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440 F.3d 453
UNITED STATES of America, Appellee,v.Larry L. HENDERSON, Appellant.
No. 04-4110.
United States Court of Appeals, Eighth Circuit.
Submitted: November 15, 2005.
Filed: March 1, 2006.
COPYRIGHT MATERIAL OMITTED Counsel who presented argument on behalf of the appellant was JoAnn Trog of St. Louis, MO.
Counsel who presented argument on behalf of the appellee was Jeffren B. Jensen, AUSA, St. Louis, MO.
Before SMITH, HEANEY, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
1
A jury found Larry Lee Henderson guilty of 20 counts of passing counterfeit checks, and the district court1 sentenced him to 63 months of imprisonment. Henderson appeals his conviction and sentence. This court affirms.
I.
2
Henderson argues there was insufficient evidence to support the jury's verdict. In evaluating sufficiency, this court views the evidence most favorably to the Government, including all reasonable inferences from the evidence. See United States v. Drews, 877 F.2d 10, 13 (8th Cir. 1989). This court reverses "only if the jury must have had a reasonable doubt about an essential element of the crime." United States v. McDougal, 137 F.3d 547, 553 (8th Cir.1998).
3
Henderson was charged with uttering and possessing counterfeited securities, in violation of 18 U.S.C. § 513(a). The Government had to prove that Henderson, with the intent to deceive another person or organization, uttered or possessed a counterfeit security of an organization that operates in or affects interstate commerce. Id.
4
The evidence supports the jury's verdict. Over a dozen victims testified that Henderson physically handed counterfeit checks to them. This directly establishes 14 of the 20 counts.
5
The six counts not supported by such victim testimony were Counts 2, 5, 6, 8, 9, and 16. Count 2 involves a $150,000 check purportedly issued by Union Planters Bank, payable to Henderson. At trial, a teller testified that a female presented the check and a deposit ticket to her. According to a latent-fingerprint analyst, the ticket bore Henderson's fingerprint.
6
Count 16 concerns an $800 check purportedly drawn on the account of Two State Electrical, Inc., payable to Henderson. At trial, the president of Two State Electrical testified that he mailed a check payable to his accountant. He later discovered that the check was cashed, with the payee's name changed to "Larry Henderson." A U.S. Postal Inspector confirmed that the accountant's post office box was near a box rented by Henderson.
7
The remaining counts, 5, 6, 8, and 9, allege bad checks that victims received from the organization Henderson oversaw. The victims in Counts 5, 6, and 9 testified that the bad checks were written to pay for work done for Henderson and the organization. With respect to Count 8, Henderson admitted he forwarded the check. This evidence, combined with reasonable inferences from other evidence at trial, supports the jury's verdict.
II.
8
Henderson argues that he is entitled to a new trial because the Government failed to disclose information regarding the organizational victims in this case, as required by Federal Rule of Criminal Procedure 12.4(a)(2):
9
If an organization is a victim of the alleged criminal activity, the government must file a statement identifying the victim. If the organizational victim is a corporation, the statement must also disclose the information required by Rule 12.4(a)(1) [i.e., the identity of any parent corporation and any publicly held corporation owning at least 10% of the victim's stock, or that there is no such corporation,] to the extent it can be obtained through due diligence.
10
The statement must be filed "upon the defendant's initial appearance." Fed. R.Crim.P. 12.4(b) (2002).
11
The Government admits not filing the disclosure statement for the organizational victims. Henderson acknowledges that, because he did not object to this failure, the standard of review is plain error. United States v. Olano, 507 U.S. 725, 731-732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Henderson is thus entitled to relief only if he shows that the plain error affected his substantial rights, and seriously affected the fairness, integrity or public reputation of the judicial proceedings. Id. at 732, 113 S.Ct. 1770.
12
Henderson complains that "it is impossible to prove an unknown" and that he "cannot ascertain the effect of the prejudice because it simply cannot be known what the implications of filing of the compliance would have disclosed." However, "[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id. at 734, 113 S.Ct. 1770. Henderson has not met that burden. He points to no evidence that the Government's failure to file the disclosure statement affected his substantial rights.2 Indeed, the district judge had notice of the organizational victims even without the disclosure statement, because they were identified in the Superceding Indictment. Accordingly, there is no reversible error.
III.
13
The Government sought to present evidence that Henderson had been convicted of bank fraud (for writing bad checks) and that his supervised release was twice revoked for writing bad checks. The district court admitted the evidence over Henderson's objection that it was cumulative and prejudicial. Henderson now argues that he is entitled to a new trial.
14
The district court acts within its discretion in admitting evidence of a prior conviction if (1) the evidence is relevant to an issue other than the defendant's character; (2) it is similar in kind and not overly remote to the crime charged; (3) it is supported by sufficient evidence; and (4) the potential unfair prejudice of the evidence does not substantially outweigh its probative value. United States v. Anwar, 428 F.3d 1102, 1111 (8th Cir.2005).
15
Those criteria are met here. The prior convictions for writing bad checks, as well as the supervised release violations for bad checks, are similar to the offenses at issue and relevant to Henderson's knowledge in passing counterfeit checks. The prior convictions and violations of supervised release are supported by sufficient evidence, namely Henderson's admissions in the plea agreement. Finally, the potential of unfair prejudice is outweighed by the evidence's probative value. The court instructed the jury to consider the evidence only to determine knowledge, intent, opportunity, and absence of mistake.
16
Henderson also argues that the district court erred in admitting evidence that he was convicted of felony child neglect. Even if the court abused its discretion in admitting the evidence, Henderson is not entitled to a new trial because he has not shown that the verdict would have been different if the evidence were excluded. See United States v. Velazquez-Rivera, 366 F.3d 661, 666 (8th Cir.2004) ("Even if the district court erred in admitting the evidence, we will not reverse if the admission of the evidence was harmless"); Fed. R.Crim.P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded"). As discussed, the Government presented ample proof of the charged counts.
IV.
17
The Government sought to introduce two audio recordings of telephone conversations between victim Georgia Monica and a male identifying himself as "Steven Anderson," but whom the Government contended was Henderson. The district court admitted the evidence over Henderson's objection that it was cumulative and prejudicial.
18
A proper foundation for the introduction of tape-recorded evidence requires that "the recording device was capable of taking the conversation now offered in evidence." United States v. McMillan, 508 F.2d 101, 104 (8th Cir.1974). Henderson argues that the device was "not capable of receiving a two-party conversation" over the telephone because it was designed for hand-held dictation. This argument has no support in the record. "The very fact that the tape recordings exist establishes that the recording device was capable of picking up sounds and taking the conversation offered." United States v. McCowan, 706 F.2d 863, 865 (8th Cir.1983).
19
Henderson also asserts that the tapes include only part of the conversation, allowing unnecessary jury speculation. However, Henderson has not even attempted to explain how the incompleteness of the tapes could lead a jury to draw conclusions adverse to him.
20
Finally, Henderson contends that the evidence on the tapes was cumulative to Monica's testimony under Federal Rule of Evidence 403. The tapes were not cumulative. Hearing the tapes allowed the jury to compare the recorded voice of "Steve Anderson" with the voice of Henderson, who testified at trial. Accordingly, the tapes were uniquely probative. No abuse of discretion occurred.
V.
21
Henderson claims that the court erred in instructing the jury that it could find him guilty even if it found that he only aided and abetted the crimes charged. According to Henderson, the Government introduced this theory of guilt at the eleventh hour, and the Government throughout trial treated him as a principal.
22
This court finds no error in the district court's instruction, which closely tracks Eighth Circuit Model Instruction 5.01. The Government at trial did not introduce a new charge against Henderson, just an additional theory of guilt. Because Henderson attempted in his testimony to implicate other individuals for the charged crimes, the instruction was warranted. In each count, the Superceding Indictment cites 18 U.S.C. § 2, which states: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
VI.
23
Finally, Henderson argues that the district court erred in sentencing him under a mandatory guidelines scheme, requiring a resentencing. Henderson is correct that the district court erred in applying the guidelines as mandatory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Henderson preserved his argument in the district court, this court reviews for harmless error. United States v. Haidley, 400 F.3d 642, 644 (8th Cir.2005). This court has held that mandatory application of the guidelines is harmless error when the district court had the discretion to impose a lesser sentence but instead sentenced the defendant in the middle of the sentencing range. United States v. Sutherlin, 424 F.3d 726, 728 (8th Cir.2005). Here, the district court sentenced Henderson to 63 months of imprisonment—the top of the guideline range—and made comments adverse to Henderson. The Government met its burden of showing harmless error.
VII.
24
Henderson's conviction and sentence are affirmed.
Notes:
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri
2
Henderson argues that he does not have to demonstrate prejudice to his substantial rights, claiming the failure to file the disclosure statement is a structural error. However, the Supreme Court has not recognized nondisclosure as a structural errorSee Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (listing the "very limited class of cases" in which structural error has been found).
|
Case: 18-14619 Date Filed: 10/17/2019 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 18-14619; 18-14620
Non-Argument Calendar
________________________
D.C. Docket Nos. 2:17-cr-00020-LGW-BWC-1,
2:18-cr-00030-LGW-BWC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SUSAN ANDERSON,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
________________________
(October 17, 2019)
Before WILLIAM PRYOR, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:
Case: 18-14619 Date Filed: 10/17/2019 Page: 2 of 2
B. Reid Zeh III, appointed counsel for Susan Anderson in these direct criminal
appeals, has moved to withdraw from further representation of the appellant and
filed briefs pursuant to Anders v. California, 386 U.S. 738 (1967). Our independent
review of the entire record reveals that counsel’s assessment of the relative merit of
the appeals is correct. Because independent examination of the entire record reveals
no arguable issues of merit, counsel’s motions to withdraw are GRANTED, and
Anderson’s convictions and sentences are AFFIRMED.
We recognize that Anderson’s response to counsel’s motion to withdraw
contains allegations that counsel provided ineffective assistance. Because claims of
ineffective assistance of counsel are best presented in a 28 U.S.C. § 2255 motion
rather than on direct appeal, we decline to consider these claims at this time, see
Massaro v. United States, 538 U.S. 500, 504–05, 508 (2003), though Anderson is
free to raise these allegations on collateral review in a § 2255 motion.
2
|
318 F.3d 1161
UNITED STATES of America, Plaintiff-Appellee,v.Robert M. HANEY, Defendant-Appellant.
No. 00-1421.
United States Court of Appeals, Tenth Circuit.
February 4, 2003.
David A. Lane, Miller, Lane, Killmer & Greisen LLP, Denver, CO, for Defendant-Appellant.
Daniel S. Goodman, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Washington, DC (John W. Suthers, United States Attorney, and Andrew A. Vogt, Assistant United States Attorney, Denver, CO, with him on the brief), for Plaintiff-Appellee.
Before TACHA, Chief Circuit Judge, SEYMOUR, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ and O'BRIEN, Circuit Judges.
ON REHEARING EN BANC
PAUL KELLY, JR., Circuit Judge.
Background
1
Defendant-Appellant Robert M. Haney was charged with attempted escape from prison, 18 U.S.C. § 751(a), and possession of escape paraphernalia, 18 U.S.C. § 1791(a)(2), (d)(1)(B). A jury acquitted him of the former, but convicted him on the latter. He was sentenced to thirty six months imprisonment to run consecutively to previous federal sentences to be followed by three years supervised release. 1 R. Doc. 285 at 2-3. On appeal, Mr. Haney argued that the district court erred in (1) not permitting a duress defense to the charge of possession of escape paraphernalia, and (2) failing to grant a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The panel reversed Mr. Haney's conviction on the first point and therefore did not reach the second. United States v. Haney, 287 F.3d 1266, 1267 (10th Cir.2002).
2
We granted rehearing en banc, requesting that the parties address the following issues in addition to any other pertinent points:
3
(1) whether, in the prison context, an inmate who is not threatened but assists in the escape of another can claim to have acted under duress (third-party duress defense), and (2) if so, whether an inmate must make some previous attempt to contact prison authorities in order to prove the lack of a reasonable alternative.
4
Having carefully reviewed the record, it appears that Mr. Haney did not raise a duress defense as to the charge of possession of escape paraphernalia. Even if he did, his objection to the lack of a duress defense was based upon his actions as an aider and abetter. In convicting Mr. Haney, the jury responded on the special verdict form that Mr. Haney was convicted as a principal only, not on an aiding and abetting theory. 1 R. Doc. 217 at 2. Thus, either based upon a failure to raise the defense as to the possession of escape paraphernalia charge, or by limiting his assertion of the defense only to his capacity as an aider and abetter, Mr. Haney has waived any claim on appeal that his conviction should be reversed for lack of a duress instruction. We further hold that the failure to so instruct does not constitute plain error. Fed.R.Crim.P. 52(b). Accordingly, we now vacate the panel opinion, and remand the case to the panel for disposition of the sentencing issue raised on appeal.
Discussion
5
A criminal defendant is entitled to an instruction on his theory of defense provided that theory is supported by some evidence and the law. United States v. Scafe, 822 F.2d 928, 932 (10th Cir.1987). We have stated:
6
When a criminal defendant has raised a theory of defense, the trial court should refer to that theory and to the testimony bearing on it and submit the issue with an instruction on the applicable law. The jury should be advised of the defendant's position so as to put the issues raised by the theory of defense squarely before it.
7
United States v. Lofton, 776 F.2d 918, 920 (10th Cir.1985) (citations omitted). In this case, Mr. Haney's theory of defense included duress only insofar as he might be convicted on a theory that he aided and abetted his co-defendant who had been threatened.
Fed.R.Crim.P. 30 then provided:
8
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.
9
A request for an instruction before the jury retires for deliberations is insufficient to preserve an objection to the actual instructions of the court. Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Here, the court held a number of charge conferences prior to instructing the jury and allowed counsel to object after the jury charge based on the record previously made. 16 R. (00-1429)1543. That record reveals that Mr. Haney objected on the basis that he should receive a duress instruction only in response to a theory that he aided and abetted his co-defendant's attempted escape.
10
Before reaching the merits of this matter, we must first inquire (1) whether Mr. Haney sought a duress defense on the charge of possession of escape paraphernalia, and if so, (2) under what conditions? Only by piling inference on inference would we be able to conclude that Mr. Haney sought to assert such a defense as to possession of escape paraphernalia charge. The record is unequivocal, however, that the duress defense Mr. Haney sought to assert was limited specifically to the extent that a jury might find that he aided and abetted his co-defendant.
A. Pretrial Proceedings
11
In a motion to sever his trial from that of his co-defendant, Mr. Haney indicated that he intended to assert a duress defense because he was assisting his co-defendant in his escape attempt and honestly believed that his co-defendant's life was in danger. 1 R. Doc. 51 at 1-2. The government then filed a motion in limine requesting the district court to require Mr. Haney and his co-defendant to make a pretrial showing that they were entitled to the duress defense. 1 R. Doc. 72 at 1. Mr. Haney then filed a "Notice of Defense" which contained the broad assertion that he intended to "interpose a defense ... of duress as it relates to his co-defendant's life being at stake." 1 R. Doc. 88 at 1. The Notice of Defense did not specifically indicate whether the defense would be asserted to both charges or only the attempted escape charge. The government's motion only mentions the duress defense on the attempted escape charge. 1 R. Doc. 72 at 2.
12
The district court ruled that Mr. Haney's co-defendant would be permitted to assert a duress defense, 1 R. Doc. (00-1429) 114 at 4, but reserved ruling on Mr. Haney's request. 5 R. (00-1429) at 121, 126. At that hearing (May 11, 1999), defense counsel explained "that we have attempted to enter a duress defense, solely in terms of Mr. Haney. It's been couched in terms of Mr. Haney aiding and abetting Mr. Francis. We've been arguing that from the beginning." 5 R. (00-1429) at 121. Several months later, Mr. Haney then filed a memorandum in support of his position that he, too, should be allowed to assert the defense "to the charges pending" against him. 1 R. Doc. 138 at 3 (emphasis added). In response, the government argued that Mr. Haney should not be allowed to assert a duress defense because (1) duress was unavailable as a matter of law because the threat was to a third-party, non-family member, and (2) he could not meet the elements of duress even if the defense was available in these circumstances. 1 R. Doc. 142 at 6-8.
13
B. The District Court's Status Conference on Mr. Haney's Duress Defense
14
The district court heard argument on the issue at a status conference held on November 19, 1999. At that hearing, Mr. Haney's argument that he was entitled to the duress defense clearly focused on the attempted escape charge. His counsel also informed the district court that Mr. Haney's primary defense to the charges would be that he did not have the specific intent to escape; he was merely assisting his co-defendant in his escape attempt. 7 R. (00-1429) 17. Counsel stated:
15
At trial Robert Haney is not going to interpose a duress defense to his alleged attempted escape.... In other words, if the government can prove that Robert Haney was himself trying to escape from custody, we have no duress defense.... [I]f the jury believes Haney was trying to escape, they can convict Haney. But if they believe he was simply trying to aid or abet or act as an accomplice to Francis, then they need to find him not guilty under a duress defense.
16
7 R. (00-1429) 20-21. The full transcript from the status conference demonstrates that Mr. Haney's only argument was that he was entitled to a duress instruction on the attempted escape charge if the government sought an aiding and abetting instruction on that charge. Counsel stated that, "I conceded in my motion Haney should not have a duress defense as it applies solely to his own alleged attempted escape." 7 R. (00-1429) 29.
17
A further indication that Mr. Haney's only argument was that he be allowed to assert the duress defense if the government sought an aiding and abetting instruction is counsel's offer to enter into the following stipulation with the government:
18
[I]f I can get a stipulation from the government that they will not argue aiding and abetting, facilitation, encouraging, accomplicing on their escape with Robert Haney, then I can argue to the jury that, hey, he wasn't trying to escape. He was simply trying to help Francis escape. If you find that he himself was not trying to escape and he was merely trying to help Francis escape, you must find him not guilty on all charges, all right? If I make that argument to the jury, I don't need a necessity or duress defense.
19
7 R. (00-1429) 27; see also id. at 28 ("If... Mr. Haney isn't going to get nailed for assisting Mr. Francis and we intend to present a lot of evidence in this trial that he wasn't trying to escape, he was merely trying to assist Mr. Francis we don't need necessity. We don't need duress."). Based on the government's representation that it did not intend to rely on an aiding and abetting theory, the district court characterized the duress defense issue as "a nonissue." 7 R. (00-1429) 29. In response to counsel's statement that, "I conceded in my motion Haney should not have a duress defense as it applies solely to his own alleged attempted escape," the court stated, "[y]ou may concede it, but I am ordering it. There will be no duress defense available to Defendant Haney as it relates to the charge of attempted escape from the prison because there is no record to support that." 7 R. (00-1429) 29-30.
20
Thus, Mr. Haney's assertion of the duress defense was directed at the attempted escape charge, only insofar as the jury might convict him on an aiding and abetting theory. We recognize that Mr. Haney's co-defendant received the duress instruction on both charges, 1 R. Doc. 219, Instr. Nos. 34; 16 R. (00-1429) 1536-37, and the district court's written order denying the duress defense characterized Mr. Haney's position as "he should be able to assert a duress claim to the charges of attempted escape." I R. Doc. 152 at 1. These facts however do not persuade us that either the district court or the government was aware that Mr. Haney sought a duress defense on the possession of escape paraphernalia charge, particularly where every record conversation addresses attempted escape.
C. Jury Instructions and Verdict
21
Subsequent to the district court's decision on Mr. Haney's duress defense, Mr. Haney filed a brief arguing that he could not be convicted as an aider and abetter unless he was given the opportunity to assert the duress defense. I R. Doc. 195 at 2. The government argued that the jury could be properly instructed on aiding and abetting even though the indictment did not charge Mr. Haney with violating the aiding and abetting statute, 18 U.S.C. § 2.1 I R. Doc. 194 at 1-2. At trial, the jury was instructed on aiding and abetting. I R. Doc. 219, Instr. No. 35; 16 R. (00-1429) 1537-39. On the special verdict form requested and submitted by Mr. Haney, the jury found him guilty only of the possession of escape paraphernalia charge, based upon his actions "as a principal only, not as an aider and abettor. ..." I R. Doc. 217 at 2 (emphasis added); 16 R. (00-1429) 1543. Even if Mr. Haney intended to raise the duress defense as to the possession of escape paraphernalia charge, Mr. Haney's theory of duress never encompassed his actions as a principal.
22
Were there any doubt, at the charging conference Mr. Haney objected to the aiding and abetting instruction as follows:
23
THE COURT: Mr Lane, what's your objection to [instruction] 34?2
24
MR. LANE: Well, Judge, I've already stated for the record that you're denying us a vicarious defense of duress.
25
THE COURT: Right.
26
MR. LANE: And you're conferring vicarious liability as an aider and abettor. So even if the jury finds that Robert Haney was not himself trying to escape, but he was simply aiding Tony Francis in trying to escape, Haney could be convicted of a crime that Francis has vicarious has a duress defense to. So I think that's inconsistent. I think its unfair. That's my objection to instruction 34.
27
14 R. (00-1429) at 1108-09. Plainly, Mr. Haney's defense never encompassed the theory that he acted under duress with respect to possession of escape paraphernalia in his own right rather than as an aider and abetter.
D. Harmless Error
28
We need not decide whether Mr. Haney was entitled to a duress instruction limited to his role as an aider and abettor, even assuming he properly objected to the lack of such an instruction on the possession of escape paraphernalia charge. The district court's failure to instruct was harmless given the jury's decision that he was not criminally responsible on an aiding and abetting theory. See Fed.R.Civ.P. 52(a); United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
E. No Plain Error
29
Mr. Haney was not entitled to assert a duress defense and receive a duress instruction based upon his actions as a principal. The district court was not presented with that defense. To the contrary, the district court was told repeatedly that Mr. Haney did not assert a duress defense to any claim that he was attempting to escape. Thus, his theory on appeal is forfeited. The rule concerning forfeiture encourages resolution of issues that are often factually dependent at the district court and avoids inconsistent strategy on appeal.
30
That said, we still may review for plain error. See Jones, 527 U.S. at 388, 119 S.Ct. 2090. To notice plain error under Fed.R.Crim.P. 52(b), the error must (1) be an actual error that was forfeited; (2) be plain or obvious; and (3) affect substantial rights, in other words, in most cases the error must be prejudicial, i.e., it must have affected the outcome of the trial. See Olano, 507 U.S. at 733-34, 113 S.Ct. 1770. Even if these requirements are met, this court's power to correct the error is permissive, not mandatory. Our discretion should be exercised in those comparatively rare instances where the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 732, 113 S.Ct. 1770.
31
Without deciding the issue, the state of the law concerning third party duress in the prison context hardly has the type of clarity that would require a district court to instruct sua sponte on duress. While the trial judge must make every effort to see that the trial is fair, that responsibility does not extend to suggesting theories of prosecution or defenses, let alone after being told that certain theories were not being asserted.
32
Although the Supreme Court has recognized the defense of duress or necessity in the prison escape context, it has not passed on such a defense where a nonthreatened inmate claimed duress based upon threats to another inmate. See United States v. Bailey, 444 U.S. 394, 398, 411, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); see also United States v. Boomer, 571 F.2d 543, 545 (10th Cir.1978). Until the panel opinion in this case, there was no authority (other than United States v. Lopez, 885 F.2d 1428 (9th Cir.1989) which involved a quasi-familial relationship) for a duress defense where one inmate volunteers to help another inmate escape. Moreover, even courts considering the traditional duress defense in the prison context are divided on what must be shown to prove the lack of a reasonable alternative to committing the offense, i.e. whether (and in what circumstances) there must be a resort to prison authorities first. See United States v. Tokash, 282 F.3d 962, 969 (7th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 2344, 153 L.Ed.2d 172 (2002); United States v. Bello, 194 F.3d 18, 27 (1st Cir.1999); United States v. Haynes, 143 F.3d 1089, 1090-91 (7th Cir.1998); United States v. Riffe, 28 F.3d 565, 570 (6th Cir.1994); Riffe, 28 F.3d at 570, 571-72 (Kennedy, J., dissenting). Under these circumstances, we cannot conclude that the failure to instruct on duress was plain error. Cf. United States v. Marshall, 307 F.3d 1267, 1270 (10th Cir.2002) (an error generally is not plain where there is no Supreme Court or controlling circuit authority, and other circuit authority is divided).
33
Mr. Haney's conviction is AFFIRMED, and the appeal is REMANDED to the panel for disposition of the sentencing issue.
Notes:
1
18 U.S.C. § 2(a) provides that an aider and abetter may be punished as a principalBreeze v. United States, 398 F.2d 178, 183-84 (10th Cir.1968).
2
Appears as Instruction No. 35 in the final charge. I R. Doc. 219; 16 R. 1537
|
289 Wis.2d 218 (2005)
709 N.W.2d 111
2006 WI App 20
EISENBERG v. DEUTSCH, JR.[]
No. 2004AP001178
Court of Appeals of Wisconsin.
December 22, 2005.
Unpublished Opinion. Affirmed and remanded.
NOTES
[] Petition to review filed.
|
73 F.3d 1108
Williams Produce, Inc.v.INS*
NO. 95-8316
United States Court of Appeals,Eleventh Circuit.
Dec 12, 1995
Appeal From: N.D.Ga., No. 93-00220-A
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
|
654 P.2d 124 (1982)
Larry Dean OSBORNE, Petitioner,
v.
DISTRICT COURT OF the NINTH JUDICIAL DISTRICT, State of Wyoming, Respondent. and
Janice Carol Osborne, Real Party in Interest.
No. 5719.
Supreme Court of Wyoming.
November 24, 1982.
*125 Timothy J. Judson, Seipt & Judson, Riverton, for petitioner.
Richard D. Gist, P.C., Lander, for respondent.
Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
ROSE, Chief Justice.
The petitioner, Larry Dean Osborne, seeks the issuance of a writ of prohibition to prevent District Judge W.J. Nicholas from further acting or presiding in a divorce action filed by Janice Carol Osborne in the District Court of the Ninth Judicial District. The filing of the action in this court came about as a result of the district judge's refusal to remove himself and to appoint another district judge to hear the matter as provided by Rule 40.1(b)(1) W.R.C.P.[1]
*126 Under the facts set out herein, we find the trial judge's denial of petitioner's Rule 40.1(b)(1) rights to be erroneous and will grant the petition for a writ of prohibition.
FACTS
On January 12, 1981 Janice Osborne filed a complaint for divorce in the District Court of the Ninth Judicial District and, in response, the petitioner filed an answer and counterclaim. Both the complaint and petitioner's counterclaim asked the court to grant a just and equitable division of the property and debts. On April 3, 1981, the parties entered into a written agreement which provided for a division of the property and debts and for the custody and support of the minor children.[2] Consistent with the terms of this agreement, Mr. Osborne, the petitioner here, stipulated to a withdrawal of his answer and counterclaim and consented that the court hear the matter as on default.
At a hearing on the plaintiff's complaint on May 14, 1981, the district judge refused to accept the property agreement and permitted the complainant Janice Osborne to testify even though the petitioner Larry Osborne, in compliance with his agreement under the stipulation, was not present. Based on the evidence at the ex parte hearing, the district judge caused a decree of divorce to be entered on January 25, 1982. This decree granted the parties a divorce and maintained the custody and support as outlined in the prior agreement, but substantially changed the division of property and debts from the agreement which had previously been entered into by the Osbornes. The court provided in the decree that Mr. Osborne could file a motion requesting a new hearing on the property distribution if he was not satisfied with the disposition made by the judge.
On February 2, 1982 the petitioner did file a motion requesting a trial on the property settlement question. This motion was granted by the court on March 18, 1982 and a trial date was set for May 12, 1982. On March 26, 1982 the petitioner filed a motion for change of judge under the auspices of Rule 40.1(b)(1), W.R.C.P., and he orally repeated this motion on May 12, 1982. The district court denied the motion in an order filed June 3, 1982. The judge represented that he was denying the motion because, in his view, the issues scheduled to be heard on May 12, 1982 were the same as those before the court on May 14, 1981 and the petitioner's motion for change of judge therefore should have been made prior to May 14, 1981. This denial formulates the basis of the present petition for a writ of prohibition.
THE RULE 40.1(b)(1) MOTION
Rule 40.1(b)(1), W.R.C.P. gives a litigant the right to peremptorily challenge a district judge and identifies three deadlines by which a motion for change of judge must be made. The motion must be made (1) at least 15 days before the date set for any hearing on a motion made pursuant to various rules; (2) 15 days before the date set for a pretrial if no motion hearing as outlined above is applicable; or (3) 15 days before the date set for trial if the conditions outlined in numbers (1) or (2) are not applicable.[3] See: Rule 40.1(b)(1), supra n. 1. The rule also directs that when a motion for change of judge is filed the presiding judge shall forthwith call in another judge to try the action. In these proceedings we are concerned with the latter time period because, prior to the filing of the motion for a change of judge, there had been no hearing *127 on any of the delineated motions and there had been no pretrial hearing. Thus, the only question for our review is whether the petitioner properly filed his motion 15 days prior to the date set for trial.
Mr. Osborne urges that the district judge, through the March 18, 1982 order, set the trial date for May 12, 1982, and his motion for change of judge was timely because the 26th of March is more than 15 days before May 12, 1982. He goes on to conclude that since the motion was timely, the judge, according to Rule 40.1(b)(1), was obligated by law to call on another district judge to hear the matter. The real party in interest, Janice Osborne, and the district judge respond to petitioner's contention by arguing that the motion for a change was untimely since the issues to be tried on May 12, 1982 were the same as those which were before the court on May 14, 1981. So, say the respondents, a "trial" on the property settlement had already occurred and the May 12, 1982 setting was merely an ancillary proceeding or continuation of the May 14, 1981 hearing. They conclude that the motion for change of judge, to be timely, should have been filed within at least 15 days of the May 14, 1981 date.
Although this court has not heretofore considered this question, we have developed a body of case law having to do with the filing of motions for change of judge. First of all, it is well established that once a proper motion for change of judge has been filed, the district judge concerning whom the motion is made is divested of all jurisdiction except for residual authority to assign the case to another district judge. Meyer v. Meyer, Wyo., 538 P.2d 293 (1975); Barbour v. Barbour, Wyo., 518 P.2d 12 (1974); State v. District Court of Sheridan County, Wyo., 389 P.2d 921 (1964). Rule 40.1(b)(1), W.R.C.P., supra n. 1, codifies this case rule by providing:
"After the filing of such motion, the presiding judge shall forthwith call in another district judge to try the action."
Also, we have held that the time limitations now embodied in Rule 40.1(b)(1) are requirements of substance rather than form and they will be strictly enforced. Barbour v. Barbour, supra, 518 P.2d at 13. However, with respect to the 15-day requirement, we have said:
"Even if the computation were otherwise, a trial judge may not by short notice deprive a party in a proper case from disqualifying him to preside. In this case, if the plaintiff's motion for change of judge is not timely, so must also the court's notice of trial be insufficient, both of which were filed on the same day. It would have been impossible for the plaintiff to move with more haste. This does not mean a court may not set a trial on less than 15 days' notice; it only means that if a court should do so, a party will not thereby have taken away from him the right to disqualify the trial judge." (Emphasis added.) Meyer v. Meyer, supra, 538 P.2d at 294.[4]
Finally, we have said that a party cannot utilize a motion to change a judge as a means of picking and choosing between judges after he or she is given an impression of the court's view on the matter in dispute.
"Although it is our view that no litigant can reasonably or equitably pick and choose his judge after the start of any hearing on a contested matter or pretrial proceeding, * * *." State ex rel. Johnston v. District Court of Platte County, Wyo., 495 P.2d 255, 256 (1972).
Taking the above authorities into account, we are of the opinion that a resolution of this appeal depends upon whether or not the May 14, 1981 proceeding was a "trial." Ancillary to this query is the question which asks whether or not petitioner Osborne was ever given an opportunity to file a motion for change of judge. We hold that the May 14, 1981 proceeding was not a *128 "trial" as that term is contemplated by Rule 40.1(b)(1), and, therefore, petitioner's March 26, 1982 motion for change of judge was timely filed and should have been granted.
We have said that
"* * * the term `trial' contemplates the final disposition of the controversy, either on the facts or on a question of law."
Griggs v. Meek, 37 Wyo. 282, 261 P. 126, 129 (1927). Likewise, the burden of what was said in State ex rel. Johnston v. District Court of Platte County, supra, is that the term "trial," as utilized in former Rule 40.1(b), contemplates a resolution of the controversy on the merits. Thus, we were constrained to hold in that case that a hearing on a motion for preliminary injunction was not a "trial" to which the right to seek a change of judge would attach.[5] Other courts have also concluded that the term "trial" refers to some form of controversy or dispute that has been placed in issue and resolved according to law following a hearing on the merits. Gulf Oil Corporation v. McManus, 173 Ind. App. 147, 363 N.E.2d 223, 225 (1977); In re Marriage of Beilock, 81 Cal. App.3d 713, 146 Cal. Rptr. 675, 679 (1978). It has been said that a "trial" is a contest held just once between well-prepared adversaries of roughly equal strength. People v. Tribbett, 90 Ill. App.2d 296, 232 N.E.2d 523, 526 (1967). Simply stated, we hold that the term "trial," as utilized in Rule 40.1(b)(1), is intended to encompass those proceedings before a proper tribunal whereby two or more adversaries present factual or legal issues that are resolved after a full hearing on the merits.
With the above in mind, we cannot conclude, as the real party in interest and the district judge urge, that the May 14, 1981 proceeding was a trial. We say this because the facts clearly reflect that prior to that proceeding the parties had agreed to a settlement and the petitioner did not appear due to the fact that he was complying with his agreement with opposing counsel. In truth, it was understood by the parties that no disputed issues were to be presented for the district judge's review. Not until the district judge himself decided to reject the property settlement did a dispute arise, and, therefore, this action, which was never within the contemplation of the parties, should not be allowed to change an essentially nonadversarial proceeding into a "trial." Particularly is this true when it is recorded that one of the parties had agreed that he would not appear, all in accord with the stipulation between the contending litigants.
A similar conclusion was reached in Doty v. Doty, 52 Cal. App.3d 672, 125 Cal. Rptr. 153 (1975), where the court held that a motion for change of judge was timely even though the judge had previously issued several orders. The holding was bottomed in the proposition that the prior orders arose out of ex parte application or as a result of stipulation between the parties. Thus, the court determined that no hearing on a contested matter had been held prior to the filing of the motion for change of judge. The case of Schmid v. Miller, Alaska, 619 P.2d 1 (1980) is also instructive. In that case, a party filed a motion for change of judge after the judge had issued a temporary restraining order. In holding that the motion was timely, the court relied upon the fact that the parties had stipulated to the restraining order, and, in these circumstances, the hearing on the restraining order did not constitute a contested matter.
The facts in the instant case support a conclusion that the May 14, 1981 hearing was not intended to be a contested hearing on the issues and therefore the district judge, upon rejecting the property settlement, should have ended the proceeding and set a new date for the parties to present their respective positions. In other words, the court could not make the May 14, 1981 proceeding into a trial as contemplated by Rule 40.1(b)(1) simply by taking the testimony of the real party in interest and rendering a judgment thereon.
*129 It is fair to say that our underlying concern is the spawning of a rule which would permit the trial judge to preclude a party from ever asserting his or her right to exercise a proper peremptory challenge. In this case, petitioner had no reason or real opportunity to consider asserting his rights, as provided by Rule 40.1(b)(1), prior to the May 14, 1981 hearing. At that point, he was relying upon the agreement he had entered into with Janice Osborne and had no reason to suspect that the district court would reject its terms. On the other hand, and immediately upon the filing of the decree of divorce, petitioner went through the steps necessary to assert and preserve his right to file a Rule 40.1(b)(1) motion. He was not attempting to pick and choose his way to a favorable result but was, on the other hand, simply exercising his right to peremptorily challenge the judge assigned to preside at the upcoming trial on the property settlement. As was stated in Newsom v. Superior Court, 102 Ariz. 95, 425 P.2d 422, 423 (1967):
"Whether an affidavit of bias and prejudice is timely filed depends upon the law of waiver and before one can be said to have waived the right, he must first have had an opportunity to exercise it." (Emphasis added.)
We feel that petitioner's first opportunity to file a Rule 40.1(b)(1) motion occurred within the time prior to the trial which was set to be heard on May 12, 1982. Since his motion was filed within at least 15 days before that date, it was timely and should have been granted.
We hold that the trial judge erroneously denied petitioner's motion for change of judge and we will grant the writ of prohibition pursuant to the powers vested in this court by Art. 5, § 3 of the Wyoming Constitution.[6] We will only exercise our power to issue a writ of prohibition in those circumstances where the trial court seeks to act without subject matter jurisdiction, or where the trial court attempts to exceed the scope of its jurisdiction although having jurisdiction over the subject matter, State ex rel. Weber v. Municipal Court, Wyo., 567 P.2d 698 (1977); State ex rel. Sheehan v. District Court of Fourth Judicial District Wyo., 426 P.2d 431 (1967), and only in circumstances where the petitioner has no other plain, speedy and adequate remedy. State ex rel. Frederick v. District Court, Wyo., 399 P.2d 583, 12 A.L.R.3d 1 (1965).
Under the circumstances of this case, the Alternate Writ of Prohibition issued on July 26, 1982 should be made permanent.
Writ of prohibition granted.
ROONEY, Justice, dissenting, with whom RAPER, Justice, joins.
To me, the majority opinion results in a definite "pick and choose" of a trial judge and this after the judge has indicated some position relative to the divorce case. Such is improper. See quotation in the majority opinion from State ex rel. Johnston v. District Court of Platte County, Wyo., 495 P.2d 255, 256 (1972).
The result reached by the majority opinion in this case confirms my belief that the federal requirements for disqualifying of a judge is better than ours.[1] We should change our rule to accomplish the federal standards.
But even under our present rule, the time had passed in this divorce case in which the judge could be peremptorily disqualified. The majority opinion does not recognize the fact that a trial had taken place. It had. Section 20-2-104, W.S. 1977, provides that:
*130 "A divorce may be decreed by the district court of the county in which either party resides on the complaint of the aggrieved party on the grounds of irreconcilable differences in the marital relationship." (Emphasis added.)
The decree must be based upon the determination that the required grounds exist. Section 20-2-114, W.S. 1977, provides in pertinent part:
"In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired, and the burdens imposed upon the property for the benefit of either party and children. * * *" (Emphasis added.)
It is the court that must make the disposition of the property, and it is the court that must decide that which is "just and equitable" with reference thereto. The parties cannot bind the court by a property settlement agreement. They must know that any property settlement agreement must appear just and equitable to the court and this only after the court examines the evidence relative to the factors set forth in the foregoing quotation.
"Actions * * * for a divorce, shall be conducted in the same manner as civil actions * * *." Section 20-2-108, W.S. 1977.
The divorce decree with which we are here concerned reflects that when the matter came before the court, it "heard the evidence adduced on behalf of the Plaintiff."[2] After the decree was entered, defendant filed a "Combined Motions for New Trial, Amendment of Judgment, Relief from Judgment and Order, and Modification of Decree," (emphasis added). In it defendant refers to the evidence "received at the trial" and prays for, among other things, a "new trial." Certainly, defendant recognized the fact that a trial was held.
It was after the court granted defendant's motion for a new trial that defendant sought to peremptorily disqualify the judge. The language of Rule 40.1(b)(1), W.R.C.P., is plain in limiting the time for a peremptory disqualification to a time "at least fifteen (15) days before the date set for trial." An effort to so disqualify a judge after a trial, even if a motion for a new trial has been granted, is out of time.
I would deny the Petition for Writ of Prohibition.
NOTES
[1] Rule 40.1(b)(1), W.R.C.P., as then in effect provided:
"(b) Change of judge.
(1) Peremptory Disqualification. A party may peremptorily disqualify a district judge by filing a motion requesting a change of judge. The motion must be filed at least fifteen (15) days before the date set for the hearing on any motion or application filed pursuant to Rule 12, 42, 56, 65, 71.1, or 72.1, or if there be no such motion hearing set, then at least fifteen (15) days before the date set for pretrial, and if there be no pretrial set, then at least fifteen (15) days before the date set for trial, or if the date is set within fifteen (15) days after the order of setting, within five (5) days after receipt of such order; provided, however, that no more than one (1) such motion shall be filed by the parties plaintiff or parties defendant. After the filing of such motion, the presiding judge shall forthwith call in another district judge to try the action."
The language of Rule 40.1(b)(1) was amended January 25, 1982 (effective date May 1, 1982) but is not applicable to the present dispute. The substance of the rule was not changed and we deem the result reached in this case to be applicable to the amended version of Rule 40.1(b)(1) W.R.C.P.
[2] It was agreed by the parties that the custody of the children would remain with Janice Osborne and that Larry Osborne would contribute to their support in the amount of $150.00 monthly per child.
[3] The rule provides that if the trial date is less than 15 days after the date of the order setting the same, the litigant has five days after receipt of such order to file his motion.
[4] It should be noted that the issue with which we were concerned in Meyer v. Meyer is now covered by the language of Rule 40.1(b)(1) which permits a party to seek a change of judge within five days of receiving an order that sets a trial date within less than 15 days from the issuance of the order. See: Rule 40.1(b)(1), supra n. 1.
[5] Clearly, under the present version of Rule 40.1(b)(1), a preliminary injunction is one of the motions delineated before which a party must file his motion for change of judge within at least 15 days of the date set for hearing on the motion.
[6] Article 5, § 3 of the Wyoming Constitution provides:
"The supreme court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of a person held in actual custody, and may make such writs returnable before himself or before the supreme court, or before any district court of the state or any judge thereof."
[1] See 28 U.S.C.A. § 455 which requires cause as a basis for disqualification.
[2] Defendant did not appear in person or by counsel.
|
607 F.Supp. 1361 (1985)
UNI-BOND, LTD., Plaintiff,
v.
Leonard SCHULTZ, d/b/a the "Schultz Group", Defendant.
No. 83-C-907.
United States District Court, E.D. Wisconsin.
May 2, 1985.
*1362 Ross A. Anderson, Milwaukee, Wis., for plaintiff.
Jeffrey Clark, Milwaukee, Wis., for defendant.
DECISION AND ORDER
WARREN, District Judge.
Presently before the Court are the plaintiff's motion to remand this matter to the state court in which the complaint was initially filed, pursuant to 28 U.S.C. § 1447(c), and the defendant's motion to dismiss the action in toto for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. The Court, having reviewed the legal memoranda submitted by the parties and considered the opposing positions articulated therein, concludes, for the reasons set forth below, that the motion to remand must be denied and the motion to dismiss granted.
BACKGROUND
This action was initiated on April 28, 1983, when the plaintiff filed its complaint in the Wisconsin Circuit Court for Milwaukee County, claiming certain damages allegedly arising out of the breach of a written contract entered into by the parties. According to the terms of that contract, executed on or about April 30, 1980, the plaintiff agreed to pay the sum of $250,000.00 plus a royalty of 7% of the gross selling price to purchase a certain chemical formula developed and owned by the defendant. That formula was for a polymer or pre-polymer construction material to be used as a building alternative for concrete and asphalt.
The contract further provided that the plaintiff pay an initial $50,000.00 installment within 21 days of the date of execution and the balance of $200,000.00 in twelve equal quarterly installments, beginning either one year after the first sale of the construction material or eighteen months after execution of the contract, whichever came first. The defendant purportedly agreed to deliver the formula to the plaintiff upon receipt of the initial $50,000.00 payment. However, according to the central factual averment in the complaint, the defendant failed to deliver the chemical formula as promised, despite the plaintiff's payment of the initial installment on or about May 21, 1980.
The two principal causes of action are based on theories of breach of contract, pursuant to which the plaintiff claims damages in the amount of $75,000.00, and fraudulent conversion that is, that the defendant allegedly failed to return the $50,000.00 installment despite the plaintiff's request for repayment. With respect to this count, the plaintiff seeks $50,000.00 in compensatory *1363 damages and an amount not to exceed $250,000.00 in punitive damages.
In the alternative, the complaint states causes of action for intentional and negligent misrepresentation and misrepresentation giving rise to strict liability; these claims are premised on the defendant's purportedly false representation that he had developed and did possess a commercially usable chemical formula for a polymer or pre-polymer building material. By each of these alternative counts, the plaintiff seeks $75,000.00 in compensatory damages plus punitive damages in an amount not to exceed $250,000.00.
Upon the defendant's petition of July 18, 1983, this action was removed to the United States District Court for the Eastern District of Wisconsin, pursuant to 28 U.S.C. §§ 1441 & 1446. Invoking the Court's diversity jurisdiction, as established under 28 U.S.C. § 1332(a)(1), the defendant alleged in its removal petition that the parties to this action are citizens of different states and that the matter in controversy exceeds the sum or value of $10,000.00, exclusive of interest and costs. Accompanying the defendant's petition was an appropriate bond, insuring, pursuant to 28 U.S.C. § 1446(d), that the defendant will pay all expenses attendant upon the removal proceedings if it is determined that the case is not removable or was improperly removed.
Three days later, on July 21, 1983, the defendant filed its motion to dismiss the complaint for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Invoking the well-established principle that a nonresident defendant must have sufficient minimum contacts with a forum state as a condition precedent to the exercise of personal jurisdiction over it, the movant maintains that he does not have the requisite relationship with the State of Wisconsin for purposes of the present action and, accordingly, that the complaint against him must be dismissed. The defendant further contends that both the relevant analysis and the result articulated by the Court of Appeals for the Seventh Circuit in Lakeside Bridge & Steel Company v. Mountain State Construction Company, 597 F.2d 596 (7th Cir.1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980), compel a finding of lack of personal jurisdiction under the particular circumstances of this lawsuit.
By its responsive memorandum of November 8, 1983, the plaintiff contends that the propriety of this Court's exercise of personal jurisdiction is plainly established under both the relevant provisions of Wisconsin's long-arm statute, Wis.Stat. § 801.05(5) (1977), and generally-accepted constitutional principles as applied to the particular facts of this case. As to the former, the plaintiff argues that, pursuant to the unequivocal terms of the parties' contract, the defendant engaged in a "single act" that effectively makes him subject to the jurisdiction of the courts of this state. Wis.Stat. § 801.05(5) (1977). Observing that compliance with the statutory requirements for the exercise of personal jurisdiction under Wis.Stat. § 801.05(5) gives rise to a presumption that constitutional due process considerations have likewise been satisfied, the plaintiff nonetheless characterizes the defendant's contacts with the State of Wisconsin as sufficient to meet any constitutional challenge to the exercise of jurisdiction over this nonresident party.
Those contacts are clearly established by the very nature of the continuing relationship envisioned by the contract between the parties, pursuant to which all significant developments in the project were to be accomplished in Wisconsin, and, significantly, by the appearance in the state of one of the defendant's representatives for the purpose of exhibition and presentation of the chemical formula, or so the argument goes. Citing Wisconsin Electrical Manufacturing Company v. Pennant Products, Inc., 619 F.2d 676 (7th Cir.1980), the plaintiff contends that dismissal of the complaint would prove wholly unjustified under these facts and that the authority cited by the defendant in support of his position is entirely distinguishable.
*1364 Predictably, the movant argues in reply that the circumstances under which one of his representatives appeared in the state do not support the exercise of personal jurisdiction; that the nature of the continuing, contractual relationship between the parties, including the exchange of telephone calls and correspondence in interstate commerce, does not satisfy the requirements of due process as established by the Fourteenth Amendment to the United States Constitution; and that it is the caselaw invoked by the plaintiff that is, in fact, inapposite.
In the midst of the parties' briefing of the motion to dismiss, the plaintiff, on July 27, 1983, moved to remand this action to the state court in which it was initiated, pursuant to 28 U.S.C. § 1447(c). In support of its petition, the plaintiff explains that this lawsuit was commenced on April 28, 1983, that personal service on the defendant was unsuccessfully attempted through a process server in the State of Michigan, but that service was eventually accomplished by mailing the summons and complaint to the defendant on June 9, 1983, and publishing the summons as a Class 3 notice in The Detroit Legal News on June 15, June 22, & June 29, 1983. The plaintiff further recounts the nature of a conversation its attorney had with defense counsel on June 21, 1983, during the course of which counsel indicated that his client had received the summons and complaint. Invoking the unequivocal requirement of 28 U.S.C. § 1446(b) that a petition for removal from state to federal court must be filed within 30 days after receipt of those documents, the movant observes, first, that the present petition was filed some 39 days after the summons and complaint were mailed on June 9, 1983, and, second, that those materials were presumptively received by the defendant three days thereafter. It is the plaintiff's final position that unless the defendant can demonstrate receipt of process on or after June 18, 1983, the petition for removal must be dismissed as untimely and the case remanded back to the Wisconsin Circuit Court for Milwaukee County.
By its responsive brief of November 3, 1983, the defendant maintains simply that he did, in fact, receive the summons and complaint in this action on June 18, 1983, nine days after mailing. In this context, the defendant further disputes the movant's description of presumptive receipt within three days as unsupported in the relevant, federal procedural law. The defendant concludes simply that remand would be inappropriate since the removal petition was, indeed, filed with the federal district court within thirty days of receipt of process, as prescribed by 28 U.S.C. § 1446(b).
Because the Court views the plaintiff's challenge to the propriety of removal as a threshold jurisdictional matter, the Court will dispose of it prior to addressing the merits of the parties' opposing positions with respect to the exercise of personal jurisdiction over the nonresident defendant.
THE PLAINTIFF'S MOTION TO REMAND PURSUANT TO 28 U.S.C. § 1447(c)
As both parties to this action recognize, the federal trial court is empowered to remand any matter to the state court from which it was removed "[i]f at anytime before final judgment it appears that the case was removed improvidently and without jurisdiction...." 28 U.S.C. § 1447(c). It is well established that, in determining whether an action is improvidently removed, the Court must consider the timeliness of the removal petition under 28 U.S.C. § 1446(b). Royal v. State Farm Fire & Casualty Company, 685 F.2d 124, 127 (5th Cir.1982); London v. United States Fire Insurance Company, 531 F.2d 257, 259-269 (5th Cir.1976).
Subsection (b) of 28 U.S.C. § 1446 provides, in its entirety, as follows:
The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or *1365 within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
As already noted, the plaintiff's procedural challenge in this action is that the case was "improvidently" removed from state court, since the removal petition was filed more than 30 days after the defendant's receipt of the summons and complaint. The argument is premised on the belief that the defendant must have received process on some date prior to June 18, 1983.
However, by his affidavit of November 3, 1983, the defendant clearly states that, "[o]n June 18, 1983, [he] found in his Post Office Box an envelope bearing a postal date of June 9, 1983, in which envelope [he] found a summons and complaint in [this case]...." Affidavit of Leonard Schultz at 1-2 (October 31, 1983). Pursuant to 28 U.S.C. § 1446(b), the defendant was thereafter afforded a period of time up to and including July 18, 1983, in which to file a petition for removal a petition that was, indeed, timely filed on that date.
There is nothing in the record including the affidavit of plaintiff's attorney, Ross A. Anderson, testifying to both the manner in which service was effected and the substance of a subsequent phone conversation with the defendant's attorney, and that of former defense counsel Michael C. Hechtman, largely confirming the procedural history of the initial stages of this litigation to suggest that the defendant received process on any date prior to June 18, 1983. The mere fact that some nine days passed between the time of mailing and the defendant's receipt of the summons and complaint does not support a contrary conclusion. In this context, the Court notes, if only parenthetically, its agreement with the defendant that neither Wis.Stat. § 801.15(5) (1977) nor Rule 6(e) of the Federal Rules of Civil Procedure establishes a presumptive date of receipt within three days of mailing for purposes of this federal lawsuit.
Because the Court concludes, for the reasons articulated, that the defendant's petition for removal was filed in a timely fashion on July 18, 1983, the plaintiff's motion to remand this matter to the Wisconsin Circuit Court for Milwaukee County, pursuant to 28 U.S.C. § 1447(c), must be denied.
THE DEFENDANT'S MOTION TO DISMISS PURSUANT TO RULE 12(b) (2) OF THE FEDERAL RULES OF CIVIL PROCEDURE
As the Court's preliminary remarks, supra at 1363-1364, suggest, this case joins what the Seventh Circuit has recently described as "a long list of cases that have presented personal jurisdiction, minimum contacts, and due process issues regarding the permissible constitutional reach of state long-arm statutes." Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214, 215 (7th Cir.1985). When such issues are raised in the context of a motion to dismiss, the trial court routinely begins its analysis with the language of the relevant long-arm statute itself; the Wisconsin statute, Wis. Stat. § 801.05(5) (1977), provides, in relevant part, as follows:
A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under any of the following circumstances:
(5) Local Services, goods or contracts. In any action which:
(a) Arises out of a promise, made anywhere to the plaintiff or to some 3rd party for the plaintiff's benefit, by the defendant to perform services within this state or to pay for services to be performed in this state by the plaintiff; or
(b) Arises out of services actually performed for the plaintiff by the defendant within this state, or services actually performed for the defendant by the plaintiff within this state if such performance within this state was authorized or ratified by the defendant; or
(c) Arises out of a promise, made anywhere to the plaintiff or to some 3rd party for the plaintiff's benefit, by the defendant to deliver or receive within *1366 this state or to ship from this state goods, documents of title, or other things of value....
The plaintiff contends and the defendant apparently concedes that the particular facts of the present action fall neatly within the three, jurisdictional subsections of Wis.Stat. § 801.05(5) (1977), set forth above. Paralleling the language of subsection (a), it is clear that the defendant contracted to sell a certain chemical formula to the plaintiff for $250,000.00; the plaintiff, in turn, performed its preliminary obligation under that contract by providing the initial $50,000.00 installment payment. Consistent with subsection (b) of the statute, the defendant, pursuant to the terms of the subject contract, agreed to deliver the chemical formula to the plaintiff upon receipt of the initial installment. The only apparent obstacle to invocation of this provision is, as the complaint sets forth, that the plaintiff never actually received that formula. Finally, in conformity with the jurisdictional prerequisites established in subsection (c), it is clear that the contract for the purchase and sale of the chemical formula involved a product of considerable value to the parties; among other things, the plaintiff intended to use it in a process for the manufacture of a construction material, and the defendant was to receive royalties on the gross selling price of the finished product.
Based on this preliminary analysis, the Court concludes that the plaintiff has met its initial burden of establishing the Court's personal jurisdiction over the defendant under Wisconsin's long-arm statute, Wis.Stat. § 801.05(5) (1977). In turn, since § 801.05 was drafted as a codification of those minimum contacts sufficient to comport with a nonresident party's right to due process under the Fourteenth Amendment to the United States Constitution, compliance with the statute raises a presumption of compliance with the minimal requirements of due process. Schmitz v. Hunter Machinery Company, 89 Wis.2d 388, 403, 279 N.W.2d 172, 179 (1979); Stevens v. White Motor Corporation, 77 Wis.2d 64, 70, 252 N.W.2d 88, 91 (1977).
At the same time, that presumption may be rebutted by analyzing the position of an out-of-state defendant under five, well-established touchstones namely, the quantity of the party's contacts with the state, the nature and quality of those contacts, the source and cause of the action, the interest of the state in the lawsuit, and the convenience of the parties in trying the matter in this forum. Vermont Yogurt Company v. Blanke Baer Fruit and Flavor Company, 107 Wis.2d 603, 608, 321 N.W.2d 315, 318 (1982); Lincoln v. Seawright, 104 Wis.2d 4, 11, 310 N.W.2d 596, 599 (1981). Stated differently, to obtain personal jurisdiction over a nonresident litigant, extraterritorial service of process must satisfy both the requirements of the state long-arm statute and the significant, constitutional constraints of the due process clause. Brunswick Corporation v. Suzuki Motor Company, Ltd., 575 F.Supp. 1412, 1417 (E.D.Wis.1983); Jadair, Inc. v. Walt Keeler Company, Inc., 508 F.Supp. 879, 880-881 (E.D.Wis.1981), aff'd, 679 F.2d 131 (7th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 258, 74 L.Ed.2d 201 (1982).
It is undisputed that that clause of the Fourteenth Amendment demands "such contacts of the [defendant] with the state of the forum as make it reasonable, in the context of our federal system of government, to require the [defendant] to defend the particular suit which is brought there.... [D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he has certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Company v. State of Washington, 326 U.S. 310, 317, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958), the United States Supreme Court provided this gloss on the due *1367 process implications of personal jurisdiction over nonresident defendants:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some acts by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.
See also Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977) (noting that "the relationship among the defendant, the forum, and the litigation" is "the central concern of the inquiry into personal jurisdiction").
In World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Supreme Court explored further the significance of the due process clause with respect to the exercise of personal jurisdiction over a nonresident party. In that case, the Court refused to recognize the personal jurisdiction of an Oklahoma tribunal over a New York automobile wholesaler and retailer doing business only in the New York area. Writing for the Court, Justice White described the significant purpose of constitutional limitations on personal jurisdiction this way:
The concept of minimum contacts ... can be seen to perform two related, but distinguishable functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 291-292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). Justice White's observations were perhaps most recently underscored in United States v. Morton, ___ U.S. ___, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984), where Justice Stevens, writing for the court, reaffirmed that
personal jurisdiction protects the individual interest that is implicated when a nonresident defendant is haled into a distant and possibly inconvenient forum [citation omitted]. The strength of this interest in a particular case cannot be ascertained from the "face" of the process; it can be determined only by evaluating a specific aggregation of facts, as well as the possible vagaries of the law of the forum, and then determining if the relationship between the defendant ... and the forum, or possibly the particular controversy, makes it reasonable to expect the defendant to defend the action that has been filed in the forum state.
United States v. Morton, ___ U.S. ___, ___, 104 S.Ct. 2769, 2773-2774, 81 L.Ed.2d 680, 688 (1984); see also Insurance Corporation of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) ("The personal jurisdiction requirement recognizes and protects an individual liberty interest").
The Court of Appeals for the Seventh Circuit has itself, in recent years and in several contexts, wrestled with the considerable problems attendant upon application of the "minimum contacts" test to challenges to the exercise of personal jurisdiction. In what has become a seminal case in this area, Lakeside Bridge & Steel Company v. Mountain State Construction Company, Inc., 597 F.2d 596 (7th Cir.1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980), the court determined that a nonresident's order for goods from a Wisconsin plaintiff, coupled with that party's knowledge that those goods would likely be manufactured in and shipped from Wisconsin, was not sufficient for due process purposes to permit the trial court to exercise personal jurisdiction. In reaching this conclusion, the Seventh Circuit noted, at the outset, that
Lakeside's cause of action is not one entirely "arising from these [in-state] effects," *1368 in the words of § 50 of the Restatement [(Second), Conflict of Laws § 50 (1971)]. It arises in part at least from events that occurred in West Virginia and Virginia.
More important from the standpoint of the Restatement analysis, in view of the fact that the events in Wisconsin were not "of a sort highly dangerous to persons or things," is the complete absence of "other relationships" between Mountain State and Wisconsin. It is the presence or absence of these other relationships upon which the state's right to "exercise jurisdiction over the defendant is likely to depend at least in part." Restatement, supra, § 37, Comment a.
When only the plaintiff has relationships to the forum state and the parties are business corporations engaged in a commercial contract dispute, another important factor comes into play, one which the Restatement comment calls "the best interests of the international and interstate systems." This factor is based on the proposition that "[a] state should not improperly impinge upon the interests of other states by trying in its courts a case with which it has no adequate relationship." Restatement, supra, § 24, Comment b.
Viewed realistically, the contacts with Wisconsin in this case consist solely of "[t]he unilateral activity of [one] who claim[s] some relationship with a nonresident defendant," and this "cannot satisfy the requirement of contact with the forum State" [citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)].
Lakeside Bridge & Steel Company v. Mountain State Construction Company, 597 F.2d 596, 603 (7th Cir.1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980). As explained, supra at 1363, the defendant finds principal support for its motion to dismiss in both the analysis and result articulated by the Seventh Circuit in this seminal case.
Just one year later, however, in Wisconsin Electrical Manufacturing Company, Inc. v. Pennant Products, Inc., 619 F.2d 676 (7th Cir.1980), the Court of Appeals found occasion to distinguish Lakeside in an action in which a New York corporation with its sole place of business in New York challenged the trial court's personal jurisdiction in a contract action initiated by a Wisconsin corporation. The circuit court explained its conclusion this way:
The significant contacts of the out-of-state buyer with the forum state that are present here but absent in Lakeside are visits by the buyers' agents to Wisconsin in connection with the business on which the claim is based....
The two visits by agents of the defendant to Wisconsin are enough, in our opinion, to distinguish this case from Lakeside. ... Satisfied here is the requirement that the defendant, not merely the plaintiff, conduct activities in the forum state which in a contract case must relate to the formation or performance of the contract. The visits by Pennant's agents to be the forum state, first during negotiations to determine, by inspecting WEM's facilities there, whether it would be able to perform the contract, and later, while the contract was being performed, to negotiate with WEM about performance, were not merely matters of convenience, ... but rather were significant in the formation of the contract and Pennant's efforts to have it satisfactorily performed [citations omitted].
Wisconsin Electrical Manufacturing Company, Inc. v. Pennant Products, Inc., 619 F.2d 676, 677-678 (7th Cir.1980); see also Nieman v. Rudolf Wolff & Company, Ltd., 619 F.2d 1189 (7th Cir.), cert. denied, 449 U.S. 920, 101 S.Ct. 319, 66 L.Ed.2d 148 (1980) (issued on the same day as Pennant Products and holding that a defendant's meeting with the plaintiff in the forum state to solicit business and negotiate the subject contract likewise distinguishes Lakeside and authorizes personal jurisdiction). Not surprisingly, the plaintiff maintains, as indicated supra at 1363, that the circumstances of the present case are more akin to those presented to the Court of *1369 Appeals in Pennant Products than in Lakeside.
In just the past several months, the Seventh Circuit has further complicated the already rugged landscape of due process-"minimum contacts" authority with its decisions in Madison Consulting Group v. State of South Carolina, 752 F.2d 1193 (7th Cir.1985), and Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214 (7th Cir.1985). In the former, Judge Flaum, having chronicled the colorful treatment of the personal jurisdiction issue by the federal appellate courts, concluded that the exercise of jurisdiction over a nonresident defendant who initiated certain contract negotiations with a plaintiff by phone call through its counsel, thereby inducing the plaintiff's partner to travel across the country to discuss further certain commercial prospects, does not offend well-established principles of due process. In so ruling, Judge Flaum found compelling the fact that the nonresident defendant had undertaken considerable efforts to solicit the subject contract, as follows:
... By so actively reaching out to solicit the services of a Wisconsin partnership in connection with this contract, we conclude that defendants have purposefully established contacts with Wisconsin that easily satisfy the dictates of constitutional due process.
Unlike the district court, we do not deem defendants' solicitation efforts as comparable to the defendant's mere act of ordering goods from a foreign corporation in Lakeside. In commercial transactions, the actual ordering of goods like the signing and execution of a contract is often no more than the final link in a long transactional chain connecting the parties, and thus might not be considered an adequate commercial contact in itself to establish personal jurisdiction [citation omitted]. Nevertheless, when a defendant is responsible for initiating several significant links with the forum plaintiff leading to the transaction at issue, this is sufficient to satisfy the Fourteenth Amendment.
Madison Consulting Group v. State of South Carolina, 752 F.2d 1193, 1203 (7th Cir.1985). The Court of Appeals also found relevant, though not dispositive, the plaintiff's performance of the contract in Wisconsin something clearly contemplated by the parties at the time of contracting and the considerable inconvenience that might accrue to the plaintiff if it were compelled to pursue the action in another forum.
Finally, in what is surely its most recent bout with this troublesome issue, the Seventh Circuit, in Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214, 216 (7th Cir. 1985), upheld the trial court's dismissal of a complaint for breach of warranty and recission of a sales contract on the basis that personal jurisdiction could not properly be exercised over the nonresident defendant. Invoking the "solicitation" test articulated some three months earlier in Madison Consulting Group v. State of South Carolina, 752 F.2d 1193 (7th Cir.1985), Judge Evans concluded that the nonresident defendant
did not purposely avail himself of the privilege of doing business in Indiana and thus did not invoke the benefits and protections of that forum's laws. To make [defendant] Schupbach susceptible to suit in Indiana we believe he would have had to knowingly solicit (in more than a general way) the sale there. Had he done so, his voluntary action would have been calculated to have an effect in Indiana. In such a situation, due process would not be offended by requiring him to go to Indiana and defend himself if the sale turned sour.
Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214, 216-17 (7th Cir.1985). The Court is inclined to sepculate that, if the parties to the present action were afforded an opportunity for additional briefing, the plaintiff would describe the present case in terms characteristic of the Court of Appeals' opinion in Madison Consulting Group, while the defendant and present movant would align itself with the result announced in Hall's Specialties. Indeed, if the discussion now completed teaches any lesson at all, it is that this area of the law remains highly unsettled and that the absence *1370 of any clear, intelligible principles presages even more disagreement among federal courts as to the proper import of the due process "minimum contacts" concept. See, e.g., Madison Consulting Group v. State of South Carolina, 752 F.2d 1193, 1205-1210 (7th Cir.1985) (Swygert, J., concurring in the result, but arguing, among other things, that Lakeside should be overruled); Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214, 216-18 (7th Cir.1985) (Flaum, J., dissenting to "an overly narrow and technical construction of the `minimum contacts' test").
Despite this apparent disarray in the present state of the law, the Court concludes that the circumstances of the present case are more analogous to the facts in Lakeside and its progeny than those of Pennant Products and the cases finding sufficient contacts for the proper exercise of personal jurisdiction. By his own testimony, defendant Schultz affirms that he "has never traveled to the State of Wisconsin and has not conducted any activities within the State of Wisconsin in connection with the events or transactions giving rise to this lawsuit." Affidavit of Leonard Schultz at 1 (July 20, 1983). The plaintiff, however, finds considerable significance in the fact that one of the defendant's representatives namely, Marvin Weintraub traveled to Wisconsin in November of 1980 to meet with its staff; indeed, it is the plaintiff's contention that the actual breach of the parties' contract occurred upon Mr. Weintraub's delivery of the chemical formula in Wisconsin at that time.
Nonetheless, Mr. Weintraub's affidavit makes clear that his appearance in Wisconsin came in the wake of his attendance at a business seminar in Chicago, Illinois, and during the course of his subsequent vacation from his employer, Ford Motor Company. In this context, Mr. Weintraub affirms that he traveled to Wisconsin to meet with the plaintiff's representatives solely "as a matter of convenience" and, significantly, that if he "had not attended [the] work related seminar in Chicago, Illinois, he would not have gone to Milwaukee, Wisconsin." Affidavit of Marvin Weintraub (November 16, 1983). The factual circumstances underlying the Seventh Circuit's opinion in Wisconsin Electrical Manufacturing Company, Inc. v. Pennant Products, Inc., 619 F.2d 676 (7th Cir.1980), upon which the plaintiff principally relies, are wholly distinguishable: In that case, the court found that the requirements of due process had been sufficiently established by two in state appearances by representatives of the nonresident defendant once to inspect the plaintiff's facilities to determine whether it was capable of performing the contemplated contract and a second time to discuss certain "misunderstandings" that had arisen between the parties. As explained supra at 1368, the Court of Appeals specifically held that the defendant's visits were not merely occasioned by convenience but were critical to the execution of the contract and the parties' performance thereunder. This Court declines to so characterize Marvin Weintraub's singular visit to Wisconsin in November of 1980, apparently undertaken for the sole purpose of delivery of the formula. The record persuasively establishes that his appearance was, indeed, merely a matter of convenience and, as such, constituted nothing more than "a foot-fall on the State's soil," an event upon which the Pennant Products court would have plainly declined to find jurisdiction. Wisconsin Electrical Manufacturing Company, Inc. v. Pennant Products, Inc., 619 F.2d 676, 678 n. 8 (7th Cir.1980).
The Court also finds significant the defendant's affirmation that he has "never advertised or solicited any investors, or conducted any advertising or solicitation activities, in the State of Wisconsin"; neither does he maintain a telephone listing, post office box, office, employees, representatives, or registered agents within the state. Affidavit of Leonard Schultz at 1-2 (July 20, 1983). Although the contract itself, appended to the plaintiff's responsive memorandum as an exhibit, provides little insight into the identity of the soliciting party, the defendant's uncontroverted affidavit *1371 clearly removes this case from the scope of the "soliciting party" principle articulated in Madison Consulting Group v. State of South Carolina, 752 F.2d 1193 (7th Cir.1985), and invoked, although to a different end, in Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214, 216 (7th Cir. 1985), see supra at 1369-1370.
The most persuasive argument the plaintiff rallies in support of its position is that the contract, by its very terms and conditions, contemplated "a continuing relationship" between the parties as the project developed a relationship that was purportedly to include the defendant's participation in the development of the formula technology and its concomitant share in the tangible results of the project through receipt of royalties. See Plaintiff's Memorandum in Opposition to Motion to Dismiss at 10-12 (November 8, 1983). The apparent difficulty with the argument is that it proves too much: The Court would be establishing a curious precedent indeed if it found today that a nonresident party might properly be haled into the court of a foreign jurisdiction merely by contracting for the provision of goods and services for an indeterminate period of time into the future. The absurdity of such a result is underscored by the very circumstances of this case, in which the so-called "continuing relationship" did not last beyond the delivery of what the plaintiff now characterizes as a worthless product.
Finally, the Court finds nothing to support the exercise of personal jurisdiction over this defendant in the parties' apparent exchange of correspondence and telephone calls, all purportedly in reference to the performance of the subject contract. Such "contacts" are surely characteristic of most commercial transactions, including but not limited to those attendant upon the execution and performance of business contracts between parties in different states. The Seventh Circuit, in Lakeside Bridge & Steel Company v. Mountain State Construction Company, 597 F.2d 596, 604 (7th Cir.1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980), specifically identified the anomalous end to which the plaintiff's argument would lead: The "[u]se of the interstate telephone and mail service to communicate with a Wisconsin plaintiff, if constituting contact supporting jurisdiction, would give jurisdiction to any state into which communications were directed."
For all of these reasons, the Court concludes that the defendant did not, in the language of Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958), "purposely avail[] himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Accordingly, the motion to dismiss the complaint for lack of personal jurisdiction must be granted.
CONCLUSION
For the reasons set forth herein, the Court hereby DENIES the plaintiff's motion to remand this case to the Wisconsin Circuit Court for Milwaukee County, pursuant to 28 U.S.C. § 1447(c).
The Court further GRANTS the defendant's motion to dismiss the complaint in toto for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.
|
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00211-CR
MARCY LENA MEJIA, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-12-24507
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Marcy Lena Mejia has filed four appeals from separate convictions. The convictions
stemmed from her plea of guilty pursuant to a plea agreement. In this particular case, pursuant to
the agreement, Mejia was sentenced to ten years’ confinement, probated for five years. We
contacted the parties in reference to apparent jurisdictional defects and have received and
considered their responses on this issue. The procedural posture of this case is identical to that
discussed in our opinion of this date in Marcy Lena Mejia v. The State of Texas, cause number
06-12-00208-CR. We addressed the jurisdictional issue in detail in that opinion, and, for the
reasons stated therein, we likewise conclude that we have no jurisdiction over this appeal.
We dismiss the appeal for want of jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: May 16, 2013
Date Decided: May 17, 2013
Do Not Publish
2
|
Filed: July 28, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-5
(CA-99-937-S)
Anthony Grandison,
Petitioner - Appellant,
versus
Thomas Corcoran, etc., et al.,
Respondents - Appellees.
O R D E R
The court amends its opinion filed July 24, 2000, as follows:
On the cover sheet, section 4 -- the word “ARGUED” is added
before the June 9, 2000, date.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY GRANDISON,
Petitioner-Appellant,
v.
THOMAS CORCORAN, Warden of the
Maryland Correctional Adjustment
No. 00-5
Center and the Maryland
Penitentiary; J. JOSEPH CURRAN, JR.,
Attorney General of the State of
Maryland,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-99-937-S)
Argued: June 9, 2000
Decided: July 24, 2000
Before MURNAGHAN, WILKINS, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Mary Elizabeth Davis, DAVIS & DAVIS, Washington,
D.C., for Appellant. Annabelle Louise Lisic, Assistant Attorney Gen-
eral, Criminal Appeals Division, OFFICE OF THE ATTORNEY
GENERAL, Baltimore, Maryland, for Appellees. ON BRIEF: Chris-
topher M. Davis, DAVIS & DAVIS, Washington, D.C., for Appel-
lant. J. Joseph Curran, Jr., Attorney General of Maryland, Criminal
Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Balti-
more, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
On May 22, 1984, a Maryland jury convicted Anthony Grandison
of the first-degree murders of David Scott Piechowicz and Susan
Carol Kennedy. After Grandison's original death sentences were
vacated by a state post-conviction court, he was again sentenced to
death after a sentencing jury found that his conduct, which included
hiring an associate to kill Piechowicz and Kennedy, satisfied Mary-
land's "murder for hire" aggravating circumstance. After exhausting
all available state remedies, Grandison petitioned the United States
District Court for the District of Maryland for relief. See 28 U.S.C.A.
§ 2254 (West 1994 and Supp. 2000). The district court denied his
petition and refused to issue a certificate of appealability. Grandison
appeals, raising numerous challenges to the state court proceedings.
Because we conclude that he has failed to make a substantial showing
of the denial of a constitutional right, see 28 U.S.C.A. § 2253(c)(2)
(West Supp. 2000), we deny his application for a certificate of
appealability and dismiss his appeal.
I.
The Maryland Court of Appeals summarized the underlying facts
in this case in Grandison's direct appeal from his convictions and the
death sentences he received at his original sentencing proceeding:
2
According to the State's evidence, [Vernon Lee Evans]
and Anthony Grandison entered into an agreement whereby
Evans would kill David Scott Piechowicz and his wife,
Cheryl, because the couple were scheduled to testify against
Grandison in a narcotics case pending in the United States
District Court for the District of Maryland. Evans was to
receive $9,000 from Grandison for performing the murders.
David Scott Piechowicz and Cheryl Piechowicz were
employed at the Warren House Motel in Baltimore County.
On April 28, 1983, Susan Kennedy, the sister of Cheryl Pie-
chowicz, was working in place of Cheryl at the Warren
House Motel. The evidence was sufficient to prove beyond
a reasonable doubt that, on April 28th, Evans went to the
motel and, not knowing the Piechowiczs, shot David Scott
Piechowicz and Susan Kennedy with a MAC-11 machine
pistol. Nineteen bullets were fired at the victims, who died
from multiple gunshot wounds.
Grandison v. State, 506 A.2d 580, 585-86 (Md. 1986) (Grandison II)
(internal quotation marks omitted).
On June 30, 1983, Grandison was indicted and charged in the Cir-
cuit Court for Baltimore County with the first-degree murders of Pie-
chowicz and Kennedy, conspiracy to commit murder, and the use of
a handgun in the commission of a felony of violence.1 While awaiting
trial on the state charges, Grandison was convicted in federal court on
both narcotics charges and witness tampering charges brought against
him in connection with the murders. Grandison, electing to represent
himself, was then tried before a jury on the state charges and found
guilty on all counts. For the murder counts, he received two death
sentences.
Grandison appealed the convictions and the death sentences, and
the Maryland Court of Appeals affirmed. See Grandison v. State, 506
A.2d 580 (Md. 1986) (Grandison II).2 On November 1, 1990, Grandi-
_________________________________________________________________
1 Before trial, the case was removed to Somerset County.
2 In Grandison v. State, 481 A.2d 1135 (Md. 1984) (Grandison I), the
Maryland Court of Appeals took an interlocutory appeal from the trial
3
son filed a petition seeking post-conviction relief in the Circuit Court
for Somerset County. That court granted relief, ordering that Grandi-
son receive a new sentencing hearing because defects in the sentenc-
ing form used at the first sentencing hearing may have, in violation
of Mills v. Maryland, 486 U.S. 367 (1988), prevented the jurors from
considering all relevant mitigation evidence.
On May 11, 1994, before the start of Grandison's resentencing
hearing in Somerset County, Grandison advised the resentencing
court that he wished it to appoint new counsel for him, arguing that
he and his counsel had an irreconcilable disagreement as to how his
defense should be conducted. After conducting an extensive in cam-
era discussion with both Grandison and his attorneys, Messrs. Wil-
liam Purpura and Arcangelo Tuminelli, about counsels' planned
defense, the resentencing court found that Grandison had no meritori-
ous reason to discharge counsel and that it would not appoint new
counsel for him. The court informed Grandison that his continued
insistence on discharging his counsel would result in him having to
proceed pro se. Despite the resentencing court's frequent statements
to Grandison about the importance of being represented by competent
counsel and its requests that Grandison reconsider the wisdom of his
decision, Grandison maintained that his counsel should be discharged
and replaced. Thus, after noting that Grandison clearly understood the
nature of the proceedings and the consequences of his decision to fire
counsel, the court informed Grandison that, unless he secured counsel
before the start of the resentencing hearing, which was to begin on
May 19, he would have to proceed pro se.
Grandison represented himself at the resentencing hearing. At
Grandison's request, the court appointed Tuminelli to be his standby
counsel. On June 3, 1994, at the hearing's conclusion, the jury found
the aggravating circumstance that Grandison had hired Evans to com-
mit the murders and that that aggravating circumstance outweighed
_________________________________________________________________
court's dismissal of Grandison's motion, made on the ground of double
jeopardy, to dismiss the state prosecution. The Court of Appeals rejected
Grandison's contention that the state prosecution violated double jeop-
ardy because Grandison had already been convicted of witness tampering
in relation to the murders in federal court. See id. at 1137-38. Grandison
raises no issues regarding the decision in Grandison I.
4
the mitigating circumstances.3 Accordingly, the jury imposed two
death sentences on Grandison. On appeal, the Maryland Court of
Appeals affirmed the sentences. See Grandison v. State, 670 A.2d 398
(Md. 1995) (Grandison III).
On July 10, 1997, Grandison, represented by current counsel, filed
a second petition for post-conviction relief in the Circuit Court for
Somerset County that raised over fifty challenges to his convictions
and death sentences. The post-conviction court conducted an evidenti-
ary hearing at which Grandison offered testimony from a psychologist
and psychiatrist/neurologist in an attempt to develop evidence that he
had severe mental problems that affected his competency during the
resentencing hearing and could have served as the basis for a mitiga-
tion defense. The post-conviction court denied Grandison relief in a
thorough memorandum and order dated June 29, 1998. The Maryland
Court of Appeals then denied Grandison leave to appeal from the
denial of post-conviction relief.
On April 5, 1999, Grandison filed a petition for a writ of habeas
corpus in the United States District Court for the District of Maryland,
raising over thirty challenges to his murder convictions and death sen-
tences. In a published opinion, the district court denied the petition.
See Grandison v. Corcoran, 78 F. Supp.2d 499 (D. Md. 2000).
Grandison then requested the district court to issue a certificate of
appealability as to several of the issues raised in his petition and to
the issues of whether the district court should have afforded him an
evidentiary hearing and whether District Court Judge Smalkin should
have recused himself from consideration of the petition. On February
22, 2000, the district court denied the motion. Grandison now
requests that we issue a certificate of appealability as to several of the
_________________________________________________________________
3 The jury unanimously found the mitigating circumstance that Grandi-
son had not previously been convicted of, entered a plea of guilty or nolo
contendre to, or been granted probation on stay of entry of judgment to,
a charge of committing a crime of violence. One or more jurors found
the mitigating circumstances that Grandison was unlikely to engage in
further criminal activity that would pose a threat to society and that
Grandison was "already serving life plus 31 years." (J.A. at 494.) The
jury unanimously found that the aggravating circumstance of hiring
Evans to commit the murders outweighed the mitigating circumstances.
5
issues raised before the district court, as well as the issue of whether
the district court applied the appropriate standard of review, and that
we grant him a writ of habeas corpus.
II.
A federal court may not grant a writ of habeas corpus unless the
state's adjudication on the merits "resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States," 28 U.S.C.A. § 2254(d)(1) (West Supp. 2000).4 Recently, in
Williams v. Taylor, 120 S. Ct. 1495 (2000), the Supreme Court pro-
vided guidance as to how to interpret 28 U.S.C.A. § 2254(d)(1), sub-
stantially affirming this Court's interpretation in Green v. French, 143
F.3d 865, 869 (4th Cir. 1998). The Supreme Court held that a state
court decision is "contrary to" clearly established federal law, as
determined by the Supreme Court, when "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 decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts."
Williams, 120 S. Ct. at 1523. A state court decision rests on an "un-
reasonable application" of clearly established federal law, as deter-
mined by the Supreme Court, when "the state court identifies the
correct governing legal principle from [the Supreme] Court's deci-
sions but unreasonably applies that principle to the facts of the prison-
er's case." Id. The Court stressed that the nature of the inquiry was
objective: "[A] federal habeas court making the `unreasonable appli-
_________________________________________________________________
4 When a federal habeas petitioner challenges findings of fact made by
a state court, a federal court cannot issue a writ unless the state's adjudi-
cation on the merits "resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C.A. § 2254(d)(2) (West Supp.
2000). "[A] determination of the factual issues made by a State court
shall be presumed to be correct," and "[t]he applicant shall have the bur-
den of rebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C.A. § 2254(e)(1) (West Supp. 2000). We are required
to consider a challenge to a state court finding of fact only in regard to
Grandison's argument concerning his competency to waive counsel and
whether that waiver was knowing and voluntary, which we address in
Part II.B.
6
cation' inquiry should ask whether the state court's application of
clearly established federal law was objectively unreasonable." Id. at
1521.
The standard of review provided by 28 U.S.C.A. § 2254(d)(1),
however, does not apply where a state court has not adjudicated a
habeas petitioner's constitutional claims on the merits. As this court
has noted, "[w]hen a petitioner has properly presented a claim to the
state court but the state court has not adjudicated the claim on the
merits, . . . our review of questions of law and mixed questions of law
and fact is de novo." Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir.
1999), aff'd, 120 S. Ct. 727 (2000).5
A.
Before applying the proper standard of review to Grandison's
claims regarding the state proceedings, we must address Grandison's
first contention: that the district court utilized an incorrect standard in
regard to 28 U.S.C.A. § 2254(d)(1)'s "unreasonable application"
clause. The district court considered and denied Grandison's habeas
petition after the Supreme Court granted certiorari in Williams but
before it handed down its decision. According to Grandison, the dis-
trict court utilized an "unreasonable application" inquiry that was sub-
jective, rather than objective. We note, however, that the district court
specifically stated that, in order to "be on the cautious side" before the
Supreme Court issued its decision in Williams, it would utilize the
"unreasonable application" test
adopted by the most liberal Circuit opinion interpreting Sec-
tion 2254(d)(1), viz., Matteo v. Superintendent, 171 F.3d
877 (3d Cir.) (en banc), cert. denied, ---- U.S. ----, 120
S. Ct. 73, 145 L.Ed.2d 62 (1999) where the Third Circuit
adopted an "objectively unreasonable" test, saying, "The
federal habeas court should not grant the petition unless the
state court decision, evaluated objectively and on the merits,
_________________________________________________________________
5 In this case, only Grandison's claim that his right to due process was
violated when one witness at his resentencing hearing improperly bol-
stered the testimony of another witness, see infra Part II.H.2, requires us
to apply a de novo standard of review.
7
resulted in an outcome that cannot reasonably be justified
under existing Supreme Court precedent." Id. at 889-90.
Grandison v. Corcoran, 78 F. Supp.2d 499, 502-03 (D. Md. 2000).
Thus, the district court clearly stated that its "unreasonable applica-
tion" inquiry would be an objective one. Moreover, Grandison does
not point to, nor can we find, any evidence that the district court did
not use an objective inquiry of the sort prescribed by the Supreme
Court in Williams. Thus, we find Grandison's argument on this issue
to be without merit, and we now turn to his claims regarding the state
proceedings.
B.
Grandison's first claim regarding the state proceedings is that his
waiver of counsel before his resentencing hearing was not knowing
and voluntary and that he was not competent to waive that right. In
regard to the issue of whether the waiver was knowing and voluntary,
Grandison claims that even though the Maryland Court of Appeals
decided that his waiver was knowing and voluntary in Grandison III,
see 670 A.2d 398, 412 (Md. 1995), the state post-conviction court6
should have reconsidered the issue in light of the testimony of the two
doctors who testified before it that Grandison was suffering from
mental impairments at the time of the resentencing.
In Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court held
that a defendant's waiver of counsel, in order to be valid, must meet
two criteria: The defendant's waiver must have been knowing and
voluntary, and the defendant must have been competent to make the
waiver. See id. at 400. The Court explained that "the purpose of the
`knowing and voluntary' inquiry . . . is to determine whether the
defendant actually does understand the significance and consequences
of a particular decision and whether the decision was uncoerced." Id.
at 401 n.12. "The focus of the competency inquiry is the defendant's
mental capacity; the question is whether he has the ability to under-
stand the proceedings." Id. "Requiring that a criminal defendant be
_________________________________________________________________
6 From this point on, references to "the state post-conviction court" are
to the court that denied Grandison's second petition for post-conviction
relief, not the court that granted his first one.
8
competent has a modest aim: It seeks to ensure that he has the capac-
ity to understand the proceedings and to assist counsel." Id. at 402.
Before reviewing the state courts' application of this standard to
Grandison's case, it is important to review some of the testimony
presented at the state post-conviction court's evidentiary hearing in
regard to this issue. At that hearing, both Dr. Robert Levin, a psychol-
ogist, and Dr. Michael Knable, a neurologist/psychiatrist, testified on
Grandison's behalf. Dr. Levin interviewed Grandison about his back-
ground and reported that Grandison had a history of substance abuse,
depression, and hyperactivity. He also noted that, as a child, Grandi-
son had been hit over the head with an ax. After administering a series
of psychological and intelligence tests to Grandison, Levin formed the
opinion that Grandison was of very low intelligence and that Grandi-
son suffers from damage to the frontal, temporal, and parietal areas
of his brain. Dr. Levin said that, as a result of this damage, Grandison
finds it difficult to concentrate on surrounding events and to under-
stand the consequences of his decisions. Dr. Levin believed that
Grandison did not appreciate the fact that he was waiving his right to
counsel when he discharged Purpura and Tuminelli eight days before
the start of his resentencing hearing. According to Dr. Levin, Grandi-
son was so fixated on his desire to discharge his attorneys that he sim-
ply did not understand that the consequence would be a waiver of his
right to be represented by counsel.
Like Dr. Levin, Dr. Knable believed that Grandison suffered from
mental problems. He also reported that Grandison had a history of
substance abuse and that he had suffered from head trauma at an early
age. Dr. Knable testified that, as a result of the neurological tests he
performed on Grandison, he believed that Grandison had suffered
from both attention deficit hyperactivity disorder and non-progressive
dementia. Grandison's dementia, according to Dr. Knable, made him
exercise poor judgment, have poor concentration, and not be able to
predict the consequences of his actions. Dr. Knable offered the opin-
ion that these facts would have undermined Grandison's ability to
make a rational decision to waive his right to counsel.
The State offered the testimony of Baltimore County psychiatrist
Dr. Michael Spodak, who stated that Grandison was competent to
decide to discharge his attorneys and proceed pro se. Dr. Spodak said
9
that, according to his review of the May 11, 1994 transcript, Grandi-
son was aware that he was being offered the choice of retaining his
counsel, discharging them and proceeding pro se, and discharging
them and retaining his own counsel before the resentencing hearing.
According to Dr. Spodak, Grandison may have been unhappy with
those choices, but he understood them. Dr. Spodak stressed that
Grandison's exchanges with the resentencing court and witnesses
indicated that he fully understood the nature of the proceedings and
was able to assist in his defense.
Dr. Spodak acknowledged that his findings contradicted the test
results offered by Dr. Levin and Dr. Knable, but he stated that
the true test of your ability and whether [a mental] impair-
ment spills over into any issues of competency, in my opin-
ion, is how you do in the actual field, the battle so to speak,
which in this case would be the courtroom. And notwith-
standing the description of problems that were in these test
data, when you look at Mr. Grandison's performance he
seemed to remember things from minute to minute. He
seemed to be on focus and on target about certain issues.
(J.A. at 799.)
In placing greater weight on the findings of Dr. Spodak than those
of Dr. Levin and Dr. Knable, the state post-conviction court observed
that Dr. Levin had failed to review any of the pleadings, briefs, or let-
ters that Grandison filed with the court. It noted that Dr. Knable had
failed to review Grandison's many legal writings, was unaware that
Grandison had represented himself in court in the past, had failed to
talk to Grandison's past attorneys, and had not extensively reviewed
the resentencing transcripts.
The state post-conviction court also noted that Dr. Spodak's testi-
mony was reinforced by that of Tuminelli and Purpura. Purpura testi-
fied that he found Grandison to be an intelligent and capable client:
"Mr. Grandison was extremely articulate on legal issues that involved
him. He was well up to date on cases." (J.A. at 876.) Furthermore,
"[Grandison] had a -- many practicing lawyers did not understand the
Federal Rules of Evidence. Mr. Grandison understood the Federal
10
Rules of Evidence probably as good as, if not better, than most prac-
ticing lawyers in the federal court. And he understood them com-
pletely." (J.A. at 881.) Tuminelli testified that "[a]ll I can say is that
in my contact with Anthony Grandison he appeared to be rational,
intelligent, and competent and I didn't see a basis for trying to have
him evaluated [by a mental health professional]." (J.A. at 872.)7
As noted earlier, Grandison raised the issue of whether his waiver
of counsel at resentencing was knowing and voluntary on his direct
appeal from that proceeding. The Maryland Court of Appeals found
that Grandison had unambiguously waived his right to counsel, noting
that he insisted on being appointed new counsel even after the resen-
tencing court advised him that his position would result in the dis-
charge of Tuminelli and Purpura. See Grandison III, 670 A.2d at 412.
According to Grandison, the state post-conviction court should
have revisited the holding of the Maryland Court of Appeals that his
waiver was knowing and voluntary in light of the testimony of Dr.
Levin and Dr. Knable. This contention is without merit. Even though
the state post-conviction court at first suggested that it would not
revisit the finding by the Maryland Court of Appeals that the waiver
was knowing and voluntary, it clearly considered Grandison's conten-
tion that he was incapable of understanding the consequence of his
decision to request counsel, i.e., that his right to counsel would be
waived unless he retained counsel before the start of the resentencing
hearing. As already noted, the state post-conviction court credited the
testimony of Tuminelli, Purpura, and Dr. Spodak over that of Dr.
Knable and Dr. Levin in regard to Grandison's ability to understand
the consequences of his decisions. The court also cited to portions of
Grandison's verbal exchanges with the resentencing court during
_________________________________________________________________
7 These observations are reinforced by the resentencing court's state-
ment to Grandison at the May 11, 1994 hearing that
I know from reviewing all of the motions and petitions and lis-
tening to all of the arguments that you are indeed an intelligent
gentleman with more than a passing knowledge of the law, so I
don't have any problem finding that you can read and write and
that you understand the law as it applies to . . . waiver of counsel.
(J.A. at 359.)
11
Grandison's attempt to secure the appointment of new counsel. In
some of these exchanges, Grandison discussed the history of his case,
discussed his Sixth Amendment right to counsel, marshaled cases in
support of his legal arguments, and argued to the court that it needed
to determine whether he had actually waived his right to counsel.
After reviewing these exchanges, the state post-conviction court noted
that "[t]hese are not the verbal exchanges of someone [who] is con-
fused or unaware of the consequences of his actions."8 (J.A. at 1043.)
Grandison falls well short of offering any, much less clear and con-
vincing, evidence that the factual findings made by the state post-
conviction court on this issue are not entitled to a presumption of cor-
rectness, see 28 U.S.C.A. § 2254(e)(1) (West Supp. 2000), and he cer-
tainly does not provide any evidence that he was somehow coerced
into making the waiver. In light of the record before us, we believe
that neither the decisions of the Maryland Court of Appeals nor the
state post-conviction court rejecting this claim were contrary to, or an
_________________________________________________________________
8 On May 11, 1994, the day when Grandison discharged Tuminelli and
Purpura, the resentencing court noted how Grandison was "fencing over
words," trying to discharge his counsel by stating only that he wanted
new counsel appointed and relying upon the semantic difference between
that request and a request to discharge counsel. (J.A. at 370.) The resen-
tencing court specifically found that, when Grandison asked for new
counsel, he knew that he would be discharging Tuminelli and Purpura.
On May 19, at the start of the resentencing hearing, the resentencing
court noted for the record the many times that Grandison had been
advised of his right to counsel. It then stated:"I think it's important that
the Court make a finding that you fully understand the importance of
counsel, of your right to counsel, and the Court finds that by discharging
counsel without a meritorious reason, not having counsel present today,
that you have waived your right to counsel." (J.A. at 397.) Grandison
points out that, on May 11, the resentencing court, when inquiring as to
whether he wished to discharge counsel, said that "[y]ou're not waiving
any rights" (J.A. at 371); this statement, he argues, confused him into
thinking that he was not waiving his right to counsel by discharging
Tuminelli and Purpura. In light of the fact that Grandison, immediately
after the court made that statement, specifically indicated his concern
that if he rephrased his request to have new counsel appointed in terms
of discharging his current counsel, he would be waiving his right to
counsel, we discern no evidence of confusion on Grandison's part.
Indeed, Grandison's statement indicates that he understood exactly the
consequences of his decision.
12
unreasonable application of, clearly established federal law as deter-
mined by the Supreme Court. The decisions were also not based upon
an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. See 28 U.S.C.A.
§ 2254(d)(2) (West Supp. 1999).
We now turn to the issue of Grandison's competency to waive his
right to counsel. The state post-conviction court clearly applied a
competency standard consistent with that articulated by Godinez in
order to determine that Grandison had the mental capacity to under-
stand the nature of the proceedings at resentencing and to assist in his
own defense. As support for its finding of competency to waive coun-
sel, it looked to the understanding of the proceedings that Grandison
demonstrated during his exchanges with the resentencing court before
discharging his counsel, as well as the testimony of Tuminelli, Pur-
pura, and Dr. Spodak, all of whom believed that Grandison was an
individual who understood the nature of the proceedings at which he
discharged counsel and was fully capable of assisting in his defense.
Thus, the state post-conviction court's decisions rejecting this claim
were not contrary to, or an unreasonable application of, clearly estab-
lished federal law as determined by the Supreme Court.9 The decision
was also not based upon an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings.
_________________________________________________________________
9 Grandison notes that the Supreme Court has stated that "a criminal
defendant's ability to represent himself has no bearing upon his compe-
tence to choose self-representation," Godinez v. Moran, 500 U.S. 389,
400 (1993), and argues that the state post-conviction court erred by using
Grandison's ability to represent himself as the sole ground for determin-
ing whether he was competent to waive his right to counsel. We think
that it would be odd to read the Supreme Court's statement in Godinez,
offered in the context of the observation that most defendants will repre-
sent themselves poorly without the aid of counsel, as saying that evi-
dence of a defendant's strong abilities to represent himself cannot be
used as a factor in determining competency. In any event, the state post-
conviction court did not rely upon Grandison's ability to represent him-
self as the sole factor for determining competency to waive counsel. As
noted above, it gave great weight to the testimony of Dr. Spodak, Tumi-
nelli, and Purpura.
13
C.
Grandison's second claim regarding the state proceedings is that
the resentencing court, in accepting Grandison's discharge of Tumi-
nelli and Purpura, effectively denied him his Sixth Amendment right
to counsel. In rejecting this claim, the Maryland Court of Appeals
focused upon the fact that Grandison had no meritorious reason to
discharge his counsel because, contrary to his assertion, the defense
that Grandison wanted to present at resentencing was not inconsistent
with the defense his counsel wished to present. The court noted that
[t]he record supports the trial court's findings that the two
defense theories were not irreconcilable and that Grandison
tried to manufacture a conflict, for purposes of generating an
appellate issue, where one did not exist. Both defense theo-
ries could have been presented without inconsistency. Evi-
dence [supporting Grandison's defense theory] could have
been presented leaving open to doubt whether Evans was
the shooter. Further evidence [supporting counsels' defense
theory] then could have been introduced suggesting that
even if Evans was the shooter, he must have been hired by
Rodney Kelly [a friend and criminal associate of Grandi-
son], acting of his own accord, or by someone else, because
Grandison knew the futility of such action vis-a-vis his
pending federal prosecution [because Piechowicz and Ken-
nedy had already given testimony that would be admissible
if they were unavailable to testify.]
Grandison III, 670 A.2d at 411.
We can find no error in this logic.10 We also note that, in light of
_________________________________________________________________
10 To the extent that Grandison wishes to use this argument to wage a
backdoor attack on the issue of whether his waiver of counsel was volun-
tary, we note that "[a] refusal without good cause to proceed with able
appointed counsel is a `voluntary' waiver." United States v. Gallop, 838
F.2d 105, 109 (4th Cir. 1988). In Part II.B of this opinion, we rejected
Grandison's argument that the resentencing court's May 11, 1994 state-
ment that "[y]ou're not waiving any rights" made his waiver of counsel
unknowing and involuntary by confusing him. (J.A. at 371.) Here,
14
the fact that Grandison was competent to waive counsel and did so
knowingly and voluntarily, it is difficult to understand how the resen-
tencing court, which repeatedly reminded Grandison of the impor-
tance of counsel and asked him to reconsider his decision, somehow
denied Grandison his right to counsel.11 Thus, the decision of the
Maryland Court of Appeals rejecting this claim was not contrary to,
or an unreasonable application of, clearly established federal law as
determined by the Supreme Court.
D.
Grandison's third claim regarding the state proceedings is that,
under the Supreme Court's decision in Dusky v. United States, 362
U.S. 402 (1960) (per curiam), he was incompetent to represent him-
self at the resentencing hearing. He states, correctly, that in Dusky, the
Supreme Court "held that the standard for competence to stand trial
is whether the defendant has `sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding' and
has `a rational as well as factual understanding of the proceedings
against him.'" Godinez, 509 U.S. at 396 (quoting Dusky, 362 U.S. at
402). He fails to note, however, that in Godinez, the Supreme Court
held that the standard for whether a defendant is competent to stand
trial is the same as the standard for whether he is competent to waive
counsel. See id. at 397-98. In other words, the competency standard
articulated by Godinez is the same as that articulated by Dusky. See
id. at 398 (rejecting "the notion that competence to plead guilty or to
waive the right to counsel must be measured by a standard that is
higher than (or even different from) the Dusky standard"). The state
_________________________________________________________________
Grandison appears to make the fantastic suggestion that the resentencing
court used the confusion created by this statement to deprive him of his
Sixth Amendment right to counsel. Because we have already rejected the
contention that Grandison was confused by the resentencing court's
statement, we necessarily reject this argument.
11 In light of our determination that Grandison's resentencing counsel
were not ineffective, see infra Part II.E, Grandison's suggestion that the
resentencing court deprived him of his Sixth Amendment right to counsel
by forcing him to choose between ineffective counsel and no counsel at
all is without merit.
15
post-conviction court used the same facts and legal standard to deter-
mine that Grandison was competent to represent himself at resentenc-
ing as it did to determine that he was competent to waive his right to
counsel. We have already concluded that its decision concluding that
Grandison was competent to waive counsel does not run afoul of the
standard of review provided by 28 U.S.C.A. § 2254(d)(1). Thus, it
necessarily follows that the state post-conviction court's decision
rejecting this claim was not contrary to, or an unreasonable applica-
tion of, clearly established federal law as determined by the Supreme
Court.
E.
Grandison's fourth claim regarding the state proceedings is that he
received ineffective assistance of counsel at resentencing. Specifi-
cally, he contends that Tuminelli and Purpura, whom he discharged
eight days before the resentencing hearing began, failed to investigate
and develop mitigation evidence regarding his alleged mental health
problems. He asserts that, if only his counsel had investigated these
problems so that the resentencing jury, which sentenced him to death
on the basis of Maryland's "murder for hire" aggravating circum-
stance, could have considered them, the jury would not have sen-
tenced him to death.12
In order to prevail on his claim of ineffective assistance of counsel,
Grandison must show (1) that his attorneys' actions, in light of all the
_________________________________________________________________
12 Maryland's "murder for hire" aggravating circumstance reads as fol-
lows: "The defendant engaged or employed another person to commit the
murder and the murder was committed pursuant to an agreement or con-
tract for remuneration or the promise of remuneration." Md. Ann. Code
art. 27, § 413(d)(7) (Supp. 1998). Maryland provides two categories of
mitigating circumstances into which evidence of mental problems on the
part of a defendant might fall: (1) "The murder was committed while the
capacity of the defendant to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law was substantially
impaired as a result of mental incapacity, mental disorder or emotional
disturbance;" and (2) "Any other facts which the jury or the court specifi-
cally sets forth in writing that it finds as mitigating circumstances in the
case." Md. Ann. Code art. 27, § 413(g)(4) and (8) (Supp. 1998).
16
surrounding circumstances, were professionally unreasonable, i.e.,
"outside the wide range of professionally competent assistance,"
Strickland v. Washington, 466 U.S. 668, 690 (1984); and that (2)
"there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different,"
id. at 694. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
When applying the first prong of the Strickland test, "court[s] must
indulge a strong presumption that counsel's conduct falls within the
wide range of professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy." Id. at 689
(internal quotation marks omitted). Thus, "strategic 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." Id. at 690-91. "In other words counsel has a duty to
make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary." Id. at 691. "In any inef-
fective assistance 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." Id.
Also important to keep in mind is that
[t]he reasonableness of counsel's actions may be determined
or substantially influenced by the defendant's own state-
ments or actions. Counsel's actions are usually based, quite
properly, on informed strategic choices made by the defen-
dant and on information supplied by the defendant. In par-
ticular, what investigation decisions are reasonable depends
critically on such information . . . . [W]hen a defendant has
given counsel reason to believe that pursuing certain investi-
gations would be fruitless or even harmful, counsel's failure
to pursue those investigations may not later be challenged
as unreasonable.
Id.
17
With these familiar principles in mind, we address Grandison's
claim that Tuminelli and Purpura were ineffective.13 The state post-
conviction court found that this claim was without merit, noting that
there was simply no indication on the record that Tuminelli and Pur-
pura were aware, or should have been aware, of any alleged mental
problems that could be used as mitigation evidence. As noted during
our discussion of Grandison's claim that he was not competent to
waive counsel and that his waiver was not knowing and voluntary, see
supra Part II.B, both Tuminelli and Purpura testified that they found
Grandison to be an intelligent and articulate client. Tuminelli's over-
all assessment of Grandison's performance as a client bears repeating:
"All I can say is that in my contact with Anthony Grandison he
appeared to be rational, intelligent and competent and I didn't see a
basis for trying to have him evaluated [by a mental health profes-
sional]." (J.A. at 872.) As the state post-conviction court noted, even
Dr. Knable, who testified on Grandison's behalf, said that the non-
progressive dementia with which he diagnosed Grandison "would not
be clear to the general public." (J.A. at 717.) 14
Moreover, as the state post-conviction court noted, Grandison did
not want his counsel to present any defense that alleged he was suffer-
_________________________________________________________________
13 As the district court noted, it is questionable whether Grandison
should even receive the benefit of a review of Tuminelli's and Purpura's
performance under Strickland v. Washington, 466 U.S. 668 (1984), as
Grandison discharged his attorneys eight days before the start of his
resentencing hearing, thus not giving them a chance to represent him in
the courtroom. In any event, as our discussion of this claim indicates,
Grandison's claim cannot survive the Strickland test.
14 Grandison's assertion that Tuminelli and Purpura should have sus-
pected mental problems because Grandison had sometimes refused to
take their advice and frequently discharged counsel in the past is tanta-
mount to the suggestion that attorneys should always characterize the
stubbornness of a strong-willed client as a mental impairment. Grandison
also notes that he told Dr. Levin that he suffered from migraine head-
aches, and that Tuminelli and Purpura should have recognized these
headaches as a sign of mental impairment. Even if we accept the dubious
contention that Grandison's migraine headaches should have put Tumi-
nelli and Purpura on notice of an alleged mental impairment, we note
that neither Tuminelli nor Purpura could recall that Grandison ever com-
plained of any headache problems.
18
ing from a mental impairment. Tuminelli testified that "[i]n addition
we never had any reason, that I have no recollection of ever thinking
that Mr. Grandison had some kind of deficiency. But even if he did,
I mean, there were limitations on what kind of defense was acceptable
to Mr. Grandison." (J.A. at 857.) Also relevant is that, according to
Tuminelli, one of Grandison's prior attorneys, Phil Dantes, had been
fired specifically because he had suggested using mental health evi-
dence in Grandison's defense. Grandison states that he never directly
instructed Tuminelli and Purpura not to pursue a mental-health miti-
gation defense; this assertion, however, is contradicted by the follow-
ing portion of Tuminelli's testimony: "And Mr. Grandison made clear
and the information we had from Capital Defense and from Mr. Dan-
tes was that [a mitigation defense based upon mental impairment] was
not open to discussion." (J.A. at 857.) Moreover, as noted earlier,
Tuminelli and Purpura had planned, at resentencing, to pursue a
defense in regard to the "murder for hire" aggravating circumstance
that, even if Evans was the triggerman, Grandison did not order or
offer to pay for the shooting because he was familiar enough with the
rules of evidence to know that the Piechowiczs' prior testimony from
motion hearings and grand jury proceedings could be admitted against
him at trial in the event of their death. Surely, as a strategic matter,
offering evidence of a debilitating mental impairment would have
been inconsistent with, and detrimental to, that line of defense, which
would have relied upon Grandison's strong mental abilities. In these
circumstances, we fail to see how Tuminelli and Purpura could have
been placed on notice that they needed to investigate questions about
Grandison's alleged mental impairments as they prepared for resen-
tencing. As the state post-conviction court noted, Grandison felt such
a defense to be unacceptable, and his behavior was that of an intelli-
gent and articulate individual. Grandison thus fails to meet the first
prong of the Strickland test;15 this failure obviates the need for us to
_________________________________________________________________
15 Grandison also asserts that counsel would have been unprepared to
go forward with resentencing even if he had not discharged them. We
note that, before the state post-conviction court, Purpura testified that had
he and Tuminelli not been discharged, they were prepared to present both
their and Grandison's defense theories. They also planned to argue that
the jury should take into consideration that life without parole was a bet-
ter alternative than the death penalty and that Grandison was working to
have a positive relationship with his family, particularly his children,
while he was in prison.
19
consider the second prong.16 The state post-conviction court's deci-
sion rejecting Grandison's claim of ineffective assistance of counsel
was not contrary to, or an unreasonable application of, clearly estab-
lished federal law as determined by the Supreme Court.
F.
Grandison's fifth claim regarding the state proceedings is that the
resentencing court violated his constitutional rights by denying him
a continuance after he had discharged his counsel at the May 11, 1994
hearing. A trial court has broad discretion with respect to the decision
to deny a continuance. See Morris v. Slappy, 461 U.S. 1, 11-12 (1983).17
A trial court's denial of a continuance will violate a defendant's Sixth
Amendment right to counsel only when the trial court displays "an
unreasoning and arbitrary insistence upon expeditiousness in the face
of a justifiable request for delay." Id. (internal quotation marks omit-
ted).18
_________________________________________________________________
16 While Grandison's claim fails on the first prong of the Strickland
test, the state post-conviction court was certainly correct to note that
Grandison was aware that he had suffered head trauma as a child and
could have presented that fact at the resentencing hearing. To the extent
that Grandison wished to present evidence about his background, includ-
ing his difficult childhood, at resentencing, nothing prevented him from
doing so. Thus, Grandison is hard-pressed to show any prejudice under
Strickland's second prong.
17 Although Morris dealt with the situation where a habeas petitioner
claimed that substitute counsel did not have enough time to prepare for
trial, we have applied it in the situation where the petitioner says that he,
acting as a pro se defendant, did not have enough time to prepare for trial
because of the trial court's refusal to grant a continuance. See, e.g.,
United States v. Lawrence, 161 F.3d 250, 254 (4th Cir. 1998).
18 While the substantive argument on this issue offered in Grandison's
brief alleges a violation of the Sixth Amendment, Grandison makes the
scattershot assertion that the denial of the continuance also violated his
rights under the Fifth, Fourteenth, and Eighth Amendments without
offering any arguments as to how his rights under those amendments
were violated. No matter what rights Grandison claims were violated,
Grandison's claim must fail in light of the determination by the Mary-
land Court of Appeals that Grandison had plenty of time to prepare for
his resentencing hearing after he discharged counsel.
20
This claim is patently frivolous. As the Maryland Court of Appeals
pointed out when it rejected this claim, "Grandison had eight days to
prepare for the proceeding, which was a resentencing rather than an
original sentencing in which he might be unfamiliar with the evi-
dence." See Grandison III, 670 A.2d at 426. That court also noted that
[t]he record also reflects that Grandison had spent the vast
majority of his time in prison since 1983 poring over tran-
scripts of the initial sentencing hearing and the applicable
law. The eight-day period before the sentencing proceedings
provided Grandison with ample time in which to summons
witnesses and familiarize himself with the relevant facts and
law that he had previously researched.
Id. In light of this analysis, we cannot say that the decision of the
Maryland Court of Appeals rejecting Grandison's claim on this issue
was contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court.
G.
Grandison's sixth and seventh claims regarding the state proceed-
ings involve Maryland's "murder for hire" aggravating circumstance,
which the resentencing jury found present in his case and used to sen-
tence him to death. The following is the statutory definition of Mary-
land's "murder for hire" aggravating circumstance: "The defendant
engaged or employed another person to commit the murder and the
murder was committed pursuant to an agreement or contract for remu-
neration or the promise of remuneration." Md. Ann. Code art. 27,
§ 413(d)(7). Grandison argues that the aggravating circumstance vio-
lates the Eighth Amendment and that an error in the resentencing
court's jury instructions in regard to that circumstance violated his
right to due process. We address these claims in turn.
1.
First, Grandison claims that Maryland's "murder for hire" aggra-
vating circumstance does not adequately narrow the class of murder-
ers eligible for the death penalty, and, thus, violates the Eighth
21
Amendment. Grandison notes that his first-degree murder convictions
rested upon the fact that he murdered Piechowicz and Kennedy
through a murder contract, and that the "murder for hire" aggravating
circumstance made him eligible for the death penalty because of the
same contract. He then uses this fact to assert that, in his case, the
death-eligible class of persons is the same size after sentencing as it
was at the end of the guilt/innocence phase of his trial.
On direct appeal from Grandison's resentencing, the Maryland
Court of Appeals rejected this claim, correctly relying upon the
Supreme Court cases of Lowenfield v. Phelps, 484 U.S. 231, 244-46
(1988), and Tuilaepa v. California, 512 U.S. 967, 972 (1994), for the
proposition that the Eighth Amendment is not violated because an
aggravating circumstance is contained within a crime's definition. See
Grandison III, 670 A.2d at 409. In Tuilaepa , the Court indicated that
an aggravating circumstance sufficiently narrows the class of death-
eligible murderers so long as it does "not apply to every defendant
convicted of murder; it must apply only to a subclass of defendants
convicted of murder." Tuilaepa, 512 U.S. at 972. Here, as the Mary-
land Court of Appeals noted, there is no question that Maryland's
"murder for hire" aggravating circumstance narrows the death-eligible
pool of murderers, as not every person convicted of first-degree mur-
der will have taken out a murder contract on his victims. Thus, this
claim is without merit. The decision of the Maryland Court of
Appeals rejecting Grandison's claim was not contrary to, or an unrea-
sonable application of, clearly established federal law as determined
by the Supreme Court.
2.
Second, Grandison claims that there was an error in the jury
instructions given at his resentencing hearing in regard to the "murder
for hire" aggravating circumstance that violated his right to due pro-
cess. The resentencing court instructed the jury that, in order to find
the presence of the "murder for hire" aggravating circumstance, it had
to find beyond a reasonable doubt that he agreed to pay someone to
commit the murder. Grandison contends, however, that the resentenc-
ing court should have adopted his proposed instruction that, in order
to find the presence of the aggravating circumstance, the jury had to
find that Evans was the one who actually committed the murders.
22
The Supreme Court has stated that "[t]he burden of demonstrating
that an erroneous instruction was so prejudicial that it will support a
collateral attack on the constitutional validity of a state court's judg-
ment is even greater than the showing required to establish plain error
on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
"The question in such a collateral proceeding is whether the ailing
instruction by itself so infected the trial that the resulting conviction
violates due process, not merely whether the instruction is undesir-
able, erroneous, or even universally condemned." Id. (internal quota-
tion marks and citations omitted).
Keeping these familiar principles in mind, it is apparent that
Grandison's claim on this issue is without merit. As the Maryland
Court of Appeals noted when it considered this question in Grandison
III, the jury instruction proposed by Grandison was clearly an incor-
rect statement of law. See 670 A.2d at 417. Under Maryland law,
"[p]roof of the aggravating circumstance required only a showing that
Grandison engaged someone to commit the murders and that the mur-
ders were committed pursuant to an agreement or contract for remu-
neration or promise thereof." Id. (citing Md. Ann. Code art. 27,
§ 413(d)(7)). Thus, as the Maryland Court of Appeals noted, an
instruction that Evans was the triggerman was not necessary under
Maryland law.19 See id. In addition, that court observed that
"Grandison's proposed instruction . . . was fairly covered by an
instruction actually given":
As the State's evidence consisted only of evidence that
Evans was the shooter, the court's general instruction
regarding the jury findings necessary to reach a conclusion
that the aggravating circumstance had been proven would
have precisely the same effect as the more specific instruc-
tion Grandison requested -- that the jury could not find the
aggravating factor proven unless it also found that Evans
had committed the murders.
_________________________________________________________________
19 To the extent that Grandison alleges that the given instruction was
incorrect under Maryland law, that allegation is not a cognizable basis
for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 71-72
(1991).
23
Id.
In these circumstances, it is impossible to say that the instruction
given to the resentencing jury on the "murder for hire" aggravating
circumstance was an error that so infected the trial that the imposition
of Grandison's death sentences violates due process. Thus, the deci-
sion of the Maryland Court of Appeals rejecting this claim was not
contrary to, or an unreasonable application of, clearly established fed-
eral law as determined by the Supreme Court.
H.
Grandison's eighth and ninth claims regarding the state proceed-
ings involve testimony offered by FBI Agent Kevin Foley, who testi-
fied at the resentencing hearing about his investigation into the
murders at the Warren House Motel. Grandison alleges that perjury
and impermissible bolstering of another witness by Foley violated his
right to due process. We address these claims in turn.
1.
First, Grandison alleges that, at resentencing, the prosecution
knowingly allowed Agent Foley to perjure himself on the stand. At
the hearing, Foley testified as to the reasons why Grandison became
the focus of the FBI's investigation into the murders. In giving his
reasons, Foley stated that the Piechowiczs were scheduled to testify
against Grandison; that Janet Moore, Grandison's girlfriend, had pre-
viously threatened Cheryl Piechowicz; and that "also on one prior
occasion a witness had been injured against Mr. Grandison." (Supp.
J.A. at 1-2.) Grandison says that this last reason was false and that
Foley and the prosecution knew it to be false.
A conviction acquired through the knowing use of perjured testi-
mony by the prosecution violates due process. See Napue v. Illinois,
360 U.S. 264, 269 (1959); Boyd v. French, 147 F.3d 319, 329 (4th
Cir. 1998), cert. denied, 525 U.S. 1150 (1999). "[K]nowingly false or
misleading testimony by a law enforcement officer is imputed to the
prosecution." Id. The knowing use of perjured testimony constitutes
a due process violation when "there is any reasonable likelihood that
24
the false testimony could have affected the judgment of the jury."
Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995) (internal quotation
marks omitted).
In Grandison III, the Maryland Court of Appeals rejected Grandi-
son's claim on this issue, stating that there was no evidence to "estab-
lish[ ] that Agent Foley's statement was false or that the prosecution
deliberately elicited false testimony." 670 A.2d at 434. Grandison
challenges this conclusion by pointing to a copy of an indictment
against both him and Evans regarding their attempted murder of a
man named Joseph Miller. According to the indictment, Grandison,
in 1979, injured Miller, who was scheduled to testify against a crimi-
nal associate of Grandison's named Walter Webster in a federal nar-
cotics case. (J.A. at 955.) Grandison argues, however, that because the
witness he injured was scheduled to testify against Webster, not him,
Agent Foley must have been lying, and that the prosecution knew he
was lying. Even if we accept the dubious contention that the indict-
ment, standing alone, shows that Foley knowingly presented false tes-
timony and that the prosecution knowingly elicited false testimony,
there is no reasonable likelihood that the statement could have
affected the outcome of the resentencing hearing. First, the fact that
Grandison injured any witness, including one scheduled to testify
against someone else, would seem to be a good reason to have sus-
pected Grandison in the murders of Piechowicz and Kennedy. Sec-
ond, Foley's testimony as to why his initial investigation focused on
Grandison mentioned two other important facts that Grandison does
not challenge: The FBI knew that the Piechowiczs were scheduled to
testify against Grandison and Janet Moore had threatened Cheryl Pie-
chowicz. Third, and most importantly, the reasons that the FBI
focused its investigation on Grandison are completely irrelevant to the
evidence discovered by law enforcement officials during their investi-
gation. The "murder for hire" aggravating circumstance was triggered
by evidence that Grandison hired Evans to commit the murder, not by
evidence as to why the investigation focused on Grandison. Thus, the
decision of the Maryland Court of Appeals rejecting this claim was
not contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court.
2.
Second, Grandison claims that his right to due process was violated
because the resentencing court allowed Agent Foley to bolster and
25
vouch for the testimony of Charlene Sparrow, Evans's girlfriend, who
testified at the hearing that she assisted Evans in his preparation for
the murder, that Evans came running out of the hotel after the mur-
ders and handed her the "smoking gun" used to kill the victims, that
Evans told her that he had committed the murders, and that Evans told
her that he would receive $9,000 from Grandison for committing the
murders. Later in the hearing, the prosecution called Agent Foley to
the stand, who, as part of his general discussion about the investiga-
tion, discussed his interviews with Sparrow. Grandison claims that the
following portion of his testimony was an improper bolstering of
Sparrow's testimony:
[Prosecutor:] Agent Foley, let me end this questioning this
way. There came a point in time of interviewing Charlene
Sparrow where you were satisfied she was telling the truth,
not based on strictly what she was telling you, but on other
things that corroborated what she had told you.
....
[Agent Foley :] Yes, that's correct. I was convinced she was
telling me the truth and it was totally corroborated.
(J.A. at 448-49.)
The Maryland Court of Appeals rejected this claim on procedural
grounds. See Grandison III, 670 A.2d at 420. Because, however, the
state has not raised the issue of procedural default, it has waived it.
We, therefore, review this claim de novo, as there has been no state
"adjudication on the merits" deserving deference under 28 U.S.C.A.
§ 2254(d). See Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir. 1999)
("When a petitioner has properly presented a claim to the state court
but the state court has not adjudicated the claim on the merits, . . . our
review of questions of law or mixed questions of law and fact is de
novo."), aff'd, 120 S. Ct. 727 (2000).
In the context of considering vouching and bolstering statements
made by a prosecuting attorney during closing arguments, we have
noted that "[w]hile vouching and bolstering are always inappropriate,
26
improper remarks during closing argument do not always mandate
retrial. The relevant question is whether the prosecutor's comments so
infected the trial with unfairness as to make the resulting conviction
a denial of due process." United States v. Sanchez, 118 F.3d 192, 198
(4th Cir. 1997) (internal quotation marks and alterations omitted). The
Sanchez court offered the following explanation as to how this ques-
tion should be answered:
In addressing a claim of improper vouching we must first
decide whether the comments made in fact constituted
vouching or bolstering. If so, we must next determine
whether the comments prejudicially affected the defendant
by considering (1) the degree to which the comments could
have misled the jury; (2) whether the comments were iso-
lated or extensive; (3) the strength of proof of guilt absent
the inappropriate comments; and (4) whether the comments
were deliberately made to divert the jury's attention.
Id.
Even assuming that an allegedly bolstering statement by a witness
should be held to the same standard as a prosecutor's statement, we
believe that Foley's statement concerning Sparrow's credibility did
not "so infect[ ] the trial with unfairness as to make the resulting con-
viction a denial of due process." Id. (internal quotation marks omit-
ted). While Foley's statement about Sparrow's credibility is
bolstering, it was isolated and clearly not made to divert the resen-
tencing jury's attention. Grandison makes no attempt to explain how
the statement could have misled the resentencing jury, and we are at
a loss to see how it could have done so. Finally, for purposes of the
resentencing jury's finding that the "murder for hire" aggravating cir-
cumstance applied to Grandison's case, the proof of Grandison's
involvement in the murder plot as the man who hired Evans was cer-
tainly very strong without Agent Foley's bolstering statement at the
resentencing hearing. Significantly, a trial jury, ten years before Foley
made the statement, found Grandison guilty of first-degree murder in
connection with the plot. Thus, Grandison's argument on this issue is
without merit.
27
I.
Grandison's tenth claim regarding the state proceedings is that the
Maryland death penalty statute is unconstitutional because it does not
mandate a sentencing proceeding in which a jury's finding of an
aggravating circumstance be bifurcated from the rest of the hearing.
Grandison contends that, according to Gregg v. Georgia, 428 U.S.
153 (1976), the Eighth Amendment requires such a bifurcation. In
Gregg, the Supreme Court expressed a preference for bifurcation of
a capital defendant's sentencing hearing from the guilt/innocence
trial. See id. at 190-91. Gregg does not, however, hold that the Eighth
Amendment requires an internal bifurcation of the sentencing pro-
ceedings. Thus, the decision of the Maryland Court of Appeals reject-
ing this claim, see Grandison III, 670 A.2d at 424, was not contrary
to, or an unreasonable application of, clearly established federal law
as determined by the Supreme Court.
J.
Grandison's eleventh claim regarding the state proceedings is that
Maryland's refusal to grant appellate review as of right to claims of
ineffective assistance of counsel raised in post conviction hearings
violates the Due Process Clause. The state post-conviction court
rejected this argument, holding that it was foreclosed by the Fourth
Circuit decision of Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995). In that
case, this Court rejected the same argument that Grandison makes on
this issue, holding that Maryland's decision not to grant appellate
review as of right does not violate the Due Process Clause. See id. at
1336. In relying upon Hunt, the state post-conviction court's decision
rejecting this claim was not contrary to, or an unreasonable applica-
tion of, clearly established federal law as determined by the Supreme
Court.
K.
While Grandison's other claims regarding the state proceedings
have alleged constitutional violations in regard to his resentencing
hearing, his remaining two claims involve alleged violations in his
original trial and in his appeal from his conviction. First, he claims
that the prosecution, in violation of Brady v. Maryland, 373 U.S. 83
28
(1963), withheld evidence at trial that would have impeached the
credibility of two of its witnesses. Second, he alleges that his appel-
late counsel on his appeal from his conviction failed to raise this
Brady issue properly. We address these arguments in turn.
1.
Grandison claims that, at trial, the prosecution failed to turn over
an unredacted copy of an FBI report that summarized the testimony
of Janet Bannister, an employee of the restaurant at the Warren House
Motel who was in the lobby shortly before the murders took place.
This report, he claims, is both favorable and material evidence whose
suppression violated his right to due process. Before considering the
details of his claim, we summarize the legal principles established by
the Supreme Court in Brady and its progeny. A prosecutor's failure
to disclose "evidence favorable to an accused . .. violates due process
where the evidence is material either to guilt or to punishment, irre-
spective of the good faith or bad faith of the prosecution." Brady, 373
U.S. at 87; see also Kyles v. Whitley, 514 U.S. 419, 433 (1995) (not-
ing that there is no difference between situations in which a defendant
requests disclosure and situations in which a defendant fails to make
such a request). Evidence is favorable if it is exculpatory or if it could
be used to impeach prosecution witnesses. See Strickler v. Greene,
527 U.S. 263, 280 (1999); United States v. Ellis, 121 F.3d 908, 914
(4th Cir. 1997). Evidence is material "if there is a reasonable proba-
bility that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different." See Kyles, 514 U.S. at
433 (internal quotation marks omitted). "A `reasonable probability' of
a different result is . . . shown when the government's evidentiary
suppression undermines confidence in the outcome of the trial." Id. at
434 (internal quotation marks omitted).
According to the unredacted copy of the FBI report, Bannister was
in the lobby of the Warren House Motel with her friend Mildred Tal-
ley around 3 p.m. on the day of the murders when she saw a black
male dressed in a light-colored shirt ask Kennedy for change. Ban-
nister then went to the parking lot to wait for an individual named
Arthur Faulk to join her for lunch; during her wait, she spoke with
two friends named Marie Valle and Mary Williams. After she and
Faulk returned to the motel from lunch, the police were on the scene.
29
At his trial, Grandison was in possession of a redacted copy of the
report that differed from the unredacted copy only in that the names
and addresses of the people Bannister reported seeing, except Ken-
nedy, were blacked out.
Grandison claims that the unredacted copy impeaches the testi-
mony of Helen Kondilidis and Etta Horn, two witnesses who were at
the motel on the afternoon of the shootings and who testified for the
prosecution that they saw a man fitting Evans's description in the
lobby shortly before the shootings.20 According to Grandison, the
unredacted copy shows that the only people in the hotel lobby at 3
p.m. were Bannister, Kennedy, Talley, and the black male who asked
for change. At trial, Horn testified that it was "about a quarter of 3:00"
when she saw Evans in the lobby, (J.A. at 103), and Kondilidis testi-
fied that it was around 3 p.m. when she saw Evans there. Thus, the
argument goes, the unredacted FBI report shows that Kondilidis and
Horn were not in the lobby at 3 p.m., as they claimed, and impeaches
their credibility.
Fatal to this argument is the fact that the unredacted FBI report
never records Bannister as saying that she, Kennedy, Talley, and the
black male were the only persons present in the lobby. Bannister,
according to the report, listed the presence of these individuals, but
never stated or implied that they were the only ones present at around
3 p.m.21 We note that, at trial, Grandison asserted that the unredacted
report would show that "Helen Kondilidis was on the parking lot of
the Warren House Hotel at the time that she testified that she was
viewing Vernon Evans in the Warren House." (J.A. at 187.) The unre-
dacted report never states or suggests that Bannister saw Kondilidis
in the parking lot. Because the unredacted report could not have been
used to impeach either Horn or Kondilidis, it is not favorable Brady
_________________________________________________________________
20 Horn worked as a member of the motel's housekeeping staff.
Kondilidis frequently visited the motel, as her aunt owned the motel res-
taurant.
21 Even if Bannister had purported to offer an exclusive list of those
present at 3 p.m., it is difficult to see how that list would impeach Horn's
testimony that it was fifteen minutes before three when she saw the indi-
vidual matching Evans's description in the lobby. Also, Horn testified
that she had seen the same individual several times earlier in the day.
30
evidence. It is also not material Brady evidence, as the fact that
Grandison did not possess it at trial does not undermine our confi-
dence in the jury's verdict. The parties argue over whether the prose-
cution was actually in possession of a copy of the unredacted report
at trial. Because we conclude that the unredacted report was neither
favorable nor material, we need not address this dispute. Accordingly,
the decision of the Maryland Court of Appeals rejecting this claim,
see Grandison II, 506 A.2d 580, 610-11 (Md. 1986), was not contrary
to, or an unreasonable application of, clearly established federal law
as determined by the Supreme Court.22
2.
Grandison next claims that his appellate counsel on direct appeal
from his conviction was ineffective because, even though she raised
the Brady issue, she did not argue that, under Barbee v. Warden, 331
F.2d 842 (4th Cir. 1964), police suppression of the unredacted FBI
report is attributed to the prosecution even if the prosecution had no
idea that the police had it. See id. at 846. Given our conclusion that
the unredacted report was neither favorable nor material evidence,
this claim, which, incidentally, contradicts Grandison's allegation that
the prosecution had a copy of the unredacted report at trial, is without
merit. Thus, the decision of the state post-conviction court rejecting
this claim was not contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court.
III.
Grandison's final two claims concern errors he alleges were com-
mitted by the district court. He argues that the district court erred in
denying his motion for recusal and in denying his request for an evi-
dentiary hearing. We address these claims in turn.
_________________________________________________________________
22 To the extent that Grandison argues that the unredacted report is
exculpatory or impeaching because Bannister's description of the black
male asking for change contradicts the descriptions given by Horn and
Kondilidis, we note that the redacted copy, which Grandison possessed
at trial, did not black out Bannister's description.
31
A.
Grandison claims that the district court judge should have recused
himself from review of his habeas petition. The district court denied
Grandison's motions for recusal and reassignment of the case. We
review a district court judge's decision not to recuse himself for abuse
of discretion. See United States v. DeTemple, 162 F.3d 279, 283 (4th
Cir. 1998), cert. denied, 526 U.S. 1137 (1999). Grandison makes two
arguments on this claim, both of which are wholly without merit.
First, he argues that the district court judge should have recused him-
self because he was an acquaintance of Joseph Kennedy, a former
security guard at the federal courthouse in Baltimore who was the
father of Susan Kennedy. Second, he argues that the district court
judge was not randomly assigned to consider his habeas petition. In
other words, he suggests that there was a conspiracy to make sure that
a particular district court judge was assigned to consider his petition
so that it would be denied.
Grandison's first argument must fail, as he alleges no facts that
would allow us to conclude that the district court judge's acquain-
tance with Joseph Kennedy was a source of significant extrajudicial
prejudice or bias that is necessary for this claim to succeed. See Liteky
v. United States, 510 U.S. 540, 554-55 (1994). Indeed, all he offers
is the conclusory allegation that, because the district court judge knew
Joseph Kennedy, he must have been biased against Grandison. This
conclusory allegation is not enough to support Grandison's claim. See
Cauthon v. Rogers, 116 F.3d 1334, 1336 (10th Cir. 1997) (stating that
conclusory allegations, standing alone, are not sufficient to state a
recusal claim); United States v. $292,888.04 in U.S. Currency, 54
F.3d 564, 566 (9th Cir. 1995) ("[M]ere conclusory allegations . . . are
insufficient to support a claim of bias or prejudice such that recusal
is required." (internal quotation marks omitted)); In re Kaminski, 960
F.2d 1062, 1065 n.3 (D.C. Cir. 1992) ("A judge should not recuse
himself based upon conclusory, unsupported or tenuous allegations.").
Grandison's second argument fails because he alleges no facts that
would support a conclusion that there was a conspiracy to make sure
that the district court judge would be the judge who considered his
habeas petition. In any event, there is absolutely no reason to suspect
that the district court did not consider Grandison's petition in a fair
32
and impartial manner before denying it. The district court, therefore,
did not abuse its discretion in denying Grandison's recusal motion.
B.
Grandison's final claim is that the district court erred in denying
his request for an evidentiary hearing. He argues that such a hearing
was needed in order for the district court to consider his claims of
ineffective assistance of counsel, his Brady claim, and his claims
regarding his waiver of his right to counsel. We review the district
court's decision to deny Grandison an evidentiary hearing for abuse
of discretion. See Thomas v. Taylor, 170 F.3d 466, 474-75 (4th Cir.),
cert. denied, 527 U.S. 1016 (1999). In order to receive an evidentiary
hearing on habeas review, Grandison must "allege[ ] additional facts
that, if true, would entitle him to relief." Cardwell v. Greene, 152
F.3d 331, 338 (4th Cir.) (internal quotation marks omitted), cert.
denied, 525 U.S. 1037 (1998). Grandison, who was given the oppor-
tunity to develop a factual predicate for his claims at a state post-
conviction hearing, argues only that the state post-conviction court
did not properly weigh the evidence he developed at the hearing or
made incorrect decisions as a matter of law, not that the factual record
needs to be better developed. Thus, the district court did not abuse its
discretion in denying Grandison an evidentiary hearing.
IV.
For the reasons set forth above, we conclude that Grandison has
failed to make a substantial showing of the denial of a federal consti-
tutional right with respect to any of his assertions of error. Accord-
ingly, we deny his request for a certificate of appealability and
dismiss the appeal.
DISMISSED
33
|
755 F.Supp. 1570 (1991)
RAMADA FRANCHISE SYSTEMS, INC., Plaintiff,
v.
MOTOR INN INVESTMENT CORPORATION, a Georgia Corporation, Lewis Broadcasting Corporation, a Georgia Corporation, and J. Lewis, Jr., Defendants.
Civ. A. No. 490-140.
United States District Court, S.D. Georgia, Savannah Division.
January 11, 1991.
*1571 Nolan B. Harmon, Atlanta, Ga., Paul W. Painter, Jr., Savannah, Ga., for plaintiff.
Charles W. Brannon, Jr., Savannah, Ga., for defendants.
ORDER
ALAIMO, District Judge.
In this diversity action, plaintiff (franchisor) seeks liquidated damages, costs and attorney's fees for defendants' (franchisee) alleged breach of a franchise agreement. The agreement expressly provides for the recovery of liquidated damages as compensation for a premature termination of the contract by the franchisee. Attorney's fees and costs are similarly included in the agreement to cover the expenses incurred in enforcing the terms and conditions of the agreement. Thus, based on this agreement, plaintiff has moved for summary judgment alleging that defendants prematurely terminated the agreement, thereby entitling plaintiff to the above damages. Defendants counter with their own summary judgment motion, alleging that the liquidated damages provision is penal and therefore void. In the alternative, defendants argue that even if the provision is valid, plaintiff, not defendants, prematurely terminated the agreement. Both motions are presently before the Court.
For reasons discussed below, plaintiff's motion will be DENIED in part and GRANTED in part. Defendants' motion will consequently be DENIED.
FACTS
On November 3, 1983, a franchise agreement ("License Agreement") was entered into by Ramada Inns, Inc. ("Ramada Inns"), and Motor Inn Investment Corporation ("Motor Inn"). Plaintiff[1] is the successor-in-interest to Ramada Inns and successor to any and all claims under the License Agreement involved in this action. Motor Inn, a defendant in this action, has been merged completely into Lewis Broadcasting Corporation ("Lewis Broadcasting"), which retains all rights of Motor Inn including its rights under the above License Agreement. J. Lewis, Jr., is the President of Lewis Broadcasting and, with respect to the License Agreement, signed a personal guaranty to insure that the obligations of Motor Inn under the Agreement would be met.[2]
The License Agreement in question governs a specific Ramada Inn located at 201 West Oglethorpe Avenue in Savannah, Georgia. Although the property itself belonged to the defendants and was previously operated as a motel, the License Agreement allowed defendants to operate the motel as a Ramada Inns franchise. The term of the agreement was for a period of fifteen (15) years, during which defendant agreed to pay a monthly franchise fee that amounted to 7.5% of gross room sales. See *1572 Section 6 [Fees] of License Agreement. The breakdown was essentially as follows: three (3.0%) percent of the gross room sales accounted for royalty fees to be paid directly to plaintiff; the remaining four and a half (4.5%) percent of the gross room sales accounted for marketing assessments and reservation system assessments, which were to be performed by Ramada Inter-National Association ("RINA"). Those payments, however, were also made to plaintiff, who maintained them in a separate account on behalf of RINA.
This action basically revolves around a default provision in the License Agreement. That provision lists a number of events which can constitute a default on behalf of the franchisee under the Agreement, thereby providing cause for termination of the franchise. When one of the enumerated events occurs, and the franchise is thereby terminated, the Agreement further provides for the payment of liquidated damages as compensation to the plaintiff, as franchisor. Costs and attorney's fees incurred by plaintiff in its attempts to enforce the Agreement are similarly provided.
The event which allegedly caused the termination of the agreement by plaintiff here was defendants' failure to continue operating the premises under the contract as a hotel. Specifically, the Agreement provides:
15. Default. Any of the following events will constitute a default and be good cause for Ramada to terminate the License without prejudice to any other rights or remedies which Ramada may have and exercise: ...
(b) Licensee ceases to operate the Hotel, defaults under any lease or sublease of the Hotel, or loses possession or the right to possession of all or a significant part of the Hotel, provided that if the loss of possession is due to governmental exercise of eminent domain, or if the Hotel is damaged or destroyed by fire or other casualty; then the provisions of Section 16 [Loss of the Hotel by Condemnation or Casualty] shall apply.
If the License is terminated pursuant to ... (b) ..., Licensee will immediately pay Ramada (as liquidated damages for premature termination and not as a penalty or as damages for any breach of the Agreement or as a substitute for other payments due to Ramada) an amount equal to the greater of (x) $50,000 or (y) the sum of all monthly payments required under Section 6 [Fees] during the 24 months preceding termination (or such shorter number of months between the date of termination and the date of expiration of the term of the License).
Licensee will pay all costs, expenses and reasonable attorneys fees incurred by Ramada in enforcing the terms and conditions of this Agreement.
The facts surrounding defendants' alleged premature termination of the Agreement are largely undisputed.
Apparently, in early July 1989, Wistar Lewis, son of J. Lewis, Jr., and a vice-president of Lewis Broadcasting, called Mr. Apostle, who was at that time a vice-president of plaintiff, to inform him of defendants' intent to sell the hotel property to the Savannah College of Art and Design ("College"). Rather than continue the use of the property as a hotel, the College intended to convert it into a college dormitory. He explained that the reason for the sale of the property was the lack of profitability that the hotel had been suffering over the past number of years. Mr. Apostle told Wistar that he was sorry for the turn of events and that Wistar needed to follow up the conversation with a written declaration. Mr. Apostle also claims that he informed Wistar that defendants would be held liable for the liquidated damages as specified in the Agreement. Wistar denies that he was so informed. Both parties agree, however, that they did discuss the possibility of defendants continuing the franchise at another location. The possibility of such an occurrence was determined to be unrealistic.
On July 11, 1989, defendants entered into a sales contract with the College in contemplation of the sale of the real estate. Several contingencies were made a part of that contract. The two of primary importance to this case are:
*1573 9. Contingencies. This contract and the transactions contemplated hereby shall be contingent upon and subject to the following matters being resolved within 30 days of the date hereof:
(b) Seller obtaining within such time as allowed in its franchise agreement a written waiver from Ramada, Inc., or other suitable indication of its having waived any rights it may have as franchisor to purchase the Premises.
* * * * * *
(d) Seller being able to cancel its Ramada Inn franchise agreement without penalty, prior to the date possession is to be delivered to Purchaser.
Defendants acknowledge that, given the various contingencies in the sales agreement, it was unlikely that they would all have been satisfied within the 30-day period. In fact, a number of them were not satisfied within the specified time period.
On July 12, 1989, defendants followed up the conversation between Wistar and Mr. Apostle with a letter[3] notifying Mr. Apostle, as plaintiff's representative, of defendants' intent to sell the hotel property pursuant to paragraph 13 of the License Agreement.[4] Defendants enclosed the sales agreement for plaintiff's perusal and stated that the offer had been accepted, subject to plaintiff's first right of refusal. Mention was also made of the enclosure of a lease agreement, but no such agreement was attached.[5]
The letter continued with the request that, if plaintiff chose to decline its first-right-of-refusal, defendants would be so informed at the earliest possible date because the College desired to take possession of the property on a lease basis by early September 1989, which would necessitate the termination of the existing hotel operations shortly before that date.
Defendants also requested a written statement from Ramada consenting to the cessation of the hotel operations and acknowledging that this action on behalf of defendants would not be construed as a default under the License Agreement. Commenting that it was possible that one or more of the contingencies in the sales agreement would prevent the consummation of the transaction, defendants left open the question of whether plaintiff would allow the present franchise relationship to continue unabated. In addition, defendants discussed the reasons behind the sale as due to the lack of profitability in recent years. They expressed the hope that, if the sale is consummated, their franchise relationship could eventually continue at another location.
This letter met with an undated written response by Mr. Apostle. He informed defendants that his letter was to serve as plaintiff's waiver of its right-of-first-refusal on the proposed purchase of the subject hotel. He reiterated that plaintiff had already officially negated Paragraph 13 of *1574 the License Agreement in 1985 through a Letter Agreement sent to all Ramada Licensees. At the close of his letter, Mr. Apostle referred defendants to Bonnie Stevens, who was at that time the manager for the Eastern Division of Franchise Administration, for response to any of defendants' questions.
Thereafter, on July 31, 1989, Bonnie Stevens wrote a letter to defendants. In the letter, she stated that Ramada was informed that defendants were going to cease to operate the franchise on August 28, 1989. She confirmed that such an action constituted premature termination of the License Agreement. She then advised defendants that, under Section 15 of the License Agreement, their premature termination of the Agreement would cause them to be liable to Ramada for liquidated damages in the amount equal to the greater of $50,000 or the sum of all monthly payments required under Section 6 [Fees] during the 24 months preceding termination. In closing, she told defendants that any questions or requests for assistance could be made by notifying her office.
Plaintiff continued under this assumption until August 4, 1989. On that date, Bonnie Stevens was allegedly called by an employee of defendants, Delores Orr, who informed Bonnie Stevens that she was directed by the general manager of Lewis Broadcasting to tell plaintiff that the sale was closed on July 31, 1989. Bonnie Stevens made a memo to her file regarding the telephone conversation with Delores Orr. In the memo, she stated: "I spoke with Delores Orr today, who was instructed by the General Manager to inform Ramada that the close of sale took place July 28, 1989. The facility will be utilized as a dormitory beginning August 19, 1989. I requested that the principals of the Licensee forward a letter in writing verifying the sale." The memo was dated the same day as the alleged phone call August 4, 1989.
There is no evidence of any later verification in writing by defendants. Although defendants do not admit that this conversation between Delores Orr and Bonnie Stevens took place, neither do they deny it. The only mention of the conversation with Delores Orr in the depositions accompanying the motions for summary judgment is in Bonnie Stevens' deposition where she states that the conversation took place. However, defendants were not questioned concerning the alleged conversation. The only other references to Delores Orr at all were questions about whether the individuals J. Lewis, Jr., and his sons knew who she was. Their responses were that the name sounded familiar.
Then, on August 9, 1989, Bonnie Stevens sent a "Notice of Final Termination" to defendants via certified mail. She stated that the letter constituted plaintiff's official notice of its determination to terminate and cancel the License Agreement. She specified that the termination resulted from defendants' failure to continuously operate the premises as required by Section 15 of the Agreement. The termination was noted as effective at the close of business July 31, 1989.
The letter included a demand for payment in full of all amounts due under the terms of the License Agreement. It additionally reiterated that pursuant to Section 15 of the Agreement, defendants owed Ramada a specified amount ($249,549) as liquidated damages for the premature termination of the contract. As a final matter, Bonnie Stevens informed defendants that the appropriate action necessary to disassociate defendants from the Ramada System were being taken. Those actions included removal of defendants from the Ramada Directory listing, suspension of Ramada Reservation services and notification of all credit card companies. Defendants were ordered to immediately remove all identification of defendants as a "Ramada Inn."
In closing, Bonnie Stevens proposed that defendants should contract her office if they had any questions or needed assistance with the termination.
This letter was then dispatched to and received by defendants. Unbeknownst to Bonnie Stevens, defendants did not cease to operate the premises as a hotel on July 31, 1989. In fact, it was still being operated as a Ramada Inn at the time defendants received the letter. Because of this inconsistency, *1575 defendants contend that they interpreted the "Notice of Final Termination" as plaintiff's willingness to allow the cessation of the premises as a hotel without liability on their part. This claim is made notwithstanding the clause in the letter referring to liquidated damages and the indication that plaintiff believed defendants had already ceased operations. Moreover, there is no evidence that defendants immediately attempted to contact plaintiff to discuss the mistake in the letter regarding the actual final operating date.
Based on her letter noticing defendants of plaintiff's decision to terminate the License Agreement due to defendants' actions, Bonnie Stevens immediately set into motion the chain of events that would ultimately lead to the deletion of defendants as a Ramada Inns franchisee. On August 9, 1989, she sent a memo to Mike Gallagher, who was in charge of the various accounts held by the franchisees. In that memo she authorized Gallagher to stop the monthly billing of defendants' franchise due to its termination, effective July 31, 1989. On the same day she distributed a memo to everyone concerned in the franchise administration that "PTU" action was to be taken regarding defendants' franchise. Specifically, she requested that the reservation system be turned off and the computer equipment removed, the sales service be suspended and the franchise be removed from the directory. A notation was made that these services were requested on August 10, 1989, but a further notation remarked that the "property will close as a Ramada 8/19/89" to be converted into a school dormitory, and so the "PTU must be removed prior to this date."
On August 11, 1989, Bonnie Stevens sent another memo (a "system bulletin") which simply informed all interested parties that defendants were deleted as franchisees effective July 31, 1989. A final "system bulletin" sent on that date noted that a number of further actions needed to be taken, including notifying the credit card companies and directory information, as well as visiting the franchise premises.
From the cross-letters, it appears that the parties did not again communicate with each other until August 21, 1989,[6] when one of defendants' representatives either Wistar Lewis or J. Lewis, III telephoned Bonnie Stevens to inform her that the hotel closed on that date rather than July 31, 1989. J. Lewis, III, apparently followed up the conversation with a letter which he sent to Bonnie Stevens on the same date August 21, 1989. In the letter, he acknowledged that defendants were in receipt of Stevens' letters of July 31 and August 9. He further stated that the hotel closed that day (August 21, 1989) in contemplation of the pending sale of the property and that efforts were being made to remove the Ramada signs and logos from the property as soon as practicable. With respect to the other matters raised in Stevens' correspondence, he suggested that they discuss them directly with each other or with plaintiff's representative in Savannah. He closed with the hope that they would be able to also discuss the alternatives for defendants continuing their association with plaintiff.
Bonnie Stevens received that letter on August 23, 1989. On the same day, she dispatched a letter to J. Lewis, III, stating that it was written to correct the termination date of the License Agreement. The correct date was noted as August 20, 1989, which refers to the termination as effective on the close of business that day. The only other correction she made was with regard to the monthly fees due plaintiff. Since she had previously told Mike Gallagher to stop billing defendants, plaintiff's Statement of Account only reflected fees due through July 31, 1989. Therefore, she told defendants to include amounts due through August 20, 1989, in the demand for payment. She then reiterated that the remainder of the items in the August 9, *1576 1989, letter were correct with respect to the liquidated damages owed and the termination procedure.
After dispatching that letter, Bonnie Stevens then sent a memo to Mike Gallagher correcting the final termination date to August 20, 1989, and authorizing the additional billing for that time period. Another system bulletin was dispersed that date to correct the proper date for deletion of defendants as franchisees. However, this was a "ghost" bulletin and was not received by all concerned parties. Based on this apparent lack of full curative effect, it would seem that defendants were already fully disassociated from Ramada Inns. Such was not the case. Despite all of the previous communications made in an effort to disassociate defendants from the Ramada name, there is evidence that the reservations system was still in effect and the signs and logos still in place at least until the close of business on August 20, 1989.
The questions before the Court are, therefore, both legal and factual. Plaintiff moved for summary judgment contending that, as a matter of law, defendants breached the License Agreement through their premature termination of the Agreement caused by their failure to operate the property continuously as a hotel. As such, plaintiff demands entry of a judgment against defendants and an award of liquidated damages, costs and reasonable attorney's fees, as provided under the License Agreement.
Defendants respond to plaintiff's contentions asserting, first, that the liquidated damages provision is penal and therefore invalid. Then, assuming that the provision is held valid, defendants assert that it was plaintiff who breached the License Agreement through its August 9, 1989, "Notice of Final Termination." The argument is that plaintiff terminated the franchise under the auspice that defendants ceased to operate it as a hotel when in fact it was still in operation as a hotel at the time of the termination. Because plaintiff was the one who first breached the agreement, defendants contend that they are entitled to summary judgment in their favor. Finally, assuming that the liquidation provision is valid and plaintiff was not the first to breach the License Agreement, defendants contend that there is an issue of fact as to the reasonableness of plaintiff's decision to terminate the Agreement.[7]
DISCUSSION
Initially, the Court finds that this dispute is governed by both Arizona and Georgia law. The License Agreement under consideration here stipulates that the Agreement was negotiated and executed in Phoenix, Arizona, and that it shall be governed by Arizona law. See Paragraph 19 [Miscellaneous Provisions] of License Agreement. Because this Court sits in Georgia, it must first look to Georgia conflicts law to determine whether the contract provision should be given effect. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
With regard to contract actions, the Georgia conflicts rule states that the law of the state where the contract is made and performed governs the validity and interpretation of the contract, except where the parties have chosen the law of a particular state to govern their contractual rights and responsibilities. Where that occurs, the choice of law provision in the contract will govern unless the chosen state has no substantial relationship to the parties or the transaction, or the result obtained from the application of the law of the chosen state would be contrary to Georgia public policy. Ryder Truck Lines, Inc. v. Goren Equipment Co., Inc., 576 F.Supp. 1348 (N.D.Ga. 1983).
With respect to the issues concerning the breach of the contract, it is evident that Arizona law applies. The agreement provides for the application of Arizona law and the State of Arizona has a substantial *1577 interest in the dispute, since the contract was entered into there and plaintiff previously had its principal place of business there. Thus, the use of Arizona law will not be prejudicial to the citizens of Georgia. See Salsbury Laboratories, Inc. v. Merieux Laboratories, Inc., 735 F.Supp. 1545 (M.D.Ga.1988). Moreover, the issue of whether a party breaches a contract by failing to meet a term of the contract is not unusual enough to warrant it being a matter of important public policy. Such issues are usually constrained to contracts involving illegal or immoral purposes. See Porubiansky v. Emory Univ., 156 Ga.App. 602, 275 S.E.2d 163, aff'd, 248 Ga. 391, 282 S.E.2d 903 (1981).
However, damages provisions in contracts which purport to be liquidated damages, but which are instead penalties intended to deter persons from breaching their contracts, are considered to be contrary to the fundamental public policy of the State of Georgia. Therefore, because the enforceability of the liquidated damages provision involves matters of public policy in Georgia, the Court is constrained to apply Georgia law in resolving whether the damages provision is valid, notwithstanding the parties' choice of Arizona law in their agreement. Ryder Truck Lines, 576 F.Supp. at 1354. The issues involving attorney fees and costs will nonetheless be governed by Arizona law, since those issues are not considered to be matters of important public policy under Georgia law. Id. at 1354.
I. The Liquidated Damages Provision
The application of Georgia law to the damages provision in this case is really a distinction without a difference. Both Arizona and Georgia apply relatively the same basic concepts to their determination of the enforceability of liquidated damages provisions. The only real difference is the method by which each state has developed its principles. Georgia derives its concepts from both statutory and case law, see, e.g., O.C.G.A. § 13-6-7, whereas Arizona's law is focused solely on case-by-case evaluations. See Larson-Hegstrom & Assoc. v. Jeffries, 145 Ariz. 329, 701 P.2d 587 (1985); Aztec Film Productions, Inc. v. Quinn, 116 Ariz. 468, 569 P.2d 1366 (1977).[8]
Through O.C.G.A. § 13-6-7, Georgia law provides that contracts for liquidated damages can be held to be valid and enforceable. Specifically, the statute provides:
If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.
O.C.G.A. § 13-6-7.
As a result of this statutory language, the Georgia courts have required that, in order for a liquidated damages clause to comply with § 13-6-7, three conditions must be met: (1) the injury caused by the breach must be difficult or impossible of accurate estimation; (2) the parties must intend to provide for damages rather than a penalty; and (3) the sum stipulated must be a reasonable pre-estimate of the probable loss. Wehunt v. ITT Bus. Communications Corp., 183 Ga.App. 560, 359 S.E.2d 383 (1987); Southeastern Land Fund, Inc. v. Real Estate World, Inc., 237 Ga. 227, 227 S.E.2d 340 (1976); Gibson v. Sheriff, 155 Ga.App. 578, 271 S.E.2d 710 (1980); see also Larson-Hegstrom, 145 Ariz. at 333, 701 P.2d at 591 (an agreement made in advance of a breach is a penalty unless the amount fixed in the contract is a reasonable forecast of just compensation for the harm caused by the breach and the harm caused by the breach is incapable or very difficult of accurate estimation).
Looking at each condition in turn, it is evident that the liquidated damages provision in the License Agreement is valid and enforceable. First, the harm caused *1578 by a breach in this case is of a kind that is difficult or impossible to estimate accurately. The provision can come into play, as it did here, due to the premature termination of the License Agreement. In such a case, the resulting harm would be the profits lost while the franchisor was without a franchisee.
Generally, the profitability of the franchisor depends on that of the franchisee, since the monthly franchise fees depend on a percentage of gross room sales. Factoring into the amount of rooms sold are the future business ability of the franchisee, changes in the formation of highways and occurrence of traffic, gas and oil shortages, and the general ability of the public at large to use the facilities. All of these represent inexactitudes that eventually contribute either to the success or the demise of the franchise. Both parties agree that running a franchise is a gamble. Even J. Lewis, Jr., admitted in his deposition that at the time they entered the franchise neither defendants nor plaintiff could forecast what the profits might be.
The second condition is similarly met. The intent of the parties can be determined from the language of the contract construed as a whole, in addition to the language in the liquidated damages clause and the special circumstances of the case. Although the specific words "liquidated damages" are not required for a court to find the provision enforceable, there must be some clear manifestation of the parties' intent to agree to liquidated damages. ADP-Financial Computer Services, Inc. v. First Nat'l. Bank, 703 F.2d 1261 (11th Cir.1983). The opposite contention would seem to be just as applicable. Therefore, the use of the specific words "liquidated damages" as those recoverable under the License Agreement will not, by themselves, constitute the requisite intent. See, e.g., Aztec Film Productions, 116 Ariz. 470, 569 P.2d at 1368 (the name given to the clause by the parties is not conclusive; the controlling elements are the intention of the parties and the circumstances of the case).
Looking at the circumstances of this case, it is apparent that the parties intended to provide for damages and not a penalty. Both parties recognize that in franchise agreements liquidated damages provisions are commonplace. Mr. Apostle stated in his affidavit and deposition that the provision in this contract was standard and similar to the ones provided in other Ramada franchise agreements. J. Lewis, Jr., further admitted that in his experience with the hotel business, which is far-reaching, he has found liquidated damages provisions to be in the average franchise agreement. According to him, they are simply a standard part of the contract which a person must just accept if he desires to operate a franchise.
Moreover, the language of the agreement evidences an intent on behalf of the parties to provide for liquidated damages, rather than a penalty. Although the words used in the provision are "by no means conclusive, they are a critical factor in determining the intent of the parties." Alexander v. Steining, 197 Ga.App. 328, 398 S.E.2d 390 (1990). The damages provision here expressly states that, if the License is terminated for any one of a number of listed reasons, the franchisee must pay plaintiff "as liquidated damages for premature termination and not as a penalty or as damages for any breach of the Agreement or as a substitute for other payments due to Ramada." This language clearly demonstrates an intent to select from the available remedies that would be due to plaintiff in the event of a breach and provide solely for liquidated damages to the exclusion of all others.[9]
*1579 The third and final condition is also met in this case; that is, the stipulated sum was a reasonable pre-estimate of the probable loss. Given the inability to compute exactly the actual damages in this case, the use of the percentage of gross room sales computed over the last two years that the franchise was in existence is a reasonable estimate of the franchisor's losses. As a matter of fact, it is probably the closest to actual damages that the parties can get. The same percentage applied in the liquidated damages provision is that used to determine the monthly franchise fee owed plaintiff a total of 7.5% of the gross room sales.
Because this type of agreement, as one based primarily on the whimsy of the public, necessarily leads to the conclusion that the gross room sales will most likely never be the same from year to year, the best estimate that can reasonably be accomplished is one based on similar payments made closest in time. Thus, if the sales were high in the two years preceding the termination of the agreement, the damages would similarly be high, which would most likely reflect the course of the sales over the next few years. Naturally, though, if the sales in the preceding two years were low, then as a consequence the recoverable damages will be low.
Moreover, the computation of damages based on two years' worth of franchise revenues, rather than some other sliding or graduated amount, is not arbitrary and unreasonable. Based on his knowledge in the area, Mr. Apostle testified in his deposition and affidavit that two years was shown to be the average time it took the franchisor to replace the terminated franchisee in a particular area. Defendants do not dispute this other than to say that the relative time should be based on the actual time it took to find a replacement. Although such a provision would probably be more readily upheld, see Davis, 137 Ariz. at 233, 669 P.2d at 1010; it will not be voided as arbitrary just because it includes a stable time period in which the damages are to be measured. There is no dispute here that two years is the average time it takes to find a replacement; thus, the time is reasonable. Furthermore, the agreement does make an exception for contracts which will expire in less than two years.
Defendants also argue that the choice between the greater of $50,000 and the amount calculated under the percentage of gross room sales renders the provision unreasonable. While it is true that a stipulation for the payment of a fixed, unvarying sum upon the breach of the contract can be construed as a penalty, such is not the case here. See Alexander v. Steining, 197 Ga. App. 328, 398 S.E.2d 390 (1990); see also Miller Cattle Co. v. Mattice, 38 Ariz. 180, 298 P. 640 (1931). This provision uses $50,000 as the absolute minimum that can be awarded as liquidated damages, because that is the amount of damages plaintiff would suffer despite the length of the remainder of the contract. This part of the provision was intended to compensate for breaches that occurred when there was less than two years remaining on the contract, a factor which would undoubtedly decrease the amount of damages recoverable.
Of course, if it is shown that the franchisor did not actually suffer any harm as a result of the breach, in that particular case, the liquidated damages provision would be construed as a penalty. Such is not the case here. The conclusion that plaintiff has suffered damages greater than the amount of $50,000 is evidenced by the fact that it has been approximately a year and a half since the termination of the agreement and plaintiff has still been unable to replace the franchisee.
Thus, after considering all of the special circumstances in this case in relation to the contract itself, it is evident that the parties intended to provide for the payment of liquidated damages in the event of a default under the agreement. This conclusion is widely supported by the case law. See Joyce's Submarine Sandwiches, Inc. *1580 v. California Public Employees' Retirement System, 195 Ga.App. 748, 395 S.E.2d 257 (1990) (similarly involved liquidated damages in a franchise agreement). Perhaps most on point, though involving an interpretation of Arizona law, is the case of Ramada Inns, Inc. v. Gadsden Motel Company, 804 F.2d 1562 (11th Cir.1986).
Gadsden involved a determination of the enforceability of a prior liquidated damages clause used by Ramada. The court upheld the validity of a provision which, similar to the one in this case, provided for a choice between the greater of a stipulated amount ($20,000) or a percentage of the royalty payments made under the contract in that case for a period of 12 months multiplied by two (which is in essence two years). Because the provision is so similar to the one here and because the law in Arizona is so similar to the law of Georgia, to hold other than in favor of the enforceability of the provision would, in effect, contravene the laws of both states.
II. Costs and Attorney's Fees
Next the Court addresses whether plaintiff is entitled to costs and attorney's fees incurred in the course of enforcing the terms and conditions of the License Agreement, as provided in that Agreement. Under Arizona law, attorney's fees are generally not allowed unless expressly provided for by statute or contract. When a contract does provide for attorney's fees, as the one here expressly does, the provision is enforced in accordance with the terms of the contract. First Federal Savings and Loan Assoc. of Phoenix v. Ram, 135 Ariz. 178, 659 P.2d 1323 (1982); Kammert Brothers Enterprises, Inc. v. Tanque Verde Plaza Co., 102 Ariz. 301, 428 P.2d 678 (1968).
Thus, attorney fees may be allowed in an action for breach of contract when the contract so provides. When enforcing the provision in accordance with the terms of the contract, a court must give the provision a broad, rather than narrow or restrictive view. Kammert, 102 Ariz. at 301, 428 P.2d at 678. Giving the provision here a reasonably broad meaning so as to comply with the laws of Arizona, this Court finds that plaintiff will be entitled to costs and reasonable attorney's fees if it is successful in enforcing the terms and conditions of the Agreement in this action.
III. Who Terminated the Agreement First?
In a breach of contract case under Arizona law, the burden of proof is on the plaintiff to plead and prove the breach. The question of whether a contract has been breached is ordinarily a question for the jury. Kammert, 4 Ariz.App. 349, 359-60 (1967), vacated on other grounds, 102 Ariz. 301, 428 P.2d 678 (1968); Matson v. Bradbury, 40 Ariz. 140, 10 P.2d 376 (1932); see also Graphics Products Distributors, Inc. v. MPL Leasing Corp., 170 Ga.App. 555, 317 S.E.2d 623 (1984) (it is for the jury to determine, based upon the evidence presented, whether there was a breach of contract and, if so, whether the plaintiff sustained damages as a result thereof). The only time judgment can be rendered as a matter of law is when the undisputed material facts in the case, together with the evidence taken in favor of the non-movant, establish that a judgment in favor of the movant is mandated by the applicable law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Thrasher v. State Farm Fire & Casualty Co., 734 F.2d 637 (11th Cir.1984).
Although Arizona law is scarce on the issue, other jurisdictions have held that, even where the facts are undisputed, the issue of breach is essentially one for the jury. See Turrill v. Life Ins. Co. of North America, 753 F.2d 1322 (5th Cir.1985) (although interpretation of unambiguous contract raises purely legal questions that the court may resolve as a matter of law, whether the parties had substantially complied with the terms of the contract presents pure question of fact for jury alone); In re Stevenson Associates, Inc., 777 F.2d 415 (8th Cir.1985) (failure of condition to perform contractual duty does not as a matter of law discharge promisor of that duty); Simplex, Inc. v. Diversified Energy Systems, Inc., 847 F.2d 1290 (7th Cir.1988) (whether supplier breached supply contract by failing to meet contract specifications was question for jury in breach of contract action).
*1581 Applying the above principles, the Court holds that the question of who breached the franchise agreement is a matter best left to the determination of the jury. It is for the jury to determine the materiality of the breach and whether the conduct of the parties constituted a breach. See Battista v. Lebanon Trotting Ass'n, 538 F.2d 111 (6th Cir.1976); Canada Dry Corp. v. Nehi Beverage Co., Inc. of Indianapolis, 723 F.2d 512 (7th Cir.1983).
Despite the notion that this Court could probably leave the question for the jury's determination without finding factual disputes, the evidence of some dispute as to the facts only makes the Court's holding stronger. From the evidence presented in the record, affidavits and depositions, the alleged fact that the initial phone call by Delores Orr was made to plaintiff, thereby relaying the wrong information, seems to be disputed. The evidence in the record is lacking on this issue, and defendants completely ignore it in their arguments. Whether or not this conversation took place is of special importance, because it goes to the plaintiff's intent in terminating the Agreement plaintiff believed that defendants were the initial terminators. Therefore, in consideration of this discrepancy in addition to other facts that seem to be questioned in the record, as previously mentioned, the Court will deny summary judgment as to the issue of the breach. However, if at trial it is determined that defendants did breach the agreement, plaintiff will be entitled to liquidated damages, as well as costs and reasonable attorney's fees.
CONCLUSION
Upon consideration of all the evidence before it, the Court concludes that a material issue of fact as to who breached the franchise agreement exists. Therefore, both parties' motions for summary judgment on the issue of breach are DENIED. However, the Court holds as a matter of law that the liquidated damages provision and the attorney's fees provision are valid. Accordingly, plaintiff's summary judgment motion with respect to the validity of these clauses is GRANTED. The Clerk of the Court is directed to enter an appropriate judgment.
SO ORDERED.
NOTES
[1] Defendants make a bare allegation that plaintiff is not the party entitled to bring suit. After full consideration of the record, the Court finds that the evidence does show plaintiff as the proper party.
[2] Motor Inn, Lewis Broadcasting and J. Lewis, Jr. will be noted collectively herein as "defendants."
[3] This letter was written by J. Lewis, III, another son of J. Lewis, Jr. In addition to being an attorney, J. Lewis, III, is the secretary and another vice-president of Lewis Broadcasting.
[4] Paragraph 13 of the License Agreement provides:
13. Transfer of the Hotel. The transfer of the Hotel (by sale, lease, sublease or otherwise) or any part thereof, or any business conducted therein by Licensee is subject to a right of first refusal by Ramada. Licensee will deliver to Ramada a copy of any bona fide offer or contract to purchase which is acceptable to Licensee. Concurrently therewith, Licensee shall also deliver to Ramada (a) copies of all financial information and operating data exhibited to the prospective transferee, and (b) such other financial information and operating data as Ramada may reasonably request. Ramada may, within forty-five (45) days after delivery of the above documentation, purchase or otherwise acquire the property to be transferred, upon the same terms and conditions, otherwise Licensee may transfer the same to the prospective transferee.
Construing this paragraph in conjunction with the whole agreement, it seems that this clause contemplates the sale of the property to one who would continue operating the franchise. This interpretation is further evidenced by defendants' comments in its letter. Defendants enclosed a copy of the sales agreement between itself and the College, but did not enclose any financial or operating data because the premises were to be converted into a dormitory.
[5] There was also a postscript regarding the alleged lease. In it, defendants informed plaintiff that the lease had not yet been signed but would be sent after execution.
[6] It is unclear whether the parties did not actually communicate until this date, since no one can remember when things were discussed, nor to whom they spoke. Thus, it is possible that there were more communications regarding this dispute than are noted under the facts here. Nevertheless, it appears that at least one phone call was made between the parties on August 21, 1989, because Bonnie Stevens made reference to the discussion in a letter she wrote August 23, 1989.
[7] The License Agreement provides that the plaintiff will not unreasonably withhold approvals and consents. However, there is no evidence that defendants sought the consent or approval of the sale of the property to the College beyond the plaintiff's alleged first-right-of-refusal. Even if this allegation did present a jury question, the question of who breached the contract is by itself a jury question, as will be discussed later. Thus, the allegation of consent will not be addressed at this time.
[8] As a general rule under Arizona law, in a case involving the breach of a contract, the court will first look to the contract to see what remedies, if any, are available to the nonbreaching party. Then, when the contract is found to provide for the remedy or the amount of damages in the event of a breach, the terms of the contract control. Green v. Snodgrass, 79 Ariz. 319, 289 P.2d 191 (1955); Deuel v. McCollum, 1 Ariz.App. 188, 400 P.2d 859 (1965). This general rule is, however, qualified by the proviso that the stipulated amount of damages be reasonable. Marshall v. Patzman, 81 Ariz. 367, 306 P.2d 287 (1957); Davis v. Tucson Arizona Boys Choir Soc., 137 Ariz. 228, 669 P.2d 1005 (1983).
[9] Defendants argue that the additional language regarding "damages for any breach of the Agreement or as a substitute for other payments due" necessarily implies that plaintiff was attempting to provide for both liquidated as well as actual damages. The agreement, however, is more effectively read as providing for the award of liquidated damages to the exclusion of all others.
Yet even if the provision were read to provide actual damages as an alternative, an award of actual damages could only be given under certain circumstances, such as when the injuries were due to a breach that did not involve the premature termination of the contract. Such provisions are acceptable under Georgia law. The courts recognize that often only certain breaches will result in damages difficult to estimate while other types of breaches can result in damages that are easily ascertainable. When varying types of breaches are possible in a single type of contract, it would almost be necessary to provide liquidated damages for only those injuries that are hard to ascertain, which would thereby leave the remainder of the injuries to be ascertained in the usual manner. See Fortune Bridge Co. v. Department of Transportation, 242 Ga. 531, 250 S.E.2d 401 (1978).
|
358 N.W.2d 654 (1984)
Andy L. BOND, as Trustee for the heirs and next of kin of Dane Swenson, Decedent, Respondent,
v.
Thomas ROOS and Diane Roos, Respondents,
Janice Lynn Swenson, Appellant,
Daniel F. Swenson, Respondent,
County of Scott, Respondent,
State of Minnesota, Respondent.
No. C5-82-242.
Supreme Court of Minnesota.
December 7, 1984.
*655 Richard H. Knutson, St. Paul, for appellant.
Paul H. Hauge, Eagan, for Swenson.
Robert Scheifelbein, Minneapolis, for Roos.
John Varpness, Minneapolis, for Scott County.
James Alfeby, St. Paul, for State.
Eckman, Strandness & Egan, P.A., Mn Trial Lawyers Assoc., for amicus curiae.
Considered and decided by the court en banc without oral argument.
*656 KELLEY, Justice.
The trial court, in ruling on a petition to approve distribution of a settlement of a death claim arising out of a motor vehicle accident, refused to allocate to the deceased child's mother any of the net settlement proceeds although there had been neither a judicial determination nor admission of fault. The trial court concluded that public policy prohibited her from benefiting from her own negligent wrongdoing. We reverse.
Dane Swenson, an infant, was killed in an automobile accident when an automobile driven by his mother, appellant Janice Lynn Swenson, collided with a vehicle driven by Diane Roos. Appellant was crossing Highway 169 from County Road 9 in Scott County when her vehicle was struck broadside by the Roos vehicle. At the time of the accident, Janice Swenson was separated from her husband, Daniel F. Swenson, and the two have since been divorced. Dane left surviving him as next of kin his parents and a sister. A trustee appointed pursuant to Minn.Stat. § 573.02, subd. 3 (1982) presented to the county court a petition for approval of distribution of a settlement which had been made with the insurers of the Roos and Swenson vehicles. Although there was pending a dissolution action between Janice and Daniel, they had agreed that the net settlement proceeds would be distributed one-third to Daniel Swenson, one-third to Lindsey E. Swenson, the surviving sister, and one-third to Janice Swenson. Notwithstanding the agreement, the trial court refused distribution of any of the settlement proceeds to Janice, holding that any distribution would be contrary to the public policy that a person should not be permitted to benefit by her own wrongdoing. The trial court relied on Hondl v. Chicago Great Western Railway Co., 249 Minn. 306, 82 N.W.2d 245 (1957), and Martz v. Revier, 284 Minn. 166, 170 N.W.2d 83 (1969).
The role of the court in the distribution of the amount of recovery in a wrongful death action is to determine the proportionate pecuniary loss of the persons entitled to recovery and order distribution accordingly. Minn.Stat. § 573.02, subd. 1 (Supp. 1983). The same subdivision provides that the recovery shall be "for the exclusive benefit of the surviving spouse and next of kin * * *." Id. Rule 2, Code of Rules for the District Courts, provides that after a determination of the amount of recovery in a wrongful death action and a petition for distribution, "[t]he court by order, or by decree of distribution, will direct distribution of the money to the persons entitled thereto by law." Construing the statute and the rule together, appellant Janice Swenson, as next of kin to Dane Swenson, was entitled by the statute to a share of the proceeds of the wrongful death action unless there is something else in the law that would preclude any recovery by her.
The trial judge found that Janice Swenson was negligent by not maintaining a proper lookout and by not yielding the right-of-way to the Roos vehicle and that her negligence was the sole direct cause of the collision that resulted in Dane's death. If those findings are sustained by the record, appellant is not entitled to a share of the settlement proceeds. However, in both the Martz and Hondl cases, there were trials on the issues of negligence and causation. In both there were verdicts establishing causal negligence of the next of kin. In this case there was no trial; no verdict holding Janice Swenson completely responsible for the accident; nor any admission of causal fault by her. In this proceeding the record fails to disclose any competent evidence that Janice Swenson was causally negligent. The trial court's findings are based solely upon a statement by the trustee's attorney that Janice Swenson was negligent, at least in part, and a statement of Daniel Swenson, who was not a witness to the collision, that his wife, "proceeded into the flow of traffic and was hit broadside by a car." There is nothing in this record to show the trial judge was fully apprised of the circumstances of the accident. Martz and Hondl hold that where a next of kin has been adjudicated to be at fault after a proceeding to determine *657 that issue, that person is not legally entitled to recover. But where, as here, there was never any hearing, except the distribution hearing, and there was no motion for summary judgment on the issues of negligence and causation, the trial court went beyond its statutory authority by holding that appellant was not entitled to any of the settlement proceeds.
Under section 573.02, subd. 1, the trial judge has authority to determine the "proportionate pecuniary loss of the persons entitled to the recovery." Minn.Stat. § 573.02, subd. 1 (Supp.1983). Of course, the trial judge need not accept a stipulation that provides ultimate distribution of the proceeds to the next of kin and is free to make independent findings of how the proceeds should be distributed proportionally according to the pecuniary loss of the survivors. However, the trial judge does not have authority to find one of the next of kin is barred from any distribution because the death was caused by that person unless the person has admitted that causal fact, or there has been a determination of fault in a judicial proceeding, or unless the interested next of kin stipulate that at the distribution hearing the trial court can find the liability facts. In this case, none of these events occurred.
The sole ground the trial court articulated for denial of appellant's participation in the settlement proceeds was its finding that she was solely causally negligent. The trial court did not otherwise deny her participation because she did not sustain pecuniary loss. From the record, it appears as a matter of law that appellant's pecuniary loss as the result of Dane's death was at least as great as that of her daughter and husband. Accordingly, we reverse and direct the trial court to enter an order of distribution on a one-third each basis.
Reversed.
SIMONETT, Justice (concurring specially).
I concur in the majority opinion with these added comments. Where one of the next-of-kin beneficiaries is also the tortfeasor, there may be instances when the amount of the negotiated death settlement has been substantially discounted for that tortfeasor's fault. While the trial court does not decide fault issues in an application for distribution of the settlement, it does seem to me there may be occasions where the trial court would consider whether such a discount occurred and, if so, its effect on the fairness of the settlement distribution.
No such discount was asserted here. Even if such a claim had been made, it appears that Mrs. Swenson, the mother and apparently the custodial parent, has likely sustained the greatest pecuniary loss, a loss that more than offsets any discount for her fault. The trustee and family members have agreed on an equal share distribution, and no evidence was presented to show this proposal was unfair. So many different factors go into a negotiated settlement that it is risky to give much weight ordinarily to any discount for fault. Certainly none need be given here. Allocating pecuniary worth shares within a family circle where one is dealing with such intangible intimacies as comfort, companionship and counsel is, at best, imprecise, and one must rely on rough approximations and basic fairness.
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207 F.2d 414
Harry SIGMAN and Sylvia Sigman, and Kay Feldman and Frances Feldman, Appellants,v.Roland VAN GILDER (Defendant and Third Party Plaintiff), (Harry SIGMAN, Third Party Defendant).
No. 11051.
United States Court of Appeals Third Circuit.
Argued September 18, 1953.
Decided October 7, 1953.
Appeal from the United States District Court for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
1
Francis E. Marshall, Philadelphia, Pa. (Thomas E. Comber, Jr., and Pepper, Bodine, Stokes & Hamilton, Philadelphia, Pa., on the brief), for appellants.
2
Laurence H. Eldredge, Philadelphia, for VanGilder.
3
Thomson F. Edwards, Philadelphia, Pa., for Harry Sigman, third party defendant.
4
O. Jacob Tallman, Allentown, Pa., Attorneys for Appellee.
5
Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.
6
PER CURIAM.
7
Careful consideration of the briefs and arguments of the parties convinces us that the trial in the court below was devoid of error. The questions presented were primarily those for the jury and the triers of the facts had ample evidence upon which to render their verdict. Accordingly, the judgment of the court below, 115 F.Supp. 366, will be affirmed.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREMAYNE KENDRICK BLACKWELL, a/k/a Little Kenny, a/k/a
Tremayne Oakley Kendrick, a/k/a Kenny, a/k/a Kendrick
Jermaine Oakley, a/k/a Kendrick Tremayne Oakley,
Defendant – Appellant.
No. 09-4202
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK RAYSHAWN PARKS, a/k/a Bam, a/k/a Bam Parks, a/k/a
Rayshawn Parks,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00257-RLV-DCK-1; 5:05-cr-
00257-RLV-DCK-2)
Argued: May 13, 2011 Decided: June 29, 2011
Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina; Scott Hadden Gsell,
Charlotte, North Carolina, for Appellants. Richard Lee Edwards,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director,
Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant Derrick Rayshawn
Parks. Edward R. Ryan, United States Attorney, Adam Morris,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Based on evidence showing their involvement in a drug
distribution organization operating near Statesville, North
Carolina, from 1999 to 2005, Appellants Tremayne Kendrick
Blackwell and Derrick Rayshawn Parks were charged in a one-count
indictment with conspiring to possess with intent to distribute
50 grams or more of crack cocaine and five kilograms or more of
cocaine powder. See 21 U.S.C. § 841(a)(2), (b)(1)(A)(ii),
(iii); 21 U.S.C. § 846. The government also filed a notice that
it intended to seek enhanced penalties under 21 U.S.C. § 851
based on Blackwell’s and Parks’ prior drug-related convictions.
Appellants were convicted after a jury trial. The district
court imposed a life sentence for Blackwell and a 360-month
sentence for Parks. Appellants raise several challenges to
their convictions, and Parks challenges his sentence. We
affirm.
I.
Briefly, the evidence at trial showed the following.
Beginning in 1998-1999, Richard Eckles oversaw the operation of
a cocaine distribution ring near Statesville. Eckles obtained
kilogram-sized quantities of cocaine for distribution by lower-
level dealers and stored the drugs in the homes of various
relatives, including his sister Marlene and his niece Shonika.
3
Eckles used his sister’s home to cook cocaine powder into crack.
Milton Gaines, Shonika’s boyfriend, helped Eckles prepare crack
for distribution.
Eckles used numerous distributors, including Shonika,
Gaines, and Appellant Parks, whom Eckles had known since
childhood. Parks initially bought drugs from Shonika and Gaines
and later made at least four purchases directly from Eckles in
quantities of 4.5 ounces for a total of half of a kilogram.
Parks also purchased 9- to 18-ounce quantities from Robert
Geter, who was also connected to the organization.
Appellant Blackwell was a friend of Parks and spent time
with Parks on a regular basis at Vin Booe’s house, where Parks
and Blackwell sold crack, and at Geter’s house. Blackwell was
also one of Shonika’s customers; he purchased crack from Shonika
in 4.5-ounce quantities. Blackwell also purchased crack
directly from Gaines.
Blackwell and Parks both purchased drugs from and sold
drugs to numerous members of Eckles’ organization. Toney Young,
for example, was one of Eckles’ suppliers. Young also made
trips to Greensboro to buy drugs for Eckles in kilogram and
half-kilogram quantities from Robert Dean. Before making these
trips, Young would pool his money together with Eckles, Parks
and others. Blackwell also added money on one occasion. Young
also sold crack directly to Parks and Blackwell, and he
4
purchased from them on occasion as well. Likewise, Blackwell
and Parks had a similar buyer-seller relationship with various
participants in Eckles’ operation—Oderia Chipley, Deleon Dalton,
Okiera Myers, and Lashon Gaither. Gaither testified that for a
period of time in 2000 and 2001, he purchased crack from
Blackwell through an intermediary on a weekly basis.
Blackwell was not gainfully employed, but he owned several
vehicles equipped with expensive stereo components and other
special features. Officers also seized $5,600 from Blackwell’s
bedroom, as well as $15,000 in cash from Parks’ bedroom.
Moreover, scales with cocaine residue were also seized from the
house where Parks and Blackwell were staying.
At the close of the evidence, the jury found Parks and
Blackwell both guilty on the sole count in the indictment.
Using a special verdict form, the jury also found beyond a
reasonable doubt that 50 grams or more of crack cocaine and 5
kilograms or more of cocaine powder was attributable to
Blackwell and Parks.
II.
Approximately six months after the verdict, Appellants
moved under Rule 33 of the Federal Rules of Criminal Procedure
for a new trial on three grounds, only two of which they pursue
on appeal: (1) that Juror Martin was biased against them and
5
failed to disclose during voir dire that he knew them; and (2)
that the jury was tainted by threatening comments from third
parties to various individual jurors. After an evidentiary
hearing, the district court denied Appellants’ motion for a new
trial. We review a district court’s order granting or denying a
motion for new trial under Rule 33 for an abuse of discretion.
See United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).
Finding no abuse of discretion by the district court, we reject
Appellants’ claim of entitlement to a new trial on both of these
grounds.
Juror Bias. During voir dire, the district court asked the
jury panel as a group whether anyone knew the defendants or the
lawyers. Juror Martin did not respond, thereby silently
indicating that he did not know either Parks or Blackwell. When
questioned individually by the attorneys, Martin assured the
court that he did not know of any reason he could not be fair
and impartial, that he could render a decision based on the
evidence and nothing more, and that he could find Appellants not
guilty if the evidence dictated such a finding.
In conjunction with their motion for a new trial,
Appellants submitted an affidavit from James Allard, an
investigator they hired to interview jurors after the trial
about the effect of the third-party communications. Based on
his investigation, Allard alleged that Juror Martin knew both
6
Parks and Blackwell prior to trial. According to Allard, Martin
had seen them “around town” and knew that they had been tried on
drug-related charges in a previous case but believed the judge
or jury in that trial had “passed it off.” J.A. 1220a. Juror
Martin also allegedly told Allard that while Appellants were
being tried on these prior drug charges, Martin was at the
courthouse on an unrelated matter and saw Appellants laughing
“just like it was a big joke [as if] they knew they were going
to get off.” J.A. 1220b.
At the evidentiary hearing, however, Juror Martin, who did
not recognize Allard in court or recall having spoken to a
defense investigator, contradicted several of the assertions in
the Allard affidavit. For example, Juror Martin testified that
he did not know Appellants personally but that he had seen them
driving on the street before. Juror Martin acknowledged that,
before trial, he had heard co-workers discussing Parks’ and
Blackwell’s involvement in drugs when they learned that Martin
could potentially serve as a juror. Juror Martin denied that he
told Allard that the judge “let off” Appellants in the previous
case or that he saw Appellants laughing and approaching their
drug charges in a cavalier fashion. Finally, Juror Martin
testified that he based his guilty verdict vote only on the
evidence presented at trial and not on any previous out-of-court
knowledge.
7
To obtain a new trial because of purported juror dishonesty
during voir dire, a defendant “must first demonstrate that a
juror failed to answer honestly a material question on voir
dire, and then further show that a correct response would have
provided a valid basis for a challenge for cause.” McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); see
Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002).
Additionally, “[e]ven where . . . the two parts of the McDonough
test have been satisfied, a juror’s bias is only established
under McDonough if the juror’s motives for concealing
information or the reasons that affect the juror’s impartiality
can truly be said to affect the fairness of the trial.” Conaway
v. Polk, 453 F.3d 567, 588 (4th Cir. 2006) (internal quotation
marks and alterations omitted).
The district court assumed for purposes of analysis that
the first McDonough prong was satisfied, i.e., that Martin
“failed to answer honestly a material question on voir dire.”
McDonough, 464 U.S. at 556. Nonetheless, the district court
concluded that there was no actual or implied bias on the part
of Juror Martin such that a “for cause” challenge would have
necessarily succeeded:
At most, Juror Martin knew or had heard something of
Defendants’ . . . reputations in the community.
Martin never had any personal dealings with either of
the Defendants, nor did Martin possess any personal
knowledge about the charged conduct. Martin was
8
consistent in advising Investigator Allard and the
Court that he based his verdict on the evidence
presented during trial as opposed to any extraneous
discussions [he] overheard . . . . Although this
Court likely would have excused Juror Martin for cause
in an abundance of caution, [Appellants] fail to
establish that an implied bias existed that would have
required the Court to excuse Juror Martin for cause.
For these reasons, the Court finds that the second
prong of McDonough is not met.
J.A. 1413-14.
Appellants contend that the district court misapprehended
the McDonough standard because McDonough obligates a defendant
to establish only that the trial court had a valid reason to
dismiss the dishonest juror, not that the trial court would have
been required to dismiss the juror. As this court has observed,
however, a “McDonough claim necessarily fails unless the court
would have committed reversible error-that is, abused its
discretion-in failing to dismiss [a juror] . . . (1) where a per
se rule of disqualification applies; [or] (2) where the court
demonstrates a clear disregard for the actual bias of the
juror.” United States v. Fulks, 454 F.3d 410, 432 (4th Cir.
2006) (internal quotation marks omitted). Appellants have
identified no per se rule of disqualification applicable in
light of Juror Martin’s testimony at the hearing. Moreover, we
have found nothing in our review of the record to establish that
the district court clearly erred in finding no actual bias.
Juror Martin denied stating to Allard that he saw Appellants
9
laughing or that Appellants believed they would be acquitted.
Rather, Juror Martin made clear that he had no personal
knowledge of the Appellants and was only generally aware of
them. Martin specifically denied any knowledge that Appellants
were involved in drug-related activity. Therefore, Appellants
have also failed to establish that the district court clearly
disregarded any actual bias harbored by Juror Martin.
We find no error in the district court’s conclusion that
Appellants were unable to establish the second prong of
McDonough. Accordingly, we reject Appellants’ juror bias claim.
Third-Party Intimidation of Jurors. During trial, various
unknown individuals communicated in a threatening manner to a
few of the jurors as they walked from the courthouse to have
lunch. With Appellants’ consent, the district court questioned
each of the jurors individually on the record. Juror Jolly
stated that two people who had been observing the trial from the
gallery told her that “we, as jurors, if we found a conviction,
we better be ready to deal with the consequences . . . [a]nd
they know who we are.” J.A. 624. Jolly admitted being “very
scared.” J.A. 626. When Jolly told the other jurors what had
happened, she was told not to worry about it.
Juror Stover did not receive any outside communication
directly; he indicated that he had heard that one of the other
jurors had been told to “let them go easy” and that Jolly had
10
appeared to be very upset. Juror Watts and Juror Cooper
subsequently confirmed that while they were eating lunch, some
men dining in the restaurant turned around and told the jurors
to “go easy” on Blackwell and “leave him alone.” The district
court asked Stover, Watts and Cooper if they could still be
fair, and they all responded affirmatively.
Because the district court did not question Jolly
individually regarding whether she could still be fair,
Appellants asked the court bring her back and do so. The
district court declined, but indicated it would ask the jury as
a group, outside the presence of the spectators, “if they are
able to sit and hear the evidence and render a verdict based on
the evidence and the law that the court gives to them.” J.A.
645. Appellants did not object to the court’s proposed group
voir dire.
The district court then questioned the jury as a whole as
follows: “[C]an all the jurors and each of you individually
continue to sit and hear the case, hear the evidence, and render
your verdict according to what you hear from the witness stand
and the exhibits [admitted] into evidence and follow the law
that the court gives to you?” J.A. 651. There were affirmative
nods from the jurors, and no individual juror gave a contrary
indication. Appellants moved for a mistrial, arguing that the
jury had been “hopelessly tainted by the unfortunate
11
circumstances.” J.A. 653. The district court denied the
motion, concluding that the jury “has not been tainted to the
necessary extent to grant such a motion in terms of potential
prejudice to the defendants.” Id.
In their motion for a new trial based on the alleged jury
taint, Appellants relied on Allard’s affidavit, which indicated
that, in post-trial interviews, various jurors stated that Jolly
had been “very upset” by the threats, was “afraid for her life
and her children,” and did not want to be “involved.” J.A.
1220b. The district court, however, concluded that the
additional evidence submitted in support of Appellants’ motion
for a new trial was “not significantly different either in kind
or in scope than the information of improper juror contact that
the Court was presented with during the trial.” J.A. 1416.
Because the district court concluded that the evidence was not
“newly discovered,” it denied the motion as untimely and noted
that it did not have the discretion to disregard the time limits
imposed by Rule 33. See Fed. R. Crim. P. 33(b). On appeal,
Appellants contend that their motion for a new trial was timely
but that even if it was not, the district court should have
exercised its discretion to consider the motion. We disagree.
Under Rule 33(b), “[a]ny motion for a new trial grounded on
newly discovered evidence must be filed within 3 years after the
verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(1).
12
However, “[a]ny motion for a new trial grounded on any reason
other than newly discovered evidence must be filed within 14
days after the verdict or finding of guilty.” Fed. R. Crim. P.
33(b)(2). Because Appellants did not file the motion for a new
trial until several months after their verdicts, they were
required to present newly discovered evidence in support of
their motion.
“Newly discovered evidence” under Rule 33(b) means evidence
that, in fact, was discovered since the conclusion of the trial.
See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989);
United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987).
Nothing submitted by Appellants in support of the motion for a
new trial could be considered “newly discovered.” During the
court’s in-chambers voir dire of Juror Jolly, Jolly admitted
that she had been very frightened and intimidated by the
comments made to her. Other jurors confirmed then that Juror
Jolly was upset and crying. The district court and the parties
were aware of this information during trial, and the scant
additional details added by Appellants’ post-trial evidence did
not reveal anything new about the effect of the communications
to Jolly.
Furthermore, Appellants’ purported newly discovered
evidence is not the type of evidence that can support a Rule 33
motion. “[A] Rule 33 motion is designed to rectify factual
13
injustice, not to correct legal error.” United States v. Evans,
224 F.3d 670, 674 (7th Cir. 2000). Thus, “a Rule 33 motion
based upon ‘newly discovered evidence’ is limited to where the
newly discovered evidence relates to the elements of the crime
charged.” United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir.
1994); see United States v. Rollins, 607 F.3d 500, 504 (7th Cir.
2010) (explaining that “Rule 33 deals with contentions that
evidence discovered after trial shows that the accused is
innocent”). As we have stated, a new trial should be granted
under Rule 33 only if “the evidence [would] probably result in
acquittal at a new trial.” Chavis, 880 F.2d at 793.
Finally, we reject Appellants’ argument that the district
court committed error by refusing to consider an untimely motion
under Rule 33(b)(2). Although the district court mistakenly
indicated that an untimely motion under Rule 33 deprived it of
jurisdiction, see Rice v. Rivera, 617 F.3d 802, 809 (4th Cir.
2010) (per curiam), Appellants have failed to present any
circumstances suggesting that their filing was delayed by
“excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).
Accordingly, we affirm the district court’s denial of
Appellants’ motion for a new trial as untimely.
14
III.
A.
Appellants raise three other issues. First, Appellants
challenge the district court’s decision to admit under Federal
Rule of Evidence 1006 a chart offered by the government as a
summary of telephone record evidence showing that Parks and
Blackwell were connected to virtually every participant in
Eckles’ drug distribution operation. We apply an abuse-of-
discretion standard to a district court’s decision to admit a
summary chart under Rule 1006. See United States v. Foley, 598
F.2d 1323, 1338 (4th Cir. 1979).
The case agent explained that “the phone chart . . . was
compiled [using] . . . probably over a hundred thousand
telephone calls reviewed in this case” and that use of the chart
would assist him in explaining the telephone evidence to the
jury. J.A. 1022. Essentially, the chart consisted of a circle
of the names and numbers of other participants in the Eckles
organization, all connected with arrows pointing to Parks, whose
name was at the center of the circle. Blackwell’s name appeared
at the bottom center of the chart.
During its deliberations, the jury asked to see the chart.
Appellants objected, arguing that the chart was inaccurate and
that “the evidence is the testimony, not the chart[],” which was
“introduced merely as an aid to the jury.” J.A. 1186. The
15
district court overruled Appellants’ objection and sent the
chart to the jury room with a cautionary instruction reminding
the jury that “charts and summaries . . . are only as valid as
the underlying evidence tending to support them. . . . [I]t is
that evidence on which you must rely.” J.A. 1187.
Federal Rule of Evidence 1006 provides as follows:
The contents of voluminous writings, recordings,
or photographs which cannot conveniently be examined
in court may be presented in the form of a chart,
summary, or calculation. The originals, or
duplicates, shall be made available for examination or
copying, or both, by other parties at reasonable time
and place. The court may order that they be produced
in court.
Fed. R. Evid. 1006. Rule 1006, therefore, permits the admission
of “charts into evidence as a surrogate for underlying
voluminous records”; its purpose “is to reduce the volume of
written documents that are introduced into evidence by allowing
in evidence accurate derivatives from the voluminous documents.”
United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004).
Thus, under Rule 1006, the summary chart itself may come into
evidence provided it is “an accurate compilation of the
voluminous records sought to be summarized” and the underlying
records are “otherwise . . . admissible in evidence.” Id. The
underlying documents themselves, however, do not need to be
admitted for a Rule 1006 chart to come into evidence. See id.
at 272-73.
16
We conclude that the district court acted well within its
discretion in admitting the phone records chart. Appellants do
not dispute that the underlying telephone records summarized in
the chart were too voluminous to be conveniently examined in
court, nor do they dispute that the telephone records were
admissible. Appellants argue only that the chart summarizing
the phone records was not sufficiently accurate as it listed
“only a fraction of the 100,000 call records entered into
evidence.” Brief of Appellants at 29. Similarly, Appellants
suggested at trial that the chart was misleading in its central
placement of Parks’ name. Rule 1006, however, “afford[s] a
process to test the accuracy of the chart’s summarization.”
Janati, 374 F.3d at 273. Although the underlying evidence need
not be introduced into evidence, Rule 1006 “require[s] that the
documents be made available to the opposing party for
examination and copying at a reasonable time and place” and
permits the district court to order “that the underlying
documents actually be brought to court.” Id. Appellants do not
suggest that they were deprived of the opportunity to examine
the underlying records or challenge the accuracy of the summary
in court. Accordingly, this argument fails. See United States
v. Strissel, 920 F.2d 1162, 1164 (4th Cir. 1990) (per curiam)
(rejecting argument that charts were based on inaccurate
information and were therefore inadmissible because “the
17
underlying evidence [was] admissible and available to the
opponent so that a proper cross-examination [could] be had”).
Appellants also challenge the admission of a chart
illustrating the organization of Eckles’ drug distribution
conspiracy. The case agent prepared the chart as an aid to the
jury based on trial testimony that had already been presented
from various members of the conspiracy and others. Even
assuming the district court committed error, and thereby abused
its discretion, see United States v. Delfino, 510 F.3d 468, 470
(4th Cir. 2007) (explaining that a district court abuses its
discretion when it “commits an error of law”), by admitting the
organizational chart into evidence and sending it back to the
jury room, we nevertheless conclude that any such error was
harmless. The evidence connecting both Parks and Blackwell to
the conspiracy was overwhelming; indeed, Appellants do not
challenge the sufficiency of the evidence on appeal. We agree
with the government that the prejudicial effect of the
organizational chart, if any, would have been minimal in light
of the substantial evidence introduced against Appellants. The
chart did not assign a role or title within the Eckles
organization to either Parks or Blackwell, nor did it purport to
summarize alleged drug transactions by Appellants or the alleged
amounts involved. Rather, the chart used lines with arrows to
18
show Appellants were acquainted with or were somehow connected
to the other conspiracy members.
Additionally, the district court’s instructions to the jury
further minimized any prejudicial effect, explaining that “[a]
chart and summary is not in itself evidence or proof of any
fact” and that the chart “created in preparation for this
litigation” merely offered “a party’s interpretation of the
facts in the case.” J.A. 1103. The court twice cautioned
jurors to “disregard [the] chart entirely” if they found the
chart to be inaccurate or untruthful, J.A. 1103, and to base
their decision on the underlying evidence. Accordingly, we
reject Appellants’ argument that the district court committed
reversible error in admitting the charts.
B.
Appellants next raise a Confrontation Clause challenge to
the testimony of Clifford Watkins. Watkins testified that he
was in the drug business with Leonard Clement and that Watkins
met Parks through Clement. Watkins, at the behest of the
police, recorded a conversation with Clement in which Clement
talked about getting money from “Bam”—who Watkins identified as
Parks—to purchase drugs. The district court admitted the audio
tape and Watkins’ related testimony under Federal Rule of
Evidence 801(d)(2)(E). Clement did not testify at trial.
19
The Confrontation Clause of the Sixth Amendment bars
“admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In order to
determine if a statement was “testimonial” and therefore
excludable under the Confrontation Clause, we ask “whether a
reasonable person in the declarant’s position would have
expected his statements to be used at trial-that is, whether the
declarant would have expected or intended to ‘bear witness’
against another in a later proceeding.” United States v.
Udeozor, 515 F.3d 260, 268 (4th Cir. 2008); see United States v.
Jordan, 509 F.3d 191, 201 (4th Cir. 2007) (“[T]he critical
Crawford issue here is whether [the declarant], at the time she
made her statements . . . , reasonably believed these statements
would be later used at trial.”). We conclude that a reasonable
person in Clement’s position would not have expected his
comments to be used subsequently at trial given that he did not
know he was being recorded by his associate Watkins. See United
States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008) (“A
statement unwittingly made to a confidential informant and
recorded by the government is not ‘testimonial’ for
Confrontation Clause purposes.”) Therefore, Clement’s
20
statements were not “testimonial” within the meaning of the
Confrontation Clause. *
C.
Finally, Appellant Parks argues that the district court
committed procedural error in calculating his Guidelines
sentencing range by relying on unsupported drug amounts. The
district court adopted the recommendation of the presentence
report (PSR) that 2.6 kilograms of crack was attributable to
Parks for a base offense level of 36.
In reviewing a sentence, we must first ensure that the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
Guidelines range. Gall v. United States, 552 U.S. 38, 51
(2007). Reliance on “clearly erroneous facts” will constitute
“significant procedural error.” Id. However, procedural errors
committed at sentencing are subject to harmlessness review. See
United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010).
Procedural error is harmless if we can say with “fair assurance”
that the district court’s explicit consideration of the
*
To the extent that Appellants challenge the district
court’s admission of Watkins’ testimony under the co-conspirator
exception to the hearsay rule, see Fed. R. Evid. 801(d)(2)(E),
we disagree. There was ample evidence tying Clement to Parks,
including phone records, and Clement’s statements were clearly
in furtherance of the conspiracy. See United States v. Neal, 78
F.3d 901, 904-05 (4th Cir. 1996).
21
appropriate facts would not have affected the sentence imposed.
Id. (internal quotation marks omitted).
The record, including trial testimony from government
witnesses and the sentencing testimony of Agent Ramsey, provides
sufficient support for the court’s drug quantity finding.
Eckles testified that he supplied Parks with 4.5 ounces of
cocaine powder on 4 occasions; the evidence suggested Parks
cooked the 18 ounces into cocaine base. William Barber, Eckles
nephew, testified that he saw Parks twice receive crack from
Eckles -- 9 ounces one time and 18 ounces on the other. Young
testified that from 2002-2003, he delivered 18 ounces of crack
to Parks. Gaines testified that he gave Parks at least 2.5
ounces of cocaine powder on about 10 occasions, which was cooked
into cocaine base. And Randall Stovall, a distributor for
Eckles, testified that he gave Parks at least 4.5 to 9 ounces of
crack. Based on the testimony of Eckles and Barber attributing
45 ounces or 1275.75 grams of crack to Parks; the testimony of
Young attributing 18 ounces or 510.3 grams of crack; the
testimony of Gaines attributing 25 ounces or 708.75 grams of
crack; and the testimony of Stovall attributing 4 grams of
crack, the district court arrived at a total of 2608.2 grams, or
2.6 kilograms, of crack cocaine attributable to Parks. There
was additional evidence suggesting that the total amount found
by the district court was a conservative figure. Accordingly,
22
we conclude that the district court did not commit clear error
in finding the drug quantity attributable to Parks for
sentencing purposes.
IV.
For the foregoing reasons, the convictions and sentences of
Appellants are hereby
AFFIRMED.
23
|
784 F.2d 467
54 USLW 2438, 12 Media L. Rep. 1753
The FIRST AMENDMENT COALITION, Frederick J. Huysman andDaniel R. Biddle, Appellants in 84-1164,v.JUDICIAL INQUIRY AND REVIEW BOARD, Appellant in 84-1153.
Nos. 84-1153, 84-1164.
United States Court of Appeals,Third Circuit.
Argued Jan. 14, 1985.Reargued In Banc Nov. 12, 1985.Decided Feb. 14, 1986.As Amended Feb. 27, 1986.
Samuel E. Klein (argued), Katherine Hatton, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for First Amendment Coalition, Frederick J. Huysman, and Daniel R. Biddle.
Perry S. Bechtle (argued), Conrad O. Kattner, LaBrum & Doak, Philadelphia, Pa., for Judicial Inquiry and Review Bd.
Argued Jan. 14, 1985
Before ADAMS, WEIS and HARRIS,* JJ.
Reargued In Banc Nov. 12, 1985
Before ADAMS, Acting Chief Judge, and SEITZ, GIBBONS, JAMES HUNTER, III, WEIS, GARTH, A. LEON HIGGINBOTHAM, Jr., SLOVITER, BECKER, STAPLETON, and MANSMANN, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
The Pennsylvania Constitution provides that public access to records of the Judicial Inquiry and Review Board is allowed only if it recommends that the state supreme court impose discipline on a judge or member of the minor judiciary. The district court found that the federal constitution requires public disclosure by the Board in every instance in which it conducts a formal hearing even if no disciplinary action is recommended. We conclude that the Pennsylvania provision does not violate the federal constitution. In addition, we find that the Board's order banning witnesses from disclosing their own testimony is overbroad. Accordingly, the district court's order will be vacated and the case remanded for the entry of a new decree.
Plaintiffs are Frederick Huysman, a reporter for the Pittsburgh Post-Gazette; Daniel Biddle, a reporter for the Philadelphia Inquirer; and the First Amendment Coalition, a nonprofit corporation comprising newspapers, broadcasters, and media organizations. Defendant is the Pennsylvania Judicial Inquiry and Review Board which receives, investigates, and processes complaints of misconduct against members of the state judiciary.
Plaintiffs commenced the action in February 1983 seeking to obtain access to Board proceedings. They alleged that the Board was conducting private hearings on charges of misconduct which it had lodged against Associate Justice Larsen of the Pennsylvania Supreme Court after receiving a complaint and conducting a formal investigation. In accordance with state constitutional and statutory provisions, as well as the Board's procedural rules, the public was denied access to the proceedings. During the hearings, plaintiffs Huysman and Biddle, who had been subpoenaed as witnesses, were prohibited "from disclosing in any way their own testimony or appearance before the Board." Plaintiffs contended that the state's confidentiality provision should be declared in violation of the First and Fourteenth Amendments of the United States Constitution.
Within a week after the suit was filed, the Philadelphia Inquirer, one of the Coalition members, stated in an editorial that it had obtained a full transcript of the proceedings before the Board and began to publish purported verbatim excerpts. At about the same time, the Board dismissed the charges against Justice Larsen without recommending discipline.
1
The Board's prior practice had been to file a transcript of formal proceedings with the state supreme court in some cases in which the charges were dismissed, as well as in all those in which discipline had been proposed. After receiving an opinion from counsel, however, the Board determined that under the state constitution the record was to be sent to the court, and thus made public, only in those cases where discipline was recommended. Consequently, the Larsen record remained sealed.
2
The First Amendment Coalition then filed a petition for mandamus with the state supreme court asking that it compel the Board to file the record with the court. The petition was denied, the court stating that it was prohibited from granting the request because the Board had not suggested suspension, removal, discipline or retirement. In the absence of a recommendation by the Board there was "no constitutional authority for [the] court to review the record and act. The matter is constitutionally closed." First Amendment Coalition v. Judicial Inquiry and Review Bd., 501 Pa. 129, 133, 460 A.2d 722, 724 (1983).
3
Following these developments, the district court received evidence on the history and practices of the Board. No material issues of fact were in dispute, and the plaintiffs' motion for summary judgment was granted. Preliminarily, the court rejected the Board's contention that the case was mooted by the Inquirer's publication of the Larsen transcripts. Observing that the Inquirer had "not shared its riches" with fellow members of the Coalition, the court found that the matter still presented a live dispute as to them. Moreover, the claims fell into the category of those capable of repetition yet evading review.
4
After surveying decisional law on the First Amendment and a right of access, the district court concluded that "a restriction on public and press access can be sustained, but only to the extent that it demonstrably advances significant governmental interests." First Amendment Coalition v. Judicial Inquiry and Review Bd., 579 F.Supp. 192, 211 (E.D.Pa.1984). Noting that only a fraction of the Board's investigations result in formal charges,1 the court found a substantial state interest "in protecting accused judges, and the judiciary itself, from the public hearing of charges, most of which will evaporate." Id. at 214. Consequently, the Coalition's "insistence on access to all charges other than those which are 'obviously unfounded or frivolous' is not persuasive." Id.
5
However, in instances where the Board has preferred formal charges, the court concluded that denial of access impairs the public's opportunity to appraise the work of the Board, the standards of judicial conduct it applies, and the consistency of enforcement.
6
Acknowledging the "trauma of public accusation," one which is "greater for an official who, due to the special constraints of the bench, is largely disabled from seeking public support," the court found a "tension between the identified public interest and the identified cost." Id. at 215. "The way of maximizing these twin interests is to permit access to all cases in which the Board prefers formal charges--but to defer the time of access until the Board's filing with the Supreme Court of a transcript which fully records the Board's proceedings." Id. As a result, the state constitutional requirement was modified by the district court's directive that the Board make public, on disposition, the record of all proceedings in which it had filed formal charges.
7
In discussing the contentions of the individual plaintiffs, the district court recognized a valid state interest in insisting on witness secrecy. Id. at 217. Accordingly, the court declared that the Board may "impose confidentiality upon any witness who appears and testifies ... concerning the fact of the witness' appearance and the substance of any testimony until such time as the record of the Board's proceedings are made available to the public."
8
All parties have appealed. Plaintiffs contend that the court erred in allowing access only to a transcript at the completion of formal proceedings and that the restrictions on nonparty witnesses violate the constitutional guarantee of free speech. The Board argues that the confidentiality requirement is appropriate to the Board's role, has only slight impact on news-gathering, and is consistent with federal constitutional standards.
I.
9
In response to the need for modernization of its constitution, Pennsylvania called a convention in 1968. Although a number of changes in the organization of state government were proposed, the principal item presented to the delegates was the preparation of a new judiciary article. The convention ultimately submitted a proposal, designated Article V of the state constitution, governing the selection, retention, and tenure of judicial officers.
10
One of the convention's most valuable contributions to that Article was the establishment of a Judicial Inquiry and Review Board, a constitutionally independent body to oversee the conduct of the state's judiciary. The essential elements of that proposal had been recommended to the Convention's Preparatory Committee in 1967 by the Pennsylvania Bar Association. That presentation expressed dissatisfaction with the cumbersome method of impeachment as the sole procedure for grappling with the problems of the aged, infirm, irascible, or, in rare instances, corrupt judge. The Bar advocated a new method of solving these problems, including measures short of removal from office.
11
Favorable comments were received on the operation of the California Commission on Judicial Qualifications, which had been established some years earlier. Speaking on behalf of the state bar association, Bernard G. Segal, Esquire, devoted special attention to the fact that a number of California judges had voluntarily resigned or retired while under investigation by the Commission. He also remarked that under California practice when a complaint is filed with the Commission, its "investigations, deliberations, and conclusions on the case are completely secret, except, of course, if the Commission's decision is appealed to the Supreme Court." Statement of Bernard G. Segal on the Proposed Judiciary Article before the Preparatory Committee for the Pennsylvania Constitutional Convention.
12
Dean Laub of the Dickinson School of Law, a former judge, wrote an article listing the arguments for and against the features of the various plans proposed. He referred to the California plan noting, under that state's procedure "confidentiality is maintained until the matter is referred to the Supreme Court for decision." As a possible drawback to the California system, he listed the potential for abuse in the investigative power conferred on an independent agency. He also discussed criticism of the plan followed in New York because its proceedings had no assurance of confidentiality. Laub, Issues Before the Judiciary Committee of the Pennsylvania Constitutional Convention, 39 Pa.B.A.Q. 390 (1968).
13
Materials submitted to the delegates discussed in even greater detail the pros and cons of confidentiality in Board proceedings. Removal, Suspension, and Discipline of Judges, reprinted in, The Pennsylvania Constitutional Convention, Reference Manual No. 5: The Judiciary. See also Woodside, Pennsylvania Constitutional Law, 433-38 (1985) (The author is a former Pennsylvania appellate judge and was a delegate to the convention).
14
In presenting the plan for a Judicial Inquiry and Review Board to the convention for a vote, William W. Scranton, Chairman of the Convention's Judiciary Committee and a former governor of Pennsylvania, urged adoption. He stated that if the proposal were approved it would be "a tremendous step forward for the people of Pennsylvania as well as for the judges of same. It protects the judges and at the same time makes changes where changes are necessary in the finest kind of way." Journal of the Constitutional Convention, February 29, 1968, page 1374. Review of the convention materials thus demonstrates that the question of confidentiality was actively considered in the preparation of the constitutional amendment.
15
As finally adopted by affirmative vote of the people of the state, the constitution provides for a Board composed of five judges, two lawyers, and two laymen. It receives complaints or reports and makes preliminary investigations. After further examination, the Board may order a hearing and direct the attendance and testimony of witnesses. "If after hearing, the Board finds good cause therefor, it shall recommend to the Supreme Court the suspension, removal, discipline, or compulsory retirement of the justice or judge." Pa. Const. Art. V, Sec. 18(g).
16
The state supreme court reviews the Board's record and may receive additional evidence. Following that, the court may order discipline as recommended by the Board, may impose a different measure of discipline, or may exonerate the accused judge. "All papers filed with and proceedings before the Board shall be confidential but upon being filed by the Board with the Supreme Court, the record shall lose its confidential character. The filing of papers with and the giving of testimony before the Board shall be privileged." Pa. Const. Art. V, Sec. 18(h).
17
Implementing legislation consistent with the constitutional language was enacted and codified at 42 Pa.Cons.Stat.Ann. Sec. 2101 et seq. (Purdon 1981). In accordance with a constitutional directive, the state supreme court drafted rules of procedure for the Board.
II.
18
Certain features of this case discussed by the parties in their briefs play no part in today's decision. Initially, we note that although the Board's earlier practice was to file its record with the state court in some cases where the charges were dismissed, it has now been authoritatively established that the state constitution permits filing only where discipline has been recommended. The Coalition does not now contend that the Board's prior practice was consistent with the state constitution. The district court recognized the state's construction of its constitutional provision as binding on the federal courts, and we agree with that determination.
19
Additionally, it should be apparent that since there has been publication of substantial portions of the Larsen hearings, the merits of that proceeding are not particularly pertinent here. The case before us is not legally moot, but realistically what is at stake is the Board's procedure in future cases.
20
The obvious must also be stated. The Coalition's claims are based on an alleged right of access, not a right of publication. Although both have their roots in the First Amendment, these principles are doctrinally discrete, and precedents in one area may not be indiscriminately applied to the other. In general, the right of publication is the broader of the two, and in most instances, publication may not be constitutionally prohibited even though access to the particular information may properly be denied. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam).
21
The issue before us is not whether the First Amendment prohibits the state from barring public observation of judicial disciplinary proceedings at all stages. Pennsylvania has provided for disclosure but has limited it to the situation in which discipline has been recommended and the record has been filed with the court. Consequently, we assume, but do not decide, that there is a constitutional right of access to disciplinary proceedings at some stage.
22
In argument before the court, counsel for the Coalition conceded that "the most difficult issue is the issue of where in the process the right of access attaches and we have struggled with this issue." Indicative of that difficulty is the Coalition's retreat from its original position that access was required to "all proceedings on charges which the Board has determined not to be frivolous or obviously unfounded." The plaintiffs' brief at 6. That would have permitted disclosure of informal action by the Board such as private reprimands and requests for resignations in lieu of formal hearings. The Coalition's present contention is that contemporaneous access should commence at the point where the Board issues formal charges against a judge.
23
Although we assume a right of access, it does not attach at the same time it might in certain other contexts and at the point the Coalition urges on us here. By analogy to the cases establishing a First Amendment right of access to criminal trials, see, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and this court's decision to extend the rationale to civil trials, Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984), the Coalition maintains that where a constitutional right of access is found to exist, a "presumption of openness" is created. This presumption, the Coalition contends, places the burden on the state to justify restrictions on access by showing a "compelling governmental interest [which the restriction] is narrowly tailored to serve." Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982).
24
All rights of access are not co-extensive, however, and some may be granted at different stages than others. In assuming a right of access, we need not postulate a span as extensive as that in civil and criminal trials as such, but rather may be guided by the unique history and function of the Judicial Review Board.
25
Richmond Newspapers and the cases decided in its wake stressed the tradition of open trials in England and then later in colonial America. Since the Bill of Rights had been adopted "against the backdrop of the long history of trials being presumptively open," 448 U.S. at 575, 100 S.Ct. at 2826, the Court concluded that the First Amendment prohibits the "government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted." Id. at 576, 100 S.Ct. at 2827.
26
But the cases defining a right of access to trials are, at best, of limited usefulness in the context of the fundamentally different procedures of judicial disciplinary boards. These administrative proceedings, unlike conventional criminal and civil trials, do not have a long history of openness. Recognizing this fact, the Coalition points to time honored judicial removal in open impeachment hearings.
27
Had the state constitutional convention acted to replace traditional impeachment with a substitute vehicle like the Judicial Inquiry and Review Board, a closer question of public access to the successor proceedings would be presented. But it is clear that the Board's functions are intended to supplement rather than replace the historical methods of judicial discipline: impeachment and removal for conviction of a crime. Pa. Const. Art. V, Sec. 18(h), 18(1); see also Judicial Discipline, 84 Dick.L.Rev. 447, 449-52 (1980). It was largely the recognition that these traditional methods are cumbersome and ineffective, partly because of their openness, that spurred the constitutional convention to conceive the new judicial disciplinary procedure.
28
Against this background, the "presumption of openness" gleaned from the history of criminal trials surveyed in Richmond Newspapers lacks force. Rather, in judicial disciplinary proceedings, what tradition there is, favors public access only at a later stage in the process. A temporally based right is no stranger to the law. For example, tradition supports the secrecy of the grand jury, the entity in the criminal justice system to which the Board is most akin. Similarly, sidebar conferences between lawyers and judges at trial are contemporaneously confidential although they may later appear as part of the transcript. See United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir.1977).
29
In choosing the point at which formal charges are filed as the stage when proceedings should become public, the Coalition uses an analogy with traditional criminal procedures beginning with the indictment. It would treat formal proceedings before the Board as the equivalent of the criminal pre-trial and trial proceedings. This analogy is faulty because the Board cannot impose, but only recommend, punishment, and in that sense its functions are similar to those of the grand jury. Only the state supreme court has the power to discipline just as in the criminal field only a court has the power to sentence.
30
It may be said that the Board's recommendation has the effect of an indictment, not a conviction. The traditional notion of protection for a non-indicted target applies equally well in the disciplinary setting. That the Board's rules grant the accused more extensive procedural rights than are allotted to the subject of a grand jury investigation does not undermine the analogy.
31
Forcing judicial review proceedings into an older criminal procedural mold would have a stifling effect on a state's ability to use creative methods in solving its problems. It is quite uncertain whether the state would have chosen a judicial disciplinary program or have been able to implement one in the absence of the confidentiality provision. The Coalition has failed to show that the right of access it urges is so compelling as to justify the restriction on the state's freedom of choice.
32
The Coalition goes beyond tradition when it argues that the "structural values" of the First Amendment are served by subjecting the proceedings of the Board to greater public access. In his concurring opinion in Richmond Newspapers, Justice Brennan wrote that the First Amendment embodied more than a commitment to free expression for its own sake but included a "structural" role in government. Falling within this concept is the notion that the public must be properly informed in order for a democracy to survive.
33
The Coalition contends that the Board, in carrying out its assignments, is performing a governmental function. The public has an interest in information about the conduct of its judiciary and consequently is entitled to assurance that the Board is properly discharging its duties. As we recently noted in United States v. Smith (Appeal of the Patriot News Co.), 776 F.2d 1104 (3d Cir.1985), structural values have been a consideration in the decisions granting a right of access to trial, and even some pre-trial proceedings. See United States v. Criden, 675 F.2d 550 (3d Cir.1982).
34
The "structural" argument alone cannot carry the day, however, because it has not developed independent of, and unrelated to, historical antecedents. The authority relied on by plaintiffs must be viewed in the context in which it was decided--the trial process which has a long common law tradition of openness. For a court to accept the structural considerations of the First Amendment without heed to the circumstances in which they are invoked would lead to an unjustifiably expansive interpretation. See In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1332 (D.C.Cir.1985). Justice Brennan, an advocate of the structural theory of the First Amendment, has cautioned that "the stretch of this protection is theoretically endless." Richmond Newspapers, 448 U.S. at 588, 100 S.Ct. at 2833 (concurring opinion). Consequently, the right to know "must be invoked with discrimination and temperance." Id.
35
The structural arguments, of course, are legitimate constitutional underpinnings for the right of publication, but they do not mandate access. Chief Justice Warren must have envisioned such contentions when he wrote:
36
"There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information."
37
Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-81, 14 L.Ed.2d 179 (1965). The Supreme Court has applied this limitation even in cases where the public does have an interest in gaining information--for example, attempts to establish a special right of access to prisons have been rebuffed. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).2
38
Even in the litigation setting, the right of access is subject to limitations. In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), the Supreme Court stated that "pretrial depositions and interrogatories are not public components of a civil trial," and accordingly, "restraints placed on discovered, but not yet admitted information are not a restriction on a traditionally public source of information." 104 S.Ct. at 2207-08. It bears noting that the Seattle Times case upheld a trial court ban on dissemination of information, a form of prior restraint which is not often permitted.
39
The Coalition does not now contend that all of the Board's activity should be open to the public. If the access question is envisioned as a line stretching from the extreme of completely open proceedings to completely closed ones, we find that each party has taken a position somewhere in the center. The battle here is not at the extremes, but in the middle ground.
40
The parties have staked out their positions in that area, the Board arguing that access is proper only as mandated by the state constitution, and the Coalition advocating the point at which it believes that the First Amendment requires access. The Board's demarcation point is specific and fixed, whereas the Coalition's position is somewhat selective and must rely on rather vaguely defined concepts in decisional law.
41
As noted earlier, the delegates to the state constitutional convention confronted the question of when access should begin. Their resolution, which is presently under attack, was arrived at with full knowledge of the competing concerns.
42
The plaintiffs' contentions appear to be based primarily on the desirability of granting earlier access, an argument that influenced some nineteen states. But Pennsylvania and twenty-one other states have deliberately chosen to fix the point of access at a later stage.3
43
In the circumstances of this case, we find that the presumption of validity attaching to state legislative and constitutional provisions weighs heavy. See Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). This presumption does not relieve the courts of their obligation to make an independent inquiry when First Amendment rights are at stake, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978), but it does require that the state's determination be upheld unless it is found to transgress a clear constitutional prohibition. In addressing a claim of access, the Chief Justice admonished the courts not to "confuse what is 'good,' 'desirable,' or 'expedient' with what is constitutionally commanded by the First Amendment. To do so is to trivialize constitutional adjudication." Houchins v. KQED, Inc., 438 U.S. 1, 13, 98 S.Ct. 2588, 2596, 57 L.Ed.2d 553 (1978) (Opinion of Burger, C.J.).
44
The Coalition's burden is particularly heavy here because the concerns of access have been accommodated up to the point that the state has determined them to be outweighed by more compelling interests. In his oft-cited lecture, "Or of the Press," 26 Hast.L.J. 631, 636 (1975), Justice Stewart said,
45
"There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy [citing Pell v. Procunier ]. The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.
46
"The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American Society."
47
In this case, we have a state constitutional provision, precisely addressing the point, arrived at as a result of the tug and pull of political forces. Federal courts should not overturn a state's evaluation of structural concerns in the absence of egregious circumstances. Here we are not presented with the fiat of a single official acting in a discretionary fashion, but with a constitutional provision enacted by a state in conformity with Article IV, Sec. 4 of the federal constitution guaranteeing each state a republican form of government. See Bauers v. Heisel, 361 F.2d 581, 588-89 (3d Cir.1966).
48
The notion that the effectiveness of judicial disciplinary boards depends to a large extent on confidentiality is not unique to Pennsylvania; the idea has been almost universally accepted. In Landmark Communications, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), the Supreme Court listed four advantages of confidentiality:
49
1. Encouraging the filing of complaints;
50
2. Protecting judges from unwarranted complaints;
51
3. Maintaining confidence in the judiciary by avoiding premature announcement of groundless complaints; and
52
4. Facilitating the work of a commission by giving it flexibility to accomplish its mission through voluntary retirement or resignation of offending judges.4
53
See also Mosk v. Superior Ct., 25 Cal.3d 474, 159 Cal.Rptr. 494, 601 P.2d 1030 (1979).
54
The possibility that judges would be harassed and the judicial system disrupted in the event of open hearings before a judicial inquiry board has not been an illusory concern. California, the first to adopt a commission-form of judicial discipline, included a constitutional provision assuring confidentiality of proceedings until filing with the state supreme court. The California Commission provided the model for the Pennsylvania Board, including its confidentiality requirements. See Frankel, Removal of Judges: California Tackles an Old Problem, 49 A.B.A.J. 166 (1963). The intuitive wisdom of that concept was confirmed by the near disaster experienced by the California Supreme Court when confidentiality concerns were brushed aside and charges against its Chief Justice were heard in public. See Cameron, The California Supreme Court Hearings--a Tragedy That Should and Could Have Been Avoided, 8 Hast. Const.L.Q. 11 (1980); Mosk, Chilling Judicial Independence--The California Experience, 3 West.N.Eng.L.R. 1 (1980); Tribe, Trying California's Judges on Television: Open Government or Judicial Intimidation?, 65 A.B.A.J. 1175, 1178 (1979) ("Gallup Poll Justice at its Worst").
55
In his article, Professor Tribe describes confidentiality in disciplinary proceedings as "[p]rotection vitally needed to encourage collegiality, candor, and courage--both political and intellectual--protection needed not only for the benefit of judges but for the benefit of society as a whole." 65 ABA J. 1179. The effective operation of the judiciary is a matter of serious concern, one which may suffer from too much openness.
56
It is noteworthy too that the disciplinary procedures for the federal judiciary enacted by Congress provide for confidentiality. See 28 U.S.C. Sec. 372(c)(14). The Senate Committee explained its belief "that the establishment of a confidentiality provision will avoid possible premature injury to the reputation of a judge," and that specified measures ought to be taken in "protecting the judge from malicious publicity." See S.Rep. No. 362, 96th Cong.2d Sess. 16 reprinted in 1980 U.S.Code Cong. & Ad.News 4315, 4330. Approval of the rationale employed by the Coalition here would inescapably lead to a holding that the confidentiality provision of the federal statute is also unconstitutional. See also Rule 10J, Judicial Council of the Third Circuit. Because the federal statute is not at issue here, however, we need not pursue discussion of that ramification.
57
The district court observed that there is no special federal constitutional protection from public criticism given to judges. That is undoubtedly true in the publication context, but nothing in the state constitutional provision bars dissemination of information which the press has received. Indeed, the publication of the Larsen transcript in this case illustrates that point. See also Landmark.
58
Nevertheless, the state has demonstrated a substantial interest in preserving limited confidentiality. That interest rests not only on the reputation of the judiciary as an institution and judges who have been accused but not proved culpable, but also on the need for flexibility so that the Board may efficiently accomplish its purpose.
59
In practice, it has been demonstrated that one of the most effective methods of meeting the problem of the unfit judge is to remove him from the bench by voluntary retirement or resignation. Experience has shown that some judges would prefer to resign rather than undergo complete formal hearings. Pennsylvania has concluded that if the confidentiality provisions were not in effect, the accused judge might feel compelled to seek vindication by requiring a hearing.5 In the state's view the public would lose more than it would gain in this eventuality.
60
Nor is it a valid objection to say that the confidentiality provision gives more favored treatment to judges than other governmental officials. The reality is that only judges are subjected to such disciplinary procedures; rather than being favored they have been singled out for more rigid oversight than their counterparts in the legislative and executive branches.6 See generally Markey, The Delicate Dichotomies of Judicial Ethics, 101 F.R.D. 373.
61
In summary, even assuming a right of access, an issue we specifically do not decide, determination of the point at which it becomes overriding requires a balancing of the state's concerns against those of public disclosure. The state's interests are weighty, its resolution of a serious problem is not unreasonable, and the Coalition's claim, although presenting arguably desirable alternatives, is not supported by historical antecedents. In these circumstances, the Coalition has failed to demonstrate the unconstitutionality of the state procedure, and the district court's finding of a First Amendment violation is not warranted.
III
62
The state constitution and the enabling statute both provide that "papers filed with and proceedings before the Board shall be confidential." The Board's rules of procedure state that it is regarded as contempt of court "for a person subpoenaed to in any way breach the confidentiality of the investigation. All participants shall conduct themselves so as to maintain the confidentiality of the proceeding." The subpoena served on the individual plaintiffs contained the following statement: "By direction of the Constitution of Pennsylvania these proceedings are confidential and any disclosure outside the proceedings shall constitute contempt and be actionable."
63
When the reporters appeared before the Board they moved to quash the subpoenas but this request was denied. A motion for an expedited appeal to the state supreme court also failed. When plaintiff Biddle appeared before the Board, his counsel remarked
64
"MR. KLEIN: And it is the Board's position, I take it, that Mr. Biddle is precluded from disclosing in any way his own testimony or appearance before this Board.
65
[Board Member]
JUDGE MIRARCHI: Absolutely
66
[Board Member]
67
MR. RACKOFF: Absolutely."
68
The district court acknowledged that the Board's mandate was a form of prior restraint but found the order "justified to the extent that the confidentiality rule is justified." 579 F.Supp. at 217. The court determined that there was a valid state interest in insisting on witness secrecy until the time the Board's record was filed with the state supreme court.
69
The claim of the individual plaintiffs in this phase of the case is based on the broader right of free speech, not simply access. Consequently, we must be less deferential to state interests. Any prior restraint on expression comes to the court with a presumption of unconstitutionality.7 Organization for a Better Austin v. Keefe, 402 U.S. 415, 418, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971). Therefore, the district court's equation of the restrictions placed on witnesses with the limitations on access must not be read as applying the same standard in both instances. Analysis of the factors that distinguish the two situations must be observed.
70
In Landmark, the Supreme Court examined the grounds for confidentiality in the Virginia judicial disciplinary procedures. Assuming their validity, the court nevertheless held the regulation could not affect a newspapers' right to publish information it had obtained from an independent source. The Court carefully noted that the newspaper was a stranger to the Commission proceedings. No reporter, employee, or representative of the paper had been subpoenaed by, or appeared before, the Commission. 435 U.S. at 837 n. 10, 98 S.Ct. at 1541 n. 10. The court made clear, therefore, that it was confronted with a restraint on publication.
71
In Seattle Times, on the other hand, a ban was imposed on the defendant newspaper that sought to disseminate information it had secured through the court's own discovery process. The trial court issued a protective order enjoining publication of specified data, allowing its use only for purposes of trial. By its terms, the order did not apply to information gained by the defendant through means other than discovery.
72
The Supreme Court affirmed the trial court's order noting that the First Amendment does not prohibit all restraints on expression, "freedom of speech does not comprehend the right to speak on any subject at any time." 104 S.Ct. at 2207. A litigant has no First Amendment right to publish information made available only for purposes of trying his suit, and an important consideration was that the prohibition extended only to information gained through that means. Finally, the Court concluded that privacy considerations and proper functioning of a court's discovery proceedings to prevent abuse justified the restrictions.
73
In Rodgers v. United States Steel Corp., 536 F.2d 1001, 1006 (3d Cir.1976), we expressed a similar view in dictum, but held that a protective order prohibiting counsel from discussing material in an exhibit attached to a deposition was not permissible. Because the protective order applied to information that counsel had obtained from means other than through the court's process, we decided, to that extent, the restraint was impermissible. To the same effect, see State of New York v. United States Metals Refining Co., 771 F.2d 796 (3d Cir.1985).
74
The restriction imposed by the Board here differs from those considered in the preceding cases. Here, unlike Landmark, plaintiffs were participants in the Board's proceedings. The situation is also unlike Seattle Times in that plaintiffs did not seek to avail themselves of the Board's processes. The reporters were compelled to appear and testify on a matter that did not affect their personal interests. As counsel agree, the individual plaintiff's posture is much like that of a grand jury witness.
75
The scope of the Board's rule as well as that of the district court's order which refers to the "substance of any testimony" are not entirely clear. But it is important to recognize that the order was entered in conjunction with the directive requiring the Board to file its record with the state court in every instance in which formal proceedings were conducted. Hence, the district court's restraint on a witness would last only until that filing.
76
Under state law the Board will not file the record until and unless it recommends disciplinary action. Therefore, when the Board dismisses charges, its record will never be filed, and the restraint on the witness will be perpetual. The district court did not contemplate a restriction of such a duration.
77
The curb on disclosing the witness's testimony applies to information obtained from sources outside as well as inside the Board. In short, a person having any knowledge about the conduct of a judge, favorable or otherwise, might be forever barred from speaking, writing, or publishing it if he testified about that information before the Board. We find no state interest strong enough to justify such a sweeping measure.
78
Pennsylvania does not impose any such prohibition on witnesses who appear before a grand jury. They are permitted to disclose their own testimony although the traditional veil of secrecy applies to other participants in the process. 42 Pa.Cons.Stat.Ann. Sec. 4549 (1980); In Re November, 1975 Special Investigating Grand Jury, 299 Pa.Super. 539, 445 A.2d 1260 (1982). This procedure is consistent with the federal practice, see Fed.R.Crim.P. 6(e)(2), and its application in judicial disciplinary proceedings would not substantially impair the Board's function.
79
To the extent that the confidentiality requirement is intended to prevent improper defamatory publicity, other protection is available. The state constitution provides that testimony before the Board is privileged.8 A witness, therefore, may invoke that privilege as a defense to an action for defamation. If a witness chooses to speak outside the confines of a Board hearing, however, it would seem questionable whether the privilege would apply to that statement. See Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). For that reason, witnesses may find it in their own best interests not to divulge their testimony.
80
We conclude that to the extent the Board's regulation and the district court's order prevent witnesses from disclosing their own testimony, those directives run afoul of the First Amendment as impermissibly broad prior restraints. They are not totally invalid however. The confidentiality requirement is reasonable and may be enforced insofar as it would prevent a person, whether a Board member, employee, or counsel, from disclosing proceedings taking place before the Board. The same limitation applies to witnesses with the exception of their own testimony. The state interest in this respect, as in the grand jury setting, is sufficiently strong to support such a ban.
81
It follows that although witnesses may, if they choose, disclose their own testimony, they may not reveal that of another witness whom they may hear testify. Nor are they free to disclose the comments of Board members or staff that are overheard during their appearance. Therefore, the Board's regulation must be read to permit witnesses, at their discretion, to disclose the substance of their testimony before the Board.
82
Accordingly, the order of the district court will be vacated, and the case will be remanded for entry of a decree in conformity with the views expressed in this opinion.
83
BECKER, Circuit Judge, concurring in part.
84
I join in the result reached by the majority and in Part III of its opinion. I disagree, however, that there is any need to assume a right of access as the majority does, and then to determine whether the right is overridden in this case. Rather, I believe that because there is no tradition or history of access to the documents under consideration, there is simply no right of access to them, and that the court should so hold.
85
For a party to establish a constitutional right of access, it must show two things: (a) a tradition of openness, and (b) important functional values that would be served by access. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). The relevant historical inquiry here is whether there is a tradition of openness with respect to the Judicial Inquiry and Review Board's (the Board's) records when it votes after a formal hearing to dismiss the charges against the judge under investigation.
86
Examination of the historical record demonstrates that there is no tradition of openness with respect to such records.1 Of the fifty-three cases decided by the Board on the merits up to June 1, 1983 the Board dismissed the chargegnin twelve of them.2 One of the cases is the one before us, whose history is by now well-known. In six of the remaining eleven cases, the Board did not file its records in the Supreme Court. The records therefore did not become public. In the five remaining cases, the Board did file its records, but in three of them the Board had apparently initially decided not to make the record public and changed its mind only because one of the three district justices under joint investigation was killed trying to prevent a hold-up around the time of the investigation. The Board filed the record in the Supreme Court to clear that justice's name and memory. Thus, in only two of the twelve relevant cases did the Board decide to make public its records absent extraordinary conditions.
87
It is clear to me that this "tradition" is not sufficient to sustain the burden imposed by the Supreme Court. Any other conclusion would make a nullity of the tradition of openness requirement. Judge Adams obviously disagrees, stating that "the history of the Board up to the time of this case, though not a long one, demonstrates a tradition of openness in its proceedings...." Concurrence and dissent at 484. In reaching this conclusion, however, Judge Adams discounts the six cases in which the Board did not recommend sanctions and the records were not disclosed. Although, as noted above, these six cases constitute one-half the relevant history, Judge Adams refers to them as mere "simply exceptions" to an "overall pattern" of openness. Id. at 482. Aside from giving new meaning to the old adage that "the exception proves the rule," this position has little to recommend it. The pattern it purports to identify was honored more often in the breach than otherwise--it was no pattern at all.3 The six cases therefore cannot be trivialized as exceptions to a pattern that never existed, but must be given their due in an impartial examination of the whole relevant history. Such examination results in a conclusion opposite that of Judge Adams: there was no pattern or tradition of openness here--far from it.
88
Judge Adams also believes that the fact that impeachment proceedings have historically been open to the public is relevant to whether there is a tradition of openness to Board documents and records. Concurrence and dissent at 485. I disagree. As the majority explains, the history of impeachment proceedings would be relevant only if the Board had been intended to be, or had in fact become, a substitute for impeachment of judges. Majority Opinion at 473. However, the record is clear that Board was intended to supplement the impeachment process, not to supplant it, and that it has not become a de facto substitute for impeachment. The number of impeachments has not declined as a result of the availability of the Board.4 Cf. United States v. Smith (Appeal of the Patriot News Co.), 776 F.2d 1104, 1111 (3d Cir.1985) (holding that there is a right of access to bills of particulars, despite their brief history, because indictment have grown "skeletal," and bills of particulars play the role once played by more expansive indictments). Thus, the history of impeachment cannot shape our analysis of the appropriate practices of the Board.
89
Although the parties have discussed at some length the practices of other states' judicial review boards, and the majority and Judge Adams also refer to them, such practices cannot provide the historical evidence necessary to support the tradition of openness of the Pennsylvania Board. The very nature of the historical inquiry implies that states have some flexibility in deciding which of their institutions may be open and which closed to the public. States can shape their own histories and may therefore differ about whether their citizens have rights of access to otherwise identical institutions. Such differences are elemental to our system of federalism. Invoking the histories of other states' institutions abridges the states' flexibility; in this case, it denies Pennsylvania the opportunity to decide for itself whether its Board should be an open or a closed institution.
90
Our first obligation is to look at history for a tradition of openness. Having done so, I believe that there is no such tradition, and that our analysis should end there. I therefore do not reach the several issues pertaining to burdens of proof and appropriate standards of review in the majority opinion and disputed by Judge Adams.
91
ADAMS, Circuit Judge concurring in part and dissenting in part.
92
I join the majority's conclusion in Part III that the reporters may not be barred from disclosing their testimony before the Board. On the issue of public access, however, I respectfully dissent, because I differ with the majority's legal analysis and its result.
93
At the core of our differences on the access issue is a dispute over history. The majority believes that there is a "tradition of closed proceedings in the judicial disciplinary process ..." in Pennsylvania. This conclusion, however, is belied by the fact that throughout the state's history the central instrument of judicial discipline has been impeachment, from its inception a public proceeding. Nor, when the Judicial Inquiry and Review Board (the Board) was created in 1969 to strengthen the disciplinary process, did it deviate from this tradition of openness. Significantly, the Board granted the public access to its formal hearings in the vast majority of cases by filing a transcript with the Supreme Court, and did not adopt its current position on confidentiality until the present proceeding was underway.
94
The correct legal analysis here flows in large measure from the historical record. Under the standards set out by the Supreme Court in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), and Press-Enterprise v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) a tradition of openness, coupled with the powerful functional values served by public access, gives rise to a presumption of access to Board proceedings. Pursuant to that authority, the presumption of openness may be overcome only by a showing that closure "is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." Globe, 457 U.S. at 607, 102 S.Ct. at 2620. The Board's conduct here, it is clear, cannot meet this standard.
95
Building on its conclusion that there has been a tradition of secrecy, the majority determines that the Coalition, in seeking access, must justify its infringement of the state's choice of confidentiality even after a determination that a conflict is non-frivolous and requires a full adversary hearing; it proceeds to hold that the Coalition has not done so in this case. Because the majority's approach reflects a misreading of the historical record, and a sharp departure from controlling precedent, I must disagree.
I.
96
To see this case in proper perspective, it is necessary to focus precisely on the provision of the Pennsylvania Constitution at issue. Article V, Sec. 18(h) governs the confidentiality of the state's Judicial Inquiry and Review Board; it states that "[a]ll papers filed with and proceedings before the board shall be confidential but upon being filed by the board in the Supreme Court, the record shall lose its confidential character."1
97
Nothing in this provision specifies under what circumstances the record can or must be filed with the Supreme Court. What is abundantly clear is that once it is filed, it is no longer secret. From the time of its founding through June 1, 1983, the Board had disposed of 52 cases on the merits following a hearing, not including the present case. In all but six, the record was filed with the Supreme Court, and thus made public. The proceedings filed included 41 cases where the Board recommended sanctions, including four where the court did not follow the recommendation, as well as five others where the Board had determined no punishment was warranted. Although as the concurrence stresses the record was not filed in six other cases where the Board did not call for sanctions, the overall pattern suggests that these were simply exceptions to its general practice of filing the record after a hearing. The Board's own characterization indicates as much: in pleadings before the district court, the Board declared that "In the past, the record has been filed with the Supreme Court after a hearing has been conducted, whether or not the Board has recommended the imposition of discipline."2 App. at 40.
98
Until the present disciplinary proceeding was in progress, the Board's filing practices had never been questioned. App. at 235. Indeed, at the time of its filings, the Board stated that it was acting pursuant to "powers provided for in Article V, Section 18, Subsection D of the Constitution of the Commonwealth." App. at 236. After the Board had heard the case against Justice Larsen, however, it abruptly altered its usual procedure, and, for the first time sought an opinion from special counsel on the propriety of filing a record in a case where the Board had not recommended discipline. It was on the basis of this opinion that the Board came to take the position that the state constitution prohibited it from filing a record where charges against the judge were dismissed, after 15 years of practice to the contrary.3II.
99
The past practice of the Board is directly relevant to one of the two criteria used to resolve a claim of access, whether there has been a history of openness. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court held that the press and general public have a constitutional right of access to criminal trials. The plurality opinion by Chief Justice Burger relied on a history demonstrating that a presumption of openness inheres in the nature of a criminal trial under an Anglo-American system of justice. Id. at 564-73. Concurring, Justice Brennan wrote that resolution of a claim of access under the First Amendment must be evaluated in light of two factors: "The weight of historical practice" and an assessment of the societal benefits, or "specific structural value of public access in the circumstances." Id. at 597.
100
This two-step analysis was reaffirmed by the Supreme Court two years later in Globe Newspaper v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), which held that the First Amendment prohibited a mandatory closure rule denying the press and public access to trials involving testimony by the minor victim of a sex crime. Citing Richmond Newspapers, the Court noted that the criminal trial historically has been open to the press and the general public. Globe, 457 U.S. at 605, 102 S.Ct. at 2619. The majority then proceeded to evaluate the functional role of access to trials. It concluded that it enhances the factfinding process, fosters an appearance of fairness in our system of justice, and permits the public to participate in and serve as a check upon the judicial process. Id. at 606, 102 S.Ct. at 2619. See also Press Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (applying two-part test in granting claim of access to voir dire proceedings).
101
This Court has further recognized a right of access beyond the criminal context. In Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984), we addressed the issue of public access to civil trials. Surveying such venerable authorities as Coke, Hale, and Blackstone, the Court emphasized that "historically both civil and criminal trials have been presumptively open." Id. at 1068. Turning to the second prong of the Globe analysis, we identified an important role for access in the functioning of the judiciary and the government as a whole. We found that access in the civil context served the same functions that the Supreme Court had enumerated in Globe. Id. at 1070. Perhaps most importantly, it was emphasized that access "permits the public to participate in and serve as a check upon the judicial process" and to ensure that the "constitutionally protected 'discussion of governmental affairs' is an informed one." Id. (quoting Globe, 457 U.S. at 604-05, 102 S.Ct. at 2618-19).
102
We have also confronted claims of access to judicial proceedings which, unlike the criminal and civil trial, lacked a counterpart at common law. In such cases, courts have placed greater reliance on the structural First Amendment values served by access as distinguished from the historical factor. Thus, in United States v. Criden, 675 F.2d 550 (3d Cir.1982), we identified a right of access to a pretrial suppression hearing, despite the absence of a long history of openness. Because "the relative importance of pretrial procedure to that of trial has grown immensely in the last two hundred years," we concluded that "we do not think that historical analysis is relevant in determining whether there is a first amendment right of access to pretrial criminal proceedings." Id. at 555.
103
More recently, in United States v. Smith (Appeal of the Patriot News Co.), 776 F.2d 1104 (3d Cir.1985), we held that there exists a presumptive right of access to a bill of particulars because of its close relationship to the indictment, which has historically been available to the public. Although "[b]ills of particulars, relative to indictments, have a brief history," we noted that in recent years indictments have become somewhat skeletal, and bills of particulars have thus grown to perform a large part of the role originally played by indictments. Id. at 1111. In addition, public access to such bills "serves the same societal interests served by access to the charging documents." Id. Thus, the bill of particulars was held entitled to the same presumption of openness as the indictment.
104
These cases frame the appropriate inquiry for a court reviewing a claimed right of access. The inquiry entails review of both the history of openness and the functional values served by access. In examining these elements, a court must be guided by the purposes of the First Amendment, and be sensitive to historical evolution. Where new structures develop to fulfill the role earlier played by other structures, we must seek guidance from the history of the earlier institutions, as in Smith. Moreover, where a particular judicial proceeding has become a critical governmental institution only recently, we place correspondingly greater weight on the structural values furthered by access, as in Criden.
105
In the present case, the Board itself has a relatively brief institutional history. Nationally, more than two-thirds of the present-day judicial-discipline organizations came into existence during the last 15 years. See I. Tesitor & D. Sinks, Judicial Conduct Organizations 19-27 (1980). Pennsylvania's Board began operation in 1969. While the state schemes vary as to the stage at which the board proceedings become public, the general practice of the Pennsylvania board has been to file a record with the Supreme Court, and thus allow public access after the Board has held a hearing on whether to recommend formal discipline. The Board's policy on confidentiality was adopted as a balance between the need to protect the "judiciary ... from frivolous complaints," and the recognition that "at the same time, the public must be made to know that its real complaints will be heard." McDevitt, Reviewing the Review Board, 42 Pa.B.A.Q. 33, 36 (1970-71); see also Jones, State of the Judiciary in the Commonwealth, 45 Pa.B.A.Q. 152, 155 (1974) (Board has function of "providing the public with the assurance that the conduct of judges at all levels is really being policed...."). Thus the history of the Board up to the time of this case, though not a long one, demonstrates a tradition of openness in its proceedings consistent with the performance of its disciplinary function.
106
More important to the inquiry is the history of functionally similar procedures designed to discipline judges. See Comment, The First Amendment Right of Access to Civil Trials After Globe, 51 U.Chi.L.Rev. 286, 291 (1984). The analogue to the Board discipline, as the majority notes, is impeachment and removal for conviction of a crime. An impeachment proceeding has always been a quintessentially "public business." C. Black, Impeachment: A Handbook 19 (1974). According to the majority, however, the analogy is inapplicable because "[t]he Board's functions are intended to supplement rather than replace" the impeachment process. Ante at 472.
107
Examination of the debate leading to adoption of the Article V, however, undercuts this assertion. Creation of the Board grew out of a recognition that "[i]mpeachment is rarely used because it has been shown to be almost ineffective." Laub, Issues Before the Judiciary Committee of the Pennsylvania Constitutional Convention, 39 Pa.B.A.Q. 390, 397 (1969). Thus a new method was needed. It is true that the Board was granted powers to punish more diverse types of judicial misconduct than could be remedied by impeachment, which was reserved for punishment of criminal acts of office and breaches of positive statutory duty. Id. at 397. Nevertheless, under the pre-1968 regime, impeachment was the primary means available for disciplining judicial misconduct; afterward, by contrast, action by the Board became the primary means. In functional terms, then, the proceedings before the Board replaced impeachment. Indeed, there have been no impeachment proceedings since the Board was created.
108
Even if we were to accept the majority's label of "supplement" rather than "replacement," moreover, we would still be compelled to look to the prior history of impeachment in analyzing the history of access to judicial disciplinary proceedings in Pennsylvania. To do otherwise would appear to ignore the teaching of Smith. There we noted that bills of particulars in recent years have come to perform part of the function initially served by the indictment, and so are now fairly seen "as supplements to the indictment," id. at 1111, subject to a comparable right of access. Similarly, Board discipline, under any characterization, has at the very least come to play a major portion of the role formerly served by impeachment, and thus must be similarly open.
109
The majority's assertion, then, that because of the lack of open proceedings in the judicial disciplinary process, the Coalition bears a burden of overcoming a presumption of confidentiality rests, I believe, on a misreading of the historical record. Together, the practice of the Board and the prior practice of its functional equivalent support the Coalition's argument that history comports with a presumption of openness.
110
Against this background, we turn to the second step of the Richmond-Globe analysis, which calls for consideration of the structural values served by access. These values overwhelmingly support a presumption of access.
111
The majority asserts that in some circumstances acceptance of the structural considerations of the First Amendment could lead to "an unjustifiably expansive interpretation" of that constitutional provision, ante at 473, and that, as Justice Brennan has argued, the right to know "must be invoked with discrimination and temperance." Richmond Newspapers, 448 U.S. at 588, 100 S.Ct. at 2833 (concurring opinion). As general propositions, these admonitions are unexceptionable. But they have little bearing on this case. Here, we consider the structural values of access in the context of a historically open proceeding, where the right of access sought attaches at the very point at which access generally has been granted. Moreover, this point occurs at a stage in the disciplinary proceedings where a review panel has found the complaint not to be frivolous, and where the subject of the complaint has had the benefit of a full adversary hearing. Thus, in neither theoretical nor practical terms does consideration of structural values in this case pose the danger of an "unrestrained right to gather information," Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-81, 14 L.Ed.2d 179 (1965), a factor which apparently concerns the majority. Ante at 474.
112
One critical value furthered by access is its role in "heightening public respect for the judicial process." Globe, 457 U.S. at 606, 102 S.Ct. at 2619. The facts of this case dramatically illustrate the importance of this value. As the Pennsylvania Commonwealth Court stated in a related state court litigation, the underlying nature of the present matter included "allegations of rampant racism, vote-fixing, political maneuvering, personal eccentricities, and the indiscreet, if not unlawful, use of the influence of [a Justice's] office for the political and personal benefits of his friends." In re Subpoena Served by the Pennsylvania Crime Commission, 79 Pa.Commw. 375, 380, 470 A.2d 1048, 1051 (1983). The Commonwealth Court found that this matter had "shaken and continues to shake the public confidence in the administration of justice in this Commonwealth." Id.4
113
To deny public access to the disposition of such charges once they have reached a formal stage may well create an impression that the Board's "decisions [are] based on secret bias or partiality," Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823 (plurality opinion of Burger, C.J.); see Criden, 675 F.2d at 556, or stem from "parochial protectiveness." In re Subpoena, 79 Pa.Commw. at 402, 470 A.2d at 1060. Completely closed Board proceedings may thus "breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law." Richmond Newspapers, 448 U.S. at 595, 100 S.Ct. at 2837 (Brennan, J., concurring). The most stringent set of ethical standards for elected officials would be of limited worth if the public is not persuaded that the standards are being fairly enforced. Legitimacy rests in large part on public understanding. See Note, Judicial Removal--Establishment of Judicial Commission for Removal of Judges Precludes Legislative Investigation of Judicial Misconduct, 84 Harv.L.Rev. 1002, 1009 (1971).
114
A related but important benefit secured by access is a "community therapeutic value." Press-Enterprise, 464 U.S. at 508-09, 104 S.Ct. at 823; Richmond Newspapers, 448 U.S. at 570-71, 100 S.Ct. at 2823-24 (plurality). Allegations of misconduct by judges who are charged with meting out justice often provoke public outcries. A chance to verify that a public agency like the Board is effectively enforcing ethical rules provides an outlet for such reactions. As the Executive Director of the Board has stressed, "there is real value in giving citizens a sounding board for their grievances." McDevitt, supra, 42 Pa.B.A.Q. at 35.
115
Public access also demonstrably advances the First Amendment's "core purpose of assuring freedom of communication on matters relating to the functioning of government." Richmond Newspapers, 448 U.S. at 575, 100 S.Ct. at 2826 (plurality). Access here would educate the public both about the Board and the judiciary. See Comment, supra, 132 U.Pa.L.Rev. at 1183 (1984). A public informed by access would in turn be better equipped to serve as a check on the judicial system, an essential component in our form of government. See Globe, 457 U.S. at 606, 102 S.Ct. at 2619. As to the Board, the knowledge that the press and public may review its actions will act as a safeguard against bias or partiality, and enable the public to evaluate the Board's performance of its watchdog role. As to the judiciary, access to Board proceedings will enable citizens to evaluate judges, and make more effective decisions when the time comes for electing or re-electing them. This is especially appropriate in Pennsylvania which selects its judges by popular election.
116
Finally, opening Board hearings will likely make them more effective by enhancing their integrity. Factfinding before the Board may include production, and admission of documents, and testimony by witnesses. As in the criminal trial context, public scrutiny would discourage perjury or other misconduct. See Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823 (Burger, C.J.) (plurality); Shaman and Begue, Silence Isn't Always Golden: Reassessing Confidentiality in the Judicial Disciplinary Process, 58 Temple L.Q. 755, 771 (1985). Access would serve an important purpose as "security for testimonial trustworthiness." Publicker, 733 F.2d at 1070.
117
Given the strength of these structural values, and the history of the Board's practices as well as the predecessor impeachment process, it seems clear that a presumption of access attaches to the Board's proceedings. To some extent the majority appears to concede this point. Although at one point it likens the Board to the Grand Jury, a secret body, ante at 473, it also "assume[s] a right of access" to Board proceedings at some stage, ante at 472, and states that "what tradition there is, favors public access only at a later stage in the process." Ante at 473. Under this latter view, the right of access apparently attaches at a point the Board now contends it does, when formal sanctions are recommended to the Pennsylvania Supreme Court. This contention, however, suffers from the same defect as the theory that there is a tradition of closure, since, as we have demonstrated, historically access was granted to formal hearings by the Board, regardless of their outcome. Similarly, in impeachment proceedings, access is granted to the trial at which the legislature determines whether to recommend conviction, regardless of whether conviction is recommended or not.
118
The only other support offered by the majority for its delayed point of access, under its theory of a "temporally based right," ante at 473, is an analogy: the Board's proceedings, the majority contends, are "most akin" to the grand jury, id., rather than the pre-trial and trial proceedings in Richmond Newspapers and its progeny. This is so, it is argued, "because the Board cannot impose, but only recommend, punishment...." Ante at 473.
119
In fact, however, the Board's real powers are considerably greater than this analogy suggests, and the protections provided the subject of a complaint are correspondingly more stringent than before the grand jury. Unlike a grand jury, the Board may conduct full adversary hearings, designed to reach a conclusion on the merits of the charges, rather than merely a determination of probable cause. Where the Board does recommend sanctions, the Supreme Court does not retry the case, but decides to affirm or reject them on the basis of the transcript of Board hearings. Where the Board dismisses a complaint--as occurs in the vast majority of cases--its decision is final and unreviewable. See First Amendment Coalition, 501 Pa. 129, 460 A.2d 722.5 As a result of its power, in hundreds of cases the Board itself has imposed what it calls "informal" sanctions, including verbal reprimands, letters of admonition, and solicited resignations. While the Board now argues that these are "consensual" sanctions, this label should not cloud the underlying reality: the Board's ability to obtain "consent" to such measures is in large part predicated on its unquestioned ability to effect formal punishment. Indeed, the Supreme Court has accepted the Board's recommendation 90% of the time, a practice apparently contemplated from the start.6 Given its autonomy and power, even representatives of the Board have acknowledged that it "sit[s] first as an investigatory body, then as a quasi-judicial body." McDevitt, supra, 42 Pa.B.A.Q. at 37 (1970).
120
Unlike the grand jury, then, but like the trial in Richmond Newspapers, judicial inquiry procedures in Pennsylvania are a "mechanism for judicial factfinding" and an "initial forum for legal decisionmaking," 448 U.S. at 596, 100 S.Ct. at 2838 (Brennan, J., concurring), and are thus entitled to the same presumption of openness under the First Amendment.
III.
121
Concluding that a right of access exists, of course, does not complete the Court's task. Such a right is not absolute. It may be overcome if the state demonstrates that closure "is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." Press-Enterprise, 464 U.S. at 510, 104 S.Ct. at 824 (1984) (quoting Globe Newspaper, 457 U.S. at 607, 102 S.Ct. at 2620 (1983)). See Smith, 776 F.2d at 1112. Here, however, the Board cannot meet this standard.
122
The Board offered three major interests that it contends are sufficient to overcome the right of access. The first is that confidentiality encourages the filing of complaints by providing protection against retaliation. This interest may be quickly disposed of, however, since under Pennsylvania's procedure, the judge under investigation, the person most likely to retaliate, has already been informed of the name of the initial complainant by the time a formal hearing begins. App. at 129-30, 262, 264. Although the subject is apparently not notified of the identities of the witnesses to appear, the disclosure of the complainant and the nature of the complaint will most often suggest those likely to be called. Thus, this interest is not a strong one once the proceedings pass the initial stage.
123
Two other rationales are suggested by the majority: the interest in the reputation of the judiciary and individual judges, and the need for flexibility in negotiating sanctions. The flexibility interest derives from the Board's ability to encourage judges to resign voluntarily by offering to spare them the publicity of a hearing. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 835-36, 98 S.Ct. 1535, 1539-40, 56 L.Ed.2d 1 (1978). Given the Board's limited resources, and the fact that its jurisdiction encompasses many and varied types of judicial misconduct, this interest is an important one, and unless it can maintain confidentiality while investigating complaints, the Board has no other effective means of preserving flexibility.
124
I also agree that there is a strong interest in protecting the reputation of judges from unfounded complaints. See Landmark, 435 U.S. at 835, 98 S.Ct. at 1539. But this interest exerts declining force as the Board concludes that the complaint is worthy of a full hearing. The first step by the Board in its investigative stage is to dismiss frivolous claims. It then informally investigates further, winnowing out other meritless claims, and allowing the judge to comment on charges that appear more substantial. If a complaint remains unresolved, the Board then conducts a formal investigation, after which it decides whether to lodge formal charges requiring an adversary hearing. It is during the investigative stage that, "the meritorious can be separated from the frivolous complaints," Landmark, 435 U.S. at 835, 98 S.Ct. at 1539. The Board can use confidentiality as a bargaining chip to resolve some complaints without filing formal charges leading to a hearing, and it can further determine which of the non-frivolous complaints are sufficiently substantiated to merit formal charges.
125
Once these steps have been completed, the concern over premature disclosure of unfounded complaints virtually vanishes. Moreover, to the extent that there is any remaining danger of unfair injury to reputation, it may be answered by a means other than confidentiality--that is, by disclosure of the full transcript of the proceedings, including the basis of the decision to sustain or dismiss the charges. This, of course, was the Board's practice until the time of this case. Under this procedure, every judge formally accused by the Board but eventually exonerated would be vindicated by the simultaneous disclosure of the transcript. Once the transcript is complete, then, the state can no longer justify its limitations on the right of access, and the press and public, as the district court held, are entitled to inspect the transcript.
126
In rejecting the Coalition's claim of access, the majority also engages in a balancing of access interests against confidentiality interests, but it never articulates the standard it applies to this weighing. Without citing authority, it seems to suggest that in evaluating the competing concerns, the Board's balancing deserves special deference from this Court. Thus it states that "[t]he coalition has failed to show that the right of access it urges is so compelling as to justify the restrictions on the state's freedom of choice," ante at 473, and that "[f]ederal courts should not overturn a state's evaluation of structural concerns in the absence of egregious circumstances," ante at 475. With all due respect, this approach turns the constitutional analysis upside down. The basic rule is that once a right of access is found to exist, then the burden falls upon the state to justify its infringement. See Globe, 457 U.S. at 606-07, 102 S.Ct. at 2619-20. Moreover, the Supreme Court has declared that a federal court is required to conduct an independent review of the asserted justifications, according to federal constitutional standards. See Landmark, 435 U.S. at 843, 98 S.Ct. at 1543.
127
To support its application of a "presumption of validity attaching to state legislative and constitutional provisions," ante at 475, the majority cites Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). That decision, however, provides little support for the majority's approach. Clements dealt with an equal protection challenge to state constitutional limitations on a public official's ability to become a candidate for another public office. The Supreme Court held that in the absence of special burdens on minority political parties or independent candidates, the state's classification should be analyzed under a lenient rational basis test, rather than the more demanding "strict scrutiny." Id. at 963-65, 102 S.Ct. at 2843-45. Thus the Court applied "traditional equal protection principles," id. at 965, 102 S.Ct. at 2844, developed in a long line of precedents. In this case, by contrast, the asserted right, whose existence is conceded by the majority, is a First Amendment right of access. The majority points to no case allowing for a rational basis review in a First Amendment access case, nor could it; once a right of access is found to exist, any infringement of that right must meet the "compelling interest" test set forth in Globe.
128
Ultimately, under the First Amendment, any attempt to justify the Board's position must establish that its current view of confidentiality is necessary to its operation. The majority hints that it believes this, see ante at 476-77, but it does not say so directly. The reason it does not should be clear enough: for its first 15 years, the Board operated without that degree of confidentiality, and there is no evidence that shows any problems as a result. Against such a record, a claim of necessity is anomalous indeed.
IV.
129
As judges, we instinctively react against public exposure, perhaps because we know the importance of confidentiality to certain aspects of our work, such as decisional conferences. In this context, secrecy is a goal worthy of protecting. But we have no general authority to "protect the court as a mystical entity or the judges as individuals or as annointed priests, set apart from the community and spared the criticism to which in a democracy other public citizens are exposed." Bridges v. California, 314 U.S. 252, 291-92, 62 S.Ct. 190, 207-08, 86 L.Ed. 192 (1941) (Frankfurter, J. dissenting). There is no legal support for the proposition that elected state officials who happen to be judges are entitled, in Judge Pollak's words, to "total exemption from the slings and arrows which others in the public arena must live with." 579 F.Supp. at 214. In the final analysis, what is most regrettable about today's decision is that in the absence of any other convincing rationale, it too will be seen as an example of the judiciary protecting its own interests.7
130
This case comes at a critical time in the history of the judiciary. Judges at both the state and federal level are receiving unprecedented scrutiny not only from the press and public, but also from law enforcement officials. Prosecution of judges for misconduct, unfortunately, has become increasingly common.8 As a result, the public needs assurance that it can continue to rely on the independence and impartiality that are the cornerstone of our judicial system; it needs to know that the non-criminal mechanisms created to monitor judicial conduct are functioning with vigor and effectiveness. In Pennsylvania, the Review Board's critics cry out that its decisions are based on partiality and self-protection. Nothing could give more credence to these charges than fencing out the public from the Board's proceedings; and nothing could rebut them more effectively than disclosure where complaints have been denominated by the Board as serious.
131
Because I believe that the First Amendment requires access to proceedings involving non-frivolous complaints regarding high elected officials, I would affirm the judgment of the district court, and order that the transcript of the hearing be made public.
132
Judges GIBBONS, SLOVITER and MANSMANN join in this dissent.
*
The Honorable Oren Harris, United States District Judge for the Eastern and Western Districts of Arkansas, sitting by designation
1
"Out of the 3040 complaints filed with the Board in its fourteen-year history, only eighty-four--not quite three percent--have resulted in a Board decision to prefer formal charges." 579 F.Supp. at 195. These complaints include those against members of the minor judiciary as well as those against judges of courts of record
2
Interestingly, the deliberations of the federal Constitutional Convention in 1787 were conducted in secret despite the strong disapproval of Jefferson. Madison who took voluminous notes would not permit their publication during his lifetime. Commentators have questioned whether the constitution in its present form could have been ratified if the proceedings of the convention had been open to the public. See O'Brien, The First Amendment and the Public's "Right to Know", 7 Hast.Const.L.Q. 579, 592 (1980)
3
See Shaman and Begue, Silence Isn't Always Golden, 58 Temple L.Q. 755, 756 (1985)
4
In his concurring opinion, Justice Stewart commented on the importance of confidentiality in a judicial disciplinary process: "There could hardly be a higher governmental interest than a State's interest in the quality of its judiciary. Virginia's derivative interest in maintaining the confidentiality of the proceedings of its Judicial Inquiry and Review Commission seems equally clear. Only such confidentiality, the State has determined, will protect upright judges from unjustified harm and at the same time insure the full and fearless airing in Commission proceedings of every complaint of judicial misconduct." 435 U.S. at 848-49, 98 S.Ct. at 1546
5
We recognize that a number of states have chosen to allow earlier access despite its inhibiting effect on the encouragement of resignations. That, however, does not demonstrate that Pennsylvania's evaluation is faulty or that it is unconstitutional
6
We note that in Pennsylvania, proceedings of the lawyers' disciplinary Board have similar confidentiality provisions. Pa.R.D.E. 402
7
For a provocative discussion of this principle, see Jeffries, Rethinking Prior Restraint, 92 Yale L.J. 409 (1983)
8
In Owen v. Mann, 105 Ill.2d 525, 86 Ill.Dec. 507, 475 N.E.2d 886 (1985) the Illinois Supreme Court held that a judge suing an attorney for libel could not obtain a copy of the complaint the lawyer had filed against the judge in disciplinary proceedings. The complaint was found to be subject to the confidentiality provision of the state constitution
1
It is worthy of note in this regard that while the district court (Pollak, J.) found a right of access, it did not consider whether there was a tradition of openness associated with these documents, apparently believing that so long as access would serve a legitimate purpose, there was a constitutional right to such access. First Amendment Coalition v. Judicial Inquiry and Review Board, 579 F.Supp. 192, 211 (E.D.Pa.1984) ("A governmental restriction on public and press access to information about matters of public concern presents a First Amendment question.")
2
The Board recommended sanctions in the other forty-one cases, and therefore filed the records of those cases in the Supreme Court where they became public records. Although Judge Adams makes much of these forty-one cases, they are clearly irrelevant to the question at hand which is whether there is a tradition of openness with respect to the records of the investigations where the Board does not recommend sanctions. The Board does not dispute that (nor are we called upon to decide whether) there is a tradition of openness with respect to the records of investigations that result in the recommendation of sanctions
3
Judge Adams also implies that the release of the records of the investigation of the justice shot while attempting to stop a hold-up took place without regard to concern for his good name or memory, and that such considerations were only post hoc justifications for what was in fact a "routine" practice. Concurrence and dissent at 482 n. 2. Testimony of Richard McDevitt, the Board's Executive Director, clearly demonstrates, however, that the Board was in fact motivated by the unusual and tragic circumstances of the case, and did not view the release of the documents as routine:
[A] district justice [was] accused of charges that received considerable publicity in Erie, and the panel and Board recommended dismissal. In the interim, the district justice, in trying to prevent a hold-up ... was shot and killed, and in the interest of protecting his memory the Board decided that the recommendation of dismissal should be filed and it was filed.
App. at 162 (emphasis added).
4
No Pennsylvania judge has been impeached since the early nineteenth century. Mundy, The Myth of Merit, XIV The Barrister No. 3 p. 14 (Fall 1983)
1
A state statute sets out identical requirements. 42 Pa.Stat. Sec. 3334 (Purdon 1981)
2
The concurrence also labels as "extraordinary" three of the five cases in which the record was filed although charges were dismissed, on the ground that one of the judges under investigation had been killed trying to prevent a hold-up. If clearing the name of the deceased judge were the primary motivation, however, that could easily have been accomplished without disclosing the record of the proceedings against all three. Moreover, the Board's executive director testified that only while "[l]ooking back in retrospect" did he "think [these cases] were special circumstances. I don't know what their [the Board's] thinking was at the time the issue of filing or not filing really wasn't raised." App. at 222. Like the Board's pleadings in the district court, then, this comment suggests that at the time, filing of the record was viewed as a routine matter
3
We realize, of course, that this position of the Board has been upheld by the Pennsylvania Supreme Court, First Amendment Coalition v. Judicial Inquiry and Review Board, 501 Pa. 129, 133, 460 A.2d 722, 724 (1983), and that this decision is binding on us as an interpretation of existing state law. However, under Globe and its progeny, we look to the historical practice in determining the existence of a federal right of access, and it is to that end that we consider the prior history. See infra at 483, 483-485
At the same time, the route by which the Board's present interpretation of the state Constitution came to be, in the majority's words, "authoritatively established," ante at 471, is worthy of note. The special counsel retained by the Board issued this interpretation in an opinion. The Coalition appealed to the Pennsylvania Supreme Court. That court did not independently construe Article V of the constitution in deciding the appeal; rather, it simply ruled that under the state constitution, the Board is "a constitutionally independent body," and that it did not have the power to review the Board's interpretation. Thus, this definitive interpretation of the state constitution is really one lawyer's opinion, rendered for a client agency.
4
When the disciplinary proceedings were before the Board, they provoked heated reactions. See Comment, A First Amendment Right of Access to Judicial Disciplinary Proceedings, 132 U.Pa.L.Rev. 1163, 1165 (1984). The Philadelphia Inquirer was led to editorialize that the Board had "been publicly exposed as a self-serving, evidence ignoring, mutual protection society dedicated to the perpetuation of a judicial system whose foundations are beset by moral rot." May 13, 1983, at 14A, col. 1
5
Of the first 3000 complaints concerning elected judges filed by Pennsylvania citizens, the Board on its own disposed of all but 41. App. at 253-61
6
See, e.g., Chief Justice Jones, State of the Judiciary in the Commonwealth, 44 Pa.B.A.Q. 282, 284 (1973) ("I am happy to note that, in the [first] four years of the Board's existence, its recommendations, without exception, have been acted upon favorably by our Court.") (emphasis added)
7
Indeed, the majority seems concerned that recognition of a right of access here might also require access to the proceedings established for disciplining federal judges. Ante at 476. The constitutionality of the federal system, however, is not before this Court; nor would the historical and structural arguments in favor of access be identical in the context of the non-elected federal judiciary. It is, however, upon the basis of such considerations that any claim of access to the federal proceedings should be decided, not upon a conviction that the federal judiciary should be immune from otherwise applicable constitutional standards
Judge Sloviter would not reach this issue and does not join in this footnote. She notes, however, that she would find it difficult to distinguish between access to proceedings involving state judges and those involving federal judges.
8
Accounts in the popular press from the week of January 26, 1986, for example, reflect the growing public and prosecutorial focus on the judiciary. In Philadelphia, the Inquirer began publication of a series of articles exposing improprieties in the city's courts. See Bissinger and Biddle, Disorder In the Court: Politics and Private Dealings Beset the City's Justice System. Philadelphia Inquirer. January 26, 1986, at 1A. col. 1. The New York Times reported on the impact of a bribery trial of a federal judge on a small Mississippi town. January 27, 1986, at 8A, col. 2. And USA Today, editorializing that "Judicial corruption is cause for alarm," devoted a full page to discussion of judicial misconduct; it noted both the number of state court judges under indictment or investigation as well as the fact that only three federal judges had ever been indicted for offenses allegedly committed while on the bench, all three in the past three years. January 27, 1986, at 10A
|
578 F.2d 1372
U. S. Community Services Administrationv.G-Lam Corp.
No. 77-6200
United States Court of Appeals, Second Circuit
3/17/78
1
N.D.N.Y.
AFFIRMED
|
655 So.2d 1058 (1995)
Howard G. THOMPSON and Lillian M. Thompson
v.
Deborah J. WASDIN[1].
AV93000787.
Court of Civil Appeals of Alabama.
February 10, 1995.
Daniel G. Blackburn of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for appellants.
Keith Hadley of Chason & Chason, P.C., Bay Minette, for appellee.
CRAWLEY, Judge.
Howard G. Thompson and his wife Lillian M. Thompson appeal from an adverse judgment on their claim to a prescriptive easement over property adjoining land they own.
*1059 The facts set forth in this paragraph are undisputed. In February 1990, Keith Hadley purchased from International Paper Company approximately 10 acres of land located in Baldwin County. Shortly thereafter, Hadley placed a mobile home on the property and he and his wife began living there. A dirt road traverses the Hadley property from its northern boundary to its southern boundary. The Thompsons' land adjoins the Hadley property along a portion of the Hadley property's northern boundary. The Thompsons and others have used the dirt road across the Hadley property to gain access to a paved road running along the southern boundary of the Hadley property.
In December 1991, Hadley filed a declaratory judgment action against the Thompsons, seeking a declaration that the dirt road on his property was not a public road; that the Thompsons had acquired no rights to the road; and that he was entitled to close the road. The Thompsons answered, claiming that the dirt road had become a public road by prescription, or, in the alternative, that they had acquired a private prescriptive easement in the dirt road. After taking ore tenus testimony and personally viewing the property, the trial court entered a judgment in favor of Hadley. The Thompsons' appeal is before this court pursuant to Ala.Code 1975, § 12-2-7(6).
On December 5, 1994, after the record on appeal and the appellants' brief had been filed, Hadley filed a motion to substitute his former wife, now known as Deborah J. Wasdin, as the appellee. The motion stated that the property owned by Hadley at the time of the trial had been conveyed to Ms. Wasdin on January 24, 1994. On December 7, 1994, Hadley filed his appellee's brief. On December 16, 1994, this court granted Hadley's motion to substitute his former wife as the appellee; however, in order to avoid confusion, we will continue to use "Hadley" in this opinion to refer to the appellee.
The Thompsons raise two issues concerning their claim that the dirt road on the Hadley property had become a public road by way of prescription. They argue (1) that the trial court erred in finding that the Hadley property was unimproved land and (2) that this court should change the burden of proof in cases involving a claim that a road over unimproved land has become a public road by prescription.
"A public road may be established by common law dedication, statutory proceeding, or by prescription. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972). An open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public road by prescription. When such circumstances are shown, a presumption of dedication or other appropriation to a public use arises. The burden is then on the landowner to show the user was permissive only, in recognition of his title and right to reclaim the possession. Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954).
"In Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954), [however,] it was noted that the above principles were not applicable to wooded or unimproved lands, or lands which, though once reclaimed, had been `turned out,' or left open and unused. Instead, where the road runs over unimproved or `turned out' lands, there is no presumption of dedication by mere use; rather there is a presumption of permissive use and the user must establish his use as adverse to that of the owner."
Ford v. Alabama By-Products Corp., 392 So.2d 217, 218-19 (Ala.1980). Accord Thomas v. City of Rainsville, 502 So.2d 346, 348 (Ala.1987). "[W]here the alleged roadway runs through wooded or unimproved lands, it takes clear and convincing proof to overcome the presumption that the use of the land was merely permissive." Wallace v. Putman, 495 So.2d 1072, 1074 (Ala.1986).
In this case, the trial court specifically found that the dirt road across Hadley's property had been used continuously by the Thompsons and other members of the public for more than 40 years. The court also found that Hadley's "10-acre parcel was unimproved timberland until [Hadley] placed a mobile home upon the property" in 1990.
"Where evidence is presented to the trial judge ore tenus, the court's findings of fact *1060 based on that evidence are presumed correct and those findings will not be disturbed on appeal unless they are clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." Jasper City Council v. Woods, 647 So.2d 723, 726 (Ala.1994). "[T]he ore tenus presumption is further strengthened in a case involving a dispute over real property, where the trial judge views the land in question." Hereford v. Gingo-Morgan Park, 551 So.2d 918, 920 (Ala.1989). The record clearly supports the trial court's finding that the Hadley property was unimproved timberland during the claimed prescriptive period.
As noted above, there are "two variations in the prescription method of establishing a public way, the distinction depending upon whether the road in question runs through `improved or reclaimed' land or across `unimproved or unreclaimed' land." Thomas v. City of Rainsville, 502 So.2d at 348. These variations "relate only to the burden of proof," id.where the road runs through improved or reclaimed land, there is a presumption of dedication to public use and the burden is on the landowner to show that the use was permissive; where the road runs through unimproved or unreclaimed land, there is a presumption of permissive use and the burden is on the claimant to show that the use was adverse to that of the owner.
Because the trial court found that the Hadley property was unimproved timberland, the burden was on the Thompsons to show that the use of the dirt road was adverse to that of the owner for the prescriptive period. See McInnis v. Lay, 533 So.2d 581, 583 (Ala.1988); Ford v. Alabama By-Products Corp., 392 So.2d at 218-19. The trial court found that they had not met this burden. The Thompsons do not challenge the trial court's finding on this point. Instead, they argue that the burden of proof in "unimproved land" cases "should be abandoned in favor of more modern and practical standards."
However, this burden of proof was established long ago by the Alabama Supreme Court in Rosser v. Bunn & Timberlake, 66 Ala. 89, 95 (1880), and it has been repeatedly reaffirmed by that court in, e.g., McInnis v. Lay, 533 So.2d at 583; Thomas v. City of Rainsville, 502 So.2d at 348; Ford v. Alabama By-Products Corp., 392 So.2d at 218-19. This court is bound by the decisions of the Alabama Supreme Court, Ala.Code 1975, § 12-3-16, and "is without authority to overrule the decisions of th[at] court," Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972).
For the reasons stated above, the judgment of the trial court is affirmed.
AFFIRMED.
ROBERTSON, P.J., and THIGPEN, YATES and MONROE, JJ., concur.
NOTES
[1] This case was styled below as "Keith Hadley v. Howard G. Thompson and Lillian M. Thompson." Keith Hadley was the original appellee in this appeal. As discussed in the body of this opinion, this court granted Hadley's motion to substitute his former wife, Deborah J. Wasdin, as the appellee.
|
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 25, 2013
Decided April 25, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-3314
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 94-40009-001
ELLIS J. LARD, Sara Darrow,
Defendant-Appellant. Judge.
ORDER
In 1994 Ellis Lard pleaded guilty to being a felon in possession of a firearm, see 18
U.S.C. § 922(g)(1), and was sentenced under the Armed Career Criminal Act to 210 months’
imprisonment and five years’ supervised release. After his release in 2010, he was arrested
for selling cocaine; the district court revoked his supervised release and ordered Lard
reimprisoned for five years, the statutory maximum. Id. § 3583(e)(3). He filed a notice of
appeal, but his newly appointed lawyer contends that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). Lard has not responded to
counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues identified
in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th
Cir.2002).
No. 12-3314 Page 2
Counsel first considers whether Lard could challenge his reimprisonment term as
substantively unreasonable. See Gall v. United States, 552 U.S. 38, 46 (2007). We agree with
counsel that any such challenge would be frivolous. The district court’s decision is subject
to “the narrowest judicial review of judgments we know,” see United States v. Kizeart, 505
F.3d 672, 675 (7th Cir. 2007), and we presume that Lard’s term is reasonable because it falls
within the range suggested by the sentencing commission’s policy statement on revocation
(51 to 60 months based on a Grade A violation that occurred while on release for a Class A
felony, a criminal-history category of VI, capped by a five-year statutory maximum.)
See U.S.S.G. § 7B1.4; Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Curtis, 645
F.3d 937, 943 (7th Cir. 2011). Counsel has not identified any ground to rebut the
presumption that this term is reasonable.
Counsel next considers whether Lard could challenge the adequacy of the district
court’s explanation in rejecting his argument at sentencing that his cognitive
deficiencies—he has a relatively low I.Q score—mitigate the seriousness of his crimes. But
an appeal on this ground would also be frivolous. The court in fact acknowledged Lard’s
“functioning issues as [they] relate to . . . mental health as well as . . . educational and
mental abilities,” and found that “despite your apparent low functioning, you have a high
propensity to commit crimes; and I have to balance your need for rehabilitation with the
public’s need to be protected from future crimes by you.” The court also observed that
Lard’s prior imprisonment had done little to deter him from lawbreaking—he committed
his drug offenses mere months after being released. This explanation is more than sufficient
for purposes of satisfying the factors set forth in 18 U.S.C. § 3553(a), as incorporated by
§ 3583(e). See United States v. Neal, 512 F.3d 427, 438–39 (7th Cir. 2008).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
|
147 F.3d 1374
47 U.S.P.Q.2d 1289
APPLIED MEDICAL RESOURCES CORPORATION, Plaintiff-Appellee,v.UNITED STATES SURGICAL CORPORATION, Defendant-Appellant.
No. 97-1526.
United States Court of Appeals,Federal Circuit.
June 30, 1998.Rehearing Denied; Suggestion for Rehearing In BancDeclined Aug. 21, 1998.
William K. West, Jr., Pillsbury Madison & Sutro LLP, of Washington, DC, argued for plaintiff-appellee. With him on the brief were Michael A. Conley, and David W. Long.
J. Allan Galbraith, Williams & Connolly, of Washington, DC, argued for defendant-appellant. Of counsel on the brief were Thomas R. Bremer and John C. Andres, United States Surgical Corporation, of Norwalk, Connecticut.
Before MAYER, Chief Judge, PLAGER and SCHALL, Circuit Judges.
MAYER, Chief Judge.
1
United States Surgical Corporation appeals from the judgment of the United States District Court for the Eastern District of Virginia, Civ. Action No. 96-CV-1217 (June 10, 1997). We affirm.
Background
2
Applied Medical Resources Corporation (Applied Medical) owns United States Patents Nos. 5,209,737, 5,308,336, and 5,385,553, all relating to advances in trocar seal technology.1 Applied Medical sued United States Surgical Corporation (Surgical) for, inter alia, infringing claims 1 and 32 of the '737 patent, claims 4 and 23 of the '336 patent, and claim 18 of the '553 patent with its Versaport trocar, and for infringing claim 4 of the '553 patent with its Premium Surgiport Seal Adapter System. Surgical denied infringement and advanced an affirmative defense that the Sure-Seal floating valve and the EndoPort five millimeter trocar anticipated the asserted claims of the '553 patent. It also advanced as an affirmative defense that the inventors of all three patents failed to disclose the best mode of practicing the inventions. Surgical moved for summary judgment on the basis of these defenses. Finding factual disputes, the court denied Surgical's motion on anticipation, but deferred judgment on the alleged violations of the best mode requirement until the close of evidence.
3
The jury found all three patents infringed and not invalid. The jury also found the infringements to be willful and fixed damages at a single royalty rate of seven percent. The court denied Surgical's renewed motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law, permanently enjoined Surgical from making or selling the infringing devices, and enhanced damages to a total in excess of twenty million dollars.
4
Surgical appeals the trial court's ruling on the affirmative defenses, its decision to exclude from evidence the opinion of an administrative patent judge resolving a patent interference proceeding, and its circumscription of expert testimony relating to the possible range of means-plus-function equivalents.
Discussion
5
We review a trial court's decision on a motion for judgment as a matter of law following a jury verdict by reapplying its own standard of review. See, e.g., Dana Corp. v. IPC Ltd. Partnership, 860 F.2d 415, 417, 8 USPQ2d 1692, 1694 (Fed.Cir.1988). Therefore, for Surgical to prevail on appeal it must prove that the jury's factual findings were not supported by substantial evidence or that the facts were not sufficient to support the conclusions necessarily drawn by the jury on the way to its verdict, see, e.g., Unidisco, Inc. v. Schattner, 824 F.2d 965, 967, 3 USPQ2d 1439, 1441 (Fed.Cir.1987); D.M.I., Inc. v. Deere & Co., 802 F.2d 421, 425, 231 USPQ 276, 278 (Fed.Cir.1986); Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1512-13, 220 USPQ 929, 936 (Fed.Cir.1984), or that the trial court applied the law erroneously, see, e.g., Dana Corp., 860 F.2d at 418, 8 USPQ2d at 1695.
6
The trial court may grant Surgical's motion for judgment as a matter of law only if, upon the record before the jury, it was convinced that reasonable persons could not reach a verdict for Applied Medical. See, e.g., Railroad Dynamics, 727 F.2d at 1513, 220 USPQ at 936. Thus, on appeal we must consider the evidence of record in the light most favorable to Applied Medical, drawing all reasonable inferences in its favor, without disturbing the jury's credibility determinations or substituting our resolutions of conflicting evidence for those of the jury. See, e.g., Connell v. Sears Roebuck & Co., 722 F.2d 1542, 1546, 220 USPQ 193, 197 (Fed.Cir.1983).
Best Mode
7
The first paragraph of section 112 provides in relevant part that the specification "shall set forth the best mode contemplated by the inventor of carrying out his invention." 35 U.S.C. § 112 p 1 (1994). We have held that this analysis includes two components:
8
The first is whether at the time the inventor filed his patent application, he knew of a mode of practicing his claimed invention that he considered to be better than any other. This part of the inquiry is wholly subjective, and resolves whether the inventor must disclose any facts in addition to those sufficient for enablement. If the inventor in fact contemplated such a preferred mode, the second part of the analysis compares what he knew with what he disclosed--is the disclosure adequate to enable one skilled in the art to practice the best mode or, in other words, has the inventor "concealed" his preferred mode from the "public"? Assessing the adequacy of the disclosure, as opposed to its necessity, is largely an objective inquiry that depends upon the scope of the claimed invention and the level of skill in the art.
9
Chemcast Corp. v. Arco Indus. Corp., 913 F.2d 923, 927-28, 16 USPQ2d 1033, 1036-37 (Fed.Cir.1990). Because the first component focuses on the applicant's state of mind, a question of fact, we review this aspect of the jury's verdict for substantial evidence. See, e.g., In re Hayes Microcomputer Prods., Inc., 982 F.2d 1527, 1536, 25 USPQ2d 1241, 1248 (Fed.Cir.1992); Chemcast, 913 F.2d at 928, 16 USPQ2d at 1037. In so doing, we observe that an applicant is obliged to disclose nonclaimed elements necessary to the operation or carrying out of the invention to which the patent is directed. See, e.g., Dana Corp., 860 F.2d at 418, 8 USPQ2d at 1695 (fluoride surface treatment "necessary to satisfactory performance of [the] seal"); Chemcast, 913 F.2d at 928, 16 USPQ2d at 1037. However, where the invention relates only to a part of, or one aspect of, a device, an applicant is not required to disclose a nonclaimed element necessary to the operation of the overall device, but not necessary to the operation of the invention to which the patent is directed.
10
Surgical correctly notes that each asserted claim contains a trocar seal limitation and that the patents disclose a preference for a soft, stretchy and sticky seal made of low durometer polymer material, such as C-flex TM. From these facts, Surgical concludes that the patents are invalid for failing to disclose the use of Parylene-C--which at some point became the preferred lubricant for coating the seal--because a coating, such as Parylene-C, is necessary to prevent tearing.2
11
Surgical relies on the testimony of a named inventor, Mark Ritchart and the testimony of a technical expert, Ronald Luther, to prove that the three inventions could not work without Parylene-C. However, Applied Medical challenged this testimony with the testimony of Charles Hart and Barry Feinberg, and the cross-examination of Ritchart, explaining that while a lubricant like Parylene-C is necessary to the operation of the trocar and the seal, it plays no role in the functioning of the pre-seal dilator, the seal protector, and the floating seal, which, Messrs. Hart and Feinberg explained, are the inventions to which the '737, '336, and '553 patents are directed, respectively.
12
It is evident from the patents that they are directed to the inventions of a seal pre-dilator, a seal protector, and a seal floater. It is in this respect that we reach a different result than we did in Dana Corp., 860 F.2d 415, 8 USPQ2d 1692, where the fluoride surface treatment was necessary to satisfactory performance of the invention to which the patent was directed, the valve stem seal. Although both Surgical and Applied Medical present arguments about the proper interpretation of the conflicting testimony as to the relevance of Parylene-C, there is substantial evidence to support the jury's presumed finding on the matter. In sum, there is substantial evidence to support the jury's verdict that Surgical failed to prove by clear and convincing evidence that the inventors violated the first component of section 112's best mode disclosure requirement.
Anticipation
13
"A person shall be entitled to a patent unless ... the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." 35 U.S.C § 102(b) (1994). We have interpreted this statute as requiring a party seeking to invalidate a patent to prove that the allegedly invalidating patent or publication contains "each and every element of [the] claimed invention." Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747, 3 USPQ2d 1766, 1767 (Fed.Cir.1987); see also In re Graves, 69 F.3d 1147, 1151, 36 USPQ2d 1697, 1700 (Fed.Cir.1995) (whether a reference is anticipatory is a question of fact). A party seeking to prove anticipation must do so with clear and convincing evidence because the patent must be presumed valid. See, e.g., Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed.Cir.1987); American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360, 220 USPQ 763, 770 (Fed.Cir.1984). Thus, the legal question on appeal is whether the jury had substantial evidence upon which it could conclude that Surgical failed to prove by clear and convincing evidence that a patent or publication contained each and every element of the '553 patent claims.
14
Surgical contends that each and every element in the asserted claims of the '553 patent was present in both the EndoPort 5 millimeter trocar that was commercially available in the mid-1980s and the SureSeal valve that Applied Medical demonstrated at a medical conference in April 1992. Because the '553 patent was filed on June 15, 1993, the April 1992 demonstration of a trocar containing the SureSeal valve can be invalidating only if the '553 patent is not entitled to a filing date that precedes April 1992. See, e.g., Kennecott Corp. v. Kyocera Int'l, Inc., 835 F.2d 1419, 1421, 5 USPQ2d 1194, 1197 (Fed.Cir.1987) (a continuation-in-part application is entitled to the filing date of an earlier filed application if "the inventor had possession of the later-claimed invention on the filing date of the earlier application" and disclosed the invention in the earlier filed patent).
15
To begin with, Surgical misses the import of the district court's review. On appeal, Surgical states: "Surgical must show that there is no substantial evidence that would support a jury determination that Applied's own SureSeal trocar did not anticipate the '553 claims at issue. But, given that this was undisputed, the real issue was whether the '553 patent was entitled to the '737 or '336 priority date...." The allegedly undisputed evidence to which Surgical referred is Luther's testimony comparing defendant's exhibit 273, the SureSeal valve brochure, to the fifth element of the '553 patent's eighteenth claim. This testimony reads in relevant part:
16
Q. And directing your attention to the means plus function in the last clause, does that show--or what is it in that drawing that satisfies Element 5 of the means plus function claim?
17
A. It depicts the levers, seal, and that sort of thing.
18
Q. The portion of Element 5, as the Court has construed it, relates to the possibility of two elements, either a bump or an excess of material, or a ring with levers.
19
Are either of these structures set forth in the variable diameter seal drawing as shown here?
20
A. The ring with levers is set forth there.
21
Q. Is there any excess material shown on that drawing as well?
22
A. Yes, there is.
23
Q. And where is that excess material shown relative to the levers?
24
A. It's just outboard of the--if you take the bottom of the seal and you go up one piece of the diagram and you go outboard, you see the bump there.
25
The fact that Applied Medical did not contest this point with testimony from one of its own experts no more resolves the factual question in Surgical's favor, see, e.g., Rohm & Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092, 44 USPQ2d 1459, 1462 (Fed.Cir.1997) (affirming district court's finding of infringement despite unrebutted expert testimony to the contrary because "[n]othing in the rules or in our jurisprudence requires the fact finder to credit the unsupported assertions of an expert witness"), than it satisfies the legal standard requiring judgment as a matter of law. The proper question we must ask, as did the district court, is whether the jury had substantial evidence upon which to conclude that Surgical failed to prove by clear and convincing evidence that the SureSeal trocar discloses each and every element and thus anticipates the '553 patent. The trial court determined that it did.
26
Luther did testify that each and every element of the '553 [patent] was disclosed in the Sure-Seal materials, but it is possible, given the trial as it proceeded, that the jury could have concluded that this testimony was not credible.
27
When he was asked why the Sure-Seal drawing satisfied Element 5 of the '553 Patent's means plus function claims, he said it depicts levers, seal and that sort of thing.3
28
That's not the kind of overwhelming evidence needed. So, in the Court's view there is and there was some evidence to the contrary, and I the [sic] think that the jury could have concluded that Surgical didn't met [sic] its heavy burden of showing invalidity.
29
For the same reason delicately articulated by the district court in its oral ruling, we see no reason to hold otherwise. See, e.g., Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1570, 1 USPQ2d 1081, 1084 (Fed.Cir.1986) ("[A] jury or a court may reach a conclusion that a patent remains valid solely on the failure of the patent challenger's evidence to convincingly establish the contrary."). We acknowledge the various reasons found throughout the record for why Luther's testimony may not be credible, but any credibility determination is not ours to remake. In sum, we cannot say that the jury lacked substantial evidence upon which to conclude that Surgical failed to prove by clear and convincing evidence that claims 4 and 18 of the '553 patent were anticipated by Applied Medical's own SureSeal trocar.
30
As for anticipation by the EndoPort 5 millimeter trocar, Surgical's witnesses, Luther and Murphy, testified that the EndoPort trocar possessed a bellows structure that permitted off-axis insertion of an instrument through the trocar and permitted the seal to float--both elements being required by claims 4 and 18 of the '553 patent. Luther and Murphy explained that the EndoPort trocar had bellows that permitted off-axis insertion of the instrument and floating of the seal, as well as ribs on these bellows, which were designed to prevent the seal from inverting when the instrument was removed. Surgical also had Murphy demonstrate floating movement of the seal and off-axis manipulation using the EndoPort trocar and a balloon. Finally, Surgical presented evidence that at one point the manufacturer of the EndoPort trocar referred to a portion of its seal as "bellows."
31
Applied Medical countered this evidence with testimony from Feinberg, who stated that while the EndoPort trocar's seal could move, the ribs--incorporated to prevent inversion of the seal--prevented the bellows from floating and from being manipulated off-axis without creating a "cat's eye" through which insufflation gas would leak. Applied Medical further supported this testimony with portions of Murphy's testimony, and with the fact that Murphy's demonstrative balloon deflated significantly during manipulation intended to simulate off-axis and floating movements.
32
The fact that the EndoPort trocar can be moved, off-axis, did not require the district court to grant Surgical's motion for judgment as a matter of law on its anticipation defense. While the experts may use the same words, such as "floating" and "bellows," to describe both the '553 patent and the EndoPort's seal, it is apparent that they are being used in different ways to connote different intended functions. The EndoPort trocar cannot anticipate the '553 patent simply by possessing identically named parts, unless these parts also have the same structure or otherwise satisfy the claim limitations, and were understood to function in the same way by one skilled in the art. Cf. Intellicall, Inc., v. Phonometrics, Inc., 952 F.2d 1384, 1388, 21 USPQ2d 1383, 1386 (Fed.Cir.1992) (An inventor may "be his own lexicographer and ... give terms uncommon meanings."). It was within the province of the jury to make such findings, and given the testimony and its credibility determinations we cannot say the jury did not have substantial evidence upon which to conclude that Surgical did not prove by clear and convincing evidence that the EndoPort trocar anticipated the asserted claims of the '553 patent.
Infringement
33
We review evidentiary rulings of the district court for abuse of discretion, and interfere with its judgment only if an erroneous ruling prejudiced substantial rights. See, e.g., Kolmes v. World Fibers Corp., 107 F.3d 1534, 1542, 41 USPQ2d 1829, 1834 (Fed.Cir.1997). Surgical argues that the trial court abused its discretion by excluding the opinion of an administrative patent judge, Ritchart v. Green, Interference No. 103,459 (March 21, 1996), resolving an interference proceeding between U.S. Patent Appl'n No. 08/185,102 (Green application) and the '737 patent, and that by excluding this opinion the district court prejudiced Surgical's substantial rights.
34
The administrative patent judge's order said that while the Green application's "thin and flexible 'fingers' may assist in enlarging the orifice by distributing the expansive force and spreading it throughout the membrane material when an instrument contacts the fingers, [the '737 patent's] rigid levers concentrate and focus the enlarging force in the lateral direction and with a mechanical advantage not obtainable with Green's soft and flexible 'fingers.' " Thus, it reasoned: "Given either structure or configuration as prior art, the other would not have been obvious to one with ordinary skill in the art." Surgical argued that the accused Versaport trocar is very similar to the Green patent and thus sought to introduce this opinion as part of the '737 patent's file wrapper used by its technical expert, Luther, to arrive at his opinion that there are more than insubstantial differences between the '737 patent and Surgical's Versaport trocar.
35
The district court sustained Applied Medical's objection to the introduction of the administrative patent judge's opinion because:
36
This is an issue of fact, on whether something is insubstantial. The ... ALJ's opinion will really preempt that from the jury's determination.
37
This expert is ... a technical expert. He can give an opinion as to what is insubstantial, and he would no more be able to rely on that than he would be if some judge in the Southern District of New York had said it, or somewhere else.
38
* * *
39
Nothing I have said prevents you [Surgical] from eliciting from this expert [Luther] that he believes that there is an insubstantial difference, and why--and if those reasons are the same reasons that the ALJ gave, there is nothing to prevent him from saying that.
40
* * *
41
What I am precluding is him saying, "And by the way, there is a[sic] administrative law judge in the course of this interference who agrees with me."
42
This narrow exclusion prevented Surgical from augmenting the credibility of its expert's testimony by aligning it with the administrative patent judge's factual finding. Such alignment could conflate factual inquiries--the administrative patent judge's finding and a finding on the substantiality of differences between the '737 patent and the Versaport trocar--in a way that might prejudice or overshadow the latter, more directly relevant finding. By permitting Surgical to present through expert testimony the same arguments it made during the interference, the trial court's decision left the administrative patent judge's factual inquiry to the province of the jury. This also left the jury, unfettered by possible bias and untimely distractions, to address the essential factual inquiry of whether the '737 patent claims read on the Versaport trocar, as well as the tangential question of whether the Green application claims read on Surgical's Versaport trocar.
43
For these reasons, we cannot say that the trial court's exclusion of evidence that may be more prejudicial than probative was an abuse of its discretion. Nor can we say that Surgical's substantial rights were prejudiced by want of whatever support the administrative patent judge's opinion would contribute to Luther's testimony. Luther's credibility as an expert and the probative quality of his testimony come from his experience, presentation, and reasoning, and not those of the administrative patent judge. There also is no evidence that this evidentiary ruling adversely affected the trial court's post-verdict enhancement of damages.
44
Finally, Surgical argues that the district court erred in excluding certain testimony from Luther about the scope of means-plus-function equivalents that the jury could consider in a direct infringement analysis. For example, in response to the question "And why did you find [the Green, Yoon, and Honkanen patents] helpful to your analysis on the question of equivalents?," Luther testified, "Well, if it's in the prior art, anything in the prior art, it's not available as an equivalent for purposes of considering infringement." This evidentiary ruling was not an abuse of the trial court's discretion, not only because Luther was being asked to testify beyond the scope of his expertise as a technical witness, but also because Luther's response to Surgical's questions can be relevant only under an erroneous construction of the law. See, e.g., Intel Corp. v. United States Int'l Trade Comm., 946 F.2d 821, 842, 20 USPQ2d 1161, 1179 (Fed.Cir.1991) ("It is not necessary to consider the prior art in applying section 112, paragraph 6. Even if the prior art discloses the same or an equivalent structure, the claim will not be limited in scope thereby. It is only necessary to determine what is an equivalent to the structure disclosed in the specification which is performing the function at issue.").
Conclusion
45
Accordingly, the judgment of the United States District Court for the Eastern District of Virginia is affirmed.
46
AFFIRMED.
1
The '553 patent is a continuation-in-part of the application that matured into the '336 patent, which is a continuation-in-part of the application that matured into the '737 patent
2
Parylene-C reduces the friction coefficient of the seal
3
By contrast, claim 18 of the '553 patent claims: "means disposed circumferentially outwardly of the valve portions for supporting the valve portions within the seal housing, the supporting means being movable relative to the housing to permit the valve portions to float relative to the axis of the cannula."
|
963 N.E.2d 248 (2012)
357 Ill. Dec. 295
PEOPLE
v.
HOSKINS.
No. 113440.
Supreme Court of Illinois.
January 1, 2012.
Disposition of petition for leave to appeal Denied.
|
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2004
Charles R. Fulbruge III
Clerk
No. 04-10073
ASHRAF IBRAHIM, also known as Ash Abraham
Plaintiff - Appellant
v.
UNISTAR FINANCIAL SERVICES LLC, ET AL
Defendants
UNISTAR FINANCIAL SERVICES LLD; UNISTAR FINANCIAL SERVICE CORP;
ESTATE PAINT & BODY OF TEXAS LLC; US FIDELITY HOLDING CORP; F
JEFFREY NELSON; JAMES LEACH; MORRIS B BELZBERG; PATRICK
RASTIELLO; BRENT BROWN; PAUL CARVER; DOUGLAS GERRARD
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas, Dallas
No. 3:02-CV-1296-N
Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
A jury in the Northern District of Texas entered a take-
nothing verdict in Plaintiff-Appellant Ashraf Ibrahim’s suit
against Unistar Financial Service Corp, several affiliated
*
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.
-1-
entities, and directors and officers. Ibrahim appeals. He
argues first that the district court incorrectly charged the jury
on the standard of care applicable to a corporation’s directors
and officers, having used Texas law when Delaware law should have
been applied. Ibrahim is correct on one point: Delaware law
should have been applied. We agree with the defendants-
appellees, however, that Ibrahim did not, in his challenge to the
jury instruction, state “distinctly the matter objected to and
the grounds of the objection,” as required by Fed. R. Civ. P. 51.
His objection did not mention Delaware law, nor did it set forth
what he viewed as the correct instruction. Hence, we review for
plain error. We cannot discern from Ibrahim’s brief how a
Delaware-based instruction would have differed in any material
way from the instruction given, nor can we see what difference it
would have made to the outcome here. This point of error fails.
Ibrahim’s second point on appeal relates to a breach of
contract claim. At trial, Ibrahim had a variety of theories
underlying this claim, but on appeal he briefs only the issue of
whether stock restricted under Rule 144 (17 C.F.R. § 230.144)
satisfies the contractual promise of “publicly trading” stock.
All defendants except Unistar Financial Services, LLC (“LLC”)
argued that they were not parties to the contract and could not
be liable for any alleged breach. The district court agreed with
that argument and entered a directed verdict for all the
defendants except LLC. The jury found for LLC. Ibrahim does not
-2-
quarrel with the jury instruction with its premise that, as a
matter of law, the shares issued to Ibrahim were required to be
so restricted. In short, he points to no error in the district
court that would justify vacating the jury verdict on this point.
If what he wanted was unrestricted shares of a publicly trading
stock, he should have structured the deal differently.
Finally, Ibrahim argues that the defendants tortiously
interfered with the employment contract between him and Estate
Paint and Body of Texas, LLP (“Estate”). The district court
granted a directed verdict on this point, holding that the
defendants were corporate affiliates or directors of LLC, the
parent of Estate, and could not, as a matter of law, interfere
with the employment contract. In his brief, Ibrahim argues only
that Morris Belsberg, a director, had a conflict of interest
which could serve as a basis for concluding that his actions were
motivated by personal interests. The jury, however, found that
Belsberg had not breached his duty of loyalty, and Ibrahim does
not challenge this finding. This would preclude any liability
for interference with the employment contract.
The judgment of the district court is AFFIRMED.
-3-
|
196 F.2d 20
SARDOv.McGRATH, Attorney General of United States, et al.
No. 10363.
United States Court of Appeals District of Columbia Circuit.
Argued November 21, 1951.
Decided January 31, 1952.
Jack Wasserman, Washington, D. C., with whom Irving Jaffe, Washington, D. C., was on the brief, for appellant.
Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., with whom George Morris Fay, U. S. Atty. at the time the brief was filed, Washington, D. C., was on the brief, for appellees. Charles M. Irelan, U. S. Atty. at the time of argument, and Joseph F. Goetten, Asst. U. S. Atty., Washington, D. C., also entered appearances on behalf of appellees.
Before EDGERTON, WILBUR K. MILLER, and BAZELON, Circuit Judges.
BAZELON, Circuit Judge.
1
Appellant, a native of Italy, entered this country in 1923. He was naturalized as a United States citizen in 1930, only to be denaturalized five years later. He was arrested in deportation proceedings in 1938. Shortly thereafter, an order of deportation was issued, the grounds being that (1) he had entered Canada in 1937 and returned to the United States within a few days without a visa; (2) he admitted he had committed perjury in procuring his naturalization prior to the 1937 re-entry. In 1946, the proceedings giving rise to the deportation order were reopened by the immigration authorities in an attempt to determine "whether there was a record" of the visa-less border crossing. Following a hearing, the 1938 order was reaffirmed. The validity of this latest decision is challenged by appellant in this suit for a declaratory judgment. He complains that the reaffirmed order "was based upon an unfair and illegal hearing and evidence improperly introduced" and that there was no substantial evidence that he had last entered the United States in 1937. Two other allegations,1 which loomed large in the argument presented in the briefs, have been taken out of the area of controversy by subsequent developments.2
2
Pursuant to appellees' motion to dismiss, the District Court entered an order dismissing the complaint with prejudice. Since no opinion was filed, the reasons for this action can only be inferred from the arguments advanced at the trial by appellees. The first of these — that there is no jurisdiction to review deportation orders except upon petition for a writ of habeas corpus — has been disposed of by Kristensen v. McGrath, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, holding such orders reviewable by way of suit for declaratory judgment. The second — that the complaint fails to state a cause of action — requires more extended consideration. Appellees do not contend on appeal that the complaint, standing alone, does not state a claim upon which relief could be granted. Nor could they successfully advance such a contention. Although clarity is not one of the virtues of this complaint, all parties were aware that, when appellant alleged that "an ex parte investigation was made and an ex parte report of the said investigation was considered in determining the issue of plaintiff's last entry into the United States," he was complaining of the denial of his right to cross-examine the authors of the report. There is ample authority for the proposition that such a denial violates due process if it can be demonstrated to have been prejudicial.3 And this in turn, as appellees recognize, depends upon whether the "ex parte evidence is vital to the decision."4 This is a matter of proof which cannot be resolved on a motion to dismiss.
3
What appellees do argue, however, is that the District Court inadvertently phrased its order in terms of dismissal of the complaint. What was really intended, they continue, was entry of a summary judgment in their favor. If their view is correct, then the District Court determined that matters presented to it outside the complaint dispelled what, at first blush, appeared to be issues of fact and left no genuine issue of material fact to be tried.
4
The thread of appellees' argument begins with Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which authorizes the trial court, when confronted with a motion to dismiss for failure to state a claim, to treat it as a motion for summary judgment, if "matters outside the pleading are presented to and not excluded by the court". Appellees contend that certain statements of fact contained in their memorandum of points and authorities filed below were such "matters presented to * * * and not excluded" and hence resulted in what really was an order for summary judgment.
5
The statements referred to were a brief summary of exhibits filed in the deportation proceeding. Neither the record in that proceeding nor the exhibits in question were reproduced below. Yet the reliance placed upon them by appellees in the trial memorandum referred to indicates their critical importance in this case.
6
Whether or not a summary of this kind, drawn up by an attorney and included in his memorandum of points and authorities, can qualify as "matters presented" within 12(b) depends, in our view, upon whether it is the sort of material contemplated by Rule 56. The latter is the definitive rule concerning summary judgment; Rule 12(b) merely provides one means of arriving at that end. It does not enlarge the record on which a summary judgment may be granted under Rule 56. Rule 56(c) says that summary judgment shall be granted "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, 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." Thus, the extra-pleading matters presented must be either "depositions," "admissions" or "affidavits". All three possess certain characteristics which make them fitting instruments for cutting through a possible maze of false, illusory or collateral issues raised by loosely-drawn pleadings. As the sworn statements of those who have first-hand knowledge of that about which they speak, they partake not only of the ceremonial quality of testimony in open court, but also of some of the guarantees of trustworthiness which characterize such testimony.5
7
In marked contrast, memoranda of points and authorities are no more than trial briefs which must be filed with each motion presented to the District Court. They must state "the specific points of law and authorities to support the motion" and are expressly not made part of the record.6 Such memoranda are neither mentioned in Rule 56 nor, in our view, may they be classed inferentially among the documents in which extra-pleading matters may be presented for purposes of summary judgment. Neither the Federal Rules nor custom at the bar contemplate transformation of legal memoranda into a new vehicle of factual conflict. Certainly, attorneys do not ordinarily conceive that they proceed at their peril if they fail to controvert allegations of fact made by opposing attorneys in their briefs.7 To accept appellees' view would be to introduce a confusing system of collateral pleading which could only detract from the relative simplicity of present summary judgment practice.
8
We think the emphasis in summary judgment practice has been, and must continue to be, on actual notice. This is made clear not only by Rule 56 itself but also by Rule 12(b), which expressly provides that when extra-pleading matters are presented, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Without such notice that allegations of fact are being made for the record, there is no real opportunity to enter the responses necessary to create the "genuine issue of material fact" which can stave off summary judgment.
9
In the present case, the record contains only the allegations which we have described at the outset of this opinion. On the basis of those allegations, appellant is entitled to a responsive pleading. We do not say that the need for such a pleading might not be dispelled by properly filed affidavits, depositions, etc., which demonstrate that, on a particular theory of law, there is no genuine issue of material fact posed by the complaint. As we have indicated, however, this case has not reached such a posture.
10
It should be noted that certain limited types of assertions contained in memoranda of points and authorities — those which are patently not subject to challenge or contradiction and which relate to assurances of future conduct — may constitute "matters presented" within the meaning of Rule 12(b). Allison v. Mackey, 1951, 88 U.S.App.D.C. 154, 188 F.2d 983. But we will not extend this limited category to matters which may be subject to challenge. Here, for example, the summary discussed above shows on its face that there was conflicting evidence about an admission alleged to have been made by appellant.
11
We conclude that the order below was not one for summary judgment but was what the District Judge said it was: an order dismissing the complaint with prejudice. Nor can we accept the view that dismissal "with prejudice" lends support to the argument that summary judgment was granted. "The motion to dismiss for failure to state a claim raises matter in bar and, if sustained without leave to proceed further, results in a judgment on the merits."8
12
The order of the District Court is reversed and the case remanded for further proceedings consistent with this opinion. If, upon such proceedings, the trial court finds appellant was properly ordered deported, appellant should then be permitted to choose his destination in conformity with appellees' supplemental brief in this court.
13
Reversed and remanded.
14
WILBUR K. MILLER, Circuit Judge, concurs in the result.
Notes:
1
Paragraph 12 of the complaint alleges in pertinent part:
"(c) Deportation to Italy was not authorized without evidence establishing that plaintiff could not be returned to Canada and was still a citizen or subject of Italy and the defendants refused and neglected to permit the introduction of evidence on this issue.
(d) Deportation to Italy was not authorized by law." Joint App. p. 14.
2
Appellees conceded in their Supplement to Brief for Appellees, filed November 20, 1951, that by virtue of the amendment to 8 U.S.C.A. § 156 contained in § 23 of the Internal Security Act of 1950, enacted on September 23, 1950, appellant is now entitled to choose between Italy and Canada as the country to which he should be deported. They therefore urge reversal for the limited purpose of permitting appellant to make a selection
3
Maltez v. Nagle, 9 Cir., 1928, 27 F.2d 835; Svarney v. United States, 8 Cir., 1925, 7 F.2d 515;cf. In re Sugano, D.C. S.D.Cal.1930, 40 F.2d 931; and see Hays v. Sesto, 8 Cir., 1926, 12 F.2d 698.
4
See Brief for Appellees, pp. 7, 12
5
Even prior to the 1946 amendment to Rule 12(b) which specifically authorized the consideration of matters outside the pleadings on a motion to dismiss under Rule 12(b) (6), several courts had granted the motion on the basis of matters outside the pleadings. These matters were presented by such means as affidavits, National War Labor Board v. Montgomery Ward, 1944, 79 U.S.App. D.C., 200, 144 F.2d 528; letters and a contract submitted by stipulation, Locals No. 1470, etc., of Int'l Longshoremen's Ass'n v. Southern Pac. Co., 5 Cir., 1942, 131 F.2d 605; and certified copies of a claim for tax refund and letters relating thereto, Samara v. United States, 2 Cir., 1942, 129 F.2d 594
6
Rule 9(b), Rules of the United States District Court for the District of Columbia provides: "With each motion there shall be filed and served a separate paper stating the specific points of law and authorities to support the motion. Such statement shall be additional to a statement of grounds in the motion itself, and shall be entered on the docket but shall not be a part of the record. The moving party shall enter the motion and the fact of filing the statement on a card provided by the clerk."
7
Appellees take the position that they were under no obligation to prove the facts asserted in their trial memorandum unless they were controverted. The error of this position is that appellant was put under no notice to deny the allegations in the memorandum of points and authorities
8
2 Moore, Federal Practice 2257 (2d Ed.)
|
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CC-00013-SCT
RONNIE ALEXANDER, ET AL.
v.
MISSISSIPPI DEPARTMENT OF EMPLOYMENT
SECURITY AND MISSISSIPPI POLYMERS
DATE OF JUDGMENT: 12/06/2007
TRIAL JUDGE: HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: CHARLES R. WILBANKS, SR.
ATTORNEYS FOR APPELLEES: LEANNE FRANKLIN BRADY
WENDELL H. TRAPP, JR.
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 11/06/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. Aggrieved by the Alcorn County Circuit Court’s judgment affirming the Mississippi
Department of Employment Security’s denial of unemployment benefits, Ronnie Alexander
and ninety-seven other employees of Mississippi Polymers, Inc., appeal to us. Finding no
error, we affirm.
FACTS AND ADMINISTRATIVE PROCEEDINGS
¶2. On November 29, 2006, Mississippi Polymers, Inc. (MPI), located in Corinth, issued
a memorandum to employees entitled “Volunteers to Work Christmas Shutdown.” This
memorandum stated that the year-end inventory would be performed during the first shift on
Monday, December 18, 2006, and if necessary, on Tuesday, December 19, 2006; that four
people from the 1A shift/crew were needed to work in Plant Service “during the Christmas
shutdown” with the work beginning at 7:00 a.m. on December 18, 2006, and ending at 3:00
p.m. on January 2, 2007, except that no work would be performed from December 22, 2006,
through December 25, 2006, and from December 29, 2006, through January 1, 2007; and that
volunteers were needed to perform equipment maintenance from December 17, 2006,
through January 2, 2007, except that, just as with the work in Plant Service, no maintenance
work would be performed from December 22, 2006, through December 25, 2006, and from
December 29, 2006, through January 1, 2007. The memorandum further provided that
workers wishing to volunteer should sign one of the posted volunteer lists, which would be
removed on Friday, December 8, 2006, at 7:00 a.m. Finally, this memorandum referenced
the Labor Agreement which MPI had with Local Union No. 759L and the United
Steelworkers of America “concerning crew bonuses and shift premiums for this shutdown
work,” and further provided that “[m]aintenance volunteers will be paid a shift/crew
premium for whatever shift/crew they work during the shutdown.” If more volunteers signed
up than were needed, the volunteer workers would be chosen based on seniority, consistent
with the Labor Agreement.
2
¶3. Also on November 29, 2006, a notice to all employees referencing “2006 Christmas
and New Year’s Holidays” was posted on bulletin boards throughout the MPI facility. This
notice provided information very similar to the just-discussed memorandum. Also, this
notice stated, inter alia, that continuous operating schedules for the Calendar, Laboratory,
Quality Control, Shipping, Plant Service, and Materials Departments would be suspended
from 7:00 p.m. on Sunday, December 17, 2006, until 7:00 p.m. on Tuesday, January 2, 2007;
and that noncontinuous operations, including Laminating, Print, Inspection, Laboratory,
Quality Control, Plant Service, and Shipping, would be suspended from 3:00 p.m. (and
Materials from 11:00 p.m.) on Friday, December 15, 2006, until 7:00 a.m. on Wednesday,
January 3, 2007. This notice likewise stated that Friday, December 22, and Monday,
December 25, would be observed as the Christmas Holidays; and that Friday, December 29,
and Monday, January 1, would be observed as the New Year’s Holidays.1
¶4. On December 20, 2006, Ronnie Alexander, along with ninety-seven other MPI
employees (claimants),2 filed unemployment benefit claims with the Mississippi Department
of Employment Security (MDES).3 On December 21, 2006, Donna Weston, MPI Human
Resources Manager, wrote a letter to Dale Groves at the MDES claims center in Corinth.
1
Article V, Section 5 of the Labor Agreement provided for holiday pay for the therein
specified holidays, including the Christmas and New Year’s holidays.
2
For the sake of clarity, we will refer to these employees who filed claims for
unemployment benefits either as “claimants” or collectively as “Alexander.”
3
All of the other employees filed their claims within a few days of Alexander’s filing.
3
This letter confirmed a telephone conversation between Weston and Groves and explained
that the “maintenance shutdown” from December 17, 2006, until approximately January 2,
2007, “is not a lack of work situation” and that “[w]e have had these type shutdowns for
thirty plus years.” This letter also confirmed the fact that after conferring with the MDES
office in Jackson, Groves informed Weston that MPI employees “would not be eligible for
the benefits during this [shutdown] period.” Finally, the Weston-to-Groves letter confirmed
that on December 21, 2006, MPI had received more than fifty claims for unemployment
benefits but that Groves had advised Weston that, since MPI had previously informed MDES
that “this was not a lack of work situation but instead a designated maintenance shutdown
. . . the employees are not eligible for benefits.”
¶5. On January 9, 2007, MDES sent the claimants a Notice of Nonmonetary Decision,
which stated, inter alia:
It is found that, with respect to your employment status, the weeks ending
December 23, 2006, [and] December 30, 2006, are a designated holiday recess
or vacation period. Your continued claims for such weeks are, therefore,
disallowed because you were not available for work within the meaning of the
Law.
However, on February 23, 2007, MDES sent MPI a Notice to Employer of Claims
Determination which stated that MDES had determined that MPI “was not closed due to a
designated holiday or vacation period during the weeks ending December 23, 2006 and
December 30, 2006,” and that, therefore, “the decisions denying benefits to individuals who
filed claims for unemployment benefits during this time have been reversed.” MPI promptly
appealed this adverse ruling.
4
¶6. On April 24, 2007, a hearing was conducted before the MDES, Administrative Law
Judge Cindy C. Gill presiding. The sole issue considered was “whether or not the claimant
[was] prima facie unavailable for work due to a holiday period or vacation for week(s)
ending December 23, 2006, and December 30, 2006." Weston testified that all of the
claimants were still currently employed at MPI. Weston likewise testified that the plant was
not in operation during the weeks in question because it was “closed due to a maintenance
shutdown that we have each year to perform maintenance work on the equipment, machinery
and equipment that cannot be completed when the plant is in operation.” Weston stated that
the scheduled maintenance shutdown had occurred each year for the almost-thirty years that
she had been employed at MPI and that she believed the shutdowns had occurred even before
she began working there. The machinery had to be completely shut down to do the
scheduled maintenance, she said. The normal procedure each year was that notices were
posted on bulletin boards and given to the union president in the late months of the year to
inform employees of the specific dates of the yearly shutdown.
¶7. The notice for the 2006 shutdown was posted on November 11, 2006, and this notice
was entitled “2006 Christmas and New Year’s Holidays.” The notice included a note which
stated “Friday, December 22 and Monday, December 25 will be observed as the Christmas
Holidays. Friday, December 29 and Monday, January 1 will be observed as the New Year’s
Holidays.” MPI’s agreement with the claimants’ union stated that employees would have
Christmas Eve, Christmas Day, New Year’s Eve, and New Year’s Day as paid holidays.
Each of these holidays was defined by the agreement as being twenty-four hours. If one of
5
the paid holidays fell on Saturday or Sunday, MPI designated the Friday before or the
Monday after as the paid holiday. Accordingly, the employees received four days of pay
during the holiday shutdown and no pay for the remaining days. Weston testified that the
entire shutdown was not a holiday shutdown, but instead it was a maintenance shutdown.
Employees who were not selected to work during the shutdown were paid only for the four
designated holidays. Memos concerning the shutdown period dating back to 1991 were
submitted as part of the record at the hearing. According to these yearly memos, the shortest
shutdown for any given year was from December 23 until January 1.
¶8. The evidence adduced at the hearing before the ALJ revealed that the yearly memo
always gave the date that employees were expected to return to work. If the employee failed
to return to work on the first day after the scheduled shutdown, the employee forfeited
holiday pay. A shutdown for lack of work differed from the Christmas shutdown because,
typically, only one maintenance employee and one supervisor worked in order to prevent
fires, whereas with the scheduled Christmas shutdown, employees could sign up voluntarily
to work specified tasks. MPI experienced a lack-of-work shutdown during the week of
Thanksgiving in 2006. The memo sent to employees stated that MPI anticipated some
decrease in orders for the remainder of the year but also stated that new programs were
expected for 2007.
¶9. Page 20 of the Union Labor Agreement references the shutdown and maintenance
cleanup period:
6
1. Employees scheduled or volunteering to work inventories and vacation
shutdowns will be paid their straight time base hourly rate for the time
worked. All shift premiums, crew bonuses, and crew free pay will not be paid
for this work. Employees working Maintenance Clean-up during shutdown
will receive Maintenance Entry Rate Pay or their regular hourly rate,
whichever is the greater.
2. If a Holiday occurs during the plant shutdown, the employee will receive
Holiday Pay based on his regular crewing. If an employee works on the
Holiday, he will be paid double time for time worked based on the shutdown
crewing.
Article V of Labor Agreement (emphasis added). Also, the Labor Agreement states on
pages 22-23:
2. When [any of the company holidays] fall on a Saturday or Sunday, the
Company shall, at its option, designate the following Monday or preceding
Friday as an observed holiday. When any of the above holidays fall during a
vacation close-down period the Company shall, at its option, designate a
Friday or Monday included in the vacation close-down period, as the day to
be observed as the holiday for those employees not scheduled to work during
the vacation close-down period. The day observed as the holiday shall be
based upon production requirements as determined by the Company.
....
5. Employees who are laid off in a work week in which a holiday occurs or in
a week preceding the week in which a holiday occurs shall be paid for such
holiday provided the employee works his last scheduled shift prior to the
holiday.
6. Employees returning to work from lay off during the week in which the
holiday occurs or during the week following the week in which the holiday
occurs shall be paid for such holiday provided the employee works his first
shift after the holiday.
(Emphasis added). The Labor Agreement also references the Christmas shutdown on page
70:
If the plant is closed for vacation or Christmas shutdown or employee is on
vacation they (sic) will receive three (3) days funeral pay.
7
(Emphasis added).
¶10. Weston contended that the shutdown was the yearly scheduled occurrence rather than
a lack-of-work situation, as MPI had experienced in the past. This was the longest shutdown
that MPI had ever scheduled at the holiday season. More employees signed up to work than
MPI needed for the work during the shutdown and therefore, employees were chosen by
seniority. Approximately thirty employees, plus the maintenance crew, were called to work
from the sign-up sheets during the shutdown. However, some of the employees who filed
unemployment claims did not even sign up to work voluntarily. MPI filled a typical number
of positions during the shutdown.
¶11. Mark Casto, a fifteen-year MPI employee and the recording secretary for the
employees’ union, also testified at the hearing before the ALJ. According to Casto, he was
told that MPI was going to shut down and that employees who wanted to work during that
period could sign up for work based on seniority. The procedure was handled as it had been
in previous years, but it was the longest holiday shutdown he could recall. Employees who
did not sign up would not be able to work, but there was no guarantee that those employees
who did sign up would be given work because of seniority limitations. Employees knew that
there would be no work available during the shutdown if they did not sign up or were not
chosen because they lacked seniority. Casto did not work during the 2006 shutdown because
he lacked seniority; however, he stated he would have worked if he had had enough
seniority. This was the first year that he had been denied work based on lack of seniority.
No employee who worked during the shutdown filed for unemployment benefits; however,
8
some of the claimants did not even sign up for work. Casto had never filed for
unemployment benefits during past holiday shutdowns, because over the years, he had been
given the opportunity to work based on seniority or had not signed up to work. Casto
understood the designated holidays were Christmas Eve, Christmas Day, New Year’s Eve,
and New Year’s Day, which could be observed on Friday or Monday if those days fell on a
Saturday or Sunday. Casto could not recall the plant shutting down during the week of
Thanksgiving since he had been employed at MPI,4 and he also could not recall the plant ever
shutting down for an entire week due to lack of work.
¶12. Subsequent to the hearing, the ALJ issued an opinion on May 11, 2007, reversing the
claims examiner’s decision, and holding that the claimants were prima facie unavailable for
work because they were on a designated yearly maintenance shutdown as referenced by the
Union Labor Agreement. The practical effect of the ALJ’s ruling was that MPI was entitled
to a non-charge. On July 23, 2007, the MDES Board of Review affirmed the ALJ’s decision.
On August 3, 2007, Alexander filed a Petition of Appeal in the Circuit Court of Alcorn
County.
PROCEEDINGS IN THE CIRCUIT COURT
¶13. After Alexander’s timely filing of a circuit court petition for review pursuant to
Mississippi Code Annotated Section 71-5-531 (Rev. 2000), both MPI and MDES filed
separate responsive pleadings, and on December 7, 2007, after a review of the administrative
4
Casto’s testimony on this point was contradicted by Weston, who had testified that
the plant had also closed due to lack of work during the week of Thanksgiving in 2003.
9
record and transcript, the Alcorn County Circuit Court, Judge Paul S. Funderburk presiding,
entered an order affirming the decision of the Board of Review. On December 26, 2007, the
claimants timely appealed to us.
¶14. There is but one issue for us to consider in today’s appeal.
WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN
FINDING THAT THE CLAIMANTS WERE NOT ENTITLED TO
UNEMPLOYMENT BENEFITS.
¶15. Our standard of review in today’s case is well-established:
The standard of review for appealing a decision of the MESC is governed by
Miss. Code Ann. Section 71-5-531 which provides: "in any judicial
proceedings under this section, the findings of the board of review as to the
facts, if supported by evidence and in the absence of fraud, shall be conclusive,
and the jurisdiction of said court shall be confined to questions of law." This
Court has previously stated: "where there is the required substantial evidence,
this Court has no authority to reverse the circuit court's affirmance of the
decision of the Board of Review." Richardson v. Mississippi Employment
Sec. Comm'n, 593 So. 2d 31, 34 (Miss. 1992) (citing Ray v. Bivens, 562 So.
2d 119, 121 (Miss. 1990)); Piggly Wiggly v. Mississippi Employment Sec.
Comm'n, 465 So. 2d 1062, 1065 (Miss. 1985); Wheeler v. Arriola, 408 So. 2d
1381, 1383 (Miss. 1982)). "The board's findings of fact are conclusive if
supported by substantial evidence and without fraud." Hoerner Boxes, Inc. v.
Mississippi Employment Sec. Comm'n, 693 So. 2d 1343, 1347 (Miss. 1997);
See also Richardson, 593 So. 2d at 34; Ray v. Bivens, 562 So. 2d 119, 121
(Miss. 1990); Melody Manor, Inc. v. McLeod, 511 So. 2d 1383, 1385 (Miss.
1987). Therefore, "this Court must not reweigh the facts of the case or insert
its judgment for that of the agency." Allen v. Mississippi Employment Sec.
Comm'n, 639 So. 2d 904, 906 (Miss. 1994) (citing Mississippi Pub. Serv.
Comm'n v. Merchants Truck Line, Inc., 598 So. 2d 778, 782 (Miss. 1992)).
Broome v. Miss. Employment Sec. Comm'n, 921 So. 2d 334, 337 (Miss. 2006).
¶16. First, the claimants argue that the ALJ, the Board of Review, and the circuit court
abused their discretion in finding that the plant was not shut down for lack of work during
10
the week of Thanksgiving and the two-week period which encompassed the Christmas and
New Year’s holidays. The claimants rely on a notice dated November 7, 2006, which stated
in pertinent part: “Business is slower than we expected, even for this time of year and we’re
struggling to load four Calendars. We have some new programs on the horizon and anticipate
being busy the first quarter of 2007. However, we need to do something until then to get us
there. Therefore, the best thing to do is to close the plant the week of Thanksgiving and
hopefully allow orders to catch up.” 5
¶17. However, the only issue before the ALJ, and therefore the Board of Review and the
circuit court, was whether the claimants were unavailable for work during the two-week
Christmas shutdown in 2006. In the MDES hearing notice dated April 11, 2007, notifying
the parties of the April 24, 2007, hearing before the ALJ, all concerned parties were put on
notice that the sole issue to be considered was whether the claimants were “prima facie
unavailable for work due to a holiday period or vacation for week(s) ending 12/23/06 [and]
12/30/06.” At the commencement of the hearing on April 24, 2007, Judge Gill stated, inter
alia, that the hearing was “being conducted in order to determine whether or not the
claimants involved were able and available for holiday or vacation pay for the weeks in
question” and that “[t]he weeks specifically involved for this particular hearing is week
5
The claimants assert that this week off during Thanksgiving provided them with the
needed one-week waiting period required pursuant to Mississippi Code Annotated Section
71-5-511(d) (Rev. 2000) to then be eligible to receive unemployment benefits for the entire
holiday period encompassing the 2006 Christmas and New Year’s holiday season, inasmuch
as the shutdown during that period, according to the claimants, was due to lack of work. This
claim will be discussed, infra.
11
ending December 23, 2006 and December 30, 3006.” Finally, in her opinion of May 11,
2007, Judge Gill stated that the sole issue to be considered was “whether or not the claimant
is prima facie unavailable for work due to a holiday period or vacation period for week(s)
ending December 23, 2006, and December 30, 2006.”
¶18. The claimants argue that because the Thanksgiving shutdown notice states that MPI
would close for lack of work and that orders would be slow for the remainder of the year, it
must be inferred that the plant’s Christmas shutdown was the longest in history because there
was a lack of work. However, the claimants presented no evidence of this claim. It is clear
that MPI had a scheduled shutdown each year, as referenced in the union agreement. It is
also clear that, while this shutdown was the longest, the shutdown was similar in time and
amount of time to the shutdowns in past years. Therefore, there was no abuse of discretion
on the part of the ALJ and the Board of Review in finding that the two-week Christmas
shutdown in 2006 was not a lack-of-work shutdown.
¶19. Next, the claimants argue that the ALJ, the Board of Review, and the circuit court
abused their discretion “by holding that the reason for the layoff was vacation in one part of
the Decision and/or for maintenance in another part of the Decision, when, in fact, the layoff
was caused by a lack of work.” As discussed supra, there was no abuse of discretion in
holding that the shutdown was not caused by a lack of work. The claimants further argue
that Mississippi Code Annotated Section 71-5-511(d) provides a waiting period of one week
before an employee can draw unemployment benefits, but after the one-week waiting period,
the employee is entitled to benefits for any full week that work is not available for him.
12
Thus, the claimants argue that the Thanksgiving shutdown for lack of work constituted the
first week of unemployment, and that they are entitled to benefits for the two-week shutdown
at Christmas. The ALJ, the Board of Review, and the circuit court found otherwise, relying
on Mississippi Code Annotated Section 71-5-511(k) (Rev. 2000), which states:
An individual shall be deemed prima facie unavailable for work, and therefore
ineligible to receive benefits, during any period which, with respect to his
employment status, is found by the department to be a holiday or vacation
period.
¶20. Although factually dissimilar and different in outcome, we find the Court of Appeals’
decision in Mississippi Employment Security Commission v. Funches, 782 So. 2d 760,
(Miss. Ct. App. 2001) beneficial in discussing today’s case. In Funches, the Court of
Appeals stated, inter alia:
In 1998, Funches and others similarly situated were employed as part-time
non-seniority employees with Delphi Packard Electric Company in Clinton,
Mississippi. An agreement between the local union and the employer provided
that Delphi would shut down its operations during Independence week with
the option of designating as plant vacation shutdown week the week before or
after the Independence week shutdown. The agreement provided that active
employees without seniority such as Funches would be on "lay-off" during the
shutdown.
....
As stated, Funches and the other appellees here are active employees without
seniority. During the shutdown, they applied for and were denied
unemployment benefits. The denial was based on the conclusion reached by
the Board of Review of the Mississippi Unemployment Commission that
Funches and the other appellees were not involuntarily unemployed and were
not available for work.
....
The central issue is whether there is substantial evidence to support the
decision of the Board of Review that Funches and others similarly situated are
not entitled to benefits because of the dictates of Mississippi Code Annotated
Section 71-5-511(k) (Rev. 2000) which provides that "[a]n individual shall be
13
deemed prima facie unavailable for work, and therefore ineligible to receive
benefits, during any period which, with respect to his employment status, is
found by the commission to be a holiday or vacation period."
....
The critical focus must be on whether during the vacation shutdown period,
Funches's employment and the employer/employee relationship had already
been terminated or whether it had been just temporarily suspended to be
resumed after the shutdown. For us, the answer is clear. According to the
collective bargaining agreement, Funches was laid off. Based on the already
quoted testimony of company employee, Johnson, Funches's employment and
the employer/employee relationship had ended. It came to an end prior to the
shutdown, not after, because during the shutdown, Funches was removed from
Delphi Packard Electric's active employment roll. Nothing in the collective
bargaining agreement required the removal of Funches from Delphi Packard
Electric's employment roll. While Funches was unavailable for work during
what was termed a "vacation shutdown period," it cannot be argued
legitimately, on these facts, that Funches was on vacation. For the reasons set
forth, we affirm the decision of the circuit judge reversing the decision of the
Board of Review denying benefits.
Id. at 761-62, 764-65 ¶¶4-7, 18. However, our case today is distinguishable because in
Funches, the union agreement specifically provided that the employees would be laid off
during the shutdown; but here, the union agreement on pages 22-23 clearly distinguishes
between vacation shutdowns and layoffs. Additionally, no employees were removed from
the employment rolls. Quite the contrary, all employees were expected back at work on
January 3, 2007, and the administrative record reveals that all of the employees have
continued their employment with MPI.
¶21. The Funches court relied on three cases from this Court: Mississippi Employment
Security Commission v. Jackson, 237 Miss. 897, 116 So. 2d 830 (1960); Smith v.
Mississippi Employment Security Commission, 344 So. 2d 137 (Miss. 1977); and Buse v.
14
Employment Security Commission, 377 So. 2d 600 (Miss. 1979). In Funches, the Court of
Appeals stated:
In Jackson, the court framed the issue before it this way: "The question for our
decision involves the right to unemployment compensation for a period when
the plant was shut down for vacations in accordance with the union contract."
Jackson, 237 Miss. at 899, 116 So. 2d at 831.
....
These employees filed claims for unemployment benefits with the Mississippi
State Employment Security Commission for the three week period beginning
December 13, 1957. The Commission allowed the claims for the first and third
week but disallowed the claims for the second week of the three week period.
The basis of the denial of the claims for benefits for Christmas week was that
the employees were not involuntarily unemployed and were not available for
work within the meaning of the statute. Id. at 898-99, 116 So. 2d at 831. The
circuit court reversed the Commission, and on appeal, the Mississippi Supreme
Court reversed the circuit court and reinstated the decision of the Commission,
with these instructive words:
The shutdown for Christmas week was in accordance with the
union contract and the union represented all of the appellees. It
cannot be said that appellees were unemployed within the
meaning and purpose of the statute. They were not laid off; their
employment had not been terminated, and the relationship of
employer and employee continued during the week the plant was
closed for the purposes stated.
Jackson, 237 Miss. at 901, 116 So. 2d at 832. (Emphasis added).
Funches, 782 So. 2d at 762-63, ¶¶9-10. This Court opined in Jackson that because the
union agreed to the shutdown and the employees had not been terminated, the claimants were
not entitled to benefits. Such is the situation in our case today. The Court of Appeals also
stated:
In Smith, Gloria J. Smith, due to pregnancy, took a leave of absence from her
position as an accounting clerk at Desoto, Inc. on August 30, 19[7]4. She was
supposed to return from leave on December 3, 19[7]4. It was company policy
15
to grant a three-month leave of absence for pregnancy without terminating the
employment. However, prior to December 3, Mrs. Smith was informed that
because of declining business conditions her position had been temporarily
eliminated, and she was being "involuntarily" laid off. Smith, 344 So. 2d at
139. The employer, the Board of Review and the circuit court concluded that
Smith had left work voluntarily and denied her benefits. Id. at 138.
On appeal, the Mississippi Supreme Court concluded that Smith was entitled
to benefits beginning December 3, 19[7]4, the day she was due to return to
work but could not because she had been laid off. Id. at 140. While it is clear
in Smith that Mrs. Smith voluntarily took a leave of absence, it is likewise
equally clear that her employment continued during her leave of absence. She
simply temporarily suspended it pursuant to an agreement with her employer.
Id. at 139. She did not seek benefits for the period of time covered by her
voluntary leave of absence.
....
Mrs. Smith did not seek benefits for the period of time covered by her
voluntary leave of absence. Further, during the period of the leave of absence,
the employer/employee relationship continued to exist during the period of the
leave of absence.
Funches, 782 So. 2d at 764, ¶¶14-16. Unlike Mrs. Smith, the claimants in the case sub
judice are not entitled to benefits. Mrs. Smith sought benefits for only the time after which
she was terminated from her employment and not during her voluntary leave of absence;
however, in today’s case, the claimants have not been terminated and seek benefits for a
period in which the union agreement acknowledged the shutdown of the plant. Finally, the
Court of Appeals stated:
Buse involved a situation where Fred Buse was laid off on October 30, 1977,
from his employment with Pennsylvania Tire & Rubber Company. He began
receiving unemployment compensation one week after his last date of
employment. On December 19, 1977, pursuant to a collective bargaining
agreement, Pennsylvania paid Buse $525.23 for two weeks accumulated
vacation pay for the past year. The Mississippi Employment Security
Commission thereafter denied Buse unemployment compensation for the two-
week period following such vacation payment. Buse, 377 So. 2d at 601. The
16
Commission based its denial of benefits on the premise that the vacation
payment constituted "wages" and thereby eliminated unemployment benefits
for the period. Id. Therefore, the issue in Buse was whether Buse had earned
wages in December or whether the wages were earned prior to discharge. The
Mississippi Supreme Court agreed with Buse that the wages had been earned
prior to discharge. Id. We see little support in Buse in aid of the issues before
us.
Id. at 764, ¶17. This Court further emphasized in Buse that the express terms of the union
agreement controlled and that the terms of the union agreement entitled Buse to his pay.
Buse, 377 So. 2d at 602.
¶22. The claimants in today’s case agreed to the shutdown, specifically referred to as a
vacation shutdown in the union agreement. The employees were paid for the company
holidays specified, but were on unpaid vacation, in accordance with Mississippi Code
Annotated Section 71-5-511(k) (Rev. 2000), for the remaining days of the shutdown. The
employment relationship continued during the shutdown, and according to the record before
us, all affected claimants remain employed at MPI to this day.
¶23. We thus find this issue to be without merit.
CONCLUSION
¶24. For the reasons stated, we affirm the Alcorn County Circuit Court’s judgment
affirming the Mississippi Department of Employment Security’s denial of unemployment
benefits to the ninety-eight named employees of Mississippi Polymers.
¶25. AFFIRMED.
SMITH, C.J., WALLER, P.J., DICKINSON AND RANDOLPH, JJ., CONCUR.
DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
EASLEY, J.; GRAVES, J., JOINS IN PART. LAMAR, J., NOT PARTICIPATING.
17
DIAZ, PRESIDING JUSTICE, DISSENTING:
“If it was the law they was workin’ with, why we could take it. But it ain’t the
law. They’re a-workin’ away at our spirits . . . they’re workin’ away at our
decency.”
John Steinbeck, The Grapes of Wrath 256-57 (Penguin Books 2002) (1939).
¶26. Today’s decision is not what Ronnie Alexander bargained for. Mississippi Polymers’
imposition of a 16-day unpaid “holiday” circumvents the collective bargaining agreement,
and today’s majority ignores the ambiguity of whether Alexander and his co-workers
intended to agree to such an involuntary dismissal. The law of this state commands that the
Court recognize this ambiguity in the collective bargaining agreement and remand the case
for a determination of how the parties intended to define a “holiday.” The majority’s decision
to evade that duty is one from which I must dissent.
¶27. It is undisputed that, so long as the Board of Review’s factual findings are supported
by evidence and absent of fraud, the scope of our review may encompass only questions of
law. Maj. at ¶ 15 (citing Broome v. Miss. Employment. Sec. Comm’n, 921 So. 2d 334, 337
(Miss. 2006)). But our precedent makes equally clear that the existence, or lack thereof, of
a contractual ambiguity presents such a question, Tupelo Redevelopment Agency v.
Abernathy, 913 So. 2d 278, 283 (Miss. 2005), unlike the resolution of an ambiguity, which
is a question for the finder of fact. Harris v. Harris, 988 So. 2d 376, 378 (Miss. 2008). The
term “holiday,” as it is defined in the collective bargaining agreement, is an unavoidable
ambiguity and lies as the very heart of this case.
18
¶28. Although a contract is normally interpreted according to its plain meaning, regardless
of the parties’ intent, courts will consider the intent of the contractors when their agreement
contains an ambiguity – that is, when a term is reasonably susceptible to more than one
interpretation. Dennis v. Searle, 457 So. 2d 941, 945 (Miss. 1984) (citing Baylot v. Habeeb,
245 Miss. 439, 446, 147 So. 2d 490 (1962)). Our general reluctance to overturn agency
decisions notwithstanding, this is an inquiry that is made de novo, with no deference given
to any previous determinations. See Abernathy, 913 So. 2d at 283.
¶29. Mississippi law mandates that unemployment benefits may not be afforded to any
worker for any period of time that is “a holiday or vacation period.” Miss. Code Ann. § 71-5-
511(k) (Rev. 2000). The agreement between Mississippi Polymers and its workers, though,
is unavoidably ambiguous as to whether the company’s annual, end-of-year shutdown is a
“holiday” under the collective bargaining agreement. Undoubtedly, Mississippi Polymers has
long made practice of sending its workers home near the end of a year for, among other
things, the purpose of conducting maintenance on its equipment. And, just as undoubtedly,
the conduct of contracting parties is available as evidence of intent. Hults v. Tillman, 480
So. 2d 1134, 1143 (Miss. 1985). But the collective bargaining agreement, by its very terms,
lists 12 specific “holidays” and limits each of them to a single day. If this is not indisputable
proof that Alexander and his co-workers did not agree to the end-of-year shutdown, then it
is at least proof of an inescapable and critical uncertainty in the collective bargaining
agreement. The majority’s decision to ignore that ambiguity is a mistake – one for which
Alexander and his co-workers are left to pay.
19
¶30. This Court walks a fine line in its reviews of labor decisions. Our reviews in matters
such as this must be limited, but they must not be so passive as to deprive the laborers of this
state of the day in court to which they are entitled. The relationship between worker and
employer is one that is inherently unfair. And for all the important roles in our society played
by corporations, they are economic behemoths of immense power, for which workers are all
too often no match. See Am. Steel Foundries v. Tri-City Trades Council, 257 U.S. 184
(1921).
¶31. Our labor laws, by the wisdom of our legislators and the grace of God, have developed
to shield workers from that oppressive power. But when a court of last resort such as this
abdicates its duty to enforce labor laws fairly, workers like Ronnie Alexander are left naked
to struggle alone against a jailer holding the keys to economic oppression. Neither that fight,
nor today’s decision, is a fair one. Therefore, I dissent.
EASLEY, J., JOINS THIS OPINION. GRAVES, J., JOINS THIS OPINION IN
PART.
20
|
648 F.3d 115 (2011)
UNITED STATES of America, Appellee,
v.
Niels H. LAUERSEN, Defendant-Appellant.
Docket No. 09-0255-cr.
United States Court of Appeals, Second Circuit.
Argued: May 25, 2011.
Decided: June 7, 2011.
Michael M. Rosensaft, Justin S. Weddle (on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Gerald L. Shargel, Law Offices of Gerald L. Shargel, New York, NY, for Appellant.
Before: McLAUGHLIN, POOLER, and SACK, Circuit Judges.
PER CURIAM:
Appellant Niels H. Lauersen appeals from a December 31, 2008 order of the District Court for the Southern District of New York (Pauley, J.), denying Lauersen's request that the district court waive or reduce delinquency and default penalties imposed pursuant to 18 U.S.C. § 3612(g). Lauersen was responsible for paying restitution and a fine arising from his criminal conviction, yet he was delinquent (more than 30 days late) and in default (more than 90 days late) with regard to significant amounts of these obligations. The Attorney General notified Lauersen of his delinquency and default, and pursuant to Section 3612(g) the district court imposed penalties of 10% of the principal amounts that were delinquent and an additional 15% of the principal amounts in default. The district court rejected Lauersen's motion to waive such penalties, stating that only the Attorney General, not the district court, has authority to waive all or part of delinquency and default penalties under Section 3612(g). We agree and therefore affirm the order of the district court.
As an initial matter, we decline to address the arguments that Lauersen raises for the first time on appeal, including counsel's argument that the Government provided insufficient notice of Lauersen's delinquency and default. Lauersen did not present these arguments to the district court in connection with the order from which Lauersen appeals and we find no reason to depart from the general rule that we will not consider issues raised for the first time on appeal. See Universal *116 Church v. Geltzer, 463 F.3d 218, 228 (2d Cir.2006). However, Lauersen has adequately challenged the district court's holding that it lacked authority to waive all or part of Lauersen's delinquency and default penalties under 18 U.S.C. § 3612.
This Court reviews a district court's conclusions of law de novo. See, e.g., United States v. Turk, 626 F.3d 743, 747 (2d Cir. 2010); Ehrenfeld v. Mahfouz, 489 F.3d 542, 547 (2d Cir.2007). Here, the district court denied Lauersen's motion for waiver of delinquency and default penalties because the Government did not waive the penalties and the district court concluded that "a waiver or reduction of penalties under § 3612(h) requires the Government's petition." United States v. Lauersen, No. 98 Cr. 1134(WHP), 2008 WL 5416377, at *2 (S.D.N.Y. Dec. 31, 2008).
Section 3612 concerns the collection of unpaid criminal fines or restitutions. As relevant here, the Attorney General is "responsible for collection of an unpaid fine or restitution" that the district court properly certifies. 18 U.S.C. § 3612(c). If a defendant is more than 30 days late paying a fine or restitution, he is delinquent. Id. § 3572(h). If a defendant is then delinquent for more than 90 days, he is in default. Id. § 3572(i). Section 3612 mandates substantial financial penalties for delinquency or default of a fine or restitution: "the defendant shall pay" 10% of the principal amount that is delinquent and an additional 15% of the principal amount that is in default. Id. § 3612(g); United States v. Pescatore, 637 F.3d 128, 144 (2d Cir.2011).
In addition, Section 3612 requires that defendants "shall pay interest," according to a statutory formula, on fines or restitutions not paid in full within fifteen days of the judgment. 18 U.S.C. § 3612(f)(1)-(2). Congress specified that a district court may waive or modify the interest due if it "determines that the defendant does not have the ability to pay interest." Id. § 3612(f)(3). Moreover, Congress empowered the Attorney General to waive all or part of the interest or penalty if it determined that "reasonable efforts to collect the interest or penalty are not likely to be effective." Id. § 3612(h).
These requirements regarding payment of interest and delinquency and default penalties date back to the Criminal Fine Improvements Act of 1987, Pub.L. No. 100-185, § 11, 101 Stat. 1279, 1283-85 (1987). Congress added both the interest and penalty requirements at the same time, in the same statute. As is true today, Congress provided that both district courts and the Attorney General may waive all or part of the specified interest on fines. However, Congress provided that only the Attorney General may waive all or part of specified delinquency and default penalties. Congress could have given district courts similar authority for delinquency and default penalties, but it did not.
Generally, we presume that Congress expresses its intent through the language it chooses. See, e.g., Holloway v. United States, 526 U.S. 1, 6, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999). Congress granted district courts the power to waive or modify interest obligations, while granting only the Attorney General the authority to waive all or part of delinquency and default penaltiesand it did so within the same Act, codified in the same section of the United States Code. Therefore, we cannot lightly presume that Congress meant to implicitly grant district courts authority equivalent to the Attorney General's for delinquency and default penalties. Indeed, Congress explicitly detailed the circumstances under which delinquency and default penalties could be waived. Section 3612 provides that "[t]he Attorney *117 General may waive all or part of any interest or penalty under this section ... if, as determined by the Attorney General, reasonable efforts to collect the interest or penalty are not likely to be effective." Id. § 3612(h) (emphases added). Unlike the interest modification provision in Section 3612(f), Congress specified that the Attorney General, not the district court, may waive all or part of the penalty. Id. § 3612(h). Congress clearly expressed its intent to withhold such discretion from district courts. Cf. Elkins v. Moreno, 435 U.S. 647, 665-66, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978) (finding absence of restriction in one part of statute was "pregnant" when contrasted with other parts of statute, which included that restriction).
Section 3612(b)(1), which specifies the information that district courts must include in "[a] judgment or order imposing, modifying, or remitting a fine or restitution order of more than $100," is not to the contrary. 18 U.S.C. § 3612(b)(1) (emphases added). Section 3612 does not prohibit district courts from modifying or remitting a fine or restitution order. Instead, Section 3612 sets penalties for delinquent or defaulted payments of fines or restitution orders and specifies who may waive such penalties in full or in part. Section 3612 itself does not authorize district courts to waive either fines and restitutions or delinquency and default penalties. The use of the words "modifying" and "remitting" in Section 3612(b)(1) merely reflects that some types of fines and restitution orders may be modified or remitted, and for those, as for the original imposition thereof, the district court must include certain information in the judgment. Id.; accord United States v. Roper, 462 F.3d 336, 340 (4th Cir.2006). This language does not suggest that delinquency and default penalties themselves may be modified by district courts. Indeed, Section 3612(b) explicitly mentions modifying or remitting only fines and restitution ordersnot delinquency and default penalties.
Nor does 18 U.S.C. § 3664(k) provide a district court with authority to waive all or part of delinquency or default penalties. Section 3664(k) allows a district court to "adjust the payment schedule" for "[a] restitution order," not to waive all or part of delinquency and default penalties that have been assessed under Section 3612. Lauersen does not argue that the district court erred in failing to adjust the payment schedule for his order of restitution. Instead, Lauersen argues that the district court erred by failing to "waive or reduce the penalties that have been assessed" on Lauersen's delinquent and defaulted fine and restitution. We reject this argument. Section 3664(k) does not authorize the district court to waive all or part of delinquency or default penalties.
Although we find the statutory language of Section 3612 clear, we note that the legislative history also indicates that Congress did not intend to authorize district courts to waive delinquency and default penalties under Section 3612 absent a waiver by the Attorney General. In the House Report for the Criminal Fine Improvements Act of 1987, the Judiciary Committee stated that under Section 3612(f), "[i]mposition of interest [on fines]... is at the court's discretion." H. Rep. 100-390, at 11, 1987 U.S.C.C.A.N. 2137, 2147 (1987). In contrast, the House Report notes that Section 3612(g) "imposes an automatic 10 percent penalty for any amount of the principal portion that has become delinquent and an additional 15 percent penalty for any amount of the principal portion of a fine that is in default." Id. (emphasis added). The legislative history does not suggest that district courts may decide that, given the circumstances, a defendant should pay, say, 7.5% of the principal amount that is delinquent or, say, 11% of the principal amount that is *118 in default. Instead, the respective 10% and 15% penalties are "automatic," requiring no finding by the district court about the defendant's ability to pay the penalty. Although district courts lack the power to waive all or part of a delinquency or default penalty, the House Report noted that Section 3612(h) "authorizes the Attorney General to waive, without court order, all or part of interest and penalties owed." H. Rep. 100-390, at 11 (1987) (emphasis added). Thus, both the text of Section 3612 and its legislative history indicate that, rather than involving district courts in the decision to waive delinquency and default penalties, Congress purposefully left the decision to the Attorney General. Nor has this changed in the years after Congress passed the Criminal Fine Improvements Act of 1987. As relevant to this appeal, Section 3612 has changed little since the Criminal Fine Improvements Act of 1987, aside from an expansion in 1996 to cover unpaid restitution in addition to unpaid fines. See Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 207(c)(2), 110 Stat. 1214, 1237-38 (1996).
We conclude that the district court correctly interpreted Section 3612(h) as authorizing only the Attorney General, in its discretion, to waive all or part of delinquency and default penalties properly assessed pursuant to Section 3612(g). See 18 U.S.C. § 3612(h). Therefore, the district court properly denied Lauersen's motion for waiver of his delinquency and default penalties.
We have considered all of Lauersen's remaining arguments and find them to be without merit. For the foregoing reasons, we AFFIRM the order of the district court.
|
FILED IN
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 95-4022
___________
Fru-Con Construction *
Corporation, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Thomas J. Wiens; John *
Silvia, Jr., * [UNPUBLISHED]
*
Appellants. *
___________
Submitted: February 20, 1997
Filed: March 10, 1997
___________
Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Fru-Con Construction Corporation filed a complaint alleging
that Thomas Wiens and John Silvia as guarantors had defaulted on a
promissory note. To settle that claim, Wiens and Silvia executed
consent judgments, and Fru-Con agreed it would not file the
judgments if other settlement payments were timely made. After
defaults in those payments, the district court entered final
judgments in accordance with the consent judgments. Wiens and
Silvia now appeal a subsequent order denying their Fed. R. Civ. P.
60(b) motion to set aside the judgments. We affirm.
The district court has discretion to grant extraordinary
relief under Rule 60(b) upon a showing of "exceptional
circumstances." See Mitchell v. Shalala, 48 F.3d 1039, 1041 (8th
Cir. 1995). We conclude that the court did not abuse its
-2-
discretion in denying defendants' motion without an evidentiary
hearing, because Wiens and Silvia presented no evidence that
compliance with the earlier settlement agreements made entry of the
consent judgments improper, other than their conclusory assertions
that Fru-Con was paid in full. See Printed Media Servs., Inc. v.
Solna Web, Inc., 11 F.3d 838, 842 (8th Cir. 1993) (standard of
review). We reject their challenge to the underlying final
judgments because a Rule 60(b) motion may not substitute for direct
appeal. See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060,
1062-63 (8th Cir. 1986).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-
|
158 F.3d 261
Prod.Liab.Rep. (CCH) P 15,390John BARTLEY, Mike Rucker, Chris Luker, Walter Henry, andTim Humber, Plaintiffs-Appellees-Cross-Appellants,Planet Insurance Company, Intervenor Plaintiff-Appellee,v.EUCLID, INC., et al., Defendants,Euclid, Inc., Defendant-Intervenor Defendant-Appellant-Cross-Appellee.
No. 97-40365.
United States Court of Appeals,Fifth Circuit.
Oct. 20, 1998.
Andy Wade Tindel, Tyler, TX, James Mark Mann, Wellborn, Houston, Adkison, Mann, Sadler & Hill, Henderson, TX, Don Wheeler, Wheeler & Russell, Center, TX, for Plaintiffs-Appellees-Cross-Appellants.
Kevin J. Croy, James Preston Dobbs, III, Burford & Ryburn, Dallas, TX, for Planet Ins. Co.
H. Douglas Wabner, Tim Marlin Wheat, Ben Taylor, Fulbright & Jaworski, Dallas, TX, William Joseph Boyce, Fulbright & Jaworski, Houston, TX, for Euclid, Inc.
Clifton T. Hutchinson, Bert Black, Hughes & Luce, Dallas, TX, Hugh F. Young, Jr., Product Liability Advisory Council, Reston, VA, for Product Liability Advisory Council, Inc., Amicus Curiae.
Appeals from the United States District Court for the Eastern District of Texas.
Before REAVLEY, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
1
The appeal in this diversity case challenges a jury verdict and resulting judgment awarding four plaintiffs a total of $2.8 million, exclusive of prejudgment and post-judgment interest, on products liability and negligence theories against a manufacturer of coal hauling vehicles. The plaintiffs cross-appeal to challenge the jury finding that their own negligence contributed to their injuries. We affirm.
I. PROCEEDINGS
2
Between May and October 1994, plaintiffs John Bartley1, Mike Rucker, Chris Luker, Walter Henry and Tim Humber sued Euclid and others asserting personal injury/products liability claims under Texas law. The suits were filed in federal court invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332. In December 1995, the district court sua sponte consolidated these actions. Euclid's motions for summary judgment, challenging the admission of plaintiffs' expert testimony on the basis of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), were denied, and the case was tried to a jury. The district court entered judgment on the jury's verdict which found, inter alia, that Euclid's coal haulers were defective; that both Euclid and the plaintiffs were negligent; and that the coal haulers caused injuries and damages to the plaintiffs.
II. FACTS
3
Euclid designs, builds, and markets heavy equipment including 120-ton vehicles used for hauling coal at open pit coal mines. Initially, Euclid's coal haulers were built with the engine mounted in front of the operator's cab, which design was termed "long-nosed."2 In the mid-1970's, a new design, termed "short-nosed" because its engine was moved back on the chassis so that it rested partially under the operator's cab, was introduced.3 The new design differed from the earlier model in other ways, including using a shorter wheel base, and a trailing arm suspension system with rubber struts instead of steel springs. The short-nosed coal haulers, which are the subject of this litigation, have better visibility from the driver's seat and better maneuverability, but a considerably rougher ride.
4
Plaintiffs, males ranging in age from 32 to 46 years, were all employees of Texas Utilities Mining Company ("TUMCO") and operated Euclid short-nosed coal haulers in the course and scope of their employment. They brought suit against Euclid claiming that they had sustained back injuries as a consequence of long term repetitious trauma and severe vibrations experienced while operating Euclid's short-nosed coal haulers.III. ADMISSIBILITY OF EXPERT WITNESS TESTIMONY
5
a. Standard of review
6
Euclid contends that the district court abused its discretion and violated its gate-keeping responsibilities under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) by admitting the plaintiffs' expert testimony. We review district court rulings on the admission of expert testimony for abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S. 136, ----, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997); see also Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir.1998)(en banc).
7
b. District court ruling
8
Plaintiffs' experts fall into two categories. Dr. Charles Aprill, Dr. Richard Bunch and Dr. Kelvin Samaratunga had formal training in the medical and physical therapy fields and were called to testify concerning causation. Arthur Chaseling and Geoff McDonald have formal training in the field of engineering and were called to testify regarding alleged design defects and potential alternative designs. The district court specifically found that both groups possessed sufficient qualifications to be considered experts, that their proffered evidence was reliable and relevant and that the probative value of the evidence was not "substantially outweighed by any type of prejudice."
9
The district court first considered whether the experts satisfied the requirements set out by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).4
The Federal Rules of Evidence provide:
Rule 702. Testimony by Experts
10
If scientific, technical, or other specialized knowledge will assist the trier of fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
11
The district court began its analysis by acknowledging that, under Texas law, plaintiffs' medical causation evidence, as well as the engineering evidence, are subject to the standards set out by the Supreme Court in Daubert.
12
The district court listed the non-exclusive Daubert factors which it applied: (1) whether a theory or technique can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether a potential rate of error has been established; and (4) whether the theory is "generally accepted" within the scientific community. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. The district court then cited United States v. Downing, 753 F.2d 1224 (3rd Cir.1985) in support of three additional factors that the district court found instructive to a reliability determination:(1) the existence of a body of literature dealing with a particular topic or technique; (2) the qualifications and professional stature of the witness in question; and (3) the relationship of the current theory to other methods of analysis.
13
c. Causation experts
14
Euclid specifically challenges the district court finding that Plaintiffs' causation experts offered reliable evidence.
15
Dr. Aprill, a medical doctor specializing in diagnostic radiology, evaluated Plaintiffs' spinal problems and researched the cause of those problems. Aprill's research involved comparing the Magnetic Imaging Resonance ("MRI") scans of 90 individuals who drove the coal haulers that are the subject of this case with the MRI scans of 80 back pain patients, age and sex matched to the hauler drivers. Aprill employed mainstream scientific research techniques to preclude bias in his conclusions. These included Aprill reading MRIs without knowing whether the scans were taken from hauler drivers or from the control group, as well as intraobserver reliability checks by which a colleague selected random MRIs for double readings without Aprill's knowledge. He also testified concerning the results of another study of endplate fractures conducted in Minneapolis, finding that the MRIs of 38% of asymptomatic Minneapolis subjects revealed broken endplates compared to 41% in his study.
16
Aprill concluded that the MRIs of the hauler driver group demonstrated multiple endplate fractures at multiple levels in the dorsal and lumbar spines and that accelerated disc degeneration occurred more often and at more levels in the hauler driver group than in the comparable group of people with back pain. He termed this finding statistically significant. The multiple endplate fractures demonstrated by the coal hauler population suggested to Aprill that those individuals were subject to repetitive vertical compression resulting in fractured endplates. Aprill's opinions were supported by an article appearing in 1992 in Clinical Biomechanics, stating that exposure to whole body vibrations causes structural damage to the endplate and subchondral bone. Aprill stated that he found this "fingerprint" condition throughout the hauler driver population. Although endplate abnormalities are fairly common, the drivers had not only more end plate fractures than the control population, but also an uncommon distribution of these fractures. Specifically, Aprill testified that in mature human populations most injuries appear in the lumbar (lower back) region, with cervical (neck) injuries next and dorsal spine injuries a distant third. The number of dorsal injuries Aprill found in the hauler driver population was very unusual. Further, the control group included individuals who had exposure to other risk factors identified by Euclid as possibly causing Plaintiffs' back injuries, including being over-weight, smoking, and truck driving. However, the significant number and characteristic distribution of injuries pointed to hauler driving as the single risk factor resulting in the "fingerprint" injuries which showed up in Aprill's study.
17
Dr. Samaratunga, the plaintiffs' treating neurosurgeon, relied partially on Aprill's MRI study for his conclusion that the endplate fractures were caused by whole body vibrations. Dr. Bunch, a physical therapist and ergonomics expert, testified that he had performed an ergonomic assessment of the coal haulers and concluded that the coal haulers contributed to the plaintiffs' injuries.
18
The district court, after reviewing the curriculum vitae of Dr. Aprill, Dr. Samaratunga and Dr. Bunch, found that each of these witnesses met the requirements of Rule 702 for designation as expert witnesses in this matter. In addition to the doctors' credentials, the court noted that there is a body of literature dealing with repetitive trauma back injuries, the doctors' theories can be tested, and that the methodology that the doctors used derived from other accepted methodologies. Based on these facts, the district court determined that the testimony was reliable under the standards set forth in Daubert.
19
Euclid attacks the district court's finding that these causation experts provided reliable testimony. First, Euclid contends that the "mere existence" of a body of literature on a given subject does not speak to the question of reliability. Second, they point out that the qualifications and professional stature of a witness, standing alone, do not evidence reliability. Third, they complain that the district court's conclusion that the experts' theories are "derived from methodology which relates to other accepted methodologies" is not helpful in determining reliability. Finally, they list those Daubert factors which do not point to reliability in this case: the potential rate of error in the causation witnesses' work was not established, the "general acceptance" of their conclusions was not established, and Dr. Samaratunga was allowed to testify concerning causation, when his area of expertise was established as treatment of back pain, not etiology.
20
Given the broad discretion vested in trial courts to "keep the gate" for the purpose of admitting or excluding opinion testimony, we cannot say that the district court abused its discretion in this case. See Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir.1998) (en banc). Euclid asserts that each factor, standing alone, may not have been enough to support the admission of opinion testimony. However, the district court considered the Daubert factors in the aggregate, and determined that, on balance, the experts' opinions were sufficiently reliable to merit admission into evidence and testing in the fire of cross examination and contrary evidence. We find that the district court did not abuse its broad discretion in that exercise. See General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997); see also Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir.1998)(en banc).
21
d. Liability experts
22
Although Euclid generally complains of the admission of testimony by liability experts McDonald and Chaseling, the only basis for the challenge advanced on appeal concerns the manner by which Chaseling measured the vibration levels in the coal haulers.
23
Euclid contends on appeal, as it did at trial, that it was inappropriate for Chaseling to measure the vibrations in the coal haulers by attaching an accelerometer to the metal frame below the seat. Chasling responded to that contention, testifying that, pursuant to International Standards Organization ("ISO") standards, it is permissible to measure the vibrations from the frame rather than from the seat as long as the transmission characteristics of the seat cushion are taken into account when calculating the actual vibration. Chasling testified further that he believed that measuring the vibration from the frame gave better comparable results from truck to truck because the condition of the seating material varies widely.
24
Euclid also complains that Chaseling turned on the accelerometer in 16-second bursts only when told to do so by people who were suing Euclid, gathering less than seven minutes of vibration data over a fifteen hour span of time, which resulted in vibration data that was unreliable. Chaseling explained during his testimony that he was attempting to record vibration measurements when the hauler was in a loping mode. For this he relied on the input of the hauler drivers to advise him when they felt the machine phase into that mode.
25
The district court noted that, "[a]s a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.1987). The question for the district court was whether the "analytical gap" between the causation opinion offered by the expert and the scientific knowledge and available data advanced to support that opinion is too wide. Moore v. Ashland Chemical Inc., 151 F.3d 269 (5th Cir.1998). Here the district court determined that it was not.
26
[T]hese witnesses' theories can be tested, their qualifications are adequate, literature exists dealing with common design principals and methodologies for testing such designs, and the methods from which these opinion were reached are related to other methodologies and theories in the area of engineering safety and design. In the Court's opinion, these factors render this evidence reliable under Daubert.
27
Memorandum Opinion and Order, January 2, 1997, at 6. We conclude that the district court did not abuse its discretion in finding that the expert testimony offered by Chaseling and McDonald was reliable and relevant and therefore admissible, and that it was within the province of the jury to weigh the credibility of that evidence in light of Euclid's criticism that Chasling's methods for testing vibration levels yielded inaccurate results.
IV. SUFFICIENCY OF THE EVIDENCE
28
Euclid moved for judgment as a matter of law based on the insufficiency of the evidence to support the plaintiffs' products liability and negligence claims. The district court denied the motion. We review that ruling de novo, applying the same standards employed by the district court. See Gutierrez v. Excel Corp., 106 F.3d 683, 686 (5th Cir.1997). "All evidence with all reasonable inferences must be considered in the light most favorable to the nonmoving party." Id. Judgment as a matter of law should have been granted if there was "no legally sufficient evidentiary basis for a reasonable jury to find for" the plaintiffs on issues they bore the burden of proving. FED.R.CIV.P. 50(a).
29
The jury found that the preponderance of the evidence5 established that there were design and marketing defects in the coal haulers at the time they left the possession of Euclid that were a producing cause of the plaintiffs' injuries. The jury also found that the preponderance of the evidence established that negligence by both Euclid and the plaintiffs proximately caused the injuries in question. On appeal, Euclid challenges the sufficiency of the evidence as to design defects, marketing defects, Euclid's negligence and causation.
30
a. Strict liability design defect
31
In determining whether a product is defectively designed, "the jury must conclude that the product is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use." American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 432 (Tex.1997). Liability for a design defect may attach even if the defect is obvious or apparent. Turner v. General Motors Corp., 584 S.W.2d 844, 850 (Tex.1979). Whether a product has a design defect is evaluated in the light of economic and scientific feasibility of safer alternatives. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 746 (Tex.1980).
32
We find no merit in Euclid's argument that the evidence is not sufficient to support the jury's verdict because plaintiffs' experts did not use the words "unreasonably dangerous." Although an expert may testify to an ultimate issue, such testimony is not required to support the jury's verdict. See FED.R.EVID. 704(a). Rather, we must look to all the evidence, drawing all reasonable inferences in favor of the plaintiffs in evaluating the sufficiency of the evidence. See Crosthwait Equipment Co., Inc. v. John Deere Co., 992 F.2d 525, 528 (5th Cir.1993).
33
Chasling testified that the vibration of the hauler violated the health and safety thresholds of International Safety Organization ("ISO") Standard 2631.6 Under that standard, the hauler drivers should not be exposed to vibrations in excess of established levels for more than 1.6 hours in a 24 hour period. The plaintiffs were routinely exposed to vibrations in excess of ISO standards for a majority of their 8 to 12 hour shifts. It was not simply the intensity of the vibrations but the vector of forces caused by a combination of vertical and longitudinal vibrations that produced injury. Evidence supports a determination that the "geometry" of the short-nose haulers, i.e. the shorter wheel base and placement of the engine, caused the vibrations. Those vibrations were exacerbated by the substitution of rubber struts for the steel springs which had been used in the long-nose haulers. The evidence identified Euclid's own long-nose hauler as a safe, feasible alternative from both an engineering and economic perspective. Euclid focuses on evidence that the short-nose design was a response to user demand for better maneuverability and visibility, arguing that such demand made the older design obsolete and therefore non-feasible. While Euclid's line of reasoning was certainly relevant, this court is not empowered to sit as a super jury, substituting its view for the jury's assessment of the weight and credibility to assign to the conflicting feasibility evidence. See Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir.1997).
34
Based on the foregoing, we find that the evidence before the jury was sufficient to support its conclusion that the short-nosed coal haulers are unreasonably dangerous as designed.
35
b. Negligence: marketing defect, failure to warn.
36
Euclid challenges on appeal the jury's determination that there was a defect in the marketing of the coal haulers at the time these products left the possession of Euclid.
37
Under Texas law, negligence consists of four essential elements: (1) a legal duty owed to the Plaintiff by the Defendant; (2) a breach of that duty; (3) an actual injury to the Plaintiff; and (4) a showing that the breach was a proximate cause of the injury. See Williams v. Southern Pacific Transp. Co., 804 S.W.2d 132, 138 (Tex.App.--Houston [1st Dist.] 1990, writ denied). While strict liability focuses on the condition of the product, negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in designing and producing its product. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 437 (Tex.1997).
38
A product may be unreasonably dangerous because of a defect in marketing. See Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995). A defendant's failure to warn of a product's potential dangers when warnings are required is a type of marketing defect. See id. A manufacturer has a duty to warn if it knows or should know of the potential harm to a user because of the nature of its product. See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420 (Tex.1997). Euclid contends that the evidence was insufficient to support the jury's verdict that the short-nosed haulers were unreasonably dangerous and that Euclid knew or should have known of a potential harm to users because of the nature of its product. Euclid does not dispute that it failed to warn plaintiffs of unreasonably dangerous characteristics of its short-nose haulers.
39
A manufacturer has a duty to test and inspect his product to uncover scientifically discoverable dangers before the product is sold. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 562 (Tex.App.--Houston [1st Dist.], 1996, writ granted). A product must not be made available to the public without disclosure of those dangers that the application of reasonable foresight would reveal. See id. There is evidence in the record that Euclid never ride-tested the short-nosed hauler before placing it on the market. In 1978, after an Australian purchaser complained about the rough ride of its short-nosed hauler, Euclid performed some ride tests specifically on the Australian hauler and found the ride to be unacceptable. However, the short-nosed haulers were still not tested by Euclid in accordance with ISO procedures or otherwise, even though Euclid's chief engineer admitted that he was aware of the ISO procedures for whole body vibration testing. Euclid made no design changes in response to the reports made after the Australian testing, and even canceled its Ride Improvement Program.
40
Further, there was evidence that Euclid knew or should have known that three people sustained injuries caused by the rough ride of the short-nosed hauler sold to the Australian mine. Euclid took the position that the complaints were limited to one machine in Australia. The district court admitted into evidence a letter which had been sent to Morgan Equipment, an authorized Euclid dealer, which referenced "3 recent injuries (1 compensatable) claimed to be caused by the rough ride of" the Euclid short-nosed hauler. The letter also references "representations by the union on driver discomfort...." Euclid contends that this is not evidence of Euclid's negligence because there is no evidence that anyone at Euclid saw the letter and because it is not clear that the injuries referred to in the letter were same type injuries experienced by plaintiffs in this case. Euclid acknowledges that they were aware that the Australian short-nosed hauler had an unacceptably rough ride7, but points to evidence that the Australian hauler was a "lemon," and that it was specially modified to the customer's specifications, operated on rougher roads, and that these differences between the Australian hauler and the Texas haulers excused Euclid from warning the Texas buyers about the Australia rough ride problems.
41
The trial record contains evidence upon which a rational jury could base a rejection of Euclid's position. Euclid entered into a contract with Battelle Laboratories in February 1978, later expanded in May 1978, under which Euclid would pay $17,500 to Battelle to solve the "ride problem" in its short-nosed haulers. Euclid also initiated a Ride Improvement Program during 1978, which was later discontinued. These efforts, combined with the letter and the failure to test the equipment prior to marketing is sufficient to support the jury's conclusion that Euclid knew or should have known of the potential harm to users because of the rough ride problems of the short-nosed haulers.
42
c. Causation
43
Causation is an element of both the plaintiffs' strict products liability claims and their negligence claims. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995). Strict liability requires proof of a producing cause, while proximate cause is the test in negligence actions. See General Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex.1993).
44
A producing cause is an "exciting or contributing cause which in the natural sequence, produced the injuries or damages complained of." Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex.1995).
45
Proximate cause, on the other hand, consists of both cause in fact and foreseeability. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995). Cause in fact means that a defendant's acts or omissions were a substantial factor in bringing about a plaintiff's injury. Id. Foreseeability is satisfied by showing that the actor, as a person of ordinary intelligence, should have anticipated the danger to others by his negligent act. See McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980). Foreseeability does not require the actor to anticipate the particular accident, but only that he reasonably anticipate the general character of the injury. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987).8
46
There need not be direct proof of causation. The jury may infer proximate cause from the surrounding circumstances. See Mosley v. Excel Corp., 109 F.3d 1006, 1009 (5th Cir.1997). If a negligent act actively aids in producing an injury, it need not be the sole cause, but it must be a concurring cause, and such as might reasonably have been contemplated as contributing to the result. See McClure, 608 S.W.2d at 904. However, causation "must be established by probative evidence, not by mere conjecture or guess." Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir.1997).
47
The question for this court is whether there was sufficient evidence to support the jury's conclusion that Plaintiffs' back injuries were, more likely than not, caused by driving Euclid's coal haulers. Of course, there is not a precise fit between science and the applicable legal burdens of proof. However, when the incidence of a disease or injury is sufficiently elevated due to exposure to a purported source of injury, a plaintiff can raise a fact question on causation by presenting evidence that he was exposed to that substance and exhibits the disease or injury. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997), citing Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1320 n. 13 (9th Cir.1995)(on remand). The question remains what quantum of elevation is sufficient to satisfy the preponderance of evidence burden of proof. The Texas Supreme Court seemingly answered this question, holding that epidemiological evidence should show that the risk of an injury or condition in the exposed population was more than double the risk in the unexposed or control population. Havner, 953 S.W.2d at 716. However, an intermediate Texas appellate court subsequently addressing the Havner opinion takes the position that Havner did not "set any strict rules regarding what types of evidence would be sufficient or not sufficient to support a finding of causation." Minnesota Mining and Manufacturing Co. v. Atterbury, 978 S.W.2d 183, 197 (Tex.App.--Texarkana 1998)(1998 WL 436916 at * 15). There is no requirement that a party must have reliable epidemiological evidence of a relative risk of 2.0 or greater. Id. Reliable evidence of relative risk less than 2.0 can be considered, but must be supported by other credible, reliable evidence of causation. Id. Further, epidemiological evidence with a relative risk of 2.0 or greater does not automatically pass a sufficiency review. Id.
48
Assuming, without deciding, that Havner' § rule controls,9 the evidence before the jury more than satisfies the relative risk of 2.0 standard. According to Aprill's testimony, the plaintiffs' condition is revealed in their MRIs as a "fingerprint" of a characteristic number and distribution of end plate fractures which is essentially unique to hauler drivers. While 68% of the control group exhibited some evidence of end plate fractures, none of those individuals exhibited the characteristic injuries found in 90% of hauler drivers, that is, a pattern of back pathology discernable from the number, severity and distribution of end plate fractures. While the test formulated in Havner, if applicable, requires incidence of "fingerprint" conditions in the hauler driver population double that of the control group, the evidence established that the fingerprint condition found in 90% of the hauler drivers existed in 0% of the control population. Aprill additionally testified that, on average, the hauler drivers had twice as many end plate fractures as the control group. Aprill explained to the jury that end plate fractures are caused by vertical compression stress on the spine. If a person falls and lands hard on his buttocks, this may cause an individual end plate to crack. Such injuries appear most often at the top of the lumbar spine. However, long-term exposure to whole body vibration causes multiple end plate fractures throughout the spine. The control group exhibited the former pattern of end plate fractures, while the hauler drivers exhibited the latter. This evidence is sufficient to support the jury's verdict on the issue of causation under the Havner standard.
V. STATUTE OF LIMITATIONS
49
a. The Texas Discovery Rule
50
In Texas, a personal injury action must be filed "not later than two years after the day the cause of action accrues...." TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a). Generally, accrual occurs on the date the plaintiff first becomes entitled to sue the defendant based upon a legal wrong, even if the plaintiff is unaware of the injury. Zidell v. Bird, 692 S.W.2d 550, 554 (Tex.App.--Austin, 1985, no writ).
51
The "discovery rule" is an exception to this general rule. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). Under the Texas discovery rule, the accrual of a cause of action is deferred in cases in which the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred but may be objectively verified. See S.V. v. R.V., 933 S.W.2d 1, 6 (Tex.1996).
52
Euclid asserted at trial that the statute of limitations barred the Plaintiffs' claims and the issue was submitted to the jury. The jury found that Plaintiffs failed to file their lawsuits within two years of the date they first suffered injury. The jury made an additional findings that 1) the plaintiffs filed their lawsuits within two years of the date they first knew, or in the exercise of reasonable diligence should have known, that their injuries were caused by driving the coal haulers; 2) plaintiffs' injuries were inherently undiscoverable; and 3) plaintiffs' injuries were objectively verifiable.
53
b. Standard of Review
54
On appeal, Euclid challenges the sufficiency of the evidence to support the jury's finding regarding the inherently undiscoverable and objectively verifiable nature of the injuries. Like the sufficiency of the evidence issues on liability, we review this ground of error by considering all evidence, drawing all reasonable inferences in the light most favorable to the nonmoving party. Gutierrez v. Excel Corp., 106 F.3d 683, 686 (5th Cir.1997). We will reverse the denial of Euclid's motion for judgment as a matter of law if there was not substantial evidence "such that reasonable jurors might reach different conclusions ..." Id. at 686-87.
55
c. Inherently undiscoverable injuries
56
An injury is "inherently undiscoverable" if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence. S.V. v. R.V., 933 S.W.2d at 7. Euclid argues that because Plaintiffs were aware of a painful "back-slapping" sensation while driving the coal haulers, their injuries were immediately "discoverable." Plaintiffs counter that, in spite of the uncomfortable ride, they had no reason to suspect the insidious damage that was occurring within their spines. We conclude that the evidence was sufficient to support the jury's "inherently undiscoverable" finding. Repetitive trauma injuries like those at issue in this case are not readily susceptible to discovery at the time of a particular, individual contact. Rather, the fractured endplates throughout the plaintiffs' spines which were discovered later, were "unexpected latent injur[ies] which were unknown and unknowable at the time of the traumatic event." See Albertson v. T.J.Stevenson & Co., Inc., 749 F.2d 223, 233 (5th Cir.1984).
57
d. Objectively verifiable injuries
58
Euclid contends that there is not legally sufficient evidence to support the jury's determination that the Plaintiff's injuries were objectively verifiable. Euclid relies on language from the Texas Supreme Court's opinion in S.V. v. R.V., 933 S.W.2d 1 (Tex.1996): "For the purpose of applying the discovery rule, expert testimony on subjects about which there is no settled scientific view ... cannot provide objective verification of [alleged wrong and injury.]" Id. at 18, 39 Tex. Sup. Ct. J. 386. S.V. held that expert opinion regarding recovered memories of childhood sexual abuse could not meet the objective verifiability element for the Texas discovery rule. The court noted the lack of consensus in the scientific community concerning the reliability of recovered memory, id. at 17-18, but noted that expert opinion coupled with other evidence could provide the kind of verification required. Id. at 16.
59
Here, the jury heard evidence that plaintiffs suffered herniated intervertebral discs and degenerated spines, confirmed by recognized diagnostic testing. We hold that such evidence, which came in the form of testimony from medical experts, relying on long accepted methods of reading and interpreting MRIs, is sufficient to support the jury's affirmative answer on the "objectively verifiable" nature of the injuries.
60
e. Limitation bar as to Appellee Humber
61
Euclid devotes a single sentence to its contention that a unique limitations argument bars the claim of Tim Humber because a doctor told him more that two years before he filed suit that repetitious trauma had compromised his back. However, the jury heard evidence that Humber's doctor had actually diagnosed a herniated disc and it was TUMCO that advised him to claim his injury was due to repetitive trauma disease so that an injury date could be established for workers' compensation purposes. Such evidence does not preclude a reasonable jury from finding that Humber discovered that he suffered a repetitive trauma injury less than two years before he filed suit or that his injury resulted from driving the coal haulers.
VI. PROPORTIONATE RESPONSIBILITY10
62
The district court reduced the award of damages to Plaintiffs as a consequence of the jury's findings concerning Plaintiffs' proportionate responsibility for their injuries.11 A take nothing judgment was entered as to Rucker because his proportionate responsibility was found to be 70%. Plaintiffs filed a cross-appeal, arguing that there is insufficient evidence to support the jury's findings regarding their proportionate responsibility for their injuries and that they should have been granted a judgment as a matter of law on that issue.
63
a. Was the issue preserved for appellate review?
64
Initially, we must determine whether Plaintiffs preserved the right to appeal the jury's proportionate responsibility findings. Euclid contends that Plaintiffs failed to comply with the requirements of FED.R.CIV.P. 50, thus precluding our review of the sufficiency of the evidence to support the jury's verdict on this issue. Generally, sufficiency of the evidence is not reviewable on appeal unless a pre-verdict motion for judgment as a matter of law was made in the trial court at the conclusion of all the evidence. See McCann v. Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir.1993). However, strict compliance with Rule 50 is not necessary so long as the purposes of the requirement have been satisfied. Greenwood v. Societe Francaise De, 111 F.3d 1239, 1244-45 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 558, 139 L.Ed.2d 400 (1997). "These purposes are met when the court and the [opposing party] are alerted to the grounds on which the [complaining party] contends the evidence is insufficient prior to the submission of the case to the jury." Id. at 1245.
65
In this case, the evidence closed shortly before noon on Thursday, January 30, 1997. The trial court then considered Euclid's motion for judgment as a matter of law and began work on the jury charge. After 6:00 p.m. the following day, after completing what the court termed its "informal charge conference" the court allowed the parties to go on the record with "comments, requested instructions, and objections." At that time, Plaintiffs objected orally, on the record, to the submission of contributory negligence to the jury on the ground that there was not legally sufficient evidence to support the submission of the evidence to the jury. The court overruled the objection. After the verdict was returned, Plaintiffs filed a "renewed" motion for judgment as a matter of law addressing the sufficiency of the evidence of contributory negligence.
66
It is undisputed that Plaintiffs failed to file a formal, written, pre-verdict motion for judgment as a matter of law. However, we find that Plaintiffs' objection to the jury charge on sufficiency of the evidence grounds served as the functional equivalent of a formal pre-verdict motion. See Greenwood, 111 F.3d at 1245, n. 7 & 8; see also Wells v. Hico ISD, 736 F.2d 243, 251-52 (5th Cir.1984). The issue of sufficiency of the evidence on plaintiffs' proportionate responsibility is thus preserved for appellate review.b. Sufficiency of the evidence on proportionate responsibility
67
Plaintiffs contend that there is no evidence that any of the Plaintiffs had an awareness of the cumulative trauma they were suffering as a result of their exposure to Euclid's coal haulers. Nor, they argue, is there any evidence in the record to indicate that any of the Plaintiffs should have had knowledge of the dangerous and unsafe nature of the vibration levels they were receiving while driving the coal haulers.
68
Euclid answers that the evidence supports findings that Plaintiffs were negligent and at least partially responsible for their alleged physical injuries and damages. Euclid points to evidence that the coal hauler, like any other vehicle, had a rougher ride when road conditions were bad and the driver was driving too fast. The record contains evidence that there was no reason for driving the haulers at top speed and in fact TUMCO management wanted its drivers to slow down. Further, there was evidence that Rucker continued to smoke, though doctors had told him smoking aggravates his back injury.
69
Given evidence that the Plaintiffs knew the vibrations worsened based on the speed the haulers were driven and that the drivers drove the haulers faster than their employer recommended, we find sufficient evidence to support the proportional negligence findings of the jury. Further, the evidence is sufficient to sustain the jury's finding that Rucker was responsible for 70% of the negligence that resulted in his injuries, thereby precluding any obligation for Euclid to compensate him for his damages.
VII. JURY CHARGE
70
a. Euclid's challenge to the jury charge on the issue of causation
71
Concerning the causation element of Plaintiffs' negligence cause of action, the district court instructed the jury that
72
"[P]roximate cause" means that cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces an event without which that event would not have occurred, and which event or some similar event should have been foreseen by a person in the exercise of ordinary care under the same or similar circumstances....
73
The district court separately defined the causation element of the Plaintiffs' products liability cause of action:
74
"[P]roducing cause" as used in these instructions, means an efficient, exciting, or contributing cause, which in a natural and continuous sequence, produces the injury in question....
75
Euclid complains that the district court did not accept its proposed jury instruction that in order to impose liability on negligence or products liability claims, the jury must determine that Euclid's conduct was a substantial factor and a "but for" cause of the plaintiffs' injuries, citing Texarkana Memorial Hosp., Inc. v. Murdock, 946 S.W.2d 836 (Tex.1997) and Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir.1997).
76
This court has stated the standard of review for jury charge challenges:
77
First, the challenges must demonstrate that the charge as a whole creates substantial and ineradicable doubt whether the jury has been properly guided in its deliberations. Second, even if the jury instructions were erroneous, we will not reverse if we determine, based upon the entire record, that the challenged instruction could not have affected the outcome of the case. If the party wishes to complain on appeal of the district court's refusal to give a proffered instruction, that party must show as a threshold matter that the proposed instruction correctly stated the law.
78
Flores v. Cameron County, Tex., 92 F.3d 258, 262 (5th Cir.1996)(internal quotation marks omitted).
79
Euclid complains that the jury charge did not adequately inform the jury that because the injuries claimed by the plaintiffs do not arise from any discrete event, the plaintiffs bear the burden of showing that the defect or negligence actually caused the injuries. We are not convinced that the charge as a whole, which employed language identical to the definitions provided in the Texas Pattern Jury Charges, creates substantial and ineradicable doubt whether the jury has been properly guided in its deliberations. We therefore will not disturb the verdict based on Euclid's challenge to the jury instructions on causation.
80
b. Rucker's challenge to the jury charge
81
Rucker contends on cross-appeal that the district court abused its discretion by refusing to grant his request that the jury be instructed on the effect of its answers regarding proportional responsibility. Unlike Texas state courts, federal courts are free to tell juries the effect of their answers. See Martin v. Texaco, Inc., 726 F.2d 207, 216 (5th Cir.1984). The decision whether to instruct the jury on the effects of its answers is "a matter of discretion for the trial court." Martin v. Texaco, Inc., 726 F.2d 207, 216 (5th Cir.1984).
82
Rucker further complains that the trial court refused his requested special instruction that "a plaintiff's negligence, if any, in merely failing to discover a product defect or guard against the possibility of its existence cannot form the basis of an affirmative finding against a plaintiff on the issue of negligence." Rucker takes the position that the omission of these two instructions led to an incomplete and erroneous charge on Euclid's proportionate responsibility defense and affected the outcome of Rucker's case. Rucker alleges that, taken together, these two jury charge decisions by the district court amounted to error in the jury instructions that prejudiced the outcome of the case. See Aero Int'l, Inc. v. United States Fire Ins. Co., 713 F.2d 1106, 1113 (5th Cir.1983).
83
In Perricone v. Kansas City Southern Rwy. Co., 704 F.2d 1376 (5th Cir.1983), the district court gave a supplemental instruction which informed the jury that the Plaintiff would not recover any damages if the Plaintiff was found to be more than 50% negligent. This Court affirmed the giving of the supplemental instruction in the absence of contemporaneous objection. Id. at 1377. However, Perricone does not mandate the giving of such instructions. We find that the failure of the district court to instruct the jury on the effect of its answers concerning the Plaintiffs' proportionate responsibility in this case does not call into question the jury's factual determination that Plaintiffs were negligence and that their negligence was a producing cause of their injuries.
84
In a strict liability cause of action, a plaintiff's failure to discover or guard against a product's defect is not a defense to a defendant's liability. See Keen v. Ashot Ashkelon, 748 S.W.2d 91 (Tex.1988). Therefore, Rucker's requested charge was a correct statement of the law in that regard. However, we are not left with substantial or eradicable doubt that the jury was properly guided in its deliberations. See Flores, 92 F.3d at 262. Both Plaintiffs and Euclid developed through evidence and argument before the jury their theories concerning proportionate responsibility of the Plaintiffs. We will not reverse the verdict because, based on the entire record, we do not conclude that the requested instructions would have affected the outcome of the case. Id.
VIII. CONCLUSION
85
Based on the foregoing, we affirm the district court's judgment.
86
AFFIRMED.
DeMOSS, Circuit Judge, dissenting:
87
I respectfully dissent. The plaintiffs in this case did not produce evidence that sufficiently demonstrates a causative link between their alleged injuries and Euclid's short-nose coal haulers. The district court abused its discretion by lowering the Daubert standard for admitting expert opinion testimony which was neither relevant nor reliable. Finally, this case should have been dismissed as time-barred because the plaintiffs' claims of injury, based on one doctor's subjective evaluation of MRIs, are not objectively verifiable as required under Texas case law governing the tolling of the statute of limitations pursuant to the discovery rule.
I.
88
Euclid, Inc., designs and manufactures 120-ton coal-hauling vehicles used at open pit coal mines. Before the mid-1970s, Euclid used a "long-nose" design. Like a pick-up truck, this design put the engine at the front, with the cab above and behind. Then, responding to consumer demands for greater driver visibility and maneuverability, Euclid and its competitors switched to "short-nose" designs. The new designs placed the driver in front, with the engine below and behind. This gives the front of the vehicle a flat, snub-nosed appearance. Euclid's design changes included other modifications, including a shorter wheel base, a trailing arm suspension, and rubber struts instead of steel springs.
89
When the short-nosed design was introduced in the mid-1970s, Euclid sold several vehicles to Texas Utilities Mining Company (TUMCO). The five original plaintiffs in this case, males ranging in age from 32 to 46, are former TUMCO employees. They all operated the Euclid 322 NDT short-nose coal hauler. In addition, the plaintiffs also operated other heavy machinery in the coal pit, including bulldozers, scrapers, water trucks, and end-dump trucks.
90
The plaintiffs allege that they have suffered back injuries which resulted from "repetitious trauma and severe vibrations" experienced while operating the Euclid short-nose coal hauler. They sued Euclid, claiming that their back conditions were due to the Euclid short-nose coal hauler's defective design, which rendered the product unreasonably dangerous (the strict products liability claim), and Euclid's negligent design, marketing, and failure to warn customers and operators about safety risks pertaining to the short-nose coal hauler (negligence and gross negligence claims). Their suit was filed in the Eastern District of Texas, Marshall Division.
91
The sufficiency and admissibility of the testimony offered by the plaintiffs' expert witnesses lies at the heart of the controversy in this appeal. The plaintiffs' five testifying experts have been divided by the panel majority into two categories--two engineer "liability" experts who testified about the shortnose coal hauler and three medical "causation" experts who testified about the plaintiffs' injuries. Euclid sought summary judgment based on its contention that the plaintiffs' proposed expert testimony, necessary to establish causation and liability, could not be admitted pursuant to Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Euclid's Daubert argument was rejected by the district court, but a continuing objection to identified expert testimony was permitted. Euclid also raised a limitations defense, but the district court determined that the discovery rule would apply.
92
Ultimately, a jury rendered a $2.8 million verdict against Euclid. Euclid moved for judgment as a matter of law (JMOL) on the question of liability, all plaintiffs sought JMOL on Euclid's contributory negligence arguments, and plaintiff Tim Rucker, who received a take-nothing judgment because of the jury's determination that he was 70% contributorily negligent, moved for a new trial. These post-trial motions were denied. All parties timely appealed.
II.
93
A detailed discussion of the expert testimony offered at trial by the plaintiffs is necessary to the ensuing substantive discussions. As previously mentioned, the experts fall into two general categories--engineers who testified about the design and quality of ride of the short-nose coal hauler ("liability experts"), and doctors who testified about the plaintiffs' physical condition ("causation experts").
A.
94
The liability experts testified about Euclid's coal haulers. Mr. Geoff McDonald is an Australian engineer who had experience with the Euclid short-nose coal hauler dating back to 1977. Workers asked to operate a problematic Euclid short-nose coal hauler at the Blackwater Mine in Australia refused to operate it because its ride was so rough.1 Mr. McDonald was asked to test the short-nose coal hauler at that time, and based on his testing in Australia, he testified that the long-nose haulers are safer because they are four to five times less likely to cause injury than the short-nose haulers.
95
Mr. Arthur Chaseling is a consulting mechanical engineer who also testified that he thought the long-nose design was safer. In 1996, Mr. Chaseling traveled with Mr. McDonald to Texas to test TUMCO's short-nose coal haulers. Mr. McDonald testified that the mine operations and physical layout were similar to those at the Blackwater mine. Messrs. Chaseling and McDonald together measured the vibrations experienced by TUMCO's employees who operated the Euclid short-nose coal hauler. These tests were conducted by attaching an accelerometer to the metal frame below the seat of a Euclid coal hauler. Using these measurements, Mr. Chaseling determined that the Euclid short-nose coal hauler's vibrations exceed the health and safety limits of the International Standards Organization (ISO).2 Messrs. Chaseling and McDonald did not test any of the other earth-moving equipment operated at the mine to measure their vibrations, and they did not attempt any sort of comparison between the short-nose coal hauler and the other machines operated by the plaintiffs.
B.
96
The key causation expert was Dr. Charles N. Aprill, a medical doctor specializing in diagnostic radiology. He performed MRIs on the backs of approximately ninety TUMCO employees, including the plaintiffs, who operated the Euclid short-nose coal hauler. These employees also operated other heavy machinery such as scrapers, bulldozers, water trucks, and end-dump trucks,3 but Dr. Aprill's tests did not indicate that he had considered the effect of, or differentiated among the TUMCO employees based on, their length of employment or the amount of time they spent operating particular machines. He compared the results of these MRIs with a "control group" of MRIs performed on a group of "consecutive patients who were scanned roughly during the time these [TUMCO] patients were scanned, who were referred because they had some sort of back problem." The control group patients were selected to be age- and gender-matched to the test group of ninety TUMCO employees, but the control group did not include anyone who operated coal haulers or any other kind of earth-moving equipment.
97
Dr. Aprill found "endplate infractions"--impact craters which form in an intervertebral disc when a load is applied to it--in 90% of the TUMCO employees and in 68% of the "control group" of other back pain patients being treated by Dr. Aprill. He also found that while the endplate infractions occurring in the general back-pain population clustered between the lower dorsal spine and the upper lumbar spine, the TUMCO employees exhibited endplate infractions in that area as well as throughout the lumbar spine. According to Dr. Aprill, these endplate infractions render one more susceptible to back injury. Dr. Aprill concluded that the "repeated vertical compression" experienced by the TUMCO employees caused the endplate infractions.
98
On cross-examination, Dr. Aprill opined that for "the normal population without any occupational stresses," the incidence of endplate infractions is "something in the order of forty percent or so," and that "any person that's subjected to repetitive compression, whatever the source, is likely to develop changes similar to what we saw." Dr. Aprill stated that he had not compared the MRIs of the backs of short-nose coal hauler operators to test results for the operators of any other type of coal hauler; neither had he compared the MRIs of short-nose coal hauler operators to those of workers who operated bulldozers, end-dump trucks, scrapers, water trucks, or tractors. He further stated that he could not testify about the effect of operating those kinds of heavy equipment because he had "not seen MRI scans on large numbers of other heavy equipment operators." When challenged about his conclusions that the plaintiffs' endplate infractions were caused by the vibrations of the Euclid short-nose coal hauler, Dr. Aprill conceded that he could not point to any study which might indicate how much vibration was necessary to produce the injuries he identified. His method and findings had not been reviewed by a statistician or an epidemiologist or submitted for peer review and publication, and no rate of error had been calculated for his theory. Furthermore, he had not conducted any prior research or studies--nor had he submitted any papers or published any articles--on vibration and its effects on the back.
99
Dr. Richard W. Bunch is a ergonomics consultant and physical therapist who rode in a Euclid short-nose coal hauler. Dr. Bunch used a pen and a pad of paper to keep track of the jerks and jolts that he felt during the ride. Based on his conclusions from this "semi-objective" field experiment, he testified that the vibrations experienced by the plaintiffs when they operated the Euclid short-nose coal hauler contributed to their injuries and that the design of the cab was not sufficient to protect the operator from the vibrations. Dr. Bunch's test was not subjected to peer review.
100
Dr. Kelvin A. Samaratunga is a neurosurgeon and a clinician who evaluates and treats back pain. He reviewed all of the previously described expert testimony, and he rode on a Euclid short-nose coal hauler. In particular, he reviewed the plaintiffs' medical records and MRIs. He testified that he agreed with Dr. Aprill that the endplate infractions were the result of whole body vibration, and that they would eventually lead to back problems for the plaintiffs. On cross-examination, Dr. Samaratunga conceded that he was not an expert on vibration and he had not performed any studies or published any materials in that field of study. He is not an epidemiologist or a statistician either. When asked, Dr. Samaratunga indicated that he could not identify any published study which indicated that the levels of vibration measured in the short-nose coal haulers could cause the injuries of which the plaintiffs complained. The materials reviewed by Dr. Samaratunga did not address the effect, if any, of the other equipment operated in the mines by the plaintiffs.
III.
101
Euclid unsuccessfully moved for judgment as a matter of law based on the insufficiency of the evidence to establish a causative link between the plaintiffs' injuries and their operation of the Euclid short-nose coal hauler. De novo review applies, with inferences drawn in favor of the nonmoving party. See Gutierrez v. Excel Corp., 106 F.3d 683, 686 (5th Cir.1997).
A.
102
Texas law provides the substantive rule of what the plaintiffs were required to establish in order to prove Euclid's liability. The landmark decision of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), established that "[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State." 304 U.S. at 78, 58 S.Ct. at 822. Generally speaking, federal courts sitting in diversity apply the substantive law of the state providing the law of decision, while following federal procedural law. See, e.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S.Ct. 2211, 2219, 135 L.Ed.2d 659 (1996). When the difference between applying state law and federal law is outcome-determinative, that factor is a strong indicator that the federal court should apply state law. See id. at 426-28, 116 S.Ct. at 2219-20; Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). The test of outcome determination cannot, however, be applied mechanically; a federal court must instead be guided by "the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." Gasperini, 518 U.S. at 428, 116 S.Ct. at 2220 (quoting Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965)).
103
Consistent with these principles, it is well established that in diversity cases, state law determines the quality and quantum of evidence that must be produced to establish a cause of action, while the standard for reviewing the sufficiency of evidence to sustain a jury verdict on appeal is indisputably governed by a federal standard. See, e.g., Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir.1989); Tutor v. Ranger Ins. Co., 804 F.2d 1395, 1398 (5th Cir.1986); Ayres v. Sears, Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir.1986); McCandless v. Beech Aircraft Corp., 779 F.2d 220, 223 (5th Cir.1985); Fairley v. American Hoist & Derrick Co., 640 F.2d 679, 681 (5th Cir. Unit A 1981). Federal law thus mandates that we review the jury's verdict by the same standard as the district court, affirming unless "there is no legally sufficient evidentiary basis for a reasonable jury to find" as the jury did. Fed.R.Civ.P. 50(a)(1); see Denton v. Morgan, 136 F.3d 1038, 1044 (5th Cir.1998). The Erie doctrine, however, mandates that the object of this inquiry be whether the evidence adduced by the plaintiffs adequately establishes a prima facie case according to the laws of the state of Texas, such that the jury verdict may be approved.
104
This result is necessary both to discourage forum-shopping and to ensure the equitable administration of the laws. Were we to apply some lower standard--essentially lowering the burden of proof--products liability and negligence plaintiffs would have a considerable incentive to file suit in federal court rather than in state court because it would be easier for them to win a case. That is precisely what the Erie doctrine seeks to prevent. In this case, we must therefore consider whether the plaintiffs have proved, as a matter of Texas law, that their injuries were caused by the Euclid short-nose coal hauler.
B.
105
Under Texas law, causation in fact is an element of the both the plaintiffs' strict products liability claims and their negligence claims. See, e.g., Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995).4 In order to establish this element, common to all their various claims that Euclid engaged in tortious activity, the plaintiffs must prove that vibrations produced by the short-nose coal hauler constituted "a substantial factor in bringing about the injury and without which no harm would have occurred. " E.g., Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458-59 (Tex.1992) (emphasis supplied); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985) (emphasis supplied); see also Restatement (Third) of Torts: Products Liability § 15 (1997) (hereinafter Restatement (Third) ) ("Whether a product defect caused harm to persons or property is determined by the prevailing rules and principles governing causation in tort."). By requiring that the allegedly tortious activity be a factor "without which no harm would have occurred," the test embodies, as one of its elements, the "traditional 'but-for' rule of causation." 1 J. Hadley Edgar, Jr. & James B. Sales, Texas Torts and Remedies § 1.05[a], at 1-111 (1998); see also W. Page Keeton et al., Prosser and Keeton on Torts § 41, at 266 (5th ed.1984) (hereinafter, Prosser & Keeton ) ("Restricted to the question of causation alone, and regarded merely as a rule of exclusion, the 'but-for' rule serves to explain the greatest number of cases...."); David W. Robertson, The Common Sense of Cause in Fact, 75 Texas L.Rev. 1765, 1768 (1997) (noting that the but-for standard is the "most widely accepted test" for determining cause in fact); Restatement (Third), supra, § 15. That being the case, Texas law requires that the plaintiffs prove but-for causation with respect to the alleged injurious effect of the short-nose coal hauler; it is not sufficient for the plaintiffs to merely present evidence that the vibrations produced by the short-nose coal hauler constituted a "substantial factor" in producing the plaintiffs' injuries.5
C.
106
A five-step logical process provides a careful (if tedious) model for determining whether a given event is a cause in fact of a plaintiff's injuries. In summary, the five logical steps for proving but-for causation are as follows:
107
(a) identify the injuries in suit; (b) identify the wrongful conduct; (c) mentally correct the wrongful conduct to the extent necessary to make it lawful, leaving everything else the same; (d) ask whether the injuries would still have occurred had the defendant been acting correctly in that sense; and (e) answer the question.
108
Robertson, supra, at 1771. The application of this framework of analysis will help to locate any logical flaw which may taint the plaintiffs' theory of causation.
109
The first step is to identify the plaintiffs' injuries. In this case, the plaintiffs have alleged that they have suffered endplate infractions in their spines which render them more susceptible to serious back pain in the future. The second step is to name the defendant's allegedly wrongful conduct. Because there are multiple answers at this second step relating to each of the plaintiffs' theories of liability, we must consider each theory separately.
1.
110
The plaintiffs have a strict products liability claim and a negligence claim based on defective design. The allegedly wrongful conduct for the purposes of both of these claims was negligent design of the short-nose coal hauler pursuant to Euclid's business decisions to stop manufacturing long-nose coal haulers and to begin manufacturing short-nose coal haulers. Because these separate claims focus on the same activity, they may be grouped for the purpose of determining whether that activity was a cause in fact of the plaintiffs' injuries.
111
Taking the third analytical step with respect to these claims, we must hypothesize a scenario that would erase the effect of the allegedly wrongful conduct. According to the plaintiffs' theory of their products liability case, the short-nose coal hauler subjects its operator to harmful vibration, rendering the machine defective and unreasonably dangerous.6 Similarly, in the negligence rather than strict liability context, the plaintiffs additionally contend that the Euclid acted negligently in designing the short-nose hauler, such that the machine's operators were subjected to harmful vibrations, thus resulting in injury. In order to overcome the argument that the balance between "the utility of the product and the risk involved in its use" precludes liability on these theories, see, e.g., American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex.1997), the plaintiffs pointed to the older long-nose coal hauler as a safer alternative design which, they contend, did not suffer from the same defect.
112
For the purpose of these design-based theories, then, the third step of the analysis would be accomplished by trading the short-nose coal haulers for Euclid's older long-nose coal hauler models. The inquiry would then be completed by determining, at the fourth step, whether the plaintiffs' injuries would have occurred if they drove long-nose coal haulers and not short-nose coal haulers. If not, taking the fifth and final logical step, cause in fact has been established.
2.
113
Regarding the plaintiffs' remaining negligence and gross negligence claims, the allegedly wrongful conduct was a marketing defect, namely, Euclid's failure to warn customers and operators about safety risks arising from vibration in the short-nose coal hauler. The plaintiffs contend that such warnings would have allowed them to minimize their exposure to vibration and repetitive trauma while operating the short-nose coal hauler.
114
Removing the effect of the wrongful conduct to take the third logical step in this scenario, one must hypothesize a work environment in which TUMCO and its employees were warned about safety risks arising from the short-nose coal hauler's tendency to vibrate. One would therefore assume that precautions were taken to reduce or eliminate the exposure to vibration, either by TUMCO's refusal to buy Euclid's short-nose coal hauler, the plaintiffs' refusal to operate the machine, or perhaps some sort of prophylactic precaution such as a modification of the machine itself or of the employees' usage of the machine. Given this scenario, the fourth step leads to the question of whether the plaintiffs would have been injured in a work environment exactly the same as it actually was except that they were not exposed to unsafe vibrations in the short-nose coal hauler. If it can be proved that there would have been no injury in this scenario, cause in fact will have been established for the plaintiffs' negligence claim against Euclid.
3.
115
Based on the above reasoning, the key logical step in both scenarios is the fourth step designated above, specifically, "whether the injuries that the plaintiff[s] suffered would probably still have occurred had the defendant behaved correctly in the sense indicated." Robertson, supra, at 1771. It is apparent that in order to establish Euclid's liability on theories of strict products liability or negligence, the plaintiffs were required to present evidence to prove one of the two factual causation scenarios. They could show either that similarly situated workers who operated long-nose coal haulers but not short-nose coal haulers would not experience the injuries experienced by the plaintiffs (products liability and design defect claims), or that similarly situated workers who operated all the machines operated by the plaintiffs except the short-nose coal hauler would not experience the injuries experienced by the plaintiffs (marketing defect or failure-to-warn claims). I now turn to those absolutely necessary links of causation.
D.
116
Our guiding star in considering whether the plaintiffs have adequately established causation to justify imposing liability upon Euclid should be the recent treatment of tort causation by the Supreme Court of Texas in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997) (hereinafter, Havner ).
117
In that case the court reversed a jury verdict in favor of plaintiffs who had claimed that use of the drug Bendectin caused a birth defect in their child. The central issue throughout the litigation was the reliability of the expert testimony offered to establish causation. Though the specific issue before the court was whether the Havners' evidence was scientifically reliable and constituted "some evidence" to support the plaintiffs' judgment, the circumstances of the case led the court to consider precisely what a plaintiff must establish to raise a fact issue of whether a drug caused an individual's birth defect. This prompted a discussion of some very fundamental issues relating to proving causation.
118
The court noted that causation in toxic tort cases can be discussed in terms of either general or specific causation:
119
General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury. In some cases, controlled scientific experiments can be carried out to determine if a substance is capable of causing a particular injury or condition, and there will be objective criteria by which it can be determined with reasonable certainty that a particular individual's injury was caused by exposure to a given substance.
120
Havner, 953 S.W.2d at 714-15. In many toxic tort cases, however, direct experimentation cannot be done. As a result, there can be no reliable, direct evidence of specific causation. The court thus reasoned:
121
In the absence of direct, scientifically reliable proof of causation, claimants may attempt to demonstrate that exposure to the substance at issue increases the risk of their particular injury. The finder of fact is asked to infer that because the risk is demonstrably greater in the general population due to exposure to the substance, the claimant's injury was more likely than not caused by that substance. Such a theory concedes that science cannot tell us what caused a particular plaintiff's injury. It is based instead on a policy determination that when the incidence of a disease or injury is sufficiently elevated due to exposure to a substance, someone who was exposed to that substance and exhibits the disease or injury can raise a fact question on causation.
122
Id. at 715 (emphasis supplied) (citing Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1320 n. 13 (9th Cir.1995) (on remand from the Supreme Court)).
123
While Havner dealt with causation principles in the context of a toxic tort case, the underlying issues are compellingly similar to the problems of proving that the Euclid short-nose coal hauler caused the plaintiffs' injuries in this case. First, the plaintiffs in Havner, just like the plaintiffs in the instant case, brought a products liability suit based on theories of negligence, defective design, and defective marketing. Second, the Havners did not contend that all limb reduction birth defects are caused by Bendectin, and, likewise, the plaintiffs before us in this appeal recognize that not all endplate infractions are caused by driving Euclid's short-nose coal hauler. Finally, in Havner, as here, the only proof of causation offered by the plaintiffs was scientific expert testimony relating the results of studies on the association between the use of a product and certain injuries which allegedly resulted from that use.
124
The plaintiffs and the panel majority would prefer that this case be treated differently than Havner, asserting that the present litigation is nothing like the infamous Bendectin cases. Quite to the contrary, this case bears many similarities to that significant, trend-setting series of cases. An underlying premise in many toxic tort cases is that the plaintiff has suffered an injury, such as cancer, which may have occurred even if the plaintiff had not been exposed to the substance at issue. So too in this case, the plaintiffs claim that they have suffered an injury, endplate infractions, which may have occurred even if they had never operated the short-nose hauler. Furthermore, and very significantly, just as toxic tort causation (as a practical matter) usually cannot be established by exposing human subjects to the substance in question for testing purposes, direct experimentation cannot be done (or at least has not been done) to prove objectively that use of the short-nose coal hauler causes endplate infractions, and these plaintiffs are therefore left to attempt to prove their case using epidemiological (or, in this case, pseudo-epidemiological) studies. In these respects, the case sub judice is much more akin to a toxic tort case than a traditional personal injury case, and as such, we should not shy away from considering Texas law regarding toxic torts.
125
Because causation cannot be proved directly by the plaintiffs, the only remaining avenue available in tort law for the purpose of proving causation is to demonstrate that their use of the short-nose coal hauler increased their risk of injury. In order to determine causation in these circumstances, the finder of fact must be guided by the "more likely than not" burden of proof.
126
Havner established as a matter of Texas law that the more likely than not burden of proof requires, in order to be probative of causation, that epidemiological studies must demonstrate more than a doubling of the risk of injury.7 The supreme court explained:
127
Although we recognize that there is not a precise fit between science and legal burdens of proof, we are persuaded that properly designed and executed epidemiological studies may be part of the evidence supporting causation in a toxic tort case and that there is a rational basis for relating the requirement that there be more than a "doubling of the risk" ... to the more likely than not burden of proof.
128
Havner, 953 S.W.2d at 717. This same standard of causation applies to the scientific evidence adduced by the plaintiffs in this case. Even though the studies conducted by the plaintiffs' experts are not "epidemiological studies," the plaintiffs' studies seek to accomplish the same objective as an epidemiological study--they attempt to explain the cause of the endplate infractions which their MRI studies show that the plaintiffs experienced. Indeed, the only reason why the plaintiffs' experts' studies are not epidemiological studies is because they were not conducted according to well-established standards for reliably conducting epidemiological inquiries.
129
A scientific study providing indirect scientific evidence of tort causation, standing alone, is not sufficiently probative of legal causation if it does not tend to show that the suspected cause is more likely than not the actual cause of an injury. In other words, such a study is not probative of causation if it fails to demonstrate that the suspected cause doubles the risk of injury as compared to the general population which was not exposed or subjected to the suspected cause.
E.
130
Assuming, arguendo, the admissibility of the plaintiffs' experts' testimony,8 the evidence of causation is insufficient to support a verdict of negligence or strict liability. The key flaw in the plaintiffs' evidence is that it fails to show that the plaintiffs' common injuries and exposure to the Euclid short-nose coal hauler are anything more than a coincidence.
131
Dr. Aprill's "study" revealed endplate infractions in 90% of the TUMCO employees and 68% of the "control group" of back pain patients. Based on this statistical comparison, it is apparent that any given back-pain patient most likely would have had the infractions even though he had not operated a Euclid short-nose hauler.9 Likewise, it is apparent that the risk of endplate infractions in the TUMCO employee test group is not more than twice the risk of endplate infractions in the control group. Plainly then, the statistics produced by the study do not tend to establish the plaintiffs' case. Cf. Havner, 953 S.W.2d at 717.
132
Moving beyond the statistical findings, however, the majority primarily rests its conclusions upon the so-called "fingerprint" of injury characteristics exposed by Dr. Aprill's subjective interpretation of the number and physical distribution throughout the spine of endplate infractions as exhibited in the plaintiffs' MRIs. Unfortunately, this "fingerprint" evidence is completely irrelevant because it bears absolutely no relation whatsoever to the links of causation that the plaintiffs are obligated to demonstrate. The "fingerprints" give us no guidance as to whether the injuries would have occurred if the plaintiffs had operated long-nose coal haulers rather than short-nose coal haulers. Neither do the "fingerprints" demonstrate that the injuries would not have occurred absent exposure to the short-nose coal hauler. There is no proof that the level of vibration produced by the short-nose coal hauler was in any respect significantly different from the level of vibration generated by other heavy earth-moving equipment operated by the plaintiffs.10 In fact, Dr. Aprill conceded that he could not distinguish, based on his study, which of the many pieces of heavy machinery operated by the coal haulers might have been the cause of the endplate infractions. That is so, at least in part, because the study made no attempt to differentiate among its subjects based on their work histories, including what types of equipment the TUMCO employees had operated, and for what periods of time they operated that equipment. Dr. Aprill had no way to eliminate from his study the effects of other sources of vibration.
133
As explained earlier, see supra Part III(B), one of the above mentioned factual scenarios had to be established as a factual predicate to the plaintiffs' recovery.11 Without a tie to the particular injuries experienced by the plaintiffs, the opinions of Dr. Bunch and Dr. Samaratunga shift on their foundations. In essence, these two witnesses confirmed that the Euclid short-nose coal hauler vibrates, that vibrations can cause back injury, and that the plaintiffs who operated the short-nose coal hauler have indeed suffered back injury. They relied on Dr. Aprill's analysis to connect their knowledge about the machine and theories about whole body vibration to the plaintiffs' flesh and blood. Their testimony does not repair the fatal flaw in Dr. Aprill's testimony.
134
The liability experts' opinions that the Euclid short-nose hauler may subject its operators to injury due to prolonged exposure to harmful vibrations suffer from the same variety of logical flaw--they are not linked to the specific injury claimed by the plaintiffs. Messrs. Chaseling and McDonald started with their measurements of the vibrations produced by the short-nose coal hauler. They then compared these findings to recommendations by the ISO concerning what amount of vibration may be acceptable. Having determined that the short-nose coal hauler's level of vibration is unacceptable according to ISO standards, these experts then reasonably opined that exposure to too much vibration can be harmful. All of this information is pertinent to the plaintiffs' claims, but none of it provides the answer to the ultimate question. None of it links the particularized information about the vibrations experienced by the plaintiffs in this case to the types of injuries experienced by the plaintiffs in this case. None of it eliminates other possible sources of vibration as the cause of the plaintiffs' injuries. Their testimony therefore does not permit the inference that the specific injuries claimed by the plaintiffs were caused by the Euclid short-nose coal hauler.
135
Simply put, nothing in the evidence presented by Dr. Aprill or any of the plaintiffs' other experts suggests the required but-for link between the short-nose hauler's vibrations and the incidence of endplate infractions in the plaintiffs' backs. Explained yet another way, even if Dr. Aprill's study demonstrates that the endplate infractions observed in the plaintiffs' backs are more likely than not attributable to some aspect of their occupation (which, as a matter of logic, is all that his studies could possibly demonstrate), the study does not link the Euclid short-nose hauler to the increased incidence of endplate infractions. The study does not distinguish the effects of the Euclid short-nose coal hauler from the effects of any other kind of equipment operated by the plaintiffs. Moreover, a mere "blend" of expert opinions depicting a blurry relation resembling a causative link between Euclid's product and the plaintiffs' injuries is insufficient to support the verdict.12 "Proof of causation cannot turn upon speculation or conjecture." Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996) (internal quotation marks omitted).
136
The plaintiffs showed that they and their coworkers operated the Euclid short-nose coal hauler. The plaintiffs demonstrated that the Euclid short-nose coal haulers vibrate, and that may be a bad thing. Finally, the plaintiffs explained that, in the opinion of Dr. Aprill, they and their coworkers have endplate infractions which appear in their spines in a unique fashion. But the plaintiffs did not establish the crucial logical link--that it was the act of operating the short-nose coal haulers that caused their endplate infractions. That logical lapse should be fatal to their case. Because the plaintiffs have not presented evidence that establishes that operating Euclid short-nose coal haulers was a cause in fact of the plaintiffs' endplate infractions, Euclid should have been granted JMOL.13IV.
137
Euclid unsuccessfully sought to suppress the testimony of the plaintiffs' expert witnesses by challenging their qualifications to present expert opinion. Euclid now challenges on appeal the admission of plaintiffs' experts' testimony. This Court reviews for abuse of discretion. See General Elec. v. Joiner, 522 U.S. 136, ----, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997); Moore v. Ashland Chem. Inc., 151 F.3d 269, 274 (5th Cir.1998) (en banc).
The Federal Rules of Evidence provide:
Rule 702. Testimony by Experts
138
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
139
The Supreme Court's decision in Daubert guides the application of Rule 702. As our Court recently summarized:
140
[W]hen expert testimony is offered, the trial judge must perform a screening function to ensure that the expert's opinion is reliable and relevant to the facts at issue in the case. See Daubert, 509 U.S. at 589, 113 S.Ct. at 2794-95. Daubert went on to make "general observations" intended to guide a district court's evaluation of scientific evidence. The nonexclusive list includes "whether [a theory or technique] can be (and has been) tested," whether it "has been subjected to peer review and publication," the "known or potential rate of error," and the "existence and maintenance of standards controlling the technique's operation," as well as "general acceptance." 509 U.S. at 593-594, 113 S.Ct. at 2796-97.
141
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir.1997).
A.
142
The plaintiffs' experts' opinions that the Euclid short-nose coal hauler caused the plaintiffs' back injuries were inadmissible primarily because the substance of those opinions was not relevant as a matter of law. Rule 702 permits expert opinion testimony only in circumstances in which the opinion "will assist the trier of fact to understand the evidence or to determine a fact in issue." For all of the reasons stated in Part III of this dissent, which explained that the evidence was not sufficient to prove causation, the evidence was furthermore inadmissible under Rule 702 for the same reason. Because the substance of the expert opinion testimony did not tend to prove causation, it was inadmissible as a matter of law because it could not assist the jury. As the Supreme Court explained:
143
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
144
Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 (footnotes omitted, emphasis supplied); see also Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1321 n. 17, 1320-22 (9th Cir.1995) ("Federal judges must therefore exclude proffered scientific evidence under Rules 702 and 403 unless they are convinced that it speaks clearly and directly to an issue in dispute in the case, and that it will not mislead the jury."); Kenneth R. Foster & Peter W. Huber, Judging Science: Scientific Knowledge and the Federal Courts 34-36 (1997); cf. Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307, 311-15 (5th Cir.1989).
145
Without belaboring the point, it should be sufficient to note the well-established requirement, grounded in Rule 702, that there be a "fit" between the opinions offered by an expert and some material issue in the case. If, as in this case, an expert's opinion is based on reasoning which as a matter of law is insufficient to support the expert's conclusion, that opinion should not be admitted into evidence because, as a matter of law, it cannot be helpful to the trier of fact and is therefore inadmissible.B.
146
The plaintiffs' causation experts' testimony that the Euclid short-nose coal hauler caused the plaintiffs' back injuries was also inadmissible because it was not scientifically reliable. In deciding Euclid's Daubert challenge, the district court acknowledged the factors provided by the Supreme Court, and then went on to list factors which it found compelling in this case: the witnesses' credentials; "a body of literature dealing with repetitive trauma back injuries"; the fact that the theories could be tested; and the fact that the "theories are derived from methodology which relates to other accepted methodologies."14 These factors do not adequately ensure the reliability of the experts' opinions.
147
Though the Supreme Court expressly noted that Daubert 's list of factors is nonexclusive, it is certainly significant that the testimony of Dr. Aprill is plainly inadmissible under those original Daubert standards. The district court found that Dr. Aprill's hypothesis could be tested, but none of the other indicia of reliability are present. The theory has not, in fact, been tested. It has not been subjected to peer review or publication. No known or potential rate of error has been provided. There are no standards controlling the technique's operation. There is no suggestion that Dr. Aprill's method is generally accepted.
148
There is a good reason why almost none of the original Daubert criteria are satisfied by Dr. Aprill's methodology. It is that there is an entire field of study devoted to the task which he attempted. "Epidemiology is the field of public health that studies the incidence, distribution, and etiology of disease in human populations and applies the findings to alleviate health problems." Linda A. Bailey et al., Reference Guide on Epidemiology, in Reference Manual on Scientific Evidence 123, 125 (Federal Judicial Center 1994) (emphasis in original). Dr. Aprill did not use epidemiological methodology to come to his conclusions; he generated a study for the purposes of this litigation and offered an opinion about what it shows. This is precisely the sort of ad hoc method of creating testimony that Rule 702 and Daubert exclude.
149
The factors relied upon by the district court essentially lower the Daubert bar. The court cited the witnesses' credentials, but plainly credentials are not enough. The court cited the presence of "a body of literature" dealing with the type of injuries claimed by the plaintiffs, but that factor completely swallows Daubert 's inquiry into peer review and publication. As Euclid points out, by that reasoning expert testimony about space alien abductions would also be admissible. Likewise, the district court's reference to the fact that the plaintiffs' experts' "theories are derived from methodology which relates to other accepted methodologies" simply lowers the standard set by Daubert 's reliance upon "general acceptance."
150
In sum, the factors cited by the district court in support of admitting the testimony of the plaintiffs' experts seriously weaken the standards of Rule 702 and Daubert. It was, therefore, an abuse of discretion to consider these factors and admit the testimony.
V.
151
With respect to all of the original plaintiffs except Mr. Johnny Bartley (who has since settled his claims against Euclid), the claims are barred by limitations unless the discovery rule applies. The jury found that the plaintiffs' injuries were inherently undiscoverable and objectively verifiable. These are the two prerequisites to applying the discovery rule under Texas law. See, e.g., Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998); Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1994).
152
In this case, it is very plain that the plaintiffs' injuries are not what the Supreme Court of Texas considers to be "objectively verifiable." "Expert testimony ... d[oes] not supply the objective verification of wrong and injury necessary for application of the discovery rule." S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996). Objective verification is a "higher level of certainty" than the mere preponderance of evidence required to find liability. Cf. id. at 19. For example, a sponge left inside a person by a surgeon is objectively verifiable. See Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). In the context of a charge of sexual abuse that was "discovered" after the alleged victim recovered repressed childhood memories, the Supreme Court listed the kinds of evidence that would qualify as objectively verifiable:
153
The kinds of evidence that would suffice would be a confession by the abuser, e.g. Meiers-Post v. Schafer, 170 Mich.App. 174, 427 N.W.2d 606, 610 (1988); a criminal conviction, e.g. Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18, 24-25 (1990); contemporaneous records or written statements of the abuser such as diaries or letters; medical records of the person abused showing contemporaneous physical injury resulting from the abuse; photographs or recordings of the abuse; an objective eyewitness's account; and the like. Such evidence would provide sufficient objective verification of abuse, even if it occurred years before suit was brought, to warrant application of the discovery rule.
154
S.V., 933 S.W.2d at 15.
155
Here, as in Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977), "[e]ven the fact of injury is a matter of expert testimony." Robinson, 550 S.W.2d at 21 (quoted with approval in S.V., 933 S.W.2d at 7). There was dispute among the experts at trial as to whether there is even such a thing as an "endplate infraction." The following dialogue occurred when Euclid cross-examined Dr. Aprill at trial about his interpretations of the plaintiffs' MRI scans:
156
Q Now, sir, isn't it true that the vast majority of the articles that either you've written alone or with other people, that the vast majority of these articles have two radiologists, or at least two radiologists, to look over the same scans that are the subject of those articles in order to see if the radiologists agree with the interpretations?
157
A No, that is not true.
158
Q Well, sir, do you think that there's a problem or that there's something wrong about having work checked over to see if your interpretation of an MRI is the same as somebody else's?
159
A No, I don't.
160
Q Have you had a radiologist, other than yourself, look over your interpretations of these MRIs in order to see if they agree with what you said?
161
A No, I have not.
162
Q But radiologists other than you have reviewed these MRIs, have they not, sir?
163
A I don't know.
164
Q Have you not seen the reports done by Dr. Gallman, the chief of radiology at Schumpert Hospital, concerning your interpretation of these MRIs?
165
A I saw his review of the interpretation of five of the MRIs. There are 165 scans done, and I think he commented on five.
166
Q We are talking about the five Plaintiffs in this case, he commented upon those, did he not?
167
A Yes. Yes, he did.
168
Q And he disagreed with many of the things you said, did he not sir?
169
A Yes, he did.
170
Q And he disagreed with the importance that you placed on some of the things that you found, did he not, sir?
171
A Yes, he did.
172
Q And he disagreed with your opinions in this case, did he not?
173
A Yes, he did.
174
Q Would you agree with me, sir, that different radiologists have different styles interpreting MRIs?
175
A Yes, they do.
176
Q I want to show you a statement out of the "New England Journal of Medicine" ... and ask if you agree with this.... "This new study is also a reminder that the interpretation of MRI findings can vary substantially so that the results may be equivocal despite the techniques or of infallibility. Thus, for example, Jensen, et al found that one expert neuroradiologist was 30 percent more likely to interpret a study as showing a disc protrusion than a second expert neuroradiologist reading the same films. This variation, although no worse than that for many other complex, clinical tests requiring expert interpretation, creates further opportunities for erroneous clinical decisions." Would you agree with that?
177
A Yes.
178
Q Some radiologists think certain things are abnormal and some don't, is that fair to say?
179
A Yes. Yes.
180
Q And there are a number of things that you claim are abnormal on the MRIs of these Plaintiffs here which other doctors do not think are abnormal; isn't that right, sir?
181
A I don't know that for a fact. The only person that I know that has commented on them is the doctor that you mentioned.
182
The point was illuminated when Euclid presented its case. A hospital's chief radiologist presented as an expert witness, Dr. William H. Gallman, III, had reviewed the plaintiffs' MRIs. He testified that there was absolutely nothing unique or abnormal about them. He further commented that although his practice involved daily reviews and interpretations of MRIs, he had never seen or heard the term "endplate infraction," none of his colleagues had seen or heard it, and he believed that Dr. Aprill had fabricated the concept for the purpose of this litigation. The phenomenon referred to by Dr. Aprill as an endplate infraction is, in the opinion of Dr. Gallman, "extremely common," having "no significance" and seen "every day on multiple studies of different patients of all walks of life." Another of Euclid's experts, Dr. Malcolm Pope, distinguished professor in the Departments of Biomedical Engineering, Orthopedic Surgery, Preventative Medicine, and Mechanical Engineering at the University of Iowa, testified that endplate infractions are "not a widely accepted abnormality" and that "[s]ome radiologists would not even report it."
183
Where even the fact of injury is disputed, and contested expert testimony provides the only explanation for the cause of that injury, it is impossible to conclude that the injury is "objectively verifiable." The discovery rule is an exception to Texas statutes which otherwise limit the period of time in which plaintiffs may seek redress for injuries. The Supreme Court of Texas has made it clear that the discovery rule is not justified in cases where the injury cannot be demonstrated by clear physical evidence. The plaintiffs' claims in this case are time-barred because they do not meet that high prerequisite to the application of the discovery rule.
VI.
184
For the foregoing reasons, the judgment of the district court should be reversed and judgment should be rendered in favor of Euclid. Accordingly, I dissent from the panel majority's contrary conclusion.
1
John Bartley advised this court that he has settled his claim and withdrawn his appeal
2
Euclid's long-nosed coal hauler is model 208 LDT
3
Euclid's short-nosed coal hauler is model 322 NDT
4
In January 1997, when the district court ruled on this motion, the Fifth Circuit had not squarely addressed whether Daubert applied to "non-scientific" expert testimony. The district court noted that uncertainty, but found it to be of no consequence to the determination of the motion, because all of the experts satisfied the requirements of Daubert. The subsequent decision in Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir.1997), holding that Daubert is not limited to "scientific knowledge," is therefore satisfied by the district court's analysis
5
The district court instructed the jury that all claims in this case must be established by a preponderance of the evidence, which "means evidence that persuades you that the plaintiffs' claims are more likely true than not true." Charge to the Jury, at 11. Neither party challenges the district court's articulation of the applicable burden of proof
6
Euclid points out that the ISO standards are not laws nor regulations, but are voluntary consensus standards for evaluation. Therefore, they contend, without specifically challenging the admission of evidence concerning ISO standards, that their failure to comply with the standards is not relevant to the issues in this case. However, evidence concerning ISO standards was before the jury, and we conclude that such evidence was relevant and the jury was free to assign whatever weight to the evidence that they determined was appropriate
7
John Stoneman, the managing director of Morgan Equipment Company, the Euclid dealer that sold the short-nosed hauler to the Australian mine, testified concerning the lengthy history of attempts by both Morgan and Euclid to determine the cause of and to remedy the ride problems in the Australian hauler
8
Producing cause requires a lesser burden than proximate cause because it does not require foreseeability. Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 935 (Tex.Civ.App.--Texarkana 1997, writ denied)
9
Havner amounts to the Texas Supreme Court's definition of "more likely than not burden of proof." See Havner, 953 S.W.2d at 717. Arguably, the definition of the applicable burden of proof is procedural rather than substantive, and therefore controlled by federal rather than state law. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)(noting that classification of a law as "substantive" or "procedural" is "sometimes a challenging endeavor.") The Fifth Circuit has not weighed in on the question of whether evidence must show more than doubling of the risk to support a jury's finding of causation. The federal circuits which have considered the question have reached diverse results. See Havner, 953 S.W.2d at 716 (listing cases demonstrating the split). The parties neither briefed nor argued the issue, and it is not outcome determinative in this case. Therefore, we decline to reach it
10
This issue is referred to in the record and in much of the precedential jurisprudence as "contributory negligence" or "comparative responsibility." Texas law was modified in 1995 to its present form which refers to the same concept as "Proportionate Responsibility." See TEX.CIV.PRAC. & REM.CODE ANN., Ch.33
11
Question No. 4. For each person or product found by you to have caused the injury, find the percentage caused by
b. Chris Luker 30
Euclid, Inc. 70 ...
c. Mike Rucker 70
Euclid, Inc. 30 ...
d. Walter Henry 50
Euclid, Inc. 50 ...
e. Tim Humber 40
Euclid, Inc. 60....
1
Euclid vigorously contests the probity of conclusions based on testing of a single hauler in Australia almost 20 years ago. Euclid contends that the haulers sent to Australia were specially modified to the customer's specifications. The company has also conceded that the hauler sent to Australia may have been a lemon
2
The ISO standards are not binding on Euclid, and Euclid contests the probity of using these standards
3
Plaintiff Johnny W. Bartley testified:
[T]here were several jobs that a hauler operator would perform in hauler operator classification, of course, one being operate the hauler, another being to run the crusher, run the water truck and assorted pump duties, the dewatering type job whereupon rains you would pump water out of the pit to help dry it up. You were kind of a do-all individual.
All the other plaintiffs except Mike R. Rucker testified that they operated the same machines described by Mr. Bartley, as well as a bulldozer. Mr. Rucker had only begun driving the coal hauler for TUMCO in late 1990 or early 1991, and he testified that in addition to the coal hauler he also operated the water truck, end-dump truck, and a backhoe. During previous employment, Mr. Rucker had been a manual laborer, had operated other heavy machinery, such as a forklift, and had injured his back on the job.
4
As the Texas Supreme Court neatly summarized:
Negligence requires a showing of proximate cause, while producing cause is the test in strict liability. Proximate and producing cause differ in that foreseeability is an element of proximate cause, but not of producing cause. Proximate cause consists of both cause in fact and foreseeability. Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. A producing cause is "an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any." Common to both proximate and producing cause is causation in fact, including the requirement that the defendant's conduct or product be a substantial factor in bringing about the plaintiff's injuries.
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995) (emphasis supplied, citations omitted).
5
Strictly speaking, the "substantial factor" inquiry is probative only in the event that "two causes concur to bring about an event, and either one of them operating alone, would have been sufficient to cause the identical result." Prosser & Keeton, supra, § 41, at 266. The plaintiffs have not argued that the Euclid short-nose coal hauler is one of several factors which would have independently caused their injuries, so we need not consider whether these facts fall into that special subset of cases
6
"In Texas, section 402A of the Restatement (Second) of Torts governs claims for strict liability in tort." American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex.1997) (citing Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex.1996); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-89 (Tex.1967)). According to that rule:
(1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Restatement (Second) of Torts § 402A (1965). "A product may be unreasonably dangerous because of a defect in marketing, design, or manufacturing." Grinnell, 951 S.W.2d at 426.
7
Of course, Havner does not purport to require that, and we need not consider whether, epidemiological standards must be used be used to indirectly prove tort causation with scientific medical opinion testimony. It is certainly worthy of note, however, that this Court has previously stated: "While we do not hold that epidemiologic proof is a necessary element in all toxic tort cases, it is certainly a very important element." Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307, 313 (5th Cir.1989)
8
For reasons explained later, the expert opinions were not admissible. See infra Part IV
9
The panel majority refers to Minnesota Mining & Manufacturing Co. v. Atterbury, No. 06-97-00099-CV (Tex.App.--Texarkana July 31, 1998, n.p.h.) (not designated for publication), 1998 WL 436916 (hereinafter, 3M ), for the propositions that there is "no requirement that a party must have reliable epidemiological evidence of a relative risk of 2.0 or greater" and that "[r]eliable evidence of relative risk less than 2.0 can be considered, but must be supported by other credible, reliable evidence of causation." Majority Op. at Part IV(c) (citing 3M, 1998 WL 436916, at * 15). It is certainly true that the court in Havner did not impose a requirement that epidemiological evidence be used to prove causation, but that does not mean that epidemiological evidence that does not show a doubling of the risk may be used or that such evidence will support a jury's verdict
The 3M Court relied on Pick v. American Medical Sys., Inc., 958 F.Supp. 1151 (E.D.La.1997), for the proposition that "epidemiological evidence with a relative risk lower than 2.0 should be considered because ... it is relevant evidence." 3M, 978 S.W.2d at 197, 1998 WL 436916, at * 15. Several things should be noted about the Pick opinion. First, Pick is the opinion of a federal district court in Louisiana, applying Louisiana law to a products liability and negligence case arising from a claim that Mr. Pick's penile implant, designed and manufactured by the defendant, caused Mr. Pick to suffer from various health disorders which led to his eventual death. Our task in deciding diversity cases is to apply state law in the same fashion as we can best discern that the state supreme court would apply it. Although in deciding 3M the Texarkana Court of Appeals relied on a decision of the United States District Court for the Eastern District of Louisiana, Pick, to inform its interpretation of an opinion of the Supreme Court of Texas, Havner, I am not persuaded that the Supreme Court of Texas would follow the same path. Second, Pick refers only to the admissibility of epidemiological evidence of relative risk above 1.0, not whether such evidence will support a jury verdict imposing liability. See Pick, 958 F.Supp. at 1160. In fact, the court in Pick granted summary judgment for the defendant based on the inadequacy of the plaintiffs' evidence to prove causation, and the plaintiffs' evidence in that case was not limited to epidemiological evidence. See id. at 1173.
10
Experts for Euclid, on the other hand, did test the other machines and found that, assuming that the vibration of these machines was a concern at all, other machines such as the bulldozer and the scraper presented a much greater concern for the operators than did the short-nose coal hauler. For the apparent purpose of demonstrating to the jury that the vibrations were not a serious concern, Euclid's experts also compared the short-nose coal hauler's vibrations to those generated by a Corvette and a Suburban driven around the courthouse square
11
An alternative, more formal logical explanation for the problem presented by this case may be that Dr. Aprill's reasoning suffers from the "fallacy of post-hoc statistics," which occurs when "[d]ifferences that are discovered by accident then become the verification of an ad-hoc hypothesis that was the result of the observation." Kenneth R. Foster & Peter W. Huber, Judging Science: Scientific Knowledge and the Federal Courts 143 (1997) (quoting Petr Skrabanek & James McCormick, Follies and Fallacies in Medicine (1990)). Dr. Aprill conducted his tests in 1995; Messrs. Chaseling and McDonald were summoned to Texas in 1996. It appears that the vibration theory was developed to support Dr. Aprill's analysis of the MRIs. "This is fallacious because it confuses pre- and post-test probabilities." Id. (quoting Skrabanek & McCormick, supra )
12
This is a fair characterization of the testimony given by Dr. Samaratunga, who essentially provided an "expert" summarization of previously admitted expert testimony, apparently for the purpose of bridging the gaps and creating an illusion of logical cohesion
13
The panel majority is absolutely correct in its statement of law that if an "act actively aids in producing an injury, it need not be the sole cause, but it might be a concurring cause, and such as might reasonably be contemplated as contributing to the result." Majority Op. at Part IV(c) (citing McClure v. Allied Stores, Inc., 608 S.W.2d 901, 904 (Tex.1980)). The fact that there may be multiple causes in fact for any given injury does not, however, eradicate the requirement of proving but-for causation in this case
14
These supplemental factors were derived from United States v. Downing, 753 F.2d 1224 (3d Cir.1985), a pre-Daubert decision
|
621 So.2d 258 (1993)
Brad BROADUS, d/b/a Grand Bay Construction Company
v.
ESSEX INSURANCE COMPANY, et al.
1910936.
Supreme Court of Alabama.
May 14, 1993.
*259 Andrew T. Citrin and Richard Bounds of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.
William H. Hardie and Lawrence J. Seiter of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for Essex Ins. Co.
A. Danner Frazer, Jr. of Frazer, Greene, Philpot & Upchurch, Mobile, for Ins. House.
HOUSTON, Justice.
The plaintiff, Brad Broadus, d/b/a Grand Bay Construction Company ("Broadus"), appeals from a summary judgment for the defendants, The Insurance House and Essex Insurance Company ("Essex"). We affirm.
The following material facts are undisputed: Broadus contacted his insurance agent, Jim Van Antwerp, and requested that he procure certain coverage for Broadus's company. Van Antwerp, who owns an independent retail insurance agency and does business with many insurance companies and brokers, contacted The Insurance House. The Insurance House, an independent wholesale insurance broker that assists agents, such as Van Antwerp, in finding insurance companies that provide the kind of coverage needed by the agent's customers, then contacted Essex, which agreed to provide coverage for Broadus. The sole function of The Insurance House with regard to this transaction was to act as an intermediary between Van Antwerp and Essex. The Insurance House obtained information from Van Antwerp concerning the kind of coverage that Broadus wanted and relayed it to Essex. Essex then informed Van Antwerp, through The Insurance House, that it would issue a policy to Broadus on certain terms. Van Antwerp relayed that information to Broadus, who agreed to accept the coverage. Van Antwerp collected the premium, deducted his commission from it, and forwarded the remainder to The Insurance House. The Insurance House, which had the limited authority to bind the coverage under the terms set by Essex, deducted its commission from the amount that it received from Van Antwerp and sent the balance of the *260 premium to Essex. During the term of the policy, The Insurance House continued in its role as an intermediary between Van Antwerp and Essex, passing information back and forth. The Insurance House is not an insurance company and it had no direct contact with Broadus. Van Antwerp was not employed by The Insurance House as a soliciting agent; he served, instead, as an agent for Broadus.
After Essex denied a claim filed by Broadus, based on an exclusion contained in the policy, Broadus sued Van Antwerp; Van Antwerp's agency; The Insurance House; and Essex, seeking damages for breach of contract, fraud, and bad faith refusal to pay an insurance claim. The trial court entered a summary judgment for The Insurance House and Essex and certified that judgment as final, pursuant to Rule 54(b), Ala.R.Civ.P. Broadus's claims against Van Antwerp and his agency remain pending below.
The summary judgment was proper in this case if there was no genuine issue of material fact and The Insurance House and Essex were entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. The burden was on The Insurance House and Essex to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Broadus to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to Broadus and must resolve all reasonable doubts against The Insurance House and Essex. Knight v. Alabama Power Co., 580 So.2d 576 (Ala. 1991). Because this case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12.
After carefully studying the record and the briefs in this case, we conclude that the summary judgment was proper. Broadus's "theory of the case" is basically this: The Insurance House, he says, exercised or reserved the right to exercise control over the manner in which Van Antwerp ran his agency, and therefore is vicariously liable under the doctrine of respondeat superior for any misrepresentations that Van Antwerp may have made to Broadus concerning the extent of coverage under the Essex policy.[1] In turn, the theory goes, Essex is liable under general agency law because, according to Broadus, The Insurance House dealt with Van Antwerp as Essex's general agent. The basic problem with this theory, as the trial court found, is that it has no evidentiary support. Whether Van Antwerp had an agency relationship with The Insurance House when he dealt with Broadus so that The Insurance House could be vicariously liable for Van Antwerp's actions depends on whether The Insurance House reserved the right to control the manner in which Van Antwerp ran his agency. Land & Associates, Inc. v. Simmons, 562 So.2d 140 (Ala.1989). The record shows that The Insurance House had no right to, and did not, control Van Antwerp. Van Antwerp acted at all times as an independent insurance agent or broker on behalf of Broadus. The Insurance House acted as an independent wholesale insurance broker, passing information upon request between Van Antwerp and Essex. As we stated in Land & Associates, Inc. v. Simmons, supra, at 144, "the right to determine if an alleged agent is conforming to the requirements of a contract does not, in itself, establish control." Van Antwerp and The Insurance House merely cooperated with each other so as to secure insurance coverage for Broadus. By passing information between Essex and Van Antwerp and performing certain administrative duties in connection with the policy on behalf of Essex, The Insurance House did not create the kind of relationship with Van Antwerp that would subject it to liability under the doctrine of respondeat superior.
*261 When an independent agent or broker, such as Van Antwerp, fails to procure insurance coverage for his principal (here Broadus), the principal may sue either for a breach of contract or in tort. See Washington National Ins. Co. v. Strickland, 491 So.2d 872 (Ala.1985). As previously noted, Broadus's claims against Van Antwerp remain pending below. However, based on the undisputed facts in the present case and because Van Antwerp and The Insurance House acted independently of each other, The Insurance House is not liable for fraud under the doctrine of respondeat superior. It follows, of course, that Essex cannot be liable under Broadus's theory of the case if The Insurance House is not liable. Therefore, we need not determine whether The Insurance House was a general agent for Essex. The judgment is due to be affirmed on the authority of Land & Associates, Inc. v. Simmons and Washington National Ins. Co. v. Strickland.
AFFIRMED.
MADDOX, ADAMS, STEAGALL and INGRAM, JJ., concur.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., dissent.
KENNEDY, Justice (dissenting).
I respectfully dissent, and, in explaining my reasons for dissenting, I think it helpful to discuss the facts of this case in additional detail.
The record indicates that in November 1986, Broadus approached Van Antwerp about procuring insurance coverage for Broadus's construction business. Broadus testified that he stressed in his conversations with Van Antwerp that he wanted "complete and total coverage" for "anything that might happen." According to Broadus, Van Antwerp indicated that he would obtain this type of coverage.
Van Antwerp contacted The Insurance House about locating coverage for Broadus. The Insurance House obtained premium "quotes." These quotes were relayed to Van Antwerp, who relayed them to Broadus. Ultimately, Broadus obtained limited coverage from Essex Insurance Company.
Van Antwerp testified that he never misled Broadus as to the extent of coverage with Essex and that Broadus wanted the cheapest coverage he could get.
In January 1989, while Broadus was engaged in erecting a communications tower, a construction accident resulted in approximately $18,200 damage to the tower.
Essex denied coverage, citing a policy exclusion for damage to property in Broadus's "care, custody and control."
Broadus sued Van Antwerp, The Insurance House, and Essex, averring in pertinent part, that Van Antwerp had misrepresented the extent of coverage with Essex, as an agent of The Insurance House, rendering the Insurance House vicariously liable under the doctrine of respondeat superior. He averred further that The Insurance House's liability rendered Essex liable also, because The Insurance House was, he claimed, a general agent of Essexhe claimed The Insurance House "was Essex." In this regard, Broadus correctly states on appeal that "a general agent `stands in the shoes' of the principal." Washington National Ins. Co. v. Strickland, 491 So.2d 872, 874 (Ala.1985).
As stated by the majority, the trial court entered summary judgments in favor of Essex and the Insurance House.
A summary judgment is improper where there are genuine issues of material fact. Ala.R.Civ.P. 56; Berner v. Caldwell, 543 So.2d 686 (Ala.1989). The burden of establishing the absence of a genuine issue of material fact is on the movant. Id. If the movant makes a prima facie showing that there is no genuine issue of material fact, and that the movant is entitled to a judgment as a matter of law, then the burden shifts to the nonmovant, who must rebut this showing by "substantial evidence" creating a genuine issue of material fact. Id. In determining whether a nonmovant has produced substantial evidence, the Court must view the evidence in a light most favorable to the nonmovant, resolving all reasonable doubts in the nonmovant's favor. *262 Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986).
In my view, Broadus presented, in rebuttal to the defendants' prima facie showing, substantial evidence in support of his claim that Van Antwerp was an agent of The Insurance House and substantial evidence that The Insurance House was a general agent of Essex.
As to whether Van Antwerp was an agent of The Insurance House, I note that "[t]he test to be applied in determining the existence of an agency relationship under the doctrine of respondeat superior is whether the alleged principal reserved a right of control over the manner of the alleged agent's performance," Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921, 923 (Ala.1988), whether that right is "exercised or not." Joseph Land & Co. v. Gresham, 603 So.2d 923 (Ala.1992).
Broadus argues that he presented substantial evidence that Van Antwerp was a soliciting agent of The Insurance House. A "soliciting agent" is an agent with limited authority to act for the principal. Land & Associates, Inc. v. Simmons, 562 So.2d 140, 144 (Ala.1989). This Court has stated that "[s]ince a soliciting agent is regarded as the `servant' of the insurer `master,' the insurer has the full right of control over the agent's actions." Id., quoting Strickland, 491 So.2d at 875.
In this regard, the record indicates that The Insurance House frequently directed Van Antwerp in his activities relating to Broadus. For example, Carol Freeman, of The Insurance House, instructed Van Antwerp to provide her with Broadus's correct payroll, to perform a loss history on Broadus, to supply her with financial audit information, and to verify the figures on payroll information already submitted. She also directed him to do the following: "Please have the enclosed application completed and signed by the insured on or before March 15, 1989. Please be sure to indicate a complete description of operations, including maximum heights." In another communication she wrote: "Please rush renewal applications to megive me a list of the jobs done this past year, including a description of the job, plus contract costs. Please get [it] to me ASAP...." Also, in a memo marked "IMPORTANT," The Insurance House wrote to Van Antwerp: "It is essential that the enclosed endorsement be signed by the insured no later that 6/87 to avoid cancellation of the policy."
Viewing the evidence most favorably to Broadus, one could reasonably infer that The Insurance House retained a right of control over the manner of Van Antwerp's performance. It is notable in this regard that the record indicates a pattern by Van Antwerp of acting only after receiving specific instructions or approval from The Insurance House.
In my view, one might also reasonably infer that The Insurance House was a general agent of Essex.
"A `general agent' is one who has authority to transact all of the business of the principal, of a particular kind, or in a particular case. [Citation omitted.] The powers of such an agent are coextensive with the business entrusted to his care, authorizing him to act for the principal in all matters coming within the usual and ordinary scope and character of such business.... Since a general agent's powers are coextensive with the business entrusted to him, his fraudulent act is the fraudulent act of his insurer principal as well."
Strickland, 491 So.2d at 874.
Van Antwerp testified that he had no direct dealings with Essex, but worked through The Insurance House. The evidence indicates that Essex empowered The Insurance House to prepare and to issue the Broadus policy. The evidence also indicates that The Insurance House, in Essex's stead, sought remittance for the coverage and also conducted all communications with Van Antwerp relating to the Essex policy. Van Antwerp testified that he never spoke with anyone from Essex.
The Court stated in American States Ins. Co. v. C.F. Halstead Developers, Inc., 588 So.2d 870, 872-73 (Ala.1991), "An agent, by definition, is a `person authorized by another [principal] to act for or in place *263 of him.'" (Quoting Black's Law Dictionary 63 (6th ed. 1990)). It appears from the record that Essex so empowered The Insurance House in this case. The evidence certainly permits one to reasonably infer that The Insurance House had the "authority to transact all of the business of [Essex], of a particular kind." Strickland, 491 So.2d at 874. Such authority is the authority of a general agent.
Also, I note Van Antwerp's testimony that the Insurance House was a "general agent" and documentation listing The Insurance House as the "general agent" of Essex. Although this evidence would properly be ruled inadmissible, no objection to its consideration in opposition to the summary judgment motion was raised in the trial court. Thus, any objection to the Court's consideration of it is waived. McMillian v. Wallis, 567 So.2d 1199, 1205 (Ala.1990).
"The existence and scope of a principal-agent relationship [are] normally [questions] of fact to be determined by the jury." Continental Elec. Co. v. American Employers' Ins. Co., 518 So.2d 83, 87 (Ala. 1987). In my view, this case presents such questions.
SHORES, J., concurs.
NOTES
[1] Broadus does not argue that the summary judgment was improper with respect to his breach of contract and bad faith claims. Therefore, our review is limited to the only issue presented on appealwhether the summary judgment was proper as to the fraud claim.
|
159 B.R. 117 (1993)
In re BRANIFF INTERNATIONAL AIRLINES, INC., Debtor.
BRANIFF INTERNATIONAL AIRLINES, INC., Plaintiff,
v.
AERON AVIATION RESOURCES HOLDINGS II, INC., Defendant-Counterclaimant.
No. CV 92-2540 (ADS).
United States District Court, E.D. New York.
September 30, 1993.
*118 Fisher & Fisher, Brooklyn, NY, for plaintiff.
Winthrop, Stimson, Putnam & Roberts, New York City (Robert S. DeLeon, Leo T. Crowley, of counsel), for defendant-counterclaimant.
Hughes, Hubbard & Reed, New York City (David W. Wiltenburg, of counsel), for Chapter 11 Trustee.
MEMORANDUM DECISION AND ORDER
SPATT, District Judge.
This case is a lamentable reminder of the unfortunate state of affairs in the airline industry in recent years. Founded in Oklahoma City in 1928, Braniff was once among the nation's largest air carriers.[1] However, Braniff filed a voluntary petition for relief under Chapter 11 on August 7, 1991, prior to this lawsuit, in what many have attributed as the aftermath of deregulation in the early 1980s.
This action was filed post-petition and involves certain leasing agreements which Braniff entered into with the defendant aviation company to help keep its business viable. The five aircraft at issue had been previously operated by Eastern Airlines in Eastern's final days. The defendant now moves to withdraw the automatic reference made by the District Court to the Bankruptcy Court and also seeks summary judgment on the amended complaint as well as its counterclaims.
I. FACTUAL BACKGROUND
A. Jurisdiction and Parties
The plaintiff Braniff International Airlines, Inc., ("Braniff") brought this diversity case pursuant to 28 U.S.C. § 1132(a)(2) based upon the purported breach of certain *119 aircraft lease agreements by the defendant Aeron Aviation Resources Holding II, Inc. ("Aeron"). Braniff is a Texas corporation with its principal place of business in Dallas, Texas. Aeron is a New York corporation engaged in the sale and leasing of commercial aircraft whose principal place of business is in Great Neck, New York.
B. The Amended Complaint
The complaint in this case was filed on May 29, 1992 and an amended complaint was served on June 3, 1992. According to the plaintiff, in the ordinary course of its business, beginning in January and continuing through March, 1992, and following arms-length negotiations between the parties, Braniff as Lessee and Aeron as Lessor entered into lease agreements for five air-frames and corresponding engines. The five leases were substantively identical and provided for, among other things, Braniff's use of the aircraft for a period of twenty-six months.
The leases set forth that the Aircraft were leased to Braniff "as is" and Braniff was permitted to inspect each of the aircraft and to conduct a 60-minute test flight before delivery. Braniff inspected the aircraft and took delivery on the dates of the respective leases and operated the aircraft in regular commercial service thereafter.
One of the lease terms extensively negotiated by the parties was a requirement that Aeron install a Traffic Alert and Collision Avoidance System ("TCAS") on each aircraft to help prevent mid-air collisions. The defendant was also to install a Windshear Warning System ("WWS") on each plane to detect windshear a phenomenon in which two adjoining layers of air move in opposite directions, which creates a risk that aircraft passing through the two layers will become destabilized. TCAS and WWS are separate and distinct systems requiring separate wiring and installation work.
According to Braniff, the leases stated that the installation of the TCAS was the express obligation of Aeron, and Aeron was entitled to use and apply Braniff's $100,000 security deposit per aircraft to purchase and install this equipment. The leases contained a specific section requiring Braniff to pay Aeron "Basic Rent" of $75,000 per month for the term of the lease, as well as a monthly "Maintenance Reserve" equal to $250 times the number of hours flown. The "First Basic Rent Date" was defined in the first four of the five leases as follows:
"fourteen (14) calendar days following the day on which substantial completion of the installation of the TCAS windshear warning system ("TCAS") is accomplished. TCAS is to be installed on the Aircraft immediately after delivery thereof to Lessee."
"Basic Rent Dates" thereafter would occur on "the same day of each successive calendar month during the Term as occurred the First Basic Rent Date," unless otherwise agreed by the parties (Ben-Yosef Affidavit, Exhibits A-E, p. C-1). According to Braniff, because of Aeron's fraud, only four of the five leases contain the negotiated and agreed upon definition of "First Basic Rent Date."
Braniff claims that Aeron fraudulently modified the fifth lease. On March 18, 1992, Aeron transmitted by facsimile to Braniff the signature page from the fifth lease, dated March 14, 1993, representing to Braniff that because the fifth lease was substantively identical to the other four leases, Aeron did not need to immediately forward the fifth lease in its entirety to Braniff. Counsel for Braniff asserts the following with regard to that fifth lease:
"11. Said material representations were false when made and made for the purpose of inducing Braniff to blindly execute the signature page of that Lease so as to enable Aeron to alter, delete and/or deviate from the parties' agreed upon terms.
* * * * * *
13. In reliance upon Aeron's false representations that the March 14, 1992 Lease and its exhibits were identical to the prior four Leases, Braniff executed the signature page, returned it to Aeron *120 and accepted the untimely delivery of aircraft N8859E-BN407.
14. Upon information and belief, Aeron, having realized that it could not expeditiously obtain and install all of the TCAS components for all of the aircraft, which was a precondition required to trigger the agreed upon First Basic Rent Date, intentionally and fraudulently altered and deleted the agreed upon condition precedent requiring Aeron to substantially install the TCAS so as to trigger the First Basic Rent Date set forth in Exhibit "C" in the March 14, 1992 Lease."
In the fifth lease, the "First Basic Rent Date" was defined as "March 27, 1992."
According to the defendant, the First Basic Rent Date provision for the first four leases was written to accommodate Braniff's request for a grace period between the date of delivery and the date it would make its first Basic Rent payment. Braniff purportedly claimed that it needed time to paint and otherwise reconfigure the four Aircraft before it could put them into commercial service, and needed some rent-free time at the beginning of the lease term to accomplish this. Aeron also states that Braniff wished to have TCAS in the first four aircraft since Federal Aviation Administration regulations require that at least half an air carrier's fleet be so equipped.
After negotiations, the parties settled on a fourteen day grace period at the outset of the lease term. Braniff paid $450,000 in Basic Rent to Aeron under the leases between early February and mid-April, 1992. During that time, Aeron sent Braniff invoices for Basic Rent and Maintenance Reserves and Braniff paid the amounts specified.
As of the date the complaint was filed, Braniff states that the required TCAS had been installed in only one of the leased aircraft, and that system was not even operational. Consequently, Braniff claimed that the system was not "substantially complete" and adds that there have been partial installations which do not constitute "substantial completion" in accordance with the express terms of the leases. Braniff therefore contends that the condition precedent to making payment of Basic Rent has not yet occurred, despite the fact that Aeron, without contractual or other legal right, served "notice" upon Braniff on May 19, 1992, that it was demanding payment of Basic Rent and Reserves under each of the leases. In addition, Aeron demanded the immediate return of the respective aircraft.
Braniff characterizes these actions as "anticipatory breaches of the leases" and adds that such demands constitute Aeron's repudiation of the express terms and conditions of the leases. According to Braniff, no event of default has occurred, or continues, and Braniff has not waived its right to peaceful and quiet use of the aircraft which are the subject of the leases. The amended complaint also states that if Aeron is permitted to seize the aircraft, Braniff will be irreparably harmed because it will be without a sufficient number of aircraft to conduct its normal scheduling and flights, and will therefore be forced out of business.
Braniff's amended complaint therefore seeks the following relief:
1. a declaratory judgment against Aeron stating that
(a) Braniff was not in default under the five leases and that Exhibit C of the fifth lease is null and void by virtue of Aeron's fraud;
(b) Braniff is entitled to continue to possess and use the aircraft which are the subject of the lease;
(c) payment of the Basic Rent is to commence fourteen calendar days following the day on which substantial completion of the installation of the TCAS is accomplished;
(d) the rent claimed to be due is not due except in an amount and on a date or dates to be fixed and determined by the Court; and
2. an order and judgment awarding Braniff damages in a sum to be determined at trial, but in no event less than $250,000.
*121 C. Answer and Counterclaims
On June 10, 1992, Aeron filed its answer and counterclaim, denying Braniff's allegations and averring that Braniff was in default under the leases. Aeron asserts the following defenses: (1) Braniff agreed in each and every lease that the aircraft would be delivered "as is," "where is," and "subject to each and every disclaimer of representation and warranty as set forth in subsection 5(a)" and that Braniff accepted delivery on that basis; (2) by virtue of accepting delivery, flying the planes repeatedly in commercial operations, deriving revenues from such operations, and paying Aeron Basic Rent and Maintenance Reserve payments, and the FAA having deemed the planes airworthy with full knowledge of the status of the installation of the TCAS and WWS, Braniff has waived any claim that its obligation to pay rent has not yet begun to run; (3) estoppel; (4) unclean hands; (5) laches; (6) substantial compliance triggering the obligation to pay rent; and (7) Aeron is not responsible for any defects or discrepancies found in the aircrafts' ferry flights since Braniff has failed to allege any discrepancies in its amended complaint.
Aeron has also alleged the following four counterclaims:
1. Aeron is entitled to a declaratory judgment that the leases are in full force and effect, and that the First Basic Rent Dates under the leases occurred on February 11, 1992 for lease no. 52; February 11, 1992 for lease no. 56; February 26, 1991 for lease no. 57; February 29, 1992 for lease no. 55; and March 27, 1992 for lease no. 59;
2. Aeron is entitled to a declaratory judgment that Braniff has waived all of its rights to contest its obligations under the leases on the grounds stated on the amended complaint;
3. Braniff breached the terms of the leases by defaulting on its obligations to make Basic Rent and Maintenance Reserve payments, entitling Aeron to damages of at least $1,348,878;
4. Aeron is entitled to an order of replevin requiring Braniff to immediately surrender possession of the aircraft.
On July 10, 1992, United States Bankruptcy Judge Cecilia Goetz entered an order lifting the automatic stay and permitting Aeron to repossess the aircraft from Braniff, which it did in fact accomplish on July 11, 1992.
II. PROCEDURAL SETTING
The defendant-counterclaimant Aeron brings two motions before the Court. The first motion is set forth pursuant to 28 U.S.C. § 157(d) seeking withdrawal in part of the automatic reference made by the District Court to the Bankruptcy Court pursuant to the standing order of the United States District Court for the Eastern District of New York, dated August 28, 1986.
The second motion is asserted pursuant to Fed.R.Civ.P. 56, and seeks the following relief:
(1) summary judgment in favor of Aeron on Braniff's two claims in its amended complaint;
(2) summary judgment in favor of Aeron on its first two counterclaims;
(3) summary judgment on all issues in Aeron's third counterclaim in its favor, except the issue of damages which defendant contends should be referred to the Bankruptcy Court for determination;
(4) an order dismissing as moot Braniff's request for a declaratory judgment that Braniff is entitled to continue to possess and use Aeron's aircraft.
A. Withdrawal of Reference
Braniff filed a voluntary petition for relief under Chapter 11 on August 7, 1991. Pursuant to 11 U.S.C. §§ 1107 and 1108, Braniff has retained possession of its property and is authorized as a debtor in possession to continue the operation and management of its business.
Defendant Aeron seeks withdrawal of the reference to the Bankruptcy Court to the extent necessary to adjudicate fully the *122 claims, counterclaims, and defenses asserted in this District Court action brought by Braniff International Airlines, Inc. According to Aeron, Braniff chose in an atypical fashion to bring this state law contract dispute as a diversity action in the Federal District Court rather than as an adversary proceeding in the Bankruptcy Court.
As a post-petition contract dispute, the defendant maintains that this action is also a core proceeding in Braniff's Chapter 11 case. Since the District Court and the Bankruptcy Court have concurrent jurisdiction over the dispute, Aeron contends that it is in the interest of judicial economy to resolve the dispute fully in one forum. According to Aeron, the automatic referral contemplated by the Eastern District Standing Order is inapplicable because the Debtor selected the District Court as its forum. Since Braniff had its choice and has chosen the District Court, Aeron contends it is estopped from objecting to withdrawal of the reference.
In response, counsel to the Trustee in bankruptcy of the plaintiff Braniff notes that this action was commenced in the District Court by prior management of Braniff, before the Trustee's appointment on August 12, 1992. Because Aeron has repossessed the aircraft, the Trustee argues that the main claim in the amended complaint is moot. He also contends that Aeron's counterclaims are essentially claims in the Braniff bankruptcy and should be resolved in the regular course of bankruptcy claims administration. In his Affidavit, counsel to the Trustee states as follows:
"... The situation which the Trustee inherited upon is appointment was that of a non-operating airline in general disarray following shutdown of flight operations. ... there are no remaining Braniff employees who were personally involved in the Debtor's dealings with Aeron. There is insufficient cash to pay even basic payroll and tax expenses and other necessary expenses relating to preservation of assets and wind-up of the Braniff estate....
5. We have also been informed that Braniff's counsel of record in this case does not wish to continue in the face of the probability that any legal services related to this case will go unpaid...." (Wiltenburg Affidavit).
The Trustee further observes that Aeron may be entitled to an administrative expense priority in bankruptcy to the extent that the leases provided benefit to the Debtor's estate. In fact, Aeron filed an Administrative Proof of Claim for an amount in excess of $10 million on August 14, 1992. The Trustee believes that the counterclaim now before the Court represents a portion of that $10 million.
According to counsel for the Trustee, no discovery has been had and no depositions taken in this case and there is no money in the Estate at this juncture to litigate claims or pay claimants. Counsel for the Trustee also states that the counterclaims are subject to mandatory referral to the Bankruptcy Court and should be adjudicated as a core proceeding in the claims administration process of the Bankruptcy Court.
B. Summary Judgment
Aeron moves, pursuant to Fed.R.Civ.P. 56, for summary judgment dismissing the complaint. It also moves for summary judgment on its first two counterclaims, seeking a declaratory judgment that the leases are in full force and effect and that rents are due and owing as of the respective dates noted, and that Braniff has waived all rights to contest these obligations. With regard to the third counterclaim, Aeron seeks summary judgment holding Braniff in breach of the leases by its alleged default and further seeks to have this Court refer the damages to the Bankruptcy Court for disposition. Finally, Aeron seeks an order dismissing as moot Braniff's request for a declaratory judgment that Braniff is entitled to continued possession and use of the aircraft.
The defendant Aeron claims that Braniff brought this action, having already defaulted on more than $1.3 million in rent payments to Aeron, in order to preempt Aeron from exercising its contractual remedies to *123 address Braniff's defaults. Counsel notes that
"[t]he complaint asserted that Braniff was entitled to use the five aircraft rent-free for months, even while its [sic] was flying each of them nearly three hundred hours per month in regular revenue-generating commercial operations. This argument was based upon an improbable reading of the leases, to the effect that Braniff was not obligated to pay any rent until the installation of certain equipment[,] not essential to the airworthiness and operation of the aircraft[,] was `substantially complete.' ..." (Defendant's Brief, at p. 2).
In support of the summary judgment motion, the defendant has supplied the affidavits of Eldad Ben-Yosef, the President of Aeron, Robert DeLeon, Esq., and Maurice W. Heller, counsel for Aeron as well as the declaration of Lauren B. Nelson, President of Avitas Engineering and Aeron's expert.
Ben-Yosef states that the First Basic Rent Date provision required installation to be "substantially complete," rather than "complete" because manufacturers of the WWS systems were experiencing long backlogs in orders for the plug-in WWS computer module, which was essential to the installation of WWS. According to Ben-Yosef, this presented problems for Jeffrey Chodorow, President of Braniff:
"... the Lease for Aircraft No. 59 included a date certain, March 27, 1992, as the First Basic Rent Date. This was done because Braniff told us that it needed this Aircraft immediately, and could not afford the ground time it would take to perform the installations of TCAS and WWS. Braniff told us that it had sufficient aircraft in its fleet with TCAS and WWS installations that the FAA had accepted, and that the installations for Aircraft 59 could wait until that Aircraft's "C" check in the fall.
16. Thus, after having initially rejected Aircraft No. 59, Braniff reconsidered, and agreed to lease it. Unlike the four others, however, we agreed that no TCAS and WWS work would be done at the outset of the Lease term, and that Braniff would begin to operate the Aircraft immediately after the reconfiguration, painting and other work was completed.
17. Shortly before it shut down its operations, Braniff informed DynAir Avionics, Inc. ("DynAir"), the entity charged with installing WWS and TCAS, that it would not make Aircraft No. 59 available for the installation of TCAS and WWS until sometime in October of 1992, the rescheduled date for the "C" check.... The parties agreed that Braniff would have a 14 day grace period per Aircraft and we by no means intended to allow Braniff to use an Aircraft for one day more than the grace period without payment of Basic Rent."
The parties contemplated that No. 59 would be delivered to Braniff on March 13, 1992, and the fourteen-day grace period was to end on March 27, 1992, the First Basic Rent Date. The aircraft was in fact delivered to Braniff on March 14, 1992.
Aeron's expert, Lauren B. Nelson, states that in her opinion, the installations of the TCAS and WWS were substantially complete as of the following dates:
Aircraft No. 52: January 28, 1992
Aircraft No. 56: January 28, 1992
Aircraft No. 57: February 12, 1992
Aircraft No. 55: February 15, 1992
In letters to the FAA dated January 24 and March 19, 1992, Braniff certified that WWS provisions were installed in these aircraft.
According to Ben-Yosef, Aeron sent invoices to Braniff between early February and mid-April, 1992, and Braniff paid the amounts specified for Basic Rent and Maintenance Reserves. In April, however, Braniff stopped paying rent. Ben-Yosef states that Aeron was becoming increasingly concerned about Braniff's deteriorating financial condition and therefore sent out a notice of default on May 20, 1992. Additional notices of default were sent on June 5 and June 12, 1992.
Although the parties were purportedly in the final stages of drafting settlement documents *124 on May 21, 1992, to the great surprise of Aeron, on May 22, 1992 Braniff's counsel asserted that Braniff was not obligated to pay any rent on the aircraft because Aeron had not substantially completed installation of TCAS and WWS. Braniff also purportedly repudiated any obligation to consummate the negotiated settlement and stated that past payments of Basic Rent to Aeron had been a "mistake." Aeron observes that one month after it initiated this suit, Braniff ceased all operations on July 2, 1992. With permission of the Court, Aeron repossessed the aircraft on July 11, 1992.
Even if the Court agrees with Aeron on contract issues, the Trustee argues that "this will not necessarily resolve the extent of Aeron's entitlement to an administrative expense claim." Counsel maintains that this Court cannot fully adjudicate rights as between Aeron and the Braniff estate, and therefore the claim should remain in the Bankruptcy Court where it can be determined with the claims of all other post-petition creditors.
In the alternative, counsel for the Trustee argues that if Aeron's claims are withdrawn from the Bankruptcy Court, the summary judgment motion should be adjourned and the Trustee granted a continuance without date pursuant to Fed.R.Civ.P. 56(f) to permit affidavits to be obtained or depositions to be taken. Counsel adds that this litigation should be stayed for a period of 120 days to allow for a determination of whether any purpose would be served by proceeding. Further, if the Court decides to reach Aeron's summary judgment motion, counsel for the Trustee contends that the motion must be denied because there are sharp disputes as to the scope, timing and completion of work contemplated under the contracts, and whether there was "substantial completion" of the work.
Conceding that one of the claims against it is now moot, Aeron contends that the Trustee ignores three-quarters of the amended complaint and counterclaims. Specifically, counsel states that Braniff has claims remaining, including: (1) that Braniff does not owe Aeron any rent for the aircraft because Aeron (a) fraudulently modified one of the five aircraft leases and (b) did not substantially complete the TCAS system installations in any of the aircraft; and (2) that Aeron owes Braniff $250,000. Likewise, although Aeron's fourth counterclaim seeking replevin is moot, the three remaining counterclaims are live disputes, ripe for adjudication.
Counsel for Aeron urges the Court to withdraw the reference because "[h]aving decided that its litigation chances were better in District Court, Braniff and its trustee (as its successor) should not be permitted to move back to the Bankruptcy Court after Aeron has expended substantial resources in the District Court litigation. That would be forum shopping and re-shopping of the worst kind" (Defendant-Counterclaimant's Reply Memorandum, at p. 4).
III. THE GOVERNING LAW
A. Withdrawal of Reference to Bankruptcy Court
In the wake of Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), Congress enacted 28 U.S.C. § 1334 which provides that the District Courts shall have original and exclusive jurisdiction of all cases under Title 11. However, a bankruptcy judge is directed pursuant to 28 U.S.C. § 157(b)(1) to hear and determine all cases under Title 11 and all core proceedings arising under Title 11 of the Bankruptcy Code. Therefore, proceedings arising under Title 11 are referred automatically to the United States Bankruptcy Court (28 U.S.C. § 157[a]). Section 157(d) also provides that
"[t]he district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating *125 organization or activities affecting interstate commerce."
Therefore, withdrawal of bankruptcy reference is available if the motion is timely and for cause shown.
B. Rule 56(f)
Rule 56(f) provides as follows:
"(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."
In order to obtain a continuance to permit additional discovery, the proponent seeking the continuance must establish that he was denied reasonable access to material requested and that the material requested constitutes potentially favorable information. In addition, the proponent must identify specific issues to be disclosed if he is granted a reasonable opportunity to pursue additional discovery (Contemporary Mission, Inc. v. New York Times Co., 665 F.Supp. 248 [S.D.N.Y.1987], aff'd, 842 F.2d 612 [2d Cir.], cert. denied, 488 U.S. 856, 109 S.Ct. 145, 102 L.Ed.2d 117 [1988]).
IV. DISCUSSION
A. Withdrawal of the Reference
The Court first notes that the law is clear that the automatic stay does not apply to actions commenced by the debtor, either before or after a bankruptcy (see In re Wengert Transp., Inc., 59 B.R. 226, 228 [Bankr.N.D.Iowa, 1986], citing In re Ruble, 34 B.R. 37 [Bankr.N.D.Ohio 1983]). "When the tables are turned and it is the debtor who is asserting the claim, the policy concerns supporting the stay are no longer relevant. The protections for the debtor under the Bankruptcy Code operate as a shield, not a sword" (Merchants & Farmers Bank of Dumas, Ark. v. Hill, 122 B.R. 539, 546 [E.D.Ark.1990]) (emphasis in the original).
Here, significantly, the debtor chose the forum of the District Court.
"Good cause" is not defined in 28 U.S.C. § 157. Therefore, courts employ a factor analysis to determine whether cause exists. Several courts have listed factors that may be considered in determining a motion for permissive withdrawal under § 157(d). These factors are:
(1) uniformity in bankruptcy administration;
(2) reduction of forum shopping and confusion;
(3) fostering the economical use of debtors' and creditors' resources; and
(4) expediting the bankruptcy process.
See In re Pruitt, 910 F.2d 1160, 1168 (3d Cir.1990), quoting Holland America Ins. Co. v. Succession of Roy, 777 F.2d 992, 999 (5th Cir.1985).
An important factor in determining whether to withdraw reference of a proceeding to the bankruptcy court is whether the claim is a core proceeding (28 U.S.C. § 157). Core proceedings are generally defined as matters arising under Title 11, or arising in a case under Title 11 and which would have no existence outside the bankruptcy case. Diamond Mortgage Corp. of Ill. v. Sugar, (In re Sugar), 913 F.2d 1233 (7th Cir.1990); In re J.T. Moran Financial Corp., 119 B.R. 447, 450 (Bankr.S.D.N.Y. 1990). Core proceedings are matters which govern the administration of the debtor's estate and are proceedings traditionally within the realm of the bankruptcy court's equitable authority.
Courts have held that certain post-petition transactions are matters concerning the administration of the bankruptcy estate within the meaning of 28 U.S.C. § 157(b)(2)(A) and should be treated as core proceedings. Thus, a post-petition contract entered into with the debtor was regarded as a core matter in In re Ben Cooper, Inc., 896 F.2d 1394, 1399 (2d Cir.1990), cert. granted, 497 U.S. 1023, 110 S.Ct. 3269, 111 L.Ed.2d 779, vacated and remanded, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated on remand, 924 F.2d 36 *126 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991), ("post-petition contracts with the debtor-in-possession, therefore, are integral to the estate administration from the date they are entered into").
Similarly, in In re Arnold Print Works, Inc., 815 F.2d 165 (1st Cir.1987), a suit by a debtor to recover the remainder of the purchase price of assets sold after the filing of the petition was held to be a core matter. The Arnold court observed that
Parties who contract with the bankrupt company's trustee or with a debtor-in-possession know that they are dealing with an agent responsible to a bankruptcy court; that the bankruptcy court would resolve subsequent disputes should therefore come as no surprise (815 F.2d at 170).
The defendant does not dispute that the instant case is a core proceeding and it has not asserted any Seventh Amendment right to a jury trial. There is, however, a body of case law supporting defendant's right to a jury trial in a scenario similar to this.
Case law also suggests that if the trial in such cases would be a complicated proceeding, the case should be adjudicated in District Court as opposed to the Bankruptcy Court. In re Leedy Mortgage Company, Inc., 62 B.R. 303 (E.D.Pa.1986) involved a bankruptcy trustee who brought an adversary proceeding against accounting firms and partners, and defendants moved for withdrawal of the reference. The court said that
"[u]nlike the matters concerning the bankruptcy matter, this case could require extensive discovery. The parties in this action will have to study many volumes of written material and depose many individuals. . . . In addition, the parties will have to hire experts. . . . The trial will be lengthy and complex. . . . Also, unlike most bankruptcy proceedings, it will require a jury and extensive examination of documents and witnesses. At the conclusion of the evidence, the court will have to instruct the jury on the law of contract. . . . All this contrasts with that which typically occurs before the bankruptcy court (id. at 306).
Furthermore, in In re Ben Cooper, 896 F.2d 1394 (2d Cir.1990), the debtor in possession commenced an adversary proceeding in the bankruptcy court in relation to a post-petition contract. The court found the proceeding to be within the bankruptcy court's core jurisdiction but further concluded that the defendants in the adversary proceeding were entitled to a jury trial, and granted the request to withdraw the reference.
Where a trustee in bankruptcy has elected to pursue litigation in a forum other than bankruptcy court, he is estopped from requesting a later referral to the bankruptcy court (see 1 Collier on Bankruptcy ¶ 3.01[5][c] (15th Ed.1992) at 3-93). The parties have expended considerable time, energy and expense in bringing this rather voluminous motion for summary judgment. Having considered the above factors, the Court finds that the interest of judicial economy and utilization of resources is best served by adjudicating the rights of the parties in this Court. Therefore, the defendant's motion to withdraw the referral under § 157(d) of the Bankruptcy Code is granted.
B. Rule 56(f)
In light of the confusion surrounding what appears to be the departure of counsel for Braniff in this matter, the subsequent appointment of the Trustee, the closing down of Braniff's operations, and the inability of the Trustee to ascertain the whereabouts at this point of the former employees from whom counsel would need to obtain affidavits, the Court determines in the interest of justice that a continuance is warranted.
The Court further finds that upon review of the Trustee's "Counter-Statement Pursuant to Rule 3(g)," there are significant questions to be resolved in this matter. Several of these involve whether Aeron fulfilled the condition precedent, the mixed question of law and fact concerning "substantial completion" as that issue has been *127 set forth, when precisely Braniff's obligation to pay rent began, whether the form of the lease governing aircraft 59 was fraudulently altered by Aeron, and whether Aeron misrepresented the condition and fitness for use of the aircraft. In light of these findings, the Court grants the Trustee's application for a continuance.
V. CONCLUSION
For the reasons set forth above, the motion by the defendant Aeron pursuant to 28 U.S.C. § 157(d) for withdrawal of the automatic reference to the Bankruptcy Court is granted. Further, the motion by plaintiff Braniff for a declaratory judgment that it is entitled to continue to possess and use Aeron's aircraft is dismissed as moot.
With regard to the summary judgment motion made by Aeron, the Court hereby grants the plaintiff Trustee a continuance of 45 days within which to obtain the necessary affidavits and/or depositions to appropriately respond to the defendant's summary judgment motion on the amended complaint and the counterclaims.
SO ORDERED.
NOTES
[1] See NEWSDAY, July 3, 1992.
|
790 F.2d 92
Landonv.Department of Navy
85-2591
United States Court of Appeals,Federal Circuit.
2/10/86
MSPB, 27 M.S.P.R. 374
Affirmed
|
Dismissed and Majority and Concurring Opinions filed March 17, 2005
Dismissed and Majority and Concurring Opinions filed
March 17, 2005.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00267-CV
____________
SPIRO
NIKOLOUZOS by his wife, JANNETTE NIKOLOUZOS, Appellant
V.
ST. LUKE=S EPISCOPAL HOSPITAL, Appellee
On Appeal from the
189th District Court
Harris County,
Texas
Trial Court Cause No.
05-16058
M A J O R I T Y O P I N I O N
This is an attempted interlocutory appeal from the oral
denial of appellant=s first and second applications for temporary restraining
orders. We dismiss the appeal for want
of jurisdiction.
The underlying action is brought under the
Advance Directives Act,[1]
specifically Texas Health and Safety Code section 166.046(g), which provides a
mechanism to seek a judicial extension of the time period in which to find
alternative treatment for a patient when the hospital has determined that
life-sustaining treatment is inappropriate.
The statute provides:
At the request of the patient or
the person responsible for the health care decisions of the patient, the
appropriate district or county court shall extend the time period provided
under Subsection (e) [10 days after the written decision by the hospital=s ethics committee is provided to
the patient or responsible person] only if the court finds, by a preponderance
of the evidence, that there is a reasonable expectation that a physician or
health care facility that will honor the patient=s directive [regarding
life-sustaining treatment] will be found if the time extension is granted.
Tex. Health & Safety Code
Ann. ' 166.046(g)
(Vernon Supp. 2004-05).
Appellant filed an original petition seeking an extension of
time for continued life support, injunctive relief, and monetary damages. At the same time, appellant filed an
application for a temporary restraining order and temporary injunction. The trial court conducted a hearing on
appellant=s first application for temporary
restraining order on March 9, 2005. At
the conclusion of the hearing, the court orally denied the application. The court permitted appellant to file a
second application for a temporary restraining order, and the court conducted a
hearing on March 11, 2005. The court
again orally denied the application.
Appellant then filed a notice of appeal from the denial of both TRO
applications.
On March 15, 2005, appellee filed a motion to dismiss the
appeal for want of jurisdiction. See
Tex. R. App. P. 42.3(a). Appellee argues that this court lacks
jurisdiction over appellant=s attempted appeal from the denial of temporary restraining
orders in the absence of express statutory authority.
Because appellant sought other relief that remains pending in
the trial court, the rulings appellant seeks to appeal are interlocutory. See North E. I.S.D. v. Aldridge, 400
S.W.2d 893, 895 (Tex. 1966) (noting Ato be final a judgment must dispose
of all issues and parties in a case@).
It is well settled that appellate courts have jurisdiction to consider
immediate appeals of interlocutory orders only if a statute specifically
provides for appellate jurisdiction. Stary
v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). Section 166.046 does not expressly provide a
right to appeal the trial court=s ruling on a request for extension of time for life
sustaining treatment, thus indicating the legislature did not intend to permit
such an appeal. See, e.g., Ex parte
Burr, 139 S.W.3d 446, 448 (Tex. App.CDallas 2004, pet. struck) (holding
that failure to include right to appeal in statute indicated legislature did
not intend to permit appeal from denial of temporary restraining order).
While an interlocutory appeal from the grant or denial of a
temporary injunction is allowed, no statutory provision permits an appeal from
a temporary restraining order.[2] See Lesikar v. Rappeport, 899
S.W.2d 654, 655 (Tex. 1995); Cross Media Network, Inc. v. Sandefer, 2000
WL 1260251, *1 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (not designated for
publication); see also Tex. Civ.
Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2004-05)
(specifically permitting appeal of interlocutory orders in ten instances, but
not including the grant or denial of a temporary restraining order). Thus, the grant or denial of a temporary
restraining order is generally not appealable.
In re Tex. Nat. Res. Conservation Comm=n, 85 S.W.3d 201, 205 (Tex. 2002).
However, the fact that the order is denominated a temporary
restraining order is not determinative of whether the order is appealable. Whether an order is a nonappealable temporary
restraining order or an appealable temporary injunction depends on the order=s characteristics and function, not
its title. Qwest Communications Corp.
v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000). If the force and effect of the order is
indistinguishable from that of a temporary injunction, then the order is
appealable. Plant Process Equip.,
Inc. v. Harris, 579 S.W.2d 53, 54 (Tex. App.CHouston [14th
Dist.] 1979, no writ). The record in this case demonstrates
that the initial relief requested was a temporary restraining order pending a
subsequent hearing on a temporary injunction, and the parties at the hearings
treated them as hearings on applications for temporary restraining orders. No testimony was taken at the hearings. At the conclusion of each hearing, the trial
court denied appellants= applications for temporary restraining orders. Under these facts, the rulings at issue
are denials of temporary restraining orders, not denials of injunctions.
On
March 16, 2005, appellant filed a response to appellee=s motion to dismiss. In support of the court=s exercise of jurisdiction over the
appeal from the denial of temporary restraining orders, appellant cites Lord
v. Clayton, 352 S.W.2d 718, 163 Tex. 62 (1961). In Lord, however, the relators sought
a writ of mandamus to resolve a jurisdictional dispute between two
criminal courts, in which one court had issued an order restraining a habeas
corpus proceeding in the other court. Id.
at 719 (emphasis added). The Texas
Supreme Court recognized that normally mandamus would not issue to interfere
with a trial court=s injunctive orders because, even though a restraining order
is not appealable, any injunction would have been appealable and the parties
would have been required to appeal rather than seek mandamus relief. Id.
The court found that the jurisdictional conflict between the two courts
had reached a point where the public interest and orderly administration of
justice would suffer irreparably unless it resolved the conflict. Id.
Although there is no question that appellant has the most compelling
personal interest at stake, this court lacks the power to exercise jurisdiction
where none is provided by law.
After
having considered the motion and response, we hold that we lack jurisdiction
over this attempted appeal from the denial of temporary restraining
orders. When a party attempts to appeal
a nonappealable interlocutory order, an appellate court has no jurisdiction
except to dismiss the appeal. Lipshy
Motorcars, Inc. v. Sovereign Assocs., Inc., 944 S.W.2d 68, 70 (Tex. App.CDallas 1997, no writ); Harper v.
Welchem, Inc., 799 S.W.2d 492, 496 (Tex. App.CHouston [14th Dist.] 1990, no
writ).
Accordingly,
we grant appellee=s motion, and the appeal is ordered dismissed. This court=s writ of injunction issued March 15,
2005, under our cause number 14-05-00273-CV is dissolved by its own terms.
/s/ Charles Seymore
Justice
Judgment rendered and Majority and
Concurring Opinions filed March 17, 2005.
Before the court en banc. (Fowler, J., concurring).
[1] Tex. Health & Safety Code Ann. '' 166.001B166.166
(Vernon Supp. 2004-05).
[2] AA temporary restraining order is
one entered as part of a motion for a temporary injunction, by which a party is
restrained pending the hearing of the motion.
A temporary injunction is one which operates until dissolved by an
interlocutory order or until the final hearing.@
Del Valle I.S.D. v.
Lopez, 845 S.W.2d 808, 809 (Tex.
1992).
|
Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00301-CV
CITY OF SAN ANTONIO,
Appellant
v.
Gerard CORTES,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-05707
Honorable Laura Salinas, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: April 29, 2015
REVERSED AND RENDERED
The City of San Antonio appeals the trial court’s denial of its motion to abate and to compel
arbitration. We reverse.
BACKGROUND
In his amended petition, Appellee Gerard Cortes, a San Antonio firefighter, alleged that
the current Collective Bargaining Agreement (CBA), which was agreed to by the City and the
Union, sets forth health benefits for active San Antonio firefighters like Cortes. According to
Cortes’s petition, on or about April 2, 2014, he received a letter from his fire chief that described
04-14-00301-CV
a “dependent verification process” conducted by the City in order “to verify the eligibility of
dependents on [Cortes’s] medical benefit plan.” The letter signed by the fire chief stated that the
demand for dependent verification “should be considered a directive from [his] office” and that
“full cooperation is expected.” Cortes alleged that “[b]ecause the demand to provide the
documentation is a ‘directive,’ the failure to follow this directive results in disciplinary actions,
including suspension or termination.” According to Cortes’s petition, the directive by the fire chief
“and the potential disciplinary action” exceeded the fire chief’s statutory authority under section
143.051 of the Texas Local Government Code to discipline members of the San Antonio Fire
Department. Further, Cortes alleged that by demanding verification of dependents, the City
unilaterally altered his health benefits and thus (1) denied Cortes his right to organize and bargain
collectively with his public employer regarding a condition of his employment in violation of
section 174.023 of the Texas Local Government Code, and (2) breached the obligation to negotiate
in good faith in violation of section 174.105. Cortes sought declaratory and injunctive relief.
In response to the lawsuit, the City filed a motion to abate and to compel arbitration. It later
filed a supplement to its motion. The trial court denied the motion, and the City then filed this
interlocutory appeal.
STANDARD OF REVIEW
The CBA in this case is governed by the Federal Arbitration Act. See City of San Antonio
v. Int’l Ass’n of Fire Fighters, Local 624, Nos. 04-12-00783-CV & 04-13-00109-CV, 2013 WL
5508408, at *3 (Tex. App.—San Antonio Oct. 2, 2013, no pet.). Generally, we review a trial
court’s ruling on a motion to compel arbitration for abuse of discretion, affording deference to the
court’s factual determinations, but reviewing legal questions de novo. Garcia v. Huerta, 340
S.W.3d 864, 868 (Tex. App.—San Antonio 2011, pet. denied). Thus, the existence and the
applicability of an arbitration agreement is a question of law reviewed under a de novo standard.
-2-
04-14-00301-CV
Id. If the arbitration agreement includes the claims at issue and the opposing party cannot prove
any defense preventing arbitration, “the trial court has no discretion but to compel arbitration and
stay its own proceedings.” In re FirstMerit Bank, 52 S.W.3d 749, 754 (Tex. 2001).
In order to succeed in its motion to compel arbitration, the City had to demonstrate that a
valid arbitration agreement existed and that Cortes’s claims fell within the scope of the agreement.
See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). In determining “whether a
party’s claims fall within an arbitration agreement’s scope, we focus on the [petition]’s factual
allegations rather than the legal causes of action asserted.” In re FirstMerit Bank, 52 S.W.3d at
754. And, generally, any doubts about the scope of an arbitration agreement must be decided in
favor of arbitration. In re D. Wilson Constr. Co., 196 S.W.3d 774, 782 (Tex. 2006).
Once the existence of a valid arbitration agreement is established, a strong presumption in
favor of arbitration arises, In re FirstMerit Bank, 52 S.W.3d at 753, and “an order to arbitrate the
particular grievance should not be denied unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the asserted dispute,” Wright v.
Universal Mar. Serv. Corp., 525 U.S. 70, 78 (1998) (citations omitted). To rebut this presumption,
the party opposing arbitration bears the burden of raising an affirmative defense to enforcement of
the agreement to arbitrate. J.M. Davidson, Inc., 128 S.W.3d at 227; see In re AdvancePCS Health
L.P., 172 S.W.3d 603, 607 (Tex. 2005) (discussing affirmative defenses in context of arbitration
agreements).
DISCUSSION
The City argues that the trial court erred in denying its motion to compel arbitration because
the doctrine of res judicata prevents Cortes from relitigating the issue of whether his claims should
be referred to arbitration. The City emphasizes that Cortes’s claims are identical to those already
brought by the Union and are related to the same CBA. In City of San Antonio v. International
-3-
04-14-00301-CV
Association of Fire Fighters, Local 624, Nos. 04-12-00783-CV & 04-13-00109-CV, 2013 WL
5508408, at *1 (Tex. App.—San Antonio Oct. 2, 2013, no pet.), the Union filed a lawsuit “alleging
that the City had violated Chapter 174 of the Texas Local Government Code by unilaterally
altering the prerequisites for health-insurance coverage of firefighters and their dependents without
engaging in good-faith collective bargaining with the Union.” Specifically, the Union alleged that
“the City unilaterally changed the CBA’s terms by: (1) requiring active enrollment in order for the
firefighters to continue receiving health-care benefits; and (2) threatening termination of coverage
for currently covered dependents unless the firefighters provide additional information.” Id. The
City filed a motion to compel, arguing that under the terms of the CBA, the Union’s claims had to
be compelled to arbitration. Id. After the trial court denied the motion and the City filed its
interlocutory appeal, this court considered whether the Union’s claims fell within the scope of the
CBA’s arbitration agreement. Id. at *3.
This court then looked at the arbitration provision contained within the CBA, Article 30.
Id. at *4. Article 30 states the following:
The purpose of this Article is to provide a just, equitable, and
expeditious method for resolving disputes between the City and the
Union (or employees) concerning all aspects of the employment
relationship between the City and bargaining unit employees, and
concerning the bargaining relationship between the City and the
Union. To that end, the parties hereby agree and stipulate as follows:
A. All disputes concerning the interpretation and/or application of
the terms of this Agreement shall be submitted, if at all, to the
grievance/arbitration procedure as called for herein. Failure to
initially pursue grievance/arbitration in these instances shall be
the basis for a plea in abatement in response to any suit or claim
filed with a court of law and/or administrative agency.
B. Employee claims of violation of statutory or constitutional rights
may be submitted to the grievance/arbitration procedure or may
be pursued by means of judicial and/or administrative appeal;
provided that once the employee has elected to file a lawsuit
and/or administrative claim, all issues raised by the dispute or
-4-
04-14-00301-CV
claim will be resolved in such lawsuit and/or administrative
process, and no grievance may be filed concerning the same
subject matter. It is recognized that claims falling under this
subparagraph may be included with related claims of contract
violations. In such circumstances, the City shall not be entitled
to abatement of a suit involving the contract claims, related to
the statutory or constitutional claims asserted, for failure to
grieve such contract matters initially. If the employee elects to
use the grievance/arbitration procedure to raise statutory or
constitutional claims, such matters may not thereafter be
appealed to court except as provided by this Article. 1
This court noted that pursuant to this language, (1) disputes based on the “interpretation and/or
application” of the CBA must be submitted to the arbitration procedure, and (2) “employees have
the choice to pursue claims based on a statutory violation using either the arbitration procedure or
a judicial forum, even if related contract claims are also made.” Id.
In explaining why its claims did not fall within the scope of the arbitration agreement, the
Union argued that its claims were not based on the interpretation or application of the CBA because
it had not brought claims for violations of the CBA but was instead asking “the trial court to
determine the meaning of provision of Chapter 174 and to declare a violation of those provisions.”
Id. at *6. This court, however, concluded that the Union’s claims did fall within the scope of the
arbitration agreement. Id. This court explained that when determining whether the Union’s claims
fell within the scope of the arbitration provision, “we focus on the complaint’s factual allegations
rather than the legal causes of action asserted.” Id. at *5 (quoting In re FirstMerit Bank, 52 S.W.3d
749, 754 (Tex. 2001)). Because the Union sought “a judicial declaration that the City has, without
authority, changed health-care benefit eligibility without bargaining collectively,” a court could
not “make such a declaration without first interpreting the current CBA provisions regarding
1
Article 30 contains two other subparagraphs, C and D, which relate respectively to the filing of (1) employment
discrimination claims and (2) disciplinary matters subject to the appeals procedure provided by chapter 143 of the
Texas Local Government Code.
-5-
04-14-00301-CV
health-care benefits, and then determining whether the information or action required by the City
alters or changes the CBA’s current provisions.” Id. This court thus concluded the Union’s claims
fell within the scope of the arbitration agreement. Id. Neither party appealed this court’s decision
and mandate issued. Thereafter, Cortes filed the underlying lawsuit containing the same allegations
as the lawsuit filed by the Union. The City argued in its motion to abate and compel arbitration
that because Cortes is in privity with the Union, he is bound by this court’s holding in City of San
Antonio v. International Association of Fire Fighters, Local 624, 2013 WL 5508408, at *5, under
the principles of res judicata and/or collateral estoppel, and cannot relitigate the issue of whether
these claims can be resolved in a judicial forum or should be compelled to arbitration.
“Broadly speaking, res judicata is the generic term for a group of related concepts
concerning the conclusive effects given final judgments.” Barr v. Resolution Trust Corp., 837
S.W.2d 627, 628 (Tex. 1992). “Within this doctrine, there are two principal categories: (1) claim
preclusion (also known as res judicata); and (2) issue preclusion (also known as collateral
estoppel).” Id. “Res judicata, or claims preclusion, prevents the relitigation of a claim or cause of
action that has been finally adjudicated, as well as related matters that, with the use of diligence,
should have been litigated in the prior suit.” Id. “Issue preclusion, or collateral estoppel, prevents
relitigation of particular issues already resolved in a prior suit.” Id. It “is designed to promote
judicial efficiency and to prevent inconsistent judgments by preventing any relitigation of an
ultimate issue of fact.” Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001). The
City argues that the trial court erred in denying its motion to abate and compel arbitration in this
case because the issue of whether these claims should be compelled to arbitration was already
determined by our prior opinion.
Under both federal and Texas law, collateral estoppel applies when (1) the issue of fact or
law sought to be litigated in the second action was fully and fairly litigated in the first action; (2)
-6-
04-14-00301-CV
that issue of fact or law was essential to the judgment in the first action; and (3) the party against
whom the doctrine is asserted was a party or was in privity with a party in the first action. See
Taylor v. Sturgell, 553 U.S. 880, 892 (2008); Sysco Foods Servs., Inc. v. Trapnell, 890 S.W.2d
796, 801-02 (Tex. 1994); see also John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90
S.W.3d 268, 288 (Tex. 2002) (explaining elements of collateral estoppel under federal and Texas
law are the same). With regard to the first element, the issue of whether the parties should be
compelled to arbitration pursuant to the CBA was fully and fairly litigated in the first proceeding.
See International Association of Fire Fighters, 2013 WL 5508408, at *1-*8. Cortes argues that he
has brought one additional claim that was not brought by the Union in the first lawsuit. However,
collateral estoppel “bars successive litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior judgment, even if the issue recurs in
the context of a different claim.” Taylor, 553 U.S. at 892 (citation omitted) (emphasis added). Thus,
even though Cortes added a slightly different claim, it is based on the same facts as the first
proceeding and collateral estoppel would still apply. See Proctor v. Dist. of Columbia, No. 13-
00985, 2014 WL 6676232, at *6 (D.D.C. Nov. 25, 2014) (holding that teacher’s claims, including
one based on age discrimination, must be dismissed under collateral estoppel because even though
the prior suit by the Union had contained no allegation regarding age discrimination, the teacher’s
age discrimination allegation simply “attempt[ed] to pour new wine into old wine skins,”
“precisely th[e] type of argumentation” “forbid[den]” by issue preclusion).
Secondly, that issue was essential to our judgment in the first appeal, and our judgment
was not appealed. Cortes argues that there is not yet a final judgment on the merits with regard to
the case brought by the Union. However, for purposes of collateral estoppel there need not
necessarily be a final judgment on the merits. Instead, the test for finality is “whether the
conclusion in question is procedurally definite.” Van Dyke v. Boswell, O’Toole, Davis &
-7-
04-14-00301-CV
Pickering, 697 S.W.2d 381, 385 (Tex. 1985) (quoting RESTATEMENT (SECOND) OF JUDGMENTS
§ 13, comment (g) (1982)). “The factors to be considered in answering this question include
whether ‘the parties were fully heard, [whether] the court supported its decision with a reasoned
opinion [and whether] the decision was subject to appeal or was in fact reviewed on appeal.’” Id.
(quoting RESTATEMENT (SECOND) OF JUDGMENTS § 13, comment (g) (1982)) (alteration in
original). In the prior case brought by the Union, the parties were fully heard at the trial court and
at this court in the interlocutory appeal. And, because neither party filed a petition for discretionary
review in the supreme court, mandate was issued. Thus, the prior appeal meets all these elements.
So, while the merits of the case brought by the Union have not resulted in a final judgment, the
issue of whether the parties should be compelled to arbitration is final for purposes of collateral
estoppel.
Lastly, Cortes was in privity with the Union, the party in the first action, and is thus bound
by this court’s ruling in the first appeal that the parties should be compelled to arbitration under
the CBA. Collateral estoppel may not be asserted against one who was not a party in the first case.
See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971). “The rules that
identify the parties affected by issue preclusion . . . are often described as rules of ‘privity’ and
‘mutuality.’” 18 Charles Alan Wright, FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 4416
(2d ed.). “The term ‘privity’ signifies that the relationship between two or more persons is such
that a judgment involving one of them may justly be conclusive upon the others, although those
others were not party to the lawsuit.” Gill & Duffus Servs., Inc. v. A.M. Nural Islam, 675 F.2d 404,
405 (D.C. Cir. 1982). Union members are considered to be in privity with their union for purposes
of collateral estoppel. See Hitchens v. Cnty. of Montgomery, 98 Fed. Appx. 106, 114 (3d Cir. 2004)
(“[C]ourts have held union members to be in privity with the union and have held that a decision
against a union can bind union members in a subsequent action.”); Heade v. Wash. Metro. Area
-8-
04-14-00301-CV
Transit Auth., No. 09-02460, 2010 WL 938462, at *2 n.2 (D.C.C. 2010) (“Plaintiff’s contention
that the arbitration’s findings do not bar her claim because she was not a party to that proceeding
is also without merit . . . [because] she was in privity with her union.”), aff’d, 2010 WL 3521596
(D.C. Cir. 2010) (affirming and stating appellant was in privity with the union). Thus, individual
members of labor unions can be bound by judgments in suits brought by the union in its
representative capacity. Meza v. Gen. Battery Corp., 908 F.2d 1262, 1268 (5th Cir. 1990).
Because collateral estoppel prevents relitigation of the underlying issue in this appeal, we
reverse the trial court’s order on the City’s motion to abate and to compel arbitration, render
judgment granting the motion, and abate the underlying lawsuit “until the exhaustion of remedies
provided for in this [CBA] have been completed to finality.” International Ass’n of Fire Fighters,
2013 WL 5508408, at *8.
Karen Angelini, Justice
-9-
|
T.C. Memo. 2014-139
UNITED STATES TAX COURT
JAMES CROPPER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5388-13L. Filed July 14, 2014.
James Cropper, pro se.
Tamara L. Kotzker, for respondent.
MEMORANDUM OPINION
KERRIGAN, Judge: The petition in this case was filed in response to a
Notice of Determination Concerning Collection Action(s) under Section 6320
-2-
[*2] and/or 6330 (notice of determination) issued January 24, 2013,1 upholding a
proposed levy collection action for tax years 2006, 2007, and 2008. We must
consider whether respondent’s determination to proceed with the collection action
regarding petitioner’s unpaid income tax liabilities for tax years 2006, 2007, and
2008 was proper.
Unless otherwise indicated, all section references are to the Internal
Revenue Code, as amended, in effect at all relevant times, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
Background
This case was submitted fully stipulated under Rule 122. The stipulated
facts are incorporated in our findings by this reference.
Petitioner resided in Colorado when he filed the petition. Petitioner did not
file individual income tax returns for tax years 2006, 2007, and 2008. Pursuant to
section 6020(b) the Internal Revenue Service (IRS) prepared substitutes for
returns for tax years 2006, 2007, and 2008.
On August 31, 2009, and January 4 and September 27, 2010, respondent
issued to petitioner three separate notices of deficiency for tax years 2006, 2007,
and 2008, respectively. Each notice of deficiency was addressed to a particular
1
The notice of determination is incorrectly dated January 24, 2012.
-3-
[*3] P.O. Box in Norwood, Colorado. Petitioner has not updated his address with
the IRS since 2003. Petitioner did not petition this Court for redetermination of
the amounts determined in the notices of deficiency.
For each notice of deficiency respondent filled out a PS Form 3877. The PS
Forms 3877 show that the notices of deficiency were mailed by certified mail to
the same P.O. Box in Norwood, Colorado. Each PS Form 3877 contains a stamp
from the Detroit, Michigan, U.S. Postal Service office. Each PS Form 3877 also
bears the same date and tracking number as the corresponding notice of
deficiency. The PS Forms 3877 do not contain the names or signatures of any
U.S. Postal Service employees, and they do not list the number of pieces of mail
received at the U.S. Postal Service office.
On October 6, 2011, respondent sent petitioner a Letter 3172, Notice of
Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, for tax
years 2006, 2007, and 2008. The Letter 3172 was addressed to the same P.O. Box
in Norwood, Colorado, that was used for the notices of deficiency. The Letter
3172 informed petitioner that respondent had filed a notice of Federal tax lien
(NFTL) with respect to 2006, 2007, and 2008. The Letter 3172 further informed
petitioner that he had to request a collection due process (CDP) hearing by
November 16, 2011. According to the IRS account transcript for petitioner,
-4-
[*4] respondent received a CDP hearing request on January 13, 2012. The parties
have not provided the actual CDP hearing request. On January 31, 2012, the IRS
Appeals Office in Salt Lake City acknowledged that it had received petitioner’s
CDP hearing request.
On May 7, 2012, respondent sent petitioner a Letter 1058, Final Notice of
Intent to Levy and Notice of Your Right to a Hearing, regarding tax years 2006,
2007, and 2008. The Letter 1058 was addressed to the P.O. Box in Norwood,
Colorado. On June 4, 2012, petitioner mailed a Form 12153, Request for a
Collection Due Process or Equivalent Hearing (CDP hearing request). In the CDP
hearing request petitioner listed his address as the P.O. Box in Norwood,
Colorado. Petitioner stated that the basis for the hearing request was a proposed
or actual levy. He requested a face-to-face CDP hearing and stated that he wished
to address the following issues: (1) whether the IRS followed all proper
procedures; (2) whether he was liable for the assessed tax; (3) whether he should
be held responsible for the penalties accrued; and (4) whether collection
alternatives were available to him. Petitioner further stated that he wished to
address the underlying liabilities, which he contended he had not had a prior
chance to contest.
-5-
[*5] On August 14, 2012, a settlement officer sent petitioner a letter addressed to
the P.O. Box in Norwood, Colorado. The letter scheduled a telephone CDP
hearing for September 20, 2012. The letter also requested that petitioner provide a
completed Form 433-A, Collection Information Statement for Wage Earners and
Self-Employed Individuals, and his unfiled Forms 1040, U.S. Individual Income
Tax Return, for 2009, 2010, and 2011 (collectively, requested documents) by
August 31, 2012. Petitioner did not provide the requested documents to the
settlement officer.
On September 20, 2012, the settlement officer attempted to call petitioner.
A man who identified himself as petitioner’s brother answered the call and stated
that petitioner no longer used that phone number. The man gave the settlement
officer a new telephone number for petitioner. The settlement officer called the
new telephone number and left a message for petitioner. Petitioner did not call
back.
Later that day the settlement officer mailed petitioner a letter, addressed to
the P.O. Box in Norwood, Colorado. The settlement officer wrote that she had
attempted to contact petitioner. She explained that petitioner was not entitled to a
face-to-face CDP hearing because he had not filed his tax returns. She enclosed
-6-
[*6] copies of the notices of deficiency regarding tax years 2006, 2007, and 2008,
noting that each one was sent to petitioner’s last known address.
On September 21, 2012, the settlement officer received a letter from
petitioner, dated September 17, 2012, stating that he would be unable to
participate in the telephone CDP hearing at the date and time chosen. He
reiterated his request for a face-to-face CDP hearing. He further stated that he did
not receive a notice of deficiency for 2006, 2007, or 2008. Petitioner listed the
P.O. Box in Norwood, Colorado, as his address.
On October 16, 2012, the settlement officer sent petitioner a letter
addressed to the P.O. Box in Norwood, Colorado. The settlement officer wrote
that the CDP hearing would be held by correspondence. The settlement officer
explained again that petitioner was not entitled to a face-to-face CDP hearing
because he had not filed his tax returns. She stated that petitioner could not raise
the underlying liabilities at his CDP hearing because he had received notices of
deficiency for 2006, 2007, and 2008.
On October 18, 2012, petitioner sent a letter to the settlement officer in
response to the September 20, 2012, letter. Petitioner again contended that he did
not receive any notice of deficiency for 2006, 2007, or 2008. Petitioner listed the
P.O. Box in Norwood, Colorado, as his address.
-7-
[*7] On November 14, 2012, petitioner sent a letter to the settlement officer in
response to the October 16, 2012, letter. Petitioner once more requested a face-to-
face CDP hearing and stated that he did not receive any notice of deficiency for
2006, 2007, or 2008. Petitioner never provided the settlement officer with any of
the requested documents. Petitioner listed the P.O. Box in Norwood, Colorado, as
his address.
On January 24, 2013, the settlement officer issued the notice of
determination for tax years 2006, 2007, and 2008. The notice of determination
was mailed to the P.O. Box in Norwood, Colorado. In the notice of determination
the settlement officer verified that all requirements of applicable law and
administrative procedure had been met. Specifically, the settlement officer noted
that she reviewed the Forms 4340, Certificate of Assessments, Payments, and
Other Specified Matters, to verify that the notices of deficiency were properly
mailed. In addition, the settlement officer confirmed that the Letter 3172, mailed
to petitioner at the same P.O. Box in Norwood, Colorado, as the notice of
deficiency, was delivered to petitioner without incident. She also determined that
the proposed levy was an appropriate action that balanced the need for the
efficient collection of unpaid tax with the legitimate concern that such actions be
no more intrusive than necessary. She noted that petitioner provided no collection
-8-
[*8] alternatives and that he failed to provide any requested documents to her.
The notice of determination sustained the proposed levy collection action for tax
years 2006, 2007, and 2008. It did not address a lien.
On February 28 and April 30, 2013, petitioner filed with this Court a
petition and an amended petition, respectively. Petitioner contends that (1)
because he did not receive any notice of deficiency for tax year 2006, 2007, or
2008, respondent erred by not allowing him to challenge the underlying tax
liabilities; (2) respondent erroneously denied him a face-to-face hearing; (3)
respondent failed to provide him with “any admissible evidence that would
support the IRS’s claim to this assessed tax”; and (4) respondent failed to meet all
applicable requirements. On the petition and the amended petition, petitioner
listed the P.O. Box in Norwood, Colorado, as his address.
Discussion
Section 6331(a) authorizes the Secretary to levy upon the property and
property rights of a taxpayer who fails to pay a tax within 10 days after a notice
and demand. Before the Secretary may levy upon the taxpayer’s property, the
Secretary must notify the taxpayer of the Secretary’s intention to make the levy.
Sec. 6331(d)(1). The Secretary must also notify the taxpayer of his or her right to
a CDP hearing. Sec. 6330(a)(1).
-9-
[*9] A taxpayer who fails to make a timely request for a CDP hearing with respect
to the filing of an NFTL is not entitled to a CDP hearing. Sec. 301.6320-1(b)(1),
Proced. & Admin. Regs. The taxpayer may nevertheless request an equivalent
hearing. Id. In order to make a timely request, the taxpayer must request a CDP
hearing during the 30-day period that starts the day after the end of the five
business day period within which the IRS is required to provide notice of the filing
of the NFTL. Id.
The Letter 3172 indicates that the NFTL was filed on October 7, 2011, and
that petitioner had until November 16, 2011, to request a CDP hearing. The
record reflects that respondent received a CDP hearing request regarding the
NFTL on January 13, 2012, almost two months after the deadline. The CDP
hearing request with respect to the NFTL therefore was untimely; the notice of
determination thus constitutes a notice of determination only with respect to the
proposed levy and does not confer jurisdiction on this Court with respect to the
NFTL. See Orum v. Commissioner, 123 T.C. 1, 10-12 (2004), aff’d, 412 F.3d 819
(7th Cir. 2005). Therefore, we discuss only the proposed levy.
If the taxpayer requests a CDP hearing, the hearing is conducted by the
Appeals Office. Sec. 6330(b)(1). At the hearing the taxpayer may raise any
relevant issue relating to the unpaid tax or the proposed levy. Sec. 6330(c)(2)(A).
- 10 -
[*10] Relevant issues include any collection alternatives or spousal defenses. Id.
Once the settlement officer makes a determination, the taxpayer may appeal the
determination to this Court. Sec. 6330(d)(1). The Court has jurisdiction to review
the Commissioner’s administrative determinations. Id.
I. Challenge to the Underlying Liabilities
Petitioner asserts that he did not receive any notice of deficiency for tax
year 2006, 2007, or 2008 and therefore the settlement officer improperly denied
him the opportunity to challenge his underlying liabilities at the CDP hearing.
A taxpayer may not challenge an underlying tax liability during a CDP
hearing unless the taxpayer did not receive a statutory notice of deficiency for the
liability and did not otherwise have the opportunity to dispute the liability. Sec.
6330(c)(2)(B); see also Montgomery v. Commissioner, 122 T.C. 1, 9 (2004). The
Commissioner must send a notice of deficiency to the taxpayer before the
Commissioner may assess, collect, or reduce to judgment most income tax
liabilities. United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Crain v.
Commissioner, T.C. Memo. 2012-97, slip op. at 12.
Where the validity of the underlying tax liability is properly in issue, we
review the Commissioner’s determination to proceed with collection de novo.
Sego v. Commissioner, 114 T.C. 604, 609-610 (2000); Goza v. Commissioner,
- 11 -
[*11] 114 T.C. 176, 181-182 (2000). In a collection case where the validity of the
underlying tax liability is properly in issue, the burden of proof, including the
burden of going forward with evidence, is on the taxpayer to show the
Commissioner’s determination of liability was incorrect. See Rule 142(a);
Thompson v. Commissioner, 140 T.C. 173, 178 (2013); 535 Ramona Inc. v.
Commissioner, 135 T.C. 353, 358 (2010), aff’d, 461 Fed. Appx. 567 (9th Cir.
2011).
Whether or not petitioner received any notices of deficiency for the tax
years in issue, his challenge to the underlying liabilities fails. Petitioner failed to
make any specific contentions or to proffer any evidence before the Court showing
why respondent’s liability determinations are incorrect.
II. Abuse of Discretion
The Court reviews administrative determinations by the Commissioner’s
Appeals Office regarding nonliability issues for abuse of discretion. Hoyle v.
Commissioner, 131 T.C. 197, 200 (2008); Goza v. Commissioner, 114 T.C. at 182.
An abuse of discretion occurs if the Appeals Office exercises its discretion
“arbitrarily, capriciously, or without sound basis in fact or law.” Woodral v.
Commissioner, 112 T.C. 19, 23 (1999).
- 12 -
[*12] Petitioner contends that the settlement officer abused her discretion because
she did not provide him with a face-to-face CDP hearing. CDP hearings are
informal and do not require a face-to-face meeting. Sec. 301.6330-1(d)(2), Q&A-
D6, Proced. & Admin. Regs.; see also Katz v. Commissioner, 115 T.C. 329, 337
(2000). The settlement officer did not abuse her discretion by rejecting
petitioner’s request for a face-to-face CDP hearing in favor of a correspondence
CDP hearing.
Petitioner further contends that respondent did not meet the applicable
requirements during the CDP hearing. Section 6330(c)(3) requires the settlement
officer to consider the following during a CDP hearing: (1) whether the
requirements of any applicable law or administrative procedure have been met; (2)
any issues appropriately raised by the taxpayer, and (3) whether the proposed
collection action balances the need for the efficient collection of taxes with the
legitimate concern of the taxpayer that any collection action be no more intrusive
than necessary. See also Lunsford v. Commissioner, 117 T.C. 183, 184 (2001).
Section 6330(c)(1) does not require the Commissioner to rely on a particular
document to satisfy the verification requirement imposed therein. See also
Roberts v. Commissioner, 118 T.C. 365, 371-372 n.10 (2002), aff’d per curiam,
- 13 -
[*13] 329 F.3d 1224 (11th Cir. 2003). The settlement officer was not required to
give petitioner a copy of the verification that the requirements of any applicable
law or administrative procedure have been met. See Nestor v. Commissioner, 118
T.C. 162, 166-167 (2002).
The settlement officer did not abuse her discretion by determining that
notices of deficiency had been sent to petitioner’s last known address. Petitioner
used the P.O. Box in Norwood, Colorado, as his address at all times. The PS
Forms 3877 correctly listed the P.O. Box in Norwood, Colorado, as petitioner’s
address. See Campbell v. Commissioner, T.C. Memo. 2013-57, at *10. The PS
Forms 3877 also listed the same certified mail tracking numbers as the notices of
deficiency and bore U.S. Postal Service stamps. See Crain v. Commissioner, slip
op. at 13. Respondent acknowledges that the PS Forms 3877 contain defects and
are not entitled to the presumption of mailing. Id. The settlement officer,
however, did not rely solely on the PS Forms 3877 to verify that the notices of
deficiency had been properly mailed. The settlement officer reviewed the Forms
4340 to verify that the notices of deficiency had been properly mailed. The
settlement officer also confirmed that the Letter 3172, mailed to petitioner at the
same P.O. Box in Norwood, Colorado, as the notices of deficiency, was delivered
to petitioner without incident. We find that the settlement officer did not abuse
- 14 -
[*14] her discretion. Cf. Meyer v. Commissioner, T.C. Memo. 2013-268 (holding
that we remand a case to the Appeals Office when the administrative record does
not show whether the Appeals officer relied on evidence other than a PS Form
3877 to verify proper mailing of the notice of deficiency).
Petitioner has not shown an irregularity in respondent’s assessment
procedure. See Nestor v. Commissioner, 118 T.C. at 166-167 (placing the burden
on the taxpayer to prove an irregularity existed in the assessment procedure).
Petitioner likewise has failed to show that the settlement officer did not properly
determine that the requirements of any applicable law or administrative procedure
had been met.
We find that the settlement officer properly based her determination on the
required factors. The settlement officer (1) verified that all legal and procedural
requirements had been met, (2) considered the issues petitioner raised, and (3)
determined that the proposed collection action appropriately balanced the need for
the efficient collection of taxes with the legitimate concern of petitioner that the
collection action be no more intrusive than necessary.
The settlement officer’s determination to proceed with collection was not
an abuse of discretion. Any contention we have not addressed is irrelevant, moot,
or meritless.
- 15 -
[*15] To reflect the foregoing,
Decision will be entered
for respondent.
|
874 F.2d 584
63 A.F.T.R.2d 89-1457, 57 USLW 2719, 89-1USTC P 9328
Bill GATES, Appellant,v.UNITED STATES of America, Appellee.
No. 88-1765.
United States Court of Appeals,Eighth Circuit.
Submitted April 11, 1989.Decided May 15, 1989.
Bill Gates, pro se.
Gary R. Allen, Washington, D.C., for U.S.
Before ARNOLD, FAGG, and WOLLMAN, Circuit Judges.
PER CURIAM.
1
Bill Gates appeals from the district court's order granting summary judgment against him in his suit contesting a $69,000 penalty assessed against him by the Internal Revenue Service (IRS) for promoting abusive tax shelters, 694 F.Supp. 610. On appeal Gates challenges the district court's determination of liability and its assessment of penalties. We affirm on the issue of liability and reverse as to the assessment of penalties.
2
In 1982 and 1983 Gates became involved with the promotion of two tax shelter schemes established by H & L Schwartz, Inc. (Schwartz, Inc.). Gates encouraged people to invest in American Educational Leasing (AEL) and American Videogame Leasing (AVL), by leasing recordings and video programs for a stated price. AEL or AVL would then pass through to each investor/lessee an investment tax credit calculated at 10% of the program's stated purchase price, which Schwartz, Inc. stated was equivalent to the program's fair market value. Section 48(d) of the Internal Revenue Code of 1954 permitted a lessor to pass the investment tax credit through to a lessee, provided the lessee "acquired" the property for an amount equal to its fair market value.
3
Gates, as a representative for AEL and AVL, solicited tax preparers by presenting promotional material containing projections of the tax benefits to be derived by the investors. These presentations included slide/videotape shows detailing how the audio and video programs were manufactured and how they were to be reproduced and distributed, and referred to various appraisals to answer questions concerning the programs' purported fair market value. Gates received a percentage of the money on every lease completed by tax preparers he recruited. Eventually, Gates received fees on 132 leases, totaling $79,791.
4
In an earlier proceeding, a United States district court in California, after hearing testimony that the audio programs were essentially worthless and the video programs were overvalued by at least 2000%, found that Schwartz, Inc. and its chief operating officer had been promoting a fraudulent tax scheme in violation of 26 U.S.C. Sec. 67001 (amended 1984). Subsequently, the IRS established that Gates had participated in the sale of sixty-nine interests in the Schwartz, Inc. tax shelters, and under section 6700 assessed a penalty of $1000 per sale, for a total of $69,000.
5
Gates paid a portion of the penalty and filed an administrative claim for refund, which was denied by the IRS. He then filed this refund suit in the Eastern District Court of Arkansas claiming that (1) he had never assisted in the organization of the scheme, nor furnished a gross valuation overstatement; and, alternatively, (2) the penalty should have been assessed at 10% of the gross income derived from his alleged participation ($7971), instead of $1000 per sale ($69,000).
6
The district court granted the government's motion for summary judgment, finding that the evidence that Gates had solicited, trained, and equipped salesman for the AEL and AVL programs was sufficient to establish that he "assisted in the organization" within the meaning of section 6700(a)(1)(A)(ii), and that his admission that he had furnished the offering materials containing the valuation overstatements was sufficient to establish he "furnished" such statements within the meaning of section 6700(a)(2)(B). Because the section imposed strict liability, the court concluded that Gates' alleged ignorance of the overvaluation was no defense. Finally, the court granted summary judgment on the issue of the proper calculation of the penalty, finding that "the plain language of the statute and the weight of authority favors the government's position."
A. Liability
7
Gates acknowledged he recruited tax preparers to market AEL and AVL business opportunities to their clients, recruited sales people to solicit tax preparers and to sell interests in AEL and AVL, "strongly pointed out" to those he recruited that they were not to give tax advice, and "made clear" they were to enlist tax preparers in the same way he did. He also admitted that in responding to questions about the valuation, he would refer individuals to the valuation statements contained in the promotional offering materials. This conduct is sufficient to satisfy the requirements of section 6700.
8
Gates also seeks to avoid liability on the ground that he did not know that the valuations were gross overstatements. When read in its entirety, however, section 6700(a)(2) indicates that the government can establish liability by showing that a person made or furnished either a tax-related statement he knew or had reason to know was false or a gross valuation overstatement. Accordingly, knowledge is relevant only when a promoter furnishes a false tax-related statement.
B. Penalty Calculation
9
Under section 6700, the penalty for organizing or promoting abusive tax shelters is assessed as "the greater of $1,000 or 10 percent [now 20 percent] of the gross income derived or to be derived by such person from such activity." 26 U.S.C. Sec. 6700(a) (emphasis added).
10
Gates argues that section 6700 mandates a minimum penalty equal to the greater of $1000 per year or 10% (now 20%) of the total amount of income earned from the sale of such shelters in any one year and that the assessment should be on an annual tax-year basis.
11
The IRS argues that the statute's use of singular terms--organization, sale, penalty, activity--clearly indicates congressional intent to impose a separate penalty of $1000, or 10% of the income derived from each organization of an abusive tax shelter or each sale of an interest therein. Accordingly, it argues that the penalty should be calculated on a transactional basis, i.e., a minimum $1000 penalty for each prohibited sale. It also argues that the penalty should be assessed once for the overall activity.
1. Standard of Review
12
We are mindful that an interpretation given a statute by the administering agency is entitled to considerable deference. Groseclose v. Bowen, 809 F.2d 502, 505 (8th Cir.1987). This deference, however, "is constrained by our obligation to honor the clear meaning of the statute, as revealed by its language, purpose, and history." International Bhd. of Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979). We also recognize that although the section 6700 penalty is an important weapon in the IRS's efforts to eliminate abusive shelters, the penalty must be assessed fairly. Furthermore, principles of statutory interpretation require resolution of ambiguities in penalty statutes in favor of lenity. See United States v. Anderson, 626 F.2d 1358, 1370 (8th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). Accordingly, we conclude that a transactional "per sale" assessment is not supported by a reasoned analysis of the statute or legislative history and that such an interpretation would lead to inequitable results. We agree with the IRS, however, that the assessment should be made on a one-time basis rather than annually.
13
2. Calculation of Penalty on Non-Transactional Basis
14
Lower court decisions that have addressed the meaning of "such activity" in the context of section 6700 penalties have reached different results. Of the reported decisions, we find the analysis in Spriggs v. United States, 660 F.Supp. 789, 791 (E.D.Va.1987), aff'd without published opinion, 850 F.2d 690 (4th Cir.1988), and In re Bowen, 84 B.R. 214 (Bankr.D.Utah 1988), to be most persuasive.2 As noted in Spriggs, the term "activity" stands in contrast to the use of "organization or sale" in the previous subsection. Had Congress intended the penalty to apply to each separate sale, it could have repeated the phrase "such organization or sale" or used explicit language to that effect, as it did in other penalty provisions.3
15
Gates' reading of the statute is further bolstered by the legislative history. In 1982 Congress enacted section 6700 to attack the source of abusive tax shelters by penalizing the "promoters." See S.Rep. No. 494, 97th Cong., 2d Sess. 1, reprinted in 1982 U.S.Code Cong. & Admin. News 781, 1014. In 1984 Congress concluded that the existing section 6700 did not effectively deter abusive tax shelter promoters, and it raised the penalty from 10% to 20% of income derived from the activity. The House Committee Report on the 1984 Act states:
16
The bill increases the penalty for promoting abusive tax shelters to the greater of 20 percent of the gross income derived, or to be derived, from the activity, or $1,000. The committee did not increase the $1,000 penalty because, as originally enacted, the $1,000 was intended to be a minimum penalty on small promoters who derive little income from the deals they promote.
17
H.R.Rep. No. 432, 98th Cong., 2d Sess., 1357-58, reprinted in 1984 U.S.Code Cong. & Admin. News 697, 1009.
18
This comment indicates that the $1000 amount was not to be compounded as a means of punishing high-volume tax shelter promoters, but rather established a minimum penalty to be applied when 20% of the gross income from the activity of promoting abusive tax shelters fell below $1000. Although the government argues that the opinion of a Congress subsequent to the Congress that enacted section 6700 deserves little weight, views of a subsequent Congress are entitled to significant weight when the precise intent of the enacting Congress is obscure. See Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 813-14, 63 L.Ed.2d 36 (1980).
19
The IRS also argues that Congress intended the penalty to be a means of reimbursing the IRS for the cost of auditing individual returns of persons involved in tax shelter schemes, thereby making it entirely appropriate to impose a penalty based on each sale. We disagree. A close reading of the legislative history reveals that Congress was concerned with the IRS's limited resources and determined that they could be used more economically by focusing on the prevention of tax shelters instead of enforcement actions. "[T]he Internal Revenue Service can be expected to approach the problem with vigor since prevention * * * will require less manpower than enforcement action against numerous investor-taxpayers." H.R.Rep. No. 494, 97th Cong. 2d Sess. 1, reprinted in 1982 U.S.Code Cong. & Admin. News 781, 1014.
20
In addition, as noted in In re Bowen, 84 B.R. at 218, the scope of section 6700 covers both organizers and sellers. Under the IRS's reading, organizers who retain several individual sellers would likely be subjected to a 10% penalty for the creation of the overall shelter, whereas the sellers would likely be penalized $1000 per sale. We find no legislative support for punishing sellers more severely than organizers, and we conclude that such an inconsistent application would not aid in achieving the goal of discouraging abusive tax shelters.
21
Moreover, as noted in Spriggs, 660 F.Supp. at 792, the IRS's reading could result in inequitable penalty assessments between two promoters: one who earns a 10% commission on the sale of one shelter for $10,000; the other who earns a 10% commission on the sale of ten shelters for $1000 each. Although each seller earned $1000 in commission, the first would be penalized $1000, the second $10,000. Although the IRS argues that a larger penalty is justified in the second instance because of the increased administrative work generated by multiple proscribed sales, we have already concluded that Congress did not intend the penalty provision to be a means of reimbursing the IRS for the cost of auditing returns.
22
Finally, the IRS argues that Gates' reading of the statute would result in his paying a penalty of approximately $7900 on three years' gross income totaling approximately $79,000, a penalty that hardly furthers the legislative goal of deterring the organization of abusive tax shelters. Nevertheless, Congress chose a percentage penalty instead of opting for a complete forfeiture of all income derived from abusive tax shelter schemes, and we are bound by that choice.
3. Assessment Period
23
The assessment of section 6700 penalties is governed by 26 U.S.C. Sec. 6671 which reads in relevant part:
24
(a) Penalty assessed as tax.--
25
The penalties and liabilities provided by this subchapter shall be paid upon notice and demand by the Secretary, and shall be assessed and collected in the same manner as taxes. Except as otherwise provided, any reference in this title to 'tax' imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter.
26
The IRS argues that the penalty should be assessed once. Gates argues the penalty should be assessed annually, and urges us to adopt the analysis of the Spriggs court which focused on the language directing that penalties "be assessed * * * in the same manner as taxes," and concluded that an annual basis determination was proper because taxes are assessed on an annual basis. Spriggs, 660 F.Supp. at 791 n. 2.
27
We do not find this conclusory statement persuasive. Indeed, it does not appear that section 6671 dictates any particular assessment period for section 6700 penalties, which do not relate to any specific tax. Accordingly, we find the IRS's assessment based on all tax-shelter income, actually received or reasonably expected to be received at the time of the assessment, to be reasonable, as it makes computation of the penalty administratively easier.
28
Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
1
Section 6700 provides as follows: Promoting abusive tax shelters, etc
(a) Imposition of penalty.--Any person who--
(1) (A) organizes (or assists in the organization of)--
(i) a partnership or other entity,
(ii) any investment plan or arrangement, or
(iii) any other plan or arrangement, or
(B) participates in the sale of any interest in an entity or plan or arrangement referred to in sub-paragraph (A), and
(2) makes or furnishes (in connection with such organization or sale)--
(A) a statement with respect to the allowability of any deduction or credit, the excludability of any income, or the securing of any other tax benefit by reason of holding an interest in the entity or participating in the plan or arrangement which the person knows or has reason to know is false or fraudulent as to any material matter, or
(B) a gross valuation overstatement as to any material matter,
shall pay a penalty equal to the greater of $1,000 or 10 percent of the gross income derived or to be derived by such person from such activity.
2
But see Popkin v. United States, 699 F.Supp. 893, 88-2 U.S. Tax Cas. (CCH) p 9461 (N.D.Ga.1988) (penalty assessed per transaction); Johnson v. United States, 677 F.Supp. 529, 531 (E.D.Mich.1988) (same); Waltman v. United States, 618 F.Supp. 718, 720 (M.D.Fla.1985) (same)
3
Individuals who aid and abet in the understatement of tax liability must pay a penalty "with respect to each such document" (26 U.S.C. Sec. 6701(a) (1982)). Similarly, a penalty for failure to supply a taxpayer identification number (26 U.S.C. Sec. 6676(e)), or to supply information on a place of residence (26 U.S.C. Sec. 6687), or a tax shelter identification number (26 U.S.C. Sec. 6707(b) (Supp. IV 1986)) applies to "each such failure."
|
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL SHERIDAN, No. 13-35999
Plaintiff - Appellant, D.C. No. 1:10-cv-00359-EJL
v.
MEMORANDUM*
BRENT REINKE; CMS, DBA Corizon,
Inc.; PHILIP VALDEZ; ICC-CCA;
NORMA RODRIGUEZ,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted April 8, 2015
Seattle, Washington
Before: FERNANDEZ, HAWKINS, and CALLAHAN, Circuit Judges.
Michael Sheridan (“Sheridan”), an inmate with the Idaho Department of
Corrections (the “IDOC”), appeals the adverse grant of summary judgment on his 42
U.S.C. § 1983 claims against Brent Reinke, the IDOC Director; Corizon, LLC
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(“Corizon”), the medical care provider for IDOC prisons; Corrections Corporation of
America (“CCA”), the private entity responsible for operating the Idaho Correctional
Center (“ICC”); Philip Valdez, the former ICC warden; and Norma Rodriguez, the
former ICC unit manager. Sheridan also appeals several discovery orders. We affirm.
Although error to grant summary judgment to Reinke solely on the basis that
he was not personally involved in the treatment of Sheridan’s post-traumatic stress
disorder (“PTSD”), Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074–75
(9th Cir. 2013), any such error was harmless, as Sheridan failed to show that Reinke
engaged in unlawful conduct causally connected to a deprivation of Sheridan’s
constitutional rights, Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013).
Sheridan also failed to demonstrate that he was deprived of constitutionally
adequate care for his PTSD while at the Idaho State Correctional Institution (“ISCI”).
Sheridan testified that ISCI, in conjunction with the Veterans Administration, offered
weekly group therapy sessions for inmates suffering from PTSD and that he attended
several of those sessions. Sheridan also met with a licensed mental health clinician
when he arrived at ISCI and again approximately one year later. Corizon presented
an expert affidavit opining that group therapy and routine clinician follow up
appointments were medically acceptable forms of treatment for Sheridan’s PTSD.
Sheridan’s own, uncorroborated testimony that he needed individualized
2
psychotherapy administered by a “Ph.D psychologist” is insufficient to create a
question of fact as to whether group therapy and clinician appointments were
medically acceptable. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
Instead, his testimony demonstrates a preference in treatment, which is not a
cognizable Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97,107–08 (1976).1
The district court was not required to evaluate a medical care claim against
CCA at the summary judgment phase because that claim was properly dismissed in
the initial screening of Sheridan’s complaint and amended complaint. Id. (affirming
dismissal of pro se plaintiff’s complaint because allegations that prison medical staff
should have performed additional tests and offered additional treatment did not state
Eighth Amendment claim).
Sheridan concedes that he failed to present sufficient evidence of an objective
risk of substantial harm to withstand summary judgment on his failure-to-protect
claim against CCA, Valdez, and Rodriguez (collectively the “CCA Defendants”).
Sheridan contends only that alleged discovery abuses prevented him from obtaining
evidence necessary to oppose the CCA Defendants’ motion. Because we find the
1
In the alternative, Sheridan concedes that he never filed a grievance during
his time at ISCI. Thus, Sheridan failed to exhaust the administrative remedies for his
claim against Corizon. See 42 U.S.C. § 1997e(a). Sheridan’s subjective belief that
the use of the grievance system would be futile, without more, does not excuse his
failure to exhaust. See Sapp v. Kimbrell, 623 F.3d 813, 827 (9th Cir. 2010).
3
district court did not abuse its discretion in declining to reopen discovery, we affirm
summary judgment on Sheridan’s failure-to-protect claim.
To reopen discovery, Sheridan was required to show good cause, which in turn
requires a showing of diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 608–09 (9th Cir. 1992). Sheridan’s failure to diligently pursue discovery is
demonstrated in the record and supports the refusal to reopen discovery. Id. (“good
cause” inquiry focuses primarily on diligence of requesting party); Noyes v. Kelly
Servs., 488 F.3d 1163, 1173–74 (9th Cir. 2007). Furthermore, the district court fairly
balanced CCA’s failure to disclose the so-called Higgins Report with Sheridan’s
failure to diligently pursue discovery by permitting Sheridan to submit the Higgins
Report as a supplement to his opposition to the CCA Defendants’ motion.
On appeal, Sheridan argues that the Defendants withheld other relevant
evidence, including an Independent Monitor Final Action Plan (the “Plan”), a
disposition holding CCA in civil contempt (the “Contempt Order”), and a Special
Master’s Report (the “Balla Report”) filed in two other prisoner lawsuits involving
conditions at ICC and ISCI. The Plan and the Contempt Order are not relevant to
Sheridan’s discovery arguments, given that neither document existed at the time
Sheridan filed his motion to reopen discovery in this case. To the extent that Reinke
or Corizon should have disclosed the Balla Report, their failure to do so did not
4
prejudice Sheridan. Sheridan discussed and cited to the Balla Report in an August 22,
2012, letter filed with the court, demonstrating that Sheridan had access to the report
many months before summary judgment briefing. These additional documents do not
indicate that the district court abused its discretion in declining to reopen discovery.
Cf. Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (pro se plaintiff should be
given extension for discovery if “it is clear that additional relevant evidence remained
to be discovered”).
Finally, the district court did not abuse its discretion by bifurcating the
proceedings against Corizon. The bifurcation order applied only to Corizon and
simply postponed discovery on Corizon’s policies until after the parties completed
discovery and summary judgment on the issue of inadequate mental health care.
Discovery on Corizon’s policies would be unnecessary if Sheridan did not prove
inadequate care. The district court was permitted to limit discovery to serve judicial
economy, avoid unnecessary discovery, and protect against the unnecessary disclosure
of trade secrets. FED. R. CIV. P. 26(c); Johnson, 975 F.2d at 607 (district court has
“broad discretion in supervising the pretrial phase of litigation” (internal quotation
marks omitted)).
All pending motions are denied as moot.
AFFIRMED.
5
|
708 S.E.2d 215 (2011)
STATE
v.
WILEY.
No. COA09-1122.
Court of Appeals of North Carolina.
Filed January 18, 2011.
Certification Date February 7, 2011.
Case Reported Without Published Opinion
No Error.
|
44 F.3d 437
63 USLW 2425, 2 Wage & Hour Cas.2d (BNA) 814
The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY,Burlington Northern Railroad Company, Consolidated RailCorporation, CSX Transportation, Inc., Illinois CentralRailroad Company, Norfolk Southern Railway Company, Norfolk& Western Railway Company, Southern Pacific TransportationCompany, and Union Pacific Railroad Company, Petitioners,v.Federico PENA, Secretary of Transportation, et al., Respondents,andBrotherhood of Locomotive Engineers, and UnitedTransportation Union, Intervening Respondents.
Nos. 93-1505, 93-2378, and 93-2712.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 22, 1994.Decided July 13, 1994.Argued En Banc Oct. 18, 1994.Decided Dec. 29, 1994.
Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Fort Worth, TX, Ronald M. Johnson (argued), Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, Guy Vitello, Atchison, Topeka & Santa Fe Ry. Co., Schaumburg, IL, for Atchison, Topeka and Santa Fe Ry. Co.
Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Fort Worth, TX, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Burlington Northern R. Co., Southern Pacific Transp. Co.
Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, John B. Rossi, Jr., Andrew P. Cocoran, Consolidated Rail Corp., Philadelphia, PA, for Consolidated Rail Corp.
Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, James D. Tomola, CSX Transp., Inc., Jacksonville, FL, for CSX Transp., Inc.
Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, Ronald A. Lane, Illinois Cent. R. Co., Chicago, IL, for Illinois Cent. R. Co.
Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, William P. Stallsmith, Jr., Norfolk Southern Corp., Norfolk, VA, for Norfolk Southern Ry. Co., Norfolk & Western Ry. Co.
Thomas J. Knapp, Lawrence M. Stroik, W. Douglas Werner, Ronald M. Johnson, Mark V. Holden, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, Brenda J. Council, Union Pacific R. Co., Omaha, NE, for Union Pacific R. Co.
John F. Daly (argued), Malcolm L. Stewart, Dept. of Justice, Civil Div., Appellate Section, Rosalind A. Knapp, Dept. of Transp., Washington, DC, for Federico Pena.
John F. Daly, Malcolm L. Stewart, Dept. of Justice, Washington, DC, for S. Mark Lindsey.
S. Mark Lindsey, pro se.
John F. Daly, Malcolm L. Stewart, S. Mark Lindsey, David Herbert Kasminoff, Daniel C. Smith, Billie Ann Stultz, Federal R. Admin. Office of the Chief Counsel, Washington, DC, for Federal R. Admin.
John F. Daly, Malcolm L. Stewart, Rosalind A. Knapp, Dept. of Transp., Washington, DC, for National Transp. Safety Bd.
Lawrence M. Mann, Alper & Mann, Washington, DC, for Brotherhood of Locomotive Engineers, United Transp. Union.
Janet Reno, U.S. Atty. Gen., Washington, DC, John F. Daly (argued), Malcolm L. Stewart, Dept. of Justice, Civil Div., Appellate Section, Rosalind A. Knapp, Department of Transp., David Herbert Kasminoff, Daniel C. Smith, Billie Ann Stultz, Federal R.R. Admin., Office of the Chief Counsel, Lawrence M. Mann, Steven M. Weisbaum, Alper & Mann, Washington, DC, for National Transp. Safety Bd.
Before POSNER, Chief Judge, BAUER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.*
BAUER, Circuit Judge.
1
Petitioners, nine of the nation's largest railroads accounting for ninety percent of the industry's train operations, petition for review of the Federal Railroad Administration's (FRA) re-interpretation of the Hours of Service Act of 1907, 45 U.S.C. Secs. 61-66. The railroads challenge the FRA's recent announcement that it was abandoning an established interpretation of the Act and would consider as time on duty that time spent waiting for transportation to a designated terminal by a train crew that has been relieved of all operating duties of the train to which it is assigned. We find that the FRA's decision is entitled to no deference, and we interpret the Act, and eighty-five years of industry practice, such that this waiting time does not constitute time on duty.
2
Some background is necessary to place this issue in proper context. The Hours of Service Act imposes a limit on the maximum hours of service that a train crew can continuously operate trains while on duty. From the date of its original enactment through the late 1960's, the Interstate Commerce Commission administered and enforced the Act. Then, the Federal Railroad Administration, a component of the Department of Transportation, was created to take over these duties from the ICC.
3
"The purpose of the statute is to promote safety in operating trains by preventing the excessive mental and physical strain which usually results from remaining too long at an exacting task." Chicago & A.R. Co. v. United States, 247 U.S. 197, 199, 38 S.Ct. 442, 443, 62 L.Ed. 1066 (1918). In its original form, the Act limited train crews to sixteen continuous hours operating trains. c. 2939, Sec. 2, 34 Stat. 1416 (codified as amended 45 U.S.C. Sec. 62(a)(1)). Congress amended the Act so that since 1971, the maximum shift consists of twelve hours. 45 U.S.C. Sec. 62(a)(1). The Act also imposes mandatory time off duty before an employee can resume his operating duties. An employee who has worked a continuous twelve-hour shift must receive ten consecutive hours off duty. Id. In addition, no employee can be called to operations duty unless he has received eight continuous hours of off-duty time in the preceding twenty-four hour interval. 45 U.S.C. Sec. 62(a)(2).
4
Because of the itinerant nature of railroad operations, the limitation on a train crew's hours of service presents special problems to railroads. Obviously, when a train crew reaches its twelve-hour maximum it must cease operating its assigned train. If the train has not yet reached its destination, the "expired" or "outlawed" crew must "park" the train and wait for transportation to its designated terminal. The transportation typically is in the form of a railroad-owned van or another train going to the crew's designated terminal. The designated terminal may be the crew's home terminal or the "away from home" terminal designated by the railroad. See 45 U.S.C. Sec. 61(b)(4). The railroad must then transport another crew to the parked train to operate the train until it reaches its destination. Transportation to or from a parked train is called "deadhead" transportation.
5
In its 1969 amendments to the Act, Congress addressed the categorization of the time spent by crews in deadhead transportation. Section 61(b)(3)(C) includes as time on duty that "[t]ime spent in deadhead transportation by an employee to a duty assignment: Provided, [t]hat time spent in deadhead transportation by an employee from duty to his point of final release shall not be counted in computing time off duty...." The time spent in deadhead transportation from the parked train to the crew's designated terminal became known as "limbo time:" time which does not count against the twelve-hour limitation upon on-duty time nor contributes to the off-duty time that necessarily must accrue before an employee may return to duty. Unfortunately, the Act does not specifically address how time spent by an outlawed crew waiting for deadhead transportation must be categorized. Since the enactment of the 1969 amendments to the Act, the FRA has treated this waiting time as though it was time spent in deadhead transportation to the crew's designated terminal; the waiting time, thus, has been treated as limbo time. In addition, it appears that the Act, at least in the practical terms of the way it had been enforced since 1907, had never been construed to require that this waiting time be considered time on duty.
6
Things changed in 1992. In that year, the Ninth Circuit Court of Appeals rejected the FRA's interpretation of the Act in United Trans. Union v. Skinner, 975 F.2d 1421 (9th Cir.1992). Oddly, the Ninth Circuit held that the time spent waiting for deadhead transportation to a crew's designated terminal is time on duty, "based on the language of the HSA and on its consistent interpretation by the courts throughout its 85-year history." Id. at 1422. In an unusual move in that case, while it vigorously defended its own interpretation of the Act, the FRA declared itself willing to adopt and enforce the Ninth Circuit's interpretation of the Act, whatever its decision.
7
As a result of the Ninth Circuit's decision, the FRA notified, by way of a letter dated October 28, 1992, from its Chief Counsel, the Association of American Railroads that while the FRA has traditionally regarded the waiting time as limbo time, it no longer would. The letter stated that the FRA did not agree with the Ninth Circuit's rationale, but would adopt it and enforce it nationwide. The FRA implemented its new enforcement scheme on November 1, 1992, in those states that comprise the Ninth Circuit, and on January 1, 1993, in the rest of the country. Within sixty days of the nationwide effective date, the railroads filed in this court a petition for review pursuant to 45 U.S.C. Sec. 431(f) and 28 U.S.C. Sec. 2342(7). In addition, the railroads filed with the FRA a Petition for Interpretation of the Hours of Service Act on March 26, 1993.1 On April 8, 1993, the FRA published its new interpretation of the Act in the Federal Register, much of which was taken verbatim from the FRA's letter to the railroads. From this agency action, the railroads filed another petition for review on June 7, 1993. Finally, in response to the FRA's July 1, 1993, denial of the railroads' Petition for Interpretation, the railroads filed yet another petition for review from this agency action. All told, the railroads filed three petitions for review.
8
This description of this flurry of activity between the FRA and the railroads leads us to inquire whether we have jurisdiction to settle this dispute. Section 2342(7) of Title 28 confers exclusive jurisdiction upon the appropriate court of appeals to enjoin, set aside, suspend, or to determine the validity of all final agency actions with respect to federal railway safety laws. All that is required to invoke this jurisdiction is the filing of a petition in accordance with 28 U.S.C. Sec. 2344, which the railroads have done. Because the FRA's action is clearly within the ambit of the federal railway safety laws, the only possible issue with respect to our jurisdiction is whether the FRA's conduct constitutes a final agency action within the meaning of the statute.
9
Congress amended Sec. 2342 in 1992 to include subsection 7. Because of the recent vintage of this amendment, there is a lack of authority as to what constitutes a "final agency action" pursuant to 28 U.S.C. Sec. 2342(7). Because it appears that "final agency action" in this context carries the same meaning as it does in the Administrative Procedures Act, Sec. 10(c), 5 U.S.C. Sec. 704, we will apply the same standards applicable to the APA.
10
Several factors are significant in determining the finality of agency action, including: 1) whether the challenged action is a definitive statement of the agency's position; 2) whether the actions have the status of laws with penalties for noncompliance; 3) whether the impact on the aggrieved party is direct and immediate; and 4) whether immediate compliance was expected. Abbott Laboratories v. Gardner, 387 U.S. 136, 150-52, 87 S.Ct. 1507, 1516-17, 18 L.Ed.2d 681 (1967). After reciting these factors, the Supreme Court recently stated that "[t]he core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Franklin v. Massachusetts, --- U.S. ----, ----, 112 S.Ct. 2767, 2773, 120 L.Ed.2d 636 (1992).
11
In this case, there is no question that the FRA made absolutely clear that it would enforce the Act in accordance with its new interpretation, thereby compelling the railroads to alter their operations to comply with the FRA's directive or face stiff penalties for noncompliance. To answer the "core question," the agency completed its decisionmaking process (or at least the Ninth Circuit completed the FRA's decisionmaking for it) and the result directly affected the railroads. The FRA's communication of its change in interpretation of the Hours of Service Act constitutes a final agency action within the context of 28 U.S.C. Sec. 2342(7), and therefore, we have jurisdiction to hear this case and we grant the railroads' petitions for review.2
12
The first issue here is what deference, if any, we are to allow the FRA's new interpretation of the Act. The FRA argues that its interpretation of the Act is entitled to substantial deference pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, the interpretation of an ambiguous statute by an agency that is authorized by Congress to promulgate rules under the statute is to be upheld if it is a reasonable one. While the Hours of Service Act is not unambiguous, the FRA's interpretation is not entitled to the generous treatment afforded agency interpretations under Chevron.
13
Both the railroads and the FRA agree on an important point: that the FRA has not been granted rule-making authority by Congress. The Supreme Court made clear in Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-83, that only statutory interpretations by agencies with rule-making powers deserve substantial deference. The principal rationale underlying this deference is that in this context the agency acts as a congressional proxy; Congress develops the statutory framework and directs the agency to flesh out the operational details. But Congress typically does not permit the agency to run free in this endeavor; the Administrative Procedures Act establishes certain procedures that the agency must follow. Chief among them is the notice-and-comment provision of the APA. 5 U.S.C. Sec. 553. This rule-making process bears some resemblance to the legislative process and serves to temper the resultant rules such that they are likely to withstand vigorous scrutiny. It is this process that entitles the administrative rules to judicial deference.
14
In instances in which the agency does not have rule-making authority, however, we consider the agency's application of statutory provisions "interpretive rules." 5 U.S.C. Sec. 553(d)(2); see Doe v. Reivitz, 830 F.2d 1441, 1447 (7th Cir.1987). These interpretive rules are treated differently by the APA. They are exempt from the notice-and-comment requirements of rule-making. 5 U.S.C. Sec. 553(d)(2). In addition, interested parties do not have the right to petition the agency for review of its interpretive rulings as they do with respect to agency rules. See 5 U.S.C. Sec. 553(e).
15
The difference between the two types of agency action is manifest in this case. The FRA arbitrarily decided to abandon twenty-three years (at least) of statutory interpretation and adopted the Ninth Circuit's interpretation, even though it acknowledged that that court's rationale was flawed. The FRA's adoption of that position was not subject to the sort of process that ensures the legitimacy of the legislative or administrative rule-making process. Moreover, the railroads were not permitted to petition the FRA for review of its new interpretation; when they did, the FRA (properly) informed them that it was not required to respond. As a result, considering that the FRA made it clear that it was going to enforce this new interpretation, the railroad's only course of action was to seek judicial review under Title 28.
16
This is not to say that interpretive rules, while undeserving of substantial deference under Chevron, do not warrant any deference from a reviewing court. It simply means that we do not "rubber stamp" these interpretive rules. Pennington v. Didrickson, 22 F.3d 1376, 1383 (7th Cir.1994). Whatever degree of deference due these interpretive rules is dictated by the circumstances surrounding the agency's adoption of its statutory interpretation. "The weight given to an agency interpretation depends on many factors, including the validity of its reasoning, its consistency with earlier and later agency pronouncements and whether the administrative document was issued contemporaneously with the passage of the statute being interpreted." Doe v. Reivitz, 830 F.2d at 1447. In short, we look to "the thoroughness, validity, and consistency of the agency's reasoning." Orrego v. 833 West Buena Joint Venture, 943 F.2d 730, 736 (7th Cir.1991) (citing United States v. Markgraf, 736 F.2d 1179, 1184 (7th Cir.1984)).
17
The FRA's current interpretation of the Act reflects none of the benchmarks indicative of a "deliberate attempt of the agency to implement the will of Congress through the regulatory process." Pennington, 22 F.3d at 1383. By its own admissions, the characteristics of the FRA's current interpretation are completely opposite to those for which we seek. The current interpretation is inconsistent with twenty-three years of agency enforcement; notwithstanding its present plaintive cries that it has always considered this a close question, the FRA has always enforced the Act in a manner opposite that of its current position. In addition, this is an interpretation not contemporaneously made with the legislation or its relevant amendments, but twenty-three years later.
18
Finally, the FRA's current interpretation is not a thorough and reasoned interpretation. It was adopted for no other reason than because the Ninth Circuit disagreed with its prior interpretation. In its letter to the railroads and in its notice in the Federal Register, the FRA candidly admitted that it did not agree with the Ninth Circuit's reasoning. It cannot now rely on post hoc rationalizations regarding safety to justify its abrupt decision to alter its interpretation. This interpretation by the FRA, lacking the characteristics for which we look to determine the reasonableness of agency action, deserves no deference from this court.
19
A final point with respect to deference: Any deference that we might confer upon an agency interpretation of a statute must be to the agency's diligent study of the statute and the underlying activity it seeks to regulate. Here, however, the FRA is essentially asking that we defer to the Ninth Circuit's interpretation of the Act. It was the Ninth Circuit to which the FRA delegated its authority to interpret the Act when it declared that it was willing to accept whatever determination the Ninth Circuit made. And while we carefully consider the opinions of our sister circuits, we certainly do not defer to them. Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1123 (7th Cir.1987). Our duty is to independently decide our own cases, which sometimes results in disagreements with decisions of the other circuits.3 The FRA's abdication of its authority in this matter serves to deny the FRA the substantial deference it seeks.
20
Having dispensed with the issue of deference, we move on then to decide whether time spent waiting for deadhead transportation is time spent on duty. Despite the vigor with which this issue has been litigated both here and in the Ninth Circuit, we believe the statute itself resolves this issue quite clearly. Mindful that the purpose of the Act and its amendments is safety in operating trains, we hold that time spent waiting for deadhead transportation is not time on duty, but limbo time.
21
The statute does not address this issue in so many words, but it clearly dictates our holding. Section 61(b)(2) states that the Act applies only to employees "actually engaged in or connected with the movement of any train...." In addition, according to section 61(b)(3) of the statute, time on duty commences when a crew reports for duty and terminates when the crew is finally released from duty. Further, section 61(b)(3)(D) specifically states that time on duty is comprised of "time an employee is actually engaged in or connected with the movement of any train." The statute's treatment of on-duty time makes sense and comports with the purpose of the statute; the hazards of train operation occur when the train is moving.
22
During the time an outlawed crew waits for its deadhead transportation, however, it has no further operational duties.4 Obviously, this time spent waiting by the outlawed crew is not time the crew operates a moving train. Unfortunately, the resolution of this issue is not so simple. Remember, time spent in deadhead transportation to the parked train is considered on-duty time. Our evaluation of the time spent waiting for deadhead transportation from the train, then, is directed by the statute's emphasis on the operation of a moving train and the statutory scheme regarding this type of non-operational time.
23
After a crew completes its shift, each employee is required to receive a specified time during which he is able to rest before he is able to operate a train again. Thus, any time spent by an employee that denies him adequate opportunity for rest or that detracts from the rest that he has received must be treated in a way that enhances safety in operating a moving train. Simply put, in characterizing time spent by an employee not directly connected to the operation of a moving train, the critical consideration is how that time will affect the employee who must operate a moving train. Two specific aspects of the 1969 amendments to the Act highlight these principles.
24
As mentioned previously, section 61(b)(3)(C) states that time spent in deadhead transportation by an employee to a duty assignment is time on duty. This is time the employee cannot spend resting and which may ultimately impact his performance during the latter hours of his shift. This section also states that time spent in deadhead transportation from the train to the point of final release is not off-duty time. Nor is it time on duty; hence the tag limbo time. This time is treated in this way for two reasons. First and foremost, it is not on-duty time because the employee has no more operational responsibilities and this time, therefore, does not implicate railroad safety. Second, it is not off-duty time because the employee receives no legitimate opportunity to rest.
25
This analysis of section 61(b)(3)(C) compels our finding that time spent waiting for deadhead transportation is limbo time. In this scenario, the crew has been relieved of all operating duties. It may await transportation on the train or leave the train to await transportation elsewhere. The crew just might retire to a nearby saloon to pass the time. Wherever the outlawed crew waits, it is precluded from operating the train, technically by the statute and practically by the railroad, until the crew receives the requisite off-duty time. The crew's time spent waiting has absolutely no impact on its ability to operate trains. In this way, the waiting is analogous to time spent in deadhead transportation from a duty assignment and is not analogous to time spent in deadhead transportation to a duty assignment. Further, the strong analogy between the waiting time and the time actually spent in deadhead transportation dictates that the waiting time be treated as limbo time.
26
Having determined that the statute resolves the issue, the dispute as to how this time was treated prior to the amendments is unimportant. We digress, however, to briefly explain our understanding of its pre-1969 treatment because the Ninth Circuit framed its decision in that way. The Ninth Circuit set forth the issue as to whether Congress had intended to change the characterization of waiting time as the Act had been applied before the amendments. Skinner, 975 F.2d at 1426. It determined that waiting time had been considered on-duty time and based its holding on a slew of cases from the early part of this century. Id. We, however, read those cases as addressing the categorization of time spent by a railroad crew waiting for repairs to be made or for some other delay before resuming its duties of operating the train; these cases held that the crews were on duty during the time they spent waiting. The holdings in those cases are consistent with our reasoning here: that time spent waiting must be evaluated for its impact on the crew's ability to operate its train.
27
In addition, there was a substantial amount of testimony at Congressional hearings, offered by both union and railroad representatives, that this waiting time was never treated as on-duty time. So, it appears that time spent waiting for deadhead transportation from a train was treated the same before the amendments as immediately after. Our determination simply underscores the point that the FRA's change in interpretation of the statute reversed a long-held practice of deploying crews and imposed a significant hardship on the railroads without contributing to railroad safety.
28
The FRA contends that there are safety issues associated with categorizing waiting time as limbo time. If that is so, the appropriate vehicle for changing the Act is further legislation. Congress has spoken its mind on this matter, and if it changes its mind, it can amend the Act. But the FRA may not effectively amend the statute by way of an interpretive rule to comport with its views on how this waiting time impacts safety issues, whether they be real, illusory, or just plain convenient.
29
Finally, the FRA contends that by invalidating its interpretation, we will create an enforcement nightmare resulting from this split between circuits. That may be true, but there is nothing we can do about it. We can only remind the FRA that it is entrusted with the enforcement of the Hours of Service Act and any decision it makes to refrain from prosecuting violations of the Act is left to its absolute discretion. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985) (collecting cases).
30
In conclusion, we find that the FRA's communications of its interpretation of the Hours of Service Act constitute a final agency action pursuant to 28 U.S.C. Sec. 2342(7), but conclude that it is not entitled to any deference from this court. Further, we hold that, according to the Act, time spent waiting for transportation to a designated terminal by a train crew that has been relieved of all operating duties of the train to which it is assigned is not time on duty, but limbo time. Accordingly, we GRANT the railroads' Petitions for Review and VACATE the FRA's orders.
31
EASTERBROOK, Circuit Judge, with whom POSNER, Chief Judge, and MANION, Circuit Judge, join, concurring.
32
When judges speak of "deference" to an administrative decision or interpretation, they may mean any of three situations:
33
. Delegation. When Congress has given an agency the power to adopt legal norms via formal rule-making or administrative adjudication, the court must accept action within the scope of the delegated power the same way it accepts legislation.
34
. Respect. When the statute tells the executive branch to achieve a goal, the choices made in pursuit of that objective are political in nature. The President rather than a judge decides how to execute the laws, and a court therefore must respect the discretionary choices a coordinate branch of government has made in the course of implementation.
35
. Persuasion. On a "pure" question of law, an agency's views may persuade when they cannot compel. To the extent statutory text and structure are conclusive on the issue of meaning, an agency may persuade by illuminating how the pieces of the statute fit together. To the extent other factors (collectively "legislative intent") matter, the agency may have better access to indicators of this intent than do judges.
36
Using one word for three distinct subjects breeds confusion. Justice Breyer believes that it has done worse--that it sometimes has led courts to give more force to an agency's legal arguments (the "persuasion" category) than to the agency's choices about wise policy (the "respect" category), reversing the proper role of the political and judicial branches. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin.L.Rev. 363 (1986).
37
Today's case shows how vocabulary affects analysis. The Federal Railway Administration has not been delegated either rulemaking or adjudicative power over the subject of hours of service. It therefore cannot demand obedience to its law-making choices after the fashion of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Adams Fruit Co. v. Barrett, 494 U.S. 638, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990). But it does oversee implementation of the wages and hours laws (and much else of concern to railroads and their workers), and therefore not only may have persuasive thoughts about the interpretation of the laws but also may be entitled to make some choices about implementation.
38
When an agency seeks to persuade us that its legal analysis is correct, we pay attention to whether it has long-standing, consistent views, see Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), for a legal interpretation adopted soon after the statute's enactment may be the best evidence of the meaning the words carried in the legal profession at the time. Alterations in the legal and cultural landscape may make the meaning hard to recover; a contemporaneous understanding captures much of value, while changes of position may reflect only a shift in views of sound policy and therefore do not assist in ascertaining the original meaning. See West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100-02 & n. 7, 111 S.Ct. 1138, 1147-49 & n. 7, 113 L.Ed.2d 68 (1991). When, however, an agency offers a view about wise administration, a change in perspective may show that the agency is sensitive to the contemporary economic context--the railroad industry, for example, has undergone a revolution in the last 30 years--and therefore is doing its job. Applying the word "deference" to both respect and persuasion implies that consistency of administrative views always cuts in favor of the agency's position. Yet consistency ought to matter only when the agency is seeking to persuade--and even then only when the consistent interpretation offers us a view into the understanding of the original interpretative community. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 259-60, 111 S.Ct. 1227, 1236-37, 113 L.Ed.2d 274 (1991) (Scalia, J., concurring); Mayburg v. Secretary of HHS, 740 F.2d 100, 105-07 (1st Cir.1984) (Breyer, J.). See also Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash.U.L.Q. 351 (1994); Cass R. Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2101-04 (1990).
39
Taking "deference" as a unitary concept, my colleagues observe that the FRA has changed positions, and they conclude that its position is therefore not entitled to deference. I look at this differently. If the question is the way 45 U.S.C. Sec. 61(b) treats deadhead transportation at the end of duty, then consistency is informative--and the FRA has been consistent. Ever since 1907, when the Hours of Service Act came into being, the FRA and its predecessors have believed that time between the end of work and arrival at a place of rest does not count as time on duty. The agency adhered to this position immediately after the 1969 amendments and has not wavered. The published statement that we review, 58 Fed.Reg. 18163-66 (Apr. 8, 1993), reiterates this position, stating that the FRA disagrees with the legal analysis of United Transportation Union v. Skinner, 975 F.2d 1421 (9th Cir.1992). To the extent the question at hand is "Does 45 U.S.C. Sec. 62(b) treat time after the crew is relieved of work on the train as time 'on duty'?", the FRA has been consistent; and to the extent stability lends persuasive force to its position, we should be falling into line.
40
After reaching a judgment about the interpretation of the Hours of Service Act, the FRA reached a second judgment--about the desirability of uniform application. It told the ninth circuit, announced in the Federal Register, and now has told us, that a single national rule is superior given the integrated nature of the national railroad system. Once again the agency has been consistent. Its views about the benefits of uniformity induced it to put the ninth circuit's interpretation into force nationwide, despite its belief that the ninth circuit got the law wrong. If the combination of the two can be called a flip-flop (on the ground that the FRA now is administering the Act differently), the change is attributable to the malleable legal landscape. Agencies ought to respond to legal and economic changes rather than to plow on as if nothing had happened. In making a judgment that a uniform rule is preferable to subjecting the railroads (and perhaps particular crews) to multiple legal schemes, the agency has adopted a position on sound administration. We must decide whether this is the type of decision that deserves our respect.
41
To change the terminology, the FRA decided to acquiesce in the ninth circuit's interpretation. It thought that litigation should come to an end without the complicated dance that generates a conflict among the circuits and so propels the subject onto the Supreme Court's agenda. The FRA believes that on this subject it is "more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). Courts regularly denounce agencies for not following judicial interpretations, so it is a little surprising to see the FRA boxed about the ears for complaisance. Agencies stick to their guns when they believe the difference in legal positions or practical consequences important; but if they think that the arguments are closely balanced or the practical consequences of the two positions similar, they may conclude that one case is enough--especially if they think that the Solicitor General would not deem the subject sufficiently important to justify a petition for certiorari. If the Solicitor General declines to seek, or the Supreme Court declines to grant, further review, then nonacquiescence may yield entrenched differences among the circuits. We know from United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), that the executive branch need not follow a circuit's interpretation, even within that circuit's borders. See also Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679 (1989); cf. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L.Rev. 43 (1993). But an agency prudently may decide to acquiesce, to reduce uncertainty and the costs of both the legal process and compliance with multiple standards, a particular problem for firms with peripatetic operations.
42
When an agency declines to acquiesce, a court does not "defer" to this decision. A person aggrieved by the agency's decision to fight like a tiger is entitled to judicial review. The court construes the statute after an independent inquiry, and the agency prevails only if it has the stronger argument on the merits. Just so with acquiescence. A party aggrieved by the agency's decision to throw in the towel may protest and obtain an independent decision. Acquiescence and nonacquiescence are mirror images when each produces winners and losers in the private sector. If courts review nonacquiescence decisions without a thumb on the scale in favor of the agency's choice, they must review acquiescence decisions independently. Mendoza itself supplies a strong argument: additional litigation may lead to a conflict among the circuits and review by the Supreme Court with the benefit of additional legal views that increase the probability of a correct disposition. Today's decision may well lead the Supreme Court to address the question. An agency may be wise in thinking that national uniformity is highly desirable. When acquiescence affects only the public fisc (when, for example, the IRS accepts a decision that reduces collections), the agency's decision is dispositive; it is an exercise of the President's power to execute the laws. When private rights exist on both sides, the agency's decision one way or the other on acquiescence is contestable in order to hold the balance true among the private interests.
43
Whenever this court decides whether to create a conflict among the circuits, it makes a decision about the benefits of uniformity versus accuracy no different in principle or effect from the decision the FRA made about the Hours of Service Act. When the Supreme Court decides to let a conflict simmer, or to grant plenary review, it makes a similar decision. Nationwide implementation of the decision of the first circuit to encounter a question is not, therefore, the sort of executive prerogative to which a court owes the respect that it must accord the executive's decision about sound administration of the law. It is a subject on which judges are free to exercise their own judgment, when a party aggrieved by the agency's decision complains. I therefore agree with my colleagues that we need not "defer" to the FRA's acquiescence position. We ought, however, to grant some persuasive force to its consistent view of the meaning of the law. This brings us out in the same place, and, with a few exceptions, for the same reasons. I therefore join not only the court's judgment but also its opinion, except for the discussion of deference at pages 441-43.
*
The Honorable Walter J. Cummings did not participate in the argument or decision in this case
1
The railroads apparently modeled their Petition after the type described in 5 U.S.C. Sec. 553(e). As we shall soon see, agencies such as the FRA, who promulgate only "interpretive rules," are not subject to such Petitions
2
It is not necessary that we parse out which of the three agency communications of its decision to change its interpretation of the Act constitutes a "final agency action." The railroads timely filed petitions in response to all three agency missives, each of which presents the sole issue in this case. Obviously, the FRA's publication of its decision in the Federal Register was the communication of the most official character, but this publication, as well as the first letter to the railroads and the letter rejecting the railroads' Petition for Interpretation, demonstrate that the agency had completed its decisionmaking. Thus, the jurisdictional dictates are clearly satisfied
3
United States v. Coleman, 38 F.3d 856 (7th Cir.1994) (in conflict with United States v. Carillo, 991 F.2d 590 (9th Cir.1993)), and United States v. Michelle's Lounge, 39 F.3d 684 (7th Cir.1994) (in conflict with United States v. Consiglio, 866 F.2d 310 (9th Cir.1989)), are but two recent examples of disagreements with the Ninth Circuit
4
We do not address in this case the situation in which an outlawed crew is called upon to perform additional, non-operational, duties during and after its twelve-hour shift. The statute accounts for that circumstance; in instances in which additional duties are commingled with those of operating a train, the entire time spent by the crew is considered time on duty. 45 U.S.C. Sec. 62(b)
|
578 N.W.2d 692 (1998)
228 Mich. App. 336
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Brian Andre WARREN, Sr., Defendant-Appellant.
Docket No. 190133.
Court of Appeals of Michigan.
Submitted November 4, 1997, at Grand Rapids.
Decided February 27, 1998, at 9:20 a.m.
Released for Publication June 8, 1998.
*693 Before MARKEY, P.J., and MICHAEL J. KELLY and WHITBECK, JJ.
WHITBECK, Judge.
Defendant appeals as of right his convictions by jury of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, two counts of first-degree criminal sexual conduct (CSC I), M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c), first-degree home invasion, M.C.L. § 750.110a(2); M.S.A. § 28.305(a)(2), assault and battery, M.C.L. § 750.81; M.S.A. § 28.276, kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and the unlawful driving away of a motor vehicle (UDAA), M.C.L. § 750.413; M.S.A. § 28.645. Defendant was sentenced to life imprisonment without the possibility of parole for the felony-murder conviction, thirty to sixty years' imprisonment for each of the CSC I convictions, ten to twenty years' imprisonment for the first-degree home invasion conviction, ninety days' imprisonment for the assault and battery conviction, thirty to sixty years' imprisonment for the kidnapping conviction, and three to five years for the UDAA conviction. Defendant's conviction of home invasion and the sentence for the home invasion conviction were subsequently vacated because that offense was used by the prosecution to provide the basis for the felony-murder charge. We affirm.
*694 The record in this case reflects that defendant and his wife engaged in an escalating argument on the evening of January 18,1995, at their apartment in Battle Creek. Eventually, at approximately midnight, defendant's wife and their two children went with defendant's mother-in-law, Claudette Powell, to Powell's residence, also in Battle Creek. In a statement given to the Battle Creek police on January 19, 1995, defendant stated that, before his wife, the two children, and Powell arrived at Powell's residence, he had gone to that residence "and busted the side window and went in and went downstairs." Defendant also stated that he then hid in the downstairs area of the home.
According to defendant, during the early morning hours of January 19, 1995, the following occurred:
Then she [Powell] came down and she started beating me with that instrument she had, the mop or whatever it was, started beating me with it. And I grabbed her and we was tussling around and stuff and she said[,] "Call the police, call the police" and I pushed and then she did like this and I looked (inaudible), I looked and she feel [sic], I was like "Oh, my God" and then I run up the stairs, I said "No," you know, and she was, I repeat she was not dead, I did not kill her, she was not dead, indeed she was bleeding, I seen her blood on the knife, and I said" Oh, my God."
An autopsy conducted on Powell's body revealed numerous sharp-force wounds, in the nature of cuts or stabs, and one blunt-force wound to her body. The expert who conducted the autopsy stated that the sharp-force wounds were inflicted by some type of bladed instrument, and could have been caused by a knife found in the victim's kitchen.
Defendant's wife testified that defendant then beat and sexually assaulted her. Defendant stated that, after two or three hours during which he and his wife were "making love," he heard Powell "moving around" in the downstairs area and that he "went down there and ... looked," but that he refused to let his wife go downstairs to see her mother. Defendant ultimately left Powell's residence sometime before noon on January 19, 1995, after tying his wife's hands and feet together with shoestrings and gagging her mouth.[1] After defendant left Powell's residencetaking and using Powell's automobiledefendant's wife escaped to a neighbor's house. Ultimately Powell's body was found in her basement, lying in a pool of blood.
I
Defendant first argues that the trial court abused its discretion in allowing defendant's wife to testify regarding the charges of murder, home invasion, and UDAA. Defendant contends that this testimony was prohibited by the spousal privilege.
The admission of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v. Lugo, 214 Mich.App. 699, 709, 542 N.W.2d 921 (1995). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made. People v. McAlister, 203 Mich.App. 495, 505, 513 N.W.2d 431 (1994).
The spousal privilege is contained in M.C.L. § 600.2162; M.S.A. § 27A.2162 and states in pertinent part:
A husband shall not be examined as a witness for or against his wife without her consent or a wife for or against her husband without his consent, except as follows:
* * * * * *
(d) In a cause of action that grows out of a personal wrong or injury done by one to the other....
Defendant argues that two of the crimes against Powell did not "grow out of a personal wrong or injury" done by him to his wife, because those crimesmurder and home invasion[2] occurred before the crimes against *695 his wife. Defendant cites People v. Love, 425 Mich. 691, 709, 391 N.W.2d 738 (1986) (Williams, C.J., concurring) to the effect that, "[s]omething cannot `grow out of' something that did not exist."
We believe defendant's reliance on Love is misplaced. The crimes of assault and battery, CSC, and kidnapping constitute personal wrongs and injuries to defendant's wife. Therefore, the trial court properly admitted the testimony of defendant's wife regarding the circumstances of the commission of these crimes. The fact that such testimony may also have implicated defendant in the crimes of murder, home invasion, and UDAA against Powell does not make such testimony inadmissible. A party should "be able to give the jury an intelligible presentation of the full context in which disputed events took place." People v. Sholl, 453 Mich. 730, 741, 556 N.W.2d 851 (1996). In this regard, evidence of other criminal acts is admissible when so blended or connected with the charged crime that proof of the other criminal act explains the circumstances of the charged crime. Id. at 742, 556 N.W.2d 851.
In this case, while the testimony of defendant's wife about hearing Powell scream from the basement and then seeing defendant coming up the stairs with a knife tended to implicate defendant with regard to the murder and home invasion charges, it also provided important background information regarding why defendant's wife did not provide further resistance to defendant when he physically and sexually assaulted her and confined her within Powell's home. Similarly, the testimony of defendant's wife that defendant took the keys to Powell's automobile and that she then heard an automobile drive away implicated defendant in committing UDAA. However, it also provided an explanation for why defendant bound and gagged his wife, which, in turn, provided strong evidence of secret confinement in connection with the kidnapping charge. Accordingly, we conclude that the trial court did not abuse its discretion by admitting the testimony from defendant's wife that, in addition to providing relevant evidence regarding the charged crimes that constituted personal wrongs against defendant's wife, also constituted evidence to support the home invasion, murder, and UDAA charges.
II
Defendant argues that there was insufficient evidence that his wife had been secretly confined to support his kidnapping conviction. Specifically, defendant contends that because his wife's relatives, as well as the police, were aware of his wife's location during the time of her confinement, her confinement was not secret.
In a criminal case, due process requires that a prosecutor introduce evidence sufficient to justify a trier of fact in concluding that the defendant is guilty beyond a reasonable doubt. People v. Fisher, 193 Mich.App. 284, 287, 483 N.W.2d 452 (1992). In reviewing a sufficiency of the evidence question, this Court reviews the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could conclude that the elements of the crime were proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). When deciding this issue, this Court should not interfere with the jury's role of determining the weight of the evidence or the credibility of the witnesses. Id. at 514, 489 N.W.2d 748.
A person can be convicted of kidnapping if it is proved beyond a reasonable doubt that the person wilfully, maliciously, and without lawful authority forcibly or secretly confined or imprisoned any other person within this state against the other person's will. M.C.L. § 750.349; M.S.A. § 28.581.
In People v. Jaffray, 445 Mich. 287, 309, 519 N.W.2d 108 (1994), the Michigan Supreme Court provided the following definition of "secret confinement" kidnapping:
[T]he essence of "secret confinement" as contemplated by the statute is deprivation of the assistance of others by virtue of the victim's inability to communicate his predicament. "Secret confinement" is not predicated solely on the existence or nonexistence of a single factor. Rather, consideration of the totality of the circumstances is required when determining whether the confinement itself or the location of the confinement was secret, thereby depriving the victim of the assistance of others. That others may be suspicious or *696 aware of the confinement is relevant to the determination, but is not always dispositive.
In People v. Johnson, 171 Mich.App. 801, 805-806, 430 N.W.2d 828 (1988), the defendant argued that the victim's confinement could not have been secret because at least one other person saw the defendant take the victim into his apartment and, therefore, others searching for the victim could have traced her to the defendant's apartment. We held that secret confinement can be shown where those who know where the victim is located are unaware that the victim is, in fact, a victim of kidnapping. Id.
Here, defendant's sister-in law, Theresa Harris, knew that defendant's wife was spending the night at Powell's residence. Further, the police had been to that residence in response to a report of a break-in and therefore were also aware that defendant's wife was spending the night there. Thus, the location of defendant's wife was certainly no secret. However, before her escape, no one outside the home was aware that defendant's wife was at any time confined by defendant. Therefore, as in Johnson, although the location of defendant's wife at the time of the kidnapping was not a secret, no third parties were aware that she was the victim of a kidnapping or that she was being confined at all.
Further, a consideration of the totality of the circumstances reveals that defendant's wife was deprived of the ability to communicate her plight to others. Defendant's wife testified that the defendant beat and sexually assaulted her in Powell's residence, barricaded the door, prohibited her from using a telephone, and ultimately bound and gagged her. Therefore, sufficient evidence was presented to establish that defendant had secretly confined his wife, satisfying the requisite elements of kidnapping.
III
Defendant contends that the trial court erred in permitting the jury to consider home invasion as an underlying felony to support a conviction of first-degree felony murder. Defendant preserved this issue below by moving for a directed verdict on the felony-murder charge on the ground that home invasion is not an enumerated felony in the felony-murder statute. When ruling on a motion for a directed verdict, the trial court must consider the evidence presented by the prosecutor up to the time the motion was made in the light most favorable to the prosecution and determine whether a rational trier of fact could find the essential elements of the charged crime were proved beyond a reasonable doubt. People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993). When reviewing a trial court's ruling on a motion for a directed verdict, this Court tests the validity of the motion by the same standard as the trial court. People v. Daniels, 192 Mich.App. 658, 665, 482 N.W.2d 176 (1992).
Here, defendant was charged with first-degree felony murder. On January 19,1995, the date of the charged offenses, and on January 20,1995, the date of the information charging defendant with home invasion, Michigan's first-degree murder statute provided in pertinent part:
Murder which is ... committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life. [M.C.L. § 750.316; M.S.A. § 28.548 (emphasis supplied).][3]*697 Defendant must be judged by the statute as it existed at the time of the offense. People v. Whetstone, 119 Mich.App. 546, 555, 326 N.W.2d 552 (1982).
The elements of first-degree felony murder are:
(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in M.C.L. § 750.316; M.S.A. § 28.548. [People v. Turner, 213 Mich.App. 558, 566, 540 N.W.2d 728 (1995) (emphasis supplied).]
Defendant argues that because, at the time of his conviction, home invasion was not a crime specifically enumerated under the first-degree murder statute, the trial court erred in submitting the charge of felony murder to the jury. On the date of the offenses, the first-degree murder statute listed breaking and entering of a dwelling as an enumerated offense. Also on the date of the offenses (and currently), M.C.L. § 750.110a; M.S.A. § 28.305(a) (the home invasion statute) provided as follows:
(2) A person who breaks and enters a dwelling with intent to commit a felony or a larceny in the dwelling or a person who enters a dwelling without permission with intent to commit a felony or a larceny in the dwelling is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
(3) A person who breaks and enters a dwelling with intent to commit a felony or a larceny in the dwelling or a person who enters a dwelling without permission with intent to commit a felony or a larceny in the dwelling is guilty of home invasion in the second degree. [Emphasis supplied.]
Thus, under the plain language of the home invasion statute, the elements of home invasion include either (1) breaking and entering a dwelling with the intent to commit a felony or larceny in the dwelling or (2) entering a dwelling without permission with the intent to commit a felony or larceny in the dwelling. The former offense of breaking and entering a dwelling with intent to commit a felony or larceny required breaking and entering an occupied dwelling. People v. Ferguson, 208 Mich.App. 508, 510-511, 528 N.W.2d 825 (1995). Therefore, the home invasion offenses include, but are not limited to, conduct covered by the former offense of breaking and entering a dwelling with intent to commit a felony or larceny.[4]
With respect to the charge of felony murder, the trial court gave the following instruction:
Now, to prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
First, that the Defendant caused the death of Claudette Powell. That is, that Claudette Powell died as a result of being stabbed with a knife.
Second, that the Defendant had one of these three states of mind: He intended to kill or he intended to do great bodily harm to Claudette Powell or he knowingly created a very high risk of death or great bodily harm knowing that death or such harm was the likely result of his actions.
Third, that when he did the act that caused the death of Claudette Powell, the Defendant was committing the offense of home invasion.
For the crime of home invasion, the prosecutor must prove each of the following elements beyond a reasonable doubt:
First, that the Defendant broke into a dwelling. It does not matter whether anything was actually broken, however some force must have been used. Opening a door, raising a window, and taking off a *698 screen are all examples of enough force to count as a breaking. Entering a dwelling through an already open door or window without using any force does not count as a breaking.
Second, that the Defendant entered the dwelling. It does not matter whether the Defendant got his entire body inside. If the Defendant put any part of his body into the dwelling after the breaking that is enough to count as an entry.
Third, that when the Defendant entered the dwelling, he intended to commit the offense of assault with intent to do great bodily harm less than murder and/or the offense of murder.
Fourth, that when the Defendant entered, was present in or was leaving the dwelling, either of the following circumstances existed: A, he was armed with a dangerous weapon, or B, another person was lawfully present in the dwelling.
And fourth, for first degree felony murder, that the killing was not justified, excused, or done under circumstances that reduce it to a lesser crime.
Given the trial court's instructions, there can be no doubt that when the jury convicted defendant of felony murder, it found that he committed the underlying felony of home invasion, as defined by the trial court. The trial court's instructions to the jury required the jury to find that defendant committed a breaking and entering of a dwelling with the intent to commit one of two felony offenses in order to find that he committed "home invasion."[5] The precise issue is, thus, whether commission of home invasion, with a breaking, constitutes "breaking and entering of a dwelling" under the first-degree murder statute. Defendant argues that breaking and entering a dwelling was an enumerated felony at the time of his offense while home invasion was not and that, consequently, the trial court's ruling[6] and instruction were in error. Given the trial court's instructions, however, there can be no reasonable doubt that the jury found that defendant committed a breaking and entering of a dwelling.
Defendant cites People v. Young, 418 Mich. 1, 340 N.W.2d 805 (1983), in support of his contention that the crime of home invasion must be specifically enumerated in the felony-murder statute in order for it to be the underlying felony supporting a conviction of felony murder. At the time of the 1978 murder offense considered in Young, the first-degree murder statute included "burglary" as an enumerated offense but did not include breaking and entering of a dwelling. Accordingly, the Young Court concluded that at the time of that murder offense, for first-degree felony murder to be based on breaking and entering of a dwelling, the prosecution had to prove the elements of common-law burglary, which included proof that the breaking and entering happened "in the nighttime" with the intent to commit a felony. The Court held that proving breaking and entering alone was not enough. See id. at 16-17, 340 N.W.2d 805.
Here, we have the reverse situation. The jury concluded that defendant broke into and entered a dwelling. In short, in finding that a "home invasion" as defined by the trial court had occurred, the jury also found that a "breaking and entering of a dwelling" occurred as required by the first-degree murder statute for conviction of felony murder. Rather than finding this case controlled by Young, we find it analogous to People v. McDonald, 409 Mich. 110, 293 N.W.2d 588 (1980). The first-degree murder statute, in *699 effect on the date of the offense committed by the defendant in McDonald (June 27, 1976), provided in part that a murder committed in the perpetration or attempted perpetration of a "rape" constituted first-degree murder. Id. at 116-117, 293 N.W.2d 588.[7] However, the carnal knowledge statute addressing rape had been repealed and effectively replaced by the statute defining and prohibiting criminal sexual conduct. Id. at 116, 293 N.W.2d 588. The Michigan Supreme Court rejected the defendant's argument that repeal of the carnal knowledge statute precluded a conviction of first-degree felony murder based on the commission of a murder during the perpetration or attempted perpetration of a rape:
Defendant argues that because the former statute punishing rape was repealed and replaced by the present statute punishing criminal sexual conduct the offense known as rape no longer exists. As a result, the crime of first-degree murder based on rape could not properly be charged in an information. We are not persuaded by this argument.
We find the Legislature intended that the repealed carnal knowledge statute define rape for purposes of the first-degree murder statute. The conduct proscribed by the former carnal knowledge statute upon which a first-degree murder conviction was based is also presently prohibited under the criminal sexual conduct act. Consequently, the Legislature did not intend to abrogate such conduct as an aggravating circumstance required for first-degree murder. Rape, as formerly defined under the carnal knowledge law, survives for purposes of prosecution under the first-degree murder statute. [Id. at 116, 293 N.W.2d 588 (emphasis supplied).]
We similarly conclude that when the Legislature effectively replaced the former offense of breaking and entering an occupied dwelling with intent to commit a felony or larceny with the more broadly defined offense of home invasion, breaking and entering a dwelling survived as enumerated conduct that could form the basis of a first-degree felony-murder conviction under the version of the first-degree murder statute in force at the time of defendant's crimes.
The McDonald Court further explained:
Accordingly, at the time the first-degree murder statute was last recodified in 1931, the conduct historically known as rape was prohibited by the carnal knowledge statute. As it exists in the first-degree murder statute, we are convinced that the term "rape" was intended to encompass the course of conduct originally proscribed at common law and subsequently codified and slightly altered by various statutes through the years.
Even though the provisions of the carnal knowledge statute were replaced by the present criminal sexual conduct statute, the first-degree murder statute and its included designation of rape were in no way altered. Absent express legislative action to amend the first-degree murder statute, the definition of "rape" as the proscribed conduct used by trial judges since the last codification of felony murder in 1931 continued in force.
Defendant was not tried and convicted of rape, but of first-degree murder committed in the perpetration or attempted perpetration of rape. The new criminal sexual conduct statute, while enlarging the scope of sexual activity proscribed by its terms, continues the historic prohibition of the conduct for which defendant was prosecuted under the first-degree murder statute. [McDonald, supra at 118-119, 293 N.W.2d 588 (emphasis supplied).]
Thus, we conclude that defendant did not have to be convicted of "breaking and entering of a dwelling" in order to be convicted of first-degree felony murder based on the commission of a murder during the perpetration or attempted perpetration of a breaking and entering of a dwelling. As in this case, conduct enumerated in the first-degree murder statute considered in McDonald was included in the scope of a new criminal statute passed after the pertinent version of the first-degree murder statute. The new criminal statute, however, also included additional conduct not *700 enumerated within the first-degree murder statute.
In McDonald, the criminal sexual conduct statute included conduct by males against females that constituted rape, but also included certain additional acts that could be committed by females. See McDonald, supra at 118, 122-123, 293 N.W.2d 588. Here, the home invasion statute similarly prohibits both breaking and entering a dwelling with intent to commit a felony or larceny and entering a dwelling without permission, even without breaking, with intent to commit a felony or larceny. As discussed above, the trial court's instructions to the jury required the jury to find that defendant committed a breaking and entering of a dwelling with intent to commit a felony, specifically, the felony of murder or assault with intent to do great bodily harm, as a prerequisite to convicting him of first-degree felony murder. Accordingly, we conclude that defendant's conviction of first-degree murder should not be disturbed on the basis of this issue because his conviction of first-degree felony murder was predicated on the commission of conduct enumerated in the first-degree murder statute as in force at the time of defendant's crimes.
IV
Defendant next argues that his of CSC I convictions should be vacated because his conviction of home invasion was vacated.
Defendant was convicted of two counts of CSC I pursuant to M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c) (sexual penetration in circumstances involving commission of another felony). Defendant's CSC I convictions were based on the underlying felony of home invasion. Defendant was also convicted of both felony murder, based on the underlying felony of home invasion, and home invasion. At sentencing, the trial court vacated defendant's sentence for home invasion on the ground that it furnished the predicate offense upon which the felony-murder conviction was based. Convictions of both felony murder and the underlying felony offend double jeopardy protections. People v. Gimotty, 216 Mich.App. 254, 259, 549 N.W.2d 39 (1996). When a defendant is erroneously convicted of both felony murder and the underlying felony, the proper remedy is to vacate the conviction and sentence for the underlying felony. Id. at 259-260, 549 N.W.2d 39. Therefore, the trial court properly vacated defendant's home invasion conviction.[8]
Defendant contends that the vacating of his home invasion conviction "left no underlying felony upon which to support the CSC conviction." We disagree. In an analogous circumstance, conviction of possession of a firearm during the commission of a felony requires as an element that the defendant committed or attempted to commit a felony, but conviction of the underlying felony is not a prerequisite to conviction of felony-firearm. People v. Burgess, 419 Mich. 305, 310, 353 N.W.2d 444 (1984). Similarly, the criminal sexual conduct statute does not require that a person be convicted of the underlying felony in order to be convicted of CSC I in circumstances involving the commission of another felony. In convicting defendant of the CSC I charges, the jury necessarily found as a matter of fact that he committed acts of sexual penetration in circumstances involving the commission of another felony. It is immaterial whether defendant was subject to conviction for the other felony.
V
Defendant also argues that his statements made to police on January 19, 1995, were involuntary and should have been suppressed. Defendant claims that he was under the influence of alcohol (and Tylenol 3) when he made these statements and also that he was suffering from psychological disorders. Further, defendant contends that because his counsel failed to object to the admission of such statements, he was denied effective assistance of counsel.
These arguments are specious and unsupported by the record. This Court's review is generally limited to the record of the trial court, and it will generally allow no enlargement *701 of the record on appeal. Amorello v. Monsanto Corp., 186 Mich.App. 324, 330, 463 N.W.2d 487 (1990). The record does not support defendant's claim that his statements to the police were made involuntarily. Therefore, defendant has not established error requiring reversal.
Further, the record contains no evidence that defendant's statement to the police was involuntary. Therefore, we have no basis to conclude that any motion by defendant's counsel to suppress the statement would have had merit. Defense counsel is not required to make useless motions. People v. Tullie, 141 Mich.App. 156, 158, 366 N.W.2d 224 (1985). Defendant has not established that he received ineffective assistance of counsel.
Affirmed.
NOTES
[1] Defendant stated that his wife "wanted me to tie her up" so that she "couldn't call the police on me."
[2] There is no question that the crime of UDAA occurred after the crimes against defendant's wife. Nevertheless, defendant argues in portions of his brief that his wife should not have been allowed to testify about the UDAA charge.
[3] Explicit reference to the crime of home invasion was added to the first-degree murder statute by an amendment that took effect April 1, 1996, after the date of defendant's conviction and sentence. The first-degree murder statute now includes the following provisions:
(1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life:
* * * * * *
(b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping. [M.C.L. § 750.316; M.S.A. § 28.548; (emphasis supplied).]
[4] The portion of M.C.L. § 750.110; M.S.A. § 28.305 defining the offense of breaking and entering a dwelling with intent to commit a felony or larceny was removed effective October 1, 1994, the same date that the home invasion statute, M.C.L. § 750.110a; M.S.A. § 28.305(a), went into effect.
[5] The trial court effectively precluded the jury from convicting defendant of home invasion based on the "entering without permission" prong of home invasion, which does not require proof of a breaking.
[6] Defendant objected to the submission of jury instructions regarding the theory of felony murder. The trial court denied defendant's motions, providing the following reasoning:
The Court has concluded since I intend to give an instruction on felony murder that the felony murder statute does now includeby reference to the statute in general, the term breaking and entering, or the new offense of home invasion, so that in a case of this nature, the Court can properly instruct on felony murder even though there has been a change in the nomenclature, I suppose, of the offense, but it's the same statute, and [I] think that is sufficient indication of what the legislature was talking about breaking and entering, or home invasion, whatever it may be called. But the offense they were talking about is a specific offense, specific statute, and very easily identified, okay?
[7] As set forth above, the first-degree murder statute no longer includes the term "rape," but rather provides that murder committed in the perpetration or attempted perpetration of first-degree or third-degree criminal sexual conduct constitutes first-degree murder.
[8] Although not necessary to disposition of this issue, we note that conviction of both CSC I based on sexual penetration under circumstances involving the commission of another felony and the underlying felony does not violate constitutional protections against double jeopardy. People v. Robideau, 419 Mich. 458, 466, 355 N.W.2d 592 (1984).
|
226 B.R. 364 (1998)
In re Mozelle E. JOHNSON, Appellant,
v.
ASSET MANAGEMENT GROUP, LLC, Appellee.
No. CIV. A. MJG-98-2049.
United States District Court, D. Maryland, Northern Division.
September 30, 1998.
Joseph V. Delclos, Baltimore, MD, for Appellant.
William M. Savage, Shapiro & Burson, Faixfax, VA, for Appellee.
GARBIS, District Judge.
The Court has before it Appellant Mozelle E. Johnson's appeal from the United States Bankruptcy Court for the District of Maryland's Order dismissing the Debtor's Objection to the Amended Proof of Claim and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary.
I. BACKGROUND
In June of 1995, Mozelle E. Johnson obtained a $55,000 home loan. The lender secured the loan with a first deed of trust on *365 Ms. Johnson's home and primary residence. Six months later Ms. Johnson obtained a home improvement loan from Homefix Corporation for $8000. Homefix Corporation, in turn, received a second deed of trust encumbering Ms. Johnson's residence.
By August 1997, Ms. Johnson had defaulted on the first mortgage. On August 12, 1997, ContiMortgage, now in possession of the first mortgage, sent Ms. Johnson a Notice of Default and Acceleration and informed her that she now owed over $57,000. In September 1997, a housing counselor appraised the Johnson home at $48,000. Ms. Johnson then sought protection under the bankruptcy laws and filed under Chapter 13 on October 1, 1997.
Within two weeks, Asset Management Group, LLC ("Asset Management"), now the holder of the home improvement lien, filed a Proof of Claim, asserting a secured claim against the bankruptcy estate. As amended, Asset Management's claim totaled $10,226.57. Ms. Johnson filed an Objection to the Proof of Claim.
The parties agree to the relevant facts. Ms. Johnson does not dispute the amount of her debt to Asset Management. Also the parties have stipulated that the value of Ms. Johnson's residence is less than the balance owed on the first deed of trust.
The only dispute involves the legal consequence that flows from the agreed facts.[1] According to the United States Bankruptcy Code,[2] 11 U.S.C. § 506(a), Asset Management's lien would be considered completely unsecured. Yet, Asset Management asserts that because they hold a "claim secured only by a security interest on the debtor's principal residence" under § 1322(b)(2), their rights and the lien are not subject to modification. Ms. Johnson asserts that § 1322(b)(2) protects only the rights of a claim holder whose claim is at least partially secured. Thus, Ms. Johnson argues, the Asset Management lien could be modified or even "stripped off."[3]
On May 11, 1998, the Bankruptcy Court held a hearing on the Claim and Objection. The Bankruptcy Judge ruled that § 1322(b)(2) protects junior homestead liens such as Asset Management's, even when the value of the collateral is more than consumed by a senior lien. Thus, the Court dismissed Ms. Johnson's Objection and allowed Asset Management's Claim as filed. Ms. Johnson appealed the Bankruptcy Court's Order to this Court.
II. LEGAL STANDARD
When a District Court reviews a Bankruptcy Court final order, the District Court acts as an appellate court. Accordingly, legal conclusions are reviewed de novo, whereas findings of fact may be set aside only if "clearly erroneous." See In re Bulldog Trucking, Inc., 147 F.3d 347, 351 (4th Cir.1998); Rinn v. First Union Nat'l Bank of Md., 176 B.R. 401, 407 (D.Md.1995); Fed. R.Bankr.P. 8013.
III. DISCUSSION
The issue presented by this case is whether a debtor's Chapter 13 bankruptcy payment plan may strip off the lien of a creditor holding a junior lien that is both: (1) wholly "unsecured" in terms of § 506(a); and (2) "secured only by a security interest in real property that is the debtor's principal residence," § 1322(b)(2). For the reasons stated herein, this Court concludes that a strip off is permissible.
A Chapter 13 bankruptcy requires a debtor to formulate a payment plan. This plan *366 must comply with the guidelines set forth in § 1322(b). The statute provides:
Subject to subsections (a) and (c) of this section, the plan may -
(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or holders of unsecured claims, or leave unaffected the rights of holders of any class of claims.
§ 1322(b).
Section 506(a) determines whether a claim that is "secured" under commercial law is, or is not, a "secured claim" in the context of the Bankruptcy Code. Section 506(a) states:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed claim.
The issue of the interplay between §§ 506(a) and 1322(b)(2) in the context of completely unsecured junior homestead liens is one of first impression for this Court. Moreover, the issue also has not been directly addressed in any published opinion of the United States Court of Appeals for the Fourth Circuit. The issue has, however, been much debated in bankruptcy court and three district court opinions. The courts have divided on the issue, with the majority deciding that such liens may be stripped off. See, e.g., In re Lam, 211 B.R. 36 (9th Cir. BAP 1997) (allowing strip off); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995) (same); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Bivvins, 216 B.R. 622 (Bankr. E.D.Tenn.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993). But see, e.g., In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998) (denying strip off); In re Lewandowski, 219 B.R. 99 (Bankr.W.D.Pa. 1998) (same); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996); In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996).
The split in decisions arises from different interpretations of Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (superseded in part by statute). In Nobelman, the debtor's home, worth $23,500, was encumbered with a single homestead lien of $71,335. Id. at 326, 113 S.Ct. at 2108. The debtor proposed to bifurcate the lien into a secured claim of $23,500, and an unsecured claim of $47,835. Id. The debtor argued that § 1322(b)(2) protected only that part of the claim defined as secured under § 506(a). The debtor further asserted that the unsecured claim component could be stripped down. Id. at 328, 113 S.Ct. at 2109. The creditor argued that bifurcation would modify its rights in violation of § 1322(b)(2). Id. The Court held that "§ 1322(b)(2) prohibits a Chapter 13 debtor from relying on § 506(a) to reduce an undersecured homestead mortgage to the fair market value of the mortgaged residence." Id. at 325-26, 113 S.Ct. at 2108.
First, the Nobelman Court held that when a creditor's lien is at least partially secured, § 506(a) does not operate to eliminate the creditor's rights in the unsecured claim component. Id. at 328-29, 113 S.Ct. at 2109-10. The debtors had asserted that a bifurcation and strip down did not modify a creditor's rights because, in effect, the creditor had no rights in the unsecured claim component. However, the Court stated:
This interpretation fails to take adequate account of § 1322(b)(2)'s focus on "rights." That provision does not state that a plan may not modify "a claim secured only by" a home mortgage. Rather, it focuses on the modification of the "rights of holders" of such claims.... Petitioners were correct in looking to § 506(a) for a judicial valuation of the collateral to determine the status of the bank's secured claim.... But even if we accept petitioners' valuation, the bank is still the "holder" of a "secured claim," because petitioners' home retains *367 $23,500 of value as collateral.... [H]owever, that determination does not necessarily mean that the "rights" the bank enjoys as a mortgagee, which are protected by § 1322(b)(2), are limited by the valuation of its secured claim.
Id. at 328, 113 S.Ct. at 2109-10. The Court continued by noting that "rights" are not defined in the Bankruptcy Code, but rather are governed by the mortgage agreement and are given substance by state property law.
Second, the Nobelman Court rejected the debtor's assertion that the anti-modification provision in § 1322(b)(2) applied only to secured claim components. The Court held that "a claim secured only by a" homestead lien refers "to the lienholder's entire claim, including both the secured and the unsecured components of the claim." Id. at 331, 113 S.Ct. at 2111. The Court reasoned that a bifurcation could not be allowed because a debtor could not "modify the payment and interest terms for the unsecured component, ... without also modifying the terms of the secured component." Id.
Those courts that prohibit a strip off of completely unsecured junior homestead liens, that is, those expressing the minority view, focus on the Supreme Court's "rights" analysis and what they find to be the "plain language" of § 1322(b)(2). These courts find that the mortgage contract alone creates "rights" which may not be modified regardless of whether a claim is secured or unsecured. See In re Tanner, 223 B.R. at 382 (finding the "plain meaning" of § 1322(b)(2) and Nobelman's "expansive definition of rights" preclude strip off, stating that the creation of rights does not depend on the existence of equity); In re Bauler, 215 B.R. 628, 632 (explaining that the "plain language" of § 1322(b)(2) supports prohibiting strip offs); In re Fraize, 208 B.R. 311, 313 (same); In re Neverla, 194 B.R. 547, 550 (finding a literal reading of § 1322(b)(2) protects "all properly perfected holders of Homestead Mortgages"); In re Jones, 201 B.R. 371 (prohibiting strip off because of plain language of § 1322(b)(2) and because of Nobelman's focus on creditors' rights, finding the existence of a mortgage lien alone gives a creditor rights § 1322(b)(2) protects).
Certainly a mortgage contract does create rights for the creditors. See Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110 ("The bank's "rights," therefore, are reflected in the relevant mortgage instruments ..."). Yet, the application of § 1322(b)(2)'s anti-modification clause determines the proper scope of the protection of those rights. Id. at 329, 113 S.Ct. at 2110 (noting state property rights control "[i]n the absence of a controlling federal rule"); In re Hornes, 160 B.R. at 715 (citing Nobelman and finding that § 1322(b)(2) overrides the state rights of a wholly unsecured junior homestead lienholder). In Nobelman, the Court was faced with determining the rights of a creditor who had a claim that was at least partially secured. Id. The Court did not address the rights of a totally unsecured homestead lienholder or whether § 1322(b)(2) also protected those rights. See, e.g., In re Lam, 211 B.R. at 40 (distinguishing Nobelman because of the difference between a partially secured claim and a wholly unsecured claim); Wright, 178 B.R. at 706 (collecting cases that rely on the distinction); In re Cerminaro, 220 B.R. at 524 (noting that Nobelman did not address a wholly unsecured junior lien); In re Scheuer, 213 B.R. at 418 (same); In re Geyer, 203 B.R. at 729 (same); In re Sanders, 202 B.R. at 988 (same); In re Hornes, 160 B.R. at 715 (same); 8 Collier on Bankruptcy, § 1322.06[1][a] at 1322-21 (L. King 15th Ed.1997) (stating that the Nobelman opinion "strongly suggests ... that if a lien is completely undersecured, there would be a different result").
The courts in the minority too easily dismiss the role of a § 506(a) valuation. See, e.g., In re Lam, 211 B.R. at 40 (citing cases that rely on Nobelman's reference to § 506(a)); In re Cerminaro, 220 B.R. at 524 (noting the Supreme Court's reference to § 506(a) valuation); In re Cervelli, 213 B.R. at 908 (same); In re Scheuer, 213 B.R. at 418 (same); In re Hornes, 160 B.R. at 713 (same). The Nobelman Court stated that, "By virtue of its mortgage contract with petitioners, the bank is indisputably the holder of a claim secured by a lien on petitioners' *368 home." 508 U.S. at 328, 113 S.Ct. at 2110. In the very next sentence, the Supreme Court found that it was correct for a Chapter 13 debtor, in the context of a homestead lien, to seek a § 506(a) valuation. Id. Further, the Court stated that in this context, the valuation should be used to "determine the status of the [creditor's] secured claim." Id. These statements refute the analysis of courts that find a valuation to be irrelevant. In a § 1322(b)(2) plan, a valuation cannot be both irrelevant and necessary to determine the status of a homestead lien. See In re Hornes, 160 B.R. at 713 (finding it "significant that the Court did not adopt the conclusion of the Fifth Circuit that § 506(a) and § 1322(b)(2) were in conflict" but rather gave effect to each statute). Therefore, the Supreme Court's acceptance of a § 506(a) valuation in the context of § 1322(b)(2) must control.
The courts in the minority cite the Supreme Court's rejection of the "rule of the last antecedent" as supporting their refusal to strip off wholly unsecured junior homestead liens. See In re Neverla, 194 B.R. at 550 (noting Supreme Court's rejection of rule); In re Jones, 201 B.R. at 373-74 (citing rejection of rule in disagreeing with debtor that claim must be partially secured). In Nobelman the debtor argued that according to that rule of interpretation, the word "claim" in the anti-modification clause referred back to the preceding clause which addressed only "secured claims." 508 U.S. at 330, 113 S.Ct. at 2111. Therefore, according to the debtor, the word "claim," in § 1322(b)(2)'s anti-modification phrase, meant a claim that was secured according to § 506(a), including § 506(a)'s bifurcation. The Supreme Court rejected that interpretation. Id. at 330-31, 113 S.Ct. at 2111. The minority courts interpret that rejection to mean that any claim, secured or wholly unsecured, merits protection under the anti-modification clause.
The argument that if "claim" does not mean "secured claim," then it must mean any claim fails to put the Nobelman decision in context. See In re Cerminaro, 220 B.R. at 524 (finding that even though Supreme Court rejected the "rule of the last antecedent" the Court did not thereby "implicitly dismiss[] the necessity" of § 506(a) analysis); In re Hornes, 160 B.R. at 714 (same). The Court itself stated that it was addressing the "interplay between" §§ 1322(b)(2) and 506(a). Nobelman, 508 U.S. at 325, 113 S.Ct. at 2108.
Section 506 is a statute that applies to bankruptcy proceedings under Chapters 7, 11, 12, and 13. 11 U.S.C. § 103(a). "Bifurcation is generally permitted under" § 506(a). In re Witt, 113 F.3d 508, 510 (4th Cir.1997). In contrast, § 1322(b)(2) protects only certain claim holders in Chapter 13 proceedings. The Supreme Court found that it would be "impossible" to reduce a claim to fair market value, to bifurcate under § 506(a), without modifying a creditor's rights in violation of § 1322(b)(2). Nobelman, 508 U.S. at 331, 113 S.Ct. at 2111. For this reason the Court found that the "more reasonable" interpretation of "claim" in the instant context is "entire claim." Id. The Court's holding that "claim" means "entire claim" is not the same as holding that "claim" means "any claim" or "unsecured claim." The Court approved using § 506(a) valuation procedures to determine the status of a claim, but found that § 1322(b)(2) modified § 506(a) by prohibiting bifurcation of homestead liens.
The courts prohibiting strip offs argue that it is unreasonable to rely overly much on valuations. Because valuations are unscientific, these courts find it irrational that lienholders' rights could turn on the difference of a single dollar in valuation. See In re Tanner, 223 B.R. at 383 (holding that valuations are "arbitrary and unscientific" and so should not be emphasized); In re Bauler, 215 B.R. at 632 (explaining that the policy consideration of avoiding too much emphasis on valuations supports prohibiting strip offs); In re Fraize, 208 B.R. at 313 (same); In re Neverla, 194 B.R. at 550 (same, and also explaining that allowing valuations to affect creditors rights could result in "potential pre-bankruptcy planning abuse"); In re Jones, 201 B.R. 371 (prohibiting strip off because of fear of placing too much emphasis on valuations). For example, a home may be subject to two liens, one for $50,000 and another for $20,000. If the home is valued at $50,001, then *369 the junior lien would be protected under Nobelman and could not be stripped off. Yet, if the home is valued for just one dollar less, then the junior lien would be completely unsecured and subject to strip off.
However, as stated above, § 506(a) valuations occur in bankruptcy proceedings under Chapters 7, 11, 12, and 13. § 103(a). In each of those cases where more than one lien exists the junior lien risks being "unsecured." The fact that courts may be concerned with drawing sharp lines with harsh effects does not excuse the need for doing so. See, e.g., In re Kerwin, 996 F.2d 552, 560 (2d Cir.1993) ("Determining the market value of real property is a constant feature in today's commercial world. Such valuations are regularly used by prudent lenders ..."); In re Lam, 211 B.R. at 41 (finding concern over valuations "unfounded"); In re Cervelli, 213 B.R. at 908 (citing Lam); In re Scheuer, 213 B.R. at 419 (stating it is not for courts to amend the Code); In re Bivvins, 216 B.R. at 625 (noting that the law often uses such cut offs); In re Hornes, 160 B.R. at 716 (quoting In re Kerwin). The Code provides that valuations must be performed and they must be given effect.
Additionally, a junior lienholder has no "right" to be treated more favorably in bankruptcy than in foreclosure. In re Tanner, 223 B.R. at 383 (denying strip off but acknowledging that the result is that "a creditor will have greater rights in bankruptcy than those bargained for under state law"). In the instant case, for example, the debtor had defaulted on the senior lien before declaring bankruptcy and was thus at risk of foreclosure. A completely unsecured junior lienholder would receive nothing in a foreclosure proceeding because all proceeds would go to the senior lien holder. See, e.g., In re Lam, 211 B.R. 36 (noting "a forced sale [by unsecured creditor] would not result in any financial return to the lienholder"); In re Woodhouse, 172 B.R. 1, 2 (Bankr.D.R.I.1994) (finding the rights of an unsecured lienholder to be "illusory, hyper-technical, and possibly relevant only in law review articles"); In re Hornes, 160 B.R. 709. Further, in foreclosure the wholly unsecured junior lien would be extinguished. In re Tanner, 223 B.R. at 383. Yet, if the junior lien is not stripped off in bankruptcy, the lienholder retains a security interest in the debtor's home, the right to payment under the plan, and the right to object to the payment plan. See In re Neverla, 194 B.R. at 553 (stating, after denying strip off, that creditors will be paid in full); 11 U.S.C. § 1325 (providing criteria for the confirmation of a payment plan, and that a secured creditor must accept the plan and retain the lien and that an unsecured creditor may object to confirmation of the plan).
Asset Management holds a completely unsecured junior homestead lien. In the view of this Court, the Supreme Court's Nobelman decision does not prohibit the stripping off of such a lien. Code sections 1322(b)(2) and 506(a) provide that such a lien may be stripped off and the rights of the unsecured creditor modified.
IV. CONCLUSION
For the foregoing reasons:
1. The June 8, 1998 Order dismissing Ms. Johnson's Objection to the Amended Proof of Claim and allowing Asset Management Group's Proof of Claim as filed shall be REVERSED.
2. This case shall be REMANDED to the Bankruptcy Court for further proceedings consistent herewith.
NOTES
[1] In their brief, Asset Management asserts that, procedurally, a strip off cannot occur by way of an Objection to a claim and that an adversary proceeding must occur. However, because the procedural issue was not raised below, Asset Management acknowledges that it cannot be presented on appeal.
[2] All statutory references herein are to the Bankruptcy Code, 11 U.S.C., unless otherwise indicated.
[3] In a "strip off" the entire lien is removed, whereas in a "strip down" a lien is bifurcated into secured and unsecured claims with only the unsecured claim component being removed. See In re Lam, 211 B.R. 36, 37 n. 2 (9th Cir. BAP 1997).
|
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2015 Decided January 21, 2016
No. 13-3031
UNITED STATES OF AMERICA,
APPELLEE
v.
EDDIE P. BURROUGHS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00033-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender. Tony Axam Jr.,
Assistant Federal Public Defender, entered an appearance.
Lauren R. Bates, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Vincent H.
Cohen, Acting U.S. Attorney, and Elizabeth Trosman, George
Eliopoulos, and David B. Goodhand, Assistant U.S.
Attorneys.
Before: GRIFFITH, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Eddie Burroughs appeals the
district court’s denial of his motion to suppress drug-related
evidence police discovered in his home. District of Columbia
police officers initially arrested Burroughs for carjacking.
They searched Burroughs incident to the carjacking arrest and
discovered evidence implicating him in a robbery. As part of
their investigation of the robbery, officers searched
Burroughs’s home pursuant to a warrant and found drugs.
The United States then prosecuted and convicted Burroughs
of three counts of possession of illegal drugs with intent to
distribute them. Burroughs was never prosecuted for
carjacking; in a preliminary hearing after his warrantless
arrest, the Superior Court of the District of Columbia found
that the police lacked probable cause for that arrest.
Burroughs contends that because the police lacked probable
cause for the arrest that led to the search warrant, the district
court should have suppressed the drug evidence as the fruit of
an illegal arrest.
Burroughs makes two arguments in support of
suppression. First, he argues that the district court was bound
by the superior court’s no-probable-cause determination.
Because Burroughs did not raise that issue before the trial
court and did not demonstrate good cause for that failure, we
assume that plain-error review applies and find none. Second,
Burroughs argues that the district court clearly erred in
finding that Burroughs was one of four suspects who fled
from the stolen car. That finding was not clearly erroneous,
for it was supported by testimony from an officer whose
credibility Burroughs does not contest. The district court’s
finding supplied probable cause for Burroughs’s arrest.
3
I.
Just after midnight on November 26, 2011, Officer James
Haskel of the Metropolitan Police Department flew in a police
helicopter in pursuit of a suspected stolen car. He tracked the
car to a parking lot (“the upper parking lot”) in a block in
southeast Washington.1 Officer Haskel watched from the air
as four men bailed out of and fled the car. He gave clothing
descriptions for three of the four fleeing suspects and directed
officers on the ground toward them. He reported over the
radio that all the men were running southeast toward a wood
line and that one of them made it to another parking lot within
the block (“the lower parking lot”), which lies southeast of
where the car had stopped. That man was attempting to walk
nonchalantly in the lower parking lot.
Police officers on the ground soon arrested three men
within the block: Burroughs, Cody Hartsfield, and a juvenile.
The juvenile was arrested in the woods between the upper and
lower parking lots. Burroughs was arrested in the lower
parking lot. Hartsfield was arrested east of the upper parking
lot in front of a building identified as either 3425 Sixth Street
or 3425 Fifth Street (the precise street is not relevant). Haskel
facilitated two of the three arrests—that of the juvenile and
one other—by shining light on the suspects from the
helicopter and directing officers on the ground to stop them.
The parties dispute whether the second person Officer Haskel
tracked was Burroughs or Hartsfield. The parties do not
dispute that if Haskel continuously observed Burroughs, the
police had probable cause to arrest Burroughs for carjacking.
1
We grant the government’s motion to take judicial notice of a
Google map. It is a “source[] whose accuracy cannot reasonably be
questioned,” at least for the purpose of identifying the area where
Burroughs was arrested and the general layout of the block. Fed. R.
Evid. 201(b).
4
II.
After Burroughs was arrested for carjacking but before he
was charged with federal drug offenses, he appeared with
fellow arrestee Hartsfield for a preliminary hearing before a
magistrate judge of the Superior Court of the District of
Columbia. The government’s only witness at that hearing
was Officer Karane Williams, one of the officers who
responded to the suspected carjacking. (She did not testify at
the later suppression hearing in district court.) Officer
Williams did not personally observe Burroughs’s arrest, but
she testified that the suspects’ clothing matched the
descriptions of the suspects Officer Haskel had given from the
helicopter, and that another officer had seen Hartsfield jump
over a fence just before he stopped him. The superior court
found that the police had probable cause to arrest Hartsfield,
but not Burroughs.
Burroughs contends that the federal district judge should
not have decided anew whether there was probable cause for
Burroughs’s arrest because the superior court judge’s finding
that the police lacked probable cause was binding on the
district court. He invokes collateral estoppel and law of the
case. The government argues that Burroughs failed to
preserve any such argument and that therefore we may not
consider it.
We agree that Burroughs did not preserve his preclusion
and law of the case arguments, but take no position on the
consequence of that failure. Whether we are wholly barred
from reviewing unpreserved suppression arguments absent a
showing of good cause or whether we may review them for
plain error is an open question. We need not resolve that
question here, however, because Burroughs has made no
attempt at showing good cause, and even assuming plain-error
5
review is available, Burroughs has not established that
denying preclusive effect to the superior court’s determination
was plain error.
A.
Burroughs did not timely assert that the district court
was bound by the superior court’s decision. “We have held
that, ‘while a pretrial motion need not state explicitly the
grounds upon which a motion is made, it must contain facts
and arguments that make clear the basis of defendant’s
objections.’” United States v. Hewlett, 395 F.3d 458, 460
(D.C. Cir. 2005) (quoting United States v. Mitchell, 951 F.2d
1291, 1296 (D.C. Cir. 1991)). In the district court, Burroughs
did not argue, much less “make clear,” that the superior
court’s probable-cause determination should be accorded
binding effect. Burroughs characterized his disagreement
with the government as one based on facts, not law. As he
put it, “[t]he government does not disagree on the law
asserted by Mr. Burroughs to support his motion to suppress
based upon an illegal stop. Instead, the government asserts
facts in evidence to support probable cause.” See Reply to
Opposition to Motion to Suppress at 1, United States v.
Burroughs, No. 1:12-cr-00033-JEB-1 (D.D.C. Oct. 31, 2012),
ECF No. 52. Burroughs’s counsel contested the probable
cause for the carjacking arrest by re-canvassing the facts and
asserting that: Burroughs matched only a general suspect
description; at the time Burroughs moved to suppress, no
officer had seen him either in or exiting the stolen car; he did
not behave suspiciously; and he was not in close physical
proximity to the stolen car when he was arrested.
It is true that Burroughs and his counsel mentioned the
superior court’s probable-cause determination in each of their
three filings (including Burroughs’s supplemental, pro se
6
reply), but never did they mention “collateral estoppel,”
“issue preclusion,” “law of the case,” or any of the elements
of those doctrines, or otherwise suggest that the superior
court’s probable-cause determination bound the federal
district court. The closest Burroughs came to asserting
preclusion was urging the district court to reach the same
conclusion as the superior court—that there was insufficient
evidence to support probable cause. He stated, for instance,
“[t]here was no more probable cause to arrest him on the day
he was arrested than there was on the day of his preliminary
hearing.” See Reply to Opposition to Motion to Suppress at
3. He also stated, “[t]here is no need to revisit the probable
cause determination and the government still have not m[et]
the standards for probable cause in their response.”
Supplemental Pro Se Reply Motion to Suppress at 8, United
States v. Burroughs, No. 1:12-cr-00033-JEB-1 (D.D.C. Oct.
31, 2012), ECF No. 53, ex. 1. Those statements make plain
that Burroughs pointed to the superior court’s conclusion as
potentially persuasive; he did not argue that it was preclusive.
B.
It is not settled whether Burroughs’s failure to raise the
preclusion argument in his suppression motion bars us
altogether (in the absence of good cause) from reviewing it on
appeal, or whether we may give it limited review for plain
error. We have not expressed a consistent position on the
standard of review of unpreserved claims, such as this one,
that come within the ambit of Federal Rule of Criminal
Procedure 12. Rule 12 requires parties to make certain
motions in advance of trial, including motions identifying
defects in an indictment (e.g., multiplicity) or instituting a
prosecution (e.g., venue, delay), or motions seeking to
suppress evidence. We have declined to review suppression
arguments that defendants had not raised before trial when
7
defendants failed to show good cause for their failure to do so.
See Hewlett, 395 F.3d at 460-61; see also United States v.
Peyton, 745 F.3d 546, 551-52 (D.C. Cir. 2014) (describing
this practice). But we have also considered whether
unpreserved claims involve any plain error. See, e.g., United
States v. Eiland, 738 F.3d 338, 350 (D.C. Cir. 2013). Our
treatment of other issues under Rule 12 has also been
inconsistent. For instance, sometimes we have reviewed for
plain error claims, not raised before trial, that a defendant was
impermissibly charged more than once for the same offense,
see, e.g., United States v. Kelly, 552 F.3d 824, 829 (D.C. Cir.
2009) (reviewing unpreserved double jeopardy challenge for
plain error), but at other times we have refused to do so, see
e.g., United States v. Weathers, 186 F.3d 948, 952-58 (D.C.
Cir. 1999) (reading Rule 12’s reference to “waiver” as
effectuating waiver rather than forfeiture of an unpreserved
multiplicity challenge). We are not the only circuit to have
struggled with Rule 12 in this way. See United States v. Soto,
794 F.3d 635, 649 & n.8 (6th Cir. 2015) (citing cases) (“Rule
12(e) caused great confusion among circuit courts about how
the rule restricts appellate review. Prior to the 2014 rule
revision, we were inconsistent as well.”).
Rule 12 was recently amended in a manner that may
affect appellate review. Until 2014, Rule 12 stated that “[a]
party waives” pretrial motions covered by the rule by not
raising them before the court’s deadline for those motions.
Fed. R. Crim. P. 12(e) (effective until Dec. 1, 2014). In such
a situation, “the court” was permitted to “grant relief from the
waiver” only for “good cause.” Id. The current version of
Rule 12, which governs this appeal,2 no longer uses the term
2
The new version of Rule 12 applies to Burroughs’s case because
his case was pending when the new rule took effect. See Supreme
Court Order Amending Fed. R. Crim. P. 12 (Apr. 25, 2014) (“[T]he
foregoing amendments to the Federal Rules of Criminal Procedure
8
“waiver.” It states instead: “If a party does not meet the
deadline for making a Rule 12(b)(3) motion, the motion is
untimely. But a court may consider the defense, objection, or
request if the party shows good cause.” Fed. R. Crim. P.
12(c)(3).
Some circuit courts have read the newly amended version
of Rule 12—in particular, the deletion of the reference to
“waiver”—to permit plain-error review when a defendant did
not intentionally relinquish a claim within Rule 12’s ambit,
even if the defendant has not offered good cause for his or her
failure to timely raise it. See United States v. Sperrazza, 804
F.3d 1113, 1118-21 (11th Cir. 2015); Soto, 794 F.3d at 647-
56. Other circuits review unpreserved Rule 12 issues only
when the defendant has made a showing of good cause,
regardless of whether the defendant intentionally declined to
raise those issues. See United States v. Daniels, 803 F.3d 335,
351-52 (7th Cir. 2015); United States v. Anderson, 783 F.3d
727, 741 (8th Cir. 2015). Here, we need not decide which
standard applies. Under the waiver-absent-good-cause
standard, Burroughs has made no showing of good cause that
would allow us to reach his argument. See United States v.
Williams, 773 F.3d 98, 105 n.3 (D.C. Cir. 2014). And even if
Rule 12 does permit us, absent good cause, to review
Burroughs’s unpreserved preclusion argument for plain error,
Burroughs would have to show that the error was plain.
C.
Burroughs has not carried his burden to establish that the
district judge plainly erred in finding probable cause for the
same arrest after the superior court found that there was none.
shall take effect on December 1, 2014, and shall govern in all
proceedings in criminal cases thereafter commenced and, insofar as
just and practicable, all proceedings then pending.”).
9
It is not “clear” or “obvious,” United States v. Olano, 507
U.S. 725, 734 (1993), that the district court was precluded by
either law of the case or collateral estoppel from evaluating
anew whether the police had probable cause to arrest
Burroughs for carjacking.
Indeed, quite the opposite is true when it comes to law of
the case. That doctrine holds that a “legal decision made at
one stage of litigation, unchallenged in a subsequent appeal
when the opportunity to do so existed, [governs] future stages
of the same litigation, and the parties are deemed to have
waived the right to challenge that decision at a later time.”
United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009)
(quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739
(D.C. Cir. 1995)) (alterations in original). As the government
correctly notes, Burroughs is seeking to bind the courts across
different cases. Thomas makes clear that the law of the case
doctrine only applies within the same case. See id.
The question whether collateral estoppel applies to the
superior court’s probable-cause determination is more
difficult. Burroughs cites no case from this court or the
Supreme Court confirming that a probable-cause
determination in a preliminary hearing is entitled to preclusive
effect in an ensuing criminal prosecution. That does not
doom Burroughs’s effort, for errors can be plain even in the
absence of binding case law. See In re Sealed Case, 573 F.3d
844, 851 (D.C. Cir. 2009). But Burroughs does not succeed
here because there is no “absolutely clear legal norm,” id.
(quotation marks omitted), establishing his claim. Neither the
District of Columbia’s rule nor the federal rule expressly
gives preclusive effect to probable-cause determinations. See
D.C. Sup. Ct. Crim. R. 5(d); Fed. R. Crim. P. 5.1(f). Criminal
collateral estoppel is generally “an integral part of the
protection against double jeopardy guaranteed by the Fifth
10
and Fourteenth Amendments.” Harris v. Washington, 404
U.S. 55, 56 (1971) (per curiam). Given that jeopardy had not
yet attached when Burroughs was before the superior court
for a determination of probable cause, see Martinez v. Illinois,
134 S. Ct. 2070, 2074 (2014) (per curiam), it is unclear
whether any estoppel effect would have yet materialized. We
need not and do not say for sure whether it had; it suffices that
it is not plain that a probable-cause determination made in a
preliminary hearing binds a judge in a subsequent criminal
proceeding.
III.
Burroughs also contends that, in any event, the district
court erred in finding that the police had probable cause to
arrest him. “We review the district court’s ‘findings of
historical fact only for clear error and . . . give due weight to
inferences drawn from those facts,’ as well as to the district
court’s determination of witness credibility.” United States v.
Bookhardt, 277 F.3d 558, 564 (D.C. Cir. 2002) (quoting
Ornelas v. United States, 517 U.S. 690, 699 (1996)). We
review de novo the district court’s legal determination that
there was probable cause. Ornelas, 517 U.S. at 697, 699.
The district judge denied Burroughs’s motion to suppress
the evidence found in the search of his home, because the
police had probable cause to arrest Burroughs for carjacking.
The court made a factual finding that Burroughs was one of
the men who had fled the stolen car. Key to that finding was
the district judge’s determination that Officer Haskel
“testified very credibly” that he never lost sight of a man who
exited the stolen car and ran from the upper parking lot
through the woods to the lower parking lot where Burroughs
was arrested. Hr’g Tr. 153.
11
At the hearing, Officer Haskel traced on a map the path
he observed one suspect take from the upper parking lot to the
lower parking lot. He testified that he shined his light on the
suspect, “directed the officers to stop that guy,” and saw the
officers “put their hands on him.” Hr’g Tr. 37. When Officer
Haskel was asked, “did you ever lose sight of [the man
stopped in the lower parking lot] between the bailout and the
time he was stopped,” he answered, “[n]o.” Hr’g Tr. 65. A
different officer, Jeffrey Wade, testified that Burroughs was
detained in the lower parking lot, right where Officer Haskel
had indicated he saw the suspect stopped. Officer Wade
testified that he had learned from other officers that
Burroughs had been stopped as he was walking away from the
woods shortly after the bailout. The district judge found that
Officer Haskel’s testimony was further corroborated by the
helicopter radio recording, in which Haskel described seeing a
suspect run southeast through the woods to a parking lot and
then walk nonchalantly into the parking lot.
Burroughs contends that Officer Haskel’s testimony does
not support the district court’s factual finding that Burroughs
was one of the men in the stolen car because that finding is
contradicted by other evidence suggesting that Officer Haskel
facilitated Hartsfield’s arrest rather than Burroughs’s.
Burroughs points to the fact that Officer Haskel can be heard
in a recording of the helicopter’s radio telling someone to
“[s]top that guy right there,” seconds before an officer on the
ground known only as “Officer 750” stated, “3425, I got one
stopped.” J.A. 116. It is not disputed that Hartsfield was
arrested near a building numbered 3425. The only
permissible conclusion that follows from that excerpt of the
recording, says Burroughs, is that the man Haskel testified he
was watching was not him, but Hartsfield.
12
Burroughs does not, however, contest the district court’s
finding that Officer Haskel testified credibly that he aided in
Burroughs’s arrest. See Oral Arg. Tr. 11:16-11:38 (“[Judge
Griffith:] So you just have to disbelieve Haskel. Your version
of events, you just can’t believe Haskel. [Counsel for
Burroughs:] No, our argument, our version of events is that
the government failed to explain this discrepancy and it was
their burden to do so.”); see also id. at 6:20-6:43 (“[Judge
Pillard]: Do we have to, in order to find for your client, hold
that…the district judge was clearly erroneous to the extent
that he found that Haskel was watching Burroughs the whole
time? [Counsel for Burroughs]: No you don’t.”). The court’s
finding that Officer Haskel credibly and accurately testified
that he tracked Burroughs from bailout to arrest suffices to
support probable cause.
The district judge acknowledged that Officer Haskel’s
testimony that he facilitated Burroughs’s arrest was “difficult”
to “square” with the part of the radio recording that can be
understood to suggest that Officer Haskel instead assisted in
Hartsfield’s arrest. Hr’g Tr. 152. That recording, however,
was reconcilable with Officer Haskel’s testimony. Indeed, the
district judge offered examples of how. The district judge
observed, for example, that Officer Haskel and Officer 750
may not have been talking to each other about the same arrest.
He explained,
[Y]ou’ve got a number of people on the air with each
other, they’re not exactly speaking to each other, it’s
not a clear conversation. And therefore, maybe when
[Officer 750 says], “3425 I got one stopped,” [he] is
not responding to Haskel’s “Stop that guy right
there,” but [to] a different stop, [to] the stop of Mr.
Hartsfield….
13
Id. at 152-53.
Burroughs contends that the evidence does not support
the district court’s explanation. According to Burroughs, the
government did not resolve “critical evidentiary
contradictions” about which arrest Officer Haskel aided—
contradictions he asserts the government could not resolve
without calling as witnesses the officers who arrested
Burroughs and Hartsfield. Appellant Br. 30-31.
We disagree. The government carried its burden to
establish probable cause by eliciting what was, in the district
court’s view, credible and persuasive testimony that Officer
Haskel facilitated the arrest of the suspect Officer Wade
identified as Burroughs. Officer Haskel’s testimony, coupled
with Officer Wade’s identification, furnished adequate
support for the district court’s ultimate factual finding that
Burroughs was one of the four men who fled the stolen car.
That finding is bolstered by the radio recording in which
Officer Haskel described the flight of a suspect toward the
lower parking lot where Burroughs was arrested.
Burroughs is right that it is possible to read other parts of
the radio recording and conclude that Officer Haskel could
have assisted only in either Burroughs’s or Hartsfield’s arrest,
but not both, and that the arrest he assisted was Hartsfield’s.
But it is also possible to conclude from the record—including
Officer Haskel’s testimony, which the district court
credited—that Officer Haskel facilitated Burroughs’s arrest.
“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564,
574 (1985).
14
IV.
For the foregoing reasons, we hold that Burroughs did
not establish good cause for not raising his preclusion
argument before the district court and, assuming plain-error
review applies, the district court did not plainly err by failing
to give preclusive effect to the superior court’s probable-cause
determination. And because the district court’s probable-
cause determination rested on a factual finding that was not
clearly erroneous, we affirm the district court’s denial of
Burroughs’s motion to suppress.
So ordered.
|
228 F.2d 185
DAVID KARP COMPANY, Inc., Appellant,v.The READ HOUSE, Inc., Appellee.
No. 12432.
United States Court of Appeals Sixth Circuit.
December 13, 1955.
Ben O. Duggan, Jr., Chattanooga, Tenn., Mayne W. Miller, Johnson City, Tenn., (U. L. McDonald, Chattanooga, Tenn., on the brief), for appellant.
Alvin O. Moore, Chattanooga, Tenn., (A. F. Rebman, III, Spears, Reynolds, Moore & Rebman, Chattanooga, Tenn., on the brief), for appellee.
Before ALLEN, MARTIN and STEWART, Circuit Judges.
PER CURIAM.
1
This is an appeal from a judgment of the District Court entered upon a jury verdict in an action for damages for the loss of jewelry (valued at approximately $50,000) contained in cases checked in appellee's hotel, where appellant's salesman was a guest. The applicable statute is Section 6680 of the Tennessee Code, which protects innkeepers from liability provided they have a safe or other convenient place for the safekeeping of jewels and other property named, and provided that proper notice of the availability of such depository is posted in each room occupied by guests. If these statutory provisions are complied with and a guest fails to place jewels or other property named in the place for safekeeping, the guest cannot recover. If the statutory provisions are not met by the innkeeper, the guest may recover under the common law.
2
The statute also provides in substance that, where the innkeeper has a place for safekeeping and gives the proper notice and the guest places the jewelry in the depository and there is a loss, the limit of recovery is $300.00 unless the proprietor and the guest have contracted for a greater liability.
3
It is undisputed that appellant's salesman without notifying any hotel official or employee of the contents of his suitcases or bags placed them for deposit and took a receipt therefor. The evidence upon other material issues of the case was in conflict. The court submitted to the jury the questions whether, under the statute, the innkeeper had provided a safe or other convenient place for the keeping of the valuables described in the statute, and whether there was proper notice of that fact posted in the room occupied by appellant's salesman. The jury by its verdict evidently found that there was such a depository provided and that proper notice was posted. This being the case, under the statute, as no contract had been made between appellee and the guest imposing a greater liability upon appellee, the limit of recovery was $300.00. No objection or exception was taken to the charge. The court correctly submitted the case to the jury and correctly applied the Tennessee law.
4
As no reversible error appears in the record the judgment of the District Court is affirmed upon the grounds and for the reasons stated in the memorandum opinion of the District Court on motion for new trial. 136 F.Supp. 372.
|
363 S.W.3d 823 (2012)
Jimmy MILES, Individually and as Next Friend of Michael Miles and Joseph Miles, Minor Children, Appellant,
v.
JERRY KIDD OIL COMPANY, Appellee.
No. 12-11-00022-CV.
Court of Appeals of Texas, Tyler.
February 29, 2012.
James W. Volberding, J. Kenneth Findley, Findley Law Firm, Tyler, for Appellant.
Scott A. Whisler, Scott A. Whisler, P.C., James W. Grau, Grau Koen, P.C., Dallas, for Appellee.
*824 Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
OPINION
BRIAN HOYLE, Justice.
Jimmy Miles, individually and as next friend of Michael Miles and Joseph Miles, appeals the trial court's order granting summary judgment in favor of Jerry Kidd Oil Company, which provides that Miles take nothing from Jerry Kidd. He also appeals from the trial court's order denying his motion for new trial. In his sole issue on appeal, he contends that the trial court erred in granting Jerry Kidd's motion for summary judgment and denying his motion for new trial. We affirm.
BACKGROUND
Victoria Alison Miles died as a result of a tragic incident. Victoria worked as a cashier at Kidd Jones No. 3, one of Jerry Kidd's locations in Tyler, Texas. During Victoria's shift on the day she was killed, the store was low on change so Victoria walked across Loop 323, a heavily travelled roadway, to obtain change from the bank. As she returned across Loop 323, Gerald L. Bourque, an intoxicated driver, ran over and killed her.
Jimmy Miles, Victoria's husband, believed that Jerry Kidd was partially responsible for Victoria's death by requiring Victoria to traverse such a heavily travelled roadway on foot as part of her job duties. Jimmy filed suit against Jerry Kidd on behalf of himself and the couple's two children. Jerry Kidd asserted various defenses to Jimmy's suit.
Jerry Kidd then filed a motion for summary judgment in which it argued that Jimmy's claims are barred by a combination of two statutes. One of the statutes provides that recovery of worker's compensation benefits is the exclusive remedy for a work related death.[1] The other prohibits an award of exemplary damages against a defendant when harm results from the criminal act of another.[2] Because Jerry Kidd was Victoria's employer, Jimmy acknowledged that his recovery against Jerry Kidd was limited to exemplary damages for its gross negligence. Although Bourque committed the crime of intoxication manslaughter when he struck and killed Victoria, Jimmy did not agree that this prohibited his recovery of exemplary damages. Instead, he argued that the legislative limitation when harm results from the criminal act of another does not apply to his claims. The trial court found Jerry Kidd entitled to judgment as a matter of law, granted its motion for summary judgment, and dismissed the lawsuit. Jimmy filed a motion for new trial, which the trial court denied. This appeal followed.
CONSTRUCTION OF TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION 41.005
In his sole issue, Jimmy argues that the trial court erred in granting Jerry Kidd's motion for summary judgment and denying Jimmy's motion for new trial. He explains that by raising this issue, he seeks to raise "all available arguments for reversal of the summary judgment." Specifically, he argues that (1) the proper construction of Section 41.005, Texas Civil Practice and Remedies Code, allows for exemplary damages to redress an employer's gross negligence when a third party's criminal conduct amounts to a concurrent cause of the same injury, (2) intoxication manslaughter is not a crime covered by Section 41.005, and (3) the trial court's construction of Section 41.005 violates the Texas *825 constitution in several respects. We address each argument in turn.
Standard of Review
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Once the movant has established a right to summary judgment, the burden of proof shifts to the nonmovant to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979).
We review a trial court's grant of a summary judgment de novo. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010). We examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (per curiam); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See TEX.R. CIV. P. 166a(c).
Statutory Construction
Statutory construction is a question of law and is reviewed de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex.2007). In construing a statute, our primary objective is to determine and give effect to the legislature's intent in enacting it. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In determining legislative intent, we examine the entire act, not just isolated portions of it. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). We start with the plain and common meaning of the statute's words. McIntyre, 109 S.W.3d at 745. Unless the statute is ambiguous, we determine the legislature's intent from the language of the statute itself. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). "Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on." Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006).
We must presume that every word of the statute has been used for a purpose and that every word excluded from the statute has also been excluded for a purpose. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). We should not insert words into the statute except to give effect to clear legislative intent. Id. "Statutory language should not be read as pointless if it is reasonably susceptible of another construction." Franka v. Velasquez, 332 S.W.3d 367, 393 (Tex.2011) (Medina, J., dissenting) (citing City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.1995), superseded by statute on other grounds as stated in Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54 (Tex.2011)). When a statute includes an exception, the intent is that the statute applies in all cases not excepted. Healthcare Ctrs. of Tex., Inc. v. Rigby, 97 S.W.3d 610, 619 (Tex.App.-Houston [14th Dist.] 2002, pet. denied), overruled on other grounds by Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex.2005).
*826 We presume that the legislature enacted the statute with complete knowledge of existing law and with reference to it. Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990). It is further presumed that the legislature enacts a statute with an intended construction in compliance with the constitutions of Texas and the United States. TEX. GOV'T CODE ANN. § 311.021(1) (West 2005). We also may consider the object sought to be obtained by the statute and the consequences of a particular construction. Id. § 311.023(1), (5).
Application to the Statute
The applicable language of Section 41.005 is as follows:
Harm Resulting From Criminal Act
(a) In an action arising from harm resulting from an assault, theft, or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another.
TEX. CIV. PRAC. & REM.CODE ANN. § 41.005(a) (West 2008).
Jimmy argues that this language "merely acts as a preventative precluding juries from punishing in-court defendants for the criminal acts of unrelated third parties." He argues that Section 41.005 does not prevent recovery of exemplary damages from an in-court defendant when the criminal act of a third party combines with the noncriminal actions of the in-court defendant, as concurrent causes, that together caused the harm suffered by the plaintiff. We disagree with Jimmy's construction of the statute.
We construe Section 41.005 to preclude punishing a defendant for harm resulting from a criminal act of a third party when that defendant's actions are a concurrent cause of the harm. In addition to being consistent with the plain wording of the statute, our construction is guided by two main principles. First, Jimmy's construction renders the statute meaningless. There is no theory of liability under which a defendant is punished for the criminal acts of unrelated third parties. Thus, if the statute is reasonably susceptible of another construction, we should give the statute that construction. Franka, 332 S.W.3d at 393.
Second, when reading the entire statute, our construction garners additional support. The legislature in subsection (b) recognized that subsection (a) provides an exemption.[3] TEX. CIV. PRAC. & REM.CODE ANN. § 41.005(b). One "exempts" by freeing from an obligation, a duty, or a liability to which others are subject or by excusing. AM. HERITAGE COLLEGE DICTIONARY 479 (3d ed. 1997). Our construction provides defendants with an exemption from liability while Jimmy's does not.
In subsection (b), the legislature included four exceptions to the exemption in subsection (a). See TEX. CIV. PRAC. & REM. CODE ANN. § 41.005(b). But the legislature *827 did not include a defendant's concurrent gross negligence as an exception to the statutory exemption from liability for exemplary damages. See Rigby, 97 S.W.3d at 620 (holding in similar case "that the legislature did not provide an exception to exemption from punitive damages when a defendant commits a concurrent criminal act but is not responsible as a party"). By interpreting the statute to preclude punishing a defendant for harm resulting from the criminal act of a third party when a defendant's actions are a concurrent cause of the harm, we give effect to the entire statute. See Laidlaw Waste Sys., 904 S.W.2d at 659.
We are mindful that a Texas constitutional provision addresses deaths caused by the gross negligence of others. See TEX. CONST. art. XVI, § 26. Specifically, the Texas constitution provides that
[e]very person, corporation, or company, that may commit a homicide, through willful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.
Id. Jimmy argues that this provision limits the legislature's power to restrict his right to recover exemplary damages in this instance. First, we presume that the legislature enacts a statute with an intended construction in compliance with the Texas constitution. See TEX. GOV'T CODE ANN. § 311.021. Second, we do not read this constitutional provision to require a different construction of the statute because it "does not mandate any broader recovery than the decedent could have obtained had [s]he survived." Garrett v. Patterson-UTI Drilling Co., L.P., 299 S.W.3d 911, 916 (Tex.App.-Eastland 2009, pet. denied) (stating numerous limitations on ability to obtain exemplary damages have been upheld despite Article XVI, Section 26).
The Supreme Court of Texas considered this constitutional provision in 1995, only a few weeks before the legislature voted on Section 41.005. See generally Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848 (Tex.1995). In Travelers, the court recognized that the purpose of Article XVI, Section 26 was to alleviate two common law impediments to the recovery of damages caused by the death of a family member. Id. at 850-52. The constitutional provision therefore does not prohibit the legislature from creating a bar to recovery of exemplary damages in a wrongful death claim. See id. at 852. Likewise, our construction of Section 41.005 is not constitutionally infirm. See id.
Intoxication Manslaughter
Next, Jimmy argues that, even if Section 41.005 prevents punishing a defendant for harm resulting from the criminal act of a third party when a defendant's actions are a concurrent cause of the harm, the statute's reach must be limited to instances of assault, theft, and other truly similar crimes. Jimmy then asserts that intoxication manslaughter is not similar to assault and theft because it does not involve a clearly formed intent on the part of the criminal.
As we stated earlier, our primary objective in construing statutes is to give effect to the legislature's intent. McIntyre, 109 S.W.3d at 745. The statutory construction principle of ejusdem generis is sometimes applied to determine legislative intent. See, e.g., Hilco Elec. Coop., Inc. v. Midlothian Butane Gas Co., Inc., 111 S.W.3d 75, 81 (Tex.2003). This principle warns against expansively interpreting broad language that immediately follows narrow and specific terms. R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 629 (Tex.2011). *828 Accordingly, under these circumstances, we restrict the meaning of the more general words to the same kind or class as the more specific words in the statute. Reyes v. City of Laredo 335 S.W.3d 605, 607 (Tex.2010) (per curiam); Hilco Elec. Coop., 111 S.W.3d at 81. This prevents general words used with specific terms from including things not intended. Dawkins v. Meyer, 825 S.W.2d 444, 447 (Tex.1992). Ultimately, the doctrine of ejusdem generis can be used only as an aid in ascertaining the intended coverage of the provision, not to subvert that intent once it is ascertained. Id.
Section 41.005 applies to actions arising from harm resulting from "an assault, theft, or other criminal act." TEX. CIV. PRAC. & REM.CODE ANN. § 41.005(a). As Jimmy points out, assault and theft require proof of a culpable mental state, but intoxication manslaughter does not. Compare TEX. PENAL CODE ANN. § 22.01(a) and 31.03 with id. § 49.11 (West 2011). Consequently, intoxication manslaughter is a strict liability crime. Burke v. State, 80 S.W.3d 82, 90-91 (Tex.App.-Fort Worth 2002, no pet.) (op. on reh'g). Based upon this distinction, Jimmy would have us conclude that exemplary damages can be awarded under Section 41.005 where, as here, "the criminal act of another" is a strict liability crime. However, we are not persuaded that the legislature intended to make any such distinction. Instead, in applying the principle of ejusdem generis, we look at the kinds or classes of crimes listed in the statute. See Reyes, 335 S.W.3d at 607; Hilco Elec. Coop., 111 S.W.3d at 81.
A person commits an assault if the person, acting with the requisite culpable mental state, causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). As applicable here, a person commits intoxication manslaughter by operating a motor vehicle in a public place when intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Id. § 49.08(a) (West 2011). Both statutes describe criminal conduct that results in physical harm to another person. Therefore, under the principle of ejusdem generis, we conclude that intoxication manslaughter is sufficiently similar to the crime of assault to be covered by Section 41.005.
Constitutional Arguments
Finally, Jimmy argues that the trial court's construction of Section 41.005 violates the Texas constitution. We tangentially addressed one of Jimmy's constitutional claims relating to Article XVI, Section 26 when we applied the rules of statutory construction to Section 41.005. In addition to arguing that the trial court's construction violates Article XVI, Section 26 of the Texas constitution, Jimmy argues that it violates the open courts provision, the due course of law guarantee, and the equal protection guarantee found in the Texas constitution. However, Jimmy did not make any of these arguments to the trial court.
In the summary judgment context, "[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." TEX.R. CIV. P. 166a(c). Likewise, to preserve a complaint for appellate review, the complaining party must present the complaint to the trial court by timely request, objection, or motion. TEX.R.APP. P. 33.1(a)(1). These rules apply to constitutional challenges. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex.2002) (holding party failed to raise constitutional argument that trial court's ruling violated open courts provision in response to summary judgment motion and thus did not preserve it for appeal); Dreyer v. Greene, 871 S.W.2d 697, *829 698 (Tex.1993) (holding party waived due process and equal protection challenges by failing to raise them in trial court). Jimmy did not raise his constitutional arguments in the trial court. Therefore, he failed to preserve these issues.
CONCLUSION
We agree with the trial court's construction of the statute and with its ruling that based on Section 41.005, Jerry Kidd is entitled to judgment as a matter of law. Accordingly, we overrule Jimmy's sole issue. Having overruled Jimmy's sole issue, we affirm the judgment of the trial court.
NOTES
[1] See TEX. LABOR CODE ANN. § 408.001 (West 2006).
[2] See TEX. CIV. PRAC. & REM.CODE ANN. § 41.005 (West 2008).
[3] Specifically, subsection (b) provides as follows:
(b) The exemption provided by Subsection (a) does not apply if:
(1) the criminal act was committed by an employee of the defendant;
(2) the defendant is criminally responsible as a party to the criminal act under the provisions of Chapter 7, Penal Code;
(3) the criminal act occurred at a location where, at the time of the criminal act, the defendant was maintaining a common nuisance under the provisions of Chapter 125, Civil Practice and Remedies Code, and had not made reasonable attempts to abate the nuisance; or
(4) the criminal act resulted from the defendant's intentional or knowing violation of a statutory duty under Subchapter D, Chapter 92, Property Code, and the criminal act occurred after the statutory deadline for compliance with that duty.
TEX.CIV. PRAC. & REM.CODE ANN. § 41.005 (emphasis added).
|
FILED
MAR 25 2015
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGINIA VELAZQUEZ, individually Nos. 13-55241 and
and on behalf of all others similarly 13-55822
situated; STEVEN BERRY, individually
and on behalf of all others similarly D.C. No. 8:11-cv-00508-JVS
situated; ED WHITAKER, individually (RNBx)
and on behalf of all others similarly
situated, MEMORANDUM*
Plaintiffs - Appellees,
v.
COSTCO WHOLESALE
CORPORATION,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David Bryan Sentelle, Senior Circuit Judge for the U.S.
Court of Appeals for the District of Columbia Circuit, sitting by designation.
Argued and Submitted February 11, 2015
Pasadena, California
Before: SENTELLE,** CHRISTEN, and HURWITZ, Circuit Judges.
Costco appeals the district court’s judgment (1) awarding plaintiffs Virginia
Velazquez and Steven Berry unpaid overtime wages as well as interest, costs, and fees
under Sections 510 and 1194 of the California Labor Code and Sections 17200
through 17210 of the California Business and Professions Code, and (2) ordering
Costco to pay a continuing-wages penalty under Sections 202 and 203 of the
California Labor Code. Because the district court applied the correct legal standard
and did not clearly err when it concluded Costco failed to prove Velazquez and Berry
spent more than half of their time on managerial duties, we affirm the portion of the
judgment awarding plaintiffs unpaid overtime. We reverse the portion of the district
court’s judgment ordering Costco to pay Berry $14,520 in continuing wages because
there is no evidence suggesting Costco willfully failed to pay Berry’s unpaid overtime
upon his termination.
1. The application of California overtime exemptions presents “a mixed
question of law and fact.” Sav-on Drug Stores, Inc. v. Super. Court, 96 P.3d 194, 202
2
(Cal. 2004). “How [an employee] spent his [or her] working time is a question of fact
reviewed under the clearly erroneous standard.” Bothell v. Phase Metrics, Inc., 299
F.3d 1120, 1124 (9th Cir. 2002). Whether those activities precluded the employee
from overtime benefits “is a question of law and the court reviews the district court’s
decision de novo.” Id.
2. The parties agreed that plaintiffs established a prima facie case for failure
to pay overtime under Section 1194 of the California Labor Code. As an affirmative
defense, Costco argued that it properly designated plaintiffs exempt from overtime.
See Ramirez v. Yosemite Water Co., Inc., 978 P.2d 2, 8 (Cal. 1999). In order to
establish the propriety of exempting Velazquez and Berry, Costco was required to
prove that they were “primarily engaged in duties which meet the test of the
[executive or administrative] exemption.” Cal. Code Regs. tit. 8, § 11070 subd.
1(A)(1)(e), (1)(A)(2)(f). The district court therefore had to determine, on a factual
basis, how plaintiffs spent their time.
3. To determine whether an employee is primarily engaged in managerial
duties (and is therefore exempt from overtime), a court should look “not only to the
‘work actually performed by the employee during the workweek,’ but also to the
‘employer’s realistic expectations and the realistic requirements of the job.’” Heyen
v. Safeway Inc., 157 Cal. Rptr. 280, 304 (Cal. Ct. App. 2013) (quoting Cal. Code
3
Regs. tit. 8, § 11070 subd. 1(A)(1)(e)). Costco contends the district court erroneously
rejected its realistic expectations as a basis for exempting plaintiffs from overtime.
We disagree.
4. A court cannot determine whether an employee primarily engaged in exempt
managerial duties based solely on “the number of hours that the employer, according
to its job description or its estimate, claims the employee should be working.”
Ramirez, 978 P.2d at 13. If it did, “then the employer could make an employee
exempt from overtime laws solely by fashioning an idealized job description that had
little basis in reality.” Id. Similarly, a court cannot solely rely on an employee’s
reported hours because the employee could then “evade a valid exemption” through
“his own substandard performance.” Id. To “steer clear of these two pitfalls,” the
court should consider “the realistic requirements of the job.” Id. Nonetheless, “first
and foremost,” the court should consider “how the employee actually spends his or her
time.” Id. The district court did that here, and it did not err.
5. Costco offered expert testimony to support its realistic-expectations position
and to rebut plaintiffs’ claim that there was only one way to perform their job. The
district court did not abuse its discretion when it excluded that testimony under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
4
6. Costco suggests the district court misread Ramirez as requiring it to prove
there was a “concrete expression of employer displeasure over [plaintiffs’]
substandard performance.” 978 P.2d at 13. We disagree. The district court neither
misread Ramirez nor “invented” any requirement for Costco to prove that it
affirmatively complained to plaintiffs about the nature of the work they performed as
warehouse receiving managers. Appellant’s Br. at 24. On the contrary, the district
court correctly applied Ramirez and considered any expression of displeasure (or lack
thereof) as one factor weighing against Costo’s executive-exemption defense.
7. In addition to the back pay award to plaintiff Berry, the district court
ordered Costco to pay continuing wages after his termination as a penalty under
Section 203 of the California Labor Code. Costco argues that the district court erred
in making that penalty award, and we agree. Section 203(a) provides:
If an employer willfully fails to pay, without abatement or reduction,
in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5,
any wages of an employee who is discharged or who quits, the wages of
the employee shall continue as a penalty from the due date thereof at the
same rate until paid or until an action therefor is commenced; but the
wages shall not continue for more than 30 days.
There is no evidence in this case to support a “willful” failure to pay by Costco. See
Amaral v. Cintas Corp. No. 2, 78 Cal. Rptr. 572, 609 (Cal. Ct. App. 2008) (“So long
as no other evidence suggests the employer acted in bad faith, presentation of a good
5
faith defense, based in law or fact, will negate a finding of willfulness.”). It is not
enough that the company knew that it was not paying the overtime, or the language
of § 203(a) would be superfluous. “The settled meaning of ‘willful,’ as used in
section 203, is that an employer has intentionally failed or refused to perform an act
which was required to be done.” Id. at 607. There was no showing here of bad faith
or deliberate intent to violate the requirements of the statute. We therefore vacate the
portion of the district court’s judgment ordering Costco to pay Berry $14,520 in
continuing wages.
8. Costco further argues that its damages should be mitigated on the basis of
the “avoidable consequences doctrine.” See State Dep’t of Health Servs. v. Super.
Court, 79 P.3d 556, 564 (Cal. 2003). Costco contends that under this doctrine, even
if the plaintiffs were misclassified, a recovery should be barred to the extent that they
failed to take reasonable steps to avoid their damages. Costco contends that these
employees, realizing that their tasks were more often characteristic of hourly paid
personnel than of managers, should have made an effort to correct that
mischaracterization. We are not convinced. Under the applicable doctrine, the
employer’s invocation of the employees’ duty to mitigate is effective only where the
employer has taken “reasonable steps to prevent and correct” the wrong leading to the
employees’ damages. Id. at 565. Here the district court found no such steps on
6
Costco’s part. Costco’s assertion that it had an HR department to whom the
employees could have made their situation known means little. As the district court
observed: “Every business has an HR department.” We therefore affirm the district
court’s decision not to reduce plaintiffs’ damages for failure to mitigate.
9. Although Costco makes further arguments, none warrants relief nor compels
further discussion.
10. We affirm the district court’s award of fees and costs. Each party shall bear
its own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART.
7
|
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 20 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PAULA K. STONE, No. 10-35665
Plaintiff - Appellee, D.C. No. 3:08-cv-00356-BR
v.
MEMORANDUM*
BAYER CORPORATION DISABILITY
PLANS, erroneously sued as Bayer
Corporation Long Term Disability Plan, an
employee welfare benefit plan and
BAYER CORPORATION, an Indiana
corporation,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted July 14, 2011**
Portland, Oregon
Before: PREGERSON, WARDLAW, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendants appeal the district court’s grant of summary judgment in
Plaintiff’s favor. For the reasons stated in the district court’s well-written and
well-reasoned Opinion and Order of January 15, 2010, we affirm.
AFFIRMED.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7053
WALLACE MITCHELL,
Plaintiff - Appellant,
versus
Y. ELSWICK; E. C. MORRIS; MORTON GILBERT, SR.;
KEVIN ROBINSON, Officer, Red Onion State
Prison; K. BARNES; DWAYNE HOPKINS; CALVIN B.
WILLIAMS; LIEUTENANT BENNETT; CAPTAIN PEREZ;
ROBERT FULTON; JAMES MURPHY; EDMUND P. WALSH;
GLORIA J. NELSON; CHARLES FRANCIS, St./Red
Onion State Prison; VIRGINIA DEPARTMENT OF
CORRECTIONS; DISTRICT OF COLUMBIA DEPARTMENT
OF CORRECTIONS; LYNN REYNOLDS,
Defendants - Appellees.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-99-46-7)
Submitted: December 16, 1999 Decided: December 21, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Affirmed by unpublished per curiam opinion.
Wallace Mitchell, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wallace Mitchell appeals the district court’s orders denying
relief on his 42 U.S.C.A. § 1983 (West Supp. 1999) complaint and
denying his motion for reconsideration. We have reviewed the rec-
ord and the district court’s memorandum opinion and orders and find
no reversible error. Accordingly, we affirm on the reasoning of
the district court. Mitchell v. Elswick, No. CA-99-46-7 (W.D. Va.
May 21 & July 19, 1999). We dispense with oral argument because
the facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
AFFIRMED
2
|
890 F.Supp. 791 (1995)
Eric Adam SCHNEIDER, Petitioner,
v.
Paul DELO, Respondent.
No. 90CV1968SNL.
United States District Court, E.D. Missouri, Eastern Division.
June 8, 1995.
*792 *793 *794 *795 *796 *797 *798 *799 N. Scott Rosenblum, Ramona L. Martin, Wittner and Poger, St. Louis, MO, for petitioner Eric Adam Schneider.
Frank A. Jung, Asst. Atty. Gen., Office of Atty. Gen. of Missouri, Ray Wagner, Counsel to the Governor, Jefferson City, MO, for respondent Paul Delo.
MEMORANDUM AND ORDER
LIMBAUGH, District Judge.
This matter is before the Court on Petitioner Schneider's First Amended Petition for Writ of Habeas Corpus, filed October 11, 1991. The State of Missouri filed its amended response on December 20, 1991. On February 14, 1992 petitioner filed his reply to the State's amended response.[1]
On October 30, 1985 a jury in the Circuit Court of Jefferson County convicted petitioner of the capital murders of Ronald Thompson and Richard Schwendemann. The jury recommended a sentence of death for the murder convictions. On December 4, 1985 Judge John L. Anderson sentenced petitioner to death. Petitioner filed a motion for a new trial which the trial court denied. The Missouri Supreme Court affirmed the convictions and death sentence on direct appeal. State v. Schneider, 736 S.W.2d 392 (Mo.1987). On February 4, 1988 petitioner filed a pro se *800 Rule 29.15 motion for post-conviction relief.[2] The sentencing court appointed counsel to represent him and appointed counsel filed an amended Rule 29.15 motion. After holding evidentiary hearings on August 24, 1988 and January 6, 1989, the court denied the amended Rule 29.15 motion. Petitioner appealed the denial of his amended Rule 29.15 motion. On April 17, 1990 the Missouri Supreme Court denied the appeal, and shortly thereafter, denied petitioner's motion for rehearing. Schneider v. State, 787 S.W.2d 718 (Mo.1990). On October 1, 1990 the United States Supreme Court denied petitioner's Writ of Certiorari. On October 16, 1990 petitioner filed his Rule 91 state petition for writ of habeas corpus. That same day the Missouri Supreme Court denied his Rule 91 state petition for writ of habeas corpus. It further set an execution date for October 18, 1990.
On October 17, 1990 petitioner filed a motion for stay of execution with this Court, his original petition for writ of habeas corpus, and a motion for appointment of counsel. On October 17, 1990 this Court entered its order staying the execution date of October 18, 1990 and appointing counsel for petitioner. Appointed counsel then proceeded to file the instant amended petition for writ of habeas corpus.
Petitioner has alleged twenty-five (25) grounds of error which he believes support his claim for federal habeas corpus relief. Ground III, alleging ineffective assistance of trial counsel at both the guilt phase and sentencing phase of trial, lists thirty-six (36) separate instances of ineffective assistance of trial counsel. The circumstances of the murders for which Mr. Schneider was convicted are discussed in detail by the Missouri Supreme Court in State v. Schneider, 736 S.W.2d 392 (Mo.1987) and will not be reiterated in this memorandum, except when necessary to support a finding or conclusion reached by this Court. Other than the parties' pleadings, the Court has for review various State exhibits, including but not limited to, the trial transcript (Volumes I-V), preliminary hearing transcript, deposition of David Morgan (one of petitioner's two co-defendants), briefs regarding the direct appeal, transcript of the amended Rule 29.15 evidentiary hearings, briefs regarding the appeal of the denial of the amended Rule 29.15, certified copies of the Missouri Supreme Court's decisions regarding this case, and xerox copies of photographs of the victims. Also submitted for the Court's consideration are petitioner's exhibits 1-10 consisting primarily of the affidavits of his post-conviction counsel, affidavits and psychiatric exam findings of Dr. A.E. Daniel, and affidavits of various family members of the petitioner. Petitioner seeks to expand the record pursuant to Rule 7(a)-(c) of the Rules Governing Section 2254 Cases. As will be elaborated further in this memorandum, the majority of the petitioner's grounds for federal habeas relief are procedurally barred; the remaining grounds can be sufficiently reviewed based upon the record that was presented to the state courts. Since these documents were not part of the state court record, and the petitioner has not offered any reason as to why these documents were not made a part of the state court record, this Court will not engage in further factfinding based upon an expanded record presented to this Court. See, Bolder v. Armontrout, 921 F.2d 1359, 1364 (8th Cir. 1990); Byrd v. Armontrout, 686 F.Supp. 743, 778 (E.D.Mo.1988), aff'd 880 F.2d 1 (8th Cir. 1989) [referred to in Byrd v. Delo, 942 F.2d 1226, 1230 (8th Cir.1991) (consideration of petitioner's third petition for writ of habeas corpus and denying same)].
Similarly, petitioner's request that he be granted an evidentiary hearing and time to conduct further discovery will be denied. The Court has carefully reviewed the pleadings, the trial and evidentiary hearings transcripts, and the state courts decisions regarding this case. Upon review of these documents the Court finds that the record as it now exists is adequate and that no evidentiary hearing or further discovery is required. See, 28 U.S.C. § 2254, Rules 6 and 8(a).
*801 Procedural Bar to Petitioner's Claims
The State contends that a majority of the petitioner's grounds for federal habeas relief are procedurally defaulted because he did not adequately present them to the Missouri state courts.[3] Federal habeas review is barred when a state court has not decided a federal claim on the merits because the petitioner violated a state procedural law. In such cases, the state judgment rests on independent and adequate state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87, 97 S.Ct. 2497, 2503-04, 2506-07, 53 L.Ed.2d 594 (1977). Before a petitioner can bring a § 2254 action, he must have presented the same legal theories and factual bases to the state courts. Forest v. Delo, 52 F.3d 716 (8th Cir.1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.1995); Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir.1994) citing Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). In order for a § 2254 petitioner to avoid default, Missouri post-conviction procedure mandates that each and every claim be presented "at each step of the judicial process". Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994); Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.1994) quoting Benson v. State, 611 S.W.2d 538, 541 (Mo.App.1980). Claims not presented in the state courts through post-conviction relief procedures are procedurally barred unless the petitioner can demonstrate both cause for the procedural default and actual prejudice resulting from the default; or can show that failure to consider the claims will result in a fundamental miscarriage of justice because petitioner has evidence of his "actual innocence". Schlup v. Delo, ___ U.S. ___, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, ___ U.S. ___, ___, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2564-65; Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Schleeper, at 737; Battle v. Delo, at 1552.
Schneider contends that his claims are not procedurally barred pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) because the Missouri Supreme Court in ruling upon his Rule 91 state habeas petition did not "clearly and expressly" state that its denial of the petition was due to procedural default; i.e. its "unexplained ruling" should be considered a ruling on the merits of the claims contained in the petition. In the alternative, Schneider argues that even if his claims (or a majority of them) are procedurally barred, he can demonstrate "cause and actual prejudice" warranting this Court's review of his claims.[4]
In order to establish cause, petitioner must show that some objective factor external to the defense impeded his counsel or his efforts to comply with the state procedural requirements. Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2564-65; Murray v. Carrier, 477 U.S. at 492, 106 S.Ct. at 2647-48. Examples of such "cause" are a "showing that the factual or legal basis for a claim was not reasonably available to counsel", or that "some interference by officials made compliance impracticable". Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645.
Plaintiff consistently argues that even if this Court considers his claims procedurally barred, he has met the "cause" test by the ineffective assistance of his direct appeal counsel, Rule 29.15 post-conviction relief counsel, and Rule 29.15 motion appellate counsel. He argues that the ineffective assistance of his post-conviction counsel for failing to raise his claims on direct appeal, or in his Rule 29.15 motion, or in his appeal of the denial of his 29.15 motion, constitutes "cause" and that the fact that his death sentences have been upheld constitutes "actual prejudice". For reasons which will be *802 set forth when addressing the individual claims, plaintiff has failed to show "cause" for his procedural defaults.
Petitioner's argument that the filing of his Rule 91 state habeas petition and the Missouri Supreme Court's denial of same excuses his procedural default is meritless. Petitioner contends that, pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Missouri Supreme Court's unexplained denial of his Rule 91 state habeas petition constituted a decision on the merits that lifted any procedural bar. In Harris v. Reed, supra, the Supreme Court stated "[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Id., 489 U.S. at 263. However, the Supreme Court clarified the Harris "plain statement rule" in Coleman v. Thompson, supra. The Court explained:
In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.
Id., 501 U.S. at 735, 111 S.Ct. at 2557.
In petitioner's case, the Missouri Supreme Court denied his Rule 91 petition the same day it was filed. In a single sentence, the Court ruled:
Now at this day, on consideration of the petition for writ of habeas corpus herein to the said respondent, it is ordered by the court here that the said petition be, and the same is hereby denied.
State's Exhibit P.
In Byrd v. Delo, 942 F.2d 1226 (8th Cir.1991), the Eighth Circuit Court of Appeals addressed the same situation that exists in the instant case. In Byrd v. Delo, supra, the Missouri Supreme Court denied Byrd's Rule 91 petition using the exact same language as it did in denying Schneider's Rule 91 petition. Not only was the language the same, but the Court had denied Byrd's petition also on the same day it was filed. The Eighth Circuit Court of Appeals found that "[t]he order of the Supreme Court of Missouri denying his Rule 91 habeas petition is simply silent as to the underlying grounds and reasons. It does not `fairly appear[] to rest primarily on federal law, or to be interwoven with the federal law ...' The Harris presumption that federal law was the basis of a state court's decision is therefore inapplicable." Byrd v. Delo, at 1231. The Missouri Supreme Court's language, coupled with the fact that the petition was denied the same day it was filed, indicated to the Eighth Circuit Court of Appeals that "the ground of rejection was not an examination of the merits of the petition, which surely would have taken more time, but rather the application of a procedural rule believed by the Missouri Supreme Court to be plain and obvious"; said rule being that a Rule 91 petition cannot be used to raise claims that should have been raised on direct appeal or in a Rule 29.15 (or its predecessor, Rule 27.26) proceeding. Id., at 1231-32; see also, Jolly v. Gammon, 28 F.3d 51 (8th Cir.1994) (application of Coleman to unexplained denial of motion to recall the mandate and finding such a denial does not open up the merits of previously defaulted claims).
In light of the afore-stated findings, the Court will now address each of the petitioner's twenty-five (25) claims supporting his petition for federal habeas relief.
I. Trial Court erred in excluding certain mitigating evidence during sentencing phase of trial
A. Exclusion of photographs of petitioner as a child
Petitioner contends that the trial court erred in excluding photographs of the petitioner as a child which the petitioner attempted to offer as mitigating evidence during the sentencing phase of his trial. This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did *803 not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his direct appeal counsel was ineffective when counsel failed to raise this claim before the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because it is well-established that there is no constitutional right to counsel in state post-conviction proceedings. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. "Where there is no constitutional right to counsel there can be no constitutional right to effective assistance of counsel." Pollard v. Delo, 28 F.3d at 888 citing Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982); Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992). Thus, post-conviction counsel's failure to raise a claim cannot constitute cause for purposes of overcoming a procedural default. Coleman v. Thompson, 501 U.S. at 753-55, 111 S.Ct. at 2566-68; Jolly v. Gammon, at 54. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced. However, the Court does note that although the photographs of the petitioner were not admitted, his mother did testify to the petitioner's life as a child. Given his mother's testimony, the Court does not believe that the petitioner was actually prejudiced by the trial court's ruling so as to infect the entire trial with error.
B. Exclusion of evidence of co-defendant David Morgan's plea agreement with the State during sentencing phase of the trial
Petitioner argues that the trial court erred in precluding him from presenting evidence of co-defendant David Morgan's plea agreement with the State. He contends that the plea agreement was a relevant "mitigating circumstance" which the jury should have been allowed to hear and consider. Schneider presented this claim to the Missouri Supreme Court on direct appeal; it rejected the claim finding that exclusion of evidence of the plea agreement did not violate Missouri law or petitioner's constitutional rights under the Eighth and Fourteenth Amendments. Schneider v. State, 736 S.W.2d 392, 395-397 (Mo.1987).
Under the terms of his plea agreement, Morgan was to plead guilty to two counts of felony murder, and to "testify truthfully" if he was called as a witness. In exchange the State agreed to recommend that Morgan be sentenced to concurrent thirty (30) year terms of imprisonment on the felony murder counts and to dismiss the other pending charges, including two counts of capital murder. Schneider v. State, 736 S.W.2d at 396. Although both the State and petitioner endorsed Morgan as a witness at petitioner's trial, neither elected to call him as a witness. The State filed a motion in limine to prohibit any reference to Morgan's plea agreement; the trial court sustained the motion. Schneider v. State, 736 S.W.2d at 396. When petitioner attempted to introduce evidence of the plea agreement at the penalty phase of his trial, the trial court denied the offer of proof and ordered both sides to desist from mentioning the plea agreement. Id., at 396.
Under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1976), a defendant should not be precluded from introducing mitigating evidence which is relevant to the "defendant's character, prior record, or the circumstances of his offense." Id., 438 U.S. at 604-05, 98 S.Ct. at 2965. This constitutional categorizing of acceptable mitigating evidence is embodied in Missouri statute § 565.032.3 which provides that a jury shall consider (in addition to other factors specified in the statute),
[a]ny mitigating or aggravating circumstances otherwise authorized by law and supported by the evidence and requested by a party including any aspect of the defendant's character, the record of any prior criminal convictions, and pleas and findings of guilty and admissions of guilt of *804 any crime or pleas of nolo contendre of the defendant[.]
The Missouri Supreme Court considered the language of Lockett v. Ohio, supra and § 565.032.3 R.S.Mo. and determined that the evidence pertaining to Morgan's plea agreement was not relevant, and that the trial court had not abused its discretion in prohibiting this evidence. Schneider v. State, 736 S.W.2d at 396-97.
The admissibility of evidence in a state trial is a matter of state law. Clark v. Groose, 16 F.3d 960, 963 (8th Cir.1994) citing Glaze v. Redman, 986 F.2d 1192, 1195 (8th Cir.1993); Schneider v. Erickson, 7 F.3d 760, 762 (8th Cir.1993). Ordinarily a federal court, in reviewing a federal habeas claim predicated on state law, is bound by the state court's interpretation of state law. Clark v. Groose, at 963. However, a federal court may grant habeas relief when a state court's evidentiary ruling "infringes upon a specific constitutional protection or is so prejudicial that it amounts to a denial of due process." Clark v. Groose, at 963 quoting Turner v. Armontrout, 845 F.2d 165 (8th Cir.1988).
After reviewing the facts of this case and the Missouri Supreme Court's ruling, this Court finds that the trial court did not err in prohibiting the petitioner from introducing evidence of the plea agreement and that neither the trial court nor the Missouri Supreme Court's evidentiary ruling infringed upon a specific constitutional protection or amounted to a denial of due process.
Morgan's plea agreement did not pertain to the defendant's character nor to his prior record. Although Morgan was a co-defendant and his activities in the crime were relevant to the "circumstances of the offense", his plea agreement only pertained to Morgan's sentencing situation. The fact that he had entered into a plea agreement would only have been relevant if he had testified at trial; it certainly would have been permissible for petitioner to use the plea agreement to impeach Morgan's credibility on cross-examination. However, since Morgan did not testify, evidence of the plea agreement was not relevant pursuant to Lockett v. Ohio, supra or § 565.032.3 R.S.Mo.
Furthermore, petitioner's argument that the jury should have considered evidence of the plea agreement in order to conduct a proportionality review is totally meritless. Under Missouri law, it is the Missouri Supreme Court which conducts the proportionality review, not the jury. § 565.035.3(3) R.S.Mo. Missouri law clearly imposes a duty upon the jury to view each capital case individually on its merits as well as the responsibility of the individual defendant. State v. Shaw, 636 S.W.2d 667, 675 (Mo.1982). The trial court did not abuse its discretion is prohibiting the introduction of Morgan's plea agreement. Claim I(b) will be denied as grounds for federal habeas relief.
II. Trial Court erred in striking eight (8) veniremen for cause, thereby creating a death-prone jury
Petitioner argues that the trial court improperly created a "death-prone" jury by striking veniremembers Phegley, Sharpe, Arnhardt, Barreca, Lowen, Roesh, Smith and Rutherford for cause. This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Nave v. Delo, 22 F.3d 802, 808 (8th Cir.1994) citing Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir.1993) ("The failure to satisfy state procedural requirements serves as an adequate and independent state procedural bar to review.").
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
*805 Even if this claim were not procedurally barred, it fails to provide a ground for federal habeas relief. A defendant in a criminal case has a constitutional right to an impartial jury. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). In a capital murder case, a venireperson may be excused for cause because his or her views on capital punishment would "prevent or substantially impair the performance of his [her] duties as a juror in accordance with his [her] instructions." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Consequently, a venireperson may be excused for cause if his or her personal beliefs or views would prevent or substantially impair that venireperson from objectively listening to the evidence, abiding by the law, following the trial court's instructions, and considering the imposition of either a death sentence or a life sentence. Under Missouri law, a juror must be able to consider both sentences. State v. Murray, 744 S.W.2d 762, 768 (Mo.1988); State v. Smith, 649 S.W.2d 417, 425 (Mo.1983).
A review of the merits of this claim requires the Court to examine the state court record. Whatever findings of fact the state court made are entitled to a presumption of correctness and will not be disturbed if they are fairly supported by the record. Forest v. Delo, 52 F.3d 716, 720-21 (8th Cir.1995); Murray v. Delo, 34 F.3d 1367, 1377 (8th Cir.1994). The impartiality of a juror is a question of fact entitled to this presumption of correctness. Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984); Murray v. Delo, at 1377.
The Court has reviewed portions of the trial transcript pertaining to these jurors and finds that these jurors did voice opinions or views which reasonably indicated an inability to participate in sentencing in an impartial manner. Trial Transcript, Vols. I and II, pgs. 279-781. The Court finds that the trial court did not abuse its discretion in striking these jurors for cause.[5] Trial Transcript, pgs. 773, 780.
III. Ineffective assistance of trial counsel during both the guilt phase and sentencing phase of trial
A. Failure to cite caselaw in motion to suppress
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
B. Failure to investigate mental illness defenses
Both the State and the petitioner aver that this claim has been exhausted because it was raised in petitioner's 29.15 motion, the appeal of the denial of said motion, and in petitioner's Rule 91 state habeas petition. After reviewing the state court record, this Court finds that this claim, as raised in the present federal habeas petition, was never presented to the state courts.
In his amended 29.15 motion, petitioner claimed that trial counsel was ineffective because he "failed to secure a psychiatric examination for defendant or to explore the possibility of a psychiatric defense in spite of evidence that defendant may suffer from a *806 mental disease or defect precluding responsibility." State's Exhibit J Legal File; First Amended Motion for Correction of Sentence pursuant to Rule 29.15 Missouri Supreme Court Rules, pg. 76. The motion court held two evidentiary hearings on the amended Rule 29.15 motion. It is clear from the motion court's order denying the motion that it addressed the claim as one of failing to secure a psychiatric examination. The motion court stated:
Petitioner contends that he was denied effective assistance of counsel by trial counsel's failure to obtain a psychiatric examination of the Defendant. Movant adduced relevant evidence at the hearing on this motion from both trial counsel and A.E. Daniel, M.D., his chosen psychiatrist.
Trial counsel, who himself has a B.A. in psychology, indicated he had considered the possibility of a psychological examination upon the Defendant, but had ruled it out. Counsel saw no indication of a mental disease or defect, nor saw any history of such in his interviews with the movant's family. More importantly, an examination under Chapter 552 performed in January of 1983 indicated no mental defect. Counsel testified that he has a policy of not permitting a client to discuss the case with third parties without a good reason for doing so. With no indication for the efficacy of an examination, and fearing that any examination could provide aggravating circumstances, given the Petitioner's record and manner, counsel decided not to have any psychological examination performed. This is very similar to the issue in Strickland [footnote omitted]. Dr. Daniel, after examination of Movant testified that Defendant had a history of attention deficit disorder (hyperactivity) and was capable of rehabilitation based on his remorse. Movant failed to show how Defendant's history could reasonably change the outcome of the case and the record, as noted by the Missouri Supreme Court, indicates a lack of remorse by the Petitioner. As the Supreme Court noted in Strickland, "There are countless ways to provide effective assistance of counsel in a given case. Even the best criminal defense attorney's [sic] would not defend a particular client in the same way." Strickland at 689.
State's Exhibit J Legal File, Motion Court's Findings of Fact and Conclusions of Law (re Amended Rule 29.15 Motion), pgs. 6-7 (pgs. 18-19 of the exhibit). In his brief on appeal of denial of the Rule 29.15 motion, petitioner's Point I on appeal reads as follows:
THE TRIAL COURT CLEARLY ERRED IN DENYING APPELLANT'S MOTION TO VACATE SENTENCE BECAUSE COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK A MENTAL EVALUATION IN MITIGATION OF PUNISHMENT IN THAT COUNSEL SHOULD HAVE BEEN PUT ON NOTICE, BY APPELLANT'S DRUG ABUSE, HYPERACTIVITY, CUTTING OF HIS WRIST, HIS TWO SISTER'S [sic] PSYCHIATRIC HISTORY, AND THE ABSENCE OF A DIAGNOSIS OF A SOCIOPATHIC CONDITION, THAT AN EXAMINATION WOULD PROVE HELPFUL AND WOULD NOT PROVE HARMFUL. APPELLANT WAS PREJUDICED IN THAT THE JURY WAS DENIED IMPORTANT INFORMATION ON WHICH TO BASE A LIFE SENTENCE, PARTICULARLY HIS CAPACITY FOR FEELING, [sic] REMORSE, AND REHABILITATION.
State's Exhibit K, pg. 15. The body of the brief clearly addresses the issue as trial counsel's ineffectiveness for failing to secure a psychiatric examination in order to present mitigating evidence during the penalty phase. The State also presented the issue on appeal as one of trial counsel's ineffectiveness for failing to obtain a mental evaluation for purposes of providing mitigating evidence at the penalty phase. State's Exhibit L.
Finally, the Missouri Supreme Court clearly addressed the issue on appeal as trial counsel's ineffectiveness for failing to secure a psychiatric examination. "Schneider charges counsel was ineffective in failing to seek a mental evaluation." Schneider v. State, 787 S.W.2d 718, 720 (Mo.1990). The Court reviewed the testimony adduced at the 29.15 motion hearings and found that trial counsel decided "as a matter of trial strategy, *807 not to have a psychological examination done." Schneider v. State, 787 S.W.2d at 720. The court concludes that "[m]ovant fails his burden to show how a psychological evaluation would have changed the outcome of the case." Id., at 721.
However, in his amended federal habeas petition, petitioner now states his claim as:
"[n]ot only is Petitioner alleging his trial counsel was ineffective for failing to investigate the defense of mental disease or defect, but also for failing to investigate: 1) evidence of a diminished capacity defense; 2) defense of lack of the requisite mental intent to commit first degree murder or the underlying felony for felony murder; and 3) defense of insanity at the time of the offense as well as at the time of trial and sentencing. This inadequacy was shown by counsel's failure to gather a social and medical history of Petitioner and to have a psychiatric evaluation performed on Petitioner to determine if any of the aforementioned defenses could be raised."
Petitioner's Traverse to Respondent's Response, pg. 12.
"The particular factual and legal basis for the claim asserted in a state prisoner's federal habeas petition must have been brought to the attention of the state courts in order to satisfy the exhaustion of state remedies requirement of 28 U.S.C. § 2254(b)." Forest v. Delo, at pg. 721 citing Keithley v. Hopkins, at 1217; Flieger v. Delo, 16 F.3d 878, 884-85 (8th Cir.1994). The only portion of this claim that is not procedurally defaulted is trial counsel's alleged ineffectiveness for not securing a mental examination for purposes of presenting mitigating evidence at the penalty phase. The other portions of this claim, i.e. failing to investigate a variety of mental defenses, are procedurally defaulted and petitioner has failed to make any showing of cause for failing to present these portions of his claim in his 29.15 motion or appeal of the denial of the motion.
In order to prevail on a habeas claim of ineffective assistance of trial counsel, petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). He must show that 1) trial counsel's performance fell below an objective standard of reasonableness in that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would use under similar circumstances; and 2) that he was prejudiced by this deficiency. Id., 466 U.S. at 687-88, 104 S.Ct. at 2064-65; Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir.1994); Flieger v. Delo, at 886; Battle v. Delo, at 1554. Petitioner was prejudiced by his trial counsel's ineffective performance if he can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different", Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, or trial counsel's errors rendered the proceeding unreliable or fundamentally unfair, Lockhart v. Fretwell, ___ U.S. ___, ___, 113 S.Ct. 838, 844, 122 L.Ed.2d 180; Adams v. Leapley, 31 F.3d 713, 714 (8th Cir.1994); Battle v. Delo, at 1554. However, trial counsel's representation is entitled to a presumption of reasonableness, and the courts should review counsel's performance as of the time of trial and "not view it with the distorting tint of hindsight." Battle v. Delo, at 1555 citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Trial counsel's reasonable trial strategies cannot constitute ineffective assistance of counsel, even if they prove to be unsuccessful. Flieger v. Delo, at 886 citing Riley v. Wyrick, 712 F.2d 382, 385 (8th Cir. 1983). This Court will review the record because the issue of ineffective assistance of counsel is a mixed issue of law and fact, Flieger v. Delo, at 886, but as noted before, the factual findings of the state courts (both trial and appellate) are presumed to be correct. Id., at 886 citing Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981).
Petitioner contends that his trial counsel was ineffective for not securing a mental exam in order to present mitigating evidence. Both the 29.15 motion court and the Missouri Supreme Court extensively discussed the relevant facts behind trial counsel's decision. The state courts considered trial counsel's explanation that petitioner was always coherent, understandable, and appeared to fully appreciate the nature of the *808 charges against him. A mental examination under Chapter 522 in January of 1983 (in connection with other criminal charges) was "unremarkable" no evidence of mental disease or defect. Counsel was concerned about petitioner speaking with a third party because petitioner was denying guilt at the time. Counsel feared an unfavorable psychiatric report and having the psychiatrist testify as to petitioner's denial of committing the murders would leave a bad impression with the jury. Counsel also feared that a psychiatric examination would open up the door for prejudicial, discoverable information. Given petitioner's criminal record and demeanor, counsel believed the best strategy was not to have a psychological examination done. See, Schneider v. State, 787 S.W.2d at 720-21; State's Exhibit J Legal File, pgs. 18-19 (Motion Court Order of June 27, 1989, pgs. 6-7).
The Court has examined the state courts' factual findings and concurs that the record supports trial counsel's decision as being reasonable in light of the circumstances at the time. Schneider asserts that an examination was warranted because of his drug abuse, hyperactivity, cutting of his wrist, and two of his sisters' psychiatric history. He maintains an examination would have revealed his capacity for remorse, rehabilitation, and productive work. He offers several exhibits (not offered to the state courts) evidencing psychological and social services reports produced after he was tried and convicted for the capital murders.
These exhibits are irrelevant to this Court's consideration of whether trial counsel's actions were reasonable given the circumstances present at the time of trial. The only document which has any bearing on the Court's inquiry is the January 21, 1983 mental examination report prepared by the Missouri Department of Corrections Classification and Assignment Unit. According to this report, petitioner claimed to have been drug-free since 1981. His only treatment for any psychological problem was in 1982 when he slashed his wrist while in the St. Louis City Work House. According to the report, Petitioner admitted that he had been depressed over his life at the time. He further admitted that no one knowledgable about the incident believed he was seriously trying to take his life. He claimed that he had never made any other "suicide attempts". There is no mention of hyperactivity as a clinical diagnosis. This report mirrors the earlier findings of staff personnel at the Malcolm Bliss medical facility. State's Exhibit J, pgs. 57-60 (report dated January 4, 1983).
Petitioner has failed to make any showing that trial counsel's decision to forego a psychiatric examination was unreasonable, and that there is a reasonable probability that having the exam would have changed the outcome of his sentencing. Plaintiff had several felony convictions. There is no evidence on the record that plaintiff had been abusing drugs prior to the commission of the murders. A recent 522 mental exam showed no evidence of mental disease or defect. Plaintiff does not dispute trial counsel's testimony that he was coherent and fully understood the nature of the charges and the punishment he faced. Plaintiff has failed to show how an alleged childhood diagnosis of hyperactivity[6] would have convinced a jury to relieve him of the responsibility of planning and committing two heinous brutal murders as a twenty-four (24) year old man. As for the mental exam demonstrating plaintiff's capacity for remorse, the Court is not surprised that a defendant facing a death sentence would acquire such remorse for his acts; however, this Court is not convinced that a jury would have been moved by this "after-the-fact" remorse, especially since the trial record shows that "[n]ot only is there no showing of remorse on the part of this defendant, but to the contrary he demonstrated an offensive air of braggadocio when boasting to *809 others how he brought about the deaths of the victims." State v. Schneider, 736 S.W.2d 392, 404 (Mo.1987). Trial counsel's decision not to secure a mental examination was reasonable trial strategy and petitioner has failed to show how a psychological evaluation would have changed the outcome of the case.
C. Failure to object to the State's strikes for cause
D. Failure to object to the trial court's dismissal of venirepersons holding World Series tickets
E. Failure to object to trial court excusing venirepersons with minor children
F. Failure to object to trial court excusing venirepersons with work-related problems
Petitioner failed to raise any of the four above-stated incidents of trial counsel's alleged deficient performance in his 29.15 motion or in his appeal of denial of said motion; consequently, they are procedurally barred. Foster v. Delo, at 880.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise these claims before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
G. Failure to investigate and present evidence regarding a broken window in petitioner's car
Petitioner raised this claim in his 29.15 motion but failed to raise it in his appeal of the denial of the motion. Failure to raise a claim on appeal from the denial of a post-conviction motion procedurally bars federal habeas review of the claim. Jolly v. Gammon, at 53; Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988).
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 appeal counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 appeal counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Jolly v. Gammon, at 54.[7]
H. Failure to investigate and present evidence that the State's witness Tom Herrick knew that his mother Barbara Holt was facing criminal charges
The essence of petitioner's claim is that Tom Herrick's testimony was not credible because his mother Barbara Holt (co-defendant Charles Palmer's girlfriend) was facing criminal charges and was in danger of losing custody of her other children. Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel and 29.15 appeal counsel were ineffective for failing to raise this claim before the motion court and the Missouri Supreme Court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 motion and appeal counsel cannot constitute cause for purposes of overcoming the procedural *810 default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Jolly v. Gammon, at 54; Pollard v. Delo, at 888; Clark v. Groose, at 965.
Even if this claim were not procedurally barred, petitioner has failed to show that he was actually prejudiced by trial counsel's failure to examine Tom Herrick as to his motives for testifying. The trial record shows that trial counsel extensively questioned Ms. Holt directly as to her motives for testifying. Trial Transcript, pgs. 1547-1552. The trial record shows that counsel explored the issue of police pressure on Ms. Holt to testify (against the petitioner). Since the issue had been presented and explored with the witness who would have been most knowledgeable about it, counsel's decision not to resurrect the matter with her son Tom Herrick was reasonable. Petitioner has failed to show Strickland prejudice.
I. Failure to present alibi defense by presenting evidence that petitioner's girlfriend Dana Messner was "coerced" into not testifying
Petitioner raised this claim in his 29.15 motion but failed to raise it in his appeal of the denial of the motion. Failure to raise a claim on appeal from the denial of a post-conviction motion procedurally bars federal habeas review of the claim. Jolly v. Gammon, at 53; Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988).
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 appeal counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 appeal counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Jolly v. Gammon, at 54.
J. Failure to exclude evidence of "inconclusive" blood and fingerprint tests
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
K. Failure to present evidence that co-defendant Charles Palmer and his girlfriend Barbara Holt "routinely rolled queers"
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the trial court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
*811 L. Failure to investigate and present alibi evidence regarding Pat Woodside
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
M. Failure to adequately litigate motion for change of venue
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
Furthermore, the trial record shows that trial counsel submitted approximately sixty-five (65) newspaper articles, radio broadcast or television reports pertaining to the case. He also presented the testimony of a State Representative and Jefferson County Commissioner who were former neighbors of the victims. Trial Transcript, pgs. 9-39; State v. Schneider, 736 S.W.2d at 403. Finally, trial counsel extensively argued on his client's behalf to the trial court why he believed a change in venue was necessary. Trial Transcript, pgs. 39-47, 49-52, 53. The Court finds that trial counsel's litigation of this matter was thorough and that petitioner has failed to show that it meets the Strickland standard for ineffective assistance. The fact that the trial court rejected counsel's argument is not any indication that counsel's performance was deficient. Flieger v. Delo, at 886.
N. Failure to respond adequately to the State's argument that petitioner planned the robbery and murders
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
O. Failure to object to the prosecutor's remarks regarding the petitioner's failure to testify
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of *812 same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
Furthermore, the trial record does not indicate any remark made by the prosecutor regarding the petitioner's failure to testify. It appears that this claim is directed not at the prosecutor's remarks (or lack thereof) regarding petitioner's failure to testify, but rather to the prosecutor's questioning of the State's witness Roland Johnson which elicited a response referencing the petitioner's post-arrest silence.
The court record indicates that the prosecutor asked Johnson why Johnson did not make a statement the first time he talked to the police. Johnson replied, "[t]he reason I didn't make a statement the first time I felt as though Schneider or Morgan would go ahead and tell their side of the story." Trial Transcript, pg. 1361. It is clear that the prosecutor's question was directed solely at Johnson's motivation for keeping silent, not at petitioner's post-arrest silence. Petitioner hasn't demonstrated any knowledge on the part of the prosecutor that he knew that Johnson would respond to the question by referencing Schneider's post-arrest silence. Petitioner hasn't demonstrated why trial counsel should have objected to the question since it did not in anyway implicate petitioner's post-arrest silence. Such an objection would have been overruled. Trial counsel's performance was not deficient under the Strickland standard.
P. Failure to object to the trial court allowing the jurors unrestricted access to television
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
Q. Failure to poll the jury after rendering a guilty decision
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
R. Failure to depose the State's witnesses Kenny and Beverly LaVear to determine if a conflict of interest existed
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally *813 barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
Furthermore, the Court has carefully reviewed the trial record in this case and finds that trial counsel's performance was not ineffective given the circumstances. On the third day of trial, witness Pat Woodside suddenly informed the State that her testimony had been incorrect in that when she visited petitioner a second time at his residence, she took along her brother-in-law Kenny LaVear, not her boyfriend as she had previously testified. She further informed the State that Kenny LaVear had purchased a microwave from petitioner (one of several items stolen from the murder victims' home). Neither Kenny nor Beverly LaVear had ever been identified as having any connection to the case. As soon as the State knew about the LaVears, prosecutors told petitioner's counsel. Counsel's preliminary investigation revealed that one or both of the LaVears may have been represented at one time or another by the Jefferson County Public Defenders' Office. Counsel was given about forty-eight (48) hours to talk to the LaVears and to do a background check. Counsel talked to the LaVears by telephone. A background check indicated that Kenny LaVear had been represented in 1977 and 1980 on misdemeanor trespassing charges by the Jefferson County Public Defenders' Office (neither of petitioner's trial counsel had been employed by the Jefferson County Public Defenders' Office at these times). Beverly LaVear was represented by the Jefferson County Public Defenders' Office from October 1994 until shortly before trial began in the petitioner's case. Trial counsel argued extensively that the State be prohibited from endorsing either one of the LaVears as witnesses, or in the alternative, that a continuance be ordered so that counsel could more thoroughly investigate the LaVears' background and their alleged involvement in the case. The trial court rejected both arguments, specifically finding that no conflict existed because 1) Beverly LaVear was not being called as a witness; and 2) Kenny LaVear had been represented by other public defenders long before either one of petitioner's counsel had joined the Jefferson County Public Defenders' Office; 3) Kenny LaVear's trespassing convictions were of public record and any investigation notes (confidential discussions, etc.) pertaining to these convictions were totally irrelevant to the petitioner's case and would not place counsel at an advantage because of the earlier representations by the Public Defenders' Office; and 4) Kenny LaVear's testimony was secondary, i.e. was corroborative and cumulative of Pat Woodside's testimony. Trial transcript, pgs. 953-966, 1598-1613.
An actual conflict of interest may constitute the cause and prejudice necessary to overcome a procedural bar. Nave v. Delo, 22 F.3d 802, 811 (8th Cir.1994). The petitioner must show that "an actual conflict of interest adversely affected his lawyer's performance." Nave v. Delo, at 811 citing Salam v. Lockhart, 874 F.2d 525, 527 (8th Cir. 1989) [quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)]. "Neither a possible conflict nor the appearance of impropriety are sufficient to demonstrate the existence of an actual conflict; the claimant must show that `his counsel actively represented conflicting interests.'" Nave v. Delo, at 811 (citations omitted). Petitioner has failed to present any facts which might demonstrate that an actual conflict of interest existed. He relies solely on the minimal relationship that the Jefferson County Public Defenders' Office had with a State witness, on totally unrelated charges *814 several years earlier, to contend that a possible conflict of interest existed. He further speculates that this possible conflict prevented his counsel from deposing the LaVears. The trial record belies this supposition; both the State and trial counsel were surprised during trial with the LaVears' existence, trial counsel tried to get the trial court to refuse to allow the State to endorse the LaVears as witnesses, trial counsel tried to get a continuance, the trial court rejected both options, and despite the extremely short amount of time to gather information on the LaVears, trial counsel did speak with them and resurrected old files stored by the Public Defenders' Office to review. The Court concurs with the trial court's findings that an actual conflict of interest did not exist due to the minimal representation by other counsel on totally unrelated charges a number of years earlier; and that Kenny LaVear's testimony would not necessitate any cross-examination regarding confidential matters pertaining to his representation by the Jefferson County Public Defenders' Office. Consequently, petitioner has failed to establish cause to overcome the procedural bar.
S. Failure to adequately cross-exam Kenny LaVear
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
Furthermore, the trial record indicates that trial counsel's "limited" cross-examination of Kenny LaVear was not due to any possible conflict of interest, but rather due to the short notice given by the State that it intended to call Mr. LaVear as a witness. Petitioner fails to identify what other questioning his counsel should have engaged in with regard to Mr. LaVear. The trial record shows that trial counsel thoroughly examined Mr. LaVear as to his connection with the stolen merchandise, and his relationship to Pat Woodside. Trial Transcript, pgs. 1678-1684. Finally, petitioner fails to demonstrate but for trial counsel's failure to ask (unidentified) questions he would not have been found guilty or sentenced to death. The Court finds no basis for excusing the procedural default.
T. Failure to object to evidence of petitioner's prior convictions as an aggravating circumstance during the penalty phase of the trial because these prior convictions were invalid i.e. petitioner claims that his counsel in these earlier criminal proceedings rendered ineffective assistance, thus his prior convictions are unconstitutional
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
This claim is meritless. Petitioner does not attack the fact that these prior convictions exist or that the State was well within its right to present them as an aggravating circumstance under Missouri law. Instead, he is using this federal habeas proceeding to collaterally attack the merits of the prior convictions. As far as this Court can ascertain, petitioner never challenged *815 these convictions in post-conviction proceedings at the time of these earlier convictions. If petitioner is procedurally barred from raising claims pertaining to the instant conviction and sentence because he failed to raise them in the state courts, he most certainly is procedurally barred from raising an ineffective assistance claim pertaining to another counsel's performance in another trial which was never raised to the state courts during that trial's post-conviction proceedings. As for trial counsel's failure to object to the prior convictions because of the alleged deficient performance of other trial counsel in other cases, the Court agrees with the State that counsel would have been rebuked (probably severely) by the trial court for attempting to challenge the constitutionality of those convictions. This Court finds trial counsel's restraint quite reasonable under the circumstances.
U. Failure to investigate and present mitigating evidence at penalty phase of trial regarding petitioner's social history and background, hyperactivity, substance abuse, psychiatric problems, rehabilitation potential, educational deficiencies, employment history, and capacity for the arts
The State contends that this claim is procedurally defaulted because it was not presented to the 29.15 motion court or on appeal of the denial of the 29.15 motion. The State avers that this claim is not the same claim which was raised before the 29.15 motion court and on appeal of the denial of the motion, i.e. that claim was for failure to secure a mental exam because trial counsel was allegedly "put on notice" that plaintiff was hyperactive, a substance abuser, a deficient education, etc. Petitioner argues that this claim is not procedurally defaulted because "although not artfully stated" it was preserved by petitioner's 29.15 motion and the appeal therefrom.
The Court has reviewed the 29.15 motion court's order denying the motion, State's Exhibit J Legal File, Motion Court's Findings of Fact and Conclusions of Law (re Amended 29.15 Motion), pgs. 7-8 (pgs. 19-20 of the exhibit); as well as the Missouri Supreme Court's opinion regarding the appeal of the denial of the post-conviction motion, Schneider v. State, 787 S.W.2d 718 (Mo.1990). Although the Court agrees that this claim was "inartfully stated" in the amended 29.15 motion, it is evident that both the motion court and the Missouri Supreme Court did address the basic issue raised in the claim. "A federal court may consider the merits of a claim made in a habeas corpus petition if the petitioner has fairly presented to the state courts the substance of his claim." Guinan v. Armontrout, 909 F.2d 1224, 1227 (8th Cir.1990). The Court finds that this claim is not procedurally defaulted. See, Hill v. Lockhart, 28 F.3d 832, 834-35 (8th Cir.1994) (citations omitted).
This Court has already reviewed a large part of the essence of this claim in Subsection B of this opinion. It will only reiterate that given the information at the time, and trial counsel's review of the petitioner's demeanor and criminal background, trial counsel's decision not to pursue a psychiatric examination was reasonable trial strategy. This Court's review of the trial record supports the motion court's findings that petitioner did not offer any evidence which would have put his mental state at issue. Petitioner's past psychiatric history was for the most part unremarkable. Dr. Daniel's testimony revealed only that petitioner had normal intelligence, had understood the criminal charges brought against him, had understood the risk of the imposition of the death penalty, and although had no remorse for the murders because he was denying any involvement in them, he was capable of remorse. State's Exhibit I. After reviewing the evidence actually available at the time of trial, trial counsel's testimony regarding his reasons for not further exploring the need for an independent psychological evaluation, and even reviewing the evidence petitioner argues should have been presented[8], this Court does not agree that in *816 all probability the jury would have been persuaded differently by the type of psychiatric evidence the petitioner feels should have been offered. See, Murray v. Delo, 34 F.3d 1367, 1380-81 (8th Cir.1994). Petitioner fails to demonstrate prejudice pursuant to Strickland. Compare, Hill v. Lockhart, supra.
Finally, as to the rest of the claim, the Court finds that trial counsel's performance was not ineffective under the Strickland standard. Missouri courts have consistently held that counsel has no absolute duty to present mitigating character evidence at the penalty phase of a trial, even in a death penalty case, and that the choice of witnesses is a question of trial strategy. Schneider v. State, supra; Jones v. State, 767 S.W.2d 41 (Mo.1989); Bolder v. State, 712 S.W.2d 692 (Mo.App.1986); Newlon v. State, 705 S.W.2d 590, 594-95 (Mo.App.1986). However, counsel does have a duty to exercise reasonable diligence to investigate possible mitigating evidence in order to make an informed strategic decision as to whether or not to utilize such evidence. Counsel may be found to have rendered ineffective assistance if s/he fails to investigate or investigates inadequately. Battle v. Delo, at 1555, n. 4; Chambers v. Armontrout, 907 F.2d 825, 828-31 (1990).
The motion court found that trial counsel had interviewed various family members and found their proposed testimony questionable and not particularly supportive. He was also concerned about their hostile attitude regarding the conviction. Trial counsel decided to have only the petitioner's mother testify as to petitioner's artistic abilities, employment history, social history, educational deficits, alleged substance abuse, and general background. Schneider v. State, 787 S.W.2d at 721; Trial Transcript, pgs. 1933-41. Consequently, petitioner was not prejudiced by trial counsel's performance because all the information petitioner claims trial counsel failed to present was presented through petitioner's mother's testimony.
V. Failure to request funds for expert services, including those of a mental health expert
The State contends that this ground is procedurally defaulted because it was not raised in petitioner's amended 29.15 motion or in the appeal of the denial of the motion. Petitioner contends that this ground is not procedurally defaulted because it was raised in the context of his claim of ineffective assistance of counsel for failure to secure a mental examination.
The Court has carefully reviewed the petitioner's amended 29.15 motion, the findings of the motion court, and the findings of the Missouri Supreme Court on the appeal of the denial of the motion. It is clear that this ground was never presented to the motion court or to the Missouri Supreme Court. Nowhere in their findings is there any reference to trial counsel's alleged deficient performance for failing to secure funds for expert services, mental health or otherwise. Furthermore, to the extent this claim is related to trial counsel's failure to secure a psychological examination, it is redundant. This ground is procedurally barred.
W, X, Y, Z, AA, BB, CC, DD, and EE. Failure to call Edward Schneider, Jr., Tina Marie Hockenberry, Gary Hockenberry, Media Schneider, Edward Schneider, Sr., Darlene Hedricks, Media Hendricks, Victoria Bradshaw, and Darlene Hockenberry (all family members) as witnesses during penalty phase of trial
This issue was raised both in the petitioner's amended 29.15 motion, and in his appeal of denial of the motion; consequently, it is not procedurally barred.
Trial counsel testified at the 29.15 motion hearings that after consulting with the family members he found them to be hostile toward *817 the jurors for finding the petitioner guilty, and their "character testimony" not particularly meaningful and somewhat repetitive. He was also greatly concerned about their intent to tell the jury about co-defendant David Morgan's plea agreement, which the trial court had already ruled inadmissable. As a matter of trial strategy, he decided to have only petitioner's mother testify regarding the petitioner's childhood, his problems growing up, his education, and his artistic abilities. State's Exhibit H Transcript of the 29.15 Motion Hearing, pgs. 34-41, 48-49, 53-54, 76-79. The motion court, after hearing the named family members testify, found that "[t]he family members that testified in this proceeding were weak and offered little. What they offered in terms of intra family interaction does not really tell us anything of substance and could be found in good, bad, or indifferent family members." State's Exhibit J Motion Court's Findings of Fact and Conclusions of Law, pg. 8 (Exhibit pg. 20). The Missouri Supreme Court reviewed the motion court's hearing transcript and the motion court's findings. It found that under Missouri law, counsel did not have any absolute duty to present mitigating evidence at the penalty phase of a trial, even in a capital murder case. It found that Missouri law only required counsel to make a reasonable investigation of possible mitigating evidence before making strategic choices. It found that if an attorney believes that testimony would not unequivocably assist his/her client, then it is a matter of trial strategy not to call that witness to testify. Based upon its factual findings and application of Missouri law, the Missouri Supreme Court determined that trial counsel was not ineffective and petitioner had not been prejudiced by trial counsel's decision to call only petitioner's mother to testify regarding petitioner's character and background. Schneider v. State, 787 S.W.2d at 721.
This Court has reviewed the trial record, the transcript of the 29.15 motion hearings, the motion court's ruling on the 29.15 motion, and the Missouri Supreme Court's ruling on appeal of the denial of the 29.15 motion. Trial counsel made a reasonable investigation into the family members' attitudes and proposed testimony and determined that their demeanor, attitude, and proposed testimony was not going to be beneficial to petitioner. He determined, that as a matter of trial strategy, he needed to present some type of "positive" character evidence and that petitioner's mother would be most knowledgable about petitioner's childhood and best able to present character evidence in a favorable manner. This decision is consistent with the Strickland standard in that strategic decisions "made after thorough investigation of law and facts ... are virtually unchallengable," even if such decisions prove later to have been unsuccessful. Battle v. Delo, at 1555-56 citing Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2065-66. Trial counsel's decision not to call these named family members was reasonable at the time, and did not amount to ineffective assistance of counsel.
FF. Failure to present mental health testimony at penalty phase of trial
The State contends that this issue was not the same issue as raised in petitioner's amended 29.15 motion and in the appeal of the denial of the motion. As stated before, although the claim before both the motion court and the Missouri Supreme Court was stated in terms of trial counsel's failure to secure a mental examination, it appears to this Court that both state courts addressed the issue a bit more broadly. Consequently, this Court finds that the instant ground is not procedurally defaulted.
The Court incorporates its findings under Subsection U. and simply reiterates that this Court's independent review of the trial record and post-conviction motion hearing record supports the state courts' findings regarding the absence of mental health evidence at the penalty phase of petitioner's trial. Petitioner's mental health status was never an issue in the case. His defense was one of not being involved in the murders but simply only attempting to "fence" the murder victims' stolen items. A recent 522 mental examination showed no evidence of any mental disease or defect. At petitioner's motion hearing, trial counsel testified that petitioner was always coherent, understandable, and understood the charges against him. See, *818 Schneider v. State, 787 S.W.2d at 720. The only evidence of petitioner's hyperactivity is his mother's vague recollection that over twenty (20) years earlier (prior to the murders) petitioner had been prescribed Ritalin by an unknown physician. Petitioner has presented no medical records to substantiate a medical diagnosis of hyperactivity. Dr. Daniel's testimony at the motion hearing clearly shows, that in formulating his opinion, he accepted this undocumented and unsubstantiated childhood medical diagnosis as being correct. State's Exhibit I, pgs. 8-10, 23, 25-26. He then postulated that petitioner's life from that point on was dictated by his "hyperactivity". He further connected petitioner's history of drug abuse and involvement with street gangs to this "diagnosis". However, no where in his testimony does he state that based upon his own examinations of the petitioner, this "diagnosis" is correct. Instead he testifies, that based on his own examinations, petitioner possesses normal intelligence; was not disoriented as to time and place; has normal speech, comprehension, abstract thinking, and reasoning abilities; and no formal thought disorder. State's Exhibit I, pgs. 19-22. Essentially, Dr. Daniel's motion hearing testimony supports trial counsel's motion hearing testimony that there was no indication that petitioner's mental health status was an issue upon which testimony should have been presented.
There simply is no well-documented and credible evidence of any mental illness history which trial counsel should have presented to the jury at the penalty phase of the trial. Petitioner's own self-history, at the time of his trial, was that he had stopped abusing drugs some years before and had received treatment. He possesses normal intelligence, normal abilities regarding abstract thinking and comprehension, normal orientation as to time and place, and suffers from no formal thought disorder. He was able to understand the charges brought against him and to participate in his defense. This Court finds that trial counsel's decision not to present mental health testimony was within the range of "professionally competent assistance". Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2065-66; see also, Murray v. Delo, at 1380-81; Bannister v. Armontrout, 4 F.3d 1434, 1441-43 (8th Cir. 1993).
GG. Failure to object to the instruction on statutory mitigating evidence
In his traverse to the State's response to the petitioner's first amended petition for writ of habeas corpus, petitioner modifies this ineffective assistance ground as follows: "Although the issue is not clearly presented, Petitioner asserts his trial counsel was ineffective for submitting the instruction on mitigation as well as for not objecting to it." Petitioner's Traverse, pg. 28. The Court is unclear as to why or how trial counsel was to object to an instruction that counsel himself requested. No matter what petitioner is attempting to plead, it is clear that any ineffective assistance claim regarding trial counsel's submission of the mitigating instruction is procedurally defaulted. Petitioner failed to raise such a claim in his amended 29.15 motion or in his appeal of the denial of same. See, Schneider v. State, 787 S.W.2d at 721.
However, petitioner's ineffective assistance claim regarding trial counsel's failure to object to the mitigating instruction is not procedurally barred. The Missouri Supreme Court found the instruction[9] was constitutional. Schneider v. State, 787 S.W.2d at 721 citing Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Roberts v. State, 775 S.W.2d 92, 96 (Mo.1989).
The Eighth Circuit has consistently held that Missouri's mitigating circumstances instruction is constitutional. Murray v. Delo, at 1381; Nave v. Delo, at 815; Battle v. Delo, at 1562. Petitioner has failed to make any showing that the jury misconstrued the instruction rendering the sentencing decision invalid. See, Battle v. Delo, at 1562. Furthermore, the Eighth Circuit has held that *819 counsel's failure to raise a Mills v. Maryland challenge to the instruction on mitigating circumstances is not ineffective assistance of counsel. Nave v. Delo, at 815; Grubbs v. Delo, 948 F.2d 1459, 1471 (8th Cir.1991). This ground for ineffective assistance of trial counsel is meritless.
HH. Failure to object to an invalid aggravating circumstances instruction which did not properly define and limit the aggravating circumstances
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
II. Failure to argue to the trial court that it need not impose the death sentence as recommended by the jury
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
JJ. Failure of trial counsel to take adequate time interviewing the petitioner in order to "learn about him"
Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880.
Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
As a final assertion, petitioner states that all of his grounds for ineffective assistance of trial counsel, when taken together, clearly demonstrate that a "fundamental miscarriage of justice" occurred at his trial.
As to petitioner's procedurally barred ineffective assistance of trial counsel claims, he could still present such claims to this Court, even after failing to establish "cause and prejudice", if these claims fit within the "narrow scope of the fundamental miscarriage of justice exception". Schlup v. Delo, supra; Sawyer v. Whitley, ___ U.S. ___, ___, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). This narrow exception to a procedural bar is tied to the petitioner's innocence and is specifically "concerned with actual as compared to legal innocence." Jolly v. Gammon, at 54 quoting Sawyer v. Whitley, ___ U.S. at ___, 112 S.Ct. at 2519. A petitioner may obtain review of his/her procedurally barred claims, despite failing to establish "cause and prejudice", if s/he can *820 demonstrate to the federal court that s/he is either "actually innocent" of the commission of the crime for which s/he has been convicted, or "actually innocent" of the death penalty. The standards of proof differ depending upon which assertion of actual innocence the petitioner is making.
If the petitioner asserts an injustice due to erroneous conviction, then "[t]he Carrier standard requires the habeas petitioner to show that `a constitutional violation has probably resulted in the conviction of one who is actually innocent'... [t]o establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, ___ U.S. at ___, 115 S.Ct. at 867 quoting Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649-50. Specifically, petitioner must show that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, ___ U.S. at ___, 115 S.Ct. at 867. However, if petitioner asserts an injustice due to erroneous sentencing, then petitioner has the burden to "show by clear and convincing evidence that but for a constitutional error, no reasonable juror" would have found the petitioner eligible for the death penalty under state law. Sawyer v. Whitley, ___ U.S. at ___, 112 S.Ct. at 2523; Murray v. Delo, at 1381; Nave v. Delo, at 810; Battle v. Delo, at 1554; McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992).
Schneider's assertion of a "fundamental miscarriage of justice" is extremely vague. He fails to distinguish whether such an injustice would occur because trial counsel's alleged deficient performance resulted in his conviction for a crime he did not commit; or whether trial counsel's alleged ineffective assistance resulted in him receiving a death sentence for which he was not eligible. Given the vagueness of petitioner's assertion, the Court's analysis incorporates both the Carrier and Sawyer standards.
After reviewing the evidence actually adduced at trial, as well as the evidence Schneider alleges should have been included, this Court finds that petitioner has failed to demonstrate that any reasonable juror would not have convicted him of the capital murders or would have recommended a life sentence instead of the death penalty. He has not provided the Court with any new evidence that his conviction was the probable result of his trial counsel's alleged deficient performance. Although the Court has rejected the petitioner's attempt to formally expand the factual record, it has reviewed the affidavits and prison file documents submitted in the context of this analysis and determines that they do not constitute clear and convincing evidence that but for trial counsel's alleged ineffective assistance, no reasonable juror would have found petitioner eligible for the death penalty.
Finally, this Court also rejects petitioner's assertion that the alleged instances of trial counsel's deficient performance cumulatively establish a general claim of ineffective assistance of trial counsel. This Court's review of the entire trial record indicates that Schneider's trial counsel was diligent, competent, and extremely conscientious in his representation of petitioner.
IV. Petitioner was denied his right to individual sentencing due to the impermissible admission of victims' impact testimony
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; *821 Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
V. Defendant was denied his due process equal protection rights because no mental health expert examined him prior to trial
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Nave v. Delo, 22 F.3d 802, 808 (8th Cir.1994) citing Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir.1993) ("The failure to satisfy state procedural requirements serves as an adequate and independent state procedural bar to review.").
Petitioner attempts to overcome the procedural bar by establishing "cause" in that his trial counsel was ineffective for "deciding not to at least investigate mental health issues and thus precluding their presentation at trial in either the guilt or punishment phases." Petitioner's Traverse, pg. 31.
Establishing cause for a procedural default "ordinarily turn[s] 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." Parkus v. Delo, 33 F.3d 933, 938 (8th Cir.1994) quoting Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645-46. "A petitioner may demonstrate an objective impediment to compliance with a procedural rule by showing that the `factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable.'" Parkus v. Delo, at 938 quoting Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645.
Petitioner's "cause" is only that trial counsel decided not to investigate mental health issues. Petitioner fails to demonstrate or even allege that any external factor or interference by officials somehow prevented counsel from including this claim in his motion for a new trial or on direct appeal. Petitioner has failed to establish cause for his procedural default.
VI. Missouri's statutory aggravating circumstances instruction which includes that the murder(s) must have involved "torture or depravity of mind" violates the Eighth and Fourteenth Amendments
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Furthermore, even if this claim were not procedurally barred, it still fails to require habeas relief. Although the Missouri Supreme Court did not address the heinous nature of these murders in the context of this claim, it did review the facts surrounding the murders and the conduct of the petitioner during the commission of the murders in its statutorily mandated review of the imposition of the death penalty. State v. Schneider, 736 S.W.2d 392, 404. The Court found that:
"The defendant and his coconspirators planned to burglarize and rob the home of the victims. They went armed with deadly weapons, including a sawed-off rifle, a sawed-off shotgun and a double edged knife. After Morgan kicked in the door to the home the victims were assaulted and bound with, among other things, Christmas *822 lights, and a dog chain was placed around the neck of victim Schwendemann. Thompson was initially stabbed in the neck and left to bleed to death. Somehow he managed to stagger outside, only to be recaptured and subjected to multiple stabbings in the chest, back, neck, neck and throat, sustaining at least 15 stab wounds. Schwendemann was shot in the back, which apparently paralyzed him but left him conscious, and later shot in the head. The fatal stabbings, slashing and shootings were accompanied with the additional brutality of `stomping' and kicking Schwendemann so severely that two of his ribs were broken. The preplanned burglary was methodically carried out and a considerable quantity of `loot', consisting of the personal property of the victims, was taken and divided among the participants in the crime. Not only is there no showing of remorse on the part of this defendant, but to the contrary he demonstrated an offensive air of braggadocio when boasting to others how he brought about the deaths of the victims."
Id., at 404. The Court further found this evidence supported the jury's finding that the murders involved the torture and depravity of mind and as a result thereof were outrageously or wantonly vile, horrible, or inhuman. Id., at 404.
The findings by the state court are accorded a presumption of correctness. This Court's independent review of the trial record supports the Missouri Supreme Court's findings. Given these findings, this Court believes the jury could have found that the victims were subjected to physical and mental abuse constituting torture and that defendant's actions were inhuman. Furthermore, similar instructions have been found to be constitutional. See, Murray v. Delo, at 1382-83; Battle v. Delo, at 1562-63.
VII. Petitioner's death sentence was based on invalid prior convictions (petitioner claims his prior convictions were the result of ineffective assistance of those trial counsel)
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Nave v. Delo, 22 F.3d 802, 808 (8th Cir.1994) citing Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir.1993) ("The failure to satisfy state procedural requirements serves as an adequate and independent state procedural bar to review.").
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra, Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Petitioner concedes that he has never challenged his prior convictions through the state appellate or habeas process; or through the federal habeas process. Petitioner is not presently in custody for his prior convictions. Even if this claim were not procedurally barred, petitioner cannot collaterally attack the constitutionality of these prior convictions in this federal habeas proceeding because he is not "in custody" for these earlier convictions. 28 U.S.C. § 2254 requires a habeas prisoner to be "in custody" under the conviction or sentence under attack at the time his petition is filed. Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989). Even if the prior conviction is used to enhance any sentences imposed on subsequent criminal convictions, the habeas prisoner is still "in custody" pursuant to the presently enhanced sentence, not the prior convictions. Maleng v. Cook, 490 U.S. at 492-93, 109 S.Ct. at 1926.
VIII. The State withheld materially exculpatory evidence and introduced false and misleading evidence because it knew that David Morgan had made statements that Charles Palmer had planned the robbery and killed Thompson
This claim was not raised in a motion for new trial or on direct appeal; consequently, *823 it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Furthermore, the trial record shows that no Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) violation occurred. Petitioner contends that co-defendant Morgan identified co-defendant Palmer as the one who stabbed victim Thompson in the neck and that the State failed to disclose this information to the jury. Firstly, under Brady the State has a duty to disclose exculpatory evidence to the defendant, not to the jury. Secondly, Morgan's statement incriminating Palmer was made during his deposition, which was being taken by petitioner's trial counsel. State's Exhibit D, pgs. 53-54. Consequently, petitioner's counsel and the State simultaneously received this information through Morgan's deposition. Finally, both the State and petitioner's trial counsel listed co-defendant Morgan as a witness. Neither side called Morgan to testify; thus, Morgan's deposition testimony would have been inadmissible hearsay. There is no need of further discovery on this matter.
IX. The trial court erred in admitting petitioner's statements into evidence because they were obtained in violation of petitioner's Fifth Amendment rights
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Furthermore, this issue was raised by petitioner's trial counsel in his motion to suppress. The trial court conducted an evidentiary hearing on the matter and denied the motion. The evidence at the motion to suppress hearing included testimony from the three police officers involved in petitioner's arrest. The evidence at the suppression hearing was as follows:
A burglary had occurred on or about January 7, 1985. Witnesses described a suspect vehicle as either an Oldsmobile or Chevrolet, 1975 or 1976 make, light blue with the left rear window broken out and replaced by plastic which was secured by duct tape. On the morning of January 13, 1985 Officer Nick Wild was patrolling Interstate 55 when he spotted a vehicle on the shoulder which matched the description of the car used in *824 the January 7th robbery. State's Exhibit A Trial Transcript, pgs. 140-41. Three men were standing outside of the car to the rear of it; one of the men (later identified as Schneider) was changing a flat tire on the rear passenger side. Trial Transcript, pg. 141. As Officer Wild pulled up behind the vehicle, he radioed Officer George Basler. Trial Transcript, pg. 142. Officer Wild stopped his car, got out, and approached the three men. He stated to the men that they ought to be careful and that he would stay with them until Schneider finished changing the tire. Trial Transcript, pg. 142. Meanwhile, Officer Wild believed that one of the men, later identified as David Morgan, matched a composite drawing of one of the men involved in the January 7th robbery. He saw that the passenger front door was open. Officer Wild walked around the side of the car and looked inside the open passenger door. Trial Transcript, pgs. 144, 156-161. He testified that since the car matched the description of the car involved in the January 7th robbery, and Morgan matched the composite drawing of one of the men involved in that robbery, he was concerned about the men having ready access to a weapon in the car. Trial Transcript, pg. 144, 158-159. As he walked up to the opened car door, he was followed by Morgan. Trial Transcript, pgs. 144-45, 157-58. When Officer Wild looked inside of the car, he spotted a brown box on the front seat partially hidden underneath the armrest. Trial Transcript, pgs. 144, 158. As he looked in, Morgan reached in from behind and shoved the box towards the driver's side of the seat. Trial Transcript, pgs. 144-45, 157-160. Officer Wild grabbed Morgan by the belt and told him to return to the rear of the car and stand. Trial Transcript, pgs. 145, 160-61. They returned to the back of the car and engaged in some idle chitchat about the tire. Trial Transcript, pgs. 160-61. Officer Wild testified that he then took Morgan back to his patrol car where he informed Morgan that he suspected Morgan of being involved in the January 7th robbery. Trial Transcript, pgs. 143, 161. Officer Wild further testified that just about then Officer Basler pulled up. Officer Wild and Officer Basler conferred about Morgan matching the composite drawing and Officer Wild told Officer Basler about the brown box and Morgan's actions with regard to the box. Trial Transcript, pgs. 145-46, 163. The two officers walked back up to the suspect vehicle, Officer Basler sat down on the corner of the front seat, and took the lid off of the brown box. Trial Transcript, pgs. 163-65, 167. Upon the removal of the lid, Schneider stated that the jewelry contained in the box belonged to his family, that he lived in a bad neighborhood, and that was why he carried it in the car. Trial Transcript, pgs. 161, 165. Shortly thereafter, a third patrol car arrived with Officer Joe McMahon and all three men were placed under arrest. Trial Transcript, pg. 149.
Officer Basler testified that upon arriving on the scene, he first talked with Officer Wild, then approached the suspect car and looked inside. Trial Transcript, pgs. 178, 182. He spotted the brown box on the front seat. Trial Transcript, pg. 178. He sat down on the corner of the seat, opened up the box, and found jewelry inside. Trial Transcript, pgs. 179, 183. While this was going on, Schneider was still at the rear of the car, changing the flat tire. Trial Transcript, pg. 183. Officer Basler replaced the lid and started back with the box towards Officer Wild's car. Trial Transcript, pg. 184. Schneider came around to the side of the car, saw Officer Basler with the brown box, and stated that the box contained his family's jewelry, that he lived in a bad neighborhood, and that was why the box was in the car. Trial Transcript, pgs. 179, 184.
Officer Joe McMahon was the third officer to arrive at the scene. Trial Transcript, pg. 170. He testified that upon arriving, the three suspects (Schneider, Morgan, and a man later identified as Roland Johnson) were sitting in the suspect vehicle. He talked with Officer Wild and they compared the composite drawing with Morgan's driver's license picture. Trial Transcript, pg. 170. Officers Wild and McMahon then went up to the suspect car and asked Morgan to get out of the car. All three men walked back to Officer Wild's car. Trial Transcript, pg. 171. Morgan was informed of the officers' suspicions about his involvement in the January *825 7th robbery which he first denied knowing anything about. Trial Transcript, pg. 171. Morgan then admitted to his involvement in the January 7th robbery, as well as to the murders of Thompson and Schwendemann. Trial Transcript, pgs. 174-176. The other two men were removed from the car, and all three were placed under arrest. Trial Transcript, pgs. 173-76.
Schneider alleges that he was "in custody" when Officer Basler removed the lid from the box and that his statements were made before he was Mirandized. This Court has conducted an independent review of the hearing evidence and concludes that petitioner's statements regarding the contents of the brown box were uttered prior to being taken into custody and placed under arrest. Such statements were voluntary in nature, and made prior to the need of Miranda rights being read to the petitioner.
Police officers are required to issue Miranda warnings only prior to custodial interrogation. United States v. Wright, 971 F.2d 176, 180 (8th Cir.1992); United States v. Caldwell, 954 F.2d 496 (8th Cir.1992); United States v. Lyon, 949 F.2d 240, 243 (8th Cir.1991). Any voluntary statements made by a suspect, not in response to express questioning or interrogation tactics, is not barred by the Fifth Amendment and is admissible with or without Miranda warnings. United States v. Lawrence, 952 F.2d 1034, 1036 (8th Cir.1992); United States v. Griffin, 922 F.2d 1343 (8th Cir.1990).
Petitioner contends that his statements concerning the contents of the brown (jewelry) box were made while he was "in custody" and without the benefit of Miranda warnings. He offers no factual support for this general allegation. The trial record, however, establishes that at the time of his statements, petitioner was not "in custody" and his statements were not in response to any questioning by any one of the police officers at the scene.
A custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom in any significant way. Miranda v. State, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694; (1966) see, Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.1993). However, Miranda warnings are not required merely because the individual questioned by law enforcement officers is a suspect or is the focus of a criminal investigation. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713-14, 50 L.Ed.2d 714 (1977); Jenner v. Smith, at 334-35. In United States v. Griffin, the Eighth Circuit Court of Appeals set forth the standard by which this Court should examine the issue of custodial interrogation. This Court is to examine the totality of the circumstances in determining whether the petitioner was "in custody" when the statements in question were made. Id., at 1347. The Court further enumerated six common indicia of custody to assist courts in this examination. This list of common indicia of custody includes: 1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; 2) whether the suspect possessed unrestrained freedom of movement during the questioning; 3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; 4) whether strong arm tactics or deceptive stratagems were employed during questioning; 5) whether the atmosphere of the questioning was police dominated; or, 6) whether the suspect was placed under arrest at the termination of the questioning. Id., at 1349.
Petitioner offers nothing to dispute the testimony adduced at his trial that up until he made his statements, he was busy changing a flat tire on the car and that the only conversation he had had with Officer Wild had been general conversation regarding the tire. At the time that he made his statements concerning the contents of the jewelry box, neither Officer Wild nor Officer Basler had directed any questions to him. He offers nothing to dispute the testimony that even after he made his statements, no questions were directed to him regarding the box. The trial record indicates that at the time of petitioner's statements, the only man considered to be a suspect (in the January 7th robbery) was David Morgan. The officers *826 testified that their conversations regarding their suspicions about David Morgan were not made in close proximity to petitioner, nor were their suspicions conveyed to the petitioner. There is no evidence that the police officers used "strong-arm tactics" in order to elicit petitioner's statements. Finally, petitioner was not placed under arrest until sometime after the statements were made and Morgan made statements to the police officers implicating petitioner in certain criminal activities. Given the fact that petitioner was not under arrest, was not under any type of physical restraint, was not given any verbal directive by Officers Wild or Basler that he could not leave the scene, and most importantly, was not being questioned by either one of the officers, the Court finds that petitioner was in a non-custodial situation when he spontaneously made his statements concerning the contents of the jewelry box. Jenner v. Smith, at 335; United States v. Griffin, at 1349-52. Consequently, petitioner's Fifth Amendment rights were not violated by the absence of Miranda warnings, and the state trial court properly denied his motion to suppress.
X. Prosecutorial misconduct by the state prosecutor in his closing argument during both phases of trial
Petitioner claims that the state prosecutor improperly argued during his closing arguments 1) that the petitioner personally stabbed victim Thompson; 2) that he had personal knowledge of facts outside the record; 3) by vouching for the veracity of the state's witnesses; 4) that there was a prevalence of violence in society; and 5) that the death penalty was the appropriate sentence.
Grounds 2-5 were not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise them in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir. 1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra, Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
As for Ground 1 (prosecutor improperly argued that petitioner was personally responsible for the stabbing of victim Thompson), this claim was raised in his direct appeal to the Missouri Supreme Court. The Missouri Supreme Court first noted that trial counsel had failed to raise an objection at the time of the argument, thereby failing to preserve any contention of trial error pertaining to that portion of the prosecutor's argument regarding petitioner's involvement in the stabbing of Thompson. State v. Schneider, 736 S.W.2d at 398. The Missouri Supreme Court further concluded that the prosecutor's argument was not so improper as to warrant a mistrial because there was circumstantial evidence supporting an inference that petitioner had personally stabbed Thompson. Id., at 398. The Court noted that despite the petitioner's reliance (in his motion for a new trial and in his direct appeal) on the statements made by David Morgan in Morgan's deposition, neither the State nor petitioner had introduced the deposition into evidence. Id., at 398, n. 6.
This Court has reviewed the trial record and concurs that trial counsel failed to object to the prosecutor's comments regarding petitioner's involvement in the stabbing of Thompson. State's Exhibit A Trial Transcript, pgs. 1814 (guilt phase); 1950-51, 1957 (sentencing phase). Furthermore, the Court finds that the prosecutor's comments were harmless with respect to both the conviction *827 and the death sentence.[10] The evidence adduced at trial clearly implicated the petitioner as the one who stabbed Thompson. Absent any evidence to the contrary, such as Morgan's deposition statements, it was reasonable for the jury to conclude, as did the prosecutor, that petitioner was responsible for the fatal stabbing of Thompson.
XI. Ineffective assistance of direct appeal counsel and Rule 29.15 appeal counsel
XII. Ineffective assistance of Rule 29.15 motion counsel
In his Eleventh and Twelfth claims, petitioner asserts that all of his post-conviction counsel rendered ineffective assistance of counsel. These claims must fail for federal habeas relief for two reasons. Firstly, petitioner did not present his claims of ineffective assistance of direct appeal counsel and Rule 29.15 motion counsel to the state courts; thus, these claims are procedurally barred. Petitioner did raise them in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra.
Secondly, Schneider can avoid the procedural bar if he can demonstrate "cause and actual prejudice". The only ground Schneider raises as cause for his procedural default is that his 29.15 motion counsel was ineffective for failing to raise his claim of ineffective assistance of direct appeal counsel before the motion court, and that his 29.15 appeal counsel was ineffective for failing to raise his claim of ineffective assistance of his 29.15 motion counsel before the Missouri Supreme Court. Since petitioner does not have a constitutional right to post-conviction counsel, the "ineffectiveness" of any of his post-conviction counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965.
XIII. The jury was improperly instructed on the weighing of aggravating circumstances because one aggravating circumstance was not properly defined and because the instruction required a unanimous finding by the jury of mitigating circumstances. (Instructions 30, 32, 36, and 38)
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional *828 right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Petitioner further argues that trial counsel's failure to object to improper instructions constitutes "cause" sufficient to overcome the procedural default. This argument too fails. See, Nave v. Delo, at 815.
Furthermore, as previously determined, both the Missouri state courts and the Eighth Circuit Court of Appeals have consistently found Missouri's aggravating and mitigating circumstances instructions to be constitutional. Murray v. Delo, supra; Battle v. Delo, supra. Furthermore, the fact that each of petitioner's prior convictions may be considered by the jury, pursuant to Instructions 30 and 36, as separate nonstatutory aggravating circumstances doesn't skew the weighing process.[11] The jury found the existence of three statutory aggravating circumstances, in addition to six nonstatutory aggravating factors (including the prior convictions); thus, whether or not the prior convictions were considered as a single nonstatutory factor or as separate factors is immaterial to the weighing process. Finally, petitioner does not contend that the instruction regarding his prior convictions was vague or that the prior convictions in some regard were inaccurate. Consequently, there was no consideration of an invalid constitutionally vague aggravating circumstance instruction. See, Williams v. Clarke, 40 F.3d 1529, 1538-39 (8th Cir.1994).
XIV. The trial court erred in believing that it had to follow the recommendation by the jury regarding the imposition of a death sentence
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Nave v. Delo, 22 F.3d 802, 808 (8th Cir.1994) citing Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir.1993) ("The failure to satisfy state procedural requirements serves as an adequate and independent state procedural bar to review.").
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Furthermore, the trial record indicates that the trial judge simply stated only that "it is the Court's intention to assess punishment in accordance with the verdict of the jury, that is, an assessment of death on Count I and an assessment of death on Count II." State's Exhibit A Trial Transcript, pgs. 1994-95. He told counsel to consider the Court's intention when preparing their post-trial motions. Trial Transcript, pg. 1995. Counsel not only submitted written post-trial motions, but were allowed to argue their motions at a hearing before the Court prior to sentencing. Trial Transcript, pgs. 2002-2068. When it came time for sentencing, the trial judge reiterated the fact that he had read and listened to petitioner's counsel's arguments in support of the motion for a new trial; and he gave trial counsel a second chance to address the Court on behalf of the petitioner. Trial Transcript, pgs. 2068-69, 2078-2087. When sentencing the petitioner, the trial judge expressed his own personal opinion regarding the death penalty *829 in general; however, he clearly stated that the law allowed for the imposition of the death penalty and that he would follow the law. Trial Transcript, pg. 2090. Finally, he unequivocally stated that after reviewing the presentence investigation report, the evidence adduced at trial, and in consideration of the jury's verdict, he had arrived at his decision to impose the death sentence on Counts I and II. Trial Transcript, pg. 2093. Since the record supports the trial judge's decision as one reached after consideration of counsel's post-trial arguments, evidence adduced at trial, the presentence investigation report, and the jury's findings, this Court sees no need to conduct an evidentiary hearing to explore the reasoning behind the trial judge's decision to sentence the petitioner to death on Counts I and II.
XV. Petitioner's Fourth Amendment rights were violated by the warrantless search of his car and the warrant search of his residence
The State and the petitioner appear to believe that this claim, in its entirety, was presented to the state courts where it was exhausted for purposes of federal habeas review. However, this Court's review of the state court record clearly indicates that petitioner presented his claim as to the warrantless search of his car (at the time of his arrest) to the trial court in his motion for a new trial. He never presented this claim to the Missouri Supreme Court in his direct appeal or in his Rule 91 state habeas petition; consequently, it is procedurally defaulted. Nave v. Delo, 22 F.3d 802, 808 (8th Cir.1994) citing Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir.1993) ("The failure to satisfy state procedural requirements serves as an adequate and independent state procedural bar to review."). Petitioner offers no grounds as "cause" for failing to include this claim in his direct appeal or Rule 91 state habeas petition.
His claim as to the warrant search of his residence was presented to the Missouri Supreme Court in his direct appeal and Rule 91 state habeas petition; thus, it is exhausted for purposes of federal habeas review.
Under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), a state prisoner is precluded from asserting a Fourth Amendment claim as a basis for federal habeas relief unless the petitioner can demonstrate that the state courts have not afforded the petitioner a full and fair opportunity to litigate the claim. Stone v. Powell, 428 U.S. at 494, 96 S.Ct. at 3052; Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir.1994); Cortis v. Kenney, 995 F.2d 838, 841 (8th Cir.1993). The Eighth Circuit Court of Appeals has set forth a two-part test to determine whether a habeas petitioner has had an opportunity for a full and fair litigation of a Fourth Amendment claim in state courts. Willett v. Lockhart, at 1273. A Fourth Amendment claim is barred from federal habeas review under Stone v. Powell unless: 1) the state provided no procedure by which the petitioner could raise his/her Fourth Amendment claim, or 2) the petitioner was foreclosed from using that procedure because of an unconscionable breakdown in the system. Willett v. Lockhart, at 1273.
In the present case, Missouri provided the petitioner with several avenues by which to present his Fourth Amendment claim and he took full advantage of these opportunities to present his claim. His trial counsel filed a motion for new trial which argued that the trial court had erred in overruling petitioner's motion to suppress the introduction of items seized in the warrant search of petitioner's residence at 2246 Jules. State's Exhibit C Amended Legal File, pgs. 2-4 of the Motion for New Trial (pgs. 435-37 of the Exhibit). When the motion for a new trial was denied; petitioner raised this claim regarding the warrant search of his residence in his direct appeal. The Missouri Supreme Court thoroughly reviewed the claim and concluded that the items seized which were not listed on the search warrant were seized properly under the "plain view doctrine". State v. Schneider, 736 S.W.2d at 399.
Petitioner claims that he did not receive a full and fair litigation of this claim before the trial court due to the ineffectiveness of his trial counsel. Petitioner's Traverse, pg. 37. This argument lacks merit for two reasons. Firstly, the standard of review *830 by this Court is limited solely as to whether Missouri provided an opportunity for litigation of the petitioner's claim. "The federal courts on habeas review of such claims are not to consider whether full and fair litigation of the claims in fact occurred in the state courts, but only whether the state provided an opportunity for such litigation." Willett v. Lockhart, at 1273. The record is clear that petitioner was provided more than one opportunity to litigate this claim in the state courts. Secondly, trial counsel adequately presented this claim in the motion to suppress and the motion for new trial. The fact that both motions were denied does not automatically cast aspersions upon his performance as petitioner's counsel. Furthermore, this claim was then presented by different counsel in post-conviction proceedings, where the claim was again denied.
Pursuant to the afore-mentioned reasons, Petitioner's Fourth Amendment claim regarding the warrant search of his residence is barred from federal habeas review under Stone v. Powell, supra,
XVI. Prosecutorial misconduct prosecutor's remarks regarding the petitioner's post-arrest silence
This claim consists of two parts: the prosecutor's alleged statements, during argument at the penalty phase, regarding the petitioner's post-arrest silence and the prosecutor's extraction of evidence of petitioner's post-arrest silence through the testimony of state's witness Roland Johnson.
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Petitioner further alleges that his trial counsel's failure to object to Roland Johnson's testimony constitutes "cause" sufficient to overcome the procedural default. This argument too lacks merit.
Establishing cause for a procedural default "ordinarily turn[s] 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." Parkus v. Delo, 33 F.3d 933, 938 (8th Cir.1994) quoting Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645-46. "A petitioner may demonstrate an objective impediment to compliance with a procedural rule by showing that the `factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable.'" Parkus v. Delo, at 938 quoting Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645-46. Petitioner can establish "cause" by his trial counsel's allegedly ineffective assistance only if such deficient assistance significantly created an impediment to compliance. See, Murray v. Carrier, 477 U.S. at 488-97, 106 S.Ct. at 2645-50. Trial counsel's decision not to object to Johnson's testimony is not "some objective factor external to the defense" which impacted upon trial counsel, appellate counsel, or even the petitioner's efforts to include this claim in petitioner's post-conviction pleadings.
Furthermore, the trial record demonstrates that trial counsel was not ineffective for failing to object to the prosecutor's statements in argument during the penalty phase or for failing to object to Johnson's testimony. The petitioner fails in both his *831 amended petition and in his traverse to identify the alleged improper statements made by the prosecutor during the penalty phase of petitioner's trial. The Court has carefully reviewed both the opening and closing arguments made by the prosecutor at the penalty phase and cannot find any statements made by the prosecutor regarding the petitioner's post-arrest silence. State's Exhibit A Trial Transcript, pgs. 1909-10, 1947-58. This part of the claim has no factual support in the trial record.
As for Mr. Johnson's testimony, the Court finds that his reference to the petitioner's post-arrest silence was extremely brief and insignificant. The offending statement was made during redirect of the witness by the prosecutor. Earlier in cross-examination, trial counsel had attacked the witness' credibility by addressing the fact that the witness had first refused to make a statement to the police (after being arrested) but then later did make a statement whereupon he was released from jail. State's Exhibit A Trial Transcript, pgs. 1351-52. During redirect examination, the prosecutor asked Johnson the reason he had first refused to make a statement to the police. Trial Transcript, pg. 1358. Trial counsel raised an objection regarding potential hearsay in the witness' answer. There was considerable sidebar discussion. The trial court ruled that any testimony regarding what police officers said would be inadmissible as hearsay, but he allowed the witness to testify as to the witness' reasons for his initial refusal to make a statement to the police. Trial Transcript, pgs. 1358-61. Johnson testified that "[t]he reason I didn't make a statement the first time I felt as though Schneider and Morgan would go ahead and tell their side of the story." Trial Transcript, pg. 1361.
This statement was elicited during the prosecutor's attempt to rehabilitate his witness. Petitioner has made no showing that the prosecutor knew that his witness would respond to the questioning by an indirect reference to the petitioner's post-arrest silence. Furthermore, the trial record shows that trial counsel did object to the potential testimony, albeit did not object to this particular response once it was made. Finally, petitioner has failed to demonstrate that this isolated indirect comment had a substantial and injurious effect on the trial as a whole, or greatly influenced the jury's verdict.
XVII. The jury selection procedures utilized by the trial court created a jury violative of petitioner's Sixth and Fourteenth Amendment rights
Petitioner's claim regarding the jury selection presents two grounds for federal habeas relief: 1) the jury selection procedures employed by the Twenty-Third Judicial Circuit systematically under-represents minorities, women, and young people in the available pools of potential jurors, thereby, violating the petitioner's right to a jury representing a fair cross-section of the community; and 2) Missouri statute 546.230 requires sequestration of the jury in a capital murder case, thereby disproportionately excluding women with small children.
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra, Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
*832 Petitioner further attempts to establish "cause" for his procedural default by alleging the ineffective assistance of his trial counsel for failing to object to the trial court's dismissal of various jurors. However, as already noted by the Court, trial counsel's failure to object at trial to the trial court's rulings (regarding juror dismissals, evidence, etc.) does not establish "cause" for the omission of this claim in the petitioner's post-conviction pleadings.
Finally, having found this claim to be procedurally barred, petitioner has no right to an evidentiary hearing before this Court. See, Boyd v. Delo, 999 F.2d 1286, 1289, n. 6 (8th Cir.1993).
XVIII. Petitioner was denied his Sixth Amendment rights to present a defense because co-defendant David Morgan's plea agreement was excluded from jury consideration, as well as evidence showing that the police conducted a "faulty" investigation
The portion of the claim regarding Morgan's plea agreement as violating the petitioner's Sixth Amendment rights to present a defense was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Petitioner further attempts to establish "cause" for his procedural default by alleging the ineffective assistance of his trial counsel for failing to object to the trial court's rulings excluding the evidence of David Morgan's plea agreement and for not attempting to introduce this evidence. As already noted by the Court, trial counsel's failure to introduce evidence or object at trial to the trial court's rulings (regarding juror dismissals, evidence, etc.) does not constitute ineffective assistance of counsel which establishes "cause" for the omission of this claim in the petitioner's post-conviction pleadings.
As for the remaining portion of this claim (the "faulty" investigation by the police), petitioner raised this claim in both his direct appeal and his Rule 91 state habeas petition, thus, this claim is exhausted for federal habeas purposes.
Petitioner contends that the trial court erred when it prohibited petitioner's counsel from cross-examining the testifying police investigative personnel as to their failure to gather certain types of evidence and to conduct certain type of tests. He argues that the police failed to conduct a thorough investigation due to co-defendant Morgan's "fingering" of the petitioner; thus, he was precluded from demonstrating bad faith and bias on the part of the investigating police officials.
The Missouri Supreme Court found that under Missouri law the State is not bound to gather all physical evidence conceivably relevant to a case, and is not required to account for its failure to gather or present such evidence. It further found that a defendant is not entitled to draw an adverse inference from the State's alleged failure to gather certain physical evidence. State v. Schneider, 736 S.W.2d at 401-02. The Missouri Supreme Court cited a long list of state court decisions supporting its holding. Id., at 402. Thus, it is clear that the Missouri Supreme Court's denial of this issue on appeal rested on adequate and independent *833 state grounds. Such a decision normally precludes a federal court from reviewing the issue again in a federal habeas proceeding. Coleman v. Thompson, 501 U.S. at 729-32, 111 S.Ct. at 2553-55. However, there is an exception to the adequate and independent state ground doctrine.
The permissible scope of cross-examination is a question of state law, and ordinarily the courts allow for some latitude with respect to witness credibility and bias. Pickens v. Lockhart, 4 F.3d 1446, 1454 (8th Cir.1993). An alleged evidentiary error "would not warrant federal habeas relief unless it can be shown that the ruling violated a specific constitutional provision or resulted in a trial so fundamentally unfair as to violate due process." Pickens v. Lockhart, at 1454 citing Cooley v. Lockhart, 839 F.2d 431, 432 (8th Cir.1988); see also, Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990). "The habeas petitioner must establish an error which demonstrates a violation of due process by a burden much greater than that required on direct appeal and even greater than the showing of plain error." Mendoza v. Leapley, 5 F.3d 341, 342 (8th Cir.1993).
Petitioner has failed to meet his burden. He accuses the investigating police officials of "sloppy work" but fails to identify for the Court the particular incidents of "sloppy work". He states that:
"because of Morgan, the police did not do a standard investigation. Things were not done that normally would have been done. As a result, evidence was not obtained that would otherwise be obtainable. Clearly, the police felt they could coast by relying on Morgan's statements without considering his self-motivation."
Petitioner's First Amended Petition for Writ of Habeas Corpus, pg. 117. Nowhere does the petitioner identify what constitutes a "standard investigation" nor does he identify the evidence that should have been but was not obtained. In his direct appeal, he refers to the investigating officials' failure to gather dog hair, human hair, fiber or soil samples or to perform atomic absorption tests to determine whether petitioner had recently fired a handgun; however, he fails [in his amended habeas petition] to demonstrate how these alleged failures denied the petitioner a fair trial in light of all the incriminating evidence adduced at trial. Furthermore, his link of "sloppy police work" to Morgan's assistance to the police is based entirely upon supposition. State's Exhibit A Trial Transcript, pgs. 904-08, 940-43, 948-50. Petitioner fails to demonstrate that he was convicted in an unfair trial because he was not allowed to present a defense based upon an adverse inference from the State's alleged failure to gather certain "evidence". Petitioner's conviction was properly based upon the State's physical evidence and witnesses' testimony. Trial counsel was given ample opportunities to cross-examine witnesses as to the credibility of the physical evidence gathered. His Sixth Amendment rights were not violated by the trial court's rulings; nor did the trial court's rulings fatally infect the trial and deny the petitioner fundamental fairness.
XIX. The Missouri Supreme Court failed to conduct a proper proportionality review
Petitioner claims that he is in custody in violation of his constitutional rights and that the death penalty has been imposed in an arbitrary and capricious manner in light of the punishment received by his co-defendants. This claim was presented to the state courts through petitioner's post-conviction proceedings and was denied by the Missouri Supreme Court. It specifically found, based upon the trial record, that "the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor." State v. Schneider, 736 S.W.2d at 404. It further found that "[t]he record supports the jury's findings in all particulars as to the aggravating circumstances they certified and our independent review reveals the evidence against this defendant was indeed overwhelming". Id., at 404. Finally, it concluded that "[t]he sentences of death were neither excessive nor disproportionate to the penalties imposed in similar cases considering the crimes, the strength of the evidence, and the circumstances surrounding the defendant." Id., at 404.
In order for federal jurisdiction to exist, the petitioner must allege that he is in *834 custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Petitioner only alleges that he is in custody under a penalty of death because the Missouri Supreme Court failed to conduct a proper proportionality review. Whether the Missouri Supreme Court conducted a proper proportionality review is a matter of state law which is insufficient to establish a constitutional violation. See, Scott v. Jones, 915 F.2d 1188 (8th Cir.1990).
Furthermore, there is no constitutional right to a proportionality review. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Foster v. Delo, at 882; Murray v. Delo, at 1376-77. The only requirement is that the states utilize methods to insure that capital punishment is not imposed in an arbitrary and capricious manner. Pulley v. Harris, supra, In accordance with Missouri law, § 565.035 R.S.Mo., the Missouri Supreme Court is required to review all capital punishment cases.
"The question of proportionality involves a comparison with other cases, and the issue to be sure, is not soluble in precisely quantifiable terms. It involves the exercise of discretion and judgment. That is true of many crucial issues in law deciding what a reasonably prudent person would do in certain circumstances, for example. We see no unfairness or deprivation of due process in the Missouri Supreme Court's procedures for exercising a proportionality review."
Murray v. Delo, at 1377. In the instant case, the Missouri Supreme Court conducted a proportionality review by reviewing other similar cases and specifically found that the sentences of death were not excessive or disproportionate given the crimes, the strength of the evidence, and the circumstances surrounding the petitioner. State v. Schneider, 736 S.W.2d at 404.
As for petitioner's claim that the review was not proper because it did not consider the sentences given to petitioner's co-defendants, such an argument lacks merit. In Foster v. Delo, supra, petitioner Foster presented the same argument to the Eighth Circuit Court of Appeals. Id., at 882. The appellate court rejected this argument noting that there is no Eighth Amendment right to a proportionality review in the first place, and that Missouri law does not require a comparison of sentences of co-defendants. Id., at 882.
XX. The trial court erred in admitting testimony from two of the State's expert witnesses because said testimony was unreliable
This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Even if petitioner's claim were not procedurally defaulted, this Court finds that petitioner is not entitled to federal habeas relief. The admission of evidence in a state trial is a matter of state law. Clark v. Groose, at 963 citing Glaze v. Redman, 986 F.2d 1192, 1195 (8th Cir.1993). Matters of state law ordinarily are not a proper basis for federal habeas relief. However, an alleged evidentiary error "would not warrant federal habeas relief unless it can be shown that the ruling violated a specific constitutional provision or resulted in a trial so fundamentally *835 unfair as to violate due process." Pickens v. Lockhart, at 1454 citing Cooley v. Lockhart, 839 F.2d 431, 432 (8th Cir.1988); see also, Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990). "The habeas petitioner must establish an error which demonstrates a violation of due process by a burden much greater than that required on direct appeal and even greater than the showing of plain error." Mendoza v. Leapley, 5 F.3d 341, 342 (8th Cir.1993).
Petitioner's contention is that the testimony of the State's expert witnesses Roger Corcoran and Jan Vessell was "unreliable". Whether their testimony was reliable or not is an issue that goes to the weight of their testimony, not to its admission. Witnesses' credibility is strictly a jury matter, and not a matter for federal habeas review by this Court. Schlup v. Delo, 11 F.3d 738, 741 (8th Cir.1993), rev'd on other grounds Schlup v. Delo, ___ U.S. ___, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Furthermore, a review of their trial testimony fails to demonstrate that their testimony was so grossly prejudicial as to fatally infect the trial and deny petitioner due process.
Petitioner argues that Roger Corcoran was allowed to testify to the presence of blood on a knife seized from petitioner despite the absence of a reaction, and as to the reason for the lack of blood on victim Thompson's socks despite a proper scientific foundation. First Amended Petition for Writ of Habeas Corpus, pg. 127. Petitioner's allegations are not supported by the trial record. Mr. Corcoran thoroughly explained the procedures for testing for the presence of blood. State's Exhibit A Trial Transcript, pgs. 1644-1647. He testified that the "presumptive test" would turn the suspected stain a "red color or a pinkish-red color if there is a possible presence of blood." Trial Transcript, pg. 1645. He further testified that after testing the petitioner's knife, the "presumptive test" turned the suspected stain "a very pink color". Trial Transcript, pgs. 1645-46. His opinion was that the reaction was neither "weak" nor "strong", but rather "in-between" and that he believed, based upon his findings, that the stain was blood. Trial Transcript, pg. 1646, 1663-64. Petitioner's trial counsel was allowed to pursue a very thorough cross-examination of Mr. Corcoran which stressed the weaknesses in his testimony. Trial Transcript, pgs. 1654-55. Mr. Corcoran's opinion was properly presented and challenged; the weight of it was for the jury to consider. There was nothing in Mr. Corcoran's testimony which was fundamentally unfair to the petitioner.[12]
As for Ms. Vessell's testimony, petitioner argues that she was improperly allowed to testify that a latent print found on a bottle of Beaujolais wine seized from one of petitioner's co-defendant's home was "probably" that of victim Thompson even though there were not enough prints to make a conclusive identification. First Amended Petition for Writ of Habeas Corpus, pg. 127. A review of Ms. Vessell's testimony fails to demonstrate that it was so grossly prejudicial as to fatally infect the trial and render it fundamentally unfair. Ms. Vessell testified that the latent print she lifted from the wine bottle in question "definitely did not match either Schneider, Palmer, or Morgan." Trial Transcript, pgs. 1779-80. She further testified that the latent print was probably that of Thompson.
Q. Did you have the occasion to compare that against the known prints of Ronald Thompson and Richard Schwendemann?
A. Yes, I did.
Q. And as a result of that comparison what conclusions, if any, could you make?
A. I made a probable comparison that it was to Ronald Thompson. There wasn't *836 enough points visible to make a conclusive identification.
Q. When you say a probable match what do you base that on?
A. That the general configuration of the fingerprint could not have belonged to any of the suspects. However, it was extremely similar and there were several point matching with one of the victims.
Q. Okay. And which victim was that?
A. Ronald Thompson.
Trial Transcript, pg. 1780. Firstly, Ms. Vessell did not testify that there were not enough "prints" to make a conclusive match; she testified that there were not enough "points" on this particular latent print to make a conclusive match. Secondly, the fact that she could not make a conclusive match but rather instead it was a "more likely than not" match does not render her testimony inadmissible. Whatever weaknesses there were in her opinion goes to the weight of her testimony, an issue for the jury to consider. There is nothing in her testimony which was so prejudicial that it rendered petitioner's trial fundamentally unfair and denied him due process.
XXI. Trial court erred in precluding petitioner's trial counsel from cross-examining co-defendant David Morgan, and in limiting his cross-examination of Roland Johnson, Pat Shaffer, and Pat Woodside
Petitioner's claims regarding David Morgan, Roland Johnson, and Pat Shaffer were not raised in a motion for new trial or on direct appeal; consequently, they are procedurally defaulted. Petitioner did raise them in his Rule 91 petition, but the Missouri Supreme Court's denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590; Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra.
Petitioner attempts to avoid the procedural bar by alleging that "cause" for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider's argument that the ineffectiveness of his direct appeal counsel constitutes "cause" sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced.
Petitioner further attempts to establish "cause" for his procedural default by alleging the ineffective assistance of his trial counsel for "not properly presenting this issue to the trial court". Petitioner's Traverse, pg. 41. Petitioner fails to specify what steps trial counsel did or did not take so as to "not properly present this issue to the trial court." First Amended Petition for Writ of Habeas Corpus, pgs. 128-29; Petitioner's Traverse, pg. 41. Furthermore, as already noted by the Court, trial counsel's failure to object at trial to the trial court's evidentiary rulings does not establish "cause" for the omission of this claim in the petitioner's post-conviction pleadings.
Even if petitioner's claims regarding David Morgan, Roland Johnson, and Pat Shaffer were not procedurally defaulted, this Court finds that petitioner is not entitled to federal habeas relief. The permissible scope of cross-examination is a matter of state law, and normally counsel is accorded a fair amount of latitude with respect to witness credibility and bias. Pickens v. Lockhart, 4 F.3d 1446, 1454 (8th Cir.1993). Matters of state law ordinarily are not a proper basis for federal habeas relief. However an alleged evidentiary error "would not warrant federal habeas relief unless it can be shown that the ruling violated a specific constitutional provision or resulted in a trial so fundamentally unfair as to violate due process." Pickens v. Lockhart, at 1454 citing Cooley v. Lockhart, 839 F.2d 431, 432 (8th Cir.1988); see also, Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990). "The habeas petitioner must establish an error which demonstrates a violation of due process by a burden much *837 greater than that required on direct appeal and even greater than the showing of plain error." Mendoza v. Leapley, 5 F.3d 341, 342 (8th Cir.1993). Petitioner fails to meet his burden.
Firstly, David Morgan did not testify, thus, there is no habeas issue regarding the trial court's preclusion of trial counsel's cross-examination of Morgan. Secondly, the trial record shows that petitioner's counsel was allowed to question Roland Johnson as to any threats or promises made by the police. State's Exhibit A Trial Transcript, pgs. 1346-1348. The trial judge sustained an objection to trial counsel's questioning on the subject of threats or promises because the questioning had become repetitive and argumentative. Trial Transcript, pgs. 1348-50. Trial counsel was allowed to proceed with his inquiry as to threats or promises once he began to properly frame his questions. Trial Transcript, pgs. 1350-52. Consequently, trial counsel was allowed to thoroughly examine, which he did, Johnson regarding threats or promises. Finally, the Court has reviewed the entire trial testimony of Patrick Shaffer and the record is completely void of any attempts by petitioner's counsel to question Shaffer regarding alleged threats or promises made by the police. Trial Transcript, pgs. 1449-1484. Since there were no questions asked regarding threats or promises, and thus, no objections sustained, there is no issue regarding the trial court's error in limiting the cross-examination of Patrick Shaffer.
Petitioner did present this claim as to Pat Woodside to the Missouri Supreme Court. State v. Schneider, 736 S.W.2d at 401. Petitioner asserts that the trial court erred in limiting counsel's cross-examination as to any threats or promises made to Ms. Woodside by the police prior to her making a statement, or as to any "details" supplied by the police which were later incorporated in Ms. Woodside's statement. The Missouri Supreme Court rejected this claim for two reasons. Firstly, it noted that trial counsel had failed to make an offer of proof preserving the matter for appellate review.[13]State v. Schneider, 736 S.W.2d at 401. Secondly, it found that even if the trial court had ruled in error, petitioner was not prejudiced because the gist of the testimony trial counsel was attempting to elicit (i.e. any threats, promises, etc. by the police) was obtained through other parts of her admissible testimony. Id., at 401.
This Court's independent review of Ms. Woodside's trial testimony confirms the findings of the Missouri Supreme Court. Trial Transcript, pgs. 1196-1278. Trial counsel attempted to elicit from Ms. Woodside what the police officers said to her when she was brought to the police station for questioning. An objection based on hearsay was sustained despite trial counsel's argument that he was offering the testimony not for the truth of the matter asserted. Trial Transcript, pgs. 1236-43. The Court agrees with the Missouri Supreme Court's findings that petitioner was not prejudiced by the limitation on cross-examination because under proper questioning she repeatedly stated that she had not been threatened or promised anything by the police or by the State regarding her statement to the police. Trial Transcript, pgs. 1225, 1254-55, 1266-68. Consequently, the trial court's ruling did not render the trial fundamentally unfair as to deny petitioner due process.
XXII. The trial court erred by not granting a mistrial when the State prosecutor intentionally elicited prohibited testimony from Pat Woodside concerning a threatening phone call from the petitioner
This claim was presented to the Missouri Supreme Court and was denied. State v. Schneider, 736 S.W.2d at 399-401. Thus, it is exhausted for federal habeas review purposes.
Prior to Ms. Woodside's testimony, the trial court had granted petitioner's motion in limine to exclude references to any threats petitioner had made to Ms. Woodside. However, *838 during her direct examination Ms. Woodside testified, without objection from petitioner's trial counsel, that after agreeing to purchase the video cassette recorder stolen during the murders for $100.00 (upon her next payday), petitioner had warned her that she had better not "try to screw me out of my money" or that he and another man named Steve Goode would come looking for her (the implication is clear that Ms. Woodside knew this man and had reason to fear him). State's Exhibit A Trial Transcript, pgs. 1203-04. Later in her direct testimony, again without objection from trial counsel, Ms. Woodside testified that petitioner called her demanding payment for the stolen merchandise she had acquired from him. Trial Transcript, pgs. 1215-16.
The particular testimony in question occurred later during her redirect examination. Ms. Woodside had been testifying as to the circumstances surrounding the statement she gave to the police. Then the following exchange took place:
Q. All right. Thank you. Why didn't you return the items that you had in your apartment after you had learned that they may have been involved in a double murder?
A. I received a threatening phone call at work.
Q. Is that the phone call that you previously described to us?
A. Yes.
Q. From Mr. Schneider?
A. It is.
Trial Transcript, pgs. 1269-1271. At this point trial counsel asked for a sidebar conference where he pointed out that this line of questioning was within the realm of the petitioner's motion in limine. The trial court concurred. The prosecutor stated to the trial court that "I didn't mean to try to get into it. At that time I was asking her for the reason and that's what she came up with and I hadn't talked to her or anything." Trial Transcript, pg. 1270.
Trial counsel then asked for a mistrial. He specifically informed the court that he did not want a cautionary instruction "for fear that it would accent" the testimony. Trial Transcript, pgs. 1270-71. The trial court denied his request for a mistrial. Trial Transcript, pg. 1271.
The Missouri Supreme Court specifically found, that under Missouri law, declaration of a mistrial is a drastic remedy best left to the trial judge's discretion, and that the trial court's determination of the necessity of a mistrial will not be disturbed in the absence of an abuse of discretion. State v. Schneider, 736 S.W.2d at 400-01. It held that no such abuse had taken place with regard to Ms. Woodside's testimony. Id., at 401.
The determination of the necessity of a mistrial is a matter of state law. It is a drastic remedy only to be utilized when no other means exist to minimize or remove the prejudice to the defendant. The determination of the necessity of a mistrial is left to the trial judge's discretion. State v. Twenter, 818 S.W.2d 628, 633 (Mo.1991); State v. Feltrop, 803 S.W.2d 1, 9 (Mo.1991); State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo.1989); State v. Davis, 653 S.W.2d 167, 176 (Mo. 1983).
Matters of state law ordinarily are not a proper basis for federal habeas relief. An alleged evidentiary error "would not warrant federal habeas relief unless it can be shown that the ruling violated a specific constitutional provision or resulted in a trial so fundamentally unfair as to violate due process." Pickens v. Lockhart, at 1454 citing Cooley v. Lockhart, 839 F.2d 431, 432 (8th Cir.1988); see also, Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990). "The habeas petitioner must establish an error which demonstrates a violation of due process by a burden much greater than that required on direct appeal and even greater than the showing of plain error." Mendoza v. Leapley, 5 F.3d 341, 342 (8th Cir.1993).
The Court has reviewed Ms. Woodside's entire trial testimony, including that portion regarding petitioner's alleged phone threat. Trial Transcript, pgs. 1269-71. The Court concurs with the Missouri Supreme Court's findings that this testimony, even if violative of the trial court's order on the motion in limine, did not entitle the petitioner *839 to a mistrial. Firstly, petitioner fails to establish, and there is nothing on the record to show, that the state prosecutor "intentionally" elicited this particular response. This Court must, as did the trial judge, accept the state prosecutor's explanation that he had no prior knowledge that Ms. Woodside's explanation for not returning the stolen items would be tied to a phone threat, especially to the phone call she had already testified to receiving from the petitioner. Trial Transcript, pg. 1270. Secondly, in light of the fact that Ms. Woodside had already specifically testified to petitioner's threatening conversation with her regarding the payment for the stolen videocassette recorder, and his phone call to her from jail demanding payment, both without objection, her later general reference to a "threatening phone call at work" was not so prejudicial as to infect the entire trial and deny petitioner fundamental fairness. Griffin v. Delo, 946 F.2d 1356, 1358-59 (8th Cir.1991); State v. Williamson, 836 S.W.2d 70, 73 (Mo.App.1992). Finally, the Court notes that trial counsel was given the option of a cautionary instruction which he refused. Under the circumstances, this instruction would have eliminated whatever prejudice the petitioner may have suffered by this testimony.
XXIII. Trial court erred in denying petitioner's motion for change of venue
Petitioner' claim was presented to the Missouri Court of Appeals on direct appeal; thus, it is exhausted for federal habeas review purposes.
In order for federal jurisdiction to exist, the petitioner must allege that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Petitioner only generally alleges that he is in custody under a penalty of death because the Missouri Supreme Court failed to grant his motion for a change of venue. The decision of whether or not to grant a change of venue request is governed by Missouri Supreme Court Rule 32.04. State v. Feltrop, at 6; State v. Schneider, 736 S.W.2d at 402. Consequently, this is a matter of state law which is insufficient to establish a constitutional violation. See, Scott v. Jones, 915 F.2d 1188 (8th Cir.1990).
Matters of state law ordinarily are not a proper basis for federal habeas relief. An alleged evidentiary error "would not warrant federal habeas relief unless it can be shown that the ruling violated a specific constitutional provision or resulted in a trial so fundamentally unfair as to violate due process." Pickens v. Lockhart, at 1454 citing Cooley v. Lockhart, 839 F.2d 431, 432 (8th Cir.1988); see also, Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990). "The habeas petitioner must establish an error which demonstrates a violation of due process by a burden much greater than that required on direct appeal and even greater than the showing of plain error." Mendoza v. Leapley, 5 F.3d 341, 342 (8th Cir.1993).
Although there is no constitutional right to a change of venue, petitioner contends that the trial court's denial of his request violated his Sixth Amendment and Fourteenth Amendment rights to a fair and impartial jury. His claim rests primarily upon the amount of media coverage pertaining to the murders. In support of his motion, petitioner submitted numerous newspaper articles, radio broadcasts, and television reports (i.e. tapes and transcripts) pertaining to the case. At a hearing on his motion, he presented the testimony of a State Representative and a Jefferson County Commissioner who were former neighbors of the murder victims. State's Exhibit A Trial Transcript, pgs. 9-53; State's Exhibit C Amended Legal File, pgs. 47-74, 196-197, 237-290; State v. Schneider, 736 S.W.2d at 402-03. The Missouri Supreme Court found that the majority of the media reports occurred within a month of the crime; that a very small number of newspaper articles (and no radio or television reports) were published approximately three (3) months prior to trial.[14]State v. Schneider, 736 S.W.2d at 402. This Court's independent review of the trial record confirms the state court's findings.
*840 Although prejudice may be presumed from pretrial publicity when such publicity is "sufficiently prejudicial and inflammatory" and "saturates" the community where the trial is held, this presumption is rarely applied. Snell v. Lockhart, 14 F.3d 1289, 1293 (8th Cir.1994) citing Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir.1985) and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). In a federal habeas proceeding based upon a claim of presumed prejudice, the petitioner has a difficult burden to meet in establishing that the pretrial publicity was so inflammatory and so pervasive as to require a presumption of prejudice. Snell v. Lockhart, at 1294.
The Court has carefully reviewed the submitted newspaper articles and the radio and television reports (i.e. transcripts). The articles and the media reports are primarily factual, giving some details as to the nature of the murders. There are interviews with the arresting officers, but these deal primarily with the circumstances of the arrest and with David Morgan's statements to the police. There are approximately 4-5 articles which give a more "personal" touch to the reporting of the crime; i.e. statements by former students and co-workers. However, these articles were published shortly after the murders occurred; i.e., in the latter part of January 1985. A number of articles do not directly pertain to the petitioner; they report the widespread search and ultimate arrest of co-defendant Charles Palmer in California. Upon review of the media coverage, the Court finds that the coverage, though numerous, was fair, objective, and generally limited to conveying the facts to the public. Most of the coverage was confined to the initial weeks following the murders. In light of these findings, the Court concludes that the media coverage, although thorough, was not sensational nor so inflammatory as to require a presumption of prejudice. See, Snell v. Lockhart, supra.
Next to consider is whether Schneider received a fair trial; i.e. whether the jury was actually prejudiced by the pretrial publicity. In order to make this determination, an examination of the voir dire of the jury panel is necessary. Snell v. Lockhart, at 1294.
On federal habeas review, the state court's determination that the jury was not prejudiced by pretrial publicity and was qualified to hear the case is subject to a presumption of correctness and should only be overturned if the state court's findings are not fairly supported by the record, thereby resulting in "manifest error". Hill v. Lockhart, 28 F.3d 832, 847-48 (8th Cir.1994); Snell v. Lockhart, at 1294; Swindler v. Lockhart, 885 F.2d 1342, 1347 (8th Cir.1989) citing Patton v. Yount, 467 U.S. 1025, 1031-38, 104 S.Ct. 2885, 2888-93, 81 L.Ed.2d 847 (1984).
Approximately 150 venirepersons were examined. Trial Transcript, pgs. 279-785. Of these venirepersons, approximately 65 had prior knowledge of the case due to pretrial publicity. Trial Transcript, pgs. 288-91, 501-04. These veniremen were then questioned individually as to the source and extent of their exposure to pretrial publicity. Trial Transcript, pgs. 304-15, 318-467, 507-81. The Missouri Supreme Court found that:
Less than half of the veniremen questioned had ever heard of the offenses with which the defendant was charged. Those who had acquired some knowledge of the crimes were individually questioned concerning the source and extent of their information. Of these, some had seen nothing in the media, others had read only headlines or a single article and most of the rest remembered no details from the articles or broadcasts they had seen or heard; of the 65 veniremen who had some knowledge about the case, nine were excused for cause. Of the twelve veniremen ultimately seated on the jury only two had heard of the case, and they manifested an ability to put aside any previous impression and evaluate the case fairly.
State v. Schneider, 736 S.W.2d at 403.
The Court has reviewed the entire voir dire portion of the trial transcript and concurs with the findings of the state court. Although a number of jurors expressed some degree of prior knowledge of some aspect of the case, their prior knowledge was extremely general and those who expressed any reservation regarding the impact of their prior knowledge on their ability to objectively decide *841 the case on the evidence presented were excused for cause. Of the twelve jurors picked, only two had expressed any degree of prior knowledge, and both of these jurors were clearly able to put aside any preconceptions and decide the case on the evidence presented. Without question there was publicity about this case, and that people in the community where the murders took place were exposed to some form of media coverage, but under the Sixth Amendment "[t]he accused is not entitled to an ignorant jury, just a fair one." Simmons v. Lockhart, 814 F.2d 504, 510 (8th Cir.1987); see also, Snell v. Lockhart, at 1294-95; Swindler v. Lockhart, at 1348.
The Court also concurs with the state court's opinion that the petitioner's argument that the "[t]he victims were socially active and lived a homosexual lifestyle which tended to decrese [sic] the candidness on voir dire of veinermen [sic] regarding their knowledge of the victim, the case or any bias, Petitioner's Amended Petition for Writ of Habeas Corpus, pg. 131, is `pure conjecture,' unsupported by anything in the record." State v. Schneider, 736 S.W.2d at 403. Petitioner fails to present any piece of evidence to support such an absurd notion.
XXIV. Trial court erred in admitting autopsy photographs of the victims over the petitioner's objections
Petitioner presented this claim to the Missouri Supreme Court on direct appeal at which time it was denied. State v. Schneider, 736 S.W.2d at 403. This claim is exhausted for purposes of federal habeas review.
In order for federal jurisdiction to exist, the petitioner must allege that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Petitioner only alleges that he is in custody under a penalty of death because the trial court admitted autopsy photographs of the victims into evidence over the petitioner's objections. The admissibility of evidence is a matter of state law which is insufficient to establish a constitutional violation. See, Scott v. Jones, 915 F.2d 1188 (8th Cir.1990).
Petitioner, however, asserts that the admission of these photographs was so prejudicial as to deny him a fair trial and due process. As previously noted, the admission of evidence in a state trial is a matter of state law. Clark v. Groose, at 963 citing Glaze v. Redman, 986 F.2d 1192, 1195 (8th Cir.1993). Matters of state law ordinarily are not a proper basis for federal habeas relief. An alleged evidentiary error "would not warrant federal habeas relief unless it can be shown that the ruling violated a specific constitutional provision or resulted in a trial so fundamentally unfair as to violate due process." Pickens v. Lockhart, at 1454 citing Cooley v. Lockhart, 839 F.2d 431, 432 (8th Cir.1988); see also, Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990). "The habeas petitioner must establish an error which demonstrates a violation of due process by a burden much greater than that required on direct appeal and even greater than the showing of plain error." Mendoza v. Leapley, 5 F.3d 341, 342 (8th Cir.1993).
Petitioner's claim is without merit. The fact that petitioner may consider the photographs "gruesome" or that he stipulated to the cause of death of the victims is irrelevant. This Court's review is limited to a consideration of whether the photographs are relevant and probative or simply inflammatory and so prejudicial as to deny the petitioner a fair trial and due process. Hatley v. Lockhart, 990 F.2d 1070, 1072 (8th Cir.1993); Perry v. Lockhart, 871 F.2d 1384, 1391 (8th Cir.1989). The Court has reviewed the photographs and the trial record. There is no evidence from the trial record that these photographs were inflammatory. The photographs appear to be routine black and white photographs of the victims at the crime scene, as well as autopsy pictures, and were used to corroborate the testimony of the pathologist who performed the autopsies of the murder victims. State's Exhibit N autopsy photographs; State's Exhibit A Trial Transcript (Dr. Gordon L. Johnson), pgs. 1110-1169 (pgs. 1123-1125, 1144-1152 testimony relating to the photographs in question). They were relevant to the pathologist's testimony as to the nature and location of the wounds. Their "gruesome" aspect is directly attributable to the crime itself and *842 cannot serve as the basis for federal habeas relief.
XXV. Missouri's statutory scheme for imposition of the death penalty constitutes "cruel and unusual punishment" in violation of the Eighth Amendment
Petitioner's Eighth Amendment challenge to Missouri's death penalty statute was presented to and denied by the Missouri Supreme Court. State v. Schneider, 736 S.W.2d at 404. Missouri's statutory scheme for imposition of the death penalty has been consistently upheld as constitutional pursuant to the standards set forth in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). See, State v. Parkus, 753 S.W.2d 881, 885 (Mo.1988); State v. Driscoll, 711 S.W.2d 512, 517 (Mo.1986); State v. Newlon, 627 S.W.2d 606, 611-13 (Mo.1982). As for petitioner's argument that the Eighth Amendment has been violated because his sentence is disproportionate to the severity of the crime of which he was convicted, the trial record clearly supports the jury's recommendation and the trial judge's pronouncement of sentence.
The Court has carefully reviewed all pleadings filed, the submitted exhibits, and the trial transcript. It is this Court's considered opinion, that pursuant to the applicable caselaw, a majority of the petitioner's claims are procedurally defaulted. Those claims not procedurally defaulted, for the most part, are either alleged trial errors based on matters of state law which are not reviewable by this Court for federal habeas relief, or alleged trial errors which are not so prejudicial that they fatally infected the entire trial and deprived the petitioner of a fair trial and due process. Accordingly, the Court will deny petitioner's first amended petition for writ of habeas corpus.
Evidentiary Hearing
For various reasons, petitioner contends that he is entitled to an evidentiary hearing. In furtherance of this point, he has submitted documents basically consisting of affidavits of family members, affidavit of Dr. A.E. Daniel, affidavit of his 29.15 motion counsel, and his prison file (following his conviction of the subject murders). As stated before throughout this opinion, the Court finds petitioner's request meritless.
Generally, a habeas petitioner is entitled to an evidentiary hearing if s/he "alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing." Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir.1994) citing Houston v. Lockhart, 982 F.2d 1246, 1250 (8th Cir.1993) [quoting Spillers v. Lockhart, 802 F.2d 1007, 1009 (8th Cir.1986)]. However, a habeas petitioner is not entitled to an evidentiary hearing if the record clearly demonstrates that his/her claims are procedurally barred or without merit. Wilson v. Kemna, at 146, citing Reynolds v. Caspari, 974 F.2d 946, 948 (8th Cir.1992); Wiles v. Jones, 960 F.2d 751, 754 (8th Cir.1992). Furthermore, a petitioner who has failed to develop evidence in the state courts must show cause and prejudice for that failure in order to merit an evidentiary hearing in federal court. McKee v. Nix, 995 F.2d 833, 835-36 (8th Cir.1993) citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-9, 112 S.Ct. 1715, 1719, 118 L.Ed.2d 318 (1992).
This Court has thoroughly reviewed the trial transcript, the motion court's decisions, the Missouri Supreme Court decisions, and the documents submitted by the petitioner in support of his request for an evidentiary hearing. A large number of the petitioner's habeas claims are procedurally defaulted, thereby, precluding any evidentiary hearing before this Court. As to his remaining non-defaulted claims, plaintiff was provided several opportunities to develop his evidence before the state courts. He fails to show cause and prejudice as to why this "evidence" was not developed before the state courts. Furthermore, this Court has reviewed the submitted papers and finds that they do not add any additional evidence which would have probably resulted in a different verdict. The family members' affidavits are not particularly insightful as to the petitioner's psyche nor do they meaningfully contribute to a characterization of the petitioner as a "mentally or psychologically impaired" individual. As a part of Petitioner's 29.15 motion, *843 counsel submits her affidavit attesting that she should have, but did not, provide Dr. A.E. Daniel with a plethora of documents in order to bolster his testimony at petitioner's 29.15 motion hearing. However, this self-serving admission of "ineffective assistance" fails to establish cause pursuant to Coleman, supra. Finally, the Court notes that Dr. A.E. Daniel's affidavit fails to sufficiently show that a "miscarriage of justice" will occur if this Court does not conduct an evidentiary hearing regarding petitioner's mental status. His affidavit is clearly based upon his testing and observations of the petitioner long after he had been arrested, incarcerated prior to trial, and convicted. Even if he had been given certain documents pertaining to the petitioner's education, military service, etc., Dr. A.E. Daniels still fails to reach a definitive conclusion regarding the petitioner's mental state, especially at the time the murders were committed. He only attests that he "might" have concluded that petitioner suffered from "diminished capacity".
Petitioner fails to demonstrate that constitutional violations have probably resulted in the conviction of one who is "actually innocent", Schlup, ___ U.S. ___, 115 S.Ct. 851 (1995); Murray v. Carrier, supra; see also, McCann v. Armontrout, 973 F.2d 655 (8th Cir.1992), or "actually innocent" of the death penalty, Sawyer, supra.
Therefore, all requests for discovery and for an evidentiary hearing will be denied.
Certification of Probable Cause
Under the provisions of 28 U.S.C. § 2251, petitioner must be granted a certificate of probable cause in order to proceed with the appeal of the merits of this Court's determination. On the record before it, the Court must deny the issuance of such certificate for the following reasons:
In Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1982), the Supreme Court meticulously elaborated the standard for determining whether to issue a certificate of probable cause, setting forth the following standard:
It is generally agreed that "probable cause requires something more than the absence of frivolity and that standard is a higher one that the `good faith' requirement of [28 U.S.C.] 1915." We agree with the weight of opinion in the Court of Appeals that a certificate of probable cause requires petitioner to make a "substantial showing of the denial of [a] federal right." In a capital case, the nature of the penalty is a proper consideration in determining whether to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate.
Barefoot, 463 U.S. at 893, 103 S.Ct. at 3394-95 (citations omitted). The meaning of the "substantial showing" standard is:
In requiring a "question of some substance" or a "substantial showing of the denial of [a] federal right", obviously the petitioner need not show that he should prevail on the merits. Rather, he must demonstrate that the issues are debatable among the jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are "adequate to deserve encouragement to proceed further."
Barefoot, 463 U.S. at 893, n. 4, 103 S.Ct. at 3395, n. 4. Within the standards so clearly set out in Barefoot, this Court cannot find that a certificate of probable cause is warranted in this case. The law is so well-settled with regard to the grounds that petitioner raises, in his first-amended petition for writ of habeas corpus, that the issues are not subject to debate.
Accordingly,
IT IS HEREBY ORDERED that petitioner's requests for discovery and an evidentiary hearing are DENIED.
IT IS FURTHER ORDERED that petitioner Eric Adam Schneider's first-amended petition for writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that certificate of probable cause shall not issue herein.
IT IS FINALLY ORDERED that execution of sentence is further stayed until 5:00 p.m. of June 28, 1995 in order to allow petitioner an opportunity to appeal this Court's denial of a certificate of probable cause to the *844 Eighth Circuit Court of Appeals. In the event such an appeal is not sought, then the stay shall expire on June 29, 1995. If the notice of appeal is filed on or before June 28, 1995 the stay of execution of the sentence shall be determined by further order of the United States Court of Appeals for the Eighth Circuit.
NOTES
[1] Contrary to the State's assertion in its letter to the Court (# 4), filed March 22, 1995, this case has been ripe for disposition since February 14, 1992 when petitioner's appointed counsel filed his reply to the State's response, not since January 17, 1990. Furthermore, the Court is at a loss as to why the State's records show that this case has been pending since January 17, 1990 when petitioner did not file his motion for stay of execution, as well as his original petition for writ of habeas corpus, until October 17, 1990.
[2] Although the record is somewhat unclear, it appears that petitioner may have initially filed a Rule 27.26 post-conviction relief motion; however, both the motion court and the Missouri Supreme Court addressed the motion as a Rule 29.15 motion. This may be due to the fact that Rule 27.26 was repealed and replaced by Rule 29.15, effective January 1, 1988.
[3] The Court will address each ground separately as to whether or not it is procedurally barred from federal habeas review.
[4] Petitioner also contends that this Court must review his claims otherwise a fundamental miscarriage of justice will occur. This contention regards his thirty-five (35) separate instances of ineffective assistance of his trial counsel [the fundamental-miscarriage-of-justice ground is the 36th ground listed with regard to his IAC claim]. The Court will address petitioner's fundamental-miscarriage-of-justice argument after addressing each of his 35 grounds for his IAC claim regarding trial counsel.
[5] The State avers that the record is silent as to the striking of venireperson Phegley for cause. The Court's review of the trial transcript reveals that venireperson Phegley was struck for cause on the State's motion. Trial Transcript, pg. 429.
[6] There were no medical records presented at petitioner's trial or to the state courts at his post-conviction proceedings which confirms any diagnosis of hyperactivity during petitioner's childhood. This "diagnosis" was rendered by Dr. Daniel at the 29.15 motion hearing based upon 1) two post-conviction interviews with the petitioner and 2) trial testimony by petitioner's mother wherein she testified that when petitioner was approximately seven (7) years old she had taken him to an unidentified doctor who prescribed Ritalin; she gave him the Ritalin for one year. State's Exhibit I, pgs. 7-9, 25-26, 28-30.
[7] Petitioner concedes that he did not clearly articulate this claim in his Rule 91 state habeas petition. Even if he did raise it in his Rule 91 state habeas petition, the procedural bar still exists.
[8] Although the Court stated earlier in this opinion that it would not expand the record for purposes of further fact-finding, the Court did review Dr. Daniel's affidavit to see if there was anything in it which should have been presented to a jury. This affidavit is as unremarkable as the doctor's testimony at the 29.15 motion hearing. All it says is that if Dr. Daniel had been given additional information when he testified at the 29.15 motion hearings that he now had at his disposal, he might change his opinion and find that petitioner suffered from a diminished mental capacity at the time of the murders. This piece of evidence is simply another one of the petitioner's suppositions.
[9] The instruction given at petitioner's trial was modeled after MAI-CR2d. 13.44 on submission of mitigating circumstances.
[10] The present case presents a conflict as to the proper "harmless error" standard to use. In Brecht v. Abrahamson, ___ U.S. ___, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) the Supreme Court held that in most habeas cases, the correct "harmless error" standard is "whether the error `had substantial and injurious effect or influence in determining the jury's verdict.'" Id., ___ U.S. at ___, 113 S.Ct. at 1722 quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946). However, in Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir.1993), the Eighth Circuit Court of Appeals held that the Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) "harmless error" standard, and not the Brecht "harmless error" standard, applies in habeas cases where the state courts did not have the opportunity to review the error under the "harmless error" standard. Id., at 1430. In the present habeas case, since trial counsel did not preserve the error, the Missouri Supreme Court appeared to at first refuse to address the matter of prosecutorial misconduct, but then it did appear to address it only insofar as to whether the comments necessitated a mistrial. Since it is not clear as to whether the Missouri State Court actually "had the opportunity" to address the issue under the "harmless error" standard, this Court has reviewed the prosecutor's comments both under the Chapman standard and the Brecht standard.
[11] Missouri is a "weighing" state because the sentencer must determine that sufficient aggravating circumstances (in Missouri, at least one statutory aggravating circumstance) exist to outweigh any mitigating circumstances in order to impose the death penalty.
[12] Petitioner also alleges that Mr. Corcoran was improperly allowed to testify as to the reason Thompson's socks failed to have blood on them or in them. Petitioner fails to specifically cite to this improper testimony. The Court has thoroughly examined Mr. Corcoran's direct, cross, redirect, and recross examination and is unable to locate any testimony which even remotely hints at whether blood was found or not found on Thompson's socks. Trial Transcript, pgs. 1617-67. Mr. Corcoran did testify generally to the chemical properties of blood and the common reactions of blood-stained clothing to hot and cold water, but there is absolutely no reference to Thompson's socks. Trial Transcript, pgs. 1624-29.
[13] The state prosecutor's objection to trial counsel's line of questioning of Ms. Woodside was sustained.
[14] The crime was committed in January 1985 and petitioner's trial (excluding the pretrial hearings) was in October 1985. Petitioner was sentenced in December 1985.
|
25 F.3d 1058NOTICE: 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.
Roy E. SCHWASINGER, Bruce E. Baird, Leanne L. Hoyt, Lee RoyRothe, as individuals and other individuals that had recordsin the office located at 825-827 Riverside Drive, FortCollins, Colorado, Plaintiffs-Appellants,v.UNITED STATES OF AMERICA, Walter O'Cheskey, John Sims, DavidLangston, Robert Wilson, Kenneth M. Smith, Neal Fleming,Mary E. Baterhorst, Neal Sox Johnson, Robert Hopper, MarvinF. Marshall, Larry P. Stewart, John L. Davis, Richard M.Etzler, and other agents participating in the searchwarrant; Honorable Richard M. Borchers, Magistrate Judge;John E. Truehitt; William B. Mateja; Jeffery Christensen;City of Fort Collins, Defendants-Appellees.
No. 93-1378.
United States Court of Appeals, Tenth Circuit.
June 1, 1994.
1
Before ANDERSON and KELLY, Circuit Judges, and LUNGSTRUM,** District Judge.
ORDER AND JUDGMENT1
2
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.
3
After plaintiffs-appellants' property was seized pursuant to a search warrant, they brought a civil rights action against twenty defendants in the United States District Court for the District of Colorado. The district court granted the defendants-appellees' motions to dismiss on several different grounds, including (1) failure to state a claim; (2) failure to comply with the requirements of Fed.R. Civ. P. 8; and (3) entitlement to some form of immunity--sovereign, absolute, or qualified.
4
The complaint, which contains twenty-five pages of incoherent and random accusations, fails to include specific allegations of wrongdoing by almost all of the named defendants. The few paragraphs which specifically name defendants do not include allegations sufficient to support a civil rights violation. Having reviewed the parties' briefs, the record, and the district court's decision, we affirm for substantially the same reasons as those set out by the district court during the September 17, 1993 hearing. See Appendix to Federal Appellee's Br., doc. 12.
5
Plaintiffs-appellants' outstanding motions, including the document entitled "Judicial Notice," are DENIED. Defendants-appellees' motion to strike and for sanctions is DENIED. The judgment of the United States District Court for the District of Colorado is AFFIRMED and the mandate shall issue forthwith.
**
Honorable John W. Lungstrum, District Judge, United States District Court for the District of Kansas, 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
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6578
HOWARD L. ROBINSON, JR.,
Plaintiff - Appellant,
v.
VIRGINIA PAROLE BOARD; HELEN F. FAHEY,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:10-cv-00140-MSD-FBS)
Submitted: October 19, 2010 Decided: October 27, 2010
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Howard L. Robinson, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Robinson, Jr., appeals the district court’s
order denying relief without prejudice on his 42 U.S.C. § 1983
(2006) complaint. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Robinson v. Virginia Parole Bd., No.
2:10-cv-00140-MSD-FBS (E.D. Va. April 7, 2010). We deny all of
Robinson’s pending motions and 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
|
902 F.2d 222
SANDOZ PHARMACEUTICALS CORPORATION, Appellant,v.RICHARDSON-VICKS, INC., Appellee.
No. 89-3654.
United States Court of Appeals,Third Circuit.
Argued Jan. 17, 1990.Decided April 24, 1990.
John W. Nields, Jr. (argued), Kathleen H. McGuan, Howrey & Simon, Washington, D.C., Thomas Herlihy, III, Herlihy, Harker & Kavanaugh, Wilmington, Del., Anne S. Davidson, Michael McGrane, Sandoz Pharmaceuticals Corp., East Hanover, N.J., for appellant.
Harold P. Weinberger (argued), Jonathan M. Wagner, Samuel Friedman, Kramer, Levin, Nessen, Kamin & Frankel, New York City, Jack B. Blumenfeld, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Robert N. Anderson, Richardson-Vicks, Inc., Shelton, Conn., for appellee.
Before BECKER, GREENBERG and NYGAARD, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
1
This appeal, from an order of the district court denying plaintiff/appellant Sandoz Pharmaceuticals Corp.'s request for a preliminary injunction against defendant/appellee Richardson-Vicks, Inc., is another installment in the cough syrup marketing wars. Sandoz alleges that Vicks's representations about its product, Vicks Pediatric Formula 44 ("Pediatric 44"), constituted false and deceptive advertising in violation of section 43(a) of the Lanham Act, 15 U.S.C. Sec. 1125(a) (1988).
2
At the nub of the controversy is Vicks's assertion that Pediatric 44 starts to work the instant it is swallowed. Sandoz alleges that the representations about the instant action of the product are false. It also alleges that such representations constitute per se violations of the Lanham Act, given Vicks's failure to disclose, on Pediatric 44's label, that the demulcents which theoretically effectuate the immediate relief are intended to be active1 yet are not approved by the Food and Drug Administration ("FDA").2 Additionally, Sandoz challenges Vicks's advertising claims that Pediatric 44 is superior to its competitors.
3
After an extensive hearing, the district court found that Sandoz: (1) had failed to meet its burden of proving that any of Vicks's advertising claims was false or deceptive, and (2) had not proved irreparable injury. Upon review, we are satisfied that the district court's findings of fact are not clearly erroneous and that it did not abuse its discretion or commit an error of law in refusing to enjoin Vicks's advertising. Hence, we affirm.
4
Our conclusions depend on the resolution of an interesting legal issue arising out of the interface between the Lanham Act and the Food, Drug and Cosmetic Act, 21 U.S.C. Secs. 301-92 (1982). The controversy centers on whether a Lanham Act plaintiff needs to show only that the defendant's advertising claims of its own drug's effectiveness are inadequately substantiated under FDA guidelines, or whether the plaintiff must also show that the claims are literally false or are misleading to the public. For the reasons that follow, we conclude that the additional proof that a defendant's claims are literally false or actually misleading is necessary to sustain a Lanham Act claim.
I. FACTS AND PROCEDURAL HISTORY
5
Sandoz manufactures and sells various pharmaceutical products. Its offerings include Triaminic-DM and Triaminicol, leading cough medicines which may be used by children as well as adults. Like Sandoz, Vicks produces and markets a wide array of pharmaceuticals, but, unlike Sandoz, it has not had a market leader in the over-the-counter (OTC) children's cough medicine market. In the fall of 1989, Vicks sought to develop such a leader by introducing a new product, Pediatric 44.
6
Before its nationwide release of Pediatric 44, Vicks developed a consumer advertising campaign which claimed that Pediatric 44 "starts to work the instant they [the children] swallow" by "shielding irritated cough receptors on contact." Vicks planned to carry this message to consumers via television commercials and print advertisements in consumer magazines, and to pediatricians via "information sheets" mailed to doctors. In addition to claiming that Pediatric 44 "starts working from the very first swallow," the information sheets also state that "Pediatric FORMULA 44 provides more cough relief in the first thirty minutes [than] those thin, watery cough medicines." To support this statement, the Vicks circular used a bar graph which compared Pediatric 44 with "the leading OTC cough syrup," and showed Pediatric 44 apparently outperforming the competitor.
7
Vicks's advertising claims with regard to Pediatric 44 are based on the effect of certain locally-acting, inert sugary liquids known as "demulcents," which operate directly on cough receptors in the recipient's throat and respiratory passages. Demulcents are topically acting antitussives, in contrast to centrally acting antitussives, which are the traditional cough antidotes.3 Because these demulcents work on contact, Vicks claims that Pediatric 44 begins to reduce coughs as soon as it is swallowed.4
8
Vicks performed various tests to support this conclusion. The record contains test results which support, if only marginally, Vicks's arguments that Pediatric 44 starts to work right away, that there is a scientific basis for this claim, and that Pediatrics 44 is superior to its competitors. However, the FDA has never approved any "demulcents" as effective for the relief of coughs, see supra note 1, and whether Vicks's level of testing could meet the high standards for drug approval set by the FDA is far from certain.5
9
On September 22, 1989, the district court filed an opinion and order denying Sandoz's motion for preliminary injunction. The court first found that Vicks's consumer advertising claims were not literally false, because Vicks's test results indicated that the demulcents in Pediatric 44 could begin to work immediately. In addition, the court found no evidence to support Sandoz's contentions that Vicks's consumer advertising claims were misleading, because Sandoz had failed to advance any substantial proof indicating that the advertising was deceptive. The court further concluded that advertising claims are not per se misleading if inadequately substantiated under FDA guidelines.
10
Without addressing the claim directly, the district court apparently rejected Sandoz's contention that it is misleading for a manufacturer to promote a certain ingredient in its cough medicine as "start[ing] to work the instant" it is swallowed, yet list this ingredient as inactive on the medicine's label. The issue was extensively briefed and argued, but the court found that Sandoz never advanced any evidence that consumers were misled by any aspect of Vicks's campaign.
11
The court also found that Vicks's claims on its information sheets, including the claim that Vicks starts to work "from the first swallow," while thin syrups start to work "within the first 30 minutes", were not literally false and that Sandoz had failed to prove that these sheets were misleading to the pediatricians who received them. There was no evidence that trained pediatricians would interpret the graph contained in these sheets as implying that Pediatric 44 was clearly superior to competing brands.
12
Finally, the court held that Sandoz was unable to prove irreparable harm in view of the lack of proof of how consumers or pediatricians would be affected by Vicks's advertising. The court concluded that the record did not support the determination that, as a result of Vicks's advertising, Sandoz would lose part of its customer base, stating that no consumer surveys had been presented demonstrating a causal link between Vicks's advertising and Sandoz's sales. The court took special note of the evidence showing that, despite Vicks's test advertising in Pittsburgh, Sandoz's sales of Triaminic in that city increased the same 27% as was reflected in national figures.
13
We review the district court's conclusions of law in plenary fashion, Premier Dental Prods. Co. v. Darby Dental Supply Co., 794 F.2d 850, 852 (3d Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 436, 93 L.Ed.2d 385 (1986), its factual findings under a clearly erroneous standard, Eisenberg ex rel. NLRB v. Lenape Prods., Inc., 781 F.2d 999, 1003 (3d Cir.1986), and its decision to deny the injunction on an abuse of discretion standard, id. Because our scope of review of fact findings is so narrow, and, as noted above and explained below, the record supports the district court's findings of fact, we will not elaborate on the intricacies of the record. Rather, we will devote the bulk of our time to discussing the legal issues.
II. STATUTORY BACKGROUND
14
Three different federal statutory schemes regulate OTC drug marketing, but the interplay among the regulations is somewhat ambiguous. The primary regulatory system covering prescription and non-prescription drugs was created by the Food, Drug and Cosmetic Act (the "FD & C Act"). 21 U.S.C. Secs. 301-92 (1982). Under the FD & C Act, a "new" drug may not be marketed and sold in the United States without prior approval by the FDA. See id. at Secs. 331(d), 355(a). To obtain this approval, an applicant must demonstrate, by the presentation of substantial evidence, that the drug is safe and effective for the uses recommended in its labeling. See id. at Sec. 355.
15
The approval process usually consists of three stages of review. First, the FDA appoints an advisory review panel of independent qualified experts. This panel submits a recommendation to the FDA stating whether a drug is or is not safe and effective for its designated purposes or whether there is insufficient evidence upon which to base a recommendation. Second, the FDA publishes a tentative "final monograph" presenting its initial position on the drug's safety and effectiveness. Third, after an extensive comment and review period, the FDA publishes a final monograph that establishes the conditions under which a drug is considered safe and effective. See 21 C.F.R. Sec. 330.10 (1988). Once a final monograph goes into effect, it is illegal to sell a drug described therein unless it conforms therewith.6
16
Public regulation of trade competition beyond antitrust violations is vested by the Federal Trade Commission Act (the "FTC Act"), 15 U.S.C. Secs. 41-58 (1988), in the Federal Trade Commission (the "FTC"). The FTC Act prohibits "unfair methods of competition," including advertisements containing false or misleading representations or material omissions. See 15 U.S.C. Secs. 45, 52(a), 55(a)(1) (1988) (codifying FTC Act Secs. 5, 12, 15). The Supreme Court and other federal courts have given an expansive reading to both the scope of the FTC Act and the powers granted to the FTC thereunder. See F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965); American Home Prods. Corp. v. F.T.C., 695 F.2d 681 (3d Cir.1982). This expansive view of the FTC's capacity to define and regulate unfair trade practices is premised upon the FTC's "familiarity with the expectations and beliefs of the public, acquired by long experience." American Home Prods., 695 F.2d at 686.
17
To a certain degree, the jurisdictions of the FDA and the FTC overlap in the regulation of OTC drug marketing. The FDA's authority in this field derives from the requirement that no drug may be sold in the United States unless it has FDA approval, and then only within the standards set by the FDA. The FTC's authority derives from its power to regulate any false or deceptive advertising or unfair trade practices, even in the OTC drug industry. To resolve issues of enforcement resulting from this concurrent jurisdiction, in 1971 the FDA and the FTC agreed to a division of regulatory authority: the FDA regulates the labeling of OTC drugs while the FTC monitors the advertising for these drugs. See FDA/FTC Memorandum of Understanding, 36 Fed.Reg. 18,539 (1971).
18
The third relevant statute in the field of OTC drug marketing is the statute at issue in this case, the Lanham Act. The Lanham Act creates a civil remedy for the use of a "false or misleading description of fact, or false or misleading representation of fact" in connection with the sale of goods in interstate commerce. Trademark Law Revision Act, Pub.L. No. 100-667, Sec. 132, 102 Stat. 3946 (1988) (codified as amending 15 U.S.C. Sec. 1125(a)). As the court noted in Procter & Gamble Co. v. Chesebrough-Pond's, Inc., 747 F.2d 114 (2d Cir.1984):
19
After initial uncertainty as to the statute's reach, with some believing it to be little more than a codification of the common law action for deceitful advertising, it is now settled that it creates a new statutory tort of broader scope, which requires neither proof of literal or obvious falsehood, nor of intent to deceive. As we stated in Vidal Sassoon, "Sec. 43(a) of the Lanham Act encompasses more than blatant falsehoods. It embraces 'innuendo, indirect intimations, and ambiguous suggestions' evidenced by the consuming public's misapprehension of the hard facts underlying an advertisement."
20
Id. at 118-19 (citations omitted) (quoting Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 277 (2d Cir.1981)). Moreover, the Lanham Act, unlike the FD & C Act and the FTC Act, expressly establishes a private remedy for any violation thereunder. See 15 U.S.C. Sec. 1125(a).
III. THE FALSE ADVERTISING CLAIMS
21
A. Inadequate Substantiation and the Lanham Act
22
The first question of law we must address is whether a plaintiff can prevail under the Lanham Act by showing simply that the defendant's advertising claims about its OTC drug's effectiveness are inadequately substantiated under federal guidelines, without also showing that the claims are literally false or are misleading to the consuming public. Sandoz's prime contention on appeal is that it can.
23
The FTC has the authority under Sections 5 and 12 of the FTC Act, 15 U.S.C. Secs. 45 & 52, to find that an inadequately substantiated advertising claim regarding a non-prescription drug is deceptive or misleading, and thus illegal. See American Home Prods., 695 F.2d at 697; see also Bristol-Myers Co. v. F.T.C., 738 F.2d 554, 562 (2d Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 960, 83 L.Ed.2d 966 (1985). Sandoz argues that the language in the FTC Act prohibiting "any false advertising," 15 U.S.C. Sec. 52(a), is functionally indistinguishable from the language in the Lanham Act prohibiting "any false description or representation." 15 U.S.C. Sec. 1125(a). Therefore, according to Sandoz, "it would be absurd" to conclude that an inadequately substantiated claim can violate Sections 5 and 12 of the FTC Act but not Section 43(a) of the Lanham Act.
24
Vicks, on the other hand, states that Sandoz cannot succeed merely by showing that Vicks's advertising claims are not supported by enough evidence to warrant FDA approval. Rather, Vicks maintains that Sandoz must prove that insufficient substantiation misleads consumers or pediatricians. Vicks claims that it is "well settled" that "[t]o prevail on a claim of unfair advertising under Section 43(a), a plaintiff must first prove by a preponderance of the evidence that the claims it challenges are false or deceptive." Toro Co. v. Textron, Inc., 499 F.Supp. 241, 251 (D.Del.1980). Hence, the argument continues, because Sandoz advanced no evidence of target audience confusion regarding Vicks's promotional campaign, it has not met its burden of proving deception.
25
The only court of appeals to have faced this question reached the conclusion advocated by Vicks. The Second Circuit, which had previously ruled that the FTC could find a violation of Sections 5 and 12 based upon the inadequate substantiation of a defendant's advertising claim regarding an OTC drug, Bristol-Myers Co., 738 F.2d at 562, held that a Lanham Act plaintiff
26
bears the burden of showing that a challenged advertisement is false or misleading, not merely that it is unsubstantiated by acceptable tests or other proof.
27
Procter & Gamble Co., 747 F.2d at 119 (citations omitted). We agree with the holdings of the Second Circuit in Procter & Gamble and of Judge Stapleton, then sitting on the district court, in Toro, supra. These decisions are not only well-reasoned, they are consistent with this court's long-established construction of the Lanham Act in general. See Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648 (3d Cir.1958) (noting that the plaintiff bears the burden of persuasion in Lanham Act cases).7
28
The key distinctions between the FTC and a Lanham Act plaintiff turns on the burdens of proof and the deference accorded these respective litigants. The FTC, as a plaintiff, can rely on its own determination of deceptiveness. In contrast, a Lanham Act plaintiff must prove deceptiveness in court. As the Supreme Court has stated:
29
[A]s an administrative agency which deals continually with cases in the area, the [FTC] is often in a better position than are courts to determine when a practice is "deceptive" within the meaning of the Act. This Court has frequently stated that the [FTC's] judgment is to be given great weight by reviewing courts. This admonition is especially true with respect to allegedly deceptive advertising since the finding of a Sec. 5 violation in this field rests so heavily on inference and pragmatic judgment.
30
Colgate-Palmolive Co., 380 U.S. at 385, 85 S.Ct. at 1042-43 (footnote omitted); see also Diver, Statutory Interpretation in the Administrative State, 133 U.Pa.L.Rev. 549, 593 (1985) ("[C]ourts should presumptively defer to an agency's interpretation of a statute under which the agency exercises significant policymaking responsibility.").
31
Accordingly, consumer testimony proving actual deception is not necessary when the FTC claims that an advertisement has the capacity to deceive or mislead the public. See American Home Prods., 695 F.2d at 687-88 n. 10; see also Simeon Mgmt. Corp. v. F.T.C., 579 F.2d 1137, 1146 n. 11 (9th Cir.1978). Concomitantly, in cases brought by the FTC under Section 5, "[a]dvertising capable of being interpreted in a misleading way should be construed against the advertiser." Resort Car Rental System, Inc. v. F.T.C., 518 F.2d 962, 964 (9th Cir.), cert. denied sub nom. MacKenzie v. United States, 423 U.S. 827, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975), quoted with approval in American Home Prods., 695 F.2d at 687 n. 9.8 A Lanham Act plaintiff, on the other hand, is not entitled to the luxury of deference to its judgment. Consequently, where the advertisements are not literally false, see PPX Enterprises v. Audio Fidelity Enterprises, 818 F.2d 266, 272 (2d Cir.1987), plaintiff bears the burden of proving actual deception by a preponderance of the evidence. Hence, it cannot obtain relief by arguing how consumers could react; it must show how consumers actually do react.
32
Sandoz's invitation to blur the distinctions between the FTC and a Lanham Act plaintiff would require us to ignore the separate jurisprudence that has evolved under each Act, and the sound reasoning that underlies it. We decline the invitation. We hold that it is not sufficient for a Lanham Act plaintiff to show only that the defendant's advertising claims of its own drug's effectiveness are inadequately substantiated under FDA guidelines; the plaintiff must also show that the claims are literally false or misleading to the public.
B. Sufficiency of Evidence
1. Consumer Advertisements
33
Sandoz takes issue with the district court's conclusion that it had failed to meet its burden of proof. The district court relied on the lack of a consumer survey, which is a common mode of proof in these cases. Sandoz submits that consumer surveys or some other surrogate for the FTC's expertise are needed only when an advertising claim is ambiguous, not when it is clear but inadequately substantiated. However, there is no legal support for Sandoz's theory.
34
The law does not presume that consumers assume that all OTC drug advertising claims are substantiated. Accordingly, a plaintiff must produce consumer surveys or some surrogate therefor to prove whether consumers expect an advertising claim to be substantiated and whether they expect the level of substantiation to be greater than that which the defendant has performed. The effect of the advertisement on the consumer is the critical determination, and it must be demonstrated by a Lanham Act plaintiff regardless of whether the claim is facially ambiguous.
35
As we stated earlier, the FTC's unique expertise and experience regarding consumer expectations allows it to determine for itself the level of substantiation consumers expect to support an advertising claim. If we were to hold that a Lanham Act plaintiff who has shown that a defendant's advertising claim was not supported by evidence sufficient to meet FDA testing regulations need not prove that consumers expect the claim to meet FDA testing requirements, then the Lanham Act plaintiff would stand in the same position as the FTC. Only the FTC is entitled to presume consumer expectations, however, because only the FTC has the necessary administrative experience and expertise.
36
As noted above, Sandoz failed to advance actual evidence of consumer misinterpretation. Furthermore, Sandoz's counsel in oral argument before this court admitted that Sandoz had not proven either that the ingredient in Pediatric 44 designed to shield cough receptors was ineffective or that Vicks's advertising claim was literally false. The district court carefully analyzed the evidence of Vicks's theoretical and empirical justifications for its advertising claims, and we cannot say that its finding that Sandoz did not establish that consumers were misled was clearly erroneous. The court had ample evidence before it, including the contents of Vicks's advertisements, the statements of multiple experts, and the results of various tests performed using Pediatric 44.
2. Vicks's Circulars To Physicians
37
Turning to the advertising targeted at the pediatricians, we note first that, as pointed out supra at 225, the district court found that Vicks's claims in the physicians circulars were not literally false; we cannot say that that finding was clearly erroneous. Thus, we turn to whether the claims to physicians were misleading. We note that "[c]ontext can often be important in discerning the message conveyed and this is particularly true where, as here, the target of the advertising is not the consuming public but a more well informed and sophisticated audience." Plough, Inc. v. Johnson & Johnson Baby Prods. Co., 532 F.Supp. 714, 717 (D.Del.1982). Hence, a target audience's special knowledge of a class of products is highly relevant to any claim that it was misled by an advertisement for such a product. Sandoz never advanced any hard evidence that pediatricians would be misled by Vicks's information sheets or that they would believe that the assertions contained therein were supported by a greater degree of testing data than Vicks actually had compiled. We therefore conclude that the district court's finding that Sandoz had not proven that the pediatrician advertisements were misleading is also not clearly erroneous. Likewise, the court's finding that Vicks's claim that Pediatric 44 was superior to the "thin watery cough medicines" is sufficiently supported. While the evidence on this point is underwhelming, it is enough to get past the low threshold of review.
IV. THE LABELING CLAIM
38
We turn now to the question whether a Lanham Act false labeling claim exists against a manufacturer who lists an ingredient as "inactive" when FDA standards seem to require that such an ingredient be labeled as "active."9
39
Sandoz has presented no evidence showing that Pediatric 44's "inactive" label is misleading to the consuming public, and Sandoz did not actively pursue the argument, either here or in the district court, that the "inactive" label in question was deceptive. Instead, it alleges that the label contains a literally false description of the product. In essence, Sandoz states that if Vicks claims that its demulcents enable Pediatric 44 to begin to work as soon as it is swallowed, then these demulcents are "active" ingredients within the meaning of 21 C.F.R. Sec. 210.3(b)(7). Vicks responds that Sandoz's claim is no more than an allegation of a misbranding violation under the FD & C Act, and that, although Sandoz's allegation may create a cause of action for the FDA, as will be explained infra, the claim does not give rise to a cause of action for a private plaintiff under the Lanham Act.
40
The Lanham Act is primarily intended to protect commercial interests. See Colligan v. Activities Club of New York, Ltd., 442 F.2d 686, 692 (2d Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971). A competitor in a Lanham Act suit does not act as a " 'vicarious avenger' of the public's right to be protected against false advertising." American Home Prods. Corp. v. Johnson & Johnson, 672 F.Supp. 135, 145 (S.D.N.Y.1987). Instead, the statute provides a private remedy to a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor's false advertising. The FD & C Act, in contrast, is not focused on the truth or falsity of advertising claims. It requires the FDA to protect the public interest by "pass[ing] on the safety and efficacy of all new drugs and ... promulgat[ing] regulations concerning the conditions under which various categories of OTC drugs ... are safe, effective and not misbranded." American Home Prod. Corp. v. Johnson & Johnson, 436 F.Supp. 785, 797-98 (S.D.N.Y.1977), aff'd, 577 F.2d 160 (2d Cir.1978).
41
Sandoz argues that false labeling is actionable under the Lanham Act, and rather conclusively assumes that Vicks's listing of the demulcents in its Pediatric 44 as "inactive" is false. Assuming arguendo that false labeling is actionable under the Lanham Act, Sandoz cannot prevail on its labeling claim because it has not proved that Vicks's labeling is false. Sandoz's counsel argued to the district court that "[i]f [the demulcents] relieve coughs they're active. That's true as a matter of common sense and normal English." App. at 175, Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., (D.Del.1989) (No. 89-3654). Such an interpretation of FDA regulations, absent direct guidance from the promulgating agency, is not as simple as Sandoz proposes.
42
The FDA has not found conclusively that demulcents must be labelled as active or inactive ingredients within the meaning of 21 C.F.R. Sec. 210.3(b)(7). See supra note 1 and accompanying text.10 We decline to find and do not believe that the district court had to find, either "as a matter of common sense" or "normal English," that which the FDA, with all of its scientific expertise, has yet to determine. Because "agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise." McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969). Thus, we are unable to conclude that Vicks's labeling of Pediatric 44's demulcents as inactive is literally false, even if Vicks concurrently claims that these ingredients enable its medicine to work the instant it is swallowed.
43
Sandoz's position would require us to usurp administrative agencies' responsibility for interpreting and enforcing potentially ambiguous regulations. Jurisdiction for the regulation of OTC drug marketing is vested jointly and exhaustively in the FDA and the FTC, and is divided between them by agreement. See FDA/FTC Memorandum of Understanding, 36 Fed.Reg. 18,539 (1971). Neither of these agencies' constituent statutes creates an express or implied private right of action, see, e.g., Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir.1974); American Home Prods. Corp. v. Johnson & Johnson, 436 F.Supp. at 797-98, and what the FD & C Act and the FTC Act do not create directly, the Lanham Act does not create indirectly, at least not in cases requiring original interpretation of these Acts or their accompanying regulations. Cf. L'Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649, 651 (3d Cir.1954) (noting that the Lanham Act created a distinct and separate federal cause of action).
44
A Lanham Act plaintiff must prove, by a preponderance of the evidence, (1) that the defendant's promotions contained a material representation or description, and (2) that this material representation or description was false or verifiably misleading. The cases cited by Sandoz do no more than confirm these standards and emphasize that an advertising claim is not shielded from the Lanham Act merely by appearing only on a product's label.11 They provide no support for the theory that it is appropriate for a court in a Lanham Act case to determine preemptively how a federal administrative agency will interpret and enforce its own regulations. See Cutler v. Kennedy, 475 F.Supp. 838, 856-57 (D.D.C.1979) (stating that it is not for a court to force the FDA to interpret, apply and enforce its regulations in a manner determined by the court to fairly effectuate the FD & C Act's policies).12
45
Accordingly, under the facts of this case, Sandoz cannot prevail on its claim that Pediatric 44's label violates the Lanham Act. Sandoz made no showing to the district court that this label was misleading to consumers or that it contained any false statement aside from the allegedly inaccurate "inactive" labeling of the demulcents. As we have explained, the issue of whether an ingredient is properly labeled "active" or "inactive" under FDA standards is not properly decided as an original matter by a district court in a Lanham Act case. Therefore, the district court did not err in refusing to accept this theory as grounds for proving success on the merits in this law suit.
V. CONCLUSION
46
For the foregoing reasons, the district court's findings of fact are not clearly erroneous, and it was correct in rejecting Sandoz's legal claims. It is clear, therefore, that the district court did not abuse its discretion in finding that Sandoz could not prove a likelihood of success on the merits. The judgment of the district court will be affirmed.13
1
Demulcents have not been classified as inactive or active by the Food and Drug Administration, see 21 C.F.R. Sec. 341.14 (1988) (not including demulcents in an approved list of antitussives); 41 Fed.Reg. 38,354 (1976) (panel report listing demulcents in FDA category III, which covers ingredients for which "the available data are insufficient to classify" the ingredient, 21 C.F.R. Sec. 330.10(a)(5)(iii) (1988)), but Sandoz argues that they are clearly active ingredients insofar as Vicks claims that they make its product effective
2
Vicks's own testing would not be sufficient for approval of a new drug application under FDA regulations
3
Centrally acting antitussives and topically acting antitussives are the two categories of cough suppressants. Centrally acting antitussives depress the cough center of the central nervous system. They must be absorbed into the blood stream, which normally takes approximately thirty minutes, before they become effective. On the other hand, topically acting antitussives, such as demulcents, coat the cough receptors in the membranes lining the throat and respiratory passages, thus immediately shielding these receptors from external cough stimuli
4
Other cough medicines also contain demulcents, and Vicks has suggested that its competitors may be able to make "first swallow" claims as well--an invitation that Sandoz has declined
5
The FDA has expressed the opinion that it "does not consider induced cough studies [such as citric acid aerosol tests] alone as adequate to demonstrate the antitussive effectiveness of an ingredient." 54 Fed.Reg. 8494, 8498 (Feb. 28, 1989) (to be codified at 21 C.F.R. Sec. 341) (emphasis added). However, it has not explained what other forms of verification, if accompanying positive induced cough studies, would be sufficient to obtain FDA approval
To this point, Vicks has only completed induced cough studies on Pediatric 44. These tests employed healthy subjects whose coughs were artificially induced by the inhalation of citric acid aerosol. Of the five tests performed, each test showed a statistically significant reduction in coughs by the subjects after they received Pediatric 44 as compared to before they received any cough medicine. All but one of the tests, however, were statistically inconclusive regarding whether Pediatric 44 reduced coughs more effectively than Robitussin, a leading OTC children's cough medicine. At the preliminary injunction hearing, the parties produced a good deal of expert testimony regarding the accuracy of these results, with Vicks supporting and Sandoz attacking the tests employed.
We note that Vicks undertook, but eventually abandoned, two attempts to measure the effectiveness of Pediatric 44 utilizing "disease state" studies, i.e., studies using individuals actually suffering from upper respiratory infections or other cough-inducing illnesses. Disease state studies are considered more accurate measures of a drug's effectiveness because the drug is tested on subjects actually suffering from the symptoms the drug allegedly combats.
6
If a drug is marketed without prior FDA approval or without complying with a controlling final monograph, the United States may bring an enforcement action under the FD & C Act. Enforcement measures include seizure of the drug product, civil injunction against its sale, and criminal penalties against the violator. See 21 U.S.C. Secs. 332-34 (1982)
7
This case does not require us to address the question whether completely unsubstantiated advertising claims violate the Lanham Act absent proof that consumers are actually misled by this lack of substantiation. See Upjohn Co. v. Riahom Corp., 641 F.Supp. 1209, 1223 (D.Del.1986). In such a case, there is a plausible argument that the claim is literally false because the advertiser has absolutely no grounds for believing that its claim is true. A Lanham Act plaintiff may be permitted to presume that consumers expect advertisers to have at least some semblance of support for their publicly-disseminated claims. However, since that is not the question before us, we do not decide whether a completely unsubstantiated claim is per se false or whether a Lanham Act plaintiff can presume that a defendant must have some substantiation for its advertising claims
8
The FTC is not required to prosecute every potential false advertising claim it identifies or assert an inadequate substantiation argument in every prosecution it undertakes. Instead, in the exercise of its discretion, it can seek to enjoin advertisements as inadequately substantiated only in those cases where, in its judgment, such under-substantiation is misleading to those the FTC Act was intended to protect. Cf. Diver, supra, at 577 (noting that a statute's administering agency presumably has the sharpest "insight ... into the understanding of those affected [and protected] by the statute")
9
An ingredient is considered "active" if it "is intended to furnish ... direct effect in the ... mitigation [or] treatment ... of disease." 21 C.F.R. Sec. 210.3(b)(7) (1988)
10
Sandoz is free to petition the FDA to investigate these alleged labeling violations. See American Home Prods. Corp. v. Johnson & Johnson, 672 F.Supp. at 145. Sandoz represents that it has embarked upon this path already. The fact that it has been unable to get a quick response from the FDA, however, does not create a claim for Sandoz under the Lanham Act
11
In PPX Enters., Inc. v. Audio Fidelity Enters., 818 F.2d 266 (2d Cir.1987), the district court found that a record label falsely purported the record to contain performances by Jimi Hendrix. The Second Circuit held that this was actionable under the Lanham Act since "[a] record album's cover ... is one of the primary means of advertisement for a record album." Id. at 272. The court was not concerned with whether the record label met federal regulatory standards. Rather, it recognized that an important medium of advertising, a record's album cover, is not protected from the Lanham Act by the fact that it also can be described as a label
Potato Chip Inst. v. General Mills, Inc., 333 F.Supp. 173 (D.Neb.1971), aff'd, 461 F.2d 1088 (8th Cir.1972), also focused on the contents of a product's label as an advertisement to consumers. The defendant labeled a product as "Potato Chips" without also prominently noting that these chips were made from dried potato granules, not raw potatoes. There was strong proof presented to the district court that the phrase "potato chip" advertised to consumers that the chip was made from raw potatoes. See id. at 179-81. Hence, the unqualified package advertisement of the defendant's product as "potato chips" was held to be materially misleading advertising.
12
Cf. Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (noting the policy "to protect ... agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way")
13
In view of this result, it is unnecessary for us to reach the question whether Sandoz had shown irreparable harm in engaging in a balancing of the equities in accordance with preliminary injunction jurisprudence. See Hohe v. Casey 868 F.2d 69, 72 (3d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989); Lorentangeli v. Critelli, 853 F.2d 186, 196 (3d Cir.1988)
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Cite as 2017 Ark. App. 597
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-232
Opinion Delivered November 8, 2017
SEBASTIAN COUNTY SHERIFF’S APPEAL FROM THE ARKANSAS
DEPARTMENT AND AAC RISK WORKERS’ COMPENSATION
MANAGEMENT SERVICES COMMISSION
APPELLANTS [NO. G306938]
V.
VICTORIA HARRIS HARDY
APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
The Sebastian County Sheriff’s Department (Department) appeals the opinion of the
Arkansas Workers’ Compensation Commission (Commission) that affirmed and adopted
the opinion of the administrative law judge (ALJ) finding that Victoria Hardy is entitled to
benefits under Ark. Code Ann. § 11-9-505(a) (Repl. 2012). We affirm.
Hardy, an employee of the Department, sustained a compensable right knee injury
on 2 September 2012 and was awarded a twenty-percent impairment rating. She sustained
a second compensable injury to her right knee on 22 August 2013 and eventually underwent
a total knee replacement. In April 2016, the ALJ convened a hearing to determine, among
other things, Hardy’s entitlement to (1) a permanent impairment rating regarding her total
knee replacement, (2) additional medical treatment, and (3) benefits under Ark. Code Ann.
§ 11-9-505(a).
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Hardy testified to the following: In April 2015, she was taking the drug Lyrica for
nerve damage from the knee surgery, and due to her pain level, her dosage of Lyrica had
been doubled. Almost immediately after the dosage increase, she began stuttering. She
attempted to contact her treating physician, Dr. Heim, but she was unable to reach him,
and she eventually requested a change of physician and began seeing Dr. Hamby. At the
time of the hearing, she still had problems with pain in her knee, and while she was still
employed by the Department, she was on “medical catastrophic leave.” She was able to
return to work for a while after her knee replacement, but the stuttering rendered her unable
to perform as a law enforcement officer because she could not communicate quickly and
clearly. She asked to be considered for training to keep her training up-to-date, but that
had not happened. She described a couple of instances in April 2015 in which Captain
Miller, her supervisor, sent her home from work, and she had not worked since then. She
did not voluntarily stop working for the Department and “would go back today if [she]
could.”
On cross-examination, she quantified her present amount of stuttering as “a lot.”
She agreed that she had trouble communicating and said that there were no jobs currently
available at the Department that she could do. She said she had worked in the control room
after her knee replacement, but she was not doing that job now because she could not speak
on the radio and because she did not have an updated doctor’s release. She explained that
she had been seeing her family doctor for the stutter and that he had taken her off Lyrica,
put her on gabapentin, and was now weaning her off gabapentin. Drs. Heim and Hamby
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had recommended that she see a neurologist, and her family doctor, Dr. Kradel, had opined
that one of the side effects of Lyrica is unusual changes in mood or speech patterns.
On redirect, she explained that since the change in medication, her stuttering had
gotten better and she was better able to focus. But, she said, her knee pain was much worse.
Nevertheless, she thought that if the stuttering were taken care of, she could return to work.
She said the last doctor’s note she had releasing her to light-duty work was from January
2015. She stated that she had spoken to the Department a couple of weeks before the
hearing about returning to work and that the human-resources department was
“uncomfortable with the lack of an updated doctor’s advisement.” She was advised that she
needed a “newer doctor’s note than the one from over a year ago.” On recross, she
explained that she had not gotten a new doctor’s release because Dr. Hamby required certain
tests before he could make an assessment, and those tests had not been approved by workers’
compensation. At the conclusion of Hardy’s testimony, the ALJ noted on the record that
Hardy’s stutter was “significant.”
Captain John Miller, Hardy’s supervisor, testified that Hardy had returned to work
as a control-room operator after her total knee replacement and had no speech difficulties.
But, he said, there were a couple of occasions when her medication had caused her to have
trouble standing and formulating sentences, and her eyes had appeared bloodshot and
watery. He opined that Hardy was overmedicated and stated that he had sent her home
because he “was not comfortable having the safety of [his] deputies in somebody’s hands
that was basically not capable because of their medication to constantly be observing of all
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the cameras; to be able to concentrate on what she was doing.” He acknowledged that the
job was within the restrictions that her doctor had given her. Miller testified that if Hardy
returned to work, he would have a job for her.
On cross-examination, he confirmed that he could assign her to a sedentary duty that
did not have the level of responsibility of the control room. He later clarified that he could
do so “[w]ith the clearance of her doctor and HR [human resources].” He agreed that the
Department had the ability to accommodate Hardy but that it was up to the human-
resources department to “make the call as to whether or not they will actually let her go
back to work.”
In a July 2016 opinion, the ALJ found that Hardy was entitled to an additional
seventeen-percent impairment to her right knee, resulting in a thirty-seven-percent total
impairment. The ALJ also found that additional medical treatment by Dr. Hamby was
reasonable and necessary. Regarding Hardy’s entitlement to benefits under § 11-9-505(a),
the ALJ found:
After review of the medical records and releases to return to work, it
is clear that the claimant had been released by authorized treating physicians
to return to work in a sedentary position. The claimant does have a significant
stuttering problem which she alleges to be related to medications taken for
her compensable injury. However, that is not the subject of the current
hearing before the Commission. That alleged symptom of her compensable
injury does, however, affect her ability to perform employment services for
the respondent. However, given Captain Miller’s familiarity with the
claimant’s stuttering difficulty and physical state, he testified that the
respondent has work available for the claimant within the restrictions
provided by her physicians. The claimant has been unable to return to work
at least as of the date of the hearing in this matter due to the human resources
department for the respondents unwillingness to return her to work without
a more current letter or note from her doctor regarding her restrictions. It is
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unreasonable to this Administrative Law Judge to require a more recent off-
duty note when the claimant is certainly willing to return to work; her
supervisor indicates that a position is available within the restrictions that were
previously given and no doctor has changed those restrictions. As such, I find
the claimant is entitled to Arkansas Code Annotated § 11-9-505(a) benefits in
that the respondent has unreasonably refused to return the claimant to work
when, according to her supervisor, work is available within her restrictions.
The unreasonableness exists with the fact that the human resource department
believes a newer mandate of restrictions is required to return her to work.
The claimant has proven by a preponderance of the evidence that she is
entitled to A.C.A. § 11-9-505(a) benefits in this matter.
The Department appealed to the full Commission, and in a January 2017 opinion,
the Commission affirmed and adopted the ALJ’s opinion as its own. 1 One commissioner
dissented on the § 11-9-505(a) issue and found that Hardy had failed to prove that she was
entitled to those benefits. The Department has now timely appealed to this court.
We review the Commission’s decision in the light most favorable to its findings and
affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp.,
87 Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evidence is evidence that a
reasonable mind might accept as adequate to support a conclusion. Id. The issue is not
whether the appellate court might have reached a different result from the Commission, but
whether reasonable minds could reach the result found by the Commission: if so, the
appellate court must affirm. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d
391 (2007).
1
Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI,
Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes
the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id.
Therefore, for purposes of our review, we consider both the ALJ’s opinion and the
Commission’s majority opinion. Id.
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Arkansas Code Annotated section 11-9-505(a)(1) states:
Any employer who without reasonable cause refuses to return an employee
who is injured in the course of employment to work, where suitable
employment is available within the employee’s physical and mental
limitations, upon order of the Workers’ Compensation Commission, and in
addition to other benefits, shall be liable to pay to the employee the difference
between benefits received and the average weekly wages lost during the
period of the refusal, for a period not exceeding one (1) year.
Before Ark. Code Ann. § 11-9-505(a) applies, the employee must prove by a preponderance
of the evidence that (1) the employee sustained a compensable injury; (2) suitable
employment which is within the employee’s physical and mental limitations is available with
the employer; (3) the employer has refused to return the employee to work; and (4) the
employer’s refusal to return the employee to work is without reasonable cause. Clayton
Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002).
The Department argues that Hardy does not qualify for benefits under this four-part
test because “[t]he employer did not refuse to return Appellee to work, she was unable to
perform the job for reasons that have not been shown to be related to her compensable
injury.” The Department also asserts that it acted reasonably in “keeping the Appellee off
work while she tried to get her stuttering and medication problems resolved.” In support,
the Department relies on Hardy’s own testimony that the problems with her medication
have not been resolved, that she still has difficulty communicating, and that there were no
jobs currently available at the Department that she could perform. It alleges that the ALJ
and the Commission arbitrarily disregarded this testimony and “focused only on the
restrictions regarding the knee and ignored the intoxication.”
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In response, Hardy notes Miller’s testimony that the Department could accommodate
her restrictions and argues that this testimony should not be ignored just because Hardy
could not identify a particular job at the Department that met her restrictions. She asserts
that the Department presented no testimony to refute Miller’s testimony and that there was
no evidence that the intoxication issue that existed in April 2015 was still present at the time
of the hearing. She contends that the Department had the burden of showing that it had
reasonable cause for refusing to return her to work and that it failed to meet that burden in
light of Miller’s testimony that there was work available.
In its opinion, the ALJ found that Hardy had been released to work with restrictions,
that Miller had stated that jobs were available within those restrictions, and that the
Department was unreasonable in requiring an updated doctor’s release to work. The
Department fails to challenge that finding on appeal and instead argues that it acted
reasonably in releasing Hardy from work in April 2015 due to complications from her
medication. The Department asks us to assign more weight to Hardy’s testimony, while
Hardy places more emphasis on Miller’s testimony. But it is within the Commission’s
province to determine credibility, weigh the evidence, and resolve conflicts in medical
testimony and evidence. Godwin v. Garland Cty. Landfill, 2016 Ark. App. 498, 504 S.W.3d
660. The Commission is not required to believe the testimony of any witness but may
accept and translate into findings of fact only those portions of the testimony it deems
worthy of belief. Sandeford v. United Parcel Serv., Inc., 2014 Ark. App. 228. It is not the role
of the appellate court to weigh the evidence and judge the credibility of the witnesses. Id.
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In this case, the Commission clearly found Miller’s testimony to be credible. Thus,
we hold that the Commission’s decision to award benefits pursuant to § 11-9-505(a) is
supported by substantial evidence and affirm.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
Jason M. Ryburn, for appellants.
Walker, Shock & Harp, PLLC, by: Eddie H. Walker, Jr., for appellee.
8
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6428
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCEL RANSOM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Catherine C. Blake, District Judge. (CR-
99-250-CCB, CA-01-3401-CCB)
Submitted: July 2, 2003 Decided: July 23, 2003
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Marcel Ransom, Appellant Pro Se. James Marton Trusty, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marcel Ransom seeks to appeal the district court’s order
denying his 28 U.S.C. § 2255 (2000) motion. An appeal may not be
taken from the final order in a motion under § 2255 unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not
issue for claims addressed by a district court on the merits absent
“a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2000). We have independently reviewed the
record and conclude Ransom has not made the requisite showing.*
See Miller-El v. Cockrell, 537 U.S. 322 (2003). Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
*
To the extent Ransom seeks to raise for the first time on
appeal issues not properly presented to the district court, we find
they are waived. See Muth v. United States, 1 F.3d 246, 250 (4th
Cir. 1993) (holding claims raised for first time on appeal will not
be considered absent exceptional circumstances).
2
|
68 So.3d 994 (2011)
Rene VALDES, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D11-1252.
District Court of Appeal of Florida, Third District.
September 7, 2011.
Rene Valdes, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before RAMIREZ, SUAREZ, and SALTER, JJ.
SUAREZ, J.
This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record, shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).
Valdes claims that he was not advised by the trial court of the deportation consequences *995 of his plea. The trial court's order denying relief failed to address this claim. Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts[1] conclusively showing that the appellant is not entitled to any relief.
Reversed and remanded for further proceedings.
NOTES
[1] The plea colloquy, for example.
|
983 F.2d 1052
Russo (David M.), Johnson (Lloyd)v.Beyer (Howard L.)
NO. 92-5478
United States Court of Appeals,Third Circuit.
Dec 29, 1992
Appeal From: D.N.J.,
Thompson, J.
1
AFFIRMED.
|
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50328
Summary Calendar
JAIME VASQUEZ,
Petitioner-Appellant,
versus
R. D. MILES, Warden, Federal Correctional Institution, Bastrop,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-728-JN
--------------------
October 29, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jaime Vasquez, federal prisoner # 64305-080, appeals the
denial of his petition styled habeas corpus, requesting his
transfer to a minimum-security prison camp. Vasquez also
requests this court to order the Bureau of Prisons to remove
allegedly incorrect information from his central file, and
monetary damages. We AFFIRM.
The Bureau of Prisons did not abuse its discretion by
refusing to transfer Vasquez to a prison camp, because its
*
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. 02-50328
-2-
decision is supported by irrefutable facts. See Whitley v. Hunt,
158 F.3d 882, 889 (5th Cir. 1998).
Vasquez requests this court to order the Bureau of Prisons
to correct his central file, to show that he has a minimum-
custody classification, on authority of the Freedom of
Information Act (FOIA), 5 U.S.C. § 552a. Vasquez’s reliance on
exhibits he filed with his habeas corpus petition is misplaced,
because they do not show that he is entitled to minimum custody.
See Fendler v. United States Bureau of Prisons, 846 F.2d 550, 554
(9th Cir. 1988). Finally, Vasquez is not entitled to monetary
damages under the FOIA. Id.
AFFIRMED.
|
Honorable F. B.&oyd, Jr. Opinion No. M-69
District Attorney
79th Judicial District Re: Whether Starr County can
P. 0. Box 965 legally pay for telephone
Alice, Texas 78332 services used by the U. S.
Tick Inspector, who is
Dear Mr. Floyd: stationed in Starr County.
Your letter of April 14, 1967, requesting the opinion
of this office on the above-stated question, reads, in part, as
follows :
"Starr County, Texas owns and provides cattle
dipping vats for tick eradication in the County.
The United States Government has stationed a tick
inspector there in the County. In the past the
County has furnished and paid for telephone serv-
Lee for the federal tick inspector. An objection
has been made to the payment of the bills for the
telephone service by the County.
"Please return a formal opinion as to whether
or not Starr County, Texas can legally pay for
telephone services used by the U. S. Tick Inspector
stationed in Starr County, Texas."
Title 17, (Articles 1525a, 1525b, 1525~~ 1525a, 1525e,
1525f and 1525g), Vernon's Penal Code, pertains to the eradication,
treatment, etc.. of contagious, infectious and communicable dis-
eases of livestock, domestic animals and domestic fowls in this
State. The above-mentioned statutes authorize the Texas Animal
Health Commission and the commissioners' courts of the various
counties to perform certain duties as are imposed upon them by
such statutes and further impowers the commissioners' courts to
expend county funds for the various purposes therein enumerated.
- 317 -
Hon. F. B. page 2 (M-69)
The courts of Texas have repeatedly held that county
commissioners' courts may exercise only such authority as is
conferred upon them by the Constitution and statutes of this
State, either by express terms or by implication. Tex. Const.,
Art. V, Sec. 18: Bland v. Crr, 90 Tex. 492, 39 S.W. 558 (1897):
Rooer v. Hall, 280 S.W. 289 (Tex.Civ.App. 1925); Landman v.
State, 97 S.W.2d 264 (Tex.Civ.App. 1936, error ref.); El Paso
Countv v. Elam, 106 S.W.2d 393 (Tex.Civ,App. 1937); Hill v.
Sterrett, 252 S.W.2d 766 (Tex.C!iv.App.1952, error ref., n.r.e.).
After a careful study of the Constitution and statutes
of this State, we find no provision authorizing the commissioners'
court to pay out of county funds for telephone services used by
a U. S. Tick Inspector stationed within the county.
Both Section 5 and Section 6 of Article 1525c, Vernon's
Penal code (the Tick Eradication Law), make reference only to
local inspectors nominated by the commissioners' court and appointed
and directed by the Texas Animal Health Commission.
In view of the foregoing, it is the opinion of this of-
fice that the county commissioners' court is not authorized to pay
the telephone bill for the U. S, Tick Inspector stationed within
_
the county.
SUMMARY
The county commissioners' court is not
authorized to pay the telephone bill for the
U. S. Tick Inspector stationed within the
county.
Yofls very truly,
ORB C. MARTIN
orney General of Texas
Prepared by Alan Minter
Assistant Attorney General
- 318 -
Hon. F. B. page 3 W-69)
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Pat Bailey
Terry Goodman
Monroe Clayton
Ralph Rash
STAFF MGAL ASSISTANT
A. J. CARVBBI, JR,
- 319 ”
|
614 S.E.2d 108 (2005)
273 Ga. App. 124
DEPARTMENT OF TRANSPORTATION
v.
OGBURN HARDWARE & SUPPLY, INC. et al.
No. A05A0567.
Court of Appeals of Georgia.
April 11, 2005.
Reconsideration Denied April 29, 2005.
Wilson R. Smith, Smith and Jenkins, Vidalia, Anne W. Sapp, Atlanta, Thurbert E. Baker, Attorney General, for appellant.
*109 Charles L. Ruffin, Carl R. Varnedoe, Gambrell & Stolz, Macon, for appellees.
BLACKBURN, Presiding Judge.
In this inverse condemnation case, the Department of Transportation appeals a judgment entered on a jury verdict in favor of Mr. Bonnie Ogburn and his company (Ogburn Hardware & Supply, Inc.), arguing that the court erred in denying a directed verdict and in admitting certain expert testimony. As some evidence supported the verdict, the trial court did not err in denying a directed verdict. Neither did it abuse its discretion in admitting the disputed testimony. Accordingly, we affirm.
Construed in favor of the verdict, the evidence shows that Ogburn owned certain land, which he leased to his company to operate a hardware store. In front of the hardware store was room for ten parking spaces. DOT decided to widen the road in front of the hardware store and to place a curb and gutter there. This reduced the number of parking spaces from ten to two, adversely impacting Ogburn's business. A second entrance was also impeded. DOT claimed that the widening took place within its currently existing right-of-way, whereas Ogburn contended that the widening encroached on his property.
Ogburn and his company sued DOT for inverse condemnation, seeking damages for encroachment and consequential damages. At trial, Ogburn called a surveyor, who over DOT's objection testified that based on his review of the relevant plats and deed boundary descriptions as well as permanent markers, the road widening encroached on 1,277 square feet of Ogburn's property. An expert appraiser testified that the value of the land taken was $2,916 and that the difference between the value of the remaining land before the taking and the value of the remaining land after the taking was $198,234. Ogburn testified to the loss of business caused by the taking. The court denied DOT's motion for directed verdict. The jury awarded Ogburn and his company $380,535 as follows: $2,900 for encroachment; $160,258 for consequential damages; $34,000 for loss of business; and attorney fees and expenses of $183,377. The court denied DOT's motions for new trial and for judgment notwithstanding the verdict. DOT appeals.
1. DOT first argues that the court erred in denying its motion for directed verdict. DOT claims that the testimony of Ogburn's expert appraiser regarding consequential damages was legally insufficient to establish the proper measure of damages. "In reviewing the denial of a motion for directed verdict, this Court must determine whether there is any evidence to support the jury's verdict." Dept. of Transp. v. Edwards.[1]
Dept. of Transp. v. Gunnels[2] sets forth the procedure to determine damages in an inverse condemnation action for a partial taking.
There are two elements of just and adequate compensation for a partial taking of property by condemnation: (1) the market value of the portion actually taken; and (2) the consequential damage, if any, to the remainder. In order to determine the total damages, a jury is required to follow a five-step procedure: (1) determine the fair market value of the entire tract of property before any part is taken; (2) the value of the partial portion taken considered as a part of the whole tract; (3) the value of the remaining tract but just before the taking; i.e., the value of the remainder as a part of the whole by subtracting the value of a part taken from the value of the entire property; (4) the market value of the remainder just after the taking, considering the negative impact of the separation of the part from the whole; and (5) the positive impact of the taking of the part upon the value of the remainder just after the taking.
*110 Id. at 632(1). "Consequential damages in a partial taking of property are shown by the difference between the fair market value of the remaining property prior to the taking and the fair market value of the remaining property after the taking." (Punctuation omitted.) Dept. of Transp. v. Bacon Farms, L.P.[3] See Dept. of Transp. v. Gunnels[4] ("[t]he proper measure of consequential damages to the remainder property not taken is the diminution, if any, in the market value of the remainder in its circumstances just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking") (punctuation omitted).
Here, Ogburn's expert appraiser testified that based on a market analysis and comparable sales, the value of the entire tract of land prior to the taking was $365,000. The portion of the land taken was worth $2,916, leaving the remaining land not taken as worth $362,084 just prior to the time of taking. The appraiser then considered the cost to cure the lack of parking spaces and access caused by the taking, a more recent comparable sale, and "the loss of parking, access, ingress, all of that he had before that he doesn't have in the after." No positive impact was shown. Based on these considerations, the appraiser valued the remainder after the taking at $163,850. The difference between the value of the remainder prior to the taking ($362,084) and the value after the taking ($163,850) was $198,234, which constituted the consequential damages.
DOT claims this testimony is faulty in that the consequential damages of $198,234 were the same as the cost to cure estimate of $198,234. DOT claims that the appraiser therefore simply substituted the cost to cure for the consequential damages, which DOT argues was improper under Dept. of Transp. v. Morris.[5] DOT misinterprets Morris, however, which specifically held that evidence of damage to the property as a result of the taking (represented by a cost to cure) "may be considered a factor in establishing the reduced fair market value of the remaining property after the taking." Id. at 608(1), 588 S.E.2d 773. The problem in Morris, which is not present in the case at bar, is that the appraiser "did not give any testimony establishing the fair market value of the remaining property after the taking [but] stated only that he found $31,000 in consequential damages based on evidence of damage to the fence caused by the taking." Id. at 607(1), 588 S.E.2d 773. Moreover, the appraiser in Morris insisted on valuing the residential property at issue as if it were commercial property and refused, in calculating fair market value figures, to assign any value to the improvements on the remaining property (such as the fence); "[i]t follows that the expert appraiser's opinion that consequential damages flowed from a reduction in fair market value caused by the cost of rebuilding the fence was without foundation or probative value." Id. at 609(1), 588 S.E.2d 773.
In the present case, the appraiser used the cost to cure as an important factor in reaching his conclusion as to the value of the remainder after the taking and thus in determining the consequential damages. See Dept. of Transp. v. 2.953 Acres of Land[6] ("[i]n a partial taking case, evidence as to the cost to cure may be admissible as a factor to be considered in determining the amount of recoverable consequential damages to the remainder") (punctuation omitted). No Georgia jurisprudence holds that the fact that the consequential damages end up being equal to the cost to cure is fatally defective to an appraiser's testimony; indeed, because the cost to cure is an important, allowable factor in determining the value of the remainder, such a result is hardly surprising. See Benton v. Chatham County[7] ("[n]othing in either of the Gunnels decisions ... mandates that an expert arrive at his property appraisal *111 only by means of one inflexible procedural process"). Cf. Dept. of Transp. v. Mendel[8] ("[t]he expert was not required to make an adjustment for comparables in the `after' portion of his analysis. `Testimony of an expert can be considered even though he did not base his opinion entirely on comparable transactions.'").
Accordingly, the appraiser's testimony here was legally sufficient to show the consequential damages. The trial court did not err in denying DOT's motion for directed verdict.
2. In its second enumeration, DOT contends that the trial court erred in admitting the testimony of a surveyor who reviewed the relevant plats, deed boundary descriptions, and permanent makers in concluding that DOT's widening of the road encroached on Ogburn's land. DOT claims that this testimony was speculative guesswork. "In reviewing this enumeration of error, we note at the outset that admissibility of evidence is a matter which rests largely within the sound discretion of the trial court." (Punctuation omitted.) 2.953 Acres of Land, supra at 47(1), 463 S.E.2d 912.
Ogburn's surveyor, who for many years has served as a surveyor for numerous counties (including the county in which Ogburn's property is located), testified that he reviewed the following in reaching his opinion about the encroachment. He studied 65 old and current plats, plans, and deeds; he conducted extensive field work, reviewing the markers found in the interior of the property at issue and the placement of the DOT right-of-way markers; he surveyed the property using various accepted measurements and standardized procedures; he calculated and reconciled angles, determining that the DOT's own description of its right-of-way would result in the right-of-way being in the middle of currently existing buildings, including the courthouse; he considered various other inconsistencies in the DOT's description of its right-of-way; and he used a nationally recognized and oft-utilized computer software program to analyze and reconcile deed boundaries. Based on a careful review of these factors, he used his experience as a surveyor and followed well-recognized techniques in the field (and in this particular county) to determine the actual boundary lines of Ogburn's property and of the DOT's right-of-way, which determination showed a right-of-way that did not impinge on any currently existing buildings and also showed that DOT had taken 1,277 square feet of Ogburn's property when DOT widened the road.
Both pretrial and at trial, DOT sought to exclude this surveyor's testimony, arguing it was speculative since it did not consider as its primary determinative factor the actual placement of the road at issue. The court conducted an extensive pretrial hearing and determined the testimony was admissible. The court reiterated its decision during and after the surveyor's testimony at trial. In light of the extensive basis for the surveyor's testimony, his careful and detailed work, his explanation of discrepancies, and his description of his methodology and its acceptance in his field, we can discern no abuse of discretion in the trial court's decision to admit the testimony. This enumeration fails.
Judgment affirmed.
MILLER and ADAMS, JJ., concur.
BERNES, J., disqualified.
NOTES
[1] Dept. of Transp. v. Edwards, 267 Ga. 733, 734-735(1), 482 S.E.2d 260 (1997).
[2] Dept. of Transp. v. Gunnels, 175 Ga.App. 632, 334 S.E.2d 197 (1985), rev'd on other grounds, 255 Ga. 495, 340 S.E.2d 12 (1986).
[3] Dept. of Transp. v. Bacon Farms, L.P., 270 Ga.App. 862, 866(2), 608 S.E.2d 305 (2004).
[4] Dept. of Transp. v. Gunnels, supra, 255 Ga. at 496-497(1), 340 S.E.2d 12 (1986).
[5] Dept. of Transp. v. Morris, 263 Ga.App. 606, 588 S.E.2d 773 (2003).
[6] Dept. of Transp. v. 2.953 Acres of Land, 219 Ga.App. 45, 47(1), 463 S.E.2d 912 (1995).
[7] Benton v. Chatham County, 206 Ga.App. 285, 289(4)(b), 425 S.E.2d 317 (1992) (physical precedent only).
[8] Dept. of Transp. v. Mendel, 237 Ga.App. 900, 903(3)(a), 517 S.E.2d 365 (1999).
|
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1167
CA 15-00386
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.
JAMES SPACHT AND MELODY SPACHT,
PLAINTIFFS-APPELLANTS,
V MEMORANDUM AND ORDER
COUNTY OF CHAUTAUQUA, DEFENDANT-RESPONDENT.
GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (HARRY J. FORREST OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Chautauqua County
(John T. Ward, A.J.), entered October 2, 2014. The order granted the
motion of defendant for summary judgment and dismissed the complaint.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
and the complaint is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by James Spacht (plaintiff) when he slipped and
fell on snow and ice in a parking lot located on property owned by
defendant. Defendant leased the premises to plaintiffs, who operated
a bakery and café there. We agree with plaintiffs that Supreme Court
erred in granting defendant’s motion for summary judgment dismissing
the complaint. Defendant contended in support of its motion that it
had no duty to maintain the property where plaintiff fell, but
defendant failed to meet its initial burden with respect to that
contention (see generally Zuckerman v City of New York, 49 NY2d 557,
562). Here, the provisions of the lease specifically required
defendant to “provide snow plowing and shoveling services for
[plaintiffs], to be completed by 8:00 a.m. Monday through Friday, and
as needed on weekends” (see Santerre v Golub Corp., 11 AD3d 945, 946;
see also Coyle v Gerritsen Ave. Shopping Ctr., 176 AD2d 232, 232).
Defendant also contended in support of its motion that its failure to
clear snow from the premises was not a proximate cause of plaintiff’s
fall, but defendant failed to meet its initial burden with respect to
that contention as well, inasmuch as “conclusory [and speculative]
assertions are insufficient to demonstrate the absence of any material
issues of fact” (Ayotte v Gervasio, 81 NY2d 1062, 1063; see Jeune v
O.T. Trans Mix Corp., 29 AD3d 635, 636). Here, there is no dispute
that defendant failed to clear any snow from the premises on the date
-2- 1167
CA 15-00386
of the accident and, in its moving papers, defendant relies on pure
speculation to conclude that it would not have been able to clear snow
in between vehicles in the parking lot where plaintiff fell. Finally,
we note that defendant improperly contended for the first time in its
reply papers that it did not create the alleged dangerous condition or
have actual or constructive notice of it, and those contentions
therefore were not properly before the court (see Azzopardi v American
Blower Corp., 192 AD2d 453, 454; see also DiPizio v DiPizio, 81 AD3d
1369, 1370).
Entered: November 20, 2015 Frances E. Cafarell
Clerk of the Court
|
751 F.2d 375
Chevez-Vigil (Saul)v.Immigration and Naturalization Service
NO. 84-3392
United States Court of Appeals,THIRD CIRCUIT.
NOV 09, 1984
1
Appeal From: B.I.A.
2
PETITION FOR REVIEW DISMISSED.
|
558 A.2d 1112 (1989)
Tracy Lee DEW, Appellant,
v.
UNITED STATES, Appellee.
Raymond ROSS, Appellant,
v.
UNITED STATES, Appellee.
Nos. 84-1580, 84-1584.
District of Columbia Court of Appeals.
Argued July 5, 1988.
Decided May 3, 1989.
*1113 Charles E. Chisholm, appointed by the court, for appellant Dew.
Calvin Steinmetz, Washington, D.C., appointed by the court, for appellant Ross.
Sharon M. Collins, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.
Before ROGERS, Chief Judge,[*] FERREN, Associate Judge, and Pryor,[**] Senior Judge.
FERREN, Associate Judge:
A jury convicted appellants, Tracy Lee Dew and Raymond Ross, of one count of armed robbery, D.C.Code §§ 22-2901, -3202 (1981 & 1988 Supp.). They appeal their convictions on separate grounds. Ross contends the trial court violated his sixth amendment right to counsel by admitting into evidence a statement he made during postindictment questioning in the absence of an attorney who had previously been appointed to represent him. Dew primarily contends that under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), his conviction must be reversed because the trial court's admission of an extrajudicial statement of his codefendant, Ross, who did not testify, materially prejudiced his case. We agree that if Ross was represented by appointed counsel at the time of the questioning, a fact unresolved in the record, his Sixth Amendment rights were violated. We decline to remand, however, because we conclude that any error in the admission of Ross's statement was beyond a reasonable doubt. We reject Dew's argument. Accordingly, we affirm.
I.
At approximately 10:00 p.m. on November 29, 1983, Peter Webber, an investigator for criminal defense attorneys, drove to the 5600 block of Central Avenue, S.E., in order to investigate a recent robbery and homicide. After completing his work, Webber entered his car and prepared to leave. He noticed two men approaching the passenger side of his car. They bent down and peered into the car, saying something *1114 that Webber could not understand. Webber then decided to get out of the car. That decision proved unwise, for the men then grabbed him, struck him on the back of the head, and, holding a knife to his neck, dragged him several yards to a walkway off the street where they pushed him to the ground. As Webber fell, he noticed one of the men holding a shotgun. Webber then complied with a command to empty his pockets. As he lay on the ground, one of the men, later identified as appellant Dew, stood over him with a shotgun, and the second man kicked him in the head. At some point, one of the men yelled "get that light," and Webber sensed that one of his assailants had left. When that person returned, Dew ordered Webber to get up. As Webber rose to his knees, Ronald and James Thomas appeared in the walkway. Ronald saw Dew standing over Webber with a knife, and James witnessed a man, later identified as appellant Ross, "standing a few feet away acting like a watch-out boy." Although the Thomas brothers approached within three to four yards of appellants and Webber, they left after Dew suggested they move on.
One of the men then grabbed Webber from behind and began shoving him towards a couch located where the walkway intersected an alleyway. Webber, however, managed to flee and, with Dew giving chase, ran to a nearby carryout where the police and an ambulance were called. Meanwhile, after witnessing the events, the Thomas brothers had stopped by the home of two sisters, Joanne Begal and Terri Little. Ronald told the sisters what had happened. When the sisters heard the ambulance arrive, they entered the walkway and saw Dew standing near the couch and a second man standing behind a trash can. The sisters then proceeded to the carryout where they saw Webber sitting in an ambulance speaking with the police.
Eventually, Sergeant Charles Bailey arrived on the scene and took a report from Webber. After learning from Webber that someone in a house adjacent to the walkway might have witnessed the robbery because a light was on in the house for a time during the incident, Bailey and another officer went to the home and learned from Demetrius Lawry that one of Webber's assailants was Dew. The police then discovered that Dew lived around the corner and called for backup. At approximately 11:40 p.m., as the officers waited, Dew and Ross strode by. The officers asked the two to identify themselves, and, when Dew did so, he was arrested. Ross, after resisting a pat-down search, was arrested for disorderly conduct.
Ross was taken to the robbery branch of the police department where he gave a statement denying any involvement in the armed robbery. After paying a $10 fine for disorderly conduct, he was released. In December 1983, however, Ross was subpoenaed to appear before the grand jury. At the grand jury proceedings, Ross was informed by Detective Stowe that he was entitled to an attorney, and one was provided for him. In addition, Ross appeared in a lineup on December 24, 1983, and was again assisted by an attorney. At the line-up, Webber was unable to identify either appellant, but Little, Lawry, and Begal identified Dew. A month later, the Thomas brothers were shown a photo array and identified Dew. The brothers also selected the photograph of Ross.
On February 15, 1984, the government filed an indictment charging both appellants with the November 29, 1983, robbery of Webber.[1] On February 21, 1984, the court appointed still another attorney to represent Ross. On March 7, 1984, after Ross failed to appear for arraignment, a bench warrant was issued for his arrest. On April 3, 1984, Ross was arrested pursuant to the grand jury indictment for armed robbery. After Detective Stowe advised him of his Miranda[2] rights, Ross gave a statement in which he admitted being present at the scene of the crime.
*1115 II.
A.
Ross argues that his sixth amendment right to counsel was violated by the admission into evidence of statements Ross made during postindictment questioning on April 3, 1984, when an attorney who had been appointed on February 21, 1984, to represent him was not present. At the time Ross made the statements, he had been advised of his Miranda rights and had waived them.
Three years ago, the Supreme Court imposed a sixth amendment limitation on police questioning when an accused, who does not have a lawyer, has invoked the right to counsel. The Court ruled that, "[j]ust as written waivers are insufficient to justify police-initiated interrogations after request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis." Michigan v. Jackson, 475 U.S. 625, 635, 106 S.Ct. 1404, 1410, 89 L.Ed.2d 631 (1986). Respondent Jackson had explicitly requested appointment of counsel, thereby expressing a desire to rely on counsel's advice before deciding to speak with the police. Jackson's ban on police-initiated interrogation, therefore, was based not on the mere existence of the right to counsel but on the accused's actual invocation of that right.
Two years later, the Supreme Court developed this distinction in Patterson v. Illinois, ___ U.S. ___, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), another case in which the accused did not have a lawyer but, in contrast with Jackson, did not request one. The Court held that the accused's sixth amendment right to counsel, as such, did not bar the police from initiating a meeting with the accused, obtaining a waiver of that right, and questioning him. The Court rejected Patterson's claim that, because his sixth amendment right to counsel arose with his indictment, he in effect had made a request to deal with the police only through counsel, precluding the police from initiating interrogation after indictment except through defense counsel. Id. 108 S.Ct. at 2394. The Court distinguished Jackson, noting that Patterson had "at no time sought to exercise his right to have counsel present." Id. The Court further held that "an accused who is admonished with the warnings prescribed by this Court in Miranda, has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one." Patterson, 108 S.Ct. at 2396-97 (citation omitted).
The Court in Patterson was careful to note "as a matter of some significance" that the accused "had not retained, or accepted by appointment, a lawyer to represent him at the time he was questioned by authorities," and that "[o]nce an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect." 108 S.Ct. at 2393 n. 3 (citing Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985)).
In Moulton, unlike Patterson and Jackson, the accused did have a lawyer. He appeared with counsel to enter pleas of not guilty, and was subsequently represented by counsel in "numerous proceedings ... during the ensuing year and a half." Moulton, 474 U.S. at 162, 106 S.Ct. at 480. While Moulton was represented by counsel, but without notifying counsel, the police wired a cooperative co-defendant with a listening device. They overheard Moulton make inculpatory statements when he met privately with the co-defendant. The Supreme Court held that the state had violated Moulton's sixth amendment right to counsel:
Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance.
* * * * * *
*1116 The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a "medium" between him and the State. As noted above, this guarantee includes the State's affirmative obligation not to act in a manner that circumvents the protections accorded the accusee by invoking this right.... [K]nowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.
Moulton, 474 U.S. at 170-71, 176, 106 S.Ct. at 484-85, 487 (footnotes omitted). See also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (incriminating statements of accused deliberately elicited by government agents through inmate confined in same cellblock, in absence of defense attorney, violated sixth amendment right to counsel); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (incriminating statements deliberately elicited by federal agents through concealed radio transmitter from accused on bail, in absence of his attorney, violated sixth amendment right to counsel).
The question, then, is whether Moulton, as endorsed in Patterson, 108 S.Ct. at 2393 n. 3, stands for the proposition that once counsel has been "accepted by appointment" in a criminal case, id., the sixth amendment bars police-initiated interrogation of the accused except through arrangement with defense counsel. More specifically, does appointment of counsel as such equal the "request for counsel" required of an unrepresented suspect, Jackson, 475 U.S. at 635, 106 S.Ct. at 1410, before the sixth amendment acts to bar police-initiated interrogation? We believe the answer appears to be yes. Given the Supreme Court's express limitation of its holding in Patterson to unrepresented defendants, 108 S.Ct. at 2393 n. 3, coupled with the Court's consistent precedent barring deliberate police efforts to elicit incriminatory statements in the absence of counsel when the suspect is represented, see Moulton, supra; Henry, supra; Massiah, supra, we see little, if any, room for an argument that the Supreme Court would permit a police-initiated request for a post-indictment waiver of counsel by a represented defendant, except through defense counsel.[3]
In the present case, because of peculiar facts, it is not clear whether Ross was represented by appointed counsel at the time he made his inculpatory statement to the police.[4] The trial court made no definitive finding about the nature of Ross's relationship with counsel, if any, before or during Ross's postindictment interrogation. The court merely said that it was "questionable" whether a relationship between *1117 Ross and appointed counsel "existed or had been formalized" at the time Ross gave his April 3 statement to Detective Stowe.
The record shows that Ross was indicted by grand jury original for armed robbery and unauthorized use of a vehicle on February 15, 1984. Six days later, on February 21, the trial judge appointed attorney Kathryn Paull Brown to represent him. Thereafter, according to a trial court finding, "Ms. Brown sent some letters [to Ross].... We don't know whether actually they had been received. We know they had not been returned. There had been no conversation between Mr. Ross and her at that point." Ross failed to appear at his arraignment on March 7, and, on March 10, a bench warrant was issued for his arrest. Ross was arrested on April 3, after which he gave his statement.
Ross was arraigned on April 5. The court appointed Mary Lou Soller of the Public Defender Service (PDS) to represent him; Soller entered her appearance on April 5. On April 16, Soller filed a motion for leave to withdraw because of a conflict of interest, having learned that the complaining witness was a PDS employee. In her motion, Soller represented:
Ms. Kath[ryn] Paul[l] Brown had originally been appointed by the Court to represent Mr. Ross. She had never met Mr. Ross because this case was a grand jury original, however. Thus, her appointment was terminated at the arraignment. She has indicated that she would be willing to accept a re-appointment in this case, if the Court deems it appropriate.
On April 24, 1984, the court granted Soller's motion and appointed Brown to represent Ross.
The trial court did not resolve whether, as Soller had suggested, Brown's February 21 appointment to represent Ross had "terminated at the arraignment" on March 7 when Ross had failed to appear. By referring to Brown's letters to Ross and merely calling it "questionable" whether Brown's relationship with Ross "existed or had been formalized," the court appeared to allow for the possibility that Brown had remained as Ross's counsel absent a court order relieving her of that responsibility until Soller was appointed on April 5. Indeed, the court in effect assumed Ross was represented by counsel, for the court expressed a concern that the police may have deliberately elicited Ross's statements in violation of his sixth amendment rights, citing Massiah, supra. But, in analyzing the Massiah issue the trial court focused not on the existence of a lawyer-client relationship but exclusively on Detective Stowe's knowledge of such a relationship. The court inquired as to whether Stowe, who had obtained counsel (not attorney Brown) for Ross at the grand jury sometime in December 1983, was testifying truthfully in saying he did not believe Ross was represented by counsel on April 3, 1984, when Stowe read Ross his Miranda rights, obtained his waiver of the right to counsel, and received the statement at issue. The trial court found that Stowe
did not know and would not have known and should not have necessarily ... known that in this original indictment situation, Mr. Ross had an attorney. I don't believe there was ... any intentional infringement by Sgt. Stowe in that relation because he didn't know about it.
For this reason, the court denied Ross's motion to suppress the statement.
Detective Stowe's knowledge, however, cannot be determinative here. For fifth amendment purposes, the fact that an interrogating police officer did not know a suspect had requested counsel when he was arrested is of "no significance." Arizona v. Roberson, ___ U.S. ___, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704 (1988). The suspect's right to counsel will still be protected under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because "an officer who proposes to initiate an interrogation" is obliged "to determine whether the suspect has previously requested counsel." Roberson, 108 S.Ct. at 2101. No reason readily appears as to why the same rule should not apply in the sixth amendment context; Michigan v. Jackson, supra, makes clear that the Supreme Court virtually *1118 equates fifth and sixth amendment analyses for protecting the right to counsel for police-initiated questioning. If Ross had requested or received appointed counsel, therefore, Detective Stowe must be deemed to have known about it.
Accordingly, the critical question remains unresolved on this record: was Ross represented by attorney Brown within the meaning of Patterson, Moulton, Henry, and Massiah at the time he gave his April 3 statement to the police? If so, the statement should have been suppressed. Or, did Brown's appointment somehow expire, at least for purposes of the sixth amendment issue in this case, once Ross failed to appear for arraignment on March 7, leaving him unrepresented until his April 5 arraignment two days after he gave his inculpatory statement? In this latter case, absent a request for counsel, see supra note 4, Ross could be found to have waived his right to counsel for purposes of giving the statement. See Patterson, 108 S.Ct. at 2394, 2396-97.
Ordinarily, we would remand the record for a hearing on this issue. See McClinnahan v. United States, 454 A.2d 1340, 1354 (D.C.1982) (Ferren, J., dissenting). On this record, however, any error in admitting Ross's statement was harmless beyond a reasonable doubt. See Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705 (1967). The Thomas brothers both identified Ross and Dew in photo arrays and James Thomas, who knew Ross from the neighborhood, recognized Ross and identified him as the lookout. Their testimony about the events surrounding the crime was fully corroborated by the testimony of the government's other witnesses even though Webber was unable to identify his attackers. The April 3 statement admitting Ross's presence at the scene was simply cumulative evidence, cf. Derrington v. United States, 488 A.2d 1314 (D.C.1985) (statement elicited in violation of fifth amendment right to counsel), and Ross was not constitutionally prejudiced by its admission.
B.
Ross further argues that the trial court erred in declining to grant his motion for judgment of acquittal on the robbery count because the government's evidence established only his presence at the scene of the crime and failed to demonstrate his involvement. "Cases involving the sufficiency of the government's evidence are to be viewed in the light most favorable to the government, `giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact....'" McEachin v. United States, 432 A.2d 1212, 1218 (D.C.1981) (citation omitted). On appeal, we "do not distinguish between direct and circumstantial evidence," and reversal is required "only where the government has produced no evidence from which a reasonable mind might infer guilt beyond a reasonable doubt." Watson v. United States, 501 A.2d 791, 792 (D.C.1985) (citations omitted).
At trial, the government sought to obtain Ross's conviction for armed robbery on an aider and abettor theory. In order for the government to prove that an accused aided and abetted another in the commission of a substantive offense, it must establish that: "(a) a crime was committed by someone; (b) the accused assisted or participated in its commission[;] and (c) his [or her] participation was with guilty knowledge." Jefferson v. United States, 463 A.2d 681, 683 (D.C.1983) (citation omitted).
The government's evidence showed that Ross remained in the company of Dew immediately following the incident. Thus, despite trial testimony suggesting the presence of other individuals in the walkway, based on Ross's proximity to the scene of the crime, his role as a lookout, and his continued association with Dew following the incident, the jury could find beyond a reasonable doubt that Ross assisted Dew in the commission of the robbery and that he did so with guilty knowledge. See Patterson v. United States, 479 A.2d 335, 338 (D.C.1984) (citing Creek v. United States, 324 A.2d 688 (D.C.1974)). Accordingly, we *1119 conclude that the evidence presented by the government was sufficient to sustain Ross's conviction for armed robbery under an aider and abettor theory.
III.
Dew argues that under Bruton v. United States, supra, the trial court erred in denying his motion to sever his case from that of his nontestifying codefendant, Ross, because admission of Ross' extrajudicial statement materially prejudiced his defense. Dew raises a number of contentions in this regard, none of which requires reversal.
Dew first argues that, although Ross's statement was redacted and the neutral term "the other person" substituted in the place of his name, and despite the trial court's limiting instruction to the jury, he suffered material prejudice because that statement, when viewed in light of the total trial evidence, clearly inculpated him.
The original statement contained a long narrative in which Ross implicated Dew as the main perpetrator of the Webber robbery. In order to avoid Bruton problems, the government deleted most references to Dew's involvement in the crime, except that the neutral term "the other person" was substituted for Dew's name in a sentence that could not have been excised without distorting the substance of Ross's explanation. The statement as redacted contained no details of the incident, nor did it in any way corroborate the testimony of the government's witnesses. Moreover, the trial court instructed the jury to consider the statement as evidence only against Ross. Under these circumstances, we conclude that any error was harmless beyond a reasonable doubt. See Foster v. United States, 548 A.2d 1370, 1380 (D.C.1988).
Dew also argues, however, that because the independent evidence of his possession of a gun during the commission of the robbery was conflicting, admission of Ross's redacted statement added substantial weight to the prosecution's case because it eliminated an assertion by Ross that Dew did not have a gun. The government obviously excised this reference in order to reduce the risk that the jury would infer from Ross's statement that Dew was present at the scene of the crime. Indeed, in light of Dew's attempt at trial to raise an alibi defense, retention of the challenged reference in its express form would have increased, not decreased, any potential prejudice Dew was likely to suffer from admission of Ross's statement. It follows that excision of Ross's assertion that Dew did not have a gun did not materially prejudice Dew's defense.[5]
Finally, we reject Dew's contention that a severance was required because admission of Ross's redacted statement gave rise to a defense on the part of Ross that was inherently irreconcilable with Dew's alibi defense. Ross presented no evidence, and his extrajudicial statement was offered by the government in its case-in-chief in order to establish Ross's guilt. Even assuming that Ross presented a defense of innocent presence, and that it conflicted with Dew's alibi defense despite the redaction, there was available at trial enough independent evidence of Dew's guilt so that it could be said "with substantial certainty, that the conflict in defense alone [did] not sway the jury to find appellant[] guilty." Tillman *1120 v. United States, 519 A.2d 166, 171 (D.C. 1986) (citation omitted).[6]
Affirmed.
PRYOR, Senior Judge, concurring:
This case presents the question whether the return of an indictment, and the assignment of counsel, creates a circumstance, notwithstanding warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which precludes police conversation with an accused, unless the person initiates the contact and singularly waives the right to counsel.
In a series of decisions touching this area, the Supreme Court has yet to resolve this precise issue. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court, in the context of Fifth Amendment protections, held that an accused, having asserted his right to remain silent, is not subject to further interrogation unless he initiates some further communication. In a case where the accused was indicted, released on bail, and represented by counsel, the Court, in Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), focused on the Sixth Amendment right to counsel, and concluded that, unless expressly waived, the accused in such circumstances has a right to have his attorney present at any confrontation with the police or their agent. Drawing closer to the case at bar, the Court, in an instance where the defendant requested an attorney at arraignment, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), ruled that police may not initiate questioning of a person where the assistance of counsel has previously been asserted and not waived. Lastly, the Court most recently approved the post-indictment interview of an individual where the accused, in the face of Miranda warnings, did not request counsel, retain a lawyer, nor rely upon an appointment of counsel by the court. Patterson v. Illinois, ___ U.S. ___, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).
Thus far the decisions emanating from the Court make it clear that an accused is entitled to the assistance of counsel at post-indictment interviews with law enforcement authorities where the right is asserted.
This case reflects a situation where an indictment was returned and an attorney assigned. It is unclear, prior to questioning, whether appellant ever met or accepted the attorney. It is clear that, after Miranda warnings, he did not claim the right to counsel. Thus, in these circumstances, the majority opinion interprets the Supreme Court decisionscases markedly different on their factsand finds a violation of the Sixth Amendment.
I do not. I conclude that the warnings given in this instance were adequate and thus do not apply a harmless error analysis.
NOTES
[*] Judge ROGERS was an Associate Judge of this court at the time of argument. Her status changed to Chief Judge on November 1, 1988.
[**] Judge PRYOR was Chief Judge of this court at the time of argument. His status changed to Senior Judge on November 2, 1988.
[1] The indictment also charged both appellants with one count each of unauthorized use of a vehicle. D.C.Code § 22-2204 (1981). The jury acquitted both appellants of this charge.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] In Shreeves v. United States, 395 A.2d 774 (D.C.1978), we sustained a police-initiated interrogation based on a waiver of sixth amendment rights after counsel had been appointed. A month earlier, counsel had told the interrogating officer, a Maryland Deputy Shefiff, that "he would advise appellant not to talk." Id. at 778. Subsequently, the Deputy Sheriff "contacted appellant's counsel about interviewing appellant, but no interview occurred." Id. Finally, a month after the first contact with counsel, the Deputy Sheriff obtained the waiver of rights from appellant and interviewed him at the D.C. Jail "without notifying his counsel about the intended interview." Id. (footnote omitted). "Appellant then made admissions ... about the crimes." Id. This court sustained the trial court's denial of a motion to suppress statements based on an alleged violation of the sixth amendment right to counsel. We believe that, on these facts, the Supreme Court decisions in Maine v. Moulton, 474 U.S. 159, 170-71, 176, 106 S.Ct. 477, 484-85, 487, 88 L.Ed.2d 481 (1985), as elaborated in Patterson v. Illinois, ___ U.S. ___, 108 S.Ct. 2389, 2393 n. 3, 101 L.Ed.2d 261 (1988), effectively overrule Part II of Shreeves, 395 A.2d at 780-82.
[4] The record is clear that Ross did not affirmatively request counsel within the meaning of Michigan v. Jackson, 475 U.S. 625, 635, 106 S.Ct. 1404, 1410, 89 L.Ed.2d 631 (1986).
[5] In a related argument, Dew contends that incorporation of Ross's signature from the original statement into the redacted version and the retyping of the original statement somehow resulted in prejudice to his case. When feasible, we have approved redaction of a nontestifying codefendant's statement to eliminate references which incriminate a non-confessing defendant as an alternative to severance on Bruton grounds. See, e.g., West v. United States, 499 A.2d 860, 868 (D.C.1985). In the present case, despite incorporation of Ross's signature, it was undisputed that Ross signed the original statement thereby indicating its accuracy, and that the text of the original statement was not altered in any fashion except that references to Dew's participation in the crime were substantially deleted and a sole isolated reference to "the other person" substituted for Dew's name. Furthermore, the original statement was re-typed in an attempt to deemphasize the deletions. Under such circumstances, we fail to see how the method of redaction in this case prejudiced Dew.
[6] Dew's additional contention that the trial court erred in refusing to instruct the jury on his defense of alibi has no merit. See Greenhow v. United States, 490 A.2d 1130, 1134-35 (D.C. 1985).
|
FILED
NOT FOR PUBLICATION
DEC 12 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT RADCLIFFE; CHESTER No. 18-55606
CARTER; MARIA FALCON; CLIFTON
C. SEALE III; ARNOLD LOVELL, Jr., D.C. No.
8:05-cv-01070-DOC-MLG
Plaintiffs-Appellants,
v. MEMORANDUM*
JOSE HERNANDEZ; ROBERT
RANDALL; BERTRAM ROBINSON;
KATHRYN PIKE; LEWIS MANN,
Plaintiffs-Appellees,
v.
EXPERIAN INFORMATION
SOLUTIONS, INC.; EQUIFAX
INFORMATION SERVICES, LLC;
TRANS UNION LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted November 7, 2019
Pasadena, California
Before: FARRIS and McKEOWN, Circuit Judges, and KENDALL,** District
Judge.
Objecting Plaintiffs (Radcliffe, et al.) appeal the district court=s approval of a
pre-certification class action settlement between Settling Plaintiffs (Hernandez, et
al.) and Defendants (Experian, et al.). We review the approval of a class-action
settlement for abuse of discretion. Rodriguez v. West Publ=g Corp., 563 F.3d 948,
963 (9th Cir. 2009). We will affirm unless the district court applied an incorrect
legal standard or based its decision on unreasonable findings of fact. Nachshin v.
AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011). We hold that the district court
did not abuse its discretion in finding that the settlement as a whole was Afair,
reasonable, and adequate.@ Fed. R. Civ. P. 23(e)(2). While we affirm the
settlement, we remand to the district court for recalculation of the attorneys= fee
award to Settling Counsel.
The parties are familiar with the facts and claims so we do not repeat them
here. In Radcliffe v. Experian Info. Solutions [Radcliffe I], 715 F.3d 1157 (9th
Cir. 2013), a panel of this court held that class representatives and class counsel
**
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
had conflicts of interest that prevented them from adequately representing the
class. Id. at 1163. This court reversed and remanded.
On remand after Radcliffe I, the district court re-appointed Settling Counsel
as class counsel and this court affirmed. Radcliffe v. Hernandez [Radcliffe II],
818 F.3d 537 (9th Cir. 2016). On remand after Radcliffe II, the Settling Parties
negotiated a revised settlement. In its order appointing them as class counsel, the
district court specifically noted that Settling Counsel would Aaccept the costs of re-
notice.@ We quoted this language in Radcliffe II when we affirmed the district
court=s order. Our decision in Radcliffe II was thus explicitly predicated on the
fact that Settling Counsel would Aaccept the costs of re-notice.@ Id.
The district court devoted much attention to a comparison between the two
settlements and approved the settlement in part because it found that the second
settlement brought greater net benefits to the class than the first. But, the second
settlement did not need to be as good as the first, nor must it necessarily have been
approved if it was better. Rule 23(e)(2)=s flexible standard is satisfied so long as
the settlement is Afair, reasonable, and adequate@ on its own merits. Further, we
review the adequacy of a settlement based on the Asettlement as a whole, rather
than the individual component parts.@ Staton v. Boeing Co., 327 F.3d 938, 960
(9th Cir. 2003) (quotation omitted); see also Rodriguez, 563 F.3d at 960B61
3
(concluding that conditional incentive agreements created a conflict of interest, but
affirming approval of the settlement).
We are satisfied that the district court did not abuse its discretion in
approving the settlement. The district court duly analyzed each of the factors
considered in Staton and deemed the settlement substantively adequate. See
Staton, 327 F.3d 959 (listing factors relevant to adequacy of class action
settlement). Objecting Plaintiffs= optimistic valuation of Defendants= potential
liabilities was undercut by substantial litigation risks, which drastically reduced the
expected value of the class=s claims. The parties sharpened their valuations of the
case over 14 years of contested litigation, not to mention four trips to this court on
appeal. They settled on terms mutually agreeable to the parties involved (except,
of course, Objecting Plaintiffs).
The district judgeCwho knew more about the parties= litigating positions
than anybody and, notably, had insight into future rulings on class certification and
other issues that would be reviewable only on a deferential standard of
reviewCdeemed the settlement adequate. See Hanlon v. Chrysler Corp., 150 F.3d
1011, 1026 (9th Cir. 1998) (noting that approval of a settlement is Acommitted to
the sound discretion of the trial judge because he is >exposed to the litigants, and
their strategies, positions and proof=@) (quoting Officers for Justice v. Civil Serv.
4
Comm=n, 688 F.2d 615, 626 (9th Cir. 1982)). Even if the district court overvalued
the worth of the non-monetary benefits, the settlement was adequate.
Likewise, we reject Objecting Plaintiffs= assertion that the settlement fails to
Atreat[] class members equitably relative to each other.@ Fed. R. Civ. P.
23(e)(2)(D). Rule 23=s flexible standard allows for the unequal distribution of
settlement funds so long as the distribution formula takes account of legitimate
considerations and the settlement remains Afair, reasonable, and adequate.@ Fed.
R. Civ. P. 23(e)(2). Settling Plaintiffs sought to provide additional relief to
plaintiffs who alleged more concrete material harms than other class members.
Nothing in Rule 23Cand no precedent cited by Objecting PlaintiffsCprohibits
parties from tying distribution of settlement funds to actual harm.
Objecting Plaintiffs= final contention is that Settling Counsel created a
conflict of interest by opting to Arepay@ its debt to the class in new benefits rather
than deducting the costs of re-notice from the fee award. As is, this contention is
less easily dismissed. At the very least, the structure of the attorneys= fee award in
this case created the possibility of a conflict of interest with the class.
That said, multiple factors counsel restraint. Most importantly, given that
Rule 23=s flexible standard governs this dispute, we conclude that the settlement is
fair and that Settling Counsel ably represented the class. In Rodriguez, we
5
approved a class action settlement even though we held that class counsel and five
of the seven class representatives had a conflict of interest. 563 F.3d at 961
(holding that settlement was substantively fair and reasonable to the class). The
Rodriguez factors are present here.
There is a further factor here that weighs in favor of approving the
settlement. This long-standing dispute has cost the parties a great deal already.
Further time spent litigating will serve only to devour more and more of the
settlement fund, which would be better spent providing relief to injured parties.
Settling Plaintiffs and Defendants have achieved a mutually agreeable solution,
though not without each side feeling the predictable pains of negotiation. We are
satisfied that the settlement provides adequate relief to the class.
In light of our decision in Radcliffe II, however, we remand for
reconsideration of the attorneys= fee award. Settling Counsel were duty-bound to
reimburse the class for the waste of settlement funds caused by the ethical conflict
in Radcliffe I. We recognize that the district court=s fee calculation appears to
have taken into account Settling Counsel=s Adebt@ to the class in other ways, such
that it may be unwarranted for the district court to simply subtract the $6 million
estimated cost of re-notice from the $8,262,848 fee award currently in place. We
6
leave specific calculations up to the discretion of the district court, but specifically
note Radcliffe II=s insistence that Settling Counsel pay the full cost of re-notice.
We affirm the district court=s approval of the settlement. We reverse and
remand the award of attorneys= fees to class counsel for recalculation of the fee
award in line with this court=s opinion in Radcliffe II.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Each party shall bear its own costs on appeal.
7
|
49 Wn. App. 364 (1987)
742 P.2d 1262
GRAND INVESTMENT COMPANY, Plaintiff,
v.
HENRY C. SAVAGE, ET AL, Defendants, DAN B. NORTON, ET AL, Respondents, BERTIL A. GRANBERG, Appellant.
No. 18028-2-I.
The Court of Appeals of Washington, Division One.
September 21, 1987.
Bertil A. Granberg, pro se.
Joseph G. Nolan, for respondents.
REVELLE, J.[*]
Bertil Granberg appeals the decision quashing a sheriff's sale and quieting title to real estate in Dan, Elaine and Stephen Norton.
There are stipulated facts which are stated chronologically *365 as follows:
1972 William Prince obtained a judgment against Dr. and Mrs. Savage. Prince assigned the judgment to Grand Investment Company (Grand).
1975 Lois Lee obtained a judgment against Savage.
1978 Grand executed the judgment on real estate owned by Savage. At the sheriff's sale, Grand bid in the amount of its judgment.
1979 Savage attempted to redeem. Grand objected and asserted that a greater amount was required to redeem. The trial court agreed and directed the sheriff to issue a deed to Grand as the redemption period had expired. Savage appealed, but filed neither a supersedeas bond nor a lis pendens.
1980 During the appeal Grand sold the property to the Nortons for a fair market price. Relying on the superior court order and the sheriff's deed, Grand gave a warranty deed to the Nortons without giving the Nortons any notice of the appeal or of any other proceeding against the property. In 1981, the Court of Appeals reversed the trial court and allowed Savage to redeem. Prince v. Savage, 29 Wn. App. 201, 627 P.2d 996 (1981).
1984 A certificate of redemption was issued to Savage.
1985 The 1975 Lee judgment was assigned to Granberg. Execution issued and there was a sheriff's sale. The Nortons objected to the sale, but the trial court confirmed the sale to Granberg. Also in 1985, Savage made a claim against Grand for damages or restoration. The Nortons brought the present suit against Savage and Granberg to quiet title. In late 1985, the suit between Savage, the Nortons and Grand was settled but the Norton-Granberg portion was tried on the stipulated facts.
1986 The trial court entered judgment against Granberg quieting title in the Nortons. This appeal followed.
Granberg raises five issues in this appeal. (1) The law requires the joinder of all parties in determining right, title or interest in real estate. (2) Because Lee/Granberg was not joined as a party in the initial determination on the *366 redemption attempt by Savage in 1978 it is not binding upon Lee/Granberg, and RAP 12.8 has no effect on his judgment lien. (3) Upon reversal of the trial court's determination of the sufficiency of redemption by the Court of Appeals, a lien creditor has the right to redeem or execute. (4) Upon the determination of the Court of Appeals that Savage redeemed, Savage regained title. (5) Norton was not a bona fide purchaser and cannot be protected under RAP 12.8, or by the fact Savage failed to file a supersedeas bond or lis pendens. Thus, when Grand's title was later reversed, Norton lost title.
[1] Granberg's contention that he or his assignor, Lee, as a junior creditor, had to be joined by Grand in the original execution and sale and the later redemption does not take into account the provisions of RCW Title 6, Enforcement of Judgments. Former RCW 6.24.010 and .015 require the sheriff to post notice of the sale on the property and on the courthouse door, and to publish the notice in a newspaper of general circulation. These provisions are the exclusive method of execution and redemption of judgments. Granberg does not contend that he was not given this statutory notice. He only contends that he was not joined as a party as required by CR 19(a),[1] RCW 4.56.190[2]*367 and RCW 4.56.200.[3]See In re Estate of Krueger, 11 Wn.2d 329, 119 P.2d 312 (1941); Gile Inv. Co. v. Fisher, 104 Wash. 613, 177 P. 710 (1919); Davis v. Bartz, 65 Wash. 395, 118 P. 334 (1911); Kiecker v. Pacific Indem. Co., 5 Wn. App. 871, 491 P.2d 244 (1971). None of these cases are persuasive. Gile holds that a prior mortgagee could not be bound by foreclosure proceedings on a subsequent judgment lien. *368 Here the lien which Grand held, and on which it executed, was a judgment lien prior to Lee/Granberg's lien and the subsequent foreclosures. Grand therefore had a superior right over Lee/Granberg. Granberg preserved rights of redemption which he failed to exercise. He was only entitled to the notice required by the provisions of RCW 6.24 and not entitled to be joined.
To receive protection as a bona fide purchaser, the purchaser must: (a) be a purchaser, not a donee, heir or devisee, (b) be bona fide, that is, act in good faith, (c) have paid value as the law defines value, and (d) be without notice, actual or constructive, of the rights, equities, or claims of others to or against the property. Biles-Coleman Lumber Co. v. Lesamiz, 49 Wn.2d 436, 302 P.2d 198 (1956); Barth v. Barth, 19 Wn.2d 543, 143 P.2d 542 (1943); 5 H. Tiffany, Real Property § 1300 (3d ed. 1939).
[2] Granberg contends the Nortons are not bona fide purchasers because Grand was not a bona fide purchaser, thus Norton can only take what Grand had. This is not the law in Washington. Generally, a purchaser for value without notice from one with notice is held to be a bona fide purchaser and not affected by any notice to his vendor and takes title free from the equities of which his predecessor had notice. Bernard v. Benson, 58 Wash. 191, 108 P. 439 (1910); Sayward v. Thompson, 11 Wash. 706, 40 P. 379 (1895).
Because Savage did not file a lis pendens or a supersedeas bond, Grand was free to dispose of the property with its title unencumbered by the possibility of a future reversal. In this way, Granberg's claim is defeated.
Under the rationale of the landmark case of Prince v. Mottman, 84 Wash. 287, 146 P. 841 (1915), Norton must be allowed to keep the property. In Prince, property was acquired by a bona fide purchaser after a judgment which was then subsequently reversed. The court held that the status of the property, now owned by the bona fide purchaser, shall not be affected by such reversal. It is the policy of the law to protect third parties who, in good faith *369 and for value, become purchasers at judicial sales so the highest and best price may be obtained. See Prince, at 295. Although in Prince the Mottmans were the actual purchasers at the sheriff's sale, the principle expounded there remains true for the innocent bona fide purchasers (the Nortons) who purchased from a judgment creditor holding title pursuant to a decision of a trial court. In Singly v. Warren, 18 Wash. 434, 438-39, 51 P. 1066 (1898), the Supreme Court recognized the right of a nonparty purchaser.
But, that a stranger to the record, who, in good faith, purchases land at an execution or judicial sale under a valid judgment, which has not been superseded by the filing of a proper bond, acquires rights which are not affected by a subsequent reversal of the judgment, is a doctrine universally announced by the courts. This rule has been recognized from very early times, and the reason of it is, as stated in Manning's Case, 8 Coke, 192, and many subsequent cases, that if the title obtained by the purchaser in such cases were avoided, the vendee would lose both his property and his money, and great inconvenience would therefore follow, as no one would buy of the sheriff in such cases, and execution of judgments would not be done. Our law, like the law elsewhere, permits judgments and decrees to be enforced during the pendency of appeals unless a bond to stay proceedings is given as required by law, and the courts have always construed the law so as to inspire confidence in judicial and execution sales by protecting bona fide purchasers at such sales from loss or injury by reason of erroneous judgments or decrees. It would be unjust to require such purchasers to suffer loss on account of errors of the trial courts of which they had no knowledge, and which they were nowise instrumental in producing. And such a requirement would be contrary to the settled policy of the law to encourage bidding at judicial sales, and to prevent the property of debtors from being sacrificed thereat.
(Citations omitted.) Although Granberg relies on Singly to support his argument that Norton was not a bona fide purchaser, Singly is distinguishable. A lis pendens had been *370 filed in the Singly case and no sheriff's deed had issued. In the case before us, on the stipulated facts there is no doubt the Nortons were bona fide purchasers. No lis pendens or supersedeas bond was filed and a sheriff's deed did issue. Under RAP 12.8 "[a]n interest in property acquired by a purchaser in good faith, under a decision subsequently reversed or modified, shall not be affected by the reversal or modification of that decision." Under RAP 7.2 Grand and Norton had the right to rely on the decision of the trial court, as its decision was not superseded as provided in RAP 8.1, nor was a lis pendens filed.
Granberg asserts that Norton cannot claim the protection of RAP 12.8. However, the case of Puget Sound Athletic Club, Inc. v. Seven Fourteen Market St. Assocs., 34 Wn. App. 478, 663 P.2d 128 (1983) holds otherwise. Although Athletic Club dealt with a lease situation, its rationale applies here. The court in Athletic Club stated that RAP 12.8, which protects the interests of a third party, may be asserted only by the third party. Athletic Club, at 481. Here, Norton is such a third party who has the right to the rule's protection.
Because the Nortons are bona fide purchasers, the reversal of the trial court, which in effect allowed Savage to redeem, results in giving Savage the right to collect the value of the property, as the property itself could not be restored to him.[4] Savage did not end up with an interest in the property itself, because he failed to supersede the judgment during the appellate process. Because Savage, the judgment debtor, had no interest in the property at the time of the execution, Granberg, the judgment creditor, could not attach the property. Granberg, as judgment creditor purchasing at his own execution sale stood in the shoes of Savage, the judgment debtor, and took only his interest. Desimone v. Spence, 51 Wn.2d 412, 318 P.2d 959 (1957); Sander v. Wells, 71 Wn.2d 25, 426 P.2d 481 (1967). Thus, *371 all Granberg might be entitled to is to collect from Savage; he has no right to take title to the property.
The judgment of the trial court is affirmed.
AGID and DURHAM, JJ. Pro Tem., concur.
NOTES
[*] This appeal was heard by a Supreme Court Justice, a Superior Court Judge, and a retired Superior Court Judge sitting as Court of Appeals Judges Pro Tempore in Division One.
[1] CR 19(a) provides:
"Persons To Be Joined if Feasible. 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 his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (A) as a practical matter impair or impede his ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action."
[2] Former RCW 4.56.190 provides:
"Lien of judgment. The real estate of any judgment debtor, and such as he may acquire, not exempt by law, shall be held and bound to satisfy any judgment of the district court of the United States rendered in this state, any judgment of the supreme court, court of appeals, or superior court of this state, and any judgment of any justice of the peace rendered in this state, and every such judgment shall be a lien thereupon to commence as hereinafter provided and to run for a period of not to exceed ten years from the day on which such judgment was rendered. As used in this chapter, real estate shall not include the vendor's interest under a real estate contract for judgments rendered after August 23, 1983. Personal property of the judgment debtor shall be held only from the time it is actually levied upon."
[3] Former RCW 4.56.200 provides:
"Commencement of lien on real estate. The lien of judgments upon the real estate of the judgment debtor shall commence as follows:
"(1) Judgments of the district court of the United States rendered in the county in which the real estate of the judgment debtor is situated, and judgments of the superior court for the county in which the real estate of the judgment debtor is situated, from the time of the entry thereof;
"(2) Judgments of the district court of the United States rendered in any county in this state other than that in which the real estate of the judgment debtor to be affected is situated, judgments of the supreme court of this state, judgments of the court of appeals of this state, and judgments of the superior court for any county other than that in which the real estate of the judgment debtor to be affected is situated, from the time of the filing of a duly certified abstract of such judgment with the county clerk of the county in which the real estate of the judgment debtor to be affected is situated, as provided in this act;
"(3) Judgments of a justice of peace rendered in the county in which the real estate of the judgment debtor is situated, from the time of the filing of a duly certified transcript of the docket of the justice of the peace with the county clerk of the county in which such judgment was rendered, and upon such filing said judgment shall become to all intents and purposes a judgment of the superior court for said county; and
"(4) Judgments of a justice of the peace rendered in any other county in this state than that in which the real estate of the judgment debtor to be affected is situated, a transcript of the docket of which has been filed with the county clerk of the county where such judgment was rendered, from the time of filing, with the county clerk of the county in which the real estate of the judgment debtor to be affected is situated, of a duly certified abstract of the record of said judgment in the office of the county clerk of the county in which the certified transcript of the docket of said judgment of said justice of the peace was originally filed."
[4] The issue of the value of the property was settled by the parties before the trial that resulted in this appeal.
|
209 F.2d 954
Jack C. VAUGHAN, Appellantv.BRANDON, BRANDON, HORNSBY & HANDY, and the Texas Company, Appellees.
No. 14730.
United States Court of Appeals Fifth Circuit.
February 9, 1954.
Rehearing Denied April 12, 1954.
Appeal from the United States District Court for the Southern District of Mississippi; Sidney C. Mize, Judge.
Jack C. Vaughan, St. Louis, Mo., for appellant.
G. H. Brandon, Natchez, Miss., Brandon, Brandon, Hornsby & Handy, Natchez, for appellees.
Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.
PER CURIAM.
1
The judgment appealed from is affirmed upon authority of Taliaferro v. Sims, 5 Cir., 187 F.2d 6, and Gunter v. Reeves, 198 Miss. 31, 21 So.2d 468.
|
615 F.2d 1352
Costarv.Janairo
No. 79-1910
United States Court of Appeals, Third Circuit
2/20/80
1
W.D.Pa.
AFFIRMED IN PART AND DISMISSED IN PARt
|
444 U.S. 394 (1980)
UNITED STATES
v.
BAILEY ET AL.
No. 78-990.
Supreme Court of United States.
Argued November 7, 1979.
Decided January 21, 1980.[*]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
*396 Edwin S. Kneedler argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Kenneth S. Geller, Jerome M. Feit, and John DePue.
Richard S. Kohn argued the cause for respondents. With him on the brief were John Townsend Rich, Robert A. Robbins, Jr., and Dorothy Sellers.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
In the early morning hours of August 26, 1976, respondents Clifford Bailey, James T. Cogdell, Ronald C. Cooley, and Ralph Walker, federal prisoners at the District of Columbia jail, crawled through a window from which a bar had been removed, slid down a knotted bedsheet, and escaped from custody. Federal authorities recaptured them after they had remained at large for a period of time ranging from one month to three and one-half months. Upon their apprehension, they were charged with violating 18 U. S. C. § 751 (a), which governs escape from federal custody.[1] At their trials, each of the *397 respondents adduced or offered to adduce evidence as to various conditions and events at the District of Columbia jail, but each was convicted by the jury. The Court of Appeals for the District of Columbia Circuit reversed the convictions by a divided vote, holding that the District Court had improperly precluded consideration by the respective juries of respondents' tendered evidence. We granted certiorari, 440 U. S. 957, and now reverse the judgments of the Court of Appeals.
In reaching our conclusion, we must decide the state of mind necessary for violation of § 751 (a) and the elements that constitute defenses such as duress and necessity. In explaining the reasons for our decision, we find ourselves in a position akin to that of the mother crab who is trying to teach her progeny to walk in a straight line, and finally in desperation exclaims: "Don't do as I do, do as I say." The Act of Congress we construe consists of one sentence set forth in the margin, n. 1, supra; our own pragmatic estimate, expressed infra, at 417, is that "[i]n general, trials for violations of § 751 (a) should be simple affairs." Yet we have written, reluctantly but we believe necessarily, a somewhat lengthy opinion supporting our conclusion, because in enacting the Federal Criminal Code Congress legislated in the light of a long history of case law that is frequently relevant in fleshing out the bare bones of a crime that Congress may have proscribed in a single sentence. See Morissette v. United States, 342 U. S. 246 (1952).
*398 I
All respondents requested jury trials and were initially scheduled to be tried jointly. At the last minute, however, respondent Cogdell secured a severance. Because the District Court refused to submit to the jury any instructions on respondents' defense of duress or necessity and did not charge the jury that escape was a continuing offense, we must examine in some detail the evidence brought out at trial.
The prosecution's case in chief against Bailey, Cooley, and Walker was brief. The Government introduced evidence that each of the respondents was in federal custody on August 26, 1976, that they had disappeared, apparently through a cell window, at approximately 5:35 a. m. on that date, and that they had been apprehended individually between September 27 and December 13, 1976.
Respondents' defense of duress or necessity centered on the conditions in the jail during the months of June, July, and August 1976, and on various threats and beatings directed at them during that period. In describing the conditions at the jail, they introduced evidence of frequent fires in "Northeast One," the maximum-security cellblock occupied by respondents prior to their escape. Construed in the light most favorable to them, this evidence demonstrated that the inmates of Northeast One, and on occasion the guards in that unit, set fire to trash, bedding, and other objects thrown from the cells. According to the inmates, the guards simply allowed the fires to burn until they went out. Although the fires apparently were confined to small areas and posed no substantial threat of spreading through the complex, poor ventilation caused smoke to collect and linger in the cellblock.
Respondents Cooley and Bailey also introduced testimony that the guards at the jail had subjected them to beatings and to threats of death. Walker attempted to prove that he was an epileptic and had received inadequate medical attention for his seizures.
*399 Consistently during the trial, the District Court stressed that, to sustain their defenses, respondents would have to introduce some evidence that they attempted to surrender or engaged in equivalent conduct once they had freed themselves from the conditions they described. But the court waited for such evidence in vain. Respondent Cooley, who had eluded the authorities for one month, testified that his "people" had tried to contact the authorities, but "never got in touch with anybody." App. 119. He also suggested that someone had told his sister that the Federal Bureau of Investigation would kill him when he was apprehended.
Respondent Bailey, who was apprehended on November 19, 1976, told a similar story. He stated that he "had the jail officials called several times," but did not turn himself in because "I would still be under the threats of death." Like Cooley, Bailey testified that "the FBI was telling my people that they was going to shoot me." Id., at 169, 175-176.
Only respondent Walker suggested that he had attempted to negotiate a surrender. Like Cooley and Bailey, Walker testified that the FBI had told his "people" that they would kill him when they recaptured him. Nevertheless, according to Walker, he called the FBI three times and spoke with an agent whose name he could not remember. That agent allegedly assured him that the FBI would not harm him, but was unable to promise that Walker would not be returned to the D. C. jail. Id., at 195-200.[2] Walker testified that he last called the FBI in mid-October. He was finally apprehended on December 13, 1976.
At the close of all the evidence, the District Court rejected respondents' proffered instruction on duress as a defense to *400 prison escape.[3] The court ruled that respondents had failed as a matter of law to present evidence sufficient to support such a defense because they had not turned themselves in after they had escaped the allegedly coercive conditions. After receiving instructions to disregard the evidence of the conditions in the jail, the jury convicted Bailey, Cooley, and Walker of violating § 751 (a).
Two months later, respondent Cogdell came to trial before the same District Judge who had presided over the trial of his co-respondents. When Cogdell attempted to offer testimony concerning the allegedly inhumane conditions at the D. C. jail, the District Judge inquired into Cogdell's conduct between his escape on August 26 and his apprehension on September 28. In response to Cogdell's assertion that he "may have written letters," the District Court specified that Cogdell could testify only as to "what he did . . . [n]ot what he may have done." App. 230. Absent such testimony, however, the District Court ruled that Cogdell could not present evidence of conditions at the jail. Cogdell subsequently chose not to testify on his own behalf, and was convicted by the jury of violating § 751 (a).
By a divided vote, the Court of Appeals reversed each respondent's conviction and remanded for new trials. See 190 U. S. App. D. C. 142, 585 F. 2d 1087 (1978); 190 U. S. *401 App. D. C. 185, 585 F. 2d 1130 (1978). The majority concluded that the District Court should have allowed the jury to consider the evidence of coercive conditions in determining whether the respondents had formulated the requisite intent to sustain a conviction under § 751 (a). According to the majority, § 751 (a) required the prosecution to prove that a particular defendant left federal custody voluntarily, without permission, and "with an intent to avoid confinement." 190 U. S. App. D. C., at 148, 585 F. 2d, at 1093. The majority then defined the word "confinement" as encompassing only the "normal aspects" of punishment prescribed by our legal system. Thus, where a prisoner escapes in order to avoid "non-confinement" conditions such as beatings or homosexual attacks, he would not necessarily have the requisite intent to sustain a conviction under § 751 (a). According to the majority:
"When a defendant introduces evidence that he was subject to such `non-confinement' conditions, the crucial factual determination on the intent issue is . . . whether the defendant left custody only to avoid these conditions or whether, in addition, the defendant also intended to avoid confinement. In making this determination the jury is to be guided by the trial court's instructions pointing out those factors that are most indicative of the presence or absence of an intent to avoid confinement." 190 U. S. App. D. C., at 148, n. 17, 585 F. 2d, at 1093, n. 17 (emphasis in original).
Turning to the applicability of the defense of duress or necessity, the majority assumed that escape as defined by § 751 (a) was a "continuing offense" as long as the escapee was at large. Given this assumption, the majority agreed with the District Court that, under normal circumstances, an escapee must present evidence of coercion to justify his continued absence from custody as well as his initial departure. Here, however, respondents had been indicted for "flee[ing] *402 and escap[ing]" "[o]n or about August 26, 1976," and not for "leaving and staying away from custody." 190 U. S. App. D. C., at 155, 585 F. 2d, at 1100 (emphasis in original). Similarly, "[t]he trial court's instructions when read as a whole clearly give the impression that [respondents] were being tried only for leaving the jail on August 26, and not for failing to return at some later date." Id., at 155, n. 50, 585 F. 2d, at 1100, n. 50. Under these circumstances, the majority believed that neither respondents nor the juries were acquainted with the proposition that the escapes in question were continuing offenses. This failure, according to the majority, constituted "an obvious violation of [respondents'] constitutional right to jury trial." Id., at 156, 585 F. 2d, at 1101.
The dissenting judge objected to what he characterized as a revolutionary reinterpretation of criminal law by the majority. He argued that the common-law crime of escape had traditionally required only "general intent," a mental state no more sophisticated than an "intent to go beyond permitted limits." Id., at 177, 585 F. 2d, at 1122 (emphasis deleted). The dissent concluded that the District Court had properly removed from consideration each respondent's contention that conditions and events at the D. C. jail justified his escape, because each respondent had introduced no evidence whatsoever justifying his continued absence from jail following that escape.
II
Criminal liability is normally based upon the concurrence of two factors, "an evil-meaning mind [and] an evil-doing hand. . . ." Morissette v. United States, 342 U. S., at 251. In the present case, we must examine both the mental element, or mens rea, required for conviction under § 751 (a) and the circumstances under which the "evil-doing hand" can avoid liability under that section because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.
*403 A
Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime. In 1970, the National Commission on Reform of Federal Criminal Laws decried the "confused and inconsistent ad hoc approach" of the federal courts to this issue and called for "a new departure." See 1 Working Papers of the National Commission on Reform of Federal Criminal Laws 123 (hereinafter Working Papers). Although the central focus of this and other reform movements has been the codification of workable principles for determining criminal culpability, see, e. g., American Law Institute, Model Penal Code §§ 2.01-2.13 (Prop. Off. Draft 1962) (hereinafter Model Penal Code); S. 1, 94th Cong., 2d Sess., §§ 301-303 (1976), a byproduct has been a general rethinking of traditional mens rea analysis.
At common law, crimes generally were classified as requiring either "general intent" or "specific intent." This venerable distinction, however, has been the source of a good deal of confusion. As one treatise explained:
"Sometimes `general intent' is used in the same way as `criminal intent' to mean the general notion of mens rea, while `specific intent' is taken to mean the mental state required for a particular crime. Or, `general intent' may be used to encompass all forms of the mental state requirement, while `specific intent' is limited to the one mental state of intent. Another possibility is that `general intent' will be used to characterize an intent to do something on an undetermined occasion, and `specific intent' to denote an intent to do that thing at a particular time and place." W. LaFave & A. Scott, Handbook on Criminal Law § 28, pp. 201-202 (1972) (footnotes omitted) (hereinafter LaFave & Scott).
This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea. See id., at 202. This new approach, exemplified *404 in the American Law Institute's Model Penal Code, is based on two principles. First, the ambiguous and elastic term "intent" is replaced with a hierarchy of culpable states of mind. The different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence.[4] See LaFave & Scott 194; Model Penal Code § 2.02. Perhaps the most significant, and most esoteric, distinction drawn by this analysis is that between the mental states of "purpose" and "knowledge." As we pointed out in United States v. United States Gypsum Co., 438 U. S. 422, 445 (1978), a person who causes a particular result is said to act purposefully if "`he consciously desires that result, whatever the likelihood of that result happening from his conduct,'" while he is said to act knowingly if he is aware "`that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.'"[5]
In the case of most crimes, "the limited distinction between knowledge and purpose has not been considered important since `there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results.'" United States v. United States Gypsum Co., supra, at 445, quoting LaFave & Scott 197. Thus, in Gypsum we held that a person could be held criminally liable under § 1 of the Sherman Act if that person exchanged price *405 information with a competitor either with the knowledge that the exchange would have unreasonable anticompetitive effects or with the purpose of producing those effects. 438 U. S., at 444-445, and n. 21.
In certain narrow classes of crimes, however, heightened culpability has been thought to merit special attention. Thus, the statutory and common law of homicide often distinguishes, either in setting the "degree" of the crime or in imposing punishment, between a person who knows that another person will be killed as the result of his conduct and a person who acts with the specific purpose of taking another's life. See LaFave & Scott 196-197. Similarly, where a defendant is charged with treason, this Court has stated that the Government must demonstrate that the defendant acted with a purpose to aid the enemy. See Haupt v. United States, 330 U. S. 631, 641 (1947). Another such example is the law of inchoate offenses such as attempt and conspiracy, where a heightened mental state separates criminality itself from otherwise innocuous behavior. See Model Penal Code § 2.02, Comments, p. 125 (Tent. Draft No. 4, 1955) (hereinafter MPC Comments).
In a general sense, "purpose" corresponds loosely with the common-law concept of specific intent, while "knowledge" corresponds loosely with the concept of general intent. See ibid.; LaFave & Scott 201-202. Were this substitution of terms the only innovation offered by the reformers, it would hardly be dramatic. But there is another ambiguity inherent in the traditional distinction between specific intent and general intent. Generally, even time-honored common-law crimes consist of several elements, and complex statutorily defined crimes exhibit this characteristic to an even greater degree. Is the same state of mind required of the actor for each element of the crime, or may some elements require one state of mind and some another? In United States v. Feola, 420 U. S. 671 (1975), for example, we were asked to decide *406 whether the Government, to sustain a conviction for assaulting a federal officer under 18 U. S. C. § 111, had to prove that the defendant knew that his victim was a federal officer. After looking to the legislative history of § 111, we concluded that Congress intended to require only "an intent to assault, not an intent to assault a federal officer." 420 U. S., at 684. What Feola implied, the American Law Institute stated: "[C]lear analysis requires that the question of the kind of culpability required to establish the commission of an offense be faced separately with respect to each material element of the crime." MPC Comments 123. See also Working Papers 131; LaFave & Scott 194.
Before dissecting § 751 (a) and assigning a level of culpability to each element, we believe that two observations are in order. First, in performing such analysis courts obviously must follow Congress' intent as to the required level of mental culpability for any particular offense. Principles derived from common law as well as precepts suggested by the American Law Institute must bow to legislative mandates. In the case of § 751 (a), however, neither the language of the statute nor the legislative history mentions the mens rea required for conviction.[6]
Second, while the suggested element-by-element analysis is a useful tool for making sense of an otherwise opaque concept, it is not the only principle to be considered. The administration of the federal system of criminal justice is confided to ordinary mortals, whether they be lawyers, judges, or jurors. This system could easily fall of its own weight if courts or *407 scholars become obsessed with hair-splitting distinctions, either traditional or novel, that Congress neither stated nor implied when it made the conduct criminal.
As relevant to the charges against Bailey, Cooley, and Walker, § 751 (a) required the prosecution to prove (1) that they had been in the custody of the Attorney General, (2) as the result of a conviction, and (3) that they had escaped from that custody. As for the charges against respondent Cogdell, § 751 (a) required the same proof, with the exception that his confinement was based upon an arrest for a felony rather than a prior conviction. Although § 751 (a) does not define the term "escape," courts and commentators are in general agreement that it means absenting oneself from custody without permission. See, e. g., 190 U. S. App. D. C., at 148, 585 F. 2d, at 1093; id., at 177, 585 F. 2d, at 1122 (Wilkey, J., dissenting); United States v. Wilke, 450 F. 2d 877 (CA9 1971), cert. denied, 409 U. S. 918 (1972). See also 2 J. Bishop, Criminal Law § 1103, p. 819 (9th ed. 1923); 1 W. Burdick, Law of Crime 462-463 (1946); R. Perkins, Criminal Law 429 (1957); 3 F. Wharton, Criminal Law § 2003, p. 2178 (11th ed. 1912).
Respondents have not challenged the District Court's instructions on the first two elements of the crime defined by § 751 (a). It is undisputed that, on August 26, 1976, respondents were in the custody of the Attorney General as the result of either arrest on charges of felony or conviction. As for the element of "escape," we need not decide whether a person could be convicted on evidence of recklessness or negligence with respect to the limits on his freedom. A court may someday confront a case where an escapee did not know, but should have known, that he was exceeding the bounds of his confinement or that he was leaving without permission. Here, the District Court clearly instructed the juries that the prosecution bore the burden of proving that respondents "knowingly committed an act which the law makes a crime" and that they *408 acted "knowingly, intentionally, and deliberately. . . ." App. 221-223, 231-233. At a minimum, the juries had to find that respondents knew they were leaving the jail and that they knew they were doing so without authorization. The sufficiency of the evidence to support the juries' verdicts under this charge has never seriously been questioned, nor could it be.
The majority of the Court of Appeals, however, imposed the added burden on the prosecution to prove as a part of its case in chief that respondents acted "with an intent to avoid confinement." While, for the reasons noted above, the word "intent" is quite ambiguous, the majority left little doubt that it was requiring the Government to prove that the respondents acted with the purposethat is, the conscious objectiveof leaving the jail without authorization. In a footnote explaining their holding, for example, the majority specified that an escapee did not act with the requisite intent if he escaped in order to avoid "`non-confinement' conditions" as opposed to "normal aspects of `confinement.'" 190 U. S. App. D. C., at 148, n. 17, 585 F. 2d, at 1093, n. 17.
We find the majority's position quite unsupportable. Nothing in the language or legislative history of § 751 (a) indicates that Congress intended to require either such a heightened standard of culpability or such a narrow definition of confinement. As we stated earlier, the cases have generally held that, except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction. Accordingly, we hold that the prosecution fulfills its burden under § 751 (a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission. Our holding in this respect comports with parallel definitions of the crime of escape both in the Model Penal Code and in a proposed revision of the Federal Criminal Code. See Model Penal Code §§ 2.02 (3), 242.6 (1); Report of Senate Committee on the Judiciary to Accompany S. 1, S. Rep. No. 94-00, pp. 333-334 (Comm. *409 Print 1976).[7] Moreover, comments accompanying the proposed revision of the Federal Criminal Code specified that the new provision covering escape "substantially carrie[d] forward existing law. . . ." Id., at 332.
B
Respondents also contend that they are entitled to a new trial because they presented (or, in Cogdell's case, could have presented) sufficient evidence of duress or necessity to submit such a defense to the jury. The majority below did not confront this claim squarely, holding instead that, to the extent that such a defense normally would be barred by a prisoner's failure to return to custody, neither the indictment nor the jury instructions adequately described such a requirement. See 190 U. S. App. D. C., at 155-156, 585 F. 2d, at 1100-1101.
Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the *410 actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity. See generally LaFave & Scott 374-384.
Modern cases have tended to blur the distinction between duress and necessity. In the court below, the majority discarded the labels "duress" and "necessity," choosing instead to examine the policies underlying the traditional defenses. See 190 U. S. App. D. C., at 152, 585 F. 2d, at 1097. In particular, the majority felt that the defenses were designed to spare a person from punishment if he acted "under threats or conditions that a person of ordinary firmness would have been unable to resist," or if he reasonably believed that criminal action "was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense." Id., at 152-153, 585 F. 2d, at 1097-1098. The Model Penal Code redefines the defenses along similar lines. See Model Penal Code § 2.09 (duress) and § 3.02 (choice of evils).
We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against charges brought under § 751 (a). Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, "a chance both to refuse to do the criminal act and also to avoid the threatened harm," the defenses will fail. LaFave & Scott 379.[8] Clearly, in the context of prison escape, the escapee is *411 not entitled to claim a defense of duress or necessity unless and until he demonstrates that, given the imminence of the threat, violation of § 751 (a) was his only reasonable alternative. See United States v. Boomer, 571 F. 2d 543, 545 (CA10), cert. denied sub nom. Heft v. United States, 436 U. S. 911 (1978); People v. Richards, 269 Cal. App. 2d 768, 75 Cal. Rptr. 597 (1969).
In the present case, the Government contends that respondents' showing was insufficient on two grounds. First, the Government asserts that the threats and conditions cited by respondents as justifying their escape were not sufficiently immediate or serious to justify their departure from lawful custody. Second, the Government contends that, once the respondents had escaped, the coercive conditions in the jail were no longer a threat and respondents were under a duty to terminate their status as fugitives by turning themselves over to the authorities.
Respondents, on the other hand, argue that the evidence of coercion and conditions in the jail was at least sufficient to go to the jury as an affirmative defense to the crime charged. As for their failure to return to custody after gaining their freedom, respondents assert that this failure should be but one factor in the overall determination whether their initial departure was justified. According to respondents, their failure to surrender "may reflect adversely on the bona fides of [their] motivation" in leaving the jail, but should not withdraw *412 the question of their motivation from the jury's consideration. Brief for Respondents 67. See also n. 3, supra.
We need not decide whether such evidence as that submitted by respondents was sufficient to raise a jury question as to their initial departures. This is because we decline to hold that respondents' failure to return is "just one factor" for the jury to weigh in deciding whether the initial escape could be affirmatively justified. On the contrary, several considerations lead us to conclude that, in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure[9] and that an indispensable element of such an offer *413 is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.
First, we think it clear beyond peradventure that escape from federal custody as defined in § 751 (a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure. Given the continuing threat to society posed by an escaped prisoner, "the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Toussie v. United States, 397 U. S. 112, 115 (1970). Moreover, every federal court that has considered this issue has held, either explicitly or implicitly, that § 751 (a) defines a continuing offense. See, e. g., United States v. Michelson, 559 F. 2d 567 (CA9 1977); United States v. Cluck, 542 F. 2d 728 (CA8), cert. denied, 429 U. S. 986 (1976); United States v. Joiner, 496 F. 2d 1314 (CA5), cert. denied, 419 U. S. 1002 (1974); United States v. Chapman, 455 F. 2d 746 (CA5 1972).
Respondents point out that Toussie calls for restraint in labeling crimes as continuing offenses. The justification for that restraint, however, is the tension between the doctrine of continuing offenses and the policy of repose embodied in statutes *414 of limitations. See 397 U. S., at 114-115. This tension is wholly absent where, as in the case of § 751 (a), the statute of limitations is tolled for the period that the escapee remains at large.[10]
The remaining considerations leading to our conclusion are, perhaps ironically, derived from the same concern for the statutory and constitutional right of jury trial upon which the majority of the Court of Appeals based its reasoning. There was no significant "variance" in the indictment merely because respondents had not been indicted under a theory of escape as a continuing offense and because the District Court did not explain this theory to the juries. We have held on several occasions that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U. S. 87, 117 (1974). These indictments, which track closely the language of § 751 (a), were undoubtedly sufficient under this standard. See 418 U. S., at 117. As for the alleged failure of the District Court to elaborate for the benefit of the jury on the continuing nature of the charged offense, we believe that such elaboration was unnecessary where, as here, the evidence failed as a matter of law in a crucial particular to reach the minimum threshold that would have required an instruction on respondents' theory of the case generally.
The Anglo-Saxon tradition of criminal justice, embodied in the United States Constitution and in federal statutes, makes jurors the judges of the credibility of testimony offered by witnesses. It is for them, generally, and not for appellate *415 courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story. An escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, "`for he is not to be hanged because he would not stay to be burnt.'" United States v. Kirby, 7 Wall. 482, 487 (1869). And in the federal system it is the jury that is the judge of whether the prisoner's account of his reason for flight is true or false. But precisely because a defendant is entitled to have the credibility of his testimony, or that of witnesses called on his behalf, judged by the jury, it is essential that the testimony given or proffered meet a minimum standard as to each element of the defense so that, if a jury finds it to be true, it would support an affirmative defensehere that of duress or necessity.
We therefore hold that, where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. We have reviewed the evidence examined elaborately in the majority and dissenting opinions below, and find the case not even close, even under respondents' versions of the facts, as to whether they either surrendered or offered to surrender at their earliest possible opportunity. Since we have determined that this is an indispensable element of the defense of duress or necessity, respondents were not entitled to any instruction on such a theory. Vague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.[11]
*416 III
In reversing the judgments of the Court of Appeals, we believe that we are at least as faithful as the majority of that court to its expressed policy of "allowing the jury to perform its accustomed role" as the arbiter of factual disputes. 190 U. S. App. D. C., at 151, 585 F. 2d, at 1096. The requirement of a threshold showing on the part of those who assert an affirmative defense to a crime is by no means a derogation of the importance of the jury as a judge of credibility. Nor is it based on any distrust of the jury's ability to separate fact from fiction. On the contrary, it is a testament to the importance of trial by jury and the need to husband the resources necessary for that process by limiting evidence in a trial to that directed at the elements of the crime or at affirmative defenses. If, as we here hold, an affirmative defense consists of several elements and testimony supporting one element is insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense.
*417 These cases present a good example of the potential for wasting valuable trial resources. In general, trials for violations of § 751 (a) should be simple affairs. The key elements are capable of objective demonstration; the mens rea, as discussed above, will usually depend upon reasonable inferences from those objective facts. Here, however, the jury in the trial of Bailey, Cooley, and Walker heard five days of testimony. It was presented with evidence of every unpleasant aspect of prison life from the amount of garbage on the cellblock floor, to the meal schedule, to the number of times the inmates were allowed to shower. Unfortunately, all this evidence was presented in a case where the defense's reach hopelessly exceeded its grasp. Were we to hold, as respondents suggest, that the jury should be subjected to this potpourri even though a critical element of the proffered defenses was concededly absent, we undoubtedly would convert every trial under § 751 (a) into a hearing on the current state of the federal penal system.
Because the juries below were properly instructed on the mens rea required by § 751 (a), and because the respondents failed to introduce evidence sufficient to submit their defenses of duress and necessity to the juries, we reverse the judgments of the Court of Appeals.
Reversed.
MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases.
MR. JUSTICE STEVENS, concurring.
The essential difference between the majority and the dissent is over the question whether the record contains enough evidence of a bona fide effort to surrender or return to custody to present a question of fact for the jury to resolve. On this issue, I agree with the Court that the evidence introduced by defendants Cooley, Bailey, and Cogdell was plainly insufficient. *418 Vague references to anonymous intermediaries are so inherently incredible that a trial judge is entitled to ignore them. With respect to Walker, however, the question is much closer because he testified that he personally telephoned an FBI agent three times in an effort to negotiate a surrender.[1] But since he remained at large for about two months after his last effort to speak with the FBI, I am persuaded that even under his version of the facts he did not make an adequate attempt to satisfy the return requirement.
The fact that I have joined the Court's opinion does not indicate that Ior indeed that any other Member of the majorityis unconcerned about prison conditions described by MR. JUSTICE BLACKMUN. Because we are construing the federal escape statute, however, I think it only fair to note that such conditions are more apt to prevail in state or county facilities than in federal facilities.[2] Moreover, reasonable men may well differ about the most effective methods of redressing the situation. In my view, progress toward acceptable solutions involves formulating enforceable objective standards for civilized prison conditions,[3] keeping the channels of communication between prisoners and the outside world open,[4] and guaranteeing access to the courts,[5] rather than relying on ad hoc judgments about the good faith of *419 prison administrators,[6] giving undue deference to their "expertise"[7] or encouraging self-help by convicted felons.[8] In short, neither my agreement with much of what MR. JUSTICE BLACKMUN has written, nor my disagreement with the Court about related issues, prevents me from joining its construction of the federal escape statute.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, dissenting.
The Court's opinion, it seems to me, is an impeccable exercise in undisputed general principles and technical legalism: The respondents were properly confined in the District of Columbia jail. They departed from that jail without authority or consent. They failed promptly to turn themselves in when, as the Court would assert by way of justification, ante, at 413. 415, the claimed duress or necessity "had lost its coercive force." Therefore, the Court concludes, there is no defense for a jury to weigh and consider against the respondents' prosecution for escape violative of 18 U. S. C. § 751 (a).
It is with the Court's assertion that the claimed duress or necessity had lost its coercive force that I particularly disagree. The conditions that led to respondents' initial departure from the D. C. jail continue unabated. If departure was justifiedand on the record before us that issue, I feel, is for the jury to resolve as a matter of fact in the light of *420 the evidence, and not for this Court to determine as a matter of lawit seems too much to demand that respondents, in order to preserve their legal defenses, return forthwith to the hell that obviously exceeds the normal deprivations of prison life and that compelled their leaving in the first instance. The Court, however, requires that an escapee's action must amount to nothing more than a mere and temporary gesture that, it is to be hoped, just might attract attention in responsive circles. But life and health, even of convicts and accuseds, deserve better than that and are entitled to more than pious pronouncements fit for an ideal world.
The Court, in its carefully structured opinion, does reach a result that might be a proper one were we living in that ideal world, and were our American jails and penitentiaries truly places for humane and rehabilitative treatment of their inmates. Then the statutory crime of escape could not be excused by duress or necessity, by beatings, and by guard-set fires in the jails, for these would not take place, and escapees would be appropriately prosecuted and punished.
But we do not live in an ideal world "even" (to use a self-centered phrase) in America, so far as jail and prison conditions are concerned. The complaints that this Court, and every other American appellate court, receives almost daily from prisoners about conditions of incarceration, about filth, about homosexual rape, and about brutality are not always the mouthings of the purely malcontent. The Court itself acknowledges, ante, at 398, that the conditions these respondents complained about do exist. It is in the light of this stark truth, it seems to me, that these cases are to be evaluated. It must follow, then, that the jail-condition evidence proffered by respondent Cogdell should have been admitted, and that the jury before whom respondents Bailey, Cooley, and Walker were tried should not have been instructed to disregard the jail-condition evidence that did come in. I therefore dissent.
*421 I
The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking. The dissent in the Bailey case in the Court of Appeals acknowledged that "the circumstances of prison life are such that at least a colorable, if not credible, claim of duress or necessity can be raised with respect to virtually every escape." 190 U. S. App. D. C. 142, 167, 585 F. 2d 1087, 1112. And the Government concedes: "In light of prison conditions that even now prevail in the United States, it would be the rare inmate who could not convince himself that continued incarceration would be harmful to his health or safety." Brief for United States 27. See Furtado v. Bishop, 604 F. 2d 80 (CA1 1979), cert. denied, post, p. 1035. Cf. Bell v. Wolfish, 441 U. S. 520 (1979).
A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail.[1] Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system.[2] Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.[3]
*422 Even more appalling is the fact that guards frequently participate in the brutalization of inmates.[4] The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions.[5]
The evidence submitted by respondents in these cases fits that pattern exactly. Respondent Bailey presented evidence that he was continually mistreated by correctional officers during his stay at the D. C. jail. He was threatened that his testimony in the Brad King case would bring on severe retribution. App. 142, 145. Other inmates were beaten by guards as a message to Bailey. Id., at 36. An inmate testified that on one occasion, three guards displaying a small knife told him that they were going "to get your buddy, that nigger Bailey. We're going to kill him." Id., at 94. The threats culminated in a series of violent attacks on Bailey. Blackjacks, mace, and slapjacks (leather with a steel insert) were used in beating Bailey. Id., at 94, 101, 146-150.
Respondent Cooley also elicited testimony from other inmates concerning beatings of Cooley by guards with slapjacks, blackjacks, and flashlights. Id., at 46-47, 97-98, 106, 116-118, *423 166-167, 185-186. There was evidence that guards threatened to kill Cooley. Id., at 107.
It is society's responsibility to protect the life and health of its prisoners. "[W]hen a sheriff or a marshall [sic] takes a man from the courthouse in a prison van and transports him to confinement for two or three or ten years, this is our act. We have tolled the bell for him. And whether we like it or not, we have made him our collective responsibility. We are free to do something about him; he is not" (emphasis in original). Address by THE CHIEF JUSTICE, 25 Record of the Assn. of the Bar of the City of New York 14, 17 (Mar. 1970 Supp.). Deliberate indifference to serious and essential medical needs of prisoners constitutes "cruel and unusual" punishment violative of the Eighth Amendment. Estelle v. Gamble, 429 U. S. 97, 104 (1976).
"An inmate must rely on prison authorities to treat his medical needs. . . . In the worst cases, such a failure may actually produce physical `torture or a lingering death'. . . . In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . . The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency." Id., at 103.
It cannot be doubted that excessive or unprovoked violence and brutality inflicted by prison guards upon inmates violates the Eighth Amendment. See, e. g., Jackson v. Bishop, 404 F. 2d 571 (CA8 1968). The reasons that support the Court's holding in Estelle v. Gamble lead me to conclude that failure to use reasonable measures to protect an inmate from violence inflicted by other inmates also constitutes cruel and unusual punishment. Homosexual rape or other violence serves no penological purpose. Such brutality is the equivalent of torture, and is offensive to any modern standard of human dignity. Prisoners must depend, and rightly so, upon the prison administrators for protection from abuse of this kind.
*424 There can be little question that our prisons are badly over-crowded and understaffed and that this in large part is the cause of many of the shortcomings of our penal systems. This, however, does not excuse the failure to provide a place of confinement that meets minimal standards of safety and decency.
Penal systems in other parts of the world demonstrate that vast improvement surely is not beyond our reach. "The contrast between our indifference and the programs in some countries of EuropeHolland and the Scandinavian countries in particularis not a happy one for us." Address by THE CHIEF JUSTICE, supra, at 20. "It has been many years since Swedish prisoners were concerned with such problems as `adequate food, water, shelter'; `true religious freedom'; and `adequate medical treatment.'" Ward, Inmate Rights and Prison Reform in Sweden and Denmark, 63 J. Crim. L., C. & P. S. 240 (1972). See also Profile/Sweden, Corrections Magazine 11 (June 1977). Sweden's prisons are not over-crowded, and most inmates have a private cell. Salomon, Lessons from the Swedish Criminal Justice System: A Reappraisal, 40 Fed. Probation 40, 43 (Sept. 1976). The prisons are small. The largest accommodate 300-500 inmates; most house 50-150. Id., at 43; Profile/Sweden, supra, at 14. "There appears to be a relaxed atmosphere between staff and inmates, and a prevailing attitude that prisoners must be treated with dignity and respect." Siegel, Criminal Justice Swedish Style: A Humane Search for Answers, 1 Offender Rehabilitation 291, 292 (1977).
II
The real question presented in this case is whether the prisoner should be punished for helping to extricate himself from a situation where society has abdicated completely its basic responsibility for providing an environment free of life-threatening conditions such as beatings, fires, lack of essential medical care, and sexual attacks. To be sure, Congress in so *425 many words has not enacted specific statutory duress or necessity defenses that would excuse or justify commission of an otherwise unlawful act. The concept of such a defense, however, is "anciently woven into the fabric of our culture." J. Hall, General Principles of Criminal Law 416 (2d ed. 1960), quoted in Brief for United States 21. And the Government concedes that "it has always been an accepted part of our criminal justice system that punishment is inappropriate for crimes committed under duress because the defendant in such circumstances cannot fairly be blamed for his wrongful act." Id., at 23.
Although the Court declines to address the issue, it at least implies that it would recognize the common-law defenses of duress and necessity to the federal crime of prison escape, if the appropriate prerequisites for assertion of either defense were met. See ante, at 410-413. Given the universal acceptance of these defenses in the common law, I have no difficulty in concluding that Congress intended the defenses of duress and necessity to be available to persons accused of committing the federal crime of escape.
I agree with most of the Court's comments about the essential elements of the defenses. I, too, conclude that intolerable prison conditions are to be taken into account through affirmative defenses of duress and necessity, rather than by way of the theory of intent espoused by the Court of Appeals. That court's conclusion that intent to avoid the normal aspects of confinement is an essential element of the offense of escape means that the burden of proof is on the Government to prove that element. According to our precedents, e. g., Mullaney v. Wilbur, 421 U. S. 684 (1975), the Government would have to prove that intent beyond a reasonable doubt. It is unlikely that Congress intended to place this difficult burden on the prosecution. The legislative history is sparse, and does not specifically define the requisite intent. Circumstances that compel or coerce a person to *426 commit an offense, however, traditionally have been treated as an affirmative defense, with the burden of proof on the defendant. Although intolerable prison conditions do not fit within the standard definition of a duress or necessity defense, see 190 U. S. App. D. C., at 151-152, n. 29, 585 F. 2d, at 1096-1097, n. 29, they are analogous to these traditional defenses. I therefore agree that it is appropriate to treat unduly harsh prison conditions as an affirmative defense.
I also agree with the Court that the absence of reasonable less drastic alternatives is a prerequisite to successful assertion of a defense of necessity or duress to a charge of prison escape. One must appreciate, however, that other realistic avenues of redress seldom are open to the prisoner. Where prison officials participate in the maltreatment of an inmate, or purposefully ignore dangerous conditions or brutalities inflicted by other prisoners or guards, the inmate can do little to protect himself. Filing a complaint may well result in retribution, and appealing to the guards is a capital offense under the prisoners' code of behavior.[6] In most instances, the question whether alternative remedies were thoroughly "exhausted" should be a matter for the jury to decide.
I, too, conclude that the jury generally should be instructed that, in order to prevail on a necessity or duress defense, the defendant must justify his continued absence from custody, as well as his initial departure. I agree with the *427 Court that the very nature of escape makes it a continuing crime. But I cannot agree that the only way continued absence can be justified is by evidence "of a bona fide effort to surrender or return to custody." Ante, at 413, 415. The Court apparently entertains the view, naive in my estimation, that once the prisoner has escaped from a life- or health-threatening situation, he can turn himself in, secure in the faith that his escape somehow will result in improvement in those intolerable prison conditions. While it may be true in some rare circumstance that an escapee will obtain the aid of a court or of the prison administration once the escape is accomplished, the escapee, realistically, faces a high probability of being returned to the same prison and to exactly the same, or even greater, threats to life and safety.
The rationale of the necessity defense is a balancing of harms. If the harm caused by an escape is less than the harm caused by remaining in a threatening situation, the prisoner's initial departure is justified. The same rationale should apply to hesitancy and failure to return. A situation may well arise where the social balance weighs in favor of the prisoner even though he fails to return to custody. The escapee at least should be permitted to present to the jury the possibility that the harm that would result from a return to custody outweighs the harm to society from continued absence.
Even under the Court's own standard, the defendant in an escape prosecution should be permitted to submit evidence to the jury to demonstrate that surrender would result in his being placed again in a life- or health-threatening situation. The Court requires return to custody once the "claimed duress or necessity had lost its coercive force." Ante, at 413, 415. Realistically, however, the escapee who reasonably believes that surrender will result in return to what concededly is an intolerable prison situation remains subject to the same "coercive force" that prompted his escape in the first instance. It is ironic to say that that force is automatically "lost" once the prison wall is passed.
*428 The Court's own phrasing of its test demonstrates that it is deciding factual questions that should be presented to the jury. It states that a "bona fide" effort to surrender must be proved. Ibid. Whether an effort is "bona fide" is a jury question. The Court also states that "[v]ague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense." Ante, at 415. Traditionally, it is the function of the jury to evaluate the credibility and meaning of "necessarily self-serving statements" and "ambiguous conduct." See People v. Luther, 394 Mich. 619, 232 N. W. 2d 184 (1975); People v. Unger, 66 Ill. 2d 333, 362 N. E. 2d 319 (1977); Esquibel v. State, 91 N. M. 498, 576 P. 2d 1129 (1978).
Finally, I of course must agree with the Court that use of the jury is to be reserved for the case in which there is sufficient evidence to support a verdict. I have no difficulty, however, in concluding that respondents here did indeed submit sufficient evidence to support a verdict of not guilty, if the jury were so inclined, based on the necessity defense. Respondent Bailey testified that he was in fear for his life, that he was afraid he would still face the same threats if he turned himself in, and that "[t]he FBI was telling my people that they was going to shoot me." App. 176.[7] Respondent *429 Cooley testified that he did not know anyone to call, and that he feared that the police would shoot him when they came to get him. Id., at 119.[8] Respondent Walker testified that he had been in "constant rapport," id., at 195, with an FBI agent, who assured him that the FBI would not harm him, but who would not promise that he would not be returned to the D. C. jail. Id., at 200. Walker also stated *430 that he had heard through his sister that the FBI "said that if they ran down on me they was going to kill me." Id., at 195.[9]
*431 Perhaps it is highly unlikely that the jury would have believed respondents' stories that the FBI planned to shoot them on sight, or that respondent Walker had been in constant *432 communication with an FBI agent. Nevertheless, such testimony, even though "self-serving," and possibly extreme and unwarranted in part, was sufficient to permit the jury to decide whether the failure to surrender immediately was justified *433 or excused. This is routine grist for the jury mill and the jury usually is able to sort out the fabricated and the incredible.
In conclusion, my major point of disagreement with the Court is whether a defendant may get his duress or necessity *434 defense to the jury when it is supported only by "self-serving" testimony and "ambiguous conduct." It is difficult to imagine any case, criminal or civil, in which the jury is asked *435 to decide a factual question based on completely disinterested testimony and unambiguous actions. The very essence of a jury issue is a dispute over the credibility of testimony by interested witnesses and the meaning of ambiguous actions.
Ruling on a defense as a matter of law and preventing the jury from considering it should be a rare occurrence in criminal cases. "[I]n a criminal case the law assigns [the factfinding function] solely to the jury." Sandstrom v. Montana, 442 U. S. 510, 523 (1979). The jury is the conscience of society and its role in a criminal prosecution is particularly important. Duncan v. Louisiana, 391 U. S. 145, 156 (1968). Yet the Court here appears to place an especially strict burden of proof on defendants attempting to establish an affirmative defense to the charged crime of escape. That action is unwarranted. If respondents' allegations are true, society is grossly at fault for permitting these conditions to persist at the D. C. jail. The findings of researchers and government agencies, as well as the litigated cases, indicate that in a general sense these allegations are credible.[10] The case for recognizing the duress or necessity defenses is even more compelling when it is society, rather than private actors, that creates the coercive conditions. In such a situation it is especially appropriate *436 that the jury be permitted to weigh all the factors and strike the balance between the interests of prisoners and that of society. In an attempt to conserve the jury for cases it considers truly worthy of that body, the Court has ousted the jury from a role it is particularly well suited to serve.
NOTES
[*] Together with United States v. Cogdell, also on certiorari to the same court (see this Court's Rule 23 (5)).
[1] Title 18 U. S. C. § 751 (a) provides:
"Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both."
Respondents were also charged with violating 22 D. C. Code § 2601 (1973), the District of Columbia's statute proscribing escape from prison. The District Court instructed the juries that if they found the respondents guilty of violating 18 U. S. C. § 751 (a) they should not consider the charges under 22 D. C. Code § 2601.
[2] On rebuttal, the prosecution called Joel Dean, the FBI agent who had been assigned to investigate Walker's escape in August 1976. He testified that, under standard Bureau practice, he would have been notified of any contact made by Walker with the FBI. According to Dean, he never was informed of any such contact. App. 203-204.
[3] Respondents asked the District Court to give the following instruction:
"Coercion which would excuse the commission of a criminal act must result from:
"1) Threathening [sic] conduct sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
"2) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
"3) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
"4) The defendant committed the act to avoid the threatened [sic] harm."
[4] This hierarchy does not attempt to cover those offenses where criminal liability is imposed in the absence of any mens rea whatsoever. Such "strict liability" crimes are exceptions to the general rule that criminal liability requires an "evil-meaning mind." Compare Morissette v. United States, 342 U. S. 246, 250-263 (1952), with United States v. Dotterweich, 320 U. S. 277, 280-281, 284 (1943). Under the Model Penal Code, the only offenses based on strict liability are "violations," actions punishable by a fine, forfeiture, or other civil penalty rather than imprisonment. See Model Penal Code § 2.05 (1) (a). See also LaFave & Scott 218-223.
[5] Quoting id., at 196.
[6] This omission does not mean, of course, that § 751 (a) defines a "strict liability" crime for which punishment can be imposed without proof of any mens rea at all. As we held in Morissette v. United States, supra, at 263, "mere omission [from the statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced." See also United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978).
[7] Under the Model Penal Code, a defendant is guilty of escape if he acts even recklessly toward the material elements of the offense, since § 2.02 (3) provides that, unless otherwise provided in the definition of the offense, an element of any offense "is established if a person acts purposely, knowingly or recklessly with respect thereto." S. 1, a proposed revision of the Federal Criminal Code, would have imposed liability on an escapee "if (1) he is reckless as to the fact that he is subject to official detention, that is, he is aware that he may be in official detention . . . but disregards the risk that he is in fact in official detention, and (2) knowingly leaves the detention area or breaks from custody." S. Rep. No. 94-00, at 334. As noted earlier, we do not have to decide whether or under what circumstances an escapee can be held liable under § 751 (a) if he acted only recklessly with respect to the material elements of the offense. See supra, at 407.
[8] See also R. I. Recreation Center, Inc. v. Aetna Casualty & Surety Co., 177 F. 2d 603, 605 (CA1 1949) (a person acting under a threat of death to his relatives was denied defense of duress where he committed the crime even though he had an opportunity to contact the police); People v. Richards, 269 Cal. App. 2d 768, 75 Cal. Rptr. 597 (1969) (prisoner must resort to administrative or judicial channels to remedy coercive prison conditions); Model Penal Code § 2.09 (1) (actor must succumb to a force or threat that "a person of reasonable firmness in his situation would have been unable to resist"); id., § 3.02 (1) (actor must believe that commission of crime is "necessary" to avoid a greater harm); Working Papers 277 (duress excuses criminal conduct, "if at all, because given the circumstances other reasonable men must concede that they too would not have been able to act otherwise").
[9] We appreciate the fact that neither the prosecution nor the defense in a criminal case may put in all its evidence simultaneously, and to the extent that applicable rules of case law do not otherwise preclude such an approach, a district court is bound to find itself in situations where it admits evidence provisionally, subject to that evidence being later "tied in" or followed up by other evidence that makes the evidence conditionally admitted unconditionally admissible. In a civil action, the question whether a particular affirmative defense is sufficiently supported by testimony to go to the jury may often be resolved on a motion for summary judgment, but of course motions for summary judgment are creatures of civil, not criminal, trials. Thus, when we say that in order to have the theory of duress or necessity as a defense submitted to the jury an escapee must "first" offer evidence justifying his continuing absence from custody, we do not mean to impose a rigid mechanical formula on attorneys and district courts as to the order in which evidence supporting particular elements of a defense must be offered. The convenience of the jurors, the court, and the witnesses may all be best served by receiving the testimony "out of order" in certain circumstances, subject to an avowal by counsel that such testimony will later be "tied in" by testimony supporting the other necessary elements of a particular affirmative defense. Our holding here is a substantive one: an essential element of the defense of duress or necessity is evidence sufficient to support a finding of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force. As a general practice, trial courts will find it saves considerable time to require testimony on this element of the affirmative defense of duress or necessity first, simply because such testimony can be heard in a fairly short time, whereas testimony going to the other necessary elements of duress or necessity may take considerably longer to present. Here, for example, the jury heard five days of testimony as to prison conditions, when in fact the trial court concluded, correctly, that testimony as to another essential element of this defense did not even reach a minimum threshold such that if the jury believed it that element of defense could be said to have been made out. But trial judges presiding over indictments based on § 751 (a) are in a far better position than are we to know whether, as a matter of the order of presenting witnesses and evidence, testimony from a particular witness may be allowed "out of order" subject to avowal, proffer, and the various other devices employed to avoid wasting the time of the court and jury with testimony that is irrelevant while at the same time avoiding if possible the necessity for recalling or seriously inconveniencing a witness.
[10] Title 18 U. S. C. § 3290 provides that "[n]o statute of limitations shall extend to any person fleeing from justice." Because an escaped prisoner is, by definition, a fugitive from justice, the statute of limitations normally applicable to federal offenses would be tolled while he remained at large. See, e. g., Howgate v. United States, 7 App. D. C. 217 (1895).
[11] Contrary to the implication of MR. JUSTICE BLACKMUN'S dissent describing the rationale of the necessity defense as "a balancing of harms," post, at 427, we are construing an Act of Congress, not drafting it. The statute itself, as we have noted, requires no heightened mens rea that might be negated by any defense of duress or coercion. We nonetheless recognize that Congress in enacting criminal statutes legislates against a background of Anglo-Saxon common law, see Morissette v. United States, 342 U. S. 246 (1952), and that therefore a defense of duress or coercion may well have been contemplated by Congress when it enacted § 751 (a). But since the express purpose of Congress in enacting that section was to punish escape from penal custody, we think that some duty to return, a duty described more elaborately in the text, must be an essential element of the defense unless the congressional judgment that escape from prison is a crime be rendered wholly nugatory. Our principal difference with the dissent, therefore, is not as to the existence of such a defense but as to the importance of surrender as an element of it. And we remain satisfied that, even if credited by the jury, the testimony set forth at length in MR. JUSTICE BLACKMUN'S dissenting opinion could not support a finding that respondents had no alternatives but to remain at large until recaptured anywhere from one to three and one-half months after their escape. To hold otherwise would indeed quickly reduce the overcrowding in prisons that has been universally condemned by penologists. But that result would be accomplished in a manner quite at odds with the purpose of Congress when it made escape from prison a federal criminal offense.
[1] The rebuttal testimony described by the Court, ante, at 399, n. 2, indicates that Walker was probably not telling the truth; but in deciding whether Walker's testimony was sufficient, I assume its veracity.
[2] Compare, for example, Hutto v. Finney, 437 U. S. 678, with Bell v. Wolfish, 441 U. S. 520.
[3] See Estelle v. Gamble, 429 U. S. 97, 116-117 (STEVENS, J., dissenting).
[4] See Houchins v. KQED, Inc., 438 U. S. 1, 19 (STEVENS, J., dissenting); Jones v. North Carolina Prisoners' Union, 433 U. S. 119, 138 (STEVENS, J., dissenting in part); Morales v. Schmidt, 489 F. 2d 1335, 1344 (CA7 1973) (Stevens, J., dissenting), modified, 494 F. 2d 85, 87 (CA7 1974) (en banc) (Stevens, J., concurring).
[5] See, e. g., Harris v. Pate, 440 F. 2d 315 (CA7 1971). Cf. Meachum v. Fano, 427 U. S. 215, 229 (STEVENS, J., dissenting).
[6] See, e. g., Procunier v. Navarette, 434 U. S. 555, 568 (STEVENS, J., dissenting).
[7] See Bell v. Wolfish, supra, at 584-585 (STEVENS, J., dissenting).
[8] It would be unwise, and perhaps counterproductive, to immunize escapes that would otherwise be unlawful in the hope that they would motivate significant reforms. "An unselfish motive affords no assurance that a crime will produce the results its perpetrator intends." United States v. Cullen, 454 F. 2d 386, 392, n. 17 (CA7 1971). Minimizing the risk of escape is, of course, the classic justification for imposing rigid discipline within prison walls.
[1] See, e. g., C. Silberman, Criminal Violence, Criminal Justice 389 (1978); Report on Sexual Assaults in a Prison System and Sheriff's Vans, in 3 L. Radzinowicz & M. Wolfgang, eds., Crime and Justice 223-228 (2d ed. 1977).
[2] See generally Silberman, supra, at 379-382, 386-392; C. Bartollas, S. Miller, & S. Dinitz, Juvenile VictimizationThe Institutional Paradox (1976); C. Weiss & D. Friar, Terror in the Prisons (1974); O. Ballesteros, Behind Jail Bars 26-27 (1979); M. Luttrell, Behind Prison Walls 64-65 (1974).
[3] E. g., Weiss & Friar, supra, at 183-184 (youth having epileptic seizure sprayed with tear gas, resulting in severe trauma); G. Mueller, Medical Services in Prison: Lessons from Two Surveys, in CIBA Foundation Symposium 16, Medical Care of Prisoners and Detainees 7, 11-16 (1973); J. Mitford, Kind & Usual Punishment 135 (1973); Univ. of Pa. Law School, Health Care and Conditions in Pennsylvania's State Prisons (1972), reprinted in ABA Comm'n on Correctional Facilities and Services, Standards and Materials on Medical and Health Care in Jails, Prisons, and Other Correctional Facilities 71 (1974); Report of the Medical Advisory Committee on State Prisons to Comm'r of Correction and Sec'y of Human Services, Commonwealth of Mass. (1971), reprinted in ABA Standards and Materials 89.
[4] See, e. g., Weiss & Friar, supra, at 54-60, 163-164, 176-181, 188, 199-200, 222.
[5] See, e. g., Note, Escape From Cruel and Unusual Punishment: A Theory of Constitutional Necessity, 59 B. U. L. Rev. 334, 358-360 (1979); Landman v. Royster, 333 F. Supp. 621, 633-634 (ED Va. 1971); Sostre v. Rockefeller, 312 F. Supp. 863, 869 (SDNY 1970), rev'd in part, modified in part, aff'd in part sub nom. Sostre v. McGinnis, 442 F. 2d 178 (CA2 1971) (en banc), cert. denied sub nom. Sostre v. Oswald, 404 U. S. 1049 (1972); Mitford, supra, at 260-262.
[6] See, e. g., R. Goldfarb, Jails: The Ultimate Ghetto 325-326 (1975) (Official of Oklahoma Crime Commission describes gang rape and concludes: "[if the kid tells the guards] . . . his life isn't worth a nickel"); State v. Green, 470 S. W. 2d 565, 569 (Mo. 1971) (dissenting opinion), cert. denied, 405 U. S. 1073 (1972).
The alleged facts in this case appear to be typical. Respondent Bailey filed suit in the Superior Court of the District of Columbia to "stop the administrators from threatening my life." App. 176. Bailey testified that the suit caused the guards to threaten him in an attempt to persuade him to withdraw the action, to beat him, and to transfer him to the mental ward. Id., at 154-155. Bailey's suit subsequently was dismissed with prejudice. Brief for Respondents 15-16, n. 7.
[7] "Q Why didn't you surrender yourself?
"A I was in fear of my life. I know that if I turned myself in I would still be under the threats of death. Always knew that the FBI wanted to kill me, after I escaped, so I was in limbo. I didn't know what to do. I did have some people call to the officials at the jail on several occasions.
"Q Let me ask you a question: You stated that you never surrendered yourself, because you were still fearful of the threats?
"A That is right.
"Q Did you understand where you would be returned to?
"A Yes, sir.
"Q Where?
"A The new detention center, 1901 D Street, Southeast.
"Q What section?
"A Northeast 1.
"Q Did you know who the guards would be?
"A The same officers that was there before I left.
"Q Did you ever hear that the FBI was looking for you?
"A Yes, I did.
"Q Didn't you feel that you could tell the FBI that you didn't want to return to the D. C. Jail in Northeast 1?
"A No. The FBI was telling my people that they was going to shoot me." App. 175-176.
[8] "Q Once you left the jail, Mr. Cooley, did you make any attempt to notify anybody in authority to say you were out and did you make any attempt to notify anybody that you were out?
"A Yeah.
"Q To whom?
"A Like I ain't do it per se. But, like when I went home, you know, my people called and I told them that I had, I told them what happened. Why I had done it. They was mad. I told them why I had done it. They understood, but they called and never got in touch with anybody.
"Q Did you ever make any attempt to call anybody, yourself?
"A I don't know nobody to call. I'm thinking like this here: They don't like me in the jail. Ain't nobody I can call.
"Q Why did you not call anybody at the jail?
"A For what?
"Q Did you feel that there would be any purpose in doing that?
"A It wouldn't have been none. They probably came and got me, and then make me try to run and they shoot me in half when they come and get me.
"Q So you feared for your life. You could not call for that reason?
"A That is right.
"Q Did you ever leave Washington, D. C., after you left the jail?
"A No." Id., at 119.
[9] The defendant Walker:
"Now, there is one more issue that I want to briefly touch on here and that is the fact that after I was released from the detention facility I did in fact contact the proper authorities. I contacted the FBI on a number of occasions. As a matter of fact I kept a constant rapport with the FBI. I had people who had told me that they had brought this information to my sisters that the FBI said that if they ran down on me they was going to kill me. So, in actuality I was never out of immediate danger. I was never out of immediate threat of losing my life. If I would have given myself up I had this FBI threat to contend with and I also had to go back over to the same jail that I had just left from, and this was the reason that I consequently never turned myself into the authorities. That is my testimony.
.....
"CROSS-EXAMINATION
"Q Mr. Walker, do you know the names of the individuals in the FBI that you retained this constant rapport with during the course of your escape?
"A One of them was an Officer Troy or Fauntroy, or something of that nature. I don't know if that is his exact name or not.
"Q When did you call him, sir?
"A I called him the second day after I was out, and after that I had occasion to call him on several different occasions.
"Q Did you identify yourself at those times?
"A Yes, I identified myself.
"Q Did you indicate where you were?
"A No, I didn't indicate where I was.
"Q Did you tell him that you were going to surrender yourself?
"A I told him that I would surrender myself if I wasn't being subjected to the same conditions and put on the same penitentiary that I had just left from.
"Q How many days did you call this gentleman?
"A I don't know. I called him two or three different times during the period that I was in the streets.
"Q You were out until December 13th, is that correct?
"A I think that is the date.
.....
"Q Now, sir, where did you make the phone call from to the FBI?
"A I made the first one from a public phone booth.
"Q How did you know what number to call, sir? Did you look it up in the directory?
"A I looked it up in the directory.
"Q Did you ask for anybody in particular at the FBI?
"A No, I just asked to speak to someone on the warrant squad or someone who was connected with escapees.
"Q Would the name Fluharty, does that ring a bell? Would that name Fluharty ring a bell with you as the name of a gentleman you may have spoken to, if you spoke to someone?
"A Sounds halfway familiar.
"Q Exactly what did you tell him, sir?
"A I explained to him that I was one of the four gentlemen that had escaped from the detention facility on August 26th, because of the conditions that existed there.
"I explained to him how terminal the conditions were there and asked him was it any kind of way that I could get with him to make some type of arrangements as far as turning myself in, if I wouldn't have to go back to the detention facility at 1901 D Street, Southeast and also asked him had there been anything issued concerning, or had he told a man named Earl Berman, whether or not the FBIor, did he have knowledge that anybody at the FBI had told Mr. Earl Berman that he had intended to kill me if I was arrested.
"Q Who is Earl Berman, sir?
"A Earl Berman is a personal friend of mine.
"Q Are you saying that Mr. Berman told you that the FBI was going to kill you?
"A Yes, he did. He didn't tell me, but he told my sister and my sister related this information to me.
"Q So, you heard it third-hand?
"A Yes, I heard it second-hand.
.....
"BY MR. SCHAARS:
.....
"Q Now, sir, when exactly was the first time that you called Agent Fluharty or someone by the name of Fauntroy with the FBI?
"A The second day I was out.
"Q Would that be on the 28th, sir?
"A That would be on the 28th.
"Q Do you recall about what time of day it was, sir?
"A I don't know. It was in the early morning hours. I would say have to be between 4:00 and 6:00.
"Q A. M., sir?
"A A. M.
"Q And, do you know [how] long your conversation lasted at that point?
"A It hadno longer than a three-minute duration at the most.
"Q And you did identify yourself?
"A I did identify myself.
"Q When was the second time that you spoke to somebody from the FBI?
"A Approximately a week and a half later.
"Q Would it be fair to say that that would be about ten days later, sir?
"A I think that would be fair.
"Q To whom did you speak at that time?
"A To the same person.
"Q Did you ask for him at that time, sir or
"A Yes, I did. I had called the FBI building previous to that, told them that I was going to call.
"Q Do you recall what time of day you called at that time, sir?
"A It was about 2:00 in the afternoon.
"Q How long did your conversation take at that time?
"A No more than a three-minute duration then.
"Q Did you identify yourself, sir?
"A Yes, I identified myself.
"Q At that time did you indicate to Agent Fluharty that you were going to turn yourself in?
"A I indicated to him if he could work out the conditions for which I wanted to turn myself in, I would turn myself in.
"Q What were the conditions?
"A Those conditions would be the fact that I wouldn't be harmed by any agent of the FBI, I wouldn't be taken back to the detention facility, 1901 D Street, Southeast.
"Q Did there come a time that you spoke to somebody from the FBI again?
"A Yes, there did.
"Q When was that, sir?
"A I would say that would have been about a month later.
"Q Would that be mid-October, sir, or late October or mid-November? I'm sorry, I don't mean to confuse you.
"A It was init was in October. I don't know whether it was late orIt was aroundit was in October, around, between the middle and first part of October.
"Q Now, whom did you speak to at that time, sir?
"A The same guy.
"Q Agent Fluharty?
"A I assume that is his name.
"Q It was somebody on the warrant or escape squad that you were speaking to each time, sir?
"A I assume that he was.
"Q Did you ask specifically for somebody on that squad the first time you called?
"A The first time I called I did.
"Q And the second time, did you ask for the same agent by name?
"A Yes, I did.
"Q And the third time, did you ask for the same agent by name?
"A Yes.
"Q Now, sir, on that third occasion did you offer to come down and turn yourself in?
"A Under certain specified conditions.
"Q The same conditions as you have indicated on the two prior occasions?
"A The very same conditions.
"Q Now, sir, did there come a time when you called the FBI again?
"A To my recollection. no.
"Q So, from the beginning to the middle of October, whenever that third phone call occurred, to December 13th, you had no contact with the FBI?
"A To my recollection, no.
"Q Did you call any other law enforcement agency during that period of time, sir?
"A No, I didn't.
"Q Did you ever appear in any court of the District of Columbia to turn yourself in during that period of time?
"A No, I didn't.
"Q Did you ever talk to a minister or a priest or any kind of religious leader in an effort to turn yourself in during that period of time?
"A Yes, I did. I'm a minister myself.
"Q You are, sir? Did you speak to another member of your faith, a minister?
"A Yes, I did.
"Q To whom did you speak, sir?
"A I don't want to give his name at this time. I don't want to incriminate him as far as anything, as far as my escape and everything is concerned. You'd have him up here for a charge.
"Q Did you tell that gentleman that you were going to turn yourself in?
"A I told himI had discussed turning myself in with a member of the FBI and I thought very seriously about it, if the conditions that I had specified to you could be worked out.
"Q When you spoke to this gentleman from the FBI, did he ever indicate that he would agree to those conditions?
"A No, he didn't.
"Q Did he indicate that he would agree with anything?
"A He indicated that he would agree that I wouldn't be harmed by any members of the Federal Bureau of Investigation, but that he couldn't agree that I wouldn't be taken back to the detention facility, 1901 D Street.
"Q So, he did promise you that the FBI wasn't going to hurt you?
"A Yes, he told me that the FBI wouldn't hurt me.
"Q Did you have any contact with a warrant squad officer of the District of Columbia Department of Corrections during your period of elopment [sic]?
"A Not to my recollection, unless he is part of that warrant squad." App. 195-200.
[10] In addition to the sources cited above, see American Assembly, Prisoners in America (1973); S. Sheehan, A Prison and a Prisoner (1978); V. Williams & M. Fish, Convicts, Codes, and Contraband (1974); Inside Prison American Style (R. Minton, ed. 1971); T. Murton, The Dilemma of Prison Reform (1976); American Friends Service Committee, Struggle for Justice, A Report on Crime and Punishment in America (1971); Behind Bars: Prisoners in America (R. Kwartler ed. 1977); B. Bagdikian & L. Dash, The Shame of the Prisons (1972); Note, 13 Ga. L. Rev. 300 (1978); Note, Intolerable Conditions as a Defense to Prison Escapes, 26 UCLA L. Rev. 1126 (1979); Comment, 127 U. Pa. L. Rev. 1142 (1979); Note, 54 Chi.-Kent L. Rev. 913 (1978); Comment, 26 Buffalo L. Rev. 413 (1977); Plotkin, Surviving Justice: Prisoners' Rights To Be Free from Physical Assault, 23 Cleve. St. L. Rev. 387 (1974); Note, 45 S. Cal. L. Rev. 1062 (1972); Note, 36 Albany L. Rev. 428 (1972).
|
157 S.E.2d 211 (1967)
271 N.C. 611
STATE of North Carolina
v.
J. B. MILLER.
No. 330.
Supreme Court of North Carolina.
October 18, 1967.
*212 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George Goodwyn for the State.
Paul L. Beck, Lenoir, for defendant appellant.
PER CURIAM.
Defendant was arrested May 9, 1967, on six warrants issued by the District Court of Caldwell County. These warrants charged the felonies subsequently charged in the said indictments. After preliminary hearing on May 12, 1967, the district court found probable cause and ordered defendant to appear at said May 1967 Criminal Session of Caldwell Superior Court. Mr. Beck was appointed counsel on May 15, 1967. The pleas of guilty were tendered and accepted on May 16, 1967.
Although no exceptions were noted during the proceedings in the superior court, assignments of error entered on behalf of defendant by his court-appointed counsel in connection with the appeal are as follows: (1) The failure of the District Court of Caldwell County to appoint counsel for defendant at his preliminary hearing when defendant stood charged with six felony offenses; (2) the acceptance of defendant's pleas of guilty the day following the court's appointment of counsel to represent him; and (3) the acceptance of defendant's pleas of guilty without hearing evidence from any of the persons listed as witnesses against defendant.
Nothing in the record shows defendant was in any way prejudiced by the fact that he was not represented by counsel at his preliminary hearing. In the present factual situation, the preliminary hearing "was not such a `critical stage' of the proceeding as to require the presence of counsel," and the failure to supply counsel for such preliminary hearing was not "a deprivation of any constitutional right of appellant." See Gasque v. State, 271 N.C. 323, 156 S.E.2d 740.
Nothing in the record indicates defendant or his counsel requested or desired *213 a continuance of the case. On the contrary, the record shows affirmatively that the pleas of guilty were entered freely, understandingly and voluntarily.
It does not appear affirmatively whether, after tender and acceptance of defendant's pleas of guilty, the court heard testimony of persons listed as State's witnesses. Proof of the charges in the second counts of the six bills of indictment was rendered unnecessary by defendant's pleas of guilty thereto. State v. Caldwell, 269 N.C. 521, 524, 153 S.E.2d 34, 36; State v. Dye, 268 N.C. 362, 150 S.E.2d 507; 21 Am. Jur.2d, Criminal Law § 495; 22 C.J.S. Criminal Law § 424(4).
It is noteworthy that the active (concurrent) sentences imposed were within the permissible punishment provided in G.S. § 14-120 based on defendant's plea of guilty in respect of any one of the six indictments.
No error having been shown, the judgments of the court below are affirmed.
Affirmed.
|
233 S.W.3d 324 (2007)
Ex parte Brodgerick Tredon ELLIS, Applicant.
No. AP-75443.
Court of Criminal Appeals of Texas.
September 12, 2007.
*325 Celia Sams, Rowlett, for Appellant.
Craig Stoddart, Assistant District Atty., Rockwall, Matthew Paul, State's Atty., Austin, for State.
OPINION
KEASLER, J., delivered the opinion for a unanimous Court.
Brodgerick Tredon Ellis was convicted by a jury of possession of cocaine. After his appeal was affirmed, Ellis filed an application for a writ of habeas corpus claiming that his trial counsel rendered constitutionally ineffective assistance when he offered evidence of Ellis's prior criminal history during the guilt phase of his trial. We disagree and deny relief.
Factual and Procedural Background
Brodgerick Tredon Ellis was a passenger in a truck driven by Kedrian Davis. Rockwall County Deputy Donahoe stopped Davis for failure to display a front license plate and failure to maintain a single lane of traffic. Deputy Donahoe testified that when he pulled the truck over, Ellis became immediately "confrontational" and "aggressive." Deputy Donahoe asked Davis to step out of the truck and questioned him about their travel. Deputy Donahoe then asked Ellis to get out of the truck, asked him the same question, and received an answer that was inconsistent with Davis's statement. Deputy Donahoe checked the ownership of the truck and discovered that it was not registered to either Davis or Ellis. When the prosecutor asked Deputy Donahoe if he looks for "specific clues or red flags" during a traffic stop that indicate "that certain criminal activity may be taking place[,]" Deputy Donahoe stated "nervousness is a big one [and][t]hird party owner to a vehicle." Explaining why third-party ownership is *326 important to trafficking drugs, Deputy Donahoe stated that "if they're caught with narcotics and they own the vehicle outright, we can seize the vehicle from them. So a lot of times they'll rent a car or be in someone else's car so we can't take it from them."
Due to the circumstances surrounding the stop of Davis and Ellis, Deputy Donahoe requested and received consent from Davis to search the truck. Deputy Donahoe searched the truck and found what he described as two "cookies," each in a separate plastic bag, in the middle of the cab behind the front seats. Deputy Donahoe testified that neither Davis nor Ellis showed any shock or surprise when he discovered the substance and performed a field test, which indicated that the "cookies" were cocaine. When Deputy Donahoe asked Davis if he knew anything about the cocaine, Davis replied that "one of his hoes must have put it there." And when Deputy Donahoe asked Ellis the same question, Ellis stated that "he didn't know anything about it." Deputy Donahoe testified that when he searched Ellis and Davis, he discovered a large amount of cash on Davis and twenty-six dollars on Ellis.
When defense counsel began his cross-examination of Deputy Donahoe, he immediately referred to the deputy's report from the traffic stop. He then offered the report into evidence. The prosecutor noted that the report was inadmissible, stating "an offense report is not admissible,[1] but we'll let it in. We have no objection." The trial judge admitted the report into evidence.
Defense counsel then cross-examined Deputy Donahoe by referencing specific parts of the report. Defense referred to the part of the report in which Davis admitted to Deputy Donahoe that he was on probation for possession of marijuana. Using the report on redirect, the State was able to elicit testimony about Ellis's criminal history.
Prosecutor: So why don't we let the jury hear everything that the defense didn't bring to you. And would you just read start at line No. 4 and read the whole line for the jury.
Deputy Donahoe: "Davis advised me that he was currently on probation for possession of marijuana, 4 ounces to 5 pounds. Ellis advised me that he was on parole for robbery, but a criminal history check from dispatch showed only a murder charge."
. . .
Prosecutor: So you did have in your report that Brodgerick Ellis, the person you later found out was on parole for robbery and had a charge for murder, was the one that was confrontational with you; is that correct?
Deputy Donahoe: Correct.
Just days before Ellis's trial, Davis entered into a plea agreement with State. The plea agreement provided that Davis would plead guilty to possessing part of the cocaine seized by Deputy Donahoe and testify truthfully against Ellis and that the State, in exchange, would recommend three years' imprisonment and a fine of $1,000. The agreement further provided that Davis would be subject to an aggravated perjury charge if he did not testify truthfully.
At Ellis's trial, on direct examination by the prosecutor, Davis admitted that he accepted the plea agreement and testified about its terms. Davis also linked Ellis to one of the cocaine "cookies" found in the truck. Davis testified that it was Ellis's idea to go to Dallas and purchase cocaine *327 and that Ellis had arranged the purchase. Davis stated that he borrowed the truck and offered to drive because Ellis "had stitches in his leg." According to Davis, each of them purchased a "cookie" and then placed them together in the truck between the driver and passenger seats before heading back to Paris, Texas.
The jury convicted Ellis of possession of a controlled substance in an amount of four grams or more but less than two hundred grams, and the trial judge sentenced him to fifteen years' confinement. Ellis appealed, arguing that: (1) "his conviction was improperly based on uncorroborated accomplice witness testimony"; and (2) "the trial court erred in failing to grant a mistrial due to the prosecutor's comment on [Ellis's] failure to testify."[2] Finding no merit to either argument, the Dallas Court of Appeals affirmed the trial court's judgment.[3]
Habeas Proceedings
Ellis filed this application for a writ of habeas corpus alleging, among other things, that his trial counsel rendered ineffective assistance. Ellis claims in his second ground for review that his trial counsel's decision to introduce the police report alone denied him effective assistance of counsel because it allowed the jury to hear about his conviction for robbery and a murder charge, both of which would have otherwise been inadmissible. Ellis also points to several additional specific instances of alleged deficient conduct by his trial counsel, which he asserts cumulatively prejudiced his defense:
Trial counsel failed to interview the accomplice witness, Kedrian Davis, and therefore failed to discover that Davis refused consent to search to the officer. This could have been used to file a motion to suppress the evidence seized during the search.
Trial counsel failed to object to tampering with the cocaine evidence.
Trial counsel failed to challenge the State's failure to establish a proper chain of custody for the cocaine evidence.
Trial counsel failed to object to the prosecutor's false statements to the jury that Ellis lived in Paris and that he traveled over one hundred miles round trip to Dallas County to pick up the cocaine. Ellis contends he actually lived in Dallas County, so the prosecutor's statement was false, and trial counsel should have introduced evidence that would have established Ellis's residence as Dallas County.
Trial counsel failed to impeach the credibility of the accomplice witness by highlighting the fact that the accomplice witness was on probation for possession of marijuana to the jury.
Trial counsel failed to investigate Rockwall County's jury duty procedures, which Ellis asserts are discriminatory against African-Americans.
Trial counsel conducted an ineffectual voir dire.
Trial counsel failed to request a limiting instruction under Texas Rule of Evidence 404 regarding the extraneous offenses in Ellis's criminal history.
Trial counsel failed to show the letter written to Ellis by the accomplice witness asking Ellis to "take the rap" for the offense, which Ellis asserts "clearly established who[se] drugs they *328 were," to the prosecutor before trial. If trial counsel had done so, Ellis asserts that the prosecutor may not have pursued charges against him.
Trial counsel failed to timely file a notice of appeal on Ellis's behalf, which Ellis had requested.
Trial counsel failed to effectively cross-examine the accomplice witness by failing to establish the inconsistencies in his testimony.
Because we determined that additional information was necessary to resolve Ellis's claims, we remanded Ellis's case to the convicting court for findings of fact and conclusions of law and an affidavit from trial counsel.
On remand, the trial judge held an evidentiary hearing at which Ellis's trial counsel testified. Counsel explained that he did not have a "perfect recollection" of Ellis's case, primarily because he had been undergoing treatment for cancer. But counsel attempted to answer most of Ellis's allegations of ineffective assistance.
Regarding the introduction of the police report, counsel explained that he intended to use the report to impeach the testimony of Davis "relative to [Ellis] having possessed drugs, having had anything to do with drugs." He also testified that he intended to show that Ellis's "history was one of robbery. He had been convicted of robbery. He had served his time. He had made parole early. And to me, that's an argument that he has been to a degree an exemplary person[.]" Counsel stated that he wanted to show the jury that "there's nothing to connect [Ellis] or tie him to these drugs except the testimony of Mr. Davis who had cut a deal" and that Ellis had been honest with the police at the scene by revealing his robbery conviction. He claimed that, short of Ellis testifying which he declined to do counsel knew of no way to impeach Davis other than by using the police report. Summarizing his strategy on offering the police report, counsel explained:
I thought the police report was a way to establish, among other things, that there's nothing in [Ellis's] background as of the day he was arrested to indicate he had any involvement in drugs and that the only reason he was in that car was to catch a ride with Mr. Davis and that the only person who ever said that Mr. Ellis had any involvement in drugs was the gentleman he was riding with. And all that was part of the police report.
. . .
It was better to have something said to the jury about [Ellis's] prior conduct than to say nothing at all. If you say nothing at all, the jury may assume, well, he didn't want to talk because he's been dealing in drugs. So by showing his record, by saying this man was convicted, he did his time, he's an exemplary parolee, to me that's saying this man hasn't done anything but catch a car ride with this man to wherever he was going. That's all that was available.
. . .
I was going by way of suggestion to the jury that the absence of anything to the contrary the absence of any evidence to the contrary would only lead to one conclusion, that this person is all right. He's a good he's trying to make good on his parole. That was what I was trying to show.
. . .
Based on what we had, as I said, through innuendo, assumption, or whatever, I wanted that jury to start to believe that this was a person who would *329 not have done what they said he did, because there's nothing to imply that he did it except the fact that he was in the car.
But counsel also testified at the writ hearing that he believed that "if the jury read that [Ellis had a murder charge in his criminal record,]" Ellis would be "a gone goose." Counsel admitted that the police report could not have been offered by the State at the guilt phase of trial, though he argued that his admission was looking in "hindsight."
Counsel also claimed that he was being asked to consider his strategy in hindsight when the State questioned him at the writ hearing: "So your testimony . . . is that you put this police report into evidence to show some good conduct on Brodgerick Ellis' part." In response, counsel stated:
Let me put it this way, because you're asking me now to testify in hindsight, but I'm sure that was the purpose. But more important than that, this record shows that this man has a clean record since making parole. And that's what I was trying to get into the record, that he was clean[.]
After the hearing, the trial judge entered the following relevant findings of fact:
The [police] report, including the prior conviction[,] was offered into evidence by defense counsel and admitted without objection. As such, there is no legal impediment to the admission of Applicant's prior conviction.
Defense counsel utilized the police report both on cross examination and in closing argument to impeach the credibility of co-actor, Kedrian Davis. Defense counsel further utilized the report to establish that his client (Applicant) had been honest with the arresting officer by admitting that he was on parole for robbery, that he was an exemplary parolee, and to show that although his client had a criminal history, he had no such history for drug offenses.
It appears from the record at trial as well as from defense counsel's testimony at the . . . hearing that the police report was intentionally offered into evidence as part of a trial strategy to impeach the State's witness, Kedrian Davis, and to bolster Applicant's credibility.
The trial judge also entered conclusions of law. Relevant to Ellis's claim concerning the admission of the police report, the trial court concluded:
Defense counsel's decision to introduce the police report[,] which resulted in the publication of Applicant's criminal history to the jury[,] was part of an intentional strategy to impeach the State's primary witness, accomplice Kedrian Davis[,] and to bolster the credibility of the Defendant. While such strategy is perhaps subject to question and could have conceivably caused some degree of prejudice to [Ellis], there was at least a reasonable basis and explanation for employing the strategy.
Defense counsel's overall conduct at trial[] was consistent with and did not fall below the standard of reasonable legal representation.
After reviewing the record, we filed and set Ellis's application for a writ of habeas corpus to determine whether Ellis's trial counsel rendered ineffective assistance. We agree with the trial judge's conclusion and hold that Ellis was not denied effective assistance of counsel at trial.
Law and Analysis
"[T]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on *330 as having produced a just result."[4] In analyzing claims of ineffective assistance under the Sixth Amendment, we apply the two-part framework announced by the United States Supreme Court in Strickland v. Washington.[5] Under this framework, Ellis must prove by a preponderance of the evidence that: (1) "his counsel's performance was deficient"; and (2) "there is a `reasonable probability' one sufficient to undermine confidence in the result that the outcome would have been different but for his counsel's deficient performance."[6]
To establish deficient performance, Ellis must show that "counsel was not acting as `a reasonably competent attorney,' and his advice was not `within the range of competence demanded of attorneys in criminal cases.'"[7] Ellis must overcome the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance."[8] Therefore, Ellis must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."[9] Although the Supreme Court has said that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[,]"[10] an attorney's cited strategy does not prevent us from determining whether a specific act or omission was "outside the wide range of professionally competent assistance."[11] The reasonableness of an attorney's performance is judged according to the "prevailing professional norms"[12] and includes an examination of all the facts and circumstances involved in a particular case.[13] Reviewing courts "must be highly deferential to trial counsel and avoid the deleterious effects of hindsight."[14]
Under the second part of the Strickland analysis, Ellis must establish that the "constitutionally deficient performance prejudiced his defense that is, he must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"[15] "A reasonable probability is a probability sufficient to undermine confidence in the *331 outcome."[16] When making this determination, any constitutionally deficient acts or omissions will be considered in light of the "totality of the evidence before the judge or jury."[17]
Moreover, when considering a trial judge's findings of fact, we give "almost total deference" to those findings when they are supported by the record, "especially when those findings are based upon credibility and demeanor."[18] We review a trial judge's conclusions of law de novo.[19]
In his brief, Ellis argues that trial counsel's decision to introduce the police report was not a sound trial strategy. He contends that any advantage gained by impeaching Davis's credibility with the fact he was on probation for marijuana possession was outweighed by the admission of Ellis's criminal record, "particularly when it refers to an unsubstantiated murder charge[.]" Ellis maintains that trial counsel's other reasons "to show that Applicant was an `exemplary person[,]' made parole early, and had no prior convictions for drugs" are not supported by any information contained in the police report, and therefore counsel's decision to offer the report "cannot be dismissed as a rationale or sound trial strategy."
To the contrary, the State argues that, although counsel's strategy was unsuccessful, it was not unreasonable. According to the State, counsel "introduced the report only after weighing the negative implications of applicant's criminal history against the benefits of offering the report." The State argues that counsel "determined it would be better to use the report to impeach co-actor Davis and bolster the credibility of his client than to say nothing and let the jury speculate as to [Ellis's] role in the offense."
We conclude that trial counsel's strategic reasons for offering Deputy Donahoe's police report were not unreasonable according to prevailing professional norms as required under the first prong of the Strickland framework. Although the defensive course chosen by counsel was risky, and perhaps highly undesirable to most criminal defense attorneys, we cannot say that no reasonable trial attorney would pursue such a strategy under the facts of this case.[20]
Deputy Donahoe's testimony supplied only circumstantial evidence of Ellis's knowledge. Because the cocaine was discovered behind the console between the driver and passenger seats of the truck, his testimony left unresolved the issue of which individual, Davis or Ellis, was in possession of the cocaine. The testimony of Davis, an accomplice, although sufficiently corroborated by non-accomplice evidence,[21] was the only direct evidence connecting Ellis to one of the cocaine "cookies" seized by Deputy Donahoe. Ellis's conviction depended entirely on the credibility of Davis. The theory of the *332 case offered by counsel was that Ellis was in the wrong place at the wrong time. Counsel's trial strategy therefore was to convince the jury that it was Davis who possessed both of the "cookies." To effectuate this strategy, counsel had to undermine Davis's credibility and, at the same time, bolster that of his client. Our review of the trial record shows that counsel, consistent with his testimony at the evidentiary hearing, utilized Davis's and Ellis's criminal histories to accomplish these objectives.
We begin by examining counsel's use of Davis's prior possession of marijuana offense. During his cross-examination of Davis, counsel honed in on the prior possession offense and asked Davis to identify where he had purchased the marijuana, who he had purchased it from, and how much he had purchased. In pursuing this line of questioning, counsel attempted to establish a prior connection between Davis and the cocaine dealer in Dallas and to emphasize the amount of marijuana Davis purchased. Davis testified that he purchased a pound of marijuana from a man named Fox somewhere near New Boston. While Davis was answering the questions, counsel, in response to the prosecutor's relevancy inquiry, stated, "We're talking about the fact that this guy's a drug dealer, your Honor." The trial judge noted that the subject had been "opened up."
In cross-examining Davis, defense counsel also focused on Davis's attempt to convince Ellis to take responsibility for all of the cocaine. In response to a long line of questions from defense counsel, Davis admitted that he had sent a letter to Ellis telling Ellis that he would give money to Ellis's mother and put money in Ellis's prison account if Ellis agreed to take the "rap." In the letter, Davis asked Ellis to take responsibility for cocaine because Davis had children and because he had "a dude waiting to give [him] something big." Seizing on the latter statement, counsel tried to emphasize Davis's continued involvement with drugs:
Defense Counsel: I'm concerned about this `something big' that somebody was to give you. Could it be you were waiting for a big delivery?
Davis: Nah, money.
Defense Counsel: Hunh?
Davis: Money.
Defense Counsel: When you say you're talking about big money, and you weren't working. What were you going to do to get this big money?
Davis: I have friends.
Defense Counsel: You have friends that are drug dealers, aren't they?
Davis: No.
Defense Counsel: And you're a big drug dealer, aren't you?
Davis: Nah.
Defense Counsel: And you wanted this man to go to jail so you can stay out on the street and continue to deal drugs, didn't you?
Davis: No.
Trial counsel attempted to further highlight Davis's involvement with drugs by questioning Davis about the amount of money he had possessed when he was arrested by Deputy Donahoe. The testimony revealed that Deputy Donhoe had seized $1,450 from Davis. Davis testified that the money he used to purchase the cocaine came from selling cocaine and shooting dice. He also stated that $1,450 belonged to his girlfriend and that he had withdrawn it from a credit union account before leaving for Dallas. During cross-examination, defense counsel was able to establish that the money belonged to Davis and that his girlfriend had lied when she had claimed the money was hers after Davis's arrest. Defense counsel then tried *333 to use this to show Davis's knowledge of law relating to forfeiture:
Defense Counsel: Isn't it a fact that this claim that this money belonged to your girlfriend is nothing but for want of a better word, a lie?
Davis: A lie?
Defense Counsel: Yes.
Davis: No.
Defense Counsel: And aren't you saying that to avoid forfeiture?
Davis: No.
Defense Counsel: Just like you said everything else to avoid the consequences of your conduct?
Davis: If they want to take it, they was [sic] to take it.
Counsel raised the forfeiture subject a second time when questioning Davis about the truck:
Defense Counsel: You know if you don't get caught in your own car, there's a chance that the car can't be confiscated or attached or seized. You know that, don't you?
Davis: No, not really. The truck was seized.
Defense Counsel: I mean, but it was impounded. Even if they seize it
Davis: Well, they told me they was going to seize it.
. . .
Defense Counsel: So what you want this jury to believe is that except for the fact you got caught with these drugs, it was your cousin's car that you were in, just coincidentally I suppose. It was your girlfriend's money that you were holding, although you took it out of your account. But you want them to believe that's her money, right? You want the jury to believe that this man over here, Mr. Ellis, rode did he ride to Dallas with you to get the drugs?
In an effort to deflect culpability away from Ellis, defense counsel continuously emphasized Davis's involvement with drugs during his closing argument:
[N]othing objective places those drugs under the control of Brodgerick Ellis, nothing except opinion.
They didn't find the drugs on Brodgerick. They didn't find them under his seat. They found them in the console.
And who talked about ownership of the drugs out there? Not Brodgerick Ellis. Kedrian Davis said, "One of my hoes probably left them in there." And for you all that are familiar with the street life, you know what that term means. And for all of you who are familiar with the life of drug dealers, you know what that term means. Drug dealers make a lot of fast money and they spend a lot of money fast and they spend it on their hoes.
That's all we have about how the drugs got in the car. But it doesn't implicate [Brodgerick Ellis].
. . .
Now we come to Mr. Davis, and I don't know where to start. You heard all the evidence, and what did he say? He said some of everything. But he said, in so many words by his statements, that he was he's not now, because he's in jail but he was a big-time drug dealer. He didn't deal in nickels and dimes. You don't buy 10 pounds of marijuana, 5 pounds of marijuana, or however much he bought, if you're a small-time drug dealer. You're big. And that's my opinion.
*334 . . .
He's on probation for drug dealing, possession. Who possesses 5 pounds of marijuana for their own use? Nobody.
Counsel also referred to the amount of money Deputy Donahoe discovered on Davis and argued its significance in relation to Davis's involvement with drugs:
[T]he majority of the money was in the possession of Kedrian Davis. That's indicative of a drug dealer, because they have large sums of money.
I don't know I shouldn't say this, but I don't know many drug dealers who don't carry, don't have large sums of money. It's the nature of their business to carry large sums of cash in all denominations.
Mr. Davis would have you believe he went to the bank, credit union, and drew out money to buy drugs. Let's assume that he did that for a moment and that the money he had left was his and the money he had left was in the small drug dealer denominations, not the hundred dollar bills that you would expect. But when you're dealing on the street, you have change. You buy you sell the drugs, a $20 rock, a $30 rock, or a $10 rock. And that's the kind of money you have in your pocket, and that's what this man had.
. . .
And here's a man with $26 in his pocket, and he's a drug dealer? And here's a man who on the same day handled $3,000 $4,000. We know he's a drug dealer.
Turning to the letter that Davis sent to Ellis, counsel stated that Davis
wanted to stay out of jail because he was expecting something big. Now, what does that mean? You all watch enough television. You know what that means. It means a big buy is going down. There's going to be big bucks, and I'm going to give you big money if you take this rap and I get out and get money.
And directing the jury's attention to the forfeiture issue, counsel argued that Davis is
smart. He knows how to cover himself and cover his tracks. He borrowed that car. He drove that car. What reason is there, when you think about it, for not driving the car owned by Kedrian Davis? Even if Mr. Ellis could not drive, what reason is there for not driving Mr. Davis' car, other than he didn't want to run the risk of getting caught and having to forfeit his car? Because, you know, we have the forfeit statute. And if you get caught doing certain types of criminal activity, everything used in the commission of that criminal activity would be forfeited.
Our review of the record establishes that Davis's involvement with drugs was a recurring theme throughout counsel's cross-examination of Davis and his closing argument. The admission of Davis's prior possession offense provided the necessary foundation for counsel to develop evidence that ultimately allowed counsel to argue that Davis was a seasoned drug dealer. By depicting Davis this way, counsel was able to strengthen his trial theory that the two "cookies" belonged to Davis.
Next, we turn to counsel's use of Ellis's robbery conviction and murder charge. As the trial court recognized, the admission of the robbery conviction and murder charge "could have conceivably caused some degree of prejudice" to Ellis's defense. Robbery is considered a serious and violent offense. And murder is considered the most serious and violent offense. So, even though Ellis's criminal history, as presented to the jury, did not include any drug-related offenses, it *335 showed that Ellis was a dangerous criminal. A rational jury could have concluded that if Ellis was involved in robbery and murder, he was guilty of possessing cocaine, a less serious and non-violent offense, despite the absence of a criminal history involving drugs.
Nevertheless, the admission of the robbery conviction and murder charge did serve a strategic purpose. Although potentially detrimental on the one hand, their admission was potentially beneficial on the other. Because Ellis's criminal history did not include any drug-related offenses, it diminished the likelihood of his involvement here. When coupled with the evidence and arguments made by counsel concerning Davis's extensive involvement with drugs, Ellis's criminal history strengthened counsel's theory of the case. A rational jury considering both Ellis's and Davis's criminal histories could have concluded that Davis was the sole possessor of the cocaine when weighing the evidence in this case.
Counsel also used Ellis's robbery conviction and parole status to boost Ellis's credibility. Counsel made a point of showing that Ellis had been candid with Deputy Donahoe:
Defense Counsel: Y'all made a big deal out of the fact that he had been charged with murder, didn't you?
Deputy Donahoe: Yeah, I tend to get a little nervous when I find out I'm dealing with someone who's been charged with murder, yes, sir.
. . .
Defense Counsel: You think if he was trying to hide something, he would have told you, "I'm a convict, I'm on parole?" Wouldn't he have lied don't you think?
Deputy Donahoe: Are you asking me if I thought he was trying to hide drugs. Would he not tell me that he was on parole?
Defense Counsel: No, no, I'm just talking about his criminal history period.
. . .
Defense Counsel: Based on your experience as a police officer, don't you find or have you not found that people lie about their criminal history?
Deputy Donahoe: Sometimes, yeah.
Defense Counsel: Yes. Especially someone charged with a crime as serious as you have alleged that Mr. Ellis was charged with?
Deputy Donahoe: I don't come across murder charges that often.
Defense Counsel: And you don't come across people confessing to a murder charge, if he did, do you?
Deputy Donahoe: I wouldn't be in the position for a confession. I mean, I just call for the criminal history from dispatch, and it tells me what they've been charged with.
When considered with counsel's other tactics, the evidence of Ellis's honesty was an additional fact that made counsel's theory of the case more plausible.[22]
We now consider counsel's remaining reasons for admitting the report to show that Ellis was an "exemplary person" because he "made parole early" and was a good parolee. Other than the fact that Ellis told the deputy he was on parole for robbery, the report, as Ellis argues, contains no information about Ellis making early parole or being a good parolee. Counsel failed to offer any evidence to support that conclusion. Counsel did, *336 however, talk about the fact that Ellis had been paroled:
Mr. Ellis previously committed a crime, robbery. He went to jail for robbery. He served his time. As a matter of fact, his time was so good that he got out early. Parole means you've been a model prisoner and we're going to take a chance on completely rehabilitating you so you can get back in society and be a useful citizen. That's what parole is all about.
Counsel, therefore, contrary to his testimony at the writ hearing, did not offer the report to show that Ellis was paroled early. When talking about Ellis having been paroled early it is quite possible that counsel meant to say that he wanted to show that Ellis was released from custody early. Counsel did use Ellis's parole status to demonstrate that Ellis was rewarded for his good conduct while serving his sentence for robbery by being released on parole before completing his sentence. And, it is possible that, in line with counsel's contentions at the evidentiary hearing, the jury could reasonably infer that Ellis had been "exemplary on parole" based on the fact that the State did not present anything negative about Ellis's conduct after his release on parole. Ellis's parole status was used to bolster Ellis's credibility and, consequently, counsel's defensive theory. Therefore, we cannot conclude that counsel's use of Ellis's parole status served no strategic value to Ellis's defense.
We conclude that counsel's decision to offer Deputy Donahoe's report was based on a sound trial strategy. Counsel's strategy, as executed, was designed to persuade the jury that all of the cocaine belonged to Davis. And although the means adopted by counsel were risky, we cannot ignore the fact that counsel's tactics could have achieved the desired result[23] an acquittal for Ellis. Therefore, we agree with the trial judge and hold that Ellis has not shown that counsel's performance was deficient as contemplated by the first Strickland prong.
Finally, after reviewing Ellis's remaining claims of ineffective assistance, we conclude that they are without merit, either as individual claims or cumulatively. Ellis has failed to prove by a preponderance of the evidence that counsel performed deficiently.[24]
Conclusion
We hold that Ellis's trial counsel rendered constitutionally effective assistance and therefore deny all relief.
NOTES
[1] See TEX.R. EVID. 404(b), 802, 803(8)(B).
[2] Ellis v. State, No. 05-02-01851-CR, 2004 Tex.App. LEXIS 295, at *1, 2004 WL 51839, at *1 (Tex.App.-Dallas Jan.13, 2004, no pet.) (not designated for publication).
[3] Id. 2004 Tex.App. LEXIS 295, at *7, 2004 WL 51839, at *3.
[4] Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[5] Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App.2005) (citing Strickland, 466 U.S. at 686, 104 S.Ct. 2052); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986).
[6] Ex parte Chandler, 182 S.W.3d at 353 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
[7] Id. at 354 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
[8] Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.App.1999) (citing Strickland, 466 U.S. at 668, 104 S.Ct. 2052); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994)).
[9] Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim.App.1992) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
[10] Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
[11] Id.; see also Ex parte Robertson, 187 S.W.3d 475, 483-86 (Tex.Crim.App.2006); Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim. App.2001); Ex parte Menchaca, 854 S.W.2d 128, 131-33 (Tex.Crim.App.1993).
[12] Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
[13] Id. at 688, 690, 104 S.Ct. 2052.
[14] Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984)).
[15] Ex parte Chandler, 182 S.W.3d at 354 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
[16] Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
[17] Id. at 695, 104 S.Ct. 2052; Ex parte Nailor, 149 S.W.3d at 130.
[18] Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim.App.2004).
[19] Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim.App.2005).
[20] See Ex parte Ewing, 570 S.W.2d 941, 944 (Tex.Crim.App.1978) ("The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.") (citing Ewing v. State, 549 S.W.2d 392, 395 (Tex.Crim.App.1977)).
[21] Ellis, 2004 Tex.App. LEXIS 295, at *3-5, 2004 WL 51839, at *1-2.
[22] But see Robertson v. State, 187 S.W.3d 475, 484-86 (Tex.Crim.App.2006).
[23] Gutierrez v. State, No. 13-00-438-CR, 2001 Tex.App. LEXIS 7972, at *10, 2001 WL 1554208, at *3 (Tex.App.-Corpus Christi Nov.29, 2001, no pet.) (not designated for publication) ("A daring tactic, although risky, is sometimes successful, and so does not vitiate either the presumption of counsel's effectiveness or the deference in the assessment of strategy.").
[24] Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Ex parte Adams, 768 S.W.2d 281, 287-88 (Tex.Crim.App.1989) (stating that "the applicant assumes the burden of proving his factual allegations by a preponderance of the evidence[.]") (citing Ex parte Adams, 707 S.W.2d 646, 648 (Tex.Crim.App.1986); Ex parte Salinas, 660 S.W.2d 97, 101 (Tex.Crim. App.1983); Ex parte Griffin, 679 S.W.2d 15, 17 (Tex.Crim.App.1984)).
|
[Cite as Hartzell v. Breneman, 2011-Ohio-2472.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JOHN HARTZELL, et al., )
) CASE NO. 10 MA 67
PLAINTIFFS-APPELLANTS, )
)
- VS - ) OPINION
)
DANIEL BRENEMAN, et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 09CV2589.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellants: Attorney Robert Vizmeg
21 North Wickliffe Circle
Youngstown, Ohio 44515
For Defendants-Appellees: Attorney Adam Carr
5824 Akron-Cleveland Road, Suite A
Hudson, Ohio 44236
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: May 18, 2011
VUKOVICH, J.
¶{1} Plaintiffs-appellants John and Sandra Hartzell appeal the decision of the
Mahoning County Common Pleas Court compelling them to sign medical releases as
requested by defendant-appellee Allstate Insurance. Appellants claim that the trial
court erred in ordering them to sign releases without ensuring the medical records that
would be generated were causally or historically related to the injuries involved in the
action.
¶{2} However, appellants waived their claims of privilege by failing to provide
Allstate with even the unprivileged medical records, failing to file a privilege log, and
failing to submit the records alleged to be privileged to the court for an in-camera
inspection as a result of their insistence that the records be held by a third-party
service company before they constructed their privilege log. For the following reasons,
the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
¶{3} After being injured in a July 11, 2007 car accident, appellants filed suit
against an uninsured motorist and Allstate, their uninsured motorist insurance carrier.
At deposition, Mr. Hartzell testified that he had pre-existing neck, back, and shoulder
problems from a 1991 car accident and that he had been taking pain medication since
1997. In a discovery request, Allstate asked for appellants’ medical records or for
them to sign medical releases.
¶{4} Appellants responded by stating that they would agree to provide
medical records on a “hold for view” basis, where they would be released to a third-
party record service so that appellants’ counsel could review them and construct a
privilege log of any records that are not causally or historically related to the claims.
Appellants also asked that complete copies of the records be provided to them at no
cost.
¶{5} Allstate then sent a letter reiterating its request for medical records or
releases. As to Mr. Hartzell, they asked for medical records from six physicians and a
spine center. Regarding Mrs. Hartzell, they asked for her medical records for all
treatment provided by a physician to whom she had been referred after the accident.
Appellants again set forth their position on the “hold for view” process.
¶{6} Allstate filed a motion to compel appellants to sign medical
authorizations. Appellants responded that the “hold for view” process was necessary
so a privilege log could potentially be created and so the court could determine
whether any documents were causally or historically related to the issues. Appellants
noted that not all medical records of a plaintiff suing for a car accident are
automatically discoverable.
¶{7} On April 8, 2010, the trial court granted Allstate’s motion to compel,
ordering appellants to sign the medical authorizations. Appellants filed a timely appeal
from this final order. See R.C. 2505.02(A)(3) (discovery of privileged matter is a
provisional remedy), (B)(4) (order that grants or denies a provisional remedy is
appealable if it in effect determines the action and prevents judgment, both with
respect to the provisional remedy, and if appellant would not be afforded meaningful or
effective remedy by appeal after final judgment as to all issues). See, also, Bednarik
v. St. Elizabeth Health Ctr., 7th Dist. No. 09MA34, 2009-Ohio-6904, ¶9.
¶{8} We note here that Allstate has recently filed a motion to dismiss for lack
of a final order on the grounds that although an order concerning the discovery of
privileged matter is appealable, the order here does not deal with privileged matter.
Allstate relies on a recent Supreme Court case, which held that a non-party surgeon
cannot claim privilege in order to refuse to testify at deposition about his own medical
history pertinent to whether he had a disease that he could have transmitted to his
surgical patient who was suing the hospital as a result of the patient’s contracting the
disease during surgery. Ward v. Summa Health Syst., 128 Ohio St.3d 212, 2010-
Ohio-6275 (in an appeal from a dismissal without prejudice for failure to file affidavit of
merit, which failure was the result of the trial court limiting the available information by
granting protective order in favor of non-party surgeon).
¶{9} The Court noted that the testimony was being sought from the surgeon
about his own medical information from his own recollection in his capacity as a
patient, not in his capacity as a physician. Id. at ¶26. The Court held that in
construing the statutory privilege strictly, it does not protect a patient from disclosing
their own medical information when relevant to the subject matter of the action. Id. at
¶27.
¶{10} Ward is distinguishable as it dealt with a potential defendant who would
not testify about his own relevant medical condition based upon his claim that he was
a physician. It did not deal with that potential defendant refusing to sign a release of
medical records, thus forcing the release of a privilege that his physicians could
otherwise have asserted on his behalf. Here, there was no refusal to testify by the
patients. There was a refusal to sign releases which would require physicians to
release medical information, some of which may be privileged, about the patients.
¶{11} Moreover, the Ward Court specifically pointed out that there was no
dispute as to the information’s relevancy. Id. at ¶12. And, the Court limited its holding
to state that the privilege does not protect the patient from disclosing their own
information “when relevant.” Id. at ¶27. Here, appellants’ whole argument is that
much of the information is not relevant. In other words, if the information is not
relevant, then it remains privileged. Thus, to answer the question of privilege, the
relevancy of the information must be reviewed.
¶{12} In order to determine whether information is privileged, the reviewing
court would have to conduct a merit review. Allstate’s argument would mean that if
appellants’ privilege argument is correct, then the case is appealable; but, if their
privilege argument is incorrect, then the case is not appealable. Appealability would
be based upon the merits of the case. However, a case does not lose its appealability
after a merit review discloses that the information is not in fact privileged. The final
appealable order statute deals with the granting or denying of a provisional remedy
and defines a provisional remedy as a proceeding for the discovery of privileged
matter. See R.C. 2505.02(A)(3), (B)(4).
¶{13} If we determine that the information is not privileged, then we have
reviewed that issue in full. We would not then dismiss the appeal that we just
reviewed. Rather, we would affirm the trial court’s order; otherwise, the same exact
issue would be subject to appeal again after the end decision in the case. Thus,
Allstate’s motion to dismiss is overruled.
ASSIGNMENT OF ERROR
¶{14} Appellants’ sole assignment of error provides:
¶{15} “THE TRIAL COURT ERRED WHEN IT ENTERED AN ORDER
COMPELLING PLAINTIFF/APPELLANT TO EXECUTE A BLANKET MEDICAL
AUTHORIZATION RELEASING CONFIDENTIAL AND PRIVILEGED MEDICAL
INFORMATION.”
¶{16} Appellants argue that the medical authorizations should be limited to
certain areas of the body to ensure that they are causally and historically relevant.
Appellants urge that the court should have ordered the records produced on a hold for
view basis so appellants could review the records and construct a privilege log and so
Allstate could then object to any disputed documents within the privilege log which
would then require the trial court’s in-camera inspection. Allstate responds that it is
not possible to determine if the records are all causally or historically related to the
injuries at issue because appellants failed to meet their burden of showing this by
failing to produce the records; essentially a waiver argument.1
¶{17} Pursuant to Civ.R. 26(B)(1), parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the pending
action. It is not ground for objection that the information sought will be inadmissible at
the trial as long as the information appears reasonably calculated to lead to the
discovery of admissible evidence. Civ.R. 26(B)(1).
¶{18} Communications between a physician and patient are generally
privileged. See R.C. 2317.02(B)(1). Where a patient files a civil action, the testimonial
privilege is lifted to a certain extent. See R.C. 2317.02(B)(1)(a)(iii). However, the
physician can be compelled to testify or submit to discovery only as to communications
1
Allstate also argues that the records were discoverable pursuant to the terms of the insurance
policy, which purportedly states that the insurer is entitled to the insured’s medical records pertinent to
the claim. First, this argument and the policy were not before the trial court when it ruled on the motion
to compel. The policy could not be added to the record after the trial court’s final judgment as Allstate
attempted to do in a supplemental motion filed in the trial court two months after the trial court’s entry.
Thus, the issue is not properly before this court. See State v. Ishmail (1978), 54 Ohio St.2d 402, 405-
406. In any event, even if the policy requires the production of pertinent medical records, there is still
the issue of whether the records sought were pertinent to the claim, which is basically the causally or
historically related test already at issue.
that are “related causally or historically to physical or mental injuries that are relevant
to issues” in the civil action. R.C. 2317.02(B)(3)(a).
¶{19} When information subject to discovery is withheld on a claim that it is
privileged, the claim shall be made expressly and shall be supported by a description
of the nature of the documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim. Civ.R. 26(B)(6)(a). This
rule essentially requires the construction of a privilege log.
¶{20} Upon motion and upon good cause, the court can issue any protective
order that justice requires to protect a person from annoyance, embarrassment,
oppression, or undue burden or expense, including one that limits the scope of
discovery or that orders submission of the material under seal to await further orders.
Civ.R. 26(C). The other party may move for an order compelling discovery, requesting
the court to compel an answer to an interrogatory or to compel inspection. Civ.R.
37(A)(2). A failure to serve answers or objections to interrogatories or to permit
inspection is not excused on the ground that the discovery sought is objectionable if
the party fails to seek a Civ.R. 26(C) protective order. Civ.R. 37(D).
¶{21} We review a trial court’s discovery decision for an abuse of discretion.
See State ex rel. The V. Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469; Patterson v.
Zdanski, 7th Dist. No. 03BE1, 2003-Ohio-5464, ¶10-11. Yet, legal questions on the
scope of privilege are reviewed de novo. Ward, 128 Ohio St.3d 212 at ¶13.
¶{22} Courts generally require the trial court to conduct an in-camera
inspection of documents claimed to be subject to privilege on the grounds that the
records are not causally or historically related to the injuries at issue in the action.
Patterson, 7th Dist. No. 03BE1 at ¶17. See, also, Folmar v. Griffin, 166 Ohio App.3d
154, 2006-Ohio-01849, ¶11-12, 25 (where the Fifth District remanded for an in-camera
review after the requesting party filed a motion to compel and the party asserting
privilege filed a motion to quash); Neftzer v. Neftzer (2000), 140 Ohio App.3d 618, 622
(where the Twelfth District remanded for in-camera inspection after a motion to quash
was filed by the party claiming privilege).
¶{23} However, the burden is on the party claiming privilege so that an in-
camera hearing is unnecessary if that party fails to show a factual basis for believing in
good faith that the records are not properly discoverable. Patterson, 7th Dist. No.
03BE1 at ¶19. See, also, Waldmann v. Waldmann (1976), 48 Ohio St.2d 176, 178.
Moreover, a claim of privilege can be waived where no privilege log is submitted.
McPherson v. Goodyear Tire & Rubber Co., 9th Dist. No. 20579, 2001-Ohio-1517,
¶11, citing Peat, Marwick, Mitchell & Co. v. West (C.A. 10, 1984), 748 F.2d 540, 542.
See, also, Huntington Natl. Bank v. Dixon, 8th Dist. No. 93604, 2010-Ohio-4668, ¶22-
25 (stating that the trial court had discretion to determine waiver on a case-by-case
basis, implying that the refusal to allow a late privilege log would not be disturbed).
¶{24} Here, appellants did not seek a protective order but merely filed a
response to the motion to compel. They agreed to construct a privilege log in their
discovery negotiations but did not do so in the three months between their objection to
the interrogatory/production request and the motion to compel, or thereafter when
responding to the motion to compel. Rather, they proposed that the records be
produced to some third-party before they reviewed them for construction of a privilege
log. This was apparently an attempt to avoid paying the costs.
¶{25} Civ.R. 26(B)(6)(a) specifies that when information subject to discovery is
withheld on a claim that it is privileged or subject to protection as trial preparation
materials, the claim shall be made expressly and shall be supported by a description
of the nature of the documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim. As the rule does not
provide an exception to the privilege log requirement, appellants should have collected
their own medical records, constructed a privilege log for records it deemed not
causally or historically related to the action, and provided the other records and the
privilege log to Allstate, at which point Allstate could have determined whether a
motion to compel was necessary, or to the trial court for an in-camera inspection.
¶{26} Appellants failed to follow the proper procedure under the Civil Rules and
thus were not entitled to an in-camera review. It was their burden to show that the
records were not causally or historically related. See Patterson, 7th Dist. No. 03BE1
at ¶19. See, also, Waldmann, 48 Ohio St.2d at 178. Without a privilege log and a
provision of the records to the trial court, this burden could not be met, allowing the
trial court to compel production of the records.
CONCLUSION
¶{27} Due to the failure to follow the proper procedure under Civ.R. 26(B)(6)(a)
by releasing unprivileged medical records, filing a privilege log as to records alleged to
be privileged, and the resulting inability of the trial court to hold an in-camera hearing,
the trial court could rationally find that appellants waived their claim of privilege and
failed to meet their burden to show the records were not causally or historically related
to the claim at bar. Accordingly, the trial court could appropriately order appellants to
sign medical releases as requested by Allstate.
¶{28} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.
|
51 S.W.3d 133 (2001)
Viviane HOSTO, Russell Hughes, Brooke A. Arbeitman, and Christopher M. Arbeitman, Respondents,
v.
UNION ELECTRIC COMPANY, Appellant.
No. ED 74975.
Missouri Court of Appeals, Eastern District, Division One.
May 9, 2001.
Motion for Rehearing and/or Transfer Denied June 13, 2001.
Application for Transfer Denied August 21, 2001.
*136 Armstrong Teasdale LLP, James J. Virtel, Ann E. Buckley, Lisa M. Wood, One Metropolitan Square, St. Louis, MO, for appellant.
Davidson, Schlueter, Mandel & Mandel, Alan S. Mandel, St. Louis, MO, for respondents, Viviane Hosto, Russell Hughes.
Michael A. Wolff, Charles A. Seigel, III, Seigel & Wolff, P.C., St. Louis, for Respondents Brooke and Christopher Arbeitman.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 13, 2001.
GARY M. GAERTNER, Sr., Presiding Judge.
Appellant, Union Electric Company ("Union Electric"), appeals from the judgment of the Circuit Court of the City of St. Louis, entered in favor of the respondents, Viviane Hosto, Russell Hughes, and Brook and Christopher Arbeitman ("Respondents"), after the jury returned a verdict in the amount of $ 2,500,000 for Viviane Hosto and Russell Hughes and $1,250,000 for Brooke and Christopher Arbeitman in an action for negligence. We affirm.
The evidence presented in this case most favorable to the verdict is as follows.[1] Early in the evening of August 9th, 1992, Harold Arbeitman ("Arbeitman") and Evelyne Hughes ("Hughes") arrived at the Duck Club restaurant on the Illinois shore of the Mississippi River. Arbeitman owned a helicopter, which he flew to and from the Duck Club regularly. Shortly after they arrived, a boater came to the restaurant looking for Arbeitman and spoke with the manager of the restaurant. The boater asked the manager to tell Arbeitman there had been a boating accident on the river in which a man was seriously injured; and a helicopter was needed to transport the victim to the nearest hospital. The manager relayed the message to Arbeitman. He immediately got up from the table and with Hughes as his passenger, he left in his helicopter to attempt a rescue.
After taking off, they climbed to approximately 500 feet above the river and flew about two miles north from the Duck Club. Another boater on the river heard on the radio that Arbeitman was in flight but was heading in the opposite direction from the injured man. The boater spotted Arbeitman and started waving a towel in the air to get his attention. Arbeitman turned the helicopter around toward the south and descended to the height of 50 to 100 feet off the water to hover over the boat. The boater through motions informed Arbeitman the injured man was down the river in the opposite direction from his flight. Facing south, Arbeitman gained altitude and slowly moved down the river.
*137 The injured man was near Royal Island around mile marker 223[2]. This portion of the Mississippi River has several islands and is a popular gathering place for boaters. People park their boats, congregate on the beaches, operate jet skis, and swim in the area. Union Electric maintains power lines in this area about half a mile south of mile marker 225 that stretch 2,300 feet across the Mississippi river. The lines crossing the river are supported by three sets of towers: two on the Illinois bank of the river, two on Iowa Island, and two on the Missouri bank of the river. People along the river use these power lines as a reference point, and the area below them is often designated as a meeting or gathering place. As many as 10,000 boaters will pass under these power lines on an average summer weekend.
A witness standing on the shore of one of the islands about ten feet from the power lines observed the helicopter flying slowly at a very low altitude, "obviously looking for something." The helicopter then approached the power lines spanning 1,300 feet between Illinois and Iowa Island, turned left suddenly, appearing to maneuver to avoid the power lines. The helicopter avoided the lower, larger conducting lines (three-fourths of an inch), but struck the smaller (five-eighths of an inch) static line with the rotor shaft of the helicopter. The helicopter became entangled with the wire, which snapped off the rotor blades of the helicopter. The helicopter plunged into the river, sinking immediately. The autopsy subsequently revealed Arbeitman was crushed by the helicopter, and Hughes drowned. The toxicology report revealed Arbeitman's blood alcohol content was .114 at the time of the accident.
Respondents, family members of the decedents, filed an action against Union Electric for wrongful death. Respondents allege Union Electric was negligent for failing to mark the power lines with orange marker balls. Union Electric claimed they owed no duty to decedents to mark the lines.
None of the lines was marked with orange balls. The Federal Aviation Administration (FAA) requires all power lines 500 feet above ground to be marked. 14 C.F.R. sec. 77.23(a)(1) (2000). Structures over 200 feet above ground are considered obstacles to air navigation if they are within three nautical miles of an airport whose longest runway is more than 3,200 feet, and may be required to be marked. Id. sec. 77.23(a)(2). These wires were 105 feet above the surface.
At trial, an employee for Union Electric, whose responsibilities included deciding whether existing power lines presented a hazard and should be marked, conceded that since these power lines were erected in 1913, Union Electric had never modified these lines, nor "gone out to determine whether those power lines should be marked." Since 1913, two airports have been constructed within a five-mile radius of the power lines, and over forty airports are in the general area. A number of witnesses testified there was frequent air travel by small aircraft along the river. The planes would fly in the vicinity of the power lines and "buzz" the boats. They also testified they frequently saw Arbeitman flying his helicopter along the river. Aside from the boating and air traffic, this area on the river was described as remote with limited road access and no hospital nearby.
The respondents presented an expert witness, Dr. Hynes, who was an experienced pilot, aviation instructor, FAA-designated *138 examiner, and a consultant to electric companies on the issue of whether to mark power lines. Dr. Hynes testified he had examined the power lines at issue in this lawsuit and had formed the opinion that, regardless of the fact there had never been an accident involving these power lines since their erection, they posed a hazard to aviation activity and should have been marked.[3] He explained the small diameter of the power lines, the age of the lines, the oxidation of the lines leaving them a greenish gray color, the long span between the towers (1,300 feet), the fact the towers "do not jump out at you"one being on a hill and the other in a "bunch of trees," the high level of boating activity on the river, and the high level of aviation activity in the area, were all factors he took into consideration to form his opinion. He described the Mississippi River as a "natural flyway" and explained that pilots use the river to navigate. Further, he explained with the substantial amount of boating activity on this section of the river, a high volume of planes are attracted to the area.
Dr. Hynes also testified that when he flew over the area to view the lines from a helicopter, being trained to look for electric lines, he found "[t]hey're virtually impossible to see. The static lines [were] impossible to see." He noted that as a result of the towers being set back in the trees, the lines were virtually impossible to see from a pilot's perspective, even by a trained expert. Further, he described the importance of the marker balls was not only to draw a pilot's attention to the wires while navigating; but that the marker balls aid in depth perception when a pilot is navigating in close proximity to the wires. A pilot can draw his sole attention away from the wires while, for example, looking at the control panel, yet maintain in his vision these marker balls and therefore, at all times be aware of the proximity of the wires.
There were also several photographs of the electrical lines and towers from different angles exhibited by both parties and videotape. Several witnesses testified when viewing the exhibits the lines were difficult to see if not impossible in some instances.
The jury awarded $2.5 million to Brooke and Christopher Arbeitman, the children of Arbeitman, assessing fifty percent fault to Union Electric and fifty percent fault to Arbeitman. Accordingly, the trial court entered judgment for the Arbeitmans in the amount of $1.25 million. The jury awarded $2.5 million to Viviane Hosto and Russell Hughes, the parents of Hughes, and the court entered judgment for $ 2,133,500, after crediting their settlement with Arbeitman's estate.
Union Electric raises five points on appeal. Further facts pertinent to address these issues will be added as necessary.
In the first point, Union Electric appeals from the trial court's denial of their motion for judgment notwithstanding the verdict, alleging they were under no duty to mark the power lines, and therefore, the respondents failed to make a submissible case of negligence.
A motion for judgment n.o.v. presents the same issue as a motion for directed verdict at the close of all of the evidence: whether plaintiff made a submissible case ... To determine whether a plaintiff has made a submissible case, we view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. We *139 will not overturn a jury verdict unless there is a complete absence of probative facts to support it.
Kimbrough v. J.R.J. Real Estate Investments, Inc., 932 S.W.2d 888, 889 (Mo.App. E.D.1996) (citation omitted).
"Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo.1997) (citation omitted). In order for a plaintiff to make a submissible case of negligence, he must establish there was a duty, and the breach of that duty was the proximate cause of his injury. Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo.banc 1993). "Whether duty exists is purely a question of law." Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo.banc 2000). "In the absence of a particular relationship recognized by law to create a duty, the concept of foreseeability is paramount in determining whether a duty exists." Id. Foreseeability is "the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it." Id. "The judicial determination of the existence of duty rest on sound public policy." Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc. 700 S.W.2d 426, 431 (Mo. banc 1985). "In considering whether a duty exists in a particular case, court[s] must weigh the foreseeability of injury, likelihood of injury, magnitude of burden of guarding against it and consequences of placing that burden on defendant." Lockwood v. Jackson County, Mo., 951 S.W.2d 354 (Mo.App. W.D.1997).
In Lopez v. Three Rivers Electric Cooperative, Inc., the Supreme Court of Missouri addressed the issue of whether a utility company was under the duty to mark overhead wires. In that case, a helicopter flew into power lines stretched over the Osage River at an altitude of approximately 100 feet. Id. at 155. The helicopter crashed killing all four crewmembers. The following are additional facts the court relied on to find there was a duty to mark the power lines:
The power lines at the accident site crossed a 939 foot span over the Osage River. They were suspended at an angle across the river between two "H" structures. Trees and other vegetation obstructed the view of the supporting structures. The power lines were three-eighths of an inch in diameter ... the lines had turned greenish brown in color... the lines were not in close proximity to a public airport ... [there was] a similar incident that had occurred [nineteen years earlier] ... resulting in three fatalities ...
26 S.W.3d 151, 155 (Mo. banc 2000).
The case at hand presents facts similar to those relied on by the Lopez court to find the accident was foreseeable and a duty existed. In this case, there was testimony the lines spanned 1,300 feet across the river. The lines had oxidized leaving them a greenish gray color. Dr. Hynes testified that when he viewed the towers from a helicopter they did not jump out at youone being on a hill and the other in "a bunch of trees." Dr. Hynes also testified as a result of the towers being set back in the trees, the lines were virtually impossible to see from a pilot's perspective, even by a trained expert.
Union Electric argues that during cross-examination Dr. Hynes contradicted his previous testimony on the tower's visibility and therefore, no evidence of probative force exist. The excerpt of Dr. Hynes testimony cited by Union Electric, was elicited when Dr. Hynes was viewing and commenting on his perception of a photograph. Dr. Hynes was unable to testify as to whether this exhibit was taken from the *140 ground with an elevated camera, a helicopter, or an airplane. Also, in this excerpt, the questions posed were stated generally. For example, the question, "and what do towers like this tell you" (emphasis added) attempts to elicit Dr. Hynes's general opinion about utility towers, and not his perception of the towers at issue in this case when he viewed them from a helicopter. These statements on cross-examination do not vitiate his earlier testimony. Reading the testimony of Dr. Hynes as a whole, we do not believe his testimony is ambiguous or contradictory. While the testimony of other witnesses may conflict with Dr. Hynes's testimony, when reviewing the evidence in the light most favorable to the verdict, we believe there is probative evidence indicating that the towers were not clearly visible.
Although the Court in Lopez consulted other jurisdiction's jurisprudence dealing with power line collision cases, they refrained from adopting the three-part test set out in Lively, infra, employed by the dissent. Nor did the Court state the factors present in Lopez were the exclusive factors to consider when determining whether a duty exists to mark power lines. A fair reading of Lopez, would suggest the question of duty in power line collision cases is still determined by looking at all the relevant facts present in a particular case.
The one fact missing in this case that was present in Lopez is the existence of a similar prior accident with the loss of lives. Union Electric maintains presence of a prior similar accident is important, because then the utility companies would be on notice, and it goes to the foreseeability of another accident. We believe it would be a tragedy in Missouri jurisprudence to say utility companies in this situation get one "free bite" before their duty to act against an unreasonable, foreseeable risk would arise.
This case presents additional, significant factors when considering whether there is a duty to mark the power lines. These power lines were in the close proximity to two airports and over forty airports were in the general area. Dr. Hynes testified that the Mississippi River serves as a "natural flyway," and pilots use the river to navigate. Several witnesses testified there was frequent air travel by small aircraft along the river. The planes would fly in the vicinity of the power lines at low altitudes and "buzz" the boats. Also, many witnesses testified they frequently saw Arbeitman fly his helicopter along the river.[4]
Dr. Hynes described the wires as "virtually impossible to see." When viewing the several photographs of the power lines exhibited by both parties, several witnesses testified the lines were difficult to see, if not impossible, in some instances. These power lines were located above a popular gathering place for boaters and swimmers. As many as 10,000 boaters pass under these power lines on an average summer weekend. We believe, as the trial judge found, it was foreseeable that a boater would be injured in the area below the lines and would need emergency assistance. Since there is limited access by road and no hospital in the area, it was foreseeable an air rescue would be necessary.
Had it been necessary for an emergency rescue of one of the 10,000 boaters by helicopter below these power lines, according to expert testimony, the marking of the power lines would have served two *141 cautionary functions. First, it alerts the pilot to the existence of the power lines from a distance. Second, when flying in a close proximity to the lines, the markers aid the pilot in gauging how close he is to the wires. This information is particularly significant to the case at hand, since Arbeitman was required in his rescue to maneuver his helicopter in close proximity to the power lines, and missed the larger conducting lines, but came into contact with the smaller static lines.
We believe, on these particular, unique facts, an accident involving an aircraft and these power lines was foreseeable, and therefore, Union Electric was under a duty to mark the power lines. Union Electric should have been aware with the exercise of reasonable diligence that these power lines presented a risk to aviators. We conclude the trial court did not err in denying Union Electric's motion for judgment notwithstanding the verdict.
In its second point on appeal, Union Electric alleges the trial court erred in giving instructions number 8 and 13, respondents' verdict-directing instructions, alleging the instructions erroneously assumed facts, were misleading, vague, and amounted to a roving commission. The following instructions were submitted to the jury over Union Electric's objections:
Instruction 8
In your verdict you must assess a percentage of fault to defendant whether or not Harold Arbeitman was partly at fault if you believe:
First, plaintiffs Brooke and Christopher Arbeitman were the children of Harold Arbeitman, and
Second, defendant maintained power lines over the Mississippi River in the vicinity of mile marker 225 without marker balls to warn pilots of their presence and as a result the airspace in the vicinity of the power lines was not reasonably safe for persons flying aircraft in that area, and
Third, defendant knew or by using ordinary care could have known of this condition, and
Fourth, defendant failed to use ordinary care to warn of the condition, and
Fifth, such failure directly caused or directly contributed to cause Harold Arbeitman's death.
Instruction 13
Your verdict must be for the plaintiffs Viviane Hosto and Russell Hughes if you believe:
First, plaintiffs Viviane Hosto and Russell Hughes were the natural parents of Evelyne Hughes, and
Second, defendant maintained power lines over the Mississippi River in the vicinity of mile marker 225 without marker balls to warn pilots of their presence and as a result the airspace in the vicinity of the power lines was not reasonably safe for persons flying aircraft in that area, and
Third, defendant knew of, or by using ordinary care could have known of this condition, and
Fourth, defendant failed to use ordinary care to warn of the condition, and
Fifth, such failure either directly caused the death of Evelyne Hughes or combined with the acts of Harold Arbeitman to directly cause the death of Evelyne Hughes.
Instructions 8 and 13 were derived from an instruction approved in Pierce v. Platte-Clay Elec. Coop., 769 S.W.2d 769, 777 (Mo. banc 1989). In Pierce, a farmer filed a negligence action against an electric company for damages he suffered when his tractor snapped an unmarked guy wire *142 that stabilized a pole which supported the electric company's power lines. Id. The farmer's theory of liability was based on the electric company's negligent failure to mark the guy wire to warn farmers of the wire's presence. The verdict-directing instruction in Pierce read as follows:
In your verdict you must assess a percentage of fault to Defendant if you believe:
First, Defendant maintained a guy wire near the northeast corner of a cultivated field on the Kurtenbach farm property in support of a utility pole with attached cable crossing over "HH" Highway, and
Second, such guy wire was not equipped with a guard or marker and as a result persons operating farm machinery on the Kurtenbach farm property were exposed to an unreasonable risk of running the machinery into the guy wire and being injured, and
Third, Defendant knew or by the exercise of ordinary care should have known of the existence of this condition and such unreasonable risk, and
Fourth, Defendant failed to use ordinary care to remedy it, and
Fifth, such failure directly caused or directly contributed to cause injury to Plaintiff.
This instruction is a modified version of MAI 22.03.
Whether or not a jury was properly instructed is a question of law. Luyties Pharmacal Co. v. Frederic Co., Inc., 716 S.W.2d 831, 834 (Mo.App. E.D. 1986). If a Missouri Approved Instruction is applicable to a particular case, its use is mandatory. Rule 70.02(b). However, if there is no Missouri Approved Instruction that is applicable, the court must adopt an instruction that follows the substantive law and can be readily understood by the jury. Murphy v. City of Springfield, 794 S.W.2d 275, 278 (Mo.App. S.D.1990). "[A] modified MAI or not-in-MAI instruction should require a finding of all ultimate facts necessary to sustain a verdict." Grindstaff v. Tygett, 655 S.W.2d 70, 73 (Mo.App. E.D. 1983).
Specifically, Union Electric argues these instructions erroneously assumed facts and required the jury to find it knew of some unspecified "condition." First, addressing the latter concern, paragraph three of the instruction cannot be read apart from the preceding paragraphs of the instruction. See, Pierce at 778. Reading the instruction as a whole, it is clear the "condition" referred to in paragraph three is referring to the hypothetical laid out in the preceding paragraph. Specifically, the jury was asked to determine whether Union Electric knew, or by using ordinary care, could have known the airspace in the vicinity of the power lines was not reasonably safe, because there was a foreseeable risk to aviators flying in the area of the power lines by maintaining power lines over the Mississippi River in the vicinity of mile marker 225 without marker balls to warn pilots.
Second, Union Electric argues instruction 8 and 13 erroneously assumed that persons had flown aircraft "in the vicinity of the power lines," and it knew or should have known of such flights. Further, Union Electric argues these instructions failed to submit the essential issue of whether it reasonably should have foreseen that aircraft would be flying in the vicinity of the power lines. An instruction must only submit the ultimate facts necessary to sustain a verdict. As discussed above, the concept of foreseeability is paramount in determining whether a duty exists. Although, "[i]n some cases, the jury may be charged with determining whether facts exist that may give rise to a finding *143 of foreseeability ... it is for the court to determine as a matter of law whether the facts give rise to a duty." Lopez at 157 n. 1. Therefore, it was within the trial court's province to determine foreseeability of injury and not submit the issue to the jury in a verdict-directing instruction. Therefore, the trial court did not err in submitting instructions number 8 and 13 to the jury.
In its third point, Union Electric alleges the trial court erred in excluding evidence of Evelyne Hughes's blood alcohol content and refusing to submit to the jury an instruction alleging her comparative fault.
Union Electric alleges that Hughes spent the whole day with Arbeitman. Arbeitman's blood alcohol level was .114 at the time of the accident; indicating he either had five to six drinks in the hour immediately preceding the accident or an additional one to two drinks each hour preceding the accident. Union Electric argues these facts were sufficient to support the submission of a jury instruction of Hughes's comparative fault. It argues, a jury could have reasonably inferred Hughes was negligent in entering a helicopter with a pilot whom she knew was in an intoxicated condition. We disagree.
"It is a well settled rule of law that any issue submitted to the jury in an instruction must be supported by evidence from which the jury could reasonably find such issue." King v. Unidynamics Corp., 943 S.W.2d 262, 267 (Mo.App. E.D.1997). It is erroneous for the trial court to give an instruction where there is no substantial evidence to support the issue submitted. Id. "In considering whether or not an instruction is supported by evidence, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the party offering the instruction." Id.
In the case at bar, reviewing the record in a light most favorable to Union Electric's instruction, we find no substantial evidence to support the submission of the instruction. There was no testimony in the record that Hughes had consumed any alcohol with Arbeitman. Union Electric's speculation that she may have spent the day with Arbeitman and may have witnessed him drinking is not substantial evidence to warrant the submission of comparative fault instruction to the jury.
Furthermore, Union Electric argues that the trial court erred in excluding the evidence of Hughes's blood alcohol content. Union Electric contends the evidence is relevant and would have further supported the submission of her comparative fault instruction to the jury, in that it supported an inference that she and Arbeitman had been drinking together and was additional evidence of her knowledge of his impaired condition. Union Electric relies on Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo.banc 1996).
In Rodriguez, the defendant, Suzuki, contended that the trial court erred in excluding evidence of passenger/plaintiff Rodriguez's alcohol consumption on the issue of her negligence. Id. at 109. In their answer to Rodriguez's petition and by its offer of proof, Suzuki asserted the affirmative defense of comparative negligence by "plaintiff's decision to and act of traveling in a vehicle operated by an intoxicated driver." Id. Suzuki did not allege Rodriguez's intoxication as an independent act of negligence, but it argued that her drinking impacted her decision to enter and remain in the vehicle with an intoxicated driver. Id.
The Supreme Court stated that Suzuki was entitled to submit Rodriguez's comparative negligence to the jury if it met its burden of production. Id. The Court noted that Rodriguez admitted consuming alcohol with the intoxicated driver before *144 entering the vehicle, and her alcohol content was about .11 at the time of the accident (compared to the .10 prima facie level of legal intoxication). Id. Thus, the Court held that Suzuki was entitled to submit the comparative fault instruction because it met the burden of production. Id.
Here, the record is devoid of any evidence Hughes consumed alcohol the day of the accident with Arbeitman. Her blood alcohol content was approximately .08 at the time of her death (compared to the .10 prima facie level of legal intoxication). We conclude Union Electric was not entitled to submit the comparative fault instruction. Further, the trial court did not err in excluding the evidence of Hughes's blood alcohol content, because Union Electric did not meet its burden of production.
In its fourth point on appeal, Union Electric alleges the trial court erred in denying its motion for remittitur as to Brooke and Christopher Arbeitman.
The trial court has broad discretion in ordering remittitur, and its decision whether or not to reduce damages will not be disturbed on appeal absent an abuse of discretion "so grossly excessive that it shocks the conscience and convinces this court that both the trial judge and the jury have abused their discretion." King v. Unidynamics Corp., 943 S.W.2d 262, 268 (Mo.App. E.D.1997). Missouri statute provides in a wrongful death action a jury may take into consideration the pecuniary losses suffered by reason of death and loss of companionship, comfort, instruction, guidance, among other things. Mo.Rev. Stat. sec. 537.190 (1994).
Harold Arbeitman died at the age of forty-seven. At the time of his death, his two children were ages 16 and 20. Arbeitman was divorced from the mother of the children, but continued to provide financial support to the children and his ex-wife above what was required by court order. In a suit for wrongful death, we do not believe damages of $2.5 million less $1,250,000 for comparative fault, are excessive. Therefore, we find the trial court and jury did not abuse their discretion. Point denied.
In its fifth point on appeal, Union Electric alleges the trial court erred in denying its motion for remittitur as to Viviane Hosto and Russell Hughes. Again, it is difficult to put a dollar value on life. There was evidence in the record Viviane Hosto and Russell Hughes had a loving relationship with their daughter, who died at the age of twenty-seven. We find the trial court and jury did not abuse their discretion in awarding damages of $2,500,000. Point denied.
Based on the foregoing, we affirm the judgment of the trial court.
SIMONS, J., concurs.
JAMES R. DOWD, J., dissents in a separate opinion.
JAMES R. DOWD, Judge, dissenting.
I respectfully dissent.
I agree that Union Electric has a duty to give notice of its power lines to pilots in a manner that makes them reasonably safe. I do not, however, believe that a pilot with a blood alcohol level of .114 striking these power lines is foreseeable[1]*145 or that there was evidence presented at trial sufficient for us to conclude that these lines were unreasonably dangerous to normally flying aircraft. The majority here expands the duty to give notice by attaching marker balls to power lines well beyond what was previously required by state and federal law.
I agree with the majority's statement of the general principles of law governing the determination of when a duty to take precautions exists. But I think it appropriate to emphasize Dean Prosser's admonition that "duty is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court." PROSSER AND KEETON ON THE LAW OF TORTS at 236 (5th ed.1984) (emphasis added). This judicial determination of the existence of a duty
rests on sound public policy as derived from a calculus of factors: among them, the social consensus that the interest is worthy of protection; the foreseeability of harm and the degree of certainty that the protected person suffered injury; moral blame society attaches to the conduct; the prevention of future harm; consideration of cost and ability to spread the risk of loss; the economic burden upon the actor and the community ...
Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 432 (Mo.1985) (quotation and citations omitted). The grim calculation of factors is made all the more difficult in this case because Mr. Arbeitman was clearly acting as a "good samaritan" at the time of this tragic accident. Still, it remains the court's duty to weigh and balance these factors. The concept of comparative fault, upon which this case was submitted to the jury, offers us no solace because that issue is not reached until we determine that a duty exists.
Here, there is no statutory duty to place marker balls on these wires because the wires are only 105 feet above the ground,[2] so we look to the case law to determine whether there is a duty to attach marker balls to these wires.
Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151 (Mo. banc 2000), cited by the majority, is the only Missouri case to address the duty to attach marker balls to power lines. In that case, the Supreme Court concluded that though the power company complied with FAA regulations, it had a duty to attach marker balls to its lines because of a prior wire strike and because the towers were hidden by trees and the wires blended in with the surrounding landscape. Id. at 157.
The Lopez court cites Poelstra v. Basin Electric Cooperative, 545 N.W.2d 823, 827 (S.D.1996), which employed a similar approach to determine when power lines must be marked. Lopez, 26 S.W.3d at 156. In Poelstra the Supreme Court of South Dakota adopted the following standard:
no duty or breach of duty exists as a matter of law where the following elements exist: the height of the power *146 lines and their location are in compliance with applicable ordinances and FAA regulations; no notice of prior accidents of a similar kind involving the power lines exist; and the power lines, as constructed, do not create an unreasonable risk of harm.
Id. at 827 (quoting Florida Power & Light Co. v. Lively, 465 So.2d 1270, 1274 (Fla.Ct. App.1985), review denied, 476 So.2d 674 (Fla.1985)).[3]
The Lopez court also cites Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 893 P.2d 26, 31, 33 (App.1994), which emphasizes that before a duty to attach marker balls will arise the wires in question must constitute an unreasonable risk of harm. Lopez, 26 S.W.3d at 156. In Davis, an airplane collided with unmarked power lines while allegedly attempting an emergency landing on an interstate highway, killing all four persons in the plane. Survivors of the decedents sued the Arizona Public Service Company (APS) for negligently failing to mark the lines so that they were visible to aircraft. Davis, 893 P.2d at 29. The trial court concluded that APS owed no duty of care to the decedents and granted summary judgment in favor of APS. The Arizona Court of Appeals held that "failure to mark its power lines did not create an unreasonable risk of harm to normally operating aircraft and therefore, APS did not breach its duty to decedents to guard against the risk of unreasonable harm ..." Id. at 29, 893 P.2d 26 (emphasis added); see also Lea v. Baumann Surgical Supplies, 321 So.2d 844, 855 (La.Ct.App.1975). The record here is uncontroverted that Arbeitman failed to comply with the most basic rules of safe flying, and that the power lines did not pose an unreasonable risk of harm to normally operating aircraft.
First, as Davis makes clear, the duty to affix marker balls to lines arises when the wires pose an unreasonable risk to normally operating aircraft. Davis, 893 P.2d at 29, 32. "A person responsible for a dangerous condition that is likely to cause injury to persons rightfully in its proximity is charged with taking appropriate precautions to avoid injury to such persons, and his failure to take such precautions constitutes negligence." Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55 (banc 1952) (emphasis added). There is no duty to take precautionary measures to prevent injuries that result from "peculiar, unusual and unexpected occurrences" that could not have been reasonably anticipated. Id. In the absence of notice to the contrary, persons are entitled to assume that others will exercise due care for their own safety. Taylor v. Dale Freeman Corp., 389 S.W.2d 57, 61 (Mo. 1965).
Those who possess structures that may be obstacles to navigation can expect that pilots will observe certain minimal levels of conduct. Davis, 893 P.2d at 32. Among these are that pilots will not be intoxicated. A helicopter operated by an individual with Arbeitman's blood alcohol content, flying at so low an altitude two miles from any emergency and more than three nautical miles from an airport, is not a normally operating aircraft. It is more akin to the pilot in Davis attempting to land on an interstate highway.
Second, in every case where a court has found a duty to mark power lines one or more of the following were present: (1) prior wire strikes or actual notice of danger,[4]*147 (2) support towers above the 200 foot floor established by FAA regulation,[5] (3) obscured support towers,[6] and (4) configurations of support towers which could fool a pilot because they result in lines hanging from one set of towers that are actually above another set of support towers.[7] None of these facts exist here. The power lines here have traversed this span of river without incident since 1913. They comply with all state and federal regulations.
In finding the existence of a duty the majority relies on testimony from plaintiff's expert witness to establish that the towers here, like those in Lopez, provide insufficient warning to pilots of the wires hanging between them. Although "expert testimony might be relevant to help establish some underlying fact on which duty may ultimately rest, whether a duty exists is not a question for expert testimony, but one for the trial court based on the facts viewed in a light most favorable to the plaintiff." Burns v. Black & Veatch Architects, Inc., 854 S.W.2d 450, 453 (Mo.App. 1993). I do not believe plaintiffs' expert provided evidence sufficient to allow us to conclude that these lines pose an unreasonable risk of danger because the towers here are remarkably different from the towers described in Lopez.
Plaintiffs' expert admitted that one of the most fundamental rules of safe flying is to fly above the towers that support power lines. See also Baumann Surgical Supplies, 321 So.2d at 850; Shute v. Moon Lake Elec. Ass'n, 899 F.2d 999, 1002 (10th Cir.1990). If the towers are clearly visible, a pilot obeying the simplest rules of safe flying is warned of the presence of the wires and knows that he must stay above the towers to be safe. Central, therefore, to the determination that power lines pose an unreasonable risk of danger is whether the support towers provide sufficient notice of the wires between them. This point was emphasized in Lopez. Lopez, 26 S.W.3d at 157. Testimony in Lopez established that "the supporting structures, located on the banks of the river, were not visible from a distance of one mile in either direction and were obstructed." Id. at 157 (emphasis added). Here the evidence, viewed in the light most favorable to the verdict, does not support a finding that the towers are "not visible," "obstructed," or even difficult to see.
The only evidence in the record to suggest that the Union Electric's towers are not clearly visible is the testimony of plaintiff's expert, who on direct examination testified that:
The span is about 1,300 feet, if I recall correctly, between the towers which is a fairly long span so you don't see the towers to catch your attention. The towers themselves, one of them is kind of up on a hill and the other is in a bunch of trees so that they don't jump out at you to kind of warn you that there is something coming up.
*148 (emphasis added). Plaintiffs' expert does not testify that the towers are "not clearly visible." He does not testify that the towers are in any way "hidden" or "obscured." He does not testify that a reasonably attentive pilot would not see the towers. He states only that "you don't see the towers to catch your attention" and "they don't jump out at you." (emphasis added). Any suggestion that the real meaning of this testimony is that the towers are "not visible" or "hidden" or "obscured" is defeated by the testimony of plaintiffs' own witnesses.
There is undisputed testimony that the towers on Iowa Island stand 170 feet above the ground. Plaintiffs' expert testified on direct that the trees on the island are between 50 and 100 feet tall. These towers, then, are at least 70 feet taller than the surrounding trees. Emily Kotraba, a witness called by plaintiffs, testified on cross-examination that the towers on Iowa Island are "substantially above the trees" and that their silver color "contrasts" with the color of the surrounding foliage. There is also undisputed evidence that the towers in Illinois are on a hill, stand 90 feet above the ground on that hill and are not surrounded by trees. These towers are so conspicuous a feature of the landscape that boaters use them as a reference point and meeting place.
During cross-examination, the following testimony was elicited from plaintiffs' expert:
Q Now, are towers like this something that you as a pilot would be aware of when you fly?
A Yes.
Q Okay, and what do towers like this tell you?
A That there is utility lines on the tower someplace.
Q They not only serve to support the utility lines but they're pretty large structures that can be seen, do you agree?
A That is correct.
Q And that tower tells you that there are probably utility lines coming off from it in either direction?
A That is correct.
Q If you were to keep your helicopter above the top of this tower you would not hit any utility lines coming off that tower, would you?
A That is correct.
The following remark by the trial judge hearing post-trial motions is telling on whether there was evidence that the towers were "hidden" or "obscured":
You know, to be perfectly frank with you, you know, you look at it from the common sense point of view, my initial impression of this case is gee whiz, you got these two huge towers, come on, you got to know that there is something there, you know, you got to be extremely careful when you fly in that area, that's the first thing that hits me.
(emphasis added). Here there is no evidence that the towers could not be seen if the pilot only looked. The majority appears to rely on the plaintiff's expert to create a rule that towers must "catch your attention" or "jump out at you" in order to provide sufficient notice of the wires. No such requirement exists in the regulations or prior case law.
Having found that there is testimony that the towers do not "catch your attention" or "jump out at you," the majority then focuses on whether the wires are clearly visible. The majority cites the testimony of the plaintiff's expert that the "lines were virtually impossible to see," and that "Arbeitman was required in his rescue to maneuver his helicopter in close *149 proximity to the power lines ..." (emphasis added). Unfortunately, Arbeitman was not required to be anywhere near these power lines to make a rescue. All versions of the events leading to the tragic wire strike begin with a boating accident two miles south of the power lines, almost directly across the river from where Arbeitman was sitting down for dinner. Arbietman takes off, flies about two miles north at an altitude of about 500 feet directly over the power lines in question. A boater sees that Arbeitman is headed in the wrong direction and flags him down. Arbeitman lowers his helicopter to an altitude of about 50 feet above the boat. The boater points him south. Arbeitman is then about 600 feet north of the power lines. He begins to head south, approaching the wires; but in that 600 feet he ascends only 50 feet and strikes the wires approximately 400 feet from the Illinois towers. Because these towers provide ample notice of the wires between them, I do not believe the power lines here create an unreasonable risk of harm to normally operating aircraft.
Finally, I disagree with the majority's claim that failure to impose a duty here would allow power companies one "free" collision. The case law in other states demonstrates that notice of an unreasonable risk of harm can arise without a prior strike. See Brittain, 486 P.2d at 177 ("the wire and the poles readily blended with the countryside which made them difficult to see from the air"); Shute, 899 F.2d at 1003 (configuration of the five different poles made it "foreseeable that a pilot would be `fooled' by the wire-pole configuration and strike the power lines"); Bailey v. Pennsylvania Electric Co., 409 Pa.Super. 374, 598 A.2d 41, 46 (1991) (utility poles were unpainted).
Here, plaintiffs failed to adduce evidence sufficient to prove that the power lines were unreasonably dangerous. The trial court should have granted the Motion for Judgment notwithstanding the verdict because the defendant had no duty to place marker balls on the wires in question. I believe the question of duty is dispositive. I would reverse.
NOTES
[1] See, Kimbrough v. J.R.J. Real Estate Investments, Inc., 932 S.W.2d 888, 889 (Mo.App. E.D.1996).
[2] The mile markers decrease numerically travelling south on the Mississippi.
[3] The expert stated as a consultant for power companies, he does not always recommend the power lines should be marked.
[4] See, Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 893 P.2d 26, 30 (App.1994) (court noted their courts have held if helicopters are "known to operate in a particular area, the owner may be required to mark power lines in that area to make them reasonably safe." ).
[1] An intoxicated pilot is not foreseeable in the same way as an intoxicated driver of a motor vehicle. The roads are lined with restaurants and other establishments that sell liquor. We all know that a significant number of their patrons will drive home after drinking. A certain level of drinking and driving is thus foreseeable. This is decidedly not so in the case of pilots. The law does not tolerate any level of intoxication in pilots. FAA regulations strictly prohibit persons from acting or attempting to act as a crewmember of a civil aircraft within 8 hours of consuming any alcoholic beverage. 14 C.F.R. § 91.17. It strikes me as inappropriate to require power companies to take precautions against an intoxicated pilot.
[2] Wires above 500 feet must be marked. 14 C.F.R. § 77.23(a)(1) (2000). Structures over 200 feet above ground are considered obstacles to air navigation if they are within three nautical miles of an airport whose longest runway is more than 3,200 feet, and may be required to be marked. Id. § 77.23(a)(2) (emphasis added).
[3] See also, Baine v. Oklahoma Gas and Elec. Co., 850 P.2d 346 (Okla.Ct.App.1992), adopting the same standard.
[4] Yoffee v. Pennsylvania, 385 Pa. 520, 123 A.2d 636 (1956); El Paso Natural Gas Co. v. United States, 343 F.2d 145 (9th Cir.1965); Bailey v. Pennsylvania Electric Co., 409 Pa.Super. 374, 598 A.2d 41, 46 (1991); Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000).
[5] United States v. Washington, 351 F.2d 913 (9th Cir.1965); Yoffee v. Pennsylvania, 385 Pa. 520, 123 A.2d 636 (1956).
[6] Yoffee v. Pennsylvania, 385 Pa. 520, 123 A.2d 636 (1956); El Paso Natural Gas Co. v. United States, 343 F.2d 145 (9th Cir.1965); Arizona Public Service Company v. Brittain, 107 Ariz. 278, 486 P.2d 176 (1971); Bailey v. Pennsylvania Electric Co., 409 Pa.Super. 374, 598 A.2d 41, 46 (1991); Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000).
[7] Shute v. Moon Lake Elec. Ass'n, 899 F.2d 999 (10th Cir.1990).
|
162 F.3d 94
Charpentierv.Marathon Oil Company*
NO. 97-31021
United States Court of Appeals,Fifth Circuit.
October 21, 1998
Appeal From: W.D.La. ,No.H-96-CV-529
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
|
326 S.C. 503 (1997)
485 S.E.2d 112
The STATE of South Carolina, Respondent,
v.
Larry MORGAN, Appellant.
No. 2653.
Court of Appeals of South Carolina.
Heard November 7, 1996.
Decided April 7, 1997.
Rehearing Denied May 22, 1997.
*505 Albert V. Smith, Spartanburg, for appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor Holman C. Gossett, Jr., Spartanburg, for respondent.
HOWELL, Chief Judge:
Larry Morgan was found guilty of first degree criminal sexual conduct with a minor and was sentenced to thirty years imprisonment. He appeals, arguing that the trial court erred in admitting two expert opinions that lacked the proper basis of scientific reliability. We affirm.
I.
The victim (Morgan's step-granddaughter and age ten at trial) testified that when driving her home on February 5, 1994, Morgan "stopped on the road and he got out of the seat and walked over to me and he unzipped his pants, pulled out his private part and put it in mine." She stated that she sat upright in the vehicle seat for the entire time, and Morgan lay on top of her and moved up and down for about ten minutes. The child also testified that she told Morgan "he was hurting *506 me, but he said tough luck." She also stated that Morgan had sexually abused her between five and ten times before the February 1994 incident, beginning when she was four or five. Morgan's attorney questioned the child about details of the event and who she told, but he did not otherwise cross-examine her about her post-incident behavior.
A physician, Dr. Jan Porter, was qualified as the State's expert in "the field of family medicine and the field of sexual abuse and the recognition of those characteristics, traits, and behavioral symptoms exhibited by victims of sexual abuse." Porter was offered to give an opinion that "yes, the child has been sexually abused even though there is no medical evidence." She first examined the child on March 1, 1994, and the child informed her that someone had touched her in her private areas on a "number of occasions." Porter stated the child's behavior was normal during the examination, except when she commenced the genital area examination, when the child became anxious and frightened and was unable to hold still. Porter abandoned any effort to try to examine her genitalia that day, gave the mother a sedative for the child, and examined her three days later. She examined the child's genitalia during this second visit and "[e]verything looked totally normal."
Porter testified that her "job as a physician is to be an advocate for" her patients. In her opinion, Porter "certainly could not rule out any sexual abuse with this exam," and her examination and observation of the child were consistent with sexual abuse. On cross-examination she testified that there is no behavioral pattern that "is absolutely diagnostic without a doubt of sexual abuse." She stated that though the physical examination neither proved nor disproved sexual abuse, there were "behavioral patterns" that made her highly suspicious, and the child's behavior itself was physical evidence that made her suspicious. Her opinion was "based partially on subjective data and is based partially on my objective observation of her behavior." Porter stated that there was no single, specific finding which influenced her opinion, rather, "[i]t was the constellation of what the child told me in her history, her behavior on two occasions when I examined her and the fact that with her exam being totally normal it did not exclude her description of what occurred." Porter stated that she did not *507 validate the child's story, nor was she able to recall the names of the authors or studies she partially relied upon in arriving at her conclusion.
Sharon Crenshaw was qualified as the State's "expert mental health counselor in the field of evaluation and treatment of sexually abused children and posttraumatic stress." Her testimony was offered to prove that the child exhibited behavioral symptoms consistent with posttraumatic stress disorder (PTSD), rape trauma syndrome (RTS), and sexual abuse. Crenshaw stated that she has a bachelor's degree and a master's degree in special education, and she is employed as a licensed professional counselor. Although certified as a school psychologist and chief mental health counselor, Crenshaw considered herself a counselor and a psychotherapist, rather than a psychologist, and as such, there are "not really areas of expertise. In order to be licensed you have to prove your competency in several areas." Crenshaw testified that she did not videotape nor use structured techniques; instead, her methods included interviewing the child, observing the child's symptoms and behaviors, and looking at the child's drawings. Finally, she stated that she had experience working with DSS and the State "in actually questioning children in determining whether they are being truthful, or not."
Crenshaw saw the child on four occasions between July and December 1994. Based on her conversations with the child and her mother, Crenshaw recommended that she work with the child "on decreasing her distress symptoms." She "also referred [the child] for group therapy for sexual-abuse victims within her age range." Crenshaw testified that the child reported to her a sexual assault that occurred inside a van. Crenshaw described some of the symptoms of PTSD, described the child's behavior problems, and diagnosed the child as having "numerous symptoms of posttraumatic stress syndrome." In Crenshaw's opinion, the child "exhibited characteristics consistent with being sexually abused."
The trial court overruled Morgan's various challenges to the expert opinions, holding that any defects went to the weight but not admissibility of their testimony, and any weaknesses could be brought out on cross-examination. While the court did not limit the purpose, it did limit the form of each expert's *508 testimony. Neither expert gave an outright conclusion of sexual abuse or PTSD, but used only "consistent with" language.
II.
Expert testimony concerning child abuse typically comes from two sources: medical evidence provided by physicians and behavioral science evidence provided by psychiatrists, psychologists, and social workers. John E.B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L.Rev. 1, 19-25 (1989).[1] Where a physician's diagnostic impression is based on the medical as well as the behavioral aspects of child abuse, the resulting opinion is scrutinized from both perspectives. Myers, supra at 24-25, 51. While the admissibility of expert child abuse testimony is subject to attack on several fronts, Morgan raises only one challenge to the admissibility of this evidence. He argues that in both opinions, "there was no scientific basis that the facts or data was of a type reasonably relied upon by experts in the particular field forming opinions or inferences upon the subject."
Because we are bound by the supreme court's ruling in State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993), we hold that the admissibility of the two behavioral science expert opinions at issue was not subject to admissibility challenges based upon reliability. In reaching this result, we point out that the South Carolina Rules of Evidence are inapplicable here, because the July 1995 trial below was held prior to the effective date of the Rules. See Rule 1103, SCRE (Rules effective September 3, 1995). Moreover, Morgan's reliance on the federal standard for admitting scientific evidence, Daubert *509 v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), is misplaced, because at least prior to the adoption of the SCRE, State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979), was the standard for determining the admissibility of novel scientific evidence.[2]
A.
Prior to Schumpert, the case law suggests, although somewhat equivocally, that expert behavioral science evidence like that at issue must be found sufficiently reliable before being admitted into evidence. There are two distinct but overlapping lines of cases in this area. First, when expert behavioral science testimony was offered in sexual assault cases, reliability could impact admissibility, depending on the purpose for which the evidence was being introduced. Second, where any expert (not just behavioral science) opinion is based upon scientific methods and techniques, reliability could impact admissibility, depending on the novelty and general acceptance of the expert's underlying methods.
1. State v. Hudnall, 293 S.C. 97, 359 S.E.2d 59 (1987)
The admissibility of a particular piece of evidence often turns on the purpose for which it is offered, and expert opinion testimony in child abuse cases is no different. Before Schumpert, behavioral science evidence concerning syndromes and behavioral characteristics of sexual abuse victims was not *510 permitted as substantive proof of the underlying crime itself or to bolster a "child's testimony that the crime had in fact occurred." State v. Hudnall, 293 S.C. 97, 100, 359 S.E.2d 59, 62 (1987). Instead, this type of testimony could only be offered to rehabilitate and "explain any seemingly inconsistent responses to the trauma." Id. at 100, 359 S.E.2d at 62.
Although the court did not articulate its rationale in full, Hudnall had two distinct bases. First, Hudnall was grounded on the well-established character evidence rule which prevents the admission of bolstering evidence, because a witness is presumed to be credible and have good character in the absence of an attack. See S.C. Dep't of Highways & Pub. Transp. v. ESI Invs., 322 S.C. 147, 470 S.E.2d 387 (Ct.App. 1996), cert. granted, (1997); E. Warren Moise, Impeachment Evidence: Attacking and Supporting the Credibility of Witnesses in South Carolina 69 (1996); Hudnall, 293 S.C. at 100, 359 S.E.2d at 62; see also State v. Rogers, 293 S.C. 505, 506, 362 S.E.2d 7, 8 (1987) (Hudnall rule holds that evidence "of behavioral traits of a sexual abuse child victim ... is not admissible where it serves only to bolster the child's testimony that the crime occurred."). Second, Hudnall held that evidence of the victim's post-incident behavior was irrelevant when offered as substantive proof of the crime, because syndromes, behavioral checklists, and other techniques were developed to identify and treat emotional problems, not to determine whether a person was actually sexually assaulted in the past. Hudnall, 293 S.C. at 100, 359 S.E.2d at 61; see also State v. Bradley, 293 S.C. 526, 527, 362 S.E.2d 19, 20 (1987) (Expert's testimony "regarding common indicators of child sexual abuse including role-playing and sexually explicit behavior... is inadmissible as proof of the offense."). Finally, Hudnall considered the reliability of the expert's methods from both of these two perspectives, holding that the behavioral sciences had not yet developed sufficiently reliable methods to determine whether a victim is telling the truth, see, e.g., State v. Rimmasch, 775 P.2d 388, 406 (Utah 1989) ("[N]othing has come to our attention suggesting a general acceptance of the proposition that those who regularly treat symptoms of sexual abuse are capable of determining with a high degree of reliability the truthfulness of allegations that one has been abused."), or whether a particular event (sexual assault) had in *511 fact occurred in the past. Hudnall's limitation is in accordance with the approach several other jurisdictions have taken when behavioral science evidence is offered for either bolstering or substantive purposes.[3]
However, in Schumpert the supreme court overruled Hudnall, Bradley, and Rogers and held that a victim's behavior (and also an expert's interpretation of that behavior) makes it more or less probable that some event occurred in the past. See Schumpert, 312 S.C. at 506, 435 S.E.2d at 861 (Expert testimony and behavioral evidence "makes it more or less probable that the offense occurred."). Schumpert held this type of evidence to be relevant but still subject to challenges that its probative value is outweighed by its prejudicial effect. At a minimum therefore, Schumpert holds that evidence of the victim's post-incident behavior may be relevant when offered for the purpose of substantive proof of the crime itself.
The Schumpert court never expressly addressed the two other central concerns of Hudnall, however. Although Schumpert briefly mentioned Hudnall's limitation to rebuttal purposes, the Schumpert court never truly confronted the bolstering issue, but apparently equated character evidence with substantive evidence of sexual abuse. Moreover, Schumpert was silent as to another crucial aspect of Hudnall: whether behavioral science could reliably ascertain whether a victim was telling the truth or whether some event did in fact occur in the past. While we are reluctant to read Schumpert's *512 silence on these two linchpins of Hudnall too broadly, it is difficult to avoid the conclusion that the court implicitly overruled these two aspects of Hudnall as well as the relevancy aspect. Accordingly, Morgan's arguments that the opinions were admitted as improper bolstering evidence and were not sufficiently reliable cannot stand in light of Schumpert.
2. State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979)
Whatever reliance Morgan places on Jones is also unavailing. Jones is frequently cited as the leading case for the admissibility of scientific evidence, and its applicability turns on "the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom." Jones, 273 S.C. at 731, 259 S.E.2d at 124 (quoting People v. Marx, 54 Cal.App.3d 100, 126 Cal.Rptr. 350, 355-56 (1975)). In Jones the supreme court held that the admissibility of scientific bite-mark evidence depends on whether the experts relied on scientifically and professionally established techniques. The purpose of this standard is to prevent the "fact finders from being misled by the `aura of infallibility' that may surround unproven scientific methods." In re Amber B., 191 Cal.App.3d 682, 236 Cal.Rptr. 623, 629 (1987). Unlike Hudnall `s concerns, which were specific to only one narrow category of experts, the Jones inquiry focuses more on the methods and techniques the expert relies upon, rather than the purpose for which the expert opinion is offered. In fact, Jones has been frequently cited in permitting experts to offer substantive proof of the underlying offense. See, e.g., State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990) (DNA print testing and the process of RFLP analysis were admissible to prove that DNA in sperm found on victim matched DNA found in blood sample of defendant); cf. State v. Wright, 322 S.C. 253, 471 S.E.2d 700 (1996) (although Jones was not cited, the court held that polygraph results are inadmissible because of their questionable reliability).
In State v. Whaley, 305 S.C. 138, 406 S.E.2d 369 (1991), the supreme court made clear that not all expert testimony is subject to a Jones challenge. The Whaley court held that Jones was not applicable to the testimony of a psychologist who was an expert in eyewitness identification, because where *513 "the witness is a qualified psychologist who simply explains how certain every day experience shown by the record can affect human perception and memory, and through them, the accuracy of eyewitness identification, we see no reason to require a greater foundation." Id. at 142, 406 S.E.2d at 371-72. Although finding Jones inapplicable, Whaley imposed some limitations on an eyewitness's opinion: "nothing in this opinion should be construed as allowing an expert to give his or her opinion of a particular witness'[s] identification." Id. at 143, 406 S.E.2d at 372.
Jones and Whaley demonstrate that a trial court's threshold inquiry is whether the expert's methods and techniques even fall within Jones's central purpose: to prevent the aura of infallibility which surrounds "scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom" from misleading the fact finders. Jones, 273 S.C. at 731, 259 S.E.2d at 124. If the expert's opinion does not fall within Jones, questions about the reliability of an expert's methods go only to the weight, but not admissibility, of the testimony. However, if Jones's concerns are implicated, then the trial court must make a preliminary ruling on reliability before allowing the testimony to be admitted into evidence.[4]
In light of Schumpert, we need not analyze the methods these two experts used. Schumpert's overruling of Hudnall, which was grounded in part on reliability (albeit for differing reasons than Jones), impliedly dispenses with any Jones-type admissibility concerns based upon reliability. Accordingly, the Jones analysis is not applicable to the type of behavioral science testimony at issue.[5]
*514 B.
Because Schumpert applies to behavioral science evidence only, to the extent that Dr. Porter gave a medical opinion, her testimony must be analyzed from an additional perspective. See Myers, supra at 24-25, 51. In State v. Lopez, 306 S.C. 362, 412 S.E.2d 390 (1991), a pre-Schumpert case, the supreme court held that, unlike behavioral science methods which are generally held "not sufficiently reliable as scientific evidence to justify their use to prove a crime occurred," id. at 367, 412 S.E.2d at 393, medical evidence may be sufficiently reliable scientific evidence such that it may be used to "support an inference that a child's injuries were not sustained by accidental means." Id. Such testimony is typically based on a physician's clinical diagnostic examination and the child's medical history. The medical witness is often called to describe the results of the examination, offer an opinion as to the cause of any injuries, establish whether penetration occurred, and answer questions as to whether the injuries could have been inflicted in a particular way or whether the caretaker's explanation is reasonable. State v. J.Q., 130 N.J. 554, 617 A.2d 1196, 1201 (1993) (citing Myers, supra at 48-49).
Although there may be limitations to this type of testimony,[6] and even if there was error in its admission here, *515 we find no prejudice in light of the other expert testimony presented. See generally State v. Brown, 286 S.C. 445, 334 S.E.2d 816 (1985) (despite improper admission of doctor's testimony which related full history as given by the child, error was harmless in light of other testimony presented at trial); Honea v. Prior, 295 S.C. 526, 369 S.E.2d 846 (Ct.App. 1988) (any error caused by the court's admission of one expert's opinion on PTSD was harmless in light of a second expert's testimony concerning victim's PTSD).
III.
In many jurisdictions questions regarding the reliability of a behavioral scientist's opinion may arise in different contexts of the admissibility question, depending on whether the issue is substantive proof of the crime itself, or character evidence, or the methods and techniques that the expert utilizes. In Schumpert our supreme court impliedly relaxed some of these threshold reliability concerns. However, Schumpert expressly leaves open expert behavioral science testimony to challenges that its probative value is outweighed by its prejudicial effect. See Schumpert, 312 S.C. at 506, 435 S.E.2d at 862; see also State v. Milbradt, 305 Or. 621, 756 P.2d 620, 624 (1988) ("We have said before, and we will say it again, this time with emphasisno psychotherapist may render an opinion on whether a witness is credible in any trial in this state. The assessment of credibility is for the trier of fact and not for psychotherapists."); Foret, 628 So.2d at 1129 (Prejudice can result from an expert's testimony about the victim's credibility, by giving factfinders "little more than a false sense of security based on the incorrect assumption that a reasonably accurate scientific explanation" for behavior has been provided.) (citations omitted).
Here, however, Morgan has not raised an unfair prejudice argument on appeal. Accordingly, because Morgan's challenges cannot stand in light of Schumpert, we agree with the State. There was evidence to support the trial court's qualification *516 rulings; thus, the court did not abuse its discretion in qualifying the two experts. Honea v. Prior, 295 S.C. 526, 369 S.E.2d 846 (Ct.App.1988) (trial court's rulings on qualifications of expert witnesses are reviewed under abuse of discretion standard).
Therefore, for the foregoing reasons, Morgan's conviction is hereby
AFFIRMED.
HUFF and HOWARD, JJ., concur.
NOTES
[1] Hereinafter "Myers." This article was written by an interdisciplinary group of authors, including a social worker, two psychologists, a pediatrician, a child psychiatrist, and an attorney, and it has been cited favorably as a comprehensive overview of the use of experts in child sexual abuse cases. See, e.g., Gier v. Educational Service Unit No. 16, 845 F.Supp. 1342, 1344 (D.Neb.1994), aff'd, 66 F.3d 940 (8th Cir.1995); Steward v. State, 652 N.E.2d 490, 493 (Ind.1995); State v. Foret, 628 So.2d 1116, 1124 (La.1993); Goodson v. State, 566 So.2d 1142, 1144-45 (Miss.1990); State v. J.Q., 130 N.J. 554, 617 A.2d 1196, 1201 (1993); State v. Jones, 71 Wash.App. 798, 863 P.2d 85, 97 (1993), cert. denied, 124 Wash.2d 1018, 881 P.2d 254 (1994).
[2] While many of Jones's progeny borrow principles from Daubert's predecessor, Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), our courts never adopted the Frye standard completely in favor of Jones's more liberal approach. See State v. Ford, 301 S.C. 485, 488, 392 S.E.2d 781, 783 (1990) ("South Carolina, however, has never specifically adopted the Frye test and has employed a less restrictive standard in regard to the admissibility of scientific evidence."). Moreover, the existence of Rule 24(a), SCRCrimP, and Rule 43(m)(1), SCRCP, since 1990 does not yield a different result, because the case law under these two rules did not deviate from Jones and because Daubert was defined, not solely by Fed.R.Evid. 702, but also by the breadth of the entire Federal Rules of Evidence themselves. See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996), cert. denied, ___ U.S. ___, 117 S.Ct. 988, 136 L.Ed.2d 870 (1997); State v. Dinkins, 319 S.C. 415, 462 S.E.2d 59 (1995).
[3] Unlike in Schumpert, many courts have turned a jaundiced eye toward the reliability of techniques that behavioral scientists use to ascertain whether sexual abuse has in fact occurred in the past, including: (1) vague symptomology, State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993); (2) behavioral checklists, Gier, 845 F.Supp. at 1348 (An expert opinion is essentially irrefutable when based upon a constellation of factors, rather than one symptom or indicator, because the cross-examiner cannot discredit the expert's opinion); (3) Post-traumatic Stress Disorder (PTSD) and Rape Trauma Syndrome (RTS), Spencer v. General Electric Co., 688 F.Supp. 1072 (E.D.Va.1988); State v. Ballard, 855 S.W.2d 557 (Tenn.1993); (4) child molestation syndrome, In re Sara M., 194 Cal.App.3d 585, 239 Cal.Rptr. 605 (1987); and (5) general characteristics of sexually abused children as a class, Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 836 (1992) ("Permitting an expert to testify about an unsupportable behavioral profile and then introducing testimony to show that the witness acted in conformance with such a profile is an erroneous method of obtaining a conviction.").
[4] When Jones is applicable, reliability and general acceptance may be established by judicial notice, reliance on prior precedent, and evidentiary hearings. See generally State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996); State v. Squires, 311 S.C. 11, 426 S.E.2d 738 (1992); State v. China, 312 S.C. 335, 440 S.E.2d 382 (Ct.App. 1993).
[5] Three other jurisdictions which expressly considered whether a Jones analogue applies to expert behavioral science evidence have drawn the line at "pure personal opinion" testimony. In California, a Jones analogue is not applied when the testimony is a personal opinion based upon the expert's own experience, skills, and training, rather than a new method of proof, such as an opinion based upon a psychological profile or syndrome. Seering v. California Dep't of Social Servs., 194 Cal.App.3d 298, 239 Cal.Rptr. 422, 432 (1987) (citing Kelly-Frye, California standard for admission of new scientific evidence established by People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976), and Frye); see also In re Amber B., 191 Cal.App.3d 682, 236 Cal.Rptr. 623 (1987). Florida adopted this approach in Flanagan v. State, 625 So.2d 827, 828 (Fla.1993), and Washington appears to follow the same general approach. See State v. Jones, 71 Wash.App. 798, 863 P.2d 85, 95-98 (1993), cert. denied, 124 Wash.2d 1018, 881 P.2d 254 (1994).
[6] At least in certain instances, experts may be required to state that their conclusions are based upon a reasonable degree of medical or clinical certainty. See Payton v. Kearse, 319 S.C. 188, 460 S.E.2d 220 (Ct.App.1995), cert. granted, (1996); Myers, supra at 34. Moreover, a perpetrator's identity is rarely a factor that a physician relies upon in diagnosing or treating a victim. State v. Hudnall, 293 S.C. 97, 359 S.E.2d 59 (1987); State v. Brown, 286 S.C. 445, 334 S.E.2d 816 (1985). Expert medical opinions based solely on a patient's subjective history may also be suspect. See generally United States v. Whitted, 11 F.3d 782, 786 (8th Cir.1993); United States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986). Although for differing reasons, some courts limit the form of this type of testimony and prefer "consistent with" or "not inconsistent with" language rather than an outright conclusion of sexual abuse. E.g., Whitted, 11 F.3d at 785; cf. State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986); People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886 (1988); State v. Cressey, 137 N.H. 402, 628 A.2d 696, 699-700 (1993).
|
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2769
IN THE MATTER OF:
COMMODITY FUTURES TRADING COMMISSION,
Petitioner.
KRAFT FOODS GROUP, INC., and MONDELĒZ GLOBAL LLC,
Parties in Interest.
____________________
Petition for a Writ of Mandamus to the United States
District Court for the Northern District of Illinois, Eastern Division.
No. 15 C 2881 — John Robert Blakey, Judge.
____________________
SUBMITTED OCTOBER 15, 2019 — DECIDED OCTOBER 22, 2019
____________________
Before EASTERBROOK, RIPPLE, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. In 2015 the Commodity Fu-
tures Trading Commission filed a civil action against Kraft
Foods Group and Mondelēz Global. It was se\led in August
2019, and the parties’ bargain, which the judge entered as a
consent decree, includes this provision:
Neither party shall make any public statement about this case
other than to refer to the terms of this se\lement agreement or
public documents filed in this case, except any party may take
2 No. 19-2769
any lawful position in any legal proceedings, testimony or by
court order.
Shortly after the district court entered its order, the Commis-
sion issued a press release announcing the suit’s resolution.
Two Commissioners (Dan Berkovib and Rostin Behnam)
filed statements explaining why they voted in favor of ac-
cepting this se\lement.
Kraft and Mondelēz asked the district judge to hold the
Commission and Commissioners in contempt of court for
issuing the press release and concurring statements. The dis-
trict judge set the motion for a hearing and directed Chair-
man Heath Tarbert, Commissioners Berkovib and Behnam,
the Commission’s Director of Enforcement, and several of
the Commission’s other employees to appear in court and
testify under oath. The judge stated that he would adminis-
ter Miranda warnings to these witnesses in preparation for a
finding of criminal contempt and would demand that the
witnesses explain the thinking behind the press release and
the separate statements. Chairman Tarbert and the Commis-
sioners protested. After a motion asking the district court to
lift the demand for their presence and the threat of criminal
sanctions went unaddressed for approximately two weeks,
and the date scheduled for the hearing approached, the
Commission filed a petition for a writ of mandamus. A mo-
tions panel issued a stay pending further order of this court.
We also ordered all of the papers to be placed in the pub-
lic record. The district judge had directed the parties not to
say anything in public about the upcoming hearing and to
keep all of their legal filings secret, an order that is incon-
sistent with the law of this circuit. See, e.g., Union Oil Co. v.
Leavell, 220 F.3d 562, 567–68 (7th Cir. 2000); Herrnreiter v. Chi-
No. 19-2769 3
cago Housing Authority, 281 F.3d 634, 636–37 (7th Cir. 2002).
Those two decisions hold that a confidentiality clause in the
litigants’ agreement does not authorize secret adjudication.
We ordered Kraft and Mondelēz to respond to the peti-
tion and invited the district judge to do so. See Fed. R. App.
P. 21(b)(1), (4). The district judge’s response states, among
other things, that he no longer contemplates the possibility
of criminal contempt, so that aspect of the controversy has
dropped out. Everything we say from now on concerns civil
contempt only.
Chairman Tarbert and Commissioners Berkovib and
Behnam have moved for leave to intervene. We grant that
motion. Although the Commission is representing their in-
terests adequately for the present, the threat of being per-
sonally penalized for contempt of court entitles them to be
litigants in their own right, so that they may take such steps
as they deem wise to protect their personal interests.
Mandamus is a drastic remedy, reserved for urgent
needs, but, for all that, it remains available to a litigant who
can establish a clear right to relief and lacks any other way to
protect his or her rights. See, e.g., Cheney v. United States Dis-
trict Court, 542 U.S. 367 (2004); Ex parte Fahey, 332 U.S. 258
(1947).
The district court’s order directing the Chairman and two
members of the Commission, plus members of the staff, to
appear for questioning in open court cannot be reviewed on
appeal from a final decision. The time taken away from their
official duties will be lost forever.
Cheney holds that mandamus is the appropriate remedy
when a district court has authorized an inquest into the in-
4 No. 19-2769
ternal deliberations of the Executive Branch’s senior officials.
See also, e.g., In re United States, 398 F.3d 615 (7th Cir. 2005).
That’s a good description of the order requiring the Chair-
man and two Commissioners, appointed by the President on
advice and consent of the Senate, to appear and reveal what
lies behind their published words. Many decisions hold that
mandamus is appropriate when a district judge inappropri-
ately compels a ranking federal official to appear personally
rather than by counsel. See, e.g., In re United States, 624 F.3d
1368, 1372 (11th Cir. 2010); In re Cheney, 544 F.3d 311, 314
(D.C. Cir. 2008); In re United States, 197 F.3d 310, 313–14 (8th
Cir. 1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); In re
United States, 985 F.2d 510, 512 (11th Cir. 1993); United States
Board of Parole v. Merhige, 487 F.2d 25, 29 (4th Cir. 1973).
The district court’s order requiring the Chairman, Com-
missioners, and members of the staff to appear for question-
ing might be supportable on two grounds: first, that they po-
tentially could be held in contempt; second, that their testi-
mony is essential to determine whether the Commission is in
contempt. Neither of these potential justifications suffices.
We start with the possibility that the persons compelled
to appear may themselves be in contempt. They are not par-
ties to the agreement and consent decree, so the only basis
for adjudicating them in contempt would be Fed. R. Civ. P.
65(d)(2)(B), which says that “the parties’ officers, agents,
servants, employees, and a\orneys” are bound by an injunc-
tion. But that clause would control only if the Commission
has the authority to bind its members, and it does not.
Whenever the Commission issues for official publication any
opinion, release, rule, order, interpretation, or other determina-
tion on a ma\er, the Commission shall provide that any dissent-
ing, concurring, or separate opinion by any Commissioner on
No. 19-2769 5
the ma\er be published in full along with the Commission opin-
ion, release, rule, order, interpretation, or determination.
7 U.S.C. §2(a)(10)(C). In other words, every member of the
Commission has a right to publish an explanation of his or
her vote.
This is a right that the Commission cannot negate. It
could not vote, three to two, to block the two from publish-
ing their views. So if we understand the consent decree as an
effort to silence individual members of the Commission, it is
ineffectual, for no litigant may accomplish through a consent
decree something it lacks the power to accomplish directly,
unless some other statute grants that power—and no one ar-
gues that any other statute overrides §2(a)(10)(C). See Dunn
v. Carey, 808 F.2d 555 (7th Cir. 1986); Kasper v. Board of Elec-
tion Commissioners, 814 F.2d 332, rehearing denied, 814 F.2d
345 (7th Cir. 1987); People Who Care v. Rockford Board of Educa-
tion, 961 F.2d 1335, rehearing denied, 964 F.2d 639 (7th Cir.
1992); Paige v. Cisneros, 91 F.3d 40 (7th Cir. 1996). And be-
cause members of federal agencies are entitled to the assis-
tance of their staffs, a statute entitling the Commissioners to
speak their minds also means that it would be inappropriate
to penalize persons who helped them do it.
Now consider the possibility that testimony from the
Chairman, Commissioners, and staff members is essential to
decide whether the Commission as an institution is in con-
tempt. The district judge apparently believed that only evi-
dence about a litigant’s thoughts and goals supports an ad-
judication in contempt, and who other than the Chairman
and Commissioners could provide that evidence? But the
Supreme Court has held that disputes about civil contempt
must be resolved objectively. See, e.g., Taggart v. Lorenzen,
6 No. 19-2769
139 S. Ct. 1795, 1804 (2019). The agreement, consent decree,
and press release are wri\en documents; their meaning and
effect depends on their four corners. See, e.g., United States v.
ITT Continental Baking Co., 420 U.S. 223 (1975). If the Com-
mission has done wrong, that is because of what the Com-
mission itself said and did, not because of what any of its
members or employees thought or planned. See, e.g., In re
United States, 398 F.3d at 618.
Judicial review of an agency’s decision is limited to the
agency’s official acts and the administrative record in all but
the most extraordinary situations. United States v. Morgan,
313 U.S. 409, 422 (1941). One important reason for that rule is
that intra-agency deliberations are covered by multiple
privileges, as Cheney and other decisions explain. Although
these privileges may be overridden for compelling reasons,
no such reason has been established or even asserted here.
Because the propriety of the Commission’s official deeds
depends on those deeds, plus the administrative record (if
any), there is neither need nor justification for testimony by
the Chairman, any Commissioners, or any members of the
agency’s staff. We issue a writ of mandamus and direct the
district court to withdraw its demand that these persons ap-
pear in court for questioning. We also direct the district court
to desist from any effort to hold the Chairman, Commission-
ers, and staff members personally in contempt of court, or
otherwise to look behind the Commission’s public state-
ments and the administrative record.
The Commission has asked us to go further and order the
district court to close the contempt proceeding. Kraft and
Mondelēz contend that four statements in the Commission’s
press release violate the consent decree:
No. 19-2769 7
• “The $16 million penalty is approximately three
times defendants’ alleged gain.
• “We are pleased to bring this matter to a successful
resolution, which terminates more than four years
of litigation.
• “The Commission believes that the Consent Order
advances our mission of fostering open, transparent,
and competitive markets.
• “We do not expect the Commission to agree to simi-
lar language in the future, except in limited situa-
tions where our statutory enforcement mission of
preventing market manipulation is substantially
advanced by the settlement terms and the public’s
right to know about Commission actions is not im-
paired.”
The Commission asserts that none of these statements vio-
lates the confidentiality clause of the agreement.
The argument for mandamus on this subject is weak. If
the district judge ultimately concludes that the Commission
is indeed in contempt, its arguments can be vindicated by an
appeal in the regular course. We therefore deny the request
for mandamus on this issue. Likewise we deny the Commis-
sion’s request that we transfer the district court’s proceed-
ings to a different judge. The judge who entered the consent
decree is in the best position to decide, as an initial ma\er,
whether its provisions have been violated. The final decision
will be subject to plenary review.
The motion to intervene is granted. The petition for
mandamus is granted to the extent we indicated above and
otherwise denied.
|
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-06-028 CR
____________________
JAY PAUL HEAD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B 030701-R
MEMORANDUM OPINION
A jury convicted appellant Jay Paul Head of three counts of child endangerment by
driving while intoxicated, and the trial court sentenced him to two years of confinement in
a state jail facility. See Tex. Pen. Code Ann. § 22.041(b), (c) (Vernon Supp. 2006). In this
appeal, Head contends the evidence was legally and factually insufficient to support his
conviction. We affirm.
The Evidence
Officer Robert Arnold of the Orange Police Department testified that on August 3,
2003, he was employed as a trooper for the Texas Department of Public Safety. At
approximately midnight on that date, Officer Arnold was traveling south on Highway 87 near
Bluebonnet Street when he observed a northbound vehicle traveling at seventy-five miles per
hour in an area where the posted speed limit was forty-five miles per hour. Officer Arnold
initiated a traffic stop. As Officer Arnold approached, he observed three children and an
adult female inside the vehicle, and Head was at the wheel. All three children were under
fifteen years of age.
When Officer Arnold began speaking to Head, he noticed the odor of an alcoholic
beverage on Head's breath and two open beer cans in the front console of the vehicle.
Officer Arnold also noticed that Head's eyes were red and glassy, and Head seemed unsteady
on his feet. Furthermore, Officer Arnold observed that Head slurred his speech, and Head
told Officer Arnold he had consumed six beers that day. Officer Arnold also noticed that
Head was disoriented. At that point, Officer Arnold decided to conduct field sobriety tests,
so he asked Head to perform the horizontal gaze nystagmus, walk and turn, and the one-leg
stand tests.
During the horizontal gaze nystagmus test, both of Head's eyes showed involuntary
jerking, lack of smooth pursuit, and nystagmus prior to forty-five degrees. When Officer
Arnold administered the walk and turn test, Head did not perform the turn properly, but
presented no other signs of intoxication. When Officer Arnold administered the one-leg
stand test, Head swayed while balancing and could not properly hold up his foot. Officer
Arnold also asked Head to blow into a portable intoxylizer, and the results exceeded the legal
limit. Based upon Head's performance during the field sobriety tests, Officer Arnold felt that
Head had "loss of both his mental and physical skills," and he placed Head under arrest. Officer Arnold testified that Head was driving while intoxicated, and Head thereby
placed the three children in imminent danger of death, bodily injury, or physical or mental
impairment. When Head arrived at the intoxylizer room of the Orange County Jail, he
refused to provide a breath sample and refused to participate in sobriety tests. Officer Arnold
made a videotape of Head in the intoxylizer room, and the State introduced the videotape into
evidence at trial. Officer Arnold testified that he was unable to produce the videotape of the
traffic stop because "there was a discrepancy between DPS and the District Attorney's Office
on how many tapes we should submit."
Officer David Vaughn, a patrol officer with the Orange Police Department, testified
that he saw Officer Arnold conducting a traffic stop of Head and stopped to render
assistance. Officer Vaughn saw three children, ages seven, four, and four months, in the
back seat of Head's vehicle, and he saw beer inside the vehicle. Officer Vaughn noticed that
Head swayed back and forth, Head's speech was slurred, and Head's breath smelled strongly
of an alcoholic beverage. Officer Vaughn also believed Head "really didn't know where he
was at." Officer Vaughn was not present when Officer Arnold administered the field
sobriety tests to Head. Officer Vaughn testified that he believed Head was intoxicated and
had lost the normal use of his mental or physical faculties. Officer Vaughn further testified
that Head placed the three children in imminent danger of death, bodily injury, or physical
or mental impairment.
Head testified that on the night Officer Arnold pulled him over, he was returning to
Vidor after spending the day at Crystal Beach. Head decided to return home rather than
spend the night at the beach because one of the children had fever. According to Head, he
was sitting at a red light when he realized he was going to be stopped by the authorities.
After Head parked his vehicle, Officer Arnold told him to exit the van, and Head walked over
to the officer's car. Head told Officer Arnold that he had consumed "a few beers."
According to Head, Officer Arnold "asked me if I would do a field sobriety test, because I
admitted that I had drank a couple of beers that day." Officer Arnold then administered the
horizontal gaze nystagmus, the one-legged stand, and the walk and return tests. Head
testified that he was barefoot, and he stepped on a pebble during the one-legged stand test.
Head further testified that it was difficult for him to speak clearly because he was missing
several of his upper teeth.
Standards of Review
In reviewing an issue of legal sufficiency, an appellate court views the evidence in
the light most favorable to the verdict to determine whether a rational fact finder could
have found each element of the offense beyond a reasonable doubt. Swearingen v. State,
101 S.W.3d 89, 95 (Tex. Crim. App. 2003)(citing Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Conner v. State, 67 S.W.3d 192, 197 (Tex.
Crim. App. 2001). When addressing an issue of factual sufficiency, the appellate court
asks whether "a neutral review of all the evidence, both for and against the finding,
demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the
jury's determination, or the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.
2000); see also King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). An appellate
court "must give due deference to the fact finder's determinations concerning the weight
and credibility of the evidence and will reverse the fact finder's determination only to
arrest the occurrence of a manifest injustice." Swearingen, 101 S.W.3d at 97. When
reviewing the sufficiency of the evidence after a jury trial, we consider all of the evidence
presented, whether properly or improperly admitted. Rodriguez v. State, 819 S.W.2d 871,
873 (Tex. Crim. App. 1991). It is the sole province of the jury to determine the credibility
of witnesses and to weigh contradictory testimony. Tex. Code Crim. Proc. Ann. art.
38.04 (Vernon 1979); Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).
Analysis
Officer Arnold testified that Head was driving a vehicle at an excessive rate of speed
in which three children under the age of fifteen were passengers. Officer Arnold also
testified that when he stopped Head, he noticed that Head's breath smelled of an alcoholic
beverage, Head's eyes were red and glassy, Head's speech was slurred, Head seemed
unsteady on his feet, and Head seemed disoriented. Officer Arnold also saw beer containers
in the vehicle. Head told Officer Arnold that he had consumed six beers. When Officer
Arnold conducted field sobriety tests, Head showed several signs of intoxication, and when
Head blew into a portable breath testing machine, the results exceeded the legal limit.
Officer Arnold testified that Head was driving while intoxicated, Head's mental and physical
skills were impaired, and Head thereby placed the three children in imminent danger of
death, bodily injury, or physical or mental impairment.
Officer Vaughn testified that Head swayed back and forth, Head's speech was slurred,
Head's breath smelled of an alcoholic beverage, and Head appeared to be disoriented.
Officer Vaughn also saw beer in the vehicle. Furthermore, Officer Vaughn testified that he
believed Head was intoxicated, had lost the normal use of his mental or physical faculties,
and had placed the three children in imminent danger of death, bodily injury, or physical or
mental impairment.
Viewing the record in the light most favorable to the verdict, a rational jury could
have concluded beyond a reasonable doubt that Head was driving while intoxicated, and that
his conduct of driving at an excessive rate of speed while intoxicated endangered the three
children who were passengers in Head's vehicle. The evidence is legally sufficient to
support the verdict. Furthermore, a neutral review of the entire record does not demonstrate
that the proof of guilt is so obviously weak as to undermine confidence in the jury's
determination, nor does it demonstrate that the proof of guilt is greatly outweighed by
contrary proof. The evidence is factually sufficient to support the verdict. We overrule
Head's sole issue and affirm the trial court's judgment.
AFFIRMED.
__________________________________
CHARLES KREGER
Justice
Submitted on October 26, 2006
Opinion Delivered December 20, 2006
Do not publish
Before Gaultney, Kreger and Horton, JJ.
DISSENTING OPINION
The evidence in this case does not show that the children were injured or that the
children were in imminent danger of injury despite the fact that Head, while under the
influence of alcohol, drove at a speed of seventy-five miles per hour in a forty-five miles per
hour zone around midnight while in light traffic. The arresting officer testified that Head's
speeding was the sole reason that he was stopped. Except for speeding, there was no
testimony that Head drove erratically, was about to collide with any fixed or moving object,
had nearly rear-ended any vehicle traveling in his lane, or had swerved or appeared about to
swerve from the traveled portion of the roadway. The arresting officer testified that Head
would not have been arrested had he not been intoxicated. Nevertheless, the State converts
a straight-forward misdemeanor driving-under-the-influence case to one that carries the
penalty of a state jail felony merely because children occupied Head's vehicle. (1)
In my opinion, based upon the evidence at the trial, Head's conduct was unlikely to
result in injuries to any of the children absent evidence that his intoxication caused him to
drive in a manner that, under the driving conditions at the time, made an accident imminent.
Speeding while intoxicated with children in the car is unjustifiable and is now a State jail
felony. However, the child endangerment statute under which Head was charged, in my
opinion, requires that a conviction be based on proof of more than a potential danger. The
danger must be imminent. While the proof of the imminence of the danger might be made
with statistical evidence regarding the increased risk of driving while intoxicated, there was
no statistical data offered at Head's trial.
The statute in issue, Section 22.041, requires that the State prove that the children
were placed in imminent danger, but does not define the term "imminent." Tex. Pen. Code
Ann. § 22.041(c)(Vernon 2003). "Imminent" is defined as: "ready to take place : near at
hand : IMPENDING . . . : hanging threateningly over one's head : menacingly near . . . ."
Webster's Third New International Dictionary 1130 (2002); see also Elder v. State,
993 S.W.2d 229, 230 (Tex. App.-San Antonio 1999, no pet.) (quoting Devine v. State, 786
S.W.2d 268, 270 (Tex. Crim. App. 1989)). Driving under the influence of alcohol coupled
with evidence of an imminent collision would be sufficient proof, but there is no such proof
in this case.
The evidence of an imminent collision must be proven beyond a reasonable doubt by
evidence, and a case where there is only an inference that driving under the influence or
speeding generally increases the risk of an accident is, in my opinion, insufficient to meet the
State's burden. See generally Millslagle v. State, 81 S.W.3d 895 (Tex. App.-Austin 2002,
pet. ref'd) (holding that drug ingestion and intoxication standing alone were insufficient
evidence of imminent danger under this provision). Since in this case the State failed to
prove beyond a reasonable doubt that the danger of injuring the children was imminent, I
would reverse Head's convictions. Because the majority holds otherwise, I dissent.
___________________________
HOLLIS HORTON
Justice
Dissent Delivered
December 20, 2006
1. Head's offense occurred on August 3, 2003, prior to the enactment of Section
49.045 of the Penal Code. Tex. Pen. Code Ann. § 49.045 (Vernon Supp. 2006).
Section 49.045 made driving while intoxicated with a child as a passenger a state jail
felony. If the majority is correct, the new provision was unnecessary as the State could
have prosecuted any driving while intoxicated where a child was a passenger under
Section 22.041(c) of the Penal Code. Compare Tex. Pen. Code Ann. § 22.041(c) with
Tex. Pen. Code Ann. § 49.045.
|
127 U.S. 213 (1888)
JONES'S ADMINISTRATOR
v.
CRAIG.
No. 235.
Supreme Court of United States.
Submitted April 18, 1888.
Decided April 30, 1888.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.
*214 Mr. G.E. Pritchett for appellants.
Mr. W.J. Connell for appellee.
MR. JUSTICE MILLER delivered the opinion of the court.
The appellants here, Henry O. Jones and John Jort, brought their bill in chancery against Walter Craig, the defendant, in the Circuit Court of the United States for the District of Nebraska.
The object of the bill was to remove a cloud upon the title to certain lands. The defendant had brought an action of ejectment to recover the possession, and, having a prima facie title of record upon which he could recover, this bill was filed for the purpose of setting up an equitable defence. Thereupon a temporary injunction was allowed, restraining Craig from prosecuting his action of ejectment until the chancery suit was decided.
The allegation of the bill was, that a deed under which the plaintiff in the ejectment suit asserted title was executed as a mortgage, with a written contract of defeasance when the money loaned should be repaid. To this bill a demurrer was filed, upon which the court made an order in the following language:
"If the plaintiff will amend bill and bring into court proper amount of money to redeem and pay taxes, all of same to bear interest from time money was due, and interest on taxes from date of payment at present rate of interest, then perpetual *215 injunction can be allowed. Costs of both suits to abide further order."
Afterwards the plaintiffs did file an amended bill, to which likewise there was a general demurrer. Upon the hearing of that demurrer the court made the following order:
"Henry O. Jones et al. |
v. > 193 H.
Walter Craig. |
"This cause coming on to be heard upon the demurrer of the defendant to the amended bill of complaint filed herein, and the court being fully advised in the premises, it is ordered that if within fifteen days the plaintiff bring into court the amount of the note and mortgage set forth in the bill of complaint, with interest thereon from the time the note became due, with interest thereon at ten per cent per annum until November 1, 1879, and from November 1, 1879, to date of this order, at seven per cent per annum, together with all taxes paid by defendant upon the land described in said bill, with interest thereon at ten per cent per annum, then the defendant be restrained from the further prosecution of the cause in ejectment set forth in said bill of complaint, and entitled Walter Craig v. Henry O. Jones; but if the plaintiff shall fail so to do within the time mentioned, the said demurrer to said bill be sustained and the said bill of complaint be dismissed, and the defendant herein be allowed to proceed with the prosecution of his said action at law. To the ruling and decision of the court the plaintiffs except."
This order, made upon the hearing of the demurrer, to a bill in chancery, is wholly irregular.
This court, however, has no jurisdiction of the case as it stands, because the order just cited is not a final decree. Something yet remains to be done in order to make it such, and that action depends upon whether or not the complainants will comply with the order to bring in the sum due on the mortgage. If that order is complied with, then a decree should be made, upon the hypothesis on which the order was made, in favor of the complainants in the bill, and quieting their title. If, however, the money is not brought into court, *216 then, according to the theory of the order, the bill of complaint should be dismissed. But, even assuming the right of the court to make the order, as well as its validity, the circumstances under which the bill of complaint is to be dismissed or the relief granted to the complainants named therein, and the sum to be paid, are matters which are yet to be determined, which may turn out either one way or the other, and which, when ascertained, will be the foundation for a final decree. There is no final decree as the matter now stands.
The appeal is therefore dismissed, and the case remanded to the Circuit Court for further proceedings.
|
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Ex parte Jaime Alexander Blanco
Appellate case number: 01-17-00383-CR
Trial court case number: 96-DCR-027953
Trial court: 240th District Court of Fort Bend County
Appellant, Jaime Alexander Blanco, through counsel, prematurely filed his notice
of appeal on March 9, 2017, from the order on writ of habeas corpus and motion to set
aside plea agreement, signed by the trial court on May 25, 2017, denying his habeas
corpus application filed under Texas Code of Criminal Procedure Articles 11.072 and
11.08. See TEX. R. APP. P. 27.1(b). Appellant alleges that his 1996 guilty plea should be
set aside because, although it was done before Padilla v. Kentucky, 559 U.S. 356 (2010),
it was not knowingly, intelligently, and voluntarily taken under the plea principles under
Strickland v. Washington, 466 U.S. 668 (1984).
On May 30, 2017, the clerk’s record was filed in this Court, but no trial court’s
certification of appellant’s right of appeal was filed. See TEX. R. APP. P. 25.2(a)(2). On
June 13, 2017, the Clerk of this Court issued a notice directing the district clerk to file a
supplemental clerk’s record containing the trial court’s certification of the appellant’s
right of appeal of the order on writ of habeas corpus and motion to set aside plea
agreement. See id. 25.2(d), 34.5(a)(12), (c)(1)–(2), 37.1. On July 20, 2017, the district
clerk filed a supplemental clerk’s record containing, among other things, an affidavit of
the deputy district clerk stating that no such trial court’s certification has been filed there.
In addition, the district court heard testimony at a writ hearing on February 21,
2017, denying relief on the record that day, and the writ hearing record was filed in this
Court on June 5, 2017. Although the district court signed the written order on the writ of
habeas corpus on May 25, 2017, no findings of fact or conclusions of law were entered in
that order, or included with the clerk’s record filed on May 30, 2017, as required by
Article 11.072. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a) (West 2015).
Accordingly, the Court sua sponte ABATES the appeal and REMANDS for the
district court to enter written findings of fact and conclusions of law, separate and apart
from any docket sheet notations in this case, in conjunction with the order on writ of
habeas corpus and motion to set aside plea agreement, signed on May 25, 2017. See Ex
Parte Villanueva, 252 S.W.3d 391, 396 (Tex. Crim. App. 2008) (reversing and
remanding the habeas denial because “[i]f the [trial] court determines from the face of an
application or documents attached to the application that the applicant is manifestly
entitled to no relief, the court shall enter a written order denying the application as
frivolous,” but “[t]he trial judge is required to enter findings of fact and conclusions of
law along with a written order in all other cases”) (citing, inter alia, TEX. CODE CRIM.
PROC. art. 11.072, § 7(a)); TEX. R. APP. P. 44.4(b).
Furthermore, the district court is ORDERED to execute a certification of
appellant’s right to appeal, indicating whether appellant has the right to appeal the order
on writ of habeas corpus and motion to set aside plea agreement, signed on May 25,
2017, including the findings of fact and conclusions of law to be entered. See TEX. R.
APP. P. 25.2(a)(2).
The district court shall make the appropriate findings and conclusions and enter a
certification of appellant’s right of appeal and shall cause them to be filed with the
district clerk within 15 days of the date of this order. We further order the clerk to file a
second supplemental clerk’s record containing the trial court’s findings of fact and
conclusions of law with this Court within 20 days of the date of this order.
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket without further
order of the Court when the second supplemental clerk’s record is filed with the Clerk of
this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
Acting individually Acting for the Court
Date: July 25, 2017
2
|
697 F.Supp. 642 (1988)
Arthur M. CHAMBLESS and Mildred H. Chambless, Plaintiffs,
v.
MASTERS, MATES & PILOTS PENSION PLAN, et al., Defendants.
No. 80 Civ. 4258 (RLC).
United States District Court, S.D. New York.
September 16, 1988.
*643 Wisehart & Koch, New York City (Arthur M. Wisehart, John W. Whittlesey, of counsel), for plaintiffs.
Proskauer Rose Goetz & Mendelsohn, New York City, (Bettina B. Plevan, Joseph Baumgarten, Katherine Raymond, of counsel), for defendants.
OPINION
ROBERT L. CARTER, District Judge.
Heedless of the admonition that "[a] request for attorney's fees should not result in a second major litigation," Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), plaintiffs move to reargue numerous aspects of the court's opinion of July 20, 1988. That opinion, with which familiarity is assumed, awarded plaintiffs $416,191.30 in attorney's fees and ensured Arthur Chambless an actuarially adjusted monthly pension benefit of $2,689.02. See Chambless v. Masters, Mates & Pilots Pension Plan, No. 80 Civ. 4258 (RLC) (S.D.N.Y. July 20, 1988) (Carter, J.) (hereinafter "July 20 opinion") [available on WESTLAW, 1988 WL80170]. All other motions and requests before the court were denied. Plaintiffs were given 20 days to document their application for costs and expenses and cost-of-living adjustments.
Plaintiffs now request a host of modifications to that decision. They also seek findings of fact pursuant to Rule 52(b), F.R. Civ.P., and a supplemental award of fees totalling over $90,000. Defendants crossmove *644 for reargument of the actuarial adjustment.[1]
I. Motions to Reargue
"The only proper ground on which a party may move to reargue an unambiguous order is that the court has overlooked `matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court." Adams v. United States, 686 F.Supp. 417, 418 (S.D.N.Y.1988) (Carter, J.) (quoting Bozsi Ltd. Partnership v. Lynott, 676 F.Supp. 505, 509 (S.D.N.Y.1987) (Carter, J.)); see United States v. Int'l Business Machines Corp., 79 F.R.D. 412, 414 (S.D.N.Y.1978) (Edelstein, J.). A motion to reargue "is not an occasion to reassert arguments previously raised, but dismissed by the court." Morgan Guar. Trust Co. of New York v. Garrett Corp., 625 F.Supp. 752, 756 (S.D.N.Y.1986) (Goettel, J.); see Caleb & Co. v. E.I. DuPont de Nemours & Co., 624 F.Supp. 747, 748 (S.D.N.Y.1985) (Sweet, J.). As shown below, neither side is entitled to the modifications sought.
A. Defendants' Motion
Defendants seek to reargue the court's decision to grant Chambless an actuarially adjusted pension. They maintain that the court must have overlooked the Pension Plan's lawful "retirement-defined" rule, which provides for the suspension of benefits during periods of employment in the maritime industry. Chambless did not comply with the rule until August, 1986. The actuarial adjustment, defendants argue, therefore conflicts with that rule and with previous court holdings by according plaintiff a pension before he was fully retired.
Defendants' motion is no more than a recapitulation of the argument that an actuarial adjustment is tantamount to an award of retroactive benefits.[2] The court squarely addressed that issue in the July 20 opinion. "The issue presented is whether an actuarially adjusted pension would be the functional equivalent of an award of retroactive benefits. The court finds that it would not be." Chambless v. Masters, Mates & Pilots Pension Plan, No. 80 Civ. 4258 (RLC), slip op. at 37 (S.D.N.Y.July 20, 1988). The underpinnings of that conclusion were amply explained. Defendants have not presented overlooked "matters or controlling decisions" that might reasonably be expected to require a different conclusion. Ashley Meadows Farm, Inc. v. Am. Horse Show Ass'n, 624 F.Supp. 856, 857 (S.D.N.Y.1985) (Sweet, J.). Their motion for reargument is denied.
B. Plaintiffs' Motion
Plaintiffs' motion to amend, alter, or clarify the court's decision is a laundry list of grievances. Not content with an award of over $400,000 in fees, plaintiffs seek the following: (1) interest on the actuarial adjustment and the attorney's fee award from the date of judgment to the date of payment; (2) reimbursement of Chambless' litigation-related travel expenses; (3) an extension of time for the filing of further documentation of costs and expenses; (4) additional fees; (5) discovery of defendants' billing sheets; and (6) factual findings concerning defendants' insurance coverage for attorney's fees and litigation costs.[3]
Plaintiffs do not explicitly invoke Local Civil Rule 3(j); nonetheless, their motion is largely one for reargument and will be treated as such. Local Rule 3(j) provides that "[n]o affidavits shall be filed by *645 any party unless directed by the court." Civil Rule 3(j), Local Rules of the United States District Courts for the Southern and Eastern Districts of New York. Plaintiffs have not been so directed, and their affidavits, to the extent that they pertain to reargument, will be disregarded.
1. Interest on the Enhanced Benefit
The July 20 opinion addressed the issue of interest on the fee award, not the issue of interest on the actuarially adjusted pension. Chambless now claims that he is entitled to interest on that amount. On the assumption that Chambless argues that the court overlooked a legal matter, reargument will be permitted. Upon reargument, however, his request is denied.
Chambless claims that interest must be computed from October 29, 1984, the date judgment was entered pursuant to the court's decision declaring the forfeiture of his pension until age 65 a nullity and ordering the Plan to award him a wage-related pension based on his 1967-1977 employment record. See Chambless v. Masters, Mates & Pilots Pension Plan, 602 F.Supp. 904 (S.D.N.Y.1984) (Carter, J.), aff'd, 772 F.2d 1032 (2d Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1189, 89 L.Ed.2d 304 (1986). Defendants concede Chambless' entitlement to payment of the difference between the amount due under the July 20 decision and the amount that the Plan in fact paid him. They refute his claim to interest on that amount, and argue that any interest due must run from the date of judgment to be entered pursuant to the July 20 decision.
The court is satisfied that defendants are correct. Under 28 U.S.C. § 1961, "[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of the judgment...." 28 U.S.C.A. § 1961 (West's Supp. 1988). Prior to the July 20 decision, Chambless was not deemed entitled to an enhanced pension benefit. Nor was the amount of any such enhancement fixed. The relevant date for the calculation of interest therefore appears to be that of judgment to be entered pursuant to the July 20 decision. See Powers v. New York Central Railroad Co., 251 F.2d 813, 818 (2d Cir.1958) (interest to be calculated from the date of entry of judgment following increase in money judgment on appeal); Chemical Bank & Trust Co. v. Prudence-Bonds Corp., 213 F.2d 443, 445 (2d Cir.), cert. denied, 348 U.S. 856, 75 S.Ct. 80, 99 L.Ed. 674 (1954); cf. Bailey v. Chattem, Inc., 838 F.2d 149, 153-155 (6th Cir.) (disfavoring this "formalistic" rule and following that adopted in the First, Third, Fifth, and Ninth Circuits), cert. denied, ___ U.S. ___, 108 S.Ct. 2831, 100 L.Ed.2d 931 (1988). Until that time, interest may not accrue.
2. Interest on the Fee Award
Plaintiffs also move to reargue the court's decision to deny them interest on the fee award. They present no overlooked matters or decisions that in any conceivable way would entitle them to reargument. Their motion is therefore denied.
Wells v. Bowen, 855 F.2d 37 (2d Cir. 1988), handed down after the July 20 decision, requires that the factor of delay in payment "be considered separately from the risks of loss and nonpayment" in a contingent-fee arrangement. Id. at 45; see Wisehart Letter to Court, Aug. 19, 1988. If plaintiffs mean to suggest that the court failed to take delay into account in assessing a reasonable fee, they are in error. The hourly rates awarded in the July 20 decision were "sufficiently generous ... to ensure that plaintiff will be amply compensated for all delay." Chambless v. Masters, Mates & Pilots Pension Plan, et al., No. 80 Civ. 4258 (RLC), slip op. at 27-28 (S.D.N.Y. July 20, 1988); see Defendants' Br. at 5-10. If plaintiffs merely seek greater compensation for that delay, they are not entitled to reconsideration of that issue. Wells affirms the district court's discretion "to decide how much weight to assign to the risks assumed by an attorney." Wells, 855 F.2d at 37. If plaintiffs suggest otherwise, they misconstrue the import of that decision.
3. Reimbursement for Travel Expenses
Plaintiffs ask the court to reconsider its refusal to permit recovery of costs and *646 expenses. They err in two respects: (1) The court fully considered 29 U.S.C. § 1132(g)(1) in making its determination[4], and (2) the request for costs and expenses was denied not because plaintiffs were deemed unentitled to recover them but because they had failed to establish their entitlement through adequate documentation. See Chambless v. Masters, Mates & Pilots Pension Plan, et al., No. 80 Civ. 4258 (RLC), slip op. at 31 (S.D.N.Y. July 20, 1988). Plaintiffs present no legal or factual ground for reconsidering that holding, and indeed seem to misunderstand its basis. The motion to reargue is denied.
4. Adjournment of 20-Day Period
Plaintiffs were given 20 days to prepare and submit further documentation of costs and expenses. They now seek an additional 60 days from the date this decision issues to file the requisite papers. They state that "more time is needed ... in view of the effect of the vacation schedule on the small staff of plaintiff's law firm and its case load. Further, issues raised by this motion may result in an amendment or adjustment in what is allowed." Plaintiffs' Br. at 13.
The request for an additional 60 days is denied. The 20-day period was entirely reasonable given that plaintiffs should have submitted appropriate documentation in conjunction with their initial fee application a point overlooked by plaintiffs' counsel. Moreover, almost two months have passed since the July 20 opinion issued. Although plaintiffs have made no discernible effort to comply with the 20-day period, the court will assume that, during this period, plaintiffs have made diligent efforts to prepare the appropriate documentation. Plaintiffs have already obtained a measure of the additional time they sought, and although the fault does not rest entirely on the litigants (the court must take some responsibility), this matter has taken far too long in reaching final determination. No additional time will be allowed for further submissions.[5]
5. Fee Parity
Plaintiffs request reargument of the fee award on the ground that the court denied them "fee parity." By this novel term, they apparently mean that defendants' counsel were impermissibly paid and reimbursed at higher rates than were plaintiffs' counsel.[6] Defendants' Br. at 19. Such a disparity, plaintiffs maintain, violates 29 U.S.C. § 1132(g), and departs from the mandatory "prevailing-market-rates" standard established in Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), and Miele v. New York State Teamsters Conf. Pension & Retirement Fund, 831 F.2d 407 (2d Cir.1987). See Plaintiffs' Br. at 8-10.
Nothing in plaintiffs' motion merits reconsideration of the fee award. No "controlling decisions or factual matters" previously overlooked have been brought to the court's attention. Ashley Meadows Farm, 624 F.Supp. at 857. The court took Section 1132(g) into account, and the fee award was consonant with the "prevailing market rate" standard. That concept means that an attorney is to receive a fee award based on the rates a similarly situated attorney would receive under prevailing market rates. It does not require comparable rates for the attorney receiving an award and opposing counsel. The standard for the court is the prevailing market rates. Defendants' insurance coverage and the concept of "fee parity," although not explicitly addressed in the July 20 decision, have no bearing on the fees to which plaintiffs are entitled. See Johnson v. University College of University of Alabama, 706 F.2d 1205, 1208-1209 (11th Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983); Mirabel v. General Motors Acceptance Corp., 576 F.2d 729, *647 731 (7th Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 699 (1978).
As the Court of Appeals for the Eleventh Circuit has stated:
The amount of hours that is needed by one side to prepare adequately may differ substantially from that for opposing counsel, since the nature of the work may vary dramatically. The case may have far greater precedential value to one side than the other.... With respect to the hourly rate, one side may employ far more experienced counsel.... [W]e cannot conclude that the district court abused its discretion here [by quashing a subpoena and refusing to admit evidence of fees charged by defense counsel].
Johnson, 706 F.2d at 1208 (citations omitted). Moreover, fee parity, as plaintiffs define it, would enable a plaintiff to press "questionable claims ... [that] could force a defendant to incur substantial fees which [plaintiff] later [could] use[] as a basis for his own fee claim." Mirabel, 576 F.2d at 731. Even were this concern groundless here, plaintiffs had "many avenues to obtain evidence to support their fee petition." Id. Although their submissions ultimately were nearly useless to the court, that fact did not prevent the court from assessing what it believes to be a reasonable fee.
The court's implicit rejection of the concept of "fee parity" is therefore not subject to reargument on the instant showing. Moreover, plaintiffs' requests for discovery of defendants' billings and for findings of fact based on defendants' insurance coverage are denied.
II. Supplemental Fee Application
Plaintiffs also seek a supplemental fee award of over $90,000 for approximately 500 hours of service rendered from April, 1987, through August, 1988. The preceding fee request covered work performed only up through April 24, 1987. The instant fee request includes hours expended on the following: (1) the motion to amend the judgment in order to specify the amount of plaintiff's monthly pension; (2) the former fee application and the instant one; and (3) the motion to strike the Kaplan affidavit, the motion for sanctions, and the motion for recusal.
In addition, plaintiffs request fees for time expended by four individualsIngrid Marino, Robert C. Reichelscheimer, Scott M. Yaffe, and Marlaine M. Craggwhose hours were excluded from the original fee award because plaintiffs did not make it clear to the court whether these individuals were attorneys. See Chambless v. Masters, Mates & Pilots Pension Plan, No. 80 Civ. 4258 (RLC), slip op. at 43 n. 11 (S.D.N. Y. July 20, 1988). This request brings new factual matters to the court's attention and therefore is not properly treated as a motion for reargument. The requested fees will be regarded as part of the supplemental fee application.
A. Fees for the Four Individuals
Having failed to identify clearly the four individuals named above, plaintiffs now come forward with affidavits that show the following: Marino was admitted to the Bar in 1982 and billed 129.70 hours; Reichelscheimer was admitted to the Bar in 1983 and billed 3 hours; Yaffe was admitted to the Bar in 1984 and billed 1.5 hours; and Cragg was admitted to the Bar in 1986 and billed 183.75 hours.[7] Rowe Aff't, ¶ 4. Based on a requested hourly rate of $55 for each individual,[8] with which the court will not quarrel, the requested fees total $17,487.25.
Although plaintiffs' piecemeal approach to obtaining fees is far from laudable, the court is mindful of its obligation to determine and award a reasonable fee in this case. Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 872 (2d Cir.1987). Therefore, additional fees will not be denied outright, although, as discussed *648 below, the court finds it appropriate to reduce the amount requested to reflect the fact that plaintiffs' fragmented approach has undoubtedly inflated the number of hours expended on this case.
As defendants point out, a substantial number of the hours expended by Marino, Reichelscheimer, Yaffe, and Cragg preceded each individual's admission to the Bar and thus are not compensable at hourly rates. Marino's overall time figures will accordingly be reduced by 38 hours, Reichelscheimer's by 14.5 hours, Cragg's by 165.25 hours, and Yaffe's by 1 hour. See Baumgarten Aff't, ¶¶ 6-7 and Exh. B. The following hours will be included in the supplemental fee award: 96.7 hours for Marino; .35 hours for Yaffe; and 23.8 hours for Cragg. For reasons set forth in the fee decision, these time figures will be reduced by 30 percent. See Chambless v. Masters, Mates & Pilots Pension Plan, No. 80 Civ. 4258 (RLC), slip op. at 32-33 (S.D.N.Y. July 20, 1988). Adopting the proposed rate of $55 per hour, the court finds plaintiffs entitled to an additional $5,051.20 in fees.[9]
B. Additional Fees
Plaintiffs also seek $90,195 in fees on the basis of newly submitted affidavits and time sheets. Defendants object to the supplemental fee request on several grounds: (1) Chambless has presented no excuse for his failure to incorporate all compensable time into the original fee application; (2) the motions for sanctions, recusal, and to strike the Kaplan affidavit were frivolous; and (3) the work performed after April, 1987, for which Chambless now seeks to recover, was necessary only because Chambless's prior fee application and motion to amend the judgment were unsuccessful. Defendants' Br. at 12-14. Defendants ask that the fee application be denied outright; alternatively, they seek a chance to respond to the application in detail. Id. at 13.
The court agrees with defendants that the motions for sanctions, recusal, and to strike the Kaplan affidavit do not merit a recovery of fees. An award of fees pursuant to 29 U.S.C. § 1132(g)(1) is discretionary. "Section 1132(g) ... does not award attorney's fees to the prevailing party outright; but rather, allows for attorney's fees for either party in accordance with the district court's discretion." McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566, 1572 (11th Cir.1985); see Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 828-830 (7th Cir.1984). The fee applicant is obligated to "make a goodfaith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434, 103 S.Ct. at 1939. Should the applicant fail to do so, the court is obligated to exclude unrecoverable hours on its own initiative.
Plaintiffs' motions for recusal, sanctions, and to strike were baseless. The court cannot in good conscience assess the resulting fees to defendants. Cf. Bittner, 728 F.2d at 828 (district court has discretion to deny fees for suit "so completely without hope of succeeding that the court can infer that the plaintiff brought it to harass the defendant rather than to obtain a favorable judgment"). As the court stated in Boe v. Colello, 447 F.Supp. 607, 610 (S.D.N.Y. 1978) (Weinfeld, J.):
Any expenditure of time beyond that which is reasonably required suggests either inexperience and devotion of more time than warranted to fairly and properly *649 present claims or, alternatively, that the attorneys, however experienced, engaged in dilettantism; a losing side is not required to pay for such indulgences.
Plaintiffs' time figures will therefore be reduced by the 39 hours expended on these motions.[10]
Although the court is not bound to award fees for time expended on a fee application, see Woods v. State of New York, 494 F.Supp. 201, 205 (S.D.N.Y.1980) (Weinfeld, J.); Boe, 447 F.Supp. at 610 & n. 14, in this Circuit "time reasonably spent by plaintiff's attorneys in establishing their fee [is] compensable." Gagne v. Maher, 594 F.2d 336, 344 (2d Cir.1979), aff'd, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). In general, the court agrees with the rationale stated in Gagne and elsewhere that a refusal to award fees incurred in connection with the fee application would tend to dilute the fee award and thus to undermine the very purpose of awarding fees. Therefore, the recovery of fees incurred on the fee applications will not be denied outright.
Defendants suggest that plaintiffs' piecemeal approach to the fee award renders this general principle inapplicable. Although they fail to specify in what manner plaintiffs' approach has been prejudicial, the court is persuaded that plaintiffs would have incurred fewer fees and related costs had they submitted a single, comprehensive fee application. Not only have plaintiffs incurred additional fees and costs as a result of their protracted approach to obtaining fees, but plaintiffs have imposed correspondingly greater fees and costs upon defendants. That fact may constitute grounds for reducing plaintiffs' fee request, but it does not permit the court to deny the fee request altogether. As the Court of Appeals has stated, "[t]o the extent that Chambless' actions were `vexatious[] and wasteful[],' he is obviously penalized by not recovering any attorney's fees for those efforts. This does not affect his right to a reasonable attorney's fee for his successful claim." Chambless, 815 F.2d at 872.
Nor is plaintiffs' supplemental application so untimely as to be denied on the ground that it "unfairly surprise[d] or prejudice[d] the affected party." White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (holding that a fee application under 42 U.S.C. § 1988 is not governed by the 10-day limit imposed on motions to amend judgment under Rule 59(e), F.R.Civ. P.). Defendants do not claim to have been caught off guard by the instant request, and any elements of prejudice, to the extent that they have involved exposing defendants to greater liability for fees and costs, are properly redressed by reducing the requested award, not by denying it altogether.
In sum, the court finds it unreasonable and unfair to subject defendants to liability that might have been avoided had plaintiffs' fee application been inclusive from the start. Plaintiffs do not explain their failure to incorporate all compensable time in a single fee application. The court will reduce plaintiffs' time figures by 40 percent to ensure that needlessly expended hours, namely, those imposed upon defendants as a result of plaintiffs' piecemeal approach to obtaining fees, are excluded from the fee award. The resulting number of recoverable hours is 277.8.
To arrive at a reasonable lodestar figure, the court will employ the Phase II hourly rates stated in the July 20 decision: Arthur M. Wisehart will receive $200 per hour for 66.6 recoverable hours billed in 1987 and 11.55 billed in 1988[11]; John W. Whittlesey will receive $150 per hour for 25.8 recoverable hours billed in 1987 and .3 billed in *650 1988; Steven L. Lim will receive $100 per hour for 58.05 recoverable hours billed in 1987; and Paula C. Rowe will receive $65 per hour for 20.7 recoverable hours billed in 1987 and 6.3 billed in 1988.[12] Plaintiffs' proposed hourly rates for Marlaine M. Cragg, Janet S. Sussman, and Russell G. Pelton are reasonable and will be adopted. Thus, Cragg will receive $65 per hour for 3 recoverable hours billed in 1987; Sussman will receive $45 per hour for .6 recoverable hours billed in 1987; and Pelton will receive $165 per hour for 81 recoverable hours billed in 1987 and 3.9 billed in 1988. The resulting lodestar figure is $41,335.50.[13]
C. Erroneously Included Hours
Defendants point out that Paula C. Rowe, whose 350.75 hours were deemed recoverable at a rate of $55 per hour in the original fee award, was not admitted to the Bar until March 7, 1984. It appears that 274 hours worked in 1983, and 1 hour worked in 1984, preceded her Bar admission and were improperly included in the lodestar figure. Baumgarten Aff't, ¶ 8. Therefore, the court will reduce the fee award by $10,587.50.[14]
III. Conclusion
Upon reargument, and for the reasons set forth above, plaintiffs are entitled to an adjusted fee award totalling $451,990.50.[15] Defendants' request for additional time to respond to the supplemental fee application is denied.[16] All remaining arguments advanced by the parties have been fully considered and are found to lack merit.
IT IS SO ORDERED.
NOTES
[1] Defendants' request that the July 20 decision be modified to exclude fees for Paula C. Rowe's services performed before her admission to the Bar is addressed separately below. See Baumgarten Aff't, ¶ 1.
[2] Defendants write: "Chambless was thus not entitled to pension benefits between 1977 and 1986 (when he finally did retire). For the same reason, he is not entitled to a recomputed monthly pension benefit that would give him the actuarial equivalent of retroactive benefits." Defendants' Br. at 2. Elsewhere, they state that "the `actuarially adjusted pension' that Chambless seeks is the functional equivalent of an award of retroactive benefits." Id. at 5.
[3] The Pension Plan is insured against liability for attorney's fees and litigation expenses incurred in this and another action. See Sokolowski v. Aetna Life & Casualty Co., 670 F.Supp. 1199, 1200 (S.D.N.Y.1987) (Sweet, J.).
[4] That section states that "[i]n any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1).
[5] Pursuant to Local Civil Rule 3(j), the Baumgarten affidavit, to the extent that it concerned reargument, was ignored.
[6] Plaintiffs also argue that "fee parity" requires the court to include paraprofessional services in the lodestar calculation. Plaintiff's Br. at 9.
[7] Defendants state the following dates of admission: Marino, 5/12/82; Reichelscheimer, 6/1/83; Cragg, 10/29/86; and Yaffe, 5/7/84. Baumgarten Aff't, ¶ 5; Exh. C.
[8] With one exception, this is the same rate requested in the original fee application. The rate originally requested for Cragg was $65 per hour. See Fee Application, ¶ 27 at 15.
[9] This figure was calculated as follows:
Recoverable Less
Attorney Hours 30% Rate Total
Marino 96.7 67.69 $55 $3,722.95
Reichelscheimer 0.0 0.0 $55 0.0
Yaffe .5 .35 $55 19.25
Cragg 34.0 23.8 $55 1,309.0
__________
TOTAL: $5,051.2
[10] The supplemental fee application reveals that plaintiffs' counsel billed 39 hours in May and June, 1988, in connection with these motions. See Supplemental Fee Application, ¶ 14 at 5 & Exh. A.
[11] Wisehart's 1988 time figure was reduced by 39 hours to reflect time expended on the motions for which fees were denied. See Supplemental Fee Application, Exh. A at 9.
[12] Plaintiffs are not entitled to reargue the rate applied to Rowe in the July 20 decision.
[13] The lodestar calculations follow:
Recoverable Less
Attorney Hours 40% Rate Total
Wisehart
('87) 111.0 66.6 $200 $13,320.0
('88) 19.25 11.55 $200 $ 2,310.0
Whittlesey
('87) 43.0 25.8 $150 $ 3,870.0
('88) .5 .3 $150 $ 45.0
Pelton
('87) 135.0 8.10 $165 $13,365.0
('88) 6.5 3.9 $165 $ 643.5
Rowe
('87) 34.5 20.7 $ 65 $ 1,345.5
('88) 10.5 6.3 $ 65 $ 409.5
Sussman
('87) 1.0 .6 $ 45 $ 27.0
Cragg
('87) 5.0 3.0 $ 65 $ 195.0
Lim
('87) 96.75 58.05 $100 $ 5,805.0
____________
TOTAL: $41,335.5
[14] Rowe's 275 erroneously included hours were reduced by 30 percent, and the resulting total, 192.5 hours, was multiplied by an hourly rate of $55, to yield a total overpayment of $10,587.50.
[15] This figure reflects all of the adjustments to the fee award specified herein.
[16] Defendants provide no explanation or authority for this request, and the court is unwilling to prolong this litigation further by granting it.
|
FILE COPY
I, CATHY S. LUSK, Clerk of the Court of Appeals for the Twelfth Court of Appeals
District of the State of Texas, do hereby certify that Troy W. Simmons, D.D.S., P.C. and Troy W.
Simmons, D.D.S., Plaintiff in the trial court secured an extension of eleven (11) days in which to
file Appellant’s Brief in the following numbered and entitled cause:
Troy W. Simmons, D.D.S., P.C. and Troy W. Simmons, D.D.S.
No. 12-14-00256-CV vs.
Texas Health and Human Services Commission
This certificate is made pursuant to Tex. Rev. Civ. State. Ann. art. 5069, 1.05 sec. 3(c)
(Vernon Supp. 1985) to assist the Clerk of the Trial Court in calculating the amount of post-
judgment interest accrued.
WITNESS MY HAND and seal of said Court at Tyler, Texas, this 24 day of August 2015,
A.D.
Respectfully yours,
CATHY S. LUSK, CLERK
By: ______________________________
Katrina McClenny, Chief Deputy Clerk
|
793 F.2d 85
55 USLW 2027
UNITED STATES of Americav.William T. SMITH, Jr.Appeal of UNITED STATES of America.
No. 85-5557.
United States Court of Appeals,Third Circuit.
Argued March 18, 1986.Decided June 13, 1986.
James J. West (Argued), U.S. Atty., Harrisburg, Pa., for appellant.
John Rogers Carroll (Argued), Carroll & Carroll, Philadelphia, Pa., for appellee.
Before HUNTER and MANSMANN, Circuit Judges and POLLAK* District Judge.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT, in which
Judges HUNTER and POLLAK agree
as to parts I., II. and III.,
Judge HUNTER also joins as to part VI.,
Judge POLLAK also joins parts IV.(B) and (C)
MANSMANN, Circuit Judge.
1
We review the district court's application of the substantial question requirement contained in the section of the Bail Reform Act of 1984 governing the release of a convicted defendant pending appeal. 18 U.S.C. Sec. 3143(b). The district court interpreted our decision in United States v. Miller, 753 F.2d 19 (3d Cir.1985), as requiring that the defendant be released where the issue presented on appeal is not governed by controlling precedent, no matter how improbable a reversal of the conviction. The district court found that under this standard the defendant had raised a substantial question and granted the defendant's motion for bail pending appeal. We reverse.
I.
2
The defendant was indicted for crimes relating to his participation in a scheme to bribe public officials in Pennsylvania in order to secure the award of Federal Insurance Contribution Act ("FICA") recovery contracts from state and local entities. After jury deliberations commenced, one of the jurors was injured in an automobile accident while returning to the courthouse. The district court, finding that the juror's injuries precluded her from continuing deliberations, invoked Federal Rule of Criminal Procedure 23(b)1 and permitted the remaining eleven jurors to continue deliberations. The jury found the defendant guilty of conspiracy, 18 U.S.C. Sec. 371 (1982), four counts of mail fraud, 18 U.S.C. Sec. 1341 (1982), and four counts of violating the Interstate Transportation in Aid of Racketeering Statute, 18 U.S.C. Sec. 1952(a)(3) (1982) ("I.T.A.R."). The defendant was sentenced to a total of twelve years imprisonment and fined $63,000. The defendant appealed, challenging, inter alia, the constitutionality of Rule 23(b).2
3
The district court granted the defendant's motion for bail pending appeal pursuant to 18 U.S.C. Sec. 3143(b). The government appeals.
II.
4
"[B]ecause of the crucial nature of the defendant's liberty interest and the 'clear public interest' that is at stake," we are required to "independently determine" whether the defendant is entitled to bail pending appeal. United States v. Strong, 775 F.2d 504, 505 (3d Cir.1985) (quoting United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985) and S.Rep. No. 98-225, 98th Cong., 2d Sess. at 30 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3213). We must, however, accord some deference to the district court's reasoning.
5
[A]ppellate courts give the reasons articulated by trial judges respectful consideration, but if, after careful assessment of the trial judge's reasoning, together with such papers, affidavits, and portions of the record as the parties present, the court of appeals independently reaches a conclusion different from that of the trial judge the court of appeals has the power to amend or reverse a detention or release decision.
6
Delker, 757 F.2d at 1400 (citations omitted).
III.
7
The 1984 Bail Act provides in relevant part that a defendant shall be released on bail pending appeal only if the court finds:
8
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released pursuant to section 3142(b) or (c); and
9
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
10
18 U.S.C. Sec. 3143(b). The government does not challenge the district court's finding that the defendant had satisfied his burden of proof with respect to the first portion of these requirements. The government does contest the district court's application of the second half of these criteria.
11
In Miller we found that Congress intended that the section 3143(b)(2) requirements would palce a burden on the defendant to demonstrate "that the appeal raises a substantial question of law or fact" and "that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed." Miller, 753 F.2d at 24. We said that the substantial question prerequisite requires the defendant to prove "that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Id. at 23. We noted:
12
This [requirement] represents a marked change in the inquiry into the merits in the context of a bail determination, since the 1966 act only required the court to determine whether the issue was "frivolous," see 18 U.S.C. Sec. 3148 (repealed by 1984 Act).
13
Id. We rejected any interpretation of the statutory phrase "likely to result in reversal or an order for a new trial" which would require the federal courts to act as " 'bookmakers' who trade on the probability of ultimate outcome." Id. We said that the statute "cannot reasonably be construed to require the district court to predict the probability of reversal." Id.
14
The trial court here found that the defendant's challenge to the constitutionality of the provision of Federal Rule of Criminal Procedure 23(b) for continuing deliberations with an 11-member jury where one juror can no longer participate constitutes a substantial question under the Miller guidelines.3 The court explained:
15
We have no doubt that the 11-person jury provided for in Rule 23 of the Rules of Criminal Procedure is constitutional and will be so determined by the U.S. Supreme Court if and when this question reaches that court. However, there is no controlling precedent with respect to the 11-person jury. Thus, the question falls within the definition of a "substantial question" under U.S. v. Miller.
16
The court stressed, however, its belief that the resolution of the Rule 23(b) question was not "fairly doubtful":
17
I don't think there is any doubt about this at all. I think the chances are one hundred to one that the Supreme Court, when and if this matter ever gets to it, will hold that an eleven man jury in the circumstances we had in this case, is perfectly valid. I don't think there is any doubt about it, or the doubt is minimal.
18
The trial court emphasized its reluctance to find a substantial question but concluded that it was required to do so by our opinion in Miller. Reasoning that if the Rule 23(b) question were determined favorably to the defendant, a new trial would be required on all counts for which imprisonment was imposed, the district court ordered the defendant released pending appeal.
IV.(A)
19
We find that Miller does not compel the result reached by the district court. We clearly acknowledged in Miller that Congress intended the 1984 Bail Act to replace the "frivolous" test with a more stringent prerequisite to bail pending appeal. Contrary to the assertion of the United States Court of Appeals for the Eighth Circuit in United States v. Powell, 761 F.2d 1227, 1232 (8th Cir.1985), we believe the Miller definition is consistent with Congress' intent. Our definition of a substantial question requires that the issue on appeal be significant in addition to being novel, not governed by controlling precedent or fairly doubtful. The district court focused solely on the absence of controlling precedent and, in so doing, failed to determine whether the Rule 23(b) issue constituted a significant question.IV.(B)
20
We are aware that a number of courts of appeals view our Miller definition as incomplete. In United States v. Giancola, 754 F.2d 898 (11th Cir.1985), the United States Court of Appeals for the Eleventh Circuit adopted the Miller articulation of the section 3143(b) requirements. The Giancola court observed, however, that the suggestion that a substantial question can be one that has not been decided by controlling precedent fails to exclude some cases which are not substantial. The Giancola court explained:
21
We note that an issue may be without controlling precedent largely because that issue is so patently without merit that it has not been found necessary for it to have been resolved. Thus, an issue could well be insubstantial even though one could not point to controlling precedent. Similarly, there might be no precedent in this circuit, but there may also be no real reason to believe that this circuit would depart from unanimous resolution of the issue by other circuits.
22
Id. at 901. The Giancola court concluded that a substantial question is "a 'close' question or one that very well could be decided the other way." Id. The Giancola modification of Miller has been adopted by a number of the courts of appeals. See, e.g., United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.1985); United States v. Bayko, 774 F.2d 516, 523 (1st Cir.1985); United States v. Bilanzich, 771 F.2d 292, 298-99 (7th Cir.1985); United States v. Affleck, 765 F.2d 944, 952 (10th Cir.1985); Powell, 761 F.2d at 1231-32; United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir.1985); United States v. Randell, 761 F.2d 122, 125 (2d Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985).
IV.(C)
23
We believe the Giancola court's objections can be satisfied by reference to the requirement that a question which is not governed by controlling precedent nonetheless must be significant. Clearly, an issue that is "patently without merit" cannot qualify as significant. An issue which has been unanimously decided by the other circuits may or may not be significant. Where there is any doubt as to significance, we believe it is preferable to resort to the historical approach outlined in United States v. Handy, 761 F.2d 1279, 1281-82 (9th Cir.1985), rather than to the "close" question concept advocated by the Giancola court. To accept the Giancola modification would be to resort to the judicial bookmaking condemned in Miller.
24
The Handy court noted that several observations made in Giancola were accurate, i.e., that "a 'substantial question' is one of more substance than would be necessary to a finding that it was not frivolous," that "there are no blanket categories for what questions do or do not constitute 'substantial' ones," and that "[w]hether a question is 'substantial' must be determined on a case-by-case basis." Giancola, 754 F.2d at 901 (quoted in Handy, 761 F.2d at 1282 n. 2). We agree. The Handy court also suggested that the Miller definition of substantial question "might not be sufficient to separate substantial from non-substantial questions." Handy, 761 F.2d at 1282 n. 2 (citing Giancola, 754 F.2d at 901). The court rejected, however, the "close question" analysis adopted in Giancola. Instead, the Handy court emphasized its support of the historically-based "fairly debatable" interpretation of the term "substantial". We find this approach consistent with that traditionally taken by the courts. For example, the Supreme Court of the United States, in a different context, recently affirmed that:
25
"In requiring a 'question of some substance', or a 'substantial showing of the denial of [a] federal right,' obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are 'adequate to deserve encouragement to proceed further.' " Gordon v. Willis, 516 F.Supp. 911, 913 (ND Ga.1980) (quoting United States ex rel. Jones v. Richmond, 245 F.2d 234 (CA2); cert. denied, 355 U.S. 846 [78 S.Ct. 71, 2 L.Ed.2d 56] (1957)).
26
Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983) (emphasis in original). We reject the Giancola modification to the Miller substantial question definition and adopt the historical approach of the Handy court.
V.
27
Because we find that the district court applied the incorrect standard, we must determine whether the Rule 23(b) issue constitutes a substantial question. Given the absence of controlling precedent, Miller requires us to decide whether a significant question is posed. The pertinent issue involves the defendant's challenge to the constitutionality of continuing jury deliberations with eleven jurors when one juror can no longer participate. Precedent clearly establishes that twelve jurors are not required for a conviction. See Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). It is also clear that the district court acted in accordance with Federal Rule of Criminal Procedure 23(b) and that the defendant was convicted by the unanimous verdict of the eleven remaining jurors.
28
We find that the defendant's challenge to Rule 23(b) is not a significant question. The defendant has not shown that the issue is "debatable among jurists," nor do we believe that the question is "adequate to deserve encouragement to proceed further." See Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (citations omitted). Because we find no basis to suggest that the Rule 23(b) issue fulfills the requirement of significance, we conclude that the defendant should not have been released pending appeal.
VI.
29
We will reverse the order of the district court permitting the defendant's release on bail pending appeal.
JAMES HUNTER III, Circuit Judge, concurring:
30
1. Both the defendant, William T. Smith, and the government acknowledge that the two-part test in United States v. Miller, 753 F.2d 19 (3d Cir.1985), is to be used in making a decision on whether to grant bail pending appeal under the Bail Reform Act of 1984, 18 U.S.C. Sec. 3143(b)(2). They differ, however, on the definition of a "substantial question." On the subject of what constitutes a substantial question the Miller court stated: "[u]nder the new act, a court must determine that the question raised on appeal is a 'substantial' one, i.e., it must find that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." 753 F.2d at 23. Although this statement was meant to suggest factors that could be considered in determining whether an issue is "substantial," the presence of any one of these factors is not absolutely dispositive of substantiality. Other circuits have examined the question at greater length and I find their comments very helpful.
31
2. The next circuit to consider Sec. 3143(b)(2) after Miller, the Eleventh Circuit, pointed out that an issue might not have been decided by controlling precedent "largely because that issue is so patently without merit that it has not been found necessary for it to have been resolved.... Similarly there might be no precedent in this circuit, but there may also be no real reason to believe that this circuit would depart from unanimous resolution of the issue by other circuits." United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985). The Giancola court defined a substantial question as "one of more substance than would be necessary to a finding that it was not frivolous. It is a 'close' question or one that very well could be decided the other way. Further, there are no blanket categories for what questions do or do not constitute 'substantial' ones." Id. at 901. All but one of the circuits that have considered what constitutes a substantial question subsequent to the Miller and Giancola decisions have adopted the Giancola definition of a substantial question as a "close" one.1
32
3. I agree with the Giancola court that a court should assess substantiality on a case-by-case basis and that an issue on appeal must present a close question if it is to be considered a substantial one. Just because a question is "one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful," Miller, 753 F.2d at 23, does not automatically, without reference to other factors demonstrating merit or the lack of it, make it a substantial question. In promulgating 18 U.S.C. Sec. 3143 to replace former Sec. 3148, Congress explicitly stated that it intended to eliminate the presumption in favor of post-conviction bail by requiring that a defendant raise a substantial question rather than one that was merely not frivolous. It would be pointless and contrary to the legislative intent in passing the Bail Reform Act of 1984 to agree with Smith that any question of first impression in this circuit, no matter how frivolous, is substantial.
33
4. Smith maintains that we will erode Miller if we join the courts that have followed Giancola and permit courts to consider the merit of an issue in deciding whether it is substantial. He argues that allowing a judge to determine whether an issue presents a close question involves the same problems that we sought to avoid in Miller. In Miller, we found that judges could not be expected to determine whether their own findings were so erroneous that they would result in reversal on appeal. I believe trial court judges can consider the merit of an issue to decide whether it is a close question. Such a determination does not involve the guesswork that would be involved if a judge had to assess the likelihood of being reversed.
34
5. I cannot agree with Judges Mansmann and Pollak that the Handy court was correct in defining a substantial question as one that is "fairly debatable." 761 F.2d at 1282 n. 2. Like the Powell court, "I believe Giancola is more responsive to the announced purpose of Congress, which was, bluntly, that fewer convicted persons remain at large while pursuing their appeals." 761 F.2d at 1232. The Handy test simply "does not work enough of a change from the prior standard that a question not be 'frivolous.' " Bayko, 774 F.2d at 523. Congress intended that the 1984 Bail Reform Act make the standard for granting bail pending appeal more stringent. See Affleck, 765 F.2d at 952. It sought to remove the presumption in favor of release and place the burden of showing the merit of the appeal on the defendant. This was done to give "recognition to the basic principle that a conviction is presumed to be correct." S.Rep. No. 98-225, 98th Cong., 1st Sess. 27 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3210.
35
6. I find Judge Mansmann's reliance on definitions of a "substantial question" from contexts other than bail are inappropriate. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), used the "fairly debatable" language to define a substantial question in the context of a habeas corpus proceeding. Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4. In such a proceeding "doubts should be resolved in favor of the petitioner." Gordon v. Willis, 516 F.Supp. 911, 912 (N.D.Ga.1980). Congress clearly intended that no such presumption be accorded to defendants seeking bail pending appeal. See S.Rep. No. 98-225, supra, at 26, reprinted in 1984, U.S.Code Cong. & Admin., 3182, 3209. In formulating its definition of a "substantial question," the Handy court relied on cases predating the Bail Reform Act of 1984, when bail was the rule rather than the exception. See Powell, 761 F.2d at 1232. Judge Mansmann correctly notes that the Handy approach is "consistent with that traditionally taken by the courts" and is "the historical approach." This fact convinces me, however, that the Handy approach is inappropriate, given Congress's clearly expressed desire that courts use a new approach applying a stricter standard for bail.
36
7. I do not believe that the constitutionality of Rule 23(b) is a close question and I, therefore, agree with Judge Mansmann that no substantial question has been raised.
37
LOUIS H. POLLAK, District Judge, dissenting.
I.
38
This court, in United States v. Miller, 753 F.2d 19 (3d Cir.1985) led the way in parsing the mandate of the Bail Reform Act of 1984 that bail pending appeal be conditional on a finding, inter alia, "that the appeal ... raises a substantial question of law." 18 U.S.C. Sec. 3143(b). Following the decision in Miller, a number of other courts of appeal have sought to shed additional light on the delphic statutory language. I concur in Judge Mansmann's demonstration that, as an explication of "substantial question of law," the "fairly debatable" standard adopted by the Ninth Circuit in United States v. Handy, 761 F.2d 1279, 1282 (9th Cir.1985), is a sounder guide than the " 'close' question" standard advanced by the Eleventh Circuit in United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985). Handy's "fairly debatable" seems to me to comport better with the language of the statute and with the salutary approach to the statutory language taken by this court in Miller.
II.
39
Although I concur in Judge Mansmann's conclusion that a question of law is "substantial" for purposes of the Bail Reform Act if it is "fairly debatable," I do not agree with Judge Mansmann's companion conclusion: namely, that defendant Smith's constitutional challenge to the second sentence of Federal Rule of Criminal Procedure 23(b)--the 1983 amendment which provides that "if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors"--did not raise an issue properly characterizable as "fairly debatable." The substance of Smith's claim was that a verdict rendered by a jury of fewer than twelve persons is constitutionally defective (unless, of course, a defendant stipulates, pursuant to the first sentence of Rule 23(b), to such a diminished jury).
40
As of the date (July 23, 1985) the district court determined that Smith was entitled to bail pending appeal, there appears to have been only one reported opinion discussing the then recently adopted amendment to Rule 23(b). That was the opinion of the district court in United States v. Gambino, 598 F.Supp. 646 (D.N.J.1984), affirmed, 788 F.2d 938 (3d 1986). The Gambino district court opinion describes the "just cause" which in that instance necessitated discharging a juror after deliberations had begun, and then explains why the court decided to proceed with eleven jurors rather than substitute one of the two sequestered alternates. All the opinion says about the validity of amended Rule 23(b) is the following:
41
Finally, counsel for the defendants, in urging that this court proceed to substitute an alternate, did not attack Rule 23(b). Thus, the record is barren of any argument that somehow Rule 23(b) was flawed or faulted. Certainly, it cannot now be contended that there is any imperfection, constitutional or otherwise, in the procedure permitted under Rule 23(b).
42
598 F.Supp. at 661.1 Thus it may fairly be stated that, at the time the court below concluded that defendant Smith should be at large pending appeal, that court did not have at its disposal any case law commenting in other than conclusory terms on the validity of the second sentence of Rule 23(b).2
43
The case for the validity of the second sentence of Rule 23(b) rests on the Supreme Court's opinion in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Williams v. Florida was decided in 1970, thirteen years before the Court, in its rule-making capacity, amended Rule 23(b) to add the language challenged by Smith. In Williams v. Florida, the question presented was whether a state's constitutional obligation to provide a jury in a criminal case--an obligation which the Court, in 1968, had found implicit in the Fourteenth Amendment3--was satisfied by a jury of six persons. A divided Court answered that question in the affirmative. En route to its decision, the Court determined that the Sixth Amendment, while in haec verba mandating a "jury" in a federal criminal trial, did not require that the "jury" be composed of twelve persons.
44
Unquestionably, the 1983 amendment to Rule 23(b) gains strong support from the Court's pronouncement in Williams v. Florida. That favoring constitutional wind is enhanced by the presumption of validity which properly attaches to a rule of procedure promulgated by the Supreme Court pursuant to its statutorily delegated rule-making authority.4 And if the second sentence of Rule 23(b) has such impressive credentials, how can its validity be characterized as "fairly debatable"?
45
The doubt with respect to amended Rule 23(b)'s validity inheres in the Court's own language in Williams v. Florida. The Court was plainly aware that its latitudinarian description of what a federal criminal jury might look like reflected a sharp departure (and one which, it may be noted, commanded the support of only five of the Justices5) from what had theretofore appeared to be a settled constitutional understanding that the word "jury" as used in the Sixth Amendment connoted "a jury of twelve persons."6 Against that background, the Court was careful to make clear that its new reading of the Sixth Amendment would not of its own force confer on federal trial judges any warrant to empanel juries of fewer than twelve: "Our holding does no more than leave the considerations to Congress ... unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury." 399 U.S. at 103, 90 S.Ct. at 1907.
46
In the light of this language, it would seem well within the range of reasonable argument that the five Justices comprising the Williams v. Florida majority contemplated that implementation of the path-breaking constitutional latitude there announced would entail affirmative legislation by Congress, not merely Congressional non-objection to a "rule of procedure" promulgated by the Court in its non-adjudicative capacity.7
III.
47
The challenge to Rule 23(b) summarized above is not one which, ultimately, I am persuaded by. Indeed, I have already joined in concluding that the district court was on sound constitutional ground in exercising the discretionary authority conferred by the second sentence of Rule 23(b).8 But I have no difficulty in characterizing the issue of the amended Rule's validity as "fairly debatable" at the time the district court admitted Smith to bail pending appeal. Therefore, I respectfully dissent from the judgment of this court reversing the order of the district court.
*
The Honorable Louis H. Pollak, United States District Court for the Eastern District of Pennsylvania, sitting by designation
1
Federal Rule of Criminal Procedure 23(b) provides:
Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.
2
The defendant appealed from his conviction. United States v. Smith, No. 85-5532, and from the denial of his post-trial motions, United States v. Smith, No. 85-5714. In addition, Mr. Smith's co-defendant, Alan Stoneman, appealed from the denial of his post-trial motions, United States v. Stoneman, No. 85-5702. All three of these appeals were consolidated with the government's appeal of the order granting defendant Smith bail which we consider here. We address the defendants' three appeals in a separate opinion, 789 F.2d 196
3
The court found that "[t]he only substantial question of law to be raised by the defendant on appeal which has been called to our attention by defense counsel up to the present time is the question of the constitutionality of the 11-person jury used in this case." The defendant asserts on appeal that three additional issues are also "substantial questions: 1) whether the defendant was prejudiced by an impermissible variance between the crime for which he was indicted and the proof at trial coupled with the court's instructions to the jury; 2) whether the supplemental jury instructions erroneously permitted the jury to consider the multiple conspiracies separately; and 3) whether the district court erred in refusing to permit the defendant to subpoena alcoholism records of two of the government's witnesses. We find that none of these issues raises a substantial question within the meaning of 18 U.S.C. Sec. 3143
1
See United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.1985); United States v. Bayko, 774 F.2d 516, 523 (1st Cir.1985); United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir.1985); United States v. Affleck, 765 F.2d 944, 952 (10th Cir.1985); United States v. Powell, 761 F.2d 1227, 1232 (8th Cir.1985); United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir.1985); United States v. Randell, 761 F.2d 122, 125 (2d Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985); but see, United States v. Handy, 761 F.2d 1279, 1282 n. 2 (9th Cir.1985) (a substantial question is not a close one but one which is "fairly debatable.")
1
This court affirmed the district court on April 18, 1986. United States v. Gambino, 788 F.2d 938 (3d Cir.1986). The opinion notes that "Appellants concede that they have no constitutional right to a twelve-person jury, see Williams v. Florida, 399 U.S. 78, 103 [90 S.Ct. 1893, 1907, 26 L.Ed.2d 446] (1970)." Id. at 947
2
Subsequently, two courts have addressed the question. One is the Second Circuit, which sustained the amended Rule 23(b) in United States v. Stratton, 779 F.2d 820 (2d Cir.1985). The other is this court, in the opinion rejecting the appeals of defendant Smith and his co-defendant Stoneman. United States v. Smith, 789 F.2d 196 (3d Cir.1986). Compare, United States v. Gambino, supra, note 1
3
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Justices Harlan and Stewart dissented
4
18 U.S.C. Sec. 3771
5
Justice White wrote for the Court in Williams v. Florida. On the jury issue (the case also presented a notice-of-alibi issue not pertinent here) Justices Harlan, Stewart and Marshall dissented from the Court's pronouncement that a federal criminal jury could number fewer than twelve. Justice Blackmun did not participate
6
Thompson v. Utah, 170 U.S. 343, 355, 18 S.Ct. 620, 624, 42 L.Ed. 1061 (1898); accord. Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854 (1938)
7
With respect to a change in "procedure" which did not involve modifying long-accepted constitutional architecture, see Justice Roberts' opinion for the Court and Justice Frankfurter's dissent in Sibbach v. Wilson, 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941)
8
See United States v. Smith, supra, note 2
|
346 F.3d 818
UNITED STATES of America, Plaintiff-Appellee,v.Demon ECHOLS, Defendant-Appellant.
No. 02-3584.
United States Court of Appeals, Eighth Circuit.
Submitted: May 14, 2003.
Filed: October 14, 2003.
Brian N. Toder, argued, White Bear Lake, MN, for appellant.
Bridgid E. Dowdal, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee.
Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and SMITH CAMP,* District Judge.
LOKEN, Chief Judge.
1
After a jury convicted De'mon Echols of federal robbery and firearms offenses, the district court1 sentenced him to 346 months in prison. Echols appeals, arguing the district court abused its discretion and violated his rights under the Confrontation Clause of the Sixth Amendment when it denied his request to cross-examine the crime victim on his illegal alien status. We affirm.
2
Dixie Dixon and Echols kidnaped Miguel Cigarrero on July 14, 2001. Echols held a gun in the back seat of Cigarrero's car as Dixon drove the trio to automated teller machines in south Minneapolis, trying unsuccessfully to withdraw money from Cigarrero's bank account. Echols threatened to kill Cigarrero if he tried to escape. Dixon then drove to Cigarrero's apartment, leaving Echols in the car with Cigarrero while Dixon entered the building. Cigarrero alerted a passing patrol car and escaped. The police captured Echols and Dixon, and Cigarrero identified them at the scene. The jury convicted Echols of carjacking, being a felon in possession of a firearm and ammunition, and carrying a firearm in relation to a crime of violence. See 18 U.S.C. §§ 2119, 922(g), 924(c)(1)(A) and (e).
3
Before the start of trial, the government asked whether the district court would admit evidence of Cigarrero's status as an illegal alien, because that might affect voir dire of the prospective jurors. Defense counsel Johnson stated, "I guess I would object to not being able to go into his illegal status." The court responded:
4
THE COURT: I'm going to reserve any ruling on the relevance of the citizenship status of the victim until I hear a little bit more about what this case is and how the victim's credibility is assailed during the cross-examination, if at all. It strikes me that it's a better subject for a curative jury instruction at the conclusion of the case ... rather than inquiring about it on voir dire. So I will leave the issue alone. I would ask, Mr. Johnson, that prior to seeking to elicit such testimony from the victim, that you approach the bench and I will give you a green or red light prior to you having that matter come out.
5
MR. JOHNSON: That's fine, your Honor.
6
After selection of the jury but before the government presented its case-in-chief, counsel and the district court returned to this issue:
7
MR. JOHNSON: With regard to the immigration status.... I would simply take the position that if the victim is going to testify, everything and anything about him on cross-examination I should be able to ask.
8
I'm basing this [on], I've received reports [that] Mr. Dixon has indicated that he and the victim, Mr. Cigarrero, knew each other, and they put together a little scheme to try to get money out of his wife....
9
THE COURT: I'm going to have to see how that develops.... If it's just a fact that ... he's not a legal alien .... and that's a mere coincidence ... I don't think it has any probative value. I think its prejudicial value exceeds it.
10
On the other hand, if there is some reason to believe this victim was selected perhaps because he wouldn't likely go to the police because he is illegal or some factual background that makes it more relevant, I will keep an open mind as to the relevance reemerging.
11
But ... with the limited submissions I've had so far ... there isn't any basis to believe that the immigration status of the victim had anything whatsoever to do with ... who was selected and it was a random victim, [so] I will remain with the ruling that you are required to approach the bench prior to eliciting any testimony about immigration status.
12
MR. JOHNSON: That's fine.
13
Neither party raised the issue of illegal alien status during Cigarrero's lengthy testimony as the government's principal trial witness.
14
On appeal, Echols argues that the district court abused its discretion by precluding him from cross-examining Cigarrero about his illegal alien status. This fact was relevant to credibility, Echols argues, as "the threat of deportation would act as a powerful incentive for Cigarrero to please the police officers."
15
We conclude that Echols did not preserve this issue for appeal for three distinct reasons. First, after receiving an unfavorable ruling prior to trial, Echols did not raise the issue during trial. "Even if an issue is raised pre-trial ... an attorney must make an offer of proof during the trial in order to preserve the issue for appeal." United States v. Kirkie, 261 F.3d 761, 767 (8th Cir.2001).
16
Second, the district court's pretrial ruling was tentative, and the court expressly invited Echols to raise the issue during trial, when its relevance could be weighed more accurately against the risk of unfair prejudice. Because the district court explicitly reserved its final ruling, Echols "cannot argue that an objection at trial would have been futile." United States v. Mihm, 13 F.3d 1200, 1204 n. 3 (8th Cir.1994). Thus, his failure to seek a final ruling at trial waived the issue.
17
Third, Echols did not present to the district court the relevance argument he makes on appeal. Prior to trial, defense counsel alluded to a possible scheme between Dixon and Cigarrero that had no apparent relationship to the latter's immigration status and broadly asserted that he should be allowed to cross-examine about "everything and anything." The alien status question was not revisited at trial. Although the Sixth Amendment's Confrontation Clause guarantees a defendant the right to cross-examine adverse witnesses, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about ... prejudice." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see FED. R. EVID. 403 (a court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice"). Here, the district court expressed concern about possible prejudice and invited Echols to explain the relevance of Cigarrero's alien status. Echols did not do so. He first presented his motive-to-cooperate and credibility arguments in a post-trial motion for new trial. We cannot conclude that the trial court abused its discretion by excluding potentially prejudicial evidence when the proponent failed to show its relevance. See Kirkie, 261 F.3d at 767.
18
The judgment of the district court is affirmed.
Notes:
*
The HONORABLE LAURIE SMITH CAMP, United States District Judge for the District of Nebraska, sitting by designation
1
The HONORABLE ANN D. MONTGOMERY, United States District Judge for the District of Minnesota
|
947 F.Supp. 347 (1996)
HOOPLA SPORTS AND ENTERTAINMENT, INC., Plaintiff,
v.
NIKE, INC. and Columbia Broadcasting Systems, Defendants.
No. 96 C 1642.
United States District Court, N.D. Illinois, Eastern Division.
November 19, 1996.
*348 *349 Thomas William Flannigan, Law Office of Thomas Flannigan, Chicago, IL, Edward J. Moran, Chicago, IL, David Peter Cudnowski, David Cudnowski, Ltd., Chicago, IL, for Hoopla Sports and Entertainment, Inc.
Bart Allen Lazar, Alan S. Dalinka, Michael Levinson, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Nike, Inc. and Columbia Broadcasting Systems.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
Plaintiff Hoopla Sports and Entertainment, Inc. sues defendants Nike, Inc. and Columbia Broadcasting Systems ("CBS"), claiming that they wrongfully usurped his creation, a "U.S. versus the world" basketball game involving all-star teams of high school age boys. Hoopla seeks $2,000,000 in compensatory damages and punitive damages for trademark infringement, copyright infringement, breach of contract, intentional interference with prospective economic advantage, violations of the Illinois Deceptive Business Practices Act, and fraud. The defendants' motion to dismiss the complaint is presently before the Court. For the reasons that follow, the motion is granted.
RELEVANT FACTS
The following recital of facts is drawn from the allegations of the complaint and its exhibits, which we take as true when considering a motion to dismiss. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). John *350 Walsh, President of Hoopla, conceived of the idea to stage a "U.S. versus the world" basketball game involving all-star teams of high school age boys, ultimately titled the "Father Liberty Game" (FLG).[1] Although all-star games, international "U.S. versus the world" games, and high school age basketball games had all been played before, this was the first time all of these elements had been combined into one event. The theme of the event was international peace and freedom, and a special feature of the game was the involvement of players from different ethnic areas in the former Yugoslavia, to promote understanding among these individuals and direct attention to the war in Bosnia.
The proposed game was described in an Event Profile bearing the title "1994 Father Liberty Game." See Compl. Ex. 2. The Event Profile generally described the FLG, which was to be played on June 18, 1994 on the eve of Father's Day, noting that the game was being played to promote international peace and freedom, with special recognition for the contributions of the men and women of the armed services toward those goals. The Event Profile also listed the tentative line-up of the U.S. team ("Team Liberty USA") and the international team ("Nations United For Peace"). The Event Profile expressed the hope that the game would become an annual event. The second and third pages of the Event Profile bore the notation "©1994 John Walsh ALL RIGHTS RESERVED" on the bottom of each page.
Walsh first contacted a representative of the United States Army in Germany in October 1993 about staging the FLG. Walsh faxed an Event Profile to the Army in January 1994. Meanwhile, Walsh continued with preparations for the game, contacting international and American players and coaches to request their participation. On March 18, 1994, Walsh sent a letter to Rich Sheubrooks, the Sports Marketing Director for defendant Nike, soliciting Nike's sponsorship for the FLG and enclosing a copy of the Event Profile. Id. Ex. 3. The letter described the current status of Walsh's efforts to recruit various all-star-level high school players, and stated, "We have attempted to keep the announcement secretive until all arrangements have been finalized and sponsors selected. However I have already received calls from USA Today and several television producers about this event." The letter explained that "As you will not be putting on the all-star game in Chicago this year, I thought you might be interested," and asked Sheubrooks to "look it over and call me with any questions." The letter concluded, "I wanted to bring it to your attention first. If you are not interested then please advise me so I can make other arrangements." Id. The letter did not directly describe what was being asked of Nike. Although it appears from its tone that the letter may not have been the first communication between Walsh and Nike, no prior communications appear in the complaint.
About May 8, 1994, Walsh was notified by the Army that it could not stage the FLG. Walsh immediately decided to stage the game in Chicago under other sponsorship. Walsh solicited corporate sponsorship for the FLG in Chicago by writing letters to many companies, including Kodak Company and Lufthansa Airlines. Walsh wrote a second time to Nike on May 26, again enclosing a copy of the Event Profile and "a description of sponsorship opportunities." Id. Ex. 5. The letter concluded, "Steve, please review this proposal and call John Walsh ... if you have any questions or Nike, Inc. has any interest in this unique opportunity." Id.
Nike agreed to sponsor the June 1994 FLG, and provided uniforms for both teams. Hoopla alleges that Nike also agreed to sponsor the FLG the following year, and on a yearly basis after that. Hoopla notes that the FLG was "granted sanction" by U.S.A. Basketball, "a not for profit corporation that purports to regulate some aspects of basketball" in this country. Compl. ¶ 23.
The FLG took place on June 18, 1994 at Alumni Hall at DePaul University in Chicago. Walsh put considerable effort as well as funds of his own into staging the FLG. After the conclusion of the FLG, Walsh began making preparations for the second annual FLG. These preparations ended when *351 Walsh learned that Nike was planning to stage a nearly exact replica of the FLG in Springfield, Massachusetts on May 13, 1995, to be known as the Nike Hall of Fame Hoop Summit ("Hoop Summit"). Hoopla's attorneys wrote Nike, noting that "Mr. Walsh brought the game to Nike for sponsorship," and that he "has invested thousands of hours of hard work and tens of thousands of dollars and his reputation as a promoter in high school basketball tournaments developing the Father Liberty Game.... The event profile of the ... Hoop Summit smacks of misappropriation, tortious interference and breach of an implied contract by Nike." Compl. Ex. 10.
On May 13, 1995, CBS broadcast the Hoop Summit. During the broadcast, CBS, through its play-by-play announcing and its color commentary and through an interview of one of the Hoop Summit coaches, made certain statements:
For the first time ever U.S. Basketball has fielded a team of 12 high school All-Americans and today they'll take on a team of international young stars representing 10 different countries from 5 continents.
Well, it is the first time ever that the United States has put together a select team for this level of competition which I think is great. We have the Dream Team coming up in Atlanta and now we have this in the under 19 age group.
In my personal recollection, I can never remember anything like this having been done before.
Compl. ¶¶ 37-39 (emphasis supplied). Hoopla alleges that these statements were false, as the event was in fact an identical copy of the FLG, down to the theme of international peace and the game's particular focus on Bosnia, including the participation of players from different Bosnian ethnic backgrounds. Nike and CBS planned to, and did, stage a second annual game in April, 1996, known as the "Nike-Naismith Hoop Summit."
Hoopla brought suit against Nike and CBS on March 22, 1996, alleging a variety of claims against them. The defendants have moved to dismiss all claims.
LEGAL STANDARDS
A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir.1989). When considering a motion to dismiss, the court views all facts alleged in the complaint, as well as any inferences reasonably drawn therefrom, in the light most favorable to the plaintiff. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). 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. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). In short, the only question is "whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992) (citing Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02).
ANALYSIS
I. TRADEMARK INFRINGEMENT
Count I asserts that Nike and CBS infringed the Father Liberty Game trademark in violation of section 43(a) of the Lanham Act by holding and promoting the nearly identical Hoop Summit. Hoopla does not argue that defendants infringed its trademark by using the "Father Liberty Game" mark without authorization. Defendants never attached or used that mark in association with the 1995 game called the Hoop Summit. Rather, Hoopla's trademark claim asserts that the defendants took Hoopla's product, the international high school age all-star basketball game it created in 1994, removed the trademark "Father Liberty Game," and presented the game to the basketball-consuming public as their own creation.
This theory, which has been variously referred to as "reverse passing off," "reverse palming off," "rebranding," and the like, is a recognized variant of the "false designation of origin" prohibited by § 43(a) of the Lanham Act. The relevant portion of that section states:
*352 (1) Any person who, on or in connection with any goods or services, ... uses in commerce ... any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, ...
* * * * * *
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a).
Reverse passing off "occurs `when a person removes or obliterates the original trademark, without authorization, before reselling goods produced by someone else.'" Web Printing Controls Co., Inc. v. Oxy-Dry Corp., 906 F.2d 1202, 1203 n. 1 (7th Cir.1990) (quoting Smith v. Montoro, 648 F.2d 602, 605 (9th Cir.1981)). The concept of reverse passing off may also cover situations in which the defendant markets a product directly derived from the plaintiff's product but mislabeled to mask the product's origin. See Pioneer Hi-Bred Int'l v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1241-42 (8th Cir.1994) (corn seed seller's marketing of seed derived from competitor's genetic material as its own was reverse palming off); Summit Mach. Tool Mfg. Corp. v. Victor CNC Sys., Inc., 7 F.3d 1434, 1437 (9th Cir.1993) (one who sells "another's product that has been modified slightly and then labeled with a different name" may be guilty of reverse palming off) (quoting Roho, Inc. v. Marquis, 902 F.2d 356, 359 (5th Cir. 1990)).
While both traditional palming off and reverse palming off involve the misappropriation of another's talents, "the gravamen of the harm in a reverse palming [off] case is that `the originator of the misidentified product is involuntarily deprived of the advertising value of its name and of the goodwill that otherwise would stem from public knowledge of the true source of the satisfactory product.'" Rosenfeld v. W.B. Saunders, 728 F.Supp. 236, 241 (S.D.N.Y.) (quoting Smith v. Montoro, 648 F.2d at 607), aff'd without op., 923 F.2d 845 (2d Cir.1990); see also Waldman Pub'g Corp. v. Landoll, Inc., 43 F.3d 775, 781 (2d Cir.1994) (Lanham Act section prohibiting false designation of origin is aimed at misrepresentation of credit properly belonging to the original creator of a work); Cleary v. News Corp., 30 F.3d 1255, 1260 (9th Cir.1994) (reverse passing off "occurs when a product is mislabeled to mask the creator's contribution").
A claim of reverse passing off has three elements: (1) the defendant used a false designation of origin, or a false description or representation, in connection with goods or services; (2) the defendant caused the goods or services to enter interstate commerce; and (3) the plaintiff is a person "who believes that he or she [is or] is likely to be damaged as a result thereof." Web Printing, 906 F.2d at 1204 (quoting § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)). The defendants here argue that Hoopla has not made out a claim for reverse passing off because the FLG is not a "good" or "service" produced by Hoopla and resold under another name. The defendants also argue that the mere use of the "Father Liberty Game" trademark in connection with the 1994 game produced by Hoopla does not give Hoopla a monopoly over the production of all similar games in the future. It is the second argument that we find persuasive here.
The 1994 FLG
Hoopla/Walsh has created two things: an idea for an international all-star high school boys' basketball game, and the 1994 incarnation of that idea, trademarked under the name "Father Liberty Game." We reject the defendants' argument that the latter of these, the 1994 athletic event itself, was not a "good" or "service" within the meaning of the Lanham Act. They have directed us to no law supporting that argument, nor can we find any: what case law exists undermines their argument. See generally San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (implying *353 that the Olympic games are a protectible good or service within the meaning of the Lanham Act). By the same token, however, if the 1994 FLG event was a "good" produced by Hoopla, the 1995 Hoop Summit event was a "good" created by the defendants. Hoopla/Walsh expended no efforts on behalf of the 1995 game staged by Nike and CBS. Indeed, the complaint does not allege that Hoopla/Walsh had any involvement in the production of that event. Thus, the thing that was taken by the defendants was Hoopla's idea for the event, not the labors involved with realizing that idea in the form of a particular game.[2]
The Idea for This Type of Game
We agree with the defendants that while a trademark can protect a product from misappropriation under the Lanham Act, it cannot protect the idea behind that product from being used by others. See Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 611 F.2d 296, 300 (9th Cir.1979) ("Trademarks are not properly used ... to further or perpetuate product monopolies."); see also Sports Design & Dev., Inc. v. Schoneboom, 871 F.Supp. 1158, 1160 n. 2 (N.D.Iowa 1995) ("trademark is a distinctive mark of authenticity" through which products of particular manufacturers or authors may be distinguished from those of others); Fila USA, Inc. v. Kim, 884 F.Supp. 491, 493 (S.D.Fla.1995) (a trademark identifies a particular product as coming from a particular source). "A trademark cannot be used to protect a mere concept or idea for a product." Parham v. Pepsico, Inc., 927 F.Supp. 177, 179 (E.D.N.C.1995) (citing Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901, 907 (7th Cir.1983)), aff'd without op., 86 F.3d 1151 (4th Cir.1996). Because Hoopla's "Father Liberty Game" trademark cannot protect the idea behind the game, and there are no allegations that defendants misappropriated more than the idea itself (as opposed to Hoopla/Walsh's labors, goodwill, etc.), we dismiss Count I of the complaint.
II. COPYRIGHT INFRINGEMENT
A. U.S. Copyright Infringement Claim
Count II of Hoopla's complaint is a claim for copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq. (1994). Hoopla asserts a copyright in the Event Profile, which states at the bottom of the second and third pages, "©1994 John Walsh ALL RIGHTS RESERVED." The complaint alleges that Nike received at least one copy of the Event Profile during Walsh's attempt to solicit Nike as a sponsor of the FLG.
Hoopla also appears to assert a copyright interest in the FLG itself. See Compl. ¶ 54 ("The copyright for the FLG involved an original work, a sports event that had never been held anywhere in the world prior to Walsh's conception of the work."). Hoopla alleges that both Nike and CBS had access to the "original work of the FLG," id. ¶ 55, and that both copied the work by staging and promoting the Hoop Summit. We address this latter claim first.
Rights in the 1994 FLG
A claim of copyright infringement has two elements: ownership of a valid copyright in a work, and impermissible copying of the original elements of the protected work. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 1295, 113 L.Ed.2d 358 (1991). Where copying cannot be shown directly, it may be shown indirectly through circumstantial evidence that (1) the claimed infringer had access to the protected work, and (2) the allegedly infringing work is substantially similar to the protected work. Selle v. Gibb, 741 F.2d 896, 901 (7th Cir.1984).
The difficulty with Hoopla's copyright claim alleging infringement of the FLG is that Hoopla cannot assert a copyright in the FLG itself. It is beyond question that copyright *354 may not be used to protect ideas, only particular expressions of ideas. 17 U.S.C. § 102(b) ("In no case does copyright protection for an original work ... extend to any idea, ... concept, principle, or discovery, regardless of the form in which it is described...."). Thus, the idea for the FLG is not protectible through copyright.
Nor can Hoopla claim ownership of a valid copyright in the sporting event that was the 1994 FLG. First, it is doubtful whether a sports event is a copyrightable work. To the extent that courts have considered the question, most courts have concluded that a sports game itself (as opposed to a broadcast of the game[3]) is not copyrightable. See, e.g. National Basketball Ass'n v. Sports Team Analysis & Tracking Sys., Inc., 931 F.Supp. 1124, 1142-45 (S.D.N.Y.1996) (analyzing a number of sources including NIMMER ON COPYRIGHT and the legislative history of the Copyright Act, and concluding that an NBA game, as distinct from the broadcast of it, is not copyrightable), amended and superseded on other grounds by 939 F.Supp. 1071, 1074 n. 1 (S.D.N.Y.1996); 1 MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 2.09[F] (1996) (discussing problems that could arise if athletic events themselves were treated as copyrightable). But cf. Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 669 n. 7 (7th Cir.1986) (baseball players' performances "possess the modest creativity required for copyrightability"). The Copyright Act defines "works of authorship" as including literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 17 U.S.C. § 102(a). "Noticeably absent from this illustrative list of works of authorship, however, is a category for sports events or other analogous organized events." National Basketball Ass'n, 931 F.Supp. at 1143.
Courts have also held that "games" themselves (as opposed to the cards, boards, instruction books, etc. with which games may be played) are not copyrightable. See Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 611 F.2d 296, 300 n. 1 (9th Cir.1979) (game concept cannot be copyrighted); Affiliated Hosp. Prods., Inc. v. Merdel Game Mfg. Co., 513 F.2d 1183, 1188 (2d Cir.1975) (games that are in the public domain, and the rules to those games, are not copyrightable). Thus, the methods or rules of playing basketball games are not generally copyrightable. See 1 NIMMER ON COPYRIGHT § 2.18[H][3] ("no copyright may be obtained in the system or manner of playing a game or engaging in any other sporting or like activity"). Hoopla has provided no reason why this particular basketball game, the FLG, should be treated differently.
Second, even if basketball games were copyrightable, Hoopla has not complied with the necessary requisites to copyright the FLG. It is a requirement of the Copyright Act that the expression must be fixed in a tangible medium before it can be copyrighted. See 17 U.S.C. § 102(a) ("Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression."). This is not merely a statutory requirement of the Copyright Act, but is required by the text of the Constitution itself, which protects only "writings," i.e., tangible forms of expression. See 1 NIMMER ON COPYRIGHT § 2.03[B]. Hoopla nowhere alleges that the FLG was recorded or otherwise "fixed in any tangible medium of expression."[4] Thus, even leaving aside the *355 question of whether sports events fall within the protection of the Copyright Act, the Court finds as a matter of law that Hoopla does not possess a copyright under the Copyright Act in the FLG itself.
Rights in the Event Profile
Hoopla has also alleged that it held a valid copyright in the Event Profile. Hoopla's claim that its copyright in the Event Profile was infringed is deficient as well, however. This claim falters on the second requirement for pleading infringement, impermissible copying. Hoopla has not alleged that the defendants copied the Event Profile. Instead, both the language of the complaint and the gist of Hoopla's claim are to the effect that the defendants copied the FLG.
As discussed above, Hoopla owns no valid copyright in the FLG itself, and so the athletic event that was the FLG cannot be the subject of a copyright claim. And the copying of the FLG will not support a claim that the Event Profile was impermissibly copied.
The gist of Hoopla's complaint is that the defendants' copying of the FLG shows that the Event Profile was indeed "copied" within the meaning of the Copyright Act. Hoopla provides no support for this proposition, however, and fails to cite a single case holding that the recreation of an event described in a copyrighted promotional document infringes the copyright of that document. As we can find no case law suggesting that Hoopla has adequately alleged the copying of the Event Profile, we dismiss Count II's claim of domestic copyright infringement.
B. Berne Convention Copyright Claim
Count III of the complaint is based on violations of the Berne Convention for the Protection of Literary and Artistic Works, an international treaty addressing copyrights. The United States acceded to the Berne Convention via the Berne Convention Implementation Act of 1988, Pub.L. No. 100-568, 102 Stat. 2853.
The Berne Convention does not create a separate copyright cause of action, however. Section 104(c) of the Copyright Act makes clear that the Berne Convention provides no greater or lesser protection for copyright than the Copyright Act itself:
Effect of the Berne Convention. No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.
17 U.S.C. § 104(c). Thus, the Berne Convention cannot be used to support a separate copyright claim.
Hoopla explains that it has alleged this nonexistent claim as a fallback in the event that the defendants "are able to successfully challenge the validity of Plaintiff's copyright registrations." Pl.Resp. to Def. Mot. Dismiss at 8. Under the Berne Convention, foreign nationals are permitted to file copyright infringement actions without the necessity of showing that the copyright has been properly registered. United States citizens must still comply with the registration requirement, however. Hoopla asserts that this distinction violates the Equal Protection Clause of the Fourteenth Amendment.
Hoopla has no standing to challenge the constitutionality of the Berne Convention Implementation Act now, however. Hoopla alleges that it has properly registered its copyright in the Event Profile. Compl. ¶ 52. As Hoopla well knows, when considering a motion to dismiss we take the allegations of the complaint as true. Doherty v. City of Chicago, 75 F.3d at 322. Because Hoopla asserts that it has registered its copyright, the non-registration provisions of the Berne Convention are not relevant to this suit. Accordingly, the Court dismisses Count III.
III. BREACH OF CONTRACT
Count IV of the complaint is a breach of contract claim against Nike only. The Court *356 finds that it is deficient for a multitude of reasons.
To plead a contract claim, a plaintiff must make allegations raising an inference that: (1) a contract with definite and certain terms existed between the parties; (2) the plaintiff performed its obligations under the contract; (3) the defendant breached its obligations under the contract; and (4) the plaintiff suffered damages as a result. Bercoon, Weiner, Glick & Brook v. Manufacturers Hanover Trust Co., 818 F.Supp. 1152, 1155 (N.D.Ill.1993); cf. Cleland v. Stadt, 670 F.Supp. 814, 817 (N.D.Ill.1987) (plaintiff must allege formation of a contract, terms of that contract, performance by plaintiff, breach by defendant, and damages). Nike contends that Hoopla has failed to plead the essential terms of the contract, and it has also failed to plead that it performed its own obligations under that contract.[5]
We find that Nike's arguments are correct on both counts. The complaint indeed lacks sufficient allegations describing the terms of the alleged contract between Hoopla/Walsh and Nike. The complaint alleges that:
Walsh solicited Nike's sponsorship of the FLG, sending Nike copies of the Event Profile. The Profile described only the proposed 1994 FLG, adding that, "It is our hope that the game will be played annually in different parts of the world." See Compl. ¶¶ 16, 21; Exs. 2, 3, 5.
Nike agreed to sponsor the FLG in 1994 and provided uniforms for both teams for that game. Id. ¶ 21.
"Walsh and Nike agreed that Nike would sponsor the FLG the following year, and on a yearly basis after that." Id. ¶ 22.
The allegations of ¶¶ 21-22 do describe at least some of Nike's obligations under the alleged agreement. The complaint is silent, however, as to other essential terms, such as the obligations owed by Hoopla/Walsh in return, the consideration for the agreement, the time and place of performance, the role of Walsh and/or Hoopla in future games, etc.
A complaint must set forth factual allegations that outline the essential elements of the claim, and legal conclusions lacking adequate support should not be considered. See Benson v. Cady, 761 F.2d 335, 338 (7th Cir.1985). Definite and certain terms of the contract are one element of a contract claim under Illinois law. See Perez v. Abbott Labs., No. 94 C 4127, 1995 WL 86716 at *8 (N.D.Ill. Feb. 27, 1995) (citing Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill.2d 306, 314, 113 Ill.Dec. 252, 256, 515 N.E.2d 61, 65 (1987)); see also Cleland, 670 F.Supp. at 817 (plaintiff must allege the terms of the contract).
In Moore v. Fidelity Fin. Servs., Inc., 869 F.Supp. 557 (N.D.Ill.1994), the defendant moved for a more definite statement of a contract claim. The court there stated that, to meet the notice pleading standards of Rule 8(a), a contract claim must identify "[1] the relevant agreement, [2] the basic contents of that agreement, and [3] the pertinent parties." Id. at 560-61 (citations omitted); accord Khalid Bin Talal Bin Abdul Azaiz Al Seoud v. E.F. Hutton & Co., Inc., 720 F.Supp. 671, 685 (N.D.Ill.1989). In this case, because there is insufficient description of the contract terms, the second require *357 the contents of the alleged agreement is missing.
Even if this were not sufficient reason to dismiss the contract claim, the claim is also deficient for another reason: it fails to allege that Hoopla performed its obligations under the contract and any conditions precedent. As noted above, such an allegation is an essential element of a contract claim. Bercoon, Weiner, Glick & Brook, 818 F.Supp. at 1155; Cleland, 670 F.Supp. at 817; see also Redfield v. Continental Cas. Corp., 818 F.2d 596, 610 (7th Cir.1987) (allegation that the plaintiff performed all contractual conditions required of him is an essential element of a contract claim). Although Rule 9(c) permits a plaintiff "to aver generally that all conditions precedent have been performed or have occurred," FED.R.CIV.P. 9(c), even this liberal standard has not been met here. The complaint alleges that Walsh/Hoopla staged the 1994 FLG, but there is no indication that this in itself fulfilled the plaintiff's obligations or met the conditions precedent under the alleged contract. Indeed, as noted above, there is nothing in the complaint that even tells us what the plaintiff's obligations were, or that would allow us to infer that staging the FLG was part of them. For all of the foregoing reasons, the Court finds that Count IV fails to state a claim, and dismisses it accordingly.
IV. INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
Count V is a claim for intentional interference with prospective economic advantage, based on allegations that the defendants' staging of the 1995 Hoop Summit interfered with Hoopla's expectations of some type of business relationship with potential FLG sponsors Kodak and Lufthansa. See Compl. ¶¶ 19, 71-73. As with the contract claim in Count IV, the Court finds Count V to be deficient in several ways.
The Illinois Supreme Court has recently outlined the elements of the tort of intentional interference with prospective economic advantage: "(1) a reasonable expectancy of entering into a valid business relationship; (2) the defendant's knowledge of the expectancy; (3) an intentional and unjustified interference by defendant that induced or caused a breach or termination of expectancy; and (4) damage to the plaintiff resulting from the defendants' interference." Anderson v. Vanden Dorpel, 172 Ill.2d 399, 406-07, 217 Ill.Dec. 720, 723, 667 N.E.2d 1296, 1299 (1996). We find that Hoopla has not pled either the first or third elements.
The clearest problem is Hoopla's failure to adequately plead that Nike and CBS staged the Hoop Summit with the intention of interfering with Hoopla's relationships with possible FLG sponsors such as Kodak and Lufthansa. Nothing in the complaint supports the inference that Nike and CBS were specifically targeting Hoopla's expectancies (to the extent that there were any, see infra) with Kodak and Lufthansa.[6] The plaintiff "`must allege facts which indicate that the defendants acted with the purpose of injuring plaintiff's expectancies.'" Kemmerer v. John D. & Catherine T. MacArthur Found., 594 F.Supp. 121, 123 (N.D.Ill.1984) (quoting Crinkley v. Dow Jones & Co., 67 Ill.App.3d 869, 880, 24 Ill.Dec. 573, 581, 385 N.E.2d 714, 722 (1st Dist.1978)). Moreover, "the defendant[s'] interference must be between the plaintiff and a third party." Eisenbach v. Esformes, 221 Ill.App.3d 440, 444, 163 Ill.Dec. 930, 933, 582 N.E.2d 196, 199 (2d Dist.1991). Thus, the plaintiff must allege "some conduct directed toward a third party through which defendants purposely cause that third party not to enter into or continue a prospective [economic] relationship with plaintiff." McIntosh v. Magna Sys., Inc., 539 F.Supp. 1185, 1193 (N.D.Ill.1982). Because Hoopla has not done so here, its claim must fail.
*358 It is also dubious whether Hoopla has adequately alleged that it had a valid business expectancy with Lufthansa and Kodak. Hoopla alleges generally that it had such an expectancy. Compl. ¶ 71. However, ¶ 19 of the complaint (the only specific allegation on this subject) states only that "Walsh solicited corporate sponsorship ... by writing letters." It is well established that, although a plaintiff usually may rely on general allegations, where a plaintiff pleads particulars, and they show he has no claim, then he has pled himself out of court. Thomas v. Farley, 31 F.3d 557, 558 (7th Cir.1994) (citations omitted). In those cases, the specific allegation will control over the general. Id.
In Vanden Dorpel, the Illinois Supreme Court held that, although a plaintiff need not allege that it had a firm offer in hand prior to the alleged interference, mere allegations that the plaintiff was involved in the process of negotiations with a third party were insufficient to state a claim. Id., 172 Ill.2d at 407-08, 217 Ill.Dec. at 723, 667 N.E.2d at 1299. "The hope of receiving a[n] ... offer is not a sufficient expectancy." Id., 172 Ill.2d at 408, 217 Ill.Dec. at 723, 667 N.E.2d at 1299. Hoopla has simply alleged that it was seeking sponsorship from various companies. This is insufficient to adequately allege that Hoopla had a viable business relationship with the companies it names in the complaint.
As Hoopla has not adequately alleged either valid business expectancies or action taken by the defendants directed toward those expectancies, it has failed to state a cause of action for intentional interference with prospective economic advantage, and Count V must be dismissed.
V. ILLINOIS DECEPTIVE TRADE PRACTICES ACT
The defendants have moved to dismiss Count VI, a claim under the Illinois Deceptive Trade Practices Act, 815 ILCS § 510/1 et seq., on the grounds that the monetary relief sought in that count is not available under that statute. Hoopla concedes that their argument is correct, and has indicated a desire to amend its complaint to allege instead a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS § 505/1 et seq. The Court dismisses Count VI of the complaint.
VI. FRAUD
The final claim raised by Hoopla is a claim of common law fraud (Count VII). In order to state a cause of action for fraud, a plaintiff must allege: "(1) [a] false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance." Soules v. General Motors Corp., 79 Ill.2d 282, 286, 37 Ill.Dec. 597, 599, 402 N.E.2d 599, 601 (1980).
Hoopla alleges that the defendants' false statements involved representations that the 1995 Hoop Summit was the first game of its kind, when actually that distinction belongs to Hoopla's own game, the 1994 FLG. Hoopla's allegations do not meet the requirements for pleading fraud, however. The complaint alleges neither that Nike or CBS made the alleged misrepresentations for the purpose of causing Hoopla to act, nor that Hoopla relied on those misrepresentations. Rather, the complaint alleges that the defendants intended to deceive the public, and that the public indeed relied upon the defendants' statements, but that it was Hoopla that was injured as a result of this reliance. The cause of action for common law fraud in Illinois does not encompass an action in which A makes misrepresentations to B, but it is C (a business competitor of A's) that is injured. See generally Caplan v. International Fidelity Ins. Co., 885 F.Supp. 175, 179 (N.D.Ill.1995) (where the complaint shows that the plaintiff did not rely on the alleged misrepresentation, the plaintiff cannot bring a fraud claim); Fink v. DeClassis, 745 F.Supp. 509, 513 (N.D.Ill.1990) (dismissing fraud claim where plaintiff did not allege the defendant's intent to cause plaintiff to act); Derson Group, Ltd. v. Right Management Consultants, Inc., 683 F.Supp. 1224, 1231 (N.D.Ill.1988) (dismissing fraud claim where plaintiff could not allege that defendants' misstatements had caused it to take some affirmative action); cf. Latigo Ventures v. Laventhol & Horwath, 876 F.2d 1322, 1326 *359-365 (7th Cir.1989) ("Where misrepresentations are made but not relied on directly or indirectly ..., a plaintiff in a fraud case cannot show that he was harmed by them."). "What defendant[s] allegedly did may be actionable as another kind of tort, but it was not common law fraud." Caplan, 885 F.Supp. at 179. The Court accordingly dismisses Count VII.
CONCLUSION
For all of the foregoing reasons, the Court grants the defendants' motion to dismiss. If the plaintiff desires to file an amended complaint that is consistent with this opinion and with plaintiff's counsel's responsibilities pursuant to Federal Rule of Civil Procedure 11, it must move for leave to do so on or before December 31, 1996, attaching a draft of the amended complaint. The Court will scrutinize any such proposed amended complaint carefully.
NOTES
[1] Walsh has assigned all his rights and interests in the FLG to Hoopla.
[2] Our conclusion that Hoopla has not stated a claim for trademark infringement might be different if there were any allegations that in staging the 1995 game Nike or CBS traded on the goodwill created by Hoopla/Walsh's efforts in connection with the 1994 game. In that case, it might be possible to read the complaint as alleging that the defendants indeed took credit for another's labors in order to advance their own competing product. There are no such allegations in the present complaint, however.
[3] There is no doubt that broadcasts of sports events (or any other broadcast) may be copyrightable if the event is also recorded. See 17 U.S.C. § 101 (definition of "fixed" includes a "work consisting of sounds, images, or both, that are being transmitted" if a recording of the event is made simultaneously with the transmission); National Ass'n of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367, 378 (D.C.Cir.1982) (creative contributions made by television cameramen, editors, etc. to a sports broadcast are protectible by copyright); Baltimore Orioles, 805 F.2d at 669 n. 7 (same). Cf. Easter Seal Soc'y for Crippled Children and Adults v. Playboy Enters., 815 F.2d 323, 336-37 (5th Cir.1987) (videotape of live music session recorded by a public television station was work of joint authorship by performers and television crew).
[4] In ¶¶ 52-53 of the complaint, Hoopla alleges that the Event Profile, but not the FLG itself, was fixed in a tangible form and was properly registered with the U.S. Copyright Office.
[5] Nike also argues that this claim is barred by the Statute of Frauds. As we find that Hoopla's contract claim fails on other grounds, we do not reach this argument. We note that it presents another possible ground for dismissal, however, at least with regard to Nike's alleged agreement to sponsor the FLG "the following year, and on a yearly basis after that." Compl. ¶ 22. The plaintiff argues that it is inappropriate to consider affirmative defenses before it has had an opportunity to conduct discovery. We agree with our colleague Judge Williams that "[g]enerally, an affirmative defense will not support a motion to dismiss under Rule 12(b)(6)." Smith v. Orkin Exterminating Co., Inc., No. 87 C 4787, 1987 WL 17481 at *1 (N.D.Ill. Sept. 22, 1987) (citing Quiller v. Barclays American/Credit Inc., 727 F.2d 1067, 1069 (11th Cir.1984) and Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.1984)). "Nevertheless, a complaint may be dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint." Quiller, 727 F.2d at 1069. Here, paragraph 22 clearly alleges the existence of a contract that is not capable of performance within a year, and the complaint does not identify any signed writing that would comply with the requirements of the Statute of Frauds.
[6] The complaint states only that the defendants knew of the expectancies with Kodak, Lufthansa, and unspecified others, and that: "Nike intentionally interfered with the prospective economic advantage between Hoopla and [those companies], by staging the Hoop Summit, making it impossible for Hoopla to stage and benefit from sponsorship for the FLG." Compl. ¶ 73. The Court also notes that, as this allegation names only Nike, no claim against CBS under this count is stated.
|
41 So.3d 893 (2010)
DORTLEY
v.
STATE.
No. 1D10-2119.
District Court of Appeal of Florida, First District.
July 29, 2010.
Decision Without Published Opinion Affirmed.
|
NO. 07-06-0418-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 16, 2008
______________________________
DWAYNE ELONDO KING, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 6392; HONORABLE LEE WATERS, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant Dwayne Elondo King appeals his conviction by jury of the offense of
money laundering and the court-assessed punishment consisting of ten years confinement,
probated for ten years, and a $10,000 fine. We will reverse the judgment of the trial court.
Procedural and Factual Background
Appellant was charged by indictment with transporting the proceeds of criminal
activity, namely, the sale of marijuana and/or controlled substances, of a value of $20,000
or more but less than $100,000.1 Appellant plead not guilty and the matter proceeded to
jury trial.
At trial, the State presented the testimony of Trooper Jerome Ingle and Deputy
Julian Torres and a videotape from Ingle’s patrol car. Evidence showed that Trooper Ingle
stopped appellant on Interstate Highway 40 in Gray County for speeding. The trooper
testified he asked appellant to sit in the patrol vehicle while he conducted a check on his
driver’s license.2 While they waited, Ingle asked appellant where he was headed.
Appellant responded that he and his passenger, Sherman Roberts, were going to his
cousin’s funeral in Phoenix. Ingle noticed that when he asked appellant when the funeral
was going to be held, he appeared nervous and hesitant, and he stuttered. Appellant
reacted the same way to the trooper’s inquiries about his relationship with Roberts but
answered quickly without hesitation to unrelated questions. When Ingle spoke with
Roberts, he was initially reticent and calm, but as the conversation continued, he became
nervous and defensive, at one point even using his cell phone in an apparent effort to talk
with his lawyer. Roberts also told the trooper he and appellant were going to a family
1
See Tex. Penal Code Ann. § 34.02(a)(1) (Vernon 2003). This provision states that
a person commits an offense if the person knowingly acquires or maintains an interest in,
receives, conceals, possesses, transfers, or transports the proceeds of criminal activity.
“Criminal activity” means any offense, including any preparatory offense, that is classified
as a felony under the laws of Texas or the United States or punishable by confinement for
more than one year under the laws of another state. Tex. Penal Code Ann. § 34.01(1)
(Vernon 2003).
2
As Trooper Ingle completed a warning for speeding, he received notification that
appellant’s license was suspended. He issued appellant a citation for driving with an
invalid license.
2
member’s funeral in Phoenix, but the two men’s responses to his questions about the
funeral were inconsistent in some respects.
Trooper Ingle obtained consent to search the vehicle from Roberts, the owner of the
PT Cruiser appellant was driving. As he was requesting permission, Ingle noticed Roberts
twice looked over his shoulder at the rear of the vehicle. Ingle also obtained permission
from appellant to search and asked if he had any drugs, weapons, or currency. Initially,
appellant stated he had $2,000 on him. On further questioning, he admitted there was
$20,000 in the car. Through additional questions, Ingle deduced that appellant did not
know exactly how much money was in the car. Appellant told Ingle that he took the money
from the safe in the pet store he owned, intending to purchase exotic pets for the store.
Roberts told the trooper appellant owned two “dog food businesses.”
At Trooper Ingle’s request, appellant showed the trooper several bundles of money,
wrapped in rubber bands, from inside appellant’s pockets. The trooper informed appellant
that a canine was going to be called in and if the dog alerted, any money in the car would
be seized. When the dog arrived, he alerted to the right rear of the car and to a bag inside
the vehicle. The bag contained $30,000 in cash, packaged in two bundles wrapped in
rubber bands. At trial, the trooper testified that this manner of packaging was similar to
that he had seen in past money seizures and this amount was enough to buy a felony
amount of marijuana or other controlled substance.
3
Deputy Torres, a certified canine handler, testified to the training he and his drug
dog Carlos received, to the free-air sniff Carlos performed around the vehicle and to the
dog’s more directed sniff of one of the bags. Because he had not been designated an
expert witness, however, he was not allowed to testify about the meaning of Carlos’s
apparent alerts to the car and the bag. He was not allowed, for instance, to testify whether
the dog’s alerts showed the presence of narcotics on the money.3 Both officers’ testimony
included their narration of the events depicted on the videotape recording made with Ingle’s
patrol car video camera and mobile microphone.
Following presentation of the evidence, the jury found appellant guilty of the second
degree felony offense of money laundering. The trial court assessed punishment at ten
years confinement in the Institutional Division of the Texas Department of Criminal Justice,
probated for a term of ten years, and a fine in the amount of $10,000 to be paid over the
course of appellant’s probation. This appeal followed.
Sufficiency of the Evidence
By his fifth point of error, appellant contends the evidence was legally and factually
insufficient to support his conviction. We agree, finding the evidence legally insufficient.
3
The court also disallowed the State’s efforts to elicit testimony from Torres that the
dog’s alert indicated “there is a scent there, that it was in close proximity to the money and
how long the scent was there.”
4
In conducting a legal sufficiency review, we must determine whether, after reviewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318-19, 199 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State,
214 S.W.3d 9, 13 (Tex.Crim.App. 2007); Fowler v. State, 65 S.W.3d 116, 118
(Tex.App.–Amarillo 2001, no pet.). If, based on all the evidence, a reasonably-minded jury
must necessarily entertain a reasonable doubt of the defendant’s guilt, due process
requires that we reverse and order a judgment of acquittal. Swearingen v. State, 101
S.W.3d 89, 95 (Tex.Crim.App. 2003), citing Narvaiz v. State, 840 S.W.2d 415, 423
(Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).
Circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor and the standard of review on appeal is the same for both direct and circumstantial
evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004); Kutzner v.
State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999).
A legal sufficiency analysis requires an appellate court to consider all the evidence
admitted that will sustain the conviction, including improperly admitted evidence.4
Hernandez v. State, 190 S.W.3d 856, 863-64 (Tex.Crim.App. 2006). As fact finder, the jury
is the exclusive judge of the credibility of witnesses and the weight to be afforded their
testimony. Id. A reviewing court must give deference to “the responsibility of the trier of
4
Therefore, without expressing any opinion on appellant’s contention in his first
issue that the court erred under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), by allowing the trooper to testify to statements made by his co-
defendant Roberts, we have considered those statements in our legal sufficiency review.
5
fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper, 214 S.W.3d at 13, quoting Jackson,
443 U.S. at 318-19. Under the Jackson standard, we permit juries to draw multiple
reasonable inferences as long as each inference is supported by evidence presented at
trial. Hooper, 214 S.W.3d at 15. However, juries are not permitted to reach conclusions
based on mere speculation or factually unsupported inferences or presumptions.5 Id. at
16. When we consider a contention that a jury’s finding based on inferences is not
supported by legally sufficient evidence, our task is to determine whether the necessary
inferences are reasonable based on the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict. Id. at 16-17.
Consistent with the indictment, the court’s charge authorized the jury to find
appellant guilty if it found beyond a reasonable doubt that, on or about the named date in
Gray County, Texas, he knowingly transported the proceeds of criminal activity, to wit: the
sale of marihuana and/or controlled substances, of the value of $20,000 or more but less
than $100,000. It is undisputed appellant was, at that time and place, knowingly
transporting cash of that value. The issue is the sufficiency of the evidence to prove
beyond a reasonable doubt the cash was the proceeds of the sale of a controlled
substance.
5
In Hooper, the Court of Criminal Appeals further distinguished inferences from
speculation, defining an inference as “a conclusion reached by considering other facts and
deducing a logical consequence from them” and speculation as “mere theorizing or
guessing about the possible meaning of facts and evidence presented.” The court noted
that “[a] conclusion reached by speculation may not be completely unreasonable, but it is
not sufficiently based on facts or evidence to support a finding beyond a reasonable
doubt.” Hooper, 214 S.W.3d at 16.
6
It is undisputed also that there is no direct evidence the cash found in the vehicle
constituted such proceeds. Both testifying officers acknowledged having no information
about the source of the cash or appellant’s means of acquiring it. If we are to affirm the
jury’s finding of that ultimate fact over appellant’s legal sufficiency challenge, we must
agree with the State that the finding is supported by the cumulative force of the
circumstantial evidence and reasonable inferences from that evidence. After carefully
reviewing the evidence, we agree instead with appellant that the finding is supported by
no more than speculation.
We affirmed a conviction for money laundering against a legal sufficiency challenge
in Granado v. State, No. 07-05-0444-CR, 2006 WL 2466972 (Tex.App.–Amarillo Aug. 25,
2006) (mem. op., not designated for publication). Like this case, evidence there showed
a drug dog alerted on the vehicle in which the $6100 cash was found. Officers also
testified in that case, however, that the cash had a strong smell of marijuana. Evidence
of the defendant’s extraneous offenses for possession of drug paraphernalia, and of a
police contact during which methamphetamine residue was found in the defendant’s
vehicle, also was present. Granado, 2006 WL 2466972 at *1. The evidence presented in
Granado provided evidence of a nexus between the money and some criminal activity that
had previously taken place. See Deschenes v. State, __ S.W.3d __, No. 07-06-00420-CR,
2008 WL 1721545 (Tex.App.–Amarillo April 14, 2008) (not yet released for publication).
7
Here, evidence connecting the cash with the sale of controlled substances included
the trooper’s testimony that drug traffickers frequently travel I-40, that in his eight years as
a trooper he personally had seized over 5000 pounds of marijuana, fifty-two pounds of
cocaine and twenty-six pounds of “Ecstasy,” in addition to approximately $1.6 million, and
that a trafficking pattern exists on I-40, such that “[p]redominantly the narcotics is traveling
from the West Coat to the East Coast and the money is traveling from the East Coast back
to the West Coast.” He agreed with the District Attorney that “[s]o if somebody had picked
up narcotics on the West Coast, transported it back to the east and sold it, then they would
then take that money and transport the money back to the West Coast to pick up
more. . . .” The trooper testified also that the cash was packaged in bundles in a manner
similar to other cash he had seized. Evidence showed the cash was deposited promptly
after its seizure, without testing for drug residue. The record does not describe the
condition or the denominations of the currency. As noted, however, the trooper said the
cash was enough to buy a felony amount of marijuana or other controlled substance.
While the evidence shows appellant was transporting cash westbound on I-40 under
the general circumstances described by Trooper Ingle as common to drug trafficking, the
identification of appellant’s cash as drugs sales proceeds depends primarily on the
inferences that reasonably can be drawn from the drug dog’s alert. As noted, the evidence
is that the dog alerted on the right rear area of the vehicle. When the hatch of the PT
Cruiser was opened, the dog jumped into the cargo area on top of two pieces of luggage.
Trooper Ingle removed the two luggage pieces from the vehicle and set them on the
8
ground. Torres testified Carlos’s reaction to one of the bags constituted an alert.6 Ingle
opened the bag, revealing the two bundles of cash.
No testimony establishes that Carlos’s alert means he detected the odor of a
controlled substance about the bag.7 For purposes of our analysis, however, we will
assume the jury reasonably could infer that, because Carlos was trained to alert to drug
odors, and alerted, he detected the odor of a drug.8 And, without examining the
reasonableness of it on this record, we will assume for purposes of our analysis that the
jury reasonably could infer that a drug odor actually was present, that is, that Carlos was
correct.9
6
Testimony and the video show the dog bit the bag and dragged it briefly. Deputy
Torres testified that Carlos was trained to show an alert by scratching at the object of the
alert, and had never before bitten to indicate an alert. When asked if the bite was an alert,
he said, “To me it was. This is the first time that he had ever actually bitten anything looking
for his toy.” Torres explained that the dog’s toy was a short piece of plastic pipe the canine
expected to be given as a reward. While Torres’s testimony and the video do not inspire
great confidence, viewing the evidence in the light most favorable to the verdict, the jury
could have agreed the dog alerted on the bag.
7
Cf., e.g., State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991) (in forfeiture case,
dog handler testified that based on dog’s reaction, money had been in recent close
proximity to controlled substance).
8
Said another way, we will assume the jury reasonably could infer the dog alerted
to the bag in accordance with his training and not for some other reason. Cf., e.g.,
$11,014.00, 820 S.W.2d at 785 (handler testified dog would not alert on money absent an
odor from controlled substance).
9
Cf. Granado, 2006 WL 2466972 at *2 (drug dog alerted on trunk area of vehicle,
where cash was found, but two officers also testified cash had a strong smell of marijuana).
9
To conclude from the evidence that the cash in the bag was proceeds of the sale
of a controlled substance, however, the jury would have been required to draw further
inferences, beginning with an inference that the odor Carlos detected emanated from the
cash.10 No evidence supports such an inference. The video shows the bag contained
articles of clothing in addition to the two bundles of cash. On this record, the jury was
required to speculate whether Carlos detected a scent on the bag itself, the cash or
another of the bag’s contents. Further speculation then was required to reach the ultimate
conclusion that the cash was “acquired or derived directly or indirectly from, produced
through, or realized through” the sale of illicit drugs.
Unlike in Granado, nothing else connects appellant with the sale of marijuana or
another controlled substance.11 Even when cumulated with the evidence of the route
appellant and Roberts were traveling, their reactions and responses to the trooper’s
questions, appellant’s reluctance to admit to his possession of a large amount of cash, and
the other circumstances the State finds incriminating,12 we cannot agree that the drug dog’s
alert allowed the jury reasonably to infer appellant’s guilt of the charged offense beyond a
10
The evidence presented at trial would not permit an inference as to whether the
odor emanated from one bill or many among the $30,000.
11
See also Deschenes v. State, __ S.W.3d __, No. 07-06-00420-CR, 2008 WL
1721545 (Tex.App.–Amarillo April 14, 2008) (not yet released for publication) (surveying
case law in money laundering cases).
12
The State points, for example, to the “lived-in look” of the vehicle and the absence
of clothing appropriate for a funeral.
10
reasonable doubt.13 The only direct evidence of the source of the cash appellant carried
was that it came from the safe at his business in Detroit.14 The jury was free to disbelieve
that story, but it could not substitute a conclusion, unsupported by facts, that the cash
instead was derived from the sale of a controlled substance.15
We sustain appellant’s fifth issue. Finding it dispositive of the appeal, we do not
address his remaining issues. Tex. R. App. P. 47.1. Because we have found the evidence
supporting the judgment of the trial court to be legally insufficient, we reverse the judgment
and render a judgment of acquittal.
James T. Campbell
Justice
Publish.
13
See Hooper, 214 S.W.3d at 15-16 (civil law prohibition of “inference-stacking”
does not apply to sufficiency analysis in criminal cases, but each inference drawn must find
support in evidence).
14
Appellant did not testify. His wife testified the couple owned, through a
corporation, two pet stores in Detroit, Michigan. The defense introduced a federal
corporate income tax return for a corporation doing business as Discount Pet Supplies.
15
Trooper Ingle’s statement that the cash was enough to buy a felony amount of
marijuana or other controlled substance does not fill the evidentiary void. Even if the jury
could infer from the evidence that the cash was intended to be used to buy marijuana or
another controlled substance, that would not prove the cash was the proceeds of the sale
of a controlled substance, under the definition of proceeds in the money laundering statute.
See Tex. Penal Code Ann. § 34.01(4) (Vernon 2005). Cf. Tex. Code Crim. Proc. Ann. arts.
59.01(2)(B)(i), 59.02(a) (Vernon 2006-2007) (defining contraband subject to forfeiture to
include property “used or intended to be used” in commission of certain felonies).
11
|
188 Cal.App.4th 722 (2010)
115 Cal. Rptr. 3d 779
THE PEOPLE, Plaintiff and Respondent,
v.
JOE RODRIGUEZ, Jr., Defendant and Appellant.
No. C060227.
Court of Appeals of California, Third District.
September 20, 2010.
Certified for Partial Publication.[1]
*724 Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BLEASE, Acting P. J.
This case tenders the question whether the substantive criminal street gang offense, Penal Code section 186.22, subdivision (a), *725 which concerns the active participation of a person in the criminal activity of a gang, applies to an attempted robbery by a member of a criminal street gang acting alone.[2]
Section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act, also known as the "STEP Act." (§ 186.20.) Section 186.22 contains two relevant provisions, a substantive offense in subdivision (a), and a sentence enhancement in subdivision (b)(1). The two subdivisions are meant to do different work. As we shall explain, much of the confusion in the case law construing subdivision (a) arises from a failure to distinguish the subject matters of the two subdivisions. Not all gang conduct is covered by subdivision (a); what is not covered by subdivision (a) is generally covered by subdivision (b)(1).
The defendant was convicted by a jury of attempted second degree robbery (Pen. Code, §§ 211, 664; count I) and active participation in a criminal street gang (§ 186.22, subd. (a); count III). The jury found true an enhancement that he committed the attempted robbery for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)[3]
Subdivision (a) of section 186.22 provides that "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang" is guilty of a felony or misdemeanor.
Subdivision (b)(1) provides for the enhancement of a felony sentence when the offense benefits a criminal street gang and is intended to promote the criminal conduct of the gang. (§ 186.22, subd. (b)(1).) The trial court granted defendant's motion for a new trial of the enhancement for lack of supporting evidence. The court explained: "It's beyond a reasonable doubt that Mr. Rodriguez is a member of a gang, the Norteños; that he was active. There is no evidence beyond that to support the gang enhancement.... [¶] ... [W]e have no evidence that the area where the crime was committed had anything to do with gang territory, gang turf. There was speculation from the experts that maybe Mr. Rodriquez's tattoos at least, in part, may have been *726 visible, although the victim saw no tattoos. There was no gang language used during the attack. There were no gang signs. There is simply nothing beyond the fact that he is a gang member that would support that finding ...." (See In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [46 Cal.Rptr.3d 839].)[4]
On appeal defendant contends this evidentiary hiatus also required the trial court to dismiss his conviction of the substantive, section 186.22, subdivision (a), criminal street gang offense for lack of substantial supporting evidence. He argues that the evidence fails to show a violation of the third element of the offense, that he "willfully promote[d], further[ed], or assist[ed] in ... felonious criminal conduct by members of [his] gang." We agree.
It is not sufficient for conviction under subdivision (a) of section 186.22, that the defendant knowingly and actively participate in gang activities. The defendant must promote, further or aid in the commission of a separate felony offense "by members of that gang," i.e., the gang in which he is an active participant. (Italics added.) The leading case is People v. Castenada (2000) 23 Cal.4th 743 [97 Cal.Rptr.2d 906, 3 P.3d 278] (Castenada). The court said: "[S]ection 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members ...." (Id. at p. 749, italics added.) This includes, on the facts in Castenada, the perpetration of a felony in concert with other members of a gang. (Id. at p. 745.) Castenada precisely reads the grammar of section 186.22, subdivision (a). "[To] assist[] in any felonious criminal conduct by members of that gang" is to aid and abet its commission. It requires perforce that there be more than one participant.[5] The same is true of furthering or promoting criminal conduct by others. "[To] promote[ or] further[] ... felonious criminal conduct by members of [a] gang" requires that the perpetrator promote or further a "specific felony" (as Castenada says) of other members of the gang. It makes no sense to say that a person has promoted or furthered his own criminal conduct. The subdivision is not satisfied by an intention to promote, further or assist a gang in its primary activities, including the criminal offenses it customarily engages in. That is a matter that is covered by the enhancement provision of subdivision (b)(1) of section 186.22, as to which the trial court granted a new trial.
Subsequent Court of Appeal cases say or suggest that Castenada is not limited to concerted action by members of a gang in the commission of a separate felony, that subdivision (a) of section 186.22 also applies to the sole *727 perpetrator of an offense by a gang member without the criminal involvement of others who are gang members. (People v. Ngoun (2001) 88 Cal.App.4th 432 [105 Cal.Rptr.2d 837] (Ngoun); People v. Salcido (2007) 149 Cal.App.4th 356 [56 Cal.Rptr.3d 912] (Salcido).) Salcido reasons that in each of these two cases "`[t]he evidence supports a reasonable inference that the [crimes] were intended by appellant to promote, further and assist the gang in its primary activitiesthe commission of criminal acts and the maintenance of gang respect.'" (People v. Salcido (2007) 149 Cal.App.4th at p. 368, italics added.) A recent case, People v. Sanchez (2009) 179 Cal.App.4th 1297 [101 Cal.Rptr.3d 639], follows these cases.
In singling out the element of intention, a term that does not appear in subdivision (a) of section 186.22, Salcido not only departs from the language of subdivision (a), and Castenada's straightforward reading of it, but replaces the third element of subdivision (a) with the third element of subdivision (b) of section 186.22, the gang enhancement provision. The manifest difference is between aiding gang members in the commission of a separate crime and intending generally to aid the gang in its primary activities.
Castenada rejected Salcido's view. "As we have explained, section 186.22(a) imposes criminal liability not for lawful association, but only when a defendant `actively participates' in a criminal street gang while also aiding and abetting a felony offense committed by the gang's members." (Castaneda, supra, 23 Cal.4th at pp. 750-751.)
Since defendant was the sole perpetrator of an attempted robbery that did not involve felonious conduct by other persons, let alone members of the gang of which he was a member, we shall reverse the judgment of conviction for violation of section 186.22, subdivision (a). In all other respects we shall affirm the judgment.
FACTS
On May 10, 2007, defendant, who lived in Woodland, was in Marysville in Yuba County where his girlfriend lived. At approximately 10:23 p.m., Stanley Olsen stepped out of his truck and onto a Marysville street. A person behind him said something that he did not fully hear. Olsen turned and saw defendant, whom he did not recognize, coming up to him. Olsen asked defendant if he knew him; defendant responded with a racial epithet and a threat to kill Olsen. Defendant was wearing jeans and a T-shirt that covered his arms to five inches below the shoulder.
Olsen stood his ground while defendant approached him so that the two men's chests were touching. Defendant demanded money from Olsen and *728 threatened to beat him up. Olsen told defendant that he "didn't have time for this" and that defendant "needed to get away from" him. Defendant then punched Olsen in the jaw.
After being punched, Olsen "grappled" with defendant and they went to the ground with defendant on top. When Olsen tried to get up, defendant punched him in the head and back. Olsen received injuries above and below his right eye; below his left ear; and on his chin, left elbow, right hand, and left forearm.
Olsen got up, ran three or four steps, and turned to see if defendant was following, which he was not. Olsen told a friend to call the police.
A woman grabbed hold of defendant and pulled him into a nearby apartment where defendant's girlfriend lived. Officers arrived on the scene and were directed to where defendant had fled. The officers knocked on the door, announced their presence, and requested that the door be opened, but there was no response. Eventually the tenant, Serena Torres, defendant's girlfriend, contacted the officers and allowed them to search the apartment for defendant. Defendant's sister, Dena Rodriguez, who was present at the time in the apartment with her baby, told officers that defendant was in a locked bedroom and that he was the person they were looking for.
Officers found defendant hiding under the bed. He stated that he was sorry and that he had not wanted to be arrested because his parole agent had not authorized him to be in Marysville. At an ensuing field showup, Olsen identified, defendant as his attacker.
At the jail following his arrest, defendant was asked whether he would have any problems being housed with southern or Sureño inmates. Defendant replied that "there's a possibility there would be a problem." Defendant was asked whether he was a gang member, and he answered, "Yes, maybe a little bit."
Jail inmates are classified "to make sure that inmates are housed with ... like inmates, so there's no fighting and no problems." During this process defendant was asked if he was an active Norteño; he said, "Yes," and indicated that he was from Woodland. He also indicated that his rivals were "southerners." The classification officer noted that defendant had his surname and the words "northern warrior" tattooed on his back in red and black ink, which are colors used by Norteños.
Yuba County Sheriff's Sergeant Allan Garza was called as an expert on criminal street gangs. The jury was admonished that the facts to which he would testify would form a framework for his opinion and were not being admitted for their truth.
*729 Garza estimated that there were 150 to 200 Norteños in Yuba County. Robbery was a primary activity of Norteños in the Yuba County area. Garza testified that he had conducted a robbery investigation of Anthony Matta, who was a validated Norteño according to the Yuba City Police Department. In August 2007, Matta had been convicted of grand theft from the person of another (§ 487, subd. (c)) with a gang allegation (§ 186.22, subd. (b)(1)). Documents related to Matta's conviction were introduced into evidence.
Garza testified that defendant's tattoos included the letter "N" and the number "14" on his chest. Because N is the 14th letter of the alphabet, the letter and number are commonly associated with the Norteño gang. The tattooed words, "northern" on the back of the tricep area of defendant's upper left arm and "warrior," on the back of the tricep area of his upper right arm identify defendant as a warrior for the Norteño gang. Defendant's surname, Rodriguez, tattooed in red ink, was significant because Norteños have adopted red as their color. His tattoos of an Aztec warrior, skulls, and a helmet were significant because Norteño gang members have adopted the Aztec warrior as a symbol of their fierceness.
Garza testified, based upon a report by another officer and without conducting a background check on defendant, that during several police contacts in 1995 and 1999 (apparently in Yolo County), defendant admitted being a Norteño gang member and had been observed wearing gang colors and clothing and displaying gang hand signs.
Based on the foregoing facts, Garza opined that defendant was an active Norteño gang member. Based on a hypothetical question reflecting the facts of the case, as well as his opinion that some portion of defendant's tattoos would be visible if he were wearing a T-shirt, Garza opined that the attempted robbery of Olsen was committed for the benefit of the Norteño gang. There was no testimony that the victim of the attempted robbery saw the tattoos on the backs of defendant's arms. Garza opined that the crime benefited the gang because it proved to fellow gang members that defendant was willing to commit crimes for the gang; the crime instilled fear of the gang in the general citizenry, which made victims and witnesses afraid to testify against the gang; and this made it easier for gang members to commit and get away with crimes.[6] However, Garza had not conducted a background check of defendant and did not know whether he belonged to a subset of the Norteños in "the Yuba-Sutter area ...."
Marysville Police Sergeant Christian Sachs testified in the manner of an expert on criminal street gangs. The jury was admonished that the facts to *730 which he would testify would form a framework for his opinion and were not being admitted for their truth. Sachs testified that members of the Norteño gang associate themselves with the colors red and black; wear red shoelaces and other red clothes; have gang tattoos; associate themselves with the number 14 because "N" is the 14th letter of the alphabet; may have one dot tattooed on one hand and four dots on the other, symbolizing the number 14; and may have certain unique hairstyles.
Sachs testified that there were more than three Norteños in the area and that robbery is a primary activity of the gang. Sachs investigated an attempted homicide case in Marysville in which three Norteño gang membersJohn Damian Williams, Steven Joseph Echevarria, and Alfredo Dominguezstabbed someone who had made fun of their haircuts and was believed to be a member of a rival gang. The men were convicted and admitted an allegation that the crime was committed for the benefit of a criminal street gang. Documents related to the three gang members' convictions were introduced into evidence.
Sachs testified that he reviewed Woodland, Yolo County, police records from 1995 through 1999 that documented defendant's membership in the Norteño gang in that area, his admission of membership, and his having been seen in the company of other gang members. Sachs opined that, based on defendant's tattoos, his self-admission during a booking and classification process in Woodland, his red shoelaces, his red cigarette lighter, and the contents of the Woodland Police records, defendant was an active member of the Norteño gang.
Based on a hypothetical question Sachs opined that the present crime was committed for the benefit of a criminal street gang. The crime benefited the gang because it served to intimidate the public; made the public afraid of the gang and created the fear of retribution should anyone cross the gang; and served to intimidate actual and potential witnesses of crimes committed by the gang, thus causing witnesses to not come forward or cooperate with law enforcement.
DISCUSSION
I
Forfeiture[*]
*731 II
The Gang Participation Offense
Defendant contends the trial court should have dismissed his conviction of the substantive gang offense defined by section 186.22, subdivision (a), for insufficiency of the evidence to show that he participated in a felony with other gang members. He reasons that the evidence the trial court found insufficient in granting a new trial of the sentence enhancement (§ 186.22, subd. (b)(1)), the lack of substantial evidence connecting the offense to the gang, also is insufficient to sustain a conviction of the substantive gang offense (§ 186.22, subd. (a)). Resolution of the issue turns on the facts of the case and on a comparison of subdivision (a) with subdivision (b)(1).
We shall conclude that, although the subdivisions describe different aspects of gang involvement, the evidence that the trial court found was insufficient to support the gang enhancement is also insufficient to support the substantive gang participation offense.
A.
The Trial Court's Findings
After the jury found defendant committed an attempted robbery for the benefit of his gang (§ 186.22, subd. (b)(1)), the trial court dismissed the enhancement allegation for insufficient evidence.
In doing so, the court explained: "The Court's convinced there is insufficient evidence for that finding to stand. It's beyond a reasonable doubt that Mr. Rodriguez is a member of a gang, the Norteños; that he was active. There is no evidence beyond that to support the gang enhancement. There's nothing about the crime that connects it to the activities of the gang other than the expert's statement that robbery is one of the crimes Norteños commit. The cases that I've read say there's got to be something more than gang membership and/or association.
"In this case, we have no evidence that the area where the crime was committed had anything to do with gang territory, gang turf. There was speculation from the experts that maybe Mr. Rodriquez's tattoos at least, in part, may have been visible, although the victim saw no tattoos.[8] There was *732 no gang language used during the attack. There were no gang signs. There is simply nothing beyond the fact that he is a gang member that would support that finding, and the Court will, in fact, grant the Defendant's motion for a new trial as to the gang enhancement."
The testimony showed that defendant had been a member of a Norteño gang in Woodland, Yolo County, and that his girlfriend lived in Marysville near where the attempted robbery occurred. The officers' testimony addressed the subject of gang activity in the area of Marysville and assumed that the Norteño gang in Marysville was connected with the Norteño gang in Woodland. They offered no testimony that the Yolo County Norteños were a subset of the Yuba County Norteños.
The trial court found that the only connection between the attempted robbery and a criminal street gang was defendant's active participation in the Norteños in Woodland, Yolo County. No evidence was tendered that defendant was involved with Norteños in Yuba County. As noted, the trial court said "we have no evidence that the area where the crime was committed had anything to do with gang territory, gang turf."
B.
Penal Code Section 186.22, Subdivision (a)
The STEP Act, in section 186.22, contains two relevant provisions, a substantive offense in subdivision (a), and a sentence enhancement in subdivision (b)(1). Since the precise language of each is important for the resolution of the substantial evidence issue, we quote them in full.
Subdivision (a)(1) of section 186.22 states in pertinent part: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang" shall be punished as a felony or misdemeanor.
Subdivision (b)(1) of section 186.22 provides, with exceptions not relevant here, that "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall" be punished by an enhanced penalty consecutive to the punishment for the felony.
*733 (1) The subdivisions define different aspects of criminal gang involvement. The substantive offense defined in section 186.22, subdivision (a) has three elements. "[(1)] Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive .... [(2)] `[K]nowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,' and [(3)] ... that the person `willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22(a).)" (People v. Lamas (2007) 42 Cal.4th 516, 523 [67 Cal.Rptr.3d 179, 169 P.3d 102].) The enhancement provision, section 186.22, subdivision (b)(1), also has three elements. With exceptions not relevant here, it requires (1) conviction of a predicate felony, (2) committed for the benefit of, at the direction of, or in association with a criminal street gang, and (3) with the specific intent to promote, further or assist in any criminal conduct by criminal street gang members. (§ 186.22, subd. (b)(1).)
The purpose of the enhancement is to enhance the sentence of a predicate felony that was committed both to benefit a criminal street gang and with the intent to promote, further or assist any criminal conduct by its members. By contrast, the substantive offense defined by subdivision (a) requires that the defendant promote, further or assist separate "felonious criminal conduct by members of that gang," the gang in which the defendant is an active participant. (§ 186.22, subd. (a), italics added.) The operative distinction is the difference between the aiding and abetting of felonious conduct by gang members and the intention to do so.
(2) The leading case is Castenada. At issue was the meaning of the phrase "actively participates" in section 186.22, subdivision (a). The court said the Legislature in adopting the legislation was cognizant of the holding in Scales v. United States (1961) 367 U.S. 203 [96 L.Ed.2d 782, 81 S.Ct. 146], "that `mere association with a group cannot be punished unless there is proof that the defendant knows of and intends to further its illegal aims.' "(Castenada, supra, 23 Cal.4th at p. 749.) "This explains [said the court] why the Legislature expressly required in section 186.22(a) that a defendant not only `actively participates' in a criminal street gang ..., but also that the defendant does so with `knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,' and that the defendant `willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' These statutory elements necessary to prove a violation of section 186.22(a) exceed the due process requirement of personal guilt that the United States Supreme Court articulated in Scales .... [¶] ... Here, section 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members, as the Court of Appeal in [People v.] Green [(1991)] 227 *734 Cal.App.3d 692, 703-704 [278 Cal.Rptr. 140], acknowledged." (Castenada, supra, 23 Cal.4th at p. 749.)
This definition was embodied in CALJIC former No. 6.50 (6th ed. 1996), and CALCRIM No. 1400. "To prove that the defendant willfully assisted, furthered, or promoted a crime, the People must prove [inter alia] that: ... [¶] 4. The defendant's words or conduct did in fact aid and abet the commission of the crime." (CALCRIM No. 1400.)
In the year following Castenada, Ngoun, supra, 88 Cal.App.4th 432, reasoned that it would be inconsistent with the objective and intent of section 186.22, subdivision (a) to restrict its language to aiders and abettors and not extend it to perpetrators. The court said: "Under the language of subdivision (a), liability attaches to a gang member who `willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22, subd. (a).) In common usage, `promote' means to contribute to the progress or growth of; `further' means to help the progress of; and `assist' means to give aid or support. (Webster's New College Dict. (1995) pp. 885, 454, 68.) The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense `contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (Ngoun, supra, 88 Cal.App.4th at p. 436.)[9]
(3) What Ngoun wholly misses is the grammar of the statute. The terms "promote[], further[], or assist[]" modify the phrase "felonious criminal conduct by members of that gang," which Castenada says refers to "a specific felony committed by gang members ...." (Castenada, supra, 23 Cal.4th at p. 749, italics added.) The reference to "by members of that gang," does not refer to the kinds of offenses which the gang may customarily commit. Thus, to assist in the commission of an offense, i.e., to aid and abet its commission, requires perforce that there be more than one participant. The same is true of *735 promoting or furthering the criminal conduct of others.[10] It makes no sense to say that a person has promoted or furthered his own criminal conduct.
(4) We do agree, however, that perpetrators may come within the language of section 186.22, subdivision (a). Perpetrators and aiders and abettors are both principals in the commission of a crime and it may be difficult or unnecessary to assign a particular role to the participants in collective criminal conduct. "[T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1120 [108 Cal.Rptr.2d 188, 24 P.3d 1210].)
Castenada does not rule out perpetrators who act in criminal concert with other gang members, as shown by the facts of the case. It described the defendant's offense as follows: "On the evening of October 16, 1995, Juan Venegas and Pimienta Castillo left a Pizza Loca restaurant in Santa Ana and were walking on nearby Sullivan Street when defendant and two companions[11] began to follow them. Defendant pointed a handgun at Venegas and demanded money, while one of his companions made a similar demand of Castillo. Both victims said they had no money. Defendant then took Venegas's watch and tried to pull a gold chain off his neck. When Venegas broke away and screamed for help, defendant and his companions fled." (Castenada, supra, 23 Cal.4th at p. 745.) The Ngoun facts are similar. The defendant, an active gang member, went armed with other gang members to a party where rival gang members would be and fired into a crowd that included the rivals after asking a fellow gang member to "`watch his back.' "(Ngoun, supra, 88 Cal.App.4th at p. 437.)
Subsequently, People v. Salcido, read Ngoun to eliminate participation by members of a gang in the defendant's criminal conduct as an element of the offense. "[I]f the evidence proved any criminal conduct by Salcido, it was *736 only as the perpetrator of the crimes establishing the felonious criminal conduct with which he was charged. This conduct included illegal possession of a weapon, receiving stolen property, carrying a loaded firearm in a vehicle, or carrying a concealed firearm in a vehicle." (Salcido, supra, 149 Cal.App.4th at p. 369.) Although "Salcido was accompanied by known gang members ... there was no evidence they participated in Salcido's crimes." (Id. at p. 368.) The court then quoted from Ngoun: "[H]owever, `[t]he evidence supports a reasonable inference that the [crimes] were intended by [the defendant] to promote, further and assist the gang in its primary activitiesthe commission of criminal acts and the maintenance of gang respect.'" (Ibid., italics added.)
In so doing Salcido replaced the third element of subdivision (a) of section 186.22, with the third element of subdivision (b)(1) of section 186.22. The manifest difference is that subdivision (a) requires that the defendant actually participate as a principal in the felonious conduct of members of a gang, while subdivision (b)(1) requires that the defendant generally intend to promote "any criminal conduct by gang members ...."
Salcido chose to not follow Castenada's construction of section 186.22, subdivision (a) that "a person liable under section 186.22(a) must aid and abet a separate felony offense committed by gang members" (Castaneda, supra, 23 Cal.4th at p. 750) essentially because it exceeds the due process requirement of personal guilt articulated in Scales. The court said: "On its own, the statement arguably supports Salcido's position [that the section does not apply to an offense wholly committed by the defendant]. When read in context, however, it is part of the Supreme Court's explanation that section 186.22, subdivision (a), avoids punishing mere association with a disfavored organization and satisfies the due process requirement of personal guilt ...." (Salcido, supra, 149 Cal.App.4th at p. 367, italics added.)
Salcido and Ngoun were followed by People v. Sanchez, supra, 179 Cal.App.4th 1297, in rejecting the view that section 186.22, subdivision (a)" `imposes liability on perpetrators only if they commit the crime in concert with other gang members.'" (179 Cal.App.4th at p. 1308.) Sanchez, like Salcido and Ngoun, does not parse the applicable language of section 186.22, subdivision (a).
Salcido does not explain why it can ignore a Supreme Court construction of a statute merely because it sets a standard in excess of that required by the United States Constitution. Nor does it explain how it equates the third elements of subdivisions (a) and (b)(1) of section 186.22 by equating the actual participation in criminal conduct with the intention to do so. Lastly, although construing the terms "promote[]," "further[]" and "assist[]," it does not explain how the promotion of a separate crime is consistent with its view that no separate crime need be committed.
*737 (5) For these reasons we follow the explicit language of section 186.22, subdivision (a) and Castenada's straightforward construction of it. Since defendant was the sole perpetrator of an attempted robbery that did not involve felonious conduct by other persons, let alone members of the gang of which he was a member, we shall reverse the judgment of conviction for violation of section 186.22, subdivision (a).
III-V[*]
DISPOSITION
The judgment of conviction of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count III) is reversed. In all other respects the judgment is affirmed.
Butz, J., concurred.
SIMS, J., Concurring and Dissenting.
I concur in parts I, III and IV of the majority opinion.
I respectfully dissent from the analysis and conclusion of part II. In my view, substantial evidence supports defendant's conviction for active participation in a criminal street gang, a violation of Penal Code section 186.22, subdivision (a).[1]
In my opinion, two cases decided by the Court of Appeal for the Fifth Appellate DistrictPeople v. Ngoun (2001) 88 Cal.App.4th 432 [105 Cal.Rptr.2d 837] (Ngoun) and People v. Salcido (2007) 149 Cal.App.4th 356 [56 Cal.Rptr.3d 912] (Salcido)are both correctly decided. These cases have been recently followed by Division Two of the Fourth Appellate District in People v. Sanchez (2009) 179 Cal.App.4th 1297, 1307-1308 [101 Cal.Rptr.3d 639]. I would follow Ngoun and Salcido here.
In Ngoun, the court held "that Penal Code section 186.22 applies to the perpetrator, as well as to aiders and abettors, of criminal gang felonies." (Ngoun, supra, 88 Cal.App.4th at p. 434.)
In Salcido, the Court of Appeal approved the following jury instruction on section 186.22(a) given by the trial court: "`To prove that the defendant is *738 guilty of this crime[,] the People must prove that, one, the defendant actively participated in a criminal street gang. Two, when the defendant participated in the gang[,] he knew that members of the gang engaged in or have engaged in a pattern of criminal gang activity. [¶] And, three, the defendant willfully promoted, furthered or assisted by either directly and actively committing a felony offense or aiding and abetting felonious criminal conduct by members of that gang.'" (Salcido, supra, 149 Cal.App.4th at pp. 365-366, 369.)
Section 186.22(a) and (b), provide, as pertinent, as follows:
"(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.
"(b)(1) ... any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished ...."
On this record, there is no dispute that substantial evidence supports the conclusion defendant actively participated in a criminal street gang (the Norteños) with knowledge that its members engage in a pattern of criminal gang activity.
At issue is section 186.22(a)'s requirement that a violation occurs when one "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang ...." (Italics added.)
"Contrary to what is required for an enhancement under section 186.22(b), section 186.22(a) does not require that the crime be for the benefit of the gang. Rather, it `punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.' (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467 [83 Cal.Rptr.2d 307], fns. omitted.)" (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334 [70 Cal.Rptr.3d 680].)
Both Ngoun, supra, 88 Cal.App.4th at page 436 and Salcido, supra, 149 Cal.App.4th at page 368, concluded that the actual perpetrator of an offense *739 can violate section 186.22(a). Ngoun reasoned, "An active gang member who directly perpetrates a gang-related offense `contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct." (Ngoun, supra, 88 Cal.App.4th at p. 436.) This rings true to me, as it did with the Salcido court. (Salcido, supra, 149 Cal.App.4th at p. 367.) The majority "agree ... that perpetrators may come within the language of section 186.22, subdivision (a)." (Maj. opn., ante, at p. 735.)
It appears that the real sticking point between the majority and Salcido is the majority's view that section 186.22(a) requires that the perpetrator act in concert with other gang members. The majority give the following statutory language in section 186.22(a) its strict literal interpretation: "promotes, furthers, or assists in any felonious criminal conduct by members of that gang ...." (Italics added.)
In this case, only one member of the gangdefendantwas promoting the felonious criminal conduct by himself committing an attempted robbery.
I would not insist that "members" be given its literal, plural meaning.
Section 7 provides in pertinent part, "Words used in [the Penal Code] in the present tense include the future as well as the present ... the singular number includes the plural, and the plural the singular ...." Subdivision 16 of section 7 further counsels that "Words and phrases must be construed according to the context ...." By these rules, "members" can mean "member." It should.
Section 186.22(a) is a part of the California Street Terrorism Enforcement and Prevention Act. (§ 186.20 et seq.)
Section 186.21 of that Act provides in pertinent part: "The Legislature ... finds that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected. The Legislature finds that there are nearly 600 criminal street gangs operating in California, and that the number of gang-related murders is increasing. The Legislature also finds that in Los Angeles County alone there were 328 gang-related murders in 1986, and that gang homicides in 1987 have increased 80 percent over 1986. It is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs."
*740 "Faced with the words the legislators chose [in section 186.22(a)], we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (Ngoun, supra, 88 Cal.App.4th at p. 436.)
By insisting on the literal, plural definition of "members," the majority would preclude a conviction for active participation in a criminal street gang (§ 186.22(a)) where the leader of the Norteños, acting entirely alone, got into his car and drove into Sureño territory, shot and killed several Sureños, and pinned notes to their shirts reading, "Norteños Rule."
In light of the purposes of the California Street Terrorism Enforcement and Prevention Act, quoted above, I cannot believe the Legislature intended such an absurd result. "`We must ... give the [statutory] provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. [Citation.]'" (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744 [110 Cal.Rptr.2d 828, 28 P.3d 876], quoting Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 55 [88 Cal.Rptr.2d 891].)
The majority argue that the grammar of section 186.22(a) requires that the perpetrator must aid others. At issue is the requirement that, in order to violate section 182.22(a), a person "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang ...."
The majority argue: "[To] `assist[] in any felonious criminal conduct by members of that gang' is to aid and abet its commission. It requires perforce that there be more than one participant. The same is true of furthering or promoting criminal conduct by others." (Maj. opn., ante, at p. 726, fn. omitted.)
The majority are right about the meaning of the word "assists." Someone does not "assist" himself.
But the majority are wrong about the meaning of the words "promotes [or] furthers ... in any felonious criminal conduct." Someone can "promote" or "further" felonious criminal conduct by committing the offense himself, without the participation or aid of others. Thus, Ngoun explains: "Given the objective and intent of subdivision (a), we find good reasons not to construe section 186.22[(a)], in the restricted manner advocated by appellant and instead to conclude that this subdivision applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor. Courts *741 should give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute. [Citations.] Under the language of subdivision (a), liability attaches to a gang member who `willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22[(a)].) In common usage, `promote' means to contribute to the progress or growth of; `further' means to help the progress of; and `assist' means to give aid or support. (Webster's New College Dict. (1995) pp. 885, 454, 68.) The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense `contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct." (Ngoun, supra, 88 Cal.App.4th at p. 436.)
The grammar of section 186.22(a) does not preclude giving the term "members" a singular construction in accordance with the rule of section 7.
The majority argue that their construction of the statute is compelled by the opinion of our Supreme Court in People v. Castenada (2000) 23 Cal.4th 743 [97 Cal.Rptr.2d 906, 3 P.3d 278]. (Maj. opn., ante, at p. 735.) However, the court in People v. Sanchez, supra, 179 Cal.App.4th 1297, correctly pointed out that Castenada was not called upon to decide whether section 186.22(a), requires a defendant to aid and abet other gang members or act in concert with them:
"[In Castenada] in addition to gang participation, the defendant was convicted of robbery and attempted robbery. (People v. Castenada, supra, 23 Cal.4th at pp. 745-746.) Victims Venegas and Castillo had been walking down the street together `when defendant and two companions began to follow them. Defendant pointed a handgun at Venegas and demanded money, while one of his companions made a similar demand of Castillo. Both victims said they had no money. Defendant then took Venegas's watch and tried to pull a gold chain off his neck. When Venegas broke away and screamed for help, defendant and his companions fled.' (Id. at p. 745.) Thus, the defendant was the direct perpetrator of the robbery of Venegas; however, he was arguably only an aider and abettor of the attempted robbery of Castillo. To put it another way, there was substantial evidence that the defendant had aided and abetted a felony.
"In any event, as the court noted later in Castenada, there the defendant `d[id] not contest ... that through the robbery and attempted robbery ..., he "promote[d], further[ed], or assist[ed]" felonious criminal conduct of [a] gang in violation of ... section 186.22(a).' (People v. Castenada, supra, 23 Cal.4th at p. 753.) Hence, as the Ngoun court noted, in Castenada itself, the Supreme *742 Court was not actually called upon to decide whether evidence that the defendant perpetrated a felony could be sufficient to satisfy the promote/further/assist element.
"For precisely that reason, however, the language in Castenada equating the promote/further/assist element to aiding and abetting was dictum. On the other hand, the reasoning of Ngoun, which was not dictum, is compellinga gang member who perpetrates a felony by definition also promotes and furthers that same felony. Thus, we do not believe that Castenada required the Ngoun court to come to any different conclusion." (People v. Sanchez, supra, 179 Cal.App.4th at pp. 1306-1307, italics omitted.)
People v. Castenada, supra, 23 Cal.4th 743, does not compel the result reached by the majority.
I would affirm defendant's conviction for violation of section 186.22(a). (Salcido, supra, 149 Cal.App.4th at p. 367.)
NOTES
[1] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I and III through V of the Discussion.
[2] Undesignated statutory references are to the Penal Code.
[3] On the prosecutor's motion, the trial court dismissed a count of assault with a deadly weapon. (§ 245, subd. (a); count II.) The trial court found that defendant had suffered a prior robbery strike conviction (§§ 667, subds. (b)-(i), 1170.12), and had served a prior prison term for a controlled substance conviction. (§ 667.5, subd. (b).)
Defendant was sentenced to state prison for eight years four months, consisting of six years (double the upper term) for the attempted robbery, 16 months (two-thirds the middle term) for the street gang offense, and one year for the prior prison term.
[4] The Attorney General does not challenge the trial court's granting of a new trial on the issue of the gang enhancement. (§ 186.22, subd. (b)(1).)
[5] The Attorney General conceded as much at oral argument.
[6] A gang expert "may not testify that an individual had specific knowledge or possessed a specific intent." (People v. Garcia (2007) 153 Cal.App.4th 1499, 1513 [64 Cal.Rptr.3d 104].)
[*] See footnote, ante, page 722.
[8] As noted, the only visible gang signs on defendant's arms below his T-shirt were on the backs of his triceps. The hypothetical from which Sergeant Sachs opined that the present crime was committed for the benefit of a criminal street gang was premised on the assumption that the T-shirt defendant was wearing during the attack allowed the display of some portion of his gang tattoos. There was no testimony that the victim of the attack saw the tattoos or any gang symbols.
[9] For these reasons the Ngoun court held it a misconstruction of Castenada to limit the language of section 186.22, subdivision (a) to aiders and abettors and suggested that the CALJIC committee revise the instruction. (Ngoun, supra, 88 Cal.App.4th at p. 437.) Subsequently, CALCRIM No. 1400 (rev. ed. Dec. 2008) was amended to add perpetrators to the instruction, to wit: "3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] a. directly and actively committing a felony offense; OR [¶] b. aiding and abetting a felony offense." (Italics added.) However, in so doing CALCRIM No. 1400 blurred the express requirement that the offense involve the concerted action of others who are gang members.
[10] Our dissenting colleague fears the consequences of this construction. He advances an in terrorum example. He says: "the majority would preclude a conviction for active participation in a criminal street gang [(§ 186.22, subd. (a))] where the leader of the Norteños, acting entirely alone, got into his car and drove into Sureno territory, shot and killed several Surenos, and pinned notes to their shirts reading, `Norteños Rule.'" (Conc. & dis. opn., post, at p. 740.)
Our colleague fails to note that section 186.22, subdivision (a) is not the sole gang provision at issue, this conduct would require a penalty enhancement pursuant to section 186.22, subdivision (b)(1) that is far greater than the penalty for violation of subdivision (a), a matter as to which the trial court has granted a new trial.
[11] Elsewhere described as gang members. (Castenada, supra, 23 Cal.4th at p. 753.)
[*] See footnote, ante, page 722.
[1] Undesignated statutory references are to the Penal Code. Subdivisions (a) and (b) of section 186.22 are referred to as section 186.22(a) and 186.22(b).
|
262 F.2d 859
UNITED STATES of America, Appellee,v.SCHUPPER MOTOR LINES, INC., and Sidney S. Schupper, Defendants-Appellants.
No. 201.
Docket 25283.
United States Court of Appeals Second Circuit.
Argued December 9, 1958.
Decided January 28, 1959.
Harold Harper, of Harper & Matthews, New York City (Ben A. Matthews, of Harper & Matthews, and Samuel Newfield, New York City, on the brief), for defendants-appellants.
Donald H. Shaw, Asst. U. S. Atty., S. D. N. Y., New York City (Arthur H. Christy, U. S. Atty., and George I. Gordon, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.
CLARK, Chief Judge.
1
Schupper Motor Lines, Inc., and Sidney S. Schupper, its president, appeal from judgments of conviction entered after a trial before Judge Dimock, a jury having been waived. Appellant corporation was convicted on sixty-one counts charging violations of 49 U.S.C. § 317(b), which prohibits a carrier from charging or receiving greater or less compensation "for transportation or for any service in connection therewith" than that specified in its filed tariffs. Schupper was convicted of aiding and abetting these violations.
2
The case arises out of appellants' transportation in early June 1952 of sixty-one truckloads of perishable biscuits from the strikebound Long Island plant of Sunshine Biscuits, Inc., to Baltimore, Maryland. After pickets had blocked several attempts of Sunshine to remove its biscuit stock from the plant, an executive of that company approached appellant Schupper. Schupper offered to move the goods for $1,000 cash per shipment over and above the tariff rate; and on June 9, 10, 11, and 12, although some violence and damage to equipment occurred, appellants transported all of the goods out of the plant and to an agreed destination in Baltimore. As the information against appellants was filed July 12, 1957, only Sunshine's final payment of $1919.49, received by the carrier on July 16, 1952, is within the applicable statute of limitations. 18 U.S.C. § 3282. This payment was shown, however, by the introduction into evidence of the carrier's office copy of a freight bill charging Sunshine $1919.49 for "extra services & costs in connection with transporting 61 loads" during the strike, to relate to all sixty-one shipments. And there is no dispute on this appeal that the total sum received by the carrier on each shipment is far in excess of the filed rates.
3
Appellants' first contention is that, while the letter of the statute under which they were convicted may cover their conduct, it was not its purpose to extend to such incidents. Admittedly, the Interstate Commerce Act was aimed primarily at protecting shippers from discriminations in rates. But 49 U.S.C. § 317(b) is specific in its prohibition of a "greater" as well as "less or different" charge, and thus supplements specific remedies for overcharges as well. 49 U. S.C. § 304a; cf. 49 U.S.C. §§ 16(3), 908, 1006a. "The act made it the duty of carriers subject to its provisions to charge only just and reasonable rates." Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 27 S.Ct. 350, 354, 51 L.Ed. 553. Accordingly, proof of actual discrimination is not necessary in actions under the section. Cf. Armour & Co. v. Atchison, T. & S. F. Ry. Co., 7 Cir., 254 F.2d 719, certiorari denied Atchison, T. & S. F. Ry. Co. v. Armour & Co., 358 U.S. 840, 78 S.Ct. 63, 3 L.Ed.2d 75; I. C. C. v. North Pier Terminal Co., 7 Cir., 164 F.2d 640, certiorari denied North Pier Terminal Co. v. I. C. C., 334 U.S. 815, 68 S.Ct. 1071, 92 L.Ed. 1746.
4
Appellants further contend that the district court erred in treating each truckload as a separate offense. Section 317(b), 49 U.S.C., deals with the demand or receipt by a carrier of a sum at variance with its tariff as compensation for transportation or service in connection therewith. The unit of offense under the section is not each payment or each vehicle; its scope is coextensive with the transaction that the illegal charge consummates. Cf. Standard Oil Co. of Indiana v. United States, 7 Cir., 164 F. 376, certiorari denied United States v. Standard Oil Co., 212 U.S. 579, 29 S.Ct. 689, 53 L.Ed. 659; United States v. Standard Oil Co. of New York, D.C.W.D. N.Y., 192 F. 438; and United States v. Vacuum Oil Co., D.C.W.D.N.Y., 158 F. 536, affirmed Standard Oil Co. of New York v. United States, 2 Cir., 179 F. 614, certiorari denied 218 U.S. 681, 31 S.Ct. 229, 54 L.Ed. 1207, interpreting the similar Elkins Act, 49 U.S.C. § 41(1). Here, to support the district court's general finding of appellants' guilt on sixty-one counts there is ample evidence that the parties treated each truckload as a separate transaction. Although all sixty-one shipments were pursuant to a single agreement between Schupper and Sunshine, the agreed price related specifically to each truckload, and separate documents were made for each.
5
Appellants' remaining claims of error are without merit. Their objection below to the receipt in evidence of the carrier's office copy of a freight bill charging Sunshine $1919.49 for "extra services & costs in connection with transporting 61 loads from your plant during the strike" was solely on the ground that the bill had not been sent out. Hence they will not be heard now as to other grounds, doubtless correctible on adequate warning, that they were improperly received as an extrajudicial admission and as a regular business entry. United States v. Sansone, 2 Cir., 231 F. 2d 887, 891, certiorari denied Sansone v. United States, 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500; 1 Wigmore, Evidence 339-340 (3d Ed. 1940). The "Impracticability of Operation" clause of the carrier's tariff1 gave the carrier only a right to refuse to enter the strikebound plant, not a right to declare such transportation an operation separate from the remainder of the journey and thus outside the rate restrictions included in the tariff. Moreover, Judge Dimock disbelieved the testimony that an attempt was made to divide the transportations into two segments. And the information's charge that appellants departed from the "tariffs of said carrier on file with the Interstate Commerce Commission" adequately states the interstate character of the transportation involved in the illegal transaction.
6
Affirmed.
Notes:
1
"Where strikes, picketing, riots or other labor disturbances * * * make it impracticable, unsafe or impossible to render collection or delivery service, such service will not be given."
|
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2812
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Alvin Bernell Moore, *
* [TO BE PUBLISHED]
Defendant - Appellant. *
___________
Submitted: May 15, 2009
Filed: September 11, 2009
___________
Before LOKEN, Chief Judge, EBEL* and CLEVENGER,** Circuit Judges.
___________
PER CURIAM.
Alvin Moore pleaded guilty to conspiracy to obtain money and property by
fraud in violation of 18 U.S.C. § 371 and aggravated identity theft in violation of 18
U.S.C. § 1028A. Due to a four-offense-level increase because he caused fraud loss
of approximately $21,000, and his astonishing thirty-four criminal history points, the
*
The HONORABLE DAVID M. EBEL, United States Circuit Judge for the
United States Court of Appeals for the Tenth Circuit, sitting by designation.
**
The HONORABLE RAYMOND C. CLEVENGER, III, United States Circuit
Judge for the United States Court of Appeals for the Federal Circuit, sitting by
designation.
parties agreed that Moore’s advisory guidelines range for the conspiracy count was
18 to 24 months. The aggravated identity theft count required a mandatory two-year
consecutive sentence, resulting in a cumulative advisory range of 42 to 48 months in
prison, which Moore concedes was correctly determined. The government filed a
substantial assistance motion under 18 U.S.C. § 3553(e), relating to the mandatory
two-year sentence, and U.S.S.G. § 5K1.1, relating to the conspiracy count. The
government recommended a downward departure to a sentence of 14 months for the
conspiracy count plus 20 months for the aggravated identity theft count. The district
court1 granted the substantial assistance motion and sentenced Moore to 12 months
on the conspiracy count and 18 months on the aggravated identity theft count, for a
total of 30 months in prison. Moore appeals the sentence. We affirm.
On appeal, Moore argues that a further downward departure was warranted (i)
to avoid unwarranted sentencing disparity with five of his ten conspirators who
received sentences of no prison term or time served, and (ii) to adequately consider
his post-offense conduct and rehabilitation. These contentions overlook the limited
nature of our appellate review of sentences under Gall v. United States, 128 S. Ct.
586, 597 (2007). First, the district court could only consider the value of Moore’s
substantial assistance in reducing his mandatory two-year sentence for aggravated
identity theft based on the government’s § 3553(e) motion. See United States v.
Burns, No. 04-2901, 2009 WL 2525585, at *6 (8th Cir. Aug. 20, 2009) (en banc). As
Moore does not challenge the district court’s evaluation of his substantial assistance
on appeal, the court’s 18-month consecutive sentence for the aggravated identity theft
count must be affirmed.
Second, the district court’s downward departure on the conspiracy count, based
on the government’s § 5K1.1 substantial assistance motion, likewise “can be based
1
The HONORABLE PAUL A. MAGNUSON, United States District Judge for
the District of Minnesota.
-2-
only on assistance-related considerations.” United States v. Plaza, 471 F.3d 928, 930
(8th Cir. 2006) (quotation omitted). Having granted an assistance-based departure,
the court had authority to grant an additional downward departure under Part 5K2 of
the advisory guidelines. But Moore did not file a motion for such a departure nor
request a departure orally at the sentencing hearing. Thus, even if an incorrect
application of the Guidelines’ departure provisions can be a procedural error under
Gall, 128 S. Ct. at 597, the district court committed no such error here. It properly
applied § 5K1.1, the only departure provision at issue.
The district court also had authority under Gall to vary downward from the
advisory guidelines range for the conspiracy count, as adjusted by the § 5K1.1
departure. We review the resulting sentence, with or without such a variance, for
substantive reasonableness. But here, Moore does not argue that his 12-month
sentence on this count was substantively unreasonable, so the sentence must be
affirmed. Moreover, we note (i) that Moore made no showing that he was similarly
situated for sentencing purposes to the five other conspirators, see United States v.
Watson, 480 F.3d 1175, 1178 (8th Cir. ) (sentence disparity resulting from legitimate
distinctions is not unreasonable), cert. denied, 128 S. Ct. 305 (2007),2 and (ii) where
a district court has sentenced a defendant below the advisory guidelines range, “it is
nearly inconceivable that the court abused its discretion in not varying downward still
further,” United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009).
The judgment of the district court is affirmed.
______________________________
2
The limited comparative record suggests that Moore’s extensive criminal
history was far worse than conspirators who did not receive prison terms, and that he
played a more significant role in the conspiracy. The same district judge sentenced
all the conspirators and was in the best position to weigh relative disparities.
-3-
|
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00623-CV
Rick C. Magana, Appellant
v.
Tiffany Sims, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-FM-04-007702, HONORABLE DERWOOD JOHNSON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Rick C. Magana's brief was due on March 30, 2009. No brief was filed by that date.
This Court's clerk sent Magana a notice of late brief dated April 14, 2009. The notice informed
Magana that failure to file a response by April 24, 2009, could result in dismissal of the appeal for
want of prosecution. To date, Magana has not filed a brief, a motion to extend, or other response.
This appeal is dismissed for want of prosecution and for Magana's failure to comply with a notice
from the clerk requiring a response within a specified time. See Tex. R. App. P. 42.3(b), (c).
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 25, 2009
|
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-01-00691-CV
____________
JOHN STERGIOU and MAIN MARINE REPAIR AND INDUSTRIAL
CLEANING CO., Appellants
V.
GENERAL METAL FABRICATING CORPORATION; G.M.F. LEASING,
INC.; and ARNOLD CURRY, Appellees
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2000-00900
O P I N I O N
Plaintiffs/appellees, General Metal Fabricating Corporation; G.M.F. Leasing,
Inc.; and Arnold Curry, sued defendants/appellants, John Stergiou and Main Marine
Repair and Industrial Cleaning Co., for breach of an oral contract, breach of fiduciary
duty, and fraud. Stergiou counterclaimed for violations of the Business Corporation
Act, breach of fiduciary duty, and other causes of action. The jury found in favor of
Curry. The trial court rendered judgment based on the verdict and awarded Curry
damages in the amount of $50,000 for fraud, $50,000 for punitives, $10,000 for
breach of fiduciary duties, and $140,000 for attorney’s fees. The trial court rendered
a take-nothing judgment on Stergiou’s counterclaims. We reverse and remand.
Background
Arnold Curry is a metal fabricator, an artisan who cuts and shapes industrial
metal parts. John Stergiou owns Main Marine Repair and Industrial Cleaning Co.
(Main Marine), a business that specializes in ship repair. The two men had known
each other for several years because Curry had performed metal work for Main
Marine in the past.
In April 1996, Curry wanted to start his own metal fabrication company and
approached Stergiou for help. Stergiou offered Curry an unused shop space within
the Main Marine facilities to begin operating. In exchange, Curry agreed to do
maintenance jobs and to perform small fabrication projects for Main Marine free of
charge. In April 1996, Curry began General Metal Fabricating (GMF) as a sole
proprietorship. Stergiou provided the workspace, equipment, and initial funding.
Curry’s wife, Janet Curry, assisted in the business.
As GMF expanded, Curry sought to build a new, larger facility. Stergiou
conveyed some land next to Main Marine for GMF to build the “blue building.”
Stergiou assumed personal liability for a loan from Frost Bank that GMF used to
finance the blue building.
After five months of operation, GMF was incorporated on September 18, 1996.
Curry and Stergiou were the incorporators and initial directors. On October 18, 1996,
GMF issued stock certificates representing 4,000 shares: 2,000 were issued to Curry
and 2,000 were issued to Stergiou. On February 27, 1997, GMF Leasing, Inc. was
formed and incorporated to manage and purchase the real estate used in the GMF
business.
In September 1999, a dispute arose regarding the ownership of the companies.
Curry asserted that Stergiou did not really own stock in GMF or GMF Leasing;
instead, the stock was issued to Stergiou as collateral. According to Curry, the parties
had agreed that Stergiou would return the stock when (1) Stergiou was repaid for his
financial contributions to the GMF corporations, and (2) Stergiou was released from
liability on the Frost Bank loan. In response, Stergiou contended that the stock
certificates issued to him correctly represented his shares of ownership in the
corporations. The jury found for Curry, and the trial court rendered judgment based
on the verdict.
In six issues, Stergiou contends that (1) the evidence is legally and factually
insufficient to establish an oral agreement; (2) the statute of frauds bars the alleged
oral agreement; (3) the elements of a stock pledge were not satisfied; (4) the
conditions precedent under the alleged oral contract were not satisfied; (5) the trial
court erred in excluding evidence; and (6) the trial court erred in overruling the
motion for new trial based on newly-discovered evidence.
Exclusion of Evidence
In the fifth issue, Stergiou contends that the trial court erred in excluding
evidence.
The agreement in this case is set forth in Jury Question No. 2 as follows:
Did John Stergiou and Arnold Curry agree that if (a) Arnold and the
GMF Corporations made payment of the loans made by John, Angela
Stergiou, and Main Marine to Arnold and the GMF Corporations and (b)
obtained release of the guaranty and cosigned obligations of John,
Angela, and Main Marine for Arnold and the GMF Corporations, then
John would transfer and cause transfer to Arnold of all of the stock in
the GMF Corporations owned or controlled by John.
ANSWER: YES.
The jury agreed with Curry’s contention that the parties had an oral agreement
that Stergiou would surrender his stock once he was repaid and released from
corporate obligations. Stergiou’s position, in contrast, was that he owned the stock
outright and could sell it as he wished. Stergiou attempted to introduce evidence
showing that Curry recognized Stergiou’s outright ownership of the stock. For
example, Stergiou sought to introduce evidence of Curry’s offers to buy Stergiou’s
shares, which are inconsistent with the terms of the oral contract. According to
Stergiou, it is illogical that Curry would try to buy Stergiou’s shares if the parties did
indeed have an oral contract that Stergiou would later surrender those shares.
Set forth below, we will analyze whether the trial court properly excluded: the
Zuber letter [Defense Exhibit 19a] and various documents and testimony alleged to
be offers to compromise and settle, which include Curry’s timeline [Defense Exhibit
38], two Letters of Intent [Defense Exhibits 12A &37], and Zuber’s testimony.
The 1997 Zuber Letter
Stergiou complains that the trial court improperly excluded Defense Exhibit
19a, a letter dated April 11, 1997, from Stergiou’s attorney, Gordon Zuber, to
Stergiou and Curry. The letter enclosed “a draft copy of a proposed Buy-Sell
Agreement.” Zuber drafted the attached Buy-Sell Agreement, which stated as
follows:
Shareholders [Stergiou and Curry] are the owners of all of the Shares of
the Company; and . . . the parties believe that it is in the best interest of
the Company and the Shareholders to make provisions for the future
disposition of the Shares of the Company now owned or hereafter
acquired by the Shareholders.
Stergiou attempted to introduce the Zuber letter during the cross-examination
of Curry. Curry’s counsel objected that the letter was a self-serving hearsay
communication. Tex. R. Evid. 801(d). The letter is on Zuber’s firm’s letterhead and
was signed by Zuber. Curry did not sign, approve, ratify, or adopt it. The trial court
sustained the objection and excluded the letter. Stergiou again attempted to introduce
the Zuber letter in a bill of exceptions during the re-direct examination of Zuber. The
trial court ruled that it had previously sustained the hearsay objection and “stays with
the objection.”
Stergiou did not establish any exceptions to the hearsay rule, such as the
business record exception. See Tex. R. Evid. 802, 803, 804. We hold that the trial
court did not err in excluding the Zuber letter.
The 1999 Compromise and Settlement Evidence
Stergiou contends that the trial court improperly excluded other evidence that
proved his outright ownership of the corporate stock. Defense Exhibit 38 is a
timeline prepared by Curry in 1999. Defense Exhibits 12A and 37 are letters of intent
dated 1999.
Curry sought to exclude these documents under Rule of Evidence 408, which
prohibits evidence of attempts to compromise a claim. Tex. R. Evid. 408. Curry
argued that the documents were created after the dispute arose; therefore, they are
inadmissible on the grounds of compromise and settlement. The trial court sustained
the objections and excluded the evidence.
As authority for his position, Stergiou relies on this Court’s opinion in GTE
Mobilnet of South Texas Ltd. Partnership v. Telecell Cellular, Inc., 955 S.W.2d 286
(Tex. App.—Houston [1st Dist.] 1997, writ denied). In GTE, this Court held that a
letter was not an offer to settle a claim because it did not request that the plaintiffs
drop any of their claims or relinquish any of their rights. Id. at 298. It did not ask for
any concessions or seek to impose any conditions. Id. The defendants’ subjective
belief that the letter was a settlement offer was a legal conclusion and was not
evidence that the letter was, in fact, a settlement offer. Id. at 299.
Curry contends that Stergiou waived this argument because he did not present
it to the trial court. Tex. R. App. P. 33.1. When Stergiou attempted to introduce the
evidence at trial, Curry objected based on an offer to compromise and settle. Stergiou
did not respond with the argument set forth in GTE. Curry contends that Stergiou’s
failure to respond constitutes a waiver. We disagree. Generally, to preserve error
regarding a ruling admitting evidence, a party must make a timely, specific objection
when evidence is offered. Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1). Curry
does not assert that Stergiou failed to object. Curry complains instead that Stergiou
failed to respond to Curry’s objection. Stergiou was the proponent of the evidence;
Curry properly objected as its opponent. To preserve error regarding a ruling
excluding evidence, the substance of the evidence must be made known to the trial
court by offer or apparent from the context of the questioning. Tex. R. Evid.
103(a)(2). In order to preserve the trial court’s adverse ruling in excluding the
evidence under the specific circumstances of this case, Stergiou was not required to
respond to Curry’s objection by apprising the trial court of the analysis set forth in the
GTE case.
The timeline and the two letters of intent do not mention a compromise or
settlement. They do not request that Curry drop any claims or relinquish any rights.
See GTE, 955 S.W.2d at 298. They do not mention any concessions or seek to
impose any conditions. See id. Curry’s subjective belief that the documents were
settlement offers was a legal conclusion, and therefore, was not evidence that the
documents were, in fact, settlement offers. See id.
Accordingly, we hold that exclusion of these documents was error. The
question becomes whether the error probably caused the rendition of an improper
judgment. Tex. R. App. P. 44.1(a).
The Timeline
The Curry’s timeline (Defense Exhibit 38) was a prior version of another
timeline (Plaintiff’s Exhibit 12), which was admitted in evidence. The two timelines
are essentially the same. Error in admitting evidence is generally harmless if the
contested evidence is merely cumulative of properly admitted evidence. Mancorp,
Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex. 1990). Stergiou has not shown how
the excluded timeline substantially differs from the properly admitted one. We hold
that any error in excluding the timeline was not harmful.
The Letters of Intent
Defense Exhibit 12A is a draft letter of intent prepared on Curry’s behalf by
Jason Von Luternow, a financial planner recruited by Curry. The draft stated that
Curry was interested in acquiring full ownership of the companies. In response,
Zuber prepared Defense Exhibit 37, a second letter of intent on Stergiou’s behalf,
which stated that Stergiou is the owner of one half of the shares of stock in the
companies.
In connection with Defense Exhibit 37, Stergiou attempted to admit testimony
by Zuber regarding a meeting in his law office in November 1999. Outside the
presence of the jury, Zuber testified that Curry and Stergiou met “to negotiate the
purchase of Mr. Stergiou’s stock in the companies and to divide the real estate. . . .
The only dispute was whether or not Mr. Stergiou had access to the company by
virtue of his ownership.” Zuber explained that no one mentioned the “pledge theory”
or “collateral theory” at the meeting, and the first time he became aware of these
theories was when Curry filed suit. Zuber further testified that he did not know if
Curry was attempting to settle any dispute by offering to buy the stock.
At oral argument, counsel for Curry argued that there was no harm in excluding
Zuber’s testimony because the jury heard Curry testify that the meeting was an
“ambush.” Curry’s testimony is as follows:
Q. Mr. Curry, did you have a meeting with Gordon Zuber back in April
11 – not April 11 – April or end of March of 1997 at the offices of
Gordon Zuber in the presence of John Stergiou?
A. No, I couldn’t call it that.
Q. Was there a meeting, sir, there?
A. No, there was not a meeting at which I attended.
Q. What was it?
A. It was an ambush. . . . John says, “Hey, we need to go look at a job,”
and we went and he drives to his attorney’s office and says, “Here. I
need to stop by here. Come on up.” We go in there into a conference
room where he has attorneys and they start asking questions and John
says, “I want to do this, this, and this,” and they sent me a document
over afterwards and sent me this thing and said, “Here, sign this.”
Zuber’s testimony in connection with Defense Exhibit 37 referred to a 1999
meeting, while Curry discussed a 1997 meeting. Curry simply referred to “a
document,” instead of specifically identifying Defense Exhibit 37. Therefore, Zuber
and Curry may have been testifying about different documents and different meetings.
We cannot conclude that Curry’s testimony alleviated the harm in excluding Zuber’s
testimony.
We hold that the trial court erred in excluding the letters of intent and Zuber’s
testimony. The jury was prevented from hearing evidence showing that Curry
recognized Stergiou’s outright ownership of the stock. This was a hotly-contested,
fact-intensive case. The excluded evidence provided powerful substantiation of
Stergiou’s contentions; in its absence, Stergiou had only his word. Exclusion of this
evidence probably caused the rendition of an improper judgment. Thus, we further
hold that the error was harmful. Tex. R. App. P. 44.1(a).
We sustain the fifth issue insofar as it covers the letters of intent and Zuber’s
testimony regarding the November 1999 meeting. Because this issue is dispositive,
we need not address the remaining issues and decline to do so.
Conclusion
We reverse the judgment of the trial court and remand the cause for a new trial.
/s/ Adele Hedges
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
|
3 So.3d 894 (2008)
K.D.H.
v.
T.L.H. III.
2060827.
Court of Civil Appeals of Alabama.
August 15, 2008.
*895 Susan G. James of Susan G. James & Associates, Montgomery, for appellant.
*896 John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellee.
MOORE, Judge.
In this appeal, K.D.H., the mother, challenges the custody, visitation, child-support, and attorney-fee provisions of a judgment divorcing her from T.L.H. III, the father. We affirm in part, reverse in part, and remand.
Background
In March 2006, the father filed a complaint seeking a divorce from the mother on the ground of incompatibility. He asserted that they had married in 1998; that they had three children, born on September 22, 1999, March 11, 2001, and April 10, 2003; and that, at the time he filed his complaint, the mother was pregnant with another man's child. He requested that a guardian ad litem be appointed to represent the unborn child. He sought custody of the parties' children, child support, and a division of all the parties' real and personal property. The mother answered the complaint and counterclaimed for a divorce. She sought sole custody of the parties' children.
The court appointed a guardian ad litem for the unborn child; the trial court also appointed a guardian ad litem for the parties' three children. The parties were ordered to mediate, but they did not reach a resolution during that mediation. Trial commenced on August 18, 2006. On the third day of the trial, the parties announced that they had reached a settlement. The parties' counsel read the terms of that agreement into the record, and the parties affirmed that the terms were, in fact, their agreement. The guardians ad litem approved the terms of the settlement. The trial court instructed the parties to file the settlement papers with the court within 30 days. The trial court scheduled a compliance review hearing for November 2, 2006.
At the compliance review hearing, the mother informed the court that she had discharged her previous counsel and that she did not agree with the terms of the settlement agreement. She made an oral motion to set aside the settlement agreement and to proceed with the trial. The trial court granted that motion, and the trial court set the trial to continue on November 13, 2006. The trial proceeded on November 13 and 14, 2006.
The evidence contained in the record reveals the following: At the time of the trial, the father was employed as an associate minister in a Methodist church located in Elmore County. During the marriage, the father worked primarily with the youth program at the church. The mother was, for the majority of the marriage, a stay-at-home mother. However, she also worked at the church with the youth on a volunteer basis and helped out at the church on an "as-needed" basis. At one point, she worked a part-time job to earn money for the family's church-building fund pledge.
The father called numerous witnesses who worked at the church or who attended the church, all of whom testified that the father should receive custody of the three children born to the mother and father because he was the more stable and settled parent of the two. The mother also called as witnesses a former member of the church, the pastor of her new church, her new pastor's wife, and various friends who all testified that she was a loving mother, that she was the more patient and devoted parent, and that she should receive custody of the parties' children.
The mother admitted that, in December 2005, during her marriage to the father, she had had sexual intercourse with A.G., a man involved in the church. She testified that they were physically intimate *897 only once; A.G.'s testimony confirmed that fact. The mother became pregnant as a result of the one-night encounter. The mother admitted that when she learned she was pregnant, she initially told the father and the church that he was the father of the child, even though the father had undergone a vasectomy years earlier. Within two weeks she revealed the truth. The mother carried the pregnancy to term; she testified that terminating the pregnancy was never an option for her and that she had refused to place the child for adoption, as the father had urged her to do.
The guardian ad litem for the parties' three children filed a written recommendation with the trial court; he recommended that the mother and the father receive joint legal custody, that the father receive primary physical custody, but that the mother receive more than standard visitation. He noted that the mother was currently unemployed, and, for that reason, he made no recommendation as to the issue of child support.
On February 16, 2007, the trial court entered a final judgment, awarding the father primary custody of the parties' three children; reserving the issue of paternity over the fourth child born during the parties' marriage ("the infant");[1] awarding the mother visitation with the children during alternating weeks from Thursday afternoons at 3:00 p.m. until Sunday afternoons at 3:00 p.m.; awarding the mother visitation during the other weeks from Thursday at 3:00 p.m. until the following morning; awarding the mother summer and holiday visitation with the children; ordering the mother to pay child support to the father in the amount of $363 per month; ordering the mother to pay $7,000 toward the father's attorney's fees; ordering the mother to pay $5,340 of the $8,640 fees incurred by the guardian ad litem appointed to represent the parties' three children; and ordering the mother to pay 100% of the $3,000 fees incurred by the guardian ad litem appointed to represent the infant.
On March 19, 2007, the mother filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial; she submitted an affidavit in support of that motion. On May 1, 2007, the trial court struck the mother's affidavit and denied her motion to alter, amend, or vacate or for a new trial. On June 8, 2007, the mother filed a notice of appeal.
In her principal brief on appeal, the mother asserts that the trial court exceeded its discretion in awarding the father custody of the parties' children, in denying the mother equal time with the children, in ordering the mother to pay child support to the father, and in ordering the mother to pay the guardian-ad-litem fees and the attorney fees of the father's counsel. In her reply brief, the mother asserts that she is not seeking sole custody but is seeking only "equal time as a parent who was determined equally as fit as her husband."
Custody
The mother argues that the trial court erred in finding that the mother was the "primary cause of the destruction of the marriage." "[T]he ore tenus rule affords a correct and necessary deference to the trial court's factual findings." J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1185 (Ala.Civ.App.2007).
*898 "We first note that, when evidence is presented ore tenus, the trial court's ruling as to child custody carries a strong presumption of correctness. Wheeler v. Wheeler, 574 So.2d 832 (Ala. Civ.App.1990).
"`Because the trial judge is in a unique position to observe and to hear evidence, this court will not reverse on appeal unless the ruling is so unsupported by the evidence that it constitutes an abuse of discretion and, therefore, is clearly and palpably wrong.'"
McGiffert v. McGiffert, 627 So.2d 972, 973 (Ala.Civ.App.1993) (quoting Wheeler v. Wheeler, 574 So.2d 832, 832 (Ala.Civ.App. 1990)). Based on that standard of review, we cannot hold the trial court in error for determining that the mother was primarily at fault for the breakup of the parties' marriage. The record contains ample evidence indicating that the mother's adultery and resulting pregnancy led directly to the parties' divorce.
We note that the mother does not argue in her appellate brief that the trial court erred as a matter of law by failing to consider whether her adultery had a detrimental impact on the parties' children, which is required in order to consider that misconduct as a basis for a custody award, see Murphree v. Murphree, 579 So.2d 634, 636 (Ala.Civ.App.1991) ("Before custody may be denied on the basis of indiscreet behavior, there must be evidence showing that such misconduct is detrimental to the child."), and McGiffert, supra (accord). The mother's brief likewise fails to cite any authority to that effect.
"`[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10)[, Ala. R.App. P.,] requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.' State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005). We may do so because `"it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument."' Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994))."
State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959, 962 (Ala.2007). Accordingly, we will not consider that issue.
Based on the foregoing, we find that the mother has not properly presented any grounds to reverse the custody provisions of the judgment.
Visitation
The mother next argues that, if this court affirms the trial court's award of primary physical custody to the father, the award of visitation to her was disparate and less liberal than the visitation previously agreed upon by the parties in their withdrawn settlement agreement. She points out that she and the father originally agreed that the mother would have 12 days of visitation with the parties' children each month but that, under the trial court's final judgment, she received only 8 days of visitation each month. She argues that the trial court's reduced visitation schedule is harmful to the children's emotional well-being and is contrary to the guardian ad litem's recommendation. She asserts that the trial court should not have decreased but should have increased her visitation with the children after hearing the mother's evidence because the trial court specifically found her to be a fit parent and because her indiscretion did not impair her ability to parent her children. She finally asserts that, even if the father has primary physical custody, visitation *899 should be "split down the middle" between the parents.[2]
"`[C]ases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.' Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted)."
Speakman v. Speakman, 627 So.2d 963, 965 (Ala.Civ.App.1993). "The determination of proper visitation ... is within the sound discretion of the trial court, and the court's determination should not be reversed by an appellate court absent a showing of an abuse of discretion." Ex parte Bland, 796 So.2d 340, 343 (Ala.2000).
The mother's legal arguments and citations on this issue are marginally sufficient. However, even assuming that she has sufficiently presented this issue on appeal, we find no reversible error. Although this court might have awarded more visitation had it been the trier of fact, this court does not substitute its resolution of disputed facts for the trial court's resolution of those facts. See, e.g., Speakman, 627 So.2d at 965 ("While this court might have reached a different determination, all factors considered, we will not substitute our judgment for that of the trial court."); and Alonzo v. Alonzo, 628 So.2d 749, 750 (Ala.Civ.App.1993) ("Our standard of reviews not what we might have done had we been the trial judge, but whether we find from the evidence that the trial judge was so in error as to constitute an abuse of his discretion.").
Additionally, in Ex parte Bland, supra, the Alabama Supreme Court recognized the following:
"The simple fact that the trial judge's final order reduced visitation of the noncustodial parent from six weeks in the summer to four weeks, and from every other weekend to one weekend a month, is not sufficient to find that the trial court abused its discretion. A pendente lite order is, by its nature, temporary. Further, the final order was entered after the trial court had received a substantial amount of evidence. Accordingly, we reverse that portion of the judgment of the Court of Civil Appeals reversing the trial court's visitation order."
Ex parte Bland, 796 So.2d at 343-44. In this case, the fact that the trial court's final judgment awarded the mother less visitation than the parties had initially agreed upon in their settlement agreement is not sufficient for this court to conclude that the trial court exceeded its discretion. The final judgment was entered after the trial court had received a substantial amount of ore tenus evidence. As part of that ore tenus evidence, the father requested that the children be available to attend church with him every Wednesday evening. Assuming the trial court believed that that was an appropriate schedule for the children, that evidence supported the trial court's visitation award to the mother from Thursday evenings until Sunday afternoons.
Moreover, even assuming that the guardian ad litem recommended that the mother receive more than standard visitation with the children, the trial court was not obligated to follow that recommendation. A guardian ad litem is an attorney entitled to argue his or her client's case to the court as is any other attorney, but he *900 or she is not delegated any special authority of the court. Moody v. Nagle, 811 So.2d 546, 548 (Ala.Civ.App.2001) (recognizing that the recommendation of a guardian ad litem has no binding effect on the trial court). The guardian ad litem's recommendation was simply that: a recommendation for the trial court's consideration.
Finally, we note that, on appeal, the mother argues that the visitation schedule adopted by the trial court did not afford her as much time with the children as the father. That argument does not articulate a discernible reason as to why the visitation schedule adopted by the trial court did not serve the best interests of the parties' children. Because the trial court's award of visitation was based upon ore tenus evidence and because that judgment is not so clearly erroneous as to prove that the trial court exceeded its discretion, the award of visitation in this case is due to be affirmed.
Child Support
The mother next challenges the award of child support to the father in the amount of $363 per month. She argues that an award of child support was unnecessary because the father had been the sole source of support for the parties' children during the marriage and he could continue to be their sole source of support. She argues that an exception to the application of the child-support guidelines was appropriate under the facts of this case. She also argues that the trial court should have used a downward deviation to calculate the amount of child support due during the months of June and July, when the mother would have expanded visitation with the children.
In response, the father points out that the mother fails to cite any authority in her appellant's brief for these arguments. He is correct; the mother fails to cite any legal authority for her position on the child-support issue until her reply brief. The father argues that, as a result, the trial court's child-support calculation should be affirmed. We agree. See Rule 28(a)(10), Ala. R.App. P.; State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d at 962; Kyser v. Harrison, 908 So.2d 914 (Ala. 2005) (when appellants fail to cite any legal authority for their argument until the filing of their reply brief, the issue is not properly raised on appeal); and Rogers & Willard, Inc. v. Harwood, 999 So.2d 912, 923 (Ala.Civ.App.2007). We, therefore, affirm as to the trial court's award of child support.
Award of Attorney Fees and Guardian-ad-Litem Fees
The mother next appeals from the award of fees to the two guardians ad litem and the award of fees to the father's attorney. In its final judgment, the trial court ordered the mother to pay $5,340 of the $8,640 in fees to the guardian ad litem appointed to represent the parties' children; $3,000 of the $3,000 in fees incurred by the guardian ad litem appointed to represent the infant; and $7,000 of the legal fees incurred by the father's attorney at trial.
On appeal, the mother argues that, by imposing a total of $15,340 in fees upon her, the trial court punished her for asking that the settlement agreement be set aside so that she could continue with the trial. The mother argues that she has no funds with which to pay these fees and that she is, in essence, destitute; that both parties were at fault in this matter; that both parties should be responsible for their own legal fees; that the father requested that the guardians ad litem be appointed for the children and, therefore, he should be responsible for those fees; and that the trial court failed to consider the appropriate factors in ordering her to pay the fees *901 to the father's attorney and the guardians ad litem.
We first address the mother's arguments as to the guardian-ad-litem fees. We again note that the mother's arguments regarding this issue are lacking. The mother's initial brief on appeal fails to provide a single citation for her argument that the "entire fees for both [guardians ad litem] should be paid by the former husband since the requests were made by his counsel." This argument is therefore not properly presented on appeal, and, therefore, we have no basis on which to conclude that the trial court exceeded its discretion as to the guardian-ad-litem fees. See Rule 28(a)(10), Ala. R.App. P.; State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d at 962; and Rogers & Willard, Inc. v. Harwood, 999 So.2d at 923.
The mother next argues that the trial court improperly ordered her to pay $7,000 of the father's legal fees. In support of that argument, the mother cites Rosser v. Rosser, 355 So.2d 717 (Ala.Civ. App.1977).
"`Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). "Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties' conduct, the results of the litigation, and, where appropriate, the trial court's knowledge and experience as to the value of the services performed by the attorney." Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986).'"
Springer v. Damrich, 993 So.2d 481, 489-90 (Ala.Civ.App.2008) (quoting Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App. 1996)).
The record indicates that the mother married at a young age and that, during the parties' nine-year marriage, she never held a full-time job. The evidence established that, at the time of the parties' separation, she had a limited earning capacity and that, at the time of the divorce, she had a newborn child and was unemployed. Using imputed income, the trial court ordered her to pay child support for the parties' three children. The trial court also required the mother to pay the majority of the guardian-ad-litem fees incurred in connection with the divorce proceeding. The divorce judgment ordered that the marital residence be listed with a real-estate agent and sold at fair-market price; the judgment also provided that the net proceeds from said sale be equally divided between the mother and the father and that the guardian-ad-litem fees owed by the mother be paid out of the mother's portion of said proceeds. We note, however, that the property appraised for $175,000 and that the amount owed on the first and second mortgages totaled $147,723.62. Because the judgment directed that the residence be listed with a real-estate agent, the parties will likely incur some closing costs and a realtor's commission associated with the sale of the residence. It appears that, after the mother's portion of the guardian-ad-litem fees are deducted from her one-half of any net proceeds from the sale, she will not receive a significant amount.
Conversely, the father was employed throughout the marriage; he has a greater earning capacity and a significantly higher income than the mother. The guardian-ad-litem *902 fees he was required to pay were significantly less than those imposed upon the mother. Additionally, the father will receive one-half of the net proceeds from the sale of the marital residence.
We recognize that the trial court was entitled to consider fault as a factor in awarding attorney fees. However, ability to pay is also a factor to be considered in ordering payment of attorney fees, even when wrongdoing has been established. See Rosser, 355 So.2d at 719-20 (in divorce and custody action, wife was admittedly guilty of adultery and trial court properly awarded custody of parties' minor children to husband; however, trial court properly ordered husband to pay wife's attorney fees because wife had no financial means to do so and husband's financial condition was better than wife's); Hanna v. Hanna, 688 So.2d 887 (Ala.Civ.App.1997) (even though husband was guilty of adultery, trial court did not err in failing to award wife attorney fees in light of the assets awarded to the parties and their incomes at time of the divorce); Davis v. Davis, 686 So.2d 1245 (Ala.Civ.App.1996) (award of attorney fees was appropriate because husband was in better financial condition than was wife); and Quillin v. Quillin, 652 So.2d 294 (Ala.Civ.App.1994) (husband earned more than twice as much as wife and was in better financial condition than was wife; thus, trial court properly awarded wife attorney fees in connection with divorce). See also Deidun v. Deidun, 362 S.C. 47, 606 S.E.2d 489 (2004) (factors to be considered in determining whether to award attorney fees include the parties' ability to pay the legal fees, their financial conditions, and the effect of the fee on the parties' standard of living); and Van Wieren v. Van Wieren, 858 N.E.2d 216 (Ind.Ct. App.2006) (in determining whether attorney fees should be awarded, the court may consider the resources of the parties, the relative earning ability of the parties, and other factors that bear on the reasonableness of the award).
Because the record establishes that the mother was unemployed, had limited financial resources, and had a limited earning capacity at the time of this trial because of her pregnancy, we conclude that the impact of the trial court's attorney-fee award on the mother would be substantial and farreaching.[3] We also note that the father's financial means were substantially higher than those of the mother. We, therefore, conclude that the trial court exceeded its discretion in ordering the mother to pay $7,000 of the father's attorney fees; we reverse that portion of the trial court's judgment. We remand this cause for the trial court to vacate that portion of its judgment.
Father's Request for Attorney Fees on Appeal
Finally, we address the father's request for an award of attorney fees on appeal. The award of attorney fees on appeal is within the authority and discretion of this court. See Ex parte Bland, 796 So.2d at 345 (citing Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974)). The father's attorneys have submitted an affidavit attesting that they incurred fees and expenses in the amount of $12,819.79 in connection with preparing the appellee's brief. In light of the mother's limited income and the circumstances presented in this case, we decline to award any additional fees to the father on appeal.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
*903 THOMPSON, P.J., and THOMAS, J., concur.
BRYAN, J., concurs in part and dissents in part, with writing, which PITTMAN, J., joins.
BRYAN, Judge, concurring in part and dissenting in part.
I concur in the main opinion insofar as it affirms the trial court's judgment. I respectfully dissent insofar as the main opinion reverses the portion of the trial court's judgment ordering the mother to pay the father a $7,000 attorney fee.
As the main opinion acknowledges, the determination "`"[w]hether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed."'" 3 So.3d at 901 (quoting Springer v. Damrich, 993 So.2d 481, 489 (Ala.Civ.App.2008), quoting in turn Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App. 1996)). Indeed, I note that, in every case cited by the main opinion regarding the attorney-fee issue, this court affirmed the trial court's ruling on that issue.
The "`"[f]actors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties' conduct, the results of the litigation, and, where appropriate, the trial court's knowledge and experience as to the value of the services performed by the attorney."'" Springer, 993 So.2d at 489-90 (quoting Glover, 678 So.2d at 176, quoting in turn Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993)). With regard to the conduct of the parties in the case now before us, the trial court made the following finding:
"[T]he primary cause of the destruction of the marriage lies not with both, but with one party. The misguided actions of the wife and her paramour along with her initial deception and ultimate decision concerning the pregnancy directly led to the dissolution of this marriage."
Thus, the mother's conduct in causing the breakdown of the marriage was a factor that supported the trial court's order that the mother pay the father a $7,000 attorney fee. Because the father was the prevailing party in the litigation, that factor also supported the trial court's order requiring the mother to pay the father a $7,000 attorney fee. Finally, the trial court implicitly found that the services of the father's attorney were valuable; consequently, that factor also supported the trial court's order requiring the mother to pay the father a $7,000 attorney fee.
In holding that the parties' financial circumstances warrant reversing the trial court's judgment insofar as it requires the mother to pay the father a $7,000 attorney fee, the main opinion, in effect, holds that that single factor trumps all three of the other factors. I cannot agree with that proposition. In my opinion, the three factors supporting the trial court's attorney-fee award, in the aggregate, outweigh the single factor that does not support that award. Accordingly, given the discretion afforded the trial court in awarding an attorney fee in a domestic-relations case and the factors supporting the trial court's award in this particular case, I would affirm the trial court's judgment insofar as it ordered the mother to pay the father a $7,000 attorney fee.
PITTMAN, J., concurs.
NOTES
[1] On March 27, 2007, after paternity testing, the Elmore Juvenile Court entered a consent judgment adjudicating A.G. to be the father of the infant. A.G. was ordered to pay $480 per month in child support to the mother. On April 27, 2007, the trial court entered a judgment in this case determining that T.L.H. was not the father of the infant despite the fact that the infant had been born during the parties' marriage.
[2] It appears that the mother may actually be seeking to share custody of the children with the father on an equal basis. However, her argument on this point is so vague and undeveloped that we cannot consider it. See White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042 (Ala.2008).
[3] We note that the trial court imputed income of $8.00 per hour to the mother. In order to earn sufficient income to pay the $7,000 fee award, the mother would have to work 875 hours and devote her entire gross income to payment of the fee award.
|
383 N.W.2d 1 (1986)
Ronald Steven PASEK, Petitioner, Appellant,
v.
COMMISSIONER OF PUBLIC SAFETY, Respondent.
No. C3-85-1789.
Court of Appeals of Minnesota.
March 4, 1986.
Lynn S. Castner, Minneapolis, for appellant,
Hubert H. Humphrey, III, Atty. Gen., Lawrence M. Schultz, Sp. Asst. Atty. Gen., St. Paul, for respondent.
Heard, considered and decided by HUSPENI, P.J. and FOLEY and NIERENGARTEN, JJ.
OPINION
HUSPENI, Judge.
Appellant Ronald Steven Pasek was arrested for driving while intoxicated and, after receiving a result of .18 on an Intoxilyzer test, his driving privileges were revoked. He petitioned for judicial review, and the trial court sustained the revocation. On appeal Pasek contends that the results of the Intoxilyzer test should have been suppressed when, at the time of the test, he had a quantity of snuff in his mouth. We affirm.
FACTS
Lakeville Police Officer Thomas Hakala was en route to a call in the early morning hours of July 13, 1985, when he noticed Pasek driving erratically, and stopped him at approximately 1:08 a.m. Hakala observed indicia of intoxication and formed *2 the opinion that Pasek was intoxicated. Hakala arrested Pasek for driving while intoxicated, handcuffed him, and brought him to the Lakeville Police Department.
Hakala read the implied consent advisory to Pasek at 1:31 a.m. and Pasek agreed to take a breath test. Hakala observed Pasek for approximately twenty-five minutes prior to the time the Intoxilyzer test was performed. He was watching to see whether Pasek put anything in his mouth and he did not notice him do so.
Lakeville Police Officer Shawn Mahaney, a certified police officer and Intoxilyzer operator, performed the Intoxilyzer test on Pasek. Mahaney testified that the machine performed the internal diagnostic procedure. The air blank test result of .000 and the calibration standard test reading of .100 were both within the standard limits.
Pasek blew into the machine. The reading on the first test was .182, with a replicate test of .185. The reading on the second test was .180, with a replicate test of .183. Officer Mahaney opined that the test results were accurate.
On cross-examination, Mahaney testified that in the Intoxilyzer manual, one item of concern is that the subject have his mouth clear of any substances to insure that no contamination of the test results occurs. The purpose of the fifteen to twenty minute observation period is to insure that the mouth is clear. Mahaney testified that if a substance is discovered in the mouth, his training indicates that he should delay testing for a period of time, depending on what he finds in the mouth.
Mahaney testified, without a hearsay objection, that a Bureau of Criminal Apprehension instructor told him that chewing tobacco and snuff does not affect the test results, but subjects must remove the substances from their mouths because when they blow into the Intoxilyzer the substance will go into the mouthpiece itself. The instructor also said that he had run many tests with large amounts of chewing tobacco or snuff and he even soaked them with alcohol to see whether that affected the test results. It did not.
Pasek told Mahaney between the first test and second test that he had some chewing tobacco in his mouth. Mahaney testified that they have a problem with people who chew snuff because it seems that their mouths are never clear. When they start blowing they will sometimes have a small amount of snuff show up in the mouthpiece. He makes sure that their mouths are as clear as possible. Mahaney believed Pasek may have been chewing snuff because he noticed that after Pasek blew the first sample that the mouthpiece had a small amount of something on it. He then had Pasek clear his mouth as best he could. After the second sample, Mahaney noticed the second mouthpiece had "dark saliva on it."
Pasek testified that while Officer Hakala was observing him, he was not asked whether he had anything in his mouth when he was stopped. He did, however, have a pinch of snuff in his mouth. He demonstrated to the court where he put the snuff in his mouth. He said that he put another pinch of snuff in his mouth at the police station after his handcuffs were removed. He was never told not to do so.
Pasek further testified that when he was asked to take the test, he had the remainder of the first pinch and the fresh pinch in his mouth. He volunteered that he had snuff in his mouth after he gave the first sample. He said that he was not asked to remove it and the officers did not seem concerned about it. He did spit some of it out prior to taking the second test.
The trial court found that Pasek's breath was properly analyzed by an Intoxilyzer machine and resulted in a reading of .18 alcohol concentration. It specifically found that the remnants of a pinch of chewing tobacco in Pasek's mouth at the time of the testing did not affect the validity of the test or the result obtained.
ISSUE
Did the trial court abuse its discretion in finding that the Commissioner made a prima *3 facie showing of the trustworthiness of the Intoxilyzer test and in finding that appellant failed to rebut that showing where appellant's mouth contained the remnants of a pinch of chewing tobacco at the time he took the test?
ANALYSIS
Initially we note that Pasek has attached to the appendix of his brief a manual entitled "Chemical Training Course Conducted by the Bureau of Criminal Apprehension Laboratory" and an excerpt from a "Preliminary Operator's Training Manual from the Bureau of Criminal Apprehension" for the Intoxilyzer 5000. Although Officer Mahaney referred to a manual in his testimony, he did not identify the manual, and neither of these documents was received into evidence nor considered by the trial court.
In seeking to include the documents in the record on appeal, Pasek relies upon Minn.R. 7502.041, which provides:
Breath samples must be tested for alcohol concentration using procedures approved and certified to be valid and reliable testing procedures by the director, Forensic Science Laboratory, Bureau of Criminal Apprehension, Department of Public Safety of the state of Minnesota.
There has been no showing that the proffered documents contain the procedures referred to in the rules. Where such items were not introduced below, we cannot consider them.
In order to lay a sufficient foundation to introduce a test into evidence, the proponent "must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability." State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). Minn.Stat. § 634.16 (1984) provides that results from an infrared breath test performed by a trained person "are admissible in evidence without antecedent expert testimony that an infrared breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath."
Officer Hakala testified that he observed Pasek for twenty-five minutes before the Intoxilyzer test, and he did not see him put anything in his mouth. Officer Mahaney testified that the diagnostic procedure was performed and the air blank and calibration standard tests fell within acceptable limits. Two adequate breath samples were provided. Mahaney testified that the Intoxilyzer was in proper working order and the results were accurate.
Pasek alleges that the presence of tobacco in his mouth at the time of testing invalidated the test and mandated its suppression. He also complains that an improper burden was placed upon him when he was required to go forward with evidence to show that failure to observe certain procedures invalidated the test. We cannot agree. See Scheper v. Commissioner, 380 N.W.2d 222 (Minn.Ct.App.1986).
While there was testimony indicating that the mouth should be clear when taking the test, there was also testimony indicating that chewing tobacco and snuff make no difference in a test reading. There was testimony that even tobacco soaked in alcohol did not affect the test results.
The trial court found the testimony on behalf of the Commissioner to be credible. We concur with the trial court that a prima facie showing of the trustworthiness of the test was made.
This court has considered a number of cases in which the opponents of a test attempted to rebut a prima facie showing of trustworthy test administration. See, e.g., for example, Noren v. Commissioner of Public Safety, 363 N.W.2d 315 (Minn.Ct. App.1985); Haegele v. Commissioner of Public Safety, 353 N.W.2d 704 (Minn.Ct. App.1984). We have specifically held that where there is sufficient indicia of reliability, it is not necessary that all twenty-five steps on a BCA checklist for the breathalyzer be followed. Kooi v. Commissioner of Public Safety, 363 N.W.2d 487, 489 (Minn.Ct.App.1985).
*4 Where the opponent does rebut the prima facie case, "the judge must rule upon the admissibility in the light of the entire evidence." State v. Parker, 271 S.C. 159, 164, 245 S.E.2d 904, 906 (1978) (quoted in Noren, 363 N.W.2d at 318). The credibility of the test may be preserved with an explanation of the deviation. Noren, 363 N.W.2d at 318.
Here Pasek's speculation that tobacco would affect the reliability of the test was not sufficient to rebut the prima facie showing of the Commissioner. Pasek was obligated to produce evidence that the tobacco would actually exaggerate the test results. He produced no evidence to contradict the officers' testimony that tobacco would not affect the results.[1]
The trial court specifically found that the remnants of a pinch of chewing tobacco in Pasek's mouth did not affect the validity or the results of the test. We discern no error either in the trial court's determination that the test was properly administered or in the trial court's determination that the tobacco in Pasek's mouth did not affect the test result.
DECISION
The trial court's decision to admit the results of the test, despite the fact that remnants of tobacco were in appellant's mouth at the time he took the test, was not an abuse of discretion. Appellant failed to rebut the prima facie showing of the trustworthiness of the test.
Affirmed.
NOTES
[1] In Heitkamp v. State, 363 N.W.2d 849 (Minn. Ct.App.1985), the defendant claimed that the test result was invalid because he had chewing tobacco in his mouth during the test, and an expert testified that chewing tobacco may invalidate a test result. This court did not reach the issue of whether tobacco affects the test results, because it affirmed the trial court's determination, based on conflicting evidence, that defendant had not in fact been chewing tobacco.
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08/24/2018 09:09 AM CDT
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In re A pplication of Northeast Neb. Pub. Power Dist.
Northeast Nebraska Public Power District
et al., appellants, v. Nebraska P ublic
Power District, appellee.
___ N.W.2d ___
Filed June 15, 2018. No. S-17-529.
1. Nebraska Power Review Board: Arbitration and Award: Appeal and
Error. On an appeal from the decision of an arbitration board convened
under Neb. Rev. Stat. § 70-1301 et seq. (Reissue 2009), trial in the
appellate court is de novo on the record.
2. Nebraska Power Review Board: Arbitration and Award: Evidence:
Appeal and Error. Despite de novo review, when credible evidence is
in conflict on material issues of fact, the appellate court will consider
and may give weight to the fact that the arbitration board under Neb.
Rev. Stat. § 70-1301 et seq. (Reissue 2009) observed the witnesses and
accepted one version of the facts over another.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. ____: ____. An appellate court has an independent duty to decide juris-
dictional issues on appeal, even if the parties have not raised the issue.
5. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
6. Jurisdiction. A lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.
7. Jurisdiction: Appeal and Error. When a trial court lacks the power,
that is, jurisdiction, to adjudicate the merits of a claim, an appellate
court also lacks the power to adjudicate the merits of the claim.
8. Arbitration and Award: Jurisdiction: Statutes. An arbitration board
under Neb. Rev. Stat. § 70-1301 et seq. (Reissue 2009), as a creature
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of statute, has only such authority as has been conferred upon it
by statute.
9. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
10. Public Utilities. Persons receiving similar service from a public power
district under similar circumstances cannot be charged for such service
in an arbitrary, designed, dissimilar manner.
11. Contracts: Parties. The implied covenant of good faith and fair dealing
exists in every contract and requires that none of the parties to the con-
tract do anything which will injure the right of another party to receive
the benefit of the contract.
12. ____: ____. The nature and extent of an implied covenant of good faith
and fair dealing are measured in a particular contract by the justifiable
expectations of the parties. Where one party acts arbitrarily, capriciously,
or unreasonably, that conduct exceeds the justifiable expectations of the
second party.
13. ____: ____. A violation of the covenant of good faith and fair dealing
occurs only when a party violates, nullifies, or significantly impairs any
benefit of the contract.
Appeal from the Power Review Board. Affirmed.
Steven D. Davidson and David C. Levy, of Baird Holm,
L.L.P., for appellants.
Kile Johnson and Corey Wasserburger, of Johnson, Flodman,
Guenzel & Widger, and John C. McClure, of Nebraska Public
Power District, for appellee.
Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Steinke,
District Judge.
Cassel, J.
I. INTRODUCTION
This is our first opinion addressing an appeal from an
arbitration board’s decision under Neb. Rev. Stat. §§ 70-1301
to 70-1329 (Reissue 2009). After Nebraska Public Power
District (NPPD) provided a discount to wholesale customers
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who renewed their contractual relationship, some nonrenewing
customers initiated statutory arbitration. They alleged that the
discount was discriminatory and an abuse of NPPD’s statu-
tory rate-setting authority,1 but the arbitration board disagreed.
Upon our de novo review, we conclude that the discount was
reasonable and not arbitrary and that it did not breach the con-
tract or the covenant of good faith. Accordingly, we affirm the
arbitration board’s decision.
II. BACKGROUND
1. Overview of Wholesale
R ate Dispute Process
Nebraska’s public policy is to “provide adequate electrical
service at as low overall cost as possible, consistent with sound
business practices.”2 To further that policy, “electric serv
ice should be provided by nonprofit entities including public
power districts, public power and irrigation districts, nonprofit
electric cooperatives, and municipalities.”3 Public power dis-
tricts are required by law to fix rates which are fair, reasonable,
and nondiscriminatory.4
In 1979, the Legislature enacted §§ 70-1301 to 70-13295
to provide a method to quickly and fairly resolve wholesale
electric rate disputes.6 If a wholesale purchaser elects to dis-
pute a portion of the wholesale electric charge established by
a supplier7 and the dispute remains unresolved 45 days after
the supplier receives written notice of the dispute, the dispute
shall be submitted to arbitration.8 The arbitration board is
1
See Neb. Rev. Stat. § 70-655(1) (Cum. Supp. 2016).
2
§ 70-1301.
3
Id.
4
See §§ 70-655(1) and 70-1302.
5
See 1979 Neb. Laws, L.B. 207.
6
See § 70-1302.
7
See § 70-1304.
8
See § 70-1306.
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composed of three members: one selected by the purchaser,
one selected by the supplier, and a third selected by the other
two arbitrators.9 At a hearing, the arbitration board hears tes-
timony and receives evidence relating to the dispute.10 Within
30 days after completion of the hearing, the arbitration board
shall render a written decision.11 And within 5 days of the date
of the decision, the arbitration board shall file the decision
along with all the pleadings and exhibits with the secretary of
the Nebraska Power Review Board.12
A party who is unsatisfied with the arbitration board’s deci-
sion may appeal to reverse, vacate, or modify the decision.13 To
do so, the party must file a notice of appeal with the Nebraska
Power Review Board within 30 days after the arbitration
board’s decision is filed with the Nebraska Power Review
Board.14 “Trial in the appellate court shall be de novo on the
record.”15 As noted, this is our first such decision concerning
such an appeal from the arbitration board. We now turn to the
facts of the case.
2. Contracts
NPPD, a public power district, derives the majority of its
revenue from wholesale power supply contracts with politi-
cal subdivisions in Nebraska. These wholesale power supply
contracts often are the largest single financial obligation of the
purchasing political subdivision.
The appellants (hereinafter purchasers) are political sub-
divisions engaged in the distribution of electricity to retail
electric customers. They are wholesale customers of NPPD.
9
See § 70-1307.
10
See § 70-1318.
11
See § 70-1320.
12
See § 70-1321.
13
See § 70-1325.
14
See § 70-1326.
15
§ 70-1327.
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Purchasers are parties to NPPD’s 2002 wholesale power con-
tract (2002 WPC).
The 2002 WPC included a 20-year term beginning on
January 1, 2002. After December 31, 2021, the 2002 WPC
would automatically renew from year to year unless terminated
with 5 years’ notice by either party.
The 2002 WPC obligated wholesale customers to purchase
their full energy requirements from NPPD for the first 6 years
of the contract. After that point, a wholesale customer could
limit or reduce its purchases of demand and energy from NPPD
in varying amounts depending on the length of advance notice
provided to NPPD. To limit purchases meant that a customer
could continue to buy power in the same amount as on the date
of its notice to NPPD, but that it would not buy any future
growth in its electricity from NPPD going forward. To reduce
purchases meant that the customer could purchase less than its
full requirements from NPPD. The 2002 WPC imposed no fee
or rate increase in exchange for the privilege to limit or reduce
purchases. Each purchaser had given, or intended to give,
notice to NPPD of its intention to limit or reduce its purchases,
which reductions would commence at various times on and
after January 1, 2017.
The 2002 WPC listed different types of costs that NPPD
was authorized to include in its revenue requirement for rate-
setting purposes. One such cost was “amounts reasonably
required to be set aside in reserves for items of costs the
payment of which is not immediately required, such as . . .
post-retirement employee benefit reserves.” Thus, the 2002
WPC allowed NPPD to include in its revenue requirements a
reasonable amount to be set aside for other postemployment
benefits (OPEB). OPEB are benefits promised to employees
once they retire. They are unfunded liabilities associated with
past service.
In 2009, NPPD formed a contract strategy team to look at
options for extension of the 2002-era contracts. NPPD desired
more certainty in its revenue stream than that provided by
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the 2002 WPC. And NPPD believed that the provisions of
the 2002 WPC permitting customers to limit or reduce their
purchases would allow some customers to economically disad-
vantage others.
In 2013, NPPD initiated negotiations to replace the 2002
WPC with a new standard wholesale contract. The negotiations
resulted in a 20-year contract beginning on January 1, 2016,
and ending on December 31, 2035 (2016 WPC). A customer
under the 2016 WPC could not limit or reduce its purchases
unless NPPD failed to meet certain performance standards.
NPPD decided to charge extending and nonextending custom-
ers the same general firm power service rate. But as an incen-
tive to get customers to execute a new contract, NPPD created
a discount for renewing customers. Thus, the 2016 WPC pro-
vides a rate discount through December 31, 2021, at an amount
to be approved by the NPPD board of directors. Purchasers did
not execute the 2016 WPC.
3. Funding OPEB Obligation
Prior to 2007, NPPD funded its OPEB obligation on a
“pay-as-you-go” basis. In 2007, the Governmental Accounting
Standards Board implemented Governmental Accounting
Standards Board Statement No. 45. This statement required
NPPD to use actuaries to calculate and identify its unfunded
OPEB liability and include those amounts in notes to its finan-
cial statements. It allowed NPPD to amortize the unfunded
OPEB liability over a period up to 30 years. The statement
also introduced the concept of the annual required contribution,
which is the theoretical amount, if contributed consistently
each year, that would fully prefund future retiree benefits asso-
ciated with benefits earned for past service.
NPPD then explored its options for accounting and report-
ing of OPEB. One was continuation of “pay-as-you-go.” This
had the lowest impact on rates. However, because of a per-
ception that NPPD was not addressing the liability, it had the
potential for a negative response from rating agencies and the
investment community. Another option was to put the annual
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required contribution into 1 year’s rates. That would mean add-
ing approximately $36 million as a revenue requirement in the
rate-setting process and collecting the full sum from customers
in rates within a 1-year period. A third option was to borrow
money toward the OPEB liability. NPPD could borrow money,
and the debt service from the borrowing would be added into
the revenue requirements used to set rates.
At that point, NPPD adopted a plan to obtain additional
funding in rates. Under the plan, NPPD would continue on
the pay-as-you-go basis for 2007. Through rates, NPPD would
collect $4 million over the pay-as-you-go amount between
2008 and 2013, and then $10 million above the pay-as-you-
go amount thereafter. The money would fund an OPEB trust,
which was projected to be fully funded by 2033.
By 2011, actuarial studies showed that NPPD would need to
contribute more in order to have the liability funded by 2033.
NPPD decided to accelerate the collection of the OPEB liabil-
ity to the 6-year term remaining in the 2002 WPC. Otherwise,
based on purchasers’ notifications of reductions, purchasers
would be able to avoid 40 percent of their pro rata share of the
OPEB obligation. NPPD estimated the liability to be $155 mil-
lion. To collect that amount over 6 years, NPPD increased the
annual budgeted contribution to the OPEB trust by $25 million.
NPPD referred to it as a “catch-up.”
The Governmental Accounting Standards Board also cre-
ated Governmental Accounting Standards Board Statement
No. 75, which became effective for fiscal years ending after
June 2017. This statement no longer permitted disclosure of
OPEB in notes to the financial statements; it required enti-
ties such as NPPD to recognize the entire OPEB as a “hard”
liability on its balance sheet. Because the statement recom-
mended early implementation, NPPD chose to do so for the
2016 year end.
4. 2016 and 2017 R ates
The inclusion of the $25 million in OPEB catch-up expense
resulted in a 3.7-percent increase for 2016 rates. Wholesale
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customers who elected to sign the 2016 WPC received a
3.57-percent discount on the rate in 2016. The 2017 rate
similarly included $25 million for accelerated funding of
the OPEB trust and a discount for customers who signed the
2016 WPC.
5. Complaint
Purchasers filed a complaint against NPPD before the arbi-
tration board. They alleged that NPPD violated § 70-655(1),
claiming that the 2016 rate was discriminatory. Purchasers
alleged that the 2016 rate was formulated and implemented
in breach of the 2002 WPC. They further claimed that NPPD
breached the implied covenant of good faith and fair dealing
by charging them a different rate. They sought declaratory
relief and damages. Purchasers later filed an amended com-
plaint to challenge the 2017 rate on similar grounds.
At a hearing, the arbitration board received extensive evi-
dence. We will discuss the evidence in more detail in the analy-
sis section of the opinion.
6. A rbitration Board’s Decision
The arbitration board determined that the 2016 and 2017
rates were reasonable. It stated that the OPEB catch-up
amounts were reasonable, because they related to the value of
the service rendered to purchasers during their years of tak-
ing service from NPPD. It further stated that NPPD did not
arbitrarily select the amounts to include in the catch-up, but,
rather, those amounts were “the product of a systematic study
of the actuarial liability of OPEB attributable to production-
level services.”
The arbitration board also determined that the 2016 and
2017 rates were nondiscriminatory. It reasoned that the dis-
count merely deferred the collection of the 2016 and 2017
catch-up amounts for customers under the 2016 WPC. The
board explained:
Customers under the 2002 WPC and the 2016 WPC
are taking the same service from NPPD and charged
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the same rate. The customers operate under two sepa-
rate and differing contracts, fairly negotiated. The 2016
customers gave up some rights they had under the 2002
WPC and accepted new terms including the deferred
collection of the OPEB Catch-Up amounts included
in the 2016 and 2017 rates. Customers under the 2016
WPC have over 18 years left in their comm[i]tment to
NPPD, whereas [purchasers] have just over 4 years. This
differentiated approach is fair and reasonable as relat-
ing to the collection of a liability that solely relates to
past services.
Finally, the board determined that NPPD did not breach the
2002 WPC or the covenant of good faith and fair dealing. The
board therefore denied all of purchasers’ requests and deter-
mined that the 2016 and 2017 rates met the standards estab-
lished by § 70-655(1).
Purchasers appealed, and we granted their petition to bypass
review by the Nebraska Court of Appeals.
III. ASSIGNMENTS OF ERROR
Purchasers assign that the arbitration board erred in (1) fail-
ing to find NPPD’s 2016 and 2017 wholesale rate structure
violated § 70-655(1), (2) failing to find NPPD’s 2016 and 2017
wholesale rate structure breached the 2002 WPC, and (3) fail-
ing to find NPPD violated the duty of good faith and fair deal-
ing under the 2002 WPC.
IV. STANDARD OF REVIEW
[1,2] On an appeal from the decision of an arbitration board
convened under § 70-1301 et seq., trial in the appellate court is
de novo on the record.16 Despite de novo review, when credible
evidence is in conflict on material issues of fact, the appellate
court will consider and may give weight to the fact that the
trial court observed the witnesses and accepted one version of
16
§ 70-1327.
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the facts over another.17 We apply this same rule in an appeal
from an arbitration board under this statutory scheme.
V. ANALYSIS
1. Jurisdiction
[3,4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.18 Neither party challenges
the arbitration board’s jurisdiction to decide the matters pre-
sented to it. But an appellate court has an independent duty to
decide jurisdictional issues on appeal, even if the parties have
not raised the issue.19
[5-7] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case in the general class or category
to which the proceedings in question belong and to deal with
the general subject matter involved.20 A lack of subject matter
jurisdiction may be raised at any time by any party or by the
court sua sponte.21 When a trial court lacks the power, that
is, jurisdiction, to adjudicate the merits of a claim, an appel-
late court also lacks the power to adjudicate the merits of
the claim.22 We begin by considering whether the arbitration
board had subject matter jurisdiction over the issues presented
to it.
The parties presented three issues to the arbitration board,
and those same three issues are before us on appeal. The issues
17
See Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017). See,
also, In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018);
Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017); Strohmyer
v. Papillion Family Medicine, 296 Neb. 884, 896 N.W.2d 612 (2017);
Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016).
18
Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
19
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
20
Boyd v. Cook, supra note 18.
21
Id.
22
Cappel v. State, 298 Neb. 445, 905 N.W.2d 38 (2017).
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concern the validity of NPPD’s rate structure, whether NPPD
breached its contract with purchasers, and whether NPPD
breached the covenant of good faith and fair dealing. Because
this case was brought under § 70-1301 et seq., we must deter-
mine whether the arbitration board had subject matter jurisdic-
tion over all of the issues.
[8] The arbitration board, as a creature of statute, has only
such authority as has been conferred upon it by statute.23
Statutes have clearly empowered an arbitration board to deter-
mine a wholesale electric rate dispute.24 But it is less clear
whether the arbitration board also has jurisdiction over the
contractual issues presented in this case.
[9] Reading the statutes in §§ 70-1301 to 70-1329 as a
whole leads us to conclude that the arbitration board’s juris-
diction is not limited to deciding a dispute over the establish-
ment of a wholesale rate. Components of a series or collection
of statutes pertaining to a certain subject matter are in pari
materia and should be conjunctively considered and construed
to determine the intent of the Legislature, so that different
provisions are consistent, harmonious, and sensible.25 One
section empowers the board to resolve not just wholesale rate
disputes but also “rate disputes relating to transmission and
delivery of electrical energy.”26 A dispute may address “all or
any portion of the wholesale electric charge.”27 The dispute
could concern a “mathematical, metering, or quantity error
in the billing.”28 And that the arbitration board may consider
more than merely the wholesale rate to be charged is implicit
in the Legislature’s directive that the parties meet with the
23
See, generally, Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883
N.W.2d 676 (2016).
24
See, e.g., §§ 70-1302, 70-1304, 70-1306, and 70-1307.
25
In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).
26
§ 70-1302.
27
§ 70-1304. See, also, § 70-1305 (“disputed portion”).
28
§ 70-1304.
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arbitration board “for the purpose of clarifying and narrowing
the specific issues from those set forth in the detailed state-
ment of disputed issues.”29
An arbitrated dispute may be intertwined with contractual
issues. The Legislature clearly contemplated the existence of
power contracts.30 Often, such contracts speak to amounts that
may be charged for electricity. In order to resolve a dispute,
an arbitration board may need to determine whether there was
contractual compliance. The arbitration board has authority to
“consider only those matters necessary for the resolution of the
disputed issues” but it may “not alter or modify any existing
contract.”31 We conclude that where, as here, contractual issues
are intertwined with a rate dispute, such contractual issues are
within the arbitration board’s jurisdiction.
We note that no party is attacking the constitutionality of
the statutes contained in §§ 70-1301 to 70-1329. We express
no opinion on the relationship of these statutes to the juris-
diction conferred upon a district court under the Nebraska
Constitution.32
2. Whether R ate Structure
Violates § 70-655(1)
(a) Additional Evidence at Hearing
NPPD presented considerable evidence concerning its
efforts to address its unfunded OPEB liability. NPPD’s whole-
sale billing manager testified that if NPPD had collected the
full unfunded OPEB obligation of $150 million in 1 year, it
would have resulted in a rate increase of over 22 percent—
a much larger rate increase than the 3.7 percent that was
implemented. The manager testified as to the amounts of
purchasers’ pro rata shares of OPEB that they could avoid by
29
§ 70-1312.
30
See §§ 70-1303, 70-1304, and 70-1314.
31
See § 70-1314.
32
See Neb. Const. art. V, § 9.
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reducing their purchases under the 2002 WPC. In the aggre-
gate, purchasers potentially could avoid $3,750,000 of their
pro rata share of the $150 million OPEB catch-up collection.
The manager emphasized fairness and reasonableness and
stated that because the costs were associated with past serv
ice, NPPD needed to find a way to recover the costs from all
of its customers who had benefited from them. He believed
that NPPD’s methodology was reasonable because it tried to
recover the unfunded obligation over a 6-year period, which
was the remaining time period in the 2002 WPC.
NPPD’s chief financial officer testified that in 2016, NPPD
borrowed approximately $23 million on behalf of the 2016
WPC customers by issuing taxable debt to generate bond pro-
ceeds. The interest on the borrowing was capitalized through
2021. NPPD borrowed a similar amount under similar terms
for the 2017 catch-up. The chief financial officer explained
that purchasers and customers under the 2016 WPC “are both
being charged the exact same rate, except for the 2016 con-
tract customers I have borrowed their pro rata share and made
that deposit into the OPEB trust and I’ve recorded a regula-
tory asset that says they will have to pay that beginning in
2022.” Because the rates are identical, the difference in what
is charged and collected is a function of the discount. With the
discount, OPEB gets paid from two sources: contributions from
ratepayers and investment earnings in the trust.
According to the chief financial officer, the purpose of
the discount would be “deferring the collection of that 2016
and now 2017 catch-up amount until 2022 through 2033, the
same time period.” She explained that the wholesale custom-
ers would pay the same amount, but it would be collected
over a different time period. In order for the delayed pay-
ments to equate to a payment today, NPPD would have to
apply a discount rate between 3.37 and 3.9 percent. The chief
financial officer testified that the discount was “a mechanism
to fairly collect the OPEB catch-up from two different cus-
tomer groups.”
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Purchasers’ expert, David Dismukes, a consulting econo-
mist, viewed purchasers and the customers under the 2016
WPC as similarly situated in terms of the nature of the power
service they receive from NPPD. Dismukes testified that cus-
tomers can be charged different rates, but that the rates “have
to be justifiable and there has to be a cost basis for that.”
Dismukes opined that the rate structure created discrimina-
tion between the two sets of customers. He explained that simi-
larly situated customers were being assessed rates that differed
for taking similarly situated services. According to Dismukes,
there were no cost differences between the two groups of cus-
tomers. The signing of the 2016 WPC was the only difference,
and Dismukes did not believe that the execution of a new
contract justified a different rate. He testified that there was
no legitimate cost basis supporting the discount mechanism.
Based on Dismukes’ knowledge of the industry, he believed
that a discount for one subset of customers and not the other
constituted rate discrimination.
From a cost-based rate-setting perspective, Dismukes dis-
agreed with testimony to the effect that both groups would
ultimately pay the same amount. He pointed out that “a dollar
today is not the same as a dollar tomorrow” and that there was
a benefit to not making the payment today. He testified that
the timing difference created an economic advantage of suffi-
cient consequence to support a finding of discrimination. Thus,
Dismukes opined that NPPD did not set its rates in a manner
that was fair, reasonable, and nondiscriminatory.
NPPD’s expert, Joseph Mancinelli, the general manager
and president of a consulting firm specializing in management
economics predominantly serving the public power market,
disagreed. He opined that NPPD’s 2016 and 2017 rates were
fair, reasonable, and nondiscriminatory. In arriving at that
conclusion, he looked at the unfunded accrued OPEB liability,
which was incurred over a historical period and was directly
attributed to the labor of retirees. He testified that it was
proper to recover those costs from customers who enjoyed
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Cite as 300 Neb. 237
those benefits, i.e., the 2002 WPC and 2016 WPC customers.
Mancinelli believed that the rates were adequate and would
support the revenue requirement.
Mancinelli explained that there was one rate and that the
difference was the source of the funding of the OPEB liability.
Because the 2016 WPC customers had a long contract, the cost
was financed. But financing was not an option for the 2002
WPC customers, so the funding came out of rate revenues. He
stated that the source of the funds created a difference and that
difference “is the genesis of what we call the discount.”
Mancinelli believed that the cost of borrowing the money
was not materially different from the discount. He testified that
the discount was cost based and that it was basically the dif-
ference between funding the trust with cash from revenues or
funding the trust with borrowed funds. Mancinelli was unaware
of any other utility imposing a rate increase for the exclusive
purpose of collecting money for an OPEB trust. Although
NPPD’s situation and solution was unique, he opined that it
met the test of being fair, reasonable, and nondiscriminatory.
(b) Discussion
Purchasers contend that the rate structure for 2016 and 2017
violates § 70-655. That statute requires NPPD’s board of direc-
tors to fix adequate rates that are “fair, reasonable, nondis-
criminatory, and so adjusted as in a fair and equitable manner
to confer upon and distribute among the users and consumers
. . . the benefits of a successful and profitable operation and
conduct of the business of the district.”33 As the party claiming
discrimination, purchasers have the burden of proof to estab-
lish its existence.34
[10] Purchasers rely on McGinley v. Wheat Belt P.P. Dist.35
In that case, a wholesale distributor informed Wheat Belt
33
§ 70-655(1).
34
See 12 Eugene McQuillin, The Law of Municipal Corporations § 35:57
(3d ed. 2017).
35
McGinley v. Wheat Belt P.P. Dist., 214 Neb. 178, 332 N.W.2d 915 (1983).
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Cite as 300 Neb. 237
Public Power District (Wheat Belt) that the distributor would
be imposing a surcharge on Wheat Belt, which would be
assessed on the basis of Wheat Belt’s summer peak demand.
To deal with the surcharge, Wheat Belt created two classes of
customers based on the date the customer requested service.
Customers before a certain date would be protected from
increased costs associated with the surcharge, on the theory
that it was the new customers who were causing the increased
summer peak demand. As a result, Wheat Belt charged mark-
edly different rates for customers receiving similar service. We
concluded that Wheat Belt’s action in establishing two classes
of customers and assessing most of the surcharge to one class
was arbitrary and discriminatory. We stated, “Persons receiv-
ing similar service under similar circumstances cannot be
charged for such service in an arbitrary, designed, dissimi-
lar manner.”36
McGinley is distinguishable from the situation at hand.
There, Wheat Belt wanted to assess the bulk of a surcharge
against one class of customers. To do so, it wanted to charge
different rates to similarly situated customers. Here, NPPD is
charging but one rate—purchasers are charged the same rate
as NPPD’s customers under the 2016 WPC. The difference
between the amounts charged to purchasers and the 2016 WPC
customers is attributable to a discount for the 2016 WPC cus-
tomers. Of course, under some circumstances, charging one
rate but conferring a discount upon some customers could be
discriminatory. But here, as discussed below, there was a rea-
sonable basis for NPPD’s ratemaking determination.
The discount is tied to the OPEB liability. That liability
relates solely to past services of NPPD employees, and pur-
chasers received the benefit of those services. Because a spe-
cific portion of OPEB cannot be connected to any particular
customer, NPPD allocated the liability on a pro rata basis.
It is reasonable for purchasers to pay their pro rata share of
36
Id. at 187, 332 N.W.2d at 920.
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the liability. And the catch-up amounts, which were based on
actuarial studies, are not arbitrarily established.
There is a reasonable basis for the discount. If a variance in
rates is based upon a reasonable and fair difference in condi-
tions that equitably and logically justifies a different rate, any
discrimination is not unjust.37 Purchasers opted not to extend
their contractual relationship with NPPD; thus, NPPD had a
shorter period of time in which to collect purchasers’ pro rata
share of the liability. On the other hand, customers under the
2016 WPC extended their relationship with NPPD for an addi-
tional 20 years, thereby giving NPPD a longer period of time
over which to collect those customers’ pro rata share.
NPPD crafted a plan to collect the OPEB catch-up expense
at different times. Under the plan, purchasers pay their por-
tion of the OPEB catch-up expense over the 6 years remaining
on their contract, while customers under the 2016 WPC get a
discount during those years and will pay the catch-up expense
between 2022 and 2033. It is the difference in the remaining
terms of the contractual relationship with NPPD between pur-
chasers and customers under the 2016 WPC that allows for the
different collection of the OPEB liability. The effort to fund the
OPEB trust through catch-up amounts in 2016 and 2017 was
an effort to mitigate the risk of shifting the cost of the com-
mon liability onto the customers under the 2016 WPC. Under
the circumstances of this case, the discount for one group of
customers is not discriminatory.
The methodology assured that both classes of customers
would pay an equal share of OPEB costs—the difference
would be solely in the timing of the payments. Contrary to
purchasers’ argument, the financing scheme imposed a future
cost sufficient to remedy the advantage that the 2016 WPC
customers otherwise would have had from paying their share
later. In other words, an approximation of the time value of
37
See 14 William Meade Fletcher, Fletcher Cyclopedia of the Law of
Corporations § 6681 (Carol A. Jones ed., perm. ed., rev. vol. 2012).
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money was built into the mechanism employed to ensure that
both classes of customers were treated fairly. In evaluating
the experts’ testimony, the arbitration board had the advan-
tage of observing them and making judgments considering
their credibility. We have considered and given weight to
that fact.
3. Whether R ate Structure
Breached 2002 WPC
Purchasers next argue that the discount constitutes a breach
of the 2002 WPC. It does not. Under the 2002 WPC, purchas-
ers agreed to pay “amounts reasonably required to be set aside
in reserves for items” such as OPEB. The catch-up amounts
were reasonably within the definition of revenue requirements.
This assignment of error lacks merit.
4. Whether R ate Structure Breached
Covenant of Good Faith
[11,12] Finally, purchasers argue that the discount breached
the covenant of good faith and fair dealing. The implied cov-
enant of good faith and fair dealing exists in every contract
and requires that none of the parties to the contract do any-
thing which will injure the right of another party to receive the
benefit of the contract.38 The nature and extent of an implied
covenant of good faith and fair dealing are measured in a par-
ticular contract by the justifiable expectations of the parties.
Where one party acts arbitrarily, capriciously, or unreasonably,
that conduct exceeds the justifiable expectations of the sec-
ond party.39
[13] Purchasers claim that giving a discount to the 2016
WPC customers penalized purchasers for exercising their con-
tractual right to purchase energy elsewhere. We disagree. The
availability of the discount was not connected to whether a
38
Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).
39
Id.
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Cite as 300 Neb. 237
customer reduced or limited its energy purchases from NPPD;
rather, it was available to all customers under the 2016 WPC. A
violation of the covenant of good faith and fair dealing occurs
only when a party violates, nullifies, or significantly impairs
any benefit of the contract.40 Purchasers did not have a right
to avoid paying amounts toward unfunded accrued liability
for OPEB. They have failed to show that NPPD significantly
impaired any benefit of the 2002 WPC.
VI. CONCLUSION
We conclude that NPPD’s rate structure for 2016 and 2017
was fair, reasonable, and nondiscriminatory. We further con-
clude that the rate structure did not constitute a breach of either
the 2002 WPC or the implied covenant of good faith and fair
dealing. Accordingly, we affirm the decision of the arbitra-
tion board.
A ffirmed.
Wright and Miller-Lerman, JJ., not participating.
40
Id.
|
535 F.2d 1249
Guilliamsv.Mathews
No. 75-1806
United States Court of Appeals, Fourth Circuit
3/1/76
1
W.D.Va.
AFFIRMED
|
14 F.3d 594
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Mallion DAVIDSON, Plaintiff-Appellant,v.Gary L. AARON; John Doe; Tommie Taliaferro; PatrickWhalen, Warden; George E. Hurst; James M. Ralph;Bill Hedrick, Defendants-Appellees.
No. 93-6586.
United States Court of Appeals, Fourth Circuit.
Submitted: Sept. 28, 1993.Dec. 21, 1993.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.
Mallion Davidson, Appellant Pro Se.
Rebeca Olivia Hidalgo, Assistant United States Attorney, for Appellee.
E.D.Va.
VACATED AND REMANDED.
Before PHILLIPS, WILKINSON, and WILLIAMS, Circuit Judges.
PER CURIAM
OPINION
1
Mallion Davidson appeals from a district court order dismissing his Bivens* complaint. We vacate the order and remand for further proceedings.
2
The district court found that Davidson's complaint only requested declaratory and injunctive relief. Although the request was not in the "relief" section of the complaint, the complaint explicitly requested monetary damages. Because we are constrained to view pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), we interpret Davidson's complaint to sufficiently seek monetary relief. Accordingly, we remand for further consideration for Davidson's complaint. 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.
VACATED AND REMANDED
*
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-4045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WAYNE OLIVER VIANDS,
Defendant - Appellant.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Harrisonburg. Jackson L. Kiser, Senior Dis-
trict Judge. (CR-97-80)
Submitted: August 24, 1999 Decided: September 21, 1999
Before HAMILTON and NIEMEYER, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Roland M.L. Santos, Harrisonburg, Virginia, for Appellant. Robert
P. Crouch, Jr., United States Attorney, Nancy S. Healey, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wayne Oliver Viands pled guilty to conspiracy to distribute
methamphetamine. On appeal, Viands alleges that the district court
erred by finding that he was the leader or organizer of the drug
conspiracy. Thus, he contends that his sentence was improperly en-
hanced four levels under U.S. Sentencing Guidelines Manual (“USSG”)
§ 3B1.1(a) (1998).
We do not find that the district court clearly erred in
applying the enhancement. See United States v. Perkins, 108 F.3d
512, 518 (4th Cir. 1997). The evidence reveals that Viands headed
a drug conspiracy of greater than five persons, recruited his son
into the enterprise, and essentially oversaw the acquisition,
cutting, and distribution of the drugs, and collection of money
from sales. See United States v. Harris, 39 F.3d 1262, 1270-71
(4th Cir. 1994); USSG § 3B1.1, comment. (nn.2, 6). Accordingly,
we affirm Viands’ sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
AFFIRMED
2
|
United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40237
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MARIO LUGAN-BALLEZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-917-1
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Jesus Mario
Lugan-Balleza concedes that the arguments raised are foreclosed
by circuit precedent but seeks to preserve them for further
review. The Government has moved for summary affirmance in lieu
of filing an appellee’s brief. The motion is GRANTED, and the
judgment of the district court is AFFIRMED.
*
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.
|
997 F.2d 1134
72 A.F.T.R.2d 93-5705, 62 USLW 2127,93-2 USTC P 50,468
George S. NALLE, III, and Carole Nalle, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.Charles A. BETTS and Sylvia I. Betts, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 92-4954.
United States Court of Appeals,Fifth Circuit.
Aug. 16, 1993.
Michael L. Cook, Carolyn M. Beckett, Jenkens & Gilchrist, Austin, TX, for petitioners-appellants.
Abraham N.M. Shashy, Jr., Chief Counsel, I.R.S., Linda E. Mosakowski, Gilbert S. Rothenberg, Gary R. Allen, Chief, Appellate Section, Tax Div., Dept. of Justice, Washington, DC, for respondent-appellee.
Appeal from a Decision of the United States Tax Court.
Before SMITH, DUHE, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
1
George and Carole Nalle and Charles and Sylvia Betts (collectively, the "taxpayers") appeal a decision of the Tax Court upholding the assessment of an income tax deficiency against them by the Commissioner of Internal Revenue (the "Commissioner"). Because we find the treasury regulation pursuant to which the Commissioner assessed the deficiency to be an invalid interpretation of the statute, we reverse.
I.
2
George Nalle ("Nalle") owns a fifty-percent interest in the Heritage Square Joint Venture, which, between 1982 and 1984, identified eight buildings in and around Austin that were appropriate for rehabilitation and relocation, five of which were slated for demolition in order to accommodate the expanding campus of the University of Texas at Austin. All eight houses were purchased and moved to the Heritage Square office subdivision in suburban Rollingwood, where they were restored to substantially the same style and condition as originally constructed.1
3
Because each house was more than forty years old on the date rehabilitative work commenced, Nalle claimed an investment tax credit for over $500,000 of the rehabilitation performed in tax years 1983-86, pursuant to section 48(g) of the Internal Revenue Code (the "Code"), 26 U.S.C. § 48(g). Heritage did not claim the tax credit for expenditures incurred in refurbishing one of its properties, the Julia Harris house, but passed the credit on to the purchasers, appellants Charles and Sylvia Betts, who reported a credit for $35,934 on their joint 1983 federal tax return, $14,322 of which was carried back to their 1980 return.
4
On June 28, 1985, the Internal Revenue Service ("IRS") published proposed treasury regulation 26 C.F.R. § 1.48-12, subsection (b)(5) of which set forth a requirement that "qualified rehabilitated buildings" such as were eligible for the section 48(g) tax credit not have been relocated within either thirty or forty years of the date on which rehabilitation was begun. The regulation was adopted in final form on October 7, 1988, and was applied retroactively to rehabilitation expenditures incurred after December 31, 1981. The IRS audited the taxpayers' returns for 1983-86, and on June 9, 1989, issued a statutory notice of deficiency disallowing the credits.
5
In the Tax Court, it was stipulated that the houses qualified for the rehabilitation tax credit but for the exclusion of relocated properties contained in section 1.48-12(b)(5). The taxpayers argued that the new regulation was invalid because it added a requirement to the statute that had not previously existed, yet was passed pursuant to the Commissioner's interpretive authority under 26 U.S.C. § 7805(a) and not pursuant to any legislative authority conferred by Congress with respect to section 48(g). The Commissioner countered that the regulation was not inconsistent with the statutory text and vindicated a central policy goal of the original legislation (as revealed by the legislative history)--the revitalization of decayed and deteriorating areas. The Tax Court ruled in favor of the Commissioner, citing the support for his position contained in the legislative history of the tax credit.
II.
6
An interpretive regulation promulgated pursuant to the Commissioner's authority under section 7805(a) is generally "entitled to substantial weight." Lykes v. United States, 343 U.S. 118, 127, 72 S.Ct. 585, 590, 96 L.Ed. 791 (1952).2 The Supreme Court has provided us with substantial guidance in reviewing the propriety of such regulations:
7
In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmonizes with the plain language of the statute, its origin, and its purpose. A regulation may have particular force if it is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent. If the regulation dates from a later period, the manner in which it evolved merits inquiry. Other relevant considerations are the length of time the regulation has been in effect, the reliance placed on it, the consistency of the Commissioner's interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent re-enactments of the statute.
8
National Muffler Dealers' Ass'n v. United States, 440 U.S. 472, 477, 99 S.Ct. 1304, 1307, 59 L.Ed.2d 519 (1979).
III.
9
The dispute here is the interpretation of one subsection of the Code provided by a regulation issued more than five years after the subsection it purports to interpret. The key subsection is section 48(g)(1)(A), which, as it existed for the tax years in question,3 set out a three-part test governing eligibility for the rehabilitative investment tax credit:
10
(A) In general.--The term "qualified rehabilitated building" means any building (and its structural components)--
11
(i) which has been rehabilitated,
12
(ii) which was placed in service before the beginning of the rehabilitation, and
13
(iii) 75 percent or more of the existing external walls of which are retained in place as external walls in the rehabilitation process.
14
Only the last of these requirements, referred to by the parties as the "external wall test," concerns us. It is the taxpayers' contention that the external wall test means more or less what it says--that a building may qualify for the tax credit only if its structure remains substantially the same as before rehabilitation. The test, they say, simply serves to distinguish new construction, for which no credit is allowed, from rehabilitation, for which the credit is available. The Commissioner, relying largely upon a deferential review of agency determinations, argues that section 1.48-12(b)(5), which divines in the external wall test a restriction on relocation of non-historic rehabilitated buildings, is not inconsistent with the origin and purpose of the statute.4
15
As previously noted, the Tax Court upheld the regulation on the basis that it "harmonized" with congressional intent, at least as revealed by selected passages from the credit's legislative history:
16
The legislative history of section 48 reveals that it is not, as petitioners contend, solely a device to promote the rehabilitation of older buildings. From its inception, the tax credit for rehabilitation expenditures was intended to provide an economic stimulus for those areas susceptible to economic decline and abandonment, particularly the "central cities and neighborhoods of all communities."
17
Nalle v. Commissioner, 99 T.C. 187, 195, 1992 WL 184967 (quoting H.R.REP. No. 1445, 95th Cong., 2d Sess. 86, reprinted in 1978 U.S.C.C.A.N. 7046, 7121).
18
We are mindful, at the outset, of Justice Scalia's recent reference to the use of legislative history as oftentimes being "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." Conroy v. Aniskoff, --- U.S. ----, ----, 113 S.Ct. 1562, 1567, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring). Our reading of the scant legislative history surrounding the 1978 adoption and 1981 amendment of section 48(g) suggests that, in this case, the Tax Court picked its few friends from an otherwise indifferent crowd.
19
Foremost among those friends is the above-quoted House report on the Revenue Act of 1978, which first extended the investment tax credit--previously restricted to equipment and machinery--to non-historical, non-residential buildings. According to the report, among the reasons for the change was as follows:
20
Presently, there is a similar concern [to that which gave rise to the investment tax credit for machinery and equipment] about the declining usefulness of existing, older buildings throughout the country, primarily in central cities and older neighborhoods of all communities....
21
The committee believes that it is appropriate now to extend the initial policy objective of the investment credit to enable business to rehabilitate and modernize existing structures. This change in the investment credit should promote greater stability in the economic vitality of areas that have been developing into decaying areas.
22
1978 U.S.C.C.A.N. at 7121.
23
In 1981, Congress imposed a three-tiered structure upon the tax credit: Rehabilitated historic structures would receive a 25% credit, structures at least forty years old a 20% credit, and thirty-year-old structures, 15%. The Tax Court also cited the legislative history of this amendment to validate the Commissioner's regulation. The Senate Report states as follows:
24
The tax incentives for capital formation provided in other sections of this bill might have the unintended and undesirable effect of reducing the relative attractiveness of the existing incentives to rehabilitate and modernize older business structures. Investments in new structures and new locations, however, do not necessarily promote economic recovery if they are at the expense of older structures, neighborhoods, and regions. A new structure with new equipment may add little to capital formation or productivity if it simply replaces an existing plant in an older structure in which the new equipment could have been installed. Furthermore, the relocation of business can result in substantial hardship for individuals and communities. Since this hardship does not affect the profitability of the business, it may not have been fully taken into account in the decision to relocate, even though it is an economic detriment to the society as a whole.
25
The increased credit for rehabilitation expenditures is intended to help revitalize the economic prospects of older locations and prevent the decay and deterioration characteristics of distressed economic areas.
26
S.REP. No. 144, 97th Cong., 1st Sess. 72, reprinted in 1981 U.S.C.C.A.N. 105, 177.
27
As the above excerpts attest, the Tax Court's conclusion that the 1988 regulation vindicated the statute's intent to revitalize depressed areas, stated most forcefully in the legislative history appended to the 1981 amendments, is not entirely without foundation; Congress undoubtedly considered the bill's revitalizing potential as among its more attractive features. Thus, the Commissioner contends that the prohibition on relocation contained in section 1.48-12(b)(5) naturally arises from Congress's broadly expressed intent (in the legislative history) to benefit depressed communities. Absent such a prohibition, the Commissioner maintains, nothing prevents a taxpayer from doing ostensibly what the taxpayers have done here: relocating old buildings from one neighborhood to another without conferring any visible benefit upon the "distressed economic areas" whose plight Congress sought to ameliorate.
28
This fact, however, urged so strenuously by the Commissioner as determinative of the issue before us, cannot support the stress he places upon it. Contrary to the Commissioner's interpretation, the legislative history never speaks in exclusive terms of the goal of urban revitalization, nor can it be said that Congress structured the statute to vindicate such a goal exclusive of other concerns. Had it intended to do so, a restriction upon the credit's availability solely to "certified" depressed areas would seem in order, just as the credit for historic rehabilitation was limited to certified historic structures. Even with the regulatory prohibition on relocation in place, the statute presents a singularly imprecise means for revitalizing depressed areas: Any old building, even one located in a prosperous area, may still qualify, so long as it is not moved--even to a depressed area.
29
A better reading of the legislative history is that Congress merely anticipated that urban revitalization would be a collateral benefit of the legislation. The 1978 history speaks primarily of a desire to redress the then-skewed incentives leading businesses to invest in new equipment and machines and new buildings to house them. While the old buildings targeted by the credit are "primarily in central cities and older neighborhoods" (emphasis added), nothing in either the statute or the history suggests that they are exclusively so or that the credit should be limited to those that are. Rather, the explanation of the provision expresses the expectation that, as an added bonus, "[t]his change ... should promote greater stability in the economic vitality of areas that have been developing into decaying areas." 1981 U.S.C.C.A.N. at 7121.
30
The legislative history to the 1981 amendment states the revitalization goals of the statute in far stronger terms than does the 1978 history, but it too must be understood in its proper context. The 1981 amendment merely increased (and differentiated depending on age and historical value) the credit, in order to enhance the relative attractiveness to businesses of rehabilitating old structures vis-a-vis relocating to newer ones. Thus, the language stressing the negative impact of relocation on depressed communities meant relocation from old to new buildings, not from poor to prosperous areas; just as with the 1978 history, the Congress was acting on the expressed assumption that most of the old buildings subject to the credit were in depressed areas, and, therefore, that the increased credit would benefit those neighborhoods primarily.
31
The inconclusiveness of the legislative history, however, is by no means dispositive. If it were, we might be inclined to side with the Commissioner, in light of the deference courts generally owe to interpretations of a statute by an agency charged with its enforcement. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984). Here, however, we deal not with the sort of "legislative regulation" at issue in Chevron, see id. at 843-44, 104 S.Ct. at 2782, but with an interpretive regulation promulgated under the Commissioner's authority pursuant to section 7805(a). Accordingly, "we owe the interpretation less deference than a regulation issued under a specific grant of authority to define a statutory term or prescribe a method of executing a statutory provision." Rowan Cos. v. United States, 452 U.S. 247, 253, 101 S.Ct. 2288, 2292, 68 L.Ed.2d 814 (1981); United States v. Vogel Fertilizer Co., 455 U.S. 16, 24, 102 S.Ct. 821, 827, 70 L.Ed.2d 792 (1982).
32
More significant for purposes of judicial analysis, however, is the lack of ambiguity in the statute. In section 48(g), Congress crafted a detailed and reasonably precise means for determining eligibility for the tax credit; the three-part "external wall test" and the statutory definitions of all key phrases evidence that Congress left relatively little for the Commissioner to interpret. Like the regulation invalidated in Vogel Fertilizer, section 1.48-12(b)(5) "purports to do no more than add a clarifying gloss on a term ... that has already been defined with considerable specificity by Congress." 455 U.S. at 24, 102 S.Ct. at 827.
33
In the absence of any ambiguity, our analysis must be confined to the plain language of the statute. As the Supreme Court has stated,
34
Legislative history can be a legitimate guide to a statutory purpose obscured by ambiguity, but in the absence of a clearly expressed legislative intention to the contrary, the language of the statute itself must ordinarily be regarded as conclusive. Unless exceptional circumstances dictate otherwise, when we find the terms of a statute unambiguous, judicial inquiry is complete.
35
Burlington N. R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987) (citations and internal quotation marks omitted). Before the Tax Court, the Commissioner anchored section 1.48-12(b)(5)'s interpretation of the statute in the "external wall test" of section 48(g)(1)(A)(iii). According to the Commissioner, that subsection's dictum that seventy-five percent of the pre-existing external walls must be "retained in place" in order to qualify for the credit necessarily implies a limitation on relocation: " 'Retained' and 'retained in place' must have different meanings.... [E]ither the words 'in place' provide a restriction on location, or they are superfluous." Nalle, 99 T.C. at 190 (alteration in original).
36
We discern, however, a number of difficulties with the Commissioner's "plain language" interpretation of section 48(g). While, generally, it is a tenet of statutory construction that every word must be given meaning where possible, such that no word or phrase is rendered superfluous by interpretation, the original regulations for the tax credit defined "retained in place" and said nothing respecting a restriction on the relocation of rehabilitated structures.5 The considerable detail of the regulation suggests that, had Congress intended to incorporate some such restriction within the phrase "retained in place," here was an opportunity for the Commissioner to mention it. His failure to do so until after the taxpayers had acted in reliance upon the 1980 proposed regulations weighs heavily in our analysis, inasmuch as National Muffler directs us to consider not only such reliance upon a regulation, but also the consistency of the Commissioner's interpretation of the statute when scrutinizing regulations for their fidelity to the Congressional mandate. See National Muffler, 440 U.S. at 477, 99 S.Ct. at 1307.
37
More damning of the Commissioner's claim that section 1.48-12(b)(5) merely clarifies the statute's application is its logical incoherence. As written, the regulation expressly exempts certified historic structures; they may still be relocated and qualify for the credit. But the Commissioner does not explain how the statutory phrase "retained in place," when applied to old buildings, means that they may not be relocated from their original site, but implies no such limitation when applied to old, historic buildings.6
38
Similar attempts at such investment tax credit alchemy by the Commissioner have been rejected recently by two courts intimately familiar with tax appeals. See Griffin Indus. v. United States, 92-2 U.S.T.C. (CCH) p 50,606 at 86129 (Cl.Ct.1992) (invalidating 26 C.F.R. § 1.48-9(g)(1)); Pepcol Mfg. Co. v. Commissioner, 98 T.C. 127, 134, 1992 WL 17457 (1992) (en banc) (same). The Commissioner cannot explain away this ultimate incompatibility of his regulation with the statute by reference to the legislative history; where a plain reading of the statute precludes the Commissioner's interpretation, no legislative history--be it ever so favorable--can redeem it.7
39
We find, therefore, that the interpretation urged by the Commissioner, and embodied in section 1.48-12(b)(5), finds no support in the statutory text. While this resolution relieves us of the need to reach the taxpayers' argument against the retroactive application of the regulation, we find troubling the Commissioner's understanding of the appropriate burden to be placed upon taxpayers seeking to comply with the Code. According to the taxpayers, they closely examined the Code and accompanying regulations available at the time they conceived their business plan. According to the Commissioner, the taxpayers were wanting in diligence; somehow, they were obliged not only to consult the legislative history, but to glean therefrom the doubtful conclusion that their credits would be disallowed were they to relocate the buildings in the course of rehabilitating them.
40
Thus to require similarly-situated taxpayers in the future to examine the legislative history before relying upon the plain-spoken word of Congress would be to teach what we believe to be
41
a false and disruptive lesson in the law. It says to the bar that even an "unambiguous [and] unequivocal" statute can never be dispositive; that, presumably under penalty of malpractice liability, the oracles of legislative history, far into the dimmy past, must always be consulted. This undermines the clarity of law, and condemns litigants (who, unlike us, must pay for it out of their own pockets) to subsidizing historical research by lawyers.
42
Conroy, --- U.S. at ----, 113 S.Ct. at 1567 (Scalia, J., concurring) (brackets in original). Yet this "false and disruptive lesson in the law" is precisely that which the Tax Court took upon itself to teach the taxpayers in this case. "Confronted with recently enacted legislation, and in light of the magnitude of their rehabilitation project," the court stated, "petitioners should have examined the statute and its background in greater detail prior to proceeding with the purchase of the buildings." Nalle, 99 T.C. at 196. We disagree and, accordingly, REVERSE the decision of the Tax Court.
1
The three houses not removed to make way for expansion of the campus were found in other parts of Texas and were moved, variously, 20, 70, and 80 miles to Heritage Square
2
Section 7805(a) provides, in pertinent part, that "the Secretary [of the Treasury] shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue." 26 U.S.C. § 7805(a) (Supp.1993). Although the section expressly refers to the Treasury Secretary, the Commissioner is an authorized delegate of the Secretary. See 26 C.F.R. § 601.601(a)(1)
3
Section 48 was redesignated as section 47 by the Omnibus Budget Reconciliation Act of 1990, Pub.L. 101-508, § 11813, 104 Stat. 1388--536 et seq
4
Section 1.48-12(b)(5) states, in part, as follows:
Location at which the rehabilitation occurs. A building, other than a certified historic structure ... is not a qualified rehabilitation building unless it has been located where it is rehabilitated for the thirty-year period immediately preceding the date physical work on the rehabilitation began in the case of a "30-year building" or the forty-year period immediately preceding the date physical work on the rehabilitation began in the case of a "40-year building."
26
C.F.R. § 1.48-12(b)(5) (1992)
5
Initially proposed and published in 1980, see 45 Fed.Reg. 71368, 71369 (1980), § 1.48-11(b)(4)(iv) was issued in its final form in 1985, see 50 Fed.Reg. 26696, 26699 (1985), and reads as follows:
Retained in place. An existing external wall is retained in place if the supporting elements of the wall are retained in place. An existing external wall is not retained in place if the supporting elements of the wall are replaced by new supporting elements. An external wall is retained in place, however, if the supporting elements are reinforced in the rehabilitation, provided that such supporting elements of the external wall are retained in place. An external wall is retained in place even though it is covered (e.g., with new siding). Moreover, the existing curtain may be replaced with a new curtain provided that the structural framework that provides for the support of the existing curtain is retained in place. An external wall is retained in place notwithstanding that the existing doors and windows in the wall are modified, eliminated, or replaced. A wall may be disassembled and reassembled so long as the same supporting elements are used when the wall is reassembled. Thus, for example, in the case of the brick wall, the wall is considered retained in place even though the original bricks are removed (for cleaning, etc.) and put back to form the wall.
26
C.F.R. § 1.48-11(b)(4)(iv) (1992)
6
We note that the statute was amended in 1986 to divorce the treatment of certified historic structures from that of non-historic qualified rehabilitated buildings by limiting the application of the external wall test solely to the latter structures. See Tax Reform Act of 1986, Pub.L. No. 99-514, § 251(b), 100 Stat. 2085, 2184 (1986). The amendment renders the Commissioner's interpretation of the phrase "retained in place" at least plausible, if only as applied prospectively from the date of passage. But here the Commissioner has sought to extend § 1.48-12(b)(5) retroactively to rehabilitation expenditures incurred after December 31, 1981. That the statute had to be amended to conform to the regulation, rather than the reverse, strongly implies the regulation's invalidity as an interpretation of the statute prior to the amendment
Moreover, Treasury regulation 26 C.F.R. § 1.191-2(e)(6) formerly expressly provided that the expenses incurred in relocating a certified historic structure could be included in the rehabilitation expenses subject to amortization under Code § 191. Although § 191 was repealed in the Economic Recovery Tax Act of 1981, Pub.L. 97-34, § 212(d)(1), 95 Stat. 172, 239, it is further evidence of the implausibility of § 1.48-12(b)(5)'s interpretation of the statute.
7
Lastly, we point out that while the Commissioner disputes the taxpayers' contention that § 1.48-12(b)(5) creates an additional requirement to those contained in the statute, the taxpayers simply are quoting the Commissioner's own words back to him. The notice of proposed rulemaking that introduced § 1.48-12(b)(5) in 1985 stated that "[t]he proposed regulations contain additional restrictions applying in the case of buildings that have been moved." See L.R. 238-81, 1985-2 C.B. 777, 778 (emphasis added)
|
698 S.W.2d 63 (1985)
STATE of Tennessee, Appellee,
v.
David Carl DUNCAN, Appellant.
Supreme Court of Tennessee, at Nashville.
September 9, 1985.
Rehearing Denied September 30, 1985.
*65 Edward M. Yarbrough, J. Russell Heldman (on appeal only), William Norman Ligon, Nashville, (at trial only), for appellant.
Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., W.J. Michael Cody, Atty. Gen. & Reporter, Nashville, of counsel.
OPINION
COOPER, Chief Justice.
Defendant, David Carl Duncan, appeals his conviction of murder in the first degree and sentence of death, and two consecutive life sentences imposed on convictions for armed robbery and aggravated rape. He questions the sufficiency of the evidence over all, rulings by the trial court on voir dire, the admission of evidence, objections to argument by the state in both the convicting and sentencing phases of the trial, and the court's instructions to the jury. Defendant also insists that the sentencing provision of the Tennessee Death Penalty Act, T.C.A. § 39-2-203, is unconstitutional.
After consideration of the several issues and of the entire record, we are of the opinion that no reversible error was committed in the trial, that the verdicts and sentences are sustained by the evidence, and that the sentence of death under the circumstances of this case is in no way arbitrary or disproportionate. See State v. Harries, 657 S.W.2d 414 (Tenn. 1983); State vs. Strouth, 620 S.W.2d 467 (Tenn. 1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692; Houston v. State, 593 S.W.2d 267 (Tenn. 1980), cert. denied 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 117.
Defendant was convicted of raping and killing Ruby Evelyn Burgess in the course of a robbery of the Short Stop Market in Gallatin, Tennessee. Ms. Burgess was employed at the market as the night-shift cashier, with her work assignment being from 10:00 p.m. to 6:00 a.m. On February 15, 1981, her relief reported to the market at approximately 5:40 a.m. She found the *66 "still-warm," partially nude body of Ms. Burgess in the aisle near the cash register. Ms. Burgess's throat had been cut and she was lying in a pool of blood. Her pants and undergarments were pulled down around her lower right leg. A trail of blood led from the cooler at the back of the store to her body, indicating that the assault took place in the cooler. Time of death was fixed by the examining physician at approximately 5:30 a.m. According to the examining physician, Ms. Burgess's death resulted from three cuts to her neck of such force that they cut through her neck muscles, jugular vein, trachea, larynx and esophagus, and nicked the carotid artery. The immediate cause of death was an air embolus in the heart caused by the entry of air into the blood stream through the gaping wound in Ms. Burgess's neck.
A subsequent examination of Ms. Burgess's body revealed mobile sperm in her vagina from a "type O secretor." The defendant is a "type O secretor," as are approximately thirty-five percent of the male population.
The cash register drawer was closed when Ms. Burgess's body was found, but comparison of the cash register tape with the contents of the register showed that $246.00 was missing. The last item shown on the cash register tape was a 35¢ grocery item. (Prior to it, $3.00 worth of gas and a 25¢ grocery item had been sold.) A bottle of Tropicana fruit punch, which sold for 35¢, was sitting on the counter by the cash register. The bottle still had "frost" on it when the police arrived. Six fingerprints were lifted from the bottle. Four of the prints were later identified as being from defendant's left hand.
Linda Kelly, a local cab driver who had known the defendant three or four years, testified that she saw defendant pumping gas into a dark green Buick Electra at the market at approximately 4:50 a.m. on February 15, 1981. The defendant was wearing a toboggan and a dark jacket and had his hair in plaits.
At approximately 5:30 a.m., Harold Pryor, an employee of the Nashville Tennessean, was putting newspapers in a rack outside the Short Stop Market, when he saw a young black male, six foot one, approximately one hundred forty-five pounds, wearing a "tam" (or having short hair) and a dark "shawl," come from the direction of the market door and go towards a dark blue or black car parked at the store. The description generally matched that of the defendant, but Pryor did not identify the defendant as the man he had seen.
On the day after the murder, the defendant called the cab company and for the first time ever specifically requested that Ms. Kelly drive him to work in nearby Hendersonville, Tennessee. When the defendant mentioned to Kelly that he had seen her someplace the night before, Kelly reminded him that they had seen one another at the Short Stop Market. The defendant said he had trouble remembering this because "he'd been gettin' out and gettin' high ... that weekend." When Kelly said, "it's bad about that woman, you know, gettin' killed," the defendant's hands began to tremble and he changed the subject. For the next week and a half Kelly drove the defendant to and from work for $14.00 per day. The defendant then told Kelly he was leaving Gallatin to go to a vocational training center in Kentucky or Indiana. The proof showed defendant did join the Job Corps in Kentucky, where he remained until the fall of 1981.
After his return to Gallatin, the murder investigation zeroed in on the defendant. The defendant gave the police two statements to the effect that he had not been near the store at the time of the murder, that he seldom traded there, and that he did not know Ms. Burgess. He said he had never purchased any juice at the store and was allergic to fruit punch. He further stated that he knew of no way he could have touched the bottle the police found on the counter by the cash register, and from which his fingerprints had been lifted.
The defendant's proof consisted of the testimony of friends and family. His girlfriend testified that he had spent the night of the killing at her house and that he had *67 worked on her automobile the next day. She also testified that the defendant usually drove her orange and white automobile when he needed an automobile. Family members testified that while they owned two dark green automobiles, a Buick and a Nova, the Nova was not "street-worthy" in February, 1981, and the Buick was not purchased until sometime in 1982. The defendant's brother who owned the Nova testified that he had not permitted defendant to drive the car on the night of the murder, nor had he allowed defendant to drive his 1977 dark blue Grand Prix. The defendant did not testify.
From this evidence, the jury found the defendant guilty of first degree murder, aggravated rape, and armed robbery. Life sentences were given on the rape and robbery convictions and, in a separate hearing, the jury returned the sentence of death on the first degree murder conviction. In imposing the sentence of death, the jury found from the evidence introduced in the convicting phase of the trial that the murder of Ruby Evelyn Burgess was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and that the murder was committed while the defendant was engaged in committing rape and robbery. See T.C.A. § 39-2-203(i)(5) and (7). No mitigating circumstances were found by the jury.
Where the sufficiency of the evidence is challenged, as it is in this case, the relevant question for this court is whether a rational trier of fact could find from the evidence that the essential elements of the crimes for which the defendant stands convicted were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2782, 61 L.Ed.2d 560 (1979); T.R.A.P. Rule 13(e). In our opinion, the evidence in this case meets the test. There is no question but that the crimes of murder, aggravated rape, and robbery were committed, and the evidence, though circumstantial, points unerringly to the defendant as the person guilty of the crimes. He was placed at the scene near the time the crimes were committed, and his fingerprints were on the "sweating" bottle of Tropicana juice found beside the cash register. A conviction based on circumstantial evidence is proper where the facts are "so clearly interwoven and connected that the finger of guilt is pointed unerringly at the defendant and the defendant alone." State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 613 (1971). We are also of the opinion that the evidence that the murder of Ruby Evelyn Burgess occurred in the course of the rape and robbery, and the fact that her assailant cut her neck three times and left her to bleed to death, in our opinion fully supports the jury's finding of the two aggravating circumstances which were the bases of their decision that the punishment of the defendant for murder in the first degree should be death. There was no evidence of mitigating circumstances.
In determining the sufficiency of the convicting evidence, this court of necessity had to consider the challenges to testimony made by counsel for defendant on appeal. In only one instance, that is the admission of the black and white photographs of the scene of the crimes and the wound in the victim's neck, did trial counsel object to the admission of evidence. On appeal, new counsel also questions (1) the admissibility of the testimony of the examining physicians, (2) the admission of evidence obtained through defendant's detention, arrest, and interrogation, which would include the defendant's statements to officers, his fingerprints, and the blood and saliva samples, and (3) the testimony of the serologist. We find no prejudicial error in the admission of any of this evidence.
As pointed out by the state, it is basic that the failure of a defendant to timely object to the introduction of testimony is a waiver of appellate review of the issue. See T.R.A.P. Rule 36(a); State v. Harrington, 627 S.W.2d 345 (Tenn. 1981); State v. Keele, 644 S.W.2d 435 (Tenn. Crim. App. 1982). However, in cases where the defendant is under sentence of death, this court is under the duty to "automatically" review the sentence, which imposes the burden on this court to consider any alleged *68 error, whether called to the trial court's attention or not. See T.C.A. § 39-2-205(a); State v. Harries, 657 S.W.2d 414 (Tenn. 1983). In short, there is no waiver of error directed to the admissibility of evidence when the defendant is under sentence of death. However, our review of an alleged error is handicapped at times by the failure of trial counsel to object to the introduction of evidence, as his failure too often deprives the opposing party of the opportunity to remove any question as to the competency and relevancy of questioned evidence. One such instance in this case is the admissibility of defendant's statements, fingerprints, blood and saliva tests obtained as the result of defendant's detention in August, 1982. The defendant never moved to suppress the evidence. His only objection during trial was to Detective David Lames's testimony regarding the statement of the defendant and that objection was on the ground that Lame himself did not take the statement and consequently did not know if the defendant had knowingly waived his Miranda rights. With respect to the statements, fingerprints, blood and saliva samples, the proof shows that on August 27, 1982, two policemen asked the defendant to come to the police station in connection with another crime. The defendant was not arrested until later that day when it was determined his fingerprints matched those on the fruit juice bottle. The chronology of that afternoon's events is unclear, but Detective Lame testified the defendant was read his rights and signed a statement voluntarily waiving them. He also, according to Detective Lame, voluntarily agreed to submit to saliva and blood tests and gave several statements to the police. After being charged, he was held in the Sumner County Jail over the weekend until Monday, when he was again advised of his rights, waived them, and gave another statement.
On appeal, for the first time the defendant challenges the evidence on constitutional and statutory grounds. Defendant argues the evidence was inadmissible as the fruit of an illegal arrest, because the defendant did not knowingly and intelligently waive his Miranda rights, because his statements were coerced, and because his last statement was obtained before he was examined by a magistrate in violation of T.C.A. § 40-5-103. In the absence of an objection or motion challenging the evidence on these grounds, the proof was not directed by either party so as to delineate fully the circumstances surrounding the defendant's detention, arrest, and interrogation; consequently, there is nothing in the record to support the contentions of the defendant.
Defendant insists that the trial court erred in permitting Dr. Norman Saliba and Dr. John Flynn to testify as experts when neither was a qualified forensic pathologist and their testimony was highly speculative and invaded the province of the jury.
Dr. Saliba, who was a general surgeon, the Sumner County Medical Examiner, and an emergency room doctor at the Sumner County Hospital, examined the body at the scene and determined the cause of death (a terminal air embolus caused by the severed jugular vein in the victim's neck). Dr. Flynn, also in emergency medicine at the county hospital, examined the body at the hospital and collected evidence such as vaginal swabs and fingernail scrapings. Neither doctor was a forensic pathologist. The state's examination as to the doctors' qualification was minimal, but the defendant made no objection to their qualifications at trial.
Dr. Flynn's testimony, which for the most part describes the examination and tests he had performed, was not improper. Dr. Saliba, however, did go outside his area of expertise in giving his version of how the crime occurred (e.g. he deduced from the disarray of store merchandise that the victim had been dragged backwards, her arms flailing, with her attacker's arm choking her about the neck). The defendant did not object to Dr. Saliba's reconstruction of the crime. Since the defendant was not disputing that the victim was murdered and the trial court instructed on expert opinion evidence, the testimony *69 of Dr. Saliba outside the area of his medical expertise was harmless in our opinion.
The contention that the aggravated rape conviction should be reversed because of the doctors' lack of expertise is baseless in light of the evidence supporting rape (numerous spermatozoa in the vagina, the victim's torn clothing, bruises on her thighs, her body nude from the waist down).
The defendant also insists that the trial court erred in admitting in evidence black-and-white photographs of the crime scene and the victim. The questioned photographs were introduced during Dr. Saliba's testimony. They show the pool of blood in the cooler where the victim was apparently first attacked, the bloody trail from the cooler to the aisle where the victim died, the victim's body as found, and the fatal throat wound. The defendant objected to them as prejudicial. The state argued they were admissible to show premeditation and malice. In ruling that the pictures were admissible in evidence, the trial judge expressed his disagreement with the appellate courts' "liberal" position on the admissibility of photographs and stated he reluctantly admitted the pictures because "the appellate courts take the position there's no such thing as prejudice overcoming the probative value." These statements seem to indicate that the trial judge felt that if photographs are probative they are admissible despite any prejudicial effects and that he failed to weigh probative value versus prejudicial potential as State v. Banks, 564 S.W.2d 947 (Tenn. 1978), requires.
Nevertheless, the photographs of the crime scene and even the body are admissible under Banks. Those of the store, though showing blood, are not gruesome and supplement and clarify oral testimony describing the crime scene. Furthermore, the defendant apparently was disputing that a sexual attack occurred, and the photographs of the body showing the arrangement of the victim's clothing were relevant on that issue. The photograph of the throat wound, which was taken after the body had been cleaned, was not necessary in view of the detailed testimony of the medical examiner and should have been excluded in our opinion. However, as in State v. Banks, supra, it does not affirmatively appear that the error in admitting this photograph affected the results of the trial. See also, State v. Melson, 638 S.W.2d 342, 364-65 (Tenn. 1982); T.R. Crim.P. Rule 52(a); T.R.A.P. Rule 36(b).
The defendant further argues that the trial court erred in admitting into evidence testimony of the serologist that the defendant was one of thirty-five percent of the male population who are "type O secretors" and therefore could have had intercourse with the victim. The defendant insists the testimony was irrelevant prejudicial, and beyond the scope of expert opinion. The serologist testified, without objection, to the percentage of the population who are male type O secretors. He was qualified to and did testify that the defendant was a type O secretor. It followed that the defendant fell into the suspect percentage. This is not evidence of mathematical probabilities designed to bolster the credibility of scientific tests or other evidence, as in the two cases cited by the defendant, People v. Harbold, 464 N.E.2d 734, 746-51 (Ill. App. 1984) (chances of identical blood types less than one in five hundred) and People v. Collins, 438 P.2d 33 (Cal. 1968) (Probability that there was another couple identical to the defendants was one in twelve million).
The defendant further insists that the trial judge committed reversible error in its admonishments and comments to the jury on the second day of the trial. The comments complained of are: (1) A statement about recording a television movie for the jurors; (2) An explanation of why the jury must avoid media coverage of the case; and (3) An explanation of why the jurors are not allowed to directly question the witnesses. We see no error here. The remarks were not coercive and did not invite prejudicial speculation on the jurors' parts.
*70 Defendant also takes issue with the prosecutor's closing argument in both guilt and sentencing phases of the trial, insisting the arguments were improper and prejudicial.
Again, defense counsel did not object to the state's arguments. Ignoring the fact of waiver, most of the statements described by counsel as "gross misstatements" of the evidence or referring to facts outside the record are legitimate inferences drawn from the proof. In our opinion, none were prejudicial or materially affected the jury's decisions. In finding lack of prejudice, we do not place our stamp of approval on the state's argument that "the presumption of innocence has gotten up and fled the courtroom. It's not here anymore. The presumption of guilt now has taken over and that's enshrouding Mr. David Carl Duncan. The presumption of innocence is not there anymore. Because the facts are in here and you are to consider them." On its face this seems a misstatement of the position in Tennessee that the presumption of innocence remains with the defendant up until the verdict. See Holt v. State, 210 Tenn. 188, 357 S.W.2d 57, 61-62 (1961); Watkins v. State, 140 Tenn. 1, 203 S.W. 344, 346 (1918), but see 22A C.J.S. Criminal Law § 581(c), at 340 (1961). However, the district attorney general may have been trying to express the idea that the presumption was overcome (in reply to the defendant's argument that it was "unimpeachable"), once the jurors were convinced beyond a reasonable doubt from the evidence that the defendant was guilty. In light of the failure of defense counsel to object and the correct instruction by the court on the presumption of innocence, this statement does not seem plain error, nor in our opinion did it materially affect the verdict of the jury.
Defendant insists that because of the absence of TBI agent Fortner from the trial, that he was entitled to the benefit of the "missing witness" instruction. We see no merit in this issue. Fortner, who was present as an onlooker when defendant first signed a waiver of his Miranda rights and was interrogated, did not possess peculiar knowledge concerning the interrogation. Detective Lame, who did testify, was as familiar with the matter as Fortner and was available to both the State and the defendant. See State v. Jones, 598 S.W.2d 209, 224 (Tenn. 1980); State v. Johnson, 673 S.W.2d 877, 883 (Tenn. Crim. App. 1984); State v. Harris, 637 S.W.2d 896, 898-99 (Tenn. Crim. App. 1982).
During the process of instructing the jury, the trial court began to read the pattern "missing witness" instruction then stopped and excused himself, saying, "I beg your pardon. That charge is not applicable." This was not a comment on the evidence contrary to Article VI, § 9 of the Tennessee Constitution as the defendant claims and could not have prejudiced the defendant.
Defendant also insists that in the sentencing phase of the trial, the trial court gave instructions to the jury which had the effect of instructing them to disregard the sole mitigating factor of mercy or sympathy for the defendant in their weighing process. The instruction complained of was given in answer to a juror's question of what a "life sentence" means. The court instructed the jury, in substance, not to speculate as to whether a sentence would be carried out, but to consider only the charge as given. Later the court recalled the jury from its deliberations and instructed them to assume that any sentence would be carried out and not to speculate as to anything else. We see no error in the court's instructions, and no prejudice to the defendant.
In a supplementary brief filed as a result of this court's opinion in State v. Williams (Knoxville, May 20, 1985), the defendant insists that the failure of the trial court to specifically define the words "heinous," "atrocious," "cruel," "torture," and "depravity of mind" used in T.C.A. § 39-2-203(i)(5) was error. In the Williams case this court undertook to define the terms as used in the statute and imposed the requirement that in future cases the jury be instructed in the meanings of *71 the terms. In the present case the trial court gave the pre-Williams' instruction with no interpretation of the words. The defendant made no objection. The proof here, that the killer with great force sliced three times deeply into the victim's neck and left her to bleed to death, does support the aggravating circumstance as defined in Williams. See also State v. Dicks, 615 S.W.2d 126 (1981), cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240. Additionally, the second aggravating circumstance that the murder was committed while the defendant was engaged in committing rape and robbery was correctly instructed and fully supported by the proof. We therefore see no prejudicial error in the trial court's failure to give the jury a detailed definition of the several terms set forth in the aggravating circumstances described in T.C.A. § 39-2-203(i).
Defendant also questions the granting of the state's challenge, on voir dire, of juror Margaret Culbreath for cause. Under Wainwright v. Witt, ___ U.S. ___, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), a trial court may constitutionally exclude jurors whose views would prevent or substantially impair their performance of duties as jurors in accordance with their instructions and oath. In making this determination the court pointed out that deference must be given to the trial judge, in whose province are findings based on demeanor and credibility. In Witt the court was allowed to exclude a juror who was "afraid" or "thought" that her views against the death penalty would interfere with her ability to determine the defendant's guilt.
In the present case, Ms. Culbreath told the court she did not "believe" she could consider the death penalty as an alternative punishment unless she saw the crime committed. On further voir dire, she said it was not just the death penalty that she could not consider but that she just did not "want to be put in a position to judge another human being on the basis of what one says against what another person says." She was then excused for cause without objection. Her dismissal as a prospective juror met the guidelines of Witt, supra and was proper. Cf. Green v. State, 147 Tenn. 299, 247 S.W. 84, 88 (1923) (juror properly discharged who entertained religious scruple against passing judgment against those charged with a crime.).
Finally, defendant claims that T.C.A. § 39-2-203 penalizes a defendant who exercises his right to a jury trial in a capital case by exposing him to the possibility of a sentence of death while a defendant who enters a plea of guilty runs no risk of death, and that this is violative of Article I, §§ 6 and 9 of the Tennessee Constitution and the Fifth and Sixth Amendments to the Constitution of the United States. In support of his argument, the defendant relies on United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), which held that where the death penalty only could be imposed if defendant underwent a jury trial the exercise of one's right to a jury was impermissibly burdened. In Jackson a judge could not impose the death sentence.
This is not the situation in Tennessee, where a defendant may waive his right to a jury to determine either guilt, sentence, or both. See Cozzolino v. State, 584 S.W.2d 765 (Tenn. 1979); T.C.A. § 39-2-204. Furthermore, all references to a "jury" in T.C.A. § 39-2-203 (sentencing for first degree murder) apply to a judge. T.C.A. § 39-2-204. In Tennessee a trial judge may thus impose the death penalty; and, therefore a person who pleads guilty can run the risk of the death penalty. See T.R.Crim.P. Rule 11(c)(4).
In the cases cited by defendant, Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984), and State v. Frampton, 95 Wash.2d 469, 627 P.2d 922 (1981), for constitutional and statutory reasons peculiar to each state, the death penalty could be imposed only if one exercised one's right to trial by jury and never if one entered a plea of guilty. Tennessee's statute in this respect is closer to that of Missouri, which recently rejected a similar argument in *72 State v. Bannister, 680 S.W.2d 141, 144 (Mo. en banc 1984).
The defendant's conviction of first degree murder and the sentence of death, and convictions of aggravated rape and armed robbery with consecutive life sentences, are affirmed. The death sentence will be carried out as provided by law on the seventeenth day of December, 1985, unless stayed by appropriate authority. Costs are adjudged against the defendant.
I am authorized to state that Justice Brock concurs in the affirmance of conviction but dissents from the imposition of the death penalty for the reasons expressed in his dissent in State of Tennessee v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981).
FONES, HARBISON and DROWOTA, JJ., concur.
BROCK, J., concurs in part and dissents in part.
|
208 P.3d 361 (2009)
STATE
v.
HILL.
No. 100659.
Court of Appeals of Kansas.
June 5, 2009.
Decision without published opinion. Affirmed.
|
107 F.3d 26
U.S.v.Paramo*
NO. 96-4467
United States Court of Appeals,Eleventh Circuit.
Jan 21, 1997
1
Appeal From: S.D.Fla. , No. 95-00802-CR-KMM
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
|
Rad v IAC/InterActiveCorp (2019 NY Slip Op 07755)
Rad v IAC/InterActiveCorp
2019 NY Slip Op 07755
Decided on October 29, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 29, 2019
Richter, J.P., Gische, Kapnick, Kern, Moulton, JJ.
9946 654038/18
[*1]Sean Rad, et al., Plaintiffs-Respondents,
vIAC/InterActiveCorp, et al., Defendants-Appellants.
Wachtell, Lipton, Rosen & Katz, New York (Marc Wolinsky of counsel), for appellants.
Gibson, Dunn & Crutcher LLP, Dallas, TX (Allyson Ho of the bar of the State of Texas and the District of Columbia, admitted pro hac vice, of counsel), for respondents.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered June 13, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the cause of action for breach of contract except for the merger-related claims asserted by plaintiffs Alexa Mateen and Justin Mateen, and the causes of action for tortious interference with contractual relations and tortious interference with prospective economic advantage, unanimously affirmed, without costs.
The court properly found that CPLR 7601 does not apply to bar plaintiffs' claims. The parties' stock option agreements did not, in clear, explicit and unequivocal language and without resorting to implication or subtlety, bind plaintiffs to an appraisal valuation or limit their remedies in the event of a dispute as to valuation (see Matter of Waldron [Goddess] , 61 NY2d 181 [1984]). Initially, the valuation process contained in the 2014 Equity Incentive Plan was not framed as a dispute-settling mechanism and it was not an adversarial process. The Plan merely stated that Tinder and IAC "shall undertake the process described below." Although the parties agreed that the value of their stock options would be determined by the valuation process, nothing in the agreements provided that the valuation would be binding or final or that the parties would be precluded from fully disputing the valuation in court. Moreover, there is no evidence that any of the plaintiffs participated in creating a list of qualified banks or that they were permitted to select the banks that actually conducted the appraisal. Option holders were not direct signatories to the Plan and were not even mentioned in the valuation procedure. The fact that plaintiff Rad, a holder of stock options, participated in the valuation process is not dispositive, as the Plan did not entitle Rad or any other holder of stock options to do so. In light of the foregoing, the parties' other arguments about the application of CPLR 7601 are moot.
The motion court properly found that issues of fact exist as to whether plaintiffs acquiesced to the transaction at issue. Although plaintiff Rad's unvested options vested immediately upon the merger, and he exercised them all, the equitable defense of acquiescence is "fact intensive, often depending ... on an evaluation of the knowledge, intention and motivation of the acquiescing party" (see Julin v Julin , 787 A2d 82, 84 [Del 2001]).
Contrary to defendants' contention, those plaintiffs whose employment terminated prior [*2]to the merger have standing to assert merger-related claims. While they were obligated to sell their outstanding options upon leaving the company, those options were not valued until the merger.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 29, 2019
CLERK
|
127 U.S. 572 (1888)
ARTHUR'S EXECUTORS
v.
VIETOR.
No. 268.
Supreme Court of United States.
Argued May 2, 3, 1888.
Decided May 14, 1888.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
*573 Mr. Solicitor General for plaintiffs in error.
Mr. Stephen G. Clarke for defendants in error.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is an action at law, commenced in the Superior Court of the city of New York, by Frederick Vietor, George F. Vietor, Carl Vietor, Thomas Vietor, Jr., and Fritz Achelis, against Chester A. Arthur, collector of the port of New York, to recover an alleged excess of duties paid under protest on goods entered at the custom house in New York, from April, 1873, to November, 1873, prior to the enactment of the Revised Statutes.
The goods were hosiery. The appraiser returned the hosiery in some cases as "knit goods, wool hosiery, over 80, 50, 35, less 10 per cent;" in other cases as "worsted knit goods," etc. The collector liquidated the duties on the hosiery at the rate of 35 per cent ad valorem and 50 cents a pound, less a deduction of ten per cent. The plaintiffs protested in writing against the liquidation, "because said merchandise, being merino hosiery, and similar articles made on frames, not otherwise *574 provided for, is only liable to duty under the 22d section of the tariff act of March 2d, 1861, and the 13th section of the tariff act of July 16th, 1862, at the rate of 35 per centum ad valorem, less 10 per cent under the 2d section of the act of June 6th, 1872, as manufactures wholly or in part of wool, or hair of the alpaca, goat, or other like animal."
All of the goods involved contained from 10 to 20 per cent of either wool or worsted, the other component material being cotton. The wool or worsted formed an appreciable portion of the value of the goods. There is nothing in the case to show the value of, or the amount of duties assessed on, the wool and cotton goods, as distinguished from the worsted and cotton goods.
The plaintiffs offered evidence tending to show that the articles imported by them, similar to samples introduced by them in evidence, were stockings, were worn by men, women, and children, and were made on frames. The plaintiffs claimed that the goods were dutiable under § 22 of the act of March 2, 1861, c. 68, 12 Stat. 191, under a provision imposing a duty of 30 per cent on "caps, gloves, leggins, mits, socks, stockings, wove shirts and drawers, and all similar articles made on frames, of whatever material composed, worn by men, women, or children, and not otherwise provided for;" and § 13 of the act of July 14, 1862, c. 163, 12 Stat. 556, which imposed, from and after the 1st of August, 1862, an additional duty of five per cent ad valorem on "caps, gloves, leggins, mits, socks, stockings, wove shirts and drawers, and all similar articles made on frames, of whatever material composed, worn by men, women, and children, and not otherwise provided for;" and the provision of § 2 of the act of June 6, 1872, c. 315, 17 Stat. 231, which enacts that after the 1st of August, 1872, in lieu of the duties imposed by law upon the articles enumerated in that section, there should be paid 90 per cent of the several rates of duty then imposed by law upon such articles severally, "it being the intent of this section to reduce existing duties on said articles ten per centum of such duties, that is to say... . On all wools, hair of the alpaca, goat, and other animals, and all manufactures wholly *575 or in part of wool or hair of the alpaca, and other like animals, except as hereinafter provided."
The duties levied by the collector, and claimed by the defendant at the trial to have been the proper rate of duty, were assessed under § 2 of the act of March 2, 1867, c. 197, 14 Stat. 561, which imposed the following duties: "On woollen cloths, woollen shawls, and all manufactures of wool of every description made wholly or in part of wool, not herein otherwise provided for, fifty cents per pound, and, in addition thereto, thirty-five per centum ad valorem. On flannels, blankets, hats of wool, knit goods, balmorals, woollen and worsted yarns, and all manufactures of every description composed wholly or in part of worsted, the hair of the alpaca, goat, or other like animals, except such as are composed in part of wool, not otherwise provided for, valued at not exceeding forty cents per pound, twenty cents per pound; valued at above forty cents per pound and not exceeding sixty cents per pound, thirty cents per pound; valued at above sixty cents per pound and not exceeding eighty cents per pound, forty cents per pound; valued at above eighty cents per pound, fifty cents per pound; and, in addition thereto, upon all the above named articles, thirty-five per centum ad valorem."
At the trial, after the plaintiffs had rested, the defendant offered evidence tending to show that knit goods are textile fabrics composed of a single thread united in a series of loops, corresponding to the old-fashioned hand-knitting process, and that the plaintiffs' importations were so made; and, further, that all fabrics made on frames are knit goods. The defendant then rested. The plaintiffs then offered evidence tending to show that the term "knit goods" used in trade and commerce has no different or other meaning than its meaning among men in general; that there are knit goods known to trade and commerce which were not made on frames, but which were made by hand, and that there are other goods, as caps, gloves, leggins, mits, socks, stockings, and drawers, made in whole or in part of worsted, worn by men, women, and children, which are made on a frame and knit, and which are also knit by hand; that, while the result of knitting by hand, and *576 of the manufacture on a frame of a fabric consisting of a single thread, is the production of a textile fabric composed of a series of connecting loops which are alike in each case, yet the processes by which they are produced are dissimilar; that the result of the process of manufacturing upon frames and knitting by hand is the same, although the two processes are dissimilar; also, that there are no textile fabrics made on frames which are known in trade and commerce, except fabrics composed of cotton, wool or worsted, silk, linen, or a mixture of these materials. Both parties then rested.
The plaintiffs then moved the court to direct the jury to find a verdict in their favor, which motion was granted. To such ruling the defendant excepted. The jury found a verdict for the plaintiffs. The amount was, by agreement of the parties, adjusted at the custom house, and a judgment was entered for the plaintiffs, including costs, for $1897.96, to review which the defendant has brought a writ of error.
We think that it was error in the court to have directed a verdict for the plaintiffs. The act of 1867 is entitled "An Act to provide increased Revenue from imported Wool, and for other Purposes." Section 1 of the act relates to duties on "unmanufactured wool, hair of the alpaca, goat, and other like animals, imported from foreign countries." Section 2 provides for the following duty: "On woollen cloths, woollen shawls, and all manufactures of wool of every description made wholly or in part of wool, not herein otherwise provided for, fifty cents per pound, and, in addition thereto, thirty-five per centum ad valorem." This clause clearly covers stockings such as some of those in the present case, composed of wool and cotton, because they were made in part of wool.
The next question is, whether they were "herein otherwise provided for," that is, otherwise provided for in that act of 1867. We have recently held, in the case of Arthur v. Butterfield, 125 U.S. 70, 76, that the words "not otherwise herein provided for," in an act providing for customs duties, mean, not otherwise provided for in the act of which they are a part. The words in the present case are "not herein otherwise provided for," which are identical in meaning. Section 2 of the *577 act of 1867 goes on to provide for duties on many manufactured articles made wholly or in part of wool, namely, "women's and children's dress goods and real or imitation Italian cloths, composed wholly or in part of wool;" "clothing ready made, and wearing apparel of every description, and balmoral skirts and skirting, and goods of similar description or used for like purposes, composed wholly or in part of wool;" "webbings, beltings," etc., made of wool, or of which wool is a component material; and carpets of various kinds and carpetings of wool.
The clause of § 2 of the act of 1867, above quoted, which covers "knit goods," expressly excepts "such as are composed in part of wool:" and the clause relating to duties on "wearing apparel of every description ... composed wholly or in part of wool," made up or manufactured wholly or in part by the manufacturer, expressly excepts "knit goods." It is stated in the bill of exceptions that the stockings in question were made on frames, and that all fabrics made on frames are knit goods.
According to the bill of exceptions, some of the goods in question here were properly assessed by the collector, under the act of 1867, at the rate of 50 cents a pound and 35 per cent ad valorem, less ten per cent, and it was improper to direct a verdict for the plaintiffs as to those goods. After the verdict was rendered, on the 10th of December, 1883, and before judgment, the defendant made a motion for a new trial, the decision on which is reported in 22 Blatchford, 39. The motion was denied, on the ground that the articles in question, as stockings made on frames, were specifically made dutiable by that name in the acts of 1861 and 1862, and had been dutiable eo nomine, by different enactments, since 1842; and that the general language of the act of 1867 did not affect the specific description in the acts of 1861 and 1862. Particular reference was made in the decision to the opinion of this court in Vietor v. Arthur, 104 U.S. 498. The goods in that case were imported after the enactment of the Revised Statutes, on the 22d of June, 1874, and were stockings, some of them wholly of worsted and others of cotton *578 and worsted, cotton being the material of chief value, and they were intended to be worn by men, women, and children, and were made on frames, and were also knit goods. The collector had exacted upon them a duty at the rate of 90 per cent of 50 cents a pound and 35 per cent ad valorem, as knit goods, under Schedule L of § 2504 of the Revised Statutes. The importer claimed that they were dutiable as stockings made on frames, worn by men, women, or children, under Schedule M of the same section. Judgment having been entered for the defendant, this court reversed it, on the ground that, as between the descriptions in the two schedules in the same section of the Revised Statutes, the goods must be considered as having been provided for under the designation of stockings made on frames, worn by men, women, or children, in Schedule M, and as not being liable to the higher duty prescribed by Schedule L, because, although Schedule L was broad enough to comprehend them, yet, as Schedule M covered them by a specific designation, and they had been dutiable as stockings made on frames, eo nomine, since 1842, and by four different enactments, they fell within Schedule M. That decision does not apply to the present case, for here the only question is whether the stockings, so far as they have wool in them, being manufactures made in part of wool, and dutiable as such by the act of 1867, were otherwise provided for in that act. It is clear that they were not.
Inasmuch as the verdict directed covered the stockings which contained wool and cotton, and the judgment is a unit, and the direction of a verdict was wrong as to those goods,
The judgment is reversed, and the case is remanded to the Circuit Court with a direction to grant a new trial.
|
FILED
NOT FOR PUBLICATION
MAR 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTON ALBERTO MARTINEZ- No. 14-72692
AVELAR,
Agency No. A091-785-928
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2017
Pasadena, California
Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,** District Judge.
1. Petitioner Milton Alberto Martinez-Avelar (“Martinez-Avelar”), a native
and citizen of El Salvador, seeks review of a 2014 order from the Board of
Immigration Appeals (“BIA”) denying his motion to reopen as untimely and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
number-barred. Martinez-Avelar first entered the United States, without inspection,
in January 1982 when he was approximately 12 years old. At age 13, Martinez-
Avelar joined the Mara Salvatrucha (“MS-13”) gang in Los Angeles, but he has
long since renounced his ties to the gang. He was ordered removed from the United
States in absentia, and he returned to El Salvador in 1993, where he became a
successful teacher and an active member of his church community.
He returned to the United States in 2000, after he was severely injured in a
brutal attack by MS-13 gang members in his home country. In 2012, his only
criminal conviction, for an offense allegedly committed when he was
approximately 19 years old, was vacated on statutory grounds by the Los Angeles
County Superior Court. Since returning to the United States, Martinez-Avelar has
been the primary source of support for his mother, a U.S. citizen suffering from a
number of serious medical issues. His father (from whom his mother is separated)
and two brothers are also U.S. citizens, and the family has no remaining ties to El
Salvador.
Martinez-Avelar is now 47 years old. He returned to the U.S. from El
Salvador approximately 17 years ago. He obtained a certificate in graphic design
from Santa Monica College in 2004 and has been working as a videographer and
2
graphic designer. The record is replete with letters from community and religious
organizations, which testify to the petitioner’s volunteer work and good character.
On October 23, 2003, Martinez-Avelar was denied cancellation of removal,
for which he was statutorily ineligible, and voluntary departure, and he was
ordered removed to El Salvador. The BIA affirmed the order without opinion on
March 31, 2005. On June 5, 2012, petitioner filed a motion to reopen, which the
BIA denied as untimely filed.
On July 14, 2014, Martinez-Avelar filed a second motion to reopen in order
to apply for asylum, withholding of removal, and deferral of removal under the
Convention Against Torture. The BIA denied his second motion as untimely and
number-barred.
Martinez-Avelar now petitions for review of the BIA’s denial of his second
motion to reopen. Because the motion to reopen is untimely and number-barred, and
he has not provided evidence of material changed country conditions in El Salvador,
we are compelled to deny the petition for review.
2. Martinez-Avelar failed to file his motion to reopen within ninety days of
the date the final administrative decision was rendered and, therefore, his motion
was untimely. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citing 8
C.F.R. § 1003.2(c)(2)). Furthermore, “aliens are entitled to file only one motion to
3
reopen.” Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008).
The time and numerical limitations, however, are subject to an exception for
“motions filed for the purpose of applying or reapplying for asylum or withholding
of deportation based on changed circumstances arising in the country of nationality
or in the country to which deportation has been ordered.” Malty v. Ashcroft, 381
F.3d 942, 945 (9th Cir. 2004) (citation and quotation marks omitted). To satisfy the
changed country conditions exception, the petitioner must:
clear four hurdles: (1) he ha[s] to produce evidence that conditions
ha[ve] changed in [his country of origin]; (2) the evidence ha[s] to be
‘material;’ (3) the evidence must not have been available and would not
have been discovered or presented at the previous proceeding; and (4) he
ha[s] to ‘demonstrate that the new evidence, when considered together
with the evidence presented at the original hearing, would establish
prima facie eligibility for the relief sought.’
Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2007) (internal citations omitted).
A. We are required to conclude that the BIA did not abuse its discretion in
concluding that Martinez-Avelar failed to produce evidence of a significant change
in country conditions. Petitioner did not provide any evidence that gang violence
was more severe in 2014 than at the time of his first hearing in 2003. Cf. Sumolang
v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013) (finding no material change in
country conditions due to an alleged outbreak of violence in Indonesia because
4
“such violence was at most no different in degree from the violence that had been
ongoing when [petitioner] left Indonesia in 1997.”).
B. Even if we were to conclude that Martinez-Avelar’s proposed “particular
social group” is a cognizable basis for asylum,1 we would be required to hold that
the BIA also did not abuse its discretion in concluding that any changes in country
conditions were immaterial to his claim. See, e.g., Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1229 (9th Cir. 2016). None of the evidence he offers demonstrates an
increase in violence with respect to individuals in this particular social group.
Because Martinez-Avelar has failed to establish a material change in country
conditions in El Salvador, the BIA did not abuse its discretion in denying his
motion to reopen as untimely and number-barred. Notwithstanding the substantial
equities in Martinez-Avelar’s case, this court does not have the authority to refuse
to affirm the order of the BIA. The petition for review is DENIED.
1
The BIA concluded that his proposed social group was not particularized and
socially distinct. Because we determine that Martinez-Avelar’s motion to reopen is
time- and number-barred, we express no view as to whether his proposed social
group was cognizable or as to whether he established a prima facie case for relief.
5
|
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 12, 2008
No. 08-30018 Charles R. Fulbruge III
Summary Calendar Clerk
EDDIE JAMES JONES
Plaintiff-Appellant
v.
UNKNOWN EMPLOYEES of Kerrville Bus Line; CUSA KBC, LLC, doing
business as Kerrville Bus Co
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:07-CV-526
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Eddie James Jones appeals, pro se, the summary-judgment dismissal of
his in forma pauperis action for, inter alia, breach of contract. (Jones moves for
the appointment of counsel; CUSA KBC d/b/a Kerrville Bus Company (CUSA),
to strike statements from Jones’ motion. Jones’ motion is DENIED; CUSA’s is
DENIED AS UNNECESSARY.)
*
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. 08-30018
An automobile in which Jones was traveling malfunctioned near
Mansfield, Louisiana, while transporting Jones and fellow passengers between
Texarkana, Arkansas, and Lake Charles, Louisiana. Local charitable groups
purchased bus tickets to help Jones and the others return to Texarkana. The
bus never arrived to take Jones to Texarkana on the evening of 14 March 2006.
Returning to the local charities, Jones was provided food and lodging. The next
day, Jones and his traveling companions returned to Texarkana.
In this pro se action, Jones alleged he was abandoned by the bus company
and exposed to the elements. He sought $1 million for breach-of-contract and
emotional-distress damages, and related health-care expenses.
A summary judgment is reviewed de novo. E.g., Rodriguez v. ConAgra
Grocery Products Co., 436 F.3d 468, 473 (5th Cir. 2006). Jones claims diversity
jurisdiction under 28 U.S.C. § 1332. Such jurisdiction exists, however, only
where, inter alia, “the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs”. 28 U.S.C. § 1332(a). The party claiming federal
jurisdiction has the burden of establishing it. E.g., Howery v. Allstate Ins. Co.,
243 F.3d 912, 916 (5th Cir. 2001).
To determine whether Jones met the amount-in-controversy requirement,
a federal court looks to the pleadings and summary-judgment evidence. See St.
Paul Mercury Indem. Co. v. Red Cab. Co., 303 U.S. 283, 288-89 (1938).
[I]f, from the face of the pleadings, it is apparent, to a legal
certainty, that the plaintiff cannot recover the amount claimed or if,
from the proofs, the court is satisfied to a like certainty that the
plaintiff never was entitled to recover that amount, . . . the suit will
be dismissed.
Id at 289. Accordingly, the district court looked to the pleadings and summary-
judgment evidence and found Jones could not recover an amount sufficient to
establish jurisdiction.
2
No. 08-30018
Jones alleges three types of damages: costs for food, lodging, medications,
and bus tickets; medical expenses resulting from the delay to his travel; and
mental anguish.
Pleadings and summary-judgment evidence demonstrate charitable
organizations paid for Jones’ food, lodging, and bus tickets; he does not claim to
have repaid those organizations. Therefore, Jones could not have suffered any
economic damages for these items. Jones claims he paid for medication (“asprin
and pain releivers” [sic]) on the night of his stay in Mansfield. We agree with
the district court that costs for such over-the-counter medications are nominal.
Jones claims his health condition was aggravated by being away from
prescription medications for several days and being subjected to the elements
while waiting for the bus to arrive. Summary-judgment evidence from Jones
included medical bills totaling $4,967 and nursing-home bills totaling $44,440.
These claims lack the good faith basis needed to fulfill the amount-in-
controversy requirement of 28 U.S.C.§ 1332. We agree with the district court
that nothing in the pleadings or summary-judgment evidence suggest these bills
are related to any injury or illness incurred as a result of Jones’ travel delay in
Mansfield.
Jones claims he suffered mental anguish because the bus failed to pick
him up on 14 March 2006 in Mansfield. Jones does not allege he suffered any
direct physical injury. Pleadings and summary-judgment evidence demonstrate
food and shelter were made available to Jones, and that he could not have been
exposed to the elements for more than a few hours because the arrival time on
the hotel receipt for the night of 14 March was 8:09 p.m. Finally, there is no
suggestion in the summary-judgment evidence that Jones feared for his life or
safety during his wait for the bus.
Federal courts sitting in diversity must apply state substantive law.
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 426-27 (1996). In most
3
No. 08-30018
circumstances, plaintiffs claiming mental anguish in Louisiana must prove they
suffered physical injury. Moresi v. State Dep’t of Wildlife & Fisheries, 567 So.2d
1081, 1095-96 (La. 1990). There is no suggestion in the pleadings or summary-
judgment evidence that Jones suffered any physical injury as a result of the bus
not picking him up when expected.
Deviations from this general rule have all required “the especial likelihood
of genuine and serious mental distress, arising from the special circumstances,
which serves as a guarantee that the claim is not spurious”. Id. at 1096. The
evidence does not invite deviation from the general rule. We agree with the
district court that Jones has not adequately alleged a mental-anguish claim.
In sum, it is obvious from the pleadings and summary-judgment evidence,
after reviewing each category of damages, that Jones fails to satisfy the amount-
in-controversy requirement.
AFFIRMED.
4
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