as to why the petition and schedules were
filled out the way they were. Defendant was also credible when
she said she relied on her Bankruptcy Counsel for legal advice
prior to and during her bankruptcy. And, both Defendant and
her Bankruptcy Counsel were credible when they testified that
they thought the Chase One LLC lien was legitimate.
Again, the evidence pointed to Brent as the culpable
individual, not Defendant.
The Ziebarths again complain about the bankruptcy court’s lack of
findings, contending there were 62 false oaths in the schedules. They argue
that Sharon did not meet her burden to document the questioned
transactions, citing Aubrey v. Thomas (In re Aubrey), 111 B.R. 268 (9th Cir.
BAP 1990) (holding that when a creditor makes out a prima facie case, the
24
debtor who fails to respond with credible evidence cannot prevail in a § 727
case). They also argue that, despite being presented with the inaccuracies in
her schedules, she “refused” to amend them. But there was no evidence in
the record to support this argument. We note that the trustee filed a Report
of No Distribution in February of 2014, and the Ziebarths have not argued
that any of the amendments Sharon could have made would have resulted
in the case being an asset case, i.e., that they were material. Sharon admits
that there were inaccuracies in her schedules, but points out that the
Ziebarths provided no evidence that they were prejudiced by the
inaccuracies, i.e., that they were material. See In re Retz, 606 F.3d at 1198
(“An omission or misstatement that detrimentally affects administration of
the estate is material.” (Citation omitted)).
Importantly, the Ziebarths have pointed to no evidence that the
inaccurate statements were made knowingly or fraudulently. They instead
attack Sharon’s testimony as “another defiantly deceptive attempt to justify
the false oaths.” But the bankruptcy court found both Sharon’s and her
counsel’s testimony credible, and we will defer to that finding.
C. The bankruptcy court did not err in entering judgment for Sharon
on the Ziebarths’ § 523(a)(2)(A) claim.
Section 523(a)(2)(A) excepts from discharge debts incurred by “false
pretenses, a false representation, or actual fraud . . . .” § 523(a)(2)(A). To
prevail under § 523(a)(2)(A), a creditor must demonstrate five elements:
25
“(1) misrepresentation, fraudulent omission or deceptive conduct by the
debtor; (2) knowledge of the falsity or deceptiveness of his statement or
conduct; (3) an intent to deceive; (4) justifiable reliance by the creditor on
the debtor’s statement or conduct; and (5) damage to the creditor
proximately caused by its reliance on the debtor’s statement or conduct.”
Deitz v. Ford (In re Deitz), 760 F.3d 1038, 1050 (9th Cir. 2014) (citations
omitted). The creditor has the burden to establish these elements by a
preponderance of the evidence. Id. Exceptions to discharge are construed
strictly against the creditor and liberally in favor of the debtor. Snoke v. Riso
(In re Riso), 978 F.2d 1151, 1154 (9th Cir. 1992).
The bankruptcy court found that the Ziebarths did not prove that
Sharon knowingly made material false representations to them with the
intention and purpose of deceiving them. This finding is not clearly
erroneous. At trial, both Sharon and Brent testified that the couple maintain
separate finances and that Sharon was not involved with managing the
Bernard Property. Sharon also testified that she was not involved in
arranging the loan with Bank of America and in fact was unaware of the
loan until Brent asked her to sign the loan agreement. Further, she testified
that she did not notice the language in the loan agreement restricting the
use of the funds to the building of a single family home and garage.
Additionally, the testimony supports the bankruptcy court’s finding
that
26
Plaintiffs tried to show that Defendant knew her husband
was incapable of developing the Property, that she knew the
proceeds of the Loan were going to be misappropriated, and
that she purposefully misrepresented that the proceeds of the
Loan would only be used in a certain manner.
However, the Defendant credibly testified to the contrary
at trial. Indeed, Gary Ziebarth’s statement that “she still
believes in him” conflicts with this cause of action, as it
demonstrates Defendant did not know it was a false
representation and, more importantly, that she did not intend
to deceive Plaintiffs.”
(Emphasis in original).
Sharon testified as follows:
Q. So you believed that he could increase the value of this
property as of the date you signed the loan agreement?
A. I believe he thought he could.
Q. I'm asking you what you thought, not what he thought.
A. I had faith that he would do what he believed he could
do.
Q. And did that include making improvements to the two
existing structures?
A. I always thought he was doing the whole project, yes.
Trial Tr. (Dec. 18, 2017) at 47:20-48:3.
And Gary Ziebarth testified that he had only one contact with Sharon
prior to the loan being made in which she touted Brent’s ability to develop
the Bernard Property. When asked whether he believed that Sharon
believed that Brent could do it, he responded, “Yes. She still believes in him
27
today.” Id. at 125:11-13.
To summarize, the trial testimony established that the only
representation Sharon made to the Ziebarths regarding the loan was her
belief that Brent could successfully develop the Bernard Property. The
Ziebarths presented no evidence that Sharon knew Brent intended to use
the loan proceeds for purposes other than those identified in the loan
documents or that she had any intent to deceive.
Nevertheless, on appeal, the Ziebarths contend that the bankruptcy
court misapplied the law because it did not consider “several aspects to
Sharon’s involvement in the deceptive plan.” The Ziebarths point this
Panel to Sachan v. Huh (In re Huh), 506 B.R. 257 (9th Cir. BAP 2014) (en
banc), in which the Panel considered the question of when it is appropriate
to impute vicarious liability in an exception to discharge action based on
fraud. The Panel held that “while the principal/debtor need not have
participated actively in the fraud for the creditor to obtain an exception to
discharge, the creditor must show that the debtor knew, or should have
known, of the agent’s fraud.” Id. at 271–72. The Ziebarths contend that the
bankruptcy court did not analyze the evidence under this standard or take
into account the evidence of Sharon’s participation in the management of
the Bernard Property, her enjoyment of the proceeds from its operation, her
knowledge of Brent’s intentions for how the loan proceeds would be used,
and her intent in helping Brent deceive the Ziebarths by signing the loan
28
agreement. But, as noted, Sharon testified (credibly, as found by the court)
that she did not participate in the management of the Bernard Property nor
did she realize that the loan proceeds were required to be used only for
new construction and not for improvements to the existing structures.
Thus, even if the bankruptcy court had applied the Huh standard, the
evidence did not support a finding of vicarious liability.
Next, the Ziebarths argue that the bankruptcy court erred in basing
its decision solely on the finding that Sharon made no false material
misrepresentations to the Ziebarths and in not considering Sharon’s
“deceptive conduct.” They contend that Sharon’s signing of the loan
agreement constituted a misrepresentation and that Sharon engaged in
fraudulent conduct because she knew of Brent’s “deceptive plan” to use the
funds on the existing buildings on the Bernard Property, yet failed to
inform the Ziebarths. They cite Husky International Electronics, Inc. v. Ritz,
136 S. Ct. 1581, 1586 (2016), in which the Supreme Court held that “[t]he
term ‘actual fraud’ in § 523(a)(2)(A) encompasses forms of fraud, like
fraudulent conveyance schemes, that can be effected without a false
representation.” Again, however, Sharon’s testimony belies any argument
that she knowingly participated in a fraudulent scheme, wholly apart from
the question of whether she made any false representations.
The Ziebarths then argue that the bankruptcy court “fused” the
knowledge and intent elements. This argument is difficult to follow, but it
29
appears that they believe the bankruptcy court’s findings were not broken
down into the specific elements. As set forth above, the court found that
Sharon’s testimony did not support the Ziebarths’ assertion that she knew
the proceeds of the loan were going to be misappropriated or that she
purposefully misrepresented how the proceeds of the loan would be used.
This finding refers to both knowledge and intent. And failure to establish
either knowledge of falsity or intent to deceive defeats the § 523(a)(2)(A)
claim.
Nevertheless, the Ziebarths argue that the bankruptcy court ignored
evidence that Sharon knew Brent planned to expend the loan proceeds on
the existing buildings before she signed the loan agreement, pointing to
specific “admissions” in her testimony. For example, Sharon testified,
“Brent always talked about Bernard, it was always the ‘Bernard project,’
and I didn’t see that when I signed these documents, but I understand that
it’s there now. But, at the time that he presented this to me, I always knew
of it as the ‘Bernard Street project,’ and it included his vision of the whole
project, not just this building.” Trial Tr. (Dec. 18, 2017) at 20:12-18. She also
stated, “[w]hen Brent talked about the Bernard project, it was always the
first two buildings were being completed, also.” Id. at 18:21-22. The
Ziebarths seem particularly aggrieved by Sharon’s use of the word
“project” in her testimony, which they contend had a special meaning to
Brent and Sharon that was unknown to the Ziebarths.
30
Inexplicably, the Ziebarths contend that Sharon’s testimony that she
did not see the loan agreement’s restriction on the use of the loan proceeds
is irrelevant. But it is not irrelevant, as it goes directly to the question of
Sharon’s subjective knowledge and intent. If she did not know the loan
proceeds were restricted to new construction, she could not have had any
intent to deceive the Ziebarths at the time the loan agreement was signed.
The Ziebarths also argue that the bankruptcy court should have
applied a different standard in assessing intent to deceive, quoting Carrillo
v. Su (In re Su), 290 F.3d 1140, 1143 (9th Cir. 2002) (“According to the
Restatement, an action is intentional if an actor subjectively ‘desires to
cause consequences of his act, or . . . believes that the consequences are
substantially certain to result from it.’ ” (citing Restatement (Second) of
Torts § 8A (1964))). But the quoted language from Su refers to the standard
for establishing the intent to injure required to prove a willful injury under
§ 523(a)(6), not the standard for establishing intent to deceive under
§ 523(a)(2)(A). In any event, the Ziebarths point to no evidence in the
record that Sharon knew or believed that the Ziebarths would be injured if
they signed the loan agreement.
The Ziebarths contend that Gary Ziebarth’s statement that Sharon
still believed in Brent was not a valid basis for concluding that Sharon
lacked an intent to deceive because his opinion as to what Sharon believed
is irrelevant. But Sharon herself testified that at the time the loan agreement
31
was signed she believed Brent could successfully develop the Bernard
Property.
Finally, the Ziebarths argue that if the Panel does not reverse, the
judgment should be vacated and the matter remanded for the court to
decide the issues identified in the joint pretrial statement. But remand is
not required if a complete understanding of the issues may be obtained
from the record as a whole. Veal v. Am. Home Mortg. Serv., Inc. (In re Veal),
450 B.R. 897, 919 (9th Cir. BAP 2011). Here, the record fully supports the
bankruptcy court’s conclusion that the Ziebarths did not prove knowledge
of falsity or intent to deceive on Sharon’s part.
For these reasons, we find no error in the bankruptcy court’s
dismissal of the § 523(a)(2)(A) claim against Sharon.
D. The bankruptcy court did not err in entering judgment for Sharon
on the Ziebarths’ § 523(a)(4) claim for embezzlement.
In their SAC, the Ziebarths included two claims under § 523(a)(4),
one for fraud while acting in a fiduciary capacity and the other for
embezzlement. The former claim had previously been dismissed on
Sharon’s Civil Rule 12(b)(6) motion, but the complaint stated that it was
being included to preserve the issue for appeal. The bankruptcy court’s
Statement of Decision addressed only the former claim, stating that the
Ziebarths were not entitled to judgment on that claim because “[t]here was
no evidence of an express trust or that Plaintiffs’ claim arose from fraud or
32
defalcation by Defendant. Moreover, there was absolutely no evidence that
Defendant was a fiduciary of Plaintiffs.” The bankruptcy court made no
finding as to the embezzlement claim. As such, the Ziebarths contend the
judgment must be vacated and remanded for such findings.
To prevail on a claim for embezzlement under § 523(a)(4), a plaintiff
must prove three elements: (1) property rightfully in the possession of a
nonowner; (2) the nonowner’s appropriation of the property to a use other
than which it was entrusted; and (3) circumstances indicating fraud.
Transamerica Comm. Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 555
(9th Cir. 1991).
As noted, even if the bankruptcy court has not made complete
findings, we need not remand if a complete understanding of the issues
may be obtained from the record as a whole. In re Veal, 450 B.R. at 919. We
have reviewed the record in this case and have found no evidence that
would support an embezzlement claim. Importantly, there was no
evidence presented that Sharon misappropriated the loan proceeds. The
undisputed evidence was that Brent, not Sharon, withdrew all of the funds
from the line of credit. And the Ziebarths have not pointed this Panel to
any evidence in the record that would support an embezzlement claim
against Sharon.11 We note also that although the Ziebarths asserted in their
11
Also, the funds misappropriated must have belonged to the plaintiff. Zamani v.
(continued...)
33
closing statement to the bankruptcy court that Sharon was liable for
embezzlement, they did not analyze that claim or identify any evidence at
trial to support such a claim.
E. The bankruptcy court did not err by not including language in the
judgment finding that any debt Brent owed to the Ziebarths would
be nondischargeable in a bankruptcy proceeding.
In its Statement of Decision, the court addressed the Ziebarths’
request to find any debt Brent owed to the Ziebarths nondischargeable:
The Court is not sure what to make of the Plaintiffs’ request
that Brent not benefit from Defendant’s discharge. Defendant is
entitled to the benefits of her bankruptcy discharge. If Brent
attempts to use Defendant’s discharge to inappropriately shield
himself from liability, this Court has no doubt that the Plaintiffs
will take appropriate countermeasures.
On appeal, the Ziebarths argue that in light of the undisputed
evidence against Brent, the bankruptcy court erred in refusing to grant this
relief. We disagree, for the same reasons we conclude that the bankruptcy
court did not err in dismissing the claims against Brent. First, the
bankruptcy court had no jurisdiction over the claims against Brent, and
second, any such finding would have constituted an impermissible
advisory opinion. The bankruptcy court did not err.
11
(...continued)
Razavi (In re Razavi), 539 B.R. 574, 560 (Bankr. N.D. Cal. 2015). It is difficult to imagine
under what theory the Ziebarths could have shown they “owned” the line of credit
proceeds.
34
F. We need not consider the bankruptcy court’s denial of the
Ziebarths’ motion for a new trial.
Although the Ziebarths listed denial of the motion for a new trial in
their statement of issues, they made no arguments in their opening brief
explaining how the bankruptcy court abused its discretion in that ruling.
Accordingly, we will not consider this issue on appeal. See Jodoin v. Samayoa
(In re Jodoin), 209 B.R. 132, 143 (9th Cir. BAP 1997) (“We will not ordinarily
consider matters on appeal that are not specifically and distinctly argued in
appellant’s opening brief.” (Citations omitted)).
CONCLUSION
For the reasons explained above, we AFFIRM the bankruptcy court’s
orders dismissing with prejudice all claims against Brent and the
§ 523(a)(4) claim for fraud or defalcation while acting in a fiduciary
capacity against Sharon. We also affirm the bankruptcy court’s judgment in
favor of Sharon on the §§ 523 and 727 claims. We VACATE and REMAND
the order and the portion of the judgment dismissing the objection to
exemption claim for further proceedings in accordance with this
disposition.
35
|
31 B.R. 28 (1983)
In re FRANK MEADOR BUICK, INC., Debtor.
Bankruptcy No. 7-80-00436.
United States Bankruptcy Court, W.D. Virginia, Roanoke Division.
May 27, 1983.
*29 David A. Furrow, Rocky Mount, Va., for debtor.
Jonathan M. Apgar, Salem, Va., for Ray C. Dobbins.
M. Lanier Woodrum, Roanoke, Va., for J.A. Meador.
J.D. Logan, III, Roanoke, Va., for L.O. Brown, Jr.
F.G. Hertz, Tax Div., U.S. Dept. of Justice, Washington, D.C. and Thomas R. King, Jr., Asst. U.S. Atty., Roanoke, Va., for I.R.S.
G. Franklin Flippen, Roanoke, Va., for United Virginia Bank.
MEMORANDUM OPINION AND ORDER
H. CLYDE PEARSON, Bankruptcy Judge.
This case is before the Court for consideration of the following: (1) Motion of James A. Meador, a secured creditor, to compel marshalling of assets; and (2) final distribution of the remaining assets of Frank Meador Buick, Inc. currently held in escrow.
Frank Meador Buick, Inc. (Debtor herein) filed a voluntary Chapter 11 petition in this Court on April 23, 1980. An Order was entered on December 18, 1980 confirming Debtor's proposed plan of reorganization. In June of 1982, the Debtor's assets were sold free and clear of liens; the proceeds from this sale were impressed with all liens and placed in an interest bearing escrow account pending further order of the Court.
After notice and hearing of the proposed distribution of the sales proceeds, the Court ordered disbursement on September 27, 1982 to the credit of United Virginia Bank (UVB) the sum of $24,257.27, in full satisfaction of their secured claim. By the same Order, the Court allowed the claim of James A. Meador as a secured claim in the amount of $12,396.09 and ordered disbursement of said sum to his credit. This amount represented the balance remaining of the value of the collateral on which he had a lien secondary to the lien of UVB. The balance of James A. Meador's claim was allowed as unsecured. The remaining funds were ordered held in escrow until administrative expenses could be fixed.
On October 4, 1982, counsel for James A. Meador filed a Motion to compel marshalling of Debtor's assets, requesting the UVB be paid first out of any funds resulting from the liquidation of the dealer holdback in which it had a security interest before it is paid out of funds resulting from the liquidation of the new parts inventory in which James A. Meador holds a junior lien.
Marshalling is an equitable doctrine historically developed and traditionally used to prevent a junior lienholder with a security interest in a single property from being squeezed out by a senior lienholder with security interests not only in that property, but in one or more additional properties. The doctrine requires the senior lienholder to first resort to the assets free of the junior lien to avoid the inequity which would result from the unnecessary elimination of the junior lienholder's security with the increased likelihood that the junior creditor will be unable to satisfy his claim. Shedoudy v. Beverly Surgical Supply Co., 100 Cal.App.3d 730, 161 Cal.Rptr. 164 (1980). Before a marshalling order may be imposed, four basic requirements must be met: (1) there must be two or more funds; (2) only one of the creditors may have the right to resort to both funds; (3) *30 there must be an absence of prejudice to the senior lienholder; and (4) the imposition of marshalling must avoid injustice to third parties. Victor Gruen Associates v. Glass, 338 F.2d 826 (9th Cir.1964).
Unlike the claim of UVB, James A. Meador's status as a secured creditor arose post-petition and was not granted a superpriority status by the Court. At the time Mr. Meador obtained his security interest in the new parts inventory of the Debtor, all of the assets of the Debtor's estate were charged with administrative expenses. The holders of the administrative expense claims are prejudiced when assets belonging to the estate are lost as a result of a marshalling order. For this reason, the Motion to compel marshalling is hereby ORDERED denied.
The remaining funds on escrow (including principal and interest to date) total $40,599.89 and are insufficient to pay the priority expenses claimed and set out hereafter. The escrow agent is ORDERED to disburse forthwith the following sums:
(A) $25.75 to the U.S. Bankruptcy Court for excess postage;
(B) $1075.00 to IRS for costs incurred in obtaining appraisal of Debtor's inventory at the direction of the Court;
(C) $3778.40 to James F. Douthat, Esq., the balance remaining unpaid from fees and costs awarded by the Court on September 11, 1981;
(D) $3798.59 to the law firm of Woodward, Fox, Wooten and Hart, P.C., the balance unpaid from the award of fees and costs by the Court on March 3, 1982;
(E) $1095.00 to the law firm of Hutcherson & Rhodes, Ltd.; this amount is hereby allowed as reasonable pursuant to 11 U.S.C. § 330;[1]
(F) $315.00 to James Hennegar for post-petition wages incurred and unpaid in the ordinary course of Debtor's business;
The following actual and necessary administrative expenses have been allowed as filed and the escrow agent is directed to disburse the sums designated which have been computed on a pro-rata basis:
Amount to be
Creditor Claim Allowed disbursed
Ray Dobbins $ 60,830.54 $13,178.08
L.O. Brown $ 12,937.98 $ 2,802.83
Internal Revenue Service $ 57,877.55 $12,538.35
Virginia Employment Comm. $ 779.60 $ 168.69
Houck Advertising $ 8,000.00 $ 1,733.09
Shenandoah Tire $ 276.10 $ 59.81
Air Products $ 143.56 $ 31.10
Any sums which may be paid in the future to Frank Meador Buick, Inc. from finance reserve accounts will be disbursed on a pro-rata basis to those administrative expense creditors whose claims have not been fully satisfied.
As the assets of the Debtor are insufficient to pay the administrative expenses, there are no funds remaining for distribution to pre-petition wage claims or general unsecured creditors.
The Clerk is directed to forward a copy of this Memorandum Opinion and Order to the Debtor, counsel of record and the pre-petition wage claimants.
NOTES
[1] See In re Callister, 5 C.B.C.2d 1058, 8 B.C.D. 446, 15 B.R. 521 (Bkrtcy.1981), appeal dismissed 673 F.2d 305 (10 Cir.1982).
|
23 Ill. App.2d 69 (1959)
161 N.E.2d 590
Lawrence B. Stedman, Plaintiff-Appellant,
v.
Nicholas Spiros, Defendant-Appellee.
Gen. No. 11,269.
Illinois Appellate Court Second District, Second Division.
October 19, 1959.
Released for publication November 5, 1959.
*70 *71 Hollerich and Hurley, of LaSalle, for plaintiff-appellant.
Pool and Langer, of Ottawa, and Berry and O'Conor, of Streator, for defendant-appellee.
JUSTICE SOLFISBURG delivered the opinion of the court.
This is a suit for personal injuries. The defendant filed a motion to strike the plaintiff's Amended Complaint and dismiss the action, which motion was supported by affidavits. Counsel for plaintiff filed suggestions in opposition to defendant's motion, a motion to strike the defendant's affidavits in support of his motion, and counteraffidavits in opposition to defendant's motion. After hearings the trial court allowed defendant's motion to strike and dismissed the Amended Complaint as amended, and ordered that the plaintiff take nothing by his suit and defendant go hence without day with costs awarded defendant. From this final order of the trial court this appeal has been taken.
Since this appeal arises on the pleadings, it is essential that we outline their contents. Plaintiff's Amended Complaint as amended, upon which plaintiff elected to stand, alleged the following:
1. That on September 11, 1952, and prior and subsequent thereto, the State of Illinois was the owner and in possession of a public park known as Starved Rock State Park, in Deer Park Township, LaSalle County, Illinois, consisting of approximately seven hundred (700) acres, including numerous buildings among *72 which were a Lodge building consisting of lounge, lobby, offices, dining rooms; a Hotel building consisting of some forty-eight rooms; one five-room Guest House; two deluxe cabins, and six double and four single cabins; "that said Lodge building and Hotel building consisted of a main building or buildings, with divers additions thereto, all of which extended in an easterly and westerly direction, with means of ingress and egress on the north and south sides of said Lodge building, and were constructed and used for hotel, inn and restaurant purposes, and to provide lodging, meals, relaxation and enjoyment for the general public; that said Guest House was constructed for and used by the guests of said Lodge and Hotel for the purposes aforesaid, and was situated a short distance southwesterly of said Lodge building; that said cabins were constructed for and used by guests of said Lodge and Hotel for the purposes aforesaid, and were situated as follows: Said deluxe cabins were located just west of said Hotel building, and said single and double cabins were located a short distance east or southwest of said Lodge building; that about fifty feet north of said Lodge building there was a steep precipice with a perpendicular drop of more than one hundred feet; that vehicular approach to said Lodge, Hotel and cabins was only from the south by reason of the fact that said several buildings and the premises in connection therewith were surrounded on the north, east and west sides thereof by the aforementioned precipice.
"2. That on the north side of and adjacent to said Lodge building, there was a patio which extended for a considerable distance along the north side of said building; that the portion of said patio nearest said Lodge building was covered with flagstones; that a concrete sidewalk extended in an easterly direction from said flagstones; that the portion of said patio *73 north of said sidewalk and between said sidewalk and said precipice consisted of a mowed lawn or grass plot; that the surface of the ground between said precipice and said sidewalk was sandstone, and was of a soft and crumbling nature; that the main doors on the north side of said Lodge opened directly upon said patio; that from said patio an unobstructed view could be had of Starved Rock, Starved Rock Dam, and the Illinois River Valley as far as the eye could see; that at all of the times herein mentioned, patrons of said Lodge, Hotel and cabins were in the habit of going to the aforementioned patio, lawn and grass plot, and using the chairs and benches there, for their comfort, convenience and enjoyment, as hereinafter set forth, and in order to see and enjoy the scenic beauty of the said park and its surroundings; that in the nighttime the said precipice and the dangerous condition there existing was not apparent or obvious to persons on said lawn; that all of the matters and facts herein set forth were then well known to the defendant, or by the exercise of a reasonable degree of care would have been known to him.
"3. That said patio was constructed and was thereafter maintained for the use, pleasure and enjoyment of the patrons of said Lodge, Hotel and cabins; that in the north side of said Lodge building there are two or more large doors which furnished means of egress from said Lodge building to said patio, and ingress from said patio to said Lodge."
4. That on December 9, 1947, the defendant entered into a certain lease agreement with the State of Illinois whereby said State of Illinois leased to defendant for the term of five years the "aforementioned Lodge building, Hotel, Guest House, cabins, and certain other concessions" for a specified rental, which lease was in effect on September 11, 1952.
*74 5. That on September 11, 1952, and prior thereto, large numbers of guests patronized the Lodge, Hotel, cabins, and restaurant, and numerous chairs and benches "had been placed and maintained" on said patio both on the paved portion thereof and on the lawn portion thereof.
6. That on September 11, 1952, plaintiff registered and became a paying guest of the defendant at said Lodge and was assigned a room in one of the cabins.
7. That on said date, about 8:30 p.m., the plaintiff and some business associates, after dining in the restaurant of the Lodge, went upon the lawn or grass plot; that plaintiff was standing on said lawn "about 15 feet north of said cement sidewalk" and was pointing out to his associates places of interest as shown by the lights therefrom.
8. That the plaintiff had never previously been a guest of the Lodge and had no knowledge or familiarity with the location of the precipice and of the dangerous condition there existing.
9. That the defendant well knew the patio, lawn and grass plot, and the chairs and benches thereon were constantly occupied and used by the Lodge, Hotel and cabin patrons.
10. That it was the duty of the defendant to "see that the aforementioned patio including said lawn or grass plot was properly lighted before patrons were permitted to go thereon" and it was further his duty to "post notices or erect warning signs or otherwise warn the plaintiff or other patrons" of the dangerous conditions there existing.
11. That the defendant disregarded his duty in negligently failing to see that the patio, lawn and grass plot were properly lighted at night, and negligently failed to post any notices or signs or otherwise warn plaintiff and other guests of the Hotel of the dangerous condition there existing.
*75 12. That defendant knew, or should have known, all the facts alleged hereinbefore.
13. That plaintiff was in the exercise of due care and caution for his own safety.
14. That on the day in question, while plaintiff was a guest of the Hotel and standing on the lawn at a point fifteen feet north of the cement sidewalk and at a point close to the edge of the precipice, when it was so dark that he could not see the precipice or the edge thereof, the soil upon which he was then and there standing "suddenly slipped from under his feet and gave away," whereby plaintiff lost his balance and fell over the edge of the precipice, dropping a distance of more than fifty (50) feet, causing him severe and permanent injuries.
15. That as a direct and proximate result of the negligence of the defendant, severe injuries set forth in detail were suffered by the plaintiff to his damage.
Defendant's motion to strike the Amended Complaint and dismiss the action was based on the following grounds:
1. The Amended Complaint was substantially insufficient in law to state a cause of action.
2. The Amended Complaint failed to allege facts creating a duty on defendant to perform the acts demanded of him by the plaintiff.
3. The acts or omissions complained of occurred on premises situated between the northerly side of the Lodge building in Starved Rock State Park and a precipice situated just a short distance to the north thereof. The Amended Complaint does not allege facts to place the duty on the defendant to fence, guard, light, or otherwise maintain said parcel of land.
4. The Amended Complaint does not allege that the premises demised to defendant by the State of Illinois included the premises located between the northerly side of the Lodge building and the edge of the precipice, *76 and said premises remained in the possession and control of the State of Illinois for the use and benefit of the general public. Defendant was never obliged to maintain said premises between the northerly side of the Lodge building and the precipice.
[1] The defendant supported his motion with various affidavits, his motion to dismiss being based both on Section 45 and Section 48 of the Civil Practice Act (Ill. Rev. Stats., Ch. 110, § 45, 48). The affidavits in support of the motion set forth the lease agreement, photographs of the Lodge site, lengthy verified statements by the defendant and an employee as to the physical facts concerning the Lodge building and surrounding terrain, as well as evidentiary matters concerning the occurrence which befell the plaintiff on September 11, 1952. While the trial judge considered that the defendant properly asserted his defense by means of a motion to dismiss under Section 48 of the Practice Act, a careful study of the record convinces this Court that Section 48 could not properly be availed of in this case. The defense which the defendant sought to raise does not come within any of the nine enumerated grounds referred to in Subsection (1) of Section 48. Defendant's asserted defense is not affirmative matter which would bring it within the scope of Subparagraph (i) of Subsection (1) of Section 48, inasmuch as defendant's affidavits consisted largely of evidence upon which defendant proposed to contest facts stated in the Complaint. (See John v. Tribune Co., 19 Ill. App.2d 547, 553.) That conclusion does not dispose of this appeal, and it follows that disposition of the defendant's motion must be made upon the allegations of plaintiff's Amended Complaint as amended. (Hansen v. Raleigh, 391 Ill. 536, 550.) The trial judge filed a memorandum opinion in which he held that the defendant's duty of care did not extend beyond the physical premises over which the defendant *77 had control. The plaintiff earnestly maintains that the defendant as a hotel proprietor had (1) a duty to warn his guests of the dangerous conditions existing by reason of the natural precipice located "about fifty (50) feet north of the Lodge building," and (2) a duty to "see that" the patio and surrounding grass plot leading to the precipice were properly lighted at night. In the view we take of this case, the sufficiency of the plaintiff's Complaint revolves around the question whether defendant had these duties which plaintiff contends that he had.
Numerous cases involving the liability of a hotelkeeper or innkeeper for injury to his guests have been cited to us by the parties, and our independent research has directed our attention to additional authorities, but no decision has been cited or found with facts approximating the factual situation in the instant case. One of the leading cases in Illinois is the case of Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312. There plaintiff sued the defendant hotel corporation to recover for personal injuries sustained by her as a result of falling or tripping over an "offset" in the floor of a corridor in the hotel building of the defendant. The hotel had two entrances, one entrance was from Broadway Street and the other from Fourth Street in East St. Louis, Illinois. The entrance from Fourth Street led into a vestibule and thence into a corridor leading into the lobby of the Hotel. The corridor, some sixty feet in length, contained two offsets or steps approximately six inches in height and about sixteen feet apart. The defendant corporation had constructed the hotel and owned and was in possession of the same at the time plaintiff sustained her injuries. The Supreme Court in the Pollard case described the duty of a hotelkeeper in the following language, pp. 319, 320:
*78 "The proprietor of a hotel to which he invites the public to come in order that he may make gains thereby has no right to permit the existence of such dangerous and unguarded offsets as this one was, so that the slightest mistake on the part of the guest might result in injury to him. (Hayward v. Merrill, 94 Ill. 349; Chicago City Railway Co. v. Fennimore, 199 id. 9; Pauckner v. Wakem, 231 id. 276; Downing v. Merchants Nat. Bank of Greene, 192 Iowa 1250, 184 N.W. 722, 20 A.L.R. 1138; Pelton v. Schmidt, 194 Mich. 345) Under the law of this State the defendant owed a duty to the plaintiff, who was in its hotel as a paying guest, to exercise reasonable care and prudence to provide a safe and suitable entrance to the hotel and have such entrance so constructed and maintained that guests would not be liable to fall over or trip down a step by reason of the misleading view afforded by the floor of the entrance to the hotel building. The plaintiff having entered the hotel by means of the corridor in question and having parked her car near such entrance with the knowledge of the agent of the defendant, it was only natural that she should seek to leave the hotel by the same entrance through which she came, and the defendant should have anticipated that fact and kept the corridor lighted or have warned the plaintiff of the steps in such corridor. The law does not charge one with anticipating dangers and negligent conditions, but he may assume that others have done their duty to give proper warning of hidden dangers. (Chicago City Railway Co. v. Fennimore, supra) The plaintiff was a stranger in the hotel, and as such had a right to assume that the entrance to the hotel, maintained for the purpose of carrying on the hotel business of the defendant, would be maintained in such condition as to make it reasonably safe for the guests of the hotel, and that such guests would not be liable to step into dangerous pitfalls by reason of the construction *79 of the floor of the corridor entering the hotel...."
[2] While defendant contends that a hotelkeeper is in a different category from other proprietors of business establishments, the Illinois decisions have uniformly held that the duty of a hotelkeeper towards his guests is substantially the same as the duty of other business proprietors to their business invitees. Pauckner v. Wakem, 231 Ill. 276, involved a suit for personal injuries brought against a warehouse company. The plaintiff had come to the warehouse to obtain certain pieces of machinery stored there for his employer. When he reached the warehouse the plaintiff was conducted down a long aisle where he was shown the goods. The plaintiff and a companion removed the box to a nearby door whereupon the plaintiff left the box to seek a rest room. In passing down the unfamiliar passageway of the dimly lighted warehouse leading from the goods to the outside, the plaintiff fell through an unprotected elevator shaft and was severely injured. The court held that the plaintiff was lawfully upon the premises of the warehouse by implied invitation; that the warehouseman owed him the duty to exercise due care for his safety while on the premises; that the invitation to go to the warehouse for goods must be held to and include all the space occupied by the goods, together with necessary passageways in or out of the warehouse. In this case the unguarded elevator shaft into which the plaintiff fell was in the open space or passageway through which one would necessarily have to pass in order to get the goods stored immediately east and south of the elevator.
In Kalil v. Wolldenroot Operating Co., 341 Ill. App. 58, plaintiff sued for personal injuries incurred while walking across a metal vault door in a Chicago sidewalk. Plaintiff sued the owner of the building to *80 which the vault door led, the lessee of a corner restaurant in the building, and the lessee of the balance of the building operated as a hotel. At the close of plaintiff's case, the trial court directed verdicts for the lessees. With reference to the hotel corporation the Appellate Court, First District, observed that there was no evidence or justifiable inference that the hotel corporation "possessed or controlled in any way or to any extent the vault door or that part of the basement" to which the door led and that it had no obligation with reference to the vault door so that judgment in favor of the hotel corporation was correct.
In Mauzy v. Kinzel, 19 Ill. App. 571, the action was brought by a guest in defendant's hotel to recover damages for injuries sustained by the plaintiff as a result of falling into an unguarded elevator shaft in the hotel. At an angle in the hall from which plaintiff's room opened there was a short hall containing an opening leading into the elevator shaft, and the opening contained no door or barricade. This short hall leading to the elevator was used by the defendant to store articles of furniture, but he did not use the elevator. There was evidence that the defendant knew that the door to the elevator shaft was left open periodically by persons who repaired the elevator. During the night plaintiff, seeking the bathroom, found the opening in the elevator and mistaking it for a door stepped in, falling to the bottom of the shaft and receiving injuries. The court held that, although plaintiff had no actual control of the short hall and the elevator shaft itself, nevertheless, because of their proximity to the main hall which was under defendant's control, under the conditions there present there was a duty upon the hotelkeeper to bar or close up in some fashion the entrance to the small hall and thus prevent hotel guests from accidentally entering the passage in darkness and proceeding into the open shaft.
*81 [3] The Illinois cases hold that a defendant's duty to a business invitee is a duty to exercise reasonable care for the invitee's safety while he is on that portion of the premises required for his purposes. Toward the invitee the owner of premises must use reasonable care and caution to keep the premises reasonably safe for the use of such invitee. Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 157. The possessor of premises is under the duty to provide reasonably safe means of egress and ingress for the invitee. Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343; to the same effect, 28 Am. Jur., Innkeepers, Section 57, pages 579, 580; 43 C.J.S. Innkeepers, Section 22, page 1176 et seq.
Exhaustive research not only among Illinois decisions but decisions of other jurisdictions, texts and treatises, has failed to reveal any authority for a cause of action upon the facts alleged in the plaintiff's Amended Complaint.
[4, 5] The principles applicable in testing the sufficiency of a complaint upon a motion to strike and dismiss are too well known to require citation of authority. The motion to strike or dismiss admits the truth only of facts properly pleaded, as distinguished from conclusions, and every allegation is to be taken most strongly against the pleader. Plaintiff should always plead facts sufficient to make out a prima facie showing that the conclusion of the pleader is warranted. Nagel v. Northern Illinois Gas Co., 12 Ill. App.2d 413.
Much of the plaintiff's Amended Complaint consists of conclusions devoid of supporting facts which would indicate that the conclusions are entitled to any presumption that they are warranted. Reducing the Complaint to its substance, it alleges the following facts: The plaintiff, while a guest of the defendant in a cabin operated in conjunction with defendant's Lodge *82 Hotel building and after having dined in the defendant's dining room in the Lodge building, ventured forth at 8:30 p.m. with some business companions to view the scenery through doors on the north side of the Lodge building. Plaintiff advanced out onto a flagstone patio immediately north of the Lodge building, walked an unstated distance eastwards on a concrete sidewalk and then proceeded north from the said sidewalk onto a lawn or grassy plot extending northward from the sidewalk to the precipice. Proceeding to a point at or near the edge of the precipice, which was approximately fifty (50) feet north of the Lodge building, the plaintiff pointed out to his companions various objects of interest along the Illinois River whose lights identified them against the darkness. While standing on the lawn about fifteen (15) feet north of the cement sidewalk and approximately fifty (50) feet north and an undetermined distance east of the Lodge building, the soil upon which plaintiff was standing "suddenly slipped from under his feet and gave away" and he fell into the precipice. Plaintiff avers that the patio and surrounding area were not lighted and that defendant failed, first, "to see that" the area was properly lighted, and secondly, to warn plaintiff and his other guests of the precipice.
[6] Plaintiff does not allege in his Complaint that the defendant had any possession or control, as lessee or otherwise, over the grassy plot where the plaintiff was standing immediately prior to his unfortunate fall. In fact, plaintiff admits that the lease from the State of Illinois to defendant did not include the place in question and we cannot assume otherwise. The Complaint does not allege that the flagstone patio, benches or chairs were maintained by, or were in any manner under the control of, the defendant, and we must therefore assume the fact to be otherwise. *83 Defendant has urged in the trial court and this Court, and the trial judge agreed with defendant's contention, that the duty of care owed by a possessor of land to a business invitee, whether he be a hotel guest or otherwise, is not extended beyond the physical premises over which the defendant has possession or control. The decisions in Illinois, the most pertinent of which have been cited previously in this opinion, impose upon the defendant the duty to exercise reasonable care to keep in a safe condition those portions of the premises included within the invitation to the invitee, including reasonably safe means of ingress and egress, even where the mode chosen is not the customary one but one which is allowed by the owner, Packard v. Kennedy, 4 Ill. App.2d 177. The issue presented here is how far beyond the premises over which the defendant had possession and control does defendant's duty of due care extend to provide a reasonably safe means of ingress and egress for plaintiff. Clearly, if the brink of the precipice were a step or two from the defendant's door, or from the stone patio to which defendant's door opened, we would have a different case than is now presented to us. Decisions to which we have adverted, such as Pauckner v. Wakem, 231 Ill. 276, and Mauzy v. Kinzel, 19 Ill. App. 571, involved factual situations similar to the hypothetical example just described. In the Pollard case and the balance of the cited cases the plaintiff was upon premises directly under the possession and control of the defendant, which fact obviously distinguishes them from the case at bar.
This accident occurred in a seven hundred acre park located along the Illinois River, containing all the scenic attractions and potential dangers which customarily are to be found in a park of this kind. Defendant could not, of course, be expected to warn *84 against the innumerable hidden dangers in a seven hundred acre park, nor could he be expected to light those same potentially dangerous places during the darkness or when visibility is restricted.
We attach no little significance to the fact that the dangerous condition, which directly accounted for plaintiff's injuries, was a natural condition of the terrain, as distinguished from an artificial or man-made condition.
[7] The Restatement of Torts, in treating the general subject matter with which we are concerned in the present case, indicates that liability is imposed only on persons who are "possessors of land," as defined in the Restatement, with but one minor exception to which we shall presently refer. A "possessor of land" is there defined in substance as a person who has or has had occupancy or control of land. Section 343 of the Restatement pertains to liability of business visitors by a "possessor of land" and provides:
"§ 343. Dangerous Conditions Known to or Discoverable by Possessor.
"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
"(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
"(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
"(c) invites or permits them to enter or remain upon the land without exercising reasonable care
"(i) to make the condition reasonably safe, or
*85 "(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility."
Section 343 just set forth is restricted to the "possessor of land."
Section 363 of the Restatement of Torts, which would more nearly apply to the case at bar, reads as follows:
"§ 363. Natural Conditions.
"Neither a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway." (Italics supplied)
Section 363 refers to the liability of a possessor of land, lessor, vendor or transferor for a natural condition present on his land, not on land possessed or occupied or controlled by another. Therefore, Section 363 does not describe the facts alleged in the instant case. However, it would seem to follow from Section 363 that the case at bar is an even clearer case of nonliability than the factual situation described in Section 363 of the Restatement. In our opinion, Section 363 tends to support defendant's position. The plaintiff places reliance upon Rudolph v. Elder, 105 Colo. 105, 95 P.2d 827. In that case, after arriving and registering at a hotel, plaintiff was advised by a hotel employee and later by an employee in a nearby independently operated garage, to store her automobile in that garage and to return to the hotel by means of a commonly used short route. Returning to the hotel by the suggested short route, plaintiff entered a rear door in the hotel and in the darkness fell into a freight elevator shaft and was severely injured. The Supreme *86 Court of Colorado upheld a verdict in favor of the plaintiff, observing that a hotelkeeper's duties are to keep his premises reasonably safe for the use of his patrons and that that duty extends to all portions of the premises to which a guest may be reasonably expected to go. We would only point out that in the Rudolph case the plaintiff was upon the defendant's premises at the time of the occurrence and that, therefore, because he had possession and control of the premises in question, it was logical to impose a duty upon him to guard and light the area, particularly when the evidence tended to show that the route used by plaintiff was commonly used by guests. In the present case, the area upon which plaintiff ventured forth and met severe injuries was not occupied or controlled by the defendant and was not under his jurisdiction, but rather that of the State of Illinois. To hold defendant liable upon the facts stated in the Amended Complaint would be a radical departure from existing law in this State which we regard as sound.
The briefs have raised certain additional issues, but in view of the conclusion we have reached, it is not necessary to extend this opinion by a discussion and decision of those issues.
The judgment of the Circuit Court of LaSalle County is, therefore, affirmed.
Affirmed.
CROW and WRIGHT, JJ., concur.
|
869 F.2d 25
57 USLW 2511
UNITED STATES of America, Appellee,v.Orlando BERRIOS, Defendant-Appellant.
No. 349, Docket 88-1280.
United States Court of Appeals,Second Circuit.
Argued Nov. 16, 1988.Decided Feb. 13, 1989.
Peter S. Jongbloed, Asst. U.S. Atty., New Haven, Conn. (Stanley A. Twardy, U.S. Atty., D.Conn., New Haven, Conn., on the brief), for appellee.
Sarah A. Chambers, Asst. Federal Public Defender, New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, D.Conn., on the brief), for defendant-appellant.
Before FEINBERG, MESKILL, and KEARSE, Circuit Judges.
KEARSE, Circuit Judge:
1
Defendant Orlando Berrios appeals from an order of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, denying his motion for correction of sentence, entered after his plea of guilty to one count of theft of mail, in violation of 18 U.S.C. Sec. 1709 (1982). Berrios's sentence included (1) a one-year jail term, execution of which was suspended, (2) a three-year term of probation, and (3) an order pursuant to the Victim and Witness Protection Act, 18 U.S.C.A. Sec. 3663 (West 1985 & Supp.1988) ("VWPA" or the "Act"), requiring him to pay $2,905 as restitution for amounts he admitted he had stolen. On appeal, he argues that the district court erred in ordering restitution in an amount higher than that charged in the information or reflected in his plea agreement. Finding his arguments to be without merit, we affirm the order of the district court.
BACKGROUND
2
In September 1987, Berrios, a former United States Postal Service employee, was charged in a one-count information with having stolen from the mail a United States Treasury check in the amount of $1,349. In a plea agreement with the government, Berrios agreed, inter alia, to plead guilty to that count in complete satisfaction of any federal criminal liability he might have for theft of negotiable instruments while he was a Postal Service employee. Without specifying an amount, the plea agreement advised Berrios that the court might order him to "make restitution to the victims of this offense" under the provisions of the VWPA in the amount of the value of the stolen property.
3
On September 30, 1987, a plea hearing was held. The government described its evidence against Berrios, which included his statement to a postal inspector that during a three-month period in 1986, he had taken 14 or 15 federal and state checks from the New Haven Post Office, one of which was the check described in the information. The government informed the court that nine of the stolen checks, including the one described in the information, had been paid by the New Haven Savings Bank (the "Bank"); the Bank's losses on account of those nine checks totaled $2,905. Pursuant to Sec. 3663, the government sought restitution in that amount.
4
Berrios's counsel acknowledged that $2,905 was the total of the recovered stolen checks but disputed the court's authority to require restitution in this amount, stating as follows:
5
MS. CHAMBERS: ... I would agree that the total amount missing was two thousand, nine hundred and five dollars but the amount in the information was one thousand, three hundred and forty-nine dollars and my reading of the statutes that govern restitution limit the Court's authority to impose restitution to the amount contained in the offense for which the person is found guilty so I believe that this plea agreement effectively limits the Court's authority to order restitution in excess of thirteen, forty-nine.
6
(Plea Transcript at 18.) The court indicated that it believed it had the authority under the Act to order restitution in the higher amount but instructed the government to research the matter further prior to sentencing. The court warned Berrios that it might order restitution in the amount of $2,905. Immediately following this colloquy, Berrios pleaded guilty to the one-count information.
7
The sentencing hearing was held on November 13, 1987. The court began by stating that it was not planning to sentence Berrios to incarceration because it appeared that he had a good attitude: "You seem to have genuine remorse which is one of the major factors and you have tried to cooperate and the restitution will be important ...." (Sentencing Transcript ("Tr.") 4.) The court then invited the attorneys to comment on the permissible maximum amount of the restitution order.
8
The government took the position that the court had the power to order restitution in the entire amount requested. Berrios's attorney again stated the position that the Act forbade an order for restitution in any amount higher than that charged in the indictment or information unless the defendant agreed to a higher amount in a "fully bargained" plea agreement specifying that amount. After acknowledging that the check whose theft was charged in the information was included in the $2,905, Berrios's counsel also stated as follows:
9
... I would just like to add that when Mr. Berrios was interviewed by the agents back in, I believe it was October of 1986, he fully knowledged [sic ] guilt and acknowledged a desire or expressed a desire to make restitution and he will certainly abide by whatever order this Court imposes and I am not trying to tell the Court that he doesn't feel that he has a moral obligation to pay back $2,905, but I just think it's important to clarify that I think the Court's authority is limited to the thirteen, forty-nine and I think that whatever the Court does, he is not precluded from paying back the full amount.
10
(Tr. 8-9.)
11
After asking Berrios whether he wished to make any statement to the court before imposition of sentence, and receiving a negative response, the court stated:
12
All right, Miss Chambers has said it very well for you on the restitution point and I think she's made another statement which is very important and that's your moral obligation. Now, I'm going to order the full restitution and it may be that if you and she feel it appropriate you might appeal it to the Second Circuit to find out if I've exceeded my jurisdiction but I think that morally it certainly is the proper position to take and I'm pleased that you're taking it.
13
(Tr. 10.) The court proceeded to sentence Berrios as indicated above, ordering him to pay restitution in the amount of $2,905.
14
Berrios did not appeal from the judgment imposing sentence but moved in the district court for correction of his sentence, arguing that the court had no power to order him to pay restitution in an amount higher than the $1,349 charged in the information. The court denied the motion without comment. On Berrios's motion for reconsideration, the court adhered to its denial, stating that "the court is not subject to any limitations under the VWPA in ordering restitution." This appeal followed.
DISCUSSION
15
On appeal, Berrios renews his contention that he is entitled to a reduction of his sentence, arguing that he had neither conceded liability for, nor agreed to make restitution of, any amount higher than the sum charged in the information to which he pleaded guilty, and hence the court had no power to order restitution in a higher amount. For the reasons below, we disagree.
16
Two sets of statutory provisions relating to restitution were in effect at the time Berrios committed his offense: (1) the Federal Probation Act, 18 U.S.C. Sec. 3651 et seq. (1982) ("Probation Act") (repealed effective November 1, 1987), which was applicable to offenses committed prior to November 1, 1987, and (2) the VWPA, which was enacted in 1982 and became effective with respect to offenses committed on or after January 1, 1983. The district court sentenced Berrios under the VWPA provisions.
17
The principal pertinent provision of the VWPA, originally numbered Sec. 3579, renumbered Sec. 3663 effective November 1, 1987, provides that "[t]he court, when sentencing a defendant convicted of an offense under this title[,] ... may order ... the defendant [to] make restitution to any victim of such offense." 18 U.S.C.A. Sec. 3663(a) (West Supp.1988). As to the amount of restitution, Sec. 3663(b) provides, in part, as follows:
18
(b) The order may require that such defendant--
19
(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense--
20
(A) return the property to the owner of the property or someone designated by the owner; or
21
(B) if return of the property under subparagraph (A) is impossible, impractical, or inadequate, pay an amount equal to the greater of--
22
(i) the value of the property on the date of the damage, loss, or destruction, or
23
(ii) the value of the property on the date of sentencing,
24
less the value (as of the date the property is returned) of any part of the property that is returned.
25
18 U.S.C.A. Sec. 3663(b)(1) (West 1985). The Act thus provides, in essence, that when an offense causes property loss, the court may, in sentencing the defendant for that offense, order the defendant to pay the victim of that offense the value of the loss. The reference in the above valuation section to "the offense" and the repeated references to "the" property provide some facial support for the proposition that the maximum amount of restitution that the court may order is the amount of loss resulting from the very offense for which the defendant is being sentenced, and perhaps for the proposition that the charging instrument establishes the maximum amount of that loss.
26
Yet, had this been Congress's intent, it would have been a simple matter for the statute to state plainly that the sentencing court may not order restitution for property loss in any amount higher than the amount of loss specified in the count or counts on which the defendant is convicted. The Act does not so specify, however, and two of its procedural provisions suggest a contrary intent. First, Sec. 3664(a) provides that "[t]he court, in determining ... the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense," and that it shall consider "such other factors as the court deems appropriate." 18 U.S.C.A. Sec. 3664(a) (West 1985) (emphasis added). Under subsection (a), therefore, even the amount of the victim's loss, which of course may logically be more than the amount stated in the charging instrument, is not posited as the maximum possible restitution but only as a factor that the court must "consider." And the direction that the court consider such other factors as it deems appropriate gives considerable flexibility in setting the restitutionary amount. Second, Sec. 3664(e) gives estoppel effect, in a subsequent civil proceeding, to "[a] conviction of a defendant for an offense involving the act giving rise to restitution under [Sec. 3663]." 18 U.S.C.A. Sec. 3664(e) (West 1985) (emphasis added). If Congress had intended to limit the permissible amount of restitution to the amount specified in the count charging the offense of which the defendant is convicted, subsection (e) could have read more simply "for an offense giving rise to restitution," and the phrase "involving the act" would be superfluous. We do not regard it as superfluous, however, see United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955) ("[i]t is our duty 'to give effect, if possible, to every clause and word of a statute' " (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 27 L.Ed. 431 (1883))), for we think the inclusion of the phrase implies that the acts for which restitution may be ordered must be related to the offense of which the defendant is convicted, but that those acts may extend beyond the boundaries of the offense itself.
27
In sum, a reading of all the VWPA's restitutionary sections together suggests that the Act permits the sentencing court, in ordering restitution to any victim of the offense of which the defendant is convicted, to order payment of an amount that takes into consideration the entire amount of the victim's loss resulting both from the offense itself and from the defendant's related acts. Under this interpretation, if the defendant has engaged in a continuing course of conduct causing a given victim a series of losses, restitution may be ordered, assuming the proper procedures are followed, in the entire amount of the loss even if the defendant is convicted of a limited offense that technically caused only part of the loss.
28
Our reading of the history of the Act confirms the view that Congress intended to give the sentencing court this broader restitutionary authority. Prior to 1983, the Probation Act was the sole source of the federal sentencing court's authority to order a convicted defendant to make restitution to the victim of his offense. That statute, which authorizes the court to impose restitution only as a condition of probation, provides that a defendant "[m]ay be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." 18 U.S.C. Sec. 3651. Most courts have concluded that a restitution order under this section generally may not exceed amounts charged in the offense for which the defendant is actually convicted, see, e.g., United States v. Elkin, 731 F.2d 1005, 1011 (2d Cir.), cert denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984); United States v. Orr, 691 F.2d 431, 433-34 (9th Cir.1982), and cases cited therein; United States v. Tiler, 602 F.2d 30, 33 (2d Cir.1979), though several courts, including this one, have indicated that the sentencing court has the power under Sec. 3651 to order restitution in a higher amount if the defendant agrees to pay such restitution or concedes his liability for the higher amount, see, e.g., United States v. Woods, 775 F.2d 82, 87-88 (3d Cir.1985); Phillips v. United States, 679 F.2d 192 (9th Cir.1982); United States v. Elkin, 731 F.2d at 1012 (distinguishing Phillips on its facts).
29
One of Congress's goals in enacting the VWPA was to increase the sentencing court's use of restitution orders, deemed to be too limited under Sec. 3651. See S.Rep. No. 532, 97th Cong., 2d Sess. ("S.Rep. 532") 30-33, reprinted in 1982 U.S. Code Cong. & Admin. News ("USCCAN") 2515, 2536-39. Noting that one of the problems with Sec. 3651 was that "[a]s a matter of practice, even that discretionary grant of authority [was] infrequently used," id. at 30, USCCAN at 2536, the report of the Senate Judiciary Committee stated that "[t]he premise of [Sec. 3663] is that the court in devising just sanctions for adjudicated offenders, should insure that the wrongdoer make goods [sic ], to the degree possible, the harm he has caused his victim," id.; see also id. (Act designed to help "insure that the wrongdoer is required to the degree possible to restore the victim to his or her prior state of well-being") (emphasis added). The legislative history concluded that through the enactment of Sec. 3663, the "increased use of restitution orders [would be] encouraged." Id. at 33, USCCAN at 2539. The Findings and Purposes included in the Act itself similarly stated that one of the purposes of the Act was "to ensure that the Federal Government does all that is possible within limits of available resources to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant." Pub.L. No. 97-291, Sec. 2, 96 Stat. 1249 (emphasis added), reprinted in note following 18 U.S.C. Sec. 1512 (1982).
30
The apparent conflict between Congress's expressed intent that crime victims be compensated to the maximum extent possible and the proposition that the charge on which the defendant is convicted establishes the maximum restitution that may be ordered is intensified by the fact that the vast majority of criminal cases are concluded by plea bargains. See, e.g., Innes v. Dalsheim, 864 F.2d 974, 876 (2d Cir.1988) (noting a 1976 "estimate[ ] that as high as 90 percent of all criminal convictions are obtained by guilty pleas"); Fed.R.Crim.P. 11 Advisory Committee Note to 1974 Amendment (noting a 1968 "estimate indicat[ing] that guilty pleas account for the disposition of as many as 95% of all criminal cases"); see also Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) (the multitude of cases makes plea bargaining "an essential component of the administration of justice"). Since plea bargains often allow the defendant to be convicted of but a fraction of the charges leveled against him, a rule that the offense to which the plea is entered establishes the maximum restitution the court is allowed to order would in many cases minimize the restitution available to the victim of the offense.
31
We doubt that Congress was unaware when it enacted the VWPA of the prevalence of disposition through plea bargaining, see, e.g., Notes of Committee on the Judiciary on Fed.R.Crim.P. 11, H.R.Rep. No. 247, 94th Cong., 1st Sess. 6, reprinted in 1975 USCCAN 674, 678 ("[n]o observer is entirely happy that our criminal justice system must rely to the extent it does on negotiated dispositions of cases"); see generally S.Rep. 532, at 10, reprinted in 1982 USCCAN at 2516, and there is at least circumstantial evidence that in retrospect Congress interpreted Sec. 3663 as plainly not meaning that the offense to which a defendant pleaded guilty would establish the maximum restitution that the sentencing court could order. Where a plea of guilty is proffered, the Federal Rules of Criminal Procedure require the sentencing court, before accepting the plea, to advise the defendant of the possibility that he may be required to pay restitution to any victim of the offense to which he pleads guilty:
32
Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
33
(1) ... when applicable, that the court may also order the defendant to make restitution to any victim of the offense ....
34
Fed.R.Crim.P. 11(c). This language was added to Rule 11 in 1985 in recognition of the VWPA. See Rule 11 Advisory Committee Note. The Rule does not require the court to advise the defendant of the maximum amount of restitution that may be ordered, and the Advisory Committee Note states that the reason for this omission is that the "upper limit cannot ... be stated at the time of the plea." Id. (emphasis added). The inference required from this observation is that the amount of loss specified in the count to which the defendant pleads guilty simply does not provide an upper limit on the restitution that may be ordered. Given the process by which the Rules of Procedure governing proceedings in the district courts are adopted, this interpretation has the imprimatur of Congress. Rules changes are generally proposed by the Supreme Court and are presented to Congress along with the notes of the Judicial Conference advisory committees that drafted the proposals; the proposed changes do not become effective until at least 90 days after they have been presented to Congress. 18 U.S.C. Sec. 3771 (1982); 28 U.S.C. Sec. 2072 (1982). Congress may, either expressly or by inaction, allow the proposed rules to take effect; or it may delay or prevent their taking effect; or it may amend them and allow them to take effect as amended. See, e.g., United States v. Pisani, 773 F.2d 397, 404 (2d Cir.1985). Though Congress from time to time has exercised its power to amend parts of various Rules, including Rule 11, see, e.g., Fed.R.Crim.P. 11 Advisory Committee Note to 1974 Amendment, it was apparently content to allow the 1985 modification of the terms of Rule 11(c)(1) to take effect without amendment and without disturbing the Advisory Committee Note's statement that the maximum permissible restitution on a given count "cannot" be determined at the time of the plea.
35
Most of the other courts of appeals that have considered this question have concluded as we do that Sec. 3663 authorizes the sentencing court, in appropriate circumstances, to order restitution in an amount higher than the value of the property that is the subject of the offense of which the defendant is convicted. See, e.g., United States v. Pomazi, 851 F.2d 244, 249 (9th Cir.1988); United States v. Kirkland, 853 F.2d 1243, 1249-50 (5th Cir.1988); United States v. Hill, 798 F.2d 402, 405 (10th Cir.1986); United States v. Paul, 783 F.2d 84, 88 (7th Cir.1986); United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985). But see United States v. Barnette, 800 F.2d 1558, 1571 (11th Cir.1986) (per curiam), cert. denied, 480 U.S. 935, 107 S.Ct. 1578, 94 L.Ed.2d 769 (1987). The cases most similar to the present case are Paul and Pomazi.
36
In Paul, the defendant pleaded guilty to an information, of which count 2, the only count to which the VWPA was applicable, charged her with embezzlement of $12,500 from the bank by which she had been employed. Her oral plea agreement did not mention restitution, but the subject was raised by the court at her plea hearing. In response to the court's inquiry, Paul's attorney stated that Paul " 'would admit responsibility for $118,000 shortage.' " Id. at 86. The court ordered restitution in the amount of $141,050. On appeal, Paul contended that the court had no power to order restitution in any amount higher than $12,500. The court of appeals largely rejected this contention. Though it agreed that the court should not have ordered restitution in an amount higher than $118,000, since no higher amount was proven at the presentence stage, it concluded that an order for restitution of $118,000 was permissible. Noting (a) that Paul's counsel had "expressly indicated during the discussion of restitution that Mrs. Paul admitted to having caused losses of $118,000 to the bank," (b) that as a result of the discussion at the plea hearing, Paul "had to have been aware of the fact that the district judge would impose a restitution condition to her sentence of at least $118,000," and (c) that Paul had, but did not exercise "an opportunity to object and withdraw her offer to plead," the court concluded that Paul "did consent to make restitution in the amount of $118,000." Id. at 88.
37
In Pomazi, in which neither the information nor the plea agreement specified a dollar amount for victim losses, the Ninth Circuit similarly ruled that
38
the sentencing court's determination of the proper amount of restitution is not limited by the amount of victim losses alleged in the charging instrument, so long as the defendant is given ample opportunity to contest the restitution amount, the amount of restitution ordered is supported by the evidence, and the amount is judicially established.
39
851 F.2d at 249. It reached this conclusion after noting the implication, discussed above, of the Advisory Committee Note to the 1985 Amendment to Rule 11, and observing that Sec. 3663(b)(2), relating to bodily injury losses, permits restitution of certain types of losses, such as medical expenses and the cost of therapy, which are highly unlikely to be mentioned in an information or indictment. See also United States v. Durham, 755 F.2d at 513 (Congress intended to include as a "victim" any "person who suffered injury as a result of the defendant's actions that surrounded the commission of the offense, regardless of whether the actions are elements of the offense charged").
40
In all the circumstances, given the absence of a stated maximum in the Act, the flexibility of discretion conferred by several of the statutory provisions, the repeated expression by Congress of its intent that crime victims be compensated to the greatest extent possible, and the implicit approval by Congress of the Rule 11 commentary, we conclude that Congress did not intend to limit the sentencing court's restitutionary authority to the amount specified in the charge on which the defendant is convicted where the victim of that offense also suffered other losses as a result of the defendant's related course of conduct.
41
This conclusion does not suggest that the sentencing court is authorized to order restitution in the higher amounts without affording the defendant appropriate constitutional safeguards. At a minimum, the defendant must be forewarned that restitution may be ordered in the higher amount, and he must be given an opportunity to contest any allegation as to the amount of loss he is supposed to have caused. Eventually, the amount of loss to be compensated through restitution must either be conceded by the defendant or be adjudicated by the court. See United States v. Weichert, 836 F.2d 769, 772 & n. 4 (2d Cir.1988); 18 U.S.C.A. Sec. 3664(d) (West 1985) (establishing procedures and allocating burdens of proof with respect to disputes as to amount of restitution).
42
In the present case, we conclude that the district court did not exceed its authority in ordering Berrios to make restitution in the amount of $2,905. Berrios was forewarned by the plea agreement that restitution might be ordered. Though it would have been better if that agreement had stated that the government might seek restitution in an amount greater than the $1,349 loss alleged in the count to which Berrios agreed to plead guilty, and the government would be well advised to include, if relevant and possible, a quantified statement to such an effect in all of its plea agreements, see, e.g., United States v. Kirkland, 853 F.2d at 1245, 1249-50, the absence of detail in the agreement in this case was not dispositive. Berrios received ample warning from the court at the plea hearing, prior to entering his plea of guilty, that the court was inclined to require him to make restitution in the total amount of loss theretofore suffered by the Bank as a result of Berrios's admitted series of thefts. In the face of the court's explicit warning, Berrios nonetheless chose to plead guilty.
43
Further, Berrios had acknowledged stealing 14 or 15 checks from the New Haven Post Office over the course of three months, and he did not dispute the fact that the Bank's losses resulting from his thefts totaled $2,905. Rather, his attorney stated that he "fully [ac]knowledged guilt" and the correctness of this figure, and that he recognized his "moral obligation to pay back $2,905."
44
Thus, all of the conditions precedent to the court's ordering restitution in an amount higher than the loss alleged in the information were fulfilled. Berrios was fully informed of the possibility of restitution in the entire amount acknowledged. He had an opportunity to decline to plead guilty; he had an opportunity to seek to withdraw that plea. He attempted neither. Indeed, upon questioning by this Court at oral argument of the present appeal, Berrios's attorney stated that Berrios still has no desire to have his plea vacated. In view of all the circumstances, we conclude that the restitution order did not infringe his statutory or constitutional rights.
45
Finally, we add that if we had concluded that the district court lacked the authority to order restitution for the full $2,905, we would not, in light of the record before us, simply reduce the amount of restitution ordered but would remand to the district court for resentencing. Berrios's acknowledgement of his moral responsibility for the entire loss and his willingness to make restitution were clearly an important factor in the district court's decision as to what other punishments to impose. The court noted, for example, in announcing that it would not sentence Berrios to incarceration, that "the restitution will be important." Thereafter, Berrios's attorney, while repeating the challenge to the court's authority, nonetheless stated that Berrios "will certainly abide by whatever order this Court imposes." Having made such representations to the court in order to induce sentencing leniency, Berrios may not retain the resulting benefits while retracting the undertaking on which the sentencing court has relied.
CONCLUSION
46
The order of the district court declining to reduce the amount of restitution ordered is affirmed.
MESKILL, Circuit Judge, concurring:
47
I concur, but I am not as convinced as the majority that the language of the Victim and Witness Protection Act, 18 U.S.C.A. 3663 (West 1985 & Supp.1988), and the legislative history suggest an affirmative answer to the difficult question Berrios poses.
48
While I agree with the majority's position that in this case restitution in an amount higher than that charged in the information was properly ordered, I am concerned with the future implications of our holding. In my view, ordering restitution in an amount higher than the amount charged in the information is only proper where the higher amount is attributable to collateral consequences arising out of the specific offense to which the defendant has pled guilty. Where there are no such consequences, ordering restitution in the higher amount is an improper expansion of the court's sentencing power. On the facts in this case, however, I would affirm without reaching the question whether restitution may be ordered in an amount greater than the amount charged in the information to which Berrios pled guilty.
49
In challenging his sentence, Berrios does not seek to withdraw his plea. Neither does he request resentencing even though, having had the benefit of a lenient sentence based on his concession of a moral obligation to make full restitution, resentencing is what he should have to face, should the restitution order be ruled excessive. We need not even consider these options, however, because Berrios has no cause whatever to complain. At the time of his bargained-for plea, he knew that there was a likelihood that the order of restitution would be for $2,905, an amount higher than the $1,349 charged in the information. While it is true that Berrios' counsel challenged the court's authority to order restitution beyond the $1,349 charged, counsel acknowledged that $2,905 was the total loss Berrios caused the bank. Counsel stated further that Berrios would "certainly abide by whatever order [the District] Court imposes." Counsel also indicated that her client felt a moral obligation to pay back the higher amount. Sentencing Tr. 8-9. This gave rise to the court's compassionate statement: "You seem to have genuine remorse which is one of the major factors and you have tried to cooperate and the restitution will be important." Id. at 4. The court thereafter sentenced Berrios. The facts in this case show a rather "fully bargained" plea agreement. Having chosen to go along with the plea agreement, I believe Berrios has waived his right to challenge the restitution order. He should not now be heard to complain; he has not been harmed. He has been ordered to do only what he admits he is morally obligated to do and what he agreed to do in order to escape incarceration.
50
I would affirm on this limited basis and leave the more difficult question for another day.
|
574 So.2d 323 (1991)
Anthony M. THOMAS, Appellant,
v.
STATE of Florida, Appellee.
No. 90-1625.
District Court of Appeal of Florida, Fourth District.
February 20, 1991.
Richard L. Jorandby, Public Defender and Joseph R. Chloupek, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for appellee.
PER CURIAM.
We affirm appellant's convictions, but reverse and remand for resentencing so that the appellant can be physically present in the courtroom. See Jacobs v. State, 567 So.2d 16 (Fla. 4th DCA 1990).
WARNER and GARRETT, JJ., concur.
LETTS, J., concurs specially with opinion.
LETTS, Judge, specially concurring.
The majority has appropriately followed the dictates of Jacobs out of this very court and so must I. However, I find Jacobs, as written, unconvincing. We live in a Star-Trek era, in which "presence" is effected by electronic wizardry thought impossible fifteen-years-ago, short of ectoplasm. Under Florida Rules of Criminal Procedure 3.130(a) and 3.160(a), if being "present," in the discretion of the trial judge, can be accomplished by an "electronic audiovisual device" during arraignments and first appearances, I see no reason why the same cannot be extended to sentencing, with appropriate safeguards. It is true that a specific rules exception to Florida Rules of Criminal Procedure 3.180(a)(9) has not been promulgated as to sentencing, yet I see no reason why case law can not provide one if the facts and circumstances warrant it. In truth, the facts and circumstances, sub judice, do exactly that.
Jacobs grounds its conclusion requiring physical presence on the premise that such "is essential to permit the defendant to confer with his counsel privately and have the benefit of his advice." However, Jacobs does not tell us whether the defendant in that case was, in fact, denied private access to counsel for advice. In the case at bar, defense counsel not only did not object to the mere video presence of the defendant,[1] but the court specifically declared a recess so that defense counsel could privately advise and conference with his client, which the record clearly indicates he, in fact, did.
All this being so, if this particular case had preceded Jacobs, I would have voted to affirm it. As it is, since Jacobs has branded the method employed here "fatally and fundamentally flawed," I have no alternative but to concur.[2] However, I believe the Supreme Court of Florida may have tacitly agreed with me when it adopted In re Rule 3.160(a) Florida Rules of Criminal Procedure, 528 So.2d 1179 (Fla. 1988). See also *324 State v. Porter, 755 S.W.2d 3 (Mo. App. 1988).
NOTES
[1] Indeed, for aught we know, he may have implemented it.
[2] I note that the trial judge conducted this sentencing hearing prior to the publication of Jacobs.
|
Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 10, 2017
The Court of Appeals hereby passes the following order:
A18A0020. TAMITRA ANECILIN LAMBERT v. THE STATE.
Lambert filed this direct appeal from her conviction for littering in the
magistrate court.1 On August 24, 2017, this Court transferred Tamitra Anecilin
Lambert’s appeal to the Walton County State Court. The appellee has filed a motion
for reconsideration, asserting the case should be dismissed rather than transferred.
For good cause shown, the appellee’s motion is GRANTED. This Court’s transfer
order of August 24, 2017 is VACATED, and the appeal is REINSTATED.
However, the only avenue of appeal available from a conviction in magistrate
court for violating a county ordinance is set forth in OCGA § 15-10-65, which
provides that review of convictions “shall be by certiorari to the superior court.”
Lambert has failed to follow the appropriate procedure for review. This appeal is
therefore DISMISSED for lack of jurisdiction.
1
Lambert initially filed her appeal in the Georgia Supreme Court, which
transferred the case to this Court. See Case No. S17A1617 (decided June 5, 2017).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/10/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
|
353 B.R. 925 (2006)
In re Michael J. CALABRESE, Jr. Joyce D. Calabrese, Debtors.
No. 06-02121-3P7.
United States Bankruptcy Court, M.D. Florida, Jacksonville Division.
November 13, 2006.
Michael T. Kovach, Kovach & Associates, P.A., Inverness, FL, for Debtors.
ORDER DENYING FORD MOTOR CREDIT COMPANY'S REQUEST FOR HEARING TO REVIEW REAFFIRMATION AGREEMENT
JERRY A. FUNK, Bankruptcy Judge.
This case came before the Court upon Ford Motor Credit Company's ("Movant") Request for Hearing to Review Reaffirmation Agreement ("Request for Hearing"). Debtors filed for relief under Chapter 7 of the Bankruptcy Code on July 18, 2006. Shortly thereafter, Debtors and Movant executed two reaffirmation agreements. (Docket Nos. 11 and 12.)
Reaffirmation agreements are governed by § 524(c) of the Bankruptcy Code, which permits debtors to reaffirm a debt owed to a creditor while excusing such creditor from the consequences of a debtor's discharge. Section 524(c)(2) states that a *926 debtor must receive the appropriate § 524(k) disclosures at the same time or before the debtor enters into a reaffirmation agreement. 11 U.S.C. 524(c)(2) (2006). If the debtor is represented by an attorney, according to § 524(k)(5), the attorney must attest that the reaffirmation agreement is in the best interests of the debtor, and that the agreement does not impose an undue hardship on the debtor. 11 U.S.C. § 524(k)(5) (2006). If, however, there is a presumption of an undue hardship, the attorney must certify that in the attorney's opinion, the debtor is capable of making such payments as required by the reaffirmation agreement. 11 U.S.C. § 524(k)(5)(B) (2006). A presumption of undue hardship occurs when the debtor does not have sufficient funds to make the required reaffirmation payments.
In the instant case, Debtors' attorney attested that there was no presumption of undue hardship on either reaffirmation agreement. However, one reaffirmation agreement required a $333.38 monthly payment, yet Debtors acknowledged that they only had available $282.28 to make the required payments. (See Reaffirmation Agreement Parts B and D, Docket No. 11.) The other agreement required a $341.90 monthly payment, yet Debtors acknowledged that they only had available $290.80 to make the required payments. (See Reaffirmation Agreement Parts B and D, Docket No. 12.) With respect to both agreements, to certify that Debtors would have the needed funds to make the payments, Debtors attached a statement explaining that they obtained a new prescription drug plan which would reduce their monthly expenses, and that they anticipated an increase in projected income from an expected lump sum payment.
Given the language of § 524, the Court believes that Congress did not intend for judges to review reaffirmation agreements when the debtor has been represented by an attorney. However, if a debtor is acting on his or her own behalf, then the Court is required to examine the reaffirmation agreement and decide whether such agreement is in the best interests of the debtor, and if it presents an undue hardship that would prevent the debtor from being able to make the required payments. Such is not the case here. Debtors were represented by counsel when they entered into the reaffirmation agreement with Movant. Further, if the Court set a hearing on this matter responsibility for the reaffirmation agreement would reside with the Court, rather than the Debtors' attorney, as intended by Congress. Thus, the Court will not hold a hearing on this matter. Based on the foregoing, it is
ORDERED:
Movant's Request for Hearing is denied.
|
930 F.2d 922
Unpublished DispositionNOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.Olan Randle ROBISON, Plaintiff-Appellant,v.Gary MAYNARD, Warden, Oklahoma State Penitentiary, LarryMeachum, Superintendent, Department ofCorrections, State of Oklahoma, AttorneyGeneral, of the State ofOklahoma,Defendants-Appellees.
No. 89-6166.
United States Court of Appeals, Tenth Circuit.
April 12, 1991.
Before LOGAN, JOHN P. MOORE and TACHA, Circuit Judges.
ORDER AND JUDGMENT*
JOHN P. MOORE, Circuit Judge.
1
The question before us is whether the district court erred in denying petitioner, Olan Randle Robison, an evidentiary hearing following remand from this court. We hold the district court properly construed the remand, and following its determination of the facts of the case, properly denied an evidentiary hearing.
2
When this case was initially before us, we upheld the constitutional validity of Mr. Robison's state conviction with one exception. Robison v. Maynard, 829 F.2d 1501 (10th Cir.1987).1 Concerned, however, over the possibility the Oklahoma Court of Criminal Appeals might have set aside that conviction on certain grounds of prosecutorial misconduct, we remanded the case to the district court for inquiry into why the specific conduct of the prosecutor was not raised in petitioner's state appeal.2 Our order returned the case to the district court:
3
for the purpose of conducting an evidentiary hearing into the reasons why Petitioner's state appellate counsel did not raise the issue of prosecutorial misconduct in the state appeal and for further determination of the issue of adequate representation in light of the evidence produced.
4
Id. at 1513 (emphasis added).
5
Upon receipt of the remand, the district court assigned the matter to a magistrate. On respondent's motion, the magistrate determined, contrary to our assumption, petitioner's state brief had raised the specific issue of prosecutorial misconduct about which we were concerned. Because of this finding, the magistrate determined an evidentiary hearing was precluded by the terms of our mandate.3 Following a hearing on petitioner's objection to the magistrate's report, the district court denied petitioner's request to hold a new hearing and adopted the magistrate's recommendation. Specifically, the district court held:
6
[T]he scope of the evidentiary hearing mandated by the Appellate Court was limited to proof on the issue of state appellate counsel's reason for failing to raise the issue of prosecutorial misconduct in Petitioner's state appeal. Having found that the issue was raised by counsel in his brief before the Court of Criminal Appeals, and having found that the Court of Criminal Appeals considered that issue in its determination of Petitioner's appeal, the scope of the evidentiary hearing may not be expanded as requested by the Petitioner.
7
Petitioner's argument notwithstanding, that conclusion is in full accord with the terms of the mandate.
8
Petitioner's initial thrust is that our mandate dictated an evidentiary hearing, and the district court's failure to comply with that dictate deprived him of the relief we ordered. That position overlooks the predicate upon which the case was returned to the district court.
9
Our concern was that had petitioner's state appellate counsel presented to the Oklahoma Court of Criminal Appeals the full panoply of the prosecutor's egregious conduct, that court could have ordered a new trial--not on constitutional, but on state grounds. The correlative of that concern, of course, is that were the egregious conduct fully considered by the state court, federal habeas corpus would not lie. Thus, the respondent was entitled to a determination of whether there was factual support for our concern because a mistaken premise is not a basis for granting relief from a judgment.
10
Moreover, petitioner reads our remand in sections. He thus attaches too much significance to the clause in which we directed an evidentiary hearing. Taken in context, that clause tied the need for an evidentiary hearing to the "reasons why Petitioner's state appellate counsel did not raise the issue of prosecutorial misconduct in the state appeal." The import of that linkage is that if the reasons were proper, no hearing was necessary. The district court correctly perceived that state appellate counsel's having fully raised the issue is the functional equivalent of having a valid reason for not raising the issue.
11
To escape the inevitability of this conclusion, petitioner also argues that his offer of proof demonstrated his state appellate counsel was ineffective. He asserts that counsel presented the issue of prosecutorial misconduct in such a disjointed manner that his argument was lacking in persuasion. We have examined the state brief and agree that a much better job could have been done; indeed, the presentation is unskilled. Nonetheless, all the matters about which we were concerned were raised in the state court. If that court failed to conclude petitioner was entitled to a new trial as a result, we do not believe it was because his appellate counsel did not live up to the standard required by Strickland v. Washington, 466 U.S. 668 (1984).
12
To establish a Strickland denial of effective assistance of counsel, petitioner must prove that the conduct of counsel fell below an objective standard of reasonableness and the result of the proceeding would have been different. Tapia v. Tansy, 926 F.2d 1554 (10th Cir.1991). While petitioner's state appellate lawyer was lacking in writing skills, he did recognize and raise the proper issues demanded by the case. Therefore, an objective view of his conduct will not permit us to say he acted unreasonably. Moreover, while petitioner forcefully argues a more polished effort by state counsel would have provoked the Oklahoma Court of Criminal Appeals to reverse his conviction, we are uncertain. Nevertheless, having failed to show counsel's representational efforts were not unreasonable, petitioner's argument that the state court would have reversed the conviction is unavailing.
13
AFFIRMED.
*
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
1
We set aside one of his death sentences on the basis of a constitutionally infirm instruction under Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987). Robison v. Maynard, 829 F.2d 1501, 1509 (10th Cir.1987)
2
Because the state had argued we were barred from hearing the merits of the issue on the ground of procedural bypass, we assumed petitioner's state appellate counsel had not raised those prosecutorial misconduct issues before the Court of Criminal Appeals
3
The magistrate permitted petitioner to make an offer of proof, following which she reiterated her conclusion that this court was mistaken in assuming the issue of prosecutorial misconduct had not been raised on appeal. On the basis of this conclusion, she decided our mandate had been fulfilled
|
938 F.2d 185
Cobin (Emogene Williams)v.Castleberry
NO. 90-2276
United States Court of Appeals,Eighth Circuit.
APR 24, 1991
1
Appeal From: E.D.Ark.
2
AFFIRMED.
|
381 F.Supp.2d 129 (2003)
In re VIVENDI UNIVERSAL, S.A., SECURITIES LITIGATION
No. 02 Civ. 5571(HB).
United States District Court, S.D. New York.
May 6, 2003.
MEMORANDUM ORDER
BERMAN, District Judge.
Plaintiffs move for a partial lifting of the stay on discovery to obtain copies of documents already produced by defendants to the United States Department of Justice, Securities and Exchange Commission, Commission Des Operations de Bourse ("COB") and Association of Active Small Investors in France ("APPAC"), all produced in connection with civil and criminal investigations for misconduct by defendants, which forms a basis of the instant class action. The PSLRA provides:
In any private action arising under this chapter, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.
15 U.S.C. §§ 77z-1(b)(1) and 78u-4(b)(3)(B). Recognizing that "the cost of discovery often forces innocent parties to settle frivolous securities class actions," H.R. Conf. Rep. No. 104-369, at 37 (1995), Congress enacted the mandatory stay of discovery, in part, to prevent plaintiffs from filing such frivolous lawsuits and using it as a vehicle "in order to conduct discovery in the hopes of finding a sustainable *130 claim not alleged in the complaint." S.Rep. No. 104-98, at 14 (1995).
Plaintiffs contend that the partial lift on the stay of discovery is necessary because defendants are liquidating certain subsidiaries or affiliates of the Vivendi corporation, and there is a risk that documents may be lost with the transfer of control over portions of defendants' business. Pl. Reply Mem. at 2. "A party alleging that discovery is `necessary to preserve evidence' must ... make a specific showing that the `loss of evidence is imminent as opposed to merely speculative.'" Sarantakis v. Gruttadauria, 2002 WL 1803750, at *2 (N.D.Ill. Aug. 5, 2002) (internal citations omitted) (quoting In re CFS-Related Sec. Fraud Litig., 179 F.Supp.2d 1260, 1265 (N.D.Okla.2001)). Plaintiffs make no such showing and the defendants represent in open court that it will not happen. "[U]nless exceptional circumstances are present, discovery in securities actions is permitted only after the court has sustained the legal sufficiency of the complaint." Vacold LLC v. Cerami, 2001 WL 167704, at *6 (S.D.N.Y. Feb. 16, 2001). This Court has agreed to consider the legal sufficiency of the complaint at oral argument ten days from the date hereof and I find no "exceptional circumstances" that warrant lifting the stay at this time. As to any documents produced to any other agency or non-parties involved in litigation or investigation of defendants, the defendants have again made the representation that they have copies of all of the documents, including those seized, and that they must and will be preserved. Pursuant to this representation, I find that the loss or risk of loss of documents to be minimal.
Plaintiffs further contend that the stay is necessary to prevent undue prejudice to them. Although the Second Circuit has yet to make any pronouncement, district courts here and elsewhere have construed "undue prejudice" to mean "improper or unfair treatment amounting to something less than irreparable harm." Vacold, 2001 WL 167704, at *6; Med. Imaging Ctrs. of Am., Inc. v. Lichtenstein, 917 F.Supp. 717, 720 (S.D.Cal.1996). Courts in the Southern District have partially lifted the discovery stay on the ground of "undue prejudice" when defendants would be unfairly shielded from liability through pursuit of their pending action or when plaintiffs would be placed at an unfair advantage to make informed decisions about litigation and settlement strategy without access to documents that form the core of the proceeding. In re WorldCom, Inc. Sec. Litig., 234 F.Supp.2d 301, 306 (S.D.N.Y.2002)(noting that plaintiff faced "the very real risk that it [would] be left to pursue its action against defendants who no longer have anything or at least as much to offer" in light of the settlement discussion that was scheduled to begin shortly with the ERISA plaintiffs in another proceeding); Vacold, 2001 WL 167704, at * 7 (finding no evidence that plaintiff's particularly narrow discovery request was sought to support a claim not alleged in the complaint); Global Intellicom, Inc. v. Thomson Kernaghan & Co., 1999 WL 223158, at *2 (S.D.N.Y. April 16, 1999) (finding that plaintiff had made a showing of "undue prejudice" because the stay might prevent plaintiff from seeking redress for the alleged violations). Here, plaintiffs do not seek the particularized degree of discovery that the Court granted in Vacold. Further, although I respect the representation of plaintiffs to the contrary, I cannot yet conclude that evidence from discovery might not be the subject of controversy as to a claim in the complaint if leave to replead were granted. Moreover, I find no evidence that plaintiffs face the same prospect, as in WorldCom or Global Intellicom, that they would be left without *131 remedy in light of settlement discussions or other intervening events, such as bankruptcy or attempt to take control over plaintiff by acquisition. Accordingly, I find that plaintiffs have not met their burden of showing "exceptional circumstances" that render it necessary to lift the stay on discovery here. See In re Trump Hotel Shareholder Derivative Litigation, 1997 WL 442135, at *2 (S.D.N.Y. Aug. 5, 1997) ("the possibility that prejudice will result from a stay is particularly remote in this case because the only discovery currently sought is the production of documents"). Plaintiffs' motion to lift the stay on discovery is DENIED.
SO ORDERED.
|
113 U.S. 135 (1885)
ACKLEY SCHOOL DISTRICT
v.
HALL.
Supreme Court of United States.
Argued December 2, 3, 1884.
Decided January 19, 1885.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF IOWA.
*137 Mr. Galusha Parsons (Mr. John F. Duncombe was with him) for plaintiff in error.
Mr. C.C. Nourse and Mr. B.F. Kauffman for defendant in error.
*138 MR. JUSTICE HARLAN delivered the opinion of the court. He recited the facts as above stated, and continued:
The jurisdiction of the court below is questioned upon the ground that the bonds in suit are not promissory notes negotiable by the law merchant, within the meaning of the first section of the act of March 3, 1875, determining the jurisdiction of the Circuit Courts of the United States; and, consequently, that the court could not take cognizance of the case unless it appeared, affirmatively, that a suit could have been brought thereon by the original payees, Foster Brothers, had they not *139 parted with the bonds. In this proposition we do not concur. The recital, on their face, that they were issued on the authority of a popular election, held in conformity with a local statute, does not take from them the qualities and incidents of commercial securities. Indeed, the statute evidently contemplated that the bonds issued under its provisions should be negotiable instruments that would do the work of money in financial circles. They are described as "negotiable bonds," to be used for the purpose of borrowing money to be applied in the erection and completion of school-houses for the district. Its treasurer was directed to negotiate them at not less than their par value, and purchasers were assured by the statute that the indebtedness so incurred "shall be binding and obligatory on the independent school district, for the use of which said loan shall have been made." And this special enactment is in accord with the general law of Iowa; for, by the code of that State, "notes in writing, made and signed by any person, promising to pay to another person or his order or bearer, or to bearer only, any sum of money, are negotiable by indorsement or delivery in the same manner as inland bills of exchange, according to the custom of merchants;" while the transfer of "bonds, bills, and all instruments in writing, by which the maker promises to pay to another, without words of negotiability, a sum of money," is declared to be subject to any defence or counterclaim which the maker or debtor had against any assignor thereof before notice of assignment; thus, showing that, equally in respect of negotiable promissory notes and negotiable bonds, the rights of the parties are determinable by the law merchant. Iowa Code of 1873, §§ 2082, 2083, 2084.
These instruments, although described in the Iowa statute as bonds, have every characteristic of negotiable promissory notes. They are promises in writing to pay, at all events, a fixed sum of money, at a designated time therein limited, to named persons or their order. Upon being indorsed in blank by the original payees, the title passes by mere delivery, precisely as it would had they been made payable to a named person or bearer. After such indorsement, the obligation to *140 pay is to the holder. The decisions of this court are numerous to the effect that municipal bonds, in the customary form, payable to bearer, are commercial securities, possessing the same qualities and incidents that belong to what are, strictly, promissory notes negotiable by the law merchant. There is no reason why such bonds, issued under the authority of law, and made payable to a named person, or order, should not, after being indorsed in blank, be treated by the courts as having like qualities and incidents. That they are so regarded by the commercial world cannot be doubted. Manufacturing Co. v. Bradley, 106 U.S. 180.
But it is contended that the word "negotiable," in the Iowa statute, is qualified by that clause, in the same enactment, which provides that bonds issued under it shall be "payable at the pleasure of the district at any time before due." These words were not incorporated into the bond. But if the holder took, subject to that provision, as we think he did, it is clear that this option of the district to discharge the debt, in advance of its maturity, did not affect the complete negotiability of the bonds; for by their terms, they were payable at a time which must certainly arrive; the holder could not exact payment before the day fixed in the bonds; the debtor incurred no legal liability for non-payment until that day passed. The authorities bearing upon this question are cited in Byles on Bills, Sharswood's Ed., chap. 7; 1 Daniel Negotiable Instruments, § 43, et seq.; Chitty on Bills, 525, et seq.
In School District v. Stone, 106 U.S. 183, it was held, in reference to similar bonds issued by another independent school district, in the same county, that their recitals were not sufficiently comprehensive to cut off a defence resting upon the ground that the bonds there in suit were in excess of the amount limited by the State Constitution, and consequently invalid. Applying that decision to the present case, counsel for the district insist that, as these bonds may be open to such a defence as was made in School District v. Stone, they cannot be deemed negotiable by the law merchant; in other words, that the negotiability of the instrument ceases, whenever the maker is permitted, as against a bona fide holder for value, to establish a *141 defence based upon equities between the original parties. But such is not the test prescribed by the statute defining the jurisdiction of the Circuit Courts of the United States. If a promissory note is expressed in words of negotiability, the right of the holder of the legal title to invoke the jurisdiction of the proper Circuit Court of the United States is not affected by the citizenship of any prior holder, or by the circumstance that the party sued asserts, or is able to make out, a valid defence to the action.
The assignments of error present another question that deserves consideration. The Constitution of Iowa provides that "every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." The title of the statute under which those bonds were issued is "An Act to authorize independent school districts to borrow money and issue bonds therefor, for the purpose of erecting and completing school-houses, legalizing bonds heretofore issued, and making school orders draw six per cent. interest in certain cases." The act contains six sections, the fourth providing that "all school orders shall draw six per cent. interest after having been presented to the treasurer of the district, and not paid for want of funds, which fact shall be indorsed upon the order by the treasurer." As there are two kinds of school districts in Iowa, "district township" and "independent district," the latter carved out of the former it is contended that the title to the act in question embraces two subjects; one, relating to matters in which independent school districts alone are concerned; and the other, to matters in which the township district and independent districts are concerned; that whether school orders, which may be issued for many purposes, by districts of either kind, should bear interest or not is wholly foreign to the borrowing of money to build school-houses in independent districts. Iowa Code of 1873, ch. 9, title 12.
We are not referred to any adjudication by the Supreme Court of Iowa which sustains the point here made. On the *142 contrary, the principles announced in State v. The County Judge, 2 Iowa, 281, show that the act before us is not liable to the objection that its title embraces more than one subject. The object of the constitutional provision, that court said, was "to prevent the union in the same act of incongruous matter, and of objects having no connection, no relation," and "to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another;" but, that, "it cannot be held with reason that each thought or step towards the accomplishment of an end or object should be embodied in a separate act;" that "the unity of object is to be looked for in the ultimate end, and not in the details or steps leading to the end;" and that "so long as they are of the same nature, and come legitimately under one general denomination or object," the act is constitutional. The doctrines of that case have been approved by the same court in subsequent decisions, and they are decisive against the point here raised. Morford v. Unger, 8 Iowa, 83; Davis v. Woolnough, 9 Iowa, 104; McAunich v. The Mississippi & Missouri Railroad Co., 20 Iowa, 342; Farmer's Ins. Co. v. Highsmith, 44 Iowa, 334. The general subject to which this special act relates is the system of common schools. That system is maintained through the instrumentality of district schools of different kinds. Provisions in respect of those instrumentalities those referring to the erection and completion of school-houses in independent school districts with money raised upon negotiable bonds, and others, to the rate of interest which all school orders shall bear relate to the same general object, and are only steps towards its accomplishment. See also Montclair v. Ramsdell, 107 U.S. 153, where this subject was considered.
Other questions have been discussed by the counsel, but as they are not deemed important in the determination of the case they will not be specially noticed.
Judgment affirmed.
|
144 Cal.App.2d 597 (1956)
Estate of CHARLES F. HERRESHOFF, Deceased. VIRGINIA T. HERRESHOFF, Appellant,
v.
WILLIAM STUART HERRESHOFF et al., Respondents.
Civ. No. 5429.
California Court of Appeals. Fourth Dist.
Sept. 24, 1956.
Sloane & Fisher for Appellant.
No appearance for Respondents.
MUSSELL, J.
Charles F. Herreshoff died testate in San Diego County on January 31, 1954. His will provided for the distribution of income and principal of his trust estate in the following language:
"FOURTH: After the payment of all debts, expenses of administration, commissions, attorneys' fees, court costs and taxes, including State, County, Inheritance, Succession and *598 Federal Estate, if any, I direct that my entire estate be distributed and I hereby give, devise and bequeath my said estate, real and personal, wheresoever situated, including all failed and lapsed gifts, hereinafter termed "the trust Estate" to San Diego Trust & Savings Bank of San Diego, California, a California Banking Corporation, Virginia T. Herreshoff, and James Brown Herreshoff and Lillian Stuart Herreshoff or the survivor or survivors of them, In Trust Nevertheless, to hold, manage and distribute as follows:"
"A. Distribution of Income and Principal."
"(1) One-half of the net income shall be distributed in monthly or other convenient installments, to or for the benefit of my intended wife, Virginia T. Herreshoff, for and during her lifetime, or for so long as she remains my widow."
"(2) One-half of the net income shall be distributed in monthly or other convenient installments in equal shares to my brothers, James Brown Herreshoff and William Stuart Herreshoff, or to the survivor of them, for and during the lifetime of each of my said brothers."
"(3) Upon the death of the last survivor of my said brothers, I direct that the one-half of the net income received by them during their lifetime shall thereafter be paid to my sisters, Jeannette Brown and Anna Francis, in equal shares, should they be then living, or to the survivor of them, and if neither of my said sisters be then living, that said income be thereafter paid to my said intended wife, Virginia T. Herreshoff, for and during her life."
"(4) Upon the death or remarriage of my intended wife, Virginia T. Herreshoff, the Trustees shall distribute the income from the trust estate to which she was theretofore entitled, to my brothers herein named, in equal shares, if they be then living, or to the survivor of them if one only be living. And in the event that at the time of the death or remarriage of my said intended wife, Virginia T. Herreshoff, neither of my brothers be then living, and my sisters Jeanette Brown and Anna Francis, or either of them be then living, I then direct said Trustees to distribute the income to be distributed to my intended wife, Virginia T. Herreshoff until her death or remarriage, to my said two sisters share and share alike or to the survivor of them."
The trial judge in his decree construing the will and of final distribution, in effect, added the words "provided she does not remarry" to paragraph A(3) above quoted. The language used by the court appears on page four of the *599 decree, page 14 of the clerk's transcript, where the court, in providing for the distribution of the one-half of the net income as provided in the fourth provision of the will A(2), provides as follows:
"During the continuance of the trust the trustees or trustee shall distribute the other one-half of the net income of the trust in monthly or other convenient installments to William Stuart Herreshoff, brother of the decedent, for and during his lifetime; upon the death of the said William Stuart Herreshoff, the trustees or trustee shall distribute said one-half of the net income of the trust in monthly or other convenient installments to Jeanette Brown Herreshoff and Anna Francis Herreshoff, sisters of the said Charles F. Herreshoff, in equal shares, if they be then living, or to the survivor of them, should either have died, and if neither of said sisters be then living, then the trustees or trustee shall distribute said one-half of the net income of the trust in monthly or other convenient installments to Virginia T. Herreshoff so long as she lives, provided however she shall not receive any of such income in the event she shall have remarried, and distribution of income to her shall cease and terminate forthwith in the event she shall remarry after she has received any such one-half of such income. (Italics ours.)"
[1] Virginia T. Herreshoff appeals from the above italicized portion of the decree. No brief is filed on behalf of the respondent. Appellant contends that she has the right to receive one-half of the income from the trust estate after the death of the testator's brothers and sisters, even though she may have remarried by that time. We are in accord with this contention. The testator, in providing for the one-half of the income to be paid to appellant under paragraph Fourth A(1) of the will, provided for the payment of the said one-half of the income to appellant as long as she remained a widow and in the event of her death or remarriage, the income would be distributed to his two sisters (paragraph A(4)). However, in providing for the payment of the other one-half of the income to his brothers, he provides in paragraph A(3) that upon the death of the last survivor of them the income would be distributed to the sisters, if living, and if not, to Virginia T. Herreshoff for and during her life. The language used is clear and unambiguous.
[2] The objective in the interpretation of a will is to ascertain the intention of the testator as disclosed by the language he has used in his will. (Estate of Brunet, 34 Cal.2d *600 105, 107 [207 P.2d 567, 11 A.L.R.2d 1382].) [3] It is well settled that it is not what a testator wanted to do but what he actually did, as expressed in the words used, which governs in the absence of other evidence with respect to his intention. (Gardner v. Snow, 119 Cal.App.2d 546, 549 [259 P.2d 95].) [4] A court may not, under the guise of construction, make a will for a testator to take the place of the one made by him if its intent is plain. (Estate of Beldon, 11 Cal.2d 108, 112 [77 P.2d 1052]; Estate of Soulie, 72 Cal.App.2d 332, 335 [164 P.2d 565].)
The testator herein clearly provided in said paragraph A(3) for the payment of income to his brothers during their lifetime and thereafter to his sisters, if living. If not, said income was to be paid to his intended wife, the appellant herein, for and during her life. By adding the italicized provisions to this paragraph providing that appellant should not receive this income in the event that she should have remarried, the court added a condition not stated in the will and contrary to the plain intent of the testator. The decree is therefore modified by deleting therefrom the following language, appearing on page 14 of the clerk's transcript, lines 29 to 32: "provided, however, she shall not receive any of such income in the event she shall have remarried, and distribution of income to her shall cease and terminate forthwith in the event she shall remarry after she has received any such one-half of such income." As so modified, the decree is affirmed. Appellant to recover costs.
Griffin, Acting P. J., and Burch, J. pro tem., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
|
Case: 15-30182 Document: 00513249899 Page: 1 Date Filed: 10/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30182 United States Court of Appeals
Fifth Circuit
FILED
October 28, 2015
Lyle W. Cayce
CAROL J. VINCENT, Clerk
Plaintiff–Appellee,
versus
CITY OF SULPHUR; LEWIS COATS;
CHESTER GREMILLION; GLENN MARTIN,
Defendants–Appellants.
Appeal from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
After an altercation at a bank during which Carol Vincent allegedly
threatened violence against the mayor of Sulphur, Louisiana, and a city council
member, police issued an “Official Notification of Trespass Warning” prohib-
iting Vincent from entering city-owned property, including City Hall. After the
district attorney determined that the allegations did not support prosecution,
Case: 15-30182 Document: 00513249899 Page: 2 Date Filed: 10/28/2015
No. 15-30182
police lifted the order. Claiming civil-rights violations, Vincent sued Sulphur
Police Chief Lewis Coats, Officers Chester Gremillion and Glenn Martin, and
the city under 42 U.S.C. § 1983.
Defendants moved for summary judgment on all claims, asserting quali-
fied immunity. The district court held that the officers were entitled to quali-
fied immunity as to the majority of Vincent’s claims. The court denied qualified
immunity, however, on Vincent’s procedural-due-process and direct-
municipal-liability claims, concluding that issuance of the no-trespass order
without notice and an opportunity to be heard violated Mathews v. Eldridge,
424 U.S. 319 (1976), and its progeny and that the pertinent law was clearly
established at the time of the incident. Defendants appeal the denial of quali-
fied immunity. Because we agree with them that the law was not clearly estab-
lished, we reverse and remand.
I.
On August 7, 2012, Vincent went to a bank to discuss a financial matter
on a friend’s behalf. The meeting became acrimonious, and Vincent left. Later
that day, the Sulphur Police Department received information that, in the
course of the argument, Vincent had threatened to get a gun and kill Mayor
Christopher Duncan and City Councilman Mike Koonce. Because that alleged
incident occurred outside the city limits, the information was referred to the
sheriff’s department for investigation. The next day, a sheriff’s detective called
Vincent and requested that he come to the station for questioning; Vincent
complied. The detective interrogated him and specifically asked whether Vin-
cent had threatened to kill the two city officials, which Vincent denied.
Two days later, Gremillion pulled Vincent’s car over, explaining that he
was being stopped to inform him that a no-trespass order had been issued and
that he was prohibited from entering onto certain city property. Vincent
2
Case: 15-30182 Document: 00513249899 Page: 3 Date Filed: 10/28/2015
No. 15-30182
specifically indicated that the ban, as he understood it, encompassed “‘city
hall,’ ‘old city hall,’ ‘city council chambers/building,’ ‘city of sulphur city council
meetings,’ ‘city of Sulphur police station,’ ‘city of sulphur court house,’ ‘city of
Sulphur business center across from the new city hall,’ ‘West Calcasieu busi-
ness center,’ and ‘ward 4 marshal’s office’” but excluded “public thoroughfares
and right-of-ways.”
In early September, Vincent wrote Coats inquiring why the no-trespass
order had been issued. Coats tried to respond by phone but did not reach Vin-
cent and left a message. Vincent did not call back but on September 27
requested a written answer from Coats, who responded on October 4, indi-
cating that the order was to prevent Vincent from coming into contact with the
two individuals that he had allegedly threatened. Vincent answered by letter
of October 11 requesting a meeting at a “neutral” location (so as not to violate
the order by entering the police station).
At about the same time, Coats followed up with the district attorney’s
office regarding its investigation of the August 7 incident. That office indicated
in response that it had not found sufficient evidence to prosecute. After consul-
tation with the mayor, Coats decided to terminate the no-trespass order and
notified Vincent of that by letter on October 16.
II.
Vincent sued pro se, alleging violations of his rights under the Privileges
and Immunities Clause of Article IV and the First, Fourth, and Fourteenth
Amendments. Defendants moved for summary judgment, asserting qualified
immunity. The district court addressed the motion for summary judgment in
two stages—in an initial ruling, it granted the motion on the substantive-due-
process, equal-protection, Fourth Amendment, and right-to-travel claims and
3
Case: 15-30182 Document: 00513249899 Page: 4 Date Filed: 10/28/2015
No. 15-30182
denied summary judgment as to Vincent’s procedural-due-process claims, 1
identifying what it deemed to be clearly established law prohibiting state offi-
cials from banning individuals from public areas without notice and an oppor-
tunity to be heard. The court also stayed the First Amendment claims for addi-
tional briefing. In a later ruling, it disposed of the remaining summary judg-
ment issue, granting qualified immunity on the First Amendment claims.
After the court had finally disposed of all issues arising from the motion
for summary judgment, defendants filed what they styled a second motion for
summary judgment on the procedural-due-process issue, contending that the
individual defendants were entitled to qualified immunity and that the claims
against the city were barred by that immunity. Treating that as a motion to
reconsider, the court rejected both arguments; the defendants appealed.
III.
A.
We have jurisdiction over this denial of qualified immunity because such
an order is immediately appealable to the extent that the appeal turns on an
issue of law. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
Vincent suggests that we lack jurisdiction because the individual officers’
qualified-immunity argument was initially rejected, as to the due-process
claims, in the district court’s May 15, 2014, Order and Memorandum Ruling,
and the officers did not appeal until February 27, 2015—more than the thirty
days allotted under Rule 4 of the Federal Rules of Appellate Procedure. Vin-
cent reasons that the appeal is thus untimely. But the May 15 order ruled only
on certain summary judgment items; it stayed final disposition of other issues
1 The district court denied summary judgment on the procedural-due-process claims
against the individual defendants and against the city. This appeal, however, is only on
behalf of the officers.
4
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No. 15-30182
to receive additional briefing. The court did not finally determine qualified
immunity until October 21, 2014, when it resolved the remaining immunity
issues and ordered that the matter proceed to trial on the claims as to which
qualified immunity had been denied. On November 4, 2014, the officers filed
a renewed motion urging summary judgment on the procedural-due-process
issues; on January 29, 2015, the court, treating the motion as one for reconsid-
eration, denied it.
The appeal is therefore timely. The May 15 order was interlocutory,
because it did not dispose of all pending qualified-immunity issues presented
in the motion for summary judgment but rather stayed final resolution of the
motion for further briefing. The denial of summary judgment on qualified-
immunity grounds did not become final until the October 21 order, which dis-
posed of the pending qualified-immunity issue; that was the point at which the
court conclusively determined the officers’ entitlement vel non to immunity
and sent the case to trial. Therefore, that is the date from which the relevant
time to take an appeal should be calculated. The November 4 motion urging
the court to revisit the procedural-due-process claims was timely under the
28-day limit of Federal Rule of Civil Procedure 59(e) 2 and was sufficient to toll
the 30-day clock for an appeal from the October 21 order. 3 The officers filed a
notice of appeal within 30 days of the denial of the second motion, rendering
this appeal timely. See FED. R. APP. P. 4(a)(1)(A).
B.
The plaintiff has the burden of demonstrating that the defendant official
2See Mangieri v. Clifton, 29 F.3d 1012, 1015 (5th Cir. 1994) (treating a motion for
reconsideration of a denial of qualified immunity as a Rule 59(e) motion for timeliness
purposes).
3 See Charles L.M. v. Ne. Indep. Sch. Dist., 884 F.2d 869, 869 (5th Cir. 1989) (holding
that a timely filed Rule 59(e) motion tolls the time for an appeal).
5
Case: 15-30182 Document: 00513249899 Page: 6 Date Filed: 10/28/2015
No. 15-30182
is not entitled to qualified immunity. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th
Cir. 2013). Qualified immunity protects “government officials performing dis-
cretionary functions . . . from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). This demands a two-step analysis: whether a constitutional right
was violated and whether the allegedly violated right was “clearly established.”
McClendon v. City of Columbia, 305 F.3d 314, 322–23 (5th Cir. 2002) (en banc)
(per curiam). This court has discretion to perform either prong first.
To defeat qualified immunity, the plaintiff must show that the official’s
conduct was objectively unreasonable in light of a clearly established rule of
law. See id. at 323. This is a demanding standard: Because qualified immunity
protects “all but the plainly incompetent or those who knowingly violate the
law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), we do not deny its protection
unless existing precedent places the constitutional question “beyond debate,”
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)). The court must “ask whether
the law so clearly and unambiguously prohibited [the official’s] conduct that
every reasonable official would understand that what he is doing violates [the
law].” Id. (citing al-Kidd, 131 S. Ct. at 2083) (second alteration in original).
Although a case directly on point is not necessary, there must be ade-
quate authority at a sufficiently high level of specificity to put a reasonable
official on notice that his conduct is definitively unlawful. See id. at 372.
Abstract or general statements of legal principle untethered to analogous or
near-analogous facts are not sufficient to establish a right “clearly” in a given
context; rather, the inquiry must focus on whether a right is clearly established
as to the specific facts of the case. See Brosseau v. Haugen, 543 U.S. 194, 198
6
Case: 15-30182 Document: 00513249899 Page: 7 Date Filed: 10/28/2015
No. 15-30182
(2004). Therefore, we must decide whether the cases cited by the district court
place beyond reasonable debate the proposition that a person under criminal
investigation for threatening to kill city officials has a procedural-due-process
right under Eldridge to receive notice and an opportunity to be heard before a
ban on entering city buildings goes into effect.
IV.
The district court found that, on the facts as viewed most favorably to
Vincent, Vincent’s procedural-due-process rights were violated when the offi-
cers issued the no-trespass warning without providing him with notice and an
opportunity to be heard. The court reasoned that the no-trespass order vio-
lated Vincent’s constitutionally protected right to go to or remain in public
places of his choosing and was issued without process sufficient to satisfy Eld-
ridge’s familiar three-factor balancing test. 4 It then determined, on a review
of the cases discussing the liberty interest in being free to move about in public,
that the right Vincent asserted was clearly established. Specifically, the court
relied on City of Chicago v. Morales, 527 U.S. 41 (1999); Papachristou v. City
of Jacksonville, 405 U.S. 156 (1972); Shuttlesworth v. City of Birmingham, 382
U.S. 87 (1965); Kent v. Dulles, 357 U.S. 116 (1958); Williams v. Fears, 179 U.S.
270 (1900); Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011);
and Anthony v. State, 209 S.W.3d 296 (Tex. App.―Texarkana 2006, no pet.), for
the proposition that policies giving unbridled discretion to police officers to
issue trespass warnings to those in public parks, on sidewalks, and the like
violate procedural-due-process rights. Finally, the district court cited Kennedy
4 Under Eldridge, the court is to balance “(1) the private interest that will be affected
by the official’s actions, (2) the risk of an erroneous deprivation of that private interest and
the probable value, if any, that additional procedural protections would provide, and (3) the
interest that the government seeks to achieve.” Sys. Contrs. Corp. v. Orleans Parish Sch.
Bd., 148 F.3d 571, 575 (5th Cir. 1998) (citing Eldridge, 424 U.S. at 335).
7
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No. 15-30182
v. City of Cincinnati, 595 F.3d 327 (6th Cir. 2010), which held specifically that
an individual’s right lawfully to remain in a public place was clearly estab-
lished for purposes of qualified immunity. Id. at 337–38 (relying on Fears,
Papachristou, Kent, and Morales).
The cited cases, however, do not reflect clearly established law in this
circuit under these facts. 5 Although the Supreme Court decisions amply sup-
port the proposition that there is a general right to go to or remain on public
property for lawful purposes, none comes near the level of specificity needed to
put “beyond debate” the related but distinct proposition that a person under
investigation for threatening deadly violence against city officials has a right
to notice and a hearing before being banned from entering city buildings. 6
None of the Supreme Court cases mirrors the facts or the district court’s legal
reasoning—in fact, none of them addresses an Eldridge-type procedural-due-
process claim at all.
The cases from the Sixth and Eleventh Circuits and the Texas interme-
diate court come somewhat closer—they at least address procedural-due-
process claims in the context of the right to enter or remain on government
property. But two out-of-circuit cases and a state-court intermediate appellate
decision hardly constitute persuasive authority adequate to qualify as clearly
5 Because the purported procedural-due-process right at issue was not clearly estab-
lished, we need not reach the question whether such a right was violated.
6 In his brief, Vincent claims he did not in fact make the threats and, further, that the
police did not have credible evidence that he made them. But Coats’s affidavit states—and
Vincent does not dispute—that the police department did in fact receive information that
Vincent had made the threat. Coats additionally states the undisputed fact that the police
department referred the matter to the sheriff’s department, which, in conjunction with the
district attorney’s office, did not resolve the matter until sometime after October 11. The
officers have therefore established that their actions did occur in the context of an ongoing
investigation into Vincent’s conduct. On a motion for summary judgment, Vincent’s asser-
tions to the contrary are not sufficient.
8
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No. 15-30182
established law sufficient to defeat qualified immunity in this circuit. A review
of the decisions on which the district court relied demonstrates their insuffi-
ciency for a “clearly established” finding.
We begin with the Supreme Court cases, because to the extent any of
those is on point, the officers were fairly on notice under controlling authority.
The district court relied heavily on Morales, which it characterized as holding
that a local anti-loitering ordinance violated the Due Process Clause. That
description of the holding is generally correct. But the Court did not find a
Due Process Clause violation under the Eldridge procedural-due-process
doctrine—indeed, the decision does not cite Eldridge or seek to determine
whether notice and an opportunity to be heard were due before anti-loitering
orders issued.
Morales instead turned on the determination that the ordinance was
unconstitutionally vague because it violated the requirement that criminal
statutes provide minimum guidelines for enforcement. Id. at 60. That is not
the sort of procedural-due-process claim that is made here, where the issue is
whether Vincent was entitled to notice and an opportunity to be heard; Morales
has nothing to say to that question. The district court also excerpted a lengthy
quotation to the effect that “the freedom to loiter for innocent purposes is part
of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amend-
ment.” Id. at 53 (plurality opinion). But the section of the opinion from which
that language is drawn commanded only three votes, and the court was not
performing a due-process analysis but rather an overbreadth inquiry when it
asserted the existence of that right. See Hannemann v. S. Door Cnty. Sch.
Dist., 673 F.3d 746, 757 (7th Cir. 2012). And indeed, in discussing a
procedural-due-process claim regarding a right to enter onto public property,
the Seventh Circuit sharply distinguished this language in Morales on that
9
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No. 15-30182
basis and noted that even to the extent the citation at issue would support
“some liberty interest in the right to loiter, it would not follow that this right
confers unfettered access to all public places.” Id. The Seventh Circuit’s obser-
vation is a strong indication that the language in Morales on which the district
court depended cannot serve as notice to a reasonable officer that there was a
clearly established procedural-due-process right in this context.
The district court’s citations to Papachristou and Shuttlesworth are simi-
larly unpersuasive as to the existence of a clearly established procedural-due-
process right to notice and a hearing. Papachristou found an anti-vagrancy
ordinance unconstitutionally vague. Papachristou, 405 U.S. at 162. Shuttles-
worth, 382 U.S. at 90–91, similarly struck down as impermissibly vague an
anti-loitering ordinance. Neither of those vagueness decisions purports to
address the procedural-due-process right to notice and a hearing.
Nor does Morales, Papachristou, or Shuttlesworth bear sufficient factual
similarity to the conduct here to serve as evidence of a clearly established rule.
None involved similar facts: a no-trespass warning covering city administra-
tive buildings issued as a prophylactic security measure for the duration of a
live investigation of alleged threats on the lives of city officials. In Papa-
christou, the various individual defendants appear to have been arrested fol-
lowing chance encounters with the police, before which they had been going
about their business as usual. Shuttlesworth involved the arrest of an indi-
vidual for standing peacefully on a city sidewalk after an officer instructed him
to move along. And although Morales does not even recite the facts giving rise
to the litigation there, the challenged ordinance gave officers essentially
unfettered discretion to order any group of individuals to disperse if a single
member of the group was, to the officer’s knowledge, a gang member.
The other two Supreme Court cases that the district court cited—Kent
10
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No. 15-30182
and Williams—are even further afield. Kent concerned the State Department’s
denial of passports to two persons for being communists. The Court did not,
however, reach any constitutional question, because it resolved the matter by
finding that the Secretary of State was not authorized by statute to deny pass-
ports on the basis of political affiliation. Kent, 357 U.S. at 129–30. And Wil-
liams concerned the validity of a state occupational tax levied on individuals
who served as agents to hire laborers in one state to work in another. Williams,
179 U.S. at 274. It is true that, like Morales, both decisions include strong
language in favor of a generalized right to go about as one pleases in the pur-
suit of one’s lawful business. But neither is addressed to facts remotely similar
to those here, and therefore they cannot be said to put a reasonable officer on
fair warning that his conduct was unlawful under the instant facts.
The district court also relied on three out-of-jurisdiction lower-court
decisions to support its conclusion that the procedural-due-process right was
clearly established. Unlike the Supreme Court cases cited above, those three
cases—two from our sister circuits and one from an intermediate Texas state
court—do deal specifically with procedural due process in the context of the
right to go about lawfully in public areas. And Kennedy, 595 F.3d at 337–38,
even goes so far as to find that a procedural-due-process right in this context
is clearly established. But those decisions, taken together, cannot support a
finding of a clearly established right here.
First, two cases from other circuits and one from a staye intermediate
court do not, generally speaking, constitute persuasive authority defining the
asserted right at the high degree of particularity that is necessary for a rule to
be clearly established despite a lack of controlling authority. In any event,
those three cases address matters that are sufficiently legally or factually dis-
tinguishable as to make a finding of clearly established law improper.
11
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No. 15-30182
The district court relied most heavily on Kennedy, which concerned a no-
trespass order issued to an individual suspected of engaging in inappropriate
“child-watching” at a public pool. The pool manager called police, who ques-
tioned the person for fifteen minutes before they determined that there was no
basis for reasonable suspicion to continue questioning or to believe that a crime
had been or would be committed. Nonetheless, at the manager’s request, the
officer issued a no-trespass order prohibiting the individual from entering onto
any property owned by the Cincinnati Recreation Commission. That person
sued, and the Sixth Circuit held that the defendant officer was not entitled to
qualified immunity on a procedural-due-process claim alleging a deprivation
of the liberty interest in entering onto public property. Id. 335–38. The court
determined that, on the basis of the Supreme Court decisions discussed above,
there was a clearly established liberty interest in going to and remaining in
public places and that the officer’s actions in “depriving him of [that] interest,
without procedural due process, constituted a violation of a clearly established
constitutional right.” Id. at 338.
For two reasons, Kennedy is not incompatible with qualified immunity
in the instant case. First, Kennedy is factually distinguishable: It was undis-
puted that when the officer issued the no-trespass warning, he had already
concluded that there was no basis for reasonable suspicion that the individual
had committed or would commit a crime. Not so here, where the no-trespass
order was issued at the outset and terminated at the close of an investigation
of Vincent’s alleged threats of deadly violence.
Second, Kennedy does not reach the critical question for an Eldridge
procedural-due-process claim. The Kennedy court instead determined only
that the liberty interest itself was clearly established and then asserted that a
deprivation of that liberty interest “without procedural due process” was a
12
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No. 15-30182
violation of a clearly established constitutional right. Id. at 337–38. But that
is tautological: It is necessarily unconstitutional to deprive an individual of a
recognized liberty interest “without procedural due process.” The Kennedy
court never asked the question that such a statement begs, which is what pro-
cedure was due. More specifically, it never considered whether the Eldridge
balancing test dictated that the person was entitled to notice and a hearing
before he was deprived of his liberty interest in entry into public recreational
facilities.
The district court’s brief references to Catron and Anthony are similarly
unavailing. Though both conducted the full Eldridge balancing test in deciding
that issuing a no-trespass order without notice and a hearing was unconstitu-
tional, see Catron, 658 F.3d at 1266–69; Anthony, 209 S.W.3d at 306–08, both
are distinguishable.
Catron involved no-trespass warnings prohibiting homeless individuals
from entering onto public parks and similar property; it therefore addressed a
dramatically different set of asserted state interests in the Eldridge due-
process balancing test. See Catron, 658 F.3d at 1264, 1267. The defendant in
Anthony (a criminal case in which the procedural-due-process argument was
raised as a defense) was arrested for violating a criminal-trespass warning that
had issued in the immediate wake of a minor verbal altercation. See Anthony,
209 S.W.3d at 302. Neither case involved the sort of government security
interests at issue here, nor were the individuals who sued or defended on the
ground that the no-trespass warning was unlawful the subject of specific,
individualized suspicion of future violence directed at identifiable persons
when the warning was issued. Therefore, it is untenable to read these decisions
as clearly establishing, such that any reasonable officer would be aware, the
entitlement of a person in Vincent’s position to notice and a hearing before
13
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No. 15-30182
issuance of a no-trespass order designed to keep him from coming into contact
with the targets of alleged threats.
V.
In summary, as we have explained, the alleged constitutional right was
not clearly established, so the officers are entitled to qualified immunity. We
need not reach the question whether the officers in fact committed a
procedural-due-process violation. We therefore REVERSE the order denying
summary judgment and REMAND for further proceedings as needed.
14
|
47 So.3d 913 (2010)
Javier Dejesus VENTURA, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D05-872.
District Court of Appeal of Florida, Third District.
November 3, 2010.
Rehearing Denied November 24, 2010.
*914 Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, for appellee.
Before RAMIREZ, C.J., and SHEPHERD and CORTIÑAS, JJ.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
RAMIREZ, C.J.
We reconsider on remand our opinion in Ventura v. State, 973 So.2d 634 (Fla. 3d DCA 2008), which the Florida Supreme Court quashed in part and affirmed in part following its decision in Ventura v. State, 29 So.3d 1086 (Fla.2010). As the Florida Supreme Court ordered, we reconsider our earlier decision in light of State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We determined in our prior opinion that Detective Teppenberg had improperly commented on defendant's right to silence, but held that the error was harmless under DiGuilio. We concluded that it was harmless because of the overwhelming evidence of Ventura's guilt. The Florida Supreme Court quashed the decision, in part, stating that the proper test is whether there is any reasonable possibility that the error contributed to the conviction. The Court quoted the following DiGuilio language:
The test is not ... an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state.
Id. at 1139.
Applying this standard, we cannot confirm that the detective's comments, twice repeated, did not affect the verdict. Accordingly, we reverse Ventura's convictions.
Reversed and remanded for a new trial.
|
226 F.3d 915 (7th Cir. 2000)
Jennifer Dormeyer, Plaintiff-Appellant,v.Comerica Bank-Illinois, et al., Defendants-Appellees.
Nos. 99-1089 and 99-3252
In the United States Court of Appeals For the Seventh Circuit
Submitted August 7, 2000Decided August 30, 2000
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 4805--David H. Coar, Judge.
Before Posner, Manion, and Kanne, Circuit Judges.
Per Curiam.
1
In our opinion of July 24, 2000, affirming the district court's decision, we ordered the plaintiff-appellant's counsel, Ernest T. Rossiello, to show cause why he should not be sanctioned for having taken a frivolous appeal (Fed. R. App. P. 38) from the district court's order cutting down the attorneys' fees that he had requested. Mr. Rossiello has submitted his response and the disciplinary matter is now ripe for determination.
2
In our opinion we had described Mr. Rossiello's brief as "a remarkable document. It is only five pages long, of which the argument section occupies not quite two pages entirely given over to truisms and conclusions. The perfunctory character of the appeal, which alone would justify an affirmance, [citations omitted], is remarkable rather than merely lamentable because of the serious accusations made by the district judge against the plaintiff's attorney, Ernest T. Rossiello, in support of the judge's decision to cut down the fees and costs sought by some 80 percent. Citing several previous judicial opinions criticizing (in one case actually sanctioning) Mr. Rossiello for his fee requests or affirming stiff cuts in the requested fees, [citations omitted], but missing still others (again including one case in which he was actually sanctioned), [citations omitted], the judge accused Rossiello, just as the judge in [citation omitted] had done, of engaging in the dishonest practice of joining to small valid claims, here the plaintiff's FLSA claim, large invalid and even frivolous claims, and seeking a large award of attorneys' fees for services ostensibly devoted to the small claim but actually devoted to the large." We pointed out that "in his application for fees, Rossiello allocated 124 hours, constituting half the total time that he and his associates put in on the plaintiff's entire case, to the FLSA claim, even though it was a tiny claim which required little more than the record of the days and hours worked by the plaintiff and which the defendant did not resist. The defendants had made an offer of judgment for the full amount sought before trial, which the plaintiff accepted. And before the offer was made the parties had engaged in only the most limited discovery on the claim, consisting of one request for documents, a single interrogatory, and ten or so minutes of deposition time. The judge was rightly aghast at the allocation of half the total lawyer time to the FLSA claim. A similar problem attended Rossiello's allocation of costs. In his appeal brief, Rossiello (who signed the brief) does not deny the judge's accusations. Although he complains without elaboration that the judge should have allowed him a higher hourly fee, he says nothing about the judge's accusing him of submitting what amounts to a fraudulent claim of attorneys' fees and of doing this, moreover, in case after case."
3
We are dismayed, in light of the detailed recitation of our concerns in the original opinion, that Mr. Rossiello, in his response to the order to show cause, does not forthrightly confront the charge of fraudulent billing. Except for a single footnote, his response is devoted to repeating his complaint that he should have been allowed a higher hourly fee and to trying to explain away some of the criticisms made of his billing practices by other judges in other cases. The footnote does not attempt to justify the absurd claim that he devoted 124 hours to the overtime claim. It suggests confusedly that he had to prepare to go to trial on that claim, ignoring the statement in our opinion that the defendant had made an offer of judgment for the full amount before trial which the plaintiff had accepted. The response is totally inadequate. Mr. Rossiello stands convicted of having attempted to defraud the district court and his opponent and of having defended this attempt shamelessly in this court. The appeal he took from the district court's order on fees and costs was not only frivolous but outrageous. We assess damages of $10,000 under Rule 38 of the Federal Rules of Appellate Procedure, which are to be paid by Rossiello personally (not his client) to the defendants-appellees within 14 days of the date of this order. Berwick Grain Co. v. Illinois Dept. of Agriculture, 217 F.3d 502, 506 (7th Cir. 2000) (per curiam); Hill v. Norfolk & Western Railway Co., 814 F.2d 1192, 1201-02 (7th Cir. 1987); Westinghouse Electric Corp. v. NLRB, 809 F.2d 419, 425 (7th Cir. 1987); Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir. 1986); Natasha, Inc. v. Evita Marine Charters, Inc., 763 F.2d 468, 472 (1st Cir. 1985).
4
So Ordered.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6205
KELVIN GOULD,
Petitioner - Appellant,
v.
CITY OF NE; JEFFREY COLE ROUNTREE, Attorney; TYRONE C.
JOHNSON, Attorney; ARTISHA K. TODD, Assistant Commonwealth’s
Attorney,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:09-cv-00571-JBF-JEB)
Submitted: July 22, 2010 Decided: July 30, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kelvin Gould, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Gould 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. In his
petition, Gould claimed that he had been in custody for three
years awaiting trial on several charges and his continued
detention pending resolution of those charges entitled him to
habeas relief. Gould was convicted of the state charges while
this appeal was pending. Therefore, we dismiss the appeal as
moot. We also deny all of Gould’s pending motions including:
the motion for transcripts at government expense; the motion to
withdraw/relieve/substitute counsel; the motion for appeal of
final judgment; and the motion for “Faretta” hearing. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2
|
50 F.3d 696
UNITED STATES of America, Plaintiff-Appellee,v.Micky Joe VAANDERING, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jeffrey Wayne McMILLAN, Defendant-Appellant.
Nos. 93-30280, 93-30294.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 11, 1995.Decided March 20, 1995.
James F. Halley, Weintraub & Halley, Portland, OR, for defendant-appellant Vaandering.
Michael R. Levine, Asst. Federal Public Defender, Portland, OR, for defendant-appellant McMillan.
Frank Noonan, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.
Appeals from the United States District Court for the District of Oregon.
Before: PREGERSON and TROTT, Circuit Judges, and FITZGERALD,* District Judge.
TROTT, Circuit Judge:
1
Micky Joe Vaandering appeals his jury conviction and sentence under the Sentencing Guidelines for conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and possession of methamphetamine with intent to distribute in violation of 21 U.S.C. Sec. 841. Jeffrey Wayne McMillan appeals his jury conviction and sentence under the Sentencing Guidelines for conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and possession of methamphetamine in violation of 21 U.S.C. Sec. 844(a). We affirm.
2
* Background
3
On August 31, 1992, Officer Arnold submitted an affidavit in support of an application for a search warrant of Vaandering's property. The affidavit included statements by informants Susan Slay, Daniel Feldt, Kelly Grimmett, and Tina McClure. The affidavit also incorporated a separate affidavit signed by Deputy Spang on July 19, 1991.
4
On September 1, 1992, police officers conducted searches of the residences of Vaandering and McMillan. Vaandering, McMillan, and codefendants Dunlap and Churchill were at Vaandering's residence when the search was executed. The police discovered 167 grams of methamphetamine, cans with residues of various precursor chemicals, assorted glassware and beakers, plastic tubing, and an Ohaus gram scale. The police also discovered chemicals in the trunk of a Cadillac owned by Vaandering which was parked in an adjacent tax lot, approximately one quarter mile from the tax lot on which Vaandering's residence was located. In addition, the police found five grams of methamphetamine at McMillan's residence.
5
Based on the evidence obtained from the searches and the testimony of government witnesses Susan Slay and coconspirator Jeffrey Dunlap, Vaandering was convicted of conspiracy to possess methamphetamine with intent to distribute and possession of methamphetamine with intent to distribute. Vaandering was sentenced to 78 months' imprisonment for each count, to be served concurrently. McMillan was convicted of conspiracy to possess methamphetamine with intent to distribute and possession of methamphetamine. McMillan was sentenced to 78 months' imprisonment for the conspiracy count and 12 months' imprisonment for the possession count, to be served concurrently.
II
Validity of the Search Warrant
6
Vaandering appeals the district court's denial of his motion to suppress the evidence obtained in the search of his residence. Vaandering contends the affidavit submitted by Officer Arnold to obtain a search warrant of Vaandering's residence contained false and misleading information and omitted other material information. The district court conducted a pretrial Franks hearing but concluded the search warrant was valid. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). "The district court's factual findings as to whether statements in an affidavit were false or were omitted are reversed only if clearly erroneous. Whether any omissions or misstatements are material is a mixed question of law and fact which we review de novo." United States v. Garza, 980 F.2d 546, 551 (9th Cir.1992) (citation omitted).
7
First, Vaandering argues confidential reliable informant Susan Slay was inherently unreliable because she had a drug habit and admitted under oath that she would lie when it suits her fancy. Vaandering, however, failed to submit any evidence indicating Slay was using drugs during the time period she was acting as a confidential informant for Officer Arnold. Furthermore, Slay's testimony that she would lie, without more, is irrelevant to show that Officer Arnold should have known that Slay might be giving him untrue information. Vaandering failed to establish that Officer Arnold intentionally or recklessly included false information supplied by Susan Slay in the affidavit. See United States v. Stanert, 762 F.2d 775, 780 (9th Cir.) (the focus of the inquiry is not on whether any information in the officer's affidavit may be false, but rather, whether the officer intentionally or recklessly included any false information), amended on other grounds, 769 F.2d 1410 (9th Cir.1985).
8
Second, based on the affidavits or statements of five different sources of information denying they gave the information attributed to them in Officer Arnold's affidavit, Vaandering argues Arnold's affidavit was invalid. Significantly, four of the sources asserted their Fifth Amendment rights and refused to testify at the Franks hearing, and the fifth source could not be located. Once again, Vaandering failed to offer any evidence suggesting that even if the affiants gave Officer Arnold false information, that Officer Arnold should have known it was false. The district court's finding that Officer Arnold was neither reckless nor untruthful in his recitation of the information is supported by the record.
9
Third, Vaandering argues that information contained in Officer Arnold's affidavit, some of which dated back as far as twenty-two months prior to the search, was stale. " 'The mere lapse of substantial amounts of time is not controlling in a question of staleness.' " United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.1993) (quoting United States v. Dozier, 844 F.2d 701, 707 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988)). " '[Where] the evidence sought is of an ongoing criminal business ... greater lapses of time are permitted if the evidence in the affidavit shows the probable existence of the activity at an earlier time.' " Id. at 1369-70 (quoting United States v. Greany, 929 F.2d 523, 525 (9th Cir.1991)). In this case, the older information was coupled with recently obtained information. The district court could properly find that this evidence was not stale and was an allowable basis upon which to find probable cause. See United States v. Foster, 711 F.2d 871, 878 (9th Cir.) (evidence of drug transactions occurring fifteen months prior to the issuance of a search warrant not stale where evidence also linked defendant to a drug sale occurring three months prior to the issuance of the search warrant), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1983); United States v. Rowell, 903 F.2d 899, 903 (2d Cir.1990) (eighteen month old information not stale because evidence was of a drug distribution business); United States v. Glass Menagerie, Inc., 721 F.Supp. 54, 58-59 (S.D.N.Y.1989) (two and one-half year old information not stale because evidence sought was of a narcotics paraphernalia manufacturing business).
10
And fourth, Vaandering's argument that probable cause to search his residence did not exist because one of the confidential informants did not mention Vaandering's residence is meritless. "Based on the nature of the evidence and the type of offense, a magistrate may draw reasonable inferences about where evidence is likely to be kept." Garza, 980 F.2d at 551. This court recognizes that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live." Id. The search warrant properly authorized the search of Vaandering's residence, regardless of whether or not Spang's confidential informant #3 mentioned Vaandering's residence.
11
Even if we accept all of Vaandering's arguments as true, his challenge of the search warrant must still fail. As the district court stated:[Even] [i]f I delete that portion in the latter portion of the affidavit, going to Officer Spang and also Grimmett, McClure, Feldt, and Browning ... this affidavit is so complete, it is so refined in its explanation of the way that this request for search warrant was developed, that I find that he still would have obtained a warrant to execute the search.
12
Vaandering has failed to establish the findings of the district court were clearly erroneous. Therefore, the district court's denial of Vaandering's motion to suppress the evidence obtained in the search of his residence is affirmed.
III
Scope of the Search
13
Vaandering contends the officers' search of a car located on a tax lot adjacent to the tax lot specified in the search warrant, unlawfully exceeded the scope of the search warrant. Vaandering's emphasis on the tax lot division is misplaced.
14
The description of the premises to be searched was stated in the search warrant as follows:
15
47775 S.W. Carpenter Creek Rd., also known as Rt. 1 Box 206-J, Forest Grove, Washington County, Oregon, a green single story wood framed structure, with an attached unpainted carport. The residence is located on the north side of Carpenter Creek Rd., about 800 feet west of the intersection of S.W. Plumlee Rd. The premises is further described as being located on Washington County Tax Lot #1200, found on Washington County Map # 1S 4 10, and all outbuildings located on the curtilage of the property, and the curtilage of the property.
16
The search warrant neither authorized the search of the entire area designated as Tax Lot #1200 nor limited the search to Tax Lot #1200. The scope of the search was the entire curtilage of the residence located on Tax Lot #1200. The reference to the tax lot division on the Washington County Map was an aid to the officers executing the warrant, not a delineation of the scope of the search.
17
Therefore, Vaandering's contention that the search of the car exceeded the scope of the warrant simply because the car was located on an adjacent tax lot must fail. The decision of the district court denying Vaandering's motion to suppress is affirmed.
IV
Closing Arguments
18
Vaandering contends for the first time on appeal that the prosecutor improperly commented on Vaandering's failure to testify and shifted the burden of proof to Vaandering by emphasizing that there was no evidence that Vaandering was employed. The record reflects Vaandering did not object to the prosecutor's statements either during or after closing arguments. We review alleged error raised for the first time on appeal for plain error. United States v. Tarazon, 989 F.2d 1045, 1051 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993).
19
In his closing argument, the prosecutor stated:
20
[W]hat else do you know about Mr. McMillian [sic] and Mr. Vaandering? Well, you know they are both unemployed. There is no evidence in this case from which you can determine either one of these gentlemen have ever had a job other than dealing drugs. None, whatsoever.
21
Now the Government has the burden of proof but you are entitled to consider all of the evidence in this case. Everything that you have heard, including statements of this man that he has some kind of income from somewhere and you haven't seen that, have you? ... You don't have that kind of evidence.
22
We have held that "[t]he prosecutor may comment on the defendant's failure to present exculpatory evidence, provided that the comments do not call attention to the defendant's own failure to testify." United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991) (citation omitted). Furthermore, comments intended to highlight the weaknesses of a defendant's case do not shift the burden of proof to the defendant where the prosecutor does not argue that a failure to explain them adequately requires a guilty verdict and reiterates that the burden of proof is on the government. Id. "It is a common practice for one side to challenge the other to explain to the jury uncomfortable facts and inferences." Id.
23
In the instant case, the prosecutor neither commented on Vaandering's failure to testify nor expressly or implicitly shifted the burden of proof. In fact, the prosecutor expressly told the jury the burden of proof was on the government. Therefore, the prosecutor's comment on Vaandering's failure to present exculpatory evidence regarding his employment was permissible.
V
Aiding and Abetting Jury Instruction
24
Vaandering and McMillan jointly contend the district erred on two grounds in instructing the jury on the elements of aiding and abetting: 1) the instruction did not identify the specific offense to which the aiding and abetting instruction applied; and 2) the instruction did not inform the jury that the underlying crime had to be committed by someone.
25
A district court's formulation of jury instructions is generally reviewed for an abuse of discretion. United States v. Woodley, 9 F.3d 774, 780 (9th Cir.1993). Whether a jury instruction misstates the elements of a crime, however, is a question of law and is reviewed de novo. United States v. Blinder, 10 F.3d 1468, 1477 (9th Cir.1993).
26
First, the district court was not required to indicate to which specific counts the aiding and abetting instruction was tied. Aiding and abetting may be implied in every substantive federal offense. United States v. Armstrong, 909 F.2d 1238, 1241-42 (9th Cir.), cert. denied, 498 U.S. 870, 111 S.Ct. 191, 112 L.Ed.2d 153 (1990). "The difference between causing and aiding and abetting alone ... does not prevent either or both theories from being implied in an indictment." Id. at 1242. Therefore, the district court did not err in failing expressly to connect the aiding and abetting instruction to a specific count or counts of the indictment.
27
As to the second basis of alleged error, the defendants failed to make the objection that the instruction was improper because it did not identify the defendant to which it was directed and it failed to instruct the jury it must find that someone committed the principal offense. "In the absence of a proper objection, we review jury instructions for plain error." Id. at 1244 (citation omitted). The jury instruction was not so misleading that the jury would have believed it could convict one or both defendants of aiding and abetting without believing that the law had been violated. Furthermore, "[t]he government is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted." Manual of Model Criminal Jury Instructions for the Ninth Circuit, Sec. 5.01 (1989). Therefore, the district court did not commit plain error in instructing the jury on the elements of aiding and abetting.
VI
Conspiracy Jury Instruction
28
Vaandering and McMillan contend the district court erred in refusing to give an instruction to the jury stating a person does not become a member of a conspiracy merely because he approves of, or acquiesces in, a conspiracy.
29
The district court gave this Circuit's complete model instruction on conspiracy. That instruction includes the following language: "Similarly, a person does not become a member merely by associating with one or more persons who are conspirators, nor merely by knowing of the existence of a conspiracy." Id. at Sec. 8.05A. This instruction was sufficient to instruct the jury on defendants' theory of defense. "A defendant is not entitled to any particular form of instruction, nor is he entitled to an instruction that merely duplicates what the jury has already been told." United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992). Therefore, the district court did not err in refusing to give defendants' proposed jury instruction on conspiracy.VII
Lesser-Included Offense Jury Instruction
30
McMillan appeals the district court's refusal to instruct the jury on the lesser-included offense of conspiracy to possess methamphetamine. The jury convicted McMillan of the greater offense of conspiracy to possess methamphetamine with the intent to distribute.
31
Initially, we address the parties' disagreement as to the standard by which this Court reviews the district court's decision. McMillan argues that a de novo review is the appropriate standard, citing United States v. Sneezer, 900 F.2d 177, 178 (9th Cir.1990) and United States v. Komisaruk, 885 F.2d 490, 497 (9th Cir.1989). The government contends the district court's decision not to instruct on a lesser-included offense should be reviewed for abuse of discretion, citing United States v. Pedroni, 958 F.2d 262, 268 (9th Cir.1992) and United States v. Torres, 937 F.2d 1469, 1475-76 (9th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 886, 116 L.Ed.2d 789 (1992).
32
This apparent inconsistency in the law of this Circuit is the result of the two-element test for determining whether a defendant is entitled to an instruction on a lesser-included offense. "First, the defendant must prove that the offense on which instruction is sought is a lesser-included offense of that charged and second, the defendant must show that the jury rationally could conclude that the defendant was guilty of the lesser-included offense but not of the greater." Pedroni, 958 F.2d at 267-68 (footnote omitted). The first step of the inquiry is reviewed de novo. Torres, 937 F.2d at 1476. The second step is reviewed for abuse of discretion. Id.
33
Although Sneezer and Komisaruk do not discuss both steps of the analysis, the focus of the inquiry in both cases was whether the offense for which the instruction was sought was a lesser-included offense of that charged. Therefore, both opinions correctly used the de novo standard of review.
34
In the instant case, however, the district court correctly determined that the offense of conspiracy to possess methamphetamine is a lesser-included offense of conspiracy to possess methamphetamine with the intent to distribute. That determination is not in dispute. McMillan's only contention on appeal is that there were sufficient facts for the jury to rationally conclude that he was part of a conspiracy for the sole purpose of possessing cocaine. Because only the second step of the analysis is in issue, we review the district court's refusal to give the requested instruction for abuse of discretion. Torres, 937 F.2d at 1467.
35
Where an instruction on a lesser-included offense is supported by law, a defendant is entitled to such an instruction only if the theory has some evidentiary foundation. United States v. Gutierrez, 990 F.2d 472, 477 (9th Cir.1993). Such an evidentiary foundation does not exist where "a rational jury could not convict a defendant of any lesser offense without relying on the precise evidence which establishes guilt of the offense charged." Id.
36
McMillan was charged with conspiracy to possess methamphetamine with the intent to distribute in connection with drug operations being conducted at Vaandering's home. If a defendant is charged with possession with intent to distribute, the district court may refuse to give an instruction on simple possession where there is a large quantity of a drug and other evidence tending to establish distribution. Id. (citing United States v. Powell, 932 F.2d 1337, 1342 (9th Cir.), cert. denied, 502 U.S. 891, 112 S.Ct. 256, 116 L.Ed.2d 210 (1991)).
37
The evidence at trial showed that a search of Vaandering's residence revealed not only 167 grams of methamphetamine, but also a methamphetamine lab complete with precursor chemicals, glassware, and scales. Furthermore, there was testimony that Vaandering's residence was a source of methamphetamine for the purpose of distribution. Significantly, McMillan failed to produce any evidence, other than the quantity of methamphetamine actually recovered, to support the proposition that the methamphetamine lab was used to produce methamphetamine solely for the personal use of the members of the conspiracy.
38
We conclude a rational jury could not have convicted McMillan for conspiracy to possess without relying on the precise evidence establishing that the purpose of the conspiracy was the production and distribution of methamphetamine. In reaching this conclusion, we express no opinion as to whether 167 grams of methamphetamine, without more, is a sufficiently large quantity of drugs to preclude an instruction for simple possession. Our decision is based on the amount of methamphetamine recovered combined with the considerable amount of "other evidence" establishing distribution. The district court was within its discretion in denying McMillan's request for a jury instruction on the lesser-included offense of conspiracy to possess.
VIII
Testimony of Coconspirator
39
McMillan contends the district court erred by failing to strike the testimony of coconspirator Dunlap that he "figured" McMillan was providing chemicals for Vaandering because this constituted inadmissable lay opinion testimony.
40
"We review claims of evidentiary error under an abuse of discretion standard." United States v. Brook, 4 F.3d 1480, 1487 (9th Cir.1993). A district court's ruling on the relevance of evidence is reviewed for an abuse of discretion. United States v. Rubio-Topete, 999 F.2d 1334, 1338 (9th Cir.1993).
41
McMillan's counsel first raised the issue of Dunlap's actual knowledge of McMillan's involvement in Vaandering's drug operation during his cross-examination of Dunlap. McMillan's counsel asked Dunlap whether, to his knowledge, McMillan had ever distributed, assisted in the manufacture of, or sold methamphetamine. On redirect examination the prosecutor asked Dunlap if he told the police that he believed McMillan was responsible for providing chemicals for Vaandering. Dunlap responded that he "just figur[ed] that is the way it was." Defense counsel clearly "opened the door" to this line of questioning. See United States v. Taylor, 716 F.2d 701, 710 (9th Cir.1983). The trial court did not abuse its discretion by overruling defense counsel's objection.
IX
Sentencing
42
McMillan contends the district court erred in finding McMillan was a member of the conspiracy for six months and speculating as to the amount of drugs attributable to McMillan through the conspiracy. The district court's factual findings in the sentencing phase are reviewed for clear error. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994). The government must establish the quantity of drugs attributable to a member of a conspiracy by a preponderance of the evidence. United States v. Petty, 992 F.2d 887, 891 (9th Cir.1993).
43
McMillan argues he was not involved with the conspiracy until May or June of 1992, 3 months before the defendants were arrested. There is evidence in the record, however, to suggest McMillan was involved in the conspiracy as early as January of 1992. The district court's finding that McMillan was involved with the conspiracy for a period of six months is not clearly erroneous.
44
McMillan also contends the district court improperly speculated on the extent of McMillan's involvement in the conspiracy. The district court made an express finding that McMillan and Vaandering "were both involved throughout the six months, and that they both significantly contributed to the production of that amount." This finding is supported by the record, and McMillan fails to present any evidence to the contrary.
45
Finally, the district court made specific findings as to the quantity of drugs it believed was involved in the conspiracy.
46
McMillan fails to present any facts suggesting the district court's calculations were clearly erroneous. He fails to present any evidence suggesting the district court should have deducted some indeterminate amount of drugs which were for the personal use of the conspirators. Therefore, the findings of the district court concerning relevant conduct of McMillan were not clearly erroneous.
X
CONCLUSION
47
For the foregoing reasons, the convictions and sentences of Micky Joe Vaandering and Jeffrey Wayne McMillan are
48
AFFIRMED.
*
The Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation
|
903 P.2d 826 (1995)
Dyarell D. HUNT, Appellant,
v.
WARDEN, NEVADA STATE PRISON, John Igmacop, Respondent.
No. 26495
Supreme Court of Nevada.
October 4, 1995
Dyarell D. Hunt, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City, for Respondent.
*827 OPINION
PER CURIAM:
On October 17, 1994, appellant filed in the district court a post-conviction petition for a writ of habeas corpus. On November 1, 1994, the district court summarily denied appellant's petition. This appeal followed.
In his petition, appellant stated that he is serving a sentence of "life with the possibility of parole three counts running concurrent as habitual criminal." Appellant further stated that he filed his petition as a challenge to the computation and application of good time credits to his sentence. Finally, appellant argued that "NRS 209.446 mandates that the total good time made must be deducted from the maximum term imposed by the sentence. [Appellant] is not receiving these deductions as mandated by NRS 209.446."
In denying appellant's petition, the district court stated that it could not determine a basis upon which it could grant the relief sought because appellant did not provide the court with sufficient facts concerning the time, nature or current disposition of his sentence. Our review of the record on appeal reveals that the district court did not err in denying appellant's petition. First, appellant did not provide the district court with sufficient information concerning his judgment of conviction and sentence. Next, it appears that appellant is arguing that good time credits should be applied to his sentence of life in prison with the possibility of parole. NRS 209.446(6)(a) provides that good time credit "[m]ust be deducted from the maximum term imposed by the sentence." Because appellant was sentenced to a term of life in prison, there is no date from which the credit can be deducted.
The statute does not provide any guidance as to the application of good time credit to a sentence of life in prison. When interpreting a statute, this court resolves any doubt as to legislative intent in favor of what is reasonable, and against what is unreasonable. Oakley v. State, 105 Nev. 700, 702, 782 P.2d 1321, 1322 (1989). A statute should be construed in light of the policy and the spirit of the law, and the interpretation should avoid absurd results. Id. In construing the legislative intent of NRS 209.446, we conclude that the legislature did not intend good time credit to be applied to a sentence of life in prison. However, respondent should continue to record good time credit for those inmates who receive a sentence of life in prison because that sentence may later be modified pursuant to NRS 176.033(2). Respondent is not obligated to apply good time credit to appellant's sentence of life in prison.
Having reviewed the record on appeal, and for the reasons set forth above, we conclude that appellant cannot demonstrate error in this appeal, and that briefing and oral argument are unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert. denied, 423 U.S. 1077 (1976).
Accordingly, we affirm the order of the district court.
|
471 F.Supp.2d 295 (2007)
CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY, Rev. G. Stanford Bratton, D. Min., Executive Director of the Network of Religious Communities, National Coalition Against Gambling Expansion, Preservation Coalition of Erie County, Inc., Coalition Against Casino Gambling in New YorkAction, Inc., the Campaign for BuffaloHistory Architecture and Culture, Assemblyman Sam Hoyt, Maria Whyte, John McKendry, Shelly McKendry, Dominic J. Carbone, Geoffrey D. Butler, Elizabeth F. Barrett, Julie Clearly, Erin C. Davison, Alice E. Patton, and Maureen C. Schaeffer, Plaintiffs, and
County of Erie and Joel A. Giambra, Intervenor-Plaintiffs,
v.
Dirk KEMPTHORNE,[1] in his Official Capacity as the Secretary of the Interior, James Cason, in his Official Capacity as the Acting Assistant Secretary of the Interior for Indian Affairs, United States Department of the Interior, Philip N. Bogen, in his Capacity as Chairman of the National Indian Gaming Commission, and National Indian Gaming Commission, Defendants.
No. 06-CV-0001S.
United States District Court, W.D. New York.
January 12, 2007.
*297 *298 *299 *300 Brendon R. Mahaffey, Knoer, Crawford & Bender, LLC, Buffalo, NY, Gregg S. Maxwell, Joseph M. Finnerty, Karim A. Abdulla, Stenger & Finnerty, Buffalo, NY, Kendra E. Winkelstein, Richard J. Lippes, Richard Lippes & Associates, Buffalo, NY, Michael L. Jackson, Rachel E. Jackson, Jackson & Jackson, LLP, Buffalo, NY, Richard G. Berger, Buffalo, NY, Robert E. Knoer, for Plaintiffs.
Gina Louise Allery, Alex Kriegsman, U.S. Dept. of Justice, Washington, DC, Mary Pat Fleming, U.S. Attorney's Office, Buffalo, NY, for Defendants.
DECISION AND ORDER
SKRETNY, United States District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ................................................... ____
II. BACKGROUND ..................................................... ____
A. Legal Background ............................................ ____
1. The Relevant Provisions of the IGRA ...................... ____
a. Indian Lands .......................................... ____
b. Tribal-State Gaming Compacts .......................... ____
c. Tribal Gaming Ordinances .............................. ____
2. The Seneca Nation Settlement Act of 1990 ................. ____
B. Factual Background .......................................... ____
*301
1. The SNI's Tribal-State Compact ................................ ___
2. The SNI's Class III Gaming Ordinance .......................... ___
3. The SNI's Land Acquisitions ................................... ___
C. The Lawsuit ...................................................... ___
III. DISCUSSION .......................................................... ___
A. SNI's Motion for Leave to File an Amicus Brief ................... ___
1. Standard for Consideration of Amicus Curiae Participation ..... ___
2. The Propriety of SNI's Proposed Submission .................... ___
3. The Analytical Framework ...................................... ___
4. The Necessary Party Determination ............................. ___
B. Subject Matter Jurisdiction ...................................... ___
C. APA Review ....................................................... ___
1. Standard of Review ............................................ ___
2. Review of Final Agency Action under the IGRA .................. ___
D. The NIGC's Approval of the SNI's Tribal Gaming Ordinance ......... ___
E. The Remaining Claims and Motions ................................. ___
IV. CONCLUSION ........................................................... ___
V. ORDERS ................................................................ ___
ABBREVIATIONS AND ACRONYMS
The following abbreviations and acronyms are used in this, decision:
STATUTES
APA Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.
IGRA Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq.
NEPA National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.
NHPA National Historic Preservation Act, 16 U.S.C. §§ 470 et seq.
SNSA Seneca Nation Settlement Act of 1990, 25 U.S.C. §§ 1774 et seq.
QTA Quiet Title Act, 28 U.S.C. § 2409a
AGENCIES AND ENTITIES
Chairman Chairman of the National Indian Gaming Commission
NIGC. National Indian Gaming Commission
Secretary Secretary of the United States Department of the Interior
SEGC Seneca Erie Gaming Corporation SNI Seneca Nation of Indians
DOCUMENTS
Compact "Nation-State Gaming Compact between the Seneca Nation of Indians and the State of New York," deemed approved by the Secretary as of October 25, 2002
Ordinance "Seneca Nation of Indians Class III Gaming Ordinance of 2002 as Amended," approved by the Chairman on November 26, 2002
I. INTRODUCTION
On January 3, 2006, Plaintiffs Citizens against Casino Gambling in Erie County, et al., commenced this action for declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706; the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq.; the National Environmental Policy Act ("NEPA"), as amended, 42 U.S.C. §§ 4321 et seq.; and the National Historic Preservation Act ("NHPA"), as amended, 16 U.S.C. §§ 470 et seq. Plaintiffs allege that former Secretary of the Interior Gale A. Norton; Acting Assistant Secretary of the Interior for Indian Affairs James Cason; *302 the United States Department of the Interior; Chairman of the National Indian Gaming Commission Philip N. Hogen; and the National Indian Gaming Commission ("NIGC") (collectively, "Defendants" or "the Government") violated the laws of the United States when, by their decisions and actions, they permitted the Seneca Nation of Indians ("SNI") to construct a gambling casino on land it purchased in the City of Buffalo with funds appropriated pursuant to the Seneca Nation' Settlement Act of 1990 ("SNSA").
There are four motions presently before this Court. First is the Government's Motion to Dismiss the Complaint in its entirety for lack of subject matter jurisdiction and failure to state a claim, filed on April 26, 2006.[2] (Docket No. 22.) On July 25, 2006, Plaintiffs filed a joint Motion for Summary Judgment as to all claims. (Docket No. 39.) On August 8, 2006, the SNI moved for leave to file an amicus brief seeking dismissal of the Complaint in its entirety pursuant to Rule 19 of the Federal Rules of Civil Procedure. (Docket No. 44.) Each of these motions has been fully briefed, was the subject of extensive oral argument on November 1, 2006, and is now pending for disposition. In addition, the Government moved to strike Plaintiffs' exhibits and portions of their Memorandum of Law in Support of Summary Judgment. (Docket No. 54.) The Motion to Strike was taken under advisement without oral argument.
As discussed more fully below, this Court will grant the SNI's motion for leave to file an amicus brief. However, after fully considering the SNI's position and the arguments set forth in its brief, this Court finds that neither the SNI nor the State of New York is a necessary and indispensable party to this action such that dismissal of the case is required under Rule 19 of the Federal Rules of Civil Procedure. Specifically, this Court finds that the SNI's interest in operating a gambling casino in the City of Buffalo is adequately represented by the Defendants in this action, who are vigorously defending their decisions to permit that very activity. Furthermore, the State does not have an interest in the subject matter of this litigation that will be impaired by a judgment in Plaintiffs' favor.
Defendants have moved to dismiss this action in its entirety on the grounds that: 1) the Quiet Title Act applies to this case and the Defendants are therefore immune from suit, 2) the Secretary of the Interior's ("the Secretary") "Indian lands" opinion is not a reviewable final agency action under the APA and therefore the Court lacks jurisdiction to consider Plaintiffs' claims, 3) the NIGC Chairman is not required to make an Indian lands determination and he fully carried out his statutory duties, and 4) Plaintiffs otherwise fail to state any claim against any Defendant.
This Court finds that Plaintiffs are not challenging the SNI's title to real property it purchased in the City of Buffalo and *303 therefore rejects Defendants' argument that the Quiet Title Act renders Defendants immune from suit. However, this Court does agree with Defendants that the Secretary's "Indian lands" opinion was not a final agency action and, further, that no final agency action has occurred with respect to that determination. As such, the Secretary's opinion and related statutory interpretations are not yet reviewable under the APA, and this Court is without jurisdiction to review the IGRA claims against the Secretary. Accordingly, this Court will grant Defendants' motion to dismiss claims One and Two against the Secretary for lack of subject matter jurisdiction.
Having fully considered the purpose and structure of the IGRA, and the authority delegated to the NIGC by Congress, this Court rejects Defendants' contention that the NIGC Chairman is not required to make "Indian lands" determinations when he acts on a tribal gaming ordinance. To the contrary, whether Indian gaming will occur on Indian lands is a threshold jurisdictional question that the NIGC must address on ordinance review to establish that: 1) gaming is permitted on the land in question under the IGRA, and 2) the NIGC will have regulatory and enforcement power over the gaming activities occurring on that land. In this case, both the general location in which the SNI intended to purchase land and the manner in which it intended to acquire and hold that land were made known to the NIGC Chairman in 2002. However, there is no indication in the record that he considered that information or made any Indian lands determination when he affirmatively approved the SNI's class III gaming ordinance in 2002. Therefore, this Court will deny Defendants' motion to dismiss the IGRA claims against the NIGC.
As a result of this Court's conclusion that the NIGC failed to consider this threshold jurisdictional issue, this Court can not find that the NIGC's approval of a tribal gaming ordinance permitting the SNI to conduct gambling on newly acquired land in the City of Buffalo was the result of reasoned decision-making. Because the Indian lands determination is one that Congress placed in the NIGC's hands, the NIGC's 2002 ordinance approval is vacated as arbitrary and capricious insofar as it permits gaming on land to be acquired thereafter in the City of Buffalo. The SNI's ordinance will be remanded to the NIGC for an Indian lands determination with respect to the Buffalo Parcel.
As explained more fully below, the remand to the NIGC moots Plaintiffs' remaining claims and, consequently, Plaintiffs' Motion for Summary Judgment, Defendants' Motion to Strike and the remainder of Defendants' Motion to Dismiss are also rendered moot.
II. BACKGROUND
This Court is asked to review the reasonableness of agency action, including decisions involving statutory interpretation of both the IGRA and the SNSA. Therefore, a recitation of the legal and factual background of this case is helpful in understanding the issues presented in the pending dispositive motions, particularly with respect to certain statutory terms such as "Indian lands," "restricted fee," "governmental power," "tribal-state compact," "gaming ordinance," and "land claim." Some of these same terms also are central to consideration of the SNI's motion for leave to file an amicus brief.
A. Legal Background
1. The Relevant Provisions of the IGRA
Congress enacted the IGRA, in 1988 to establish a comprehensive statutory *304 scheme governing gambling on Indian lands. 25 U.S.C. §§ 2701-2721. The IGRA "seeks to balance the competing sovereign interests of the federal government, state governments and Indian tribes, by giving each a role in the regulatory scheme." Artichoke Joe's v. Norton, 216 F.Supp.2d 1084, 1092 (E.D.Cal.2002), aff'd, 353 F.3d 712 (9th Cir.2003), cert. denied, 543 U.S. 815, 125 S.Ct. 51, 160 L.Ed.2d 20 (2004).
The IGRA provides for three classes of gaming, each of which is subject to a different level of regulation. 25 U.S.C. § 2710. Class I gaming is not subject to any type of regulation and includes "social games solely for prizes of minimal value or traditional forms of Indian gaming [associated] with tribal ceremonies or celebrations." Id. § 2703(6), 2710(a)(1) (alteration added).
Class II gaming includes bingo, pulltabs, punch boards and other similar games, as well as card games not prohibited by state law. Id. § 2703(7)(A). Class II games are authorized if conducted under a gaming ordinance approved by the NIGC Chairman and located in a state that permits such gaming for any purpose by any entity. Id. § 2710(a)(2), (b)(1)(A) and (B). The Federal government regulates, monitors and audits class II gaming. Id. § 2706.
Class III gaming, the category at issue in this case, is the "most heavily regulated and most controversial form of gambling" under the IGRA. Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 715 (9th Cir.2003). It is comprised of all forms of gaming not in classes I or II, including slot machines, games such as baccarat, blackjack, roulette, and craps, and sport betting, parimutuel wagering and lotteries. Id. § 2703(8) and (7)(B); 25 C.F.R. § 502.4. Class III gaming is lawful only if: (1) the governing body of the tribe having jurisdiction over the "Indian land" on which gaming is to take place authorizes class, III gaming by adopting an "ordinance" or resolution that is then approved by the NIGC Chairman; (2) the gaming is located in a state that permits such gaming; and (3) the gaming is conducted in conformance with a "tribal-state compact" that regulates such gaming. Id. § 2710(d)(1).
a. Indian Lands
The consistent and overarching requirement common to each class of gaming is that it be sited on Indian land within the tribe's jurisdiction. Id. § 2710(a)(1), (b)(1), (d)(1)(A)(i) and (d)(2)(A). For purposes of the IGRA, "Indian lands" include:
(A) all lands within the limit of any Indian reservation; and
(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.
Id. § 2703(4) (emphasis supplied). The land in the City of Buffalo at issue in this case was purchased by the SNI in 2005 and is held in "restricted fee" i.e., it is subject to restriction by the United States against alienation. The parties disagree as to whether the SNI can exercise governmental power over that land.
Another IGRA provision at issue here, § 2719, expressly prohibits gaming on land "acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988" unless a defined statutory exception applies.[3] Included among the exceptions are when:
*305 (A) the Secretary, after consultation with the Indian tribe and appropriate State, and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination; or
(B) lands are taken into trust as part of
(i) a settlement of a land claim,
Id. § 2719(b)(1) (emphasis supplied). The applicability of the "settlement of a land claim" exception to land acquired in Buffalo after October 17, 1988, is in dispute here.
b. Tribal-State Gaming Compacts
An Indian tribe wishing to conduct class III gaming must first request that the state in which its lands are located engage in negotiations for a tribal-state compact to govern the conduct of gaming activities. Id. § 2710(d)(3)(A). Compacts may include provisions relating to regulatory and jurisdictional issues, state assessments on gaming activities, taxation by the Indian tribe, other subjects relating to the operation of gaming activities, and remedies for breach of contract. Id. § 2710(d)(3)(C).
If an agreement is reached, the compact is submitted to the Secretary of the Interior, who may approve, disapprove or take no action on it. Id. § 2710(d)(8). "If the Secretary does not approve or disapprove a compact [within] 45 days after the date on which the compact is submitted to the Secretary for approval, the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with [the IGRA]." Id. § 2710(d)(8)(C)"
Consistent with the foregoing provision, the Secretary is permitted to disapprove a compact only if it violates IGRA, any other provision of federal law, or the United States' trust obligations to Indians. Id. § 2710(d)(8)(B). A compact that is either affirmatively approved or considered approved by virtue of the Secretary's nonaction takes effect when notice of the approval is published in the Federal Register. Id. § 2710(d)(3)(B).
c. Tribal Gaming Ordinances
An Indian tribe wishing to conduct class III gaming must also, through its governing body, adopt an ordinance or resolution authorizing class. III gaming. That ordinance or resolution must be submitted to the NIGC Chairman along with, among Other things, a copy of the tribal-state compact for class III gaming. Id. § 2710(2)(A); 25 C.F.R. § 522.2. The Chairman is required, no later than 90 days after the ordinance or resolution is submitted, to approve a submission that: 1) proposes class III gaming on Indian lands of the Indian tribe, and 2) meets the articulated statutory requirements, unless the Chairman determines that the ordinance was not adopted in compliance with the tribe's governing documents, or that the tribal governing body was significantly and unduly influenced in its adoption. 25 U.S.C. § 2710(d)(2)(B) and (e). Thereafter, Class III gaming activity may commence upon publication of the ordinance or resolution and the Chairman's order of approval in the Federal Register, in conformance with the terms of a tribal-state compact that has been approved by the Secretary. Id. § 2710(d)(1)(C), (2)(B) and (C).
If the Chairman does not act on an ordinance or resolution within 90 days after *306 its submission, it "shall be considered to have been approved by the Chairman, but only to the extent [it] is consistent with [the IGRA]." Id. § 2710(e).
2. The Seneca Nation Settlement Act of 1990
For more than a century prior to the SNSA's enactment, the SNI leased land on its Allegany Reservation[4] to non-Indians. 25 U.S.C. § 1774(a)(2)(A) and (B). The leases were primarily concentrated in the City of Salamanca and the nearby villages of Carrollton, Great Valley and Vandalia. Id. §§ 1774(a)(1) and 1774a(10). The bulk of the leases, first confirmed or authorized by Congress in 1875 (18 Stat. 330), were for a term of ninety-nine years that was set to expire on February 19, 1991. Id. §§ 1774(a)(2)(C) and (4). Over the years, the leases strained relations between the Indian and non-Indian communities. Id. § 1774(a)(1).
One of the SNSA's primary purposes was to facilitate the SNI's negotiated extension of the existing land leases with its non-Indian tenants. 25 U.S.C. §§ 1774(b)(1) and (3). Although the SNI had no legal claims pending at the time of the SNSA's enactment, it had filed a claim over the value of its leases in 1952 that eventually was settled in 1977. Id. §§ 1774(a)(E), (b)(8). In light of the impending lease expiration date, Congress undertook an analysis of historic land values and found that payments made to the SNI under the original lease agreement and also in the 1977 settlement "were well below the actual lease value of the property." Id. § 1774(a)(3).
By enacting the SNSA, Congress sought to assist in resolving the past inequities to the SNI, to provide stability and security to the non-Indian lessees, to promote `economic growth and community development for both the SNI and the non-Indian communities established on reservation land, and to avoid the potential legal liability on the part of the United States that could result if a settlement was not reached.[5]Id. §§ 1774(b)(2) and (4)-(8).
In exchange for relinquishing all potential legal claims for lease payments through February 19, 1991, the SNI received, among other things, a payment from the Secretary of the Interior of $30,000,000. Id. §§ 1774b(b) and 1774d(b)(1). The SNSA permits the SNI to use those funds to acquire land that is "within its aboriginal area in the State [of New York] or situated within or near proximity to former reservation land." Id. § 1774f(c) (alternation added). Under the SNSA, the State and local governments are to be notified of such an acquisition and are afforded 30 days in which to submit comments to the Secretary on the impact of the removal of the land from real property tax rolls. Id.
Unless the Secretary determines within 30 days after the comment period that such lands should not be subject to the provisions of section 2116 of the Revised Statutes (25 U.S.C. 177), such lands shall be subject to the provisions of that Act and shall be held in restricted fee status by the Seneca Nation. Based on the proximity of the land acquired to the Seneca Nation's reservations, land acquired may become a part of and expand the boundaries of the Allegany Reservation, *307 the Cattaraugus. Reservation, or the Oil Spring Reservation in accordance with the procedures established by the Secretary for this purpose.
Id. Once the land attains restricted fee status, it cannot be sold, leased or otherwise conveyed by the SNI without the approval of the federal government. 25 U.S.C. § 177.
B. Factual Background
The facts set forth below are either undisputed or drawn from the administrative records.[6] Any controverted allegations in the Complaint that must be accepted as true for purposes of Defendants' Motion to Dismiss will be discussed further herein, as necessary.
1. The SNI's Tribal-State Compact
On August 18, 2002, the SNI and the State of New York ("the State") executed a tribal-state compact[7] ("the Compact") for the conduct of class III gaming activities. (Docket No. 1 (Complaint) ¶ 27; Docket Nos. 27-16 (the Compact); 25-2 at 1; 39-9 ¶¶ 10, 15; 53-2 ¶¶ 10, 15.) The Compact authorizes the SNI to establish three Gaming Facilities: 1) at a selected site in the City of Niagara Falls, 2) at a location to be determined in the City of Buffalo or elsewhere in Erie County, and 3) on current SNI reservation territory. (Complaint ¶¶ 28-29; Compact ¶ 11.) The Compact reflects the parties' understanding that both the Niagara Falls and Buffalo sites would be purchased with SNSA funds. (Compact ¶ 11(b)(2) and (3).) In anticipation of the use of SNSA funds, the State agreed to support the SNI in its efforts to obtain restricted fee status for both sites. Id. ¶ 11(b)(3).
In addition to circumscribing the geographic sites for gaming and identifying the manner in which new land for gaming will be acquired, the Compact grants the SNI total exclusivity to operate gaming devices within a 10,500 square mile area in western New York State. Id. ¶ 12(a); Docket No. 25-2 at 1.
The executed Compact was forwarded to the Department of the Interior and received on September 10, 2002. Within 45 days thereafter, the Secretary did not affirmatively approve or disapprove the Compact, thereby allowing it to be deemed approved as of October 25, 2002, pursuant to Section 11(d)(8)(C) of the IGRA, 25 U.S.C. § 2710(d)(8)(C). (Complaint ¶¶ 27, 30; Docket Nos. 39-9 ¶ 16; 53-2 ¶ 16.)
In letters to the SNI President and the Governor of New York, dated November 12, 2002, then-Secretary Norton explained her decision not to affirmatively act on the Compact, but to allow it to go into effect by operation of, law. (Docket No. 25-2.) Excerpted below are several of the Secretary's observations and determinations:
Under IGRA the Department must determine whether the Compact violates IGRA, any other provision of Federal law . . . or the trust obligations of the United States to Indians. Id. at 1.
I have decided to allow this Compact to take effect without Secretarial action. *308 In enacting IGRA, Congress provided limited reasons for Secretarial . . . disapproval. [I have] important Policy concerns regarding the Compact . . . that fall outside of the limited reasons in IGRA for Secretarial disapproval. Id. at 1-2.
The choice to specifically deny other tribes gaming opportunities [by granting the SNI geographic exclusivity] is the primary reason I have chosen not to affirmatively approve this Compact. Id. at 4 (alteration added).
Lands Acquired through the Seneca Nation Settlement Act
I have concluded that this Compact appropriately permits gaming on the subject lands because Congress has expressly provided for the Nation to acquire certain lands pursuant to the Settlement Act. Id. at 2.
[I]t is our opinion that the two cities of Niagara Falls and Buffalo are "situated within or near proximity to" the Nation's former Buffalo Creek and Tonawanda reservations for purposes of the Settlement Act. Id. at 6.
This decision rests squarely on a Congressionally-approved settlement of a land claim. Id.
Indian Lands under IGRA
IGRA permits a tribe to conduct gaming activities on Indian lands if the tribe has jurisdiction over those lands, and only if the tribe uses that jurisdiction to exercise governmental power over the lands. There is no question that the Settlement Act requires the parcels to be placed in "restricted' fee" status. As such, these parcels will come within the definition of "Indian lands" in IGRA if the Nation exercises governmental power over them. The Department assumes that the Nation will exercise governmental powers over these lands when they are acquired in restricted fee. It is our opinion that the Nation will have jurisdiction over these parcels because they meet the definition of "Indian country" under 18 U.S.C. § 1151. Historically, Indian country is land that, generally speaking, is subject to the primary jurisdiction of the Federal Government and the tribe inhabiting it. As interpreted by the courts, Indian country includes lands which have been set aside by the Federal Government for the use of Indians and subject to federal superintendence. In this regard, it is clear that lands placed in restricted status under the Settlement Act are set aside for the use? of the Nation, and that such restricted status contemplated federal superintendence over these lands. Finally, the Settlement Act authorizes lands held in restricted status to expand the Nations' [sic] reservation boundaries, or become part of the Nation's reservation. Accordingly, we believe that the Settlement Act contemplates that lands placed in restricted status be held in the same legal manner as existing Nation's lands are held and thus, subject to the Nation's jurisdiction. Id.
Application of Section 20 of IGRA
Section 20 of IGRA, 25 U.S.C. § 2719[,] contains a general prohibition on gaming on lands acquired in trust by the Secretary for the benefit of an Indian tribe after October 17, 1988, unless one of several statutory exceptions is applicable to the land. [T]he Nation plans to use the provisions of the Settlement Act to acquire the land in restricted fee, rather than in trust. . . . I believe that lands held in restricted fee status pursuant to an Act of Congress such as is presented within this Compact must be subject to the requirements of Section 20 of IGRA. Id. at 6-7.
The legislative history to the Settlement Act makes clear that one of its purposes *309 was to settle some of the Nation's land claim issues. Thus, the Nation's parcels to be acquired pursuant to the Compact and the Settlement Act will be exempt from the prohibition on gaming contained in Section 20 because they are lands acquired as part of the settlement of a land claim, and thus fall within the exception in 25 U.S.C. § 2719(b)(1)(B)(i). Id. at 7.
In sum, the then-Secretary acknowledged an affirmative duty to determine whether a compact should be disapproved and decided that there was no basis for disapproval in this case. She further concluded that gaming could take place at sites, in Niagara Falls and Buffalo purchased after October 17, 1988 with SNSA funds because the lands would be acquired as part of the settlement of a land claim, and would be held in restricted fee and subject to the SNI's jurisdiction and governmental authority, thereby meeting the IGRA definition of Indian lands.
On December 9, 2002, the Department of the Interior published a notice in the Federal Register stating that the Compact "is considered approved, but only to the extent the compact is consistent with the provisions of IGRA." 67 Fed.Reg. 72,968.
2. The SNI's Class III Gaming Ordinance
On August 29, 2002, the SNI submitted a Class III Gaming Ordinance and related material, including the Compact, to the NIGC. (Docket No. 17-1, -2 and -10.) This was prior to the SNI's submission of the Compact, to the Secretary.
Early in November 2002, the NIGC informed the SNI of certain technical deficiencies in its submission package that required amendment. (Docket No. 17-5.) As a result, the SNI submitted a "Class III Gaming Ordinance of 2002 as Amended" ("Ordinance") on November 25, 2002, which the NICG Chairman affirmatively approved on November 26, 2002. (Id. and Docket No. 17-10.) This was one day after the (amended) Ordinance's submission and within 90 days of submission of the original ordinance. The NIGC Chairman's letter to the SNI President confirming his approval advised that "the gaming ordinance is approved for gaming only on Indian lands, as defined in the IGRA, over which the Nation has jurisdiction." (Docket No.17-10.)
3. The SNI's Land Acquisitions
The SNI purchased the Niagara Falls site identified in the Compact on or about October 25, 2002, the same date the Compact was deemed approved by the Secretary. (Complaint ¶ 34.) Therefore, that site was owned by the SNI prior to the Chairman's approval of the Ordinance.
Almost three years after the Ordinance approval, on October 3, 2005, the Tribal Council of the SNI designated a Buffalo Footprint, "bounded to the North by Perry Street, to the East by. Chicago Street, to the South by Ohio Street, and to the West by Main Street," as the site for its Buffalo gaming facility. (Docket No. 25-4.) At about the same time, "the Seneca Erie Gaming Corporation (`SEGC'), a tribally chartered corporation formed for the purposes of developing, financing and operating the Nation's Class III Gaming Facility to be established on Nation territory in Erie County," purchased certain parcels of land within the Buffalo Footprint. Id.; see also, Docket Nos. 39-9 ¶ 24; 53-2 ¶ 24. The SEGC conveyed those parcels (hereinafter, "the Buffalo Parcel") to the SNI on October 3, 2005. (Docket No. 25-7.)
By letters dated October 3, 2005, the SNI notified the State of New York, County of Erie and City of Buffalo that it had acquired the Buffalo Parcel and advised *310 them of the 30-day comment period available under the SNSA. (Docket Nos. 25-13, -14 and -15.) Following the 30-day comment period, on November 7, 2005, the SNI sent to the Department of the Interior documents supporting its request that the Buffalo Parcel be placed in restricted fee status. (Docket No. 26.) The Secretary did not determine within 30 days after the comment period that the Buffalo Parcel "should not be subject to the provisions of section 2116 of the Revised Statutes (25 U.S.C. 177)." Thus, the Buffalo Parcel assumed restricted fee status by operation of law under the SNSA. (Docket Nos. 39-9 ¶ 30; 53-2 ¶ 30.)
C. The Lawsuit
Plaintiffs commenced this action on January 3, 2006, and were joined by Intervenor-Plaintiffs on June 2, 2006. As previously noted, the Plaintiffs and Intervenor-Plaintiffs make identical claims which are set forth in four counts in their respective complaints. They take issue with agency statutory interpretation and decision-making on a number of fronts, alleging that:
land acquired with SNSA funds and held in restricted fee is not subject to the governmental jurisdiction of the SNI and, therefore, cannot be "Indian lands" within the meaning of the IGRA (Complaint ¶¶ 54, 57-58)
land acquired with SNSA funds is not acquired as part of the "settlement of a land claim" because: 1) the lease dispute between the SNI and its non-Indian tenants was not a "land claim" within the meaning of the IGRA, and 2) the SNSA settlement was final upon the receipt of funds; no land was acquired (¶¶ 55, 56, 68)
the IGRA's "settlement of a land claim" exception does not apply to the Buffalo Parcel because the Parcel is not held in trust by the United States, as specified in the exception, but in restricted fee (¶¶ 46, 48, 53, 66-67)
the only possible exception to the after-acquired lands prohibition that might apply to the Buffalo Parcel requires that the Secretary determine whether a gaming establishment on newly acquired lands would be detrimental to the surrounding community, 25 U.S.C. § 2719(b)(1)(A), and she did not perform this duty (¶ 69).
Based on these allegations, Plaintiffs assert in their first claim that the NIGC Chairman acted arbitrarily and capriciously by failing to consider whether the SNI's proposed class III gaming would occur on "Indian lands," 25 U.S.C. § 2703(4), when he approved the Ordinance, and that the Secretary acted arbitrarily and capriciously when she declined to disapprove the Compact based on her erroneous interpretations of the IGRA and the SNSA. (Complaint ¶¶ 31, 33, 59, 62.)
In their second claim, Plaintiffs allege arbitrary and capricious action by the NIGC Chairman for failing to consider whether the SNI's proposed gaming would occur on, after-acquired lands, 25 U.S.C. § 2719, and by the Secretary for her failure to make required determinations under the IGRA's after-acquired lands provision and its exceptions. (Id. ¶¶ 31, 33, 70, 72.)
Plaintiffs assert in their third claim that an Environmental Impact Statement was required prior to placement of the Buffalo Parcel in restricted fee and that the Secretary and the NIGC Chairman have failed to comply with the NEPA. (Id. ¶¶ 75, 81-82.)
Finally, Plaintiffs' fourth claim alleges that Defendants were required to comply with the NHPA prior to permitting the Buffalo Parcel to attain restricted fee status, but failed to do so. (Id. ¶ 86.)
*311 Before considering the substance of these claims, the Court will consider those motions and arguments challenging the Court's subject matter jurisdiction.
III. DISCUSSION
In its Motion for Leave to File an Amicus Brief, the SNI argues that this action must be dismissed in its entirety pursuant to Federal Rule of Civil Procedure 19 because its presence is necessary and indispensable to a just adjudication of this action, but it cannot be joined as a party because of its sovereign immunity. The Government argues, as its first ground for dismissal, that the Quiet Title Act is applicable to this action and it therefore must be dismissed in its entirety for lack of subject matter jurisdiction. Because both of these arguments may be dispositive of all or some of the claims presented, they are considered first.
A. SNI'S Motion for Leave to File an Amicus Brief
1. Standard for Consideration of Amicus Curiae Participation
A district court has broad discretion to grant or deny an appearance as amicus curiae in a given case. United States v. Ahmed, 788 F.Supp. 196, 198 n. 1 (S.D.N.Y.1992), aff'd, 980 F.2d 161 (2d Cir. 1992). "`The usual rationale for amicus curiae submissions is that they are of aid to the court and offer insights not available from the parties." Onondaga Indian Nation v. State of New York, 97-CV-445, 1997 U.S. Dist. LEXIS 9168 at *7 (N.D.N.Y. June 25, 1997) (quoting United States v. El-Gabrowny, 844 F.Supp. 955, 957 n. 1 (S.D.N.Y.1994)). Judge Posner concisely described the circumstances under which an amicus brief is desirable in Ryan v. Commodity Futures Trading Comm'n:
An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.
125 F.3d 1062, 1063 (7th Cir.1997) (citations omitted).
Amicus participation goes beyond its proper role if the submission is used to present wholly new issues not raised by the parties. Onondaga Indian Nation, 1997 U.S. Dist. LEXIS 9168 at *8-9 (quoting Concerned Area Residents for the Env't v. Southview Farm, 834 F.Supp. 1410, 1413 (W.D.N.Y.1993)); Wiggins Bros., Inc. v. Department of Energy, 667 F.2d 77, 83 (Em.App.1981) (absent exceptional circumstances, amicus curiae cannot implicate issues not presented by the parties). Furthermore, "an amicus curiae is not a party and has no control over the litigation and no right to institute any proceedings in it, nor can it file any pleadings or motions in the case." NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 1068 (N.D.Cal. 2005) (citing United States v. Michigan, 940 F.2d 143, 163-4 (6th Cir.1991)).
2. The Propriety of SNI's Proposed Submission
The SNI seeks to participate as amicus curiae on the grounds that both it and the State of New York are necessary and indispensable parties to this action, they cannot be subject to compulsory joinder because of their sovereign immunity *312 and, therefore, this action must be dismissed in its entirety pursuant to Rule 19. Rule 19 dismissal is the sole subject of the amicus brief the SNI seeks to file.
As Plaintiffs[8] correctly observe, no party has raised the issue of Rule 19 dismissal and, absent exceptional circumstances, courts typically decline to consider issues raised only in an amicus brief. Plaintiffs urge that this procedural infirmity alone is a sufficient basis to reject the SNI's request.
This Court finds it is appropriate to accept the SNI's brief and consider its position for two reasons. First, the issue of indispensability is one that courts have an independent duty to consider sua sponte, if there is reason to believe dismissal on such grounds may be warranted. Enterprise Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 892-3 (10th Cir.1989); see also, Havana Club Holding, S.A. v. Galleon S.A., 974 F.Supp. 302, 311 (S.D.N.Y.1997) ("when a court believes that an absentee may be needed for a just adjudication, it may raise compulsory party joinder on its own motion"). In light of the Court's independent duty, the SNI's brief may be helpful in ascertaining whether the SNI is necessary and indispensable such that, in equity and good conscience, the case should be dismissed.
Second, the SNI urges that were this Court to deny its motion and decline to consider its argument, the only avenue the SNI would have to raise the Rule 19 issue would be to move to intervene in this action.[9] It would then risk waiving the very basis for its argument that the SNI is an independent sovereign that cannot be joined in this action.
In this Court's view, the SNI had another option available to it. As other tribes have done, it could have moved to intervene for the sole purpose of seeking Rule 19 dismissal. See Lebeau v. United States, 115 F.Supp.2d 1172 (D.S.D.2000); see also, Kansas v. United States, 249 F.3d 1213, 1220 (10th Cir.2001) (tribe reserved right to claim sovereign immunity and intervened only for purposes of joining Government's jurisdictional challenge and raising Rule 19 indispensability issue). Nevertheless, as a practical matter, requiring the SNI to resubmit its motion in a form Plaintiffs might consider procedurally correct would not alter the posture of this case. Were the SNI to move to intervene solely to seek Rule 19 dismissal, that issue still would be presented to this Court by an entity claiming sovereign immunity with respect to the underlying claims.
In light of the Court's independent duty to consider possible Rule 19 issues, the inefficiencies attendant to elevating form over substance, and the Court's broad discretion to grant or deny amicus motions, this Court finds it appropriate to accept the SNI's brief and consider whether its or the State's joinder is needed for a just adjudication, thereby necessitating dismissal of this action or certain of the claims therein. This result is not unprecedented. See NGV Gaming, Ltd., 355 F.Supp.2d at 1067-69 (after reminding Indian tribe of the limits of amicus participation, *313 court considered Rule 19 issue raised solely in amicus brief); Artichoke Joe's Cal. Grand Casino, 353 F.3d at 719 at n. 10 (after stating that there were no exceptional circumstances warranting consideration of a Rule 19 argument raised only in amicus brief, the Ninth Circuit went on to consider whether nonparty tribes' interests were adequately represented in the case).
3. The Analytical Framework
It is well-settled that a determination of whether a non-party is needed for just adjudication of a dispute involves a two-part inquiry. Here, this Court must first decide whether the SNI and/or the State is a "necessary" party that should be joined under Rule 19(a).
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest.
FED.R.CIV.P. 19(a).
If it is determined that neither sovereign is necessary, this Court need go no further. However, if either or both are "necessary," sovereign immunity will prevent the compulsory joinder contemplated in Rule 19(a). This Court must then determine "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." FED.R.CIV.P. 19(b).
Rule 19(b) sets forth four factors to consider in determining indispensability:
[F]irst, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
"[T]he question whether a party is indispensable `can only be determined in the context of particular litigation.'" American Greyhound Racing, Inc. v. Hull; 305 F.3d 1015, 1018 (9th Cir.2002) (quoting Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 19 L.Ed.2d 936 {1968)). "Such a determination rests in the discretion of the trial judge applying `equity in [sic] good conscience' to the facts at hand." Fluent v. Salamanca Indian Lease Auth., Civ. 90-1229A at 10 (W.D.N.Y. filed Jan. 25, 1991), aff'd, 928 F.2d 542 (2d Cir.1991)).
For the reasons stated below, this Court finds that neither the SNI nor the State of New York is necessary to a just adjudication of Plaintiffs' claims.
4. The Necessary Party Determination
With respect to the first consideration under Rule 19(a), it is clear from a review of the Complaint that complete relief can be accorded among the persons already parties to this action in the absence *314 of the SNI and the State. The absence of either or both would not prevent Plaintiffs from receiving the declaratory and injunctive relief requested relative to the Secretary's and the NIGC's actions. See. Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1258-59 (10th Cir.2001), cert. denied sub nom, Wyandotte Nation v. Sac and Fox Nation of Missouri, 534 U.S. 1078, 122 S.Ct. 807, 151 L.Ed.2d 693 (2002). The SNI does not argue otherwise.
What the SNI does contend is that it has three significant interests "relating to the subject of the action" which makes it a necessary party. First, it asserts an interest in "the validity of the gaming compact that [the SNI and the State] duly negotiated and executed." (Docket No. 44 at 14.) According to the SNI, a key feature of the Compact is its authorization of gaming on lands in Buffalo and the SNI has an interest in the continued viability and operation of that provision.[10]Id. Second, the SNI claims an "interest in vindicating its rights under the [SNSA]." Id. at 15. The SNI states that Plaintiffs are challenging its sovereign authority over the Buffalo Creek Territory and that "this challenge . . . goes to the core of the Settlement Act, which expressly contemplates that the [SNI] will enjoy governmental authority over lands acquired pursuant to it. . . ." Id. at 14-15. Finally, the SNI argues that the Plaintiffs' allegation that the Chairman's approval of the Ordinance violates the IGRA implicates its "governmental interest in the validity of its own laws." Id. at 15.
Contrary to the SNI's characterization, this action does not lie in contract. Plaintiffs' challenge to the Secretary's approval of the Compact does not call into question the sovereign capacity of the SNI and the State to contract, or the adequacy and validity of their negotiated agreement understate contract law principles.[11] Similarly, Plaintiffs do not challenge the SNI's right to acquire land in Buffalo and have it placed in restricted fee status under the SNSA, nor do they allege that the SNI was without authority to adopt a gaming ordinance or that it failed to comply with its own laws when it did so. Rather, Plaintiffs are squarely challenging first, the Secretary's determination that the Buffalo Parcel purchased with SNSA funds is gaming-eligible Indian lands, and second, the NIGC's approval of the Ordinance, which allegedly did not include any determination on that issue.[12]
*315 This does not mean the SNI does not have an interest relating to the subject matter of this action. In this Court's view, the SNI certainly has an interest in its ability to use property that it owns in the City of Buffalo in the manner it wishes; namely to construct and operate a class III gambling casino.[13] However, the SNI is not a necessary party unless that interest will, as a practical matter, be impaired or impeded by this suit.
It is well-settled that potential impairment may be minimized if the absent person is adequately represented by a party to the action. Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.1990) (citing Wichita and Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 774 (D.C.Cir.1986)). More specifically, the United States may adequately represent an Indian tribe unless there is a conflict between the United States and the tribe. Wichita, 788 F.2d at 774-75. The Department of the Interior, as trustee for Indian tribes, has an interest in Indian self-government, including tribal self-sufficiency and economic development, that makes it uniquely qualified to represent a tribe's interests unless there is the clear potential for inconsistency between the government's obligations to the tribe and its other obligations in the context of the pending case. Artichoke Joe's, 216 F.Supp.2d at 1118-19 (citations omitted); see also, Seneca Nation of Indians v. New York, 213 F.R.D. 131, 137 (W.D.N.Y.2003) ("in the unique context of enforcing restrictions on the alienation of Indian lands, the United States is best situated to provide complete representation of tribal interests and no other party is necessary") (citing Heckman v. United States, 224 U.S. 413, 444-45, 32 S.Ct. 424, 56 L.Ed. 820 (1912)).
In light of the arguments presented in Defendants' Motion to Dismiss and in their *316 vigorous defense against Plaintiffs' Motion for Summary Judgment, it is evident that the Government's interest in defending the propriety of the Secretary's conclusion that the Buffalo Parcel is gaming-eligible Indian lands, and the NIGC Chairman's Ordinance approval is substantially similar, if not identical, to the SNI's interest in conducting class III gaming on that Parcel. See Sac and Fox Nation, 240 F.3d at 1259 (Secretary's interest in defending decision to acquire tract in trust for tribe and its conclusion that tract was gaming-eligible was virtually identical to tribe's interest in conducting gaming; thus any potential impediment or prejudice to tribe was greatly reduced); Kansas, 249 F.3d 1213 (10th Cir.2001) (government's interest in defending NIGC's Indian lands determination sufficiently similar to tribe's interest in conducting gaming on land to provide adequate representation). See also, Artichoke Joe's, 216 F.Supp.2d at 1118 (while tribes could claim a legal interest in lawsuit challenging validity of compacts between tribes and State, they were not necessary parties where their legal interest could be adequately represented by the Secretary); Southwest Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir.1998) (tribe was not a necessary party to suit seeking to halt flooding of area where it had right to store water because Secretary and municipal defendants could adequately represent tribe's interest).
The SNI points to no conflict of interest here, but does allege that it is unclear whether the Government will make each and every argument it would make were it a party in the case. Specifically, the SNI states that it disagrees with the Government's interpretation of the IGRA's afteracquired lands prohibition, 25 U.S.C. § 2719(a) ("gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988"). (Docket No. 56 at 8-9.) While that may be, all parties to this lawsuit are in accord as to the meaning of the cited provision; its interpretation is not in dispute. Thus, this Court concludes that the interests of the Government and the SNI are so aligned as to the matters actually in dispute that any concern about impairment to the tribe's ability to protect its interest in this litigation is alleviated.[14]See Southwest Ctr. for Biological Diversity, 150 F.3d at 1154 (fact that municipal defendants and non-party tribe disagreed as to interpretation of a settlement agreement had no *317 bearing on defendants' ability to represent tribe's interests on the merits of the action where interpretation of settlement agreement was not in dispute).
Of course, the foregoing analysis does not dispose of the question of the State's interest. The SNI asserts that it is common for a movant to identify, describe and mount arguments based on the interests of an absent sovereign. (Docket No. 44-2 at 3, n. 1.) However, it then goes on to state that it does not purport to speak for the State here and merely suggests, in conclusory terms, that the State has an "interest" in its anticipated contractual benefits of revenue-sharing and regulatory input. Id. at n. 1 and p. 14.
As has already been determined, this action does not question the validity of or seek to nullify the Compact. Moreover, the SNI has not sought to explain, nor can this Court fathom, how this litigation would invalidate any of the Compact's revenue-sharing or regulatory provisions. Although the State's anticipated revenue likely would be diminished should it ultimately be determined that the Buffalo Parcel is not gaming-eligible Indian lands,[15] it is well-settled that "the prejudice to an absent party must be more than merely financial to weigh in favor of dismissal under Rule 19(b)." Pueblo of Sandia v. Babbitt, 47 F.Supp.2d 49, 53 (D.D.C. 1999) (citing Makah, 910 F.2d at 558 (9th Cir.1990)). In this Court's view, where a contract term remains unaltered, but the monetary benefit is less than anticipated, the consequence is merely financial.
This Court also has considered what interest the State may have as this action is properly framed; as a challenge to agency action under the APA and the IGRA with respect to the Buffalo Parcel. The IGRA's legislative history notes that its enactment was prompted, in part, by states' concerns over the potential for criminal elements to infiltrate Indian gaming activities and their desire to regulate such activities consistent with their own public policy, safety, law enforcement and regulatory interests. S.Rep. No. 100-446 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3075-76, 3083. Assuming New York State has the same interests and concerns identified by Congress in 1988, there is no aspect of Plaintiffs' challenge to federal agency action that will impair the State's ability to regulate, by tribal-state compact, the conduct of class III gaming activities on gamingeligible Indian lands. Accordingly, this Court finds that the State is not necessary to a just adjudication of this suit.
Finally, the SNI has not argued, and this Court is not otherwise convinced, that any party to this suit would be subjected to a substantial risk of multiple or inconsistent obligations in the absence of the SNI or the State.
For the reasons stated, this Court finds that neither the SNI nor the State of New York is a necessary party to this action. In light of this determination, there is no need to conduct the Rule 19(b) four factor indispensability analysis. See MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377 (2d Cir.2006) (citing Viacom Int'l, Inc. v. Kearney, 212 F.3d 721, 724 (2d Cir.2000) ("If a party does not qualify as necessary under Rule 19(a), then the court need not decide whether its absence warrants dismissal under Rule 19(b).")); NGV Gaming, Ltd., 355 F.Supp.2d at 1069, n. 8 (tribe was not a necessary party and, *318 therefore, court declined to proceed to question of indispensability); Artichoke Joe's, 216 F.Supp.2d at 1120, n. 47 (because court found that tribes were not necessary parties, it declined to consider whether they were indispensable under Rule 19(b)).
B. Subject Matter Jurisdiction
In its Motion to Dismiss, the Government urges that this Court lacks subject matter jurisdiction over this action because, based on the nature of the claims presented, the United States has not waived its sovereign immunity to suit. Defendants rely on the Quiet Title Act ("QTA"), 28 U.S.C. § 2409a, which provides, in pertinent part, that:
The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights. This section does not apply to trust or restricted Indian lands. . . .
28 U.S.C. § 2409a(a) (emphasis supplied); see United States v. Mottaz, 476 U.S. 834, 843, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986) (when U.S. claims interest in real property based on its status as trust or restricted Indian land, the QTA does not waive government's immunity).
According to the Government, the QTA applies because Plaintiffs are seeking a determination that would remove the Buffalo Parcel from restricted fee status. (Docket No. 22-2 at 11, 14, 16.) The Government does acknowledge that Plaintiffs are not explicitly seeking to quiet title to the Buffalo Parcel and are not claiming any adverse ownership interest in the property. But it contends, nevertheless, that this case falls within the QTA's reservation of immunity. (Id. at 11.)
As the Government correctly notes, this Court must focus on the nature of the relief requested in considering the QTA's applicability. Mottaz, 476 U.S. at 843. If the true purpose of the litigation is to challenge title, then the QTA applies no matter how the claims are characterized. See Ducheneaux v. Sec'y of Interior, 837 F.2d 340 (8th Cir.1988) (suit brought under APA in which individual claimed an adverse ownership interest in land held in trust by United States was barred by QTA); Florida Dep't of Bus. Regulation v. United States DOI, 768 F.2d 1248 (11th Cir.1985) (suit brought under APA which sought to divest United States of title to land it had taken into trust was barred by QTA)"
In reviewing Plaintiffs' Complaint here, this Court finds that there is no challenge to the title to the Buffalo Parcel, express or implied, in the claims or the requested relief. As Defendants appear to concede, the claims brought under the IGRA challenging the Secretary's and NIGC Chairman's decisions to approve the Compact and Ordinance (claims One and Two) have nothing to do with the SNI's acquisition of title to the Buffalo Parcel some three years afterward and its placement in restricted fee status. (Docket No. 22-2 at 13.) Even were this Court to determine that the NIGC's or Secretary's actions were arbitrary and capricious, the SNI would retain title to the Buffalo Parcel in restricted fee.[16]
*319 In their NEPA and NHPA claims (Three and Four), Plaintiffs allege that "the actions of the defendants which placed the Buffalo [Parcel] in restricted fee . . . required the preparation of an Environmental Impact Statement" and that "Defendants violated the NHPA by failing to consult with the Advisory Council for Historic Preservation" prior to permitting the Buffalo Parcel to attain restricted fee status. (Complaint at ¶¶ 75, 86.) Though not expressly requested in Plain tiffs' prayer for relief, this Court notes, that a finding that the Government was required to comply with NEPA and NHPA prior to placing the Buffalo Parcel in restricted fee status could result in the reversal or vacatur of that agency action.[17]
Nevertheless, as set forth in the undisputed Factual Background, supra at 307-09, the SNI acquired the Buffalo Parcel on October 3, 2005, and only afterward requested that the Parcel be placed in restricted fee status. A determination on the validity of the latter action in no way divests the SNI of its earlier-acquired title to the property.[18] Whether the property is held in fee simple or restricted fee, this lawsuit does not challenge the SNI's ownership of the Buffalo Parcel and the SNI will retain title regardless of the outcome of this action.[19]
Although the Government attempts to distinguish this case on its facts from Kansas v. United States, 249 F.3d 1213 (10th Cir.2001), this Court finds the reasoning of that case applicable here. In Kansas, the plaintiffs challenged the, NIGC Chairman's decision that a tract of non-reservation land was "Indian lands" within the meaning of the IGRA. The Tenth Circuit first noted that "only disputes pertaining to the United States' ownership of real property fall within the parameters of the QTA." Id. at 1224 (citing Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir.1990) ("Any challenge to a non-ownership interest in real property is not precluded by the QTA.")). The Court went on to hold that:
[A]djudicating the question of whether a tract of land constitutes "Indian lands" for Indian gaming purposes is conceptually quite distinct from adjudicating title to the land. One inquiry has little to do with the other as land status and land title are not congruent concepts in Indian law. A determination that a tract of land does or does not qualify as "Indian lands" within the meaning of IGRA in no way affects title to the land. Such a determination would merely clarify sovereignty over the land in question.
Id. at 1225 (internal citations and quotation marks omitted). See also, Neighbors *320 for Rational Dev., Inc. v. Norton, 379 F.3d 956, 965 (10th Cir.2004) (QTA precluded plaintiffs' suit to the extent it sought to nullify the United States' acquisition of trust land, but request for injunction preventing development of property until the Secretary complied with NEPA would not be precluded).
So, too, the question of fee simple versus restricted fee is one of sovereignty, rather than ownership. Assuming that the Buffalo Parcel is restricted Indian land such that the United States claims an interest, the Parcel's title is not in danger of divestiture as a consequence of this lawsuit and, therefore, the QTA is not applicable. Accordingly, Defendants' motion to dismiss this action in its entirety for lack of subject matter jurisdiction is denied.
C. APA Review
Plaintiffs bring their claims primarily under the APA, and request that this Court review various agency actions, alleged failures to act and statutory interpretations by the NIGC and the Secretary that are claimed to be deficient or erroneous. The APA provides that a reviewing court must "set aside agency action" that is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(a).
Among their opposing arguments, Defendants urge that the NIGC's failure to make an Indian lands determination is unreviewable because the NIGC is not statutorily required to make such a determination in the first place; the NIGC's approval of tribal gaming ordinances is subject to only limited review; the Secretary's November 12, 2002 opinion letter is not a final agency action and is therefore unreviewable; and even if reviewable, the Secretary's statutory interpretation is entitled to deference.
In light of the centrality of the APA to the allegations in the Complaint and the issues and arguments raised in the parties' respective motions, this Court must first consider its role when confronted with such challenges to agency action.
1. Standard of Review
Where the agency decisions at issue involve interpretations of federal statutes the agency administers, the court's review is guided by the principles announced in Chevron, U.S.A., Inc. v. Natural Res. Defense Council Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron confirmed that "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Id. at 843 n. 9, 104 S.Ct. 2778. Thus, courts are to look first to "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778.
If the intent of Congress is clear, that is the end of the matter; for the Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be, necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Id. at 842-43, 104 S.Ct. 2778.
Where an agency has been delegated authority to elucidate the statute by regulation, its "regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to *321 the statute." Id. at 844, 104 S.Ct. 2778. However, the Chevron deference that is accorded to regulations adopted by formal rule-making does not apply to all forms of agency interpretations. Schneider, 345 F.3d at 142 (citing Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)). Interpretations such as opinion letters, policy statements, agency manuals and enforcement guidelines lack, the force of law and do not warrant Chevron-style deference. Christensen, 529 U.S. at 587, 120 S.Ct. 1655. Rather, interpretations contained in such formats are entitled to respect under the Supreme Court's decision in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that, through the writer's thoroughness, logic, expertise, consideration of prior interpretations and the like, the interpretation at issue has the power to persuade. United States v. Mead Corp., 533 U.S. 218, 235, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).
When a court is asked to review the reasonableness of an agency's decisionmaking action, its inquiry is governed by Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983):
The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action . . . Normally, an agency [action] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Id. at 43, 103 S.Ct. 2856 (citations and quotation marks omitted) (alteration added).
2. Review of Final Agency Action under the IGRA
It is first to be noted that Section 704 of the APA provides for review as follows:
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject, to judicial review. A preliminary, procedural or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.
Significantly, the IGRA expressly provides for APA review:
Decisions made by the [NIGC] pursuant to sections 2710, 2711, 2712, and 2713 of this title shall be final agency decisions for purposes of appeal to the appropriate Federal district court pursuant to chapter 7 of Title 5.
25 U.S.C. § 2714. Thus, the NIGC Chairman's approval of the SNI's Ordinance pursuant to 25 U.S.C. § 2710(d) is a final agency action for purposes of reviewing both the reasonableness of the Chairman's decision-making and the permissibility of any statutory construction he may have undertaken in this case.
In enacting the IGRA, Congress established the NIGC as an independent agency charged with exclusive regulatory authority for Indian gaming on Indian lands. Id. §§ 2702(3), 2704; Sac and Fox Nation, 240 F.3d at 1265 (though nominally under the Department of the Interior, NIGC functions as an independent entity); NIGC website (www.nigc.gov/AboutUs/ tabid/56/Default.aspx) (NIGC is "an independent federal regulatory agency of the *322 United States"). NIGC is charged with, among other things, "promulgating such regulations and guidelines as it deems appropriate to implement the provisions" of IGRA and, by implication, has primary authority to interpret any ambiguous phrases or terms contained in the IGRA. 25 U.S.C. § 2706(b)(10). Since the NIGC is the agency expressly charged by Congress with administering the IGRA, this Court finds that a NIGC interpretation of IGRA provisions is properly afforded Chevron deference.
On the other hand, the Secretary is delegated only some duties under the IGRA, and none of those duties are identified in § 2714 as final agency actions. As such, the views set forth in the Secretary's November 12, 2002 opinion letter do not represent the final product of agency deliberation as to whether the Buffalo Parcel is gaming-eligible Indian lands. Miami Tribe of Oklahoma v. United States, 198 Fed.Appx. 686 (10th Cir.2006) (DOI opinion letter on tribe's sovereignty over land for purposes of the IGRA was not final agency action). However, the Secretary's opinion letter does represent an intermediate step in a process that eventually should result in a final action.[20]Id. at 688.
Where final agency action has occurred, the Secretary's letter is reviewable under the APA. 5 U.S.C. § 704. There is no deference owed to the Secretary's interpretation of the IGRA's terms on such review, however, because neither the Secretary nor the Department of the Interior is charged with that statute's administration. Sac and Fox Nation, 240 F.3d at 1265-66 (Secretary's decision to acquire land in trust pursuant to 25 U.S.C. § 465 was final agency action within his purview, but court declined to give any deference to Secretary's related opinion that the land was gaming eligible "Indian lands" for purposes of the IGRA where he does not administer that statute).
D. The NIGC'S Approval of the SNI's Tribal Gaming Ordinance
It is Plaintiffs' position in this lawsuit that land acquired with SNSA funds, as the Buffalo Parcel was,[21] is not subject to the SNI's governmental jurisdiction and, therefore, does not fall within the IGRA's definition of "Indian lands." (Complaint ¶¶ 54, 59.) Moreover, even if it did, Plaintiffs argue the Buffalo Parcel is not gaming-eligible Indian land because it was not "taken into trust as part of a settlement of a land claim" and, therefore, is not excepted from the prohibition on gaming on lands acquired after October 17, 1988. (Id. ¶¶ 67-68.) Given those deficiencies, according to Plaintiffs, the NIGC Chairman acted arbitrarily and capriciously when he approved the Ordinance without making an "Indian land" determination with respect to property the SNI intended to acquire for gaming purposes. (Id. ¶¶ 60, 62, 72.)
Here, the Government has moved to dismiss all claims against the NIGC and its Chairman pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. With respect to Plaintiffs' IGRA claims, the Government argues that the Chairman was presented with a tribal gaming ordinance that did not specify gaming sites,[22]*323 and he therefore was mandated to approve the Ordinance so long as: 1) it met all technical requirements for submission, and 2) neither of the statutorily specified reasons for disapproval were present. (Docket No. 22-2 at 32-34); see generally, 25 U.S.C. § 2710(d). In sum, the Government urges that because Plaintiffs do not allege any error with respect to those limited considerations, and for that reason alone, Plaintiffs' IGRA claims must be dismissed for failure to state a claim.
In addition, at oral argument, the Government argued that there is no provision of the IGRA that requires the Chairman to make an Indian lands determination. Thus, if a tribe proceeds to conduct gaming on non-Indian lands in violation of the IGRA, the NIGC is to deal with the issue on the enforcement side of the statute. (Tr. 34-35.)
Plaintiffs' response to the Government's arguments is cursory. It simply directs the Court to paragraph 60 of the Complaint (NIGC failed to make an Indian lands determination) and their Summary Judgment Motion (a concluding paragraph which states that approval of the Ordinance was "arbitrary, capricious, an abuse of discretion, contrary to law, and in violation of procedures required by law"). (Docket No. 39-10 at 34-35.)
Against this backdrop, this Court sought to ascertain at oral argument whether Plaintiffs had "abandoned their claims against the NIGC Defendants. Plaintiffs disclaimed abandonment and urged that an Indian lands determination is "an overarching requirement of IGRA." (Tr. 82-83.) They also argued, generally, that "there's never been a proper determination" on whether the Buffalo Parcel is gaming-eligible Indian lands. (Id. ¶ 33.) Because Plaintiffs have disclaimed abandonment, this Court necessarily turns to an examination of the sufficiency of the Government's arguments for dismissal:
The first issue that must be addressed is the Government's contention that the IGRA does not require the NIGC to make "Indian lands" determinations in connection with ordinance reviews. It is evident from a plain reading of the IGRA that the NIGC's jurisdiction extends only to Indian gaming that occurs on Indian lands. 25 U.S.C. §§ 2701(3), 2702(3) (Congress notes absence of, and finds need for, establishment of independent regulatory authority for gaming on Indian lands) (emphasis supplied). Class III gaming is lawful only "on Indian lands" and only if an ordinance authorizing such gaming "is adopted by the governing body of the Indian tribe having jurisdiction over such lands." Id. § 2710(d)(1) (emphasis supplied).
When the Chairman is presented with an ordinance, the statute directs that he act on it within 90 days. Id. § 2710(e). He must approve an ordinance where the tribe's submission comports with § 2710(d)(2)(A). Id. § 2710(d)(2)(B). The requirements are that: 1) the tribe is proposing to engage in class III, gaming activity on Indian lands of the Indian tribe, and 2) its governing body has adopted an ordinance that meets the requirements of § 2710(b). The first requirement clearly necessitates a determination that gaming is proposed to be sited on Indian lands over which the tribe has jurisdiction.
Beyond that, the findings, purpose and language of the IGRA relative to the NIGC's jurisdiction implicitly require such a determination. Whether proposed gaming *324 will be conducted on Indian lands is a critical, threshold jurisdictional determination of the NIGC. Prior to approving an ordinance, the NIGC Chairman must confirm that the situs of proposed gaming is Indian lands. If gaming is proposed to occur on non-Indian lands, the Chairman is without jurisdiction to approve the ordinance.
The Court also expressly rejects the Government's "no harm, no foul" approach at oral argument. There, the Government urged that if a tribe is "violating IGRA in that they're gaming on lands acquired after 1988, or lands that are not Indian lands," the NIGC can conceivably go in "and say, you know, we've changed our minds, we don't think this parcel is [Indian lands] and have an enforcement action. . . ." (Tr. 25-26; also, 34-35.)
This Court disagrees. In fact, such an enforcement action appears to be an impossibility. Because the NIGC's jurisdiction is limited to oversight of gaming on Indian lands, its civil enforcement powers can not extend to gaming on non-Indian lands. This jurisdictional limitation is reflected in the NIGC's own regulations, which provide for closure orders and fines in a number of circumstances involving violations of the IGRA, such as where a tribe fails to pay required fees; operates a gaming facility without an approved tribal ordinance, tribal-state compact or management contract, where required; operates a Class II gaming machine without a license from a tribe in violation of 25 C.F.R. § 558; fails to have proper background investigations or licenses pursuant to 25 C.F.R. § 558.3; or where there is evidence of fraud. 25 C.F.R. §§ 573 and 575. Conspicuously absent from the NIGC's own list is any reference to enforcement relative to the conduct of Indian gaming on non-Indian lands.
In sum, the NIGC is the gatekeeper for gaming on Indian lands and, when acting on a tribal gaming ordinance, it has a duty to, make a threshold jurisdictional determination. If, by the Chairman's action or inaction, a tribe establishes a gaming operation on non-Indian lands, it follows that the NIGC has no jurisdiction thereafter to fine or close that unlawful operation. Accordingly, the Court determines that the Government's motion to dismiss on the ground that the IGRA does not require the NIGC Chairman to make an Indian lands determination when acting on a gaming ordinance must be denied.
Having found that the NIGC Chairman has a duty to determine whether a tribe's proposed gaming will occur on Indian lands before affirmatively approving an ordinance, this Court now turns to the question of the reasonableness of the Chairman's decision-making in this case. According to the Government, the Chairman acted appropriately and in conformance with the law when he approved the Ordinance here because the SNI proposed to game on "lands of the Nation" generally, and defined "Nation lands" as having the meaning found in the IGRA, 25 U.S.C. § 2703(4). (Docket No. 17-5 ¶¶ 3, 4.) This Court has reviewed the NIGC's administrative record as a whole, and concludes that it does not support a finding of reasonableness as to the Chairman's actions.
The NIGC Chairman approved the SNI's Ordinance on November 26, 2002. This Court first notes that the Secretary did not forward a copy of her November 12, 2002 opinion letter to the NIGC. (Docket No. 25-2.) Moreover, the NIGC's administrative record is devoid of any indication that the NIGC otherwise received notice of the Secretary's opinion that real property the SNI, intended to purchase with SNSA funds and hold in restricted fee pursuant to the SNSA would qualify as *325 gaming-eligible Indian lands under the IGRA. (Docket No. 17, generally.) Thus, the record fails to support or even suggest that the NIGC considered and adopted the Secretary's opinion.
The Government argues, however, that the Chairman's role here was limited to considering what appeared on the face of the SNI's duly adopted gaming ordinance; which proposed gaming on "Nation lands" meeting the IGRA's Indian lands definition. (Docket No. 22-2 at 34.)
But, as the Government also notes, a tribe's ordinance will not pass muster unless it meets numerous content, submission, authenticity and reliability requirements. Id. at 32-33; 25 U.S.C. § 2710(b)(2)-(3); 25 C.F.R. §§ 522.2, 522.6. The tribal-state compact is one of the requisite submissions. In this case, the Compact specifically sets forth the SNI's intent to acquire new land for gaming, circumscribes the locations in which such purchases can be made, and defines both the manner in which the land will be acquired and the status in which it will be held.[23]
The Government suggests in its argument that the Chairman has discharged his duty by simply ascertaining that a tribe and state have entered into a compact under 25 U.S.C. § 2710(d)(3); he is not obliged to actually review the compact. This Court expresses no view on whether such limited review, as a general principle, may sometimes be sufficient. What is clear from the record here, though, is that the Ordinance and Compact were submitted to the Chairman as an integrated document, thereby necessitating the Chairman's review of the Compact in this case. In a memorandum to the NIGC Chairman,[24] the SNI's counsel stated:
Th[is] memorandum has been prepared to simplify and expedite the review and approval of the Seneca Nation of Indians Class III Gaming Ordinance of 2002 (Ordinance). While the Ordinance itself addresses the majority of those requirements found in IGRA and the National Indian Gaming Commission's (NIGC) implementing regulations, some required items and, provisions are found in the "Nation-State Gaming Compact Between The Seneca Nation of Indians and the State of New York" (Compact), executed on August 18, 2002, and its related Appendices. Because the Appendices to the Compact are extremely long and technical, we have prepared the attached memorandum identifying where each statutory and regulatory requirement is satisfied and/or addressed in the Ordinance and/or the Compact and its Appendices.
(Docket No. 17-1 at 1.) (emphasis supplied).
*326 Here, the Chairman could not have ascertained that all statutory and regulatory submission and content requirements had been met without reviewing the Compact, That review would necessarily have brought the anticipated land purchases, their status as post-1988 land acquisitions, their locales, their method of purchase and their anticipated restricted fee status to the Chairman's attention. In light of these circumstances, there are only two conclusions reasonably to be drawn; either the Chairman did not review the Compact and therefore did not adequately ascertain that all prerequisites to ordinance approval were met,[25] or he did review the Compact and failed to consider whether the NIGC had jurisdiction to approve an ordinance for gaming on the after-acquired properties identified for purchase therein. The fact that no Indian lands or gaming eligibility determinations were made with regard to the to-be-acquired Compact sites is apparent from the Chairman's one-page approval letter, which merely states, without discussion, that lilt is important to note that the gaming ordinance is approved for gaming only oh Indian lands, as defined in the IGRA, over which the Nation has jurisdiction." (Docket No. 17-10.)
For the reasons stated, the Government's motion to dismiss Plaintiffs' IGRA claims for failure to state a claim against the NIGC and its Chairman is denied. Beyond that, based on this record, this Court must conclude that the information presented to the NIGC Chairman and the manner in which it was presented was sufficient to require that he: 1) make an Indian lands determination regarding the to-be-purchased sites identified in the Compact before acting on the Ordinance, and 2) provide a reasoned explanation for his conclusions. Absent the Chairman's consideration and explanation of this critical jurisdictional issue, this Court has no basis upon which it can conclude that the Chairman's approval of the Ordinance was the result of reasoned decision-making. Accordingly, this Court is compelled to find that the Ordinance approval with respect to the Buffalo Parcel was arbitrary and capricious.
The foregoing conclusions, necessarily reached in considering the Government's arguments on its Motion to Dismiss, also require that this Court take some further action. It is noted that Plaintiffs' requested relief is not in accord with the conclusions reached herein.
For example, Plaintiffs request that this Court set aside the decision of "the Chairman of the [NIGC], approving the Seneca Nation Class III Gaming Ordinance." (Complaint, Prayer for Relief ¶ 7(b).) This request is far too broad, particularly in light of Plaintiffs' statements at oral argument that the SNI is lawfully gaming on its Allegany Reservation and that Plaintiffs are challenging the ordinance "just to the extent that [it is] applied to th[e Buffalo] parcel." (Tr. 91:12-17.)
Furthermore, this Court understands that its proper role on APA review is to consider the decision-making and/or statutory interpretation involved in a final agency action. Absent any evident consideration of the "Indian lands" issue or any statutory interpretation of the IGRA by the NIGC in this case, it would be premature to cede to Plaintiffs' request that this Court interpret the IGRA and declare that lands acquired by the SNI pursuant to the SNSA are not "Indian lands" within the meaning of the statute. (Prayer for Relief *327 ¶ 1.) This is a determination that the NIGC must have an opportunity to make in the first instance, in that it is charged with administering and interpreting the statute.
In keeping with the proper allocation of responsibilities between federal agencies and the courts, this Court finds it is appropriate to vacate only that portion of the NIGC Chairman's approval of the Seneca Nation of Indians Class III Gaming Ordinance of 2002 as Amended that permits gaming on land "in Erie County, at a location in the City of Buffalo to be determined by the Nation" (Compact ¶ 11(a)(2)), and to remand the matter to the NIGC for further consideration consistent with this opinion.[26]See Immigration and Naturalization Serv. v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (generally, court should remand case to agency for decision on a matter that statutes place primarily in agency hands; agency can bring expertise to bear upon matter and can, through informed discussion and analysis, "help a court later determine whether its decision exceeds the leeway the law provides"); Grand Traverse Band of Ottawa and Chippewa Indians v. United States, 46 F.Supp.2d 689, 706-707 (W.D.Mi.1999) (district court applied primary jurisdiction doctrine to seek NIGC determination on whether casino was sited on gaming-eligible Indian lands in light of the NIGC's special competence and its charge to interpret and apply the IGRA); Miami Tribe of Oklahoma v. United States, 5 F.Supp.2d 1213, 1217-19 (D.Kan. 1998) (reversing and remanding NIGC decision to disapprove management contract because parcel was not Indian lands where NIGC failed to provide a reasoned explanation for its decision).
On remand, the NIGC Chairman is instructed to determine whether the Buffalo Parcel is "Indian lands" as defined in the IGRA; to consider, if necessary, the applicability of section 20 of the IGRA, 25 U.S.C. § 2719, to the Buffalo Parcel; and to provide an explanation of the bases for his determinations. The Chairman's Ordinance approval remains in effect as to all other sites identified in the Compact.[27]
E. The Remaining Claims and Motions
The Government repeatedly has urged, and this Court agrees, that the Secretary's November 12, 2002 letter is merely a legal opinion that does not constitute final agency action under the IGRA for purposes of APA review. There is no basis in the record from which this Court can conclude that the NIGC considered any of the opinions expressed in the Secretary's letter or took any other action with respect to an Indian lands determination. Because there has been no final agency determination as to whether land purchased in the City of Buffalo with SNSA funds is gaming-eligible Indian lands, Plaintiffs' challenge to the Secretary's intermediate statutory interpretations is premature and this Court is without jurisdiction *328 to review her opinions at this juncture. Miami Tribe of Oklahoma, 2006 U.S.App. LEXIS 21524. Accordingly, Plaintiff's IGRA claims (One and Two) against the Secretary are dismissed for lack of subject matter jurisdiction.
Plaintiffs' NEPA and NHPA claims against all Defendants, and their IGRA claims against Defendant James Cason, are predicated on agency actions that permitted the SNI to construct and operate an Indian gambling casino on the Buffalo Parcel. Having vacated and remanded the Chairman's Ordinance approval to the extent it authorizes gaming on land "in Erie County, at a location in the City of Buffalo," these claims are now moot and are dismissed in their entirety. Given this dismissal, Plaintiffs' Motion for Summary Judgment is denied as moot. Finally, because this Court had no need to consider Plaintiffs' extra-record exhibits or its Memorandum in Support of Summary Judgment in reaching its determinations herein, the Government's Motion to Strike is denied as moot.
IV. CONCLUSION
For the reasons stated, the Seneca Nation of Indians' Motion for Leave to File an Amicus Brief is granted. However, the SNI's request for Rule 19 dismissal is denied based on this Court's determination that neither the SNI nor the State of New York are necessary to a just adjudication of this action. While the SNI clearly has an interest in operating a gambling casino on property it purchased in the City of Buffalo, its interest is adequately represented here by the Defendants, who are defending their decisions to permit such gaming. The State does not have an interest that will be impaired, as a practical matter, by this litigation.
That portion of Defendants' motion to dismiss which claims immunity from suit under the QTA is denied. The Plaintiffs are not challenging the SNI's title to the Buffalo Parcel and, therefore, QTA immunity does not apply. That portion of Defendants' motion to dismiss which seeks dismissal of claims One and Two (the IGRA claims) against the Secretary for lack of subject matter jurisdiction is granted. Because the Secretary's "Indian lands" determination is not final agency action, and no final agency action has yet occurred with respect to that determination, this Court lacks jurisdiction to review the Secretary's challenged statutory interpretations. Finally, that portion of Defendants' motion seeking dismissal of claims One and Two against the NIGC Chairman for failure to state a claim is denied. The NIGC is the agency expressly charged with administering the IGRA. Before approving a tribal gaming ordinance, the NIGC Chairman must necessarily establish, as a threshold jurisdictional matter, that gaming is permitted on the land in question i.e., that the land is "Indian lands" within the meaning of the IGRA. Plaintiffs' allegation that the NIGC did not make an "Indian lands" determination with respect to land the SNI intended to purchase in the City of Buffalo sufficiently states a claim for relief. In sum, Defendants' Motion to Dismiss is granted in part, and denied in part.
Based on its review of the administrative record, this Court finds that the NIGC should have, but did not, make an Indian lands determination in this case. Accordingly, this Court concludes that the Chairman's 2002 approval of a gaming ordinance permitting the SNI to conduct gambling on lands to be acquired in Erie County in the City of Buffalo was not the result of reasoned decision-making. Thus, the 2002 ordinance approval is vacated insofar as it permitted gaming on land to be acquired by the SNI in Erie County, at a location in *329 the City of Buffalo. Because the "Indian lands" determination is one that Congress squarely placed in the NIGC's hands, the Ordinance is remanded to the NIGC for an "Indian lands" determination and further proceedings, consistent with this Decision:
The remand to the NIGC renders Plaintiffs' remaining claims moot and, as discussed above, all motions not expressly decided herein are denied as moot.
V. ORDERS
IT HEREBY IS ORDERED, that the Seneca Nation of Indians' Motion for Leave to File an Amicus Brief (Docket No. 44) is GRANTED, but its request for Rule 19 Dismissal is DENIED.
FURTHER, that Defendants' Motion to Dismiss (Docket No. 22) is GRANTED in part, and DENIED in part consistent with the foregoing Decision.
FURTHER, that the National Indian Gaming Commission Chairman's administrative decision approving the "Seneca Nation of Indians Class III Gaming Ordinance of 2002 as Amended" is VACATED and REMANDED insofar as it authorized gaming on what is described herein as the Buffalo Parcel.
FURTHER, that, in light of the remand, Plaintiffs' Motion for Summary Judgment (Docket No. 39) is DENIED as moot.
FURTHER, that Defendants' Motion to Strike exhibits and portions of Plaintiffs' Memorandum in Support of Summary Judgment (Docket No. 54) is DENIED as moot.
FURTHER, that, in light of the remand, the remainder of Plaintiffs' and Intervenor-Plaintiffs' claims are moot and the Complaint and Intervenor-Complaint are Dismissed in their entirety.
FURTHER, that the Clerk of the Court is directed to take the necessary steps to close this case.
SO ORDERED.
NOTES
[1] Former Secretary of the Interior, Gale A. Norton, was the first named defendant when this action was filed. Dirk Kempthorne, who replaced Norton as Secretary following his confirmation by the Senate on May 26, 2006, was later substituted. Because Norton was the Secretary during the time period relevant to Plaintiffs' claims, all discussions relating to the Secretary will continue to refer to Norton and will use the pronoun "her,"
[2] Approximately one week after the Government filed its motion, the County of Erie and County Executive Joel A. Giambra moved to intervene in this action pursuant to Federal Rule of Civil Procedure 24(a)(2) or 24(b)(2). The unopposed motion was granted and an Intervenor Complaint was filed on June 6, 2006. The claims for relief in the Intervenor Complaint, ¶¶ 63-101 are identical to the claims for relief in the original Complaint, ¶¶ 49-86 (except for the Intervenor-Plaintiffs' addition of its allegation at ¶ 94 relating to anticipated lost sales tax revenue and increased taxpayer expenditures relating to criminal activity). Therefore, this Decision will refer to these pleadings, collectively, as "the Complaint," and determinations on Defendants' Motion to Dismiss will be applicable to both the Plaintiffs and Intervenor-Plaintiffs (collectively, "Plaintiffs").
[3] This provision is often referred to as the "after-acquired lands prohibition on gaming."
[4] The SNI has three reservation areas in New York State, Allegany, Cattaraugus and Oil Spring. 25 U.S.C. § 1774a(7).
[5] Though not expressly' articulated in the SNSA, the potential liability of concern to the United States presumably involved a possible violation of its trust obligation to the SNI by authorizing contractual agreements and/or a settlement for significantly less than fair market value.
[6] On April 4, 2006, the NIGC filed a Certified Copy of the. Administrative Record relating to its November 26, 2002 approval of the SNIs' Class III Gaming Ordinance of 2002, as amended. (Docket No. 17.) On May 2, 2006, the Department of Interior filed its Administrative Record relating to the placement of land in the City of Buffalo in restricted fee status pursuant to the SNSA and its determination regarding the tribal-state gaming compact between the SNI and the State of New York. (Docket Nos. 25-27.)
[7] The full title of the executed compact is "Nation-State Gaming Compact between the Seneca Nation of Indians and the State of New York."
[8] Plaintiffs and Intervenor-Plaintiffs filed joint opposition to the SNI's Motion for Leave and Defendants' Motion to Dismiss.
[9] The SNI does acknowledge that it could attempt to convince an existing party to raise the Rule 19 argument on its behalf. This Court notes that, on August 16, 2006, it provided "any Party wishing to file a response in support of or in opposition to the [SNI's] Motion" an opportunity to do so. (Docket No. 46.) Plaintiffs opposed the motion. Defendants did not file a response and have not otherwise attempted to adopt the SNI's argument.
[10] The SNI also argues that the State, as a party to the Compact, has governmental and economic interests in its validity. The State's purported interests will be addressed separately.
[11] The SNI specifically seeks to preserve the validity of the provision of the Compact "authorizing" gaming on lands in Buffalo. This Court notes that the operation of class III gaming on Indian lands is "'authorized" by the. IGRA and merely regulated by compacts. 25 U.S.C. §§ 2702(1) and 2710(d)(3)(B). The Compact here simply reflects the parties' agreement that sites for SNI gaming will be limited to Indian lands in certain geographic locales and is premised on the assumption that property purchased with SNSA funds will qualify as gaming-eligible Indian lands. (Compact ¶ 11 and attached Memorandum of Understanding at 1-2.) The actual creation of gaming-eligible Indian land is not among the issues that parties to a tribal-state compact have authority to negotiate. 25 U.S.C. § 2710(d)(3)(C). Thus, while the SNI's and State's mutual assumption may be impacted by the outcome of this litigation, their agreement that class III gaming can occur in the City of Buffalo if and when gaming-eligible Indian lands are acquired there will not.
[12] In its amicus brief, the SNI focuses primarily on its argument that Plaintiffs ultimately are attacking the validity of the Compact and cites numerous cases holding that all parties to a contract are necessary in an action challenging its validity or interpretation. See, e.g., American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir.2002) (tribe necessary to action seeking to extinguish compact right to automatic renewal); United States ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476 (7th Cir.1996) (tribes necessary to action seeking rescission of contracts to which they were parties); Kickapoo Tribe of Indians v. Babbitt, 43 F.3d 1491 (D.C.Cir. 1995) (state necessary to action seeking federal validation of compact that state court had held was invalid); Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542 (2d Cir.1991) (tribe necessary to action seeking to invalidate leases to which it was party and negotiated settlement agreement under which it was to receive payment); Enterprise Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890 (10th. Cir.1989) (tribe necessary to action seeking to validate contract which tribe, in separate action, sought to have declared void); Pueblo of Sandia v. Babbitt, 47 F.Supp.2d 49 (D.D.C.1999) (state necessary to suit challenging validity of revenue-sharing provision of compact). However, the nature of this action is quite different from the direct challenges to contractual rights at issue in the SNI's cited authority, and those cases simply are not applicable here.
This Court notes that the only language the SNI points to in the Complaint that makes specific reference to the Compact's viability is found at paragraph 2 of the Prayer for Relief, which seeks a declaration that "the Compact violates Sections 11(d) and 20 of the IGRA." (Complaint ¶ 24.) Plaintiffs' belief that the requested relief is an appropriate remedy should they prevail does not alter the nature of the claims as stated in the body of the Complaint. The claims themselves do not allege that any Compact term is unlawful, nor do they seek to nullify any contractual benefits for which the SNI could lawfully bargain. Indeed, Plaintiffs state in their opposing memorandum that "Ho determination . . . on the issues presented by the parties will change the contract between the SNI and the State." (Docket No. 52-1 at 11-12). Plaintiffs again confirmed at oral argument that "[t]here is no problem . . . with the compact itself or the gaming ordinance" and, if Plaintiffs prevail, the Compact will remain valid and effective as to class III gaming occurring on Indian lands. (Tr. at 90:24-91:17.)
[13] The strength of this interest obviously hinges on whether the Buffalo Parcel is gaming-eligible Indian land.
[14] The SNI urges that the Second Circuit has never accepted the view that a tribe's interests can be adequately represented by a named party. In Fluent, the case on which the SNI most heavily relies, the Secretary was not a party to the action, nor was it asserted that any other party was so positioned that its interest was aligned with the SNI's. Similarly, in Seneca Nation of Indians v. New York, 383 F.3d 45 (2d Cir.2004), the Court was not presented with the question of whether any existing party could adequately represent the interests of the People of the State of New York. There is a clear difference between not having been presented with the question and rejecting the premise. This, of course, is in addition to the distinction drawn above between cases challenging a non-party sovereign's contractual rights and those challenging federal agency action. At least one other district in this circuit has implicitly recognized that distinction and found that the Secretary could adequately represent a tribe's interest in a challenge to the Secretary's decision relative to trust land. State of Conn. ex rel. Blumenthal v. Babbitt, 899 F.Supp. 80 (D.Conn.1995) (alleging violations of IGRA, a settlement act, and NEPA). Moreover, though speaking to the matter in dicta, the Second Circuit stated, in a case challenging government decisions relating to the development of a casino, that it was "not certain that dismissing plaintiffs' complaint on Rule 19 grounds would be consistent with our duty to review such agency determinations." Shenandoah v. United States DOI, 159 F.3d 708, 715 (2d Cir.1998).
[15] This Court notes that the State's revenue would be similarly diminished if the SNI simply chose not to operate three class III gaming facilities. The Compact provides that the SNI may establish facilities in three locales; it does not require that the SNI do so. (Compact ¶ 11.)
[16] Plaintiffs IGRA claims are challenging the determinations that the Parcel's restricted fee status qualifies it as "Indian lands," and that the Parcel falls within the settlement of a land claim exception to the IGRA's after-acquired lands prohibition on gaming. While these challenges certainly have implications for the property's lawful uses, they have no potential to divest the SNI of title to the Buffalo Parcel or to alter the restricted fee status of the property.
[17] Defendants conceded at oral argument that placement of the Buffalo Parcel in restricted fee is a final agency action for purposes of the APA. (Tr. 24:21-24.)
[18] The Buffalo Parcel is held in restricted fee status because it was acquired with SNSA funds, 25 U.S.C. § 1774f(c), and the Secretary did not determine that the land should not be subject to the Nonintercourse Act, 25 U.S.C. § 177. "The obvious purpose of the Nonintercourse Act is to prevent unfair, improvident, or improper disposition by Indians of lands owned or possessed by them to other parties . . . [by enabling the Government] to vacate any disposition of their lands made without its consent." Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960) (citations omitted) (emphasis supplied). Thus, removing the restriction on fee would merely permit the SNI to dispose of property it owns at any time and in any manner it chooses.
[19] While restricting fee on property is an act that allows the United States to claim an interest in the real property for purposes of the QTA in the first place, the QTA applies only if the dispute is one that seeks to adjudicate title. No such dispute exists here.
[20] The letter was issued in connection with the Secretary's consideration of the Compact which, in turn, had to be submitted to the NIGC Chairman in connection with his consideration of the Ordinance.
[21] The source of funds used to acquire the Buffalo Parcel is undisputed. (Tr. 27-28.)
[22] The Ordinance states as follows: "The Tribal Council finds that (a) Class III gaining may be conducted on lands of the Nation by reason of the fact that the Nation and the State of New York have entered into a gaming compact pursuant to the Indian Gaming Regulatory Act. . . ." (Docket No. 17-5 ¶ 3.) (emphasis supplied). The Ordinance does not expressly identify the three sites specified in the Compact.
[23] As noted previously, the Compact reflects the SNI and State's agreement that class III gaming facilities will be limited to the three locales identified therein: a location in the City of Niagara Falls identified on an appended map, a location in Erie County yet to be determined, and a location on the SNI's current reservation territory. (Compact ¶ 11). The Compact also states that both the City of Niagara Falls and Erie County sites would be purchased with SNSA funds, pursuant to the procedure set forth in 25 U.S.C. § 1774f(c), and that the SNI would apply for their placement in restricted fee status. The Niagara Falls site identified in the Compact was so purchased by the SNI on October 25, 2002, prior to the SNI's submission of its amended Ordinance to the NIGC, and gaming has been in operation there for some time.
[24] The memorandum was submitted with the SNI's original ordinance. The record indicates that only "minor technical revisions" relating to certain procedures were made in the amended ordinance. (Docket No. 17-5 at 24). Thus, at least in large measure, the memorandum appears to relate to the amended ordinance, as well.
[25] This conclusion appears unlikely, however, in light of the NIGC's apparent communication with the SNI in early 2002 regarding technical deficiencies in its submission package and the SNI's related ordinance amendment. (See Docket No. 17-5.)
[26] This. Court considered whether it could remand this matter without vacating the Chairman's Ordinance approval as to the Buffalo Parcel. However, this Court concluded that vacatur is necessary in order to afford the NIGC an opportunity to complete its review on remand before the SNI actually commences gaming on the Buffalo Parcel.
[27] This Court is well-aware that there is a site the SNI may have purchased in the same manner as the Buffalo Parcel on which it presently is conducting gaming operations. However, this litigation relates solely to the Buffalo Parcel and relief is appropriately tailored to the site in dispute. Moreover, the Buffalo Parcel is the only site for which the NIGC may still determine whether proposed gaming will occur on Indian lands. On all other sites, gaming already is a reality.
|
786 So.2d 449 (2000)
ELMORE COUNTY COMMISSION and Elmore County
v.
Ray SMITH et al.
Richard Payson et al.
v.
Ray Smith et al.
1981750 and 1981935.
Supreme Court of Alabama.
July 21, 2000.
Rehearing Applications Overruled November 22, 2000.
*450 Craig S. Dillard of Webb & Eley, P.C., Montgomery, for appellants Elmore County Commission and Elmore County. Rehearing brief filed by James W. Webb, Craig S. Dillard, and Sheri J. Lowder of Webb & Eley, P.C., Montgomery.
J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for appellant Richard Payson et al.
Jacqueline E. Austin and Paul Christian Sasser, Jr., Wetumpka, for appellees.
Mary E. Pons, Montgomery, for amicus curiae Association of County Commissions of Alabama.
*451 On Applications For Rehearing
HOOPER, Chief Justice.
The opinion of March 24, 2000, is withdrawn and the following is substituted therefor.
These appeals involve a question regarding the procedure to be used when abutting landowners seek to vacate a public road. Richard Payson and other owners of land abutting Payson Road sought to close a portion of that road. Payson Road has been used as a public road and has been maintained as such by Elmore County for over 30 years. Payson appeared at a meeting of the Elmore County Commission in late 1997 or early 1998, orally requesting that a portion of Payson Road be closed. Payson and the other abutting landowners then retained an attorney to prepare a "declaration of vacation," pursuant to Ala.Code 1975, § 23-4-20, which was presented to the Commission. On March 23, 1998, the Commission passed a resolution assenting to the vacation of a portion of Payson Road. This resolution was signed by the county administrator; was signed and certified by the chairman of the Commission; was attached to the declaration of vacation; and was filed and recorded in the Probate Office of Elmore County. Ray Smith, as well as other owners and/or occupiers of real property in the vicinity of Payson Road (hereinafter the "Smith plaintiffs"), filed a complaint for declaratory and injunctive relief against Elmore County, the Elmore County Commission, Richard Payson, and the other abutting landowners (hereinafter Payson and the other abutting landowners are referred to as the "Payson defendants"). The Smith plaintiffs alleged that the proper statutory procedures for vacating a road had not been followed. The trial court entered a summary judgment for the Smith plaintiffs. Elmore County and the Elmore County Commission (hereinafter the "Elmore County defendants") appealed; likewise, the Payson defendants appealed. We reverse and remand.
In its summary judgment, the trial court held that the requirements of Ala.Code 1975, § 23-4-20, had not been fully complied with; therefore, it held, the Commission did not have the jurisdiction or authority to close Payson Road. Section 23-4-20 provides:
"(a) Any street or alley may be vacated, in whole or in part, by the owner or owners of the land abutting the street or alley or abutting that portion of the street or alley desired to be vacated joining in a written instrument declaring the same to be vacated, such written instrument to be executed, acknowledged and recorded in like manner as conveyances of land, which declaration being duly recorded shall operate to destroy the force and effect of the dedication of said street or alley or portion vacated and to divest all public rights, including any rights which may have been acquired by prescription, in that part of the street or alley so vacated; provided, that if any such street or alley is within the limits of any municipality, the assent to such vacation of the city council or other governing body of the municipality must be procured, evidenced by a resolution adopted by such governing body, a copy of which, certified by the clerk or ministerial officer in charge of the records of the municipality must be attached to, filed and recorded with the written declaration of vacation; and if any such street or alley has been or is being used as a public road and is not within the limits of any municipality, the assent to such vacation of the county commission of the county in which such street or alley is situated must be procured, evidenced by resolution adopted by such board or court, a copy of which, *452 certified by the head thereof, must be attached to, filed and recorded with the declaration of vacation. Such vacation shall not deprive other property owners of such right as they may have to convenient and reasonable means of ingress and egress to and from their property, and if such right is not afforded by the remaining streets and alleys, another street or alley affording such right must be dedicated.
"(b) The provisions of this section shall not be held to repeal any existing statute relating to the vacation of streets or alleys or parts thereof."
A summary judgment should be entered only upon a showing "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." Rule 56(c)(3), Ala.R.Civ.P. When the moving party makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmoving party to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is "of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). "In reviewing a summary judgment, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant." Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1121 (Ala.1992).
Both the Payson defendants and the Elmore County defendants contend that the requirements of § 23-4-20 were complied with in the vacation of Payson Road and that § 23-4-20 provides the only procedures that must be followed when abutting landowners vacate a road. In contrast, the Smith plaintiffs argue that the provisions of § 23-4-2 also apply when § 23-4-20 is invoked. Section 23-4-2 provides:
"(a) The governing body of the municipality where the street, alley or highway, or portion thereof, to be closed and vacated is situated in a municipality and, in other cases, the county commission of the county in which the street, alley, highway, or portion thereof, is situated shall, after causing to be published in a newspaper once a week for three consecutive weeks in the county a notice which shall describe the street, alley, highway or portion thereof proposed to be closed and vacated and also give the date of the hearing, first adopt a resolution to the effect that it is in the public interest that such street, alley, highway or portion thereof be closed and vacated; and thereafter, such governing body may file in the office of the judge of probate in the county in which such street, alley or highway, or portion thereof, is located, its petition requesting the closing and vacating of such street, alley or highway, or such portion thereof.
"(b) The petition shall describe with accuracy the street, alley or highway, or portion thereof, to be closed and vacated and shall give the names of the owner or owners of the abutting lots or parcels of land and also the owner or owners of such other lots or parcels of land, if any, which will be cut off from access thereby over some other reasonable and convenient way. The petition shall further set forth that it is in the interest of the public that such street, alley or highway, or portion thereof, be closed and vacated, and that a resolution to that effect has been adopted by the governing body of the municipality or county, as hereinbefore set forth.
*453 "(c) Thereupon, the probate court shall set the petition for hearing and shall issue notice of the pendency of the petition to the persons named in the petition. Such notice shall be served upon the said abutting owner or owners and also the person or persons, if any, named in the petition whose access will be affected, resident in this state as civil process is now served, not less than 10 days prior to the hearing of the petition. In case of a nonresident owner or owners or parties in interest or unknown defendants, the probate court shall cause to be published in a newspaper published in the county said notice, which shall contain the nature of the petition and in which shall be described the street, alley or highway, or portion thereof, proposed to be closed and vacated, and all such persons shall be required to appear upon the hearing thereof and to either assent to the granting of the petition or contest the same as they may see fit. Such notice shall be published once a week for three consecutive weeks prior to the date set for the hearing of the petition and shall give the date on which the hearing is to be had."
The Smith plaintiffs also contend that the Payson defendants are required to prove that the vacation of Payson Road is a public necessity. The Smith plaintiffs further argue that the manner in which the road was closed deprived them of procedural due process and that the provisions of § 23-4-20 were not met because the vacation of Payson Road deprives them of reasonable and convenient access.
I.
We first address the issue whether § 23-4-2 applies when a vacation is undertaken pursuant to § 23-4-20. This Court noted in Gwin v. Bristol Steel & Iron Works, Inc., 366 So.2d 692, 694 (Ala.1978): "[T]his area of the law (vacation of public streets in a non-eminent domain context) has been confusing and unsettled for at least the past 50 years." (Footnote omitted.) Indeed, more than 20 years after Gwin the law regarding the vacation of public streets by abutting landowners is still confusing and unsettled.
In Fordham v. Cleburne County Commission, 580 So.2d 567, 569 (Ala.1991), this Court stated: "The proper procedures required to enforce § 23-4-20 are found in § 23-4-2." However, that statement, because it was not necessary to the holding in that case, is mere dicta. In Fordham, the landowners abutting Beaver Lane Road sought to vacate that road pursuant to § 23-4-20. The landowners attended a meeting of the Cleburne County Commission and proposed that the road be closed. After an announcement of the proposed road closing had appeared in a local newspaper each week for three weeks, a requirement of § 23-4-2, the Commission adopted a resolution calling for the road to be closed. The Commission later adopted another resolution evidencing its intent to vacate the road. However, this Court held that the Cleburne County Commission "did not meet the strict standards set out in §§ 23-4-2 and 23-4-20" (580 So.2d at 570) because it did not adopt a clear and unequivocal resolution closing Beaver Lane Road.
While the Court in Fordham stated in dicta that a vacation pursuant to § 23-4-20 must follow the procedure set out in § 23-4-2, the Court also stated that "public streets, alleys, or highways can be closed and vacated by counties or municipalities in accordance with Ala.Code 1975, §§ 23-4-1 through -6, or by `abutting landowners' in accordance with § 23-4-20." 580 So.2d at 569 (emphasis added). It is unclear whether the vacation sought in Fordham was initiated pursuant to *454 § 23-4-20 or § 23-4-2 because, although the abutting landowners proposed the closing of the road to the county commission, the landowners did not join in a written instrument declaring the road to be vacated, as required by § 23-4-20. However, it is clear that the road in Fordham was not properly vacated, because the abutting landowners did not follow the provisions of § 23-4-20 and the commission did not follow the provisions of § 23-4-2. Thus Fordham is not strong support for the proposition that in seeking to vacate a road pursuant to § 23-4-20 the abutting landowners must also comply with § 23-4-2.
In McPhillips v. Brodbeck, 289 Ala. 148, 266 So.2d 592 (1972), this Court examined the vacation of a road by an abutting landowner pursuant to Title 56, § 32, Code of Alabama (1940), the predecessor to § 23-4-20, Ala.Code 1975; the earlier statute contains the same requirements as § 23-4-20. In that case, this Court noted a distinction between the vacation of a road by a public authority and the vacation of a road by abutting landowners as follows:
"[We are not] here dealing with a vacation of a street initiated by public authority to better serve the public interest where the rule of public necessity must override public convenience, but on the contrary we deal with a statutory provision whereby private interests may under prescribed circumstances deprive others of the use of a portion of an existing street in order to further the personal desires of such private interests. Such a statute should be strictly construed so that it not be an agency for oppression or misuse."
289 Ala. at 154, 266 So.2d at 597. This statement indicates this Court's recognition that, by enacting Title 56, § 32, the Legislature intended to allow the private interests of abutting landowners to override the public interest in the use of a roadway, so long as those landowners strictly followed the provisions of the statute.
In Chichester v. Kroman, 221 Ala. 203, 128 So. 166 (1930), which was criticized but not overruled in Gwin, this Court examined § 10361, Code of Alabama (1924), as amended by Acts 1927, p. 105, a predecessor to Title 56, § 32. In that case, the Court described the factual issues presented as follows:
"Did all the `owners of the land abutting the street or alley (or that portion of the street or alley desired to be vacated)' join `in a written instrument declaring the same to be vacated,' properly acknowledged and recorded, and did the city give its assent, `evidenced by a resolution adopted by such governing body, a copy of which, certified by the clerk or ministerial officer in charge of the records of the municipality attached to, filed and recorded with the written declaration of vacation,' and was a `convenient means of ingress and egress to and from this property afforded' by any other street or alley?"
221 Ala. at 206, 128 So. at 168. In other words, if the landowners joined in a written declaration of vacation, to which the city assented, and the public had another means of ingress and egress, no more was required before the road could be vacated. The question before the Court in Chichester was whether a convenient means of ingress and egress to the complainant's property was otherwise afforded.
The Smith plaintiffs cite Holland v. City of Alabaster, 624 So.2d 1376 (Ala.1993), in support of their argument that the Payson defendants cannot vacate the road unless they can show that the vacation is justified on the ground of public necessity. In Holland, this Court stated that "[a]ny private right of abutting owners is entirely and *455 completely subordinate to the public right, and any invasion of the street in the way of private use can be justified only on the ground of public necessity." 624 So.2d at 1378. Holland also involved the vacation of a road by abutting landowners pursuant to § 23-4-20; however, Holland held that there was no public necessity for closing the road and it did not address whether an abutting landowner seeking to have a road closed must comply with § 23-4-2. Holland is thus distinguishable from the present case because the holding in Holland was based on a finding by the trial court that the vacation of the road created a public nuisance.
In previous cases where this Court has been called on to interpret a statute, this Court has stated:
"`Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.'"
Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). The language of §§ 23-4-20 and 23-4-2 is unambiguous and each statute must be given its plain meaning. The plain language of § 23-4-20 provides the procedures that must be followed when an abutting landowner seeks to vacate a public road. Section 23-4-20 makes no reference to the procedure set forth in § 23-4-2, which by its plain language applies only to those vacations initiated by a municipality or county. We will not read into a statute what the Legislature has not written.
We also find persuasive the fact that the subject of the vacation of public roads by abutting landowners and by governing bodies appears in separate articles in the Code. Chapter 4 of Title 23, entitled "Closing and Vacating Streets, Alleys and Highways," contains both Article 1 (entitled "Counties or Municipalities," in which § 23-4-2 is found) and Article 2 (entitled "Abutting Landowners," in which § 23-4-20 is found). The fact that these provisions appear in separate articles indicates that the Legislature did not intend for the procedures in one Article to apply to the subject matter governed by the other Article. Thus, the provisions of § 23-4-20, which relate to "abutting landowners," were not meant to also be subject to the procedures set forth in § 23-4-2, which relate to counties and municipalities.
We must conclude from the plain language of the statutes that in order for an abutting landowner to vacate a road pursuant to § 23-4-20, it is not necessary to comply with the procedures set forth in § 23-4-2. To the extent it is inconsistent with our holding today, Fordham is overruled.
II.
We must now determine whether Payson Road was properly vacated, pursuant to § 23-4-20. The trial court's order did not state which provision or provisions of § 23-4-20 it found the Payson defendants to have failed to fully comply with. The record indicates, and the Smith plaintiffs do not dispute, that the Payson defendants, acting pursuant to § 23-4-20, joined in a written instrument declaring a portion of Payson Road to be vacated. That instrument was executed, acknowledged, and recorded in the Probate Office of Elmore County. Acting pursuant to § 23-4-20, the Commission adopted a resolution assenting to the vacation of Payson Road, *456 and a copy of that resolution was certified by the chairman of the Commission and was attached to, and filed and recorded with, the declaration of vacation. Thus, the only requirement of § 23-4-20 at issue is whether the vacation "deprive[s] other property owners of such right as they may have to convenient and reasonable means of ingress and egress to and from their property."
The Smith plaintiffs contend that the closing of Payson Road forces them to take an alternative road, County Road 7. They argue that County Road 7 is more congested than Payson Road and is impractical to use during early morning and late afternoon rush hours. They also claim that they have difficulty transporting farm equipment on County Road 7 because it is more heavily traveled than Payson Road.
In support of this argument, the Smith plaintiffs cite Williams v. Norton, 399 So.2d 828 (Ala.1981). In Williams, this Court held that the vacation of a public road by abutting landowners denied others the right of the "convenient enjoyment" of their property. The road that was vacated led to a recreational lake; after its vacation the other landowners, to get access to the water, were forced to take a more circuitous route through a private marina, which charged a fee for the use of its facilities. This Court, in Williams, noted that "an individual, as an owner of land which abuts a public road, suffers a special injury if an obstruction of that road denies him convenient access to a nearby waterway or forces him to take a more circuitous route to the outside world." 399 So.2d at 829. The Smith plaintiffs contend that the closing of Payson Road forces them to take "a more circuitous route to the outside world." We note that in Williams the owners who were denied access owned land abutting the public road that was vacated. In the present case, none of the Smith plaintiffs owns land abutting the vacated portion of Payson Road.
The Payson defendants argue that the Smith plaintiffs have not been deprived of reasonable and convenient means of ingress to and egress from their property. In fact, they contend that the alternative means of ingress and egress available to each of the Smith plaintiffs includes at least one paved road, unlike Payson Road, which is in certain places a one-lane dirt road. The Payson defendants contend that Williams is distinguishable from the present case because the vacation of the road in Williams effectively restricted the landowners' access to a body of water, the only alternative access to the water being a few miles away through a private marina that charged a fee. In contrast, the Payson defendants argue, the alternative route in the present case is a wider, paved road that is convenient to the property.
The Payson defendants also contend that McPhillips, supra, is distinguishable from the present case. In that case this Court reversed the trial court's judgment upholding the vacation of a portion of a street because the vacation deprived the plaintiff of his only means of access to Mobile Bay without providing an alternative means of access. In McPhillips the landowner's only means of access to Mobile Bay was eliminated. In the present case, however, the landowners continue to have alternative routes for access to their property. "It is not a question of comparing conveniences or desirability, but whether there is left or provided some other reasonably convenient way." Chichester, 221 Ala. at 206, 128 So. at 169.
It appears that the trial court entered the summary judgment in favor of the Smith plaintiffs based on a finding that the vacation had deprived the Smith plaintiffs of convenient and reasonable means of ingress *457 to and egress from their property and had thereby violated § 23-4-20. However, when viewed in the light most favorable to the Payson defendants, as the nonmovants, the evidence suggests that the Smith plaintiffs were not deprived of a "convenient and reasonable means of ingress and egress to and from their property." Therefore, we reverse the summary judgment in favor of the Smith plaintiffs and remand the case for further proceedings consistent with this opinion.
OPINION OF MARCH 24, 2000, WITHDRAWN; OPINION SUBSTITUTED; APPLICATIONS GRANTED; 1981750REVERSED AND REMANDED; 1981935REVERSED AND REMANDED.
MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.
|
136 Cal.App.3d 850 (1982)
186 Cal. Rptr. 560
FRED RAY STICKEL, Petitioner,
v.
THE SUPERIOR COURT OF SISKIYOU COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Docket No. 21559.
Court of Appeals of California, Third District.
October 22, 1982.
*852 COUNSEL
Nicholas C. Holt, Quin Denvir, State Public Defender, and Mark E. Cutler, Chief Assistant State Public Defender, for Petitioner.
No appearance for Respondent.
Steven B. Plumer, District Attorney, for Real Party in Interest.
*853 OPINION
SPARKS, J.
We are called upon to decide whether a defendant who committed a crime before the repeal of the mentally disordered sex offender (MDSO) statutes may be denied the benefits of the repealed law without infringing the constitutional proscription against ex post facto legislation. We hold that such a denial does not violate that proscription.
In 1981 petitioner Fred Ray Stickel committed a lewd and lascivious act upon the person of a child under the age of 14 years in violation of Penal Code section 288, subdivision (a). A complaint was filed against petitioner in January 1982 and in February 1982 he pled guilty before the magistrate. (Pen. Code, § 859a, subd. (a).) The matter was certified to the superior court where petitioner moved for consideration of his status as a mentally disordered sex offender under former Welfare and Institutions Code section 6300 et seq. The superior court determined that the repeal of the MDSO laws effective January 1, 1982, precluded consideration of petitioner as a MDSO. The court referred petitioner to the probation office for a presentence report. We issued an alternative writ of mandate and stayed further proceedings in the trial court in order to consider whether the repeal of the MDSO laws applies to a person who committed his crime before the effective date of the repeal.
I
The provisions of the MDSO laws were contained in former Welfare and Institutions Code sections 6300 through 6330. Essentially those provisions were intended to protect society against the activities of sexually disturbed offenders by confining and treating them in a state hospital. (People v. Resendez (1968) 260 Cal. App.2d 1, 12 [66 Cal. Rptr. 818].) As the Supreme Court explained in People v. Feagley (1975) 14 Cal.3d 338, 359 [121 Cal. Rptr. 509, 535 P.2d 373], "[n]ot only is medical treatment the raison d'etre of the mentally disordered sex offender law, it is its sole constitutional justification." These commitment proceedings have been said to be civil proceedings of a special nature, collateral to the criminal prosecution. (See e.g., Gross v. Superior Court (1954) 42 Cal.2d 816, 820 [270 P.2d 1025]; see also 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 30, pp. 905-906.) It has consequently been held that MDSO proceedings were neither intended as punishment for crime, nor as a substitute for punishment. (People v. Rancier (1966) 240 Cal. App.2d 579, 585 [49 Cal. Rptr. 876]; People v. Schaletzke (1966) 239 Cal. App.2d 881, *854 885 [49 Cal. Rptr. 275].) As an alternative to immediate imprisonment, the MDSO law provided for hospital confinement where an offender could both obtain treatment and a credit for the period of such commitment against any subsequent criminal punishment. (Former Welf. & Inst. Code, § 6325.)[1]
In Statutes of 1981, chapter 928, section 2, the Legislature repealed the MDSO provisions of the Welfare and Institutions Code, effective January 1, 1982. In sections 3 and 4 of that chapter the Legislature made certain declarations of its intent. Section 3 provides: "Nothing in this act shall be construed to affect any person under commitment under Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code prior to the effective date of this act. It is the Legislature's intent that persons committed as mentally disordered sex offenders and persons whose terms of commitment are extended under the provisions of Section 6316 of the Welfare and Institutions Code shall remain under these provisions until the commitments are terminated and the persons are returned to the court for resumption of the criminal proceedings.
"The Legislature finds and declares that the purposes of the mentally disordered sex offender commitment have been to provide adequate treatment of these offenders, adequate controls over these persons by isolating them from a free society, and to protect the public from repeated commission of sex crimes. In making the repeal of the mentally disordered sex offender commitment procedures prospective only, the Legislature finds and declares that it is necessary to retain persons under this commitment who committed their crimes before the effective date of this enactment in order to have proper control over these persons and to protect society against repeated commission of sex crimes and that other enactments in the 1979-80 Regular Session of the Legislature and the 1981-82 Regular Session of the Legislature would yield prison terms which would provide this protection to society without the need to retain the mentally disordered sex offender commitment."
Section 4 provides: "In repealing the mentally disordered sex offender commitment, the Legislature recognizes and declares that the commission of sex offenses is not in itself the product of mental diseases. It is the intent of the Legislature that persons convicted of a sex offense after the effective *855 date of this section, who are believed to have a serious, substantial, and treatable mental illness, shall be transferred to a state hospital for treatment under the provisions of Section 2684 of the Penal Code."
In the same chapter the Legislature amended the Penal Code by adding sections 1364 and 1365. These sections provide for voluntary treatment of persons convicted of certain sex crimes after a prison commitment.[2]
(1) (See fn. 3.) Petitioner asserts, predictably, that he is entitled under ex post facto principles to be treated under the former MDSO laws because *856 he committed his crime prior to the effective date of the repeal of those laws.[3]
II
Article I, section 10, clause 1 of the Constitution of the United States provides: "No state shall ... pass any ... ex post facto law...." Article I, section 9, of the Constitution of California similarly provides: "A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed."
(2) In the first case construing the federal ex post facto clause the United States Supreme Court categorized four classes of laws embraced by that clause: "1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." (Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390 [1 L.Ed. 648, 650].) That classification remains definitive today, 184 years later. (See People v. Superior Court (Willis) (1982) 135 Cal. App.3d 1052 [185 Cal. Rptr. 822]; People v. Sobiek (1973) 30 Cal. App.3d 458, 472 [106 Cal. Rptr. 519, 82 A.L.R.3d 804].)
*857 As the United States Supreme Court recently explained in Weaver v. Graham, supra, 450 U.S. 24, through this prohibition against ex post facto laws, "the Framers sought to assure that legislative Acts give fair warning to their effect and permit individuals to rely on their meaning until explicitly changed.... The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation.... [¶] In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." (Id., at pp. 28-29 [67 L.Ed.2d at p. 23], citations and fns. omitted.)
(3) The California Supreme Court has formulated a similar standard. The ex post facto clauses of federal and state Constitutions, that court held, "... prohibit retrospective laws that (1) impose criminal liability for conduct innocent when it occurred, (2) increase the punishment prescribed for a crime at the time it was committed, or (3) by necessary operation and `"in [their] relation to the offense, or [their] consequences, alter the situation of the accused to his disadvantage...."'" (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 180 [167 Cal. Rptr. 854, 616 P.2d 836].)
(4) We examine the repeal of the MDSO laws in light of these principles. Obviously the repealer did not impose criminal liability for conduct innocent when done. Lewd conduct with a child was criminal when petitioner acted in 1981 and remains so today. (Pen. Code, § 288, subd. (a).) Just as plainly the repeal did not increase or change the punishment for the commission of that crime in 1981. It was punishable by imprisonment in the state prison for a term of three, five or seven years and that punishment was not altered by the repeal of the MDSO statutes.[4] It remains only to be determined whether the repeal somehow "disadvantaged" petitioner as an accused. "That branch of ex post facto doctrine," the California Supreme Court explained in Hofferber, "relates to circumstances under which a criminal defendant is forced to defend against a *858 verdict of criminal guilt." (28 Cal.3d at p. 182.) Since the MDSO procedure did not even come into play until "a person is convicted of a sex offense" (former Welf. & Inst. Code, § 6302), it is self-evident that the repeal of this procedure could not disadvantage petitioner in the determination of his criminal guilt. In short, the MDSO statutes did not involve a criminal adjudication and their repeal, by definition, could not constitute an ex post facto violation. This conclusion was foreshadowed by Hofferber. There defendant was charged with murder. After he was found mentally incompetent to stand trial (Pen. Code, § 1368 et seq.), the Legislature amended the statutes governing the confinement of incompetent criminal defendants and exposed him to possible indefinite confinement for dangerousness. Defendant argued that the application of the amendments to the prior homicide violated the constitutional limitation on ex post facto laws. Rejecting that contention, the court held that the amendments "have nothing to do with any punitive disability attached to the homicide charged against appellant at the time it occurred. They did not alter or affect the sentence for that crime. They did not extend, directly or indirectly, any incarceration that had been or could be imposed on appellant for criminal conduct." (28 Cal.3d at p. 181.) Concluding that the amendments were "not penal for [the] purposes of the ex post facto clauses," the court stated that "no criminal adjudication is involved, and we find no ex post facto violation." (Id., at p. 182.) For the same reasons we also find no ex post facto violation here.
III
Having disposed of the constitutional question, we next consider whether the Legislature intended the repealing act to apply to offenders in petitioner's position. The People[5] contend that the Legislature intended to preserve the MDSO laws only to those persons actually committed before the effective date of the repeal of the MDSO laws, regardless of the date of the commission of their offenses. We agree.
It is clear that the Legislature intended to preserve the MDSO program for those defendants committed under its provisions prior to January 1, 1982. In section 3 of chapter 928 of the Statutes of 1981, the Legislature, as we have noted, expressly stated that the repeal of the MDSO laws would *859 not apply to persons "under commitment ... prior to the effective date of this act." Petitioner was not "under commitment" prior to that time. It is equally clear that the Legislature intended to abolish the program as to those persons who commit crimes subsequent to January 1, 1982. Petitioner committed his crime prior to the effective date of the repeal of the MDSO provisions, but was not convicted until after the repeal became effective. The declared legislative intent concerning that situation is, admittedly, less clear. The Legislature explicitly declared that the repeal was to be "prospective only." The question is whether that language refers to prospective crimes or to prospective convictions. (5) We conclude it refers to convictions and that the Legislature intended to abolish the initiation of all MDSO proceedings after January 1, 1982.[6]
We have already noted that Penal Code section 1364 was enacted by the same bill which repealed the MDSO statutes. That section commands in relevant part that "Notwithstanding any other provision of law, when any person is convicted of a sex offense against a person under the age of 14 years ... there shall be no hearing to determine whether the person is a mentally disordered sex offender." (Italics added.) The controlling date under this statute is the time of conviction.
The date of the commission of the crime, it must be recalled, is irrelevant to MDSO proceedings. The existence of an offender's status as a MDSO is determined, not at the time of the commission of the crime, but rather at a hearing after his conviction. (Former Welf. & Inst. Code, §§ 6302, 6316.) If the offender's mental status at that post conviction hearing is such that he is not presently a "person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others" (Welf. & Inst. Code, § 6300), the superior court could not commit him; instead the court was statutorily required to return the offender to the criminal court for sentencing. (Welf. & Inst. Code, § 6315.) Hence a sex offender who was a MDSO at the time of his crime but who recovered before his conviction could not be committed; conversely, an offender who was not a *860 MDSO when he committed the crime but who has since mentally degenerated into one by the time of his conviction was committable. What is critical is that the MDSO determination must be made on the basis of the defendant's condition at the time of the MDSO hearing. The commission of an offense is merely a precondition for invocation of the MDSO proceeding. It would, therefore, be unreasonable to construe the prospective language of the new law as referring to the immaterial time of the commission of the crime rather than the crucial date of the commitment hearing.[7] We are required to "indulge in a presumption that ... legislative provisions was not intended to produce unreasonable results." (Barber v. Blue (1966) 65 Cal.2d 185, 188 [52 Cal. Rptr. 865, 417 P.2d 401].) Since petitioner was not convicted until February 1982 the prospective repeal of MDSO commitments, effective January 1st, applied to his case.
The petition for writ of mandate is denied. The stay previously issued is vacated and the alternative writ discharged.
Blease, Acting P.J., and Carr, J., concurred.
A petition for a rehearing was denied November 17, 1982, and petitioner's application for a hearing by the Supreme Court was denied January 5, 1983. Mosk, J., was of the opinion that the application should be granted.
NOTES
[1] In People v. Sage (1980) 26 Cal.3d 498 [165 Cal. Rptr. 280, 611 P.2d 874], the Supreme Court ruled, however, that a defendant was not entitled to conduct credit under Penal Code section 4019 for the period of hospital confinement for treatment as a MDSO.
[2] Penal Code section 1364 provides: "Notwithstanding any other provision of law, when any person is convicted of a sex offense against a person under the age of 14 years or of a sex offense accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person there shall be no hearing to determine whether the person is a mentally disordered sex offender.
"The court after imposing sentence for such a conviction shall order the delivery of the convicted person to the Department of Corrections. The Department of Corrections shall inform such convicted persons of the state hospital program established pursuant to this section.
"If the convicted person has no more than two prior felony convictions for a non-sex crime, consents to evaluation, and has a sentence of three or more years, the Department of Corrections at the beginning of the third year prior to release shall transfer the person to an appropriate state hospital for an evaluation of up to thirty (30) days duration. At any time, during the thirty (30) day evaluation the director of the state hospital shall provide a diagnostic report to the Director of Corrections with a recommendation for or against placement of the person in a treatment program.
"The Director of Corrections shall, if he or she receives a recommendation for such treatment, and with the consent of the convicted person, transfer the person to an appropriate state hospital designated by the Director of Mental Health for treatment. In no event shall the person be placed on outpatient status pursuant to such treatment. In no event shall the person be released prior to his or her determinate sentence date, nor shall treatment pursuant to this section exceed the term of imprisonment imposed. The Director of Mental Health shall make a recommendation prior to the person's release date whether the person should receive outpatient treatment as a condition of parole. If outpatient treatment is provided in a county Short-Doyle Program, then treatment shall be funded as provided in Section 5710.1 of the Welfare and Institutions Code.
"If the person refuses to cooperate in his or her treatment while in the state hospital, or is found unamenable to treatment, or if the person requests a return to the Department of Corrections, the Director of the state hospital shall cause the person to be returned to the Department of Corrections.
"Physical transfer of the inmate from the Department of Corrections to the state hospital and return shall be the responsibility of the Department of Corrections.
"If the recommendation is against placement of the person in a treatment program, the person shall be returned to the Department of Corrections for incarceration for the remainder of his or her term of imprisonment.
"All days of confinement in a state hospital for testing and treatment shall be credited to the person's term of imprisonment and the provisions of Section 2931 shall apply."
Penal Code section 1365 reads: "It is the intent of the Legislature that persons committing sex offenses specified in Section 1364 have the opportunity during their time of incarceration to participate voluntarily in a state hospital program. The program shall be established according to a valid experimental design in order that the most effective, newest, and promising methods of treatment of sex offenders may be rigorously tested. The program established pursuant to Section 1364 shall terminate January 1, 1991."
[3] Petitioner claims that he is being deprived of a "right" available to him at the time the crime was committed. It is clear that a sex offender did not have a right to be treated as a MDSO under the repealed law. As the Court of Appeal noted in People v. Preciado (1981) 116 Cal. App.3d 409, 411-412 [172 Cal. Rptr. 107], "[e]ven though the court determined [defendant] was a MDSO who could benefit from treatment, he had no `right' to treatment in a state hospital, and the court could ... return him to the criminal court for sentencing. [Citation.]" But as the United States Supreme Court explained in Weaver v. Graham (1981) 450 U.S. 24 [67 L.Ed.2d 17, 101 S.Ct. 960], "... a law need not impair a `vested right' to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clause, which solely protect pre-existing entitlements.... The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense." (Id., at pp. 29-31 [67 L.Ed.2d at pp. 23-24], fns. omitted.)
[4] It is true that under the repealed law a MDSO was confined in a state hospital. But that confinement for treatment of a present mental condition did not constitute punishment for a past criminal offense. "While judicial attention to the MDSO is invoked by his commission of a criminal act, the entire statutory scheme providing for the diversion of MDSOs from the mainstream of the criminal justice system clearly indicates that `in MDSO cases, subsequent confinement of the ... person is for purposes of treatment, not punishment." (In re Moye, supra, 22 Cal.3d 457 at p. 466 [149 Cal. Rptr. 491, 584 P.2d 1097], italics in original; see also In re Bevill (1968) 68 Cal.2d 854, 858 [69 Cal. Rptr. 599, 422 P.2d 679] [confinement is not for the criminal offense but because of status as an MDSO]; People v. Rancier (1966) 240 Cal. App.2d 579, 585 [49 Cal. Rptr. 876] [same]; People v. Schaletzke (1966) 239 Cal. App.2d 881, 887 [49 Cal. Rptr. 275] [MDSO commitment not a substitute for punishment].)" (People v. Saffell (1979) 25 Cal.3d 223, 229 [157 Cal. Rptr. 897, 599 P.2d 92].)
[5] The District Attorney of Siskiyou County has been substituted for the Attorney General as counsel for the People as real party in interest in this proceeding. In a letter to this court the Attorney General explained that he has determined that the Legislature did not intend to abolish the MDSO laws as to persons who committed crimes prior to the effective date of the repeal of those laws, regardless of their conviction and commitment dates, and had so been advising his clients. Accordingly, he believed it to be inappropriate to represent the People in this proceeding.
[6] The same conclusion was reached by the Court of Appeal for the Second District in dictum in People v. Superior Court (Martin) (1982) 132 Cal. App.3d 658 [183 Cal. Rptr. 563]. There the court observed: "Although the question has not been raised in these proceedings, for the guidance of the trial court, we think it appropriate to point out that the critical event in applying the new statute (Pen. Code, § 1364) is conviction rather than commission of the offense. [¶] Penal Code section 1364 provides in effect that persons who are convicted of the prescribed offense after the effective date of the statute shall not be subject to an MDSO commitment but shall instead be committed to the Department of Corrections. [¶] By the same token, the legislation providing for prospective only repeal of the MDSO procedure speaks in terms of retaining persons under previously ordered commitments." (Id., at pp. 663-664; italics in original.)
[7] At the June 1982 primary election the voters adopted an initiative measure designated on the ballot as Proposition 8 and entitled "The Victims' Bill of Rights." Section 9 of that measure provides: "Sec. 9. Mentally Disordered Sex Offenders. Section 6331 is added to the Welfare and Institutions Code, to read:
"6331. This article shall become inoperative the day after the election at which the electors adopt this section, except that the article shall continue to apply in all respects to those already committed under its provisions.
"The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors."
By the terms of the new section the MDSO laws became "inoperative" on June 9, 1982, to all offenders except "those already committed." On June 9th, petitioner, of course, was not already committed. To the extent that 1981 legislative repeal of the MDSO statutes did not apply to crimes committed before January 1, 1982, this new section, if validly enacted, would be controlling. However, because we conclude that the Legislature intended to abolish all new MDSO commitment proceedings after January 1, 1982, we need not determine whether section 9 of that initiative was adopted in a procedurally correct manner and is itself operative. (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 253-254 [186 Cal. Rptr. 30, 651 P.2d 274].)
|
554 F.2d 903
5 O.S.H. Cas.(BNA) 1376, 1977-1978 O.S.H.D. ( 21,793
LONG MANUFACTURING CO., N. C., INC., Petitioner,v.OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and F. RayMarshall, Secretary of Labor, Respondents.
No. 76-1518.
United States Court of Appeals,Eighth Circuit.
Submitted March 14, 1977.Decided May 12, 1977.
Michael L. Roeder, Davenport, Iowa, for petitioner.
Stephen A. Bokat, Atty., U. S. Dept. of Labor, Washington, D. C., for respondent; William J. Kilberg, Sol. of Labor; Benjamin W. Mintz, Associate Sol. for Occupational Safety & Health; Michael H. Levin, Counsel for Appellate Litigation, Washington, D. C., on the brief.
Before WEBSTER and HENLEY, Circuit Judges, and MEREDITH,* District Judge.
HENLEY, Circuit Judge.
1
In this proceeding Long Manufacturing Co., N. C., Inc., hereinafter petitioner, seeks judicial review of a final order of the Occupational Safety & Health Review Commission (OSHRC), hereinafter Commission, assessing a civil penalty against petitioner for having failed to abate a violation of a safety standard contained in a regulation appearing as 29 C.F.R. § 1910.212 promulgated by the Secretary of Labor pursuant to the National Occupational Safety & Health Act of 1970, 29 U.S.C. §§ 651 et seq.1 We have jurisdiction by virtue of 29 U.S.C. § 660(a). That section requires us to accept the factual findings of the Commission if they are supported by substantial evidence on the record as a whole.
2
Petitioner is a manufacturing corporation based in Tarboro, North Carolina. It maintains a plant in Davenport, Iowa where it fabricates grain bins and boat trailers. During the time with which we are concerned, it employed about 1400 people, about 200 of whom were employed at the Davenport plant.
3
In its Davenport operation petitioner makes use of a number of machines including mechanical power presses. Two of petitioner's press machines were of the type known as press brakes which differ from conventional mechanical power presses in certain particulars. While such differences exist, a press brake in the last analysis is a mechanical power press designed to bend and form sheet metal. The material is worked by placing stock on a bottom die and causing it to be struck with a descending top die which moves up and down along slides constructed in the body of the machine. The stock is struck with tremendous force running into hundreds of tons per square inch.
4
Normally a power press, including a press brake, is operated by an individual who feeds stock manually into the machine, and then activates the machine by such means as foot pedals or hand controls. The risk of serious and mangling injuries to workers whose hands or arms are caught by a descending die is obvious and has long been recognized. Although it is possible to protect operators from such injuries by mechanical guarding devices or operating procedures, it is unfortunately true that the use of protective devices or procedures tends to reduce the productivity of the machines, and some employers are willing to expose their employees to the inherent danger of working with "unguarded" machines rather than protect the workers at the expense of productivity. And frequently workers are under an economic compulsion to continue to work without safeguards although the danger of serious and permanent injury is obvious to them.2
5
As of June, 1973 there were in force two regulations of the Secretary, promulgated under the Act, which were designed to protect operators of machines from injury at the "point of operation." One of those regulations, 29 C.F.R. § 1910.212,3 set out a general standard applicable to all machines. The other regulation, 29 C.F.R. § 1910.217, set out specific standards for mechanical power presses but excluded from the standards a number of types of machines including press brakes.4
6
On June 20, 1973 petitioner's plant was inspected by a compliance officer of the Labor Department's Occupational Safety & Health Administration, the agency through which the Secretary administers the Act. As of that time a number of petitioner's machines, including the two press brakes, were being operated without any guarding or protective devices whatever.
7
A citation was issued charging violations of 29 C.F.R. § 1910.212 with respect to the press brakes and other machines, and penalties totalling $1785.00 were proposed as provided by 29 U.S.C. §§ 658 and 659(a). Those proposed penalties were not protested within the time permitted by the Act and thus became final orders of the Commission. 29 U.S.C. § 659(a). The record indicates that petitioner paid the assessed penalties.
8
An initial period was allowed for the correction of the violations which period was extended until June 14, 1974. Between the date of the first inspection and that of a second inspection which took place in late August, 1974 petitioner installed dual hand controls at each of the working stations of the two press brakes. Those controls were such that if they had been properly located, an operator could not activate the machine without placing both hands on the controls and keeping them there during the strike phase of the machine's operating cycle. That, of course, would take the operator's hands and arms out of the danger zone.
9
However, petitioner placed the consoles on which the push button controls were located so close to each other than an operator could push both buttons with one hand, which left his other hand free to handle stock and possibly to be exposed to the descending die during the strike phase of the machine's operation. Further, the controls were so designed that one of them could be rendered inoperable in such manner that the operator could activate the press by pushing only one control button. And, indeed, both controls at a given work station could be deactivated, and when that happened the operator might have no control over the cycle of the press at his station.
10
On July 30, 1974 an operator while working at a station at one of the press brakes lost a finger of his left hand when it got caught in the machine. At the time one of the push buttons at his station had been rendered inactive, and the operator was activating the press by pushing the right hand control button while handling stock with his left hand.
11
On August 28, 1974 another inspection of petitioner's plant was made by a compliance officer, and he observed that the dual controls on the press brakes were so close together that both could be operated by one of the hands of the operator. The compliance officer considered that the problem could be corrected by the insertion of metal plates between the consoles at the respective working stations, and that was done by petitioner on the day after the inspection.
12
On the basis of the second inspection petitioner was cited for "repeated violations" of § 1910.212 with respect to the two press brakes and with respect to a third machine which was a punch press. A penalty of $350.00 was proposed.5
13
Petitioner protested the citation and proposed penalty, and the case was accordingly referred to the Commission for further proceedings in accordance with the Commission's rules of procedure which appear as Part 2200 of 29 C.F.R.
14
Those proceedings involved the filing of a complaint against petitioner by the Secretary. The Secretary's regional legal staff appears to have concluded that with respect to the press brakes petitioner was not guilty of a repeated violation but of having failed to correct or abate the initial violations which failure, if established, would in itself be a violation of 29 U.S.C. § 666(d) and would render petitioner liable to a civil penalty of up to $1,000.00 per day during which the failure to correct continued. The legal staff also seems to have concluded that with respect to the third machine petitioner was in fact guilty of a repeated violation based on the 1973 violations with respect to other machines, including the press brakes.
15
The views of the staff were incorporated in the complaint that was filed, and as to the press brakes the citation was amended so as to charge a failure to correct the original violations. Further, the amount of the proposed penalty was increased from $350.00 to $8700.00 for all three of the machines.
16
In its answer petitioner denied that it should be penalized in any sum and certainly not in a sum as large as $8700.00, and it objected to the amendment that has just been described. In addition, petitioner moved to dismiss the complaint, and in that motion it took the position for the first time that § 1910.212 was not applicable to press brakes in view of the provisions of § 1910.217, notwithstanding the fact that press brakes were not covered by that regulation.
17
The case was assigned to an administrative law judge who permitted the amendment to the citation and proposed penalty and who denied the motion to dismiss. An evidentiary hearing was held in due course before the judge, and he rendered his decision on or about July 1, 1975.
18
The judge found on the merits that petitioner was guilty of a repeated violation with respect to the punch press and penalized petitioner $350.00 for that violation. As to the press brakes, the judge found that the charge of having failed to correct the initial violations had been sustained. He also found that petitioner had acted in bad faith and with conscious indifference to the safety of its employees engaged in operating the press brakes. The judge imposed a penalty of $5,000.00 with respect to those machines.
19
Review of the judge's decision was granted, and the matter was considered by the full Commission. The Commission's decision was rendered in May 1976.
20
As to the punch press machine, the decision of the administrative law judge was reversed on the ground that that machine was covered by § 1910.217 and not by § 1910.212. As to the press brakes, the decision of the administrative law judge was affirmed by a majority of the Commission with Commissioner Moran dissenting as he had done in earlier cases involving the applicability of § 1910.212 to press brakes. Commissioner Moran also thought that the $5,000.00 penalty imposed was grossly excessive.
21
The Commission's decision having been rendered, the instant petition for review was timely filed in this court. For reversal, petitioner contends that § 1910.212 was not applicable to press brakes, and that if it was, it set out a standard too vague to form a valid basis for an award of a civil penalty. Petitioner also contends that the Secretary should not have been allowed to amend the August, 1974 citation and proposed penalty, that no penalty should have been imposed, and that in any event the $5,000.00 penalty imposed was excessive.
22
Taking up, first, petitioner's complaint about the amendment of the citation and proposed penalty, we find that contention to be without merit. A citation and proposed penalty are preliminary steps in the Act's enforcement scheme. An employer may accept the citation and proposed penalty without protest if he chooses to do so, but in our view if he chooses to contest the matter before the Commission, he does not have any vested right to go to trial on the specific charge mentioned in the citation or to be free from exposure to a penalty in excess of that originally proposed.
23
The Commission's rules recognize that in a proper case both the citation and the proposed penalty may be amended, 29 C.F.R. § 2200.33(a)(3), and we think that it was within the discretion of the administrative law judge to allow the amendment in this case so as to reflect accurately the violations with which petitioner was charged and to set out a penalty thought to be more appropriate to the alleged conduct of the petitioner than the one originally proposed.
24
Petitioner was not surprised or prejudiced in any way by the change in the nature of the charge, and it was not prejudiced by the increase in the amount of the proposed penalty except in the sense that if petitioner had accepted the initial proposal it would probably not have been faced with a higher proposal later. That, however, is not legal prejudice.
25
Moreover, even if the Secretary had not sought to increase the amount of the penalty originally proposed, the Commission would not have been bound by that amount. Penalties are assessed by the Commission and not by the Secretary, and when a penalty proposed by the Secretary is contested by the employer, the amount proposed by the Secretary is merely advisory. If the Commission finds that a penalty should be assessed, it may be in the same amount proposed by the Secretary, or a lesser amount, or a greater amount. 29 U.S.C. § 666(i); Brennan v. Occupational Safety & Health Review Com'n, 487 F.2d 438, 441-42 (8th Cir. 1974).
26
We also reject petitioner's contention that § 1910.212 was not applicable to press brakes. That contention has been rejected by the Commission not only in the instant case but also in Diebold, Inc., OSHRC No. 6767 (1976), review pending 6th Cir., and Irvington Moore, Division of U. S. Natural Resources, OSHRC No. 3116 (1975), review pending 9th Cir. Aside from the weight properly to be given to those decisions of the Commission, we are satisfied that the position of petitioner is not well taken. Section 1910.212 is a general standard that would cover all power press machines had § 1910.217 not been promulgated, and we do not believe that press brakes are taken out of the coverage of § 1910.212 merely because they were excepted from the coverage of § 1910.217. To so hold would mean that during the period with which we are concerned operators of press brakes would not have been entitled to any protection whatever from the inherent risk of getting their hands or arms crushed by the machines that they were operating. Such a result was clearly not contemplated by Congress.
27
It is true in this context as in others that the general must yield to the specific, and 29 C.F.R. § 5(c)(1) recognizes that a general standard must give way to an applicable specific standard. It does not follow, however, that if a specific standard dealing with a certain generic type of machine excludes certain identified specific machines within the general class, those machines are to go completely unregulated even though they fall within the terms of a general regulatory standard. In other words, we do not think that a machine is in a regulatory vacuum merely because it has been excepted from a specific standard that takes some machines of the same genus out of the general standard.
28
Nor do we see anything objectionably vague or indefinite about § 1910.212 when applied to press brakes. When the regulation is read as a whole, it simply requires that when a machine is a source of danger to operatives at the point of operation, that point must be guarded by some appropriate means or device for the purpose of preventing any part of the body of the operator from being in the danger zone during the machine's operating cycle; and the regulation specifically includes power presses as machines that ordinarily require guarding at the point of operation.
29
Additionally, the regulation refers to dual hand controls as a suitable means of providing protection to workers in some instances. That was the method that petitioner ostensibly chose to employ, and it would have been effective if petitioner had not thwarted the protective function of the controls in the ways that have been described.
30
With respect to the question of whether any penalty should have been imposed on petitioner, we are satisfied that the findings of the administrative law judge and of the Commission that petitioner had violated 29 U.S.C. § 666(d) were supported by substantial evidence, and we are bound by them.
31
As to the amount of the penalty assessed, we have recognized that a determination of how large or how small a penalty should be imposed is not a finding of fact but is an exercise of discretion by the Commission which will not be disturbed by us in the absence of abuse. Arkansas Best Freight System, Inc. v. Occupational Safety & Health Review Com'n, 529 F.2d 649, 656 (8th Cir. 1976); Brennan v. Occupational Safety & Health Review Com'n, supra, 487 F.2d at 442.
32
The $5,000.00 penalty assessed by the Commission was well within statutory limits and was not disproportionate to the size of petitioner's business. Petitioner's claims that it acted at all times in good faith and with reasonable diligence and that most of its difficulties lay in the fact that it could get no clear guidance from the Labor Department were raised before the administrative law judge and before the Commission and were rejected. And we think that the findings to the effect that petitioner had acted in bad faith and with indifference to the safety of its employees were supported adequately by the evidence. While the penalty assessed may seem to be large, we cannot say that it was so large as to amount to an abuse of discretion.
33
The petition for review is denied, and the order of the Commission will be enforced.
*
The Honorable James H. Meredith, Chief Judge, United States District Court for the Eastern District of Missouri, sitting by designation
1
The Act is a comprehensive one that is designed to protect the occupational safety and health of workers employed in industries affecting interstate commerce. The Act is remedial and is obviously entitled to a liberal construction. It has been before this court and thoroughly analyzed and discussed in a number of cases including Arkansas Best Freight System, Inc. v. Occupational Safety & Health Review Com'n, 529 F.2d 649 (8th Cir. 1976), and Brennan v. Occupational Safety & Health Review Com'n, 487 F.2d 438 (8th Cir. 1974). No useful purpose would be served by repeating or paraphrasing those discussions
2
For discussion of the problem of economic compulsion in the context of a products liability case arising out of an injury sustained when an employee's arm was caught in a punch press, see Rhoads v. Service Machine Co., 329 F.Supp. 367, 380 (E.D.Ark.1971)
3
(a) Machine guarding (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier guards, two-hand tripping devices, electronic safety devices, etc
(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself.
(3) Point of operation guarding. (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
(iii) Special handtools for placing and removing material shall be such as to permit easy handling of material without the operator placing a hand in the danger zone. Such tools shall not be in lieu of other guarding required by this section, but can only be used to supplement protection provided.
(iv) The following are some of the machines which usually require point of operation guarding:
(a) Guillotine cutters.
(b) Shears.
(c) Alligator shears.
(d) Power presses.
(e) Milling machines.
(f) Power saws.
(g) Jointers.
(h) Portable power tools.
(i) Forming rolls and calenders.
(Emphasis supplied.)
4
Section 1910.217 was a "national concensus standard" adopted in 1971 by the American National Standards Institute (ANSI) and promulgated by the Secretary as authorized by 29 U.S.C. § 655. Section 1910.212 was an "established Federal standard" borrowed from regulations issued by the Secretary under the Walsh-Healey Act of 1936, 41 U.S.C. §§ 35 et seq. The promulgation of that standard under OSHA was also authorized by 29 U.S.C. § 655. In 1973 ANSI came out with standards dealing with press brakes, but those standards did not go into effect with respect to machines already installed and in use until 1976; those standards are not involved in this case
5
The penalty for a willful or repeated violation of the Act or of standards prescribed thereunder may be as high as $10,000.00. 29 U.S.C. § 666(a). An employer who commits a non-willful initial violation is subject to a civil penalty of up to $1,000.00; if the violation was of a "serious" nature, a penalty must be imposed; if the violation was "non-serious," the imposition of a penalty is discretionary. 29 U.S.C. § 666(b) and (c). A "serious" violation is defined in 29 U.S.C. § 666(j). While it appears to us that in 1973 petitioner might have been charged with a serious violation, the record indicates that it was in fact charged with a violation that was other than serious
|
53 F.3d 1155
75 A.F.T.R.2d 95-2029, 63 USLW 2719,95-2 USTC P 50,632,33 Collier Bankr.Cas.2d 613, 27 Bankr.Ct.Dec. 210,Bankr. L. Rep. P 76,528,19 Employee Benefits Cas. 1241,Pens. Plan Guide P 23909C
In re CF&I FABRICATORS OF UTAH, INC., Debtor.UNITED STATES of America, Appellant,v.REORGANIZED CF&I FABRICATORS OF UTAH, INC., ReorganizedColorado & Utah Land Company, Reorganized Kansas MetalsCompany, Reorganized Albuquerque Metals Company, ReorganizedPueblo Metals Company, Reorganized Pueblo Railroad ServiceCompany, Reorganized Denver Metals Company, Reorganized CF&IFabricators of Colorado, Inc., Reorganized CF&I SteelCorporation, Reorganized The Colorado and Wyoming RailwayCompany, Appellees.
Nos. 94-4034 to 94-4036.
United States Court of Appeals,Tenth Circuit.
April 27, 1995.
Gary D. Gray, Attorney, Tax Div., Dept. of Justice, Washington, DC (Loretta C. Argrett, Asst. Atty. Gen., Kenneth W. Rosenberg, Attorney, and Scott M. Matheson, Jr., U.S. Atty. for State of Utah, of counsel, with him on the briefs), for appellant.
Steven J. McCardell, LeBoeuf, Lamb, Greene & MacRae, Salt Lake City, UT (Stephen M. Tumblin and Kevin C. Marcoux, LeBoeuf, Lamb, Greene & MacRae, Salt Lake City, UT, and Frank Cummings, LeBoeuf, Lamb, Greene & MacRae, Washington, DC, with him on the brief), for appellees.
Before TACHA and HOLLOWAY, Circuit Judges, and BURRAGE,* District Judge.
TACHA, Circuit Judge.
I. Background
1
CF&I Fabricators of Utah, Inc. and various related entities (collectively, "CF&I") sponsored two qualified pension plans established for the benefit of their employees and retirees. Under the plans, CF&I was obligated to make annual plan funding contributions. On September 15, 1990, CF&I failed to make a required $12.4 million plan funding payment for the year ending December 31, 1989. Two months later, CF&I petitioned for reorganization under Chapter 11 of the Bankruptcy Code. The larger of the two pension plans was subsequently terminated by the Pension Benefit Guaranty Corporation ("PBGC"), a wholly-owned government corporation that guarantees payment of certain pension benefits. See 29 U.S.C. Secs. 1321-1322b.1
2
The Internal Revenue Service ("IRS") filed several proofs of claim in the bankruptcy court. The claim that is the subject of this appeal arises under Internal Revenue Code ("IRC") section 4971(a), under which the IRS imposes a ten percent tax on the "accumulated funding deficiency" of specified pension plans. 26 U.S.C. Sec. 4971(a). CF&I's failure to make the required pension plan contribution on September 15, 1990, triggered the immediate imposition of the tax. See id. The parties do not dispute CF&I's underlying section 4971 liability. At issue is what, if any, priority the claim should be accorded.
3
In its proof of claim, the IRS asserted that CF&I's section 4971(a) liability was entitled to priority as an excise tax under Bankruptcy Code section 507(a)(7) (now codified at 11 U.S.C. Sec. 507(a)(8)).2 The bankruptcy court disagreed with the IRS's position and held that CF&I's section 4971(a) liability was not an excise tax. Instead, the court characterized the claim as a penalty that did not compensate for pecuniary loss and was therefore not entitled to priority status. In re CF&I Fabricators, 148 B.R. 332, 337-40 (Bankr.D.Utah 1992). In a subsequent order, the bankruptcy court subordinated the IRC section 4971(a) claim to all other general unsecured claims pursuant to the Bankruptcy Code's equitable subordination provision, 11 U.S.C. Sec. 510(c)(1). The district court affirmed the bankruptcy court's orders, and the government appealed to this court. We have jurisdiction pursuant to 28 U.S.C. Secs. 158(d) and 1291.
4
In its appeal, the IRS argues that the bankruptcy and district courts erred (1) by concluding that the exaction imposed by IRC section 4971(a) was not entitled to priority under section 507(a)(7), and (2) by subordinating the IRS's claim to all other unsecured creditors under the doctrine of equitable subordination. In addition, the government suggests that we reconsider, in an en banc hearing, our decision in United States v. Dumler (In re Cassidy), 983 F.2d 161 (10th Cir.1992).
II. Discussion
5
We review determinations of law by the bankruptcy court de novo. Davidovich v. Welton (In re Davidovich), 901 F.2d 1533, 1536 (10th Cir.1990). Our review of the district court's order affirming the bankruptcy court is de novo as well. Burden v. United States (In re Burden), 917 F.2d 115, 116 (3d Cir.1990).
A. Priority Under Section 507(a)(7)
6
The IRS contends that CF&I's section 4971(a) liability is a governmental claim entitled to priority under subsection 507(a)(7)(E) or, in the alternative, subsection 507(a)(7)(G). Section 507(a)(7)(E) accords priority to "an excise tax on ... a transaction occurring before the date of the filing of the petition for which a return ... is last due ... after three years before the date of the filing of the petition." 11 U.S.C. Sec. 507(a)(7)(E)(i). The same priority is accorded to "a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss." Id. Sec. 507(a)(7)(G). The tax at issue here, IRC section 4971(a), is included in Subtitle D of the IRC, entitled "Miscellaneous Excise Tax." The IRS argues that, because the tax is labeled an "excise tax" under the IRC, it must be considered an excise tax under the Bankruptcy Code as well.
7
On December 7, 1992, after the bankruptcy court issued its first order in this case, we decided Cassidy, 983 F.2d 161. In Cassidy, we held that "Congress' labeling of [an] exaction as a tax is not determinative of its status for priority in bankruptcy." Id. at 163. The tax at issue in Cassidy was the ten percent additional tax imposed by 26 U.S.C. Sec. 72(t) on early distributions from qualified retirement plans. Section 72 is in subtitle A, chapter 1, subchapter B, part II of the IRC, which is titled "Items Specifically Included in Gross Income." Thus, the government argued, it should be given priority under section 507(a)(7)(A) as "a tax on or measured by income." We disagreed with the government and held that the label given a tax in the IRC was not determinative of its status for priority under section 507(a)(7). Cassidy further held that, to determine whether an exaction is a tax or penalty for priority in bankruptcy purposes, we apply the four-part test from In re Lorber Indus., 675 F.2d 1062 (9th Cir.1982). Cassidy, 983 F.2d at 163.
8
In the present case, the government vigorously argues that Cassidy was wrongly decided, again contending that a court should defer to Congress's designation of an exaction rather than look beyond the statutory label to the nature of the exaction. Cassidy binds this panel, however, because it is the law of this circuit. See In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (per curiam) ("We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court."), cert. denied, --- U.S. ----, 115 S.Ct. 53, 130 L.Ed.2d 13 (1994). We therefore conclude that the bankruptcy court correctly refused to treat the IRC's label as determinative for priority in bankruptcy purposes.
9
Instead, the bankruptcy court looked beyond the IRC's label and analyzed the nature of the exaction using the Lorber test. The court concluded that CF&I's section 4971(a) liability was not entitled to priority. We agree with the bankruptcy court's analysis and therefore affirm the order of the district court for substantially the reasons given by the bankruptcy court. See In re CF&I Fabricators, 148 B.R. 332.
B. Equitable Subordination
10
The government's first argument against equitable subordination of its claim is that a bankruptcy court may not subordinate a claim under section 510(c)(1) if that claim is entitled to priority under section 507. Because we have determined that the IRS's claim here is a nonpecuniary loss penalty not entitled to section 507 priority, we need not discuss the merits of this argument.
11
The government next contends that the phrase "under principles of equitable subordination" in section 510(c) prohibits the bankruptcy court from subordinating a claim without a finding of misconduct on the part of the subordinated claimant. In this case, the bankruptcy court expressly found that "there [had] been no inequitable conduct on the part of the Internal Revenue Service."
12
The Bankruptcy Code neither defines the doctrine of equitable subordination, see United States v. Noland, 48 F.3d 210, 214-15 (6th Cir.1995), nor specifies the circumstances under which it should be imposed, see United States Abatement Corp. v. Mobil Exploration & Producing U.S., Inc. (In re United States Abatement Corp.), 39 F.3d 556, 561 (5th Cir.1994). Consequently, courts applying section 510(c)(1) have looked to common law principles for guidance. See, e.g., id.
13
In general, equitable subordination is imposed only when a creditor has committed some kind of wrongful conduct. In re Virtual Network Servs. Corp., 902 F.2d 1246, 1248 (7th Cir.1990); Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977). Nevertheless, the four circuit courts that have considered the matter have concluded that a court may subordinate a nonpecuniary loss tax penalty claim without a showing of misconduct on the part of the government. See Noland, 48 F.3d at 217-19; Burden, 917 F.2d at 118-19; Schultz Broadway Inn v. United States, 912 F.2d 230, 234 (8th Cir.1990); In re Virtual Network, 902 F.2d at 1249-50.3
14
The question was addressed first by the Seventh Circuit in Virtual Network. After a thorough analysis of the legislative history of section 510(c)(1), the court decided that Congress intended courts to continue developing the principles of equitable subordination. Virtual Network, 902 F.2d at 1249-50. The court further found that "[section] 510(c)(1) authorizes courts to equitably subordinate claims to other claims on a case-by-case basis without requiring in every instance inequitable conduct on the part of the creditor claiming parity among other unsecured general creditors." Id. at 1250.
15
In subsequent cases addressing this issue, other courts have employed substantially the same analysis as the Virtual Network court. See Noland, 48 F.3d at 213-18; Burden, 917 F.2d at 116-20; Schultz Broadway Inn, 912 F.2d at 231-34. We find the reasoning of Virtual Network persuasive and hold that section 510(c)(1) does not require a finding of claimant misconduct to subordinate nonpecuniary loss tax penalty claims.
16
The bankruptcy court considered the equities in this case and determined that subordination of the IRS's section 4971 claim to all other unsecured claims was appropriate. After noting that the facts in the case were undisputed, the bankruptcy court observed that general unsecured creditors of CF&I will receive only a small percentage of their claims. One of CF&I's unsecured creditors is the PBGC, which will be paying the pension benefits due under CF&I's terminated pension plan. Declining to subordinate the IRS's penalty claim would harm innocent creditors rather than punish the debtor for failing to fund the pension plan. Thus, the bankruptcy court reasoned, allowing the IRS's penalty claim would not advance the purposes of either IRC section 4971 or the Bankruptcy Code. We conclude that the bankruptcy court correctly addressed the equities in this case and therefore affirm the orders subordinating the IRS's section 4971 claims.
III. Conclusion
17
For the reasons stated in this opinion, the judgment of the district court is AFFIRMED. In addition, the government's suggestion for hearing en banc to reconsider our decision in In re Cassidy, 983 F.2d 161, has been brought to the attention of all the active judges of the court. As no poll has been requested on the suggestion, it is hereby DENIED.
*
The Honorable Michael Burrage, District Judge, United States District Court for the Eastern District of Oklahoma, sitting by designation
1
Most of the funds from which the PBGC pays pension benefits come from insurance premiums paid by sponsors of qualified pension plans. See 29 U.S.C. Sec. 1305. The PBGC filed proofs of claims against the debtors in the bankruptcy court. The bankruptcy court ruled that these claims are unsecured and are not entitled to priority or administrative status. That ruling is not at issue in this appeal
2
Congress amended section 507 on October 22, 1994. Former subsection 507(a)(7) is currently located at subsection 507(a)(8). Other than the change in priority of governmental claims, the text of the subsection is unchanged. In this opinion we will refer to the provision as it was codified at the time the IRS asserted its claim
3
In addition, a number of district and bankruptcy courts have subordinated nonpecuniary loss tax penalties under section 510(c)(1). See, e.g., In re Juvenile Shoe Corp. of Am., 166 B.R. 404, 410 (Bankr.E.D.Mo.1994); Walker v. Ferguson (In re Import & Mini Car Parts, Ltd.), 136 B.R. 178, 182 (Bankr.N.D.Ind.1991); Retail Marketing Corp. v. United States (In re Mako, Inc.), 135 B.R. 902, 904 (E.D.Okla.1991); Seidle v. United States (In re Airlift Int'l, Inc.), 120 B.R. 597, 601-02 (S.D.Fla.1990); In re Merwede, 84 B.R. 11, 14 (Bankr.D.Conn.1988)
|
UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, B.T. PALMER, T.H. CAMPBELL
Appellate Military Judges
UNITED STATES OF AMERICA
v.
RICARDO A. SOLTREN
FIRE CONTROLMAN SEAMAN APPRENTICE (E -2), U.S. NAVY
NMCCA 201600151
GENERAL COURT-MARTIAL
Sentence Adjudged: 18 February 2016.
Military Judge: CAPT Paul C. LeBlanc, JAGC, USN.
Convening Authority: Commander, Navy Region Southwest, San
Diego, CA.
Staff Judge Advocate's Recommendation: CDR D.J. Jones,
JAGC, USN.
For Appellant: LT Jacob Meusch, JAGC, USN.
For Appellee: LT Jetti Gibson, JAGC, USN.
23 June 2016
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
After careful consideration of the record, submitted
without assignment of error, we affirm the findings and sentence
as approved by the convening authority. Art. 66(c), Uniform
Code of Military Justice, 10 U.S.C. § 866(c).
For the Court
R.H. TROIDL
Clerk of Court
|
129 F.Supp.2d 1170 (2001)
Karen WEIGAND, individually and as guardian of Kelly and David Weigand; Beth Walker, individually and as guardian of Andrew, Carolyn, and Stephanie Walker; William Martens, individually and as guardian of Zachary and Samantha Martens; Michael and Susan Tulley, individually and as guardian of Ashlee, Lindsay, and Jessica Tulley; James and Marian Beisadecki, individually and as guardian of Amber, Laura, and Jenny Biesadecki; Anthony and Rita Loffredo, individually and as guardian of Ashley, Jeff, Kara, Katie Loffredo; Glenn and Laurie Henchel, individually and as guardian of Jimmy and Dana Henchel; Roland and Yvette Rowe, individually and as guardian of Ronny and Ryan Rowe; Dennis G. Supanich; Rose and Robert Sakanis, individually and as guardian of Jonathan and Dawn Sakanis, Plaintiffs,
v.
VILLAGE OF TINLEY PARK, a municipal corporation and body politic, Edward Zabrocki, Village President, Patrick Rea, David Seaman, Gregory Hannon, Michael Bettenhausen, Matthew Hefferan, and Brian Maher, Trustees, in their official capacities as corporate trustees, Defendants.
No. 00C5059.
United States District Court, N.D. Illinois, Eastern Division.
January 26, 2001.
*1171 Burton S. Odelson, Odelson & Sterk, Ltd., Evergreen Park, IL, for plaintiffs.
Russell W. Hartigan, Hartigan & Cuisinier, Chicago, IL, for defendants.
MEMORANDUM OPINION AND ORDER
BUCKLO, District Judge.
On September 21, 2000, I issued a preliminary injunction against the enforcement of an ordinance of the Village of Tinley Park, Illinois, Tinley Park Munic.Code § 99.013, that prohibited playing games in public places, including streets, sidewalks, schoolyards, parks, and bodies of water (the "ordinance").[1]See Weigand v. Tinley Park, 114 F.Supp.2d 734 (N.D.Ill. 2000). I held that the plaintiffs, some of whom had been ticketed for "parental irresponsibility" for allowing their children to play in a cul-de-sac in violation of the ordinance, had shown a reasonable likelihood of success in showing that the ordinance was facially unconstitutional, infringing on the fundamental right to assemble, and failing even to have a rational basis. Id. at 736-38. I stated that further relief requested, including attorneys's fees, damages, and permanent injunctive and declaratory relief would be considered after a hearing. At the hearing, the defendants indicated that the ordinance had been repealed in early October 2000. The plaintiffs now move for a permanent injunction. The defendants oppose this as moot in view of the repeal. I grant the permanent injunction.
For me to award permanent injunctive relief, the plaintiffs must demonstrate that (1) they have succeeded on the merits; (2) no adequate remedy at law exists; (3) they will suffer irreparable harm without injunctive relief; (4) the irreparable harm suffered without injunctive relief outweighs the irreparable harm the nonprevailing party will suffer if the injunction is granted; and (5) the injunction will not harm the public interest. Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir.1998). These requirements are satisfied here.
First, the plaintiffs prevail on the merits for the reasons explained in my previous opinion. The ordinance is constitutionally infirm: it is hopelessly vague and substantially overbroad, because there is no attempt to explain what is meant by "game," and because it prohibits a tremendous number of innocent and even desirable activities in venues specifically designed for those purposes, such as schoolyards and parks. The ordinance flunks the strict scrutiny test because it is facially violative of the First Amendment right to peaceable assembly, and probably to free speech as well. It prohibits clearly protected core political speech and assembly. *1172 It is not a reasonable time, place, and manner restriction, but a blanket prohibition. I cannot imagine a plausible limiting construction that a state court might apply to cure these defects. See Schultz v. City of Cumberland, 228 F.3d 831, 848 (7th Cir.2000) (invalidation for overbreadth proper only when a limiting construction is not readily available). Moreover, the ordinance even flunks rational basis review. Although under rational basis review, I "must uphold the challenged [legislation] if there is a rational relationship between the disparity of treatment and some legitimate government purpose," Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993), I cannot imagine any "conceivable basis" in or out of the record, see id., that might support the ordinance. The defendants have not suggested any point to requiring a permit for children to play in a playground, park, or pool, for example, and I can imagine none. According, I declare that the ordinance is unconstitutional and invalid. The other requirements are satisfied for the reasons set forth in my previous opinion and need not be repeated here.
The defendants do not actually contest any of this, arguing rather that I lack jurisdiction because the controversy is moot. They say that they repealed the ordinance, so there is nothing left to enjoin. The defendants rightly contend that under Article III, there must be a live case or controversy at every stage of the litigation, Gollust v. Mendell, 501 U.S. 115, 125, 111 S.Ct. 2173, 115 L.Ed.2d 109 (1991), and that attorney's fees alone do not provide enough of an interest to prevent a dismissal for mootness. Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). The test for mootness in a case like this is to show that the relief sought would make a difference to the plaintiff's legal interests. Where a challenged state action is "capable of repetition yet evading review," see Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911) (creating an exception to mootness), "there must be a `demonstrated probability' that the same party will again be subject to the challenged action." Martin v. Davies, 917 F.2d 336, 339 (7th Cir.1990) (citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)). The defendants say that they have repealed the ordinance and "the plaintiff[s] ha[ve] not provided the requisite demonstrative probability of its reenactment."
However, the plaintiffs point out that the Supreme Court has held that voluntary cessation of illegal conduct does not by itself moot a case. See United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). The Court explained that:
A controversy may remain to be settled in such circumstances, e.g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right. The courts have rightly refused to grant defendants such a powerful weapon....
Id. at 632, 73 S.Ct. 894. Moreover, "[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption." Id. n. 5 (antitrust context). As the Seventh Circuit says, "while voluntary cessation of unlawful activity and promises not to engage in that activity in the future are relevant ..., they do not lead inevitably to the conclusion that an injunction is unnecessary." United States v. Raymond, 228 F.3d 804, 814 (7th Cir.2000).
The defendants argue that they did more than voluntarily cease the illegal conduct, namely, the enforcement of the ordinance; they also repealed it. But this construes the nature of the plaintiffs' complaint too narrowly: they mounted a facial *1173 challenge to the constitutionality of the ordinance and did not object merely to its enforcement. They objected to its existence. Repeal therefore amounted merely to cessation of the challenged conduct.
Now, normally, as the defendants say, repeal of a statute in a way that satisfies all of the plaintiffs' complaints will warrant a finding of mootness because that legislative change makes it unlikely that the wrong will be repeated. See, e.g., Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (statutory amendment context). Here, however, we have the bare fact of repeal only. In Raymond, the Seventh Circuit stated that in considering whether a permanent injunction was proper even after voluntary cessation of illegal activity, I am to take into account: "(1) the gravity of harm caused by the offense; (2) the extent of the defendant's participation and his degree of scienter; (3) the isolated or recurrent nature of the infraction and the likelihood that the defendant's customary business activities might again involve him in such transaction; (4) the defendant's recognition of his own culpability; and (5) the sincerity of his assurances against future violations." 228 F.3d at 813 (citations omitted).
Here, the harm involved confining the children of Tinley Park to their homes or yards for most of a summer because they were not permitted to play in public places was considerable. The defendants' participation was not minor: it was their ordinance, and they enforced it; and it is hard to believe that they did not know it was unlawful. Any reasonable official would have known, and the unlawfulness of the ordinance was egregious enough that I might infer that the defendants did know. The infraction was not isolated: several persons were ticketed for the offense of "parental irresponsibility" because they allowed their children to play in public places in violation of this ordinance. The defendants have not recognized their culpability. They do not admit that the ordinance was unconstitutional or that it was wrong to attempt to enforce it. They do not even offer "protestations of repentance and reform," Grant, 345 U.S. at 632 n. 5, 73 S.Ct. 894.
Finally, and most significantly, the defendants refuse to offer any assurance against future violations. They do not make an official statement that the ordinance, or something like it, will not be reinstated. They have not said as much to the plaintiffs. They did not offer to me, either at the hearing or in their written submissions to the court, any such statement or assurance.
I find that the plaintiffs have demonstrated a reasonable probability of repetition, and have shown that the Raymond criteria are fulfilled. Therefore the case is not moot. Because the defendants have not contested the merits, on which the plaintiffs have prevailed in any event, I GRANT the motion for declaratory relief, holding Tinley Park Municipal Code § 99.013 to be facially and otherwise unconstitutional, and I GRANT the motion for a permanent injunction. The defendants are enjoined from reenacting the ordinance.
NOTES
[1] The ordinance makes it unlawful "to play any games upon any street, alley, or sidewalk, or other public places except when a block party permit has been issued by the President and the Board of Trustees." Tinley Park Munic.Ord.Code § 99.013. Section 10.02 of the Village Ordinances defines "public place" to include "any street, sidewalk, park, cemetery, school yard, or body of water."
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21 F.3d 1121
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.
Tony Lynn DAVIS, Petitioner-Appellant,v.Ron CHAMPION and Attorney General for the State of Oklahoma,Respondents-Appellees.
No. 93-5170.
United States Court of Appeals,Tenth Circuit.
April 26, 1994.
Before BRORBY and EBEL, Circuit Judges, and KANE,** District Judge.
ORDER AND JUDGMENT1
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.
Petitioner Tony Lynn Davis appeals the district court's denial of his petition for writ of habeas corpus. Mr. Davis was convicted in Tulsa County District Court of willful injury to a minor child and second degree murder. Mr. Davis' conviction was upheld by the Oklahoma Court of Criminal Appeals, Davis v. State, 759 P.2d 1033 (Okla.Crim.App.1988), appeal dismissed and cert. denied, 488 U.S. 999 (1989), and applications for state post-conviction relief were denied. Petitioner then filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Oklahoma. After conducting an evidentiary hearing, the district court denied the petition. We affirm.
Mr. Davis presented four issues in his habeas petition:
(1) insufficiency of the evidence to convict him;
(2) violation of his rights to due process and trial by jury when he did not personally waive his right to a twelve-person jury;
(3) ineffective assistance of counsel; and
(4) insufficiency of the information.
Because Mr. Davis did not raise claims 1 and 4 on direct appeal, the district court concluded that he had procedurally defaulted on those claims. See Osborn v. Shillinger, 861 F.2d 612, 622 (10th Cir.1988). It further concluded that Mr. Davis had not shown cause for the default and could therefore prevail only by showing that a fundamental miscarriage of justice would result from the denial of habeas relief. See Coleman v. Thompson, 111 S.Ct. 2546, 2565 (1991). The district court thoroughly reviewed Mr. Davis' contentions on claims 1 and 4 and concluded he had failed to demonstrate that a fundamental miscarriage of justice would occur if habeas relief were denied. We affirm this conclusion for substantially the reasons stated by the district court.
1
The basis for Mr. Davis' due process claim that he was improperly denied his right to a twelve-person jury stems from an incident during trial. While the jury was deliberating, one of the jurors began choking. The foreman of the jury, knowing that Mr. Davis was a CPR instructor, rushed from the jury room and yelled for Mr. Davis to help. Both Mr. Davis and his mother entered the jury room and aided in the juror's rescue. The juror was then taken to a local hospital. According to Mr. Davis' trial counsel, the judge then convened a meeting with the attorneys where he indicated that a mistrial would be granted if any of the defendants requested one, and where the attorneys and the judge discussed the possibility of going forward with eleven jurors. In a later conference in chambers, Mr. Davis' attorney, formally and on the record, waived his client's right to a twelve-person jury. Mr. Davis was not present at this conference, but he was in court later when the judge announced the intention of the parties to proceed with eleven jurors. Mr. Davis maintains that he did not consent to an eleven-person jury and would not have consented had he been given the opportunity.
2
The district court held an evidentiary hearing to examine Mr.Davis' contention that he was denied due process when he was not consulted before his attorney's waiver of a twelve-person jury. After the hearing, the court concluded that Mr. Davis had consented to his attorney's waiver of a twelve-person jury. It therefore dismissed the habeas petition. We agree that Mr. Davis' jury waiver claim is not a basis for habeas relief, although our analysis differs from that of the district court.
3
"Our review of a petition for habeas corpus is confined to alleged denials of federal constitutional rights." Tapia v. Tansy, 926 F.2d 1554, 1556 (10th Cir.), cert. denied, 112 S.Ct. 115 (1991). Relying on Patton v. United States, 281 U.S. 276 (1930), the district court implicitly concluded that there is a federal constitutional right to a twelve-person jury. Patton dealt with a situation similar to the one present here: defendant's counsel waived objection to an eleven-person jury after the twelfth juror had become ill and unable to continue. In holding that the defendant could waive his right to a twelve-person jury, the Court stated: "before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant." Id. at 312. While the language of Patton can be read to find a federal constitutional right to a twelve-person jury, the Supreme Court's later holding in Williams v. Florida, 399 U.S. 78 (1970), significantly undercuts that reading of Patton.2 In Williams, the Court held that the Sixth Amendment does not mandate twelve-person juries. Williams, 399 U.S. at 102-03. In so doing, the Court examined the historical roots of the twelve-person jury and criticized Patton as an example of the Court's previous "willingness to re-examine earlier assertions about the nature of 'jury trial' in almost every respect except the 12-man-jury requirement." Id. at 92 n. 30. The Court in Williams concluded that in analyzing the various aspects of the right to trial by jury, "[t]he relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the purposes of the jury trial. Measured by this standard, the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment." Id. at 99-100. Thus, Mr. Davis had no federal constitutional right to a twelve-person jury in his state criminal trial. See Mendrano v. Smith, 797 F.2d 1538, 1542 (10th Cir.1986); Cooks v. Spalding, 660 F.2d 738, 739 (9th Cir.1981), cert. denied, 455 U.S. 1026 (1982); United States ex rel. Burnett v. Illinois, 619 F.2d 668, 669 (7th Cir.), cert. denied, 449 U.S. 880 (1980).3
4
While Mr. Davis did not have a federal right to a twelve-person jury, he did have such a right under the provisions of the Oklahoma constitution. Okla. Const., art. II, 19. In general, however, "[a] federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984). For the denial of a state-based right to support the issuance of a writ of habeas corpus the petitioner must show that the denial was arbitrary, unprincipled, unreasonable and with "so little basis in law and fact as to constitute a denial of due process." United States ex rel. Burnett, 619 F.2d at 670; see also Holcomb v. Murphy, 701 F.2d 1307, 1309 (10th Cir.) (state court trial error properly considered in federal habeas only where the "error renders the trial so fundamentally unfair as to deprive the petitioner of federal constitutional rights"), cert. denied, 463 U.S. 1211 (1983).
5
In Hayes v. Oklahoma, 541 P.2d 210, 212 (Okla.Crim.App.1975), the court observed that there is a
6
category of cases where counsel in open court and in the absence of the accused waives trial by jury on behalf of the accused. This situation may raise a presumption of a valid waiver and will be so held unless the accused presents evidence to show that he either did not authorize or consent to counsel's waiver or evidence that he did not ratify the waiver in any manner. If the defendant presents such evidence, then a rebuttable presumption arises that the defendant did not waive trial by jury. The State then can only rebut this presumption if the evidence from the record affirmatively and overwhelmingly shows the defendant consented, authorized or ratified counsel's waiver upon his behalf.
7
After the evidentiary hearing, the district court found that defendant had consented to the waiver before his attorney entered it on the record, and that when the trial judge announced in open court the parties' intention to proceed with eleven jurors, Mr. Davis did not object. We have reviewed these factual findings and do not find them clearly erroneous. See United States v. Whalen, 976 F.2d 1346, 1347 (10th Cir.1992).
8
Because Oklahoma law, as stated above, recognizes a valid waiver of a twelve-person jury under facts similar to this case, the procedure used by the trial court could not have been an error of state law sufficiently egregious to amount to a denial of due process.4 Thus, we conclude that any irregularity in Mr. Davis' waiver of his state right to a twelve-person jury did not reach constitutional dimension.5 Because Mr. Davis' claim of ineffective assistance of counsel relies solely on his attorney's role in agreeing to an eleven-person jury, that claim is similarly without constitutional implication.6
9
The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.
**
Honorable John L. Kane, Jr., Senior District Judge, United States District Court for the District of Colorado, sitting by designation
1
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 the court's General Order filed November 29, 1993. 151 F.R.D. 470
2
Indeed, the Fifth Circuit has noted that Williams may have overruled Patton sub silentio. United States v. Spiegel, 604 F.2d 961, 965 n. 9 (5th Cir.1979), cert. denied, 446 U.S. 935 (1980)
3
The cases cited by the district court, while involving waiver of the right to a twelve-person jury, are distinguishable. Some are cases in which the right, as here, emanates from state law. See, e.g., State v. Roland, 807 P.2d 705, 707 (Kan.App.1991); State v. Lutz, 760 P.2d 249, 251 (Or.1988); State v. Reid, 747 P.2d 560, 563 (Ariz.1987); Walker v. Alaska, 578 P.2d 1388, 1390 (Alaska 1978). Others are direct appeals from convictions in federal district courts where the Federal Rules of Criminal Procedure dictate twelve-person juries and specify how that right is to be waived, see Fed.R.Crim.P. 23, and how alternate jurors are to be used, see Fed.R.Crim.P. 24(c). See, e.g., United States v. Neal, 692 F.2d 1296, 1307-08 (10th Cir.1982); United States v. Taylor, 498 F.2d 390, 392 (6th Cir.1974); United States v. Baccari, 489 F.2d 274, 275 (10th Cir.1973), cert. denied, 417 U.S. 914 (1974); Leser v. United States, 358 F.2d 313, 316-17 (9th Cir.), cert. dismissed, 385 U.S. 802 (1966)
The only case cited by the district court involving a 2254 petition which implies a federal right to a twelve-person jury is Peek v. Kemp, 746 P.2d 672 (11th Cir.1984), which was vacated at 746 F.2d 699 (1984). As noted by the district court, the opinion on rehearing at 784 F.2d 479 does not address the waiver issue.
Three other 2254 cases cited by the district court hold, correctly, that there is no federal constitutional right to a twelve-person jury. See Vinston v. Lockhart, 850 F.2d 420, 424 (8th Cir.1988); Cooks v. Spalding, 660 F.2d 738, 739 (9th Cir.1981), cert. denied, 455 U.S. 1026 (1982); United States ex rel. Burnett v. Illinois, 619 F.2d 668, 669 (7th Cir.), cert. denied, 449 U.S. 880 (1980).
4
While we agree with Mr. Davis that a better procedure would be to secure a written waiver from a defendant, or at least to require a defendant to indicate his intent to waive on the record, the federal Constitution does not require such a procedure regarding this state right. See United States ex rel. Burnett, 619 F.2d at 671
5
As an analogy, we note that, under the circumstances of this case, Fed.R.Crim.P. 23(b) allows a federal district court judge, without stipulation of the parties and in his or her discretion, to excuse a juror for just cause and accept a verdict by the remaining eleven jurors. Fed.R.Civ.P. 23(b). This section of Rule 23 has been held constitutional by numerous courts. United States v. Ahmad, 974 F.2d 1163, 1164 (9th Cir.1992)(citing cases)
6
Mr. Davis' claim of ineffective assistance of counsel is based solely on his counsel's role in waiving the twelve-person jury; this claim was not raised on direct appeal. We do not address the complexities of the exhaustion and procedural bar issues, however, because the claim is wholly without merit. Cf. Granberry v. Greer, 481 U.S. 129, 131, 135 (1987)(failure to exhaust does not preclude consideration of merits when no colorable federal claim is raised); Cain v. Redman, 947 F.2d 817, 820 (6th Cir.1991)(unresolved issues of exhaustion and procedural default need not be addressed when federal constitutional claim is meritless), cert. denied, 112 S.Ct. 1299 (1992)
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981 F.Supp. 679 (1997)
Ralph KEEN, et al., Plaintiff,
v.
The UNITED STATES of America, Defendant.
No. Civ.A. 97-01565(CKK).
United States District Court, District of Columbia.
August 7, 1997.
*680 Charles W. Shipley, Shipley, Jennings & Champlin, P.C., Tulsa, OK, Judith Shapiro, Hobbs, Straus, Dean & Walker, Washington, DC, for Plaintiffs.
Steven Carroll, James J. Clear, Department of Justice, Environment & Natural Resources Division, Indian Resources Section, Washington, DC, for Defendants.
MEMORANDUM OPINION
KOLLAR-KOTELLY, District Judge.
The Plaintiffs in the above-captioned case filed a complaint seeking a declaratory judgment and permanent injunction against the Bureau of Indian Affairs (BIA), alleging that the BIA, through its agents, took action in excess of its legal authority and contrary to federal and tribal law. Thereafter, the Plaintiffs filed a Motion for a Preliminary Injunction. The Defendants moved to transfer the case to the Eastern District of Oklahoma. In a separate pleading, the Defendants moved to dismiss the Complaint on the grounds that (1) the Plaintiffs had failed to state a cause of action against the Defendants; (2) the Cherokee Nation is an indispensable party that has not been named in the action, and (3) the Plaintiffs lack standing to bring this cause of action. The Plaintiffs filed Oppositions to both of the Defendants' Motions, and the Defendants filed a Reply to the Opposition to the Motion to Transfer. On August 5, 1997, the parties appeared before the Court for a hearing on the Motion to Dismiss, the Motion to Transfer, and the Motion for a Preliminary Injunction. The representations at the August 5, 1997, hearing, including the discussions with the Court, are incorporated into this Order. Upon considering the Motion to Dismiss, the Opposition thereto, the oral arguments on the Motion to Dismiss, the entire record herein, and the relevant law, the Court finds that the Plaintiffs have not established standing to maintain the instant cause of action. Accordingly, the Motion to Dismiss is GRANTED.
I. BACKGROUND[1]
A. THE COMPLAINT
The Plaintiffs, three Justices of the Cherokee Nation's Judicial Appeals Tribunal (the *681 Tribunal), filed this action against the United States of America, the United States Department of the Interior Bureau of Indian Affairs, the Assistant Secretary of Indian Affairs Ada Deer, in her capacity as the Commissioner of Indian Affairs, the Deputy Commissioner of Indian Affairs Hilda Manuel, and James Fields, the Muskogee Area Director for the BIA. Pursuant to the Administrative Procedure Act, 5 U.S.C. § 702 (1994), the Plaintiffs seek judicial review of the BIA's final agency decision to reassume responsibility for law enforcement in the Cherokee Nation. Complaint ¶ 4.[2]
In summary, the Plaintiffs contend that the BIA's reassumption of the law enforcement program is invalid because the BIA did not follow the procedures required by 25 U.S.C. § 450m (1994),[3] for the reassumption of the Law Enforcement Program, and that as a result of this unlawful reassumption of the Law Enforcement Program, the "balance of powers among the three branches of the Cherokee Nation's constitutional government has been destroyed." Complaint ¶ 2. Furthermore, the Plaintiffs argue that upon reassuming the Law Enforcement Program, the BIA had an obligation to enforce tribal and federal laws, and that the BIA has failed to fulfill this obligation. Finally, Plaintiffs complain that the BIA assisted in the take-over of the Courthouse, and has prevented them from obtaining their personal property from the Courthouse.
As relief for these violations, the Plaintiffs seek (1) a declaratory judgment that the Defendants' actions were arbitrary, capricious, an abuse of discretion, and beyond their lawful authority; and (2) a permanent injunction ordering the Defendants to withdraw as law enforcement officers in the Cherokee Nation[4] until such time as they are legally requested to assume that role, and to cease preventing the Cherokee Nation Marshal's Service (the Marshal's Service) from performing its law enforcement duties, including but not limited to the service of pending bench warrants, orders of detention, and orders declaring the actions of the Principal Chief as unconstitutional; or alternatively; (3) a permanent injunction ordering the BIA to enforce the Tribunal Orders, including but not limited to service of warrants and orders issued by the Tribunal; (4) a permanent injunction ordering the Defendants to refrain from interfering with tribal governmental processes; and (5) any other just and appropriate relief.
B. SUMMARY OF FACTS PRESENTED IN COMPLAINT AND PLEADINGS, AS SUPPLEMENTED AT THE ORAL HEARING ON AUGUST 5, 1997
The following is a summary of the undisputed and/or uncontroverted facts as adduced in the Complaint, pleadings, and at the hearing.
*682 The Plaintiffs allege that on April 15, 1997, eight of fifteen Cherokee Nation Tribal Council (Tribal Council) members convened a meeting called by Principal Chief Joe Byrd. Complaint ¶ 19. At this April 15, 1997, meeting the eight Tribal Council members and Principal Chief Byrd passed a resolution agreeing to request the BIA to institute a replacement contingent of law enforcement officers for a period of time up to eight weeks. Id. ¶ 18. Also on April 15, 1997, several citizens in the Cherokee Nation filed suit against the Chief and the Tribal Council challenging the legality of the April 15, 1997, meeting. Id. ¶ 19.[5]
On April 18, 1997, Assistant Secretary Deer, who is the Assistant Secretary of Indian Affairs, sent a letter to Principal Chief Byrd advising him that the BIA had concluded that there was an imminent jeopardy to the public safety within the Cherokee Nation's Indian country jurisdiction. Assistant Secretary Deer informed Principal Chief Byrd that the BIA would reassume the Law Enforcement Program effective immediately, and would continue the reassumption until the Department of the Interior was satisfied that the conditions creating the imminent jeopardy were resolved. Id. ¶ 24; see also Ex. M of Pls.' Mot. for Prelim. Inj.
In her letter, Assistant Secretary Deer set out the facts that supported the BIA's finding of imminent jeopardy: the "confirmed reports that calls for law enforcement services are not being responded to;" the "strong recommendation of the Muskogee Area Director and the concurrence of the Deputy Commissioner Indian Affairs that the program should be assumed on a temporary basis;" the county sheriff would not respond to calls for law enforcement due to "questions regarding the authenticity of the cross-commissioning from the Cherokee Nation[, which is] a clear indication that law enforcement coverage is inadequate;" the "existence of two armed Cherokee marshal services representing opposing political factions [which has] created confusion, disorder, and fear among the Cherokee population;" and the declaration of a state of emergency issued by a majority of the Tribal Council and the Principal Chief. In this letter, Assistant Secretary Deer informed the Principal Chief that the Nation had a right to a hearing on this decision within 10 days. Id.
On April 24, 1997, the Tribunal, of which the Plaintiffs are members, ruled that the April 15, 1997, meeting was convened contrary to Article V, § 5 of The Cherokee Nation Constitution, which provides that "[n]o business shall be conducted by the Tribal Council, unless at least two-thirds of the members thereof regularly elected and qualified shall be in attendance, which members constitute a quorum." Id. ¶¶ 22-23. The Order further ruled that the members met without having published the required ten day notice. Id. The Order declared that "all decisions rendered at such meeting are void and illegal" and enjoined the Tribal Council members from taking any action pursuant to the illegal meeting and declared that the meeting was unconstitutional and that the resulting request for the BIA's assistance was null and void. Id.
On May 2, 1997, the Tribunal issued show cause orders to the Principal Chief and Deputy Chief, directing them to appear before the Tribunal on May 27, 1997. See Complaint at 8 n. 2. On May 27, 1997, the Principal Chief and the Deputy Chief did not appear before the Tribunal and the Tribunal issued warrants for their arrest.[6]Id. The Plaintiffs allege that the BIA has not served these bench warrants, and improperly relied on the ultra vires actions of Principal Chief Byrd and the Tribal Council, despite the fact that the Tribunal issued an Order declaring the actions of Principal Chief Byrd and the Tribal Council as unconstitutional.
In the Complaint, the Plaintiffs alleged summarily that the BIA, as well as the alleged personal security force of Principal Chief Byrd, took physical control of the Courthouse on June 20, 1997. They further *683 allege that the BIA has prohibited the Tribunal from entering the building either to hold court or to obtain their personal property. In support of these factual allegations, the Plaintiffs referred the Court to several affidavits of persons who were either present at the time that the BIA appeared at the Courthouse on June 20, 1997, or who arrived within a few hours thereafter. See Exs. 3, 5, 6, 7, 8 of the Pls.' Mot. for Prelim. Inj. The Plaintiffs also relied on the affidavits of the Plaintiffs to substantiate these factual allegations. See Exs. 2, 4, 9 of the Pls.' Mot. for Prelim. Inj. At the hearing the Plaintiffs produced another affidavit of Justice Dwight Birdwell, which they claim is further support for their version of the incident at the courthouse. See Hearing Ex. 1.
During oral argument, the Court noted that the affidavits of the Plaintiffs did not indicate that the Plaintiffs were present at the Courthouse on June 20, 1997. Counsel for the Plaintiffs conceded that the Plaintiffs did not attempt to enter the Courthouse on June 20, 1997, and were in fact not even present on June 20, 1997. The Plaintiffs did not attempt to gain access to the Courthouse until three days later. In addition, Counsel for the Plaintiffs indicated that when the Plaintiffs arrived at the Courthouse on June 23, 1997, they found the Courthouse locked, and that it was Principal Chief Byrd's personal security forces, not the BIA, who prevented them from entering the building. Counsel further indicated that the BIA was not present at the Courthouse when the Plaintiffs arrived.
C. THE COURT'S FINDINGS AS TO THE EVENTS AT THE COURTHOUSE ON JUNE 20, 1997
Upon reviewing the information provided to the Court in the Complaint, pleadings, and oral argument, the Court makes the following findings as to the events surrounding the June 20, 1997, incident at the Courthouse:
According to all accounts of the events that occurred on June 20, 1997, the personal security forces of Principal Chief Byrd acted alone in taking control of the Courthouse at approximately 4:00 a.m. on June 20, 1997. See Affidavit of Patrick M. Ragsdale, Ex. 4, ¶ 17, of Pls.' Mot. for Prelim. Inj.; Affidavit of Sharon Wright, Ex. 9, ¶ 8 of Pls.' Mot. for Prelim. Inj.; Incident Report of Perry Proctor (Incident Report), Ex. B of Def.'s Mot. to Dismiss. The County Sheriff's office requested the assistance of the BIA in preventing an armed conflict between Principal Chief Byrd's security force, and two members of the Marshal's Service who were also present in the Courthouse. See Incident Report. The State District Attorney directed the actions of the Cherokee County Sheriff's deputies in cordoning off the Courthouse. See Incident Report; A.F. of Catwalk Smith, ¶¶ 2, 4; A.F. of William Ragsdale, Ex. 4, ¶ 19.
At the oral argument, Counsel for the Defendants did not contest the fact that the BIA, specifically Perry Proctor, prevented people from entering the building, and requested the two former members of the Marshal's Service to exit the building. See Incident Report. Both parties agreed that eventually the BIA assisted in returning the personal property to the Marshals, facilitated turning over investigative papers to the United States Attorney, and accepted the equipment from the former members of the Marshal's Service. See id.
II. MOTION TO DISMISS
The Defendants contest the standing of the Plaintiffs to assert the claims set forth in the Complaint.[7] The Defendants argue that the Plaintiffs have no individual right to challenge the decision of the BIA to reassume the law enforcement program of the Cherokee Nation. The Defendants further argue that the BIA has not taken any actions to thwart the Tribunal from functioning. They argue that the BIA submitted the arrest warrants for review to the Solicitor of the BIA in order to determine whether the BIA has the jurisdiction to serve the warrants, and claim that they have not prevented anyone else from serving the warrants. The Defendants have not addressed whether the *684 Plaintiffs have standing to assert a claim that the BIA has withheld their property.
The Plaintiffs argue that they have standing to challenge the reassumption of the law enforcement based on three grounds. First, they claim that their rights of tribal self-government and tribal self-determination have been compromised by the BIA's non-compliance with the statutory and regulatory requirements of reassumption. Second, they claim that the fact that the BIA has failed to enforce the orders and warrants issued by the Tribunal has removed their authority to ensure that there is compliance with tribal constitutional law. Finally, the Plaintiffs allege that the BIA has prevented them from entering the Courthouse to recover their personal property. The Plaintiffs seek review of the BIA's actions pursuant to 5 U.S.C. § 702. This Court has jurisdiction to entertain this federal questions pursuant to 28 U.S.C. § 1331 (1994).
ANALYSIS
The Plaintiffs bear the burden of establishing that they have standing to bring the instant cause of action. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. at 2136-37 (1992); Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975). In deciding whether to dismiss the case based on a lack of standing, the Court is required to "`construe the complaint in favor of the complaining party.'" Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 55 (D.C.Cir.1991) (quoting Warth, 422 U.S. at 501, 95 S.Ct. at 2206-07). The requirements of standing, however, are not simply pleading requirements but are "an indispensable part of the plaintiff's case [and] each must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. with the manner and degree of evidence required at the successive stages of litigation." Lujan, 504 U.S. at 561, 112 S.Ct. at 2136-37.
Standing is an "essential and unchanging part of the case-or-controversy requirement of Article III." Id. at 560, 112 S.Ct. at 2136. The Plaintiffs have standing only if they allege that (1) they have suffered a personal injury that is concrete and particularized, and not conjectural or hypothetical, but actual and imminent, id.; (2) that this injury is traceable to the Defendants' allegedly unlawful conduct, see Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984); and (3) that the injury is likely to be redressed by the requested relief. Id.; see also Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 498 (D.C.Cir.1994). Upon considering the three bases of standing proffered by the Plaintiffs, the Court concludes that they have no standing to assert this cause of action against the Defendants.
1. The Plaintiffs do not have standing based on an injury to the rights of self-determination or self-governance.
The letter from Assistant Secretary Deer clearly establishes that the BIA proceeded to reassume the law enforcement functions based on the emergency provisions of 25 U.S.C. § 450m. This provision requires that the Secretary of the Interior, when making an emergency reassumption of a program, must give notice thereof to "the tribal organization, and the tribe served by the tribal organization." 25 U.S.C. § 450m. The statute also provides that "the Secretary shall provide the tribal organization with a hearing on the record within ten days or such later date as the tribal organization may approve." Id.
The Plaintiffs attempt to establish standing to challenge the BIA's compliance with this statute by arguing that the BIA, in failing to conduct a hearing before the tribal organization,[8] has deprived the Cherokee Nation and them personally of the right of self-governance and self-determination. The Plaintiffs claim only that the BIA had a duty *685 to hold a hearing,[9] and that in failing to hold the hearing,[10] the Nation as well as themselves have been deprived of the right to self-governance and self-determination. The Plaintiffs do not argue that they personally were entitled to a hearing, nor can they make such a claim.[11] Thus to the extent that they ground their claim of injury solely in the government's failure to comply with the statute, standing cannot exist because simply claiming a right to "to have the Government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction on a federal court." Allen, 468 U.S. at 754, 104 S.Ct. at 3326.
The injury claimed by the Plaintiffs is abstract, and could be raised by any member of the Cherokee nation on their own behalf or on behalf of the Nation. The alleged denial of the abstract right of self-determination or self-governance cannot support the standing to sue. See id. (finding no standing where plaintiffs alleged abstract claim that they had suffered a "stigmatizing injury often caused by racial discrimination"); Valley Forge v. Americans United, 454 U.S. 464, 486-87, 102 S.Ct. 752, 765-77, 70 L.Ed.2d 700 (1982) (finding no standing where the injury alleged was only that the Establishment Clause had been violated by the government's transfer of land to a church-related college); Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206-07, 45 L.Ed.2d 343 (1975) (finding no standing for plaintiffs alleging that Reserve membership of Members of Congress violated the Incompatibility Clause because such claim amounted to no more than a "a generalized interest of all citizens in constitutional governance," and such an injury was abstract, not concrete and particular). Without finding that the Plaintiffs have suffered a concrete or particularized injury, the Court is precluded from finding standing. Lujan, 504 U.S. at 561, 112 S.Ct. at 2136-37.
Furthermore, the rights of self-determination and self-governance, of which the Plaintiffs claim they have been deprived, are held generally by the people of the Cherokee Nation. This fact also prevents the Court from finding that the Plaintiffs have alleged a particularized and concrete injury because "where the asserted harm is a generalized grievance shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Warth, 422 U.S. at 499, 95 S.Ct. at 2205. "The term `generalized grievance' does not just refer to the number of persons who are allegedly injured; it refers to the diffuse and abstract nature of the injury." Akins v. Federal Election Comm., 101 F.3d 731, 737 (1997); see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 2931-32 (1974) (finding that plaintiffs who sought to have the judiciary compel the executive to comply with the Incompatibility Clause had alleged only a "generalized interest of all citizens in constitutional governance [which is] an abstract injury" insufficient to support standing). The Court concludes that the Plaintiffs' first basis for standing is insufficient because they *686 have alleged an abstract injury and have no more than a generalized grievance.[12]
2. The Plaintiffs do not have standing based on the BIA's alleged failure to serve the Tribunal's arrest warrants, or comply with its other orders.
The Plaintiffs argue that by failing to serve the arrest warrants, and failing to acknowledge their Orders which declared as invalid the acts of the April 15, 1997 Tribal Council, the BIA has abrogated their authority to act as a tribunal. At the hearing, the Plaintiffs relied on Raines v. Byrd, ___ U.S. ___, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), in support of this argument.
Raines, however, is inapposite. In Raines, the Plaintiffs filed a complaint against the Secretary of the Treasury and the Director of the Office of Management and Budget. See id. at ___, 117 S.Ct. at 2313-17. The Plaintiffs were Senators and Congressmen who voted against the Line Item Veto Act (Act). See id. They challenged the constitutionality of the Act as an unconstitutional expansion of the President's power. See id. They also alleged that the Act granted the President the authority to cancel a provision of a federal law, which had the effect of allowing the President to repeal a law without meeting the requirements of bicameral passage and presentment. See id.
In considering the issue of legislative standing, the Supreme Court held that the plaintiffs did not have standing to challenge the Act. In so holding, the Court rejected the plaintiffs' argument that the Act injured them "`directly and concretely ... in their official capacities'" by nullifying their votes. Id.
The Raines plaintiffs, relying on Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), argued that the Act had the effect of nullifying their votes. The Court found that the plaintiffs alleged neither that they had been treated differently from other members of the legislature, nor that they had been deprived of a personal entitlement. Raines, ___ U.S. at ___, 117 S.Ct. 2312, 138 L.Ed.2d 849. Rather, the plaintiffs' claim amounted to only a loss of their political power. The Supreme Court held that the plaintiffs' votes "were given full effect [but] [t]hey simply lost that vote." Id. at ___, 117 S.Ct. at 2313-17.
The Plaintiffs in the instant case argue that the Raines case supports their position because they, unlike the Raines plaintiffs, can show that the governmental act at issue nullifies their power. The Court finds that Raines in fact supports a finding that the Plaintiffs do not have standing to challenge the BIA's alleged decision not to serve the warrants. The Plaintiffs, like those in Raines, have not been deprived of their authority to issue orders or pass on the legality of executive action. They assert an injury to their interest in having the BIA execute their orders, but not in their right or ability to issue those orders. The former is an interest that is shared by all in the Cherokee nation, and thus is nothing more than "a generalized grievance[ ] about the conduct of government." American Federation of Government Employees v. Pierce, 697 F.2d 303, 305 (D.C.Cir.1982) (holding that a congressman did not have standing to challenge the execution of the law because such a claim is a generalized grievance). Rather than being *687 denied the right to act as a member of the tribunal, the Plaintiffs simply have lost their political power. Thus, the Plaintiffs, as in Raines, have not articulated a particular and concrete injury upon which standing may be grounded.
3. The Plaintiffs lack standing based on an the allegation that the BIA has deprived them of their personal property.
The Plaintiffs claim that the BIA denied other persons access to the Courthouse during a discrete period of time in which there was a potential armed conflict, to which the BIA responded at the request of the County Sheriff's Office. The Plaintiffs argue that from these facts, the Court can conclude that they have been locked out of the Courthouse as a result of the BIA's actions. Yet the Plaintiffs conceded that when they attempted to enter the Courthouse on June 23, 1997, the BIA was not present, and the BIA took no action to prevent them from entering the Courthouse that day. Apparently, it was Principal Chief Byrd's personal security force who prohibited their access on June 23, 1997.
The Plaintiffs' argument that the BIA is the cause of their inability to obtain their property is undercut greatly by the fact that the BIA did not participate in the take over of the Courthouse; that the BIA was present at the scene only at the request of the County Sheriff's office; that the BIA was part of a joint law enforcement action to prevent an armed conflict; that the BIA was present at the courthouse only for as long as it took to diffuse the potential for an armed conflict; that the BIA left the building on June 20, 1997; that the BIA did not lock the building upon its departure; and that the BIA has not returned to the Courthouse since June 20, 1997.
Traceability does not exist if the injury is the "`result [of] the independent action of some third party not before the court.'" Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. at 2136-37 (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976)); see also Bennett v. Spear, ___ U.S. ___, ___, 117 S.Ct. 1154, 1164, 137 L.Ed.2d 281 (1997). Causation may exist, however, where "the injury [is] produced by [the] determinative or coercive effect upon the action of someone else." Bennett, ___ U.S. at ___, 117 S.Ct. at 1164.
The facts of this case do not support a finding that the current lock-out of the Courthouse by the security force of the Principal Chief is fairly traceable to the BIA. The BIA assisted the Sheriff in diffusing a conflict between two members of the Marshal's Service and the security forces of Principal Chief Byrd. The Plaintiffs have been deprived of their property by the independent actions of the personal security forces of Principal Chief Byrd. The BIA's assistance to the County Sheriff cannot be considered as having "the determinative or coercive effect" upon the decision of the personal security force of Principal Byrd to lock the Courthouse and deny them access to their personal property. In this case, the Plaintiffs argument on causation fails because "[t]he links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain [the Plaintiffs'] standing." See Allen, 468 U.S. at 757-58, 104 S.Ct. at 3327-28.
Not only do the Plaintiffs fail to meet the traceability element of standing as to this ground for standing, they also fail to meet the redressability requirement. Redressability "examines the causal connection between the alleged injury and the judicial relief requested." Allen, 468 U.S. at 753 n. 19, 104 S.Ct. at 3325. As relief, the Plaintiffs seek to have the BIA withdraw. The Plaintiffs have failed to show how the withdrawal of the BIA will provide them with their property. The persons in actual control of the Plaintiffs' property are not parties to this action, and thus would not be obligated to observe the Court's ruling in this case. See Defenders of Wildlife, 504 U.S. at 570, 112 S.Ct. at 2141-42. The relief requested in this case, namely the return of property held by persons not party to this action, goes "well beyond the violation of the law alleged" by the Plaintiffs. Allen, 468 U.S. at 753 n. 19, 104 S.Ct. at 3325 n. 19.
*688 III. CONCLUSION
For the foregoing reasons, the Court concludes that the Plaintiffs have failed to meet their burden of establishing standing to challenge the BIA's decision to reassume the law enforcement program. Accordingly, the Court shall dismiss the above-captioned case. The Court shall issue an Order consistent with the foregoing Memorandum Opinion.
NOTES
[1] In the Complaint, the Plaintiffs provide not only a summary of the facts that form the basis of their allegations in the Complaint, but a rather comprehensive history of the events leading up to the specific conduct of which they complain. Consequently, many of the facts mentioned in the Complaint are not relevant to the Court's determination of the Motion to Dismiss for lack of standing. Thus, the Court will summarize only those facts that are dispositive to the instant Motion.
[2] On July 2, 1990, the United States and the Cherokee Nation executed a Compact on Self-Governance. As explained by the parties during oral argument, this Compact allowed the Cherokee Nation to assume from the federal government the control of federal programs in the Cherokee Nation, which included law enforcement. On May 13, 1991, the Cherokee Nation, the United States of America, the State of Oklahoma and its political subdivisions, the various board of county commissioners, and various law enforcement agencies entered into a compact, whereby the parties agreed to the cross-commissioning of law enforcement peace officers.
[3] Reassumption of a program occurs when the Secretary of the Department of Interior "rescind[s a] contract or grant agreement, in whole or in part, and assume[s] or resume[s] control or operation other program, activity, or service involved." 25 U.S.C. § 450m (1994). The BIA unilaterally may reassume a program on either an non-emergency basis or an emergency basis. See 25 U.S.C. § 450m; 25 C.F.R. 900.247. Section 450m provides that the BIA shall provide notice to the "tribal organization, and the tribe served by tribal organization." 25 U.S.C. § 450m. Additionally, the BIA "shall provide the tribal organization with a hearing on the record." Id. At the hearing, the Parties explained the procedures set out in § 450m have been incorporated into the Compact.
[4] There is a dispute as to whether the Marshals were fired lawfully.
[5] These persons claimed that the meeting was not held in accordance with the requirements Article V, §§ 4, 5 of The Cherokee Nation Constitution. See The Cherokee Nation Constitution, Ex. A of Pls.' Mot. for Prelim. Inj.
[6] On May 3, 1997, the Tribal Council and Principal Chief Byrd voted to impeach the Tribunal. The lawfulness of this impeachment is in dispute.
[7] In the Motion to Dismiss, the Defendants offer additional grounds for dismissal. As noted above, however, this Order does not address those bases for dismissal.
[8] Section 450b(l) defines a tribal organization as "the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities."
[9] The statute also requires the BIA to give notice to the "tribal organization, and the tribe served by the tribal organization." 25 U.S.C. § 450m. The Plaintiffs agreed with the government that the BIA notified Principal Chief Byrd of the reassumption, and that Principal Chief Byrd was designated in the Compact of Self-Governance as the official entitled to receive such notice. The Plaintiffs thus did not claim that the BIA failed to give notice.
[10] Principal Chief Byrd and a majority of the Tribal Council passed a resolution waiving the hearing, and thus no hearing took place. The Plaintiffs did not challenge that the hearing could be waived. Rather, they claimed that the resolution was invalid because the Tribal Council did not have a quorum at the time that it was passed. The Plaintiffs argued that the BIA had a responsibility to ensure that a hearing was held or that in the event of a waiver, that the waiver was valid. This argument, however, is superfluous because notwithstanding the reason that the hearing was not held, these Plaintiffs have not established the injury element of standing.
[11] As noted above, the Plaintiffs agreed that there was notice to the proper party. Additionally, the Plaintiffs did not argue that they personally were entitled to have the hearing. Such an argument would run contrary to § 450m, which directs that a hearing shall be held before the tribal organization, and § 450b(l), which defines the tribal organization as the governing body; i.e., the Tribal Council. The Plaintiffs argued only that the BIA should not have accepted Principal Chief Byrd's waiver of the hearing.
[12] The Plaintiffs articulated a related argument at the hearing. The Plaintiffs argued that the BIA unlawfully accepted an invalid resolution of the Tribal Council, which amended the Annual Funding Agreement to provide for the reprogramming of funds for law enforcement through an amendment to the Annual Funding Agreement. The resolution, according to the Plaintiffs, is infirm because a quorum was not present for the vote. This claim, as well as the argument that the BIA has breached a trust responsibility owed to the nation as a whole, are insufficient to maintain standing for the same reasons that the Plaintiffs' argument regarding the failure to hold a hearing did not support standing.
Additionally to the extent that the Plaintiffs' claim with respect to the Annual Funding Agreement could be characterized as a complaint that they have been deprived of property, it is unclear on this record whether or not the Cherokee Nation has reimbursed the BIA for the reassumption of the law enforcement. Nonetheless, the Plaintiffs do not have an individual interest in tribal funds, and cannot argue that the reimbursement of these funds to the BIA deprived them of the right to tribal funds. See Seneca Constitutional Rights Org. v. George, 348 F.Supp. 51, 58 (W.D.N.Y.1972).
|
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3629
JOSEPH BERNAL, individually and on
behalf of others similarly situated,
Plaintiff-Appellant,
v.
NRA GROUP, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 1904 — Gary Feinerman, Judge.
____________________
ARGUED MARCH 28, 2019 — DECIDED JULY 19, 2019
____________________
Before RIPPLE, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Joseph Bernal bought a monthly pass
to Six Flags amusement parks. The contract said that if he
fell behind on his payments, he would “be billed for any
amounts that are due and owing plus any costs (including
reasonable attorney’s fees) incurred by [Six Flags] in attempt-
ing to collect amounts due.” This case asks whether a debt
collector’s fee counts as a collection cost under that lan-
2 No. 17-3629
guage. We hold that it does. The contract unambiguously
permits Six Flags to recover any cost it incurs in collecting
past-due payments, and that includes a standard collection
fee.
I. Background
After Bernal missed several monthly payments, Six Flags
hired AR Assist, a debt collector, to help recover the balance.
Under their contract, AR Assist could charge Six Flags a 5%
management fee plus an additional amount based on the
number of days the debt was delinquent (in this case, an
additional 20%). No one disputes that this was a reasonable
fee, nor that arrangements like this are common in the
market. In turn, AR Assist hired the NRA Group as a sub-
contractor.
NRA then sent Bernal a collection letter asking for the
$267.31 he owed, plus $43.28 in costs—which is technically
even less than the 25% fee NRA was authorized by contract
to charge. The letter gave Bernal two options: He could pay
the sum directly to NRA, which would then remit the collec-
tion fee to AR Assist, minus its own fee. Or he could pay the
sum to Six Flags, in which case Six Flags would have to pay
AR Assist separately.
Bernal did neither. He reasoned that it couldn’t possibly
have cost NRA $43.28 to mail a single collection letter. So
rather than pay, he filed this class-action lawsuit under the
Fair Debt Collection Practices Act (“FDCPA”), alleging that
NRA charged a fee not “expressly authorized by the agree-
ment creating the debt.” 15 U.S.C. § 1692f(1). Each class
member had entered into a contract with essentially the
same language.
No. 17-3629 3
After rejecting the parties’ motions for summary judg-
ment, the district judge held a bench trial. As part of his legal
conclusions, he held that the percentage-based collection fee
was expressly authorized by the following language in the
initial agreement:
If your account is in arrears for more than
30 days (after you miss two payments) and …
the Minimum Term has expired, then your ac-
count will be permanently cancelled and you
will be billed for any amounts that are due and
owing plus any costs (including reasonable at-
torney’s fees) incurred by us in attempting to
collect amounts due or otherwise enforcing
this agreement.
The judge reached this conclusion even though two other
circuits have said otherwise when interpreting almost
identical language. Because no class member was charged
more than what was authorized by the contracts, the judge
entered judgment for NRA.
II. Discussion
The parties agree that NRA is allowed to collect this fee if
it was “expressly authorized by the agreement creating the
debt.” § 1692f(1). That, in turn, depends on whether the
collection fee was a “cost[] … incurred by [Six Flags] in
attempting to collect amounts due.” The judge said it was,
and we review that legal conclusion de novo. Metavante
Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 758–59 (7th Cir.
2010).
We’ll analyze the contractual language by breaking it
down into two relevant pieces: (1) whether this was a “cost”
4 No. 17-3629
and (2) whether this was a cost “incurred … in attempting to
collect.”
A. The fee was a “cost.”
According to Bernal, the contract authorizes only “actual
costs,” which he says include things like letterhead and
postage but not collection fees. Yet the contract never uses
the term “actual costs,” nor does anything in the text suggest
it should be read so restrictively.
To the contrary, the contract explicitly allows for “any
costs.” As the Supreme Court recently reiterated, the word
“any” signifies breadth. See Smith v. Berryhill, 139 S. Ct. 1765,
1774 (2019) (explaining that “Congress’ use of the word ‘any’
suggests an intent to use that term expansively”) (quotation
marks and alteration omitted); Home Depot U.S.A., Inc. v.
Jackson, 139 S. Ct 1743, 1750 (2019) (noting that “‘any’ ordi-
narily carries an expansive meaning,” at least as a general
rule) (quotation marks omitted).
Dictionary definitions confirm that the phrase “any
costs” is broad enough to include this fee. A “cost” is simply
an “amount paid or charged for something.” Cost, BLACK’S
LAW DICTIONARY (10th ed. 2014). More specifically, “costs of
collection” are “[e]xpenses incurred in receiving payment of
a note; esp., attorney’s fees incurred in the effort to collect a
note.” Costs of Collection, id.; see also Cost, MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) (“[T]he
amount or equivalent paid or charged for something.”); Cost,
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE (5th Ed. 2018) (“The expenditure of something,
such as time or labor, necessary for the attainment of a
goal.”). Six Flags outsourced its debt collection, which no
No. 17-3629 5
one disputes it was entitled to do. The $43.28 at issue is the
amount Six Flags will be charged for that service. Based on
standard dictionary definitions, this fee is literally the sole
“cost” of Six Flags’ “attempt[] to collect” the debt.
To be sure, Bernal is correct that the word “costs” has a
narrower meaning in at least one other context. When a
court awards costs to a winning litigant, it generally limits
the award to a small category of specific expenses. See, e.g.,
Baker Botts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158, 2163–64,
(2015) (explaining that under the “American Rule,” winning
litigants generally do not recover additional expenses like
attorney’s fees). While true, nothing in this contract suggests
that the word “costs” bears that narrow meaning here.
To start, observe that Black’s Law Dictionary includes two
different specialized definitions for the term “cost” that are
relevant here. One is tailored specifically to litigation, while
the other—quoted above—is tailored to debt collection.
Compare Cost (pl.), BLACK’S LAW DICTIONARY, supra, at 423
(“The expenses of litigation, prosecution, or other legal
transaction, esp. those allowed in favor of one party against
the other.”), with Costs of Collection, id. at 424 (“Expenses
incurred in receiving payment of a note; esp., attorney’s fees
incurred in the effort to collect a note.”). Bernal asks us to
apply the litigation-centered definition, but the word’s
meaning is so different in the debt-collection context that it
warrants a separate dictionary entry.
Also note that according to Black’s separate definition for
“costs of collection,” the term generally includes attorney’s
fees. And recall that Bernal’s contract makes that point
explicitly, authorizing the collection of “any costs including
reasonable attorney’s fees.” (Emphasis added.) That phrase has
6 No. 17-3629
a significant impact on the contract’s breadth because the
word “including” generally “introduces examples, not an
exhaustive list.” See ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 132
(2012). That the contract includes at least some fees reinforc-
es our conclusion that the word has a broader meaning here
than when used elsewhere.
There’s one more reason Bernal’s interpretation is hard to
square with the contract’s inclusion of attorney’s fees. Had
Six Flags paid its attorneys the exact same amount to send
the exact same collection letter, then that fee would unques-
tionably be a “cost” within the meaning of this contract.
Bernal says the result should be different when a nonattor-
ney sends the letter, but that distinction says almost nothing
about whether a fee falls within the definition of “cost.” If
attorney’s fees are one nonexhaustive example of what’s
included, we fail to see the basis to exclude analogous
collection fees.
We therefore conclude that a percentage-based collection
fee is a “cost” within the meaning of this language. In doing
so, we acknowledge that we depart from two of our sister
circuits. In Kojetin v. C.U. Recovery, Inc., the Eighth Circuit
held that a debt collector “violated the Act by adding the
collection fee based on a percentage fee rather than on actual
costs when [the debtor’s] agreement with the credit union
provided she was liable only for actual costs.” 212 F.3d 1318,
1318 (8th Cir. 2000) (mem.). The contract at issue provided
that the debtor would “pay reasonable attorney’s fees and
costs incident to collection.” Kojetin v. C.U. Recovery, Inc.,
No. 97-2273, 1999 WL 33916416, at *5 (D. Minn. Feb. 17,
1999). In Bradley v. Franklin Collection Service, Inc., the Elev-
No. 17-3629 7
enth Circuit said the same of a contract that allowed for
“costs of collection, including a reasonable attorney’s fee.”
739 F.3d 606, 609–11 (11th Cir. 2014).
For our purposes, the language at issue in those cases
was materially indistinguishable from the contract at issue
here. We nonetheless disagree with those holdings. First,
those decisions relied on a pair of assumptions we find
questionable: that the contracts at issue authorized only
“actual costs,” and that “actual costs” necessarily do not
include collection fees. As we’ve seen, the contractual lan-
guage never mentions “actual costs,” and even if it did, it’s
not obvious why that limitation excludes the fee at issue.
The contract allows for “any costs,” and the most reasonable
reading of that term is to include fees paid in attempting to
collect.
Second, the contract at issue in Bradley, like the one at is-
sue here, explicitly provided that the term “costs” includes
attorney’s fees. And attorney’s fees are not “actual” costs as
the Eleventh Circuit used that term. We decline to hold that
the term “costs” bears such a narrow meaning when the
contract explicitly tells us that the term is broad enough to
include more. 1
B. The fee is a cost “incurred in attempting to collect.”
Regardless of the definition of “cost,” Bernal argues that
the collection fee wasn’t authorized because it hasn’t been
1 Because this opinion creates a conflict in the circuits, we circulated it to
all judges in active service under Circuit Rule 40(e). No judge voted to
hear the case en banc.
8 No. 17-3629
“incurred” yet. As he correctly observes, Six Flags has no
obligation to pay anything until after NRA collects the debt:
If Bernal were to pay his debt immediately, Six Flags would
owe $43.28 to AR Assist. If he were to flee the country, Six
Flags would owe nothing. And if he were to wait a few years
and then pay, Six Flags would owe a fee calculated at a
different contingency rate. In other words, Six Flags has
incurred only a contingent liability—contingent both on
whether Bernal pays and when.
The problem with Bernal’s argument is its premise: he
assumes that because the contract uses the word “incurred,”
it applies only to obligations that already exist prior to
billing. But the contract never says that.
Let’s start with the sentence’s basic grammar. The word
“incurred” is a past participle, which we generally use to
form one of two things: perfect tenses or the passive voice.
See RODNEY HUDDLESTON & GEOFFREY K. PULLUM, THE
CAMBRIDGE GRAMMAR OF THE ENGLISH LANGUAGE 1429
(2002). We form the perfect tenses by pairing “have,” “has,”
or “had” with a past participle. We often do so to show the
relative timing of two events. Take, for example, “John had
thrown the ball,” which tells us that John threw the ball
before a particular point in time. See Past-Perfect Tense,
GARNER’S MODERN ENGLISH USAGE 1032 (4th Ed. 2016) (“The
tense denoting an act, state, or condition was completed
before another specified past time or past action.”); see also
id. (explaining the related present-perfect and future-perfect
tenses). Bernal thinks the word “incurred” plays a similar
role here—that it means Six Flags is authorized to collect a
cost only if it was incurred before the bill was sent. But as
mentioned, past participles have a second use. We also use
No. 17-3629 9
them to form the passive voice, where the speaker flips the
order of a sentence so that a passive noun becomes the
subject—“the ball is thrown by John” as opposed to “John
throws the ball.” Unlike the perfect tenses, the passive voice
doesn’t necessarily say anything about timing: sometimes it
does (“the ball was thrown just before sunset”) and some-
times it doesn’t (“a football is usually thrown by a quarter-
back”).
The language at issue—“incurred by us in attempting to
collect”—is used in this contract to modify the noun “costs.”
And “[p]ast-participial modifiers are bare passives.”
HUDDLESTON & PULLUM, supra, at 1265. That is, they play the
second of the two roles we described. They are “tenseless”
because “the verb itself gives no indication of” the relative
timing of events. Id. at 162. The modifier describes the noun,
but the actual timing is “determined by other elements in the
sentence or by context.” Id. To give an example, contrast two
phrases: “those arrested yesterday” and “proposals submit-
ted after today.” Id. The modifier in the first phrase (“arrest-
ed yesterday”) refers solely to events that occurred in the
past, while the modifier in the second phrase (“submitted
after today”) refers solely to events occurring in the future.
Everything depends on the context.
A quick survey of judicial opinions confirms that the past
participle is an uncommonly flexible device. Sometimes
courts have, as Bernal insists we should, found that a past
participle refers to a completed event. See Fla. Dep’t of Reve-
nue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 41 (2008) (finding
that the more natural reading of “plan confirmed under
[Chapter 11]” is that it refers to plans confirmed in the past,
albeit acknowledging that the alternative reading is “credi-
10 No. 17-3629
ble”). In other situations, courts have said that past partici-
ples “describe the present state of a thing,” just as any other
adjective “describe[s] the present state of the nouns they
modify.” Henson v. Santander Consumer USA Inc., 137 S. Ct.
1718, 1722 (2017). In still others, courts have found that past
participles can refer to future events. For example, we once
said that the past participle “begun” in the phrase “prosecu-
tion … begun under any existing act” does not “express[]
that verb in its past tense.” Lang v. United States, 133 F. 201,
204 (7th Cir. 1904). To the contrary, we said that it “per-
form[s] solely the function of a … verbal adjective, qualify-
ing any prosecutions in mind, pending or future.” Id.
(emphasis added). The adjective’s sole function was “to
show that such prosecution is one under the act.” Id.
So we have to ask: What role does the modifier play in
this language? There are two possibilities:
NRA’s Interpretation Bernal’s Interpretation
“[Y]ou will be billed for … “[Y]ou will be billed for …
any costs … incurred by us any costs … [that by that
[at any point] in attempting time have already been]
to collect.” incurred by us in attempt-
ing to collect.”
In other words, NRA is arguing that the sentence has a
broad temporal range; Bernal is arguing that it says some-
thing very specific. But nothing in the contract’s actual
language says much about timing at all. That silence strong-
ly supports NRA’s argument: absent limiting language,
“any” should mean “any.” It should include costs incurred at
No. 17-3629 11
any time, including those that will necessarily be incurred at
the time of payment.
After all, the contract doesn’t use “costs incurred” in iso-
lation. Rather, “incurred” is part of a larger adjectival
phrase: “incurred by us in attempting to collect.” Taken as a
whole, the point of that phrase is simply to explain what the
costs are for and who is paying them. In other words, it’s a
longer way of saying “Six Flags’ collection costs.” And had
Six Flags used those words, there would be no dispute here.
The district judge gave one more reason to think that the
word “incurred” lacks a specific temporal restriction. Let’s
imagine Bernal is correct. In that scenario NRA must first
send the debtor a letter demanding payment of the debt.
Then, after the debtor writes a check, Six Flags can pay NRA
the collection fee. At that point NRA can finally send the
debtor a second letter demanding collection costs. But in this
scenario, the first letter would mislead the debtor about how
much he needs to pay in total, so this could itself violate the
FDCPA. Cf. Fields v. Wilber Law Firm, P.C., 383 F.3d 562, 565
(7th Cir. 2004) (“[W]hen a debtor has contractually agreed to
pay attorneys’ fees and collection costs, a debt collector
may … state those fees and costs and include that amount in
the dunning letter. … Indeed, refusing to quantify an
amount that the debt collector is trying to collect could be
construed as falsely stating the amount of debt.”). Bernal
claims that NRA violated the statute, but his alternative
could be just as problematic.
In response to these arguments, Bernal leans heavily on
Seeger v. ANFI, Inc., 548 F.3d 1107 (7th Cir. 2008). There, we
approvingly quoted the district court’s holding that “a
collection fee which is never paid is not a cost that [the
12 No. 17-3629
original creditor] would incur.” Id. at 1113. That much is
true, but it’s not relevant here. In Seeger the debt collector
purchased the debt from the original creditor. Because the
collector owned the debt outright, it was no longer perform-
ing a service for the original creditor, nor would it ever
receive a fee. And a cost that will never be charged is not a
“cost incurred in collecting a debt.” This case is different.
The fee arrangement is still in place, and Six Flags will
unquestionably be responsible for the amount at issue if
Bernal pays.
As a final note, we express no opinion on whether the
result would be different if the bill had included purely
speculative expenses. See Veach v. Sheeks, 316 F.3d 690, 693
(7th Cir. 2003) (holding that a debt collector may not repre-
sent that treble damages are part of the “‘remaining princi-
pal balance’ of a claimed debt” until a court actually grants a
judgment and authorizes those damages); Kaymark v. Bank of
Am., N.A., 783 F.3d 168, 175 (3d Cir. 2015) (holding that a
debt collector cannot include mere estimates of future legal
fees in a bill). Whatever relevance that concern might have, it
isn’t at issue here. The contested $43.28 is not an estimate. It
is the precise amount that would have been due had Bernal
paid his debt at that time.
* * *
In sum, this standard collection fee falls within the con-
tract’s broad language authorizing “any costs” of collection.
As a result, NRA’s collection letter did not violate the
FDCPA.
AFFIRMED
|
Case: 13-40131 Document: 00512419638 Page: 1 Date Filed: 10/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2013
No. 13-40131
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARLON ALVARADO-QUINONES, also known as Armando Guiterrez-
Quinones,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-1001-1
Before JOLLY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Marlon Alvarado-
Quinones has moved for leave to withdraw and has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632
F.3d 229 (5th Cir. 2011). Alvarado-Quinones has not filed a response. We have
reviewed counsel’s brief and the relevant portions of the record reflected therein.
We concur with counsel’s assessment that the appeal presents no nonfrivolous
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 13-40131 Document: 00512419638 Page: 2 Date Filed: 10/25/2013
No. 13-40131
issue for appellate review. Accordingly, counsel’s motion for leave to withdraw
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2
|
105 Wis.2d 17 (1981)
313 N.W.2d 60
FOERSTER, INCORPORATED, a Wisconsin corporation, Plaintiff-Appellant-Petitioner,
v.
ATLAS METAL PARTS COMPANY, a Wisconsin corporation, Defendant-Respondent.
No. 80-1245.
Supreme Court of Wisconsin.
Argued November 3, 1981.
Decided December 1, 1981.
*19 For the appellant-petitioner there were briefs by Irving W. Zirbel, Craig I. Zirbel and Zirbel, Howard & Malone, S.C., of Milwaukee, and oral argument by Irving W. Zirbel.
For the defendant-respondent there was a brief by Thomas J. Regan, Thomas R. Schrimpf and Kluwin, Dunphy, Hankin & McNulty of Milwaukee, and oral argument by Mr. Schrimpf.
Affirming 102 Wis.2d 721, 308 N.W.2d 420.
COFFEY, J.
This is a review of a decision of the court of appeals affirming the judgment of the circuit court for Waukesha county, Hon. JOHN P. BUCKLEY, presiding. The judgment dismissed the amended complaint of the plaintiff-appellant-petitioner, Foerster, Incorporated, holding that it was not a "dealership" as defined in sec. 135.02(2), Stats., and, thus, not entitled to the protections of the Wisconsin Fair Dealership Law when the defendant-respondent, Atlas Metal Parts Company, terminated the existing "Sales Agreement." The appellate court affirmed holding that the conduct of Foerster, Inc., in representing Atlas as a manufacturer's representative did not come within the purview of the definition of "dealership" (sec. 135.02(2), Stats.).
Atlas Metal Parts Company is a Wisconsin corporation engaged in the business of producing metal stampings while Foerster, Inc., is a Wisconsin sales corporation known as a "manufacturer's representative." In June of 1968, Atlas and Foerster entered into a one-year *20 "sales agreement" in which Foerster agreed to "help promote the sale of contract metal stampings manufactured by Atlas" and Atlas agreed to pay Foerster a commission on all sales Atlas made originating through Foerster's efforts to solicit accounts. The agreement was renewed in writing for another year in 1969 and further extended orally on an annual basis for several years thereafter. The agreement was subject to termination by either party upon written sixty-day notice in advance of the annual termination date. Atlas terminated the agreement effective September 30, 1977, and Foerster challenges this termination as violating the Wisconsin Fair Dealership Law (ch. 135, Stats.).
Atlas supplied Foerster with Atlas advertising brochures and business calling cards, as well as models of its products. Foerster, Inc., was not required to expend any money for advertising Atlas products nor was it required to maintain a supply or inventory of Atlas products. Further, Foerster, Inc., neither paid a fee nor made any investment in Atlas in undertaking the representation agreement. Foerster, Inc., while acting as a manufacturer's representative for Atlas, represented at least four other companies as a manufacturer's representative and in the process of doing so, used a different calling card for each company, in addition to a fifth calling card which identified "FOERSTER, INC." solely as a manufacturer's representative.
Once a Foerster client demonstrated an interest in purchasing Atlas products, Atlas assumed total control of the transaction including the estimating, quoting, acceptance, rejection or approval of all orders, the negotiation of the terms of sales, credit arrangements and assumption of credit risks, along with the responsibility for all collections. Atlas also assumed the responsibility of shipping the orders having Foerster, Inc., do the follow-up work in terms of servicing the customer.
Shortly after Atlas terminated the "sales agreement," Foerster, Inc., brought an action for unpaid sales commissions *21 which he alleged were due and owing on sales he solicited prior to his termination. Atlas denied owing any commissions and in its counterclaim, alleged that Foerster had been overpaid on his commissions due to a bookkeeping error over a five year period.
On June 27, 1978, Foerster amended its complaint to seek money damages and equitable relief, alleging that Atlas violated the Wisconsin Fair Dealership Law (ch. 135, Stats.) in terminating the sales agreement. Atlas moved to dismiss the amended complaint for failure to state a claim upon which relief could be granted. The trial court granted Atlas' motion to dismiss and entered judgment dismissing the action. Foerster, Inc., appealed and the appellate court reversed and remanded.[1] On remand, the case was tried to the court and again dismissed, based upon the trial court's determination that Foerster, Inc., was not a "dealership" under the Wisconsin Fair Dealership Law and, thus, not entitled to the protections and relief provided thereby. The court of appeals affirmed the judgment dismissing the action agreeing that Foerster, Inc., was not a "dealership" under ch. 135.
Issue
Is Foerster, Incorporated, entitled to the protections of the Wisconsin Fair Dealership Law as a "dealership" as that term is defined in sec. 135.02 (2), Stats.?
The Wisconsin Fair Dealership Law (ch. 135, Stats.) was enacted by the legislature "for the protection of the interests of the dealer whose economic livelihood may be imperiled by the dealership grantor, whatever its size." Rossow Oil Co. v. Heiman, 72 Wis. 2d 696, 702, 242 N.W. *22 2d 176 (1976). (Emphasis supplied.) Sec. 135.02(5) defines a "dealer" to whom the protections of ch. 135 are available as "a person who is a grantee of a dealership in this state." A "dealership" is defined by sec. 135.02(2) in the following manner:
"Definitions. In this chapter:
". . .
"(2) `Dealership' means a contract or agreement, either expressed or implied, whether oral or written, between 2 or more persons, by which a person is granted the right to sell or distribute goods or services, or use a trade name, trademark, service mark, logotype, advertising or other commercial symbol, in which there is a community of interest in the business of offering, selling or distributing goods or services at wholesale, retail, by lease, agreement or otherwise."
It is a well-established rule of statutory construction that it is improper to resort to extrinsic aids for the purpose of statutory construction if the meaning of the statute is clear and unambiguous:
". . . If the meaning of the statute is clear and unambiguous on its face, then resort to extrinsic aids for the purpose of statutory construction is improper." State v. Derenne, 102 Wis. 2d 38, 45, 306 N.W.2d 12 (1981).
"A statute, phrase or word is ambiguous when it is capable of being interpreted by reasonably well-informed persons in either of two or more senses." Wisconsin Bankers Ass'n. v. Mut. Savings & Loan, 96 Wis. 2d 438, 450, 291 N.W.2d 869 (1980).
[1, 2]
Whether a manufacturer's representative is a "dealership" pursuant to sec. 135.02(2), Stats., is a question of first impression in this court. We note, however, that three Federal District Courts in Wisconsin have addressed this issue and, to this date, have not reached a *23 consensus of opinion.[2] The fact these courts have reached inconsistent conclusions when applying the definition of "dealership" in relatively similar factual situations involving manufacturer's representatives indicates that the statute is capable of being interpreted in two or more ways and, therefore, is ambiguous. Since the definition of "dealership" is somewhat broad and ambiguous when applied to a manufacturer's representative, we resort to legislative history to determine the legislature's intent in enacting this protective legislation.
"When a statute or part thereof is ambiguous, it is permissible to look to the legislative intent which is to be found in the language of the statute in relation to the statute's context, scope, history, subject matter, and object intended to be accomplished. . . ." Wisconsin Bankers Ass'n. v. Mut. Savings & Loan, supra at 450.
[3]
Ch. 135, Stats., was originally entitled the "Wisconsin Fair Franchising Law." 1973 Assembly Bill, 837A. The bill was subsequently amended to refer to the protected business relationships as "dealerships" rather than "franchises." Assembly Substitute Amendment 1 to 1973 Assembly Bill 837. A letter referred to as an interdepartmental correspondence found in the drafting file of the Wisconsin Legislative Reference Bureau relating to 1973 Assembly Bill 837 indicates that this amendment to the bill was made only to avoid a possible conflict between the bill and the Wisconsin Franchise Investment Law. (Ch. 553, Stats.). Although the term franchise was deleted from the bill, the similarity of the definition of franchise to the definition of dealership as enacted *24 makes it clear that the "dealership" definition was intended to define those businesses similar in nature to "franchises."
An indication of the type of business in which the problem was found which the legislature intended to remedy in using the term "dealership" or "franchise" can also be derived from the statements of the bill's sponsor. A press release which accompanied the introduction of the 1973 Assembly Bill 873, includes the following description of the type of businesses the legislation was intended to protect:
"This bill is intended to protect the thousands of small businessmen in Wisconsin who are franchisees. These businessmen operate filling stations, building materials and supply houses, lumber yards, sports equipment stores, motels, hotels and restaurant chains. They sell farm implements, clothing, furniture, and many other types of goods under a franchise system. The intent in this legislation is to protect these Wisconsin businessmen from pressure from a franchisor which is not in their best interest." Press Release, Office of Governor, April 6, 1973.
The description of the businesses which the Fair Dealership Law was intended to cover indicates that the law was meant to protect only those small businessmen who make a substantial financial investment in inventory, physical facilities or "good will" as part of their association with the grantor of the dealership and is, thus, consistent with common or accepted perceptions of the words franchise or dealership. It is these types of businesses whose economic livelihood would be imperiled by the termination of their dealership without good cause and adequate notice. None of the businesses mentioned in this description resembles the type of manufacturer's representative business involved in this case.
The interpretation of the definition of "dealership" as describing business relationships in which the "dealer" makes a substantial investment in terms of inventory *25 or physical facilities is in agreement with several of the remaining provisions of ch. 135, Stats. Sec. 135.045 provides for the repurchase of inventories from dealers and sec. 135.04 discusses termination of a dealership for nonpayment of sums due under the dealership. Each of these provisions assumes some kind of financial investment on the part of the dealer in securing the dealership, and they are clearly not applicable to the case at bar as Foerster, Inc., did not have an inventory of Atlas products nor did he pay a fee to Atlas for the right to represent them.
In light of the legislative intent underlying the Wisconsin Fair Dealership Act, we proceed to apply the facts of this case to the sec. 135.02(2), Stats., definition of "dealership."
In Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 300 N.W.2d 63 (1981), this court recognized that the definition of sec. 135.02(2), Stats., requires that a business fulfill the following elements in order to be a protected "dealership":
"1. a contract or agreement between two or more persons;
"2. by which a person is granted
"a. the right to sell goods or services;
"b. the right to distribute goods or services; or
"c. the right to use a trade name, trademark, service mark, logotype, advertising or other commercial symbol; and
"3. in which there is a community of interest in the business of
"a. offering goods or services;
"b. selling goods or services; or
"c. distributing goods or services at wholesale, retail by lease, agreement or otherwise." Id. at 763.
The parties agree to the existence of a contract, a community of interest and the fact that Foerster, Inc., was not granted the right to distribute goods and services *26 and, thus, the dispute in this case only concerns whether Foerster, Inc., fulfills two of those elements; namely, is whether Foerster, Inc., was granted the right to sell Atlas' goods and services and/or whether Foerster, Inc., was granted the right to use a trade name, trademark, service mark, logotype, advertising or other commercial symbol.
Addressing first the question of whether Foerster, Inc., was granted the right to sell Atlas' products, we note that under the express terms of the sales agreement, Foerster, Inc., was only authorized to "help promote the sale of contract metal stampings manufactured by Atlas." Foerster, Inc., did not keep any inventory of Atlas products and once a client decided to use Atlas products, it was Atlas who undertook all responsibility for quoting, estimating, accepting, denying or approving orders, in addition to negotiating the terms of sales, making credit arrangements and assuming credit risks, along with the responsibility for collecting the purchase price. Thus, Foerster, Inc., has no financial interest in Atlas beyond the promotion of the sale of its products.
This plainly differs from the right to sell found in the types of businesses referred to in the Governor's statement which accompanied the bill quoted earlier. In the case of gasoline service stations or fast food establishments, the right to sell consists of an unqualified authorization to transfer the product at the point and moment of the agreement to sell as contrasted to a more limited right to sell in farm implement dealerships where the right generally includes authority to commit the grantor to a sale and differs from the facts in this case, as here there is no authority to commit the grantor to a sale.
Foerster, Inc's association with Atlas also differs from the common conception of a "franchise" or "dealership" in that Atlas was only one of at least five separate companies which Foerster, Inc., represented. From the facts presented in this case, it is clear that Foerster, *27 Inc., was not devoting a substantial portion of his business to the promotion of Atlas products and, thus, the corporation's economic livelihood was not dependent solely on his relationship with Atlas. Atlas' termination of Foerster, Inc., as its representative will not result in the decimation of Foerster, Inc., as the corporation still represents four companies. This contrasts considerably with the type of "dealership" intended to be protected in which the entire business is built around and relies on the sale, servicing or representation of one grantor's products, such as gasoline service stations and fast food franchises and it was businesses of this type which the Wisconsin Fair Dealership Law was meant to protect. The termination of Foerster, Inc., as the manufacturer's representative for Atlas does not cause the type of "economic hardship" which arises where 50% to 60% of the business' time is dedicated to the sale of one company's line of products.
We do not agree with the plaintiff's reliance on the holdings of the two reported federal court decisions which have found manufacturer's representatives to be dealerships under sec. 135.02(2). We find them to be factually distinguishable from the case at bar.[3] In Al Bishop Agency, Inc. v. Lithonia, supra, the court expressly distinguished the facts of that case from those found in the trial court's decision granting Atlas' motion to dismiss:
"The testimony elicited in Court indicates that plaintiff performed more functions for defendant than Foerster, Inc. performed for its grantor.
"The evidence presented indicates that plaintiff performs the functions of a manufacturer's representative, i.e. by encouraging architects and engineers to specify defendant's products. However, plaintiff's responsibilities go far beyond such mere representation. Plaintiff, although it does not bill customers or sell from stock, arranges sales and solicits business from builders and contractors." Id. at 831.
*28 Likewise, the facts in Wilburn v. Jack Cartwright, Inc., supra, are distinguishable from those in this case. In Cartwright, the manufacturer's representative was authorized to adjust the price on items purchased and performed credit checks on his customers.
"The defendant's catalogs used by the plaintiff contained prices, but these were substantially inflated; the plaintiff had complete authority to apply specified discount plans according to his assessment of the situation. He usually used one discount plan or another.
". . .
"The plaintiff was generally concerned with the financial condition of his customers, not only for the defendant's benefit, but also his own, since he believed that a sale to a poor credit risk did not reflect well on him. He testified that he performed informal, but exhaustive, credit checks on his customers by asking questions of other customers, representatives and others in a position to know the financial condition of a customer. When he was dealing with a new account, he asked the customer to send the first order to him, and he prepared a memorandum for the defendant detailing the plaintiff's knowledge of the new account."
In this case, Foerster, Inc., did not conduct credit checks on potential Atlas customers nor was the corporation authorized to quote or adjust prices. The record does not demonstrate that Foerster was in any way concerned with the financial condition of a customer, he merely promoted the sale of Atlas products through contacting manufacturers.
The extent of Foerster's involvement in the sale of Atlas products more closely resembles that present in the case of E.A. Dickinson v. Simpson Electric Company, supra, in which the court found that the plaintiff was not a dealership under sec. 135.02(2), Stats., based in part upon the following findings of fact:
"Plaintiff does not take title to or possession of goods from the defendant, it does not deliver goods from itself or from the defendant to a third party, and it does not exchange goods for a price with any third party. Rather, *29 plaintiff is paid for its promotional services by the defendant, and the value of the services is measured by a percentage of the price of goods sold by the defendant itself. Nor does the plaintiff distribute goods since it has none in its possession." Id. at 1245.
[4]
As in E.A. Dickinson v. Simpson Electric Company, supra, Foerster, Inc. was merely paid for its promotional services and did not take title or possession of the products sold by Atlas nor did it distribute them. The fact that Foerster, Inc. has no involvement in the actual sale of Atlas products to manufacturers except to promote purchases by customers and service the customers after the sale, along with the clear legislative intent that the Wisconsin Fair Dealership Law apply only to franchises or dealerships which have a more direct involvement in sales compels the conclusion that under the facts of this case, Foerster was not granted the "right to sell" Atlas products.
We next address the question of whether Foerster was granted the right to use Atlas' trade name, trademark, service mark or other commercial symbol as those terms are used in sec. 135.02(2), Stats. Regarding this issue, the record demonstrates that Atlas only provided Foerster with business calling cards and Atlas advertising brochures. The record does not disclose that Atlas ever authorized any use of the Atlas trademark or logo by Foerster, Inc., and it is clear from the record that Foerster, Inc., did not expend any of their own funds advertising Atlas products.
This extremely limited use of the Atlas name and trademark differs considerably from the use made of the grantor's trademark in the typical "dealership" intended by the legislation. In the situation of the service station, fast food franchise, machinery distribution or clothing retailer, the trademark of the grantor or of the dealership is often prominently displayed for several purposes, including as an implicit guarantee of a certain *30 quality of product and service, frequently supported by the grantor's national or statewide advertising. While the product may be that of the grantor, the dealer often uses the trademark to imply that his establishment furnishes the type of quality service associated with the grantor.
In contrast, Foerster, Inc., used the Atlas logo on business cards only for the purpose of informing potential clients of his status without any notation as to the nature of the relationship. The fact that he was not allowed to adopt the trademark or symbol as his own is demonstrated by the fact that the card Atlas supplied to Foerster, Inc., identified Foerster in bold type in the center of the card with Foerster's phone number and at the bottom left-hand corner in smaller type identified Atlas with a separate phone number.
DON FOERSTER
XXX-XXX-XXXX
ATLAS METAL PARTS CO., INC.
1342 PEARL STREET
WAUKESHA, WIS. 53186 PHONE: (414) 544-0200
Foerster, Inc., protected its own interests as a separate and independent business entity through the use of this calling card and another which identified Foerster, Inc., solely as a manufacturer's representative. Additionally, Foerster, Inc., carried separate calling cards for each of the other manufacturing firms he represented.
This case differs from the facts in Wilburn v. Jack Cartwright, Inc., supra; in that case the plaintiff expended his own funds to advertise the manufacturer's *31 products in his territory, whereas, here, Foerster never advertised Atlas products. Id. at 495.
We have noted that the legislative history of the Wisconsin Fair Dealership Law indicates that it was meant primarily to protect businesses whose economic livelihood would be imperiled through the termination of the dealership without adequate notice and just cause, and not individuals, as manufacturer's representatives, who represent several businesses and whose economic livelihood is not exclusively dependent on any one of those businesses. In light of that intent, it is eminently clear that there must be more than the mere use of a calling card identifying a manufacturer's representative as an agent for a company before such representatives are "dealerships," pursuant to sec. 135.02(2), Stats. To the extent that Wilburn v. Jack Cartwright, supra, and Al Bishop v. Lithonia, supra, imply that the mere use of business cards is sufficient to satisfy the sec. 135.02(2) requirement of a right to use the grantor's trademark, we question those decisions based on the limited facts set out in the opinions.
[5]
We hold, therefore, based upon the facts of this case, that Foerster was not granted the right to use the trade-name, trademark or symbol of Atlas as provided in sec. 135.02(2), Stats., when Atlas merely provided Foerster, Inc., with calling cards bearing the Atlas logo and identifying Foerster, Inc., primarily as a manufacturer's representative and specifically as a representative of their company, among others.
Our application of the sec. 135.02(2) definition of "dealership" to the facts of this case is consistent with the "common sense approach" which we adopted for construing the definitions of ch. 135, Stats., in Kania v. Airborne Freight Corp., supra at 775. In that decision, we quoted favorably the following reasoning of the federal *32 district court in H. Phillips Co. v. Brown-Forman Distillers Corp., 483 F. Supp. 1289 (W.D. Wis. 1980):
"[the] direction by the Legislature to the courts to construe and apply the statute [Chapter 135] liberally does not mean that the boundaries of its coverage should be construed expansively. That is to say, the Legislature has acted to protect `dealers' from `grantors' rather zealously, particularly with respect to the continuation of `dealerships.' If a relationship is a dealership, the protections afforded the dealer are to be construed and applied liberally to the dealer. But the statute itself undertakes to draw a line to encompass the kinds of enterprises and relationships which are to enjoy such protection. There is no basis upon which the courts can provide that protection to enterprises and relationships which fall without the legislative line." Id. at 1291.
By the Court. The decision of the court of appeals is affirmed.
NOTES
[1] Foerster, Inc. v. Atlas Metal Parts, No. 79-054, unpublished opinion of the court of appeals, dated August 27, 1979. See: Table, 91 Wis. 2d 852, 284 N.W.2d 122 (1979). The court reversed the dismissal holding that the trial court had improperly relied on materials outside of the pleadings in granting a motion for judgment on the pleadings.
[2] Al Bishop Agency, Inc. v. Lithonia, 474 F. Supp, 828 (E.D. Wis. 1979); E.A. Dickinson & Assoc. v. Simpson Electric Co., 509 F. Supp. 1241 (E.D. Wis. 1981); Wilburn v. Jack Cartwright, Inc., 514 F. Supp. 493 (1981), and Wisconsin circuit court decisions cited therein.
[3] Al Bishop Agency, Inc. v. Lithonia, supra, and Wilburn v. Jack Cartwright, Inc., supra.
|
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 21, 2005 Session
STATE OF TENNESSEE v. RONNIE D. SIMS
Appeal from the Criminal Court for Davidson County
No. 2002-C-1454 Steve Dozier, Judge
No. M2004-02491-CCA-R3-CD - Filed November 22, 2005
The Defendant, Ronnie D. Sims, was convicted by a jury of one count of aggravated robbery, one
count of vandalism,1 and one count of possession of burglary tools. After a hearing, the trial court
sentenced the Defendant as a Range II, multiple offender, to seventeen years in the Department of
Correction for the aggravated robbery conviction. The trial court sentenced the Defendant to
concurrent sentences of six years for the vandalism conviction and eleven months, twenty-nine days
for the burglary tools offense. In this direct appeal, the Defendant contests the sufficiency of the
evidence; claims that his right to a fair trial was compromised by the State’s loss of evidence; and
complains that his seventeen year sentence for the aggravated robbery is excessive. We affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.
James Martin, Nashville, Tennessee, for the appellant, Ronnie D. Sims.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Dumaka Shabazz, Assistant District Attorney
General, for the appellee, State of Tennessee.
1
The Defendant was convicted of vandalism of $1,000 or more but less than $10,000.
OPINION
FACTS
Joseph Leach testified that, on the morning of June 5, 2002, he and the Defendant were
walking down the street in the Vanderbilt University area. The goal of their walk was “to occupy
a vehicle,” that is, “[t]o obtain one.” When they saw a woman in a minivan in a parking lot, they
“approached her -- and asked her for the keys to the van.” Mr. Leach stated that, at the time, he “had
something in [his] hand” and the woman “obliged” his request and handed over her keys. According
to Mr. Leach, the woman “looked somewhat scared.” He and the Defendant then got in the van and
drove away, with the Defendant driving. At this point in time, Mr. Leach had known the Defendant
about a year.
Mr. Leach stated that, after they left the scene, law enforcement officers followed them “in
hot pursuit,” but they did not pull over. Rather, they tried to “get away” and “evade him.” During
the chase, the van swerved in order to miss hitting someone and “[d]uring that time the vehicle came
to a stop.” The Defendant and Mr. Leach both got out of the van. Because the airbag had deployed
on the passenger side, Mr. Leach was delayed in extricating himself from the van. By the time he
was actually out of it, the police officer was “close on the scene.” As Mr. Leach took a “few steps”
away from the van, the officer told him to stop and took him into custody. The Defendant, however,
got away.
Mr. Leach testified that the next time he saw the Defendant was about thirty to forty minutes
later; at that time, the Defendant was in police custody.
Mr. Leach stated that, when he accosted the victim, he had a screwdriver. He pointed it at
her during their encounter. He did not recall if he touched her with it, but he brandished it in the
manner of a deadly weapon.
On cross-examination, Mr. Leach admitted that he was testifying pursuant to a plea bargain
offer. He also admitted that, after he was apprehended, he did not tell the police his accomplice’s
name. He admitted that, if he went to trial, he was facing the possibility of a forty-plus year
sentence. With the plea bargain, he would be receiving a sentence of about half of that. Mr. Leach
also admitted to past convictions of armed robbery and burglaries.
Bridgette Willette testified that she is employed by Vanderbilt University. She was reporting
to work early on the morning of the robbery because she had a presentation to make. She pulled into
a parking lot, parked, and began to rehearse her presentation while she sat in the driver’s seat. When
she was ready, she got out of the minivan and opened the sliding door on the driver’s side to remove
her presentation materials. As she was doing so, she noticed two men walking across the campus,
headed in her direction. She did not pay them any attention, however, thinking that they were part
of a shift change. As she was in the process of gathering her materials, she saw the two men coming
toward her. One of the men was a few steps ahead of the other one, and when he got to the van, he
immediately demanded her keys. This man had a screwdriver and grabbed her left arm. The
-2-
screwdriver was pointed at her chest. He kept saying, “Give me your keys.” She was convinced that
the man was going to stab her with the screwdriver. She testified, “I was frightened, I was in shock.”
Ms. Willette had left the driver’s door of the van open and the second man got into the
driver’s seat. When he discovered that the keys were not in the ignition, he began screaming, “Give
me your keys.” At this point, both men were screaming at her. She did not have the keys on her
person. The second man got her purse from the front seat and was going through it. Unable to find
the keys, he told Ms. Willette, “You got one minute to give me your keys or I’m getting my gun.”
She told him, “Then you need to help me find them, ‘cause I don’t have them. Check the ignition.
Check in my purse. Check the front seat, in the console, look around. I don’t have the keys.” She
was face to face with the second man during this encounter, about an arm’s length away. She
identified this man as the Defendant.
When he could not find the victim’s keys, the Defendant handed Ms. Willette her purse. She
found her keys, at which point the Defendant grabbed them and the purse and jumped back in the
driver’s seat of the van. The man with the screwdriver got into the van through the sliding door. Ms.
Willette protested that she needed her presentation materials, but the Defendant yelled, “Hell, no.
Shut the damn door.” At that, the man with the screwdriver closed the door and the Defendant drove
off. In addition to stealing her van, the two men stole the victim’s purse, cell phone, some money,
and credit cards.
Ms. Willette ran to a “Blue Phone” in the parking lot, which connected her automatically to
the Vanderbilt Police Department. She reported that her van had been stolen by two men. She
described them to the police as two black men, one wearing “blue plaid or some kinda plaid [shirt],
and the other one had on [a] blue [shirt].” She recalled the Defendant as wearing a plain blue tee
shirt.
Ms. Willette testified that the police arrived very quickly, within three to five minutes.
Vanderbilt Police Officer Dennis was the first to arrive. She repeated her report to him, telling him
that her assailants were two black men, and telling him what she could remember about what they
were wearing. She remembered that the man with the screwdriver had facial hair. After a few
minutes, Ms. Willette’s boss arrived, and she recounted the events to her. Officer Dennis then
informed the victim that her van had been located, wrecked, and the police had taken one person into
custody, whom they wanted her to view.
Officer Dennis drove to the site, where Ms. Willette viewed her van, “wrecked.” Both
airbags had deployed and the windshield was cracked. The van had also suffered other damages.
Total repairs approximated $11,000.
At the site, Ms. Willette viewed the suspect and determined that he was the man who had
accosted her with the screwdriver. This man was wearing a plaid shirt. Ms. Willette immediately
identified him to the police.
-3-
Five or ten minutes later, the police told her that they had someone else they wanted her to
view. They drove to the location and she saw a man on the sidewalk with some police officers.
When she looked at the man, she told the police, “That’s the driver.” At that time, the man was
wearing a blue tee shirt and some blue shorts. Ms. Willette testified, “I knew absolutely who it was.”
Ms. Willette reiterated at trial that the Defendant was one of her assailants and the man who had
driven away in her van.
On cross-examination, Ms. Willette acknowledged that she did not include a physical
description of the Defendant or of the Defendant’s clothing in the written statement she gave to the
police. During her initial phone call to the police and in response to their questions about what her
assailants were wearing, she recalled saying, “The main thing I can remember is blue.” She further
recalled saying that one of the men was wearing plaid, and the other one “blue.”
Ms. Willette stated that she remained in the police car at the time she viewed the Defendant.
The Defendant was on the sidewalk across the street with at least two officers. The Defendant was
the only black man in the area not wearing a uniform. Ms. Willette did not subsequently view a
photographic line-up because she was sure that the man was her assailant. Ms. Willette
acknowledged that the police did not require the Defendant to say anything in her presence. She
further admitted that, at the time she viewed the Defendant, she was still upset from the incident.
Donald D. Dennis testified that he is employed by the Vanderbilt University Police
Department and works in the patrol division. He responded to Ms. Willette’s call by driving to her
location and making sure she was okay. Officer Dennis described the victim’s condition at that time
as “very, very upset, almost to the point of being hysterical.” He spoke with her in an effort to calm
her and to determine whether she needed medical attention. After the van was wrecked and the first
suspect was apprehended, he took her to that scene. She made a positive identification of the suspect
without hesitation and with certainty.
Officer Dennis was also present when Ms. Willette initially identified the Defendant. He
stated that there was no hesitation on her part in making the identification and that she “was very
sure that was the second individual.” Upon seeing him, she “started to get upset again.”
Officer Dennis testified that Ms. Willette had given a physical description of the Defendant
when she “called it in” and that she repeated that description to him when he arrived. On cross-
examination, he recalled the initial call as describing the assailants as “two black men.” He stated
that the call contained a “more detailed description,” but he could not recall “the specifics of it.”
Defense counsel asked Officer Dennis if he knew the location of the audio recording of Ms.
Willette’s initial phone call. Officer Dennis explained that the tape had been destroyed after being
kept for ninety days. When prompted by defense counsel that, since the tape had been destroyed,
“we’ll never know what that description was,” Officer Dennis responded, “Unless it’s on CAD, the--
the typed entry.”
-4-
William L. Hood testified that, on the morning in question, he was a sergeant with Vanderbilt
University Police Department. He responded to a dispatcher’s call regarding the van robbery.
Within two minutes, he saw a van matching the description of the stolen one. He tracked it and saw
the van stopped about halfway down a street, where some individuals had walked up to it. Sgt. Hood
called for more officers through the Metro dispatcher. As Sgt. Hood continued to observe the van,
one of the individuals who had approached it looked up and stepped away from the van. At that
point, the van “just took off.” Sgt. Hood began pursuing the van but did not activate his
“equipment.” He continued to seek reinforcements.
Eventually, as he kept following the van, Sgt. Hood came upon it “crashed.” Sgt. Hood saw
two individuals get out of the van through the driver’s side. Sgt. Hood, being alone, decided not to
pursue the suspects on foot. He watched them progress in a “slow-trot run” up the street. After they
ran about fifty or sixty yards, one suspect ran across the street. The other suspect turned around and
began coming toward Sgt. Hood. At that point, Sgt. Hood got out of his car and ordered the
approaching suspect to stop. As Sgt. Hood took this suspect into custody he saw the other suspect
run through a grassy area. Sgt. Hood noticed the fleeing suspect’s size and height and that he had
a “slight balding - kinda thinning of the hair.” He testified that he had earlier seen the suspects’ faces
when they got out of the van and crossed in front of his car, looking back at him as they did so.
However, Sgt. Hood stated that he did not get a “good look” into the face of the suspect who got
away.
After Sgt. Hood took the one suspect into custody, a Metro officer arrived and Sgt. Hood
advised him about the other suspect’s flight. Sgt. Hood testified that the fleeing suspect had been
wearing jeans and a paisley shirt. After the suspect in custody was secure, Sgt. Hood began walking
the area in an attempt to find the suspect who had fled. Within ten minutes, he saw a man who
looked like the suspect because his “features just stood out.” Sgt. Hood had encountered other black
men during his search but they did not appear to him to be the suspect. With the assistance of
another officer, Sgt. Hood stopped this man and spoke with him. Sgt. Hood testified that the man
he stopped was “the same height, build” as the man he had seen get out of the van. Sgt. Hood also
testified that the man “seemed very nervous, panting.”
Sgt. Hood testified that the man he stopped was wearing jogging shorts and a blue tee shirt.
The man also had on running shoes, which were wet and bore grass seeds. The appearance of the
man’s shoes was consistent with his having run through a field. Sgt. Hood had not yet taken the man
into custody when the victim was brought over to view the man’s appearance. Sgt. Hood was
present during her observation and described her identification of the man as “adamant.”
On cross-examination, Sgt. Hood acknowledged that, at the time he stopped the second
suspect, he was not one hundred percent sure that the suspect was indeed the other man who had
gotten out of the van. He further acknowledged that, at the time he came upon the wrecked van, the
only description he had of the suspects was two black men, one wearing a plaid shirt. The man
reported wearing the plaid shirt eventually turned out to be Mr. Leach. When Sgt. Hood saw the
other suspect, he was wearing a paisley design shirt that buttoned. Sgt. Hood acknowledged that,
-5-
at the time he stopped the second suspect, he was not wearing the same clothes that he had seen on
the man who ran across the field. Sgt. Hood also acknowledged that, although the van had suffered
serious damage, the second suspect did not appear injured.
Sgt. Hood testified that, at the time Ms. Willette arrived for her viewing of the second
suspect, the man was surrounded by three officers in uniform, including Sgt. Hood. After her
identification, officers began searching the area for the clothing that Sgt. Hood had initially observed
on the second suspect. They did not find the clothing. They did not attempt to collect fingerprints
from the van.
During redirect examination, Sgt. Hood identified a pair of vice grip pliers that he had
recovered from the area where he initially saw the two suspects running from the van. Sgt. Hood
heard the tool hit the ground as the men were running.
On the basis of this proof, the jury convicted the Defendant of aggravated robbery,
vandalism, and possession of burglary tools. The Defendant now contends that the evidence is not
sufficient to support his convictions, and that his trial was fundamentally unfair because the audio
tape of the victim’s 911 call was destroyed. We will address these contentions in turn.
ANALYSIS
I. Sufficiency of the Evidence
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).
On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
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circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.
A. Aggravated Robbery
Our criminal code defines aggravated robbery as the intentional or knowing theft of property
from the person of another by violence or putting the person in fear, accomplished with a deadly
weapon or by display of any article used to lead the victim to reasonably believe it to be a deadly
weapon. See Tenn. Code Ann. § 39-13-402(a)(1). In this case, two men accosted the victim and
demanded she give them the keys to her car. One of these men brandished a screwdriver, pointing
it at the victim while he held her by the arm. The victim testified that the encounter caused her to
be fearful and that she thought she was going to be stabbed. After gaining possession of the victim’s
keys, the two men absconded with the victim’s vehicle. This evidence is sufficient to establish all
of the elements of the crime of aggravated robbery.2
B. Vandalism
A person commits vandalism when he or she “knowingly causes damage to or the destruction
of any real or personal property of another . . . knowing that the person does not have the owner’s
effective consent[.]” Tenn. Code Ann. § 39-14-408(a). Here, the proof established that the two
perpetrators deliberately took the victim’s van and drove away in it. The two men did not have the
victim’s effective consent to take the van. While driving it with a law enforcement officer in pursuit,
the perpetrators wrecked the van, causing significant damage to it. Thus, the State established all
of the elements of the crime of vandalism.
C. Possession of Burglary Tools
Our criminal code provides that “[a] person who possesses any tool, machine or implement
with intent to use the same, or allow the same to be used, to commit any burglary, commits a Class
A misdemeanor.” Id. § 39-14-701. A person commits a burglary when he or she, “without the
effective consent of the property owner . . . [e]nters any freight or passenger car, automobile, truck,
trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or
commits or attempts to commit a felony, theft or assault.” Id. § 39-14-402(a)(4). In this case, the
proof at trial established that the perpetrators used a screwdriver with which to accost the victim,
thereby accomplishing the entry and theft of her minivan. Thus, the State established all of the
elements of the crime of possession of burglary tools.
The Defendant does not contest the State’s proof that Ms. Willette was the victim of an
aggravated robbery and vandalism. Nor does he argue that the State failed to prove that the
perpetrators were in possession of a burglary tool. Rather, he argues that the proof of his identity
as one of the perpetrators is not sufficient. The Defendant contends that Mr. Leach’s testimony was
motivated by his self-interest in obtaining a favorable plea bargain and is therefore not trustworthy.
2
Although the Defendant did not himself brandish the screwdriver, his participation in the aggravated robbery
rendered him subject to conviction of the offense under the theory of criminal responsibility for the conduct of another.
See Tenn. Code Ann. § 39-11-402.
-7-
The Defendant also contends that the victim’s testimony is not sufficiently reliable to support his
convictions. The Defendant points to the brief period of time in which the Defendant was face to
face with Ms. Willette; her fear during the encounter and focus on the weapon being pointed at her
chest; her vague description of her assailants during her initial call to the police; and the suggestive
circumstances of her subsequent observation of the Defendant after his apprehension by the police.
Finally, the Defendant argues that Sgt. Hood’s apprehension of the Defendant was tinged with doubt
about the Defendant being the “right” man until the victim’s (suspect) identification of him.
Accordingly, the Defendant suggests that Sgt. Hood’s testimony in support of the Defendant’s
identification as the second perpetrator should be viewed with a skeptical eye.
While we agree with the Defendant that these three witnesses’ testimony is subject to the
questions he raises, we are constrained to point out that all of these objections go to the weight and
credibility of the proof elicited through these persons. Moreover, all of these concerns were raised
through cross-examination at trial and were therefore presented to the jury. It is the jury’s function
to analyze testimony and determine the facts therefrom. This Court will not second-guess a jury’s
determinations about the weight and credibility of evidence. Moreover, “[t]his Court has repeatedly
held that the question of identification of the defendant as the person who committed the crime for
which he is on trial is a question of fact for the determination of the jury, upon consideration of all
the competent proof.” State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981).
Viewing the evidence in the light most favorable to the State, this case includes the testimony
of two eyewitnesses identifying the Defendant as one of the two perpetrators. A conviction may be
based solely on the testimony of a single eyewitness. See State v. Strickland, 885 S.W.2d 85, 87
(Tenn. Crim. App. 1993) (holding that the testimony of a victim may, by itself, be sufficient to
support a conviction). The proof in this case of the Defendant’s identity is more than sufficient to
support his convictions. Accordingly, this issue is without merit.
II. Loss of 911 Tape
The proof at trial established that the recording of the victim’s initial call to the Vanderbilt
police was destroyed pursuant to that organization’s policy. Relying on our supreme court’s opinion
in State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), the Defendant argues that the loss of this recording
deprived him of a fair trial. The State disagrees.
In Ferguson, our supreme court held that, “[g]enerally speaking, the State has a duty to
preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or other
applicable law.” Id. at 917 (footnote omitted). However, due to the difficulty of defining the
boundaries of this duty, our supreme court appeared to adopt in Ferguson the boundaries determined
in a decision of the United States Supreme Court:
Whatever duty the [federal] Constitution imposes on the States to preserve evidence,
that duty must be limited to evidence that might be expected to play a significant role
in the suspect’s defense. To meet this standard of constitutional materiality, evidence
must both possess an exculpatory value that was apparent before the evidence was
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destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.
Ferguson, 2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528,
2533-34, 81 L.Ed.2d 413 (1984)).
Thus, before reaching the issue of whether the State failed in its duty to preserve evidence,3
we must first make a threshold determination about the exculpatory value of the missing proof. The
Defendant argues that the exculpatory value of the missing audio recording of the victim’s 911 call
is in her initial description of the man who drove her van away. Based on the testimony elicited at
trial, the Defendant contends that that initial description was either so vague as to make clear the
victim’s inability to accurately identify the man; or that it differed in some critical manner from the
Defendant’s appearance so as to make it clear that he was not the man who attacked her. However,
defense counsel was able to establish at trial through his cross-examination of the State’s witnesses
that, indeed, Ms. Willette’s initial description of the two men who robbed her was vague, consisting
basically of nothing more than a report of their skin color and, possibly, a nebulous description of
what they were wearing. Defense counsel was also able to establish that, when he was apprehended,
the Defendant was not wearing the same clothing that the driver was observed to have been wearing
at the time Officer Hood saw him get out of the van. That is, defense counsel thoroughly established
at trial that there were conflicts in the reports of the driver’s appearance as of the time the Defendant
was apprehended and identified as the driver.
We fail to see how an audio recording of the 911 call would have been of material assistance
to the Defendant unless the victim had described her assailants as being of some complexion other
than black. However, there is no suggestion that the initial report contained any information that was
contrary to the Defendant’s appearance other than, possibly, the clothes he was wearing at the time
he was apprehended. Indeed, even the Defendant is forced to wonder how the recording might have
been helpful to his cause, asking rhetorically in his brief, “if there was a more specific description
as alluded to by officer Dennis, was there anything exculpatory to the defendant?” The mere
possibility of exculpatory content does not trigger a finding that the State failed in its general duty
to preserve evidence under Ferguson. See State v. Coulter, 67 S.W.3d 3, 54-5 (Tenn. Crim. App.
2001).
Furthermore, we are constrained to point out that, during his testimony, Officer Dennis
suggested that there may be a typed entry “on CAD” reciting the content of the 911 call. There is
no indication in the record that this potential proof is missing or has been destroyed. Accordingly,
the record indicates the possibility that the Defendant could have obtained comparable evidence by
reasonably available means.
3
In its appellate brief, the State argues that “the Vanderbilt University Police Department is not an arm of the
State for purposes of the analysis in State v. Ferguson.” The State refers to no authority for this proposition. W e are
not persuaded that the State’s argument has merit.
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We conclude that the Defendant has failed to satisfy Ferguson’s threshold requirement that
the lost audio tape possessed constitutional materiality. Accordingly, the Defendant’s argument that
the State failed in its duty to preserve the evidence is without merit, as is his claim that the loss of
the 911 tape rendered his trial fundamentally unfair.
Because we find that the 911 tape does not meet the standard of constitutional materiality,
we also reject the Defendant’s argument that his lawyer was not able to effectively cross-examine
the State’s witnesses without the tape.
III. Sentencing
In addition to challenging his convictions, the Defendant contends that his seventeen year
sentence for his aggravated robbery conviction is excessive. The only additional proof adduced at
the Defendant’s sentencing hearing was his presentence report, which sets forth the Defendant’s
criminal history. The Defendant does not contest his classification as a Range II, multiple offender.
As such, he was subject to a sentencing range of twelve to twenty years for the aggravated robbery
conviction, a Class B felony, and a range of four to eight years for the vandalism conviction, a Class
D felony. See Tenn. Code Ann. § 40-35-112(b)(2), (b)(4) (Repl. 2003). The presumptive sentences
for these felonies is the minimum in the range. See id. § 40-35-210(c) (Repl. 2003).4
The trial court increased the Defendant’s sentence for the aggravated robbery conviction to
seventeen years based on three enhancement factors: the Defendant’s criminal history; his previous
history of unwillingness to comply with the conditions of a sentence involving release in the
community; and his commission of the instant offenses while on parole from a prior felony
conviction. See id. § 40-35-114(2), (9), (14)(B) (Repl. 2003). The trial court increased the
Defendant’s sentence for the vandalism conviction to six years based on the same factors. The trial
court found no mitigating factors.
The Defendant now complains that the trial court improperly enhanced his aggravated
robbery sentence in light of the United States Supreme Court decision, Blakely v. Washington, 124
S.Ct. 2531 (2004). The Blakely decision holds that the Sixth Amendment to the federal Constitution
permits a defendant’s sentence to be increased only if the enhancement factors relied upon by the
judge are based on facts reflected in the jury verdict or admitted by the defendant. See id. at 2537.
The only basis upon which enhancement is otherwise permitted is the defendant’s previous criminal
history: where the defendant has prior convictions, the trial court may enhance the defendant’s
sentence without an admission or jury finding. See Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); Blakely at 2536. However, the Tennessee Supreme Court has considered the impact of
Blakely on Tennessee’s sentencing scheme and concluded that the Criminal Sentencing Reform Act
of 1989, pursuant to which the Defendant was sentenced, does not violate a defendant’s Sixth
4
W e note that our legislature has recently amended several provisions of the Criminal Sentencing Reform Act
of 1989, said charges becoming effective June 7, 2005. However, the Defendant’s crimes in this case, as well as his
sentencing, predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendment,
and the statutes cited in this opinion are those that were in effect at the time the instant crimes were committed.
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Amendment rights. See State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005). Accordingly, the
Defendant’s argument on this basis has no merit.
CONCLUSION
We affirm the judgments of the trial court.
___________________________________
DAVID H. WELLES, JUDGE
-11-
|
[Cite as State v. Hallam, 2012-Ohio-5793.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 19
v. : T.C. NO. 11CR333
BRYAN HALLAM : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 7th day of December , 2012.
..........
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
RICHARD E. MAYHALL, Atty. Reg. No. 0030017, 20 S. Limestone Street, Suite 120,
Springfield, Ohio 45502
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Bryan Hallam,
filed
[Cite as State v. Hallam, 2012-Ohio-5793.]
March 26, 2012. Hallam appeals from his conviction and sentence, on one count of illegal
cultivation of marijuana, in violation of R.C. 2925.04, a felony of the fifth degree, following
a no contest plea, which Hallam entered after the trial court overruled his motion to
suppress. Hallam was sentenced to one year of community control sanctions. We hereby
affirm the judgment of the trial court.
{¶ 2} At the suppression hearing, Deputy Dustin Hensely, of the Clark County
Sheriff’s Office, testified that on November 28, 2010, he responded to 3787 Miller Road
“to conduct a welfare check at the request of Deputy Ronny Lemen” regarding “some small
juveniles supposedly staying at the residence.” According to Hensley, Lemen advised him
“that the gentleman he was talking to, I believe it was the ex-husband of Miss Bolin and the
father of the children that I was being sent to check the location for, wanted us to conduct a
welfare check just because to make sure that the children were okay. And Miss Bolin was
okay. For whatever reason, he hadn’t heard from them.” Hensely stated that the residence
“was quite a distance from the road.”
{¶ 3} Hensley testified as follows:
* * * when I pulled up to the residence, there were several vehicles in
the driveway. The house was dark. I couldn’t tell for sure whether anybody
was home. The garage doors were up though, so I went inside the garage is
my first area that I noticed when I pulled into the driveway (sic). Went
inside the garage and then attempted to knock on the interior garage door to
try and raise somebody inside the house. Wasn’t able to get any answer
there.
So I proceeded to walk around the house to the front of the house, and
3
that’s when I noticed the front door. So I went to approach the front door,
and I noticed that the front door appeared to have been left open or was
slightly ajar. I knocked on the door again and announced myself inside the
residence, “Sheriff’s department, anybody home? Sheriff’s department.”
And yet again, I didn’t get any response.
While I was checking the outside front of the residence, I noticed a
broken glass pane window. I also looked inside the windows and stuff like
that into the interior of the residence. I noticed that the house inside
appeared to be in total disarray. There were clothes, furniture, other kind of
furniture, blankets, and whatnot just scattered all around the front living room
area of the house; and the house appeared to me to be ransacked.
He stated that the broken window he observed was “on the side of the garage,” and that the
condition of the window indicated to him “somebody could have forced entry * * * into the
garage. I couldn’t tell at that time. It was dark and whatnot, but I couldn’t tell whether it
was old or new damage. * * * .” Hensley stated that he did not further inspect the window.
{¶ 4} Regarding the front door, Hensley testified as follows:
Appeared like it had been closed, but it wasn’t closed all the way.
Like when I went to knock, it had opened up even further; and so then I
checked the door handle to see if the door was even locked at any point in
time. The door was unlocked itself because when I was jiggling the outside
of the handle, the latch would move in and out, indicating that it had not even
been locked.
[Cite as State v. Hallam, 2012-Ohio-5793.]
{¶ 5} Hensley further testified, based upon the requested welfare check, the
condition of the home’s interior, and the unlocked and ajar front door, “At that point in
time I wasn’t sure what exactly was going on here. I knew that, you know, I needed to find
out whether or not there was anybody that required any kind of emergency attention inside
the residence.” Hensley stated that he entered the front door, and noticed that there “was a
high level, kind of like an overlook balcony overlooking my current position,” as well as a
hallway leading to the rest of the home. Out of concern for his safety, Hensley stated that
he decided to check the upstairs area first. Hensley stated that he proceeded upstairs, where
he observed a small office, a bedroom and a bathroom.
{¶ 6} After determining that no one was upstairs, Hensley returned to the first
floor and proceeded down the hallway while announcing his presence. Hensley stated that
he opened the first door he reached in the hallway, which “led downstairs to a basement.”
As he began to descend the stairs, Hensley sensed “like really moisture-filled air and also I
smelled the odor of marijuana.” Once downstairs, Hensley observed sliding doors that were
covered with a blanket “so nobody could see inside from outside the residence.” Hensley
stated that there were “items all over the area, including some furniture and whatnot.”
Hensley testified that he also observed “construction grade plastic” that was “draped from
the ceiling of the basement all the way down [to] the floor and it was like boxing in a certain
corner of the room.” Hensley stated that he believed the area was a “makeshift bedroom,”
and he heard a fan and observed that the area was lit. While announcing his presence
without response, Hensley stated that he approached the area, where he located several
plants that appeared to be marijuana, along with heat lamps and fan blowing on the plants.
Hensely stated that, upon this discovery, he “backed out of the residence and called for
5
backup,” due to “the seriousness of the situation that I was in and, not knowing whether or
not for sure anybody was waiting in ambush for me in the house.”
{¶ 7} On cross-examination, Hensley stated that he approached the house at 7:40
p.m. Hensley stated that he did not attempt to open the interior garage door but rather
proceeded to the front of the house, where he observed the broken window on his way to the
front door. He remembered “walking around the back of the house and also walking around
the bottom side where I saw the sliding doors; and I tried to shine my flashlight inside and,
obviously, I couldn’t because” of the blanket. Hensely stated that he did not approach the
back of the house from the outside until additional units responded to the scene. When
asked through which window he initially viewed the disarray inside the home, he responded,
“It was one of the front house windows.” When defense counsel advised Hensley that all of
the windows on the front of the home are garage windows, Hensley stated, “It might have
been even through the - - through the front door. I can’t remember exactly.”
{¶ 8} Hensley identified a photograph of the front door of the home and
acknowledged that the narrow windows on either side of the door do not contain “clear
glass.” While he was unable to “distinctly” see through these windows, Hensley stated that
he was “pretty sure I was able to shine my flashlight through the window there as well as the
cracked door; and it was ajar. As I knocked on it, I could open it up even more. So I was
able to see inside the residence at that point.” Hensley acknowledged that in his written
report, he did not indicate that the residence was in disarray prior to his entry therein. In
response to a question from defense counsel, Hensley acknowledged that his report provides
that he smelled marijuana as soon as he entered the house but could not determine where the
6
odor originated.
{¶ 9} Hensley stated that he passed through large iron gates at the base of the
driveway, which were open, as he approached the residence. He stated that he did not
observe “lights being turned on or off” in the residence as he approached. Except for the
fan, Hensley stated that he did not hear any sounds within the residence. Hensley
acknowledged that his written report indicates that “Deputy Lemen contacted you and asked
if you could go to this residence and have Miss Bolin contact him in regards to the civil
custody dispute.” The following exchange occurred:
Q. * * * Now, you received no information the children involved in
this civil dispute, or anybody else for that matter at that residence, was in any
kind of distress or any kind of danger.
A. At that point in time I had not received any information, but I at
the same time knew that nobody had been able to contact them.
Q. For what period of time?
A. I don’t know.
Q. Again, no indication, no information that anybody was in trouble.
A. Correct.
Q. Was there any other reason for you to be dispatched to 3787
Miller Road that evening?
A. No sir, not that I can recall.
Q. There were no reports of burglar alarms having gone off?
A. Alarms? No sir.
7
Q. No reports from neighbors or from anyone else that there were
intruders in the premises?
A. No sir, the house was pretty secluded. It * * * sat quite a ways
off the roadway. So at that point I had no idea what was going on in the
residence once I found the initial items that were out of order.
Q. * * * So you had received no reports from anybody that there was a
problem at this residence.
A. Correct, other than the welfare check.
{¶ 10} Hensley identified a photograph of the broken window he observed at the
residence. When asked if there was another pane of unbroken glass behind the broken pane,
Hensley stated that he did not know. Hensley stated that he “didn’t know if it would have
been something where somebody could have reached in and unlocked any additional
windows or anything like that. I just initially saw the window was broken, looked out of
order, and that’s when, you know, it concerned me.” Hensley stated that he did not see any
broken glass inside the garage. When asked why he did not further investigate the condition
of the window, he stated, “ * * * my initial, you know, thinking pattern when I was at this
location was I need to try to make contact with somebody at this residence. That’s why I
approached the front door. Like I said, I didn’t know if it was old or new. I didn’t know if
there was still somebody inside the residence or what kind of situation I was in, especially
being there by myself.” Hensely stated he “wasn’t concerned at the time because [the
window] was leading into the garage. There didn’t appear to be anything missing or out of
order that I could tell in the garage. So initially my first step was to try to make contact
8
with somebody.” Hensley stated that he did not know if the garage doors had been opened
from the inside.
{¶ 11} Regarding the front door, Hensley stated that it was a quarter inch ajar, “like
it hadn’t been pulled closed all the way.” Hensely stated that he looked for signs of forced
entry but observed none. The following exchange occurred:
Q. Now, the search warrant said that you entered the residence - -
and I understand that you didn’t make this search warrant affidavit; but it said
that you entered the residence in an attempt to sweep for possible victims for
intruders (sic).
A. Yes, sir.
Q. * * * That’s a true statement?
A. Yes, sir.
Q. Would you tell me every fact, every circumstance that you
observed out there that led you to conclude that there was a fair probability
that there was an intruder or possible victim in that residence?
A. The fact that the door was ajar, the front door was ajar, the garage
doors were opened. There was no answer when I called inside the
residence. It was a very large residence, as well as the broken glass that I
observed at that point in time, which later I noticed that it appeared that it had
been like that; but, you know while I was there, as well as when I saw the
door open and looked inside the house, the house was in disarray. It didn’t
appear that, you know, to me it was pretty unkempt. So I wasn’t sure
9
whether or not anybody had been inside the house, ransacked it, or looking
for something or if somebody - - or if there was a struggle at that point in
time.
Hensley acknowledged that in his written report, he “indicated that the house appeared to be
a renovation or construction site,” and that he later learned that was in fact true.
{¶ 12} Hallam testified that he owns the residence at issue. He denied that his
front door could remain ajar, as Hensly testified, “[b]ecause we have heat inside the house,
and when that door opens automatically, you cannot hold the door at a crack. You can’t try
to hold it shut. If the door handle is open at all, the door swings all the way open and faces
the fireplace because the heat in the house sucks the door open and the cool air in.” Hallam
stated that he attempted to recreate the scenario Hensley described with his door, and
“there’s no way to hold the door in that position.” He also stated that he owns “five puppy
dogs” who “would have been inside that house if the door was open.” Hallam testified that
his dogs were outside when he returned home on the evening in question.
{¶ 13} Hallam identified a photograph of his garage window. He testified that it is
a triple pane window, and that “a brick had been tossed into it about six years ago from the
lawn mower.” He stated that he had not replaced the window because “the back panes are
not broke so it still keeps the cold air out of the garage.” Hallam stated that the hole in the
glass at its widest part is eight inches. When asked if the hole was large enough for
someone to gain entry to the garage thereby, Hallam replied, “No, not at that elevation that
the hole is.”
{¶ 14} At the conclusion of closing arguments by counsel, the following exchange
10
occurred:
THE COURT: What he had when he went out there, as I understand
it, was another deputy telling him that he had gotten a call from a custodial
parent saying that they had not returned * * * the children in time and he
can’t reach them on the phone. Is that correct?
MR. DRISCOLL: That’s my understanding, yes.
THE COURT: But there was no, nothing saying that the person - - the
custodial parent knew that they were at that house, was there?
MR. DRISCOLL: Well, that I believe that’s where they were
supposed to be.
THE COURT: No, they were supposed to be returned to the custodial
parent. Did he have any way of knowing or any information that they were
at that house that day?
MR. DRISCOLLL: I believe that’s why they were sent to the house
because - -
THE COURT: Because someone made the assumption that they
would be at home.
***
THE COURT: * * * But it still would have been dark or fairly dark at
7:30, a broken window, not all three panes broken; and I know we’ve got
testimony that the door will not stay closed with only a quarter-inch crack
between the door and the frame. That would assume all of the barometric
11
pressures and all other pressures at the time were the same as the time of the
test; but if it was slightly ajar and upon knocking, it opened a little bit further
allowing to see disarray in the house and the garage door open, and
considering the location of the house, the options the deputy had was to check
closer to see if there was a problem or to walk away, he walks away and
somebody’s inside injured, then the argument would be that he didn’t follow
the obvious clues.
Having followed clues which, in retrospect, do not seem all that great;
but at the same time when it became possibility (sic) of a problem, the Court
finds no fault with what the deputy did.
{¶ 15} In its Decision overruling Hallam’s motion, the court, in “considering the
totality of the circumstances,” found that “exigent circumstances existed justifying the
warrantless entry into defendant’s home. Once in the home and during a walk through in
an attempt to determine if there was someone in need of emergency assistance, the evidence
regarding the cultivation of marijuana came into plain sight.”
{¶ 16} Hallam asserts one assignment of error as follows:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
OVERRULING HALLAM’S MOTION TO SUPPRESS.”
{¶ 17} Hallam directs our attention to several facts adduced in Hensley’s testimony,
namely that Hensley observed no signs of forced entry at the residence, he had received no
information that anyone in the the house was in distress or trouble, or even inside the home,
and there were no reports of an activated burglar alarm. Hallam asserts that one broken
12
pane of glass in a triple pane window does not support an inference of forced entry, and he
argues that Hensely “testified, essentially, that he did not think the broken pane was any
indication that an exigent circumstance or emergency existed.” Hallam also asserts that
Hensley “conceded that, in his written report, he never mentioned seeing disarray in the
house until he had made his entry.” Finally, Hallam directs our attention to his testimony
that his front door, if ajar as Hensely testified, “would have blown wide open.”
{¶ 18} As this Court has previously noted:
“Appellate courts give great deference to the factual findings of the
trier of facts. (Internal citations omitted) . At a suppression hearing, the trial
court serves as the trier of fact, and must judge the credibility of witnesses
and the weight of the evidence. (Internal citations omitted). The trial court is
in the best position to resolve questions of fact and evaluate witness
credibility. (Internal citations omitted). In reviewing a trial court’s decision
on a motion to suppress, an appellate court accepts the trial court’s factual
findings, relies on the trial court’s ability to assess the credibility of
witnesses, and independently determines whether the trial court applied the
proper legal standard to the facts as found. (Internal citations omitted). An
appellate court is bound to accept the trial court’s factual findings as long as
they are supported by competent, credible evidence.” State v. Hurt,
Montgomery App. No. 21009, 2006-Ohio-990.
State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.
{¶ 19} The Fourth Amendment to the Untied States Constitution, which is
13
applicable to the states through the Fourteenth Amendment, provides: “The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons and things to be seized.” Violations of the Fourth Amendment
require courts to apply the exclusionary rule, suppressing use of any evidence that was
illegally obtained. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
{¶ 20} As this court has further previously indicated:
The Fourth Amendment to the United States Constitution protects
people from “unreasonable” searches and seizures. Warrantless searches and
seizures are per se unreasonable under the Fourth Amendment, subject to
only a few well recognized exceptions. Katz v. United States (1967), 389
U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. One such recognized exception is
the exigent circumstances or “emergency” exception. Pursuant to that rule, a
police officer, even absent a warrant or probable cause, may lawfully enter a
structure, including a private home, when the totality of the facts and
circumstances known to the officer gives rise to a reasonable belief that
immediate entry is necessary to either protect that property or assist people
inside who may be in danger or in need of immediate aid. Ringel, Searches,
Seizures, Arrests and Confessions, Section 10.5(a); Katz, Ohio Arrest, Search
and Seizure, Section 10.01-10.03.
A myriad of factual circumstances may give rise to an emergency
14
situation and the corresponding need for an immediate warrantless entry. * *
* When police reasonably believe that a burglary is in progress or has
occurred at a particular structure, an immediate warrantless entry undertaken
to investigate and protect that property and assist any victims inside who may
be in danger or in need of immediate aid has been upheld by the courts as a
reasonable search. See Lafave, Search and Seizure, Section 6.6(a) and (b).
The concept of emergency circumstances justifying an immediate
warrantless entry by police has long been recognized in Ohio. State v. Hyde
(1971), 26 Ohio App.2d 32, 268 N.E.2d 820; State v. Roach (1982), 8 Ohio
App.3d 42, 455 N.E.2d 1328; State v. Morris (November 29, 1989),
Montgomery App. No. 10992, unreported. However, the warrantless entry
and search must be limited in duration and scope to the purpose justifying
that intrusion, including only that which is necessary to alleviate the
emergency and the dangers associated therewith. Mincey v. Arizona
(1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290. During a warrantless
emergency entry police may seize contraband which is in plain view. * * *.
State v. Overholser, 2d Dist. Clark No. 96-CA-0073, 1997 WL 451473 (July 25, 1997).
{¶ 21} As this Court noted in Overholser, quoting Morris:
Every Fourth Amendment question turns on the issue of
reasonableness, and every determination of reasonableness is sui generis.
When in an investigation of crime a search and seizure is impelled by reasons
of genuine physical danger to any person, it presents concerns and needs that
15
are not easily served by a slow, deliberative process. Actions are to be
judged on a common sense standard[.]
{¶ 22} At issue herein is whether Hensley, at the time he entered Hallam’s home,
based upon the totality of the circumstances, had a reasonable belief that a burglary was in
progress or had just occurred, or that there might be someone inside the home who was in
danger or in need of prompt aid. We agree with the trial court that exigent circumstances
existed justifying Hensley’s warrantless entry into the residence, based upon the sequential
events leading up to the entry. We first note that Hensley was dispatched to the residence
based upon an express concern for the welfare of small children and their mother. Upon
arrival at the dark and remote location, Hensley, who was alone, discovered “several
vehicles,” the presence of which would suggest that people might be present at the premises.
At 7:40 p.m. it is reasonable to expect any occupants of the home to be up and about,
although no lights were visible inside the residence. The garage door stood open, and when
Hensley went inside the garage and knocked on the door to the home and announced his
presence, there was no response. The fact that he got no response after having been
dispatched on a welfare check was legitimate cause for concern. As Hensley approached
the front of the house, he noticed a broken garage window, which initially indicated to him
that “somebody could have forced entry * * * into the garage,” and he did not know if the
garage had been opened from within. We note that to the extent Hallam asserts that Hensley
testified that the broken pane did not indicate to him the existence of any exigency, Hallam
mischaracterizes Hensley’s testimony. In the darkness Hensely was unable to discern
whether the broken window “was old or new damage,” and since nothing seemed out of
16
order in the garage, he continued directly to the front door with elevated concern to locate
any occupants. Hensley noted that the front door was ajar and the home was accordingly
not secure. When Hensley knocked and announced his presence, again without response,
the door opened further and Hensley observed that the home was in disarray. The interior
condition of the residence suggested to Hensley the possibility that someone had ransacked
the home in search of something, or engaged in a struggle therein, consistent with a crime
scene, and Hensley entered the residence. Applying common sense to the facts herein,
although a close call, we conclude that Hensley’s entry into Hallam’s residence was
reasonable and lawful, and the contraband he located was in plain view and subject to
seizure.
{¶ 23} There being no merit to Hallam’s assigned error, it is overruled. The
judgment of the trial court is affirmed.
..........
FAIN, J. and FROELICH, J., concur.
Copies mailed to:
Lisa M. Fannin
Richard E. Mayhall
Hon. Richard J. O’Neill
|
423 S.E.2d 214 (1992)
Andrea Mary ROSSELLO
v.
K-MART CORPORATION, et al.
Record No. 0306-92-4.
Court of Appeals of Virginia.
November 10, 1992.
*215 Craig A. Brown, Alexandria (Ashcraft & Gerel, on brief), for appellant.
Susan A. Evans, Fairfax (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellees.
Present: KOONTZ, C.J., and BARROW and WILLIS, JJ.
WILLIS, Judge.
On January 15, 1992, the Virginia Workers' Compensation Commission reversed the deputy commissioner's decision to continue benefits to the claimant, Andrea Rossello, finding the evidence insufficient to carry the claimant's burden of proof as to causation. On appeal, Ms. Rossello contends (1) that the commission erred in holding that the burden of proof rested with her to show that her dizziness was causally related to her industrial accident, and (2) that the evidence was insufficient to support the commission's finding that her disability is unrelated to the accident. Because the commission erred in assigning the burden of proof, we reverse and remand.
On June 13, 1990, while working for K-Mart, Ms. Rossello was involved in an automobile accident. On August 30, 1990, pursuant to a memorandum of agreement, the commission issued an award of benefits. The memorandum of agreement described the nature of injury as "back and neck strain." The award order did not describe the nature of disability, but merely approved the memorandum of agreement and ordered benefits "during incapacity."
Ms. Rossello was treated for her injuries by Dr. George White, Jr., an orthopedist. On October 19, 1990, though aware that Ms. Rossello had continuing complaints of dizziness, Dr. White reported that she was ready to return to normal work activity. He referred her to Dr. Crowe for the dizziness. Ms. Rossello had acknowledged pre-accident episodes of dizziness.
On December 13, 1990, K-Mart sought to terminate benefits "on the basis that the claimant no longer suffers disability related to her June 14, 1990 industrial accident."
When Dr. Crowe was deposed on January 30, 1991, he could not attribute Ms. Rossello's dizziness to the accident. However, at the hearing on the employer's application, Dr. Crowe testified that, to a reasonable degree of medical certainty, he believed that Ms. Rossello's dizziness was caused by the accident. He stated that his testimony differed from his deposition, because after the deposition he had discussed Ms. Rossello's previous dizziness with her and had concluded that her pre-accident episodes of dizziness were different from those after the accident. However, he also said, "I can't say that they are definitely related to the accident." At the time of the hearing, he still had not diagnosed the cause of Ms. Rossello's dizziness precisely, but had narrowed it down to three possibilities.
The deputy commissioner found that "her need to continue follow-up with Dr. Crowe for her dizziness leads us to find that Rossello was not completely recovered." Holding that Ms. Rossello's total disability continued after December 14, 1990, the deputy commissioner denied the application for termination of benefits. The full commission reversed. Noting that Ms. Rossello contended that her continuing disability because of dizziness resulted *216 from the accident, it held that she bore the burden of proving by a preponderance of the evidence the causal connection between those symptoms and the industrial accident. It found her proof insufficient to carry that burden.
Ms. Rossello contends that the commission erred in requiring her to prove a causal connection between her dizziness and the accident. She argues that because the employer initiated this proceeding claiming a change of condition, the burden of proof should have rested on it. We agree.
Where ... causal connection between an industrial accident and disability has been established by the entry of an award, an employer has a right to apply for termination of benefits upon an allegation that the effects of the injury have fully dissipated and the disability is the result of another cause.
Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985). See also Suite v. Clinchfield Coal Co., 8 Va. App. 554, 383 S.E.2d 21 (1989); Stump Trucking v. Stump, 12 Va.App. 555, 404 S.E.2d 747 (1991).
In an application for review of an award on the ground of a change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.
Pilot Freight Carriers, Inc. v. Reeves, 1 Va.App. 435, 438, 339 S.E.2d 570, 572 (1986).
A compensation award is an adjudication of the entitlements and obligations of the parties. Such an award continues according to its terms until it is modified or vacated. One who seeks the benefit of modification upon an allegation of change must prove his or her allegation.
The award in this case did not specify a precise disability. It simply recited an industrial accident, a general injury, and consequent disability. In seeking relief from that award, K-Mart bore the burden of proving its claim either that Ms. Rossello was no longer disabled or that such disability did not result from the accident. The commission erred in assigning the burden of proof to Ms. Rossello. This case is reversed and remanded to the commission for re-determination according to the correct burden of proof. We need not address the sufficiency of the evidence.
Reversed and remanded.
|
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2410
___________
Kathleen A. Cochrane, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
National Association of Letter *
Carriers, AFL-CIO, Local Division, * [UNPUBLISHED]
Branch 352; United States Postal *
Service, *
*
Appellee. *
___________
Submitted: November 29, 2002
Filed: December 3, 2002
___________
Before LOKEN, BYE, and RILEY, Circuit Judges.
___________
PER CURIAM.
Kathleen Cochrane brought this action against her former employer, the United
States Postal Service (USPS), and her former union, the National Association of
Letter Carriers, and its Local Division, Branch 352 (collectively NALC), alleging that
USPS had violated its collective bargaining agreement with NALC, and that NALC
had breached its duty to fairly represent her. The district court1 granted summary
judgment to USPS and NALC, and Cochrane appeals. After careful review of the
record, we affirm.
The evidence before the district court did not create a genuine issue of material
fact on whether NALC had breached its duty of fair representation. First, the record
fails to show arbitrary conduct by NALC. Instead, the evidence demonstrates that
NALC investigated Cochrane’s claim, and concluded, based upon its interpretation
of the collective bargaining agreement and the circumstances of Cochrane’s case, that
she did not have a grievable complaint. Further, there is no evidence that NALC
acted in bad faith or with discriminatory intent. See Schmidt v. Int’l Bhd. of Elec.
Workers, Local 949, 980 F.2d 1167, 1170 (8th Cir. 1992).
As Cochrane was required to show a breach of the duty of fair representation
to prevail against either defendant, see Scott v. United Auto., Local 879, 242 F.3d
837, 840 (8th Cir. 2001), summary judgment was also appropriate on her claim
against USPS for breach of the collective bargaining agreement, see Buford v.
Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The HONORABLE ROBERT W. PRATT, United States District Judge for the
Southern District of Iowa.
-2-
|
541 F.Supp. 1135 (1982)
David JORDAN and Sammie Chestnut, On Behalf of the Greenwood Voters League, Individually and on Behalf of others similarly situated, Plaintiffs,
v.
William WINTER, Governor of Mississippi; T. H. Campbell, III, Chairperson, Bill Harpole, Vice-Chairperson, J. C. "Con" Maloney, Secretary, Joint Congressional Redistricting Committee; Brad Dye, Lieutenant Governor of Mississippi and President of the Senate; and Clarence B. "Buddie" Newman, Speaker of the House of Representatives, Defendants.
Owen H. BROOKS, Sarah H. Johnson, Rev. Harold R. Mayberry, Willie Long, Robert E. Young, Thomas Morris, Charles McLaurin, Samuel McCray, Robert Jackson, Rev. Carl Brown, June E. Johnson, and Lee Ethel Henry, individually and on behalf of all others similarly situated, Plaintiffs,
v.
William F. WINTER, Governor of Mississippi, William A. "Bill" Allain, Attorney General of Mississippi, Edwin Lloyd Pittman, Secretary of State of Mississippi, in their official capacities and as members of the Mississippi State Board of Election Commissioners, Mississippi Democratic Executive Committee, Mississippi Republican Executive Committee, Defendants.
Nos. GC 82-80-WK-O, GC 82-81-WK-O.
United States District Court, N. D. Mississippi, Greenville Division.
June 8, 1982.
*1136 *1137 Frank R. Parker, Washington, D. C., Johnnie E. Walls, Jr., Greenville, Miss., Robert Bruce McDuff, Memphis, Tenn., for plaintiffs.
Bill Allain, Atty. Gen., Jackson, Miss., for defendants.
Before CLARK, Circuit Judge, and KEADY and SENTER, District Judges.
PER CURIAM:
Plaintiffs bring class actions on behalf of Mississippi residents and registered voters and the state's black residents and voters to (1) enjoin enforcement of the state's 1981 congressional redistricting plan until it is precleared under § 5 of the Voting Rights Act (42 U.S.C. § 1973c); (2) prohibit further use of Miss.Code Ann. § 23-5-223 (1972), the state's existing congressional plan, because of population malapportionment allegedly violative of Art. 1, § 2 and the fourteenth amendment to the United States Constitution; and (3) secure a court-ordered plan for the 1982 elections for members of the United States House of Representatives, and thereafter until changed by law. Defendants are the state's governor, attorney general, secretary of state, state board of election commissioners and the Republican and Democratic state executive committees which are responsible for conducting the primary and general elections for the United States House of Representatives in Mississippi.
The court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. *1138 § 1973j(f), and a three-judge district court has been properly convened pursuant to 28 U.S.C. § 2284.
In August 1981 the Mississippi Legislature enacted S.B. 2001, also known as 1981 Mississippi Laws (Extraordinary Sess.) Ch. 8, for redistricting the state's five congressional districts and thereafter submitted it to the Attorney General of the United States for § 5 preclearance. After requesting additional information, the Attorney General interposed timely objection on March 30, 1982. Although the state legislature was in session when the objection was received, it adjourned several days later without enacting another plan or further attempting to obtain preclearance from the Attorney General. Instead, on April 7, the state filed a declaratory judgment action in the United States District Court for the District of Columbia, seeking judicial preclearance of S.B. 2001. Mississippi v. Smith, No. 82-0956. This court has been notified that the declaratory judgment action, in which plaintiffs have intervened, will not be heard until mid-July. Since by Mississippi law, the 1982 congressional primaries were set for June 1 with runoff primary June 22, this court on April 26 found it necessary to order indefinite postponement of the current year's congressional primary pending expedited hearing on issues relevant to formulation of an interim court-ordered plan.
The parties are in agreement that the present circumstances require the court to adopt an interim redistricting plan effective until S.B. 2001 is precleared or an alternate plan is enacted by the state legislature and precleared under § 5. Admittedly, Mississippi is a covered jurisdiction under § 5 of the Voting Rights Act, and S.B. 2001 is a change in standards, practices or procedures with respect to voting within the meaning of § 5. The parties, however, vigorously disagree on what plan should be adopted by the court as an interim congressional redistricting plan.
During a two-day hearing on May 13 and 14, the court received stipulations, oral and documentary evidence and heard oral argument. Briefs of all concerned parties having been filed, we incorporate herein findings of fact and conclusions of law required by Rule 52(a), F.R.Civ.P.
I.
According to the 1980 official census, Mississippi has a total population of 2,520,638, of which approximately 35% are black. Since the state elects five members of the United States House of Representatives, the norm, or ideal population size for a congressional district is 504,128. Because of notable population shifts that have occurred throughout the state since 1970, the districts formed by the existing 1972 plan have a total population variance of 17.6%. The following table reflects the 1980 population, existing extent and percent of deviation, and percentage of minorities in the five 1972 districts:
Total
Dist. No. Pop. Deviation % Deviation Black %
--------------------------------------------------------------
1 495,709 8,419 - 1.67 29.90
2 460,780 43,348 - 8.60 45.25
3 514,218 10,090 + 2.00 37.87
4 500,329 3,799 - 0.75 45.37
5 549,602 45,474 + 9.02 19.78
In recognition of this disparity, the legislature in 1980 established a joint Senate-House Committee for Congressional Redistricting (Joint Committee), chaired by Representative Thomas H. Campbell, III, which converted census population data into the state's election precincts, conducted eight public hearings around the state and received the views and proposals of interested groups and individuals. Included among the submitted proposals were a number of plans advocated by legislators and citizens *1139 of both races. The plans submitted by blacks proposed joining the black majority counties in the northwest portion of the state known as the "Delta area" to other territory to create a black majority district, ranging from 52.1% to 65.81%.[1]
The Joint Committee recognized that the population variances had to be eliminated, but a majority of its members concluded this could be satisfactorily accomplished without diluting black voting strength by rearranging district lines to avoid incumbent congressmen from running against each other and by transferring only six counties and portions of four counties across district lines. Although Mississippi's congressional districting plans from 1882 to 1966 had contained a district encompassing most of the Delta counties, the committee did not feel obligated to voluntarily create a black majority district with a configuration different from the 1972 lines that had been previously precleared.[2]
The record further reflects that the Joint Committee disapproved any major change of the district lines and recommended a plan, the essence of which was enacted by the legislature as S.B. 2001, which achieved a population variance of .0422 by splitting four counties into adjacent districts (K-27). The stipulated data as to the total population, deviation, percentage of deviation, and percentage of total minority population[3] in the S.B. 2001 districts follow:
Total
District Population Deviation % Deviation Black %
--------------------------------------------------------------
1 504,107 - 21 - .0042 29.79
2 504,024 - 104 - .0206 47.95
3 504,237 + 109 + .0216 33.38
4 504,123 - 5 - .0010 45.32
5 504,147 + 19 + .0038 19.54
S.B. 2001 was objected to by the Attorney General on the ground it divided the black majority Delta and part-Delta counties among Districts 1, 2 and 3 rather than concentrating them in a single district and concluded there had been unlawful dilution of minority voting strength.[4] The Attorney General was of the view that the legislature's *1140 reliance upon the 1972 precleared plan was misplaced, and stated that while no objection to the 1972 plan was timely interposed, this was the result of an erroneous determination by his office that the Supreme Court's summary affirmance in Connor v. Johnson, 386 U.S. 483, 18 L.Ed.2d 224 (1967), was entitled to deference as to the § 5 issues.
Since it is apparent that the population deviations in congressional districts can be easily alleviated, the essence of the dispute centers around claims of dilution of black voting strength. Plaintiffs urge the court to adopt an interim plan with one district containing approximately 65% black majority population. To achieve this purpose, they have submitted two proposals, both of which were devised by Senator Henry J. Kirksey, a black legislator. The primary Kirksey plan (K-30) has a 64.37% black majority district and a total population variance of .2150%. This plan splits five counties, including populous Hinds County, from which a portion of the City of Jackson is combined with 14 Delta and part-Delta counties or segments thereof and with additional counties to form the black majority district. The following table presents the data concerning this plan.
Total
District Population Deviation % Deviation % Blacks
---------------------------------------------------------------
1 504,219 + 92 + .0182 25.60
2 503,436 - 691 - .1371 64.37
3 504,530 + 403 + .0799 32.49
4 504,035 - 92 - .0182 33.83
5 504,418 + 291 + .0577 19.75
The "fall-back" Kirksey plan (P. Ex. 15) urged by plaintiffs has a 65.81% black majority district and a total population variance of .230%; it splits five counties, including Hinds County, which is divided among three districts. The majority black district in this plan combines portions of the Cities of Jackson and Vicksburg with 15 Delta and part-Delta counties, or segments thereof. Pertinent data on the plan follow:
Total
District Population Deviation % Deviation Black %
--------------------------------------------------------
1 503,642 - 486 - .096 25.72
2 504,926 + 798 + .158 65.81
3 503,762 - 366 - .072 30.36
4 504,261 + 133 + .026 33.70
5 504,047 - 81 - .016 20.33
In addition to the two Kirksey plans, the Joint Committee had before it many other plans submitted by various legislators and *1141 citizens, including several plans developed by the committee staff on motion of Representative James C. Simpson which resulted in a plan referred to as the "Simpson amendment" (K-26). This plan, urged by AFL-CIO, as amicus curiae, has a total deviation of .2141%, and contains a district (District 2) which combines 15 Delta and part-Delta counties with six eastern rural counties to produce a 53.77% black majority district. Another district (District 4) has a 45.25% black district. The Simpson amendment only splits two rural counties and received considerable support in a floor vote occurring in the state House of Representatives. Miss. House Journal, Extraordinary Sess. 1981, p. 30. This plan is depicted below.
Total
District Population Deviation % Deviation Black %
-----------------------------------------------------
1 504,671 + 543 + .1077 25.86
2 504,697 + 569 + .1128 53.77
3 503,760 - 368 - .0729 31.23
4 503,893 - 235 - .0466 45.25
5 503,617 - 511 - .1013 19.84
Other plans considered but rejected by the legislature have not been urged for adoption by this court. The state officials, however, urge implementation as an interim plan of S.B. 2001, the existing 1972 redistricting plan, or a plan to be drawn by the court only slightly modifying either one of the preceding two.
II.
All parties agree that under § 5 and decisional precedent, this court serves only a limited function in congressional redistricting cases. Our task becomes an "unwelcome obligation" to prescribe an interim plan which will be effective merely until a redistricting plan adopted by the state can lawfully be used in its place, i.e., until either the District of Columbia court renders declaratory judgment upholding S.B. 2001 or the Mississippi legislature enacts another redistricting plan which is precleared under § 5. Moreover, notwithstanding a suggestion in McDaniel v. Sanchez, 452 U.S. 130, 149, 101 S.Ct. 2224, 2236, 68 L.Ed.2d 724, 739 (1981), that a federal district court should fashion its own plan, this court lacks the time, ability, and record basis to independently create a plan which could be implemented with sufficient promptness to allow the orderly conduct of the 1982 congressional primary and general elections. These limitations thus require us to choose from among the several plans urged for adoption in these proceedings. Cf. Terrazas v. Clements, 537 F.Supp. 514, at 520-521 (N.D.Tex. 1982) (three-judge court).
Mississippi is precluded by the express terms of § 5 from implementing S.B. 2001 so long as it remains unprecleared. See Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975); Dotson v. City of Indianola, 521 F.Supp. 934 (N.D.Miss. 1981) (three-judge court). Section 5, however, does not by its terms prohibit a federal district court from utilizing, on an interim basis, an unprecleared plan. Indeed, it would be a rare case in which a federal court, compelled to devise an interim redistricting plan, would have opportunity to place into effect a plan that had been precleared under § 5. Although circumstances might arise in which a federal court could order, on an interim basis, implementation of an unprecleared legislative plan, we conclude that any action by this court to so order S.B. 2001 into effect would be an injudicious exercise of our equitable remedial power. We base this view on several factors indisputably present in this case.
When S.B. 2001 was submitted, it was specifically objected to by the Attorney *1142 General, who concluded that it violated § 5. Insofar as this court's interim plan-making task is controlled by the Voting Rights Act, we may not substitute our judgment for that of the Attorney General. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). The proceedings under that Act which the State of Mississippi has instituted in the District Court of the District of Columbia will determine whether S.B. 2001 passes statutory muster for permanent use. It would be both inappropriate and unseemly for us to implement on a temporary basis the plan which those proceedings seek to preclear since we have other plans which will allow us to order temporary redistricting which adequately reconciles state political policy with federal statutory and constitutional standards. For these reasons the court rejects the defendants' suggestion that S.B. 2001 may be used on an interim basis. We expressly refrain from any action which may be viewed as indicating a position on either side of the issues pending in the District Court for the District of Columbia.
As to the existing 1972 congressional plan, the command of Art. 1, § 2 of the United States Constitution is that representatives be chosen "by the People of the several States." That article permits only those population variances among congressional districts that are "unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S.Ct. 1225, 1229, 22 L.Ed.2d 519, 525 (1969); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Under admitted facts, the state's existing plan with a 17.6% population variance renders it grossly malapportioned, and since it is readily apparent that this degree of malapportionment is not unavoidable, we declare it to be unconstitutional, and plaintiffs are entitled to summary judgment on that issue as a matter of law.[5] Since plans with substantially lower population variances are available for use, implementation of the 1972 plan, even on an interim basis, would be without justification, and defendants' contention that the 1972 plan be used temporarily is not constitutionally permissible.[6] Accordingly, our decision is narrowed to consideration of the two Kirksey plans and the Simpson amendment proposal.
In determining which plan to place into effect as an interim plan, we must "reconcil[e] the requirements of the Constitution with the goals of state political policy." Connor v. Finch, 431 U.S. 407, 414, 97 S.Ct. 1828, 1833, 52 L.Ed.2d 465 (1977). Moreover, McDaniel, supra, compels us to consider § 5 criteria. Thus, any plan adopted by this court as a temporary method of ensuring upcoming elections cannot violate Art. 1, § 2, the fourteenth amendment, or the Voting Rights Act. In particular, such a plan must satisfy the one person, one vote rule and avoid any dilution of minority voting strength. The three plans before us comply with these federal considerations and no tenable argument could otherwise be made. Since federal standards are met, we must now analyze each plan in light of the state's political policies.
We are guided by the Supreme Court's recent decision in Upham v. Seamon, ___ U.S. ___, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982). In Upham, the Court clearly held that, in fashioning an interim reapportionment order, a district court must adhere to the state's political policies except to the extent such policies are violative of either the Constitution or the Voting Rights Act. See also, White v. Weiser, 412 U.S. 783, 795, *1143 93 S.Ct. 2348, 2354-2355, 37 L.Ed.2d 335, 346 (1973). As adduced at trial, the state's primary political policies reflected in the passage of S.B. 2001 may be summarized as follows: (1) minimal change from 1972 district lines; (2) least possible population deviation; (3) preservation of the electoral base of incumbent congressmen; and (4) establishment of two districts with 40% or better black population. As to the latter policy, the majority of the Joint Committee and legislature subscribed to the belief that a plan with two minority districts containing at least 40% black population was preferable to a plan that sacrificed two such "high impact" minority districts for one district with a significant black majority. The prevailing legislative view was that in order to ensure a congressman's responsiveness to the needs and interests of black citizens, the district should be at least 40% black whenever possible; any lesser percentage, in its view, would likely result in insensitivity to the black constituency.
In determining the validity vel non of these state policies, we note the Attorney General's conclusion that the state's action in drawing lines for Districts 1, 2 and 3 from east to west violated § 5 by unlawfully diluting black voting strength. Since the validity of that determination lies at the heart of the proceedings now pending in the District Court of the District of Columbia, we simply accept that decision for the purposes of this ruling without any indication of a view on its merits. No one argues that the second and third policies offend either the Constitution or the Voting Rights Act. As to the last factor, plaintiffs contend only that one 65% black majority district would better serve the interests of blacks than would two 40% or better black population districts since a 65% black district is more likely to assure election of one black congressman. However, we are bound by the legislative preference for two high black impact districts unless that determination violates constitutional or statutory mandates. We emphasize that it is not our function to substitute our judgment for the state's political program in this respect, absent federal invalidity. We find no federal bar to this aspect of the state's political objective.
At the outset, we note that neither the Constitution nor the Voting Rights Act requires proportional representation. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). What is required is that the state deal fairly with its black citizens by avoiding any scheme that has the purpose or effect of unnecessarily minimizing or fragmenting black voting strength. White v. Regester, supra. As noted by the District of Columbia Court in State of Mississippi v. United States, 490 F.Supp. 569, 582 (D.D.C.1979) (three-judge court), aff'd mem. 444 U.S. 1050, 100 S.Ct. 994, 62 L.Ed.2d 739 (1980), in applying § 5 criteria: "No state or political subdivision is required to search for ways to maximize the number of black voting age population districts. Likewise, no racial group has a constitutional or statutory right to an apportionment structure designed to maximize its political strength." Moreover, the Fifth Circuit has recognized that "the realities of partisan politics may enable a minority in some circumstances to exact more political concessions by swinging its vote to one of two candidates whose majority-race following is approximately equal than it could by electing a candidate of his own identity." Wyche v. Madison Parish Police Jury, 635 F.2d 1151, 1160 (5 Cir. 1981). And "[a] court-ordered racial gerrymander which would assure that blacks form a sizeable electoral majority in a single district may not be nearly as effective a guarantee of access as the creation of two or more districts with substantial black voter populations such that all candidates in those districts must be responsive to the needs and aspirations of the black electorate." United States v. Board of Supervisors of Forrest County, 571 F.2d 951, 956 (5 Cir. 1978). *1144 Since the establishment of a "safe" minority seat is not a federal prerequisite of a reapportionment plan, Wyche, supra, at 1161, we conclude that the state's policy of favoring 40% or better black population districts was legitimate.
A consideration of these legitimate state political policies compels us to adopt, as an interim redistricting plan, the Simpson amendment. The Kirksey plans are repugnant to valid state policies inasmuch as they erode the electoral bases of incumbent congressmen in Districts 2 and 4, contain a larger population variance than the Simpson amendment, and disregard the state's policy of creating two high black impact districts. Moreover, these plans represent an obvious racial gerrymander by running a line from District 2 partially into metropolitan Hinds County and the City of Jackson solely to include a large and overwhelming black population corridor having little in common with the rest of what is essentially a rural district.
The Simpson amendment, on the other hand, more nearly satisfies the state's criteria by: (1) preserving constituencies of incumbents; (2) maintaining a population deviation of only .2141%; and (3) creating two 40% or better black districts. In addition, the Simpson amendment accords with racial fairness by including a majority black district of 53.77% centered in the Delta area. Plaintiffs challenge that the Simpson amendment or any other plan without a 65% or better black majority district violates the § 5 standard against retrogression of minority voting strength, relying upon Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). We reject this argument which is based upon the premise that the correct benchmark for measuring retrogression is former District 3, as it existed in the 1956 plan, and containing 11 Delta counties having a 65.51% black majority under 1960 census figures. Laying aside the state's position that retrogression should be determined by comparison with the 1972 plan, it is clear that since the Voting Rights Act became effective on November 1, 1964, retrogression must be determined in accordance with district lines existing no earlier than that date. The plan then in effect, i.e., the 1962 plan, contained the same Delta counties as the 1956 plan, combined with 13 other counties to form old District 2, which then had a 59.29% black majority population. Of course, if the district lines in effect on November 1, 1964, had never been changed, § 5 retrogression could not be implicated, even if there was a reduction in the percentage of blacks residing in former District 2. Computations show that, under 1980 census figures, the formerly 59.29% black majority district is now comprised of only 48.09% black population. Thus, the Simpson amendment with a 53.77% majority district represents an augmentation, rather than diminution, of black voting strength.
Other significant advantages inherent in the Simpson amendment are that it splits only two sparsely settled counties along established precinct lines, preserves a high degree of community of interest in all five districts, including the black majority District 2 which is chiefly an agricultural area, and satisfies concepts of contiguity and compactness. It is equitable that these considerations be taken into account in choosing a plan. We therefore find that the Simpson amendment most nearly satisfies constitutional and statutory constraints while reconciling state political policy, and direct it be used by the State of Mississippi pending preclearance of a statutorily permissible plan.
Accordingly, the court hereby establishes congressional districts for primary and general elections for 1982, and thereafter until a plan is precleared by the State under § 5 of the Voting Rights Act, as follows:
District No. 1 shall consist of the following counties and parts thereof: DeSoto, Tate, Panola, Tallahatchie (all except the precincts of Phillip, Leverette and Cascilla), Marshall, Lafayette, Yalobusha, Grenada, *1145 Calhoun, Benton, Tippah, Union, Pontotoc, Chickasaw, Alcorn, Tishomingo, Prentiss, Lee, Itawamba and Monroe.
District No. 2 shall consist of the following counties and parts thereof: Tunica, Coahoma, Quitman, Bolivar, Washington, Sunflower, Tallahatchie (precincts of Phillip, Leverette and Cascilla), Leflore, Carroll, Montgomery, Webster, Choctaw, Attala, Leake, Madison, Holmes, Humphreys, Yazoo, Sharkey, Issaquena and Warren.
District No. 3 shall consist of the following counties and parts thereof: Clay, Oktibbeha, Lowndes, Winston, Noxubee, Neshoba, Kemper, Rankin, Scott, Newton, Lauderdale, Simpson (all except the precincts of Harrisville, Pearl, Fork Church and Bridgeport), Smith, Jasper, Clarke and Jones.
District No. 4 shall consist of the following counties and parts thereof: Hinds, Claiborne, Copiah, Jefferson, Adams, Franklin, Lincoln, Lawrence, Jefferson Davis, Wilkinson, Amite, Pike, Walthall, Marion, Simpson (precincts of Harrisville, Pearl, Fork Church and Bridgeport).
District No. 5 shall consist of the following counties: Covington, Wayne, Lamar, Forrest, Perry, Greene, Pearl River, Stone, George, Hancock, Harrison and Jackson.
The boundaries of all counties and precincts mentioned above shall be such boundaries as they existed on July 1, 1981. A map depicting the aforesaid plan is appended to this opinion.
Furthermore, the court, after considering the time requirements for candidate qualification and campaigning, and to prepare for the orderly conduct of the 1982 congressional primary and general elections, orders into effect the following schedule:
July 13, 1983 at 6 Deadline for
p. m. candidate
qualification for
primaries
August 17, 1982 First Primary
August 31, 1983 Second Primary
September 14, 1982 Deadline for
at 6 p. m. independent
candidate
qualification
November 2, 1982 General election.
Our order shall also specify further election procedures applicable to the 1982 congressional primary and general elections.
*1146 APPENDIX
NOTES
[1] The Mississippi Delta consists of 19 Delta and part-Delta contiguous counties as follows: Bolivar, Carroll, Coahoma, DeSoto, Grenada, Holmes, Humphreys, Issaquena, Leflore, Panola, Quitman, Sharkey, Sunflower, Tallahatchie, Tate, Tunica, Warren, Washington, and Yazoo. This is a distinct geographical area of the state traditionally featuring an agricultural economy concerned with flood control of the Mississippi River. The geography of the Delta has been colorfully and somewhat accurately described as "beginning in the lobby of the Peabody Hotel at Memphis, Tennessee, and ending at Catfish Row in Vicksburg, Mississippi." Since early times, concentrations of blacks have resided in the Delta area. In fact, of the 21 black majority counties in Mississippi, 14 are located in the Delta.
[2] In 1966, the legislature first adopted a plan dividing the north and north-central portions of the state by drawing east/west lines generally across the state which segmented black majority Delta counties into three districts. Civil rights plaintiffs' challenge of the plan as a racial gerrymander violative of the fifteenth amendment was turned down in Connor v. Johnson, 279 F.Supp. 619 (S.D.Miss.1966), aff'd. 386 U.S. 483, 87 S.Ct. 1174, 18 L.Ed.2d 224 (1967). The 1966 plan was in fact never submitted and precleared in accordance with § 5. In 1972, the legislature substantially reenacted the 1966 plan, adjusting only for population variances. On May 10, 1972, the Attorney General precleared the 1972 act, which was utilized without challenge for five congressional elections.
[3] Black voting age population is approximately 5% lower than total population figures.
[4] The Attorney General's objection letter stated in part:
Our analysis shows that, according to 1980 Census data, the State is authorized five congressional districts and has a population which is 35.2 percent black. The black population in large part still is concentrated in the Delta region. District Nos. 1, 2 and 3 of the reapportionment plan have been drawn horizontally across the majority-black Delta area in such manner as to dismember the black population concentration and effectively dilute its voting strength.
Alternate proposals were presented to the reapportionment body which would have avoided the fragmentation and dilution of minority voting strength in the Delta area, and we have received complaints that such alternate proposals were rejected for racially discriminatory reasons. Our own review has revealed that, in fact, reasonable alternatives could be drawn which would avoid the fragmentation and dilution of minority voting strength in the Delta area and the State's submission offers no satisfactory explanation for, or governmental interest in, the rejection of such alternatives. The adoption of the east-west configuration of the proposed plan, instead of a configuration which recognizes the Delta as a community of interest, suggests to us an unnecessary retrogression in the position of black voters in Mississippi.
Accordingly, we are unable to conclude that the submitted plan meets the requirements of the Act in its treatment of the Delta area. I must, therefore, on behalf of the Attorney General, interpose an objection to Senate Bill No. 2001 pursuant to Section 5 of the Voting Rights Act of 1965.
[5] See Kirkpatrick, supra (invalidating plan with variance of 5.97%) and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969) (variance of 13.1% invalid).
[6] This is not a case such as Wells, supra, and Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), wherein the courts were required, because of exigent circumstances, to implement malapportioned redistricting plans. In the case sub judice, plans with much lower population variance are readily available.
|
824 S.W.2d 869 (1992)
Martha PERRY, Movant,
v.
William T. WILLIAMSON and Doris J. Williamson, Respondents.
No. 90-SC-773-DG.
Supreme Court of Kentucky.
February 13, 1992.
*870 Norman E. McNally, Edward F. Rectenwald, Louisville, for movant.
Chester A. Vittitow, Louisville, for respondents.
LEIBSON, Justice.
The sole issue in this case is whether the trial court properly instructed the jury on the duties owed by the respondents, William and Doris Williamson, as persons in possession of residential real estate, to the movant, Martha Perry, who had come to the premises as one of several Jehovah's Witnesses to follow up on an inquiry from a daughter in the household regarding their literature. Movant was standing on the front porch at the door of the respondents' house when she was struck by a falling limb from a dead tree in the front yard. At this point there is no dispute as to her status in using the premises being that of a licensee.
The case was submitted to the jury under instructions which the respondents claim, and successfully argued at the Court of Appeals level, were inappropriate to describe the duties of the landowners in the circumstances. These instructions were taken almost verbatim from the sample instruction in Palmore's Kentucky Instructions to Juries, 2d Ed.1989, Sec. 24.09, Instruction No. 2. The only differences between Palmore's instruction and the instruction given at the trial of this case were factual references necessary to accommodate the facts of this case.
The respondents insist that while the instruction on liability given at the trial might have been suitable had the movant enjoyed the status of an invitee, it lacked necessary elements which must be proved to merit recovery by a licensee. The instruction set out in Palmore's Sec. 24.09 is explicitly stated in the "Comment" as an appropriate example where there is "a jury question as to the status of the injured party" as an invitee or a licensee. The instruction in its entirety leaves no doubt that Instruction No. 1 in the sample instruction sets out the defendant's duties if the jury finds the plaintiff is an invitee, and Instruction No. 2 then applies if the jury is "not satisfied from the evidence" that plaintiff was an invitee as defined by circumstances set out in Instruction No. 1. Respondents' counsel insists that Instruction No. 2 as well as Instruction No. 1 describes liability only where the plaintiff is an invitee, but plainly that is not the intent of the author.
Respondents' counsel has badly misunderstood Palmore's Sec. 24.09 and the "Comment" which explains the underlying legal principles illustrated through the instructions. Nevertheless, the basic question is not whether the trial court has followed the sample instruction set out in Palmore, which it has, but whether the instructions given properly apply the law of the State of Kentucky. The Court of Appeals has held that the instructions given were erroneous, and reversed and remanded for a new trial. With all due deference to the scholarly quality of Palmore's *871 Instructions, we recognize the issue is whether the trial court's instructions are correct, not whether the trial court has followed Palmore. For reasons that we will discuss, we have concluded that both the trial court and Palmore have correctly applied the law in this case. Accordingly, we reverse the Court of Appeals and reinstate the judgment entered in the trial court.
Before addressing the instructions, for a clearer understanding of where we are in this case we need to refer first to other issues which are no longer part of this case.
There is no cross-motion for discretionary review in this case. Thus there were certain questions presented to the Court of Appeals which are no longer at issue. These are:
1) Were the respondents entitled to a directed verdict? The Court of Appeals held there was sufficient evidence to establish both movant's status as a licensee rather than as a trespasser and liability to a licensee in the circumstances.
2) Did the trial court err in failing to include a comparative negligence instruction? The Court of Appeals held, citing Gravatt v. B.F. Saul Real Estate Investment Trust, Ky., 601 S.W.2d 287 (1980), that "in a case like this," where liability is premised on "[t]he duty owed by the possessor. . . to warn of hazards which are not obvious," comparative negligence is not an issue, because "if the hazard is obvious, than the possessor cannot be liable in the first place."
3) Did the trial court err in admitting evidence and instructing upon medical expenses for a post-accident condition for which the proof was insufficient to connect it to the occurrence? The Court of Appeals held that since it was "reversing this matter on other grounds [error in the instructions], we need not reach this issue."
As stated above, the first two of these issues were rejected by the Court of Appeals, and the third was mentioned but not "addressed." Our rules are specific that if the motion for discretionary review made by the losing party in the Court of Appeals is granted, it is then incumbent upon the prevailing party in the Court of Appeals to file a cross-motion for discretionary review if respondent wishes to preserve the right to argue issues which respondent lost in the Court of Appeals, or issues the Court of Appeals decided not to address. If the party prevailing in the Court of Appeals wishes further consideration of such issues along with the issues for which discretionary review has been granted, the prevailing party must file a cross motion for discretionary review. CR 76.21; Green River Dist. Health Dept. v. Wigginton, Ky., 764 S.W.2d 475 (1989); Comm. Transportation Cabinet Dept. of Highways v. Taub, Ky., 766 S.W.2d 49 (1988).
Now we turn to the issue before us: were the instructions erroneous? The reasons stated in the Court of Appeals' Opinion for so holding are three:
1) "[L]iability was premised upon knowledge of the deteriorated condition of the tree alone, although an additional requirement is that the appellant should have realized that the condition of the tree involved an unreasonable risk of harm to the appellee."
2) "Further, the instructions did not require a finding that the appellants had reason to believe that the appellee would not discover the condition of the tree or appreciate the risk of harm."
3) "[T]he trial court's instruction in subsection [c] speaks not only of actual knowledge of the condition of the tree, but also knowledge brought to the attention of the appellants `by information from which in the exercise of ordinary care they should have known it.'"
Because the instruction was an attempt to paraphrase Palmore, we start our discussion with a comparison between the two. Palmore's instruction in Sec. 24.09, in its entirety, is an instruction drawn up to cover the situation where there is an issue "whether [the] injured party was an invitee or licensee." No. 1 then states both what the jury must believe to find the plaintiff was an invitee and what the jury must *872 believe to find liability in the event the plaintiff is found to be an invitee. No. 2 then starts with a prefatory phrase that the jury will apply it if the jury is "not satisfied from the evidence that P's [plaintiff's] purpose in going into the room" was such that plaintiff was an invitee under No. 1. No. 2 then proceeds with what the jury must find to find liability against the defendant if the plaintiff is not an invitee but a licensee. It is helpful to a full understanding of this case to set out Palmore's No. 2 side by side with the trial court's jury instruction given in this case. When we do so it is clear that the trial court succeeded in its effort to paraphrase Palmore's instructions, so the issue then becomes only whether Palmore's sample instruction was wrong.
PALMORE'S INSTRUCTIONS TRIAL COURT'S
1989 INSTRUCTIONS
2. . . . you will find for P only if you You will find for Plaintiff, Martha
are satified from the evidence as follows: Perry, if you are satisfied from the
evidence as follows:
(a) that P was in the room with D's (a) that Plaintiff was upon the premises
permission, either express or implied; with Defendants' permission, either
express or implied;
(b) that by reason of the hole covered (b) that by reason of the deteriorated
over with sheetrock the floor in the condition of the tree mentioned in the
room was not in a reasonably safe condition evidence the premises were not in a
for use by P; reasonably safe condition for use by
Plaintiff;
(c) that D had actual knowledge of (c) that Defendants had actual knowledge
such condition [or it had been brought of such condition (or it had been
to his attention by information from brought to their attention by information
which in the exercise of ordinary care from which in the exercise of ordinary
he should have known it]; care they should have know it);
(d) that D had such knowledge or information (d) that Defendants had such knowledge
in sufficient time to prevent or information in sufficient time to
the accident; prevent the accident;
(e) that in the exercise of ordinary (e) that in the exercise of ordinary
care D should have anticipated that P care Defendants should have anticipated
might step on the sheetrock covering that Plaintiff might step upon the
the hole in the floor unless forewarned mentioned premises, unless forewarned
of the danger; of the danger;
AND AND
(f) that the absence of such a forewarning (f) that the absence of such a forewarning
to P was a substantial factor in to Plaintiff was a substantial
causing the accident. factor in causing the accident.
In both the sample instruction in Palmore and the present case the person injured has come upon the property with the implied permission of the person in possession. As stated in the Court of Appeals' Opinion, "there exists an implied invitation for one to come up to the house of another for information, visitation, or the like. See City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (1941); see also 75 Am.Jur.2d Trespass § 41 (1974)." Such a person is a licensee just the same as the hypothetical plaintiff in Palmore's sample instruction, Sec. 24.09, No. 2 who was not a business invitee because there was no mutual business purpose. Both Palmore's example and the present case are premised on a situation where there is evidence from which the jury could find a latent or unobservable *873 condition, which the defendant knows of and should know is unreasonably unsafe if a licensee comes upon the premises. In Palmore's example it is a "hole covered over with sheetrock," and in the instruction given in the present case it is "the deteriorated condition of the tree mentioned."
Subpart (b) of the instruction, both in Palmore's example and the case now under consideration, requires a finding by the jury before liability attaches (1) that the condition exists and (2) that it is unreasonably unsafe. If such condition exists and is known to the person in possession, it is his duty to a licensee to forewarn of the danger if he has not corrected it. As Palmore explains:
"Sometimes the duties toward a licensee are stated in terms of an alternative that is, if a condition known to or brought to the attention of the possessor presents an unreasonable risk of harm to the licensee the duty of the possessor is (a) to correct it or (b) to warn against it. [Citations omitted.] Basically, however, the possessor has no duty to provide safe premises for a licensee. Making the premises safe is merely an option on his part as a means to obviate what otherwise is . . . the duty to warn."
Apparently the Court of Appeals believed it was error not to impose "an additional requirement . . . that the appellants [land occupiers] should have realized that the condition of the tree involved an unreasonable risk of harm to the appellee." As stated in Gravatt v. B.F. Saul Real Estate Investment Trust, Ky., 601 S.W.2d 287 (1980), authored by Chief Justice Palmore, (who of course, also authored the example instruction criticized by the Court of Appeals):
"The reason for publication of this opinion is to dispel a misconception with respect to whether a possessor's exposure to liability rests upon knowledge of a particular condition or upon his further knowledge or realization that the condition is dangerous.
. . . .
To make a long story short, if the possessor of premises has knowledge of a condition that a properly-instructed jury finds unreasonably hazardous to a licensee exercising ordinary care for his own safety, then it does not make any difference whether the possessor had actual cognizance of the danger. It is enough that he was aware of the condition itself. The law holds him to that which an ordinarily prudent person with the same knowledge would have anticipated." Id. at 289.
The key to the land occupier's liability to the licensee lies in knowledge of a condition which a reasonably prudent person would realize is dangerous to an unsuspecting licensee, should one come upon the premises. It is not necessary that the land occupier admit that he knew the condition was unsafe because if he knows of the condition and it is unsafe, the law requires him to know it is unsafe. As stated in Gravatt, supra, "it does not add anything" to use the adjective "unsafe" in the instruction which requires a finding the defendant knew of the condition or had "information from which in the exercise of ordinary care he should have known it." Id. The reason this is so, as stated in the Gravatt Opinion is because:
"It is the duty of the possessor to foresee that a condition known to himself presents an unreasonable risk of danger to an expected user of the premises exercising ordinary care for his own safety." Id. at 289.
The Court of Appeals mistakenly believed that an earlier case from our Court, which was not overruled in Gravatt, Kentucky & West Virginia Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537 (1942), called for a different result. The Kentucky & West Virginia Power Co. case involved injury to a licensee from a gas explosion that occurred during his use of the premises. The instruction was in error because it "imposed on the defendant the duty of discovering the presence of the gas [the condition]." But the instruction in the present case did not impose upon the defendant the duty of discovering the presence of the tree; on the contrary, it did not impose liability unless the jury found that *874 (1) the tree was in a "deteriorated condition" that (2) made the premises unreasonably unsafe ("not in a reasonably safe condition"), and (3) the defendant "had actual knowledge of such condition" or "information from which in the exercise of ordinary care" the defendants "should have known of the condition."
Next, the Court of Appeals' Opinion points out, presumably as error that "the instructions did not require a finding that the appellants had reason to believe that the appellee would not discover the condition of the tree or appreciate the risk of harm."
The Court of Appeals' Opinion answers its own criticism in this respect elsewhere while discussing the contributory negligence aspect of the case:
"As pointed out in Gravatt, a finding by a jury in a case like this that the possessor of the land is liable excludes a finding of contributory negligence on the theory that the condition and danger should have been obvious to the licensee. The duty owed by the possessor is to warn of hazards which are not obvious, see Shipp v. Johnson, Ky., 452 S.W.2d 828 (1970), and if the hazard is obvious, then the possessor cannot be held liable in the first place."
"If the hazard is obvious" then it does not involve an unreasonable risk of harm to the licensee. A separate instruction to this effect adds no additional element to what the jury must find to impose liability.
Both the parties have referred to the Restatement (Second) of Torts, Sec. 342, as appropriately describing when the possessor of land is subject to liability for dangerous conditions which he knows of and should realize involve an unreasonable risk of harm to licensees. As stated in Comment e:
"The liability of a possessor of land who invites or permits licensees to enter his land is not based upon a duty to maintain it in safe condition. It is based upon his duty to disclose to them the risk which they will encounter if they accept his invitation or permission. He is required to exercise reasonable care either to make the land as safe as it appears, or to disclose the fact that it is as dangerous as he knows it to be. Therefore it is immaterial that a dangerous condition known to him, and which he has reason to believe that the licensees will not discover, is natural rather than artificial." [Emphasis added.]
Thus the difference between the artificial condition in Palmore's sample instruction, Sec. 24.09, and the natural condition as constituted by the deteriorated tree is "immaterial." The movant's evidence was that the respondents knew the tree was dead, knew it did not leaf out the year before, knew that limbs had been falling off for some time, and knew that the tree needed to be cut down; that such information had been brought to their attention by a person in the business. In such circumstances the comment in the Restatement that the possessor of land "is required to exercise reasonable care either to make the land as safe as it appears, or to disclose the fact that it is as dangerous as he knows it to be," is appropriate.
The third fallacy in the Court of Appeals' Opinion is its statement that subsection (c) of the trial court's instructions was confusing or "could be construed to impose a duty on the appellants to exercise ordinary care to investigate for and discover dangerous conditions on their land." On the contrary, subsection (c) did no more than explain that actual knowledge includes knowledge "brought to their attention by information from which [the respondents] . . . should have known" of the condition. As otherwise explained in Palmore's "Comment" to Sec. 24.09:
"It will be noted that the bracketed portion of Instruction 2(c) in this example permits the jury to infer actual knowledge on the part of D from evidence that he had sufficient information from which in the exercise of ordinary care he should have known. Sec. 342 and other related sections of the Restatement, Tort 2d, use the expression `reason to know,' or `reason to realize,' which are defined in Restatement, Torts, 2d, Sec. 12. The *875 form chosen for the various examples in this work involving that principle seeks to express it in such a way as to avoid the necessity of a separate definition. It is important to observe the difference between this concept (notice or knowledge) and the duty to inspect."
A great deal of the confusion in this case, as exhibited in the briefs filed in this Court and in the oral argument, flows from trying to reason from off-the-rack labels: "trespasser," "licensee" or "invitee," rather than from basic negligence principles. The labels, "trespasser," "licensee" or "invitee," are not in themselves answers to what reasonable care requires in the circumstances. "The duty to exercise ordinary care commensurate with the circumstances is a standard of conduct that does not turn on and off depending on who is negligent." Gas Services Co., Inc. v. City of London, Ky., 687 S.W.2d 144, 148 (1985); see also Grayson Fraternal Order of Eagles v. Claywell, Ky., 736 S.W.2d 328, 332 (1987). The injured party's status as trespasser, licensee, or invitee, is an important factor in determining whether the possessor of land has exercised reasonable care, but such status is by no means the end of the inquiry. An enlightened legal system does not reason backward from labels, to decide whether a duty of reasonable care exits. It reasons forward from circumstances, using foreseeability, the gravity of the potential harm, and the possessor's right to control his property, to decide what is reasonable conduct in the circumstances and what is negligence. Prosser & Keaton, Law of Torts, Sec. 53 (5th ed. 1984), discusses "the `artificial condition' of reasoning from the premise of `no duty' in disregard of negligence principles." Thus we recognize that the only difference between the duty which would have been owed to Ms. Perry had she been a business invitee, and the duty which was in fact owed to her under the circumstances of this case in her status as a gratuitous licensee, is that the respondents were under no duty of reasonable care to discover the existence on their premises of a dangerous condition, as would be the case with a business invitee. This difference was covered adequately by subsection (c), which required before imposing liability that the jury be satisfied from the evidence that respondents had "actual knowledge" of the condition "or [had] information from which in the exercise of ordinary care they should have known it."
The duty owed by the person in possession of land to others whose presence might reasonably be anticipated, is the duty to exercise reasonable care in the circumstances. The traditional classifications, "trespasser," "licensee" and "invitee," are simply convenient classifications for defining certain basic assumptions appropriate to the duty of the party in possession in the circumstances. These classifications help to define the real issue, which is what is reasonable care under the circumstances?
The most recent definitive text on tort law is Harper, James and Gray, The Law of Torts, 2d ed, Vol. 5, Secs. 27.8-11 (1986). Our Opinion here is consonant with the text of this treatise. We quote from Sec. 27.9:
"In judging these matters, all the circumstances must be considered. . . . As a general rule, more precautions are apt to be required where premises have been arranged for the entry of more or less identified segments of the public, . . . ." Id. at 206-07.
. . . .
In the case of licensees, however, most courts today extend the occupier's duty to any danger (from a condition known to the person in possession) that the licensee cannot reasonably be expected to observe, appreciate and avoid. . . .
The licensee must show defendant's knowledge of the dangerous pitfall, whether it be natural condition or arrangement of premises. He may of course do so circumstantially, even over defendant's denial. . . . While plaintiff must show the defendant had actual knowledge or `reason to know,' of the condition, defendant will be held to appreciate its danger if a reasonable person would do so.
*876 . . . If . . . deterioration becomes more imminent in time and more inevitable in fact, a point will be reached when actual knowledge of the danger at one time may be inferred from knowledge of the condition of potential danger at an earlier time." Id. pp. 210-12.
The instructions were sufficiently adequate and clear to appropriately describe the respondents' duty of reasonable care, and what would constitute a breach of such duty, appropriate to the circumstances of this case. Therefore, the decision of the Court of Appeals is reversed. The judgment in the trial court is reinstated and affirmed.
STEPHENS, C.J., and COMBS, LAMBERT, LEIBSON, REYNOLDS and SPAIN, JJ., concur.
WINTERSHEIMER, J., dissents by separate opinion.
WINTERSHEIMER, Justice, dissenting.
I respectfully dissent from the majority opinion because the jury was instructed erroneously on the law applicable to the facts in this case which involved injuries sustained by Perry when struck by a falling limb from a dead tree on the Williamsons' property. The instructions were patterned on Palmore's Kentucky Instructions to Juries, 2d Ed.1989, Sec. 24.09.
The majority correctly states the applicable part of the rule set out in Section 342 of the Restatement (Second) of Torts which has been adopted by Kentucky. Palmore's own comment to Section 24.09 says that his instructions are intended to paraphrase the Restatement.
The problem with the instructions in Palmore, as with that given by the trial judge, is that the jury is told to find what the possessor of the land either knew or should have realized as an ordinarily prudent person in the exercise of ordinary care. See Palmore's Comment to Section 24.35. What a reasonable person should realize from the facts known to him has nothing to do with exercising ordinary care. A person acts or does not act exercising ordinary care. In the civil realm, the person cannot carelessly not realize something. The state of realization is itself neither careless nor not careless. Consequently the only sensible way a jury could interpret the instruction is that the possessor should have done something to realize the situation better. The possessor was under no such duty.
Perry argues that the trial judge appropriately patterned the instructions on Section 24.09 of Palmore's Kentucky Instructions to Juries. The Williamsons claim the appellate reversal arose not from using the Palmore treatise, but from using the portion pertaining to a landowner's duties to an invitee rather than to a licensee.
I believe that the majority of the Court of Appeals panel was correct when they stated that:
The possessor of the land has a duty either to warn a licensee of or to make reasonably safe the dangerous condition if the possessor knows or has reason to know of the condition, and if the possessor should realize that it involves an unreasonable risk of harm to a licensee, who the possessor also has reason to believe will not discover the condition or realize the risk.
Under the instructions given in this case, liability was premised upon knowledge of the deteriorated condition of the tree only, although an additional requirement is that the Williamsons should have realized that the condition of the tree involved an unreasonable risk of harm.
I would affirm the decision of the Court of Appeals.
|
34 F.3d 525
Keith RUEHMAN and Alan Miller, Plaintiffs-Appellees,v.Michael SHEAHAN, Sheriff of Cook County, Illinois,Defendant-Appellant.
Nos. 93-4031, 94-1333.
United States Court of Appeals,Seventh Circuit.
Argued April 19, 1994.Decided Sept. 6, 1994.
Thomas G. Morrissey (argued), Mary D. Cahill, Mary L. Boelcke, Chicago, IL, for plaintiffs-appellees.
Robert D. Quinlivan (argued), Chicago, IL, Mary Ellen Dienes, Northfield, IL, for defendant-appellant.
Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
1
Illinois courts issue arrest warrants faster than the police can execute them. Since 1982 the Sheriff of Cook County has used a computer called SPWA to track active warrants. The Sheriff's computer records more than 125,000 warrants. After a warrant issues from or is recalled by a court in Cook County, the Clerk of the Circuit Court puts a copy into a Sheriff's basket at the Clerk's office. Someone from the Sheriff's office periodically picks up these papers so that warrant clerks can enter them into SPWA. His staff keeps the paper records in separate files. The Clerk's office keeps a computer database of felony warrants; every month, the Clerk sends the Sheriff a list of non-traffic warrants and recall orders so the Sheriff can update his computer records. Although only the Sheriff's office has direct access to SPWA, other law enforcement agencies often ask for information by telephone or teletype, and the Sheriff obliges. The state police manage LEADS, a database that includes all active warrants in the state. Any officer who pulls over a motorist or questions a passerby can check with LEADS and SPWA to determine if the person is wanted in Illinois.
2
Keith Ruehman and Alan Miller accuse the Sheriff of neglecting to purge their warrants from SPWA, leading to their unlawful arrests by other law enforcement agencies in Illinois. A state judge sentenced Miller to seven days in jail for violating the terms of court supervision. Miller did not surrender as ordered; an arrest warrant was issued on August 31, 1989. Miller turned himself in one week later and served his term. The judge recalled Miller's warrant on September 7. On September 20 the Sheriff's staff entered the warrant into SPWA; the three-week delay is unexplained, as is the fact that the order of September 7 passed unnoticed in the Sheriff's office. The Sheriff forwarded a copy of the warrant to the Dolton police, who entered the warrant into the LEADS database. Miller was riding with friends in a car four months later. Oak Forest Police pulled the car over and found Miller's name in LEADS. A police dispatcher checked with SPWA, which confirmed that the Sheriff still thought Miller a fugitive. Miller was carrying an uncertified copy of the quash-and-recall order, but the police thought the computers more credible and arrested him.
3
Ruehman was arrested for drunk driving in 1986. He posted a bond but failed to appear in court in October 1986, and a warrant issued for his arrest. He voluntarily came to court in January 1987 and served 90 days in jail. The judge orally ordered the warrant recalled. State police cleared it from LEADS on January 12, 1987. The Sheriff claims not to have received a copy of the recall order and did not purge SPWA. Four years later, a Chicago Ridge officer stopped Ruehman's car and found that LEADS gave no reference to his name. The 1986 warrant was still in SPWA's memory banks, however. The police held Ruehman for more than 14 hours before finding the mistake.
4
Plaintiffs insist that proper training of clerks and regular auditing of SPWA would have saved them embarrassment and hardship. They say that the Sheriff's office didn't bother to check the SPWA database against the files in the Clerk's Office or State's Attorney's office for outdated traffic warrants (although it did cross-check for felony warrants), and that the Sheriff ignored warnings from his subordinates that inaccurate data permeated the system. The manual for the LEADS system requires regular auditing of all warrants against the Clerk's database; the Sheriff does not take this precaution. Had warrant clerks entered Miller's quash order into SPWA, Oak Forest Police would not have arrested Miller. Had the Sheriff checked his computer against the hard copies of court orders or the Clerk's files--even once in four years--he would have found that Ruehman was no longer wanted. Plaintiffs say that the Sheriff's policies led to many recalled warrants being reported as active although simple safeguards--which the state police observe--could have prevented erroneous arrests.
5
Ruehman and Miller sued under 42 U.S.C. Sec. 1983 everyone arguably involved with their arrests--the Sheriff in his individual and official capacities, the arresting officers, the Clerk of the Circuit Court of Cook County, several municipalities, and the municipalities' chiefs of police. The district court quickly dismissed the arresting officers on the ground of immunity, leading the plaintiffs to concentrate on the Sheriff. Yet the assumption that the police have immunity is questionable. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), tells us that officers may treat information that a warrant is outstanding for a suspect's arrest as presumptively correct, but when "the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest." Id. at 568, 91 S.Ct. at 1037. See also United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). An arrest without benefit of probable cause is illegal, no matter what the officers believed. Do persons who rely on incorrect information that a warrant exists receive immunity? We broached but did not resolve a similar issue in Gordon v. Degelmann, 29 F.3d 295, 299-300 (7th Cir.1994). Qualified immunity protects those who act in the shadow of legal uncertainty, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), but the errors here were entirely factual. Perhaps there is an open legal question whether officers may rely on a warrant-tracking system such as SPWA. See Duckett v. Cedar Park, 950 F.2d 272 (5th Cir.1992). We need not pursue the question, because the Sheriff is the only appellant (so far). In his official capacity, the Sheriff cannot claim qualified immunity. Instead he seeks shelter from the eleventh amendment, commonly called an "immunity" but actually a restriction on the jurisdiction of the federal courts. The district court denied the Sheriff's motion to dismiss, 842 F.Supp. 1043 (N.D.Ill.1993), and he immediately appealed. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., --- U.S. ----, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). The only parties to this appeal are Ruehman, Miller, and the Sheriff in his official capacity--which is to say, as a proxy for the polity of which he is an official. Will v. Michigan Department of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311-12, 105 L.Ed.2d 45 (1991).
6
But which polity is that? Everything depends on the answer, for although states and their agencies are protected by the eleventh amendment, Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), counties and municipalities are not. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977). An official-capacity suit challenging the execution of the warrants would be a suit against the state, because state courts issued the warrants. See Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879). Plaintiffs seek to avoid this pitfall by protesting the Sheriff's design of the warrant-tracking system. Their theory is that in designing and implementing SPWA, the Sheriff acted for Cook County.
7
If this strategy works, it may solve the plaintiffs' eleventh amendment problem at the expense of undercutting their claim against the Sheriff on the merits. The fourth amendment uses an objective standard, but the due process clause of the fourteenth amendment "applie[s] to deliberate decisions of government officials to deprive a person of life, liberty or property." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). See also Archie v. Racine, 847 F.2d 1211 (7th Cir.1988) (en banc). Plaintiffs do not contend that the Sheriff deliberately buried the quash-and-recall orders because he likes to arrest people without cause. Plaintiffs characterize their claims as protesting the Sheriff's "failure to heed warnings" about the system and "failure to audit" the system. Such allegations do not make out a constitutional tort. See Collins v. Harker Heights, --- U.S. ----, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Negligence, if that is what the Sheriff's decisions come to, does not violate the due process clause. See Mitchell v. Aluisi, 872 F.2d 577 (4th Cir.1989) (sheriff not liable under Sec. 1983 for negligently failing to recall a warrant). Ruehman and Miller might win on a state-law negligence theory, but errors of state law do not automatically violate the Constitution, even if they lead to improper arrests. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979); cf. Albright v. Oliver, --- U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).
8
On this interlocutory appeal, however, the only question presented is the jurisdictional consequence of the plaintiffs' theory. By casting their claim as they do, have the plaintiffs effectively sued the State of Illinois? Plaintiffs say not, because they do not want Illinois to pay them anything (they think that Cook County should pay), but this is not dispositive. It is not enough to ask who will pay if the Sheriff loses. The constitutional question is whether the suit is against a state. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908-09, 79 L.Ed.2d 67 (1984). A drain on the state treasury is not a necessary condition of an affirmative answer. Paschal v. Jackson, 936 F.2d 940 (7th Cir.1991); Jensen v. State Board of Tax Commissioners, 763 F.2d 272 (7th Cir.1985).
9
Under Illinois law, a sheriff is the chief law enforcement official of each county and therefore is not a state officer. Ill. Const. Art. VII Sec. 4(c). See also People ex rel. Davis v. Nellis, 249 Ill. 12, 23, 94 N.E. 165, 169 (1911). But a sheriff does not serve the county alone. He also follows orders from state courts. When he does so, we recognized in Scott v. O'Grady, 975 F.2d 366 (7th Cir.1992), he acts as a state officer, and a suit protesting his activities is a suit against the state. Any other approach would allow a federal court to frustrate the achievement of state policy. Id. at 371. A state acts only through agents, and at times a sheriff plays this role for Illinois. Therefore, Scott holds, a suit against a sheriff for executing a writ of assistance issued by a state court would interfere with the court's efforts to carry out state law, and so is a suit against the state.
10
Sheriff Sheahan contends that in designing and implementing the SPWA system he is equally an agent of Illinois. Well, would holding him liable for errors in the design and operation of the warrant-tracking system interfere with state policy (as opposed to county policy)? The way the district court saw things, everything turns on whether the Sheriff exercises discretion in running SPWA. That is surely part of the question under the eleventh amendment. The Sheriff is a state agent to the extent state law directs his activities. That was the case in Scott--in executing the writ, the Sheriff was obeying a command of the state court. It does not follow, however, that only persons whose every step is guided by positive law are acting for the state. Consider a member of the Governor's Cabinet. Such officials typically exercise a great deal of discretion, but that does not mean that they are acting for themselves. They exercise discretion in the name of the state. The effects of their choices are "state policy," and to interfere with their discretion is to change state policy. Is this a good characterization of the relation among the Sheriff, SPWA, and Illinois?
11
To show that his design decisions constitute state policy--or perhaps that the state wants him to make the decisions he did--the Sheriff relies on the following provision of state law: "Each Sheriff shall, in person or by deputy, attend upon all courts held in his or her county when in session, and obey the lawful orders and directions of the court." 55 ILCS 5/3-6023. This statute requires each sheriff to provide security in court and implement the court's orders. What has this to do with warrant-tracking computers? In the district court the Sheriff admitted that the answer is: "Nothing." In this court the Sheriff banked on a memorandum by Circuit Judge Gerrity regarding warrant tracking. At oral argument, however, counsel for the Sheriff conceded that, although the Circuit Court of Cook County directs him to execute valid warrants and disregard quashed ones, it exercises no control over the management of SPWA. The Gerrity memo reports procedures followed by law enforcement agencies in tracking warrants and does not order the Sheriff to use any particular procedures. The memo emphasizes that law enforcement should promptly enter recall orders without saying a whit about how it should be done. The Sheriff has not alerted us to authority that requires him to use any computer system--let alone this one--to track warrants. A county agency, under the president of the county board, specified the design of SPWA. The system, then, is designed and supervised from top to bottom by the Sheriff and the county government. State law requires the Sheriff to arrest the right people but says nothing about how he should do it. Design and auditing decisions have been left entirely to him. He could junk SPWA tomorrow, or alter its every detail, without thwarting any state policy or law. Each sheriff in Illinois is free to take a unique approach. A suit against the Sheriff would not prevent the state from later taking over the task of tracking warrants through, say, a single computer in the Clerk's Office. SPWA allows the Sheriff to find warrants faster than if he had to check with the Clerk's Office in the first instance, but is not the product of a state directive. It follows that in designing and implementing SPWA the Sheriff is not acting as the State of Illinois.
12
Sheriff Sheahan insists that because warrants and recall orders are state directives addressed to him, under state law he can be held in contempt of court for arresting a person on a quashed warrant. Just so. But he is in trouble for violating, not for following, this aspect of state law. That the Sheriff failed to follow a state court order does not necessarily keep him from acting "under color of state law." Ex parte Virginia, 100 U.S. at 348; cf. Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982). But the state's ability to punish him for careless handling of the warrant-tracking system is hardly evidence that will help the Sheriff show that he was an arm of the state. Private actors, too, face punishment for violating state rules. As we have stressed, in pursuing a due process theory against the Sheriff the plaintiffs may find obstacles such as Daniels too steep to surmount. But they are not defeated by the eleventh amendment.
13
AFFIRMED.
|
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0201n.06
Filed: March 22, 2005
No. 02-6169
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
ALI HADI SAWAF, EASTERN DISTRICT OF KENTUCKY
Defendant-Appellant.
/
BEFORE: KEITH and CLAY, Circuit Judges; OBERDORFER, District Judge.*
CLAY, Circuit Judge. Defendant, Ali Hadi Sawaf, appeals his conviction and sentence
pursuant to 21 U.S.C. § 841(a)(1) for writing or approving prescriptions that were not issued for a
legitimate medical purpose and were not in the usual course of his medical practice. After a jury
trial, Defendant was convicted of eight of the eleven counts against him, resulting in a 240-month
sentence. On appeal, Defendant argues 1) that the evidence presented at trial was insufficient to
support his conviction on six charges; 2) that his conviction on all counts should be overturned
because he was denied a fair trial; and 3) that his sentence should be vacated in light of the Supreme
*
The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
No. 02-6169
Court’s recent decision in United States v. Booker, 534 U.S. —, 125 S.Ct. 738 (2005) and because
the district court erred in calculating the amount of pills illegally prescribed by Defendant and in
enhancing Defendant’s sentence under § 3B1.3 of the Federal Sentencing Guidelines.
For the reasons set forth below, we AFFIRM Defendant’s conviction but VACATE his
sentence and REMAND for re-sentencing.
BACKGROUND
Procedural History
In June of 2001, a federal grand jury in the Eastern District of Kentucky returned an
indictment charging Defendant with eleven counts of unlawfully distributing controlled substances,
including Schedule II drugs Oxycontin and Tylox, by writing or approving prescriptions that were
not issued for a legitimate medical purpose and were not in the usual course of Defendant’s
professional practice as a urologist, in violation of 21 U.S.C. § 841(a)(1).
The indictment also included three firearms counts against Defendant for possession of
firearms after being convicted of a felony and domestic abuse, in violation of 18 U.S.C. § 922(g).
Following a two-week jury trial, Defendant was convicted of eight of the eleven drug charges
(Counts 1, 3, 4, 5, 8, 9, 10, 11) but was acquitted of all of the firearms charges and the remaining
three drug charges. Count 1 charged Defendant with knowingly distributing Schedule II, III, and
IV controlled substances by writing or approving prescriptions that were not in the usual course of
his professional practice. The remaining seven counts involved particular prescriptions issued by
Defendant to law enforcement officers working in an undercover capacity. Five counts involved
prescription of Oxycontin on December 1, 2000 (Count 4); January 29, 2001 (Count 11); January
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No. 02-6169
4, 2001 (Count 9); January 3, 2001 (Count 8); January 30, 2001 (Count 10). One count arose from
prescription for Tylox on November 1, 2000 (Count 3); and one count from a prescription for
Vicodin on December 13, 2000 (Count 5).
At sentencing, the district court accepted the probation officer’s findings that Defendant’s
sentencing range was between 235 to 293 months imprisonment based on an offense level of thirty-
six and a category III criminal history. The district court then sentenced Defendant to a concurrent
term of 240-months imprisonment on each of Counts 1, 4, 8, 9, 10 and 11 and a concurrent term of
60 months imprisonment on each of Counts 3 and 5. On September 4, 2002, Defendant filed a
timely notice of appeal with this Court, appealing his conviction and sentence.
Oral argument in this case was held on June 8, 2004. The Supreme Court issued its opinion
in Booker on January 12, 2005. Subsequently, Defendant moved for leave to file a supplemental
letter brief in light of Booker. We granted that motion, and both Defendant and the government have
filed supplemental letter briefs.
Facts
The facts are taken from the record developed before the district court.1 Defendant Ali Hadi
Sawaf is a medical doctor specializing in urology. He voluntarily left his practice of medicine at the
Daniel Boone Clinic in Harlan, Kentucky, in August 2000, to start his own practice in Harlan. When
Defendant first started out on his own, he borrowed an office to use on weekends from a physician
named Dr. Alan Freid (“Dr. Freid”). After only two weekends, Dr. Freid asked Defendant to leave
1
We note that Defendant’s brief to this Court did a very poor job of presenting the facts of
the case. Defendant devotes exactly a page and a half to the facts of the case and merely stated the
procedural and not the substantive facts of the case.
-3-
No. 02-6169
his office after Freid learned that his in-office pharmacy was “literally running out of controlled
substances” such as Oxycontin because Defendant was filling out prescriptions to patients on an
“unbelievable scale.” (J.A. at 625-26). According to Dr. Freid’s trial testimony, he drove by the
office one weekend and observed that “it was almost like a circus was in town or something. It was
unbelievable. People all over the place, milling about.” (J.A. at 626). Dr. Freid testified that when
he confronted Defendant about writing prescriptions for controlled substances, Defendant allegedly
told him “Well, I have the white coat.” (J.A. at 626).
Another physician, Dr. Richard Ocampo (“Dr. Ocampo”), agreed to share his office with
Defendant; Dr. Ocampo shared his office with Defendant from October 2000 to around the middle
of January 2001. Dr. Ocampo told Defendant that he could not accommodate his practice due to
the presence of numerous patients who came to see Defendant. After leaving Dr. Ocampo’s office,
Defendant set up shop in a mall office with very little medical equipment, but with a large number
of customers. Defendant was arrested on February 1, 2001, after law enforcement executed several
undercover operations that gave them probable cause to believe that Defendant prescribed or
approved of prescriptions for controlled substances that were not issued for a legitimate medical
purpose and were not in the usual course of his medical practice. Defendant’s patient files were
seized along with $17,620 in cash found at the office.
Trial testimony from pharmacists, Defendant’s employees, Defendant’s patients, law
enforcement officers, and medical experts revealed that Defendant issued a large number of
prescriptions for controlled substances during his practice from August 2000 to February 2001.
Harlan pharmacist Joe Myers (“Myers”) testified that after Defendant left the Daniel Boone Clinic,
-4-
No. 02-6169
his narcotics prescriptions became “more and more frequent, with more repetition out of patients”
and without explanation on the prescription form he filled out. (J.A. at 200-03). Myers testified that
he could not keep up his supply of controlled substances based on the large number of prescriptions
approved by Defendant. Another Harlan pharmacist named Jon McNiel (“McNiel”) testified that
he noticed patrons were coming in often with prescriptions for Oxycontin from Defendant. Because
they noticed numerous patrons returning to refill prescriptions, both Myers and McNiel stopped
filling prescriptions for controlled substances that came from Defendant. Similar testimony of over-
prescription came from Harlan pharmacists Brian Key and Todd Walters. James Nevils (“Nevils”),
a pharmacist from Harrogate, Tennessee, about forty-five minutes from Harlan, testified that
Defendant called and asked him to fill out prescriptions since Harlan pharmacists refused to fill
prescriptions approved by him. Nevils initially agreed to fill the prescriptions, but stopped filling
prescriptions from Defendant when “excessive amounts of people” came for “pretty potent
medication” prescribed by Defendant. (J.A. at 278). Harrogate pharmacy records show that the
pharmacy filled three of Defendant’s prescriptions in September of 2000, five in October of 2000,
twenty-two in November of 2000, and over 1000 prescription between December of 2000 and
January of 2001. Harrogate’s filled prescriptions for Schedule II drugs included: 5,870 Oxycontin
40-milligram pills; 3,600 20-milligram Oxycontin pills; 300 10-milligrams Oxycontin pills; 3,095
dosage units of Tylox; 570 dosage units of methadone; 1,010 dosage units of Roxicet; approximately
1,600 dosage units of Percocet; 195 dosage units of Percodan; and 60 dosage units of Seconal. Ed
Carlton, a pharmacist from a town near Harlan, testified that he stopped filling prescriptions from
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No. 02-6169
Defendant because “I didn’t feel that any one physician could humanly see that many patients and
put out that many and do it thoroughly and correctly in a single day.” (J.A. at 295).
In the fall of 2000, Kentucky’s Attorney General (“AG”) office began an investigation of
Defendant based on complaints from pharmacists that Defendant was over-prescribing Oxycontin.
Gregory Shay (“Shay”), an investigator with the AG office, visited Defendant in an undercover
capacity as part of the investigation. On October 16, 2000, Shay went to Defendant’s office and
complained that he had a fractured leg and was addicted to Tylox and “hurt all over.” (J.A. at 324).
Defendant diagnosed Shay with back pain and gave Shay a prescription for Vicodin and arranged
for a subsequent appointment a month later. On November 1, 2000, Shay came two weeks prior to
his mid-November appointment and after asking Shay about his “back pain,” which Shay never
complained of, Defendant gave Shay a prescription for Tylox. (J.A. at 328-29). This conduct was
the basis for the charge in Count 3 of the indictment. Shay returned to Defendant on December 1,
2000, without having the X-ray that Defendant requested he should get; nevertheless, Defendant
gave Shay a prescription for Oxycontin at Shay’s request and advised Shay that he should have the
prescription filled at the Harrogate pharmacy. This conduct was the basis for Count 4 in the
indictment. Shay again returned to Defendant on December 13, 2000, without any X-rays, yet
Defendant gave Shay a prescription for Vicodin. This conduct was the basis for Count 5.
Around the time that Defendant filled prescriptions he was on probation for a Michigan
conviction and was being supervised by Sharon Meachum (“Meachum”), a Kentucky probation
officer. Meachum testified at trial that Defendant informed her that she could visit his office any
time and that he would give her a prescription for any pills she desired. On December 21 and 22,
-6-
No. 02-6169
2000, Harlan police officer Shawn Bryant (“Bryant”) met with Defendant and told him of his great
need for prescription drugs for himself and his wife. On January 3, 2004, Defendant prescribed
Oxycontin for Bryant and his wife without any physical examination. This conduct was the basis
for Count 8 in the indictment. On January 4, 2001, Bryant visited Defendant to discuss problems
Bryant was having, and Defendant allegedly told Bryant that he would take care of him, if Bryant
takes care of him; Defendant also prescribed Oxycontin to Bryant without urging. This conduct was
the basis for Count 9 of the indictment. Detective Roger Hall (“Hall”) of the Harlan Sheriff’s office
visited Defendant and asked about the effects of Oxycontin, to which Defendant supposedly
responded: “My friend, it’s the best medicine. Let me write you some.” (J.A. at 544). Defendant
also recommended and prescribed Viagra for Hall which, along with Oxycontin, would prolong
feelings of euphoria. This conduct was the basis for Count 11 in the indictment. On January 30,
2003, Defendant was visited by James Vicini (“Vicini”), another Harlan Sheriff’s detective.
Defendant prescribed Viagra and Oxycontin to Vicini without examination. This conduct formed
the basis of Count 10.
At trial, Dr. Douglas Kennedy (“Dr. Kennedy”), an expert witness for the government,
examined 50 randomly-selected files of Defendant’s patients. Dr. Kennedy concluded that none of
the controlled substance prescriptions in the 50 files had a legitimate medical purpose or had been
issued in the usual course of professional medical practice. Dr. Kennedy testified that “[e]ach
patient received potent . . . medication for no apparent reason other than [a] subjective complaint.”
(J.A. at 1013). Several former employees of Defendant gave testimony that Defendant’s patients
increased exponentially, apparently after word got around that Defendant prescribed strong
-7-
No. 02-6169
medications; these employees further testified that Defendant invariably prescribed controlled
substances to these patients and rarely performed even routine medical check-ups before prescribing
the medications. Based on the foregoing, a jury convicted Defendant of several counts of
distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). Defendant now appeals his
conviction and sentence.
DISCUSSION
I. Whether the evidence was sufficient to support Defendant’s convictions on Counts 1,
3, 4, 5, 8, and 9.
Defendant contends that his convictions on Counts 1, 3, 4, 5, 8, and 9 should be overturned
on the basis that sufficient evidence to support them was not presented at trial. We review a
challenge to the sufficiency of the evidence to determine “‘whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
element of a crime beyond a reasonable doubt.’” United States v. Crayton, 357 F.3d 560, 573 (6th
Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); United States v. Clay, 346 F.3d
173, 176 (6th Cir. 2003). Further, “[w]hen reviewing a conviction on appeal, this Court resolves
all conflicts in the testimony in favor of the government and draws every reasonable inference in its
favor.” United States v. Doe, 226 F.3d 672, 680 (6th Cir. 2000).
Defendant claims the district court should have granted his motion of acquittal because the
government did not satisfy its burden of proof on Count 1 of the indictment and, in any event, he
was entitled to judgment as a matter of law because of entrapment. Count 1 of the indictment
charged Defendant with knowingly and intentionally distributing Schedule II, III, and IV controlled
substances by writing or approving prescriptions without legitimate medical purpose. Defendant
-8-
No. 02-6169
maintains that the evidence presented at trial was insufficient to find him guilty of Count 1. He
argues that the strongest trial testimony for the government came from Dr. Kennedy who relied on
only fifty randomly-selected files from Defendant’s patients to determine that Defendant wrote or
approved of prescriptions without a legitimate medical purpose. Defendant’s argument suffers from
a familiar weakness—the absence of any reference to case law to support his position.
In United States v. Leal, 75 F.3d 219 (6th Cir. 1996), the defendants, a pharmacist and a
physician, were convicted of multiple counts of distributing controlled substances in violation of 21
U.S.C. § 841(a)(1). See Leal, 75 F.3d at 221. Although no direct evidence was offered that
prescriptions by the physician, whom the government alleged conspired with the pharmacist to
distribute the controlled substances, were outside the scope of proper medical practice, a jury
convicted the defendants based in large part on testimony from expert witnesses. Id. at 222-23.
Similarly, in United States v. Veal, 23 F.3d 985 (6th Cir. 1991), circumstantial evidence from an
expert witness was critical to convicting a pharmacist of participating in a “pill-mill.” Veal, 23 F.3d
at 988; see also United States v. Wells, 211 F.3d 988, 997 (6th Cir. 200) (expert testimony was
critical circumstantial evidence used to convict the defendant).
In the instant case, Defendant argues that testimony at trial, including Dr. Kennedy’s expert
testimony, was insufficient to convict him of Count 1 in the indictment. Yet, just as expert
testimony was critical to the jury’s conviction in Wells, so too was Dr. Kennedy’s testimony, based
only on his review of fifty random patient files, critical to Defendant’s conviction in the instant case.
A reasonable trier of fact could conclude, based on Dr. Kennedy’s testimony, that Defendant wrote
or approved prescriptions without a legitimate medical purpose. In the instant case, additional
-9-
No. 02-6169
testimony came from Defendant’s former employees, who testified that Defendant did not always
conduct exams before issuing prescriptions and from pharmacists who testified to filling a deluge
of prescriptions for Defendant’s patients. Viewing this evidence in the light most favorable to the
government, as we must, we believe the evidence at trial was sufficient for a reasonable jury to
convict Defendant of knowingly and intentionally distributing Schedule II, III, and IV controlled
substances without a legitimate medical purpose.
Alternatively, Defendant argues that he should have been acquitted because he was entrapped
as a matter of law. Specifically, Defendant contends that the conduct that formed the basis of
Counts 3, 4, 5, 8, and 9 all involved false and misleading statements by law enforcement officers
working in an undercover capacity to entrap him by seeking prescriptions. In this Circuit,
entrapment is a valid legal defense to a crime only when a defendant sets forth evidence that (1) the
government induced the defendant to commit the crime and (2) the defendant was not predisposed
to commit the crime. See United States v. Khalil, 279 F.3d 358, 364 (6th cir. 2002); United States
v. Burns, 298 F.3d 523, 539 (6th Cir. 2002). In the instant case, Defendant asserts that law
enforcement officers came into his office complaining of pain and concerned about sexual
performance and he therefore prescribed Viagra, Oxycontin and Tylox to these patients without
knowing of their hidden agenda. This may be true, but in the instant case, the testimony at trial
revealed that it was routine practice for Defendant to prescribe controlled substances without
conducting medical exams. At the very minimum, the evidence shows that Defendant was
predisposed to prescribe controlled substances without conducting medical examinations. Thus,
even if the Defendant’s inducement argument were accepted, he cannot escape the predisposition
-10-
No. 02-6169
element. See United States v. Tuder, 28 F.3d 1420, 1429 (6th Cir. 1994). We therefore conclude that
there was sufficient evidence for a reasonable jury to convict Defendant on Counts 3, 4, 5, 8, and
9 and that Defendant has not made a showing that he was entrapped by law enforcement officials.
II. Whether Defendant’s due process rights were violated.
Defendant’s second argument is that his due process rights were violated, by two events at
trial and sentencing. First, Defendant argues that the government committed deception by arguing
at the close of trial that at sentencing it would not ask the court to hold Defendant responsible for
all of the prescriptions from January of 2000 to February of 2001. Our review of the record,
however, reveals that the government did “reserve the right” to make arguments regarding the pill
count at sentencing and did state that the specificity of such pill count would be determined at
sentencing. Therefore, Defendant’s contention that the government deceived the court and himself
is without substance.
More importantly, however, Defendant argues that the district court erred in permitting the
government to cross-examine defense witnesses using information learned from the Kentucky All
Schedule Prescription and Electronic Reporting System (“KASPER”).2 Aside from stating that the
information gave the government an unfair advantage and that timely objections were filed to
prohibit introduction of the reports, Defendant does not present any argument as to why the reports
should not have been introduced at trial.
2
KASPER reports provide, among other things, a listing of controlled substances dispensed
to persons in Kentucky, and although KASPER information is not public, such information may be
obtained by any person pursuant to a court order or by court officers pursuant to a “bona fide
specific investigation.” See KY. REV. STAT. ANN. § 218A.202 (Banks-Baldwin 2004).
-11-
No. 02-6169
A district court’s evidentiary rulings are reviewed on appeal under an abuse of discretion
standard. See United States v. Chance, 306 F.3d 356, 385 (6th Cir. 2002); United States v.
Middleton, 246 F.3d 825, 837 (6th Cir. 2001). It is settled that a district court abuses its discretion
“when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses
an erroneous legal standard.” United States v. Spikes, 158 F.3d 913, 927 (6th Cir. 1998) (citations
omitted).
In the instant case, the district court made a specific legal finding that the reports were
obtained pursuant to a “legitimate” investigation and further found that, pursuant to the statute, “no
attempt [has] been made to enter any of this information into record.” (J.A. at 1330-31). On these
facts, it cannot be said that the district court abused its discretion in allowing the government to
cross-examine defense witnesses based on the reports. Defendant’s argument that all his convictions
should be overturned because he was denied a fair trial is therefore without merit.
III. Whether the district court properly sentenced Defendant.
A. Defendant’s sentence is vacated and remanded under Booker.
As noted above, in a letter brief filed with this Court after the Supreme Court’s
announcement of its opinion in United States v. Booker, 534 U.S. —, 125 S.Ct. 738 (2005),
Defendant asserted for the first time that the district court’s determination of the relevant pill count
in this case violated his rights under the Sixth Amendment. In its letter brief on the issue, the
government agreed with Sawaf.3
3
The government also asserted in its letter brief that the district court’s application of a
sentencing enhancement in this case for abuse of a position of trust by use of a special skill, in
violation of §3B1.3 of the Sentencing Guidelines, was similarly a violation of Defendant’s Sixth
-12-
No. 02-6169
We agree with the parties that because the district court sentenced Defendant pursuant to the
then-mandatory Federal Sentencing Guidelines, and because the number of pills attributed to
Defendant was not admitted by him or determined by a jury beyond a reasonable doubt but rather
was determined by the district court, his Sixth Amendment rights were violated. We therefore will
vacate his sentence and remand to the district court for re-sentencing. See United States v. Oliver,
397 F.3d 369, 377-82 (6th Cir. 2005).
B. Defendant’s other sentencing claims
Although Booker excised that part of the Guidelines which made them mandatory,
sentencing courts must continue to take into consideration the recommended Guidelines sentence.
Booker, 125 S.Ct. at 764. This Court will continue to provide guidance as to the proper
interpretation of any Guidelines provisions whose application is challenged on appeal, and we do
so now with respect to Defendant’s remaining sentencing claims. See United States v. McDaniel,
398 F.3d 540, 551 (6th Cir. 2005)
In addition to his Booker claim, Defendant challenges his sentence of 240-months
imprisonment on essentially two grounds. First, he contends that the district court acted arbitrarily
and capriciously and erred in determining the pill count which supported the offense level used for
sentencing. Second, Defendant argues that the two-level enhancement imposed for abuse of trust
Amendment rights. Because we are vacating Defendant’s sentence and remanding for resentencing
on the ground that the calculation of the pill count was Booker error, we need not determine either
a) whether the government is correct that this sentencing enhancement violated Defendant’s Sixth
Amendment rights or b) whether we could reach a Booker error that has never been raised by a
defendant but has been asserted by the government.
-13-
No. 02-6169
and use of special skill violated Defendant’s double jeopardy protections. We will discuss each of
this arguments in turn.
1. Whether the district court erred in determining the pill count for purposes of
calculating Defendant’s offense level.
Defendant asserts that the district court uncritically accepted the probation officer’s
recommendation that Defendant’s base offense level was 34 based on Defendant’s issuance of, or
approval of, prescriptions for 87,760 pills. We agree that the district court might have more clearly
identified the basis of its factual findings, and encourage the district court to do on remand.
However, we note that the district court stated in the judgment that it was not considering any pills
counted on the charges for which Defendant was acquitted, and additionally would only consider
those pills that were filled after November 1, 20004 and only Schedule II narcotics. This approach
is consistent with the addendum to the pre-sentence report, which makes it clear that the
prescriptions for Schedule II narcotics filled from December 2000 to February 2001 result in a
quantity well in excess of the number of pills required for a base offense level of thirty-four.
As to the district court’s finding that the probation officer correctly determined Defendant’s
base sentence, Defendant suggests that the government manipulated the sentencing guideline by
using Count 1 as the “umbrella charge” to “create the massive offense level of 34.” (Defendant’s
Br. at 11). However, the district court adopted the probation officer’s recommendation in the pre-
sentence report, which calculated Defendant’s base offense by relying solely on the counts on which
4
Defendant now contends that the trial court “arbitrarily and capriciously” set the date at
November 1, 2000. Def. Brief at 10. However, at sentencing, Defendant specifically argued that
prescriptions filled before September 2000 should not be counted because evidence at trial did not
support a finding that there were problems with those prescriptions.
-14-
No. 02-6169
Defendant was convicted. After sustaining several of Defendant’s objections to the pre-sentence
report, the district court found that Defendant’s sentence guideline range remained 235 to 293
months for the offenses of conviction. Defendant argues that if the pill count on the charges on
which he was convicted was the sole basis for his base offense level, then his base offense level
would have been 14, not 34. We find this argument unpersuasive in light of the trial testimony from
pharmacists who filled Defendant’s prescriptions and the detailed application of the sentencing
guidelines by the probation officer for each of the counts for which Defendant was convicted.5
Regardless, Defendant reiterates the same argument that the district court’s findings were arbitrary
and capricious, but does not point to specific factual or legal support for his argument that the
calculation of his base offense level was error. In our view, Defendant’s claim of error in this regard
is without merit.
2. Whether the district court erred in enhancing Defendant’s sentence under §
3B1.3.
Defendant contends that the district court improperly enhanced Defendant’s sentence under
§ 3B1.3 of the Sentencing Guidelines for abusing his position of trust by using his special skill.
Section 3B1.3 of the Sentencing Guidelines provide for an upward adjustment of a defendant’s
sentence as follows:
If the defendant abused a position of public or private trust, or used a special skill,
in a manner that significantly facilitated the commission or concealment of the
5
The probation officer determined Defendant’s base offense level by first recognizing that
Defendant’s criminal activity “was distribution of Schedule II, III, and IV controlled substances with
a marijuana equivalency of 8683.38 KGS. The offense level specified in the Drug Quantity Table
under U.S.S.G. § 2D1.1(c)(3), for at least 3,000 KG but less than 10,000 KG of marijuana, sets a
base level of 34.” (J.A. at 2029).
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No. 02-6169
offense, increase by two levels. This adjustment may not be employed if an abuse
of trust or skill is included in the base offense level or specific offense characteristic.
If this adjustment is based upon an abuse of a position of trust, it may be employed
in addition to an adjustment under § 3B1.1 (Aggravating Role); if this adjustment is
based solely on the use of a special skill, it may not be employed in addition to an
adjustment under § 3B1.1 (Aggravating Role).
U.S.S.G. § 3B1.1.
The district court found that Defendant abused both his position of trust and his special skill
and enhanced his sentence under § 3B1.3. Defendant argues that the district court erroneously
enhanced his sentence because “an abuse of trust or skill is included in the base offense level or
specific offense characteristic.” U.S.S.G. § 3B1.3. That is, Defendant argues that the counts on
which he was convicted required that he be a licensed medical doctor as a prerequisite for
conviction, and therefore an abuse of trust or skill was already included in the calculation of
Defendant’s base offense level and was a specific offense characteristic of the charges on which he
was found guilty. Defendant is mistaken about the proper application of § 3B1.3. The sentencing
guidelines define a “special skill” as “a skill not possessed by members of the general public and
usually requiring substantial education, training, or licensing.” U.S.S.G. § 3B1.3 cmt. 2.
Defendant cited no case in his briefs to this Court to support his view on this issue, although
we have previously addressed precisely this issue. In United States v. Johnson, 71 F.3d 539 (6th Cir.
1995), we determined that § 2D1.1, the underlying guideline in both Johnson and the instant case,
“does not consider whether the offense was committed by a doctor or anyone else. Thus,
defendant’s use of a special skill was not taken into account by § 2D1.1 and should be considered
by the District Court, through application of guideline § 3B1.3.” Johnson, 71 F.3d 539 at 544.
Johnson further explained “[a]nyone can be found guilty of violating 21 U.S.C. § 841(a)(1) by
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No. 02-6169
distributing pharmaceuticals. Doctors are merely exempt from this section when they dispense or
prescribe controlled substances in the regular course of professional practice.” Id. (citing United
States v. Moore, 423 U.S. 122, 131 (1975)). The district court’s enhancement of Defendant’s
sentence under § 3B1.3 was therefore entirely appropriate.
CONCLUSION
For the foregoing reasons, we AFFIRM Defendant’s conviction, but VACATE his sentence
and remand for resentencing.
-17-
|
543 U.S. 1161
WUBKERv.CAIN, WARDEN.
No. 04-7643.
Supreme Court of United States.
February 22, 2005.
1
C. A. 5th Cir. Certiorari denied.
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16 F.3d 422NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
HOTEL SYSTEMS INC., Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee.
No. 93-5130.
United States Court of Appeals, Federal Circuit.
Dec. 21, 1993.
Before ARCHER, Circuit Judge, COWEN, Senior Circuit Judge, and MAYER, Circuit Judge.
ARCHER, Circuit Judge.
1
Hotel Systems, Inc. appeals from the summary judgment of the United States Court of Federal Claims, No. 90-361C (filed March 2, 1993). The court held in favor of the United States on Hotel Systems' claims for breach of contract, tortious breach of contract, misrepresentation in the inducement, breach of an implied covenant of good faith and fair dealing, and breach of a duty to disclose superior knowledge, and Hotel Systems' claim that the United States is equitably estopped to cancel its contracts with Hotel Systems. We affirm the judgment on the basis of the trial court's opinion.
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530 A.2d 674 (1987)
UNITED PLANNING ORGANIZATION, Petitioner,
v.
DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent.
No. 86-844.
District of Columbia Court of Appeals.
Argued June 4, 1987.
Decided August 19, 1987.
Lawrence E. Williams, Jr., Washington, D.C., for petitioner.
Victor E. Long, Asst. Corp. Counsel, with whom James R. Murphy, Acting Corp. Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.
Before: PRYOR, Chief Judge, and MACK and BELSON, Associate Judges.
PRYOR, Chief Judge:
Petitioner, United Planning Organization (UPO), seeks review of a decision and order of the District of Columbia Commission on Human Rights (the Commission) in which the Commission found that UPO had discriminated on the basis of sex against one of its employees, Gloria J. Briscoe, thereby violating the D.C. Human Rights Act of 1977. D.C. Code §§ 1-2501 et seq. Our reading of the record convinces us that the Commission's finding of discriminatory intent and its conclusion that UPO violated the D.C. Human Rights Act are supported by substantial evidence and in accord with relevant law in this jurisdiction. Accordingly, we affirm.
*675 I
On June 2, 1977, Ms. Briscoe was one of forty-three applicants for the vacant position of budget analyst at UPO. Four of the applicants, including Ms. Briscoe, were already employed by UPO at the time they applied for the position. The interrelations among these four internal or "in-house" candidatesJohnny Holloman, Gloria Briscoe, Florence Klink, and Arthur Grayand the UPO employee in charge of the hiring process, William Isaac, head of UPO's Financial Division, are noteworthy. Mr. Isaac directly supervised both Mr. Holloman and Ms. Klink, while Ms. Klink was the direct supervisor of Ms. Briscoe. Mr. Gray's supervisor, Winona Gee, had no input in the employment decision-making at issue here. The posted qualifications for the position were a degree in business administration or accounting, plus two years of experience in budgetary or accounting work or three years of college-level study in business administration or accounting, plus three years of experience in budgetary or accounting work.
Gloria J. Briscoe was hired by UPO on March 10, 1966. During the time before she was turned down for the budget analyst position, Ms. Briscoe held the positions of clerk-typist (March 1966-December 1967), junior contract auditor (December 1967-November 1968), and voucher auditor (December 1968-September 1977). Ms. Briscoe's performance ratings were excellent in five categories, good in fifteen categories, and average for attendance and punctuality. She had earned an A.A. degree from Washington Technical Institute in 1975, and had completed three years of course work toward a B.A. degree in business administration at the University of the District of Columbia; this degree was awarded to Ms. Briscoe in May 1978. Ms. Briscoe was recommended by her supervisor for a Superior Performance Award in 1978 for her work in 1977. The recommendation was never acted upon because the documentation was lost. Ms. Briscoe did testify that she had no direct budgetary experience.
Johnny Holloman initially was hired by UPO in November 1965. From 1965 until 1971, he held the positions of clerk-typist, payroll clerk, financial clerk-typist; from April 1971 to October 1974, he held the position of junior reports specialist; and finally, from October 1974 until his selection for the budget analyst position, he was a senior contracts auditor. Mr. Holloman's performance ratings were excellent in twelve categories. By June 1977, Mr. Holloman had an A.A. degree in accounting from the Washington Technical Institute and had completed forty-three credits of course work toward a B.S. degree in accounting from the University of the District of Columbia. The degree was awarded in 1978. In addition, Mr. Holloman was awarded the Superior Performance Award by the Incentive Awards Committee.
Of particular significance, the evidence reveals that the UPO employee who would supervise the new budget analyst, Mr. Francis Odu-Thomas, remarked on at least three occasions that he preferred to hire no more women in the Budget Section because women with children find it difficult to work overtime. Ms. Briscoe and her supervisor, Ms. Florence Klink, who also was under consideration for the new vacancy, informed Isaac of Mr. Odu-Thomas' remarks prior to Isaac's selection of Mr. Holloman. Although Mr. Odu-Thomas had little formal input in the decision-making process, the evidence is clear that a factor Isaac took into consideration before choosing Mr. Holloman was the ability of each candidate to get along with the supervisor of the budget analyst position, Mr. Odu-Thomas. Mr. Isaac testified that as between Holloman and Briscoe, Holloman would get along better with Odu-Thomas.
Following a process of interviewing, evaluating, and ranking of the candidates, UPO selected Mr. Holloman for the position of budget analyst. Mr. Holloman's promotion and resultant salary increase were made retroactive to March 1977. When Ms. Briscoe was informed that she had not been chosen for promotion, she was invited to apply for the position of senior contract auditor, the position vacated by Johnny Holloman. After initially *676 refusing the invitation, she did apply and received a promotion to that position effective September 19, 1977.
Gloria Briscoe filed a sex discrimination complaint with the Commission against her employer, UPO, after she was passed over for a promotion to the position of budget analyst. The action was commenced on December 2, 1977 and, on June 6, 1978, the Commission found probable cause to initially sustain her complaint. Hearings began on June 10, 1981 and were concluded on July 7, 1981; the hearing examiner did not issue its proposed decision, finding that UPO had practiced unlawful sex discrimination, however, until January 11, 1985.[1] UPO filed exceptions to the proposed findings, and on October 22, 1985, the Commission issued a final decision in which it found that UPO had indeed established legitimate, nondiscriminatory reasons for promoting Mr. Holloman. Ms. Briscoe filed a Motion for Reconsideration of the Final Decision and UPO filed an opposition thereto. On March 28, 1986, the Commission reversed itself, vacating its October 22, 1985 Final Decision and reinstating the January 11, 1985 Proposed Decision.
II
The standard of review we are to employ in this type of case is well established. "This court must accept the decision of the Commission if it is supported by substantial evidence and is in accordance with relevant law. D.C. Code § 1-1510(a)(3)(E); `Substantial evidence is "more than a mere scintilla." It means such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.' If the Commission's decision is supported by substantial evidence and is in accordance with applicable law, the decision must be affirmed, even if this court would have reached a different decision on the same record." Atlantic Richfield Co. v. District of Columbia Commission on Human Rights, 515 A.2d 1095, 1098 (D.C.1986) (citations omitted) (discrimination on basis of personal appearance). Further, we note that the Supreme Court has stated clearly that discriminatory motivation, although the ultimate issue in a discrimination case, is still a question of fact. Pullman-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982). See Bishopp v. District of Columbia, 252 U.S. App. D.C. 156, 788 F.2d 781 (1986).
This court generally follows the analysis associated with Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1982) in discrimination cases brought under the D.C. Human Rights Act.[2]See RAP Inc. v. District of Columbia Commission on Human Rights, 485 A.2d 173, 176 (D.C. 1984) (discrimination on the basis of sex). In assessing the soundness of the Commission's decision, we must analyze the case from the perspective of the now familiar three-step model for allocation of the burdens of proof between the parties. Id. First, although
[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff....
*677 The employee bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination.
Atlantic Richfield, supra, 515 A.2d at 1099 (citations omitted). The plaintiff's prima facie case creates a rebuttable presumption of unlawful discrimination, thereby shifting the burden of production to the employer. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To rebut the presumption, the employer must articulate "some legitimate, nondiscriminatory reason for the employment action at issue." Atlantic Richfield, supra, 515 A.2d at 1099. The employer is not required to establish its actual motivation in taking the action it did; rather, it is enough for the employer to produce "admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, supra, 450 U.S. at 257, 101 S.Ct. at 1096; Atlantic Richfield, supra, 515 A.2d at 1100. Finally, once the employer produces such evidence, the employee must be afforded a "fair opportunity to prove by a preponderance of the evidence that the employer's stated reason for its action was not its true reason but was in fact merely a pretext for discrimination." Atlantic Richfield, supra, 515 A.2d at 1100; RAP, Inc., supra, 485 A.2d at 176; Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095. The employee may meet this burden in either of two ways: by persuading the trier of fact through direct evidence that "a discriminatory reason more likely motivated the employer" or "indirectly by showing that the employer's proffered explanation is unworthy of credence." Atlantic Richfield, supra, 515 A.2d at 1100; and RAP, Inc., supra, 485 A.2d at 176-77. "[R]eliance upon some indirect or circumstantial evidence is plainly permissible," and when the plaintiff "successfully makes out a prima facie case and discredits the defendants' purported explanation, she has carried her ultimate burden." King v. Palmer, 250 U.S. App. D.C. 257, 258, 778 F.2d 878, 879, reh'g denied (1985).
III
The Commission held that Ms. Briscoe had established a prima facie case of discrimination,[3] that UPO had articulated a legitimate, nondiscriminatory reason for its decision not to promote Ms. Briscoe to the position of budget analyst, but that Ms. Briscoe had shown her employer's proffered reason for its employment decision was pretextual.
It is here uncontested that a prima facie case of discrimination was established. Rather, UPO advances three arguments. First, UPO asserts that the Commission's finding that Mr. Holloman and Ms. Briscoe were comparably qualified is not supported by substantial evidence. Second, UPO claims that it not only articulated but also established by the overwhelming weight of the evidence that it had a legitimate, nondiscriminatory reason for promoting Mr. Holloman. Finally, UPO argues that the Commission's finding of pretext is arbitrary and not supported by substantial evidence. In a separate but inextricably related claim, UPO argues that the Commission misconstrued the employer's second-step burden of production as articulated in RAP, Inc., supra, by concluding from its finding of comparable qualifications that UPO's decision not to promote Ms. Briscoe was pretextual. We treat each issue in turn.
Our review of the record in this case convinces us that the Commission's factual finding of comparable qualifications is supported by substantial evidence. Both Mr. Holloman and Ms. Briscoe had been employed for approximately eleven years; both held A.A. degrees from the same institution; both would complete bachelor's degrees within the same time frame, again from the same institution; while each had *678 different specific work experience, both had been exposed to the accounting and budgetary practices of the office for a number of years. The testimony of Mr. Isaac and Ms. Klink regarding the relative qualifications of each of the candidates was in conflict, and the hearing examiner chose to credit Ms. Klink. We see no reason to overturn the Commission's credibility determination.[4]
UPO asserts that it both articulated and established a legitimate, nondiscriminatory reason for promoting Mr. Holloman rather than Ms. Briscoe to the position of budget analyst. We find that in making this argument, UPO has conflated the second and third levels of analysis required when applying the model for examination of discrimination cases. The second step of the analytic model enables the employer to articulatenot provethat it took the action it did for a legitimate nondiscriminatory reason. Once such a reason has been stated, the burden shifts back to the complainant, creating for her an opportunity to discredit the employer's proffered explanation or establish that the explanation is a pretext for actual discrimination. It is conceptually premature at the second stage of this orderly march of proof to establish lack of discriminatory intent. Accordingly, we treat this aspect of UPO's argument as equivalent to its third argumentthat the record lacks substantial evidence for the Commission's finding of pretext.
We agree that UPO met its burden of production by articulating that it promoted Mr. Holloman but not Ms. Briscoe to the position of budget analyst because it determined that Mr. Holloman was more qualified for the position. The record before us reveals that UPO's stated reason for hiring Holloman over Briscoe was based on a comparison of the two applicants with respect to a five-point assessment model. The model itself is not challenged. Using the model, Mr. Isaac ranked the candidates according to education, seniority, ability to apply knowledge and comprehension, knowledge of budget analyst responsibility, and ability to complete work. Mr. Isaac ranked the four "in-house" candidates for the position in the following order of preference: Holloman, Klink, Gray, and Briscoe. According to Mr. Isaac, he determined that Holloman had six years of budget experience and Briscoe had no budget experience; Holloman worked independently and quickly, but Briscoe did not; Holloman completed his work during regular business hours, but Briscoe did not; Holloman did not have a history of tardiness or absenteeism, while Briscoe did. Regardless of whether any of these determinations were true, they did amount to an adequate statement of a legitimate nondiscriminatory reason for promoting Mr. Holloman.
The crux of the matter, then, lies in the Commission's finding that UPO's stated reason for failing to promote Ms. Briscoe amounted to a pretext for discrimination against her because of her gender. Contrary to UPO's assertion that the Commission's finding of pretext arises directly from its finding that the two candidates were comparably qualified, we hold that such is not the case. There is to be sure some language in the Commission's final decision suggesting that the decision rests, in part, on its determination that the complainant and the successful job applicant exhibited comparable qualifications.[5] As noted by the Commission, however:
*679 The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination.
Burdine, supra, 450 U.S. at 259, 101 S.Ct. at 1097 (citations omitted).
Therefore, while the Commission's finding that both applicants were comparably qualified may not, without more, serve to undercut the credibility of the employer's determination that the applicants were not comparable, it is probative evidence on the issue of pretext. Id.: see also RAP, Inc., supra. The Commission may not use its own determination of the relative qualifications of the applicants as the direct and only basis for its determination that UPO's refusal to promote Ms. Briscoe was pretextual. Id. at 179 n. 5. So long as UPO's determination that Mr. Holloman was better qualified was a reasonable view of the facts, it will suffice to meet the employer's second-step burden of production. In other words, demonstrating discriminatory intent and pretext requires more than merely showing that the employer was mistaken.
We note, however, that the Commission's decision extended beyond this observation and squarely rests on other evidence of discriminatory intent. The Commission asserted that it "does not second guess the respondent's judgment of the candidate's qualifications, but rather concludes that the selection decision was based on improper considerations that did not include such a judgment of qualifications.... The complainant... succeeded in introducing evidence sufficient to persuade the Commission that the respondent's explanation was a pretext, and that the evidence offered by the respondent was unworthy of credence and therefore incapable of raising a genuine issue of fact." Ruling, supra, at 4.
We find, therefore, that Ms. Briscoe presented evidence to the Commission tending to discredit UPO's explanation for its employment decision and, thereby established that UPO's decision was pretextual. In affirming the hearing examiner's January 11, 1985 Proposed Decision and Order, the Commission found that Mr. Isaac's testimony was both internally inconsistent and inconsistent with the testimony of other witnesses, and as a result, Mr. Isaac's credibility was called into question. The hearing examiner also noted that there was "evidence of a predisposition on the respondent's part to discriminate against members of her protected class." Proposed Decision and Order, at 17, January 11, 1985. The Commission affirmed the hearing examiner's basis for such predisposition: The supervisor of the vacant position, Mr. Odu-Thomas, made repeated statements to the effect that he preferred that the position be filled by a male applicant; Mr. Isaac was aware of these remarks, and admitted that getting along with Mr. Odu-Thomas was a relevant consideration in arriving at his decision to promote Mr. Holloman; the Commission found Isaac may have allowed the remarks to influence his selection; Briscoe suffered adverse treatment not suffered by male employees; and Briscoe was passed over for incentive awards she deserved; Briscoe was subjected to a written warning that alleged omissions and commissions, but other than the testimony of Isaac, whose credibility on other issues is questionable, no evidence was adduced by the respondent to support the charges. The Commission then concluded "that the respondent's proffered explanation for the denial of promotion to the complainant is unworthy of credence, and that a discriminatory reason based on the complainant's sex more likely motivated the respondent." Id. at 19.
*680 "Burdine makes it absolutely clear that a plaintiff who establishes a prima facie case of intentional discrimination and who discredits the defendants' rebuttal should prevail, even if he or she has offered no direct evidence of discrimination." King v. Palmer, supra, 250 U.S. App.D.C. at 260, 778 F.2d at 881. It is equally clear that a finding of discriminatory intent will not be discounted unless not supported by substantial evidence. Bishopp v. District of Columbia, supra, 252 U.S. App. D.C. at 160, 788 F.2d at 785-86. Because substantial evidence in the record supports the Commission's finding, we hold that Ms. Briscoe did meet her burden of persuasion by demonstrating that UPO's proffered reason was not the true reason for the employment decision.
Affirmed.
NOTES
[1] We note that more than seven years passed between the initial filing of the complaint and the filing of the proposed decision. As we have noted before and reiterate today, such delays are unreasonable and deserving of harsh criticism; a party's right to fair adjudication is seriously jeopardized by procedures that drag out interminably, dimming memories and dampening spirits. Wisconsin Avenue Nursing Home v. District of Columbia Commission on Human Rights, 527 A.2d 282 (D.C.1987); Stevens Chevrolet, Inc. v. Commission on Human Rights, 498 A.2d 546 (D.C.1985).
[2] D.C. Code § 1-2512(a)(1) (1981) prohibits employment discrimination against persons in certain protected classes including women. The applicable provision states in part:
(a) GeneralIt shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, matriculation, or political affiliation, of any individual:
(1) To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion....
[3] To set out a prima facie case of discrimination, the complainant must prove four elements: (1) that she was a member of a protected class; (2) that she applied for a job for which she was qualified; (3) that she was rejected in favor of another applicant; and (4) that a substantial factor in the employment decision was her membership in the protected class. See, e.g., King v. Palmer, supra, 250 U.S.App.D.C. at 259, 778 F.2d at 880.
[4] At oral argument, petitioner makes an even more ambitious claim, and suggests that we could analytically sidestep the credibility issue by disregarding all of Mr. Isaac's testimony. If we were to do so, petitioner claims, the remaining evidence would compel a finding that Holloman was more qualified than Briscoe for the budget analyst position. We note that such analytical surgery amounts to a gross disturbance of the integrity of the record, a record we are to consider in its totality. We further note that petitioner's suggestion is futilewithout Mr. Isaac's testimony, Ms. Klink's testimony rises to a position of uncontested credibility, and the Commission's finding of comparable qualifications of the candidates stands on even firmer ground.
[5] The Commission noted it was persuaded "that the hearing examiner's credibility determinations are valid and dispositive of the credible worthiness [sic] of the respondent's proffered explanation for the denial of promotion." Ruling on Motion for Reconsideration of Final Decision and Order, at 3, March 28, 1986. Further, the Commission noted that it "interprets the apparent equality of qualifications as a fact tending to rebut the respondent's contention that the qualifications were unequal. The alleged superiority of the selectee's qualifications was the only reason articulated by the respondent for the complainant's non-selection. In the absence of any other legitimate nondiscriminatory explanation, the Commission is persuaded that the evidence of other circumstances tending to raise the inference of discrimination is sufficient to sustain the complainant's ultimate burden of proof." Id. at 4.
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459 So.2d 693 (1984)
Delmas H. BOSARGE, Jr.
v.
NEW ORLEANS STREET DEPARTMENT.
No. CA-1806.
Court of Appeal of Louisiana, Fourth Circuit.
November 14, 1984.
George R. Simno, III, Gertler & Gertler, New Orleans, for plaintiff-appellee (Delmas H. Bosarge, Jr.).
Salvador Anzelmo, City Atty., Douglas P. Wilson, Chief Deputy City Atty., Bernette J. Johnson, Deputy City Atty., New Orleans, for defendant-appellant (Department of Streets, City of New Orleans).
Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
KLEES, Judge.
The Department of Streets appeals the decision of the Civil Service Commission reinstating Delmas H. Bosarge, Jr. to his position of Traffic Engineer II in the Department with back pay subject to a suspension of 120 days. Bosarge appeals that part of the decision of the Commission to suspend him for 120 days for misuse of a city vehicle and other minor violations. We affirm the decision of the Civil Service Commission.
*694 FACTS
Delmas H. Bosarge, Jr. was employed by the Department of Streets, City of New Orleans, as a Traffic Engineer II. On December 15, 1982, he was dismissed from the Department for violation of departmental policies involving the use of a city vehicle and other minor infractions between May, 1982 and December, 1982.
In addition to being a Traffic Engineer II for the Department of Streets, City of New Orleans, Bosarge was a co-owner with his wife, of a corporation that operated a school in Jefferson Parish named "Academy de Chateau". In response to an anonymous letter stating that Bosarge was misusing the city vehicle, Agent Robert Mehrtens of the Office of Municipal Investigations (O.M.I.) conducted an investigation into the allegations contained in the letter. Agent Mehrtens drove to the Academy de Chateau, which was named in the letter, on May 11, 1982, and observed the city vehicle parked at the school. On that day, Bosarge was observed by Agent Mehrtens driving two children from the school to their home in the Lakeview area of New Orleans in the city vehicle.
In December, 1982, Agent Mehrtens observed the vehicle parked at the school on three separate occasions. He reported these observations to Joseph Womble, Ray Kaufman and Harold Gorman, Bosarge's superiors, on December 15, 1982. At that time, he requested an interview with Bosarge. During the course of the interview, Bosarge's superiors met and composed a letter of termination. Bosarge was given the letter of termination.
There can be no question that conduct which impairs the orderly operation of a public service in which an employee is engaged can be grounds for disciplinary action, such as dismissal. Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir. 1980), writ denied 399 So.2d 602 (La. 1981). Dent v. Department of Corrections, 413 So.2d 920 (La.App. 1st Cir.1982).
While "sufficient cause" is the key for disciplinary action, the jurisprudence indicates that the conduct of employees of a department is a crucial factor in maintaining an office that can properly serve the public. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (La.1962); Dent v. Department of Corrections, supra. For this reason, a supervisor is given much latitude in exercising control of the employees over whom he has jurisdiction. Sanders v. Department of Health and Human Resources, supra.
The Court in Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4th Cir.1978), said:
"The superintendent of police is charged with the operation of his department, and the Civil Service Commission is not his supervisor. The superintendent is the one who must run his department and exercise discretion in relation to disciplining his officers, and the Commission is not charged with exercising that discretion."
Nonetheless, Branighan, supra, also held that:
"... [t]he Civil Service Commission's authority `to hear and decide' disciplinary cases, Const. art. 10 § 12, includes authority to modify (reduce) as well as to reverse or affirm a penalty."
The scope of appellate review in these matters was established in Canter v. Koehring Co., 283 So.2d 716 (La.1973) and elaborated on in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978):
"... appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be further determination that the record established that the finding is not clearly wrong (manifestly erroneous)."
Although this is the general rule of appellate review regarding rulings of the Civil Service Commission, in Merchant v. Department of Finance, 391 So.2d 587 (La. App. 4th Cir.1980), the court held that the usual guidelines for appellate review, i.e., the manifest error rule, are not applicable *695 where the evidence was taken before a hearing examiner and the record thus compiled was filed with the Commission without comment or recommendation. The court explained its reasoning as follows:
"The great weight accorded conclusions and determinations made by the trier of fact under Canter and Arceneaux is based on the advantage derived from personal observation of the witnesses, their demeanor on the stand, and the manner in which they responded to examination. Here, the Commission enjoyed no such advantage. Under these circumstances the standard of review by an appellate court is not unlike that of judicial review in other administrative matters, that is, whether the conclusion reached by the Commission is arbitrary or capricious or manifestly wrong."
The holding in Merchant was followed in McGee v. Sewerage and Water Board of New Orleans, 396 So.2d 430 (La.App. 4th Cir.1981). In both cases the court made an independent review of the record to determine whether the conclusion reached by the Commission was arbitrary or capricious or manifestly wrong. The procedure followed in Merchant and McGee was also used in the instant case, thus the standard pronounced in those cases should apply.
Our review of the Civil Service Commission's hearing revealed the following facts: O.M.I. Agent Robert Mehrtens, as the Appointing Authority's first witness, testified that pursuant to an anonymous letter complaining that Bosarge was using a city vehicle for other than City business, he conducted an investigation on May 11, 1982, by driving out to the Academy de Chateau. He observed a city vehicle parked in front of the school. Then he saw a man and two children get into the car which he followed to the children's home in Lakeview. Photographs were taken at the time and he subsequently identified Bosarge as the driver and the children as William and Robert Long.
Since other pressing business prevented further surveillance, the investigation was delayed until December, 1982, when Agent Mehrtens conducted three separate surveillances wherein he observed the car at the school. On two of the three occasions, he saw Bosarge drive to a nearby K-Mart and return to the school where he did some menial chores, i.e., picking up litter and getting the mail. On December 15, 1982, Agent Mehrtens reported his suspicions to Joseph Womble, Ray Kaufman and Harold Gorman of the Department of Streets. Bosarge was called into Kaufman's Office and told that Agent Mehrtens wanted to interview him.
Bosarge went to Agent Mehrtens' office and pursuant to La.R.S. 33:2426, was interviewed from 11:10 a.m. to 12:24 p.m. concerning his activities. After the interview, Agent Mehrtens left the office and returned about ten minutes later with a sealed envelope which he handed to Bosarge. Bosarge read the letter and told Agent Mehrtens he had been terminated from his position with the Department of Streets.
In connection with the investigation, Agent Mehrtens interviewed the parents of the two children. William Long testified before the hearing examiner that Agent Mehrtens interviewed him in July or August, 1982, although Agent Mehrtens testified it was in December. He testified that the children were brought home in the afternoon by Bosarge in the city vehicle since he was home to greet the children every day. Occasionally, another man would bring the children home. He said he paid fifty dollars a month for morning and afternoon transportation. Although the only proof of payment were two checks with notations on them for registration and tuition for the children. There were several inconsistencies between testimony before the commission and the statement given by Long to Agent Mehrtens.
Joseph Womble, City Traffic Engineer for the Department of Streets, testified that he was present at the meeting on December 15, 1982, when Agent Mehrtens advised him of the allegations. He said that when Bosarge came into the meeting he was told of the allegations and that *696 Bosarge said nothing. Womble stated that Agent Mehrtens told him what was said in the interview with Bosarge and, as a result of what was said, it was decided to terminate Bosarge. He admitted that at the meeting between Kaufman, Gorman and himself, no other disciplinary actions were discussed but he later changed his testimony by saying suspension for activities was discussed in detail for an hour or two. He said he did not review the statement given by Bosarge to Agent Mehrtens. Womble testified that he reviewed Bosarge's twelve year record with the city and interviewed fellow workers while Bosarge was interviewed by Mehrtens and before the letter to terminate was written.
At the request of Harold Gorman, Director of Department of Streets, Womble testified that he had conversations with Bosarge's previous supervisor concerning Bosarge's activities in November, 1982. He claimed that the previous supervisor said there was a problem with the hours Bosarge kept and that he suspected Bosarge was involved with the school, but could never prove it. He felt that because of the severity and flagrance of the violation and its apparent long standing nature, there were grounds for termination.
At the meeting on December 15, 1982, Harold Gorman ruled out suspension because of the severity of the offense and the long standing behavior of Bosarge. He relied on what was told to him by Womble. He personally did not make an investigation nor did he speak to Bosarge before or after the interview and subsequent termination.
Delmas H. Bosarge, Jr. testified that he had worked for the City for twelve years and had use of a city vehicle for six years. He believed the only restriction on the use of the car was that it was not to be taken to and from home since he lived outside of Orleans Parish. On occasion, he would take the car to the school where he ate lunch and one time he transported children (in the city vehicle) from the school in Metairie.
Bosarge testified he was a diabetic and, because of the difficulty in finding food for his special diet, his wife fixed lunch for him at the school. Usually, he would take the city vehicle to his Aunt's house in Lakeview where he would switch to his personal car for the drive to the school. Then he would return to Lakeview, switch cars, and go back to City Hall. However, on a few occasions, he would not switch cars.
He stated that he would on occasion take the Long children home and if no one was home he would go switch cars to save time. Then when someone was home he would go back to the house and leave the children. Steve Watsky, a teacher at the school, testified that he regularly brought the children home on his way to his house. The children walked in an open door and he rarely saw anyone greet them.
As a part of his job, Bosarge would have occasion to take the car across parish lines during business hours. Bosarge believed that since he was paid on a professional level it was not necessary for him to take his lunch at a specific time everyday or that he had to work strictly between the normal hours of 8:30 and 4:30. As long as he did his job, the variances in his hours did not matter. Additionally, in the twelve years with the city he had not ever been disciplined for any of his actions.
On December 15, 1982, Ray Kaufman called him to his office, informed him that Agent Mehrtens wanted to interview him, and told him to turn in the keys to the car since he would not use it that day. One-half hour later, he reported to the O.M.I. Office, where, before the interview, he requested legal assistance which he was told was unnecessary. Agent Mehrtens showed him a piece of paper that said, in essence, if he didn't speak during the interview, he would lose his job and not be able to work for City or State Government for ten years. Bosarge then submitted to the interview. He testified Agent Mehrtens left the office for five to ten minutes and returned with the letter of termination. At no time was Bosarge given a chance to talk with either Gorman, Kaufman or Womble.
*697 While this Court agrees that Delmas H. Bosarge, Jr. certainly has some culpability for his actions, we conclude as did the Commission that the record does not support termination from City employment. Reinstatement to his former position with back pay subject to a suspension of one hundred twenty days was deemed reasonable by the Commission. We can not find that this was clearly wrong.
Accordingly, the ruling appealed from is hereby Affirmed. All costs to be borne by Appellant.
AFFIRMED.
REDMANN, C.J., dissents.
REDMANN, Chief Judge, dissenting.
A New Orleans classified civil service employee, paid for seven hours of work daily during a specified eight-hour period, by spending, probably almost every day, two or three hours of those eight hours at (and in driving the city automobile assigned to him over 10 miles to and 10 miles back from) the private school in Kenner that he and his wife own, gives the city legal "cause," La. Const. art. 10 § 8(A), to fire him.
I.
The civil service commission would be wrong, as a matter of law, if its decision in this case were that that systematic, deliberate, double theft of hundreds of dollars of car use and thousands of dollars of time (at $14.71 per hour salary plus fringe benefits) is not sufficient cause for firing a city employee.
The commission's opinion does not concede those facts, however, on which the appointing authority fired Bosarge. The commission, on its reading of a typewritten record of a hearing examiner's hearing, disbelieves all the evidence that the appointing authority relied ondisbelieves the city investigator,[1] disbelieves the apparently disinterested father of two students at the school,[2] and believes instead the city employee's nonsensical, self-serving and uncorroborated tale of being diabetic and of therefore having a medical necessity to drive to Kenner to get lunch (from the K-Mart?)!
This writer must say, while noting his respect for the commission and its members, that the commission in this case overreaches its constitutional authority as protector *698 of city employees against discipline without "cause," and instead supplants the appointing authoritythe department head who must run the departmentby merely substituting its credibility evaluations for the reasonable ones of the appointing authority, supported by the commission's own hearing examiner's record. If one accept those reasonable and record-supported credibility evaluations by the appointing authority, one cannot conclude that the appointing authority did not have cause to fire Bosarge.
II.
"To the victor belong the spoils" was the former political principle of public employment. Employees hired by the previous political administration, whether competent and industrious or not, were fired by the political victors. Incompetent or slothful persons could be hired and promoted at the dictate of the political victors. Public employees could be obliged to pay "deducts" from their salaries to politicians' coffers, and to work in their political campaigns. Those who did not, or who for any other reason or no reason did not please the political bosses, could be demoted or fired without recourse.
That spoils system was years ago replaced by the civil service system, now embodied in La. Const. art. 10. The civil service system intends to protect public employees and the public at large against those and similar evils. It provides "appointments and promotions ... only after certification ... under a general system based upon merit, efficiency, fitness, and length of service ...," art. 10 § 7. It prevents political activity, forced or voluntary, § 9. It disallows disciplinary action against a classified employee "except for cause expressed in writing," allows appeal to the commission with the burden of proof upon the appointing authority, § 8(A), and allows further review "on any question of law or fact" by the court of appeal, § 12.
The commission's constitutional role of guardian against political or other disciplinary action "except for cause," § 8(A), entitles it to deference from the courts in its determination of both whether the established facts constitute legal cause and whether the discipline is commensurate with that cause. Walters v. Dept. of Police of N.O., 454 So.2d 106 (La.1984). More to our point, the commission's role obliges it to make underlying factual findings in respect to whether cause exists, and therefore also entitles the commission's factual findings to deference from the courts, which "should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous." Id. at 114.
Yet the appointing authoritythe department headalso has a role that obliges him or her to make factual findings. The appointing authority necessarily has the duty to administer his or her governmental unit, to discipline or fire employees who do not do their work or who otherwise impair the efficiency of the public servicewho no longer have the "merit, efficiency, [and] fitness," art. 10 § 7, that justified their employment in the first place. If he or she is to perform that duty, the appointing authority cannot escape making factual findings, including some based on credibility evaluations. When the appointing authority does make factual findings, are his or her reasonable factual findings, if supported by the commission's hearing examiner's record, entitled to some deference from the commission (in the absence of record circumstances showing that the appointing authority was wrong)?
This writer would conclude that, although the courts may not reverse the civil service commission's factual findings unless clearly wrong, the commission equally may not reverse the appointing authority's factual findings unless probably wrong on the basis of the record before the commission. The commission exceeds its authority and oversteps its constitutional role if it merely substitutes its reasonable factual inferences for the appointing authority's reasonable factual inferences (when the latter are supported by and not probably wrong on the basis of the commission's hearing examiner's record). That is, with *699 all due respect, all that the commission did in this case.
III.
The commission's decision should therefore be reversed. Bosarge does have some pay coming to him, however. The matter should be remanded to the commission to fix the amount the city should pay Bosarge for the hours worked December 15, 1982 before he was fired, and for the 129 days of payable leave accrued, less some reasonable calculation of the time he was paid for but did not worksay an hour and a half a school day at least from the beginning of the 1981 school year, if not for the entire time he owned the Kenner schooland any leave attributable to that unworked time, and less a reasonable mileage charge for, say, 20 miles a day during that same period.
NOTES
[1] Office of Municipal Investigations investigator Robert Mehrtens testified that, prompted by an anonymous letter whose self-accrediting detail reminds one of that in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), he conducted surveillance on three occasions at the Kenner school.
The first time, May 11, 1982, the city's Chevette was already at the school when Mehrtens arrived at 1:25 p.m. At 2:50 p.m., Bosarge emerged from the school with two young children and drove them in the Chevette back to New Orleans.
The second time (Mehrtens having meanwhile been too busy with other investigations to pursue this one), December 3, Bosarge arrived at 1:30 p.m., shortly left to go to a nearby K-Mart store, where he got "two styrofoam food cartons," and then returned with the food cartons to the school. At 2:43 p.m. he exited the school to return in the Chevette to city hall in New Orleans.
The third time, December 6, Mehrtens arrived at the school at 12:25 p.m. The Chevette was already there. At 1:15 p.m. Bosarge went to K-Mart, got two styrofoam food cartons, and at 1:35 returned to the school. At 2:46 p.m. Bosarge left the school and in the Chevette returned to city hall.
(On a fourth occasion, on December 13, at 2:35 p.m., when just passing by the school, Mehrtens again saw the city's white Chevette assigned to Bosarge parked there.)
[2] William Long III, the father of the two children whom Bosarge had brought from the school in Kenner to their home in New Orleans in May, 1982, testified: "Q. How were they transported to and from school? A. During the year of '81, '82 ... in the afternoon they were dropped off by Mr. Bosarge.... Most of the time it was a small white Chevette ... it had a city sticker on the side of the automobile. Q. Did it say City of New Orleans? A. Yes, it did. It was red, white and blue with the fleur de lis." "Mr. Bosarge brought [the children] home at the time you're talking about every day, with the exception of maybe one or two days." "He used the city vehicle with the exception of a very few times he was in another automobile." Long paid the school (owned by Bosarge and his wife) $50 a month for transportation. (The Long children did not attend the Kenner school in 1982-1983.)
|
FILED
NOT FOR PUBLICATION
JAN 23 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN SCHMID, No. 14-17288
Plaintiff-Appellant, D.C. No. 4:14-cv-02949-JSW
v.
MEMORANDUM*
SONOMA CLEAN POWER,
a public agency,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted January 11, 2017
San Francisco, California
Before: CLIFTON and M. SMITH, Circuit Judges, and ERICKSON,** District
Judge.
Stephen Schmid appeals the district court’s order dismissing without leave
to amend his complaint brought pursuant to 42 U.S.C. § 1983 challenging the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
procedure used by Sonoma Clean Power Authority for automatically enrolling
electricity customers. We affirm.
Schmid’s First Amendment claims for compelled contribution to speech and
compelled association or disassociation fail because he has not been compelled to
do anything. When SCPA became a second electricity seller in Sonoma County to
supplement the monopoly previously held by Pacific Gas & Electric, the default
policy was to enroll consumers in SCPA’s service instead of PG&E’s service. See
Cal. Pub. Util. Code § 366.2(c)(2). SCPA’s customers are permitted to switch to
PG&E’s service at any time by calling a toll-free telephone number or by visiting a
website, although they may be charged an administrative fee if they switch after
having been enrolled in SCPA’s service for more than sixty days. Cal. Pub. Util.
Code § 366.2(c)(13). Customers were informed of their choices twice in the two
months preceding and twice in the two months following the automatic enrollment.
Cal. Pub. Util. Code § 366.2(c)(15)(A).
Unlike the labor union political contribution arrangement the Supreme Court
disapproved in Knox v. Service Employees International Union, 132 S. Ct. 2277,
2296 (2012), SCPA’s enrollment system does not require Schmid to opt out
multiple times in a single year to avoid paying for SCPA’s services. He need not
even opt out on an annual basis. Cf. id. at 2296 n.9. Rather, if he opts out once, he
2
will be enrolled in PG&E’s service, and he will remain enrolled in that service,
even if he moves elsewhere in Sonoma County. Cal. Pub. Util. Code § 366.2(c)(2).
Accordingly, Schmid has not been compelled to give any money to SCPA, and he
has therefore not been compelled to subsidize SCPA’s speech. For the same
reason, he has not been compelled to associate with SCPA or disassociate from
PG&E. Cf. Morrow v. State Bar of California, 188 F.3d 1174, 1177 (9th Cir.
1999).
Schmid’s Fourteenth Amendment economic substantive due process claim
also fails. “[T]he venerable maxim de minimis non curat lex” instructs that “the
law cares not for trifles.” Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505
U.S. 214, 231 (1992). Even if the automatic enrollment provision were a real
deprivation of Schmid’s liberty interest in contracting with PG&E, the provision
“must only pass rational basis review: the statute must be based on ‘a legitimate
legislative purpose furthered by rational means.’” Campanelli v. Allstate Life Ins.
Co., 322 F.3d 1086, 1100 (9th Cir. 2003) (quoting Gen. Motors Corp. v. Romein,
503 U.S. 181, 191 (1992)). The government’s goals in establishing the framework
within which SCPA operates—reducing greenhouse gas emissions, providing
electricity at a competitive cost, reducing energy consumption, and promoting rate
stability, energy security, and energy reliability through local control—are
3
legitimate legislative purposes. See Jensen Family Farms, Inc. v. Monterey Bay
Unified Air Pollution Control Dist., 644 F.3d 934, 943 (9th Cir. 2011); Mountain
Water Co. v. Mont. Dep’t of Pub. Serv. Regulation, 919 F.2d 593, 598 (9th Cir.
1990). For SCPA to accomplish its purposes, customers must purchase their
electricity from SCPA. Automatically enrolling customers in SCPA is a rational
means to create an adequate customer base for SCPA and thereby advance the
government’s legitimate purposes. See Campanelli, 322 F.3d at 1100.
The district court did not abuse its discretion in denying leave to amend on
the grounds that it would have been futile for Schmid to amend his compliant. See
Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008).
AFFIRMED.
4
|
150 S.W.3d 809 (2004)
William Richard CHAPMAN, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 14-02-00917-CR.
Court of Appeals of Texas, Houston (14th Dist.).
October 21, 2004.
*811 Winston E. Cochran, Jr., Houston, for appellant.
Joel H. Bennett, Galveston, for appellee.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
SUBSTITUTE OPINION
CHARLES W. SEYMORE, Justice.
Appellee's Motion for Rehearing is overruled. Our original opinion issued on August 17, 2004 is withdrawn, and we issue this substitute opinion.
Appellant, William Richard Chapman, Jr., was charged with aggravated sexual assault of K.M.F., his six-year-old step-daughter. In appellant's first trial, the court sua sponte concluded proceedings by announcing a mistrial because the jury was deadlocked. In appellant's second trial, the jury found him guilty and assessed punishment at eighty-eight years' confinement in the Texas Department of Criminal Justice, Institutional Division. In four issues, appellant contends the trial court erred by (1) ordering a mistrial of his first trial, (2) admitting improper outcry testimony regarding the charged offense during the guilt/innocence phase of his second trial, (3) allowing a witness to interpret another person's communication concerning an extraneous offense during the punishment phase of his second trial, and (4) admitting improper outcry testimony regarding the extraneous offense during the punishment phase. We affirm the guilty verdict but reverse and remand for a new trial on punishment.
I. MISTRIAL
In his first issue, appellant contends the trial court erred in sua sponte ordering a mistrial after the jury deliberated from 6:00 p.m. until midnight on a *812 Friday night without reaching a verdict.[1] A trial court "may in its discretion discharge [the jury] where it has been kept together for such time as to render it altogether improbable that it can agree." Tex.Code Crim. Proc. Ann. art. 36.31 (Vernon 1981); see Ellis v. State, 99 S.W.3d 783, 787 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (recognizing the length of time the jury may be held for deliberation rests in the trial court's discretion). Whether the trial court abused its discretion in declaring a mistrial is determined by the amount of time the jury deliberates, considered in light of the nature of the case and evidence. Beeman v. State, 533 S.W.2d 799, 800-01 (Tex.Crim.App.1976); Nelson v. State, 813 S.W.2d 651, 653 (Tex.App.-Houston [14th Dist.] 1991, no pet.).
However, here, appellant does not challenge the length of time the jury deliberated. Instead, he merely complains that the jury deliberated at night. He asserts that it was highly unusual and unfair for the trial court to compel deliberations at night. He also suggests the nighttime deliberations caused the deadlock because the jurors were probably exhausted but might have reached a verdict if they had been allowed to continue deliberating on another day. However, we have found no authority prohibiting deliberations at night. Further, we have found no authority requiring the trial court to consider the time of day that the jury deliberated when deciding whether to order a mistrial. Finally, there is no indication the nighttime deliberations caused the deadlock. To the contrary, as the night progressed, the jury sent various requests to the trial court indicating it was still considering evidence despite the late hour. It was only after the jury twice said it was deadlocked "8-4" that the trial court ordered the mistrial. Accordingly, the trial court did not abuse its discretion in ordering the mistrial. Appellant's first issue is overruled.
II. OUTCRY TESTIMONY REGARDING CHARGED OFFENSE
In his second issue, appellant contends the trial court erred in admitting outcry testimony from Clarence Grayson, K.M.F.'s grandfather, and Raytwan Grayson, K.M.F.'s father, regarding the charged offense in the guilt/innocence phase of his second trial. Article 38.072 of the Texas Code of Criminal Procedure created an "outcry exception" to the hearsay rule in prosecutions for sexual offenses committed against a child twelve years of age or younger. See Tex.Code Crim. Proc. Ann. art. 38.072 (Vernon Supp.2004-05). Article 38.072 provides that outcry testimony from the first adult (other than the defendant) to whom the child made statements describing the alleged offense will not be inadmissible because of the hearsay rule if certain requisites are met.[2]Id. *813 The trial court has broad discretion to determine which of several witnesses is an outcry witness, and we will not disturb its decision absent a clear abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990); Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). An abuse of discretion will not be found unless the trial court's decision is outside the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Tear v. State, 74 S.W.3d 555, 558 (Tex.App.-Dallas 2002, pet. ref'd).
A. CLARENCE'S TESTIMONY
First, appellant contends that the trial court abused its discretion by admitting outcry testimony from Clarence Grayson. Appellant asserts the proper outcry witness was Katina Frank, K.M.F.'s mother, because she was the first person to whom K.M.F. made statements about the offense. We agree.
Before appellant's second trial, the trial court held a hearing at which it considered testimony from Katina and Clarence to determine who was the proper outcry witness.[3] Katina testified that K.M.F. told her about the offense "[p]robably the end of March, beginning of April, but no later than May" of 2001.[4] D.F., K.M.F.'s brother, first told Katina that appellant had been "freaking" K.M.F. Katina then asked K.M.F. about this allegation. K.M.F. said that appellant called her into the "back room" of their home, made her lie on a couch, put lotion on his "private part," and tried to "stick" his "private part" in her "behind."[5] To Katina's knowledge, she was the first adult to whom K.M.F. reported the offense.
Clarence testified that K.M.F. told him about the offense between April 3 and April 5, 2001. He and Raytwan had taken K.M.F. and D.F. to Kansas City for spring break. During the trip, D.F. repeatedly urged K.M.F. to tell Clarence "what happened." When Clarence asked what they were talking about, D.F. said that appellant had been "freaking" K.M.F.[6] Clarence asked K.M.F. if that was true. She replied, "He's been freaking on me and my sister." Clarence took K.M.F. aside and asked, "Did he uses [sic] his pee pee? The proper word is penis." K.M.F. replied, "He used his penis." Most significantly, Clarence asked why K.M.F. did not tell her mother, and she replied, "I did." Clarence asked when she told her mother. K.M.F. responded either "awhile back" or a "few days ago."
Based on this testimony, the trial court allowed Clarence to be designated as the outcry witness because he could recall a date certain that K.M.F. told him about the offense, while Katina could only say that K.M.F. told her about the offense between March and May of 2001. However, article 38.072 contains no requirement that a witness provide a date certain on which the child reported the offense to qualify as the outcry witness. See Tex.Code Crim. Proc. Ann. art. 38.072. Rather, article 38.072 allows testimony from the *814 first adult to whom the child made statements about the offense.[7]See id. art. 38.072 § 2(a). Although Katina could not provide a date certain, Clarence's testimony established that Katina was the first adult to whom K.M.F. made statements about the offense. Therefore, the trial court's determination that Clarence, not Katina, was the proper outcry witness was outside the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542; Tear, 74 S.W.3d at 558. Accordingly, the trial court abused it discretion in admitting Clarence's outcry testimony.
B. HARM ANALYSIS
Having found that the trial court abused its discretion in admitting Clarence's outcry testimony, we must determine whether the error is reversible. See Tex.R.App. P. 44.2(b). The admission of inadmissible hearsay constitutes nonconstitutional error, and it will be considered harmless if we, after examining the record as a whole, are reasonably assured that the error did not influence the jury verdict or had but a slight effect. See id.; Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); Drew v. State, 76 S.W.3d 436, 459 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd).[8] Likewise, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App.1991); Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999). After examining the record, we are reasonably assured that the improper admission of Clarence's testimony did not influence the jury verdict, or had but a slight effect, because the same or similar evidence was admitted without objection elsewhere at trial.
First, K.M.F. testified without objection regarding the offense. In fact, her account was more detailed than Clarence's testimony.[9] K.M.F. testified that appellant called her into their living room. Pursuant to his instruction, K.M.F. lay face down on the couch. Appellant removed his clothes and pulled down K.M.F.'s shorts. He also held her hands behind her back. He then put his "front part" inside her "bottom part" twice, and it "hurted." However, K.M.F. could not say anything *815 because appellant had placed a sock in her mouth.
Further, Dr. James Lukefahr, a pediatrician at the University of Texas Medical Branch, testified without objection from the report on K.M.F.'s medical examination, and the report was admitted into evidence. The report states, "History per CPS: During Spring Break of 2001, Pt. disclosed to her father and paternal grandfather that her stepfather had been sexually abusing her. The abuse consisted of her stepfather putting `lotion' on pt's `butt' and penetrating her anus with his penis. This occurred on more than one occasion."
Although Clarence's outcry testimony was cumulative of other evidence, appellant asserts it improperly influenced the jury verdict because Clarence was the most credible witness at trial and showed by his actions that he believed K.M.F when her testimony was otherwise suspect. However, even if Clarence's testimony regarding the content of K.M.F.'s statement had been properly excluded, the jury could still have concluded that Clarence believed K.M.F. because he immediately called Raytwan and made sure appropriate authorities were contacted in reaction to K.M.F.'s statement. Further, Dr. Lukefahr's testimony and report supported K.M.F.'s account of the offense regardless of Clarence's testimony. Therefore, the trial court's error in admitting Clarence's outcry testimony was harmless. See Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (holding improper admission of outcry testimony was harmless where similar testimony was admitted through complainant, pediatrician, and medical records); Poole v. State, 974 S.W.2d 892, 899 (Tex.App.-Austin 1998, pet. ref'd) (holding any error in admitting mother's outcry testimony was cured by admission of the complainants' testimony).
C. RAYTWAN'S TESTIMONY
Appellant also contends that the trial court abused its discretion by admitting outcry testimony from Raytwan Grayson because Katina was the proper outcry witness. However, Raytwan did not give outcry testimony because he did not repeat K.M.F.'s statements about the offense. He testified only that he received "alarming news" from K.M.F., she was upset and crying when she told him the "news," and he called Katina, a child abuse hotline, and the police in response. Accordingly, the trial court did not abuse its discretion in admitting Raytwan's testimony. See Brown v. State, 756 S.W.2d 793, 797 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd) (holding aunt's testimony that she was shocked by what child told her was not inadmissible outcry because aunt did not describe abuse); Turner v. State, 721 S.W.2d 909, 911 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd, untimely filed) (holding mother's testimony that she called the police after child told her about the "situation" was not inadmissible outcry because she did not repeat child's description of the abuse). Appellant's second issue is overruled.
III. OUTCRY TESTIMONY REGARDING EXTRANEOUS OFFENSE
In his fourth issue, appellant contends the trial court erred by admitting improper outcry testimony from Katina regarding an extraneous offense during the punishment phase of appellant's second trial.
A. KATINA'S TESTIMONY
The trial court permitted Katina to testify regarding appellant's alleged sexual *816 abuse of K.M.F.'s sister, K.F.[10] At the time of trial, K.F. was eleven-years-old. She has cerebral palsy, and except for a few words, she does not speak. Instead, she communicates by nodding and shaking her head in response to "yes" or "no" questions and making other physical gestures. Before the punishment phase, the trial court held a hearing to determine, in part, the admissibility of Katina's proffered outcry testimony. The trial court ruled Katina could give limited outcry testimony regarding K.F.'s nodding her head in response to certain questions.[11] In front of the jury, Katina testified that she asked K.F. if appellant did "anything to her in a sexual way," and K.F. nodded "yes."
Appellant contends Katina's testimony was inadmissible because K.F.'s "statement" regarding the "offense" was not sufficiently specific to satisfy the outcry exception.[12] We agree. The outcry exception applies "only to statements that describe the alleged offense." Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a) (emphasis added). To constitute admissible outcry, the statement "must be more than words which give a general allusion that something in the area of child abuse was going on." Garcia, 792 S.W.2d at 91; see Hayden, 928 S.W.2d at 231. Rather, the statement must describe the offense in some discernible manner. Garcia, 792 S.W.2d at 91; Hayden, 928 S.W.2d at 231.[13]
*817 Katina's testimony that K.F. nodded "yes" when asked if appellant did "anything to her in a sexual way" is nothing more than a general allusion to abuse. See Garcia, 792 S.W.2d at 91; Hayden, 928 S.W.2d at 231. The term "sexual way" could have vastly different meanings to different persons. See Garcia, 792 S.W.2d at 91 (recognizing in the context of outcry statements, "generalities can be misleading"). The term does not necessarily even encompass a criminal offense.[14] It is certainly unclear what Katina meant by "sexual way." The lack of specificity is exacerbated by the fact that K.F. is a child, has an I.Q. in the 60's, and was found incompetent to testify. Because the meaning of "sexual way" is unclear to us, we doubt K.F. understood what she was answering when she nodded "yes" to Katina's question. We recognize outcry statements may be admissible despite the unsophisticated language used as long as the offense was described in some discernible manner. See, e.g., Rodriguez v. State, 997 S.W.2d 640, 642 (Tex.App.-Corpus Christi 1999, no pet.) (finding social worker's outcry testimony was proper where child told social worker that defendant put his "private part" into her "private part"); Rainey v. State, 763 S.W.2d 470, 471-73 (Tex.App.-Houston [14th Dist.] 1988, no pet.) (holding mother was proper outcry witness where child told mother that defendant "put his thing in [her]"). However, here, no offense was described at all, much less in any discernible manner.
Accordingly, K.F.'s "statement" did not satisfy the outcry exception, and the trial court abused its discretion by admitting Katina's outcry testimony. See Smith v. State, 131 S.W.3d 928, 931 (Tex.App.-Eastland 2004, pet. ref'd) (affirming that child's statement to his mother that "[defendant] had been performing oral sex" on him was nothing more than a general allusion to sexual abuse because child did not relay any specific details about the offense); Bradshaw v. State, 65 S.W.3d 232, 239-40 (Tex.App.-Waco 2001, no pet.) (determining mother was not outcry witness where child told mother defendant "had been touching her" but offered no details; however, aunt was outcry witness because she asked child where the touching had occurred, and child pointed to the area between her legs and said defendant put his finger inside her); see also Bui v. State, No. 05-96-00901-CR, 1998 WL 420303, at *3-4 (Tex.App.-Dallas July 28, 1998, pet. ref'd) (not designated for publication) (finding no abuse of discretion in trial court's determining that child's statement to aunt that defendant "had sex with me" was general allusion to abuse; however, child's statement to cousin that appellant took her in the bedroom, took her clothes off, put his "private" into her "private," and a few minutes later he took it out and some "white stuff" came out was proper outcry).
B. HARM ANALYSIS
Having found that the trial court abused its discretion by admitting Katina's *818 outcry testimony, we must determine whether the error is reversible. See Tex.R.App. P. 44.2(b). After examining the record as a whole, we are not reasonably assured the error did not influence the jury verdict at the punishment phase or had but a slight effect. See id.; Garcia, 126 S.W.3d at 927; Johnson, 967 S.W.2d at 417; Drew, 76 S.W.3d at 459.
Katina's testimony was not cumulative of other evidence. The trial court precluded any mention of sexual abuse of K.F. during the guilt/innocence phase. The State's only other witness at the punishment phase was Joy Blackmon, a physician's assistant at the University of Texas Medical Branch, who examined K.F. Blackmon testified that K.F.'s genital examination revealed "generalized narrowing" of the hymen which is "consistent with past penetrating injury." However, pursuant to appellant's hearsay objection, Blackmon was not allowed to testify regarding the identity of the abuser, and her medical report was redacted to the extent it identified appellant as the abuser. As a result, Katina's testimony was the only evidence that appellant, if anyone, sexually abused K.F.[15] Therefore, if Katina's testimony had been properly excluded, the jury could not have concluded beyond a reasonable doubt that appellant sexually abused K.F.[16] In contrast, because Katina's testimony was admitted, the jury may have considered it together with the medical evidence and concluded beyond a reasonable doubt that appellant sexually abused K.F.[17]See Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002) (recognizing appellate court conducting harm analysis should consider, among other items, how the error might have been considered in connection with other evidence).
Any such conclusion may have influenced the jury in assessing appellant's punishment. The State's main purpose during the punishment phase was to prove appellant also abused K.F., and, thus, maximize his sentence.[18] The State emphasized this abuse during closing argument:
[W]hat comes to mind when I think about [appellant], a program I saw on Discovery Channel where you have lions going after gazelles. And as much respect as I have for lions, kings of the jungle, I would have to compare them to the sex offender. Where do the lions go after a prey? Do they go after the biggest, fastest possible gazelle? No. They go after the weak, the smaller one, the one left behind, the easy prey. And that's what he did. He went after a six year-old [K.M.F.], analy raped her, and *819 then went after her sister [K.F.] and vaginally raped her.
The State further argued, "You are the ones to determine what happens to [appellant], a sex offender. Two victims. Two of his step-children ... He was raping them." See Motilla, 78 S.W.3d at 355-56 (recognizing appellate court conducting harm analysis may consider, among other items, closing arguments and whether the State emphasized error).
The range of punishment for the charged offense was five years to ninety-nine years or life. See Tex. Pen.Code Ann. § 12.32 (Vernon 2003). Appellant's sentence of eighty-eight years was near the maximum. While the jury may have considered a harsh sentence appropriate for aggravated sexual assault of K.M.F., we cannot say the assertion that appellant is a multiple sex offender who also assaulted a child with cerebral palsy did not influence the sentence.[19] Therefore, the error in admitting Katina's outcry testimony was harmful. See James v. State, 47 S.W.3d 710, 713-15 (Tex.App.-Texarkana 2001, no pet.) (holding that in defendant's trial for aggravated sexual assault of child, improper admission of evidence he engaged in sexual acts with other persons when they were children likely had substantial and injurious effect on jury's punishment verdict because it showed continuing pattern of child abuse by defendant over a period of decades); see also Aleman v. State, 49 S.W.3d 92, 96 (Tex.App.-Beaumont 2001, no pet.) (finding no fair assurance improper admission of DWI convictions did not influence jury's punishment verdict; although convictions were not the only evidence admitted in punishment phase, prosecutor relied on them to urge maximum sentence, and jury imposed maximum sentence).[20] Appellant's fourth issue is sustained.[21]
Accordingly, we affirm the guilty verdict but reverse appellant's sentence and remand for a new trial on punishment.
NOTES
[1] The State asserts that appellant waived this complaint by failing to object to the mistrial. See Tex.R.App. P. 33.1(a). However, there is some authority that as long as a defendant does not request or consent to a mistrial based on a deadlocked jury, he does not waive a complaint about the mistrial by failing to object. See Ex parte Templin, 945 S.W.2d 254, 257 n. 1 (Tex.App.-San Antonio 1997, pet. ref'd) (citing Bowles v. State, 606 S.W.2d 875, 876 (Tex.Crim.App. [Panel Op.] 1980); Davis v. State, 144 Tex.Crim. 474, 164 S.W.2d 686, 689 (1942)). Although appellant did not object, there is no indication he requested or consented to the mistrial. Therefore, we will consider his complaint.
[2] The statement is admissible if (1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement notifies the adverse party of its intention to do so, provides the adverse party with the name of the witness through whom it intends to offer the statement, and provides the adverse party with a written summary of the statement; (2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and (3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law. See Tex.Code Crim. Proc. Ann. art. 38.072 § 2(b).
[3] With the parties' consent, the trial court considered the testimony from the outcry hearing before appellant's first trial.
[4] The State alleged the offense occurred on or about October 1, 2000.
[5] About a week later, K.M.F. added that appellant had put a sock in her mouth.
[6] Clarence understood "freaking" to mean sexual intercourse.
[7] The trial court also stressed that the State "chose" Clarence as the outcry witness. Although the State is required to designate an outcry witness as a prerequisite to offering the testimony, the designation does not confer the status of outcry witness. Regardless of the designation, the proffered outcry witness must be the first adult to whom the child made a statement about the offense. See Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a)(2).
[8] Citing Mosley v. State, 960 S.W.2d 200, 204 (Tex.App.-Corpus Christi 1997, no pet.), appellant contends we should review the trial court's error under the harm analysis applicable to constitutional errors. See Tex.R.App. P. 44.2(a). However, other courts have applied the harm analysis applicable to non-constitutional errors. See Duncan v. State, 95 S.W.3d 669, 671-72 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (rejecting application of the constitutional error analysis to improper admission of outcry testimony); Thomas v. State, 1 S.W.3d 138, 142 (Tex.App.-Texarkana 1999, pet. ref'd) (same). Because the improper admission of hearsay is non-constitutional error, see Garcia, 126 S.W.3d at 927, we also will use the harm analysis applicable to non-constitutional errors. See Debow v. State, No. 14-00-00370-CR, 2001 WL 619178, at *1-2 (Tex.App.-Houston [14th Dist.] June 7, 2001, pet. ref'd) (not designated for publication).
[9] Clarence's outcry testimony in front of the jury was essentially the same as his testimony during the outcry hearing. In sum, he testified that K.M.F. told him appellant had sexual intercourse with her using his penis, but she did not provide any more details about the offense and did not tell him what part of her body appellant contacted with his penis.
[10] Because they have the same initials, we will refer to the sister as K.F., while the complainant is K.M.F.
[11] At the hearing, Katina testified she had previously asked K.F. if appellant did anything to her in a sexual manner, and K.F. nodded "yes." When Katina asked what appellant did, K.F. grabbed her vagina and pointed to her "backside." Based on its observations of K.F., the trial court concluded she was incapable of grabbing and pointing to the extent described, so Katina's testimony regarding those gestures was not credible. Therefore, the trial court allowed Katina to testify regarding K.F.'s nodding her head in response to Katina's questions, but not K.F.'s other gestures.
[12] The State contends appellant did not preserve error on this complaint because he did not object when Katina testified in front of the jury. However, appellant objected to Katina's testimony at a hearing outside the jury's presence; therefore, he was not required to object again when Katina testified before the jury. See Tex.R. Evid. 103(a)(1); Geuder v. State, 115 S.W.3d 11, 13-14 (Tex.Crim.App.2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003); Robinson v. State, 985 S.W.2d 584, 586 (Tex.App.-Texarkana 1998, pet. ref'd). The State also asserts that appellant did not preserve error because his objection at the hearing outside the jury's presence did not match his complaint on appeal. However, appellant's "hearsay" objection was sufficient to preserve his complaint that Katina's testimony did not satisfy the outcry exception. See Long v. State, 800 S.W.2d 545, 546-48 (Tex.Crim.App.1990); see also Lankston v. State, 827 S.W.2d 907, 911 (Tex.Crim.App.1992); Beckley v. State, 827 S.W.2d 74, 78 (Tex.App.-Fort Worth 1992, no pet.). Nonetheless, appellant did sufficiently object on the same grounds raised on appeal; in addition to his hearsay objection, appellant objected that Katina's testimony was not proper outcry because she could not get any meaningful information about "where or when or exactly what." See Ex parte Little, 887 S.W.2d 62, 65 (Tex.Crim.App.1994) (stating objection may be phrased in any manner which sufficiently apprises trial court and opposing counsel of nature of the complaint). Therefore, we will consider his complaint.
[13] We note the outcry exception does not ordinarily apply to hearsay statements regarding an extraneous offense. By its own terms, article 38.072 applies "only to statements that describe the alleged offense." Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a) (emphasis added); see Beckley v. State, 827 S.W.2d at 78 (recognizing outcry exception statute does not extend to a child's outcry respecting an extraneous offense); see also Howard v. State, No. 14-99-01004-CR, 2003 WL 21195473, at *3 (Tex.App.-Houston [14th Dist.] May 22, 2003, pet ref'd) (not designated for publication) (same). However, on appeal, appellant does not challenge the admissibility of outcry testimony regarding an extraneous offense in general. Instead, he asserts this particular outcry testimony was inadmissible based on its content.
[14] In its notice of intent to introduce extraneous offenses, the State asserted it intended to introduce evidence of "aggravated sexual assault" of K.F. The term "sexual way" is too general to describe any prohibited conduct, much less aggravated sexual assault. See Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2004-05) (requiring actor's mouth, anus, or sexual organ to contact or penetrate the mouth, anus, or sexual organ, of the child, or vice-versa, to constitute aggravated sexual assault).
[15] Appellant introduced evidence that some experts now consider Blackmon's finding, traditionally associated with physical abuse, to be a normal variation in girls who have not been sexually abused. Regardless of any conflicting medical evidence, Katina's testimony was the only evidence that appellant may have sexually abused K.F.
[16] The jury was properly instructed that it could not consider evidence of an extraneous offense in assessing punishment unless it found beyond a reasonable doubt that appellant committed the offense. See Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.2004-05); Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999).
[17] Further, the generality of Katina's testimony allowed the jury to interpret the meaning of "sexual way." Considering the medical evidence, the jury may have given "sexual way" its most drastic meaning as urged by the State and concluded that appellant "vaginally raped" K.F.
[18] Although the State introduced appellant's past convictions for forgery of a commercial instrument, theft, and public intoxication, none of these offenses rose to the level of a sexual offense against a child.
[19] During deliberations, the jury asked to see K.F.'s medical report indicating it was considering the alleged abuse of K.F. in determining punishment.
[20] Cf. Brooks v. State, 76 S.W.3d 426, 435-36 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (holding State's failure to give notice of intent to use unadjudicated extraneous offenses in punishment phase of defendant's trial for cocaine possession was harmless; trial court stated its punishment determination would not be based on any unadjudicated offense, defendant had previous final conviction for cocaine possession, and trial court imposed sentence lower than State requested.); Hicks v. State, 901 S.W.2d 614, 617-18 (Tex.App.-San Antonio 1995, pet. ref'd) (finding remarks by witness and trial judge regarding extraneous offenses did not prejudicially influence jury's decision to assess eighty years' sentence for aggravated sexual assault where it heard evidence of defendant's previous convictions for aggravated sexual assault, robbery, statutory rape, and burglary).
[21] In his third issue, appellant also contends Katina's testimony regarding the extraneous offense was improper because she was allowed to interpret K.F.'s gestures. Based on our disposition of appellant's fourth issue, we need not address his third issue.
|
183 Ill. App.3d 571 (1989)
539 N.E.2d 261
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
LISA VALEN et al., Defendants-Appellants.
Nos. 1-87-1883, 1-87-1884 cons.
Illinois Appellate Court First District (4th Division).
Opinion filed May 11, 1989.
*572 *573 Michael J. Pelletier, Martin Carlson, and Mark W. Solock, all of State Appellate Defender's Office, of Chicago, for appellant Lisa Valen.
Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender's Office, of Chicago, for other appellant.
Richard M. Daley, State's Attorney, of Chicago (Inge Fryklund and James E. Fitzgerald, Assistant State's Attorneys, of counsel), for the People.
Judgments affirmed.
JUSTICE LINN delivered the opinion of the court:
After a joint bench trial Lisa Valen (defendant) and Neal Logue (codefendant) were found guilty on information number 87-CR-405 *574 of possession of more than 30 grams of a controlled substance with the intent to deliver and delivery of more than 30 grams of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2).) Codefendant was also found guilty on information number 87-CR-406 of delivery of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2).) Defendant was sentenced to two concurrent terms of six years' imprisonment and codefendant was sentenced to three concurrent terms of six years' imprisonment. Both appeal from their convictions and their appeals have been consolidated.
Defendant contends that she was not proven guilty of the offenses beyond a reasonable doubt because the evidence adduced at trial was insufficient to show that she participated in the delivery or exerted control over the contraband. Codefendant contends that he was not proven guilty beyond a reasonable doubt because there was insufficient evidence that a delivery took place or that the weight of the controlled substance exceeded 30 grams. Codefendant also contends that the trial court erred by finding him guilty of both the delivery and possession charges when his conduct constituted a single offense.
Both defendant and codefendant were charged by information number 87-CR-406 with calculated criminal drug conspiracy and delivery of a controlled substance based on the events occurring on November 24, 1986, and by information 87-CR-405 with calculated criminal drug conspiracy, delivery of more than 30 grams of a controlled substance and possession of more than 30 grams of a controlled substance with intent to deliver based on the events occurring on November 25, 1986. At trial Chicago police officer Curtis Scherr testified that while working in an undercover capacity on November 24, 1986, he contacted Eugene Boerema regarding the possible purchase of one ounce of cocaine.[1] Later that day Scherr met Boerema at Boerema's apartment at 4048 West 63rd Street to make the purchase. It was at this apartment that Scherr first saw defendant and codefendant. Scherr testified that Boerema introduced him to codefendant, who was standing in the doorway to the kitchen. Then Boerema brought a mirror, scales and plastic bag containing a white "brick" of cocaine from a bedroom to the dining room table. There Boerema cut off a portion from the "brick," weighed it on the scales and asked Scherr if it "looked alright." During this time defendant walked around the room and the dining room table while codefendant remained in the kitchen doorway.
*575 Scherr testified that he paid Boerema the agreed price of $1,400 and that Boerema counted the money. He then passed it to codefendant, who again counted it while he walked into the bedroom. Boerema packaged the ounce of cocaine and Scherr left. Scherr then met with his surveillance team, returned to the police station and processed the contraband he received.
Still later that same day Scherr had several telephone conversations with Boerema and codefendant regarding a possible second purchase. Scherr testified that Boerema told him that he could procure any amount of cocaine Scherr needed. Scherr then made arrangements to purchase 10 ounces of cocaine the following day.
On November 25, 1986, Scherr arrived at Boerema's apartment between noon and 1 p.m. to make the second cocaine purchase. Boerema, defendant and codefendant were present, but he was told that the cocaine was not yet available. Scherr then left the apartment and told Boerema to page him when the contraband was available. During that afternoon Scherr made several telephone calls to Boerema's apartment. The first telephone conversation was with Boerema, who stated that the "produce" was still not available. The second telephone conversation was with codefendant, who confirmed that the "stuff" was not there yet. Codefendant also told Scherr at this time that Boerema was a "nice guy" but "a little soft." Codefendant told Scherr that he (codefendant) was the "main guy" and that Scherr should deal directly with him.
Scherr then had two telephone conversations with defendant. In both conversations defendant told Scherr that Boerema and codefendant were not there. When Scherr expressed concern that the deal was taking too long, she told him to "be patient" and "hang in there" because they would soon bring his purchase. In the second telephone conversation with defendant, Scherr told defendant that his patience was gone, and he was not going to go through with the deal. Within 10 minutes of this telephone conversation Boerema paged Scherr and told him that his merchandise had arrived.
Scherr and his partner, Detective Thomas Keough, then proceeded to the Boerema apartment. It was about 5:30 p.m. on November 25, 1986, when Scherr again entered Boerema's apartment. Both defendant and codefendant were present in the apartment along with Boerema. Defendant stayed in the dining room near Boerema, while codefendant stood near the kitchen doorway. On the dining room table was a scale containing a large chunk or "brick" of cocaine. Boerema again asked Scherr if the weight "looked all right." Scherr agreed and then told Boerema to come outside to get the money from his partner. *576 Boerema then instructed codefendant to package the cocaine on the scale as he stepped outside with Scherr.
Outside the apartment Boerema entered Scherr's vehicle and met his partner Detective Keough. Keough turned over $12,500 of DEA funds to Boerema. But as Boerema counted the money he was informed that he was under arrest. Boerema was advised of his rights and informed that there was a search warrant for his apartment. Scherr and the entire surveillance team then accompanied Boerema back into the apartment, searched the premises and arrested defendant and codefendant. As Scherr entered the apartment, he observed codefendant sliding a shotgun under the couch. This shotgun was recovered along with a second shotgun found on the kitchen table under codefendant's jacket.
Besides the nearly 10 ounces of cocaine which had been packaged and left on the dining room table for Scherr, the officers found packages of cocaine on top of the refrigerator in the kitchen and in the center bedroom of the three-bedroom apartment where defendant, codefendant and Boerema resided.
Detective Thomas Keough testified that he had been working with Scherr on November 24 and 25, 1986, and corroborated the testimony of Officer Scherr. Stipulations were then entered regarding the chain of custody and chemical analysis of the contraband. It was stipulated that the package purchased by Scherr on November 24, 1986, contained 28.02 grams of a substance containing cocaine. It was also stipulated that the package of cocaine found on the dining room table on November 25, 1986, contained 279.84 grams of a substance containing cocaine and that the packages found on top of the refrigerator and in the center bedroom contained 163.78 grams and 20.08 grams, respectively, of a substance containing cocaine.
After the State rested, both accused moved for directed findings which were denied. Then defendant testified that she resided at 4048 West 63rd Street and Eugene Boerema was her boyfriend. Although defendant admitted that she was aware that several drug transactions had taken place at the apartment, she claimed that she never directly participated in these transactions and did not approve of them. Defendant testified that she had left the room on November 24, 1986, when the drug transaction took place. However, she admitted having two telephone conversations with Scherr on November 25, 1986, and being present during the subsequent drug transaction on that day. She also admitted to being an occasional cocaine user.
Eugene Boerema then testified on defendant's behalf. He admitted his own involvement in the drug transactions but testified that *577 defendant never took part in or condoned the sale of drugs.
After closing arguments the court found defendant not guilty on information number 87-CR-406, but found codefendant guilty of delivery of a controlled substance. With regard to information number 87-CR-405, the court found both defendant and codefendant guilty of possession of more than 30 grams of a controlled substance with the intent to deliver and delivery of more than 30 grams of a controlled substance.
1, 2 We first consider the appeal of defendant, who contends that there was insufficient evidence to prove her guilty of the offenses beyond a reasonable doubt under a theory of accountability. The relevant inquiry is whether the evidence, viewed in a light most favorable to the State, would support any rational trier of fact in finding that the essential elements of the crimes had been proven beyond a reasonable doubt. (People v. Collins (1985), 106 Ill.2d 237, 261, 478 N.E.2d 267.) To prove guilt under an accountability theory it must be shown that (1) defendant elicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation took place before or during the commission of the offense; and (3) there was a concurrent, specific intent to promote or facilitate the commission of the offense. People v. Schlig (1983), 120 Ill. App.3d 561, 458 N.E.2d 544; People v. Sauer (1988), 177 Ill. App.3d 870, 532 N.E.2d 946.
3 We find that there was sufficient evidence to show that defendant aided or attempted to aid Boerema to knowingly deliver a controlled substance, namely cocaine. It is true that mere presence at the scene of a crime, even with knowledge that the crime is being committed, is not enough to prove participation. (People v. Schlig, 120 Ill. App.3d at 570; People v. Sauer, 177 Ill. App.3d at 876.) However, we believe that the telephone conversations between defendant and Scherr, along with her presence at the time of the sales, support the conclusion that defendant played an active role and shared the common illegal purpose of effecting the sale of the controlled substances. See People v. Burke (1985), 136 Ill. App.3d 593, 601, 483 N.E.2d 674.
4-6 We also find sufficient evidence to show that defendant jointly possessed cocaine with the intent to deliver. To support this conviction the State was required to show that defendant had knowledge of the presence of the contraband, that the contraband was in defendant's control or possession and that the amount of contraband exceeded any amount which might be viewed as possessed for personal use. (People v. Pintos (1988), 172 Ill. App.3d 1096, 1101, 527 *578 N.E.2d 312.) Here, relatively large amounts of contraband, over 160 grams, were found in the kitchen, a common area of the premises where defendant resided and exerted control. This gives rise to an inference that defendant knowingly exerted control over the contraband. (People v. Nettles (1961), 23 Ill.2d 306, 178 N.E.2d 361; People v. Wiley (1988), 174 Ill. App.3d 444, 528 N.E.2d 26.) Furthermore, defendant admitted that she was aware of the presence of controlled substances in the home and Boerema's sale of these substances from the premises. Although defendant testified that she did not approve of these transactions and always left the room during them, the evidence at trial showed that she was present during the two transactions with Scherr. The trier of fact has the duty to assess the credibility of the witnesses, and his findings of fact, even when a conflict exists within the evidence, will not be overturned unless the verdict is so unreasonable, improbable or unsatisfactory that a reasonable doubt of the defendant's guilt exists. (People v. Knight (1985), 133 Ill. App.3d 248, 478 N.E.2d 1082; People v. Burke (1985), 136 Ill. App.3d 593, 483 N.E.2d 674.) We believe that the entire chain of circumstances leads to a reasonable and moral certainty that defendant was guilty of the crimes (People v. Williams (1977), 66 Ill.2d 478, 363 N.E.2d 801), and we affirm defendant's convictions.
As an aside we note that we find no inconsistency in the trial court's failure to find defendant guilty of conspiracy. To find defendant guilty of conspiracy there would have to have been a showing of an agreement to commit the offenses with the intent that the offenses be committed, in addition to proof of an act in furtherance of the common design. (People v. Persinger (1977), 49 Ill. App.3d 116, 363 N.E.2d 897.) Therefore, evidence that defendant aided and abetted the offenses involved here, in a manner sufficient to hold her accountable, does not necessitate a finding that defendant entered into an agreement to follow a course of action that would culminate in the commission of the offenses.
We now turn our attention to codefendant's first issue, that he was not proven guilty of delivery of more than 30 grams of a controlled substance because (a) the State failed to prove the element of delivery with respect to the November 25, 1986, transaction and (b) the State failed to prove that the weight of the cocaine that was delivered exceeded 30 grams.
"Delivery" means the actual, constructive, or attempted transfer of a controlled substance from one person to another. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1102(h).) In the case at bar, the facts reveal that on November 25, 1986, Officer Scherr arrived at the Boerema apartment *579 about 5:30 p.m. to make the second drug purchase. When he arrived Boerema had a quantity of cocaine on a scale for Scherr to view. Scherr, who had arranged to purchase 10 ounces of cocaine, agreed that the quantity appeared correct and then asked Boerema to accompany him outside to obtain payment. As Boerema left, he instructed codefendant to package the cocaine that was on the scale for Scherr. While outside and after receiving the $12,500 payment, Boerema was arrested. Then Scherr and the other surveillance officers entered the apartment and recovered the package of cocaine from the dining room table, where it had been placed for Scherr.
7 We believe that the facts set forth above sufficiently show that codefendant "delivered" a controlled substance. As codefendant notes, "attempt" is defined as a substantial step toward the commission of an act with the concurrent specific intent that the act be completed. (People v. Elmore (1971), 50 Ill.2d 10, 276 N.E.2d 325.) The facts support the finding that codefendant attempted to deliver the cocaine. Even though Scherr never took physical possession of the cocaine prior to codefendant's arrest, the cocaine had been set apart, packaged and placed on the dining room table, for Scherr to take. These acts also sufficiently support the finding that codefendant relinquished control of the cocaine and thus evidence a constructive delivery of the controlled substance.
8 We also find no merit in defendant's argument that the State failed to prove that the weight of the substance delivered on November 25, 1986, was more than 30 grams. There was a factual stipulation concerning this matter which stated:
"On the 25th the amount that was packaged on the table and along with the other cocaine that was [sic], from which it was cut.
That tested positive in the same fashion in the amount of 279.84 grams."
Moreover, Officer Scherr testified that he arranged to purchase 10 ounces of cocaine at a price of $12,500. It was shown that he paid $12,500 at this time and he previously paid $1,400 to purchase one ounce of cocaine. Furthermore, Scherr testified that he observed the cocaine he was purchasing while it was on a scale on the dining room table and it appeared to weigh 10 ounces. Since it is commonly known that one ounce weighs about 28 grams, we believe that the evidence was sufficient to show beyond a reasonable doubt that Logue delivered more than 30 grams of a controlled substance.
We now consider codefendant's final issue, that his convictions for both possession with intent to deliver and delivery of a controlled substance *580 cannot stand. Although codefendant's conviction for delivery of more than 30 grams of a controlled substance was premised on the quantity of cocaine that was delivered to Scherr and the possession-with-intent-to-deliver conviction was premised on the more than 160 grams of cocaine found in the kitchen, Logue argues that one of these convictions must be vacated because his criminal conduct of possessing both quantities of cocaine constituted only a single act. Codefendant acknowledges that section 401(a)(2) of the Illinois Controlled Substances Act delineates several ways in which that section may be violated and that he was charged with two separate and distinct violations of the section. However, codefendant argues that his conduct supported only one conviction. As authority for his position codefendant analogizes to People v. Cox (1972), 53 Ill.2d 101, 291 N.E.2d 1. Codefendant further supports his theory by arguing that possession with the intent to deliver is a lesser-included offense of delivery (People v. Lewis (1980), 83 Ill.2d 296, 415 N.E.2d 319) and that his simultaneous possession of two separate quantities of cocaine constituted a single act. People v. Branch (1986), 143 Ill. App.3d 679, 493 N.E.2d 417; People v. Manning (1978), 71 Ill.2d 132, 374 N.E.2d 200.
Initially, we note that this specific issue has apparently never been decided. Furthermore, we acknowledge that, generally, possession with the intent to deliver is a lesser-included offense of delivery (People v. Lewis, 83 Ill.2d at 302) and, for this reason, simultaneous convictions for possession of a quantity of a controlled substance with the intent to deliver and the actual delivery of that same quantity of controlled substance constitute double jeopardy and require that one conviction be vacated. See People v. Dale (1985), 137 Ill. App.3d 101, 484 N.E.2d 459; see also People v. Stewart (1977), 400 Mich. 540, 256 N.W.2d 31; Jackson. v. Wyoming (Wyo. 1974), 522 P.2d 1356.
9 However, we are not convinced that the further extension of the double jeopardy protection is appropriate under the circumstances presented in the case at bar. In this present case codefendant's convictions were premised upon evidence that he possessed a large quantity of cocaine over and above the quantity of cocaine that was actually delivered. Another jurisdiction, when considering this factor, concluded that multiple convictions and concurrent sentences were appropriate. (See Wyoming v. Carter (Wyo. 1986), 714 P.2d 1217.) We must agree.
In People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, the benchmark case in this State concerning the question of whether multiple convictions and concurrent sentences are appropriate, the court stated:
*581 "Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. `Act,' when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." 66 Ill.2d at 566.
10 We believe that under the circumstances presented in this case the offense of possession with the intent to deliver cannot be said to be a lesser-included offense of the delivery conviction. Furthermore, we find that codefendant committed two separate "acts," one act being "possession" of a quantity of cocaine, and another act being the delivery of a distinctly separate quantity of cocaine, each act requiring proof independent from the other.
In People v. Manning (1978), 71 Ill.2d 132, 374 N.E.2d 200, our supreme court decided that the simultaneous possession of different types of controlled substances constituted a single "act" of possession. Quoting from Braden v. United States (8th Cir.1920), 270 F. 441, the court stated:
"`If a person steals four horses from the barn of another, all being of different color, it would not be competent to charge the thief with four different larcenies when the horses were all taken at the same time and place.'" (71 Ill.2d at 135.)
Using the same rationale here, the defendant, after stealing four horses, proceeded to sell one of these stolen horses. Certainly by selling that horse defendant committed a separate "act" that may be recognized and punished under the law. As a result, we find that the circuit court's determination was in line with the holding set forth in King.
We affirm the judgments of the circuit court with respect to both defendant and codefendant.
Affirmed.
JOHNSON and McMORROW, JJ., concur.
NOTES
[1] Eugene Boerema was another codefendant in this case. However, Boerema pleaded guilty to some of the charges and did not participate in this bench trial.
|
255 P.3d 489 (2011)
350 Or. 297
HENTZ
v.
COURSEY.
(S059335).
Supreme Court of Oregon.
May 5, 2011.
Petition for Review Denied.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1247
In re: STEVEN-GLENN:JOHNSON,
Petitioner.
On Petition for Writ of Mandamus. (4:10-cv-00151-BR)
Submitted: May 19, 2011 Decided: May 23, 2011
Before TRAXLER, Chief Judge, and AGEE and KEENAN, Circuit
Judges.
Petition denied by unpublished per curiam opinion.
Steven-Glenn:Johnson, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven-Glenn:Johnson (“Johnson”) has filed a petition
for a writ of mandamus in which he requests that this court
order the district court to calendar a hearing on his request
for a preliminary injunction and rule on that request. He
further seeks an order directing the district court to order the
United States Marshal’s Service to serve Defendants in Johnson’s
civil action with both a copy of the complaint he filed in the
district court and a notice of the hearing on his request for a
preliminary injunction.
Mandamus relief is a drastic remedy and should be used
only in extraordinary circumstances. Kerr v. United States
Dist. Court, 426 U.S. 394, 402 (1976); United States v.
Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). Johnson
carries the heavy burden of establishing that he has no other
adequate means to attain the relief sought and that his
entitlement to such relief is clear and indisputable. In re
First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir. 1988).
Mandamus may not be used as a substitute for appeal. In re
Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007).
We deny Johnson’s mandamus petition insofar as it
relates to his request that the district court calendar a
hearing on his request for a preliminary injunction and order
the Marshal’s Service to serve Defendants in Johnson’s action
2
with a copy of his complaint and a notice of the hearing. This
relief is not available by way of mandamus.
We deny Johnson’s mandamus petition as moot insofar as
it relates to his request that the district court rule on his
request for a preliminary injunction. The district court has
denied Johnson’s motion seeking a preliminary injunction.
Glenn:Johnson v. Thomas, No. 4:10-cv-00151-BR (E.D.N.C. April 8,
2011).
Accordingly, although we grant leave to proceed in
forma pauperis, we deny the petition for writ of mandamus. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
3
|
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
US AIRWAYS, INC., Plaintiff/Appellant-Cross Appellee,
v.
QWEST CORPORATION, a Colorado corporation, Defendant/Appellee-
Cross Appellant,
SKYLINE STEEL, INC., an Arizona corporation; ONE CALL LOCATORS,
LTD., d/b/a ELM LOCATING & UTILITY SERVICES, a Montana
corporation, Defendants-Appellees.
No. 1 CA-CV 14-0226
FILED 10-01-2015
Appeal from the Superior Court in Maricopa County
No. CV2011-001859
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
Gallagher & Kennedy, P.A., Phoenix
By Kevin D. Neal, Jennifer A. Cranston, Liana J. Garcia
Counsel for Plaintiff/Appellant-Cross Appellee
Ryley Carlock & Applewhite, PA, Phoenix
By Rodolfo Parga, Jr., Andrea G. Lovell
Counsel for Defendant/Appellee-Cross Appellant Qwest Corporation
Audilett Kastner, PC, Tucson
By John J. Kastner, Jr.
Counsel for Defendant/Appellee One Call Locators, Ltd.
US AIR v. QWEST et al.
Opinion of the Court
OPINION
Presiding Judge Maurice Portley delivered the Opinion of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.
P O R T L E Y, Judge:
¶1 In this case we address whether a provision in a public
utility’s tariff,1 which limits the utility’s liability for negligence, may limit a
non-customer’s damages for negligent telecommunication service
interruption. US Airways, Inc. (“US Airways”) claims that the superior
court erred by granting Qwest Corporation’s (“Qwest”) motion for
summary judgment to limit the amount of damages US Airways could
recover for a four-hour telecommunication service interruption. US
Airways also appeals the summary judgment granted to One Call Locators,
Ltd. dba ELM Locating & Utility Services (“ELM”), the contractor that
failed to properly find and mark underground cables. Finally, Qwest cross-
appeals the determination that it owed a duty of care to US Airways. For
the following reasons, we affirm the judgments.
FACTS AND PROCEDURAL BACKGROUND
¶2 US Airways operates a data center in Tempe. In January 2009,
the owner of a nearby building entered into a contract with Skyline Steel,
Inc. (“Skyline”) to build carports in the parking lot adjacent to the data
center. Skyline hired Arizona Blue Stake to locate and mark underground
cables and power sources. Blue Stake notified Qwest, the owner of
underground cable in the construction area, and Qwest hired ELM to search
for and locate the cable.
¶3 ELM, however, was unable to locate Qwest’s cable because
Qwest’s maps were inaccurate. Under its contract with Qwest, ELM was
1 A “tariff” is a public document filed by a utility and accepted by a
regulatory commission detailing services being offered; rates and charges
for those services; and related governing rules, regulations, and practices.
64 Am. Jur. 2d (Public Utilities) § 61 (2011). The tariff for telephone utilities
in Arizona is similarly defined at Arizona Administrative Code R14-2-
501(20), and at Arizona Administrative Code R14-2-1102(14) for a
telecommunications company.
2
US AIR v. QWEST et al.
Opinion of the Court
supposed to contact Qwest for further instructions, but did not. Instead,
ELM marked the ground with a “no conflict” mark, which inaccurately
indicated that the Qwest cable had been located and was outside the
excavation site. Skyline saw the marking, began construction and promptly
severed the cable serving the US Airways data center, causing a four-hour
telecommunication service interruption at the center. The interruption was
not to any services Qwest provided to the data center, but only from the
telecommunication services of AT&T and Electronic Data Systems.
¶4 US Airways sued ELM, then added Qwest and Skyline as
defendants. US Airways alleged the defendants were negligent by failing
to use reasonable care to locate, identify, mark, or supervise the excavation
around its underground cable; claimed Qwest was vicariously liable for
ELM’s work; and sought nearly two million dollars in damages resulting
from the service interruption. Skyline subsequently settled with US
Airways.
¶5 Qwest moved to dismiss for failure to state a claim pursuant
to Arizona Rules of Civil Procedure (“Rule”) 12(b)(6), arguing that Section
2.1.3(B) of its Federal Communications Commission (“FCC”) tariff and
Section 2.4.1(A) of its Arizona Corporation Commission (“ACC”) tariff
barred or significantly limited any liability to US Airways. After briefing
and argument, the court granted Qwest’s motion in part, finding that the
FCC tariff applied and limited Qwest’s liability for its negligence to the
proportionate service charge as defined in the federal tariff. US Airways
filed an unsuccessful motion for reconsideration.
¶6 ELM subsequently filed a motion for summary judgment
arguing it owed no duty to US Airways and that it was entitled to protection
under Qwest’s tariffs. US Airways responded by filing a cross-motion for
partial summary judgment against Qwest and ELM on the issue of
negligence. After briefing, the court found that ELM did not owe US
Airways a duty, granted ELM’s motion for summary judgment, and denied
US Airways’ partial cross-motion as to ELM. The court also denied the
partial cross-motion as to Qwest, but found that as a matter of law Qwest
owed a duty to US Airways.
¶7 At the request of US Airways and Qwest, the court entered a
judgment in favor of US Airways against Qwest for $586.40, which
represented the limited damages US Airways could receive under the
federal tariff. The court entered a judgment in favor of ELM. US Airways
appealed both judgments and Qwest filed a cross-appeal.
3
US AIR v. QWEST et al.
Opinion of the Court
DISCUSSION
I
¶8 US Airways challenges the rulings leading to both judgments.
US Airways argues that the court erred by finding that Qwest’s FCC tariff
limited its liability to the $586.40. Specifically, US Airways contends that
the tariff provision does not govern claims by non-customers, and its
enforcement in this case is unconstitutional and violates public policy. US
Airways also claims that the court erred in granting ELM’s motion for
summary judgment and finding that ELM’s contractual duty to Qwest did
not extend to US Airways because ELM voluntarily assumed Qwest’s duty
to identify and properly mark the underground facilities.
A. Motion to Dismiss
¶9 We independently review the grant of a motion to dismiss
pursuant to Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7,
284 P.3d 863, 866 (2012); N. Peak Constr., LLC v. Architecture Plus, Ltd., 227
Ariz. 165, 167, ¶ 13, 254 P.3d 404, 406 (App. 2011). “[W]e assume the truth
of the allegations set forth in the complaint and uphold dismissal only if the
plaintiff[ ] would not be entitled to relief under any facts susceptible of
proof in the statement of the claim.” ELM Ret. Ctr., LP v. Callaway, 226 Ariz.
287, 289, ¶ 5, 246 P.3d 938, 940 (App. 2010) (quoting Mohave Disposal, Inc. v.
City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996)).
1.
¶10 US Airways contends that the tariff does not apply to its
negligence claim because it is not a direct customer of Qwest. We disagree.
¶11 As a regulated public utility, Qwest’s rates, rules, fees and
responsibilities are governed by tariffs enacted and enforced by the FCC
and the ACC.2 See 47 U.S.C. § 203 (2012); Ariz. Rev. Stat. (“A.R.S.”) § 40-
365; Sommer v. Mountain States Tel. & Tel. Co., 21 Ariz. App. 385, 387, 519
P.2d 874, 876 (1974); Olson v. Mountain States Tel. & Tel. Co., 119 Ariz. 321,
323, 580 P.2d 782, 784 (App. 1978); see also Re U.S. West Comm’s, Inc., 131
2 Qwest’s FCC tariff regulates its interstate services, and its ACC tariff
regulates its intrastate services. The FCC tariff contains provisions limiting
Qwest’s negligence liability to the proportionate service charge. See infra
¶ 16. And section 2.4.1(A) of Qwest’s ACC tariff similarly limits its
negligence liability “in the absence of gross negligence or willful
misconduct.”
4
US AIR v. QWEST et al.
Opinion of the Court
P.U.R.4th 486, 1992 WL 486416 (Ariz. Corp. Comm’n Mar. 27, 1992). Federal
courts examining federal tariffs have held that those tariffs have the force
of law and “conclusively and exclusively control the rights and liabilities
between a carrier and its customer.” MCI Telecomms. Corp. v. Graham, 7 F.3d
477, 479 (6th Cir. 1993); see also MCI Telecomms. Corp. v. Garden State Inv.
Corp., 981 F.2d 385, 387 (8th Cir. 1992). Likewise, we have held that state
public utility tariffs are binding on all customers. See Sommer, 21 Ariz. App.
at 387, 519 P.2d at 876 (“It is well established that where a telephone
company files rules and regulations with the Public Utilities Commission,
such rules and regulations are binding upon all customers w[he]ther or not
they agree to or have knowledge of their existence.”); Olson, 119 Ariz. at
323, 580 P.2d at 784 (upholding tariff limitation of liability).
¶12 Generally, Arizona, and other states, have held that a
provision in a tariff that limits a public utility’s liability for ordinary
negligence in the delivery of its services is reasonable and will be upheld.
See Sommer, 21 Ariz. App. at 387, 519 P.2d at 876; Olson, 119 Ariz. at 324, 580
P.2d at 785; see also Pilot Indus. v. S. Bell Tel. & Tel. Co., 495 F. Supp. 356,
361-62 (D.S.C. 1979) (upholding tariff provision limiting telephone
company’s liability for service interruptions absent gross negligence or
willful or wanton conduct); Warner v. Sw. Bell Tel. Co., 428 S.W.2d 596, 603
(Mo. 1968) (noting that “such limitation provisions are generally valid and
enforceable”); Bulbman, Inc. v. Nev. Bell, 825 P.2d 588, 590 (Nev. 1992)
(adopting position held by most jurisdictions; namely, “upholding validly
promulgated provisions of Public Service Commission tariffs and holding
that the liability limitations contained in such tariffs apply to claims for
simple negligence and breach of contract”); Landrum v. Fla. Power & Light
Co., 505 So. 2d 552, 554 (Fla. Dist. Ct. App. 1987) (same); S. Bell Tel. & Tel.
Co. v. Invenchek, Inc., 204 S.E.2d 457, 460 (Ga. Ct. App. 1974) (same);
Computer Tool & Eng’g v. N. States Power Co., 453 N.W.2d 569, 573 (Minn. Ct.
App. 1990) (same); Garrison v. Pac. Nw. Bell, 608 P.2d 1206, 1211 (Or. Ct.
App. 1980) (same); Sw. Bell Tel. Co. v. Rucker, 537 S.W.2d 326, 331–32 (Tex.
Civ. App. 1976) (same). Courts enforce a tariff provision limiting liability
because a public utility is strictly regulated, and, as a result, its liability
should be defined and limited so that it may be able to provide service at
reasonable rates. Re U.S. West, 131 P.U.R.4th at 505 (citing Pilot Indus., 495
F. Supp. at 361).
5
US AIR v. QWEST et al.
Opinion of the Court
¶13 There are, however, no Arizona cases addressing whether a
tariff provision limiting liability for service interruption may be enforced
against non-customers.3 In ruling on Qwest’s motion, the superior court
favorably cited a California Court of Appeals case, Colich & Sons v. Pac. Bell,
198 Cal. App. 3d 1225 (1988). In Colich, an excavation subcontractor
damaged a telephone company’s underground cable, which caused service
interruption for several of the company’s customers, including United
Airlines. Id. at 1230. United Airlines sued the subcontractor for negligence,
and the subcontractor filed a cross-claim for indemnity against the
telephone company for failing to properly mark the location of its
underground cables. Id. at 1230-31.
¶14 The telephone company moved to dismiss the action based on
its tariff provision, which limited its liability to gross negligence or willful
misconduct. Id. at 1231. The trial court granted the motion. Id. On appeal,
the court announced that the “limitation of liability provisions in a tariff are
binding on the public generally,” including a party who “is not a customer
of the telephone utility but instead is a stranger.” Id. at 1230. After
examining the tariff provision and California precedent, including Trammel
v. Western Union Telegraph Co., 57 Cal. App. 3d 538, 551-53 (1976),4 the court
held the tariff provision barred an action for ordinary negligence against
the telephone company for interruptions “in any of the services or facilities
3 US Airways cites several cases to support its argument that general
principles of contract construction preclude the application of limitation of
liability provisions to non-customers. See Davis v. Prot. One Alarm
Monitoring, Inc., 456 F. Supp. 2d 243 (D. Mass. 2006) (plaintiff, who was not
a party to bank’s contract with alarm company, was not bound by its
limitation of damages clause); Young v. Tri-Etch, Inc., 790 N.E.2d 456 (Ind.
2003) (contractual limitation period did not bar claim of non-party to
contract); Kitz Corp. v. Transcon Shipping Specialists, Inc., 634 N.Y.S.2d 75, 76
(N.Y. App. Div. 1995) (“A party that is a stranger to a contract of carriage is
not bound by limitations of liability in that contract.”). Those cases,
however, are not persuasive because they deal with ordinary contracts
between private companies rather than public utility tariffs.
4 In Trammel, the addressee of a telegram allegedly lost his job because the
telegram recalling him to work was negligently delivered to the wrong
person. 57 Cal. App. 3d at 551-53. The court rejected the argument that a
tariff provision limiting the telegraph company’s liability did not apply to
a third party who had no knowledge of the tariff provision and had not
assented to it, by finding that the tariff provisions “are binding on the public
generally” because they “are an inherent part of the established rates and
have the force and effect of law.” Id. at 551.
6
US AIR v. QWEST et al.
Opinion of the Court
furnished by the Utility,” and was binding on the public generally as an
“inherent” part of establishing reasonable rates for public utilities. Colich,
198 Cal. App. 3d. at 1234-35.
¶15 Moreover, Colich determined that the economic damages
suffered by United Airlines arose “exclusively from an interruption to its
telephone service,” and fell within the protection of the tariff because it fell
within “damages arising from ordinarily negligent mistakes, omissions,
interruptions, delays, errors or defects in any of the services or facilities
furnished by the [u]tility.” Id. at 1235 (internal quotation marks omitted).
To hold otherwise, the court stated, would allow an end-run around the
tariff and undermine the state’s public policy to limit utilities’ negligence
liability. Id. at 1236. Based on the court’s holding, there was little doubt
that the tariff provision limiting the utility’s liability for ordinary negligence
barred the third-party contractor’s claim for equitable indemnity. Id.
¶16 Here, Qwest’s FCC tariff expressly limits its liability for
service interruptions unless the interruption was the direct result of
Qwest’s willful misconduct. The tariff provision, in relevant part, provides:
2.1.3 LIABILITY
***
The Company’s [Qwest’s] liability, if any, for its
willful misconduct is not limited by this Tariff.
With respect to any other claim or suit, by a
customer or by any others, for damages associated
with the installation, provision, preemption,
termination, maintenance, repair or restoration
of service, . . . the Company’s liability shall not
exceed an amount equal to the proportionate
charge for the service for the period during
which service was affected.
Qwest Corporation, Tariff F.C.C. No.1 § 2.1.3 (B)(1) (Oct. 2011) (emphasis
added). The tariff provision applies to any claim, whether by customers “or
by any others,” as long as the claim is for damages “associated with the
installation, provision, preemption, termination, maintenance, repair or
restoration of service.” Id. By including “any others,” the tariff provision
includes US Airways. Consequently, because US Airways seeks damages
exclusively arising out of an interruption of its telecommunications
services, the tariff provision limits Qwest’s liability for ordinary negligence
7
US AIR v. QWEST et al.
Opinion of the Court
to the proportionate service charge, even though US Airways was not
Qwest’s direct customer for the interrupted services.
2.
¶17 US Airways also argues that enforcement of Qwest’s tariff
provision is unconstitutional and violates public policy. Specifically, US
Airways argues that enforcing the provision would violate the anti-
abrogation clause of the Arizona Constitution.
¶18 Article 18, Section 6, of the Arizona Constitution states: “The
right of action to recover damages for injuries shall never be abrogated, and
the amount recovered shall not be subject to any statutory limitation.” The
anti-abrogation clause generally protects the right to file certain claims. In
Lerner v. DMB Realty, LLC, we stated that “to be protected by the anti-
abrogation clause, a cause of action must have existed at common law or
have found its basis in the common law at the time the constitution was
adopted.” 234 Ariz. 397, 406, ¶ 36, 322 P.3d 909, 918 (App. 2014) (quoting
Dickey v. City of Flagstaff, 205 Ariz. 1, 3, ¶ 9, 66 P.3d 44, 46 (2003)) (internal
quotation marks omitted). As a result, in assessing whether a claim is
protected under the anti-abrogation clause, we first must determine
whether the right to file a negligence claim was among “those wrongs
traditionally recognized at common law” including “the right of people to
seek remedy by due course of law for injury to their lands, goods, person, or
reputation.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 17-18, 730 P.2d
186, 194-95 (1986) (quoting Proposed Constitution of 1891, art. 2, § 15)
(internal quotation marks omitted).
¶19 Although negligence actions are part of Arizona’s common
law, a negligence action against a public utility for service interruption or
other economic losses is not. The parties did not cite, and we did not find,
any common law cases that allowed a party to sue a utility for negligence
for service interruption. To the contrary, twenty years after the Gadsden
Purchase, which reconciled border issues between the U.S. and Mexico
following the Treaty of Guadalupe Hildago and created Arizona’s southern
border, the United States Supreme Court determined that a telegraph
company could not be liable for any resulting damages caused by a mistake
in transmission. Primrose v. W. Union Tel. Co., 154 U.S. 1, 12 (1894). After
examining a host of state court decisions which discussed the rules limiting
a telegraph company’s liability for any mis-transmission of messages, the
Court found that any error in the transmission of the plaintiff’s ciphered
message was nothing more than ordinary negligence, and he could only
recover the cost of sending the message but not any lost profits or other
8
US AIR v. QWEST et al.
Opinion of the Court
damages because the true message was lost in translation. Id. at 14-34. This
limitation, which had been one of contract, became one of law as a result of
Congressional action in 1910. See W. Union Tel. Co. v. Esteve Bros. & Co., 256
U.S. 566, 571-72 (1921); W. Union Tel. Co. v. Griffin, 41 Ariz. 387, 390-91, 18
P.2d 653, 654 (1933). In fact, in Esteve Bros. the Court stated that for all
telegraph messages sent:
the outstanding consideration became that of
uniformity and equality of rates. Uniformity
demanded that the rate represent the whole
duty and the whole liability of the company. It
could not be varied by agreement; still less
could it be varied by lack of agreement. The rate
became, not as before a matter of contract by
which a legal liability could be modified, but a
matter of law by which a uniform liability was
imposed. Assent to the terms of the rate was
rendered immaterial, because when the rate is
used, dissent is without effect.
256 U.S. at 572.
¶20 Our review of the case law reveals that before Arizona
became a state there was no common law claim for ordinary negligence
against a telegraph company or other public utility for damages exceeding
the cost of service. And in 1912, when Arizona became a state, our
constitution included a provision creating the ACC and giving the
commission the power to “make reasonable rules, regulations, and orders,
by which such [public service] corporations shall be governed in the
transaction of business within the state.” Ariz. Const. art. 15, § 3; see State
v. Tucson Gas, Elec. Light & Power Co., 15 Ariz. 294, 138 P. 781 (1914); see also
Ariz. Corp. Comm’n v. State ex rel. Woods, 171 Ariz. 286, 290-94, 830 P.2d 807,
811-15 (1992) (discussing ACC history ). And we have upheld public utility
provisions limiting the utility’s liability for ordinary negligence. Sommer,
21 Ariz. App. at 387-88, 519 P.2d at 876-77; Olson, 119 Ariz. at 323, 580 P.2d
at 784.
¶21 Arizona courts have never recognized a common law right for
a person to sue a public utility for its ordinary negligence resulting in only
economic damage where the utility has a tariff limiting its liability. The
parties have cited no authority, nor have we found any, for the proposition
that a customer or user of a telecommunications line may sue the owner of
9
US AIR v. QWEST et al.
Opinion of the Court
that line for negligence for service interruption.5 Rather, the tariff’s
provision limiting liability is consistent with the decisions in other
jurisdictions, public policy, and Article 15, section 3 of the Arizona
Constitution.
¶22 Even if the anti-abrogation clause was applicable, enforcing
the tariff provision limiting liability for ordinary negligence would not
violate the anti-abrogation clause because the tariff provision does not
abrogate US Airways’ negligence action, but only limits its damages. See
Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 334-35, ¶ 32, 972 P.2d 658,
667–68 (App. 1998) (finding the Uniform Anatomical Gift Act did not
unconstitutionally abrogate an action to recover damages for injuries); see
also Cronin v. Sheldon, 195 Ariz. 531, 538, ¶ 34, 991 P.2d 231, 238 (1999) (“We
have held that article 18, § 6 precludes abrogation, but not regulation.”);
Jimenez v. Sears Roebuck & Co., 183 Ariz. 399, 407, 904 P.2d 861, 869 (1995)
(“We long ago held that our constitution permits regulations effectively
reducing a plaintiff’s recovery.”). Because the tariff provision does not bar
US Airways’ negligence claim but only limits its damages, and the
provision does not prevent Qwest from being sued for willful conduct or
gross negligence, see Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487,
493, ¶ 21, 88 P.3d 557, 563 (App. 2003) (“[L]imiting recovery does not violate
the anti-abrogation clause unless it ‘completely abolishe[s]’ the cause of
action.”) (quoting Barrio v. San Manuel Div. Hosp., Magma Copper, 143 Ariz.
101, 106, 692 P.2d 280, 285 (1984)), the tariff provision does not violate the
constitutional anti-abrogation provision.
¶23 US Airways also maintains that Arizona public policy weighs
against enforcing the tariff’s provision limiting its damages. We disagree.
“The courts have long recognized that limiting a public utility’s liability
benefits the public interest in the form of lower utility rates.” Re U.S. West,
131 P.U.R.4th at 505 (citing Pilot Indus., 495 F. Supp. at 361). State public
utility commissions establish reasonable rates with limited liability
exposure in mind. Id. Therefore, public policy does not preclude the
enforcement of the tariff provision limiting a public utility’s liability for
ordinary negligence.
5 Although US Airways cites Sprint Communications Co. v. Western
Innovations, Inc. and Mountain States Telephone & Telegraph Co. v. Kelton,
those cases are inapplicable because they involve actions by a line owner
against an excavator for damages. See Sprint, 618 F. Supp. 2d 1101, 1108 (D.
Ariz. 2009); Mountain States, 79 Ariz. 126, 127-28, 285 P.2d 168, 169 (1955).
10
US AIR v. QWEST et al.
Opinion of the Court
B. Motion for Summary Judgment
¶24 US Airways argues that the superior court erred by granting
ELM’s motion for summary judgment and finding that ELM owed no duty
of care to US Airways. US Airways contends that, by entering into a
contract with Qwest, ELM voluntarily assumed Qwest’s duty to identify
and mark Qwest’s underground facilities.
¶25 We review a grant of summary judgment de novo and view
the facts in the light most favorable to the non-moving party. Edwards v.
Bd. of Supervisors of Yavapai Cty., 224 Ariz. 221, 222, ¶ 8, 229 P.3d 233, 234
(App. 2010) (citing Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11
(2003)). A court may grant summary judgment “if the pleadings,
deposition, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.” Ariz. R. Civ. P. 56(c)(1) (2012). The determination of whether a
genuine issue of material fact exists is based on the record made in the trial
court. See Edwards, 224 Ariz. at 222, ¶ 8, 229 P.3d at 234 (citing Phoenix
Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348
(App. 1994)).
¶26 To establish a claim for negligence, a plaintiff must prove (1)
a duty requiring the defendant to conform to a certain standard of care; (2)
a breach of that standard of care by the defendant; (3) a causal connection
between the defendant’s conduct and the injury; and (4) actual damages.
Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007) (citing
Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983)). Whether a
duty exists is a matter of law for the court to decide. Gipson, 214 Ariz. at
143, ¶ 9, 150 P.3d at 230 (citing Markowitz v. Ariz. Parks Bd., 146 Ariz. 352,
356, 706 P.2d 364, 368 (1985)). And “absent some duty, an action for
negligence cannot be maintained.” Id. at ¶ 11.
¶27 Duty is defined as an “obligation, recognized by law, which
requires the defendant to conform to a particular standard of conduct in
order to protect others against unreasonable risks of harm.” Markowitz, 146
Ariz. at 354, 706 P.2d at 366 (citing Ontiveros, 136 Ariz. at 504, 667 P.2d at
204). A duty of care “may arise from special relationships based on
contract, family relations, or conduct undertaken by the defendant” or from
public policy considerations. Gipson, 214 Ariz. at 145, ¶¶ 18, 22, 150 P.3d at
232 (citing Stanley v. McCarver, 208 Ariz. 219, 221, ¶¶ 7, 8, 92 P.3d 849, 851
(2004)).
11
US AIR v. QWEST et al.
Opinion of the Court
¶28 US Airways argues that ELM voluntarily assumed Qwest’s
duty to all users of the Qwest cable to properly locate and mark the location
of the cable prior to Skyline’s excavation. However, as the superior court
noted in its ruling, US Airways conflates the issue of duty owed by ELM to
Qwest as a direct beneficiary into one owed to US Airways as a third party
beneficiary. ELM had no contractual or other relationship with US Airways
that would establish a duty to protect US Airways from economic harm.
¶29 Arizona law, following the Restatement, imposes a limited
duty of reasonable care on a party who voluntarily undertakes to render
services to another:
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for the
protection of the other’s person or things, is
subject to liability to the other for physical harm
resulting from his failure to exercise reasonable
care to perform his undertaking if
(a) his failure to exercise such care increases the
risk of such harm, or
(b) the harm is suffered because of the other’s
reliance upon the undertaking.
Restatement (Second) of Torts § 323 (1965); see also Lloyd v. State Farm Mut.
Auto. Ins. Co., 176 Ariz. 247, 250, 860 P.2d 1300, 1303 (App. 1992) (finding
that although section 323 speaks of “physical harm,” the “volunteer may be
liable for economic harm as well”). And § 324A provides:
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for the
protection of a third person or his things, is
subject to liability to the third person for
physical harm resulting from his failure to
exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise reasonable care
increases the risk of such harm, or
12
US AIR v. QWEST et al.
Opinion of the Court
(b) he has undertaken to perform a duty owed
by the other to the third person, or
(c) the harm is suffered because of reliance of
the other or the third person upon the
undertaking.
Restatement (Second) of Torts § 324A (1965).
¶30 Section 323 does not apply because ELM did not undertake
any action on behalf of US Airways. See Luce v. State Title Agency, Inc., 190
Ariz. 500, 503-04, 950 P.2d 159, 162-63 (App. 1997) (finding that § 323 did
not apply because defendant title company did not undertake an action on
behalf of appellants). And if we assume, without deciding, that US Airways
was a third party beneficiary of the agreement between ELM and Qwest,
§ 324A would not impose a duty on ELM because US Airways only suffered
economic harm, not physical harm, as a result of the service interruption.6
See Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 232 Ariz. 598, 602, ¶ 18,
307 P.3d 1025, 1029 (App. 2013) (declining to apply § 324A to impose a duty
because plaintiff did not suffer any physical harm); see also Lips v. Scottsdale
Healthcare Corp., 224 Ariz. 266, 268, ¶ 11, 229 P.3d 1008, 1010 (2010) (“Courts
have not recognized a general duty to exercise reasonable care for the
purely economic well-being of others, as distinguished from their physical
safety or the physical safety of their property”) (citing Dan B. Dobbs, The
Law of Torts § 452, at 329–31 (Supp. 2009)). Consequently, the superior court
correctly found that ELM owed no duty to US Airways, and we affirm the
ELM judgment. 7
II
¶31 On cross-appeal, Qwest argues that the court erred in finding
that it owed a duty to US Airways. We review that question of law de novo.
Stanley, 208 Ariz. at 221, ¶ 5, 92 P.3d at 851.
6 The economic loss doctrine does not apply here because there was no
contractual relationship between Qwest and US Airways. See Flagstaff
Affordable Hous. Ltd. P’ship v. Design Alliance, Inc., 223 Ariz. 320, 321, 327-28,
¶¶ 1, 39, 223 P.3d 664, 665, 671-72 (2010).
7 Because we find that ELM did not owe a duty to US Airways, we need not
address US Airways’ argument that ELM is not entitled to protection under
Qwest’s FCC and ACC tariffs.
13
US AIR v. QWEST et al.
Opinion of the Court
¶32 In denying US Airways’ motion for partial summary
judgment, the court held that Qwest, as the owner of the
telecommunications cable, owed a duty to customers and users of the cable,
including US Airways. The court relied on public policy considerations
reflected in the Underground Facilities Act, commonly called Arizona’s
Blue Stake Law. A.R.S. §§ 40-360.21 to -360.32; see generally Gunnell v. Ariz.
Pub. Serv. Co., 202 Ariz. 388, 390-91, ¶¶ 7-11, 46 P.3d 399, 401-02 (2002).
¶33 Public policy may support the recognition of a duty of care.
Gipson, 214 Ariz. at 145, ¶ 23, 150 P.3d at 232. Public policy may be found
in statutes and common law. Id. at 146 n.4, ¶ 24, 150 P.3d at 233 n.4; e.g.,
Ontiveros, 136 Ariz. at 509, 667 P.2d at 209 (finding duty based on dram shop
statutes); Estate of Maudsley v. Mesa Servs., Inc., 227 Ariz. 430, 436, ¶ 21, 258
P.3d 248, 254 (App. 2011) (finding duty based on mental health services
statutes). A statute may establish a duty of care if it “is designed to protect
the class of persons, in which the plaintiff is included, against the risk of the
type of harm which has in fact occurred as a result of its violation.” Gilbert,
232 Ariz. at 601, ¶ 14, 307 P.3d at 1028 (quoting Estate of Hernandez v. Ariz.
Bd. of Regents, 177 Ariz. 244, 253, 866 P.2d 1330, 1339 (1994) (quoting W.
Page Keeton et al., Prosser and Keeton on the Law of Torts § 36, at 229–30 (5th
ed. 1984) (internal quotation marks omitted)).
¶34 Arizona’s Blue Stake Law imposes an affirmative obligation
on an “underground facilities operator”8 to carefully locate and mark its
buried lines within two days of receiving notice of an excavation. Section
40-360.22(B) provides, in pertinent part:
[U]pon receipt of the excavator’s inquiry, the
underground facilities operator shall respond
as promptly as practical, but in no event later
than two working days, by carefully marking
such facility with stakes or paint or in some
customary manner. . . . No person shall begin
8 The Act defines “underground facilities operator” in relevant part as:
[A] public utility, municipal corporation, landlord or other
person having the right to bury underground facilities in any
public street, alley, right-of-way dedicated to the public use
or public utility easement . . . .
A.R.S. § 40-360.21.
14
US AIR v. QWEST et al.
Opinion of the Court
excavating before the location and marking are
complete or the excavator is notified that
marking is unnecessary. . . . An underground
facilities operator may assign any marking or
notification obligations required by this
subsection to an agent or servant of the
underground facilities operator.
Qwest does not dispute that the statute imposes an affirmative obligation
to locate and mark its facilities, but argues that it did not owe a duty to US
Airways because the Blue Stake Law authorizes a civil action for damages
in favor of only utilities and excavators. See A.R.S. § 40-360.28(B).9
However, in order to support a common law duty, a statute need not
explicitly authorize a claim for damages. Gipson, 214 Ariz. at 146, ¶ 27, 150
P.3d at 233.
¶35 The question, as explained by our supreme court, is not
“whether the legislature established a statutory cause of action, but whether
there is a ‘duty’ or ‘obligation’ imposed” by the statute. Ontiveros, 136 Ariz.
at 510, 667 P.2d at 210 (finding that a duty of care may be found in a statute
silent on the issue of civil liability). Here, the Blue Stake Law explicitly
imposes a duty on Qwest, as an underground facilities operator, to carefully
mark its underground cable. Therefore, the legislation was enacted, in part,
to protect end users like US Airways. Accordingly, the superior court did
not err by determining that Qwest owed U.S. Airways a duty based on the
Blue Stake Law.
9 Section 40–360.28(B) states:
If a violation of this article results in damage to an
underground facility, the violator is liable to all affected
underground facilities operators and excavators for all
resulting damages proximately caused by the violations,
including economic loss.
15
US AIR v. QWEST et al.
Opinion of the Court
CONCLUSION
¶36 Based on the foregoing, we affirm the judgments granting
Qwest’s motion to dismiss and ELM’s motion for summary judgment, and
denying US Airways’ cross-motion for summary judgment.
:ama
16
|
919 N.E.2d 1240 (2010)
Curtis STOKES, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A04-0905-CR-276.
Court of Appeals of Indiana.
January 27, 2010.
*1242 Lisa M. Johnson, Special Assistant, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
NAJAM, Judge.
STATEMENT OF THE CASE
Curtis Stokes appeals his convictions for six counts of Attempted Robbery, one as a Class A felony and five as Class B felonies; Robbery, as a Class B felony; Criminal Recklessness, as a Class C felony; Carrying a Handgun Without a License, as a Class A misdemeanor; and for being an habitual offender, following a jury trial. He presents two issues for our review:
1. Whether the trial court abused its discretion when it denied Stokes' motion for a mistrial.
2. Whether the State presented sufficient evidence to prove his five attempted robbery convictions, as Class B felonies, or his robbery conviction.
We affirm in part, reverse in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On December 18, 2008, Gregory Arnold, Jr., the CEO of Big Engine Entertainment Recording Studio ("the studio") in Indianapolis, was working at the studio. Also present in the studio's building that evening were: Shontez Simmons, Edriese Phillips ("Edriese"), Collin Moore, Fred Winfield, Michael Cameron, Andrew Steele, Earnest Phillips ("Earnest"),[1] Willie Brownleee, Shantell Williams, and Arnold, Jr.'s three minor children. All of the building's occupants were spread throughout the building in separate rooms.
At approximately 7:00 p.m., Simmons exited the studio building to smoke a cigarette, and she saw Antonio Walker ("Antonio") and Antwane Walker ("Antwane") arriving to enter the studio. On their way inside, Antonio and Antwane greeted Simmons, whom they knew. Once inside, they looked around for a minute or so and exited the building. A few minutes later, Antonio and Antwane returned accompanied by Stokes, Johnnie Stokes ("Johnnie"), Terry Lynem, and a man named Marcus.[2] All of the men entered the studio building.
Once inside, Antonio and Antwane entered a room where they found Arnold, Jr., Winfield, Williams, and Steele. Arnold, Jr. greeted the men, whom he knew personally, *1243 and Antonio greeted Steele and asked Steele to exit the room with him. Steele followed Antonio outside of the room, and Antwane was waiting outside the room. At that point, Antonio drew a gun from his person and placed it forcefully against Steele's face and said, "Get down. You know what this is." Transcript at 480. Meanwhile, in another area of the studio, Lynem and Marcus grabbed Edriese and demanded his money at gunpoint. Marcus took $200 from one of Edriese's pockets. Also, one or more of the perpetrators ordered Moore to "get down" when gunfire erupted. Moore was shot in the leg, but he was not robbed. After approximately six to twelve shots were fired, the Walkers and other perpetrators fled the scene.
The State charged Stokes and his codefendants with eighteen felony counts, including robbery, attempted robbery, unlawful possession of a firearm by a serious violent felon, battery, and criminal recklessness. During trial, several jurors inadvertently saw documents making reference to Stokes' incarceration pending trial, and Stokes moved for a mistrial. The trial court denied that motion. The trial court granted Stokes' motions for directed verdicts on three attempted robbery counts. And a jury found Stokes guilty of six counts of attempted robbery, one as a Class A felony and five as Class B felonies; robbery, as a Class B felony; criminal recklessness, as a Class C felony; carrying a handgun without a license, as a Class A misdemeanor; and of being an habitual offender. The trial court entered judgment accordingly and sentenced Stokes to an aggregate term of eighty-eight years. This appeal ensued.
DISCUSSION AND DECISION
Issue One: Mistrial
Stokes first contends that the trial court abused its discretion when it denied his motion for a mistrial. Whether to grant or deny a motion for a mistrial is a decision left to the sound discretion of the trial court. Alvies v. State, 795 N.E.2d 493, 506 (Ind.Ct.App.2003), trans. denied. We will reverse the trial court's ruling only upon an abuse of that discretion. Id. We afford the trial court such deference on appeal because the trial court is in the best position to evaluate the relevant circumstances of an event and its impact on the jury. Id. To prevail on appeal from the denial of a motion for a mistrial, the appellant must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. Id. We determine the gravity of the peril based upon the probable persuasive effect of the misconduct on the jury's decision rather than upon the degree of impropriety of the conduct. Id.
A mistrial is an extreme sanction warranted only when no other cure can be expected to rectify the situation. Id. Reversible error is seldom found when the trial court has admonished the jury to disregard a statement made during the proceedings because a timely and accurate admonition to the jury is presumed to sufficiently protect a defendant's rights and remove any error created by the objectionable statement. Id.
Here, Stokes moved for a mistrial after learning that several of the jurors had been exposed to two documents indicating that Stokes and his codefendants were incarcerated pending trial. One of the documents was captioned, "Jail Court Appearance Schedule." The documents had been inadvertently left sitting on a table in the jury room, and some of the jurors saw them and discussed them. One of the jurors informed court staff that all of the jurors knew that Stokes and his codefendants were in custody.
*1244 Upon learning about these circumstances, the trial court opted to voir dire each juror to determine what the jurors knew and whether the information would prejudice Stokes or the others. Stokes objected to the voir dire and insisted on a mistrial. The trial court denied the motion for a mistrial and proceeded with the voir dire of each juror over Stokes' objection. The voir dire consisted of the following: the trial court presented the documents to each juror; asked each juror whether he or she had previously seen the documents and whether he or she had examined them in detail; and asked whether the documents would affect each juror's ability to be fair and impartial in deliberating.
At the conclusion of voir dire, the trial court was convinced that the jurors' impartiality was not impacted by the information contained in the documents. And the trial court stated that "any reasonable citizen in this city would walk into a courtroom and hear the nature of these charges and I think they would automatically conclude by the nature of the charges that the defendants may be incarcerated." Transcript at 251. The trial court denied the motion for a mistrial.
On appeal, Stokes contends that the trial court did not follow the proper procedure under the circumstances. In particular, Stokes cites to our Supreme Court's opinion in West v. State, 758 N.E.2d 54, 55 (Ind.2001), where the court observed that "[w]here the trial court is presented with the possibility that the jury has been exposed to extraneous material having a potential to taint the jury's verdict, upon motion by the defendant the trial court is required to interrogate and admonish the jurors collectively and individually." Initially, we note that Stokes did not ask the trial court to interrogate and admonish the jurors. Instead, Stokes objected to the interrogation and moved for a mistrial, without first requesting an admonishment. Stokes cannot now complain that the trial court did not follow the proper procedure when he did not make any such request and, in fact, opposed the interrogation. Accordingly, the issue is waived. Misenheimer v. State, 268 Ind. 274, 374 N.E.2d 523, 527 (1978) (holding error can only be assigned on questions which were presented and determined by the trial court).
Waiver notwithstanding, Stokes has not demonstrated that he was placed in a position of grave peril as a result of the jurors' exposure to evidence that he was incarcerated pending trial. As the trial court pointed out, given the nature of the charges against Stokes and his codefendants, a reasonable person would expect that the defendants would likely be incarcerated pending trial. Moreover, the evidence is analogous to cases where jurors accidentally see defendants in jail uniforms and/or wearing shackles during the course of a trial. As this court held in Sherwood v. State, 784 N.E.2d 946, 951-52 (Ind.Ct.App.2003), where jurors state that their deliberations will not be affected by their viewing of a defendant in jail clothing, the defendant cannot show actual harm. Indeed, here, the trial court interrogated each juror and was convinced that the jurors would remain impartial in their deliberations. The trial court did not abuse its discretion when it denied Stokes' motion for a mistrial.
Issue Two: Sufficiency of the Evidence
Stokes next contends that the evidence is insufficient to support each of his five Class B felony attempted robbery convictions and his robbery conviction.[3] In particular, *1245 he maintains that the State did not prove that he, either personally or as an accomplice, had the intent to rob each of the victims as alleged in those counts. We agree with Stokes in part, but disagree with him in part.
When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). We look only to the probative evidence supporting the verdict and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id.
To prove robbery, as a Class B felony, the State was required to prove that Stokes knowingly, while armed with a deadly weapon, took from the person or presence of Edriese Phillips property by putting him in fear or by using or threatening the use of force on him. See Ind. Code § 35-42-5-1. To prove attempted robbery, as a Class A felony, the State was required to prove that Stokes knowingly, while armed with a deadly weapon, attempted to take from the person or presence of Collin Moore property by putting him in fear or by using or threatening the use of force on him, by engaging in conduct that constituted a substantial step toward the commission of robbery and which resulted in serious bodily injury to Moore. See id.; Ind.Code § 35-41-5-1. To prove attempted robbery, as a Class B felony, the State was required to prove that Stokes knowingly, while armed with a deadly weapon, attempted to take from the person or presence of Arnold, Jr., Earnest, Steele, Winfield, and Williams property by putting each of them in fear or by using or threatening the use of force on each of them, by engaging in conduct that constituted a substantial step toward the commission of robbery. See id.
It is well settled that there is no distinction between the responsibility of a principal and an accomplice. Stokes v. State, 908 N.E.2d 295, 303 (Ind.Ct.App. 2009). A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person has not been prosecuted for the offense. Ind.Code § 35-41-2-4. The State notes that our Supreme Court has identified some, but not all, of the factors that are generally considered to determine whether one person has aided another in the commission of a crime. These factors include: (1) presence at the scene of the crime; (2) companionship with another engaged in a crime; (3) failure to oppose the commission of the crime; and (4) the course of conduct before, during, and after the occurrence of the crime. Wieland v. State, 736 N.E.2d 1198, 1202 (Ind.2000).
Thus, the State contends that, "The evidence overwhelmingly demonstrates that Defendant was, at least, an accomplice in the crimes that occurred at the Big Engine Company on December 18, 2008." We agree. The State further contends, "that Defendant, in conjunction with his confederates, intended to rob all of the adults inside the studio building that night." That contention requires a close examination of whether the conduct of Stokes and his codefendants that would support a conviction for Class B attempted robbery was, in fact, directed toward each of the alleged victims.
Again, the evidence shows that Stokes' codefendant Lynem robbed Edriese Phillips of $200 of his own money at gunpoint.[4]*1246 And Antonio and Antwane put a gun to Andrew Steele's face and said, "Get down. You know what this is." Transcript at 480. We hold that the evidence is sufficient to support Stokes' convictions as an accomplice[5] for the robbery of Edriese and the attempted robbery of Steele.
But the evidence with respect to the other Class B felony attempted robbery convictions is not as clear. Indeed, the trial court granted Stokes' motions for directed verdict with respect to the alleged attempted robberies of Simmons, Cameron, and Brownlee. The evidence shows that Simmons had left the premises before any robbery had been initiated. And the evidence also shows that neither Cameron nor Brownlee heard the commands to "get down." Brownlee was "some distance from where the events occurred[.]" Transcript at 846. And while Cameron saw the scuffle between Steele and Antonio, heard shots, and got down on the ground, he did not hear any commands.
In denying Stokes' motions for directed verdict with regard to the attempted robberies of Moore, Arnold, Jr., Earnest, Winfield, and Williams, the trial court was persuaded by the State's argument that the perpetrators' commands, namely, "Get down. You know what this is[,]" were directed toward each of the victims listed in the charging information and implied that each was about to be robbed. But our review of the evidence does not support that determination.
Again, the trial court granted directed verdicts with regard to three alleged victims who did not hear any commands. But the trial court denied Stokes' motion for directed verdict with regard to Earnest, even though he did not hear any commands. Earnest was in a sound-proof recording booth at the time the commands to "get down" were made elsewhere in the studio building, and he did not emerge from that booth until gunfire had erupted. That evidence does not support a reasonable inference that Stokes and his codefendants attempted to rob Earnest, and we reverse Stokes' conviction on that count.
Arnold, Jr., Winfield, and Williams were in the room with Steele when Antonio asked Steele to exit the room with him. Thus, Arnold, Jr., Winfield, and Williams were in close proximity to the Walkers when they attempted to rob Steele at gunpoint. All three of them heard the command to "get down," and Arnold, Jr. observed the gun and ensuing scuffle between the Walkers and Steele in the doorway. Arnold, Jr. testified that Antonio "forcefully put" the gun "into Andrew's face" and said, "Get down. You know what this is." Transcript at 479. Then Arnold, Jr. heard Johnnie Stokes repeat, "Get down. You know what this is." Id. at 480. Arnold, Jr. tried to close the door at that point, but he heard a gunshot before he could close the door. He finally got the door closed when more gunshots were fired.
Arnold, Jr. testified that he interpreted the commands, "Get down. You know what this is," to be directed towards him. Id. at 510-11. But the evidence shows that the Walkers escorted Steele outside of the room where Arnold, Jr., Winfield, and Williams were before they pulled a gun on Steele and made the commands. On appeal, Stokes contends that the single larceny rule applies here and mandates that he can only be convicted of one attempted robbery. The single larceny rule provides that when several articles of property are taken at the same time, from the same place, belonging to the *1247 same person, there is but a single larceny. See Dellenbach v. State, 508 N.E.2d 1309, 1314 (Ind.Ct.App.1987). But the evidence shows that Stokes and his codefendants completed the robbery of one victim and attempted to rob other victims. Thus, as the State correctly points out, the single larceny rule does not apply here.
We find the California Court of Appeals' opinion in People v. Bonner, 80 Cal. App.4th 759, 95 Cal.Rptr.2d 642 (2000), instructive. In that case, the defendant was convicted on two counts of attempted robbery where he had planned to rob a hotel manager and assistant manager of money. The defendant knew that the hotel manager and assistant manager routinely traveled together to take deposits to the bank on the first Monday of each month. Accordingly, the defendant, armed with a gun, hid in a laundry room along the managers' route on a day the deposit was to be made. Before the managers arrived, however, two housekeepers came upon the defendant in the laundry room, and the interruption foiled his planned robbery.
The defendant had told his brother about his plan to rob the hotel managers and that it had been interrupted by the housekeepers. That evidence, along with the defendant's own admission to the plot, was used against him to convict him of two counts of attempted robbery. On appeal, he argued that
in situations where the perpetrator never comes into actual contact with the victims, the perpetrator can be convicted only on a single count of attempted robbery. This is so, he [maintained], since until the robber acts against particular persons, it is impossible to know how many victims would have been robbed.
Id. at 764, 95 Cal.Rptr.2d 642. In response to that position, the court stated
[w]hile we agree that often, when an attempted robbery is interrupted before the robber is in the presence of the victims, no meaningful way exists to determine their number and only a single count of attempted robbery would be proper. At times, however, such a determination can be made. The present case is an example.
Id. at 764-65, 95 Cal.Rptr.2d 642.
The Bonner court observed that the defendant's admitted intent was "to stop the two [managers] at gunpoint and take the money from their possession. Since appellant intended to rob two victims, and since he undertook acts beyond mere preparation directed at robbing the two hotel managers, he could properly be convicted of two counts of attempted robbery." Id. at 765, 95 Cal.Rptr.2d 642. The court held that "[a]ny later event that interrupted those crimes was irrelevant to appellant's liability for two counts of attempted robbery." Id. The court also observed that some courts have held that a single act can produce multiple counts of attempt where discrete acts of violence were "directed specifically at identifiable persons." Id. at n. 4.
By contrast, here, neither Stokes nor any of his codefendants admitted to any intent to rob, let alone an intent to rob identifiable persons. Thus, we look to the circumstantial evidence of their collective intent. The Walkers did not hold at gunpoint or otherwise make demands upon everyone in the building. Instead, they escorted Steele outside of the room where Arnold, Jr. and others were sitting, pointed a gun against Steele's face, and ordered him to "get down." We cannot say that that evidence supports a reasonable inference that the Walkers or anybody else had the specific intent to rob Arnold, Jr., Winfield, or Williams, who remained inside the room and ultimately closed a door standing between them and the Walkers. At approximately the same time, Lynem and another man robbed Edriese Phillips of $200 at gunpoint in a hallway. And in yet *1248 another area of the studio, one of the perpetrators ordered Moore to get down on the ground and shot Moore in the leg. This is not a case where gunmen drew weapons on several people in the same room and ordered everyone, directly, to get down on the ground before an attempted robbery was interrupted.
We hold that Antonio's and Johnnie Stokes' commands, "Get down. You know what this is," are, without more, too ambiguous to support a reasonable inference that Stokes and his codefendants intended to rob each of the alleged attempted robbery victims. To the contrary, the evidence shows that the perpetrators singled out certain individuals to rob. The Walkers had an opportunity to make demands upon and to rob everyone in the room with Steele, but instead, they asked Steele to exit the room and only then attempted to rob him at gunpoint. We reverse Stokes' convictions for the attempted robberies of Arnold, Jr., Winfield, and Williams.
Finally, we hold that the evidence is sufficient to prove that Stokes was an accomplice to the attempted robbery of Moore. The evidence shows that Moore was in a hallway of the recording studio when he was ordered to "get down" and shot in the leg. The fact that he was singled out and directly ordered to "get down" supports a reasonable inference that the perpetrators intended to rob him, but were interrupted when gunfire erupted. We hold that the evidence is sufficient to support Stokes' attempted robbery of Moore.
CONCLUSION
Stokes has not demonstrated that he suffered grave peril as a result of the jurors' knowledge that he was incarcerated pending trial. Accordingly, the trial court did not abuse its discretion when it denied Stokes' motion for a mistrial. And while Stokes may well have confined Earnest Phillips, Gregory Arnold, Jr., Fred Winfield, or Shantell Williams, the State did not present evidence sufficient to prove that Stokes intended to rob them.[6] Their proximity to crimes committed against the others did not, without more, make them victims of attempted robbery. Accordingly, we instruct the trial court to vacate the entry of judgment on these four convictions. We affirm Stokes' convictions on all remaining counts.[7]
Affirmed in part, reversed in part, and remanded with instructions.
FRIEDLANDER, J., and BRADFORD, J., concur.
NOTES
[1] A man named Earnest Simmons testified at trial that he was a victim of the offenses committed at the Studio. And the State charged Stokes in relevant part with attempted robbery of a man named Ernest Phillips, but no charges involved anyone named Earnest Simmons. On appeal, Stokes' arguments reference only an alleged victim named Ernest Phillips. For purposes of this appeal, we assume there was only one alleged victim with the first name Earnest or Ernest, and for ease of discussion, we will refer to the alleged victim as Earnest Phillips.
[2] The man named Marcus was never identified.
[3] Stokes does not challenge the sufficiency of the evidence with regard to any of his other convictions.
[4] The parties have not directed us to any evidence that Stokes or his codefendants stole or attempted to steal any property or money belonging to the recording studio.
[5] Stokes does not challenge the sufficiency of the evidence regarding the elements of accomplice liability. Instead, he contends only that the evidence does not support the element of intent to rob each alleged victim.
[6] The State did not charge Stokes with confinement.
[7] Because Stokes' sentences on these four counts were concurrent with his sentences on the other counts, the vacation of these convictions will not affect his aggregate sentence.
|
No. 2--01--0661
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
JEAN FISHER, JOSEPH FISHER, ) Appeal from the Circuit Court
JANET FISHER, and SUSAN YELLEN; ) of Jo Daviess County.
JAMES OTIS and MARGARET OTIS, )
Individually and as Trustee of )
the Margaret B. Otis Trust; )
ADLAI STEVENSON and )
NANCY STEVENSON, )
)
Plaintiffs-Appellants, )
)
v. ) No. 98--L--14
)
JOSEPH BURSTEIN; CHESTNUT )
MOUNTAIN LODGE JOINT VENTURE )
AND ITS UNKNOWN OWNERS; )
CHESTNUT MOUNTAIN RESORT, INC.; )
CHESTNUT MOUNTAIN SLIDE COMPANY; )
CHESTNUT MOUNTAIN SKI CORPORATION;)
GALENA LODGE CORPORATION; and )
JO DAVIESS COUNTY, ) Honorable
) William A. Kelly,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
Plaintiffs appeal from the trial court's order granting summary judgment in favor of defendants and denying summary judgment to plaintiffs. We affirm.
Defendants Chestnut Mountain Lodge Joint Venture and Its Unknown Owners, Chestnut Mountain Resort, Inc., Chestnut Mountain Slide Company, and Chestnut Mountain Ski Corporation, of which defendant Joseph Burstein is an owner, operate a ski resort in unincorporated defendant Jo Daviess County. With the exception of Jo Davies County, the defendants shall be referred to collectively as Chestnut Mountain defendants. Plaintiffs, Jean Fisher, Joseph Fisher, Janet Fisher, and Susan Yellen; James Otis and Margaret Otis, individually and as trustee of the Margaret B. Otis Trust; and Adlai Stevenson and Nancy Stevenson, own land adjacent to or near the Chestnut Mountain lands. In 1997, the Chestnut Mountain defendants opened a new snowboarding facility called "The Far Side" and a new building called "Village Ski Center" on the eastern slope of the mountain. In July 1998, plaintiffs filed a complaint seeking declaratory and injunctive relief against the Chestnut Mountain defendants (not including Burstein) to prohibit the operation of The Far Side "without proper authorization." In June 1999, plaintiffs amended their complaint, adding Burstein and Jo Daviess County as defendants. Count I alleged that the Chestnut Mountain defendants developed and operated The Far Side in violation of the county zoning ordinance and sought declaratory relief, an injunction permanently enjoining further use or development of The Far Side, and an order of
mandamus
directing the County "to perform the statutory duties to effectuate" any order of the court. Counts II, III, and IV raised issues of breach of covenant, contempt, nuisance, and trespass. The parties filed cross-motions for summary judgment on count I. The trial court granted the defendants' motions and denied plaintiffs' motion. This appeal followed.
Plaintiffs contend that the trial court erred in granting defendants' motions for summary judgment. A motion for summary judgment should be granted only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.
Romano v. Morrisroe
, 326 Ill. App. 3d 26, 27-28, (2001). The disposition of a summary judgment motion is not discretionary, and the standard of review on appeal is
de novo
.
Romano
, 326 Ill. App. 3d at 28. To determine whether a genuine issue of material fact exists, a reviewing court must consider the pleadings, depositions, admissions, exhibits, and affidavits on file and construe them liberally in favor of the opponent of the motion and strictly against the movant.
Romano
, 326 Ill. App. 3d at 28.
The relevant facts are not in dispute. Chestnut Mountain was developed as a ski resort in 1959, prior to the enactment of the ordinance in question. The resort includes a hotel with lodging and food and beverage facilities, pool facilities, a miniature golf putting green, tennis courts, and illuminated parking. The west-northwest slope of the mountain was developed with downhill ski trails, chair lifts, flood lights, loudspeakers, an Alpine slide, and snow-making and snow-grooming machines. The eastern slope of the mountain was not developed prior to 1997, with the exceptions of a sewage treatment facility, a retention pond, and an unpaved bicycle trail. The Jo Daviess County zoning ordinance was approved on December 14, 1993, and became effective on March 1, 1995. The development of The Far Side in 1997 included land clearance, creation of a ski trail and a "terrain park" for snowboarding, construction of a chairlift, and installation of light towers, snow-making and snow-grooming machines, electric and water infrastructure, and signs. The Chestnut Mountain defendants did not apply for or obtain any zoning permits from the county before they developed The Far Side. The county's position on the matter was that its ordinances did not require any additional zoning permits.
Section 12.1 of the ordinance provides in relevant part:
"PERMITTED USES
No building or other structure shall be erected, altered or enlarged and no use of land shall be established or enlarged for any use except a use that is named in the list of permitted uses for the zoning district in which the building, structure or land is, or will be located. There shall be two (2) exceptions to this requirement:
Uses lawfully established on the effective date of this Ordinance may be continued subject to the conditions and restrictions contained in Article XIV (page 61)[;]
Special uses may be allowed, but only in accordance with the provisions of article XIII, Section 13.7 (page 52)[.]" Jo Daviess County Zoning Ordinance, §12.1(A) (eff. March 1, 1995).
Section 14.3 of the ordinance provides:
"NON-CONFORMING USES--When the applicable district regulations do not allow as a permitted use *** an existing use of land not involving a building or structure, such existing use may be continued except as otherwise permitted by this Article ***.
A.
Change
***
(2) The non-conforming use of land, not involving a building or structure, or in connection with which any building or structure thereon is incidental or accessory to the principal use of land, shall not be changed to any use, except to a use permitted in the district in which the land is located[.]" Jo Daviess County Zoning Ordinance §14.3(A)(2) (eff. March 1, 1995).
Plaintiffs assert that the Chestnut Mountain defendants maintained six nonconforming uses at the effective date of the ordinance, including the chairlift and floodlight structures, underground electric cable, water main infrastructure, and the ski slope. Plaintiffs then contend that the term "continued," as applied to nonconforming uses, does not allow for the expansion of such uses. Thus, according to plaintiffs, the Chestnut Mountain defendants improperly developed The Far Side, since such development was a prohibited expansion of a nonpermitted use. We disagree.
Section 12.1(A) prohibits the establishment or enlargement of a use of land that is not listed as a permitted use, with an exception for uses lawfully established on the effective date of the ordinance. Such uses may be "continued," subject to article XIV restrictions. See Jo Daviess County Zoning Ordinance, §12.1(A) (1) (eff. March 1, 1995). Plaintiffs argue that the word "continue" denotes maintenance or endurance, not an expansion or increase. Further, according to plaintiffs, "continued" has a "temporal" connotation, referring to time or duration, not a "spatial" connotation referring to area or the dynamics of development.
We look to the language and structure of the ordinance to determine its meaning. Section 12.1(A) prohibits establishing or enlarging a nonpermitted land use with two "exceptions," one of which is enlarging nonconforming uses
existing on the effective date of the ordinance
. Thus, nonconforming uses existing on the effective date are excepted from the general prohibition against establishing or enlarging a nonpermitted land use.
A governmental body may restrict a nonconforming use as may be necessary for public health, safety, comfort, or welfare.
Ford City Bank & Trust Co. v. County of Kane
, 114 Ill. App. 3d 940, 953 (1983). Such regulation may cover the extension or expansion of such uses.
Cities Service Oil Co. v. Village of Oak Brook
, 15 Ill. App. 3d 424, 428 (1973). However, such a regulation is not required, nor is it implied. The ordinance at issue in this case contains no provision that would prohibit the extension or expansion of nonconforming uses. Section 14.3(A)(2) provides that a nonconforming use of land shall not be
changed
to any use other than a use permitted in the district, but nowhere is the
expansion
of a nonconforming use prohibited. The absence of such a prohibition is made all the more apparent by the inclusion of section 14.4 of the ordinance, which provides that
lawful
special uses, which are distinct from and not to be considered nonconforming uses, are not to be "substantially expanded" unless a supplemental special use permit is obtained. See Jo Daviess County Zoning Ordinance §14.4 (eff. March 1, 1995). Under the principle of
inclusio unius est exclusio alterius
, the enumeration of an exclusion in a statute or ordinance is construed as the exclusion of all others.
Knolls Condominium Ass'n v. Harms
, 326 Ill. App. 3d 18, 22 (2001). While the county could have imposed some similar restriction on the expansion of nonconforming uses, it did not do so, and we will not impose such a restriction on our own accord.
Ordinances are
sui generis
; the interpretation of an ordinance must be based on the language contained in that particular enactment. Zoning ordinances are to be construed in the same manner as statutes; effect should be given to the intent of the drafters by concentrating on the terminology, its goals and purposes, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance.
Monahan v. Village of Hinsdale
, 210 Ill. App. 3d 985, 993 (1991). While citation to general rules of statutory construction is appropriate, citation to cases in which ordinances were found to prohibit expansion of nonconforming uses is of little value unless the ordinances were worded the same. Plaintiffs' reliance on and citation to such cases is misplaced and of little value.
In the absence of any explicit restriction on the expansion of a nonconforming use in the ordinance, we conclude that such expansion was not prohibited as a matter of law. Therefore, the trial court did not err in granting defendants' motions for summary judgment on count I.
For these reasons, the judgment of the circuit court of Jo Daviess County is affirmed.
Affirmed.
HUTCHINSON, P.J., and CALLUM, J., concur.
|
330 P.2d 532 (1958)
Eugene Raymond LEWIS, Plaintiff in Error,
v.
Harry C. TINSLEY, Warden of the Colorado State Penitentiary, Defendant in Error.
No. 18554.
Supreme Court of Colorado, En Banc.
October 14, 1958.
William O. DeSouchet, John G. Taussig, Jr., and William A. Trine, Boulder, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.
DAY, Justice.
Plaintiff in error was the petitioner in the lower court in a habeas corpus proceeding in which he sought release from the state penitentiary on a number of grounds. Contending that the court erred in denying his petition for habeas corpus, he brings the matter here on writ of error.
In 1950 petitioner was charged by an information in four counts with: robbery, assault with intent to commit murder; assault and battery, and kidnapping. Upon *533 being arraigned, petitioner, represented by counsel, entered a plea of guilty to assault with intent to commit murder and robbery. What disposition was made of the other counts is not shown in the record, but we assume the other counts were dropped. At the time of the sentence neither petitioner nor counsel made any statement as to why sentence should not be pronounced. Petition for habeas corpus was filed seven years after the original cause. Petitioner never sought review of the original proceedings.
Petitioner, acting pro se, set forth thirteen allegations in his petition for the writ. Later he was represented by counsel, and the petition was amended by leave of court. In summary, petitioner alleged that he was deprived of his right to counsel; was insane at the time of the arraignment, at least to the extent that he did not comprehend the consequences of a guilty plea; that he was coerced into making the plea; that the district attorney promised him a lighter sentence than the one given by the court. Nowhere in the petition or amended petition was it alleged that the court lacked jurisdiction of the person or the offense or that the sentence was not within the statutory limitations.
It is to be noted that petitioner's contention that he was not represented by counsel is modified by the assertion that he was not represented by "effective" counsel. There is a statement in the brief of plaintiff in error, but not in the record, that although counsel was appointed for him on the day of his entry of the plea of guilty, such counsel for reasons not disclosed could not appear, but his associate appeared to represent the defendant. The complaint of failure to appoint "effective counsel" is a slight variation from the series of cases heretofore filed by other penitentiary inmates wherein the charge usually is that the court failed to advise the prisoners of their right to counsel.
Because of several recent decisions no lengthy citation of authorities is warranted here. Every contention urged as reason for issuing the writ has been disposed of contrary to petitioner's contentions in Farrell v. District Court, 135 Colo. 329, 311 P.2d 410; Freeman v. Tinsley, 135 Colo. 62, 308 P.2d 220, and Freeman v. Tinsley, 355 U.S. 843, 78 S.Ct. 65, 2 L.Ed.2d 52, wherein certiorari was denied by the United States Supreme Court. See also Freeman v. People, 128 Colo. 99, 260 P.2d 603; Kelley v. People, 120 Colo. 1, 206 P.2d 337.
Since the allegations in the petition in many respects refer to proceedings which could only be reviewed on writ of error and none of the allegations is within the defined boundaries of habeas corpus as stated in Farrell v. District Court, supra, the petition was defective on its face, and the court was correct in denying the petition and declining to issue the writ. We repeat that habeas corpus cannot be used as a substitute for motion for new trial; in arrest of or to set aside a judgment; or for writ of error.
The trial court is affirmed.
|
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2296
___________________________
Citizens Telecommunications Company of Minnesota, LLC
lllllllllllllllllllllPetitioner
v.
Federal Communications Commission; United States of America
lllllllllllllllllllllRespondents
Ad Hoc Telecommunications Users Committee; BT Americas, Inc.; Granite
Telecommunications, LLC; INCOMPAS; Sprint Corporation; Windstream
Services, LLC
lllllllllllllllllllllIntervenors
___________________________
No. 17-2342
___________________________
Ad Hoc Telecommunications Users Committee; BT Americas, Inc.; Granite
Telecommunications, LLC; INCOMPAS; Sprint Corporation; Windstream
Services, LLC
lllllllllllllllllllllPetitioners
v.
Federal Communications Commission; United States of America
lllllllllllllllllllllRespondents
NCTA-The Internet & Television Association; Comcast Corporation; AT&T
Services, Inc.; USTelecom; CenturyLink, Inc.
lllllllllllllllllllllIntervenors
------------------------------
Consumer Federation of America; New Networks Institute; Public Knowledge
lllllllllllllllllllllAmici on Behalf of Petitioners
___________________________
No. 17-2344
___________________________
CenturyLink, Incorporated
lllllllllllllllllllllPetitioner
v.
Federal Communications Commission; United States of America
lllllllllllllllllllllRespondents
Ad Hoc Telecommunications Users Committee; BT Americas, Inc.; Granite
Telecommunications, LLC; INCOMPAS; Sprint Corporation; Windstream
Services, LLC
lllllllllllllllllllllIntervenors
___________________________
No. 17-2685
___________________________
-2-
Access Point, Inc.; Alpheus Communications, LLC; New Horizons
Communications Corp.; XChange Telecom, LLC
lllllllllllllllllllllPetitioners
v.
Federal Communications Commission; United States of America
lllllllllllllllllllllRespondents
NCTA-The Internet & Television Association; Comcast Corporation; AT&T
Services, Inc.; USTelecom; CenturyLink, Inc.
lllllllllllllllllllllIntervenors
------------------------------
Consumer Federation of America; New Networks Institute; Public Knowledge
lllllllllllllllllllllAmici on Behalf of Petitioners
____________
Petitions for Review of an Order of the
Federal Communications Commission
____________
Submitted: May 15, 2018
Filed: August 28, 2018
____________
Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
____________
GRASZ, Circuit Judge.
-3-
Two groups of petitioners ask this Court to review a 2017 order of the Federal
Communications Commission (“FCC”) that alters the FCC’s regulations for business
data services (“BDS”). One group, the “ILEC Petitioners,”1 challenges new price cap
rates in the order. The second group, the “CLEC Petitioners,”2 challenges most of the
other changes in the order, both on the adequacy of notice and on the merits. For the
reasons discussed below, we grant the CLEC Petitioners’ petition in part, regarding
notice. We deny the petitions in all other respects.
I. Background
A. Business Data Services
The term BDS generally refers to communications lines for businesses, which
offer dedicated service with guaranteed performance and speed. BDS is currently
1
The ILEC Petitioners are Citizens Telecommunications Company of
Minnesota, LLC and CenturyLink, Inc. The term “ILEC” refers to “Incumbent Local
Exchange Carriers.” Local exchange carriers are companies that provide local
telephone service or access. 47 U.S.C. § 153(32). The “incumbent” local exchange
carriers are the carriers that held virtual monopolies in the provision of telephone
service in their areas for many years before changes in law encouraged competition.
2
The CLEC Petitioners are: Ad Hoc Telecommunications Users Committee; BT
Americas, Inc.; Granite Telecommunications, LLC; COMPTEL d/b/a INCOMPAS
(“INCOMPAS”); Sprint Corp.; Windstream Services, LLC; Access Point, Inc.;
Alpheus Communications, LLC; New Horizons Communications Corp.; and
XChange Telecom, LLC. Several of these petitioners are “CLECs” or “Competitive
Local Exchange Carriers,” while a few are BDS customers rather than any type of
local exchange carrier. INCOMPAS is a national trade association representing
competitive communications service providers and their supplier partners. We refer
to the entire group as the CLEC Petitioners for ease of reference.
-4-
transitioning from being provided through phone line-based “TDM” services,3 which
are heavily regulated, to being provided through packet-based “Ethernet” services,
which are lightly regulated. Regulations limit prices on BDS in several ways,
including imposing caps on aggregate prices (“price caps”). See WorldCom, Inc. v.
F.C.C., 238 F.3d 449, 454 (D.C. Cir. 2001). Regulations also require certain
providers to tariff these services, which essentially means to publish any changes in
the prices they charge before the changes take effect. See id.
The services at issue in this case are two different subsets of BDS: (1) end user
channel terminations (or “channel termination services”), which connect the main
provider’s office to a customer’s building; and (2) dedicated “transport services,”
which connect a provider’s offices to other network locations. Currently, some of the
CLEC Petitioners compete for customers by purchasing BDS from the main providers
in order to reach specific customers. A competitor uses one or both services
depending on whether it has equipment in a particular office or connects its network
to the main provider’s network at a different point.
Prior to issuance of the order under review in this case (Business Data Services
in an Internet Protocol Environment, 32 FCC Rcd. 3459 (2017) (the “2017 Order”)),
the FCC had relied on a “temporary” formula for calculating the price caps on BDS.
These price caps are generally subject to two adjustments: an annual increase to
account for inflation; and an annual decrease to account for productivity in
telecommunications that exceeds productivity in the general economy. The FCC
refers to the annual decrease as the “X-factor.” In 2000, the FCC adopted a proposal
that set temporary X-rates of 3.0% for 2000, 6.5% for 2001 through 2003, and a rate
equivalent to the inflation rate pending the FCC revisiting the issue by 2005. Access
3
“TDM” refers to “time division multiplex,” which is how providers transmit
information over phone lines.
-5-
Charge Reform, 15 FCC Rcd. 12962, 13025 ¶ 149 (2000). However, the FCC never
revisited the issue until the 2017 Order.
The FCC also avoided permanent rules for applying BDS price caps before the
2017 Order. 2017 Order at ¶ 1. In 1999, the FCC sought to remove price caps on
channel termination services and transport services in areas of the country with more
competitive markets through what is known as the “Pricing Flexibility Order.” See
generally Access Charge Reform, 14 FCC Rcd. 14221 (1999) (“Pricing Flexibility
Order”). The Pricing Flexibility Order provided some immediate changes and also
established two forms of broader relief available in metropolitan statistical areas
(“MSAs”) for service providers that could prove a particular MSA met certain
designated competitive thresholds. See WorldCom, Inc., 238 F.3d at 454–55. In
2002, AT&T4 petitioned the FCC to reconsider its Pricing Flexibility Order, alleging
that the order was not fostering competitive entry and seeking a moratorium on
further grants of pricing flexibility. See Special Access Rates for Price Cap Local
Exchange Carriers, 20 FCC Rcd. 1994, ¶¶ 1–6 (2005). In 2005, the FCC rejected
AT&T’s requests but sought comment on the BDS price cap regulations and on any
appropriate interim relief. See id. That 2005 Notice of Proposed Rulemaking started
a proceeding that continued from January 2005 until the 2017 Order at issue in this
case. 2017 Order at ¶ 1.
B. The 2016 Notice and the 2017 Order
In 2016, the FCC issued the most recent Further Notice of Proposed
Rulemaking regarding BDS price caps. See Business Data Services in an Internet
Protocol Environment, 31 FCC Rcd. 4723 (2016) (the “2016 Notice”). The 2016
4
The 2002 version of AT&T was acquired by Southwestern Bell Company,
which then rebranded as AT&T. Thus, the AT&T intervenor in this case does not
necessarily share the views of the 2002 version of AT&T on BDS.
-6-
Notice “propos[ed] to end the traditional use of tariffs for BDS services and discard[]
the traditional classification of ‘dominant’ and ‘nondominant’ carriers,” pairing this
deregulation “with the use of tailored rules where competition does not exist.” Id. at
¶ 4. The 2016 Notice articulated “four fundamental principles” for the new proposed
regulations. Id. “First, competition is best.” Id. at ¶ 5. “Second, the new regulatory
framework should be technology-neutral.” Id. at ¶ 6. “Third, Commission actions
should remove barriers that may be inhibiting the technology transitions.” Id. at ¶ 7.
“Fourth, the Commission should construct regulation to meet not only today’s
marketplace, but tomorrow’s as well.” Id. at ¶ 8.
In the 2017 Order, the FCC began by analyzing competition in the market. It
stated that its competition analysis was “informed by, but not limited to, traditional
antitrust principles” and addressed “technological and market changes as well as
trends within the communications industry, including the nature and rate of change.”
2017 Order at ¶ 12. Based on data collected in the proceeding, it concluded there was
reasonable competition, now or at least over the medium term, in TDM services with
bandwidth above 45 Mbps,5 all transport services, and all Ethernet services. See id.
at ¶¶ 16, 73–76. It also concluded that a competitor with nearby BDS facilities
restrained prices for lower bandwidth TDM services in the short term and provided
reasonable competition in three to five years. See id. at ¶¶ 13–15. The FCC further
stated that “ex ante pricing regulation is of limited use—and often harmful—in a
dynamic and increasingly competitive marketplace” and that “[w]e intend to apply ex
ante regulation only where competition is expected to materially fail to ensure just
and reasonable rates.” Id. at ¶¶ 4, 86.
5
Throughout the 2017 Order, the FCC referred to two types of lower bandwidth
phone lines: “Digital Signal 1” or “DS1,” referring to a line with a data rate of
approximately 1.5 Mbps; and “Digital Signal 3” or “DS3,” referring to a line with a
data rate of approximately 45 Mbps. See 2016 Notice at ¶ 25 (defining those terms).
-7-
The FCC took three actions in light of these conclusions regarding competition.
First, it continued forbearance from ex ante regulation6 of higher bandwidth TDM
services and of all Ethernet services, emphasizing that packet-based
telecommunications services remain subject to Title II regulations. Id. at ¶¶ 87–89.
Second, it extended its forbearance from ex ante regulation to include TDM transport
services. Id. at ¶¶ 90–93. Third, it established a Competitive Market Test for lower
bandwidth TDM channel termination services. Id. at ¶¶ 94–171.
When creating the Competitive Market Test, the FCC assessed what it believed
would be the (1) relevant geographic area, (2) the relevant data, and (3) the
appropriate level of competition. See id. On the first issue, it narrowed the relevant
geographic area from MSAs to counties. See id. at ¶¶ 108–16. On the second issue,
it used its “Form 477” broadband service availability data7 along with data collected
in the rulemaking proceeding for the initial assessment of competitiveness, and it
required reliance on the Form 477 data for later reassessments. See id. at ¶¶ 103–07.
On the third issue, it concluded that a single competitor, even if merely within a half
mile of a set of customers rather than directly servicing those customers, significantly
affected prices such that the costs of price caps would exceed the benefits in that
market. See id. at ¶¶ 117–29. Relatedly, the FCC also concluded in its competition
analysis that a residential cable network could substitute for low-bandwidth BDS for
some customers. See id. at ¶¶ 27–31.
6
“Ex ante regulation” refers to any regulation of prices in advance, including
price caps.
7
The FCC requires all facilities-based broadband providers to report every
census block where they offer broadband exceeding 200 kbps in either upload or
download bandwidth speed. 2017 Order at ¶ 105. The FCC collects this data semi-
annually and makes the data available to the public. Id.
-8-
Based on these conclusions, the FCC established two criteria for
competitiveness. First, a business location is competitive if a competitive provider’s
facilities are within half a mile. Id. at ¶ 132. Second, a business location is
competitive if a cable provider’s facilities are within the same census block.8 Id. at
¶ 133.
After deciding on its Competitive Market Test, the FCC engaged in data
analysis to determine the thresholds for each of the criteria. Id. at ¶¶ 135–44. It
examined what thresholds for the two criteria have the least risk of both
overregulation on one hand and underregulation on the other. See id. The FCC then
selected thresholds that were higher than any of its analytics demanded “out of an
abundance of caution” and so “that counties [it] deregulate[s] will be predominantly
competitive.” Id. at ¶¶ 141–42. Thus, it determined that a county is competitive if
50% of the BDS customer locations within that county have a facilities-based
competitor within half a mile (as opposed to a competitor who relies on ILECs in the
area and lacks its own facilities nearby) or if 75% of the census blocks within that
county have cable broadband service. See id. The FCC also directed the FCC’s
Wireline Competition Bureau to retest non-competitive counties every three years to
determine competitiveness. See id. at ¶¶ 145–52.
For counties deemed non-competitive under the Competitive Market Test, the
FCC left price cap regulation in place with some modifications. First, it declined to
re-impose price caps in any counties where it had previously granted related relief
under the Pricing Flexibility Order. Id. at ¶¶ 178–82. Second, it extended some
8
The FCC reasoned that a cable provider has incentive to invest in serving
locations within a census block where it is already present. 2017 Order at ¶ 133. A
census block is the smallest geographic measurement used by the United States
Census Bureau for data collection, generally referring to “statistical areas bounded
by visible features.” U.S. Census Bureau, Geographic Terms and Concepts - Block,
https://www.census.gov/geo/reference/gtc/gtc_block.html.
-9-
limited pricing flexibility to all non-competitive counties. Id. at ¶¶ 183–86. Third,
the FCC prohibited non-disclosure agreements (“NDAs”) in specified BDS contracts
in non-competitive counties, to the extent the NDAs forbade or prevented disclosure
of information to the FCC. Id. at ¶¶ 187–96. Finally, it set the X-factor for annual
price cap adjustments to DS1 and DS3 end user channel terminations at 2%. Id. at
¶¶ 197–99.
In addition to creating a Competitive Market Test, the FCC also removed the
tariff (filing) requirement from a few services. It expanded its removal of the tariff
requirement for BDS with higher bandwidth, extending that relief to all companies
rather than just those companies that had successfully petitioned for such relief about
a decade ago. Id. at ¶¶ 155–59. It also newly removed the tariff requirement for
transport services and for any BDS within counties previously granted certain relief
under the Pricing Flexibility Order. Id. at ¶¶ 160–65.
After the FCC published the 2017 Order in the Federal Register, the respective
petitioners sought review in different circuits. The FCC notified the Judicial Panel
on Multidistrict Litigation of the multiple petitions for review, and the panel
consolidated proceedings in this Court for review. The nature of the ILEC
Petitioners’ and CLEC Petitioners’ challenges to the 2017 order were very different,
leading several petitioners in each group to intervene in opposition to the relief
sought by the other group.9
9
The following entities intervened to oppose the ILEC Petitioners: Ad Hoc
Telecommunications Users Committee; BT Americas, Inc.; Granite
Telecommunications, LLC; INCOMPAS; Sprint Corporation; and Windstream
Services, LLC. CenturyLink, Inc., intervened along with non-petitioners AT&T
Services, Inc., and USTelecom to oppose the CLEC Petitioners. Some stakeholders
in the cable industry (NCTA-The Internet & Television Association and Comcast
Corporation) also intervened to oppose the CLEC Petitioners.
-10-
II. Standard of Review
On review of an agency order, we must “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). An agency
rule is arbitrary and capricious “if the agency has relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
“A court is not to ask whether a regulatory decision is the best one possible or
even whether it is better than the alternatives.” FERC v. Elec. Power Supply Ass’n,
136 S. Ct. 760, 782 (2016). Instead, we ask whether the agency “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.’” Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962)). We cannot “supply a reasoned basis for the agency’s
action that the agency itself has not given” but may “uphold a decision of less than
ideal clarity if the agency’s path may reasonably be discerned.” Id. (citations
omitted).
“[W]hen the resolution of the dispute involves primarily issues of fact and
analysis of the relevant information requires a high level of technical expertise, we
must defer to the informed discretion of the responsible federal agencies.” Minnesota
Pub. Utils. Comm’n. v. F.C.C., 483 F.3d 570, 577 (8th Cir. 2007) (alteration in
original) (quoting Cent. S. Dakota Co-op. Grazing Dist. v. Sec’y of U.S. Dep’t of
Agric., 266 F.3d 889, 894–95 (8th Cir. 2001)). Our review is narrow in scope and we
will not “substitute our judgment for that of the agency.” Id. (quoting same).
-11-
If a petitioner challenges the agency’s compliance with the Administrative
Procedure Act’s (“APA’s”) procedural requirements, then de novo review is required
“because compliance ‘is not a matter that Congress has committed to the agency’s
discretion.’” United States v. Brewer, 766 F.3d 884, 887–88 (8th Cir. 2014) (quoting
Iowa League of Cities v. E.P.A., 711 F.3d 844, 872 (8th Cir. 2013)).
III. Analysis
The CLEC Petitioners’ arguments fit into five categories: (1) the adequacy of
notice, (2) the ending of ex ante regulations for transport services, (3) the Competitive
Market test, (4) the rules regarding Ethernet services, and (5) the Interim Wholesale
Access Rule. The ILEC Petitioners’ arguments solely concern the X-factor. We
address each of these issue categories in turn.
A. Notice
The CLEC Petitioners advance three specific arguments as to lack of sufficient
notice: (1) the 2017 Order was broadly deregulatory while the 2016 Notice requested
comment on a heightened regulatory scheme; (2) they had no meaningful opportunity
to analyze the specific criteria adopted in the 2017 Order; and (3) at minimum, they
had no notice of the complete deregulation of transport services.
The APA provides the following requirements for notice:
(b) General notice of proposed rule making shall be published in the
Federal Register, unless persons subject thereto are named and either
personally served or otherwise have actual notice thereof in accordance
with law. The notice shall include—
(1) a statement of the time, place, and nature of public rule
making proceedings;
-12-
(2) reference to the legal authority under which the rule is
proposed; and
(3) either the terms or substance of the proposed rule or a
description of the subjects and issues involved.
5 U.S.C. § 553. “[A]n agency’s notice is sufficient if it allows interested parties to
offer ‘informed criticism and comments.’” Missouri Limestone Producers Ass’n, Inc.
v. Browner, 165 F.3d 619, 622 (8th Cir. 1999) (quoting Northwest Airlines, Inc. v.
Goldschmidt, 645 F.2d 1309, 1319 (8th Cir. 1981)).
1. Notice of a broadly deregulatory order
The CLEC Petitioners complain that the 2016 Notice requested comment on
a heightened regulatory scheme while the 2017 Order was broadly deregulatory. A
somewhat Orwellian approach to proposing rules in the 2016 Notice creates much of
the dispute here. One of the FCC’s stated goals was “large scale de-regulation,” but
it requested comment on several suggestions that would have increased regulation.
2016 Notice at ¶ 4; e.g., id. at ¶ 354. The FCC, whose composition changed in 2017,
emphasized the stated goal in the 2017 Order and followed only the proposals in the
2016 Notice that adhered to that stated goal. The CLEC Petitioners argue that we
should vacate the 2017 Order because the 2016 Notice requested comment on a
heightened regulatory scheme and that it was impossible for them to anticipate
deregulation. We find it significant that the CLEC Petitioners base their argument
here on their expectation that the FCC in 2017 would not follow through on its 2016
stated goal.
More specifically, the 2016 Notice proposed “large scale de-regulation” that
“goes hand in hand with the use of tailored rules where competition does not exist.”
2016 Notice at ¶ 4. It observed that “the data and our analysis suggests that
competition is lacking in BDS at or below 50 Mbps in many circumstances” and
requested comment on the issue. Id. at ¶ 271 & n.690. It stated that the Pricing
-13-
Flexibility Order’s “collocation test,” which assessed competitive equipment
collocated with an ILEC’s equipment, (1) failed because it was “a poor proxy for
predicting the entry of facilities-based competition,” (2) “retained unnecessary
regulation in areas that were very likely to be competitive,” and (3) “deregulated over
large areas where competition was unlikely to occur.” Id. at ¶ 275. The 2016 Notice
requested comment on whether census blocks were an appropriate geographic area
for a Competitive Market Test or whether a larger or more granular area was
appropriate, strongly implying that MSAs were too broad by stating that “[o]ur goal
is to learn from past experiences and to not repeat the errors of the 1999 pricing
flexibility regime by granting relief too broadly to cover areas where competition is
not present or unlikely to occur.” Id. at ¶¶ 289–90.
The CLEC Petitioners necessarily argue at a high level of abstraction because
their arguments are based on their own interpretation of the 2016 Notice. The CLEC
Petitioners read these provisions in light of their understanding that the FCC, as
composed in 2016, believed that the 1999 Pricing Flexibility Order was wrong and
did not really mean to pursue large-scale deregulation.
We reject their arguments because their reading of the 2016 Notice entails an
interpretation whose basis is not present in the text. The 2016 Notice discussed how
the prior test was both over-inclusive and under-inclusive, which implies shifting the
rules in favor of a better-tailored deregulatory approach. The 2016 Notice’s only
limits on new criteria for a Competitive Market Test were its disavowal of both the
collocation test from the Pricing Flexibility Order and the MSA geographic area.
2016 Notice at ¶¶ 275, 290. The CLEC Petitioners may be correct that the FCC, as
composed in 2016, would have expanded the use of price caps and applied a stricter
competitive market test favoring their use, but nothing in the 2016 Notice compelled
the FCC to abandon “large scale de-regulation” in favor of that approach. From the
2016 Notice’s plain text, the CLEC Petitioners had adequate notice of large scale
deregulation.
-14-
2. Notice of specific criteria
The CLEC Petitioners argue that the criteria the FCC adopted in the
Competitive Market Test were not proposed in the 2016 Notice. The FCC applied
two criteria for the Competitive Market Test: (1) competitive providers within half
a mile, or (2) competitive cable providers within the relevant census block. See 2017
Order at ¶¶ 132–33. If the 2016 Notice “described in significant detail the factors that
would animate a new standard,” and the 2017 Order used those factors, then the
commenters had adequate notice of the final rule despite not knowing its final
application of those factors. See United States Telecom Ass’n v. F.C.C., 825 F.3d
674, 735 (D.C. Cir. 2016).
Broadly speaking, the 2017 Order followed the 2016 Notice’s framework for
the new standard it adopted. As the 2016 Notice proposed, the 2017 Order set
“objective criteria,” “subject[ing] markets determined competitive to minimal
regulation,” and “subject[ing] relevant markets, determined non-competitive, to
specific rules.” 2016 Notice at ¶ 270.
The 2016 Notice’s request for comment described the type of criteria it was
considering:
On the criteria for the Competitive Market Test, we invite comment.
Initially, we are proposing a test, which focuses on multiple factors,
including bandwidth, different customer classes, business density, and
the number of providers in areas consisting of census blocks where each
block in the relevant market meets the specified criteria. As described
above, the data and our analysis suggests that competition is lacking in
BDS at or below 50 Mbps in many circumstances, and that competition
is present in BDS above 50 Mbps in many circumstances. Such evidence
will guide how the Commission uses product market characteristics in
applying the Competitive Market Test to a relevant market. We seek
comment on the appropriate factors to include in the test and, in
-15-
particular, the appropriate weight to attribute to the various factors in
application of the test.
2016 Notice at ¶ 271 (footnote omitted). The 2016 Notice then sought comment on
many particular facets of these criteria categories, including (1) whether a 50 Mbps
bandwidth demarcation was the correct demarcation, id. at ¶ 285, (2) the number of
competitors necessary for the area to be deemed competitive, id. at ¶ 294, (3) whether
a nearby cable company with DOCSIS 3.0 (a particular standard for sending high
speed internet over cable wires) on its network counted as a competitor, id., and (4)
whether a census block was the appropriate geographic area for the Competitive
Market Test or whether the test should use a larger or more granular area, id. at
¶¶ 287–91.
At a broad level, the Competitive Market Test adopted in the 2017 Order
addressed the multiple factors suggested in the 2016 Notice: “bandwidth, different
customer classes, business density, and the number of providers in areas consisting
of census blocks where each block in the relevant market meets the specified
criteria.” 2016 Notice at ¶ 271. The Competitive Market Test assessed the number
of providers in the area. See 2017 Order at ¶¶ 132–33. It also assessed bandwidth
indirectly, rejecting the suggestion of a 50 Mbps demarcation but applying regulation
to BDS at or below 45 Mbps.10 See id. at ¶¶ 130–33. It narrowed the geographic
area, but it rejected the suggestion of a census block area, finding that a county was
a sufficiently granular area without creating administrative complications that arose
with smaller units. Id. at ¶¶ 108–16. The FCC completely rejected criteria based on
customer classes or business density, reasoning “they are largely unnecessary to
achieve our policy goals and, importantly, [] including them in a competitive market
test would make it administratively unwieldy.” Id. at ¶ 99 & n.305.
10
The 2017 Order demarcated higher and lower bandwidth at 45 Mbps rather
than 50 Mbps because existing regulation ended there and because it found evidence
in the record that services above a DS3 were competitive. See 2017 Order at ¶ 87.
-16-
At a more narrow level, both criteria in the Competitive Market Test adhered
to the particularized requests for comment in the 2016 Notice. While not all of those
particularized requests fell under the “Competitive Market Test” subheading of the
2016 Notice, all of them were within the 2016 Notice.
It is true that the first criterion in the 2017 Order (regarding nearby
competitors) is not in the Competitive Market Test subsection of the 2016 Notice.
Despite that omission, other subsections of the 2016 Notice found “that fiber-based
competitive supply within at least half a mile generally has a material effect on prices
of BDS with bandwidths of 50 Mbps or less, even in the presence of nearby
UNE-based [relying on “unbundled network elements” from a major competitor] and
HFC-based [“hybrid fiber-coaxial” or cable] competition.” 2016 Notice at ¶¶ 161,
211. The 2016 Notice then requested comment on “how close competition must be
to place material competitive pressure on supply at a given location.” Id. at ¶ 215.
That request for comment is precisely on point to the adopted criterion. The 2016
Notice would have been better organized if it had placed that request for comment
under the “Competitive Market Test” subsection. Nevertheless, because the FCC
requested comment on the proximity of competitors, the failure to include that
concept in all relevant subsections is not fatal to the notice afforded the final rule.
We agree with our sister circuit that a significant difference exists between instances
“where the [notice] expressly asked for comments on a particular issue” and where
the notice mentioned an issue but “gave no indication that the agency was considering
a different approach.” CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1081
(D.C. Cir. 2009) (collecting cases). Because the 2016 Notice expressly asked for
comments on this particular issue, the CLEC Petitioners had adequate notice of this
criterion.
The second criterion in the 2017 Order, regarding nearby cable companies, is
in the 2016 Notice’s Competitive Market Test subsection. The 2016 Notice requested
comment on whether “two facilities-based competitors” are sufficient for competition,
-17-
whether to weigh “competition from a cable company” differently than other
competition, and whether it is “enough for a cable company to just have DOCSIS 3.0
coverage over their HFC network in the area.” 2016 Notice at ¶ 294. After reviewing
the comments, the FCC essentially answered those three questions with yes, no, and
yes, respectively. 2017 Order at ¶¶ 29, 120–21, 133. The possibility that the FCC
might have selected different answers in 2016 does not alter the conclusion that the
CLEC Petitioners had notice of the range of alternatives being considered.
For the foregoing reasons, the CLEC Petitioners had adequate notice of the
adopted Competitive Market Test.
3. Notice of ending ex ante regulation of transport services
The CLEC Petitioners’ third argument challenging the sufficiency of notice
is that they had no notice of the complete deregulation of transport services. The
CLEC Petitioners are correct that there is no notice of completely ending ex ante
regulation of transport services in the 2016 Notice. The 2016 Notice proposed a
Competitive Market Test for both channel termination services and transport services.
2016 Notice at ¶ 278. The FCC argues that it gave adequate notice of the different
treatment for transport services because the 2016 Notice stated that transport services
are more competitive than channel termination services. Id. at ¶ 281. We reject this
argument because the 2016 Notice also proposed addressing the two services under
the same regulations notwithstanding the difference in the very next paragraph. Id.
at ¶ 282. Nothing in the 2016 Notice requests comment on treating the two services
differently. Yet, the 2017 Order treated transport services differently when it ended
ex ante regulation of TDM transport services. See 2017 Order at ¶¶ 90–93. Thus, the
FCC failed to provide adequate notice of its ending of ex ante regulation of transport
services.
-18-
We reject the FCC’s suggestion that any notice of the subjects and issues
involved is sufficient notice. The APA states that an agency must include “either the
terms or substance of the proposed rule or a description of the subjects and issues
involved.” 5 U.S.C. § 553(b)(3). We have stated that “[t]he notice should be
sufficiently descriptive of the ‘subjects and issues involved’ so that interested parties
may offer informed criticism and comments.” Northwest Airlines, 645 F.2d at 1319
(quoting Ethyl Corp. v. E.P.A., 541 F.2d 1, 48 (D.C. Cir. 1976) (en banc)). As the
Tenth Circuit has explained, § 553(c) constrains what level of notice satisfies
§ 553(b)(3) because the notice must be sufficient to “give[] interested persons an
opportunity to participate in the rule making.” See Mkt. Synergy Grp., Inc. v. United
States Dep’t of Labor, 885 F.3d 676, 681 (10th Cir. 2018) (quoting 5 U.S.C.
§ 553(c)).11 Because the FCC did not propose completely ending ex ante regulation
of transport services, it did not allow for informed participation by interested parties
in that portion of the rulemaking, and its notice was insufficient.
4. Prejudice
The FCC alternatively argues that, even if the 2016 Notice did not satisfy its
obligations under the APA, the FCC’s release of a draft of the 2017 Order three
weeks before adoption made any procedural error harmless since the FCC was able
to review and address comments on the draft 2017 Order. See 5 U.S.C. § 706 (“due
account shall be taken of the rule of prejudicial error”). We reject this argument
11
Other courts have focused this fair notice inquiry on the rule rather than the
notice, asking whether the rule is a “logical outgrowth” of the proposal rather than
whether the parties had fair notice of the final rule. See, e.g., CSX Transp., 584 F.3d
at 1079. There is no meaningful difference between the two approaches. See Long
Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). Thus, we do not
separately address the CLEC Petitioners’ arguments about whether the remainder of
the final rule was a logical outgrowth because our discussion of notice addresses the
substance of those arguments.
-19-
because we do not believe that the FCC providing a few weeks to review the 2017
Order cured the deficient notice regarding transport services.
The only authority the FCC cites in support of its harmless error argument
discussed the adequacy of notice and did not address the timing issue here. See Nat’l
Ass’n of Broadcasters v. F.C.C., 789 F.3d 165, 176–77 (D.C. Cir. 2015) (holding
there was no prejudice where an FCC bureau released a staff-level notice of a
proposed rule, and the FCC later adopted the rule without issuing its own notice).
Nothing in that opinion suggests that a three-week notice of a complex issue is
sufficient. See id. We have not found any other authority supporting such a
contention, and we are also not persuaded that a few weeks of review cured the
deficient notice regarding transport services here. The APA’s procedural rules are
designed to allow parties the opportunity for informed criticism and comments, see
CSX Transp., 584 F.3d at 1083, and creating any exceptions to the procedural
requirements would allow agencies to significantly alter the course of a proceeding
without authorization. We hold that the early release of a draft order does not cure
the harm from inadequate notice under these facts.
Some intervenors raised a separate prejudice argument, insisting that the CLEC
Petitioners failed to demonstrate prejudice because they only vaguely referenced
additional “economic analysis” regarding transport services without explaining how
such analysis would differ from their numerous submissions in the proceeding. While
the intervenors may be correct that everything that needed to be said regarding
transport services was said during the twelve years preceding the 2017 Order, the law
regarding prejudice under the APA ensures procedural integrity. Losing the
opportunity to dissuade an agency from adopting a particular rule is prejudicial. See
CSX Transp., 584 F.3d at 1083 (“[T]hey were prejudiced by their inability to persuade
the Board not to adopt the four-year rule in the first place, thus requiring them to
litigate the issue in individual proceedings.”). In a slightly different context, this
Court has applied similar reasoning, finding injury for purposes of standing when an
-20-
APA procedural right is violated. See Iowa League of Cities, 711 F.3d at 870–871
(violation of a procedural right constitutes injury in fact where the procedure is
designed to protect some threatened concrete interest, including the ability to meet
one’s regulatory obligations). Requiring more than a procedural violation of the
notice requirement in order to find prejudice would risk virtually repealing the APA’s
procedural requirements. See Sprint Corp. v. F.C.C., 315 F.3d 369, 376–77 (D.C.
Cir. 2003).
It may be true that the numerous comments received in the proceeding already
discussed all relevant aspects of transport services. Other parties’ comments may
have raised the prospect of treating transport services differently, including the
decision adopted in the 2017 Order, and the CLEC Petitioners may have responded
to those comments. These comments, however, would not cure inadequate notice.
Agencies “cannot bootstrap notice from a comment.” Shell Oil Co. v. E.P.A., 950
F.2d 741, 760 (D.C. Cir. 1991) (quoting Small Ref. Lead Phase-Down Task Force v.
U.S. E.P.A., 705 F.2d 506, 549 (D.C. Cir. 1983)). The APA requires interested
parties wishing to play a role in the rulemaking process to comment on the agency’s
proposals, not on other interested parties’ proposals. We cannot divine whether the
CLEC Petitioners have any additional arguments against ending ex ante regulation
of transport services, but we believe they were prejudiced because any chance to
make their case did not come from the FCC’s notice.
5. Conclusion regarding the adequacy of notice
We grant the petitions of the CLEC Petitioners on the notice issue, in part,
vacating solely the portions of the final rule affecting TDM transport services and
remanding them to the FCC for further proceedings. We otherwise deny the petitions
of the CLEC Petitioners on the remainder of the notice issue.
-21-
B. Ex Ante Regulations for Transport Services
The CLEC Petitioners also challenged the merits of the 2017 Order’s rules
regarding ex ante regulations for transport services. Because we hold that the FCC
provided inadequate notice of this issue, and we are remanding it on that basis, we do
not need to reach this argument.
C. The Competitive Market Test
The CLEC Petitioners challenge the economic theory behind the Competitive
Market Test, the respective merits of the criteria in the test, the reasonableness of
finding duopolies competitive under the test, and the adequacy of the cost-benefit
analysis in the test. We address each of those challenges in turn.
1. Economic theory
The FCC did not assess the ILECs’ market power before granting regulatory
relief, and the CLEC Petitioners insist that this was an error. The argument presumes
the FCC is bound to apply the traditional market power framework from the
guidelines for horizontal mergers issued by the Federal Trade Commission and the
U.S. Department of Justice (the “Horizontal Merger Guidelines”). The CLEC
Petitioners are correct that the FCC has applied that framework in other orders in
other contexts, such as Petition of Qwest Corp. for Forbearance Pursuant to 47
U.S.C. § 160(c) in the Phoenix, Arizona Metro. Statistical Area, 25 FCC Rcd. 8622
(2010) (the “Qwest/Phoenix unbundling adjudication”), but nothing indicates the
FCC was bound to extend that framework to the BDS context. The Pricing Flexibility
Order specifically rejected the traditional market power framework in the BDS
context, finding that the benefits of regulatory relief outweighed any costs of granting
relief while an incumbent still had some market power, see Pricing Flexibility Order
-22-
at ¶¶ 90–91, and there is no evidence in the record that the FCC adopted another
economic rule in the BDS context until the 2017 Order.
Perhaps recognizing this problem, the CLEC Petitioners also advocate a
finding that the FCC adopted the traditional market power framework since it cited
to the Horizontal Merger Guidelines in the 2017 Order. The FCC relies on its overall
disavowal of traditional antitrust principles in the 2017 Order, observing that it was
only informed by those principles on a limited basis and did not adopt them
completely. The CLEC Petitioners question whether that disavowal was effective
based on citations in the 2017 Order to the Horizontal Merger Guidelines.
The CLEC Petitioners’ attempts to impose the Horizontal Merger Guidelines
on the 2017 Order ignore the portions of the 2017 Order that rejected the traditional
market power framework. The FCC criticized the industry concentration measures
of a traditional market power framework because, viewed in isolation, they are
“largely poor indicators of whether market conditions exist that will constrain
business data services prices, and overstate the competitive effects of concentration.”
2017 Order at ¶ 66. The FCC offered three reasons for this conclusion: (1) nearby
facilities can “expand [their] presence to timely reach a customer,” (2) a competitor
does not need to be physically serving a location to act as a competitive constraint on
the market, and (3) concentration metrics largely reflect power in declining “legacy”
TDM services. Id. at ¶ 67.
The CLEC Petitioners advance three arguments against the FCC’s approach,
but none of them are persuasive.
First, the CLEC Petitioners accuse the FCC of wholly disregarding market
power after the FCC dismissed the relevance of market concentration and the
traditional market power framework. This accusation is incorrect because the FCC
addressed two aspects of market power: deciding that no market power existed in
-23-
Ethernet services, see id. at ¶ 67, and concluding that ILEC market power in TDM
services had been largely eliminated and was declining where it remained, see id. at
¶ 84.
Second, the CLEC Petitioners argue that the FCC’s own expert report
undermined its conclusions. The report stated that ILECs charge higher prices for
lower bandwidth TDM BDS in areas without a competitor, reflecting use of market
power. Importantly, this conclusion from the report did not survive peer review. See
id. at ¶ 74. The problem with the CLEC Petitioners’ argument, as well as with
drawing definitive conclusions from the expert report, is that the FCC recognized
different fixed costs in serving different customers may be causing the increased
prices in certain areas. See id. at ¶ 75 & n.243. The FCC’s expert report was unable
to completely account for this potential alternate cause for high prices and thus a
causal connection could not be established. See id.
Finally, the CLEC Petitioners accuse the FCC of “not even attempt[ing] to
show that its ‘nearby potential competitors’ currently drive prices to ‘reasonably
competitive’ levels, or will ever do so in the near term.” This accusation wrongly
presumes that the FCC needed to find competition in the short term. If the FCC
chose to follow a traditional market power framework, then it would need to look to
short term results. Under the public interest balancing that the FCC applied, however,
it could weigh competition in the medium term, meaning that the omission of short
term assessments is not fatal to its analysis.
In sum, the CLEC Petitioners offer no persuasive reason to convert mere
citations to the Horizontal Merger Guidelines into wholesale adoption of an economic
theory that the FCC explicitly rejected, especially in light of the multiple reasoned
-24-
rejections of both the CLEC Petitioners’ economic theory and their evidence.12 Thus,
the FCC was not bound to apply the traditional market power framework, either by
past orders or by partial use of the Horizontal Merger Guidelines. We hold that the
FCC applied a permissible economic theory for its Competitive Market Test.
2. Reasonableness of the first criterion of the Competitive Market Test
The first criterion of the Competitive Market Test stated that a business
location is competitive if a competitive provider’s facilities are within half a mile.
2017 Order at ¶ 132. The dispute here is whether the evidence shows that the CLEC
Petitioners cannot economically build out to low bandwidth customers in areas
deemed competitive by the Competitive Market Test. The FCC did not believe the
CLEC Petitioners’ evidence, and the CLEC Petitioners protest that the evidence
compels a finding in their favor.
We note that the FCC made several findings in support of its conclusions. The
FCC observed in the 2017 Order that most of the buildings at issue are far closer to
competitive fiber than half a mile, as the average distance between buildings served
by ILEC BDS and a competitive fiber line is 364 feet. Id. at ¶ 42. In addition, half
of these buildings are within 88 feet of competitive fiber, and the next quarter are
within 456 feet, leaving only the last quarter of buildings at issue in the Competitive
Market Test approaching a half mile distance. See id. The FCC also cited evidence
12
The Third Circuit case cited by the CLEC Petitioners is not on point. It
involved an order where the FCC applied the Horizontal Merger Guidelines for local
television ownership and a completely different economic theory for local radio
ownership that contradicted the Horizontal Merger Guidelines without explaining
why it adopted two different economic theories to assess ownership limits in the same
Order. See Prometheus v. F.C.C., 373 F.3d 372, 433 (3d Cir. 2007). The 2017 Order
did not rely on two contrary economic theories and thus did not suffer from the same
defect found in Prometheus.
-25-
that some competitors will build as far as a mile out, although it noted that these
competitors are an exception to the general trend. See id. at ¶ 41 & n.136. The FCC
believed that these nearby networks exist because competitive providers build their
fiber rings so that they can market to multiple customers near a lateral line,
aggregating demand for a build out. Id. at ¶ 42, 54, 119 n.363. The FCC also
predicted that cable’s aggressive build outs since the collection of data in 2013 had
likely brought most of the locations that were within half a mile of competition in
2013 within a quarter mile of competition in 2017. See id. at ¶ 43. The FCC argues
that the CLEC Petitioners’ studies inflate costs by selecting the most expensive build
(entirely underground lines), presuming a separate lateral line for each individual low
bandwidth customer, and treating the main fiber ring as part of the cost of reaching
new customers rather than as an existing “sunk” cost near a potential new customer.13
The CLEC Petitioners focus on evidence about what conditions justify build-
outs while dismissing the concept of building circuitous routes as the exception rather
than the rule. They argue that their networks are near low-bandwidth customers
because they built lines near high-bandwidth customers in the same area, while the
FCC argues that the CLEC Petitioners’ networks are near low-bandwidth customers
because they build networks to facilitate lower cost expansion to low-bandwidth
customers. It is difficult to parse the evidence because the costs of building to a low
bandwidth customer rely heavily on what costs count as sunk costs and on how
expensive of a build-out each company performs. The evidence in support of both
arguments is credible. As a result, there is no reason the FCC was obligated to favor
the CLEC Petitioners’ interpretation of the evidence over the interpretation it
adopted, and the FCC was not arbitrary and capricious in adoption of its first
criterion.
13
The FCC refers to fixed costs already incurred before serving a new customer
as “sunk” costs in wireline telecommunications. 2017 Order at ¶ 120 & nn.370–71.
-26-
3. Reasonableness of the second criterion of the Competitive Market
Test
The second criterion of the Competitive Market Test stated that a business
location is competitive if a cable provider’s facilities are within the same census
block. 2017 Order at ¶ 133. The CLEC Petitioners argue that this criterion is wrong
because cable is not in the BDS market and is generally not building fiber BDS
connections to low bandwidth areas.
The FCC freely conceded in the 2017 Order that Ethernet over Hybrid Fiber-
Coaxial (“EoHFC”) (cable’s symmetrical connection that sometimes has performance
guarantees) and cable’s best efforts network (cable’s asymmetrical residential
connection without performance guarantees) are not in the same market as BDS
because they are not perfect substitutes. Id. at ¶¶ 27–31. The FCC also observed,
however, that businesses substitute EoHFC and best efforts service for BDS anyway
at lower bandwidths, where they are willing to sacrifice some of the service
guarantees of BDS for a lower price. See id. Thus, it concluded that cable companies
are building fiber connections to target high-bandwidth locations while using their
lower cost options to target low-bandwidth locations. See id. at ¶¶ 27–31, 55–62.
The CLEC Petitioners correctly characterize cable’s relationship to BDS, but
nothing in their arguments impugns the FCC’s analysis. As the intervening cable
stakeholders observed, the fact that their services are not the same as BDS does not
undermine the other fact that cable services are increasingly functioning as substitutes
for BDS anyway. See id. Thus, in view of the FCC’s entire analysis rather than the
portions selectively quoted by the CLEC Petitioners, the FCC was not arbitrary and
capricious in adoption of its second criterion.
-27-
4. Reasonableness of finding duopolies competitive
The CLEC Petitioners protest that duopolies (markets with only two
competitors) have anticompetitive effects and that a Competitive Market Test cannot
reasonably produce duopolies. As a procedural matter, they again cite the
Qwest/Phoenix unbundling adjudication, arguing that the FCC was compelled to
disfavor duopolies in this context based on its prior statements in another context.
This is wrong both because the Qwest/Phoenix unbundling adjudication was focused
on a particular market at a particular time and because, by its own terms, it has no
binding effect on this BDS proceeding. Even if the Qwest/Phoenix unbundling
adjudication were somehow binding, it did not create any bright line rule about when
duopolies are competitive. 2017 Order at ¶ 121. Thus, the FCC was not compelled
to agree with the CLEC Petitioners that the Competitive Market Test cannot
reasonably produce duopolies.
On the merits, the problem with the CLEC Petitioners’ duopoly argument is
that it presumes their conclusion about high incremental costs. The FCC observed
that the sunk costs to reach an area are high while the incremental costs of supplying
new customers are low, causing ILECs to restrict prices to those low incremental
costs when at least one competitor has spent the sunk costs. Id. at ¶ 120. As a result,
it concluded that duopolies can sufficiently increase competition to make regulation
unnecessary. The CLEC Petitioners may reasonably disagree with the FCC on what
the evidence shows regarding incremental costs, but their disagreement is no basis for
finding the FCC’s interpretation of a conflicting record to be arbitrary and capricious.
Furthermore, even if the FCC misinterpreted the evidence on incremental costs,
it receives deference when it predicts what will happen in the market in the future.
“[J]udicial deference to agency action is ‘especially important’ when [an] agency’s
judgments are ‘predictive.’” Southwestern Bell Tel. Co. v. F.C.C., 153 F.3d 523, 547
(8th Cir. 1998) (quoting City of St. Louis v. Dep’t of Transp., 936 F.2d 1528, 1534
-28-
(8th Cir. 1991)). The FCC explained in the 2017 Order that it relied on the
Competitive Market Test and the related market data to predict what will happen in
the market. 2017 Order at ¶ 124. The FCC also cited sufficient evidence to justify
removing ex ante regulation in a market with two competitors. Regardless of whether
its predictions based on uncertain data prove true, the FCC is not acting arbitrarily
and capriciously when it makes such predictions in choosing how to regulate the
market under its jurisdiction.
5. Cost-benefit analysis
The CLEC Petitioners further argue that the FCC’s cost-benefit analysis
supporting the 2017 Order failed to quantify the costs or measure them against the
benefits. The CLEC Petitioners seemingly shift their argument in their reply brief,
focusing on undervaluation of the benefits and alleging overvaluation of costs.
Although this Court has not elaborated on the appropriate standard of review for
challenges to an agencies’ economic calculations, the D.C. Circuit has deferred to
agencies, allowing them to “arrive at a cost figure within a broad zone of reasonable
estimate.” Nat’l Ass’n of Home Builders v. E.P.A., 682 F.3d 1032, 1040 (D.C. Cir.
2012) (quoting Nat’l Wildlife Fed’n v. E.P.A., 286 F.3d 554, 563 (D.C. Cir. 2002)).
Under this deferential review, an agency need not quantify all costs “with rigorous
exactitude,” but it must consider them all. See GTE Serv. Corp. v. F.C.C., 782 F.2d
263, 273 (D.C. Cir. 1986). We agree with this approach.
The problem with the CLEC Petitioners’ argument is that it presumes that only
price caps produce affordable rates, while the FCC found that competition would
drive prices to competitive levels. 2017 Order at ¶ 102. The FCC agreed that the
benefits of price caps outweighed the costs in areas with few competitive alternatives,
which is why it adopted a Competitive Market Test. See id. at ¶ 101. It further
explained that BDS has unique characteristics that make price cap regulations highly
unlikely to be accurate measures of the correct price in a competitive market.
-29-
Specifically, the FCC explained BDS has “high uncertainty due to frequent and often
large unforeseen changes in both customer demand for services and network
technologies that are hard to anticipate and hedge against in contracts with
customers,” 2017 Order at ¶ 127, “a complex set of products and services, which are
tailored to individual buyers,” id., as well as “costs of provision that vary
substantially across different customer-provider combinations,” id., and “large
irreversible sunk-cost investments that a provider is required to make before offering
service,” id. Reasonable minds could disagree with the FCC’s cost-benefit analysis,
but there is nothing unreasonable about its conclusions, as it considered all of the
relevant factors. Thus, the FCC was not arbitrary and capricious in its cost-benefit
analysis.
6. Conclusions regarding challenges to the Competitive Market Test
We recognize that the relevant data presents radically different pictures of the
competitiveness of the market depending on the economic theory applied and the
weight given to conflicting pieces of evidence. But the FCC may rationally choose
which evidence to believe among conflicting evidence in its proceedings, especially
when predicting what will happen in the markets under its jurisdiction. Thus, we
deny the petitions for review as to the Competitive Market Test because the FCC’s
resolution of competing evidence was not arbitrary and capricious.14
14
Because we find that the removal of ex ante regulation through a Competitive
Market Test was reasonable without reference to ex post regulation, we need not
further address whether the ex post regulation retained in the 2017 Order would save
an unreasonable rule.
-30-
D. Ethernet Services
The CLEC Petitioners argue the FCC unreasonably excluded low bandwidth
Ethernet BDS from price caps. A brief discussion of the 2016 Notice is necessary
before reaching the arguments here.
Although the 2016 Notice stated that it wanted a “technology and provider
neutral” framework, implicitly treating both Ethernet and TDM services the same, it
emphasized several times that it would still, as necessary, treat TDM services
differently than Ethernet services “based on past experience and historical practice.”
2016 Notice at ¶¶ 270 & n.689, 507. The 2016 Notice requested comment on how
previous grants of forbearance would impact any regulatory approach. Id. at ¶ 311.
While it requested comment on extending some type of rate regulation to Ethernet
BDS in non-competitive areas, it proposed that the rate regulation would not be price
caps but instead would be an anchor or benchmark pricing system based on the price
caps for TDM BDS. Id. at ¶¶ 352–54. It noted that price caps incurred disadvantages
that anchor or benchmark pricing did not, and it sought commentary on using anchor
or benchmark pricing. Id. at ¶ 425. Finally, it proposed expanding the tariff
forbearance for Ethernet BDS from the companies that had previously petitioned for
such forbearance to all companies offering Ethernet BDS. Id. at ¶ 434. The 2016
Notice suggested applying price caps to Ethernet BDS only in a request for comment
on whether to allow services to voluntarily include Ethernet BDS in their aggregate
price caps, although it did also request comment on a Verizon/INCOMPAS letter
suggesting the mandatory use of price caps in non-competitive areas. See id. at
¶¶ 426, 512.
In view of the 2016 Notice, the question facing the FCC and commenters was
how to create a technology neutral framework that “take[s] account of legitimate
differences” between technologies. Id. at ¶ 507. The CLEC Petitioners’ arguments
on the rule are flawed for two reasons: they overstate the importance of a mistake in
-31-
the 2017 Order, and they mischaracterize the 2016 Notice as proposing eliminating
the distinction between TDM and Ethernet BDS.
The first flaw in the CLEC Petitioners’ argument is that, while they are correct
the 2017 Order misstated their comments, that error does not compromise the FCC’s
conclusions regarding low-bandwidth Ethernet. The FCC stated that the CLEC
Petitioners would only extend their fiber networks, not their TDM networks, in low
bandwidth situations. 2017 Order at ¶ 88. The record portions cited in ¶ 88 of the
2017 Order show that the CLEC Petitioners would not extend any network in low
bandwidth situations. See id. Nevertheless, the CLEC Petitioners overstate the
importance of that error. The FCC broadly found increasing revenue for cable and
CLECs and decreasing prices in BDS even at low bandwidths. Id. at ¶¶ 68–73. It
also found that the increased revenue combined with reduced sunk costs made
Ethernet BDS competitive, especially because ILECs needed to incur the same sunk
costs. Id. at ¶ 83. In view of the competition that the FCC found on the record, it was
not unreasonable for the FCC to conclude both that entrants are better placed to win
customers with Ethernet BDS than they would be if the market only included TDM
BDS and that regulation would dissuade competitors from continuing with the rapid
growth of Ethernet BDS. See id. at ¶ 88. As we observed in our discussion of the
Competitive Market Test, there is conflicting evidence about whether competitors are
building fiber networks to reach low bandwidth customers, and there is no reason the
FCC was obligated to favor the CLEC Petitioners’ interpretation of the evidence over
the interpretation it adopted. The FCC’s footnote regarding the CLEC Petitioners
was errant, but it was also not essential to the economic analysis.
The second flaw in the CLEC Petitioners’ argument is that it fails to
acknowledge that the 2016 Notice proposed that Ethernet services not be subjected
to tariffs or price caps. 2016 Notice at ¶¶ 420–26. Likely as a result, the CLEC
Petitioners do not discuss the benchmarking versus price cap nuance contained in the
2016 Notice. The statement in the CLEC Petitioners’ brief that “the Commission
-32-
proceeded to create the exact regulatory disparity that it rejected a year before” is
false because the 2016 Notice proposed regulatory disparity. The FCC followed the
economic analysis that it noted in its 2016 Notice, concluding that it is easier to enter
the market using Ethernet BDS because of the higher profits relative to sunk costs and
the need for both ILECs and competitors to build out a fiber network. The CLEC
Petitioners simply misread the 2016 Notice.
While the CLEC Petitioners may have some reasonable arguments against
treating Ethernet services differently, there is still no basis here for this Court to
conclude that the FCC acted arbitrarily and capriciously in its choice of whether to
exclude Ethernet services from price caps.15
E. The Interim Wholesale Access Rule
The CLEC Petitioners argue the FCC unreasonably declined to extend the
Interim Wholesale Access Rule to BDS. That rule requires ILECs to continue selling
wholesale access to certain services when they discontinue a TDM input in favor of
newer technology. We agree with the FCC that its elimination of the Interim
Wholesale Access Rule moots the issue of whether the FCC unreasonably declined
to extend that rule in this context. We also decline the CLEC Petitioners’ invitation
to adopt their characterization of the relevant “community” in 47 U.S.C. § 214(a)
because the argument invites proxy review of an order not before us.
15
Because we find the FCC’s actions regarding ex ante regulation reasonable
without reference to ex post regulation, we need not further address whether ex post
regulation would save an unreasonable rule.
-33-
F. The “X-factor”
We next consider the ILEC Petitioners’ sole challenge, which concerns the
FCC’s decision to set the “X-factor” annual price cap reduction at 2.0%. The FCC
explained in its 2017 Order that it believed the 2.0% rate, which was based on the
U.S. Bureau of Labor Statistics’ Capital, Labor, Energy, Materials, and Services data
for the broadcasting and telecommunications industries (“KLEMS (Broadcasting and
Telecommunications)” or “KLEMS”) data set, was likely too high, but that it did not
have information in the record from which it could quantify either the magnitude or
direction of bias. 2017 Order at ¶¶ 231, 236.
The ILEC Petitioners attack this rationale on two related grounds. First, they
argue that the FCC failed to account for the overstated productivity in the KLEMS
data set despite relevant information in the record that would have enabled such an
adjustment. The ILEC Petitioners also fault the FCC for failing to adjust the KLEMS
data set downward for the effect of declining utilization of TDM services on ILECs’
unit costs. After carefully considering these arguments and the underlying record, we
do not find that the FCC made an arbitrary or capricious decision.
We acknowledge the 2017 Order is not a model of clarity as it relates to the X-
factor analysis. Nevertheless, a court may “uphold a decision of less than ideal clarity
if the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n, 463
U.S. at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419
U.S. 281, 286 (1974)).
The best reading of this section of the 2017 Order is that the FCC rejected all
of the data offered to it for adjusting the KLEMS data set as insufficiently precise.
It acknowledged that the X-factor could reasonably be as low as 1.7%, which is the
percentage proposed by CenturyLink’s study for 2006–2014, the approximate
midpoint time period in the FCC’s data. 2017 Order at ¶¶ 224–25, 235. The FCC
-34-
then concluded that it would prefer a higher X-factor based on (1) a mistaken
comment about lack of studies with lower numbers16 and (2) another study based on
the KLEMS data set alone that favored a slightly higher X-factor. Id. at ¶ 235.
We see no reason in the record why the FCC would be compelled to adjust the
KLEMS data set, especially in light of the conflicting evidence on what sort of
adjustment was appropriate. As some intervenors observed, the CLECs offered
significant evidence that the KLEMS data set understates the productivity level
because the broadcasting industry has declining productivity while the
telecommunications industry has increasing productivity, and the KLEMS data set
included both industries. Also, the FCC found some evidence that cost-sharing
between TDM and Ethernet services was increasing productivity for both, leaving it
uncertain whether any adjustment to the KLEMS data set was necessary even when
price caps are applied to TDM services alone. Id. at ¶¶ 227–30. All of these reasons
support the FCC’s decision not to adjust the KLEMS data set and to reach the
resulting 2.0% X-factor from an unadjusted KLEMS data set.
16
We are troubled by the FCC’s statement in the 2017 Order that “[n]o party has
submitted an X-factor study or similar data-based analysis purporting to show that the
X-factor should be lower than 2.0 percent.” CenturyLink submitted just such a study.
2017 Order at ¶ 235 n.595. The FCC cited the relevant study for other propositions
in the 2017 Order, indicating that it was aware of the study. See, e.g., id. at ¶ 206
n.534. It also expressed multiple reasons for rejecting any adjustment in light of the
conflicting evidence. If the FCC did not accept the credibility of the proposed
adjustment data before it, any adjustment based on that data would be arbitrary and
capricious. See Sierra Club v. E.P.A., 884 F.3d 1185, 1195 (D.C. Cir. 2018) (holding
that the EPA was arbitrary and capricious when it based a conclusion on data it found
unreliable). Thus, because the FCC reasonably found any adjustment to the KLEMS
data set inappropriate, we are not convinced that its mistaken statement was anything
more than a failure to expressly acknowledge all of the adjustment options it was
rejecting.
-35-
The ILEC Petitioners’ argument that the FCC failed to account for relevant
evidence showing overstated productivity in the KLEMS data set is flawed because
the FCC found conflicting evidence both as to whether the KLEMS data set
overstated productivity and, if so, the magnitude of that overstatement. “When neither
of two suggested adjustments applied to inaccurate data is completely satisfactory[,]
a rate-making body may fashion its own adjustments within reasonable limits.”
United Parcel Serv., Inc. v. U.S. Postal Serv., 184 F.3d 827, 839 (D.C. Cir. 1999)
(quoting Ass’n of Am. Publishers, Inc. v. Governors of U. S. Postal Serv., 485 F.2d
768, 773 (D.C. Cir. 1973)). The FCC declined to impose any adjustment because it
determined it needed an extensive set of company specific data and inputs to
accurately resolve the conflicting evidence. 2017 Order at ¶ 231. While it may have
some of that data in the record, the FCC was not unreasonable in declining to use the
limited data at hand when it had doubts about the reliability of that data.
The ILEC Petitioners’ argument that evidence of declining utilization of TDM
services on ILECs’ unit costs required a downward adjustment to the KLEMS data
set is wrong for two reasons. First, the FCC found conflicting evidence on the effect
of declining utilization on ILECs’ unit costs, and therefore was not required to accept
the ILEC Petitioners’ favored data. Id. at ¶¶ 226–30. If cost sharing was increasing
productivity, as some evidence indicated, then the FCC reasonably declined to adjust
the KLEMS data set downward. Second, contrary to the ILEC Petitioners’ assertion,
the FCC did take account of the declining utilization when selecting an X-factor
within its proposed range. Id. at ¶¶ 233–36. While it may have been preferable for
the FCC to adjust the proposed range of X-factors rather than the selection within the
range, the FCC was not required to account for declining utilization at all. The FCC
reasonably declined to adjust the KLEMS data set considering the limited and
potentially unreliable data at hand.
-36-
While the FCC’s analysis regarding the X-factor was not a model of clarity, we
conclude that the FCC was not arbitrary and capricious in declining to adjust the
KLEMS data set in its selection of a new X-factor.
IV. Conclusion
We grant the CLEC Petitioners’ petitions, in part, vacating the portions of the
final rule affecting TDM transport services and remanding that issue alone to the FCC
for further proceedings. We deny the petitions for review on all other issues.
______________________________
-37-
|
621 F.Supp.2d 1108 (2008)
Clay L. WYANT, Plaintiff,
v.
CITY OF LYNNWOOD, et al., Defendants.
Case No. C08-0283RAJ.
United States District Court, W.D. Washington, at Seattle.
November 24, 2008.
*1109 John Rolfing Muenster, Muenster & Koenig, Seattle, WA, for Plaintiff.
James E. Baker, Jerry J. Moberg & Associates, Ephrata, WA, for Defendants.
ORDER
RICHARD A. JONES, District Judge.
I. INTRODUCTION
This matter comes before the court on a motion for summary judgment from Defendants.[1] Dkt. # 13. Neither party has *1110 requested oral argument. For the reasons stated below, the court DENIES the motion.
II. BACKGROUND
Plaintiff Clay Wyant's claims arise from his arrest in Lynnwood Municipal Court on December 20, 2004. This is the earliest possible date on which his claims in this action accrued. On December 11, 2007, he filed an administrative claim with the City of Lynnwood. On February 19, 2008, he filed this lawsuit, asserting four 42 U.S.C. § 1983 claims and two state law claims.
Defendants contend that the court should grant summary judgment against Mr. Wyant's § 1983 claims because they were not filed within the applicable statute of limitations.
III. ANALYSIS
On a motion for summary judgment, the court must draw all inferences from the admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party must initially show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party must then show a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party must present probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991).
In this case, the court need not resolve any factual disputes. The court assumes that Mr. Wyant's claims accrued on December 20, 2004, because no party has provided any evidence that his claims accrued earlier. The court thus assumes for purposes of this motion that Mr. Wyant filed his claims three years and sixty-one days after his claims accrued. Because of assumption, the court today resolves a purely legal question: is this action timely under applicable statutes of limitation and rules of tolling. The court defers to neither party in answering legal questions. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999).
Section 1983 contains no statute of limitations. Federal courts borrow statutes of limitation for § 1983 claims from state law, specifically the state's "general or residual statute for personal injury actions." Owens v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). There is no dispute that the applicable Washington statute is RCW 4.16.080(2), which provides a three-year limitations period. Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir.1991). There is no question that Mr. Wyant sued more than three years after his claims accrued on December 20, 2004.
The statute of limitations is not the end of the question, however, because federal courts considering § 1983 claims also borrow state law for the "closely related question[]" of tolling statutes of limitation. Wilson v. Garcia, 471 U.S. 261, 269, 105 *1111 S.Ct. 1938, 85 L.Ed.2d 254 (1985); see also Harding v. Galceran, 889 F.2d 906, 907 (9th Cir.1989) ("We look to state law to determine the application of tolling doctrines.") (citing Bd. of Regents v. Tomanio, 446 U.S. 478, 486-87, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980)). Mr. Wyant relies on RCW 4.96.020, which governs "claims for damages against all local governmental entities and their officers, employees, or volunteers." RCW 4.96.020(1). The statute requires that a party file a "claim" with a designated agent of the local government entity, RCW 4.96.020(2)-(3), and in the provision critical to resolving this motion, provides as follows:
No action shall be commenced against any local governmental entity, or against any local governmental entity's officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.
RCW 4.96.020(4).
No one disputes that Mr. Wyant filed a "claim" within the meaning of the statute on December 11, 2007. He contends that his claim tolled the statute of limitations for an additional 60 days. If he is correct, then this action is timely.[2] The question before the court is whether the tolling provision (the final sentence) of RCW 4.96.020(4) applies to toll the statute of limitations for a § 1983 claim. For the reasons stated below, the court concludes that it does.
Although federal courts borrow statutes of limitations and tolling doctrines from state law in § 1983 suits, they prohibit state law from imposing additional prerequisites to § 1983 suits. For that reason, state "notice-of-claim provisions," which require a plaintiff to give administrative notice to government entities or government actors before bringing a § 1983 suit, are not applicable in federal court. Felder v. Casey, 487 U.S. 131, 140, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). Although courts presume that Congress intended some limit on the time period for bringing a § 1983 claim, they do not assume that Congress intended any "notice-of-claim" limitation. Id. Moreover, the Constitution's Supremacy Clause preempts enforcement of state notice-of-claim provisions in § 1983 cases brought in state court. Id. at 141, 153, 108 S.Ct. 2302.
Under these principles, the portion of RCW 4.96.020(4) that requires a pre-suit claim does not apply in federal court and is preempted in state court. In Wright v. Terrell, Washington recognized that its courts could not require a RCW 4.96.020(4) pre-suit claim for a § 1983 suit. 162 Wash.2d 192, 170 P.3d 570, 570 (2007) (citing Felder, 487 U.S. at 138, 108 S.Ct. 2302).
Neither Felder nor Terrell, however, addresses the question this case presents: whether the tolling provision (the final sentence) of RCW 4.96.020(4) applies to Mr. Wyant. Fortunately, the Ninth Circuit answered the question in Harding. There, the court considered a California statute that both barred a civil suit against a peace officer while criminal charges against the plaintiff were pending and tolled the statute of limitations while the charges were pending. Harding, 889 F.2d *1112 at 907-908 & n. 2 (citing Cal. Gov't Code § 945.3). The court followed Felder in holding that the portion of the statute preventing a plaintiff from suing was not applicable in a § 1983 suit. Id. at 908. The court concluded, however, that nothing preempted the application of the tolling portion of the statute. Id. at 908-09. The court reasoned that the tolling provision merely expanded § 1983 plaintiffs' access to the courts, a result not at odds with congressional intent. Id. at 909.
Harding compels the court to conclude that federal law requires the application of the tolling provision of RCW 4.96.020(4). Like the California provision at issue in Harding, the Washington statute contains both a prerequisite to filing a suit and a tolling provision. Compare Harding, 889 F.2d at 908 n. 2 (providing full text of California statute) with RCW 4.96.020(4). Like the California tolling provision, the Washington tolling provision by itself expands access to the courts. Moreover, although the pre-suit notice requirement of RCW 4.96.020(4) is not enforceable in a § 1983 suit, enforcing the statute's tolling provision still serves the purposes for which the legislature enacted it. The purpose of the RCW 4.96.020(4) is "to establish a period of time for government defendants to investigate claims and settle those claims where possible." Medina v. Pub. Utility Dist. No. 1, 147 Wash.2d 303, 53 P.3d 993, 1000 (2002). Although the statute cannot require a § 1983 claimant to make pre-suit claim, its tolling provision encourages plaintiffs to make such claims by ensuring that the clock will not run on their right to sue. Enforcing the tolling provision of RCW 4.96.020(4) advances both the goals of the state statute and Congress's goals. See Harding, 889 F.2d at 908-09 (noting that enforcing tolling provision supported objectives of both California and federal legislation).
One Washington decision interprets Harding differently. In Southwick v. Seattle Police Officer John Doe No. 1-5, the court distinguished Harding, finding that "[n]o similar state policies are ignored by declining to separately import the tolling provisions of RCW 4.96.020(4) into the § 1983 limitation period." 145 Wash.App. 292, 186 P.3d 1089, 1092-93 (2008). The court did not discuss the policy underlying RCW 4.96.020(4), nor did it explain why the statute's tolling provision, applied separately, would fail to advance that policy. Instead of following Harding, the Southwick court relied on Silva v. Crain, 169 F.3d 608 (9th Cir.1999). In Silva, the court adhered to Supreme Court precedent requiring it to borrow the general statute of limitations for personal injury claims in California. 169 F.3d at 610. The court rejected the plaintiff's contention that it should follow "a different special statute of limitations [that] comes into play as to actions against [a public] agency and its employees." Id. In reaching that result, the court considered Harding and found it "entirely inapposite" because the Harding court applied a state tolling statute to a § 1983 claim, consistent with federal law. Id. By contrast, the law on which the plaintiff in Silva relied was not a tolling statute, but rather "a separate freestanding special statute of limitations." Id. at 611. The court disapproved of a prior decision that had characterized the Harding statute as "effectively toll[ing]" statutes of limitation. Id. (citing Hood v. City of Los Angeles, 804 F.Supp. 65, 66 (C.D.Cal.1992)).
In this case, Harding is controlling law for precisely the reasons stated in Silva. Mr. Wyant does not seek to rely on a "special statute of limitations," he seeks to rely on a "tolling provision" that is materially identical to the California tolling provision that the Harding court applied to a § 1983 claim. To this extent, the court *1113 disagrees with the Southwick court, which found that "as in Silva, the relevant law [RCW 4.96.020(4)] is a notice of claims statute containing a tolling provision." Silva expressly distinguished the statute it relied on from the tolling provision discussed in Harding. The "relevant law" in Silva was not a tolling provision. 169 F.3d at 611 ("[N]either [of the statutes at issue] is a tolling statute.").[3]
Given the difference between this court's application of law and Southwick, the court notes that Southwick is not binding authority. On matters of state law, where the state's highest court has not addressed an issue, a federal court follows the decisions of intermediate appellate courts unless there is "convincing evidence" that the highest court would decide the issue differently. In re Kirkland, 915 F.2d 1236, 1238 (9th Cir.1990) (quoting Stoner v. New York Life Ins. Co., 311 U.S. 464, 468, 61 S.Ct. 336, 85 L.Ed. 284 (1940)). The court need not decide whether there is "convincing evidence" that the Washington Supreme Court would disagree with the reasoning of the intermediate appellate court in Southwick, because the critical holding in Southwick is an interpretation of federal law, not state law. Although Southwick centers on a state statute, the critical issue is whether federal law either preempts the tolling provision of that statute or requires that it be applied to federal civil rights claims. When a state court interprets federal law, its decision does not bind a federal court. At least one court within this District has followed Southwick without discussion. Fleming v. Washington, No. C07-5246FDB, 2008 WL 4223226, at *1-2, 2008 U.S. Dist. LEXIS 69152, at *3-5 (W.D.Wash. Sept. 11, 2008).[4] This court declines to do so to the extent that Southwick is inconsistent with this court's interpretation of Harding.
IV. CONCLUSION
For the reasons stated above, the court holds that the tolling provision of RCW 4.96.020(4) applies to § 1983 suits, and therefore finds that Mr. Wyant timely filed suit. The court DENIES Defendants' motion for summary judgment (Dkt. # 13).
NOTES
[1] There are three Defendants in this matter: the City of Lynnwood and two police officers. The same counsel represents all three Defendants. It is not clear whether counsel brought this motion solely on behalf of the City of Lynnwood or on behalf of all Defendants. Given the disposition of this motion, there is no need for the court to resolve this issue. The court directs Defendants' counsel to clearly state in future motions whether he seeks relief on behalf of all his clients.
[2] Mr. Wyant filed this suit on February 19, 2008, three years and 61 days after December 20, 2004. February 18, 2008, however, was a court holiday. Thus, Mr. Wyant was permitted to file this action on the next court day. Fed. R. Civ. P. 6(a)(3).
[3] There is an additional distinction between this action and Southwick that may explain the disparate results: unlike Mr. Wyant, there is no indication that the plaintiff in Southwick ever filed a pre-suit claim. The Southwick court did not mention this omission, nor explicitly rely on it as a basis for its holding. If, however, the Southwick plaintiff was implicitly contending that RCW 4.96.020 creates a three-year-plus-sixty-day statute of limitations for § 1983 claims, then his position would be akin to the Silva plaintiff who sought to rely on a special statute of limitation. The Southwick court repeatedly characterized the plaintiff's contention as a tolling argument, and did not discuss the lack of a pre-suit claim. If it had discussed the absent pre-suit claim, this court queries why the Southwick court would not have simply rejected the special statute of limitations contention as a matter of statutory interpretation. RCW 4.96.020(4) is explicitly a tolling provision that does not extend the statute of limitations without a pre-suit claim. Thus, the Southwick plaintiff would appear to have had no basis to invoke RCW 4.96.020(4) regardless of whether it applies in § 1983 suits.
[4] The decision in Fleming is brief, and, as in Southwick, there is no indication that the plaintiff actually filed a pre-suit claim. By contrast, the plaintiff in Petrolino v. County of Spokane filed a pre-suit claim within the limitations period. No. CV-07-228-FVS, 2007 WL 4365788, at *1, 2007 U.S. Dist. LEXIS 95228, at *2 (E.D.Wash. Dec. 11, 2007). In that case, decided before Southwick, the court followed Harding and concluded that the tolling provision of RCW 4.96.020(4) applies to § 1983 suits. Id. at *1-4, 2007 U.S. Dist. LEXIS 95228 at *3-9.
|
412 S.W.2d 245 (1967)
William CREECH, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
March 3, 1967.
Bernard J. Blau, Newport, for appellant.
Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, Frank Benton, III, Commonwealth's Atty., Newport, for appellee.
DAVIS, Commissioner.
William Creech was found guilty of being an accessory before the fact to the crime of armed assault with intent to rob. KRS 431.160; 433.150. The jury's verdict fixed his punishment at imprisonment for 21 years. Upon this appeal he presents several purported grounds for reversal, but we deem it necessary to consider only whether the Commonwealth presented sufficient evidence tending to connect Creech with the commission of the offense, apart from the evidence of two accomplices. RCr 9.62.
As related by the accomplices, Francis Brossart and James Lucas, the appellant Creech and Lucas arranged for Brossart (a somewhat mentally-retarded youth of 17) to undertake an armed robbery of Bernard Finkelman. Creech and Lucas outlined the plans for the crime to Brossart, and obtained a pistol which Creech delivered to Brossart, although it was not Creech's weapon. The plan was for Brossart to *246 conceal himself in the automobile of Finkelman, armed with the pistol, and rob him when he unsuspectingly entered the car. Creech and Lucas were to stand by in concealment to assist Brossart to depart the crime-scene with impunity. The plan misfired, literally. Brossart shot himself with the gun in his fumbling effort to rob Finkelman. Even so, Creech and Lucas succeeded in spiriting Brossart from the scene to a temporary refuge, from which Brossart was shortly routed by the police.
About an hour or hour-and-a-half before the assault Brossart and Creech were walking together on Brighton Street, near Tenth Street in Newport; this point was about a block from Finkelman's store, and about three blocks from Creech's residence. As they walked together they were observed by a detective, who interrupted the stroll by taking Brossart to police headquarters for questioning; Creech was not taken by the police, and allegedly went on home. The police released Brossart and he undertook the robbery later that same night, March 3, 1966.
On March 4, 1966, the police picked up Creech and questioned him briefly; he was then being charged (although not formally) with contributing to the delinquency of Brossart, a minor. It was some few days later that the police again had Creech come into headquarters for an interview. Detective Patrick Ciafardini testified that he advised Creech of his right to have counsel and to remain silent, as well as of the fact that anything he might say could be used against him. The detective said that Creech informed him that he did not desire to make any statement, and that no statement was obtained from him. It is apparent that the detective used the term "statement" in the sense of a formal written instrument.
Despite Creech's having informed the detective of his desire to remain silent, Brossart was brought into Creech's presence by the detective and was asked to relate what Brossart had theretofore confessed; the confession of Brossart implicated Creech fully. As a part of Brossart's recital he asserted that Creech had delivered to him the pistol used in the attempted robbery. At this point the detective inquired of Creech: "Bill, is that right?" Then, according to Officer Ciafardini, Creech responded: "O.K., Pat. Giving him a gun would be like putting a pack of matches in a kid's hands." We observe that the quoted statements are as they appear in the record as it relates to voir dire examination, out of the presence of the jury. The trial court overruled Creech's objection to the admission of this reference to "putting a pack of matches in a kid's hands."
When the detective gave his evidence before the jury the version of the incident was slightly modified. He did not relate that he had posed the question: "Bill, is that right?" and in recounting what Creech had said phrased it this way: "Well, Pat, it was just like putting a pack of matches in a kid's hands."
There is really nothing else in the entire record which may be deemed as corroborative of the testimony of the two accomplices. It is our view that the bare statement, whether it was uttered in the words recorded on the voir dire examination, or as stated in the testimony before the jury, falls short of meeting the corroborative requirements imposed by RCr 9.62. The bare statement is susceptible of various interpretations, most of them as consistent with an innocent proclamation as with an incriminating one. This is particularly so in light of the fact that Brossart was shown to be a youth of retarded mentality. The statement could mean that Creech regarded the confession obtained by the police from Brossart as having been easily accomplished, or it could indicate Creech's idea of pointing out that no sensible person would have handed Brossart a gun. We are not able to read into the statement anything tending to connect Creech with the commission of the offense.
*247 This court has dealt often with the sufficiency of corroborative testimony in accomplice cases. See 6 Ky.Digest Criminal Law. Each case rests upon its particular facts as those facts may or not fall within the legal concepts. Examples of cases in which the corroborative testimony has been held insufficient include Daggit v. Commonwealth, 314 Ky. 721, 237 S.W.2d 49; Bryant v. Commonwealth, Ky., 277 S.W.2d 55; Commonwealth v. Truglio, Ky., 371 S.W.2d 648; Hartsock v. Commonwealth, Ky., 382 S.W.2d 861. Without undertaking an analysis of these and other cases of similar import, we consider it sufficient to say that we are persuaded that they impel the conclusion that the evidence at hand was insufficient to corroborate the testimony of the accomplices within the purview of RCr 9.62.
We need not decide whether the rationale of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and cases of that tenor was applicable to the trial at which Creech was convicted. It is certain that the principles enunciated in Escobedo, and in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, will be applicable in the event of another trial. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
It appears, therefore, that the court should not admit Creech's statement relating to the "pack of matches" since it was elicited while Creech was in custody and after he had affirmatively declared that he did not desire to make any statement.
The other alleged errors are deemed to be without merit and will not be discussed herein.
The judgment is reversed for proceedings consistent with the opinion.
All concur.
|
Slip Op. 17-20
UNITED STATES COURT OF INTERNATIONAL TRADE
SIGVARIS, INC.,
Plaintiff,
Before: Jennifer Choe-Groves, Judge
v.
Court No. 11-00532
UNITED STATES,
Defendant.
OPINION
[Sua sponte dismissing Plaintiff’s claims concerning the classification of (1) certain models of
graduated compression hosiery for which the court lacks subject matter jurisdiction, and (2)
certain models of graduated compression arm-sleeves and gauntlets that were protested properly
but Plaintiff has waived.]
Dated:February 28, 2017
John M. Peterson, Russell Andrew Semmel, and Elyssa R. Emsellem, Neville Peterson, LLP, of
New York, N.Y., for Plaintiff Sigvaris, Inc.
Alexander J. Vanderweide, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, N.Y., for Defendant United States. With him on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Amy M. Rubin,
Assistant Director. Of counsel on the brief was Beth C. Brotman, Attorney, Office of the Chief
Counsel International Trade Litigation, U.S. Customs and Border Protection, of New York, N.Y.
Choe-Groves, Judge: Sigvaris, Inc. (“Plaintiff”) filed a complaint pursuant to 28 U.S.C.
§ 1581(a) (2006)1 claiming that U.S. Customs and Border Protection (“Customs”) improperly
denied its protests, which challenged Customs’ classification of various models of graduated
compression hosiery, arm-sleeves, and gauntlets. See Summons, Dec. 22, 2011, ECF No. 1;
1
Further citations to Title 28 of the U.S. Code are to the 2006 edition.
Court No. 11-00532 Page 2
Compl., Mar. 30, 2012, ECF No. 6. Plaintiff and Defendant subsequently filed cross-motions for
summary judgment concerning the correct classification of several models of Plaintiff’s imported
compression products. See Pl.’s Mot. Summ. J., Dec. 21, 2015, ECF No. 56; Def.’s Cross-Mot.
Summ. J. 2, Mar. 10, 2016, ECF No. 61. Before addressing the merits of the Parties’ cross-
motions for summary judgment, the court issues this opinion to address jurisdictional matters.
For the reasons set forth below, the court finds that it lacks subject matter jurisdiction to hear
Plaintiff’s claim for certain models of hosiery and that Plaintiff has waived its claim regarding
certain models of arm-sleeves and gauntlets. The court accordingly dismisses these claims sua
sponte. The court will render judgment on the cross-motions for summary judgment in a
separate opinion, which will exclude those claims that the court dismisses here.
BACKGROUND
Plaintiff imported 105 entries of graduated compression merchandise into the United
States at the Port of Atlanta between September 2008 and November 2010. See Summons;
Statement of Material Facts as to Which no Genuine Issue Exists ¶ 2, Dec. 21, 2015, ECF No.
56-1 (“Pl. Facts”); Def.’s Resp. Pl.’s Statement of Material Facts as to Which No Genuine Issues
Exists ¶ 2, Mar. 10, 2016, ECF No. 61 (“Def. Facts Resp.”). The entries imported by Plaintiff
consist of graduated compression hosiery, arm-sleeves, and gauntlets. See Def.’s Statement of
Undisputed Material Facts ¶ 1, Mar. 10, 2016, ECF No. 61 (“Def. Facts”); see also Pl.’s Resp.
Def.’s Statement of Undisputed Material Facts ¶ 1, June 1, 2016, ECF No. 66-1 (“Pl. Facts
Resp.”). Each product is designed to apply a fixed range of graduated compression measured in
millimeters of mercury (“mmHg”). See Def. Facts ¶ 3; Pl. Facts Resp. ¶ 3.
Court No. 11-00532 Page 3
Plaintiff imported various models of its graduated compression products, each differing
in style, material, length, and compression level. See Def. Facts ¶¶ 1–8; Pl. Facts Resp. ¶¶ 1–8.
The graduated compression hosiery at issue includes models from the following product lines:
120 Support Therapy Sheer Fashion Series for women (“Series 120”),2 145 Support Therapy
Classic Dress Series for women (“Series 145”), 180 Support Therapy Classic Ribbed Series for
men (“Series 180”), 185 Support Therapy Classic Dress Series for men (“Series 185”), 400
Sports Performance Series (“Series 400”), 500 Medical Therapy Natural Rubber Series (“Series
500”), and 900 Medical Therapy Traditional Series (“Series 900”). Plaintiff’s product catalogue
indicates that Series 120, 145, 180, and 185 models exert 15–20 mmHg of compression, see Pl.
Exs. Rule 56.3 Statement of Facts and Mem. Ex. A at 000029–30, 000035–36, Dec. 21, 2015,
ECF No. 56-4 (“Ex. A”). Plaintiff alleges that Series 400, 500, and 900 models apply
compression of 20 mmHg or greater. See Letter in Resp. to Information Requested 3–4, Nov. 8,
2016, ECF No. 75 (“Pl. Letter”). The graduated compression arm-sleeves and gauntlets involved
in this matter include models from the 500 Medical Therapy Natural Rubber Series (“Series 500
arm-sleeves and gauntlets”)3 and 900 Medical Therapy Traditional Series (“Series 900 arm-
sleeves and gauntlets”).4 Series 500 arm-sleeves and gauntlets exert 30–40 mmHg of
2
Series 120 is available in the following varieties: 120P (pantyhose), 120M (maternity
pantyhose), 120N (thigh-high hosiery), 120C (calf-length hosiery), and 120CO (calf-length
hosiery with open toe). See Def. Facts ¶ 5.
3
Series 500 arm-Sleeves and gauntlets are available in the following varieties: 503A (arm-sleeve
without gauntlet), 503B (arm-sleeve with gauntlet), 503Gs2 (separate gauntlet), and 503GM2
(separate gauntlet). See Def. Facts ¶ 8.
4
Series 900 arm-sleeves and gauntlets are available in the following varieties: 901B11 (arm-
sleeve with gauntlet at 20–30 mmHg), 902B11 (arm-sleeve with gauntlet at 30–40 mmHg),
(footnote continued)
Court No. 11-00532 Page 4
compression and Series 900 arm-sleeves and gauntlets are available in models with either 20–30
mmHg or 30–40 mmHg of compression. See Ex. A at 000025–26.
Customs classified and liquidated the graduated compression merchandise under various
provisions of the Harmonized Tariff Schedule of the United States (2010) (“HTSUS”) as
follows: (1) the graduated compression hosiery at a duty rate of 14.6% ad valorem under HTSUS
subheading 6115.10.40 or duty free under HTSUS subheading 6115.10.05; (2) the graduated
compression arm-sleeves under HTSUS subheading 6307.90.98 dutiable at 7% ad valorem; and
(3) the graduated compression gauntlets under HTSUS subheading 6116.93.88 dutiable at 18.6%
ad valorem. See Pl. Facts ¶ 3; Def. Facts Resp. ¶ 3; see also Summons. Plaintiff filed nine
protests that challenged Customs’ classification of several models of graduated compression
merchandise. See Protest Nos. 1704-10-100013, -10-100018, -10-100068, -10-100240, -10-
100258, -11-100057, -11-100189, -11-100352, -11-100414. Plaintiff’s protests sought, inter
alia, to have Customs classify all of the merchandise duty free under HTSUS subheading
9817.00.96 as “[a]rticles specially designed or adapted for the use or benefit of the blind or other
physically or mentally handicapped persons,” or alternatively to classify the compression hosiery
as duty free under HTSUS subheading 6115.10.05 as “[s]urgical panty home [sic] and surgical
stockings with graduated compression for orthopedic treatment.” See, e.g., Protest No. 1704-10-
100018. Plaintiff’s protests were deemed denied on December 12, 2011.5
901A11 (arm-sleeve without gauntlet at 20–30 mmHg), 902A11 (arm-sleeve without gauntlet at
30–40 mmHg), and 902A11+size/S (arm-sleeve with grip-top at 30–40 mmHg). See Ex. A at
000026.
5
By statute, “a protest which has not been allowed or denied in whole or in part within thirty
(footnote continued)
Court No. 11-00532 Page 5
On December 22, 2011, Plaintiff commenced its action to contest the denial of its
protests, invoking the court’s jurisdiction under 28 U.S.C. § 1581(a). See Summons. Plaintiff’s
complaint alleged that Customs misclassified several models of graduated compression
merchandise and improperly denied the protests. See Compl. ¶¶ 32–66. Plaintiff moved for
summary judgment contending that certain models of graduated compression hosiery, arm-
sleeves, and gauntlets were entitled to duty free treatment under HTSUS subheading 9817.00.96.
See Mem. Sigvaris, Inc., Supp. Pl.’s Mot. Summ. J. 3–21, Dec. 21, 2015, ECF No. 56-2 (“Pl.
Br.”). The motion contended alternatively that models of compression hosiery applying
compression of 20 mmHg or greater were classified under HTSUS subheading 6115.10.05 and
not subject to duties. See id. at 21–24. Defendant filed a cross-motion for summary judgment
arguing that the models of compression hosiery, arm-sleeves, and gauntlets were properly
classified under HTSUS subheadings 6115.10.40, 6307.90.98, and 6116.93.88, respectively. See
Def.’s Mem. Supp. Cross-Mot. Summ. J. 5–21, Mar. 10, 2016, ECF No. 61 (“Def. Br.”).
In a letter dated November 2, 2016, the court informed the Parties of potential
jurisdictional issues that might prevent the court from ruling on the classification of certain
models of graduated compression merchandise, namely Series 180 hosiery, models of hosiery
that apply pressure of 20 mmHg or greater, and Series 900 arm-sleeves and gauntlets. See
Letter, Nov. 3, 2016, ECF No. 74. The court questioned jurisdiction because the record before
the court did not establish that Plaintiff protested Customs’ classification of these specific
days following . . . a request for accelerated disposition shall be deemed denied on the thirtieth
day following mailing of such request.” 19 U.S.C. § 1515(b) (2006); see also 19 C.F.R. § 174.22
(2011).
Court No. 11-00532 Page 6
models, which is a prerequisite to filing a classification lawsuit. See id. at 1–2. The court
requested clarification of whether the entries included these models of graduated compression
merchandise and whether Customs’ classification of such models was properly protested. See id.
In response to the court’s request, Plaintiff averred that the subject entries included the
models in question and that the denied protests challenged Customs’ classification of these
products. See Pl. Letter 1–4. Plaintiff also stated that graduated compression hosiery with
compression of 20 mmHg or greater refers to Series 400, 500, and 900 models of compression
hosiery. See id. at 3–4. Defendant responded that 28 U.S.C. § 1581(a) does not provide the
court with jurisdiction over these classification claims because, “[w]hile . . . the entries identified
on the exhibits to Sigvaris’s response to the Court’s Letter contain series 180 compression
hosiery, 900 series arm-sleeves, and hosiery products of greater than 20 mmHg of compression,
Sigvaris never protested the classification of such product models.” See Def.’s Resp. Court’s
Nov. 2, 2016 Letter 1–6, Nov. 10, 2016, ECF No. 78 (“Def. Resp.”). Defendant noted that
Plaintiff’s complaint, responses to written discovery requests, and motion for summary judgment
failed to articulate that the classification of these specific models were at dispute in the cross-
motions for summary judgment. See id. at 6–13. Plaintiff rejected Defendant’s assertions as
“unfounded and erroneous” because Plaintiff purportedly filed valid protests that challenged
Customs’ classification of the merchandise and timely filed a summons to contest the denials of
these protests. See Pl.’s Reply Def.’s Resp. Pursuant Court’s Nov. 10, 2016 Letter 2–10, Nov.
14, 2016, ECF No. 80 (“Pl. Reply”).
Court No. 11-00532 Page 7
DISCUSSION
A. Jurisdictional Framework
The U.S. Court of International Trade, like all federal courts, is one of limited jurisdiction
and is “presumed to be ‘without jurisdiction’ unless ‘the contrary appears affirmatively from the
record.’” DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006)
(quoting King Iron Bridge & Mfg. Co. v. Otoe Cty., 120 U.S. 225, 226 (1887)). The party
invoking jurisdiction must “allege sufficient facts to establish the court’s jurisdiction”
independently for each claim asserted, id. at 1318–19 (citing McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936)), and therefore “bears the burden of establishing it.”
Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). A court may and
should raise the question of its jurisdiction sua sponte any time it appears in doubt. Arctic
Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988) (citation omitted); see also
USCIT R. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”).
The U.S. Court of International Trade has “exclusive jurisdiction of any civil action
commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff
Act of 1930.” 28 U.S.C. § 1581(a). Jurisdiction under 28 U.S.C. § 1581(a) is conditioned upon
the denial of a protest challenging a decision made by Customs that is filed in accordance with
Court No. 11-00532 Page 8
Section 1514 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (2006).6 The following
Customs decisions are protestable:
[A]ny clerical error, mistake of fact, or other inadvertence, whether or not
resulting from or contained in an electronic transmission, adverse to the importer,
in any entry, liquidation, or reliquidation, and, decisions of the Customs Service,
including the legality of all orders and findings entering into the same, as to--
(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties chargeable;
(3) all charges or exactions of whatever character within the
jurisdiction of the Secretary of the Treasury;
(4) the exclusion of merchandise from entry or delivery or a
demand for redelivery to customs custody under any provision of
the customs laws, except a determination appealable under section
1337 of this title;
(5) the liquidation or reliquidation of an entry, or reconciliation as
to the issues contained therein, or any modification thereof,
including the liquidation of an entry, pursuant to either section
1500 of this title or section 1504 of this title;
(6) the refusal to pay a claim for drawback; or
(7) the refusal to reliquidate an entry under subsection (d) of
section 1520 of this title.
19 U.S.C. § 1514(a). A protest must satisfy statutory and regulatory requirements regarding
form and content.7 See 19 U.S.C. § 1514(c); 19 C.F.R. § 174.13(a). Once a valid protest is filed,
6
Further citations to the Tariff Act of 1930, as amended, are to the relevant provision under Title
19 of the U.S. Code, 2006 edition.
7
According to 19 U.S.C. § 1514(c)(1),
[a] protest must set forth distinctly and specifically--
(A) each decision described in subsection (a) of this section as to which protest is
made;
(B) each category of merchandise affected by each decision set forth under
paragraph (1);
(C) the nature of each objection and the reasons therefore; and
(D) any other matter required by the Secretary by regulation.
(footnote continued)
Court No. 11-00532 Page 9
Customs must timely review the protest and determine whether to grant or deny the protest in
whole or in part. 19 U.S.C. § 1515(a). If an importer does not avail itself of the protest process,
the decision made by Customs “shall be final and conclusive upon all persons,” 19 U.S.C.
§ 1514(a), and judicial review is statutorily precluded. See 28 U.S.C. § 1581(a); see also
Hartford Fire Ins. Co. v. United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008).
B. Plaintiff’s Protests Before Customs
Plaintiff contends that the court has jurisdiction pursuant to 28 U.S.C. § 1581(a) to rule
on the classification of the imported models of compression products. See Compl. ¶ 2. The
court has jurisdiction pursuant to § 1581(a) only over claims previously subject to protest.
Each of Plaintiff’s protests included a completed protest form and an attached supporting
memorandum of points and authorities.8 See, e.g., Protest No. 1704-10-100018. Plaintiff
provided the reasons for its protests as follows:
Decision Protested: Classification of graduated compression hosiery under HTS
subheading 6115.10. Classification of compression arm sleeves under HTS
subheading 6307.90.9889. Classification of compression gauntlets under HTS
subheading 6116.93.99. Assessment of duty on products pursuant to these
subheadings.
Protest Claim: The merchandise is properly classifiable under HTS subheading
9817.00.96 as articles specially designed for the use of the blind or physically
19 U.S.C. § 1514(c)(1). The implementing regulation further clarifies that a protest must
include, among other requirements, “[a] specific description of the merchandise affected by the
decision as to which protest is made” and “[t]he nature of, and justification for the objection set
forth distinctly and specifically with respect to each category, payment, claim, decision, or
refusal.” 19 C.F.R. § 174.13(a)(5)–(6).
8
Per regulation, “[a] written protest against a decision of CBP must be filed in quadruplicate on
CBP Form 19 or a form of the same size clearly labeled ‘Protest’ and setting forth the same
content in its entirety, in the same order, addressed to CBP. All schedules or other attachments
to a protest (other than samples or similar exhibits) must also be filed in quadruplicate.” 19
C.F.R. § 174.12(b).
Court No. 11-00532 Page 10
handicapped, entitled to duty free entry, or, alternatively under HTS subheading
6115.10.05, duty free.
Reasons in Support of Protest: A Memorandum of Points and Authorities is
attached.
See, e.g., id.9 The protests indicated that the categories of merchandise subject to protest were
graduated compression hosiery, arm-sleeves, and gauntlets.
Plaintiff attached a memorandum to supplement each of its protests. See, e.g., id. at
Attach. Mem. P. & A. in Supp. Protest (“Suppl. Memo”).10 Each memorandum specified which
models of graduated compression hosiery, arm-sleeves, and gauntlets were subject to protest.
For hosiery, the memorandum specified that the goods at issue consisted of the following styles
of graduated compression hosiery:
SIGVARIS Support Therapy, Sheer Fashion graduated support
pantyhose (Model 120P) n sizes A, B, C, D, E and F and in colors
00, 10, 12, 29, 33, 36, 41, 73 and 99;
SIGVARIS Support Therapy, Sheer Fashion graduated support
Maternity Panty hose (Model 120M in sizes A, B, C, D, E and in
colors 33, 36, and 99;
SIGVARIS Support Therapy, Sheer Fashion graduated support
Thigh-High hosiery (Model 120N) in sizes A, B, C and in colors
00, 10, 12, 29, 33, 36, 41, 73, and 99;
SIGVARIS Support Therapy, Sheer Fashion graduated support
Calf-length hosiery (Model 120C) in sizes A, B, C and in colors
00, 10, 12, 29, 33, 36, 41, 73, and 99
SIGVARIS Support Therapy, Sheer Fashion graduated support
Calf length open toe hosiery (Model 120CO) in sizes A, B, C and
in colors 29, 33 and 36.
9
A number of Plaintiff’s protests forms additionally protested Customs’ classification of “cloth
accessories for compression hosiery under HTS subheading 6117.90.9090” and “compression
braces, garters under 6212.90.0030,” see Protest Nos. 1704-11-100189, -11-100352, -11-100414,
however, these products are not involved in this action.
10
The memoranda attached to each of Plaintiff’s protest are virtually identical. For ease of
reference, the court will cite to the memorandum attached to Protest Number 1704-10-100018.
Court No. 11-00532 Page 11
SIGVARIS Support Therapy, Classic Dress graduated support
sock for women (145C) in sizes A, B, C and in colors 00, 10, 12,
30 and 99;
SIGVARIS Support Therapy, Classic Dress graduated support
sock for men (185C) in sizes A, B, and C and colors 00, 10, 11, 12,
30, and 99.
See id. at 2–3 (emphases added). The memorandum clarified that the protest involved models of
graduated compression hosiery that exert between 15 and 20 mmHg of compression. See id. at
1, 3, 5–6. For arm-sleeves and gauntlets, the memorandum specified that the goods at issue
consisted of the following eight styles of graduated compression arm-sleeves and gauntlets:
SIGVARIS Medical Therapy, Natural Rubber Armsleeve with
gauntlet (503B) in sizes S1, S2, M1, M2, L1 and L2 in color beige;
SIGVARIS Medical Therapy, Natural Rubber Armsleeve without
gauntlet (503A) in sizes S1, S2, M1, M2, L1 and L2 in color beige
SIGVARIS Medical Therapy, Separate gauntlet (503Gs2 and
503GM2) in color beige
...
SIGVARIS Medical Therapy, Traditional Series Armsleeve (20-30
mmHg) with gauntlet (901B11) in sizes 1S, 2S, 1M, 2M, 1L, 2L in
color beige
SIGVARIS Medical Therapy, Traditional Series Armsleeve (30-40
mmHg) with gauntlet (902B11) in sizes 1S, 2S, 1M, 2M, 1L, 2L in
color beige
SIGVARIS Medical Therapy, Traditional Series Armsleeve (20-30
mmHg) without gauntlet (901A11) in sizes 1S, 2S, 1M, 2M, 1L,
2L in color beige
SIGVARIS Medical Therapy, Traditional Series Armsleeve (30-40
mmHg) without gauntlet (902A11) in sizes 1S, 2S, 1M, 2M, 1L,
2L in color beige
SIGVARIS Medical Therapy, Traditional Series Armsleeve (30-40
mmHg) with grip-top (902A11–size/S) in sizes 1S, 2S, 1M, 2M,
1L, 2L in color beige
Court No. 11-00532 Page 12
See id. at 3–4 (emphases added). The remainder of the memorandum set forth the reasons in
support of classifying these models of compression products under HTSUS subheading
9817.00.96.
C. Jurisdiction Over Plaintiff’s Classification Claims
Plaintiff’s complaint states that it seeks “judicial review of CBP’s denial of Plaintiff’s
protests concerning the classification . . . of certain graduated compression accessories.” Compl.
¶ 1. The complaint alleges that the merchandise in this action “consists of two principal classes
of graduated compression accessories: (a) hosiery; and (b) sleeves, worn on the arms, and
gauntlets, worn on the hands.” Compl. ¶ 5. Plaintiff’s primary claim is that the subject
graduated compression hosiery, arm-sleeves, and gauntlets are properly classified under HTSUS
subheading 9817.00.96. See Compl. ¶¶ 39–66. The complaint does not define, however, the
entire universe of product models captured by the references to “subject graduated compression
hosiery” and “subject graduated compression sleeves and gauntlets.” Id. Plaintiff’s subsequent
filings with the court clarify that “subject graduated compression hosiery” refers to Series 120,
145, 180, 185, 400, 500, and 900 models of hosiery and that “subject graduated compression
sleeves and gauntlets” refer to Series 500 and 900 arm-sleeves and gauntlets. See Compl. ¶¶ 7,
22; Pl. Facts ¶ 5; Pl. Facts Resp. ¶ 8; Pl. Letter 1–4.
As explained below, the court finds that § 1581(a) does not provide the court with subject
matter jurisdiction to hear Plaintiff’s classification claim insofar as it includes Series 180, 400,
500, and 900 graduated compression hosiery, and that Plaintiff waived its classification claim
with respect to Series 900 arm-sleeves and gauntlets during the course of this action.
Court No. 11-00532 Page 13
a. Graduated Compression Hosiery
The court does not have jurisdiction pursuant to 28 U.S.C. § 1581(a) to rule on the
classification of Series 180, 400, 500, and 900 graduated compression hosiery. Plaintiff submits
that it protested Customs’ classification of Series 120, 145, 180, 185, 400, 500, and 900 models
of graduated compression hosiery. See Pl. Reply 1–8. Upon reviewing the protests and
supporting memoranda submitted by Plaintiff, it is clear that Plaintiff only protested certain
models of graduated compression hosiery, which did not include Series 180, 400, 500, and 900
hosiery. See Suppl. Memo 2–3 (itemizing the hosiery products subject to protest). Plaintiff also
made it clear that the protests only concerned compression hosiery that applies 15–20 mmHg of
compression, but Plaintiff represents that Series 400, 500, and 900 hosiery apply greater than 20
mmHg of compression. See id. at 1 (“protests the decision of the Port Director of Customs to
classify imported compression hosiery, having a compression of between 15 and 20 millimeters
of mercury (mmHg)”), 5 (“this protest focuses on hosiery having a compression range of
between 15–20 mmHg”), 6 (“[a]t issue is the classification of the subject merchandise in the 15–
20 mmHg range”). Plaintiff’s complaint acknowledges that “[h]osiery having higher
compression (20 mmHg or more) . . . are not involved.” Compl. ¶ 19. Plaintiff’s motion for
summary judgment nevertheless attempts to claim that Customs misclassified hosiery that
applies compression of 20 mmHg or greater. See Pl. Br. 21–24.
A review of the protest documentation confirms that Plaintiff sufficiently challenged
Customs’ classification of Series 120, 145, and 185 graduated compression hosiery, but failed to
challenge the classification of Series 180, 400, 500, and 900 hosiery models. Because of this
jurisdictional failure, Customs’ classification of Series 180, 400, 500, and 900 hosiery became
Court No. 11-00532 Page 14
final and conclusive. See 19 U.S.C. § 1514(a). The court does not have jurisdiction, therefore,
over Plaintiff’s claim concerning the classification of the models of graduated compression
hosiery in Series 180, 400, 500, and 900.
Plaintiff argues that denying jurisdiction “‘is a severe action which should be taken only
sparingly.’” Pl. Reply 5 (quoting XL Specialty Ins. Co. v. United States, 21 CIT 858, 867
(2004)). Congress has expressly limited the court’s jurisdiction to the issues preserved for
appeal in a protest that is subsequently denied, and the court’s jurisdiction is confined to the
objections made in such a protest. Plaintiff itemized each model of merchandise it wished to
protest, yet failed to challenge the classification of Series 180, 400, 500, and 900 graduated
compression hosiery. Plaintiff was required to make such a challenge at the time of its initial
protests to preserve its right to appeal. See Computime, Inc. v. United States, 8 CIT 259, 261,
601 F. Supp. 1029, 1030 (1984) (“If plaintiff could have made such protests at that time, it was
required to make them.”), aff’d 772 F.2d 874 (Fed. Cir. 1985). Plaintiff does not provide any
reason for why it could not have challenged Customs’ classification of these models of graduated
compression hosiery at the time of its original protests. The court recognizes that dismissal for
lack of jurisdiction is a severe consequence. “[H]owever, the [jurisdictional] requirements are
straightforward and not difficult to satisfy.” Koike Aronson, Inc. v. United States, 165 F.3d 906,
909 (Fed. Cir. 1999).
Defendant asserts that the court cannot exercise jurisdiction over an additional aspect of
Plaintiff’s classification claim in this action. Plaintiff claims that the imported models of
graduated compression hosiery are properly classified under HTSUS subheading 9817.00.96,
which encompasses hosiery that was classified by Customs under HTSUS subheading
Court No. 11-00532 Page 15
6115.10.05 and 6115.10.40. Defendant questions the court’s jurisdiction over this claim to the
extent that it includes hosiery classified under HTSUS subheading 6115.10.05. Defendant
argues that this aspect of Plaintiff’s claim does not present a justiciable controversy given that
HTSUS subheading 6115.10.05 and 9817.00.96 are both duty free provisions. See Def. Br. 2
n.3; Def. Resp. 5–6. Under Article III of the Constitution, the Court is only empowered to
decide claims that present live cases or controversies. See U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 395 (1988); Flast v. Cohen, 392 U.S. 83, 94 (1968). Generally, a classification dispute
concerning two tariff provisions with the same duty rate is a moot issue and does not constitute a
justiciable controversy because there is no monetary harm or injury resulting from Customs’
classification. See 3V, Inc. v. United States, 23 CIT 1047, 1048–1052, 83 F. Supp. 2d 1351,
1352–55 (1999) (dismissing an action for failing to meet the Article III case or controversy
requirement because the two putative classification provisions carried the same duty rate). The
fact that the competing tariff provisions in this case are duty free does not render Plaintiff’s claim
moot here. Plaintiff’s claim presents a justiciable controversy because, unlike HTSUS
subheading 6115.10.05, merchandise classified under HTSUS subheading 9817.00.96 is exempt
from certain merchandise processing fees. See 19 C.F.R. § 24.23(c)(1)(i). Merchandise
classified under HTSUS subheading 6115.10.05 is not afforded such treatment.11 The
government would be required to refund the assessed merchandise processing fees if Plaintiff
were to prevail on this claim. Because Plaintiff’s claim alleges monetary harm resulting from
Customs’ classification, the Article III case or controversy requirement is satisfied.
11
The entry papers indicate that merchandise classified under HTSUS subheading 6115.10.05
was subject to a 0.21% ad valorem merchandise processing fee. See Entries.
Court No. 11-00532 Page 16
The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) over Plaintiff’s classification
claim regarding Series 120, 145, and 185 models of graduated compression hosiery that were
classified under HTSUS subheadings 6115.10.05 and 6115.10.40.
b. Graduated Compression Arm-Sleeves and Gauntlets
Plaintiff established the basis for the court’s jurisdiction pursuant to 28 U.S.C. § 1581(a)
by protesting Customs’ classification of Series 500 and 900 arm-sleeves and gauntlets. The
depositions conducted during discovery, Plaintiff’s responses to Defendant’s interrogatories, and
Plaintiff’s motion for summary judgment demonstrate, however, that Plaintiff has waived its
classification claim with respect to Series 900 arm-sleeves and gauntlets.
While initial pleadings are designed to “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests,” Bell Atlantic v. Twombly, 550 U.S. 544, 545
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), it is the information obtained during
discovery that reveals the true nature of the claims and fills in the details of the dispute. See
Hickman v. Taylor, 329 U.S. 495, 500–01 (1947) (discussing the interplay between pleadings
and the pre-trial discovery tools under Rules 26 to 37); see also United States v. Procter &
Gamble Co., 356 U.S. 677, 682–83 (1958). The third count in Plaintiff’s complaint can be
construed to include a claim regarding the classification of both Series 500 and 900 arm-sleeves
and gauntlets.12 There is no reference to Series 900 arm-sleeves and gauntlets in the three
depositions conducted during discovery. See Def.’s Cross-Mot. Summ. J. Ex. C–E, Mar. 10,
12
The third count in Plaintiff’s complaint alleges that it is entitled to relief because “[t]he subject
graduated compression sleeves and gauntlets” are properly classified under HTSUS subheading
9817.00.96. Compl. ¶¶ 53–66.
Court No. 11-00532 Page 17
2016, ECF Nos. 61-3–5. Plaintiff was asked to clarify through written discovery which models
of arm-sleeves and gauntlets were subject to this action:
(a) Please correlate, precisely and specifically, each and every invoice description
of the goods in issue with the catalog description of each such article, as that
article was sold in the United States during the time of the entries in issue in
this case.
Pl.’s First Set of Discovery Responses to Def. 12, Mar. 10, 2016, ECF No. 61–1 (“Pl.
Interrogatory Resps.”). Plaintiff provided the following response:
Invoice Description Catalog Description
503 CL.2 ARMSLEEVE WO.MITTEN A ... Natural Rubber Armsleeve,
without gauntlet
503 CL.2 ARMSLEEVE W. MITTEN B ... Natural Rubber Armsleeve,
with gauntlet
MITTEN G ... Natural Rubber Armsleeve,
separate gauntlet
Pl. Interrogatory Resps. 12–13. Plaintiff was asked to “produce each and every document,
catalog, brochure and/or specification that relates to your response to subpart (a), above.” See
Pl. Interrogatory Resps. 13. Plaintiff responded by referring to the page in its catalogue that
provides product information for Series 500 arm-sleeves and gauntlets. See id. Notably absent
from Plaintiff’s interrogatory responses are any references to models of Series 900 arm-sleeves
and gauntlets. The court must presume that Plaintiff’s answers to Defendant’s interrogatories
were complete. See Hickman, 329 U.S. at 509. By failing to include Series 900 arm-sleeves and
gauntlets in the depositions and interrogatory responses, the court must conclude that Plaintiff
waived its claim with respect to such merchandise.
The absence of any reference to Series 900 arm-sleeves and gauntlets in Plaintiff’s
submissions in connection with its motion for summary judgment also supports that Plaintiff
Court No. 11-00532 Page 18
waived its classification claim regarding such models of arm-sleeves and gauntlets. It is “well
established that arguments not raised in the opening brief are waived.” SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (citing Cross Med. Prods., Inc. v.
Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 (Fed. Cir. 2005); see also
Novosteel SA v. United States, 284 F.3d 1261, 1273–74 (Fed. Cir. 2002). In its USCIT Rule
56.3 statement of facts, Plaintiff states that the merchandise subject to this action “include[s]
Series 120, 145, 180, and 185 in compression hosiery, and Series 500 arm compression sleeves.”
Pl. Facts ¶ 5. Plaintiff’s motion for summary judgment does not refer to specific models of
graduated compression arm-sleeves and gauntlets. Nothing in Plaintiff’s statement of facts or
opening brief evinces that Customs’ classification of Series 900 arm-sleeves and gauntlets is at
issue. The only direct references to Series 900 arm-sleeves and gauntlets in this action are found
in documents submitted after Plaintiff filed its opening brief. See Pl. Facts Resp. ¶ 8; Pl. Letter
2; Pl. Reply 4. The court concludes that Plaintiff’s failure to include Series 900 arm-sleeves and
gauntlets in its motion, pleadings, and discovery responses constituted a waiver of its
classification claim for those models of merchandise.
CONCLUSION
For the foregoing reasons, (1) the court lacks subject matter jurisdiction over Plaintiff’s
claim concerning the classification of Series 180, 400, 500, and 900 graduated compression
hosiery, and (2) Plaintiff has waived its claim with respect to the classification of Series 900
arm-sleeves and gauntlets. Plaintiff’s classification claims regarding these models of
merchandise are dismissed. The graduated compression products that remain subject to this
Court No. 11-00532 Page 19
action are Series 120, 145, and 185 models of graduated compression hosiery and Series 500
arm-sleeves and gauntlets.
Judgment on the dismissed classification claims will be entered accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: February 28, 2017
New York, New York
|
514 So.2d 804 (1987)
DEPENDABLE INSURANCE COMPANY
v.
Elsie Marie Wade KIRKPATRICK.
85-1150.
Supreme Court of Alabama.
May 1, 1987.
Rehearing Denied May 29, 1987.
On Return to Remand June 26, 1987.
Rehearing Denied September 18, 1987.
*805 Arthur F. Fite III, Anniston, for appellant.
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, and Frank C. Ellis, Jr., of Wallace, Ellis, Head & Fowler, Columbiana, for appellee.
SHORES, Justice.
Plaintiff, Dependable Insurance Company, filed a declaratory judgment action seeking to determine the rights of defendant, Elsie M. Kirkpatrick, to use a cabin on Lay Lake. Defendant filed a counterclaim for conversion, and plaintiff appeals from a judgment in favor of defendant. We affirm conditionally as to that portion of the judgment awarding compensatory damages and remand with instructions as to the portion awarding punitive damages.
Elsie M. Kirkpatrick was married to G.T. Kirkpatrick in 1947. In 1968 G.T. entered into a 15-year agreement with Alabama Power Company (hereinafter "APCo") for a lot on Lay Lake in Shelby County. There was a provision for a 15-year extension at the end of the primary term. The agreement required G.T. to complete the construction of a dwelling within two years, and the dwelling was completed in 1970.
In 1973, Elsie and G.T. were divorced. The divorce decree stated, in pertinent part:
"The Lay Lake Cabin leased by the defendant [G.T.] shall remain the defendant's property but plaintiff [Elsie] shall have the right to use same on the first and third weekends of each month and for four weeks during the summer each year beginning with the first full week in July of 1974 and thereafter; it is agreed by the parties that each will be responsible for their respective cleaning and maintenance of the cabin during the use of the cabin. Plaintiff shall have exclusive use of the cabin during the dates and times set out above and the defendant shall not infringe in any way upon this right to use the cabin."
Elsie used the cabin frequently, had personal items there, and owned all the appliances and furniture in the cabin.
In 1982, Dependable obtained a judgment in the United States District Court against G.T. for $57,461.60. Pursuant to the judgment, G.T.'s interest in the property was sold by a United States marshal at a public sale and Dependable was the purchaser at the sale for $2500.00. By virtue of this sale, Dependable acquired all of the interest of G.T. in and to said cabin and his leasehold interest in the premises.
Prior to the judicial sale, attorneys for the parties entered into settlement negotiations. Tom Crawford, Dependable's attorney, offered to settle for $15,000.00 plus an assignment of the lease on Lay Lake. Richard Bell, G.T.'s attorney, rejected the lease offer and made a counteroffer of cash only. Bell stated that the offer was being made by his client's family and informed Crawford that Elsie would litigate any attempt to dispose of the leasehold interest in the property.
There is no indication that G.T. or Elsie received any notice of the sale; nor were they informed that they might have the right to redeem the property after the judicial sale.
Crawford testified that he advised Dependable's agent, Dan Love, as to when he could enter the cabin. Crawford advised Love to wait until the sale had been confirmed and that thereafter he could dispose of some personal items if it appeared that the items were not being used. Also, he told Love to retain personal items that appeared usable and to find the owners.
Dan Love and Bobby Doggrell first visited the cabin after confirmation of the sale and on this occasion changed the locks on the cabin. On their second visit, a few days later, certain items of personal property were removed from the cabin and taken to the landfill. Although some of the *806 items removed were ladies' clothing, Love testified that he did not know that there was anything in the cabin which belonged to anyone other than G.T.
The declaratory judgment held that Dependable succeeded to all the rights of G.T. in the property except and subject to the right of Elsie to use the cabin in accordance with the provisions of the divorce decree. The jury returned a verdict in favor of Elsie on her counterclaim, awarding $2380.00 as compensatory damages and $150,000.00 as punitive damages.
Dependable first argues that the trial court incorrectly concluded that Elsie had the right to continue using the Lay Lake cabin in accordance with the terms of the divorce decree, notwithstanding the purchase by Dependable at the U.S. marshal's sale. The trial court correctly ruled that the purchaser at an execution sale acquires only such interest as the defendant in the execution had. Barksdale v. Beasley, 260 Ala. 148, 69 So.2d 280 (1953). The title acquired at an execution sale relates back to the inception of the lien and takes priority over all transfers and incumbrances made subsequent to such inception. Barber v. Beckett, 251 Ala. 569, 39 So.2d 17, 19 (1949). The purchaser at an execution sale does not acquire interests created, prior to the inception of the lien, in persons other than the defendant in the execution. Therefore, since Dependable acquired the interest of G.T. and his interest was subject to the interest of Elsie, Dependable's interest in the Lay Lake cabin is subject to Elsie's previously created interest.
The appellant next asserts that the trial court erred in denying Dependable's motions for summary judgment, directed verdict, and JNOV or a new trial. Dependable contends that there was no evidence, or that there was insufficient evidence, of any malice or other circumstances on which to base Elsie's claim for punitive damages in the conversion action.
While Dependable does not question the right to recover punitive damages for a conversion, its main argument is that the requisite elements which would entitle Elsie to punitive damages are not present. Punitive damages are justified when the evidence discloses the conversion to have been willfully or fraudulently committed in known violation of law or an owner's rights with circumstances of insult, or contumely, or malice. Raley v. Royal Ins. Co., 441 So.2d 916 (Ala.Civ.App.1983). If the conversion is committed with the defendant knowing it is a violation of law and another's rights, then, as a matter of law, the conversion itself is legal insult, or contumely, or malice sufficient to justify an award of punitive damages. Roberson v. Ammons, 477 So.2d 957 (Ala.1985). In the presence of such evidence, punitive damages are within the sound discretion of the jury. Roberson, supra; Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358 (1955); Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961).
Dependable readily admits that there was evidence presented by which the jury could conclude that a conversion occurred. Additionally, from our reading of the record, we find sufficient evidence to support a finding that the conversion was committed in known violation of the law, as well as in violation of Elsie's rights.
Dependable's attorney had notice of the divorce and of the fact that Elsie planned to litigate to protect her interest in the property. Also, Dependable's argument is inconsistent when it argues that the converted property was abandoned, and yet seeks the court's aid in terminating Elsie's continued use of the property. By taking it upon itself to determine the property rights of another and acting upon its own decision, prior to a court's determination of the property rights, Dependable knowingly violated the rights of another; such a violation is sufficient to justify punitive damages. Roberson, supra.
On the basis of the evidence presented, the trial court correctly allowed the jury to decide the issue of punitive damages.
Dependable contends that the trial court erred in refusing its requested jury instruction regarding advice of counsel as a defense to a claim for punitive damages or *807 as a factor to be considered by the jury. Rule 51, Ala.R.Civ.P. states, in part:
"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds for his objection."
Since Dependable's attorney did not object to the trial court's failure to give this written instruction, this error was not properly preserved and will not be considered on appeal.
Dependable asserts that the trial court erred in denying its motion for JNOV or a new trial on the basis that the compensatory award of $2380.00 was inconsistent with the evidence. On direct examination by Dependable's attorney, Elsie testified as to the value of several of the converted items. From our reading of the record, the total of the values is $1288.00.
It is undisputed that this amount did not include any amount for the value of the belongings of Elsie's deceased son or some clothing belonging to one of Elsie's daughters. However, no evidence was introduced as to the value of these items. Since there was no evidence as to their value, the jury must have speculated in arriving at an award of $2380.00, and an award for compensatory damages cannot be based upon mere speculation. White v. Henry, 255 Ala. 7, 49 So.2d 779 (1950).
A judgment in excess of the amount authorized by the evidence can be upheld on the condition that the excess be remitted. White v. Henry, supra; Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 217 So.2d 505 (1973). Therefore, the award of compensatory damages is affirmed on the condition that, within 28 days, the appellee remit $1092.00 of the $2380.00 compensatory damages; otherwise, that award will be reversed.
The next issue is whether it was error for the trial court to deny the motion for JNOV or a new trial made on the grounds that the punitive damages are excessive. Whether punitive damages are excessive depends upon whether the judicial conscience is shocked, and unless prejudice or passion is indicated the award will not be reversed. Foster v. Floyd, 276 Ala. 428, 163 So.2d 213 (1964); Pinckard v. Dunnavant, 281 Ala. 533, 206 So.2d 340 (1968). There is no requirement that there be any relationship between actual and punitive damages, Foster v. Floyd, supra, and in certain circumstances, nominal damages alone will support an award for punitive damages. Coastal Concrete Co. v. Patterson, 503 So.2d 824, 830 (Ala.1987); Walker v. Cleary Petroleum Corp., 421 So.2d 85 (Ala. 1982); Raley v. Royal Ins. Co., 441 So.2d 916 (Ala.Civ.App.1983). The award of punitive damages is within the sound discretion of the jury, considering all attendant circumstances. Randell v. Banzhoff, 375 So.2d 445 (Ala.1979).
However, since this case involves a post-trial motion claiming the punitive damages to be excessive, it comes within the scope and intent of our recent case of Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). In that case we stated our reluctance to review, without benefit of the trial court's rationale, the issue of remittitur. It was never our intention to automatically remand every case in which "excessiveness" was an issue, and on further review we have narrowed the scope of Hammond so that it does not apply to an award exclusively for compensatory damages where evidence to support the award is clearly in the record. State v. McCurdy Concrete, 507 So.2d 403 (Ala.1987). In the case at hand, the issue is the alleged excessiveness of the punitive damages. This is precisely the situation Hammond, addressed. We again emphasize that Hammond requires the trial court to state its reasons, in the record, for granting or for denying remittitur. Because the record before us contains no stated rationale for the trial court's denial of the motion for remittitur, we remand this cause for the trial judge's reconsideration in light of Hammond.
The trial court, within its discretion, may order a further hearing on the remittitur matter or may comply with these instructions *808 without a further hearing. In any event, the trial court shall report its findings and conclusions to this Court within 28 days from the date of this opinion.
AFFIRMED CONDITIONALLY IN PART; AND REMANDED WITH INSTRUCTIONS AS TO PUNITIVE DAMAGES.
JONES, ALMON, ADAMS and STEAGALL, JJ., concur.
On Return to Remand
SHORES, Justice.
On May 1, 1987, this Court remanded this cause to the circuit court for its consideration of the issue of excessiveness of punitive damages, pursuant to the principles of Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). The trial court has complied with the remand instructions and has refused to order a remittitur. That action was properly supported by the trial court's order on remand. The judgment of the trial court is now affirmed.
AFFIRMED.
JONES, ALMON, ADAMS and STEAGALL, JJ., concur.
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL SALVADOR HERNANDEZ-
GUADARRAMA, No. 03-72084
Petitioner,
v. Agency No.
A75-268-684
JOHN ASHCROFT, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 5, 2004—Seattle, Washington
Filed January 10, 2005
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Reinhardt
263
266 HERNANDEZ-GUADARRAMA v. ASHCROFT
COUNSEL
Matt Adams, Northwest Immigrant Rights Project, Granger,
Washington, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division;
Richard M. Evans, Assistant Director; and Joan E. Smiley,
Trial Attorney, Office of Immigration Litigation, Civil Divi-
sion, U.S. Department of Justice, Washington, D.C., for the
respondent.
OPINION
REINHARDT, Circuit Judge:
Daniel Salvador Hernandez-Guadarrama (“Hernandez”), a
native and citizen of Mexico and a conditional permanent res-
ident of the United States, petitions for review of a decision
by the Board of Immigration Appeals (“BIA”). The BIA
affirmed an immigration judge’s (“IJ”) order finding him
removable from the United States for alien smuggling under
Section 237(a)(1)(E)(i) of the Immigration and Naturalization
Act (“INA”), 8 U.S.C. § 1227(a)(1)(E)(i). We have jurisdic-
tion over his petition pursuant to 8 U.S.C. § 1252, and con-
HERNANDEZ-GUADARRAMA v. ASHCROFT 267
clude that the government failed to establish removability by
“clear, unequivocal, and convincing evidence.” Woodby v.
INS, 385 U.S. 276, 286 (1966).
I.
Hernandez is married to a United States citizen and has
been a conditional permanent resident since November 17,
1997. On January 25, 1999, Hernandez and his wife were
driving back to their home in Sunnyside, Washington after a
visit to his mother in Mexico. While crossing Idaho via I-84,
the primary route linking the northwestern cities of Salt Lake
City, Boise, and Portland, they were stopped by INS Agents
Jackson and Sanford, who were conducting anti-smuggling
“traffic observations.” According to the agents’ written report,
when the Hernandez’s pick-up truck passed the agents’
unmarked, stationary vehicle at a speed of 75 mph, no one in
the truck made eye contact with the agents and the passengers
appeared rigid and nervous. The agents noticed a Hispanic
male sitting in the camper shell. Based on their “knowledge”
that I-84 is a “notorious route for . . . illegal alien smugglers,”
they decided to follow Hernandez’s truck. While trailing the
vehicle, the officers ran the plates and discovered that it was
registered to an address in Sunnyside, Washington, a rural
community that, according to the officers, is “notorious for
the presence of illegal aliens.” A customs check revealed that
the vehicle had crossed the border two days earlier. After tail-
ing the vehicle for approximately fifteen minutes and noticing
additional passengers in the bed of the pick-up in a camper
shell, the officers pulled the truck over and questioned the
occupants about their citizenship. Upon establishing that
seven of the occupants were illegal aliens, the agents took the
aliens to a nearby station for processing and ordered Her-
nandez and his wife to follow them there as well.
At the station, Agents Sanford and Jackson filled out I-213
forms1 for Hernandez and all the illegal aliens. They also gave
1
An I-213 is the form upon which immigration officers record the bio-
graphical information of an apprehended alien and describe the details sur-
268 HERNANDEZ-GUADARRAMA v. ASHCROFT
Miranda warnings to one of the illegal aliens, Columba
Landa-Samano, a Mexican national who had previously been
deported from the United States, and elicited a sworn state-
ment from her. According to that statement, Hernandez and
his wife picked up the seven individuals in their home town
in Mexico and drove them to a town near the Mexico-United
States border. They dropped the seven passengers off before
they reached the border, at which point the passengers made
arrangements with a smuggler to cross into the United States.
The seven aliens each paid the smuggler $750, and after they
crossed the border, the smuggler made arrangements for them
to meet up with Hernandez in Phoenix, Arizona. From there,
they expected to ride with him to Prosser, Washington.
Agents Sanford and Jackson also interrogated Hernandez’s
wife and obtained a statement from her regarding the trip back
from Mexico. However, according to her subsequent affidavit,
the agents lied to her in order to induce her to make the state-
ment, explaining that if she gave the same story as one of the
illegal aliens, there would be no immigration consequences
for her husband.
The government did not bring criminal charges against
Hernandez. Rather, it accused him of violating 8 U.S.C.
§ 1227(a)(1)(E)(i) and began civil removal proceedings.
Under § 1227(a)(1)(E)(i), “Any alien who (prior to the date of
entry, at the time of any entry, or within 5 years of the date
of any entry) knowingly has encouraged, induced, assisted,
abetted or aided any other alien to enter or try to enter the
United States in violation of law is deportable.”
Before Hernandez’s deportation hearing began, he moved
to suppress evidence obtained as a result of the stop, alleging
that the stop constituted an egregious violation of his Fourth
rounding the alien’s arrest. It is entitled “Record of Deportable/
Inadmissible Alien.”
HERNANDEZ-GUADARRAMA v. ASHCROFT 269
Amendment rights because race was the motivating factor.
According to Hernandez, the other reasons given by the
agents to justify the stop were insufficient to establish reason-
able suspicion under the law. In addition, he challenged the
admissibility of his wife’s statement, both because of the
agents’ alleged prevarication and because, he contended, the
arresting officer performed the interrogation in violation of 8
C.F.R. § 287.3.2 He also asked that the proceedings be termi-
nated. The IJ rejected Hernandez’s Fourth Amendment argu-
ment and then held that, even assuming that his wife’s
statement was inadmissible, the government had presented
sufficient evidence to proceed with the case.
At the hearing, the two arresting officers testified, but the
IJ refused Hernandez’s request to cross-examine them regard-
ing the basis for the stop. Columba Landa-Samano did not
testify, and the IJ admitted her statement over Hernandez’s
objection. The IJ asked the government to withdraw Her-
nandez’s wife’s statement from consideration in order to
avoid unnecessary delay. The government agreed and the IJ
stated that he would not consider the statement or any refer-
ences to it.3
In his oral decision, the IJ concluded that the government
had demonstrated by clear and convincing evidence that Her-
2
8 C.F.R § 287.3(a) states:
Examination. An alien arrested without a warrant of arrest under
the authority contained in section 287(a)(2) of the Act will be
examined by an officer other than the arresting officer. If no other
qualified officer is readily available and the taking of the alien
before another officer would entail unnecessary delay, the arrest-
ing officer, if the conduct of such examination is a part of the
duties assigned to him or her may examine the alien.
Although Hernandez’s wife is a citizen, the BIA did not address this point,
instead discussing only the regulation’s applicability to Hernandez.
3
Hernandez testified at the hearing but refused to answer questions
relating to his arrest and the presence of the aliens in the pick-up truck,
claiming the Fifth Amendment privilege against self-incrimination.
270 HERNANDEZ-GUADARRAMA v. ASHCROFT
nandez aided in the illegal entry of the seven illegal aliens in
violation of 8 U.S.C. § 1227(a)(1)(E)(i). He further ruled that,
because Hernandez had committed the offense charged, he
lacked good moral character and was ineligible for voluntary
departure.
One member of the BIA issued an opinion affirming the IJ.
According to the BIA, Hernandez’s actions fell under 8
U.S.C. § 1237(a)(1)(E)(i) because “he was part of the prear-
ranged plan to bring [the aliens] to the border and part of the
prearranged plan to meet them on the other side of the bor-
der.” Further, the BIA held that Hernandez’s due process and
Fourth Amendment rights had not been violated.
II.
On review, Hernandez renews the arguments he made
before the BIA: (1) that the IJ erred in refusing to suppress all
evidence resulting from the vehicle stop; (2) that the IJ
deprived him of his due process rights in limiting his ability
to cross-examine witnesses and in admitting statements taken
in violation of the agency’s own regulations; (3) that, even
assuming the government’s allegations to be true,
§ 1227(a)(1)(E)(i) does not apply to him because he was not
involved in the illegal aliens’ actual border crossing; and (4)
that, even if the statute covers more than assistance with the
physical border crossing, the government failed to meet its
evidentiary burden of demonstrating his culpability by clear,
unequivocal, and convincing evidence.
We reject Hernandez’s overly narrow construction of
§ 1227(a)(1)(E)(i) and affirm the BIA’s interpretation that the
government need not prove direct participation in the physical
border crossing. However, the limited evidence upon which
the government relies was not subject to cross-examination
and is insufficiently reliable to support a decision to remove
an alien. We hold that the government failed to prove its case
by clear, unequivocal, and convincing evidence. See Woodby
HERNANDEZ-GUADARRAMA v. ASHCROFT 271
v. INS, 385 U.S. 276, 286 (1966); see also, e.g., Cortez-
Acosta v. INS, 234 F.3d 476, 482 (9th Cir. 2000); Murphy v.
INS, 54 F.3d 605, 612 (9th Cir. 1995). Because we decide the
case on that basis, we do not consider Hernandez’s Fourth
Amendment arguments.4
A. Construction of 8 U.S.C. § 1227(a)(1)(E)(i)
The question whether 8 U.S.C. § 1227(a)(1)(E)(i) applies
only to those individuals who participate in the physical
border-crossing implicates the “agency’s construction of the
statute [that] it administers.” See INS v. Aguirre-Aguirre, 526
U.S. 415, 424 (1999) (quoting Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). Thus, we
apply the principles of deference described in Chevron, 467
U.S. at 842. Under Chevron, we must first consider “whether
Congress has directly spoken to the precise question at issue.”
Id. at 842. “If Congress has done so, the inquiry is at an end;
the court ‘must give effect to the unambiguously expressed
intent of Congress.’ ” FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000) (quoting Chevron, 467 U.S.
at 843). If we conclude that the statute is silent or ambiguous
with respect to the specific issue before us, we must respect
the agency’s construction of the statute so long as it is permis-
sible. Aguirre-Aguirre, 526 U.S. at 424; see also INS v.
Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987).
[1] “The starting point for our interpretation of a statute is
always its language.” Cmty. for Creative Non-Violence v.
Reid, 490 U.S. 730, 739 (1989). Section 237 of the INA, 8
U.S.C. § 1227(a)(1)(E)(i), states that, “Any alien who . . .
4
We do not understand, however, the rationale for the IJ’s refusal to
allow Hernandez’s counsel to cross-examine the officers about the alleg-
edly unlawful stop. We note that, in a deportation proceeding, evidence
that is obtained as a result of an “egregious violation” of the Fourth
Amendment must be suppressed. Gonzales-Rivera v. INS, 22 F.3d 1441,
1448-49 (9th Cir. 1994). A stop based on race would be such a violation.
Id. at 1452; see also Orhorhaghe v. INS, 38 F.3d 488, 503 (9th Cir. 1994).
272 HERNANDEZ-GUADARRAMA v. ASHCROFT
knowingly has encouraged, induced, assisted, abetted, or
aided any other alien to enter or to try to enter the United
States in violation of law is deportable.” Thus, Hernandez is
correct that, unlike its criminal counterpart, INA § 274, 8
U.S.C. § 1324 (a)(1)(A)(i), the civil provision that makes
smuggling a deportable offense does not cover mere transpor-
tation or harboring of aliens within the United States. How-
ever, he is incorrect that the government must demonstrate
either that the accused individual actually transported the
aliens into the United States or that he personally made the
arrangements with the smuggler. The statute’s plain language
unquestionably applies to a broader array of conduct. An indi-
vidual may knowingly encourage, induce, assist, abet, or aid
with illegal entry, even if he did not personally hire the smug-
gler and even if he is not present at the point of illegal entry.
[2] Our interpretation accords with that of the BIA and
other circuits. As the BIA stated in this case, an individual
charged with deportability who knowingly participated in a
“prearranged plan to bring [illegal aliens] to the border, and
. . . to meet them on the other side of the border,” falls under
the purview of the statute. See also Sanchez-Marquez v. INS,
725 F.2d 61, 63 (7th Cir. 1984) (holding that petitioner’s
promise to transport aliens to and from the border in exchange
for compensation constituted assistance with entry in viola-
tion of civil smuggling provision); Matter of Vargas-
Banuelos, 13 I. & N. Dec. 810 (BIA 1971).5
B. Sufficiency of Evidence and the Right to Cross-examine
In order to deport Hernandez, the government must prove
5
Hernandez’s reliance on Matter of I.M., 7 I. & N. Dec. 389 (BIA 1957)
is misplaced. That decision held that mere transportation within the United
States is not covered by the civil statute, but left open the possibility that
aiding or assisting in entry by means of a prearranged plan is. In Matter
of Romerao, 22 I. & N. Dec. 486 (BIA 1999), the BIA did not reach the
question of the scope of the civil provision.
HERNANDEZ-GUADARRAMA v. ASHCROFT 273
“by clear, unequivocal, and convincing evidence that the facts
alleged as grounds for deportation are true.” Gameros-
Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989) (citing
Woodby v. INS, 385 U.S. 276, 286 (1966)); see also 8 U.S.C.
§ 1229a(c)(3)(A). “Although we review for reasonable, sub-
stantial, and probative evidence in the record as a whole,” we
affirm only if “the [agency] has successfully carried this
heavy burden of clear, unequivocal, and convincing evi-
dence.” Cortez-Acosta v. INS, 234 F.3d 476, 481 (9th Cir.
2000) (per curiam) (internal citations and quotation marks
omitted); see also Nakamoto v. Ashcroft, 363 F.3d 874, 882
(9th Cir. 2004) (explaining that the court must determine
“whether substantial evidence supports a finding by clear and
convincing evidence”). “Where, as here, the BIA conducts a
de novo review and issues its own decision, rather than adopt-
ing the IJ’s decision as its own, we review the BIA’s deci-
sion.” Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004).
[3] Only three pieces of evidence support the BIA’s deter-
mination that Hernandez participated in a prearranged plan to
transport the aliens to and from the border in violation of 8
U.S.C. § 1227(a)(1)(E)(i): (1) Hernandez’s wife’s statement,
(2) an I-213 with Hernandez’s name on it; and (3) Columba
Landa-Samano’s statement.6
6
Contrary to the BIA’s opinion, the I-213s for the transported aliens
other than Landa-Samano provide no support for the charge. These I-213s
simply identify each alien, state that he or she was apprehended in a truck
driven by Hernandez, and state that the alien paid an unknown smuggler
to cross the border. They in no way indicate that Hernandez helped the
aliens enter the United States.
Furthermore, unlike the IJ, the BIA did not state that it drew any
adverse inference from Hernandez’s decision to invoke his Fifth Amend-
ment right against self-incrimination. Therefore, we do not decide whether
such an inference would have been appropriate. See Iran v. INS, 656 F.2d
469, 473 n.9 (9th Cir. 1981) (declining to consider whether an adverse
inference would be appropriate because the BIA did not rely on such an
inference in reaching its decision). We note, however, that because of the
274 HERNANDEZ-GUADARRAMA v. ASHCROFT
[4] The BIA appears to have placed significant weight on
the statement given by Hernandez’s wife. However, as dis-
cussed previously, Hernandez argues that his wife’s statement
was obtained as a result of the agents’ false promises and that
her interrogation violated 8 C.F.R. § 287.3. In order to avoid
a “lengthy examination” regarding the validity of these allega-
tions, the IJ asked the government to withdraw the statement.
The government agreed and the IJ stated that he would not
consider it or any references to it. Given the government’s
representation at the time of the hearing, it cannot now rely
upon the statement.7 Thus, we must disregard it in determin-
ing whether the government has met its burden by clear,
unequivocal, and convincing evidence.
[5] Hernandez’s I-213 form also merits no evidentiary
weight. Although it states that he helped the aliens enter ille-
gally, the government does not contend that the source of the
information on the form was Hernandez. Rather, the I-213
differences between the criminal and civil anti-smuggling statutes, Her-
nandez’s decision not to testify does not necessarily warrant an adverse
inference regarding deportability. Cf. United States v. Alderete-Deras, 743
F.2d 645, 648 (9th Cir. 1984) (alien’s refusal to testify in a deportation
hearing may form the basis of inferences against him under some circum-
stances). In order to be criminally prosecuted, Hernandez need only have
knowingly transported the illegal aliens within the United States, see 8
U.S.C. § 1324 (a)(1)(A)(ii), whereas in order for an alien to be deportable
under 8 U.S.C. § 1227(a)(1)(E)(i), an action with respect to entry is
required. Thus, had Hernandez testified that he did not assist with entry
but did transport the aliens within the United States, he would have
explained why he was not deportable under the civil provision, but would
have subjected himself to prosecution under the criminal provision.
7
Even if the government had not so agreed, the statement might well
merit little evidentiary weight in light of the allegations of procedural
irregularities and willful misrepresentation by the interrogating officers.
Cf. Laipenieks v. INS, 750 F.2d 1427, 1435, 1437 (9th Cir. 1985) (holding
that the government failed to establish deportability by “clear, convincing
and unequivocal evidence” because procedural irregularities “seriously
undermine[d] the trustworthiness of the statements made”).
HERNANDEZ-GUADARRAMA v. ASHCROFT 275
merely refers to the sworn statements of Hernandez’s wife
and of Landa-Samano. In so doing, it provides no additional
evidence but simply reiterates the statement provided by Her-
nandez’s wife, which as we have previously explained cannot
be considered, and the statement given by Landa-Samano,
which we address below.8 The I-213 is of no independent
value and therefore is entitled to no evidentiary weight. Cf.
Murphy v. INS, 54 F.3d 605, 610-11 (9th Cir. 1995) (holding
that an I-213 form merited little if any weight where petitioner
disputed the information on the form and the source of the
information was in doubt).9
[6] Without the I-213 and Hernandez’s wife’s statement,
Landa-Samano’s statement is the only evidence of Her-
nandez’s role in assisting the aliens by transporting them to
the border and picking them up on the other side. However,
Hernandez was never afforded the opportunity to cross-
examine Landa-Samano.
The INA expressly requires that an alien be granted “a rea-
sonable opportunity to examine the evidence against the alien,
to present evidence on the alien’s own behalf, and to cross-
examine witnesses presented by the Government . . . .” 8
U.S.C. § 1229a(b)(4)(B) (emphasis added); see also 8 C.F.R.
§ 1240.10(a)(4) (stating that the IJ shall “[a]dvise the respon-
dent that he or she will have a reasonable opportunity to
examine and object to the evidence against him or her . . . and
to cross examine witnesses presented by the government.”).10
8
Hernandez’s I-213 also refers to the agents’ written report of the arrest.
However, this report again relies only on the same two statements.
9
By contrast, in Espinoza v. INS, 45 F.3d 308, 309 (9th Cir. 1995) we
held that an authenticated I-213 form was probative on the issue of illegal
entry. However, we specifically noted that the information on an I-213
could not be presumed true when the source of that information was nei-
ther a government official nor the subject of the report, or where there was
evidence of unreliability. Id. at 310.
10
The only limitation the statute places on that right is that the alien
shall not be entitled “to examine such national security information as the
Government may proffer . . . .” 8 U.S.C.A. § 1229a(b)(4)(B).
276 HERNANDEZ-GUADARRAMA v. ASHCROFT
Moreover, the Fifth Amendment’s “Due Process Clause
applies to all ‘persons’ within the United States, including
aliens,” Zadvydas v. Davis, 533 U.S. 678, 693 (2001), and
requires that aliens be given a reasonable opportunity to con-
front and cross-examine witnesses.11
[7] Although the rules of evidence are not applicable to
immigration hearings, Baliza v. INS, 709 F.2d 1231, 1233-34
(9th Cir. 1983), the constitutional and statutory guarantees of
due process require that “ ‘the government’s choice whether
to produce a witness or to use a hearsay statement [not be]
wholly unfettered.’ ” Saidane v. INS, 129 F.3d 1063, 1065
(9th Cir. 1997) (quoting Baliza, 709 F.2d at 1234). As we
explained in Saidane,
[t]he test as to whether a hearsay affidavit has been
properly admitted is whether the statement is proba-
tive and whether its admission was fundamentally
fair. Thus, we require that the government must
make a reasonable effort in INS proceedings to
afford the alien a reasonable opportunity to confront
the witnesses against him or her.
129 F.3d at 1065 (internal citations, quotation marks and
alterations omitted); see also Cunanan v. INS, 856 F.2d 1373,
1375 (9th Cir. 1988). In short, “the INS may not use an affi-
11
See, e.g., Saidane v. INS, 129 F.3d 1063, 1066 (9th Cir. 1997) (hold-
ing that in a deportation proceeding the government denied petitioner due
process when it “did not make a good faith effort to afford the alien a rea-
sonable opportunity to confront and to cross-examine the witness against
him”); Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir. 1988) (same); Bal-
iza v. INS, 709 F.2d 1231, 1234 (9th Cir. 1983) (same); see also Goldberg
v. Kelly, 397 U.S. 254, 269 (1970) (“In almost every setting where impor-
tant decisions turn on questions of fact, due process requires an opportu-
nity to confront and cross-examine adverse witnesses.”); Akinwande v.
Ashcroft, 380 F.3d 517, 522 (1st Cir. 2004) (holding that no due process
violation occurred when immigrant was allowed to cross-examine govern-
ment witnesses at length).
HERNANDEZ-GUADARRAMA v. ASHCROFT 277
davit from an absent witness ‘unless the INS first establishes
that, despite reasonable efforts, it was unable to secure the
presence of the witness at the hearing.’ ” Ocasio v. Ashcroft,
375 F.3d 105, 107 (1st Cir. 2004) (quoting Olabanji v. INS,
973 F.2d 1232, 1234 (5th Cir. 1992)); see also Saidane, 129
F.3d at 1065; Hernandez-Garza v. INS, 882 F.2d 945, 948
(5th Cir. 1989); Dallo v. INS, 765 F.2d 581, 586 (6th Cir.
1985).
[8] In this case, when Hernandez asked to cross-examine
Landa-Samano, the IJ initially agreed that cross-examination
was necessary. In response, the government explained that it
had already deported her. The IJ then shifted the burden of
producing Landa-Samano to Hernandez, reasoning that Her-
nandez was in a better position than the INS to locate her in
Mexico, because she was from his hometown. In so doing, the
IJ erred: It is clear that “the burden of producing a govern-
ment’s hearsay declarant that [a petitioner] may wish to cross-
examine” is on the government, not the petitioner. Cunanan,
856 F.2d at 1375; see also Saidane, 129 F.3d at 1065-66. The
government may not evade its obligation to produce its wit-
ness by taking affirmative steps, such as deportation, that ren-
der the witness unavailable. Indeed, the government’s burden
is greater, not lesser, when it exercises custodial power over
the witness in question. Because, in this case, the government
failed to make any “reasonable effort” to produce the hearsay
declarant, and indeed, took action to render her unavailable,
the admission of her statement was fundamentally unfair. See
Cunanan, 856 F.2d at 1375; see also Saidane, 129 F.3d at
1065 (holding that minimal effort of an IJ, such as issuing a
subpoena to the petitioner to serve on the witness, “cannot
suffice to satisfy the government’s obligation to make reason-
able efforts to produce its witnesses”); Hernandez-Garza, 882
F.2d at 948 (holding that the government’s efforts to produce
adverse witnesses were insufficient where it simply sent a let-
ter to one of the witnesses).
278 HERNANDEZ-GUADARRAMA v. ASHCROFT
[9] Moreover, when Landa-Samano gave her statement to
the arresting officers, she was herself at risk of a felony prose-
cution under 8 U.S.C. § 1326 because she had previously
been deported and had reentered the country illegally. Thus
she was not, by any means, a disinterested witness. Even if
her affidavit were admissible notwithstanding the govern-
ment’s failure to make reasonable efforts to obtain her pres-
ence at the hearing, the fact that the inculpatory statements
were never subject to cross-examination and the fact that she
had a substantial personal interest in providing the testimony
she did, true or false, would significantly undermine the affi-
davit’s reliability.12 Given these circumstances, the affidavit,
standing alone, could not constitute sufficient evidence to
prove removability under the clear, unequivocal, and convinc-
ing standard. See Murphy, 54 F.3d at 612; Hernandez-Garza,
882 F.2d at 945.
[10] As the Supreme Court declared in Woodby, the ties
that legal residents develop to the American communities in
which they live and work, should not be lightly severed:
This Court has not closed its eyes to the drastic
deprivations that may follow when a resident of this
country is compelled by our Government to forsake
all the bonds formed here and go to a foreign land
12
Furthermore, Hernandez asserts that Landa-Samano’s statement, like
his wife’s, was taken in violation of the agency’s own regulatory require-
ment that “[a]n alien arrested without a warrant of arrest under the author-
ity contained in section 287(a)(2) of the Act will be examined by an
officer other than the arresting officer.” 8 C.F.R § 287.3(a). Although the
regulation allows the arresting officer to perform the interrogation when
“no other qualified officer is readily available and the taking of the alien
before another officer would entail unnecessary delay,” Agent Sanford
conceded that other officers were available, and the government did not
suggest that questioning by another officer would have entailed unneces-
sary delay. However, we do not base our conclusion regarding Landa-
Samano’s statement on this ground, at least in part because on the record
before us we are unable to make a conclusive determination as to whether
a violation occurred.
HERNANDEZ-GUADARRAMA v. ASHCROFT 279
where he often has no contemporary identification.
In words apposite to the question before us, we have
spoken of “the solidity of proof that is required for
a judgment entailing the consequences of deporta-
tion.”
Woodby, 385 U.S. at 285 (quoting Rowoldt v. Perfetto, 355
U.S. 115, 120 (1957)); see also Gameros-Hernandez, 883
F.2d at 841. In this case, the government’s proof (even if it
were admissible) is not sufficient to carry its “very demand-
ing” burden. See Cortez-Acosta, 234 F.3d at 481; see also
Murphy, 54 F.3d at 612; Hernandez-Garza, 882 F.2d at 948;
Guzman-Guzman v. INS, 559 F.2d 1149, 1150 (9th Cir. 1977).
A single affidavit from a self-interested witness not subject to
cross-examination simply does not rise to the level of clear,
unequivocal, and convincing evidence required to prove
deportability. We vacate the order of deportation and reverse
the BIA’s decision.13
VACATED and REVERSED.
13
See Carbajal-Gonzalez v. INS, 78 F.3d 194, 201 (5th Cir. 1996)
(vacating and reversing because the charges of deportation were not sup-
ported by the record); cf. Ramon-Sepulveda v. INS, 824 F.2d 749, 750-51
(9th Cir. 1987) (holding that prior decision, which held that the INS failed
to prove that petitioner was deportable, was res judicata, and therefore INS
was “precluded from seeking to deport petitioner based on matters that
were resolved in the earlier deportation proceeding”); Medina v. INS, 993
F.2d 499, 503-04 (5th Cir. 1993) (same); Johnson v. Ashcroft, 378 F.3d
164, 172 n.10 (2d Cir. 2004) (noting that res judicata applies in immigra-
tion proceedings).
|
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Baumann, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Kellogg Company), : No. 2603 C.D. 2015
Respondent : Submitted: June 17, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COVEY FILED: September 23, 2016
David Baumann (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) November 20, 2015 order
affirming the Workers’ Compensation Judge’s (WCJ) decision on remand granting
Kellogg Company’s (Employer) Petition to Terminate Claimant’s WC benefits (2010
Termination Petition), and granting Claimant’s Petition for Penalties (Penalty
Petition). The issues before this Court are: (1) whether the Board erred by affirming
the WCJ’s decision granting Employer’s 2010 Termination Petition; and (2) whether
the Board erred by affirming the WCJ’s decision granting Claimant’s Penalty
Petition, but awarding a 0% penalty. After review, we affirm.
On May 5, 2007, Claimant suffered a right shoulder and upper back
strain as a result of a car accident that occurred during the course and scope of his
employment as a sales representative for Employer. Employer issued a notice of
compensation payable (NCP) and paid Claimant WC benefits. By August 28, 2008
WCJ order, Claimant’s injury description was amended by stipulation to include a
right C-6 radiculopathy.
On March 16, 2009, Employer filed a petition to terminate Claimant’s
WC benefits (2009 Termination Petition). Hearings were held before WCJ Bruce
Doman (WCJ Doman), at which Employer offered the June 2, 2009 deposition of
neurologist Richard Bennett, M.D. (Dr. Bennett) who conducted a January 7, 2009
independent medical evaluation (IME), and Claimant testified and offered the
September 15, 2009 deposition of orthopedic surgeon Norman Stempler, M.D. (Dr.
Stempler). By November 23, 2009 decision, WCJ Doman denied the 2009
Termination Petition. See Certified Record (C.R.), Claimant Ex. C-2.
On December 2, 2009, Employer filed a petition to modify Claimant’s
WC disability benefits from full to partial (Modification Petition), based upon the
results of an October 26, 2009 IME. Claimant denied the allegations in the
Modification Petition.
On March 11, 2010, Claimant filed the Penalty Petition, wherein he
averred that Employer violated the WC Act (Act)1 when it notified Claimant’s
surgeon that Employer would not pay for Claimant’s March 18, 2010 right shoulder
surgery, which resulted in the surgery’s cancellation. Employer denied the
allegations in the Penalty Petition.
On May 4, 2010, Claimant underwent a second IME conducted by Dr.
Bennett, following which Dr. Bennett opined that Claimant had fully recovered from
his May 5, 2007 work accident and could return to full-duty work without restriction.
On July 21, 2010, Employer filed the 2010 Termination Petition based upon Dr.
Bennett’s conclusion.
Hearings were conducted before WCJ Tina Rago (WCJ Rago)2 relative
to Employer’s Modification and Termination Petitions, and Claimant’s Penalty
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708.
2
The Modification Petition was initially assigned to WCJ Doman, but was re-assigned to
WCJ Thomas Devlin (WCJ Devlin) when Claimant relocated to Philadelphia. The Modification,
2
Petition. At the WCJ hearings, Employer presented Dr. Bennett’s November 2, 2010
deposition wherein Dr. Bennett testified that, as part of Claimant’s May 4, 2010 IME,
he reviewed Claimant’s electromyogram (EMG) and magnetic resonance imaging
(MRI) history, and his 2009 and 2010 medical records from Dr. Steven Cohen (Dr.
Cohen), Craig Rubenstein M.D. (Dr. Rubenstein) and others. See Supplemental
Reproduced Record (S.R.R.) at 101b, 126b-130b; Reproduced Record (R.R.) at 2a-
6a. Dr. Bennett reported that Dr. Cohen’s records paralleled his in terms of
Claimant’s pathology, Dr. Cohen recommended surgery only as a last resort,
Claimant’s July 14, 2009 right shoulder MRI appeared normal, and his July 13, 2009
cervical spine MRI reflected only minor bulges and degenerative changes similar to
Claimant’s June 4, 2007 MRI. See S.R.R. at 104b-105b. Dr. Bennett declared that
Claimant’s May 14 and August 25, 2009 EMG report results were non-specific, non-
diagnostic and not consistent with multi-level cervical radiculopathy. See S.R.R. at
105b, 109b. Dr. Bennett also observed that Dr. Rubenstein did not feel that Claimant
was a good candidate for right shoulder surgery, but rather referred him to a sports
specialist. See S.R.R. at 105b, 107b.
Dr. Bennett recalled that during the May 4, 2010 IME, Claimant
complained of persistent right shoulder clicking with pain and intermittent numbness
down his arm and into his fingers. See S.R.R. at 101b-102b. Dr. Bennett described,
based upon Claimant’s physical exam, that Claimant did not demonstrate obvious
muscle wasting, weakness or scapula winging, he had no right arm or wrist muscle
atrophy or weakness or spasms and Claimant had normal wrist flexion and upper arm
strength. See S.R.R. at 102b. Dr. Bennett opined within a reasonable degree of
medical certainty that, based upon his review of Claimant’s history, records and his
physical examination, Claimant was “fully recovered from all aspects of [his work
Termination and Penalty Petitions were ultimately assigned to WCJ Rago upon WCJ Devlin’s
retirement.
3
accident]” (S.R.R. at 105b-106b), did not require any further treatment, interventional
therapy or surgery, and could return to his pre-injury job “without any restrictions
whatsoever.” S.R.R. at 106b.
Claimant offered his April 29, 2010 deposition testimony, and also
appeared at the November 22, 2010 WCJ hearing. Claimant testified that although he
continues to see Dr. Stempler approximately every four to eight weeks, he has not
undergone physical therapy since 2007, he has not treated with a neurologist since the
beginning of 2009, he has not received any epidural injections, and Dr. Stempler has
not prescribed medications for him since the end of 2009. See S.R.R. at 9b, 11b-13b,
17b, 22b, 47b, 77b, 84b-85b. Claimant stated that he sees his family physician
Jonathan Levin, M.D. (Dr. Levin), approximately every two months just to talk and,
although Dr. Levin has not treated him for work-related injuries, he has prescribed
Vicodin and Xanax for him. See S.R.R. at 8b, 12b-14b, 75b, 77b. Claimant added at
the November 2010 hearing that his counsel referred him to pain specialist Daphne
Golding, M.D. (Dr. Golding), with whom he treats approximately every 3 weeks, and
who has prescribed medications including Xanax, Diazepam, Phenazepam, Morphine
and Oxycodone. See S.R.R. at 75b, 77b, 84b.
Claimant reported that he has limited rotation and range in his right
shoulder, and he experiences a painful popping when he moves it. See S.R.R. at 27b.
He explained that a thoracic nerve in his right shoulder makes it “feel[] like it’s on
fire all the time.” S.R.R. at 28b. Claimant related that his neck pain radiates into his
shoulder, which causes numbness in spots in his right arm and into his right thumb,
ring and index fingers, and also results in sleeping difficulties. See S.R.R. at 28b-
29b, 78b. He contends that his pain has worsened over the year leading to his
deposition, particularly since the beginning of December 2009. See S.R.R. at 53b-
54b, 79b. Claimant also declared that his injuries have caused him to suffer
4
depression3 and anxiety, which has led to him becoming a recluse. See S.R.R. at 30b,
36b, 40b, 42b, 80b. He pronounced that he has not worked since 2007 and, although
he initially asked Employer to give him light-duty work until he recovered, he no
longer thinks he could work in any capacity due to his pain and medications, and
sitting makes him stiff, which further aggravates his symptoms. See S.R.R. at 31b-
33b, 79b.
Claimant testified that he stretches, reads, watches movies, cares for his
dogs and occasionally uses his laptop computer or his PlayStation 3 to pass the time.
See S.R.R. at 38b-39b, 80b. He disclosed that he was a very good guitar player who
used to play in bands and, although he sang with a couple of bands and did some
studio track work after the accident, he did not perform in 2009 or 2010. See S.R.R.
at 39b-40b. Claimant revealed during his April 2010 deposition that he planned to go
back to community college to earn a nursing degree, and completed applications in
February 2010 for entry in fall 2010, but had not yet been accepted. See S.R.R. at
45b. However, he expressed concern that college may not be possible due to his
anxiety, having to sit in class for more than an hour at a time, and carrying a book
bag. See S.R.R. at 51b-53b. At the November 2010 hearing, Claimant revealed that
he did not follow through with his school plan because he did not think he could carry
a backpack. See S.R.R. at 87b-88b.
Claimant recounted that he vacationed at the beach with his family in
2008, but did not take any trips in 2009 or early 2010. See S.R.R. at 51b. A few
weeks before his deposition, he visited a friend in Los Angeles and, while there, got a
tattoo on his right wrist. See S.R.R. at 47b. Claimant admitted that he also got a
tattoo on his right arm within the year after his work accident during approximately
3
Claimant admitted that he suffered from and was prescribed medication for depression
before his work accident. See S.R.R. at 41b.
5
seven 1-hour sessions. See S.R.R. at 47b-49b. Claimant represented that he did not
feel the needles when he got his right arm tattoos. See S.R.R. at 50b.
Claimant also presented Dr. Stempler’s July 6, 2010 deposition, wherein
Dr. Stempler testified that he initially treated Claimant on July 31, 2007 and
diagnosed Claimant with degenerative disc disease and ongoing right cervical
radiculopathy overlapping with a chronic peritendonitis bursitis with right shoulder
impingement related to his May 5, 2007 work accident. Dr. Stempler recalled
treating Claimant with medication, therapy, exercise and palliative treatment and,
ultimately, referred him to the Rothman Orthopaedic Institute for a surgery
consultation. Dr. Stempler opined that Claimant is “as good as he’s going to get”
without surgery. Certified Record, Dr. Stempler 7/6/10 Notes of Testimony
(Stempler N.T.) at 12.
Dr. Stempler recalled that Claimant had a May 2009 EMG/nerve
conduction study that revealed his right C-6 and bilateral C-5 radiculopathy, a July
14, 2009 right shoulder MRI which demonstrated tendon thickening from chronic
inflammation and impingement, and a July 13, 2009 cervical spine MRI that reflected
some degenerative changes. Dr. Stempler described that “there’s episodes of acute
recurrence of symptoms where [Claimant] can’t use the extremity at all.” Stempler
N.T. at 17. Dr. Stempler admitted that Claimant did not receive physical therapy
after 2008, he did not receive any epidural injections in 2009, and that he did not
deem Claimant a surgical candidate until the end of 2009. Dr. Stempler disclosed
that he has prescribed Tylenol with codeine for Claimant’s pain and Klonopin for
anxiety, plus recommended home exercises. Dr. Stempler reported that Claimant has
very limited use of his right shoulder that has “cost him a career as a professional
musician.” Stempler N.T. at 11. When asked regarding Claimant’s ability to work,
Dr. Stempler stated:
6
Well, he is just so uncomfortable with the use of his
dominant extremities. It’s very difficult for him to really
perform anything, but his exercise and take his medication
in which often times does make him drowsy. So, it’s
probably not wise for him to continue [] doing anything
until his shoulder situation is resolved or improved at least.
Stempler N.T. at 22-23.
By December 13, 2011 decision, WCJ Rago deemed Claimant’s
testimony of ongoing shoulder pain not credible because he had not treated for it
since December 2009, his activities included playing guitar and video games, and he
was able to get a tattoo on his right arm. WCJ Rago found Dr. Bennett’s testimony of
Claimant’s full recovery credible because he examined Claimant on two occasions,
and because Dr. Bennett’s opinion was consistent with the opinions of Claimant’s
other doctors, his diagnostic studies and his activity level. Accordingly, WCJ Rago
granted Employer’s 2010 Termination Petition and dismissed Employer’s
Modification Petition as moot. WCJ Rago also granted Claimant’s Penalty Petition
because Employer violated the Act by failing to pay for Claimant’s shoulder surgery
without the benefit of an opposing medical opinion or Dr. Bennett’s May 4, 2010
evaluation. However, WCJ Rago imposed a 0% penalty without stating the basis for
her decision.
Claimant appealed from WCJ Rago’s decision to the Board. By January
17, 2014 order, the Board remanded the matter for WCJ Rago to determine whether
Employer met its burden of proving that Claimant’s medical condition had changed
since the 2009 Termination Petition was adjudicated, to reconsider the 2010
Termination Petition, and to render findings regarding why she imposed a 0%
penalty.
By December 10, 2014 decision after remand, WCJ Rago again granted
Employer’s 2010 Termination Petition and Claimant’s Penalty Petition, but declared
that under the facts of this case, Employer’s failure to pay for Claimant’s shoulder
7
surgery was not sufficiently significant to warrant more than a 0% penalty. Claimant
appealed to the Board which, on November 20, 2015, affirmed WCJ Rago’s decision.
Claimant appealed to this Court.4
Claimant argues that the Board erred by affirming WCJ Rago’s decision
granting Employer’s 2010 Termination Petition because Employer failed to meet its
burden of proving that Claimant’s medical condition changed since Employer’s 2009
Termination Petition was denied. We disagree.
Section 413(a) of the Act states, in pertinent part:
A [WCJ] designated by the [D]epartment may, at any time,
. . . terminate a [NCP], . . . upon petition filed by either
party with the [D]epartment, upon proof that the disability[5]
of an injured employe has . . . temporarily or finally ceased .
. . . Such . . . termination shall be made as of the date upon
which it is shown that the disability of the injured employe
has . . . temporarily or finally ceased . . . .
77 P.S. § 772. “To succeed in a termination petition, an employer bears the burden
of proving by substantial evidence that a claimant’s disability ceased, or any
remaining conditions are unrelated to the work injury.” Westmoreland Cnty. v.
Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008)
(emphasis added). The burden is substantial since disability is presumed to
continue unless and until proved otherwise. Giant Eagle, Inc. v. Workmen’s
Comp. Appeal Bd. (Chambers), 635 A.2d 1123 (Pa. Cmwlth. 1993).
In a case where the claimant complains of continued pain,
this burden is met when an employer’s medical expert
unequivocally testifies that it is his opinion, within a
4
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
5
“Under [the Act], the term ‘disability’ is synonymous with loss of earning power.”
Donahay v. Workers’ Comp. Appeal Bd. (Skills of Cent. Pa. Inc.), 109 A.3d 787, 792 (Pa. Cmwlth.
2015).
8
reasonable degree of medical certainty, that the claimant is
fully recovered, can return to work without restrictions and
that there are no objective medical findings which either
substantiate the claims of pain or connect them to the
work injury. If the WCJ credits this testimony, the
termination of benefits is proper.
Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa.
1997) (footnote omitted; emphasis added); see also, Elberson v. Workers’ Comp.
Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007).
Moreover, our Supreme Court has held:
In order to terminate benefits on the theory that a claimant’s
disability has reduced or ceased due to an improvement of
physical ability, it is first necessary that the employer’s
petition be based upon medical proof of a change in the
claimant’s physical condition. Only then can the [WCJ]
determine whether the change in physical condition has
effectuated a change in the claimant’s disability, i.e., the
loss of his earning power. Further, by natural extension it is
necessary that, where there have been prior petitions to .
. . terminate benefits, the employer must demonstrate a
change in physical condition since the last disability
determination.
Lewis v. Workers’ Comp. Appeal Bd. (Giles & Ransome, Inc.), 919 A.2d 922, 926
(Pa. 2007) (emphasis added). Accordingly, “Employer’s case [must] begin with the
adjudicated facts found by the WCJ in [his/her previous] termination petition
[denial] and work forward in time to show the required change.”6 Folmer v.
6
The Lewis Court explained:
Absent this requirement ‘a disgruntled employer . . . could repeatedly
attack what he considers an erroneous decision of a [WCJ] by filing
petitions based on the same evidence ad infinitum, in the hope that
one referee would finally decide in his favor.’ Dillon [v. Workmen’s
Comp. Appeal Bd.], 640 A.2d [386,] 389 [(Pa. 1994)], [(quoting
Banks v. [Workmen’s Comp. Appeal Bd.], . . . 327 A.2d 404, 406 ([Pa.
Cmwlth.] 1974)[)].
Lewis, 919 A.2d at 926.
9
Workers’ Comp. Appeal Bd. (Swift Transp.), 958 A.2d 1137, 1143-44 (Pa. Cmwlth.
2008) (emphasis added).
“The determination of whether a claimant’s subjective complaints of
pain are accepted is a question of fact for the WCJ.” Udvari, 705 A.2d at 1293.
Moreover, it is well established that “[t]he WCJ is the ultimate factfinder and has
exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Here, in deciding Employer’s 2009 Termination Petition, WCJ Doman
made findings that, in conducting Claimant’s January 7, 2009 IME, Dr. Bennett took
Claimant’s history, reviewed Claimant’s medical, physical therapy, epidural, EMG
and MRI records, and found Claimant’s examination to be within normal limits. C.R.
Ex. C-2, WCJ Doman Dec. at 3-4. WCJ Doman also made findings that Dr. Stempler
had treated Claimant as recently as August 25, 2009 and, based upon the 2009 EMG
and cervical and right shoulder MRIs, opined that Claimant’s continued cervical and
right shoulder pain complaints were the result of Claimant’s work accident. Id. at 5.
Dr. Stempler referred Claimant for pain management and surgical intervention. Id.
According to WCJ Doman’s November 23, 2009 decision, Dr. Bennett
represented that he conducted a January 7, 2009 IME and concluded, based upon his
review of Claimant’s medical records, history and normal physical examination, that
Claimant was fully recovered from his work injury and was capable of returning to
work without restriction. However, Claimant described that, despite ongoing
treatment, he had daily right arm and cervical pain that rendered him unable to lift his
arm above shoulder level, and he experienced headaches that make it impossible for
him to return to his pre-injury job. Further, based upon his examination of Claimant
10
and Claimant’s diagnostic test results, Dr. Stempler confirmed that Claimant had not
recovered from his working injury. WCJ Doman declared that, since Dr. Stempler’s
opinions were consistent with Claimant’s credible complaints, and Dr. Bennett
offered no explanation for Claimant’s ongoing complaints, to the extent the doctors
disagreed, Dr. Stempler’s opinion was more credible.
This Court has recognized that the evidence necessary to prove a change
since a prior adjudication “will be different in each case.” Folmer, 958 A.2d at 1144.
“[B]y accepting the employer’s medical evidence of full recovery as credible, a
WCJ could properly make a finding that the employer has met the standard set
forth in Lewis [of] a change in Claimant’s condition.” Delaware Cnty. v. Workers’
Comp. Appeal Bd. (Browne), 964 A.2d 29, 35 (Pa. Cmwlth. 2008) (emphasis added);
see also Johnson v. Workers’ Comp. Appeal Bd. (Bucks Cnty. Intermediate Unit) (Pa.
Cmwlth. No. 1232 C.D. 2010, filed February 26, 2013).7 Moreover, although the
WCJ’s finding cannot be based solely upon evidence that pre-dates the previous
adjudication, id., it may be based upon a review of such evidence plus a post-
adjudication examination. See Adams v. Workers’ Comp. Appeal Bd. (Cmty.
Behaviorial Health) (Pa. Cmwlth. No. 1368 C.D. 2010, filed May 19, 2011);8 see
also Krnaich v. Workers’ Comp. Appeal Bd. (Allegheny Ludlum Corp.) (Pa. Cmwlth.
No. 215 C.D. 2014, filed September 3, 2014);9 Johnson. Finally, “it is not necessary
[for the employer] to demonstrate that a claimant’s diagnoses have changed since the
last proceeding, but only that his symptoms have improved to the point where he
is capable of gainful employment.” Simmons v. Workers’ Comp. Appeal Bd.
7
We acknowledge that this Court’s unreported memorandum opinions may be cited “for
[their] persuasive value, but not as a binding precedent.” Section 414 of the Commonwealth
Court’s Internal Operating Procedures. 69 Pa. Code § 69.414. In light of the dearth of reported
case law on this issue, Johnson is cited herein for its persuasive value.
8
Adams is unreported and, thus, cited herein for its persuasive value.
9
Krnaich is unreported and, thus, cited herein for its persuasive value.
11
(Powertrack Int’l), 96 A.3d 1143, 1149 (Pa. Cmwlth. 2014) (emphasis added). This
Court has declared that a change sufficient to satisfy the Lewis requirement exists if
there is a lack of objective findings to substantiate a claimant’s continuing
complaints. See Adams; see also Krnaich.
Here, WCJ Rago made the following findings on remand:
1. The Findings of Fact set forth . . . in the December 13,
2011 Decision of this [WCJ] are incorporated herein by
reference as though fully set forth at length.
2. This [WCJ] finds that [] Employer has proven a
change in [] Claimant’s condition since the adjudication
of the [2009 Termination Petition] before WCJ []
Doman. In coming to this conclusion, this [WCJ] has
considered the following:
a) The incredible testimony given by [] Claimant
concerning his activities in relation to his
complaint[]s of shoulder pain. This [WCJ] notes []
Claimant traveled to Los Angeles along with
obtaining multiple tattoos, including one on his right
injured arm.
b) The lack of any active medical treatment since
December of 2009.
c) At the time of [] Employer’s medical expert, Dr.
Bennett[’s] examination on May 4, 2010, []
Claimant had seen Dr. [Cohen], had undergone an
EMG and had additional MRI studies done of the
cervical spine as well as the right shoulder.
WCJ Remand Dec. at 3 (emphasis added); R.R. at 30a. Accordingly, in crediting Dr.
Bennett’s testimony relative to Claimant’s symptoms and treatments since 2009,
WCJ Rago concluded that Employer met its burden of proving a change in
Claimant’s physical condition since WCJ Doman’s November 23, 2009 decision.
12
Neither the Board nor the Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771
A.2d 1246 (Pa. 2001). This Court has stated:
‘[I]t is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the
critical inquiry is whether there is evidence to support the
findings actually made.’ [Minicozzi v. Workers’ Comp.
Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29
(Pa. Cmwlth. 2005)] (quoting [Del. Cnty.] v. Workers’
Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa.
Cmwlth. 2002)). We review the entire record to determine
if it contains evidence a reasonable mind might find
sufficient to support the WCJ’s findings. If the record
contains such evidence, the findings must be upheld even
though the record contains conflicting evidence.
Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa.
Cmwlth. 2007) (citation omitted).
‘In performing a substantial evidence analysis, this court
must view the evidence in a light most favorable to the
party who prevailed before the factfinder.’ [Waldameer
Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819
A.2d 164, 168 (Pa. Cmwlth. 2003)]. ‘Moreover, we are to
draw all reasonable inferences which are deducible from the
evidence in support of the factfinder’s decision in favor of
that prevailing party.’ Id.
3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007).
Based upon its review of the record evidence and with WCJ Rago’s role
as factfinder in mind, the Board held:
After a careful review of the record, we determine no error.
[Employer] had the burden of establishing a change in
Claimant’s condition since the date of the last IME. Lewis.
To meet its burden, [Employer] presented deposition
testimony from Dr. Bennett, who examined Claimant for a
second time on May 4, 2010. Dr. Bennett also reviewed
13
additional medical records and reports from 2009. Dr.
Bennett opined based on his examination and review of
medical records, that Claimant was fully recovered from all
aspects of his work injury. The WCJ accepted the
testimony of Dr. Bennett as credible. She also rejected
the testimony of Claimant as not credible with respect to
his ongoing complaints. She noted that Claimant had
travelled to Los Angeles and gotten multiple tattoos,
including one on his injured arm. She noted as well that
Claimant had not actively treated for his work injury
since 2009. The WCJ found, based on these factors and
the testimony of Dr. Bennett, that [Employer] had
established a change in Claimant’s condition since the
date of the last IME. . . . The WCJ did not err in finding
that [Employer] met its burden, based on the testimony of
Claimant and Dr. Bennett. Because [Employer] met its
burden of proof, the WCJ did not err in granting the [2010]
Termination Petition.
Board Dec. at 6-7 (emphasis added); R.R. at 39a-40a.
Certainly, the “doctor’s [credited] diagnosis and opinion of work ability .
. . supported by other evidence of record, namely Claimant’s activities and the WCJ’s
personal observation of Claimant . . . which suggested that Claimant’s subjective
complaints were either not accurate, not as severe as described or had improved since
the last proceeding[,]” are sufficient to establish a change in Claimant’s condition
such that the Lewis requirement is met. Simmons, 96 A.3d at 1149. The fact that Dr.
Bennett rendered the same opinion after Claimant’s May 2010 IME as he did
following Claimant’s January 2009 IME does not invalidate the latter opinion,
particularly when the WCJ’s finding was based upon Dr. Bennett’s credited medical
opinion and Claimant’s testimony of his activities since the 2009 Termination
Petition was denied. Because there was substantial evidence to support the WCJ’s
conclusion that Employer proved there was a change in Claimant’s physical condition
since WCJ Doman’s November 23, 2009 decision, the Board properly affirmed the
WCJ’s decision.
14
Claimant also argues that the Board erred by affirming the WCJ’s
decision granting Claimant’s Penalty Petition, but with a 0% penalty. We disagree.
We acknowledge that Section 435(d)(i) of the Act10 authorizes WCJs to assess
penalties against employers for violations of the Act. Moreover, “a claimant who
files a penalty petition bears the burden of proving a violation of the Act occurred. If
the claimant meets his or her initial burden of proving a violation, the burden then
shifts to the employer to prove it did not violate the Act.” Gumm v. Workers’ Comp.
Appeal Bd. (Steel), 942 A.2d 222, 232 (Pa. Cmwlth. 2008) (citation omitted).
Finally, “[t]he assessment of penalties, and the amount of penalties imposed are
matters within the WCJ’s discretion.” Id. (emphasis added). Thus, “absent an
abuse of discretion by the WCJ . . . [a penalty award] will not be overturned on
appeal.” Indiana Floral Co. v. Workers’ Comp. Appeal Bd. (Brown), 793 A.2d 984,
991 n.18 (Pa. Cmwlth. 2002). Here, a violation was found, but no penalty assessed.
See Dep’t of Labor & Indus. v. Workmen’s Comp. Appeal Bd., 410 A.2d 1325 (Pa.
Cmwlth. 1980).
After remand, WCJ Rago made the following relevant finding:
3. This [WCJ] finds that while [] Employer per se violated
the terms and provisions of the [Act] for failing to pay for
medical treatment, this [WCJ] does not believe that the
violation is significant enough to warrant a penalty. In
coming to this conclusion, this [WCJ] has considered the
incredible testimony of [] Claimant concerning his pain
levels and his activities, traveling specifically to Los
Angeles and obtaining a tattoo on the right arm. The
tattooed arm is the same on which surgery would have been
performed; the same body part where [] Claimant was
experiencing excruciating pain and had not receiv[ed] any
active medical treatment since December of 2009.
WCJ Remand Dec. at 3; R.R. at 30a.
10
Added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 991(d)(i).
15
Upon review, the Board concluded:
On remand, the WCJ explained that she did not believe that
[Employer’s] violation of the Act was significant enough to
warrant the imposition of a penalty. In reaching this
determination, the WCJ noted that she did not accept as
credible Claimant’s complaints of pain, noting again that he
travelled to Los Angeles and that he got a tattoo on his
injured arm, the same arm on which the surgery would have
been performed and the same body part which Claimant
alleged was causing him to experience excruciating pain,
when he was no longer receiving any active medical
treatment. The WCJ has discretion over the amount of
penalties to be awarded. Here, the WCJ adequately
explained, on remand, why she chose not to award
penalties. We cannot say, upon review of this explanation,
that the WCJ abused her discretion by declining to award
penalties in this case.
Board Op. at 8; R.R. at 41a. Finding no error in the Board’s conclusion, we hold that
the Board did not err by affirming the WCJ’s decision to assess 0% penalties against
Employer.
Based upon the foregoing, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
Judge Cosgrove did not participate in the decision in this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Baumann, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Kellogg Company), : No. 2603 C.D. 2015
Respondent :
ORDER
AND NOW, this 23rd day of September, 2016, the Workers’
Compensation Appeal Board’s November 20, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6670
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAHEEM BRYANT-ROYAL,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:12-cr-00040-ELH-1; 1:16-cv-02891-ELH)
Submitted: December 27, 2019 Decided: February 20, 2020
Before KING and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
C. Justin Brown, BROWN LAW, Baltimore, Maryland, for Appellant. Robert K. Hur,
United States Attorney, Jason D. Medinger, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daheem Bryant-Royal appeals the district court’s order denying relief on his 28
U.S.C. § 2255 (2012) motion. We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district court. United States v. Bryant-
Royal, Nos. 1:12-cr-00040-ELH-1; 1:16-cv-02891-ELH (D. Md. May 1, 2019). We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
2
|
406 So.2d 1100 (1981)
THE FLORIDA BAR, Complainant,
v.
Peter M. LOPEZ, Respondent.
No. 57904.
Supreme Court of Florida.
November 25, 1981.
Rehearing Denied February 15, 1982.
*1101 John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, and Paul A. Gross, Branch Staff Counsel, and Wallace N. Maer and Scott K. Tozian, Bar Counsels, Miami, for complainant.
Elliott Harris of Lopez & Harris, Miami, Everett P. Anderson of Pennington, Wilkinson, Gary & Dunlap, and Richard W. Ervin and Dean Bunch of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for respondent.
PER CURIAM.
This disciplinary proceeding is before the Court on complaint of The Florida Bar, the report of a referee, and respondent's petition for review. We have jurisdiction. Art. V, § 15, Fla. Const.
The Florida Bar filed a complaint alleging that Peter M. Lopez, a member of The Florida Bar, urged two parties he was suing on behalf of his client to change their future testimony in exchange for general releases from prosecution. After a hearing, the appointed referee filed a report containing the following findings of fact:
That on February 6, 1978, following the termination of a deposition taken by Respondent Lopez in his office located at 28 West Flagler Street, Miami, in a case then pending in the United States District Court, Southern District of Florida, styled "Rafael Gonzalez-Perez v. Sun Bank of Miami, et al." Case No. 77-2225, wherein Respondent represented the Plaintiff, Respondent requested the individual defendants, to wit, J. Zambrana, Humberto Martinez-Marquez, and their counsel, Mark Dienstag, Esq. to remain in the room so that Respondent could speak to them.
Messrs. Zambrana, Martinez-Marquez and attorney Dienstag remained along with Respondent and a discussion of the testimony previously given by the witness, Defendant Jose Roses, occurred.
A key issue in the case was whether Plaintiff had given instruction to Defendant Zambrana to deliver a certain $25,000 cashier's check to Defendant Sun Bank or to put the check on an Aerocondor flight to South America for delivery to Plaintiff. If the latter, a better case against Sun Bank would be made. The witness, Roses, however testified that his instructions were to deliver the check to the Bank.
During that discussion, Respondent stated to those present in the room that [meaning the testimony as given by Roses] was "not what I want to hear; that if you say the check was to go to Aerocondor I'll get you off the hook".
The words and statement uttered by the Respondent were susceptible of no other reasonable interpretation than to mean that if defendants Zambrana and Martinez testified that the instructions were for delivery of the check to Aerocondor, that in exchange for such testimony, he, Respondent Lopez as counsel for plaintiff, would drop those defendants from the suit and proceed against the other defendant, Sun Bank of Miami.
Respondent's statements were partially in English and partially in Spanish and the evidence is at variance as to whether the exact words uttered by Respondent were in English or Spanish; however, there is no issue as to the meaning of the words as heard by the three individuals.
*1102 The witnesses, Zambrana, Martinez-Marquez and their attorney, Mark Dienstag, are credible and their testimony is credible and worthy of belief.
The only conclusion that can reasonably be drawn is that Respondent Lopez was soliciting testimony he knew the witnesses did not believe to be true in exchange for a release of the witnesses from the suit.
The referee then made the following recommendations:
I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, The Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
Rule 11.01 of the Integration Rule and Disciplinary Rules 1-102A(3), 1-102A(4), 1-102A(5), 1-102A(6), 7-102A(6) and 7-102A(8) of the Code of Professional Responsibility, in that Respondent was urging parties and/or witnesses to testify under oath to matters which Respondent knew, or should have known, that the said witnesses did not believe and which were false.
I recommend that the Respondent be suspended from the practice of law for a period of three months with automatic reinstatement at the end of the three month period of suspension as provided in Rule 11.10(3).
Mr. Lopez has taken exception with the referee's report contending that he is not guilty of the infractions charged and that the evidence is insufficient to support any finding to the contrary.
A referee's "findings should be upheld unless clearly erroneous or lacking in evidentiary support." The Florida Bar v. McCain, 361 So.2d 700, 706 (Fla. 1978); The Florida Bar v. Wagner, 212 So.2d 770, 772 (Fla. 1968). Here, based on the evidence presented, the referee found that respondent had violated his ethical and professional responsibilities. This conclusion is corroborated by each of the four witnesses' testimony and is reasonable. The evidence presented meets the burden placed on complainant to provide clear and convincing proof of respondent's misconduct. The Florida Bar v. Valantiejus, 355 So.2d 425 (Fla. 1978); The Florida Bar v. Quick, 279 So.2d 4 (Fla. 1973); The Florida Bar v. Schonbrun, 257 So.2d 6 (Fla. 1971); The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). We therefore affirm the referee's finding that respondent violated his attorney's oath, the Integration Rule, and the Code of Professional Responsibility.
We cannot agree, however, with the referee's recommended three-month suspension with automatic reinstatement at the end of that time. Mr. Lopez has committed a serious violation of his responsibilities as a member of the Florida Bar. We feel that a three-month suspension is insufficient to impress on the respondent, the bar, and the public our dissatisfaction with and distress over his conduct. If Mr. Lopez had been convicted in a court of this state of tampering with a witness, he would have been subject to a one-year term of imprisonment.[*] Using the witness-tampering statute as a guideline, we find a one-year suspension appropriate in this case.
Peter M. Lopez is suspended from the practice of law for one year, effective thirty days from the date of the filing of this opinion, and thereafter until he shall show his rehabilitation through complying with rule 11.11 of the Integration Rule and by obtaining a passing score on the ethics portion of the bar examination. Costs in the amount of $949.00 are hereby taxed against respondent.
It is so ordered.
SUNDBERG, C.J., and OVERTON, ALDERMAN and McDONALD, JJ., concur.
ADKINS and BOYD, JJ., dissent.
NOTES
[*] § 918.14(2), Fla. Stat. (1977). Inducement not involving force, deception, threat, or offer of pecuniary benefit is a first-degree misdemeanor.
|
214 P.3d 788 (2009)
HEDDINGS
v.
DOC, MAHONEY.
No. OP 09-0104.
Supreme Court of Montana.
May 5, 2009.
Decision without published opinion. Dismissed as moot.
|
Filed 3/28/19; Certified for Publication 4/4/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Nevada)
----
FRIENDS OF SPRING STREET, C086563
Plaintiff and Appellant, (Super. Ct. No. CU15080911)
v.
NEVADA CITY,
Defendant and Respondent;
MOLLIE POE et al.,
Real Parties in Interest and Respondents.
This attorney fees and costs case follows from our opinion in Friends of Spring
Street v. Nevada City (Mar. 10, 2017, C081195) [nonpub. opn.] (Friends I). An
association (plaintiff Friends of Spring Street) filed a petition for writ of mandate and
complaint for declaratory and injunctive relief in superior court, challenging a
determination by defendant Nevada City (the City) that real parties in interest Mollie Poe
and Declan Hickey (collectively Real Parties) had the right to resume operation of a bed
1
and breakfast facility in a residential district of the City despite the fact that, years earlier,
voters had passed an initiative measure repealing the provisions in the City’s municipal
code allowing such facilities. Plaintiff also challenged a 2015 City ordinance relating to
the discontinuance of nonconforming uses subject to conditional use permits. The trial
court upheld the City’s ruling with respect to the bed and breakfast and upheld the 2015
ordinance. (Friends I.) Plaintiff appealed.
In Friends I, “we conclude[d] that while the trial court did not err in upholding the
2015 ordinance, the court did err in upholding the [C]ity’s ruling with respect to the bed
and breakfast.” (Friends I, supra, C081195.) On remand, the trial court vacated its prior
decision on the bed and breakfast issue and entered judgment in favor of plaintiff on that
issue with respect to its petition for writ of mandate. The trial court further directed the
City to file a return to the writ, indicating it had set aside its challenged decision. The
City complied.
Plaintiff moved for costs under Code of Civil Procedure1 section 1032 and
attorney fees under section 1021.5; the City and Real Parties opposed. The trial court
granted the City’s and Real Parties’ motions to strike plaintiff’s memorandum of costs
and denied plaintiff’s motion for attorney fees. Plaintiff appeals.
We reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In 1984, the City passed an initiative by a vote of 726 to 356 to “permit[] the
establishment of Bed and Breakfast Guest Facilities within residential and commercial
zones in the City under reasonable conditions.” (Friends I, supra, C081195.) The City
thereafter adopted a new zoning ordinance (codified as Nevada City Mun. Code,
§ 17.04.010 et seq.) implementing the initiative, including provisions regarding
1 Undesignated section references are to the Code of Civil Procedure unless
otherwise specified.
2
conditional use permits2 and discontinuances of nonconforming uses. (Friends I, supra,
C081195.) The zoning ordinance contained a provision that “ ‘[i]f a non-conforming use
is discontinued for a period of one (1) year, then all rights regarding the non-conforming
use shall be terminated and the existing zoning district regulations shall apply to any
further use of the property.’ ” (Ibid.)
“In 1991, Juneus and Jan Kendall obtained a conditional use permit to operate a
bed and breakfast at 534 Spring Street (referred to as Kendall House), which is in a
[single family residential] zone.” (Friends I, supra, C081195.)
In 1994, the City passed an initiative known as Measure G by a vote of 684 to 642.
(Friends I, supra, C081195.) “The question posed by Measure G was this: ‘[S]hall
Section 17.72.070 of the Nevada City Municipal Code which currently allows Bed &
Breakfast guest facilities in residential and non-commercial zones be repealed and the
Nevada City General Plan amended accordingly such that Policy No. 6 under the heading
of ‘Public Service/Fiscal’ be deleted along with any other references in the General Plan
authorizing the establishment of Bed & Breakfast guest facilities?’ ” (Ibid.)
The Kendalls continued to operate Kendall House as a bed and breakfast until
2002, “although they continued to renew and pay for a business license for the property”
thereafter. (Friends I, supra, C081195.) The Kendalls sold the property in 2004, and the
buyers (who used the property as a residence while paying for and maintaining the
business license) later sold the property to Real Parties in 2013. (Ibid.)
In 2014, Real Parties sought to recommence the conditional use permit to operate
the Kendall House as a bed and breakfast. (Friends I, supra, C081195.) The City’s
planning commission staff “framed the issue as whether, following the passage of
2 A conditional use permit authorizes a land use that, under a zoning ordinance, is
allowed only when certain conditions are met. (Neighbors in Support of Appropriate
Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1005-1006.)
3
Measure G in 1994, there had been a voluntary abandonment of the nonconforming use
of the property as a bed and breakfast such that the right to use the property for that
purpose was terminated.” (Ibid.) The planning commission received at least seven
letters regarding Real Parties’ application prior to the hearing and, at the hearing, at least
14 people spoke on the issue. The planning commission denied the request because
“ ‘the grandfathered rights to operate a [bed and breakfast] there as a legal
nonconforming use ha[d] been terminated by discontinuance of the [bed and breakfast]
use with intent to abandon that use.” Real Parties appealed the decision to the city
council.
“In their appeal, [Real Parties] did not challenge the planning commission’s
finding that the right to operate a bed and breakfast on the property as a nonconforming
use had been lost by discontinuance accompanied by an intent to abandon that use.
Instead, they argued for the first time that operation of a bed and breakfast at Kendall
House was never a nonconforming use because section 17.24.040 of the municipal code,
through its reference to section 17.20.040 of the code, still provided that a bed and
breakfast inn was a permitted conditional use in the [single family residential] zone.
Thus, they contended the conditional use permit issued for Kendall House in 1991 was
‘existing and fully valid’ because the business license fee had been paid ever since.”
(Friends I, supra, C081195.)
The city council received at least nine letters regarding Real Parties’ appeal prior
to the hearing and, at the hearing, at least 14 people spoke on the issue. The city council
granted Real Parties’ appeal and vacated the planning commission’s decision. In its
resolution, the city council explained “the subject matter is of importance to the public
interest in the effective enforcement of city zoning laws” and found “[t]he preponderance
of the weight of the evidence considered by the Council is that Measure G was intended
by the voters to limit new bed and breakfast inns in the [single family residential] zone.
Measure G did not address the manner of continuation or termination of existing bed and
4
breakfast inns.” (Friends I, supra, C081195.) The city council also concluded Real
Parties were entitled to rely on the municipal code sections that existed when they
submitted their application because the code sections “could not ‘by implication be
voided or avoided.’ ” (Ibid.)
“In January 2015, plaintiff commenced the present action by filing a petition for
writ of mandate and complaint for declaratory and injunctive relief in the superior court,
seeking to require the [C]ity to set aside its decision granting [Real Parties’] appeal of the
planning commission’s decision.” (Friends I, supra, C081195.) In that regard, plaintiff
brought four causes of action: (1) “Violation of Citizen Initiative, Measure G: Code Civ.
Proc. § 1094.5”; (2) “Conflict of Interest: Government Code § 91003”; (3) “Failure to
Implement Measure G: Code Civ. Proc. § 1085”; and (4) “Declaratory Relief: Code Civ.
Proc. § 1060.”
Plaintiff alleged: “Measure G was passed by local citizens based on concerns that
bed and breakfast facility operations -- a commercial use under the code -- are
incompatible with residential uses, with the potential to adversely affect the integrity of
local residential neighborhoods in the City, as has occurred in other jurisdictions such as
Napa or Mendocino Counties. Measure G did not abolish pre-existing [bed and
breakfasts] in residential areas, but did render such uses non-conforming. Such non-
conforming uses may be abandoned due to continued non-use.”
Plaintiff sought orders “directing the City to set aside its decision and to proceed
in accordance with applicable law” and compelling the City “to implement Measure G by
revising its General Plan and updating its zoning code in accordance with the intent of the
voters,” and a declaration “that the City’s final resolution determining that Measure G did
not affect the zoning conformity of pre-existing [bed and breakfasts] is contrary to law.”
Finally, plaintiff “s[ought] injunctive relief for the Court to set aside the City’s action in
granting Real Part[ie]s’ appeal due to the conflict of interest established in the
proceedings below by one of the City Council members, Evan Phelps, based on the
5
council member’s financial interest in bed and breakfast operations located in the City
that are affected by the City Council’s action.”3
“A week [after plaintiff filed this action], the city council adopted an urgency
ordinance that, among other things, amended [a section] of the municipal code with
relation to the discontinuance of bed and breakfast guest facilities. Soon thereafter,
plaintiff filed an amended petition and complaint in the superior court, adding a challenge
to the urgency ordinance.” (Friends I, supra, C081195.)
“In February 2015, the city council adopted a resolution affirming that the urgency
ordinance was exempt from review under the California Environmental Quality Act
(CEQA). Then, in March 2015, the city council adopted a nonurgency ordinance that
superseded the urgency ordinance from January.” (Friends I, supra, C081195.) “As
relevant [to this action], the nonurgency ordinance amended section 17.76.040 of the
municipal code to provide as follows:
“ ‘(a) If a nonconforming use is discontinued for a period of one year, then all
rights regarding the nonconforming use shall be terminated and the existing zoning
district regulations shall apply to any further use of the property.
“ ‘(b) Any determination of discontinuance of a use allowed by a conditional use
permit, pursuant to (a) above, shall proceed in accordance with section 17.88.020(F) of
this Code, and shall include a review of all relevant evidence.’
“Subdivision (F) of section 17.88.020 of the city’s municipal code provides as
follows:
“ ‘In any case where the conditions of a conditional use permit have not been or
are not being complied with, the commission shall give the permittee notice of intention
3 Plaintiff’s claim for injunctive relief related only to the alleged conflict of interest
and was not an issue in the appeal. Accordingly, we did not address that aspect of
plaintiff’s suit further. (Friends I, supra, C081195.)
6
to revoke such permit at least ten (10) days prior to a commission hearing thereon. After
the conclusion of the hearing, the commission may revoke such a permit.’ ” (Friends I,
supra, C081195.)
“In April 2015, plaintiff filed a second amended petition and complaint in the
superior court, adding a challenge to the nonurgency ordinance in place of the previous
challenge to the urgency ordinance. Plaintiff alleged that the amendment to
section 17.76.040 ‘require[s] the City to utilize the permit revocation criteria of Code
Section 17.88.020(F) before it may determine that a non-conforming use has been
discontinued. This amendment violates state law, which requires that zoning be uniform
and not permit uses that are not listed in the zoning code, except in situations where a
variance has been issued. . . . The amendment also improperly confers vested rights on
landowners possessing [conditional use permits] for uses that no longer comply with
applicable zoning, thereby elevating the rights of these non-conforming uses to the status
of permitted uses under the Code.’ Plaintiff also alleged that the city violated CEQA by
approving the nonurgency ordinance without any environmental review.” (Friends I,
supra, C081195.)
“Regarding [Real Parties’] appeal [to the city council], the [trial] court concluded
‘[t]he City Council was correct in its legal analysis. The old [bed and breakfast] was
never a legal non-conforming use and . . . it was still subject to its Conditional Use
Permit.’ Regarding the nonurgency ordinance, the court concluded that the . . .
municipal code did not require the city to use the permit revocation criteria . . . in
determining whether the right to continue a nonconforming use has been lost by
discontinuance.” (Friends I, supra, C081195.) “Based on these conclusions, the court
denied plaintiff’s writ petition and granted plaintiff’s request for declaratory relief,
declaring that ‘the vested rights of . . . landowners [with conditional use permits] require
a permit revocation process before such use may be extinguished.’ ” (Ibid.)
7
On appeal, “we conclude[d] that while the trial court did not err in upholding the
2015 ordinance, the court did err in upholding the [C]ity’s ruling with respect to the bed
and breakfast.” (Friends I, supra, C081195.) With respect to the bed and breakfast, the
pertinent question was whether, “following the passage of Measure G, the operation of a
bed and breakfast on the Kendall House property remained a conforming use, such that
[Real Parties] were entitled to resume that use of the property as a matter of right, without
regard to the rules governing nonconforming uses.” (Ibid.) We explained “the intent of
Measure G was to prohibit the establishment of new bed and breakfasts in residential
zones and to turn existing bed and breakfasts in those zones into nonconforming uses.”
(Ibid.) Accordingly, we “conclude[d] that Measure G impliedly repealed subdivision (F)
of section 17.24.040 and that bed and breakfasts existing at the passage of the measure
became nonconforming uses.” (Ibid.)
We upheld the 2015 nonurgency ordinance based on the “construction advanced
by the [C]ity” that “subdivision (B) of section 17.76.040 requires only that the
procedural requirements of subdivision (F) of section 17.88.020 -- that is, at least 10
days’ notice prior to a hearing on the matter -- be applied to a determination of whether a
nonconforming use has been terminated by discontinuance and does not require that the
substantive criteria in the latter provision -- that is, a determination that the conditions of
the conditional use permit have not been or are not being complied with -- be applied to a
determination of termination by discontinuance.” (Friends I, supra, C081195.) We also
disposed of plaintiff’s CEQA argument on the same grounds because plaintiff failed to
“explain how making a determination of discontinuance subject to a hearing with prior
notice could possibly have an impact on the environment.” (Friends I, supra, C081195.)
We, accordingly, reversed the judgment with respect to plaintiff’s petition for writ
of mandate but affirmed with respect to its complaint for declaratory and injunctive relief.
On remand, we directed the trial court to vacate its order denying plaintiff’s petition for
writ of mandate and to enter a new and different order granting plaintiff’s petition to the
8
extent plaintiff sought a writ of mandate ordering the City to set aside its decision
granting Real Parties’ appeal of the planning commission’s decision. (Friends I, supra,
C081195.) We ordered each party to bear its own costs on appeal. (Ibid.)
On remand, the trial court vacated its prior decision denying the petition for writ
of mandate and entered judgment granting the petition. The judgment states: “Following
the passage of Measure G, the operation of a bed and breakfast on the Kendall House
property became a nonconforming use, such that [Real Parties] were not entitled to
resume that use of the property as a matter of right, without regard to the rules governing
nonconforming uses. P[laintiff’s] request for declaratory relief is adjudicated as follows:
The right of a nonconforming [bed and breakfast] landowner to operate in accordance
with a conditional use permit can only be extinguished based on a finding of
discontinuance under N[evada ]C[ity] Code § 17.76.040 in accordance with the
procedural requirements of N[evada ]C[ity] Code § 17.88.020F that the City hold a
hearing and provide required notice at least 10 days prior to the hearing. [¶] P[laintiff’s]
request for injunctive relief is denied.”
The trial court directed the City to “[s]et aside [its] October 22, 2014 decision
granting [Real Parties’] appeal of the City’s Planning Commission’s denial of Real
Parties’ application to resume a Bed and Breakfast operation at [the Kendall House] in
Nevada City” and to file a written return demonstrating compliance with the writ. The
City filed a return to the writ, showing its compliance with the amended peremptory writ
of mandate by the adoption of Resolution No. 2018-08, in which the City resolved to set
aside its decision granting Real Parties’ appeal.
Plaintiff filed a memorandum of costs, requesting $435 in filing and motion fees,
$200 in service of process fees, and $3,200 for preparing the administrative record.
Plaintiff also filed a separate motion for attorney fees under section 1021.5. The fees
motion was supported by the declaration of Stevee Duber, a member of plaintiff
association, which included as an exhibit “excerpts from the record documenting the
9
broad-based citizen opposition to the City’s refusal to acknowledge and enforce the
voters’ intent to adopt Measure G.” The City and Real Parties filed motions to strike
plaintiff’s memorandum of costs and oppositions to plaintiff’s motion for attorney fees.
Judge Thomas Anderson granted the motion to strike plaintiff’s memorandum of
costs, stating: “Here, the court finds that there is no prevailing party. Petitioner did not
achieve any practical result that justifies a determination that it was the prevailing party
entitled to costs. Petitioner only obtained relief from the Court on one of its five causes
of action. The trial court and the Court of Appeal denied any relief at all on the other
four causes of action. Similar to the Court of Appeal’s decision not to award costs to
Petitioner on appeal, this Court determines that Petitioner is not the prevailing party
entitled to costs.”
Judge pro tem Angela Bradrick denied the attorney fees motion, stating: “Here,
the Court finds that Petitioner was not successful in enforcing an important public right
that resulted in a substantial benefit to the public or a large class of persons. Petitioner
did obtain a successful interpretation and enforcement of Measure G. But, this result
does not constitute a significant benefit, whether pecuniary or non-pecuniary, having
been conferred on the general public or a large class of persons. [T]he mere vindication
of a statutory violation is not sufficient to be considered a substantial benefit by itself.”
Plaintiff appeals both the attorney fees and costs orders.
DISCUSSION
I
Plaintiff Is Entitled To Its Costs
“In contrast to the American rule that parties to a lawsuit ordinarily pay their own
attorney fees, litigation costs have been traditionally awarded to the prevailing party.
‘Costs are allowances which are authorized to reimburse the successful party to an action
or proceeding and are in the nature of incidental damages to indemnify a party against the
expense of successfully asserting his rights.’ [Citations.] ‘ “The theory upon which
10
[costs] are allowed to a plaintiff is that the default of the defendant made it necessary to
sue him; and to a defendant, that the plaintiff sued him without cause. Thus the party to
blame pays costs to the party without fault.” ’ ” (DeSaulles v. Community Hospital of
Monterey Peninsula (2016) 62 Cal.4th 1140, 1147.)
Section 1032, subdivision (b) provides that, “[e]xcept as otherwise expressly
provided by statute, a prevailing party is entitled as a matter of right to recover costs in
any action or proceeding.” A “prevailing party” is defined to include “the party with a
net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant
where neither plaintiff nor defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. If any party recovers
other than monetary relief and in situations other than as specified, the ‘prevailing party’
shall be as determined by the court, and under those circumstances, the court, in its
discretion, may allow costs or not . . . .” (§ 1032, subd. (a)(4).)
This case falls within the “in situations other than as specified” prong of section
1032, subdivision (a)(4). This prong of the statute “ ‘calls for the trial court to exercise
its discretion both in determining the prevailing party and in allowing, denying, or
apportioning costs. It operates as an express statutory exception to the general rule that a
prevailing party is entitled to costs as a matter of right.’ ” (Charton v. Harkey (2016) 247
Cal.App.4th 730, 738.)
In these situations, “the trial court in its discretion determines the prevailing party,
comparing the relief sought with that obtained, along with the parties’ litigation
objectives as disclosed by their pleadings, briefs, and other such sources.” (On-Line
Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1087.) Thus, the trial court
determines whether the party succeeded at a practical level by realizing its litigation
objectives (Wohlgemuth v. Caterpillar, Inc. (2012) 207 Cal.App.4th 1252, 1264) and the
action yielded the primary relief sought in the case (City of Santa Maria v. Adam (2016)
248 Cal.App.4th 504, 516).
11
Real Parties argue plaintiff waived any right to costs under section 1032 because
plaintiff failed to obtain a court order deeming it a prevailing party before filing its
memorandum of costs (relying on a statement in Rutter Group’s Civil Trials and
Evidence Guide) and, “since it waited until the fifteenth day after entry of judgment, any
application to the court [for an order deeming it a prevailing party] after that date would
have been untimely.” Real Parties cite no rule, statute, or case authority for the
proposition advanced, and we are aware of none. Even assuming there was a procedural
deficiency, however, the trial court appropriately exercised its discretion in reaching the
merits regarding plaintiff’s prevailing party status in response to its filing of a
memorandum of costs, and there was no prejudice to Real Parties in doing so. (See Bahl
v. Bank of America (2001) 89 Cal.App.4th 389, 398 [the guiding principle is to reach the
merits despite procedural deficiencies when possible].)
The trial court found plaintiff was not the prevailing party because plaintiff did not
achieve a “practical result,” it only obtained relief on one of its five causes of action, and
we ordered the parties to bear their own costs on appeal in Friends I. The trial court’s
reasoning does not provide legal support for the decision. Plaintiff’s “failure to succeed
on all but one of several ‘shotgun’ causes of action has been held insufficient to deny a
party fees and costs.” (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1155-1156.)
Further, the trial court’s no “practical result” finding is not supported by the record.
Plaintiff’s litigation resulted in a court order requiring the City to set aside its decision
granting Real Parties’ appeal of the planning commission’s decision, leaving the planning
commission’s denial of Real Parties’ request to recommence the bed and breakfast
operations intact. This was success at a practical level because plaintiff realized its
primary litigation objective (Wohlgemuth v. Caterpillar, Inc., supra, 207 Cal.App.4th at
p. 1264), as shown in the “pleadings, briefs, and other such sources” (On-Line Power,
Inc. v. Mazur, supra, 149 Cal.App.4th at p. 1087).
12
When plaintiff filed its action, it asserted four causes of action, each focused on
reversing the City’s decision and interpretation regarding the application of Measure G,
and ensuring appropriate implementation of the measure. Its subsequent amendments to
the complaint merely added related challenges to the ordinances adopted by the City after
plaintiff filed suit -- the amendments did not change the primary relief sought in the case.
Because the action yielded the primary relief sought, plaintiff was the prevailing party
under section 1032. (City of Santa Maria v. Adam, supra, 248 Cal.App.4th at p. 516
[“Therefore, the ‘situations other than as specified’ language of Code of Civil Procedure
section 1032, subdivision (a)(4) applies and ‘[a] plaintiff will be considered a prevailing
party when the lawsuit yields the primary relief sought in the case’ ”].)
The City argues plaintiff did not achieve the practical result sought because the
result of the action -- setting aside the city council’s decision -- “does not automatically
result in the [Real Parties] being prohibited from reoperating their [bed and breakfast] as
[plaintiff] assumes in [its] argument.”4 The City believes our Friends I opinion “merely
decided the jurisdictional issue by deciding that the City did have jurisdiction to decide
whether the ability to reopen the [bed and breakfast] in [plaintiff’s] neighborhood had
been lost through discontinuance of a nonconforming use,” was not a “decision on the
merits as sought by [plaintiff],” “le[ft] the substantive question unresolved,” and “left the
opposing sides in continuing disagreement on whether there is any right to reopen the
[bed and breakfast] use [at the subject property].” Thus, according to the City, plaintiff
4 The City provides no basis for this statement. As plaintiff appropriately notes,
section 17.88.050, subdivisions A.2. and B., of the City’s municipal code provides a
planning commission decision may be appealed to the city council in writing within 15
days of the decision. Real Parties filed an appeal, but did not challenge the planning
commission’s determination that the “legal nonconforming use ha[d] been terminated by
discontinuance of the [bed and breakfast] use with intent to abandon that use.” (Friends
I, supra, C081195.) We are aware of no provision in the City’s municipal code allowing
Real Parties a second bite of the apple.
13
“did not get the actual practical result [it] was after;” that is, to stop the Real Parties from
operating a bed and breakfast at the Kendall house. The City is mistaken.
We will not restate our opinion in Friends I here (which the City would do well to
review in detail), but note we did not merely decide a “jurisdictional issue”; we made a
substantive determination on the merits regarding the meaning and application of
Measure G that is binding on the City with respect to Real Parties’ appeal of the planning
commission’s decision. The practical effect of our Friends I decision, the trial court’s
revised judgment in response, and the City’s resolution vacating its prior reversal of the
planning commission’s decision is that the planning commission’s denial of Real Parties’
application to recommence bed and breakfast operations at the Kendall house remains
intact. Thus, as we explained, plaintiff achieved the practical result sought in its action.
Whether the dispute between plaintiff and Real Parties relating to the Kendall house is
final is of no matter. (See La Mirada Avenue Neighborhood Assn. of Hollywood v. City
of Los Angeles (2018) 22 Cal.App.5th 1149, 1159-1160 (La Mirada) [a determination
that a party was successful in its action “does not require a showing that the successful
party put the entire dispute to rest for once and all”]; see also Center for Biological
Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 895 [legal
determinations are made “in the context of the outcome of the current litigation, and not
[based] on speculative future events”].)
The City further posits it is “not necessarily” bound by our Friends I decision; we
disagree. The well-established legal principles of law of the case, res judicata, and issue
preclusion render the Friends I decision binding on the City in this action. As plaintiff
notes, the fact that the opinion was unpublished does not change the application of these
legal doctrines. (Cal. Rules of Court, rule 8.1115(b)(1); Department of Industrial
Relations v. Seaboard Surety Co. (1996) 50 Cal.App.4th 1501, 1512, fn. 8.) We need not
address whether Friends I is binding on the City in future cases because the issue is not
before us.
14
The trial court also stated that its decision was “similar” to the earlier
determination of this court that each side should bear its own costs. Our determination
that the parties were to bear their own costs on appeal under California Rules of Court
rule 8.278(a)(5) was not a prevailing party determination and cannot meaningfully
support the trial court’s conclusion.
We remand the matter to the trial court to determine the amount of costs to be
awarded to plaintiff, if any, in accordance with section 1032 and the applicable legal
principles. (See Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 985-987, overruled on
other grounds in Goodman v. Lozano (2010) 47 Cal.4th 1327, 1330.)
II
Plaintiff Was Successful On An Issue Of Public Interest
That Resulted In A Substantial Benefit To City Residents
“As a general rule, parties in litigation pay their own attorney’s fees. [Citation.]
Section 1021.5 is an exception to that rule. [Citation.] Derived from the judicially
crafted ‘private attorney general doctrine’ [citation], section 1021.5 is aimed at
encouraging litigants to pursue meritorious public interest litigation vindicating important
rights and benefitting a broad swath of citizens, and it achieves this aim by compensating
successful litigants with an award of attorney’s fees [citations].” (La Mirada, supra, 22
Cal.App.5th at pp. 1155-1156.) The intent of section 1021.5 fees is not “to punish those
who violate the law but rather to ensure that those who have acted to protect public
interest will not be forced to shoulder the cost of litigation.” (San Bernardino Valley
Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 756.)
Section 1021.5 authorizes an award of fees to a “successful party” in “any action
which has resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on
the general public or a large class of persons, (b) the necessity and financial burden of
private enforcement, or of enforcement by one public entity against another public entity,
15
are such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.” When the statutory criteria have been met,
fees must be awarded “unless special circumstances render such an award unjust.”
(Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 391.)
Whether plaintiff established its eligibility for fees under section 1021.5 implicates
“a mixed standard of review: To the extent we construe and define the statutory
requirements for an award of attorney’s fees, our review is de novo; to the extent we
assess whether those requirements were properly applied, our review is for an abuse of
discretion.” (La Mirada, supra, 22 Cal.App.5th at p. 1156.) “The pertinent question is
whether the grounds given by the court for its denial of an award are consistent with the
substantive law of section 1021.5 and, if so, whether their application to the facts of th[e]
case is within the range of discretion conferred upon the trial courts under section 1021.5,
read in light of the purposes and policy of the statute.” (City of Sacramento v. Drew
(1989) 207 Cal.App.3d 1287, 1298.)
Here, the trial court found plaintiff was not entitled to attorney fees under
section 1021.5 because the action did not result in the enforcement of an important right
affecting the public interest and did not confer a significant benefit on the general public.
As we explain, the trial court abused its discretion in finding these elements lacking, and
we reverse the trial court’s finding in that regard. The trial court did not, however,
consider the last pertinent factor in the section 1021.5 analysis5 -- whether the necessity
and financial burden of private enforcement make an award appropriate. We therefore
remand the matter to the trial court to consider the issue in the first instance.
5 The last factor under section 1021.5 -- that attorney fees “should not in the interest
of justice be paid out of the recovery, if any” -- is inapplicable here because there was no
monetary recovery.
16
The “successful party” under section 1021.5 is “the party to litigation that achieves
its objectives.” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 571; Maria P.
v. Riles (1987) 43 Cal.3d 1281, 1292 [a plaintiff is successful if it succeeds on any
significant issue and achieves some benefit sought]; RiverWatch v. County of San Diego
Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 782-783 [party need not
succeed on all of its claims].) For the same reasons expressed ante, plaintiff was the
“successful party” for purposes of section 1021.5 in this action.6
Next, “[t]he trial court in its discretion ‘must [first] realistically assess the
litigation and determine, from a practical perspective, whether or not the action served to
vindicate an important right [and public interest] so as to justify an attorney fee award’
under section 1021.5.” (Maria P. v. Riles, supra, 43 Cal.3d at p. 1291.) Second, it must
assess whether a successful party’s action confers a “significant benefit” on the general
public or a large class of persons. (Woodland Hills Residents Assn., Inc. v. City Council
(1979) 23 Cal.3d 917, 939-940.) “A benefit need not be monetary to be significant.
[Citation.] Where, as here, the nonpecuniary benefit to the public is the proper
enforcement of the law, the successful party must show that the law being enforced
furthers a significant policy . . . because ‘the Legislature did not intend to authorize an
award of attorney fees in every case involving a statutory violation[.]’ In such instances,
the significant benefit and important right requirements of section 1021.5 to some extent
dovetail.” (La Mirada, supra, 22 Cal.App.5th at p. 1158.)
La Mirada is instructive -- a case cited by plaintiff and not addressed by the City
and Real Parties. In La Mirada, the plaintiffs sought a writ to vacate and set aside the
6 Real Parties argue plaintiff is not entitled to its attorney fees because it is not
entitled to costs, and attorney fees “are a subspecies of costs made recoverable by
statute.” Because we determined plaintiff is the prevailing party under section 1032 for
purposes of costs, we need not address this contention.
17
decision by the city council of the City of Los Angeles granting Target Corporation eight
variances from a specific area zoning plan for a proposed project. (La Mirada, supra, 22
Cal.App.5th at pp. 1153-1154.) The plaintiffs “did so as a way to vindicate their ‘interest
in ensuring that the City’s decisions are in conformity with the requirements of the
[municipal code].’ ” (Id. at p. 1157.) The plaintiffs achieved this objective when the trial
court invalidated six of the eight variances for noncompliance with the municipal code.
(Ibid.)
As the La Mirada court observed, “ ‘[z]oning laws concern “a vital public
interest” ’ ” and “[o]ur Supreme Court has consistently recognized the importance of
‘preserv[ing] the integrity of’ a ‘locality’s governing general plan’ for zoning [citation],
including through judicial oversight that ‘prevent[s] unjustified variance awards’ that
threaten to ‘subver[t] . . . the critical reciprocity upon which zoning regulation rests.’ ”
(La Mirada, supra, 22 Cal.App.5th at p. 1159.) The appellate court upheld the trial
court’s finding that the benefit from that action -- “requiring the City to adhere to the
municipal code’s ‘legal requirements’ for granting variances from the [specific area
zoning plan]” -- “further[ed] a significant public policy.” (Id. at pp. 1158-1159.)
The same analysis and rationale as in La Mirada applies here where plaintiff’s
action preserved the integrity of the zoning regulation imposed by Measure G. The
public interest in this case is even greater, however, than the public interest in
maintaining “ ‘the critical reciprocity upon which zoning regulation rests’ ” (La Mirada,
supra, 22 Cal.App.5th at p. 1159) because the zoning regulation created by Measure G
arose from the voters’ exercise of their initiative rights, and Measure G can only be
modified by another vote of the City’s residents. (See Elec. Code, § 9217 [“If a majority
of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become
a valid and binding ordinance of the city. . . . No ordinance [so adopted] shall be
repealed or amended except by a vote of the people, unless provision is otherwise made
in the original ordinance”].) The important public right vindicated was the voters’ right
18
to require the City’s presently elected officials to comply with the intent of and zoning
proscriptions resulting from Measure G, passed by the City’s residents through initiative
in 1994. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582,
591 [it is “ ‘the duty of the courts to jealously guard th[e] [initiative and referendum]
right of the people’ ” because it is “ ‘one of the most precious rights of our democratic
process’ ”].)
While the City argues that “[o]btaining an interpretation of an initiative is not
automatically deemed enforcement of an important public right” and is not “per se ‘an
important public benefit,’ ” the City does not appear to argue that the interpretation at
issue in this case does not implicate an important public interest. To do so would directly
contravene its own statement in the resolution granting Real Parties’ appeal that “the
subject matter [of the appeal] is of importance to the public interest in the effective
enforcement of city zoning laws.” Moreover, the public participation and interest on this
issue cannot be questioned.7
Plaintiff’s success in requiring the City to abide by the intent and requirements of
Measure G resulted in a substantial benefit to the City’s residents. (La Mirada, supra, 22
Cal.App.5th at p. 1159 [“vindication of this significant policy benefits not only the
persons living near the Project and the persons living within the geographical boundaries
of the [specific area zoning plan] . . . but also all residents of the City [by holding] the
City Council’s zoning decisions to the letter and spirit of the municipal code”]; cf.
7 In 1984, 1,082 residents voted on the initiative to “permit[] the establishment of
Bed and Breakfast Guest Facilities within residential and commercial zones in the City
under reasonable conditions.” (Friends I, supra, C081195.) In 1994, 1,326 residents
voted on the Measure G initiative, and the initiative passed by a margin of 42 votes,
indicating the initiative was contentious. (Ibid.) The planning commission received at
least seven letters regarding Real Parties’ application prior to the hearing and, at the
hearing, at least 14 people spoke on the issue. The city council similarly received at least
nine letters and heard testimony from at least 14 people on appeal.
19
Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335
[no significant benefit when action resulted in correction of a “ ‘minute blemish’ that
could be repaired” in environmental impact report and the correction “was not likely to
change the project”]; Karuk Tribe of Northern California v. California Regional Water
Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 336 [no
significant benefit when action resulted in remand for reasons articulated by the appellate
court but not by the successful party].)
The City argues no substantial benefit should be found because plaintiff had a
personal economic interest and subjective motivation in bringing the action. This
argument is unavailing; plaintiff’s personal economic interest and subjective motivation
is irrelevant to the “significant benefit” inquiry. (City of Maywood v. Los Angeles
Unified School Dist. (2012) 208 Cal.App.4th 362, 429, fn. 32 [“[U]nder the plain
language of the statute, the claimant need only show that it conferred a significant benefit
on the public. The claimant’s subjective motivations in pursuing the litigation are simply
not relevant to that inquiry”].)
The City’s reliance on our opinion in Lafferty is also misplaced because that case
is factually distinguishable. (Lafferty v. Wells Fargo Bank, N.A. (2018) 25
Cal.A0pp0.5th 398, 421-422 [we upheld the trial court’s denial of attorney fees to the
plaintiffs because “[the defendant] did not itself engage in any behavior contrary to the
public interest,” “the [plaintiffs] failed to secure a significant benefit for the public
[because] our holding was foreshadowed by this court’s prior decision in Music
Acceptance Corp. [v. Lofing (1995)] 32 Cal.App.4th 610,” and “the [plaintiffs] achieved
no success in [its prior appeal] in which we rejected all six of their contentions in an
unpublished decision” and had only “partial success in one of their prior appeals”].)
For the reasons stated, we conclude the trial court abused its discretion in finding
plaintiff “was not successful in enforcing an important public right that resulted in a
substantial benefit to the public or a large class of persons.”
20
DISPOSITION
The trial court’s orders on the City’s and Real Parties’ motions to strike plaintiff’s
memorandum of costs and plaintiff’s motion for attorney fees are reversed. On remand,
the trial court shall: (1) determine the amount of costs to be awarded to plaintiff, if any,
in accordance with section 1032 and the applicable legal principles; and (2) determine
whether the necessity and financial burden of private enforcement renders an attorney fee
award appropriate and, if so, the amount to be awarded. Plaintiff shall recover its costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
/s/
Robie, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Renner, J.
21
Filed 4/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Nevada)
----
FRIENDS OF SPRING STREET, C086563
Plaintiff and Appellant, (Super. Ct. No. CU15080911)
v. ORDER CERTIFYING
OPINION FOR
NEVADA CITY, PUBLICATION
Defendant and Respondent;
MOLLIE POE et al.,
Real Parties in Interest and Respondents.
THE COURT:
The opinion of this court filed March 28, 2019, was not certified for publication in
the Official Reports. For good cause it now appears the opinion should be published in
its entirety in the Official Reports and it is so ordered.
BY THE COURT:
/s/
Hull, Acting P. J.
/s/
Robie, J.
/s/
Renner, J.
1
EDITORIALS
APPEAL from a judgment of the Superior Court of Nevada County, Thomas M.
Anderson, Judge and Angelia L. Bradrick, Temporary Judge. (Pursuant to Cal. Const.,
art. VI, § 21.) Reversed.
Michael W. Graf, for Plaintiff and Appellant.
P. Scott Browne, for Defendant and Respondent.
Haley & Bilheimer and Allan S. Haley for Real Parties in Interest and
Respondents.
2
|
586 F.2d 838
McColloughv.Stacy
No. 78-8086
United States Court of Appeals, Fourth Circuit
10/27/78
1
E.D.Va.
DISMISSED
|
Filed 8/11/14
IN THE SUPREME COURT OF CALIFORNIA
JEWERELENE STEEN, )
)
Petitioner, )
) S174773
v. )
) Los Angeles County
APPELLATE DIVISION, SUPERIOR ) Super. Ct. No. 6200307
COURT OF LOS ANGELES COUNTY, )
) App. Div. No. BR046020
Respondent; )
) Ct. App. 1/2
THE PEOPLE, )
)
Real Party in Interest. )
____________________________________)
In this case we consider the validity of a misdemeanor complaint issued by a
superior court clerk under the authority of Penal Code section 959.1, subdivision
(c) (hereafter section 959.1(c)). The statute provides that “[a] magistrate or court
is authorized to receive and file an accusatory pleading in electronic form if,”
among other things, “[t]he accusatory pleading is issued in the name of, and
transmitted by, a public prosecutor or law enforcement agency . . . , or by a clerk
of the court with respect to complaints issued for the offenses of failure to appear,
pay a fine, or comply with an order of the court.” (§ 959.1(c) & (c)(1), italics
added.) Petitioner, who pled no contest to the misdemeanor of willfully violating
her written promise to appear (Veh. Code, § 40508, subd. (a)), charged in a
complaint electronically generated by a court clerk, now challenges the ensuing
conviction. Invoking the California Constitution’s separation of powers (Cal.
Const., art. III, § 3) and due process (id., art. I, §§ 7, subd. (a), 15) clauses,
petitioner contends the complaint was void because it was not issued by an
executive branch officer with prosecutorial authority. Based on that premise,
petitioner further contends the complaint did not timely commence a prosecution
for purposes of the statute of limitations. (Pen. Code, § 802, subd. (a).)
We conclude petitioner is not entitled to relief. A legislative enactment that
permitted a judicial branch employee to commence criminal prosecutions without
the prosecutor’s approval would present a serious constitutional question by
impairing a core function of the executive branch — the discretionary power to
initiate criminal prosecutions. (See People v. Birks (1998) 19 Cal.4th 108, 134.)
But section 959.1(c) does not expressly or by necessary implication permit the
clerk to commence prosecutions without the prosecutor’s approval, and we must
construe the statute in a manner that avoids doubts as to its constitutional validity.
(People v. Leiva (2013) 56 Cal.4th 498, 506–507; Young v. Haines (1986) 41
Cal.3d 883, 898.) Furthermore, the prosecutor may validate a complaint filed by
someone else by approving, authorizing or concurring in it. (People v. Municipal
Court (1972) 27 Cal.App.3d 193, 206 (Pellegrino).) Here, the relevant
prosecutorial agency has, through an established practice, implicitly approved in
advance the clerk’s routine issuance of complaints for the offense of failure to
appear, including the complaint against petitioner. Accordingly, the complaint
was valid and the prosecution timely commenced. We therefore deny the petition
for writ of mandate.
I. BACKGROUND
On June 8, 2002, a police officer cited petitioner Jewerelene Steen for three
infractions of the Vehicle Code: driving a vehicle with an expired registration
(Veh. Code, § 4000, subd. (a)(1)), driving without a license (id., § 12500,
2
subd. (a)), and failing to provide evidence of financial responsibility (id., § 16028,
subd. (a)). Petitioner signed a written promise to appear in court on or before July
23, 2002, to answer for those infractions (see id., § 40500) and was thereupon
released. When petitioner failed to appear, the clerk of the court for the Los
Angeles County Superior Court, on August 13, 2002, electronically generated and
filed against her a complaint for the misdemeanor of willfully violating her
promise to appear. (Id., § 40508, subd. (a).) The complaint was one of thousands
created by the clerk on a weekly basis by means of a computer program that
matches citation data from county traffic record information systems with data
about delinquencies entered by the court’s deputy clerks.
About five years later, on July 27, 2007, petitioner appeared with counsel
before a court commissioner. Respondent informs us that the vast majority of
offenses charged under section 959.1(c) are, with the defendants’ consent, treated
as infractions and punished with fines. (See Pen. Code, § 17, subd. (d)(2).)
Instead of consenting to such a disposition, petitioner demurred to the complaint.
(Pen. Code, § 1004, subds. 1, 5.) The court lacked jurisdiction, she argued,
because the clerk has no authority to commence a criminal prosecution and
because section 959.1(c), if read to confer such authority, unconstitutionally
impairs the separation of powers and due process. The People, represented by a
deputy of the Los Angeles City Attorney’s Office, criminal division, offered a
constitutional defense of the statute. Asked by the court whether the People
approved and concurred in the complaint against petitioner, the deputy responded
that the People’s “actions . . . demonstrate[] that we approve and concur of this
complaint as well as all the other complaints that are filed in all the other cases in
this courthouse. We know the practice exists where a complaint is generated via a
notice to appear” and “[w]e have not asked the Court and/or its clerk to stop.” In
rebuttal, petitioner argued that the People had needed to concur in the complaint
3
against her at the time it was filed and that it was “too late for the City Attorney to
concur” five years later at the hearing.
Rejecting petitioner’s arguments, the court overruled the demurrer, accepted
her plea of no contest, found her guilty of violating Vehicle Code section 40508,
subdivision (a), denied probation, and sentenced her to 50 days in county jail with
six days of credit. The appellate division affirmed petitioner’s conviction, and the
Court of Appeal denied her petition to transfer. Having no right to petition for
review from the order denying transfer (Cal. Rules of Court, rule 8.500(a)(1)),
petitioner invoked our original jurisdiction by filing the instant petition for writ of
mandate to compel the appellate division to vacate the conviction. We took
jurisdiction by issuing orders to show cause directing real party in interest the
People, and also respondent appellate division,1 to show cause before this court
why the relief petitioner seeks should not be granted.
II. DISCUSSION
Petitioner, as noted, challenges her conviction as impairing the separation of
powers (Cal. Const., art. III, § 3), denying her due process (id., art. I, §§ 7, subd.
(a), 15) and violating the statute of limitations (Pen. Code, § 802, subd. (a)). We
1 Courts have no beneficial interest in the outcome of the cases they decide
and are not entitled to litigate the correctness of their rulings in a reviewing court.
(See Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 1129;
Matter of De Lucca (1905) 146 Cal. 110, 113.) We have, however, occasionally
permitted the respondent courts in writ proceedings to address the legality of their
challenged procedures. (E.g., People v. Superior Court (Lavi) (1993) 4 Cal.4th
1164, 1170 [considering whether respondent court’s master calendar department
operated as such for purposes of Code Civ. Proc., § 170.6]; Hernandez v.
Municipal Court (1989) 49 Cal.3d 713, 715–716 [considering whether respondent
court’s practice of transferring criminal cases among branch courthouses was
consistent with the vicinage requirement of the 6th Amend. of the U.S. Const.].)
4
address petitioner’s separation of powers argument first, as our analysis of it
informs the remainder of our analysis.
A. Separation of Powers.
Petitioner contends section 959.1(c) impairs the separation of powers by
permitting the clerk, a judicial branch employee, to issue misdemeanor
complaints. Reasoning that California law entrusts the initiation of criminal
proceedings exclusively to executive branch officers with prosecutorial authority,
petitioner argues that section 959.1(c) is unconstitutional to the extent it provides
otherwise and that the clerk’s complaint is accordingly void. We conclude the
statute, properly and narrowly construed, does not permit the clerk to initiate
criminal proceedings without the prosecutor’s approval and is thus constitutional,
and that the complaint against petitioner is therefore valid.
Penal Code section 959.1 was enacted in 1988 to permit prosecutors and law
enforcement agencies to commence criminal prosecutions by filing electronic
pleadings. (Stats. 1988, ch. 516, § 1, p. 1945.) The language that engendered the
present dispute by assigning a role to the clerk was added to the statute in 1990 by
Assembly Bill No. 3168 (1989–1990 Reg. Sess.). (See Stats. 1990, ch. 289, § 1,
p. 1561 [enacting Assem. Bill No. 3168].) Presently, the statute provides that “a
criminal prosecution may be commenced by filing an accusatory pleading in
electronic form with the magistrate or in a court having authority to receive it”
(§ 959.1, subd. (a)) and sets out conditions a court must satisfy in order to accept
electronic pleadings. Section 959.1(c), with the 1990 amendment set out here in
italics, provides that “[a] magistrate or court is authorized to receive and file an
accusatory pleading in electronic form if all of the following conditions are met:
[¶] (1) The accusatory pleading is issued in the name of, and transmitted by, a
public prosecutor or law enforcement agency . . . , or by a clerk of the court with
5
respect to complaints issued for the offenses of failure to appear, pay a fine, or
comply with an order of the court.” (Italics added.)
In describing the role the clerk is to play with respect to accusatory
pleadings, the language added to section 959.1(c) in 1990 is somewhat ambiguous.
Considering that language in context and in light of the legislative history, it
appears the Legislature intended to permit superior court clerks to generate,
electronically and automatically, accusatory pleadings charging certain offenses
that arise out of court proceedings and are thus necessarily based on facts that lie
uniquely within the clerk’s knowledge.
Solely as a matter of form, and putting other considerations aside for the
moment, the 1990 language might conceivably be read to permit the accusatory
pleadings designated in section 959.1(c) to be “issued . . . by a clerk,” to be
“issued in the name of . . . a clerk,” to be “transmitted . . . by a clerk” (ibid.), or to
permit all three readings. Closer analysis, however, leaves only one reasonable
interpretation: Clerks may “issue[]” — that is, generate electronically — the
specified complaints. We may reasonably assume the Legislature did not intend
for complaints to issue “in the name of” the clerk because it has repeatedly
declared that “[a] criminal action is prosecuted in the name of the people of the
State of California, as a party” (Pen. Code, § 684; see Gov. Code, § 100,
subd. (b)),2 and nothing in the history of Assembly Bill No. 3168 suggests the
Legislature intended to modify that rule by permitting prosecutions to be brought
in the name of a judicial branch employee with no statutory power to represent the
People in criminal prosecutions. (Cf. Gov. Code, § 26500 [the public prosecutor
2 “The style of all process shall be ‘The People of the State of California,’
and all prosecutions shall be conducted in their name and by their authority.”
(Gov. Code, § 100, subd. (b).)
6
“shall attend the courts, and within his or her discretion shall initiate and conduct
on behalf of the people all prosecutions for public offenses”].) Alternatively, to
read section 959.1(c) as providing that the clerk may only “transmit[]” pleadings
to the court — namely to himself or herself — for filing has no apparent practical
significance. If one rejects those two implausible readings, one is necessarily left
with the conclusion that the bill must have been intended to permit the clerk to
“issue[],” that is to generate, the specified complaints.
This conclusion is consistent with the statute’s legislative history. Originally
proposed by the Association of Municipal Court Clerks of California and
unanimously adopted by both houses of the Legislature, Assembly Bill No. 3168
was presented as a measure to “increase court efficiency by streamlining the filing
of pleadings by court clerks” through taking advantage of “automated systems that
eliminate the need for hard paper.” (Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 3168 (1989–1990 Reg. Sess.) Apr. 17, 1990, p. 1.) Legislative
committee reports explained that “[e]xisting law permits accusatory pleadings to
be filed electronically by prosecutors and law enforcement agencies. . . . [¶] . . .
[¶] This bill would allow court clerks to file electronically complaints issued for
the offenses of failure to appear, failure to pay a fine, or failure to comply with an
order of the court.” (Sen. Rules Com., Analysis of Assem. Bill No. 3168 (1989–
1990 Reg. Sess.) June 21, 1990, p. 1; see Sen. Com. on Judiciary, Off. of Sen.
Floor Analyses, Analysis of Assem. Bill No. 3168 (1989–1990 Reg. Sess.) June
19, 1990, pp. 1–2 [same].) The reports’ imprecise use of the word “file” does not
obscure the Legislature’s understanding that the bill would allow clerks to perform
a function previously performed only by executive branch officers: the generation
of electronic pleadings. There was no need in 1990 to amend section 959.1(c) to
permit clerks to “file” electronic pleadings, as the Legislature had already granted
that permission in 1988. (See former § 959.1(c), as enacted by Stats. 1988,
7
ch. 516, § 1, p. 1945 [“A magistrate or court is authorized to receive and file an
accusatory pleading in electronic form”].)
The potential constitutional issue raised by permitting court clerks to
generate accusatory pleadings did not go entirely unnoticed in the Legislature, but
it did go without documented analysis or resolution. While Assembly Bill No.
3168 was under consideration, the Legislative Counsel advised its author that the
bill “might be . . . deemed to be unconstitutional as a violation of the separation of
powers doctrine . . . .” (Legis. Counsel, letter to Assem. Member Robert Frazee
regarding Assem. Bill No. 3168 (1989–1990 Reg. Sess.) Feb. 5, 1990, p. 1.) Five
months later, however, the Legislative Counsel informed the Governor that “the
bill, if chaptered, will be constitutional.” (Legis. Counsel, letter to Gov. George
Deukmejian, July 13, 1990.) In neither letter did the author attempt to analyze the
constitutional issue,3 and the legislative history does not otherwise mention it.
We undertake that analysis now. The separation of powers doctrine owes its
existence in California to article III, section 3 of the state Constitution, which
provides that “[t]he powers of state government are legislative, executive, and
judicial. Persons charged with the exercise of one power may not exercise either
of the others except as permitted by this Constitution.” We have described the
doctrine as limiting the authority of one of the three branches of government to
arrogate to itself the core functions of another branch. Although the doctrine does
not prohibit one branch from taking action that might affect another, the doctrine
3 In his letter to the bill’s sponsor, the Legislative Counsel cited without
comment two judicial opinions noting that the charging of criminal cases lies
within the exclusive control of the executive branch. (Legis. Counsel, letter to
Assem. Member Robert Frazee, supra, p. 1, citing People v. Superior Court
(Greer) (1977) 19 Cal.3d 255, 262, and People v. Superior Court (Felmann)
(1976) 59 Cal.App.3d 270, 275–276.)
8
is violated when the actions of one branch defeat or materially impair the inherent
functions of another. (See In re Prather (2010) 50 Cal.4th 238, 254; Carmel
Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297–
298.)
California law leaves no doubt that the initiation of criminal proceedings is a
core, inherent function of the executive branch. The state Constitution, in an
article defining the powers and responsibilities of the executive branch and its
principal officers, appoints the Attorney General as “the chief law [enforcement]
officer of the State” with “direct supervision over every district attorney . . . .”
(Cal. Const., art. V, § 13; see Gov. Code, § 12550 [“The Attorney General has
direct supervision over the district attorneys” and “may, where he deems it
necessary, take full charge of any investigation or prosecution of violations of law
of which the superior court has jurisdiction”].) “The district attorney,” in turn, “is
the public prosecutor, except as otherwise provided by law,” who “shall attend the
courts, and within his or her discretion shall initiate and conduct on behalf of the
people all prosecutions for public offenses.” (Gov. Code, § 26500.) Moreover,
“all prosecutions shall be conducted in [the] name [of the People of California]
and by their authority” (id., § 100, subd. (b)), in other words by the designated
executive branch officer. These constitutional and statutory provisions have led us
to hold that “[t]he prosecution of criminal offenses on behalf of the People is the
sole responsibility of the public prosecutor,” who “ordinarily has sole discretion to
determine whom to charge, what charges to file and pursue, and what punishment
to seek.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 451; see People v.
Eubanks (1996) 14 Cal.4th 580, 588–589.)
Against that background we turn to the dispositive question: Does section
959.1(c) defeat or materially impair a core, inherent function of the executive
branch by permitting the clerk, a judicial branch employee, to issue complaints for
9
the offenses of failure to appear, pay a fine, or comply with an order of the court?
The question reveals a critical ambiguity in the statute: If the Legislature had
intended to validate criminal complaints issued by the clerk without the approval
of the executive branch prosecutor responsible for initiating criminal prosecutions,
then the statute would be difficult or impossible to reconcile with the separation of
powers. On the other hand, if the Legislature did not intend to validate complaints
issued by the clerk without the prosecutor’s approval, then the statute, as we
explain below, would be constitutional. When an ambiguous statute raises serious
constitutional questions, our task is not to resolve such questions in the abstract
but rather to “ ‘ “endeavor to construe the statute in a manner which avoids any
doubt concerning its validity” ’ ” (People v. Leiva, supra, 56 Cal.4th 498, 506–
507, quoting Young v. Haines, supra, 41 Cal.3d 883, 898), even while, as in every
exercise of statutory interpretation, seeking to effectuate the Legislature’s purpose
consistently with the language it chose.
To construe section 959.1(c) as permitting the clerk to issue valid complaints
only with the prosecutor’s approval serves these interpretative goals. Such a
construction is consistent with the language of the statute, effectuates the
Legislature’s purpose, and avoids doubts concerning the statute’s constitutional
validity. The language of section 959.1(c) does not expressly or by necessary
implication authorize the clerk to initiate criminal prosecutions without the
prosecutor’s approval, and nothing in the legislative history indicates otherwise.
Assembly Bill No. 3168 was presented as a proposal to amend a statute governing
electronic filing; nowhere does the history suggest a proposal to reassign
prosecutorial authority from the executive branch to the judicial — a step that
would likely have provoked significant recorded debate. Moreover, to
acknowledge the prosecutor may withhold approval of complaints under section
959.1(c) need not impair the Legislature’s declared goal of increasing court
10
efficiency, because the Legislature could reasonably have assumed prosecutorial
agencies and superior courts would cooperate in determining how to implement
the statute. A prosecutorial agency might, for example, ask the clerk to issue
complaints in some or all cases subject to section 959.1(c), ask the clerk to stop
issuing complaints altogether, or closely coordinate the process to reflect the
People’s discretionary enforcement priorities. Finally, to recognize that section
959.1(c) does not authorize the clerk to issue complaints without the prosecutor’s
approval obviates the separation of powers problem: By withholding approval, the
prosecutor effectively prevents the clerk from issuing a valid complaint. These
circumstances reveal no material impairment or defeat of executive branch
power.4
Petitioner suggests a separation of powers problem would arise if the clerk
issued a complaint without the prosecutor’s approval and the court thereafter
denied the People’s motion to dismiss. This scenario, petitioner suggests, might
lead to misdemeanor convictions being entered without executive branch
involvement. Because nolle prosequi is abolished in California, the prosecutor
may not unilaterally abandon a prosecution (Pen. Code, § 1386); only the court
may dismiss a criminal charge (id., § 1385, subd. (a); see People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 512). Those rules, however, presuppose a valid
complaint: “[T]he existence of a discretionary power in the district attorney to
control the institution of criminal proceedings is a necessary prerequisite to the
constitutional validity of the requirement that the district attorney seek court
4 We note that after a valid complaint has been filed under section 959.1(c),
the prosecutor remains solely responsible for the conduct of the case (Gov. Code,
§ 26500) and free to exercise postfiling discretion by moving to dismiss or reduce
the charges (Pen. Code, § 1385, subd. (a); cf. id., § 17, subd. (d)(2)).
11
approval for abandoning a prosecution as required by sections 1385 and 1386 of
the Penal Code.” (Pellegrino, supra, 27 Cal.App.3d 193, 204.) Thus, it has been
held, purported criminal complaints filed by private persons are “nullities” as to
which the court “lack[s] discretion and in fact jurisdiction to do anything in the
matter except to dismiss.” (Id. at p. 206.) We see no reason why a different rule
would apply to a complaint filed by the clerk under section 959.1(c) without the
prosecutor’s approval.
B. Due Process.
While the prosecutor’s decision here to approve the clerk’s issuance of
complaints under section 959.1(c) obviates petitioner’s separation of powers
argument, it does not necessarily answer petitioner’s argument under the state
Constitution’s due process clauses (Cal. Const., art. I, §§ 7, subd. (a), 15). Due
process, she contends, requires a case-specific, discretionary charging decision by
the prosecutor at the time the complaint is filed. We conclude the argument lacks
merit in the present context.
Petitioner relies mainly on Pellegrino, supra, 27 Cal.App.3d 193. In that
case two private citizens, Pellegrino and Bishop, filed in the municipal court
documents purporting to be criminal complaints against each other for assaultive
conduct during a July 4th celebration. When the prosecutor refused to concur in
Pellegrino’s complaint, the municipal court entered orders disqualifying the
district attorney and appointing a special prosecutor. The Court of Appeal vacated
those orders and dismissed the complaint. Relying on both the separation of
powers doctrine and the right to due process, the court held that criminal
complaints “must be approved, authorized or concurred in by the district attorney
before they are effective in instituting criminal proceedings against an individual”
(id. at p. 206). This conclusion left Pellegrino’s complaint against Bishop a
12
“nullit[y]” (ibid.) but validated Bishop’s complaint against Pellegrino, in which
the prosecutor had concurred (id. at pp. 202–203). We need not reiterate the
separation of powers principles that support this conclusion.
Concerning due process, the court in Pellegrino, supra, 27 Cal.App.3d 193,
made two observations of relevance here. First, the court noted, “[d]ue process of
law requires that criminal prosecutions be instituted through the regular processes
of law. These regular processes include the requirement that the institution of any
criminal proceeding be authorized and approved by the district attorney.” (Id. at
p. 206.) This observation is self-evidently correct and entirely consistent with
recognizing the validity of complaints approved by the prosecutor and issued by
the clerk in accordance with section 959.1(c).
The Pellegrino court also observed that “the theme which runs throughout
the criminal procedure in this state is that all persons should be protected from
having to defend against frivolous prosecutions and that one major safeguard
against such prosecutions is the function of the district attorney in screening
criminal cases prior to instituting a prosecution.” (Pellegrino, supra, 27
Cal.App.3d at pp. 205–206.) In that statement, the court correctly identified an
important general concern underlying the rules of criminal procedure and
responded appropriately to a lower court’s erroneous refusal to dismiss a
purported complaint the prosecutor had consistently disapproved, filed by a
private party with no constitutional or statutory power to represent the People.
The same statement does not compel the conclusion that the prosecutor is
forbidden to approve the filing of charges in an entire category of relatively minor
offenses, such as the three categories of offenses subject to section 959.1(c). We
have, in fact, held the prosecutor may do so.
In Sundance v. Municipal Court (1986) 42 Cal.3d 1101 (Sundance), the court
addressed a variety of claims arising from the mass issuance in Los Angeles
13
County of citations for public inebriation. Even while granting relief to the
plaintiffs on some theories, the court rejected plaintiffs’ claim that due process
forbade the city attorney to file such charges routinely and “without attempting to
screen out cases that could not be successfully prosecuted.” (Id. at p. 1132.) We
reasoned that, except in cases of selective or vindictive prosecution, “[p]rosecutors
have broad decisionmaking power in charging crimes” and that “ ‘[t]he judiciary
historically has shown an extraordinary deference to the prosecutor’s decision-
making function.’ ” (Sundance, at p. 1132, quoting Gershman, Prosecutorial
Misconduct (1985) ch. 4, pp. 4–3 to 4–6.) This principle sufficiently justified
rejecting the claim, as “[p]laintiffs [had] cite[d] no authority for the proposition
that the prosecutor’s failure to exercise sufficient, or indeed any, discretion in
determining whether to file charges constitutes a denial of due process.”
(Sundance, at p. 1132.)
The best practice under section 959.1(c) might well be for the clerk of the
court to furnish the responsible prosecutorial agency in advance with a list of
complaints proposed to be issued under the statute and for the agency to indicate
its explicit approval or disapproval of each. But we are aware of no authority
barring a prosecutor from approving in advance, even implicitly through an
established practice such as the Los Angeles City Attorney has followed, the
clerk’s routine issuance of complaints in cases subject to section 959.1(c). To
proceed in this way reflects the practical consideration that such offenses —
failures to appear, pay a fine, or comply with an order of the court —arise out of
judicial proceedings and are thus necessarily based on facts uniquely within the
clerk’s knowledge. In any event, the judiciary cannot compel the prosecutor to
review each such offense on an individual basis. The deference the judicial branch
owes to the executive branch’s charging decisions precludes that sort of review,
and due process does not require it. (See Sundance, supra, 42 Cal.3d 1101, 1132.)
14
C. Statute of Limitations.
Finally, petitioner contends her conviction cannot stand because the
prosecution was not commenced within the statute of limitations. A prosecution
for the misdemeanor of which she was convicted (Veh. Code, § 40508, subd. (a)
[willfully violating written promise to appear]) must be “commenced within one
year after commission of the offense” (Pen. Code, § 802, subd. (a)). As relevant
here, the “prosecution for an offense is commenced” (id., § 804) when a
“complaint is filed charging a misdemeanor or infraction” (id., § 804, subd. (b)).
The misdemeanor complaint in this case was filed on August 13, 2002, and
specifically alleged that petitioner had committed the charged offense on July 23,
2002, a date within the statutory limitations period.
Invoking the same arguments discussed and rejected above, petitioner
contends the complaint generated by the clerk under section 959.1(c) was initially
void and thus did not commence a prosecution until the People expressly
concurred in it at the hearing in 2007, nearly five years after the statute of
limitations had expired. Our conclusion that the complaint was valid when issued
compels the rejection of this claim, as well. To rephrase the same conclusion as a
matter of statutory interpretation, a “complaint” issued by the clerk under Penal
Code section 959.1(c) with the prosecutor’s approval is a “complaint” (Pen. Code,
§ 804, subd. (b)) that commences a prosecution for purposes of the statute of
limitations.5
5 Because we hold the complaint timely commenced a prosecution, we need
not address the People’s alternative contentions that defendant waived the statute
of limitations by pleading no contest (see generally People v. Williams (1999) 21
Cal.4th 335, 345) and that a prosecution was timely commenced by the issuance of
an arrest warrant (see Pen. Code, § 804, subd. (d)).
15
III. DISPOSITION
The petition for writ of mandate is denied.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
16
CONCURRING OPINION BY LIU, J.
There is much in today’s opinion I agree with. I agree that Sundance v.
Municipal Court (1986) 42 Cal.3d 1101 forecloses petitioner’s due process claim.
(Maj. opn., ante, at pp. 13–14.) As to petitioner’s separation of powers claim, I
agree that “the initiation of criminal proceedings is a core, inherent function of the
executive branch” (id. at p. 9); that Government Code section 100, subdivision (b)
makes clear that “all prosecutions shall be conducted in [the] name [of the People
of California] and by their authority”; that Penal Code section 684 similarly says
“[a] criminal action is prosecuted in the name of the people of the State of
California, as a party”; and that “the Legislature did not intend for complaints to
issue ‘in the name of’ the clerk” when it enacted Penal Code section 959.1,
subdivision (c). (Maj. opn., ante, at p. 6.)
The problem, however, is that the complaint in this case was issued by a
court clerk, an official with no authority to prosecute a criminal action in the name
of the People of California. Although the signature of the “DECLARANT AND
COMPLAINANT” is hard to make out, the parties agree that the signature belongs
to a court clerk. Nowhere on the complaint does there appear the name of a
prosecuting official. (The complaint is reprinted at the end of this opinion. The
initials “LAPD” appear above a line that says, “LAW ENFORCEMENT
AGENCY FILING COMPLAINT,” but that seems to indicate that the Los
Angeles Police Department issued the underlying traffic citation. The LAPD is
not a prosecutorial entity.)
According to declarations of a senior administrator of the Los Angeles
County Superior Court, the court clerk issues approximately 8,000 similar
complaints for failure to appear every week. These complaints are automatically
generated from data entered by deputy clerks or their staff. The data identify
which cases are delinquent, and every Tuesday night, a computer gathers the data
from the prior week and electronically generates thousands of failure-to-appear
complaints against defendants throughout the county. The complaints are also
automatically transmitted to the Department of Motor Vehicles and to the
Countywide Warrant System, a database of wanted persons in Los Angeles
County. The signature on each complaint is electronically generated, and each
complaint is filed as a misdemeanor. When a defendant comes to court for
arraignment, the charge is typically reduced to an infraction with the prosecutor’s
and defendant’s mutual consent. But if the defendant does not consent, the case
may result in a misdemeanor conviction and jail time, as in this case. Each
complaint exposes the defendant to nearly $400 in fines, fees, and penalties. In
the 2007–2008 fiscal year, revenue from such complaints exceeded $75 million.
It is rare for this court to hear an appeal in a failure-to-appear case. But, as
the numbers suggest, this is one of the most common ways that ordinary citizens
come into contact with the criminal justice system. The official process that leads
to a misdemeanor complaint is, as far as I can tell, entirely automated after a
deputy clerk enters data noting a person’s failure to appear for a traffic citation.
At no point does a prosecuting official engage in any review, exercise any
discretion, or otherwise have any role. I do not see how this practice can be
squared with the principle of separation of powers.
2
Although separation of powers doctrine under the California Constitution is
not identical to its federal counterpart (see Marine Forests Society v. California
Coastal Com. (2005) 36 Cal.4th 1, 28–31), the principle throughout American
history has reflected the concern that “[t]he accumulation of all powers,
legislative, executive, and judiciary, in the same hands, . . . may justly be
pronounced the very definition of tyranny.” (Madison, The Federalist No. 47 (J.
Cooke ed. 1961) p. 324; see Parker v. Riley (1941) 18 Cal.2d 83, 89.) This does
“not mean that these departments ought to have no partial agency in, or no
controul over, the acts of each other.” (Madison, at p. 325; see Carmel Valley
Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297–298.) But
it does mean that the core functions of each branch may not be allocated to or
usurped by another branch. Thus, for example, “[t]he magistrate in whom the
whole executive power resides cannot of himself . . . administer justice in person,
though he has the appointment of those who do administer it. The judges can
exercise no executive prerogative, though they are shoots from the executive stock
. . . .” (Madison, at p. 326, italics added.)
Separation of powers protects liberty not only by creating checks and
balances, but also by maintaining clear lines of political accountability. “The
diffusion of power carries with it a diffusion of accountability.” (Free Enterprise
Fund v. Public Company Accounting Oversight Bd. (2010) 561 U.S. 477, __ [130
S.Ct. 3138, 3155].) When a governmental arrangement blurs the lines of
accountability by unduly diminishing the executive’s oversight, it “subverts the
[executive’s] ability to ensure that the laws are faithfully executed—as well as the
public’s ability to pass judgment on his efforts.” (Ibid.)
This concern is not merely theoretical in the context here. Imagine how
things would look if the Los Angeles City Attorney or his designate had to sign his
name as the “DECLARANT AND COMPLAINANT” on each of the 8,000
3
failure-to-appear complaints issued to Los Angeles County residents each week.
That’s over 400,000 complaints each year. Given the mass processing of these
complaints, it is all but certain that some fraction of the charges will be found
erroneous or will otherwise result in dismissal, but not until each defendant has
been put to significant hassle or expense. Wouldn’t the prospect of disgruntled
citizens on such a scale induce a degree of discretion or oversight before an
electorally accountable official is willing to affix his name to a complaint? And
even if not, shouldn’t each complaint — as with any other criminal complaint —
be issued in a form that entitles the citizenry to judge whether their elected law
enforcement officials are setting priorities and allocating resources in an optimal
way?
Today’s opinion says this problem of accountability is cured by the fact that
a deputy city attorney told the superior court in this case that “we approve and
concur of this complaint as well as all the other complaints that are filed in all the
other cases in this courthouse. We know the practice exists where a complaint is
generated via a notice to appear in which a person cited in the notice to appear has
failed appear. We have not asked the Court and/or its clerk to stop.” (See maj.
opn., ante, at p. 3.) Even if I were to agree that a court clerk may sign a complaint
as the declarant and complainant so long as the prosecutor approves (id. at p. 10), I
do not believe an unsworn, post hoc statement made in the course of litigation
suffices to confer such approval. As every elected official knows, there is often a
difference in perception if not reality between deciding to undertake a course of
action oneself and simply going along with or not stopping a course of action
decided by others. This case might be different if the City Attorney had earlier
adopted a policy statement that established or expressly approved the current
practice. But no such statement appears here.
4
Although efficiency and good government are laudable objectives, they
must be pursued in conformity with our constitutional structure. That structure
requires accountability in all governmental functions, including the prosecutorial
function (see Morrison v. Olson (1988) 487 U.S. 654, 697 (dis. opn. of Scalia, J.)),
so that the citizenry may hold public officials to answer for error, abuse, or
misguided priorities. Whether or not it is realistic to expect the City Attorney to
review and approve each of the 400,000 failure-to-appear complaints issued every
year in Los Angeles County, his decision to charge each defendant with a
misdemeanor in the name of the People must be transparent and open to public
judgment, not obscured by the signature of a court clerk.
This conclusion does not require invalidating the thousands of judgments
under the current scheme that are not yet final today. In virtually all of those
cases, even if the participation of a public prosecutor does not cure the separation
of powers violation, we may readily conclude that the defendants likely suffered
no prejudice. (See Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 372
[nonretroactive application of a judicial decision may be justified by
“ ‘[c]onsiderations of fairness and public policy,’ ” including “ ‘retroactivity’s
effect on the administration of justice’ ”].) But lack of prejudice to individual
defendants does not justify use of the present scheme going forward. If the City
Attorney wants to continue automatically generating these complaints, the
separation of powers problem is easily remedied. And if the remedy were to cause
the City Attorney to hesitate, that would tend to confirm the present need for better
alignment between prosecutorial action and accountability.
5
For the reasons above, I concur only in today’s judgment.
LIU, J.
I CONCUR: SIGGINS, J.*
* Associate Justice of the Court of Appeal, First Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Steen v. Appellate Division
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S174773
Date Filed: August 11, 2014
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Patti Jo McKay
__________________________________________________________________________________
Counsel:
Michael P. Judge and Ronald L. Brown, Public Defenders, Ilya Alekseyeff and John Hamilton Scott,
Deputy Public Defenders, for Petitioner.
Frederick R: Bennett; Reed Smith, Paul D. Fogel and Dennis Peter Maio for Respondent.
Carmen A. Trutanich, City Attorney, Debbie Lew, Assistant City Attorney, Eric Shannon and Katharine H.
Mackenzie, Deputy City Attorneys, for Real Party in Interest.
Steve Cooley, District Attorney (Los Angeles), Irene T. Wakabayashi, Head Deputy District Attorney, and
Phyllis C. Asayama , Deputy District Attorney, for District Attorney of Los Angeles County as Amicus
Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
John Hamilton Scott
Deputy Public Defender
320 West Temple Street, Room 590
Los Angeles, CA 90012
(213) 974-3002
Paul D. Fogel
Reed Smith
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
(415) 543-8700
Katharine H. Mackenzie
Deputy City Attorney
500 City Hall East
200 N. Main Street
Los Angeles, CA 90012
(213) 473-6900
2
|
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARIE DUBREUS,
Appellant,
v.
PRIMERICA LIFE INSURANCE CO.,
Appellee.
No. 4D17-715
[April 19, 2018]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Janet C. Croom, Judge; L.T. Case No. 2013CA002688.
Nichole J. Segal and Andrew A. Harris of Burlington & Rockenbach,
P.A., West Pallm Beach, and Mark A. Greenberg of Mark A. Greenberg,
P.A., West Palm Beach, for appellant.
Amy S. Rubin and Megan A. McNamara of Fox Rothschild LLP, West
Palm Beach, for appellee.
PER CURIAM.
Affirmed.
LEVINE, CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
|
645 F.2d 74
Sudrev.Graubart
80-1174
UNITED STATES COURT OF APPEALS Seventh Circuit
12/15/80
1
N.D.Ill.
AFFIRMED AS MODIFIED
|
925 So.2d 646 (2006)
Gay PARKER
v.
Stephanie ROBINSON, Colony Insurance Company, The Department of Public Safety and The Government Employees Insurance Company.
No. 2005-CA-0160.
Court of Appeal of Louisiana, Fourth Circuit.
February 22, 2006.
As Amended on Grant of Rehearing March 30, 2006.
*647 Darleen M. Jacobs, Al Ambrose Sarrat, Jacobs & Sarrat, New Orleans, LA, for Plaintiff/Appellant, Gay Parker.
Amos H. Davis and H. Alston Johnson III, Phelps Dunbar LLP, Baton Rouge, LA, for Colony Insurance Company and Mid-City Automotive Repairs LLC.
Trina T. Wilson, Masterson & Arostegui, New Orleans, LA, for Government Employees Insurance Company.
*648 (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
LEON A. CANNIZZARO, JR., Judge.
This case involves an appeal of an award of damages in connection with an automobile accident. The trial court jury awarded special damages[1] to the plaintiff, Gay Parker, but did not award general damages.[2] Ms. Parker is appealing the trial court's judgment insofar as it failed to award general damages.
FACTS AND PROCEDURAL HISTORY
Ms. Parker was stopped in her car at a red light at the intersection of Napoleon Avenue and Clara Street in New Orleans when a car driven by Stephanie Robinson hit Ms. Parker's car from the rear. Ms. Parker did not report any injuries at the time of the accident and did not seek medical treatment even though the accident occurred on a street next to a hospital. The rear bumper of her car incurred minor damage, but, according to Ms. Robinson's testimony, the vehicle she was driving did not incur any visible damage.
The police officer who investigated the accident wrote on the accident report that Ms. Robinson was traveling at a speed of 35 miles per hour, which was the speed limit in the area. In her videotaped deposition, however, Ms. Robinson testified that her cell phone rang while she was stopped behind Ms. Parker's car. Ms. Robinson took her foot off of the brake momentarily when she reached for her cell phone to answer it. At that moment the car she was driving rolled forward and hit Ms. Parker's car, but Ms. Robinson stated that she did not have her foot on the gas pedal when the car rolled into Ms. Parker's vehicle. Ms. Robinson testified that she was traveling at a rate of one or two miles an hour at the time of impact. Ms. Robinson was issued a citation for traffic law violations.
The day after the accident Ms. Parker's shoulder, back, and neck were stiff and aching, and her hands and wrists felt numb. Ms. Parker testified that prior to the accident, she had not experienced pain and numbness in her hands and wrists.
Three days after the accident Ms. Parker saw her family physician in connection with pain, tingling, and numbness in her hands, a "pulling" sensation in her arms, swelling of her legs, pain in her back, and a burning sensation in her shoulders. When her symptoms persisted for almost a month, Ms. Parker consulted Wilmot Ploger, M.D., an orthopedic surgeon. Dr. Ploger ordered x-rays, and he prescribed medication and physical therapy for Ms. Parker. He also had Ms. Parker obtain an MRI[3] of her back and neck and an *649 EMG[4] of her arms and hands. Ms. Parker was diagnosed by Dr. Ploger with carpal tunnel syndrome, a disorder that causes numbness in the hand and pain in the wrist due to compression of a nerve that runs down the arm to the fingers. Dr. Ploger confirmed the diagnosis with an EMG. In Ms. Parker's case both of her hands and wrists were affected by carpal tunnel syndrome. Dr. Ploger also determined that the neck and back pain that Ms. Parker suffered after the accident with Ms. Robinson was probably the result of a herniated disk, a condition in which all or part of the gelatinous central portion of a cartilage disk that cushions the bones in the spine is forced through a weakened part of the disk, resulting in pain caused by nerve root irritation. Dr. Ploger diagnosed this condition from MRI studies. The MRI studies showed that Ms. Parker had a herniated disk in the cervical spine of her neck.
Ms. Parker had been involved in two automobile accidents prior to the accident with Ms. Robinson. In one of those earlier accidents Ms. Parker suffered a herniated disk, but it was asymptomatic at the time of the accident with Ms. Robinson. Therefore, Dr. Ploger testified that it was his opinion that Ms. Parker's recurrence of pain after the accident with Ms. Robinson was the result of the accident causing an existing herniated disk that had become asymptomatic to become symptomatic.
At the trial Dr. Ploger testified that Ms. Parker's bilateral carpal tunnel syndrome was more probably than not related to the accident. He also testified that the neck and back pain experienced by Ms. Parker were more probably than not a result of the injuries she received in the accident. Finally, Dr. Ploger testified that he had recommended that Ms. Parker undergo surgery to correct the bilateral carpal tunnel syndrome.
At the trial the defendants, Mid-City Automotive Repairs, LLC ("Mid-City"), Colony Insurance Company ("Colony"), and the Government Employees Insurance Company ("GEICO"), contended that Ms. Parker's carpal tunnel syndrome existed prior to her accident with Ms. Robinson. Mid-City, Colony, and GEICO called S. Daniel Seltzer, M.D., an orthopedic surgeon, to testify at the trial. Dr. Seltzer had treated Ms. Parker for injuries that she sustained in one of the prior automobile accidents in which she was involved. Dr. Seltzer testified that he had not diagnosed Ms. Parker with carpal tunnel syndrome and that at the time he treated her, her symptoms were not consistent with that condition. He further admitted that carpal tunnel syndrome can be caused by an injury such as the one Ms. Parker contended that she suffered when she grabbed the steering wheel of her car after the car driven by Ms. Robinson hit her car from the rear.
Gregor Hoffman, M.D., an orthopedic surgeon, testified at the trial on behalf of the defendants. He opined that Ms. Parker's job, which involved working with a computer for approximately half of her workday each day, was the probable cause of the carpal tunnel syndrome that afflicted her. He also opined that her back pain was probably caused by degenerative disk disease rather than by the effects of the accident.
Ms. Parker originally sued several parties, including (1) Stephanie Robinson, (2) her insurer, State Farm Insurance Company, *650 (3) Mid-City, the owner of the car driven by Ms. Robinson[5], (4) Colony, the insurer of Mid-City and the excess insurer of Ms. Robinson, and (5) GEICO, Ms. Parker's uninsured motorist carrier. Prior to the trial, Ms. Robinson and State Farm settled with Ms. Parker for $25,000 plus interest, and they were dismissed from the case.
After Ms. Parker presented her case at the trial, Mid-City was granted a directed verdict on three issues: (1) the claim that Mid-City had negligently entrusted its car to Ms. Robinson, who had been in several automobile accidents and had received several speeding tickets; (2) the claim that there was a mechanical defect in the car loaned to Ms. Robinson; and (3) the claim for future lost income capacity. The trial court judge found that Ms. Parker had not proven these claims. After the defendants had presented their case, the trial court judge found that Ms. Robinson's negligence caused the accident with Ms. Parker. None of these verdicts was appealed.
The jury rendered a unanimous verdict in favor of Ms. Parker. The jury found that Ms. Parker sustained injuries that were caused or aggravated by the accident with Ms. Robinson. The jury also found that Ms. Parker should receive a total amount of $30,881.00, including $5,381.00 for past medical expenses, $20,000.00 for future medical expenses, $500.00 for past lost wages, and $5,000.00 for future lost wages. The jury further determined that Ms. Parker was not entitled to damages for past or future pain and suffering or for permanent residual disability. The trial court judge entered a judgment in favor of Ms. Parker and against Colony in the total amount of $30,881.00 as set forth in the jury verdict. The trial court judgment also granted Colony a credit in the amount of $25,000.00 against the $30,881.00 judgment, because State Farm had already paid Ms. Parker $25,000.00 plus interest prior to the trial as part of the settlement Ms. Parker reached with Ms. Robinson and her insurer, State Farm. Because the judgment in favor of Ms. Parker did not exceed the policy limits of the Colony policy, Ms. Parker's uninsured motorist carrier, GEICO, was dismissed from the suit with prejudice. Finally, Mid City was also dismissed from the suit with prejudice pursuant to the directed verdict that had been granted in its favor.
Both Ms. Parker and Colony have appealed the trial court judgment. Ms. Parker has appealed the amount of her award. Colony has appealed the amount of the credit granted to it in connection with the settlement with State Farm and Ms. Robinson.
DISCUSSION
Ms. Parker has urged a single assignment of error on appeal. Likewise, Colony has urged a single assignment of error. Ms. Parker contends that she should have been awarded general damages in light of the fact that the jury found that the carpal tunnel syndrome and the neck and back pain from which she suffered were caused by Ms. Robinson's negligence. Colony contends that the judgment against it should have been credited with not only the $25,000.00 settlement amount that was paid to Ms. Parker by State Farm pursuant to a settlement agreement but also the amount of interest that was paid by State Farm.
Assignment of Error by Ms. Parker
The jury erred in failing to award the plaintiff an amount for past and future *651 pain and suffering, and past mental anguish, despite awarding her amounts for past medical expenses and future medical expenses, and despite the uncontroverted testimony of the plaintiff and her treating physicians, which provided evidence of such damage.
Ms. Parker asserts that she should have been awarded general damages, because she was awarded special damages. She argues that the failure to award general damages where special damages are awarded constitutes an abuse of discretion on the part of the jury and the trial court. Ms. Parker argues that "[i]t is a well-settled rule that a jury cannot award special damages for personal injuries and refuse to award any amount in general damages where the injuries present objective symptoms." Colony and Mid-City alternatively argue that in Wainwright v. Fontenot, XXXX-XXXX, (La.10/17/00), 774 So.2d 70, the Louisiana Supreme Court rejected the rule cited by Ms. Parker. We find that neither of these arguments is completely accurate.
The Wainwright case involved a young boy, who suffered from post traumatic stress syndrome. He was prescribed five milligrams of the antidepressant drug Prozac to be taken once daily. The pharmacist who filled the prescription put incorrect dosing instructions on the prescription label. Therefore, instead of taking the prescribed five milligrams of Prozac a day, the boy took an adult dosage of twenty milligrams a day. After the boy had taken three incorrect doses of Prozac, he had become violent and irrational. His doctor was contacted, the incorrect dosage instructions were discovered, and the boy was hospitalized overnight for observation and testing. While he was hospitalized, the boy was alert, attentive, and calm. The boy's parents sued the pharmacist, and after a jury trial, the jury awarded $15,000.00 in medical expenses. The jury did not award general damages, however. The Supreme Court in Wainwright upheld the jury verdict and said that the jury could have reasonably concluded that placing the boy in the hospital was "a reasonable precaution for prudent parents to take" after learning of their son's overdose, that his irrational and violent behavior was caused by something other than the Prozac, and that the only adverse effect on the boy from the Prozac overdose was the one-night hospital stay.XXXX-XXXX, pp. 10-11, 774 So.2d at 77.
The Supreme Court concluded in Wainwright that "a verdict awarding medical expenses yet denying general damages is not per se invalid." XXXX-XXXX, p. 9, 774 So.2d at 76. The Supreme Court in Wainwright was addressing for the first time a situation in which the jury had found that the defendant was legally at fault for the plaintiff's injuries and was liable to the plaintiff for medial expenses incurred by the plaintiff but had declined to award the plaintiff any general damages for pain and suffering. XXXX-XXXX, p. 6, 774 So.2d at 74. The Supreme Court did "not dispute that, as a general proposition, a jury verdict such as the one currently before us may be illogical or inconsistent." XXXX-XXXX, p. 8, 774 So.2d at 76. The Supreme Court, however, found that in certain cases "a jury, in the exercise of its discretion as a factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of the defendant's fault." Id. The Supreme Court then cited as an example of such a situation a case in which a plaintiff sustained no injuries in an automobile collision. The plaintiff was awarded special damages for medical expenses but no general damages. The Supreme Court said that this did not constitute an abuse of the *652 jury's discretion, because the jury could have concluded that even though the plaintiff suffered no injuries in the accident, the plaintiff was justified in incurring expenses for a medical examination following the accident to determine if any injuries did, in fact, exist.
In Wainwright, the Supreme Court found that an appellate court reviewing a verdict that awards special damages but no general damages "must ask whether the jury's determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion." Id. Only if the appellate court "determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record." XXXX-XXXXX, p. 9, 774 So.2d at 76. Therefore, the standard of review we are to apply in the instant case is whether the trial court judge and jury abused their discretion by awarding only special damages.
In Green v. K-Mart Corp., 2003-2495 (La.5/25/04), 874 So.2d 838, the Louisiana Supreme Court was again faced with a jury verdict awarding a plaintiff special damages but no general damages. The Supreme Court stated as follows regarding the jury verdict:
Here, the court of appeal correctly determined that the jury abused its discretion in failing to award general damages while awarding a substantial amount for past and future medical expenses. In this case, the jury determined that plaintiff suffered injuries causally related to the accident which required medical attention, and is still suffering an injury that will, in fact, require medical attention in the future. Failing to make a general damage award in such circumstances was an abuse of discretion.
2003-2495, p. 8, 874 So.2d at 844 (emphasis added).
In the instant case the jury obviously determined that Ms. Parker suffered injuries causally related to the accident with Ms. Robinson, that the injuries required medical attention, and that Ms. Parker was still suffering from carpal tunnel syndrome, which would require surgery in the future. Therefore, as in the Green case, the failure of the jury in the instant case to award general damages constituted an abuse of discretion. Therefore, as required by the Wainwright case, we are required to conduct a de novo review of the record.
Our review of the record confirms that as a result of the accident with Ms. Robinson, Ms. Parker suffered neck and back pain because aggravation of a preexisting herniated cervical disk caused that condition to become symptomatic. Additionally, the record supports a finding that Ms. Parker suffered from pain and numbness in both of her wrists and hands as a direct result of the accident. None of the physicians who testified disputed that bilateral carpal tunnel syndrome was a debilitating and painful condition, and Ms. Parker testified that she personally suffered from pain and numbness. Ms. Parker also testified that as a result of the accident she suffered pain in her neck and back. Additionally, Dr. Ploger testified that Ms. Parker suffered from a small percentage of permanent disability from her injuries, and this testimony was uncontradicted.
Nevertheless, there was no testimony from Ms. Parker that she could no longer perform activities that she had performed prior to the accident. Ms. Parker did, however, testify that she took an Extra Strength Tylenol on a daily basis for her pain. There was also some evidence, based on Ms. Parker's testimony, that she *653 suffered some mental anguish due to her injuries because of her concerns about being absent from work as a result of the injuries suffered in the accident. Based on our de novo review of the record, we find that an award of general damages in the instant case is required.
In Rogers v. State, Through Department of Transportation and Development, XXXX-XXXX (La.App. 4 Cir. 3/7/02), 813 So.2d 495, this Court discussed the amount of damages that an appellate court can award after that court finds that there has been an abuse of discretion by the trial court. This Court stated that "[a]fter it has been determined that there has been an abuse of discretion, the appellate court can increase the amount of the award to the lowest reasonable amount within the discretion of the trier of fact." XXXX-XXXX, p. 10, 813 So.2d at 504. The ruling in Rogers comports with the Louisiana Supreme Court's statement in Powell v. Regional Transit Authority, 96-0715 (La.6/18/97), 695 So.2d 1326, 1332 n. 10 that "the award [of damages], if abusive of discretion, is not disregarded, but rather is reduced to the highest amount or raised to the lowest amount within the reasonable range of discretion." If the appellate court determines that the trial court abused its discretion in making or withholding an award for general damages, only then may the appellate court "refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion." Andrus v. State Farm Mutual Automobile Insurance Co., 95-0801 (La.3/22/96), 670 So.2d 1206, 1210.
We have reviewed a number of similar cases in which awards of general damages have been made in connection with injuries resulting in carpal tunnel syndrome and pain from herniated disks. The amounts of general damages that have been awarded in these cases range from a high of $175,000.00 to a low of $25,000.00. In Scamardo v. New Orleans Stevedoring Co., 595 So.2d 1242 (La.App. 4th Cir.1992), a plaintiff was awarded $175,000.00 in general damages for injuries that included fractured ribs, chest trauma, aggravation to pre-existing degenerative changes in his lumbar spine, generalized anxiety disorder, and bilateral carpal tunnel problems. In the Scarmardo case, the plaintiff was able to work only four hours a day in a very limited capacity as a result of his injuries. In Wheelis v. CGU Insurance, 35,230 (La. App. 2 Cir. 12/7/01), 803 So.2d 365, a plaintiff was awarded general damages of $25,000.00 for pain and suffering that lasted approximately fourteen months as a result of injuries that included a broken wrist that resulted in carpal tunnel syndrome.
In several of the cases we reviewed, general damages awards between $35,000.00 and $45,000.00 were given to plaintiffs who suffered from carpal tunnel syndrome. In Trunk v. Medical Center of Louisiana at New Orleans, XXXX-XXXX (La.10/19/04), 885 So.2d 534, the Louisiana Supreme Court reinstated a jury verdict awarding $35,000.00 in general damages to a plaintiff who suffered from ligament injuries to her left wrist that required surgery and from carpal tunnel syndrome. Her injury had occurred over six years prior to the trial, and she still suffered from pain in her wrist at the time of the trial. In Elliott v. Robinson, 612 So.2d 996 (La.App. 2d Cir.1993), a plaintiff was awarded general damages of $40,000.00 in a malpractice action that she brought in connection with carpal tunnel surgery that she had undergone. As a result of the surgery, the plaintiff suffered from damage to the median nerve, which is the nerve affected by carpal tunnel syndrome, and she also had a permanent 30% disability in her left *654 thumb. She was awarded $40,000.00 in general damages for the pain she suffered as a result of the nerve damage and disability. In another case that we reviewed, Williams v. Finley, Inc., XXXX-XXXX (La.App. 3 Cir. 4/6/05), 900 So.2d 1040, the plaintiff was awarded general damages in the amount of $45,000.00 for headache, back pain, carpal tunnel syndrome, and several other conditions that he suffered as a result of a fall. The plaintiff in the Williams case was unable to participate in several activities that he had enjoyed prior to his fall, his decreased mobility and pain affected his mood, and he was unable to engage in intimate relations with his wife.
Based on our review of these cases, we have determined that the lowest reasonable amount that can be awarded in the instant case is $60,000.00 for general damages in connection with Ms. Parker's bilateral carpal tunnel syndrome and the aggravation to her pre-existing herniated disk that occurred as a result of the accident. Therefore, we award a total amount of $60,000.00 in general damages to Ms. Parker.
Assignment of Error by Colony
The trial judge erred in failing to make it clear that the proper amount of the credit in favor of Colony Insurance Company against the judgment rendered in favor of plaintiff should be $29,921.49 rather than $25,000.00.
The judgment in this case contains the following language:
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Gay Parker, and against Colony Insurance Company in the principal sum of THIRTY THOUSAND EIGHT HUNDRED EIGHTY-ONE ($30,881.00) DOLLARS, subject to a credit for the sum of $25,000, previously paid by Stephanie Robinson and State Farm Mutual Automobile Insurance Company, together with legal interest thereon from the date of suit until paid.
Colony contends that the language is unclear and that the phrase "together with legal interest thereon from the date of suit until paid" modifies the phrase "the sum of $25,000." Alternatively, Ms. Parker asserts that the phrase "together with legal interest thereon from the date of suit until paid" refers to the phrase "the principal sum of THIRTY THOUSAND EIGHT HUNDRED EIGHTY-ONE ($30,881.00) DOLLARS." We agree with Ms. Parker.
It is clear to us that the interest to which the judgment refers is interest on the principal sum of $30,881.00 rather than to interest on the amount of the credit for insurance that has been previously paid. The amount of insurance owed by State Farm was the $25,000.00 settlement amount, and the amount of insurance owed by Colony is the total principal amount of the judgment less the $25,000.00 in insurance previously paid. State Farm and Colony are both liable to Ms. Parker for interest on the amount of insurance owed by them. State Farm has paid interest on the $25,000.00 insurance payment that it owed, and Colony is responsible for paying interest on the amount of insurance that it owes.
DECREE
Based on the foregoing discussion, we hereby affirm the trial court judgment with respect to the award of special damages in the principal amount of $30,881.00, we hereby reverse the trial court judgment insofar as the judgment fails to award general damages to Ms. Parker, and we hereby amend the trial court judgment to provide that Ms. Parker is awarded a total of $60,000.00 in general damages. *655 The general damages are being awarded in connection with both the bilateral carpal tunnel syndrome and the aggravation of her pre-existing herniated disk that occurred as a result of the accident with Ms. Robinson.
Judgment is hereby rendered against Colony and in favor of Ms. Parker in the total principal amount of $65,881.00 plus interest as provided by law. This total principal amount includes a credit in favor of Colony for the $25,000.00 insurance payment previously made by State Farm.
AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND RENDERED AS AMENDED.
NOTES
[1] Special damages are those that must be specially pled or that can be determined with relative certainty, and they include such things as the medical expenses a plaintiff has incurred. Wainwright v. Fontenot, XXXX-XXXX, pp. 5-6 (La.10/17/00), 774 So.2d 70, 74.
[2] General damages are those damages that are inherently speculative in nature and cannot be fixed with mathematical certainty. Id. This Court has defined general damages as damages that "involve physical and mental pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other factors that affect the victim's life." Coleman v. Deno, 99-2998, p. 6 (La.App. 4 Cir. 11/6/02), 832 So.2d 1016, 1021, writ denied, XXXX-XXXX, 853 So.2d 635, XXXX-XXXX, 853 So.2d 635, and XXXX-XXXX (La.9/13/03), 853 So.2d 635.
[3] MRI is an acronym for magnetic resonance imaging, which is a procedure in which a magnet linked to a computer is used to create detailed images of areas inside the body.
[4] EMG is an acronym for electromyography, which is a test that assesses the health of the muscles and the nerves controlling the muscles. EMG is an objective test that can be used to confirm a diagnosis of carpal tunnel syndrome, which Ms. Parker asserts was caused in her case by the automobile accident involving Ms. Robinson.
[5] The car driven by Ms. Robinson was loaned to her by Mid-City while her own car was being repaired or serviced by Mid-City.
|
996 F.2d 1226
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.NORTH PACIFIC INSURANCE COMPANY, Plaintiff,v.Joel JUKER, Beny Freeman, and Clear Lakes Agency, Inc., Defendants,Joel JUKER; Beny Freeman,Defendant-counter-claimant-cross-claimants-appellants,v.NORTHERN PACIFIC INSURANCE COMPANY,Plaintiff-counter-defendant-appellee,andClear Lakes Agency, Inc.; Defendant-cross-defendant--Appellee.NORTH PACIFIC INSURANCE COMPANY, Plaintiff-counter-defendant--Appellee,v.CLEAR LAKES AGENCY, INC.; Defendant-cross-defendant--Appellant,andJoel Juker; Beny Freeman,Defendant-counter-claimant-cross-claimants--Appellees.NORTH PACIFIC INSURANCE COMPANY,Plaintiff-counter-defendant--Appellant,v.CLEAR LAKES AGENCY, INC.; Defendant-cross-defendant--Appellee,Joel Juker; Beny Freeman,Defendant-counter-claimant-cross-claimants--Appellees.
Nos. 91-36157, 91-36167 and 91-36169.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 9, 1993.Decided June 23, 1993.
Before WRIGHT, FARRIS and D.W. NELSON, Circuit Judges.
1
Memorandum*
2
Joel Juker ("Juker") and Beny Freeman ("Freeman") directly appeal from a magistrate judge's ruling in favor of North Pacific Insurance Company ("NPIC") in NPIC's declaratory judgment action. Freeman's state court negligence claim for personal injuries sustained while driving Juker's truck was settled for $400,000. The magistrate judge found that the policy issued by NPIC did not cover Freeman's accident and held that the settlement amount was unreasonable; however, a jury found that NPIC was estopped from denying coverage based on representations made to Juker by Clear Lakes Agency, Inc. ("Clear Lakes"). Clear Lakes and NPIC appeal the denial of their motions for JNOV on the estoppel issue. We have jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291. We affirm in part and reverse in part.
BACKGROUND
3
Juker owned two commercial trucks which he used to haul harvested corn for Green Giant Company. In 1986, Green Giant decided that haulers who had partnership agreements with their drivers would no longer be required to obtain worker's compensation insurance. Juker chose to go the partnership route, and obtained the disputed NPIC insurance policy through Clear Lakes Agency in 1987.
4
Freeman was one of Juker's drivers who operated under a 1987 partnership agreement. On September 26, 1987, while hauling a load of corn to Green Giant, Freeman crashed one of Juker's trucks into a dry canal bank and sustained serious injuries. Freeman sued Juker for negligently adjusting and maintaining the truck's brakes. NPIC defended under a reservation of rights and its retained counsel engaged in settlement negotiations. Freeman and Juker eventually settled for $400,000, and the state court entered judgment for that amount. Juker assigned his claims against NPIC and Clear Lakes to Freeman and, in return, Freeman signed a covenant not to execute upon any of Juker's assets.
5
Before the settlement, NPIC filed a declaratory judgment action in federal court against Freeman, Juker, and Clear Lakes, claiming that the accident fell under several express policy exclusions. Juker counterclaimed against NPIC for breach of contract and bad faith based upon NPIC's refusal to pay the $400,000 judgment. Juker also cross-claimed against Clear Lakes for breach of contract and negligence. The parties consented to proceed before a magistrate judge.
6
The court ruled that Juker's claims involved partnership activities, which were expressly excluded under the unambiguous language of the policy. However, the jury found that NPIC was estopped from denying Juker coverage based upon representations made by Clear Lakes. NPIC and Clear Lakes unsuccessfully moved for JNOV. The court then held the judgment amount to be unreasonable and suggested that the parties return to state court to litigate the issues of comparative liability and damages. The magistrate judge also dismissed Juker's counterclaims and cross-claims. All parties timely appealed.
DISCUSSION
7
I. Reasonableness of the State Court Judgment
8
Relying on the testimony of Juker and the attorney whom NPIC retained in the state action, as well as case law from states other than Idaho, the magistrate held that the amount of the state court settlement was unreasonable and unenforceable in the federal action. We reverse because the magistrate had no authority under Idaho law to review the settlement amount.
9
As a general rule, an insurer who has notice of an action between an injured party and an insured will be bound by a judgment against the insured. See, e.g., 44 Am.Jur.2d Insurance § 1455 (1982). NPIC clearly had notice of Freeman's action. Although Idaho law provides for both permissive intervention and intervention as of right, NPIC did not seek to intervene in the underlying state action. See Idaho R.Civ.P. 24(a), (b). Had NPIC intervened, it would have been entitled to challenge the judgment in the state courts.
10
There are no reported Idaho cases regarding whether an insurance company may challenge the amount of a settlement which it negotiated pursuant to its duty to defend.1 The district court based its ruling upon several cases from other jurisdictions which held that insurers should be allowed to challenge the reasonableness and good faith of these settlements.
11
The real concern in this type of case is that the settlement between the claimant and the insured may not actually represent an arm's length determination of the worth of the plaintiff's claim.... Due to this problem, the ordinary standard of collusion or fraud is inappropriate. Thus, we hold that in a case such as this, a settlement may not be enforced against the carrier if it is unreasonable in amount or tainted by bad faith.
12
Steil v. Florida Physicians' Ins. Reciprocal, 448 So.2d 589, 592 (Fla.Dist.Ct.App.1984) (citations omitted). See also Griggs v. Bertram, 443 A.2d 163, 171-74 (N.J.1982) (allocating burden of proof); Detroit Edison Co. v. Michigan Mut. Ins. Co., 301 N.W.2d 832 (Mich.Ct.App.1981); Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277 (Minn.1990).
13
This reasonableness rule is not the law in Idaho. More importantly, these cases arose in a materially different factual context: in each case, the insurer who sought to litigate the issue of reasonableness had refused to defend the insured in the action which led to the settlement. None of these cases involved an insurance company who, like NPIC, retained an attorney to actively negotiate the settlement. Idaho law does not support the magistrate's reasonableness review, nor do these other jurisdictions support an extension of such review to settlements negotiated by the insurer's counsel. The court's decision had no basis in law.2
II. Express Coverage
14
At trial, NPIC argued that Freeman's accident fell under several express policy exclusions. Juker and Freeman countered that the exclusions did not apply to the accident and that the policy was ambiguous. The court held that the policy was not ambiguous and that the exclusions applied, and granted NPIC's motion for directed verdict on the issue of express coverage. We affirm.
A. Burden of Proof
15
Because "insurance policies are contracts of adhesion," exclusions are to be construed strictly. Moss v. Mid-America Fire and Marine Ins. Co., 647 P.2d 754, 756 (Idaho 1982). "[T]he insurer bears the burden of proving that the asserted exclusion is applicable." Viani v. Aetna Ins. Co., 501 P.2d 706, 718 (Idaho 1972), overruled in part on other grounds, Sloviaczek v. Estate of Puckett, 565 P.2d 564 (Idaho 1977). While acknowledging this standard, the magistrate judge instituted an inverse order of proof. Because the issue of express coverage was decided by the court alone, however, there was no danger that the trier of fact would be misled. We decline to reverse on these grounds.
B. Ambiguity
16
Under Idaho law, whether the language of an insurance policy is ambiguous is a question of law for the trial judge. Foster v. Johnstone, 685 P.2d 802, 804 (Idaho 1984). If there is ambiguity, contract interpretation and meaning become questions of fact. Id. at 806. All ambiguities are to be resolved in favor of the insured. Foremost Ins. Co. v. Putzier, 627 P.2d 317, 321 (Idaho 1981).
17
In addition to the policy itself, Juker received a Certificate of Vehicle Insurance for the truck which was involved in the accident. We agree with the magistrate judge that there was no ambiguity between the Certificate and the written policy. As the court noted, "[t]he certificate repeats the policy number, [and] correctly identifies the named insured and the amount of coverage." The Certificate states that the truck is "covered" by the identified policy; it does not, however, state that such coverage is unconditional. The Certificate merely identifies, rather than expands, the written policy coverage.
C. Express Coverage
18
The magistrate judge concluded that Coverage G excluded "coverage operations involving businesses and ownership and operation of motor vehicles." In addition, he found that Coverage J did "not provide coverage during the conduct of a partnership." The court's conclusions are supported by even a cursory reading of the provisions at issue.3
19
Juker and Freeman argue in the alternative that the accident did not involve a "partnership activity" or "business pursuit." They argue that Juker's liability arises only from his negligent adjustment of the brakes, which was neither Juker's "business" nor a partnership activity. However, the policy excludes bodily injury "arising out of" business and partnership conduct, and Freeman was clearly engaged in the business/partnership activity of hauling corn when the accident occurred.
20
Juker and Freeman also allege that the district court erred by not submitting the issue to the jury. Under Idaho law, "questions of application of policy provisions to the particular circumstances of each case are questions of fact, and must be decided on a case-by-case basis, whether or not the provisions themselves are found to be ambiguous." Foster, 685 P.2d at 806. Here, however, the activity in question was covered by the unambiguous policy exclusions as a matter of law, and no question of fact remained for the jury to decide. Because there was no factual issue for the jury to address, the district court did not err by refusing to submit the issue to the jury.
III. Other Claims
A. Clear Lakes
21
Juker cross-claimed against Clear Lakes for breach of contract and negligence in failing to procure an insurance policy which provided the coverage which he had requested. The magistrate judge held that since the jury found coverage by estoppel, Clear Lakes had in fact obtained coverage for Juker and the cross-claims were therefore moot. We agree. Juker got the benefit of his bargain with Clear Lakes in terms of coverage, even if not under the policy language itself. The district court did not err by dismissing the cross-claims.
B. NPIC
22
A bad faith tort claim may be brought "where an insurer 'intentionally and unreasonably denies or delays payment' on a claim" and the insured suffers harm "not fully compensable at contract." White v. Unigard Mut. Ins. Co., 730 P.2d 1014, 1018 (Idaho 1986) (citation omitted). However, "[a]n insurer does not act in bad faith when it challenges the validity of a 'fairly debatable' claim...." Id. at 1020. Here, NPIC refused to pay the claim on the grounds that the accident fell under express policy exclusions. This position was vindicated at trial. Thus, the claim was "fairly debatable" and there was no bad faith.
23
The district court erred, however, in dismissing Juker's breach of contract claim against NPIC. "The purpose of the doctrine of estoppel in insurance cases is to enforce the contract as originally agreed upon by the parties." Lewis v. Continental Life & Accident Co., 461 P.2d 243, 248 (Idaho 1969) (emphasis added). Viewed in this light, NPIC breached its contract with Juker even if it did not breach the express terms of the written policy. We therefore remand with instructions to enter judgment for Juker on his breach of contract claim in the amount of $400,000.
IV. Denial of JNOV
24
Under Idaho law, estoppel requires "[a] promise, reliance, detriment to the insured person, and consequential profit to the company." Lewis, 461 P.2d at 247. The profit element is satisfied where, as here, the insurance company receives the benefit of the insured's premium. Id. at 247. Pursuant to four special interrogatories, the jury found that NPIC was estopped to deny Juker coverage due to the representations of its agent Clear Lakes. Following the verdict, both NPIC and Clear Lakes unsuccessfully moved for JNOV. In denying the motions, the magistrate judge conducted a careful analysis of the elements of estoppel under the substantial evidence standard of review. We affirm.4
25
At trial, Juker testified that in March of 1987, when he sought a new insurance policy, he asked Clear Lakes "to find another company that would insure everything on one policy." The jury heard conflicting testimony from Clear Lakes representative William Assendrup, who denied telling Juker that he was covered for "everything." While the evidence was conflicting, the jury could assess the credibility of both witnesses.
26
The only evidence on the issue of reliance came from Juker himself, who stated that he had relied upon Clear Lakes to provide full coverage in the past and that he continued to rely on it to provide coverage after he began using the partnership agreements. The reasonableness of Juker's reliance was a jury question. Foster, 685 P.2d at 808. Without conflicting evidence, the jury could rely on Juker's testimony.
27
Clear Lakes contends that Juker failed to prove that he was damaged by his reliance because he failed to show that there was other insurance available which would have provided the coverage he desired and which he would have purchased without Clear Lakes' representations. Under Idaho law, however, the availability of other insurance is not an element of estoppel; instead, it is relevant to the jury's analysis of reasonableness. Foster, 685 P.2d at 809. The burden was not on Juker to show that other insurance was available; it was on NPIC and Clear Lakes to show that it was not available, and that Juker's reliance was unreasonable. Without such proof, there was substantial evidence to support the jury verdict.
28
Finally, NPIC argues that no agency relationship existed at the time of the representation because the only discussion of partnership agreements occurred in 1986, when Juker was insured through its previous insurer. As the district court noted, however, any prior discussion would have put Clear Lakes on notice that partnership agreements might be used; that prior knowledge would have been applicable to Clear Lakes' later dealings with NPIC. Given Assendrup's testimony regarding his knowledge of the Green Giant partnership agreements, and Juker's testimony that he informed Clear Lakes of his intent to use the agreements, there was substantial evidence to support the jury finding that Clear Lakes made a representation as NPIC's agent.
V. Attorney's Fees
29
Finally, Juker and Freeman contend that they are entitled to attorney's fees under Idaho Code § 41-1839.5 Awards of attorneys fees are limited to instances where:
30
(1) the insured has provided a proof of loss as required by the insurance policy; (2) the insurance company fails to pay an amount justly due under the policy within thirty days of such proof of loss; and (3) the insured thereafter is compelled to bring suit to recover for his loss.
31
Reynolds v. American Hardware Mut. Ins. Co., 766 P.2d 1243, 1247 (Idaho 1988). Under these standards, Juker and Freeman appear to be entitled to attorney's fees from NPIC. Since Clear Lakes is not an "insurer" as required by the Code, but merely an insurance agent, it is not subject to the statute. The amount of such fees, however, is for the district court to address on remand.
CONCLUSION
32
We REVERSE the magistrate's finding that the state court judgment was unreasonable and we REVERSE the dismissal of Juker's breach of contract claim against NPIC. All other aspects of the magistrate's decision are AFFIRMED. We REMAND to the district court with instructions to enter judgment in favor of Juker on the breach of contract claim in the amount of $400,000 plus accrued interest pursuant to Idaho law and for the determination of the appropriate amount of attorney's fees.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
We reject NPIC's and Clear Lakes' analogy to Rajspic v. Nationwide Mut. Ins. Co., 662 P.2d 534 (Idaho 1983). A stipulation which resolves a single issue in a complex case is unlike a settlement, which disposes of the entire action. Moreover, Idaho has not extended its stipulation analysis to settlements or consent judgments
2
Moreover, this circuit has been reluctant to allow collateral attacks on state judgments which have not been appealed within the state courts themselves. See, e.g., Allen v. United States Fidelity & Guar. Co., 342 F.2d 951 (9th Cir.1965)
3
Farmowner's Coverage G does not apply, inter alia:
(b) to bodily injury or property damage arising out of (1) business pursuits of any insured except (i) activities therein which are ordinarily incident to non-business pursuits and (ii) farming, or (2) the rendering of or failing to render professional services;
(c) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of ... (2) any motor vehicle owned or operated by, or rented or loaned to any insured....
Automobile Coverage J does not apply, inter alia:
[ (c) ] to bodily injury to any employee of the insured arising out of and in the course of his employment ...
(i) to bodily injury or property damage arising out of the conduct of any partnership or joint venture of which the insured is a partner or member and which is not designated in this policy as a named insured....
4
Insurance by estoppel is a viable theory of insurance coverage and recovery in the state of Idaho. See Lewis, 461 P.2d at 246. This circuit recognizes the expansiveness of the Idaho doctrine. United Pacific Ins. Co. v. Meyer, 305 F.2d 107, 113 (9th Cir.1962)
5
The district court denied Juker and Freeman's motion for fees on May 19, 1992, long after the Notice of Appeal was filed; we therefore have no jurisdiction to review the magistrate's decision on this issue. We merely hold that Freeman and Juker meet the requirements of § 41-1839, and leave the factual issues to be addressed by the district court on remand
|
143 F.3d 397
UNITED STATES of America, Appellee,v.Jonathan S. GILBERT, Appellant.
No. 97-3632.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 10, 1998.Decided April 29, 1998.
Nicholas Drees, Federal Public Defender, Des Moines, IA, for Appellant.
Mary C. Luxa, Assistant U.S. Attorney, argued, Des Moines, IA, for Appellee.
Before RICHARD S. ARNOLD,1 Chief Judge, HANSEN, Circuit Judge, and LIMBAUGH,2 District Judge.
RICHARD S. ARNOLD, Chief Judge.
1
After a jury trial, Jonathan Gilbert was convicted of impersonating a federal officer in violation of 18 U.S.C. § 912 (1994). Gilbert appeals, contending that his actions did not constitute a crime as set forth in the statute. We affirm. Gilbert not only falsely asserted that he was an officer of the United States Customs Service, he also caused local police officers to undertake an investigation they would not otherwise have pursued. This is enough, under our cases, to make out a violation of § 912. We therefore affirm.
I.
2
On February 16, 1997, two Carter Lake, Iowa, police officers stopped Gilbert for speeding. One of the officers, Brian Kruse, approached the driver's side of Gilbert's car and requested his license and registration. Gilbert produced a U.S. Customs Inspector badge. Officer Kruse repeated his request for a license and registration, and Gilbert produced the items. Officer Kruse asked about the Customs Inspector badge and Gilbert stated that he was a U.S. Customs Agent. The officer asked to see federal identification, and Gilbert pointed to the badge and said, "That's it." The officer requested picture identification and Gilbert displayed a laminated card from the badge case, which read "Department of the Treasury, U.S. Customs Service, Jonathan S. Gilbert, Customs Inspector, whose photograph and signature are annexed." No signature or photograph was attached to the card. Officer Kruse contacted Police Chief David Martin, who went to the site and asked Gilbert about his alleged employment with the Customs Service. Gilbert replied that he was a U.S. Customs Inspector who had recently transferred from New York to Omaha. Chief Martin asked Gilbert follow-up questions relating to his employment, which Gilbert was unable to answer. Gilbert displayed his badge to Chief Martin during their discussion. Officer Kruse then contacted the Customs Service to confirm Gilbert's status as a Customs Inspector. Two hours later, Customs informed Kruse that Gilbert was not an employee. Gilbert was arrested for impersonating a federal agent.
3
At trial, Gilbert testified that in 1992, while employed by the U.S. Customs Service as an Inspector, he misplaced his badge and credentials. He reported this loss to his supervisors in a memorandum. In 1996, when Gilbert was no longer employed by the Customs Service, he moved to Nebraska. After the move, he recovered the Customs Inspector badge and identification card from a box of books.
4
The United States charged Gilbert with posing as a U.S. Customs Agent, in violation of 18 U.S.C. § 912 (1994). Gilbert unsuccessfully moved to dismiss the indictment. He was tried and convicted by a jury. The District Court3 sentenced him to one year on probation. Gilbert now appeals from the denial of the motion to dismiss and from the conviction.
II.
5
Title 18 U.S.C. § 912 (1994), provides that
6
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.
7
Gilbert was prosecuted under the first portion of the statute, which requires that the defendant both assume or pretend to be a federal officer and act as such. Gilbert contends that the indictment and the evidence failed to establish that he "acted as such." He concedes that his statement to Officer Kruse that he was a Customs Officer establishes that he impersonated a federal agent. However, his display of the badge and identification card, he argues, were part of the initial impersonation and do not meet the additional "act[ing] as such" requirement of the law.
8
This Court has held that "to 'act as such' would be the equivalent of causing 'the deceived person to follow some course he would not have pursued but for the deceitful conduct.' " United States v. Robbins, 613 F.2d 688, 691 (8th Cir.1979) (quoting United States v. Lepowitch, 318 U.S. 702, 704, 63 S.Ct. 914, 916, 87 L.Ed. 1091 (1943)). The Court further interpreted the "acts as such" language as "requiring reliance on the impersonator's assertion of authority." Id. In Robbins, the defendant told several people that he was an FBI agent. To substantiate this claim, he displayed, at various times, a pistol, a set of handcuffs, and an identification card with a badge. He told his girlfriend stories consistent with his assumed identity as an undercover agent. He purchased a car, chartered an airplane, and opened a checking account, each time purporting to be a federal agent. Robbins told a store owner that he was an FBI agent, and a few days later returned to the store carrying handcuffs and wearing a holster containing a revolver. The store owner became suspicious and called the FBI to verify his identity. Robbins was arrested and convicted under 18 U.S.C. § 912.
9
Like Gilbert, Robbins argued that he impersonated an FBI agent but did not " 'act as such' by asserting the authority of an FBI agent." Id. In Robbins, we held that
10
[t]he carrying of a pistol, handcuffs, identification card and a badge go beyond 'mere bravado.' These actions are integral parts of the official routine of an FBI agent. Moreover, we are convinced that the evidence showed that the people who tolerated such acts and accorded some deference to Robbins, did so in reliance on the authority that an FBI agent possesses in order to carry out the duties of his profession.
11
Id. at 692 (citation omitted). Robbins's actions went somewhat beyond the facts here. But a jury could reasonably infer that Gilbert attempted to avoid a ticket by falsely implying that he was on the way to some work-related emergency. This act reasonably caused the police "to follow some course [they] would not have pursued but for the deceitful conduct." Id. at 691 (citation omitted). There was more here than a naked misrepresentation, more than mere bravado or puffing.
12
Affirmed.
1
The Hon. Richard S. Arnold stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He has been succeeded by the Hon. Pasco M. Bowman II
2
The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri, sitting by designation
3
The Hon. Robert W. Pratt, United States District Judge for the Southern District of Iowa
|
118 F.2d 963 (1941)
UNITED STATES
v.
CITY OF GREENVILLE et al. (two cases).
UNITED STATES
v.
WOODSIDE et al.
Nos. 4748, 4749.
Circuit Court of Appeals, Fourth Circuit.
April 7, 1941.
*964 Courtnay C. Hamilton, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst. to Atty. Gen., and Oscar Henry Doyle, U. S. Atty., of Anderson, S. C., on the brief), for appellant.
Wilton H. Earle, of Greenville, S. C. (A. C. Mann, of Greenville, S. C., on the brief), for appellees.
Before PARKER, SOPER and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal in two suits instituted under R.S. 3207, 26 U.S.C.A. Int.Rev.Code, § 3678, to foreclose liens of the United States for income taxes due by Robert I. Woodside and John T. Woodside on real estate owned by them. The court below held that tax claims of the State of South Carolina and the County of Greenville and tax and special assessment claims of the City of Greenville were liens prior to the liens of the United States and accordingly directed the distribution of funds received in the foreclosure suit to the payment of these claims to the exclusion of the claims of the United States. From this judgment the United States has appealed.
The facts are that income taxes due the United States were assessed against Robert I. Woodside for the years 1920, 1921, 1924 and 1925 in the aggregate amount of $15,364.03 and against John T. Woodside for the years 1920, 1921, 1925 and 1926 in the amount of $52,182.63. The assessment list, as to each taxpayer, was received by the Collector of Internal Revenue for the district and was filed in his office May 20, 1930, and demand upon taxpayer for payment was duly made. Subsequently these suits were filed for the foreclosure of the liens so obtained and the lands subject to the liens were sold by the marshal under order of court. The tax claims of the state, city and county represent taxes assessed against this property subsequent to the year 1930, and the same is true as to the special assessment claims of the City of Greenville, with the exception of an item of $835.75 assessed in 1929, as to which the United States concedes priority of lien to the city. The proceeds of the lands sold are not sufficient to satisfy the claims for taxes; and the question is squarely presented whether the liens of the United States have priority over the liens of the state, county and city for taxes and special assessments subsequently assessed or whether these are to be given priority over the antecedent liens acquired by the United States.
The decision of the learned judge below accorded priority to the liens of the state, county and city on the ground that they were specific liens against the property, whereas the liens of the United States were general liens; but we see no basis for this distinction. It is true, of course, that the state, county and city taxes were assessed against the specific property and became liens upon it. S.C.Code of 1932, §§ 2569, 2571 and 7470. And the same is true of the paving assessments made by the city. Code § 7376. Beatty v. Wittekamp et al., 171 S.C. 326, 172 S.E. 122. But these liens were acquired subsequent to the acquisition of the liens of the United States for income taxes, which became liens upon the property, no less valid than if they had been assessed against the property itself, as soon as the assessments were filed in the office of the Collector of Internal Revenue. R.S. § 3186, as amended by the Act of May 29, 1928, c. 852, § 613, 45 Stat. 875, 26 U.S.C.A. Int.Rev. Code, §§ 3670, 3671, 3672, provides:
"If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person. Unless another date is specifically fixed by law, the lien shall arise at the time the assessment list was received by the collector and shall continue until the liability for such amount is satisfied or becomes unenforceable by reason of lapse of time.
"(b) Such lien shall not be valid as against any mortgagee, purchaser, or judgment creditor until notice thereof has been filed by the collector
"(1) in accordance with the law of the State or Territory in which the property *965 subject to the lien is situated, whenever the State or Territory has by law provided for the filing of such notice; or
"(2) in the office of the clerk of the United States District Court for the judicial district in which the property subject to the lien is situated, whenever the State or Territory has not by law provided for the filing of such notice; or
"(3) in the office of the clerk of the Supreme Court of the District of Columbia, if the property subject to the lien is situated in the District of Columbia."
To say that the lien provided by this statute is a general lien on all the property of the taxpayer does not help in the solution of the problem presented; for a lien is not deprived of validity because it attaches to a number of pieces of property instead of to a single piece, nor is it for that reason to be subordinated to a junior lien attaching to a single piece of property. When properly perfected, the lien under the statute constitutes a charge upon specific property of the taxpayer for the satisfaction of which that property may be sold under proceedings instituted for the purpose. As said in Metropolitan Life Ins. Co. v. United States, 6 Cir., 107 F.2d 311, 313, "The Federal statutes create specific liens for taxes and as a corollary give a specific remedy for their removal and when such liens once attach, they may be lifted only as provided thereunder." Such lien is clearly not a mere inchoate lien, or right to lien, as held in Gerson et al. v. Shubert Theater Corp., D.C., 7 F.Supp. 399; for not only was it deemed necessary in the statute itself to provide that the lien should not be valid against any mortgagee, purchaser or judgment creditor until the proper filing of notice, but provision also was made by the Act of June 29, 1939, 53 Stat. 882, 26 U.S.C.A. Int.Rev.Code, § 3672(b), that, notwithstanding the filing of such notice, such lien should not be a valid lien upon certain described securities as against mortgagees, pledgees or purchasers, if they were holders for an adequate and full consideration and "without notice or knowledge of the existence of such lien." No such provisions would be necessary if the lien were intended to be a mere inchoate right to a lien which would attach to specific property only after proceedings had been instituted for its enforcement.
After the lien provided by the statute attaches, the property has in a sense two owners, the taxpayer and, to the extent of the lien, the United States. Com'r v. Coward, 3 Cir., 110 F.2d 725, 727. The lien cannot be affected by state legislation respecting the recording or registering of mortgages or liens. United States v. Snyder, 149 U.S. 210, 13 S.Ct. 846, 37 L.Ed. 705; In re Dartmont Coal Co., 4 Cir., 46 F.2d 455. Nor can it be affected by homestead, spendthrift trust or stock transfer acts of the states. Staley v. Vaughn, Tex.Civ. App., 50 S.W.2d 907; In re Rosenberg's Will, 269 N.Y. 247, 199 N.E. 206, 105 A.L.R. 1238; United States v. Rosenfield, D.C., 26 F.Supp. 433; Cannon v. Nicholas, 10 Cir., 80 F.2d 934. And we think it equally clear that, without the consent of Congress, it cannot be affected by the exercise of state taxing power. McCulloch v. Maryland, 4 Wheat. 316, 436, 4 L.Ed. 579; United States v. Wright, 4 Cir., 53 F.2d 300, 301.
Whether viewed as an interest of the federal government in the property to which it has attached or as an instrumentality of the federal government for the collection of taxes due that government, it is beyond impairment by the exercise of state power. In the first view, it must be remembered that property of the federal government may not be taxed by the states without the consent of Congress, and, in the second, that Congress has power to lay and collect taxes of the sort here involved and to make all laws necessary and proper for that purpose, and that such laws, when made, are the supreme law of the land. Constitution Art. 1 § 8, Art. VI; 26 R.C.L. 107, 108; McCulloch v. Maryland, supra; Florida v. Mellon, 273 U.S. 12, 17, 47 S.Ct. 265, 266, 71 L.Ed. 511. In the case last cited, which involved the contention that the federal estate tax interfered with the state's power of taxation, the court said:
"The act assailed was passed by Congress in pursuance of its power to lay and collect taxes, and, following the decision of this court in respect of the preceding act of 1916 (New York Trust Co. v. Eisner, 256 U.S. 345, 41 S.Ct. 506, 65 L.Ed. 963, 16 A.L.R. 660), must be held to be constitutional. If the act interferes with the exercise by the state of its full powers of taxation or has the effect of removing property from its reach which otherwise would be within it, that is a contingency which affords no ground for judicial relief. The act is a law of the United States, made in pursuance of the Constitution, and therefore, the supreme law of the land, the Constitution or laws of the states to the contrary notwithstanding. *966 Whenever the constitutional powers of the federal government and those of the state come into conflict, the latter must yield."
In McCulloch v. Maryland, supra [4 Wheat. 436, 4 L.Ed. 579], the court, speaking through Chief Justice Marshall, said: "The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared."
Whether the lien provided by the statute is entitled to priority over antecedent liens for taxes duly perfected by states or municipalities, is a question which is not before us and which we need not decide. It would seem, however, that the lien was intended to attach to the property of the taxpayer subject to existing encumbrances; and this is borne out by the provision that it shall not be valid as against mortgagees, purchasers or judgment creditors until notice thereof is duly filed as provided by the act. This interpretation places liens of the federal government and liens of the states on an equal basis for the application of the principle first in time, first in right (Rankin v. Scott, 12 Wheat. 177, 179, 6 L.Ed. 592), which is the principle ordinarily applied with respect to priority of liens, and the one applied between a tax lien and other liens where the tax lien is not made paramount by statute. 61 C.J. p. 934. The contention that priority of right should not be accorded a lien of the federal government prior in time because the statute contains no provision that the federal tax shall be first paid,[1] ignores the principle that a state may not burden the taxing power of the federal government without its consent, and that, in the absence of such consent, no tax upon the property of the federal government or any of its instrumentalities can be sustained. The thing of significance to be noted is, not that the statute does not give priority to the federal tax, but that it does not grant permission to the states to interfere with a lien of the federal government by subsequent exercise of their taxing powers.
We have noted the cases of City of Winston-Salem v. Powell Paving Co., D.C., 7 F.Supp. 424 and Berrymont Land Co. v. Davis Creek Coal Co., 119 W.Va. 186, 192 S.E. 577; but, with great respect to the courts by which these decisions were rendered, we are unable to follow them. They fail to take account of the fact that when the lien created by the federal statute has once attached to the property of the taxpayer it is as specific a lien on that property as is the lien for a tax asserted against the property itself; and they ignore the principle that, without the consent of the federal government, no action of the states may affect its property or any instrumentality which it has created for exercise of its lawful functions. As pointed out above, the lien for taxes is a property right of the federal government. At the least, it is an instrumentality created by that government for the collection of its revenues. We know of no principle upon which it may be subordinated or its value impaired by state action, whether through exercise of the taxing power or otherwise. The error of these cases seems to have arisen from considering the statutory lien of the federal government as analogous to that of the holder of a lien under mortgage, which is of course subject to the power of the state to tax the mortgaged property. The difference is that the rights of the mortgagee as well as of the mortgagor in the mortgaged property are held subject to the power of the state to tax it, whereas the rights of the federal government are not held subject to that power.
The delay in proceeding with the foreclosure of the liens presents no difficulty. It is not contended that the bar of the statute of limitations has fallen; and it is well settled that the rights of the government are not affected by laches of its officers and that it is not estopped by their conduct from asserting its rights. United States v. Kirkpatrick, 9 Wheat. 720, 735, 6 L.Ed. 199; Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791; Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123, 125, 39 S.Ct. 407, 63 L.Ed. 889.
We agree with the court below that, as no distribution in an insolvency proceeding *967 is involved, the provision of § 3466 of the Revised Statutes, 31 U.S.C.A. § 191, providing for priority of payment of debts due the United States, has no application.
For the reasons stated, the judgments appealed from will be reversed, except in so far as the judgment in No. 4748 accords priority to the item of $835.75 for paving assessments ratified in 1929, and the causes will be remanded for further proceedings not inconsistent herewith.
Reversed.
NOTES
[1] See In re Mt. Jessup Coal Co., D.C., 7 F.Supp. 603 and In re Wyley Co., D.C., 292 F. 900. It is to be noted with respect to the Wyley case, however, that the question specifically dealt with was not priority of liens but of distribution under the Bankruptcy Act.
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M ICHA EL O . WA FFO RD ,
Petitioner-A ppellant, No. 06-6082
v. (W . D. Oklahoma)
EDW ARD EVANS, W arden, (CIV-05-998-R)
Respondent-Appellee.
OR DER
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
M ichael O. W afford, an O klahoma state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal the district court’s order dismissing
his 28 U.S.C. § 2254 petition for a w rit of habeas corpus. The magistrate judge’s
report and recommendation suggested dismissal of two of the ten claims because
they were procedurally defaulted. It recommended denial of habeas relief on the
remaining claims on grounds that the state court’s decision was not contrary to or
an unreasonable application of clearly established federal law. The federal
district court adopted the report and recommendation, denied the habeas petition,
and denied M r. W afford’s request to proceed in form a pauperis (“IFP”). Based
substantially upon the reasons set forth in the magistrate judge’s report and
recommendation, we deny M r. W afford’s request for a COA, deny his request to
proceed IFP, and dismiss this matter.
I. B ACKGROUND
In 2002, law enforcement officers in Oklahoma County, Oklahoma
executed a search warrant at an apartment where an informant had previously
made a controlled purchase of cocaine from M r. W afford. Inside the apartment,
officers found M r. W afford, along with cocaine, marijuana, and a loaded revolver.
A state jury in Oklahoma County convicted M r. W afford of (1) trafficking
in illegal drugs (cocaine), in violation of Okla. Stat. tit. 63 § 2-415; (2)
possession of a firearm while committing a felony, in violation of Okla. Stat. tit.
21, § 1287; (3) possession of a controlled substance (marijuana) w ith intent to
distribute, in violation of Okla. Stat. tit. 63, § 2-401; and (4) concealing stolen
property, in violation of Okla. Stat. tit. 21, § 1713. Previously, M r. W afford had
been convicted of a felony.
The state court sentenced him to consecutive terms of imprisonment of
thirty years, ten years, five years, and five years, respectively. The Oklahoma
Court of Criminal Appeals (“OCCA”) affirmed the first three convictions and
reversed the conviction for concealing stolen property. M r. W afford filed an
application for post-conviction relief in state district court; the district court
denied the application, and the OCCA affirmed.
M r. W afford subsequently raised ten claims in a federal § 2254 habeas
petition: (1) he was denied effective assistance of trial counsel; (2) he was denied
2
effective assistance of appellate counsel based on appellate counsel’s failure to
raise a claim of ineffective assistance of trial counsel; (3) he was denied due
process during sentencing because he did not knowingly stipulate to a prior
conviction used to enhance his sentence; (4) trial evidence was insufficient to
support the trafficking and possession convictions; (5) the state should not have
“carve[d] two crimes from the presence of one gun,” Rec. doc. 1, at 12; (6) an
“evidentiary harpoon” deprived him of a fair trial, id. at 13; (7) the trial court
admitted evidence that was more prejudicial than probative; (8) and (9) the trial
court erred by admitting evidence of other crimes; and (10) cumulative errors
denied him a fair trial.
II. D ISC USSIO N
“[U]ntil a COA has been issued, federal courts of appeals lack jurisdiction
to rule on the merits of appeals for habeas petitioners.” M iller-El v. Cockrell, 537
U.S. 322, 336 (2003). A COA may be granted “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). M r. W afford may satisfy this showing by demonstrating that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong, or, if the ruling was procedural, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. M iller-El, 537 U.S. at 336.
3
The magistrate judge recommended that claims one (ineffective assistance
of trial counsel) and three (denial of due process during the sentencing hearing)
should be dismissed due to procedural default. The magistrate judge reasoned
that M r. W afford had not raised these claims in his direct appeal, and the OCCA
concluded in post-conviction review that he had procedurally defaulted on these
claims.
W e agree with the magistrate judge that the OCCA’s procedural bar rule
provided an independent and adequate basis not to reach the merits of either
claim. As to these claims, M r. W afford’s allegations may be adjudicated on the
trial record, and M r. W afford had different counsel at trial and on direct appeal.
See English v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998) (concluding that
Oklahoma’s procedural bar rule can preclude federal habeas review of a claim of
ineffective assistance of trial counsel when (1) trial and appellate counsel differ,
and (2) the trial record alone resolves the claim).
On habeas review, we will not review claims defaulted in state court on an
independent and adequate state procedural ground absent a showing that: (1) a
cause outside the control of the petitioner caused the default, and the petitioner
has suffered prejudice, or (2) a fundamental miscarriage of justice would occur
absent review. Bousley v. United States, 523 U .S. 614, 622 (1998). W e also
agree with the magistrate judge that M r. W afford cannot establish cause for his
procedural default on claims one and three, and that his appellate counsel was not
4
ineffective for failing to raise claims one and three on direct appeal. M r. W afford
has not argued that fundamental miscarriage of justice would result. Therefore,
claims one and three are barred from federal habeas review.
W ith respect to claim two, the OCCA rejected M r. W afford’s ineffective-
assistance-of-appellate-counsel claim, and he has failed under this claim to make
a substantial showing of the denial of any constitutional right under Strickland v.
Washington, 466 U.S. 668 (1984).
The O CCA rejected on the merits claims four through ten in M r. W afford’s
habeas petition. W e therefore must determine whether the OCCA’s adjudication
of these claims was “contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the Untied
States” or “resulted in a decision that was based upon an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
As to M r. W afford’s fourth claim, that evidence was insufficient to sustain
two convictions, we conclude that the OCCA reasonably held that there was
sufficient evidence in the record for a rational jury to find the essential elements
of the trafficking and weapons possession offenses beyond a reasonable doubt.
For the fifth claim, M r. W afford maintains that the State should not have
“carve[d] two crimes from one presence of a gun.” Rec. doc 1, at 12. M r.
W afford obtained relief on this claim in his direct appeal to the OCCA and
5
therefore cannot receive habeas relief now for the same claim.
As to the alleged evidentiary trial errors in claims six through nine, these
alleged errors were not so “grossly prejudicial [that they] fatally infected the trial
and denied the fundamental fairness that is the essence of due process.” Fox v.
Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (internal quotation marks omitted).
In light of the strong evidence support M r. W afford’s guilt, the OCCA’s rejection
of these claims was reasonable. M oreover, M r. W afford has failed to make a
substantial showing of the denial of a constitutional right. W e similarly conclude
that M r. W afford’s tenth claim–cumulative error–does not satisfy the standard for
granting a C OA .
W e have reviewed M r. W afford’s request for a COA, the m agistrate judge’s
report and recommendation, the district court’s orders, and the record on appeal.
For substantially the same reasons set forth by the magistrate judge, we conclude
that M r. W afford is not entitled to a COA. The magistrate judge’s report and
recommendation reflects a careful analysis of the record and is supported by
applicable law . Because jurists of reason would not find the district court’s
conclusions debatable, we DEN Y M r. W afford’s request for a CO A and DISM ISS
this matter. W e also DENY his request to proceed IFP.
Entered for the Court,
Robert H. Henry
Circuit Judge
6
|
39 B.R. 820 (1984)
In re Robert L. BROWN, Jr. and Earline Brown, Debtors.
Robert L. BROWN, Plaintiff,
v.
Thomas A. SHRIVER, Jr., James S. Walsh, Jr. and Taylor F. Seat, Defendants.
Bankruptcy No. 383-00272, Adv. No. 383-0392.
United States Bankruptcy Court, M.D. Tennessee.
May 3, 1984.
Steve Norris, Mayo & Norris, Nashville, Tenn., for debtors.
Jerry Lynn Smith, Asst. Atty. Gen., Nashville, Tenn., for Shriver and Walsh.
MEMORANDUM
KEITH M. LUNDIN, Bankruptcy Judge.
Once again this court must decide whether to enjoin a criminal prosecution of a *821 debtor.[1] Because our prior cases did not address the effect of the § 524 discharge injunction on post-discharge probation revocation, we will resolve two issues: (1) whether restitution imposed as part of a criminal sentence is a debt subject to discharge in bankruptcy; and (2) if restitution can be discharged, whether the state prosecutor can be enjoined from seeking revocation of a debtor's probation because the debtor discharged a restitution award. For the reasons discussed below, the court holds that an award of restitution is a dischargeable debt in bankruptcy. On these facts, it is appropriate to enjoin the District Attorney from seeking to revoke the debtor's probation and to enjoin the defendant Taylor F. Seat ("Seat") from receiving restitution from the debtor.
The following constitute findings of fact and conclusions of law as required by Rule 7052 of the Bankruptcy Rules.
In early January 1981, the debtor, Robert L. Brown ("Brown"), drove his car into Seat's home causing approximately $1,500 in damage. Brown was criminally charged with driving under the influence. On March 10, 1981, Brown was placed in a pretrial diversion program and required to obtain alcohol treatment, to refrain from committing another alcohol-related offense, and to pay $1,500 restitution to Seat. Brown completed all phases of the diversion program except for paying the restitution. Despite failing to pay Seat, Brown was recommended for probation by Assistant District Attorney James S. Walsh, Jr. ("Walsh"). On February 19, 1982, Brown pleaded guilty to driving under the influence and was sentenced to a $50 fine (suspended), 90 days in jail (suspended), court costs, 11 months, 29 days probation, and ordered to pay restitution to Seat. Brown paid Seat $400 of the required amount. On October 1, 1982, Brown was notified to appear for a probation revocation hearing on October 15, 1982 because he "failed to make restitution payments in a timely manner to your victim, Taylor F. Seat." The hearing was continued until November 5, 1982, and again until February, 1983.
On January 31, 1983, Brown and his wife filed a joint Chapter 7 petition. Seat was scheduled as an unsecured creditor in the amount of $1,100.[2] The District Attorney's office was notified of the bankruptcy and the probation revocation hearing was continued until June 17, 1983. On June 17, 1983, Brown filed a complaint in this court for contempt against Thomas A. Shriver, Jr., District Attorney General for Davidson County, Tennessee, Walsh, and Seat.[3] Brown requested a permanent injunction precluding all defendants from revoking Brown's probation or taking any other action to collect the discharged debt. The matter is before the court on cross-motions for summary judgment.
I. RESTITUTION AS A "NONDEBT"
The defendants assert that restitution imposed as part of a criminal sentence or as a condition of probation is not a "debt" and, therefore, is not discharged in bankruptcy.[4] The United States Bankruptcy Court for the Western District of New York has embraced this view:
[I]t does not appear that restitution could be considered a debt nor that a victim could be considered a creditor. With restitution, the victim has no right to payment. It is the criminal court which sets the restitution amount and if it is not *822 paid the victim cannot proceed against the debtor to enforce payment, but instead the probation officer must report the event of nonpayment to the court which in turn determines if a violation of probation has occurred.
In re Button, 8 B.R. 692, 694 (Bkrtcy.W.D. N.Y.1981).
This court cannot accept the narrow conception of "debt" adopted in Button. The relationship memorialized by a criminal court award of restitution is not beyond the scope of "debt" for bankruptcy purposes. "Debt" dischargeable in bankruptcy is not restricted to obligations incurred in consumer or business transactions, but includes all obligations, however, incurred. 11 U.S.C.A. § 101(11) (West 1979) defines "debt" broadly as a "liability on a claim." "Claim" is broadly defined as any "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C.A. § 101(4)(A) (West 1979). The legislative history indicates that "claim" should be interpreted to foster the widest scope of debtor relief:
The definition is any right to payment . . . By this broadest possible definition, and by the use of the term throughout the title 11 . . . the bill contemplates that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case. It permits the broadest possible relief in the bankruptcy court.
H.R.REP. NO. 595, 95th Cong., 1st Sess. 309 (1977); S.REP. NO. 989, 95th Cong., 2d Sess. 21 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5808, 6266. (emphasis added).
The "claim" in this case arose when Brown damaged Seat's home. The "debt," or liability on that claim, existed at that time and, like most debts, was entitled to thrive in the bankruptcy context without the intervention of any court. The debt between the debtor and Seat was fully cognizable in bankruptcy and if not within an exception to discharge, fully dischargeable in bankruptcy before the criminal court became involved. Had Seat gone into a state civil court and reduced his debt to a judgment, in the absence of an exception to discharge or dischargeability, the civil judgment, along with the debt, would have been discharged.
Herein, Seat submitted his damage estimates to the Assistant District Attorney and those estimates were incorporated into a restitution order of a criminal court. If the Bankruptcy Code said that only orders to pay money by civil courts are debts for bankruptcy purposes, then credence could be given to the defendant's argument that a criminal court restitution order does not embody a "debt" dischargeable in bankruptcy. However, nothing in the Bankruptcy Code suggests that only civil courts enter orders to pay money that are subject to discharge in bankruptcy. A restitution order by a criminal court no less acknowledges the existence of a debt than an order of a civil court reducing that claim to judgment. The fact that a criminal court might participate in enforcement or collection of the debt between victim and debtor/defendant does not make the underlying obligation a "nondebt" for bankruptcy purposes.
To win their argument, the defendants must first characterize the restitution order as being disembodied from the underlying "debt" created by Brown's actions. The defendants must then characterize the restitution order as something other than "debt" for bankruptcy purposes. What then is the restitution order? It acknowledges a "right to payment" yet defendants contend that this particular "right to payment" falls outside the notion of "right to payment" in § 101(4)(A). The restitution order confirms a "liability" of the defendant/debtor yet again, the defendants claim this particular "liability" exists beyond the notion of "liability" in § 101(11). The defendants' argument is nonsense. It requires a level of distortion of language most appropriate for the actions of legislatures and not courts. If the right of payment and the liability in a criminal court *823 order of restitution were intended to be outside of the realm of debt for bankruptcy purposes, then how simple it would have been for Congress to include appropriate language in the Bankruptcy Code. The existence of a debt must be determined by substance not metaphysics. See Pauley v. Spong, 661 F.2d 6, 9 (2d Cir.1981); Bailey v. Wright, 584 F.2d 83, 85 (5th Cir.1978); Williams v. State of Washington, 529 F.2d 1264, 1270 (9th Cir.1976). A restitution order of a state criminal courtwhether it is characterized as embodying the pre-existing debt between the victim and the defendant debtor or if it is characterized as creating a separate obligationis a "debt" for purposes of the Bankruptcy Code and is dischargeable in bankruptcy if not otherwise excepted from discharge.
Seat did not object to the dischargeability of his claim. The exceptions to discharge are strictly construed in favor of the debtor to foster comprehensive relief and a fresh start for debtors. See, e.g., Perez v. Campbell, 402 U.S. 637, 648, 91 S.Ct. 1704, 1710, 29 L.Ed.2d 233 (1971); Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915); Murphy & Robinson Investment Co. v. Cross, 666 F.2d 873, 879 (5th Cir.1982); Kansas State Bank and Trust Co. v. Vickers, 577 F.2d 683, 687 (10th Cir.1978); Houtman v. Mann, 568 F.2d 651, 653 (9th Cir.1978); Household Finance Co. v. Danns, 558 F.2d 114, 116 (2d Cir.1977). This court is forbidden to speculate whether the debt resulted from willful and malicious conduct by the debtor within the meaning of 11 U.S.C.A. § 523(a)(6) (West 1979).[5] The defendants' efforts to bypass the normal routes by which claimants defeat a bankruptcy discharge must be rejected.
Strong policies urge rejection of defendants' invitation to create a new exception to discharge for restitution orders. Creditors use (and abuse) state criminal process as a technique for the collection of debt. This fact has been judicially determined by this and other courts. See, e.g., Whitaker v. Lockert, 16 B.R. 917, 922 (Bkrtcy.M.D. Tenn.1982); Taylor v. Widdowson, 16 B.R. 323, 327 (Bkrtcy.D.Md.1981); American Express Co. v. Griffin, 13 B.R. 591, 592 (Bkrtcy.S.D.Ohio 1981). To countenance a judicially-created exception to discharge for restitution orders would be to sanction misuse of the criminal justice system and circumvention of the bankruptcy laws. The Button approach permits a claimant to elevate the quality of its debt by utilizing the criminal courts, while the creditor using appropriate civil remedies runs squarely into the § 727 discharge. This outcome should not be condoned or encouraged by manufacturing an exclusion from the concept of "debt."
On the facts of this case, we must reject the defendants' argument that restitution is part of the State's punishment process and therefore not dischargeable. Some courts have refused to discharge restitution or to issue injunctions against the enforcement of restitution judgments where restitution is found to be "rehabilitative" in nature. These decisions reason that if restitution is punitive and not "compensatory," it is a form of rehabilitation not affected by the bankruptcy discharge. Application of this theory requires examination of the intent and effect of a restitution award. Presumably, restitution intended only as compensation for the victim would generally be dischargeable in bankruptcy. Awards dramatically larger or smaller than the victim's damages might escape discharge. Some would find this an incongruous resultrestitution is intended at least in part to make the victim whole, but it must do more or do less than compensate a victim for loss to avoid discharge in bankruptcy. It is not altogether clear how the intent of the state criminal court or the amount of the restitution award can cause redefinition within the notion of debt for bankruptcy purposes. There is certainly *824 nothing in § 101(11) or § 101(4)(A) to suggest that the definition of debt or claim hinges upon the "intent" of those adjudicating the obligation, or upon the amount of the liability. However, several courts have found some logic to this approach. The United States Bankruptcy Court for the District of Arizona refused to enjoin or discharge restitution in a case in which the amount of restitution ordered by the state court was evidence of punishment rather than payment of debt:
The nominal amount of total restitution under the circumstances fixed by the state court . . . is not the amount of damages sustained by the claimants injured, nor is such an amount due and owing directly to them. . . . This court therefore finds and determines that the underlying purpose of probationary criminal restitution under the facts of the case is not one of simple debt servicing for victims but is in fact rehabilitative in nature.
State of Arizona v. Magnifico, 21 B.R. 800, 803 (Bkrtcy.D.Ariz.1982) (emphasis added). The court commented that if restitution was being used as a subterfuge to collect a private debt, action to stay the effect of the restitution order would be justified:
Those courts, though each noting the reluctance of the Bankruptcy Court to interfere in any way with the enforcement of criminal law, looked to the motivation involved in the criminal charges when litigated to collect the debt. The decisions reflect that the true purpose for the restitution in each case was to make the victim whole after discharge of an underlying, pre-existing debt; therefore, the criminal proceedings involving restitution therein was properly stayed by the Bankruptcy Code under such limited circumstances explained therein.
State of Arizona v. Magnifico, 21 B.R. at 803 (emphasis added). The United States Court of Appeals for the Fifth Circuit has also suggested a limitation on its prohibition of judicial interference to cases involving purely "rehabilitative" restitution:
Carson argues that to require restitution is unfair in light of FNB's failure to assert its rights in the bankruptcy proceeding. If the principal aim of the probation condition were to make the bank whole, this argument might have some appeal.
United States v. Carson, 669 F.2d 216, 217 (5th Cir.1982) (emphasis added). This distinctioncompensation vs. punishment finds some support in 11 U.S.C.A. § 523(a)(7) (West 1979) which excepts from discharge fines and penalties to government entities only if punitive in nature even fines and penalties payable to the government are discharged in bankruptcy if found to be compensatory.[6] However, nothing in § 523 suggests a similar exception for restitution awards not payable to a government.
Even if we accept the argument that only "compensatory" awards of restitution are dischargeable in bankruptcy, the proof clearly establishes that no motive of punishment or rehabilitation supports this order of restitution. Although Assistant District Attorney Walsh submitted an affidavit denying that revocation of Brown's probation was designed to coerce payment of Seat's damages,[7] the affidavit is completely *825 contradicted by Walsh's deposition. The deposition indicates that the District Attorney's motive in requiring restitution and in seeking to revoke Brown's probation was to coerce monetary compensation for Seat:
Question: So you were only compensating victims for almost an economic loss to their automobile or property?
Answer: That's about it. I couldn't possibly try to evaluate physical damage. Sometimes maybe somebody would settle for a hospital bill. That would be done. At those points, I would suggest that they needed an attorney.
* * * * * *
Question: [I]f restitution were in fact made by a third party, i.e., his insurance company or by friends or relatives or anyone else, in other words if the victim were made whole, then that individual would have successfully completed diversion and would be allowed to plead to guilty to wreckless (sic) driving?
Answer: Yes.
(Deposition, p. 30-31) (emphasis added). The amount of restitution was calculated from damage estimates provided by Seat.
Question: But in making these decisions as to whether or not restitution was completed, the defendant's conduct had very little to do with it, did it not? It was basically just how much damage the victim had sustained.
Answer: I would have to say that that in essence would have to be true.
(Deposition, p. 31). The only reason that Brown's probation is being revoked is that he failed to pay restitution. Brown successfully completed all other aspects of the diversion program:
Question: If he had completed the diversion program, you would not have continued the prosecution for DUI?
Answer: Well, if he had made his restitution under his situation with diversion, we certainly would not have prosecuted him for DUI. The problem was he didn't make the restitution, so he fell back to the second line of defense. Which is, if you don't make restitution, you're going to have to do the time. Which was our second hope that we would motivate him to pay this victim damages for his injury. That failed, so now I guess we're back to the third trench.
(Deposition, p. 48) (emphasis added).[8]
Other facts belie Walsh's assertion that punishment and rehabilitation are the motives for the probation revocation. First, Walsh was prompted to seek probation revocation by telephone calls from Seat on April 28, 1982 and October 14, 1982. (Deposition, p. 38). The scheduled hearings were delayed from October, 1982 through June, 1983 because Walsh hoped that Brown would make the payments:
Question: On 11-5-82, what was the purpose of that appearance in court? Was he being revoked on the probation?
Answer: I think it simply was a situation to have this man finally make restitution. We were setting these cases to let Mr. Brown come in and also I believe we had the victim to come in. The victim would tell us he has or hasn't made restitution. Mr. Brown would say, "Please give me some more time" and I would give him some more time. Then three or four months later the victim would call me again and say he has done nothing. Then we would set the case again, and each time this process would go on.
(Deposition, p. 41) (emphasis added). Walsh admits that relatives, friends, or even insurance companies could pay the restitution and thereby satisfy the conditions of probation:
Question: Let's assume that the individual would show you proof of insurance and that at the point in time when the *826 accident occurred that individual was insured. Would you go any further and ask for any other requirements to be imposed on that individual before they could enter the diversion program?
Answer: Well, generally in that particular situation, I would recommend diversion plus restitution. . . . Restitution was always required when there was injury. Whether or not they were covered by insurance was come see, come saw to me. Restitution would be part of the requirement to go into diversion. That was satisfied if they simply handed me a paper and I put it in there, but I would also say diversion plus restitution, which was kind of a key to indicate that it had been paid or would be paid.
Question: You were satisfied in those cases where the individual demonstrated proof of insurance at the time of the loss. You were satisfied in those cases that restitution would be made.
Answer: Yes.
(Deposition, p. 25-26) (emphasis added). The District Attorney's office is not seeking to vindicate the rights of the citizens of the State of Tennessee, it is just trying to force Brown to pay Seat. The restitution award is a debt discharged in this bankruptcy case.
II. INJUNCTIVE RELIEF
For almost as long as federal courts have exercised jurisdiction, there have been statutory limitations on injunctions of state court proceedings. The first Anti-Injunction Act was adopted in 1793 and provided that "nor shall a writ of injunction be granted to stay proceedings in any court of a state."[9] However, as early as 1874, Congress recognized the need to specifically authorize federal courts to enjoin state proceedings to protect the rights of debtors in bankruptcy cases. Section 720 of the Revised Statutes made this unique reference to the bankruptcy laws:
The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.
The modern Anti-Injunction Act was enacted in 1948 and is codified as 28 U.S.C.A. § 2283 (West 1965):
A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction or to protect or effectuate its judgments.
Though the specific reference to bankruptcy has been removed from the anti-injunction statute,[10] it is well recognized that the "expressly authorized" exception in § 2283 includes injunctions authorized under the bankruptcy laws. Davis v. Sheldon, 691 F.2d 176, 179 (3rd Cir.1982). See Diners Club, Inc. v. Bumb, 421 F.2d 396, 398 (9th Cir.1970); Carolina Pipeline Co. v. York County Natural Gas Authority, 388 F.2d 297, 298 (4th Cir.) cert. denied, 393 U.S. 824, 89 S.Ct. 83, 21 L.Ed.2d 95 (1967); In re Coger, 319 F.Supp. 859, 861 (W.D.Va.1970). There is no dispute, however, that strong policy considerations militate against routine bankruptcy court interference with state judicial officers conducting criminal proceedings.[11]See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
When a federal court is asked to interfere with a pending state prosecution, established doctrines of equity and comity are reinforced by the demands of federalism, which require that federal rights be protected in a manner that does not *827 unduly interfere with legitimate functioning of the judicial systems of the States.
Kugler v. Helfant, 421 U.S. 117, 123, 95 S.Ct. 1524, 1530, 44 L.Ed.2d 15 (1975).
The Bankruptcy Code strikes a balance between deference to state criminal proceedings and protection for debtors' rights to discharge and a fresh start. Upon the filing of a bankruptcy petition, the debtor is enveloped by the protection of the automatic stay. 11 U.S.C.A. § 362 (West 1979). However, that miraculous omnipresence does not stay criminal proceedings brought against the debtor.[12] 11 U.S.C.A. § 362 (West 1979) provides in relevant part:
(b) the filing of a petition . . . does not operate as a stay
(1) Under subsection (a) of this section, of the commencement or continuation of a criminal action or proceeding against the debtor.
After filing of the petition, but before the entry of a discharge, claimants can seek to bar the debtor's discharge or to defeat the dischargeability of a particular debt under the provisions of §§ 727 and 523. If the debtor has committed criminal acts, those acts may bar the discharge or dictate the nondischargeability of a debt by the virtue of several different subsections of §§ 727 or 523. See, e.g., Smith v. Pitner, 696 F.2d 447 (6th Cir.1982) (criminal action for murder and subsequent guilty plea of voluntary manslaughter) [§ 523(a)(6) precludes discharge of debt for willful and malicious injuries]; United States v. Carson, 669 F.2d 216 (5th Cir.1982) (false financial statement) [§ 523(a)(2)(B) bars dischargeability for obtaining money or property through use of false financial statement]; Wilson v. Estes, 30 B.R. 91 (Bkrtcy.E.D. Tenn.1983) (misapplication of contract payments) [§ 523(a)(4) excepts from discharge debts created by defalcation in a fiduciary capacity or through embezzlement]; Delay v. Underwood, 25 B.R. 898 (Bkrtcy.W.D. Mo.1982) (conversion) [§ 523(a)(6) prevents discharge of debt for willful and malicious injury to creditor's property]; Kaping v. State of Oregon, 13 B.R. 621 (Bkrtcy.D.Or. *828 1981) (criminal nonsupport of spouse and child) [§ 523(a)(5) prevents discharge of debtor for maintenance and support of spouse and child]; Reid v. Young, 9 B.R. 830 (Bkrtcy.M.D.Ala.1981) (larceny of topsoil) [§ 523(a)(4) bars discharge for acts of larceny].
In the absence of a successful action under §§ 727 or 523, bankruptcy courts have the power and the responsibility to protect discharged debtors from any effort to collect a discharged debt even if the underlying obligation arises from criminal conduct.[13] 11 U.S.C.A. § 524(a)(2) (West 1979) expressly provides that:
(a) A discharge in a case under this title
* * * * * *
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived. (emphasis added).
Section 524(a)(2) enjoins the commencement or continuation of any action to collect or recover the discharged debt, releases the debtor from any legal duty to repay the obligation and renders the debt uncollectible by any legal process.[14]See, e.g., Campbell v. General Finance Corp., 523 F.Supp. 989, 992 (W.D.Va.1981); In re Dickinson, 24 B.R. 547, 550 (Bkrtcy.S.D.Cal. 1982) (discharge operates as permanent injunction against collection of debt and any post-discharge attempt to collect debt is basis for contempt).
The entry of a discharge in bankruptcy has a broader effect than § 362 on criminal proceedings which involve the collection or recovery of debt. The discharge injunction replaces the protection afforded a debtor by the automatic stay.[15] Unlike *829 the stay of § 362, there is no exception to the § 524 discharge injunction for criminal proceedings against the debtor. A criminal proceeding continued or initiated to recover or collect a discharged debt is enjoined by the § 524 discharge injunction and falls outside of the protection otherwise afforded by the Anti-Injunction Act. Considerations of comity and equity are overcome by the stated Congressional preference to protect discharged debtors in bankruptcy:
A Bankruptcy Court must exercise its jurisdiction to determine whether a given criminal proceeding has been instituted as a method for the collection of a civil debt dischargeable under the Code. Were bankruptcy courts to permit prosecutions which have as their ultimate purpose the collection of debts to proceed in state criminal courts unimpeded and unsupervised, an intolerable distortion of the elaborate machinery of the bankruptcy laws devised to fix the rights of creditors against the Debtor and the Debtor's property would be created. In such instances, comity dictates that federal, rather than state, interests prevail.
Taylor v. Widdowson, 16 B.R. at 326.
If Congress had intended to limit the scope of the discharge injunction, it would have done so by appending limiting language or specific exceptions to § 524 as it did in § 362(b)(1). When examining a post-discharge request for injunction of criminal proceedings, if the criminal action is within the scope of § 524, the bankruptcy court can issue injunctive relief:[16]
Once a federal bankruptcy court has determined a debt is discharged, the Bankruptcy Code prohibits actions to collect on that debt. 11 U.S.C. § 524(a)(2) . . . If a bankruptcy court discharges a debt, the Bankruptcy Code prohibits any act to collect . . . any such debt, 11 U.S.C. § 524(a)(2), and thus the civil remedy of restitution, even if arising out of a criminal proceeding, is prohibited. The creditor cannot request restitution or direct the county attorney to request it, and the county attorney cannot recommend it. The federal Bankruptcy Code, by virtue of the Constitution's Supremacy Clause, forbids it, and this Court can and will enjoin any such requests or recommendations . . . Any order to make restitution of a discharged debt would thus directly conflict and obstruct the purposes of the federal bankruptcy law, and would be void under the Supremacy Clause and the holding of Perez v. Campbell, supra, both of which bind all courts of this court.
Barnett v. K-Mart, 15 B.R. 504, 510 (Bkrtcy.D.Kan.1981).
The evidence demonstrates that the revocation of Brown's probation is an action to collect Seat's claim for damages and should be enjoined. The original sentence given Brown by the state court contained elements of punishment and elements of pure debt collection. All that remains of the state criminal proceedings is the payment of damages to Seat.[17] Seat solicited the *830 District Attorney's office to exert pressure for the payment of the restitution. The probation revocation proceedings were delayed for the purpose of allowing Brown to pay restitution. The threat of probation revocation is an action designed to force Brown to pay the discharged debt and is prohibited by the § 524 injunction.[18]
Accordingly, the District Attorney for Nashville, Davidson County, Tennessee will be enjoined from seeking to revoke Brown's probation for failure to make the restitution discharged in bankruptcy. Seat will be enjoined from receiving restitution from Brown.[19]
An appropriate order will be entered.
NOTES
[1] See Whitaker v. Lockert, 16 B.R. 917 (Bkrtcy. M.D.Tenn.1982); Holder v. Dotson, 26 B.R. 789 (Bkrtcy.M.D.Tenn.1982).
[2] May 11, 1983 was set as the last day for filing objections to Brown's discharge. No objections were filed and Brown was routinely discharged of all scheduled debts on August 9, 1983.
[3] Seat neither answered the complaint nor appeared to defend this matter.
[4] 11 U.S.C.A. § 727(b) (West 1979) tells us that a discharge in bankruptcy relieves the debtor of "all debts" with certain exceptions enumerated in 11 U.S.C.A. § 523 (West 1979). 11 U.S.C.A. § 727(b) (West 1979) provides in pertinent part:
Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter. (emphasis added).
[5] 11 U.S.C.A. § 523(a)(6) (West 1979) provides:
(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt
* * * * * *
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.
[6] 11 U.S.C.A. § 523(a)(7) (West 1979) provides:
(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt
* * * * * *
(7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss other than a tax penalty. (emphasis added).
Thus Congress created a special category of nondischargeable debts for punitive obligations owed to governmental entities but allowed the discharge of fines, etc. which are compensatory in nature.
[7] Walsh asserted in an affidavit filed July 27, 1983 that:
The decision to revoke Mr. Brown's probation and the proceedings to do so were not motivated by the desire to collect a private civil debt for any individual, but was rather an attempt to enforce the criminal laws of the State by revoking the privilege of probation when Mr. Brown demonstrated that he would not comply with the conditions thereof.
[8] Illustrative of the lengths to which this collection effort would be taken are Walsh's remarks concerning notations in Brown's file.
I have a notation of 6-17-83. "Defendant has paid about $400. Can't get blood out of a turnip." 7-21-83, "Talked to victim. Told him that state would."
(Deposition, p. 38) (emphasis added).
[9] Act of March 2, 1793, c. 22, § 5, 1 Stat. 335.
[10] The Reviser's Note to § 2283 indicates that:
An exception as to Acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions.
[11] Although under 28 U.S.C.A. § 1481 (1982 Supp.) the bankruptcy court is precluded from enjoining another court, the bankruptcy court may enjoin specific judicial officers from conducting the proscribed activity. See, e.g., Wise v. Ritter, 25 B.R. 440, 442 (Bkrtcy.E.D.Va.1982); Whitaker v. Lockert, 16 B.R. at 920 n. 3; Barth v. Broshot, 4 B.R. 141, 143-144 (Bkrtcy.W.D.Mo. 1980).
[12] On its face § 362(b)(1) appears to allow even a criminal proceeding seeking only the recovery or collection of a debt to proceed prior to entry of discharge and application of the § 524 injunction. Some courts have cushioned the harshness of this interpretation by applying 11 U.S.C.A. § 105(a) to permit pre-discharge injunctions of state criminal proceedings. These courts have overcome in various ways the argument that the general provisions of § 105(a) should not be employed to undo the specific language of § 362(b)(1). Courts invoking § 105 to enjoin criminal proceedings before the entry of discharge cannot be favoring the policy of debtor protection embodied in the concept of the stay because § 362 by its own terms does not provide such protection. Similarly, can it be gainsaid that a § 105(a) injunction protects the debtor's discharge when used to enjoin a criminal action before the debtor is otherwise entitled to a discharge?
When requests for injunctive relief are filed prior to the discharge of the debt involved in a criminal prosecution, the bankruptcy court must be especially cognizant of the principles of comity and equity and seek to avoid premature interference with the state criminal process. Before the discharge injunction of § 524 is in effect only in the most egregious circumstances should a bankruptcy court exercise its equitable power to intervene.
Two disparate views have evolved in applying § 105(a) to predischarge injunction requests. One set of courts has examined the "principal motivation" underlying the criminal proceeding. Under that test, a § 105(a) injunction is proper "[w]hen it is clear that the principal motivation [in prosecuting the debtor] is neither punishment nor a sense of duty, but rather to obtain payment of a discharged debt either by an order of restitution or by compromise of the criminal charge upon payment of the civil obligation." Taylor v. Widdowson, 16 B.R. 323, 325-326 (Bkrtcy.D.Md.1981). See also In re Penny, 414 F.Supp. 1113, 1114-1115 (W.D.N.C.1976); Holder v. Dotson, 26 B.R. at 791; Wise v. Ritter, 25 B.R. at 442; Strassman v. Du-Art Foods, Inc., 18 B.R. 346, 347 (Bkrtcy.E.D.Pa.1982); In re Lake, 11 B.R. 202, 204 (Bkrtcy.S.D.Ohio 1981); In re James, 10 B.R. 2, 3-4 (Bkrtcy.W.D.N.C.1980). A second group of courts has examined the motive of the prosecutor and has granted an injunction only when "bad faith" on the part of the state prosecuting official expressly appears in the record. See, e.g., Davis v. Sheldon, 691 F.2d at 178-179; Lare v. Norton, 24 B.R. 959, 961 (D.Md.1982); Tenpins Bowling, Ltd. v. Alderman, 32 B.R. 474, 480-481 (Bkrtcy.M.D.Ga. 1983); Wilson v. Estes, 30 B.R. 91, 96 (Bkrtcy.E. D.Tenn.1983); Richardello v. Garrick, 28 B.R. 344, 347 (Bkrtcy.D.Mass.1983); Trail West, Inc. v. State of South Dakota, 17 B.R. 330, 331 (Bkrtcy.D.S.D.1982).
[13] The United States Court of Appeals for the Tenth Circuit has noted that:
[T]he power and authority of the bankruptcy court to protect the bankrupt and to secure to him the full benefits of his discharge do not terminate with the entry of the decree of discharge. This solicitude rests upon the basic design of the Bankruptcy Act . . . to afford the debtor a fresh start in life free from debts except those which by statute survive the discharge. . . . The Congress and the courts have always recognized the power and the duty of the bankruptcy court to grant any appropriate and necessary injunctive decree in furtherance or in aid of its jurisdiction or to protect or effectuate its judgments. . . . [T]he remedy afforded to the bankrupt by federal law is not merely a legal remedy in the form of burdensome litigation with successive appeals to reach a court of record. It is a remedy adequate to meet the full requirements of justice a remedy which comports with the spirit and the purpose of the bankruptcy act to secure to the bankrupt the full and complete benefits and advantages of his discharge. . . . It is these practical considerations which prompt bankruptcy courts to exercise their equitable protective powers. Indeed, it is these considerations which impose upon them the inescapable duty to vouchsafe the integrity of their decrees.
State Finance Co. v. Morrow, 216 F.2d 676, 679-680 (10th Cir.1954).
[14] The legislative history concerning § 524(a) emphasizes Congressional disclaim for post-discharge collection efforts:
The change is consonant with the new policy forbidding binding reaffirmation agreements under proposed 11 U.S.C. § 524(d), and is intended to insure that once a debt is discharged, debtor will not be pressured in any way to repay it. In effect, the discharge extinguishes the debt, and creditors may not attempt to avoid that.
H.R.REP. NO. 595, 95th Cong., 1st Sess. 366 (1977); S.REP. NO. 989, 95th Cong., 1st Sess. 80 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5866, 6321-6322 (emphasis added). Most of the injunction cases cited above are pre-discharge and involve considerations of only §§ 362 and 105(a). See note 12 supra. The courts that have addressed post-discharge injunctive relief from criminal proceedings generally do not discuss the scope of the discharge injunction provided in § 524. Whitaker v. Lockert, 16 B.R. at 923 n. 8; Kaping v. State of Oregon, 13 B.R. at 623 (§ 105 and § 524 allow post-discharge injunction if principal motivation of prosecution is debt collection); Davis v. Sheldon, 691 F.2d at 179 n. 8 ("[t]he Davises do not claim they are entitled to an injunction under 11 U.S.C. § 524(a)(2) and, therefore, we make no determintion of the applicability or scope of that section").
[15] 11 U.S.C.A. § 362(c)(2)(C) (West 1979) provides that certain aspects of the stay expire upon the granting of the debtor's discharge. See also Noble v. Yingling, 29 B.R. 998, 1002 (D.Del. 1983); Home Indemnity Co. v. Sims, 31 B.R. 473, 474 (Bkrtcy.W.D.Ky.1983); Skowhegan Savings Bank v. Thomas, 27 B.R. 59, 60 (Bkrtcy.D.Me. 1983); Berry v. Dial Consumer Discount Co., 11 B.R. 886, 891 (Bkrtcy.W.D.Pa.1981). Logically, the delineated exceptions to § 362(a) also cease to operate.
[16] The defendants argue that this holding will turn bankruptcy into a "haven for criminals" in contravention of the spirit of the Bankruptcy Code. The defendants note that:
The bankruptcy laws are not a haven for criminal offenders, but are designed to give relief from financial over-extension. Thus, criminal actions and proceedings may proceed in spite of bankruptcy.
H.R.REP. NO. 595, 95th Cong., 1st Sess. (1977); S.REP. NO. 989, 95th Cong., 2d Sess. (1978). The State, of course, has a legitimate interest to protect its citizenry from criminal acts. However, a creditor cannot use the criminal process to collect an otherwise dischargeable debt by cloaking it as restitution. This court does not question the legitimacy of any other weapons in the State's punishment arsenal, including fines, imprisonment, or restrictive probation. If imprisonment or a nondischargeable fine were involved, this court would not intervene.
[17] From the stipulated facts it appears that Brown completed an alcohol treatment program, avoided the commission of other alcohol related offenses, etc.
[18] The defendants also argue that Brown should raise his discharge as a defense at the probation revocation hearing rather than requesting this court to enforce the § 524 injunction. A similar "exhaustion of remedies" requirement has been imposed by several courts. See, e.g., Davis v. Sheldon, 691 F.2d at 178; Barnette v. Evans, 673 F.2d 1250, 1252 (11th Cir.1982); Porter v. Gaston, 462 F.Supp. 370, 372-373 (E.D.Ark.1978); Wagner v. Miller, 18 B.R. 339, 341 (Bkrtcy.W.D. Mo.1982). This court has previously held, however, that when a creditor violates the discharge injunction:
This court finds no reason to impose such a stringent requirement on the debtor . . . Congress' enactment of the Bankruptcy Code granted debtors certain rights and protections which this court is obligated to enforce . . . This court should provide a ready forum to remedy any interference with the debtor's rights under the federal bankruptcy laws.
Holder v. Dotson, 26 B.R. at 792 n. 4. The United States Supreme Court noted unanimously in Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) that a federal bankruptcy court may use its injunctive powers to save the bankrupt the inconvenience of pleading and proving the bankruptcy discharge in a subsequent state action.
[19] Because the court grants the requested relief, the court does not address the constitutional issues lurking within this proceeding. Judge Paine of this court has previously noted that the utilization of the criminal process to coerce the repayment of discharged debts may be violative of the Tennessee Constitution, Article I, Section 18 which prohibits imprisonment for civil debt. Holder v. Dotson, 26 Bankr. at 792; Whitaker v. Lockert, 16 B.R. at 922 n. 7. The United States Supreme Court has also recently noted in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) that both due process and equal protection are violated by the automatic revocation of probation where the defendant is unable to pay a fine or restitution award. Finally, the imposition of a restitution award on a discharged debtor may cause a conflict with the Supremacy Clause. See, e.g., Davis v. Sheldon, 691 F.2d at 178.
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