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https://www.courtlistener.com/api/rest/v3/opinions/1251561/ | 552 P.2d 494 (1976)
Terry J. BAIRD, Petitioner,
v.
POWER RENTAL EQUIPMENT, INC., a Colorado Corporation and Jacmun, Inc., a Colorado Corporation, Respondents.
No. C-685.
Supreme Court of Colorado, En Banc.
July 26, 1976.
*495 Marvin Dansky, P. C., Denver, for petitioner.
Yegge, Hall & Evans, John R. Trigg, Denver, for respondents.
GROVES, Justice.
In this case we granted certiorari to review the opinion of the court of appeals which is found in 35 Colo. App. 299, 533 P.2d 941. We affirm.
This was an action for personal injuries. The plaintiff, Baird, was enrolled in a training program conducted by Colorado Laborers and Contractors Education and Training Fund, a school operated by unions and contractors to train young laborers in the construction industry. Baird was injured when he was operating a forklift as a part of this training program. The machine overturned, crushing one of his legs which later was amputated.
The forklift was owned by the defendant Jacmun, Inc. and was leased to the school by the defendant Power Equipment, Inc. *496 Baird sought to predicate liability of the defendants upon their failure to have a seat belt installed on the forklift. At the conclusion of the plaintiff's evidence, the trial court entered a directed verdict in favor of the defendants.
Here, two questions are presented: (1) Was it error for the trial court to refuse to permit the introduction of certain expert testimony; and (2) was it error to refuse to submit the question of liability to the jury?
The experts whose testimony was excluded were Dr. Horace Campbell and Dr. Robert Reed. Dr. Campbell was a surgeon with special expertise in the use of human restraints in automobiles, farm tractors and airplanes. He had not driven nor closely examined the forklift, and he stated that his specialty was not in industrial trucks, but rather in automobiles, farm tractors and airplanes.
Dr. Reed was a physicist, who examined the particular forklift two months following the accident. His testimony concerned defects or possible defects which he found at that time and which might or might not have been in existence at the time of the accident. Some of his testimony was predicated upon hearsay.
The trial court ruled that Dr. Campbell's qualifications were not sufficient to qualify him as an expert to give an opinion on the question of whether a failure to install seat belts constituted a defect or negligence. The testimony of Dr. Reed was excluded because of the time lapse transpiring between time of the accident and that of his inspection and because of hearsay.
The question is not before us as to whether, were we conducting the trial, we would admit the testimony of either of these witnesses. There is a discretion in the trial court in ruling upon the qualifications of an expert and, unless there is an abuse of that discretion, the court's ruling will not be disturbed. Hoffman v. Brown, 143 Colo. 587, 354 P.2d 599 (1960).
We find no error in the conclusion of the trial court that Dr. Reed's testimony was speculative and conjectural and was based upon hearsay. Brayman v. National State Bank, 180 Colo. 304, 505 P.2d 11 (1973); Daugaard v. People, 176 Colo. 38, 488 P.2d 1101 (1971).
The plaintiff would have had the case submitted to the jury on the questions as to whether there was negligence, breach of implied warranty or strict liability. In order for the plaintiff to recover, there must have been either negligence or a defect in the failure to install the seat belt. Bradford v. Bendix-Westinghouse Auto Air Brake Co., 33 Colo. App. 99, 517 P.2d 406 (1973), as to which we denied certiorari in 1974. See Hiigel v. General Motors Corporation, Colo., 544 P.2d 983 (1975). Absent the testimony of Dr. Campbell, no factual basis was laid for a finding of negligence or defect. For us to reverse, therefore, we would be obliged to declare as a matter of law that, absent any statutory requirement, the failure to install a seat belt on a forklift is negligence or constitutes a defect. This we decline to do.
The dissent mentioned the absence of a warning as a basis for the application of the doctrine of strict liability under Restatement (Second) of Torts § 402A. After the dissent was written, we announced Hiigel v. General Motors Corporation, supra, in which we for the first time expressly adopted § 402A. There we said:
"Where there is such a failure to comply with the duty to warn, the effect is that the product may be considered defective when the proximate cause of the injury is the breach of that duty."
Lest it be thought that Hiigel supports the court of appeals' dissent, we direct attention to the fact that there was as there must bea factual basis for the finding of absence of adequate warning. *497 Here, there was no factual basis and, as a result, as a matter of law we should not find a defect by reason of lack of adequate warning.
Judgment affirmed.
PRINGLE, C. J., and ERICKSON, J., do not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1251562/ | 15 Wash. App. 716 (1976)
552 P.2d 1059
THE STATE OF WASHINGTON, Respondent,
v.
JOAN SMITH, ET AL, Appellants.
No. 1832-2.
The Court of Appeals of Washington, Division Two.
June 28, 1976.
James M. Caraher, for appellants.
Donald F. Herron, Prosecuting Attorney, and Joseph D. Mladinov, Special Counsel, for respondent.
REED, J.
Joan Smith and Jean Norris appeal their convictions of unlawful possession of heroin, a controlled substance. The assignments of error challenge (1) the form and time of execution of a warrant to search the Smith house and the authority to search a septic tank behind the *718 residence; (2) the failure of the trial court to order disclosure of a police informant's identity; (3) the failure of the court to order the prosecution to disclose its intended use of certain exhibits; (4) the admission of those exhibits; (5) the propriety of a prosecution question on recross-examination which was allegedly beyond the scope of redirect; (6) the asserted failure of the State to prove that "heroin hydrochloride" is a controlled substance; and (7) the court's denial of defendant Norris' motion for dismissal due to insufficient evidence at the close of the State's case.
We believe the evidence against Jean Norris was sufficient to allow the case to go to the jury, and we affirm both convictions, finding no reversible error.
At 11:30 p.m. on August 7, 1974, Tacoma Police Officer William Garrison obtained a warrant from Municipal Judge DeWitt Rowland to search Joan Smith's dwelling, her vehicles there located, and all persons present at the time of the search. The warrant was executed at about 1:15 a.m. on August 8 by a party of Tacoma police officers and Pierce County deputy sheriffs. The officers properly identified themselves and were admitted to the home by one Gloria Brewster, who began screaming, "The cops, the cops." Immediately, Deputy Thomas Simmons, the first into the house, saw Jean Norris run down a hallway into a bedroom and close the door behind her. Deputies Simmons and Loren Page pursued her. The bedroom door would not open, although it was unlocked and the doorknob turned. Deputy Simmons tried the knob and almost simultaneously hit the door twice with his shoulder. The door flew open, allowing Simmons and Page to enter. Jean Norris was standing across the bedroom; it appeared to Deputy Page she was backing up. Simmons assumed that Norris had been bracing the door shut. Upon entering the room, Deputy Simmons heard a toilet flush in its enclosed bathroom and directed Page to go in. Page entered the bathroom and observed defendant Smith standing naked near the toilet. Smith testified she had just taken a shower, but the officers *719 found her and the shower stall completely dry and no towel in sight.
A subsequent search of the premises yielded a playing card with a bent corner such as often used for "snorting" heroin or cocaine and a quantity of lactose (milk sugar) and brown sugar, substances commonly used to "cut" or dilute heroin. Some of the lactose and the card were in Smith's bedroom where the women were found. The officers then opened a septic tank[1] about 6 feet from the bedroom and pulled out a condom containing another condom and 8 small balloons of heroin, 15.6 grams in all. The packaged heroin was found just below the pipe from the house into the tank and floating on top of the sludge within. The heroin's estimated potential street value was $2,500. Notably, the officers found nothing to establish Norris' residency at the house. She said she had recently arrived from the South and was "just visiting."
[1] We first take up the defendants' challenge to the warrant on the ground it failed to "designate a magistrate to whom it shall be returned", as JCrR 2.10(c) requires. Although defendants are correct as to this omission, defects relating to the return of a search warrant are ministerial and do not compel invalidation of the warrant or suppression of its fruits, absent a showing of prejudice by the defendant. See United States v. Wilson, 451 F.2d 209 (5th Cir.1971); State v. Ronniger, 7 Ore. App. 447, 492 P.2d 298 (1971). Here the warrant was timely returned to the issuing court on August 9, 1974. The defendants demonstrate no prejudice due to the failure of compliance with the rule. Under these circumstances, there is no reversible error.
[2] Defendants next argue that the execution of the warrant at night was per se unreasonable without a specific showing of the need for nocturnal execution. This argument is based on Federal Rules of Criminal Procedure 41(c), which provides that a federal warrant "shall be served in the daytime," unless otherwise authorized upon reasonable cause. However, JCrR 2.10(c), at issue here, *720 and CrR 2.3(c) governing superior court procedure, both omit the federal requirement and specify that the "warrant may be served at any time" within 10 days of issuance. Moreover, it is obvious that Judge Rowland, in signing the warrant shortly before midnight, was aware it might well be executed before daylight. This assignment of error is without merit.
[3] The third reason advanced for suppression of the condom of heroin is that it was seized from the septic tank outside the house, allegedly beyond the physical scope of the warrant. We likewise find no merit in this argument. This situation is controlled by the decision in State v. Dearinger, 73 Wash. 2d 563, 439 P.2d 971 (1968), in which officers went into a yard adjoining the house described in the warrant to retrieve an item thrown from the house. The court stated the applicable rule at page 567:
Where, during the lawful search of a building, the physical senses of the officers lawfully on the premises apprise them that occupants of the searched premises have, during or immediately preceding the search, thrown or removed something from the particular premises, if an article is found and taken during the search in such a place and under such circumstances as to leave a reasonable inference that it had been thrown or placed there during or immediately prior to the search, it constitutes a seizure on or within the premises designated in the warrant.
Here, when a toilet flushed as the deputies entered the bedroom, the search of the septic tank connected to the house was sanctioned by Dearinger.
The defendants next contend the trial court erred in refusing to allow disclosure of and access to the informant who supplied the information used to obtain the warrant. They argue that he could have been interviewed to determine his knowledge of who among the several occupants of the house actually possessed any controlled substances and also whether he might have had a motive for "planting" the heroin in the septic tank prior to search.
[4] The identity of a police informant, not to be called *721 as a witness at trial, need not be disclosed to the defendant absent a showing of an infringement of his constitutional rights. CrR 4.7(f) (2); State v. Cowles, 14 Wash. App. 14. 538 P.2d 840 (1975). The defendants' assertion that the informant could have specified which of the occupants had possession of drugs prior to the search is first, only a supposition and second, irrelevant to the circumstances connecting the defendant Smith to the heroin in her septic tank. Norris running down the hall, the flushing toilet, Smith's presence in the bathroom with the evidence negating her shower story, the playing card and lactose in her bedroom, and, foremost, the heroin found floating on top of sludge right under the septic tank pipe this chain of facts, coupled with the testimony that drugs commonly go down the toilet during police raids, is strong, independent evidence of Smith's guilt regardless of whether the informant saw someone else in possession of heroin earlier. Indeed, Smith does not challenge the sufficiency of this evidence to convict her. Nor does the unsupported speculation that the informant may have had a motive to "plant" the heroin rise to the stature of an affirmative showing of necessity of the informant's identity to the defense. State v. Vanzant, 14 Wash. App. 679, 544 P.2d 786 (1975). Disclosure of his identity was properly withheld.
[5] The exhibits in question are numbers 2 through 5: a bent 4 of spades with a minute, untestable quantity of powder on it; a glass bowl of lactose; two bags of lactose; and a jar of brown sugar. CrR 4.7(a)(1)(v) requires the prosecution to reveal the existence and nature of tangible evidence intended for use at trial. However, defendants have cited no authority for the proposition that the State must divulge its tactical use of exhibits. They have not specified undue prejudice arising from their inability to learn the State's intended use. We find this assignment of error to be without substance. CrR 4.7 does not require the disclosure of prosecution or defense strategy.
Defendants' related argument is that exhibits 2 through 5 were erroneously admitted because they were strongly *722 prejudicial and offered without foundation. The exhibits, all elements of heroin usage, were introduced to show knowledge of the defendants that heroin was on the premises and thereby to support the charge of constructive possession.
[6] Although the State need not prove knowledge to make a prima facie case of possession, it is not precluded from introducing competent, circumstantial evidence tending to link the defendants with the drugs. People v. Sauceda, 199 Cal. App. 2d 47, 18 Cal. Rptr. 452 (1962) (gelatin capsules used to package heroin); Martinez v. State, 473 S.W.2d 520 (Tex. Cr. App. 1971) (syringes); see State v. Harris, 14 Wash. App. 414, 542 P.2d 122 (1975) (gram scale). A sufficient foundation for admission of these exhibits was laid by testimony concerning their possible illicit usage, and the discovery of the heroin itself supplied the relevancy to outweigh any prejudicial impact. The court did not err in admitting them.
The defense called one Timothy Hicks, a resident of the Smith house at the time of the raid, who testified that the lactose in exhibit 4 was purchased as a laxative for his 3-year-old son. He was asked on redirect examination whether he was sure lactose was in the house when the search occurred and if he had seen it in the house. On recross, he was asked, "Did you see any drugs in the house?" An objection that it was beyond the scope of redirect was overruled. Hicks then invoked the Fifth Amendment. Subsequently the jury was cautioned concerning his response. The defendants now urge that the question was beyond the scope and that it lacked a foundation as to time and place.
[7] The objection as to lack of foundation was not raised until a motion for mistrial following the removal of the jury. This ground for objection not having been specified when the question was asked, we need not consider it on review. Palmer v. Massey-Ferguson, Inc., 3 Wash. App. 508, 476 P.2d 713 (1970). It appears, additionally, that the question was within the scope of the direct examination. *723 We agree with the trial court that when the witness was asked about his knowledge of one substance lactose in the house, it opened the door for the question of his observation of other substances.
The defendants' final joint contention is that the State failed to prove an essential element of the crime, namely, that the "heroin hydrochloride," or "heroin," identified from the condom and balloons is a controlled substance listed in RCW 69.50. In view of the fact that RCW 69.50.204(c) (Schedule I) specifically includes "heroin" as a controlled substance, this argument is rather unpersuasive. Moreover, it is now raised for the first time on appeal and need not be considered where, as here, there is no violation of constitutional rights or manifest injustice involved. Puget Sound Marina, Inc. v. Jorgensen, 3 Wash. App. 476, 475 P.2d 919 (1970).
[8] We now turn to the sufficiency of the evidence to convict Jean Norris, placed in issue by her motion to dismiss following the prosecution's case in chief. When reviewing the denial of such a motion, we must accept the truth of the State's evidence and draw all reasonable inferences in favor of the State. State v. Randecker, 79 Wash. 2d 512, 487 P.2d 1295 (1971). We must not weigh the evidence, but are limited "to a determination of whether the state has produced substantial evidence tending to establish circumstances from which the jury could reasonably infer the fact to be proved." State v. Dugger, 75 Wash. 2d 689, 690, 453 P.2d 655 (1969).
Applying these criteria to the instant case, we summarize the evidence as follows:
1. Upon entering the house, Deputy Simmons saw Norris "breaking" down the hallway "rapidly, I would almost say it was a run."
2. She closed the bedroom door behind her.
3. Deputy Simmons tried the doorknob, thought the door was unlocked, but found that it would not open. He forced the door and saw Norris "back up against" the bedroom wall across the room. He assumed she had been holding the *724 door shut. Deputy Page saw her "backing up or at least in a retreat motion" when the door opened.
4. Deputy Simmons heard the toilet flush in the bathroom, Joan Smith was found next to the toilet, and a quantity of heroin was located in the septic tank under the inlet pipe.
5. Concomitants of heroin usage were found in Smith's bedroom.
We have commented upon the sufficiency of this evidence to convict Joan Smith. The jury could reasonably have concluded that Smith possessed the heroin in her room and attempted to conceal it by flushing it down the toilet and into the tank. This inference is strengthened by the location of the drugs in the tank and the sensible assumption that such a valuable quantity would not be concealed in such a place absent the compelling circumstance of a police raid.
[9] The State obtained an instruction and argued on the theory that Jean Norris, by obstructing entry to the bedroom, was an aider or abettor of Joan Smith's possession and, therefore, could be convicted as a principal as defined by RCW 9.01.030:
Principal defined. Every person concerned in the commission of a felony, ... whether he directly commits the act constituting the offense, or aids or abets in its commission, ... is a principal, and shall be proceeded against and punished as such.
To sustain a conviction, this statute requires that the person charged as an aider or abettor must be ready to assist or must assist the perpetrator of the crime by his presence. State v. Palmer, 1 Wash. App. 152, 459 P.2d 812 (1969). Aiding or abetting requires more than mere knowledge or physical presence at the scene of a crime. State v. J-R Distribs., Inc., 82 Wash. 2d 584, 512 P.2d 1049 (1973).
Here, the evidence before the court on the motion to dismiss was sufficient to support the jury's reasonable inference that Jean Norris first ran down the hall to alert Joan Smith and then blocked the door in an attempt to aid Smith to maintain her possession of the heroin by discharging *725 it into the septic tank for future recovery. Such an interpretation of the evidence would constitute Norris an aider or abettor of Smith's criminal conduct. People v. Ortiz, 208 Cal. App. 2d 572, 25 Cal. Rptr. 327 (1962).
It is true that there was an innocent explanation for Norris' actions, i.e., that she was merely trying to protect Smith's modesty by holding the bedroom door. Norris was not precluded from relating this explanation,[2] arguing it to the jury as she did or from renewing her motion in arrest of judgment after trial. However, our role on review is not to weigh the evidence or its conflicting interpretations. It is enough, for purposes of a motion to dismiss, that this jury could have reasonably concluded that Norris' actions were intended to assist Smith's criminal conduct.
The convictions are affirmed.
PETRIE, C.J., and PEARSON, J., concur.
NOTES
[1] The tank was entered by simply moving a board and cement lid.
[2] Jean Norris elected not to testify. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1251565/ | 220 Kan. 341 (1976)
552 P.2d 931
STATE OF KANSAS, Appellee,
v.
DAVID L. WILSON, Appellant.
No. 48,016
Supreme Court of Kansas.
Opinion filed July 23, 1976.
Don W. Riley, of Wichita, argued the cause and was on the brief for the appellant.
Christopher Randall, assistant district attorney, argued the cause, and Curt T. Schneider, attorney general, and Stephen M. Joseph, assistant district attorney, were with him on the brief for appellee.
The opinion of the court was delivered by
FROMME,, J.:
This is a direct appeal after a jury verdict convicting appellant David L. Wilson of first degree murder. Wilson was convicted of killing Walter Wayne Wirts on the night of December 28, 1967, in Wichita, Kansas. Appellant questions the sufficiency of the evidence to support the verdict.
The evidence presented by the state consisted of a confession by the accused; testimony from several witnesses who saw or spoke to appellant prior to and following the crime; testimony from three individuals who spoke to the victim by telephone on the night of the murder; testimony from a pathologist who examined the victim's body; and testimony from various police officers who took part in the investigation of the murder, in the arrest and in the interrogation of appellant.
Appellant was arrested by law enforcement officers from Kansas and Michigan on May 15, 1973, in Flint, Michigan. Appellant was advised of his rights at the time of his arrest pursuant to the rules laid down in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. He was transported to a Saginaw, Michigan police station by automobile. There appellant signed a waiver of rights form and made a statement to the police denying knowledge of the Wirts murder which had occurred five and one-half years earlier.
A short time later, in a second statement, appellant changed his story and confessed he had killed Wirts. Appellant stated he and *343 a companion, Lamont Estrada, visited a Wichita bus station on the evening of December 28, 1967. At the station they met Wirts and agreed to perform homosexual acts with him for a fee of $25.00. The trio traveled to Wirts' apartment where the victim and appellant engaged in homosexual conduct. Appellant stated that after engaging in the homosexual conduct he refused to continue and Wirts then produced a knife and threatened appellant unless he submit to further sexual conduct. According to appellant's story he pretended to comply with the wishes of Wirts and then grabbed the knife and stabbed Wirts to death. Appellant said he and Estrada then cut open a suitcase belonging to Wirts and removed some of the victim's clothing. Appellant and Estrada fled the scene together. They left Wichita a few days later and after traveling to Colorado and California appellant and Estrada separated. Appellant took up residence in Michigan, where he was arrested.
The state produced three witnesses who spoke with Wirts over the telephone in his apartment on the night of the homicide. Each witness testified that Wirts told them he had visitors at his apartment. They overheard voices in the background during their conversations and Wirts discussed having a sum of money in his possession at the time which he had collected for his employer. He was holding it for deposit the following day. Wirts told at least one witness over the phone that the money was in his suitcase. It was reasonable to infer that those in his apartment at the time of these calls overheard what Wirts had said.
Frances Kiger, a tenant in a rooming house where the appellant and Estrada lived at the time testified that at midnight on December 28, 1967, she observed appellant and Estrada returning to their apartment. She testified appellant's clothing was blood-covered. On the following morning she discovered appellant's shaving kit hidden in a closet and inside the kit she found a large sum of currency, a ring bearing the Masonic emblem, a wrist watch, and a money clip monogrammed with the letter "W". The ring and money clip were identified by others as belonging to the victim Wirts.
Mrs. Kiger further testified that she showed the shaving kit and its contents to the landlady, Charlotte Page. Mrs. Page testified she remembered seeing the shaving kit filled with currency and a watch. She did not see the ring or money clip, but did see a Masonic ring later the same day.
Dr. William Ekart, the coroner's pathologist, related his medical *344 opinion as to the manner in which Wirts was killed and stated that the cuts on Wirts' hands indicated he had attempted to defend himself. Dr. Ekart illustrated his explanation with photographs of the body of the murder victim.
On appellate review the question is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence was sufficient to form the basis for a reasonable inference of guilt. (State v. Austin, 209 Kan. 4, 495 P.2d 960.) The evidence set out above is clearly sufficient to sustain appellant's conviction for first degree murder.
The appellant attacks the jury's verdict of guilty of murder in the first degree and asks that the verdict be set aside and a new trial granted. As a basis for such an attack he points out that under the information and instructions of the trial court the state was allowed to proceed with the trial for first degree murder on duplicate theories of a "willful, deliberate and premeditated killing" and "a killing in the perpetration or attempt to perpetrate a robbery." Appellant contends that this is impermissible for in such case it becomes impossible to determine which of the two theories the jury found was supported by the evidence. It is argued that some members of the jury may have found appellant guilty of a premeditated killing and others a felony murder, and that this would not be a unanimous verdict as required by our law.
The two cases cited by appellant are not in point. One relates to a verdict which failed to specify the particular degree of the crime and the other relates to a verdict arrived at on an instruction which failed to require proof of intent necessary to complete the crime charged.
Although the question has not previously been presented to this court in its present form we do find authority in our cases which indicates the duplicate charge of both premeditated and felony murder may be proper. See State v. Moffitt, 199 Kan. 514, 431 P.2d 879, and State v. Clark, 204 Kan. 38, 460 P.2d 586.
In Moffitt the defendant was charged in Count II with first degree murder, both premeditated and felony murder. A motion by the defendant to require the state to elect to prosecute on either premeditated or felony murder was denied. The jury returned a verdict of first degree murder and felony murder. The jury's verdict was upheld. It was pointed out that proof of murder in the first degree requires the specific intention to kill with deliberation and premeditation. Satisfactory proof may be by direct proof of *345 such an intention or it may be supplied by proof of killing while in the commission of a felony. Proof of a killing in the perpetration of a felony is held tantamount to proof of premeditation and deliberation which would otherwise be necessary to constitute murder in the first degree.
In Clark this rationale was again approved. Mr. Justice Kaul speaking for the court, after referring to Moffitt, said:
"The purpose of the felony murder rule is to relieve the state of the burden of proving premeditation and malice when the victim's death is caused by the killer while he is committing another felony. The rationale being that the killer's malignant purpose is established by proof of the collateral felony...." (204 Kan. pp. 43, 44.)
This being the case it follows that the question is one of proof necessary to support a verdict of first degree murder. When an accused is charged in one count of an information with both premeditated murder and felony murder it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilt by reason of the killer's malignant purpose. In such case the verdict is unanimous and guilt of murder in the first degree has been satisfactorily established. If a verdict of first degree murder can be justified on either of two interpretations of the evidence, premeditation or felony murder, the verdict cannot be impeached by showing that part of the jury proceeded upon one interpretation of the evidence and part on another.
The above holding meets with general acceptance in other jurisdictions in the absence of a statute which requires the jury to agree to the mode in which a murder was committed. See People v. Milan, 9 Cal. 3d 185, 107 Cal. Rptr. 68, 507 P.2d 956; People v. Sullivan, 173 N.Y. 122, 65 N.E. 989; State v. Hazelett, 8 Or. App. 44, 492 P.2d 501; and State v. Flathers, 57 S.D. 320, 232 N.W. 51, 72 A.L.R. 150.
Appellant complains that the trial court improperly excluded his testimony regarding statements by his accomplice, Lamont Estrada. Estrada was not available as a witness; his whereabouts were unknown. Appellant during the trial attempted to relate statements made by Estrada to the appellant which were excluded by the trial court as hearsay. The first statement was to the effect that Estrada told him he was in possession of embarrassing photographs which Estrada would publish if the appellant did not accompany Estrada to Wichita where the crime was committed.
*346 If an utterance previously made out of court is offered in evidence merely for the purpose of establishing what was then said, and not for the purpose of establishing the truth of the statement, the testimony is not hearsay. If relevant it is admissible through the person who heard it. See K.S.A. 60-460; State v. Ritson, 215 Kan. 742, 748, 529 P.2d 90; and State v. McClain, 220 Kan. 80, 551 P.2d 806. The testimony as to the embarrassing photographs was not offered to prove the truth of the matter asserted by Estrada but was offered simply as an explanation of why appellant accompanied Estrada. The appellant complains of other instances in the trial where the court excluded his testimony concerning statements purportedly made by Estrada. According to appellant's testimony, after visiting Wirts in his apartment, both Estrada and the appellant left for the purpose of putting appellant to bed. Appellant was intoxicated. Estrada stated he was going to return to the Wirts apartment.
Although some of the testimony proffered may have been improperly excluded by the trial court as hearsay any prejudice to appellant's trial would not be of reversible magnitude. The testimony was on peripheral matters and any prejudice to appellant was far outweighed by the later ruling of the trial court, at the insistence of appellant's counsel, permitting the appellant to testify to these same matters as well as to an extrajudicial confession by Estrada that he committed the crime with which the appellant was charged. It is a general rule that an extrajudicial confession by a stranger, that he committed the crime with which the defendant is charged, is hearsay and hence is not admissible to exculpate the defendant. That the declarant is dead, and his testimony therefore unobtainable, does not alter the rule. (Wharton's Criminal Evidence, [13th Ed.] Vol. 2, § 270, pp. 16, 17, 18; cf. State v. Bailey, 74 Kan. 873, 87 P. 189.) The appellant is not in a favorable position to complain of the court's rulings on the admissibility of this evidence.
Appellant complains of photographs and slides which were introduced and admitted in evidence showing the physical condition of the victim's body when found. The testimony from the doctor who performed the autopsy discloses that these photographs were relevant and material to illustrate the nature and extent of the wounds inflicted. In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the *347 wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome. (State v. Soverns, 215 Kan. 775, 529 P.2d 181; State v. King, 219 Kan. 508, 548 P.2d 803.)
Appellant contends that his conviction should be reversed because of the improper use of a confession taken by means of both audio and video recordings. These duplicate tapes were used during the trial. One was a video recording which did not have the sound track because of a malfunction in the machine at the time the confession was given. The other was the ordinary audio tape recording taken at the same time with a separate machine as a back-up precaution. The video tape showing indicated to the jury the demeanor of the parties involved in the giving and taking of the statement. The audio tape supplied the verbal communication. This was not an undue duplication of evidence and falls within the discretionary realm of the trial judge. The record in this case indicates the recordings were admitted within the proper procedural safeguards outlined in State v. Milow, 199 Kan. 576, 433 P.2d 538. There is no question raised over the validity of the recordings and the identity of the appellant as a participant. The audio and video recordings were of sufficient clarity and quality to assist the jury in their deliberations even though portions thereof may not have been first quality reproductions of what was said and done.
When the authenticity of audio and tape recordings of a statement made by the defendant is established to the satisfaction of the trial court and found to be of sufficient clarity and quality to assist the jury in its deliberations they may be admitted in evidence even though portions thereof may not be first quality reproductions of what was said and done. Their admissibility rests largely in the discretion of the trial court. We find no abuse of discretion in their admission in this case.
In addition the appellant questions the findings of the trial court that appellant's statement was freely and voluntarily given. He points to evidence that he was a bisexual or homosexual individual with personality disturbances, that he was taking pain medication and that he was under internal and external stress. He disputes the findings of a psychiatrist who testified that the confession was a product of a free and voluntary will.
It is the duty of the trial court, before admitting a purported confession into evidence, to conduct a proceeding separate and *348 apart from the jury to determine from the evidence as a preliminary matter whether the confession was freely and voluntarily made by the accused. (State v. Milow, supra.) The inquiry must be based upon a consideration of the totality of the circumstances, and the trial court should make the decision in the first instance as to whether the confession was the product of a rational intellect and a free will; if so the confession may properly be admitted in evidence. The trial court in the present case conducted the hearing, heard considerable evidence and its judgment will not be overturned by this court.
In addition to the foregoing points discussed in this opinion, industrious counsel for appellant has raised seven more procedural points having to do with the attitude and conduct of the prosecuting attorney in the course of his examination of witnesses, the admissibility of certain testimony and the scope of proper rebuttal testimony introduced at the trial. We have examined the record on each of these points in light of the arguments presented thereon. We do not find error in any of these seven additional points which would approach reversible error.
The trial court did exercise proper control over the attorneys who participated in this trial. The court admonished the prosecutor in certain instances when he made over-zealous comments, and the court admonished the jury to disregard these comments. Certain questions by the state calling for inadmissible evidence were objected to by defense counsel during the course of the trial, the objections were sustained and the jury admonished. At one place in the record it appears the prosecutor indicated his dissatisfaction because objections had been sustained to five or six straight questions. The judge properly advised the attorney as to the reasons therefore. Under the circumstances appearing upon review of the record it must be said that any error was cured by the admonitions and instructions of the trial court. See State v. McClain, 216 Kan. 602, 533 P.2d 1277, and State v. Warbritton, 215 Kan. 534, 527 P.2d 1050.
As to those remaining points which bear upon the admissibility of evidence we wish to point out that this court will not reverse a trial judge on an issue of admissibility of evidence except for error which amounts to abuse of discretion in a ruling which affects the substantial rights of the party complaining. (State v. Winston, 214 Kan. 525, 520 P.2d 1204.) It is apparent from the record and *349 briefs presented to this court that the appellant had a fair trial, the verdict is supported by substantial competent evidence and no reversible error has been demonstrated on appeal.
Judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1251567/ | 543 S.E.2d 91 (2000)
247 Ga. App. 33
CLINCH COUNTY BOARD OF EDUCATION
v.
HINSON.
Hinson
v.
Clinch County Board of Education.
Nos. A00A2226, A00A2227.
Court of Appeals of Georgia.
November 28, 2000.
Certiorari Denied June 4, 2001.
*92 Helms & Helms, Jack J. Helms, Jr., for appellant.
Barham, Dover, Bennett, Miller & Sherwood, Souglas L. Mutert, Berrien L. Sutton, Homerville, for appellee.
Harben & Hartley, Sam S. Harben, Jr., Daniel R. Murphy, amici curiae.
*93 PHIPPS, Judge.
David Hinson was employed by the Clinch County Board of Education as Media and Technology Coordinator. At the request of school administrators, Hinson placed a videocamera in a girls' locker room during high school basketball games in an attempt to apprehend a thief. Although no thefts occurred, video tapes captured images of female students changing their clothing and recorded their conversations. Following disclosure of the tapes' existence, the county school superintendent suspended Hinson and recommended that his contract of employment be terminated. A hearing requested by Hinson under the Fair Dismissal Act was conducted by a tribunal composed of active and retired school administrators from various Georgia counties.[1] Based on its findings of fact, the tribunal recommended that Hinson's contract of employment be terminated. The county board of education approved the tribunal's findings and recommendation, as did the state board acting in its appellate capacity. On further appeal, however, the superior court reversed.
In Case No. A00A2226, the county board of education appeals. The board charges the superior court with error in failing to give deference to the local board's decision under the applicable standard of appellate review. In Case No. A00A2227, Hinson cross-appeals. He contends that the local board's decision should have been reversed for reasons not given by the superior court in its order. Finding merit in the appeal but not the cross-appeal, we hold that the superior court erred in reversing the board's termination of Hinson's employment.
Hinson was employed by the Clinch County Board of Education for a number of years. He was a system-wide media and technology coordinator. He was regarded as a very effective administrator, and his evaluations were uniformly excellent.
During a girls' basketball game at Clinch County High School, a thief gained entrance to the locker room used by the visiting team and stole money and jewelry worth almost $2,000. The suspected point of entry was near the locker room entrance. The theft was discussed in a meeting between School Resource Officer Lonnie Webb (a Clinch County deputy sheriff), high school principal Dr. Kay Hinson (Hinson's wife), and assistant principal Donald Tyson. At the meeting, Webb suggested that an attempt be made to apprehend the thief by placing a videocamera in the visiting girls' locker room during a basketball game. Webb advised Dr. Hinson that this would be legal so long as the camera was aimed at the locker room entrance.
Hinson was asked to meet with Dr. Hinson, Tyson, and Webb and, at the meeting, was informed of Webb's plan. Hinson was given no legal advice, but was told that the videocamera should be focused on the locker room entrance and asked if this was feasible. After Hinson, Tyson, and Webb went to the locker room and determined that a videocamera could be positioned in a locker so as to focus on the entranceway, a decision was made to proceed with the plan. Although Hinson characterized the decision as a "collective" one, Dr. Hinson acknowledged that the final decision-making authority was hers.
One afternoon, Hinson and Webb installed Hinson's personal videocamera inside a wire-mesh locker in the visiting locker room and caused it to record activities in the locker room before, during, and after a girls' basketball game. Hinson repeated this procedure during another girls' basketball game two weeks later. Altogether four two-hour tapes were made, two on each date. The camera was focused so as to record benches and lockers used by players and cheerleaders, as well as the locker room entrance. The videotapes showed some of the female students removing their outer garments and dressing for the game. Some students were captured by the camera in underclothing. The camera was visible to some but not all of the students. During the latter game, a cheerleader for the visiting team unplugged the camera, but Hinson reconnected it before recording the final tape. None of the female students had any prior knowledge of the videotaping or gave their prior consent.
*94 On direct examination, Hinson testified that he meant to aim the camera at the entrance to the locker room and did not intend to record any images of female students using the lockers. But during cross-examination, he testified that he knew female students would be undressing in the locker room and intended to capture them on videotape because he was unsure whether one of them might have been the thief.
Without erasing the tapes, Hinson put them in a storage room adjacent to his office to which a limited number of school personnel had access. The tapes thereby became available to be used by teachers for re-taping. A student found one of the tapes in a teacher conference room, viewed it, and disclosed the contents to his mother. The school superintendent later obtained the tape. Upon reviewing the tape, the local board of education turned the matter over for criminal investigation. After the remaining tapes were found by a Georgia Bureau of Investigation investigator in Hinson's office and in the adjacent storage room about two years after the recordings were made, Hinson was indicted by a grand jury on felony eavesdropping charges. Although a subsequent grand jury dismissed the charges, the cheerleader who had unplugged the camera filed suit against the school board and others because of the taping. When Webb's involvement in the videotaping was disclosed, he was dismissed.
Hinson's claim that he did not know that the students would be dressing in the area where the camera was focused was found by the tribunal to be lacking in credibility. In this regard, the members of the tribunal noted that they had visited the locker room with the consent of the parties and observed that a videocamera located where Hinson placed it surely would record the benches intended for use by students dressing. The tribunal and later the local board concluded that the acts and omissions of Hinson in causing or participating in causing the videotapes to be made, retaining the videotapes, and failing to ensure that they were erased, destroyed, or otherwise safeguarded constituted "incompetency" under OCGA § 20-2-940(a)(1) and "other good and sufficient cause" justifying termination of his employment under OCGA § 20-2-940(a)(8). The state board noted these findings and determined there was evidence supporting the local board's decision.
The superior court concluded otherwise and reversed. The court ruled that in videotaping the girls' locker room Hinson had merely carried out a task assigned to him by school administrators; that there was no evidence of any policy, directive, or training that would have required Hinson to erase the tapes; and that the evidence was insufficient to support a finding that he was custodian of the tapes. Relying on an out-of-state case, the court also held that Hinson could not be dismissed for unfitness or incompetence absent evidence showing that his conduct produced disruption or impairment of discipline or of the teaching process and that his retention posed a significant danger of harm to either students, school employees, or others who might be affected by his actions. The court found no such evidence. The court also determined that the local board of education had abused its discretion by arbitrarily and capriciously singling out Hinson for dismissal without disciplining any other tenured employee of the board.
1. Sitting as an appellate body, the superior court is bound to affirm the decision of the local board if there is any evidence to support it.[2] In matters such as this, the superior court should not interfere with a local board's administration of its schools unless the board has grossly abused its discretion or acted arbitrarily or contrary to law.[3]
(a) In ruling that Hinson was merely performing an assignment given him by school administrators, the court ignored evidence that he had violated one of their instructions by focusing the videocamera at dressing areas *95 as well as at the locker room entranceway.
(b) Although in his position as media and technology coordinator Hinson was not generally responsible for storage and security of videotapes, he made the decision as to what to do with these videotapes after recording them. Some of the videotapes were found in his office approximately two years after they were made. This constitutes evidence that he was their custodian.
(c) The fact that Hinson's decisions concerning retention and storage of the videotapes did not violate any policy or directive does not preclude his dismissal. The school could hardly be expected to have a preestablished policy concerning disposition of videotapes depicting female students undressing in high school locker rooms.
(d) The superior court erred in holding that Hinson could not be dismissed for incompetence unless the evidence showed that his actions disrupted or impaired discipline or teaching or that he posed a significant danger to others. Oakland Unified School Dist. v. Olicker,[4] the out-of-state case cited by the court in support of this, is of course not binding in Georgia. While the Olicker factors are certainly relevant in determining whether actions by a teacher support a charge of incompetence, they are not absolute prerequisites to a finding of incompetence under Georgia law. Moreover, the factors identified in Olicker apply to teachers, and the responsibilities for the position occupied by Hinson show that he was an administrator.
Even if the evidence was insufficient to establish Hinson's incompetence, given his otherwise exemplary career record, the local board did not abuse its discretion in finding the existence of "other good and sufficient cause" for his termination. As recognized by the state board, the tribunal and local board dismissed Hinson for both incompetence and other good and sufficient cause. The state board affirmed the local board's decision.
(e) Under the evidence, it cannot be said that the local board singled out Hinson for greater discipline than others similarly situated. The evidence shows that Hinson and Webb were solely responsible for the positioning of the videocamera so as to capture the images of female students undressing in the locker room. Evidence was presented showing that tenured employees other than Hinson who were aware of the taping assumed that the videocamera would not be positioned in such manner. Both Hinson and Webb were dismissed from their employment.
2. The issues presented in the cross-appeal either have been resolved in Division 1, are moot, or have not been preserved for review in this court because they were not raised in superior court.[5] The superior court did not err in failing to reverse the board's decision based on the grounds asserted in the cross-appeal.
Judgment affirmed in Case No. A00A2227. Judgment reversed in Case No. A00A2226.
JOHNSON, C.J., and ELLINGTON, J., concur.
SMITH, P.J., not participating.
NOTES
[1] See OCGA § 20-2-940(e)(1).
[2] Ransum v. Chattooga County Bd. of Ed., 144 Ga.App. 783, 785(5), 242 S.E.2d 374 (1978).
[3] See D.B. v. Clarke County Bd. of Ed., 220 Ga. App. 330, 333(1), 469 S.E.2d 438 (1996); Terry v. Houston County Bd. of Ed., 178 Ga.App. 296, 297, 342 S.E.2d 774 (1986).
[4] 102 Cal. Rptr. 421, 428-429, 25 Cal. App. 3d 1098 (1972).
[5] See Young v. Scott, 212 Ga.App. 572, 574(1), 442 S.E.2d 768 (1994). Although Hinson incorporated the statement of facts in his state board brief into his superior court brief, the only issues raised before the superior court were whether the local board's decision was arbitrary and whether there was evidence to support its findings and conclusions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1251624/ | 543 S.E.2d 527 (2001)
INVESTORS TITLE INSURANCE COMPANY, Plaintiff,
v.
Helen Beal MONTAGUE f/k/a Helen R. Beal, Defendant.
No. COA00-120.
Court of Appeals of North Carolina.
April 3, 2001.
*528 Horack, Talley, Pharr & Lowndes, P.A., by Robert B. McNeill, Charlotte, for plaintiff-appellant.
Kennedy Covington Lobdell & Hickman, by Roy H. Michaux, Jr., Charlotte, for defendant-appellee.
GREENE, Judge.
Investors Title Insurance Company (Plaintiff) appeals a 17 November 1999 order granting summary judgment in favor of Helen Beal Montague f/k/a Helen R. Beal (Defendant) and denying Plaintiff's motion for summary judgment.
On 27 May 1982, Defendant executed a Deed of Trust (the Deed) to secure a Deed of Trust Note (the Note) on a loan made by the City of Charlotte to Defendant in the amount of $65,200.00. Defendant used the loan to purchase "Unit # 8" in the Churchill Condominium (the Condo). On 12 June 1984, Defendant sold the Condo to Edna V. Johnson (Johnson). As part of the purchase price for the Condo, Johnson entered into an assumption agreement with Banker's Mortgage Corporation to assume the balance owing on Defendant's loan (the assumption agreement). The assumption agreement provided Defendant would "not be released of liability unless stated otherwise." From the record, it appears the assumption agreement did not provide for the release of Defendant from liability.
Johnson died intestate in Mecklenburg County on 28 November 1993. Donald S. Gillespie, Jr. (Gillespie) was appointed as commissioner for the sale of Johnson's real property. On 7 March 1995, Gillespie sold the Condo to Norman A. Holmes (Holmes) for $64,000.00 and the Mecklenburg County Superior Court fixed 17 March 1995 as the last date for an upset bid. No upset bids were filed and on 21 March 1995, the superior court confirmed the sale of the Condo.
In 1996, the City of Charlotte instituted foreclosure proceedings on the Condo. Plaintiff provided title insurance to Holmes on the Condo, and pursuant to Plaintiff's insurance policy with Holmes, Plaintiff was required to pay off the Note.[1] Foreclosure proceedings were never completed and Plaintiff was assigned the Deed and the Note in August 1997. On 30 October 1997, Plaintiff informed Defendant by letter that it had "received an [a]ssignment of the Note and [the] Deed" and demanded Defendant pay "$64,907.26 excluding interest from June 11, 1996." On 9 September 1998, Plaintiff again contacted Defendant by letter and requested Defendant pay the balance of the Note. Plaintiff further informed Defendant that if the balance of the Note was not paid in full within five days, Plaintiff had the option of recovering attorney's fees in the event Plaintiff brought suit to enforce the Note.
Defendant made no payments on the Note and Plaintiff instituted suit against Defendant on 30 September 1998. Defendant's answer alleged: Defendant never received demand for payment on the Note, other than a demand from Plaintiff; Defendant was not a party to the foreclosure proceedings and did not have actual notice to such proceedings; and Plaintiff has not offered to assign the Deed and the Note to Defendant upon payment. Defendant moved for summary judgment on 14 October 1999 and Plaintiff moved for summary judgment on 5 November 1999. On 16 November 1999, at a hearing on the parties' motions for summary judgment, the trial court denied Plaintiff's motion for summary judgment and allowed Defendant's motion for summary judgment.
The dispositive issue is whether an assignee of a note and deed of trust, who seeks to collect from the mortgagor, is required to assign the deed of trust to the mortgagor as a condition of collecting on the note.
Defendant argues Plaintiff must assign Defendant the Deed in order to collect payment on the Note. Plaintiff, however, contends *529 that it is under no obligation to assign the Deed to Defendant upon payment of the Note. We agree with Defendant.
A person who assumes a mortgage becomes the principal debtor and the mortgagor becomes the surety on the debt, Wachovia Realty Investments v. Housing, Inc., 292 N.C. 93, 105, 232 S.E.2d 667, 674 (1977), and, thus, the mortgagor "remains liable to the mortgagee as the debtor to whom the credit was directly extended," Brown v. Turner, 202 N.C. 227, 229, 162 S.E. 608, 609 (1932). In the event of a default, the mortgagee, or the holder of the promissory note, has the right to either bring an action in personam, choosing to go after the debtors, or may bring an action in rem, choosing to foreclose on the property. Id. at 230, 162 S.E. at 609. If the mortgagee brings an action against the mortgagor and the mortgagor pays the debt, the mortgagor is subrogated to the rights of the mortgagee against the person who assumed the mortgage. Hatley v. Johnston, 265 N.C. 73, 83, 143 S.E.2d 260, 267 (1965). The mortgagor has several options of seeking reimbursement. He may bring an action to foreclose on the property, sue to recover the land, or bring an action against the person who assumed the mortgage. Id.
In this case, there is no dispute Defendant remains liable on the Note. If Defendant is called on to pay the Note, however, she is entitled to all the rights and privileges contained in the Deed, including the right to foreclose on the property named in the Deed. Thus, Defendant's obligation to pay pursuant to the Note is conditioned upon her obtaining the right to foreclose on the property named in the Deed. If Plaintiff is not willing to assign its rights in the Deed to Defendant, summary judgment for Defendant is proper. If Plaintiff is willing to assign its rights in the Deed to Defendant, it is entitled to collect from Defendant on the Note and summary judgment would not be proper. Although Plaintiff argues in its brief to this Court that it has no obligation to assign the Deed to Defendant, as a condition of collecting on the Note, Plaintiff nowhere concedes it is not willing to assign the Deed to Defendant if that is what is required to collect on the Note.[2] Accordingly, this case must be remanded for a determination of whether Plaintiff is willing to assign the Deed to Defendant.
Defendant asserts two other grounds to support summary judgment in her favor. We reject each of these arguments. First, the City of Charlotte had no obligation to provide Defendant with notice of the foreclosure proceeding, as mandated by section 45-21.16(a), because the foreclosure never progressed to a hearing before the clerk of the superior court. Second, when Plaintiff paid the City of Charlotte and took assignment of the Note and the Deed it did not release the property from the Deed. Thus Defendant, as the mortgagor, was not released from her obligation on the Note. See N.C.G.S. § 45-45.1(2) (1999) (mortgagor is released "to the extent of the value of the property released").
Remanded.
Judges MCCULLOUGH and HUDSON concur.
NOTES
[1] Plaintiff insured Holmes against any outstanding debts or liens on the Condo.
[2] It does appear, however, it would be unlikely for Plaintiff to assign the Deed to Defendant, as this would result in the foreclosure of property which it insured. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1303723/ | 469 S.E.2d 188 (1996)
266 Ga. 638
HOBSON
v.
The STATE.
No. S96A0777.
Supreme Court of Georgia.
April 29, 1996.
*189 James D. Hobson, Oglethorpe, pro se.
J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Sr. Asst. Atty. Gen., Decatur, Michael J. Bowers, Atty. Gen., Dept. of Law, Atlanta, for the State.
CARLEY, Justice.
James D. Hobson was tried before a jury and found guilty of malice murder. He appeals from the judgment of conviction and sentence of life imprisonment entered by the trial court on the jury's guilty verdict.[1]
1. Hobson shot the victim during an argument over a coat which Hobson had bought from the victim. Two eyewitnesses testified that they saw no aggressive behavior on the part of the victim. From the evidence, a rational trier of fact was authorized to find proof, beyond a reasonable doubt, of Hobson's guilt of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Bennett v. State, 265 Ga. 38, 39(1), 453 S.E.2d 458 (1995); Kitchen v. State, 263 Ga. 629, 630(2), 436 S.E.2d 645 (1993); Wiseman v. State, 249 Ga. 559, 560(1), 292 S.E.2d 670 (1982).
2. Hobson moved for a continuance so that he could hire counsel to represent him during trial. Hobson enumerates as error the denial of this motion. A review of the record reveals that the case had been pending for some time, Hobson had already dismissed his private attorney, and the motion for continuance was not made until after the jury was selected, at which time Hobson made vague complaints about his court-appointed attorney. Under the circumstances, the trial court was authorized to conclude that Hobson was attempting to use the discharge and employment of other counsel as a dilatory tactic, which was "the functional equivalent of a knowing and voluntary waiver of appointed counsel. In such instances, the trial court may proceed to trial with the defendant representing himself. [Cit.]" Staples v. State, 209 Ga.App. 802, 804(3), 434 S.E.2d 757 (1993). See also Adams v. State, 210 Ga.App. 151, 153(1), 435 S.E.2d 514 (1993); Jefferson v. State, 209 Ga.App. 859, 434 S.E.2d 814 (1993); Tillman v. State, 184 Ga.App. 210, 211(2), 361 S.E.2d 66 (1987). Fulfilling its important responsibility in this area, the trial court fully apprised Hobson of the dangers of self-representation. Staples v. State, supra at 804(3), 434 S.E.2d 757. *190 After Hobson represented himself for a short time, the trial court did not err in permitting appointed counsel to resume representation pursuant to Hobson's own request.
3. When giving a recharge on the definitions of the offenses to be considered by the jury, pursuant to its request, the trial court did not abuse its discretion by not also recharging on self-defense and accident. Appling v. State, 256 Ga. 36, 38(2), 343 S.E.2d 684 (1986); Williams v. State, 249 Ga. 6, 9(6), 287 S.E.2d 31 (1982).
4. This court will not consider other alleged errors argued in Hobson's brief, but not included in the enumerations of error. Doss v. State, 262 Ga. 499, 500(1), 422 S.E.2d 185 (1992).
Judgment affirmed.
All the Justices concur.
NOTES
[1] The homicide occurred on December 26, 1993 and Hobson was indicted on March 15, 1994. The guilty verdict was returned on July 21, 1994 and the judgment of conviction and life sentence also were entered on that day. Felder's motion for new trial was filed on August 22, 1994 and denied on September 14, 1995. His notice of appeal was filed on October 6, 1995 and the case then was docketed in this court on February 1, 1996. On March 25, 1996, the appeal was submitted for decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1303725/ | 527 N.W.2d 274 (1995)
In the Matter of the Application for DISCIPLINARY ACTION AGAINST Colin A. BAILEY, a Member of the Bar of the State of North Dakota.
DISCIPLINARY BOARD OF the SUPREME COURT OF the STATE OF NORTH DAKOTA, Petitioner,
v.
Colin A. BAILEY, Respondent.
Civ. Nos. 940360, 940361, 940396 and 940397.
Supreme Court of North Dakota.
February 8, 1995.
*275 Vivian E. Berg, Disciplinary Counsel, Bismarck, for petitioner.
Colin A. Bailey, pro se.
PER CURIAM.
This is a disciplinary action for disbarment of Colin A. Bailey, an attorney licensed in this state since 1967. Three separate petitions for discipline are consolidated in this proceeding. Bailey has stipulated or admitted to the facts on which the petitions are based and only argues against disbarment.
I
A
In the first petition, Bailey admitted to violating the North Dakota Rules of Professional Conduct in his handling of a divorce case. Bailey received notice of a hearing, but failed to appear or notify his client. In Bailey's absence, the trial court entered an interim order for judgment and an income withholding order requiring the client to pay $2,000 per month in support. The client retained other counsel, and three months later, an amended order was entered setting support at $1,150 per month. Bailey admitted to violations of Rules 1.3 and 1.4, North Dakota Rules of Professional Conduct, for his failure to act with reasonable diligence and for failing to adequately communicate with his client.
B
In the second petition, Bailey represented a client in an appeal to this Court. A motion to dismiss the appeal was served upon Bailey shortly after notice of appeal. Bailey did not respond to the motion or advise his client. This Court dismissed the appeal, notifying both Bailey and the client. The client tried unsuccessfully to petition this Court for a rehearing. The Hearing Body of the Disciplinary Board found these actions to be violations of Rules 1.3 and 1.4, N.D.R. Prof.Cond., and Rule 1.16(a)(2) for failure to terminate representation.
In the answer to the petition, Bailey raised his past medical condition of depression. He claimed he received treatment which had effectively combatted the depression, and at present, there was no basis for a finding of disability. Bailey requested the board impose a peer review program, coupled with continued medical treatment, as conditions for continuing to practice law. This Court ordered Bailey examined by a medical expert, Dr. David A. Sharbo, to evaluate Bailey's psychiatric condition.
Based on records of Bailey's psychiatric care, past disciplinary actions, and personal interviews with Bailey, Dr. Sharbo concluded the depression was in full remission. Dr. Sharbo found Bailey was "disabled during discrete periods of time in the past"; but treatment by use of medication and regular psychiatric appointments had rendered Bailey "not medically disabled from performing the responsibilities of his licensed profession."
The board followed Bailey's suggestion and imposed a two-year period of probation. Probation was conditioned on:
"(1) Mr. Bailey's consent;
"(2) Mr. Bailey continuing to seek medical treatment for depression through a qualified psychiatrist and that he (Mr. Bailey) cause to be furnished proof of such continued consultation and treatment, together with prognosis as to continued remission or return of depression;
"(3) That Mr. Bailey maintain his workload at a manageable level; that his practice be under the supervision of another attorney (at Bailey's expense) to be approved by the chairman of the Disciplinary Board, which supervising attorney shall submit periodic reports to Disciplinary Counsel not less than monthly or such *276 other period as the supervising attorney and Disciplinary Counsel may mutually agree;
"(4) That Mr. Bailey, during the probation period, shall in all particulars closely observe and maintain compliance with the North Dakota Rules of Professional Conduct;
"(5) Mr. Bailey shall pay costs and expenses of the disciplinary proceedings as may be assessed."
Bailey consented to probation and twice met with the Chair of the Disciplinary Board to discuss implementing the order of probation. Bailey suggested an attorney in his office building as the supervising attorney. The board chair later discovered the proposed supervising attorney could not supervise Bailey because the attorney's malpractice insurance would not cover those activities. Bailey agreed to obtain malpractice coverage. Bailey did not respond to inquiries on his search for insurance. The proposed supervising attorney informed the board that Bailey had moved out of the office building making it unfeasible to supervise Bailey's activities.
On October 11, 1994, the board issued an order to show cause why Bailey's probation should not be revoked. At the hearing, Bailey argued that he had in fact complied with the order of probation. Bailey said another attorney was currently supervising him. This previously disciplined attorney was neither approved by the chair, nor had he submitted periodic reports on Bailey's status, as required by the probation. Further, Bailey had still not paid the costs imposed upon him. The board recommended the probation be revoked for failure to comply with the order.
C
The third petition involved two separate instances of misconduct by Bailey. In the first, Bailey admitted to failing to attend a scheduled deposition and failing to notify his client of the deposition. As a result, opposing counsel moved for sanctions and costs. Bailey did not respond to the motion or notify his client. The trial court ordered sanctions of $656.50, and a dismissal with prejudice if there was no reply within thirty days. Bailey again did not pay the sanction or notify his client. The client secured another lawyer, learned of the sanction, and dismissal of the case was prevented.
In the second matter, Bailey admitted to failing to file a complaint after the client instructed him to do so, and Bailey falsely telling the client he had filed the complaint.
The board concluded these two incidents violated Rules 1.3, 1.4, and 1.16(a)(2), N.D.R. Prof.Cond. The board also found Bailey violated Rule 1.2(a)(3), of the North Dakota Procedural Rules for Lawyer Disability and Discipline, because he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Bailey admitted the allegations, but disagreed with the recommended disposition, disbarment.
In addition to the misconduct listed above, Bailey also admitted to the following aggravating circumstances:
"(a) Prior disciplinary offenses, as follows:
Private Reprimand by the Disciplinary Board of the Supreme Court, September 26, 1984
Public Reprimand and costs, Disciplinary Action Against Bailey, 392 N.W.2d 828 (N.D.1986)
Six month' suspension, Disciplinary Action Against Bailey, 408 N.W.2d 737 (N.D.1987)
Public Reprimand and costs, Disciplinary Board of the Supreme Court of the State of North Dakota v. Bailey, 472 N.W.2d 472 (N.D.1991)
"(b) Additionally, two disciplinary proceedings (File No. 1943-E-91 and 2048-E-92) are currently pending before the North Dakota Supreme Court.
"(c) A pattern of misconduct has been established by Bailey in his neglect of client matters and misrepresentation to them.
"(d) Deceptive practices during the disciplinary process. Mr. Bailey presented to Dr. David A. Sharbo on April 23 and 28, 1993, and at hearing June 23, 1993, before a Hearing Body in File No. 2048-E-92 *277 that he has been stable regarding his depression since mid-1992. Dr. Sharbo's determination was that Mr. Bailey was not medically disabled from performing the responsibilities of his licensed profession. Mr. Bailey did not disclose the neglect and misrepresentation to clients in the instant matters either to Dr. Sharbo or the Hearing Body and affirmatively presented himself as able to practice law."
II
The Disciplinary Board recommended disbarment under the North Dakota Standards for Imposing Lawyer Sanctions, 4.41(c) and 8.1(b). Under the factors to be considered in imposing sanctions, the board found Bailey's lack of diligence and his prior discipline orders to be applicable.
"4.4 Lack of Diligence
Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving a failure to act with reasonable diligence and promptness in representing a client:
4.41 Disbarment is gen[e]rally appropriate when:
* * * * * *
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client."
Rule 4.4, NDSILD.
"8.0 Prior Discipline Orders
Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving prior discipline.
8.1 Disbarment is Generally Appropriate When a Lawyer:
* * * * * *
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession."
Rule 8.0, NDSILD.
Bailey argues the bar is failing to address mental health issues if it simply disbars lawyers suffering from that disability. Under Rule 5.1, North Dakota Procedural Rules for Lawyer Disability and Discipline, this Court ordered a medical expert, Dr. Sharbo, to evaluate Bailey to determine if he was under any disability. That rule sets the procedure in disability proceedings. If the lawyer is under a disability, the lawyer is transferred to inactive status. This transfer is not discipline. Inactive status merely protects the public while giving the disabled lawyer an opportunity to rehabilitate.
The undisputed evidence indicates Bailey is under no disability. Both Dr. Block, Bailey's treating psychiatrist, and Dr. Sharbo, concluded Bailey was in full remission from his depression. Bailey himself contends he is not disabled. Dr. Sharbo conducted interviews with Bailey to reach this conclusion at the same time Bailey was engaged in the misconduct set forth in the third petition. Thus, Bailey's misconduct was not a result of his medical condition.
Finally, the Disciplinary Board complied with Bailey's requests for peer review and supervision in the past. As is evident from the revocation of probation, Bailey does not appear to find such programs worth his effort. According to Bailey, maintaining contact with the board regarding his activities is a "useless and token gesture."
III
In her brief to this Court, Disciplinary Counsel requested restitution and costs for the three petitions. The Disciplinary Board recommended restitution of $956.50 under the third petition and costs and expenses of $5,691.89 for the three proceedings. Disciplinary counsel requests additional restitution of $2,550 under the first petition. The board reviewed the Hearing Body's recommendation for the first petition, but deleted restitution from its report.
The board did not state its reason for deleting the restitution, and in the future, the *278 board should state its reason. It appears, however, the restitution was deleted because recovery of the $2,550 was more properly the subject of a malpractice action. The damages incurred by the client in the first petition are not of such a definite causal relation to allow restitution. See Martinson Bros. v. Hjellum, 359 N.W.2d 865, 875 (N.D.1985). We adopt the board's recommendations and allow restitution, costs, and expenses as reported.
IV
Colin Bailey has engaged in repeated violations of the North Dakota Rules of Professional Conduct and has a record of prior discipline orders. We, therefore, order his disbarment from the practice of law. In addition, we impose costs and expenses in the amount of $5,691.89, and restitution in the amount of $956.50.
VANDE WALLE, C.J., and SANDSTROM, MESCHKE, LEVINE and NEUMANN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1017165/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE ROBERT CUMMINGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(CR-03-1143)
Submitted: August 31, 2005 Decided: September 20, 2005
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Tara M. Lyons, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Robert Cummings pled guilty to being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2000), reserving his right to appeal the
district court’s denial of his motion to suppress evidence seized
during a traffic stop. He was sentenced to thirty months of
imprisonment. On appeal, he claims: (1) the district court erred
in denying his motion to suppress; and (2) the district court erred
in sentencing him under a mandatory application of the federal
sentencing guidelines, in violation of United States v. Booker, 125
S. Ct. 738 (2005).
This court reviews the district court’s factual findings
underlying a motion to suppress for clear error and reviews its
legal determinations de novo. Ornelas v. United States, 517 U.S.
690, 699 (1996); United States v. Rusher, 966 F.2d 868, 873 (4th
Cir. 1992). When a suppression motion has been denied, this court
construes the evidence in the light most favorable to the
government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998). After having reviewed the transcript of the hearing on the
motion to suppress, the parties’ briefs, and the materials
submitted in the joint appendix, we find no reversible error.
Cummings also asserts that the district court’s mandatory
application of the sentencing guidelines was plain error under
Booker. Because this claim was not preserved for appellate review,
- 2 -
it is reviewed for plain error, and Cummings has the burden of
showing that the error affected his substantial rights. United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005). There is no
indication in the record that the district court would have imposed
a lower sentence under an advisory guideline system; therefore,
Cummings cannot make the necessary showing. Id. at 224-25.
Accordingly, we affirm Cummings’ conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1251548/ | 344 S.C. 48 (2001)
543 S.E.2d 541
The STATE, Respondent,
v.
Nakia JONES, Appellant.
No. 25257.
Supreme Court of South Carolina.
Heard January 11, 2001.
Decided March 12, 2001.
*51 Senior Assistant Appellate Defender Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, and Assistant Attorney General Melody J. Brown, all of Columbia, and Solicitor Warren B. Giese, of Columbia, for respondent.
WALLER, Justice:
Jones was convicted of three counts of armed robbery, and possession of a firearm during the commission of a violent crime; he was sentenced to life imprisonment without parole pursuant to S.C.Code Ann. § 17-25-45 (Supp.2000), commonly known as the "Two-Strikes" law.[1] We affirm.
*52 FACTS
At 3:30 AM on the morning of June 29, 1997, the three victims in this case, Dwayne Wright, Theodore Wheeler and Ricardo Wheeler, were robbed at gunpoint by an unknown assailant.
In late July 1997, approximately three and one-half weeks after the robbery, police showed each victim, independently, a photographic line-up of six individuals; all three victims identified Jones as the person who robbed them. Jones was arrested and charged with three counts of armed robbery, possession of a firearm during commission of a violent crime, and failure to stop for a blue light. He was convicted of the armed robbery and possession of a firearm counts; he was found not guilty of failing to stop for a blue light. He was sentenced to life imprisonment without parole under S.C.Code Ann. § 17-25-45 (Supp.2000), the Two-Strikes law, due to his prior conviction of a "most serious" offense.[2]
ISSUES
1. Was Jones properly tried for three counts of armed robbery?
2. Is a sentence of life imprisonment without parole after commission of one "most serious" offense constitutionally permissible?
3. Did the court err in refusing a Telfaire[3] charge?
1. THREE COUNTS OF ARMED ROBBERY
Jones was separately indicted for the armed robbery of each victim. He contends, citing State v. Waller, 280 S.C. 300, 312 S.E.2d 552 (1984), the three counts should have been "rolled *53 into a single count" as the goods were taken from three victims simultaneously. Waller does not control the present case.
In Waller, the defendant broke into an apartment occupied by three roommates and stole property belonging to each. The solicitor decided to aggregate the value of the items taken and charge Waller with grand larceny. On appeal, Waller contended the value of property taken from more than one owner could not be aggregated so as to sustain a conviction for grand larceny. This Court affirmed Waller's conviction under prior case law which suggested a prosecutor could elect to prosecute for one larceny or several larcenies. However, the Waller Court decided to follow the majority of cases which hold the larceny of property from different owners at the same time and place constitutes one larceny. The Court held, "henceforth, the larceny of property from different owners at the same time and at the same place shall be prosecuted only as a single larceny." 280 S.C. at 301, 312 S.E.2d at 553.[4]
Waller is inapplicable here.
The rationale for the single larceny rule is that "the act of taking is one continuous act or transaction, and since the gist of the offense is the felonious taking of property, the legal quality of the act is not affected by the fact that the property stolen belonged to different persons." D.H. White, Single or Separate Larceny Predicated Upon Stealing Property From Different Owners at the Same Time, 37 A.L.R.3d 1407, 1410 § 2 (1971) (emphasis supplied). Larceny is the misdemeanor offense of taking or carrying away of goods valued at less than $1000.[5]
The fundamental distinction between larceny and armed robbery, in our view, lies in the fact that armed *54 robbery is a crime of violence. See S.C.Code Ann. § 16-1-60 (Supp.2000). Although armed robbery is contained in Chapter 11 to Title 16 (Offenses Against Property), the fact that it is a crime of violence makes it more of an offense against the person, thereby warranting its treatment as a separate offense as to each person who was threatened with bodily harm by a deadly weapon. See State v. Mahaley, 122 N.C.App. 490, 470 S.E.2d 549, 551 (1996), citing 77 CJS Robbery § 2 (1994) (while robbery can be classified as an offense against both person and property, it is primarily an offense against the person); State v. Harris, 8 N.C.App. 653, 175 S.E.2d 334, 336 (1970) (gist of armed robbery is not the taking of personal property, but a taking or attempted taking by force or putting in fear by the use of firearms or other dangerous weapon); People v. Jones, 217 Ill.App.3d 175, 160 Ill.Dec. 184, 576 N.E.2d 1138 (1991), rev'd on other grounds 149 Ill.2d 288, 172 Ill.Dec. 401, 595 N.E.2d 1071 (1992) (notwithstanding armed robbery is captioned as a "Crime Against Property," it is a forcible felony carried out against a person).
A case directly on point is State v. Gratz, 254 Or. 474, 461 P.2d 829 (1969), in which the Oregon Supreme Court addressed a contention identical to Jones':
The defendant relies upon State v. Clark, 46 Or. 140, 80 P. 101, wherein this court held that the stealing of several articles belonging to more than one person at the same time and place by one act constitutes but a single offense. This holding is in accord with the weight of authority and is based on the reasoning that, since there was but one overt act (the theft), a rule to the contrary would lead to incongruous and inhumane results. Anno. 28 A.L.R.2d [1182] 1187, s 3.
However, in the cases dealing with armed robbery, where the gravamen of the offense is an assault upon and a theft from the person, ORS 163.280, the courts hold that each assault and theft from a different person, although occurring at the same time and place, is a separate crime.... With few exceptions, not here pertinent, in crimes against the person when contrasted with crimes against property there are as many offenses as individuals affected. And, while it may be said that in armed robbery a single act may put several persons in fear, yet, in order to consummate the *55 crime, that act must be followed by the act of taking from each person money or personal goods.
461 P.2d at 830 (internal citations omitted). See also Commonwealth v. Levia, 385 Mass. 345, 431 N.E.2d 928 (1982) (although successive larcenies from multiple victims must be charged and punished as a single larceny if part of a single larcenous scheme, where crimes of violence are committed against several victims, multiple charges and punishments are appropriate); Sullivan v. Commonwealth, 16 Va.App. 844, 433 S.E.2d 508 (1993) (essential character of common-law robbery is violence against a person for purpose of theft such that appropriate unit of prosecution is determined by number of persons from whose possession property is taken by force or intimidation); Camacho v. State, 825 S.W.2d 168 (Tex.App. 1992) (what separates robbery from theft is the human element).
In accordance with the above-cited cases, we hold that, where there is a threat of bodily injury to each person from whom property is stolen,[6] the defendant may be charged with separate offenses. See Joseph T. Bockrath, Prosecution for Robbery of One Person As a Bar to Subsequent Prosecution for Robbery of Another Person Committed at the Same Time, 51 A.L.R.3d 693, § 2 (1973) (noting that ordinarily, where several persons are robbed at the same time, the offender may be indicted and convicted for the robbery of each person as a distinct offense). Accordingly, Jones was properly charged with three separate counts of armed robbery.
2. CONSTITUTIONALITY OF TWO-STRIKES LAW
Jones contends S.C.Code Ann. § 17-25-45 (Supp.2000), the "Two-Strikes" law under which he was sentenced, is unconstitutional. He asserts sentencing under the statute 1) violates *56 separation of powers,[7] 2) constitutes cruel and unusual punishment,[8] 3) results in an equal protection violation,[9] 4) shifts the burden to the defendant to prove the constitutionality of the statute, and 5) constitutes an ex post facto violation.[10] We disagree.
Initially, this Court held in State v. Burdette, 335 S.C. 34, 515 S.E.2d 525 (1999), that Section 17-25-45 does not violate the separation of powers doctrine. We stated, "[u]nder the mandatory sentencing guidelines, the prosecutor can still choose not to pursue the triggering offenses or to plea the charges down to non-triggering offenses. Choosing which crime to charge a defendant with is the essence of prosecutorial discretion, not choosing which sentence the court shall impose upon conviction." 335 S.C. at 40-41, 515 S.E.2d at 528-529. Further, we found the matter of sentencing if convicted of a triggering offense to be a matter within the province of the legislature. Id. Accordingly, under Burdette, Jones' sentences pose no separation of powers problem.
Jones next asserts his life sentence constitutes cruel and unusual punishment. We disagree.
The cruel and unusual punishment clause requires the duration of a sentence not be grossly out of proportion with the severity of the crime. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Pursuant to Solem, this Court reviews three factors in assessing proportionality: (1) the gravity of the offense compared to the harshness of the penalty; (2) sentences imposed on other criminals in the same jurisdiction; and (3) sentences for the same crime in other jurisdictions. State v. Kiser, 288 S.C. 441, 343 S.E.2d 292 (1986).[11]
*57 Initially, we agree with the Court of Appeals that given the "most serious" nature of armed robbery, when coupled with a prior most serious offense, the gravity of the offense is not disproportionate to a sentence of life without parole. See also U.S. v. D'Anjou, 16 F.3d 604, 613-14 (4th Cir.1994) (life imprisonment without parole for drug conspiracy, possession, and distribution offenses not cruel and unusual); Smallwood v. Johnson, 73 F.3d 1343, 1346-47 (5th Cir.1996) (50 year sentence for misdemeanor theft, made felony by recidivist statute, not grossly disproportionate); U.S. v. Hill, 30 F.3d 48, 50-51 (6th Cir.1994) (mandatory life imprisonment without parole upon third felony drug conviction not grossly disproportionate); Simmons v. Iowa, 28 F.3d 1478, 1482-83 (8th Cir. 1994) (mandatory life imprisonment without parole for aiding and abetting restraint and torture of child not grossly disproportionate).
Further, we find Jones' sentence proportionate to the sentences imposed on other criminals in this state. Jones' sentence of life without possibility of parole for his second conviction of a "most serious" offense is the same as that imposed on any other criminal with a second conviction of a "most serious" offense, such that it is not disproportionate to the sentences imposed on other South Carolinians.
Finally, as to sentencing in other jurisdictions for the same crime, life sentences for armed robbery under recidivist laws are not unique to South Carolina. See United States v. Carroll, 207 F.3d 465 (8th Cir.2000) (defendant's sentence of life imprisonment for role in credit union robbery under three-strikes law not cruel and unusual); Young v. State, 245 Ga.App. 684, 538 S.E.2d 760 (2000) (imposing life without parole for armed robbery under recidivist statute, O.C.G.A. § 17-10-7); State v. Oliver, 162 N.J. 580, 745 A.2d 1165 (2000) (life without parole for armed robbery under three-strikes law not cruel and unusual); People v. Ayon, 46 Cal.App.4th 385, 53 Cal.Rptr.2d 853 (1996) (life sentence without parole for armed *58 robberies, with prior felony convictions, not cruel and unusual); United States v. Farmer, 73 F.3d 836 (8th Cir.1996) (life without parole for armed robbery coupled with three prior violent felonies not cruel and unusual). See also Ortiz v. State, 266 Ga. 752, 470 S.E.2d 874, 876 (1996) (upholding Two-Strikes law imposing life without parole upon conviction of a second "most serious" offense against eighth amendment challenge). In sum, we find Jones' sentence withstands Eighth Amendment scrutiny.
As to Jones' equal protection claim, his sole allegation is that "minorities are affected most" by section 17-25-45. There is absolutely nothing in the record supporting this assertion.
When the issue is the constitutionality of a statute, every presumption will be made in favor of its validity and no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution. State v. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997). Appellants have the burden of proving the statute unconstitutional. Id. Here, given that Jones has offered no evidence in support of his claim, he has utterly failed in his burden. Accord, State v. Oliver, 745 A.2d at 1170 (defendant failed to demonstrate equal protection violation in three strikes law as there was no showing it had a disparate impact on minorities).[12]
Next, Jones claims his sentence "in effect shifted the burden to [him] to prove the unconstitutionality of the statute." We find Jones' argument is so conclusory that it has been abandoned. See Solomon v. City Realty Co., 262 S.C. 198, 203 S.E.2d 435 (1974) (where only passage in brief relating to issue appealed was single conclusory statement which left unargued the error assigned by exception, issue was abandoned); Muir v. C.R. Bard, Inc., 336 S.C. 266, 519 S.E.2d 583 (Ct.App.1999) (issue is deemed abandoned on appeal if it is *59 argued in a short, conclusory statement without supporting authority). Accordingly, we decline to address the merits of this issue.
Finally, Jones asserts sentencing under section 17-25-45 violates the ex post facto law because "it changed the punishment for a crime in a manner that said punishment did not exist previously." We disagree.
Where conduct in committing offenses which trigger recidivist features of sentencing provisions occur after the sentencing provision's effective date, there is no ex post facto violation. State v. Dabney, 301 S.C. 271, 391 S.E.2d 563 (1990) (amendment of statute lengthening period of time previous convictions could be used to increase punishment for subsequent DUI offense did not violate ex post facto clause as applied to drivers who committed offenses for which they were being sentenced after effective date of statute's amendment).
Here, Jones' armed robberies occurred subsequent to passage of section 17-25-45 and, as such, there is no ex post facto violation. Accord Phillips v. State, 331 S.C. 482, 504 S.E.2d 111 (1998) (no ex post facto violation for legislature to enhance punishment for later offense based on prior conviction, even though enhancement provision was not in effect at time of prior offense).
To the extent Jones contends the Two-Strikes law changes the consequences of his 1996 plea to ABIK, he is incorrect. See Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (holding that sentencing as an habitual criminal is not viewed as a new jeopardy or additional penalty for an earlier crime; rather it is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one). Accord State v. Oliver, supra.
In sum, we find no constitutional violation in application of the Two-Strikes law to Jones.
3. TELFAIRE CHARGE
Finally, Jones asserts the trial court erred in refusing his requested charge on identification pursuant to United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). We disagree.
In State v. Motes, 264 S.C. 317, 215 S.E.2d 190 (1975), this Court recognized that the court in Telfaire was dealing with *60 the "one witness" identification rule, and the model instruction there was designed to focus the attention of the jury on the identification issue and minimize the risk of conviction through false or mistaken identification. See also State v. Simmons, 308 S.C. 80, 417 S.E.2d 92 (1992) (in single witness identification cases, court should instruct jury burden of proving identity of defendant rests with the state). The present case does not involve a single witness identification and, given the witnesses' degree of certainty, there appears very little likelihood of mistaken identification. We find a Telfaire charge was unnecessary.
Jones' remaining issue is affirmed pursuant to Rule 220(b)(1), SCACR and the following authorities: State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980); State v. Gambrell, 274 S.C. 587, 266 S.E.2d 78 (1980) (photographic and physical identifications reliable under totality of circumstances). Jones' convictions and sentence are
AFFIRMED.
TOAL, C.J., MOORE, BURNETT and PLEICONES, JJ., concur.
NOTES
[1] Under section 17-25-45(A)(1), upon conviction for a most serious offense, a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has one or more prior convictions for a most serious offense. Armed robbery is a most serious offense. S.C.Code Ann. § 17-25-45(C)(1).
[2] Jones' 1996 conviction for assault and battery with intent to kill is a "most serious" crime under the statute. His 1993 convictions for assault and battery of a high and aggravated nature and aiding an escape were not used for enhancement.
[3] United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972).
[4] The State asserts the rationale for the holding in Waller was that the property the defendant took from any one roommate was insufficient to support a charge of grand larceny. Contrary to the State's contention, a footnote in Waller indicates there was sufficient evidence to permit the jury to find the value of the property taken from one of the roommates exceeded $200.00. 280 S.C. at 301, 312 S.E.2d at 553, n. 1.
[5] S.C.Code Ann. § 16-13-30(A) (Supp.2000). Grand larceny is the felonious offense of taking and carrying away of goods valued at $1000 or more. S.C.Code Ann. § 16-13-30(B) (Supp.2000).
[6] In the present case, there is evidence that the victims were separately threatened. Ricardo Wheeler and Theo Wheeler each testified that Jones had specifically held the gun to their head and or side, and Theo testified Jones threatened to shoot him if he didn't have any more money. Although there is no indication Jones specifically pointed the gun at Dwayne Wright's head or side, Wright testified Jones made him throw his shoes to the ground, and fired the gun one time when Wright and the Wheeler brothers were moving too slowly to suit him.
[7] U.S. Const. art. I, II, III; S.C. Const. art. 1, § 8.
[8] U.S. Const. amend VIII; S.C. Const. art. 1 § 15.
[9] U.S. Const. amend. XIV; S.C. Const. art. 1, § 3.
[10] U.S. Const. art. 1, § 10; S.C. Const. art. 1, § 4.
[11] It is questionable, in light of the United States Supreme Court's opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), whether the stringent three-factor Solem inquiry remains mandated in "cruel and unusual punishment" cases. See State v. Brannon, 341 S.C. 271, 533 S.E.2d 345 (Ct.App.2000) (finding the 3-prong inquiry of Solem no longer applicable and requiring only a threshold comparison of the gravity of the offenses against the severity of the sentence). However, we need not decide the matter here since, in our view, even the more stringent test of Solem is met in this case.
[12] Moreover, we find no cases holding recidivist statutes or similar laws violate equal protection. See e.g. Grant v. State, 770 So.2d 655 (Fla.2000) (Florida's recidivist statute held not to violate equal protection); State v. Thorne, 129 Wash.2d 736, 921 P.2d 514 (1996) (Washington's Persistent Offender Accountability Act passes the rational basis test and does not violate equal protection). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1695722/ | 719 N.W.2d 799 (2006)
2006 WI App. 156
STATE EX REL. WATKINS v. BERGE[1].
No. 2005AP910.
Court of Appeals of Wisconsin.
June 22, 2006.
Affirmed.
NOTES
[1] Petition for Review Filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1240885/ | 255 Minn. 12 (1959)
95 N.W. (2d) 303
M.J. MERICKEL AND ANOTHER
v.
ERICKSON STORES CORPORATION.
No. 37,589.
Supreme Court of Minnesota.
February 27, 1959.
*13 Meagher, Geer, Markham & Anderson, O.C. Adamson II, and William R. Nelson, for appellants.
Dorsey, Owen, Scott, Barber & Marquart and Henry Halladay, for respondent.
MATSON, JUSTICE.
Appeal from a judgment entered in an action of unlawful detainer pursuant to a directed verdict of not guilty for defendant.
Plaintiffs and defendant corporation own tracts of land parallel to and adjoining one another in southeast Minneapolis, where Central Avenue and East Hennepin Avenue meet. On November 6, 1956, plaintiffs leased a 20-foot strip of their land to defendant for a term of 20 years. The lease provided that defendant was to construct a building as described by a letter dated November 5, 1956, and a plot plan incorporated into the lease. This letter set forth the parties' agreement as to the details of the building defendant was to build. The plot plan showed that the building was to be 45 feet by 20 feet in size. One-half of the building, that is, the southerly 10 feet, would be on defendant's property and the other one-half of the building would be on the strip leased to defendant by plaintiffs. Defendant was to use the one-half of the building on its own property, and have service station driveways over the strip leased to it by plaintiffs while the other half of the building was to be used by plaintiffs or their tenant.
The letter of November 5, 1956, signed by both parties provided that plaintiffs authorized as a first step in construction immediate commencement of the razing of plaintiffs' drive-in building then standing. Construction work did begin immediately. On or about November 11, 1956, plaintiffs asked defendant if it would agree to build plaintiffs' half of the building 4 feet wider, i.e., making plaintiffs' portion a 14 x 45-foot building rather than the originally planned dimension of *14 10 x 45 feet. Plaintiffs offered to pay for the four-foot expansion (a basement was also to be added) by paying "Whatever it cost them." Drawings for the 24-foot-wide building were prepared.
New trenches were dug for footings for the additional 4 feet. New footings were laid. The construction work continued until November 27, 1956, when a meeting was held in defendant's office among Alfred and Arthur Erickson (of defendant corporation), M.J. Merickel (plaintiff), Roger Barringer (plaintiffs' tenant), John Hogenson (defendant's construction engineer), and others. A vigorous dispute arose as to whether plaintiffs' tenant was going to install stools for indoor seating for the service of food in his 14-foot portion of the building. The Ericksons objected to the use of stools. M.J. Merickel said he and his tenant could do whatever they pleased with their portion of the building. The Ericksons threatened to stop working on plaintiffs' portion of the building unless plaintiffs and their tenant agreed not to install indoor stools.
Work on plaintiffs' portion of the building was stopped. Merickel was told by defendant's foreman at the construction site that he had orders not to do any work on plaintiffs' portion of the building.
On November 28, 1956, plaintiffs served a notice of default on defendant and waited for 30 days as required by the lease. Defendant neither replied to the notice of default nor recommenced work on plaintiffs' portion of the building, but did complete its own portion. Plaintiffs later employed another contractor to complete its portion of the building at its own expense.
Thereafter, this action for unlawful detainer for the recovery of possession of the 20-foot strip of land leased to defendant was instituted. Following the introduction of plaintiffs' evidence, defendant moved for a directed verdict. The motion was granted, the trial court being of the opinion that as a matter of law plaintiffs failed to prove there was an enforceable oral modification of the written lease since it appeared that costs for the 24-foot building had not been figured (that is, the parties had not mutually agreed as to how much extra plaintiffs were to pay) and there was a question as to whether or not completed plans for the extended building had been submitted and agreed upon. The court also held, as a matter of law, that the parties had mutually *15 abandoned their original written agreement for a 20-foot building so that defendant was not in breach of any agreement for failing to build either the 24-foot or the 20-foot building.
1. Did the trial court err in directing a verdict of not guilty for the defendant? Two evidentiary issues arise: (1) Does the evidence as a matter of law fail to prove that the original written lease contract had been modified by parol to provide for the construction of the building 24 feet instead of 20 feet wide? (2) Does the evidence as a matter of law compel a finding that the parties mutually abandoned their original agreement for the construction of a building 20 feet wide? In passing on these issues we have the well-established rule in this jurisdiction that a party asserting the parol modification of a written contract has the burden of proving the modification by clear and convincing evidence.[1] The burden is not met by a mere preponderance of the evidence.[2]
It is to be noted that plaintiffs' complaint seeks judgment for restitution of the premises on the ground that defendant has failed to comply with, and has repudiated, its obligation under the original written lease to build a structure for the benefit of plaintiffs as lessors. As a defense, defendant, in its answer, alleged that it had been prevented from complying with the covenant by plaintiffs' conduct and that plaintiffs are estopped to assert, or that they have waived, a breach of the original covenant. Plaintiffs introduced testimony to show a parol modification of the contract to the effect that plaintiffs' portion of the structure should be 4 feet wider than originally agreed. Although any issue as to modification falls wholly outside the allegations of the complaint, it is clear, in any event, that plaintiffs, in asserting such modification, have not met their burden of proof by clear and convincing evidence which would sustain a jury finding of modification.
*16 The testimony relating to the negotiations between the parties for the modification of the contract is, however, material to a consideration of whether the evidence as a matter of law compels a finding that the parties by mutual agreement abandoned the original contract provision for the construction of a building 20 feet wide.
2. Any so-called abandonment of a contract by mutual agreement is in the nature of rescission.[3] Rescission as a general rule must be exercised in toto and is applied to the contract in its entirety with the result that what has been done is wholly undone and no contract provisions remain in force to bind either of the parties.[4] Here there was no rescission which terminated the lease as a whole. The trial court pursuant to defendant's motion found in effect that the construction covenant in the original agreement, and no other provision of the lease, had been rescinded. A rescission or so-called abandonment by mutual agreement of a single provision of a contract is a modification or an amendment without a cancellation or a voidance of the contract as a whole. He who asserts such modification (here asserted as a defense by the defendant) has the burden of proving it by clear and convincing evidence.
Do we have clear and convincing evidence which as a matter of law establishes a mutual agreement to rescind the original construction provision in the lease? Any conclusion to that effect must rest on a finding that the parties by their words and conduct, during their unsuccessful negotiations for the enlargement of the building, clearly and convincingly reflected a mutual agreement that defendant be wholly released from his original obligation to build a structure 20 feet wide. When preliminary negotiations for a valid agreement to modify an existing contractual provision fail, it does not necessarily follow that the parties have thereby mutually agreed to forego or waive a performance of the original obligation.
Here negotiations for a contractual modification were proceeding amicably, and in reliance upon the expectation that negotiations would be successfully consummated, defendant extended the foundation *17 trenches and laid footings for the 4-foot increase in width. All such construction stopped, however, on November 27 when the parties sharply disagreed over defendant's demand that no inside stools be permitted in plaintiffs' part of the building. Before the meeting broke up, one of the Ericksons declared that defendant would build for plaintiffs only what was required by the lease and nothing more. This declaration standing by itself would justify an inference that Erickson then understood that the original construction provision was still in effect. Plaintiffs' failure either to reply or to accept defendant's announcement that he would do only what he was already bound to do does not as a matter of law establish a mutual intent to rescind or abandon the original obligation. After the conference on November 27, plaintiffs were told by defendant's foreman that he had orders to stop all work on plaintiffs' part of the building. Defendant thereafter completed its part of the building and left plaintiffs' part untouched. Under the date of November 28, 1956, plaintiffs by letter notified defendant that its refusal to comply with the construction covenant in the lease would constitute a default which, upon the expiration of 30 days, would give plaintiffs the option to declare the lease at an end. Sometime after the expiration of the 30-day period, or specifically on January 8, 1957, plaintiffs arranged to have its portion of the building constructed by a third party. In the light of the evidence as a whole it was error to take the issue of rescission or mutual abandonment away from the jury by directing a verdict.
Defendant asserts, however, that an action in unlawful detainer for breach of a lease is completely inappropriate here since plaintiffs' notice of default was dated November 28, 1956, while the lease stipulated that the term of the lease was not to commence until January 1, 1957. Defendant argues that if its actions constituted a breach it must have been an anticipatory breach[5] and states that the doctrine of anticipatory breach does not apply to leases. We do not deem it necessary to decide whether or not the doctrine of anticipatory breach applies to leases in *18 this state. Although the formal lease stated the period of the lease was to commence on January 1, 1957, it is quite clear that plaintiffs were required to, and did, surrender the premises to defendant at the time the lease was executed in November 1956. In fact, the concurrently executed letter of agreement required that plaintiffs immediately remove their equipment from, and allow the immediate razing of, their existing drive-in building so that construction work according to the lease agreement could begin. Plaintiffs complied with this provision, and defendant immediately proceeded to wreck plaintiffs' building and started the construction work. Clearly by terms of the letter which was an integral part of the lease, and as confirmed by their acts of immediate performance pursuant thereto, the parties revealed their agreement that the construction covenant should become operative at once and that the performance of the contract should not be delayed until January 1, which was the formal date adopted for the commencement of the 20-year lease term. It is true that the lease provided that defendant should have until January 1 to obtain the necessary construction permits, and if it was unable to obtain them, the lease should be null and void. This provision was obviously inserted to protect defendant from any contractual liability for nonperformance due to any unforeseen inability to obtain such permits. This precautionary provision was not designed to delay the recognized obligation to commence performance immediately. The parties themselves recognized that their lease agreement was operative early in November 1956 and, if we were to hold otherwise, we should be ignoring the unmistakable contractual intent of the parties and the realities of the situation as displayed by their own conduct. Under the circumstances we are not concerned with an anticipatory breach but with the question of an actual breach of the lease terms.
The judgment of the trial court is reversed and a new trial is granted in accordance with this opinion.
Reversed.
NOTES
[1] Hentges v. Schuttler, 247 Minn. 380, 77 N.W. (2d) 743; John A. Stees Co. v. Willis, 151 Minn. 192, 186 N.W. 391; Dwyer v. Illinois Oil Co. 190 Minn. 616, 252 N.W. 837; Slawson v. Northern States Power Co. 201 Minn. 313, 276 N.W. 275; Butterick Publishing Co. v. Johnson, 201 Minn. 345, 276 N.W. 277; 4 Dunnell, Dig. (3 ed.) § 1777.
[2] Dwyer v. Illinois Oil Co. supra; Buck v. Patrons Co-op. Fire Ins. Co. 177 Minn. 509, 225 N.W. 445.
[3] See, 12 Am. Jur., Contracts, §§ 433, 439, 442.
[4] 12 Am. Jur., Contracts, § 444.
[5] "An anticipatory breach of contract is one committed before the time has come when there is a present duty of performance, and is the outcome of words or acts evincing an intention to refuse performance in the future." 12 Am. Jur., Contracts, § 391. See, also, 4 Dunnell, Dig. (3 ed.) § 1799. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1240886/ | 254 Minn. 320 (1959)
95 N.W. (2d) 1
MILDRED MULLIGAN
v.
ST. LOUIS CHURCH OF ST. PAUL.
No. 37,543.
Supreme Court of Minnesota.
February 13, 1959.
*321 James E. Finley, for appellant.
William F. Orme and Faricy, Moore & Costello, for respondent.
MAGNEY, COMMISSIONER.
Defendant church appeals from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.
Defendant's church building is located in the city of St. Paul. On February 6, 1955, plaintiff, Mildred Mulligan, attended Mass there for the first time. After the services, she walked out through the front door. A platform extended from this door about 3 1/2 feet wide and 7 or 8 feet long on which was a heavy steel mat about 3 feet wide and 6 feet long. The mat was constructed of links, the openings in which were about three-fourths of an inch in diameter. It extended to within a few inches of the edge of the platform. From the platform five steps led down to the public sidewalk. Plaintiff proceeded down the flight of steps and she claims that when she had reached the sidewalk at the foot of the steps she was struck from behind and thrown down. Her hat and glasses flew off, and she came to rest with her head near the curb and her feet the length of her body from the lowest step.
Olive Nadeau, a witness called by plaintiff, testified that, as she was about to descend the steps in front of the church, the heel of her overshoe caught in the open flange or link on the edge of the mat and she turned her ankle. She said that she fell forward and that, as she was falling, she struck plaintiff in the back with her head and plaintiff was thrown forward on the sidewalk. She said that there were open links at the edge of the mat "pointing out towards the steps." She attended church regularly and had seen them every Sunday that she attended but missed seeing them the day in question. Defendant's exhibit 4, a photograph of the mat, shows defective or open links or breaks along the edge.
The court charged the jury that if plaintiff was on the steps when struck she could not recover because of the relationship between the church and herself which barred a recovery but that if she was on the sidewalk when struck she might recover under certain conditions. Since the jury found for plaintiff, it must have found that plaintiff was on *322 the sidewalk when struck.
1. Defendant contends that the evidence fails to support plaintiff's claim that she had already reached the foot of the steps and was on the sidewalk when struck. In support of this contention it refers to the testimony of witness Nadeau and its own witness, Harriet Marie Jerikovski. It claims that witness Nadeau said that plaintiff was on the second lowest step when struck. Such was not her statement. She did not say that she saw plaintiff at that moment but said: "She must have been on the * * * fourth one down from the top"; that is, next to the lowest step. It was a mere conclusion on her part. Witness Jerikovski came out of the church at a side door and was proceeding on a walk leading out to the public sidewalk. There were a number of people about and she was quite a distance from the steps how far the record does not disclose. She testified that she had just gotten on the walk
"* * * and did practically see the steps, and I heard the noise, you know, kind of falling, and I looked, and I saw Mrs. Nadeau tumble, the top lady, and she was on about the second step from the top when she started falling, and the other lady was on, I would say Well, there's a little step, and then it was the first big step, I would call it. * * * and she was on that one when she got hit, I would say, and tumbled."
It is evident that she was guessing, both as to where Mrs. Nadeau was when she started to fall and as to where plaintiff was at that time. She does not specifically say that she saw plaintiff on the step. Plaintiff, on the other hand, on three different occasions definitely testified that she was on the sidewalk at the foot of the steps when struck.
On this state of the evidence, we cannot say that the jury was not justified in finding that plaintiff was on the sidewalk when struck.
Defendant also contends that the defect in the mat is so slight that defendant cannot be charged with negligence for keeping it in use. The evidence certainly supports a finding that defective or broken links existed along the edge of the metal mat and that the edge of the mat was only a few inches from the edge of the platform. Under all the facts and circumstances it was a question for the jury to determine whether defendant was negligent.
2. Defendant charges error in the court's failure to instruct the jury *323 that plaintiff had the burden of proving that the defect in the mat, if any, had existed for such a period of time prior to plaintiff's injury that defendant had or should have had notice thereof. At the close of the charge, counsel failed to call the court's attention to the claimed omission but sets it out in the motion for judgment notwithstanding the verdict or for a new trial. It claims that this was an error in instructions with respect to fundamental law and controlling principle such as may be assigned in a motion for a new trial even if it was not otherwise called to the court's attention under Rule 51 of Rules of Civil Procedure. Francis v. Wilson, 249 Minn. 508, 83 N.W. (2d) 248. In our opinion, the rule of law set out in the claimed omission has no application to our set of facts.
If plaintiff was on the public sidewalk at the time she was struck, as the jury found she was, the relationship between the church and plaintiff as an attendant on church premises had ceased, and she was in the same relationship to defendant as any other pedestrian who passes the premises on the public sidewalk. Its duty toward such person is stated in Prosser, Torts (2 ed.) § 75, as follows:
"The possessor of land is required to exercise reasonable care with regard to any activities which he carries on, for the protection of those outside of his premises. * * * he is under the affirmative duty to take reasonable steps to inspect his premises and keep them in repair, * * *."
And in Restatement, Torts, § 365, the rule is stated:
"A possessor of land is subject to liability for bodily harm caused to others outside the land by the disrepair of a structure or other artificial condition thereon, if the exercise of reasonable care by the possessor or by any person to whom he entrusts the maintenance and repair thereof
"(a) would have disclosed the disrepair and the unreasonable risk involved therein, and
"(b) would have made it reasonably safe by repair or otherwise."
Restatement, Torts, § 365, comment d; 25 Am. Jur., Highways, § 364; see, Pelowski v. J.R. Watkins Medical Co. 120 Minn. 108, 139 N.W. 289, 618.
In this case, any inspection could not have failed to disclose the *324 claimed defects.
As we find no reversible error, affirmance must follow.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1240938/ | 7 Wis. 2d 65 (1959)
POOLE and another, Respondents,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
Supreme Court of Wisconsin.
March 5, 1959.
April 7, 1959.
*68 For the appellant there were briefs by Roberts, Boardman, Suhr, Bjork & Curry of Madison, and oral argument by Walter M. Bjork.
For the respondents there was a brief by John A. Lawton and Don F. Meloy, both of Madison, and oral argument by Mr. Meloy.
FAIRCHILD, J.
Defendant claims that there was no credible evidence to sustain the jury finding that Poole was negligent as to management and control. Defendant relies upon decisions which have been summarized by the court as follows: "Out of these cases must be read the rule that skidding may occur without fault, and that the mere fact of its occurrence will not support a finding or inference of negligence." Coenen v. Van Handel (1955), 269 Wis. 6, 8, 68 N. W. (2d) 435.
*69 The validity of this rule is not questioned. In the cases referred to, however, the cars involved have been in a position or movement from which the inference of negligence would ordinarily be drawn, but the proof has been clear that the position or movement was the result of skidding. Jury verdicts that the defendant driver was not negligent have been sustained if there was conflicting evidence as to negligent conduct precipitating the skidding. Linden v. Miller (1920), 172 Wis. 20, 177 N.W. 909; Churchill v. Brock (1953), 264 Wis. 23, 58 N. W. (2d) 290. It has been held as a matter of law that defendant driver was not negligent where there was no evidence to sustain a finding that negligent conduct precipitated the skidding. Wobosel v. Lee (1932), 209 Wis. 51, 243 N.W. 425; Maltby v. Thiel (1937), 224 Wis. 648, 272 N.W. 848. Jury verdicts that defendant driver was negligent have been sustained where there was evidence that negligent conduct precipitated the skidding. Van Matre v. Milwaukee E. R. & T. Co. (1955), 268 Wis. 399, 67 N. W. (2d) 831; Williams v. Williams (1933), 210 Wis. 304, 246 N.W. 322; Zeinemann v. Gasser (1947), 251 Wis. 238, 29 N. W. (2d) 49; Coenen v. Van Handel, supra. None of the cited decisions involves a situation where proof that skidding caused an invasion of the left side of the roadway was absent or inconclusive.
In Henthorn v. M. G. C. Corp. (1957), 1 Wis. (2d) 180, 83 N. W. (2d) 759, we declined to presume the existence of a nonnegligent explanation for stopping on the roadway. See also Cushing v. Meehan, ante, p. 30, 95 N. W. (2d) 796.
Defendant interprets the evidence before us as showing that the Poole car skidded across the center line of the highway into the Derleth car. We do not agree that this is the only reasonable interpretation. Mr. Derleth first saw the Poole car some distance away and thought it was proceeding on Poole's side of the highway without apparent *70 difficulty. Just before the collision he saw it again at apparently a considerable angle with the center line of the roadway for he could not see its headlights. It was skidding toward Derleth. It is a reasonable interpretation of his testimony that it was moving more or less in the same direction as the highway, but leading with its left side. At least some of the rear portion of the car must have been at that time on Derleth's side of the road. Derleth apparently did not see the Poole car begin to skid and did not testify that he saw it skid across the center. Whether the rear end skidded across the center line or whether the car was on the wrong side before skidding began is not clear.
We understand the portion of Derleth's testimony set out in the statement of facts to mean that between the time he saw Poole's headlights and the time he first saw Poole skidding, there was an interval of time when he was not watching Poole, but was preoccupied with watching the road in front of him. Other answers emphasize the fact that Derleth did not claim to see all of Poole's progress from the point where Poole was first seen:
"Q. And suddenly you simply saw the Poole car sliding and skidding sidewards right into the front of your car? A. He came right into my beam of headlights, a black object.
"Q. And skidding sideways, was it not? A. That's right, broadside."
If the testimony had been that Poole invaded the wrong side of the roadway as a result of skidding, no negligence on his part could be inferred either from his invasion of the wrong side or from his skidding. There being no proof that any act of Poole caused the skid, plaintiffs' case would fail under those facts. Here, however, the testimony does not directly show that the invasion was caused by skidding. The invasion may have taken place before the skidding *71 began. For instance, there is testimony that the highway curved slightly to Poole's right. Proceeding straight ahead, he would have invaded the left side and may have skidded as a result of his effort to correct this invasion.
If a defendant driver be observed skidding down his left side of the road, does the fact of skidding prima facie excuse his invasion of the left side and impose upon plaintiff the burden of proving either that defendant invaded before skidding began or that negligent conduct caused the skidding?
We conclude that presence on the wrong side of the roadway in these circumstances is evidence of negligence unless it also be shown that the presence on the wrong side was due to skidding. It may be that the jury might properly have inferred from Derleth's testimony and all the other circumstances in evidence that Poole was on the proper side of the road until he began to skid but whether or not this inference was to be drawn was for the jury.
By the Court.Judgment affirmed.
CURRIE, J. (dissenting).
The only testimony as to how the accident happened is that of Derleth. He first observed the lights of the approaching Poole car in its own lane of travel. The next time he observed such car it was skidding sideways toward him and the collision took place in Derleth's traffic lane, the front of the Derleth automobile striking the center of the left side of the Poole car.
The majority opinion sustains the finding of the jury, that Lyle Poole was causally negligent as to management and control, on the basis that such negligence could be inferred by the jury from the position of the Poole car in being on the wrong side of the center line of the pavement. This is nothing more nor less than applying the doctrine of res ipsa loquitur. It would be a proper application of such principle, if there were absent the undisputed evidence of *72 skidding. Hamilton v. Reinemann (1940), 233 Wis. 572, 580, 290 N.W. 194, and Kempfer v. Bois (1949), 255 Wis. 312, 314, 38 N. W. (2d) 483.
Res ipsa loquitur does not apply to skidding so as to permit a jury to infer negligence therefrom. Linden v. Miller (1920), 172 Wis. 20, 22, 177 N.W. 909, and Churchill v. Brock (1953), 264 Wis. 23, 28, 58 N. W. (2d) 290. Therefore, the jury cannot be permitted to speculate as to whether the nonnegligent process of skidding is what caused the Poole car to cross the center line, or whether some negligent act of control and management on the part of Lyle Poole first carried the car across into the opposite traffic lane and the skidding occurred thereafter. Hyer v. Janesville (1898), 101 Wis. 371, 377, 77 N.W. 729, and Wisconsin Telephone Co. v. Matson (1950), 256 Wis. 304, 310, 41 N. W. (2d) 268.
In Wisconsin Telephone Co. v. Matson, supra, this court held it proper to apply the doctrine of res ipsa loquitur to an unexplained running off the highway of a motor vehicle. However, the opinion in that case made it clear that the prior holdings in Klein v. Beeten (1919), 169 Wis. 385, 172 N.W. 736, and Baars v. Benda (1946), 249 Wis. 65, 23 N. W. (2d) 477, were specifically approved. We quote from the opinion in the Wisconsin Telephone Co. Case as follows (256 Wis. p. 310):
"In Klein v. Beeten, supra, and in Baars v. Benda, supra, automobiles ran off the road and passengers were injured. After the accident a flat front tire was found in the first case and a broken steering gear in the second. In each of these actions we held that res ipsa loquitur did not apply because the defects may have preceded and caused the accident or they may have been caused by the car hitting the ditch. The circumstances were as consistent with the nonactionable as with the actionable cause and the jury was not allowed to speculate between them, to guess (as we said *73 in Baars v. Benda, p. 69) whether it was the broken steering gear or negligent operation which caused the accident."
If a flat tire or a broken steering wheel may have either precipitated a car off a highway, or have occurred afterward as a consequence of impact of the collision which resulted, it is equally apparent that in the instant case the skidding may have occurred before the Poole car crossed the center line as well as afterward. The instant holding of the majority opinion is not only a repudiation of Klein v. Beeten, supra, and Baars v. Benda, supra, but also of the rationale of the holding in Wisconsin Telephone Co. v. Matson, supra.
Our decision in Wood v. Indemnity Ins. Co. (1956), 273 Wis. 93, 76 N. W. (2d) 610, is also directly in point. In that case, as in Wisconsin Telephone Co. v. Matson, supra, res ipsa loquitur was applied to hold that an unexplained leaving of the highway by an automobile gave rise to an inference of negligence which would support a jury verdict so finding. The operator was found dead in the car after it collided with a tree. The defendant insurance company contended that the operator may have had a fatal heart attack, and that caused the vehicle to take the course it did. There was no autopsy finding of a heart attack or any other sufficient evidence in the record to establish that a heart attack had occurred. The court's opinion made it crystal-clear that, if there had been conclusive evidence in the record that the operator had sustained a heart attack, it would not have been necessary to prove that it had occurred before the car left its course in order to rule out res ipsa loquitur. The court again gave its stamp of approval to Baars v. Benda, supra.
This court should not permit its sympathy for the unfortunate plaintiffs to cause it to overrule the prior well-considered holdings of the afore-cited cases. In order for *74 the plaintiffs to recover it was essential that they establish that the skidding occurred as a result of some act of negligence, or was aggravated thereby. Coenen v. Van Handel (1955), 269 Wis. 6, 8, 68 N. W. (2d) 435. This the plaintiffs failed to prove.
I am authorized to state that Mr. Justice BROWN joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1240975/ | 623 P.2d 404 (1981)
The PEOPLE of the State of Colorado, Petitioner,
v.
Lloyd Dale SMITH, Respondent.
No. 79SC261.
Supreme Court of Colorado.
February 9, 1981.
*405 J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Litigation Section, Denver, for petitioner.
J. Gregory Walta, Colorado State Public Defender, Richard P. Holme and Richard A. Sonntag, Sp. Deputy State Public Defenders, Denver, for respondent.
LEE, Justice.
Certiorari was granted to review the decision of the court of appeals in People v. Smith, No. 77-903, announced July 12, 1979, Colo.App. We reverse the court of appeals.
The defendant was charged in a three-count information with sale of a narcotic drug, cocaine, section 12-22-302, C.R.S. 1973 (now in 1978 Repl. Vol. 5), and with two counts of conspiracy to sell a narcotic drug, section 18-2-201, C.R.S. 1973 (1978 Repl. Vol. 8). Prior to trial, the court dismissed count three of the information, one of the conspiracy counts. The case was tried to a jury, which found the defendant guilty of count two of the information, the remaining conspiracy count. The jury was unable to agree on the substantive count of sale of a narcotic drug and the court declared a mistrial as to that count. Upon the district attorney's motion, the court ordered dismissal of that count.
The court of appeals reversed the district court, holding that the court should have granted defendant's motion for judgment of acquittal because the prosecution's evidence, even when viewed in the light most favorable to the prosecution, failed to disprove the procuring agent defense presented by the defendant. The court of appeals remanded with directions to enter judgment of acquittal.
The defendant's sole defense to the charges of sale and conspiracy to sell a narcotic drug was that he was the procuring *406 agent for the buyer of the drugs, and was not the seller and did not engage in a conspiracy with the seller. His defense was predicated on our decision in People v. Fenninger, 191 Colo. 334, 552 P.2d 1018 (1976). The procuring agent defense requires that the defendant act as an exclusive agent for the buyer. As such, the defendant becomes a principal, or a conspirator, in the purchase rather than in the sale of the narcotics and, therefore, he cannot be convicted of sale or conspiracy to sell. People v. Fenninger, supra.
When the issue of an affirmative defense is raised by the defendant and some evidence has been presented on that issue, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue, as well as to all of the elements of the offense. Section 18-1-407, C.R.S. 1973 (now in Repl. Vol. 8). It is thus necessary to review the evidence in the light most favorable to the prosecution to determine if a reasonable juror could conclude that the prosecution had disproved the procuring agent defense beyond a reasonable doubt. See People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).
I.
A review of the People's evidence shows that in mid-October 1976 Steve Skinner, a police informant, contacted the defendant, who was an acquaintance of only four months, at his place of work in regard to procuring some drugs for "friends from Golden." As a result of this contact, defendant met, on October 21, 1976, with Skinner and Investigator Aultman, a police officer on assignment to the Drug Enforcement Administration. This meeting was at a restaurant in Boulder some twenty miles from where defendant worked and lived. After meeting with Aultman, defendant telephoned his source to make sure the deal was still set. The defendant then led Aultman to a trailer park in north Boulder. After assuring Aultman that the cocaine to be purchased would be of good quality, the defendant took money from Aultman and disappeared for approximately five minutes. Upon his return he handed Aultman a packet containing cocaine.
As he left the trailer on October 21, Aultman mentioned to defendant that he might like to purchase a larger quantity of drugs. Defendant was to call Aultman when a quantity became available.
On November 1, 1976, Skinner again initiated a meeting between defendant and Aultman, which took place at the same restaurant. Defendant again telephoned his source to make sure the deal was set. The defendant and Aultman drove to the same trailer park where the previous deal had taken place. On this occasion, Aultman demanded to deal with the source directly. After defendant had entered a trailer to see if the source would deal on these terms, Aultman was ushered into the trailer where he met Mark Folsom, the source. Aultman bought cocaine directly from Folsom; the defendant handled neither the money nor the drugs. Defendant's conviction for conspiracy is based on this transaction.
On November 4, 1976, defendant telephoned Aultman to inform him that a large quantity was available. The price quoted was $575. The same procedure was followed. Aultman met the defendant at the same restaurant. Defendant telephoned to make sure the deal was still set, and the two men proceeded to the same trailer. This time they were accompanied by defendant's girl friend. The seller was Mark Pappas, Folsom's roommate. The drugs were not in the trailer. After waiting about ten minutes for the drugs to be delivered, Pappas left to get them himself. During his absence, a friend of the defendant appeared at the trailer and was freely admitted. Pappas returned and immediately began a telephone conversation with an unknown party. While Pappas was engaged in the telephone conversation, defendant informed Aultman that the price might be more than originally thought. Aultman refused to pay more. He laid the money on the table and picked up his drugs. Defendant picked up the money and, saying "Mark trusts me," counted the money. He then handed the money to Pappas, who put it in *407 his pocket without recounting it. Aultman left, saying that he would like to buy more drugs later on.
Defendant learned that more drugs were available. He tried unsuccessfully several times to reach Aultman, who was out of town. He finally reached Aultman on November 17, 1976, and another purchase was arranged. Aultman informed the defendant that he need not escort him [Aultman] to the trailer and that if the defendant had drugs or money coming he should settle up directly with the seller. Defendant responded that that would be "okay." The drug deal was subsequently consummated.
The following are circumstances connected with the drug transactions upon which the jury could reasonably conclude that the defendant was not acting as the exclusive agent of the buyer, but in fact was acting as the agent for the seller, thus negating the procuring agent defense: before each sale, an officer requested that defendant arrange for the purchase of drugs. The defendant did in fact set up the deals. The drugs were obtained on all four occasions from the two suppliers with whom the defendant was acquainted before these transactions occurred. The last two sales were for large amounts. In two of the sales the defendant handled money and in one sale he handled the drugs. The defendant went far out of his way to arrange these deals, especially considering his short acquaintance with and lack of compensation from Aultman. The defendant made positive representations as to the quality of the drugs. On one occasion, when a dispute as to price arose, defendant tried to persuade Aultman to pay the seller's higher price. While the seller was otherwise occupied with a telephone conversation, the defendant counted the money paid by Aultman, saying "Mark trusts me." This trust was borne out when Pappas, the seller, immediately thereafter put the money in his pocket without counting it. That the defendant was trusted by the seller is further bolstered by the evidence that defendant's girl friend and another friend were freely admitted to the trailer where drug deals were taking place. Aultman's direction to the defendant that he settle up with the sellers for any drugs or money owed him evoked an affirmative response, suggesting that he would do so. The defendant did not protest that he was not acting on the seller's behalf.
The defendant testified that the reason he engaged in the drug transactions was that he did it as a favor to Steve Skinner (the informant) and as a favor to his new friend, Aultman. He explained it made him feel like a bigshot to be "handling" or to be "around drugs." The jury, of course, as the sole judge of the credibility of the witnesses, was at liberty to disbelieve the defendant's explanation concerning his participation in the illegal transactions.
In our view, the jury could reasonably conclude from all the evidence presented that the defendant was not acting exclusively on behalf of the buyer, and that the guilt of the defendant was established beyond a reasonable doubt as to that issue as well as to all of the elements of the offense.
II.
Since the court of appeals reversed the conviction on the basis of insufficiency of the evidence as it related to the issue of the procuring agent defense, it did not consider the defendant's further ground for reversal based on the court's refusal to give his tendered instructions on the procuring agent defense.
The defendant claims the instruction given the jury on the procuring agent defense was insufficient. In Fenninger, supra, we stated:
"* * * The jury was correctly instructed that if they found that defendant acted exclusively on behalf of the [Colorado Bureau of Investigation] agent, and not for the sellers, they would have to find him not guilty. * * *"
We have examined the instructions given by the court to the jury in this case and find they were sufficient to inform the jury of the affirmative procuring agent defense.[1]*408 We therefore hold that the court did not err in refusing to give the defendant's tendered instructions.
Accordingly, since we find that there was sufficient evidence to negate the procuring agent defense and find that the jury was properly instructed on the defense, we reverse the judgment of the court of appeals and order that the verdict of the jury be reinstated.
ERICKSON, J., does not participate.
NOTES
[1] "INSTRUCTION NO. 8
"It is an affirmative defense to the crimes of Sale of a Narcotic Drug and Conspiracy to Sell a Narcotic Drug that the Defendant acted exclusively on behalf of the undercover agent (the buyer), or his paid informant, and not for or as a seller."
"INSTRUCTION NO. 9
"The evidence in this case has raised the issue of the affirmative defense of procuring agent for the buyer. The prosecution, therefore, has the burden of proving to your satisfaction beyond a reasonable doubt the guilt of the defendant as to this issue, as well as to all of the elements of the crimes charged. If, after consideration of all of the evidence, you are not convinced beyond a reasonable doubt of the guilt of the defendant then you must return a verdict of not guilty to Sale of a Narcotic Drug and Conspiracy to Sell a Narcotic Drug." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1760114/ | 981 S.W.2d 474 (1998)
The STATE of Texas, Appellant,
v.
Wenceslao Gomez AYALA, Appellee.
No. 08-97-00597-CR.
Court of Appeals of Texas, El Paso.
November 5, 1998.
*476 K. Jefferson Bray, Asst. District Attorney, Dallas, for Appellant.
Ramanjeet Gill, Asst. Public Defender, Terence Sean Bajuk, Dallas, for Appellee.
Before BARAJAS, C.J., and McCLURE and CHEW, JJ.
OPINION
McCLURE, Justice.
The State of Texas appeals from the trial court's order granting a plea of collateral estoppel and pretrial motion to suppress certain evidence in the prosecution of Wenceslao Gomez Ayala for driving while intoxicated (DWI). Although the trial court specifically found that the initial stop of Ayala's vehicle was supported by reasonable suspicion and probable cause, the court concluded that the State was collaterally estopped from relitigating the legality of the stop because, at a prior administrative license revocation (ALR) hearing, the administrative law judge found that the arresting officer lacked reasonable suspicion to make the initial stop. Consequently, the trial court granted Ayala's motion to suppress and plea of collateral estoppel. In a single point of error, the State argues that it is not barred by collateral estoppel from litigating the lawfulness of Ayala's initial detention and subsequent arrest for DWI. We sustain the State's point of error and reverse the suppression order.
FACTUAL SUMMARY
Susan Jane Barber, a Dallas police officer, stopped the vehicle driven by Ayala after observing him fail to drive his vehicle in a single lane in violation of TEX.TRANSP.CODE ANN. § 545.060(a)(Vernon Pamph.1998). Based upon her observations of Ayala made after the stop, she determined that he was intoxicated and arrested him for DWI. Ayala refused Barber's request to submit a specimen of his breath or blood for analysis. See TEX.TRANSP.CODE ANN. §§ 724.015, 724.031, 724.032. The Dallas County Criminal District Attorney subsequently filed an information charging Ayala with DWI. After the Texas Department of Public Safety notified Ayala that his driver's license had been suspended as a result of his refusal to submit a specimen of his breath or blood, Ayala requested a hearing. See TEX.TRANSP.CODE ANN. §§ 724.033, 724.034, 724.035, and 724.041.[1] Following that hearing, the administrative law judge determined that the initial stop of Ayala's vehicle was not supported by reasonable suspicion, and denied DPS' petition to suspend Ayala's license.[2] In the criminal prosecution, Ayala filed a motion to suppress all evidence obtained as a result of the illegal stop. He further argued that the State was collaterally estopped from relitigating the lawfulness of the initial detention. Relying on State v. Aguilar, 947 S.W.2d 257 (Tex.Crim.App.1997), the trial court agreed with Ayala that the administrative law judge's finding barred the State from relitigating that issue, and consequently, the court entered an order suppressing the evidence.
COLLATERAL ESTOPPEL
In its sole point of error, the State contends that the trial court erred in granting the motion to suppress on the ground of collateral estoppel. Shortly after the State filed its brief, the Court of Criminal Appeals decided State v. Brabson, 966 S.W.2d 493 (Tex.Crim.App.1998), which favors the State's position. Ayala asserts, however, *477 that in applying an abuse of discretion standard to the trial court's ruling, we must ignore Brabson because it had not been decided at the time the court made its decision. Because Ayala's argument implicates the proper standard of review, we will address that issue first.
Standard of Review
In reviewing a trial court's ruling, an appellate court must first determine the applicable standard of review. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). Traditionally, appellate courts have reviewed rulings on motions to suppress under an abuse of discretion standard. See e.g., Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.App.1990); Brewer v. State, 932 S.W.2d 161, 166 (Tex.App.-El Paso 1996, no pet.). This deferential standard has been applied to a trial court's factual findings made in connection with a motion to suppress based on collateral estoppel. Aguilar, 947 S.W.2d at 260. In Guzman, the Court of Criminal Appeals clarified the standard of review for appellate courts when deciding mixed questions of law and fact such as that involved in the instant case. An appellate court must defer to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. The same deference should be afforded a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. Finally, an appellate court may review de novo "mixed questions of law and fact" not falling within the second category. Id.
The facts giving rise to Ayala's collateral estoppel claim are undisputed and resolution of the issue presented on appeal does not turn on an evaluation of the credibility of any witness. Consequently, we will review the collateral estoppel issue de novo. Guzman, 955 S.W.2d at 89; State v. Anderson, 974 S.W.2d 193 (Tex.App.-San Antonio 1998, no pet.h.)(not yet reported).[3]
Application of Brabson
The Court of Criminal Appeals determined in Brabson that collateral estoppel, as embodied in the Fifth Amendment guarantee against double jeopardy, is not implicated by a criminal prosecution following an administrative license revocation proceeding. Brabson, 966 S.W.2d at 495 n. 2. The only issue is whether the federal common law doctrine of "administrative collateral estoppel" bars the State from litigating the suppression issue. This doctrine will bar relitigation of an issue in a subsequent criminal prosecution when it is shown that an administrative agency, while acting in a judicial capacity, has resolved a disputed issue of ultimate fact properly before it which the parties have had an adequate opportunity to litigate. See Brabson, 966 S.W.2d at 495. This doctrine does not apply if the parties in the administrative proceeding and the criminal prosecution are not identical. Brabson, 966 S.W.2d at 496. The Court of Criminal Appeals determined in Brabson that the Texas Department of Public Safety and the Dallas County Criminal District Attorney's Office are not the same party for the purpose of administrative collateral estoppel, and therefore, the District Attorney's Office is not barred from litigating the suppression issue in the criminal prosecution. Id. at 496 and n. 4. The exact facts are present in this case. Accordingly, we find that the District Attorney's Office is not barred from litigating the suppression issue. Id. at 496. Point of Error No. One is sustained. The trial court's order granting the motion to suppress and the plea of collateral estoppel are reversed and the cause remanded.
NOTES
[1] The license suspension case is styled "The Texas Department of Public Safety v. Wenceslao Gomez Ayala" and is cause number XXXX-XX-XXXXX.
[2] A peace officer is authorized to arrest a person found committing a traffic violation other than speeding. See TEX.CODE CRIM.PROC.ANN. art. 14.01(b)(Vernon 1977)(a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view); TEX.TRANSP.CODE ANN. § 543.001 (general authorization to arrest); TEX.TRANSP.CODE ANN. § 543.004 (exception for speeding offense). The administrative law judge apparently failed to consider that Officer Barber's observation of the traffic offense gave her probable cause to stop the vehicle and arrest Ayala, thereby obviating the need for reasonable suspicion. See State v. Skiles, 938 S.W.2d 447, 453 (Tex.Crim.App.1997); State v. McCall, 929 S.W.2d 601, 604 (Tex.App.-San Antonio 1996, no pet.); Ruiz v. State, 907 S.W.2d 600, 604 (Tex.App.-Corpus Christi 1995, no pet.).
[3] Even if we agreed with Ayala that an abuse of discretion standard applied to this issue, deference does not require that we ignore applicable law regardless of whether the case in question had been decided at the time the trial court made its decision. Moreover, Brabson did not announce an entirely new rule but merely applied administrative collateral estoppel, a doctrine which had been previously adopted in Texas, to the particular facts of that case. See Brabson, 966 S.W.2d at 495; Ex parte Tarver, 725 S.W.2d 195, 199 (Tex.Crim.App.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1803822/ | 641 N.W.2d 328 (2002)
Michael CHANEY (d/b/a/ The Chaney Group) et al., Appellants,
v.
MINNEAPOLIS COMMUNITY DEVELOPMENT AGENCY et al., Respondents, and
Gesco, Inc., Respondent/Intervenor.
Nos. C3-01-1349, C1-01-1401.
Court of Appeals of Minnesota.
March 26, 2002.
Review Denied May 28, 2002.
*330 Alan W. Weinblatt, Donna M. Kasbohm, St. Paul, for appellants.
Fred Burstein, William J. Maddix, Minneapolis, for respondents MCDA and the City of Minneapolis.
David Gronbeck, Minneapolis, for respondent/intervenor Gesco, Inc.
Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and STONEBURNER, Judge.
OPINION
G. BARRY ANDERSON, Judge.
Respondents, the City of Minneapolis and the Minneapolis Community Development Agency et al. (MCDA), published a request for proposals (RFP) inviting bids to rehabilitate certain property located in Minneapolis. Appellants, Michael and Robert Chaney, submitted a bid. Respondents did not sell the property to appellants but sold it to intervenor, Gesco, Inc.[1] On the same day respondents conveyed the property to intervenor, appellants brought suit claiming, inter alia, racial discrimination and breach of contract. Appellants filed and recorded a notice of lis pendens before intervenor recorded the deed from respondents. The district court then entered two orders dealing with the notice of lis pendens. The first order directed appellants to discharge the notice of lis pendens. Because appellants did not discharge the notice of lis pendens, the district court later issued a second order that did so. Appeals from both orders were consolidated by an order of this court. Because we find that this court cannot grant any effectual relief to appellants, we dismiss this consolidated appeal as moot.
FACTS
On June 28, 1999, MCDA published an RFP, which sought developers to purchase and rehabilitate the property at 1835-37 Park Avenue (the property). Of the four proposals submitted by the September 2, 1999 deadline, as counsel for appellants observed, appellants filed the only complete application.
An October 4, 1999 letter from the MCDA staff to the MCDA operating committee recommended that the property be sold to appellants. The MCDA Board of Commissioners (board) ignored the recommendation and instead approved the sale to Mark Orfield, another developer. It is undisputed that as of September 2, 1999, Orfield's application did not satisfy all of the RFP's requirements. The board's decision was controversial.
On November 12, 1999, the board referred the matter back to the operating committee. Intervenor submitted an unsolicited proposal, and, on April 24, 2000, the executive director of the MCDA recommended selling the property to intervenor. The board approved the sale and conveyed the property to intervenor by way of a quitclaim deed on June 22, 2000.
On the same day, appellants served a summons and complaint on respondents. On July 14, 2000, appellants recorded a notice of lis pendens in the chain of title of the property. The quitclaim deed from respondents to intervenor was recorded on August 2, 2000.
*331 On March 6, 2001, respondents filed a motion seeking summary judgment on all of appellants' causes-of-action as well as discharge of the notice of lis pendens. The district court only granted summary judgment on the breach-of-contract claim and did not discharge the notice of lis pendens.
On July 11, 2001, respondents again requested that the notice of lis pendens be discharged. The parties also reached an agreement allowing intervention, and the district court approved the addition of intervenor to the litigation.
On July 25, 2001, arguments were heard regarding the notice of lis pendens. Respondents requested that appellants post a surety bond, a request based on Minn.Stat. § 469.044 (2000).[2] The same day, the district court issued an order that required appellants to discharge the notice of lis pendens, and also denied respondents' request for a surety bond.
Appellants did not comply with the July 25, 2001 order. Another hearing was held on August 2, 2001; respondents and intervenor requested the district court set and require a supersedeas bond if appellants sought a stay of the discharge of the notice of lis pendens pending appeal. Because counsel for appellants acknowledged that appellants were financially unable to post a $500,000 bond, the district court concluded the issue of the supersedeas bond was moot. Therefore, the district court discharged the notice of lis pendens. This appeal followed.
ISSUES
I. Is this appeal moot?
II. Is intervenor a bona fide purchaser?
ANALYSIS
This court has appellate jurisdiction to review an order discharging a notice of lis pendens. Nelson v. Nelson, 415 N.W.2d 694, 696-97 (Minn.App.1987).
I.
Respondents contend this appeal was rendered moot by appellants' failure to file a supersedeas bond, which resulted in the discharge of the notice of lis pendens. This court has held that
[a] supersedeas bond is not required to perfect an appeal. The trial courts may not compel a party "to file a supersedeas bond as a condition to his right to an appellate review of the merits of the court's decision."
All Lease Co. v. Peters, 424 N.W.2d 320, 321 (Minn.App.1988) (quoting Tourville v. Tourville, 289 Minn. 544, 545, 185 N.W.2d 281, 282 (1971)). A supersedeas bond is simply a prerequisite for a stay while an appeal is heard. Therefore, the failure to post a supersedeas bond, in and of itself, does not render this appeal moot. See Minn. R. Civ.App. P. 108.01, 1998 cmt. (stating "[t]he posting of a supersedeas bond or a request for stay on other grounds is not required for an appeal to be perfected or proceed. However, because the order or judgment that is the subject of the appeal is not generally stayed automatically, a matter may, in some circumstances, become moot while the appeal is pending.")
The doctrine of mootness dictates that an appellate "court will hear only live controversies and will not pass on the merits of a particular question merely for the purpose of setting precedent." In re Inspection of Minn. Auto. Specialties, Inc., 346 N.W.2d 657, 658 (Minn.1984). Mootness can be described as
*332 the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 709, 145 L. Ed. 2d 610 (2000) (quotations omitted). If an appellate "court is unable to grant effectual relief," the issue will be deemed moot. In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).
As this court has observed, "we would deem the appeal [of a discharged notice of lis pendens] moot if [respondents] had transferred the property to a bona fide purchaser." Marque Plumbing, Inc. v. Barris, 380 N.W.2d 174, 176 (Minn.App. 1986), review denied (Minn. Mar. 24, 1986). Therefore, if this court concludes that intervenor was a bona fide purchaser, this appeal is moot.
II.
Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Here, two statutes are at issue: Minn.Stat. § 557.02 (2000) (providing for notice of lis pendens) and Minn.Stat. § 507.34 (2000) (Minnesota's race-notice recording statute).
Minn.Stat. § 507.34 protects bona fide purchasers against unrecorded property interests in the form of a race-notice recording statute. See Minn. Cent. R.R. Co. v. MCI Telecomms. Corp., 595 N.W.2d 533, 537 (Minn.App.1999) (recognizing that Minnesota is a race-notice state), review denied (Minn. Sept. 14, 1999). The recording statute "does not protect a purchaser who has actual or constructive notice of outstanding rights in another, as the purchaser is then not a bona fide purchaser." In re Inv. Sales Diversified, 38 B.R. 446, 453 (Bankr.D.Minn.1984) (citing Anderson v. Graham Inv. Co., 263 N.W.2d 382 (Minn.1978)).
A. Actual or Implied Notice
The district court found that "[i]ntervenor was unaware that the [notice of] Lis Pendens had been filed * * * until sometime in January of 2001." Findings of fact shall not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. If there is reasonable evidence to support the district court's findings of fact, we will not disturb those findings. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (citation omitted).
The record supports the finding that intervenor did not have actual or implied[3] knowledge of the notice of lis pendens; intervenor's president testified that he had no knowledge of the notice of lis pendens until January 2001. We defer to a district court's determination of credibility. See Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App.2000) (holding appellate courts defer to district court's credibility determinations). Here, the district court's determination that there was no actual or implied notice was based on testimony presented at the hearing and was not clearly erroneous.
*333 B. Constructive Notice
Since actual or implied notice is not present, intervenor is not bound by the notice of lis pendens absent constructive notice of the action. See Roberts v. Friedell, 218 Minn. 88, 94-95, 15 N.W.2d 496, 499-500 (1944).
"Pursuant to Minn.Stat. § 507.32 [(2000)], a purchaser is charged as a matter of law with constructive notice of any properly recorded instrument." Howard, McRoberts & Murray v. Starry, 382 N.W.2d 293, 296 (Minn.App.1986). The supreme court has defined constructive notice as
a creature of statute and, as a matter of law, imputes notice to all purchasers of any properly recorded instrument even though the purchaser has no actual notice of the record.
Miller v. Hennen, 438 N.W.2d 366, 369-70 (Minn.1989) (quotation omitted); see also Latourell v. Hobart, 135 Minn. 109, 113-14, 160 N.W. 259, 260-61 (1916).
The right to file a notice of lis pendens is a statutory right granted by Minn. Stat. § 557.02.
[T]he sole function of the lis pendens is to give constructive notice to all the world of the pendency of the action, which is, alone, notice to all persons of the rights and equities of the party filing the lis pendens in the land therein described.
Trask v. Bodson, 141 Minn. 114, 117, 169 N.W. 489, 490 (1918) (emphasis added) (citing Joslyn v. Schwend, 89 Minn. 71, 74, 93 N.W. 705, 706 (1903)).
Respondents conveyed the property to intervenor prior to the filing of the notice of lis pendens. A purchaser's title to property pursuant to a conveyance made prior to the recording of a notice of lis pendens, but not recorded until after the notice of lis pendens is filed, is unaffected by the notice of lis pendens where the purchaser does not have constructive notice of the notice of lis pendens at the time the purchaser acquired an interest in the property. See Roberts, 218 Minn. at 94, 15 N.W.2d at 499 (stating that "the doctrine of lis pendens applies only when a third person attempts to intrude into a controversy by acquiring an interest in the matter in litigation pending the suit" and "neither the rule nor the reason for it applies where a person takes by conveyance prior to the commencement of the suit, without actual notice" (citation omitted)); Moulton v. Kolodzik, 97 Minn. 423, 426, 107 N.W. 154, 155 (1906) ("If, * * * before the notice is filed, a party to the proceeding [has] executed a deed to a third person, who has not recorded it, such third person is not hampered by the lis pendens." (citations omitted)); Johnson v. Robinson, 20 Minn. 170, 171, 20 Gilmer 153, 154-55 (1873) (holding that purchaser not bound by notice of lis pendens when conveyance was completed before notice was filed, but deed was not recorded until after notice was filed).[4]
Appellants claim that two decisions support their argument that intervenor had constructive notice of the notice of lis pendens. See generally Marr v. Bradley, 239 Minn. 503, 59 N.W.2d 331 (1953); Fingerhut Corp. v. Suburban Nat'l Bank, 460 N.W.2d 63 (Minn.App.1990). But both *334 Marr and Fingerhut are distinguishable from the present controversy.
1. Marr v. Bradley
In Marr, Agnes Sheff agreed to sell her property to Marr. Marr, 239 Minn. at 504, 59 N.W.2d at 332. Later, her husband, Frank Sheff, who was not a record owner of the property, agreed to sell the same property to the Bradleys. Id. at 505, 59 N.W.2d at 332. The Sheffs refused to consummate the deal with Marr. Id. Marr sought specific performance, and recorded a notice of lis pendens on April 19, 1945. Id. The Sheffs then provided the Bradleys with an abstract that was continued to April 16, 1945, and did not disclose Marr's recorded notice of lis pendens. Id. On May 14, 1945, "without having the abstract further continued to date," the Bradleys paid the Sheffs for the property and received a warranty deed. Id.
The supreme court held that the determination of whether the Bradleys had constructive notice of Marr's notice of lis pendens depended on the validity of the Bradleys' original agreement with Frank Sheff. Id. at 506-07, 59 N.W.2d at 333.[5] The court held that the agreement between Frank Sheff and the Bradleys was void and gave the Bradleys no rights to the property; therefore, the Bradleys did not have an interest in the property until May 14, 1945, when they received a deed signed by both Agnes and Frank Sheff. Id. at 509, 59 N.W.2d at 334. The court concluded that because Marr's notice of lis pendens was duly recorded when the Bradleys first obtained an interest in the land on May 14, 1945, the Bradleys had received constructive notice of the Marr-Sheff litigation and their interests were subsidiary to the results of that litigation. Id. at 510-11, 59 N.W.2d at 335.
Marr is dissimilar to the instant case because here intervenor acquired an interest in the property prior to the recording of appellants' notice of lis pendens. Unlike the void agreement in Marr, there is no claim here that the quitclaim deed is void. Furthermore, the notice of lis pendens had not been filed when respondents conveyed their interest in the property to intervenor. Therefore, Marr is not dispositive in this case.
2. Fingerhut Corp. v. Suburban Nat'l Bank
At oral argument, appellants claimed that Fingerhut overrules Moulton, 97 Minn. at 423, 107 N.W. at 154, sub silento. We do not agree.
Moulton held that a notice of lis pendens is not binding on a purchaser who receives a deed to property before a notice of lis pendens is recorded on that property, even though the purchaser does not record the deed until after the notice of lis pendens has been recorded. Id. Fingerhut is distinguishable on its facts from this case and from Moulton. In Fingerhut, a former Fingerhut employee, Connelly, defrauded the company of a large amount of money and used the money to purchase property. Fingerhut, 460 N.W.2d at 64. Connelly mortgaged the property to Suburban on August 25, 1986. Id. at 65. On August 28, 1986, Fingerhut filed suit against Connelly and, the next day, filed and registered a notice of lis pendens against the property. Id. Suburban did not register its mortgage until September 2, 1986. The Fingerhut court concluded that Suburban was bound by Fingerhut's notice of lis pendens because Suburban registered its mortgage after Fingerhut's notice of lis pendens was registered, even *335 though Suburban received the mortgage prior to the notice of lis pendens' registration. Id. at 65-66.
But Fingerhut differs from the present controversy in a key respect: the property was registered, or Torrens, property. The Fingerhut court recognized that "[t]he necessity of registration to create an interest in the land is what distinguishes registered, or Torrens, property from abstract property." Id. (citing Mill City Heating & Air Conditioning Co. v. Nelson, 351 N.W.2d 362, 364 (Minn.1984)). Registration was necessary for Suburban to obtain an interest in the land. See Minn.Stat. § 508.47, subd. 1 (2000) (stating that registration of interest is operative act). Such is not the case either in this case or in Moulton. Delivery of the deed here, as in Moulton, gave the intervenor an interest in the property. Because intervenor gained an interest in the property before appellants recorded their notice of lis pendens, Fingerhut is inapposite and neither controls our decision here, nor overrules Moulton.
Therefore, because intervenor did not have actual, implied, or constructive notice of the recording of the notice of lis pendens, intervenor is a bona fide purchaser. Consequently, intervenor is not bound by any judgment resulting from the action between respondents and appellants. See Johnson, 20 Minn. at 171, 20 Gilmer at 155.
Because intervenor is a bona fide purchaser, this appeal is rendered moot. We cannot grant effectual relief to appellants because the property they seek is owned by others unaffected by these proceedings. Therefore, we need not address whether the district court erred in discharging the notice of lis pendens.[6]
DECISION
Appellants seek to reinstate a notice of lis pendens discharged by the district court. Because title to the property at issue is now owned by a bona fide purchaser, who acquired the property prior to the filing of appellants' disputed notice of lis pendens, this court is unable to grant effectual relief to appellants and this appeal is moot and is therefore dismissed.
Appeal dismissed.
NOTES
[1] For the sake of clarity, we refer to Gesco, Inc. as intervenor, while recognizing that it is a respondent in the instant case.
[2] Minn.Stat. § 469.044 allows a public corporation, such as MCDA, to ask for a surety bond when it is involved in litigation that may be injurious to the public interest.
[3] Appellants' argument that intervenor was on implied notice because it purchased the property from respondents is also without merit.
Where we have found implied notice, it has been based upon actual knowledge of facts which would put one on further inquiry, not upon imputed record notice of such facts.
Anderson, 263 N.W.2d at 384-85 (citations omitted). Consequently, imputing respondents' knowledge to intervenor, without more, would be improper.
[4] Other jurisdictions seem to be split regarding this rule. Compare Dime Sav. Bank of New York, FSB v. Sandy Springs Assocs., 261 Ga. 485, 405 S.E.2d 491, 493 (1991) (holding that earlier, unrecorded conveyance not affected by later-filed notice of lis pendens) with W & O Constr. Co. v. IVS Corp., 688 S.W.2d 67, 71 (Tenn.App.1984) (holding that creditor who records lis pendens had priority over bona fide conveyee whose deed was not recorded until after the notice of lis pendens was recorded).
[5] The court found that although Frank Sheff signed the Bradleys' purchase agreement, only Agnes Sheff's name appeared in the chain of title. Id. at 507, 59 N.W.2d at 333.
[6] The general rule is that an appeal continues a notice of lis pendens until final judgment is entered on appeal. See Aldrich v. Chase, 70 Minn. 243, 246, 73 N.W. 161, 162 (1897); see also Joslyn, 89 Minn. at 74-75, 93 N.W. at 706. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/258638/ | 309 F.2d 592
62-2 USTC P 12,105
UNITED STATES of America, Appellant,v.Dorothy Anne STAPF and B. T. Ware, II, Executors andTrustees of the Estate ofLowell H. Stapf,Deceased, and Dorothy Anne Stapf,Individually, Appellees.Dorothy Anne STAPF and B. T. Ware, II, Executors andTrustees of the Estate ofLowell H. Stapf,Deceased, and Dorothy Anne Stapf,Individually, Appellants,v.UNITED STATES of America, Appellee.
No. 18974.
United States Court of Appeals Fifth Circuit.
Sept. 26, 1962.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D.C., H. Barefoot Sanders, U.S. Atty., Fort Worth, Tex., John A. Bailey, Atty., Dept. of Justice, Washington, D.C., for appellants.
W. M. Sutton, Amarillo, Tex., for appellees.
Before BROWN, WISDOM, and BELL, Circuit Judges.
GRIFFIN B. BELL, Circuit Judge.
1
This is an estate tax case. The opinion ot the District Court is reported at 189 F. Supp. 830. Suit was filed by the executors of the estate of Lowell H. Stapf for a refund of estate taxes and interest paid pursuant to a deficiency asserted against the estate.
2
All facts have been stipulated. Mr. Stapf died testate on July 29, 1953, a Texas resident and domiciliary. His will was probated in Texas where his principal estate consisting of separate and community property, was situated. His will put his wife to an election1 either to elect not to take under the will and thereby retain her one-half interest in the community estate, or to allow her one-half interest to be disposed of under his will in order that she might receive specified benefits thereunder.
3
The benefits included one-third of the residue, consisting of the whole of the community property, and separate property of a value of $65,100 owned by the decedent, less specific bequests. The benefits also included an automobile, itself community property in which the widow owned a one-half interest. The will provided that if she should elect to take under its provisions, all funeral expenses, costs of administration and claims against the estate, whether community or separate, should be paid out of the one-half interest of decedent in the community property. Community debts totalled $32,367.74, while expenses of administration, including attorneys' fees, were $4,073.47 and the community of the husband was sufficient to pay these.
4
Electing not to take under the will, the widow would have retained her one-half of the community property, subject to its pro-rata share of expenses of administration and one-half of the community debts, having a net value of $111,442.68. Taking, she became entitled to one-third of the gross value of decedent's separate estate ($21,666.66), the one-half interest of the husband, valued at $700 in the community automobile, and one-third of the combined community estate. This had a value of $106,268.18, or $5,174.50 less than the value of the interest Mrs. Stapf would have retained had she not elected to take under the will. Computed differently but with the same result, the widow, retained a one-third interest out of the one-half of the community owned by her, thereby transferring only a one-sixth interest under the election to take. Under this method of computation she transferred property having a valuation of $27,541.16 and received property being the one-third interest in the separate property of the husband and the one-half interest in the automobile of the aggregate value of the $22,366.66, making a net loss to her of $5,174.50. The government uses one method while the taxpayer uses the other. Either is sufficient for our purposes.
5
The taxpayer, having been notified of a deficiency after filing the estate tax return, paid the deficiency and claimed a refund. It being denied, suit was filed and this appeal is from the judgment of the District Court. The taxpayer appeals from the disallowance of the community debts and administration expenses as deductions from the gross estate of decedent under 812(b) of the Internal Revenue Code of 1939, 26 U.S.C.A. 812(b). The government appeals from the allowance of an exclusion from the gross estate as a part of the marital deduction of the one-third of the separate property of decedent and the one-half interest in the community automobile passing to the widow under her election to take under the will, contending that this devise was incumbered or obligated within the meaning of 812(e)(1)(E)(ii) of the Internal Revenue Code of 1939, 26 U.S.C.A. 812(e)(1)(E)(ii), in an amount exceeding the value of the devise received by the widow in that the property transferred by her was of a greater value than that received by her.
6
As to the deductibility of the total of the debts and expenses from the community of decedent alone,2 812 of the Internal Revenue Code of 1939, as amended, being the applicable statute, provides in part:
7
'812. Net estate
8
'For the purpose of the tax the value of the net estate shall be determined, * * * by deducting from the value of the gross estate-- * * *
9
'(b) * * * such amounts--
10
'(1) for funeral expenses,3
11
'(2) for administration expenses,'(3) for claims against the estate, * * * as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered, * * *. The deduction herein allowed in the case of claims against the estate * * * shall, when founded upon a promise or agreement, be limited to the extent that they (are) contracted bona fide and for an adequate and full consideration in money or money's worth * * *.'
12
This section is the same as 303 of the Revenue Act of 1926 with respect to which it was said in First-Mechanics Nat. Bank of Trenton v. Commissioner of Internal Revenue, 3 Cir., 1940, 117 F.2d 127, 132 A.L.R. 1459:
13
'Unquestionably, a claim against a decedent's estate which is allowed by the laws of the jurisdiction under which the estate is administered is deductible in determining the net estate subject to federal tax. The Revenue Act applicable to the instant case specifically so provides.'
14
Cf. Blair v. Stewart, Footnote (3), supra; and Lang's Estate v. Commissioner of Internal Revenue, 9 Cir., 1938, 97 F.2d 867, on appeal from the Board of Tax Appeals, 34 B.T.A. 337. Thus, uniformity in the application of the statute was not expected by the Congress, and we look to the law of Texas to determine this issue.
15
The principle that Community debts are deductible in their entirety from the community interest of the decedent in determining estate tax liability where directed by the provisions of the will was recognized, although not applied, in Lang's Estate v. Commissioner, supra:
16
'On this issue we think the Board was correct in permitting a deduction of only one-half of these community obligations. Regardless of the incidents of the husband's personal liability for community debts during his lifetime, section 1342, Remington's Revised Statutes, supra, as construed by the Supreme Court of Washington, requires that community debts be satisfied pro rata from that portion of the community property distributable to the wife and that portion subject to the husband's testamentary disposition. It is only by provision of a deceased husband's will that a community debt may be charged solely against his share of the community. Redelsheimer v. Zepin, 105 Wash. 199, 202, 177 P. 736; In re Hart's Estate, 150 Wash. 482, 492, 273 P. 735.'
17
There was no provision in the will in that case the charge the whole of the claims against the community of the decedent, but the holding was that the claims in any event were not personal obligations of the decedent within the meaning of the Washington law as required by the regulation.
18
The Applicable Treasury Regulation, 105 (1939 Code), provides in pertinent part:
19
'Sec. 81.29 Deduction of administration expenses, claims, etc.-- In order to be deductible * * * the item must fall within one of the several classes of deduction * * * enumerated * * * and must also * * * be one of payment of which out of the estate is authorized by the laws of the jurisdiction under which the estate is being administered. Unless both of these conditions exist the item is not deductible. * * * If a claim against the estate, an unpaid mortgage, or an indebtedness is founded upon a promise or agreement, the deduction therefor is limited to the extent that the liability was contracted bona fide and for an adequate and full consideration in money or money's worth, * * *.'
20
'Sec. 81.32 Administration Expenses-- * * * Administration expenses include (1) executor's commissions; (2) attorney's fees; (3) miscellaneous expenses. * * *''Sec. 81.36 Claims against the estate.-- The amounts that may be deducted under this heading are such only as represent personal obligations of the decedent existing at the time of his death, * * *. Only claims enforceable against the decedent's estate may be deducted. If the claim is founded upon a promise or agreement, the deduction therefor is limited to the extent that the liability was contracted bona fide and for an adequate and full consideration in money or money's worth. * * *'
21
Measured by the criteria of the statute and the regulation, which adds the additional requirement that the claims be personal obligations, we hold that the debts and expenses here were deductible in full from the community interest of decedent, and reverse to that extent.
22
First, the Texas case law makes it abundantly clear that decedent by the terms of his will could so obligate his estate and his community property. Medlin v. Medlin, Tex.Civ.App., 1947, 203 S.W.2d 635; and Matthews v. Jones, Tex.Civ.App., 1952, 245 S.W.2d 974. It is true that neither of these cases involved taxes, but the regulation here requires only that the payment be authorized under the Texas law. Cf. In re Marinos' Estate, 1940, 39 Cal. App. 2d 1, 102 P.2d 443.
23
Second, the government contends that only one-half of the debts represented personal obligations of the decedent and for that reason only one-half may be claimed as deductible. Cf. Lang's Estate, supra. This, too, is a question of state law. The general rule is that on dissolution of the community the husband, but not the wife is personally liable for community debts. 42 C.J.S. Husband and Wife 566b(1), p. 100. This is the law of Texas. A judgment could have been obtained against the estate of decedent for the full amount of the community debts. Of course, the community of the wife under Texas law is liable for payment of the community debts, and her husband could recover from it for advances made to pay community debts, but no personal judgment could be obtained against her for community debts. The surviving wife does not personally owe the community debts. Leatherwood v. Arnold, 1886,66 Tex. 414, 1 S.W. 173; Security Nat. Bank of Wichita Falls v. Allen, Tex.Civ.App., 1924, 261 S.W. 1057; Sargeant v. Sargeant, 1929, 118 Tex. 343, 15 S.W.2d 589; and Anderson v. Bundick, Tex.Civ.App., 1952, 245 S.W.2d 318. The debts were personal to decedent and to him only under the Texas law. The fact that the community property or even his property was sufficient to pay the debts does not take them out of the personal category.
24
Third, it is contended that there was no full and adequate consideration for more than one-half of the debts. The statute itself was amended in 1932 to make it clear that this requirement applies only where the debt is founded upon a promise or agreement,4 and thus we do not reach the question of consideration for the debts here were in the main for income taxes and ad valorem taxes, debts imposed by law. The contention of the government would be well taken if the debts were founded on contract; otherwise a deduction could be claimed against the estate of decedent for a debt where one-half of the consideration received under the debt, such as the proceeds of a loan, went into the estate of the surviving wife. Here, however, no effort has been made to segregate the debts as between being founded on contract or imposed by law and none are pointed out as arising under contract.
25
The direction in the will of decedent, and the Texas law, coupled with the provisions of the Revenue Statute and Regulation, make it clear that the total of the debts and expenses of administration as specified in the findings of fact by the District Court were deductible from the gross estate of decedent. The District Court erred in not so holding. Cf. Estate of McGugan v. Commissioner of Internal Revenue, 1942, 47 B.T.A. 658 where the expenses of last illness and funeral expenses were allowed as a deduction from the gross estate of the wife, although these expenses were the primary liability of the husband under Florida law, where the wife provided by her will for payment out of her estate. See also Estate of Sarah H. Bradley v. Commissioner, Memorandum opinion, Docket No. 106452, 1943, CCH, 2 TCM 609 involving a Georgia estate to the same effect.
26
We affirm that part of the judgment holding that the devise to the widow of one-third of the separate property of decedent and the one-half interest in the community automobile qualified as a part of the marital deduction or exclusion from the estate of decedent.5
27
Certain basic facts must be borne in mind in considering this quesiton. There was no exchange of property between the testator and Mrs. Stapf, and she did give to the testamentary trust set up by decedent more than she received under the will. Only decedent's one-half interest in the community property is includible in his gross estate for federal tax purposes, Commissioner of Internal Revenue v. Chase Manhattan Bank, 5 Cir., 1938, 259 F.2d 231, and there is no contention that the property of the widow passing by the election under the will of decedent became a part of his gross estate for estate tax purposes. And, lastly, under the Texas law the devise of one-third of the whole community to the widow did not pass to her under the will but was satisfied out of her own one-half. Jones v. State, Tex.Comm.App., 1928, 5 S.W.2d 973; and Calvert, Comptroller v. Fort Worth National Bank, Tex., 1962, 356 S.W.2d 918, 919.
28
The statute here in question, par. (E)(ii) of 812(e)(1), supra, having to do with the valuation of marital deduction property passing from a decedent to his surviving spouse is as follows:
29
'(E) Valuation of interest passing to surviving spouse. In determining for the purposes of subparagraph (A) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this subsection--* * *
30
'(ii) where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such incumbrance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.'
31
The government relies on Treasury Regulation 105, (1939 Code), 81.47c(b), which extends the language of this statute to include an election as here, specifying by example that in computing the marital deduction the value of the bequest to a widow is to be reduced by the value of the community property interest relinquished by her. Neither this section of the Act or its legislative history envision such an example or result.6 The regulation in this regard changes the plain terms of the statute by sweeping away the last clause thereof and must give way to the statute. Koshland v. Helvering, 1936, 298 U.S. 441, 56 S. Ct. 767, 80 L. Ed. 1268; Miller v. Commissioner of Internal Revenue, 5 Cir., 1956, 237 F.2d 830.
32
We also put aside the contention of the taxpayer that an encumbrance or obligation to be taken into account in valuing the property to be excluded means an encumbrance or obligation on the property such as a lien against the property for a debt, as distinguished from an obligation or encumbrance in the nature of a condition as here under the election. Wachovia Bank & Trust Co. v. United States, 1958, 163 F. Supp. 832, 143 Ct. Cl. 376.
33
We look to the terms of the statute itself for its meaning. The last clause of it teaches how the valuation is to be computed and this is the key to the determination of this issue. It shall be taken into account in the same manner as if the amount of a gift of such interest by the husband to his wife was being determined.
34
The value of a gift by a husband to a wife of property, on the condition that she surrender to, or give for the benefit of a third party a portion of her property, would not be reduced or 'netted' by the amount of property given up by the wife. There must be a monetary consideration or like benefit to the oiginal donor before the value of the property surrender is to be deducted from the value of the gift. Commissioner of Internal Revenue v. Wemyss, 1945, 324 U.S. 303, 65 S. Ct. 652, 89 L. Ed. 958; Commissioner v. Bristol, 1 Cir., 1941, 121 F.2d 129; and Estate of Bartman, 1948, 10 T.C. 1073. All that Mrs. Stapf did by her election was to take the property devised to her and in turn surrender part of her property to the trust for the benefit of her children. Within gift tax confines the community property of the widow passing under the will of the husband to others may not be 'netted' against the devise to the widow, and thus testator, were the transfer inter vivos, would be liable for gift taxes on the full value of the devise.7 Viewed in this light the devise of the one-half interest in the automobile and the one-third interest in the separate property of the testator qualify as a part of the marital deduction and the District Court did not err in so holding.
35
The gift and estate tax statutes complement each other. Here estate taxes are due now on the property of the husband with the devise to the widow excluded. It is a part of the marital deduction or exclusion on which taxes are deferred to the estate of the widow to be assessed on so much of it as survives on another day. The net of the transfer by the widow became subject to gift taxes at the time of the transfer. The property transferred by the widow will, to the extent of an amount equal to the devise to her, escape both gift and estate taxes. Nevertheless, and this applies alike to our holding on the deductibility of the debts and expenses of administration here, it is something permitted by the statute and proscription, if indicated, is for the Congress.8
36
Having reversed in part and affirmed in part we remand for such other and further proceedings as may be necessary and which are not inconsistent herewith.
37
WISDOM, Circuit Judge (dissenting).
38
I respectfully dissent.
39
With deference, I feel compelled to say that, in my opinion, the result reached by the majority is repugnant to fundamental principles of community property law. Nothing in Texas law requires the holding. Nothing in tax law requires it. And, the decision is inconsistent with the purpose of the equalization provisions of the Revenue Act of 1948 which put an end to the tax War-Between-the-States.
I.
40
Testamentary Instructions to Pay Community Debts and Administration Expenses.
A. The Will
41
This case stands alone. As far as I have been able to discover, no one, in Texas or in any other traditional community property state, ever before dreamt up the notion that by instructing his executors to pay the community debts from his share of the community a testator could:
42
(1) Double the federal estate tax deduction for his half of the debts of the community and
43
(2) Correspondingly increase his widow's share of the community which, as her share by vested right, is not includible in his taxable estate.
44
This notion is so contrary to one's ingrained understanding of the community as a partnership that I question whether Stapf's will did indeed intend the executors to take the extreme position they have taken. The will does not in terms require it.
45
The will does make plain the testator's intention that the debts and charges against the community should be payable from his share of the community or from his separate property. This is a testamentary provision common in a community property state. 'There is no doubt', as Judge Dooley, the district judge below, remarked, 'that a testator may lawfully exercise selectivity among different portions or different devises and bequests of his estate and order an impact of liabilities resulting in disproportionate burdens, or even a total burden on the one hand and exoneration on the other, and that is true in respect to payment of taxes, even the Federal Estate Tax.' 189 F. Supp. 830, 834. Unually, 'the intention of the testator (is) to give his wife her interest in the community estate free from all claims or debts so far as the other legatees (are) concerned.' Redelsheimer v. Zepin, 1919, 105 Wash. 199, 177 P. 736. See also In re Hart's Estate, 1929, 150 Wash. 482, 273 P. 735.1 'This would allow of the division or partition of the community property between the surviving spouse and the heirs of the deceased spouse before debiting against such property the community property debts, so that the share going to the surviving spouse would go free of any liability for the community debt.' 1 De,Funiak, Principles of Community Property Law, 211 (1943). The Texas cases cited in the majority opinion are to the same effect. Medlin v. Medlin, Tex.Civ.App., 1947, 203 S.W.2d 635; Matthews v. Jones, Tex.Civ.App., 1952, 245 S.W.2d 974. In such cases, the dispute is only over the construction of the will. There is no holding and no intimation in these decisions that the purpose or effect of a will such as Stapf's is to enable executors to take a tax deduction for paying the debts chargeable by law to the wife's share of the community.
46
A simple, reasonable construction of the will is that Stapf's purpose was to make the inducements so attractive Mrs. Stapf would feel duty bound to take under the will. Should she resist the will, her share of the expenses and debts would be payable from her half of the community. The legal effect of the pertinent testamentary language is to make a conditional gift or legacy to the widow in an amount equal to half of the charges against the community. The bequest is at the expense of the other distributees and effects a redistribution of the decedent's estate. But it is no different from instructions to the executors to pay the mortgage on a son's house, or to pay the debts of a third person. It is a straight pencuniary legacy.
B. Texas Law
47
The basic error of the majority lies in their not recognizing that in the settlement of the community, following its dissolution, the community is regarded as a third person, vis-a-vis husband and wife. It is not a civil person in the common law sense, but time and again courts have referred to it as a separate entity. 'The laws of Washington establish a community between spouses which is a separate entity, 'just as a corporation or an association."2 More often, the community is described as a partnership. 'The law recognizes a partnership between the husband and the wife * * * (who) are entitled to an equal share in the community. * * * At the same time both are liable in equal proportion, for the losses and debts incurred during its existence'. Schmidt, Civil Law of Spain and Mexico, T. 1 c. IV, Sec. 1, art. 43, 49, p. 12 (1851). In a very early case the California Court said:
48
'Our whole system, by which the rights of property between the husband and wife are regulated and determined is borrowed from the civil law and Spanish law. * * * The relation of husband and wife is regarded by the civil law as a species of partnership, the property of which, like that of any other partnership is primarily liable for the payment of its debts.' Packard v. Arellanes, 1861, 17 Cal. 525, 531, 537.
49
In Texas the community is sometimes referred to as a 'trust,' but 'there is nothing in such a 'theory' that conflicts with the view of a marital partnership, a term frequently used by the Texas Courts, since it is merely designed to make clear that fiduciary obligations are imposed upon the one holding the legal title, the same fiduciary obligations which are imposed on any partner who has control and management of partenrship assets.' 1 DeFuniak, Principles of Community Property 95 (1943). In an authoritative discussion of Texas community property law,3 Judge Hannah described the community:
50
'The relationship of the spouses in Texas during their life time is substantially that of partners in a commercial partnership, and the husband and wife are in all respects equal partners, the husband being the managing partner and vested with management powers.'
51
As DeFuniak comments, 'It is difficult to see how it can be observed in any other light, for it represents the right to share equally in acquests and gains of the spouses during the marriage as well as liability for the obligations incurred on behalf of the community, usual attributes of partnership.' 1 DeFuniak, Principles of Communityn Property, 95. of Community Property, 95. is regarded as a partnership separate from the partners, Texas law provides that the community property of husband and wife 'shall be liable for their debts contracted during marriage.' Art. 4620, Vernon's Ann.Tex.Civ.Stat. And, Section 156 of the Texas Probate Code, V.A.T.S., provides:
52
'Community property, except such as is exempt from forced sale, sahll be charged with all valid and enforceable debts existing at the time of the dissolution of marriage by death.'No individual has the testamentary power to change this law of Texas. In every case the community passes with the debts of the community charged against it. Tex.Prob.Code 45, 156.
53
Death dissolves the community. Then, as in the dissolution of a partnership, there is an equitable accounting between the separate estates of huband and wife and the community. See 30 Tex.Jur.2d, Husband and Wife, 134 and cases there cited. The personal liability of the husband provides no basis for shifting to him all of the community debts, even if he had paid the debts from his separate funds. 'It is a well established rule of law that the separate estate of one spouse must be reimbursed by the community estate for advances from such separate estate.' Snodgrass v. Robertson, Tex.Civ.App., 167 S.W.2d 534, err. ref. W.O.M. Even when a husband is sused and held liabel on when a husband is sued and held liable on community is not relieved of liability. 'It is well settled in (Tezas) that even is well settled in (Texas) that even to an action by or against the husband concerning the community property, she is still bound by a judgment rendered against the husband in the action. This rule is based on the doctrine of virtual representation under which the husband is by law, designated the representative of the wife's interests in the community.' 30 Tex.Jur.2d., Husband and Wife, 167.
54
The husband's personal liability, on which the majority relies as the principal basis for their decision, does not reduce the community's liability. It does not affect the liability of the widow's share for half the debts. It does not increase the amount (one-half) of the claims against the husband's estate when the community is sufficient to satisfy the claims. Thus:
55
'Under our law the community property is the primary fund for the payment of community debts, and we think that, where there exists sufficient community property to pay the community debts, no resort can be had to the separate property of the deceased husband for the purpose of paying such debts, though such property is, of course, liable if the community property should prove to be insufficient.' Clark v. First Nat. Bank, Com.App.Tex., 1919, 210 S.W. 677, 679.
56
In short, the personal liability of a husband is that of a surety. If a husband pays community debts out of his separate estate, the community reimburses the separate estate on dissolution of the community. The wife is a special partner in a limited partnership since her liability is limited to her share of the partnership assets. The general partner's (the husband's) liability is unlimited because it is he who has the control and administration of the partnership. But the husband's unlimited liability for community debts and the wife's limited liability for such debts are no more determinative of their respective rights and liabilities as owners of the community, than are the corresponding liabilities of a general partner and the special partner in a commercial partnership in the common law in determining their respective property rights and liabilities. The fact that only the husband may be sued does not relieve the wife's share of any liability; it is really the community that is sued and must pay the claim to the extent of the community estate.
57
This brings us to the question of the effect of Stapf's will under Texas law. Texas law is clear beyond a doubt: if there had been no will, since the community was able to pay its debts only half of the debts would be allowed against Stapf's estate. Should the will make a difference? No. The wife's share was charged with half the debts before Stapf's death. His death dissolved the community, making it impossible for Stapf to change the status of claims fixed prior to his death. The only change the will could make would be by providing a method for payment of debts. But a testamentary direction to executors to make a payment from the decedent's estate, to the benefit of another, is simply a legacy.
58
If the reasoning of the majority were sound, logically Stapf's will should not affect the majority's conclusion. Their decision rests on the husband's personal liability for the community's obligations. But that liability exists without a will. It is completely independent of a will. Whether or not a husband is personally liable, when the community is dissolved Texas law divides the liabilities as it divides the assets.
C. Tax Law
59
1. The 'Claim' contemplated. Section 812(b)(3), Internal Revenue Code of 1939, permits the deduction of such 'claims against the estate * * * as are allowed by the laws of the jurisdiction * * * under which the estate is being administered.' The state law does not apply of its own force. The federal tax law, for its own purposes, incorporates state law by reference. See Hart and Wechsler, The Federal Courts and the Federal System, p. 456; cf. Towner v. Commissioner, 182 F.2d 903, 907 (2d Cir., 1950). The role played by state law in the taxing statute is explained by the Supreme Court in Morgan v. Commissioner, 309 U.S. 78, 80, 60 S. Ct. 424, 426, 84 L. Ed. 585, 626, (1940):
60
'State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed. Our duty is to ascertain the meaning of the words used to specify the thing taxed. If it is found in a given case that an interest or right created by local law was the object intended to be taxed, the federal law must prevail no matter what name is given to the interest or right by state law.'
61
A similar principle should be applied in allowing or disallowing a claim under 812(b)(3). The question to ask is whether a claim is the type of claim against the estate contemplated by the taxing statute.
62
The type of claim allowable as a deduction in determining the amount of a decedent's estate cannot be a claim based solely on the husband's personal liability for community debts. That is only a potential liability to creditors which is washed out in this case since the community property was sufficient to satisfy the debts of the community; claims against a solvent community after dissolution of the partnership are not against the decedent personally but are attributable to the marital estate. In the accounting between the separate estates of husband and wife and the community, the husband's liability would be for only half the claims. 'Regardless of the incidents of the husband's personal liability for community debts during his life time * * * community debts (are) satisfied pro rata from that portion of the community property distributable to the wife, and that portion subject to the husband's testamentary disposition.' Lang's Estate v. Commissioner, 9 Cir., 1938, 97 F.2d 867. This puts the tax where it naturally falls, on half of the net community-- the only part over which Lowell Stapf had testamentary control.
63
The salient feature of a true 'claim' is its involuntary nature. The debtor owes the claimant money and the claimant has a right to payment irrespective of the debtor's wishes. In this case the claim is provable against the testator's estate only because of the decedent's voluntary and gratuitous testamentary assumption of the claim. In United States v. Mitchell, 7 Cir., 1934, 74 F.2d 571, the Seventh Circuit, in discussing whether an obligation, voidable under the Statute of Frauds, could be deducted if the executors had waived the defense and paid the claim, stated: 'Nor can an asserted obligation which was enforceable only at the option of the deceased obligor be deducted.'
64
2. Authorities. Neither First-Mechanics Nat. Bank of Trenton v. Commissioner, 3 Cir., 1940, 117 F.2d 127, nor Lang's Estate v. Commissioner, 9 Cir., 1938, 97 F.2d 867, relied on by the majority, supports the Court's holding. Each, especially Lang's Estate, points the other way. In First-Mechanies the court refused to allow as a deduction debts voluntarily paid by the estate and approved by the state orphan's court. It concluded that since the estate was not obligated to pay the claim, the claim was not deductible. In Lang's Estate, as in this case, the taxpayers argued that under the law of the State of Washington, since 'a husband is personally liable for community debts, as fully as is the community', the 'entire amount of these community debts should be deducted from the gross estate.' The court repudiated this contention:
65
'Regardless of the incidents of the husband's personal liability for community debts during his lifetime, section 1342, Remington's Revised Statutes, supra, as construed by the Supreme Court of Washington, requires that community debts be satisfied pro rata from that portion of the community property distributable to the wife and that portion subject to the husband's testamentary disposition. It is only by provision of a deceased husband's will that a community debt may be charged solely against his share of the community. Redelsheimer v. Zepin, 105 Wash. 199, 202, 177 P. 736; In re Hart's Estate, 150 Wash. 482, 492, 273 P. 735. If there be sufficient community property in the estate to discharge the obligations here in issue, then no more than one-half can be termed personal obligations of the decedent.' Lang's Estate v. Commissioner, 9 Cir., 1938, 97 F.2d 867, 871, 872.
66
In the next to last sentence of the quotation, on which the majority rely heavily, all that the court was saying was that Lang's will had not provided for payment of community debts out of his share; as a matter of property law, the claims were not provable against Lang's estate. The Ninth Circuit's citation of Redelsheimer v. Zepin and In re Hart's Estate makes this plain. Neither of these cases had anything to do with taxes; they turned on whether the testator intended burdening his share of the community with payment of all of the debts. Thus, Redelsheimer v. Zepin, holds that the testator intended 'to give his wife her interest in the community estate free from all claims or debts so far as the other legatees * * * are concerned.' In Hart's Estate the court held that the testator intended 'all the debts should be first paid from (the) decedent's property, thus passing to (the) appellant her community interest in the estate free and clear of all of the community indebtedness.' Of course, in the absence of a claim provable against the estate, as a matter of property law, the question facing this Court did not arise.
67
All of the tax authorities agree that where, 'under local law, a claim is both an obligation of the community as well as a personal liability of the deceased husband, and it must be satisfied pro rata out of both shares to the extent that there are sufficient funds, no more than one-half is a 'personal obligation' of the decedent and hence only one-half is deductible.' Mertens' Law of Federal Gift and Estate Taxation, 26.20. See also Jackson, Community Property and Federal Taxes, 12 S.W.L.Jour. 43 (1958); Childress, Community Property in Administration of Estates in Texas, Tex. Inst., 5th Ann.Tax.Conf. (1957), 155, 167; Warren and Surrey, Federal Estate and Gift Taxation (1961), p. 710; Lowndes and Kramer, Federal Estate and Gift Taxes (1962), 15.18, p. 347.
68
The executors find support for their position in two tax court cases dealing with funeral expenses: Estate of McGugan, 47 B.T.A. 658 (1942) and Estate of Bradley, 12 P-H Tax Ct.Mem. 1195, CCH 2 TCM 609 (1943). These were Florida and Georgia cases; they did not involve community property. Besides, Stapf's funeral expenses are not at issue here; they were allowed as a full deduction. There is little or no analysis of the rationale for allowing the deduction in either case, other than the statement in Estate of Bradley that since the sums were actually expended by the executors and approved by the state court having jurisdiction, they were deductible. Such a statement is clearly incorrect. In Fidelity-Philadelphia Trust Co. v. United States, 3 Cir., 1955, 222 F.2d 379, the Third Circuit held that executor's commissions were properly deductible only up to three per cent of the gross estate, even though the state orphans' court had allowed four per cent. 'The fact that a claim was presented and allowed in the Probate Court and subsequently paid by the executors has no bearing on the deductibility of the claim in question (incomputing the net taxable estate).' United States v. Mitchell, 7 Cir., 1934, 74 F.2d 571, 573; see Estate of Schoenfeld, 37 B.T.A. 36, 40 (1938).
69
The principles applicable to allowance of funeral expenses are completely inapplicable to allowance of debts or claims against the community. A claim for funeral expenses comes into existence after dissolution of the community. In Blair v. Stewart, 5 Cir., 1931, 49 F.2d 257; cert. den. 1931, 284 U.S. 658, 52 S. Ct. 35, 76 L. Ed. 558, this Court, construing Texas law, held that funeral expenses chargeable against 'the estate' were chargeable against the only estate being administered, 'the interest of the decedent in community property.' Since that case, 'It has been the uniform practice of examining revenue agents in Texas to allow all of the decedent's funeral expenses * * * as a deduction against the decedent's half of the community.'4 However, both courts and legislatures have stretched community property law in dealing with funeral expenses. Texas courts take the view that 'a decent regard for the memory of the dead' warrants holding the community liable for funeral charges, and have expressly disapproved of Blair v. Stewart. Norwood v. Farmers & Merchants National Bank of Abilene, Tex.Civ.App., 145 S.W.2d 1100, 1103, err. ref'd; see also Goldberg v. Zellner, Tex.Com.App., 235 S.W. 870; Richardson v. McCloskey, Tex.Civ.App., 261 S.W. 801; Tex.Com.App., 276 S.W. 680; Hocker v. Piper, Tex.Civ.App., 2 S.W.2d 997; Goggans v. Simmons, Tex.Civ.App., 1958, 319 S.W.2d 442.
70
3. Tax Effects. The subject of the federal estate tax is the transfer of ecomomic interests. A decedent's assumption of the debts of another cannot change the total of the economic interests transferred. It can only divert part of the total by a legacy equal to te debts assumed.
71
Under the majority's holding, the rich and shrewd in a community property state can put the estate tax out of business. For example, in the twilight of their years, a couple with community property worth $1,000,000 could borrow an additional $1,000,000 and invest it in securities, using the $2,000,000 as collateral. As a result, the community property would be increased from one million to two million dollars, and would have debts against it of one million dollars. If the husband provided by will that all community debts be paid out of his share of the community property, upon his death his share of the community property would be worth $1,000,000. All of this, however, would be matched by deductible community debts. Thus, under the Court's holding, the entire 'net' estate of $1,000,000 would pass, untaxed, to the wife.
72
If the majority decision is not corrected, the will of every informed taxpayer in all the community property states is certain to follow Stapf's will. Such taxpayers will enjoy a substantial advantage over taxpayers in common law states. With the same amount of property as that of a married couple in a common law state, a Texas widow's share of the community will be larger than the marital deduction, to the extent of one-half of the debts. Judge Dooley pointed this out clearly, 189 F. Supp. 830, 834:
73
'To say that a will with such provisions is effective under the law of Texas is not at all the same thing as saying that under the laws of the State of Texas, dealing with the allowance of claims in the course of probate and administration or in levying the state inheritance tax, the law puts the power in the hands of a testator at will to alter the amount of deductible debt obligations up or down, depending on whether the testator chooses to assume separately all of the community debts or prefers to let the survior of the marital community bear one-half of such liability. The Federal Estate Tax Law was revised and altered materially in 1948 with the purpose of achieving approximate equality among taxpayers in community and non-community states. It is not readily apparent how a testator in a non-community state could very well deplicate the advantage sought in behalf of the present estate.'
D. Costs of Administration
74
The majority opinion does not differentiate between funeral expenses, administration expenses, and debts. Each of these, however, is a distinct category controlled by its own rationale in the determination whether it is chargeable to the decedent's estate or to the community. They cannot be lumped together. The official Interpretative Commentary to Section 322 of the Texas Probate Code, for example, states that funeral expenses, expenses of administration, and expenses incurred in the preservation, safekeeping, and management of the estate 'are not debts of the decedent'. As pointed out in this opinion, notwithstanding Blair v. Stewart, supra, Texas courts treat funeral expenses as charges against the community.
75
It the husband should die first, half of the costs of administration are charged against his estate, because the entire community is included within the administration.5 Schumacher, 8 T.C. 453 (1947). If the wife should die first, all of the expenses of administration are deductible because only her half of the community is administered in her estate. Blackburn's Estate v. Commissioner, 5 Cir., 1950, 180 F.2d 952.
76
The district judge, as I see it, properly allocated 70 per cent of the expenses of the administration to the community, that is, 35 per cent to the widow's share and the 35 per cent plus the remainder of 30 percent to the decedent.6 This seems a fair allocation. As noted by Judge Dooley, the executors spent a great amount of their time in connection with the administration of the community. There is no good reason for giving Mrs. Stapf a free ride.
E. Conclusion
77
Strong economic, social, and moral reasons support the view that marriage is a full partnership between equal partners. Judge Dooley speaks for all of the traditional community states when he says, there is a 'deep-rooted tradition * * * that liabilities against the whole community estate should be borne half and half, in the true spirit of the marital partnership.' 189 F. Supp. 830, 835.
78
It is not easy to fit community property concepts smoothly into a tax system essentially derived from principles extracted from some sort of a 'brooding omnipresence in the sky.' As a consequence, for many years the integrity of the community property system as an institution was under almost continuous attack from taxpayers understandably resentful that citizens in common law states should pay higher federal taxes than citizens in other states. The attack reached its peak in the Revenue Act of 1942. This statute, ignoring the wife's vested ownership in community property and community earnings, treated her half as owned by the husband. The Act required the inclusion of the whole community in the taxable estate of the first spouse to die. The statute may have been motivated by ideals of tax equality and uniformity, it may have been grounded on sound tax arithmetic, but it struck a severe blow against what many persons regard as an enlightened concept of the marital relationship and the status of married women. Finally, in the tax equalization provisions of the Revenue Act of 1948, after years of negotiation, a delicate but balanced reconciliation of interests was achieved by putting taxpayers in the common law states on the same paying basis as taxpayers in community property states 'without tinkering with the property law of the states.'7 There are some who condemn the 1948 Act as not consistent with federal emphasis on control as the chief criterion in taxing, and as having generated new inequalities.8 But the Act has saving graces. It works. The tax inequalities it created are relatively minor. In common law states the Act's reliance on check-book equality prevents any pressure from being exerted to introduce an alien legal institution. And, in community property states federal tax laws now no longer run counter to laws and customs long rooted in the civil law concept of the marital relationship as a partnership between husband and wife.9
79
This decision imperils the tax reconciliation between the States. The irony of it is that in the name of Texas and taxes, the holding egregiously offends Texas law and tax law.
II.
80
The Marital Deduction.
81
The election device, borrowed from the common law and an anomaly in a community property system, enables a testator to exchange a marital bequest for the power to dispose of his widow's share of the community over which, by law, he has no testamentary control.10 The usual transaction is three-cornered, since the widow's property passes not to or through the estate but to a trust. Here, as a result of his widow's election, Lowell Stapf increased the amount of the property he controlled in his will.
82
The purpose of the marital deduction is to give to taxpayers in common law states the same tax benefits from a marital bequest that a surviving spouse has from her share of the community. To round it out, taxpayers in community property states are allowed a marital deduction up to one-half of the amount of the separate property.11 The Act has two built-in requirements integral to a bequest qualifying as a marital deduction: (1) There must be no strings. The surviving spouse to whom the bequest is made must be given rights substantially equivalent to the absolute rights a surviving spouse has in her share of the community. This is the price the husband pays to obtain the marital deduction. (2) The property bequeathed must be includible in the widow's taxable estate or must be subject to a gift tax on its disposition by gift, that is, taxed again in the same generation. This is the price the widow pays to obtain the marital deduction. These requirements tend to offset a large loss of tax revenue, taking into consideration the frequency with which persons of means would otherwise avoid taxation of a widow's estate by means of a testamentary trust with the income for life to the widow and the remainder to others. The marital deduction was sold to Congress and bought by Congress on these representations. The policy and rationale of the Act override the language. This is, therefore, no case for evisceration of meaning by the dull edged knife of literalism.
83
Here, it is just not a fact that Mrs. Stapf had the same rights to the bequest that she had over the community property. A survivor's ownership of a half interest in community property is absolute, unburdened, vested from the moment of the community's acquisition of the property. On the other hand, here the marital bequest was conditional and burdened with the obligation of the widow's giving up more than she received. The testator failed to pay the price he is required to pay for a marital deduction; the string he attached enabled him to control equivalent property, so that for all practical purposes, the property was part of his disposable extate.
84
The surviving spouse also failed to pay the price tag Congress put on a marital deduction: The bequest did not increase her taxable estate by the amount of the property bequeathed. On the contrary, her taxable estate was reduced, since the value of her interest in the community, which she relinquished, exceeded the value of the bequest. She received no economic benefit from the bequest-- except the tax savings. Moreover, she owed no gift tax, because she surrendered more than she received.
85
After the dust settled, the economic result of this transaction was a gift by the testator of $106,268.18 to the trust, and a gift by the wife of $5,174.50 to the trust. There was, therefore, no gift to the spouse. This is fatal to the executors' contention. The marital deduction is concerned only with a gift to a spouse. The Act is concerned with the economics of the transaction, as is evident from the fact that in determining the value of a bequest, 'where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent * * * such incumbrance or obligation shall be taken into account'. When the dollar-effect is a minus $5,000 result for the widow, it is unreal and obfuscatory to speak of the bequest as a gift ot the spouse entitling the testator to a marital deduction.
86
The proper analytical approach, as I see it, is to recognize that we have a single three-cornered transaction involving the husband (H), the widow (W), and the trust (T).12 The bequest and the election cannot be separated and treated independently; the testator himself made that impossible. An example will clarify the approach, taking round numbers and changing the amounts so that they will be easy to follow. H dies, leaving $200,000 of separate property. The community amounts to $200,000. H's estate is $300,000; W's share of the community is $100,000. The will makes a bequest to W of $100,000 but puts her to an election requiring W to transfer her share of the community to T. W elects to take under the will, so her community interest of $100,000 goes to T. These are the economics: H has the same amount of property to dispose of as if he had made no bequest, $300,000, because of W's surrender of her property to H's testamentary control; W has time same amount of property, because the bequest of $100,000 is offset by the surrender of $100,000; T has $100,000 he did not have before. This is not my idea of the sort of a gift to a spouse that Congress had in mind when it enacted the marital deduction law.
87
Consider the tax effects, according to the majority holding. H would be entitled to a marital deduction of $100,000, bringing his estate down to $200,000. W owes no gift tax on the transfer to T, because the amount she transferred to T did not exceed the amount received. On W's death, there would be $100,000 only in her estate, if it were not consumed. Result, according to the majority: $100,000 escapes both estate and gift taxes. In 1948 the whisper of a rumor that the marital deduction might produce such a result would have torpedoes the Act.
88
In a common law state, the same result would be achieved only if the widow had property of her own. The scheme would have primary importance in a community property state because of the wife's ownership of half the community by operation of law. The majority's holding, therefore, tends to defeat the Act's purpose of placing all taxpayers on a par.
89
The result the majority reach is not dictated by the statute. Section 812(e) (1)(E) provides:
90
'(E) Valuation of interest passing to surviving spouse. In determining for the purposes of subparagraph (A) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this subsection--* * *
91
'(ii) where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such incumbrance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.'
92
If we gave the italicized words a common sense meaning, we must take them to exclude the necessity that the obligation be a pecuniary obligation, such as a mortgage, attached directly to the property. 'Any' incumbrance or obligation is broad enough to encompass the absolute obligation the decedent imposed here. See Ray, The Widow's Election, 15 S.W.L.J. 85, 141 (1961).
93
The Court subordinates the meaning of the section as a whole to a literal interpretation of 'gift' in the final clause: the obligation shall be 'taken into account in the same manner as if the amount of a gift to such spouse were being determined'. But, as in any 'as if' situation, the very use of those two little words is implicit recognition that the thing treated 'as if' it were the same is not the same. Some allowance, therefore, must be made for the lack of sameness where, for example, it would be inconsistent with the purposes of the legislation to treat the bequest here exactly as a gift. A bequest cannot be treated for all purposes as a gift; it is a testamentary disposition and the estate tax is involved.
94
The majority start with the premise that a marital bequest must be given the identical tax treatment as a gift. They point then to the unquestioned fact that in determining the taxability of a gift, a condition that the donee transfer a portion of her property to a third person does not reduce the value of the gift. The consideration must benefit the donor to relieve a transfer by him from being a gift. Commissioner v. Wemyss, 1945, 324 U.S. 303, 65 S. Ct. 652, 89 L. Ed. 958. Since Mrs. Stapf's transfer went to the trust, not to her deceased husband, the majority hold that the value of the bequest was undiminished by the widow's election.
95
As pointed out, a view so literal defeats the purposes and rationale of the Act. On the other hand, if we bear in mind that in fact the bequest is a testamentary disposition, not an inter vivos transfer,-- the donor is deceased-- it is constructive and in keeping with the intent of the Act to regard the bequest as a gift. We may accept the principle that in determining the value of a gift, benefits flowing to the donor, not detriment to the donee, is decisive. Here, then, to the extent possible and in the only way benefits may flow to a testator, Stapf received full consideration for his marital bequest by Mrs. Stapf placing her property within his testamentary control.
96
Wemyss is no obstacle to this approach. In that case the husband made an ante-nuptial transfer to his wife to compensate her for the loss of income from a trust established by her first husband; on her remarriage the income was to go to her child. This was held to be a taxable gift. But the donor in Wemyss, unlike the donor here, received no offsetting consideration or benefits from the immediate donee. If we look at the economic effect of the tripartite transaction in Wemyss, the husband made a gift to his wife's child, the inocme beneficiary of the trust. Wemyss, therefore, supports the argument I make here. In Wemyss, as in this case, because of the triangular neture of the transaction, the transferor made a taxable transfer that, in effect, was a gift to a third person, not to the spouse.
97
This brings us back to the dominant statutory intention to provide a tax deduction for a non-community property taxpayer making a gift to his surviving spouse equitable with the widow's half of the community. To the extent it is a gift to the spouse, after taking into account all obligations imposed by the decedent, it qualifies for the marital deduction. If, instead, the testator uses his widow as an interposed party to make a gift to a third person the transfer to the spouse cannot be regarded as a gift to her. Thus, Lowndes and Kramer take note of the district court's holding in the case before us but nonetheless sar:
98
'What the Regulations are driving at seems to be this. If a decedent bequeaths property to his wife in lieu of her interest in community property, which is not part of his estate and which does not pass to her from him, it seems clear that the only thing which the surviving spouse actually receives from the decedent is the excess of the interest bequeathed to her over and above the value of her interest in the community property. Therefore, this should be the only amount which qualifies for the marital deduction'. Lowndes and Kramer, Federal Estate and Gift Taxes, 17.5 (1962).
99
The statute does not refer to the effect of a widow's election. Moreover, the terms 'incumbrance', 'obligation', and 'takne into account' are imprecise. See 4 Mertens, Federal Gift and Estate Taxation 29.53 (1959). It is especially appropriate, therefore, for Treasury to issue Regulations and for courts to give weight to the administrative interpretation of these terms.
100
Example (1) of Section 81.47c(b) of Treasury Regulations 105 is no different from the instant case.
101
'(1) A decedent devised a residence valued at $25,000 to his wife, with a direction that she pay $5,000 to her sister. For the purpose of the martial deduction, the value of the property interest passing to the wife is only $20,000.'
102
Example (3) of the Regulation provides for just such a contingency as has arisen here:
103
'(3) A decedent bequeathed certain securities to his wife in lieu of her interest in property held by them as community property under the law of the State of their residence. The wife elected to relinquish her community property interest and to take the bequest. For the purpose of the marital deduction, the value of the bequest is to be reduced by the value of the community property interest relinquished by the wife.'
104
The Supreme Court has 'many times declared that Treasury Regulations must be sustained unless unreasonable and plainly inconsistent with the revenue statutes and that they constitute contemporaneous constructions by those charged with administration of these statutes which should not be overruled except for weighty reasons.' Commissioner v. South Texas Lumber Co., 1948, 333 U.S. 496, 501, 68 S. Ct. 695, 698, 92 L. Ed. 831, 836. I do not see any basis whatsoever on which the regulation governing marital deductions could be called 'unreasonable and plainly inconsistent with the revenue statutes'.
105
I would hold that when a testator burdens a marital bequest with the condition that his widow surrender her property to his testimentary control the condition is an 'incumbrance' or 'obligation' within the meaning of the Act. To the testator who is given power over property not otherwise within his testamentary control and to the spouse, the realities of the situation command recognition of the fact that the value of the bequest is the value of the property bequeathed over the value of the property surrendered by the surviving spouse. If the surviving spouse is worse off, this Greek-bearing-gifts bequest cannot qualify as a marital deduction, the justification for which is a no-strings spousal gift equivalent to the absolute ownership a surviving spouse has in the community.
106
I would affirm the district court on the first point and reverse the district court on the second point.
1
The doctrine of election under the Texas law is well established. See Dakan v. Dakan, 1935, 125 Tex. 305, 83 S.W.2d 620; Smith v. Butler, 1892, 85 Tex. 126, 19 S.W. 1083; and 44 Tex.Jur., Wills, 285 et seq
2
The debts of decedent totalled $32,367.74, all of which were community debts, including $23,701.34 due for 1951 income taxes, and interest thereon in the amount of $1,955.33. The expenses of administration totalled $4,073.47. The Commissioner determined that 65 percent of the expenses of administration should be allocated to and deducted from the gross estate of decedent, and the remaining 35 percent allocated to the widow's one-half of the community estate. This allocation was affirmed by the District Court and the allocation is conceded to be correct if the expenses are not deductible. Ad falorem taxes due amounted to $1,954.96
3
Allowed in toto here. Blair v. Stewart, 5 Cir., 1931, 49 F.2d 257
4
Senate Report No. 665, 72nd Congress, 1st Sess., p. 51 explains the amendment (805 of the 1932 Act) as limiting the requirement for consideration to liabilities founded on contract, as distinguished from liabilities imposed by law or arising out of torts
5
The Commissioner allowed the one-half community interest of the husband in the automobile as a part of the marital deduction. No issue was raised to such allowance by the government in the trial court where the allowance was affirmed. Now it is asserted that the Commissioner was in error in the allowance which was based on his belief that Mrs. Stapf would have received the automobile whether she elected to take under the will or not. While this belief of the Commissioner was incorrect because the devise of the automobile was also based on the election, under our decision we do not reach this question
6
Senate Supp.Report No. 1013, Part 2, 80th Cong., 2nd Sess.; House Report No. 1274, 80th Cong., 2nd Sess
7
Aliter on the transfer by the widow. The devise would be 'netted' against what she surrendered as she did receive consideration of the necessary type. commissioner v. Seigel, 9 Cir., 1957, 250 F.2d 339; Commissioner v. Chase Manhattan Bank, supra; and Turman v. Commissioner of Internal Revenue, 35 T.C. 1123
8
On the subject of a windfall under another tax statute, it has been aptly said:
'Granting the government's proposition that these taxpayers have found a hole in the dike, we believe it one that calls for the application of the Congressional thumb, not the court's.' Fabreeka Products Co. v. Commissioner, 1 Cir., 294 F.2d 876, 879, cited in The Hanover Bank, Ex'r v. Commissioner, 369 U.S. 672, 80 S. Ct. 1080, 8 L. Ed. 2d 187.
1
Both cases are cited in Lang's Estate v. Commissioner, 9 Cir., 1938, 97 F.2d 867
2
Lang's Estate v. Commissioner, 1938, 304 U.S. 264, 58 S. Ct. 880, 881, 82 L. Ed. 1331
3
Rompel v. United States, S.D.Tex., 1945, 59 F. Supp. 483, rev'd United States v. Rompel (Herbst), 1945, 326 U.S. 367, 66 S. Ct. 191, 90 L. Ed. 137. This is the Texas companion case to the Louisiana case of Wiener v. Fernandez, E.D.La., 1945, 60 F. Supp. 169, rev'd Fernandez v. Wiener, 1945, 326 U.S. 340, 66 S. Ct. 178, 90 L. Ed. 116 upholding the constitutionality of the Revenue Act of 1942. Both cases were carefully pleaded, briefed, and decided. Their import was thoroughly understood in all of the community property states, as well as in Texas and Louisiana
4
Childress, Community Property in Administration of Estates in Texas, Tex.Inst., 5th Ann.Tax Con. 155, 177 (1957)
5
DeFuniak explains the reason for this:
'The fact that where the husband dies the administration of the community property should be separate and apart from, arthough inside, the administration of the husband's estate which is taking place, seems not always to be understood. It must also be remembered that, although such an administration of the community property is taking place in order to pay community debts and accomplish a partition, half of the community property so being administered belongs not to the deceased husband but to the surviving wife, and always belonged to her from the moment of its acquisition during the marriage. * * * Administration of community property is a thing apart from ordinary administration, in that it is actually settling up matters relating to property which belongs in equal shares to the decedent's estate and to a living person and not merely the administration of property belonging entirely to the decedent's estate.' 1 DeFuniak, Principles of Community Property, Dissolution of Marital Community, 205, pp. 585, 586.
6
'Perhaps a better rule would be to fairly apportion these expenses between the estate and the surviving spouse on the basis of the time and effort expended on behalf of each estate. The services of the executor, the attorneys and accountants in seeing that the debts are paid and in getting half of the community into the hands of the surviving spouse are of benefit to the survivor's estate and some portion of these expenses may be equitably chargeable to such survivor.' Jackson, Community Property and Federal Taxes, 12 S.W.L.J. 1, 37 (1958)
7
Beveridge's phrase. Beveridge, 2 Law of Federal Law of Estate Taxation 181 (1956)
8
See Surrey, Federal Taxation of the Family-- The Revenue Act of 1948, 61 Harv.L.Rev. 1097 (1948); Anderson, The Marital Deduction and Equalization under the Federal Estate and Gift Taxes Between Common Law and Community Property States, 54 Mich.L.Rev. 1087 (1956). DeWind, The Approaching Crisis in Federal Estate and Gift Taxation, 38 Cal.L.Rev. 79 (1950). See also Momorandum Submitted by the Secretary of Treasury to the Senate Committee on Finance, March 1, 1948, Analysis of the Estate Gift Tax Provisions of H.R. 4790 (Revenue Act of 1948), reprinted in Warren and Surrey, Estate and Gift Taxation (1961). Lowndes and Kramer, Beveridge, and, not surprisingly, legal writers in the community states ahve found that after adoption of the 1948 Act the sky did not fall. Beveridge, Law of Federal Estate Taxation, Chap. 14 (1956); Lowndes and Kramer, Chap. 17 (1962). See Thurman, Jackson, Riehm, Nossaman, and Ray, cited in notes 17 and 18. See also Golden, A Decade with the Marital Deduction, 97 Trusts and Estates, 304 (1958)
9
See thurman, Federal Estate and Gift Taxation of Community Property, 1 Ariz.L.Rev. 253 (1959); Jackson, Community Property and Federal texes, 12 S.W.L.J. 1 (1958). Riehm, The Impact of Community Property Law on Federal Taxation, 4 S.W.L.J. 161 (1950)
10
For discussion of the widow's election and the marital deduction, see Ray, The Widow's Election-- A Study in Three Parts, 15 S.W.L.J. 85 (1961); Westfall, Estate Planning and the Widow's Election, 71 Harv.L.Rev. 1269 (1958); Brown, The Widow's Election as a Tax Savings Device, 96 Trusts and Estates 30 (1957); Brooks, The Tax Consequences of Widows' Elections in Community Property States, U.So.Cal.1951 Tax Inst. 83; Nossaman, Trusts Under The Revenue Act of 1948, U.So.Cal.1950 Tax Inst. 459
11
This is not a deduction for bequests of separate property, as such. Aside from the effect of community propety on the computation of the maximum allowable marital deduction, there is no difference partinent here between community property and separate property. Community property may qualify for the marital deduction. However, the amount of the decedent's interest in community property must be subtracted (along with deductions for administration expenses and claims against the estate) from his gross estate to arrive at an 'adjusted gross estate'. Section 812(e)(2)(B), Code of 1939. The marital deduction cannot exceed 50 per cent of this adjusted gross estate. Thus, the amount of the marital deduction is limited or determined by the amount of separate property
12
The approach we take is in keeping with Commissioner v Siegal, 9 Cir., 1957, 250, F.2d 339, affirming 26 T.C. 743 (1956). In that case the decedent's estate consisted entirely of community property. The husband's will created a testamentary trust with his widow as income beneficiary and his son as remainderman, and put his wodow to an election. The basic question was whether the value of the gift is reduced by the value of the property received by the donor from a third person. The court considered it all one transaction and permitted the reduction. The surrender by the widow of her community property rights, in effect, was a gift to the estate of the decedent to the extent that the value of the interest surrendered exceeded the value of the interest received. The Court spoke of the transaction as 'a contract supported by adequate consideration' and treated it as part gift and part exchange. To the same effect, see Chase National Bank, 25 T.C. 617 (1955), decided on other grounds, sub. nom. Commissioner v. Chase Manhattan, 5 Cir., 1958, 259 F.2d 231
I would distinguish Helvering v. Butterworth, 1933, 290 U.S. 365, 54 S. Ct. 221, 78 L. Ed. 365, on the basis of the difference between the Pennsylvania widow's dower rights which had no value prior to her husband's death, and the Texas wodow's interest in community property, which belonged to her prior to her husband's death and could be surrendered as the price of acquiring an interest in propety which she did not heretofore own. See Brooks, The Tax Consequences of Widows' Elections in Community Property States, U.So.Cal.1951 Tax Inst., 83, 88. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/418211/ | 707 F.2d 261
UNITED STATES of America, Plaintiff-Appellee,v.Paul PEPPLE, Defendant-Appellant.
No. 82-1040.
United States Court of Appeals,Sixth Circuit.
Argued April 19, 1983.Decided May 23, 1983.
Kenneth R. Sasse (argued), Detroit, Mich., for defendant-appellant.
Leonard R. Gilman, U.S. Atty., Martha Ellen Dennis, James L. McCarthy (argued), Asst. U.S. Attys., Detroit, Mich., for plaintiff-appellee.
Before MARTIN and CONTIE, Circuit Judges, and MARKEY, Chief Circuit Judge.*
CONTIE, Circuit Judge.
1
The defendant Paul Pepple appeals from his conviction of possession with intent to distribute 36,928 dosage units of LSD. 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2(a). The single issue on appeal is whether the district court erred in finding that the DEA agents had probable cause to stop the car in which the defendant was riding and arrest him. We affirm.
2
* Two undercover DEA agents met with Gregory Goddard and Carolyn Herring in a motel and arranged to buy a large quantity of LSD. The agents were instructed to wait in the rear parking lot until the supplier came to the motel. Goddard told the agents that the supplier bringing the LSD would stay in the front parking lot while the agents remained in the rear. Shortly thereafter, Goddard ran to the agents' car from the front of the motel and gave them a sample of 3,000 dosage units of LSD. Goddard was then arrested.
3
Prior to Goddard's arrest, other DEA agents had been watching the front of the motel. When these agents saw Goddard running from a row of cars in the front of the motel to the rear parking lot, they began to investigate cars in the front parking lot. One car that the agents investigated was a Thunderbird with two occupants. With the bright lights from the agents' car shining into the Thunderbird, the two male occupants of the Thunderbird displayed no reaction at all to the bright lights. The agents then moved on to investigate another car.
4
After Goddard's arrest, one of the arresting agents entered the rear of the motel and exited through the front. He began walking through the front lot looking for the supplier. As he walked through the parking lot back to his car in the rear, the Thunderbird slowly followed him. This was observed by the agents who had been watching the front of the motel and the Thunderbird. When the Thunderbird passed the last exit to the street and was obviously headed towards the rear parking lot, the agents stopped the car and arrested the two occupants. The driver of the Thunderbird was Douglas Ratajski and the passenger was the defendant. 36,928 dosage units of LSD were found in the car. The agents did not have an arrest warrant or a search warrant.
5
Goddard, Herring, Ratajski and the defendant were charged with conspiracy and substantive counts of drug possession. Goddard and Ratajski pleaded guilty. The defendant and Herring were tried together. Herring was acquitted on all counts and the defendant was acquitted of the conspiracy charge but convicted of possession with intent to distribute. At issue on appeal is the district court's denial of the defendant's motion to suppress the LSD found in the car.
II
6
To justify the stop of the Thunderbird and the subsequent arrest of its occupants, the agents had to have both probable cause to arrest and exigent circumstances to excuse the necessity for obtaining an arrest warrant. Only the existence of probable cause is challenged on appeal. Probable cause exists if the police officers have knowledge, at the time of arrest, of information sufficient to warrant a reasonable man to believe that a crime has been committed. The facts should be viewed as a whole and in a practical manner. United States v. Prince, 548 F.2d 164 (6th Cir.1977).
7
The district court's determination that probable cause existed to stop the car and arrest its occupants must be accepted unless it is clearly erroneous. United States v. Mathis, 298 F.2d 790 (6th Cir.), cert. denied, 370 U.S. 947, 82 S. Ct. 1595, 8 L. Ed. 2d 813 (1962). Accord, United States v. Wentz, 686 F.2d 653, 656-57 (8th Cir.1982); United States v. O'Connor, 658 F.2d 688, 690-91 (9th Cir.1981); United States v. Hart, 546 F.2d 798, 801-03 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1120, 97 S. Ct. 1155, 51 L. Ed. 2d 571 (1977). Labeling the determination of probable cause as an "ultimate" finding does not detract from its factual nature--other equally "ultimate" findings are tested under the clearly erroneous rule. See, e.g., United States v. Collis, 699 F.2d 832, 835 (6th Cir.1983) (finding that a person has been seized); United States v. Gargotto, 510 F.2d 409, 411 (6th Cir.1974), cert. denied, 421 U.S. 987, 95 S. Ct. 1990, 44 L. Ed. 2d 477 (1975) (finding of exigent circumstances); United States v. Hearn, 496 F.2d 236, 242 (6th Cir.), cert. denied, 419 U.S. 1048, 95 S. Ct. 622, 42 L. Ed. 2d 642 (1974) (finding of consent to search). The existence of probable cause depends on the particular facts of each case and often hinges a great deal on the credibility of witnesses. In addition to the trial court's opportunity to assess the credibility of witnesses, application of the clearly erroneous standard "reflects and preserves the proper relationship between trial courts and courts of appeal." United States v. Jabara, 644 F.2d 574, 577 (6th Cir.1981).
8
The district court found probable cause based on the following facts. The agents knew that the supplier was supposed to be in the front parking lot. Agents watching the front of the motel saw Goddard, the go-between in the transaction, run from the front parking lot, in the general area in which the Thunderbird was parked, to the rear lot to deliver the sample. The occupants of the Thunderbird then behaved in an extraordinary manner when the agents drove their car up behind them with its bright lights shining directly into the Thunderbird. No arrest or stop had been made at this point. After Goddard had been arrested, it was reasonable for the agents to assume that the supplier was still somewhere in the front parking lot because only a small sample had been delivered and the supplier had not yet been paid. When one of the arresting agents began to walk through the front lot towards the rear, the agents who had been watching the Thunderbird saw it follow the arresting agent towards the rear of the motel. The arrest was made once it became apparent that the Thunderbird was not exiting the parking lot. Under the facts of this case, the district court's finding of probable cause was not clearly erroneous.
9
The judgment of the district court is AFFIRMED.
*
The Honorable Howard T. Markey, Chief Judge, U.S. Court of Appeals for the Federal Circuit, sitting by designation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/418215/ | 707 F.2d 279
113 L.R.R.M. (BNA) 2575, 97 Lab.Cas. P 10,085
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.GENERAL INDICATOR CORPORATION, REDCO DIVISION, Respondent.
No. 82-1861.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 19, 1983.Decided May 10, 1983.
James Donathan, NLRB, Washington, D.C., for petitioner.
Stuart I. Cohen, Davis & Morgan, Peoria, Ill., for respondent.
Before CUMMINGS, Chief Judge, COFFEY, Circuit Judge, and ASPEN, District Judge.*
COFFEY, Circuit Judge.
1
This is a petition of the National Labor Relations Board for enforcement of its order directing the respondent, the Redco Division of the General Indicator Corporation, to reinstate a discharged employee. Enforcement denied.
I.
2
This dispute arises out of the Company's discharge of one of its employees, Bobby Rhines, for disrupting the productivity schedule of other employees during working hours. Rhines was hired by the Company in 1965 and rose to the level of "lead man"1 in a division of the Company's Wiring Department. In 1976 Rhines was removed from this position as a lead man after fellow employees complained that Rhines was arguing with them over work assignments. However, after this disciplinary transfer when Rhines was no longer in a supervisory capacity, he continued his pattern of disruption in the Wiring Department by continuing to argue with his fellow workers about work assignments and ordering other employees in the department to do certain jobs although he was without such authority. Furthermore, Rhines kept the Wiring Department in turmoil by repeatedly complaining about wanting to replace Ken Johnson, the union steward.2 As a result of Rhines' pattern of dissension and disruptive conduct, Rhines was warned to stop interfering with the work of the Company's other employees or his employment would be terminated. The events leading to Rhines' discharge culminated on April 3, 1980 when at about 11:15 a.m. Rhines approached two employees of General Indicator while these employees were working at their station in the Sheet Metal Department and informed them that he (Rhines) wished to talk with them about union steward Johnson and asked them to step away from their work station. Both employees refused, stating that they wished to continue at their work assignment, but Rhines insisted they stop work. The employees repeatedly told Rhines to leave, and after some five minutes they suggested that if Rhines wished to talk to them, they could meet during the lunch break. At this point, Rhines relented and the men returned to their work.
3
During the lunch break, one of the employees Rhines had previously interrupted at work approached Johnson and told him that Rhines had tried to enlist his support in replacing Johnson as shop steward and had interfered with his work schedule. Later, that same employee approached Stan Jolliff, the Company's foreman, and repeated his complaint that Rhines had kept him from accomplishing his assignment during working hours by talking to him (for five minutes) during working time. That afternoon, Jolliff and Johnson informed Dave Fulton, the Company's president, of Rhines' disruptive behavior that day and that prior to the incident in question Rhines had received a number of warnings regarding his inability to get along with other employees. Jolliff recommended to Fulton that Rhines be discharged as his erratic conduct was keeping the shop in constant turmoil. Fulton agreed with Jolliff's recommendation and had a letter drafted for Jolliff's signature authorizing Rhines' termination. On April 4, 1980 Jolliff informed Rhines that his services were no longer necessary and presented him with the following letter of termination:
4
"I am sure you are aware of the concern for the unsettling relations with other employees resulting from your actions on numerous occasions. Your supervisor and representatives of the Union have brought these matters to your attention in the form of warnings, without result.
5
Since the unsettling effect has recently become very serious, it is my responsibility to inform you that your employment is being discontinued effective immediately."
6
Some five months after his discharge Rhines filed an unfair labor practice charge alleging an unlawful discharge in violation of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. Thereafter, the Regional Director of the NLRB issued a complaint based on Rhines' charge that the Company had violated the National Labor Relations Act (specifically 29 U.S.C. Sec. 158) in discharging Rhines while he was engaged in protected activity. The General Counsel for the National Labor Relations Board also charged that the Company terminated Rhines to discourage other employees from engaging in concerted activities. The Company filed its answer denying it had violated the National Labor Relations Act, and a hearing was held before an Administrative Law Judge.
7
The Administrative Law Judge agreed with the NLRB and reasoned that Rhines was engaged in protected activity when he disrupted the productivity of his fellow workers because "[t]o seek changes, as here, in the union representation of employees in the bargaining unit is a right protected by the Act ...." The ALJ further concluded that the Company's justification for discharging Rhines, i.e. that he had a long history of creating dissension among the other employees, was nothing more than a "mere pretext to conceal the real discriminatory reason for discharging Rhines." The ALJ held that the real reason for discharging Rhines was the fact that Rhines opposed shop steward Johnson. The ALJ therefore found the Company in violation of the National Labor Relations Act in "discriminatorily discharging Rhines ... for engaging in union activities" and ordered the Company to reinstate Rhines with backpay to his former job or one substantially equivalent. A National Labor Relations Board panel affirmed the conclusions and findings of the Administrative Law Judge and adopted his order. The Company took exception to the Board's order and refused to comply with their directive. The National Labor Relations Board filed this petition for enforcement.
II.
8
Under 29 U.S.C. Sec. 158 it is an unfair labor practice for an employer to "interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 157 of this title;" section 157 in turn grants employees
9
"the right to self-organization, to form, join or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...."
10
However, it has long been held by the courts and by the NLRB that employees may not engage in concerted activities which might otherwise be protected "without regard to the employer's undisputed right to maintain discipline in its establishment." J.P. Stevens and Company v. NLRB, 547 F.2d 792, 794 (4th Cir.1976). See also Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S. Ct. 982, 89 L. Ed. 1372 (1945).
11
"The discharge of an employee for wrongful conduct is an inherent power of management and one that is protected by law.... So long as the action is not based upon opposition to union activities ... 'If an employee is both inefficient [insubordinate] and engaged in union activities, that is a coincidence that does not destroy the just cause for his discharge.' " (Brackets in original). (citations omitted).
12
Boaz Spinning Co. v. NLRB, 395 F.2d 512, 516 (5th Cir.1968). "The burden ... is on the Board to show affirmatively by substantial evidence that [an employee's] discharge was discriminatory and motivated by ... alleged union activities," before an employer can be found guilty of violating the National Labor Relations Act for discriminatorily discharging an employee based upon alleged union activities. Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423, 426-27 (7th Cir.1962).
13
"Where, as here, an employee's pro-union activity is asserted to have interfered with management's right to maintain order and respect ... the Board must engage in what we have described as a 'balancing process.' The employees' rights are to be weighed against the interests of management in the pursuit of its lawful objectives. This balancing process, resting initially with the Board, is not immune from judicial review."
14
NLRB v. Prescott Industrial Products Co., 500 F.2d 6, 10 (8th Cir.1974) (footnote omitted).
15
Before the Company can be found to have violated the National Labor Relations Act in discharging Rhines, the NLRB must establish that Rhines was discharged while engaging in protected conduct. It is clear from our review of the record that the NLRB has failed to establish that Rhines was engaged in protected activity or that the allegedly protected activity was a motivating factor in his discharge. In contrast to the NLRB's decision in the instant case, case law holds that an employee who disrupts other employees during working hours is not engaged in a protected activity even though he is discussing union business. See NLRB v. Prescott Industrial Products Co., 500 F.2d 6 (8th Cir.1974) (An employee's discharge was upheld where the employee disrupted the employer's lawful anti-union speech and where the employee became abusive and insubordinate when instructed by the employer to sit down); Caterpillar Tractor Co. v. NLRB, 230 F.2d 357 (7th Cir.1956) (The National Labor Relations Act does not protect activities "which inherently carry with them a tendency toward, or a likelihood of disturbing efficient operation of the employer's business"); and Stuart F. Cooper Co., 49 LRRM 1729 (1962) (The employer did not violate the Act by discharging pro union employees whose bickering and dissension interfered with production). See also Boaz Spinning Co. v. NLRB, 395 F.2d 512 (5th Cir.1968). We hold that General Indicator's substantial interest in maintaining productivity and a semblance of order in the work place greatly outweighs Rhines' unprotected interest in disrupting the Company's production schedule. Rhines had no right to interfere with the work schedule of his co-workers and should have waited fifteen minutes and then approached the employees during their break period. Had Rhines waited the fifteen minutes until the scheduled break period, he would not have come into conflict with the Company's interest in maintaining order and productivity and the instant dispute would have been avoided. See NLRB v. May Department Stores Co., 154 F.2d 533, 536 (8th Cir.1946); see also Peyton Packing Co., 49 N.L.R.B. 828 (1943). Therefore, after balancing Rhines' interest as an employee and his wrongful conduct against the Company's undisputed interests, we hold that an employee who attempts to engage other employees in discussions about the replacement of a union steward during working hours at their station and disrupts the production or work program of the other employees is not engaged in that type of union activity protected by the National Labor Relations Act. Thus, an employer is justified in discharging an employee who engages in this type of disruptive activity as the employer's interest in maintaining order and productivity in the work place outweighs that of the employee.
16
The Board argues in its brief that the Company violated the National Labor Relations Act by discharging Rhines for violating an alleged Company rule prohibiting employees from talking to one another and interrupting production because the Company had in the past failed to uniformly enforce this rule. However, the National Labor Relations Board's argument ignores the fact that Rhines was not discharged solely because he engaged in discussions with other employees, or even due to the content of the conversation he had with the other employees. Rather, Rhines was discharged because he had a history of disrupting the work schedule of co-employees, and even after he had been disciplined for this pattern of disruption and had received a "final warning," he continued to approach other employees and prevent them from completing their assigned tasks in a timely manner. It is also significant to note that the employees themselves repeatedly asked Rhines to leave their work area and to stop the interruption of their productivity.3 The NLRB thus ignores the overwhelming evidence that the Company authorities discharged Rhines for a continual pattern of disruptive and insubordinate behavior and activities as well as for interfering with productivity, and not because he solicited other employees for union related matters. We hold that when an employee leaves his work station and disrupts the work of other employees during their work time, it is well within the rights of an employer to terminate that disruptive employee regardless of whether or not the employer has a rule prohibiting "solicitation" at the time of the disruption as an employer has the inherent power to discharge employees for "wrongful conduct."
III.
17
Assuming only for the sake of argument that Rhines was engaged in protected activity when he interrupted the work of the other two employees to discuss replacing the union steward, we now address the question of whether there was substantial evidence in the record to support the National Labor Relations Board's finding that the Company's justification for discharging Rhines was a "pretext." During the hearing before the Administrative Law Judge, the General Counsel for the NLRB presented Rhines' testimony that the Company discharged him (Rhines) due to the content of his conversation with the other two shop employees. It was the NLRB's General Counsel's position that the only reason the Company discharged Rhines was because he wished to replace the current shop steward, as that steward was the nephew of one of the Company's foremen. The Company, on the other hand, presented evidence demonstrating that Rhines was a constant source of turmoil among the other employees and had a history of disruptive conduct throughout the entire tenure of his employment with the Company. Testimony revealed that even after his removal from "lead man" status Rhines continued to interfere with the production schedule of the other employees and in order to maintain industrial peace the Company was forced to reassign Rhines to work in another area of the plant.
18
After his reassignment Rhines continued to complain to other employees that he wanted to replace Johnson as union steward, a fact known throughout the plant. Moreover, in his new assignment Rhines refused to follow Johnson's "lead" on the assigned tasks as required by the Company's "lead man" policy, a policy developed to ensure that each assignment was wired correctly. After Johnson complained to foreman Jolliff, Jolliff warned Rhines that he was to take his directions from the "lead man," Johnson. However, less than two weeks thereafter Rhines again refused to accept a wiring assignment from Johnson and began swearing at Johnson when he (Johnson) directed him (Rhines) to resume his assigned task. This time Jolliff took both Johnson and Rhines to Eller, the production manager, to attempt to have Eller settle the dispute. After discussing the problem with the three men, Eller determined that Rhines was not wiring the assigned task according to Johnson's direction as was required by the Company's "lead man" policy. Jolliff at this time suggested firing Rhines but Eller refused and reassigned him to work on his own, independent and away from any other employees, with the warning that this was Rhines' last chance.
19
A short ten days thereafter, the incident which finally led to Rhines' discharge took place. As noted in part II, infra, Rhines left his own work station and approached two other employees and interrupted their work schedule. After being informed of Rhines' past and present disruptive behavior, Dave Fulton, the Company's president, agreed that Rhines should be discharged and had the termination letter drafted. Notwithstanding the fact that Rhines had a history of disruptive behavior during working hours and that the termination letter expressly referred to Rhines' "unsettling relations with the other employees" as the reason for his discharge, the ALJ rejected this overwhelming evidence and accepted Rhines' argument that he was discharged for engaging in protected activity.
20
In a recent Seventh Circuit decision, this court set forth the burden of proof in cases involving the alleged discriminatory discharge of an employee for engaging in purportedly protected activities. In NLRB v. Webb Ford, Inc., 689 F.2d 733, 739 (7th Cir.1982), the court stated:
21
"Under the proper test, the ALJ must determine first whether the General Counsel has established a prima facie case of discriminatory discharge. Then the employer must advance some legitimate non-discriminatory reason for its action in order to satisfy its burden of going forward. The General Counsel then has the obligation to prove by a preponderance of the evidence that those proffered reasons were not the company's true reasons for the discharge."
22
The testimony at the hearing clearly established that Rhines had a history of disrupting the work assignments of his co-employees and causing dissension and turmoil within the Company's plant. Furthermore, the Company bent over backwards to accommodate Rhines by giving him assignments where he would work separately and independently of the other employees and thus enable him to avoid possible conflicts. At the time Rhines was separated from the rest of the work force, he was warned that this was his last chance and that if he continued his pattern of disruption in the work place he would be fired. In warning Rhines and requiring him to work by himself the Company was attempting to make one final effort to balance Rhines' interest in keeping his job with the Company's interest in maintaining some semblance of industrial peace and tranquillity among the work force. When Rhines disregarded the Company's interests and approached the other employees during their work hours and disrupted their work activity, and taking into consideration Rhines' previous pattern of insubordinate behavior, the Company was clearly justified in discharging him.
23
The ALJ based his decision on the NLRB's argument that Rhines was discharged because of the content of his conversation with the other two company employees. This finding by the ALJ ignores the undisputed evidence that Rhines had actively opposed Johnson as union steward for a number of years and that his opposition to Johnson had been common knowledge throughout the plant. Because company officials were allegedly aware of Rhines' opposition to Johnson for some time, if the Company had wanted to discharge Rhines because he wished to replace Johnson, the Company could and would have acted at an earlier date. Moreover, Fulton testified at the hearing that contrary to the allegations of the NLRB, he was unaware of the content of the conversation between Rhines and his fellow employees concerning replacing Johnson as union steward, and further related that "we were only concerned with the fact that the employee was away from his work area contrary to instructions and was disrupting the efforts of others to perform their job.... There were no words mentioned about what Mr. Rhines' comments were." In light of the overwhelming evidence, we hold that Rhines was discharged because of his disruptive behavior and he was not engaged in protected activity, and therefore we hold that the National Labor Relations Board and the Administrative Law Judge erred in finding the Company guilty of committing an unfair labor practice in discharging Rhines. The facts more clearly demonstrate that the Company had bent over backwards and went beyond any legal obligation to protect Rhines' interest in his employment and accommodate his disruptive personality and thus "advanced [a] legitimate non-discriminatory reason" for Rhines' discharge that stands unrebutted in the record by the General Counsel for the NLRB. Enforcement of the National Labor Relations Board's order is DENIED.
*
The Honorable Marvin E. Aspen, District Judge for the Northern District of Illinois, is sitting by designation
1
According to company policy, an employee designated as "lead man" on a job is the employee who establishes the wiring pattern to be followed by his co-employees on that job
2
Rhines was concerned about the fact that union steward Johnson was the nephew of foreman Jolliff; however, there was no evidence presented at the hearing to show whether the Company had any interest in having Johnson keep his position as union steward
3
The record does not disclose whether these employees were paid on a piece-work basis | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/418234/ | 707 F.2d 368
31 Fair Empl. Prac. Cas. (BNA) 1554,31 Fair Empl. Prac. Cas. (BNA) 972,31 Empl. Prac. Dec. P 33,537Vincent J. LIMONGELLI, Plaintiff-Appellant/Cross-Appellee,v.POSTMASTER GENERAL OF the UNITED STATES, et al.,Defendants-Appellees/Cross-Appellant.
Nos. 82-5015, 82-5154.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Feb. 9, 1983.Decided April 25, 1983.As Amended May 24, 1983.
Larry M. Lipke, Santa Ana, Cal., for plaintiff-appellant/cross-appellee.
Peter R. Osinoff, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees/cross-appellant.
Appeal from the United States District Court for the Central District of California.
Before NELSON and NORRIS, Circuit Judges, and SOLOMON,* District Judge.
PER CURIAM:
1
Vincent J. Limongelli filed an action against the United States of America, the Postmaster General and the Postal Service (appellees) for various acts of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 633a (1976 & Supp. V 1981) and for nepotism under 5 U.S.C. Sec. 3110 (1976 & Supp. V 1981), resulting in his failure to be promoted. Before trial, the court dismissed Limongelli's nepotism claim on the ground that there is no private cause of action under the statute. After trial, the court found against Limongelli on all but one of his claims of discrimination.
2
Limongelli appeals.
3
The appellees cross appeal on the one claim on which the district court found in favor of Limongelli. It related to the installation of a fuel measuring device on a delivery jeep which Limongelli operated and which Limongelli asserts was installed in retaliation for his complaints. Appellees also seek to reverse the court's award of costs to Limongelli.
Facts
4
Limongelli was born in 1926. He became a letter carrier in 1944 and has worked at the Costa Mesa, California Post Office since 1965.
5
Lyle Ver Planck was the Postmaster in Costa Mesa. In June, 1976, while Ver Planck was temporarily assigned out of the area, a supervisory position was filled. Limongelli and five others had applied for that position. A three member advisory panel held a brief interview with each of the applicants. Limongelli was asked about his age and the number of years before retirement. At the trial, however, each panel member testified that age had no bearing on his recommendation. The panel and the acting Postmaster unanimously recommended Ver Planck's nephew, Nathan Ver Planck, who was 37 years old. Limongelli, then 49, filed charges with the Equal Employment Opportunity Commission (EEOC). He charged that he was not promoted because of age discrimination and nepotism.
6
In June, 1978, Limongelli applied for a second supervisory position. In late 1976, a course in postal supervision had become an eligibility requirement for promotion to a supervisory position. Limongelli was found ineligible because he failed to take that course. Limongelli again filed an EEOC charge for age discrimination and retaliation. He asserted that he had been discriminated against because he filed the earlier charges.
7
In November, 1978, Limongelli applied for a vacant supervisory position. Completion of a program called Profile Assessment System for Supervisors was a requirement for this position. Limongelli did not complete the program and he was not promoted. He then filed a third EEOC charge.
Limongelli's Appeal
A. Private Cause of Action for Nepotism
8
Although no private cause of action is expressly created in 5 U.S.C. Sec. 3110, appellant contends that one should be implied. The Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975) announced general rules for deciding if a private right of action is implicit in a statute. The Court listed four factors to be considered:
9
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted,"--that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
10
Id. at 78, 95 S.Ct. at 2087 (citations omitted). The ultimate issue is whether Congress intended to create a private cause of action, and the factors in Cort are the criteria to be used to discern this intent. California v. Sierra Club, 451 U.S. 287, 293, 101 S. Ct. 1775, 1778, 68 L. Ed. 2d 101 (1981).
11
Limongelli contends that he satisfied the first factor in Cort because he is a member of the class for whose special benefit section 3110 was enacted. We disagree. Whether a statute was enacted for the benefit of a special class is determined by the language of the statute. Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S. Ct. 1946, 1953, 60 L. Ed. 2d 560 (1979). The issue in Cannon was whether section 901(a) of Title IX of the Education Amendments of 1972 created a private cause of action. The statute states that "No person ... shall, on the basis of sex, be excluded from participation in ... any education program or activity receiving Federal financial assistance ...." The Court found that the statute's "unmistakable focus on the benefited class," 441 U.S. at 691, 99 S.Ct. at 1955, satisfied the first Cort factor.
12
In other cases, the Court found implied causes of action when the statutory language focused on the class to be benefited. See, e.g., Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969) (42 U.S.C. Sec. 1982: "All citizens of the United States shall have the same right ... as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."); Allen v. State Board of Elections, 393 U.S. 544, 557, 89 S. Ct. 817, 827, 22 L. Ed. 2d 1 (1969) (section 5 of the Voting Rights Act of 1965: "no person shall be denied the right to vote for failure to comply with [unapproved state laws]").
13
By contrast, the language of section 3110 focuses not on the benefited class, but rather on those who are prohibited from specified acts. Section 3110(b) states that "A public official may not appoint, employ, promote, advance, or advocate for ... a relative ...." This language is closer to the language in statutes where the Supreme Court declined to imply a private cause of action. See, e.g., California v. Sierra Club, 451 U.S. 287, 101 S. Ct. 1775, 68 L. Ed. 2d 101 (1981) (section 10 of the Rivers and Harbors Act of 1899: "The creation of any obstruction ... to the navigable capacity of any of the waters of the United States is prohibited ....").
14
We hold that Limongelli failed to satisfy the first factor in Cort, and the statute does not create a federal right in his favor. He is not a member of a class for whose special benefit section 3110 was enacted.
15
The legislative history of section 3110 does not reveal any congressional intent either to grant or deny a private cause of action. The Act was passed as part of the Postal Revenue and Federal Salary Act of 1967. Rep. Smith of Iowa, the sponsor of the anti-nepotism section of the Act, stated that nepotism in hiring is bad for morale and against the interest of the government. 113 Cong.Rec. 28,659 (1967). The Senate and Conference Reports state only that the section's purpose is to prohibit officials from hiring their relatives. S.Rep. No. 801, 90th Cong., 1st Sess., reprinted in 1967 U.S.Code Cong. & Ad.News 2258, 2284-85; H.R.Conf.Rep. No. 1013, 90th Cong., 1st Sess., reprinted in 1967 U.S.Code Cong. & Ad.News 2301, 2312-13. We find no evidence in the legislative history of a congressional intent to create a private cause of action.
16
Where neither the language of the act nor its legislative history shows a congressional intent to create a private cause of action under section 3110, there is no reason to consider the final two Cort factors. California v. Sierra Club, supra, 451 U.S. at 297-98, 101 S. Ct. at 1780-1781; Osborn v. American Ass'n of Retired Persons, 660 F.2d 740, 745 (9th Cir.1981). We hold there is no private cause of action under section 3110.
17
In addition, there is another factor which supports our decision. Title 5 provides an administrative remedy for a violation of section 3110. When Congress provides a particular remedy for a statutory violation, the courts must be careful of reading other remedies into the statute. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20, 100 S. Ct. 242, 246-247, 62 L. Ed. 2d 146 (1979).
18
In 1978, when Congress passed the Civil Service Reform Act, it reaffirmed section 3110's prohibition of nepotism. 5 U.S.C. Sec. 2302(b)(7) (Supp. V 1981). An employee who alleges a prohibited personnel practice must petition the Office of Special Counsel for an investigation and corrective action. 5 U.S.C. Sec. 1206. He may not assert a private cause of action under 5 U.S.C. Sec. 3110.
B. The 1976 Non-Promotion
19
Limongelli next contends that the district court erred in finding that the defendants articulated a legitimate, non-discriminatory reason for not promoting him in 1976.
20
Limongelli sued under section 15 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 633a. Allocation of the burdens of proof and presentation are the same in age discrimination cases as in Title VII discrimination cases. Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 (9th Cir.1981). A plaintiff must establish a prima facie case; a defendant may then rebut the inference of discrimination with a legitimate, non-discriminatory reason for the action; a plaintiff then has the opportunity to show that the stated reason was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Sutton v. Atlantic Richfield Co., supra.
21
Here, the appellees concede that Limongelli has established a prima facie case of age discrimination, but they assert there was ample evidence to support the district court's finding that appellees rebutted the inference of discrimination with a legitimate, non-discriminatory reason, namely, that the person selected was better qualified than Limongelli. See Jefferies v. Harris County Community Action Association, 693 F.2d 589, 590-91 (5th Cir.1982).
22
Ver Planck's nephew had an A.A. degree in business management; productivity increased when he was acting supervisor; and he properly completed his paperwork. Limongelli did not always complete his paperwork on time; it was often illegible or inaccurate; and when he was acting supervisor, productivity decreased.
23
Limongelli neither rebutted this evidence nor showed that it was a pretext. The district court properly found that there was no discrimination because of age.
C. The 1978 Non-Promotions
24
Finally, Limongelli contends that the district court erred in finding that Limongelli failed to establish a prima facie case of discrimination for the two non-promotions in 1978.
25
There is no merit in this contention. Limongelli was not qualified for either job because he had not completed the required programs. See Lynn v. Regents of the University of California, 656 F.2d 1337, 1344 (9th Cir.1981) (objective job qualifications are best considered as part of plaintiff's prima facie case), cert. denied, --- U.S. ----, 103 S. Ct. 53, 74 L. Ed. 2d 59 (1982).
Defendants' Cross-Appeal
26
As part of a nationwide program to conserve fuel, four devices that measure fuel consumption were assigned to the station where Limongelli worked. They were installed in January, 1981 in cars used on delivery routes that took more than eight hours to complete. Limongelli's route was one of them. Four weeks after information was first gathered from the device, the car was switched to another route. The same procedure was followed for the other cars containing these devices. Limongelli was not subjected to or threatened with adverse employment action because of the information gathered from the device.
27
Limongelli neither filed an EEOC charge over the incident nor did he allege it in his judicial complaint. He raised it for the first time at the trial. Nevertheless, the court found the installation discriminatory.
28
The government contends that the finding was erroneous because: (1) the court lacked authority to hear the issue and (2) there was no discrimination. We agree. A federal employee has two options when he presents an age discrimination claim under the ADEA. First, he may give the EEOC thirty days' notice of his intent to sue and then file an action in federal court; second, he may file charges with the EEOC, await its final determination, and file an action in federal court if he is dissatisfied. 29 U.S.C. Sec. 633a(c), (d); Purtill v. Harris, 658 F.2d 134, 138 (3d Cir.1981).
29
Limongelli failed to follow either course. He contends, however, that this later act should be incorporated into his earlier EEOC charges. We have stated:
30
When an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC.
31
Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973).
32
Here, the device was not installed during the pendency of his charges before the EEOC, but only after a final decision. The charge was not like or reasonably related to the allegations in the EEOC charges. Limongelli complained that he was not promoted. He did not allege a pattern of discrimination that might have included this charge. See Ramirez v. National Distillers and Chemical Corp., 586 F.2d 1315, 1320 (9th Cir.1978).
33
This incident was not encompassed in his earlier EEOC charge. He did not exhaust his administrative remedies under ADEA and therefore cannot look to the courts for relief. Purtill v. Harris, supra; Bunch v. United States, 548 F.2d 336, 340 (9th Cir.1977).
34
We have also considered the merits of the claim and find that there was no evidence to support the court's finding that the installation of the fuel measuring device was discriminatory.
35
Except on this one minor issue, which we reverse, Limongelli received none of the relief he requested. He was not the prevailing party in the district court. 28 U.S.C. Sec. 2412(a) (Supp. V 1981). The district court's award of costs is therefore reversed.
36
The judgment of the district court is affirmed in part, reversed in part and remanded for the entry of a judgment consistent with this opinion.
*
The Honorable Gus J. Solomon, United States District Judge for the District of Oregon, sitting by designation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/418236/ | 707 F.2d 374
UNITED STATES of America, Plaintiff-Appellee,v.Robbin Lee COLEMAN, Defendant-Appellant.
No. 81-1644.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 4, 1982.Decided May 16, 1983.
Thomas M. Coffin, Asst. U.S. Atty., Eugene, Or., for plaintiff-appellee.
James S. Coon, Portland, Or., for defendant-appellant.
Appeal from the United States District Court for the District of Oregon.
Before WALLACE, FARRIS and POOLE, Circuit Judges.
WALLACE, Circuit Judge:
1
Coleman appeals his conviction on nine counts arising out of a conspiracy to murder Jeffrey Payne and recover the proceeds from fraudulently obtained life insurance policies on Payne's life. One count charged a conspiracy to commit mail fraud, and four counts involved mail fraud under 18 U.S.C. Sec. 1341. The remaining counts involved the National Firearms Act, 26 U.S.C. Secs. 4181, 4182, 5801-5872: two counts of making a destructive device without complying with the statutory registration requirements under 26 U.S.C. Secs. 5822, 5861(f), and 5871; and two counts of transferring a destructive device without complying with statutory registration requirements under 26 U.S.C. Secs. 5812, 5861(e), and 5871. On appeal, Coleman claims that certain acts and omissions by his trial lawyer amounted to ineffective assistance of counsel, and that the separate sentences for making and transferring a destructive device constituted an illegal multiple punishment under the National Firearms Act. We affirm.
2
* This case involves a conspiracy between Coleman and Janice Payne to insure the life of Janice's husband, Jeffrey, naming Janice as the beneficiary, and then to murder him and collect the proceeds of the policies. Between October and December 1978, Janice Payne obtained various life insurance policies on her husband without his knowledge. Coleman forged Jeffrey's signature on the applications. Coleman agreed to share part of the insurance proceeds with Nuess and Zastera if they would murder Jeffrey.
3
Coleman made two Molotov cocktail firebombs on March 4, 1979. On March 18, he gave the bombs to Nuess and Zastera and instructed them to kill Payne and his partner, Harry Mallon, while they were working at a mine. Coleman also armed Nuess and Zastera with a rifle and a pistol and told them to shoot Payne and Mallon if the bombs missed.
4
Later that day, Zastera threw the firebombs at Payne and Mallon as they emerged from the mine. Both were injured but managed to escape into the forest as Zastera unsuccessfully emptied his revolver at them.
5
In return for immunity, Nuess agreed to cooperate and was outfitted with a hidden recorder. In recorded conversations with Nuess, Coleman admitted planning the attempted murders, admitted signing Payne's name on one of the insurance policies, and stated that he also intended to kill Janice Payne to collect her insurance had the attack on Jeffrey been successful.
II
6
Coleman's first argument is that the registration requirements of the National Firearms Act operated in this case to deny him his fifth amendment right against self-incrimination. Such a fifth amendment objection must be timely raised during trial or it may not be asserted on appeal. United States v. Williams, 427 F.2d 1031, 1033-34 (9th Cir.) (fifth amendment objection to the National Firearms Act must be raised during trial), cert. denied, 400 U.S. 909, 91 S. Ct. 153, 27 L. Ed. 2d 148 (1970).
7
Coleman concedes that the fifth amendment objection was not raised during trial, but seeks to assert the issue on appeal by claiming that he was denied effective assistance of counsel. Under Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 793 (1979), Coleman must show that his counsel's error reflected a failure to exercise the skill, judgment, or diligence of a reasonably competent defense attorney and that any specific acts or omissions were prejudicial to him. Id. at 1330-31. Coleman argues that an assertion of his fifth amendment privilege would have been a complete defense to the National Firearms Act charges. Thus, he contends, a reasonably competent attorney would have made the objection and its omission was clearly prejudicial to his case. We turn first to the merits of Coleman's fifth amendment claim.
8
His argument is an unusual one. He contends that compliance with the registration requirements of the National Firearms Act in connection with the making and transferring of the Molotov cocktail would have incriminated him for various acts of mail fraud that occurred after the making of the bomb. To follow his reasoning, it is first necessary to review the history of the National Firearms Act and the resultant fifth amendment difficulties.
9
In Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968), the Supreme Court struck down a provision of an earlier version of the National Firearms Act as violative of the fifth amendment. Essentially, the old law required registration by a person who possessed a firearm that was made or acquired in violation of the Act. The Court held that the fifth amendment prohibited Congress from requiring an individual to provide information that amounts to an admission of guilt to a state or federal crime. Id. at 96-100, 88 S.Ct. at 729-732.
10
Subsequent to Haynes, Congress amended the statute to state that no information or evidence provided in compliance with the registration or transfer provisions of the Act could be used, directly or indirectly, as evidence against the registrant or applicant "in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence." 26 U.S.C. Sec. 5848(a). Because the registration information could not be used to convict an applicant of any federal crime committed prior to or concurrent with his filing, and because the information contained in the registration would not be disclosed to state law enforcement agencies, the revised statute was upheld by the Supreme Court in United States v. Freed, 401 U.S. 601, 606, 91 S. Ct. 1112, 1116, 28 L. Ed. 2d 356 (1971).
11
Coleman does not contend that the registration provisions are unconstitutional because they require him to incriminate himself on the charges relating to the National Firearms Act. Coleman also acknowledges that the fifth amendment cannot be used to shield him from liability for future crimes. Instead, Coleman contends that the registration requirements are unconstitutional as applied to him because they forced him to incriminate himself as to future acts for which his past acts make him criminally liable.
12
Essentially, Coleman's argument is as follows. He entered into the mail fraud conspiracy prior to the March 4 making and the March 18 transferring of the Molotov cocktails. However, acts committed by other members of the conspiracy, constituting violations of the mail fraud statute, occurred after the March 4 and March 18 dates.1 As a conspirator, Coleman would be criminally liable for these subsequent acts by co-conspirators. Thus, although registering the bomb would not have subjected him to liability for the acts prior to registration, Coleman would be liable as a member of a conspiracy for subsequent mail fraud acts of co-conspirators. In essence, Coleman states that he would be forced to give the government evidence (making and transfer of the bombs) that could be used to prosecute him on the later occurring mail fraud acts. Thus, he contends that Congress's revision of the Act does not obviate his fifth amendment claim. He contends he was forced to incriminate himself for future crimes for which he is liable based on his past acts. Moreover, he claims that his case does not involve a "career of crime about to be launched," see id. at 606-07, 91 S.Ct. at 1116-1117, but liability based on acts already launched.
13
We have great difficulty with his reasoning. It is not clear that the government would have been able to use the registration information to convict Coleman of the acts committed by others after the making of the bombs. If the conspiracy was formed prior to the registration, the government would be precluded from using the registration information to convict him of the conspiracy.
14
But more importantly, Coleman's argument appears to conflict with the Supreme Court's teaching in Freed concerning the scope of the fifth amendment. See id. The fifth amendment is not a partner in prospective criminal acts. To adopt Coleman's interpretation of the fifth amendment would mean that any deceptive practices committed as part of a larger criminal scheme would be subject to the self-incrimination clause of the fifth amendment. For example, as the government argues, a person applying for a bank loan for the purpose of buying heroin could claim that a law requiring him to disclose his purpose for wanting the loan would violate the fifth amendment. If he complied with the law and stated his reasons for the loan, under Coleman's theory this evidence could not be used to convict him of subsequent crimes, including ones for which he is liable as a member of a conspiracy. No precedent has been cited to us for such an interpretation of the fifth amendment.
15
Thus, we cannot say that a reasonably competent attorney would have made the argument advanced here by Coleman, or that the failure to make the argument prejudiced him in any way. Therefore, Coleman was not denied effective assistance of counsel as to the self-incrimination claim.
16
Coleman continues his lack of effective assistance of counsel argument by contending that his counsel improperly allowed the complete playing of a tape in which Coleman admits his role in the crime. He also points to instances in which counsel failed to object to hearsay testimony and failed to object to nonresponsive, rambling answers.
17
In testing whether Coleman received effective assistance, we apply the rule that attorneys are allowed wide discretion in the use of trial tactics. United States v. Larios, 640 F.2d 938, 941 (9th Cir.1981). In addition, in cases with overwhelming evidence of guilt, it is especially difficult to show prejudice from a claimed error on the part of trial counsel. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S. Ct. 2018, 68 L. Ed. 2d 325 (1981). Under these standards, Coleman does not sustain his burden of showing that his sixth amendment rights were violated.
18
The tape in question contained admissible but very damaging statements made by Coleman as to his role in the crime. Other damaging statements contained in the tape, such as evidence of Coleman's criminal activities outside of this case, would have been inadmissible. The government offered an edited version of the tape. Coleman's counsel insisted that the entire three-hour tape should be played. Although it is unclear from the record exactly why he chose to do this, we may surmise that he thought the length of the tape would soften the critical admissions contained therein. The choice was one involving trial strategy and tactics. Based upon this record and given the overwhelming evidence against Coleman, it is difficult to find a sixth amendment violation by his attorney for strategy he employed to lessen the effect of damaging evidence. Furthermore, even if we were to consider counsel's conduct to be inadequate, Coleman cannot establish that he was prejudiced. Coleman admits in the tape that he was directly involved in the attempted murder, and two immunized witnesses testified to the same effect. The extra damaging evidence contained in the tape did nothing more than reinforce what had already been effectively proven.
19
The only other objection Coleman makes which has any merit is that his counsel failed to object to hearsay testimony of Nuess. However, the testimony was of relatively minimal significance in the totality of the trial.
20
Coleman fails to meet either prong of the Cooper v. Fitzharris test. We agree with Coleman that, in considering the effectiveness of trial counsel, we must not look only at each error separately, but must evaluate the cumulative impact of all the trial errors. Cooper v. Fitzharris, supra, 586 F.2d at 1333. Nevertheless, we cannot say that the cumulative impact of trial counsel's errors was sufficient to amount to ineffective assistance of counsel. Nor can we conclude that the requisite prejudice has been demonstrated.
III
21
Coleman contends that the district court erred in sentencing him consecutively for making and transferring the same destructive device under 26 U.S.C. Sec. 5861(e) and (f). He claims that the making and transfer of the Molotov cocktail were part of the same act or transaction, and that there is no evidence that Congress, in enacting these two subsections, intended to create multiple punishments for a single transaction. Although both the Fourth and Eighth Circuits have upheld multiple sentencing under subsections (e) and (f), see United States v. Kiliyan, 504 F.2d 1153 (8th Cir.1974), cert. denied, 420 U.S. 949, 95 S. Ct. 1333, 43 L. Ed. 2d 428 (1975) (Kiliyan ); United States v. Kaplan, 588 F.2d 71 (4th Cir.1978), modified on other grounds, United States v. Seidel, 620 F.2d 1006 (4th Cir.1980) (Kaplan ), we have never decided the issue in this circuit.
22
We first addressed the issue of multiple sentencing for violations of different provisions of the National Firearms Act in United States v. Clements, 471 F.2d 1253 (9th Cir.1972) (Clements ). There we stated that:
23
Unless we can find from the face of the Act or from its legislative history a clear indication that Congress intended to authorize multiple punishments for a single transaction, we are obliged to construe the Act against the harsher penalties that result from cumulative punishments.
24
Id. at 1254 (emphasis added). In that case, the defendant had been convicted of subsections (c), (d), and (f) of section 5861, which prohibit the possession of a firearm without paying the tax, possession of an unregistered firearm, and making of a firearm without paying the tax. We held that the defendant had engaged in a single transaction because "possession is always incidental to making by a person who is the maker." Id. It is impossible to make a gun and not possess it. Thus, by engaging in a single act, the defendant violated more than one provision of the statute. We concluded that without evidence of congressional intent to impose multiple punishments, such a single act was subject to the ten-year sentence limitation for a violation of the National Firearms Act as set out in 26 U.S.C. Sec. 5871.2
25
We have since followed Clements several times and have refused to uphold multiple punishments based on a single transaction which violated more than one provision of section 5861. See United States v. Edick, 603 F.2d 772, 774 (9th Cir.1979) (violations of (d) and (i), the possession of an unregistered gun and possession of the same gun not identified by a serial number); United States v. Rone, 598 F.2d 564, 572 (9th Cir.1979) (same), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980); United States v. Kalama, 549 F.2d 594, 597 (9th Cir.1976) (violation of (d) and (f), the possession and making provisions of the Act), cert. denied, 429 U.S. 1110, 97 S. Ct. 1147, 51 L. Ed. 2d 564 (1977); see also Brown v. United States, 623 F.2d 54, 57-59 (9th Cir.1980) (violations of the Gun Control Act). The Clements rule has also been followed in other circuits. Rollins v. United States, 543 F.2d 574, 575 (5th Cir.1976); United States v. Ackerson, 502 F.2d 300, 305 (8th Cir.1974), vacated on other grounds, 419 U.S. 1099, 95 S. Ct. 769, 42 L. Ed. 2d 796 (1975); United States v. Tankersley, 492 F.2d 962, 969 (7th Cir.1974).
26
We have recently refined the Clements rule in Edick v. United States, supra, 603 F.2d at 773-75. There, we considered whether Clements prohibited consecutive sentences per se, or only those sentences that exceed the statutory ten-year maximum for each violation of the Act. Edick had received sentences of three and five years, to run consecutively, for violating subsections (d) and (i) of section 5861. Id. at 773. We held that Clements and its progeny "forbid[ ] the imposition of consecutive sentences for different counts arising from a single transaction violating different provisions of 26 U.S.C. Sec. 5861, regardless of whether the aggregate of the sentences exceeds the statutory maximum." Id. at 774.3
27
Coleman argues that the imposition of consecutive ten-year sentences for violating subsections (e) and (f) of section 5861 contradicts both the general rule of Clements and the more specific refinement of that rule under Edick. The Clements rule applies, however, only when the "violations arose from one act." United States v. Rone, supra, 598 F.2d at 572; Edick, supra, 603 F.2d at 774. Thus, under either Clements or Edick, the question before us is whether making and transferring constitute a single act or transaction.
28
In Kiliyan, supra, the Eighth Circuit decided that making and transferring were two separate acts, and therefore consecutive sentencing was permissible. The court distinguished Clements, pointing out that possession was always incidental to making by the person who was the maker, and therefore the two offenses merged. Absent congressional intent, such a merger precluded multiple sentencing. The court went on to state: "Here, however, unlawful making and unlawful transfer are separate, non-merged offenses; transfer is not 'always incidental to making by the person who is the maker.' " 504 F.2d at 1155 (emphasis in original).
29
In Kaplan, supra, the Fourth Circuit arrived at the same conclusion. Again, the court approved of our holding in Clements; indeed, the Fourth Circuit struck down consecutive sentences based on violation of the making and possession provisions because the sentences exceeded the ten-year limit for a single violation. 588 F.2d at 74-75. However, the court did not apply the Clements doctrine to the making and transferring provisions: "The offenses of making and transferring an illegal firearm are separate and independent crimes, not incidental to one another, and permit separate sentences." Id. at 75.
30
As we have stated before, "[w]e think it prudential 'to maintain uniformity in the law among the circuits, wherever reasoned analysis will allow.' " Pinetree Transportation Co. v. NLRB, 686 F.2d 740, 744 (9th Cir.1982), quoting Aldens, Inc. v. Miller, 610 F.2d 538, 541 (8th Cir.1979), cert. denied, 446 U.S. 919, 100 S. Ct. 1853, 64 L. Ed. 2d 272 (1980). Here, we agree with the reasoning of the other circuits. The two acts of making and transferring are clearly distinguishable and neither is incidental to the other. One can make a firearm without transferring it, or transfer the device without making it. The separate dangers involved are well illustrated by this case. The firebombs were made on March 4, but were not transferred until March 18. There was a possibility that the project would be abandoned within this two week period, especially since Coleman initially had difficulty securing the cooperation of Nuess to carry out his plan. When Coleman was finally successful, his transfer of the device substantially heightened the danger to the victims. Each act alone posed significant danger to the victims, but when the two were combined, the danger was greatly increased. This is not true of the cases like Clements in which a single act makes one liable under various provisions of the National Firearms Act.
31
AFFIRMED.
1
Coleman points out that Janice Payne mailed one of the premiums on March 5. Other illegal acts were also committed by Nuess and Zastera after the transfer on the 18th, although it is not clear that any of them would amount to a violation of federal law
2
26 U.S.C. Sec. 5871 states that: "Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both, and shall become eligible for parole as the Board of Parole shall determine."
3
This refinement of Clements has been less well received by the other circuits. At least two courts have decided that consecutive sentencing based on a single act is permissible as long as the total sentence comes to less than ten years. See United States v. Kaplan, 588 F.2d 71, 74-75 & n. 3 (4th Cir.1978), modified on other grounds, United States v. Seidel, 620 F.2d 1006 (4th Cir.1980); Rollins v. United States, 543 F.2d 574, 575 (5th Cir.1976) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/418238/ | 707 F.2d 381
13 Fed. R. Serv. 741
UNITED STATES of America, Plaintiff-Appellee,v.Timothy McKINNEY, Defendant-Appellant.
No. 81-1636.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 16, 1982.Decided May 23, 1983.
Phillip Cronin, Asst. U.S. Atty., Fresno, Cal., for defendant-appellant.
Harry E. Hull, Jr., McDonough, Holland & Allen, Sacramento, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before TRASK and POOLE, Circuit Judges, and BELLONI,* District Judge.
TRASK, Circuit Judge:
1
Appellant Timothy McKinney appeals his jury trial conviction for armed bank robbery in violation of 18 U.S.C. Secs. 2113(a) and (d).
2
In June 1981, three armed men robbed the Sequoia Savings and Loan in Fresno, California. Indictments were returned against Timothy McKinney, Larry Simmons and Joe Jennings. Jennings pled guilty to the bank robbery charge. McKinney was convicted in a jury trial on September 17, 1981. On November 12, 1981, Simmons was convicted in a jury trial.
3
* At trial, FBI Agent Hobart Johnson was a witness for the government. His testimony concerned conversations he had with Evonne Walker several days after the robbery. Evonne Walker was Larry Simmons' girlfriend. Agent Johnson, relying on his report of his conversation with Walker testified as follows:
4
Q. What did she say in regard to seeing McKinney on the 11th of June?
5
A. When she saw him, he had on a dark blue jogging suit.
6
Q. What time did she see him?
7
A. At about 11:30 that morning.
8
Q. Where did she see him?
9
A. With Larry and Joe at her apartment.
10
Q. And what did she tell you about the circumstances under which she saw Tim McKinney, Larry Simmons, and Joe Jennings at her apartment at 11:30?
11
A. That when they came in, Larry told her they robbed a bank.
12
Q. And what were the words that she said he used?
13
A. That Larry used?
14
Q. Yes.
15
A. That they had just robbed a bank. (Emphasis added).
16
Evonne Walker had testified earlier that she had no recollection of the statement Simmons allegedly made to her or of her conversation with Agent Johnson. Simmons did not testify at McKinney's trial. The above quoted testimony came in over the hearsay objections of McKinney's attorney.
17
We find that admission of Agent Johnson's testimony violated McKinney's sixth amendment right "to be confronted with the witnesses against him." The sixth amendment issue was not raised in the district court and was neither briefed nor argued in this court. "In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." Silber v. United States, 370 U.S. 717, 718, 82 S. Ct. 1287, 1288, 8 L. Ed. 2d 798 (1962) quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936); United States v. Jeffery, 473 F.2d 268, 270-71 (9th Cir.), cert. denied, 414 U.S. 818, 94 S. Ct. 42, 38 L. Ed. 2d 5 (1973); Rule 52(b) Fed.R.Crim.P. This case presents exceptional circumstances.
II
18
The Confrontation Clause is not an absolute impediment to the introduction of extra judicial statements. If the statements are necessary and reliable they may be introduced at trial. Ohio v. Roberts, 448 U.S. 56, 65, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597 (1980); United States v. Fleishman, 684 F.2d 1329, 1330-31 (9th Cir.1982). The necessity requirement is satisfied by showing the declarant is unavailable. On the record before us we can not determine if Simmons was available to testify at McKinney's trial.1 We can determine the reliability of Agent Johnson's testimony and find it to be unreliable for Confrontation Clause purposes.
19
The testimony of Agent Johnson was double hearsay--McKinney to Walker and Walker to Johnson.2 In Ohio v. Roberts the Supreme Court stated that, for Confrontation Clause purposes, "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception."3 448 U.S. at 66, 100 S. Ct. at 2539. This court, however, rejected this notion, at least for the coconspirator exception4 in United States v. Perez, 658 F.2d 654, 660 n. 5 (9th Cir.1981). We stated:
20
Although the hearsay rules and the confrontation clause promote similar values, admissibility under a hearsay exception does not a fortiori dissolve the court's obligation to review the record for constitutional infirmity. This principle has particular force when the admission of evidence is sought under the coconspirator exception: Admission under the coconspirator exception does not automatically guarantee compliance with the confrontation clause. Id. at 660. (citations omitted.)In this circuit, therefore, if the hearsay falls into an exception, it may be reliable for confrontation clause purposes.5 Conversely, if the hearsay does not fall into an exception it is conclusively unreliable.6 Our first inquiry is whether the two levels of hearsay in Agent Johnson's testimony fall within hearsay exceptions.
III
21
Agent Johnson testified that Larry Simmons told Evonne Walker that they (Simmons, McKinney and Jennings) had just robbed a bank. The government contends that McKinney's silence in the face of Simmons' statement constituted an adoptive admission pursuant to Federal Rule of Evidence 801(d)(2)(B)7 and, therefore, was not hearsay.
22
In United States v. Sears, 663 F.2d 896 (9th Cir.1981), cert. denied, 455 U.S. 1027, 102 S. Ct. 1731, 72 L. Ed. 2d 148 (1982), we reviewed the foundation required prior to admitting evidence as an adoptive admission. We said:
23
Before admitting a statement as an admission by acquiescence, the District Court must determine, as a preliminary question, whether under the circumstances an innocent defendant would normally be induced to respond. The District Court should not submit the evidence of an admission by silence to the jury unless it first finds that sufficient foundational facts have been introduced for the jury reasonably to conclude that the defendant did actually hear, understand and accede to the statement. 663 F.2d at 904.
24
We find that the foundation in this case was inadequate and, therefore, the district court erred in admitting the statement.8
25
Walker testified that she had no recollection of the statement Simmons supposedly made to her in McKinney's presence. Agent Johnson, relying on the report of his conversation with Walker, gave the testimony set forth earlier in this opinion. His testimony does not provide an adequate foundation to introduce the statement as an adoptive admission. From this testimony it is impossible to determine where McKinney was when Simmons made the statement. We can not determine if McKinney heard and understood the statement or if the circumstances were such that one could expect him to respond to the statement.
IV
26
Having determined that Agent Johnson's testimony violated McKinney's right to confront witnesses against him, we must now determine if that error requires reversal of the district court verdict. Violations of the confrontation clause require reversal unless they are harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982).
27
The evidence linking McKinney to the robbery is not overwhelming. The government presented three witnesses who were employees of the savings and loan when it was robbed. These three witnesses identified McKinney in very general terms based on his height and build.9 The government also introduced several items seized at McKinney's apartment including a blue knit cap with stockings inside, a green plaid shirt and a 38 caliber revolver. The seized clothing was similar to clothing worn by one of the robbers but not the robber identified as McKinney. The revolver was similar to the one carried by the tallest robber (supposedly McKinney). There was also tenuous evidence of McKinney and Simmons being together at another savings and loan a week prior to the robbery and acting suspicious.
28
Agent Johnson's erroneously admitted statement was tantamount to a confession by McKinney. This testimony was highly prejudicial. In light of the relatively weak evidence against McKinney, we can not say that the jury was not influenced by Agent Johnson's testimony. The error was not harmless beyond a reasonable doubt and, accordingly, we reverse the judgement of the district court.
BELLONI, District Judge, dissenting:
29
I dissent. The majority opinion demonstrates the possibility of error that exists when a court injects into a case an issue that the parties did not raise, brief or argue at trial or on appeal. The majority concludes: that the judge committed "plain error" under the Confrontation Clause of the Sixth Amendment by admitting into evidence, over the objection of the appellant under Fed.R.Evid. 403, certain testimony of Special Agent Johnson; that the "plain error" was not "harmless beyond a reasonable doubt," Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982); and that, therefore, reversal is required. The majority's analysis does not support a reversal.
30
The majority describes the testimony of Agent Johnson as double hearsay--the appellant to Walker and Walker to Johnson.1 The characterization is erroneous. The first-level statement contains two components: the accusatory statement by Simmons, and the appellant's adoption of the statement by his silence. Neither of the components constitutes hearsay, and it is, therefore, incorrect to speak of Agent Johnson's testimony as double hearsay.
31
Without first considering whether a Confrontation Clause analysis is appropriate for the first-level statement, the majority begins examining the first-level statement, for "necessity" and "reliability" under Ohio v. Roberts, 448 U.S. 56, 65, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597 (1980), and United States v. Fleishman, 684 F.2d 1329 (9th Cir.), cert. denied, --- U.S. ----, 103 S. Ct. 464, 74 L. Ed. 2d 614 (1982). Because the majority mixes together the two component statements in its analysis of the first-level statement, I cannot tell whether the majority is holding that the admission of Simmons's statement, or of the appellant's adoption of the statement, or of both in concert, violated the Confrontation Clause.2 Whatever the majority's intent, I disagree with its conclusion.
32
To the extent the majority decides that the admission of Simmons's statement presents a problem under the Clause, the majority's holding is directly at odds with part of the holding in United States v. Giese, 597 F.2d 1170 (9th Cir.), cert. denied, 444 U.S. 979, 100 S. Ct. 480, 62 L. Ed. 2d 405 (1979). Giese holds inter alia, that statements like Simmons's come in only to lay the foundation for showing the accused's failure to deny the statements, and are not hearsay because they are not offered to prove the truth of the matter asserted. Id. at 1195; see Fed.R.Evid. 801(c). Under Giese, because Simmons's statement was not offered for its truth, the appellant cannot have any constitutional right to cross-examine Simmons. 597 F.2d at 1105; see Anderson v. United States, 417 U.S. 211, 220, 94 S. Ct. 2253, 2260, 41 L. Ed. 2d 21 (1974). Accordingly, the majority's discussion whether or not Simmons was "available" for trial is irrelevant. Instead of assuming that Simmons was "unavailable" the majority should have followed Giese.3
33
Because Giese undercuts any contention that Simmons's statement could be the source of a Confrontation Clause problem, the problem, if one exists, would have to be in the admission of appellant's own "statement by silence." To the extent the majority raises this issue, it creates the odd situation of having the "declarant" object on hearsay grounds to the admission of his own statement. As the court stated in United States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied, 439 U.S. 870, 99 S. Ct. 200, 58 L. Ed. 2d 182 (1978), when faced with an appellant that raised the issue, "[t]his is an ironic twist in that the rule against hearsay has as its primary purposes the protection of the right of litigants to confront witnesses against them and to test their credibility through cross-examination." Id. at 487. As was stated in Evans, this "unique situation" should certainly color the court's consideration of the issue. Id. at 488 (citing Fed.R.Evid. 102).
34
The Evans court found the answer to its problem in the principle, recognized also in this Circuit, that "[a]ny and all statements of an accused person, so far as are not excluded by the doctrine of confessions or by the privilege against self-incrimination, are usable against the accused as an admission, and are not hearsay." Id. at 488.4 See United States v. Weiner, 578 F.2d 757, 770 (9th Cir.), cert. denied, 439 U.S. 981, 99 S. Ct. 568, 58 L. Ed. 2d 651 (1978).
35
The Evans principle may not completely solve the problem here, however, because the appellant's admission was a special kind of admission: an adoptive admission under Fed.R.Evid. 801(d)(2)(B). The applicability of the Confrontation Clause to adoptive admissions has not been a common issue in the case law, but a number of courts have held that the admission of adoptive statements is proper and they have rejected Confrontation Clause arguments against the admission of this kind of statement (the same courts have recognized, however, that a defendant still can challenge the voluntariness of his ratification of the statement). See Poole v. Perini, 659 F.2d 730 (6th Cir.1981), cert. denied, 455 U.S. 910, 102 S. Ct. 1259, 71 L. Ed. 2d 450 (1982) (see particularly the cases cited at 659 F.2d 733 and the accompanying discussion).
36
As the court in Perini states, "An adoptive [statement] avoids the confrontation problem because the words of the hearsay become the words of the defendant." Other relevant case authority includes United States v. Lemonakis, 485 F.2d 941 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885 (1974) (court affirmed a trial judge's admission into evidence of certain incriminating statements adopted by the appellant and stated that "the exclusionary principles embodied in the Confrontation Clause [do not] nullify the well-established reasons for making such admissions exceptions to the hearsay rule." Id. at 949 (citations omitted))5; and United States v. Giese, 597 F.2d at 1197 ("Neither due process, fundamental fairness, nor any more explicit right contained in the Constitution is violated by the admission of the silence of a person, not in custody or under indictment [,] in the face of accusations of criminal behavior").6
37
The majority's opinion does not make good law to the extent it concludes that the Confrontation Clause can be violated by the admission at trial against an accused of his own out-of-court adoptive statements. The accused will always be "available" at trial, and he can, if he chooses confront and rebut his out-of-court statements through his own direct testimony or through the introduction of other evidence. If he chooses not to do so, that is his right too. See United States v. Rylander, --- U.S. ----, 103 S. Ct. 1548, 1552, 75 L.Ed.2d ---- (1983). Moreover, as the Perini decision and others recognize, an accused has every opportunity to interpose a proper objection and to make the government prove to the court, preliminarily, and to the jury, ultimately, that the accused heard and understood the statement yet failed to deny it when a reasonable person would have done so.
38
Accordingly, I would conclude that neither Simmons's statement nor the appellant's adoptive admission properly could have been the basis of an objection under the Confrontation Clause. The majority does not reach any issue about the second-level statement on Agent Johnson's testimony so I do not discuss it here. If this case is to be decided on the basis of the Confrontation Clause, I would require a rebriefing and oral argument. The majority does not reach any of the other issues presented in the appeal, so it would be imprudent of me to address them here. For the reasons set forth above, I respectfully dissent.
*
Honorable Robert C. Belloni, United States District Judge for the District of Oregon, sitting by designation
1
Had Simmons been called as a witness at McKinney's trial it is likely he would have asserted his constitutional right against self-incrimination. Such an assertion makes the declarant unavailable for purposes of the Confrontation Clause. United States v. Fleishman, 684 F.2d at 1338
2
As the testimony of Agent Johnson was double hearsay, the necessity and reliability of the statements by Simmons and Walker both need to be examined for Confrontation Clause purposes. We have determined that admission of Simmons' statement against McKinney violated his confrontation rights, see infra, and, therefore, do not reach the issue of Walker's statement
We note that Walker testified she did not recall Simmons statement to her. A lapse of memory may satisfy the necessity requirement of the Confrontation Clause. See California v. Green, 399 U.S. 149, 167-68, 90 S. Ct. 1930, 1939-1940, 26 L. Ed. 2d 489 (1970).
3
As examples of firmly rooted hearsay exceptions the Court listed, dying declarations, cross-examined prior-trial testimony, and business and public records. 448 U.S. at 66 n. 8, 100 S. Ct. at 2539 n. 8
4
Fed.R.Evid. 801(d)(2)(E), states:
A statement is not hearsay if--
the statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
5
In Fleishman, we discussed the analysis which should be followed to test statements which fall into the coconspirator exception. We stated:
The four reliability factors discussed in Dutton [v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213] and Perez are: (1) whether the declaration contained assertions of past fact; (2) whether the declarant had personal knowledge of the identity and role of the participants in the crime; (3) whether it was possible that the declarant was relying upon faulty recollection; and (4) whether the circumstances under which the statements were made provided reason to believe that the declarant had misrepresented the defendant's involvement in the crime. The reliability factors discussed in Dutton, however, are not to be considered exhaustive, nor are all factors required to be present in order to admit the declarations. An additional factor, sometimes discussed and its relevance debated, is whether the testimony of the coconspirator was "crucial" or "devastating."
United States v. Fleishman, 684 F.2d at 1339 (citations omitted).
6
In Ohio v. Roberts the Court stated that if evidence does not fit into a hearsay exception it must be excluded "at least absent a showing of particularized guarantees of trustworthiness." 448 U.S. at 66, 100 S. Ct. at 2539. This statement appears to approximate the showing required by the "catch all" hearsay exceptions. See Fed.R.Evid. 803(24) and 804(b)(5)
7
Fed.R.Evid. 801(d)(2)(B) states:
A statement is not hearsay if--
The statement is offered against a party and is ... a statement of which he has manifested his adoption or belief in its truth.
8
We do not reach the issue of whether Walker's statement to Johnson fits into a hearsay exception
9
McKinney was supposedly the tallest of the three robbers. One government witness described the tall robber as approximately 6'1" wearing a brown nylon stocking mask and carrying a short-barreled, greyish colored gun. She could not testify as to the color of his clothes. In an interview with Agent Johnson she picked out two photographs from a lineup as looking similar to the tall robber. One of those pictures was of McKinney
The second government witness described the tall robber as approximately 6'1". He carried a small, dark, silver colored revolver similar to that produced at trial. She agreed with McKinney's counsel that she would be unable to positively identify the robbers since they wore masks. She stated she chose McKinney's photo out of a lineup based primarily on his upper body build.
The third government witness could not identify McKinney's face or recall his clothing. When asked if she could identify McKinney as the tallest robber she replied, "I'm not sure, but it seems like I've seen him before." She chose McKinney's photo out of a lineup based on the size of his shoulders.
1
Walker was Simmons's girlfriend, with whom Simmons lived at the time of the robbery, and she was interviewed by Agent Johnson on two occasions shortly after the robbery. At the time of the appellant's trial, Walker had married Simmons
2
The majority looks to Simmons as the declarant to determine "necessity," decides because of an inadequate record to assume that Simmons was "unavailable," and on the strength of this assumption goes on to analyze "reliability." The majority, however, switches its focus at this point to the appellant and the statement he made by silently adopting Simmons's statement. The majority concludes that the record provides an inadequate foundation for the admission of the appellant's "statement," and is, therefore, "unreliable." I have two comments. First, even if a Confrontation Clause analysis were appropriate, the majority's discussion would be faulty because it looks to the "availability" of one declarant and the "reliability" of another. Second, any inadequacies in the trial record on this point are doubtless due to the appellant's failure to object on hearsay or Confrontation Clause grounds to the testimony of Agent Johnson. The majority does not discuss whether the absence of a proper objection ought to have an impact on this appeal
3
In Giese, the court did not find any violation of the Confrontation Clause in the admission into evidence of the accusatory statement of a Mr. Brown, whose statement in turn contained an accusatory statement by a Mr. Severin that Brown was reporting to the appellant. The statements all came in as background for the appellant's adoptive admission
4
Fed.R.Evid. 801(d) was amended to exclude admissions by a party opponent from the category of hearsay. As stated in the notes appended to the Rule, "[a]dmissions by a party opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule." Fed.R.Evid. 801 advisory committee note to subdivision (d)(2) (citing Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); and 4 Wigmore Sec. 1048). See Graham, M. Handbook of Federal Evidence Sec. 801.15 ("While formerly considered an exception to the hearsay rule, in recognition of its position in the adversary system, Rule 801(d)(2) defines an admission by a party-opponent as not hearsay. Lack of opportunity to cross-examine is deprived of significance by the incongruity of the party objecting to his own statement on the ground that he was not subject to cross-examination by himself at the time." (Footnotes omitted)
5
The Lemonakis case involved the admissibility of the taped conversation of the appellant and a co-defendant that included statements by the co-defendant that came in against the appellant as adoptive admissions. The case was decided at a time when admissions were treated as exceptions to the hearsay rule. The Lemonakis court noted, however, the pendency of the change in the Rules to exclude admissions by definition from the category of hearsay. Id. at 949, n. 10. The Lemonakis court concluded, however, that even under the then-current state of affairs, the Confrontation Clause was not violated by the admission of adoptive statements
6
The appellant did not contend, specifically, in Giese that the admission into evidence of the appellant's adoptive statements violated the Confrontation Clause. The appellant did make a Confrontation Clause argument against the admission of the statements of others that he was alleged to have adopted. The appellant also made a number of specific challenges to the admission of his own statements. The court conducted a very careful inquiry into all of these specific issues and could well have reviewed the adoptive admissions for a Confrontation Clause problem under the "plain error" rule if it felt such review was warranted. Based on the facts and legal issues in Giese, the court's statement that the admission of the appellant's silence did not violate any explicit right contained in the Constitution becomes persuasive, although not conclusive authority, on the issue presented here | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/418239/ | 707 F.2d 388
May C. TAYLOR and Pearle Taylor, Plaintiffs-Appellants,v.FIRST WYOMING BANK, N.A.; Kemmerer; Mae Jean Julian; RoyA. Jacobsen, Jr.; C. Stuart Brown; Mark L. Gladden;Passalacqua & Mazzoni; Orin Geesey; F. Donald Steadman,and Does One through Twenty, inclusive, Defendants-Appellees.
No. 82-4341.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 16, 1983.Decided May 23, 1983.
Howard L. Hibbard, Hibbard Legal Clinic, San Mateo, Cal., for plaintiffs-appellants.
Martin Glickfeld, Cartwright, Sucherman, Slobodin & Fowler, Inc., San Francisco, Cal., for defendants-appellees.
On Appeal from the United States District Court for the Northern District of California.
Before MERRILL, CHOY and SNEED, Circuit Judges.
MERRILL, Circuit Judge:
1
In 1970, a Wyoming state court declared Appellant May C. Taylor judicially incompetent. Appellees First Wyoming Bank and certain of its employees were appointed guardian of her person and estate.1 She was placed in a rest home in Idaho.
2
According to the complaint, in 1980 Appellant May C. Taylor came to live with her daughter, Appellant Pearle Taylor, in California. The undisputed facts indicate that the guardian obtained an order from the Superior Court of Sonoma County, California, directing that May C. Taylor be placed in a convalescent hospital in Sonoma County pending a hearing to show cause why custody should not be awarded to the guardian. At that point the mother and daughter brought this action under 42 U.S.C. Sec. 1983,2 alleging that the conduct of the Bank, certain of the Bank's officers and employees, a state court judge, certain doctors, and certain attorneys who had purported to act on behalf of the mother and her guardian, constituted action taken under color of state law and were violations of the mother's civil rights.
3
The action against the Bank was dismissed on the grounds of improper venue. The action against the judge was dismissed on the grounds of judicial immunity. The actions against the other defendants were dismissed for failure to state a claim upon which relief could be granted. No appeal is taken from the dismissal of the actions against the Bank or the judge. On this appeal, the sole question is whether action taken by a court-appointed guardian under the circumstances here involved can be said to constitute action taken under color of law.
4
Action under color of state law normally consists of action taken by a public agency or officer. When taken by a private person, "[t]he mere fact that a business is regulated by state law or agency does not convert its dealings into acts 'under color of state law' ". Freier v. New York Life Ins. Co., 679 F.2d 780, 783 (9th Cir.1982). A private action may constitute an action under color of state law if the private person wilfully participates in joint action with the state or its agents. See Briscoe v. Lahue, --- U.S. ----, ----, 103 S. Ct. 1108, 1113 n. 7, 75 L. Ed. 2d 96 (1983); Baer v. Baer, 450 F. Supp. 481, 486 (N.D.Cal.1978). The private action may also be under color of state law if it constitutes the exercise of "some power delegated to [the private person] by the state which is traditionally associated with sovereignty" or is "traditionally exclusively reserved to the state". Jackson v. Metropolitan Edison Company, 419 U.S. 345, 352, 95 S. Ct. 449, 454, 42 L. Ed. 2d 477 (1974); see Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 157, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978).
5
In Musso v. Suriano, 586 F.2d 59, 63 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S. Ct. 1534, 59 L. Ed. 2d 788 (1979), the court applied the test as stated in Flagg Brothers to a private nursing home. It held that acts performed by the home and its employees did not constitute action under color of state law, noting that "[c]are of the elderly and infirm has traditionally been a function associated with the family, not with sovereignty". 586 F.2d at 63.
6
The same result was reached in the case of a private orphanage in Henig v. Odorioso, 385 F.2d 491, 495 (3d Cir.1967), cert. denied, 390 U.S. 1016, 88 S. Ct. 1269, 20 L. Ed. 2d 166 (1968).
7
The case would be different if the person requiring care and attention had in effect been made a ward of the state. In Perez v. Sugarman, 499 F.2d 761 (2d Cir.1974), child welfare officials of New York City took custody of certain children whose mother had been taken to a hospital. The officials placed the children in private child-caring institutions which refused to return them to their mother on her discharge from the hospital. Id. at 763. She brought suit under Sec. 1983. State law provided that government officials "shall be responsible for the welfare of children who are in need of public assistance", and that the state officials in fulfilling this responsibility could act "through an authorized agency". Id. at 765. The court held that the actions of the child-care institutions were actions under color of state law, concluding that "it is the State which in effect is providing the care through the private institution." Id.
8
Here the state is not responsible for the care of the mother and is not providing for her care. The mother is in no sense a ward or responsibility of the state. The guardian, in the performance of her duties, was not participating in joint action with the state or acting for the state or serving a public function. Her actions did not constitute the exercise of power traditionally associated with sovereignty or reserved to the state.3
9
We conclude that the actions of the guardian did not constitute action under color of state law and that the Sec. 1983 action against the guardian was properly dismissed for failure to state a claim.4
10
JUDGMENT AFFIRMED.
1
Appellee First Wyoming Bank was guardian of May C. Taylor's estate; Vellano Carera, a First Wyoming Trust employee, was guardian of May C. Taylor's person from 1974 until 1979, when Carera was succeeded by Appellee Mae Jean Julian
2
42 U.S.C. Sec. 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
3
In Hohensee v. Grier, 373 F. Supp. 1358, 1364 (M.D.Pa.1974), aff'd without opinion, 524 F.2d 1403 (3d Cir.1975), cert. denied, 426 U.S. 940, 96 S. Ct. 2659, 49 L. Ed. 2d 392 (1976), the court indicated that the actions of a court-appointed receiver of a corporation could be considered state action. The court noted, however, that a receivership, like an injunction, is an extraordinary remedy constituting the hand or arm of the court, and is subject to the court's exclusive control. The same cannot be said of a court-appointed guardian
4
We find no merit in any of Appellants' other contentions. The contentions regarding the doctor are irrelevant because the doctor is not a party to this appeal. The actions of the lawyers simply did not constitute action under color of state law. With respect to Appellants' claim against the lawyers under 42 U.S.C. Sec. 1985(3), it is meritless in that it fails to allege a denial of equal protection of the laws | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/418265/ | 707 F.2d 472
STATE OF FLORIDA ex rel., Earl COLSTON, Nathaniel Holifield,Harvey Lee Little, Robert Malone, Danny Moss,Wallace Ponder, Michael Richardson,James Youngblood, Petitioners-Appellants,v.Fred CRAWFORD, Dir. of Corrections; Hon. James S.Rainwater, Judge; Hon. Gerald T. Wetherington, Judge; Allthe Other Judges of the Eleventh Judicial Circuit Who May beAssigned to Hear Contempt Cases; Janet Reno, StateAttorney, and Steve Grossbard, Asst. State Attorney,Respondents-Appellees.
No. 81-6212.
United States Court of Appeals,Eleventh Circuit.
June 16, 1983.
Elizabeth S. Baker, Coconut Grove, Fla., Reemberto Diaz, Hialeh, Fla., for petitioners-appellants.
Charles A. Stampelos, Miami, Fla., Marilyn Altman, West Palm Beach, Fla., for respondents-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before GODBOLD, Chief Judge, ANDERSON, Circuit Judge, and GOLDBERG*, Senior Circuit Judge.
PER CURIAM:
1
Petitioners are fathers held in contempt, and jailed, by a Florida state court for failures to pay child support. They appealed, alleging that they are indigents and that there were constitutional deficiencies in the contempt hearing. They then filed a petition for writ of habeas corpus in federal court, seeking an order releasing them on bail pending the state court appeal.1 The district court dismissed the petition.
2
On April 15, 1983 the state court appeal was decided by the Third District Court of Appeals for the State of Florida, which held that the contempt proceedings deprived petitioners (and others) of due process and reversed the contempt orders with directions concerning proper hearings. Robbins v. Robbins, 429 So. 2d 424 (and other cases).2
3
There being no further issue of right to bail pending the state court appeal, this appeal from the denial of the writ is moot. The judgment of the district court is VACATED and the cause is REMANDED to the district court with instructions to dismiss the case as moot.
*
Honorable Irving L. Goldberg, U.S. Circuit Judge for the Fifth Circuit, sitting by designation
1
Petitioners also sought declaratory and injunctive relief under 42 U.S.C. Sec. 1983, requiring the state to provide counsel in contempt proceedings such as theirs. This claim was abandoned on appeal
2
Counsel informed this court on April 21, 1983 that no petitions for rehearing were filed in this case and that the mandate issued April 20, 1983 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/426428/ | 720 F.2d 543
UNITED STATES of America, Appellant,v.ONE 1979 DATSUN 280 ZX, VIN HS130-143161, Appellee.
No. 83-1166.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 10, 1983.Decided Nov. 9, 1983.
Richard C. Turner, U.S. Atty., Ronald M. Kayser, Asst. U.S. Atty., S.D. Iowa, Des Moines, Allan P. Mackinnon, Atty., U.S. Dept. of Justice, Washington, D.C., for appellant.
Barbara G. Barrett of Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, Iowa, for claimant, Pamela Sue Huffman.
Before ROSS, McMILLIAN and BOWMAN, Circuit Judges.
PER CURIAM.
1
This is an appeal by the government from a decision of the United States District Court in a drug related forfeiture case which found that the claimant, Pamela Huffman, is entitled to recover her automobile, a 1979 Datsun 280 ZX. We affirm.
2
Huffman purchased the vehicle in 1979 and financed it through the First National Bank of Columbus. In 1981, knowing that she was to be laid off from her job and would have trouble making her payments, Huffman began looking for a buyer for the car. Subsequently, she allowed Everroad, her ex-husband, to drive the car to Iowa to show it to a prospective buyer. While Everroad was in Iowa, he was arrested for possession of cocaine with intent to distribute and for conspiring to distribute cocaine and marijuana.1 At that time the government seized the vehicle pursuant to 49 U.S.C. Secs. 781-788 and 21 U.S.C. Sec. 881.
3
The magistrate found that the evidence in this case did not support a finding that the Datsun was substantially associated with the Iowa drug transaction. The Supreme Court noted in United States v. U.S. Coin and Currency, 401 U.S. 715, 721-22, 91 S.Ct. 1041, 1044-45, 28 L.Ed.2d 434 (1971):
4
When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise.
5
See also United States v. One 1972 Datsun, 378 F.Supp. 1200, 1204 (D.N.H.1974). We agree with the magistrate's analysis that the remedial goals of the forfeiture statutes would not be directly promoted by forfeiture of Huffman's vehicle.
6
The magistrate also determined that the evidence was sufficient to establish the probable cause necessary to believe that the Datsun was used or intended to be used in a manner which would facilitate the transportation, sale, receipt, possession or concealment of a controlled substance. 21 U.S.C. Sec. 881(a)(4) (1976). However, in United States v. Everroad, 704 F.2d 403, 404 (8th Cir.1983) we held on the same facts that the officers did not have probable cause to arrest Everroad. Id. at 406. Likewise, and for the same reasons, we hold the government did not have the necessary probable cause to support the seizure of the vehicle.
7
Accordingly, we affirm the judgment of the district court.
1
Everroad was convicted in a jury trial, but the conviction was reversed in United States v. Everroad, 704 F.2d 403 (8th Cir.1983) (warrantless arrest was not supported by probable cause) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/796980/ | 478 F.3d 546
In re AMERICAN PAD & PAPER COMPANY, Debtor.Steven G. Singer, Chapter 7 Trustee, Appellantv.Franklin Boxboard Co. a/k/a Franklin Boxboard Company; Bennington Paperboard Company, Divisions of the Newark Group Inc.Margaret Harrison, Trustee.In re American Pad & Paper Company, Debtor.Steven G. Singer, Chapter 7 Trustee, Appellantv.Kimberly-Clark Corporation d/b/a/ Neenah Papers.Margaret Harrison, Trustee.In re American Pad & Paper Company, Debtor.Steven G. Singer, Chapter 7 Trustee, Appellantv.Frontier Communications of America Inc.; Frontier Communications of Fairmont Inc.; Frontier Communications of Georgia Inc., d/b/a Frontier Communications Service.Margaret Harrison, Trustee.In re American Pad & Paper Company, Debtor.Steven G. Singer, Chapter 7 Trustee, Appellantv.Strategic Paper Group, LLC.Margaret Harrison, Trustee.
No. 05-1379.
No. 05-1380.
No. 05-1381.
No. 05-1382.
United States Court of Appeals, Third Circuit.
Argued November 6, 2006.
Filed March 2, 2007.
Adam Singer (Argued), Cooch & Taylor, Wilmington, DE, Attorney for Appellant Steven G. Singer.
Jeffrey M. Schlerf, The Bayard Firm, Wilmington, DE, Bruce Buechler, Lowenstein Sandler, Roseland, NJ, Attorneys for Appellees Franklin Boxboard Co. and Bennington Paperboard Co.
Katherine M. Perhach, Quarles & Brady, Milwaukee, WI, Attorney for Appellee Fox River Paper Co.
George M. Cheever, Kirkpatrick & Lockhart Preston Gates Ellis, Pittsburgh, PA, Attorney for Appellee W + D Machinery Co., Inc.
Joseph J. Bodnar, Monzack & Monaco, Wilmington, DE, Attorney for Appellees W + D Machinery Co., Inc., and Fibermark Inc.
John J. Schmidt, Dinsmore & Shohl, Cincinnati, OH, Victoria W. Counihan, Dennis A. Meloro, Greenberg Traurig, Wilmington, DE, Attorneys for Appellee JBM Envelope Co., Inc.
Christopher P. Simon, Cross & Simon, Wilmington, DE, Attorney for Appellee Dwyer Associates, Inc.
Ashley B. Stitzer, The Bayard Firm, Wilmington, DE, Attorney for Appellees Beautone Specialties and Crown Roll Leaf Inc.
E. Franklin Childress, Jr., Baker, Donelson, Bearman, & Caldwell, Memphis, TN, Stephanie A. Fox, Maron, Marvel, Bradley & Anderson, Wilmington, DE, Attorneys for Appellees Champion International Corp., Nationwide Papers, International Paper Co., d/b/a Beckett Papers, d/b/a XPEDX, d/b/a Strathmore Paper Co., d/b/a Queen City Paper Co.
David M. Fournier, Pepper Hamilton, Wilmington, DE, Michael H. Traison, Donald J. Hutchinson (Argued), Miller, Canfield, Paddock & Stone, Detroit, MI, Attorneys for Appellees Georgia Pacific Corp, Great Northern Nekoosa Corp., Unisource Worldwide, Fort James Corp., d/b/a Fort James Communications Papers.
Kathleen M. Miller, Smith, Katzenstein & Furlow, Wilmington, DE, Attorney for Appellee Kimberly Clark Corp.
Lisa C. McLaughlin, Phillips, Goldman & Spence, Wilmington, DE, Attorney for Appellees Frontier Communications, Frontier Communications of America, Inc., Frontier Communications GA, Inc., and Strategic Paper Group.
Gilbert L. Hamberg, Yardley, PA, Attorney for Appellees Frontier Communications, Frontier Communications of America, Inc., and Frontier Communications GA, Inc.
David N. Crapo, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, Attorney for Appellee Strategic Paper Group.
Before SLOVITER, CHAGARES, and NYGAARD, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
1
Section 546(a) of the Bankruptcy Code sets a two-year limit for the commencement of avoidance actions on behalf of the bankruptcy estate to recover money or property transfers. This provision was amended in 1994 to provide an additional year for such actions running from the date of the appointment or election of certain trustees, if such appointment or election occurs before the expiration of the aforementioned two-year period.
2
Appellant Steven G. Singer, the elected Chapter 7 Trustee for the debtors in this proceeding, filed numerous actions to avoid certain preferences that were made by the debtor. Those actions were dismissed as untimely by the Bankruptcy Court and affirmed by the District Court. He appeals, asking us to interpret the statutory language regarding the statute of limitations so as to make timely the avoidance actions he filed. As discussed below, the language of the statute will not bear such an interpretation.
I.
3
On January 10, 2000, a number of creditors filed involuntary Chapter 11 petitions in the Bankruptcy Court for the District of Delaware against American Pad & Paper Company and six related companies (the "debtors"), which had been in the business of manufacturing and marketing a variety of paper and stationery products. On January 14, 2000, each debtor filed a voluntary Chapter 11 petition, as well as a request that the Bankruptcy Court enter an order for relief upon the debtors' joint consent. That same day, the Bankruptcy Court entered the order for relief, as well as an order directing the joint administration of the cases. Almost two years later, on December 21, 2001, the Bankruptcy Court entered an order granting a motion made by the creditors' committee to convert the cases to Chapter 7. By the terms of the order, the conversion to Chapter 7 was to be effective on January 3, 2002.
4
Also on January 3, 2002, the United States Trustee appointed Jeoffrey Burtch as interim Chapter 7 trustee pursuant to section 701 of the Bankruptcy Code. That section provides:
Interim trustee
5
(a) (1) Promptly after the order for relief under this chapter, the United States trustee shall appoint one disinterested person that is a member of the panel of private trustees established under section 586(a)(1) of title 28 or that is serving as trustee in the case immediately before the order for relief under this chapter to serve as interim trustee in the case.
6
(2) If none of the members of such panel is willing to serve as interim trustee in the case, then the United States trustee may serve as interim trustee in the case.
7
(b) The service of an interim trustee under this section terminates when a trustee elected or designated under section 702 of this title to serve as trustee in the case qualifies under section 322 of this title. (c) An interim trustee serving under this section is a trustee in a case under this title.
11 U.S.C. § 701 (emphasis added).1
8
It is significant for the issue before us that the date of the appointment of Burtch as the Chapter 7 trustee under section 701, January 3, 2002, was a mere eleven days prior to the two-year anniversary of the entry of the order for relief. A notice dated January 15, 2002 scheduled the meeting of creditors pursuant to section 341 of the Code for February 13, 2002. See 11 U.S.C. § 341 ("Within a reasonable time after the order for relief in a case under this title, the United States trustee shall convene and preside at a meeting of creditors."); 3 Collier on Bankruptcy ¶ 341.01 (15th ed. rev.2006) ("The chief function of the meeting of creditors is to provide the machinery for creditors to elect a trustee, examine the debtor and be heard generally in an advisory capacity on questions concerning the administration of the estate."). It is also evident that the creditors' meeting was scheduled for a date more than two years after the entry of the order for relief.
9
At the meeting, certain creditors requested the election of a trustee pursuant to section 702 of the Code,2 and a new individual, Steven Singer, the appellant in the instant case, was so elected on that date, more than two years after the entry of the order for relief.
10
It appears that trustees are infrequently elected under section 702, "primarily because of the substantial creditor effort needed to meet the statutory requirements for an election. [In cases where] no election takes place, the interim trustee [will] continue[] to serve as the trustee for the Chapter 7 case [pursuant to section 702(d)]." George M. Treister et al., Fundamentals of Bankruptcy Law § 2.03(a)(3) (2d ed.1988); 5 Collier on Bankruptcy ¶ 546.02(2)(a)(i) ("Since trustee elections under section 702 are rare, the date of the section 341 meeting usually will be the date of appointment of the trustee for purposes of section 546(a)(1)(B)."). Thus, had Singer not been elected the section 702 trustee at the section 341 meeting, interim trustee Burtch would have continued to serve as trustee by operation of section 702(d) of the Code, which provides that "[i]f a trustee is not elected under this section, then the interim trustee shall serve as trustee in the case." See also 5 Collier on Bankruptcy ¶ 546.02(2)(a) ("The interim trustee, who is appointed promptly [by the U.S. Trustee] after entry of the order for relief under section 701, automatically becomes the permanent trustee at the meeting of creditors pursuant to section 341 if creditors do not elect a trustee under section 702."). We note that notwithstanding the language in the excerpt from Collier, the term "permanent trustee" does not appear in the relevant sections of the Bankruptcy Code.
11
Between August and December 2002,3 trustee Singer filed approximately 150 avoidance actions under section 547 of the Code, which exists to prevent "debtors from depleting the estate to pay favored creditors with assets that otherwise would have been apportioned among creditors according to the prioritization scheme of the Bankruptcy Code." In re Pillowtex, Inc., 304 F.3d 246, 252 (3d Cir.2002). A number of defendants in the adversary actions moved the Bankruptcy Court to dismiss on the ground that they were filed beyond the applicable two-year statute of limitations. The Bankruptcy Court granted the motions to dismiss on October 28, 2003 and March 15, 2004. Singer v. Franklin Boxboard Co. (In re American Pad & Paper Co.), 303 B.R. 27 (Bankr.D.Del.2003); Singer v. Kimberly-Clark Corp. (In re American Pad & Paper Co.), 307 B.R. 459 (Bankr.D.Del.2004). The District Court affirmed on January 10, 2005 in Singer v. Franklin Boxboard Co. (In re American Pad & Paper), 319 B.R. 791 (D.Del.2005), and thereafter in three additional orders in January 2005, each pertaining to a related case and affirming the Bankruptcy Court orders for same reasons set forth in the January 10, 2005 opinion and order.
12
Singer filed timely Notices of Appeal of these four orders. This court consolidated the appeals by order entered February 8, 2005.
II.
13
The District Court had jurisdiction under 28 U.S.C. § 158(a) to hear appeals from the Bankruptcy Court's orders. We have jurisdiction under 28 U.S.C. § 158(d) and 28 U.S.C. § 1291 to hear this consolidated appeal from the District Court's final orders affirming the Bankruptcy Court's judgment. "Exercising the same standard of review as the [D]istrict [C]ourt, we review the bankruptcy court's legal determinations de novo, its factual findings for clear error and its exercise of discretion for abuse thereof." Reconstituted Comm. of Unsecured Creditors of the United Healthcare Sys., Inc., v. State of N.J. Dept. of Labor (In re United Healthcare Sys., Inc.), 396 F.3d 247, 249 (3d Cir.2005) (internal quotation marks and citations omitted). The parties agree that the matter before us concerns an issue of law. Moreover, it is an issue of first impression for this court.
III.
14
As revised by Congress in 1994, the statute of limitations on avoiding powers appears at 11 U.S.C. § 546(a), and reads in relevant part as follows:
Limitations on avoiding powers
15
(a) An action or proceeding under section . . . 547 . . . of this title may not be commenced after . . .
16
(1) the later of—
17
(A) 2 years after the entry of the order for relief; or
18
(B) 1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such appointment or such election occurs before the expiration of the period specified in subparagraph (A)[.]
19
The application of the above limitations period to our facts is straightforward. Here, the order for relief was entered on January 14, 2000. Thus, the initial two-year period expired on January 14, 2002, before Singer filed the avoidance actions at issue here. See, e.g., S. Technical Coll. v. Arkansas Television Co. (In re S. Technical Coll., Inc.), 172 B.R. 253, 254 (Bankr. E.D.Ark.1994) (reading the time computation provision in Rule 9006(a) of the Federal Rules of Bankruptcy Procedure as making timely a filing made on two-year anniversary date).
20
Singer did not bring the first of his actions until August of 2002, almost seven months past the two-year statutory period. As we noted earlier, Singer's election as trustee under section 702 did not take place until February 13, 2002, approximately a month after "the expiration of the period specified in subparagraph (A)," i.e., the expiration of the initial two-year period. See 11 U.S.C. § 546(a)(1)(B). Thus, from a plain reading of the statute of limitations, and as the Bankruptcy and District Courts held, Singer's avoidance actions are time-barred. "When [a] statute's language is plain, the sole function for the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms." Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d 273, 284 (3d Cir.2002) (internal quotation marks and citations omitted); In re First Merchs. Acceptance Corp. v. J.C. Bradford & Co., 198 F.3d 394, 403 (3d Cir.1999) (only absurd results and the most extraordinary showing of contrary intentions justify a limitation on the plain meaning of the statutory language); see also 5 Collier on Bankruptcy ¶ 546.02[2] ("If a trustee is appointed or elected within two years of the entry of the order for relief, the trustee is afforded one additional year from its appointment or election to commence avoidance actions. If a trustee is not appointed or elected prior to the expiration of the initial two-year period, commencement of avoidance actions is time-barred, even if a trustee is subsequently appointed or elected in the case.") (emphasis added).
IV.
21
Despite the fact that the statute of limitations plainly bars appellant's avoidance actions, appellant draws the court's attention to the date the interim trustee, Burtch, was appointed: January 3, 2002. Essentially, appellant argues that, because the interim trustee under section 701 was appointed on January 3, 2002, prior to the expiration of the initial two-year period, appellant as "permanent trustee" should have received an additional one-year period to file the avoidance actions, running from January 3, 2002. Yet, the plain language of the statute of limitations does not include section 701 interim trustees, and makes reference only to "1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202, or 1302[.]" The omission of section 701 from the list of sections is evident.
22
Reading the appointment of an interim trustee under section 701 as an event that triggers the additional one-year period has no basis in the language of the statute. See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6-7, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (noting the general inappropriateness, as a matter of statutory construction, of assuming that a catalogue of empowered parties in a statute is nevertheless a nonexclusive list, as where "a statute . . . names the parties granted [the] right to invoke its provisions, . . . such parties only may act") (internal quotation marks and citation omitted); United States v. Landmesser, 378 F.3d 308, 313 n. 8 (3d Cir.2004) ("The canon of expressio unius est exclusio alterius means that explicit mention of one thing in a statute implies a congressional intent to exclude similar things that were not specifically mentioned.") (internal quotation marks and citation omitted); see also Turner v. J.P. Bolduc et al. (In re Crowe Rope Indus., LLC), 311 B.R. 313, 314 (Bankr.D.Me.2004) (concluding there is no need to "invent[] a reference to § 701" in section 546(a)(1)(B), and rejecting argument that the one-year period ran from the date of the appointment of the interim trustee under section 701, instead of from the date of the section 341 meeting at which the interim trustee is appointed the trustee by operation of law pursuant to 702(d) if no trustee is elected); Styler v. Conoco, Inc. (In re Peterson Distrib., Inc.), 176 B.R. 584, 591 (Bankr.D.Utah 1995) ("The Bankruptcy Reform Act of 1994 also clarifies that the limitations period does not run from the appointment of an interim trustee. There is no added reference to § 701.").
23
In support of his argument based upon the date of Burtch's section 701 appointment, appellant calls our attention to a subsequently-overruled bankruptcy court decision that held that the additional one-year period under section 546(a)(1)(B) began to run upon the appointment of the interim trustee under section 701. Burtch v. Georgia-Pacific Corp. (In re Allied Digital Techs. Corp.), 300 B.R. 616 (Bankr. D.Del.2003), rev'd, 341 B.R. 171 (D.Del. 2006); see also Claybrook v. Ponderosa Indus. de Mexico (In re U.S. Wood Prods., Inc.), 2004 WL 1877730, at *24 (Bankr. D.Del. Aug.20, 2004) (concluding, in a case where, unlike the instant case, no trustee was elected that "[s]ince the Trustee was appointed within the two years of the order for relief and became the permanent trustee under section 702(d) when no trustee was elected, he is entitled to the one-year extension of time to file avoidance actions granted by section 546(a)(1)(B)" running from the date of his appointment as interim trustee).
24
In Allied Digital, the bankruptcy court entered the order for relief on October 25, 2000, and the first interim trustee was appointed on July 10, 2002, with a successor interim trustee appointed July 25, 2002. 300 B.R. at 618, 619. The section 341 meeting of creditors did not take place, however, until March 5, 2003, more than four months after the expiration of the initial two-year period. Id. at 617. Despite the expiration of the two-year period, the bankruptcy court held that avoidance actions brought by the successor interim trustee on June 6, 2003 were timely, and that a one-year window running from July 10, 2002 existed in which the interim trustee could bring avoidance actions. Id. at 618. The bankruptcy court concluded that it should read "section 701" into 546(a)(1)(B), as "there is no practical difference between the powers of an interim trustee and those of the permanent trustee." Id. at 619. It relied on the Ninth Circuit decision in Avalanche Maritime, Ltd. v. Parekh (In re Parmetex, Inc.), 199 F.3d 1029 (9th Cir.1999), that interpreted the pre-1994 version of the statute of limitations to conclude that the two-year period begins to run upon the appointment of the interim trustee under section 701. In Avalanche Maritime, the Ninth Circuit, noting the difficulty of parsing "this unclear statute," recognized that there was no reference to section 701 in the pre-1994 version of the statute, but it read section 701 into the list of authorizing statutes in order to give effect to the references to "appointment" in the statute and to reconcile its decision with earlier holdings in that circuit regarding the pre-1994 version of the statute. Id. at 1033-34.
25
Yet, as the district court in Allied Digital pointed out in reversing the holding of the bankruptcy court, the similarities in function between section 701 and section 702 trustees do not warrant interposing "section 701" where it does not appear in the statute. Allied Digital, 341 B.R. at 174 (holding that it was error for the bankruptcy court to have presumed that Congress intended to grant an additional one year to an interim trustee, and to have read "section 701" into 546(a)(1)(B), because a court must "begin with the text of [the] provision and, if its meaning is clear, end there") (internal quotation marks and citation omitted). Moreover, even the Allied Digital bankruptcy court noted that it was not passing on "whether a new one year period is barred if the election occurs outside the initial two years but an interim trustee was appointed within the two years." Allied Digital, 300 B.R. at 618 n. 2.4 That, of course, is the issue in the matter before us.
26
Surely, a conclusion that appellant's avoidance actions are timely, even though his "election" under section 702 plainly occurred after "expiration of the [two-year] period specified in subparagraph A," presents even greater direct conflict with the statutory language than the events at issue in Allied Digital.
27
As the Supreme Court stated in Bread Political Action Comm. v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982), "[o]ur analysis of this issue of statutory construction `must begin with the language of the statute itself[.]'" (quoting Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 187, 100 S.Ct. 2601, 65 L.Ed.2d 696 (1980)). Where statutory language is clear, "and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion." Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.2001) (en banc) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)); Lancashire Coal Co. v. Sec'y of Labor, Mine Safety and Health Admin. (MSHA), 968 F.2d 388, 391 (3d Cir.1992) ("[W]hen the statutory language is clear a court need ordinarily look no further[.]"). The Supreme Court has stated that "Congress says in a statute what it means and means in a statute what it says there." Hartford Underwriters Ins. Co., 530 U.S. at 6, 120 S.Ct. 1942 (internal quotation marks and citation omitted).
28
Even if we were to assume arguendo that the statutory language here contained some ambiguity that required a look outside the text, which was the case with the pre-1994 statute,5 the context of the 1994 amendment makes clear that Congress amended the statute in part to clarify the limitations period. Previously, courts had differed on when the period began to run in light of the ambiguous statutory language. Compare, e.g., Maurice Sporting Goods, Inc v. Maxway Corp. (In re Maxway Corp.), 27 F.3d 980, 982, 983 (4th Cir.1994) (finding that the unamended version of the statute required that an avoidance action be commenced "within two years after the appointment of one of the specified trustees or prior to the close or dismissal of the case, whichever occurs earlier," and rejecting contention that "two-year statute of limitations in § 546(a)(1) begins to run against a debtor in possession upon the filing of a Chapter 11 bankruptcy petition") with Constr. Mgmt. Servs., Inc. v. Mfrs Hanover Trust Co. (In re Coastal Group Inc.), 13 F.3d 81 (3d Cir.1994) (concluding that the debtor in possession was subject to same limitations that apply to bankruptcy trustee, including two-year statute of limitations, which begins to run from date of Chapter 11 petition filing).
29
Confusion had also arisen over whether subsequent appointment of new trustees granted the new appointees a fresh two-year period in which to bring actions. See, e.g., Lindquist v. FMB-First Michigan Bank (In re Dryland Marina, Inc.), 180 B.R. 487, 488 (Bankr.W.D.Mich.1995) ("The parties dispute the meaning of the phrase `appointment of a trustee' under this section of the Code. Plaintiff claims that the phrase means every trustee, while defendant asserts that it only means the first trustee."); see also 5 Collier on Bankruptcy ¶ 546.LH. [1][a] ("This [1994] amendment was intended to resolve conflicting interpretations of former section 546(a)(1) related to the applicability of its two-year limitations period to debtors in possession, trustees appointed after a debtor was in possession, and successor trustees.").
30
The 1994 amendment not only added the provision for a one-year addition in certain limited circumstances but it also clarified the operative two-year period as running from the date of entry of the order for relief, with the additional one-year period as specified in the statute. In a floor statement following the passage of the Act in the Senate, Senator Orrin G. Hatch noted his understanding that the two-year period runs from the filing of a Chapter 11 petition. He stated that "this amendment has arisen from a perceived need to provide a period of time for a later appointed bankruptcy estate representative to investigate and institute actions." 140 Cong. Rec. S28355, 28359 (Oct. 6, 1994). He continued, "[t]his amendment should prevent prejudice against potential [defendants] that would result from having to defend stale actions and should encourage estate representative[s] to investigate and resolve actions earlier in a bankruptcy case, thus minimizing estate expenses and maximizing the value of the estate to all creditors." Id.
31
Notwithstanding the amendment and the renewed focus on the statute of limitations and section 546 that it engendered, section 701 remained unenumerated in section 546. Where Congress has wished to include interim trustees appointed under section 701 in a provision in the Code, it has explicitly done so. See 11 U.S.C. § 507(a)(1)(C) (introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 to provide that, where a "trustee is appointed or elected under section 701, 702, 703, 1104, 1202, or 1302," the administrative expenses of the trustee shall be paid before payment of claims that benefit domestic support claims "under subparagraphs (A) and (B), to the extent that the trustee administers assets that are otherwise available for the payment of such claims") (emphasis added); see also In re Parmetex, Inc., 199 F.3d at 1037 n. 5 (McKeown, J., dissenting in part) (noting that "when Congress amended § 546(a) in 1994, it added the phrase `or election of the first trustee' after the term `appointment,' and maintained the express reference to § 702, while declining to add a reference to the interim trustee under § 701. These amendments indicate that Congress intended that the statute of limitations begin running upon designation of the § 702 trustee.") (internal citation omitted).
32
Finally, appellant has raised an argument that he frames as both an assertion that the statute as written produces absurd results and as a problem of due process. He asserts that the statute of limitations provides no notice as to when avoidance actions must be commenced, nor a reasonable period of time in which to bring such actions.6 Of course, the plain language of the statute provides the required notice as to which events will trigger the additional year period. Indeed, the committee of unsecured creditors noted as much in its November 21, 2001 motion papers arguing for a conversion of the case to Chapter 7.7 The statute puts all parties in interest on notice that the time for filing of avoidance actions will expire in two years, with the possibility of an additional one year if a trustee is appointed or elected under sections 702, 1104, 1163, 1202, or 1302 before the two years expire. See Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 215-16 (3d Cir.2002) ("Statutes of limitations are primarily designed to assure fairness to defendants. . . . The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.") (internal quotation marks and citations omitted).
33
We do not gainsay that appellant had no time to investigate and prosecute any avoidance actions. However, other parties in interest could arguably have brought avoidance actions before the running of the two-year period from the entry of the order of relief. See Official Comm. of Unsecured Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 580 (3d Cir.2003) (en banc) (in Chapter 11, bankruptcy court may grant derivative standing to a creditor or creditors' committee to pursue avoidance claims); 5 Collier on Bankruptcy ¶ 547.11[2][c][i] ("In its capacity as a debtor in possession, a chapter 11 debtor may seek to avoid and recover preferential transfers."); see also Bd. of Trs. of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 169 (3d Cir.2002) (causes of action are property of the estate).
34
The fact that appellant's claims, as the section 702 trustee, were already time-barred at the moment of his election in February 2002 does not make the application of the statute as written absurd. "[W]e do not sit to assess the relative merits of different approaches to various bankruptcy problems. It suffices that the natural reading of the text produces the result we announce. Achieving a better policy outcome — if what [appellant] urges is that — is a task for Congress, not the courts." Hartford Underwriters Ins. Co., 530 U.S. at 13-14, 120 S.Ct. 1942.
V.
35
In conclusion, we hold that section 546(a)(1)(B) of the Bankruptcy Code is amenable to a "plain language" analysis, and we decline to read section 701 into the specific statutory provisions delineated therein. Accordingly, we will affirm the District Court's orders.
Notes:
1
Section 322, referenced in section 701, requires that a person post bond in order to qualify as a trustee, "conditioned on the faithful performance of . . . official duties." Such bond must be filed within five days after the trustee's selection and before the trustee begins his or her official duties
2
Section 702(b) provides that "[a]t the meeting of creditors held under section 341 of this title, creditors may elect one person to serve as trustee in the case if election of a trustee is requested by creditors that may vote under subsection (a) of this section, and that hold at least 20 percent in amount of the claims specified in subsection (a)(1) of this section that are held by creditors that may vote under subsection (a) of this section." 11 U.S.C. § 702
3
Appellant's Brief gives September 8, 2002 as the inception date for these actions, but the docket sheet provided in the Appendix lists August 8, 2002 as the date that the first action was filed. The difference is immaterial to the issue before us
4
Appellant relies on the aforementionedClaybrook v. Ponderosa Indus. de Mexico (In re U.S. Wood Prods., Inc.), 2004 WL 1877730, as well as Bergquist v. Vista Dev., Inc. (In re Quality Pontiac Buick GMC Truck, Inc.), 222 B.R. 865 (Bankr.D.Minn.1998) and Burbach v. Providian Nat'l Bank (In re Burbach), 2001 WL 1891378 (Bankr.D.N.D. Oct.5, 2001), but those cases proceed on reasoning similar to that used by the bankruptcy court in Allied Digital which was convincingly reversed by the district court.
5
The 1993 version of the statute read, in applicable part:
§ 546. Limitations on avoiding powers
(a) An action or proceeding under section . . . 547 . . . of this title may not be commenced after the earlier of —
(1) two years after the appointment of a trustee under section 702, 1104, 1163, 1302, or 1202 of this title; or
(2) the time the case is closed or dismissed.
6
In support of his argument that a statute of limitations is only constitutional if it gives a party a "reasonable time to commence the actions before the bar takes effect," Br. at 17, appellant appears to quote from a line of case law that addresses the constitutionality ofnewly-created limitation periods as applied against existing claims. See, e.g., Block v. North Dakota ex rel. Board of Univ. & Sch. Lands, 461 U.S. 273, 286 n. 23, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (quoting Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982) (internal quotation marks and citations omitted)); Ross v. Artuz, 150 F.3d 97, 100 (2d Cir.1998) ("Because the Constitution prohibits governments from depriving any person of life, liberty, or property, without due process of law; all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts[.] It is thus impermissible for a newly enacted or shortened statute of limitations to extinguish existing claims immediately upon the statute's enactment.") (internal citation omitted). Such an issue is of course not before us here.
7
Its motion stated: "The only assets remaining in the Debtors' estates that are not encumbered by the security interests and liens of the Debtors's secured lenders are certain potential avoidance actions and other litigation recoveries." Section 546(a) of the Bankruptcy Code limits the period in which such avoidance actions may be commenced to two years after the entry of the order for relief. If a trustee is appointed or electedunder section 702 before the expiration of the two-year limitations period, section 546(a) extends such period by one year.
"The Committee believes that it is in the best interest of all creditors for the Debtors' cases to be converted to Chapter 7 . . . to exploit the extension afforded by section 546(a)." App. at 347 (emphasis added). | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/796981/ | 478 F.3d 557
AMERICAN SOCIETY FOR TESTING & MATERIALS, Appellantv.CORRPRO COMPANIES, INC., Michael Baach; Warren Rogers; Warren Rogers & Associates, Inc.
No. 05-4164.
United States Court of Appeals, Third Circuit.
Argued December 14, 2006.
Filed March 6, 2007.
Marc J. Sonnenfeld (argued), Karen Pieslak Pohlmann, Morgan, Lewis & Bockius, Philadelphia, PA, Attorneys for Appellant.
William W. Jacobs (argued), Thompson Hine, Cleveland, OH, Attorneys for Appellees.
Before FISHER, CHAGARES, and GREENBERG, Circuit Judges.
GREENBERG, Circuit Judge.
I. INTRODUCTION
1
In this declaratory judgment action plaintiff, American Society for Testing & Materials ("ASTM"), appeals from the district court's order dated August 10, 2005, and entered August 12, 2005, granting judgment in favor of defendants Corrpro Companies, Inc. ("Corrpro"), Michael Baach ("Baach"), Warren Rogers Associates, Inc. ("WRA"), and Dr. Warren Rogers ("Rogers") (collectively "defendants"). Am. Soc'y for Testing & Materials v. Corrpro Cos., 2005 WL 1941653 (E.D.Pa. Aug.10, 2005) ("ASTM"). Specifically, the district court found that ASTM had a duty in accordance with its bylaws to indemnify defendants for their attorney's fees and settlement costs in defending against and settling an underlying suit as well as attorney's fees defendants incurred in this action. For the reasons that follow, we will affirm the order of August 12, 2005, in part, dismiss the appeal in part, and remand the case to the district court for further proceedings.
II. FACTS AND PROCEDURAL HISTORY
A. The Parties
2
ASTM is a Pennsylvania non-profit corporation whose mission is to provide a forum for volunteer technical experts to develop and publish standards for materials, products, systems, and services. ASTM also develops methods for testing different properties and materials. ASTM has an approximate total membership of 30,000, drawing individuals from academic institutions, government agencies, consulting groups, testing laboratories, and private corporations. ASTM has 136 technical committees that do the actual work of developing standards. These committees are broken down further into 2,200 subcommittees and some 6,000 different task groups. ASTM has a 25-member Board of Directors (the "Board") that meets twice a year and that governs the standard-setting process. The Board, in turn, has a six-member Executive Committee that acts on its behalf when the full Board is not in session. Out of ASTM's 30,000 members, approximately 22,000 participate in technical committees and/or subcommittees.
3
Defendant Corrpro is in the business of providing corrosion control and cathodic protection (i.e., rust/corrosion prevention) services. At all times relevant to this action, defendant Baach was the Executive Vice President of Sales and Marketing for Corrpro. Defendant WRA is primarily in the business of providing mathematical and statistical consulting services. At all times relevant to this action, Rogers was President of WRA. In addition, Rogers was a member of Corrpro's Board of Directors from sometime in the mid-1990s until 2001 or 2002.
B. ASTM's Policies and Procedures
4
ASTM requires individuals applying for membership to disclose their corporate affiliations. But ASTM's policies, procedures, and guidelines do not prohibit an individual from participating in a standard-setting activity by reason of his association with or employment by a company with a financial interest in the technical standard on which he is working.
5
ASTM does not pay or otherwise compensate its members for time they expend on standard-setting activities. ASTM, however, does provide protection to its members with respect to litigation stemming from that activity. Specifically, under ASTM Bylaw No. 10.1:
6
Any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Society, or by reason of the fact that he is or was serving on a committee operating under the auspices of the Society, shall be indemnified by the Society against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Society and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
7
ASTM, 2005 WL 1941653, at *4. ASTM Bylaw No. 10.1 essentially tracks 15 Pa. Cons.Stat. Ann. § 5741 (West 1995), which governs indemnification for third-party actions as they pertain to nonprofit corporations.1
C. Development of the ES-40 Standard
8
In 1988, the United States Environmental Protection Agency ("EPA") promulgated regulations under the Resource Conservation and Recovery Act mandating the upgrading of all underground storage tanks ("USTs") by December 22, 1998. 40 C.F.R. § 280.21(a). The regulations permit the use of the following three alternative methods for upgrading USTs: (1) complete replacement; (2) replacement of the USTs' interior lining only; or (3) corrosion prevention through cathodic protection in appropriate circumstances.2 See id. at § 280.21(b).
9
Prior to 1994, the only method for assessing USTs over ten years of age that the EPA and states adhering to EPA regulations had approved involved manned-entry internal inspections. Such inspections most often led to the replacement of the USTs' interior lining, rather than to cathodic protection. In July 1993, Randall Nelson ("Nelson"), an EPA employee, invited a number of persons, including Baach and Rogers, to a preliminary meeting regarding the development of an ASTM standard3 which would permit alternate methods of UST assessment, including the evaluation of soil conditions around USTs to assess whether and when those USTs would corrode (which, in turn, would determine the most appropriate form of upgrade for a particular UST). Notably, in the late 1970s, Rogers had developed a statistical method for assessing and predicting when USTs would corrode and fail by evaluating variables in the soil surrounding them. The method that Rogers developed came to be known as "meantime to corrosion failure" or "MTCF." In the mid-1980s, WRA began regularly subcontracting with Corrpro for it to do the field work necessary for WRA to make its storage tank assessments. Most of the major oil companies retained WRA to implement Rogers' procedure so that the removal and replacement of existing USTs could be prioritized.
10
Nelson also invited Derick Sharp ("Sharp"), President of Armor Shield Corporation ("Armor Shield"), to attend the meeting. Armor Shield was in the business of providing equipment, materials, and installation services with respect to the interior linings of USTs, as well as manned-entry internal inspections of USTs. According to the defendants, at that time, given the lack of approved alternatives, Armor Shield enjoyed a "virtual de facto monopoly for UST assessments and upgrades." Appellees' br. at 6.4
11
Nelson's meeting resulted in the creation of an ASTM task group charged with developing a draft standard regarding alternative methods of assessing USTs. The task group's membership included Baach and Thomas Mehalick ("Mehalick"), who represented Corrpro; Rogers and William Jones ("Jones"), who represented WRA; Tony Rieck, who represented the National Leak Prevention Association; and Sharp and Hirsch Caudill ("Caudill"), who represented Armor Shield. The task group's work resulted in ASTM promulgating an emergency standard ("ES-40") in November 1994 that recognized, among other things, that Rogers' MTCF statistical method was a viable, non-invasive method for evaluating whether the use of cathodic protection could result in a successful upgrade of a UST. But because it was an emergency standard, ES-40 had a "life span" of only two years at which time it would expire. Not surprisingly, according to a finding the district court made, Sharp and Caudill were "adamantly opposed" to the creation of ES-40 and "frequently endeavored to disrupt and impede" the group's progress. ASTM, 2005 WL 1941653, at *4. Additionally, the court indicated that Sharp "frequently threatened to sue various individuals and companies on numerous occasions throughout the standard development process." Id. As will be seen these threats were not idle.
12
D. Creation of GS-148 and Armor Shield's Appeal to the ASTM's Committee on Standards
13
Sometime after the promulgation of ES-40, the G-01 (corrosion) committee assumed control over the development of a permanent standard. It also appears that ASTM's E-50 (environmental assessment committee) was involved in the development of the standards.5 While Rogers did not serve on the G-01 committee, Sharp not only served on that committee but also opposed the drafting of a permanent standard based on ES-40. Notwithstanding Sharp's objections, in October 1998, the G-01 Committee and ASTM's entire membership voted to create a permanent standard that was designated G-158. Like ES-40, G-158 recognized MTCF as a viable, non-invasive method for evaluating whether a UST could be upgraded via cathodic protection. During the above process, ASTM neither restricted nor suspended Baach or Rogers from participating in the task group or the E-50 and G-01 committees, and similarly did not tell either Baach or Rogers that his activities were either unwelcome or improper.
14
Acting on behalf of Armor Shield, Sharp immediately appealed the decision to create the G-158 standard to ASTM's Committee on Standards ("COS") arguing, among other things, that ASTM members with a commercial stake in the creation of G-158 were overrepresented on the G-01 committee and that the process used in the creation of the permanent standard was inconsistent with ASTM's standard-setting procedures. Sharp further argued that the G-158 standard would have anti-competitive effects and violate antitrust laws. The COS denied Sharp's appeal, finding that the composition of the G-01 committee did not violate ASTM's condition of balance6 and that the committee had followed both ASTM's procedural requirements as well as its criteria for due process. Sharp appealed from the COS's decision to the Board, raising many of the same issues he had argued previously. The Board, after hearing from Philip Schworer, Sharp's attorney, Victor Chaker, chairman of the G-01 committee, and James Bushman ("Bushman"), a member of the G-01 committee,7 affirmed the COS's findings, concluding that G-158 had been developed properly. Thereafter, the G-158 standard was officially adopted and released for publication.
E. The Armor Shield Litigation
15
The dispute regarding the adoption of the ES-40 and G-158 standards reflected a highly technical struggle between proponents of different methods of upgrading USTs, setting the stage for litigation between them. Sure enough, on November 12, 1998, less than a month after adoption of G-158 and its publication as a permanent standard, Armor Shield instituted an action charging antitrust violations in the United States District Court for the Northern District of Ohio (the "Armor Shield litigation"). Armor Shield named as defendants, among others, ASTM, Corrpro, Harco Technologies, Inc. (a Corrpro subsidiary), WRA, Baach, Rogers, and Bushman. The suit, however, did not include Mehalick or Jones, or any other employees or representatives of Corrpro or WRA. In its complaint, Armor Shield alleged, among other things, that the defendants had restrained trade by "conspiring with one another to manipulate and violate ASTM's regulations that all standards be developed through a rigorous and unbiased review process so as to promulgate the emergency ES-40 and G-158 permanent standards." ASTM, 2005 WL 1941653, at *4.
16
It is undisputed that the defendants strongly denied the allegations contained in Armor Shield's complaint and defended themselves vigorously in the action. Nonetheless, effective December 14, 2001, the parties settled the Armor Shield litigation, with the defendants paying Armor Shield $1.4 million. The settlement agreement did not apportion responsibility among the defendants, but Rogers and WRA contributed $50,000 to the total settlement and Baach and Corrpro contributed $1.225 million.8 ASTM, 2005 WL 1941653, at *6 ("The settlement agreement did not specify how much of those amounts were attributable to Warren Rogers or Michael Baach individually or to separate the individual defendants from the corporate entities with which they were affiliated."). The settlement agreement provided for Armor Shield's complaint to be dismissed with prejudice, without any findings or admissions of wrongdoing by Baach, Rogers, or ASTM, or, for that matter, any of the defendants.
17
The defendants in the Armor Shield litigation, who are the defendants here as well, incurred substantial costs and expenses. Specifically, in addition to their contributions to the settlement, Rogers and WRA incurred $338,083.85 in attorney's fees, costs, and expenses. Ultimately, WRA paid the total amount on behalf of both itself and Rogers.9 Similarly, in addition to paying their share of the settlement costs, Baach and Corrpro incurred $615,121.68 in attorney's fees, costs, and expenses. Of that amount, $80,408.61 was attributable to Baach alone, as he was represented in the litigation both jointly with Corrpro and individually. Although Corrpro advanced Baach's individual legal fees, National Union Fire Insurance Company of Pittsburgh ("National Union"), Corrpro's Director's and Officer's ("D & O") liability insurance carrier, reimbursed it for these expenses. Moreover, after the exclusion of a $150,000 deductible, National Union reimbursed Corrpro for 50% of the reasonable defense costs and expenses it paid to its own law firm. Ultimately, Corrpro incurred a total of over $300,000 in unreimbursed legal fees, costs, and expenses defending against the Armor Shield litigation.10 Finally, in addition to making the above reimbursements, National Union paid $700,000 of the $1.225 million settlement, reducing Corrpro's net contribution to the settlement to $525,000.11
F. Defendants' Requests for Indemnification
18
In or around May 1999, about six months after the Armor Shield litigation was initiated, defendants first requested that ASTM indemnify them for their reasonable attorney's fees, costs, and expenses as well as for any liability they might incur with respect to that litigation pursuant to ASTM Bylaw No. 10.1. But even earlier, ASTM President James Thomas, via letter dated December 2, 1998, had agreed that ASTM would reimburse Bushman for his reasonable attorney's fees and costs arising from the Armor Shield litigation "unless and until it becomes apparent to ASTM that Armor Shield's allegations concerning your conduct are supported by evidence. That is, until ASTM believes that you operated outside the auspices of the Society, in bad faith, or in a manner that was not in the best interests of the Society." J.A. at 982-83.
19
On August 26, 1999, ASTM's Executive Committee met via telephone conference call to consider what by then had become defendants' repeated requests for indemnification. At the time, "[i]t was the Committee's judgment, after thorough discussion, that it was not possible to say with assurance at this time that all of the requirements for the granting of indemnification contained in ASTM's by-laws (and in the Pennsylvania not-for-profit corporation law) had been met by any of the parties requesting indemnification. . . ." ASTM, 2005 WL 1941653, at *5 (internal quotations and citations omitted). Accordingly, the Executive Committee concluded it could not grant any of the defendants indemnification or, in the case of Bushman, continued indemnification. The Executive Committee made clear, however, that its judgment was not "final" but rather was subject to change depending upon additional information and developments in the case. Subsequently, the Board during a meeting held October 12-13, 1999, voted to approve the Executive Committee's denial of defendants' indemnification requests.12
20
After the parties finalized the settlement in the Armor Shield litigation in 2002, defendants again requested that ASTM indemnify them for their settlement costs and attorney's fees and costs in that litigation. But neither the Board nor the Executive Committee took any action in response to defendants' renewed request for indemnification.
G. Procedural History
21
ASTM filed the complaint leading to this appeal against defendants in the district court on September 10, 2002. In its complaint, ASTM sought a declaration that it was not required to indemnify defendants for attorney's fees and settlement costs arising from the Armor Shield litigation. Defendants answered ASTM's complaint, asserting counterclaims predicated on breach of contract and promissory estoppel theories. In their counterclaim defendants also sought a declaratory judgment based on ASTM Bylaw No. 10.1 ordering ASTM to indemnify them for their attorney's fees and settlement costs in the Armor Shield litigation. Moreover, defendants sought indemnification for any attorney's fees they would incur in this action attempting to enforce their rights under Bylaw No. 10.1.
22
From January 4 to January 7, 2005, the district court conducted a bench trial on the parties' respective claims. Thereafter, on August 12, 2005, the district court entered an order in which it found in favor of defendants, entering judgment against ASTM on defendants' counterclaim in the amount of $1,422,747.86, which sum included defendants' attorney's fees in the Armor Shield litigation. The district court further ruled that the defendants were entitled to recover attorney's fees incurred in this action and ordered them to submit their bills for the fees within 20 days and gave ASTM 20 days thereafter to object to them. The district court, however, never has fixed the fee award for this litigation.13 Id. ASTM appeals from the August 10, 2005 order both with respect to the indemnification order for the Armor Shield litigation and the unquantified award of fees against it in this case.
III. JURISDICTION AND STANDARD OF REVIEW
23
The district court exercised jurisdiction pursuant to 28 U.S.C. § 1332. Though we initially questioned our jurisdiction, for the reasons we explain below, we have concluded that we have jurisdiction pursuant to 28 U.S.C. § 1291.
24
We review a district court's findings of fact following a bench trial under the clearly erroneous standard. Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir.2005); Fed.R.Civ.P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."). By contrast, "[w]e have plenary review over a district court's conclusions of law." Kosiba v. Merck & Co., 384 F.3d 58, 64 (3d Cir.2004) (internal quotations and citation omitted). We similarly exercise plenary review "over a district court's choice and interpretation of legal precepts." Blasband v. Rales, 971 F.2d 1034, 1040 (3d Cir.1992). We apply this standard regardless of whether the district court has relied on federal or state law. Id. In this case, the parties are in agreement that Pennsylvania law governs the indemnification issues. Therefore, we are deciding this case the way that we believe that the Supreme Court of Pennsylvania would decide it except, of course, that we determine whether we have jurisdiction by applying principles of federal law.
IV. DISCUSSION
A. Jurisdiction over ASTM's appeal
25
Preliminarily, we address the threshold question of whether we have jurisdiction over this appeal. See Am. Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1169 (3d Cir.1989) (noting "we have the responsibility to satisfy ourselves of our jurisdiction"); Thermice Corp. v. Vistron Corp., 832 F.2d 248, 251 (3d Cir.1987). Because we questioned our jurisdiction, we directed the parties to provide letter briefs addressing whether the district court's failure to quantify its award of attorney's fees in this action, as distinguished from in the underlying Armor Shield litigation, precludes us from exercising jurisdiction. We asked for these briefs by reason of our opinion in Beckwith Machinery Co. v. Travelers Indemnity Co., 815 F.2d 286 (3d Cir.1987), dealing with our jurisdiction over an appeal of an attorney's fees award before the district court had determined its amount. The parties have filed these briefs agreeing that we have jurisdiction over this entire appeal, and we agree with them that we have jurisdiction but only to a limited extent.
26
Surprisingly, Beckwith was our first case addressing the question of whether a district court order awarding, but not yet quantifying, attorney's fees is a final order from which an appeal may be taken when the fee award results from the underlying cause of action, rather than as a collateral matter. In Beckwith, the plaintiff stated a claim for breach of contract against the defendant insurer based on the insurer's decision to withdraw its defense of the plaintiff in an underlying action. After finding in the plaintiff's favor, the district court entered judgment on his behalf for, among other things, his attorney's fees and costs in the underlying action. The district court similarly awarded the plaintiff attorney's fees and costs for the breach of contract litigation against the insurer, i.e., in the case before it. Notably, however, the district court did not quantify either of these awards.
27
On the insurer's subsequent appeal, after outlining the relevant case law, we ruled that "when the award of attorney's fees arises out of and is part of the claimant's cause of action and is not separately authorized by a statute providing for such an award, an order does not become final until the attorney's fees are quantified." Id. at 290. We further observed that, although not at issue, to the extent the district court similarly had not quantified the attorney's fee award for the breach of contract litigation against the insurer, it "should be regarded no differently than the award of attorney's fees in the [underlying] litigation inasmuch as both were incurred as a direct consequence and result of [defendant's] breach of the insurance contract, and both constitute a part of the damages due [plaintiff]." Id. at 292. Thus, we dismissed the insurer's appeal in Beckwith.
28
But the Supreme Court's decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), promptly cast doubt on the latter observation. In Budinich, the court entered judgment for the plaintiff in an employment compensation action on a jury verdict for an amount considerably less than he had sought. The plaintiff filed timely new trial motions as well as a motion for attorney's fees. The district court subsequently denied the new trial motions on May 14, 1984, but found that the plaintiff was entitled to attorney's fees, though it did not then fix the fee award. Subsequently, however, the district court entered a final order on August 1, 1984, determining the amount of those fees. Thereafter, the plaintiff appealed from the district court's post-trial orders in their entirety. Although affirming the attorney's fees award, the Court of Appeals for the Tenth Circuit granted defendant's motion to dismiss the appeal as to all other issues on the ground that the judgment was final and immediately appealable upon entry of the May 14, 1984 order, and the plaintiff's appeal was not timely because the plaintiff did not file it within 30 days of that order.
29
In ensuing proceedings, the Supreme Court affirmed, finding that "[a]s a general matter, at least, we think it indisputable that a claim for attorney's fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action."14 Budinich, 486 U.S. at 200, 108 S.Ct. at 1721. The Court added, "[c]ourts and litigants are best served by the bright-line rule, which accords with traditional understanding, that a decision on the merits is a `final decision' for purposes of § 1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case." Id. at 202-03, 108 S.Ct. at 1722.
30
Since the Supreme Court's ruling in Budinich, we have on several occasions applied its rationale, starting with Frangos v. Doering Equipment Corp., 860 F.2d 70 (3d Cir.1988). In Frangos, defendants Doering Equipment ("Doering") and Logan Equipment ("Logan") settled a suit filed by a worker who had been injured in a fall from a manlift. Thereafter, Doering and Logan pursued a claim for indemnity or contribution against Parker-Hannifin Corporation ("Parker"), a named defendant in the underlying suit. Although the district court granted Parker's motion for a directed verdict as to some of Doering's and Logan's claims at the close of their case, Doering and Logan ultimately obtained a jury verdict in the amount of $52,000 on the remaining claims. Parker subsequently filed a motion for a judgment notwithstanding the verdict and for a new trial while, still later, Doering and Logan filed a petition for attorney's fees. The court dismissed Parker's post-trial motions, but concluded Doering and Logan were entitled to attorney's fees, albeit to the extent they related only to their defense in the underlying action. Parker then appealed.
31
Significantly, at the time of the appeal the district court had not yet determined the fees to which Doering and Logan were entitled. Although Doering and Logan argued that the court's "failure to quantify attorneys' fees render[ed] all aspects of the case unappealable," Frangos, 860 F.2d at 72, we disagreed, citing Budinich for the proposition that "a decision on the merits is a `final decision' as a matter of federal law under § 1291 [even] when the recoverability or amount of attorney's fees for the litigation remains to be determined." Id. (internal quotations and citation omitted). Accordingly, we found that although that portion of the appeal dealing with Doering's and Logan's attorney's fees must be dismissed, we nonetheless had jurisdiction over the appeal from the underlying judgment. Id.
32
The next case in which we dealt with a similar appealability issue at length was Vargas v. Hudson County Board of Elections, 949 F.2d 665 (3d Cir.1991). In Vargas, a plaintiff class filed a complaint against Gerald McCann, a candidate for mayor, and members of his campaign staff (the "McCann defendants"), among others, alleging that the McCann defendants had engaged in a conspiracy to prevent them from voting in a mayoral election. After the National Union Fire Insurance Company ("National Union") refused to defend or indemnify the McCann defendants, they joined National Union as a third-party defendant to the litigation. The district court subsequently granted summary judgment against National Union, declaring it owed coverage to the McCann defendants. Soon thereafter, the McCann defendants settled the class action. On April 24, 1990, the district court, finding the settlement to be in good faith, directed National Union to indemnify the McCann defendants for both the settlement amounts and "any attorneys' fees award which may be made in favor of [class] plaintiffs and/or plaintiffs' attorneys against the [McCann] defendants." Vargas, 949 F.2d at 667 (internal quotations omitted). Additionally, the district court ordered National Union to reimburse the McCann defendants for their own attorney's fees. Finally, on December 13, 1990, the district court entered an attorney's fees and expense award in favor of the plaintiff class (i.e., fixed the attorney's fees and expenses due the class plaintiffs).
33
Approximately one month later, on January 11, 1991, National Union filed its notice of appeal, which the McCann defendants and class plaintiffs moved to dismiss on timeliness grounds as to all orders other than that of December 13, 1990. We denied the motion as we concluded that there had not been an appealable order until the district court quantified the amount of attorney's fees which the McCann defendants owed the plaintiffs (and thus for which National Union was liable). In reaching the result we explained:
34
The monetary claim presented by the McCann defendants in this case against National Union consisted of two elements-the damages that they were required to pay the class plaintiffs and the attorneys' fees that the McCann defendants were required to pay the class plaintiffs. The McCann defendants['] total obligation to the class plaintiffs, and hence their total claim for damages against National Union, was not determined until the amount of the class action counsel fees had been set.
35
Id. at 670. Additionally, we noted it was "critical to recognize that the relevant claim for fees here was not that made by the McCann defendants pursuant to state statute to recover for representation in this case against National Union" which was, by contrast, "clearly" a Budinich claim. Id. at 669 ("Essentially, Budinich concluded that an award of counsel fees to the prevailing party is not a part of the judgment, but rather is due because of the judgment.").
36
Following Vargas, we again addressed the attorney's fees finality issue in Ragan v. Tri-County Excavating, Inc., 62 F.3d 501 (3d Cir.1995). There, defendant-appellant Hartford Fire Insurance Co. ("Hartford") served as the surety on a labor and material payment bond purchased by Mele Construction Co., Inc. ("Mele"). Hartford's bond required prospective claimants not in "direct contract" with Mele to give written notice of their claims to Hartford within 90 days after they ceased work. Plaintiffs-appellees, the International Union of Operating Engineers, Local 542 and Michael J. Ragan, its administrator of "fringe benefit" funds (together, "Local 542"), had a collective bargaining agreement with and did work for Tri-County Excavating, Inc. ("Tri-County"), a corporation that three daughters of John Mele, president of Mele, owned, on a job for Mele. Hartford subsequently rejected a claim for fringe benefits Local 542 made 120 days after it ceased work because Local 542 was not in "direct contract" with Mele, and thus Hartford's bond required Local 542 to give notice of its claim within 90 days of the last labor performed.
37
Local 542 then sued Tri-County and Hartford. Following a bench trial, the district court rejected Hartford's untimeliness argument, and entered judgment in favor of Local 542. In so doing, the district court awarded Local 542 its reasonable attorney's fees, although it did not quantify their amount until nearly a year later. On Hartford's subsequent appeal, taken before the district court quantified the fees, when addressing the basis for our jurisdiction, we noted that the district court premised its fee award on a provision in the agreement between Local 542 and Tri-County. Accordingly, we ruled, "[b]ecause the attorney fees awarded in this case were part of the contractual damages sought by Local 542, the district court's delay in quantifying the amount of such fees until February 13, 1995 rendered the earlier order non-final for purposes of appeal."15 Ragan, 62 F.3d at 505.
38
Most recently we attempted to reconcile Budinich and Ragan in Gleason v. Norwest Mortgage, Inc., 243 F.3d 130 (3d Cir. 2001). In Gleason, the litigants stipulated to a final judgment order under Federal Rule of Civil Procedure 54(b), where the district court stated that all claims were resolved through judgment, settlement, or mootness, except that each party's claim for contractual attorney's fees and costs remained outstanding. Citing to Budinich, we first acknowledged that "[w]hen an outstanding claim for attorneys' fees is by a statutory prevailing party, the unresolved issue of those fees does not prevent judgment on the merits from being final." Gleason, 243 F.3d at 137. Citing to Ragan, however, we added that "when attorneys' fees are part of the contractual damages at issue on the merits, a District Court's order delaying quantifying the amount of such fees is non-final for purposes of appeal." Id. Noting the claim for attorney's fees in Gleason was predicated not on a statutory prevailing party provision but on a contractual obligation to pay attorney's fees "to the prevailing party in whose favor judgment is entered," we found "[f]or all practical purposes" there was "no difference under these circumstances, for § 1291 finality purposes, between payment of attorneys' fees to a prevailing party under statute and payment of attorneys' fees under the contract to a `prevailing party.'" Id. at 137-38. Accordingly, we concluded, given the attorney's fees provided for were "not an integral part of the contractual relief sought[,] the issue of which party prevailed in the litigation on the merits is collateral to the substantive issues on appeal and does not prevent judgment on the merits from being final." Id. at 138.
39
Applying the foregoing precedents to this appeal, we conclude that we have jurisdiction over the appeal insofar as it is from the order providing for defendants' indemnification for settlement costs and attorney's fees incurred in the Armor Shield litigation, sums that the district court has quantified. It is true that, like the plaintiffs in Ragan, defendants included their request for attorney's fees with respect to this indemnification litigation in their respective answers to ASTM's complaint, citing ASTM Bylaw No. 10.1 in support of their request. Notably, however, inasmuch as this request was expressly "not an integral part of the contractual relief sought, the issue of which party prevailed in the litigation on the merits is collateral to the substantive issues on appeal and does not prevent judgment on the merits from being final." Gleason, 243 F.3d at 138. Put another way, the substantive issues on appeal plainly center on defendants' request for indemnification in the Armor Shield litigation, rather than on their request for attorney's fees with respect to enforcing ASTM's indemnification obligations in this litigation as it pertains to that litigation. See Vargas, 949 F.2d at 670 (finding "[t]he McCann defendants['] total obligation to the class plaintiffs, and hence their total claim for damages against National Union, was not determined until the amount of the class action counsel fees had been set.").
40
Accordingly, we have jurisdiction over this appeal to the extent that it relates to defendants' indemnification request for settlement costs and attorney's fees in the Armor Shield litigation, but, for the reasons outlined above and for the reasons we discuss in section IVG, infra, relating to pendent jurisdiction, we do not have jurisdiction over this appeal to the extent that it relates to the unquantified attorney's fees in this litigation. Therefore, we will entertain the appeal on the merits with respect to defendants' indemnification request for settlement costs and attorney's fees in the Armor Shield litigation, but will dismiss the appeal to the extent that it relates to attorney's fees and costs in this litigation.
B. Business judgment rule
41
We now reach the merits of this appeal and first consider application of the business judgment rule. In this regard, ASTM claims that the district court incorrectly rejected its argument that the Board's decision not to indemnify Baach and Rogers was protected under that rule as adopted by the Supreme Court of Pennsylvania.
42
Even though the parties have briefed and argued this case on their understanding that the business judgment rule could be a defense here to the counterclaim for indemnification, we question whether this case implicates the business judgment rule in the first instance. ASTM, as it had every right to do, initiated this litigation as a declaratory judgment action and thereby reversed the usual order of the parties when there is a dispute over the payment of money, for in such a case the claimant usually is the plaintiff. But the unusual procedure posture of this case should not change the governing law. Thus, we believe that essentially, particularly in the light of defendants' counterclaim, this case involves an action by the defendants to recover money from the plaintiff. Therefore, the defendants should be regarded as being in the same position as an ordinary trade creditor seeking to recover on a contract for the delivery of goods. In such a case, as, for example, a case in which the purchaser-defendant has refused to pay the creditor-plaintiff for goods the latter delivered on grounds that they were defective, the defendant surely could not invoke the business judgment rule in opposition to the creditor's claim and assert that its good faith conclusion that the delivered goods were defective should protect it from liability. Rather, if the suitability of the goods is in dispute, the court entertaining the case would determine whether the goods complied with the applicable specifications in a process that would not implicate the business judgment rule.
43
In this regard, we point out that ASTM Bylaw No. 10. 1, which is the foundation for defendants' claim, is mandatory and provides that, when the bylaw is implicated, the protected person "shall be indemnified by" ASTM. While it is true that the bylaw three times uses the word "reasonably" or "reasonable," it does so when referring to amounts an indemnitee expended, to the indemnitee's belief that he was acting in the best interests of ASTM, and to his belief that his conduct was lawful. Thus, the bylaw does not suggest that merely because ASTM "reasonably" challenges the reasonableness of an indemnitee's actions or expenditures, the business judgment rule will protect it from liability.
44
In making our observation that the parties may have taken this litigation off track by focusing on the business judgment rule, we reiterate that, in reality, ASTM, i.e., the corporate-indemnitor, should be regarded as the actual defendant in this case because it is ASTM against whom a monetary judgment has been sought. Accordingly, after we reverse the order of the parties, it becomes apparent that we are not dealing with the usual situation in which officers or directors seek to insulate themselves from liability from a claim or from a direction by a court by invoking the business judgment rule. Thus, this litigation differs from that in Cuker v. Mikalauskas, 547 Pa. 600, 692 A.2d 1042 (1997), the case in which the Pennsylvania Supreme Court first explicitly recognized the business judgment rule. There, the court indicated that "[t]he issue is whether the business judgment rule permits the board of directors of a Pennsylvania corporation to terminate derivative lawsuits brought by minority shareholders." Id. at 1045. The court went on to say that "[t]he business judgment rule should insulate officers and directors from judicial intervention in the absence of fraud or self-dealing," id. at 1048, and then explained when they would be insulated.
45
Finally, we point out that the district court initiated the discussion portion of its opinion by indicating that "[g]enerally speaking, under the law of Pennsylvania, construction of an indemnity contract is a question of law for the court to decide . . . ." ASTM, 2005 WL 1941653, at *7. It went on to hold that Rogers and Baach satisfied the indemnification criteria. Only then did it point out that "ASTM argues that even if it may have erred in denying the defendants' indemnification claims, its Board of Directors' decision should be upheld as it is protected from Court scrutiny by Pennsylvania's Business Judgment Rule." Id. at * 11. But we are at a loss to see why, if ASTM erred, the business judgment rule should protect it, the corporate-indemnitor, as distinguished from its officers and directors who are not parties to this litigation, from liability. Nevertheless, notwithstanding our reservations regarding the applicability of the business judgment rule in this case, we will decide the case as the parties treated it in the district court and have treated it here, i.e., the application of the business judgment rule is an issue in this case and the rule could be a defense to defendants' indemnification claims.
46
As we have indicated, Pennsylvania first explicitly recognized the business judgment rule in Cuker v. Mikalauskas, 547 Pa. 600, 692 A.2d 1042. The Cuker court indicated that the business judgment rule is a rule of law that "insulates an officer or director of a corporation from liability for a business decision made in good faith if he is not interested in the subject of the business judgment, is informed with respect to the subject of the business judgment to the extent he reasonably believes to be appropriate under the circumstances, and rationally believes that the business judgment is in the best interests of the corporation." Id. at 1045. As such, the rule "reflects a policy of judicial noninterference with business decisions of corporate managers, presuming that they pursue the best interests of their corporations, insulating such managers from second-guessing or liability for their business decisions in the absence of fraud or self-dealing or other misconduct or malfeasance." Id. at 1046. In determining whether a business decision should be insulated from review, the court considers the following factors:
47
whether the board or its special litigation committee was disinterested, whether it was assisted by counsel, whether it prepared a written report, whether it was independent, whether it conducted an adequate investigation, and whether it rationally believed its decision was in the best interests of the corporation (i.e., acted in good faith). If all of these criteria are satisfied, the business judgment rule applies and the court should dismiss the action.
48
Id. at 1048. Thus, where the business judgment rule applies, it prohibits the court from examining the merits of the underlying business decision.
49
Here, the district court's determination that ASTM's decision to deny Baach's and Rogers' requests for indemnification did not merit protection under the business judgment rule hinged on its finding as to the adequacy of ASTM's investigation. On this point, the district court explained:
50
[A]s all of the various members of the Board called as witnesses in this case, and as ASTM's former General Counsel and President both testified, neither they nor anyone else acting on ASTM's behalf conducted any investigation whatsoever into the veracity of the allegations against Defendants. Rather, the only evidence which they had before them at the time they made their decision to not indemnify was the Armor Shield complaint. Although Defendants repeatedly offered to provide whatever evidence the ASTM Board deemed necessary and repeatedly sought to be heard by the full Board on the issue of indemnification, ASTM never responded to any of the defendants' offers or requests. It is the opinion of this Court that this does not constitute reasonable diligence on the part of the ASTM Board.
51
ASTM, 2005 WL 1941653, at * 11.
52
ASTM protests that "the information before the Board (which included the advice of ASTM's general counsel, outside counsel and an ASTM officer)" provided a sufficient basis for the Board's decision and the district court unfairly faulted the Board "for not conducting a detailed investigation, which apparently would have required that the Board personally review all material relating to the litigation and hold a hearing during a Board meeting." Appellant's br. at 25. To be sure, "[r]eliance on reports, representations, statements, and opinions prepared by officers and employees of the corporation and by outside professionals and experts will often be necessary and will, in many situations, satisfy the informational requirement . . . ." 1 American Law Institute ("ALI") Principles of Corporate Governance: Analysis and Recommendations, § 4.01(c), comment e (1994).16 Here, however, ASTM refused to reveal the content of those "reports, representations, statements, and opinions" prepared by counsel for purposes of its discussions with the Executive Committee and Board regarding Baach's and Rogers' respective requests for indemnification. Indeed, it was for this reason that the district court admonished an ASTM witness at trial who sought to discuss counsel's role in the discussions, stating "Don't use advice of counsel as a defense because it's not a defense here." J.A. at 215. Relatedly, and not surprisingly, defendants argue that ASTM "cannot now rely upon such advice in order to claim that the Board conducted a reasonable investigation." Appellees' br. at 31.
53
Unfortunately, the cases cited by the parties do not provide much illumination as to whether the Pennsylvania courts would require a nonprofit corporation in the position of ASTM to disclose the advice that counsel gave its members to receive protection under the business judgment rule. But even assuming the validity of ASTM's position that it did not have to disclose that information, several factors serve to bolster the district court's finding that application of the business judgment rule does not insulate ASTM from liability in this case. First, it is undisputed that no one at ASTM consented to speak with either Baach or Rogers regarding their indemnification requests, notwithstanding their repeated offers to engage in such conversations. Second, it is similarly undisputed that no one at ASTM (and no one acting on its behalf) conducted any investigation into the veracity of the allegations levied in the Armor Shield complaint. To this end, it again bears noting that ASTM itself approved both the process pursuant to which the ES-40 and G-158 standards were promulgated as well as the substance of the standards. Additionally, ASTM never restricted or suspended either Baach or Rogers from participating in any relevant standard-setting activities. We believe that these circumstances support a finding that ASTM failed to act in good faith, see Cuker, 692 A.2d at 1048, as well as the district court's conclusion that ASTM failed to exercise "reasonable diligence in deciding defendants should not be indemnified."17 ASTM, 2005 WL 1941653, at * 11. Accordingly, we decline to apply the business judgment rule so as to reverse the district court's indemnification order challenged on this appeal.18
C. Indemnification for intentional acts
54
ASTM next argues that inasmuch as Armor Shield sued Baach and Rogers for alleged violations of Sections 1 and 2 of the Sherman Act and analogous state antitrust statutes, violations of the Lanham Act, and unfair competition, the district court's holding violates the "fundamental public policy of Pennsylvania" that parties may not contract away liability resulting from their intentional acts. In sum, ASTM essentially contends that it "lacked the power" to indemnify defendants "even if [it] wanted to." Appellant's br. at 35. Defendants respond that there is no evidence that either Rogers or Baach engaged in any intentional wrongdoing and thus ASTM's argument is without merit. Defendants are correct.
55
Preliminarily, however, before reaching the substance of the intentional acts issue, we address defendants' contention that ASTM waived this argument by failing to assert it in the district court. See Ark-Tenn Distrib. Corp. v. Breidt, 209 F.2d 359, 360-61 (3d Cir.1954) (noting when an issue is "raised by the pleadings, but not pressed at trial, in the absence of unusual circumstances, the ends of justice requiring it, [it] will not serve as a basis for the appellate tribunal to reverse the trial court"). On this procedural point, defendants are mistaken. Specifically, in its proposed Post-Trial Findings of Fact and Conclusions of Law filed in the district court, ASTM pressed the very same argument it asserts here regarding indemnification for intentional acts. Accordingly, ASTM did not waive its intentional acts argument.
56
Turning to the merits, we reject ASTM's position. According to ASTM, "[t]here are numerous cases in Pennsylvania and federal courts sitting in Pennsylvania holding that public policy precludes indemnification clauses from covering intentional or wrongful conduct of the indemnitee." Appellant's br. at 34 (quoting Mahon v. City of Bethlehem, 898 F.Supp. 310, 314 (E.D.Pa.1995)). But the majority of the cases ASTM cites discuss indemnification in the context of insurance law, as distinguished from the law relating to nonprofit corporations. See, e.g., Brown v. Creative Collections, Inc., 2002 WL 32345937 (E.D.Pa. June 10, 2002); State Farm Fire & Cas. Co. v. Dalrymple, 153 F.Supp.2d 624 (E.D.Pa.2001); Allstate Ins. Co. v. Fischer, 1998 WL 205693 (E.D.Pa. Apr.28, 1998). In this sense, they are all arguably inapposite.19 Further, even assuming these cases are on point, the policy consideration driving their respective holdings— namely, that individuals not receive indemnification "against the consequences of [their] willful, criminal [i.e., intentional]" acts, see Esmond v. Liscio, 209 Pa.Super. 200; 224 A.2d 793, 798 (1966)—is captured fully by that section of Pennsylvania's nonprofit corporations law (as echoed by ASTM Bylaw No. 10) prohibiting indemnification unless a claimant "acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation." See 15 Pa. Cons.Stat. Ann. § 5741; see also appellant's br. at 35 (noting that Pennsylvania's Nonprofit Corporations Law and ASTM Bylaw No. 10.1 are consistent with "Pennsylvania's strong policy prohibiting indemnification for intentional acts," and section 5741 "prohibits payment of indemnification benefits to individuals who did not act in `good faith'").
57
In this case, by contrast, the settlement agreement reached in the Armor Shield litigation expressly provides it "does not constitute an admission of liability or responsibility . . . or an admission of the truth or validity of any allegations or claims made by any party in the Lawsuit, it being agreed that the aforesaid specifically deny the truth and validity of all allegations or claims made against them."20 J.A. at 1460-61; see also 15 Pa. Cons.Stat. § 5741 (stating "[t]he termination of any action or proceeding by . . . settlement . . . shall not of itself create a presumption that the person did not act in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation . . . ."). Further, the district court expressly found that:
58
While it is true that the Armor Shield complaint also accused the defendants of willful misconduct, there is simply no evidence that those accusations were true or that the defendants acted in any manner other than in good faith and in a manner which they reasonably believed to be in the best interests of the Society. ASTM, through its Committee on Standards and its Committee on Technical Committee Operations, essentially made just such a finding when it heard and subsequently denied Derek Sharp's appeal of the standard in September, 1998.
59
ASTM, 2005 WL 1941653, at * 10. Given the above, we cannot say the district court's holding violates Pennsylvania's policy that parties not be allowed to contract away liability resulting from their intentional acts.
60
We also point out that if we accepted ASTM's argument, we would establish an unfortunate precedent discouraging, rather than encouraging the settlement of litigation. It is, of course, fundamental that courts should encourage parties to litigation to settle their cases. Bell Atl. Corp. v. Bolger, 2 F.3d 1304, 1314 n. 16 (3d Cir. 1993); Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454, 461 (1992). But the practical consequence of ASTM's argument, if accepted, would be to make a defendant with an indemnification claim reluctant to settle a case against him if the complaint in that case alleged that he had engaged in intentional wrongful conduct because, by doing so, he would be waiving his indemnification rights. While we do not suggest that a defendant necessarily may ensure that he will have an enforceable indemnification claim by settling an action against him charging him with intentional misconduct, inasmuch as the Armor Shield litigation did not establish that defendants engaged in such misconduct, if ASTM wanted to defeat their claim for indemnification, it should have presented evidence that they had done so. Yet it never did.
61
On this point, we reiterate that ASTM Bylaw No. 10.1 provides that the scope of ASTM's obligation for indemnification includes "amounts paid in settlement," and we add that it does so without any exclusion for settlement of claims asserting that the indemnitees intentionally acted in a wrongful way. Moreover, in authorizing a nonprofit corporation to indemnify certain persons for their expenses, 15 Pa. Cons. Stat. Ann. § 5741 includes "amounts paid in settlement," without exclusion of payment for expenses in litigation charging the indemnitee with intentional wrongful acts. Thus, ASTM surely is wrong when it claims that Pennsylvania law precludes it from indemnifying the defendants for their costs and expenses in the Armor Shield litigation.
62
D. Whether defendants were sued "by reason of" their service on ASTM committees
63
In addition to its business judgment and intentional acts arguments, ASTM contends that inasmuch as indemnification is available only to those persons who were or are parties to any threatened, pending, or completed litigation by reason of their service on an ASTM committee, the district court erred in summarily determining the "by reason of" condition in Bylaw No. 10.1 was satisfied. We reject this contention as we, like the district court, find that the evidence establishes that the "by reason of" condition was satisfied.
64
In support of its argument, ASTM asserts that under either a proximate or "but for" causation standard, the district court "was required to conclude that but for the participation of Rogers and Baach on ASTM committees, Armor Shield and its co-plaintiffs lacked viable grounds for a lawsuit against Rogers and Baach." Appellant's br. at 43. We believe that ASTM overstates defendants' burden here. Rather, we are satisfied that the "by reason of" language on which ASTM relies requires nothing more than there be a showing of a nexus between an indemnitee's activity and the matter for which indemnification is being sought. See Witco Corp. v. Beekhuis, 38 F.3d 682, 692-93 (3d Cir.1994) (applying Delaware law); In re Miller, 290 F.3d 263, 267 (5th Cir.2002) (same). But even if we accepted ASTM's formulation of the law regarding the nexus required, the district court made the finding that ASTM says is required. Specifically, the court concluded:
65
Dr. Rogers and Mr. Baach were clearly sued by Armor Shield and its co-plaintiffs solely because of their involvement in the ASTM standard setting process and their service on the E-50 and G-01 Committees. To be sure, the gravamen of Armor Shield's complaint is that by their service on the ASTM committees, the defendants manipulated the development and promulgation of the ES-40 and G-158 standards to violate Sections 1 and 2 of the Sherman Act, Section 43 of the Lanham Act and various other provisions of Ohio state law.
66
ASTM, 2005 WL 1941653, at *10.
67
We recognize that, as ASTM contends, some of the allegations in the Armor Shield complaint "describe conduct that simply has nothing to do with ASTM's standard-setting process." Appellant's br. at 43. But a plain reading of the factual allegations contained in the complaint evidences that Armor Shield predicated most of its claims on the promulgation of the ES-40 and G-158 standards in the absence of which Armor Shield would not have initiated its litigation. In this regard, it bears noting that Armor Shield did not initiate its litigation until after ASTM adopted the ES-40 and G-158 standards and denied Sharp's appeals attempting to preclude their adoption and publication. This order of events hardly is immaterial.
68
ASTM asserts as well that the district court "committed a second legal error by presuming . . . that Rogers and Baach satisfied the `by reason of' requirement where the purpose of their unlawful actions, as alleged in the Armor Shield Complaint, was not to benefit the indemnitor, ASTM, but rather to advance the goals of their private employers at ASTM's expense."21 Appellant's br. at 45. Defendants respond that the contention is devoid of evidentiary support. Again, we hold defendants are correct. Initially, as discussed supra, there is no per se impropriety in an ASTM member having a financial interest in the standard-setting activities he is engaged in on behalf of ASTM. Moreover, any concerns ASTM might have had along the lines it asserts on this point were no doubt addressed by the COS's finding that the G-01 committee did not violate ASTM's condition of balance and had followed ASTM's procedural requirements as well as its criteria for due process—a decision the Board subsequently affirmed. Finally, and most notably, there is simply no evidence that Baach's or Rogers' conduct was detrimental to ASTM. Indeed, so far as we are aware, the permanent standard approved in ASTM's layered process remains in effect today. Certainly, at least, ASTM does not claim that it rescinded the standard by reason of the allegations in the Armor Shield litigation.
69
For the foregoing reasons, we reject ASTM's request that we reverse the district court's judgment on the basis that the "by reason of" clause precluded indemnification here.
70
E. Reasonableness of Armor Shield litigation settlement
71
ASTM argues next that "[b]ecause the underlying Armor Shield litigation was settled, Rogers and Baach had to show that the settlement was reasonable in order to be entitled to indemnification." Appellant's br. at 47; see also ASTM, 2005 WL 1941653, at *4 (noting indemnification limited to "`expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by [claimant]'") (quoting ASTM Bylaw No. 10.1). ASTM contends that because the district court did not make such a finding, we should reverse its order granting the indemnification award. ASTM is mistaken.
72
It is true that in Pennsylvania, "[w]here a claim against an indemnitee has been settled, the burden falls on the indemnitee to prove that the settlement was reasonable." County of Delaware v. J.P. Mascaro & Sons, Inc., 830 A.2d 587, 593 (2003). Here, Baach and Rogers submitted expert testimony on the reasonableness of the attorney's fees incurred as well as on the settlement amount. On the other hand, ASTM does not appear to have submitted any expert testimony—and indeed, cites to none in the three pages devoted to its reasonableness argument in its briefs before this court—regarding the unreasonableness of the settlement amount. Therefore it is not surprising that in its order granting defendants a declaratory judgment in their favor, the district court made the following finding of fact:
73
The hourly rates charged by the defendants' attorneys and other costs which the defendants incurred in defending and settling the Armor Shield litigation were fair and reasonable, particularly in light of the complexity of the case, the amount sought in the plaintiff's complaint, the inherent risks and overall unpredictability of litigation, and the Cleveland, Ohio marketplace.
74
ASTM, 2005 WL 1941653, at *7. Even though the district court did not state expressly that the settlement itself was reasonable, given its ruling in defendants' favor, it appears implicitly to have reached just such a conclusion based on the evidence before it.22 We thus decline ASTM's request to reverse the district court's judgment on these grounds as well.
F. Attribution of settlement amount
75
ASTM contends that the district court "erred when it calculated the amount of the settlement for which ASTM was required to indemnify Rogers and Baach" insofar as it "treated the entire amount of the settlement and attorneys' fees as if it were attributable to Rogers' and Baach's service on ASTM committees." Appellant's br. at 48. Specifically, ASTM says that, "the Armor Shield Complaint contains numerous allegations relating to conduct by individuals and corporations named as defendants, other than ASTM, conduct that is completely unrelated to Rogers' and Baach's service on ASTM committees" and "Corrpro's Director's and Officer's liability insurer also concluded that the thrust of the Armor Shield Complaint was `necessarily asserted principally against Corrpro.'" Id. (quoting J.A. at 858). Again, ASTM is mistaken.
76
Analogizing this case to those in an insurance context, ASTM claims, appellant's br. at 49 (quoting Lang Tendons, Inc. v. N. Ins. Co. of N.Y., 2001 WL 228920, at * 11 (E.D.Pa. Mar.7, 2001)), "where there has been no adjudication of liability because the insured has settled the claims against it, and no apportionment of the settlement amount among the different counts of the underlying complaint, the court must determine whether an equitable apportionment between covered and uncovered claims must be made." Here, for reasons we set forth above, the district court found that ASTM Bylaw No. 10.1 covered all the claims asserted in the Armor Shield complaint. In doing so the district court indicated that, "[a]lthough WRA and Corrpro paid the entirety of these amounts on behalf of both themselves and Baach and Rogers individually, the settlement agreement did not distinguish what portion(s) of the settlement were attributable to the actions of the individual defendants and which were attributable to the actions of the corporations." ASTM, 2005 WL 1941653, at * 12.
77
The district court went on to state, however, that "nothing through [its] scrutiny of the Armor Shield pleadings . . . suggests that the corporate entities were sued because of the activities of any individuals other than Baach or Rogers." Id.; see also appellees' br. at 50 (asserting the "undisputed testimony at the trial" was that Baach's defense costs were inseparable from those of Corrpro while Rogers' defense costs were inseparable from those of WRA and Baach and Rogers were the only alleged wrongdoers identified in the Armor Shield complaint acting on behalf of Corrpro and WRA respectively). Additionally, it again bears noting that the promulgation of the ES-40 and G-158 standards was the trigger for the Armor Shield litigation. Thus, because the district court has made the determination ASTM says is necessary, we reject ASTM's request that we reverse the district court's order on attribution grounds.
78
G. Award of attorney's fees in present litigation
79
ASTM argues finally that the district court erred in holding Baach and Rogers were entitled "to recoup the legal fees that they incurred in defending this declaratory judgment action regarding their right to indemnification." Appellant's br. at 57. Specifically, ASTM says that the district court's holding "confuses an indemnitee's ability to recover fees associated with an underlying liability litigation with its ability to recover fees associated with indemnification litigation." Id. Defendants respond that both ASTM Bylaw No. 10.1 and general principles of equity demand that Baach and Rogers be allowed to "recoup" legal fees incurred in defending this declaratory judgment action regarding their right to indemnification. The merits of the parties' respective arguments aside, we do not have jurisdiction to resolve the issue at this time and thus will dismiss the appeal to the extent it challenges the award of attorney's fees in this case.
80
As discussed above, our jurisdiction over ASTM's appeal relating to defendants' right to indemnification for their costs and expenses in the Armor Shield litigation is unaffected by the district court's failure to quantify its award of attorney's fees in this action, given the Supreme Court's holding that "an unresolved issue of attorney's fees for the litigation at hand" does not prevent judgment on the merits from being final. Budinich, 486 U.S. at 202, 108 S.Ct. at 1721. Implicit in this finding, however, is the necessary corollary that we do not have jurisdiction to determine those issues pertaining to the "unresolved issue of attorney's fees" itself. See Frangos, 860 F.2d at 72 (dismissing that portion of the appeal dealing with attorney's fees attributable to the case where such fees had not yet been quantified).
81
ASTM attempts an end-run around this seemingly inescapable point by citing to the doctrine of pendent appellate jurisdiction. Although admitting "[t]he relatively sparse case law . . . suggests the history of pendent appellate jurisdiction is more murky than [clear]," ASTM nonetheless urges that "[w]hatever the limits of pendent appellate jurisdiction may be, ASTM believes the Court would have the power to vacate the district court's ruling that Appellees are entitled to undetermined fees in this case, if it separately reaches a decision that may undermine that ruling, i.e., if it concludes Appellees were not entitled to indemnification for the Armor Shield litigation." Appellant's letter br. at 7. We disagree.
82
To start with, of course, we are not making the determination ASTM asserts that would empower us to vacate the attorney's fees ruling with respect to this case. In any event, even setting that point aside, in its "broadest formulation," the doctrine of pendent appellate jurisdiction merely "allows an appellate court in its discretion to exercise jurisdiction over issues that are not independently appealable but that are intertwined with issues over which the appellate court properly and independently exercises its jurisdiction." In re Tutu Wells Contamination Litig., 120 F.3d 368, 382 (3d Cir.1997), overruled on other grounds by Comuso v. Nat'l R.R. Passenger Corp., 267 F.3d 331, 338-39 (3d Cir.2001). To this end, we have held "that the discretionary exercise of pendent appellate jurisdiction is appropriate when the issue over which we have jurisdiction cannot be resolved without reference to the otherwise nonappealable issue." Id. (citing Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir.1982)); see also Nat'l Union Fire Ins. Co. v. City Sav., F.S.B., 28 F.3d 376, 382 (3d Cir.1994) ("We have stated that pendent appellate jurisdiction over an otherwise unappealable order is available only to the extent necessary to ensure meaningful review of an appealable order.") (internal quotations and citation omitted). We are satisfied that the rigorous standard for invoking pendent appellate jurisdiction has not been met here. As the above discussion illustrates, ASTM's appeal regarding defendants' indemnification requests (i.e., "the issue over which we have jurisdiction") plainly can be resolved without reference to whether defendants are entitled to attorney's fees in this litigation (i.e., the "otherwise unappealable order"). Indeed, that is exactly what we have done. Moreover, it is difficult to see why, if we exercised pendent jurisdiction here, such jurisdiction would not always be available in standard two-part litigation such as that involving a third-party claim against an insured followed by the insured's claim against his disclaiming insurance carrier. Overall, we think that it is quite clear that we do not have pendent appellate jurisdiction in this case.
V. CONCLUSION
83
For the legal and factual reasons that we have set forth, we will affirm the district court's order entered August 12, 2005 order with respect to settlement costs and attorney's fees in the Armor Shield litigation, dismiss the appeal to the extent that it relates to attorney's fees and costs in this litigation, and remand the case for further proceedings as they pertain to defendants' entitlement to attorney's fees in this litigation.
Notes:
1
Specifically, 15 Pa. Cons.Stat. Ann. § 5741 provides that:
Unless otherwise restricted in its bylaws, a nonprofit corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that he is or was a representative of the corporation . . . against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation. . . . The termination of any action or proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal proceeding, had reasonable cause to believe that his conduct was unlawful.
2
In its brief ASTM explains that cathodic protection is:
a process through which a low-voltage electrical charge is administered into the soils surrounding the UST. Metal rods are driven into the soil several feet from the UST, and wires are installed to connect the rods to the UST, establishing an electrical circuit. The flow of electricity through this circuit retards corrosion of the metallic UST. Because cathodic protection only slows future corrosion, and does not repair corrosion that has already occurred, it is not an appropriate upgrade for tanks that have already experienced threshold levels of corrosion.
Appellant's br. at 6 n. 1 (citing J.A. at 949-50); see also appellees' br. at 5 n. 1.
3
As the district court explained:
[A] standard first begins to be developed through the formation of a task force or group, which is a small group of members who work to develop an initial consensus and first draft of something and then move it forward. . . . After the completion of the task group's work, the proposed standard will move to the subcommittee level, where it is first officially balloted. There is a percentage affirmative requirement and any negative votes that are submitted must be considered by the originating subcommittee. From there, the proposed standard moves to the main committee, which can vary in size from 50 to over 1,000 members with every member receiving a ballot. There are percentage return requirements, i.e., a certain percentage of committee members must cast their ballots and a certain percentage must vote affirmatively. From there, all 22,000 members of ASTM working on technical committees have the opportunity to review the proposed standard and then it's reviewed by the 9-member Committee on Standards, which looks to see whether or not the process of ASTM has been followed and that the committee which developed the standard was balanced (i.e., that the committee was made up of individuals with diverse areas of expertise and divergent economic, business, etc. interests).
ASTM, 2005 WL 1941653, at *2 (internal citations omitted).
4
Even if defendants overstate Armor Shield's position in the market, our result would not be different as it does not turn on this point. In any event, regardless of Armor Shield's market share, it is obvious that the adoption of a standard recognizing MTCF as a viable, non-evasive method for evaluating USTs was not in its interest
5
We are uncertain to what extent, if any, membership in the task group and the E-50 and G-01 committees differed
6
To be "balanced," a committee "could not be made up of more members who are or were affiliated with a commercial `producer' than members who were classified as `users' or `general interest.'"ASTM, 2005 WL 1941653, at *4 n. 1 (internal citation omitted).
7
Bushman, for a time, also had served as Chairman of the E-50 (environmental assessment) committee and was one of Corrpro's co-founders. Bushman's affiliation with Corrpro ended in September 1993, when, pursuant to a negotiated severance agreement, he formally resigned as an officer, employee, and member of Corrpro's board of directors
8
ASTM did not make a contribution towards the settlement. We note that the Rogers-WRA and Baach-Corrpro contributions do not equal $1.4 million, and thus conclude that other defendants in the underlyingArmor Shield litigation, not involved in this litigation, must have contributed the balance.
9
On March 28, 2002, Rogers and WRA's Board of Directors entered into a formal agreement whereby Rogers agreed to remit any monies he recovered from ASTM (pursuant to its indemnification provision) to WRA as reimbursement for the attorney's fees, costs, and expenses related to theArmor Shield litigation that WRA had paid on his behalf.
10
As Rogers had done with WRA, Baach entered into a formal agreement with Corrpro whereby he agreed to remit to Corrpro any monies he recovered from ASTM (pursuant to its indemnification provision) as reimbursement for the attorney's fees, costs, and expenses related to theArmor Shield litigation that Corrpro paid on his behalf. Neither Baach nor Corrpro, however, assumed any similar obligation to reimburse National Union.
11
The district court, in an unchallenged determination, found that National Union paid $700,000 of the settlement which we note is one-half of the total settlement paid by all the defendants but more than one-half of what Corrpro paid
12
In its findings of fact, the district court observed that notwithstanding defendants' repeated offers "to present evidence, provide information or answer any questions that ASTM may have had regarding the allegations in the Armor Shield complaint. . . . ASTM gave the defendants no opportunity whatsoever to present any information or evidence to either the Board of Directors or the Executive Committee. . . ."ASTM, 2005 WL 1941653, at *5 (internal citations omitted). The court further observed that:
In deciding that the defendants were not made parties to the Armor Shield suit by reason of the fact that they were serving on a committee operating under the auspices of the Society and that they were not acting in good faith and in a manner which they reasonably believed to be in, or not opposed to, the best interests of the Society, Plaintiff ASTM considered only the allegations contained in Armor Shield's complaint and amended complaint. ASTM undertook absolutely no investigation whatsoever to determine the veracity of those averments, despite the fact that it believed the allegations against it in the Armor Shield pleadings to be false and that it had voted to uphold the findings of its own Committee on Standards that its internal regulations and balance requirements had been followed by the E-50 and G-01 Committees in their development of the ES-40 and G158 standards.
Id. (internal citations omitted).
The Board and Executive Committee were not, however, in the dark about the Armor Shield litigation. With respect to their knowledge of it, ASTM notes that in April 1999, Thomas O'Brien, ASTM's outside counsel, made a presentation to the entire Board summarizing the allegations in the Armor Shield litigation based on his review of the pleadings and outlining the legal and factual bases of the antitrust claims raised. O'Brien also explained the substance of a motion to dismiss that he had drafted on ASTM's behalf. Morris Brooke, ASTM's general counsel supplemented Brown's presentation with a white paper circulated to the Executive Committee that "`walked the [E]xecutive [C]ommittee members through an analysis and an understanding of the . . . not-for-profit laws of the state of Pennsylvania.'" Appellant's br. at 17 (quoting J.A. at 126). Finally, inasmuch as most members of the Executive Committee also were serving on the Board when Sharp filed his appeal regarding the creation of G-158, they were "familiar with the facts underlying the controversy . . . even prior to hearing the presentations and reviewing the materials prepared by counsel." Id.
13
On August 30, 2005, defendants filed a joint bill of attorney's fees and costs as well as a motion to file unredacted copies of materials relating to their attorney's fees under seal, which ASTM opposed. On September 21, 2005, the district court stayed defendants' motion until such time as we issue our decision on ASTM's appeal
14
On appeal, the Supreme Court framed the question presented as follows: "[W]hether a decision on the merits is a `final decision' as a matter of federal law under § 1291 when the recoverability or amount of attorney's fees for the litigation remains to be determined."Budinich, 486 U.S. at 199, 108 S.Ct. at 1720.
15
The earlier order became final when the court entered the February 13, 1995 order. Consequently, we then had jurisdiction over the appeal from the earlier orderRagan, 62 F.3d at 505-06.
16
The Pennsylvania Supreme Court inCuker pointed out that the ALI Principles pertaining to the business judgment rule were similar to but not identical with Pennsylvania statutory law. See Cuker, 692 A.2d at 1049 n. 3.
17
We note that ASTM additionally has advanced the "public policy" argument that if we allow the district court's decision to stand, our decision will have a "chilling" effect insofar as it fails to show "any deference to board decision-making unless arduous procedures are followed." Appellant's br. at 32. The contention is without merit. The district court's decision merely requires that an "adequate investigation" be conducted as that term has been interpreted in the case law— nothing more
18
We point out that it appears that if ASTM had wanted to do so it could have vested its officers or directors with power to exercise the type of discretion that the business judgment rule is intended to protect. In this regard, we observe that 15 Pa. Cons.Stat. Ann. § 5741 is not mandatory. Thus, rather than requiring a nonprofit corporation to indemnify the protected persons, it merely gives the corporation the "power" to do so, but limits the power to corporations not "otherwise restricted in [their] bylaws." Thus, ASTM did not have an obligation to adopt Bylaw No. 10.1 or its equivalent. Accordingly, it follows that ASTM could have adopted a bylaw reserving discretion in itself to determine whether in a particular case it would indemnify a person seeking indemnification. But it eschewed that approach and instead used the mandatory words that a person protected "shall be indemnified" in the circumstances the bylaw sets forth. We can understand why ASTM took that approach as it encourages persons to participate in its activities. Moreover, ASTM had a particular reason to take the mandatory obligation approach as its members serve in standard-setting activities without pay or other compensation and might be unwilling to do so without protection against liability for their activities. Nevertheless, in view of the fact that ASTM adopted the mandatory right to indemnification approach, it is difficult to understand how it can abandon that approach retroactively by reliance on the business judgment rule when a protected person seeks to be indemnified
19
In making this point, we fully are aware of ASTM's contention that, in determining a claimant's contractual right to indemnity, some district courts have found it appropriate to analogize that claim to those in cases dealing with an insured's right to insurance coverageSee Mahon v. City of Bethlehem, 902 F.Supp. 76, 78 (E.D.Pa.1995).
20
This case differs fromSt. Paul Ins. Cos. v. Talladega Nursing Home, Inc., 606 F.2d 631 (5th Cir.1979), which ASTM cites in support of the proposition that mere allegations of anticompetitive acts against the defendants, regardless of their actual intent, provide sufficient grounds upon which to deny defendants' request for indemnification given Pennsylvania's policy prohibiting individuals from contracting away liability resulting from their own intentional torts. In Pennsylvania, as elsewhere, an insurer's duty to defend is measured by a claimant's pleadings. Pac. Indem. Co. v. Linn, 766 F.3d 754, 760 (3d Cir.1985). Accordingly, if there is no possibility that the facts alleged, if true, could fall under the policy's scope of coverage, as is the usual case when an intentional tort is at issue, the insurer has no duty to defend the insured. Id. (citing Terra Nova Ins. Co. v. 900 Bar, Inc., 887 F.2d 1213, 1216 (1989)). So it was in St. Paul Insurance Cos., where the Court of Appeals for the Fifth Circuit affirmed the district court's decision that plaintiff insurers had no duty to defend, in part because the allegations of the underlying complaint constituted intentional wrongs. 606 F.2d at 633-34 (applying Alabama law). This case, however, is plainly in a different procedural posture inasmuch as the underlying action (i.e., the Armor Shield litigation) was settled prior to defendants' final demands for indemnification. As such, what instead appears to be required is a determination of whether defendants acted in "good faith." Here, the district court made an affirmative determination on that issue.
ASTM attempts to refute this conclusion by relying on Allstate Insurance Co., 1998 WL 205693, for the proposition that "where the underlying litigation either has settled or has not yet gone to judgment, the court need only look to the facts alleged in the underlying complaint . . . to determine whether indemnification is appropriate." Appellant's br. at 39. In Allstate Insurance Co., however, an arbitrator expressly ruled against the insured; it was on that basis that plaintiff insurer filed its declaratory judgment action seeking an order that it had no duty to defend. 1998 WL 205693, at * 1. Thus, inasmuch as neither Baach nor Rogers ever has admitted liability in this or in the underlying litigation, Allstate Insurance Co. is factually distinguishable.
21
In support of its argument, ASTM citesIn re Miller, 290 F.3d 263 (5th Cir.2002). In In re Miller, the trustee of the estate of William Miller sought "indemnification of legal expenses and a litigation judgment entered against Miller and in favor of his former employer, Abrams, Inc." Appellant's br. at 45; see also In re Miller, 290 F.3d at 265-66. By contrast, however, judgment was not (and can never be) entered against Baach and Rogers in the Armor Shield litigation. Moreover, the district court expressly found "there is no evidence that Defendants were acting in bad faith or in a manner which they reasonably believed to be in opposition to the best interests of the Society." ASTM, 2005 WL 1941653, at * 12. Accordingly, In re Miller is factually inapposite.
22
ASTM takes the position that unless the district court expressly states that the settlement was reasonable, its judgment cannot be upheld. That position might be true in a case involving conflicting evidence on a reasonableness issue, but this case does not fall within that category. Thus, we see no reason for protracting this litigation by remanding this case to the district court to make an express finding on the reasonableness of the settlement
We, however, do make the following observation regarding the reasonableness of the settlement, taking our computations from the district court opinion and our study of the record. See ASTM, 2005 WL 1941653, at * 12. It appears that Rogers' and WRA's attorney's fees in the Armor Shield litigation were $338,083.85. Moreover, Rogers testified that "we could anticipate defense costs roughly equal to what we already expended in order to go to trial on this matter." J.A. at 443. Thus, regardless of what the outcome at trial would have been if the parties had not settled the Armor Shield litigation, by paying $50,000 in settlement of Armor Shield's claim, Rogers and WRA certainly saved money.
Corrpro had over $300,000 in unreimbursed legal fees, costs, and expenses in the Armor Shield litigation that it incurred on behalf of itself and Baach. It settled the case for $1.225 million but National Union paid $700,000 of that amount so that the net cost of the settlement to Corrpro was $525,000. While we cannot say that it was less expensive for Corrpro and Baach to settle the Armor Shield litigation than it would have been to win after a trial, because their expenses were ongoing it similarly made good sense for them to settle.
Aside from the expense factor the defendants faced the risk of losing in the Armor Shield litigation and suffering damages judgments that might have ruined them. Thus, Rogers testified that Armor Shield was demanding "something like $90 million," id., so that considering his choices the settlement was reasonable. Baach also testified that the settlement was reasonable because Armor Shield was requesting $30 million and that he "understood because of the nature of the allegation [that request] could be multiplied time three to $90 million." Id. at 89. Moreover Baach believed, correctly as it turned out, that National Union would pay a little better than half of the settlement costs. Overall, considering Roger's and Baach's cases either separately or together their settlement was reasonable. The fact is that they were engaged in "bet the company" litigation and it was in their interest that they end it. | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1082516/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1998 SESSION August 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9706-CR-00219
Appellee, )
) Cumberland County
)
) Honorable Leon C. Burns, Jr., Judge
)
RICHARD LEE FRANKLIN, ) (Second Degree Murder)
)
Appellant. )
FOR THE APPELLEE: FOR THE APPELLANT
Michael M. Raulston John Knox Walkup
Attorney at Law Attorney General & Reporter
4701 Hixson Pike
Hixson, TN 37343-4818 Michael J. Fahey, II
Assistant Attorney General
Larry M. Warner Criminal Justice Division
Attorney at Law 425 Fifth Avenue N
204 North Main Street Nashville, TN 37243
Crossville, TN 38557
William Edward Gibson
District Attorney General
David A. Patterson
Assistant District Attorney General
145 S Jefferson Avenue
Cookeville, TN 38501-3424
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Richard Lee Franklin, the appellant, was originally convicted of first
degree murder in the shooting death of David Kirkland. The trial court granted
the appellant’s motion for a new trial because of procedural errors. The
appellant was retried and convicted by a jury of second degree murder in the
Cumberland County Criminal Court. He was sentenced to twenty-two years in
the Tennessee Department of Correction. He appeals and raises ten issues for
our review. We affirm the judgment of the trial court.
The facts as established by the state’s witnesses are as follows. During
an evening in November 1992, David Kirkland, the victim, and his girlfriend,
Michelle Burnette, went to Bob’s Bar in Cumberland County. Once inside, they
then began playing pool against the appellant and his wife. The bet was for a
beer. When Michelle failed to call a pocket on her first shot, the appellant’s wife
swore at her. As the game continued, the appellant’s wife continued to swear at
the victim and his girlfriend under her breath. After losing the game, the victim
and his girlfriend went to the bar to buy beers for the appellant and his wife. The
appellant’s wife approached them and said, “F--- you.” The victim then
responded, “You can take those ‘f--- yous’ and stick them up your ass!” The
appellant heard the victim’s comment and began to approach the victim and
Michelle who were moving toward the front door.
Larry Walker, a friend of the victim’s, saw the appellant moving toward the
victim with a cue stick. Walker confronted the appellant and the two began
fighting. Willard Kennedy, the bartender, pulled Walker off the appellant. The
appellant yelled at his wife to get his gun and then ran outside of the bar. The
bartender locked the front door. The appellant went to his vehicle, ripped open
the glove compartment, and got his weapon.
In the meantime, the bartender broke up the fight and ordered everyone
to leave the bar. As the bartender opened the front door, the appellant pushed
-2-
his way inside and asked, “Where did the son of a bitch go?” The victim, who
was beside the door, said, “Here I am.” The appellant reached around Kennedy,
lifted his gun, and shot the victim in the chest. The victim fell to the floor and
was dead within moments.
According to the appellant’s testimony, the victim started the verbal
confrontation. The appellant testified that he went to get his gun because his
wife was being beaten. The appellant testified that the gun discharged
accidentally when the victim struck the appellant with a cue stick. He was
vigorously cross-examined by the state. The jury accredited the testimony of the
state’s witnesses.
In his first issue, the appellant contends that his retrial violates his right to
be free from double jeopardy. He contends that a defendant who has been
convicted cannot be retried on the same charge when the verdict is set aside
due to errors which were no fault of the defendant. W e disagree. “The double
jeopardy guarantee affords three separate constitutional protections against: 1)
a second prosecution for the same offense after acquittal; 2) a second
prosecution for the same offense after conviction; and 3) multiple punishments
for the same offense.” State v. Harris, 919 S.W.2d 2d 323, 328 (Tenn. 1996)
(citing North Carolina v. Pearce, 395 U.S. 711, 716 (1969); State v. Mounce, 859
S.W.2d 319, 321 (Tenn.1993)). When a defendant obtains a new trial on some
basis other than insufficiency of the evidence, double jeopardy does not preclude
a retrial of the defendant. Id. This issue is without merit.
In his second issue, the appellant argues that the trial court made
improper comments during voir dire. In response to a line of questioning by the
defense, a prospective juror asked how jurors were to judge the case if the state
provided witnesses under oath and the defense presented no witnesses. In
response to the question, the trial court explained that a defense can be
presented through the cross-examination of the state’s witnesses, that the jury
-3-
was responsible for assessing a witness’ credibility, and that the defendant did
not need to testify in order to deny the existence of the elements of the crime.
As the state argues, the appellant has waived this issue by failing to object to the
trial court’s remarks. T.R.A.P. 36(a); State v. Renner, 912 S.W.2d 701, 705
(Tenn. 1995). Furthermore, we find no error in the court’s remarks, the aim of
which was to ensure that the appellant received a fair trial.
The appellant argues in issues three and four that the trial court erred in
failing to direct a verdict of acquittal at the close of the state’s proof and at the
close of all the proof. The appellant primarily argues that the state failed to
establish that the cause of the victim’s death was the gunshot wound inflicted by
the appellant. This Court will not disturb a verdict of guilt for lack of sufficient
evidence unless the facts contained in the record and the inferences, which may
be drawn from the facts, are insufficient for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982).
The state introduced through the testimony of police investigator, Benton
Threet, a certified copy of the death certificate of the victim from the Cumberland
County Health Department which shows the cause of death as a “gunshot
wound to the chest.” The death certificate was signed by pathologist, Dr. James
Barnawell. The state also presented the testimony of Michelle Burnette, Willard
Kennedy, and Larry Walker to establish that the appellant shot and killed the
victim. The appellant contends that the evidence of causation is insufficient
because the death certificate is not trustworthy. He explains that Dr. Barnawell
testified that he did not examine the deceased, was not in town when the victim
was at the Cumberland County Medical Center, and did not perform an autopsy.
The appellant relies on Dr. Barnawell’s testimony that there could be other
causes of death such as severe or sudden myocardial infarction, brain stem
hemorrhage, or stroke. Dr. Barnawell also testified that, after looking at all the
medical records and photos, he determined and was sure that the cause of
-4-
death was a gunshot wound to the chest. Dr. Barnawell was entitled to rely on
the victim’s history and case file to form his opinion. Cole v. State, 512 S.W.2d
598, 601 (Tenn. Crim. App. 1974). Additionally, the lay testimony alone is
sufficient to establish that the victim died of a gunshot wound. The cause of
death need not be proven by expert testimony. McCord v. State, 278 S.W.2d
689, 691 (Tenn. 1955); Bryant v. State, 503 S.W.2d 955, 958 (Tenn. Crim. App.
1973). The proof is overwhelming that the victim died from the gunshot wound
inflicted by the appellant. These issues are without merit.
In issue five, the appellant contends that the trial court erred in admitting
the death certificate as proof of the cause of death. The appellant objected to
the admission of the certificate because the methods used to prepare the
information in the certificate were untrustworthy. The appellant offered the
testimony of Dr. Barnawell in support of his objection. As previously stated, Dr.
Barnawell did not perform an autopsy on the deceased. Dr. Barnawell testified
that he relied on the medical examiner’s report and the emergency room report
to establish his opinion that the victim died of a gunshot to the chest. We find
no error with the court’s admission of the death certificate. The state maintains
that the certificate is an exception to the hearsay rule under Tennessee Rule of
Evidence 803(8). We agree. The certificate is a record of the Tennessee
Department of Public Health. Dr. Barnawell’s testimony verified that the death
certificate offered into evidence was the same certificate that he completed and
signed. This issue is without merit.
In issue six, the appellant claims that the trial court erred in admitting a
diagram of the crime scene into evidence which was introduced through the
testimony of Investigator Threet. The appellant objected to the admission of the
diagram because it was not drawn to scale. He cites Tennessee Rule of
Evidence 801, but he does not explain why the alleged error requires reversal.
Threet testified that the diagram was not drawn to scale but that it did accurately
depict the location of certain items as he observed them. There was no abuse of
-5-
discretion by the trial court in admitting the diagram. There is no showing of
prejudicial error. This issue is without merit.
In issue seven, the appellant contends that the trial court improperly
instructed the jury that they may infer the cause of death. The court instructed
the jury that when a wound from which death might ensue is inflicted with the
intent to kill, you may infer that death following that wound was caused by such
wound. If one so infers, the defendant should show that death resulted from
some other cause not attributable to the defendant. The court further instructed
the jury that the burden to prove the cause of death never shifts from the state.
The jury instructions read as a whole fairly informs the jury of the applicable law.
There is no showing of prejudicial error. The evidence of the cause of death was
overwhelming. This issue is without merit.
In issue eight, the appellant argues that during closing argument, the state
improperly argued that the appellant was presumed guilty. The state argued that
“And when you go back to the jury room, that witness that goes back with you,
which is the presumption of guilt, he has a hard time going with you.”
As the state argues, the appellant has waived this issue by failing to object to
the court’s remarks. Moreover, the state’s remark did not likely affect the result
of the appellant’s trial because the trial court instructed the jury that the appellant
was presumed innocent and because the evidence of the appellant’s guilt was
overwhelming. This issue is without merit.
In issue nine, the appellant argues that the trial court erred in not allowing
the appellant to voir dire the jurors individually about their knowledge of the case.
Before trial, a newspaper article about upcoming murder trials appeared on the
front page of a local paper. The article mentioned that the appellant had been
tried and convicted of first degree murder in his first trial. Citing the article, the
appellant made a motion for individual voir dire. To save time, the court said that
it would prefer the defense to voir dire on all issues except knowledge of the
-6-
case, and then proceed with individual voir dire of the jurors. The defense
counsel agreed to the procedure and made no objection. Later, counsel
requested, and was granted, the chance to individually voir dire the jurors as to
specific knowledge of the case. The trial court allowed individual voir dire. We
fail to understand how the court denied the appellant the right to individually voir
dire prospective jurors. There is nothing in the record, including an objection,
and nothing in the appellant’s brief beyond a conclusory statement, to indicate
any prejudicial error. This issue is without merit.
Finally, the appellant argues that the trial court erred in failing to apply
various mitigating circumstances. We assume that the appellant refers to his
account of the shooting as “I got hit in the face and the gun went off.” The state
interprets the appellant’s argument to be that the trial court erred in failing to
consider that the appellant’s tooth was knocked out during the barroom brawl as
a mitigating factor in determining the appellant’s sentence. Appellant’s brief on
this issue is inadequate. We find no merit to either interpretation of the
appellant’s grievance. The appellant’s sentence is affirmed.
Finding no reversible error, we affirm the judgment of the trial court which
approved the conviction and the sentence.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
JERRY L. SMITH, Judge
-7-
_____________________________
CURWOOD W ITT, Judge
-8- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1250434/ | 140 Wis.2d 411 (1987)
410 N.W.2d 614
STATE of Wisconsin, Plaintiff-Respondent,
v.
Joel S. FLAKES, Defendant-Appellant.[]
No. 86-1248-CR.
Court of Appeals of Wisconsin.
Submitted on briefs April 7, 1987.
Decided June 12, 1987.
*414 For the plaintiff-respondent the cause was submitted on the briefs of Bronson C. La Follette, attorney general, and Sally L. Wellman, assistant attorney general.
*415 For the defendant-appellant the cause was submitted on the briefs of Crawford Law Firm, with Robert C. Crawford of counsel.
Before Moser, P.J., Wedemeyer and Sullivan, JJ.
WEDEMEYER, J.
Joel S. Flakes appeals from a judgment of conviction and an order denying postconviction relief. Flakes was found guilty of second-degree murder and second-degree sexual assault, contrary to secs. 940.02(1) and 940.225(2)(e), Stats. Flakes raises three issues on appeal: (1) the trial court erred when it allowed the state to amend the information to conform to the proof; (2) there was insufficient evidence to convict on second-degree murder; and (3) the warrantless search by his parole agent was illegal. We affirm on all three issues because we conclude that the trial court did not misuse its discretion when it amended the information, there was sufficient evidence to convict on second-degree murder and the search was not illegal.
Flakes, a parolee, was arrested for selling marijuana to an undercover police officer. Police sought permission to search his apartment but he denied such permission. Two days later the police told Flakes' parole agent of the new arrest. The agent searched Flakes' apartment and discovered the nude body of a fourteen-year-old boy in the closet.
Flakes made an oral and written confession in which he admitted killing the boy while the two were engaged in anal intercourse. The case was tried to the court. A verdict of guilty of second-degree murder and second-degree sexual assault and not guilty on three other counts was returned. Flakes was sentenced to forty-six years. All relief sought through a post conviction motion was denied.
*416 AMENDMENT TO THE INFORMATION
Flakes first contends that the amendment to the information was error. After the close of the state's evidence, the defense moved to dismiss the entire information. Flakes explained that the state had failed to prove second-degree sexual assault with a person whom Flakes knew to be unconscious, contrary to sec. 940.225(2)(d), Stats. The state then moved to amend the information to charge second-degree sexual assault, sexual contact or sexual intercourse with a person over twelve years of age and under sixteen years of age, contrary to sec. 940.225(2)(e), Stats., to conform to the proof and the statutory language used in the charging documents.[1] The court ruled that the state could amend to charge sec. 940.225(2)(e).
[1, 2]
Under sec. 971.29(2), Stats., the court may allow amendment of the information to conform to the proof where such amendment is not prejudicial to the defendant. It is within the trial court's discretion to allow such an amendment to the information. See State v. Wickstrom, 118 Wis. 2d 339, 347-49, 348 N.W.2d 183, 188-89 (Ct. App. 1984). A trial court's decision to allow an amendment will not be reversed in the absence of a clear or manifest misuse of discretion. See J.F. Ahern Co. v. Wisconsin State Bldg. Comm'n, 114 Wis. 2d 69, 85, 336 N.W.2d 679, 686 (Ct. *417 App. 1983). If the record shows that discretion was exercised and a reasonable basis exists for trial court's ruling, we will sustain it. Id., 336 N.W.2d at 686-87.
[3]
Flakes contends that the amendment did not conform to the proof and that the amendment was prejudicial. We first consider Flakes' argument that the amendment did not conform to the proof. Flakes claims that the entire thrust of the evidence offered by the state was to prove a violation of sec. 940.225(2)(d), Stats. We disagree. The trial court found that:
The State has proven beyond a reasonable doubt based on all the evidence in this case and especially upon the defendant's own statement corroborated by the physical evidence on [the victim's] body, that the defendant did have sexual intercourse, penis to anus, with [the victim] who was 14 years of age at the time of sexual intercourse.
The proof in the case included evidence of the victim's age, and that the defendant had sexual intercourse with him. Therefore we conclude as a matter of law that the amendment conformed to the proof.
The trial court properly allowed the information to be amended to state the correct statutory citation after it found that Flakes had actual notice of the crime charged from the description of the offense contained in the complaint and the information. An amendment to correct an incorrect statutory citation is permissible if the original information enables the defendant to understand the offense charged, so that he can prepare his defense. Wagner v. State, 60 Wis. 2d 722, 728-29, 211 N.W.2d 449, 453 (1973). An information which miscited the statutory reference was sufficient *418 where it verbally described the violation and the defendant could not have been misled or prejudiced by the incorrect statutory reference. Id. at 729, 211 N.W.2d at 453. The rule in Wisconsin is that the trial court may allow amendment of an information at any time in the absence of prejudice to the defendant. Id. at 726, 211 N.W.2d at 452.
In this case, the trial court stated that:
It is clear from reading the information and complaint that the State intended to charge the defendant with the crime of sexual intercourse with the person under the age of 16 years, contrary to Wisconsin Statutes section 940.225 sub. (2) sub. (e). Although defense counsel argues the prosecutors add all sorts of surplusage to charging documents, that is not this Court's experience. In addition, it is clear the State in no way alleged the defendant had sexual intercourse with a person who the defendant knew to be unconscious. The State never used that language in the complaint or in the information. There is no doubt that the State charged the defendant with having sexual intercourse with a child under the age of 16 and that the statutory reference was either a typographical or drafting error.
....
The Court finds that everyone, including the defense, knew the State intended to proceed under the subsection that charges the defendant with having sexual intercourse with a child under the age of 16, but the defense is not, quote, unquote, "surprised" by the State's motion to amend now, now that it's aware of the typing error and that the defense has not relied to its detriment in any way upon the State's error. *419 We agree with the trial court's conclusion that Flakes had notice of the actual charge and that it was a typographical or drafting error. The trial court correctly exercised its discretion when it allowed the amendment.
Flakes asserts that he was prejudiced by the amendment. We disagree.
The trial court found that:
there was no prejudice to the defense in the amendment of that particular typing error at the close of the trial. The defense cites as prejudice the rejection of the plea bargain that was offered. I'm not sure that rejection of a plea bargain was in fact prejudice, but even if it was prejudice, the exposure the defendant faced after the trial was less than the plea bargain offered, so the defendant benefited by having tried the case despite the Court's refusal to find for the defendant on count two. There is no showing by the defense that the trial would have been handled in any different way under sub. (e) than sub. (d), that there would have been any other witnesses, any other defenses, any other strategic decisions that would have been made during the course of the trial other than the ones that were made.
[5]
The purpose of a charging document is to inform the defendant of the acts he allegedly committed and to allow him to understand the offense charged so that he can prepare a defense. Wickstrom, 118 Wis. 2d at 348, 348 N.W.2d at 188. The key factor in determining whether an amended charging document prejudiced the defendant is whether the defendant had notice of the nature and cause of the accusations against him. Id. at 349, 348 N.W.2d at 189. There is no prejudice when the defendant has such notice. Id.
*420 [6]
Flakes has never claimed that he had a viable defense against the charge of sexual contact or intercourse with a minor or that he failed to present such a defense because he did not realize age was an issue. The only prejudice he has asserted is the fact that he rejected a plea bargain because he believed the state would not be able to prove the unconsciousness element of the sexual assault charge. In Wickstrom the court rejected the defendant's argument that an amendment prejudiced him because it doubled the maximum penalty he faced. The court concluded that Wickstrom's ability to defend himself was not adversely affected. Id. at 348-49, 348 N.W.2d at 188-89. Similarly in this case, Flakes' ability to defend himself was not prejudiced by the amendment. Therefore we conclude as a matter of law that Flakes was not prejudiced by the amendment. Since there was no error of law, the trial court properly exercised its discretion when it allowed the amendment to the information.
Flakes further contends that the application of sec. 971.29(2), Stats., is unconstitutional under both the state and federal constitutions. We disagree. We hold that he had actual notice of the charge of sexual contact or intercourse with a person over twelve and under sixteen years of age and that he was not denied any constitutional rights.
The determination of whether Flakes was deprived of his constitutional rights presents a question of constitutional fact: whether Flakes had actual notice of the charge so as to comport with constitutional guarantees. Deference is given to the trial court's findings of evidentiary or historical facts, but not to the ultimate conclusion of constitutionality. State v. *421 Woods, 117 Wis. 2d 701, 715-16, 345 N.W.2d 457, 465 (1984), writ of habeas corpus granted on other grounds. Woods v. Clusen, 605 F. Supp. 890 (E.D. Wis. 1985), aff'd 794 F.2d 293 (7th Cir. 1986). After reviewing the trial court's findings of evidentiary facts, we conclude as a matter of law that Flakes had actual notice of the crime with which he was charged and that there was no violation of his state or federal constitutional rights.
Flakes' first contention is that he was denied his right "to demand the nature and cause of the accusation against him" under Wis. Const. art. I, sec. 7. Flakes claims that Roth v. State, 180 Wis. 573, 576, 193 N.W. 650, 651 (1923) requires that he was "entitled to know the offense of which he was charged."
We agree with the trial court that the charging document gave the defendant actual notice of the fact that he was charged with sexual intercourse with a person under the age of sixteen and over twelve. The actual wording of the complaint set forth the elements of that charge and made no reference to unconsciousness even though it cited to sec. 940.225(2)(d), Stats., which includes the element of unconsciousness. There was no allegation by the state in the probable cause section of the complaint as to unconsciousness and there was no proof of unconsciousness at the preliminary hearing.
[7]
Unlike Roth, where the defendant was accused of one offense and convicted of another of which he was not apprised by the information filed, Flakes had actual notice of the true charge against him and had the opportunity to defend against that charge. We note that Flakes has not claimed that he had a viable defense to the charge of sexual assault with a person *422 fourteen years old or that he failed to present such a defense because he did not realize age was an issue. We refuse to conclude Flakes had no actual notice of the charge, when he knew there was a typographical error and made a tactical decision to proceed based on that error on the gamble that the court would not permit an amendment. This is not a case where the defense was unaware of a typographical error and relied on the incorrect statutory citation to present his case. Flakes was not denied his rights under art. I, sec. 7 of the state constitution.
We conclude, for similar reasons, that Flakes was not denied his right to due process under either the state or the federal constitution. Flakes argues that Wis. Const. Art. I, sec. 8, which states that "[n]o person may be held to answer for a criminal offense without due process of law," requires that trial proceedings be fundamentally fair. Flakes also relies on the due process clause of the federal constitution. Since the due process clause of the state constitution is essentially the same as the federal due process clause, State v. Cissell, 127 Wis. 2d 205, 223, 378 N.W.2d 691, 699 (1985), cert. denied, 106 S. Ct. 1651 (1986), we will consider the claim as one.
[8]
Due process guarantees a criminal defendant the right to notice of the specific charge and a chance to be heard in a trial of the issues raised by that charge. Cole v. Arkansas, 333 U.S. 196, 201 (1948). Because we hold that Flakes had actual notice of the correct charge, even though the citation was incorrect, we conclude he was provided with the due process right to notice and the opportunity to defend against that charge. The written part of the criminal complaint, as well as the information, informed Flakes of the exact *423 nature of the charge. None of the cases cited by Flakes involve such a situation or support a holding to the contrary. Flakes was not deprived of notice and the opportunity to be heard and, therefore, his constitutional rights were not violated.
SUFFICIENCY OF THE EVIDENCE
Flakes' second claim of error is that there was insufficient evidence to convict him on the greater offense of second-degree murder. He argues that the court should have acquitted him on the greater offense of second-degree murder and convicted him on the lesser included offense of homicide by reckless conduct, contrary to sec. 940.06, Stats. We disagree. We conclude that there was sufficient evidence to prove beyond a reasonable doubt that Flakes was guilty of second-degree murder.
The standard of review on questions of sufficiency of the evidence is as follows:
"This court must affirm if it finds that the jury, acting reasonably, could have found guilt beyond a reasonable doubt. The function of weighing the credibility of witnesses is exclusively in the jury's province, and the jury verdict will be overturned only if, viewing the evidence most favorably to the state and the conviction, it is inherently or patently incredible, or so lacking in probative value that no jury could have found guilt beyond a reasonable doubt." ... [W]e will not substitute our judgment for that of the jury unless, under all the evidence presented, the jury could not have found guilt beyond a reasonable doubt.
State v. Serebin, 119 Wis. 2d 837, 842-43, 350 N.W.2d 65, 68 (1984) (citations omitted and emphasis in original). The test is the same, whether trial is to a jury or to the court. Gauthier v. State, 28 Wis. 2d 412, *424 416, 137 N.W.2d 101, 103 (1965), cert. denied, 383 U.S. 916 (1966).
[9]
The crime of second-degree murder has three elements: 1) the defendant's conduct was imminently dangerous to another; 2) the defendant's conduct was of such a character that it evinced a depraved mind, regardless of life; and 3) the defendant's conduct caused the death of the victim. Turner v. State, 76 Wis. 2d 1, 9-10, 250 N.W.2d 706, 711 (1977). Flakes asserts that the state did not prove imminently dangerous conduct.
The pathologist testified that the victim died of asphyxia due to ligature strangulation. The pathologist also testified that the actions of choking were probably continuous motions for at least thirty seconds and probably two or three minutes. Also, she testified that when she examined the body a sock was loosely tied around the mouth, and the hands were tied together with socks, as were the ankles.
Flakes argues that his conduct was not imminently dangerous because there was no evidence that the placement of a soft ligature around the neck of the victim was in and of itself dangerous. What is important, however, is whether the conduct under the circumstances of the case was imminently dangerous. Wagner v. State, 76 Wis. 2d 30, 44-45, 250 N.W.2d 331, 337 (1977).
[10]
The circumstances here include the placing of a ligature around the victim's neck for a period of time, in a manner sufficient to cause hemorrhage of the eyes and neck muscles, a continuous discoloration of the skin around the neck, and death by asphyxiation. This occurred during a sexual act in which Flakes was *425 highly excited and did not know how tightly he was holding the victim. The defendant's act of strangling the victim with a soft ligature during a sexual act was by its nature dangerous. The fact that it may be possible to apply a ligature in a manner which is not dangerous to life does not alter the fact that the trier of fact could reasonably conclude that under these circumstances the conduct was imminently dangerous. The victim's death may not have been expected or intended by Flakes, but that does not alter the degree of danger in which he chose to place the victim by his conduct. See Turner, 76 Wis. 2d at 14, 250 N.W.2d at 713.
Flakes also confessed to holding the victim down by holding him around the neck in several positions. Flakes' former roommate testified that in similar circumstances he had protested to Flakes about being choked. Thus, Flakes was aware of the dangerousness of those activities when he engaged in them with the victim. Under the test of Serebin, we conclude that a trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.
SEARCH BY PAROLE AGENT
The final issue is whether the warrantless search by the parole agent was legal. We are bound by State v. Griffin, 131 Wis. 2d 41, 46, 388 N.W.2d 535, 536 (1986), aff'd, 107 S. Ct. 3164 (1987), which held that a probation officer may search a probationer's residence without a warrant if he has reasonable grounds to believe that the probationer has contraband. We conclude that the search by the parole agent was based on reasonable grounds, and was therefore constitutional.
*426 We first note that the holding of Griffin applies to parolees as well as to probationers. The court in Griffin held that the "reasonable grounds" standard of Wis. Adm. Code, sec. HSS 328.21(3)(a), meets the constitutional standard of reasonableness.[2]Griffin, 131 Wis. 2d at 61, 388 N.W.2d at 542. This section of the Administrative Code pertains to parolees as well as probationers. Additionally, the cases relied upon in Griffin either fail to distinguish between probation or parole status or treat them the same. Griffin, 131 Wis. 2d at 53 n. 4, 388 N.W.2d at 539 n. 4. The court stated that "there is ample authority for the viewpoint that probation or parole officers may conduct warrantless searches of a probationer's or parolee's residence." Id. at 52, 388 N.W.2d 539 (emphasis added).
[11]
Whether a search is reasonable is a question of constitutional fact, which we review independent of the trial court's conclusion. Id. at 62, 388 N.W.2d at 543. The trial court's findings of evidentiary or historical facts will not be upset upon appeal unless they are contrary to the great weight and clear preponderance of the evidence. Id.
[12]
We first consider whether this was a police search. See id. at 63, 388 N.W.2d at 543. The trial court found that there was no credible evidence to find that the parole agent "was a stalking horse or agent for the Milwaukee Police Department." We agree with the trial court's conclusion that there is no evidence in *427 the record that this was a police search. Furthermore, a reasonable search should not be deemed unlawful merely because the police provide the information that leads to the search. Id. at 57, 388 N.W.2d at 541.
We also must review the considerations set forth in Wis. Adm. Code, sec. HSS 328.21(6), to determine whether the parole agent had reasonable grounds to conduct a warrantless search of Flakes' apartment. Griffin, 131 Wis. 2d at 63-64, 388 N.W.2d at 544. Under sec. HSS 328.21(3)(a) a search of a client's living quarters may be conducted "if there are reasonable grounds to believe that the quarters ... contain contraband." Contraband is defined as "[a]ny item whose possession is forbidden by law." Sec. HSS 328.16(1)(b). Section 161.41(3), Stats., provides that it is unlawful to possess a controlled substance, with some exceptions not applicable in this case, and sec. 161.14(4)(t), Stats., lists tetrahydrocannabinols contained in marijuana as a controlled substance.
[13]
Officer Robert Ley, a police officer involved in the arrest of Flakes, provided information to Gregory Mulry, Flakes' parole agent. Ley told Mulry that Flakes was arrested for two counts of delivery of a controlled substance, marijuana, in his apartment building; that Ley suspected that there were more drugs in Flakes' apartment; and that Flakes had refused to consent to a search of his apartment. Ley also described the nature of the controlled buys. The information was detailed, it came from a source that did not have reason to supply inaccurate information, and it concerned the activity of the client. See Wis. Adm. Code, sec. HSS 328.21(6)(b), (c), (d) and (e). Further, the trial court found that this information, along with the agent's knowledge of Flakes and his *428 history, was adequate knowledge to justify a search. See sec. HSS 328.21(6)(g). The trial court further found that the purpose of the search was to ascertain any other possible grounds for revocation of Flakes' parole, and that Mulry had not yet made that decision. Mulry needed to verify Flakes' compliance with the rules of supervision and state and federal law. See sec. HSS 328.21(6)(i). Based on all of the above, we conclude that Mulry had reasonable grounds to believe that Flakes' apartment contained contraband, and that the search was therefore constitutional.
[14]
We also conclude that exigent circumstances existed to allow the search without the supervisor's approval. Approval of the supervisor should be obtained unless exigent circumstances require a search without approval. Wis. Adm. Code, sec. HSS 328.21(3)(a). The trial court found that Mulry had attempted to secure a supervisor's approval, but due to the absence of all supervisory personnel, he was unable to do so. Mulry believed that exigent circumstances existed because the landlord had informed him that he intended to immediately empty Flakes' apartment of his belongings and was proceeding to change the locks when the agent arrived. We conclude that exigent circumstances required that the parole agent's search be conducted without the supervisor's approval.
By the Court.Judgment and order affirmed.
NOTES
[] Petition to review denied.
[1] Count two of the criminal information, which was identical to the criminal complaint, reads as follows:
Count 02 Second Degree Sexual Assault. On or about January 26, 1985, at 3431 W. Kilbourn, Apartment # 1, City of Milwaukee, did have sexual intercourse with [the victim], age 14, with a date of birth of 9-26-70, contrary to Wisconsin Statutes section 940.225(2)(d).
[2] The search of Flakes' apartment occurred in 1985. Wis. Adm. Code, sec. HSS 328.21, was repealed and recreated, effective May 1, 1986. Since only minor substantive changes were made to the rule in existence on the date of the search, we will cite to the new rule. See Griffin, 131 Wis. 2d at 60 n. 7, 388 N.W.2d at 542 n. 7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/473692/ | 796 F.2d 74
Henry HALE, Plaintiff-Appellant,v.COTTON PETROLEUM CORPORATION, Defendant-Appellee.
No. 85-1776.
United States Court of Appeals,Fifth Circuit.
Aug. 4, 1986.
Robert D. Lemon, Lemon, Close, Shearer, Ehrlich & Brown, Perryton, Tex., for plaintiff-appellant.
Pat Pirtle, Ronald D. Nickum, Amarillo, Tex., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GEE, RANDALL and DAVIS, Circuit Judges.
GEE, Circuit Judge:
1
Henry Hale appeals from the district court's order of judgment for defendant and counterclaimant Cotton Petroleum Corp. after a trial to the jury. We affirm.
I.
2
During the early 1970's, Oscar Flowers and Eloise Flowers, his wife, owned the oil, gas, and mineral interests in two tracts of land in Ochiltree County, Texas. Henry Hale ("Hale"), their son-in-law, lived and farmed on one of these tracts. In May 1974, the Flowers leased their oil, gas, and mineral interests in the two tracts to the predecessor in interest of Cotton Petroleum Corp. ("Cotton"). The lease agreement had a domestic use clause authorizing the lessor to use gas from any gas well on the lease. This right was free of charge but for the limited purpose of operating stoves and inside lights in the principal dwelling on the leased acreage. Another lease provision authorized the lessor to take a gas royalty in lieu of a money royalty on any well, provided that the gas was used for irrigation purposes only.
3
In early 1975, Cotton completed two wells on the lease. The first of these, the Flowers No. 1 well, was completed in January 1975 and was an oil well that produced a limited quantity of casinghead gas. Because Cotton had no market for the limited gas production, Cotton flared the gas. Cotton continued flaring the gas until mid-July when the well was shut in to comply with Texas Railroad Commission rules on excessive waste of casinghead gas. Cotton began selling gas from this well and from a subsequently completed gas well several weeks later.
4
In April 1975, while gas from the Flowers No. 1 well was still being flared off so oil production could continue, Henry Hale entered into an oral agreement with Jim Cooper, Cotton's Area Superintendent. The jury found that, under the terms of the agreement, Hale could take gas from the Flowers No. 1 well "for any use on the premises he desired, for the life of the oil and gas lease, at no cost to him." Relying on this agreement, Hale constructed an underground pipeline that ran southwesterly about 1,800 feet from Cotton's tank battery to an irrigation well and then southeasterly another 2,000 feet from the irrigation well to Hale's residence. Hale used the gas to operate his irrigation pump and for domestic purposes. This use continued until July 1983 when Cotton terminated Hale's supply.
5
After Cotton terminated Hale's supply of free gas, Hale filed this action in state district court alleging breach of an oral contract and seeking restoration of the gas supply. Cotton removed the action to federal district court and counterclaimed for the value of the gas that Hale had used. A jury found that Hale and Cooper did have an oral agreement allowing Hale to take the gas, free of charge, for any use; but the jury also found that Cooper lacked apparent authority to make such an agreement for Cotton. The jury further found that Cotton did not ratify the agreement, that the agreement was not supported by adequate consideration, and that the value of the gas Hale had used was $5,780. The district court entered judgment against Hale and awarded Cotton $5,780. Following entry of judgment, Hale moved for judgment notwithstanding the verdict. The court denied that motion.
6
On appeal, Hale raises issues addressing the denial of his motion for judgment notwithstanding the verdict and the jury's findings on apparent authority, ratification of the Hale-Cooper agreement, and adequacy of the consideration. In its appellee's brief, Cotton challenges the district court's failure to award it attorney's fees in the event of a successful appeal. While the issues that Hale presents are properly before us, Cotton's issue is not because Cotton failed to file a notice of appeal. Fed.R.App.P. 3(a).
II.
7
Hale argued in his original brief on appeal that the district court erred in denying his motion for judgment notwithstanding the verdict. As the parties recognized by the time of oral argument, this issue is beyond challenge on appeal because Hale failed to move for a directed verdict at the close of all evidence. 5 A Moore's Federal Practice Sec. 50.08 at 50-74. This failure also means that appellate review of the evidence supporting the jury's verdict is limited to the plain error rule--whether there was a manifest miscarriage of justice or whether there is any evidence to support the verdict. Ramada Development Co. v. Rauch, 644 F.2d 1097, 1102 (5th Cir.1981).
8
Hale argues on appeal that there is no evidence to support the jury's finding on Cooper's lack of apparent authority to enter into the oral agreement authorizing Hale's free, indefinite, and unrestricted use of gas. "A prerequisite to a proper finding of apparent authority is evidence of conduct by the principal relied upon by the party asserting the estoppel defense which would lead a reasonably prudent person to believe an agent had authority to act." Ames v. Great Southern Bank, 672 S.W.2d 447, 450 (Tex.1984) (citations omitted). Here, the contract between the Flowers and Cotton's predecessor in interest does not authorize the terms of the oral agreement. Moreover, Cotton had title to the gas, not Cooper. Evidence was also introduced to the effect that Cooper was not a salesman; he had no power to execute gas sales contracts or to give away gas. While we might reach a different result under another standard of review, under the plain error rule we must disagree with Hale: There is evidence to support the jury's finding that Cooper lacked apparent authority to enter into the oral agreement with Hale.
9
We also reject Hale's argument that there is no evidence to support the jury's further finding that Cotton did not ratify the oral agreement between Hale and Cooper. A principal can ratify the unauthorized acts of his agent expressly or by implication, provided that the principal has full knowledge of all material facts concerning the unauthorized act. Bellefonte Underwriters Ins. Co. v. Brown, 663 S.W.2d 562, 580 (Tex.App.--Houston [14th Dist.] 1983), rev'd in part on other grounds, 704 S.W.2d 742 (Tex.1986). In today's case, Cooper testified that when he called Cotton's headquarters to check on Hale's request, he confined his question to whether the Flowers' lease had a domestic use clause. He did not advise Cotton that the gas would be used for irrigation purposes. This is evidence that Cotton did not have full knowledge of all material facts concerning the terms of the oral agreement. Under the plain error rule, Hale's challenge to the jury finding on ratification fails.
III.
10
Our determination that under the plain error rule there is evidence to support the jury's findings on apparent authority and ratification means that we must affirm regardless of whether there is any evidence to support the jury's finding of inadequate consideration. The district court's order of judgment is therefore
11
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1197230/ | 171 Cal. App. 2d 810 (1959)
VIRGINIA O. WILSON, Respondent,
v.
WALLACE E. WILSON, Appellant.
Civ. No. 23562.
California Court of Appeals. Second Dist., Div. One.
July 9, 1959.
F. V. Lopardo for Appellant.
Shatford & Shatford and Henry W. Shatford for Respondent.
LILLIE, J.
Defendant husband, a practicing dentist, was ordered by an interlocutory decree of divorce entered October 9, 1957, to pay each month to plaintiff for alimony the sum of $150, and $150 for each of the three children, totalling $600. Approximately four months later plaintiff filed an order to show cause re contempt charging defendant with a failure to comply with the terms of the decree. On February 18, 1958, he countered with an order to show cause re modification of the order of October 9, 1957, seeking a substantial reduction in the amount of alimony and child support, alleging a change of circumstances. The matter was heard on May *812 22, and the trial court ordered a modification, among other things, reducing the alimony payment to $110, and the support for each child to $110, totalling $440 per month; and additionally providing that defendant pay to plaintiff 50 per cent of all his gross income over $16,335 for each six-month period, or 50 per cent of the amount by which defendant's net income for each such six-month period exceeds $6,625, whichever is greater. The order also included a restriction preventing defendant from permitting his eldest son to be in the presence of any woman to whom defendant is not legally married, unless she be a relative. From these portions of the order defendant appeals.
Appellant argues that the trial judge grossly abused his discretion in making the order, both as to the amount of reduction allowed and the restriction on his visitation rights. He mainly contends he is entitled to a greater reduction of support payments than that allowed.
[1] Appellant concedes the well-settled rule that the trial judge is given a wide discretion in determining a suitable allowance for alimony and child support, having regard for the circumstances of the parties; and that a reviewing court is limited to the question whether the trial court abused its discretion (Whitney v. Whitney, 164 Cal. App. 2d 577, 581 [330 P.2d 947]). [2] In ascertaining whether an abuse occurred, the appellate court can only interfere if it finds that, under all of the evidence viewed most favorably in support of the trial court's action, no judge could reasonably have made the order he did. (Winn v. Winn, 143 Cal. App. 2d 184 [299 P.2d 721]; Simpson v. Simpson, 134 Cal. App. 2d 219 [285 P.2d 313]; Newbauer v. Newbauer, 95 Cal. App. 2d 36 [212 P.2d 240].) With this test in mind we find nothing in the evidence before us from which we could justifiably conclude that no judge could reasonably have made the order in question.
[3] The record discloses that although the property settlement agreement, upon which the order for alimony and child support in the interlocutory decree of divorce was based, was executed in September of 1957, it was not approved by the court until October 9, when, defendant failing to appear and contest the divorce, it was heard as a default matter.
Appellant claims that the property settlement agreement was based solely upon his earnings and expenses then current; but it is apparent from the record that the support provisions of the agreement and subsequent order were predicated, *813 among other things, not only upon his earnings but on all of the property, both real and personal, the parties owned at the time, a substantial amount having been divided by the other terms and conditions of the document. Nevertheless, a close scrutiny of defendant's income and expenses from January 1, 1957, through April, 1958, will disclose a factual situation far from justifying any further reduction of support payments. In this connection it would appear that the nine months (January through September, 1957) immediately prior to the default hearing provide the best indication of the earning power upon which the court approved the property settlement agreement on October 9, 1957.
Defendant submitted to the trial court a statement of his income revealing, for the nine months preceding the court's approval of the property settlement agreement, the total gross cash receipts from his dental practice to be $33,266.36, total expenses $14,407.95, and net income $18,858.41, or an average monthly net income for that period to be approximately $2,095.39. For the four months subsequent to the time the court approved the property settlement agreement (October, 1957, through January, 1958) which immediately preceded February 18, 1958 (when defendant filed his order to show cause re modification alleging a change of circumstances in his income), defendant's gross cash receipts were $10,573.86, total expenses $5,983.62 and net income $4,590.24, establishing an average monthly net income for this four-month period of approximately $1,147.56. And up to the date of the hearing on the order to show cause, May 22, 1958, including the three months of February, March and April of 1958, defendant's gross cash receipts were $7,693.15, total expenses $4,516.62, and net income $3,176.53, or an average monthly net income for the three-month period of approximately $1,058.84.
However, the summary of income data submitted by the defendant discloses several additional items the trial judge no doubt took into consideration in making his order. We point these out, keeping in mind the somewhat seasonal character of the dental practice. Analyzing defendant's own figures, it is clear that the alleged decline in his income did not begin in October of 1957 or thereafter, as claimed by defendant in attempting to establish the change of condition necessary to justify a reduction; but it began in July of 1957, three months before the property settlement agreement was approved by the trial court on October 9, 1957. Even then defendant's *814 gross cash receipts in July, 1957, were within $7.00 of those defendant received in January, 1957, $740.85 more than those in February, 1957, and only $484.15 less than in May, 1957. August and September, 1957, showed a decline in gross cash receipts, but each of those months was higher than the gross cash receipts for October, 1957. It is true there is a decline in net income. However, it appears to be in great part due to a rather sharp rise in expenses which seem to have increased out of all proportion to those during the prior nine-month period. Of interest also is the fact that beginning in March, 1958 (March and April), there was a decided increase in gross cash receipts, from which a trend upward might reasonably be inferred, which well explains the added provision in the modified order for a division of the gross or net income as the case may be for each six-month period upon an increase thereof.
On the other hand, defendant's living expenses decreased $365.63 from the $955.63 he claimed at the time he executed the property settlement agreement, to the present $590 he admitted at the hearing. Accepting defendant's income figures at their face value, between October, 1957, and May, 1958, his average net income per month was approximately $1,109. Out of this the trial judge awarded for the support of plaintiff and the three children the sum of $440, leaving $669 per month available for defendant's living expenses, which he admits amounts to $590. It appears to this court that the amount of reduction in alimony and child support was reasonable and in fair proportion to the alleged loss in defendant's income and the decrease in his living expenses; and that a further reduction would not be justified.
As to the matter of taxes, the trial court without doubt considered not only the variable involved in defendant's living expenses, the $1,300 he has heretofore set aside for payment of income tax, the amount available to defendant each month after the court order has been satisfied, and the increase in his income beginning in March, 1958, but defendant's over-all financial situation, based not alone on his income but on his entire holdings. Unlike the representation appellant makes that the property settlement and the support allowances in the subsequent order of October 9, 1957, were predicated upon his earnings and expenses alone, we find from the evidence and inferences to be reasonably drawn therefrom that the support provisions of the property settlement agreement which gave rise to the order were based upon *815 all of the terms and conditions in the document. A reading of the property settlement agreement discloses that the support covenants therein were based upon, and a part of, all of the provisions of the entire writing, and that there was nothing in the agreement indicating that support was predicated upon only defendant's earnings. It is clear that substantial property of the parties was divided by virtue of the agreement, and that besides his dental practice, including the lease and all dental equipment, furniture and furnishings, defendant retained as his sole and separate property a house and lot at 849 South Glendora, West Covina, furniture and furnishings located therein, a lot in Rancho Estates, West Covina, a 1948 Plymouth automobile, an insurance policy and an account in the Bank of America. Although we do not question the alleged generosity which motivated defendant's execution of the property settlement agreement in the first instance, it is obvious that the parties were not guided entirely by defendant's income and expenses in agreeing to the support provisions in question, but that other factors contributed considerably to a voluntary disposition of their respective rights and obligations at that time. Although the record fails to show that as of the date of hearing appellant had other assets than a car partially paid for, it also fails to disclose, assuming the car to be his only property, how or why, only four months later (when he filed his order to show cause), the substantial assets he received by virtue of the division of property under the settlement agreement had become exhausted.
[4] Appellant further contends that the trial court was guilty of gross abuse of discretion in prohibiting him from having his son with him in the presence of a female companion not his wife or not within the third degree of consanguinity. The evidence viewed in the light most favorable to the trial court's order discloses that when defendant exercised his visitation privileges with the older boy he did not take him to his home but to the beach, parks or Disneyland, and that at times defendant had a lady friend with him. As to how often, the following occurred at the hearing:
"Q. (By Mr. Shatford) One further question. When you do take the boy, isn't it true that generally, say the majority of the times you take the boy, you have some lady friend of yours with you, so that the boy is not with you but he's always with you and someone else? A. Occasionally, not all the time."
"Q. The majority of the time, though, isn't that true, Doctor? A. Well, I wouldn't say the majority of the time." *816
Since there was further evidence that the boy came home from his visits with his father in a nervous and upset condition, it was not only reasonable and proper for the court to restrict defendant's visitation rights in the manner in which it did, but entirely in keeping with the court's first consideration, the welfare of the minor child. Counsel have stipulated that appellant, since the filing of this appeal, has remarried which justifies the assumption on our part that in the future he will confine his female companionship to his wife. From the evidence it is obvious that the order was primarily designed to prevent him from subjecting the boy to the company of his lady friends. Since his field of conquest has been limited by matrimony, and the immediate issue has become moot there appears to be nothing in the record to further justify the restriction.
We find manifest no abuse of the trial court's discretion concerning that portion of its order modifying the alimony and child support payments and affirm that portion of the order appealed from. As to the restriction placed on defendant's visitation rights, for the foregoing reasons that portion of the order is reversed, each party to bear his own costs on appeal.
White, P. J., and Fourt, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/267873/ | 345 F.2d 333
Harriett D. NESBIT et al., Appellants,v.The STATESVILLE CITY BOARD OF EDUCATION, a public bodycorporate of Statesville, North Carolina, and A.D. Kornegay, Superintendent ofStatesville City PublicSchools, Appellees.
No. 9632.
United States Court of Appeals Fourth Circuit.
Argued Nov. 5, 1964.Decided April 7, 1965.
James M. Nabrit, III, New York City, (Conrad O. Pearson, Durham, N.C., J. LeVonne Chambers, Calvin L. Brown, Charlotte, N.C., Jack Greenberg, Derrick A. Bell, Jr., and Melvyn Zarr, New York City, on brief), for appellants.
R. A. Collier, Statesville, N.C. (Collier, Harris & Collier, Statesville, N.C., on brief), for appellees.
Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.
HAYNSWORTH, Circuit Judge:
1
The plaintiffs have appealed from an order approving a plan for the desegregation of the schools in Statesville, North Carolina. Terms of the plan are discoverable only from colloquies between court and counsel on the record in this case. It has not otherwise been reduced to writing, except for the District Judge's description of it in his opinion. In consequence, some uncertainties now appear which require a remand of the case for further findings.
2
There are approximately six thousand pupils in Statesville's schools, one-third of them being Negroes. The schools were completely segregated until 1963 when nine transfer applications by Negroes were approved. After holding public hearings, the School Board decided to grant all transfer applications filed on behalf of first graders and high school pupils, while denying all others.
3
This action was filed by some of the transfer applicants whose requests were denied.
4
At the hearing, it was apparent that the Board had expanded its original approval of permissive transfers limited to the first and high school grades. It there appeared that for the school year 1964-65, free transfers would be allowed within the first six grades. Availability of free transfers would be extended to grades ten through twelve in 1965-66, and to grades seven through nine in 1966-67.1
5
In addition to the provision of free transfers to be accomplished in three successive annual steps, the plan at the hearing appeared to provide also for freedom of choice in initial assignments. There were statements that the parents of a child about to enter the first grade could enroll the child in any school they wished and references to the Board's intention to operate on an 'open enrollment' basis. These led the District Court to the conclusion that the plan provided such freedom of choice as to make it nondiscriminatory and approvable under the principles we reaffirm today in the Richmond case.2
6
Some misunderstanding is evident, however. Counsel for the School Board in this Court refers to the continued use of dual attendance zones. The extent and purpose of their use is unclear, but whatever they may be, dual attendance zones have no place in a freedom of choice system. As we point out in today's decision in the Richmond case, freedom of transfer out of a segregated system is not a sufficient corrective in this Circuit. It must be accompanied by an elimination of discrimination in handling initial assignments.3
7
It may be that the Board's counsel here misunderstands the Board's intentions. What has been said in the oral argument in this Court seems inconsistent with the general impression the record gives the reader. The record, however, is indefinite. It is singularly unspecific about the assignment of new pupils coming into the system above the first grade level. It is even possible that the statement that the parents of a firstgrader may enroll him in any school they choose is referable to the unrestricted right of transfer. The general references to an 'open enrollment' plan cannot resolve these uncertainties which are made apparent by the statements of counsel here.
8
Since these uncertainties cannot be resolved by reference to the present record, we cannot determine the correctness of the District Court's conclusion that the Board's plan is a valid, voluntary one. Such a determination can be made only after a further hearing and upon additional findings. For that purpose, the case will be remanded.
9
In view of the uncertainties that have now become apparent, the District Court may wish to consider the appropriateness of a requirement that the School Board, in advance of the hearing, reduce its plan to writing and file it with the Court. A carefully prepared, accurate description of the plan with such specificity as to resolve those uncertainties which are now apparent and all others of a like nature may materially facilitate final disposition of the case. It may also furnish a firmer basis for confident judgment of the Board's intentions.
10
The opinion in the Richmond school case, as supplemented here, sufficiently presents the principles by which the Board's plan is to be measured.
11
The District Court also may wish to give further consideration to the plan's three-step progression.
12
In other Circuits, stair-step plans for desegregation of the schools have been repeatedly approved. Atlanta's twelve-step plan was approved little more than a year ago.4 Undoubtedly, there is a discretionary area within which a District Judge may allow some delay in full implementation of desegregation in some schools or grades. But permissible delay must arise out of administrative problems and operational difficulties, and the passage of time has contracted the discretionary area.5 After the Supreme Court's opinion in Calhoun v. Latimer and in light of the earlier cases cited there, present requests for extended delay are not likely to receive approval anywhere.
13
A three-year progression in which half of the grades are opened the first year may well be within the restricted discretion which still remains in a District Court. We are not prepared to say that the District Court's approval of it here was beyond his discretionary authority.
14
When the District Court acted, however, it and the School Board had only the experience of 1963-64 to guide it. Earlier, it had not indicated a disposition to grant transfer applications, but for that year it received a number of requests. It granted nine of them in the levels of the first and high school grades. Since then the Board has had the benefit of its experience with transfer applications for the 1964-65 school year. Those for that year in the first six grades were received after the Board had announced its intention to grant all such requests. Certainly that experience will have shed new light on the nature and extent of the schools' problems and difficulties. In that light, the need to postpone to 1966-67 free transfers in the junior high schools, which will be mixed to some extent in 1965-66 by reason of the promotion of sixth grade pupils, ought to be re-examined.
15
For these purposes, the judgment below will be vacated and the case remanded for further proceedings.
16
Vacated and remanded.
17
SOBELOFF and J. SPENCER BELL, Circuit Judges (concurring separately):
18
We concur generally, and for a more complete expression of our views as to the proceedings appropriately to be taken on remand, we refer to our separate opinion in Bradley v. School Board of City of Richmond, 4 Cir., 345 F.2d 310, decided today.
1
A Negro child in the sixth grade in 1964-65, actually transferred in accordance with the plan, will go on to junior high school with his white classmates, though, under the plan, transfers in grade seven are not allowable in 1965-66
2
Bradley v. School Board of Richmond, Virginia, 4 Cir., 345 F.2d 310 (decided today)
3
When a District Court has before it no plan which it can approve with or without modification, an order requiring free allowance of transfer requests may be appropriate as an interim judicial step. See Wheeler v. Durham City Board of Education, 4 Cir., 309 F.2d 630, and Jeffers v. Whitley, 4 Cir., 309 F.2d 621. When a school board seeks the Court's approval of a plan proffered as being in complete compliance with the law's requirements, however, a court ought not put its stamp of approval upon it if initial assignments are both racial and compulsory
4
Calhoun v. Latimer, 5 Cir., 321 F.2d 302
5
Calhoun v. Latimer, 377 U.S. 263, 84 S. Ct. 1235, 12 L. Ed. 2d 288 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1197234/ | 80 Wyo. 265 (1959)
341 P.2d 85
In the Matter of the Appeal of Virgil SANDERS, an Elector and Taxpayer of Byron High School, State of Wyoming, from a Decision of the District Boundary Board of Big Horn County, Wyoming, Dated February 17, 1958. Virgil SANDERS, Appellant (Plaintiff and Appellant below),
v.
Frank H. BROWN, Dan B. Cropsey, Bliss Bayne, Patra Keele and May D. Shoemaker, as members of The District Boundary Board of Big Horn County, Wyoming, Appellees (Defendants and Appellees below).
No. 2885.
Supreme Court of Wyoming.
June 23, 1959.
*267 J.D. Fitzstephens, Cody (Goppert & Fitzstephens, Cody, on the brief), for appellant.
John O. Callahan, Basin, for appellees.
Robert A. Meyer, Casper, amicus curiae for Ohio Oil Co.
Before BLUME, C.J., and PARKER and HARNSBERGER, JJ.
*266 OPINION.
Mr. Chief Justice BLUME delivered the opinion of the court.
On February 17, 1958, the school District Boundary Board of Big Horn County, Wyoming, consisting of the Board of County Commissioners, the County Treasurer and the County Superintendent, by a vote of three to two undertook to consolidate the Lovell, Cowley and Byron school districts and the Byron High School District, establishing a new district numbered 58. Virgil Sanders, plaintiff and appellant herein, a resident and taxpayer of Byron High School District, appealed from the order of the boundary board, alleging that the action was illegal and without jurisdiction. The district court held the action of the board to be legal and with jurisdiction.
*270 The only question argued and submitted to this court is as to whether or not the district boundary board had jurisdiction to consolidate the Byron High School District with the other districts. We agree with the contention of the plaintiff and appellant Sanders for the reasons hereafter stated.
The boundary board claims to have jurisdiction in-so far as the Byron High School District is concerned under § 67-701, W.C.S. 1945, as amended by § 15, Ch. 119, S.L. of Wyoming, 1955, which, insofar as material herein, reads as follows:
"The County Superintendent of Schools, the County Treasurer, and the Board of County Commissioners shall constitute a board for laying off their county into convenient school districts, such board to be styled `the district boundary board.' Said board by a majority vote may divide the county into school districts, may alter and change the boundaries of the districts so formed from time to time and may at any time consolidate entire districts, or portions of districts, when, in the opinion of such board such changes, alterations or consolidations may be justified by existing circumstances and conditions * * *." (Emphasis supplied.)
It may be noted that under this provision the board forms the school districts in a county and may change the boundaries of the districts, including consolidation thereof, when so formed. In other words, the power of the board here mentioned is limited and applies only to the districts which are formed by it. So we must inquire as to whether or not the board may establish and form a high school district in a county. In that connection we should bear in mind the rule stated in 78 C.J.S. Schools and School Districts § 99, pp. 846, 847, as follows:
*271 "A county board of education or of school trustees, or a like body, may exercise any powers authorized by law. It has, in general, only such powers as are expressly or directly conferred on it by constitutional or statutory provision or powers which are necessarily incidental to those expressly conferred, or only those powers which are expressly or impliedly given by statute, and it can exercise its powers only in the manner authorized by statute. The powers of such a board are not to be extended by construction, and, where the right of the board to exercise authority is doubtful, such authority should not be exercised by it."
See also School Dist. No. 14 in Fremont County v. School Dist. No. 21 in Fremont County, 51 Wyo. 370, 67 P.2d 192, 195, 71 P.2d 137. No express power is given by § 67-701 to form a high school district and we do not think that the power to do so is implied in view of the fact that we have an express statutory provision in connection with the formation of high school districts.
Provisions for the organization of high school districts are contained in §§ 67-901 through 67-936, W.C.S. 1945 (1957 Cum.Pocket Supp.) and §§ 67-1101 through 67-1104, W.C.S. 1945, containing some 40 sections in all. Section 67-901 provides as follows:
"For the purpose of affording better educational facilities for pupils more advanced than the studies provided in the district schools existing in the several counties in this State, and in addition to such school districts as are now organized, or which may hereafter be formed under the laws for the creation and formation of the same, there may be organized and established a high school district and a free high school therein, on conditions and in the manner hereinafter prescribed, the territorial extent of which may embrace any *272 number of present organized and constituted school districts, the qualified electors of which may vote to become a part of such high school district and participate in the maintenance and benefits of such high school organization."
It may be noted that these high school districts are established in addition to other school districts and these other school districts are probably those to which reference is made in § 67-701. The Act relating to high school districts provides for the organization by petition and vote by ballot. Its name is ____ High School District instead of ____ School District as is true in connection with other districts. Full provision is made for the conduct of the election. The number of trustees is six instead of three as in other school districts. The statutes provide for the location of the high school, for tax levies, for the issuance of bonds and payment thereof, for the collection of taxes, for the erection of suitable high school buildings, for the employment of a faculty, for annexation of territory to the high school district already created, and for the withdrawal of territory therefrom. In other words, the statutes relating to high school districts are complete in themselves and provide for all proper and necessary matters in connection therewith. Hence, we must adopt herein the ordinary rules of construction of statutes. In the case of State ex rel. Mellinger v. Throckmorton, 169 Kan. 481, 219 P.2d 413, 417, the court stated:
"It is clear that the legislature intended by the mentioned acts to provide separate methods for the formation and alteration of school districts lying wholly within a county and joint school districts lying in two or more counties. It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence *273 over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. This rule is applicable here. * * *"
In 50 Am.Jur. Statutes, § 367, p. 371, it is stated:
"It is an old and familiar principle, closely related to the rule that where an act contains special provisions they must be read as exceptions to a general provision in a separate earlier or subsequent act, that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision. * * *"
In the case of Public Service Co. of Oklahoma v. Parkinson, 193 Okl. 112, 141 P.2d 586, 590, certiorari denied 320 U.S. 776, 64 S. Ct. 90, 88 L. Ed. 465, it is held that when a statute provides for a separate independent school district, that fact argues strongly against the theory that such a district can be disorganized under the subsequent section by annexation to another independent district.
We think these rules are controlling herein. It may be noted that the creation of a high school district and annexation thereto or separation of territory therefrom are all made by the vote of the people interested, and we hardly think that the legislature intended that the voice of the people expressed in an election should be nullified by the actions of a few individuals constituting *274 the boundary board. If the contention of the boundary board were correct, it is very clear that the people might vote to create a high school district in one day and the boundary board could consolidate it or divide it, changing the boundaries, the very next day. That is so unusual a situation that we cannot believe that such was the intention of the legislature. In 1947 the legislature by Ch. 163 of the Session Laws of that year provided for the reorganization of school districts. It may be noted that by § 10 of that Act it is provided that whatever reorganization is made must be approved by the vote of the people. We need not determine the applicability of that legislation in the case at bar, but the fact that the legislation provided for approval by the electors would emphasize the fact that the legislature has generally preferred to have the electors determine their own destiny in school matters rather than to have the members of the boundary board do so for them.
Counsel for the appellees cites us to § 67-915 which states, among other things, that a high school district "shall be recognized as one of the regular constituted school districts of the county, and shall be entitled to and shall receive all the rights and benefits as such." Counsel contends that this provision shows that the boundary board has jurisdiction in this matter under § 67-701. A high school district is of course a school district, but that does not mean that it is subject to the same provisions as other districts. Section 67-915 apparently was enacted for the specific purpose that a high school district should receive all the rights and benefits of other school districts as, for instance, a portion of the funds distributed by the state to the various school districts. Counsel for appellees also cites us to Ericksen v. School District No. 2 of Natrona *275 County, 67 Wyo. 216, 217 P.2d 887. That case refers to the limitation of bonded indebtedness of a high school district and has no bearing in the case at bar.
We might mention the fact that the identical question now before the court came before the Honorable Louis J. O'Marr, Attorney General, on July 13, 1944. In that case he was requested to answer the question "Does the County Boundary Board have the authority to change the boundary of an organized High School District?" His answer was as follows:
"My answer to the first question must be in the negative, for High School Districts are organized by petition by freeholders of districts to be included in the high school district followed by an election. Annexation of school districts to high school districts and the withdrawal of school districts from high school districts are also provided for but, as in the original formation, annexations and withdrawals must be by petition and a vote of the electors. (Article 5 of Chapter 99, Wyoming Revised Statutes, 1931, as amended). It will be seen from the above that high school districts are governed by special laws and, therefore, district boundary boards have no jurisdiction over the boundaries of such districts." Opinions of the Attorney General of the State of Wyoming, 1941-1947, p. 516.
The legislature did not change the law in any respect material here after the foregoing opinion was rendered, so that it apparently acquiesced in the opinion, which deserves some consideration on the part of this court in considering the intention of that body. We think that Attorney General O'Marr was correct.
The judgment of the district court is reversed.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1197251/ | 341 P.2d 258 (1959)
Homer H. DUNLAP and Helen R. Dunlap, Plaintiffs in Error,
v.
Julia Fisher MAYER, Mary Margaret Ray, John Mayer and Elizabeth Ann Sullivan, Defendants in Error.
No. 38128.
Supreme Court of Oklahoma.
June 23, 1959.
F.M. Bookstore, Oklahoma City, for plaintiffs in error.
Eugene P. Ledbetter, Jr., Oklahoma City, for defendants in error.
BLACKBIRD, Justice.
This appeal involves a controversy over the ownership of land lying in the North Canadian river bottom, in Oklahoma City. It is described as Lots 1, 2, and 3, Block 9 of the Patrick-Pottenger Addition to the said City, but no lots, blocks and streets have ever actually been laid out, or marked off, thereon; and it has always looked like, and been used as, a rural tract.
*259 Plaintiffs in error and defendants in error will hereinafter be referred to as plaintiffs and defendants, respectively, as they appeared in the trial court.
For many years, the three lots in question have been included in the same fenced enclosure with a much larger tract consisting of numerous lots in the same addition that one Homer H. Dunlap, Sr., father of the plaintiff, acquired by quitclaim deed executed in December, 1932, by one J.D. Edmiston and his wife. Edmiston and his wife obtained their title through a quitclaim deed previously executed and delivered to Edmiston by Fred T. Hotze and his wife, M.V. Hotze, in July of the same year. Neither of said quitclaim deeds contained any specific reference to, or description of, the lots involved in this action, but, after listing numerous other lots in the same addition by lot and block numbers, both deeds set forth the following recital: "* * * the parties of the first part are quitclaiming all their interest of what so ever nature in the entire Pattrick Pottenger Addition to Oklahoma City, Oklahoma."
During the period between the above mentioned date of December, 1932, and the elder Dunlap's death in February, 1935, the father leased the lots in question, along with lots specifically described in said deed, to one Blevins, for agricultural purposes; and, since the father's death, his plaintiff son has continued the practice of leasing such lots together as one tract.
When taxes became delinquent on the three lots, they were sold to the county, and, in 1944, resold at tax resale to John Mayer, father of, and predecessor in title to, the defendants. Thereafter, the elder Mayer, in December, 1947, instituted an action docketed as the District Court's Cause No. 116979, in which he obtained a judgment in March, 1948, quieting his title to the lots in question (on the basis of his resale deed), and to some others in the same addition. Purported individuals referred to as "M.V. Holtze" and "Fred T. Holtze" were made parties to this action and included in the service by publication, but no appearance was entered or pleading filed on their behalf. Since the hereinbefore mentioned deeds from the Hotzes to Edmiston and from the Edmistons to Homer Dunlap, contained no description of the lots in question by lot and block number, no reference was made to them in the deed indexes and records of the County Clerk's office pertaining to these lots. Consequently, it is not surprising that the grantees named in neither of said deeds were made parties to said quiet title action.
In 1954, plaintiffs instituted a quiet title action as to a large number of lots they allegedly owned in the Patrick-Pottenger Addition, including the three involved here. Later, in 1957, plaintiffs' cause of action, in so far as it involved these three lots was, by court order (consented to by the parties) separated from the original action and docketed under a different number and style. This latter action is the one out of which this appeal arose.
At the trial of this cause, the title plaintiffs attempted to establish was what they refer to as a "prescriptive" one. Their theory was that they, and their predecessor in title, had been in exclusive, adverse possession of the lots more than fifteen years next preceding the filing of the action. The writing which they relied upon to furnish them the "color of title" for prescription was the hereinbefore quoted recital in the deed from the Hotzes to Edmiston and from Edmiston to their predecessor, tending to represent that the grantors in said deeds were thereby conveying "* * * all of their interest of what so ever nature in the entire Pattrick Pottenger Addition * * *" (whether described or not).
There was no conveyance, or commonly recognized muniment of title, introduced in evidence to show that either of said parties was ever the owner of the three lots in question.
The defendants proved, without contradiction, that they and their predecessor in title had paid the taxes on the lots since the predecessor obtained the hereinbefore mentioned resale deed. They took the position that there was no prescriptive title perfected *260 by plaintiffs either before or after the issuance of said deed; and, in their answer, prayed not only that plaintiffs take nothing by their action, but that their (defendants') title be quieted against plaintiffs' claims.
At the close of the trial, the court entered judgment finding "the issues of law and fact * * * against the plaintiffs and in favor of the defendants; * * *". The decretal portion of the judgment, however, consists merely of the following:
"It is therefore ordered adjudged, and decreed that the petition of the plaintiffs should be denied and the defendants discharged with their costs."
After the overruling of their motion for a new trial, plaintiffs perfected the present appeal.
Plaintiffs' argument for reversal is advanced under three propositions, and is directed principally toward alleged defects in defendants' title. They attempt to show that, in order for defendants to have been entitled to have their title quieted, they should have brought an action for that purpose, in which plaintiffs were made parties, within two years after the recording of their tax resale deed under Tit. 12, O.S. 1941 § 93, sub-sec. 3, or within five years after said recording under the 1949 Amendment of said Statute (Tit. 12 Ohio St. 1951 § 93, sub-sec. 3); and that, having failed to do so, they cannot now correctly prevail in such an action. Their Proposition II reads as follows:
"Possession is necessary to maintain a quiet title action and possession alone if accompanied by a claim of right is sufficient to maintain a quiet title action against one with an inferior interest."
In support of their general position that possession is essential to a cause of action for quieting title and that defendants must have obtained possession in some lawful manner such as an action of ejectment filed against plaintiffs within one of the limitation periods above mentioned, plaintiffs rely primarily on Lane v. Bass, 193 Okl. 682, 146 P.2d 563, and Magnolia Pet. Co. v. Ball, 203 Okl. 514, 223 P.2d 136.
The fatal flaw in plaintiffs' position, as pointed out by defendants, is that the judgment appealed from in the present case is no adjudication as to any cause of action defendants may, or may not, have had for quieting their title. It awards defendants no affirmative relief. It merely refuses plaintiffs such relief in accord with the principle requiring such parties, in order to obtain judgment in a statutory quiet title action, to prevail on the strength of their own title rather than the weakness of their adversaries'. See Robertson v. Knighten, 192 Okl. 678, 139 P.2d 601.
Assuming, without deciding, that plaintiffs' position, as stated in their above quoted Proposition II, is correct as an abstract proposition, they completed no period of continuous adverse occupancy of the lots in question for the necessary fifteen years between defendants' muniment of title the resale deed of 1944 and the trial of this cause in the year 1957. In Kasner v. Wilson, 202 Okl. 497, 215 P.2d 833, we held:
"A valid resale tax deed divests former owners of all their right, title and interest in the land, and vests in the purchaser an absolute and perfect title in fee simple. The term `former owners', as used in this connection, includes not only the former owners of record but also includes all persons claiming an interest in the property by prescription, and claims based upon prior occupancy are extinguished by the resale tax deed and cannot ripen into title by limitations by virtue of continued occupancy for less than fifteen years after date of resale tax deed." (Emphasis ours.)
That decision seems to be in accord with a majority of those in jurisdictions where delinquent ad valorem taxes are a charge against the property only. See the Annotation at 50 A.L.R. 2d 600, 604, 605.
*261 In view of the foregoing, we find none of plaintiffs' arguments sufficient to demonstrate error in the judgment appealed from. It is therefore affirmed.
DAVISON, C.J., WILLIAMS, V.C.J., and HALLEY, JOHNSON, JACKSON and IRWIN, JJ., concur.
BERRY, J., concurs in result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/267875/ | 345 F.2d 337
Raymond A. RANK et al., Appellants,v.UNITED STATES of America, Appellee.
No. 21257.
United States Court of Appeals Fifth Circuit.
May 4, 1965.
William P. Fonville, Dallas, Tex., James F. Hoge, Jr., Fort Worth, Tex., for appellants.
Myron C. Brown, Atty., Dept. of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., H. Barefoot Sanders, U. S. Atty., Dallas, Tex., David O. Walter, Michael I. Smith, Attys., Dept. of Justice, Washington D. C., for appellee.
Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.
JOHN R. BROWN, Circuit Judge:
1
This case presents the question whether the gain received by the Taxpayer-Optionee on the assignment back to the Employer-Optioner of the unexercised option granted as a compensatory restricted stock option is taxable as capital gain when a transfer of the underlying stock at such time would have been a disqualifying disposition subjecting the proceeds to treatment as ordinary income. In rejecting the Taxpayer's appeal, we agree with the District Court that the gain is ordinary income.
2
The facts are neither complex nor conflicting. And the case comes to us, as it did below, on stipulated facts which we repeat or paraphrase.
3
The Taxpayer1 was an employee of Southern,2 the optionor. Southern's business was the production and sale of oil, natural gas, and gas distillates. In December 1950, Southern acquired Danciger Oil and Refining Company and substantially all of the personnel of Danciger. Danciger was a much larger company than Southern, with substantially larger reserves. It was vital to Southern that most of the former Danciger personnel remain with Southern. However, Danciger personnel had been allowed to deal in oil and gas leases and royalties outside the scope of their employment, and this practice was forbidden by Southern. In order to give the Danciger personnel a proprietary interest in Southern, and to induce them to remain with Southern a restricted stock option plan was made available to the former Danciger employees, as well as to Southern employees who had not participated in an earlier qualified restricted stock option plan of Southern.3
4
The stock option plan was approved by the stockholders of Southern on May 7, 1952. Under the plan 125,000 shares of the company's Unissued common stock were made available to employees of the company under provisions which qualified as restricted stock options under § 130A of the Internal Revenue Code of 1939.4
5
Restricted stock options under the plan were issued on May 8, 1952 to Taxpayer.5 The option price was the fair market value of the common stock of Southern on that date ($532.50). None of the Taxpayers exercised his option.
6
During the summer of 1956 the Board of Directors of Southern authorized negotiations with Sinclair Oil and Gas Company for the sale of its properties. The sale was made. On July 23, 1956, Southern announced the sale of its assets to Sinclair and its intention to comply with § 337 of the Internal Revenue Code of 1954. On August 10, 1956, a plan of complete liquidation was adopted by the Board of Directors of Southern. On October 11, 1956, at a special meeting of its stockholders, a plan of complete liquidation of Southern was approved.
7
On October 11, 1956, there were options outstanding covering 98,960 shares under the restricted stock option plan.6 These outstanding stock options represented a problem to Southern, in that in order to qualify for the tax treatment of gains on complete liquidation of a corporation, under § 337 all of the assets of the corporation, less assets retained to meet claims, had to be distributed within one year from the date of the adoption of the plan of liquidation. The existence of these outstanding stock options represented a potential barrier to such complete liquidation within a one-year period. For the purpose of eliminating the options and avoiding thereby possible litigation which would have prevented or delayed the orderly liquidation of Southern within the one-year period, the Board of Directors of Southern authorized the acquisition by Southern of optionees' rights under the outstanding restricted stock options at a price of $11.25 per share.7
8
The holders of all of the outstanding options accepted this offer, and their options were sold to Southern by contracts dated October 25, 1956.8
9
The liquidation was consummated, the options acquired by Southern, and the agreed consideration paid by it.9
10
Thereafter the Revenue Service determined that the gain was taxable as ordinary income, not capital gains. After timely claim by each of the Taxpayers, the denial thereof, and payment of the disputed taxes, this refund suit was timely filed.
11
The District Judge on these stipulated facts, and one possible excursion into fact finding on his own,10 held that the Commissioner's determination was correct, and that the gains received from the sale of these options should be treated as ordinary income in the years in which received.
12
At the outset, it bears emphasis that had the stock been issued at this time and then sold — either to a third party or back to the corporation — the very same gains would clearly have been ordinary income since the stock would not have been held the requisite six months to qualify as a statutory restricted stock option.11 In other words, extinguishing for a consideration the option with its carefully built-in statutory restrictions would, in practical effect, enable the parties to obtain the immediate income tax benefit free of the very conditions prescribed by Congress in this area of high controversy.12 Of course we recognize that failure to satisfy the requirements of a statutory restricted stock option or the even more stringent contemporary qualified stock option13 does not necessarily condemn gain to the unfavored, unwanted, more expensive ordinary income category. There are option plans which either by chance, neglect, accident, or choice are non-restricted. Their utility and tax incidents are the subject of extensive, sometimes hopeful, sometimes despairing writings.14 But they are not for our decision now, and we readily leave these intriguing problems to another day.
13
We may do that because Taxpayer in seeking to justify capital gains treatment does not take the route of a non-restricted stock option. Rather, Taxpayer recognizes that this was in form a restricted stock option plan. The capital gains here sought are justified, not on the ground of compliance with that plan, nor as authorized effective modifications of it,15 but because the stock was never acquired, the option was never exercised, and on the contrary the option was sold.
14
Taxpayer's theory, as near as we can grasp it, runs this way. Options are property16 and come within the definition of capital asset.17 Since Taxpayer was not a dealer in options and it is undisputed that these options were held for more than four years, the gain on sale qualifies for long term capital gain treatment.18 And contrary to the contention of the Government here and below and the holding of the trial court, Commissioner v. LoBue, 1956, 351 U.S. 243, 76 S. Ct. 800, 100 L. Ed. 1142,19 does not prevent capital gains treatment. This case, as did those following it,20 held that it was the transfer of the stock to the employee for less than its full market value which conferred the benefit intended as compensation to the employee. Compensation, as such, must, of course, be taxed, but the compensation there involved was not in the grant of the option, but rather in the transfer of the stock pursuant to it. Upon a correct reading of such cases, the employer's intention to compensate was the purpose of transferring the stock. In no other way could the intention to compensate be made effective since the options themselves had no value.
15
Here, however — so the argument continues — no such purpose existed. The trial Court's finding that the stock options were compensation to the plaintiffs is unsupported, contradictory, and contrary to the stipulated facts. This is so because the Court also found the "options had no ascertainable market value at the time they were granted" (see note 10, supra), and it was stipulated by the parties that the purpose of the purchase of the options was to enable the Employer to eliminate the options and avoid these impediments to its liquidation within the required one-year period.21 Additionally, the Trial Court's finding is wholly unacceptable because if the options themselves were compensation, the initial stock option plan could not have qualified as the statutory restricted stock option which it was and was stipulated to be.
16
And finally, so the argument runs, had Taxpayer exercised the option and acquired the stock, the stock would have been a capital asset in his hands. Under § 1234, as it then existed, capital gains would be acccorded when received from the sale of the underlying option.22
17
We think that in emphasizing the Employer's purpose as between compensating employees, on the one hand, and avoidance of impediments to a § 337 liquidation, on the other, Taxpayer confuses the time for determination of that purpose and the value of the option at any such moment. In other words, for the intention to compensate to be fulfilled, there must be value, so it is the time when demonstrable value exists that likewise measures intention. But the Court in LoBue did not begin even remotely to suggest that merely because the options, with their built-in restrictions, had no "ascertainable market value,"23 the employer had no purpose to compensate the employees at the time the options were granted. On the contrary, in rejecting application of the normal rule that a mere "purchase of property * * * at a bargain price" gives "rise to no taxable gain in the year of purchase,"23 the Court described the option plan as "an arrangement by which an employer transferred valuable property to his employees in recognition of their services."23 From the very outset, compensation was a significant, if not the only, purpose. It was the result of this arrangement that "LoBue received a very substantial economic and financial benefit from his employer prompted by the employer's desire to get better work from him."23 In declaring that "When assets are transferred by an employer to an employee to secure better services they are plainly compensation,"23 the Court did not ignore the option. Indeed, it was the arrangement by which the subsequent transfer came into reality. And it was not the less an operative fact because, by reason of the contingencies, the option itself then had no value.
18
The result is that Taxpayer's emphasis upon the Employer's purpose offers no help. Clearly, the stipulated facts demonstrate that the Employer's dominant motive in granting the options in 1952 was almost altogether a compensatory one. It was a way to make newly absorbed Danciger employees happy despite the loss of their former outside oil trading privileges. And as to others, it equalized stock acquisition rights among former employees. Since it was the purpose to compensate at the time the options were granted, it matters not what the motive was for putting an end to those options. The options being compensatory in purpose, either the option or the fruits of the option must be treated as compensation and taxed accordingly unless — and the unless is a big one — there is compliance with statutory procedures which ameliorate those tax consequences.
19
Application of these principles is fatal to the Taxpayer's appeal. There is, first, no doubt as a business-operative-fact that the payments made by the Employer in 1956 were the direct consequence of the existence of the option. It is further clear that the Employer looked upon these as perfectly valid obligations. The payments were in no sense an effort to compromise troublesome, doubtful claims or nuisance controversies. To the contrary, the payments represented an honest effort to give to the employee 100% of the value he would get had the stock been issued, held and then surrendered in the § 337 liquidation. In short, the money represented the net value of the stock after deducting the option price.
20
Of course ever since LoBue it has been unquestioned that, except for statutory alleviation, when a compensatory option has no ascertainable market value as of the time of grant, the receipt of fruits of the option when exercised, fixes the time and measures the value of the economic benefit intended to be, and now, conferred upon the employee. Thus under Commissioner v. Smith, 1945, 324 U.S. 177, 65 S. Ct. 591, 89 L. Ed. 830, and LoBue, the value of the stock received by the exercise of the option was treated as ordinary income and subject to taxation as such.
21
And whatever the conceptual shortcomings might be to a theory which attributes to a right then having no ascertainable value the value of its fruits when and as they acquire demonstrable worth, it makes tax sense if not common sense, Steinhort v. Commissioner, 5 Cir., 1964, 335 F.2d 496, and in any event it makes congressional sense since Congress gave its imprimatur to this approach in the legislation enacted to ameliorate the consequences of the Supreme Court decisions. As all know, LoBue gave operative effect to the "uniform Treasury practice * * * to measure the compensation to employees given" contingent "stock options * * * by the difference between the option price and the market value of the shares at the time the option is exercised. 351 U.S. at 249, 76 S.Ct. at 804. True, Congress did not ordain that this would be the invariable consequence. But it did declare that if an employee to whom "a share of stock is transferred * * * pursuant to his exercise" of a stock option sought the preferential treatment of § 421(a) (1) which prescribes that "no income shall result at the time of the transfer of such share," it is necessary that the option first qualify as a "restricted stock option" and the stock not be disposed of within "six months after the transfer." § 421(a), (f).
22
All of this seems doubly sure when considered in the light of § 1234, so earnestly but unsuccessfully pressed by Taxpayer. And it is not enough, as does the Taxpayer on brief, to rely on § 1234 "as it then existed" on October 25, 1956, nor to question the validity of the September 25, 1957 regulations.24 For the fact is that § 1234 was amended by the Technical Amendments Act of 1958 and made expressly retroactive to years prior to 1956.25
23
Equally important, the legislative history eliminates all doubt that the attention of Congress was once again focused on this highly complex, if not controversial, question of employee stock options. The Amendments first restructured the opening subparagraph to carry out the intent of the 1954 changes that "gain or loss attributable to an option to buy or sell property which would not be a capital asset in the hands of the taxpayer would result in ordinary income or loss rather than capital gain or loss."26 Through the nonapplication section it then excluded the benefits of § 1234(a) in specific areas. In excluding from the benefits of § 1234(a) "any income derived in connection with such privilege or option which, without regard to this section, is treated as other than gain from the sale or exchange of a capital asset," (Par.(c) (2), note 25, supra) the committee reports spelled out the purpose to exclude employee compensatory stock options.27 Additionally, subpar. (c)(2) is structured, not in terms of the "character" of the property — a capital or a non-capital asset as in subpar. (a). Rather, it is expressed in terms of "income derived in connection with such * * * option which, without regard" to § 1234 for purposes of taxation "is treated as other than gain from the sale * * * of a capital asset." When, to the express language of the committee report spelled out in plain terms of this immediate problem (see note 27, supra), there is added the structure which speaks in terms of tax consequences, not status of property, it becomes quite plain we think that the conflict between subpar. (c) (4) and (c) (2) is more apparent than real. It is inconceivable to us that Congress would extend under (c) (4) the benefit of § 1234 to pre-1954 compensatory employee stock options having no ascertainable market value, after denying benefits to them under (c) (2).
24
As we have earlier stated, we do not rule out the possibility that prefectly valid nonrestricted stock option plans can be effected which afford to employees the much sought after benefit of capital gains.28 The Regulations whose validity we do not here examine, now specifically take cognizance of nonrestricted, non-qualifying stock options and undertake to distinguish tax consequences as to options having or not having a "readily ascertainable market value" at the time of grant.29 But it would be making the silk purse out of the sow's ear, if not performing the alchemist's feat, Duncan v. United States, 5 Cir., 1957, 247 F.2d 845, 848, to attribute capital gain treatment to the proceeds received for the extinguishment of an option where the fruits of such option then legally obtainable, if received and translated into the same cash at that very moment, would have been treated as ordinary income. Whatever deficiencies there might be in the express terminology of the statutory mechanism for privileged stock options, we are satisfied that when these and the sections of the Code covering income and affording the preferred status of capital gain are matched together, no one could attribute to Congress any such incongruous result.30
25
Affirmed.
Notes:
1
For convenience we refer to Taxpayer in the singular. Actually 11 employees (and their wives) are involved
2
Southern Production Company
3
Of the 11 employees here involved (note 1, supra), 8 were former Danciger employees
4
The stock option plan provided that:
(a) The option price per share must be the market value on the date granted and payment upon the exercise of the option was to be made in cash.
(b) The period of each option was for five years from the date granted and they were exercisable not sooner than one year after the grant of the option.
(c) The option expired upon voluntary termination of employment and three months after involuntary termination of employment.
(d) The stock acquired upon exercise of an option was to be restricted against sale or other disposition for a period of six months after acquisition of the stock, or two years after the date of the option, whichever was later.
(e) The options were nontransferable.
5
For the 11 employees, the number of shares totaled 49,820
6
As will later appear, Taxpayer stresses the facts summarized from this point to note 8, infra, as showing noncompensatory motive. See note 21, infra
7
The price of $11.25 per share amounted to the difference between the liquidation value of the share of common stock of Southern and the price at which a share of such common stock could be purchased under the option
8
The contract prescribed payment dates in 1956 and 1957. The contract recited the plan of liquidation effective November 1, 1956, and that the "Employee's employment by [Southern] terminated on said date" and the offer to "acquire the Employee's stock option * * * thereby extinguishing all rights thereunder." It then provided:
"1. The Employee hereby sells, assigns, transfers and sets over to the Company the Employee's stock option to purchase * * * shares of stock * * * in consideration of the payment by the Company to him of [$11.25 per share] * * *.
"2. The Employee hereby represents and warrants to the Company that he is the owner of the aforesaid option, that he has not transferred or attempted to transfer or encumber the option in any manner and that, upon receipt of the payment provided in paragraph 1, all of his rights under the stock option will be extinguished.
* * *
"4. This agreement shall be null and void if the sales to be made on November 1, 1956 are not consummated."
9
The procedure was described in the stipulation as follows:
"The Board of Directors of Southern determined that the company would withhold income tax on the payments made by it to the option holders on the purchase of their restricted stock options on advice of counsel that it was not incumbent upon the company to determine the tax status of the payments made to the option holders in the hands of the recipients of such payments and that the company, to avoid possible controversy with the Internal Revenue Service, should adopt the ultra conservative approach of subjecting these payments to withholding. In its final income tax return, Southern showed the payments to the option holders for their options under the classification of other expense as `Employees' Stock Option Payments', totaling $1,110,262.00. The stock option payments were not reported in such return as salary or wages. If the entire amount of such payments had been disallowed to Southern as an expense, no tax would have resulted. The final income tax return of Southern was examined by the Internal Revenue Service, and no deficiency was determined."
10
Finding No. "20. These options had no ascertainable market value at the time they were granted."
With or without the presumptive correctness of the Commissioner's implied finding, no other result could have been reached in view of the severe limitations in the option (see note 4, supra).
11
§ 421(f), 1954 Code; formerly § 130A (a), 1939 Code, as added by Revenue Act of 1950, § 218(a), 64 Stat. 942. See Treas.Reg. § 1.421-5(a) (2), (b), and (c); Schlesinger, Selected Problems in the Use of Restricted Stock Options, 36 Taxes 709, 718 (1958); Aidinoff, Employee and Non-Employee Stock Options: Recent Developments, 22 NYU Inst.Fed. Tax. 167, 176 (1964); 1 Mertens, Law of Federal Income Taxation § 6.18 at p. 68, 75, and 1964 Cum.Supp. § 6.18, at p. 54 and Oct. 1964 Supp. § 6.18(b) (hereafter cited as "Mertens"; Bittker, Federal Income, Estate and Gift Taxation 524 (3d ed. 1964); see also Swenson v. Commissioner, 8 Cir., 1962, 309 F.2d 672, reversing, 37 T.C. 124
12
See Horwich, A Tale of Two Dicta: The Non-Restricted Stock Option, 18 U. Miami L.Rev. 596, 599 (1964); Comment, Taxation of the Stock Option as Intended Compensation, 9 UCLA Law Rev. 703 (1962), and especially at 703 n. 2, referring to Griswold, Cases and Materials on Federal Taxation 540 (5th Ed. 1960); Griswold, Mysterious Stock Option, 51 Ky.Law Rev. 246 (1962). In a sort of Tinker-to-Evers-to-Chance, Dean Griswold attributes to Schlesinger this from Abraham Lincoln:
"The following quotation, usually attributed to Lincoln, best appears to sum up the policies for and against the restricted stock option provisions of the Internal Revenue Code: `People who like this sort of thing will find this the sort of thing they like.'" citing Schlesinger, supra note 11 at 756.
13
§§ 421-423, 1954 Code, as amended by Revenue Act of Feb. 26, 1964, Public Law 88-272, § 221(a). See Mertens, Oct. 1964 Supp. §§ 6.18a, 6.18c; Aidinoff, supra note 11
14
Horwich, supra note 12; Mullock, Unconditional Non-Qualified Stock Options, 40 Taxes 860 (1962); Lefevre, Non-restricted Stock Options, 20 NYU Inst.Fed. Tax. 353 (1962); Kempler, Non-restricted Stock Option Plans: Kuchman and Lehman Cases, 16 Tax Law Rev. 339 (1961); Aidinoff, supra note 11, at 177; Comment, Taxation of the Stock Option as Intended Compensation, 9 UCLA Law Rev. 703 (1962); Sculley, Deferred Compensation in Stock Options, 41 Taxes 20; Browne, Capital Gains Opportunities For Employees, 20 NYU Inst.Fed.Tax. 103 (1962)
15
See § 421(e) (1) (2), 1954 Code; Treas.Reg. § 1.421-4(b)-(e); 1 Mertens, § 6.18 at pp. 76, 79. The record is silent as to why the capital gain privileges were not assured to these employees by appropriate continuation or assumption by the § 337 asset purchaser
16
Taxpayer cites Commissioner v. Smith, 1945, 324 U.S. 177, 65 S. Ct. 591, 89 L. Ed. 830; Helvering v. San Joaquin Fruit & Investment Co., 1936, 297 U.S. 496, 56 S. Ct. 569, 80 L. Ed. 824. See also Horwich, supra note 12; McNamara v. Commissioner, 7 Cir., 1954, 210 F.2d 505; Commissioner v. MacDonald, 7 Cir., 1957, 248 F.2d 552, discussed, Kempler, supra note 14, at 343; Commissioner v. Estate of Stone, 3 Cir., 1954, 210 F.2d 33; Union Chemical & Materials Corp. v. United States, 1961, 296 F.2d 221, 155 Ct. Cl. 540, severely criticized in Comment (U.C. L.A.L.Rev.), supra note 12, at 716, but see Horwich, supra note 12, at 604; Colton v. Williams, D.Ohio, 1962, 209 F. Supp. 381; 2 Mertens, § 11.11 and 1964 Cum.Supp. § 11.11
17
§ 1221, 1954 Code; § 117(a) (1), 1939 Code
18
§ 1222(3), 1954 Code; § 117(a) (4), 1939 Code. Taxpayer's brief asserts that this contention "accords with the long standing, congressionally recognized (S. Rep.No.1622, 83rd Cong., 2d Sess., 1954, 437) rule of the Internal Revenue Service set out in GCM 23677 (1943 Cum. Bull. 370):
"In view of the foregoing it is the opinion of this office that the gain or loss arising from the sale of an option to acquire stock, to a person other than the owner of the stock subject to the option is a long-term capital gain or loss under the provisions of Section 117 (a) (4) and (5) of the Internal Revenue Code where the option has been held by the vendor of the option for more than six months. This opinion is limited, of course, to cases where the option is a capital asset within the meaning of Section 117(a)1."
And see 3B Mertens, § 22.29 n. 58 & 63.
19
The numerous articles referred to in notes 11, 12 and 14, as well as other texts, such as Mertens, §§ 6.18, 6.18c, 11.11, 21.80 and 22.29, trace the history culminating in LoBue and beyond. This includes discussion of the proprietary interest doctrine, the time that compensation is to be attributed to the employee, whether on grant of the option, its exercise, acquisition of the stock, etc., cases recognizing taxable value in the option itself, the effect of restrictions on the use of stock after exercise of the option, and the like
20
Taxpayer makes the same criticism of Robert C. Enos, 31 T.C. 100, 1958; see also Charles E. Sorensen, 22 T.C. 321 (1954)
21
Taxpayer emphasizes especially the portion of the stipulated facts showing the Employer's purpose to be for its self protection, not compensation to the employees. See notes 6 to 8, supra, and accompanying text
22
Prior to amendment by the Technical Amendments Act of 1958, P.L. 85-866, § 53, 72 Stat. 1606, § 1234 provided:
"Gain or loss attributable to the sale of * * * a privilege or option to buy or sell property which in the hands of the taxpayer constitutes (or if acquired would constitute) a capital asset shall be considered gain or loss from the sale or exchange of a capital asset: * * *."
23
The above quotations are from Commissioner v. LoBue, 1955, 351 U.S. 243, 247-249, 76 S. Ct. 800, 803-804, 100 L. Ed. 1142
24
See Treas.Reg. 1.1234-1(e) (1), in 1958 Federal Tax Regulations
25
"Section 1234 OPTIONS TO BUY OR SELL
"(a) Treatment of gain or loss. — Gain or loss attributable to the sale or exchange of, or loss attributable to failure to exercise, a privilege or option to buy or sell property shall be considered gain or loss from the sale or exchange of property which has the same character as the property to which the option or privilege relates has in the hands of the taxpayer (or would have in the hands of the taxpayer if acquired by him).
"* * *
"(c) Non-application of section. — This section shall not apply to —
"(1) a privilege or option which constitutes property described in paragraph (1) of section 1221;
"(2) in the case of gain attributable to the sale or exchange of a privilege or option, any income derived in connection with such privilege or option which, without regard to this section, is treated as other than gain from the sale or exchange of a capital asset;
"* * *; or
"(4) gain attributable to the sale or exchange of a privilege or option acquired by the taxpayer before March 1, 1954, if in the hands of the taxpayer such privilege or option is a capital asset."
§ 1234, as amended by Technical Amendments Act of 1958, P.L. 85-866, § 53, 72 Stat. 1606. See § 1(c) (1), 72 Stat. 1606, which makes § 57 (§ 1234 of the Code as amended) apply to taxable years beginning after December 31, 1953, and ending after August 16, 1954.
26
S.Rep.No.1983, 85th Cong., 2d Sess., in 1958-3 U.S.Code, Cong. & Admin.News p. 4866. See 3B Mertens, § 22.29 1964 Cum.Supp. at p. 74 n. 63
27
As to 1234(c) (2), the Senate Report stated:
"(2) It is made clear that the section does not apply to gains on the sale of an option in any case in which income derived in connection with the option would be treated, without regard to this section, as ordinary income. As a result, the section will not apply to gain from the sale of an employee stock option which is in the nature of compensation to the employee. It also will not apply to gain on the sale or exchange of an option involving `section 306 stock' resulting in ordinary income and it will not apply where a gain is a distribution of earnings and profits taxable as a dividend." S.Rep. 1983, supra note 26, at p. 4867.
And see Part IV Technical Explanation, at pp. 4995-6 as to subparagraph (2):
"Under this exception, for example, to the extent that gain on the sale or exchange of an option to purchase stock is in the nature of compensation to an employee, such gain is not to be treated as capital gain merely because the stock, if acquired, would be a capital asset in his hands." S.Rep. 1983, supra note 26, at p. 4996.
At least one commentator regards the technical explanation as "less alarming" than the "general explanation" which helped "to engender the concern" that "§ 53, Technical Amendments Act * * * was intended to reject out of hand capital gains treatment of the disposition of an option by adding section 1234(c) * * *." See Horwich, supra note 12, at 599 n. 20. The regulations make this distinction. Section 1.1234-1(e) (1) excludes gain from the benefits of § 1234 "to the extent that the gain is in the nature of compensation (see section 61 and 421, and the regulations thereunder, relating to employee stock options); * * *." See note 25, supra.
28
See note 12, supra
29
See generally Treas.Reg. § 1.421-6 and particularly subpar. (a), (a) (3), (c), (d), (d) (2), and (f), as amended (1964). Of these Regulations, Bittker states:
"Unlike the 1946 regulation, the current provisions on `non-statutory' stock options (as amended in 1961) acknowledged the possibility that income is recognizable when the option is granted, they also provide for situations in which the `spread' at the time of the exercise cannot be computed because the employee cannot freely dispose of the stock." Bittker, supra, note 11, at 46.
See Mullock, supra note 14, at 864; Aidinoff, supra note 11, at 176; Kempler, supra note 14, at 343; Comment (U.C. L.A.L.Rev.), supra note 12, at 714.
30
Taxpayer's alternative argument that the time of valuation was in 1952 — the time of the grant — went out with LoBue. Even the dissent would not offer salvation for this contingent option | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1197257/ | 44 Wash. 2d 131 (1954)
265 P.2d 837
FAIRVIEW LUMBER COMPANY, Respondent,
v.
ANDY MAKOS et al., Appellants.[1]
No. 32564.
The Supreme Court of Washington, Department One.
January 21, 1954.
Joseph S. Kane and Howard Staley, for appellants.
Torbenson, Baum & Thatcher, for respondent.
WEAVER, J.
Respondent moves to dismiss this appeal, claiming that notice of appeal was given prematurely.
After trial to the court, the judge announced that he would enter judgment for the plaintiff (respondent). We refer to Andy Makos as though he were the sole defendant and appellant, although the judgment from which this appeal is taken is against Andy Makos and the community of Andy Makos and his wife. Andy Makos died after the case was heard in this court. His executors, Peter Liakatas, Gust Makos, and Gust Rutos (also known as Gus P. Routos) have been substituted as parties appellant by order of this court.
It appears from the transcript on appeal that the trial court entered findings of fact, conclusions of law, and judgment on March 6, 1953. The judgment is marked "filed" at 2:34 p.m. The notice of appeal also bears March 6, 1953, as the date of service and filing. The exact time does not appear on the face of the notice of appeal.
The statement of facts contains a page of narration (apparently prepared by counsel for respondent, served upon counsel for appellant, and included in the statement when certified) which states:
"On March 6, 1953, at about the hour of 2:30 P.M. Counsel for Plaintiff and Defendant appeared before the Court and commenced argument. Counsel for the Defendant [appellant] handed his written Motion for a New Trial [which does not appear in the transcript] and a Written Notice of Appeal to the Clerk of this Department who stamped each with the filing stamp of the King County Clerk and handed them to the Court. Argument then proceeded upon the Motion for New Trial and the form of the Findings of Fact and Conclusions of Law, counsel for the Plaintiff [respondent] consenting to arguing them together and waiving any question of the time of service of the Motion for New Trial.
*133 "At the conclusion of the argument, the Court announced orally its adherence to its previous decision and signed the Findings of Fact and Conclusions of Law and Judgment proposed by the Plaintiff." (Italics ours.)
The order denying the motion for a new trial was presented by counsel for plaintiff (respondent), approved as to form by counsel for defendant (appellant), signed by the trial judge, and filed on March 10, 1953.
Respondent argues that the notice of appeal was premature either (a) because it was served and filed prior to judgment; or (b) because it was filed four days prior to the order denying the motion for a new trial.
In support of its first contention, respondent cites Dux v. Hostetter, 37 Wn. (2d) 550, 225 P. (2d) 210 (1950) and Strickland v. Rainier Golf & Country Club, 156 Wash. 640, 287 P. 900 (1930). Neither case is controlling. In the Dux case, we dismissed the appeal because it was taken from a nonappealable order. In the Strickland case, the appeal was dismissed because notice of appeal was given three days prior to the entry of formal judgment.
[1] In the case now before us, the judgment and notice of appeal bear the same date of filing. We are unwilling to hold that time of filing may be broken down into hours, minutes, and seconds, for the purpose of determining the chronological order of steps necessary to perfect an appeal. When two such acts are done on the same day, it will be presumed that they are done in the order necessary to accomplish their purpose.
Respondent's second contention that the notice of appeal was premature because filed four days prior to the order denying the motion for a new trial is based upon the assumption that the motion for a new trial suspends appellant's right to appeal until disposition is made of the motion. This assumption is erroneous. (See discussion of this possibility as suggested in case note on Dunseath v. Hallauer, infra, 28 Wash. L. Rev. 64.)
Under Rule on Appeal 33, 34A Wn. (2d) 33, and the statute and rules on appeal which it superseded, we have held that *134 the time in which notice of appeal must be given may not commence until entry of the order denying a motion for a new trial. Bezich v. Columbia Ins. Co., 168 Wash. 379, 12 P. (2d) 413 (1932); Smith v. Kneisley, 184 Wash. 26, 49 P. (2d) 916 (1935); Sitko v. Rowe, 195 Wash. 81, 79 P. (2d) 688 (1938); Tungsten Products v. Kimmel, 5 Wn. (2d) 572, 105 P. (2d) 822 (1940); Roesch v. Gerst, 18 Wn. (2d) 294, 138 P. (2d) 846 (1943). However, the question presented in these cases was: had the notice of appeal been given in time not, was it premature.
Under Rule on Appeal 34, 34A Wn. (2d) 36, we held that a statement of facts must be served and filed within ninety days after the date of entry of final judgment; or, if a motion for a new trial has been timely filed, within ninety days from the date of entry of the order denying such motion, if entered after judgment. Dunseath v. Hallauer, 40 Wn. (2d) 708, 246 P. (2d) 496 (1952).
Thus, a motion for a new trial, timely filed, may extend the time in which an appeal may be taken or a statement of facts filed. There is nothing in the nature of the motion which necessarily suspends the right to appeal until disposition is made of the motion.
[2] Two things result when the notice of appeal is filed. First, the appellant loses the right to file in the superior court a motion for a new trial, if it has not yet been filed; or waives and abandons it, if it has been filed, but has not been disposed of. State v. Smails, 63 Wash. 172, 187, 115 P. 82 (1911); Annotation: Right of trial court to grant new trial as affected by appellate proceedings, 139 A.L.R. 340. Second, jurisdiction is transferred to the supreme court and the trial court is deprived of jurisdiction of the subject matter of the cause (Sewell v. Sewell, 28 Wn. (2d) 394, 396, 184 P. (2d) 76 (1947), and cases cited; In re Dygert's Estate, 42 Wn. (2d) 673, 257 P. (2d) 774 (1953)), retaining only those powers enumerated in Rule on Appeal 15, 34A Wn. (2d) 22.
Thus, appellant waived his motion for a new trial; the trial court lost jurisdiction of the case; and the order denying the motion for a new trial, entered March 10, 1953, is a nullity. *135 This conclusion is not inconsistent with our opinion in Dunseath v. Hallauer, supra. In that case, the first notice of appeal was abandoned.
The motion to dismiss the appeal is denied.
No assignments of error are directed to the findings of fact entered by the trial court. They become the established facts of the case (Rule on Appeal 43, 34A Wn. (2d) 47, as amended, effective January 2, 1953. We set forth those facts necessary for a decision of the issues raised.
Joe Bean had built several houses for appellant, Makos. Bean had purchased materials from respondent, Fairview Lumber Company, Inc. In the latter part of December, 1950, Bean was completing work on a house for Makos on Cascadia street, in Seattle, Washington, and advised respondent that he was contemplating the construction of another house for Makos at 39th and Genessee streets, in Seattle.
As of January 2, 1951, Bean was indebted to respondent in the sum of $1,219.12, for materials used in the construction of the Cascadia street house. Respondent advised Bean that no further credit would be extended until arrangements were made to pay the balance, then due, and to pay for the materials to be used in the construction of the house on Genessee street.
Upon disputed testimony, the court found: that Bean and Makos went to respondent's place of business on January 2, 1951; that they discussed the balance of the account and the payment of future charges for materials to be used in the construction of the Genessee street house; that Makos orally promised respondent he would pay the balance due respondent from Bean, in the sum of $1,219.12, and would pay for materials requested by and delivered to Bean for the construction of the house on Genessee street. The court found:
"That said promise was made to Plaintiff [respondent] to induce Plaintiff to deliver materials for Andy Makos' house at 39th and Genessee Streets without payment therefor at the time of delivery."
Respondent furnished the materials.
Thereafter, on February 8, 1951, Makos paid respondent *136 nine hundred dollars. He made a further payment to respondent of one thousand dollars on March 9, 1951.
Respondent sued Makos for $1,127.18, the balance due on the account. The trial court held that Makos' oral promise to pay was enforcible because he, as owner of the house, had benefited to the extent of the reasonable value of the materials delivered. Makos appeals from the judgment entered against him.
[3] The facts, as established, do not make appellant's oral promise subject to the operation of the statute of frauds, as found in Rem. Rev. Stat., § 5825 [cf. RCW 19.36.010].
Restatement, Contracts, 244, § 184:
"Where the consideration for a promise that all or part of a previously existing duty of a third person to the promisee shall be satisfied is in fact or apparently desired by the promisor mainly for his own pecuniary or business advantage, rather than in order to benefit the third person, the promise is not within Class II of § 178 [contracts within the statute of frauds, to answer for the debt, default, or misdoings of another], unless the consideration is merely a premium for the promisor's insurance that the duty shall be discharged....
"Illustrations:
"1. D contracts with S to build a house for S. C contracts with D to furnish materials for the purpose. D, in violation of his contract with C fails to pay C for some of the materials furnished. C. justifiably refuses to furnish further materials. S orally promises C, that if C will continue to furnish D with materials that C had previously agreed to furnish, S will pay the price not only for the materials already furnished but also for the remaining materials if D fails to do so. S's promise is enforceable." (Italics ours.)
This court has consistently followed the principle of Burns v. Bradford-Kennedy Lbr. Co., 61 Wash. 276, 280, 112 P. 359 (1910),
"... that where the leading object of the promissor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute."
Dybdahl v. Continental Lbr. Co., 133 Wash. 81, 85, 233 P. 10 (1925); Drew-Warren Radio Electric Co. v. Western Loan *137 & Bldg. Co., 148 Wash. 435, 442, 269 P. 496 (1928); Stowell Lbr. Corp. v. Wyman, 19 Wn. (2d) 487, 490, 143 P. (2d) 457 (1943).
Appellant proffers as his remaining assignment of error:
"The court erred in excluding evidence (page 56) that defendant Makos had paid Joe Bean in full for past jobs at the time he was alleged to have made a promise to answer for Bean's material bills on those jobs."
The assignment of error and the argument in support of it are broader than the question presented by the record to which the assignment refers.
On cross-examination, Joe Bean identified defendant's (appellant's) proposed exhibit No. 9 for identification as "a bill that Makos made up and that I signed." There is no further evidentiary explanation or identification of the proposed exhibit. It is headed "4430 Cascadia Joe Bean New House 7600.00." The court sustained an objection to its admission on the ground that it was irrelevant and immaterial to the issues of the instant case.
[4] Respondent maintained its action upon appellant's alleged promise to pay the balance due for materials furnished to the Cascadia street house, in the sum of $1,219.12, and to pay for materials to be supplied by respondent for the house on Genessee street. After two payments totaling nineteen hundred dollars, by appellant to respondent, there was an alleged amount due of $1,127.18. Any accounting between Bean and Makos, relating to the construction of the house on Cascadia street, or of any other construction work done by Bean for Makos prior to Makos' alleged promise to pay, is irrelevant, immaterial, and of no probative value in this action between appellant and respondent.
The argument and colloquy of counsel did not constitute an offer of proof sufficient to meet the rule discussed in Sutton v. Mathews, 41 Wn. (2d) 64, 247 P. (2d) 556 (1952). It was not error to exclude the evidence.
The judgment is affirmed.
GRADY, C.J., MALLERY, HILL, and OLSON, JJ., concur.
NOTES
[1] Reported in 265 P. (2d) 837. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249989/ | 493 F.3d 283 (2007)
INDUSTRIAL RISK INSURERS, as subrogee of Silverstein Properties, Inc., Plaintiff-Appellant,
v.
The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Citigroup Global Markets Holdings, Inc., formerly known as Salomon Smith Barney, Inc., and Citigroup, Inc., Defendants-Appellees,
Silverstein Properties, Inc. and 7 World Trade Company, L.P., and AMEC Construction Management, Inc., Amicus Counsel.
Docket No. 05-0664-cv.
United States Court of Appeals, Second Circuit.
Argued: June 13, 2007.
Decided: July 12, 2007.
*284 Gregory P. Joseph, Gregory P. Joseph Law Offices LLC, New York, N.Y.; and Clifford Law Offices P.C., Chicago, Ill., for Plaintiff-Appellant.
Thomas J. Moloney (Lewis J. Liman, Karen Bekker, R. Zachary Gelber, of counsel), Cleary Gottlieb Steen & Hamilton LLP, New York, N.Y., for Defendants-Appellees.
Eric Seiler (Robert S. Loigman, Kent K. Anker, of counsel), Friedman Kaplan Seiler & Adelman LLP, New York, N.Y., for Silverstein Properties, Inc. and 7 World Trade Company, L.P.
Mark J. Weber (Daniel Markewich, of counsel)R, Mound Cotton Wollan & Greengrass, Garden City, N.Y., for AMEC Construction Management, Inc.
Before: CALABRESI, B.D. PARKER, and WESLEY, Circuit Judges.
GUIDO CALABRESI, Circuit Judge:
Plaintiff-Appellant Industrial Risk Insurers (IRI) the subrogee of non-party, amicus Silverstein Properties, Inc. (Silverstein) brought, in the United States District Court for the Southern District of New York, a claim of gross negligence against, inter alia, Defendants-Appellees Citigroup Inc. and Citigroup Global Market Holdings, Inc. (together, Citigroup). Upon reviewing the parties' submissions, the district court dismissed IRI's complaint pursuant to Rule 12(b)(6). See Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., et al., 387 F. Supp. 2d 299 (S.D.N.Y. 2005).
IRI now appeals from that judgment and, in addition, IRI has moved for partial vacatur of the district court's opinion and order. For the reasons stated below, while we (1) affirm the judgment of the district court, we (2) remand IRI's motion for partial vacatur to the district court, to allow that court to consider that motion in the first instance.
BACKGROUND
Citigroup was the largest tenant in 7 World Trade Center (7 WTC), a 47-story office tower that had stood adjacent to the Twin Towers of the World Trade Center. On September 11, 2001, as a result of the attacks on the nearby Twin Towers, 7 WTC caught fire. For the next seven hours, 7 WTC burned wildly, until the building ultimately collapsed to the ground. IRI had provided property insurance to Silverstein for 7 WTC, and in the wake of this damage, has paid in excess of $400 million in property loss to Silverstein.
I. The Industrial Risk Insurers Action
In the present case, IRI charged Citigroup with gross negligence. Citigroup, as 7 WTC's largest tenant, assertedly chose to design, construct, and install a diesel-fuel-powered generator system in 7 WTC, which pumped fuel through the entire building at all times. IRI claims that this generator system was unreasonably *285 dangerous, and that, while Citigroup's alleged gross negligence did not cause the initial combustion in 7 WTC, it directly led to an aggravation of fire damage and the ultimate collapse of the building. As noted above, the district court dismissed IRI's complaint pursuant to Rule 12(b)(6).
On appeal, IRI argues (1) that the district court improperly concluded, as a matter of law, that Citigroup's conduct was not gross negligence; (2) that the district court erred in holding that New York's "subrogation waiver" doctrine precluded IRI from asserting a claim sounding in gross negligence; and (3) that the district court erred in applying the doctrine of assumption of risk to bar IRI's gross negligence claim.
IRI submitted its appellant brief to this court on May 2, 2005. Before Citigroup had submitted its appellee brief, however, our court decided St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73 (2d Cir.2005) (holding that a waiver of subrogation clause bars a claim of gross negligence under New York law). Citigroup then filed its appellee brief on June 1, 2005, in which it argued persuasively that St. Paul required us to affirm the district court's "subrogation waiver" holding.
The district court's decision with respect to the waiver of subrogation clause is independent of the district court's other two bases for granting the motion to dismiss i.e., that Citigroup's conduct, as a matter of law, was not gross negligence, and that the assumption of risk doctrine would bar IRI's gross negligence claim even if that claim were otherwise meritorious. Accordingly, given St. Paul which requires us to affirm the judgment of the district court it is unnecessary, and hence would be improper, for us to consider the alternative grounds relied on by the district court.
IRI recognized as much, and, since it feared that the district court's far-reaching and by no means unassailable[1] holding on assumption of risk might have collateral estoppel effects in other litigation arising out of September 11, IRI moved for partial vacatur of the district court's decision on the assumption of risk issue.[2] Citigroup consented to IRI's motion.
This court, by order dated May 24, 2006, ruled that IRI's motion seeking partial vacatur was "more accurately an amendment to its appellate brief. . . . Thus, it should be heard, after full briefing by both parties, by the panel deciding the appeal." Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., et al., No. 05-0664-cv (2d Cir. May 24, 2006) (unpublished order). We treated IRI's motion in this manner because IRI has not formally abandoned its appeal.
*286 II. The Aegis Action
In a completely separate lawsuit in which both AMEC Construction Management, Inc. (AMEC) and Silverstein are parties, the assumption of risk issue was raised. See Aegis Ins. Servs., Inc. v. 7 World Trade Center Co., L.P. (In re Sept. 11 Property Damage and Business Loss Litigation), 481 F. Supp. 2d 253 (S.D.N.Y. 2007) ("Aegis"). In the Aegis action, Aegis Insurance Services (Aegis), the subrogee of Consolidated Edison Co., brought a gross negligence claim against Citigroup, on the theory that Citigroup was negligent in designing, constructing, installing, and maintaining its diesel-fuel-powered generator system in 7 WTC. Silverstein and Citigroup were both parties to the Aegis action, but AMEC initially was not. Silverstein, however, impleaded AMEC as a third-party defendant.
On March 9, 2007, Judge Hellerstein dismissed Silverstein's third-party claims for two, independent, reasons: (1) that AMEC owed no duty to Silverstein because there was no contractual privity or its functional equivalent between the parties, id. at 260-61, and (2) that, as Judge Hellerstein had previously held in the Industrial Risk Insurers action, Silverstein assumed the risks associated with the Citigroup Fuel System, id. at 261-62.
III. The Motions to Intervene in the Industrial Risk Insurers Action
Shortly before Judge Hellerstein issued his ruling dismissing Silverstein's claims against AMEC in the Aegis case, AMEC learned of IRI's motion for partial vacatur in the Industrial Risk Insurers case. AMEC sought to intervene, because,
if vacatur was granted, it would cast a cloud of disapproval on Judge Hellerstein's assumption of risk holding, perhaps influencing his consideration of AMEC's then pending motion to dismiss in the Aegis Action. Additionally, AMEC was concerned that, because IRI and Citigroup no longer had any real stake in the assumption of risk issue on appeal, the arguments in favor of Judge Hellerstein's ruling on that question might not be adequately presented to this Court by the parties to the appeal in the IRI Action. . . .
Brief for AMEC Construction Management, Inc. as Amicus Curiae at 8, Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., et al., No. 05-0664-cv (2d Cir. June 1, 2007). Soon thereafter, Silverstein also moved to intervene.
After AMEC and Silverstein had moved to intervene in the Industrial Risk Insurers case, Judge Hellerstein issued his ruling in the Aegis action. Because Judge Hellerstein offered two independent grounds for dismissing Silverstein's third-party claims against AMEC both lack of contractual duty, and assumption of risk AMEC now concedes that "any influence that vacatur might have had prospectively on Judge Hellerstein's decision is no longer a concern for AMEC." AMEC Amicus Brief at 9.
IV. This Court's May 4, 2007 Order
On May 4, 2007, this court issued an order denying AMEC's and Silverstein's motions to intervene in the Industrial Risk Insurers case, but inviting them to file amicus briefs and participate in oral argument. We also noted that since we could affirm the district court's judgment in the Industrial Risk Insurers case on its St. Paul holding alone, there was no need for us to review Judge Hellerstein's assumption of risk holding in this appeal. Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., et al., No. 05-0664-cv (2d Cir. May 4, 2007) (unpublished order). Accordingly, the only issue still in active dispute today is whether to grant IRI's motion for partial vacatur.
*287 DISCUSSION
Having carefully considered the parties' arguments, we now affirm the judgment of the district court, doing so solely on the basis of its "subrogation waiver" holding, and turn to whether IRI's motion for partial vacatur should be granted. We have recognized that "a party `who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.'" Major League Baseball Props., Inc. v. Pacific Trading Cards, Inc., 150 F.3d 149, 151 (2d Cir.1998) (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 25, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994)). At the same time, we have acknowledged that "vacatur should be regarded as an extraordinary remedy because judicial precedents have social value." Id.
AMEC argues, in its amicus brief to us, that IRI should not be entitled to partial vacatur of the district court's opinion because, "[a]lthough it is clear, in light of this Court's ruling in St. Paul, that IRI's appeal stood virtually no chance of success, nevertheless the St. Paul decision in and of itself did not moot IRI's appeal, as that decision did not require IRI to abandon its own appeal." AMEC Amicus Brief at 11 (footnote omitted). This argument misconstrues IRI's position. IRI's motion for partial vacatur was effectively an amendment to its appellate brief; it was not an abandonment of the appeal. Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., et al., No. 05-0664-cv (2d Cir. May 24, 2006) (unpublished order). Accordingly, this case squarely raises the question of whether a motion for partial vacatur should be granted where, as here, the moving party is unable to obtain review on the merits of one aspect of a district court's holding because the holding is affirmed on other, independent, grounds.
The question is a difficult one. IRI powerfully contends that if its motion is not granted, it may be collaterally estopped from arguing the merits of the assumption of risk issues in other cases. Indeed, that is precisely what happened to Silverstein, at the district court level, in Aegis. The district court there applied collateral estoppel to bar Silverstein's claims against Citigroup, finding that "the identical issue was necessarily decided in the prior action [Indus. Risk Insurers, 387 F.Supp.2d at 299] and is decisive in the present action." Aegis, 481 F.Supp.2d at 261-62 (citation omitted).
But, of course, Aegis notwithstanding, it is more than possible that collateral estoppel would not ultimately be applied, given that we have found it inappropriate to review the district court's original assumption of risk holding. Since we are affirming the district court's decision solely on the "subrogation waiver" holding and refusing to consider its assumption of risk ruling, it would seem that IRI has not had the opportunity to contest fully the merits of the assumption of risk issue. And such an opportunity is a prerequisite for the application of collateral estoppel under both federal and New York state law. Compare Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998) ("Under federal law, a party is collaterally estopped from relitigating an issue if a four-part test is met: (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." (internal quotation marks and footnote omitted and emphasis added)) with Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir.2003) (stating that "under New York law, collateral estoppel prevents a party from relitigating an issue. . . . (1) identical to an issue already decided (2) in *288 a previous proceeding in which that party had a full and fair opportunity to litigate," and where (3) "the issue that was raised previously [is] decisive of the present action" (internal quotation marks omitted and emphasis added)).
The collateral estoppel issue is, in this case, complicated by the fact that some doubt exists as to whether New York state law or federal law controls. In the Aegis action, for example, Judge Hellerstein appeared to apply New York law to the collateral estoppel inquiry, Aegis, 481 F.Supp.2d at 261-62, perhaps following "an old line of cases that has never been overruled, [in which] the Supreme Court has held that the states may apply their own law to determine the preclusive effect of a federal diversity judgment," Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 42 n. 3 (2d Cir.1986); see also United States v. Frank, 494 F.2d 145, 159 (2d Cir.1974) (rejecting, in dicta, the government's contention that federal law would determine the collateral estoppel effect of a federal criminal conviction in a subsequent diversity case). On the other hand, more recent case law from our circuit suggests that federal law should have controlled. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002) ("We apply federal law in determining the preclusive effect of a federal judgment and New York law in determining the preclusive effect of a New York State court judgment." (internal citations omitted)); Gelb, 798 F.2d at 42 n. 3 (holding that federal law governed the collateral estoppel effect of a federal criminal conviction in a subsequent diversity action and suggesting that, in light of the Federal Rules of Civil Procedure and Supreme Court cases requiring federal courts to give state judgments collateral estoppel effects, "[i]t would seem that . . . federal law should determine the preclusive effect of a federal judgment without regard to the basis of jurisdiction"). See also the much earlier case of Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir.1962) (applying federal law, not state law, to determine the character and extraterritorial effect of a federal district court judgment because "[i]t would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity").
In the end, however, we need not decide whether New York or federal law controls the question. This is so despite the fact that although they often ultimately reach the same result these two bodies of law do appear to diverge in some particulars, see Curry, 316 F.3d at 331 n. 4 (noting that federal law and New York state law differ on the issue of collateral estoppel), and despite the fact that we cannot be sure that they are the same with regard to the situation before us. In Gelb, we held that under federal law, "if an appeal is taken and the appellate court affirms on one ground and disregards the other, there is no collateral estoppel as to the unreviewed ground," and that "inability to obtain appellate review, or the lack of such review once an appeal is taken, does prevent preclusion." 798 F.2d at 44-45. But, we have found no equivalent New York holding.[3]
*289 Nevertheless, we believe it clear that applying collateral estoppel in later cases to a holding such as Judge Hellerstein's assumption of risk decision would be highly problematic, under either New York or federal law. But the matter is not precisely before us, and hence it has not been fully argued to us. On the other hand, the merits of the motion for vacatur of the assumption of risk holding, which have been argued to us, do depend in part on the existence vel non of collateral estoppel. We hesitate to vacate the district court's learned consideration of assumption of risk (whatever our own doubts about it may be) as it is entitled to have persuasive effect on district courts in later cases. We cannot, however, countenance its remaining in place, if it were to estop collaterally parties who have had no chance to contest it on appeal.
Under the circumstances, we deem it best to allow the district court to consider, in the first instance, whether the motion to vacate should be granted. As the Supreme Court has made clear,
[E]ven in the absence of, or before considering the existence of, extraordinary circumstances [that might warrant vacatur of a district court's opinion], a court of appeals presented with a request for vacatur of a district-court judgment may remand the case with instructions that the district court consider the request, which it may do pursuant to Federal Rule of Civil Procedure 60(b).
U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 29, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994).
Accordingly, we remand and instruct the district court consider IRI's motion for partial vacatur. In doing so, we underscore that, if the district court, on remand, construes its ruling on assumption of risk in such a way that IRI cannot in other cases be collaterally estopped by it, then the need to grant the motion to vacate would be significantly reduced. Similarly, the reverse is true: if the assumption of risk ruling is such that collateral estoppel might well apply, that fact would likely suffice as an extraordinary reason justifying the granting of a vacatur motion. But we leave these issues for the district court.
CONCLUSION
The judgment of the district court is AFFIRMED, though solely with respect to its "subrogation waiver" holding. IRI's motion for partial vacatur is REMANDED to the district court, for that court's consideration *290 in the first instance in light of the above discussion.
NOTES
[1] The district court was interpreting New York state law. We think that New York law with respect to assumption of risk in situations like those in the instant case is anything but certain. As a result we believe that, in the proper case, guidance on this issue should be sought from the New York Court of Appeals through certification. We recognize, of course, that under New York law certification was not an option for the district court. See O'Mara v. Town of Wappinger, 485 F.3d 693, 698 & n. 7 (2d Cir.2007) (noting that while under Second Circuit rules and New York law, our court may certify a question to the New York Court of Appeals, district courts do not have the authority to do so); Nicholson v. Scoppetta, 344 F.3d 154, 168 (2d Cir.2003) ("On appeal, we now have available to us an additional option not open to the District Court: We may certify questions of New York state law to the New York Court of Appeals.").
[2] IRI did not seek vacatur of the district court's separate conclusion that Citigroup's conduct, as a matter of law, was not gross negligence. Presumably this was because that holding would have no collateral consequences for IRI in other litigation.
[3] There is authority in New York that collateral estoppel may apply to a lower court decision pending appeal. See, e.g., DiSorbo v. Hoy, 343 F.3d 172, 183 (2d Cir.2003) ("Under New York law, the mere pendency of an appeal does not prevent the use of the challenged judgment as the basis of collaterally estopping a party to that judgment in a second proceeding.") (internal quotation marks and citation omitted). While there are many New York cases suggesting caution in applying preclusion in such situations, see, e.g., Duverney v. State, 96 Misc. 2d 898, 410 N.Y.S.2d 237, 246 (N.Y.Ct.Cl.1978) (noting that under New York's collateral estoppel law, "the full and fairness opportunity doctrine . . . mandates consideration of the existence of an appeal"); In re Estate of Alexis, 14 Misc. 3d 379, 823 N.Y.S.2d 886, 889-90 (N.Y.Sur.Ct. 2006) ("In determining whether collateral estoppel should apply, it has been recognized that consideration should be given to the existence of an appeal."); In re Estate of Brown, 132 Misc. 2d 171, 503 N.Y.S.2d 532, 533 (N.Y.Sur.Ct.1986) (holding proceeds of a life insurance policy in escrow, rather than applying collateral estoppel, pending finalization of a judgment against the named beneficiary for murdering the insured), and while we have said that under New York law "collateral estoppel is an equitable doctrine not a matter of absolute right," PenneCom B.V. v. Merrill Lynch & Co., 372 F.3d 488, 493 (2d Cir. 2004), the law as to the instant situation is uncertain. We have found only one New York case directly on point, Tydings v. Greenfield, Stein & Senior, LLP, No. 110963/06, 14 Misc. 3d 1233, 836 N.Y.S.2d 495, slip op. at 2 (N.Y.Sup.Ct. Jan. 12, 2007) (precluding the plaintiff from raising an issue that had been litigated in Surrogate Court and appealed, but that had not been addressed in the First Department's affirmance of the Surrogate Court's decision). This opinion, unpublished and by a court of first instance, obviously does not resolve the question of New York law on the matter quite apart from the fact that it appears to confuse the legitimacy of a judgment and its effect under New York law prior to an appeal with the collateral estoppel effect of a judgment after an appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/267878/ | 345 F.2d 354
UNITED STATES of America, Plaintiff-Appellee,v.Fance BELL, Defendant-Appellant.
No. 14471.
United States Court of Appeals Seventh Circuit.
April 21, 1965.
Marshall Patner, Chicago, Ill., for appellant. Fance Bell, pro se.
Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Archibald T. LeCesne, Richard G. Schultz, Asst. U. S. Attys., Chicago, Ill., for appellee.
Before DUFFY, KNOCH and KILEY, Circuit Judges.
DUFFY, Circuit Judge.
1
Defendant was indicted on a one-count indictment for violation of Section 4704 (a), Title 26, U.S.Code.1 Defendant was represented by court-appointed counsel. He entered a plea of guilty to the charge.
2
The trial court entered a finding of guilty and a judgment of conviction. The Court committed the defendant to the custody of the Attorney General pursuant to Title 18, U.S.Code, Section 4208 (b). By the terms of that statute, defendant's commitment must "be deemed to be for the maximum sentence of imprisonment prescribed by law * * *." The maximum period of imprisonment for a violation of § 4704(a), Title 26, U.S.C. is ten years for a first offender. See Section 7237, Title 26, U.S.C.
3
Under Title 18, § 4208(b), the commitment for the maximum term is in order that a study of a defendant may be made by prison authorities. Within three months after such a sentence, the Director of the Bureau of Prisons may make recommendation to the Court. After receiving these recommendations, the Court may place the prisoner on probation, may affirm the sentence of imprisonment originally imposed, or may reduce the sentence of imprisonment and commit the prisoner under any applicable provision of law. The statute also provides the term of sentence shall run from the date of the original commitment under this section.
4
The defendant herein was sentenced on April 29, 1963. On May 6, 1963, the United States moved the Court for leave to file an information setting forth a prior narcotics conviction of the defendant, and asked the Court to vacate the sentence originally imposed. A hearing was held on May 8, 1963. A further hearing was held on May 16, 1963 when, over objection by defendant, the Court vacated the judgment and sentence which had been entered on April 29th. The Court then entered a plea of not guilty for the defendant and, after a trial before the Court, found the defendant guilty of violating Section 4704(a).
5
After such conviction, and before pronouncement of the sentence, the Government filed the information of the prior conviction, and the Court entered sentence for a term of five years under Section 7237(a), Title 26, U.S.C.
6
Although by law, the term of imprisonment imposed under the first sentence was ten years, and under the second sentence the term was five years, nevertheless, defendant considers the sentence first imposed on him under Section 4208 (b) to be much more favorable to him than the second sentence imposed under Title 26, § 7237(a). This is because of the possibility of a reduction of the term after receiving a report from the prison authorities and also because a first offender might receive probation. Under Section 7237(c), a second offender would not qualify for probation.2
7
Title 26, U.S.Code, § 7237(c) (2) provides: "After conviction (but before pronouncement of sentence) * * * the Court shall be advised by the United States attorney whether the conviction is the offender's first or a subsequent offense. If it is not a first offense, the United States attorney shall file an information setting forth the prior convictions. The offender shall have the opportunity in open court to affirm or deny that he is identical with the person previously convicted. * * *"
8
In the instant case, the assistant United States attorney in charge, through oversight, did not know that among the papers and pleadings pertaining to the case and which were in his possession, there was proof of a previous narcotics conviction of the defendant herein. Promptly, after such proof was discovered, a motion was made to vacate the first sentence.
9
Defendant contends the sentence first imposed on him was a legal sentence and could be amended or altered only on the basis of something that was already in the record, and that the action of the Court in vacating the first sentence and then sentencing him under Title 26 U.S. C. § 7237(a), placed the defendant in double jeopardy.
10
We hold the failure to file the information strictly in conformity with the procedure outlined in 26 U.S.C § 7237(c) (2) is harmless error under the facts and circumstances of this case.
11
In United States v. Duhart, 2 Cir., 269 F.2d 113, on the day following a sentence to the minimum punishment for a third narcotic offender, it was discovered that no information had been filed by the United States attorney. The Court held a second hearing and revoked the sentence. The following day, the information was filed and the defendant was then sentenced as a third offender.
12
In the instant case, the delay in filing the information was considered by the District Court as harmless error under Rule 52(a), Federal Rules of Criminal Procedure. It is apparent that Section 7237(c) was intended to protect the defendant from the effect of prior offenses incorrectly charged, for the section gives the defendant the opportunity to prove that he is the identical person previously convicted. There is no claim here that the defendant was not the person who had been previously convicted of a narcotic offense.
13
Another pertinent case is Knight v. United States, 9 Cir., 225 F.2d 55, cert. den. 350 U.S. 890, 76 S. Ct. 148, 100 L. Ed. 784. There, no information had been filed, but the Court had personal knowledge of the prior conviction. The Court said, page 57 of 255 F.2d: "`Information' as used in this statute does not connote nor require the precise adherence to procedural details the law demands in the case of a criminal charge. In our view the defect or omission here involved does not involve a substantial right. If failure to file such an information was error we regard it as harmless."
14
Defendant seeks to distinguish the Duhart and Knight cases, pointing out that in the Duhart case the Court emphasized that the prior narcotics conviction of defendant had been admitted in open court and that in the Knight case, it appeared the presiding judge had personal knowledge of a prior conviction.
15
In the case at bar, on April 29, which was the day of the first sentence, defendant's counsel informed the presiding judge, in open court, that her client had a narcotics record. While the subsequent conversation dealt largely with a number of incidents under the state law, the judge was informed, on May 8, 1963, that defendant had served a three-year sentence in the federal penitentiary at Chillicothe, Ohio, for an offense against the federal narcotics law. This was prior to the date that the District Judge vacated the first sentence.
16
Inasmuch as the defendant does not deny he is the person who served the three-year sentence in a federal penitentiary for a violation of the federal narcotics law, we hold that any error in not strictly following the outlined procedure was harmless, and we hold further that by the imposition of the second sentence, defendant was not placed in double jeopardy. See Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516.
17
Marshall Patner, Esq. of the Chicago Bar, has ably represented the defendant on this appeal as court-appointed counsel. We thank him for his fine services. We also thank John Hudson, Esq. of the Chicago Bar who assisted Mr. Patner on the brief.
18
The order of the District Court dated November 22, 1963 is
19
Affirmed.
Notes:
1
This section makes it unlawful for any person to purchase, sell, dispense or distribute narcotic drugs except in the original stamped package or from the original stamped package
2
Section 7237(a), Title 26, U.S.C. provides imprisonment of not less than two nor more than ten years for a first offender and for not less than five nor more than twenty years for a second offender. In either case, a fine of not exceeding $20,000 may be imposed | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/267879/ | 345 F.2d 357
UNITED STATES of America ex rel. Kenneth ROGERS, Petitioner-Appellee,v.Ward LANE, as warden of the Indiana State Prison, Respondent-Appellant.
No. 14871.
United States Court of Appeals Seventh Circuit.
May 5, 1965.
John J. Dillon, Atty. Gen., Edwin K. Steers, formerly Atty. Gen. of Indiana, Carl E. Van Dorn, Asst. Atty. Gen., Indianapolis, Ind., for appellant.
David J. Halperin, Chicago, Ill., Thomas Broden, Jr., Notre Dame, Ind., for appellee.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
1
Ward Lane, warden of the Indiana State Prison, respondent, appeals from an order of the district court which granted a petition of Kenneth Rogers, petitioner, for a writ of habeas corpus and discharged him from the custody of respondent. But the district court also ordered that petitioner be detained in the custody of respondent pending this appeal.
2
In 1946 petitioner was charged in an Indiana state court in a three-count affidavit with second degree burglary, automobile banditry1 and being an habitual criminal. A trial was held which resulted in jury verdicts finding petitioner guilty of second degree burglary and automobile banditry and a verdict that petitioner had been twice before convicted of a felony — once in 1932 and once in 1928. The court had instructed the jury, inter alia, as follows:
3
"Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, * * * shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life."
4
However, the jury of its own volition submitted the following additional verdict:
5
"We, the jury, find the defendant not guilty of being an Habitual Criminal."
6
Thereafter the court sentenced petitioner as follows: Imprisonment of two to five years for second degree burglary, twenty-five years for automobile banditry and life as an habitual criminal.
7
It has been stipulated by respondent that service of the first two sentences has been completed and that petitioner is now held solely by virtue of his sentence as an habitual criminal.
8
In his petition filed in the district court petitioner charged that his imprisonment as an habitual criminal is in violation of the equal protection of the law and due process clauses of the fourteenth amendment to the United States constitution. He contended that the Indiana state constitution, article 1, section 19, gives the jury in criminal cases "the right to determine the law and the facts" and that rejection by the trial judge of the general verdict of not guilty on the habitual criminal count deprived "the petitioner and the jury of the jury's `right to determine the law and the facts' on that issue". With this contention we cannot agree.
9
The provisions of article 1, section 19 have been construed by the Indiana Supreme Court, which in Beavers v. State, 236 Ind. 549, 559 et seq., 141 N.E.2d 118, 123 (1957) said:
10
"A jury has no more right to ignore the law than it has to ignore the facts in a case. * * * a verdict of guilty that is not supported by the facts or one that is contrary to law may be set aside by a court. * * *" At 562, 141 N.E.2d at 124, the court added:
11
"To insist that the jury should `not be limited, restricted, controlled, or influenced or hampered by the court or legislature in the full, free, and voluntary exercise of the jury of their sole constitutional right * * *,' to determine the law, would in effect tear down our constitutional system of government. * * *"
12
The determination of the test as to what conduct shall make one an habitual criminal is a legislative function which the state of Indiana exercised by the action of its legislature.2 We hold that the jury in this case possessed no legislative power to repudiate or alter the habitual criminal act passed by the Indiana legislature. Its gratuitous opinion that petitioner was not an habitual criminal would have had that effect so far as he was concerned.
13
It is not disputed that the jury by its verdicts found petitioner guilty of burglary and banditry and that it found that he had been previously twice convicted of felonies in Indiana. These determinations judicially established the fact that he was an habitual criminal under Indiana law. In resolving these issues of fact in this case, the jury performed its proper function. Its additional verdict that petitioner was not an habitual criminal lay beyond the province of the jury. The law of Indiana in relation to habitual criminals was properly applied by the court in entering judgment on the verdicts accordingly. Any disagreement between the jury and the state of Indiana as to the wisdom or justice of the habitual criminal act is not germane to this case.
14
For these reasons the order of the district court discharging petitioner from the custody of respondent must be reversed.
15
We are not unmindful of the immediate effect which the unusual and unresponsive verdict of the jury seemed to have had upon the trial judge when read in open court, as set forth in an affidavit by the attorney who represented petitioner at the time of said trial. According to that attorney, the court during a three or four minute conference expressed some doubt as to the proper interpretation of the verdict. However, on the next morning, the court indicated that he had done research overnight and he thereupon proceeded to impose sentence.
16
We find, on thorough consideration of the record before us, that the trial judge applied the Indiana law based upon the verdicts of the jury which were responsive to the submission by the court. We find nothing in the record to indicate that there was any trick upon the jury or defense counsel or inducement which caused the return of any verdict herein.
17
The evidence in the district court was entirely documentary. There was no serious disagreement as to the facts. We have a right on this appeal of a final order in a habeas corpus proceeding to consider the evidence which was before the district court. 28 U.S.C.A. rule 81 (a) (2). Accordingly, this court has a right to review the conclusion of the district court that, to the extent that the demands of Indiana criminal procedure were satisfied, "the net result of the proceeding is a sham". See ElyriaLorain Broadcasting Co. v. Lorain Journal Co., 6 Cir., 298 F.2d 356, at 358 (1961), where the court said:
18
"* * * The fact that findings of the type of No. 8 are labelled `Findings of Fact' does not make them findings of fact if they are in reality conclusions of law and, if so, we are free to act independently and draw our own legal conclusions and inferences. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S. Ct. 294, 5 L. Ed. 2d 268 * * *." (Italics supplied.)
19
In the case at bar the so-called finding of the district court that the net result of the trial court proceedings "is a sham" is actually a conclusion of law and is subject to review by this court, especially as the only evidence received by the district court was documentary and the trial did not involve any question as to the veracity of witnesses. This view is in accordance with repeated decisions of federal courts of review.3
20
In United States ex rel. Brown v. Smith, 2 Cir., 306 F.2d 596 (1962), cert. den. 372 U.S. 959, 83 S. Ct. 1012, 10 L. Ed. 2d 11, an order of a district court discharging a prisoner on a writ of habeas corpus was reversed, although the district court made a finding of jury prejudice. The circuit court, at 602, on appeal held that, inasmuch as the district court took no testimony and there were no issues of credibility, it was in as good a position as he to determine what inferences should be drawn from the admitted facts. The circuit court rejected as clearly erroneous the conclusion of the district court that the defendant had been tried by a prejudiced jury.
21
Moreover, we hold that the trial court conducted the proceedings before him in a fair and careful manner and that there is no basis for petitioner's charge that the trial was a sham, lacked fundamental fairness, or deprived him of his liberty without due process of law. It is apparent from the record that the unexpected action of the jury in preparing and returning a verdict attempting to exonerate petitioner from the charge that he was an habitual criminal surprised the trial judge, but that, after due deliberation, the court's action, as above stated herein, was entirely fair to petitioner as well as the prosecution.
22
We express our appreciation to attorneys David J. Halperin and Thomas Broden, Jr., who represented petitioner before this court.
23
For all of the foregoing reasons, the order of the district court granting the petition for writ of habeas corpus and discharging petitioner is hereby reversed and this cause is remanded to the district court with directions to dismiss the petition.
24
Order reversed with directions.
Notes:
1
Automobile banditry is a felony defined by Burns' Ind.Stat.Ann. (1956 Repl.) § 10-4710
2
Burns' Ind.Stat.Ann. (1956 Repl.) § 9-2207 provides:
"Habitual criminals — Life sentence. — Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life."
§ 9-2208 provides:
"Habitual criminals — Former convictions, allegation, verdict. — To authorize a sentence of imprisonment for life under this act, the indictment or affidavit shall allege that the defendant has been previously twice convicted, sentenced and imprisoned in some penal institution, for felonies, describing each separately. If the trial jury, in their verdict, find these facts to be true, and convict such defendant of the third felony, the trial court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, shall proceed to sentence the defendant to imprisonment for his or her life."
3
Wigginton v. Order of United Commercial Travelers, 7 Cir., 126 F.2d 659 (1942), cert. den. 317 U.S. 636, 63 S. Ct. 28, 87 L. Ed. 513; Pflugradt v. United States, 7 Cir., 310 F.2d 412, 415 (1962); Minneapolis, St. P. & S. S. M. R. Co. v. Metal-Matic, Inc., 8 Cir., 323 F.2d 903, 912 (1963); Copease Mfg. Co. v. American Photocopy Equipment Co., 7 Cir., 298 F.2d 772, 781 (1961); Taft Broadcasting Co. v. Columbus-Dayton Local, 6 Cir., 297 F.2d 149, 152 (1961); Cordovan Associates, Inc. v. Dayton Rubber Co., 6 Cir., 290 F.2d 858, 860 (1961); Green v. Bluff Creek Oil Company, 5 Cir., 287 F.2d 66, 69 (1961); Gediman v. Anheuser Busch, Inc., 2 Cir., 299 F.2d 537, at 547 (1962), where the court said:
"* * * For it has long been the rule in this Circuit that `a judge's determination of negligence, as distinguished from the evidentiary facts leading to it, is a conclusion of law freely reviewable on appeal and not a finding of fact entitled to the benefit of the "unless clearly erroneous" rule.' * * *" | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/267882/ | 345 F.2d 372
UNITED STATES of America, Plaintiff-Appellee,v.Joseph Nello SPINO, Defendant-Appellant.
No. 14829.
United States Court of Appeals Seventh Circuit.
April 9, 1965.
Rehearing Denied May 10, 1965.
John N. Stanton, East Chicago, Ind., for appellant.
Alfred W. Moellering, U. S. Atty., Frank J. Violanti, Asst. U. S. Atty., Fort Wayne, Ind., for appellee.
Before KNOCH, CASTLE and KILEY, Circuit Judges.
KNOCH, Circuit Judge.
1
Defendant, Joseph Nello Spino, was charged in a four-count indictment with (two counts) interstate travel (between Illinois and Indiana) in aid of an unlawful activity under Indiana law in violation of Title 18 U.S.C. § 1952, and with (two counts) wilfully and knowingly making, subscribing, and filing a false wagering tax return on May 4 and May 31, 1962, by failing to list four agents (other than the one he had listed) who were receiving wagers on defendant's behalf, in violation of Title 26 U.S.C. § 7206 (1).
2
The jury found defendant guilty on all four counts. He was sentenced to serve eighteen months on each count, concurrently, and fined $3,000.
Defendant lists the following as errors:
3
"1. The verdict is not supported by substantial evidence such as to establish guilt beyond a reasonable doubt.
4
"2. The court erred in denying defendant's motions for judgment of acquittal as to each count of the indictment.
5
"3. The prosecutor committed prejudicial misconduct during his summation and argument to the jury, testifying to them as a fact his inside mis-information.
6
"4. Title 18, U.S.C.A. Interstate Travel in Aid of Racketeering is unconstitutional."
7
Title 18, U.S.C. § 1952, prohibits travel in interstate commerce by any mode of transport with the intent to promote, carry on, or facilitate the carrying on of a business enterprise involving gambling in violation of the laws of the state where it is carried on. United States v. Zizzo, 7 Cir., 1964, 338 F.2d 577. In that decision, at page 579, this Court upheld the constitutionality of the statute.
8
We must view the evidence, of course, in the light most favorable to the government and may reject no inferences properly deducible from that evidence. United States v. Shaffer, 7 Cir., 1961, 291 F.2d 689, 691; Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Coduto, 7 Cir., 1960, 284 F.2d 464, 466.
9
Defendant was under extensive surveillance by special agents of the Internal Revenue Service, U. S. Treasury Department, whose testimony was offered at the defendant's trial. These special agents testified to numerous instances of defendant's interstate travel between locations in Chicago and Cicero, Illinois, to 3460 Pennsylvania Avenue, East Chicago, Indiana, where gambling activity in violation of Indiana Statutes (§§ 10-2304, 10-2307, 10-2312, Burns' Ind.Stat.1956 Replacement) was in operation. A representative of the Illinois Bell Telephone Company testified to telephone calls between defendant's home in Chicago and the East Chicago, Indiana, location.
10
There was further testimony from which the jury could reasonably have concluded that defendant was the man in charge of the operations in East Chicago, and the jury could have inferred with equal reason that he was being financed by sources in Chicago, Illinois.
11
Defendant states that he did not operate the East Chicago establishment until June, 1962, when he took over a lease from Frank Santos, also known as Efrain Frank Santos, who had rented the premises in December, 1961, and who paid the rent until June 1, 1962. Mr. Santos testified that he brought in a pool table and a poker table which he later removed to allow one Johnny Reveira to bring in a Monte table and equipment for Bolita, a numbers game played with a cage of ping pong balls, on which bets could be brought in for bettors who were not present at the drawings. Special Agent Michael Gonzales testified to placing Bolita bets in May and June, 1962, with Castro Rosado, Genaro Ruiz, Frank Vasquez and Augustin Flores. The last two denied working for the defendant and testified that they took Special Agent Gonzales' bets in only as a personal favor to him.
12
There was considerable testimony about Monte and the nature of its operation. Defendant and other witnesses testified that the players in Monte conduct their own card game, the table being made available merely as an accommodation from which the "house" takes no profit; that anybody can serve as the banker from whom the dealer receives a gratuity for his services if the banker wins. There was conflicting testimony as to the extent of the defendant's participation in these Monte games, including evidence that defendant was seen taking away a large sum of money from the Monte table. There was also testimony that defendant had something to do with the nightly drawing in the Bolita game.
13
It is defendant's contention that he did not operate the East Chicago establishment until after it had been closed and remodeled in April and May, and after he had moved to Indiana. He applied for a wagering stamp before the establishment reopened and he stated that he hired only Mr. Santos to work for him. Mr. Santos testified to the same effect, and stated that Reveira had conducted the numbers business until late April, 1962.
14
Defendant testified that the four men listed above made bets only for themselves and sometimes for their friends but that they did not work for defendant; that anybody who brought in bets, employee or not, would receive a cash discount.
15
Special Agent Gonzales testified that these four men were accepting wagers from others and turning them in to defendant or to his acknowledged agent Santos, usually in defendant's presence.
16
The jury could have resolved the conflict in this testimony by deciding that the defendant did know the four named men were accepting bets for him when he executed the forms setting out only the name of Mr. Santos. Zambito v. United States, 4 Cir., 1963, 315 F.2d 266, cert. den. 373 U.S. 924, 83 S. Ct. 1524, 10 L. Ed. 2d 423.
17
Defendant argues that the jury failed to give fair consideration to the various issues which turned on the jury's estimate of the credibility of the witnesses because of the misconduct of the prosecutor. The prosecutor asked defendant whether his orders came from Chicago. Defendant denied that his orders came from Chicago and when asked whether he knew certain persons named by the prosecutor, said that he had "no idea." No objection was made at that time. In argument to the jury, the prosecutor said:
18
"You heard Special Agents Poppa and Stevens testify that they trailed the defendant from Chicago to East Chicago, from Chicago, Illinois, to East Chicago, Indiana.
19
"Why he traveled is something that you have to decide — I can tell you why, the defendant takes orders from Chicago —"
20
Objection to that statement was sustained. The jury were instructed to disregard it.
21
We have given careful consideration to defendant's assertion that despite the instructions of the Court the jury must have assumed from the statement that the prosecutor had told them that "he could personally assure them that the defendant was an agent of dark forces in Chicago."
22
We cannot agree that in the context of the remarks the effect on the jury was that pictured by the defendant, and that the result of the comment was so prejudicial as to require reversal of the conviction. United States v. Zizzo, 7 Cir., 1964, 338 F.2d 577, 581.
23
The judgment of the District Court is affirmed.
24
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2421387/ | 145 F. Supp. 2d 621 (2001)
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Plaintiff,
v.
Mark W. CHAMBERLAIN, Defendant.
No. 4:01-CV-992.
United States District Court, M.D. Pennsylvania.
June 8, 2001.
*622 Paul Kirk, Joseph A. Dougherty, Rubin & Associates, Paoli, PA, James A. Gibbons, Gibbons Law Firm, Scranton, PA, for plaintiff.
Howard Kellen, Lancaster, PA, for defendant.
OPINION
MUIR, District Judge.
I. Introduction.
On June 5, 2001, Plaintiff Merrill Lynch, Pierce, Fenner & Smith, Inc. (hereinafter "Merrill Lynch"), filed a five-count complaint against Defendant Mark W. Chamberlain for injunctive relief (Count I), breach of contract (Count II), conversion of trade secrets (Count III), breach of fiduciary duty (Count IV) and unfair competition (Count V). Also on June 5, 2001, Merrill Lynch filed a motion for a temporary restraining order and preliminary injunction. A hearing with respect to the request for preliminary injunctive relief was held on June 7, 2001.[1] The following are the Court's findings of fact, discussion, and conclusions of law with regard to Merrill Lynch's request for a preliminary injunction.
II. Findings of Fact.
1. Merrill Lynch is a Delaware corporation maintaining its principal place of business at the World Financial Center, North Tower, New York, New York and transacting business in this judicial district at 600 Baltimore Drive, Wilkes-Barre, Pennsylvania. (Undisputed, hereinafter "U")
2. Merrill Lynch is engaged in the business of, inter alia, providing financial services. (U)
3. Chamberlain is a citizen of the Commonwealth of Pennsylvania residing at 28 2nd Avenue, Kingston, Pennsylvania 18704.(U)
4. Chamberlain commenced his employment with Merrill Lynch in the Company's Wilkes-Barre Office as a financial advisor in July, 1995.(U)
5. Prior to his employment with Merrill Lynch, Chamberlain had worked for over 15 years in the Trust Departments of various institutions.
6. Chamberlain's business contacts through his prior employment resulted in some new clients for Merrill Lynch.
7. Prior to employment at Merrill Lynch, Chamberlain had no experience in the securities industry, held no securities industry licenses, and had never serviced any customers in the securities industry. (U)
8. As a Merrill Lynch financial consultant, Chamberlain serviced hundreds of Merrill Lynch households representing over $23 million in assets under Merrill Lynch management. These accounts generated in excess of $170,000 in gross commission revenues for Merrill Lynch in 2000 alone. (U)
*623 9. Chamberlain resigned from Merrill Lynch's Wilkes-Barre, Pennsylvania office, without prior notice, at the close of business on Friday, June 1, 2001 and immediately joined a competitor of Merrill Lynch, Morgan Stanley Dean Witter Inc. ("Morgan Stanley"), located nearby. (U)
10. Prior to his resignation, Chamberlain removed and retained information pertaining to the customers he serviced at Merrill Lynch, including customers' names, addresses, and telephone numbers. (U)
11. The Merrill Lynch customer information that Chamberlain removed included customer information contained on a laptop computer as well as client account statements which contained the names, addresses, types of accounts and account numbers of clients Chamberlain serviced while employed at Merrill Lynch.
12. Chamberlain removed and retained the Merrill Lynch customer information from Merrill Lynch without Merrill Lynch's knowledge and permission. (U)
13. Chamberlain provided Merrill Lynch customer information to Morgan Stanley.
14. Morgan Stanley has used the customer information provided by Chamberlain to prepare mailings addressed to Merrill Lynch customers that Chamberlain serviced while employed at Merrill Lynch.
15. Chamberlain also used the customer information for the purpose of otherwise advising Merrill Lynch customers that they have the ability to transfer their Merrill Lynch accounts and business to Morgan Stanley. Chamberlain did so by contacting Merrill Lynch customers by telephone over the weekend of June 1-3, 2001.(U)
16. The targeted telephone contacts to Merrill Lynch customers were allegedly placed for the sole purpose of "informing" or "announcing" customers of Chamberlain's change of employment but, in fact, included and evolved into discussions regarding Morgan Stanley and the transfer of customer accounts and business to Morgan Stanley. (U)
17. During these conversations, Chamberlain told customers he could not "solicit" their business, he also told the customers that they were "free to do with their accounts what they wished." At the conclusion of many of these telephone calls, Chamberlain and Morgan Stanley thereafter dispatched account transfer forms to Merrill Lynch customers. (U)
18. In addition, Chamberlain met with Merrill Lynch customers in person following his resignation to present them with account transfer forms. (U)
19. Chamberlain provided customer information to Morgan Stanley so it could prepare packages that included the account transfer forms to be sent to Merrill Lynch customers. These packages were then dispatched by Morgan Stanley to Merrill Lynch customers following Chamberlain's telephone contacts. (U)
20. During at least one of the telephone conversations between Chamberlain and Merrill Lynch customers, Chamberlain stated that "Merrill Lynch is only interested in new trust accounts exceeding $1,000,000."
21. Chamberlain contacted at least one Merrill Lynch customer prior to his June 1, 2001 resignation to inform the customer of his intent to resign from Merrill Lynch and to discuss the possibility of doing business with the customer at Morgan Stanley. (U)
22. In exchange for his decision to leave Merrill Lynch and join Morgan Stanley, Chamberlain was guaranteed by Morgan *624 Stanley a salary of $50,000.00 plus commissions.
23. In the year 2000, Chamberlain's income from his employment with Merrill Lynch was less than $50,000.00.
24. As a condition of his employment with Merrill Lynch, Chamberlain was required to execute an employment agreement known as a Financial Consultant Employment Agreement and Restrictive Covenants ("Agreement") which provides in part:
1. All records, whether original, duplicated, computerized, memorized, handwritten, or in any other form, and all information, contained therein, including names, addresses, phone numbers, and financial information of any account, customer, client, customer lead or prospect ("Account"), are confidential and are the sole and exclusive property of Merrill Lynch. This information, whether provided to me by Merrill Lynch or by any Account, is entrusted to me as an employee and sales representative of Merrill Lynch. I will not use this information or remove any such records from the Merrill Lynch office except for the sole purpose of conducting business on behalf of Merrill Lynch. I agree not to divulge or disclose this information to any third party and under no circumstances will I reveal or permit this information to become known by any competitor of Merrill Lynch either during my employment or at any time thereafter.
This information is extremely valuable to Merrill Lynch and Merrill Lynch takes all reasonable measures to maintain its confidentiality and to guard its secrecy. This information is not generally known outside Merrill Lynch and within Merrill Lynch this information is confidential and used only on a "need to know" basis. This information is developed and acquired by great expenditures of time, effort and money. This information is unique and cannot be lawfully duplicated or easily acquired. Consequently, I agree that these records and the information contained therein are the property of Merrill Lynch and are deserving of trade secret status and protection.
2. If, at any time, I resign from Merrill Lynch, provoke my termination, or am terminated for cause, I agree that for a period of one year following my termination I will not solicit by mail, by phone, by personal meeting, or by any other means, either directly or indirectly, any Account whom I served or whose name became known to me during my employment at Merrill Lynch in any office and in any capacity. My agreement "not to solicit" means that I will not, during my employment and for a period of one year thereafter, initiate any contact or communication, of any kind whatsoever, for the purpose of inviting, encouraging or requesting any Account:
(a) to transfer from Merrill Lynch to me or to my new employer, or
(b) to open a new account with me or with my new employer, or
(c) to otherwise discontinue its patronage and business relationship with Merrill Lynch.
(U)
25. The Financial Consultant Employment Agreement and Restrictive Covenants executed by Chamberlain also contains an express consent to the entry of a preliminary injunction by this Court to preserve the status quo pending arbitration on the merits in the event Chamberlain breached any of the terms of his employment agreement. (U)
*625 26. Chamberlain also agreed in writing to comply with Merrill Lynch's Compliance Outline for Private Client Financial Consultant's, Conflict of Interest Agreement and Guidelines for Business Conduct, each of which contain statements confirming the confidentiality of Merrill Lynch customer information and prohibiting its disclosure to third parties. (U)
27. Chamberlain failed to abide by the terms of the Financial Consultant Employment Agreement and Restrictive Covenants.
III. Discussion.
Preliminary injunctive relief is extraordinary in nature, and is discretionary with the trial judge. Frank's GMC Truck Center, Inc. vs. General Motors Corp., 847 F.2d 100, 101-102 (3d Cir.1988); Glasco vs. Hills, 558 F.2d 179, 179 (3d Cir.1977); Orson, Inc. vs. Miramax Film Corp., 836 F. Supp. 309, 311 (E.D.Pa.1993). This discretion is necessary because of the "infinite variety of situations which may confront" the trial judge. A.L.K. Corp. vs. Columbia Pictures Indus., Inc., 440 F.2d 761, 763 (3d Cir.1971). In considering a motion for preliminary injunctive relief, the court must consider, when appropriate, the following four factors: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the plaintiff will be irreparably injured by denial of such relief; (3) whether granting preliminary relief will result in even greater harm to the non-moving party; and (4) whether granting preliminary relief will be in the public interest. ECRI vs. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987); SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir.1985). Where a movant fails to show either a reasonable probability of success on the merits or irreparable injury, preliminary relief must be denied. In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982).
A plaintiff need not establish with certainty that the plaintiff will succeed on the merits. The burden is on the moving party, however, to make a prima facie showing that the plaintiff has a reasonable probability of succeeding on the merits. Oburn vs. Shapp, 521 F.2d 142, 148 (3d Cir.1975).
The Court of Appeals for this circuit has held that "[i]n order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm." Instant Air Freight Co. vs. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir.1989). In light of the foregoing standard, we will now address the merits of Merrill Lynch's motion for a preliminary injunction.
First, under Pennsylvania law restrictive covenants such as those agreed to by Chamberlain are enforceable. See John G. Bryant Company, Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977). The terms of Chamberlain's employment agreement along with the undisputed evidence that Chamberlain breached that agreement establish that there is clearly a reasonable probability that Merrill Lynch will succeed on the merits.
Second, it is well recognized that injunctive relief is necessary in cases involving violations or threatened violations of restrictive covenants such as are set forth in Chamberlain's employment agreement. See Merrill Lynch vs. Bradley, 756 F.2d 1048 (4th Cir.1985). In Bradley, a case virtually identical to the instant case, the Court of Appeals for the Fourth Circuit held that immediate injunctive relief is *626 necessary to avoid irreparable harm to Merrill Lynch and to maintain the status quo. The Court of Appeals stated:
When an account executive breaches his employment contract by soliciting his former employer's customers, a nonsolicitation clause requires immediate application to have any effect. An injunction even a few days after solicitation has begun is unsatisfactory because the damage is done. The customers cannot be "unsolicited."
756 F.2d at 1054; see also Merrill Lynch vs. Stidham, 658 F.2d 1098 (5th Cir.1981) (breach of employment agreement and misappropriation of trade secrets caused irreparable harm). Merrill Lynch will suffer irreparable harm in the absence of immediate injunctive relief.
The third factor requires us to balance the irreparable harm to Merrill Lynch against the harm to Chamberlain if an injunction is granted. In the year 2000 Chamberlain earned less than $50,000.00. At the present time Chamberlain is guaranteed a salary of $50,000.00 by Morgan Stanley. Also, Chamberlain's employment agreement with Morgan Stanley entitles him to commissions. The issuance of an injunction in this case will not harm Chamberlain but only maintain the status quo. Furthermore, the parties agree that the final merits of this dispute will be resolved in arbitration before the National Association of Securities Dealers. That arbitration is expected to take place within a few weeks. Consequently, any injunction we issue will only be in effect for a relatively short time.
The fourth and final factor we must consider is whether granting preliminary relief will be in the public interest. We are satisfied that the issuance of an injunction would benefit the public because it would promote the enforcement of reasonable contracts. Moreover, an injunction would protect Merrill Lynch's highly sought after client list and the confidentiality of those clients' records and discourage Merrill Lynch's competitors from inducing Merrill Lynch's employees to breach their contracts and convert Merrill Lynch trade secrets. See, e.g., Merrill Lynch v. Napolitano, 85 F. Supp. 2d 491 (E.D.Pa.2000) ("Merrill Lynch persuasively argues that an injunction would serve the public interest by enforcing valid contractual provisions.") (Newcomer, J.); Merrill Lynch vs. Masri, 1996 WL 283644 at *5 (E.D.Pa. 1996) ("Issuing a preliminary injunction serves the public interest of enforcing valid contractual provisions and protecting business investments and confidential customer information.") (Kelly, J.).
Numerous federal and state courts have granted Merrill Lynch and other securities firms the identical injunctive relief requested in this case, including injunctions granted by the United States District Court for the Eastern, Middle and Western Districts of Pennsylvania. See, e.g., Merrill Lynch vs. Rodger, 75 F. Supp. 2d 375 (M.D.Pa.1999) (Caldwell, J.). We will, likewise, grant Merrill Lynch's motion for injunctive relief.
IV. Conclusions of Law.
1. Merrill Lynch has a reasonable probability of success on the merits.
2. Merrill Lynch will be irreparably injured in the event an injunction is denied.
3. Greater injury would be inflicted upon Merrill Lynch by the denial of the motion for a preliminary injunction than will be inflicted upon Chamberlain by granting such relief.
4. The issuance of a preliminary injunction is in the public interest.
An appropriate order will be entered.
*627 ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Pursuant to the requirements of Sections 3 and 4 of the Federal Arbitration Act, 9 U.S.C. §§ 3 and 4, the parties are directed to proceed expeditiously with an arbitration in accordance with the procedures established by the National Association of Securities Dealers.
2. The motion of Merrill Lynch for a preliminary injunction filed on June 5, 2001, is granted.
3. Merrill Lynch shall post a bond in the amount of $5,000 within 3 working days of the date of this order. Failure by Merrill Lynch to post such bond in accordance with this paragraph will result in our vacation of this order.
4. Chamberlain is enjoined and restrained, directly or indirectly, and whether alone or in concert with others, including any officer, agent, representative, or employee of Chamberlain's new employer, Morgan Stanley, until completion of arbitration from:
4.1 soliciting any business from any account of Merrill Lynch whom Chamberlain served or whose name became known to Chamberlain while employed by Merrill Lynch in any office and in any capacity;
4.2 accepting business from any account who was solicited in violation of paragraph 2 of the Financial Consultant Employment Agreement and Restrictive Covenants ("Agreement") or whose records and information were used in violation of paragraph 1 of that Agreement;
4.3 using, disclosing, or transmitting for any purpose, including solicitation of said accounts, the information contained in the records of Merrill Lynch.
5. All original records and copies, computerized recordings or any and all other reproductions thereof, in whatever form, shall be returned by Chamberlain to Merrill Lynch's Wilkes-Barre, Pennsylvania, office within 2 working days of the issuance of this order.
6. This order shall remain in full force and effect until the completion of arbitration.
7. The Clerk of Court shall forthwith transmit a copy of this order by FAX to the offices of those counsel who may be so reached, shall read the dispositive provisions to other counsel over the telephone, and shall mail a copy to each counsel.
8. The Clerk of Court shall close this case.
9. The court retains jurisdiction of this case for the purpose of enforcing, modifying or rescinding, if necessary or advisable, any of the provisions of this order.
NOTES
[1] At the hearing counsel for both parties agreed that the hearing should be considered as one held on Merrill Lynch's request for a preliminary injunction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2427286/ | 317 F. Supp. 2d 605 (2004)
GOVERNMENT OF THE VIRGIN ISLANDS, Appellant,
v.
Kahli UBILES, Jeffrey Roberts, Jason Roberts, and Albert Douglas, Appellees.
Nos. 2000-502, 2000-503, 2000-504, 2000-506.
District Court, Virgin Islands, Appellate Division. D. St. Thomas.
May 3, 2004.
*606 Maureen Phelan, Assistant Attorney General, V.I. Department of Justice, St. Thomas, VI, for Appellant.
Pedro K. Williams, Esq., Law Offices of Frazer & Williams, St. Thomas, VI, for Appellee Kahli Ubiles.
Leigh F. Goldman, Esq., Smock Law Offices, St. Thomas, VI, for Appellee Albert Douglas.
Debra S. Watlington, Territorial Public Defender, St. Thomas, VI, for Appellee Jeffrey Roberts.
Before: RAYMOND L. FINCH, Chief Judge of the District Court of the Virgin Islands; THOMAS K. MOORE, Judge of the District Court of the Virgin Islands; and PATRICIA D. STEELE, Judge of the Territorial Court, Division of St. Croix, sitting by designation.
MEMORANDUM
PER CURIAM.
I. SUMMARY
The government has appealed the trial judge's decision to dismiss, with prejudice, the charges against the defendants as a sanction for the government's violation of a discovery deadline. For the reasons set forth below, we hold a less severe sanction should have been imposed and vacate the trial court's dismissal.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 1999, the defendants were traveling in a motor vehicle that was stopped after Virgin Islands Police Officers allegedly observed that the driver of vehicle was not wearing a seat belt. (Appellant Br. at 8.) Upon stopping the vehicle, the officers on the scene allegedly smelled a strong odor of marijuana and, after ordering the defendants out of the vehicle, noticed a knife handle sticking out from under the front passenger seat. (Id.) When one of the officers reached under the seat, he found a bag containing a handgun with an obliterated serial number. (Id.) The defendants were placed under arrest and, on December 1, 1999, charged by information with possession of a firearm in violation of 23 V.I.C. § 451(d).[1] (Appellee App. at 1.) The defendants entered not guilty pleas on December 2, *607 1999, and the trial judge set a discovery deadline of January 7, 2000. (Id. at 4.)
On July 7, 2000, six months after the trial court's discovery deadline and three days before jury selection was scheduled to begin, the government produced supplemental discovery to the defendants. (J.A. at 48; Douglas Br. at 2.) In this supplemental discovery, the government disclosed for the first time that a forensics test had determined the firearm was operable, but the government did not produce the report of the forensics expert in this untimely disclosure. (J.A. at 48.) On July 10, 2000, the parties came before the Territorial Court for a pre-trial conference and for jury selection. Counsel for appellee Albert Douglas informed the trial judge that he had not received the forensics report and requested that the trial judge continue the trial until a later date, disallow admission of evidence related to the report, or dismiss the case with prejudice. (Id. at 48, 55, 68, 89.) Rejecting these requests, the trial judge instead insisted that the trial would not be delayed and suggested several individuals who would be able to test the weapon for the defense attorneys that afternoon. (Id. at 49-52.)
During this discussion, the attorney for the government claimed he had been trying to get the report for months but had only obtained it in the last week because Police Department officials were previously unwilling to enter the building where the report was stored as it had been declared unsafe due to asbestos contamination. (J.A. at 61-63; Appellant Br. at 13.) The government's attorney then distributed the report to the defendants and the trial judge. (J.A. at 62.) After reviewing the report, the trial judge noted that it was dated November 12, 1999, and ruled that it would not be admissible at trial given the length of time it had been in the government's possession.[2] (Id. at 62, 67-68, 72-73.) The government then moved for a dismissal without prejudice, whereas the defendants requested a dismissal with prejudice. (Id. at 74, 89.) The trial judge ruled from the bench that he would dismiss the case, but reserved judgment on whether the dismissal would be with or without prejudice. (Id. at 90.) On August 4, 2000, the trial judge entered an amended order of dismissal, specifying that the case was dismissed with prejudice as a sanction against the government for its failure to abide by the court's discovery deadlines and for its history of dilatory tactics. (Id. at 4-5.)
III. ANALYSIS
A. Jurisdiction and Standards of Review
This Court has jurisdiction to review Territorial Court orders terminating a prosecution in a defendant's favor, except where there is an acquittal on the merits. See 4 V.I.C. § 39(c); Section 23A of the Revised Organic Act.[3] The appellate court accords plenary review to the trial court's interpretation of legal precepts; however, factual findings are reviewed for *608 clear error. Id.; see Poleon v. Government of the V.I., 184 F. Supp. 2d 428 (D.V.I.2002). A trial judge's decision to dismiss with prejudice as a sanction for failure to abide by discovery orders will only be reversed for abuse of discretion. See Gov't of the Virgin Islands v. Blake, 118 F.3d 972, 977 (3d Cir.1997); United States v. Maples, 60 F.3d 244, 246 (6th Cir.1995).
B. It Was An Abuse of Discretion to Dismiss With Prejudice
After noting "the Government's history of dilatory tactics, and its severe abuse of the January, 2000 discovery deadline," the trial judge's August 4, 2000 amended order dismissed the case with prejudice as a sanction against the government. Rule 16(d)(2) of the Federal Rules of Criminal Procedure allows trial courts to impose sanctions for discovery violations in criminal cases.[4] It provides:
if a party fails to comply with this rule, the court may order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (b) grant a continuance; (c) prohibit the party from introducing the undisclosed evidence; (d) or enter any other order that is just under the circumstance.
We found no precedential opinion of the Third Circuit Court of Appeals providing clear guidance or standards regarding the imposition of sanctions under Rule 16(d)(2).[5] Courts of Appeals in other Circuits, however, have identified the following factors for consideration in determining the appropriate sanction under Rule 16(d)(2) for noncompliance with a discovery order: (1) the reasons for the government's delay in producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the government's delay; and (3) the feasibility of curing the prejudice with a continuance.[6]See, e.g., United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir.1988); United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir.1985).
Following this framework, we find that the trial judge abused his discretion in imposing the most severe sanction, dismissal *609 with prejudice.[7] The government's delay in turning over the forensics report was caused not by bad faith, but instead its inability or unwillingness to coordinate with the Police Department in retrieving the report from a condemned storage room. Moreover, it is not clear that the defendants were even prejudiced by the government's delay in turning over the report, as the trial judge initially suggested they could have the gun tested that afternoon and proceed with trial the following day as scheduled.[8] (J.A. at 49-52.) Assuming, solely for the sake of argument, that the defendants were prejudiced, this prejudice could have been cured by a less severe sanction, such as by disallowing evidence of the report at trial or granting a brief continuance.
As this Appellate Division noted in a recent case where the government failed to disclose exculpatory, rather that inculpatory, evidence prior to trial, "a just remedy for a discovery violation under the circumstances of this case would have been ... a continuance for the defendant to investigate and update his strategy," rather than a dismissal with prejudice. Government of the Virgin Islands v. Fahie, 304 F. Supp. 2d 669, 677 (D.V.I.App.Div.2004).
IV. CONCLUSION
As the government's violation of the trial judge's discovery order could have been remedied by granting a continuance or some other sanction short of dismissing the case with prejudice, we hold the trial judge abused his discretion. Accordingly, we will vacate the order of dismissal and remand the case to Territorial Court for further proceedings consistent with this opinion.
ORDER
AND NOW, this 5th day of May, 2004, having considered the parties' submissions and arguments, and for the reasons set forth in the accompanying memorandum of even date, it is hereby
ORDERED that the trial judge's order of dismissal with prejudice is vacated; it is further
ORDERED that this case is remanded to the Territorial Court for proceedings consistent with this Court's decision.
NOTES
[1] On July 6, 2000, the Territorial Court granted the government's motion to amend the information to include a charge of possession of a firearm with an obliterated serial number in violation of 23 V.I.C. § 481. (J.A. at 1-2.)
[2] The government argued at the pre-trial hearing that the report had not been in its possession since November 12, 1999 because the Virgin Islands Police department held it in storage and would not or could not retrieve it. (J.A. at 61, 63.) The trial judge rejected this argument, after explaining to the government's attorneys that the Police Department was part of the executive branch and, consequently, any documents held by the Police Department would be considered in the possession of the attorneys employed by the government. (J.A. 69-70.)
[3] Revised Organic Act of 1954, § 23A, 48 U.S.C. § 1614, reprinted in V.I. CODE ANN., Historical Documents, Organic Acts, and U.S. Constitution at 159-60 (1995) (preceding V.I. CODE ANN. tit. 1).
[4] The Federal Rules of Criminal Procedure are applicable to the Territorial Court pursuant to Rule 7 of the Rules of the Territorial Court. See Terr. Ct. R. 7 ("The practice and procedure in the Territorial Court shall be governed by the Rules of the Territorial Court and, to the extent not inconsistent therewith, by the ... Federal Rules of Criminal Procedure ....").
[5] In a non-precedential opinion, the Third Circuit Court of Appeals instructed that, when imposing sanctions under Rule 16(d)(2), "a trial court should ... `impose the least severe sanction that will accomplish prompt and full compliance with the discovery order.'" Jacobs v. Gov't of the Virgin Islands, 53 Fed.Appx. 651, 652 (3d Cir.2002) (quoting United States v. Ivy, 83 F.3d 1266, 1280 (10th Cir.1996)).
[6] This case does not involve analysis under Brady v. Maryland, as the forensic report that the government failed to disclose was inculpatory. 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A recent decision of this Appellate Division involving a Brady analysis informs our decision here, however. See Gov't of the Virgin Islands v. Fahie, 304 F. Supp. 2d 669 (D.V.I.App.Div.2004). In Fahie, the government failed to disclose to the defense prior to trial a weapon trace report that tended to exculpate the defendant. Id. at 671-72. The trial judge ruled that the failure to disclose the information was a violation of Rule 16 and dismissed the case with prejudice. Id. at 672. On appeal, we agreed with the trial court that the government had committed a Brady violation, but ruled that dismissal with prejudice was not the proper remedy, as "the Territorial Court easily could have granted a mistrial or a short continuance, or pursued avenues other than dismissal." Id. at 677.
[7] These three factors should merely guide the trial court in its consideration of sanctions; they are not intended to completely dictate the bounds of the court's discretion. "[I]t is neither necessary nor appropriate for us to attempt to draft a comprehensive set of standards to guide the exercise of discretion in every possible case." Taylor v. Illinois, 484 U.S. 400, 414, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) (rejecting argument that preclusion is never a permissible sanction).
[8] The trial judge made no explicit finding that the defendants were prejudiced by the government's untimely production of the forensics report. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/540812/ | 902 F.2d 324
UNITED STATES of America, Plaintiff-Appellee,v.Jesus GARCIA, Defendant-Appellant.
No. 89-3840Summary Calendar.
United States Court of Appeals,Fifth Circuit.
May 18, 1990.
David J. Finger, Levine & Finger, Miami, Fla., for defendant-appellant.
Robert J. Boitmann, Steven J. Irwin, Asst. U.S. Attys., John Volz, Constantine Georges, U.S. Attys., New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, DAVIS and JONES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
1
Appellant appeals his sentence following entry of a plea of guilty. We find no error and affirm.
I.
2
Defendant-appellant Jesus Garcia was charged, in a two-count indictment, with conspiracy to possess with intent to distribute 25 kilograms of cocaine, in violation of 21 U.S.C. Secs. 846, 841(a)(1); and possession with intent to distribute 25 kilograms of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. After initially entering pleas of not guilty, Garcia entered a plea of guilty to the first count of the indictment (the conspiracy count), pursuant to a plea agreement with the government. The court accepted the plea and ordered a pre-sentence investigation.
3
Upon completion of the presentence investigation (PSI), the PSI report was issued and both the government and Garcia were permitted to file objections and to present testimony in a sentencing hearing. Garcia was sentenced to a prison term of 188 months, to be followed by a five-year supervised release term. The court accepted the report of the probation officer which concluded that Garcia was engaged in the distribution of 275 kilograms of cocaine rather than the 25 kilograms charged in the indictment and stipulated to in the plea bargain agreement. This fixed the base offense level at 36 rather than at 34. In addition, the court assessed a two-level increase for obstruction of the administration of justice and an offsetting two-level decrease for acceptance of responsibility. This yielded an applicable guideline range of 188-235 months, to the low end of which Garcia was sentenced.
4
Garcia filed a timely notice of appeal from the sentence imposed by the court; he does not challenge his conviction.
II.
A.
5
Garcia first argues that the district court erred in increasing the offense level by two for obstructing the administration of justice. The district court found that when asked about prior arrests, he told Probation Officer Thomas Mallia he had been arrested once in Bahamian waters for fishing where fishing was prohibited. What he did not tell Mallia was that he had also been arrested, in connection with the same incident, for possession of marijuana. That charge was subsequently dismissed. The court also found that Garcia told Pre-trial Services Officer Barbara Davis that he had only traffic offenses in Florida, again omitting the marijuana arrest.
6
The applicable provision of the Sentencing Guidelines, Sec. 3C1.1, instructs that "[i]f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels." Application Note 1(e) to the same section indicates that "furnishing material falsehoods to a probation officer in the course of a presentence or other investigation for the court" may provide a basis for the upward adjustment.
7
A determination made by the trial court to increase the offense level for obstructing the administration of justice is reviewed by this court for clear error. United States v. Pierce, 893 F.2d 669, 677 (5th Cir.1990). Here, after listening to the testimony of Mallia, Davis, and Garcia at the sentencing hearing, the court determined that "there was a conscious effort on the part of [Garcia] to misrepresent, or at least hide, a highly relevant instance of prior possible criminal conduct, or at least a charge involving criminal conduct."
8
Garcia points out that Application Note 2 to the guideline provides that "suspect testimony and statements should be evaluated in a light most favorable to the defendant." We explained in United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989), that this note does not require the sentencing court to believe the defendant, but "simply instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction."
9
Although the evidence concerning Garcia's statements about the prior arrest is conflicting, the record clearly indicates that the trial judge was firmly convinced Garcia intentionally lied about the arrest during the presentence investigation. We therefore find no error in the trial court's decision to increase Garcia's offense level for willful obstruction of the administration of justice.
B.
10
Garcia next contends that the trial court erred in its application of the guidelines by determining that his relevant conduct involved a greater amount of cocaine, resulting in a higher base offense level, than the amount to which the parties had stipulated and which the court had accepted as the relevant conduct at the time the court accepted the plea. Garcia does not suggest that the district court is bound by the quantity of drugs mentioned in the indictment. He simply maintains that the court is bound by stipulations entered into between the parties and which were accepted by the court when he entered his plea. This court, in United States v. Sarasti, 869 F.2d 805, 806-07 (5th Cir.1989), held that the trial court is not bound by the quantity of drugs mentioned in the indictment.
11
In essence, Garcia appears to contend for a benefit of the bargain approach under which the court would be bound by the express terms of the plea agreement. But this is not the approach the Commission adopted.
12
The Commission, in referring to plea agreements, has provided that "[t]he court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing." Sec. 6B1.4(d). Garcia interprets the commentary to Sec. 6B1.4, that "[s]ection 6B1.4(d) makes clear that the court is not obliged to accept the stipulation of the parties," to mean that once the court has accepted the stipulation, it has thereby bound itself to the terms of the stipulation irrespective of whatever additional information may be brought to the court's attention in the presentence report. Garcia simply fails to consider the balance of the commentary, which provides that
13
[e]ven though stipulations are expected to be accurate and complete, the court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information.
14
Sec. 6B1.4 commentary (emphasis added).
15
A fair reading of the section and commentary support the district court's position that it was entitled to consider facts other than those stipulated in arriving at relevant sentencing information.
16
Because we find no error, the judgment of the district court is AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/515791/ | 863 F.2d 617
GREAT HAWAIIAN FINANCIAL CORPORATION, a Hawaii corporation,Plaintiff- Appellant,v.Benjamin AIU; Leslie Berger; Dr. Donald Corbin; FujokaInvestment Company; Iwao Kamemoto; Minoru Kanda; MinoruKimura; Kenichi Kondo; Clarence Kusumoto; TakeichiMiyashiro; Toshiko Mizuha; Richard Nakahara; NoboruNakasone; Hideshi Niimi; Yoshi Nishimura; YukitsuguNishimura; Norman Okamura; Kinzo Okumura; Roy Shigemura;Kazuto Shimizu; Carl Shinoda; Kazuaki Tanaka; MasakazuTanaka; Tetsuo Tsutsuse; Gordon Uyeda, Trustee for StaceyUyeda; Iwao Watanabe; Francis Ako; Pyramid InvestmentCo.; Maurice Karamatsu; Frank Ogawa; H.M. Sakoda;Franklin Tokioka; Lionel Tokioka; Masayuki Tokioka; ChuckG. Shima; Rodney Y. Inaba; Paiko, Inc.; Robert Oshiro;Mrs. Albert Inaba; Masaru Uyeda; Hirotoshi Yamamoto;Edward Yoshimasu, Defendants-Appellees.GREAT HAWAIIAN FINANCIAL CORPORATION, a Hawaii corporation,Plaintiff- Appellant,v.Benjamin AIU; Leslie Berger; Fujioka Investment Company;Donald Corbin; Iwao Kamemoto; Minoru Kanda; MinoruKimura; Kenichi Kondo; Clarence Kusumoto; TakeichiMiyashiro; Toshiko Mizuha; Richard Nakahara; NoboruNakasone; Hideshi Niimi; Yoshi Nishimura; YukitsuguNishimura; Norman Okamura; Kinzo Okumura; Roy Shigemura;Kazuto Shimizu; Carl Shinoda; Gordon Uyeda, Trustee forStacey Uyeda; Tetsuo Tsutsuse; Kazuaki Tanaka; MasakazuTanaka; Iwao Watanabe; Hirotoshi Yamamoto; Rodney Y.Inaba; Paiko, Inc.; Pyramid Investment Co.; Norman N.Inaba, Trustee for Shari Y. Inaba and Daryl H. Inaba; ChuckG. Shima; Franklin Tokioka; Lionel Tokioka; MauriceKaramatsu; Masayuki Tokioka; Frank Ogawa; Tom Kobuchi;H.M. Sakoda; Myrtle Wong Hee, personal representative forthe estate of NG Sheong Hee; Mrs. Albert Inaba; EdwardYoshimasu, Defendants-Appellees.GREAT HAWAIIAN FINANCIAL CORPORATION, a Hawaii corporation,Plaintiff-Appellant,andDamon, Key, Char & Bocken, a law corporation, Appellant,v.Benjamin AIU; Leslie Berger; Dr. Donald Corbin; FujiokaInvestment Company; Iwao Kamemoto; Minoru Kanda; MinoruKimura; Kenichi Kondo; Clarence Kusumoto; TakeichiMiyashiro; Toshiko Mizuha; Richard Nakahara; NoboruNakasone; Hideshi Niimi; Yoshi Nishimura; YukitsuguNishimura; Norman Okamura; Kinzo Okumura; Roy Shigemura;Kazuto Shimizu; Carl Shinoda; Kazuaki Tanaka; MasakazuTanaka; Tetsuo Tsutsuse; Gordon Uyeda, Trustee for StaceyUyeda; Iwao Watanabe; Francis Ako; Pyramid InvestmentCo.; Maurice Karamatsu; Frank Ogawa; H.M. Sakoda;Franklin Tokioka; Lionel Tokioka; Masayuki Tokioka; ChuckG. Shima; Rodney Y. Inaba; Paiko, Inc.; Robert Oshiro;Mrs. Albert Inaba; Masaru Uyeda; Hirotoshi Yamamoto;Edward Yoshimasu, Defendants-Appellees.
Nos. 87-2370, 87-2577 and 87-2702.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted April 7, 1988.Memorandum Sept. 13, 1988.Opinion Dec. 14, 1988.
R. Charles Bocken, Damon, Key, Char & Bocken, Honolulu, Hawaii, for plaintiff-appellant.
Arthur B. Reinwald, Reinwald, O'Connor, Marrack & Hoskins, Honolulu, Hawaii, for defendants-appellees.
Appeal from the United States District Court for the District of Hawaii.
Before WALLACE, REINHARDT and NOONAN, Jr., Circuit Judges.
ORDER
The memorandum disposition filed herein on September 13, 1988 is redesignated a per curiam opinion.
OPINION
PER CURIAM:
1
Great Hawaiian Financial Corporation (Great Hawaiian) appeals the district court's entry of summary judgment in favor of various former members of the general partnership known as Hilolani Acres Joint Venture (partners). Great Hawaiian also appeals the district court's orders awarding attorneys' fees under Hawaii law to the partners as the prevailing parties in an assumption action and sanctioning Great Hawaiian under Fed.R.Civ.P. 11 for filing a frivolous motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse the orders granting summary judgment and imposing sanctions, and vacate the order awarding attorneys' fees to the partners.
2
We review the district court's order granting summary judgment de novo. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986) (Ashton ). Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the materials on file in the light most favorable to the nonmoving party. Ashton, 780 F.2d at 818. The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (Anderson ). If the moving party satisfies this burden, the opponent must set forth specific facts showing that there remains a genuine issue for trial. Fed.R.Civ.P. 56(e). However, no defense to an insufficient showing is required. Neely v. St. Paul Fire & Marine Insurance Co., 584 F.2d 341, 344 (9th Cir.1978); see also Anderson, 477 U.S. at 250, 257, 106 S.Ct. at 2511, 2514 (a party opposing a properly supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial).
3
The district court based its determination that the partners were entitled to judgment as a matter of law on its finding that two events caused a dissolution of the partnership in 1971: first, the withdrawal of three of the four managing partners, and second, the transfer of title to partnership assets to Great Hawaiian Mortgage Corporation (Great Hawaiian Mortgage). Great Hawaiian argues that neither the departure of several managing partners nor the transfer of title justifies the district court's conclusion that no issue of fact remained regarding the existence of a partnership between the partners after 1971.
4
Our determination of the issues is based on Hawaiian law. Although Hawaiian statutes and case law do not answer the questions raised in their entirety, there is sufficient other law, which we believe Hawaii would probably accept. Thus, certification of legal questions to the Hawaii Supreme Court is unnecessary at this stage.
5
Under Hawaii law, a partnership is defined as "an association (including a joint venture) of two or more persons to carry on as co-owners of a business for profit." Haw.Rev.Stat. Sec. 425-106. Whether a joint venture or partnership exists is normally a question of fact. Matter of O.W. Limited Partnership, 4 Haw.App. 487, 668 P.2d 56, 62 (1983). Under Hawaii law, a partnership may be found even in the absence of a formal contract between the parties. Id. (existence of joint venture depends upon conduct of the parties); Buffandeau v. Shin, 60 Haw. 280, 587 P.2d 1236, 1237 (1978) (per curiam) ("[T]here are no specific indices of partnership, although an agreement to share in the profits and losses of a business is weighty evidence thereof.").
6
Great Hawaiian presented significant probative evidence that the partners were engaged in an association for profit within the meaning of Hawaii partnership law during the period in which the loans were made. Great Hawaiian submitted the partners' joint venture agreement, under which the partners agreed to do business together as members of a joint venture formed for the purpose of "dealing with" certain real property owned by the joint venture. Great Hawaiian submitted evidence that the partnership continued to do business during the relevant period, including promissory notes signed by Inaba, a managing partner of the joint venture, on behalf of the joint venture. See Haw.Rev.Stat. Sec. 425-123(2) (continuation of business). Great Hawaiian also submitted evidence that the partners took tax deductions for losses incurred by the joint venture during a period spanning approximately two decades, including the 1974-76 period when the loans were made. These tax filings alone constitute significant evidence, as admissions of party opponents, that a general partnership existed during the relevant period. See Reddington v. Thomas, 45 N.C.App. 236, 262 S.E.2d 841, 843 (1980). In addition, Great Hawaiian submitted depositions of several of the defendant partners, in which various partners testified to their beliefs that they would still be entitled to a share of the venture's profits if it were ever to turn a profit. These statements, like the tax return information, constitute significant probative evidence that the partners continued to regard themselves as engaged in an association for profit long after the partnership allegedly dissolved.
7
In light of this evidence, the district court erred in concluding that there was no issue of material fact regarding the existence of a partnership during the relevant period of 1974-76. The evidence presented by the partners in support of their summary judgment motion did not establish that no partnership existed during the relevant period. At best, it established that there were genuine issues for trial regarding the continued existence of the partnership after the events of 1971.
8
For example, evidence that former managing partners Shima, Tokioka, and Yamamoto withdrew from the partnership in 1981 indicates that the original partnership including those partners was dissolved as to those partners. See Thomas v. American National Bank, 704 S.W.2d 321, 323-24 (Tex.1986); Adams v. Jarvis, 23 Wis.2d 453, 127 N.W.2d 400, 403 (1964) (Adams ); McKellar v. Bracewell, 473 S.W.2d 542, 549 (Ct.Civ.App.Tex.1971) (McKellar ) ("The withdrawal of a partner from apartnership operates to dissolve the partnership as to the withdrawing partner.... The resignation of [partners] effect[s] a dissolution of the partnership as to their interests in it ... [It] did not effect a common law dissolution of the entire firm."). However, it does not follow that the withdrawal of three partners necessarily affected the rights and obligations of the remaining partners. McKellar, 473 S.W.2d at 549; Adams, 127 N.W.2d at 403; see also Frett v. Benjamin, 187 F.2d 898, 900-01 (3d Cir.1951). This is especially true where, as here, the agreement addressed the withdrawal of members of the partnership and contemplated continuation of the business in spite of such withdrawals. Adams, 127 N.W.2d at 403; see also Crane & Bromberg on Partnership, Sec. 73, at 417-19 (1968) (withdrawal of partner need not result in dissolution of entire firm where partnership agreement contemplates changes in membership). In sum, the evidence concerning the withdrawal of three managing partners submitted in support of the partners' motion for summary judgment did not establish the absence of a disputed material fact regarding the continued existence of a partnership during the relevant period.
9
Similarly, evidence that the partners were merely "passive" participants who were unaware that three partners had withdrawn and that Inaba continued to represent the partnership did not establish the absence of genuine factual issues regarding the remaining partners' liability to repay the loans. Partnership law does not distinguish between "passive" general partners and "active" general partners. See Haw.Rev.Stat. Sec. 425-109(1) ("Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which the partner is a member binds the partnership...."); Crane & Bromberg on Partnership Sec. 24A, at 141-42 (a dormant partner "is nonetheless a partner, liable for firm obligations like other partners"). Moreover, an individual partner's ignorance of a particular event or transaction ordinarily does not relieve him of responsibility for an action undertaken on behalf of the partnership: "[n]otice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter ... operate as notice to or knowledge of the partnership...." Haw.Rev.Stat. Sec. 425-112. The district court thus erred in concluding that the withdrawal of some partners, together with the ignorance and passivity of the remaining partners, established the absence of any remaining factual issue regarding the partnership's continued existence and entitled the partners to judgment as a matter of law.
10
The district court also found that the assignment of partnership assets to Great Hawaiian Mortgage completed the sole undertaking for which the partnership was formed and thus caused its dissolution as a matter of law. The district court supported this determination by citing to Haw.Rev.Stat. Sec. 425-131(1)(a), which states that dissolution is caused "[b]y the termination of the definite term or particular undertaking specified in the agreement." Great Hawaiian argues that the transfer of title to Great Hawaiian Mortgage did not terminate the particular undertaking of the partnership.
11
The joint venture agreement provided that the partnership was formed for the purpose of "dealing with," not merely holding title to, the property in question. The assignment of the property did not terminate this undertaking. Under the development agreement between the joint venture and Great Hawaiian Mortgage, the partnership retained the right to receive 65% of net profits from development of the property and the right to regain legal title to the property on demand and without cost. The agreement also prohibited Great Hawaiian Mortgage from assigning or mortgaging developed lots without the prior written approval of the partnership. The development agreement thus clearly provided that the partnership, designated as the "owner" in the agreement, would continue to "deal with" and profit from the land in spite of the transfer of legal title to Great Hawaiian Mortgage. Moreover, evidence submitted by Great Hawaiian that the partners continued to reap tax benefits from their participation in the partnership subsequent to the transfer of title indicates that the partners continued to benefit from their undertaking during the relevant period. The district court thus erred in concluding that the transfer of legal title to Great Hawaiian Mortgage necessarily terminated the particular undertaking of the partnership within the meaning of Haw.Rev.Stat. Sec. 425-131(1)(a).
12
Because neither the withdrawal of the three partners nor the transfer of legal title established the absence of a genuine issue of material fact regarding the existence of the partnership during the period in which the loans were made, we reverse the order granting summary judgment to the defendants. Consequently, we also vacate the order granting attorneys' fees to the defendants as prevailing parties in the action in the district court. In addition, we reverse the order sanctioning Great Hawaiian for filing a frivolous motion for reconsideration of the district court's summary judgment order. The arguments raised in Great Hawaiian's motion were the same as those that now persuade us to reverse the district court's summary judgment order and thus were not frivolous within the meaning of Fed.R.Civ.P. 11.
13
Finally, Great Hawaiian urges us to address the question whether the district court erred in determining (albeit in dicta) that Great Hawaiian was not entitled to interest on its loans to the partnership. The district court based this ruling on its conclusion that Great Hawaiian, as a member of the partnership, should not be allowed to "profit" from its transactions with the partnership. The district court cited no authority in support of its statement that interest on a loan made to a partnership constitutes a "profit" within the meaning of Haw.Rev.Stat. Sec. 425-121(1). Nor did the district court attempt to distinguish Haw.Rev.Stat. Sec. 425-118(c), which provides that: "[a] partner, who in aid of the partnership makes any payment or advance beyond the amount of capital which he agreed to contribute, shall be paid interest from the date of the payment or advance." It would be premature, however, for us to decide whether Great Hawaiian is entitled to interest on the loans made in this case at this time. We therefore remand this question to the district court for further consideration. Similarly, we do not pass upon whether the 1971 property transfer and the Great Hawaiian loans were a fraud on the partnership. Those issues are not properly before us.
14
REVERSED AND REMANDED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578198/ | 957 F.2d 12
UNITED STATES of America, Appellee,v.Bernard Michael McLAUGHLIN, Defendant, Appellant.UNITED STATES of America, Appellee,v.David Carl BRUCE, Defendant, Appellant.
Nos. 91-1455, 91-1456.
United States Court of Appeals,First Circuit.
Heard Oct. 10, 1991.Decided Feb. 18, 1992.
Jonathan R. Saxe, by Appointment of the Court, with whom Twomey and Sisti Law Offices, Portsmouth, N.H., was on brief for appellant Bernard Michael McLaughlin.
Bernard J. Robertson, Exeter, N.H., for appellant David Carl Bruce.
Arnold H. Huftalen, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on briefs for the U.S.
Before CAMPBELL, Circuit Judge, BROWN,* Senior Circuit Judge, and BOWNES, Senior Circuit Judge.
LEVIN H. CAMPBELL, Circuit Judge.
1
David Bruce and Bernard McLaughlin appeal from their convictions in the United States District Court for the District of New Hampshire for bank fraud and conspiracy to commit bank fraud. Finding no reversible error, we affirm the convictions.
2
On appeal, Bruce's claims of error revolve around the district court's denial of his motion to suppress based upon a purported immunity agreement. McLaughlin, on the other hand, challenges the lower court's evidentiary rulings at trial, its refusal to sever, and the alleged insufficiency of evidence. We turn first to Bruce's claims of error.
I. Bruce--Background
3
The United States Customs Service, in conjunction with the FBI and the IRS, was conducting an investigation into various illegal activities of one William Wood ("Wood"). In 1987, Bruce began cooperating with the authorities in the investigation of a large scale fraud involving Wood and the Bank of Marlborough in Massachusetts. Bruce was contacted because some checks from the Bank of Marlborough were traced to Bruce's business, Exeter Restaurants. Bruce agreed to cooperate and did cooperate, meeting with FBI, customs, and other investigators at various times. According to Bruce's testimony at the suppression hearing, "in the initial meetings ... the subject was primarily the Wood affair ... but with each meeting the discussion was leaning in the direction of entangling Bernard McLaughlin, myself and others." Bruce said he was assured by law enforcement authorities that they "would always do everything they possibly could to see that [he] was not indicted in this matter" in return for the information he was providing. The record is unclear as to Bruce's precise connection with the Bank of Marlborough fraud. It appears, however, that Bruce travelled to and from Canada on Wood's behalf and that this activity was being investigated at the time.
4
In the course of the foregoing investigation, lawful wiretaps were placed on Wood's telephone in 1987-88. Certain overheard conversations indicated that Bruce and McLaughlin, in conjunction with Wood, were involved in a separate conspiracy to defraud the Bank of New England in Springfield, Massachusetts. These recorded conversations, ultimately used as evidence in the present case, revealed that McLaughlin sought a loan from the Bank of New England. The stated purpose of the loan was to purchase a piece of heavy construction equipment, namely a Caterpillar 966 C, from Bruce. To secure this loan, McLaughlin made several false representations to the Bank of New England. He offered as collateral another Caterpillar he supposedly owned and the Caterpillar he was supposedly to buy from Bruce. Neither Bruce nor McLaughlin, however, owned the equipment. The serial numbers of both machines, required as proof of ownership, were supplied by Wood. Believing that the principal lent to McLaughlin was secured by the two pieces of equipment, the Bank of New England issued a check in the amount of $60,000 to Exeter Restaurants. Bruce in turn deposited the check in his account. Subsequently, on March 5, 1987, Bruce wrote two checks to McLaughlin, one for $50,000 and the other for $10,000.
5
Between 1988 and 1990, Bruce continued to cooperate with the government and met several times with officials. While Bruce testified that his cooperation extended to the subject matter of the instant case, government witnesses denied this. In 1990, Bruce met with Assistant U.S. Attorney Cannon. Bruce testified they may have met twice or three times, but Cannon testified, and the district court supportably found, that they met only twice. The first meeting, in March, 1990, was at the same time Bruce appeared to testify before a grand jury. It is undisputed that Bruce's grand jury testimony then was unrelated to the present case. Before he testified, according to Bruce's version,
6
Mr. Cannon said that the fellows from each agency have told him of my past cooperation and he certainly hoped that that would continue, and if it did continue he would do everything within his power to see that I was not indicted.
7
Bruce went on to say that Cannon told him he (Cannon) was "the person who ultimately made that decision.... And when he told me that I told him everything fully and completely about this case." (Emphasis supplied.)
8
Cannon, in his own testimony, did not disagree that he had made the stated promise. However, Cannon stoutly denied that any of their discussion at this first meeting pertained in any way to the Bank of New England matter. Cannon testified that he (Cannon) knew nothing at this time of "this case now before the Court." He indicated that the conversations with Bruce at the first meeting had to do with the latter's taking checks to and from Canada for Wood, a customs violation totally unrelated to the instant indictment.
9
A month or more after the grand jury session, Cannon said he obtained another investigator's file and for the first time learned of Bruce's implication in the Bank of New England fraud. Cannon immediately met with Bruce in June, 1990, at which time Cannon informed Bruce that the earlier recorded conversations implicated him (Bruce) in the conspiracy to defraud the Bank of New England, and that he thought that Bruce's involvement in that conspiracy was such that he would probably be indicted. Despite this warning, Cannon testified, Bruce continued to cooperate. According to Cannon, Bruce "indicated that whether or not we intended to indict him was up to us; that he would still continue to be truthful, as he had tried to be in the past."
10
On August 1, 1990, a grand jury returned a three-count indictment charging McLaughlin with two counts of bank fraud in violation of 18 U.S.C. §§ 10141 and 13442 and one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371. Bruce was charged only with a single count of conspiracy to commit bank fraud, based exclusively on his alleged involvement in the Bank of New England matter. Wood was not indicted in this matter. Bruce engaged in plea negotiations but these broke down. The day his trial was scheduled to begin, Bruce moved to suppress, contending that, in reliance upon the government's broken promise to provide immunity, he had produced incriminatory evidence that the government intended to use at his trial. As this evidence had been, in his view, coerced, he requested its suppression. The evidence Bruce sought to suppress included the two checks he wrote to McLaughlin and the checking account statement from his own bank which reflected that transaction. Bruce argued that he had earlier turned over those documents to FBI agents in Boston while his informal immunity agreement was in effect, and that the government could not use them as evidence against him because doing so would constitute a violation of the immunity agreement and of his Fifth Amendment privilege against self-incrimination.3 Bruce also asked the court to dismiss the charge against him as violative of the promised immunity.
11
The government responded that any informal immunity agreement was limited to the Bank of Marlborough fraud or, at least, to matters involving Wood other than the instant Bank of New England matter. Since the conspiracy count had to do with the Bank of New England fraud, there was no violation of the agreement. After the district court had held an evidentiary hearing on Bruce's motion to suppress, it found that the informal immunity agreement did not extend to the Bank of New England matter. United States v. McLaughlin, 769 F.Supp. 45, 47 (D.N.H.1991). Bruce's motion was denied orally and by an order issued on January 29, 1991.
Bruce's Arguments on Appeal
12
Bruce argues that the district court erred in denying his motion to suppress and in finding that the informal immunity agreement did not include immunity from indictment for his activities relative to the Bank of New England transaction. The standard of review of an appeal from a denial of a motion to suppress is that the decision will be upheld if any reasonable view of the evidence supports the trial court's decision. United States v. Young, 877 F.2d 1099, 1100 (1st Cir.1989); United States v. Gerry, 845 F.2d 34, 36 (1st Cir.1988); United States v. Veillette, 778 F.2d 899, 902 (1st Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). We are satisfied that evidence supports the district court's decision to deny the motion to suppress. We also hold that the court did not err in refusing to dismiss the indictment because of the alleged immunity agreement.
13
It is, of course, clear that Bruce did not receive a grant of immunity pursuant to statute.4 According to his own testimony, he was orally promised by prosecutors during the investigation of Wood that they would do everything in their power not to indict him. In 1990, Cannon allegedly also represented that he was the person who ultimately decided whether or not to indict, indicating, Bruce said, that Cannon possessed the necessary "power" not to indict. Cannon's promise was made just before Bruce testified at the grand jury proceeding relating to the Bank of Marlborough and related matters.
14
The district court, after an evidentiary hearing, concluded that, in context, the immunity agreement made between Bruce and the government did not extend to the Bank of New England fraud charged in the instant case. 769 F.Supp. at 47. Informal promises of immunity have been recognized and enforced in a variety of circumstances short of the defendant's having claimed the Fifth Amendment privilege. United States v. Plummer, 941 F.2d 799, 802 (9th Cir.1991). Since these immunity-in-exchange-for-cooperation agreements are in the nature of contracts, their scope and effects are strongly influenced by contract law principles. United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988). See Rowe v. Griffin, 676 F.2d 524, 527-28 (11th Cir.1982). A defendant's rights are determined by the terms and conditions of the bargain as found by the court. Because the immunity agreement at issue here was never reduced to writing, the district judge's findings as to its content and scope were necessarily based on the rather amorphous testimony of the witnesses at the suppression hearing. The district court recognized that Bruce "argues that the context and subject matter of the earlier discussions led him to believe that immunity would extend to this case." But the court concluded that an immunity agreement reaching this case was never made. Bruce's contrary opinion was termed a mere nonbinding "subjective understanding." The district court found that the informal promises of immunity were limited to the investigation of Wood's activities involving the Bank of Marlborough and related issues. It saw no informal grant of immunity from prosecution for the separate fraud perpetrated by McLaughlin and Bruce on the Bank of New England. This fraud became known to Cannon only in the summer of 1990, at which time he promptly relayed his intention to prosecute to Bruce. Except for two checks and a bank statement, microfilms of which the government claims to have independently subpoenaed, the evidence against Bruce did not include materials he had earlier furnished, but could be found to have derived from the wiretap and the government's other independent investigatory efforts.
15
The findings of the district court after a hearing on a pretrial motion to suppress are binding on appeal unless they are clearly erroneous. United States v. Rosen, 929 F.2d 839, 842 (1st Cir.1991); United States v. Walker, 924 F.2d 1, 3 (1st Cir.1991); United States v. Jobin, 535 F.2d 154, 156 (1st Cir.1976). Findings are clearly erroneous only "when although there is evidence to support [the finding], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Fortin v. Com'r of Mass. Dept. of Public Welfare, 692 F.2d 790, 794 (1st Cir.1982), quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). After examining the transcript of the proceeding on Bruce's motion to suppress, we are left with no such definite and firm conviction of mistake. While the testimony was susceptible to more than one interpretation, the district court's findings are adequately supported.
II. McLaughlin--Background
16
McLaughlin alleges infringement of his right to cross-examination and confrontation, deprivation of a fair trial because of the court's failure to grant his motion for a severance, and insufficiency of the evidence.
17
McLaughlin argues that the district court violated his Sixth Amendment right when it imposed some limitations upon the cross-examination of two government witnesses, Customs Agent Lundt and FBI Agent Rafferty. During the cross-examination of agent Lundt, counsel for McLaughlin asked him about the scheme devised by Wood to defraud the Bank of Marlborough. Counsel for Bruce objected on grounds that the Marlborough affair was irrelevant. After some discussion, the objection was sustained. The second limitation occurred during the cross-examination of FBI Agent Rafferty. Counsel for McLaughlin attempted to elicit testimony from Rafferty about statements made by McLaughlin at a bankruptcy hearing at which Rafferty was present. Both the government and counsel for Bruce objected on grounds that such evidence was hearsay and highly prejudicial to Bruce. The district court sustained the objection. McLaughlin argues that these limitations constituted a violation of his right to cross-examine and to confront opposing witnesses guaranteed by the Sixth Amendment. We disagree.
18
An accused's right to be confronted with the witnesses against him, guaranteed by the Sixth Amendment, has been long read as securing an adequate opportunity to cross-examine adverse witnesses. United States v. Noone, 913 F.2d 20, 31 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1686, 114 L.Ed.2d 81 (1991) (quoting United States v. Owens, 484 U.S. 554, 557, 108 S.Ct. 838, 841, 98 L.Ed.2d 951 (1988). The main purposes served by cross-examination are to impeach credibility and to expose the witness's biases and possible motives for testifying. United States v. Silvestri, 790 F.2d 186, 190 (1st Cir.1986), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). But a defendant's right to cross-examination is not without limits. "Defendants cannot run roughshod, doing precisely as they please simply because cross-examination is underway. So long as a reasonably complete picture of the witness's veracity, bias and motivation is developed, the Judge enjoys power and discretion to set appropriate boundaries." United States v. Boylan, 898 F.2d 230, 254 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990).
19
McLaughlin argues that by prohibiting the line of questioning concerning the Bank of Marlborough fraud, the district court deprived him of the opportunity to fortify his defense theory, namely, that McLaughlin was the innocent victim of a scheme designed by Wood and Bruce, who had used a similar scam to defraud the Bank of Marlborough. However, a party has no right, unless the court in the exercise of its discretion allows, to cross-examine a witness beyond the subject matter of his direct examination and beyond matters affecting credibility. Fed.R.Evid. 611(b). If McLaughlin wished to adduce new evidence from the agents in support of his defense, he could have called the agents as defense witnesses. The limitations placed by the district court upon the cross-examination of the government agents were not unreasonable and did not constitute an abuse of discretion.
20
Next, McLaughlin argues that the district court committed reversible error because it denied his motion for a severance. We review a trial court's denial of a severance motion for abuse of discretion and reverse only if denial deprived defendant of a fair trial, resulting in a miscarriage of justice. United States v. Arruda, 715 F.2d 671, 679 (1st Cir.1983). A motion for severance is addressed to the sound discretion of the trial court and to prevail, a defendant must make a strong showing of prejudice. United States v. Perkins, 926 F.2d 1271, 1280 (1st Cir.1991); United States v. Silvestri, 790 F.2d 186, 188 (1st Cir.1986). McLaughlin failed to demonstrate substantial prejudice. The record indicates that McLaughlin requested severance when he thought he was unable to establish a defense that was antagonistic to codefendant Bruce, namely, that he was the victim of a fraud devised by Bruce and Wood and that they had used that same scheme to defraud other banks in the past. The fact that two defendants assert antagonistic defenses does not, per se, require severance, even if defendants are hostile or attempt to cast blame on each other. United States v. Porter, 764 F.2d 1, 12 (1st Cir.1985), cert. denied, 481 U.S. 1048, 107 S.Ct. 2178, 95 L.Ed.2d 835 (1986); United States v. Davis, 623 F.2d 188, 194 (1st Cir.1980). We cannot say that this aspect of McLaughlin's defense was so material and significant so as to require a severance. Especially is this so where McLaughlin did not request severance until long after the trial began. Requests for severance of charges or defendants under Fed.R.Crim.P. 14 must be raised prior to trial. Fed.R.Crim.P. 12(b)(5). Having failed to move for severance prior to trial, McLaughlin waived the right to pursue the issue. See United States v. Attanasio, 870 F.2d 809, 815 (2d Cir.1989); United States v. Holland, 831 F.2d 717, 721 (7th Cir.1987).
21
Finally, McLaughlin contends that there was insufficient evidence to convict him of the offenses charged. In reviewing the record for a sufficiency of the evidence appeal, it is well established that the evidence must be examined in its entirety, in the light most favorable to the government, to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. The government may prove its case by circumstantial evidence that need not exclude every reasonable hypothesis of innocence. United States v. Boldt, 929 F.2d 35, 39 (1st Cir.1991), quoting United States v. Van Helden, 920 F.2d 99, 101 (1st Cir.1990). The record shows that there was abundant evidence to convict McLaughlin of the offenses charged. The recorded conversations admitted at trial revealed that McLaughlin knowingly provided false information to the Bank of New England to obtain a loan without the required collateral.
22
The judgment of the district court is affirmed.
*
Of the Fifth Circuit, sitting by designation
1
§ 1014 Loan and credit applications generally
Whoever knowingly makes any false statement or report, ... for the purpose of influencing in any way the action of ... any institution the accounts of which are insured by the Federal Deposit Insurance Corporation ... shall be fined no more than $1,000,000 or imprisoned no more than 30 years, or both.
2
§ 1344 Bank fraud
Whoever knowingly executes, or attempts to execute, a scheme or artifice--
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
3
Cannon testified that the checks and bank statement put in evidence in this case were not the originals but were microfilm that had been subpoenaed in June or July, 1990, from the Bank. While Bruce claimed to have turned the originals over to investigators in Boston at an earlier time, these were different agents. Cannon claimed he knew nothing about the earlier transferred documents, and testified that the decision to subpoena the microfilm copies had evolved independently
4
The government is authorized to grant use and derivative use immunity by 18 U.S.C. § 6002. Ordinarily, such immunity is granted under these provisions when a defendant refuses to testify, claiming the Fifth Amendment privilege against self-incrimination. Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972). After formally granting immunity, the government may compel testimony over the defendant's objections. As there was no such formal grant of statutory immunity here, appellant's analysis of the case in those terms is incorrect. The hearing on the motion to suppress was not, as appellant contends, a "Kastigar hearing." The question here is simply the scope of any informal contractual agreement made between the parties and whether the government fairly lived up to its promises | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578208/ | 957 F.2d 47
58 Empl. Prac. Dec. P 41,339, 22 Fed.R.Serv.3d 134
Tommie L. TOLIVER, Plaintiff-Appellant,v.COUNTY OF SULLIVAN; Richard L. Green; Lloyd T. Shimer;Leon Siegal and Brian Ingber, Defendants-Appellees.
No. 579, Docket 91-7785.
United States Court of Appeals,Second Circuit.
Argued Jan. 9, 1992.Decided Feb. 13, 1992.
Tommie L. Toliver, pro se.
Vincent R. Fontana, New York City (Wilson, Elser, Moskowitz, Edelman & Dicker, of counsel), for defendants-appellees.
Before KAUFMAN*, PRATT and MINER, Circuit Judges.
PER CURIAM:
1
Tommie Toliver, appellant pro se, appeals from an order of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, granting the defendants' rule 60(b) motion to reopen the judgment and assessing $11,825 in attorney's fees against Toliver. The district court lacked jurisdiction to grant the motion, because Toliver already had filed his notice of appeal to this court. We therefore reverse.
BACKGROUND
2
Toliver brought his action under 42 U.S.C. §§ 1981 and 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, against defendants Sullivan County, Brian Ingber, Richard L. Green, Lloyd T. Shimer, and Leon Siegal. Toliver alleged that the defendants had discriminated against him on the basis of race when Sullivan County declined to hire him as either a veterans service officer or as an assistant director for veterans services. Judge Griesa conducted a bench trial on the Title VII claims; the §§ 1981 and 1983 claims were tried to a jury.
3
At trial, after both sides had rested, Judge Griesa dismissed all claims against defendants Ingber and Siegal. He also found in favor of all defendants on the Title VII claims.
4
The jury found for two of the remaining defendants, Sullivan County and Richard Green, on the §§ 1981 and 1983 claims; however, they could not reach a verdict with regard to Lloyd Shimer. Subsequently, Judge Griesa granted defendants' motion for a directed verdict on the §§ 1981 and 1983 claims against Shimer. In a final judgment dated March 1, 1991, and docketed March 4, 1991, Judge Griesa dismissed appellant's action and, significantly for this appeal, ordered each party to bear its own "costs". Under 42 U.S.C. §§ 1988 and 2000e-5(k), this meant that attorney's fees were not allowed to either party. Toliver filed his notice of appeal on March 29, 1991.
5
Over one month later, on May 9, 1991, while Toliver's appeal was pending in this court, defendants moved under Fed.R.Civ.P. 60(b) to reopen the judgment to obtain an award of attorney's fees. Judge Griesa granted the motion in an order filed July 5, 1991.
6
Toliver then filed this second appeal to challenge separately Judge Griesa's award of attorney's fees. Before argument of this second appeal, another panel of this court that heard Toliver's appeal from the original judgment affirmed Judge Griesa's dismissal of the action in an unpublished summary order, see Toliver v. County of Sullivan, 948 F.2d 1278 (2d Cir.1991).
DISCUSSION
7
Toliver contends on appeal that the defendants lack "standing to make a motion some sixty-five days after the [district court] issued and filed its final order." Defendants' brief ignored this jurisdictional argument and instead concentrated on the merits of the attorney's fee award. However, Toliver is correct: the district court lacked jurisdiction to grant the rule 60(b) motion.
8
While the federal rules do permit the district court to "relieve a party or a party's legal representative from a final judgment", see Fed.R.Civ.P. 60(b), this circuit has repeatedly held that the docketing of a notice of appeal "ousts the district court of jurisdiction except insofar as it is reserved to it explicitly by statute or rule." Ryan v. United States Line Co., 303 F.2d 430, 434 (2d Cir.1962).
9
Consequently, the district court may grant a rule 60(b) motion after an appeal is taken only if the moving party obtains permission from the circuit court. In Ryan we noted that the district court can entertain and deny the rule 60(b) motion; however, "if [the district court] decides in favor of it, then and then only is the necessary remand by the court of appeals to be sought." Id. at 434. See also Fidenas AG v. Compagnie Internationale Pour L'Informatique CII Honeywell Bull S.A., 606 F.2d 5, 6 n. 1 (2d Cir.1979) (citing Ryan ). In other words, before the district court may grant a rule 60(b) motion, this court must first give its consent so it can remand the case, thereby returning jurisdiction over the case to the district court.
10
In this case, however, our permission was not obtained. The district court's March 4 judgment disposed of the entire action, including attorney's fees, and Toliver's filing of a notice of appeal removed the entire matter, including attorney's fees, from the jurisdiction of the district court. Thus, absent this court's permission, Judge Griesa lacked jurisdiction to grant the defendants' rule 60(b) motion, and we reverse on that ground.
11
We note that this is not a case where the district judge reserved decision on attorney's fees, but entered final judgment on the merits. As the Supreme Court has held, "an unresolved issue of attorney's fees for the litigation in question does not prevent judgment on the merits from being final." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988). Thus, attorney's fees need not be part of the merits appeal for purposes of the final judgment rule. Here, however, the district court in ordering final judgment included both liability and "costs", of which attorney's fees are a part. Toliver's appeal from that first judgment divested the district court of jurisdiction to grant the subsequent rule 60(b) motion.
12
If we were to address the merits of the attorney's fees award itself, we would have reservations about the amount of attorney's fees assessed in the absence of some affirmative indication by the district court that it had considered plaintiff's financial standing when it granted the defendant's motion. As we have previously noted, "fee awards are at bottom an equitable matter, [and] courts should not hesitate to take the relative wealth of the parties into account." Faraci v. Hickey-Freeman, 607 F.2d 1025, 1028 (2d Cir.1979) (citations omitted); see also Johnson v. New York City Transit Auth., 823 F.2d 31, 33 (2d Cir.1987) ("ability to pay is appropriately to be considered" in award of attorney's fees). This is particularly so when it is the defendant who seeks a fee award.
13
Consequently, a significantly reduced award of attorney's fees might be appropriate, if the defendants decide to present to the district court a new application for attorney's fees, and if the district court determines that the defendants' new motion satisfies the requirements of rule 60(b).
14
Reversed.
*
Pursuant to § 0.14(b) of the rules of this court, this appeal is being determined by Judges Pratt and Miner, who are in agreement as to the opinion of the court. Judge Kaufman, who was a member of this panel and who had prepared to decide the case, unfortunately died on February 1, 1992, before he had an opportunity to vote on this disposition. Because both of the remaining panel members agree and do not request the designation of a third panel member, they constitute a quorum pursuant to local rule § 0.14(b) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578213/ | 957 F.2d 72
UNITED STATES of America, Appellee,v.Anthony COLLINS, Defendant-Appellant.
No. 692, Docket 91-1471.
United States Court of Appeals,Second Circuit.
Argued Jan. 8, 1992.Decided Feb. 25, 1992.
Marjorie M. Smith, New York City (The Legal Aid Soc., of counsel), for defendant-appellant.
Miguel A. Estrada, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., James B. Comey, Asst. U.S. Atty., S.D.N.Y., of counsel), for appellee.
Before MINER, ALTIMARI and MAHONEY, Circuit Judges.
ALTIMARI, Circuit Judge:
1
Defendant-appellant Anthony Collins appeals from a judgment of conviction, entered in the United States District Court for the Southern District of New York, following a jury trial before Judge Robert P. Patterson, Jr. Collins was convicted of dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1), and of receiving and possessing a sawed-off rifle, in violation of 26 U.S.C. § 5861(d). On appeal, Collins contends, among other things, that the district court committed plain error by failing to charge the jury that it could only convict Collins of unlawful dealing in firearms if it found that he acted willfully. While the government concedes that the district court erred by omitting a willfulness requirement from its charge on the § 922(a)(1) count, it argues that this error was harmless.
2
For the reasons set forth below, we affirm the judgment of conviction.
BACKGROUND
3
On January 28, 1991, Anthony Collins was charged by indictment with three separate offenses involving firearms: Count One charged him with conspiracy to violate the federal firearms laws by possessing firearms and dealing in firearms without a license, in violation of 18 U.S.C. § 371; Count Two charged him with dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1); and Count Three charged him with receiving and possessing a sawed-off rifle, in violation of 26 U.S.C. § 5861(d). A jury trial was held in the United States District Court for the Southern District of New York in February 1991.
4
At trial, the government introduced the testimony of two undercover agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") and of a confidential government informant, James Barnes, as well as tape-recordings of some of the conversations that these agents had with the defendant. According to this testimony, from February 1990 through August 1990, Collins repeatedly met with undercover ATF agents outside his apartment building, and in his neighborhood, to complete or to arrange various gun sales. During one such meeting, Collins sold a Colt .45 revolver to two ATF agents, Agent Donini and Agent Mulham, for $900. As Collins showed the agents the revolver, he explained that he had obliterated its serial number, as was his general practice. Collins stated: "[T]hat's what I always do, take 'em off."
5
At another meeting, Collins sold Agent Mulham a .38 caliber Smith & Wesson revolver for $1,100. While Agent Mulham was inspecting the weapon, Collins noted that the gun was "oily" because he had cleaned it to ensure that his fingerprints had been removed. Shortly after the sale of the Smith & Wesson, Collins again met with Agent Mulham and sold him a sawed-off U.S. Carbine .30 caliber rifle and a .9 millimeter Kurz semiautomatic pistol for $1,900. As part of the transaction, Collins agreed to sell Mulham five .9 millimeter pistols at a later date for $650.00 apiece.
6
The government presented additional evidence that a number of other weapons sales were made by Collins' brother-in-law, Jerome Blash, in or around Collins' basement apartment. The agents also testified that Collins had informed them that he was the rightful owner of the weapons that Blash had sold to them.
7
In response, Collins took the stand and charged that the government had entrapped him. He claimed that the government's informant, Barnes, was the actual source of the firearms that Collins had sold to the agents. Additionally, Collins contended that Barnes had repeatedly asked him to sell the weapons and, when Collins finally agreed, coached him on what to say to buyers.
8
The jury ultimately found Collins guilty on Counts Two and Three. As a result of a jury deadlock on Count One, the judge declared a mistrial on that charge. The district court calculated Collins' offense level for the two counts on which he was found guilty to be 18 and concluded that Collins' criminal history category was I, making the applicable sentencing range 27 to 33 months. The district court sentenced Collins to 27 months imprisonment, two years of supervised release and imposed $100 in mandatory special assessments.
9
This appeal followed.
DISCUSSION
I. Propriety of the Charge
10
On appeal, Collins contends--and the government concedes--that the district court erred by failing to charge the jury that it was required to find that Collins acted willfully before it could find him guilty of dealing in firearms without a license under 18 U.S.C. § 922(a)(1). Although Collins did not object to the charge as given, he now claims that the absence of a "willfulness" instruction in the court's charge on unlawful dealing constituted plain error. We disagree.
11
On Count Two of the indictment, Collins was convicted of violating 18 U.S.C. § 922(a)(1), which prohibits "any person ... except a ... licensed [firearms] dealer, [from engaging] in the business of ... dealing in firearms." As written, this subsection contains no scienter requirement. Therefore, the district court, following the government's requested instruction, charged the jury that "the government is not required to prove that Mr. Collins knew that a license was required, nor is the government required to prove that the defendant had knowledge that he was breaking the law."
12
The government now concedes, however, that an amendment to the penalty provision accompanying this section has added a willfulness requirement to the underlying offense. The Firearms Owners' Protection Act, enacted in 1986, amended 18 U.S.C. § 924(a)(1)(D), the penalty provision applicable to the crime of unlawful dealing in firearms, to provide:
13
Whoever ... willfully violates any other provision of this chapter, shall be fined not more than $5,000, imprisoned not more than five years, or both, and shall become eligible for parole as the Parole Commission shall determine.
14
(emphasis added). Prior to the enactment of the 1986 Act, many firearms crimes were essentially strict liability offenses. Because Congress recognized that the lack of a mens rea requirement accompanying these offenses could result "in severe penalties for unintentional missteps," see 132 Cong. Rec. S5350 (daily ed. May 6, 1986), it added the willfulness requirement to § 924(a)(1)(D). Thus, it is apparent that by amending § 924(a)(1)(D), Congress was in fact adding the element of willfulness to the accompanying offenses, such as § 922(a)(1). See, e.g., H.R.Rep. No. 495, 99th Cong., 2d Sess. 26 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 1327, 1352 ("House Report"); see also 132 Cong. Rec. S5350 (daily ed. May 6, 1986) (amendment requires proof of "willful" violation for certain prosecutions). Accordingly, the district court erred by failing to charge the jury that willfulness was an element of the crime. We must therefore consider whether this error requires reversal of Collins' conviction on Count Two.
15
It is a "bedrock, 'axiomatic and elementary' [constitutional] principle," that a defendant's conviction may not stand if it is based on an evidentiary presumption that essentially "reliev[es] the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985); see In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Collins claims that the district court established such an evidentiary presumption by failing to instruct on willfulness. In opposition, the government contends that the district court's omission was merely harmless error.
16
It is well-established that "if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). An error committed at trial will be considered harmless if it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Recently, the Supreme Court, in Yates v. Evatt, --- U.S. ----, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991), elaborated on the harmless error rule as applied to jury instructions. Yates instructs that a court reviewing a claim of harmless error in a jury charge must examine (1) the evidence the jury considered in rendering its decision and (2) the probative force of the evidence against the probative force of the presumption standing by itself. See id. 111 S.Ct. at 1893. Basically, an appellate court "must approach [a harmless error inquiry in this context] by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption." Id. at 1894.
17
Here, the district court, through its failure to charge, presumed that willfulness existed. Accordingly, applying the two step inquiry set forth in Yates, we must conclude whether, based on the evidence, the jury's verdict would have been the same if the judge properly instructed that willfulness was an element of the offense of unlawful dealing in firearms.
18
We begin our analysis by examining the meaning of the willfulness requirement contained in the statute. Collins contends that the addition of the element of willfulness to § 924(a)(1)(D) requires the government to prove more than just the defendant's general knowledge that he or she is violating the law. According to Collins, for a defendant to act willfully under § 924(a)(1)(D), he or she must have specific knowledge of the statute that he or she is violating as well as a specific intent to violate the provision at issue. More precisely, Collins argues that in order to obtain a conviction on the § 922(a)(1) offense, the government was required to prove beyond a reasonable doubt that he was aware of the license requirement and intentionally disregarded it. To support his claim, Collins refers to the House Report accompanying the 1986 Firearms Owners' Protection Act, which criticizes the willfulness requirement contained in the Senate's bill, S. 49. The House Report states:
19
It appears that the intent of the authors of the "willfulness" requirement of S. 49/H.R. 945 is that the prosecution have to prove that the defendant knew the details of the law, understood that his conduct would violate the law, and intentionally set out to violate the law. This would constitute an almost impossible, and almost unprecedented burden on the prosecution.... The Committee believes that ... a person who engages in the business of selling hand grenades or machine guns should not escape prosecution solely on the grounds that the government cannot produce witnesses to whom the defendant admitted knowledge that such conduct requires a federal license, and a determination to violate that law.
20
House Report at 11, reprinted in 1986 U.S.Code Cong. & Admin.News at 1337. In essence, the House Judiciary Committee rejected the adoption of a willfulness requirement, or at least a willfulness requirement that was narrowly drawn. Ultimately, however, the bill Congress passed contained a willfulness requirement. Thus, Collins contends that notwithstanding the House Judiciary Committee's criticisms of the Senate bill's willfulness provision, the Act as passed contained a very narrow and precise willfulness requirement. We cannot agree with this assessment.
21
First, we note that remarks made during the debates on the Senate floor indicate that the willfulness provision contained in S. 49 was added to avoid penalizing individuals who inadvertently violated the firearms provisions of the Gun Control Act of 1968. For example, Senator Hatch, a sponsor of the Act, stated, "We need to redirect law enforcement ... towards willful firearm law violations that will lead to violent crime; for example selling stolen guns or selling firearms to prohibited persons." 131 Cong. Rec. 18178; see also 131 Cong. Rec. 18165-166 (1985) (remarks of Sen. Abdnor). Moreover, another primary sponsor of the bill noted, "The aim of the Firearms Owners Protection Act is to redirect law enforcement toward the kind of transaction most likely to be a factor in violent firearms crime. In other words, we have to stop going after the guy who transposes a number in a zip code, and go after the dealer who is knowingly selling stolen guns, or knowingly selling to prohibited persons." 132 Cong. Rec. S5358 (daily ed. May 6, 1986) (remarks of Sen. McClure). Since there was no Senate Report to accompany the bill, we look more closely at statements such as these that were made on the Senate floor. These types of statements indicate that the willfulness requirement was aimed at ensuring that blameless individuals would not remain strictly liable for innocent violations of various firearms provisions.
22
Second, it is clear that based on the House Report, the House Judiciary Committee believed that if a willfulness provision were included in the Act, it should be read broadly. See House Report at 11, 26, reprinted in 1986 U.S.Code Cong. & Admin.News at 1337, 1352. Indeed, a compromise on the willfulness provision can be inferred, since the House Report initially rejected its inclusion in the Act altogether. Third, when ATF, one of the primary bureaus responsible for enforcing the Act, submitted comments on S. 49 to the House Judiciary Committee, it noted that a strict reading of the willfulness provision "would make it extremely difficult to successfully prosecute many cases, e.g., a non-licensee's illegal interstate firearms purchases." House Report at 19, reprinted in 1986 U.S.Code Cong. & Admin.News at 1345. The importance of the ATF's views is evidenced by the Judiciary Committee's decision to append the ATF's statement to the Committee Report. Based on these expressed concerns and on the floor debate in the Senate, we believe that the element of willfulness now contained in § 922(a)(1) was meant to be read broadly to require only that the government prove that the defendant's conduct was knowing and purposeful and that the defendant intended to commit an act which the law forbids.
23
Thus, we now consider whether a proper charge on willfulness would have altered the jury's verdict. At trial, Collins presented an entrapment defense, and in so doing, conceded the elements of the charged crimes. Collins' basic defense was that the government's informant, Barnes, had goaded him into participating in the gun transactions. For an entrapment defense to be successful, a jury must conclude not only that the government presented the defendant with the opportunity to commit the charged crime, but also that the defendant was not predisposed to commit the offense. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); see also Hampton v. United States, 425 U.S. 484, 488-89, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976). In this case, the jury rejected Collins' entrapment defense by finding him guilty on Counts Two and Three. Thus, the jury essentially concluded that Collins was ready and willing to commit the charged crimes when approached by the government's informant. We believe that the jury's rejection of the defense, by itself, indicates that even if the willfulness instruction had been given, Collins would have been convicted on Count Two. Apart from this, however, evidence that Collins repeatedly obliterated serial numbers from the guns he sold and wiped fingerprints off guns when he sold them, demonstrates that Collins understood that his firearms sales violated the law. In sum, we conclude that the government established Collins' willfulness beyond a reasonable doubt, rendering the district court's failure to include willfulness in the charge merely harmless error.
II. Sufficiency of the Evidence
24
Collins next contends that there existed insufficient evidence to sustain his convictions for illegal receipt and possession of a sawed-off rifle and dealing in firearms without a license. Essentially, Collins argues that the government failed to disprove his entrapment defense and, as a result, the case against him was legally insufficient. We disagree.
25
A defendant challenging the sufficiency of the evidence supporting his or her conviction bears a heavy burden. See United States v. Medina, 944 F.2d 60, 66 (2d Cir.1991). The defendant must show that even if all possible inferences are drawn in favor of the government, no reasonable jury "could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see Medina, 944 F.2d at 66; United States v. Rodriguez, 943 F.2d 215, 219 (2d Cir.1991). Upon viewing the evidence in the light most favorable to the government, it is clear that Collins' claim of entrapment must fail.
26
As noted above, "a valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Mathews, 485 U.S. at 63, 108 S.Ct. at 886; see Hampton, 425 U.S. at 488-89, 96 S.Ct. at 1649; United States v. Chin, 934 F.2d 393, 398 (2d Cir.1991). Collins asserts that the government failed to produce any evidence that he would have engaged in weapons sales if Barnes, the government's informant, had not prodded him to do so. However, this contention was clearly negated by the government's proof at trial. During the trial, the government played tape-recordings of conversations between Collins and ATF agents, in which Collins discussed a number of other firearms sales--such as sales to various drug dealers--conducted independently of his association with Barnes. Moreover, as previously discussed, Collins explained to the ATF agents that he was the rightful owner of certain weapons that his brother-in-law had sold to them. This contradicts Collins' claim at trial that he obtained weapons solely through Barnes. Additionally, Collins' professed skill at sawing-off shot-guns, as well as his standard practice of obliterating serial numbers on weapons and wiping his fingerprints from guns prior to sale, indicates that he had extensive experience in conducting illegal weapons sales. It is clear, therefore, that a reasonable jury could easily have dismissed Collins' entrapment defense.
III. Sentencing Guidelines § 2K2.2
27
Finally, Collins challenges the district court's application of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), contending that the court erred by calculating the base offense level for his 26 U.S.C. § 5861(d) possession conviction using U.S.S.G. § 2K2.2--the provision applicable to unlawful trafficking offenses--rather than using U.S.S.G. § 2K2.1--the provision applicable to unlawful possession offenses. Based on these alleged errors, Collins argues that his base level should have been calculated at 16 (yielding a guideline range of 21-27 months imprisonment) rather than 18 (yielding a guideline range of 27-33 months imprisonment).
28
Collins' convictions resulted from offenses occurring in the summer of 1990. Because use of the November 1990 Guidelines, which were in effect at the time of sentencing, would have resulted in an increase in Collins' base offense level, the district court sentenced Collins on the basis of the post-November 1989 Guidelines, which were in effect at the time the crimes were committed. See generally United States v. Keller, 947 F.2d 739, 740 (5th Cir.1991); United States v. Stephenson, 921 F.2d 438, 440-41 (2d Cir.1990).
29
Under § 2K2.1 as it then read, a court sentencing an offender on an unlawful receipt, possession or transportation of a firearm count, was directed to apply § 2K2.2 if "the offense involved the distribution of a firearm or possession with intent to distribute ... [and] if the resulting offense level [upon application of that provision] is greater than that determined above." U.S.S.G. § 2K2.1(c)(1). Although the § 5861(d) offense for which Collins was convicted charged him only with "possess[ion of] a sawed-off rifle," it is clear that because Collins eventually sold this rifle to undercover agents, the district court properly surmised that Collins had possessed the weapon with intent to distribute. See, e.g., United States v. Dennis, 926 F.2d 768, 769 (8th Cir.1991) (per curiam). Additionally, it is apparent that Collins' base offense level calculated under § 2K2.2 was greater than it would have been if calculated under § 2K2.1. If the district court had applied § 2K2.1, Collins' offense level would have been 16. In calculating Collins' offense level under § 2K2.2, however, the district court was permitted to add levels to Collins' base level of 16 if his distribution of other weapons furthered his 26 U.S.C. § 5861 violation. After conducting a hearing, the district court concluded that Collins' base offense level should be increased by two, because of Collins' involvement with the sale of five other weapons. As a result, the offense level calculated under § 2K2.2 was greater than it would have been if § 2K2.1 had been applied. Thus, based on the language and the intent of the applicable Guidelines provisions, we believe that the district court properly employed § 2K2.2 to determine Collins' sentence.
CONCLUSION
30
We have examined each of Collins' remaining arguments and find them to be without merit. Thus, based on the foregoing, we affirm the judgment of conviction entered against Collins. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578214/ | 957 F.2d 78
15 Employee Benefits Cas. 1132
Leonard L. FINZ, Plaintiff-Appellant,v.Stuart A. SCHLESINGER, Julien, Schlesinger and Finz, P.C.,Julien and Schlesinger, P.C., Julien and Schlesinger, StuartA. Schlesinger d/b/a Julien and Schlesinger P.C., the Julienand Schlesinger Employee Retirement Fund, the Julien andSchlesinger P.C. Employees Retirement Trust, and Plan Doe,Defendants-Appellees.
No. 585, Docket 91-7692.
United States Court of Appeals,Second Circuit.
Argued Dec. 3, 1991.Decided Feb. 25, 1992.
Norman E. Frowley, New York City (Law Offices of Leonard L. Finz, P.C., of counsel), for plaintiff-appellant.
Gary P. Naftalis, New York City (Jonathan M. Wagner, Kramer, Levin, Nessen, Kamin & Frankel, of counsel), for defendants-appellees.
Before TIMBERS, MINER and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:
1
Plaintiff-appellant Leonard L. Finz appeals from a judgment entered in the United States District Court for the Southern District of New York (Kenneth Conboy, Judge), granting defendants-appellees', Julien, Schlesinger and Finz, P.C., Julien and Schlesinger, P.C., Julien and Schlesinger, Stuart A. Schlesinger d/b/a Julien and Schlesinger P.C., The Julien and Schlesinger P.C. Employees Retirement Trust, The Julien and Schlesinger Employee Retirement Fund, and Plan Doe (collectively "defendants"), motion for summary judgment and dismissing the complaint against them. Finz initiated the underlying action against defendants, claiming, among other things, that they unlawfully deprived him of pension benefits in violation of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. (1988) ("ERISA"). Specifically, Finz contended that defendants wrongfully led him to believe that he was not covered by Julien & Schlesinger's retirement plans and thus fraudulently induced him to sign a waiver releasing them from liability for payments under these plans.
2
The district court rejected Finz' argument, concluding that it was clear from Finz' waiver that he understood he might have been covered by the pension plan, but had nevertheless waived his claims. Thus, the district court found that he could not maintain his action for damages under ERISA. The court also dismissed his common law claims of fraud and conspiracy on this basis.
3
For the reasons set forth below, we affirm the judgment of the district court.
BACKGROUND
4
In January 1978, Leonard L. Finz, who was then an acting New York State Supreme Court Justice in Queens County, left the bench and joined the law firm of Julien & Schlesinger, P.C., as a trial attorney. Thereafter, the firm's name was changed to Julien, Schlesinger & Finz, P.C. According to Finz, he was induced to enter private practice, in part, because he wanted a guaranteed pension. For approximately seven years Finz worked for the firm as a trial attorney.
5
On April 10, 1984, Finz left the firm and formed a partnership with Michael Wolin, the former managing partner of Julien & Schlesinger. Finz alleges that he left the firm over a conflict with defendants concerning his eligibility for pension benefits.
6
Subsequently, on May 4, 1984, Finz entered into an agreement with defendants designed to resolve his differences with them amicably and to avoid litigation over any potential claims. The agreement addressed Finz' claims regarding pension benefits, as well as his rights as to various clients and his allegation that he was entitled to a stock and equity interest in the firm. With regard to Finz' pension claims, the agreement specifically stated:
7
[Finz] states that to his knowledge and during or prior to the period of his employment with J & S or J S & F, he was neither issued, nor did he receive any stock interest in the "JULIEN & SCHLESINGER EMPLOYEE RETIREMENT FUND DATED JUNE 11,11, 1974" or any other pension or profit sharing plan which may have existed or any parties claim to have existed with regard to the firms of J S & F and J & S, which [Finz] claims was in existence during the period of his employment with J S & F and as such is or was entitled to the benefits thereunder provided as a covered employee....
8
As a consequence of the dispute which exists based upon the claims made by [Finz] and the denials of those claims by [Julien, Schlesinger,] J S & F and J & S as set forth in this paragraph, the aforenamed [Julien, Schlesinger,] J S & F and [Finz] hereby resolve, settle and compromise their differences as evidenced by the general releases executed by [Finz] and the remaining parties to this Agreement as consideration therefore, annexed hereto as Appendix "A."
9
Agreement p 8. Finz was paid $75,000 upon execution of the entire agreement and the general releases annexed to it. Agreement p 11. In the same agreement, Michael Wolin, Finz' partner, agreed that he did not have any stock ownership interest in the firm or in the firm's pension plan.
10
Approximately five years later, in July 1989, Finz discovered a photocopy of a check made out to Michael Wolin dated November 4, 1983 and drawn on the account of "Julien & Schlesinger, P.C. Employees Retirement Fund." Because Finz assumed that he had been in the same position as Wolin with regard to the firm's pension plan, Finz once again began to assert that he had been fraudulently deprived of his retirement benefits.
11
Accordingly, Finz initiated the underlying action against the defendants, claiming that they had deprived him of pension benefits in violation of ERISA. Additionally, Finz alleged common law fraud and conspiracy. In response, the defendants moved to dismiss the complaint, arguing that the action was barred by the release agreement and by the applicable statute of limitations. The district court found that the releases did not foreclose Finz from bringing the action, since Finz claimed that he was fraudulently induced to enter the agreement and sign the releases. Additionally, the district court denied the defendants' motion to dismiss on statute of limitations grounds, concluding that it could not rule on this claim until discovery was conducted. Thus, the district court entered an order denying defendants' motion.
12
Subsequently, the defendants moved for reconsideration of the court's order and the district court granted the motion. On reconsideration, the district court found that when he executed the release, Finz was of the belief that he was covered under the firm's plan. Nevertheless, he executed the release in return for substantial consideration. Thus, the district court found that because Finz did not enter into the agreement as a result of defendants' representations, he could not now argue that his waiver was negated by his discovery that he probably had been entitled to plan benefits. The court also found that Finz' common law fraud and conspiracy claims were meritless. Consequently, the court granted the defendants' motion for summary judgment and dismissed the complaint.
13
This appeal followed.
DISCUSSION
14
In reviewing a district court's grant of summary judgment, we consider whether the court below properly concluded that there existed "no genuine issue as to any material fact" and that the prevailing party was "entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). We review the district court's decision de novo. See P.C. v. McLaughlin, 913 F.2d 1033, 1040 (2d Cir.1990).
15
Here, the district court determined that based on the language of the agreement, as well as the circumstances surrounding its execution, Finz had knowingly relinquished all potential ERISA claims. Essentially, the district court reasoned that the language of the agreement, stating that Finz waived all interest in employee pension funds that he "claim[ed] w[ere] in existence during the period of his employment with [defendants]," clearly indicated that at the time he signed the agreement Finz believed that he was entitled to a pension despite defendants' representations to the contrary. Thus, the district court concluded that Finz' subsequent discovery of information confirming his belief that he had been covered by the pension plan did not vitiate his waiver. We agree.
16
Initially, we note that defendants invite us to analyze the validity of Finz' waiver of pension benefits using a traditional contract analysis. Defendants claim that because Finz' waiver of pension plan benefits was a part of a general settlement and release agreement signed after the parties had already ended their relationship, we should apply general contract principles to determine the waiver's effectiveness. We, like the district court, decline defendants' invitation.
17
The validity of an individual's waiver of pension benefits is subject to closer scrutiny than his or her waiver of general contract claims. See Laniok v. Advisory Comm. of Brainerd Mfg. Co. Pension Plan, 935 F.2d 1360, 1365 (2d Cir.1991). Because individuals waiving pension benefits claims "are relinquishing [rights] that ERISA indicates a strong congressional purpose of preserving," id. at 1367, we have required close inspection of the totality of circumstances surrounding a waiver of ERISA benefits. See id; see also Leavitt v. Northwestern Bell Telephone Co., 921 F.2d 160, 162 (8th Cir.1990). Thus, we cannot conclude that merely because a pension benefit waiver is embedded within a larger agreement concluded after employment has ceased, we should review its validity under a standard that is any less strict.
18
We recently held in Laniok that an individual can waive his or her right to participate in a pension plan governed by ERISA only if his or her waiver "is made knowingly and voluntarily." Laniok, 935 F.2d at 1365. In that case, we reviewed a district court's determination that no disputed issue of fact existed as to whether a tool and die worker, who had signed a waiver of pension benefits prior to joining a company, had effectively waived any right he had to a pension. We noted six factors that may be examined to determine whether a plaintiff who waives benefits covered under ERISA acted knowingly and voluntarily:
19
1) the plaintiff's education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney, [as well as whether an employer encouraged the employee to consult an attorney and whether the employee had a fair opportunity to do so] and 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.
20
Id. at 1368 (quoting Bormann v. AT & T Communications, Inc., 875 F.2d 399, 403 (2d Cir.), cert. denied, 493 U.S. 924, 110 S.Ct. 292, 107 L.Ed.2d 272 (1989)). We recognized, however, that this list of factors was not exhaustive and that "the circumstances to which these factors apply will differ if the waiver at issue is agreed to by a prospective employee rather than a current employee." Id.
21
In this case, the district court, which issued its judgment prior to our decision in Laniok, considered essentially these factors and concluded that Finz' waiver was knowing and voluntary. The district court found that Finz, a former New York State Supreme Court Justice, was well-educated, understood the terms of the agreement, had ample opportunity to consider the agreement and was given substantial consideration--i.e., some fraction of $75,000--to execute the waivers at issue. Moreover, the district court noted that the releases were negotiated at arms length and that there was no indication that Finz was denied the opportunity to consult with an attorney about his rights under ERISA. With regard to the completeness and accuracy of defendants' disclosure, the court concluded that Finz was fully aware of his claim against the plan. In sum, the district court found that Finz' waiver was valid.
22
Finz challenges this conclusion, however, contending that his waiver could not have been "knowingly" made, because defendants failed to inform him of the terms of the plan. In essence, Finz claims that the defendants' alleged failure to provide him with plan documents violated ERISA and voided his waiver. We disagree.
23
It is well-established that the trustees of a pension plan have an obligation to provide plan participants with summary plan descriptions upon request. See 29 U.S.C. § 1132(c); see also 29 U.S.C. § 1104. The question arises, however, whether this obligation extends to a "potential plan participant," i.e., an individual, such as Finz, whose coverage is in doubt. Although ERISA does not speak to this issue directly, we believe that plan trustees have a general obligation to provide potential plan participants who request plan descriptions with adequate information about the plan. Cf. Gaynor v. Ephrata Community Hosp., 690 F.Supp. 373, 379 (E.D.Pa.1988). Because "[t]he primary purpose of [ERISA] is the protection of individual pension rights," H.R.Rep. No. 533, 93rd Cong., 2d Sess. 1 (1974), reprinted in 1974 U.S.C.C.A.N. 4639, it is only logical that a pension plan's trustees owe at least some duty to a potential plan participant to facilitate the determination of whether he or she has rights under the plan.
24
Based on the allegations of the complaint, we can surmise that defendants, by repeatedly ignoring Finz' requests for plan documents, shirked their responsibility. Nevertheless, the district court concluded that "to the extent Finz was not adequately informed of the details of the ERISA plan, he waived his right to be so informed when [he] enter[ed] into the settlement agreement." We agree with the district court's determination that in this case, defendants' failure to provide Finz with a summary plan description does not nullify his waiver.
25
Reviewing the circumstances here presented, we conclude that there is no question that Finz knew that he may have been covered under the plan when he relinquished his benefits. Basically, as a result of an impasse between the parties over Finz' potential plan participation, an agreement was reached such that litigation could be avoided. As is evidenced by the language of the agreement itself, Finz understood that his waiver would settle the parties' dispute over his coverage under the plan. The agreement states:
26
As a consequence of the dispute which exists based upon the claims made by [Finz] and the denials of those claims by [Julien, Schlesinger,] J S & F and J & S as set forth in this paragraph, the aforenamed [Julien, Schlesinger,] J S & F and [Finz] hereby resolve, settle and compromise their differences as evidenced by the general releases executed by [Finz] and the remaining parties to this Agreement as consideration therefore, annexed hereto as Appendix "A."
27
Agreement p 8 (emphasis added). Indeed, at a related proceeding in 1990, Finz testified that he left the firm as a result of a dispute over his pension benefits, suggesting that he never accepted defendants' representations and in fact believed that he was covered by the plan. Thus, Finz cannot now claim that the revelation of the check to Wolin--which to his mind confirmed his belief as to his eligibility for plan participation--completely negates his waiver.
28
As we held in Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 527 (2d Cir.1985), a plaintiff who has settled a claim involving fraud may not subsequently assert that he or she is not bound by the settlement because the extent of the fraud was not fully disclosed. Although Bellefonte did not involve an ERISA based claim, we nevertheless believe that it is fully applicable to this situation. Finz, who at all times believed that defendants were misrepresenting his entitlement to benefits, should not be permitted to strike a better bargain at this late date by claiming that he signed the agreement in reliance on defendants' misrepresentations. Cf. Bormann, 875 F.2d at 404.
29
We do not intend to suggest that a plan trustee's failure to turn over requested plan documents to a potential participant could never, in and of itself, nullify a waiver executed by a potential plan participant. Where, for example, application of the Laniok factors indicate that there is a great disparity in the education or the bargaining power of the parties, the plan trustee's failure to provide a potential participant with requested information could be dispositive. Indeed, we believe that once a potential plan participant demands a summary plan description from a plan trustee, a heavy burden should be placed on the trustee to show whether the information was provided and, if it was not, to give a detailed explanation why it was not furnished. Here, however, defendants' failure to provide Finz with details of the pension plan is not dispositive, since it is clear that Finz, an astute lawyer, knew exactly the bargain he was making. We therefore agree with the district court's determination that Finz' waiver of any claim to benefits under the pension plan is valid, thus depriving him of any ERISA-based cause of action.
30
Finally, Finz contends that the district court erred by addressing the merits of his pendent state law claims, even though it dismissed his federal cause of action. We disagree. A district court's decision to retain jurisdiction over a pendent state claim, once it has determined that the underlying federal claim should be dismissed, is reviewed under an abuse of discretion standard. See Carnegie Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988); Mayer v. Oil Field Sys. Corp., 803 F.2d 749, 757 (2d Cir.1986); see also McLearn v. Cowen & Co., 660 F.2d 845, 850 (2d Cir.1981) (Lasker, J., concurring). We review such decisions by considering whether judicial economy, convenience, fairness and comity require a different result. See Carnegie Mellon, 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7.
31
Here, the district court's decision on the ERISA cause of action involved findings which related to Finz' common law claims. It would have thus been inefficient for the district court not to have addressed the merits of the state law issues. Accordingly, we do not believe that the district court abused its discretion in this regard.
CONCLUSION
32
We have examined all of Finz' remaining arguments and find them to be without merit. Thus, based on the foregoing, we affirm the judgment of the district court. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/552247/ | 919 F.2d 1440
67 A.F.T.R.2d 91-1049, 90-2 USTC P 50,581
Eugene M. LONSDALE, Patsy R. Lonsdale, his wife in PropriaPersona Sui Juris, Plaintiffs-Appellants,v.UNITED STATES of America and Does 1 through 100, Defendants-Appellees.
No. 90-2113.
United States Court of Appeals,Tenth Circuit.
Submitted on the Briefs.*Decided Nov. 20, 1990.
Eugene M. Lonsdale and Patsy R. Lonsdale, pro se.
Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Kenneth L. Greene and Joan I. Oppenheimer, Attys., Tax Div., Dept. of Justice, Washington, D.C., William L. Lutz, U.S. Atty., of Counsel, for defendants-appellees.
Before ANDERSON, BALDOCK and EBEL, Circuit Judges.
STEPHEN H. ANDERSON, Circuit Judge.
1
Eugene M. Lonsdale, Sr. and Patsy R. Lonsdale commenced this suit against the United States1 seeking to prevent Internal Revenue Service levies on their wages and a credit union account, for unpaid income taxes on wages for the years 1981 through 1987. The complaint, styled as a quiet title action, asserts that the government has no power to tax wages and, therefore, lacks the right to collect unpaid income taxes assessed against the Lonsdales. It further asserts that the Internal Revenue Service has no power to impose levies because orders delegating such power were not published in the Federal Register as required by law, and because the relevant IRS forms do not carry an Office of Management and Budget control number allegedly as required by the Paperwork Reduction Act of 1980, 44 U.S.C. Secs. 3501-3520.
2
The government moved to dismiss on jurisdictional grounds, and, in the alternative, for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). The district court granted the motion without specifying the basis upon which it relied. The Lonsdales' subsequent motion for reconsideration was denied. On appeal the Lonsdales reassert the arguments which they made in the district court and raise other issues as well. However, because the dismissal below was necessarily based upon the complaint itself, we address only those matters pled in the complaint. For the reasons stated below, we affirm the dismissal of the Lonsdales' action.
I.
JURISDICTION
3
We agree with the government that this suit is barred by the Anti-Injunction Act, 26 U.S.C. Sec. 7421(a), which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person...." The statute excepts petitions to the United States Tax Court for a redetermination of a proposed deficiency, 26 U.S.C. Secs. 6212(a) and (c), 6213(a), and certain civil suits in the district court, 26 U.S.C. Secs. 7426(a) and (b)(1), 6672(b), 6694(c) and 7429(b). Taxpayers may also sue in the proper district court or the United States Claims Court for a refund of taxes paid. 26 U.S.C. Sec. 7422. A judicial exception to the act permits an injunction
4
if the taxpayer demonstrates that: 1) under no circumstances could the government establish its claim to the asserted tax; and 2) irreparable injury would otherwise occur. Bob Jones University v. Simon, 416 U.S. 725, 737, 94 S.Ct. 2038, 2046 [40 L.Ed.2d 496] (1974); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6-8, 82 S.Ct. 1125, 1128-29 [8 L.Ed.2d 292] (1962).
5
Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983).
6
The Lonsdales' complaint states that it seeks injunctive and declaratory relief as well as a refund of amounts collected pursuant to the levies in question. But their complaint is essentially an attempt to prevent the collection of assessed taxes by challenging the underlying tax assessments. That challenge violates the Anti-Injunction Act on its face. The ways to challenge assessments and collections are set forth above. This suit is not one of them.
7
The Lonsdales seek to avoid the jurisdictional restrictions of the Anti-Injunction Act by characterizing their action as one to quiet title and alleging jurisdiction under 28 U.S.C. Sec. 2410(a) which provides in relevant part:
8
[T]he United States may be named a party in any civil action or suit in any district court ... having jurisdiction of the subject matter to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien.
9
We reject the proposition that 28 U.S.C. Sec. 2410 provides jurisdiction for an action essentially contesting liability for assessed taxes, where the taxpayers have had the elective opportunity described above--whether or not used--to seek a redetermination in the tax court or a refund of contested payments in the district court. The Anti-Injunction Act begins with the phrase "no suit."
10
The intent behind the statute is the protection of the government's need to assess and collect taxes as expeditiously as possible without preenforcement judicial interference and to require that disputed sums of taxes due be determined in suits for refund.
11
Lowrie v. United States, 824 F.2d 827, 830 (10th Cir.1987).
12
Thus, this and other courts have rejected attempts by taxpayers to invoke the waiver of sovereign immunity for the purpose of circumventing the time honored "pay first, litigate later" rule, by framing their contest of the Government's tax assessment or collection actions in the guise of a quiet title action. See Schmidt v. King, 913 F.2d 837 (10th Cir.1990); Pollack v. United States, 819 F.2d 144 (6th Cir.1987); Laino v. United States, 633 F.2d 626, 633 n. 8 (2d Cir.1980); Mulcahy v. United States, 388 F.2d 300 (5th Cir.1968); Falik v. United States, 343 F.2d 38 (2d Cir.1965); Pipola v. Chicco, 274 F.2d 909, 913-914 (2d Cir.1960); Quinn v. Hook, 231 F.Supp. 718, 720 (E.D.Pa.1964), aff'd per curiam, 341 F.2d 920 (3d Cir.1965); McCann v. United States, 248 F.Supp. 585 (E.D.Pa.1965); Broadwell v. United States, 234 F.Supp. 17 (E.D.N.C.1964), aff'd, 343 F.2d 470 (4th Cir.1965), cert. denied, 382 U.S. 825, 86 S.Ct. 57, 15 L.Ed.2d 70 (1965); Shaw v. United States, 321 F.Supp. 1267 (D.Vt.1970), aff'd, 71-1 U.S.T.C., para. 9220 (2d Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1378, 28 L.Ed.2d 650 (1971). The bulk of the complaint in this case, which simply contests the assessment of income taxes, falls within the category and the prohibitions described.
13
The Lonsdales argue that Sec. 2410 at least confers jurisdiction upon the part of their suit that challenges the levies in question on the grounds that the Internal Revenue Service has no lawful delegation of authority to issue levies, and that the Paperwork Reduction Act has been violated. We have recognized that "[w]hen the taxpayer challenges the procedural regularity of [a] tax lien and the procedures used to enforce the lien, and not the validity of the tax assessment, sovereign immunity is waived." Schmidt v. King, 913 F.2d at 839; National Commodity and Barter Ass'n v. Gibbs, 886 F.2d 1240, 1246, n. 6 (10th Cir.1989).2 But such waiver must be narrowly construed, id., and whatever narrow jurisdiction may lie under Sec. 2410 does not extend to an omnibus challenge to the authority of the Internal Revenue Service to function. See generally United States v. Morrison, 247 F.2d 285, 290 (5th Cir.1957) (the primary application of Section 2410(a)(1) is to allow joinder of the Government to settle "the traditional controversy in which a private party asserts an ownership which is superior to the claimed lien of the United States Government."); Quinn v. Hook, 231 F.Supp. at 720 ("the purpose of the amendment, as clearly stated in the House and Senate reports, is to permit the United States to be made a party defendant in cases involving foreclosure of mortgages or liens on personal property and to provide a method to clear real estate titles of questionable or valueless Government liens.").
14
The Lonsdales' argument concerning the regularity of the levies must be tested under the judicial exception to the Anti-Injunction Act referred to above, relating to cases where it is clear that under no circumstance could the government ultimately prevail. For practical purposes, the Lonsdales would face the same burden with respect to these purely legal questions if jurisdiction was founded on Sec. 2410 rather than on the judicial exception to the Anti-Injunction Act, but here they must also show irreparable injury. In any event, for the reasons set forth below, we reject the Lonsdales' delegation of authority and Paperwork Reduction Act claims as a matter of law. It follows that the exception to the Anti-Injunction Act cannot apply to avoid the jurisdictional bar here.
15
Finally, the Lonsdales cite numerous other statutes in their complaint as conferring jurisdiction--28 U.S.C. Secs. 1331, 1340, 1361, 2463; 5 U.S.C. Secs. 301, 556(d), 558, 559, 701-706; 26 U.S.C. Secs. 7214(a)(1), (2) and (7) (R.Vol. I, Tab 1 at 3). None of those statutes waive the government's sovereign immunity here. Sovereign immunity is not waived by general jurisdictional statutes such as 28 U.S.C. Sec. 1331 (federal question jurisdiction), 28 U.S.C. Sec. 1340 (jurisdiction over actions arising under the Internal Revenue Code), and 28 U.S.C. Sec. 1361 (action to compel a government officer to perform his duty). See Coggeshall Development Corp. v. Diamond, 884 F.2d 1, 3-4 (1st Cir.1989); Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir.1978); Carelli v. Internal Revenue Service, 668 F.2d 902, 904 (6th Cir.1982). Rather, the taxpayer must find an explicit waiver of sovereign immunity. Section 2463 of Title 28, which provides that property taken or detained under any federal revenue law shall be subject only to the orders of the courts of the United States having jurisdiction thereof, similarly does not constitute the necessary explicit waiver of sovereign immunity. See Nehf v. United States, 302 F.Supp. 356, 359 (N.D.Ill.1969). Furthermore, Sec. 2463 was not intended to confer jurisdiction on the federal district courts over property levied upon and seized under the Internal Revenue Laws. Morris v. United States, 303 F.2d 533, 535 (1st Cir.), cert. denied, 371 U.S. 827, 83 S.Ct. 48, 9 L.Ed.2d 66 (1962). See also New Hampshire Fire Insurance Co. v. Scanlon, 362 U.S. 404, 408, 80 S.Ct. 843, 846, 4 L.Ed.2d 826 (1960).
16
Most of the provisions of the Administrative Procedure Act cited by the Lonsdales--5 U.S.C. Secs. 556(d), 558, 559, 701, 703-706--do not deal with jurisdiction or waiver of sovereign immunity. Nor does Sec. 7214 of the Internal Revenue Code, which provides criminal penalties for unlawful acts of revenue officers or agents.
17
Nor does 5 U.S.C. Sec. 702 waive sovereign immunity here. The Administrative Procedure Act itself is not a grant of jurisdiction for the review of agency actions. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). The language of this section and the amendments thereto merely suggest that sovereign immunity will not be a defense in an action in which jurisdiction already exists. Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir.1978); Lee v. Blumenthal, 588 F.2d 1281, 1283 (9th Cir.1979). Section 702 by its very terms disclaims any "authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U.S.C. Sec. 702(2). As explained above, Congress has provided express methods by which proposed deficiencies, assessments, or collections of taxes may be challenged, and express prohibition in the Anti-Injunction Act, 26 U.S.C. Sec. 7421(a) against suits brought for the purpose of restraining the assessment or collection of any tax except in the prescribed manner.
II.
18
FEDERAL REGISTER ACT, FOIA, PAPERWORK REDUCTION ACT, AND
19
SIMILAR CHALLENGES TO AUTHORITY OF IRS EMPLOYEES
20
The Lonsdales argue that the IRS lacked the authority to issue summons or impose levies or liens because the Treasury Department Orders delegating that authority to the Commissioner of the IRS were never published in the Federal Register, as required by the Federal Register Act, 44 U.S.C. Secs. 1501-1511 ("FRA") and the Administrative Procedure Act, 5 U.S.C. Secs. 552, et seq., ("APA"), and because the relevant IRS forms did not contain an Office of Management and Budget Control Number allegedly as required by the Paperwork Reduction Act of 1980, 44 U.S.C. Secs. 3501-3520.
21
We easily dispose of the Lonsdales' claim under the Paperwork Reduction Act. The Act provides in pertinent part:
22
... no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved was made after December 31, 1981, and does not display a current control number assigned by the Director [of the Office of Management and Budget], or fails to state that such request is not subject to this chapter.
23
44 U.S.C. Sec. 3512. Pursuant to 44 U.S.C. Sec. 3518(c)(1)(B)(ii) "this chapter does not apply to the collection of information ... during the conduct of ... an administrative action or investigation involving an agency against specific individuals or entities." We agree with those courts that have relied upon section 3518(c)(1)(B)(ii) to hold that the Paperwork Reduction Act is inapplicable to "information collection request" forms issued during an investigation against an individual to determine his or her tax liability. See Neumann v. United States, 1990 WL 209631, 1990 U.S.Dist. LEXIS 8312 (W.D.Mich.1990); United States v. Nat'l Commodity and Barter Assoc., 1990 WL 85905, 1990 U.S.Dist. LEXIS 5177 (D.Colo.1990); Van Sant v. United States, 1990 WL 21279, 1990 U.S.Dist. LEXIS 2843 (D.Colo.1990), aff'd 1990 U.S.App. LEXIS 14191 (10th Cir.); United States v. Particle Data, Inc., 634 F.Supp. 272, 275-76 (N.D.Ill.1986); Snyder v. Internal Revenue Service, 596 F.Supp. 240, 250 (N.D.Ind.1984); Cameron v. Internal Revenue Service, 593 F.Supp. 1540, 1556 (N.D.Ind.1984), aff'd 773 F.2d 126 (7th Cir.1985); see also Hatcher v. United States, 733 F.Supp. 218, 221 (M.D.Pa.1990) ("While Hatcher may be correct that the Act states that nobody may be punished for failure to file an 'information collection request' which does not comply with the Act, the Act does not allow an individual to ignore a summons."). Thus, any alleged failure to comply with the Paperwork Reduction Act provides no basis for avoiding the levies imposed on the Lonsdales' wages and credit union account.
24
The Lonsdales next argue that the failure to publish Treasury Department Orders (TDOs) 150-37 (1955) and 150-10 (1982) in the Federal Register rendered all action taken by the IRS against them unlawful. TDO 150-37 and TDO 150-10 delegated authority from the Secretary of the Treasury to the Commissioner of the IRS to take various actions to administer and enforce the Internal Revenue laws.3 Apart from the publication argument, the Lonsdales do not appear to challenge the existence of that delegation authority, nor do they specifically challenge the validity of any subdelegations of authority from the Commissioner to subsidiary officials. They challenge only the validity of the TDOs because they were unpublished. We reject that argument.
25
Under section 1505(a) of the FRA, the following must be published in the Federal Register:
26
(1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect ...
27
(2) documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and
28
(3) documents or classes of documents that may be required so to be published by Act of Congress.
29
44 U.S.C. Sec. 1505(a). The Act further provides that "every document or order which prescribes a penalty has general applicability and legal effect." Id. 44 U.S.C. Sec. 1507 provides:
30
A document required by section 1505(a) of this title to be published in the Federal Register is not valid as against a person who has not had actual knowledge of it until the duplicate originals or certified copies of the document have been filed with the Office of the Federal Register and a copy made available for public inspection as provided by section 1503 of this title.
31
The TDOs are not "Presidential proclamations" or "Executive orders," and they are not documents that the President has determined to have general applicability and legal effect. Subsection (3), "documents that may be required so to be published by Act of Congress," is only applicable if Congress has prescribed publication elsewhere. The Administrative Procedure Act is the only apparent source of such a prescription. As shown by our discussion below the APA contains no requirement to publish TDO's; accordingly, we hold that the FRA did not require publication of TDO 150-37 or 150-10. See Murdock v. United States, 1990 WL 120664, 1990 U.S.Dist. LEXIS 9269 (D.Utah 1990); United States v. Nat'l Commodity and Barter Assoc., 1990 WL 85905, 1990 U.S.Dist. LEXIS 5177 (D.Colo.1990); Van Sant v. United States, 1990 WL 21279, 1990 U.S.Dist. LEXIS 2843 (D.Colo.1990) ("A Treasury Department order--such as the one at issue in this case--need not be published in the Federal Register.") (citing 44 U.S.C. Sec. 1505(a)); Reimer v. United States, 1990 WL 85686, 1990 U.S.Dist. LEXIS 1167 (D.Haw.1990) ("the court is not convinced that such publication [of TDO 150-37] is required by the statute cited [44 U.S.C. Sec. 1505(a) ]"); but see Hatcher v. United States, 733 F.Supp. 218 (M.D.Pa.1990).
32
The Lonsdales next argue that section 552 of the APA, more commonly known as the Freedom of Information Act ("FOIA") required publication of TDO 150-37 and TDO 150-10. The FOIA provides in pertinent part:
33
Each agency shall separately state and currently publish in the Federal Register for the guidance of the public--
34
(A) descriptions of its central and field organization ...
35
(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
36
(C) rules of procedure ...
37
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency;
38
. . . . .
39
Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.
40
5 U.S.C. Sec. 552(a)(1). We conclude, as have other courts, that the APA does not require publication of TDOs such as 150-37 and 150-10 which internally delegate authority to enforce the Internal Revenue laws. See United States v. Goodman, 605 F.2d 870, 887-88 (5th Cir.1979) (court held that unpublished delegation of authority from Attorney General to Acting Administrator of the DEA did not violate either the FRA or the APA, relying on APA cases to the effect that internal delegations of authority need not be published and do not "adversely affect" the public.); Hogg v. United States, 428 F.2d 274, 280 (6th Cir.1970) ("We hold that the Administrative Procedure Act does not require that all internal delegations of authority from the Attorney General must be published in order to be effective."), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 805 (1971); Neumann v. United States, 1990 WL 209631, 1990 U.S.Dist. LEXIS 8312 (W.D.Mich.1990) (applying 5 U.S.C. Sec. 552(a)(1) the court noted that "[a]n internal delegation of administrative authority does not adversely affect members of the public and need not be published in the Federal Register to be valid."); United States v. McCall, 727 F.Supp. 1252 (N.D.Ind.1990) ("It is well-settled that 'rules of agency organization, procedure, or practice' need not be published to be effective. D & W Food Centers, Inc. v. Block, 786 F.2d 751 (6th Cir.1986); 5 U.S.C. Sec. 553(b)(3)(A). The court finds the delegation orders at issue here to be such rules of internal agency procedure, obviating their publication in the Federal Register.").
41
Finally, the Lonsdales raise arguments regarding the alleged nonpublication of the central organization of the Internal Revenue Service by the Treasury Department, and failure to publish IRS forms such as form 1040. These arguments are specious. At the very least, taxpayers have actual notice of form 1040 and similar forms; and descriptions permitting an understanding of the organization of the Internal Revenue Service are published by statute and in the Code of Federal Regulations. See, e.g., 26 U.S.C. Secs. 7801-7810; 26 C.F.R. Part 600, et seq. The tax laws, including their administration and enforcement by the Internal Revenue Service, a division of the Department of the Treasury, are probably the best publicized and indexed area of federal law, consisting of a separate title of the United States Code, Title 26, and the Code of Federal Regulations, Title 26 (spanning eighteen volumes), plus extensive commercial compilations and explanations. For example, Vol. 12 CCH Federal Tax Reporter, p 44-254-44,920, sets out IRS organization, practice and procedure in great detail.
42
In short, the Lonsdales' publication arguments are utterly meritless.
III.
SANCTIONS
43
The government has sought sanctions against the Lonsdales, and they have had an opportunity to respond. See Braley v. Campbell, 832 F.2d 1504 (10th Cir.1987). With respect to the Lonsdales' claims relating to delegations of authority and the Paperwork Reduction Act and similar arguments, we deny the request for sanctions. Although the issues are meritless, we cannot say that the law with respect to them is so well settled, at least prior to this case in this circuit, that they can be deemed frivolous where pro se litigants are concerned; and the record does not indicate that the Lonsdales have previously attempted to litigate these points.
44
However, as indicated above, the bulk of the Lonsdales' suit constitutes a refrain about the federal government's power to tax wages or to tax individuals at all, which the Lonsdales have been pursuing for at least fourteen years. See Lonsdale v. Smelser, 709 F.2d 910 (5th Cir.1983); Lonsdale v. Commissioner, 661 F.2d 71 (5th Cir.1981), aff'g 41 T.C.M. (CCH) 1106 (1981); Lonsdale v. Smelser, 553 F.Supp. 259 (N.D.Tex.1982); Lonsdale v. Egger, 525 F.Supp. 610 (N.D.Tex.1981).4 After exercising considerable patience and tolerance, the Fifth Circuit finally imposed money sanctions totaling $1,445.55 on the Lonsdales for their repeated attempt to relitigate issues already adjudicated by the courts. Lonsdale v. Smelser, 709 F.2d at 911. Furthermore, since this circuit has made itself clear on these and similar issues numerous times, the Lonsdales cannot by any stretch of the imagination assert that their arguments regarding the taxability of wages have any support in this circuit. See United States v. Christensen, 1990 U.S.App. LEXIS 17594 (10th Cir.1990); United States v. Mann, 884 F.2d 532 (10th Cir.1989); United States v. Dawes, 874 F.2d 746, 750-51 (10th Cir.1989); Charczuk v. Commissioner, 771 F.2d 471, 472-73 (10th Cir.1985); United States v. Stillhammer, 706 F.2d 1072, 1077-78 (10th Cir.1983).
45
As the cited cases, as well as many others, have made abundantly clear, the following arguments alluded to by the Lonsdales are completely lacking in legal merit and patently frivolous: (1) individuals ("free born, white, preamble, sovereign, natural, individual common law 'de jure' citizens of a state, etc.") are not "persons" subject to taxation under the Internal Revenue code; (2) the authority of the United States is confined to the District of Columbia; (3) the income tax is a direct tax which is invalid absent apportionment, and Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 15 S.Ct. 673, 39 L.Ed. 759, modified, 158 U.S. 601, 15 S.Ct. 912, 39 L.Ed. 1108 (1895), is authority for that and other arguments against the government's power to impose income taxes on individuals; (4) the Sixteenth Amendment to the Constitution is either invalid or applies only to corporations; (5) wages are not income; (6) the income tax is voluntary; (7) no statutory authority exists for imposing an income tax on individuals; (8) the term "income" as used in the tax statutes is unconstitutionally vague and indefinite; (9) individuals are not required to file tax returns fully reporting their income; and (10) the Anti-Injunction Act is invalid.
46
To this short list of rejected tax protester arguments we now add as equally meritless the additional arguments made herein that (1) the Commissioner of Internal Revenue and employees of the Internal Revenue Service have no power or authority to administer the Internal Revenue laws, including power to issue summons, liens and levies, because of invalid or nonexistent delegations of authority, lack of publication of delegations of authority in the Federal Register, violations of the Paperwork Reduction Act, and violations of the Administrative Procedure Act, including the Freedom of Information Act; and (2) tax forms, including 1040, 1040A, 1040EZ and other reporting forms, are invalid because they have not been published in the Federal Register.
47
We are confronted here with taxpayers who simply refuse to accept the judgments of the courts. As the Lonsdales already know from their experiences in the Fifth Circuit, the courts are not powerless in these circumstances and are not required to expend judicial resources endlessly entertaining repetitive arguments. Nor are opposing parties required to bear the burden of meritless litigation. See United States v. Christensen, 1990 U.S.App. LEXIS 17594; Charczuk v. Commissioner, 771 F.2d at 474-76; Van Sickle v. Holloway, 791 F.2d 1431, 1437 (10th Cir.1986). See also Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.1989). This case is similar to the situation which we recently considered in United States v. Christensen, 1990 U.S.App. LEXIS 17594, in which we imposed sanctions. 1990 U.S.App. LEXIS 17666. Sanctions are equally appropriate here and are imposed as follows: (1) double costs; and (2) $500.00 as an award to the government to defray a portion of its legal costs in responding to the frivolous issues raised in the Lonsdales' complaint. The government is directed to present a properly itemized statement of recoverable costs on appeal within 10 days.
CONCLUSION
48
We have considered all of the arguments made by the Lonsdales relative to issues raised in their complaint and reject them all. For the reasons stated above, the judgment of the district court dismissing the action in this case is AFFIRMED, and sanctions are imposed.
*
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 cause is therefore ordered submitted without oral argument
1
The complaint also referred to "Does 1 through 100". However, it pleads no cognizable cause of action against any individual, and seeks no relief against any individuals with the sole exception of a requested injunction against the United States and "its representatives and its agents and agencies from their unlawful Unconstitutional seizing of the Plaintiff(s) LABOR PROPERTY ..." R.Vol. I, Tab 1 at 13-14. Such claims against individuals in their official capacities are claims against the United States. Accordingly, we treat this action as one solely against the United States
2
Other circuits have permitted challenges to the validity of IRS levies and sales of assets to be brought under Sec. 2410, in limited circumstances. See Aqua Bar & Lounge, Inc. v. United States, 539 F.2d 935 (3rd Cir.1976); Elias v. Connett, 908 F.2d 521 (9th Cir.1990)
3
TDO 150-10, which superseded TDO 150-37, is as follows:
DATE: April 22, 1982 NUMBER: 150-10
SUBJECT: Delegation--Responsibility for Internal Revenue Laws
By virtue of the authority vested in me as Secretary of the Treasury, including the authority in the Internal Revenue Code of 1954 and Reorganization Plan No. 26 of 1950, it is hereby ordered:
1
The Commissioner of Internal Revenue shall be responsible for the administration and enforcement of the Internal Revenue laws
2
Commissioner Order No. 190 and General Counsel Order No. 4 state the powers delegated to the Chief Counsel for the Internal Revenue Service
3
All outstanding orders and delegations of authority relating to the above are modified accordingly
This order supersedes Treasury Department Order No. 150-37 dated March 17, 1955.
/s/ Donald T. Regan
Secretary of the Treasury
4
The following quote is a representative sample of assertions repeated over and over in the complaint:
The Defendant United States through its Internal Revenue Service employees erroneously illegally unlawfully and unConstitutionally made an Amendment 4 seizure of the Plaintiff(s) PROPERTY PERSONAL AND REAL in the form of their LABOR PROPERTY/LABOR SERVICES PROPERTY and their WAGE COMPENSATION PAYCHECK MONEY INCOME SPECIALIZED TYPE OF PROPERTY they receive directly from their OCCUPATION OF COMMON RIGHT by their LABOR PROPERTY and/or LABOR SERVICES PROPERTY the United States tax laws at the Federal Code of Tax Regulations at 26 C.F.R. 301.6331-1 and TITLE 26 U.S.C. Sec. 6331 since they have no lawful color of Constitutional taxing and tax collecting authority and jurisdiction to apply any Article 1, Sec. 8 INDIRECT EXCISE TAXES upon the Plaintiffs OCCUPATION OF COMMON RIGHT, their LABOR PROPERTY, their LABOR SERVICES PROPERTY, and their WAGE COMPENSATION PAYCHECK MONEY INCOME SPECIALIZED TYPE OF PROPERTY WITHOUT APPORTIONMENT., or with any 16th Amendment INDIRECT EXCISE INCOME TAX upon the Plaintiff(s) OCCUPATION OF COMMON RIGHT, their LABOR PROPERTY, their LABOR SERVICES PROPERTY, or their WAGE COMPENSATION PAYCHECK MONEY INCOME SPECIALIZED TYPE OF PROPERTY WITHOUT APPORTIONMENT., or with any 1939 PUBLIC EMPLOYEE SALARY TAX ACT "WITHHOLDING" DIRECT TAX which pertains strictly to federal government officers, employees, and elected officials., and; which is absolutely unConstitutional as shown by SECTION # 4 of the ACT and TITLE 4 U.S.C. Sec. 111., without APPORTIONMENT. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578161/ | 956 F.2d 1223
139 L.R.R.M. (BNA) 2607, 294 U.S.App.D.C. 102
DEPARTMENT OF the AIR FORCE, SCOTT AIR FORCE BASE,Petitioner/Cross Respondent,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross Petitioner.
No. 91-1042.
United States Court of Appeals,District of Columbia Circuit.
Argued Nov. 1, 1991.Decided Feb. 28, 1992.
On Petition for Review and Application for Enforcement of a Decision of the Federal Labor Relations Authority.
Marleigh D. Dover, Attorney, U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Leonard Schaitman, Attorney, U.S. Dept. of Justice, were on the brief, for petitioner/cross respondent.
Pamela P. Johnson, Attorney, Federal Labor Relations Authority, with whom William E. Persina, Sol., and William R. Tobey, Deputy Sol., were on the brief, for respondent/cross petitioner.
Before MIKVA, Chief Judge, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the court filed PER CURIAM.
PER CURIAM:
1
The Federal Service Labor-Management Relations Statute requires federal employers to disclose to unions information that is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," 5 U.S.C. § 7114(b)(4)(B), as long as, among other things, disclosure is "not prohibited by law." 5 U.S.C. § 7114(b). Invoking the statute, a union representing non-supervisory employees at Scott Air Force Base sought disclosure of a disciplinary letter sent to a supervisor against whom a union member had filed a grievance. Finding that disclosure was "necessary" under the statute and "not prohibited by law," the Authority ordered the Air Force Base to furnish the disciplinary letter to the union. The Air Force petitions for review, arguing that disclosure was in fact prohibited by the Privacy Act, 5 U.S.C. § 552a. In light of National Labor Relations Board v. Federal Labor Relations Authority, 952 F.2d 523 (D.C.Cir.1992), decided after oral argument in this case, we remand to the Authority to reconsider its determination that disclosure of the disciplinary letter was "necessary."
2
NLRB v. FLRA involved several cases, consolidated for appeal, in which the Authority had ordered disclosure of information concerning employee grievances after rejecting the federal employers' arguments that the documents contained information on "guidance, advice, counsel or training" for management, and were therefore exempt from disclosure under § 7114(b)(4)(C). The Court in NLRB v. FLRA upheld the Authority's interpretation of subsection (b)(4)(C), but remanded the cases nevertheless, holding that the Authority had failed properly to consider whether the information was "necessary" under subsection (b)(4)(B). Id. at 529-34.
3
The statute, the Court pointed out, "entitles the union to 'necessary,' not to 'relevant' information." Id. at 531. Accordingly, "the requisite strength of the union's 'need' will depend on the intensity of countervailing interests." Id. at 531. The Authority had considered only pro-disclosure interests, but the Court held that the statute requires consideration of countervailing interests against disclosure. Id. at 531. In the context of subsection (b)(4)(C), the Court said, information containing "guidance, advice, counsel or training" for management should be released upon union request "only in those circumstances when the union has a particularized need for the information." Id. at 532. Because the Authority "had required disclosure without explaining the 'necessity' of the requested information," id. at 534, the Court remanded for reconsideration.
4
Similarly here, the Authority ordered disclosure of the disciplinary letter without adequately explaining the "necessity" of the requested information. As in the NLRB v. FLRA cases, the Authority applied a standard of relevance, rather than necessity, contrary to the statute's requirement. In finding that disclosure of the disciplinary letter was "necessary," the Authority considered only the interests favoring disclosure, stating merely that the union needed the letter to evaluate the grievance, decide whether to pursue it, and to prepare for arbitration proceedings. But as the Court said in NLRB v. FLRA, "[i]f only pro-disclosure interests were material to § 7114(b)(4)(B), the statutory factor of 'necessity' would be surplusage." NLRB v. FLRA, supra, at 531. The Authority should have considered countervailing interests against disclosure, and because it did not do so we remand for reconsideration.
5
On remand, in weighing the "necessity" of disclosing the disciplinary letter, the Authority should consider the agency's interest, if any, in protecting the secrecy of its disciplinary decisions. The Authority should also consider the supervisor's privacy interest against disclosing the letter. We recognize that the Court in NLRB v. FLRA instructed the Authority to consider an anti-disclosure interest specifically identified in the statute--the interest in protecting the secrecy of "guidance, advice, counsel, or training" for management officials,5 U.S.C. § 7114(b)(4)(C)--and that the statute does not mention the interest of an agency or employee in preserving the secrecy of disciplinary records. But we see nothing in the term "necessary" that limits consideration to specifically mentioned anti-disclosure interests. Moreover, " 'efficient government' remains an independent and, to some extent, conflicting purpose of the statute," NLRB v. FLRA, supra, at 531, and requiring the Authority to consider the agency's interest in protecting its disciplinary records strikes us as entirely consistent with that statutory purpose. As for the employee's anti-disclosure interest, it is indisputable that an employee has a significant privacy interest in his or her disciplinary records. See, e.g., Dep't of the Air Force v. Rose, 425 U.S. 352, 377, 96 S.Ct. 1592, 1606, 48 L.Ed.2d 11 (1976); Dunkelberger v. Dep't of Justice, 906 F.2d 779, 781-82 (D.C.Cir.1990); United States Dep't of Justice and Immigration and Naturalization Service, 37 F.L.R.A. (No. 111) 1346, 1362-63 (1990).
6
In weighing the interests favoring and disfavoring disclosure, the Authority should also consider the interest against ordering disclosure now--that is, before a decision is made on the grievability of the underlying grievance. The Air Force contends that, because the underlying grievance seeks disciplinary action against a supervisor, it is outside the scope of the collective bargaining agreement and therefore not the proper subject of a grievance. We agree with the Authority that the grievability issue should be resolved first by the arbitrator, but we are also persuaded that there is a strong interest in postponing disclosure until after that resolution. If the Authority compels the Air Force Base to disclose the disciplinary letter, and the arbitrator then dismisses the grievance as not grievable, disclosure would have compromised the supervisor's privacy interest without providing any countervailing benefits. (If the arbitrator must see the disciplinary letter to determine whether the grievance is proper, she may review the document in camera.) To put it differently, we strongly doubt that information can be "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," if the union seeks to obtain the information for purposes not within the scope of collective bargaining. Cf. NLRB v. FLRA, supra, at 532 ("the union may well meet the particularized-need standard where the union has a grievable complaint covering the information ") (emphasis in original).
7
We are aware, of course, that the Authority has already conducted a balance of the supervisor's privacy interests against what it saw as the public interest under the Privacy Act. But such a balance cannot satisfy the "necessity" requirement of § 7114(b)(4)(B). The Authority has never balanced the union's interest in disclosure against the three non-disclosure interests we have identified: the agency's interest in confidentiality, the supervisor's interest in privacy, and particularly the interest in postponing disclosure until the grievability question is resolved. We leave it to the Authority to strike that balance in the first instance, and we express no view now on the Authority's Privacy Act analysis.
8
To summarize, in light of NLRB v. FLRA, we remand to the Authority to determine whether the disciplinary letter was "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." In determining whether the statute requires disclosure of the disciplinary letter, the Authority should weigh both the union's need for the information and the countervailing interests against disclosure. The Authority should consider the interests of the agency and the supervisor in preserving the confidentiality of disciplinary records. And it should consider the interest in postponing a decision on public disclosure until after the arbitrator determines whether the underlying grievance is grievable. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578177/ | 956 F.2d 1378
60 USLW 2618, 1992-1 Trade Cases P 69,726
LAWLINE, et al., Plaintiffs-Appellants,v.AMERICAN BAR ASSOCIATION, et al., Defendants-Appellees.
No. 90-2571.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 19, 1991.Decided Feb. 25, 1992.As Amended March 5, 1992.
Thomas Holstein (argued), Chicago, Ill., Alfred L. Levinson, Des Plaines, Ill., for plaintiffs-appellants.
Gillum Ferguson, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Crim. Div., Darryl L. DePriest (argued), Alison P. Breslauer, A. Benjamin Goldgar, Richard L. Reinish, Robert A. Creamer (argued), Keck, Mahin & Cate, Chicago, Ill., Dennis A. Rendleman, Illinois State Bar Ass'n, Staff Counsel, Springfield, Ill., Janet M. Hedrick, Rene A. Torrado, Jr. (argued), Vedder, Price, Kaufman & Kammholz, Rosalyn B. Kaplan, Asst. Atty. Gen., Office of the Atty. Gen., Nancy K. Needles, Asst. U.S. Atty., Office of the U.S. Atty., Civ. Div., Appellate Section, Fred Foreman, U.S. Atty., Crim. Div., James J. Grogan, James S. Renfroe (argued), Attorney Registration & Disciplinary Comm'n, Chicago, Ill., for defendants-appellees.
Before CUMMINGS and RIPPLE, Circuit Judges, and REYNOLDS, Senior District Judge.*
CUMMINGS, Circuit Judge.
1
This case presents antitrust and constitutional challenges to two legal ethics rules recommended by the American Bar Association and adopted by the Illinois Supreme Court and the United States District Court for the Northern District of Illinois. The disciplinary rules at issue forbid lawyers from assisting laypersons in the unauthorized practice of law (the "unauthorized practice rule") and also forbid lawyers from entering into partnerships with non-lawyers if any of the activities of the partnership consist of the practice of law (the "partnership rule"). Specifically, plaintiffs challenge ethics rules 5.4(b) and 5.5(b) contained in the ABA Model Rules of Professional Responsibility (the "Model Rules"). Model Rule 5.4(b) provides that "[a] lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law." Model Rule 5.5(b) states that "[a] lawyer shall not: assist a person who is not a member of the bar in the performance of activity that constitutes unauthorized practice of law." The Illinois Supreme Court and the Northern District of Illinois have adopted these rules verbatim. See Illinois Rules of Professional Conduct, effective August 1, 1990; Rules of Professional Conduct for the Northern District of Illinois, effective November 12, 1991, both containing the unauthorized practice rule at 5.5(b) and the partnership rule at 5.4(b).1
2
Plaintiffs contend that these two rules violate Sections 1 and 2 of the Sherman Antitrust Act (15 U.S.C. §§ 1 and 2). Plaintiffs also claim that the adoption of these two rules violates their constitutional right to due process and equal protection, as well as the rights secured them by the First Amendment. As a result of this alleged deprivation of rights, plaintiffs base part of their suit on the Civil Rights Act of 1871 (42 U.S.C. § 1983). They seek an award of money damages and a declaratory judgment that the contested rules are unconstitutional.
3
The district court dismissed plaintiffs' complaint on a Federal Rule of Civil Procedure 12(b)(6) motion for failure to state a claim on which relief can be granted. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons discussed below, we affirm the judgment of the district court.
I.
4
The first amended complaint describes the initial plaintiff, Lawline, as an unincorporated association of lawyers, paralegals and laypersons with its principal office in Chicago. The other three plaintiffs are Thomas Holstein, an Illinois lawyer who is the managing director and supervising attorney of Lawline; LeNore Nelson, a paralegal serving as Lawline's office manager and head paralegal; and Joyce Novak, a Chicagoan described as a general factory worker for Procter and Gamble Co. who received information from Lawline regarding Chapter 7 bankruptcy proceedings.
5
According to the plaintiffs, Holstein founded Lawline in 1978 to use law students, paralegals and lawyers to answer legal questions from the public without charge over the telephone and to assist them in representing themselves in routine legal matters. Lawline's other stated purposes are to refer members of the public without financial resources to agencies providing legal services and to refer them to young lawyers who charge reduced fees, thus creating a "prototype legal delivery system" subsidized by referral fees. In its ten years of existence, Lawline is said to have answered legal questions for more than 500,000 people, particularly in Illinois, Indiana and Wisconsin, and also nationally through a toll-free telephone number.
6
Plaintiffs' first amended complaint consists of 109 pages and has 86 pages of exhibits. The complaint names as defendants the American Bar Association ("ABA"), the Illinois State Bar Association ("ISBA"), the Chicago Bar Association ("CBA"), the Justices of the Illinois Supreme Court, the members of its Committee on Professional Responsibility, the members of its Attorney Registration and Disciplinary Commission ("ARDC"), the United States Trustee for the Northern District of Illinois, the United States Trustee's Assistant, and five members of the executive committee of the court below.
7
The ABA House of Delegates adopted Model Rule 5.4(b) and Rule 5.5(b) in 1983. Plaintiffs allege that the adoption of the two ethics rules at issue was the result of a conspiracy among the ABA House of Delegates, ISBA Delegates, and CBA Delegates to protect traditional law firms and restrain trade. In pursuance of the conspiracy the defendants allegedly agreed to have the three bar associations issue advisory ethics opinions prohibiting non-lawyers from owning financial interests in law firms and prohibiting lawyers from forming partnerships with non-lawyers if any of the activities of the partnership consist of the practice of law.
8
The Northern District adopted Model Rule 5.4(b) and Rule 5.5(b) in its Rules of Professional Conduct. The district court's general rules have been amended from time to time and its most recent modifications came too late to be mentioned in the amended complaint. They were promulgated on October 29, 1991, and became effective November 12, 1991. The district court's rules still contain the same two assailed provisions. Similarly, the Illinois Supreme Court's Committee on Professional Responsibility proposed identical provisions in 1987, and Rules 5.4(b) and 5.5(b) were incorporated into the Illinois Rules of Professional Conduct effective August 1, 1990.
9
Plaintiffs further complain that in February 1988, defendants United States Trustee and his assistant reported to the Illinois Supreme Court's Attorney Registration and Disciplinary Commission that non-lawyers at Lawline were giving legal advice to debtors in Chapter 7 bankruptcy proceedings. According to the plaintiffs, this report resulted in an investigation of managing director Holstein. A few months later the United States Trustee filed a motion in a bankruptcy proceeding to enjoin Lawline from engaging in the practice of law in bankruptcy proceedings. He also filed an adversary proceeding against plaintiffs Lawline, Holstein and Nelson in furtherance of the supposed conspiracy.
10
In their pleadings, plaintiffs assail the partnership rule and the unauthorized practice rule and assert that these provisions resulted from a conspiracy between the courts and the organized bar to monopolize the dissemination of legal advice in violation of the Sherman Act (Count I) and to deprive plaintiffs of their First Amendment rights to freedom of speech and association as well as their rights of due process and equal protection in violation of the 1871 Civil Rights Act (Count II). Count III sought a declaratory judgment that the Northern District and Illinois rules are unconstitutional on their face.2
11
Due to these alleged violations, plaintiffs contend that the defendants harmed Lawline by restricting it and other similar private law referral services from advertising. In addition plaintiffs allege that they were injured because Holstein and Nelson were prevented from forming a business entity to provide low-cost legal services, resulting in lost revenues of $650,000. In their prayers for relief, plaintiffs have sought treble damages, attorney's fees, and an injunction prohibiting the enforcement of the challenged rules and requiring defendants to adopt new rules permitting non-lawyers to own interests in law firms. They have also asked for an order requiring the establishment of a $1,000,000 research institute to promote "the development of interprofessional models for the cost-efficient delivery of legal information" and the "assistance of the general public in pro-se representations." Finally, they have sought an order enjoining adoption of a new Illinois Code of Professional Responsibility. However, that request became moot when, after the dismissal of plaintiffs' case, the Illinois Supreme Court repealed the Code of Professional Responsibility effective August 1, 1990, and substituted therefor the Illinois Rules of Professional Conduct.3
12
The district court issued a memorandum opinion and order pursuant to Federal Rule of Procedure 12(b)(6) granting the defendants' motions to dismiss for failure to state a claim upon which relief can be granted. Judge Holderman thoughtfully addressed the merits of plaintiffs' claims. He also noted that the over-lengthy complaint was "often confusing, needlessly repetitious, and permeated with unnecessary evidentiary allegations" in violation of Rule 8 of the Federal Rules of Civil Procedure and constituted an alternate basis for dismissal of the complaint. Lawline v. American Bar Ass'n, 738 F.Supp. 288, 291 n. 1 (N.D.Ill.1990).
II.
A. Sherman Act Immunity
13
In the opinion below, Judge Holderman held that all defendants were immune from federal antitrust liability so that Count I was dismissed. 738 F.Supp. at 292-293. We agree.
14
As to the three bar associations, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 controls. The disciplinary rules at issue in this case were adopted by the Illinois Supreme Court and by the court below. It is because of their adoption by these two governmental bodies that plaintiffs are supposedly restrained from practicing law. As the Supreme Court held in Noerr, "Where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the [Sherman] Act can be made out." 365 U.S. at 136, 81 S.Ct. at 529. It is immaterial that these rules were prompted by the defendant bar associations, because Noerr also decided that "the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive [here the judiciary acting in a legislative capacity] to take particular action with respect to the law that would produce a restraint or monopoly." Id. It is immaterial too that the bar associations encouraged the adoption of these rules because Allied Tube & Conduit Corporation v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 1936, 100 L.Ed.2d 497 decided that "those urging the governmental action enjoy absolute immunity for the anticompetitive restraint."
15
The plaintiffs also challenge as anticompetitive certain ethical opinions promulgated by the defendant bar associations. However, this Court has held that "when a trade association provides information" (by giving its approval in that case, its disapproval in this case) "but does not constrain others to follow its recommendations, it does not violate the antitrust laws." Schachar v. American Academy of Ophthalmology, Inc., 870 F.2d 397, 399 (7th Cir.1989) (citing Consolidated Metal Products, Inc. v. American Petroleum Institute, 846 F.2d 284 (5th Cir.1988)). This is so even where the organization at issue has a towering reputation. Id. Even if the Illinois State Bar Association had issued an opinion that it believed certain types of conduct to be violative of the Illinois Rules of Professional Conduct, that opinion could have no anticompetitive effect unless the Illinois State Supreme Court or the Northern District agreed with the ISBA's assessment. It is Illinois' and the Northern District's promulgation and enforcement of the challenged ethics rules and not private parties' interpretation of those rules that restrains competition. In sum, the three bar associations are immune from the alleged antitrust liability.
16
The district court also correctly held that the justices of the Illinois Supreme Court,4 the Attorney Registration and Disciplinary Commission, the Executive Committee of the district court, the United States Trustee and the United States Trustee's Assistant are immune from antitrust liability. The Illinois Supreme Court and the ARDC are protected by the state-action doctrine enunciated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315. There the Supreme Court adopted a state-action immunity from the Sherman Act because its legislative history showed no congressional purpose to restrain state action or official action directed by a state. Here the Illinois Supreme Court was acting in a legislative capacity and therefore in the same position as a state legislature, so that the activities in question are exempt from Sherman Act liability. Hoover v. Ronwin, 466 U.S. 558, 568, 104 S.Ct. 1989, 1995, 80 L.Ed.2d 590; Bates v. State Bar of Arizona, 433 U.S. 350, 360, 97 S.Ct. 2691, 2697, 53 L.Ed.2d 810. The ARDC serves as an agent of the Illinois Supreme Court; consequently the members of the ARDC also enjoy antitrust immunity. Bates, 433 U.S. at 361, 97 S.Ct. at 2697; Hoover, 466 U.S. at 572-573, 104 S.Ct. at 1997.
17
Similarly, the Executive Committee of the district court is insulated from Sherman Act liability. The members of that committee consist of five federal district court judges who are responsible for supervising and disciplining attorneys practicing before them. Since they are serving as instrumentalities of the United States, this suit cannot be maintained against them. Rex Systems, Inc. v. Holiday, 814 F.2d 994, 997 (4th Cir.1987).
18
The United States Trustee and the Trustee's assistant were also made defendants. Because in their official actions they are federal executive officers (28 U.S.C. §§ 581-582) and were acting in their official capacities, they also are not liable under the Sherman Act. Rex Systems, 814 F.2d at 997.
19
As the district judge held, Count I must be dismissed because all the defendants are immune from federal antitrust liability.
20
B. Liability under Section 1983 of the Civil Rights Act of 1871
1. State Action
21
In Count II plaintiffs allege that defendants' adoption and enforcement of the disciplinary rules at issue contravene the First Amendment and the Due Process and Equal Protection clauses of the United States Constitution, thus violating Section 1983 of the 1871 Civil Rights Act. In order to establish a viable claim of deprivation of rights under Section 1983, plaintiffs must not only show that their constitutional rights were violated, they must also show that the defendants acted under color of state law. Here the three bar associations have not engaged in state action by formulating the disciplinary rules in question. National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 194, 109 S.Ct. 454, 463, 102 L.Ed.2d 469 (holding that a state actor's voluntary decision to adopt a private association's rules did not transform the private association's rules into state rules nor did it transform the private actor into a state actor). In concluding that the private bar associations are not state actors for the purpose of Section 1983, this Court relies upon the fact that "the power to prescribe rules governing attorney conduct and to discipline attorneys for violating those rules, rests solely in [the Illinois Supreme Court]." People ex rel. Brazen v. Finley, 119 Ill.2d 485, 494, 116 Ill.Dec. 683, 687, 519 N.E.2d 898, 902 (1988). The Illinois Supreme Court has not only adopted its own disciplinary rules, but has also appointed an Attorney Registration and Disciplinary Commission not affiliated with the private bar associations to administer those rules. Similarly, the Northern District exercises exclusive power to regulate attorney conduct within its jurisdiction. See United States District Court for the Northern District, General Rules 3.51-3.53 (1991). Consequently, Count II is not viable against the three bar associations.5 Therefore it becomes necessary to see whether Count II states a claim against the Illinois Supreme Court, the ARDC and the Northern District's Executive Committee. As state actors performing acts in their legislative capacity, these defendants are immune from money damages. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731-737, 100 S.Ct. 1967, 1974-1977, 64 L.Ed.2d 641.
2. Constitutional Challenges
Due Process and Equal Protection
22
Plaintiffs also seek a declaratory judgment that the rules in question are unconstitutional as violative of the Due Process Clause and the Equal Protection Clause. Unless a governmental regulation draws a suspect classification or infringes on a fundamental right, the government need only show that its regulation is rationally related to a legitimate state interest. As the district court explained (738 F.Supp. at 295), the two rules in question meet this test because they are designed to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach (quoting from In re Schelly, 94 Ill.2d 234, 241, 68 Ill.Dec. 502, 505, 446 N.E.2d 236, 239 (1983)).
23
The partnership rule limitation promotes the independence of lawyers by preventing non-lawyers from controlling how lawyers practice law. The regulation attempts to minimize the number of situations in which lawyers will be motivated by economic incentives rather than by their client's best interests. See L. Harold Levinson, Independent Law Firms That Practice Law Only: Society's Need, the Legal Profession's Responsibility, 51 Ohio St. L.J. 229 (1990) (arguing that admitting non-lawyers into legal partnerships will impair the independence and decisional autonomy of lawyers and the legal profession). The state's interest in preserving the professional independence of lawyers is an adequate justification for the partnership rule and is within the legitimate interest of the state in governing the legal profession. Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (noting that States have broad power in regulating professional practice).
24
The district judge also held that the unauthorized practice rule is rationally related to a legitimate state interest. In reaching this conclusion, Judge Holderman relied upon the following quotation from the 1987 ABA Model Code of Professional Responsibility:
25
The prohibition against the practice of law by a layman is grounded in the need of the public for integrity and competence of those who undertake to render legal services. Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system, the public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession. 738 F.Supp. at 295-296 n. 8.
26
Some commentators disagree with government prohibitions against unauthorized practice, see, e.g., Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Problems, 34 Stan.L.Rev. 1 (1981) (arguing that restraints on lay practice are not necessary to a state's interest in preventing incompetent legal assistance); Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors--or Even Good Sense?, 1980 Am.B.Found.Res.J. 159 (tracing the history of restrictions on unauthorized practice and advocating their abolition); Milton S. Friedman, Capitalism and Freedom (1962) (arguing that licensure invariably leads to monopolistic control by members of an occupation). Although scholars may disagree about the effect of the legal ethics rules, the state may choose any regulations that are rational. When employing the appropriate rational basis test, this Court does not require that the state choose the wisest policy, only that it choose a constitutional one.
27
In sum, we too conclude that the assailed rules bear a rational relation to proper state goals, thus requiring the dismissal of the equal protection and due process claims.
First Amendment
28
The plaintiffs also assert that both the unauthorized practice rule and the partnership rule violate their First Amendment rights in violation of Section 1983 of the Civil Rights Act.
29
The plaintiffs contend that the unauthorized practice rule violates their First Amendment freedom of speech. Plaintiffs have conceded that the states have a right to restrict the practice of law to qualified individuals (Br. 13), thus justifying the unauthorized practice rule's provision that lawyers may not assist non-lawyers in the unauthorized practice of law. Any abridgment of the right to free speech is merely the incidental effect of observing an otherwise legitimate regulation. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 459, 467-468, 98 S.Ct. 1912, 1924-1925, 56 L.Ed.2d 444; Accountant's Society of Virginia v. Bowman, 860 F.2d 602, 604 (4th Cir.1988). While the practice of law and the exercise of free speech are not indistinguishable, neither are they mutually exclusive. As Erwin Griswold noted, "there are many things that lawyers do * * * which are properly also done by others." Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors--or Even Good Sense?, 1980 Am.B.Found.Res.J. 159, 195. There may well be many activities which lawyers routinely engage in which are protected by the First Amendment and which could not be constitutionally prohibited to laypersons. However, this Court will not strike down the unauthorized practice rule as facially invalid on the assumption that the Illinois Supreme Court and the Northern District will construe their unauthorized practice prohibitions so broadly as to infringe upon protected First Amendment rights.6 Although we uphold the validity of the unauthorized practice rule against facial constitutional attack, we do not speculate as to whether this regulation would be constitutional as applied to particular cases.
30
Plaintiffs also complain that "the practice of law" term in the unauthorized practice rule is unconstitutionally vague. This claim too has no merit. A statute may be void for vagueness if it is vague in all of its applications, Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 or if vague as applied, Parker v. Levy, 417 U.S. 733, 753-758, 94 S.Ct. 2547, 2560-2563, 41 L.Ed.2d 439. The unauthorized practice rule is not vague in all of its applications. There are some activities which clearly constitute the practice of law, such as representing another person at trial or signing legal documents filed in court on behalf of another person. Furthermore, as the unauthorized practice rule has not been applied to the plaintiffs' conduct, it may not be challenged as applied.
31
Finally, plaintiffs challenge the partnership rule as violative of their First Amendment freedom of association. In support of their claim, plaintiffs cite United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426. In that case the Supreme Court held that union members had a First Amendment right to collectively employ an attorney. It therefore invalidated an Illinois Supreme Court injunction that prevented the union's conduct as the unauthorized practice of law. In reaching its holding, the Supreme Court rejected the Illinois State Bar Association's argument that allowing a union to employ a lawyer would lead to "baseless litigation and conflicting interests between the association and individual litigants." Id. at 223, 88 S.Ct. at 356. Although the rationales advanced here in support of the partnership rule are exactly those advanced in the Mine Workers case, defendants have inexplicably failed to cite that case. This is so even though plaintiffs rely on this authority for the proposition that the inherent threat of public harm from allowing lawyers to practice law as partners of non-lawyers is as speculative as the threat posed by allowing lawyers to practice law as employees of non-lawyers.
32
Although this Court notes that the interests sought to be protected by the state in this case are nearly identical to those advanced in Mine Workers, there is an important difference between the two cases. Mine Workers does not establish laypersons' right to associate with lawyers in the abstract. Rather it supports the proposition that laypersons have a right to obtain meaningful access to the courts, and to enter into associations with lawyers to effectuate that end. In Mine Workers plaintiffs had shown that the association prohibited by the state rule was necessary for the union members in order to realize their right to free speech, petition and assembly. As the Court said in United Transp. Union v. State Bar of Michigan, the common thread in the line of cases that includes Mine Workers and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, "is that collective activity undertaken to provide meaningful access to the courts is a fundamental right within the protection of the First Amendment." 401 U.S. 576, 585-586, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339. This interpretation of Supreme Court precedent comports with the traditional understanding that freedom of association provides "a right to join with others to pursue goals independently protected by the first amendment." Laurence Tribe, American Constitutional Law, 1013 (2d ed. 1988).
33
In this case, however, no such fundamental right is at issue. Plaintiffs have not shown that laypersons will be deprived of meaningful access to the courts if lawyers are unable to form partnerships with laypersons. Thus the heightened scrutiny of the state's justification in Mine Workers has not been triggered in this case.
34
Like the unauthorized practice rule, scholars disagree about the desirability and effect of the partnership rule. Jurisdictions that disagree with restrictions on legal partnerships can change, and at least one jurisdiction already has changed, those rules. See Note, Law Firm Diversification and Affiliations Between Lawyers and Nonlawyer Professionals, Geo.J.Legal Ethics, Vol. III, No. 4, 885 (1990) (discussing Washington D.C.'s abandonment of the partnership rule). However, this Court is not persuaded that states are constitutionally required to do so.
35
Since these two rules do not violate the Due Process and Equal Protection clauses or the First Amendment, Count II was properly dismissed.
C. Dismissal of Count III
36
In Count III plaintiffs have sought a declaratory judgment under 28 U.S.C. §§ 2201-2202 that these rules are unconstitutional under the First and Fourteenth Amendments. The declaratory judgment act does not give subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194. As shown, Counts I and II were properly dismissed and therefore there is no basis for Count III. It was properly dismissed for want of jurisdiction.
37
Judgment of dismissal affirmed.
*
The Honorable John W. Reynolds, Senior District Judge for the Eastern District of Wisconsin, is sitting by designation
1
The amended complaint also challenges canon 3 and disciplinary rules 3-101(A) and 3-103 of the ABA Model Code of Professional Conduct (the "Model Code"), as adopted verbatim by the Northern District of Illinois in its Code of Professional Conduct pursuant to General Rule 3.52(B) of that court, and by the Illinois Supreme Court in the Illinois Code of Professional Responsibility, Ill.Ann.Stat. ch. 110A, Article VIII [Smith-Hurd 1985]. Because the ABA Model Rules superseded the ABA Model Code in 1983 and the challenged Model Code provisions are now extinct in Illinois state courts as well as the Northern District, this Court's analysis will focus on the applicable Model Rules as adopted and currently in force in both jurisdictions
2
Although the plaintiffs also challenged the two ethics rules as applied to them, plaintiffs have not been sanctioned by the Illinois Supreme Court or the Northern District and at oral argument the defendants stipulated that plaintiffs' conduct was not prohibited by the ethics rules at issue. Moreover, in their reply brief in this Court plaintiffs deny that any non-lawyers at Lawline have given legal advice without supervision by licensed lawyers. (Reply Br. at 2). Therefore, any argument concerning the application of the rules to the plaintiffs' conduct is not before us
3
In November 1990, prior to filing a brief on the merits, defendants United States Trustee and Assistant United States Trustee commendably filed a motion to dismiss the appeal as to them in order for us to try to dispose of the matter in abbreviated fashion pursuant to this Court's suggestion in Brooks v. Allison Div. of General Motors Corp., 874 F.2d 489, 490 (7th Cir.1989). The supporting and opposing documents totaled 42 pages and the numerous remaining defendants did not file similar motions. Consequently, our then motion judge determined that the best course was to defer ruling on the motion to dismiss until the whole controversy was resolved. In accordance with this opinion disposing of the entire case, the motion to dismiss has become moot
4
Our disposition of all counts with respect to the Illinois Supreme Court applies to its agent, the Committee on Professional Responsibility, as well
5
In addition, the United States Trustee and the Assistant United States Trustee are immune from a § 1983 suit because they are federal officers and their actions fall short of establishing a private conspiracy with state officials to deprive plaintiffs of their constitutional rights. See Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7th Cir.1980)
6
Indeed, plaintiffs do not refer to any Illinois or Northern District cases which adopt an overbroad interpretation of the unauthorized practice rules | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578180/ | 956 F.2d 1408
UNITED STATES of America, Plaintiff-Appellee,v.Joseph R. KOLLER, Defendant-Appellant.
No. 90-3787.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 20, 1991.Decided March 3, 1992.Order on Denial of Rehearing andRehearing En Banc April 22, 1992.
Matthew L. Jacobs, Asst. U.S. Atty., Milwaukee, Wis. (argued), for plaintiff-appellee.
Michael O. Bohren, Milwaukee, Wis. (argued), for defendant-appellant.
Before BAUER, Chief Circuit Judge, RIPPLE, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
1
A jury found Joseph Koller guilty of conspiring to distribute cocaine, distributing cocaine, possessing in excess of 500 grams of cocaine with the intent to distribute, money laundering, and possession of an interstate firearm as a convicted felon. Judge Evans, Eastern District of Wisconsin, sentenced him to 20 years on each of five counts and 27 years on each of three counts, all to be served concurrently. Koller appeals.
2
Shia Ben-Hur testified that he had sold cocaine to Koller on twenty-one occasions in 1987 and 1988. Koller resold some of this cocaine to Arlyn Ackley who sold it to an undercover agent on four occasions. Those sales formed the basis for Counts TWO through FIVE of the indictment charging violations of 21 U.S.C. § 841(a)(1). Ben-Hur was arrested for an unrelated cocaine sale in September 1988. Ben-Hur agreed to cooperate with the government in its investigation of several suspected drug traffickers, including Koller. Ben-Hur participated in a government controlled sale of 512 grams of cocaine to Koller, resulting in Count SIX of the indictment and an additional violation of § 841(a)(1). Koller was also charged with (Count ONE) and convicted of conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Counts ONE and SIX involved more than 500 grams of cocaine. Koller was convicted on Count SEVEN, money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i), and on Count EIGHT, possession of an interstate firearm as a convicted felon in violation of 18 U.S.C. § 922(g).
3
On this appeal Koller challenges various aspects of his conviction and sentence. Each argument will be addressed separately and any facts particularly relevant to that argument will be set out in the discussion.
I. MONEY LAUNDERING
4
Koller challenges the sufficiency of the evidence to support the money laundering conviction on count SEVEN. In April, 1988, Koller's girl friend, Jane Vossekuil, was taken into state custody for violation of her probation, because she had not paid her restitution obligation. She was told that her probation would be revoked unless she paid. Jane called Koller and asked him if he would pay it. He agreed and indicated that he would get some of the money from outstanding drug debts. After gathering the money, Koller went to the probation office and attempted to pay Jane's restitution obligation with over $2000 in cash. The probation officer, Ms. Ware, would not accept that amount of cash and told Koller that he needed to get a money order. Koller then took the cash to nearby Security Bank and purchased a money order. He told the teller that he needed the money in order to get his girl friend out of jail. There was no evidence that he was asked his name or that he made any misrepresentation to the bank. Koller returned to the probation office with the money order and used it to pay Jane's restitution obligation. Ms. Ware wrote out a receipt for the payment to "Gerald Kohler." Although Ms. Ware did not testify specifically that he told her his name was Gerald, she testified that she asked him how to spell his name or that she asked him how to spell "Gerald" and that he spelled it. She was unsure whether she confirmed the spelling of his last name. On cross examination she said that that was the only time he told her his name. A rational juror could infer from her testimony and the name on the receipt that Koller told her his first name was "Gerald" and could also infer that in doing so it was his design to conceal and disguise his identity as the owner of the money order and the funds it represented.1
5
Congress enacted the Money Laundering Control Act of 1986, Pub.L. No. 99-570, § 1352, 100 Stat. 3207-18 (codified at 18 U.S.C. § 1956), to make money laundering a crime and, thus, prevent drug traffickers from enjoying the profits of their crime. S.Rep. No. 433, 99th Cong., 2d Sess. 4 (1986). Senator Biden emphasized, upon introduction of the Senate Bill, that "[d]rug traffickers need money laundering to conceal the billions of dollars in cash generated annually in drug sales and to convert his [sic] cash into manageable form." Id. Section 1956(a)(1)(B)(i) makes it a crime to conduct a financial transaction knowing that the property involved in the transaction represents the proceeds of some form of unlawful activity and knowing that the transaction is designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of those proceeds.
6
There was a conflict in the evidence as to the source of the funds represented by the money order. Jane Vossekuil testified that Koller told her he was going to use the proceeds of his drug dealing, and there was evidence of such dealings. On the other hand, Ms. Vossekuil, Koller and others testified that he had borrowed the funds. Koller seems to argue that this was insufficient support for a verdict that the money originated from drug dealing, although he also seems to concede that the jury could disbelieve his witnesses. We think the jury could properly resolve this conflict against Koller.
7
Koller also argues that his payment of Ms. Vossekuil's obligation was not an offense because in a "classic" money laundering case the transaction is designed to hide the tainted money by converting it into something valuable which will provide a benefit for the money launderer. Here Koller obtained only Ms. Vossekuil's gratitude or perhaps her contractual obligation to repay the money.
8
It is true that one court has, in overturning money laundering convictions, considered whether the transaction could be described as a typical money laundering transaction, rejecting the argument that "the money laundering statute should be interpreted to broadly encompass all transactions, however ordinary on their face, which involve the proceeds of unlawful activity." United States v. Sanders, 928 F.2d 940, 946 (10th Cir.1991) (quoted in United States v. Jackson, 935 F.2d 832, 841 (7th Cir.1991). Sanders can readily be distinguished, and in Jackson, this court affirmed the conviction. We do not think the argument can be successful here. Even if Koller was making an outright gift to Ms. Vossekuil, a "transaction" is defined in this statute as including a gift. 18 U.S.C. § 1956(c)(3) (1988).
9
There are two transactions in this case, the purchase of the money order and the transfer of the money order to the probation officer in payment of Ms. Vossekuil's obligation. Because it is so clear that the purchase of the money order involved no concealment, we have considered, though not argued by Koller, whether that fact would prevent conviction for the second transaction.
10
In order to convict, the second transaction (where there was evidence of a design to conceal) must be a "financial transaction" as defined in 18 U.S.C. § 1956(c)(4). The part of the definition relevant here is as follows: "a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree." 18 U.S.C. § 1956(c)(4)(B) (1988). The government did introduce evidence of the activity of Security Bank, the issuer of the money order, in and affecting interstate commerce. In the case before us, there is no evidence that the purchase and use of a money order, and in that sense a "use" of the bank which issued it, was any part of the design to conceal or disguise anything about the funds. Had Koller used cash, as he originally attempted, and concealed his ownership, there would have been no proof of a "financial transaction" and therefore no offense under § 1956(a)(1). Such a transaction would have been a "financial transaction" only if the transaction "in any way or degree affects interstate or foreign commerce." 18 U.S.C. § 1956(c)(4)(A). There was no evidence that it did. The statute does not, however, literally require that the use of the financial institution with the interstate commerce nexus be a part of, contribute to, or facilitate the design to conceal, and since the purpose of the interstate commerce nexus is to provide a predicate for federal legislative jurisdiction, we think that the use of the financial institution involved in the transaction may be incidental, as it was here, and need not be shown to have been a part of, contributed to, or facilitated the design to conceal.
II. SPEEDY TRIAL
11
Koller objects to his conviction as in violation of the Speedy Trial Act, 18 U.S.C. § 3161, and the Fifth and Sixth Amendments. A summary of the chronology will aid in understanding the discussion. The conspiracy charged in Count ONE continued from May 8, 1987, to August 10, 1988. Four of the substantive offenses occurred from November 10, 1987, to December 22, 1987. The other three occurred from April 8, 1988, to November 2, 1988. Koller was originally arrested on November 2, 1988, and formal charges, in the form of a complaint, were filed the following day. Koller was then held without indictment until December 8, 1988, when the complaint was dismissed because the defendant's state parole was subject to revocation and he was taken into state custody. A new complaint was issued on December 15, 1989, and Koller was arrested upon his release from state custody December 18, 1989, pursuant to a warrant. Koller was indicted on January 16, 1990, and brought before a judicial officer on January 18, 1990. A superseding indictment was filed on February 7, 1990. After delay resulting from defense motions and the serious illness of a government witness, the trial began on September 5, 1990.
A. Speedy Trial Act
12
The speedy trial clock ultimately began to run with the December 18, 1988, arrest, 18 U.S.C. § 3161(d)(1) (1989); United States v. Nesbitt, 852 F.2d 1502, 1513 (7th Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); See also, United States v. Samples, 713 F.2d 298, 302-03 (7th Cir.1983) ("if an indictment is dismissed and the person is subsequently arrested, the re-indictment must be filed within thirty days of the subsequent arrest") and United States v. Bittle, 699 F.2d 1201, 1205 (D.C.Cir.1983), and the indictment of January 16, 1990, was filed within the required 30 days, 18 U.S.C. § 3161(b) (1989). The trial began 230 days after Koller's initial appearance before a judicial officer. Judge Evans found 153 days excludable because government witness Ben-Hur was unavailable and 19 days excludable due to a necessary substitution of defense counsel. Those exclusions reduce the delay to 58 days, well within the 70 days required. 18 U.S.C. § 3161(c)(1) (1989).
13
Koller challenges only the sufficiency of the showing upon which Judge Evans found witness Ben-Hur unavailable, a ground for exclusion under § 3161(h)(3). Shia Ben-Hur, the government's informant, had suffered a heart attack and was recovering from triple-bypass open-heart surgery. The government submitted the affidavit of the Assistant U.S. Attorney in charge of the case, in which she gave detailed information obtained from the witness' attorney regarding Ben-Hur's medical condition, his inability to testify, and the essential nature of his testimony. Koller argues that this evidence was hearsay and, therefore, insufficient. The determination of preliminary questions, such as the unavailability of a witness, is normally determined by the district judge in the exercise of his or her discretion. In making comparable preliminary determinations, the district judge is not bound by the rules of evidence. See, Fed.R.Evid. 104 (1990) and United States v. Faison, 564 F.Supp. 514, 518 (D.N.J.), aff'd without opinion, 725 F.2d 667 (3d Cir.1983). Decisions suggest that preliminary determinations made pursuant to the Speedy Trial Act should be accorded some deference. See, United States v. Bourne, 743 F.2d 1026, 1030-31 (4th Cir.1984) and United States v. McNeil, 911 F.2d 768, 773-74 (D.C.Cir.1990). Where, as in this case, the affidavit set out facts describing the medical condition of the witness and there was no evidence to suggest that the government's affidavit was untruthful or its information unreliable, the showing was sufficient for the district judge to find the witness unavailable due to his medical condition pursuant to § 3161(h)(3) of the Speedy Trial Act. The witness' own testimony at trial corroborated the statements in the affidavit.
B. Sixth Amendment
14
The fact that there was no violation of the Speedy Trial Act in this case does not preclude us from finding a violation of the Sixth Amendment right to a speedy trial. The Sixth Amendment right to a speedy trial, similar to rights arising from the Speedy Trial Act, does not arise until charges are pending. Periods of delay prior to arrest are irrelevant to Sixth Amendment analysis. United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Similarly, any delay after the government dismisses charges against a defendant and before charges are refiled does not implicate a defendant's speedy trial rights. Id. Thus, for purposes of Sixth Amendment analysis, the delay prior to Koller's second arrest on December 18, 1989, is irrelevant. The initiation of charges inevitably has adverse effects upon the accused, but once the charges are dismissed, the accused is "legally and constitutionally in the same posture as though no charges had been made." MacDonald, 456 U.S. at 10, 102 S.Ct. at 1503. We, therefore, address Koller's Sixth Amendment argument only with regard to the delay from the second arrest to the trial, eight and one-half months.2
15
The U.S. Supreme Court has identified four factors to be taken into account in determining whether the Sixth Amendment right to a speedy trial has been violated. Those factors are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his speedy trial right, and (4) the prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972). In setting out this test, the Court stated that it "regard[ed] none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. at 533, 92 S.Ct. at 2193.
16
The first factor, length of delay, was identified by the Court as "to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. For example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Id. at 530, 102 S.Ct. at 2192. In a prosecution for attempted murder and armed robbery, we decided that a delay of 8 months was enough to warrant an inquiry into the other three factors. United States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120, 1127 (7th Cir.1984), cert. denied, 471 U.S. 1056, 105 S.Ct. 2120, 85 L.Ed.2d 484 (1985). A delay of eight and one-half months is enough to warrant further inquiry in this case.
17
The third factor, assertion of the speedy trial right, does not favor Koller. There was no clear assertion of a speedy trial right, other than Koller's opposition to the government's motions for continuances due to the unavailability of Ben-Hur. He did make a motion to dismiss for delay in prosecution 36 days after indictment, but this appears really to have been a claim of pre-indictment delay, which is not relevant to Sixth Amendment analysis. Koller could not be said to have vigorously pursued a speedy trial.
18
Moving on to the fourth factor, "[p]rejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. Th[e] Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired ... If witnesses die or disappear during a delay, the prejudice is obvious." Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Koller did spend the entire eight and one-half months of delay in jail, but in Barker the Court found that ten months of incarceration prior to trial was not sufficient to rise to the level of serious prejudice. Id. at 534, 92 S.Ct. at 2194.
19
With respect to the impairment to his defense, the defendant cannot merely allege possible prejudice, he must show that his defense was impaired such that he suffered actual and substantial prejudice as a result of the delay. United States v. Deleon, 710 F.2d 1218, 1223 (7th Cir.1983); See also, United States v. Ashford, 924 F.2d 1416, 1421 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 98, 116 L.Ed.2d 69 (1991). Koller argues that he was prejudiced because two of his witnesses became unavailable due to the delay. Koller's son would have testified that the guns that formed the basis for the firearms possession charge (Count EIGHT) actually belonged to him and not to his father, but he died on August 28, 1990. Jeffrey Johnson, who would have provided alibi testimony on Counts THREE and FOUR, was stationed in Hawaii as a member of the U.S. Army and could not be contacted due to preparations for the Gulf War. Koller also asserts that the delay caused his witnesses' memories to fade, thus impairing his defense.
20
Koller's general allegation that his witnesses' memories faded during the delay does not rise to the level of specificity required to show actual prejudice. United States v. Brock, 782 F.2d 1442, 1447 (7th Cir.1986). On the other hand, Koller's allegation that two of his witnesses became unavailable is specific, but the unavailability had little effect at trial. Jeffrey Johnson's father, Mark Johnson, testified at trial to the same events to which Jeffrey was expected to testify. Mark Johnson testified that Koller arrived at his farm on November 18, 1987, and stayed there, helping him with chores, until November 29, 1987. Mark Johnson testified that Koller left the farm only briefly but was unaccompanied on some of those occasions. Counts THREE and FOUR alleged that Koller sold cocaine to Arlyn Ackley on two dates during the same time period. This testimony established a weak alibi at best. Jeffrey's testimony would have been purely cumulative, although arguably more credible because he was not a member of the Outlaws like his father. We conclude that Jeffrey's unavailability resulted in negligible, if any, actual prejudice, and Koller's failure to request a continuance based upon Jeffrey's unavailability, which was likely not permanent, also cuts against a finding of prejudice.
21
The defense did request a continuance due to the son's death. Koller's son had testified before the Grand Jury and the transcript of that testimony was available. Three other witnesses, Ronald Yenter, Nancy Shaw, and Lois Murray, testified that Koller's son won a gun at a West Allis tavern. Although these three witnesses' testimony was not particularly strong because they could not definitively identify the rifle, Koller's son, a known drug addict, would not necessarily have been a more reliable or believable witness. In addition, Koller could have used his son's Grand Jury testimony at trial in place of live testimony but chose not to do so. Fed.R.Evid. 804(b)(1) (1990). The unavailability of Koller's son likely resulted in some prejudice, but it could not be characterized as substantial.
22
Factors one and four favor Koller but are not strong enough to outweigh the government's legitimate reason for delay under factor two. The reason for delay in this case was the unavailability of a key government witness, Shia Ben-Hur. As discussed above, Ben-Hur had suffered a heart attack and undergone triple-bypass open-heart surgery. The delay of five months for Ben-Hur's recovery was not particularly long. "[A] valid reason, such as a missing witness, should serve to justify appropriate delay." Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Therefore, we hold that Koller's Sixth Amendment right to a speedy trial was not violated.
C. Fifth Amendment
23
Koller argues that the delay denied him due process. The delay from commission of the criminal act to indictment is relevant to due process analysis. Although the various offenses are alleged to have occurred over a period of about one year, Koller makes no argument concerning the delay before the last offense, and concentrates on the fourteen months from November 2, 1988, to January 16, 1991. During most of this period he was in state custody. The government could have obtained an indictment and retained or obtained custody for trial, but elected not to do so.
24
Two different standards have developed in this circuit for establishing a violation of due process by delay. United States v. Williams, 738 F.2d 172, 175 (7th Cir.1984). One line of cases requires that the defendant first show actual and substantial prejudice from the delay and then the burden shifts to the government to show that the delay was necessary. The court must balance the prejudice from the delay against the asserted reasons for delay. United States v. King, 593 F.2d 269, 272 (7th Cir.1979); United States v. Solomon, 688 F.2d 1171, 1179 (7th Cir.1982). Starting in 1983, another line of cases states that the defendant bears the burden of proving both that "the delay caused actual and substantial prejudice to his or her fair trial rights and that the government delayed indictment for tactical advantage or some other impermissible reason." United States v. Watkins, 709 F.2d 475, 479 (7th Cir.1983); United States v. Ashford, 924 F.2d 1416, 1419-20 (7th Cir.1991); United States v. Fuesting, 845 F.2d 664, 669 (7th Cir.1988); United States v. Antonino, 830 F.2d 798, 804 (7th Cir.1987). Several decisions have pointed out the conflict but have not resolved it. See e.g., Williams, 738 F.2d at 175 and Brock, 782 F.2d at 1443 n. 1. Because we conclude that the result would be the same under the King standard as under the Watkins standard, we do not resolve the conflict here.
25
Under either standard Koller has the burden to show actual and substantial prejudice from the delay. "The allegations of prejudice must be specific, concrete and supported by the evidence--vague, speculative, or conclusory allegations will not suffice." United States v. Fuesting, 845 F.2d 664, 669 (7th Cir.1988). Koller must point specifically to how he was prejudiced by the delay. Allegations that witnesses' memories have faded is not enough. Brock, 782 F.2d at 1444. The defendant must also allege more than that a particular witness is no longer available and that his testimony would have been favorable to the defense. United States v. Brown, 742 F.2d 359, 362 (7th Cir.1984). Koller has met the burden of specificity as to the counts where the missing witnesses could have helped. He has shown how two witnesses became unavailable due to the delay, and he has specifically described how their testimony could have helped him. As discussed above in the Sixth Amendment analysis, however, Koller has not shown that he was substantially prejudiced as to those counts by the unavailability of the two witnesses.
26
Koller also argues that the pre-indictment delay prejudiced him by preventing him from serving the sentences on these convictions concurrently with his parole revocation sentence. His confinement on the parole revocation, however, was a result of his state conviction rather than a sentence for the conduct underlying this federal prosecution. Koller has no right to serve his sentences on these two different convictions, one state and one federal, concurrently, and thus, he suffered no prejudice.
27
The two standards differ as to the proof required of the reason for delay. In this case, the pre-indictment delay was caused by the government's decision to delay the filing of federal charges until Koller was released from state custody for probation revocation. Although the government was not compelled to delay the trial until Koller was released from state custody, its decision to dismiss the indictment and reindict Koller upon his release was not an impermissible course of action.3 Awaiting his release from state custody was certainly a valid reason for delay rather than a pretext for the government to intentionally gain a tactical advantage over Koller. See, United States v. Carmany, 901 F.2d 76, 78 (7th Cir.1990) (awaiting the resolution of state proceedings is a valid reason for preindictment delay). The defendant has not proved that the government had an impermissible reason for the delay, and thus, under the Watkins standard the delay did not deny Koller due process. Likewise, under the King standard because the valid reason for the delay outweighs the less than substantial prejudice suffered by the defendant in this case we conclude that Koller was not denied due process.
III. OUTRAGEOUS CONDUCT
28
The 500 gram transaction charged in Count SIX increased the possible penalty upon conviction. Koller argues that the "government's outrageous involvement in creating the offense for punishment purposes only" violated his due process rights. Appellant's Brief at 35. Koller impliedly argues that the government created the offense in order to convict him of possession of a larger amount of cocaine and, thus, receive a longer sentence.4
29
For governmental conduct to constitute outrageous conduct which violates the due process clause, the conduct must be shocking to the universal concept of justice. United States v. Miller, 891 F.2d 1265, 1267 (7th Cir.1989). In this case, the government supplied cocaine to Ben-Hur, the defendant's supplier, for a transaction in an amount greater than any of the defendant's previous transactions with Ben-Hur. Ben-Hur suggested the transaction to Koller at the direction of the government. Koller had been buying cocaine from Ben-Hur for years and was clearly predisposed to commit the offense. The governmental conduct involved no more than a conventional sting operation and could not be characterized as shocking to the universal concept of justice.
30
The determination of what conduct is shocking to the universal concept of justice is essentially a judgment about whether the government has violated the community's moral standards. Miller, 891 F.2d at 1271 (Easterbrook, J., concurring). "[T]here is doubt as to the validity of the outrageous governmental conduct doctrine ... In any event we have never reversed a conviction on this ground." United States v. White, 950 F.2d 426, 431 (7th Cir.1991) (citations omitted); See also, Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (remedy of criminal defendant for acts of government agents lies solely in entrapment defense). Because the governmental conduct here clearly does not meet the standard for outrageous conduct, we need not decide whether this defense continues to have any vitality in this circuit.
IV. SENTENCING
31
Koller received sentences within the statutory range for his offenses. Under the Sentencing Guidelines, prior convictions were taken into account, and his sentences were greater than if he had not had those prior convictions. Koller contends that 21 U.S.C. § 851 (1990) applied and that prior convictions could not increase his sentence under the Guidelines because the government did not file an information alleging those prior convictions. Section 851 provides, "No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless ... the United States attorney files an information."
32
That section (enacted long before the Guidelines) applies to additional penalties provided by a repeater statute over and above the maximum penalty prescribed by statute for a particular offense. It has no application to the effect of prior convictions in deciding the appropriate sentence within such maximum pursuant to the Guidelines. Several other circuits have held that § 851 does not apply to enhancements under the Sentencing Guidelines. See, United States v. Sanchez, 917 F.2d 607, 616 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991); United States v. Whitaker, 938 F.2d 1551, 1552 (2d Cir.1991); United States v. Marshall, 910 F.2d 1241, 1244-45 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991); United States v. Wallace, 895 F.2d 487, 489-90 (8th Cir.1990); United States v. Novey, 922 F.2d 624, 627-29 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991); But see, United States v. Williams, 899 F.2d 1526, 1529 (6th Cir.1990).
33
Koller also argues that the district judge erred in not giving him credit for time served prior to sentencing pursuant to 18 U.S.C. § 3585(b). Section 3585 provides:
34
(b) Credit for prior custody--A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--
35
(1) as a result of the offense for which the sentence was imposed
36
18 U.S.C. § 3585(b)(1) (1990). A previous provision, repealed upon enactment of this section, gave the responsibility for making these calculations to the Attorney General. 18 U.S.C. § 3568 (1983). We previously held that in enacting § 3585 Congress did not intend to relieve the Attorney General of this responsibility. United States v. Brumbaugh, 909 F.2d 289 (7th Cir.1990). Therefore, as under repealed § 3568, Koller must first seek § 3585 credit from the Attorney General, and the district court has jurisdiction only to review the Attorney General's decision pursuant to 28 U.S.C. § 2241. See, United States v. Hornick, 815 F.2d 1156, 1160 (7th Cir.1987).
V. CONCLUSION
37
The convictions and sentences are AFFIRMED.
ORDER
38
April 22, 1992.
39
This case is before the court on a petition for rehearing and suggestion for rehearing in banc.
40
Defendant argues in his petition for rehearing that his arrest occurred December 15, 1987 when the state authority having him in custody was notified of the federal warrant, and that the thirty day period allowed by the Speedy Trial Act, 18 U.S.C. § 3161 ran from that date. The federal authorities did not take him into custody until December 18, the date of arrest on which we relied. The indictment was returned within thirty days of December 18, but not December 15.
41
Defendant did not make this argument until his reply brief, and thus waived it. Egert v. Connecticut General Life Ins. Co., 900 F.2d 1032, 1035 (7th Cir.1990).
42
All of the judges on the original panel have voted to DENY the petition for rehearing, and no judge in regular active service has requested a vote on the suggestion for rehearing in banc. Accordingly,
43
IT IS ORDERED that the aforesaid petition for rehearing be, and the same is hereby, DENIED.
1
He also had a motive for concealing ownership of funds which could raise a question as to their source. Koller's state parole agent testified that Koller reported to him bimonthly as to his activities. At each such meeting, Koller was required to sign a statement declaring that the report was a true account of his activities and that he understood that providing false information could constitute sufficient cause for revocation of his parole
2
In MacDonald, the Court implied the possibility of considering delay between dismissal and indictment where the government dismissed and later reinstituted charges in order to intentionally evade the speedy trial right. MacDonald, 456 U.S. at 10 n. 12, 102 S.Ct. at 1503 n. 12. In this case, however, the government clearly dismissed the charges because Koller was taken into state custody for violation of his parole
3
If the government had decided to indict Koller prior to his release from state custody and place him under detainer, Koller, of course, could have requested a final disposition of the charges against him and the government would be required to bring him to trial within 180 days of such request. 18 U.S.C. app. III § 2 (1988) (Interstate Agreements on Detainers Act)
4
We note that Koller does refer to this defense as "entrapment," but there was clear proof of predisposition | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578181/ | 956 F.2d 1418
UNITED STATES of America, Plaintiff-Appellee,v.Jerry LOCKHART, Defendant-Appellant.
No. 91-1055.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 10, 1991.Decided March 6, 1992.
Andrew B. Baker, Jr., Asst. U.S. Atty. (argued), Dyer, Ind., for plaintiff-appellee.
Fred W. Grady (argued), Grady, Terrell & Thrall, Valparaiso, Ind., for defendant-appellant.
Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and WILL, Senior District Judge.1
BAUER, Chief Judge.
1
Defendant Jerry Lockhart was charged in a two-count indictment with conspiracy to harbor and conceal a federal fugitive in violation of 18 U.S.C. § 371 (1988), and with harboring and concealing a federal fugitive in violation of 18 U.S.C. § 1071 (1988). A jury convicted Lockhart on both counts, and he appeals. Lockhart contends that the evidence on both charges was insufficient to support his conviction. He also argues that newly discovered evidence and Brady violations require a new trial. Finally, he asserts that the government misrepresented the facts and evidence in its reply to his post-trial motion for acquittal or a new trial. Lockhart asserts that the trial court relied upon these misrepresentations when it denied the motion, and that we therefore should reverse the district court's denial. For the reasons given below we affirm.
I.
2
Because of Lockhart's allegations that the government misrepresented the record and that the district court did not properly review the record in ruling on his post-trial motions, we shall refer to the record in our recitation of controverted facts.
3
Lockhart is in the auto parts business. He and his wife operate Burr Street Auto Salvage in Gary, Indiana. Before they began the Burr Street business, they owned a business called Doors Unlimited, also in Gary, which specialized in selling used car doors. Lockhart participated in two-way auto parts traffic with southern parts dealers. He purchased rust-free doors from older southern cars, which are not as prone to rust as northern cars. He sold engines, transmissions, and other mechanical parts from northern cars to replace worn out parts in sound-bodied southern cars.
4
The federal fugitive, Dennis Mathews alias James Mills, worked for Lockhart in the parts business. Mathews was prosecuted for possession of a stolen, retagged motor vehicle in 1986. He failed to appear in court on November 21, 1986, and was charged with unlawful flight to avoid prosecution. The United States District Court for the Northern District of Illinois issued an arrest warrant on December 15, 1986. Mathews evaded arrest until May 1989.
5
The government's theory was that Lockhart harbored Mathews because he was receiving stolen car parts from Mathews. Trial Transcript (Tr.) at 402-03. Mathews was friendly with Norwood Fitzgerald, who, in a separate action, pleaded guilty to conspiring to steal cars and sell the parts. Tr. at 407. Fitzgerald testified that he was "close friends" with Lockhart and Mathews. Tr. at 434. While a fugitive, Mathews stayed in the auto parts business. During 1987 and 1988, Mathews continued to buy parts for Lockhart and Burr Street Auto from parts dealers in the South. Tr. at 177. For example, sales receipts from a parts dealer in Mississippi showed that Mathews purchased parts for Burr Street Auto in February and August of 1988. Tr. at 179-181.
6
Lockhart bought and sold parts from Dennis Worley in Arkansas. On or around December 1986, Lockhart and Mathews purchased a 1982 Oldsmobile Toronado from Worley. They asked Worley if they could mail the title to the car to him. Tr. at 196-98. The car was titled in the Mills alias, Tr. at 632, 705; presumably Mathews wanted to send the title to Worley to avoid giving the state motor vehicles office his own address. Worley could not remember which one had asked about the title, although he believed Mathews was Lockhart's agent, and assumed Mathews was acting on Lockhart's behalf. Tr. at 199, 204. Worley agreed to accept the title, but his wife returned it to the postman because she did not recognize the name on it. Tr. at 196-97.
7
David Seal, the owner of Jasper Auto Parts in Jasper, Alabama, testified that Mathews came to his shop with Fitzgerald three or four times in late 1987 to sell parts. Tr. at 339-340, 355. Fitzgerald delivered stolen parts to Mathews in Alabama in 1987. Tr. at 419. Fitzgerald said some stolen parts were sold under Mathews's direction to Jasper Auto Parts. Tr. at 420. Lockhart and Mathews also bought and sold parts together from Seal every few months during 1987 and 1988. Tr. at 335-337. During this time period, Seal assumed Mathews represented Lockhart's Burr Street business because Mathews continued to drive Lockhart's white Chevrolet truck and trailer. Tr. at 340.
8
Fitzgerald said he and Mathews made at least fourteen trips to Jasper to sell stolen parts during 1987 and 1988. Tr. at 421, 423. One of Seal's employees testified that Seal paid Lockhart $4,500 in cash for stolen parts delivered during 1987. Tr. at 493-95, 526-27. Seal concealed a 1982 Oldsmobile Toronado for Mathews at Jasper Auto Parts for several months during late 1987 and early 1988, presumably because Mathews knew the FBI had identified it. Tr. at 495, 515, 571, 682. This apparently is the Toronado Lockhart and Mathews purchased from Worley in December 1986. See supra at 1419-20.
9
In January 1988, Lockhart started a partnership with James Snow in an auto salvage business called J and J Auto Parts. J and J was located in Double Springs, Alabama. Inventory for J and J came from Burr Street Auto, and Mathews delivered several truckloads of Burr Street parts to J and J. Tr. at 244. Fitzgerald (the confessed car thief) said he and Mathews chopped up stolen cars at J and J Auto Parts during a two-week period in 1988. Tr. at 438-39. J and J stayed in business for a few months, but the Double Springs location was not profitable. While the business was still operating, Lockhart told Snow that Mathews would be living in a trailer in the J and J salvage yard. Tr. at 253, 257. (Another witness, Dennis Lane, testified that Lockhart also arranged for Mathews to stay in a trailer at David Seal's business, Jasper Auto Parts. Tr. at 567.) Lockhart told Snow that Mathews was being hunted by the law because of a "divorce or something." Id. Mathews only stayed in the trailer a few nights. Tr. at 257, 567.
10
Snow got a permanent job offer, and wanted to get out of the J and J partnership. Lockhart asked him to sign his interest over to Mathews. Snow agreed to sign it over to Mathews using the alias James Mills. Tr. at 247-248. The bank account was transferred to Mathews on May 21, 1988. Tr. at 250. Mathews a/k/a Mills designated Lockhart as the death beneficiary on the bank account. Id. When the J and J location failed, Lockhart rented a drive-in theater to convert to a salvage yard. Mathews was present when Lockhart negotiated the agreement with the owner of the drive-in, and made some of the $500 rent payments. Tr. at 222, 224.
11
Apparently when the trailer at J and J proved unsatisfactory, Mathews (using his alias) rented an apartment in Jasper, Alabama, in June 1988. Tr. at 121. Jasper is twenty-five miles south of Double Springs, where J and J was located. Mathews paid the first month's rent and deposit in cash. He made subsequent payments in cash or by money order. He stayed in the apartment until late August or early September of 1988. Witnesses saw a wrecker with a "J and J, Double Springs" sign on the door parked outside Mathews's apartment in Jasper. Tr. at 151. They also saw a trailer loaded with auto parts and a white, dual-wheeled pick-up truck parked at the apartment. Tr. at 153. Seal testified that these vehicles belonged to Lockhart. Tr. at 340.
12
Fitzgerald testified before a grand jury that he transported and sold stolen parts for Lockhart and Mathews. Tr. at 451. He told the FBI the same thing on eight different occasions. Tr. at 452. But at trial, he maintained that Lockhart may not have known the parts were stolen and that some parts he transported for Lockhart were not stolen. Tr. at 427-29. Fitzgerald was plagued at trial by memory lapses regarding his relationship with Lockhart. When pressed with a transcript of his prior grand jury testimony, Fitzgerald said he told the grand jury the truth about Mathews but that he said Lockhart's name because "it was a habit to say his name all the time." Tr. at 449-51. Finally, however, Fitzgerald conceded that he was telling the truth when he told the grand jury that Lockhart knowingly purchased and sold stolen parts. Tr. at 452-53, 454, 456.2
13
After Mathews left his apartment in Jasper, Alabama in September 1988, Special Agent Robert Becker noticed the pickup Mathews reportedly was driving in Gary, Indiana. Fitzgerald had informed Becker that Mathews was driving a red and beige pickup, and that he returned to Gary on weekends to see his family. Tr. at 641. Becker testified that he noticed Mathews's truck at his father's home in Gary at 7:00 a.m. on September 26, 1988. Mathews's father told Becker the truck belonged to one of Lockhart's employees, James Mills. (By this time the FBI knew Mathews was using the alias James Mills.) Tr. 647-48. Mathews's wife and father live only a few doors apart, and just a short distance from Burr Street Auto. When agents moved into the area, Lockhart drove into Mathews's wife's driveway and tried to enter her home. Tr. at 649-50. When Agent Becker questioned Lockhart, Lockhart said he was trying to find an employee whose father had taken ill. Tr. at 654-55. The agents were unable to locate Mathews on September 26.
14
They impounded the truck, which they discovered had been reported stolen in Kentucky the previous year, and retagged. Tr. at 661. Retagging means that the vehicle identification number plate is removed from one vehicle and placed on another (usually stolen) one to disguise the second vehicle's identity. Tr. at 626. Inside Mathews's truck, the FBI found title and registration documents in the name of James Mills, Tr. at 661-62, as well as receipts for auto parts, some of them made out to Burr Street Auto. Tr. at 664.
15
Becker testified that on October 25, 1988, Lockhart approached the FBI through a Gary police officer to negotiate a possible surrender for Mathews. Tr. at 678. Lockhart told Becker that he knew Mathews had been a fugitive for the past two years, but that they remained in contact. Tr. at 679. Lockhart told Becker that Mathews was working for him, and Mathews was considering surrendering himself. Tr. at 680. Lockhart also told Becker that he had come to Mathews's wife's home on September 26, 1988, because Mathews was in the home, and Lockhart wanted to draw the FBI away. Tr. at 683. Becker testified that Lockhart said he helped Mathews get an Indiana drivers license in the name of James Mills. Tr. at 684. Lockhart also said he had given Mathews his own license to use. Id. The FBI does not negotiate surrender terms with fugitives, Tr. at 681, 688, and Mathews remained a fugitive until May 1989. Appellant's Br. at 27.
16
On October 31, 1988, Becker saw a Buick Riviera registered to Mathews's wife in Lockhart's driveway at 6:10 a.m. Tr. at 690. On November 23, 1988, Becker interviewed Mathews's father, Wilbur Mathews. Wilbur told Becker that the truck had been in his son's sole possession until the FBI seized it. Becker asked Wilbur how to contact Mathews. Wilbur said he contacted his son through Lockhart, and suggested that Becker do the same. Tr. at 692-93. Wilbur did not testify at trial. On January 30, 1990, (in the midst of the trial), he contacted the government and recanted his statements to Becker. Tr. at 614. The government informed the court and Lockhart's counsel of Wilbur's recantation on January 31, 1990. Tr. at 614-15. Because of his denials, the government did not call him as a witness. Tr. at 615. Neither did Lockhart.
17
Mathews did take the stand for the defense and testified that Lockhart did not know he was a fugitive, Tr. at 976, and did not associate with him in any way after 1986. Tr. 999, 1004. The court admitted telephone records from J and J and Burr Street Auto. These records showed calls to Norwood Fitzgerald, as well as to Mathews's relatives, were billed to Lockhart. Tr. at 716-17. Although the dates of the calls are not in the record, we assume they were made during the period that Mathews was a fugitive, or the court would have barred them on relevancy grounds. There were forty-six calls to Fitzgerald, one call to Mathews's brother, three calls to Wilbur Mathews, and forty-seven calls to Terry Millspaugh, a relative of Mathews's wife. Tr. at 716-18. One hundred twenty-four calls were placed from J and J to Burr Street Auto. Tr. at 718.
18
On April 12, 1989, the FBI seized a second car it believed belonged to Mathews at his brother's home. Tr. at 697-98. This car contained a renewed chauffeur's license in Lockhart's name dated September 29, 1988. Tr. at 701.
II.
19
On appeal, Lockhart contends that there was insufficient evidence to support the jury's verdict that he conspired to harbor or conceal Mathews, knowing that a federal warrant had been issued for his arrest, and that he committed the substantive offense of harboring and concealing a federal fugitive. He charges that the government misrepresented facts in its response to his post-trial motion for acquittal. Lockhart also argues that newly discovered evidence and Brady violations require a new trial. We shall discuss each claim in turn.
20
In order to " 'prove that a defendant was a member of a conspiracy, the government must present sufficient evidence to demonstrate that the defendant knew of the conspiracy and that he intended to join and associate himself with its criminal purpose.' " United States v. Morrison, 946 F.2d 484, 491 (7th Cir.1991) (quoting United States v. Auerbach, 913 F.2d 407, 414-15 (7th Cir.1990). To prove the second count--that Lockhart committed the substantive offense of concealing or harboring Mathews in violation of § 1071, the government had to establish three facts: that Lockhart knew that a federal warrant had been issued for Mathews's arrest; that Lockhart harbored or concealed Mathews; and, that Lockhart intended to prevent Mathews's discovery and arrest. United States v. Udey, 748 F.2d 1231, 1235-36 (8th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3477, 87 L.Ed.2d 613 (1985) (citing United States v. Hash, 688 F.2d 49, 52 (8th Cir.1982)). See also United States v. Silva, 745 F.2d 840, 848 (4th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1404, 84 L.Ed.2d 791 (1985). We must determine then, whether any rational trier of fact could have concluded that Lockhart is guilty of the crimes charged beyond a reasonable doubt. United States v. Durrive, 902 F.2d 1221, 1225 (7th Cir.1990).
21
The first element of the substantive offense, knowledge of the warrant, may be proven by either direct evidence or inference. United States v. Gros, 824 F.2d 1487, 1496 (6th Cir.1987). See also Silva, 745 F.2d at 848; United States v. Hogg, 670 F.2d 1358 (4th Cir.1982); United States v. Giampa, 290 F.2d 83, 84 (2d Cir.1961). In this case, Lockhart told Agent Becker that he knew Mathews was a fugitive. Tr. at 679. Moreover, the jury could infer that Lockhart knew of the warrant based on evidence presented by the government: Lockhart attempted to draw the FBI away from Millspaugh's home; Lockhart arranged for Mathews to stay in a trailer at Jasper Auto Parts and at J and J; Lockhart helped Mathews establish and maintain an alias; and Lockhart met with the FBI to negotiate Mathews's surrender.
22
Some affirmative, physical action is required to "harbor or conceal" within the meaning of § 1071. "Failure to disclose a fugitive's location and giving financial assistance do not constitute harboring, but 'any physical act of providing assistance ... to aid the prisoner in avoiding detection and apprehension will make out a violation of section 1071.' " United States v. Stacey, 896 F.2d 75, 77 (5th Cir.1990) (quoting United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988)). In Stacey, the defendant closed and locked the front door of the fugitive's house. Id. at 77. Because the defendant knew the officers looking for the fugitive were driving by, locking them out was a sufficient act to support her conviction. Id. Similarly, defendants who took a fugitive wounded by the FBI to a hotel in a different city, schemed to get him medical attention without attracting suspicion, and purchased a car under a false name to use as a getaway vehicle, "harbored or concealed" within the meaning of the statute. Yarbrough, 852 F.2d at 1543.
23
By contrast, conduct such as that considered in United States v. Foy, 416 F.2d 940 (7th Cir.1969), is not sufficient to support a conviction. In Foy, the FBI searched for a fugitive in an apartment where the defendant was present. The defendant told the FBI that he had not seen the fugitive since the day before. Id. at 941. The FBI discovered the fugitive hiding on a ledge outside a window. This court considered whether the failure to disclose a fugitive's location is the type of assistance contemplated by § 1071. Id. We held that harbor and conceal "must be construed narrowly, not to include all terms of assistance. 'These are active verbs, which have the fugitive as their object.' " Id. (quoting United States v. Shapiro, 113 F.2d 891, 892 (2d Cir.1940)).
24
Without further acts of concealment, a mere false statement does not violate the statute. The statute is intended to punish acts "calculated to obstruct the efforts of the authorities to effect arrest of the fugitive...." Id. Foy distinguished cases where the defendant commits affirmative acts to prevent the arrest of the fugitive. For example, in Stamps v. United States, 387 F.2d 993 (8th Cir.1967), the defendant barred officers from his apartment, removed the fugitive to a neighbor's apartment after the officers left, and picked up the fugitive and tried to drive away. Id. Similarly, a defendant who contacted police to determine whether a fugitive was under surveillance, participated in a plan to test the surveillance, attempted to disguise the fugitive, and transported him in his car, properly was convicted of harboring and concealing under § 1071. United States v. Faul, 748 F.2d 1204 (8th Cir.1984), cert. denied, 472 U.S. 1027, 105 S.Ct. 3500, 87 L.Ed.2d 632 (1985). See also United States v. Arguelles, 594 F.2d 109, 111 (5th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979); United States v. Jensen, 561 F.2d 1297, 1300 (8th Cir.1977) (transporting a fugitive via speedboat down the Mississippi).
25
At trial, government witnesses outlined Lockhart's relationship with Mathews during the over two-year period in which Mathews was a fugitive. A review of that testimony supports the following facts: they remained business partners after Mathews became a fugitive; Lockhart helped obtain a car (the Toronado) for Mathews and let him use his own truck and trailer to transport parts, Tr. at 196-98, 151, 153, 340; Lockhart arranged for a driver's license with Mathews's alias, and gave him his own license as well; Lockhart set up the trailer in the J and J salvage yard, and told people Mathews was running from a bad marriage, Tr. at 253; Lockhart had his business partner (Snow) sign over a one-half interest in J and J Auto Parts to Mathews using the Mills alias, Tr. at 247-48; Lockhart decoyed the FBI away from Mathews's wife's house when he believed Mathews was in the house, Tr. at 649-50, 645-55, 683; and finally, he met with the FBI and attempted to arrange a surrender. These facts establish a more than sufficient basis for Lockhart's conviction on count one. Here we find far more affirmative action than a single trip in a speedboat (Jensen, 561 F.2d at 1300), or locking a single door (Stacey, 896 F.2d at 77). These facts evince a continuing commitment to shield Mathews from arrest.
26
We also believe the government has presented sufficient evidence to establish the third element of the offense, Lockhart's intent to prevent Mathews's discovery and arrest. We can conceive of no other explanation for Lockhart's behavior than that he intended to shield Mathews from arrest. Whether Lockhart was motivated by misguided friendship or his involvement in a stolen auto parts ring is irrelevant. He assisted Mathews in evading arrest.
27
These facts also prove that Lockhart joined a conspiracy to harbor Mathews. Mathews's wife and father were aware that Mathews was a fugitive, and both attempted to mislead investigating agents and to conceal Mathews's whereabouts. Tr. at 515, 570. Seal hid Mathews's Toronado in his salvage lot, and allowed him to park and live in a trailer at the lot. Tr. at 257, 267. Snow agreed to sign his interest in J and J over to Mathews using the alias, and to allow Mathews to stay in a trailer at J and J. Tr. at 253, 247-48.
28
Based on this evidence, the jury could infer that a conspiracy to conceal Mathews from the FBI existed. "[W]hen the sufficiency of the evidence to connect a particular defendant to a conspiracy is challenged on appeal, 'substantial evidence' should be the test...." United States v. Kimmons, 917 F.2d 1011, 1015 (7th Cir.1990). Here there was more than sufficient evidence that Lockhart was an active participant, if not the driving force, behind the conspiracy. He paid for telephone calls between the co-conspirators, initiated business and living arrangements for Mathews with Seal and Snow, and served as a contact between Mathews and his father.
29
We are troubled however, by the government's misrepresentations of the record in its response to Lockhart's post-trial motion for acquittal. See Government's Response to Defendant's Motion for Reconsideration of Denial of Judgment of Acquittal or in the Alternative a New Trial, Pleadings Vol. 3, Doc. No. 119 ("Response"). In its brief on appeal, the government concedes that there were inaccuracies in its response below. Appellee's Br. at 42. We have carefully reviewed the response and discovered at least thirteen mischaracterizations of the record. See, e.g., Response, at 5, 8, 10, 11, 12, 13, 16, 17, 20. These inaccuracies range in significance from mischaracterizations of testimony3 to representations of fact that do not appear in the record at all.4 We find these inaccuracies distasteful, regardless of whether they were caused by sloppy preparation or deliberate mischaracterization. We do not believe these inaccuracies taint Lockhart's conviction. Nevertheless, we feel compelled to remind the government that counsel are responsible for the veracity of the pleadings they submit. Forcing this court, as well as the trial judge, to plod through the record to check every representation of fact simply is unacceptable. The United States Attorney for the Northern District of Indiana is cautioned that any repetition of this conduct will not be tolerated.
III.
30
Lockhart also alleges that Brady violations and newly discovered evidence require a new trial. We find both contentions to be without merit, and deserving of minimal discussion.
31
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Court held that the prosecution may not suppress "evidence favorable to an accused ... where the evidence is material either to guilt or to punishment...." See also United States v. Romo, 914 F.2d 889, 898 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1078, 112 L.Ed.2d 1183 (1991). Brady requires that the defendant establish that the prosecutor knowingly suppressed material information favorable to the defense. Id. at 898. See also United States v. Jackson, 780 F.2d 1305, 1308 (7th Cir.1986). In cases where the prosecution is not using false testimony, the evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 1309-10 (citing United States v. Bagley, 473 U.S. 667, 684-86, 105 S.Ct. 3375, 3384-86, 87 L.Ed.2d 481 (1985)).
32
Lockhart contends that the government knowingly failed to reveal that one of its witnesses, Michael Lane, had a felony conviction for grand larceny. The district court found that the government did not know of the conviction, and thus did not violate Brady. District Court Order at 6, Pleadings Vol. 3, Doc. 123. Lockhart does not contest the factual finding on appeal. Therefore, as to Lane's felony conviction, Lockhart has failed to satisfy the requirements of Brady.
33
Lockhart also contends that the government's failure to provide him with the precise details of Wilbur Mathews's recantation violates Brady. On January 30, 1990, Wilbur recanted his statements to Agent Becker that he contacted his son through Lockhart. On January 31, 1990, the government informed the court and counsel of the recantation, and its decision not to call Wilbur. Lockhart made no attempt to call Wilbur to ask him about the statements or the recantation. We simply find no merit in the contention that the government was required to transcribe the recantation of a witness available to the defendant. Lockhart easily could have interviewed or called Wilbur as a witness, as he learned of the recantation before the government rested its case. As we stated in Romo, where counsel is on notice that a witness may have exculpatory information, and has an opportunity to subpoena that witness, there is no obligation for a prosecutor to seek out and provide information to a defendant. Romo, 914 F.2d at 899.
34
Lockhart also petitions for a new trial based on newly discovered evidence under Federal Rule of Criminal Procedure 33. To obtain a new trial on the basis of newly discovered evidence,
35
a defendant must show that the evidence in question (1) came to the defendant's knowledge only after trial; (2) could not have been discovered sooner through the exercise of due diligence; (3) is material, and not merely cumulative; and (4) would probably lead to an acquittal in the event of a new trial.
36
Jackson, 780 F.2d at 1312 (quoting United States v. Goodwin, 770 F.2d 631, 639 (7th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 858, 88 L.Ed.2d 897 (1986)).
37
Lockhart offers the following "new evidence":
38
* Affidvait of Wilbur Mathews recanting statements made to Agent Becker.
39
* Affidavit of David Seal pinpointing dates of storage of Toronado, denying car was being hidden, and recanting other testimony.
40
* Affidavit of James Williams (another parts dealer) refuting testimony by government witnesses that he paid Lockhart $4,500 in cash for stolen parts.
41
* Handwriting analysis of driver's licenses in Mathews's alias, and the Lockhart license and applications in Mathews's possession. Analysis shows similarities between Mathews's writing and Lockhart signature on chauffeur's license.
42
Appellant's Br. at 66-76. Lockhart has failed to satisfy the requirements for newly discovered evidence. First, we see no reason why this evidence could not have been discovered earlier through the exercise of due diligence. See Goodwin, 770 F.2d at 639. Wilbur was available to testify at trial, and Lockhart was informed before he began presenting his case that Wilbur recanted his statement to Becker. Seal and Williams testified at trial. Lockhart could have brought out any facts contained in their affidavits during cross-examination, or he could have called them as his own witnesses. Finally, Lockhart knew that the driver's licenses Mathews used to maintain his alias would be elements in the government's case. He does not contend that he did not have an opportunity until after trial to have the documents examined by a handwriting expert. Without an explanation of his failure to produce any of this available evidence at trial, Lockhart's claim that the evidence requires a new trial must fail.
43
Further, even if this evidence could not have been found sooner through the exercise of due diligence, we would affirm the district court's denial of the motion for a new trial because we do not believe that this evidence would lead to an acquittal in the event of a new trial. Id. at 639-40. The affidavits merely deny wrongdoing on the part of the testifying witness. Certainly a jury could question the veracity of such self-interested denials, and choose to believe the government's version of the events. Further, the handwriting expert's testimony does not go to a pivotal issue in the case. Whether Lockhart signed the chauffeur's license application himself, or simply allowed Mathews to use his name, does not negate the substantial amount of other evidence implicating Lockhart in the conspiracy to harbor Mathews. Thus, we refuse to reverse the district court's denial of Lockhart's motion for a new trial because Lockhart has failed to satisfy the requirements for newly discovered evidence.
IV.
44
For the foregoing reasons, the opinion of the district court is
45
AFFIRMED.
1
The Honorable Hubert L. Will, Senior Judge of the United States District Court for the Northern District of Illinois, Eastern Division, is sitting by designation
2
Fitzgerald's precise testimony was:
Q. Do you remember telling the Grand Jury on that same occasion that you sold stolen parts to Jerry Lockhart and that he knew they were stolen?
A. I might have.
Q. Might have said that?
A. Yeah.
Q. Well, were you telling the truth about that or were you lying?
A. If I said it, I guess I said it.
Q. That's not my question. My question is when you said it, were you telling the truth or were you lying?
A. Telling the truth.
Tr. at 452-53. There was a similar exchange about Fitzgerald picking up stolen parts for Lockhart. See Tr. at 454. Fitzgerald did admit freely that he delivered stolen engines for Lockhart to a business called Andy's Tires. Tr. at 456.
3
For example (the cites to the record are those provided by the government):
Response at 20: Two of Seal's employees said they saw Lockhart and Mathews together delivering stolen parts.
Record at 486: All testimony of employee 1 regarding Lockhart's delivery of stolen parts stricken after he admitted he didn't know if parts were stolen;
Record at 547-48: Employee 2 saw Lockhart only once, and he was buying a part.
Response at 17: Vaughn said Mathews and Lockhart bought the drive-in to use as a salvage lot.
Record at 220-224: Vaughn said Lockhart bought it, but Mathews was present and made some payments for Lockhart. Government assertion to witness that Mathews and Lockhart were purchasing drive-in stricken as mischaracterization.
Response at 16: Lockhart told Snow Mathews was on the run.
Record at 253: Lockhart told Snow Mathews was running "from a divorce or something."
4
For example (the cites to the record are those provided by the government, however, we have have searched the entire record without success for these assertions):
Response at 17: Fitzgerald said the drive-in location would be used as a chop shop and storehouse for stolen parts.
The government cites the Record at 436-439. There is no record of Fitzgerald making this statement.
Response at 12: Fitzgerald said Lockhart placed orders for stolen parts with Fitzgerald.
The government cites the Record at 404-463. Again, despite the lengthy cite, there is no record of Fitzgerald making this statement.
Response at 13: Lockhart admitted to Becker that he loaned an Oldsmobile to Mathews's wife so she could visit Mathews in Alabama.
Record at 682: Lockhart paid $3,500 for a truck for Mathews, and confirmed that a 1982 Oldsmobile existed, but was now hidden. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2594206/ | 325 F. Supp. 966 (1971)
Donald DIXON et al., Plaintiffs,
v.
The ATTORNEY GENERAL OF the COMMONWEALTH OF PENNSYLVANIA et al., Defendants.
Civ. No. 69-293.
United States District Court, M. D. Pennsylvania.
March 30, 1971.
Consent Decree April 22, 1971.
*967 Henry W. Sawyer, III, Philadelphia, Pa., amicus curiae.
Marvin Comisky, Philadelphia, Pa., James C. McCreight, Washington, Pa., Joseph F. Gallagher, Wilkes-Barre, Pa., guardians ad litem for plaintiffs.
Richard L. Bazelon, Professor Curtis R. Reitz, University of Pennsylvania Law School, Philadelphia, Pa., James F. McClure, McClure & McClure, Lewisburg, Pa., for plaintiffs.
Jacques H. Fox, Media, Pa., Joseph P. Work, Deputy Atty. Gen., Dept. of Justice, Harrisburg, Pa., for defendants.
Before BIGGS, Circuit Judge, and SHERIDAN and NEALON, District Judges.
OPINION
BIGGS, Circuit Judge.
As appears from our opinion in Dixon v. Attorney General of Commonwealth of Pennsylvania, 313 F. Supp. 653 (M.D. Pa.1970), the proceeding at bar is a class suit brought by the seven named plaintiffs, individually and on behalf of all inhabitants of Farview State Hospital (Farview) situated like unto them. The complaint,[1] filed July 25, 1969, alleges the unconstitutionality of the confinement at Farview of the named plaintiffs and of all persons committed to and confined at Farview on July 25, 1969 pursuant to Section 404 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S., Section 4404, after the original authority for their confinement predicated on criminal convictions or charges had terminated, within the provenance of Rule 23, Fed.R.Civ.Proc., *968 28 U.S.C.[2] While the complaint alleges there are subclasses of the class of persons just designated,[3] it is not necessary to designate or describe them here for the purposes of Rule 23.
The named plaintiffs and those situated like unto them, constituting the single class as described, were committed to Farview pursuant to Section 404 in the following manner: (a) The applications for these recommitments were not made by a relative or guardian or person standing in loco parentis to these people. (b) The applicant for recommitment was the Director of Social Services of Farview or another member of the Farview staff. (c) The applications were supported by certificates of two physicians who were members of the staff of Farview. (d) The applications were submitted to the Superintendent of Farview who "received" the persons named in the application. (e) The persons thus committed were not consulted concerning their wishes about continued confinement or given notice of the filing of the applications by the Director of Social Services or others on the staff at Farview. (f) No relative, guardian or friend was consulted by the Director of Social Services or others on the staff at Farview concerning the continued confinement of these persons. (g) The persons thus committed were not represented by counsel in the proceedings leading to their recommitments. (h) These persons had no independent psychiatric diagnosis or psychological evaluation in connection with either the decision of the Director of Social Services to apply for commitment or the certifications by physicians that they were mentally disabled and in need of care. (i) No court made a finding that these recommitted persons required inpatient care. (j) There is no period fixed by the statute after which persons committed under Section 404 must be released.
*969 In respect to Farview itself the following facts appear. The hospital is situated near Waymart, Wayne County, Pennsylvania, and Wayne County is the extreme northeastern county of the Commonwealth of Pennsylvania. It is approximately 141 auto miles from Philadelphia and approximately 340 auto miles from Pittsburgh, the two cities named being the largest in the Commonwealth. Because of these distances from Farview it is difficult for many of the inmates to maintain contact with family and friends and also for Farview to attract psychiatrists to its staff. From the time of its establishment in 1912 up to and including the present time this institution had been the one mental health facility in Pennsylvania specifically designed and designated to provide maximum security care for the criminally insane and others. No mental institution in Pennsylvania other than Farview presently accepts, on any other than a temporary basis, persons who are under criminal sentence or individuals requiring confinement under conditions of maximum security because they are or are believed to be dangerous to themselves or others.
At the time the complaint was filed the medical staff at Farview consisted of the Superintendent, who is a psychiatrist, and five physicians, none of whom had had psychiatric experience before joining the Farview staff and none of whom have attained professional recognition as a psychiatrist. At the time the complaint was filed, the remainder of the Farview staff, housekeeping personnel excepted, consisted of two psychologists, two social workers with master's degrees, and two case workers, one of whom held a bachelor's degree, one recreational therapist, five registered nurses and twelve licensed practical nurses.
At the time the answer was filed there were at Farview approximately four hundred psychiatric security aides who functioned primarily as guards, and the regimen for inmates of Farview consisted almost entirely of custodial care, the prescribing and administering of drugs, a modicum of recreation and, for a small number of inmates, assignment to jobs at Farview which were in substance housekeeping positions.
We cannot avoid the conclusion that medical-psychiatric treatment of inmates at Farview was grossly inadequate not because of lack of willingness or competency of the Superintendent, Dr. John Shovlin, or of his staff, but because of the woeful inadequacy of the funds made available by the Commonwealth of Pennsylvania or its agencies to Farview for its maintenance and staffing. It is conceded that only three per cent of the inhabitants of Farview received any therapeutic-psychiatric treatment.
Some of the evidence given at the hearing of July 22-23, 1970, concerned "Operation Baxstrom" in New York, which entailed the transfer of all inmates of the two maximum security mental hospitals in New York having backgrounds essentially similar to those of the plaintiffs in this case. Almost one thousand inmates of the two New York hospitals referred to were transferred in 1966 to various non-maximum security state mental hospitals in New York. The so-called "Baxstrom Operation" was undertaken because of the decision of the United States Supreme Court in Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966).[4] There was testimony *970 by the plaintiffs' medical witnesses that the inmates who had been transferred in the Baxstrom Operation had been considered too dangerous for transfer by the staffs of the two maximum security hospitals where they had been confined. It was feared that many patients transferred in Operation Baxstrom would create problems for the non-maximum security mental hospitals to which they were transferred. These fears were not realized. Only seven of approximately one thousand inmates transferred in the Baxstrom Operation were returned to maximum security institutions approximately one year after the transfers had taken place. The remainder of the approximately one thousand inmates transferred in Operation Baxstrom were readily integrated into the populations of the hospitals to which they were transferred. As of July, 1970, more than one-third of the Baxstrom Operation patients had been discharged from the receiving hospitals. It would appear that the judgments of the staffs at Dannemora and Matteawan were incorrect and that many of the patients did not require confinement in a maximum security institution. The plaintiffs' psychiatric witnesses in the case at bar testified that it was their considered judgment that a similar successful result could be obtained with Farview patients if they were transferred from Farview to institutions of lesser maximum security or were in some instances allowed to work at jobs outside of any mental institution. One witness for the plaintiffs is now actually engaged in useful work outside any mental institution. He had been incarcerated at Farview because of a crime of a very serious nature.
The consensus among the psychiatrists testifying for the plaintiffs, who were well qualified in the opinion of the court as experts, was to the effect that it is unnecessary to have special maximum security facilities for civil patients; that confinement in a maximum security institution is adverse to rehabilitation; and that, at worst, a comparatively small proportion of criminally insane persons should be committed to maximum security institutions such as Farview.
*971 Dr. John Shovlin, the Superintendent at Farview, whom we find well qualified as an expert, testified however that during the past year, i. e., 1969-70, the Farview staff had been augmented by eight college-level ward counselors through a federal grant running for two years. He pointed out there was a full time chaplain with pastoral training and three part time chaplains.
Shortly after the commencement of the suit at bar the Administration at Farview began the transfer of patients to other institutions of lesser maximum security or placed some of the inmates at liberty in the community. On January 8, 1971, at the time of a post-trial hearing,[5] it was agreed that only fifteen persons of the class of the plaintiffs were then present at Farview, and that one of these insisted on staying at Farview and did not desire to be transferred to any other institution or to be set at large.
Further facts must be stated in order that the record in this case may be clear. Motions by the plaintiffs for summary judgment and for interim relief were heard on March 13, 1970. As appears in 313 F. Supp. 653, these motions were denied without prejudice, the court stating there would be a final hearing on all issues, including the nature of relief in the event that the court found the commitments of the plaintiffs unconstitutional. Because substantial constitutional issues were involved the court appointed the Honorable Henry W. Sawyer, III, a distinguished member of the Bar of Pennsylvania as amicus curiae to aid the court. His services have been of great value to us. The court was also of the view that since most of the plaintiffs and the members of their class were of a disturbed mentality, there was an issue as to whether or not they could serve in a representative capacity for their class. It was decided that a guardian ad litem should be appointed.[6] The court appointed the Honorable Marvin Comisky, a distinguished Philadelphia lawyer, to serve in the capacity of guardian ad litem. His services also have been of great value to the court. Mr. Sawyer and Mr. Comisky have attended all hearings, formal or informal, since their appointment. Mr. Comisky stated to the court at the informal hearing on January 8, 1971 that he was of the opinion that guardian ad litem should be appointed for the plaintiffs in each of the three federal districts of Pennsylvania. The court agreed with the position of Mr. Comisky and accordingly revoked the order of February 9, 1970 which appointed him as guardian ad litem, so to speak, at large, and entered another order immediately thereafter designating Mr. Comisky as guardian ad litem for the plaintiffs in the Eastern District of Pennsylvania, the Honorable Joseph F. Gallagher, a member of the Bar of Pennsylvania, as guardian ad litem for plaintiffs in the Middle District of Pennsylvania, and the Honorable James C. McCreight, a member of the Bar of Pennsylvania, as guardian ad litem for plaintiffs in the Western District of Pennsylvania. The court desires to express its thanks to the two new guardians ad litem for their willingness to serve and to thank Mr. Comisky and Mr. Sawyer for their willingness to continue to aid the court in their respective capacities.
The plaintiffs contend that Section 404 is unconstitutional on its face and also as applied to plaintiffs. We agree. As indicated earlier, see note 1, supra, the constitutional challenge to Section 404 is substantial.[7] Indeed, the defendant does not contend otherwise. There is no need for abstention here even under the strict standard of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and Boyle v. Landry, *972 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971), for there are no relevant state proceedings pending.
We entertain no doubt that Section 404 of the Pennsylvania Mental Health and Mental Retardation Act of 1966 (50 P.S., Section 4404) is unconstitutional on its face when viewed in the light of such decisions as Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967), and Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). In Specht, the petitioner-defendant had been convicted of "indecent liberties" under a Colorado statute that carried a maximum sentence of ten years[8] but had not been sentenced under it. Later he was sentenced under the Colorado Sex Offenders Act[9] to an indeterminate term of from one day to life without notice and full hearing. Mr. Justice Douglas, 386 U.S. 609-610, 87 S. Ct. 1212, quoted with approval from Circuit Judge Freedman's lucid opinion in United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3 Cir. 1966), analogizing the proceedings based on the two Colorado statutes to the proceedings in Gerchman on two comparable sections of the Pennsylvania Barr-Walker Act[10] dealing with sex offenses, as follows: "`It [the Pennsylvania Barr-Walker Act proceeding permitting incarceration from one day to life] is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed. At such a hearing the requirements of due process cannot be satisfied by partial or niggardly procedural protections. A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial, including the right to confront and cross-examine the witnesses against him.'"
In the later case of Gault the defendant, fifteen years of age, was taken into custody because of lewd telephone calls. After hearings in a juvenile court, Gault, defined as a delinquent child under Ariz. Rev.Stat., Section 8-201-6(d), was committed to a state industrial school in Arizona without: "1. Notice of the charges; 2. Right to counsel; 3. Right to confrontation and cross-examination; 4. Privilege against self-incrimination; 5. Right to a transcript of the proceedings; and 6. Right to appellate review." 387 U.S. at 10, 87 S.Ct. at 1435. Juvenile delinquency proceedings were generally considered not to be in the nature of criminal prosecutions and in Gault, Arizona argued that due process protections did not apply for the proceedings were intended to help and rehabilitate a youthful offender and not to punish him; that the State was acting in substance parens patria. We are unimpressed by the parens patria argument and strong courts have not been persuaded by it. See Heryford v. Parker, 396 F.2d 393 (10 Cir. 1968), and Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).
We find Section 404 to be almost completely devoid of the due process of law required by the Fourteenth Amendment. That at least one high state tribunal takes the position that committing procedures and rules of commitment should be the same in a civil proceeding as in a criminal or quasi criminal one is demonstrated by the decision of the Court of Appeals of Kentucky in Denton v. Commonwealth, 383 S.W.2d 681 (Ky. 1964).
The issue as to whether Section 404 has been unconstitutionally applied to the plaintiffs need not detain us long. An examination of the transcript of the *973 hearing of March 13, 1970 shows that the process of "recommitment" concededly was by way of a "paper notation", without any formal hearing or process whatsoever. Counsel for the defendant stated very candidly to the court in respect to the processing of individuals for "recommitment" under Section 404 the following:
"Mr. Work: When I used the word `paper notation' Your Honor, I mean that the procedure as used, and as quite appropriately pointed out by plaintiffs in their brief and in their complaint, was a mere certification usually by two staff physicians of the facility.
"Judge Biggs: Well, was this a report by the physician or was it an oral report simply noted, or of that can't you inform us?
"Mr. Work: It was written, Your Honor, on a specific form which the Department has for a certificate, a physician's certificate.
"Judge Biggs: And that's what you mean by a `paper notation'?
"Mr. Work: Yes, which was then merely attached to the so-called Superintendent's Certificate of Acceptance and the individual was then deemed to be committed."[11]
We declare Section 404 to be unconstitutional on its face and in its application to the plaintiffs and others of their class.
The foregoing is deemed to constitute findings of fact and conclusions of law as required by Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.
ORDER
And now, this 22nd day of April, 1971, the parties having consented through their attorneys to a finding by this Court that the commitments of all members of the class of plaintiffs are invalid under the United States Constitution, and the parties having further consented through their attorneys to the relief to be provided to the members of the class of plaintiffs by defendants through a Final Order of this Court, it is hereby ordered that the following provisions of the Consent Agreement between the parties providing for relief become the Final Order and Decree of this Court:
Terms: As used in this Order, the term "facility" means any state or county establishment, hospital, clinic, institution, or other organizational unit or part thereof, except Farview State Hospital, for treatment of the mentally ill.
I. Section 404 Of The Mental Health And Mental Retardation Act Of 1966
Defendants shall cease and desist from obtaining commitments under Section 404 of the Mental Health and Mental Retardation Act of 1966, and from accepting patients who have been committed under this provision. As of the date of this Court's Order the class of plaintiffs will be closed.
II. Members Of The Class Of Plaintiffs At Facilities Or On Leave From Facilities
A. Each person will be discharged or newly committed within sixty (60) days of this Order except in cases where time extensions are authorized pursuant to ¶¶ II-D, IV-B, and IV-C. Discharge, where considered appropriate, shall take place at the earliest possible time.
B. Prior to any new commitment being sought, the receiving facility shall, for each of its patients who are members of the class of plaintiffs, if it has not already done so,
1) Evaluate such person using appropriate psychiatric, psychological and social work personnel;
2) Aid such person in contacting his nearest relative or relatives;
3) Develop a treatment program for such person, and discuss same with him and interested family.
C. No new involuntary commitment of a member of the class shall be sought without the receiving facility first exploring with the patient and interested *974 family whether a voluntary arrangement including the minimum restraint considered necessary by the facility is acceptable to the patient. This arrangement may include voluntary commitment to the facility or such informal relationships as are mutually agreeable.
D. Where no agreement can be reached between the facility and patient, and the facility determines that it will seek an involuntary commitment, the Guardian shall be informed of the treatment program developed for the patient and the minimum restraints believed necessary by the facility and reasons for this belief. Where the Guardian desires to communicate with the patient, the time limitation of ¶ II-A may be extended up to 30 additional days.
III. Involuntary Commitments
The Secretary of Public Welfare, the Commissioner of Mental Health, and the Attorney General and their representatives and successors will assure that any new involuntary proceedings for members of the present class of plaintiffs will be in accordance with the following principles:
1) The subject thereof shall be informed of his right to counsel and an attorney shall be appointed to represent him unless he can afford to retain an attorney himself.
2) The subject thereof shall be entitled to independent expert examination and assistance in preparation for the hearing, through court appointment where the subject cannot afford to retain these services. Communications between the subject and the expert described herein shall be privileged.
3) The subject thereof shall be entitled to a full hearing at which he shall have the right to present evidence in his own behalf, to subpoena witnesses and documents, and to confront and cross-examine all witnesses against him.
4) The standard for commitment and the burden of proof shall be as follows: the evidence found to be reliable by the factfinder must establish clearly, unequivocally and convincingly that the subject of the hearing requires commitment because of manifest indications that the subject poses a present threat of serious physical harm to other persons or to himself. No commitment shall authorize confinement at Farview State Hospital absent a specific finding based on a preponderance of the evidence that placement at Farview State Hospital is necessary. To support such a finding the Commonwealth shall have the burden of proving that there is no facility or part of a facility where the subject of the hearing can be committed.
5) If the court orders commitment, it shall specify the maximum period of time for which its order authorizes commitment, which in no event shall exceed six months. The court order shall permit the facility having charge of the committed person to take whatever action toward greater liberty that appears to it to be in such person's best interest without obtaining court approval, including placing such person on partial hospitalization, on outpatient care, on leave of absence, or discharging him.
6) There shall be a verbatim transcript and full record made of the commitment proceedings, and any member of the class committed pursuant to these proceedings shall have the right to state appellate court review, including provision for assistance of counsel and record and transcript without cost if he is unable to pay the cost thereof. Any person committed will be advised of his rights with respect to appeal by the court at the time of commitment.
IV. Members Of The Class Of Plaintiffs At Farview State Hospital
A. The Guardian shall be notified of any member of the class of plaintiffs who wishes to remain at Farview State Hospital. If the Guardian believes that this person understands the decision he is making the Guardian shall certify that he has no objection to such person's remaining at Farview State Hospital. Such person shall be allowed to become a voluntary commitment.
*975 B. Apart from the preceding provision, and except as provided below, members of the class of plaintiffs still at Farview State Hospital shall be transferred within forty-five (45) days from Farview State Hospital to a facility. The receiving facility shall be selected on the bases of proximity to the patient's closest family and of the patient's county of residence at the time of commitment, unless another facility would be more appropriate for treatment or unless it appears that the patient can only be placed outside Farview State Hospital at another facility. Each member of the class transferred under this provision will come under the provisions of Section II of this Order, and the time limitations of that Section shall become effective as of the date of transfer.
C. In exceptional cases, where the Commissioner of Mental Health and Mental Retardation maintains that a member of the class of plaintiffs at Farview State Hospital cannot, for the purposes of diagnostic evaluation, be placed in any facility, the Commissioner shall report fully to the Guardian as to the reasons for this conclusion in each instance. If no agreement can be reached between the Commissioner and the Guardian, a hearing shall be held before one judge of this Court in which the Commissioner shall have the burden of proving to the Court that the particular member of the class cannot be placed in any facility for purposes of diagnostic evaluation. The record of the hearing held before this three-judge Court on July 22 and 23, 1970, may be incorporated in such a proceeding on the motion of either party, and defendants shall provide funds for the Guardian to retain counsel and in addition expert assistance of the Guardian's choice to evaluate the patient as fully as possible and otherwise assist in preparation for the hearing. All costs, including fees for counsel and expert, shall be determined by the Judge before whom the hearing takes place at the conclusion of the hearing and charged to the Commonwealth. If the patient is transferred by order of the Court, he shall come within the provisions of Section II of this Order with a suitable extension of time if necessary. In the event that the Court orders that a member of the class of plaintiffs not be transferred from Farview State Hospital, or the Guardian agrees that a member not be transferred, and the patient does not agree to a voluntary commitment, involuntary commitment proceedings shall be in accordance with Section III of this Order and shall take place in the patient's county of residence within forty-five (45) days of the Court's order or Guardian's agreement.
V. Transfer Back To Fairview
No member of the class of plaintiffs transferred from Farview State Hospital shall be returned to Farview State Hospital prior to a new commitment being obtained.
VI. Protection Of Guardian From Civil Liability
The Guardian shall not be subject to civil litigation or liability, in any form, for any action or inaction in the discharge of his duties or functions as Guardian, except that any party in interest may at any time petition to have the Guardian substituted, removed, or the Guardianship terminated.
VII. Reports On Disposition Of Members Of The Class Of Plaintiffs
The parties agree that they shall attempt to provide final relief for all members of the class of plaintiffs in accordance with this Order as expeditiously as possible. The Commissioner of Mental Health shall make a report on disposition of members of the class to the Court and Guardian ninety (90) days from the date of this Order, and shall make a final such report one hundred and fifty (150) days from the date of this Order.
NOTES
[1] See 313 F. Supp. at 654, n. 3 cited to the text as follows: "A three-judge court was sought by the plaintiffs and ordered by the Chief Judge of this Circuit pursuant to 28 U.S.C. Section 2284(1). An examination of the authorities convinces us that the constituting of the three-judge court was within the purview of the statute for the constitutional issues posed do not seem to be `insubstantial' in the sense of being plainly frivolous or to be patently meritorious. See and compare Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965), and Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962)."
[2] Section 404 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S., Section 4404, provides: "Commitment on application by relative, etc.; physicians' certificates; review (a) A written application for commitment to a facility may be made in the interest of any person who appears to be mentally disabled and in need of care. It may be made by a relative, guardian, friend, individual standing in loco parentis to the person to be committed, or by the executive officer or an authorized agent of a governmental or recognized nonprofit health or welfare organization or agency or any responsible person.
"(b) Such application shall be accompanied by the certificates of two physicians who have examined the person whose commitment is sought, within one week of the date of the certificates, and who have found that, in their opinion, such person is mentally disabled and in need of care. In the case of a mentally retarded person, the physicians' certification shall be accompanied by the report of a psychologist. No person shall be committed hereunder if any certificate is dated more than thirty days prior to the date of commitment, except that if the mental disability consists of mental retardation, the certificates may be dated not more than three months prior to the date of commitment. The application, certificates and the report, if any, shall be signed and sworn to or affirmed.
"(c) The director may receive the person named in the application and detain him until discharge in accordance with the provisions of this act. When application is made by any person other than a relative or guardian, the director upon reception of the person named in the application shall notify the appropriate relative or guardian of such person of the commitment.
"(d) Every commitment made under this section except those to the Veterans Administration or other agency of the United States Government, shall be reviewed at least annually by a committee appointed by the director from the professional staff of the facility wherein the person is detained, to determine whether continued care and commitment is necessary. Said committee shall make written recommendations to the director which shall be filed at the facility, and be open to inspection and review by the department, and such other persons as the secretary, by regulation, may permit."
[3] See also Requests for Findings of Fact and Conclusions of Law filed by the plaintiffs, in particular Paragraph "C", "Commitment under Section 404," p. 5. The defendants have indicated that they did not wish to file Requests and have not done so.
[4] In this case, decided February 23, 1966, Mr. Chief Justice Warren delivered the opinion of the Court and stated at 108, 86 S. Ct. at 761: "Petitioner, Johnnie K. Baxstrom, was convicted of second degree assault in April 1959 and was sentenced to a term of two and one-half to three years in a New York prison. On June 1, 1961, he was certified as insane by a prison physician. He was then transferred from prison to Dannemora State Hospital [Dannemora], an institution [of maximum security] under the jurisdiction and control of the New York Department of Correction and used for the purpose of confining and caring for male prisoners declared mentally ill while serving a criminal sentence. In November 1961, the director of Dannemora filed a petition in the Surrogate's Court of Clinton County stating that Baxstrom's penal sentence was about to terminate and requesting that he be civilly committed pursuant to § 384 of the New York Correction Law." The Chief Justice next pointed out that the Surrogate of Clinton County, New York, had signed a certificate stating that Baxstrom might "`require mental care and treatment'" in an institution for the mentally ill and Baxstrom's confinement at Dannemora continued and was purposed to do so indefinitely. He sought relief by state habeas corpus but the Court of Appeals of New York found in substance that the Department of Mental Hygiene, under Section 384 of the New York Correction Law, could determine Baxstrom's destiny. Mr. Chief Justice Warren stated at 110-111, 86 S. Ct. at 762: "Section 384 of the New York Correction Law prescribes the procedure for civil commitment upon the expiration of the prison term of a mentally ill person confined in Dannemora. Similar procedures are prescribed for civil commitment of all other allegedly mentally ill persons. N. Y. Mental Hygiene Law §§ 70, 72. All persons civilly committed, however, other than those committed at the expiration of a penal term, are expressly granted the right to de novo review by jury trial of the question of their sanity under § 74 of the Mental Hygiene Law." (Footnotes omitted.)
The Supreme Court held the pertinent New York statutes unconstitutional in their application to Baxstrom on the ground that they denied him equal protection of the laws guaranteed by the Fourteenth Amendment. As will appear later, we do not rely on the Equal Protection Clause in the case at bar.
Following Baxstrom a large number of inmates were transferred from Dannemora and from another state institution of maximum security, the Matteawan State Hospital, to institutions of lesser security. It has been testified to and we accept as correct the testimony that few of the persons thus transferred have had to be returned to Dannemora, Matteawan, or to any other institution of maximum security. See testimony of Doctors Hunt, Fox, Rappeport, and Bartlett; hearing of July 22-23, 1970, Tr. respectively, pages 24, 96, 222, 244. Cf. testimony of Dr. John Shovlin, Superintendent of Farview, Tr. p. 258.
[5] A court reporter was present at this informal hearing but her notes were not directed to be transcribed by court or by counsel.
[6] The reasons for the appointment of an amicus curiae and guardian ad litem are set out in Dixon, supra, 313 F. Supp. 655-656.
[7] See again 313 F.Supp., note 3 cited to the text at 654. Cf. Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1934).
[8] Colo.Rev.Stat.Ann., Section 40-2-32 (1963).
[9] Colo.Rev.Stat.Ann., Sections 39-19-1 to -10 (1963).
[10] Pa.Stat. Tit. 19, Sections 1166 and 1170 (1964).
[11] Transcript, Hearing 3/13/70, pp. 97-98. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2198267/ | 806 A.2d 1232 (2002)
In re J.W.
C.S., Appellant.
No. 99-FS-843.
District of Columbia Court of Appeals.
Argued September 10, 2002.
Decided September 26, 2002.
Lauren S. Kahn, McLean, VA, appointed by the court, for appellant C.S.
*1233 Sheila Kaplan, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel at the time, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee District of Columbia.
Before FARRELL, REID and GLICKMAN, Associate Judges.
GLICKMAN, Associate Judge:
This is an appeal from an order denying visitation. C.S. contends that the trial court abused its discretion in denying him the right to visit his putative son, J.W., without first holding an evidentiary hearing. C.S. also claims that the court erred in failing to grant him custody of J.W. We affirm the court's order.
I.
J.W. and his siblings were committed to the custody of the Department of Human Services in September 1996 after the court found them to be neglected in accordance with a stipulation signed by their mother. C.S. was not notified of the neglect proceeding and did not participate in it. Over two years later, at a review hearing in April 1999, C.S. appeared before the court for the first time and expressed a desire to "see what I can do to get custody of J.[W.] and take him under my care." C.S. represented that he had been living in New Orleans and had just learned that his children J.W. and C.W. (an older brother of J.W.) were in foster care. The court appointed an attorney to represent C.S. and directed Ms. Tracy Burton, the Child and Family Services social worker, to interview him and evaluate the situation. Stating that "a parent's interest in a child is welcome at any time," and that "it's always good to have ... as many resources as we possibly can," the court told C.S. that "we will look forward to having you ... at the remaining proceedings."
At the next review hearing, on May 28, 1999, C.S.'s counsel advised the court that C.S. "would like those children who are his with him," and "is interested in ... having some kind of supervised visits" with them. The court asked Ms. Burton if she had evaluated C.S.'s situation as a "possible placement." Ms. Burton reported that she had spoken with C.S. and his "paramour" on three occasions but still needed to schedule a home visit. The court approved C.S.'s request for visits with C.W. and then turned to the question of visitation with J.W. C.S.'s counsel reiterated that C.S. wished to visit J.W. and added that C.S. "would like to have J.[W.] placed with him." The court responded that it "ha[d] some difficulty with that last assertion," and cautioned counsel to "be careful about exactly what you are saying at this point in order to maintain credibility with the court." Nothing further was said about placing J.W. with C.S., but at his counsel's suggestion the court ordered C.S. to take a paternity test.
J.W.'s guardian ad litem, supported by his educational advocate and Ms. Burton, recommended against visits by C.S. for the time being. The guardian ad litem described J.W. as an "extremely emotional, fragile child" who could "barely handle what he's got right now," and opined that the reintroduction of his father into J.W.'s life would create a "major upheaval" at that time. The record does indicate that J.W. was struggling with severe emotional problems, and that he was just beginning to stabilize in school and at home. Noting that it had "been living with this case from the beginning," the court agreed that J.W.'s situation was "extremely precarious" and that it would not be in J.W.'s best interest to have visitation "right now." As the court commented later in the proceeding, J.W. "for [the] first time in a long time appears to be on an even keel and I'm going to keep him there for a while until *1234 I'm confident that visitation is not going to disrupt him. I have seen too many problems with the visitation." The court mentioned that J.W. would, for example, "dissolve and go to pieces" after visits with his mother. The court emphasized, however, that its denial of visitation was subject to reconsideration:
But, we can reassess and re-evaluate the situation. Ms. Burton is going to be meeting with Mr. S. You will have an opportunity to assess that home and we can then look at the next review time and see how things are going.
For his part, C.S. did not dispute that, given J.W.'s emotional frailty, visitation by C.S. would not be in his best interest at that time.
Nonetheless, following the May 28, 1999 review hearing, C.S. noted the instant appeal from the court's temporary denial of visitation. For whatever reason, that appeal has taken more than three years to come before us. The record does not disclose whether, in the interim, Ms. Burton performed the anticipated home visit or completed her evaluation of C.S. for placement purposes. Nor does the record disclose whether the court-ordered paternity test was performed, or, if so, what its results were. J.W. remains subject to the court's jurisdiction; there has been no termination of parental rights, though an adoption reportedly is being considered. We are informed that C.S. did not renew his requests for visitation and custody of J.W. at the several review hearings held in Superior Court after May 28, 1999. At oral argument, C.S.'s counsel advised that she has lost contact with her client.
II.
We have considerable doubt whether a live controversy is presented to us in this matter or whether C.S. is still interested in seeing or gaining custody of J.W. As we are not prepared to say that the appeal is moot, however, we address the claims that C.S. has asserted.
C.S.'s claim that the trial court erred in failing to grant him immediate custody of J.W. is not properly before us, because there is no final order or judgment on custody for this court to review. Under D.C.Code § 11-721(a) (2001), this court does not have jurisdiction to review issues "[s]o long as the matter remains open, unfinished or inconclusive," as it remained here. McDiarmid v. McDiarmid, 594 A.2d 79, 81 (D.C.1991). C.S. did not ask the court to award him immediate custody, and the court did not render a final ruling on that question. Rather, the suitability of placing J.W. with C.S. was still being investigated, seemingly with C.S.'s full cooperation. Although C.S. and his counsel expressed their desire for such a placement without undue delay, they acquiesced in the investigative process and did not seek an immediate decision on May 28, 1999. Nor, of course, did C.S. have an "absolute" right to be given immediate custody of J.W., whose previously adjudicated status as a neglected child C.S. did not dispute. See, e.g., In re Ko.W., 774 A.2d 296, 304 (D.C.2001) ("A parent's right to custody is not absolute. The court must act in the child's best interest and may not expose the child to serious risk of harm.") (citations omitted); D.C.Code § 16-2320(a) (2001). The trial court certainly did not abuse its discretion in deferring any custody decision pending the outcome of the investigation into C.S.'s suitability (not to mention the outcome of the paternity test ordered at the behest of C.S. himself).
We likewise are satisfied that the trial court did not abuse its discretion in denying C.S.'s request for visitation with J.W. for the time being. See Lewis v. Lewis, 637 A.2d 70, 72 (D.C.1994) (stating that court's ruling on visitation is subject to reversal only for "clear abuse of discretion"). *1235 Although a parent's right to visitation is "an important, natural and legal right," that right may be denied if it would be detrimental to the child's best interests. See In re M.D., 602 A.2d 109, 112 (D.C. 1992); D.C.Code § 16-2320(a). The trial court rested its decision to deny visitation temporarily on its well-grounded concern that J.W. was emotionally unstable and not ready to handle the intrusion into his life of his long-absent father. That decision was a reasonable one with a firm and undisputed factual predicate. See, e.g., Lewis, 637 A.2d at 72 (holding that visitation could be delayed until the child was psychologically prepared for it). We reject C.S.'s claim that the court should have held an evidentiary hearing before denying visitation. C.S. did not request an evidentiary hearing and therefore did not preserve this claim for appellate review. See Williams v. Gerstenfeld, 514 A.2d 1172, 1177 (D.C.1986). But even if the claim were properly before us, no evidentiary hearing was required becausein the absence of any question about J.W.'s emotionally fragile statethere was no material factual issue that needed to be resolved. Cf. In re Ko.W., 774 A.2d at 306 (holding that court abuses its discretion if it denies visitation without conducting an evidentiary hearing on a disputed issue of fact that is material to its decision).
For the foregoing reasons, we affirm the ruling on appeal.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2199258/ | 1 Md. App. 540 (1967)
232 A.2d 272
WAYNE ALLEN MUSGROVE
v.
STATE OF MARYLAND.
No. 40, Initial Term, 1967.
Court of Special Appeals of Maryland.
Decided August 1, 1967.
The cause was argued before ANDERSON, MORTON, and ORTH, JJ., and MACGILL, J., Chief Judge of the Fifth Judicial Circuit, specially assigned, and JENIFER, J., Associate Judge of the Third Judicial Circuit, specially assigned.
Stanley M. Dietz for appellant.
Thomas A. Garland, Assistant Attorney General, with whom were Thomas B. Finan, former Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and Ronald Willoner, Assistant State's Attorney for Prince George's County, on the brief, for appellee.
MORTON, J., delivered the majority opinion of the Court. MACGILL, J., dissents.
The Appellant was found guilty by a jury in the Circuit Court for Prince George's County on counts charging larceny of a motor vehicle in each of two indictments. He has appealed from his convictions, contending that the trial court committed error by (1) failing to grant his motions for judgments of acquittal at the conclusion of the State's case and at the conclusion of all the evidence in the case, (2) by failing to grant a mistrial *543 upon his motion when prejudicial questions were asked of him by the State's Attorney, (3) by failing to instruct the jury as to the definition and elements of the crime of motor vehicle larceny, and (4) by failing to grant his motion to suppress evidence secured as the result of an unlawful arrest and unlawful search and seizure.
On April 13, 1965, a 1961 Triumph motorcycle was stolen from Richard Sisson in Prince George's County. On May 5, 1965, a 1955 Triumph motorcycle was stolen from John Gilbert Ward in the same county. These thefts were reported to the Prince George's County police. Detective James Ross of the Prince George's County Police Department was assigned to these cases and he suspected, from certain information in his possession, that the Appellant was connected with the disappearance of the motorcycles. On July 2, 1965, while cruising in a police car, he observed the Appellant, operating a motorcycle, drive out of a parking lot onto Rhode Island Avenue without stopping. He stopped the Appellant and issued a traffic ticket to him for failing to stop upon entering a through highway. At the same time he attempted to check the Appellant's registration card against the serial numbers on the motorcycle. He was unable to check the serial number on the frame because the gas tank had been affixed in such a manner as to obliterate the numbers. In examining the serial number on the crankcase he noticed that one serial number appeared to have been crudely stamped on the crankcase and that it did not resemble a factory stamp.
Because the officer "was unable to check his registration properly", the Appellant was asked to accompany the officer to Police Headquarters. The motorcycle was stored in the garage at the headquarters and the Appellant was interviewed after being advised of his right to remain silent and of his right to counsel. He then admitted that he had altered the serial number on the motorcycle to make it correspond with the number on his registration card. He further stated that he had purchased a motorcycle frame from an individual whose name he did not know. He agreed to accompany Detective Ross to his father's home to look at other parts which he had removed from his motorcycle. These parts, with the consent of the Appellant, *544 were taken into custody. On the same day Mr. Sisson came to the police headquarters and identified certain parts of the motorcycle as having been removed from his 1961 Triumph. The Appellant was charged at that time with larceny, obliterating a serial number and with defacing a serial number. On July 12th, John Gilbert Ward came to the station and identified the engine on the cycle as his property. Thereafter the Appellant was charged with the larceny of that vehicle. The traffic charge against the Appellant was dismissed when Detective Ross failed to appear at the time set for trial.
I.
The contention of the Appellant that the trial court erred in denying his motions for judgments of acquittal is we conclude, without substance. By going forward with the evidence, the Appellant's motion at the conclusion of the State's case was withdrawn. Maryland Rule 755 b. It is a familiar principle of the law of theft in this State that the recent possession of stolen goods gives rise to a presumption that the possessor was the thief. Debinski v. State, 194 Md. 355, 360. The Court of Appeals has declined to set a yardstick to measure "recent" but has ruled that what is "recent" depends upon the circumstances in each case. Butz v. State, 221 Md. 68, 77. Under the State's theory of the case, the Appellant stole the motorcycles and disassembled them and incorporated the parts in the cycle which he was operating when apprehended. Under such circumstances we cannot say, as a matter of law, that a period in excess of two months was not recent. Although the Appellant has advanced the argument that there was no evidence produced that the two motorcycles in question were stolen, the record discloses that there was a stipulation that Mr. Sisson's motorcycle was stolen and that its market value at the time was $600.00. Mr. Ward testified that his motorcycle was missing on May 5, 1965, and later referred to it as having been "stolen". He gave his opinion that the fair market value of it at the time he discovered it missing was $300.00. The explanation given by the Appellant that he had purchased the motorcycle parts from a vaguely described third person presented an issue of credibility for the jury to resolve. Obviously, there was sufficient evidence, as a matter of law, which, if believed by the jury, *545 was sufficient to convict. Borman v. State, 1 Md. App. 276, 280; Royal v. State, 236 Md. 443, 448; Coates v. State, 232 Md. 72.
II.
The State's Attorney, on cross-examination, without objection, questioned the Appellant about a conviction for assault which he admitted. The Appellant was then asked whether or not he had been given a sentence of three months for this conviction. His reply was that he had served forty days. After further questioning, counsel approached the bench and it was developed that the Appellant had served forty days on conviction of a traffic violation. The Appellant was then again questioned in the hearing of the jury as to the conviction for which he had served the forty days. He again replied that it was for assault. We fail to find any prejudice resulting to the Appellant which would have required a mistrial. The jurors heard nothing about a motor vehicle violation and so far as they were concerned it was simply a question as to whether the Appellant had served three months or forty days on an admitted conviction of assault. There is no contention that evidence of the prior conviction for assault was not admissible for its effect on the Appellant's credibility. Burgess v. State, 161 Md. 162, 155 A. 153 (1931); Linkins v. State, 202 Md. 212, 96 A.2d 246 (1952); Taylor v. State, 226 Md. 561, 174 A.2d 573 (1961).
III.
It is true that the trial judge in his charge did not advise the jury of the elements constituting the crime of motor vehicle larceny, although he instructed as to the distinction between unauthorized use and receiving stolen goods which were charged in other counts in the indictments. There were, however, no requests for instructions and no exceptions to the charge and the matter is not properly before us for review. Maryland Rules 756 g and 1085. In any event, we are unable to perceive how prejudice resulted to the Appellant. It does not appear to be contended that the charge, so far as it extended, erroneously stated the law. The contention appears to be that absent an explanation of the elements constituting the crime charged in the first count, the jury was left in a state of confusion. We *546 find it difficult to assume that the jury was confused as to the legal effect of the words "larceny" and "stealing, taking and carrying away."
IV.
Finally, it is urged that the arrest for the traffic violation was simply a pretext to enable the arresting officer to make the search and consequent seizure for which he otherwise lacked authority in the absence of a warrant and probable cause to believe that a felony had been committed by the Appellant.
On cross-examination Detective Ross was asked: "Did you place him (the Appellant) under arrest for possession of these motor vehicle parts that you had information on?" He replied: "To answer that, if I charged him with the parts that I was told he had, no. No, sir." He was then asked: "Did you not stop him and arrest him based on that information you had?" He answered that: "I stopped Mr. Musgrove for failing to yield the right of way of a through highway." To the next question: "How long were you looking for him?," he replied: "Approximately one month and a half." He was then asked: "That is the only reason you stopped him?," and he replied: "No, sir. Because I had an opportunity at that time to inspect the motorcycle he was riding."
The United States Supreme Court, as well as a number of other courts, has stated that an arrest may not be used as a mere excuse or pretext to search for evidence. U.S. v. Lefkowitz, 285 U.S. 452; Taglavore v. U.S., 291 F.2d 262; Brinegar v. State, 262 P.2d 464 (Okla.); State v. Govan, 123 N.W.2d 110 (N. Dakota); State v. Richter, 133 N.W.2d 537 (Minn.); White v. U.S., 271 F.2d 829. See also 10 A.L.R.3d 314. It is also well established, however, that an arrest for a misdemeanor being committed in the presence of a law enforcement officer authorizes a reasonable search of the arrestee's person and property under his control. Harris v. U.S., 331 U.S. 145; Stokes v. State, 1 Md. App. 253, 256; Braxton v. State, 234 Md. 1, 6; Jenkins v. State, 232 Md. 529, 535; Knotis v. State, 237 Md. 417, 421.
In this case the evidence is that the Appellant was stopped by the officer for a traffic violation committed in the officer's presence. It was the officer's right to insure that the registration *547 card displayed to him by the Appellant indicated that he was properly in possession of the vehicle he was driving. When it became evident that the identity of the vehicle could not be established because of the obliterated serial number on the frame and the apparent tampering with the serial number on the crankcase, the officer was within his rights in requesting the Appellant to accompany him to police headquarters in order to make a proper identification of the vehicle.
The fact that the officer had been looking for the Appellant for a period of over a month as a result of his suspicion that the Appellant had stolen a motorcycle or that the legitimate stopping of the Appellant afforded him an opportunity to inspect the vehicle does not, in our opinion, alter the legality of his action in this case.
The facts in this case are not unlike those in Cornish v. State, 215 Md. 64. There, the Baltimore County Police Department suspected Cornish of illegal lottery operations. They received a bulletin from the Department of Motor Vehicles that his driver's license had been revoked, which bulletin also gave a description of Cornish and the tag number of his wife's automobile which they knew he customarily drove. "Armed with all this information, two detectives in plain clothes * * * went down to Turner Station, hoping to intercept Cornish in the act of operating on a revoked license so that they could arrest him and, in the doing, perchance uncover evidence of lottery activity." When they encountered Cornish driving his wife's car, they approached him and asked for his driver's permit. As he reached into the glove compartment to obtain the permit, the officers noticed lottery slips therein. The Court held that the arrest was valid since it was for misdemeanors committed in the officers' presence; that the lottery slips were obtained as an incident to a lawful arrest and therefore were admissible.
In Braxton v. State, supra, two police officers in plain clothes, cruising at midnight in an unmarked car, saw a truck traveling without lights. Because of their knowledge that the area in which they observed the truck had sustained a number of burglaries, the officers became suspicious that the occupants and the truck may have been involved in a burglary. The officers had followed the truck for several blocks when the occupants stopped *548 it, jumped out and ran. They were pursued, overtaken by the police and returned to the truck, whereupon the officers found a large number of typewriters which they later learned had been earlier stolen from a typewriter company.
The officers conceded that their sole purpose in stopping the truck was because of their suspicion that the occupants might have been involved in a burglary; that they did not actually pursue the truck because of the traffic violation and that they did not place a traffic charge against the occupants. Nevertheless, the admissibility of the typewriters in evidence was sustained on the ground that their discovery and seizure were incident to a lawful arrest for a misdemeanor being committed in the officers' presence. See also Jenkins v. State, supra.
The principle of law that an arrest may not be used as a pretext to search for evidence is undoubtedly sound. Fundamental principles of law, however, are oft-times easier to state than to apply. It is apparent that the applicability of this principle must be determined in the light of the facts and circumstances of each particular case.
Under the circumstances of the case at Bar, we are of the opinion that the original stopping of the Appellant for a traffic violation was legal; that the inability of the officer to identify the vehicle justified his request that the Appellant accompany him to Police Headquarters; that having determined through the Appellant's own admission that he had altered the serial numbers, the officer properly seized the vehicle and, accordingly, it was admissible as evidence in the Appellant's trial.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3151872/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-83,982-01; WR-83,982-02; WR-83,982-03; WR-83,982-04
EX PARTE MARQUIS OBRIAN WHITE, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. F12-71367-U; F12-57100-U; F12-56960-U; F12-71366-U
IN THE 291ST DISTRICT COURT FROM DALLAS COUNTY
Per curiam.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex
parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of sexual
assault of a child in two cause numbers and aggravated sexual assault of a child in two cause
numbers. He was sentenced to life imprisonment in each cause. The Fifth Court of Appeals
affirmed his convictions. White v. State, Nos. 05-13-00264-CR; 05-13-00262-CR; 05-13-00261-CR;
05-13-00263-CR (Tex. App.—Dallas Jan. 7, 2015).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
2
failed to timely notify Applicant that his convictions had been affirmed. Appellate counsel filed this
application with the trial court. Based on counsel’s sworn allegations, the trial court has entered
findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant that
his conviction had been affirmed. The trial court recommends that relief be granted. Ex parte
Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).
We find, therefore, that Applicant is entitled to the opportunity to file out-of-time petitions
for discretionary review of the judgments of the Fifth Court of Appeals in Cause Nos. 05-13-00264-
CR; 05-13-00262-CR; 05-13-00261-CR; 05-13-00263-CR that affirmed his convictions in Cause
Nos. F12-71367-U; F12-57100-U; F12-56960-U; F12-71366-U from the 291st District Court of
Dallas County. Applicant shall file his petitions for discretionary review with this Court within 30
days of the date on which this Court’s mandate issues.
Delivered: November 4, 2015
Do not publish | 01-03-2023 | 11-04-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1250198/ | 493 F.3d 82 (2007)
In re APPLIED THEORY CORPORATION, Debtor
Applied Theory Corporation, Debtor,*83 Official Committee of Unsecured Creditors of Applied Theory Corporation, Appellant,
v.
Halifax Fund, L.P., Palladin Partners I, L.P., Palladin Overseas Fund Ltd., Hatteras Partners, L.P., "filing For" DeAm Convertible Arbitrage Fund, Ltd., Spectrum Investments Partners, LP, Elliott International, L.P., Elliott Associates, L.P., Appellees.
Docket No. 06-3390-bk.
United States Court of Appeals, Second Circuit.
Argued: March 22, 2007.
Decided: July 9, 2007.
*84 Andrew I. Silfen (Leah M. Eisenberg and Heike M. Vogel, on the brief), Arent Fox, LLP, New York, NY, for Appellant.
Kirk L. Brett, New York, NY, for Appellees Halifax Fund, L.P., Palladin Partners I, L.P., Palladin Overseas Fund Ltd., Hatteras Partners, L.P. (filing for DeAm Convertible Arbitrage Fund, Ltd.), and Spectrum Investments Partners, LP (David Parker, Kleinberg, Kaplan, Wolff, & Cohen, P.C., New York, NY, on the brief, for Appellees Elliott International, L.P., and Elliott Associates, L.P.).
Before: WALKER, SACK, and B.D. PARKER, Circuit Judges.
PER CURIAM:
Appellant Official Committee of Unsecured Creditors of AppliedTheory Corporation (the "Committee"), appeals from an order of the United States District Court for the Southern District of New York (Cote, J.), affirming an order of the United States Bankruptcy Court for the Southern District of New York (Gerber, J.) denying the Committee authorization to assert a claim of equitable subordination under Section 510(c) of the Bankruptcy Code, 11 U.S.C. § 510(c), against various lenders ("Lenders") to AppliedTheory ("Debtor").
In its proposed equitable subordination claim, the Committee sought to set aside a transaction in which the Lenders, as insiders of the Debtor, are said to have used their control over AppliedTheory to transform $30 million in convertible unsecured debt obligations into secured debt to the detriment of other creditors. The Committee contended that the transaction occurred at a time when AppliedTheory was insolvent, undercapitalized, and experiencing large losses, and that consideration for the transaction was an advance of an additional $4 million, which was both inadequate and fully secured. According to the Committee, the advance was not a loan but, in reality, a risk investment that should be recharacterized as equity or subordinated to the claims of other creditors.
*85 After the Debtor's Chapter 11 Trustee investigated the claim and concluded it lacked merit, the bankruptcy court denied the Committee permission to pursue the claim. That court concluded, among other things, that, because the proposed claim was not directed toward any particularized injury suffered by any specific creditor, it could not be pursued by the Committee and constitute property of the estate. Because the Trustee had the exclusive authority to assert such a claim and doubted its merit, the court denied the Committee authority to pursue it.
The Committee appealed to the district court, which affirmed. Judge Cote concluded that, while the powers granted to creditors' committees under the Bankruptcy Code have been read to support a qualified right for such committees to sue, this right, under our decision in In re STN Enterprises, 779 F.2d 901, 904 (2d Cir. 1985), is contingent upon the Committee obtaining the approval of the bankruptcy court. In addition to court approval, the district court noted that a committee's right to sue is limited to a narrow set of situations, such as where the trustee or debtor-in-possession unreasonably failed to bring suit or where the trustee or debtor-in-possession consents. Commodore Int'l Ltd. v. Gould (In re Commodore Int'l Ltd.), 262 F.3d 96, 100 (2d Cir.2001).
In determining whether to allow the Committee to sue, the district court concluded that the bankruptcy court had properly applied the factors we identified in STN, looking to whether the claim is colorable and whether it is likely to benefit the estate. The district court also affirmed the bankruptcy court's finding that the Committee's proposed claim would not be directed toward a particularized injury suffered by any specific creditor.
DISCUSSION
On appeal, the Committee maintains that it is not obligated to seek the court's approval to bring its equitable subordination claim because STN does not apply. We exercise plenary review over a district court's affirmance of a bankruptcy court's decision. Superintendent of Ins. v. Ochs (In re First Cent. Fin. Corp.), 377 F.3d 209, 212 (2d Cir.2004). We review the bankruptcy court's conclusions of law de novo and its findings of fact for clear error. Id.
The Bankruptcy Code provides for the appointment of official committees of unsecured creditors in Chapter 11 cases, and sets forth their powers and duties. See 11 U.S.C. §§ 1102, 1103. While the Bankruptcy Code authorizes a creditors' committee to "raise and . . . appear and be heard on any issue in a case under" Chapter 11, 11 U.S.C. § 1109(b), this provision does not allow the committee "to usurp the trustee's role as a representative of the estate with respect to the initiation of certain types of litigation that belong exclusively to the estate," Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 8-9, 120 S. Ct. 1942, 147 L. Ed. 2d 1 (2000) (quoting 7 Collier on Bankruptcy ¶ 1109.05 (Lawrence P. King et al. eds., rev. 15th ed.1999)). Moreover, the Bankruptcy Code "contains no explicit authority for creditors' committees to initiate adversary proceedings." STN, 779 F.2d at 904.
In STN, we recognized that a committee has standing to bring an adversary suit in the context of a bankruptcy proceeding in only two limited instances. There, an unsecured creditors' committee sought leave from the bankruptcy court to sue the president and director of a debtor-in-possession for fraudulent conveyances. We held that "11 U.S.C. §§ 1103(c)(5) and 1109(b) imply a qualified right for creditors' *86 committees to initiate suit with the approval of the bankruptcy court" when the trustee or debtor-in-possession has unjustifiably failed to bring suit or abused its discretion in not suing to avoid a preferential transfer. STN, 779 F.2d at 904. We explained that this inquiry would involve a determination as to whether the claim the committee wishes to assert "is likely to benefit the reorganization estate." Id. at 905.
Later, in Commodore, we held that a committee may sue, with the debtor's consent and the bankruptcy court's approval, so long as the court finds that the suit is "(a) in the best interest of the bankruptcy estate, and (b) is necessary and beneficial to the fair and efficient resolution of the bankruptcy proceedings." 262 F.3d at 100 (internal quotation marks and citation omitted); cf. Glinka v. Murad (In re Housecraft Indus. USA, Inc.), 310 F.3d 64, 71 n. 7 (2d Cir.2002) (applying the same analysis to a fraudulent transfer claim brought by an individual secured creditor with the consent of a bankruptcy trustee).
Both cases doom the Committee's appeal. They make clear that claims such as those the Committee wishes to pursue depend on a judicial determination that they are likely to benefit the estate. Here both the trustee and the bankruptcy court concluded that they were not. The Committee advances no reasons for us to disturb these conclusions. Moreover, sound reasons underlie the requirement of court authorization that STN and Commodore insist upon. Reorganizations would routinely spin out of control if decisions that would commit the time and limited resources of the estate could be taken without the consent of the bankruptcy court, the entity charged by law with controlling and regulating such matters. Requiring bankruptcy court approval conditioned upon the litigation's effect on the estate helps prevent committees and individual creditors from pursuing adversary proceedings that may provide them with private benefits but result in a net loss to the entire estate. Cf. Commodore, 262 F.3d at 99 ("[I]mpartial judicial balancing of the benefits of a committee's representation better serves the bankruptcy estate.") (quoting Liberty Mutual Ins. Co. v. Official Unsecured Creditors' Comm. of Spaulding Composites Co. (In re Spaulding Composites Co.), 207 B.R. 899, 904 (9th Cir. BAP 1997)). Therefore, beyond the absence of benefit to the estate, approval to litigate is an independent justification for dismissal of this appeal.
Nevertheless, the Committee argues that STN and Commodore are inapplicable because they involved "derivative" claims brought on behalf of a trustee or debtor-in-possession, whereas its claim for equitable subordination is "direct." According to the Committee, section 510(c) indicates that an equitable subordination claim is a direct claim that can be commenced by parties in interest other than the trustee without first seeking court approval. Unlike other sections of the code, § 510(c), the Committee contends, does not provide that only the trustee may bring equitable subordination claims. See, e.g., 11 U.S.C. §§ 547, 548 (preference and fraudulent conveyance claims). Citing only out-of-circuit authority In re Vitreous Steel Prods. Co., 911 F.2d 1223 (7th Cir.1990) the Committee urges us to adopt a bright-line rule, under which equitable subordination claims "may be brought directly by a creditor, creditors, or a creditors' committee, without Bankruptcy Court approval." We are not persuaded.
In Vitreous, the Seventh Circuit held that an individual unsecured creditor had standing to assert a claim for equitable subordination, because, unlike a trustee, *87 the individual creditor seeking equitable subordination "is not acting in the interests of all the unsecured creditors" and "individual creditors have an interest in subordination separate and apart from the interests of the estate as a whole." Id. at 1231. We have observed, however, that "[a]n unsecured creditors' committee has a close identity of interests with" the debtor-in-possession insofar as the latter is obligated to pursue all actions that are in the best interest of the creditors and the estate. Commodore, 262 F.3d at 99 (quoting Spaulding, 207 B.R. at 904). It is clear to us, as it was to the district court and the bankruptcy court, that the Committee's proposed equitable subordination claim would not be directed toward any particularized injury suffered by any creditor. The Committee has demonstrated no interest of its own in subordination separate and apart from the interests of the estate as a whole, and has failed to demonstrate why it should be permitted to step into the shoes of the trustee. Cf. St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 700-03 (2d Cir.1989).
In any event, regardless of how the Committee characterizes it, any equitable subordination claim brought by the Committee would allege harm to the Debtor generally and would seek to subordinate the Lenders to other creditors. Since the Committee is not itself a creditor, it does not have any rights held by any creditor to assert such a claim against another creditor. In other words, the Committee has not sustained an injury for which a "direct" claim might otherwise be available.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8692213/ | MEMORANDUM
EDUARDO C. ROBRENO, District Judge.
Before the Court is Plaintiffs Motion to Remand (doc. no. 3) and removing Defendant, Allentown Cement Company’s, Response (doc. no. 11.)
I. BACKGROUND
Plaintiff David B. Graver was diagnosed with mesothelioma on May 24, 2010. (Pl.’s Reply, doc. no. 17, at 1.) Plaintiffs, David B. Graver and his wife, Frances Graver, filed a complaint against various Defendants alleging injury due to asbestos exposure in the Philadelphia Court of Common Pleas on June 25, 2010. (Id at 1.) Plaintiffs were scheduled to commence trial in the Court of Common Pleas of Philadelphia County on April 18, 2011, as part of a trial group with other similarly-situated plaintiffs. However, Defendant Allentown Cement Company (“Defendant”) filed a Notice of Removal in the instant case on the same day. (See doc. no. 1.)
*338Defendant’s Notice of Removal avers that there is complete diversity between the parties; Plaintiffs are citizens of Pennsylvania and no remaining Defendant is subject to personal jurisdiction in Pennsylvania. (Def.’s Removal, doc. no. 1, at 3.) Defendant argues that the case became diverse, and therefore removable, on April 11, 2011,1 when Philadelphia Court of Common Pleas Judge Sandra Mazer Moss granted summary judgment in favor of Crown Cork & Seal, the last remaining Pennsylvania Defendant in the case. (Pl.’s Mot. to Remand, doc. no. 3, at 3.).2 Alternatively, Defendant argues that the Pennsylvania Defendants were fraudulently joined. Defendant avers that it filed a timely notice of removal pursuant to 28 U.S.C. § 1446(b), as it was filed within thirty days “from which it may first be ascertained that the case is one which is or has become removable” and was filed within a year of the commencement of the action.3
Plaintiffs respond that the case did not become removable on April 11, 2011, because only a voluntary dismissal of a non-diverse defendant causes a case to become removable. Plaintiffs note that they opposed Defendant Crown Cork & Seal’s motion for summary judgment and “resisted any attempt” to dismiss it from the case. (Id.) Plaintiffs request immediate remand,4 costs and fees in the amount of $100,000 and sanctions, as Plaintiffs allege that there was no legitimate basis for Defendant Allentown Cement Company’s removal. (Id. at 2.) Plaintiffs deny that Defendant Crown Cork & Seal was fraudulently joined.
II. ANALYSIS
A. The Voluntary Rule
1. A Majority of Courts Apply the Voluntary/Involuntary Distinction
Plaintiffs Motion to Remand avers that the instant case is not removable pursuant *339to the “voluntary/involuntary” rule (hereinafter the “voluntary rule”), which holds that an action which is nonremovable when commenced can become removable only by voluntary act of plaintiff.
Indeed, “the great weight of authority holds that [a case only becomes removable] where the non-diverse defendant is dropped as the result of some voluntary action by plaintiff.” American Dredging Co. v. Atlantic Sea Con. Ltd., 637 F.Supp. 179, 181 (D.N.J.1986) (emphasis added). The purpose of the voluntary rule is twofold:
First, it contribute^] to judicial economy, because after an involuntary removal, the plaintiff may appeal the dismissal in state court, and success on appeal would lead to the reinstatement of the non-diverse party, destroying federal jurisdiction and compelling remand to the state court. Second, it recognizes the general principle of deference to the plaintiffs choice of forum. Allowing removal only when the plaintiff voluntarily dismisses a defendant ensures that the plaintiff will not be inappropriately forced out of state court without his consent.
Greco v. Beccia, 2001 WL 121887 at *2 (M.D.Pa. Feb. 13, 2001)(quoting Pender v. Bell Asbestos Mines, Ltd., 46 F.Supp.2d 937, 940-41 (E.D.Mo.1999)).
The Third Circuit Court of Appeals has not squarely addressed the issue,5 but the “trend among the district courts in the Third Circuit, as illustrated by Greco, has been to require dismissal of a non-diverse defendant by voluntary act of the plaintiff as the basis for removal.” Rubino v. Genuardi’s Inc., 2011 WL 344081 at *6 (E.D.Pa. Jan. 31, 2011) (Baylson, J.). Indeed, all district courts in the Third Circuit to consider the issue have upheld the voluntary rule. See Greco, supra; Rubino, supra; American Dredging Co., supra; Cook v. Pep Boys-Mannie, Moe & Jack, Inc., 641 F.Supp. 43 (E.D.Pa.1985); Abels v. State Farm Fire & Cas. Co., 694 F.Supp. 140, 145 (W.D.Pa.1988). Most recently, in Rubino, the district court sua sponte inquired as to whether the involuntary dismissal of a non-diverse defendant vested the court with subject matter jurisdiction. Rubino, 2011 WL 344081 at *5. The court found that the voluntary rule precluded a finding of subject matter jurisdiction, and remanded the case. Id.
Additionally, all Circuit Court of Appeals addressing the issue have adopted the voluntary rule. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 72 (7th Cir.1992); Quinn v. Aetna Life & Casualty Co., 616 F.2d 38, 40 n. 2 (2d Cir.1980); In re: Iowa Mfg. Co. of Cedar Rapids, 747 F.2d 462 (8th Cir.1984); Self v. General Motors Corp., 588 F.2d 655 (9th Cir.1978); DeBry v. Transamerica Corp., 601 F.2d 480 (10th Cir.1979); Insinga v. LaBella, 845 F.2d 249, 252 (11th Cir.1988); see also 14B Wright & Miller § 3723 (“Federal Courts generally hold that when a plaintiff voluntarily drops from the state court action a party whose presence would defeat diversity, the case becomes removable even though diversity of citizenship did not exist when the state court action was commenced. ...”).
Defendant responds that, based on a plain reading of the statute, the voluntary rule did not survive the 1949 amendment to 28 U.S.C. § 1446(b), which, for the first *340time, allowed removal of a case not initially removable. See supra, fn. 3 for relevant text. Defendant asserts that because the statute states that a case can become removable upon “order or other paper,” the statute intends for a court order to trigger removability, regardless if it is consented to by plaintiff.
Defendants point to Lyon v. Illinois Central Railroad Company, 228 F.Supp. 810 (S.D.Miss.1964), in which the court held that the voluntary rule did not survive the 1949 amendment. The court held that, based on the plain language of the statute, Congress intended that a court order dismissing a non-diverse defendant would make the case removable. Id. at 811. On its face, this “plain reading” argument is appealing, as it does seem that the statute applies to all orders, not just those that are executed with plaintiffs consent. Nevertheless, the Fifth Circuit Court of Appeals held that the Lyon court’s “plain reading” of the statute was incorrect, as it “fails to take account of legislative history ... [and] fails to read the amendment in light of previously developed case law.” Weems v. Louis Dreyfus Corp., 380 F.2d 545, 548 (5th Cir.1967). The legislative history reveals that the amendment was meant to codify, not overturn, the well-established voluntary rule:
The second paragraph of the amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed. This is declaratory of the existing rule laid down by the decisions. (See, for example, Powers v. Chesapeake, etc., Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 [1898]).
Id. (citing H.R.Rep. No. 81-352 pt. 83 at 1268 (1949), 1949 U.S.C.C.A.N. 1254). The Fifth Circuit Court of Appeals concluded that Congress’s intent was clearly to uphold it with the 1949 amendment.6
Defendant also cites dicta from the Third Circuit Court of Appeals to the effect that a defendant should be able to “secure a dismissal” of the non-diverse defendants and then remove. Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 33 (3d Cir.1985). However, the Abels language cited regarded defendant’s invocation of the fraudulent joinder rule with respect to Doe defendants, and the Third Circuit Court of Appeals was merely stating that if it became apparent later in the litigation that the Doe defendants were fraudulently joined, Defendant would have a right to remove. Id. at 33. Plaintiffs do not dispute that fraudulent joinder is one exception to the voluntary rule, but of course dispute its applicability to the instant case.
Therefore, the overwhelming weight of authority holds that the voluntary rule survived the 1949 amendment to the removal statute, and was indeed solidified by it, and this precludes a finding of subject matter jurisdiction when the non-diverse defendant is involuntarily dismissed from the case by order of the court.
*3412. Application of the Voluntary ¡Involuntary Distinction in the Instant Case, and in MDL 875 Generally
Concerns of judicial efficiency and economy, as well as deference to plaintiffs choice of forum, are the policies which animate the voluntary rule. With over 12,000 cases currently pending in MDL 875, concerns of efficiency and economy are particularly acute for this court.
The judicial economy served by the voluntary rule is illustrated by the facts of the instant case. In the instant case, Plaintiffs’ clock for appeal of the state court’s grant of summary judgment has not yet run. If the court were to deny Plaintiffs’ Motion to Remand, the case would proceed in this court, with the inherent potential that the resources used on the case would be wasted, if it is later determined on appeal that the dismissal of Defendant Crown Cork & Seal was in error, and the court is divested of diversity jurisdiction. Multiply the potential for waste of judicial resources in the instant case by the thousands of cases pending, and one can quickly see the benefits of voluntary rule, in that it ensures the finality of diversity jurisdiction.
On the other hand, the Court is acutely aware of the potential for mischief that may occur when plaintiff exerts unchecked control over which defendants it will proceed to trial against in a given case. Particularly in the asbestos context, where literally dozens of defendants may be named in the original complaint, there are multiple opportunities for naming defendants whose joinder may defeat diversity. The Fifth Circuit Court of Appeals addressed similar concerns in Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529 (5th Cir.2006). In Crockett, plaintiff had improperly joined product liability defendants with non-diverse medical malpractice defendants. Id. at 531. The state court, under the Texas provision that mirrors Rule 20(a),7 severed the product liability and medical malpractice claims into two separate cases, after which the product liability defendants removed the case to federal court on the basis of diversity jurisdiction. Id. at 533. The Fifth Circuit Court of Appeals held that “removal on the basis on an unappealed severance, by a state court, of claims against improperly joined defendants is not subject to the [voluntary rule].” Id. Under these circumstances, the application of the “improperly joined defendant” exception to the voluntary rule adopted by Crockett mitigates the potential for diversity-denying mischief by the plaintiff.
Therefore, based on the great weight of authority preserving the voluntary rule, and in consideration of the policies underlying the rule, Plaintiffs’ Motion to Remand in the instant case will be granted.
B. Fraudulent Joinder
Defendant additionally argues that Plaintiffs’ joinder of the non-diverse Defendants in the instant case, Crown Cork & Seal and CertainTeed, was fraudulent. Defendant asserts that “the entry of Summary Judgment against CertainTeed and Crown demonstrates that both of these non-diverse parties were fraudulently joined.” (doc. no. 11, at 9.) Both defendants were dismissed because Plaintiff failed to meet the well-settled frequency, regularity, and proximity showing required by Pennsylvania law. (Id.) Defendant’s argument that because Crown Cork and Cer*342tainTeed were entitled to summary judgment means that they were fraudulently joined lacks merit.
It is well-established that plaintiffs claim must merely be “colorable” to overcome an accusation of fraudulent joinder, meaning that the claim asserted is not “wholly insubstantial and frivolous” will suffice to defeat jurisdiction. Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir.1992). This Court has previously held that “it is possible that a party is not fraudulently joined, but that the claim against that party [will] ultimately [be] dismissed for failure to state a claim upon which relief may be granted.” Id.; see Various Plaintiffs v. Various Defendants (Oil Field Cases), 673 F.Supp.2d 358, 369 (E.D.Pa.2009) (Robreno, J.) (granting Plaintiffs motion to remand because there was “some factual and legal basis” to Plaintiffs claims, notwithstanding Defendant’s potential “innocent seller” defense under Mississippi law). In the instant case, non-diverse defendants were dismissed upon a showing that they were entitled to summary judgment as a matter of law, but this does not rise to the level of unsubstantiated or frivolous claims.
III. CONCLUSION
In light of the nearly unanimous acceptance of the voluntary rule, and the inapplicability of improper or fraudulent joinder to the instant case, Plaintiffs’ Motion to Remand will be granted.
However, Plaintiffs’ request for costs and sanctions will be denied. While the authority supporting Defendant’s removal is thin, neither the Third Circuit Court of Appeals, nor this court, has ever ruled on this specific issue, and it is inaccurate to say that Defendant lacked any legitimate basis for removal, or that it was “patently unmeritorious or frivolous” under Federal Rule of Civil Procedure 11. Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988).
For the reasons set forth above, the case will be remanded. An appropriate order follows.
ORDER
AND NOW, this 16th day of May 2011, it is hereby ORDERED that Plaintiffs Emergency Motion to Remand (doc. no. 3) is GRANTED.
It is further ORDERED that the above-captioned case be remanded back to the Court of Common Pleas of Philadelphia County.
AND IT IS SO ORDERED.
. It is not clear why Defendant waited a week after the purported grounds for removability were present to remove the case. The Court accepts on the record that the delay was caused by the necessity to gain the consent of all other defendants to remove and prepare the appropriate notice, and not a strategic decision to wait until the day of trial to potentially deprive plaintiffs of their scheduled trial date. See 28 U.S.C. § 1927.
. It is undisputed that CertainTeed Corporation was a Pennsylvania Defendant in the instant case, and that CertainTeed Corporation’s Motion for Summary Judgment was granted on an earlier date. (Pl.’s Mot. to Remand, doc. no. 3. at 3); (Def.’s Resp., doc. no. 11, at 5.)
. The relevant text of the statute reads:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. 1446(b).
. Initially, Plaintiffs' Motion to Remand was styled as an emergency motion. The Court ordered a response from Defendant and scheduled a telephone conference within two (2) days of the case being removed. (See doc. no. 6.) However, following the trial judge’s denial of Plaintiffs’ motion for continuance, Plaintiffs' trial group proceeded without them and reached a verdict. (PL’s Reply, doc. no. 17, at 2, n. 3.) Plaintiffs’ Reply Brief indicates that a prompt remand may place Plaintiffs in a June or July trial group and has therefore requested an expeditious determination of the issue. (Id.)
Ironically, if Plaintiffs’ interest in a remand is motivated by the desire for an early trial date, they may commence trial in this court in thirty (30) days. See MDL 875 Procedures, www.paed.uscourts.gov/mdl875p.asp.
. Plaintiffs aver that, "[t]he only reason that the Third Circuit has not ruled on [the] voluntary!] rule is that every District Court within the Third Circuit, when faced with this issue, has remanded the case.” (Pl.’s Reply, doc. no. 17, at 4.) As decisions to remand are not reviewable on appeal, see 28 U.S.C. § 1447(d), this may indeed explain the absence of Third Circuit Court of Appeals guidance on the instant issue.
. The Third Circuit has repeatedly endorsed the primacy of the "plain meaning” rule in determining Congressional intent. See In Re Philadelphia Newspapers LLC, 418 B.R. 548, 558 (2009) (Robreno, J.), aff'd, In Re Philadelphia Newspapers LLC, 599 F.3d 298 (3d Cir.2010). However, the rule yields to other considerations when, for example, a plain meaning interpretation would lead to a result "demonstrably at odds with the intentions of the drafters.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989).
As the Fifth Circuit recognized, this appears to be the case here, as the Congressional intent evinced by the legislative history was to preserve the voluntary rule. Weems, 380 F.2d at 548.
. Rule 20(a)(2) states that Defendants may be joined in an action if: “(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” | 01-03-2023 | 11-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2196240/ | 697 N.W.2d 128 (2005)
IN RE G.F.
No. 05-0183.
Court of Appeals of Iowa.
March 31, 2005.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3151463/ | Filed 11/2/15 Guerra v. Long Beach Care Center CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PAOLO GUERRA, B257157
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC518902)
v.
LONG BEACH CARE CENTER, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Kenneth Freeman, Judge. Reversed with directions.
Magnanimo & Dean, Frank A. Magnanimo, Rebecca L. Gombos for Defendant
and Appellant.
Mahoney Law Group, Kevin Mahoney for Plaintiff and Respondent.
___________________________________________________
An employee signed an arbitration agreement, then filed a class action lawsuit
against his employer. When the employer moved to compel arbitration, the trial court
deemed the agreement unconscionable and denied the motion. We reverse. The
arbitration agreement is not unconscionable, and a single improper sentence relating to
arbitrator fees is severable.
FACTS
For 46 days, Paolo Guerra was employed at Long Beach Care Center, Inc. (LBCC)
as a laundry attendant. Guerra signed a two-page Mediation and Arbitration Agreement
(the Agreement) on the day he was hired. He and LBCC agreed to arbitrate “any disputes
[and] all claims,” including “all employment and employment related matters,”
specifically “claims regarding wages, compensation or employment benefits, and any and
all claims covered by any federal, state or local laws . . . .” The Agreement reads, “Both
parties to this contract, by entering into it, are giving up their constitutional right to have
any such dispute decide[d] in a court of law before a jury, and instead are accepting the
use of mediation and arbitration.”
One month after Guerra was hired, his attorney threatened LBCC with a class
action lawsuit. He then filed a complaint alleging that LBCC failed to: pay overtime
wages, provide meal and rest periods, keep accurate payroll records, or pay wages at the
end of employment. He asserts that LBCC’s conduct violated the Labor Code, and was
an unfair or unlawful business practice.
LBCC moved to stay the lawsuit and compel arbitration because the Agreement
covers all employment-related disputes and does not authorize class actions. LBCC
asserted that Guerra expressly agreed to arbitrate his individual claims. No exception to
arbitration applies, the Agreement is not unconscionable, and it meets legal standards for
employment arbitration agreements.
In opposition, Guerra argued that the Agreement is unconscionable and adhesive,
and some of his claims are not arbitrable. He declared that he was distracted by a training
video when given the Agreement to review and sign. He did not understand the
Agreement when he signed it.
2
THE TRIAL COURT’S RULING
The court found “no dispute that there was an agreement to arbitrate here.” It also
found that the Agreement is unconscionable. Procedural unconscionability was shown
because the Agreement was presented on a “take it or leave it” basis with no opportunity
for meaningful negotiation, and Guerra had to sign it to start work. This was oppressive.
Guerra was surprised because he was “distracted” from reviewing the Agreement, and the
Agreement does not specify any arbitration rules, identifying “California law” as the
basis for dispute resolution.
Guerra also demonstrated substantive unconscionability. The Agreement is one-
sided because it bars claimants who fail to pursue arbitration “with reasonable diligence,”
an undefined term. Other substantive provisions that are unconscionable include a one-
sided manner of selecting and paying the arbitrator; also, the equal allocation of attorney
fees and costs between the parties, unless the arbitrator rules that applicable law requires
otherwise, undercuts a prevailing employee’s right to recover fees under the Labor Code.
The court refused to sever unconscionable provisions or limit their application to
avoid an unconscionable result because there is “more than one” unlawful provision in
the Agreement. It denied LBCC’s motion. LBCC appeals.
DISCUSSION
1. Appeal and Review
The denial of LBCC’s motion to compel is appealable. (Code Civ. Proc., § 1294,
subd. (a); Mercury Ins. Group v. Superior Court (1998) 19 Cal. 4th 332, 349.) If the
extrinsic evidence is not in conflict, the trial court’s refusal to compel arbitration presents
a question of law. (Suh v. Superior Court (2010) 181 Cal. App. 4th 1504, 1511-1512;
Mercuro v. Superior Court (2002) 96 Cal. App. 4th 167, 174.) There is no conflicting
extrinsic evidence in this case. Review is de novo.
2. Unconscionability
California has “a ‘strong public policy in favor of arbitration as a speedy and
relatively inexpensive means of dispute resolution.’” (Moncharsh v. Heily & Blase
(1992) 3 Cal. 4th 1, 9; St. Agnes Medical Center v. PacifiCare of California (2003) 31
3
Cal. 4th 1187, 1204.) Consequently, the courts will indulge every intendment to give
effect to arbitration contracts. (Moncharsh, at p. 9.) Any doubts concerning the
construction of the contract, the scope of arbitrable issues, or defenses to arbitration
should be resolved in favor of arbitration. (Macaulay v. Norlander (1992) 12
Cal. App. 4th 1, 6.)
Once the party petitioning for arbitration shows the existence of an arbitration
agreement, “the court shall order the petitioner and the respondent to arbitrate the
controversy” unless there are grounds to revoke the agreement. (Code Civ. Proc.,
§ 1281.2.) The party opposing arbitration bears the burden of proving any defenses, such
as unconscionability. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development
(US), LLC (2012) 55 Cal. 4th 223, 236 (Pinnacle); Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal. 4th 951, 972.)
A party of superior bargaining strength may impose a standardized contract that
leaves the other party only the opportunity to adhere to the contract or reject it.
(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 113
(Armendariz).) Arbitration agreements imposed as a condition of employment leave no
opportunity to negotiate: most people are not in a position to refuse a job because of an
arbitration requirement. (Id. at pp. 114-115.)
Guerra was presented with multiple documents, including the Agreement, and
declares, “I was [] told that I must sign the documents in order to start work.” LBCC
does not deny telling Guerra he must sign to start work. Because the Agreement was
imposed “as a condition of employment and there was no opportunity to negotiate,” it is
adhesive. (Armendariz, supra, 24 Cal.4th at pp. 114-115.)
Adhesiveness alone does not make an arbitration contract unenforceable as a
matter of law. (McManus v. CIBC World Markets Corp. (2003) 109 Cal. App. 4th 76, 91.)
If a contract is adhesive, the court then decides whether it is unenforceable because it was
unconscionable at the time it was made. (Civ. Code, § 1670.5, subd. (a); Armendariz,
supra, 24 Cal.4th at p. 113.) “‘One common formulation of unconscionability is that it
refers to ‘“an absence of meaningful choice on the part of one of the parties together with
4
contract terms which are unreasonably favorable to the other party.’”’” (Sonic-
Calabasas A, Inc. v. Moreno (2013) 57 Cal. 4th 1109, 1133; Sanchez v. Valencia Holding
Co., LLC (2015) 61 Cal. 4th 899, 910 (Sanchez).)
A contract must be both procedurally and substantively unconscionable to be
unenforceable, though not to the same degree. “‘[A] sliding scale is invoked which
disregards the regularity of the procedural process of the contract formation, that creates
the terms, in proportion to the greater harshness or unreasonableness of the substantive
terms themselves.’ [Citations] In other words, the more substantively oppressive the
contract term, the less evidence of procedural unconscionability is required to come to the
conclusion that the term is unenforceable, and vice versa.” (Armendariz, supra, 24
Cal.4th at p. 114; Sanchez, supra, 61 Cal.4th at p. 910.)
a. Procedural Unconscionability
Procedural unconscionability focuses on oppression and surprise, due to unequal
bargaining power. (Armendariz, supra, 24 Cal.4th at p. 114; Sanchez, supra, 61 Cal.4th
at p. 910.) With respect to the element of “surprise,” the Agreement was not hidden in
the fine print of a lengthy contract. On the contrary, it is a conspicuous stand-alone
document entitled “Mediation and Arbitration Agreement.” Though he was handed other
documents (including an employee handbook, tax forms, health, safety, confidentiality
and training documents), there is no showing that Guerra was unaware of the Agreement.
Above Guerra’s signature, in boldface capital letters, is the following: “I have
been given a full opportunity to review and analyze this agreement and may have an
attorney do so. I fully and completely understand all of the terms of this agreement and
am signing it voluntarily, freely, and knowingly.” A party may expressly consent to
arbitrate by signing an agreement, and it “may be binding on a party even if the party
never actually read the clause.” (Pinnacle, supra, 55 Cal.4th at p. 236.) “‘Reasonable
diligence requires the reading of a contract before signing it. A party cannot use his own
lack of diligence to avoid an arbitration agreement,’” and is bound regardless of whether
he read it or was aware of it when the agreement was signed. (Brookwood v. Bank of
5
America (1996) 45 Cal. App. 4th 1667, 1674; 24 Hour Fitness, Inc. v. Superior Court
(1998) 66 Cal. App. 4th 1199, 1215; Pinnacle, supra, 55 Cal.4th at p. 236.)
Guerra did not declare that he failed to read the Agreement; rather, he states that “I
did not understand [the] arbitration agreement when I signed it.” If he did not understand
it, he must have read it. The element of surprise is not present.
The Agreement specifies that the arbitrator(s) “shall apply applicable federal
and/or California law. California law regarding the rules of evidence and discovery shall
apply.” The Agreement also indicates that “the arbitration shall be governed by the
California Code of Civil Procedure relating to arbitration.” The trial court found this to
be procedurally unconscionable. Given this state’s well-developed laws, we fail to see
why the Agreement is unconscionable if “California law” governs arbitrations. There is
no authority supporting the notion that state law is inadequate to the task. Indeed, if the
parties fail to specify governing procedures, then the California Arbitration Act controls,
by default. (Cruise v. Kroger Co. (2015) 233 Cal. App. 4th 390, 399-400.)
The adhesive, take-it-or-leave-it nature of the Agreement, imposed by an employer
with superior bargaining power, “is sufficient to establish some degree of procedural
unconscionability. Yet ‘a finding of procedural unconscionability does not mean that a
contract will not be enforced, but rather that courts will scrutinize the substantive terms
of the contract to ensure they are not manifestly unfair or one-sided.’” (Sanchez, supra,
61 Cal.4th at p. 915; Gentry v. Superior Court (2007) 42 Cal. 4th 443, 469.)
b. Substantive Unconscionability
An arbitration agreement may be substantively unconscionable if “overly harsh” or
“unfairly one-sided” or “unduly oppressive.” (Sanchez, supra, 61 Cal.4th at pp. 910-911;
Armendariz, supra, 24 Cal.4th at p. 114.) If the agreement is not bilateral, so that only
the employee’s claims are subject to arbitration (but not the employer’s claims), it is
unfairly one-sided. (Armendariz, at pp. 118-119.) Or, if the party imposing arbitration
mandates a post-arbitration proceeding for its own benefit, at the expense of the party
obliged to accept arbitration, the provision may be substantively unconscionable. (Little
v. Auto Stiegler, Inc. (2003) 29 Cal. 4th 1064, 1071-1072.) A party cannot avoid a
6
contractual obligation because he thinks, in retrospect, that it is unfair; “[n]ot all one-
sided contract provisions are unconscionable.” (Sanchez, at p. 911.)
Here, arbitration is mutual: both Guerra and LBCC agreed to arbitrate “all
employment and employment-related matters,” stating that “Both parties to this contract,
by entering into it, are giving up their constitutional rights to have any such dispute
decide[d] in a court of law before a jury, and instead are accepting the use of mediation
and arbitration.” (Italics added.) This is not a contract that allows the employer to sue
for damages or injunctive relief, while employees are restricted to arbitration. (See
Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal. App. 4th 74, 86-87;
Armendariz, supra, 24 Cal.4th at pp. 115-120.) The parties’ agreement is not unilateral
or unfairly one-sided.
The trial court found the Agreement substantively unfair because it requires “the
claimant” (meaning either LBCC or Guerra) to pursue arbitration claims “with reasonable
diligence.” State law gives the arbitrator the power to dismiss a dispute for failure to
proceed with reasonable diligence. (Burgess v. Kaiser Foundation Hospitals (1993) 16
Cal. App. 4th 1077, 1081.) An arbitration claimant “bears the primary responsibility of
exercising diligence in order to advance progress towards the resolution of its claim.”
(Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 980.) That the
Agreement spells out settled state law does not make it unconscionable.
Guerra asserts that the Agreement lacks mutuality because it gives LBCC “the
right to unilaterally modify” its terms. The Agreement contains an integration clause
stating that it is the parties’ “entire agreement and understanding” and any changes “must
be in writing and signed by the Facility President.” This is not a unilateral modification
clause: it means that if the parties want to change the Agreement, the only LBCC
employee with authority to consent to changes is its chief executive.
The Agreement provides that “[e]ach party shall pay for its own costs and
attorneys fees, unless an arbitrator rules that applicable law requires otherwise.” There is
no reason to believe that the arbitrator(s) would not apply the attorney fee provisions
7
contained in the Labor Code, as required by the Agreement. This is consistent with state
law. (Armendariz, supra, 24 Cal.4th at pp. 110-111.)
The trial court took issue with the selection of the arbitrator(s). If mediation fails,
“each party shall select a party arbitrator and a third neutral arbitrator shall be selected by
the arbitrators appointed by the parties.” Or, the parties may, by mutual written
agreement, choose to select a single neutral arbitrator. Guerra is entitled to participate
fully in the selection process, either by naming his own party arbitrator, or by agreeing in
writing to a neutral third party arbitrator. Guerra is not required to accept a sole
arbitrator, picked by LBCC, who is so closely identified with one of the parties as to be in
fact, if not in name, a party to the contract. (Graham v. Scissor-Tail, Inc. (1981) 28
Cal. 3d 807, 824-825.)
Payment of arbitrator’s fees was another reason cited by the trial court for
invalidating the Agreement. The Agreement states that the single arbitrator’s fees “will
be split equally between the employee and [LBCC] except hourly employees will not be
required to pay more than $500.00.” This provision is fair because $500 is not “beyond
any expense that an employee would be required to bear if the action was brought in
court.” (McManus v. CIBC World Markets Corp., supra, 109 Cal.App.4th at p. 93.) The
cost is essentially the same as filing a court case.
The Agreement requires that when multiple arbitrators are used, “Each party will
pay the fees and costs associated with their own party arbitrator.” This is the one element
of the Agreement that runs afoul of the law. “[W]hen an employer imposes mandatory
arbitration as a condition of employment, the arbitration agreement or arbitration process
cannot generally require the employee to bear any type of expense that the employee
would not be required to bear if he or she were free to bring the action in court” to ensure
that the employee will not be deterred by greater costs than the cost of litigation.
(Armendariz, supra, 24 Cal.4th at pp. 110-111.) While Guerra would have to pay $435 to
institute litigation in the Los Angeles Superior Court, he would not be required to pay for
the daily expense of having a judge.
8
The Agreement meets the requirements for a mandatory employment arbitration
agreement, save for one: (1) it provides for arbitrators named by each party, or a
mutually agreeable neutral arbitrator; (2) it provides for discovery pursuant to the Code
of Civil Procedure; (3) it requires a written award; and (4) it allows the same types of
relief that would be available in court. The only requirement that is not met is that
employees must pay arbitrator fees. (Armendariz, supra, 24 Cal.4th at p. 102.)
3. Severability
As discussed, the Agreement is adhesive because it was imposed as a condition of
employment; however, it is mutual, is not unduly oppressive, nor unfairly one-sided, nor
overly harsh. As a matter of law, we cannot say that the Agreement is “‘“unreasonably
favorable to the more powerful party.’”” (Sanchez, supra, 61 Cal.4th at p. 911.) The
only improper provision in the two-page Agreement is a single sentence relating to the
payment of fees associated with party arbitrators.
If a contract clause is unconscionable, “the court may refuse to enforce the
contract, or it may enforce the remainder of the contract without the unconscionable
clause, or it may so limit the application of any unconscionable clause as to avoid any
unconscionable result.” (Civ. Code, § 1670.5, subd. (a).) The question is whether the
contract as a whole is “permeated” by unconscionability. (Armendariz, supra, 24 Cal.4th
at p. 122.) If the purpose of the contract is “tainted with illegality” such that it cannot be
enforced, then an illegal provision within it should not be severed; but if the illegality “is
collateral to the main purpose of the contract, and the illegal provision can be extirpated
from the contract by means of severance or restriction, then such severance and
restriction are appropriate.” (Id. at p. 124.)
The Agreement in this case is not permeated by unconscionability, nor is the
purpose of contract tainted with illegality. “Accordingly, the unconscionable provision
requiring payment of the fees can be severed” from the Agreement. (McManus v. CIBC
World Markets Corp., supra, 109 Cal.App.4th at p. 102.) LBCC concedes that it is
responsible for the cost of the arbitration. We direct the removal of the sentence “Each
party will pay the fees and costs associated with their own party arbitrator” from the
9
Agreement, and instead impose the costs of the arbitration on LBCC. (Roman v.
Superior Court (2009) 172 Cal. App. 4th 1462, 1477-1478.)
4. Class Claims
The Agreement does not contain an express waiver of class claims. By the same
token, it does not expressly authorize class claims. It is silent on the issue. The parties
submitted no extrinsic evidence that they intended to arbitrate on a classwide basis. Both
sides agree that terms were never discussed when the Agreement was signed.1
Arbitration is a matter of contract and, as such, “it is a way to resolve those
disputes—but only those disputes—that the parties have agreed to submit to arbitration.”
(First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943; Garden Fresh
Restaurant Corp. v. Superior Court (2014) 231 Cal. App. 4th 678, 684.) It cannot be
presumed that the parties consented to classwide arbitration when the arbitration
agreement is silent on class actions. (Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.
(2010) 559 U.S. 662, 685; Garden Fresh, at p. 686.) The benefits of arbitration—lower
cost, efficiency, and speed—are reduced in class actions; moreover, due process concerns
arise because an award would “adjudicate the rights of absent parties and bind them, not
just the parties to the arbitration agreement,” and the decision is unreviewable. (Garden
Fresh, at pp. 686-687; Stolt-Neilsen, supra, 559 U.S. at pp. 685-686.) In short,
“[a]rbitration is poorly suited” to class actions, which interfere with the fundamental
attributes of bilateral arbitration. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S.
333 [131 S. Ct. 1740, 1752]; Garden Fresh, at p. 689.)
Absent evidence of any discussion between the parties about class actions, we
deduce their intent from the language in the Agreement. (Nelsen v. Legacy Partners
Residential, Inc. (2012) 207 Cal. App. 4th 1115, 1129.) It reads, “the ‘Facility’ and I agree
1 The trial court did not reach the issue of whether class arbitration is permissible,
after finding the Agreement unconscionable. There is no dispute that the parties did not
discuss class issues at the time of contracting. As a result, the issue is decided as a matter
of law from the language of the Agreement.
10
to mediate and arbitrate any disputes.” By its ordinary meaning, language limiting the
arbitration agreement to the employer and the employee unambiguously negates any
intention to include other employees in the arbitration and contemplates two-party—not
class—arbitration. (Id. at pp. 1130-1131; Kinecta Alternative Financial Solutions, Inc. v.
Superior Court (2012) 205 Cal. App. 4th 506, 517-519.)
Language in the Agreement that the parties intend to “bind all other parties whose
claims may arise out of or relate to the claims covered by this Agreement” must be read
in conjunction with the preceding sentence, relating to LBCC’s affiliates, subsidiaries,
partners, officers, directors, employees or agents. It cannot mean that employees who are
not parties to the Agreement (and who perhaps never signed an arbitration agreement) are
bound by the arbitration decision. It would be a patent due process violation to sweep the
claims of nonparty employees into Guerra’s dispute, without giving them any right to
select their own attorneys and arbitrators, or the opportunity to opt out of the arbitration.
The same analysis applies to contract language stating that the parties consent to the
joinder of persons who “would otherwise be a proper additional party.” Provisions in the
Agreement requiring that a claimant arbitrate in a single proceeding all claims arising
from “the same incident” does not give Guerra the right to arbitrate on behalf of other
employees, only his own wage and hour claims.
DISPOSITION
The order denying the petition to compel arbitration is reversed. The trial court is
to enter a new order dismissing the class claims and granting the motion to compel
arbitration of Guerra’s individual claims, with the proviso that the one sentence relating
to arbitrator fees and costs be removed, as described in this opinion. Long Beach Care
Center, Inc., is entitled to recover its costs on appeal from Paolo Guerra.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J. HOFFSTADT, J.
11 | 01-03-2023 | 11-02-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/267891/ | 345 F.2d 414
Kenneth D. ENGLAND and Connie J. England, Plaintiffs-Appellees,v.UNITED STATES of America, Defendant-Appellant.
No. 14727.
United States Court of Appeals Seventh Circuit.
April 29, 1965.
Louis F. Oberdorfer, Asst. Atty. Gen., I. Henry Kutz, Attorney, Tax Division, U. S. Department of Justice, Washington, D. C., Edward R. Phelps, U. S. Atty., Springfield, Ill., Meyer Rothwacks, Robert N. Anderson, Fred R. Becker, Attys., Department of Justice, Washington, D. C., Leon G. Scroggins, Asst. U. S. Atty., of counsel, for appellant.
George B. Gillespie, Louis F. Gillespie, Gillespie, Burke & Gillespie, Springfield, Ill., Hugh J. Dobbs, Stuart Dobbs, Springfield, Ill., Robert E. Gillespie, Chicago, Ill., of counsel, for appellees.
Before CASTLE, KILEY and SWYGERT, Circuit Judges.
KILEY, Circuit Judge.
1
This appeal by the Government from a judgment for a refund to plaintiffs1 of income tax poses the issue whether England, taxpayer, must include in his gross income for 1960 an amount which he was reimbursed by his employer for certain expenses incurred, prior to gaining possession of new permanent quarters, incidental to a transfer to a new post in the employer's interest; or alternatively, whether such amount, if includible in gross income, is a deductible travel or business expense. We think the district court erred in deciding this issue in favor of England.
2
The facts are undisputed. England was permanently transferred by his employer from Kansas City, Missouri, to Springfield, Illinois, where he arrived on June 19, 1960. He began then to look for a place for his family to live and on July 9, 1960 leased a house which was unavailable for occupancy until August 1, 1960, at which time his family moved in. Pursuant to its policy and regulations, the employer reimbursed England for $466.00 of his Springfield expenses incurred prior to taking possession under the lease. The major items of expense were his meals and lodging and a trip by his wife to inspect a house in Springfield.2 England did not request or wish to make the transfer, but did so at the behest of the employer.
3
The Commissioner of Internal Revenue added the amount of reimbursement to the taxpayer's gross income and assessed an additional tax of $103.00. England paid the tax under protest, and brought this suit after the Government rejected his demand for a refund.
4
We agree with the Government, contrary to the district court's view, that in view of § 61(a)'s definition of gross income as "all income from whatever source derived, including (but not limited to) the following items," the fact that the reimbursement received by England might not fall within item (1) "Compensation for services, including fees, commissions, and similar items" is not in any way controlling. Nor is the fact, emphasized by the court, that England suffered a financial loss in the transfer to Springfield controlling as to whether the reimbursement constitutes gross income. We disagree, for reasons which will be clear hereafter, with the court's conclusion that congressional intent was that England's reimbursement should be excludable.
5
Revenue Ruling 54-429, 1954 — 2 Cum.Bull. 53, interpreting § 22(a) of the Internal Revenue Code of 1939, predecessor of § 61(a) of the 1954 Code, provides that an amount received as reimbursement by an employee from an employer for the expenses of moving himself, his immediate family, his household goods and personal effects from one official station to another for permanent duty is not includible in the employee's gross income. The Ruling then specifically provides that
6
"Amounts received as allowances or reimbursements for meals and lodging of the employee and his family while awaiting permanent quarters at the new post of duty are includible in gross income of the employee."
7
We think that this ruling is a permissible interpretation of the Internal Revenue Code's definition of gross income, and a correct one. The expense of transporting an employee to a new post of duty for benefit of the employer is properly an expense of the employer, not compensation to the employee, but the costs of meals, lodgings, and expenses incidental to securing housing at the post are personal living expenses of the employee, and if they are provided by the employer, income is realized thereby. This question was resolved adversely to England in Cockrell v. Commissioner of Internal Revenue, 321 F.2d 504 (8th Cir. 1963), where the taxpayer received a per diem allowance from the employer at the new post and a special allowance to reimburse him for the cost of living in motels near the new post while attempting to find housing, scarce in the area. The Tax Court and the Eighth Circuit upheld the Commissioner's determination that the allowances were includible in the taxpayer's gross income and that they were not deductible as travel expenses while away from home.
8
Plaintiffs and the district court relied on John E. Cavanaugh, 30 T.C. 300 (1961), in support of the court's decision. The Government contends, and we agree, that that case was wrongly decided in failing to follow Rev. Rul. 54-429 and in excluding reimbursements for "extraordinary" post-arrival food and lodging expenses from gross income.
9
The district court here held that even if the amounts in question are includible in gross income, they are deductible either as ordinary and necessary business expenses under § 162(a)3 or as reimbursed travel expenses while away from home in the pursuit of a trade or business, under §§ 62(2) (A)4 and 162(a) (2).5 A taxpayer's "home," for the purposes of the reimbursed travel expense deduction, is not necessarily the place of his residence. Rather, it is the place of the taxpayer's business. In this case Springfield clearly was England's "home" after the transfer, and expenses incurred there were not "away from home." Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203 (1946); Cockrell v. Commissioner of Internal Revenue, 321 F.2d 504 (8th Cir. 1963); Kalist v. Commissioner of Internal Revenue, 321 F.2d 508 (8th Cir. 1963); Light v. Commissioner of Internal Revenue, 310 F.2d 716 (5th Cir. 1962); Andrews v. Commissioner of Internal Revenue, 179 F.2d 502 (4th Cir. 1950); Ney v. United States, 171 F.2d 449 (8th Cir. 1948); York v. Commissioner of Internal Revenue, 80 U.S.App. D.C. 63, 160 F.2d 385 (D.C. Cir. 1947); Darrell Spear Courtney, 32 T.C. 334 (1959). No deduction for those amounts is allowable under §§ 62(2) (A) and 162 (a) (2).
10
We think too that the district court's decision that these amounts were deductible as "ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business" under § 162(a) cannot be sustained. The expense of England's meals and lodging, his wife's trip, and the sale of his house were personal expenses, expressly made non-deductible by § 262. Cockrell v. Commissioner of Internal Revenue; Light v. Commissioner of Internal Revenue; York v. Commissioner of Internal Revenue; Andrews v. Commissioner of Internal Revenue, supra.
11
England relies on Walter H. Mendel, 41 T.C. 32 (1963), now on appeal before the Fourth Circuit, in support of his position that these expenses are deductible. That case, which the Government contends was wrongly decided, allowed deductions for unreimbursed expenses of transporting household goods and for hotels and meals in transit to the new post, which the Tax Court characterized as business expenses. In view of our decision that the expenses involved here are personal expenses, Mendel is not directly in point and we need not express any opinion as to its correctness.
12
The judgment is reversed and the cause remanded with instructions to dismiss the complaint.
Notes:
1
Connie J. England is also a plaintiff in this case since she and her husband filed a joint return for the taxable year in question
2
Other items included laundry and cleaning expense, boarding of taxpayer's dog and cat, and the cost of a title search, revenue stamps, newspaper advertisement, and telegram in connection with the sale of taxpayer's house in Kansas City
3
Int.Rev.Code of 1954, § 162(a). "There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * *"
4
Int.Rev.Code of 1954, § 62(2) (A). "The deductions allowed by part VI (sec. 161 and following) which consist of expenses paid or incurred by the taxpayer, in connection with the performance by him of services as an employee, under a reimbursement or other expense allowance arrangement with his employer."
5
Int.Rev.Code of 1954, § 162(a) (2). "traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business. * * *" | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/267896/ | 345 F.2d 431
UNITED STATES of America, Plaintiff-Appellee,v.James W. THOMAS, Defendant-Appellant.
No. 14735.
United States Court of Appeals Seventh Circuit.
April 20, 1965.
Rehearing Denied May 18, 1965.
Frank Oliver, Chicago, Ill., for appellant.
Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Charles H. Turner, Asst. U. S. Attys., Chicago, Ill., for appellee.
Before KNOCH, CASTLE, and SWYGERT, Circuit Judges.
KNOCH, Circuit Judge.
1
The jury found James W. Thomas, defendant-appellant, guilty of violating Title 26 U.S.Code, § 4705(a) by selling a quantity of cocaine not pursuant to a written order or official form. He was sentenced to serve seven years' imprisonment.
2
The defendant contends that he was deprived of a fair trial because the prosecutor improperly insinuated in his cross-examination of defendant and in his closing argument to the jury that defendant had been engaged in the narcotic trade for a long time, although, defendant asserts, there was no evidence to that effect.
3
Federal Narcotic Agent William Turnbou testified that defendant had sold him a quantity of cocaine (as charged in the indictment) in the presence of informant Charles Gaston on October 22, 1963. Defendant admitted making a sale on that day, but to Gaston, and denied having ever seen Agent Turnbou prior to January 13, 1964, the date of his arrest.
4
It was stipulated that the white powder involved in the transactions with which the testimony dealt did contain cocaine hydrochloride.
5
Defendant's credibility became an important issue in the trial. The Trial Court had broad discretionary powers to allow cross-examination directed to matters affecting defendant's credibility as a witness. Arnold v. United States, 7 Cir., 1925, 7 F.2d 867, 869; Lyda v. United States, 9 Cir., 1963, 321 F.2d 788, 793.
6
The Trial Judge limited the scope of cross-examination and sustained most of the defendant's objections. We do not agree that he erred in denying motions for mistrial. In the total context of the trial, the questions concerning possible previous supplies of cocaine, procedures for dilution of narcotics, and methods of sale to customers, to all of which objection was sustained, did not vitiate the entire proceeding, as defendant argues. Myres v. United States, 8 Cir., 1949, 174 F.2d 329, 338, cert. den. 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520; Chavez v. United States, 10 Cir., 1958, 258 F.2d 816, 818, cert. den. sub nom. Tenorio v. United States, 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed. 2d 577 (1959).
7
In his closing argument, the prosecutor drew certain inferences from the evidence (which the defendant feels were unwarranted) and invited the jury to draw the same conclusions.
8
Agent Turnbou testified that defendant's apartment alone of the apartments in the building had iron padlocked gates at front and back doors, that defendant reproached Mr. Gaston for bringing Agent Turnbou without prior arrangements. He testified further that defendant produced a foil package from which he sifted out ten quantities of white powder which he wrapped in separate foil packages. Several times when there was a knock at the door Agent Turnbou and Mr. Gaston were sent into another room to wait and, on their return, they observed that the number of small foil packets of powder had diminished. Defendant himself used some of the cocaine and invited Agent Turnbou to join him. Defendant showed a familiarity with narcotics parlance and exercised care in handling the money Agent Turnbou paid him, picking it up with a tissue paper.
9
When Agent Turnbou returned on January 13, 1964, he testified, the defendant refused to sell him any cocaine referring to the risk he had taken in selling any to him on the prior occasion because Agent Turnbou might be an F.B.I. man.
10
When Agent Turnbou told defendant he was under arrest, the defendant slammed the inner wooden door and reopened it to submit to arrest several minutes later. The following search of the apartment disclosed that the toilet had recently been flushed. Narcotic diluents were found in the pantry.
11
On arrest defendant was told that "we had a sale of cocaine against him" and replied "yes, I know." In his own testimony defendant admitted a 1954 conviction of selling marijuana.
12
The prosecutor could reasonably infer from this evidence that defendant was an experienced trader in narcotics and it constituted only a slight hyperbole which must have been evident to the jury when the prosecutor said that "he sold narcotics to anybody and everybody who came to his premises." It was reasonable for the prosecutor to suggest that the unusual iron gates were installed for the protection of defendant's narcotics trade and that the supply of white powder on hand from which the defendant strained out the ten small packets was contraindicative of a novice in the trade. It was equally reasonable to infer that defendant had disposed of his supply of the narcotic in the few moments he had kept Agent Turnbou waiting at the barred door on January 13, 1964.
13
Aside from the fact that many of these statements on which defendant now bases a claim of error provoked no objection at the time, we find no error in these or the other generally similar comments made. United States v. Freeman, 7 Cir., 1948, 167 F.2d 786, 791, cert. den. 335 U.S. 817, 69 S.Ct. 37, 93 L.Ed. 372; United States v. Goodman, 7 Cir., 1940, 110 F.2d 390, 394-395.
14
We believe that the defendant had a fair trial. The judgment of the District Court is affirmed.
15
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/267898/ | 345 F.2d 438
120 U.S.App.D.C. 221
David BATTLE, Appellant,v.UNITED STATES of America, Appellee.Michael F. DAVIS, Appellant,v.UNITED STATES of America, Appellee.
Nos. 18752, 18756.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 29, 1965.Decided March 11, 1965.
Mr. Edgar H. Martin, Washington, D.C. (appointed by this court), for appellant in No. 18752.
Mr. Hugh A. M. Shafer, Jr., Washington, D.C. (appointed by this court), for appellant in No. 18756.
Mr. Allan M. Palmer, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Frank Q. Nebeker and William C. Weitzel, Jr., Asst. U.S. Attys., were on the brief, for appellee.
Before FAHY, BASTIAN and WRIGHT, Circuit Judges.
PER CURIAM:
1
Appellants, indicted for robbery, 22 D.C.Code 2901, and assault with a dangerous weapon, 22 D.C.Code 502, were convicted of robbery and simple assault. They are under sentences of imprisonment for 4 to 12 years. Appellants filed a motion under Rule 41(e), Fed.R.Crim.P. to suppress certain evidence. The motion was not heard prior to trial. When the case was called for trial counsel for appellant Battle asked the court to hold a hearing on his motion before the trial began. The request was denied. The judge stated, 'if the evidence is tendered by the prosecution and then at that time I can ask the jury to withdraw and we will hear the matter.' The trial went forward. During its course and when it seemed probable the evidence sought to be suppressed would be offered, counsel again sought a hearing on its admissibility and was again rebuffed; the court summarily denied the renewed motion to suppress at this point and admitted the evidence without more.
2
The United States in its brief now before us states:
3
'On April 30, 1964, appellants filed a pretrial motion to suppress certain evidence. That motion was scheduled for a hearing before Judge Tamm on May 8, 1964, but was not reached that day. He referred the matter to the trial judge to be heard as a preliminary matter. On the day of trial the court did not follow that course nor did it hold an exclusionary hearing during the progress of the trial. A forum at some point along the way to allow appellants an opportunity to fully explore the circumstances of their arrest was required. Fed.R.Crim.P. 41(e); Peckham v. United States, 93 U.S.App.D.C. 136, 139-140, 210 F.2d 693, 697 (1953).
4
'Should this Court reject appellants other contentions the case should be remanded, without reversing the conviction, for a hearing on the motion to suppress.1 This will result in either a new trial or affirmance of the conviction. (Henry) Jackson v. United States, (118 U.S.App.D.C. 341) 336 F.2d 579 (D.C. Cir. 1964). See McLindon v. United States, 117 U.S.App.D.C. 283, 329 F.2d 238 (1964); Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108 (1963).'
5
The cases cited are illustrative of remands in various circumstances for hearings without reversal, the question of setting aside the conviction to depend upon the result of the hearing. Of those cited the Peckham case is closest in point. But, unlike the case now before us, in Peckham a hearing, albeit an incomplete one, was held and a ruling made prior to trial.
6
We think no settled rule has been established that in such a case as this a remand is always to be preferred to a reversal for failure to comply with Rule 41(e). For this court to persist indefinitely in remanding instead of reversing for such error would tend to prevent the rule from operating as intended. Cf. Nardone v. United States, 308 U.S. 338, 341-342, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The proper sequence is to comply with Rule 41(e) by a hearing before trial as the rule provides. This protects the trial from error and enables the defense at the most appropriate time to obtain a ruling on the usability by the prosecution of important evidence. In this case counsel at each opportunity sought the hearing to which his client was entitled and was unable to obtain it.
7
Moreover, the trial discloses two other serious errors: (1) Identification at nighttime of the two men who attacked the complaining witnesses on the street was the principal issue, yet defense counsel was denied the opportunity to cross-examine one of these witnesses respecting her eyesight; (2) the court's instruction to the jury went beyond permissible comment on the evidence. The court stated that 'one of the persons charged here succeeded in getting her (one of the complaining witnesses') pocketbook.' The very question to be decided by the jury was whether the person who got the pocketbook was in fact 'one of the persons charged here.' See Hardy v. United States, 118 U.S.App.D.C. 253, 335 F.2d 288 (1964).
8
Reversed and remanded.
BASTIAN, Circuit Judge (dissenting):
9
I see no ground justifying reversal. I would, as suggested by appellee, remand for a hearing on the motion to suppress.
1
Appellee had originally suggested an immediate remand of the case for such a hearing. See letter to counsel for appellants filed with the Clerk of this Court on October 8, 1964. Counsel rejected that course then and still do, pressing for reversal on this issue (Br. 28-29). The precedents however, are against them on that score. Peckham v. United States, supra; (Henry) Jackson v. United States, supra | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2198618/ | 270 Cal.App.2d 275 (1969)
TRANSIT ADS, INCORPORATED, Plaintiff and Appellant,
v.
TANNER MOTOR LIVERY, LTD., Defendant and Respondent.
Civ. No. 32316.
California Court of Appeals. Second Dist., Div. Five.
Feb. 27, 1969.
Gordon & Weinberg, Gordon, Weinberg & Gordon and Richard E. Posell for Plaintiff and Appellant.
Richard L. Crail for Defendant and Respondent.
AISO, J.
Plaintiff Transit Ads, Incorporated, a California corporation, appeals from an order setting aside an entry of default and a default judgment which plaintiff obtained against the defendant Tanner Motor Livery, Ltd., for $11,275 and $23.55 costs, in an action for breach of contract.
Upon reviewing the record and applicable rules of law, we have concluded that the order was granted in abuse of discretion and that it should be reversed.
I.
[1] "It is well settled that a motion for relief from default under Code of Civil Procedure section 473 is addressed to the sound discretion of the trial court and that its ruling thereon will not be disturbed on appeal in the absence of a clear showing of abuse of discretion." (Lynch v. Spilman (1967) 67 Cal.2d 251, 257 [62 Cal.Rptr. 12, 431 P.2d 636], and cases there cited.) The burden of showing an abuse of discretion is upon the appellant. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656 [11 Cal.Rptr. 435]; Ochinero v. Wertz (1962) 200 Cal.App.2d 533, 535 [19 Cal.Rptr. 466].)
" 'The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the *279 ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. If it be doubted whether the excuse offered is sufficient or not, or whether the defense set up is with or without merit in foro legis, when examined under those rules of law by which Judges are guided to a conclusion, the judgment of the Court below will not be disturbed. If, on the contrary, we are satisfied beyond a reasonable doubt that the Court below has come to an erroneous conclusion, the party complaining of the error is as much entitled to a reversal in a case like the present as in any other." (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 526 [190 P.2d 593], quoting from Bailey v. Taaffe (1866) 29 Cal. 422, 424 with approval.)
[2] "While this section [Code Civ. Proc., 473] is remedial and to be liberally construed [citations] the moving party must show 'mistake, inadvertence, surprise or excusable neglect.' ... [3] The burden of proof on such a motion is on the moving party who must establish his position by a preponderance of the evidence." (Luz v. Lopes (1960) 55 Cal.2d 54, 62 [10 Cal.Rptr. 161, 358 P.2d 289].)
[4] The statute itself requires that the person who seeks relief upon the theory of excusable neglect must show that the neglect was excusable. (Luz v. Lopes (1960) supra, 55 Cal.2d 54; Martin v. Taylor (1968) 267 Cal.App.2d 112, 114 [72 Cal.Rptr. 847].) The neglect to be excusable must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances. (Kooper v. King (1961) 195 Cal.App.2d 621, 626 [15 Cal.Rptr. 848]; Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) supra, 189 Cal.App.2d 653, 657; Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276 [274 P.2d 930].) Moreover, the excusable neglect must be the actual cause of the default. (Price v. Hibbs (1964) 225 Cal.App.2d 209, 217 [37 Cal.Rptr. 270]; Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) supra.)
It was held in Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 414 [230 P.2d 57], where a party asked for a continuance of trial upon her representation that she was too ill to travel across country to appear for trial, that "[i]llness of a party does not ipso facto require the granting of the motion. ... Because of the necessity for orderly, prompt and effective disposition of litigation and the loss and hardship to the *280 parties to an action ... it becomes and is a part of the bounden duty of the trial judge, in the absence of some weighty reason to the contrary, to insist upon cases being heard and determined with as great promptness as the exigencies of the case will permit." Similar considerations are present in the granting or denying of relief from default for failure to file responsive pleadings promptly.
[5] Illness of counsel which actually disables him from timely compliance with the statutory rules of procedure constitutes excusable neglect if he moves promptly for relief as soon as his disability terminates or attenuates to the extent that a reasonable man under similar conditions would take action for relief. (Schmitt v. Joe Morton Lbr. Co. (1955) 137 Cal.App.2d 403, 404 [290 P.2d 32]; cf. Arnke v. Lazzari Fuel Co. (1962) 202 Cal.App.2d 278, 282 [20 Cal.Rptr. 762].) On the other hand, it has been held that illness occurring after the time for filing answer has expired without explanation for failure to answer within the regular statutory time does not constitute excusable neglect. (Youngman v. Tonner (1890) 82 Cal. 611, 612 [23 P. 120].) If the illness is such that there was no opportunity to obtain substitute counsel, it is excusable (Van Dyke v. MacMillan (1958) 162 Cal.App.2d 594, 599 [328 P.2d 215]), but contrariwise if there is opportunity to obtain substitute counsel to prevent the default from occurring (Thomas v. Toppins (1928) 206 Cal. 18, 19 [272 P. 1042]). [fn. 1]
[6] Discretion is abused in granting relief from default if the moving party's supporting affidavit or declaration fails to set forth facts sufficient to constitute grounds for relief. (Romer, *281 O'Connor & Co. v. Huffman (1959) 171 Cal.App.2d 342, 347 [341 P.2d 62], and cases cited.) [7] Affidavits or declarations in support of such a motion may disclose inexcusable carelessness by silence as well as by facts affirmatively set forth. (Ray Kizer Constr. Co. v. Young (1968) 257 Cal.App.2d 766, 768-769 [65 Cal.Rptr. 267].) "The non- production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause." (Witkin, Cal. Evidence (2d ed., 1966) p. 1044, quoting from Shapiro v. Equitable Life Assur. Soc. (1946) 76 Cal.App.2d 75, 94 [172 P.2d 725]; cf. Rambush v. Rambush (1968) 267 Cal.App.2d 734, 747 [73 Cal.Rptr. 268].)
[8] It is also an abuse of discretion to grant relief where the supporting affidavit is devoid of any explanation for a failure to move for relief within a reasonable period of time following knowledge of the default. (Schwartz v. Smookler (1962) 202 Cal.App.2d 76, 83 [20 Cal.Rptr. 507].) [9] Unusual pressure of business by itself is not a legitimate excuse either for granting relief (Fairfield v. Ahlstrom (1962) 206 Cal.App.2d 590, 592 [24 Cal.Rptr. 70]) or for delay in seeking timely relief from default. (Martin v. Taylor (1968) supra, 267 Cal.App.2d 112, 117; Schwartz v. Smookler, supra.)
[10] The purpose of granting relief from a default judgment under section 473 of the Code of Civil Procedure is "to give to the party claiming in good faith to have a substantial defense to the action an opportunity to present it." (Nicoll v. Weldon (1900) 130 Cal. 666, 667 [63 P. 63].) [11] Case law, therefore, requires the party seeking relief to accompany his notice of motion for relief with an affidavit of merits or verified pleading which sets up a valid defense. " 'Before the trial court can be called upon to exercise its discretion in relieving from a default judgment, ... the party in default must show not only a good excuse for his default, but also, that he has a meritorious defense to the action.' " (Lynch v. Spilman (1967) supra, 67 Cal.2d 251, 256, quoting from Beard v. Beard (1940) 16 Cal.2d 645, 648 [107 P.2d 385], with approval.) Before one may seek refuge in the policy that the law favors a hearing on the merits wherever possible, it must be made to appear that a substantial defense to the action can be made. (Cf. Weitz v. Yankosky (1966) 63 Cal.2d 849, 854 [48 Cal.Rptr. 620, 409 P.2d 700].) The rule has also *282 been stated in the following language: It must be " 'made to appear prima facie that a different result would probably be reached' " (Skolsky v. Electronovision Productions, Inc. (1967) 254 Cal.App.2d 246, 252 [62 Cal.Rptr. 91]; Bethlahmy v. Customcraft Industries, Inc. (1961) 192 Cal.App.2d 308, 310 [13 Cal.Rptr. 310]) or that a different result may possibly be reached (H. A. Pulaski, Inc. v. Abbey Contractor Specialties, Inc. (1969) 268 Cal.App.2d 883, 887 [74 Cal.Rptr. 590]; see also A & S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 621 [7 Cal.Rptr. 592]) if the default judgment were set aside. It has been held that a default judgment of dismissal in favor of a defendant should not be reopened via relief under this section (Code Civ. Proc., 473) to permit the filing of an amended complaint for failure to state a cause of action. (Sunru Chang v. Carson Estate Co. (1959) 168 Cal.App.2d 110, 113, [335 P.2d 697].)
The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. [fn. 2] When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law. (Cf. Witkin, Four Years of the Rules on Appeal (1947) 35 Cal.L.Rev. 477, 507.) [12] "(T)he law does not look with favor upon setting aside defaults or judgments resulting from inexcusable inadvertence, surprise or neglect of attorneys in the performance of their duties to their clients." (People's Finance & Thrift Co. v. Phoenix Assur. Co. (1930) 104 Cal.App. 334, 336 [285 P. 857].)
II.
The undisputed facts as established by the record on appeal, by the declaration of attorney Richard L. Crail (hereafter "Crail") accompanying his notice of motion for relief from default and default judgment, filed April 25, 1966, by the declaration of plaintiff's counsel, Gordon and Weinberg by Donald M. Lasser (hereafter merely "Lasser") in opposition to the grant of the motion, filed April 29, 1966, and by *283 Crail's supplemental declaration and a declaration of attorney Jack H. Faucett (hereafter "Faucett") in support of the motion, filed May 10, 1966, are as follows:
Plaintiff Transit Ads, Incorporated, filed this action against the defendant Tanner Motor Livery, Ltd. (hereafter "Tanner") on August 4, 1965, alleging a breach of contract granting plaintiff the exclusive right to place advertising within Tanner's buses for a period of three years from March 10, 1964, in that, unknown to the plaintiff, Tanner had granted such rights previously thereto to an Evelyn McKenzie covering a period which would carry through to December 31, 1964, and in that such contract prevented plaintiff from enjoying the benefits of its contract with defendant Tanner.
Tanner was served with summons and complaint on August 6, 1965.
On or about August 16, 1965, Crail called Lasser informing Lasser that he (Crail) was representing Tanner and that he desired an extension of time within which to answer the complaint. Lasser granted an extension, requesting Crail to confirm the arrangement by letter. Crail did not write, so Lasser wrote Crail on September 7, 1965, giving Crail another extension to September 20, 1965. A further extension to September 27, 1965, was granted. On October 19, 1965, Lasser wrote to Crail advising him that unless defendant's answer were filed within one week from the date Crail received the letter, a default would be entered against Tanner. Crail received the letter October 21, 1965, by certified mail.
No answer having been filed by November 15, 1965, Lasser on that date filed his request to the clerk for an entry of default. A default was entered on November 17, 1965.
About a month thereafter (on December 13, 1965) Crail called Lasser's office. Since Lasser was out of the office, Crail left a message asking Lasser to call him. Lasser returned the call on December 14, 1965. This time, Crail was not in his office. Later the same day (December 14, 1965) Crail called Lasser and informed him that he (Crail) had been very ill and that he had requested another attorney, Faucett, to prepare the answer, that he would make every effort to have the answer in Lasser's office that day or the next, and asked Lasser to agree to the entry of default being vacated. Lasser agreed to vacate the entry of default if defendant's answer were filed that date, with service of a copy upon Lasser.
Crail states, without assigning the reason therefor, that he *284 was unable to contact Faucett until the week before Christmas. Faucett declares that it was the latter part of December 1966 [sic], just before the Christmas holidays, when the file was handed to him. Crail never advised Faucett of the urgency of getting the answer drafted, served, and filed until his meeting with Faucett in February 1966.
Faucett took the file to his office, which is some distance from Crail's, and read all of the documents and papers therein. Faucett prepared a longhand draft of the answer setting up general denials to the averments of plaintiff's complaint, but he could not ascertain facts necessary to set up that which he characterizes as a proper affirmative defense.
Crail and Faucett made an appointment to get together between Christmas and New Year's to complete the drafting of the answer. Crail did not keep the appointment, advising Faucett that he was unable to honor the appointment due to his physical condition.
Another appointment was set up for a Saturday morning early in January 1966, but Crail again was unable to keep it due to the condition of his health.
Because of the pressures of his own practice, Faucett inadvertently laid aside the file until February when Faucett and Crail met to finalize the answer. It was at this meeting that Faucett was first apprised of the urgency of the matter.
Not having heard from Crail, who did not contact Lasser after the December 14, 1965, conversation until the following March 15, 1966, Lasser proved up his default on February 1, 1966. Judgment was rendered against the defendant for $11,275 and $23.55 costs on February 15, 1966, and was entered in the judgment book the following day, February 16, 1966.
Uninformed that a default judgment had already been obtained and entered, Faucett completed the answer on March 16, 1966, and then telephoned Lasser's office. Attorney Stephen M. Lachs answered and stated that Lasser was in Europe at the time. Faucett asked if they (plaintiff's counsel) would stipulate to a vacation of the entry of default and consent to the answer being filed at that time. Lachs informed Faucett that a default judgment had already been entered, but that Lasser was attempting to have the judgment modified because Lasser thought the sum awarded was insufficient, and that Lasser had filed points and authorities with the court for that purpose. Lachs informed Faucett that a note on the file *285 placed by Lasser directed that no action be taken until Lasser returned from Europe, and that Lasser was expected back around April 1, 1966.
On March 30, 1966, Lasser contacted both Crail and Faucett, both of whom asked Lasser to agree to a vacation of the default and the default judgment. Lasser indicated that he could not do so without his client's consent, but would check with his client.
On April 12, 1966, Faucett and Crail phoned Lasser to ascertain whether Lasser's client had reconsidered the matter. Lasser replied that the client would not permit a vacation of the judgment, but would be amenable to talking settlement.
Crail then filed his notice of motion for relief from default and default judgment on April 25, 1966. The declarations earlier referred to were filed by Crail, Lasser, and Faucett, respectively. On May 12, 1966, the trial court granted relief as prayed for and permitted the proposed answer to be filed and to be deemed served the same date.plaintiff appealed from that order.
No affidavit of merits was filed. The verified answer is short, two and one-fourth pages (32-line legal paper). It contains only denials, except for an affirmative defense which admits the making of the contract with plaintiff, but alleges that defendant Tanner believed that it was not under an exclusive advertising contract with anyone else except upon a month-to- month basis, whereas in fact it was under an exclusive contract running until December 31, 1964, with Evelyn McKenzie. It avers, without setting forth any other facts, that this was a mutual mistake on the part of both parties.
III.
The only valid basis for relief from default on grounds of excusable neglect is Crail's claim that he was physically disabled from compliance with the normal procedural requirements because of his illness. We, therefore, set forth his statements in this regard.
In his original declaration, Crail states: "that he was incapicatated [sic] intermittently during this period and was relying upon the statement that the plaintiff's counsel would set aside the default upon presentation of an answer and further relying upon the undersigned's belief that Mr. Faucett would file the answer being unaware at the time that he had insufficient facts to proceed therewith." *286
In his supplemental declaration, he describes the nature of his illness thusly: "My weight during the latter part of September, 1965, had reached 300 pounds, which for me was extremely overweight. This had adverse effects upon my general condition and I sought the services of a 'diet doctor' who placed me upon a rigorous diet plus extensive medication, designed to achieve fast weight reduction. The treatment was successful in this respect that I lost 60 pounds over the first sixty days of the treatment, however, the medication adversely effected [sic] my general mental, and physical condition to the extent that I was unable to properly attend to my law practice. I was absent from the office for long periods of time and was only intermittently able to go to the office. From the middle of November to the end of January I was without secretarial help and was obliged to rely on my answering service for secretarial service. During this time I was unable to keep my appointments with Mr. Faucett, who was unaware of the urgency of this matter. ... The effect of the medical treatment which I underwent was to cause me to be nauseated, dizzy, in a general weakened condition, which prevented me from doing paper work or working at a desk. The effect of the medication on my physical condition as well as my mental condition was compounded by the fact that I was under the pressure of knowing that I was not properly able to attend to my law practice, resulting in a high state of nervousness accompanied by emotional problems. As a result of the foregoing, Mr. Faucett has had to assist me in several cases during this period. Mr. Faucett's contact with Mr. Lasser's office during the month of March was in an attempt to clear up this problem which was one of several."
IV.
[13] While one's natural sympathies incline towards a sole practitioner who becomes disabled from illness, rendering him incapable of carrying on his normal practice, we are enjoined that the discretion in granting relief in this type of situation is not ex gratia. (Benjamin v. Dalmo Mfg. Co. (1948) supra, 31 Cal.2d 523, 526.) [14] We, therefore, examine the nature of the illness as described and then consider if the illness was so disabling that the neglect consisted only of acts or omissions of a kind which a reasonably prudent sole practitioner caught in similar circumstances would commit. If the neglect consisted of both excusable and inexcusable acts or omissions, was it the excusable portion of *287 the neglect or the inexcusable portion that caused the default?
Crail's declaration does not state who the diet doctor was or whether he was confined to bed at home or in any hospital. A doctor's declaration was not presented. Crail's declaration does not state whether his condition was one which was developing gradually at the time he accepted responsibility for the case, or a supervening one which developed suddenly at the end of September. The facts stated show that even before going on the diet, Crail did not think enough of Lasser's favor of an extension of time to write the letter of confirmation requested.
Crail was able to go to his office at least intermittently. He made no effort to contact his client, Tanner Motor Livery, Ltd., to inform it of his condition and to explore possibilities of its obtaining another counsel to take over the responsibility for handling the case. No showing was made that Tanner, which runs the Gray Line in Southern California, was an entity so impecunious that its financial condition would not permit its retaining another counsel if Crail were incapacitated due to illness.
Crail's declarations also disclose that he had attorney Faucett available to assist him. He sets forth no impediment to his contacting Faucett by telephone. He apparently had the ability to pull files from his office. Why did he not contact Faucett earlier, and when he did, why did he not inform Faucett of the urgency of filing the answer? No reason is given for the time lapse in contacting Faucett between December 14 and just before Christmas. Would not a reasonably prudent attorney in Crail's position have contacted either or both Lasser and Faucett periodically after his conversation with Lasser on December 14, 1965? Had Crail advised Faucett of the emergency, Faucett could have filed an answer with just denials to prevent the default. Amendments to pleadings are liberally granted and therefore such an answer could have been amended after filing. Faucett's delict in not contacting Crail due to inadvertence engendered by the pressure of his own practice, while understandable, was not excusable neglect. (Fairfield v. Ahlstrom (1962) supra, 206 Cal.App.2d 590, 592.) Even by Crail's own words, Lasser was at all times "out of courtesy to counsel ... liberal in further extending time to answer" after the grant of the first extension. Why did he not check with Faucett and then contact Lasser to explain Faucett's predicament, if, in fact, he was in a predicament over an affirmative defense? There is no showing *288 that disabling illness, and not inexcusable neglect, was the real cause for the default.
As to the timeliness of Crail and Faucett in moving for relief from default, under the circumstances of this case the trial court's implied finding that an unreasonable period of time had not elapsed from discovery of the entry of the default judgment, did not constitute an abuse of discretion.
However, the fact that no affidavit of merits was filed with the moving papers is a glaring omission, absent a verified pleading that can be treated as a substitute therefor. This does not appear to have been specifically raised by Lasser in the trial court. It is further uncertain whether plaintiff's reference in its brief to the answer filed is to call our attention to the fact that it does not constitute a showing that defendant Tanner has a bona fide defense. However, appellate courts cannot avoid noticing pleadings which have no legal validity. (Sunru Chang v. Carson Estate Co. (1959) supra, 168 Cal.App.2d 110, 113.) The answer filed in this case with the motion is tantamount to an admission of liability, and that the denials, except as to the amount of damages, are sham and frivolous. We feel that insufficient facts are alleged in the affirmative defense to support the proposition that the mistake, if any, was mutual. Furthermore, to constitute a valid defense to a contract a mistake of fact must not have been caused by the neglect of a legal duty on the part of the person claiming mistake. (Civ. Code, 1577, subd. 1; [fn. 3] Reid v. Landon (1958) 166 Cal.App.2d 476, 482 [333 P.2d 432]; Mesmer v. White (1953) 121 Cal.App.2d 665, 674 [264 P.2d 60].) No facts excusing defendant Tanner from ignorance of its pre-existing contract obligations were pleaded. There was, therefore, no prima facie showing by way of affidavit or verified pleading that a more favorable result would possibly be obtained by setting aside the default and default judgment, either as to liability or as to damages.
Considering the foregoing circumstances and the incomplete showing made by the party seeking relief from default, the granting of the motion was an abuse of discretion.
The order vacating default judgment and entry of default is reversed.
Kaus, P. J., and Reppy, J., concurred.
NOTES
[fn. 1] 1. Also cf. Smith v. Pelton Water Wheel Co. (1907) 151 Cal.394, 397 [90 P. 934]. In an action pending in Los Angeles County, the attorney in charge of the case was a San Francisco lawyer. He had associated a Los Angeles lawyer to assist him, much in the nature that Faucett came into the picture in this case, although the association apparently antedated the illness of the chief attorney. The court held the following facts set forth in an affidavit insufficient to excuse lack of diligence in moving for relief: "The only excuse given for the delay in instituting proceedings to vacate the default and judgment was that given by the senior member of the San Francisco firm to the effect that for over two months after learning of the default and judgment he was suffering from ill-health, and was not in regular attendance at his office, and could only attend to his business occasionally; that thereafter he was engaged to the utmost of his capacity in court work and other business that needed prompt attention; that his partner was not familiar with the facts and was not in the habit of handling litigation of this character, and that ever since the entry of default and judgment he had been in frequent correspondence with his associate in Los Angeles, and from time to time had explained to him that the papers for the motion were in course of preparation, and why they were delayed."
[fn. 2] 2. "There are no talismanic words that can avoid the process of judgment." (Universal Camera Corp. v. NLRB (1951) Frankfurter, J. speaking for court, 340 U.S. 474, 489 [95 L.Ed. 456, 468, 71 S.Ct. 456, 465].)
[fn. 3] 3. Civ. Code, 1577: "Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; ...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2201154/ | 64 N.J. Super. 262 (1960)
165 A.2d 829
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN S. MILLER, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued November 1, 1960.
Decided November 25, 1960.
*264 Before Judges GAULKIN, SULLIVAN and FOLEY.
Mr. Ronald Picinich argued the cause for appellant (Mr. John J. Cariddi, of counsel).
Mr. William C. Brudnick, Special Assistant Prosecutor, argued the cause for respondent (Mr. Guy W. Calissi, Bergen County Prosecutor, attorney).
The opinion of the court was delivered by GAULKIN, J.A.D.
Defendant was convicted in the Municipal court, and upon trial de novo in the County Court, of operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50. Now he appeals to this court, upon the grounds that (1) the result of a Drunkometer test was improperly received in evidence and used by the County Court as a basis for its decision, and (2) without that testimony the evidence was not sufficient to prove defendant guilty.
The State says, in its answering brief, that "the opinion of the court below clearly establishes that the basis of its *265 finding of guilty rested upon `very heavy testimony of the people who observed' defendant rather than the Drunkometer finding and its presumption." If the trial court had plainly said that the evidence other than the Drunkometer testimony established defendant's guilt, and we agreed, we would not reach the question of the reception of the Drunkometer testimony.
However, we cannot say with assurance, after reviewing the testimony and the opinion of the County Court, that the Drunkometer evidence did not influence its conclusion of guilt. For example, the doctor who examined defendant at the request of the police, after stating that he came to police headquarters "to examine him, to see if he were fit to drive an automobile," testified that "his eyes were not remarkably significant," though "the pupils were somewhat sluggish"; his reflexes were "not abnormal," and he could repeat "the words I asked him * * * pretty well" though "he was unable to walk a straight line without holding on to the wall"; and that "I concluded he had been drinking," (which defendant never denied) but "I didn't come to any definite conclusion as to whether he was fit or unfit to drive an automobile." Of course, the test is not fitness or unfitness to drive an automobile, but rather whether the defendant "has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Emery, 27 N.J. 348, 355 (1958). The prosecutor did not ask the doctor, nor did the doctor say, whether the defendant was under the influence of intoxicating liquor, either in the terms of State v. Emery or otherwise. On cross-examination the doctor testified:
"Q. * * * And you have no opinion as to whether or not he was under the influence of liquor or beer? A. Well, he was drinking. I have no opinion as to whether he was fit or unfit to drive, no."
Even in a trial without jury, "a defendant should not be required to contend with inadmissible evidence, *266 where it appears that it may have a prejudicial effect," State v. Hintenberger, 41 N.J. Super. 597, 604 (App. Div. 1956); and a new trial must be granted where "it is pure speculation as to whether the court in reaching its determination" disregarded it, State v. Dietz, 5 N.J. Super. 222 (App. Div. 1949). Cf. State v. Hulsizer, 42 N.J. Super. 224, 229 (App. Div. 1956). We must therefore deal with the Drunkometer testimony.
Joseph Wolkamir testified that he was a state trooper "stationed at the Pompton Lakes station," and that he was "also a Drunkometer operator." Then (after several pages of testimony which had nothing to do with the Drunkometer except his statement that defendant had refused to take the Drunkometer test until his own doctor arrived), he testified as follows:
"Q. Now, Officer, subsequent to this time, when you completed the oral and physical examination, did you give this defendant a Drunkometer test? A. I did, sir.
Q. And at what time did that test take place? A. At I was preparing to leave, when the defendant requested a Drunkometer test.
At 2:37 A.M. the test was given to the defendant. It was completed at 2:40 A.M., with a reading of .21.
Q. And what did this test consist of? A. This was by use of the Drunkometer, a chemical test to determine the amount of alcohol, thereby determining, under the Statute, whether the defendant is fit or unfit to operate a motor vehicle.
Q. And what was the reading, sir? A. .21%.
Mr. Ryan: No further questions, Officer. Thank you very much.
The Court: Cross examination.
Mr. Cariddi: If your Honor please, I make application to the Court at this time to strike from the records, that your Honor not consider any evidence pertaining to the result of the Drunkometer, for the simple reason that the State has failed to lay a proper foundation to qualify the Trooper as an expert; and secondly, secondly
The Court: I note your objection on his part to giving testimony.
Mr. Cariddi: * * * I move at this time that * * * that portion of his testimony, be stricken from the record. He hasn't been qualified, and there is no evidence as to how he arrived at the result, except that the result was .21.
The Court: I'll deny your motion."
*267 The State contends that these objections came too late.
As we have seen, there were two separate grounds of objection: (1) that there was no showing that the trooper was qualified, and (2) no evidence "as to how he arrived at the result," which we understand to mean as to how the test was conducted. Had the only objection been to the trooper's qualifications, it could perhaps be argued with some grace that defendant's objection came too late. Precipio v. Insurance Company of Penn., 103 N.J.L. 589, 594 (E. & A. 1927); State v. Greul, 59 N.J. Super. 34, 39 (Cty. Ct. 1959); but compare Electric Park Co. v. Psichos, 83 N.J.L. 262, 265 (Sup. Ct. 1912), and see Polulich v. J.G. Schmidt Tool Die & Stamping Co., 46 N.J. Super. 135, 143 (Cty. Ct. 1957). But the same argument may not justly be made against the second objection. To begin with, it must be noted that the statement "with a reading of .21" was volunteered by the trooper the question which had been asked of him was "at what time did that test take place?" True, defense counsel should have moved to strike that statement then, but the next question "and what did this test consist of?" appeared to go forward toward the supplying of the basis for the .21 reading. The answer given by the trooper did not describe the test, and therefore defense counsel should have urged his objection when the following question "and what was the reading, sir?" was asked, and before it was answered. However, the question merely called for a repetition of the answer previously volunteered, and he did voice his objection to the judge immediately after the trooper repeated ".21%" and the prosecutor announced he had no further questions.
The Chemical Tests For Intoxication Manual prepared by the Committee on Medicolegal Problems of the American Medical Association (1959) says (p. 30) that:
"Under properly controlled conditions, which include proper training and continuing expert supervision of competent operators and adequate expert control of equipment, reagents, and procedures, the on-the-spot tests are also capable of yielding accurate breath alcohol *268 concentration results, acceptable as an index of blood alcohol concentration of adequate reliability for clinical and legal purposes."
In a symposium on "Breath Alcohol Tests," reported in 5 Journal of Forensic Sciences 395-444 (1960), Robert F. Borkenstein, Chairman, Department of Police Administration, Indiana University, said (p. 400): "Obtaining appropriate breath for analysis is the basic problem in breath tests" and (p. 402) "The Drunkometer is as reliable as the training of the operator and the care in preparation and maintenance of the solutions."
Therefore, considering the brevity of the examination and the emptiness of the answers, the court should have honored the objection, even if not absolutely timely, and should have required the State to supply the foundation testimony. Cf. State v. Hunter, 4 N.J. Super. 531, 536 (App. Div. 1949); Electric Park Co. v. Psichos, supra; Polulich v. J.G. Schmidt Tool Die & Stamping Co., supra. State v. Greul, supra, is not to the contrary, for there defendant did not voice his objection until after the State had rested. Compare, also, State v. Dantonio, 18 N.J. 570, 580 (1955) where the Supreme Court, dealing with "radar speedmeter" readings, said:
"The defendant points out that there was no affirmative evidence introduced by the State to establish that the speedometers in the Troopers' cars had been recently tested. It would, perhaps, have been the better course for the State to have introduced such testimony and presumably it would have done so if the defendant had raised the point in due time before the close of the trial."
The Drunkometer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of the blood to admit testimony of the reading obtained upon a properly conducted test, without any need for antecedent expert testimony by a scientist that such reading is a trustworthy index of blood alcohol, or why. Chemical Tests For Intoxication Manual, supra; 5 Journal Of Forensic Sciences, supra, at *269 pp. 395-444; Donigan, Chemical Tests and the Law (1957); M.C. Slough and Paul E. Wilson, "Alcohol and the Motorist: Practical and Legal Problems of Chemical Testing," 44 Minn. L. Rev. 673 (1960); 5A Am. Jur., Automobiles and Highway Traffic, § 1247, p. 1009; Annotation; 159 A.L.R. 209; Alexander v. State, 305 P.2d 572, 586 (Okla. Cr. 1956); People v. Kovacik, 205 Misc. 275, 128 N.Y.S.2d 492 (Sp. Sess. 1954); State v. Olivas, 77 Ariz. 118, 267 P.2d 893 (Sup. Ct. 1954); People v. Bobczyk, 343 Ill. App. 504, 99 N.E.2d 567 (App. Ct. 1951). Contra, People v. Morse, 325 Mich. 270, 38 N.W.2d 322 (Sup. Ct. 1949). N.J.S.A. 39:4-50.1 recognizes that the amount of alcohol in a defendant's blood may be shown "by chemical analysis of * * * breath."
Of course, testimony based on Drunkometer readings, whether given by police officers or scientists, is not conclusive. N.J.S.A. 39:4-50.1. Cf. State v. Dantonio, supra, 18 N.J., at pp. 578-580; Ross v. Marx, 24 N.J. Super. 25, 26 (App. Div. 1952), certification denied, 14 N.J. 466 (1954). There are those who dispute the reliability of Drunkometer readings as an accurate index of blood alcohol, and admittedly there is possibility of error, but, as of the present time, the Drunkometer is so well established that these considerations do not affect the admissibility of the Drunkometer evidence but simply affect its weight. Cf., State v. Greul, supra; State v. Dantonio, supra; Ross v. Marx, supra.
This brings us to the question of what is an adequate foundation for the introduction of the reading obtained upon a Drunkometer test. Here it must be borne in mind that breath testing as an index to blood alcohol is an advancing science. Only 11 years ago Judge (now Justice) Brennan said in State v. Hunter, supra, 4 N.J. Super., at p. 538:
"The Harger test is rooted in a technology seemingly not fully understood at this time by any except the technicians who developed it and certainly having the flavor of the esoteric to the uninitiated." *270 Since that time the Drunkometer and the technique of its use apparently have been and continue to be improved. In this connection, it is interesting to note that in said symposium, at p. 410, Dr. Glenn C. Forrester said:
"I cannot help but feel that at least part of the research that has gone into the development of the `perfect' breath analyser of today from the `perfect' breath analyser of twenty years ago has been stimulated by the objections raised in the courtroom during this period."
As an example of these continuing changes in Drunkometer technique, it was said in the "Breath Alcohol Tests" symposium above mentioned, at p. 400, that "In 1956 Harger reported a variation of the Drunkometer method using rebreathed air, an analytical simplification of his method." It would therefore be unwise for us to attempt to specify precisely what proof the State must adduce before the technician who gave the test may testify as to the reading. As a minimum, however, the State should prove (unless such proof is waived) that the operator was qualified, that the machine and its components were in proper condition, and that the test was properly administered. Whether more shall be required in a given case as a foundation for the admission of the operator's testimony must be left to the trial judge upon the basis of the facts and issues in the particular case.
Of course, the mere fact that the testimony of the operator is admitted does not mean that the trial court will always find that it is sufficient, standing alone, to prove guilt beyond a reasonable doubt. As Dr. Robert B. Forney, a collaborator with Dr. Harger in many of his researches, said in the above mentioned symposium (p. 409):
"Lawyers are obligated by their professional integrity to establish the validity of any given breath test for alcohol when the results of such test are to be used as evidence against a client they are representing. This must and should be accomplished by diligent searching interrogation.
None of the breath tests currently employed can be better than the individual operating them. The success of the entire chemical *271 test for intoxication program must depend on the competency of the operators, not only to perform the tests correctly but to withstand legitimate cross-examination."
For the foregoing reasons the judgment is set aside and the case is remanded to the County Court for a new trial, at which, of course, the State may present not only proper Drunkometer testimony, but may re-present the entire case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2201161/ | 254 Cal.App.2d 119 (1967)
THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT OWEN JOHNSON et al., Defendants and Appellants.
Crim. No. 12605.
California Court of Appeals. Second Dist., Div. One.
Sept. 5, 1967.
Howard Meyerson for Defendants and Appellants.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Stanton Price, Deputy Attorney General, for Plaintiff and Respondent.
FOURT, J.
In an information filed in Los Angeles County on September 16, 1965, Johnson and Garrison were charged with robbing William Harris of about $25 on June 22, 1965. It was further charged that Johnson previously, on November 10, 1964, was convicted of a violation of section 11530, Health and Safety Code, a felony. Defendants pleaded not guilty and Johnson denied the prior conviction. In a trial before the court, without a jury, each defendant was found guilty of robbery in the second degree. No finding was made by the judge with reference to the truth of the charged prior felony conviction even though the superior court file of the case (People v. Johnson, No. 290,718) was introduced into evidence by the prosecution, and that record discloses that Johnson had pleaded guilty to the charge of possessing narcotics as charged in the information. Each defendant was sentenced to the state prison for the term prescribed by law. The court further, in spite of making no finding as to the truth or falsity of the charged prior, in Johnson's case numbered 290,718, revoked the probation previously therein granted and sentenced Johnson to the state prison, the sentence to run concurrently with the robbery sentence. A timely notice of appeal was filed for each defendant. *121
A resume of some of the facts is as follows: The crime occurred on the evening of June 22, 1965, at about 10 p.m. when William C. Harris, a 61-year old maintenance man at the Regency Hotel on Hollywood Boulevard, was returning from the drugstore with a quart bottle of 7-Up and a newspaper for one of the guests at the hotel. Suddenly appellants, clad in T-shirts and dark pants, jumped out of a car parked at the curb and accosted Harris. While Garrison ran toward the victim, talking loudly and shaking his fists, Johnson maneuvered himself to a position behind Harris. Harris tried to hit Johnson over the head with the soft drink bottle, but Johnson knocked it out of his hand, grabbed his arm and threw him down, shouting to Garrison, "Get his billfold." Both defendants then began beating Harris and finally Garrison took Harris' wallet, which contained about $25. Once Garrison had the wallet, Johnson told someone in the parked car to get going and the car then turned right and drove down Fairfax. Johnson ran east and Garrison ran west down Hollywood Boulevard.
Harris returned to the hotel and called the police, who arrived soon thereafter and took him to Hollywood Receiving Hospital for treatment of shoulder and knee injuries. That hospital and the Hollywood police station are on the same grounds with adjoining entrances. As Harris was leaving the hospital he saw Johnson and Garrison in handcuffs entering the police station and he immediately identified them to the police as his assailants.
Officers Ingledew and DeBolt, of the Los Angeles Police Department, earlier that evening had received a radio call to the effect that Johnson, identified by name, was wanted for assault with a deadly weapon which he had committed with a described companion. The assailants in that crime were described as wearing white T-shirts and blue jeans, and driving a white or green, 1956, 4-door Chevrolet. At about 10:55 p.m., while these officers were at a service station on Cahuenga Boulevard talking with the victim of the previous assault, the victim shouted to the officers, "There they go" as defendants drove by the station. The officers identified the white and green 1956 Chevrolet passing by, stopped the car and arrested its occupants, Johnson and Garrison.
Appellants testified in their own defense that they met in Hollywood at a beer bar known as the "Tiki" around 6 p.m. on the date of the robbery and went from there to Biff's restaurant around 7:30 p.m. They admitted that Garrison became *122 involved in a fight at Biff's and said that an hour or so later they returned to the "Tiki" where Johnson had a date to meet Nancy Sheldon. There they remained until Mrs. Sheldon had to leave, shortly after 11 p.m. Appellants and a companion then left the "Tiki" in Johnson's green and white Chevrolet and were apprehended by police at the service station shortly thereafter. Serious doubt was cast upon the testimony of two other "Tiki" patrons who attempted to verify this defense. Although they testified generally that they were present and observed appellants at the "Tiki" from about 9 p.m. until 11 p.m. on the evening of June 22, 1965, their vagueness as to the time appellants were there and concerning the activities of appellants, rendered their observations of dubious value. Moreover, Johnson's statement, made freely and voluntarily to the police shortly after his arrest, contradicted this testimony. In that statement, which he found it necessary to deny in court, he admitted that following the fight at Biff's appellants merely went driving around aimlessly.
Appellants contend that they were deprived of a fair trial because the trial court, in its extensive examination of certain witnesses, undertook the role of prosecutor rather than that of impartial judge. This contention, which is unsupported by specific references or authorities, is without merit.
We observe, from a review of the record, that appellants interposed no objection to the trial court's interrogation of these witnesses. [1] "One of the fundamentals of appellate review is that, except in special circumstances not present here, the admissibility of evidence will not be reviewed on appeal in the absence of a sufficient objection in the trial court. [Citation.] [2] Likewise, where a party seeks to suppress evidence under a claim of constitutional or statutory privilege, his privilege is lost by failure to assert it at the appropriate time. [Citations.]" (People v. Garrison, 246 Cal.App.2d 343, 350 [54 Cal.Rptr. 731].)
[3] The record herein shows that the trial court not only acted within the limits of propriety and sound discretion, but capably discharged its judicial responsibility to clarify ambiguities and elicit relevant details. "A trial judge may examine witnesses to elicit or clarify testimony [citations]. Indeed, 'it is the right and duty of a judge to conduct a trial in such a manner that the truth will be established in accordance with the rules of evidence.' [Citation.] The trial judge, however, must not become an advocate for either party or under the guide [sic] of examining witnesses comment on the evidence *123 or cast aspersions or ridicule on a witness. [Citations.]" (People v. Rigney, 55 Cal.2d 236, 241 [10 Cal.Rptr. 625, 359 P.2d 23, 98 A.L.R.2d 186].)
[4] In the instant case, judicial interrogation was conducted within acceptable limits and, far from depriving appellants of a fair trial, insured them a sound decision based upon the disclosure of all the essential, relevant facts. The court in every instance deferred to counsel, allowing the attorneys ample opportunity to question the respective witnesses and receiving assurance that they had finished before supplementing the interrogation. At no time did the court comment, embarrass a witness, or display bias. During the case in chief the court merely sought to clarify; during the defense presentation it sought to elicit additional relevant information, especially concerning estimates of time and determinations of the accuracy of defense witness observations. Under the circumstances, this procedure not only was permissible but was desirable.
The judgments are, and each is, affirmed.
Wood, P. J., and Lillie, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2328788/ | 158 Pa. Commonwealth Ct. 134 (1993)
631 A.2d 723
CHESTER UPLAND EDUCATION ASSOCIATION, Appellant,
v.
PENNSYLVANIA LABOR RELATIONS BOARD and Chester-Upland School District.
CHESTER UPLAND SCHOOL DISTRICT
v.
PENNSYLVANIA LABOR RELATIONS BOARD, Appellant.
Commonwealth Court of Pennsylvania.
Argued May 13, 1993.
Decided August 24, 1993.
*135 Leonard V. Tenaglia, for appellant Chester Upland Educ. Association.
*136 Timothy Tietze, for appellant, Pennsylvania Labor Relations Bd.
David C. Corujo, for appellee Chester Upland School Dist.
Before COLINS and PELLEGRINI, JJ., and LORD, Senior Judge.
LORD, Senior Judge.
The appellants Pennsylvania Labor Relations Board (PLRB) and Chester Upland Education Association (Association) appeal a Delaware County Common Pleas Court order denying the PLRB's motion to quash and granting Chester Upland School District's (School District) petition for review and reversing the PLRB's decision. In that decision, a hearing examiner held that the School District committed an unfair labor practice and ordered it to submit to grievance arbitration.
In June of 1991, the Association filed a grievance alleging that the School District had furloughed teachers or placed them on part-time status in violation of the seniority provisions of the collective bargaining agreement between the Association and the School District. The School District refused to participate in grievance arbitration procedures set forth in the bargaining agreement on the grounds that the subject matter of the dispute was not subject to those grievance procedures.
The Association then filed an unfair labor practice with the PLRB. The School District argued before a PLRB hearing examiner that the PLRB lacked jurisdiction and that the grievance provision found in Article IV(C)[1] of the bargaining agreement excluded from the grievance process matters in *137 which a teacher would have a remedy under the Public School Code (School Code).[2] Believing that the School Code gave the Chester Upland teachers a remedy if the furloughs and reductions in status were improper, the School District argued that it was not required to arbitrate. After a hearing, the hearing examiner issued a proposed decision and order (PDO) on March 17, 1992. Therein, the hearing examiner concluded, on the authority of the Supreme Court's decision in Pennsylvania Labor Relations Board v. Bald Eagle School District, 499 Pa. 62, 451 A.2d 671 (1982) and this Court's interpretation of that decision in East Pennsboro Area School District v. Pennsylvania Labor Relations Board, 78 Pa.Commonwealth Ct. 301, 467 A.2d 1356 (1983), that the School District had committed an unfair labor practice in violation of Section 1201(a)(1) and (5) of the Public Employe Relations Act, 43 P.S. § 1101.1201(a)(1) and (5),[3] by refusing to process the Association's grievance for arbitration. The hearing examiner directed the School District to arbitrate.
The School District did not file exceptions to the PDO. Instead, less than a month after its issuance, the School District filed a petition for review in common pleas court in which it asked that "the decision and order of the Pennsylvania Labor Relations Board be reversed" and that the court "determine that a request to review an alleged demotion of a professional employee is not within the grievance arbitration provisions of the collective bargaining agreement."
*138 The PLRB filed a motion to quash the School District's petition on the ground that the School District had failed to avail itself of the administrative remedy of filing exceptions to the hearing examiner's PDO. It also filed a petition for enforcement of the PDO, which it now regarded as final since the School District had neither filed exceptions nor sought a stay of that PDO.
On September 1, 1992, the common pleas court denied the PLRB's motion to quash and, on consideration of the School District's petition for review, reversed the PLRB's order directing the School District to cease the unfair labor practice of which the Association complained. It is the common pleas court's order of September 1, 1992 which the appellants PLRB and Education Association ask us now to review.
Though framed in terms of challenges to several of the procedural aspects of this case, the issues presented by the appellants and counter-statements made by the appellees all lead to what is, in essence, a single question. Did the School District violate Sections 1201(a)(1) and (5) by refusing to submit to arbitration? A determination of this question turns on who in the first instance has the power to decide whether a dispute between a School District and a school employees' union is arbitrable under the grievance provisions of a collective bargaining agreement.
The Association and the PLRB argue that the School District is not entitled to have an adjudication of this question because it failed to file exceptions to the PDO in which the hearing examiner found that the refusal to submit to arbitration of the Association's grievance was an unfair labor practice. Therefore, the argument goes, the challenge to arbitrability has been waived.
The School District counters that it raised and preserved the issue of arbitrability. Indeed, arbitrability was the sole issue before the hearing examiner as the parties submitted it. The School District's petition for review was timely to the common pleas court, and, it maintains, this Court's decisions in In re Glover, 137 Pa.Commonwealth Ct. 429, 587 A.2d 25 *139 (1991) and Harbor Creek School District v. Harbor Creek Education Association, 146 Pa.Commonwealth Ct. 631, 606 A.2d 666 (1992) in any case allow it to seek relief in common pleas court when it genuinely disputes whether a matter is subject to arbitration. Thus, failure to file exceptions is not fatal to a request for review of the PLRB's determination that a party committed an unfair labor practice by refusing to arbitrate.
In Hollinger v. Department of Public Welfare, 469 Pa. 358, 366, 365 A.2d 1245, 1249 (1976), our Supreme Court stated that "jurisdiction to determine whether an unfair labor practice has indeed occurred and, if so, to prevent a party from continuing the practice is in the PLRB and nowhere else." As we have done before when confronted with the question of whether the PLRB correctly found a violation of Section 1201(a)(5) in the face of arguments that no agreement to arbitrate exists, we turn to the oft-quoted language in Bald Eagle, 499 Pa. at 65, 451 A.2d at 672-673.
We have consistently held that the question of the scope of the grievance arbitration procedure is for the arbitrator, at least in the first instance . . . [A]rbitration is not an improper remedy simply because an arbitrator might possibly fashion an improper award . . . (emphasis in original; citations omitted).
In East Pennsboro, 78 Pa.Commonwealth Ct. at 308-309, 467 A.2d at 1359, a case interpreting Bald Eagle, we then stated
Pennsylvania labor policy in the public area requires submission to arbitration of disputes involving the collective bargaining agreement. By allowing the employer to unilaterally refuse to submit a dispute to arbitration would in effect allow the employer's interpretation to control. While the PLRB has statutory authority to determine questions of arbitrability when it decides an unfair labor practice has been committed by a refusal to arbitrate, the Supreme Court has made clear that questions of arbitrability must first be submitted to an arbitrator and that any refusal to arbitrate a dispute concerning a collective bargaining agreement *140 is per se an unfair labor practice. (emphasis in original; citations omitted).
The School District insists that subsequent case law recognizing common pleas court jurisdiction to determine arbitrability has limited the authority of East Pennsboro. It asserts that, in any case, we reviewed the collective bargaining agreement in East Pennsboro to determine that very question of arbitrability. However, contrary to the School District's assertion, we explicitly refused in that case to reach issues concerning the merits of the arbitrability question until the arbitrator first ruled. Id. at 313, n. 3, 467 A.2d at 1361, n. 3. Likewise, we will refuse to do so here.
The cases the School District commends to us for the contrary proposition that judicial review in lieu of arbitration is warranted actually demonstrate the correctness of the hearing examiner's decision here.
While we said in Garnet Valley Service Personnel Association v. Garnet Valley School District, 128 Pa.Commonwealth Ct. 182, 186, 563 A.2d 207 (1989), that it is "within the province of this court to determine as a threshold issue whether the parties . . . have agreed to submit that dispute to an arbitrator's jurisdiction," the employee's grievance was in that case taken to arbitration by agreement of the parties. It was not until after the arbitrator determined that the grievance was arbitrable and the grievance was upheld that the common pleas court was asked to vacate the arbitration award. Thereafter, this court, in reviewing the common pleas court's decision to vacate, decided that "threshold" question in the school district's favor. In Harbor Creek, after a personnel action was submitted to arbitration and the trial court affirmed a decision that the grievance was arbitrable, we reversed the court's refusal to vacate the arbitration award, concluding that the grievance was not arbitrable because the subject employee was not covered by the collective bargaining agreement. In each case, the parties submitted to arbitration and thereafter sought the judicial review to which they were statutorily entitled.
*141 In both Middle Bucks Education Association v. Executive Council, Middle Bucks Area Vocation Technical School, 122 Pa.Commonwealth Ct. 595, 552 A.2d 763 (1989) and In re Glover, the respective school district employers sought a stay of grievance arbitration pursuant to Section 7304(b) of the Uniform Arbitration Act (UAA), 42 Pa.C.S. § 7304(b). In Middle Bucks, a tenured professional employee was dismissed under the School Code. The employee did not appeal but filed a grievance and attempted to proceed to arbitration. The employer requested a stay of arbitration on the grounds that the School Code was the exclusive avenue for the employee's challenge. The trial court stayed the arbitration and this Court affirmed. In In re Glover, an employee grievance was processed to the fourth step, submission to arbitration. The employer then filed an action in common pleas court to enjoin arbitration and the court granted that relief. We held there that a stay is proper when a collective bargaining agreement expressly provides that certain personnel actions are not subject to arbitration. If the court finds an express agreement not to arbitrate, Section 7304(a) of the UAA allows the court to enjoin arbitration. Glover, 137 Pa.Commonwealth Ct. at 434, 587 A.2d at 28.[4]
Here, the school district did not submit to grievance arbitration or seek a stay of those proceedings. Had it submitted to arbitration, the arbitrator may have found the grievance not to be arbitrable; had it sought a stay of arbitration pursuant to the UAA under the Middle Bucks and Glover criteria, the common pleas court may have granted an injunctive relief. The school district chose to do neither, instead waiting until it had been charged with an unfair labor practice to seek judicial redress. That Middle Bucks and In re Glover may allow judicial intervention under limited circumstances when, indeed, such intervention is sought cannot help the employer who chooses not to participate in arbitration until an unfair labor practice is lodged.
*142 We believe the procedure which the School District should have followed was straightforwardly explained in the recent decision in Commonwealth, Office of Administration v. Pennsylvania Labor Relations Board, 528 Pa. 472, 598 A.2d 1274 (1991), an interest arbitration case which nonetheless cited our East Pennsboro decision with approval. Chief Justice Nix, writing for the unanimous Court, stated
We believe that this procedure is consistent with existing Pennsylvania law and policy which requires that procedural questions and factual[5] questions regarding the scope of matters to be resolved by arbitration are to be determined by the arbitrator . . . Should the arbitrator make an award concerning issues not properly subject to bargaining, such award would not be facially invalid. This Court has held that arbitration is not improper simply because the arbitrator might fashion an invalid award. PLRB v. Bald Eagle Area School District, 499 Pa. 62, 451 A.2d 671 (1982). The aggrieved party's interests, however, are still protected by its statutory right to appeal from the final determination and award made by the arbitrator.
Id., 528 Pa. at 478-479, 598 A.2d at 1277 (footnote in original omitted; citations omitted).
To summarize, the decisions of the Supreme Court and this Court are not inconsistent and make clear the procedures and scope of review in grievance arbitration.
First, the scope of matters to be resolved by grievance arbitration is in the first instance for the arbitrator to determine. Bald Eagle. An employer may, however, file a petition for a stay of arbitration proceedings under 42 Pa.C.S. § 7304(b) if the employer can show a substantial, bona fide dispute as to arbitrability. Middle Bucks. If, on consideration of that stay petition, it can be said with certainty that the collective bargaining agreement does not address the *143 dispute which would be arbitrated, the common pleas court may grant a stay. Central Bucks School District v. Central Bucks Education Association, 157 Pa.Commonwealth Ct. 100, 629 A.2d 196 (1992). A trial court should not, however, enjoin arbitration unless "it can be said with positive assurance" that the parties have agreed the dispute is not subject to arbitration. Phoenixville Area School District v. The Phoenixville Area Education Association, 154 Pa.Commonwealth Ct. 438, 624 A.2d 1083 (1993).
Second, after arbitration, a party may, on appeal to the common pleas court, raise the question of arbitrability as a threshold matter if the question has been raised before the arbitrator. See, e.g., Harbor Creek. If it is established before the common pleas court that the dispute is not subject to arbitration, then that court may vacate the arbitration award. Garnet Valley.
Finally, where no stay is sought and an employer does not process a grievance or otherwise participate in arbitration, the question before the PLRB is whether the refusal to arbitrate is an unfair labor practice, and jurisdiction to determine this question is first in the PLRB "and nowhere else." Hollinger. A party cannot unilaterally refuse to proceed to arbitration, since section 1201(a)(5) of the PERA makes it an unfair labor practice to refuse to arbitrate grievances in good faith. East Pennsboro.
Rather than arbitrate this grievance, the School District chose unilaterally not to participate in the grievance process. The hearing examiner found this to be an unfair labor practice and we hold, for the reasons discussed here, that his determination was correct. We therefore reverse the decision of the common pleas court and reinstate the hearing examiner's proposed decision and order.
ORDER
AND NOW, this 24th day of August 1993, the order of the Delaware County Common Pleas Court at No. 92-05477, dated September 1, 1992, is hereby reversed.
NOTES
[1] Discipline-Grievance Procedure
No teacher shall be disciplined, formally reprimanded, reduced in rank or compensation or deprived of any benefits secured herein without justifiable reason. Any such action asserted by the Board, or any agent or representative thereof, shall be subject to the grievance procedure herein set forth. This provision shall not apply to circumstances where the teacher would otherwise have a remedy under the provisions of the Public School Code of 1949, as amended.
[2] Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101-27-2702.
[3] § 1101.1201. Unfair practices by public employers and employe organizations; acts prohibited.
(a) Public employers, their agents or representatives are prohibited from:
(1) Interfering restraining or coercing employes in the exercise of the rights guaranteed in Article IV of this act.
. . . . .
(5) Refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.
[4] In that case, Judge Kelley explained that there is nothing in our Middle Bucks decision, where a stay of arbitration under Section 7304(b) of the UAA was sought, that is inconsistent with the earlier Hollinger and East Pennsboro decisions.
[5] In East Pennsboro, Judge Barry, citing Community College of Beaver County v. Community College of Beaver County, Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977), stated that the question of arbitrability is essentially one of fact, turning as it does on the intent of the parties to the agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3151450/ | *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-10-0000173
02-NOV-2015
09:20 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Petitioner/Plaintiff-Appellee,
vs.
LAWRENCE DEMELLO, JR.,
Respondent/Defendant-Appellant.
SCWC-10-0000173
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000173; CASE NO. 2P108-02074)
NOVEMBER 2, 2015
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.,
WITH POLLACK, J., DISSENTING, WITH WHOM CIRCUIT JUDGE PERKINS,
IN PLACE OF ACOBA, J., RECUSED, JOINS
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Plaintiff-Appellee the State of Hawai#i
(State) has asked this court to determine whether the
Intermediate Court of Appeals (ICA) gravely erred when it held
that lost wages may not be awarded as restitution pursuant to HRS
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
§ 706-646 (Supp. 2006). We hold that HRS § 706-646 permits
restitution for reasonable and verified lost wages in appropriate
circumstances. Here, the District Court of the Second Circuit
(district court) acted within its discretion when it ordered
Respondent/Defendant-Appellant Lawrence DeMello, Jr. (DeMello) to
pay restitution for wages that the Complaining Witness (CW) lost
as a result of DeMello’s unlawful conduct.
I. BACKGROUND
On May 10, 2008, a physical altercation involving
DeMello and the CW occurred at the CW’s home. As a result of the
altercation, DeMello was charged with one count of harassment in
violation of HRS § 711-1106(1)(a) (Supp. 1996) and one count of
trespass in violation of HRS § 708-815(1) (1993). The district
court held a bench trial on December 14, 2009.1
At trial, the CW testified that on the night in
question, she, her husband, and DeMello had been arguing about
the proper care of her husband’s son. The argument escalated
into a physical altercation. Eventually DeMello grabbed the CW
by the hair and dragged her about ten feet across her lawn. The
CW testified that she experienced immediate, excruciating pain,
and that she blacked out. At the close of trial, the district
court found DeMello guilty of both charges.
1
The Honorable Kelsey T. Kawano presided.
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At the State’s request, the district court held
restitution hearings on August 2, 2010, and September 20, 2010.
During the first hearing, the CW testified that in the days
following the altercation, she experienced chronic pain in her
neck and shoulders, blurred vision, and that she had difficulty
standing. The CW also testified that due to her injuries, she
was unable to perform her job duties as a hairdresser for a ten-
day period. The State entered the CW’s hairdressing appointment
ledger into evidence. With respect to the ledger, Defense
counsel stated:
We will stipulate that [the CW] will say each of these names
that are listed on her ledger, that she will say how much
she charged, and . . . the taxes added, . . . and that the
total amount is indicated as $1,155.12.
We are not stipulating that this is true, only that this is
what [the CW] will testify to.
At the second hearing, DeMello argued:
With respect to the lost wages and therapy, we would argue
that that is not applicable to the restitution statute.
. . . .
We would argue that the Legislature, when they amended [HRS
§ 706-646] in 1998, did not intend to include wage loss and
therapy.
And [House] Standing Committee Report Number 683-98, the
House stated . . . “wage loss was ‘more appropriate’ for the
civil arena.”
The district court disagreed. It ordered DeMello to pay $3,387
in restitution, including $1,155 in restitution for the ten-day
period when the CW was unable to work.
On appeal, the ICA reversed. It held, among other
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things, that lost wages are not a compensable category of
restitution pursuant to HRS § 706-646. Accordingly, the ICA
vacated the restitution order and remanded for a new restitution
hearing.2
II. STANDARD OF REVIEW
The proper interpretation of a statute is a question of
law that is reviewed de novo under the right/wrong standard.
Gillan v. Gov’t Emps. Ins. Co., 119 Hawai#i 109, 124, 194 P.3d
1071, 1086 (2008).
III. DISCUSSION
HRS § 706-646(2) (subsection 2) provides, in relevant
part: “The court shall order the defendant to make restitution
for reasonable and verified losses suffered by the victim or
victims as a result of the defendant’s offense when requested by
the victim.” HRS § 706-646(3) (subsection 3) provides, in
relevant part: “Restitution shall be a dollar amount that is
sufficient to reimburse any victim fully for losses, including
but not limited to: (a) Full value of stolen or damaged property
. . . ; (b) Medical expenses; and (c) Funeral and burial expenses
incurred as a result of the crime.” The State has asked this
court to determine whether HRS § 706-646 authorizes restitution
2
The ICA also remanded for a new hearing on the apportionment of
medical expenses and for resentencing on DeMello’s harassment conviction.
Neither of those determinations were challenged in the State’s application for
writ of certiorari.
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for lost wages. We hold that HRS § 706-646 permits restitution
for reasonable and verified lost wages in appropriate
circumstances.3
A. The Plain Language of HRS § 706-646
The plain language of a statute is “the fundamental
starting point of statutory interpretation.” State v. Wheeler,
121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009) (internal
quotations omitted). “Courts are bound, if rational and
practicable, to give effect to all parts of a statute and no
clause, sentence or word shall be construed as superfluous, void
or insignificant if construction can be legitimately found which
will give force to and preserve all words of the statute.” Dawes
v. First Ins. Co. of Hawai#i, Ltd., 77 Hawai#i 117, 135, 883 P.2d
38, 56 (1994) (citation omitted). Additionally, “this court must
presume that the legislature meant what it said and is further
barred from rejecting otherwise unambiguous statutory language.”
Morgan v. Planning Dep’t, Cnty. of Kauai, 104 Hawai#i 173, 185,
86 P.3d 982, 994 (2004) (quoting Sato v. Tawata, 79 Hawai#i 14,
23, 897 P.2d 941, 950 (1995) (Ramil, J., dissenting)).
[W]here there is no ambiguity in the language of a statute,
3
We define “wage” to mean: “[A] payment usu. of money for labor or
services usu. according to contract and on an hourly, daily, or piecework
basis.” Merriam-Webster’s Dictionary of Law 529 (1996). Although some
sources define “lost wages” to encompass loss of earning capacity, Black’s Law
Dictionary 1812 (10th ed. 2014), that concept is not at issue in this case and
would seem to fall outside the scope of HRS § 706-646’s requirement that lost
wages be “verified” rather than merely quantifiable.
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and the literal application of the language would not
produce an absurd or unjust result, clearly inconsistent
with the purposes and policies of the statute, there is no
room for judicial construction and interpretation, and the
statute must be given effect according to its plain and
obvious meaning.
State v. Palama, 62 Haw. 159, 161, 612 P.2d 1168, 1170 (1980)
(brackets in original, citation omitted).
The plain language of HRS § 706-646(2) states that the
court “shall order the defendant to make restitution for . . .
losses suffered by the victim.” In other words, subsection 2 is
mandatory and its scope is broad. However, subsection 2 imposes
four requirements before restitution must be awarded; the
victim’s losses must be (1) “reasonable,” (2) “verified,” (3)
“suffered . . . as a result of the defendant’s conduct,” and (4)
“requested by the victim.” These limitations impose thresholds
that relate to proof and to procedure, but do not limit the
categories of restitution that are compensable. Thus, as
subsection 2 contains no language that would exclude lost wages,
an award that did not compensate a victim for lost wages would
not fulfill the court’s mandatory duty to order restitution for
“losses” in appropriate circumstances. Accordingly, the plain
language of subsection 2 appears to require restitution for lost
wages subject to the aforementioned limitations.
Subsection 2 operates in harmony with subsection 3,
which also is mandatory and broad in scope. Subsection 3
contains both a prefatory clause and an illustrative list.
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Turning first to the prefatory clause, subsection 3 mandates that
“[r]estitution shall be a dollar amount that is sufficient to
reimburse any victim fully for losses.” (Emphasis added). An
award that did not include reasonable and verified income lost as
a result of the defendant’s unlawful conduct would not reimburse
a victim fully for losses. Therefore, the plain language of the
prefatory clause also appears to require restitution for lost
wages.
Subsection 3’s illustrative list states, in context:
“Restitution shall be a dollar amount that is sufficient to
reimburse any victim fully for losses, including but not limited
to: (a) Full value of stolen or damaged property . . .; (b)
Medical expenses; and (c) Funeral and burial expenses.”
(Emphasis added). This list is an inclusive list rather than an
exhaustive one. See State v. Mita, 124 Hawai#i 385, 391, 245
P.3d 458, 464 (2010) (explaining that the phrase “shall include
but not be limited to” provides “an inclusive, rather than
exclusive, list of examples”); see also Black’s Law Dictionary at
880 (10th ed. 2014) (“The participle including typically
indicates a partial list . . . [b]ut some drafters use phrases
such as including without limitation and including but not
limited to -- which mean the same thing.”). In other words, the
legislature’s use of the phrase “including but not limited to”
indicates that the three categories of losses enumerated in
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subsection 3 are not the only categories of losses that may be
recovered pursuant to the statutory scheme. Any other reading
would render the phrase “including but not limited to”
meaningless.
Even if subsection 3 were to be viewed as a
definitional parameter, verified lost wages are similar in kind
to the losses illustrated in subsection 3 -- verified pecuniary
losses. See Zanakis-Pico v. Cutter Dodge, Inc., 98 Hawai#i 309,
321, 47 P.3d 1222, 1234 (2002) (stating that pecuniary losses are
“those damages (either general or special) which can be
accurately calculated in monetary terms such as loss of wages and
cost of medical expenses”). Indeed, lost wages are routinely
grouped with the types of losses illustrated in subsection 3.
See, e.g., State Farm Mut. Auto. Ins. Co. v. Dacanay, 87 Hawai#i
136, 138 n.3, 952 P.2d 893, 895 n.3 (App. 1998) (“Special damages
are often considered synonymous with pecuniary loss and include
such items as medical and hospital expenses [and] loss of
earnings.”). Of course, pecuniary losses that are merely
quantifiable rather than verified, would not comport with the
requirements of subsection 2.
Requiring restitution for reasonable and verified lost
wages would not lead to an absurd result. One purpose motivating
the passage of HRS § 706-646 were the perceived gaps in victim
compensation through the Crime Victim Compensation Commission
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(CVCC). See H. Stand. Comm. Rep. No. 683-98, in 1998 House
Journal, at 1305 (“Although the Criminal Injuries Compensation
Commission helps victims by providing some compensation, victims
of property crimes and some violent crimes are not eligible for
any compensation from the Commission.”).4 Here, due to the
nature of DeMello’s crimes, the CW would not have been eligible
for an award from the CVCC. See HRS §§ 351-31 and 351-32. Thus,
our interpretation of HRS § 706-646 is in accordance with the
legislature’s underlying purpose to provide restitution for
victims who are ineligible for CVCC compensation.
Additionally, restitution for reasonable and verified
lost wages would not place an unreasonable administrative burden
on trial courts. HRS § 706-646 already requires the allocation
of court resources to provide restitution for medical expenses,
especially where apportionment for a pre-existing, symptomatic
injury is at issue. See Montalvo v. Lapez, 77 Hawai#i 282, 299,
884 P.2d 345, 362 (1994) (requiring apportionment of damages
caused by a pre-existing, symptomatic injury). In most cases,
the additional burden of adjudicating reasonable and verified
lost wages will be consolidated into other hearings that trial
courts are already required to hold. Furthermore, HRS § 706-646,
according to its terms, safeguards against adjudication of unduly
4
The CVCC was originally called the Criminal Injuries Compensation
Commission. See 1967 Haw. Sess. Laws Act 226, § at 332.
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complex wage loss issues. Where lost wages cannot be verified,
which may be the case if the victim was unemployed or if the
request is for expected future income, adjudication will require
a more extensive civil proceeding.
In sum, there is nothing in the language of HRS § 706-
646 to suggest that the kind of losses at issue in this case,
reasonable and verified lost wages, would be unrecoverable in a
restitution proceeding. Not only are such losses capable of
adjudication in the type of streamlined proceedings contemplated
by the statute, they comport with the statutory mandate that the
court “shall order the defendant to make restitution for . . .
losses suffered by the victim . . . [in] a dollar amount that is
sufficient to reimburse any victim fully for losses.” Therefore,
in accordance with the plain language of the statute, we hold
that lost wages are recoverable pursuant to HRS § 706-646.
B. The Legislative History of HRS § 706-646
If statutory language is ambiguous or doubt exists as
to its meaning, “‘[c]ourts may take legislative history into
consideration.’” Franks v. City and Cnty. of Honolulu, 74 Haw.
328, 335, 843 P.2d 668, 671-72 (1993) (quoting Life of the Land
v. City and Cnty. of Honolulu, 61 Haw. 390, 447, 606 P.2d 866,
899 (1980). Even where statutory language appears unambiguous
upon initial review, “an examination of sources other than the
language of the statute itself” may be essential “to adequately
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discern the underlying policy which the legislature seeks to
promulgate . . . to determine if a literal construction would
produce an absurd or unjust result, inconsistent with the
policies of the statute.” Sato, 79 Hawai#i at 17, 897 P.2d at
944.
However, “we do not resort to legislative history to
cloud a statutory text that is clear.” State v. Kalama, 94
Hawai#i 60, 64, 8 P.3d 1224, 1228 (2000) (internal citation and
quotation marks omitted) (declining to rely on a legislative
committee report expressing views that did not correspond to the
statutory language ultimately enacted). This court has
repeatedly declined to rely on legislative history where the
plain language of the statute did not produce an absurd result,
even in situations where “the history may show that the
legislature really meant and intended something not expressed by
the phraseology of the statute.” State v. Mainaaupo, 117 Hawai#i
235, 251, 178 P.3d 1, 17 (2008) (internal quotations and citation
omitted).
We cannot change the language of the statute, supply a want,
or enlarge upon it in order to make it suit a certain state
of facts. We do not legislate or make laws. Even where the
Court is convinced in its own mind that the Legislature
really meant and intended something not expressed by the
phraseology of the Act, it has no authority to depart from
the plain meaning of the language used.
State v. Dudoit, 90 Hawai#i 262, 271, 978 P.2d 700, 709 (1999)
(emphasis removed) (quoting State v. Meyer, 61 Haw. 74, 77, 595
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P.2d 288, 291 (1979)).
Additionally, the role of legislative history is
limited to the extent it sheds reliable light on the enacting
legislature’s understanding of an otherwise ambiguous term. See
Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 550
(2005). “‘Statements by legislators or even committee reports
need not reflect the purpose which a majority of the legislators
believed is carried out by [a] statute.’” Dines v. Pac. Ins.
Co., Ltd., 78 Hawai#i 325, 332, 893 P.2d 176, 183 (1995) (quoting
Yoshizaki v. Hilo Hosp., 50 Haw. 150, 153 n.5, 433 P.2d 220, 223
n.5 (1967)). “Only ‘unmistakable support in the history and
structure of the legislation’ can justify a rejection of
otherwise unambiguous language.” Richardson v. City and Cnty. of
Honolulu, 76 Hawai#i 46, 57, 868 P.2d 1193, 1204 (1994) (quoting
Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975)
(Powell, J., concurring)).
In this case, the relevant legislative history
encompasses the 1998 enactment of HRS § 706-646 and the 2006
amendments to the statute.
1. 1998 Enactment of HRS § 706-646
In 1998, House Bill No. 2776 (H.B. 2776) was introduced
to “permit an order for restitution in a criminal case to be
enforceable as a civil judgment.” H. Stand. Comm. Rep. No. 683-
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98, in 1998 House Journal, at 1305. At that time, the collection
of restitution was consigned to governmental entities that were
only able to collect “a small fraction of the amount.” Id. The
legislation was also designed to provide restitution to victims
who were ineligible for compensation from the CVCC. See id.
(“Although the Criminal Injuries Compensation Commission helps
victims by providing some compensation, victims of property
crimes and some violent crimes are not eligible for any
compensation from the Commission.”). The proponents of H.B. 2776
acknowledged that “although a victim may bring a civil action
against the defendant, this process is costly and time
consuming.” Id. Therefore, the legislature proposed “that
victims should have a ‘fast track’ ability to be compensated for
their losses . . . using all of the civil collection remedies.”
Id.; see also S. Stand. Comm. Rep. No. 3008, in 1998 Senate
Journal, at 1224; Conf. Comm. Rep. No. 89, in 1998 Senate
Journal, at 780.
H.B. 2776, as initially proposed, expressly included
“wage loss” and the cost of “therapeutic treatment” in the
partial list of compensable losses contained in subsection 3.
However, the House Judiciary Committee removed those categories
from subsection 3 prior to the second reading of H.B. 2776. See
H. Stand. Comm. Rep. No. 683-98, in 1998 House Journal, at 1305-
06. The committee stated:
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[A]llowing restitution for therapy and wage loss presents
difficulty because these costs are often immeasurable.
While the value of stolen or damaged property, medical
expenses, and funeral and burial expenses can be determined
with specificity, costs of therapy, which can last for
months or years after the defendant is sentenced, are not.
Also, wage loss may be measurable if the victim has an
occupation at the time of the offense, but it becomes
difficult to determine if the victim is unemployed at the
time. Your Committee finds that this remedy is more
appropriate for the civil arena.
. . . .
Accordingly, your Committee has amended this bill by:
. . . .
(2) Not allowing for reimbursement of wage loss incurred by
the victim and cost of therapeutic treatment required by the
victim to recover from the psychological and emotional
effects of the offense in the restitution order.
H. Stand. Comm. Rep. No. 683-98, in 1998 House Journal, at 1305-
06. Despite these statements, the legislature did not amend H.B.
2776 to expressly provide that lost wages were not recoverable,
nor did it propose language that would have made subsection 3 an
exhaustive list. Rather, H.B. 2776, as initially amended,
appeared to encompass restitution for a broad scope of losses.
The Senate Ways and Means Committee attempted to
clarify the scope of H.B. 2776 by deleting the word “fully” from
subsection 3’s full compensation clause. See S. Stand. Comm.
Rep. No. 3008, in 1998 Senate Journal, at 1224 (explaining that
the Committee deleted the word “fully” “to clarify the legitimate
types of damages” that a victim could recover). It stated:
“Reimbursing the victim ‘fully’ for losses may be interpreted as
having an unlimited practical application, and allows for many
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legitimate types of damages that may require a more extensive
civil proceeding.” Id.; see also H. Stand. Comm. Rep. No. 683-
98, in 1998 House Journal, at 1305 (attempting to relegate wage
loss to the civil arena). Thus, the Senate Ways and Means
Committee’s amendment attempted to effectuate the House’s intent
to limit the scope of compensable losses contained in H.B. 2776.
However, when House and Senate representatives convened
in conference, the Conference Committee reinserted the word
“fully” into the statute. See Conf. Comm. Rep. No. 89, in 1998
Senate Journal, at 780-81 (“Your Committee on Conference has
amended this bill by: . . . . (2) Reinserting the word ‘fully’ in
section (3) of the new section 706- (Victim Restitution”)). The
Conference Committee explained that it reinserted the word
“fully” “so that restitution shall be a dollar amount sufficient
to reimburse any victim fully for losses.” Id. In light of the
purpose behind the House’s and the Senate’s previous amendments
to H.B. 2776, the Conference Committee’s reinsertion of the word
“fully” expresses the intent of both chambers to not
categorically exclude such losses as wage loss from the scope of
HRS § 706-646. See Demby v. Schweiker, 671 F.2d 507, 510 (D.C.
Cir. 1981) (explaining that a conference report that presents the
final statement of terms accepted by both houses is the most
persuasive evidence of legislative intent, next to the statute
itself). To the extent there is an alternative interpretation of
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the legislative history, it does not provide the “unmistakable
support” required to “justify a rejection of otherwise
unambiguous [statutory] language.”5 Richardson, 76 Hawai#i at
57, 868 P.2d at 1204.
2. 2006 Amendments to HRS § 706-646
The dissent focuses on the legislative history of the
original 1998 version of HRS § 706-646 to argue that the
legislature did not intend to allow recovery for “lost wages” in
a restitution award. Whatever the legislature may have stated in
1998, the 2006 amendments to Section 706-646 make it clear that
reasonable and verified lost wages must be included in a
restitution award when requested by a victim.
Section 22 of Act 230 of 2006 amended HRS § 706-646 as
follows:
SECTION 22. Section 706-646, Hawai#i Revised Statutes, is
amended by amending subsections (2) and (3) to read as
follows:
“(2) The court [may] shall order the defendant to make
restitution for reasonable and verified losses suffered by
the victim or victims as a result of the defendant’s
offense[.] when requested by the victim. The court [may]
shall order restitution to be paid to the crime victim
compensation commission in the event that the victim has
been given an award for compensation under chapter 351. If
the court orders payment of a fine in addition to
restitution or a compensation fee, or both, the payment of
restitution and compensation fee shall have priority over
5
The dissent erroneously ascribes the intent of the entire
legislature to a report from a single house committee that is contra-indicated
by the plain language of the statute. See Dines, 78 Hawai#i at 332, 893 P.2d
at 183 (“Statements by legislators or even committee reports need not reflect
the purpose which a majority of the legislators believed is carried out by [a]
statute.”).
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the payment of the fine, and payment of restitution shall
have priority over payment of a compensation fee.
(3) In ordering restitution, the court shall not consider
the defendant’s financial ability to make restitution in
determining the amount of restitution to order. The court,
however, shall consider the defendant’s financial ability to
make restitution for the purpose of establishing the time
and manner of payment. The court shall specify the time and
manner in which restitution is to be paid. Restitution
shall be a dollar amount that is sufficient to reimburse any
victim fully for losses, including but not limited to:
(a) Full value of stolen or damaged property, as
determined by replacement costs of like property, or the
actual or estimated cost of repair, if repair is possible;
(b) Medical expenses; and
(c) Funeral and burial expenses incurred as a result of
the crime.”
(Emphasis added). This amendment to HRS § 706-646 was one of
numerous proposed amendments to the Hawai#i Penal Code included in
the Report of the Committee to Conduct a Comprehensive Review of
the Hawai#i Penal Code (“Penal Code Review Committee”) Submitted
to the Twenty-third Legislature of the State of Hawai#i on
December 29, 2005. See S. Stand. Comm. Rep. No 3215, in 2006
Senate Journal, at 1557. According to this committee report, the
proposals of the Penal Code Review Committee were recommended for
adoption. Id.
Furthermore, according to the Comment of the Penal Code
Review Committee regarding the proposed amendments to the
restitution statute:
(1) The proposed amendments to subsections (2) and (3) make
it mandatory for the court to order a defendant to pay full
restitution for reasonable and verified losses suffered by
the victim of a crime when requested by the victim. An
informal request for restitution may be sufficient. The
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court is prohibited from considering the defendant’s
financial ability to make restitution in determining the
amount of restitution to order. The court, however, is
required to consider the defendant’s financial ability for
the purpose of establishing the time and manner of payment.
. . . .
Restitution serves two purposes: (1) to repay crime victims
for financial losses they have suffered as a result of
crimes, and (2) to help rehabilitate offenders by requiring
them to take responsibility for the consequences of their
actions. In 1975, the Legislature empowered courts to order
a convicted person to pay restitution. The committee report
accompanying the bill stated:
Reparation and/or restitution by wrongdoers to their victims
is basic to justice and fair play. The penal system should
not be excluded from this concept. Your Committee believes
that by imposing the requirement that criminal repay not
only “society” but the persons injured by the criminal’s
acts, society benefits not once, but twice. The victim of
the crime not only receives reparation and restitution, but
the criminal should develop or regain a degree of self
respect and pride in knowing that he or she righted, to as
great a degree as possible, the wrong that he or she had
committed. S.C. Rep. No. 425, 1975 House Journal at 1148.
The restorative justice envisioned by the Legislature in
enacting restitution laws has not been fully realized.
Under current law, courts cannot impose restitution unless
they determine that the offender can afford to pay it. This
determination is difficult to make at sentencing because
accurate information regarding the offender’s true financial
status is often unavailable and the offender’s future
earnings capacity is often unclear.
The proposed amendments would create a restitution system
similar to the federal Mandatory Victims Restitution Act
(MVRA), 18 U.S.C. §[sic]3663A-3664. Courts imposing
restitution pursuant to the MVRA must order full restitution
without consideration for the defendant’s economic
circumstances, but they are directed to consider the
defendant’s ability to pay in establishing a restitution
payment schedule.
Penal Code Review Committee, Final Report 27j (2005) (emphasis
added). Thus, the 2006 amendments removed a judge’s discretion
to award restitution, and made restitution mandatory for
“reasonable and verified” losses requested by a crime victim.
The Penal Code Review Committee report makes it clear
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that the amendments were intended to require “full restitution
for reasonable and verified losses,” and to “create a restitution
system similar to the federal Mandatory Victims Restitution Act
(MVRA), 18 U.S.C. §§ 3663A to 3664.” Id. at 27j-k. Section 3663
of the MVRA provides in pertinent part, as it did in 2006 and
2012 at the time of this sentencing:
(b) The order of restitution shall require that such
defendant–
. . . .
(2) in the case of an offense resulting in bodily injury to
a victim–
(A) pay an amount equal to the cost of necessary medical and
related professional services and devices relating to
physical, psychiatric, and psychological care, including
nonmedical care and treatment rendered in accordance with a
method of healing recognized by the law of the place of
treatment;
(B) pay an amount equal to the cost of necessary physical
and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a
result of such offense;
(Emphasis added). The proposed amendments to HRS § 706-646 of
the Penal Code Review Committee were adopted without change by
the Legislature. Thus, whatever the 1998 Legislature may have
said, in accordance with the clear language of the statute as of
2006, reasonable and verified lost wages are to be included in a
restitution award.
IV. CONCLUSION
For the foregoing reasons, we vacate in part the ICA’s
November 18, 2013 Judgment on Appeal, affirm the district court’s
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order of restitution as it relates to lost wages in the amount of
$1,155.00, and remand to the district court for further
proceedings consistent with this opinion and the remainder of the
ICA’s opinion.6
Artemio C. Baxa /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Audrey E. Stanley
(Jennifer D.K. Ng on the /s/ Sabrina S. McKenna
briefs) for respondent
6
The dissent asserts: “In this case, a court would have to
determine whether [the CW] incurred the same chair rent and business costs
during the time she could not work. Presumably, [the CW] would not have
incurred her ordinary inventory costs, and an order of restitution based on
gross receipts, instead of net income, would seemingly not represent her
actual loss.” Although this might be true in future cases, DeMello waived
these arguments by failing to raise them before the district court and the
ICA.
20 | 01-03-2023 | 11-02-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1249572/ | 143 Ga. App. 242 (1977)
237 S.E.2d 716
PINE VALLEY APARTMENTS LIMITED PARTNERSHIP et al.
v.
FIRST STATE BANK.
54174.
Court of Appeals of Georgia.
Argued July 11, 1977.
Decided September 9, 1977.
*246 Sanders, Hester, Holley, Askin & Dye, William J. Williams, for appellants.
Wallace H. Pilcher, for appellee.
QUILLIAN, Presiding Judge.
Pine Valley Apartments, a limited partnership, defendants below, appeal from the judgment of the trial court denying their motion for judgment notwithstanding verdict. Pine Valley was formed for the purpose of constructing and operating an HUD apartment complex in Jefferson County, Georgia. On December 26, 1972 they executed and delivered to Kentucky Mortgage Company, a security deed and promissory note for $678,000 at 7% interest. The note was payble by payment of interest only from January 1973 until January 1974, and thereafter interest and principal until December 2013. The apartment complex and construction funding were scheduled for completion on September 28, 1973. Kentucky Mortgage assigned the note and security deed to First State Bank of Wrens, Georgia.
The nine months construction loan commitment expired and the apartment complex was far from complete. First State Bank called in the partners and a "Memorandum of Agreement," dated October 9, 1973 was executed which provided in part: "Whereas, the Bank was committed to advance funds to the Partnership for the completion of a housing project ... and Whereas, said commitment expired on September 28, 1973. Now, Therefore, to induce the Bank to make the Partnership an additional advancement of $76,729.90, and to further induce the Bank to make an advancement of $____ around November 1, 1973, the Partnership *243 hereby agrees as follows:
1. The Partnership shall pay to the Bank the full indebtedness evidenced by said note and secured by said security deed including accrued interest at seven (7) per cent by November 30, 1973.
2. The Partnership further agrees that if for any reason whatsoever it fails or is unable to pay said note and security deed by November 30, 1973, that the Partnership will contribute and pay to the Bank such sums as to equal the difference between the (7) per cent interest called for in said note and 13 per cent interest which the Partnership acknowledges is the customary normal and prevailing rate of interest charged by lenders for construction loans at this time."
The bank advanced only the $76,729.90 and no other funds were requested by Pine Valley. Pine Valley did not repay the entire loan and note by November 30. First State Bank then assigned the note and security deed to Kentucky Mortgage and received the principal amount and 7% interest. Then they brought this action for the additional 6% interest called for in the "Memorandum of Agreement" for the period from December 1, 1973 until repayment of the loan. The jury found for the plaintiff bank in the amount of $56,751.66. The trial court refused Pine Valley's motion for judgment n.o.v. and they bring this appeal. We affirm. Held:
Pine Valley contends the "Memorandum of Agreement" is not enforceable. They argue that it is not a promissory note, a renewal of the original promissory note, or a novation. They further argue that if it is a contract, is it severable from the original promissory note, and if so it is in an incomplete instrument, not providing for consideration, and unenforceable because "the amount of money involved" is not included in the incompleted space. They consider AA Music Service v. Walker, 221 Ga. 46 (142 SE2d 800) and George v. Cigarette Service Corp., 219 Ga. 189 (132 SE2d 80) to control the result that should be reached in this case. We find both cases distinguishable and inapposite.
The memorandum of agreement contains all the essentials of a contract. See Code § 20-107. Consideration is present. The plaintiff bank was induced to advance *244 $76,729.90 that would not have been forthcoming under the old agreement as the loan commitment term had expired on September 28, 1973. Neither do we consider the incomplete portion referring to any additional advancement to be fatal to the instrument.
It is evident that both parties intended for additional advancement of monies to be supplied if necessary. The record does not reveal that any additional advance of monies was requested. We consider this instrument to be a fully executed contract. Blanks in instruments may be rejected as surplusage if the parties so intended, and that intent must be gathered from the surrounding circumstances attending the complete transaction. See 17 CJS 742, Contracts, § 65. The issue of intent here was submitted to the jury. They found for the plaintiff. There is sufficient evidence of record to support the finding that the option of the borrowers to request and receive additional funds was never exercised.
A contract which, by its terms, is too uncertain, vague, and indefinite, to authorize the grant of the relief sought, is unenforceable. AA Music Service v. Walker, 221 Ga. 46, supra. However, "[e]ven though the parties have expressed an agreement in terms so vague and indefinite as to be incapable of interpretation with a reasonable degree of certainly, they may cure this defect by their subsequent conduct (p. 453) ... Actual performances under a general indefinite arrangement may ... make the general arrangement an enforceable contract." 1 Corbin on Contracts 453, 457, § 101. Professor Corbin goes further and states: An "agreement that is unenforceable against either promisor by reason of the vagueness ... has been held to become enforceable ... when the party making the vague promise renders a definite and complete performance." 1 Corbin on Contracts 614, § 143.
Georgia law, though not as explicit, comports with Professor Corbin's assessment. This court held in Mimms v. Betts Co., 9 Ga. App. 718 (1) (72 S.E. 271), that even though a contract "may be lacking in mutuality or definiteness, on account of the uncertainty ... still when that party has ... entered into performance of the contract, and the other party has accepted ... as fulfilling the terms of the proposal, the contract becomes mutual, *245 binding, and enforceable." Accord, Self v. Smith, 98 Ga. App. 876, 882 (107 SE2d 721); cf. McMurray v. Bateman, 221 Ga. 240, 253 (144 SE2d 345). "The law leans against the destruction of contracts on the ground of uncertainty." Pierson v. General Plywood Corp., 76 Ga. App. 853, 855 (47 SE2d 605). This appears to be the general rule. "A contract which is originally and inherently too indefinite may later acquire precision and become enforceable by virtue of the subsequent acts, words, or conduct of the parties ... Thus, the objection of indefiniteness may be obviated by performance and acceptance of performance." 17 AmJur2d 418, Contracts, § 78. The Supreme Court, taking a pragmatic approach, in Harris v. Amoskeag Lumber Co., 97 Ga. 465 (25 S.E. 519), held that although the two parties attempted to contract by correspondence, they "did not, however, quite accomplish this result ... although it is manifest from the evidence as a whole that both parties treated this correspondence as a complete and binding contract between them, and that the defendant acted upon it by taking and using the timber ..." Id. p. 466. They concluded: "Upon the strength of the correspondence, the defendants cut and used the timber, and they ought to pay for it at the price mentioned in the letters (there being no disagreement as to price)..." Id. p. 471.
The same rationale applies in this case. Both parties left a part of the contract incomplete to permit the defendants to borrow additional funds. Having received the funds contracted for and not applying for more, the contract being executed without any disagreement as to price, any indefiniteness was cured by complete performance, and having received the benefits under the contract defendant should pay the sum he contracted to pay.
We find no merit to defendants' enumerations of error.
Judgment affirmed. Shulman and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249574/ | 237 S.E.2d 561 (1977)
Joann Snyder LINDSEY
v.
Samuel L. LINDSEY.
No. 7626DC956.
Court of Appeals of North Carolina.
October 5, 1977.
*563 Thomas R. Cannon, Charlotte, for the plaintiff.
Francis O. Clarkson, Jr., and Stephen D. Poe, Craighill, Rendleman & Clarkson, Charlotte, for the defendant.
BROCK, Chief Judge.
A judgment awarding alimony and child support is a judgment directing the payment of money, generally in future installments. When the obligor under such judgment is in arrears in the periodic payment of the alimony and child support the court may, upon motion in the cause, judicially determine the amount then properly due and enter its final judgment for the total then properly due, and execution may issue thereon. See Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204 (1940). However, periodic sums of alimony and child support which became due more than 10 years before the institution of this motion in the cause for a judicial determination of the amount due are barred by the ten year limitation of G.S. 1-47. Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212 (1900). Statutes of limitation run as well between spouses as between strangers. Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708 (1965). Plaintiff's argument that G.S. 1-306 provides that there shall be no statute of limitations to bar alimony misses the point. G.S. 1-306 excepts "any judgment directing the payment of alimony" from the provision that execution may not issue on a judgment requiring "the payment of money ... at any time after ten years from the date of the rendition thereof". The decree for periodic payments of alimony and support, in the absence of a provision in the decree itself which constitutes it a specific lien upon the property of the obligor, is not enforceable by execution until the arrears are reduced to judgment by a judicial determination of the amount then due. G.S. 50-16.7(i). See, 2 Lee, N.C. Family Law, § 165, p. 270. This is so because the decree for alimony and support may be modified as circumstances may justify.
It seems from a reading of plaintiff's motion and from a reading of the judgment from which this appeal was taken that the trial judge took into consideration payments which became due more than ten years before the filing of this motion in the cause.
Diane Lindsey reached her eighteenth birthday on 27 June 1970. She lived with defendant from January 1969. Defendant is entitled to have his obligation to plaintiff reduced by $43.00 per month beginning January 1969 and continuing to 27 June 1970 because Diane was living with him, and is entitled to have it reduced by $43.00 per month thereafter because she attained her majority. It does not appear *564 from the judgment that such reduction was allowed.
Scott Lindsey will not reach his eighteenth birthday until 2 September 1978. However, Scott lived with defendant from August 1970 until 1 November 1974. Defendant is entitled to have his obligation to plaintiff reduced by $43.00 per month beginning in August 1970 and continuing to 1 November 1974 because Scott was living with him. It does not appear from the judgment that such reduction was allowed.
Plaintiff was remarried on 10 February 1973. At the time of her remarriage the alimony and child support payments were required by the order dated 10 March 1965, which was not a consent decree. "If a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate." G.S. 50-16.9(b). It does not appear from the judgment that the trial judge took into consideration the termination on 10 February 1973 of plaintiff's right to alimony.
Defendant's argument that plaintiff is barred by laches from pursuing payments which became due within ten years next preceding the filing of this motion in the cause is untenable.
Defendant's argument that Diane, having reached her majority, is the only person who can assert a claim for any delinquency in the payment of the $43.00 per month for her support is likewise without merit. The plaintiff provided for the support of Diane until Diane went to live with defendant. Plaintiff is entitled to be reimbursed by defendant to the extent of the $43.00 per month defendant was obligated to pay.
The trial judge awarded judgment against defendant for counsel fees to plaintiff's counsel. However he failed to make sufficient findings of fact upon which it can be determined that the allowance was reasonable. See, Austin v. Austin, 12 N.C.App. 286, 296, 183 S.E.2d 420, 427 (1971). Additionally, with respect to the child support portion of the judgment, G.S. 50-13.6 requires that reasonable attorney fees may be ordered only when it is determined that plaintiff had "insufficient means to defray the expense of the suit." No such determination was made by the trial court.
For the failure of the trial judge specifically to exclude from consideration those payments which became due more than ten years before the filing of this motion in the cause; for the failure of the trial judge to specifically reduce defendant's obligations to pay plaintiff for the support of the children while they were living with him; for the failure of the trial judge specifically to reduce defendant's obligation to pay plaintiff for the support of Diane after she became eighteen on 27 June 1970; for the failure of the trial judge specifically to take into consideration the termination under G.S. 50-16.9(b) of plaintiff's right to alimony; and for the failure of the trial judge to find sufficient facts to support an order for defendant to pay plaintiff's counsel fees, the judgment entered must be vacated in its entirety and this cause remanded for a new hearing.
Judgment vacated.
Cause remanded.
BRITT and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249581/ | 143 Ga. App. 48 (1977)
237 S.E.2d 515
SHIELD INSURANCE COMPANY
v.
KITT et al.
54023.
Court of Appeals of Georgia.
Argued June 6, 1977.
Decided July 11, 1977.
Rehearing Denied July 27, 1977.
Spivey & Carlton, J. Franklin Edenfield, for appellant.
Surrett, Thompson, Bell, Choate & Walker, J. Samuel Choate, Jr., John C. Bell, Jr., for appellees.
MARSHALL, Judge.
Appellant, Shield Insurance Company, appeals the declaratory judgment of the trial judge sitting without a jury in favor of the appellees, Mr. and Mrs. Kitt, concluding that the appellant as insurer waived, or was estopped to invoke, the notice requirements of uninsured motorist coverage contained in a policy of insurance following the death of the Kitts' three-year-old daughter caused by a drunken and uninsured driver.
The unusual facts of this case are that Mr. Kitt had automobile insurance with appellant, Shield Insurance Co. Mr. Kitt's insurance dealings were, and had been for five years, with the local agent of Shield Insurance Co. The policy of insurance provided for uninsured motorist coverage, and required that the insured give the insurer notice of an accident not later than 60 days following the accident. By the terms of the contract, the giving of notice within the requisite time was "a condition precedent to the existence of any coverage under this policy and of the company's obligation to defend any claim..."
On August 15, 1975, a drunken driver drove into a group of children and killed the Kitts' three-year-old daughter. That same day, Mr. Kitt was informed that the driver probably was uninsured. Four days later, on August 20, 1975, either Mr. or Mrs. Kitt appeared at the office of the appellee's agent, and paid the monthly premium on the automobile insurance policies issued to the Kitts by the appellant. Such premiums were paid *49 twice again on or before October 1, 1975. On one of these occasions Mr. Kitt informed the agent, "I came to pay my insurance because Mr. Freeman [the uninsured motorist causing the death of the child] ran over my daughter and had no insurance." The trial court also found that the agent had read of the accident, and was aware that the child had been killed. The trial court found as a fact, and it is apparent, that neither the father nor the agent was aware that the provisions of the policy cover uninsured motorists under such a circumstance as that involved in the death of the child. As a result, the father did not make any immediate effort to file a claim against the appellant, though certain expenses were in fact paid by the appellant at a later date. The first formal notice of claim occurred 123 days after the accident, when a copy of a complaint against Mr. Freeman was served upon the appellant. The appellant then sought this declaratory judgment to determine if it was required to answer or defend under the uninsured-motorist provisions of the policy. The trial judge found in a clearly reasoned finding of facts that the appellant through its agent was aware of the accident within the 60-day notice period, and that the agent was under an equitable obligation or duty to act upon the information and to inquire further so as to establish the existence of a claim under the policy. Relying upon Code § 37-116 and Interstate Life &c. Co. v. Wilson, 52 Ga. App. 171, 177 (183 S.E. 672) (1935), the judge held that, because of the "attention-exciting" nature of the information furnished by Mr. Kitt, the appellant was estopped to deny the timely receipt of notice of the occurrence giving rise to the claim, and consequently of the claim itself. The appellant enumerates as error, upon several grounds, these findings of the trial judge. Held:
There can be no question that the appellant through its agent was aware that an accident involving a member of the family of one of its insureds had been killed, and that the accident involved an uninsured motorist. It is equally certain that neither the insured nor the insurer initially was aware that the accidental death was covered by the uninsured-motorist provisions of a policy issued by the appellant. Finally, it is clear that a claim, as such, for *50 the wrongful death was not submitted until the 123rd day, long after the 60-day notice requirement of the pertinent policies.
We first reach a conclusion that the notice provisions of the policy were intended to require, not simply that an accident had occurred, but that the insured place the insurer on notice (1) that an accident had occurred, and (2) that the insurer could expect a claim to be forthcoming either from or against the insured. For instance, in a situation in which damages of less than $100 were incurred and the insured had $100-deductible protection, it hardly can be gainsaid that acquainting an insurance agent of such an accident is the placing of a claim against the insurer. Thus, merely acquainting the agent in this case of an accident, was not the same as giving notice of a claim, particularly where the evidence is undisputed that the insurer consciously did not intend to file a claim until after the 60-day period required by the policy had expired.
Nevertheless, we must decide whether the "attention-exciting" information that a death had resulted through the negligence of an uninsured motorist, required the agent to examine the policy and determine that the accident indeed was covered by the policy and constituted a claim. This involves a question of the applicability of constructive, as opposed to actual, knowledge. It is well settled that an insurance company is charged with knowledge of all pertinent facts which have come to the knowledge of its duly authorized agents; and, thus, notice to an agent is notice to the principal. This is implied actual notice, and actual notice to the agent is imputed to the principal; but the rule does not include implied constructive notice, and charge the principal with implied knowledge of facts which the agent might, in the exercise of ordinary care, have acquired, but did not in fact possess, because he did not use ordinary diligence. Wiley v. Rome Ins. Co., 12 Ga. App. 186, 188 (76 S.E. 1067) (1912). Because actual knowledge is required, it has been held that the provisions of Code § 37-116 have no application to the subject of waiver, as related to conditions imposing forfeitures in contracts of insurance. Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 629 (174 SE2d 570) (1970) and cits. It has further been held that *51 the application of presumptive knowledge as a matter of law is error of such magnitude as to require a new trial. Penn. Mut. Life Ins. Co. v. Blount, 37 Ga. App. 756 (1) (142 S.E. 183) (1928).
The conclusions above stated are consistent with the principles that notice provisions in an insurance contract are binding and are conditions precedent to an action against the insurer when so provided in the insurance policy. Corbin v. Gulf Ins. Co., 125 Ga. App. 281 (2) (187 SE2d 312) (1972). Further, investigation of a possible loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim, does not constitute waiver. Ga. L. 1960, pp. 289, 671 (Code Ann. § 56-2428 (3)); Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697 (2e) (172 SE2d 159) (1969).
Appellate courts will labor to retain intact, verdicts returned by juries or by a judge sitting without a jury. However, we are also duty bound to be just, before we are generous. Penn. Millers Mut. Ins. Co. v. Heule, 140 Ga. App. 851, 854 (232 SE2d 267) (1976). Therefore, based upon the foregoing, we must conclude that the trial judge erred in holding in his declaratory judgment that constructive knowledge of a claim was imputable to the agent. It follows that the appellant was not estopped to deny that it had notice of the claim within the 60-day notice period required by the policy as a condition precedent to a claim against the appellant.
Judgment reversed. Webb, J., concurs. Deen, P. J., concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249583/ | 844 P.2d 923 (1992)
117 Or. App. 495
STATE of Oregon, Respondent,
v.
Richard Lee ANDERSON, Appellant.
91CR-0090; CA A69547.
Court of Appeals of Oregon.
Argued and Submitted April 30, 1992.
Decided December 30, 1992.
*924 Alan H. Biedermann, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael M. Pacheco, Asst. Atty. Gen.
Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.
DEITS, Judge.
Defendant appeals his conviction for driving under the influence of intoxicants. ORS 813.010.[1] He argues that the trial court erred in giving the "Miles instruction"[2] to the jury. We affirm.
On December 31, 1990, at approximately 10:00 p.m., State Trooper Pearson saw defendant riding a motorcycle and stopped him, because he was speeding and weaving in his lane. He noted that defendant's speech was slow and slurred, that his eyes were watery and bloodshot and that his breath had a strong odor of alcohol. Pearson asked him if he had been drinking. Defendant said that he had drunk four pints of beer before he left a nearby tavern. He also told Pearson that he had taken "anti-schizophrenic medication" (serentil and lithium) earlier that day. Pearson asked him if his doctor had cautioned him about the effects of the medication combined with alcohol. He said that his doctor told him not to drink "to excess" while taking the medication. Defendant performed poorly on the field sobriety tests, and he was arrested for driving under the influence of intoxicants. An intoxilyzer test showed that his blood alcohol level was.07%.
Defendant assigns error to the trial court giving this instruction:
"Now if you find from the evidence that [defendant] was in such a physical condition that he was more susceptible to the influence of intoxicants than he would otherwise be, and as a result of being in that physical condition that he became under the influence by a lesser quantity of intoxicants than it would otherwise take, he is nevertheless under the influence of intoxicants."
Defendant, relying on State v. Huck, 100 Or.App. 193, 785 P.2d 785 (1990), argues that the instruction was erroneous, because there was insufficient evidence to support an inference that the anti-schizophrenic medication made defendant more susceptible to the effects of alcohol than he otherwise would have been.
Generally, a party is entitled to have any theory of the case presented to the jury, if there is some evidence to support it. State v. Brown, 306 Or. 599, 602, 761 P.2d 1300 (1988). In State v. Huck, supra, we held that giving the Miles instruction was error, because there was no evidence that the medication that the defendant was taking made him more susceptible to the effects of alcohol than he otherwise would have been. 100 Or.App. at 197, 785 P.2d 785.
Here, there is evidence that defendant's medication made him more susceptible to the effects of alcohol. Defendant told Pearson that his doctor had cautioned him about drinking to excess while taking the medication. Pearson testified that, on the *925 basis of his observations, he believed that defendant was under the influence of a combination of alcohol and the anti-schizophrenic medication. Defendant's mother also testified that she had witnessed the effects that serentil sometimes had on her son and that, although it did not seem to affect him adversely in regular dosages, in larger doses it caused him to lose motor function and made it impossible for him to read. That evidence is sufficient to support giving the Miles instruction, because it provided a basis on which the jury could conclude that taking the medication increased defendant's susceptibility to the effects of alcohol.
Affirmed.
NOTES
[1] ORS 813.010 provides, in part:
"(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
"* * * * *
"(b) Is under the influence of intoxicating liquor or a controlled substance; or
"(c) Is under the influence of intoxicating liquor and a controlled substance."
[2] State v. Miles, 8 Or.App. 189, 492 P.2d 497, rev. den. (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249584/ | 237 S.E.2d 777 (1977)
Kenneth Wayne WOODFIN
v.
COMMONWEALTH of Virginia.
Record No. 761444.
Supreme Court of Virginia.
October 7, 1977.
*778 Michael Morchower, Richmond (John W. Luxton, Ott, Morchower, Thompson & McMullan, Richmond, on brief), for plaintiff in error.
Jim L. Chin, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
PER CURIAM.
Convicted by a jury of possession of cocaine, Kenneth Wayne Woodfin was sentenced by final order entered July 1,1976 to five years in the penitentiary. Defendant challenges the sufficiency of the evidence.
On January 28, 1976, police officers executed a search warrant at Apartment 4, Belmonte Court, Ettrick, Virginia, an apartment leased to Mrs. Lois Harris. No one was present when the officers entered. They observed on the floor in the living room, "leaning against the wall", three framed "certificates" or "diplomas" bearing defendant's name. In a dresser in the master bedroom they found an envelope addressed to Mrs. Harris, a jewelry sales slip in defendant's name but signed by Harris on the "ordered by" line, and an envelope addressed to "Mr. K. W. Worlfin, 1411 Halifax Street, Petersburg, Virginia". Under the mattress in the master bedroom they discovered a pistol and a tin foil package containing 15 grams of cocaine. Clothing for both men and women was hanging in the master bedroom closet. The pockets contained no contraband or identification data. The officers "didn't check the garments. . . to determine the size." Children's clothing was found in a second bedroom.
While the officers were in the apartment, two men knocked on the front door and, receiving no response, entered through the rear patio door. The officers did not know whether that door was unlocked or was opened with a key. One of the men was Mrs. Harris's cousin. The other, defendant's stepbrother, "wanted to know where his brother was." Shortly thereafter, a third man came into the apartment and was interrogated by the police.
An officer attached to the Petersburg Police Department testified that he had known defendant for five years; that he had often seen him at 1411 Halifax Street, the residence of one of defendant's relatives; that he had seen defendant and Mrs. Harris together on three occasions; that several times he had seen defendant alone driving Mrs. Harris's car and once had followed him to her apartment building; and that he had seen him enter that building one night and walk in the direction of her apartment.
Mrs. Harris's neighbor "across the hall" testified that Mrs. Harris had "male visitors occasionally"; that defendant and Mrs. Harris had "started [going together] two or three weeks before Thanksgiving [1975]"; that defendant had been in Mrs. Harris's apartment several times when she visited there; that she saw him there some time during the week preceding the search but not on the day of the search; that "I don't think he stayed there"; and that "I took him to be a visitor just like I was."
*779 Defendant was convicted of a violation of the statute which provides that "[i]t is unlawful for any person knowingly or intentionally to possess a controlled substance. . . ." Code § 18.2-250 (Repl. Vol.1975). Such possession may be exclusive or joint, actual or constructive, and constructive possession may be shown by evidence establishing that the contraband was subject to defendant's dominion or control. Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970).
The Commonwealth maintains that the evidence was sufficient to show "a joint constructive possession of the bedroom and the contents therein." We disagree.
Defendant had no proprietary interest in the apartment and, apparently, the mailing address he used was that of a relative in a nearby city. Even so, the Commonwealth contends that the circumstantial evidence supported an inference that defendant lived in the Harris apartment. Given the facts that defendant and Mrs. Harris had been seen together, in and out of her apartment, over a period of two months and that defendant had been seen driving her car, the Commonwealth says that the presence of men's clothing in her apartment indicated that she and defendant had been living there together. But Mrs. Harris's neighbor testified that Mrs. Harris had received "male visitors occasionally". Obviously, the three men who arrived while the search was in progress had ready access to the apartment and considered themselves privileged to enter. The articles of clothing were never described, the pockets contained no identification data, the sizes were never determined, and, so far as the evidence discloses, the clothing could have belonged to Mr. Harris or to any of a number of Mrs. Harris's male acquaintances.
Clearly, defendant's brother expected to find him at the apartment, but his inquiry does not prove that he thought defendant lived there. Defendant's diplomas and the jewelry sales slip do not prove that he lived where they were found. The diplomas, "leaning against the wall" on the living room floor, were not displayed in the manner a resident would customarily display them. The sales slip and the envelope addressed to Mrs. Harris prove nothing more than that Mrs. Harris made a purchase in defendant's name and that the apartment was her residence.
The evidence shows that defendant was present in the Harris apartment on several occasions, once during the week preceding the search. There was utterly no evidence, however, that he spent a night there or, for that matter, that he ever entered the bedroom where the contraband was found.
We hold that the evidence was insufficient to establish that the cocaine was subject to defendant's dominion or control or "to show that defendant was aware of the presence and character of the particular substance". Ritter v. Commonwealth, supra. The judgment will be reversed and the case remanded for a new trial, if the Commonwealth be so advised.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249589/ | 143 Ga. App. 124 (1977)
237 S.E.2d 658
PERKINS
v.
THE STATE.
53757.
Court of Appeals of Georgia.
Argued April 5, 1977.
Decided July 15, 1977.
Rehearing Denied July 29, 1977.
Calhoun A. Long, for appellant.
J. W. Bradley, Assistant District Attorney, for appellee.
SMITH, Judge.
Perkins appeals from the trial court's denial of his double jeopardy plea. We find that a prior conviction does bar this prosecution, and we therefore reverse.
On July 31, 1975, an arrest warrant was issued for Perkins on account of his April 24, 1975, sale of more than an ounce of marijuana to an undercover agent. In the State Court of Clayton County on October 15, 1975, Perkins, without an attorney, pled guilty to a charge that on April 24, 1975, he unlawfully possessed less than an ounce of marijuana. The state court imposed a $50 fine and "first offender treatment ... for a period of twelve months." On September 25, 1975, in the Superior Court of Clayton County Perkins was indicted for the April 24, 1975, unlawful sale of more than an ounce of marijuana. On April 26, 1976, Perkins pled that the superior court prosecution was barred by the prior state court conviction. For the court's reliance in ruling upon his plea, Perkins' attorney and the assistant district attorney stipulated as true that "the defendant in this case is the same person" as the defendant in the state court case and that both cases "arose out of the same transaction, the same criminal conduct, and are based upon the same material facts." On September 9, 1976, the superior court overruled Perkins' *125 plea on the ground that the state court lacked jurisdiction of the matter and its sentence thus was "void and of no effect." It is undisputed that Perkins was serving the state court sentence and complying with the imposed probation at the time he made his plea and that he continued to do so.
In State v. Estevez, 232 Ga. 316 (206 SE2d 475), the Supreme Court emphasized the dual aspects of the double jeopardy proscription, set out in Code §§ 26-505, 26-506, and 26-507. First of all, there are restrictions upon multiple prosecutions arising out of the same criminal conduct. Second, there are restrictions upon multiple convictions arising out of the same criminal conduct. Estevez was convicted of illegal possession and illegal sale of cocaine, two crimes, both stemming from the same conduct. The Supreme Court found that, since the evidence proving sale was the only evidence showing possession, the possession conviction was violative of the double jeopardy bar of Code § 26-506 (a) (1). In this case, as stipulated by the parties and analogous to the situation in Estevez, the only evidence showing sale is that used to convict Perkins of possession. Therefore a conviction of Perkins for sale of marijuana would be barred. Code § 26-506 (a) (1). See also Manis v. State, 135 Ga. App. 71 (217 SE2d 396).
In Keener v. State, 238 Ga. 7, 8 (230 SE2d 846), the Supreme Court anticipated such a case as this one: "... the bar to multiple convictions may have a procedural aspect where the crimes arising out of the same criminal transaction are tried separately. Where crimes are tried separately it is generally held that if multiple convictions arising out of a single prosecution are barred they will likewise be barred from successive prosecution. Therefore when crimes are to be prosecuted separately the more serious known crimes should be prosecuted first to avoid the conviction of a lesser crime barring a subsequent prosecution for a more serious crime." See Brown v. Ohio, ___ U. S. ___ (Case No. 75-6933, decided June 16, 1977), which supports the Supreme Court's reasoning in Keener. Perkins' prior conviction of possession thus bars any prosecution for sale.
The superior court's holding that the prior prosecution was void because the state court lacked jurisdiction *126 is erroneous. It may be true that the affiant for the warrant alleged that the defendant sold more than an ounce of marijuana and therefore of necessity possessed more than an ounce, a felony. But the fact remains that this defendant was tried and convicted under a proper accusation for possession of less than an ounce, a misdemeanor which was within the jurisdiction of the State Court of Clayton County. Even though the evidence in a case indicates a felony was committed, prosecuting authorities because of weak proof or whatever other reason may very well elect to try the defendant in state court for a misdemeanor included within that felony. The fact that they have so proceeded will not deprive the state court of jurisdiction; therefore under Brown v. Ohio, supra, any further prosecution is barred.
Judgment reversed. Bell, C. J., and McMurray, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249590/ | 844 P.2d 1203 (1992)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Aaron Quinn MARTINEZ, Defendant-Appellant.
No. 91CA1266.
Colorado Court of Appeals, Div. V.
June 4, 1992.
Rehearing Denied July 16, 1992.
Certiorari Denied February 1, 1993.
*1204 Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge NEY.
Defendant, Aaron Quinn Martinez, appeals from the sentence imposed following the entry of his guilty pleas to one class 6 felony, two misdemeanors, and a traffic offense. We affirm.
As the result of an incident in which defendant, while intoxicated, stole two motor vehicles and broke into a third, he was charged with three felony offenses, four misdemeanor offenses, and two traffic offenses. He subsequently entered guilty pleas to an added class 6 felony, two of the misdemeanor counts, and one traffic offense. The remaining charges were dismissed.
Defendant was sentenced to a ten-year term of probation for the class 6 felony and one-year probation on each of the misdemeanor counts, which were ordered to run concurrently. He was further ordered to pay restitution in excess of $3,500 for the *1205 damage he caused to several of the vehicles.
I.
Defendant first contends the court exceeded its jurisdiction in imposing a ten-year sentence to probation. He maintains that under the statutory scheme, the maximum term of a sentence to probation may not exceed the maximum term of imprisonment for the crime committed. We disagree.
Three separate sentencing statutes are involved in our analysis of defendant's claim. Section 16-11-101(1)(a), C.R.S. (1986 Repl.Vol. 8A), which lists a sentencing court's various sentencing options, provides in pertinent part:
(1) Within the limitations of the penalties provided by the classification of the offense of which a person is found guilty, and subject to the provisions of this title, the trial court has the following alternatives in entering judgment imposing a sentence:
(a) The defendant may be granted probation unless the offense of which he is convicted makes him ineligible for probation....
The power of the court to impose a sentence to probation is described specifically in § 16-11-202, C.R.S. (1986 Repl.Vol. 8A). That statute provides:
When it appears to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, the court may grant the defendant probation for such period and upon such terms and conditions as it deems best.
Finally, § 18-1-105(1)(a)(IV), C.R.S. (1991 Cum.Supp.) lists the minimum and maximum authorized presumptive range penalties applicable to those persons who have committed a felony on or after July 1, 1985. As is pertinent here, the presumptive range penalty for a class 6 felony such as the one to which defendant entered a guilty plea is one to two years imprisonment.
The primary task of an appellate court in construing a statute is to discern the intent of the General Assembly. Words and phrases must be given effect according to their plain and ordinary meaning, and the statute should be interpreted in such a way as to give sensible effect to all its parts. People v. District Court, 713 P.2d 918 (Colo.1986).
Statutes should be interpreted, if possible, to harmonize and give meaning to other potentially conflicting statutes. People in Interest of D.L.E., 645 P.2d 271 (Colo.1982). If statutory language is clear and the legislative intent appears reasonably certain, there is no need to resort to other rules of statutory construction. In Interest of R.C., 775 P.2d 27 (Colo.1989). However, in the event that the meaning of one or more statutes is in dispute, a court must consider the results of the construction urged. People in Interest of K.M.J., 698 P.2d 1380 (Colo.App.1984).
Applying these rules of statutory construction here, we conclude that the sentencing court did not exceed its jurisdiction in imposing a ten-year probationary term. We initially note that sentences to imprisonment are governed by § 16-11-301 through § 16-11-310, C.R.S. (1986 Repl.Vol. 8A), and are expressly subject to the provisions of § 18-1-105, C.R.S. (1986 Repl.Vol. 8B), with respect to the length of imprisonment for various offenses. In contrast, a sentence to probation is governed by § 16-11-201 through § 16-11-213, C.R.S. (1986 Repl.Vol. 8A). People v. Flenniken, 749 P.2d 395 (Colo.1988). Those statutory provisions contain no express reference to § 18-1-105, C.R.S. (1986 Repl.Vol. 8B). Hence, a reasonable interpretation of these statutes is that the terms of § 18-1-105, C.R.S. (1986 Repl.Vol. 8B) do not apply to sentences to probation and that the statute, therefore, in no way limits the duration of a probationary term. See People v. Flenniken, supra.
Defendant argues, however, that the introductory language in § 16-11-101(1)(a), C.R.S. (1986 Repl.Vol. 8A) sufficiently connects Article 1, Part 1 of Title 16 to the sentencing term limitations in § 18-1-105, C.R.S. (1986 Repl.Vol. 8B). This argument has been specifically rejected in People v. *1206 Flenniken, supra. In that case, our supreme court determined that adoption of defendant's interpretation would render the express limitations in §§ 16-11-101(1)(b) and 16-11-302, C.R.S. (1986 Repl.Vol. 8A) mere surplusage.
Moreover, the policy reasons for not limiting a term of probation to the maximum presumptive term of incarceration as set out in People v. Flenniken, supra, are equally applicable to defendant's claim that a term of probation not exceed the maximum aggravated range term of incarceration.
The purposes underlying incarceration and a term of probation are fundamentally different. The former is primarily punitive, while the primary goal of probation is rehabilitation.
There is no reason to believe that the legislature's judgment concerning an appropriate term of punishment by imprisonment was intended to fix, or is even related to, the term of probation that may be required to rehabilitate the offender. There may be many cases in which the goals of probation simply cannot be achieved within the time constraints the legislature has placed on imprisonment.
People v. Flenniken, supra.
Probation is a sentencing alternative that a defendant applies for and is either granted or denied by the trial court. A defendant who objects to the terms of probation is free to reject the imposition of probation. People v. Rollins, 771 P.2d 32 (Colo.App.1989).
Finally, there is support in the legislative history for our conclusion that there is no term limitation for probation. Prior to 1972, a term of probation for a felony could not exceed five years. C.R.S.1963, 39-16-6(1). This five-year limitation was deleted from the statute in 1972 when the new Colorado Code of Criminal Procedure was enacted. See Colo.Sess.Laws 1972, ch. 44, § 39-11-202 at 242; People v. Flenniken, supra. No ceiling has since been added to the probation statute. We must, therefore, conclude that the General Assembly chose not to impose an express limitation on the duration of a term of probation.
Accordingly, we conclude that the maximum sentence in the aggravated range, as set out in § 18-1-105, C.R.S. (1986 Repl.Vol. 8B), does not establish the maximum period of probation to which a defendant may be sentenced.
II.
A.
Defendant also contends that the sentencing court's interpretation of § 16-11-201, C.R.S. (1986 Repl.Vol. 8A) rendered the statute unconstitutionally vague and, hence, violative of due process of law. Although defendant maintains that his arguments focus on the unconstitutionality of the statute as applied to him, we construe each of defendant's arguments as facial challenges of the constitutionality of the statute. Therefore, we decline to consider this issue because it is outside our statutory authority. Section 13-4-102, C.R.S. (1987 Repl.Vol. 6A).
B.
Defendant next contends that the sentencing court's interpretation of § 16-11-201, C.R.S. (1986 Repl.Vol. 8A) violated his equal protection rights as a result of the manner in which it was applied. Defendant does not argue that the statute itself is unconstitutional as a violation of equal protection. He argues, however, that in this case, the basis for the court's imposition of a ten-year probationary term was defendant's inability to pay the restitution owing in a shorter period of time. Defendant maintains that he was punished more severely for his offense simply because he was poor and unable to make the restitution payments in a shorter period of time. We are not persuaded.
Equal protection does not require that a defendant receive a sentence identical to sentences received by all other felons who have committed the same class of felony. Rather, equal protection requires only that the minimum and maximum sentences imposed by the statute are the same for all *1207 persons charged with the same or similar offenses. Individual treatment of each defendant within the parameters of the statute is within the discretion of the trial court. People v. Garberding, 787 P.2d 154 (Colo.1990).
The statute at issue here contains no time limitations with respect to the length of a probationary term and the length of the conditions attached to that term. Hence, the sentencing court was authorized by statute to sentence this defendant and others similarly situated to a wide range of penalties. The exercise of the sentencing court's discretion within the parameters of the statute does not deny a defendant equal protection under the laws. People v. Garberding, supra.
III.
Defendant's final contention is that, even if it is assumed that the sentencing court had the authority to impose a ten-year term of probation, the sentence itself must nonetheless be vacated because the court abused its discretion in determining the length of the sentence.
We do not address defendant's argument because we are without jurisdiction to review the granting or denial of probation and the conditions of probation unless probation is granted contrary to the provisions of Title 16. Section 16-11-101(a), C.R.S. (1986 Repl.Vol. 8A); People v. Smith, 681 P.2d 525 (Colo.App.1983). Defendant does not make such an allegation. Rather, he contends that the probationary term of ten years was excessive. In making his argument, defendant implicitly relies on Title 18.
To the extent that we have jurisdiction of the issues raised, the sentence is affirmed.
STERNBERG, C.J., and RULAND, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249595/ | 826 P.2d 1266 (1992)
CITY AND COUNTY OF DENVER, Acting By and Through its BOARD OF WATER COMMISSIONERS, Applicant-Appellant/Cross-Appellee,
v.
The CITY OF ENGLEWOOD, Opposer-Appellee/Cross-Appellant, and
The City of Thornton; Centennial Water and Sanitation District; the City of Aurora; the Farmers Reservoir and Irrigation Company, and the Burlington Ditch, Reservoir and Land Company; and the State Engineer and Division Engineer, Water Division No. 1, Opposers-Appellees.
No. 90SA474.
Supreme Court of Colorado, En Banc.
March 23, 1992.
*1267 Wayne D. Williams, Michael L. Walker, Casey S. Funk, Sara Duncan, Denver, for applicant-appellant/cross-appellee.
Hutchinson, Black, Hill & Cook, David G. Hill, Michael E. Miner, Boulder, for opposer-appellee/cross-appellant.
White & Jankowski, Michael D. White, Bruce D. Bernard, Denver, for opposer-appellee City of Thornton.
Justice ERICKSON delivered the Opinion of the Court.
This case involves the City and County of Denver's application for a quadrennial finding of reasonable diligence and a request to make certain conditional water rights absolute. Statements of opposition were timely filed by the City of Englewood and the City of Thornton. The water referee ruled in favor of Denver. Englewood and Thornton protested the referee's ruling, and trial to the District Court, Water Division No. 1, was held on February 5, 6, and 7, 1990. The water rights that are the subject of Denver's application and this appeal are Denver's conditional rights to divert water by exchange as decreed by the Douglas County District Court in Civil Action 3635 on May 18, 1972 (C.A. 3635).
*1268 On June 18, 1990, the water court entered an order continuing Denver's conditional water rights to the use of the South Platte River until May 31, 1992. However, the water court declined to make any of the conditional water rights absolute, finding that certain exchanges claimed by Denver subsequent to the entry of a conditional degree in C.A. 3635 were not valid. The water court also listed March 21, 1962, as the priority date of Denver's rights in the Strontia Springs Reservoir.
The issues on appeal are: (1) whether the water court erred in finding that the statement of claim in C.A. 3635 did not provide notice of Denver's intent to substitute Colorado River water, including transmountain effluent from the Metropolitan Waste Water Reclamation District waste water treatment plant (Metro Sewer), for waters of the South Platte River and that the statement of claim, therefore, did not allow such an exchange; (2) whether the water court erred in determining that the use of the "owe-the-river" account as a substitute supply at Chatfield Reservoir was insufficient to effectuate an exchange; (3) whether the water court erred in setting the priority date of the exchange of water from Chatfield Reservoir to Strontia Springs Intake as March 21, 1962, instead of 1980; and (4) whether the water court erred by requiring the next reasonable diligence application to be filed by May 31, 1992.
We hold that the water court erred in declining to make water rights absolute based on Denver's replacement of Colorado River water, including Metro Sewer transmountain effluent. However, the water court was correct in determining that the use of the "owe-the-river" account as a substitute supply at Chatfield Reservoir was insufficient to effectuate an exchange. Accordingly, we affirm the determination of the water court not to make the decree absolute as to 137 cfs. We reverse the water court determination that May 31, 1992, is the date the next reasonable diligence application is due and remand to the water court to amend its order by entering a date six years from its most recent finding of reasonable diligence. See Darby v. All J Land & Rental Co., 821 P.2d 297 (Colo.1991). Finally, we affirm the water court determination that the priority date of the exchange from Chatfield Reservoir to Strontia Springs Intake is March 21, 1962.
In 1968, C.A. 3635 was commenced, pursuant to the 1943 Adjudication Act, 1963 C.R.S. § 148-9-1 to -27, repealed by ch. 373, sec. 20, 1969 Colo.Sess.Laws 1200, 1223, to adjudicate the priorities to the right to use water for all beneficial purposes in Water District No. 8, Irrigation Division No. 1.[1] Denver filed a statement of claim in C.A. 3635 to secure its right to priority over other water users to divert water[2] by exchange from the South Platte River in Water District No. 8.[3] Denver's claim included the following points of diversion in Water District No. 8: Cheesman *1269 Reservoir, the Roxborough Diversion Facility, the Denver Platte Canyon Intake, the Highline Canal Diversion Works, Marston Reservoir, Platte Canyon Reservoir, and the Farmers and Gardeners Ditch Diversion Works. Denver listed the "South Platte River and drainage tributary thereto" as the source of supply for the diversions and claimed an appropriation date of July 4, 1921.
The record does not reflect that any opposition was made to Denver's statement of claim in C.A. 3635.[4] In 1972, after hearing testimony and taking evidence, the water court entered its decree in C.A. 3635. Under the heading "Exchange within Denver Water System," the decree granted Denver the right to divert up to 3000 cfs from the South Platte River System and its tributaries in Water District No. 8 for all municipal uses,
such uses to be repetitive to the fullest extent possible within the limit of physical and economic feasibility as found by Denver, together with the practice of using any of said waters for the purpose of effectuating an exchange or transfer of water by the use of any public stream or its water in substitution for water supplied or taken by claimant, including the right to precedence over others claiming or using a like or similar process.
The points of diversion under the decree included Cheesman Reservoir, the Roxborough Diversion Facility, the Denver Platte Canyon Intake, the Highline Canal Diversion Works, Marston Reservoir, Platte Canyon Reservoir, and the Farmers and Gardeners Ditch Diversion Works. The decree set the priority date of the water rights granted therein as
July 4, 1921, except to the extent the diversion is made by means of a structure shown above which has a decreed priority later than July 4, 1921. When the diversion is made by means of such a structure it shall have a priority dated the same date as the priority date for such structure.
The water court found that, as of the date of the decree, Denver had diverted 454 of the decreed 3000 cfs by exchange for water made available at the points of diversion set forth in the decree. Consequently, the water court made the decree absolute as to 454 cfs and conditional as to the remaining 2546 cfs.
On August 29, 1984, the District Court, Water Division No. 1 in Case No. W-8783-77, modified the decree in C.A. 3635 to add Chatfield Reservoir as an additional point of diversion by exchange under the "Exchange within Denver Water System" water right.[5] The change added Chatfield Reservoir to the original list of diversion points as "a new alternate and supplemental point of diversion and place of storage." Under the supplementary Chatfield decree, Denver "may divert and store by exchange at the rate of 3,000 cubic feet of water per second of time as of July 4, 1921, ... the waters of the South Platte River at and in the Chatfield Reservoir." The decreed uses for Chatfield Reservoir included "all municipal uses ... irrigation replacement, and the adjustment and regulation of the units of the Denver municipal water system within themselves and with other water users."
On May 29, 1986, Denver filed the application that is in issue in this case. Denver claimed that on July 8, 1985, it diverted 606 cfs from the South Platte River System and its tributaries in Water District 8 to the Denver Municipal Water System and *1270 applied that water to beneficial use as provided by C.A. 3635. Denver requested the court "to enter Findings and a Decree that 606 c.f.s. was exchanged and placed to the decreed beneficial uses, thereby making 606 cfs of water absolute and continuing the remaining 2,394 cfs."[6]
Englewood and Thornton opposed Denver's application. Thornton claimed that Denver had "not diligently pursued completion of the water right. [Denver] must provide strict proof of reasonably diligent efforts to complete the conditional water right." Englewood stated that it owned numerous water rights out of the South Platte River, "including rights to use the waters of the Platte River for exchange, its water rights having priorities as early as November 23, 1960, and for varying dates and amounts both for direct use and for storage, some of those water rights bearing very recent dates." It stated that the application did not indicate what Denver had done toward applying "the waters claimed to be appropriated to a beneficial use."
On August 19, 1986, the Division Engineer for Water Division No. 1 issued a summary of a consultation that was held on August 5, 1986, regarding Denver's application. The division engineer
recommended that approval not be granted unless [Denver] submits evidence to the Court proving:
1. The amount of water exchanged within the system, in priority, and beneficially used....
On October 3, 1988, the water court referee ruled that Denver's right to 591 cfs was absolute and continued Denver's conditional rights to the remaining 2,409 cfs. The referee found,
On July 9, 1985, the [Denver Water] Board exchanged 325 cfs from Chatfield Reservoir to Strontia Springs Reservoir; 157 cfs from Chatfield Reservoir to Cheesman Reservoir; and 109 cfs from Metro Sewer to Strontia Springs Reservoir. After this exchange the water was released and diverted into the Denver Municipal Water Works System and placed to the various beneficial uses described in [the decree in C.A. 3635].
Accordingly, the referee ordered that "an additional 137 cfs is hereby made absolute bringing the total decreed absolute to 591 cfs."
The referee reported that previous findings of diligence had been filed in 1972, 1974, 1978, and 1982. Finding that Denver had "engaged in activities necessary to develop the subject conditional water rights during the diligence period," the referee ordered "that the remaining conditional right (2,409 cfs) is hereby continued in full force and effect until the last day of May, 1990."
Thornton and Englewood protested the referee's ruling. Thornton protested that portion of the referee's ruling that made absolute a portion of the conditionally decreed exchange within the Denver water system on the grounds that it was not specific enough as to "which potential exchanges are included as part of the `Exchange Within the Denver Water System,' which stream reaches are potentially affected, or what flow reaches can potentially be exchanged over various stream reaches." Englewood protested the ruling on the grounds that it did not provide for adequate accounting to prevent injury to Englewood, which has water rights to the South Platte River with points of diversion between Strontia Springs Reservoir and Metro Sewer Outfall, and that the actual accounting has been so unsatisfactory as to cause injury.
In the subsequent trial before the water court, see § 37-92-304, 15 C.R.S. (1990), evidence was presented that, on July 8, 1985, Denver diverted 498 cfs from Strontia Springs Reservoir, Cheesman Reservoir, Eleven Mile Canyon Reservoir, and Antero Reservoir. On July 9, 1985, substitute supplies of 368 cfs were released into the South Platte River from storage at Chatfield Reservoir. A bookkeeping entry was *1271 made at Chatfield Reservoir to indicate that Denver "owed the river" 130 cfs after the releases had been made. Englewood and Thornton disputed the use of the "owe-the-river" account to effectuate the claimed exchange. Englewood and Thornton also questioned the validity of the exchanges, contending that the decree in C.A. 3635 only authorizes water taken from the South Platte River to be exchanged for South Platte River water. Denver's expert in water resource engineering and raw water operations, William G. Bates, of the Denver Water Department, testified that, in his expert opinion, the source of the 325 cfs released into the South Platte from Chatfield in exchange for water diverted at Strontia Springs Reservoir from South Platte River tributaries was "transmountain bypass," or transmountain water from any of Denver's west slope sources. In addition, Bates testified that the source of 109 cfs released into the South Platte River from Metro Sewer was effluent that was the product of and resulted from the importation of transmountain water.
On June 18, 1990, the water court found that Denver had been diligent and entered a decree continuing Denver's conditional water rights. However, the court declined to follow the referee's decision in making an additional 137 cfs absolute. The water court based the latter decision on its finding that the statement of claim in C.A. 3635 did not provide notice of the use of Colorado River water, including Metro Sewer transmountain effluent and that the decree did not approve these exchanges. Additionally, the water court determined that, while an exchange need not be simultaneous, the "owe-the-river-account substitute supply [used] at Chatfield Reservoir is insufficient."
The water court established March 21, 1962, as the priority date of Denver's exchange of water from Chatfield Reservoir to Strontia Springs Reservoir and Intake. The court set August 1990, as the date for the filing of the next diligence application, but later amended its order to extend the time for filing to May 31, 1992, in an effort to comply with section 37-92-301(4)(a), 15 C.R.S. (1990), which amended section 37-92-301(4), 15 C.R.S. (1973).
I
Englewood and Thornton contend that the decree in C.A. 3635 failed to give notice that either transmountain effluent, including Colorado River water, including Metro Sewer transmountain effluent, would be introduced as a source of substitute supply for water diverted from the South Platte River or that substitute water would be introduced below Water District 8. Therefore, Englewood and Thornton assert Denver may not use such water for an exchange on which to base absolute water rights. We disagree.
Before we can determine whether Denver's replacement of South Platte River water with Colorado River water and effluent was a valid exchange on which absolute water rights may be based, we must construe and interpret the decree granting Denver the conditional water rights. See Orchard City Irrigation Dist. v. Whitten, 146 Colo. 127, 133, 361 P.2d 130, 133 (1961). Orchard required this court to determine the validity of a 1955 ruling by the state engineer construing and interpreting a 1937 decree. We held that the statement of claim and transcripts of testimony given in the adjudication proceedings for the 1937 decree were admissible in evidence to enable the court to construe and interpret the decree. Id. at 134-36, 361 P.2d at 134-35. In interpreting the decree here we may consider Denver's statement of claim and the supporting transcripts of testimony in C.A. 3635.
Under the 1943 Adjudication Act, an original adjudication of water rights is initiated by filing a statement of claim. Section 148-9-8 required that a statement of claim contain in relevant part: (1) the claimant's name; (2) the name of the diverting structure; (3) a general physical description of such structure; (4) the name of the source of supply and location of point of diversion; (5) the appropriation date; (6) the amount of water claimed; and (7) the character of uses. 1963 C.R.S. § 148-9-8 (repealed 1969). We have previously *1272 interpreted the 1943 Act to require a claimant to specify the source from which the water is to be diverted. See City & County of Denver v. Vail Valley Consol. Water Dist., 751 P.2d 68 (Colo.1988).
Thornton and Englewood contend that, in the case of an exchange of water, the claimant must also specify the source of the water with which the diverted water is to be replaced. Englewood contends that Denver's statement of claim in C.A. 3635 did not contemplate the replacement of South Platte River water with Colorado River water, including Metro Sewer transmountain effluent. It asserts that the reference to an exchange using "any public stream" was not sufficient because in 1968, when Denver filed its statement of claim, there was no right to reuse effluent or imported water.[7] Without specific notice, interested parties would not be alerted of "the nature, scope and impact of the proposed diversion." See Monaghan Farms, Inc. v. City & County of Denver, 807 P.2d 9, 16 (Colo.1991). Thus, Englewood concludes that the statement of claim was insufficient.
Even if we assume that Englewood is correct that notice was necessary to provide downstream appropriators sufficient opportunity to protect their rights, the statement of claim and testimony in C.A. 3635 was sufficient to allow the use of Colorado River water, including transmountain effluent from Metro Sewer. One purpose of a statement of claim in the adjudication of water rights is to provide notice to other water users of the water rights claimed by the applicant. The purpose of notice is "to ensure that interested parties have a meaningful opportunity to participate in judicial water right determinations that may affect their vested rights." Monaghan Farms, 807 P.2d at 15.
Both Denver's statement of claim and the water court's decree stated that the water rights were for all municipal uses,
such uses to be repetitive to the fullest extent possible within the limits of physical and economic feasibility as found by Denver, together with the practice of using any of said waters for the purpose of effectuating an exchange or transfer of water by the use of any public stream or its water in substitution for water supplied or taken by claimant, including the right to precedence over others claiming or using a like or similar process, especially as such procedures affect the waters of the South Platte River in Water District No. 8 to the extent of the amounts and flows above set forth.
Denver's statement that "an exchange ... by the use of any public stream or its water in substitution for water supplied or taken by" Denver was sufficient to put interested parties on inquiry notice that sources other than South Platte River water might be introduced in replacement for water taken from the South Platte. See Monaghan Farms, 807 P.2d at 15 ("receipt of inquiry notice charges a party with notice of all the facts that a reasonably diligent inquiry would have disclosed"); cf. Vail Valley, 751 P.2d at 73 (statement of claim interpreted as ordinary person would). Thus, interested parties were alerted to make further inquiry into the source of replacement water. In addition, even though the record does not reflect any opposition to Denver's claim, the water court found that the testimony before the referee in C.A. 3635 indicated that the use of transmountain water or effluent in the subject exchanges could be anticipated.
Englewood's contention that interested parties were not sufficiently alerted to Denver's intention to use imported water and effluent is similarly without merit. In City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 52, 506 P.2d *1273 144, 147 (1972), we stated, "Even without the statute [that grants the right to reuse imported water, 1963 C.R.S. § 148-2-6 (Perm.Cum.Supp.1969),] we think that Denver [the appropriator] has the rights of re-use, successive use and disposition of foreign water...." Since the right to reuse effluent or imported water existed in 1968, when Denver's statement of claim was filed, the effluent and imported water here was encompassed by the phrase "any public stream" in Denver's statement of claim and the water court's decree.
We conclude that the statement of claim and the testimony in C.A. 3635, were sufficient to alert downstream appropriators that Denver sought the right to divert South Platte River water in exchange for Colorado River water, including transmountain effluent from Metro Sewer.
II
The water court found that the bookkeeping entry of 130 cfs in Denver's "owe-the-river" account was insufficient to effectuate an exchange and declined to make water rights absolute based on the claimed exchange. The water court determined that section 37-83-104, 15 C.R.S. (1990), does not require a simultaneous introduction of a substitute supply. However, it determined that Denver "cannot make [a nonsimultaneous] exchange until the Division Engineer is satisfied [Denver] can accurately identify reusable sources to effectuate the exchange." Finding that the division engineer was not informed of the claimed exchange until after the water had been diverted, the water court concluded that Denver's use of the "owe-the-river" account as a substitute supply was too vague to comply with the statutory requirements. We agree.
The statutes that allow for exchanges of water do not require that the delivery of water be simultaneous with the appropriation in order to effectuate an exchange. See, e.g., §§ 37-82-106, 37-83-101, 37-83-104, 15 C.R.S. (1990). They do, however give the division and state engineers significant responsibilities in the operation of exchanges. Section 37-83-101, directs the state engineer to determine the amount of water involved in an exchange:
Transfer from one stream to another. Whenever any person or company diverts water from one public stream and turns it into another public stream, such person or company may take out the same amount of water again, less a reasonable deduction for seepage and evaporation, to be determined by the state engineer.
Section 37-83-104 requires that exchanges not injure the rights of others and directs the state engineer to determine the amount of water. The division engineer is given the responsibility to see that exchanges are just and equitable. Section 37-83-104 states:
Reservoirs and ditches may exchange. When the rights of others are not injured thereby, it is lawful for the owner of a reservoir to deliver stored water into a ditch entitled to water or into the public stream to supply appropriations from said stream and take in exchange therefor from the public stream higher up an equal amount of water, less a reasonable deduction for loss, if any there be, to be determined by the state engineer. The person or company desiring such exchange shall be required to construct and maintain, under the direction of the state engineer, measuring flumes or weirs and self-registering devices at the point where the water is turned into the stream or ditch taking the same or as near such point as is practicable so that the division engineer may readily determine and secure the just and equitable exchange of water.
Denver contends that the exchange took place when the bookkeeping entry was made reflecting the amount of water Denver owed the river because at that point the state engineer assumed control over the actual release of the water from Chatfield.[8]*1274 We disagree. Although the amount of water in Denver's "owe-the-river" account is determined by the division or state engineer's decision to release or hold the replacement water, Denver's accounting method was insufficient to effectuate an exchange to the extent that Denver took water from the South Platte before notifying either the division or state engineer that a corresponding release would be required and was available. In order for the division and state engineers to effectively exercise their discretion in administering water rights so as to protect the rights of downstream senior appropriators, the engineers must be informed in advance of a diversion that might affect those rights. Prior notification of the exchange allows the engineers to ensure that water is available to be released to meet the needs of downstream senior appropriators. If, however, notification takes place after the diversion has been made, downstream senior appropriators requiring water may be injured before the replacement water is available. Allowing the party to proceed without notifying the state engineer places the engineers' statutory discretion in the hands of the exchanging party.
Besides giving the state and division engineer significant discretion over the operation of an exchange, the statutes assign the engineers functions that require them to be aware of the exchange prior to its operation. For example, section 37-83-104 charges the state engineer with the determination of the amount of water an appropriator may take in an exchange. See § 37-83-102 (appropriator may take amount equal to that delivered into the stream "less a reasonable deduction for loss, if any there be, to be determined by the state engineer"). The water court found "that the Division Engineer and Water Commissioner were made aware of the alleged exchange subsequent to the operation of the claimed exchange."
We conclude that section 37-83-104 does not require the introduction of a substitute supply to be simultaneous with withdrawal. However, a nonsimultaneous release and diversion may only effectuate an exchange when proper notification has been given to the state or division engineer and it is evident that water is available for the release. Prior notification is necessary to protect the rights of downstream appropriators by ensuring that water will be available to downstream priorities. Since Denver failed to give proper notice in advance of the diversion, Denver's "owe-the-river" accounting method was an insufficient basis for an exchange and cannot support a decree of absolute water rights.
III
In Exhibit A of the water court's June 18, 1990, decree, the court listed the date of appropriation, March 21, 1962, as the priority date for the exchange from Chatfield Reservoir to Strontia Springs Intake. Englewood asserts that the priority date is 1980, the date the application was filed for the determination of water rights for Strontia Springs Intake. We agree with the water court. The decree in C.A. 3635 states that Denver's right of exchange for the "Exchange within Denver Water System" has a priority date of
July 4, 1921, except to the extent the diversion is made by means of a structure shown above which has a decreed priority later than July 4, 1921. When the diversion is made by means of such a structure it shall have a priority dated the same date as the priority date for such structure.
The Strontia Springs Intake[9] was listed as a point of diversion, but had not yet been constructed when the decree was entered.
In 1983, after construction of the Strontia Springs Intake, the water court issued *1275 two decrees awarding water rights to Denver for the Strontia Springs structures based on applications filed in 1980. In Case No. 80CW408 the water court granted Denver conditional water rights for Foothills Tunnel and Conduit No. 26, to divert water from the South Platte River by means of the Strontia Springs Diversion Dam. In Case No. 80CW406 the water court granted Denver conditional water rights for the Strontia Springs Diversion Dam and Reservoir. Both decrees state:
The date of appropriation: March 21, 1962....
....
... The priority herein awarded said Strontia Springs Diversion Dam and Reservoir was filed in the Water Court in the year of 1980 and shall be administered as having been filed in that year; and shall be junior to all priorities filed in previous years. As between all rights, filed in the same calendar year, priorities shall be determined by historical dates of appropriation and not affected by the date of entry of ruling.
Englewood asserts that the water court misinterpreted the Strontia Springs decree in listing March 21, 1962, as the date of appropriation. It contends that the decreed priority date is 1980. Denver asserts that Englewood mistakenly applies the Water Right Determination and Administration Act of 1969, §§ 37-92-101 to XX-XX-XXX, 15 C.R.S. (1990 & Supp.1991) (1969 Act), to arrive at a priority date the same as the date of filing the application for determination of the Strontia Springs water rights. We need not determine whether the Strontia Springs decrees are governed by the 1969 Act or the 1943 Act because in either case the result is the samethe priority date is determined by the date of appropriation.
Under the doctrine of prior appropriation, the priority of water rights is determined according to the date of appropriation. E.g., United States v. Bell, 724 P.2d 631 (Colo.1986). The 1943 Act required the water court to specify the priority date of each appropriation, 1963 C.R.S. § 148-9-13(2)(f) (repealed 1969), to be determined with reference to the appropriation: "The decree to be entered by the Court at the conclusion of each adjudication shall determine and establish the several priorities of right, by appropriation of water, of the several ditches, reservoirs and other structures in the water district...." § 148-9-13(1) (emphasis added). The 1969 Act similarly requires the court to grant a priority date that is the same as the date of appropriation: "In the determination of a water right the priority date awarded shall be that date on which the appropriation was initiated if the appropriation was completed with reasonable diligence." § 37-92-305, 15 C.R.S. (1990). The water court did not list a priority date separate from the date of appropriation. We interpret the water court decree as establishing the priority date as March 21, 1962, the date of appropriation.
Englewood asserts that the postponement doctrine requires us to hold that the priority date is 1980, the date the application was filed, rather than the date of appropriation.
The postponement doctrine provides that when a court enters a statutory decree in the same water district where a previous properly rendered statutory decree has been entered:
the decrees take rank and precedence in order of time of rendition: the doctrine being first in order of time, first in right of priority ... the earliest priority in the second proceeding, must be of a later date and number than the latest or lowest priority awarded in the first proceeding, and the earliest numbered priority in a second must be the next consecutive number after the latest numbered priority of the first proceeding.
South Adams County Water & Sanitation Dist. v. Broe Land Co., 812 P.2d 1161, 1163-64 (Colo.1991) (quoting Huerfano Valley Ditch & Reservoir Co. v. Hinderlider, 81 Colo. 468, 473, 256 P. 305, 307 (1927)). The postponement doctrine governs the administration of water rights adjudicated in different decrees or applied for *1276 in different years.[10] The doctrine does not affect the actual priority dates and is not applicable in this case. We said in United States v. Bell,
Priority of appropriation determines the relative priority among water rights or conditional water rights awarded in one calendar year, but, regardless of the date of appropriation, water rights or conditional water rights decreed in one year are necessarily junior to all priorities awarded in decrees in prior years.
Bell, 724 P.2d at 641-42 (emphasis added). "Under the postponement doctrine, water rights adjudicated in a previous decree are senior to water rights adjudicated in a subsequent decree on the same stream, regardless of their dates of appropriation." South Adams County Water & Sanitation Dist. v. Broe Land Co., 812 P.2d at 1164; City & County of Denver v. Colorado River Water Conservation Dist., 696 P.2d 730, 739 n. 8 (Colo.1985) ("Under the 1943 Act, each priority adjudicated in a supplemental adjudication is junior to those adjudicated in a prior adjudication suit.").
Section 148-9-13(3) states the postponement doctrine as it existed under the 1943 Act:
In case a prior decree has been rendered by the court in any adjudication fixing irrigation or nonirrigation priorities from the same source, each priority adjudicated shall be junior and inferior to those theretofore adjudicated, and the decree shall so indicate as to each such junior priority which bears a date earlier than the latest priority date awarded in the last prior adjudication.[[11]]
Similarly, under the postponement doctrine as enunciated in the 1969 Act, the priority dates establish the relative priorities of water rights filed in the same calendar year:
With respect to each division described in section 37-92-201, the priority date awarded for water rights or conditional water rights adjudged and decreed on applications for the determination of the amount and priority thereof filed in such division during each calendar year shall establish the relative priority among other water rights or conditional water rights awarded on such applications filed in that calendar year; but such water rights or conditional water rights shall be junior to all water rights or conditional water rights awarded on such applications filed in any previous calendar year....
§ 37-92-306, 15 C.R.S. (1990) (emphasis added). Thus, under the 1969 Act a water right filed in a previous year is senior to a water right filed in a subsequent year, and the priority dates are not affected.
Since the Strontia Springs decrees list only an appropriation date and a filing date, and do not list a separate priority date, we affirm the water court finding that Denver's priority date for the exchange from Chatfield Reservoir to Strontia Springs Intake is March 21, 1962, the date of appropriation.
IV
Denver states that the water court erred in requiring the next application for reasonable diligence to be filed by May 31, 1992. We agree.
Under section 37-92-301(4)(a), 15 C.R.S. (1990) (amending section 37-92-301(4), 15 C.R.S. (1973)), the filing deadline should be determined from the date of the most recent decree. Darby v. All J Land & Rental Co., 821 P.2d 297 (Colo.1991). The water court here determined the date for the filing with reference to the date of the original decree. In accordance with our decision in Darby, we reverse the entry of May 31, 1992, as the deadline and remand to the water court with directions to amend *1277 the order by striking May 31, 1992, and inserting June 30, 1996.
V
Accordingly, we reverse the water court determination that, under the decree in C.A. 3635, Colorado River water or effluent and Metro Sewer effluent may not be used as sources of substitute supply for an exchange of South Platte River water. We affirm the determination that Denver's owe-the-river bookkeeping entry at Chatfield Reservoir, indicating that it owed 130 cfs of water to the South Platte River, did not effectuate a valid exchange. We also affirm the water court listing of March 21, 1962, as the priority date of Denver's exchange from Chatfield Reservoir to Strontia Springs Reservoir and Intake. We direct on remand that the May 31, 1992, date for the next reasonable diligence filing be stricken and that the water court enter June 30, 1996, as the time for filing the application for reasonable diligence pursuant to section 37-92-301(4)(a), 15 C.R.S. (1990). Finally, we remand for a further hearing on the exchange of water rights in accordance with the directions contained in this opinion. The water court made no findings and the record is not clear as to the time sequence of the exchange, notice to the state engineer, or the operation and the amounts exchanged. On remand, the water court is to determine when notice was given to the state engineer for the exchange, the manner in which the exchange was to become operational, the amounts exchanged, and based on its findings, whether Denver is entitled to have an absolute decree entered as a result of the operation of the exchange.
NOTES
[1] The 1943 Adjudication Act provided in part:
For the purpose of hearing, adjudicating and settling all questions concerning the priority of appropriation of water between owners and claimants of water rights drawing water from the same source within the same water district, and all other questions of law and questions of right growing out of, or in any way involved or connected therewith, jurisdiction is hereby vested exclusively in the district court of the county in which said water district exists....
1963 C.R.S. § 148-9-2.
[2] Under the current statute, "`[d]iversion' or `divert' means removing water from its natural course or location, or controlling water in its natural course or location, by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device." § 37-92-103(7), 15 C.R.S. (1990) (originally enacted as 1963 C.R.S. § 148-21-3(5) (Perm.Cum. Supp.1969)). In contrast, "`[a]ppropriation' means the application of a specified portion of the waters of the state to a beneficial use pursuant to the procedures prescribed by law." § 37-92-103(3)(a) (original version at 1963 C.R.S. § 148-21-3(6) (Perm.Cum.Supp.1969)).
[3] At the time of the 3635 decree, Water District No. 8 consisted of
all lands irrigated by ditches taking water from Cherry creek, Plum creek and Platte river and their tributaries, except Bear creek, above water district No. 2 [beginning at the Cherry Creek confluence], and below the forks of the north and south branches of the South Platte river, and including all lands and ditches in Douglas county.
1963 C.R.S. § 148-13-9.
[4] 1963 C.R.S. § 148-9-7 required the water court to notify all owners or claimants of any water right in the water district, except those that had already been adjudicated, to file a statement of claim, to appear for the taking of evidence in regard to the claim, and to appear if they wished to resist a claim.
[5] Section 37-92-305(3), 15 C.R.S. (1990), requires the referee or water judge to approve a change of water right "if such change ... will not injuriously affect the owner of or persons entitled to use water under a vested water right or a decreed conditional water right." On December 30, 1977, Denver initiated the change of water right to add Chatfield Reservoir as an additional point of diversion by filing an application for confirmation of water rights. The water court found that all required notices had been given. Both the City of Thornton and the City of Englewood filed statements of opposition to Denver's application.
[6] Denver later reduced its claimed exchange to 591 cfs (or 137 cfs in addition to the amount already decreed absolute).
[7] Currently, an appropriator who introduces imported water into a stream system has at least a limited right to reuse the water it imports. See XX-XX-XXX(1), 15 C.R.S. (1990); City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 51, 506 P.2d 144, 146 (1972) (right to reuse and make successive uses of imported water). The predecessor to section 37-82-106(1), which first granted appropriators the right to reuse imported water, was enacted in 1969. See 1963 C.R.S. § 148-2-6 (Perm.Cum.Supp.1969).
[8] The operation of an exchange is the province of the state and division engineers. See § 37-83-104. Chatfield Reservoir is operated by the United States Corps of Army Engineers under the direction of the state engineer. When Denver takes water from the South Platte that is to be replaced with water released from Chatfield, it informs the division engineer, who is supervised by the state engineer. § 37-80-105, 15 C.R.S. (1990). The state engineer then has discretion either to release the water or to hold it until a demand is placed by a downstream senior appropriator. See § 37-80-120(1), 15 C.R.S. (1990).
[9] At the time the decree in C.A. 3635 was entered, the Strontia Springs Intake was known as the Roxborough Diversion Facility and was referred to as such in the decree.
[10] The 1969 Act applies the postponement doctrine according to the years in which the water rights applications were filed. See § 37-92-306, 15 C.R.S. (1990). The 1943 Act applies the postponement doctrine according to the decrees in which the water rights were adjudicated. See § 148-9-13(3).
[11] For example, a water right with a 1964 priority date that was adjudicated in 1966 would be senior to a water right with a 1962 priority date that was adjudicated in 1967. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249628/ | 170 Ariz. 589 (1991)
826 P.2d 1215
Ruben R. MUNGARRO, Petitioner,
v.
The Honorable James L. RILEY, A Judge for the Superior Court of the State of Arizona, County of Chochise, and the Honorable Michael Cass, Justice of the Peace of the Justice Court of Cochise County, Respondents, and The STATE of Arizona, Real Party in Interest.
No. 2 CA-SA 91-0130.
Court of Appeals of Arizona, Division 2, Department A.
November 5, 1991.
Review Denied April 7, 1992.[*]
*590 Robert Arentz, Cochise County Public Defender by Vincent J. Frey, Bisbee, for petitioner.
Alan K. Polley, Cochise County Atty. by Douglas C. Whitney, Bisbee, for real party in interest.
OPINION
LACAGNINA, Presiding Judge.
This special action is brought from the lower court's denial of petitioner Ruben R. Mungarro's demand for a jury trial on the charge of false reporting to a law enforcement agency, in violation of A.R.S. § 13-2907.01. Because Mungarro is without an adequate remedy by appeal, and a special action is the proper means for questioning the right to a jury trial, Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966), we assume jurisdiction and grant relief.
A criminal defendant is guaranteed the right to a jury trial. Ariz.Const. art. 2, §§ 23, 24. That right, however, has only been extended to serious crimes. Rothweiler, supra. A three-prong test has been formulated to assess whether a crime is serious. A jury trial will be warranted where either (1) the defendant is exposed to a severe penalty; (2) the act involves moral turpitude; or (3) the crime has traditionally merited a jury trial. State ex rel. Baumert v. Superior Court, 127 Ariz. 152, 618 P.2d 1078 (1980); State v. Harrison, 164 Ariz. 316, 792 P.2d 779 (App. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 979, 112 L. Ed. 2d 1064 (1991).
As to the first test, the maximum imposable penalty for a defendant facing a class 1 misdemeanor is a six-month jail term and a fine of up to $2,500. To constitute a severe penalty, the exposure to incarceration must exceed six months, Harrison, supra, 164 Ariz. at 317, 792 P.2d at 780. The amount in fines has been held to be of "no talismanic significance." Baumert, supra, 127 Ariz. at 154-55, 618 P.2d at 1080-81.
The prong of the test which mandates a jury trial for crimes which merited a jury trial at common law is not applicable because the crime with which Mungarro is charged did not exist at common law. Indeed, it did not even exist in Arizona until it was added in 1981.
Therefore, only if the crime here involves moral turpitude would Mungarro be entitled to a jury trial. In discussing the moral quality of an accused's acts, some cases characterize the conduct as that of a "depraved and inherently base person," O'Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968). See also Du Vall v. Board of Medical Examiners, 49 Ariz. 329, 66 P.2d 1026 (1937). In other cases, moral turpitude has been found to refer to acts which adversely reflect on honesty, integrity, or personal values. State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989), cert. denied, 493 U.S. 1080, 110 S. Ct. 1136, 107 L. Ed. 2d 1041 (1990); see Ariz.R.S.Ct. 42, 17A A.R.S., Rules of Professional Conduct, ER 8.4 (Comment). Moral turpitude has been held to involve a readiness to do evil, that is, such conduct which would support an inference of a witness's readiness to lie. People v. Garrett, 195 Cal. App. 3d 795, 241 Cal. Rptr. 10 (1987). In Hackman v. Commonwealth, 220 Va. 710, 261 S.E.2d 555 (1980), the supreme court of Virginia found that making a false statement was a crime involving moral turpitude, 261 S.E.2d at 559, citing Chesapeake & O. Ry. Co. v. Hanes, 196 Va. 806, 86 S.E.2d 122 (1955).
A conviction pursuant to A.R.S. § 13-2907.01 would reflect adversely on Mungarro's moral character. We believe, therefore, the respondent superior court and the respondent justice court erred in denying Mungarro's motion for a jury trial. The case is remanded to justice court for a jury trial.
LIVERMORE, C.J., and HOWARD, J., concur.
NOTES
[*] Corcoran and Martone, JJ., of the Supreme Court, voted to grant review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249807/ | 493 F.3d 997 (2007)
UNITED STATES of America, Appellee/Cross-Appellant,
v.
Rodney Jay JENSEN, Appellant/Cross-Appellee.
Nos. 06-2284, 06-2497.
United States Court of Appeals, Eighth Circuit.
Submitted: January 9, 2007.
Filed: June 28, 2007.
*998 Counsel who presented argument on behalf of the appellant was Jay E. Denne, Sioux City, Iowa.
Counsel who presented argument on behalf of the appellee was Ian K. Thorn, AUSA, Cedar Rapids, Iowa. Also appearing on the brief was Shawn S. Wehde, special AUSA, Sioux City, Iowa.
Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG, Judge.[1]
COLLOTON, Circuit Judge.
Rodney Jensen pled guilty to conspiring to distribute more than 500 grams of methamphetamine, and to possessing with intent to distribute more than 500 grams of methamphetamine. Because he had sustained two previous convictions for drug trafficking offenses, Jensen was subject to a mandatory term of life imprisonment, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851. As part of his *999 plea agreement, Jensen cooperated with law enforcement in the investigation and prosecution of other persons, and the government moved the district court, pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e), to reduce Jensen's sentence from life imprisonment to a term of years.
The district court granted the motions and reduced Jensen's sentence to 180 months' imprisonment. The court specified that, for purposes of its analysis, it equated life imprisonment with a term of 360 months' imprisonment. The court then reduced that sentence in two increments: first, to 216 months' imprisonment based on Jensen's substantial assistance in the investigation and prosecution of others, and second, to 180 months' imprisonment based on other factors set forth in 18 U.S.C. § 3553(a).
Neither party is happy with the sentence. Jensen argues that because he was 59 years old at the time of sentencing, and his personal life expectancy was thus less than 360 months, the district court should have adopted a shorter term of imprisonment as a "starting point" for analysis, and then reduced his sentence from there. The government contends that because the sentencing table published in the United States Sentencing Guidelines Manual extends as high as 405 months' imprisonment, and because the Sentencing Commission has defined life sentences as 470 months in its annual Sourcebook for Federal Sentencing Statistics, the district court should have used a greater term of imprisonment as the starting point for its analysis. The government also argues that the district court was not permitted to reduce Jensen's sentence based on factors set forth in 18 U.S.C. § 3553(a) that are unrelated to assistance.
Taking the last point first, we agree with the government that the district court's reduction of sentence from 216 months to 180 months was contrary to law. When the government files a motion under 18 U.S.C. § 3553(e), the court has "limited authority" to sentence a defendant below the statutory minimum. In United States v. Williams, 474 F.3d 1130 (8th Cir.2007), we held that this reduction in sentence below the statutory minimum must reflect only the defendant's substantial assistance. Id. at 1132. The court may not reduce the sentence further based on factors unrelated to assistance, such as those set forth in 18 U.S.C. § 3553(a), because such a reduction exceeds the limited authority granted by § 3553(e). Id. The district court did not have the benefit of our decision in Williams, but it is now clear that the second increment in the court's reduction was not permissible.
The remaining question is whether the district court abused its discretion in reducing Jensen's sentence from life imprisonment to 216 months. Jensen says the court should have analyzed the reduction by equating "life" with Jensen's actual life expectancy of 20.49 years, and then reducing the sentence from there based on substantial assistance. We reject Jensen's contention as inconsistent with the structure of the advisory guidelines. Departures and reductions based on substantial assistance are to be considered in the context of the advisory guidelines system, see United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005), and that system contemplates a range of incremental punishments ranging from 0-6 months' imprisonment up to Jensen's pre-assistance sentence of life imprisonment. USSG Ch. 5, Pt. A (sentencing table). These punishments are fixed without regard to the offender's life expectancy, and many offenders including offenders of Jensen's age who are viewed by the Sentencing Commission as less serious than Jensen are subject to terms of imprisonment of greater than 20.49 years. Thus, it would *1000 be anomalous to treat Jensen as the equivalent of an offender who is subject to a term of only 20 years under the guidelines, when other less serious offenders who earn sentence reductions are subject to a higher "starting point" in the sentencing scheme.
The government, on the other hand, contends the district court should have analyzed the reduction by equating "life" with a term of 470 months' imprisonment. We did hold in United States v. Keller, 413 F.3d 706 (8th Cir.2005), that a district court's use of 470 months as a "starting point" was not "in error," id. at 711, but we are not convinced that it must be the starting point in every case. Cf. United States v. Selby, 184 Fed.Appx. 589, 591 (8th Cir.2006) (per curiam) (unpublished) (holding in post-Keller decision that district court did not err in using 405 months as a starting point for departure from life imprisonment). The 470-month figure is derived from the Sentencing Commission's Sourcebook of Federal Sentencing Statistics, where the Commission has explained that "to reflect life expectancy of federal criminal defendants more precisely and to provide more accurate length of imprisonment information, life sentences are now defined as 470 months." United States Sentencing Commission, 2005 Sourcebook of Federal Sentencing Statistics, App. A (Post-Booker), at 2. There is no indication that the Commission's selection of 470 months was a policy judgment about the incremental punishment that should accompany an increase in an offender's offense level from Level 42 (which carries a minimum advisory sentence of 360 months) to Level 43 (which prescribes life imprisonment). Prior to fiscal year 1993, the Commission defined life imprisonment as 360 months, and the change to 470 months was based purely on empirical data concerning the life span of present-day inmates. Id.
We are doubtful about the district court's use of 360 months' imprisonment as a starting point, because that figure represents no incremental punishment from Level 42 to Level 43. In addition, the guideline sentencing table contemplates sentencing ranges that go as high as 405 months, so it would be odd to equate the maximum sentence of life with a lesser term of 360 months. See Selby, 184 Fed. Appx. at 591. Nonetheless, while the parties are fixated on selecting a specific number of months as a starting point, we find that exercise unnecessary to resolve this case. A starting point expressed in a number of months is essential to the analysis only if one accepts the United States Attorney's view that reductions must be measured as a percentage of the otherwise applicable sentence. Percentages are not the only way to evaluate the reasonableness of a reduction, and they can sometimes be unhelpful or even misleading. Cf. United States v. Maloney, 466 F.3d 663, 668-69 (8th Cir.2006) (discussing the issue in the context of variances under 18 U.S.C. § 3553(a)).
In this case, where the Sentencing Commission has not placed a number on "life" imprisonment for the purpose of prescribing an incremental punishment, we think it more helpful to view the district court's reduction in terms of the incremental guideline ranges in the Sentencing Commission's sentencing table. Cf. id. at 668. A sentence of life imprisonment corresponds to offense level 43 as a starting point, see United States v. Nelson, 491 F.3d 344, 346 (7th Cir.2007), and a reduction from life imprisonment to a term of 216 months amounts to a decrease of six guideline ranges. This measure of the reduction is illustrated most clearly in criminal history category I, where "life" corresponds to offense level 43, and 216 months' imprisonment is within the sentencing *1001 range at offense level 37 a difference of six offense levels. Jensen's criminal history score placed him in criminal history category II, but the government does not urge that a reduction from a statutory minimum of life imprisonment to 216 months should be viewed as a greater reduction for a defendant in category II than for a defendant in category I. Indeed, the government's percentage-based approach treats equally all defendants facing a particular term of imprisonment, regardless of the applicable criminal history category. Likewise, we do not think it necessary to view the difference between level 42, category II, and level 41, category II, both of which carry a sentencing range of "360-life," as a "reduction" for purposes of determining whether the district court abused its discretion in this context. See Nelson, at 345 (recounting that the government, in recommending reduction of four sentencing guideline ranges from life imprisonment and offense level 43 for a defendant in category VI, asked the district court "to `clump' the six guideline ranges of '360-life' under category VI (offense levels 42 to 37) `together into one,'" and that the recommended sentence was within the range corresponding to offense level 34).
A reduction of six guideline ranges is significant in the context of an advisory guideline system where the degree of most aggravating and mitigating adjustments is two, three, or four offense levels. Saenz, 428 F.3d at 1162. But it is less dramatic than other reductions that we have viewed as so great as to require exceptional facts to justify them. See United States v. Coyle, 429 F.3d 1192, 1193-94 (8th Cir. 2005) (14-level reduction); United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005) (12-level reduction); Saenz, 428 F.3d at 1162 (11-level reduction); United States v. Haack, 403 F.3d 997, 1005 (8th Cir.2005) (7-level reduction); see also United States v. Burns, 438 F.3d 826, 831 (8th Cir.2006) (Wollman, J., dissenting) (disagreeing with panel decision affirming a 9-level reduction), vacated and reh'g en banc granted, Nos. 04-2901/2933 (8th Cir. May 18, 2006); cf. United States v. Pizano, 403 F.3d 991, 997 (8th Cir.2005) (affirming 12-level reduction). The district court here determined that Jensen's assistance was not "extraordinary" within the meaning of our cases, and that the reduction in sentence should be less than fifty percent of a starting point expressed in a number of months. (S. Tr. II at 28-29); cf. Dalton, 404 F.3d at 1033 (stating that "an extraordinary reduction must be supported by extraordinary circumstances," and citing favorably an observation that a 50 percent downward departure was an "extraordinary sentence reduction").
The record here shows that Jensen was debriefed extensively by law enforcement agents concerning a substantial methamphetamine conspiracy, and that he was a prospective witness in the sentencing proceeding of a co-conspirator. (The conspirator ultimately stipulated to an enhancement as Jensen waited to testify). Jensen also identified the conspirators' source of supply in Arizona a major figure in the conspiracy and testified in the grand jury in preparation for what the government characterized as a "probable future indictment." (S. Tr. II at 7). The government stipulated that Jensen's assistance was timely, complete, and truthful. While the reduction here is generous, and at or near the limit of what we could view as reasonable based on this level of assistance, we hold that the district court's reduction of Jensen's sentence by the equivalent of six guideline ranges was not an abuse of discretion.
For these reasons, we vacate the judgment of the district court and remand for *1002 imposition of a sentence of 216 months' imprisonment.
NOTES
[1] The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249982/ | 493 F.3d 782 (2007)
TRUSTEES OF the CHICAGO PAINTERS AND DECORATORS PENSION, HEALTH AND WELFARE, AND DEFERRED SAVINGS PLAN TRUST FUNDS, Plaintiffs-Appellees,
v.
ROYAL INTERNATIONAL DRYWALL AND DECORATING, INC., an Illinois corporation, Defendant-Appellant.
No. 06-2367.
United States Court of Appeals, Seventh Circuit.
Argued January 18, 2007.
Decided July 3, 2007.
*783 *784 Steven F. McDowell (argued), Donald D. Schwartz, Arnold & Kadjan, Chicago, IL, for Plaintiffs-Appellees.
Joseph P. Berglund (argued), Berglund & Niew, Oak Brook, IL, for Defendant-Appellant.
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge.
The Trustees of the Chicago Painters and Decorators Pension, Health and Welfare and Deferred Savings Plan Trust Funds ("Trustees") sued an employer of its union members, Royal International *785 Drywall & Decorating, Incorporated ("Royal"). The Trustees claimed that Royal violated collective bargaining agreements by failing to compensate the Funds for each hour the covered employees worked. Following a bench trial, the district court found that Royal owed contributions to the Funds and, after further proceedings, entered an award for damages. Royal appeals, contesting the admission of expert testimony at trial, the district court's factual findings, and the amount of liquidated damages awarded. We affirm.
I.
The district court fully recounted the background of this case in its findings issued after the bench trial, so we recite the facts only as necessary. See Trustees of the Chicago Painters v. Darwan, No. 01-C-2458, 2004 WL 1459553 (N.D.Ill. June 29, 2004). Royal employed individuals, known as "tapers," to install drywall in residential tract housing. Tract housing is a manner of constructing subdivisions with a limited number of model designs and options. Historically, tapers received compensation by the number of pieces of drywall they installed, not by the hours they worked. However, a collective bargaining agreement between Royal and its employees required Royal to compensate the employees and contribute to the Funds based on each hour worked, not by the piece. The Trustees filed suit against Royal, alleging that Royal violated the collective bargaining agreement by compensating its employees by the piece, and not by the hour, and claiming that the contributions made to the Funds were insufficient for the actual number of hours worked.
At trial, the Trustees claimed that Royal's time sheets inaccurately recorded the hours worked, and were instead rigged to reflect the hours budgeted for the project. To prove the actual number of hours worked, the Trustees offered evidence of a "materials audit" that the Trustees conducted on Royal. The audit used the amount of raw materials Royal purchased for installation to calculate the amount of drywall installed. Then, the number of hours worked was calculated based on the average rate of drywall installation for a taper. The parties vigorously contested the average rate at which a taper works. Royal also contended that its time sheets were accurate and sufficient to calculate the contributions.
After hearing the evidence, the district court determined that Royal's time sheets for its employees did "not accurately reflect hours actually worked." Accordingly, the court had to establish an alternative means of ascertaining the hours worked in order to determine the proper amount of contributions due to the Funds. The district court, after considering testimony from experts, employees, and various published sources, followed the materials audit and settled on a rate of 2.86 boards of drywall per hour. The determination of this rate is the crux of this appeal. Based on this rate, and following further briefing from the parties, the district court awarded the Trustees $30,508.13 in unpaid contributions and $68,266.16 in liquidated damages for the period of October 1, 1999, through March 31, 2000. The district court also awarded the Trustees $17,955.82 in liquidated damages for late contributions and $712.08 in owed disbursements for the period of December 1, 1998, through March 31, 2000. Royal appeals.
II.
In an appeal from a bench trial, "[w]e review a district court's conclusions of law de novo, and we review its findings of fact, as well as applications of law to those findings of fact, for clear error." Keach v. U.S. Trust Co., 419 F.3d 626, 634 (7th Cir.2005) (citation omitted).
*786 On appeal, Royal first objects to the district court's finding that the time sheets Royal maintained for its employees were inaccurate. An employer must "maintain records with respect to each of his employees sufficient to determine the benefits due or which may become due to such employees." 29 U.S.C. § 1059(a)(1). The collective bargaining agreement in this case required Royal to contribute benefits based on the hours worked. Therefore Royal had an obligation to maintain records of the hours worked that would be "sufficient to determine the benefits due." Id. Royal did maintain time sheets; simply maintaining time sheets, however, is not enough to comply with the statute unless the time sheets are sufficient to determine the actual hours worked, and thus the benefits due. Previous cases in this circuit have characterized sufficient records as "reliable, contemporaneous records," Chicago Dist. Council of Carpenters Pension Fund v. Reinke Insulation Co., 347 F.3d 262, 264 (7th Cir.2003), that demonstrate "accuracy" in recording the work performed, Laborers' Pension Fund v. RES Envtl. Servs., 377 F.3d 735, 739 (7th Cir. 2004) (citation omitted).
Royal claims that it properly maintained reliable, contemporaneous time sheets reflecting the hours worked. The district court, however, made extensive findings about the insufficient quality of Royal's time sheets and records. Specifically, the district court noted that "only five of the 263 time sheets for the period [at issue] record daily hours worked; the remainder list only weekly totals." While weekly, instead of daily, totals of hours are not necessarily insufficient under the agreement, other evidence raised suspicion that the weekly totals were inaccurate. For example, the district court noted that the hours budgeted and the hours worked on the time sheets matched on a substantial majority of the time sheets. The district court also remarked on various notations made on the time sheets, such as "a hand written calculation dividing the number of hours budgeted (156.25) by the number of crew members (4); the sheet assigns 39.25 hours to [the crew chief], while each remaining crew member is reported to have worked only 39 hours." Furthermore, employees testified that they regularly worked more hours than were reflected on the time sheets, and the district court found their testimony credible. Although Royal presents alternative explanations for the quality of the time sheets, the district court's conclusion reflects a reasonable examination of the evidence and testimony. We are not "left with the definite and firm conviction that a mistake has been committed." Gaffney v. Riverboat Servs. of Indiana, 451 F.3d 424, 447-48 (7th Cir.2006) (citation and internal quotation omitted). Accordingly, based on the exhibits and testimony, the district court did not clearly err in concluding that Royal's records were not credible and did not satisfy the requirement to maintain sufficient records to determine the hours actually worked by the employees.[1]United States v. Biggs, 491 F.3d 616 (7th Cir. 2007) ("Although we review for clear error, determinations of witness credibility can virtually never be clear error." (internal quotation, citations, and footnote omitted)).
Because Royal's records were insufficient, the district court proceeded to *787 seek another method for determining the number of hours the employees worked in order to calculate the proper benefits. It did so by finding an hourly rate at which drywall tapers installed drywall boards, a rate that the parties vigorously contested before the district court. On appeal, Royal objects to the district court's admission of the testimony of two experts,[2] John Hull and Ian Parr, who offered their opinions on the rate of drywall taping. We review de novo the district court's application of the principles articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which guides the admission of expert testimony under Federal Rule of Evidence 702. That is, we review de novo "whether (1) the proposed witness would testify to valid scientific, technical, or other specialized knowledge and (2) his testimony will assist the trier of fact." Ammons v. Aramark Unif. Servs., 368 F.3d 809, 816 (7th Cir.2004) (citations and internal quotation omitted). If we determine that the district court applied the proper framework, the district court's decision to admit an expert's testimony is then reviewed for abuse of discretion. NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 788 (7th Cir. 2000) (citations omitted).
Following this standard, we first examine whether the district court applied the proper framework. This step "evaluates the reliability of the testimony" and should "reject any subjective belief or speculation." Ammons, 368 F.3d at 816 (citations and internal quotation omitted). The court "must ensure that the expert testimony at issue `both rests on a reliable foundation and is relevant to the task at hand.'" United States v. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir.2000) (quoting Daubert, 509 U.S. at 597, 113 S. Ct. 2786). During the bench trial, both proposed experts testified about their experience, indicating "specialized knowledge" related to the rate of installation of drywall. Fed. R.Evid. 702. Hull testified to his extensive experience in taping drywall and in training the apprentice tapers. Parr testified to his extensive experience in cost estimating in the construction industry. Royal argues that the witnesses' methodology was insufficiently scientific or reliable. This court has previously noted, however, that "[a]lthough the Daubert Court identified a number of factors to be considered when evaluating the admissibility of expert testimonyincluding testing, peer review, error rates, and acceptability within the relevant professional communitythese factors do not establish a definitive checklist." Cruz-Velasco, 224 F.3d at 660 (citations omitted). The Daubert Court also recognized that expert testimony was not limited to scientific testimony by acknowledging that "Rule 702 also applies to `technical, or other specialized knowledge[,]'" even though the Daubert opinion was "limited to the scientific context because that is the nature of the expertise offered" in that case. Daubert, 509 U.S. at 589-90 n. 8, 113 S. Ct. 2786. This court has "recognized that while extensive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." United *788 States v. Parra, 402 F.3d 752, 758 (7th Cir.2005) (internal quotation and citation omitted). Accordingly, we "consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000). Given the qualifications of Hull and Parr, their testimony appears to be sufficiently reliable. Because it is based on specialized knowledge as opposed to subjective beliefs or speculations, the witnesses meet the first prong of the two-part test under Rule 702. See Ammons, 368 F.3d at 816.
Next we examine whether the experts' testimony would assist the trier of fact. The district court referred to Daubert in admitting the experts and noted that, in the context of a bench trial, the judge would be able to consider any shortcomings of their expertise drawn out through cross-examination. See In re Salem, 465 F.3d 767, 777 (7th Cir.2006) (noting that if "the gatekeeper and the factfinder are one and the samethat is, the judgethe need to make such decisions prior to hearing the testimony is lessened" (citation omitted)). The district court judge, the finder of facts in this case, remained open to any criticism of their testimony on cross-examination, but it can be inferred from her statements that she considered their testimony helpful in determining the facts. We conclude that their testimony was relevant and helpful to the issues at trial. Accordingly, under Daubert, Hull and Parr were qualified to offer expert testimony regarding the rate of drywall taping.
Since the district court applied the proper framework, we next consider whether the district court abused its discretion in admitting the testimony of the experts. The district court aptly observed in overruling Royal's objection to Hull's testimony as an expert that he
worked for many years in the industry, directly, himself, taping drywall, and now training for more than 10 years, all the apprentices in the area, including those employed by the defendant himself. If this gentleman is not an expert on the issue of how much can be reasonably expected [of] a drywall taper to do in a day, I don't know [if] there is such a person.
Regarding Parr, the district court observed that "[t]his is a gentleman who does cost estimating on a regular basis, he uses a source that's widely recognized and agreed to in the construction industry. . . . [and] has done [cost estimating] for 30 years." The district court exercised discretion in admitting the experts, and we find no abuse in admitting the testimony of these two individuals as experts at trial. Royal's objections are therefore without merit.
Royal next contends that the district court clearly erred in determining the productivity rate to be 2.86 boards per hour. Royal pointed out a number of inconsistencies and inadequacies in the Trustees' witnesses' testimony and in the documentary evidence. Contrary to Royal's assertion, the determination of the productivity rate is a factual question separate from a legal interpretation of a collective bargaining agreement, and is therefore reviewed for clear error. Keach, 419 F.3d at 634 (citation omitted). Royal submits a dozen alleged inconsistencies and errors in the district court's assessment of witnesses' testimony and documentary evidence. For example, Royal argues that the court should have considered higher productivity rates contained in several exhibits, and it should have ignored the materials audit because it was flawed. Royal also alleges that the district court mischaracterized *789 the testimony of Royal's owner Salma Darwan and made factual errors, such as finding that Royal hired more apprentices than other contractors. Our review of these objections and alleged flaws discloses no clear error in the district court's ultimate findings. Individually or cumulatively, these objections do not overcome the rationale of the district court's opinion; again, we are not "left with the definite and firm conviction that a mistake has been committed." Gaffney, 451 F.3d at 447-48 (citation and internal quotation omitted). To the extent that the parties contest the burden of proof, we note that such burden shifting is inapplicable once the question reaches the fact finder. See Reinke, 347 F.3d at 265 ("This case was tried. . . . [t]he only question that matters thus is whether the district judge's decision is clearly erroneous."). Royal's objections to the 2.86 boards per hour productivity rate are therefore without merit.
Finally, in a cursory, two-paragraph argument in its opening brief, without citations to the record or authority, Royal asserts that the district court's award of liquidated damages for late payments in the amount of $17,955.82 was without support in the record. We could consider such "unsupported and undeveloped arguments" to be waived. United States v. Turcotte, 405 F.3d 515, 536 (7th Cir.2005) (citations omitted). We will, however, address Royal's argument since proving a negative proposition is inherently difficult and since we can discern the crux of the argument. United States v. Newman, 144 F.3d 531, 543 n. 13 (7th Cir.1998) (noting "the difficulty in proving a negative proposition"). Royal's argument fails regardless because evidence in the record supports the district court's award of damages.
We review the district court's award of damages for clear error. Wheel Masters, Inc. v. Jiffy Metal Prods. Co., 955 F.2d 1126, 1131 (7th Cir.1992) ("Our standard of review of [the] damage award is the same as our standard of review of any factual findingthe damage award cannot be overturned unless the factual basis for the award is clearly erroneous."). The collective bargaining agreements provided for liquidated damages of ten percent of the amount owed for tardy contributions that remained unpaid for twenty days after the month in which the hours were worked. The district court's damage award relied on a document admitted at trial as Plaintiff's Exhibit 15,[3] in which an auditor calculated the liquidated damages for late payments at $23,875.50. At trial, Royal's owner was asked if he had any basis for disputing the amount of liquidated damages revealed by that audit, and he responded that he had none. The district court based the liquidated damages on this amount, reducing the amount by *790 $5,044.18 (the sum of two months' worth of penalties) because a previous settlement and release between the parties encompassed those two months, arriving at the $17,955.82. Royal points to no authority in its opening brief indicating that such uncontradicted evidence is an insufficient basis for the award. Because this sum was reasonably based on evidence that was admitted at trial and contained in supplemental briefing, the district court did not commit clear error in assessing $17,955.82 in liquidated damages.
Royal similarly objects to the Trustees' reliance on the final audit report, arguing that the Trustees were required to show each tardy payment, not just the total amounts. As discussed above, however, the Trustees did produce evidence of the total amount of liquidated damages through the final audit and the requested supplemental briefing, and further elicited from Royal's owner that he had no basis to dispute the totals. While Royal remained free to produce evidence to contradict the Trustees' evidence, sufficient evidence was present in the record at trial and in the supplemental briefing for the district court to discern an amount of liquidated damages without committing clear error. Royal's argument is therefore without merit.
Royal also asserts that it cannot be held liable for liquidated damages because the Trustees' complaint did not properly plead a claim for such damages. This is a distinct argument against the award of liquidated damages and Royal did not present this argument in its opening brief. This argument is therefore forfeited. NLRB v. IBEW, Local Union 16, 425 F.3d 1035, 1041 (7th Cir.2005) ("An argument raised for the first time in a reply brief is forfeited.") (citations omitted).
III.
The district court did not commit clear error in finding that Royal's time sheets were insufficient or in determining the productivity rate from which the contributions to the Funds could be calculated. Additionally, the district court did not abuse its discretion in admitting expert testimony to assist the trier of fact in determining the rate of drywall installation to be used. Furthermore, the district court did not clearly err in awarding the Trustees liquidated damages. Accordingly, we AFFIRM the judgment of the district court.
NOTES
[1] Royal argues that the district court's determination that the time sheets were sufficient should be reviewed de novo. The sufficiency of time sheets, however, is a factual question requiring the district court to determine whether the time sheets are, in fact, accurate. Further determining whether those time sheets are sufficient to ascertain benefits requires an application of the law to the facts. Both findings are reviewed for clear error. Keach, 419 F.3d at 634 (citation omitted).
[2] Royal also argues that a third individual, Steven Klomfar, should not have been admitted as an expert. Klomfar, however, was not offered as an expert and testified as a factual witness based on his personal knowledge. Royal also mentions a fourth individual in this section of its brief, Howard Levinson, an accountant who conducted the materials audit. Levinson similarly was not offered as an expert at trial, and he did not propose a productivity rate of his own. Instead, Levinson used a rate provided by others and testified as to his own knowledge of the audit process. We therefore need not conduct a Daubert analysis of the testimony of Klomfar or Levinson.
[3] Royal complains that the district court's liquidated damages award was based on a document and affidavit tendered to the court in response to the district court's request for additional briefing on damages, but which was not admitted at trial. Royal contends that only documents admitted at trial could be considered in the supplemental briefing. Regardless, the critical document listing the amount of liquidated damages was admitted at trial as Plaintiff's Exhibit 15. Supplementation of the trial record before the district court, which Royal argues the Trustees should have done, was arguably unnecessary. Furthermore, if the district court desired to consider such additional evidence (as it apparently did by citing to it in its decision), such "decisions regarding the admission and exclusion of evidence are peculiarly within the competence of the district court." Adams v. City of Chicago, 469 F.3d 609, 612 (7th Cir. 2006) (citation and internal quotation omitted). Royal had the opportunity to respond to the Trustees' briefing and exhibits with its own proposed calculations, and the district court did not abuse its discretion by admitting or relying on the additional materials. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249547/ | 237 S.E.2d 339 (1977)
34 N.C. App. 141
STATE of North Carolina
v.
Joshua MOORE.
No. 778SC265.
Court of Appeals of North Carolina.
September 21, 1977.
*340 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Richard L. Griffin, Raleigh, for the State.
Turner & Harrison, by Fred W. Harrison, Kinston, and I. Joseph Horton, Snow Hill, for defendant appellant.
MORRIS, Judge.
The defendant's first assignment of error is directed to the court's failure to grant a nonsuit as to the two assault charges at the close of all the evidence. In support of this assignment of error the defendant argues that the indictment for murder was based upon the felony assault charge under the felony murder theory and that the doctrine of merger operates so as to require the dismissal of the assault charge upon the dismissal of the murder charge. Defendant asserts that failure to dismiss the assault charge places the defendant twice in jeopardy. We disagree.
The common law doctrine of merger is a judicial tool to prevent the subsequent prosecution of a defendant for a lesser included offense once he has been acquitted or convicted of the greater. It is primarily a device to prevent the defendant from being placed twice in jeopardy for the same offense. 22 C.J.S. Criminal Law § 10. The defendant asserts that the failure of the felony murder charge should require the judge to nonsuit the State as to the assault charge at the same trial, but gives *341 no authority for such a proposition, and our research reveals none. The cases relied upon by the defendant hold that a defendant, convicted and sentenced for murder based upon a felony murder theory cannot also be sentenced for the lesser included felony since the lesser included felony is said to have merged into the murder charge, the lesser charge having been proved as essential elements in the offense of murder. State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972); State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972). In the instant case there was no murder conviction, but rather a dismissal of the murder charge. The cases cited do not support the proposition that the doctrine of merger be extended to require the dismissal of all lesser included charges upon the dismissal of the murder charge. The defendant cites authority to the effect that a defendant acquitted of a greater offense cannot subsequently be tried for a lesser included offense. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970). This rule of law does not aid the defendant, however, for he was not subjected to a subsequent prosecution. The defendant was on trial under three indictments and only onethe murder chargewas dismissed. The trial continued upon the assault indictments. The defendant asserts that the prohibition against double jeopardy prohibits prosecution under the assault indictments since they, having merged with the murder charge, should have been dismissed when the murder charge was dismissed. Apparently, the defendant's reasoning is that the continued prosecution under the assault indictments after the point at which they should have been dismissed, constitutes a second prosecution. Having decided that the assault charges had not merged so as to require their dismissal with the murder charge, the contention regarding double jeopardy becomes groundless.
The defendant's second assignment of error is directed to the court's limitation of defense counsel's argument before the jury. The trial judge sustained an objection to the defense attorney's comment relating to the possibility of life imprisonment facing defendant when the trial began. Defendant contends that G.S. 84-14, which, in part, provides that "... the whole case as well of law as of fact may be argued to the jury" confers upon counsel the right to have presented this argument. At issue is whether the "whole case" under the statute would include the murder indictment no longer before the jury because of its dismissal by the trial judge. The case before the jury at the time of counsel's argument consisted of the two assault indictments. The murder charge had been dismissed and comment relating to a possible sentence under that charge was neither relevant nor material to the remaining assault charges before the jury and was not within the protection of the statute. The trial judge is allowed discretion in controlling the arguments before the jury and he may restrict comment on facts not material to the case. State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960); State v. Williams, 3 N.C.App. 463, 165 S.E.2d 52 (1969). The murder charge, having been dismissed, was no longer material to the case before the jury, and it was within the judge's discretion to restrict comment relating to it.
No error.
BROCK, C. J., and BRITT, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249554/ | 218 Va. 352. (1977)
JANICE LEONARD McCREERY
v.
FRANCIS DANIEL McGREERY, JR.
Record No. 761067.
Supreme Court of Virginia.
September 1, 1977.
Betty A. Thompson for appellant.
Martin A. Gannon for appellee.
Present: All the Justices.
Mother was granted temporary custody of children. Thereafter, father was awarded divorce a mensa thoro from mother on ground of desertion. The chancellor, after an ore tenus hearing, awarded permanent custody of children to father with visitation rights to mother. Mother argues on appeal that tender years presumption controls in Virginia and that chancellor erred in failing to apply it; that evidence does not support chancellor's conclusion that father's home was best environment; and that she was denied equal protection because treated differently from father on the basis of her employment.
1. The mother is the natural custodian of her child of tender years and, if she is a fit and proper person, other things being equal, she should be given custody. The tender years presumption is relevant only in custody disputes between natural parents but the primary and controlling consideration is the child's welfare. The inference controls unless in a particular case it is overcome by evidence that the right of the child will be better served by awarding custodial care to the father. Mullen Mullen, 188 Va. 259, 49 S.E.2d 349 (1948) followed.
2. The tender years presumption controls only when the mother is fit and factors affecting the quality of custodial care received by a child are equal. The quality of custodial care is determined not only by the training, talent and resources of the custodian but by the motivation of the custodian to make proper provision for the physical needs of the child, its psychological and emotional health, its intellectual and cultural growth, and its moral development. Although fully qualified in other respects, a person may be too ill-suited by temperament or too preoccupied with personal pursuits to administer proper care to a child. The courts are guided by histories of past performance and prospects of future performance in comparing the quality of care offered by two parents.
3. While suitability of the home is not to be determined merely by comparing physical accommodations, and such a comparison is never dispositive, the adequacy of living facilities and the convenience of location of the home may be highly relevant in determining the suitability of the child rearing environment. The chancellor did not err in considering the comparison.
4. Accepting the premise that the rights of two working parents to the custody of their children are coequal, the chancellor did not divide working parents into classes according to sex nor did he base his decision upon a finding that mothers are not proper custodians unless they are full time housewives. Rather, comparing the quality of custodial care offered by two working parents, he decided the effect of the mother's employment on her habits and behavior, her preoccupation with the glamour of her work and her relationship with her supervisor were such that the interests of the children would be best served by awarding custody to the father. There was no invidious discrimination.
5. Although chancellor erroneously concluded that the tender years presumption was abolished in Virginia, his finding that factors affecting custodial care were not equal based upon evidence ore tenus is presumed to be correct as is his decision that the interests of the children will be best served by awarding custodial care to the father.
Appeal from a decree of the Circuit Court of Fairfax County. Hon. David H. Boyd, judge pro tempore presiding.
POFF, J., delivered the opinion of the Court.
This appeal arises from an inter-parental dispute over child custody.
By decree entered March 12, 1976, Francis Daniel McCreery, Jr., was awarded a divorce a mensa et thoro on the grounds of desertion. Ten days earlier, his wife, Janice Leonard McCreery, had been granted temporary custody of their two daughters, then aged two and four. Following ore tenus hearings and pursuant to a letter opinion dated April 8, 1976, the chancellor entered an order on April 16, 1976 awarding permanent custody to Mr. McCreery and visitation rights to his wife. The chancellor denied Mrs. McCreery's motion to stay execution of the order pending appeal.
The crucial question raised by Mrs. McCreery is: "Did the chancellor err in expressly holding that this Court has abolished the 'tender years presumption' and in failing to find it controlling in this case?" This question posits two issues, viz $ ::$ whether the "presumption" has been abolished, and, if not, whether it is controlling here.
In Mullen Mullen, 188 Va. 259, 270-71, 49 S.E.2d 349, 354 (1948), we held that "the mother is the natural custodian of her child of tender years, and that if she is a fit and proper person, other things being equal, she should be given the custody". In his letter opinion, the chancellor construed our decision in Burnside Burnside, 216 Va. 691, 222 S.E.2d 529 (1976), "to overrule Mullen and all earlier cases in Virginia to the extent that there exists any presumption in favor of the mother as being the natural custodian."
As appears from our decision in Harper Harper, 217 Va. 477, 229 S.E.2d 875 (1976) (decided after the date of the chancellor's letter opinion) affirming the chancellor's application of the presumption, and as the husband concedes on brief, Burnside did not overrule Mullen and its progeny. On the contrary, Burnside fully acknowledged the Mullen rule. Analyzing the circumstances disclosed by the evidence, quoting the chancellor's conclusion that "all things are not equal in this case", and citing Portewig Ryder, 208 Va. 791, 794, 160 S.E.2d 789, 792 (1968), where we said that the rule "is not to be applied without regard to the surrounding circumstances", we invoked the maxim that, notwithstanding the "presumption" and other "secondary" matters, "the primary and controlling consideration is the child's welfare." Burnside Burnside, supra, 216 Va. at 692-93, 222 S.E.2d at 530-31.
Confusion about the nature and function of the so-called "tender years presumption" results from confusion between two important societal values - the right of a parent to custody of its minor child and the right of a child to the custodial care of a parent. In the scale of values, society gives priority to the latter. This is so principally because society owes one of its dependent members a duty superior to the duty it owes a self-sufficient member.
The "tender years presumption" is relevant only in custody disputes between natural parents. Yet, it has nothing to do with the respective rights of the two parents. Rather, it has to do with the right of the child. The "presumption" is, in fact, an inference society has drawn that such right is best served when a child of tender years is awarded the custodial care of its mother. See Harper Harper, supra, 217 Va. at 479, 229 S.E.2d at 877. The courts, acting in the interest of society at large, apply that inference irrespective of the rights of the parents. And that inference controls unless, in particular case, it is overcome by evidence that the right of the child will be better served by awarding the child the custodial care of its father.
By definition, the inference controls only when the evidence shows that the mother is fit and "other things" affecting the child's welfare are equal. Even when it appears that both mother and father are fit parents, other things yet may be unequal. These "other things" are things which affect the quality of the custodial care received by the child. Quality is determined not only in terms of the training, talents, and resources of the custodian but also in terms of the motivation of the custodian to make proper provision for the physical needs of the child, its psychological and emotional health, its intellectual and cultural growth, and its moral development. Although fully qualified in other respects, a person may be too ill-suited by temperament or too preoccupied with personal pursuits to administer proper care to a child. Comparing the quality of care offered by two parents, the courts are guided by histories of past performance and prospects for future performance. If the comparison results in equipoise, the inference that the right of the child is best served by awarding the child the custodial care of the mother controls. We must decide whether, as Mrs. McCreery contends, the inference is "controlling in this case."
The letter opinion discloses that, notwithstanding his erroneous reading of Burnside, the chancellor considered what he called the "criteria" explicated in Mullen and based his decision upon "all of the surrounding circumstances" affecting the quality of custodial care offered by the two parents. Looking to the "environment for raising the children", he noted the difference in living accommodations. When Mrs. McCreery left her husband in January 1976, she and the children moved into "a two-bedroom apartment in an apartment complex" located several miles from the jointly-owned marital domicile. Mr. McCreery remained in the home, "a spacious, attractive and well-appointed detached residential dwelling with separate bedrooms for the children", located within two blocks of a school, the family's church, and the home of the children's babysitter. He testified that he planned to "buy out my wife's interest in the house" and live there with the children.
As Mrs. McCreery points out, "[suitability] of the home is not to be determined merely by comparing physical accommodations or material advantages." (Emphasis added). White White, 215 Va. 765, 768, 213 S.E.2d 766, 768 (1975); accord, Clark Clark, 217 Va. 924, 234 S.E.2d 266 (1977). While such a comparison, standing alone, is never dispositive, the adequacy of living facilities and the convenience of the location of the home may be highly relevant to the determination of the suitability of the child-rearing environment, and the chancellor committed no error in considering the comparison in this case.
The chancellor also considered what he called "the effect on [Mrs. McCreery's] life and her habits and behavior of her employment with the Federal Government, and of her attachment to her supervisor and fellow employee, Mr. Short." Mrs. McCreery argues that the chancellor denied her equal protection of the laws by "treating the mother differently from the father on the basis of her employment". In effect, she says that the right of a working mother to the custody of her child is equal to that of a working father, and that the decree constituted a judicial denial of her constitutional rights.
We examine the facts underlying the constitutional question. The McCreery's first daughter was born in January 1972. Three months later, Mrs. McCreery decided she wanted to return to work. Although she had had four years' experience as a school teacher, she applied for different work. Mr. McCreery testified that she had told him "over and over again" that "she hated teaching because it was babysitting." In April 1973, six months before the second child was born in October, Mrs. McCreery accepted a position which she held for five months. Three months after the birth of the second child, she began filing applications for a position with the Federal Government. In October 1974, when the older child was two years old and the younger one year old, Mrs. McCreery accepted a job at a level classified four grades below the level for which she had qualified. She testified that her husband wanted her to go back to work and that the reason she did so was to earn money to pay certain family bills. Mr. McCreery said that the family had no unpaid bills and that he had asked his wife not to return to work. The chancellor found that Mrs. McCreery had "sought outside employment to relieve her of the stress and anxiety of her household duties and chores and in connection with the raising of the children".
As federal employees, both parents were frequently required to make TDY (temporary duty) trips to distant cities. "Nine or ten times" Mrs. McCreery was accompanied by Mr. Short. On one such trip, she took the children to the home of a friend in Seaford and, without leaving word where she could be reached, went to Norfolk and registered at the same motel where Mr. Short was registered. After Mrs. McCreery left her husband, Mr. Short left his wife and stayed with two friends in an apartment. Mrs. McCreery gave him a key to the apartment where she and the children were living, and during the week preceding the custody hearing he spent two nights in her apartment and "stored" some of his clothes, shaving gear, and other personal effects there.
The chancellor drew what he called an "inescapable" inference but found that the evidence was insufficient to show that the children had been subjected to "any immoral influences" or that Mrs. McCreery "is an unfit mother." He concluded, however, that she "has, perhaps unconsciously, relegated these two little girls to a position secondary to her job and her relationship with Mr. Short."
Accepting the premise that the rights of two working parents to the custody of their children are coequal, see Code | 31-15 (Repl. Vol. 1973), we reject Mrs. McCreery's contention that the custody decree was the product of invidious discrimination. The chancellor did not divide working parents into separate classes according to sex. Nor did he base his decision upon a finding that mothers are not proper custodians unless they are full-time housewives. Rather, comparing the quality of custodial care offered by two working parents, he decided that the effect of Mrs. McCreery's employment on her "habits and behavior", i.e., her preoccupation with "the glamour of her work" and "her relationship with her supervisor", was such that "the interests of the two children in this case would be best served" by awarding the children the custodial care of a working father who "is willing to place the welfare of these children above all else, to a much greater extent than the mother".
Aside from the constitutional question, Mrs. McCreery contends that the chancellor's decision is not supported by the evidence and, therefore, constitutes an abuse of discretion. Several witnesses testified that Mr. McCreery performed many household chores and personal services for the children. On occasion, he prepared hot meals and washed the dishes, changed diapers and did the laundry, bathed and dressed the children, and took them to and from the babysitter's home where the children were left while the McCreerys were at work. The babysitter said that "[he] is a mother figure really in their eyes". One witness stated that Mrs. McCreery had told her that Mr. McCreery "had been as much a mother to the girls as she had". Based upon his findings during four hours of examination, Dr. Joel Ganz, Supervisor of Psychiatry at Georgetown University School of Medicine, described Mr. McCreery as "a very nurturing parent". "He's not only willing to be a father, he's willing to be a mother, in being able to serve both roles. I think he has a tremendous function for the children... rather than the usual working father role."
In his testimony concerning his wife's treatment of the children, Mr. McCreery recounted certain incidents which he felt were indicative of indifference and neglect. Mrs. McCreery's witnesses, her aunt, her sister, her brother-in-law, and a neighbor, testified that she had been a good mother to her children. The witnesses called by Mr. McCreery, none of whom were related to either party, described the differences in the relationship between the children and their two parents. The babysitter, who had been employed by both parties, testified that when the father comes to pick up the children, "they're overjoyed", "thrilled", "very excited", "all over him"; when the mother comes, "[they] are usually matter of fact, get their coats on and ready to go". After Mrs. McCreery left her husband and moved into the apartment, the children "went through a bad time. They were insecure... went back to carrying their security blankets." A neighbor who had known the McCreerys for more than nine years testified that the children were "constantly sitting in their daddy's lap" but that she had "never seen [Mrs. McCreery] be very affectionate with the children." Some time before the second child was born, Mrs. McCreery told the witness "that if she had to do this all over again, speaking of having children, that she didn't think that she would." Another family friend who frequently exchanged visits with the McCreerys testified that the children "are very open, spontaneous, and affectionate with their father. I have never really seen them be affectionate at all to their mother." "[When] I compare the two, the mother and the father, the way I see the children respond to both of them, they certainly do seem to be much better off with their father." Dr. Ganz was asked to describe the effect upon the children of having "another man, other than their father, spending two or three evenings a week at the apartment with the mother and every other weekend visitation privileges with the father". Dr. Ganz replied: "I would think the children in this situation might regress, they might start to thumb-suck if they'd stopped, they might get into bed-wetting and security blankets, things they have given up as independents, they might regress back to."
We hold that the evidence was sufficient to show that "other things" were not equal in this case; hence, the "tender years presumption" was not controlling. While, because of his misimpression that the "presumption" had been abolished, the chancellor did not expressly pronounce that the presumption had been overcome, the findings stated in his letter opinion were tantamount to a pronouncement that "other things" were not equal. Those findings, based as they were upon evidence heard ore tenus, and his decision that the interests of the children will be best served by awarding them the custodial care of their father are presumed to be correct. Reading from the transcript, we cannot say that the chancellor abused his discretion or that his decision was plainly wrong, and we will affirm the final order.
Affirmed.
I'ANSON, C.J., and CARRICO, J., dissent
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249555/ | 237 S.E.2d 874 (1977)
STATE of North Carolina
v.
Bobby Eugene WHEELER, William Ray Wheeler, and Robert Nabors Bridges.
No. 7726SC365.
Court of Appeals of North Carolina.
October 19, 1977.
*877 Atty. Gen. Rufus L. Edmisten by Sr. Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Guy A. Hamlin, Raleigh, for the State.
Bailey, Brackett & Brackett by Martin L. Brackett, Jr., and Terry D. Brown, Charlotte, for defendant-appellant Robert Nabors Bridges.
Paul J. Williams, Charlotte, for defendant-appellant Bobby Eugene Wheeler.
James F. O'Neill, Charlotte, for defendant-appellant William Ray Wheeler.
BRITT, Judge.
APPEAL OF BOBBY WHEELER AND ROBERT BRIDGES
By their first assignment of error, defendants Bobby Wheeler and Bridges contend that the court erred in failing to grant their motions to sever and to allow each defendant a separate trial. The assignment has no merit.
The question of consolidating offenses arising out of a single scheme or plan ordinarily is a matter within the discretion of the trial judge and his decision will not be disturbed absent a showing of abuse of discretion. 4 Strong's N.C. Index 3d, Criminal Law § 92. See State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972); State v. Greene, 30 N.C.App. 507, 227 S.E.2d 154 (1976). Defendants have failed to show any abuse of discretion in this case.
By the next assignments of error argued in their brief defendants Bobby Wheeler and Bridges contend the court erred in failing to suppress their in-court identifications by Calloway. They argue that the identifications were tainted by two illegalities: (1) the display of photographs by police to Calloway several hours after the crimes occurred; and (2) identification by Calloway of defendant Bobby Wheeler while in a police car at the scene of the crimes, and of defendant Bridges at a hospital shortly after the crimes were committed. These assignments have no merit.
The trial court conducted a lengthy voir dire hearing on defendants' motions to suppress the identification testimony. Calloway and the officers testified at the hearing. Following the hearing the court found facts with respect to Calloway's opportunity to observe defendants at the time of the offenses, his observation of defendants at that time, his viewing the photographs and his seeing defendants shortly after the crimes were committed. The court found and concluded that no illegal identification procedures relating to defendants were used and that the in-court identifications of all three defendants by Calloway were of independent origin, based solely on what he saw at the time the alleged crimes were committed, and did not result from any subjective pretrial identification procedures.
It is well settled that "when the admissibility of in-court identification testimony is challenged on the ground it is tainted by an out-of-court identification made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility; when the facts so found are supported by competent evidence, they are conclusive on appellate courts." 4 Strong's N.C. Index 3d Criminal Law § 66.20, p. 276.
The trial court's findings of fact in the instant case were fully supported by evidence presented at the voir dire hearing and the conclusions of law are fully supported by the findings of fact. The assignments of error are overruled.
Defendant Bridges assigns as error the admission of testimony by Calloway that he identified Bridges from a photograph shown him a few hours after the crimes were committed. This assignment is based on the premise that the display of photographs to Calloway was unduly suggestive. As stated above, the trial court made findings of fact and conclusions that the display of photographs was not suggestive and the findings and conclusions are fully supported *878 by the evidence. The assignment is overruled.
Defendants Bobby Wheeler and Bridges next assign as error the failure of the trial court to instruct the jury on the lesser included offenses of robbery with a firearm. We find no merit in this assignment.
"The trial court is not required to charge the jury upon the question of the defendant's guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees. Thus, the court is not required to submit to the jury the question of defendant's guilt of a lesser degree of the crime charged in the indictment when the state's evidence is positive as to each and every element of the crime charged." 4 Strong's N.C. Index 3d, Criminal Law § 115, pp. 610-611. See also State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Bryant, 280 N.C. 551, 187 S.E.2d 111, cert. denied, 409 U.S. 995, 93 S.Ct. 328, 34 L.Ed.2d 259 (1972).
With respect to the armed robbery charges, defendants argue that the trial court should have submitted as alternative verdicts the lesser included offenses of common law robbery, assault with a deadly weapon and simple assault. Since the State's evidence was positive and without conflict on all seven elements of the charge of robbery with a firearm, and there was no evidence to the contrary, instructions on the lesser included offenses were not required. The State's evidence showed that the defendants took possession of a safe, a pistol, and a blackjack in the presence of Calloway; that the safe was carried several feet and the pistol and blackjack were forcibly taken from Calloway; that Calloway did not voluntarily consent to the taking and carrying away of the property; that the defendants intended to keep the property permanently; that each defendant had a firearm at the time they obtained the property; and that they obtained the property by repeatedly threatening Calloway's life. On each of these points, the State's proof was positive and there was no conflict in the evidence.
Finally, defendants Bobby Wheeler and Bridges assign as error the trial court's instructions to the jury on the legal principle of acting in concert. Defendants argue that since the court gave one basic charge on acting in concert and then instructed the jury to apply the charge to each defendant, the charge amounted to a preemptory instruction. We find no merit in this assignment.
"If the defendant is present with another and with a common purpose does some act which forms a part of the offense charged, the trial judge must explain and apply the law of `acting in concert' . . . ." 4 Strong's N.C. Index 3d, Criminal Law § 113.7, p. 592. In this case, the trial judge was required to give an instruction on "acting in concert" with respect to the three defendants. The general rule is that a "court's charge to the jury is to be construed contextually and will not be held prejudicial when the charge as a whole is free from error." State v. Ware, 31 N.C. App. 292, 294, 229 S.E.2d 249, 251 (1976). Here, the court gave instructions on the legal principle of "acting in concert" at three points in the charge: (1) before defining the elements of robbery with a firearm, (2) before explaining the charge of assault with a deadly weapon with intent to kill, and (3) before instructing on the charge of assault with a firearm upon a law enforcement officer. The instructions contained the following language:
"Members of the jury, at this time I will instruct you on the law as to each charge against each defendant separate. First, I instruct you that for a person to be guilty of a crime it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit a crime each of them is held responsible for the acts of the others done in the commission of that crime. Members of the jury, this legal principle is referred to as acting in concert.
"As I instruct you on the law on each case against each defendant separately, the legal principle of acting in concert is equally applicable to each defendant, and *879 I will not define this legal principle again but I instruct you to remember it and apply it to each case against each defendant."
As required by State v. Forrest, 262 N.C. 625, 626, 138 S.E.2d 284, 285 (1964), the court's charge went to all "material aspects of the offense[s]" and was "complete within itself." The charge in this case did not involve the error of State v. Forrest, supra, since it did not require the jurors to rely on instructions which the court had given in other cases or which the jurors may have heard in other cases. Nor was the instruction on the legal principle of acting in concert a preemptory instruction. The court was only advising the jury as required of a legal theory which they could accept or reject as being applicable to this particular case. The court was not directing the jury to answer the issue of acting in concert in a particular manner if they found or did not find from the greater weight of the evidence that the facts were as the evidence tended to show. 7 Strong's N.C. Index 2d, Trial § 31.
For the reasons stated, we conclude that defendants Bobby Wheeler and Bridges received fair trials free from prejudicial error.
APPEAL OF WILLIAM RAY WHEELER
By his first assignment of error, this defendant contends that the court committed prejudicial error by failing to sever the five charges against him from the five identical charges against each of the other two defendants. For the reasons stated in the discussion above concerning the denial of the motions to sever by defendants Bobby Wheeler and Bridges, we find no merit in this assignment of error.
By his second assignment of error, defendant William Wheeler contends that the court erred in failing to quash the five indictments against him because the officers failed to take him before a magistrate for an initial appearance immediately after the on-the-scene identification by Calloway. We find no merit in this assignment.
G.S. 15A-501(2) and G.S. 15A-511(a)(1) provide that a law enforcement officer making an arrest with or without a warrant must take the person arrested before a magistrate "without unnecessary delay." In this case, defendant William Wheeler was identified at the scene immediately after the alleged crime, at approximately 4:00 a.m., and was then taken to the Charlotte Law Enforcement Center where Calloway happened to see him again around 5:00 a.m. The statutes only require that the defendant be taken before a magistrate "without unnecessary delay" and a delay of only one hour after the defendant had been taken into custody and advised of his rights could not be considered undue delay under the facts of this case.
Under this assignment, defendant William Wheeler also contends that there was an illegal lineup a short while after the crimes were committed. This contention has no validity.
The fact that Calloway inadvertently observed the defendant when he arrived at the Law Enforcement Center was not an illegal lineup since proceedings had not yet been filed against him. See 4 Strong's N.C. Index 3d, Criminal Law § 66.3; State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), modified on other grounds, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976). Nor was the inadvertent viewing of the defendant by Calloway so impermissibly suggestive that it tainted the photographic identification or the in-court identification. State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977). See also State v. Vawter, 33 N.C.App. 131, 234 S.E.2d 438 (1977). According to the order following the voir dire hearing, both the photographic and in-court identifications were found to be based on independent observations made at the time of the alleged crimes. For the reasons stated in the appeal discussed above, the trial court's findings of fact and conclusions of law after the voir dire concerning the identification of the defendant by Calloway and the three police officers are conclusive and binding on this court. We hold that defendant's motions to quash the five indictments were properly denied.
By his third and fourth assignments of error, defendant William Wheeler contends the court erred in permitting his identification *880 at the voir dire and before the jury by Calloway, Officer McKiernan, Officer Hooper and Officer Kelly. For the reasons stated in the above discussion concerning Calloway's photographic and in-court identifications of defendants Bobby Wheeler and Bridges, we find no merit in either of these assignments of error.
By his seventh assignment of error, defendant William Wheeler argues that the trial court erred in its instructions to the jury in several respects. We find no merit in this assignment of error.
Defendant's contentions that the instructions on robbery with a firearm and acting in concert were preemptory instructions are without merit for the reasons set forth above in a similar argument made by defendants Bobby Wheeler and Bridgers. Defendant's assertion that these two instructions were expressions of the trial judge's opinion in violation of G.S. 1-180 is equally without merit. These two instructions involved applicable legal principles which required instruction, 4 Strong's N.C. Index 3d, Criminal Law §§ 111, 113.7, 114, p. 592, and when viewed in the context of the charge as a whole were neither improper nor misleading to the jury. State v. Ware, supra.
Defendant's contention that there is no evidence to support the trial court's instructions that Officers Hooper and Kelly were acting in the performance of their duties when allegedly assaulted by defendant is also without merit. As to Officer Hooper, the evidence showed that Officers McKiernan and Hooper arrived at the Tree House Lounge in response to a report by Calloway's wife of suspicious circumstances at the lounge; that upon arrival both officers observed security officer Calloway and defendant Bridges approach the police car; that Calloway was without a shirt, his gun holster was empty and he was bleeding about his head; that Calloway told the officer he had fallen on a beer bottle and that Bridges was part of the clean-up crew; and that when Calloway made a motion with his eyes toward Bridges, Officer McKiernan requested Calloway to step to the patrol car while Officer Hooper attempted to prevent defendant Bridges from pulling a gun. This evidence tended to show that Officer Hooper was in the process of investigating an apparent assault on Calloway when Bridges pulled a gun and with the other two defendants began shooting at Officer Hooper.
In a similar manner the evidence shows that Officer Kelly was acting in the line of duty as a police officer when he was assaulted. He responded to a call for help at the Tree House Lounge around 3:30 a.m. Upon his arrival he saw the three defendants running and ordered them to stop, but they kept running and started firing in his direction. Officer Kelly returned fire. This evidence clearly tended to show that Officer Kelly was acting in the line of duty when assaulted since he was responding to a call for help from other officers and participating in the investigation of an assault and robbery at the Tree House Lounge.
Finally, defendant William Wheeler contends in his eighth assignment of error, that the trial court erred in failing to set aside the armed robbery conviction. We find no merit in this contention.
Defendant William Wheeler argues that since he was found not guilty of feloniously assaulting Calloway, the verdict of guilty of armed robbery of Calloway was inconsistent with that verdict and should not be allowed to stand. This argument is not persuasive.
In State v. Teel, 2A N.C.App. 385, 386, 210 S.E.2d 517, 518 (1975), the court stated:
"The crime of armed robbery includes an assault on a person with a deadly weapon. However, where the assault charged contains a necessary ingredient which is not an essential ingredient of armed robbery, the fact that the assault is committed during the perpetration of the armed robbery does not deprive the assault of its character as a complete and separate offense. State v. Richardson, 279 N.C. 621, 185 S.E.2d 102. Consequently, an assault with a deadly weapon inflicting serious injury, as charged against defendant and as defined in G.S. 14-32(b), is not a lesser included offense of armed robbery because the infliction of serious injury is not an essential ingredient *881 of armed robbery. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844."
Applying this reasoning to the present situation, the defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury under G.S. 14-32. This offense cannot be considered a lesser included of armed robbery. The two offenses are separate and complete and an acquittal on the assault charge would not bar a conviction on the armed robbery charge. State v. Teel, supra.
In addition, there is no requirement in North Carolina that verdicts be consistent. In 4 Strong's N.C. Index 3d, Criminal Law § 124.5, p. 653, the following rule is stated: "It is not required that the verdict be consistent; therefore, a verdict of guilty of a lesser degree of the crime when all the evidence points to the graver crime, although illogical and incongruous, or a verdict of guilty on one count and not guilty on the other, when the same act results in both offenses, will not be disturbed."
We conclude that defendant William Wheeler received a fair trial, free from prejudicial error.
No error.
HEDRICK and MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249556/ | 269 S.C. 301 (1977)
237 S.E.2d 366
Joyce H. MERRITT, as Executrix of the Estate of James Lee Merritt, Appellant,
v.
Albert D. SMITH, Respondent.
20500
Supreme Court of South Carolina.
August 30, 1977.
*302 Rentz & DeBerry, of Columbia, for Appellant.
*303 Turner, Padget, Graham & Laney, of Columbia, for Respondent.
August 30, 1977.
NESS, Justice:
Appellant appeals from the trial court's granting of summary judgment in this a wrongful death action. We conclude that the court providently granted the motion for summary judgment as there were no material issues in dispute. Garrett v. Reese, 262 S.C. 327, 204 S.E. (2d) 432 (1974); Cisson v. Pickens Savings & Loan Association, 258 S.C. 37, 186 S.E. (2d) 822 (1972).
The uncontested facts reveal that Appellant's testate, James Lee Merritt, his supervisor, H.H. Pharr, and the respondent Albert D. Smith from the management level of the company's Charlotte Office were in Columbia to attend and *304 participate in a dealers meeting. All three registered at the King of the Road Motel and then rode together to a company meeting at the Hilton Town House in Pharr's company car. After the meeting, in which all three participated, they left to return to their motel. Prior to reaching the motel, at the suggestion of one of them, they decided to go get something to eat at the Waffle House which was beyond their motel. They left the Waffle House with respondent driving the company automobile, en route to the motel, when they were involved in a one car accident in which Merritt was killed. A workmen's compensation claim was filed alleging Merritt was an employee of Philco-Ford Corporation and over $22,000.00 was paid to the heirs of the deceased.
The primary issue raised by this appeal is whether there was a genuine issue as to some material fact which would preclude the issuance of summary judgment. Title Insurance Company of Minnesota v. Christian, 267 S.C. 71, 226 S.E. (2d) 240 (1976); Eagle Construction Co. v. Richland Construction Co., 264 S.C. 71, 212 S.E. (2d) 580 (1975).
Appellant asserts two contested issues of fact: (1) whether both the deceased and respondent were employed by the same employer on the date of the accident, and (2) whether the respondent was conducting his employer's business at the time of the accident.
The workmen's compensation proceeding identified Merritt's employer as Philco-Ford Corporation. Respondent's amended answers in this case also alleged,
"... both Plaintiff's testate and Defendant were fellow employees of the Philco-Ford Corporation," .... The second amended answer deleted "Philco-Ford Corporation" and substituted in its stead "Ford Marketing Corporation."
The appellant, in response to requests for admission, admitted "that as of the date of his death, Plaintiff's testate was an employee of Ford Marketing Corporation."[1] The *305 respondent, Smith, on numerous occasions during his deposition testified that as of the date of the accident he was employed by Ford Marketing Corporation.[2] The witness Pharr in his affidavit and in his supplemental affidavit also so testified.[3] Appellant never interposed any affidavit or deposition to refute this fact but relied solely on the allegation in the First Amended Answer, which was subsequently corrected. This error, standing alone, does not create an issue of fact. The only reasonable inference to be drawn from the record is that the employer of both men was Ford Marketing Corporation.
"Where the appellant relies solely upon the pleadings, files no counter-affidavits, and makes no factual showing in opposition to a motion for summary judgment, the lower court is required under this rule, to grant summary judgment, if, under the facts presented by the respondent, he was entitled to judgment as a matter of law." Conran v. Yager, 263 S.C. 417, 420, 211 S.E. (2d) 228, 229 (1975).
Having concluded that the Appellant's testate and Respondent were employed by Ford Marketing Corporation, it becomes necessary to determine if the Respondent and Appellant's testate were acting within the course and scope of their employment at the time of the alleged negligent act sued upon. The Respondent relies upon the co-employee immunity provision of South Carolina Code, § 42-5-10 which, applied to this case, in substance, provides that an employee covered by workmen's compensation (who is acting within the course and scope of his employment) cannot sue at common law "those conducting his (the employer's) business." In Nolan v. Daley, 222 S.C. 407, 73 S.E. (2d) 449 (1952) this Court, interpreting the predecessor to § 42-5-10 said: ".... `those conducting his (the employer's) business' should be construed to include any person who, as an employee of a covered employer, was performing any work *306 incident to the employer's business, regardless of whether employed in a menial, supervisory or managerial capacity." Nolan v. Daley, 222 S.C. at 415-416, 73 S.E. (2d) at 453. See also Powers v. Powers, 239 S.C. 423, 123 S.E. (2d) 646 (1962); Young v, Warr, 252 S.C. 179, 165 S.E. (2d) 797 (1969); Boykin v. Prioleau, 255 S.C. 437, 179 S.E. (2d) 599 (1971).
Hence, in determining whether the co-employee immunity provision will apply to the instant fact situation as a matter of law, our inquiry is twofold: Was an issue of fact created touching upon whether the Appellant's testate's death resulted from an accident arising out of and in the course of his employment or whether the Respondent at the time of the accident was conducting the business of his employer?
The status of the Appellant's testate was the same as that of the Respondent; both had just left an out-of-town dealer's meeting, both were in a company car with their direct supervisor, both had gone to eat with their supervisor and were in the process of going by direct route to their motel. The fact that one was driving the automobile and the other was riding as a passenger constitutes no distinction between the status of one and of the other. Nor does the fact that one seeks immunity by reason of the Compensation Act and the other attempts, in effect, to avoid coverage and the co-employee immunity to prosecute a common law action affect the applicability of § 42-5-10. In Adams v. Davison-Paxon Company, 230 S.C. 532, 545, 96 S.E. (2d) 566, 572 (1957) this Court observed:
"... if an employer is within the act to bear its liabilities, he must remain to be accorded its immunities, in the absence of a clearly expressed legislative intention to the contrary."
Since the co-employee's right of immunity parallels that of an employer, the same principle applies.
*307 No South Carolina case has been cited which is factually analogous to the present situation. However, in Larson's treatise on Workmen's Compensation Law, § 25.21, it is generally observed that accidents arising while an employee is eating or traveling to and from an eating establishment while out-of-town are acts within the course and scope of employment. These acts, though strictly personal, are incidental to the work and should be anticipated by the employer. A review of the cases cited by Larson establish that generally the trip to and from an eating establishment, as well as the taking of meals themselves, while on out-of-town business are within the course and scope of employment unless the circumstances attending the taking of the meal constitutes a deviation. Also see Mack v. Branch No. 12, Post Exchange, Fort Jackson, 207 S.C. 258, 35 S.E. (2d) 838 (1945).
The principle which evolves from those cases is the same as that articulated in Beam v. State Workmen's Compensation Fund, 261 S.C. 327, 200 S.E. (2d) 83 (1973). There a school teacher was en route to an out-of-town meeting of the South Carolina Education Association to be held the following day when she was involved in an automobile accident. The teacher had been encouraged by the school administration to attend the meeting; her travel was held to be within the course and scope of employment. The governing standard is,
"... that an employee, to be entitled to compensation, need not be in the actual performance of the duties for which he was expressly employed in order for his injury or death to be in the `course of employment' and thus compensable. It is sufficient if the employee is engaged in a pursuit or undertaking consistent with his contract of hire and which in some logical manner pertains to or is incidental to his employment." Beam v. State Workmen's Compensation Fund, 261 S.C. at 332, 200 S.E. (2d) at 86.
*308 Appellant relies on the case of Boykin v. Prioleau, supra. Actually, in Boykin this Court recognized and applied the same principle as that enunciated by the Larson treatise, except that Boykin was concerned with the deviation of travel to and from work. In Boykin the employer provided transportation for several employees to and from the place of business. The employee charged with providing the transportation left work one night and, instead of going directly to the employees' residences, took them on an extended joyride. During the joyride, intoxicants were consumed and stops were made at two houses, two nightclubs and over three hours later at a restaurant. After leaving the restaurant and heading for one of the employee's homes, the employees were involved in an accident.
The Court held that the employees had deviated from the scope of employment when they,
"... almost immediately upon driving away from his employer's place of business, Dickerson (the employee driver) forsook the task assigned to him and embarked upon the pursuit of his own ends. It is abundantly clear that while thus engaged he was not conducting his employer's business within the meaning of the statute. Whether upon leaving the Farrow Road restaurant, several miles from the point of deviation, and starting back toward Columbia he resumed the scope and course of his employment was, at best from defendant's standpoint, a jury issue." Boykin v. Prioleau, 255 S.C. at 441, 179 S.E. (2d) at 600.
In the instant case, there is no question that the trip to the restaurant was not such a deviation as to remove the Appellant's testate or the Respondent from the course and scope of employment. Thus, this accident occurred while the Respondent was about the business of his employer, Ford Marketing Corporation, and the trial court was correct in granting summary judgment.
*309 This conclusion renders it unnecessary to consider the Respondent's additional sustaining grounds. The motion for summary judgment was properly granted.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur.
NOTES
[1] Admission No. 1, Tr. 136.
[2] Tr. 22, f. 67; Tr. 23, f. 88; Tr. 24, f. 93-94.
[3] Tr. 103; Tr. 141. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249557/ | 142 Ga. App. 805 (1977)
237 S.E.2d 455
FOSTER
v.
THE STATE.
53435.
Court of Appeals of Georgia.
Submitted January 31, 1977.
Decided July 13, 1977.
Sidney L. Moore, Jr., for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Assistant District Attorneys, for appellee.
BELL, Chief Judge.
The defendant was indicted for possession of a tool for the commission of a crime, the indictment alleging he had in his possession a "tool commonly used in the commission of burglary and theft, to wit: 1 screwdriver. Said accused having possession of said tool with intent to make use of same in the commission of said crimes." He waived trial by jury and was found guilty by the court and was sentenced. The appeal challenges the admissibility of certain evidence and the sufficiency of the evidence. Held:
1. Defendant was arrested in an automobile shortly after he was seen attempting to enter the van. A piece of bent coat hanger wire was in plain view in the back seat. The coat hanger wire was properly admitted in evidence as a circumstance connected with defendant's arrest. State v. Luke, 232 Ga. 815 (209 SE2d 165).
2. Police officers hidden inside a private van observed the defendant attempting to enter the van by prying open a vent window with a screwdriver. The defendant was unsuccessful and was later apprehended by the police. This evidence was sufficient to authorize the trial judge to conclude that the defendant had possessed a screwdriver with the intent to commit a theft. However, there was no evidence showing that defendant had possessed the screwdriver with intent to commit a burglary as also alleged in the indictment. The state's evidence dealt solely with the attempted entry into the vehicle, and there was no showing that the vehicle was designed for use as a dwelling. Therefore, there was no evidence which even suggested the crime of burglary. Massey v. State, 141 Ga. App. 557 (234 SE2d 144). As the evidence was sufficient to authorize the conviction for that part of the indictment alleging that the defendant had the screwdriver in his possession with an intent to commit theft, that part of the judgment of conviction is affirmed. The portion of the judgment of conviction for possession of a tool with intent to commit burglary must be reversed as not being authorized by the evidence. Direction is given to the trial court to vacate the sentence and to resentence the defendant for possession of the *806 screwdriver with intent to commit theft. Obviously the erroneous part of the judgment of conviction pertaining to burglary may have affected the sentence.
Reversed in part and affirmed in part with direction. Deen, P. J., Quillian, P. J., Webb, Marshall, Shulman and Banke, JJ., concur. McMurray and Smith, JJ., dissent.
SMITH, Judge, dissenting.
I concur fully with the opinion of the majority of this court down to the point where it dissects the judgment, reversing part and affirming part. The majority has ignored two important points: (1) The rules on fatal variances; and (2) the practical effect, both at trial and on appeal, of inaugurating the practice of severing one judgment of conviction on a one-count indictment. I will deal with these points separately.
I. Fatal Variances
The judgment of conviction should be reversed because there was a fatal variance between the allegations and the proof. The people of this state are free to possess screwdrivers in their homes, in their vehicles, and on their persons almost anywhere they may choose to go, without restraint by the state. Merely possessing such an innocuous instrument does not become a crime until there is a concurrent intent to commit a crime using the tool. Intent is the paramount element of the crime Foster was charged with. The indictment, in specifying the nature of the intent, charged him with "possession of said tool with intent to make use of same in commission of said crimes." The antecedent reference to "said crimes" was "burglary and theft." The essence of this case is that Foster was charged with possessing a screwdriver which he intended to use in committing burglary and theft, and that is exactly what the state was required to prove. The absence of such proof amounted to a variance; the nature *807 of the variance qualifies it as "fatal."
It is clear there was a variance: "[N]o averment in an indictment can be treated as surplusage which is descriptive of either the offense or the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance." Henderson v. State, 113 Ga. 1148, 1149 (39 SE 446).
Whether the variance is "fatal" is governed by the more recent decisions of the Supreme Court in DePalma v. State, 225 Ga. 465 (169 SE2d 801) and Dobbs v. State, 235 Ga. 800 (221 SE2d 576). Those decisions incorporate the test of Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314): "The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense." Berger asserts that the true test is "whether there has been such a variance as to `affect the substantial rights' of the accused." Id. The cases cited in Berger involved trivial or technical variances between the proof and the allegations. E.g. Bennett v. United States, 227 U. S. 333 (33 SC 288, 57 LE 531); and Washington & G. R. Co. v. Hickey, 166 U. S. 521, 531 (17 SC 661, 41 LE 1101), where it was said that "no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial."
Recent Georgia cases have borne out the interpretation that merely technical variances will not be fatal. See Ingram v. State, 137 Ga. App. 412 (224 SE2d 527); and Smith v. State, 142 Ga. App. 1 (234 SE2d 816). These cases were consistent with the spirit of the Berger case because technical variances do not affect a defendant's substantial rights, one of which is to know exactly what he is charged with so that he may defend against it.
This case is vastly different, however. The variance was not technical; it was not trivial; it went to the very *808 heart of the indictment. It concerned Foster's intent in possession of the screwdriver, and that intent is the gravamen of the offense of possession of tools for the commission of a crime. Intent is important because few tools are per se intended for illegal purposes (Cf. Harp v. State, 136 Ga. App. 897 (222 SE2d 623)); intent becomes doubly important when the potential uses of a particular tool are overwhelmingly legitimate. But the majority has chosen to ignore this variance related to Foster's intent, and has implicity applied what might be called a "scissors test": If the allegations making up a count of an indictment can be cut apart some rejected and some retained and pieced back together to make out a crime for which all the allegations have been proved, then the variance is not fatal. The logical, and not too remote, extension of this principle is that the state may overload a count of an indictment with allegations, prove what it can, and rest assured that a conviction will stand if the proof makes out any of the bare essentials of the offense alleged in the count. Such casual control of the indictment process makes it somewhat difficult, if not impossible, to insure that a defendant will be "definitely informed as to the charges against him" and will not be misled by them. Overbroad material allegations, unless they must be proved, are both uninformative and misleading.
The variance between the allegations and the proof in this case was substantial. The result of the majority opinion is that at the outset of this case Foster was necessarily misinformed as to the charge against him. The indictment told him he was being charged with possession of a screwdriver intended for use in burglary and theft. But this court is telling him now, in effect, no, you were really being charged with possession of a screwdriver intended for use in only theft, for that is all the state was able to prove. Was he definitely informed? Certainly not. Was he misled? Certainly so. Hence the variance becomes fatal under the test of DePalma and Dobbs, and the conviction should be reversed.
II. The Practical Effect
Had the majority held merely that there was no fatal variance and the conviction was affirmed fully, I would dissent for the reasons stated above. But I dissent for the *809 additional reason that the majority has taken an unprecedented and dangerous step by severing the unseverable. What authority is there for concluding that there were two distinct judgments of conviction based on one count in an indictment? This conclusion was reached by the majority as it reversed one "judgment" and affirmed the other. The practical ramifications of this holding are frightening and are wholly incongruous with the notion that the purpose of indictments is to inform defendants with certainty as to what they are charged with. For example: Could a defendant, such as Foster, be sentenced twice on one count of an indictment, if that count names two specific intents for one crime? Likewise, should a trial judge charge the jury that if they find proof of more than one specific intent, then they may return more than one verdict of guilt. And on appellate review of such cases, how far will this court go to isolate nonerroneous fragments of a judgment in order to affirm that judgment? The answers to these and similar questions are not immediately apparent, but the fact that the majority opinion has raised such questions and such possibilities is enough to cast serious doubt upon the legal foundations for such a judgment.
Conclusion
It is quite obvious that the state has been entrapped here due to our recent decision in Massey v. State, 141 Ga. App. 557 (234 SE2d 144), wherein this court held that one cannot be guilty of burglary of a vehicle unless such vehicle is designed for use as a dwelling. At the time of the indictment Massey was not the law of Georgia. However, entry of a vehicle with intent to commit a theft or felony is punishable under Code § 26-1813.1 (Ga. L. 1976, pp. 186, 187). Consequently, an attempt to enter a vehicle for that purpose is likewise a crime. Hence, the defendant here is allowed to reap the benefit resulting from this court's decision. As a court for correction of errors of law only, we must reverse, and not merely attempt to reverse in part where the defendant, by the above change in the law, is entitled to a benefit. I therefore dissent.
I am authorized to state that Judge McMurray joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1250163/ | 493 F.3d 292 (2007)
UNITED STATES
v.
James SHEDRICK, Appellant.
No. 04-2329.
United States Court of Appeals, Third Circuit.
Argued June 1, 2006.
Opinion Filed February 28, 2007.
Rehearing Granted and Vacated April 26, 2007.
Opinion Filed: July 19, 2007.
*293 Peter A. Levin, Esquire (Argued), Philadelphia, PA, for Appellant.
Patrick L. Meehan, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Chief of Appeals, Thomas P. Hogan, Jr. (Argued), Assistant United States Attorney, Office of United States Attorney, Philadelphia, PA, for Appellee.
Before: AMBRO, FUENTES, and GREENBERG, Circuit Judges.
Panel Rehearing Granted and Vacated April 26, 2007.
*294 OPINION OF THE COURT
AMBRO, Circuit Judge.
James Shedrick appeals from the District Court's denial of his 28 U.S.C. § 2255 petition for habeas corpus alleging ineffective assistance of counsel on two grounds. The Government first contests our jurisdiction, however, because of an appellate and collateral-review waiver contained in Shedrick's signed plea agreement. We conclude that we have jurisdiction over this appeal relating to ineffective-assistance-of-counsel claims; to hold otherwise could work a miscarriage of justice. We next affirm the District Court's denial of Shedrick's claim that his counsel was ineffective for failing to advise him about sentencing matters, but conclude, contrary to the District Court, that ineffectiveness of counsel prevented Shedrick from timely appealing. Therefore, we vacate his sentence and remand this case with directions for the District Court to re-enter it. Shedrick will then be able to file a timely direct appeal, which we will consider in the normal course.
I. Factual and Procedural Background
In the early morning of July 11, 2002, Philadelphia Police Officers Keya Mason, Raymond Rutter, and Joy Gallen-Ruiz, along with Sergeant Beverly Pembrook, were on patrol in Philadelphia's 12th District. Officer Mason responded to a 911 emergency call reporting a man with a gun located at 64th Street and Greenway Avenue. Upon arriving at that address, Officer Mason heard gun shots but did not see anyone in the area.
Sergeant Pembrook also responded immediately to the 911 call and, like Officer Mason, did not find anyone at the scene. After a short time, however, Pembrook observed a manlater identified as Shedrickstanding in the middle of the intersection holding a large silver revolver in his right hand. Pembrook made a priority radio call for back-up, stating that the suspect was armed and not in custody.
By that time, Mason had joined Pembrook. Officers Rutter and Gallen-Ruiz, who were riding together, also arrived at the scene. Pembrook and Mason stood in front of a police car and attempted to engage Shedrick while Rutter and Gallen-Ruiz began to approach him from covered positions behind parked cars. The officers repeatedly instructed Shedrick to drop the gun, but he refused. He pointed the gun at the sky and attempted to fire three shots. The gun failed to discharge.
The officers repeated their order for Shedrick to drop his gun. He again aimed the gun upward and pulled the trigger three more times. Yet again the gun failed to fire. Shedrick then opened up the cylinder of the revolver, and empty shell casings fell out of the weapon. When this occurred, the police gang-tackled and disarmed him. Officer Rutter called in a report indicating that Shedrick was in custody.
Immediately after Shedrick was detained, the officers were approached by Li Nguyen and Patricia Edwards. Nguyen and Edwards stated that they had been in a van on their way to work when Shedrick had appeared on the street and started firing shots at their vehicle. One of the bullets struck the front hood of the van. A second bullet penetrated the windshield and traveled directly between Nguyen, who was driving, and Edwards, who was in the front passenger seat. Nguyen and Edwards reported that they went to a police station one block away to report the shooting. When they returned to the spot where the shooting had occurred, they witnessed the police tackling Shedrick.
The police traced the gun in Shedrick's possession, a Smith & Wesson .357 caliber revolver, to an individual named Aki Brickhouse. Brickhouse was charged with, and *295 pled guilty to, transferring the weapon to a convicted felon (Shedrick). He also asserted that Shedrick had been selling crack cocaine on a regular basis from a location in West Philadelphia and had carried the Smith & Wesson while dealing drugs.
Shedrick was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He signed a written agreement with the Government, pleading guilty to that charge and specifically admitting that (1) he possessed the revolver, (2) he had a prior felony record,[1] and (3) the revolver had traveled in interstate commerce. However, Shedrick vigorously contested any involvement in the van shooting (as described by Nguyen and Edwards) and any drug dealing while armed with the revolver (as described by Brickhouse).
The plea agreement expressly stated that Shedrick's maximum potential sentence was ten years' imprisonment. It went on to note that the Government was permitted to "make whatever sentencing recommendation as to imprisonment . . . [it] deems appropriate." Indeed, both parties were "free to argue the applicability of any other provision of the Sentencing Guidelines, including offense conduct, offense characteristics, criminal history, adjustments and departures."
The agreement also included a provision waiving not only most appeals but also collateral attacks. It stated:
10. In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.
a. Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file a direct appeal of his sentence.
b. If the government does not appeal, then notwithstanding the waiver provision set forth in paragraph 10 above, the defendant may file a direct appeal but may raise only claims that:
i. the defendant's sentence exceeds the statutory maximum; or
ii. the sentencing judge erroneously departed upward from the otherwise applicable sentencing guideline range.
The District Court conducted a plea hearing in November 2002. During Shedrick's guilty plea colloquy, the Court confirmed and reinforced the terms of the written plea agreement. At the outset of the hearing, the Court stated:
And a plea agreement has been reached and it is recorded in writing and will be filed certainly at the end of this proceeding. But, most importantly, although the plea agreement states all of the agreements and understandings that exist between the defendant, defense counsel, and the Government, it does not recommend a set term of incarceration as binding upon this Court. Ultimately, the appropriate sentence would be left to the exercise of the Court's discretion based upon information presented by both sides and based upon a review of the Sentencing Guidelines.
*296 Later, the Court reiterated that the sentence would be left to its discretion and that there were no "agreements with anyone about what the right sentence should be." Shedrick confirmed this understanding. He also acknowledged that no other agreements existed between himself and the Government except those contained in the written plea agreement. The Court then made clear to Shedrick that the maximum sentence in his case was ten years' incarceration. Shedrick did express some confusion whether the facts alleged in the plea agreement included an admission that he aimed or shot at police officers, prompting the Court to clarify that he had only agreed to plead to the basic facts of possessing the gun as a convicted felon and that any other issues were left to the parties to argue at sentencing.
After Shedrick entered his plea, the Probation Office prepared a presentence report ("PSR"). It calculated Shedrick's base offense level at 20. It then recommended a four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) due to Shedrick's prior felony conviction for a controlled substance offense and a three-level deduction under U.S.S.G. § 3E1.1 for acceptance of responsibility. Those adjustments resulted in an offense level of 21 that, combined with a criminal history category of III, yielded a Sentencing Guidelines range of 46 to 57 months.
Two weeks prior to sentencing, the Government filed a memorandum with the District Court arguing that (1) Shedrick was subject to a four-level enhancement for possessing a firearm in connection with another felony offense (specifically, drug dealing), and (2) the Court should depart upward eight levels from the established Guidelines range because Shedrick had discharged the weapon during the commission of his offense (by shooting at a van occupied by two people). Shedrick objected.
The District Court held a sentencing hearing during which the potential enhancement for possession in connection with another felony offense, as well as the upward departure for shooting at the van, were contested. The Government called two witnesses to provide a factual basis to support the enhancement and departure: Brickhouse and Nguyen.
Brickhouse testified that Shedrick had been selling cocaine on a regular basis and that both Shedrick and his half-brother, Tarik Robinson, had carried the Smith & Wesson revolver while dealing drugs.
Nguyen testified that he and Patricia Edwards were driving to work in a red van at approximately 5:40 a.m. on the date of Shedrick's arrest, when a black man holding a silver revolver started shooting at them. The Government provided photographs to the District Court showing that bullets struck the left front hood of the van and the mid-windshield, passing between the two passengers. Nguyen recounted going to a police station to report the shooting, returning to where it had occurred, and witnessing the police tackling the man who had shot at the van.[2]
After Brickhouse's and Nguyen's testimony, Shedrick testified to his version of events. He admitted that he had the gun in his possession, but denied ever firing it. He also stated that he did not know Brickhouse and had never seen Nguyen prior to the sentencing hearing.
The Government and defense counsel then engaged in extended arguments *297 about the enhancement and departure. The defense contended that there was insufficient evidence to show that Shedrick either had been dealing drugs or had fired the shots that struck Nguyen's van. Thus, it was the defense's position that Shedrick should receive a sentence within the standard Guidelines range46 to 57 months.
The Government, on the other hand, maintained that because the evidence demonstrated that Shedrick had carried the gun while dealing drugs (as testified to by Brickhouse) and that Shedrick shot at the van (as testified to by Nguyen), both the four-level enhancement and eight-level upward departure should apply. It recommended to the Court a sentence of 100 months' incarceration.[3]
At the close of the hearing, the District Court found that Brickhouse and Nguyen were credible witnesses and thus applied the four-level enhancement and eight-level upward departure. Accordingly, the Court sentenced Shedrick to 96 months' incarceration to be followed by three years of supervised release.
The District Court appointed Shedrick new counsel for purposes of appeal on July 31, 2003 (over five months after sentencing), as Shedrick's trial counsel had not filed an appeal. On August 18, 2003 (approximately six months after sentencing), his new counsel filed a motion for enlargement of time to submit a notice of appeal nunc pro tunc. The District Court denied the motion on August 27, 2003, and our Court dismissed the appeal as untimely on November 25, 2003. Shedrick (through counsel) proceeded to file a 28 U.S.C. § 2255 habeas corpus petition in the District Court, which was denied. He petitioned pro se our Court for a certificate of appealability, which was granted for two issues: "whether counsel was ineffective for failing to advise [Shedrick] of a possible upward departure at sentencing; and whether counsel was ineffective for filing an untimely appeal."[4] Before we reach these issues, however, we address the Government's jurisdictional contention.
II. Jurisdiction
According to the Government, the appeal and collateral attack waiver contained in Shedrick's written plea agreement strips our jurisdiction. Not so. In United States v. Khattak, we joined the courts of appeals for ten other circuits and held that "[w]aivers of appeal, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice." 273 F.3d 557, 563 (3d Cir.2001). Though Khattak went on to say that, if a waiver is valid, "we have no jurisdiction to consider the merits of [an] appeal," id., we recently clarified that statement, see United States v. Gwinnett, 483 F.3d 200, 201-03 (3d Cir. 2007). "[N]otwithstanding the statement in Khattak, this [C]ourt retains jurisdiction over the appeal by a defendant who ha[s] signed an appellate waiver." Id. at 203. This does not undermine the practical bite of such waivers, however. For as stated in both Khattak and Gwinnett, "we will not exercise [our] jurisdiction to review the merits of [a defendant's] appeal if we conclude that she knowingly and voluntarily waived her right to appeal unless the result would work a miscarriage of justice." Id. at 203; Khattak, 273 F.3d at 562-63. In short, we have jurisdiction over this case, but will generally not exercise it absent compelling reasons.
At first glance, it does appear that Shedrick waived his right to appeal and collaterally attack his sentence in paragraph 10 *298 of the plea agreement. However, the agreement goes on to state that an appeal is preserved if any of three conditions occurs. They are, to repeat, (1) a Government appeal, (2) a sentence exceeding the statutory maximum, or (3) an erroneous upward departure from the otherwise applicable Sentencing Guidelines range.
It is undisputed that the first two predicates do not apply here; the Government did not appeal, and Shedrick's sentence of 96 months' imprisonment does not exceed the statutory maximum of ten years. Shedrick maintains, however, that the third condition applies. Specifically, he argues that the evidence was not sufficient to support the District Court's conclusion that he discharged his gun, which was the basis of the Court's eight-level upward departure.[5] He further argues that ineffective assistance of counsel prevented him from timely appealing this allegedly erroneous departure.
The Government, on the other hand, claims that Shedrick "is not arguing that the Court erroneously granted an upward departure, but merely is arguing that counsel was ineffective for allegedly not informing him that the potential for an upward departure existed." Gov't Br. at 28. We disagree. At its essence, Shedrick's argument is that, as a result of counsel's deficient performance, he (1) failed to understand the full effect of his guilty plea as it related to upward departures, and (2) failed timely to appeal the District Court's upward departure, which he was entitled to appeal under the express terms of the plea agreement waiver. Enforcing a collateral-attack waiver where constitutionally deficient lawyering prevented Shedrick from understanding his plea or from filing a direct appeal as permitted by his plea agreement would result in a miscarriage of justice.[6] In this context, we will exercise our jurisdiction to consider Shedrick's ineffective-assistance-of-counsel claims.
III. Merits
A. Ineffectiveness of Counsel for Failure to Advise
Shedrick first argues that he received ineffective assistance of counsel during his *299 plea process as a result of counsel's failure to advise him about a potential enhancement or upward departure at sentencing. According to Shedrick, a "fundamental consideration for [him] in determining whether . . . to accept the guilty plea was the length of sentence he could expect to receive."
Under the two-part test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Shedrick must demonstrate that his attorney's performance was deficient and that he was prejudiced by the deficiency. That is, he must prove that counsel's performance "fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. 2052, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.
Shedrick cannot satisfy these requirements. Indeed, we have long held that an erroneous sentencing prediction by counsel is not ineffective assistance of counsel where, as here, an adequate plea hearing was conducted. See, e.g., United States v. Jones, 336 F.3d 245, 254 (3d Cir.2003) (counsel not ineffective for allegedly promising defendant a sentence of "no more than 71 months" where defendant was advised in open-court colloquy of potential maximum sentence and there were no other promises regarding sentence); United States v. Mustafa, 238 F.3d 485, 492 (3d Cir.2001) ("[A]ny alleged misrepresentations that [defendant's] former counsel may have made regarding sentencing calculations were dispelled when [defendant] was informed in open court that there was no guarantee as to sentence, and that the court could sentence him to the maximum."); Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir.1972) (per curiam) (holding that "[a]n erroneous prediction of a sentence by defendant's counsel does not render a guilty plea involuntary" where record demonstrates that a proper plea colloquy took place during which defendant acknowledged that he was aware of his maximum potential sentence). As stated in Mustafa,
[w]e recognize that the maximum sentence authorized by law is often so extraordinarily long that few defendants other than "career criminals" plead guilty with the expectation that the maximum sentence applies to them. However, all that the law requires is that the defendant be informed of his/her exposure in pleading guilty. The law does not require that a defendant be given a reasonably accurate "best guess" as to what his/her actual sentence will be; nor could it, given the vagaries and variables of each defendant's circumstances and offending behavior.
238 F.3d at 492 n. 5.
This case falls well within well-established precedent: defense counsel's conjectures to his client about sentencing are irrelevant where the written plea agreement and in-court guilty plea colloquy clearly establish the defendant's maximum potential exposure and the sentencing court's discretion. Shedrick's written, signed agreement stated that (1) he faced a maximum potential sentence of ten years' incarceration, (2) the parties were free to argue any other sentencing issues (explicitly including departures), (3) the District Court retained ultimate discretion over the sentence, and (4) there were no other agreements or promises regarding Shedrick's potential sentence.
The District Court repeated these facts in open court, starting the guilty plea colloquy by confirming with Shedrick that
most importantly, although the plea agreement states all of the agreements and understandings that exist [among] the defendant, defense counsel, and the Government, it does not recommend a *300 set term of incarceration as binding upon this Court. Ultimately, the appropriate sentence would be left to the exercise of the Court's discretion based upon information presented by both sides and based upon a review of the Sentencing Guidelines.
It then confirmed that Shedrick (1) had read, signed, and fully understood the plea agreement, (2) understood that there were no other promises regarding his potential sentence, and (3) had admitted the facts of the crime. The Court further advised Shedrick that the maximum potential sentence was ten years' incarceration and repeated that it retained full discretion over the ultimate sentence.
Here, any erroneous sentencing information allegedly provided by defense counsel was corrected by the written plea agreement and the detailed in-court plea colloquy, both of which accurately stated Shedrick's potential sentence. Given this record, it is inconceivable that Shedrick did not know he potentially faced a maximum ten-year prison term. In fact, his allegations before our panel are flatly inconsistent with his written, signed plea agreement, as well as his sworn, in-court answers during his plea colloquy. Accordingly, the District Court correctly denied Shedrick's § 2255 motion as to his claim that counsel was ineffective for failing to advise him of the potential for an enhancement or upward departure.[7]
B. Ineffectiveness of Counsel for Failure to Appeal Timely
Shedrick's second contention is that his counsel was ineffective for failing to file a timely appeal in this case. In resolving this claim, we are guided by the Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). There, the Court addressed whether counsel may be found deficient for failing to file a notice of appeal absent specific instruction from the defendant not to do so. Because the question concerned whether counsel's representation was constitutionally defective, the Court held that the two-part Strickland test governed its inquiry. Id. at 476-77, 120 S.Ct. 1029. Applying that standard to the particular facts before it, the Court held that "counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) *301 that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480, 120 S.Ct. 1029. The Court further explained that it "employ[ed] the term `consult' to convey a specific meaningadvising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Id. at 478, 120 S.Ct. 1029. Additionally, the Court instructed that courts undertaking this inquiry, as with all ineffective-assistance claims, "take into account all the information counsel knew or should have known." Id. at 480, 120 S.Ct. 1029 (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052).
With respect to Strickland's prejudice prong, the Court held that the harmless-error inquiry applied and that relief could not be granted unless the defendant "demonstrate[s] that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484, 120 S.Ct. 1029. The Court did not identify any determinative factors in this regard, but did stress that "evidence that there were non-frivolous grounds for appeal or that the defendant at issue promptly expressed a desire to appeal will often be highly relevant." Id. at 485, 120 S.Ct. 1029.
A review of the record here reveals that Shedrick "reasonably demonstrated to [his] counsel that he was interested in appealing" by vehemently contesting the factual issues that led to his upward departure throughout the District Court proceedings. See Gov't Br. at 18 (acknowledging that Shedrick "hotly contested" the factual issues leading to his upward departure both prior to and during his sentencing proceedings); see also Appellant's App. at 78-79 (demonstrating that Shedrick, during his plea colloquy and prior to pleading guilty, specifically ensured that he was not conceding any involvement in the van shooting incident or any attempt to fire the weapon at police). In this context, Shedrick's counsel had "a constitutionally-imposed duty to consult with" him concerning a possible appeal. Flores-Ortega, 528 U.S. at 480, 120 S.Ct. 1029; see id. at 481, 120 S.Ct. 1029 ("We expect that courts evaluating the reasonableness of counsel's performance using the inquiry we have described will find, in the vast majority of cases, that counsel had a duty to consult with the defendant about an appeal.").
The Government argues that Shedrick "makes no allegation that he ever directed counsel to [file an appeal]." Gov't Br. at 58. Indeed, Shedrick's habeas counsel wrote in his brief to our Court that "[t]he record does not indicate that [trial] counsel had any discussion with [Shedrick] regarding an appeal. It is also unclear whether [Shedrick] specifically asked [his counsel] to file an appeal." Appellant's Br. at 17. We are uncertain why such comments were made in light of Shedrick's explicit statement in a letter to the District Judge, dated February 26, 2003 (before the appeal deadline had passed), that he had asked his counsel to file an appeal on his behalf. Upon receipt of this letter, the Judge's chambers specifically informed counsel for Shedrick of his desire to appeal by leaving a message on counsel's phone. Nevertheless, Shedrick's counsel took no action to effect an appeal.
In sum, the record clearly reflects Shedrick's counsel's deficient representation. There is no indication in the record that he consulted with Shedrick post-sentencing as required by Flores-Ortega. In fact, Shedrick expressly wrote to the District Judge that his counsel failed to consult with him during the appeal period. Moreover, even *302 if counsel did so, there is little question he was ineffective in failing to file a timely appeal, as Shedrick had stated that he wished to appeal while that option was available. Under these circumstances, it is not necessary for us to remand this case to the District Court for a factual finding that counsel either did or did not consult with Shedrick; counsel was deficient either way.[8]
C. Remedy
Because Shedrick was prevented from filing a timely appeal challenging his upward departure, we must figure out what to do about it. The answer is not obvious, for the law governing federal sentencing has changed significantly since the time Shedrick was sentenced in 2003. We will not recount the details of those changes here, as they have been amply described and extensively examined in other decisions by our Court. See, e.g., United States v. Grier, 475 F.3d 556 (3d Cir.2007) (en banc); United States v. Gunter, 462 F.3d 237 (3d Cir.2006); United States v. Cooper, 437 F.3d 324 (3d Cir.2006); United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc). Suffice it to say that the Guidelines, which were mandatory at the time of Shedrick's sentencing, are now only "effectively advisory." Booker, 543 U.S. at 245, 125 S.Ct. 738. This change in the law has required us to deal with several problems for cases in which sentences were imposed before Booker but were on appeal when that decision came down.
Generally, we have adopted a broad remand policy for cases on direct appeal from sentences imposed under the mandatory Guidelines. See Davis, 407 F.3d at 164-66. But that policy is not necessarily applicable when it comes to cases involving appellate waivers. Most relevant here, we held in United States v. Lockett, 406 F.3d 207, 213-14 (3d Cir.2005), that Booker neither entitles a defendant to withdraw his guilty plea nor to an unfettered right to resentencing under an advisory scheme if he has waived his right to appellate review as part of his plea bargain. "[W]here subsequent developments in the law expand a right that a defendant has waived in a plea agreement, that change does not make the plea involuntary or unknowing or otherwise undo its binding nature." Id. at 213.[9]
Lockett's relevance to this case is somewhat unclear, though. There, the defendant had "ask[ed] us to invalidate his sentence because he did not know at the time he pleaded guilty that the Supreme Court would later hold that the Sentencing Guidelines are advisory." Id. Here, in contrast, the record demonstrates that Shedrick's concern at the time of his sentence was the propriety of his eight-level upward departure, as explained in the previous section. That argument is specifically permissible under the terms of Shedrick's plea agreement and is not affected by Lockett.
But despite its presence in all of the ineffective-assistance-of-counsel discussion, Shedrick oddly does not make an argument with respect to whether his upward departure was proper. Instead, the only argument raised in his brief before us with regard to the merits of the departure is that the District Court (rather than a jury) *303 found facts using a preponderance-of-the-evidence (rather than beyond-a-reasonable-doubt) standard, thus causing him to be sentenced higher than the statutory maximum as construed in Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ("[T]he relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."). This Blakely-based contention is a Sixth Amendment argument that was waived as part of Shedrick's plea agreement and, under Lockett, is a nonstarter.
The above discussion aside, we consider it the better part of prudence not to address the substance of Shedrick's underlying sentence. Instead we will follow the usual course in cases of this nature: vacate and remand for re-entry of the initial sentence so that there can be a timely appeal. See United States v. Hadden, 475 F.3d 652, 661 n. 8 (4th Cir.2007) (citing United States v. Torres-Otero, 232 F.3d 24, 30-31 (1st Cir.2000); United States v. Prado, 204 F.3d 843, 845 (8th Cir.2000); In re Goddard, 170 F.3d 435, 436 (4th Cir.1999); United States v. Peak, 992 F.2d 39, 42 (4th Cir.1993)); see also Spence v. United States, 68 Fed.Appx. 669, 676 (6th Cir. 2003); Garcia v. United States, 278 F.3d 134, 138 (2d Cir.2002). This will put Shedrick in the same position he would have been in if he had had effective assistance of counsel. Moreover, it will give him the opportunity properly to raise the issue that he had previously expressed a desire for this Court to review and which he explicitly preserved in his plea agreement and colloquy: the propriety of his upward departure.
IV. Conclusion
For the reasons explained above, we have jurisdiction over this appeal involving ineffective-assistance-of-counsel claims. We proceed to affirm the District Court's denial of Shedrick's § 2255 petition concerning the claim that his counsel was ineffective for failing to advise him as to the potential for an enhancement or upward departure. However, Shedrick has demonstrated that his counsel was ineffective under Flores-Ortega for failing to assist him in his right to appeal. We thus reverse the Court's denial of Shedrick's § 2255 petition on this claim. In so doing, we vacate Shedrick's sentence and remand to the District Court with instructions to re-enter it, thus giving him the opportunity timely to appeal on the narrow ground allowed by his plea agreement.
NOTES
[1] Shedrick pled guilty in October 2000 in the Philadelphia Court of Common Pleas to possession with intent to deliver a controlled substance (cocaine) and unlawful possession of an unlicensed firearm.
[2] Because Shedrick was wearing a black shirt when arrested, it is notable that Nguyen testified that the shooter had been wearing a white shirt. When confronted by that inconsistency, Nguyen admitted that he had focused on the gun and could have made a mistake about the color of the shooter's shirt.
[3] Application of both the four-level enhancement and eight-level departure yielded a Guidelines range of 87 to 108 months.
[4] We also appointed Shedrick new counsel to pursue this appeal.
[5] Shedrick's brief mistakenly lumps together his enhancement and his upward departure. An "enhancement" is an adjustment to the base offense level as specifically provided by the Guidelines, whereas an "upward departure" is a discretionary adjustment to the Guidelines range once calculated. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the difference is now represented in the distinction between steps one and two as set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). While Shedrick has a right to appeal the District Court's upward departure under his plea waiver, the literal words of that waiver make clear that he has no concomitant right to appeal the enhancement.
[6] Our decision in Khattak left the miscarriage-of-justice determination open-ended, depending on various factors identified in United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001), e.g., how clear and grave an error existed, the effect of that error on the parties, and the extent to which the defendant acquiesced in the error. Khattak, 273 F.3d at 563. We noted, however, that the Seventh Circuit Court of Appeals has specifically held that ineffective assistance of counsel qualifies as a miscarriage of justice sufficient to overcome a waiver-of-appeal provision. Id. at 562 (citing United States v. Joiner, 183 F.3d 635, 645 (7th Cir.1999)); see also United States v. Poindexter, 492 F.3d 263, 266-73 (4th Cir. 2007); United States v. Tapp, 491 F.3d 263 (5th Cir.2007); Campusano v. United States, 442 F.3d 770, 773-77(2d Cir.2006); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.2005); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.2005); United States v. Garrett, 402 F.3d 1262, 1264-67 (10th Cir.2005); Teeter, 257 F.3d at 25 n. 9; United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir.2001); United States v. Jemison, 237 F.3d 911, 916 n. 8 (7th Cir.2001).
[7] With regard to his failure-to-advise argument, Shedrick relies heavily on one case Meyers v. Gillis, 142 F.3d 664 (3d Cir.1998) to advance his claim that bad sentencing information provided by a defense lawyer equals ineffective assistance of counsel. Meyers involved a habeas proceeding from a state court guilty plea. The defendant had pled guilty to second degree murder, which carried a mandatory life sentence with no chance of parole. Nonetheless, the defendant was misinformed by counsel that he would be eligible for parole in seven years. At his guilty plea, the defendant was repeatedly informed that he would become eligible for parole. Incredibly, that advice was never corrected by the prosecutor or the state trial court. We held that Meyer's counsel was ineffective and reversed his life sentence.
Meyers is readily distinguishable from the case before us. The former involved review of a state court proceeding lacking a detailed guilty plea agreement and the equivalent of a Rule 11 guilty plea colloquy. More importantly, the trial court in Meyers failed to correct the erroneous sentencing information provided on the record by defense counsel. In sharp contrast, the District Court here corrected any alleged misperception by Shedrick about his potential sentence by accurately informing him that his maximum prison sentence was ten years and that the Court had the discretion to sentence him up to that maximum. See Scarbrough v. Johnson, 300 F.3d 302, 303-04, 306 (3d Cir.2002) (distinguishing Meyers and finding no error where defense counsel misinformed defendant that he was eligible for parole but the court repeatedly and correctly informed defendant that his penalty was an "automatic life sentence" with no chance of parole).
[8] Cf. Poindexter, 492 F.3d at 273 (remanding for evidentiary hearing on whether the defendant instructed his attorney to file a notice of appeal); Tapp, 491 F.3d 263 (same); Campusano, 442 F.3d at 777 (same); Gomez-Diaz, 433 F.3d at 794 (same); Sandoval-Lopez, 409 F.3d at 1198-99 (same); Garrett, 402 F.3d at 1267 (same).
[9] This is all the more true in habeas proceedings raising Booker-related claims, as we have held that Booker's effect is not retroactive on habeas review. See Lloyd v. United States, 407 F.3d 608 (3d Cir.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1250245/ | 493 F.3d 977 (2007)
UNITED STATES of America, Appellee,
v.
Jay Todd HESSMAN, Appellant.
No. 06-2360.
United States Court of Appeals, Eighth Circuit.
Submitted: February 14, 2007.
Filed: July 20, 2007.
Rehearing and Rehearing Denied August 30, 2007.
*978 Counsel who presented argument on behalf of the appellant was Joseph J. Hrvol, Council Bluffs, Iowa.
Counsel who presented argument on behalf of the appellee was AUSA John H. Lammers, Sioux City, Iowa. Also appearing *979 on the brief is AUSA Janet L. Petersen, Sioux City, Iowa.
Before RILEY, MELLOY and SHEPHERD, Circuit Judges.
Rehearing and Rehearing En Banc Denied August 30, 2007.
SHEPHERD, Circuit Judge.
Jay Todd Hessman was convicted at a jury trial of conspiracy to manufacture and distribute five grams or more of methamphetamine after having been previously convicted of a felony drug offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. He was sentenced to 360 months of imprisonment. On appeal, Hessman asserts that the district court[1] erred in: denying his motion to dismiss based upon the Speedy Trial Act, 18 U.S.C. § 3161; its handling of government hearsay testimony; admitting evidence of prior convictions; refusing a jury instruction offered by Hessman; failing to grant a downward departure at sentencing; and applying an enhancement for prior drug convictions. We affirm.
I.
The indictment in this case was filed on October 24, 2002, Hessman was arraigned on November 15, 2002, and trial was scheduled for January 6, 2003. After several motions to continue were granted, trial was scheduled for March 24, 2003, however on March 3, 2003, Hessman filed a motion to suppress evidence seized from his residence pursuant to a search warrant, and the trial was again continued. The district court granted the motion to suppress, and on May 9, 2003, the district court granted the motion of the United States to continue the trial to allow it to pursue an interlocutory appeal. On June 1, 2004, this court reversed the district court and found that the evidence was not subject to suppression. See United States v. Hessman, 369 F.3d 1016 (8th Cir.2004). The certified judgment from this court was received and docketed by the district court on August 16, 2004. On September 8, 2004, Hessman moved to continue the trial to allow him to petition the Supreme Court of the United States for writ of certiorari with respect to this court's decision on the suppression issue. The district court granted the motion for continuance and excluded the period of September 8, 2004, to the date of trial for Speedy Trial purposes. The order also instructed the parties to "notify the court when a ruling was issued on Hessman's petition for certiorari."
On January 10, 2005, the Supreme Court denied the petition for writ of certiorari and so notified the clerk of this court. Hessman v. United States, 543 U.S. 1072, 125 S.Ct. 917, 160 L.Ed.2d 809 (2005); see Sup.Ct. R. 16(3) ("Whenever the Court denies a petition for a writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed."). On January 20, 2005, the clerk of this court mailed to the district court a memorandum and a copy of the Supreme Court order. However, the district court never received this communication nor did counsel for the United States or Hessman advise the district court of the Supreme Court's action.
On March 11, 2005, the counsel for Hessman filed a motion in the district court seeking leave to withdraw. The filing of this motion apparently prompted the district court to investigate the status of Hessman's certiorari petition, and the court discovered that the petition had been denied two months earlier. On March 14, 2005, the district court entered an order *980 granting the motion of Hessman's attorney for leave to withdraw, setting trial to begin on May 16, 2005, and finding that the time from September 8, 2004, until May 16, 2005 was excluded for Speedy Trial purposes. The trial was subsequently continued and began on November 10, 2005. It is undisputed that the time period from March 14, 2005, to the date of trial, is excluded for Speedy Trial purposes.
On May 13, 2005, Hessman filed a motion alleging that the Speedy Trial Act had been violated and that the excludable time period related to his Supreme Court petition ended on January 11, 2005. By order entered on June 16, 2005, the district court denied the motion to dismiss finding that time period from January 11, 2005, to March 11, 2005, the date the court learned of the action of the Supreme Court, is excludable as "delay resulting from any interlocutory appeal." See 18 U.S.C. § 3161(h)(1)(E). The district court further found that the parties had a court-ordered duty to advise the district court of any action by the Supreme Court and that both parties had failed to do so. On November 7, 2005, Hessman proceeded to trial and was convicted on November 10, 2005.
II.
With respect to the appeal of Speedy Trial issues, we review the district court's findings of fact for clear error and its legal conclusions de novo. United States v. Titlbach, 339 F.3d 692, 698 (8th Cir.2003) (quotation marks and citations omitted). Under the Speedy Trial Act, a defendant's trial must commence within 70 days of the latter of the filing of the indictment or the defendant's arraignment. 18 U.S.C. § 3161(c)(1); United States v. McKay, 431 F.3d 1085, 1091 (8th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2345, 164 L.Ed.2d 859 and ___ U.S. ___, 127 S.Ct. 46, 166 L.Ed.2d 48 (2006). Delays occasioned by continuances granted on motion of the defendant are excluded from the 70 day period. 18 U.S.C. § 3161(h)(8). Where the rights of a defendant under the Speedy Trial Act are violated, the indictment must be dismissed. 18 U.S.C. § 3162(a)(2). However, "the burden is on the defendant to show his right to a speedy trial has been violated." United States v. Cordova, 157 F.3d 587, 599 (8th Cir.1998).
In this case, 24 days of the 70 day Speedy Trial period elapsed from the date of Hessman's arraignment to December 9, 2002, the date of the filing of Hessman's first motion to continue trial. Another 23 days elapsed from August 16, 2004, the date the district court received the certified judgment from this court with respect to the interlocutory appeal until September 8, 2004, the date on which Hessman filed a motion for continuance in order to allow him to seek certiorari on the suppression issue. Therefore, a total of 47 days elapsed, with 23 days remaining of the 70 day Speedy Trial time limit. The parties agree that Speedy Trial tolling resumed on September 8, 2004.
Hessman asserts that Speedy Trial Act tolling ended on January 10, 2005 when the Supreme Court denied certiorari. If so, the Speedy Trial time period expired on February 2, 2005. The United States argues that tolling continued until March 11, 2005, thus, no Speedy Trial Act violation occurred.
Although the district court found excludable the time period which began on September 8, 2004, as delay occasioned by an interlocutory appeal, see 18 U.S.C. § 3161(h)(1)(E), and the parties have characterized the delay in this same fashion, the time period in question is more accurately described as "[a]ny period of delay resulting from a continuance granted by any judge . . . at the request of the defendant or his counsel." 18 U.S.C. § 3161(h)(8)(A); United States v. Leone, *981 823 F.2d 246, 248 n. 2 (8th Cir.1987) (Speedy Trial Act excludes periods of delay resulting from a continuance granted at the request of the defendant).[2]
On August 4, 2004, we denied Hessman's petition for rehearing with respect to our judgment reversing the district court's grant of Hessman's motion to suppress. While Hessman could have moved for a stay of the mandate pending his filing of a petition for writ of certiorari in the Supreme Court, he elected not to do so. See Fed. R.App. P. 41(d)(2) (a party may move to stay the mandate pending the filing of petition for certiorari in the Supreme Court; absent good cause, the stay may not exceed 90 days unless the party who obtained the stay files a petition for the writ and so notifies the clerk of the court of appeals; the mandate must issue immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed); Sup.Ct. R. 13 (a petition for writ of certiorari seeking review of a judgment of a United States court of appeals is timely when filed within 90 days from the date of denial of rehearing). Thus, upon the receipt of our certified judgment on August 16, 2004, the district court was again vested with jurisdiction and could proceed. United States v. Arrellano-Garcia, 471 F.3d 897, 900 (8th Cir. 2006) (the district court is without jurisdiction to act until the mandate is received from the court of appeals); see also United States v. Scalf, 760 F.2d 1057, 1059 (10th Cir.1985) (an application to seek certiorari has no effect on the finality of an appellate decision unless the mandate of the court is stayed or withdrawn).
Having failed to request a stay of the mandate, Hessman filed for an open-ended continuance from the district court so his prosecution would be stayed while he sought certiorari. This motion was granted and both parties were ordered to notify the district court when a ruling was made on the petition. There is no rule requiring the Clerk of the Supreme Court to officially notify the district court of the action of the Supreme Court with respect to a petition for certiorari to review a decision of the court of appeals. However, Supreme Court Rule 16(3) does require the Supreme Court Clerk to notify counsel "forthwith" of the Supreme Court's grant or denial of certiorari, therefore the district court was justified in ordering Hessman and the United States to notify the court when a ruling was issued on the petition.[3] This order was entirely appropriate under the circumstances and was not objected to by Hessman. While "[a] defendant has no duty to bring himself to trial," Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find that the requirements of the order of continuance which was granted at Hessman's request were appropriate. See United States v. Twitty, 107 F.3d 1482, 1489 (11th Cir.1997) (in speedy trial context, finding significant that defendant did not object to terms of order of continuance).
*982 The record does not explain why the district court did not receive the courtesy notice from the clerk of our court advising of the Supreme Court's action. Whatever the explanation, that the communication was not received is of no import in view of the fact that neither the Supreme Court nor this court was required to advise the district court of the disposition of the petition for writ of certiorari. Since neither the United States nor Hessman notified the district court of the disposition of the petition as ordered by the district court, we agree that the excludable delay occasioned by the continuance granted at Hessman's request did not end until March 11, 2005, when the district court learned of the denial of the petition "by mere happenstance." Since another excludable period began on March 14, 2005, and continued until trial, no Speedy Trial Act violation occurred.
III.
Hessman also asserts trial error. We review evidentiary rulings for an abuse of discretion. United States v. Durham, 470 F.3d 727, 731 (8th Cir.2006). At trial, the United States presented the testimony of two witnesses, Jamie Carlson and Travis Kicklighter, relating out of court statements by others, to which Hessman objected as inadmissible hearsay. Specifically, Carlson testified that Kicklighter told him that he cooked methamphetamine with Hessman and that Kicklighter and Hessman used methamphetamine together, and Kicklighter testified that Hessman told him that Hessman had stabbed himself in the leg in a Fort Dodge, Iowa, hotel room. In countering Hessman's hearsay objections, the United States argued that these out-of-court statements were not hearsay but were statements against Hessman made by co-conspirators "during the course and in the furtherance of the conspiracy." See Fed.R.Evid. 801(d)(2)(E).
The district court conditionally allowed the statements, following the procedure outlined in United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978) (the district court may conditionally allow testimony as to the statement of an alleged co-conspirator subject to later proof, by a preponderance of independent evidence, that the declarant was a co-conspirator). After the testimony was conditionally presented, the district court found both statements to be inadmissible as not in furtherance of the conspiracy. The district court overruled Hessman's motion for mistrial and, continuing to follow the Bell procedure, instructed the jury to disregard the testimony in question. See id. (where the court determines that the government has failed to carry its burden of proving by a preponderance of the evidence that the statement was made by a coconspirator in furtherance of the conspiracy, the court will give a cautionary instruction to the jury to disregard the statement where such an instruction will suffice to cure any prejudice).
On appeal, Hessman does not argue that the procedure approved in Bell was not followed by the district court nor does he identify any other alleged error in the district court's handling of this testimony. Instead, he asks that the en banc court overrule Bell. However, as Hessman implicitly concedes, this panel remains bound by Bell. See United States v. Lippman, 369 F.3d 1039, 1044 (8th Cir.2004) (a panel of the circuit court may not overrule circuit precedent); United States v. Wilson, 315 F.3d 972, 973-74 (8th Cir.2003) (only the court en banc can overrule circuit precedent). To the extent Hessman asks that this case be heard en banc and that the en banc court overrule Bell, we find that Hessman has failed to request hearing en banc in the manner and in the time required by the Federal Rules of Appellate Procedure and the rules of this court. See Fed. R.App. P. 35(b), (c) (a party may petition for a hearing en banc no later than *983 the date when the appellee's brief is due); 8th Cir. R. 35A (a party seeking an en banc proceeding must file 21 copies of a petition for hearing en banc).
Hessman also asserts that the district court committed error in admitting evidence of three prior drug-related convictions. Prior to trial, via motion in limine, Hessman asked that the United States be prohibited from referring to, or offering into evidence, any prior conviction of the defendant. At trial, over Hessman's objection, the district court admitted evidence as to three prior state court drug convictions. Specifically, the district court ruled that evidence as to Hessman's convictions on March 30, 2000, for possession of methamphetamine, and on March 24, 1997, for possession of marijuana with the intent to deliver and manufacturing a controlled substance, were admissible pursuant to Federal Rule of Evidence 404(b).
Rule 404(b) provides that evidence of a prior bad act such as a conviction may not be offered solely to prove the defendant's criminal propensity but is admissible if it is relevant to a material issue, such as intent, and if it is established by a preponderance of the evidence, more probative than prejudicial, and similar in kind and close in time to the charged offense. The requirement to balance probative value and prejudice is found in Rule 403 . . . [W]e construe Rule 404(b) as a rule of inclusion and have frequently upheld the admission of prior drug convictions in cases where the defendant denied committing the charged drug offense.
United States v. Cook, 454 F.3d 938, 941 (8th Cir.2006) (internal citations omitted).
Evidence of Hessman's March 2000 and two 1997 drug convictions was relevant to the issue of Hessman's knowledge and intent, both elements of the charged offense. United States v. Adams, 401 F.3d 886, 894 (8th Cir.) (prior convictions for possessing and distributing drugs are relevant under Rule 404(b) to show knowledge and intent to commit a charge of conspiracy to distribute drugs) cert. denied, 546 U.S. 966, 126 S.Ct. 492, 163 L.Ed.2d 373 (2005). The convictions are also similar in kind and close in time to the charged conspiracy to manufacture methamphetamine from March through May 2000, for which Hessman was tried. See id. (four-year interval found to be "well within the bounds of admission") (quoting United States v. Frazier, 280 F.3d 835, 847 (8th Cir.2002)). Further, the district court instructed the jury that the evidence of Hessman's prior convictions should be considered only with respect to the issues of knowledge and intent, thus minimizing the danger of unfair prejudice. United States v. Edelmann, 458 F.3d 791, 810 (8th Cir. 2006) (limiting instruction found to cure whatever unfair prejudice defendant may have suffered by admission of Rule 404(b) evidence); United States v. Lothridge, 332 F.3d 502, 504 (8th Cir.2003) (limiting instruction that evidence of prior convictions could only be used to decide whether defendant had requisite knowledge and intent diminished danger of unfair prejudice arising from admission of such evidence).
Hessman also asserts that the district court erred in refusing to give his proposed instruction on reasonable doubt. Hessman's proposed instruction, in addition to containing the language contained in the Eighth Circuit's Model Criminal Jury Instruction § 3.11 (2000), included the following language taken from Iowa criminal jury instructions:
But, if, after a full and fair consideration of all the evidence or lack of evidence produced by the State you are not firmly convinced of the defendant's guilt, then you have a reasonable doubt and you should find the defendant not guilty.
Iowa Crim. Jury Instructions, Instruction 110.10 (Iowa Bar Assoc.2004).
*984 The court refused to give Hessman's requested instruction and instead gave the model instruction. Because the instruction given by the district court has been specifically upheld by this court, we summarily reject Hessman's argument. United States v. Mallen, 843 F.2d 1096, 1101-02 (8th Cir.1988); United States v. Risken, 788 F.2d 1361, 1371 (8th Cir.1986) (instruction consistent with Eighth Circuit Model Criminal Jury Instruction § 3.11 upheld).
IV.
Hessman also asserts sentencing error. "The correct application of the guidelines is a question of law subject to de novo review, while a factual determination of the sentencing court is reviewed under a clearly erroneous standard." United States v. Tirado, 313 F.3d 437, 440 (8th Cir.2002) (citation omitted).
Hessman argues that the district court erred in declining to afford him downward departures based upon his exceptional family circumstances, acceptance of responsibility, and his rehabilitation since the date of the offense. "The discretionary denial of a motion for downward departure is unreviewable unless the [district] court failed to recognize its authority to depart." United States v. Vasquez, 433 F.3d 666, 670 (8th Cir.2006) cert. denied, ___ U.S. ___, 127 S.Ct. 3041, ___ L.Ed.2d ___ (2007) (quoting United States v. Andreano, 417 F.3d 967, 970 (8th Cir.2005) cert. denied, ___ U.S. ___, 126 S.Ct. 1118, 163 L.Ed.2d 925 (2006)). Hessman does not allege that the district court did not recognize its authority to depart, and our review of the record reveals that the court indeed recognized that it possessed such authority but declined to exercise it. Accordingly, the district court's refusal to depart downward is unreviewable.
Hessman also asserts that the district court erred in sentencing him based upon a drug quantity determined by the court by applying a preponderance of the evidence standard, rather than following the jury's finding as to drug quantity, which was based upon a reasonable doubt determination.
As part of its verdict, the jury responded to a written question posed by the court by finding that 5 grams or more but less than 50 grams of actual (pure) methamphetamine was involved in the conspiracy. At sentencing, the district court determined that the United States had proven by a preponderance of the evidence that the defendant was accountable for 9.8 grams of actual methamphetamine and 480.69 grams of methamphetamine mixture as reflected in the presentence report. This yielded a base offense level of 32. United States Sentencing Commission, Guidelines Manual, § 2D 1.1(a)(3)(c)(4) (Nov.1998).
In sentencing Hessman, the district court properly acknowledged that the government had the burden of proving drug quantity by a preponderance of the evidence. United States v. Marshall, 411 F.3d 891, 894 (8th Cir.2005) ("The government bears the burden of proving drug quantity by a preponderance of the evidence."); United States v. Mickelson, 378 F.3d 810, 821 (8th Cir.2004) (sentencing court is required to find drug quantity by a preponderance of the evidence). Further, "[t]he district court can impose a sentence based on a higher drug quantity determination than the jury's finding so long as the sentence does not exceed the statutory maximum of the convicted offense." United States v. Johnston, 353 F.3d 617, 625 (8th Cir.2003) (per curiam). Based upon the jury's finding that 5 to 50 grams of methamphetamine were involved in the conspiracy, coupled with Hessman's prior drug conviction, the statutory sentencing range was 10 years to life imprisonment. Because the 360 month sentence, imposed *985 by the district court, was within this statutory sentencing range, no error occurred. Id.; see also United States v. Titlbach, 300 F.3d 919, 922 (8th Cir.2002) (sentence of 88 months, less than the statutory maximum for the crime, did not violate defendant's constitutional rights.)
Hessman further contends that the district court erred by finding that he qualified as a career offender by virtue of the two 1997 drug convictions. Hessman argues that these convictions should be considered related and should not count separately under the provisions of USSG § 4A1.2(a)(2), which states that prior sentences imposed in unrelated cases are to be counted separately, but prior sentences imposed in related cases are to be treated as one sentence.
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.
USSG § 4A1.2, comment. (n. 3).
"In assessing whether the offenses were part of a single common scheme or plan, we consider (1) the time period, (2) the participants, (3) the victims, (4) the motive, (5) the modus operandi, (6) the location, (7) the offenses, (8) whether a common investigation uncovered the offenses and (9) whether the defendant jointly planned the offenses." United States v. Lynch, 477 F.3d 993, 996 (8th Cir.2007).
Evidence presented at trial revealed that Hessman was charged with possession of marijuana with intent to deliver in Dickinson County, Iowa, on April 17, 1996, after Hessman was stopped while driving a pickup truck, which contained approximately six ounces of pre-packaged marijuana. On May 5, 1996, Hessman was charged in Emmet County, Iowa, with manufacturing a controlled substance, "black tarry" marijuana, in a residence. Although Hessman disputed the circumstances of the May 5, 1996 charge, the district court, as was its right, disbelieved his testimony. See United States v. Mugan, 441 F.3d 622, 632 (8th Cir.) (district court disbelieved witness's testimony, and this credibility determination is entitled to deference), cert. denied, ___ U.S. ___, 127 S.Ct. 191, 166 L.Ed.2d 157 (2006). These charges were prosecuted as separate cases. On March 24, 1997, Hessman pled guilty to and was convicted of each charge. He was sentenced to separate but concurrent sentences.
The district court's finding that the two convictions are unrelated as defined by USSG § 4A1.2 is amply supported by the evidence. The offenses occurred on different dates, and Hessman was arrested for the first offense prior to committing the second. Further, the offenses occurred at different locations and in different counties. The first offense involved the possession of packaged marijuana, while the second involved "cooking" marijuana to create a derivative. The second offense involved participants that were not involved in the first. The two offenses were discovered through separate investigations by different law enforcement organizations. Finally, while the two offenses resulted in convictions which occurred on the same date, the cases were not consolidated and retained separate case numbers.
V.
For the foregoing reasons, we affirm the conviction and sentence.
NOTES
[1] The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
[2] That the delay in question is more accurately characterized as occasioned by a continuance granted at the request of the defendant is exemplified by the fact that although Hessman obtained the continuance on September 9, 2004, he did not file his petition for writ of certiorari in the Supreme Court until November 19, 2004, over two months later. Hessman has not explained the reason for this delay.
[3] This court routinely mails copies of letters from the Supreme Court advising of the denial of a petition for a writ of certiorari to the district court solely as a matter of courtesy. Such was the case with the January 20, 2005 memorandum from the clerk of this court to the clerk of the United States District Court for the Northern District of Iowa. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1250274/ | 493 F.3d 131 (2007)
UNITED STATES of America
v.
José R. RIVAS, Appellant.
No. 05-3380.
United States Court of Appeals, Third Circuit.
Argued January 18, 2007.
Rehearing Granted June 8, 2007.
Submitted Rehearing June 8, 2007.
Filed: June 26, 2007.
*132 *133 *134 Patrick L. Meehan, Robert A. Zaumzer, Anne Whatley Chain, [Argued], Andrea B. Grace, United States Attorney's Office, Philadelphia, PA, for Appellee.
Peter Goldberger, [Argued], Pamela A. Wilk, Ardmore, PA, Louis T. Savino, Jr., Louis T. Savino & Associates, Philadelphia, PA, for Appellant.
Before: SLOVITER, RENDELL, and CUDAHY,[*] Circuit Judges.
Panel Rehearing Granted June 8, 2007.
Submitted After Panel Rehearing June 8, 2007.
OPINION OF THE COURT
CUDAHY, Circuit Judge.
A jury convicted Jose Ramon Rivas of conspiring to distribute crack cocaine in violation of 21 U.S.C. § 846. The court, acting in part because of a prior drug offense for which Rivas had been convicted, sentenced him to 240 months in prison. Rivas now appeals, arguing that his conviction is flawed by numerous alleged errors in his trial and that the district court erred in finding that the prosecution had properly filed and served upon Rivas an information charging the prior drug conviction on the basis of which the government sought to enhance Rivas's sentence. For the reasons given below, we affirm.
I. Background
The government indicted Rivas for conspiring with Darrin Culler and Juan Johnson to distribute crack, and for aiding and abetting Darrin Culler's distribution of approximately 80.1 grams of crack on August 7, 2002. The government's case at trial can be divided into two parts: the testimony of confidential informant Charles Mobley and his chief handler, Philadelphia Police Officer Ronald Jones, who explained a sting operation involving four controlled purchases of crack cocaine near the corner of Reed and 7th Streets in Philadelphia, and the testimony of Rivas's alleged co-conspirators, who had pleaded guilty and were cooperating with the government.
Mobley and Jones described a series of police-monitored crack purchases that occurred on April 25, June 25, August 7 and September 12, 2002. Mobley purchased the crack; Jones observed and searched Mobley and his car before and after and observed the purchases, which were also videotaped. Most of the transactions involved Rivas's alleged co-conspirator Culler. Mobley testified that on April 25 he called Culler and asked to buy an ounce and a half of crack; he met Culler in the 700 block of Reed Street and exchanged government-supplied buy money for crack. (Supp.App. at 20-24.) Mobley similarly *135 purchased two ounces of crack from Culler on June 25, 2002.
Mobley first implicated Rivas in his testimony concerning an August 7, 2002 purchase. Mobley testified that on that day he called Rivas and ordered three ounces of crack. Rivas agreed to supply it and selected the 700 block of Reed for the transaction. When Mobley arrived, both Rivas and Culler were there. They walked to Mobley's car; Rivas got in and exchanged the crack for Mobley's buy money while Culler stood at the driver's window. Then Rivas and Culler left. Officer Jones testified that from his vantage point he could see Culler go to Mobley's driver's side window and see Rivas enter the car's passenger door, but he could not see what was going on inside the car. (App. at 41-42.) The transaction was videotaped, but Mobley admitted on cross-examination that due to the camera angle the tape did not show Rivas getting into Mobley's car. (Supp.App. at 65-66.) Jones testified that when he met Mobley after the buy, Mobley gave him three ounces of crack.
Mobley also testified that Rivas set up, though did not physically participate in, a purchase on September 12, 2002. Mobley called Rivas and asked to purchase crack. Rivas said that he couldn't meet Mobley himself, but that he would send someone named "Voo." Mobley found someone matching Voo's description at the location Mobley and Rivas had agreed upon, and exchanged the buy money for the drugs. After the purchase, Rivas called Mobley to ask if everything had gone well with Voo. Rivas's alleged co-conspirator Johnson, nicknamed "Voo," confirmed his and Rivas's roles in the sale, testifying that the crack he delivered belonged to Rivas and that he only made a small commission on the deal. (App. at 112, 114-15; Supp.App. at 80-82.)
Rivas responded by attacking the credibility of the government's witnesses; Mobley, Culler and Johnson were all heavily impeached by their prior crimes and by lies they told about the details of those crimes while on the stand in the present case. Rivas's strategy made use of Culler and Johnson's guilty plea agreements, which Rivas introduced into evidence. The court instructed the jury that the guilty pleas of the coconspirators were "not evidence of the guilt of any other person, including the defendant." (App. at 107, 167.) The jury acquitted Rivas of the aiding and abetting count, but convicted him of the conspiracy count.
At sentencing, the government sought to increase Rivas's statutory minimum sentence on the basis of a prior felony drug trafficking conviction. On November 6, 2004, a few weeks prior to the trial, the government filed an information charging the prior conviction as required by 21 U.S.C. § 851. After trial Rivas moved to strike the information, contending that it had been "neither filed nor served" on him or his attorney "in accordance with the governing law and rules of procedure." (App. at 181.) He claimed that the information was not "filed" within the meaning of § 851 because, among other things, it bore no signature, "electronic or otherwise," and had failed to comply with a local order governing electronic filing. He also claimed that while the government had faxed the information to his counsel it was required to mail the information under applicable rules, and that his lawyers had never received a copy by mail. The government rejoined that any flaws in the information were excusable and that it had mailed the information as required, even if Rivas's counsel had not received it.
The court denied Rivas's motion to strike. It concluded that the clerk had properly excused any noncompliance with *136 the local electronic filing order and that the government had mailed a copy of the information to Rivas's attorney. The court sentenced Rivas to twenty years in prison the statutory minimum to which he could be sentenced, given his prior conviction. See 21 U.S.C. § 841(b)(1)(A).
Rivas now appeals, alleging that the court erred several times during trial: by failing to strike testimony that Rivas was a target of a drug investigation, by allowing the prosecution to purportedly vouch for its witnesses' credibility, by improperly instructing the jury on the use of the alleged co-conspirators' guilty pleas and by failing to grant a mistrial after the prosecutor suggested that defense counsel was attempting to distract the jury from important issues. He also appeals the denial of his motion to strike the information charging his prior conviction.
II. Discussion
A. Trial Errors
Rivas alleges that his conviction was so heavily tainted by errors that it must be reversed despite his failure to timely object to almost all of the purported errors. Generally, failure to object forfeits claims of error. In criminal cases we may always consider a "plain error that affects substantial rights," Fed.R.Crim.P. 52(b), but several hurdles must be cleared before the judgment is reversed. The defendant must show not only that error affected the outcome of the trial, but that the error was clear or obvious under current law. If these requirements are met, we may reverse, if the error "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
In the present case, none of Rivas's claims establish reversible error. We discuss them in turn.
1. "Target" Testimony
Rivas first argues that Officer Jones's testimony that Rivas was the target of a drug investigation was improper hearsay and other-crimes evidence. The government called Jones as its first witness and used him to lay out the background of the controlled buys. Jones explained that in the spring of 2002 he was investigating crack distribution in the 700 block of Reed Street. He was then asked:
Q: Who were the individuals or the people that ended up being the targets of your investigation beginning in April of 2002? What were their names?
A: Darrin Culler, Ramon Rivas. There was one more, Voo, Juan Johnson. (App. at 68-69.)
Rivas argues that although the government purported to offer this evidence to help the jury understand the subsequent controlled buys, it in fact suggested to the jury that there was unseen evidence that Rivas had committed earlier, uncharged drug crimes, violating the hearsay prohibition of Federal Rule of Evidence 802 and the "other-crimes" evidence prohibition of Rule 404(b). Prosecutors often abuse their right to show the jury the context of police behavior by unnecessarily suggesting that the police had evidence (not presented to the jury) that led them to believe the defendant was involved in crime. United States v. Price, 458 F.3d 202, 208 (3d Cir.2006) (citing United States v. Sallins, 993 F.2d 344, 346 (3d Cir.1993)), cert. denied, ___ U.S. ___, 127 S.Ct. 1014, 166 L.Ed.2d 764 (2007). Testimony that the police "targeted" a defendant for an investigation into a specific type of offense is an example of such abuse. United States v. Brown, 451 F.2d 1231, 1234-35 *137 (5th Cir.1971) (holding that testimony that defendants were on a "primary target list" of drug dealers "known to the Sheriff's department" was prejudicial error). But see United States v. Scarfo, 685 F.2d 842, 847-48 (3d Cir.1982) (holding that there is no error where the jury is not told that the defendant was being targeted or the nature of the crime).
The testimony Rivas challenges here is quite difficult to distinguish from the "target list" testimony held inadmissible in Brown; if Rivas was targeted in April 2002 it was probably because of information, possibly supplied by Mobley, about earlier drug transactions. The government argues it did not ask whom the investigation targeted in April of 2002, but rather who "ended up being the target" of the investigation (App. at 69) (emphasis added), and that therefore the question served only to explain where Jones's story was going. But the question is ambiguous and the jury already knew where Jones was going (if it did not already have the targets' names in the indictment, the prosecutor explained in its opening statement that it would hear evidence that the three sold crack to an informant). (App. at 56-57.) The absence of a legitimate reason for the question suggests the testimony was offered for an illegitimate one. Sallins, 993 F.2d at 347; see also Price, 458 F.3d at 210-11 (holding that courts must exclude evidence not legitimately needed to explain the background of police behavior).
Nonetheless, it does not matter whether the testimony was improper, because any error was not plain. The government at least suggested a possible legitimate reason for the question (to put the controlled buys in context), indicating that the error was not plain. Further, Rivas bears the burden of demonstrating that the purported error affected the outcome of the trial, Olano, 507 U.S. at 734-35, 113 S.Ct. 1770, and he has not done so. The government never referred back to the "target" testimony; Rivas claims that it may have briefly suggested in its opening statement that Mobley had told the police incriminating facts about Rivas, but any such suggestion is obscure and unlikely. Even assuming there was a brief suggestion of extra-record evidence against Rivas, the jury was instructed to disregard it. (See App. at 148 ("You must make your determination of the facts solely on the basis of the evidence you have heard and seen and not for any reason outside of this courtroom."); id. at 150 ("You should confine your considerations to the evidence presented from the witnesses and from any exhibits that have been admitted into evidence.").) We are not convinced that the "target" testimony affected the outcome of the trial, so any error cannot be a ground of reversal.
2. Vouching for Witnesses
Next, Rivas contends that the prosecution improperly "vouched" for the truthfulness of its witnesses. Improper "vouching" occurs where a prosecutor suggests that she has reasons to believe a witness that were not presented to the jury. United States v. Harris, 471 F.3d 507, 512 (3d Cir.2006); United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 283 (3d Cir.1999). By contrast, a prosecutor may urge that a witness is trustworthy by arguing from record evidence; vouching occurs only where the prosecutor implicitly refers to information outside the record. United States v. Walker, 155 F.3d 180, 187 (3d Cir.1998).
In the present case the prosecution properly argued that its witnesses were telling the truth. First, in its opening statement the prosecution described Mobley's decision to cooperate with the DEA:
*138 He decides to come forward and cooperate with the DEA, provide the information he knows about other drug dealers and actively participate in this investigation. To help himself, sure. But also to give DEA an accurate picture of what was going on in the streets with these sales that he was involved in. (App. at 57.)
Rivas urges that the phrase "accurate picture" improperly vouched for Rivas's credibility, but we cannot see why. The prosecution discussed Mobley's possible motives for cooperation and suggested that one of them was a pure moral interest in aiding law enforcement. There was no suggestion that the police cooperate only with honest witnesses, that the prosecution could assure the jury that Mobley's testimony would be accurate, or the like.
Second, Rivas argues that the prosecution vouched for Johnson and Culler in its closing argument when it said that "they came here and they told you the truth about what happened." (App. at 123.) But again, the prosecution did not suggest it knew from extra-record evidence that Johnson and Culler were telling the truth. The conclusion was based upon an argument from their reluctance to speak and their "demeanor," both of which the jury could observe for itself. (Id.) The prosecution did not improperly vouch for its witnesses.
3. Jury Instructions on Co-Conspirator Guilty Pleas
Rivas claims that the court improperly instructed the jury on the use of Culler's and Johnson's guilty pleas. The court instructed the jury that "Darrin Culler and Juan Johnson may be considered to be alleged accomplices in this case. The fact that an alleged accomplice has entered a plea of guilt in this case, is not evidence of the guilt of any other person, including the defendant." (App. at 167.)
Rivas argues that this instruction improperly permitted the jury to infer his guilt from the guilty pleas. Although it is true that a jury may not do that, see United States v. Universal Rehabilitation Servs. (PA), Inc., 205 F.3d 657, 668 (3d Cir.2000); United States v. Gaev, 24 F.3d 473, 478 (3d Cir.1994), one is hard pressed to see how the instruction was unclear on this point given that it explicitly said the pleas were not evidence of Rivas's guilt. He suggests that the jury might have used this roundabout reasoning: because the pleas are not evidence of the guilt of "any other person," they must be evidence of Culler and Johnson's guilt. But Culler and Johnson pleaded guilty to conspiring with Rivas. Cf. Universal Rehab., 205 F.3d at 671 (Roth, J., dissenting) ("If two defendants allegedly conspired, and one defendant has been convicted or has pleaded guilty, the clear implication is that the other defendant is also guilty.") Aha, Rivas's hypothetical jury concludes, the pleas are therefore evidence that Rivas is guilty, despite the clear instruction stating that they are not. To follow such reasoning the jury would have to possess an unlikely combination of shrewdness (to invent the argument) and obtuseness (to ignore the obvious meaning of the instruction). We have previously held it was error to instruct the jury that although a co-conspirator's guilty plea was not evidence of the defendant's guilt, the plea could nonetheless be used as the jury "saw fit" in accordance with "common sense," remaining studiously vague about what such a use would be. United States v. Toner, 173 F.2d 140, 142 (3d Cir.1949); see also Universal Rehab., 205 F.3d at 670-71 (Roth, J., dissenting) (discussing Toner). But that instruction clearly invited misuse of the pleas while paying lip-service to proper *139 evidence law; the alleged flaw in the present instruction is much less clear.
At any rate, even assuming there was error, there was no plain error. The parties only used the pleas appropriately, to impeach Culler and Johnson. Having failed to object to the instruction below, the burden is on Rivas to prove that the jury in fact adopted the unlikely reasoning described above. He has not done so.
4. Prosecutorial Misconduct
Finally, Rivas argues that the prosecution improperly "impugn[ed]" the "function and integrity of defense counsel" during its closing argument. During his own closing, Rivas's attorney hammered Mobley, Culler and Johnson for lies they had told the jury about details of their prior crimes, arguing that they were untrustworthy. During rebuttal closing, the prosecutor said:
In his closing argument, Mr. Savino spent an awful lot of time discussing with you discrepancies and what he terms as mistruths and lies and differences in plea agreements and language. I will return the compliment to Mr. Savino, he's a very good advocate, he does his job well and his job is to take your focus off the issue. (App. at 146.)
Unlike most of the errors Rivas ascribes to the district court, he lodged a timely objection to this one, which was sustained. He then moved for a mistrial, which was denied. Rivas argues that the district court erred in denying his motion for a mistrial, a decision which we review for abuse of discretion. United States v. Hakim, 344 F.3d 324, 328 (3d Cir.2003).
To find that the court abused its discretion in failing to order a mistrial for prosecutorial misconduct, we must first be convinced that the prosecution did in fact misconduct itself. We are not; the comment that defense counsel's "job is to take your focus off the issue" was not, in this context, improper argument. Rivas notes that no lawyer may make "unfounded and inflammatory attacks on the opposing advocate," Gov't of Virgin Islands v. Isaac, 50 F.3d 1175, 1185 n. 7 (3d Cir.1995) (quoting United States v. Young, 470 U.S. 1, 9, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). But the government correctly rejoins that attacks on the opposing advocate's arguments and tactics are acceptable, and indeed that attacking and exposing flaws in one's opponent's arguments is a major purpose of closing argument. United States v. Lore, 430 F.3d 190, 213 (3d Cir.2005) (citing United States v. Hartmann, 958 F.2d 774, 785 (7th Cir.1992)).
If this distinction is unclear, it may be helpful to note that the prohibition against personal attacks on attorneys is rooted less in a sense of decorum than in the same rule underlying the prohibition on vouching: one cannot make arguments unsupported by the record evidence. Dispoz-O-Plastics, 172 F.3d at 285 (holding that the invited response doctrine is triggered only when the defense attacks the prosecution "for reasons unsupported by the evidence"); United States v. Pelullo, 964 F.2d 193 (3d Cir.1992) (holding that attorneys may not accuse each other of "misconduct, such as subornation of perjury, unless there is a foundation in the record to support such charges"). In all of the cases Rivas cites as examples of improper attacks on counsel, the discussion of the attorney's character included some sort of suggestion that the attorney had held back or hidden evidence that was not in the record, or faked evidence that was. See Young, 470 U.S. at 4, 105 S.Ct. 1038 (reporting that the defense counsel "intimated that the prosecution deliberately withheld exculpatory evidence"); United States v. Rios, 611 F.2d 1335, 1342 (10th Cir.1979) (reporting that the prosecutor *140 suggested that the defense counsel conspired to fake exculpatory evidence). Claims that the defendant's lawyer is lying often fall into this category by implying that the defense counsel has extra-record reason to believe her client guilty, such as the defendant confessing to her or the attorney's being part of the crime herself. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (reporting that the prosecutor stated that defense lawyers "sit up in their offices and devise ways to pass counterfeit money"); cf. United States v. Gross, 961 F.2d 1097, 1108 (3d Cir.1992); Hartmann, 958 F.2d at 785 (finding no error where "the prosecution argued that certain statements were lies, not that the attorneys were liars"). The rule can therefore be implicated even where the prosecution refrains from intemperate language or imputing evil motives to the defense counsel, so long as the prosecution improperly argues from the defense counsel's mental state in a way not supported by record evidence. See, e.g., United States v. Manriquez Arbizo, 833 F.2d 244, 247 (10th Cir.1987); cf. United States v. Pungitore, 910 F.2d 1084, 1142 (3d Cir.1990) (permitting a prosecutor to present evidence of a defense counsel's involvement in a crime where that evidence was relevant to the charges against the defendant).
In the present case, the prosecution attacked only Rivas's argument, not his counsel. Stating that the defense counsel's "job is to take your focus off the issue" did not suggest that Rivas's lawyer had some mysterious reason to believe him guilty. The comment was a fair attack on Rivas's strategy of impeaching the government's witnesses and arguing for reasonable doubt, which in fact did refocus the jury's attention on whether lies about other subjects rendered the witnesses' testimony about Rivas incredible, rather than the details of their testimony about Rivas. The prosecution made the same legitimate argument when it said that Rivas's counsel spent an "inordinate amount of time" cross-examining and arguing on those issues. (App. at 146.)
Even if we were to find prosecutorial misconduct, the district court was still within its discretion to deny a mistrial. A mistrial is not required where improper remarks were harmless, considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. United States v. Gambone, 314 F.3d 163, 179 (3d Cir.2003) (citing United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir.1995)). Here, the remark was a single sentence in the middle of a perfectly permissible line of argument against the defense's impeachment strategy. It is clear that it did not affect the outcome of the trial.[1] Consequently, Rivas's conviction must stand.
B. Motion to Strike Information Charging Prior Conviction
We now turn to Rivas's sentencing challenge, based on the district court's denial of his motion to strike an information charging him with a prior drug felony conviction. Under 21 U.S.C. § 851(a)(1):
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason *141 of one or more prior convictions, unless before trial . . . the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous conviction to be relied upon. . . . Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
In this case, the government sought to subject Rivas to a statutory minimum sentence of twenty years in prison based on a prior drug trafficking conviction. Consequently, it filed an information charging that conviction on November 6, 2004, prior to trial. However, Rivas moved to strike the information as not having been "file[d] . . . with the court" or "serve[d] . . . on the person or counsel for the person" as required by the statute. (Rivas admits that he was aware of the government's intentions, but we have held that compliance with § 851's filing and service requirements is mandatory, regardless of whether a defendant has actual notice of the government's plans to enhance his sentence. United States v. Weaver, 267 F.3d 231, 247 (3d Cir.2001) (citing Harris v. United States, 149 F.3d 1304, 1307 (11th Cir. 1998)).)
1. Filing
Rivas's argument that the information was not "filed" is based on its noncompliance with a standing order of the District Court for the Eastern District of Pennsylvania governing electronic filing. Section 851(a)(1) does not define "file[]," but both parties agree that it incorporates by reference federal and local rules governing filing. See, e.g., United States v. Severino, 316 F.3d 939, 945 (9th Cir.2003) (holding that federal rules are incorporated by reference into § 851(a)). The standing order states that the "user log-in and password required to submit documents. . serve as the Filing User's signature" for any court purpose, but goes on to state that each document filed electronically must, if possible, indicate that it has been electronically filed, must include a signature block and must include the name of the Filing User preceded by the characters "s/" in the space where a written signature would normally appear. Electronic Case Filing Procedural Order ¶ 8.a, available at http://www.paed.uscourts.gov/ documents/CMECF/locrules/cvor d14.pdf. Although a government attorney properly logged in to submit the information and thus signed it, the document fails to comply with the order's other requirements it does not indicate that it has been electronically filed, and so forth.
Despite the clerk's acceptance of the information as filed (the reason why Rivas had to bring a motion to strike rather than merely note the absence of any information in the record), Rivas claims that the information's shortcomings render it not "filed" within the meaning of § 851. But if § 851 incorporates by reference local rules and orders governing filing, it should also incorporate the law governing those rules and orders, and we have recognized that a district court has discretion to "depart from the strictures of its own procedural rules where (1) it has a sound rationale for doing so, and (2) doing so does not unfairly prejudice" a party who has relied on the rule. United States v. Eleven Vehicles, Their Equipment & Accessories, 200 F.3d 203, 215 (3d Cir.2000); see also Prof'l Programs Group v. Dept. of Commerce, 29 F.3d 1349, 1353 (9th Cir.1994) (holding that a violation of local rules can be excused where it is "so slight and unimportant that the sensible treatment is to overlook it."); Braxton v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir.1984) (same). Here, the clerk accepted the information despite its shortcomings. When *142 the issue was brought to the court's attention, it indicated that it was not concerned with the failure to comply with the order. We find that the signature requirement alone creates an incentive for responsible litigation, see Scarborough v. Principi, 541 U.S. 401, 416, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004), and therefore that the district court had a sound rationale to excuse the other, minor violations of the formatting rules. See Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 76 (2d Cir.2005) (per curiam) (holding that a district court did not abuse its discretion by excusing the inclusion of too-large exhibits and an invalid hearing date in violation of electronic filing requirements); Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1049 (2d Cir.1991) (holding that a district court did not err by excusing noncompliance with certain local rules, in part because the rules were "technical" and "designed to regulate, for convenience sake, how papers look"). Further, Rivas admits he has not suffered prejudice. Consequently, the court's decision to permit the information to stand was entirely proper.
Rivas argues that although § 851 generally incorporates local rules, it implicitly precludes normal discretionary exceptions to them. It states that "[c]lerical mistakes in the information may be amended at any time prior to the pronouncement of sentence." 21 U.S.C. § 851(a)(1). Rivas contends that Congress's provision for correction of clerical errors suggests that Congress intended that clerical errors not be simply ignored or excused. Consequently, he urges, if the failures to comply with the local order on electronic filing were "clerical mistakes," they were never corrected and thus cannot be excused. Cf. Weaver, 267 F.3d at 247-50 (discussing the correction of erroneous descriptions of prior convictions by an amended information).
Whatever other faults this argument might have, see United States v. Hamilton, 208 F.3d 1165 (9th Cir.2000) (excusing a clerical error despite the failure to file a correct amended information); United States v. Steen, 55 F.3d 1022 (5th Cir.1995) (same), we need only address one: the failures to fully comply with the local order were not "clerical mistakes"; these are limited to erroneous descriptions of "the previous convictions to be relied upon." Section 851 is focused on the facts to be included in the information, not on the specific procedures to be used in filing and service (which both parties agree it simply leaves to the general federal procedural rules), and the phrase "clerical mistakes in the information" is best read to refer only to errors in those facts. Different readings would produce awkward inconsistencies, as there seems to be no good reason to excuse certain filing or service errors that are not part of the information itself (and hence not "in the information"), but to forbid any excuse for those that are. We are aware of no cases where the "clerical mistake" provision was addressed to anything other than inaccurate descriptions of prior convictions; indeed, most courts (including this one) strongly distinguish between the procedural filing and service requirements and errors of description, amenable to amendment through § 85 1's clerical mistakes provision. See Weaver, 267 F.3d at 247; Perez v. United States, 249 F.3d 1261, 1265-66 (11th Cir. 2001). Consequently we limit the "clerical mistakes" provision to inaccurate descriptions of prior convictions, and hold that the district court properly excused the government's minor deviations from the electronic filing order and treated the information as filed within the meaning of § 851.
2. Service
Rivas also argued below that there was insufficient evidence to permit *143 the court to conclude that the government had "serve[d] a copy of [the] information" on him or his counsel. 21 U.S.C. § 851(a)(1). Again, both parties agree that § 851 incorporates the normal rules governing service. Further, Rivas claims that the government had the duty to prove beyond a reasonable doubt that it complied with the service rules. See id. § 851(c)(1). This seems doubtful, but the government does not contest it, and at any rate, even assuming Rivas is correct, the court was within its rights to conclude that the government had proved its compliance beyond a reasonable doubt.
The government complied with the service requirements if it mailed a copy to the last known address of Rivas's attorney. Fed.R.Crim.P. 49(b); Fed.R.Civ.P. 5(b)(2)(B). The record contains a certificate of service, signed by Assistant United States Attorney Andrea Grace, stating that she served the information by "first class mail, postage prepaid." (App. at 204.) Rivas argues that this certificate must be read in light of Grace's unsworn representations before the court that she put the information in an envelope, addressed the envelope, and put it in the United States Attorney's Office's mail room's bin for service by U.S. mail, but did not herself deliver the letter to a U.S. Postal Service mailbox. But even if that is so, the record still supports finding beyond a reasonable doubt that the information was served. To prove mailing through a mail room, the government must present testimony about how the mail room works. United States v. Cohen, 171 F.3d 796, 800 (3d Cir.1999) (citing United States v. Hannigan, 27 F.3d 890, 892-94 (3d Cir.1994)). It is not necessary to produce someone who actually works in the mail room so long as the witness has personal knowledge of the mail room's practices. Hannigan, 27 F.3d at 893-94. Grace testified that she had personal knowledge of how the mail room worked: she was familiar with the bin into which she dropped the letter, which was used for letters requiring service by U.S. mail. This was sufficient personal knowledge of the mail room's practices. It would have been pointless to require the government to produce a mail room employee to testify to what is already implicit in Grace's statement; when letters go into the mail room's box for U.S. mail service, the mail room generally sends those letters by U.S. mail that's why they call it the "mail room." Cf. Hannigan, 27 F.3d at 894 (finding that mail room testimony was required when a witness was uncertain whether her company sent checks by U.S. mail or private carrier). The district court did not err by concluding that the information was properly served on Rivas's attorney.
III. Conclusion
For the foregoing reasons, we affirm Rivas's conviction and his sentence.
NOTES
[*] Hon. Richard D. Cudahy, United States Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation.
[1] Rivas also argues in a footnote that the prosecutor suggested facts not supported by the evidence by saying that witnesses were afraid that Rivas had agents stationed in the courtroom who would harm those who testified against him. This argument fails because it is clear that the prosecutor was not suggesting that witnesses were afraid of being harmed but that witnesses were embarrassed by having to testify to the details of their past crimes on cross-examination. (App. at 144-45.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1250279/ | 493 F.3d 952 (2007)
Ronald Lewis GREER, II, Petitioner-Appellant,
v.
State of MINNESOTA; David Carbo, Warden, Respondents-Appellees.
No. 06-2263.
United States Court of Appeals, Eighth Circuit.
Submitted: December 13, 2006.
Filed: July 12, 2007.
*953 *954 Counsel who presented argument on behalf of the appellant was Paul C. Engh of Minneapolis, MN.
Counsel who presented argument on behalf of the appellee was David C. Brown of Minneapolis, MN.
Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Ronald Lewis Greer appeals an order and judgment from the district court[1] denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.[2] Greer attacks his convictions for first-degree and second-degree murder in connection with the shooting death of Kareem Brown. He argues that the Minnesota courts erred by holding that Greer waived a claim of judicial bias and that the trial court denied Greer's right of confrontation and his right to testify on his own behalf. The district court rejected Greer's claims under the deferential standards of 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. We affirm.
Kareem Brown was shot to death on July 26, 1998, in South Minneapolis. The *955 murder weapon, a semi-automatic pistol, was found in a trash can one block from the murder scene. At trial, several witnesses implicated Greer, testifying that they saw Greer or someone matching Greer's description in the area around the time that the murder occurred. Greer's defense was alibi. He and several other witnesses testified that Greer was visiting a friend when Brown was shot.
Greer was arrested in Detroit, Michigan on August 11, 1998, and charged with first-degree and second-degree murder under Minn.Stat. §§ 609.185(1) (1998) and 609.19(1) (2000). After his arrest, two Minneapolis police officers flew to Detroit and interviewed Greer on two separate occasions. According to the police, officers attempted to record the first conversation, but for an unknown reason were unsuccessful. There was some disagreement concerning the content of the first conversation. Greer testified that the police harassed him and told him that they had evidence against him but that he would be released if he could tell the police who committed the murder. During the second interview, which was recorded, Greer told the police that he was present at the scene of the shooting and that it was an individual named "E" who was the gunman. During a third interview with the police in Minneapolis, Greer again implicated E as the gunman, first explaining that he was not at the scene of the crime, but then changing his story and stating that he was with E when the shooting occurred.
At trial, Greer testified on his own behalf. The defense sought to question him extensively about the circumstances surrounding his statements to the police and his state of mind at the time, but the trial court limited Greer's testimony. He did testify, however, that his cell in Detroit was filthy and infested with rats and roaches. Greer also claimed that he told the police that he was at the scene of the crime because he wished to get out of jail. The prosecution presented testimony from Deanna Strom, whose boyfriend, Aaron Jones, had observed Greer moments before the murder. The defense wished to impeach her with evidence from a 1997 conviction for providing false information to the police in violation of Minn.Stat. § 609.506 (2000). The trial court, however, precluded the defense from impeaching Strom, stating that an impeachment by the defense would be misused.
Greer was convicted on both counts of murder on May 13, 1999. Greer appealed his conviction and sentence to the Minnesota Supreme Court on September 10, 1999. He argued the following issues: (1) the trial court improperly limited voir dire questioning; (2) the trial court violated Greer's right to confront witnesses by precluding evidence of Strom's prior conviction; (3) the trial court violated Greer's right to present a meaningful defense by limiting testimony from Greer regarding his pretrial statements to the police; and (4) the trial court erred in refusing to grant a hearing concerning ex parte contacts between the trial court and the jury. The Minnesota Supreme Court rejected all of Greer's claims except the claim regarding contacts between the trial court and the jury, which was remanded to the chief judge of the judicial district for consideration. State v. Greer, 635 N.W.2d 82 (Minn.2001) (Greer I).
On remand, the chief judge ordered a Schwartz[3] hearing, at which the trial *956 judge and six of the twelve jurors testified, and then denied Greer's motion for a new trial, which the Supreme Court of Minnesota affirmed. State v. Greer, 662 N.W.2d 121 (Minn.2003) (Greer II). Sometime after trial but before the Schwartz hearing, Greer obtained and submitted affidavits from two law clerks for the trial judge who stated that "the trial judge appeared `visibly angry at defense counsel' during Greer's trial; that he told them he had `denied defense counsel's challenges for cause because he was angry with them'; and that, contrary to his common practice he had not sent jury questionnaires to the attorneys." Id. at 122. The Minnesota Supreme Court did not address the law clerk affidavits submitted by Greer in its decision, instead ruling that the decision by the chief judge to examine six of the twelve witnesses was not an abuse of discretion. Id. at 125.
Greer submitted a claim of "actual bias" in connection with the law clerk affidavits on January 23, 2002, which was denied by the chief judge; the Minnesota Supreme Court affirmed. Greer v. State, 673 N.W.2d 151 (Minn.2004) (Greer III.) The Minnesota Supreme court ruled that Greer had failed to raise a timely claim and that the claim did not meet either of the two exceptions to this rule recognized by Minnesota courts. Id. at 156-57. The Minnesota Supreme Court has established that all matters known but not raised on appeal "will not be considered upon a subsequent petition for postconviction relief." State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737, 741 (1976). A postconviction court, however, may hear and consider new claims if the "claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided." Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (quotation marks omitted). Minnesota courts also allow substantive review of a claim "if fairness so requires and if the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal." Id. (quotation marks omitted).
Greer petitioned for federal habeas relief. The district court, adopting the report and recommendation of the Magistrate Judge, denied Greer's petition, holding that Greer's claim of judicial bias was procedurally barred and that Greer's remaining claims did not entitle him to habeas relief. The district court did issue a certificate of appealability on all of Greer's claims, and Greer now brings the present appeal.
I.
In the interests of finality and federalism, federal courts are bound by AEDPA to exercise a "limited and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir.2003). Under this standard, federal courts may not grant relief to a state prisoner unless the state court's adjudication of a claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (2000).
A state court decision is contrary to clearly established Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or . . . decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the *957 facts of a particular prisoner's case." Id. at 407-08, 120 S.Ct. 1495. When a district court denies a habeas petition, we review the district court's factual findings for clear error and its legal conclusions de novo. Johnston v. Luebbers, 288 F.3d 1048, 1051 (8th Cir.2002).
II.
Greer argues that the affidavits submitted demonstrate judicial bias and that the Minnesota Supreme Court erred in ruling that the claim was waived. As a threshold matter, it is well-settled that federal courts are precluded from reviewing "a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30, 111 S.Ct. 2546. In such instances, the state prisoner "forfeits his right to present his federal claim through a federal habeas corpus petition, unless he can meet strict cause and prejudice or actual innocence standards." Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir.2004).
Greer makes numerous arguments as to why the district court erred in holding that his claim that the law clerk affidavits established "actual bias" was procedurally barred. Nearly all of his arguments, however, invite us to review the Minnesota Supreme Court's decision for error, which we are not permitted to do except in extraordinary circumstances not present here. See Sweet v. Delo, 125 F.3d 1144, 1151 (8th Cir.1997) (stating that "[i]t is not the office of a federal habeas court to determine that a state court made a mistake of state law"); Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (explaining circumstances in which the application of state law will not prevent adjudication of the federal issue). Greer does argue, however, that the Minnesota Supreme Court reached the merits of his claim, thus opening the decision to review. See Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) ("If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available."). According to Greer, the Minnesota Supreme Court's opining on the likelihood of the affidavits forming a basis for the trial judge's removal constituted an adjudication of his claim on the merits.
Reviewing the court's decision, it is evident that Greer's petition was denied as a matter of state procedural law, and that the court did not reach the merits of his federal claim. The court did conclude that it was "unlikely that the law clerks' affidavits would have formed a basis for removal of Judge Crump." Greer III, 673 N.W.2d at 157. This analysis of Greer's claim, however, was wholly within the context of determining whether the postconviction court was correct in concluding that the doctrine articulated in Knaffla applied. At no point did the Minnesota Supreme Court attempt an adjudication of Greer's constitutional claim, and a limited discussion of the substance of Greer's claim is insufficient to trigger review by this court.
Greer also asserts that cause exists for his procedural default. For the purpose of reviewing a defaulted constitutional claim, "the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. *958 Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). According to Greer, "the affidavits were `not available' to counsel during the direct appeal." He provides no elaboration, however, as to why the affidavits were unavailable, stating only that "[a]fter the hearing, Mr. Greer obtained two affidavits signed by law clerks of Judge Crump."
Greer fails to show cause for his procedural default. He admits that he obtained the affidavits but fails to offer any explanation as to why he waited as long as he did. As the Minnesota Supreme Court points out, Greer "made numerous attempts to recuse Judge Crump," Greer III, 673 N.W.2d at 156, dating back to a pretrial motion for recusal on May 4, 1999. Considering that Greer suspected judicial bias during the course of the trial and obtained the affidavits through his own effort, we are unable to conclude that the cause of Greer's default is "something external to [the appellant], something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753, 111 S.Ct. 2546 (emphasis in original). We therefore conclude that Greer's claim of "actual bias" is procedurally barred.
III.
The confrontation clause of the Sixth Amendment guarantees to a defendant "the right of effective cross-examination" of the witness. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Greer argues that the trial court violated that right when it prevented Greer from impeaching the testimony of Deanna Strom on the basis of her 1997 conviction for providing false information to the police.
On appeal by Greer, the Minnesota Supreme Court determined that the trial court's ruling "was a violation of Rule 609(a)(2) of the rules of evidence," Greer I, 635 N.W.2d at 90, and thus a violation of Greer's right to impeach the witness. Such violations are subject to harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The Minnesota Supreme Court correctly noted the appropriate analysis. Greer I, 635 N.W.2d at 90. The court then concluded that the trial court's error was harmless beyond a reasonable doubt for two reasons. First, the court explained that the "essence of Strom's trial testimony was that [prosecution witness] A. Jones told her that he had information related to Brown's death within a week of the killing." Id. The Minnesota Supreme Court also noted that "Strom's testimony was in part corroborated by that of Paula Morrison, who testified that A. Jones told her he had witnessed something within a week of Brown's death." Id. Second, the court noted that, while the jury never learned of the actual conviction, "Strom's cross-examination revealed the facts underlying her prior conviction, as well as information [regarding payments by the police] suggesting an ulterior motive for her testimony." Id. at 91. The court concluded that "had the excluded evidence been fully realized, the outcome of Greer's trial could not have been different." Id.
Greer argues that excluding Strom's testimony was not harmless because Strom provided key information to the police at an early stage in the investigation. According to Greer, since Strom helped lead the police to Greer, no error concerning her trial testimony could ever be harmless. This argument is without merit. The fact that Strom played a vital role in the investigation does not affect the relative importance of her trial testimony and the consequences of the trial court's error. As the Minnesota Supreme Court explained, Strom provided limited testimony and the facts surrounding her conviction were ultimately disclosed under cross-examination. *959 Regardless of Strom's role in the police investigation, under the deferential standard established by AEDPA, we must conclude that the Minnesota Supreme Court's harmless error analysis did not result in a decision "that was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1).
IV.
Greer argues that the trial court committed error by limiting testimony concerning the circumstances surrounding his statements to the police and his state of mind at the time of his arrest. Criminal defendants possess the constitutional right "to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The Minnesota Supreme Court, after reviewing Greer's claim, determined that the trial court was within its discretion to limit Greer's testimony and therefore did not err. Greer I, 635 N.W.2d at 92. Greer relies on the Supreme Court's decision in Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), to argue that the trial court erred in limiting his testimony and that the Minnesota Supreme Court's decision was an unreasonable application of federal law. In Crane, the Supreme Court ruled that the Supreme Court of Kentucky erred in limiting testimony from a criminal defendant regarding the circumstances surrounding his confession. The Court held that "the physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant's guilt or innocence." Id. at 689, 106 S.Ct. 2142. The Court expressed particular concern that if a trial court can prevent a defendant from explaining the circumstances surrounding a confession, "the defendant is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?" Id.
Greer raised the same argument before the Minnesota Supreme Court. The court distinguished Crane from the instant case by emphasizing the extent to which Greer did explain the circumstances surrounding his comments to the police. The court described in detail Greer's testimony:
Greer was able to present some evidence regarding the circumstances surrounding his pretrial statements and his state of mind at the time. He testified, for instance, that at the time of his arrest "the police had their guns drawn," that he saw them "grab [his girlfriend] from her truck," and that an officer "put his feet in [his] back" and handcuffed him while he was lying on the ground. He also described to the jury the condition of his Detroit jail cell and his inability to fall asleep the night before his interviews with two Minneapolis police officers.
In addition, he testified on the issue of his state of mind during the interviews and explained his motivation for making the statements. He told the jury that he placed himself at the scene of the crime during the second interview in Detroit "[t]o kind of make [himself] into an eyewitness so [he] could get out of jail. . . . "
At the same time, Greer was not permitted to testify that shortly after his arrest he heard a police report indicating that there were shots fired at the building where his friends lived. The trial court also excluded Greer's testimony on the subject of his past experiences with the Detroit police, which included a friend being shot at by a police officer.
Greer I, 635 N.W.2d at 92. The court concluded by stating that "Greer was able to directly attack the credibility of his *960 pretrial statements by describing for the jury why he admitted to being at the scene. The portions of Greer's testimony excluded by the trial court were, by contrast, only marginally relevant to that issue." Id. (internal citation omitted).
We conclude that the affirmance of the trial court's limitation of Greer's testimony did not result in a decision "that was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). The Minnesota Supreme Court addressed the relevant United States Supreme Court precedent and reasoned persuasively that the trial court's decision to limit Greer's testimony was not a violation of his constitutional rights. There is no evidence that Greer was unduly prejudiced in his attempt to explain the circumstances surrounding his statements to the police and we agree with the district court that the Minnesota Supreme Court's decision was not objectively unreasonable.
V.
For the foregoing reasons, we affirm the district court's decision to deny Greer's habeas petition.
NOTES
[1] The Honorable James M. Rosenbaum, Chief Judge, United States District Court for the District of Minnesota, adopting the report and recommendation of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota.
[2] The actual order from the district court dismissed Greer's petition with prejudice. For our purposes, this is a distinction without a difference.
[3] In Minnesota courts, a Schwartz hearing is used when jury impartiality is disputed and allows for the examination of the jurors on the record in the presence of counsel for all parties. Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301, 303 (1960). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1250283/ | 493 F.3d 965 (2007)
Brandy WILSON, Appellant,
v.
Michael J. ASTRUE,[1] Appellee.
No. 06-3627.
United States Court of Appeals, Eighth Circuit.
Submitted: April 13, 2007.
Filed: July 19, 2007.
Counsel who presented argument on behalf of the appellant was E. Gregory Wallace of Buies Creek, NC. Also appearing on the brief was Anthony W. Bartels of Jonesboro, AR.
Counsel who presented argument on behalf of the appellee was Carolyn Ann Ebbers, Special AUSA, Dallas, TX. Also appearing on the brief were Stacey E. McCord, AUSA, and Tina M. Waddell, Regional Chief Counsel, SSA.
Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.
BEAM, Circuit Judge.
Wilson sought disability benefits for her inability to work based upon ailments with an onset date of January 1, 1995. The Administrative Law Judge (ALJ) listed the following disabilities as the basis for Wilson's claim: carpal tunnel syndrome; problems with the fingers; obesity; stomach pain; nausea and occasional vomiting; asthma; nervousness and anxiety; learning disability; depressive disorder and borderline personality disorder. The ALJ denied benefits and the district court affirmed. For the reasons set forth herein, we reverse and remand.
I. BACKGROUND
Wilson is about five feet, five inches tall and weighs approximately 290 pounds. *966 She has a tenth grade education, never received her GED, and has no vocationally relevant past work experience. She applied for SSI benefits twice in the past, in 1992 and 1999, and was denied each time. The movement of her ring finger and small finger on her right hand is limited due to tendon problems. Wilson alleges that she suffers from severe depression and has received mental health care off and on for many years. She experiences nervousness and panic attacks when around people. She claims this anxiety limits her ability to work around others for extended periods of time.
Wilson spends a normal day dropping off her child at daycare and alternating between lying in bed and watching television. Given her obesity, she has difficulty walking too far and has related back problems. Wilson has repeatedly been under the care of a physician for her various ailments since 1999 and has been prescribed many different drugs for her depression and mood swings. She is in the low average range of intellectual functioning with a full scale IQ of 78. Among many other treatments and physician visits, from January 22, 2004, through the time of the hearing, Wilson was treated by Dr. G.R. Guntharp and Rebecca Barron for symptoms of depressive disorder and borderline personality disorder and received a good prognosis toward the end of that treatment. However, there is also an indication in the record that on March 28, 2005, Dr. Larry Felts noted a diagnostic impression of bipolar disorder (moderate) with psychotic features. Throughout the time in question, Wilson's treatment notes and records reveal a history of lethargy, depression, obesity, adjustment disorder, limiting anxiety, and various psychotic symptoms. Her counselor testified that in many ways, Wilson was at her best at the time of the hearing, without much possibility of large improvements.
The vocational expert (VE) testified that Wilson could perform unskilled work as an assembler. In the first hypothetical question, the ALJ asked whether there is work for an individual with the same age and educational background as Wilson who, due to obesity and back pain, is limited to work at a sedentary exertional level in which interpersonal contact is incidental to the work performed, the complexity of tasks is learned and performed by rote, involves few variables and requires little judgment and simple, direct and concrete supervision. The VE responded that Wilson could work as an unskilled assembler with these restrictions. In a second hypothetical, the ALJ asked the VE to assume the above restrictions and also to assume the individual is unable to perform fine manipulations with the ring and little fingers of the dominant hand. The VE again responded that Wilson could work as an assembler. In a final hypothetical, the ALJ asked the VE to assume the above restrictions and also to assume a poor ability to deal with work stresses, deal with supervisors and co-workers, and a poor ability to demonstrate reliability. The VE responded that there would not be any jobs an individual could perform under those circumstances.
Using the five-step evaluation under 20 C.F.R. § 416.920 to determine whether Wilson is disabled, the ALJ determined (1) Wilson had not engaged in substantial gainful activity; (2) the combination of Wilson's impairments amount to a "severe" impairment; (3) none of Wilson's impairments meet or exceed any of the specific listed impairments in the regulations; (4) Wilson had no past relevant work; and (5) that the Commissioner met its burden in showing that there were a significant number of jobs in the economy Wilson could perform, including work as an assembly worker, based in part on the testimony of a vocational expert.
*967 II. DISCUSSION
Our task is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005). "Substantial evidence `is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Chunn v. Barnhart, 397 F.3d 667, 671 (8th Cir.2005) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.2000)). We consider evidence that detracts from the decision as well as evidence that supports it. Porch v. Chater, 115 F.3d 567, 571 (8th Cir.1997).
Here, we find substantial evidence to support the ALJ's conclusions at steps one through four of the five-step analysis, but deviate from the ALJ's analysis at step five. Wilson challenges the hypothetical questions posed to the VE by the ALJ. "`Testimony based on hypothetical questions that do not encompass all relevant impairments cannot constitute substantial evidence to support the ALJ's decision.'" Hillier v. Soc. Sec. Admin., 486 F.3d 359, 365 (8th Cir.2007) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)). "Hypothetical questions should set forth impairments supported by substantial evidence on the record and accepted as true and capture the concrete consequences of those impairments." Hillier, 486 F.3d at 365 (internal quotations omitted).
Noted earlier, the ALJ posed three separate hypotheticals to the VE at the hearing. Wilson claims that two of the hypotheticals raised by the ALJ were defective in that they did not accurately describe Wilson's mental disorders, which impose far greater limitations than the ALJ described. We agree. Since 2004, Wilson has received diagnoses for major depression, psychotic symptoms, bipolar disorder with mixed psychotic features and anxiety, and posttraumatic stress disorder. Wilson claims she has received lifelong mental health care because of her attempted suicides, childhood sexual abuse and foster care. And her treating health care professionals note the ill-effect that her troubled past and childhood has on her current mental deficiencies. At one time, she received a Global Assessment of Functioning (GAF) score of 43, and a full scale IQ score of 78 from Dr. Gilchrist, a licensed psychologist who examined Wilson in connection with the current claim for benefits.
In reviewing all of the evidence, the ALJ acknowledged Wilson's mental health history but particularly honed in on diagnoses and notes from a doctor where Wilson denied symptoms of depression during one visit and only credited Ms. Barron's testimony, the individual with the most regular contact with Wilson at the time of the hearing, to the extent it confirmed Wilson's abilities, limited as they were. The ALJ held that Wilson's moderate bipolar disorder was medically controlled with only intermittent follow-up of medication maintenance. In addition to the medical evidence, the ALJ evaluated Wilson's subjective complaints and found they lacked credibility.
We have carefully reviewed the record and cannot conclude that the decision is supported by substantial evidence on the record as a whole. The ALJ did not articulate why the third hypothetical, which more closely encompassed Wilson's residual functional capacity, was not persuasive in the final assessment. There was significant evidence from treating physicians and health care professionals, mainly Dr. Guntharp and Ms. Barron, that Wilson suffers greatly from her mental illnessesthat she has chronic feelings of being overwhelmed with daily living. The gist of Ms. Barron's testimony was that Wilson does well "considering her circumstances." *968 And, the GAF and full scale IQ scores are certainly pieces of the hypothetical puzzle necessary to gain an accurate overall assessment of Wilson's functioning. These portions of testimony and evidence, along with the records of other treating physicians overwhelmingly support the conclusion that Wilson is limited in her ability to interact with the public and co-workers. It is well settled that a treating source's opinion is to be given controlling weight if the opinion is supported by medically accepted clinical and laboratory diagnostic techniques and is consistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2). Accordingly, there likely are no significant number of jobs in the economy Wilson could perform. For these reasons, the case must be remanded for an award of benefits.
III. CONCLUSION
Accordingly, we reverse the judgment of the district court and remand with instructions to return the case to the Commissioner for further proceedings consistent with this opinion.
NOTES
[1] Michael J. Astrue has been appointed to serve as Commissioner of Social Security, and is substituted as appellee pursuant to Federal Rule of Appellate Procedure 43(c)(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249655/ | 826 P.2d 628 (1992)
312 Or. 655
In re Complaint As to the Conduct of Robert L. WOLF, Accused.
OSB 88-49; SC S38205.
Supreme Court of Oregon, In Banc.
Argued and Submitted January 14, 1992.
Decided February 13, 1992.
Reconsideration Denied March 17, 1992.
James G. Rice, Portland, argued the cause for the accused. With him on the briefs was Mark A. Gordon, Portland.
James H. Clarke, Portland, argued the cause and filed the brief for the Oregon State Bar.
PER CURIAM.
This is a lawyer disciplinary proceeding. The Oregon State Bar charges that the accused engaged in criminal conduct that reflected adversely on his fitness to practice law, in violation of DR 1-102(A)(2),[1] and that he continued professional employment even though his exercise of professional judgment reasonably could have been affected by his personal interests, in violation of former DR 5-101(A).[2]
*629 The trial panel found the accused guilty of violating DR 1-102(A)(2) and former DR 5-101(A) and ordered that he be suspended from the practice of law for three years, with the suspension stayed after one year if certain probationary terms are satisfied. The accused seeks review. We review the record de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing ethical misconduct by clear and convincing evidence. BR 5.2.
We find the accused guilty of violating DR 1-102(A)(2) and former DR 5-101(A). We suspend him from the practice of law for 18 months.
FINDINGS OF FACT
Many of the essential facts are undisputed and may be summarized briefly.
The accused was admitted to practice law in Oregon in 1977. At the time of the hearing, he handled personal injury cases and criminal defense. Criminal defense had been a significant part of his practice for about ten years. Previously, he had served as a deputy district attorney for almost two years. The accused was born in 1949 and was married at the time of the events in question.
In late 1987, the accused undertook to represent a teenage girl and her parents in a personal injury action, arising from an automobile accident in which the girl suffered injuries. The injuries included a closed head injury, injuries to the pelvis, and permanent facial scarring. The girl was in a coma for several days, suffered from short-term loss of memory, and had to undergo rehabilitation therapy. The girl turned 16 years old in October 1987.
On the girl's behalf, the accused settled the personal injury case for $200,000. On April 29, 1988, a limousine was rented for the girl so that she could celebrate the settlement by spending the day in Portland. That afternoon, at the girl's urging, the accused served her wine and engaged in sexual intercourse with her in the back seat of the limousine. He knew that the girl was 16 years old and that it is a crime to give alcohol to a person who is under 21.
A grand jury indicted the accused for contributing to the sexual delinquency of a minor,[3] sexual abuse in the third degree,[4] and furnishing alcohol to a minor.[5] The circuit court rejected a civil compromise proposed jointly by the accused and by the girl and her parents. The accused entered into a one-year diversion program, which he completed successfully, and the criminal charges were dismissed.
Initially the parents were upset and angry at the accused. The accused admitted at the hearing that he knew that the parents would not approve of his having sexual relations with the girl and that if he had realized that they would find out, "that would have stopped me."
Additional facts, some of which are disputed, will be discussed as appropriate below.
DR 1-102(A)(2)
The accused's conduct violated three criminal statutes: sexual abuse in the third degree, contributing to the sexual delinquency of a minor, and giving alcohol to *630 a minor. In In re White, 311 Or. 573, 589, 815 P.2d 1257 (1991), this court held:
"Each case must be decided on its own facts. [In order for a criminal act to serve as a predicate to disciplinary action, t]here must be some rational connection other than the criminality of the act between the conduct and the actor's fitness to practice law. Pertinent considerations include the lawyer's mental state; the extent to which the act demonstrates disrespect for the law or law enforcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; and the presence or absence of a pattern of criminal conduct."
We begin by considering the lawyer's mental state and the extent to which the acts demonstrate disrespect for the law or law enforcement. The accused acted intentionally and for personal gratification. He also knew that he was violating the law.
The next factor to be considered is the extent of actual or potential injury to a victim. The accused testified, and argues before us, that the girl suffered no actual harm. He does not, and could not reasonably, argue that the criminal acts that he committed did not carry with them substantial potential injury to a victim. We find, by clear and convincing evidence, that the accused caused actual harm, including psychological harm, to the girl and to her parents. For example, the girl's pastor testified that she wrote a note after the incident, blaming herself for the accused's difficulties and contemplating suicide, and the girl's mother testified that the girl "was taking things, I think, very, very hard" in the aftermath of the incident. The mother also testified that the situation was very painful for the rest of the family.
Finally, this record does not establish a pattern of criminal conduct by the accused.
From a review of all the facts, we conclude that there is a rational relationship between the accused's criminal conduct and his fitness to practice law. The accused's crimes involved a girl who was the beneficiary of his professional efforts. Moreover, the accused testified that he thought that the girl understood him to be her lawyer. See In re Weidner, 310 Or. 757, 770, 801 P.2d 828 (1990) (lawyer-client relationship may be based on reasonable expectation of putative client).
The accused's crimes had as their victim a person whose interests he was representing and a person whom the law deems incapable of making certain important decisions, such as the decision to consent to sexual intercourse and the decision to prosecute or settle a tort claim. Such conduct shows disrespect for the law, which the lawyer has sworn to support, ORS 9.250, and bears on the trustworthiness of a lawyer who is retained to assist a vulnerable person. See In re Howard, 297 Or. 174, 681 P.2d 775 (1984) (conviction for prostitution supported a stipulation for lawyer discipline, because crime was a misdemeanor involving moral turpitude); In re Bevans, 294 Or. 248, 655 P.2d 573 (1982) (lawyer who was convicted of sexual abuse in the second degree committed a misdemeanor that involved moral turpitude and was suspended summarily; reinstatement allowed on proof of rehabilitation). Courts in other states have held that similar offenses reflect adversely on fitness to practice law. See Com. on Pro. Ethics & Conduct v. Hill, 436 N.W.2d 57 (Iowa Sup.Ct. 1989) (lawyer sanctioned for accepting sex from client in lieu of a fee); Matter of Herman, 108 N.J. 66, 527 A.2d 868 (1987) (lawyer suspended on grounds of moral turpitude for making unlawful sexual advances to child, unrelated to practice of law); Office of Disciplinary Counsel v. King, 37 Ohio St.3d 77, 523 N.E.2d 857 (1988) (consensual sex with 15-year-old non-client reflected adversely on fitness to practice law).
The accused's criminal acts reflect adversely on his fitness to practice law; he violated DR 1-102(A)(2).
FORMER DR 5-101(A)
Former DR 5-101(A) prohibited a lawyer from accepting employment if the exercise of professional judgment on the client's behalf would be or reasonably could be affected by the lawyer's personal interests, *631 unless the lawyer obtained informed consent. That disciplinary rule also included continued, as well as initial acceptance of, employment. In re Moore, 299 Or. 496, 507, 703 P.2d 961 (1985).[6]
The accused argues that his employment by the girl's parents was, for all practical purposes, at an end when the crimes occurred. We disagree. The accused's employment as a lawyer was not at an end, even though a settlement had been reached. The proceeds of the settlement had not been distributed, and the record shows that the accused ultimately transferred the file to another lawyer, who received a fee for finishing work on the case. Thus, the accused's employment was continuing.
The accused also had a personal interest. He testified that, before the settlement had been approved by the court, he realized that he had developed a strong sexual interest in the girl, and she in him.
Although the record does not disclose an actual compromise of the accused's professional judgment in the conduct of the personal injury action, the exercise of his professional judgment on his clients' behalf reasonably might have been affected by his personal interest. From his testimony, the accused appears to have recognized that possibility.
Finally, the girl's consent to the acts does not amount to informed consent to the accused's continuing representation.
We conclude that the accused's acts violated former DR 5-101(A).
SANCTION
In deciding on the appropriate sanction, this court refers for assistance to the American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards). In re White, supra, 311 Or. at 591, 815 P.2d 1257. ABA Standard 3.0 sets out the factors to consider: the duty violated, the lawyer's mental state, the potential or actual injury caused by the misconduct, and the existence of aggravating or mitigating factors.
The accused breached his duty to the minor whose interests he was representing, and to her parents, when he took advantage of their professional relationship for personal gratification. He breached his duty to the legal system by violating criminal laws. He breached his duty to the public by undermining confidence in members of the legal profession to fulfill professional obligations properly toward vulnerable persons.
As noted above, the accused acted intentionally, with knowledge that he was violating the criminal law, and for personal gratification.
We also have found that the girl and her parents suffered actual harm from the accused's acts. Those acts carried the potential for even greater harm.
The pertinent ABA Standards suggest that suspension is the appropriate sanction in this kind of situation. See ABA Standard 4.32 (conflict of interest between lawyer and client); ABA Standard 5.12 (criminal conduct that seriously adversely reflects on lawyer's fitness to practice). In considering the length of suspension, we next consider pertinent aggravating and mitigating factors.
There are several aggravating factors. First, the accused acted from a selfish motive, ABA Standard 9.22(b), in this instance, the motive of sexual gratification. Second, his conduct involved a victim who was vulnerable. ABA Standard 9.22(h). Third, he had substantial experience in the practice of law at the time of the events in question. ABA Standard 9.22(i). Fourth, the accused committed multiple offenses, ABA Standard 9.22(d), although they all arose out of the same incident.
A fifth aggravating factor is lack of candor during the disciplinary process. ABA Standard 9.22(f). The accused testified that he thought that the age of consent for sexual intercourse was 16 rather *632 than 18. We disbelieve that testimony, for two reasons. First, the accused acknowledged that he knew the age of consent in Oklahoma and Michigan, where he was reared, even before he became a lawyer. Second, the accused is an experienced criminal defense lawyer and former prosecutor in Oregon and has handled cases involving sexual crimes.
A sixth aggravating factor, refusal to acknowledge the wrongful nature of the conduct, ABA Standard 9.22(g), requires some discussion. The tenor of the accused's testimony was that he was the victim of a vindictive district attorney and Bar. He testified, for example, that he should not have been prosecuted for crimes, because the family did not want him to be, and that he should not have been disciplined by the Bar: "I think the State Bar should have shown more sensitivity." The accused testified that he did not believe that his conduct was unethical or that it injured the girl, because she was mature and sexually experienced and because she seduced him. The accused's testimony reveals that his most central thoughts were for himself, both at the time of the incident and afterward. With respect to his mental state at the time of the incident, he testified:
"Q. Did you think it could have hurt her parents?
"A. I don't think it crossed my mind.
"Q. Did you think it could hurt her?
"A. Did I think it could hurt her? No.
"Q. Did you think it could hurt you?
"A. I think that may have crossed my mind, but I don't know if I thought about it."
The accused further testified that he went to a bar immediately after the incident:
"Q. * * * [Y]ou walked into [the bar]. You walked in with a smile on your face and bragged about having sex in the back of a limousine?
"* * * * *
"A. I don't know about bragged. I told [a friend] what had occurred. I was quite frankly in a fairly good mood about it. I had made the largest fee of my professional career and I'd had sex in the back of a limo with somebody who I liked and found very sensual. So I was not sad. So maybe brag is correct."
Although the accused paid lip service to feeling remorse later, his testimony demonstrates to us that he regrets the consequences of his conduct primarily because of their impact on him, his own family, and their interests.
In short, the accused still does not recognize fully the impact of his misconduct on his clients, the public, and the legal system. We note that, under the ABA Standards, the failure of an injured client to complain, or the claim of a lawyer that the client induced the wrongful conduct, is not mitigating. ABA Standard 9.4(b) & (f) and Commentary.
There also are, however, some mitigating factors. First, the accused has received no prior formal discipline. ABA Standard 9.32(a). Second, there was some delay in completing the disciplinary proceedings. ABA Standard 9.32(i). Third, the accused attempted to rectify the consequences of his misconduct, ABA Standard 9.32(d), by obtaining substitute counsel for the family and by fully informing his existing and potential clients of the pending charges. Fourth, the accused undertook rehabilitation efforts in the interim. ABA Standard 9.32(j).
The trial panel imposed a three-year suspension, but concluded that the last two years should be stayed if certain probationary terms (requiring therapy and drug counseling) were met. The accused, the Bar, and we agree that the record does not support those probationary terms. See In re Haws, 310 Or. 741, 752, 801 P.2d 818 (1990) (conditions of probation must relate to the charges).
Before this court, the Bar calls for a three-year suspension, without probation or stay, relying on assertedly similar cases from other jurisdictions. See People v. Grenemyer, 745 P.2d 1027 (Colo. 1987) (lawyer convicted of sexual assault of a minor was disbarred); Matter of Wells, 572 N.E.2d 1290 (Ind. 1991) (three-year suspension for unsolicited touching of young men *633 during course of professional relationship); Matter of Christie, 574 A.2d 845 (Del. Sup.Ct. 1990) (three-year suspension for misconduct involving alcohol and masturbation with teenage non-clients); Matter of Disciplinary Proceedings Against Woodmansee, 147 Wis.2d 837, 434 N.W.2d 94 (1989) (three-year suspension for fourth degree sexual assault on client). The accused argues that a reprimand is the appropriate sanction.
The accused, in his testimony, revealed an astonishing lack of appreciation for the nature and extent of his professional obligations and for the potential and actual harm to his clients from his conduct. His principal focus has been on himself, his family, and their social and financial interests. Nonetheless, egocentrism is not a violation of the disciplinary rules, and the aggravating factors are counterbalanced to some extent by the mitigating factors.
We conclude that an 18-month suspension, without probation or stay, is the appropriate sanction in this case.
The accused is suspended from the practice of law for a period of 18 months, effective on issuance of the appellate judgment. The Oregon State Bar is awarded its actual and necessary costs and disbursements. ORS 9.536(4).
NOTES
[1] DR 1-102(A)(2) provides:
"It is professional misconduct for a lawyer to:
"* * * * *
"(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law[.]"
[2] At the time of the events in question, former DR 5-101(A) provided in part:
"Except with the consent of the lawyer's client after full disclosure, a lawyer shall not accept employment if the exercise of the lawyer's professional judgment on behalf of the lawyer's client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests."
[3] ORS 163.435(1)(a) provides:
"A person 18 years of age or older commits the crime of contributing to the sexual delinquency of a minor if:
"(a) Being a male, he engages in sexual intercourse with a female under 18 years of age[.]"
[4] ORS 163.415(1)(b) provides:
"A person commits the crime of sexual abuse in the third degree if the person subjects another person to sexual contact; and
"* * * * *
"(b) The victim is incapable of consent by reason of being under 18 years of age, mentally defective, mentally incapacitated or physically helpless."
[5] ORS 471.410(2) provides:
"No one other than the person's parent or guardian shall sell, give or otherwise make available any alcoholic liquor to a person under the age of 21 years. A person violates this subsection who sells, gives or otherwise makes available alcoholic liquor to a person with the knowledge that the person to whom the liquor is made available will violate this subsection."
[6] DR 5-101(A) has been amended. Effective January 2, 1991, it expressly states that a lawyer "shall not accept or continue employment" in the described circumstances. (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1249704/ | 142 Ga. App. 875 (1977)
237 S.E.2d 237
LOAR
v.
THE STATE.
54077.
Court of Appeals of Georgia.
Argued May 24, 1977.
Decided July 14, 1977.
Guy B. Scott, Jr., for appellant.
Ken Stula, Solicitor, for appellee.
McMURRAY, Judge.
Defendant was charged by accusation with the offense of a misdemeanor, driving under the influence of alcohol. The jury returned a verdict of guilty, and defendant appeals. Held:
1. The defendant contends that the trial court erred by failing to charge the jury that the presumptions authorized by Code Ann. § 68A-902.1 (b) (3) (Ga. L. 1974, pp. 633, 672) may be rebutted. But the defendant offered no evidence in rebuttal, and the court did not err in failing to charge relative to an issue concerning which there is no evidence. Burgess v. State, 117 Ga. App. 284 (3) (160 SE2d 411); Rogers v. State, 137 Ga. App. 319 (2) (223 SE2d 456). See also Lockhart v. Liberty Mut. Ins. Co., 141 Ga. App. 476, 479 (2) (233 SE2d 810).
2. The arresting police officer testified that she had administered a photo-electric intoximeter test to defendant using the procedures outlined by the state crime laboratory, and she also testified as to results of that test. Code Ann. § 68A-902.1 (a) (1), supra, provides that upon the trial of a criminal action arising out of acts alleged to have been committed by any person while driving under the influence of alcohol or drugs, evidence of the amount of alcohol or drugs in a person's blood at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath or other bodily substance, shall be admissible if such chemical analysis shall have been performed according to methods approved by the state crime laboratory and by an individual possessing a valid permit issued by the state crime laboratory for this purpose. The state introduced a copy of the arresting police officer's permit card which authorized her to perform analyses utilizing photo-electric intoximeter Model 300 or 400 only. Generally, the question of whether *876 a witness has such learning and experience in a particular field of endeavor as to entitle him to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless it is manifestly abused. Rouse v. Fussell, 106 Ga. App. 259 (4) (126 SE2d 830), and cits. on p. 262. Objection was made that a proper foundation had not been laid for her testimony or a proper showing that she was qualified to administer such a test. Whereupon, the court asked her whether or not she knew the model number of the photo-electric intoximeter that she used for the test. The police officer then testified that she did not remember the number of the model of photo-electric intoximeter she had used in administering the test to defendant, but believed it was a Model 633. Of course, an expert witness cannot be restricted to the actual test required, and his knowledge and expertise may be presented by other testimony. See Herrin v. State, 138 Ga. App. 729 (7) (227 SE2d 498). But here she offered very limited testimony as to her training to conduct analyses on Models "300 and 400 only," and she was not certain of the model she used believing it was "633." The state failed to show that the police officer who administered the intoximeter test to defendant utilized either a "Model 300" or "Model 400" and was thus authorized according to the provisions of Code Ann. § 68A-902.1 (a) (1), supra. The court erred in failing to strike the testimony of the police officer as to defendant's blood alcohol content.
3. Enumeration of error number 1 relating to a possibility of tainting of a jury panel before which this case was tried need not be considered as the judgment is reversed for reasons stated in Division 2.
Judgment reversed. Bell, C. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1034279/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 07-56549
Plaintiff-Appellee,
D.C. No.
v. CV-05-06703-
SVW-SH
$186,416.00 IN U.S. CURRENCY ,
Defendant.
ORDER
UNITED MEDICAL CAREGIVERS
CLINIC, INC.,
Claimant-Appellant,
PAUL L. GABBERT ,
Intervenor.
Filed July 17, 2013
Before: Michael Daly Hawkins, Marsha S. Berzon,
and Richard R. Clifton, Circuit Judges.
2 UNITED STATES V . $186,416.00 IN U.S. CURRENCY
SUMMARY*
Attorneys’ Fees / Civil Forfeiture
The panel held that intervenor Paul Gabbert, an attorney
whose client substantially prevailed in a federal civil forfeiture
action, had standing to pursue an attorney’s fee award, and
was entitled to receive direct payment of the fee award under
the Civil Asset Forfeiture Reform Act and the parties’ fee
agreement.
ORDER
Intervenor Paul Gabbert represented United Medical
Caregivers Clinic (“UMCC”) in a civil forfeiture proceeding
initiated by the United States, in which UMCC prevailed. See
United States v. $186,416.00 in U.S. Currency, 590 F.3d 942
(9th Cir. 2009). The Civil Asset Forfeiture Reform Act
(“CAFRA”) provides that in “any civil proceeding to forfeit
property under any provision of Federal law in which the
claimant substantially prevails, the United States shall be liable
for reasonable attorney fees and other litigation costs
reasonably incurred by the claimant.” 28 U.S.C.
§ 2465(b)(1)(A).
UMCC moved for an award of attorney fees and
specifically requested that the fee award be paid directly to
counsel, rather than to UMCC as the claimant. The
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . $186,416.00 IN U.S. CURRENCY 3
government did not contest UMCC’s entitlement to fees as a
substantially prevailing party but objected to the request that
the fee award be paid directly to UMCC’s attorney. We
denied UMCC’s request that the fee award be paid directly to
Gabbert, holding that a fee award under CAFRA is payable to
the claimant, not the claimant’s attorney. We referred the
matter to the Appellate Commissioner to calculate an
appropriate fee award to be awarded to be payable to UMCC.
See United States v. $186,416.00 in U.S. Currency, 642 F.3d
753 (9th Cir. 2011).
Gabbert learned that UMCC had been suspended as a
California corporation and was unable to further participate as
a party in the case. He requested permission to intervene to
request a petition for rehearing of the order we entered in
2011. We granted him intervenor status, though we denied the
petition for rehearing that he filed on his own behalf. Gabbert
has since moved for an award of attorney’s fees to be paid
directly to him, in light of fee agreements between him and
UMCC assigning any fee award to him. The government has
moved to dismiss the case, primarily on the basis that Gabbert
lacks standing to pursue the fee award.
We conclude that Gabbert has standing to pursue the fee
award and is entitled to receive payment of the fee award. We
deny the government’s motion to dismiss, and we refer the
matter back to the Appellate Commissioner to calculate the
amount of the fee award.
1. Motion to pay the fee award to Gabbert
Because this is a case where “jurisdiction is so intertwined
with the merits that its resolution depends on the resolution of
4 UNITED STATES V . $186,416.00 IN U.S. CURRENCY
the merits,” we first address whether Gabbert is entitled to
receive direct payment of a fee award by virtue of his fee
agreements with UMCC before turning to the issue of whether
Gabbert has standing. Orff v. United States, 358 F.3d 1137,
1150 (9th Cir. 2004), aff’d, 545 U.S. 596 (2005).
In our previous order, we did not address whether a
CAFRA fee award can be paid directly to a claimant’s
attorney when so provided in a fee agreement. We held that,
as a general matter, CAFRA fee awards are paid to the
claimant rather than the attorney. $186,416.00 in U.S.
Currency, 642 F.3d at 755–56. Since then, Gabbert has
brought to light fee agreements between him and UMCC that
assign the right to collect any fee award to Gabbert. Based
upon the agreements, Gabbert also obtained an order from the
state superior court, filed November 29, 2012, awarding him
an equitable interest in the fee award owed to UMCC. We
conclude that these agreements permit Gabbert to collect the
award.
In interpreting other fee award statutes, we have strongly
suggested that fees may be directed to an attorney on account
of a contractual assignment, even when the attorney has no
statutory right to collect fees directly. In Virani, the majority
opinion held that once a plaintiff demands attorney’s fees for
a successful False Claim Act qui tam action, the fees “must be
directed to the attorney.” U.S. ex rel. Virani v. Jerry M. Lewis
Truck Parts & Equip., Inc., 89 F.3d 574, 578–79 (9th Cir.
1996). Judge Thomas concurred with the result, that the fees
be paid directly to the attorney, but on the narrower ground
that the plaintiff had assigned his right to the fees to his
lawyers. Id. at 580. Subsequent decisions interpreting other
fee award statutes have specifically endorsed Judge Thomas’s
UNITED STATES V . $186,416.00 IN U.S. CURRENCY 5
reasoning. See, e.g., Gilbrook v. City of Westminster,
177 F.3d 839, 875 (9th Cir. 1999) (attorney’s fees under
42 U.S.C. § 1988); Image Technical Serv., Inc. v. Eastman
Kodak Co., 136 F.3d 1354, 1359 (9th Cir. 1998) (attorney’s
fees under the Clayton Act). We fail to see why this reasoning
would not similarly apply to fee awards under CAFRA.
The government, noting the principle that “it is the party’s
right to waive, settle, or negotiate [attorney’s fees]
eligibility,”Venegas v. Mitchell, 495 U.S. 82, 88 (1990),
argues that these rights remain with the party up until a final
fee amount is calculated and ordered. Whether or not that may
be generally true, in this case there is no discernable conflict
between direct payment of the fee award to Gabbert and
UMCC’s right to waive, settle, or negotiate eligibility for a fee
award. UMCC moved for a fee award in this case and
assigned the right to collect that award to Gabbert. UMCC
has not waived or settled its claim for a fee award, nor has it
expressed any interest in doing so. Indeed, as a suspended
corporation, it may not even be capable at present to take such
action on its own behalf. The possibility of UMCC waiving or
settling its eligibility for a fee award appears at most
theoretical. If UMCC takes such action prior to payment of
the award to Gabbert, there might be a question for us to
consider, but the award should not be forfeited in the
meantime based on such a remote possibility.
We also note that this is not a case where the attorney is
seeking a direct assignment of fee awards to jump ahead of
other creditors. In Astrue v. Ratliff, the Supreme Court
determined that the attorney has no statutory right to direct
the payment of fees awarded under the Equal Access to
Justice Act to himself rather than the prevailing party. 130
6 UNITED STATES V . $186,416.00 IN U.S. CURRENCY
S. Ct. 2521, 2529 (2010). In that case, because the award was
payable to the party, it was subject to an offset to satisfy a
preexisting debt that the party owed the United States. Id. at
2524. The Court noted, however, the “practical reality that
attorneys are the beneficiaries and, almost always, the ultimate
recipients of the fees” because of “nonstatutory (contractual
and other assignment-based) rights that typically confer upon
the attorneys the entitlement to payment of the fees award the
statute confers on the prevailing litigant.” Id. at 2529.
Here, UMCC has been dissolved, and no other creditor
has come forward to contest the assignment to Gabbert. The
government has not asserted an offset claim. There is no
concern that direct payment of the fee award to the attorney
will deprive the government or another creditor of what it is
due. The government should not be able to negate the fees it
owes to UMCC just because UMCC has been dissolved and
the only creditor who appeared to collect in its stead is the
attorney. Whatever might be the case where there are
competing creditors, we conclude that, under these
circumstances, Gabbert is entitled to receive payment of the
fee award.1
1
The government has waived any argument that the UMCC’s
assignment of the award to Gabbert was invalid under the Anti-
Assignment Act, 31 U.S.C. § 3727. The government only mentions the
Act in its reply brief and even then does not explain its application to this
case. See United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006)
(“Issues raised for the first time in an appellant’s reply brief are generally
deemed waived.”).
UNITED STATES V . $186,416.00 IN U.S. CURRENCY 7
2. Motion to dismiss
The government moves to dismiss this action, arguing that
Gabbert lacks standing to litigate the fee award under Pony v.
County of Los Angeles, 433 F.3d 1138 (9th Cir. 2006). Pony
did not hold that an attorney can never have standing to
litigate a fee award. Rather, the standing inquiry turned on
whether the attorney had valid contractual rights he sought to
protect. In that case, the client had assigned to her attorney
the right to apply for, waive, settle, or collect any fee award,
but the client nonetheless entered into a settlement that waived
any claim to a fee award. Id. at 1140–42. The court rejected
the attorney’s argument that he had standing to pursue a fee
agreement by virtue of the assignment because the assignment
of the right to apply for a fee award was invalid as a matter of
law. Id. at 1142. The court concluded that the attorney lacked
standing to bring a claim because he lacked valid contractual
rights. Id. at 1145. In so concluding, the court specifically
distinguished between the right to collect fee awards, which
can generally be freely assigned, and the right to assign the
right to seek or waive attorney’s fees, which cannot be
transferred. Id. at 1144–45.
This case does not present the same situation as Pony.
UMCC has not entered into a settlement that waived any claim
to a fee award, and Gabbert has a valid contractual right to
collect the fee award. Gabbert has standing to protect his
right.
3. Conclusion
We grant Gabbert’s motion for fees insofar as he requests
that the fee award be paid directly to him and refer the
8 UNITED STATES V . $186,416.00 IN U.S. CURRENCY
question of the amount of the award to the Appellate
Commissioner. We deny the government’s motion to dismiss
the appeal.
MOTION TO DISMISS DENIED; MOTION FOR
FEE AWARD GRANTED; REFERRED TO THE
APPELLATE COMMISSIONER. | 01-03-2023 | 07-19-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1034282/ | FILED
NOT FOR PUBLICATION JUL 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMAN T. TATARINOV, No. 12-35184
Petitioner - Appellant, D.C. No. 3:09-cv-01377-HU
v.
MEMORANDUM*
JEFF PREMO,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted July 11, 2013**
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
Roman Tatarinov’s sentence for his conviction for identity theft was
enhanced because of his prior involvement in similar activity, a fact found by the
sentencing judge but not proven to a jury. Tatarinov claims that this was a
*
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).
violation of his Sixth Amendment right to a jury trial, but he made no objection
until his appeal.
The Oregon Court of Appeals considered Tatarinov’s Sixth Amendment
argument under Oregon’s plain error rule—Oregon Rule of Appellate Procedure
5.45(1)—which considers (1) if there was an obvious constitutional error and (2)
whether the court should exercise its discretion to correct the error. See State v.
Tatarinov, 120 P.3d 1253, 1254 (Or. Ct. App. 2005) (“Tatarinov I” (per curiam)).
After the Oregon Court of Appeals initially granted relief, the case was
remanded by the Oregon Supreme Court for reconsideration in light of State v.
Ramirez, 173 P.3d 817 (Or. 2007). See State v. Tatarinov, 195 P.3d 64 (Or. 2008).
On remand, the Oregon Court of Appeals considered whether, even assuming that
there was an obvious constitutional error, it should exercise its discretion to review
the claim. State v. Tatarinov, 205 P.3d 79, 80–81 (Or. Ct. App. 2009) (“Tatarinov
II”). In deciding whether to exercise its discretion, the Oregon Court of Appeals
took account of “numerous considerations, including ‘the competing interests of
the parties; the nature of the case; the gravity of the error; [and] the ends of justice
in the particular case.’” Id. at 80 (quoting Ailes v. Portland Meadows, Inc., 823
P.2d 956, 959 n.6 (Or. 1991)). Because “the record indicates that defendant had
extensive, ongoing involvement in activities related to identity theft and forgery,”
Page 2 of 4
and because Tatarinov did not contest that fact, the Oregon Court of Appeals
declined to correct the error. Id. at 81.
Tatarinov sought habeas relief in federal court, but the district court denied
his petition. The adequate and independent state ground doctrine bars federal
courts from considering a federal constitutional argument on habeas review if “a
state court declined to address a prisoner’s federal claims because the prisoner had
failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S.
722, 730 (1991). The Oregon Court of Appeals rejected Tatarinov’s claim based
on its consideration of the equitable interests of the parties in his case, which is
independent of federal law. See Nitschke v. Belleque, 680 F.3d 1105, 1108 (9th
Cir. 2012) (holding that Oregon’s plain error review is independent of state law).
The Oregon plain error rule is also an “adequate” state ground because it is
“firmly established and regularly followed.” Walker v. Martin, 131 S. Ct. 1120,
1127 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60–61 (2009)). The fact that
Oregon clarified its rule while Tatarinov’s case was on direct appeal does not
render it inadequate. See Kindler, 558 U.S. at 63–66 (Kennedy, J., concurring).
Even if the exact contours of the doctrine were not clarified until Ramirez,
Tatarinov had no reasonable expectation that he could default his claim but still
obtain review on appeal.
Page 3 of 4
AFFIRMED.
Page 4 of 4 | 01-03-2023 | 07-19-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1036990/ | FILED
United States Court of Appeals
Tenth Circuit
August 9, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ROBERT G. WING, as Receiver for
VesCor Capital Corp. and VesCor Capital,
Inc., Nevada corporations, VesCorp
Capital LLC, VesCorp Capital IV-A,
LLC, and VesCorp Capital IV-M, LLC,
Nevada limited liability companies, and
their related entities,
Plaintiff-Appellee,
v. No. 12-4123
BERNARD C. BUCHANAN; (D.C. No. 2:08-CV-00803-DB)
BERNARDO’S CORPORATION, a (D. Utah)
Nevada corporation; BUCHANAN
FAMILY TRUST; B&I BUCHANAN
FAMILY LIMITED PARTNERSHIP, a
Nevada limited partnership; BUCHANAN
FAMILY LIMITED PARTNERSHIP, a
Nevada limited partnership; BUCK
INVESTMENTS, LLC; BAKI, LLC,
Defendants-Appellants.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Defendants1 appeal the district court’s grant of summary judgment that holds them
jointly and severally liable for millions of dollars of fraudulent transfers received from an
alleged Ponzi scheme. We reverse and remand, concluding that the applicable statute of
limitations may bar the receiver from recovering some of these transfers.
I
Factual Background
This is the latest in a series of cases that stem from the collapse of VesCor
Capital.2 The receiver appointed by the district court, Robert G. Wing, alleges that
VesCor was a Ponzi scheme. He has sought to recover as fraudulent transfers payments
VesCor made to investors.
Buchanan is one of those investors. Although the exact amounts are in dispute,
Wing asserts Buchanan invested nearly $21 million individually and through entities he
controlled. VesCor paid out more than $27 million to those same entities.
Procedural History
VesCor Capital Inc. filed for Chapter 11 bankruptcy in Utah on May 30, 2007.
Chapter 11 Voluntary Petition, In re VesCor Capital Inc., No. 07-22435 (Bankr. D. Utah
1
The full list of named defendants includes: Bernard C. Buchanan, an individual;
Bernardo’s Corporation, a Nevada corporation; Buchanan Family Trust; B&I Buchanan
Family Limited Partnership, a Nevada limited partnership; Buchanan Family Limited
Partnership, a Nevada limited partnership; Buck Investments, LLC, a Nevada limited
liability company; BAKI, LLC, a Nevada limited liability company.
2
See Wing v. Gillis, No. 12-4071, 2013 WL 2169321 (10th Cir. May 21, 2013)
(unpublished); Wing v. Dockstader, 482 F. App’x 361 (10th Cir. 2012) (unpublished);
SEC v. Vescor Capital Corp., 599 F.3d 1189 (10th Cir. 2010).
2
May 30, 2007). On July 6, 2007, the bankruptcy court ordered the appointment of a
trustee, “[f]inding that the debtor engaged in pre-petition fraud, dishonesty,
incompetence, gross mismanagement, a failure to keep adequate records, and a history of
transactions with companies affiliated with the debtor.” Order for the Appointment of a
Chapter 11 Trustee at 1-2, id., July 6, 2007.
Notwithstanding the bankruptcy proceedings, the Securities and Exchange
Commission in February 2008 filed a complaint against various VesCor
entities—including VesCor Capital Inc.—alleging that the companies had violated
securities laws. The complaint accused VesCor founder Val E. Southwick of “operat[ing]
a massive Ponzi scheme, paying existing noteholders with funds from new investors.”
Complaint at 2, SEC v. VesCor Capital Corp., No. 1:08-cv-00012-DB (D. Utah Feb. 6,
2008). In May 2008, the district court appointed Wing as a receiver.
Wing filed a complaint against Buchanan and the related entities in October 2008.
The complaint alleged a single cause of action for fraudulent transfer. The complaint
asserted that “[b]ecause the payments [to Buchanan] were made as part of a Ponzi
scheme, these transfers were, by definition, made to hinder, delay or defraud creditors
and/or investors of VesCor.” App. Vol. I at 6. Wing subsequently filed a motion for
summary judgment seeking the return of $6,290,886 in “fictitious” profits—that is, the
difference between the payments Buchanan and the related entities received, in aggregate,
and the amounts they invested. Id. at 17-18, 20. Wing also sought the return of $57,460
in referral fees that Buchanan received for recruiting new investors. Id. at 20.
3
The district court granted summary judgment in favor of Wing. The court awarded
a judgment of $4,581,047, plus prejudgment interest. The defendants appealed, but we
dismissed for lack of jurisdiction because the district court had not yet calculated
prejudgment interest. See App. Vol. VI at 935-36. The district court in June 2012
modified its judgment to eliminate prejudgment interest and entered a final judgment in
the amount of $4,581,047.
The defendants again appealed, raising four issues. First, defendants argue that the
district court had no legal basis for imposing joint and several liability for the fraudulent
transfers. Second, they argue that the statute of limitations bars the recovery of many of
the alleged fraudulent transfers. Third, defendants argue that they cannot be held liable
for transfers that they received before 2000—the earliest year the receiver’s expert will
attest that VesCor began to exhibit the characteristics of a Ponzi scheme.3 Finally,
defendants argue that genuine issues of material fact still exist regarding a number of
issues, such as if and when VesCor actually became a Ponzi scheme.
II
Standard of Review
We review a decision to grant summary judgment de novo, applying the same
standard as the district court. Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867,
3
Wing’s expert witness used 2000 as a starting date because “this is when the
availability and completeness of records and accounting information improved.” App.
Vol. I at 47 n.6.
4
872 (10th Cir. 2013). “The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “We draw all reasonable inferences from the
evidence in favor [of defendants] as the nonmoving party.” Taylor v. Roswell Indep. Sch.
Dist., 713 F.3d 25, 34 (10th Cir. 2013) (alteration and quotation omitted).
Statute of Limitations
Wing pursued the transfers VesCor made to the defendants by using the existence
of an alleged Ponzi scheme as evidence of actual fraud. See Merrill v. Abbott (In re
Indep. Clearing House Co.), 77 B.R. 843, 860 (D. Utah 1987) (“One can infer an intent to
defraud future undertakers from the mere fact that a debtor was running a Ponzi
scheme.”). Under Utah’s Uniform Fraudulent Transfer Act, a plaintiff seeking to recoup
transfers based on allegations of actual fraud must file his complaint “within four years
after the transfer was made or the obligation was incurred or, if later, within one year after
the transfer or obligation was or could reasonably have been discovered by the claimant.”
Utah Code Ann. § 25-6-10. At issue in this case is when the discovery period began to
run. The defendants argue that, at the latest, the one-year statute of limitations started
when the bankruptcy court appointed a trustee, which was ten months before Wing’s
appointment as receiver.
As an initial matter, we must decide whether the one-year statute of limitations
began to run when any objectively reasonable person could have discovered the
fraudulent transfers, or if the start of the discovery period was delayed until Southwick no
5
longer controlled the companies. We believe that Utah would adopt the “adverse
domination” theory so that the discovery period would not begin to run until the bad
actors controlling an entity were removed. See Wing v. Dockstader, 482 F. App’x 361,
364-65 (10th Cir. 2012) (unpublished); see also Resolution Trust Corp. v. Smith, 872 F.
Supp. 805, 814 n.4 (D. Or. 1995) (“[T]he doctrine of adverse domination, as a corollary
of the discovery rule, determines the time of accrual of a cause of action.”). The adverse
domination theory recognizes that “[c]ontrol of the [company] by culpable directors and
officers precludes the possibility of filing suit because these individuals can hardly be
expected to sue themselves or to initiate any action contrary to their own interests.”
See FDIC. v. Appling, 992 F.2d 1109, 1115 (10th Cir. 1993) (quotation omitted).
Southwick obviously had no incentive to file fraudulent transfer actions to claw back
money from investors—it would have required revealing his own fraud. But see Nasr v.
De Leon, 18 F. App’x 601, 605 n.4 (9th Cir. 2001) (unpublished) (“We hold that the
doctrine [of adverse domination] is wholly inapplicable in this case because it applies
only when a suit is brought against a self-dealing agent of an organization.”).
We cannot determine on the record before us, though, how to apply the discovery
rule to the transfers made in this case. For example, it may be reasonable to use the
court’s appointment of a bankruptcy trustee to oversee VesCor Capital Inc. as the start
date for the one-year statute of limitations.4 But not all the transfers that Buchanan
4
But we take no position on whether those alleged fraudulent transfers “could
(continued...)
6
received came from that entity. Although Buchanan asserts we should nonetheless hold
that the statute of limitations began to run with the trustee’s appointment because the
trustee could have brought all the VesCor entities under his control, we decline to do so in
the first instance.5 The statute of limitations raises significant factual questions that the
district court is better equipped to address and resolve. We therefore vacate the district
court’s order granting summary judgment and remand for the district court to determine
which of the alleged fraudulent transfers “could reasonably have been discovered” by the
bankruptcy trustee—thus triggering the one-year statute of limitations.
In vacating the district court’s order, we reject two arguments put forth by Wing.
Wing argues that the earlier appointment of the bankruptcy trustee has no bearing on the
statute of limitations because Wing, as the receiver, is the “claimant” referred to in the
statute. See Aplee. Br. at 4. We disagree. The receiver has no claims to bring on his
own behalf; instead, he brings them on behalf of the companies. Therefore, it is the
companies and the creditors that are the “claimants” that benefit from the discovery rule.
The receiver’s mere appointment cannot resurrect otherwise stale claims.
Moreover, Wing’s interpretation could leave the statute of limitations open to
manipulation. If the receiver, rather than the company, is the “claimant,” he could
4
(...continued)
reasonably have been discovered” the day the trustee was appointed.
5
Here, too, we take no position as to whether the trustee could have exercised the
control over the other entities sufficient to trigger the beginning of the statute of
limitations. We leave this question for the district court to resolve with the benefit of
additional—and more focused—briefing.
7
subvert the statute of limitations by placing one of the other VesCor entities into
bankruptcy. Under Wing’s interpretation, the clock on the one-year statute of limitations
would then restart because a new “claimant”—the trustee—was in place. We do not
believe the statute dictates such a result.
Wing also argues that the district court had discretion to disregard the statute of
limitations based on the equitable principles that govern a receivership. We decline to
affirm on this ground for two reasons. First, we do not know whether the district court
actually invoked equitable principles in rejecting the statute of limitations defense. The
district court did not address the statute of limitations in its written order—much less
explain its reasons for rejecting it.6
Second, we remain uncertain as to whether the district court would even have the
equitable discretion to reject this defense merely because a receivership is involved. To
be sure, the “district court has broad powers and wide discretion to determine relief in an
equity receivership.” SEC v. VesCor Capital Corp., 599 F.3d 1189, 1194 (10th Cir.
2010) (alteration and quotation omitted). But that relief relates to the distribution of the
receivership assets. Here, it is not clear that the district court is sitting in equity.7 This
6
In a hearing, the district court later suggested equitable concerns motivated its
decision to impose joint and several liability. App. Vol. VII at 999.
7
Like in bankruptcy, parties that file claims against a trustee or receiver open
themselves up to counterclaims as part of those proceedings. See Katchen v. Landy, 382
U.S. 323, 325 (1966); Alexander v. Hillman, 296 U.S. 222, 241 (1935) (“By presenting
their claims respondents subjected themselves to all the consequences that attach to an
appearance.”). Here, the receiver filed a separate complaint. Even when filed in the same
(continued...)
8
complaint was not brought as part of the receivership proceedings—it is a separate action
brought by the receiver on VesCor’s behalf. True, the case was assigned to the same
judge who is overseeing the receivership. But nothing inherent in the nature of an
equitable receivership even requires that the receiver bring lawsuits in the same district
court in which he was appointed.8 See 28 U.S.C. § 754 (“[A receiver] shall have capacity
to sue in any district without ancillary appointment.”); see also 12 Charles Alan Wright
et al., Federal Practice and Procedure § 2984 (2d ed., April 2013 update) (“[A] federal
receiver appointed under Rule 66 may sue in any district court without any need for the
appointment of an ancillary receiver, provided, of course, that the court has subject-matter
jurisdiction.” (footnote omitted)).
Wing cites Broadbent v. Advantage Software, Inc. for the proposition that “in
fashioning relief in an equity receivership, a district court has discretion to summarily
reject formalistic arguments”—such as statute of limitation defenses—“that would
7
(...continued)
district court in which the receiver was appointed, these proceedings need not necessarily
be heard by the same judge overseeing the receivership. Compare Donnell v. Keppers,
835 F. Supp. 2d 871 (S.D. Cal. 2011) (Chief Judge Gonzalez dismissing fraudulent
transfer complaint made by receiver) with SEC v. Learn Waterhouse, Inc., Order
Granting Successor Receiver’s and Professionals’ Tenth Interim Application for
Approval and Payment of Fees and Expenses, No. 3:03-cv-02037-W-DHB (S.D. Cal.
May 20, 2013) (Judge Whelan granting order in his capacity overseeing the receivership).
8
For example, in United States v. Franklin Nat’l Bank, 512 F.2d 245 (2d Cir.
1975), a federal receiver appointed in the Southern District of New York filed a lawsuit in
the Eastern District of New York. The Second Circuit noted that the receiver could do so
“without undergoing the bothersome procedure of preliminary ancillary appointment,”
although the court ultimately concluded that the receiver did not have the necessary
independent basis of jurisdiction for filing a complaint in the Eastern District.
9
otherwise be available in a traditional lawsuit.” 415 F. App’x 73, 78 (10th Cir. 2011)
(unpublished). But the cases involving a receiver that Broadbent cited to support this
statement undermine the case for applying the rule here. Each of the cases cited in
Broadbent in some way involved the distribution of assets already within the receiver’s
control.9 See Quilling v. Trade Partners, Inc., 572 F.3d 293, 298-99 (6th Cir. 2009)
(rejecting plaintiff’s attempt to separate his claim from the rest of the receivership estate);
United States v. Durham, 86 F.3d 70, 72 (5th Cir. 1996) (assessing challenge to
distribution plan); United States v. Vanguard Inv. Co., 6 F.3d 222, 227 (4th Cir. 1993)
(discussing considerations in deciding whether party was entitled to claim); SEC v.
Elliott, 953 F.2d 1560, 1566 (11th Cir. 1992) (assessing challenge to distribution plan). It
is not clear, however, that the receiver may simply invoke equitable principles when it
seeks to recover fraudulent transfers made to investors, even if the receiver could consider
those excess payments as a factor in designing its equitable distribution plan. Cf. Donell
v. Kowell, 533 F.3d 762, 772 (9th Cir. 2008) (noting in receiver’s fraudulent transfer
action that “[a]lthough all payments of fictitious profits are avoidable as fraudulent
transfers, the appropriate statute of limitations restricts the payments the Ponzi scheme
investor may be required to disgorge”).
9
Broadbent itself is, of course, an unpublished case without precedential value.
See 10th Cir. R. 32.1.
10
III
We therefore VACATE the district court’s order granting summary judgment in
favor of Wing and REMAND for further proceedings.
Entered for the Court
Mary Beck Briscoe
Chief Judge
11 | 01-03-2023 | 08-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1036991/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1486
_____________
UNITED STATES OF AMERICA
v.
TERRELL DAVIS,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-11-cr-00227-003
District Judge: The Honorable R. Barclay Surrick
_______________________
Argued March 21, 2013
Before: McKEE, Chief Judge, SMITH, and
GREENAWAY, JR., Circuit Judges
(Filed: August 9, 2013)
Andrew J. Schell [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Christopher G. Furlong [ARGUED]
22 East Third Street
Media, PA 19063
Counsel for Appellant–Davis
Mark E. Cedrone [ARGUED]
123 South Broad Street
Suite 810
Philadelphia, PA 19109
Counsel for Appellant–Blackshear1
1
We consolidated Terrell Davis’s appeal (No. 12-
1486) and Jamar Blackshear’s appeal (No. 12-1485) for
briefing and argument purposes. Blackshear’s counsel
addressed the suppression issue—which is common to
both defendants—and Davis’s counsel addressed the evi-
dentiary issues. The parties filed two consecutively num-
bered joint appendices (“J.A.”). Davis and Blackshear
2
________________
OPINION
________________
SMITH, Circuit Judge.
Police arrested Terrell Davis after finding him in a
Jeep with nearly a kilo of cocaine in the backseat. The
arrest led to a conviction for possession with intent to
distribute. As evidence that Davis recognized the cocaine
in the Jeep, the government proved at trial that he had
two prior convictions for possessing cocaine. Yet the
government never proved that the cocaine from his past
was similar in appearance, quantity, or form. We ac-
knowledge that some of our cases admitting prior crimi-
nal acts under Federal Rule of Evidence 404(b) have
been expansive. But our expansiveness is finite, and this
case crosses the line. We will vacate Davis’s conviction
and remand.
I
The events at issue took place on a wintry after-
also filed separate appendices to their opening briefs
(“D.A.” and “B.A.”).
3
noon over two years ago. Two Philadelphia police offi-
cers were patrolling near 5100 Market Street—roughly
four miles west of Independence Hall and the Liberty
Bell. This is a dangerous part of the city where drug deals
and robberies are commonplace. Officer Clifford Gilliam
parked his patrol car, and Officer Shawn Witherspoon
joined him on foot. On the opposite side of the street, the
officers spotted a black Jeep Grand Cherokee, later de-
termined to be from Enterprise Rent-A-Car. Inside were
two men, Terrell Davis and Jamar Blackshear. The Jeep’s
engine was running but nothing seemed amiss.
After a period of time, Davis and Blackshear be-
gan to act suspiciously. They reached toward each other
with “body motions [that] were consistent with the ex-
changing of narcotics in a narcotics transaction.” B.A. 8.2
The officers exited their patrol car and approached the
Jeep. Upon noticing the officers, Davis and Blackshear
had “expressions of shock on their faces,” B.A. 8, and
they tossed something into the backseat. They exited the
Jeep and quickly walked away—so quickly, in fact, that
Blackshear did not bother closing his door. Officer
Gilliam stopped Blackshear and patted him down to
2
The officers did not explain how the “body mo-
tions” were inconsistent with lawful behavior, such as
sharing a meal or exchanging gifts.
4
search for weapons. He instead found a wad of cash in
his pocket. In the meantime, Officer Witherspoon
stopped Davis and patted him down. He found a similar
amount of cash.
Everything indicated to the officers that this was a
drug deal: the suspicious movements, the hurried depar-
tures, the wads of cash, and the neighborhood itself.
Knowing that guns often accompany drug deals, the of-
ficers decided to search the Jeep for weapons—and to see
if there were any other occupants. Officer Witherspoon
tried to look through the tinted rear window, but it was
too dark. So he opened the already-ajar driver’s door and
saw a handgun wedged between the driver’s seat and the
middle console. At that point, the officers arrested Davis
and Blackshear and placed them in the patrol car.
The handgun was not the only item in the Jeep. Of-
ficer Witherspoon returned and spotted an opaque shop-
ping bag in the backseat. It was open and contained a
white substance. The officers requested a drug-detection
dog, which alerted to the presence of drugs. The officers
obtained a warrant and recovered ten cell phones, a pair
of binoculars, and two shopping bags with roughly 740
grams of cocaine distributed among nine smaller Ziploc
bags. The cocaine itself was compressed into the shape of
a brick and had a street value over $75,000.
Davis and Blackshear were charged with pos-
5
sessing a controlled substance with intent to distribute
under 21 U.S.C. § 841(a)(1) and with possessing a fire-
arm in furtherance of a drug-trafficking crime under 18
U.S.C. § 924(c). They were also charged with aiding and
abetting under 18 U.S.C. § 2.
Davis and Blackshear filed a motion to suppress all
evidence from the Jeep. They argued that because the
Jeep’s front driver’s side window was tinted, the officers
could not have seen the alleged reaching, gawking, and
tossing—and so they could not have had any cause for
suspicion in the first place. The District Court inspected
the Jeep and discovered that the window was in fact
tinted. The Court nonetheless denied the suppression
motion. It credited the testimony of the officers who said
that the window had been tint-free on the day of the ar-
rests eight months earlier. It also credited the testimony
of an Enterprise employee who said that neither Enter-
prise nor the manufacturer had tinted the windows and
that since the arrests over fifty people had rented the
Jeep.
The defendants then pursued separate paths.
Blackshear pled guilty but reserved the right to appeal the
denial of his suppression motion. He received two con-
secutive sixty-month sentences plus four years of super-
vised release. Davis opted for a jury trial. As the trial ap-
proached, the government asked permission to introduce
6
Davis’s two prior convictions for possessing cocaine.
The District Court consented, stating that the convictions
were admissible under Federal Rule of Evidence 404(b)
to show that Davis recognized the drugs in the Jeep. At
trial, the jury heard testimony from a range of witnesses,
including Officers Gilliam and Witherspoon; Keith Fes-
tus, the owner of a nearby cell-phone store; and a nar-
cotics expert. The jury ultimately found Davis guilty of
the drug crime but not guilty of the gun crime. He re-
ceived a seventy-eight-month sentence plus four years of
supervised release.
Davis raises four issues on appeal: the denial of his
suppression motion, the admission of his prior convic-
tions, and two other evidentiary issues. 3
II
Davis’s first argument is that the officers illegally
stopped him after he exited the Jeep. This would make
the cocaine inadmissible as the product of an illegal sei-
zure. “Where a motion to suppress has been denied, we
review the order for clear error as to the underlying facts,
but exercise plenary review as to its legality in the light
3
The District Court had jurisdiction under 18
U.S.C. § 3231, and we have final-decision jurisdiction
under 28 U.S.C. § 1291.
7
of the court’s properly found facts.” United States v.
Brownlee, 454 F.3d 131, 137 (3d Cir. 2006) (quotation
marks omitted). The District Court rejected Davis’s con-
stitutional argument, and with good reason. 4
The Fourth Amendment prohibits “unreasonable
searches and seizures.” U.S. Const. amend. IV. The gen-
eral rule is that a search or seizure is unreasonable if the
police lack either probable cause or a warrant—though
courts have created several exceptions to the warrant re-
quirement. See Kentucky v. King, 131 S. Ct. 1849, 1856
(2011) (noting that the ultimate touchstone is “reason-
ableness”). Over the past few decades, the Supreme
Court has created a broad exception to both require-
ments: “an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that crimi-
nal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).
This exception also allows officers to search the passen-
ger area of a vehicle without probable cause or a warrant
4
Davis has standing to challenge the search of the
Jeep—even though he was a mere passenger—because
his seizure gave the officers a reasonable suspicion to
search inside the Jeep. See United States v. Mosley, 454
F.3d 249, 253 (3d Cir. 2006).
8
if they conduct a lawful stop and reasonably believe that
the suspect is dangerous and has a weapon inside. See
Michigan v. Long, 463 U.S. 1032, 1049–50 (1983).
Davis’s constitutional argument turns on whether
the officers had a reasonable suspicion when they first
stopped him. And that turns on whether the front driver’s
side window was tinted at the time of the arrests—for if it
was, the officers could not have seen through it, and they
would have lacked any reason to suspect an illicit trans-
action. Though the District Court inspected the window
at the suppression hearing and saw that it was tinted, the
Court found that it was not tinted on the day of the arrests
eight months earlier.
That finding was not clearly erroneous. For one
thing, Officers Gilliam and Witherspoon both testified
that the front driver’s side window, unlike the rear win-
dow, was tint-free when they saw the Jeep. And an En-
terprise employee testified that neither Enterprise nor the
manufacturer had tinted the window and that over fifty
people had rented the car between the arrests and the
hearing. He also said that another renter could have been
responsible for the tint. “Anybody could have put it on.”
J.A. 325. This testimony supports the District Court’s
finding. To be sure, the police took a picture of the Jeep
on the day of the arrests, and the front and rear windows
appear to have the same tint. But the picture was taken at
9
night in low lighting. Davis also points to a witness who
testified at the suppression hearing that the window
“probably was a little tinted.” J.A. 385. But the District
Court found that his testimony was not “particularly
credible” for “a number of reasons.” B.A. 6 n.3.
The record thus contains no evidence that plainly
contradicts the officers’ testimony. And “when the dis-
trict court’s decision is based on testimony that is coher-
ent and plausible, not internally inconsistent and not
contradicted by external evidence, there can almost never
be a finding of clear error.” United States v. Igbonwa,
120 F.3d 437, 441 (3d Cir. 1997). As a result, the District
Court did not clearly err when it found that the window
was tint-free.
Nor did the District Court err in concluding that
the officers had a reasonable suspicion to stop Davis. The
officers observed odd behavior through the front win-
dow—an exchange, shocked expressions, and tossing
motions. Davis and Blackshear rapidly left the car and
began walking away, the latter failing to close the car
door. And the activity took place in a high-crime area.
The officers thus had a reasonable suspicion that a crime
might be afoot. See Terry, 392 U.S. at 30; Wardlow, 528
U.S. at 124 (recognizing presence in a “high crime area,”
“unprovoked flight,” and “nervous, evasive behavior” as
factors supporting a reasonable suspicion); see also
10
United States v. Bonner, 363 F.3d 213, 218 (3d Cir.
2004) (concluding that flight from a traffic stop creates a
reasonable suspicion).
The officers also had authority to search the Jeep.
The pat downs revealed large wads of cash, suggesting
that Davis and Blackshear were in the middle of a drug
deal. Because drug dealers often carry guns, the officers
had “a reasonable belief based on specific and articulable
facts” that Davis and Blackshear were dangerous and
might have weapons inside the Jeep. Long, 463 U.S. at
1049 (quotation marks omitted); see also United States v.
Arvizu, 534 U.S. 266, 273 (2002). That belief allowed the
officers to search the Jeep for weapons. During the
search, they found something else—cocaine in the
backseat—but they “clearly cannot be required to ignore
the contraband” discovered “while conducting a legiti-
mate Terry search of the interior of the automobile.”
Long, 463 U.S. at 1050. For these reasons, we will affirm
the denial of Davis’s suppression motion.
III
Davis’s second argument is that the District Court
erred in admitting his two prior convictions for pos-
sessing cocaine. We review that decision for an abuse of
discretion. United States v. Butch, 256 F.3d 171, 175 (3d
Cir. 2001) (noting that a decision is an abuse of discre-
tion if “clearly contrary to reason and not justified by the
11
evidence” (quotation marks omitted)). Though we have
held that some prior drug convictions are admissible un-
der Federal Rule of Evidence of 404(b), we have never
held that a possession conviction is admissible to show
knowledge or intent in a distribution trial. We decline to
do so today.
A
American courts have long excluded evidence of a
person’s prior bad acts. This tradition reflects a fear that
the jury will place too much weight on past crimes and
prior misdeeds. “[I]t is said to weigh too much with the
jury and to so overpersuade them as to prejudice one with
a bad general record and deny [the accused] a fair op-
portunity to defend against a particular charge.”
Michelson v. United States, 335 U.S. 469, 476 (1948);
see also H. Richard Uviller, Evidence of Character to
Prove Conduct: Illusion, Illogic, and Injustice in the
Courtroom, 130 U. Pa. L. Rev. 845, 884 (1982) (“[A]s
the special conditions of predictive value coalesce, the
potential for prejudice also rises.”). The risk is that jurors
will focus on evidence of prior acts, believing that some-
one with a criminal record cannot change and discount-
ing any evidence to the contrary.
Over the past two hundred years, the prior-acts
rule has changed much in form but little in function. In
the early days of the common law, courts used an inclu-
12
sionary approach: evidence of prior acts was presump-
tively admissible unless it was relevant only to the de-
fendant’s propensity to commit a crime. See Julius Stone,
The Rule of Exclusion of Similar Fact Evidence: Amer-
ica, 51 Harv. L. Rev. 988, 989–90 (1938). In the nine-
teenth century, the rule slowly became exclusionary:
such evidence was presumptively inadmissible unless the
proponent could show that it was relevant to one of sev-
eral specific purposes, such as motive or intent. See id. at
990–93 (concluding that American courts applied this
rule on the mistaken belief that the exclusionary ap-
proach was part of the English common law). But that
trend faded, and courts began to use different ap-
proaches—some inclusionary, some exclusionary. See
United States v. Long, 574 F.2d 761, 765–66 (3d Cir.
1978) (noting the division of authorities). The Federal
Rules of Evidence settled the matter in 1975, establishing
a uniform inclusionary approach. Id.; United States v.
Green, 617 F.3d 233, 244 (3d Cir. 2010). Yet this
change, “like the nineteenth century switch from the in-
clusionary to the exclusionary approach, did not give rise
to any significant change in the admissibility of such evi-
dence.” Kenneth J. Melilli, The Character Evidence Rule
Revisited, 1998 B.Y.U. L. Rev. 1547, 1560.
The modern approach is set forth in Federal Rule
of Evidence 404(b). “Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character
13
in order to show that on a particular occasion the person
acted in accordance with the character.” Fed. R. Evid.
404(b)(1). That principle seems strict, but prior-acts evi-
dence “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of acci-
dent.” Fed. R. Evid. 404(b)(2). Uncontroversial at the
time of adoption, Rule 404(b) has become the most cited
evidentiary rule on appeal. See Thomas J. Reed, Admit-
ting the Accused’s Criminal History: The Trouble with
Rule 404(b), 78 Temp. L. Rev. 201, 211 (2005).
The text of Rule 404(b) has led to a four-part test.
Prior-acts evidence is admissible only if it is (1) offered
for a proper purpose under Rule 404(b)(2); (2) relevant to
that purpose; (3) sufficiently probative under the Rule
403 balancing requirement; and (4) accompanied by a
limiting instruction, if requested. See Green, 617 F.3d at
249; see also Huddleston v. United States, 485 U.S. 681,
691–92 (1988) (discussing these four requirements). 5 All
5
Rule 404(b) excludes only extrinsic evidence, or
evidence of acts that are not the basis of the current pros-
ecution. It does not exclude intrinsic evidence, which ei-
ther “directly proves” or “facilitate[s]” the charged of-
fense. Green, 617 F.3d at 248–49 (quotation marks
omitted).
14
this really means is that such evidence must have a
nonpropensity purpose and satisfy the same relevancy
requirements as any other evidence.
And yet the relevancy requirements pose problems
of their own in this context. Indeed, the problems are in
many cases insurmountable. See Uviller, 130 U. Pa. L.
Rev. at 878 (“The test of ordinary relevance is often an
insuperable barrier.”). For starters, the prior-acts evi-
dence must be relevant to a proper purpose, and it must
be relevant in a way that avoids any propensity inference.
See United States v. Sampson, 980 F.2d 883, 887 (3d Cir.
1992). Consider a defendant who has been convicted of
manslaughter. In a later assault prosecution, the govern-
ment might want to use the conviction, perhaps to prove
intent. But that use is off limits if the only reason the
conviction is relevant to intent is the inference that be-
cause the defendant has committed manslaughter before,
he must have committed assault now. See id. at 887–88.
In addition, the conviction must be relevant based on
what the factfinder knows about the prior act. So even if
the defendant was convicted of intentional manslaughter,
the conviction will be relevant to intent only if the jury
knows the act was intentional and not reckless or negli-
gent.
That is why the use of prior-acts evidence requires
care from prosecutors and judges alike. In proffering
15
such evidence, the government must explain how it fits
into a chain of inferences—a chain that connects the evi-
dence to a proper purpose, no link of which is a forbid-
den propensity inference. Id. at 887. And then the “dis-
trict court, if it admits the evidence, must in the first in-
stance, rather than the appellate court in retrospect, artic-
ulate reasons why the evidence also goes to show some-
thing other than character.” Id. at 888. The reasoning
should be detailed and on the record; a mere recitation of
the purposes in Rule 404(b)(2) is insufficient.6 Unfortu-
nately, these requirements are “so often honored in the
breach” that they resonate “about as loudly as the prover-
bial tree that no one heard fall in the forest.” United
States v. Givan, 320 F.3d 452, 466 (3d Cir. 2003)
(McKee, J., dissenting).
B
With these principles in mind, we conclude that
Davis’s convictions for possessing cocaine were inad-
missible to prove knowledge or intent in his trial for pos-
6
We have affirmed even when a district court’s
analysis was somewhat flimsy—but only when the gov-
ernment had already established a valid chain of infer-
ences. See, e.g., United States v. Lopez, 340 F.3d 169,
173–74 (3d Cir. 2003).
16
sessing with intent to distribute. The District Court
abused its discretion by admitting this evidence, and we
will vacate Davis’s conviction.
Davis was twice convicted of possessing cocaine
under Pennsylvania law—once in 2007 and once in 2008.
The government filed a motion to introduce these con-
victions, advancing a pentad of purposes. J.A. 18 (“This
evidence is relevant to prove the defendant’s plan to,
knowledge of, and intent to distribute and/or possess co-
caine, and absence of mistake or accident.”). To its
credit, the able District Court admitted the convictions as
relevant to a single purpose: “Clearly, evidence of his
prior convictions for possession of crack cocaine makes
it more likely than not that Davis knew that the white
substance in the plastic bag on the back seat of the Jeep
was cocaine.” D.A. 18. The government now argues on
appeal that the evidence also was relevant to intent. See
Appellee Br. at 45.
Knowledge and intent are indeed proper purposes
under the first part of our Rule 404(b) test. And “[t]here
is no question that, given a proper purpose and reasoning,
drug convictions are admissible in a trial where the de-
fendant is charged with a drug offense.” Sampson, 980
F.2d at 887. We have held, for example, that evidence of
past distribution is relevant to prove knowledge of the
same or different drug in a later distribution trial. E.g.,
17
Givan, 320 F.3d at 461 (“The evidence that Givan had
been convicted of distribution of cocaine makes Givan’s
knowledge of the presence of the heroin more probable
than it would have been without the evidence.”); United
States v. Boone, 279 F.3d 163, 187 (3d Cir. 2002) (con-
sidering the defendant’s past cocaine-distribution acts as
evidence that he was not “an ignorant ‘go-fer’”); cf.
United States v. Vega, 285 F.3d 256, 263 (3d Cir. 2002)
(“[E]vidence of Vega’s participation in a prior drug con-
spiracy is probative of his knowledge of, and relationship
with a member of, a later drug conspiracy.”). And we
have held that evidence of past distribution is relevant to
prove intent to distribute in a later distribution trial. E.g.,
United States v. Lee, 573 F.3d 155, 166 (3d Cir. 2009)
(“Lee’s prior drug trafficking conviction was properly
admitted as evidence that Lee intended to distribute any
drugs in his possession.”); Givan, 320 F.3d at 461;
Boone, 279 F.3d at 187. We have even held that evidence
of past distribution is relevant to prove knowledge of a
different drug in a later possession trial. United States v.
Lopez, 340 F.3d 169, 174 (3d Cir. 2003). But we have
never held that a possession conviction is relevant to
prove either knowledge or intent in a distribution trial,
and rightly so.
1. Knowledge. Possession and distribution are dif-
ferent in ways that matter—something that both the Dis-
trict Court and the government failed to appreciate. As to
18
knowledge, one who possesses a drug might not recog-
nize the same drug when prepared for distribution. The
packaging or quantity might be different, and objects in
greater quantities often have an appearance or smell of
their own. Take water, which is transparent by the drop
but blue in the ocean, or powdered sugar, which is floury
on a donut but dense in a bag. In this case, the jury knew
only that Davis had been twice convicted of possessing
cocaine. See Appellee Br. at 19 n.3. The jury knew
nothing of the packaging or quantity that led to those
convictions, so it could not have known whether Davis’s
past helped him to recognize the nearly one kilogram of
cocaine in the Jeep.
Then there is the problem that the cocaine from
Davis’s past might have been in a different form. Co-
caine is consumable either as a powder or as one of sev-
eral bases, most often crack. See DePierre v. United
States, 131 S. Ct. 2225, 2228–29 (2011). Neither form
particularly resembles the other. As its name suggests,
powder cocaine is a powder—specifically, a salt—that
can be compressed or loose. See David A. Sklansky, Co-
caine, Race, and Equal Protection, 47 Stan. L. Rev.
1283, 1290–91 (1995). On the other hand, crack cocaine
is hard and waxy and often resembles small rocks or
crystals. See id. This distinction matters, and the jury did
not know which form Davis had possessed back in 2007
and 2008. For all the jury knew, the cocaine could have
19
been a dash of powder on a golden tray. It could have
been hidden in the lining of a suitcase. Or it could have
been crack cocaine—in crystal form, in liquid form,
rolled up in paper, or stuffed in a syringe. In any of those
instances, Davis’s past would not have helped him to
identify the compressed powder in the backseat.
The two prior convictions thus fail the second part
of our Rule 404(b) test, the relevancy requirement. See
Fed. R. Evid. 401 (explaining that evidence is relevant if
it is probative of a consequential fact). Based on the bare-
bones stipulation before it, the jury had no way of
knowing whether Davis’s experiences made him any
more likely to recognize the cocaine in the backseat. The
convictions simply were not probative of Davis’s
knowledge. See Givan, 320 F.3d at 466 (McKee, J., dis-
senting) (noting the difficulty when “there is absolutely
nothing on this record that would allow the jury to make
any meaningful or relevant comparison” between past
and present drugs). At best, the convictions had such
limited probative value that they fail the third part of our
test, the balancing requirement. See Fed. R. Evid. 403
(allowing courts to “exclude relevant evidence if its pro-
bative value is substantially outweighed by a danger of
. . . unfair prejudice.”). Either way, the convictions are
inadmissible to prove Davis’s knowledge.
The government nonetheless urges us to follow
20
Lopez and Givan. In Lopez, we held that the defendant’s
participation in a cocaine-distribution conspiracy was
admissible in a possession trial to prove knowledge of
heroin, a different drug altogether. Lopez, 340 F.3d at
174 (“[The conviction] was admissible for the purpose of
rebutting the defendant’s anticipated claim of innocent
association with, and lack of knowledge of, the heroin
found near his bunk.”). And in Givan, we held that the
defendant’s conviction for distributing cocaine was like-
wise admissible to prove knowledge and intent in a her-
oin-distribution trial. Givan, 320 F.3d at 461. These cases
are at the outer bounds of admissibility under Rule
404(b). See David Culberg, Note, The Accused’s Bad
Character: Theory and Practice, 84 Notre Dame L. Rev.
1343, 1358–59 & n.83 (2009) (criticizing Lopez and
Givan). At all events, the two cases are distinguishable
because the defendants had been convicted of dealing co-
caine, and drug dealers presumably have more
knowledge of drugs in general. By contrast, a possession
conviction does not imply a similar level of knowledge.
2. Intent. Nor does a possession conviction imply
an intent to distribute. Possession and distribution are
distinct acts—far more people use drugs than sell them—
and these acts have different purposes and risks. A prior
conviction for possessing drugs by no means suggests
that the defendant intends to distribute them in the future.
“Acts related to the personal use of a controlled sub-
21
stance are of a wholly different order than acts involving
the distribution of a controlled substance. One activity
involves the personal abuse of narcotics.” United States
v. Ono, 918 F.2d 1462, 1465 (9th Cir. 1990). The other
usually involves “the implementation of a commercial
activity for profit.” Id. As a result of these differences,
Davis’s convictions again fail the second part of our Rule
404(b) test.
In cases such as this, there is an ever-present dan-
ger that jurors will infer that the defendant’s character
made him more likely to sell the drugs in his possession.
But that is precisely the type of inference that Rule
404(b) forbids. Any other conclusion would run the risk
of unraveling the prior-acts rule:
[I]f the act of possessing or using marijuana
is to be admissible to prove intent to
transport and sell marijuana, or, to go even
further, to prove intent to transport and sell a
different drug, then there is no reason why
participation in any drug-related crime could
not be used to prove intent to engage in any
other drug-related crime, or why any rob-
bery could not be used to prove the requisite
intent with respect to any other robbery. A
rule allowing such evidence would eviscer-
22
ate almost entirely the character evidence
rule.
David P. Leonard, The New Wigmore. A Treatise on Evi-
dence: Evidence of Other Misconduct and Similar Events
§ 7.5.2(d); see also Charles Alan Wright & Kenneth W.
Graham, Jr., 22A Federal Practice and Procedure: Evi-
dence § 5242 (2d ed. 2013) (“[T]he routine use of [the
intent] exception [under Rule 404(b)] could easily de-
stroy the exclusionary rule.”).7
We join other circuits in declaring that a posses-
7
Some circuits require prior acts under Rule
404(b) to “meet a threshold level of similarity in order to
be admissible to prove intent” to commit the charged of-
fense. United States v. Long, 328 F.3d 655, 661 (D.C.
Cir. 2003); see also United States v. Foskey, 636 F.2d
517, 524 (D.C. Cir. 1980) (citing cases in Second, Fifth,
and Ninth Circuits for the idea that “[w]hen a prior
criminal act is relied upon to prove intent or knowledge,
similarity between the two events must be shown” (alter-
ation in original and quotation marks omitted)). We need
not adopt that requirement in our Circuit or decide
whether cocaine possession and distribution are suffi-
ciently similar. After all, a past intent to possess drugs
simply is not probative of a future intent to distribute.
23
sion conviction is inadmissible to prove intent to distrib-
ute. The Sixth Circuit, for example, held that “possession
of a small quantity of crack cocaine for personal use on
one occasion . . . sheds no light on whether [the defen-
dant] intended to distribute crack cocaine in his posses-
sion on another occasion nearly five months earlier.”
United States v. Haywood, 280 F.3d 715, 721 (6th Cir.
2002). The Seventh and Ninth Circuits have suggested
likewise. See United States v. Santini, 656 F.3d 1075,
1078 (9th Cir. 2011) (holding that prior convictions “for
simple possession” were “not similar to the importation
of marijuana and thus lack[] probative value”); Ono, 918
F.2d at 1465 (distinguishing between possession and dis-
tribution in dicta); United States v. Monzon, 869 F.2d
338, 344 (7th Cir. 1989) (concluding that evidence of the
defendant’s prior marijuana possession was not probative
of his intent to distribute cocaine); United States v.
Marques, 600 F.2d 742, 751 (9th Cir. 1979) (distin-
guishing between “personal use versus resale”); cf.
Enriquez v. United States, 314 F.2d 703, 717 (9th Cir.
1963) (concluding that a trial was unfair because the
court had admitted evidence of marijuana possession to
show intent to sell heroin). But see United States v.
Walsh, 231 F.3d 366, 370-71 (7th Cir. 2000) (allowing
the admission of a possession conviction in a distribution
trial because the conviction involved “distribution
amounts”). Other circuits have reached the opposite re-
sult, but we are not persuaded. See, e.g., United States v.
24
Butler, 102 F.3d 1191, 1196 (11th Cir. 1997); United
States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997);
United States v. Gadison, 8 F.3d 186, 192 (5th Cir.
1993). We conclude that Davis’s convictions should not
have been before the jury—not as evidence of
knowledge, not as evidence of intent.
And problems remain. The District Court also
committed two instruction-related errors. First, it did not
provide the requested limiting instruction at the time the
evidence was admitted; it did so only in the final jury
charge. Second, the Court concluded that the convictions
were admissible to prove knowledge, but the jury charge
included a wide list of purposes, allowing the jury to con-
sider the convictions as evidence of “state of mind,
knowledge, or intent,” as well as absence of “accident or
mistake.” J.A. 125–26; see Sampson, 980 F.2d at 889
(“By simply repeating the entire litany of permissible
theories under Rule 404(b), the judge’s instruction gave
the jury inadequate guidance.”). While these errors are
problematic, we would reverse even in their absence. No
instruction could have eliminated the infirmity at the
heart of this case: Davis’s convictions were inadmissible
for any purpose. 8
8
The government did not argue the issue of harm-
less error in its brief. Such silence usually means that
25
IV
Davis’s two remaining arguments are mere make-
weight. The first is that the District Court improperly
admitted a statement from the government’s expert wit-
ness. The second is that the Court improperly refused to
admit a witness’s prior statement. We review these deci-
sions for an abuse of discretion. See United States v.
Mathis, 264 F.3d 321, 335 (3d Cir. 2001) (applying the
abuse-of-discretion standard to a decision about the ad-
missibility of expert testimony); United States v. Frazier,
469 F.3d 85, 87 (3d Cir. 2006) (applying the same stand-
ard to a decision about the admissibility of a prior con-
harmless error is waived, but we may still consider the
issue depending on “the length and complexity of the
record, whether the harmlessness of the error or errors
found is certain or debatable, and whether a reversal will
result in protracted, costly, and ultimately futile pro-
ceedings in the district court.” United States v.
McLaughlin, 126 F.3d 130, 135 (3d Cir. 1997) (quoting
United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir.
1991)). Here, we refuse to do so because we see no rea-
son “that a reversal will [ ] lead to drawn out proceed-
ings,” and we do not “know with sufficient certainty that
the error was harmless.” United States v. Faulks, 201
F.3d 208, 213 (3d Cir. 2000).
26
sistent statement).
Davis argues that the government’s narcotics ex-
pert, Kenneth Bellis, violated Federal Rule of Evidence
704(b). This Rule bars experts from testifying that the
defendant had the necessary state of mind to commit a
crime—whether it be intent, knowledge, or something
else. 9 Yet the Rule does not bar experts from testifying
about the practices of those in the drug trade. United
States v. Watson, 260 F.3d 301, 308 (3d Cir. 2001). In
fact, such testimony is admissible even if it supports a
conclusion that the defendant had the necessary state of
mind. United States v. Bennett, 161 F.3d 171, 183 (3d
Cir. 1998). The only limitation is that the expert may not
draw the ultimate conclusion for the jury or testify in
such a way that the ultimate conclusion is inevitable. Id.
Davis objects to the following statement from
Bellis:
Government: One further question. If you
had that level of cocaine, if you
9
Rule 704(b) states, “[i]n a criminal case, an ex-
pert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition
that constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact alone.”
27
were a distributor, 740 grams—
if you were upper level distrib-
utor with 740 grams of cocaine,
is it common that you would
have persons present?
Davis’s attorney: Objection.
The Court: Objection overruled.
Government: Is it common that you would
have persons in the presence of
that cocaine who did not have a
connection to that cocaine?
Davis’s attorney: Objection.
The Court: Overruled.
Bellis: Not in my opinion, no.
J.A. 50–51. According to Davis, these questions elicited
Bellis’s opinion on whether Davis intended to distribute
the cocaine in the backseat.
The major flaw in this argument is that Bellis
merely spoke about common practices. He did not in any
way connect those practices to Davis. This means that
Bellis did not draw the ultimate conclusion for the jury,
28
nor did the conclusion inevitably follow from his testi-
mony. United States v. Price, 458 F.3d 202, 212 (3d Cir.
2006) (allowing an expert to say “that in his opinion . . .
drug dealers are very likely to carry guns, and drug buy-
ers almost never do” because the expert “said not a word
about [the defendant’s] mental state” but rather spoke
about “common practices”). Davis’s Rule 704(b) argu-
ment is meritless.
The same is true of his final argument. Davis as-
serts that the District Court improperly refused to admit a
prior statement from Festus. The statement called into
question the police officers’ accounts, but the Court con-
cluded that it was inadmissible hearsay. See Fed. R. Evid.
802. Federal Rule of Evidence 801(d)(1)(B) defines a
statement as nonhearsay if “[t]he declarant testifies and is
subject to cross-examination about a prior statement, and
the statement . . . is consistent with the declarant’s testi-
mony and is offered to rebut an express or implied charge
that the declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying.”
Festus’s various accounts are inconsistent at best.
A few months after the arrests, he told Blackshear’s at-
torney in a written statement that the patrol car pulled up
behind the Jeep with its lights flashing. Two months
later, Festus testified in the suppression hearing that the
lights were not flashing. At trial, he returned to his for-
29
mer statement that the lights were flashing. 10 The govern-
ment impeached Festus’s trial testimony by introducing
his inconsistent suppression testimony. On redirect, Da-
vis referred Festus to his written statement to Black-
shear’s attorney. See Fed. R. Evid. 612. Davis also asked
the District Court to admit Festus’s written statement as a
prior consistent statement. The Court denied that request.
As required by Rule 801(d)(1)(B), Festus was
subject to cross-examination and his prior statement—at
least the one he gave to Blackshear’s attorney—was con-
sistent with his trial testimony. But Davis runs into
problems with the requirement that the statement “rebut
an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence.”
Fed. R. Evid. 801(d)(1)(B). The government never so
much as suggested that Festus’s trial narrative was a re-
cent fabrication. It merely pointed out the inconsistency
between his suppression testimony and his trial testi-
mony. Inconsistency alone is not a charge of recent fabri-
cation; we also require a suggestion of “conscious altera-
tion.” Frazier, 469 F.3d at 89 (“The line between chal-
10
Whether the lights were flashing is not relevant
to the crimes or the Fourth Amendment analysis. Yet this
dispute had the potential to call into question the officers’
testimonies.
30
lenging credibility or memory and alleging conscious al-
teration can be drawn when a district court determines
whether the cross-examiner’s questions reasonably imply
intent on the part of the witness to fabricate.”); see also
Tome v. United States, 513 U.S. 150, 157 (1995). Absent
that suggestion, Davis’s final argument must fail.
***
The District Court correctly denied Davis’s sup-
pression motion. We cannot say the same about its deci-
sion to admit Davis’s possession convictions, which were
inadmissible to prove knowledge or intent in a trial for
possession with intent to distribute. We will vacate Da-
vis’s conviction and remand to the District Court.
31 | 01-03-2023 | 08-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1036992/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-2883
______
JAMES WASHINGTON
v.
SECRETARY PENNSYLVANIA
DEPARTMENT OF CORRECTIONS;
THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA,
Appellants
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-10-cv-02869)
District Judge: Honorable Eduardo C. Robreno
______
Argued May 15, 2013
Before: SMITH, FISHER and CHAGARES, Circuit Judges.
(Filed: August 9, 2013)
Susan E. Affronti, Esq. (ARGUED)
Thomas W. Dolgenos, Esq.
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellants
Amy Coleman (ARGUED)
Adrian N. Roe, Esq.
Charles P. Sapienza, III (ARGUED)
Duquesne University School of Law
632 Fisher Hall
600 Forbes Avenue
Pittsburgh, PA 15282
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
This appeal arises out of James Washington’s
collateral attack on his convictions for second-degree murder,
robbery, and criminal conspiracy related to his participation
as the driver in a February 2000 store robbery that resulted in
the deaths of two store employees. Washington contends that
the introduction into evidence of a jointly-tried nontestifying
coconspirator’s confession violated his rights under the
Confrontation Clause when the redacted confession replaced
2
Washington’s name with “someone I know” or “the driver.”
A jury found Washington guilty, and Washington pursued all
available direct and collateral state appeals before petitioning
the District Court for a writ of habeas corpus. The District
Court conditionally granted the writ. Washington v. Beard,
867 F. Supp. 2d 701, 703 (E.D. Pa. 2012). Because no
reasonable reading of the Supreme Court’s Confrontation
Clause jurisprudence would permit the introduction of the
redacted confession allowed in this case, we will affirm.
I.
A.
At trial, the Commonwealth introduced evidence
establishing that James Taylor, one of Washington’s friends,
was hired as a stockperson at a Dollar Express Store in
Philadelphia in January 2000. Taylor observed that manager
Gertrude Ritterson routinely arrived at the store at 5:00 a.m.
and she would regularly smoke a cigarette on the back of the
loading dock with the garage door open half-way before
attending to her duties. Taylor also noted that the store
contained a safe in the office and employed no guards, video
cameras, or other security measures – making it an “easy
target” for his friends Washington, Willie Johnson, and
Romont Waddy to rob.
On the night of February 23, 2000, the four men met at
Waddy’s home to plan the robbery, which they intended to
carry out the next day. Johnson carried the gun they planned
to use. In the morning, Washington drove the group to the
store. Washington and Taylor remained in the car while
3
Waddy and Johnson entered, carrying tools needed to open a
safe. Waddy and Johnson confronted Ritterson and another
employee. Johnson then fired bullets through the heads of
Ritterson and the other employee.
Washington heard the shots and ran into the store,
where he helped remove $750 from the safe. Waddy filled a
trash bag with items from the store to sell. Washington,
Johnson, and Waddy then returned to the car, where Taylor
asked why they had shot the employees. Johnson complained
about the small amount of money collected from the store and
handed $50 to Waddy and $200 to Washington. Taylor did
not take any of the money.
Shortly after the incident, Taylor learned that the
police had designated him a person of interest. He
surrendered to police and gave a statement. He also agreed to
testify against the other men in exchange for a sentence of 55
to 110 years’ imprisonment. Additionally, Waddy gave a
statement to police on March 5, 2000.
B.
Johnson, Waddy, and Washington were tried together
before a jury in the Court of Common Pleas of Philadelphia
County in October and November 2001. Taylor’s testimony
at trial on October 25, 2001 identified all of the
coconspirators and discussed in detail their roles in the crime.
Taylor clearly and repeatedly identified Washington as the
driver of the car:
4
“Q: What was Jiz [a nickname for Washington]
or James Washington to do?
A: Just to drive.
Q: Why was that?
A: Because he was the only one with a car.
...
A: Willie sat in the front, I sat in back of Willie,
Romont sat back of Jiz, Jiz was the driver.”
App. at 179, 181. On cross-examination, Washington’s
counsel pointed out significant inconsistencies in Taylor’s
story, as well as Taylor’s history of drug and alcohol abuse
and admittedly heavy impairment from drugs at the time of
the incident.
On October 29, the jury heard a redacted version of
Waddy’s confession, relayed to them as part of the testimony
of Detective John Cummings. Over Washington’s objection1
that the redaction transparently referred to Washington, the
1
After Taylor’s testimony and before the reading of
Waddy’s confession, Washington’s trial counsel stated in an
objection to the redaction that Washington was “the only
person that’s been identified as the driver. I think it’s
tantamount to using his name.” App. at 238.
5
trial judge gave a limiting instruction2 and then allowed the
detective read the redacted statement in response to questions
from the prosecutor.3 The jury never saw the original or the
redacted copy. Cummings’s reading deleted all the names
and nicknames of the defendants, which were replaced with
2
The judge told the jury, “Ladies and gentlemen, the
statement of Romont Waddy which was given to Detective
Cummings on March 5th may soon be read to you. I caution
you that you may consider the statement given by Mr. Waddy
as evidence relating only to his guilt or non-guilt and not as
evidence concerning the guilt or non-guilt of any other
defendant.” App. at 266.
3
Officer Cummings’s account of Waddy’s questioning
by police included:
“Question: How long have you know the driver of the
car you were in.
Answer: For a long time, like ten years.
Question: I’m showing you a photo. Do you recognize
this person.
Answer: Yes, that’s the driver.
...
[Here, the testifying officer indicates that Waddy
signed a photo of the driver.]
...
Question: Where does the driver live.
Answer: He was staying with his mom in Hill Creek.”
App. at 270 (errors in the original).
6
words such as “someone I know,” “the other guy,” “the
driver,” “the guy who went into the store,” and “the shooter.”
The statement contained no reference to Washington by name
or nickname.
Washington argued before the jury that he could not be
guilty because he had an alibi for the time of the robbery,
which he contended he had spent visiting his father in the
hospital. Conflicting evidence from the paramedics who had
retrieved Washington’s father at home to transport him to the
hospital, neighbors, and other family members who had
visited the hospital cast some doubt on the veracity of
Washington’s claims.
The jury found Washington guilty. The trial judge
sentenced Washington to two consecutive life terms of
imprisonment for the murders and a concurrent term of ten to
twenty years’ imprisonment for conspiracy. For sentencing
purposes, the robbery conviction merged.
The Superior Court of Pennsylvania affirmed
Washington’s conviction on direct appeal, and the Supreme
Court of Pennsylvania denied Washington’s direct appeal.
Commonwealth v. Washington, 832 A.2d 545 (Pa. Super. Ct.
2003), cert. denied, 847 A.2d 1285 (Pa. 2004). In January
2005, Washington challenged his convictions under the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.
Cons. Stat. Ann. § 9541, et seq., alleging ineffective
assistance of counsel and various violations of his
constitutional rights. The PCRA court denied his petition,
and the Superior Court affirmed that decision.
Commonwealth v. Washington, 981 A.2d 938 (Pa. Super. Ct.
7
2009). The Pennsylvania Supreme Court denied
Washington’s subsequent appeal. Commonwealth v.
Washington, 995 A.2d 353 (Pa. 2010).
On June 14, 2010, Washington filed a federal habeas
petition in the Eastern District of Pennsylvania, which was
initially reviewed by Magistrate Judge Strawbridge.
Washington, 867 F. Supp. 2d at 703. Judge Strawbridge
recommended the denial of the petition on the merits. Before
the District Court, Washington raised eleven objections to the
Magistrate’s Report and Recommendation. Id. at 705. The
District Court sustained objection ten regarding Washington’s
rights under the Confrontation Clause and granted a
conditional writ of habeas corpus. Id. at 709. The
government appeals from that decision.
II.
The District Court had jurisdiction over Washington’s
collateral attack under 28 U.S.C. § 2254. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and
§ 2253(a). Section 2254, as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
No. 104-132, 110 Stat. 1214, gives substantial deference to
state trial courts and limits habeas relief to those cases where
the state court’s conclusion was contrary to clearly
established federal law as embodied in the holdings of the
Supreme Court or was an unreasonable application of that
law. See Williams v. Taylor, 529 U.S. 362, 399, 411 (2000)
(noting clearly established federal law is made up of the
Supreme Court’s holdings, but not its dicta). We conduct
plenary review of the District Court’s legal conclusion that
8
the state court decision was an unreasonable application of
federal law. See Lambert v. Blackwell, 387 F.3d 210, 231 (3d
Cir. 2004). We presume that the factual findings of the
Pennsylvania Superior Court are correct. See Vazquez v.
Wilson, 550 F.3d 270, 276 (3d Cir. 2008). We perform an
independent analysis as to the harm caused by the error rather
than deferring to the state court’s conclusion. Bond v. Beard,
539 F.3d 256, 276 (3d Cir. 2008).
III.
Washington asked the District Court to set aside his
convictions because evidence introduced at trial violated his
Sixth Amendment right to confront his accuser. We conclude
that the District Court properly granted Washington habeas
relief because (A) the Pennsylvania Superior Court
unreasonably applied clearly established federal law when it
concluded that the trial court had properly admitted into
evidence redacted nontestifying coconspirator testimony and
(B) that error substantially and injuriously affected
Washington’s case.
A.
AEDPA allows federal courts to grant relief from state
court decisions that unreasonably apply federal law.
Williams, 529 U.S. at 407. If “‘fair-minded jurists could
disagree’ on the correctness of the state court’s decision,”
federal habeas relief is precluded. Harrington v. Richter, 131
S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)); see also Knowles v. Mirzayance, 556
U.S. 111, 122 (2009) (quoting 28 U.S.C. § 2254(d)(1)) (“[I]t
9
is not ‘an unreasonable application of’ ‘clearly established
Federal law’ for a state court to decline to apply a specific
legal rule that has not been squarely established by [the
Supreme] Court.”). When a rule is general rather than
specific, courts have “more leeway” in making case-by-case
determinations. Yarborough, 541 U.S. at 664. The District
Court concluded that the Pennsylvania Superior Court had
unreasonably applied clearly established federal law by
drawing a bright-line rule that excluded from Confrontation
Clause protection any confession that only becomes
incriminating when linked to other evidence introduced at
trial. Washington, 867 F. Supp. 2d at 707. We agree.
On the use of a nontestifying codefendant’s statement
incriminating another defendant, Bruton v. United States, 391
U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987),
and Gray v. Maryland, 523 U.S. 185 (1998), lay out the
federal law as articulated by the Supreme Court. Bruton held
that a criminal defendant is deprived of his right to
confrontation when a nontestifying codefendant’s confession
names him, regardless of whether the judge has given the jury
a limiting instruction. 391 U.S. at 126. Although juries are
generally presumed able to follow instructions about the
applicability of the evidence, the Court in Bruton determined
that a nontestifying codefendants’ confession that names the
defendant poses too great a risk that the jury will use the
evidence to determine the guilt or non-guilt of someone other
than the confessor. Id. at 135.
In Richardson, the Court applied Bruton to a
codefendant’s confession that had been redacted to eliminate
any indication that anyone other than the speaker had
10
participated in the crime. 481 U.S. at 203. The Court held
that the introduction of a redacted nontestifying codefendant
statement that eliminates “not only the defendant’s name, but
any reference to his or her existence” does not violate the
Confrontation Clause because jurors are more likely to be
able to follow a limiting instruction when “the confession was
not incriminating on its face, and became so only when linked
with evidence introduced later at trial” than they would be in
cases like Bruton where the codefendant is facially implicated
in the confession. Id. at 208.
In Gray, the Court considered a redaction that replaced
the defendant’s name with a deletion mark and held that
obvious deletions that alert the jury to a redaction violate the
Confrontation Clause because they encourage jurors to
speculate about the reference and are accusatory in a way
similar enough to the direct implication in Bruton to merit the
same result. See 523 U.S. at 195 (quoting Richardson, 481
U.S. at 209) (“[T]he redacted confession with the blank
prominent on its face, in Richardson’s words, ‘facially
incriminat[es]’ the codefendant. Like the confession in
Bruton itself, the accusation that the redacted confession
makes ‘is more vivid than inferential incrimination, and hence
more difficult to thrust out of mind.’”).
The Superior Court opinion demonstrates that it
recognized and considered the correct holdings of the
Supreme Court in reaching its decision. App. at 72-73.
Nonetheless, we conclude that the Superior Court
unreasonably applied those holdings to the facts of
Washington’s case because it ignored Gray’s admonition to
look to the kind rather than the mere fact of inference. As we
11
will explain, the result in this case – where the trial court
allowed a redaction that was plainly transparent at the time
the testimony was given – demonstrates the absurdity of a
bright-line interpretation of Richardson.
In its brief discussion of the issue, the Superior Court
held in this case that its previous precedent fully foreclosed
Washington’s claim that replacing his name with “someone I
know” or “the driver” violated his rights under the
Confrontation Clause. See App. at 72-73 (citing
Commonwealth v. Travers, 768 A.2d 845 (Pa. 2001)). In
Travers, the Pennsylvania Supreme Court held that a
redaction referring to the codefendant as “the other man” did
not offend the Confrontation Clause because it was not
“powerfully incriminating on its face.” 768 A.2d at 851.
According to the Travers court, Richardson limited the
Bruton rule and “expressly rejected the theory of contextual
implication, recognizing the important distinction between
co-defendant confessions that expressly incriminate the
defendant and those that become incriminating only when
linked to other evidence properly introduced at trial.”
Travers, 768 A.2d at 848. Consequently, the Superior Court
explained that Travers disposed of Washington’s claim
because Washington’s “identity was indeed only clarified by
Taylor’s testimony, a curative instruction was given, and the
redaction of Waddy’s statement was proper in and of itself.”
App. at 73.
The Commonwealth urges us to treat this case as one
about the propriety of redactions that employ neutral
pronouns and phrases, a method about which we and other
Courts of Appeals have noted that the Supreme Court has
12
expressed no opinion. Vazquez, 550 F.3d at 279; see also,
e.g., Spears v. Mullin, 343 F.3d 1215, 1232 (10th Cir. 2003)
(noting lack of Supreme Court guidance directly on point and
upholding redaction wherein an officer paraphrased the
codefendant statement, replacing names with “others” or
“they”); McGhee v. Yukins, 229 F.3d 506, 512 (6th Cir.
2000); United States v. Edwards, 159 F.3d 1117, 1125 (8th
Cir. 1998).
To that end, the Commonwealth argues that given the
lack of explicit instruction from the Supreme Court, the
differing decisions among the lower courts demonstrates that
the Superior Court applied Bruton and its progeny within the
range of reasonable opinions. See Harrington, 131 S. Ct. at
786. As evidence of the wide range of acceptable options, the
government points to other Courts of Appeals that have
interpreted Gray as permitting redactions (accompanied by a
limiting instruction) that employ neutral pronouns and
phrases. See, e.g., United States v. Lighty, 616 F.3d 321, 376-
79 (4th Cir. 2010) (approving redaction that replaced names
with “three other people” because the confession itself gave
no way to identify them); United States v. Vasilakos, 508 F.3d
401, 407 (6th Cir. 2007) (approving redaction with “another
person” or “another individual”); United States v. Logan, 210
F.3d 820, 821-22 (8th Cir. 2000) (considering redaction
without regard to other evidence and approving neutral-
pronoun redactions). The Commonwealth also notes that
Gray cited approvingly to Sixth and Second Circuit opinions
that had approved redactions that replaced a codefendants
name with “someone” and “all three of us.” See United
States v. Garcia, 836 F.2d 385 (8th Cir. 1987); Clark v.
13
Maggio, 737 F.2d 471 (5th Cir. 1984). Furthermore, the
Commonwealth argues that the redaction of Waddy’s
statement is acceptable because Gray explicitly stated that
“me and a few other guys” would be acceptable and, although
the District Court expressed concern that the redaction made
reference to Washington’s role in the conspiracy, nothing in
Supreme Court precedent specifically bans this practice.
Other courts have approved similar alterations that make
reference to roles. See, e.g., United States v. Green, 648 F.3d
569, 575-76 (7th Cir. 2011) (approving the replacement of
codefendant’s name with “the strawbuyer,” but noting that the
redaction came “very close to the Bruton line”); United States
v. Yousef, 327 F.3d 56, 149 (2d Cir. 2003) (approving the
replacement of codefendant’s name with “my neighbor”).
We have no doubt that redactions replacing names
with neutral pronouns and phrases will often fit comfortably
within the range of acceptable approaches outlined by Bruton,
Richardson, and Gray. This is not one of those cases. The
Superior Court applied a blanket rule, derived from Travers,
that any redaction that would require a juror to consider an
additional piece of information outside the confession in
order to identify the coconspirator being referred to
automatically falls inside the realm of Richardson. This is
not a reasonable view of the law.
In Richardson, the Supreme Court distinguished the
redacted confession from the unredacted confession that had
been used in Bruton, because the Bruton confession “had
expressly implicated” the defendant and “at the time that
confession was introduced there was not the slightest doubt
that it would prove ‘powerfully incriminating.’” 481 U.S. at
14
208 (quoting Bruton, 391 U.S. at 135). The Richardson
confession, on the other hand, “was not incriminating on its
face, and became so only when linked with evidence
introduced later at trial.” Id. The Richardson Court reasoned
that:
“w]here the necessity of such linkage is
involved, it is a less valid generalization that the
jury will not likely obey the instruction to
disregard the evidence. Specific testimony that
‘the defendant helped me commit the crime’ is
more vivid than inferential incrimination, and
hence more difficult to thrust out of mind.
Moreover, with regard to such an explicit
statement the only issue is, plain and simply,
whether the jury can possibly be expected to
forget it in assessing the defendant’s guilt;
whereas with regard to inferential incrimination
the judge’s instruction may well be successful
in dissuading the jury from entering onto the
path of inference in the first place, so that there
is no incrimination to forget. In short, while it
may not always be simple for the members of a
jury to obey the instruction that they disregard
an incriminating inference, there does not exist
the overwhelming probability of their inability
to do so that is the foundation of Bruton’s
exception to the general rule.
Even more significantly, evidence requiring
linkage differs from evidence incriminating on
its face in the practical effects which application
15
of the Bruton exception would produce. If
limited to facially incriminating confessions,
Bruton can be complied with by redaction—a
possibility suggested in that opinion itself. If
extended to confessions incriminating by
connection, not only is that not possible, but it
is not even possible to predict the admissibility
of a confession in advance of trial. The
‘contextual implication’ doctrine articulated by
the Court of Appeals would presumably require
the trial judge to assess at the end of each trial
whether, in light of all of the evidence, a
nontestifying codefendant’s confession has been
so ‘powerfully incriminating’ that a new,
separate trial is required for the defendant. This
obviously lends itself to manipulation by the
defense—and even without manipulation will
result in numerous mistrials and appeals.”
Id. at 208-09 (internal citations omitted).
The Gray Court recognized, however, that this
reasoning could not apply equally to all inferences. In
distinguishing the case from Richardson, the Court examined
the effect of redactions that incriminate inferentially:
“But inference pure and simple cannot make the
critical difference, for if it did, then Richardson
would also place outside Bruton’s scope
confessions that use shortened first names,
nicknames, descriptions as unique as the ‘red-
haired, bearded, one-eyed man-with-a-limp,’
16
and perhaps even full names of defendants who
are always known by a nickname. This Court
has assumed, however, that nicknames and
specific descriptions fall inside, not outside,
Bruton’s protection. . . . Richardson must
depend in significant part upon the kind of, not
the simple fact of, inference. Richardson’s
inferences involved statements that did not refer
directly to the defendant himself and which
became incriminating ‘only when linked with
evidence introduced later at trial.’ The
inferences at issue here involve statements that,
despite redaction, obviously refer directly to
someone, often obviously the defendant, and
which involve inferences that a jury ordinarily
could make immediately, even were the
confession the very first item introduced at
trial.”
523 U.S. at 195-96 (citations omitted).4
4
We reject the assertion that this reasoning represents
non-binding dicta that cannot constitute clearly established
federal law. See Williams v. Taylor, 529 U.S. 362, 399, 411
(2000) (clearly established federal law includes the Supreme
Court’s holdings, but not its dicta); see also Kastigar v.
United States, 406 U.S. 441, 454-55 (1972) (“[B]road
language” that was “unnecessary to the Court’s decision . . .
cannot be considered binding authority.”). Distinguishing
Richardson was necessary and central to the result in Gray v.
Maryland, 523 U.S. 185, 195-96 (1998).
17
The Commonwealth urges us to read Gray narrowly
and avoid looking at “all the evidence admitted at trial”
because Gray was simply disapproving the kind of inferences
required to link Kevin Gray to the word “deleted.” Here, the
Commonwealth misstates the argument against it. In fact, we
need not look at “all the evidence,” which would require trial
courts to somehow look ahead through future testimony in
order to make a Bruton ruling. The question here turns on
what information was available to the trial court before it
overruled Washington’s objection, instructed the jury, and
allowed Detective Cummings to read Waddy’s confession.
Taylor had already testified four days earlier, naming
Washington as “the driver.”5 It should have been apparent “at
the time that confession was introduced there was not the
slightest doubt that it would prove powerfully incriminating.”
Richardson, 481 U.S. at 208. The problems with Waddy’s
confession were immediately obvious before the jury heard
the statement and did not become so only “when linked with
evidence introduced later at trial.” Id. (emphasis added).
The problem with Waddy’s confession becomes more
apparent upon consideration of how the inferences in these
cases actually work. In Gray, the Court guarded against the
negative conclusions jurors might draw from a blank or
deletion marking, which would alert them to the fact that a
redaction had occurred and raise suspicions that the change
5
Taylor testified on October 25, and Detective
Cummings read Waddy’s statement to the jury on October 29.
During the period between those days, the jury heard
testimony for approximately three hours on October 26.
18
had been made to protect someone: the codefendant. But the
Court also identified other kinds of inferences that would
allow a jury to so easily connect a redaction with a particular
person that the redaction would be tantamount to using the
codefendant’s name in violation of Bruton. For example, the
Court specifically noted that physical descriptions would
violate Bruton; after all, the jury would need to only look to
counsel table to find someone who matched. But appearance,
as the Gray dissent points out, is not “evidence” that would
be included in Richardson’s admonition against considering
“evidence introduced later at trial.” See 523 U.S. at 201-02
(Scalia, J., dissenting) (“Since the defendant’s appearance at
counsel table is not evidence, the description ‘red-haired,
bearded, one-eyed man-with-a-limp,’ would be facially
incriminating – unless, of course, the defendant had dyed his
hair black and shaved his beard before trial, and the
prosecution introduced evidence concerning his former
appearance.”).
Nicknames, which the Court has assumed fall within
the protection of Bruton, provide perhaps the best analogy to
Washington’s case. The connection between a defendant and
a nickname (other than a simple shortening of a given name)
requires extrinsic evidence to incriminate. Without that
additional piece of information, a confession containing a
nickname would not be incriminating. And, unlike physical
appearance, the link often would be provided by “evidence.”
In this case, for example, Taylor testified both that
Washington was “the driver” and that he went by the
nickname “Jiz.” Clearly, Supreme Court precedent would not
permit a redaction that replaced Washington’s name in
19
Waddy’s confession with “Jiz.” Given that “the Driver” and
“Jiz” both incriminate Washington because of pieces of
information that earlier testimony had made readily available
to the judge and jury before Waddy’s confession was
admitted, there does not seem to be a principled distinction
between a redaction that identifies Washington as “the driver”
and one that refers to him as “Jiz.”
The inference connecting the defendant and confession
in Richardson worked differently. There, the confession gave
no indication that Marsh was in the car as the coconspirators
discussed the murder. 481 U.S. at 203-04. Later at trial,
Marsh testified that she was in the car but did not hear the
discussion. Id. Considering all the evidence, the jury could
have concluded that Marsh knew in advance about the
murder, since she had placed herself in the car, but that would
require the jury to come to a number of conclusions from the
facts – for example, that Marsh could not have been where
she said she was and not have heard the conversation
described in the confession.
We recognize that the Gray Court described the kind
of inferences covered by Bruton as those that “a jury
ordinarily could make immediately, even were the confession
the very first item introduced at trial.” 523 U.S. at 196
(emphasis added). Clearly, limiting the relevant inferences in
this manner takes Taylor’s testimony out of consideration.
But this statement is best understood in light of the sentences
that immediately follow, noting that such a limitation
addresses the policy concerns raised in Richardson that
allowing consideration of all the evidence would make it
impossible for courts to know before a trial’s conclusion
20
which redactions would be acceptable – effectively requiring
the severance of all trials where this kind of confession would
be introduced. That consideration is not relevant here, given
that the trial judge had the needed information and could have
ordered changes to the redaction based on Taylor’s testimony
before the jury heard Waddy’s confession.
In sum, no reasonable reading of Bruton, Richardson,
and Gray can tolerate a redaction that the trial judge knew at
the time of introduction would be transparent to the jurors.
Taylor’s testimony clearly and explicitly identified
Washington as the driver. Replacing Washington’s name
with “the driver” was, as counsel stated, tantamount to using
Washington’s name and cannot be allowed to stand, even in
light of AEDPA’s deferential standard of review.
While we recognize that only the holdings of the
Supreme Court bind us in this posture, we note that this
decision comports with our other recent opinions explaining
the reasonable range of application of the Supreme Court’s
Bruton jurisprudence. In Vazquez, the redacted confession
implicated two others in the crime, one of whom the
confessor referred to as “[his] boy” and “the other guy.” 550
F.3d at 274. Although we acknowledged that these terms
might usually satisfy Bruton, we criticized the Pennsylvania
court’s categorical approval of neutral-pronoun redactions
and held that “using a bright line is ‘an unreasonable
application of clearly established Federal law under the
decisions of the Supreme Court of the United States’ given
the necessity of determining how strongly a codefendant’s
statement implicates the defendant and the likelihood that it
would be disregarded by the jury.” Pabon v. Mahanoy, 654
21
F.3d 385, 395 (3d Cir. 2011) (describing Vazquez and
granting certificate of appealability on Bruton question).6
Since the briefing began in this case, we have reaffirmed in
Eley v. Erickson our view that the application of a bright-line
rule to neutral redactions unreasonably applies federal law.
See 712 F.3d 837, 861 (3d Cir. 2013). Although AEDPA
demands that we look to Supreme Court precedent and not
our own holdings in answering the Confrontation Clause
question presented here, the reasoning we explained in
Vazquez and Eley about the shorthand approach the
6
The Commonwealth argues that Vazquez, to the
extent that it explains how we have viewed Supreme Court
precedent in the past, can be distinguished on its facts. In
Vazquez, the trial court allowed the prosecutor to emphasize
before the jury that the confessor had in fact identified the
other men involved to police, making the facts that he had
named names and that his statement had been redacted
transparent in violation of Gray. Vazquez v. Wilson, 550 F.3d
270, 274-75 (3d Cir. 2008). Additionally, the prosecutor and
a witness broke redaction during the trial. Id. The jury
clearly drew inferences from the evidence and events at trial,
as questions from the jury during deliberations revealed that
they believed the statement referred to Vazquez as the
shooter. Nonetheless, the Commonwealth misrepresents
Vazquez’s holding. The Vazquez court specifically
disclaimed that these facts had impacted its holding, noting
that its decision was based on the record before the trial judge
at the time the redacted confession was admitted and not on
events that occurred later at trial. Id. at 277.
22
Pennsylvania Superior Court has taken in following Travers
has equal application to this case. Clearly, neutral pronoun
and phrase redactions will often meet the standards laid out in
Bruton, Richardson, and Gray. But Washington’s case
presents some of the unusual circumstances where a facially
neutral redaction cannot reasonably be viewed as satisfying
the Confrontation Clause – illustrating how the bright-line
rule adopted by the Superior Court proves inadequate to
protect codefendants’ rights. The course taken by the trial
court posed an obvious and serious risk that the jury would,
contrary to the instruction it received, weigh Waddy’s
confession in its determination of Washington’s guilt or non-
guilt. Therefore, despite the large measure of deference we
owe to the state courts, we conclude that the Superior Court
unreasonably applied clearly established federal law.
B.
Because the Pennsylvania Superior Court
unreasonably applied clearly established federal law, we next
consider whether the Confrontation Clause error had the
“substantial and injurious effect” on Washington’s case
required to merit relief. Fry v. Pliler, 551 U.S. 112, 121-22
(2007). If we were to conclude that the error did not
influence the jury or that it had “but very slight effect,” we
would uphold the judgment. See Adamson v. Cathel, 633
F.3d 248, 260 (3d Cir. 2011) (finding an error not
substantially injurious where there was “overwhelming”
evidence as to the crime itself, but not as to Adamson’s
involvement). But “grave doubt” about the effect of the error
means “we must conclude that the error was not harmless.”
Id.; see also Fry, 551 U.S. at 121 n.3 (citing O’Neal v.
23
McAninch, 513 U.S. 432, 435 (1995)). We perform an
independent analysis as to the harm caused by the error rather
than deferring to the state court’s conclusion. Bond, 539 F.3d
at 276 (holding that error did not have a substantial and
injurious effect where an independent eyewitness had
identified petitioner and petitioner had confessed, though he
later argued his confession was coerced).
The District Court concluded that the Confrontation
Clause error substantially injured Washington because the
only significant evidence against him came from Taylor’s
testimony. Washington, 867 F. Supp. 2d at 709. According
to the District Court, Taylor’s testimony suffered from
substantial credibility problems, both because of his history of
drug and alcohol abuse and because of his possible incentive
as a participant in the crime to distort the story to his own
benefit at trial. Id. Washington adds that Taylor lied
repeatedly to police during questioning and in earlier judicial
proceedings and analogizes his case to Vazquez, where we
held that the Bruton violation had caused a substantial and
injurious effect on the trial despite the existence of other,
often contradictory, evidence at trial that implicated Vazquez
beyond the coconspirator confession, including fingerprint
evidence. See Vazquez, 550 F.3d at 282-83.
The Commonwealth offers several reasons why the
redaction error cannot have caused a substantial and injurious
effect. First, the Commonwealth argues that the error could
not have been sufficiently consequential given the
government’s relatively light evidentiary burden: to convict
Washington of second-degree murder, the government needed
only to show that Washington took part in the robbery. See
24
18 Pa. Cons. Stat. § 2502(b). The Commonwealth describes
Washington’s complaint as having been identified as the
driver and argues that this could have no impact because the
government did not need to prove any particular role for him
to be found guilty – only that he was involved in the robbery.
This argument dramatically underplays the effect of Waddy’s
confession. At trial, Washington challenged the truthfulness
of Taylor’s statement and attempted to support this argument
during cross-examination by identifying a number of reasons
why the jury could question Taylor’s truthfulness. Waddy’s
statement accusing “the driver” stood before the jury with no
opportunity for rebuttal, providing corroboration for Taylor’s
claims without the liability of Taylor’s drug use and
impairment at the times of the events in question or his
history of changing his story about the robbery.
Second, the Commonwealth argues that Waddy’s
statement cannot have had a substantial and injurious effect
because Taylor’s testimony standing alone provided all the
evidence against Washington the government needed.
Acknowledging some of the problems with Taylor’s
testimony, the Commonwealth maintains that Taylor’s
testimony alone still would have been dispositive because
Taylor consistently stated Washington’s role, despite
changing on other issues, and provided sufficient evidence to
meet the relatively low factual requirements of second-degree
murder. Taylor’s testimony about other issues, but not
Washington’s role, was corroborated by other witnesses.
The trial judge, in a ruling assessing the weight and
sufficiency of the evidence after trial, called the evidence
against Washington “credible and essentially uncontradicted.”
25
Ohio App. at 84. The Commonwealth contends that this factual
finding, to the extent that the evidence against Washington
includes Taylor’s testimony, binds us and should have
prevented the District Court from basing its conclusion on the
potential problems with Taylor’s testimony that the jury could
have identified. See 28 U.S.C. § 2254(e)(1) (“[A]
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and
convincing evidence.”); Marshall v. Lonberger, 459 U.S. 422,
434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts
no license to redetermine credibility of witnesses whose
demeanor has been observed by the state trial court, but not
by them.”). But AEDPA’s high standard of deference does
not apply to our analysis of the error’s impact. Bond, 539
F.3d at 276. At Washington’s trial, Taylor’s credibility was
an issue before the jury. Our task is to determine whether
Waddy’s confession had a substantial and injurious effect on
the decision made by the jury. The trial court’s determination
post-trial that the evidence had been sufficient to convict is
not the relevant consideration.
Finally, the Commonwealth contends that the error
could not have substantially injured Washington because he
provided a “weak” rebuttal of character evidence from family
members and a “hopelessly contradictory” alibi. At trial,
testimony from family members and the paramedics who
brought Washington’s father to the hospital presented
conflicting timelines about when Washington was with his
father. But the fact that Washington’s alibi evidence may not
have been conclusive does not ultimately answer the question
26
before us. The Commonwealth had the burden of proving
Washington’s guilt beyond a reasonable doubt, and
Washington’s trial strategy included raising doubts about the
credibility of Taylor’s testimony. Because of the way it was
redacted, Waddy’s confession undercut that effort by
appearing to corroborate Taylor’s evidence about “the
driver.”
Ultimately, Washington has shown enough of a
probable impact on the jury to create “grave doubt” about the
consequences of the Confrontation Clause error. Adamson,
633 F.3d at 260. We therefore conclude that the Superior
Court erred on the Confrontation Clause issue and that such
error was sufficiently injurious to warrant relief.
IV.
For the foregoing reasons, we will affirm the June 7,
2012 order of the District Court. Consistent with that order,
the Commonwealth of Pennsylvania shall either release or
retry Washington within 120 days of entry of this order.7
7
The Duquesne Law School Federal Practice Clinic
ably represented Washington in this appeal. We thank the
students and the law school for their service.
27 | 01-03-2023 | 08-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1036993/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 12-1067/2604
_____________
DAWN BALL,
Appellant
v.
DR. FAMIGLIO; GLORIA DIGGAN, R.N.; NURSE
DILLELA; VANESSA NICOLA, HYGENIST; NELMS,
DENTIST; NURSE GREEN; BRIAN MENCH, NURSE;
MRS. MENCH; MS. JARRET; MS. BROWN; MS. WELL
CHANCE; NURSE BOYER; P.A. EGAN; P.A.
HIMELSBACK; ERICA STROUP; EYE DOCTOR; MS.
JOHNSON; MAJOR SMITH; DR. FABIAN; CAPTAIN
PINARD; MS. GAMBLE; DR. WOODS; DR.
SHIPTOWSKI; SGT. RAGAR; SGT. SAAR; SGT.
JOHNSON; LT. BOYER; NURSE CANDY OTT
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 08-cv-700)
District Judge: Hon. Yvette Kane
_______________
Argued
May 30, 2013
Before: JORDAN, VANASKIE and COWEN, Circuit
Judges.
(Filed: August 9, 2013)
_______________
Dawn Marie Ball (#OL-0342)
Muncy SCI
P. O. Box 180
Muncy, PA 17756
Pro Se Appellant
Kathryn M. Kenyon [ARGUED]
Pietragallo, Gordon, Alfano, Bosick & Raspanti
301 Grant Street – 38th Fl.
Pittsburgh, PA 15219
Counsel for Appellees Famiglio, Egan, Himelsback,
Stroup, Eye Doctor, Johnson, and Fabian
Jaime B. Boyd
Raymond W. Dorian [ARGUED]
Pennsylvania Dept. of Corrections
Office of Chief Counsel
1920 Technology Pkwy.
Mechanicsburg, PA 17050
Counsel for Appellees Diggan
2
Alan S. Gold [ARGUED]
Gold & Ferrante
261 Old York Road - #526
Jenkintown, PA 19046
Counsel for Appellees Woods, Shiptowski
Matthew E. Carey [ARGUED]
Thomas J. Derbesy [ARGUED]
Richard H. Frankel
Drexel University
Earle Mack School of Law
3320 Market Street
Philadelphia, PA 19104
Court Appointed Amicus Curiae
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Dawn Ball, an inmate in the Restricted Housing Unit
at the Pennsylvania State Correctional Institution Muncy
(“SCI-Muncy”), appeals the denial of her motion for a
preliminary injunction and the grant of summary judgment to
the defendants in this pro se action she brought pursuant to 42
U.S.C. § 1983, in which she alleges deliberate indifference to
her medical needs in violation of the Eighth Amendment.
Because Ball has asked to proceed in forma pauperis (“IFP”)
on appeal, we must determine whether she is eligible for that
status under the Prison Litigation Reform Act (“PLRA”),
Pub. L. No. 104-134, 110 Stat. 1321 (1996). For the
following reasons, we conclude that she is not eligible for IFP
3
status because she had accrued three “strikes” under the
PLRA and was not in imminent danger of serious physical
injury when she brought these appeals. We will therefore
deny her motion to proceed IFP and will also deny without
prejudice her motion for appointment of counsel.
I. BACKGROUND
A. Statutory Background
The federal IFP statute, enacted in 1892 and currently
codified at 28 U.S.C. § 1915, “is designed to ensure that
indigent litigants have meaningful access to the federal
courts,” Neitzke v. Williams, 490 U.S. 319, 324 (1989), and
that “‘no citizen shall be denied an opportunity to commence,
prosecute, or defend an action, civil or criminal, in any court
of the United States, solely because ... poverty makes it
impossible ... to pay or secure the costs’ of litigation.”
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (alterations in
original) (quoting Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 342 (1948)). Pertinent here, the statute allows
“[a] prisoner seeking to bring a civil action or [to] appeal a
judgment in a civil action” to proceed “without prepayment of
fees or security therefor,” if she can demonstrate that she is
unable to pay such fees. 28 U.S.C. § 1915(a)(2).
Congress recognized, however, that “a litigant whose
filing fees and court costs are assumed by the public, unlike a
paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.” Id.
(internal quotation marks omitted). And indeed, despite
efforts to curtail the opportunity for abusive filings that free
court access can provide, “[p]risoner litigation continues to
4
account for an outsized share of filings in federal district
courts.” Jones v. Bock, 549 U.S. 199, 203 (2007) (internal
quotation marks omitted). In 1996, in response to the tide of
“substantively meritless prisoner claims that have swamped
the federal courts,” Shane v. Fauver, 213 F.3d 113, 117 (3d
Cir. 2000) (original emphasis omitted), Congress enacted the
PLRA to “filter out the bad claims and facilitate consideration
of the good,” Bock, 549 U.S. at 204.
The PLRA sought to “reduce the quantity and improve
the quality of prisoner suits,” Porter v. Nussle, 534 U.S. 516,
524 (2002), in three main ways. First, it introduced an
exhaustion requirement, which bars an action by a prisoner
complaining of prison conditions “until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). Second, it established “prescreening” provisions
that require a court to dismiss an action or appeal sua sponte
if the action is “frivolous” or “malicious,” “fails to state a
claim upon which relief may be granted,” or “seeks monetary
relief from a defendant who is immune from such relief.” See
28 U.S.C. §§ 1915(e)(2)(B)(i), (e)(2)(B)(ii), 1915A(b); 42
U.S.C. § 1997e(c). Third, it created a so-called “three
strikes” rule to limit the number of lawsuits brought by
prisoners with a history of meritless litigation. Under that
provision, the language of which tracks that of the
prescreening provisions, a prisoner seeking IFP status may
not
bring a civil action or appeal a judgment in a
civil action or proceeding under this section if
the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility,
brought an action or appeal in a court of the
5
United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless
the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g). But “[i]t is important to note that
§ 1915(g) does not block a prisoner’s access to the federal
courts. It only denies the prisoner the privilege of filing
before he has acquired the necessary filing fee.” Abdul-Akbar
v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc).1
B. Facts2
Ball is an indigent inmate at SCI-Muncy who suffers
from a variety of physical and mental ailments. Among her
physical afflictions, she has “serious back problems” and
osteoarthritis (App. at 92, 100), she fears that she is losing her
vision due to a lack of medical treatment for her eyes, and she
1
The prisoner is still required to pay the costs of her
action or appeal, a departure from pre-PLRA practice, see
Denton v. Hernandez, 504 U.S. 25, 27 (1992), paying an
initial partial fee followed by installment payments until the
entire fee is paid. 28 U.S.C. § 1915(b)(1).
2
We set forth the facts in the light most favorable to
Ball because “th[e] initial assessment of the in forma pauperis
plaintiff’s factual allegations must be weighted in favor of the
plaintiff.” Denton, 504 U.S. at 32. However, the Supreme
Court has, in the IFP context, “reject[ed] the notion that a
court must accept as having an arguable basis in fact all
allegations that cannot be rebutted by judicially noticeable
facts.” Id. (citation and internal quotation marks omitted).
6
is asthmatic. Also, by her own account, she suffers from
several mental illnesses that include “PTSD, disassociative
[sic] disorder, ... phobias, agoraphobia, severe anxiety, ...
cognitive problems and disorders, ... paranoid-schizophrenic,
constant worry, frightened[,] scared, ... bipolar, manic
depressive, [and] mood swings that are so severe, can’t think
clearly ... .” Ball v. SCI Muncy, No. 08-cv-700 (M.D. Pa.)
(Doc. 216 (“Magistrate Judge’s Report”), pg. 1) (internal
quotation marks omitted).
Ball’s claims in the present action fall into several
broad categories. First, she alleges that she sustained burns,
bruises, cuts, and contusions at the hands of prison officials,
and that she was subsequently denied medical attention for
those injuries. Second, she complains that Dr. Famiglio
“allows the prison officials to take her mattress [and] refuse
her needed meds” (App. at 100), and that prison officials have
also denied her the use of her wheelchair and cane,
exacerbating the pain caused by her back problems and
degenerative joint disease. Third, Ball alleges that her vision
is deteriorating due to a lack of proper medical treatment for
her eyes. Fourth, she alleges that she is “living in a room
with dangerous black mold” (App. at 94) and that Dr.
Famiglio is “continually allowing the prison officials to spray
her with o/c (mace)” (id. at 100), both of which endanger her
health because she suffers from chronic asthma. More
generally, Ball alleges that prison officials have subjected her
to mistreatment in retaliation for the many lawsuits she has
filed against SCI-Muncy and its personnel, and that Dr.
Famiglio denied her medical treatment because she refused
his romantic advances.
7
Appellees deny all of Ball’s allegations, asserting that
“Ms. Ball ... has no need for such [medical] care,” (App. at
88) and that she “has available to her emergency medical
care,” (id. at 89). They also state that Ball has been
described as a “possible malingerer,” that she “feigns
blindness,” and that she “claims back pain ... and numerous
other conditions that have not been supported by any
objective findings or examinations.” (App. at 88-89.) They
also allege that she frequently refuses to leave her cell to see
medical caregivers.
C. Procedural History
1. Litigation Prior to the Present Appeals3
The present action is part of a larger pattern of
repeated and entirely unsuccessful litigation brought by Ball
in the United States District Court for the Middle District of
Pennsylvania. We discuss only those actions that are relevant
to the appeals now before us.
The germane history began in March 2008, with a
complaint filed against SCI-Muncy in which Ball alleged
physical assault, denial of medical treatment, and other
mistreatment. See Ball v. SCI Muncy, No. 08-cv-0391 (M.D.
Pa.). The District Court dismissed that action in December
2008 pursuant to Federal Rule of Civil Procedure 12(b)(6),
noting that Ball’s failure to exhaust her administrative
remedies, as required by the PLRA, was stated in her
3
All of Ball’s actions discussed in this opinion were
filed pursuant to 42 U.S.C. § 1983.
8
complaint. See id. (Doc. 36). We affirmed that dismissal in
July 2010. See id. (Doc. 44).
Ball filed a second civil action in May 2009, claiming
that her constitutional rights were violated because she was
not allowed to participate by phone in a hearing on a paternity
matter she had filed in state court. See Ball v. Hartman, No.
09-cv-0844, 2010 WL 597401 (M.D. Pa. Feb. 16, 2010). In
January 2010, the District Court granted the motion to
dismiss filed by one of the defendants, observing that “[t]he
complaint lacks any allegations against [the defendant], who
is not a prison employee, but rather, a court administrator in
Northhampton County.” See Ball v. Hartman, No. 09-cv-
0844, 2010 WL 146319, at *5-*7 (M.D. Pa. Jan. 11, 2010).4
In February 2010, the Court then dismissed the remaining
claims pursuant to Rule 12(b)(6) on the grounds that the
defendants were not personally involved in the alleged
mistreatment and could not be sued in their supervisory
capacity under § 1983, and that Ball had not pled an injury-
in-fact and therefore lacked standing. See Hartman, 2010
WL 597401, at *2-*3.5 We affirmed the District Court’s
4
The District Court also explained that, “even if the
complaint contained factual allegations against [the
defendant], she would be immune from suit,” Ball v.
Hartman, 09-cv-0844, 2010 WL 146319, at *6 (M.D. Pa. Jan.
11, 2010), in both her official capacity (pursuant to the
Eleventh Amendment) as well as her individual capacity (in
accordance with the doctrine of quasi-official immunity), id.
at *6-*7.
5
The orders accompanying the Hartman opinions
granted the defendants’ motions to dismiss without stating the
reason for doing so. The second order did state that any
9
judgment in October 2010. See Ball v. Hartman, 396 F.
App’x 823, 825 (3d Cir. 2010) (per curiam).
In June 2011, Ball filed another lawsuit, this time
against the state court judge who had ordered her transferred
to SCI-Muncy. Ball alleged that the judge ordered the
transfer with malicious intent. See Ball v. Butts, No. 11-cv-
1068 (M.D. Pa.). The District Court dismissed that case
pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) because the
defendant was entitled to absolute immunity. See Butts, No.
11-cv-1068 (Doc. 8). We dismissed the appeal, stating that it
was frivolous because it “lack[ed] an arguable basis either in
law or in fact,” Ball v. Butts, 445 F. App’x 457, 457 (3d Cir.
2011) (nonprecedential), due to the absolute immunity of the
defendant judge and the lack of any evidence of malice.
Ball filed many other lawsuits in the District Court, all
of which followed the same basic pattern as SCI Muncy,
Hartman, and Butts. She has a total of more than thirty
appeal from the order “is deemed frivolous and not in good
faith,” a certification made pursuant to 28 U.S.C.
§ 1915(a)(3). Ball v. Hartman, No. 09-cv-0844, 2010 WL
597401, *4 (M.D. Pa. Feb. 16, 2010). It nevertheless appears
that Ball’s Hartman complaint was dismissed for failure to
state a claim, because the Court characterized the personal
involvement of a § 1983 defendant as an element of the
claim. See id. at *2 (listing “conduct complained of ...
committed by a person acting under color of state law” as one
of the “essential elements” of a § 1983 claim); Hartman, 2010
WL 146319, at *6 (“The complaint lacks any allegations
against [the defendant], who is not a prison employee, but
rather, a court administrator in Northhampton County.”).
10
actions to her name as of the date of this opinion. All but five
of them have been dismissed by the District Court, and those
remaining five are still pending. As a result of the dismissals,
Ball currently has twenty-two appeals before us in addition to
the present appeals.6
2. The Present Appeals
Ball commenced this particular lawsuit on April 14,
2008, and filed an amended complaint on March 12, 2010.
The amended complaint endeavors to advance Eighth
Amendment claims of deliberate indifference to Ball’s
medical needs based on the quality of care that she received
between 2006 and 2008. Ball also filed a motion for a
preliminary injunction, which the District Court denied by
order dated December 8, 2011. Ball filed a timely notice of
appeal.7
6
That does not include two additional appeals related
to the case from which the present appeals arise, Nos. 10-
1700, 11-2629. We decided the appeal at 10-1700, affirming
the District Court’s denial of another of Ball’s motions for a
preliminary injunction (not the one presently at issue). See
Ball v. Dr. Famiglio et al., 396 F. App’x 836 (3d Cir. 2010)
(per curiam). The appeal at 11-2629 was dismissed for
failure to prosecute.
7
Her notice of appeal was filed on January 4, 2012,
and her appeal was docketed on January 17, 2012 as No. 12-
1067. As discussed in Part II.A.3, infra, the date an appeal
commences is important for determining whether a dismissal
counts as a PLRA strike for purposes of that appeal.
11
Ball originally sued some twenty-eight corrections
officers, medical personnel, and contract health providers
employed or providing services at SCI-Muncy. Through the
process of pretrial litigation, the number of defendants was
reduced, so that the complaint named thirteen department of
corrections medical and correctional staff as defendants,
along with five contract health providers who provided
medical treatment to Ball. In response to motions by the
defendants, the District Court also dismissed a number of
claims from the lawsuit, leaving only claims for inadequate
medical treatment.
On August 15, 2011, the remaining defendants filed
motions for summary judgment. The assigned Magistrate
Judge subsequently issued a Report and Recommendation
that summary judgment be granted based on Ball’s failure to
exhaust her administrative remedies. See Ball v. SCI Muncy,
No. 08-cv-700, (Doc. 216). On May 22, 2012, the District
Court adopted the recommendation and granted summary
judgment to the defendants with respect to all of Ball’s
claims. See Ball v. SCI Muncy, No. 08-cv-700 (Doc. 239).
Ball again timely appealed,8 and the two appeals – the
first from the denial of a preliminary injunction and the
second from the rulings on the merits – were consolidated.
On June 20, 2012, Ball filed a motion to proceed IFP as well
as two motions asserting that she was in imminent danger of
serious physical injury.9 She also filed a motion for
8
Her notice of appeal was filed on June 4, 2012, and
her appeal was docketed June 8, 2012 as No. 12-2604.
9
In August 2012, the District Court revoked Ball’s IFP
status on the grounds that she had accrued three strikes,
12
appointment of counsel. Those motions were referred to this
merits panel, and amicus counsel was appointed.10
II. DISCUSSION11
To date, Ball has accumulated more than twenty-five
dismissals of actions and appeals by the District Court and
this Court. How to consider those dismissals for purposes of
the PLRA is what is principally at issue now. As discussed
above, under the PLRA’s “three strikes” provision, a prisoner
may not “bring a civil action or appeal a judgment in a civil
action or proceeding” if the prisoner has, on three or more
prior occasions, had an action or appeal “dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under
counting its own dismissals in Hartman and Butts and our
dismissal of the Butts appeal. See Ball v. Hummel, No. 12-cv-
0814, 2012 WL 3614045, at *1 (M.D. Pa. Aug. 21, 2012).
10
Our Amicus is the Appellate Litigation Clinic of the
Earle Mack School of Law at Drexel University, for whose
diligent and expert assistance we express sincere gratitude.
11
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331, 1343(a)(3), (a)(4). We have jurisdiction
under 28 U.S.C. § 1291. Because the issues raised in this
appeal arise from Ball’s motion to proceed IFP, and the
District Court did not address her IFP status in this case, there
is no district court order under review. However, this case
presents questions of law regarding the proper interpretation
of 28 U.S.C. § 1915(g), which would be subject to plenary
review in any event. Gibbs v. Cross, 160 F.3d 962, 964 (3d
Cir. 1998).
13
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). The District Court did not dispose of Ball’s claims
in this case under the three strikes provision, but rather based
on Ball’s failure to exhaust her administrative remedies, as
required under another provision of the PLRA, see 42 U.S.C.
§ 1997e(a). However, in her appeal to us, Ball has requested
permission to proceed IFP, which requires that we determine
whether she is eligible for that status in light of the three
strikes rule.
Given the character of previous dismissals in Ball’s
legal proceedings, this appeal necessitates a determination of
whether a dismissal for failure to exhaust administrative
remedies counts as a PLRA strike, and whether dismissal on
the basis of absolute immunity qualifies as a PLRA strike.
Because we conclude that Ball had three strikes for purposes
of the PLRA at the time she filed the present appeals, we
must also determine whether she may still proceed IFP based
on imminent danger of serious physical injury. We take up
each of those questions in turn.
A. Application of the PLRA’s Three Strikes Rule
1. Dismissals for Failure to Exhaust
The PLRA provides that “[n]o action shall be brought
with respect to prison conditions ... by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). “Requiring exhaustion allows prison
officials an opportunity to resolve disputes concerning the
exercise of their responsibilities before being haled into
court.” Bock, 549 U.S. at 204. It also “has the potential to
reduce the number of inmate suits, and also to improve the
14
quality of suits that are filed by producing a useful
administrative record.” Id.
In their “attempt[s] to implement the exhaustion
requirement, some lower courts have imposed procedural
rules that have become the subject of varying levels of
disagreement among the federal courts of appeals.” Id. One
issue on which the circuits are split is the interaction of the
PLRA’s exhaustion requirement and the three strikes rule.
The majority view seems to be that, based on the plain
language of the three strikes provision, which does not
mention exhaustion, dismissal for failure to exhaust does not
count as a PLRA strike. See Turley v. Gaetz, 625 F.3d 1005,
1013 (7th Cir. 2010) (“[N]either the dismissal of a complaint
in its entirety for failure to exhaust nor the dismissal of
unexhausted claims from an action containing other viable
claims constitutes a strike under § 1915(g).”); Owens v. Isaac,
487 F.3d 561, 563 (8th Cir. 2007) (per curiam) (“The first
case was dismissed without prejudice for failure to exhaust
administrative remedies; such a dismissal is not a strike under
section 1915(g).”); Green v. Young, 454 F.3d 405, 409 (4th
Cir. 2006) (“[R]outine dismissal on exhaustion grounds is not
a strike for purposes of the PLRA.”); Snider v. Melindez, 199
F.3d 108, 115 (2d Cir. 1999) (“[D]ismissal by reason of a
remediable failure to exhaust should not count as a strike.”).
Courts following the majority approach treat failure to
exhaust as an affirmative defense, so that “[a] prisoner’s
failure to exhaust administrative remedies is statutorily
distinct from his failure to state a claim upon which relief
may be granted.” Turley, 625 F.3d at 1013.
However, there are decisions holding that failure to
exhaust constitutes a strike, notwithstanding that exhaustion
15
is not mentioned in §1915(g). The reasoning is that an action
“that fails to allege the requisite exhaustion of remedies is
tantamount to one that fails to state a claim upon which relief
may be granted,” which is a specified ground for a strike.
Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998),
abrogated in part by Jones v. Bock, 549 U.S. 199 (2007).
Courts following that line start from the premise that, due to
the mandatory nature of exhaustion, it is an “essential
allegation of a prisoner’s claim.” Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003), abrogated in
part by Jones v. Bock, 549 U.S. 199 (2007). They thus
“conclude that § 1997e(a) imposes a pleading requirement on
the prisoner,” so that if the plaintiff fails to plead exhaustion,
the court may dismiss the complaint on a Rule 12(b)(6)
motion. Id. at 1210. That minority view appears also to be
based, in part, on the observation that exhaustion should not
be seen as an affirmative defense “because it cannot be
waived.” Id. at 1209 (citing Fed. R. Civ. P. 8(c) (“Failure to
plead an affirmative defense results in a waiver of that
defense.”)).12
The United States Court of Appeals for the District of
Columbia Circuit follows neither the majority nor the
12
That conclusion is at odds with the Supreme Court’s
subsequent holding in Jones v. Bock, 549 U.S. 199 (2007),
that “failure to exhaust is an affirmative defense under the
PLRA, and … inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” 549 U.S. at 216.
However, Bock addressed only the PLRA’s screening
requirements, and not the three strikes rule, and, as discussed
below, left open the possibility that failure to exhaust could
be a basis for dismissal for failure to state a claim.
16
minority approach. In Thompson v. Drug Enforcement
Administration, it suggested instead that, “[b]ecause there is
no categorical answer to the question whether failure to
exhaust administrative remedies counts as failure to state a
claim for Rule 12(b)(6) purposes, the question likewise has
no categorical answer under section 1915(g), the language of
which Congress clearly modeled on Rule 12(b)(6).” 492 F.3d
428, 438 (D.C. Cir. 2007). The Thompson Court reasoned
that, “if a particular statute requires the plaintiff to plead
exhaustion and the plaintiff fails to do so, the court may
dismiss the complaint on a Rule 12(b)(6) motion,” but that,
“even when failure to exhaust is treated as an affirmative
defense, it may be invoked in a Rule 12(b)(6) motion if the
complaint somehow reveals the exhaustion defense on its
face.” Id. The D.C. Circuit has thus chosen to establish a
“bright-line rule that avoids the need to relitigate past cases”:
“if the court dismisses an unexhausted complaint on a Rule
12(b)(6) motion or if it dismisses the complaint sua sponte
and expressly declares that the complaint fails to state a
claim, the dismissal counts as a strike.” Id.
We have not previously addressed the issue of how
exhaustion may relate to the three strikes rule, but we did
consider two related issues in Ray v. Kertes, 285 F.3d 287 (3d
Cir. 2002). In that case, the district court dismissed a
prisoner’s complaint before the defendants were served
because the prisoner had not set forth any steps he had taken
to exhaust administrative remedies. He argued on appeal that
failure to exhaust is an affirmative defense that must be
pleaded and proven by the defendants in a PLRA action, and
he relied in part on Williams v. Runyon, 130 F.3d 568 (3d Cir.
1997), a Title VII case in which we stated that “failure to
exhaust administrative remedies is an affirmative defense in
17
the nature of statute[s] of limitations.” Ray, 285 F.3d at 292
(quoting Williams, 130 F.3d at 573) (internal quotation marks
omitted). We noted in Ray that the majority of appellate
courts that had considered the issue had held that the PLRA’s
exhaustion requirement is an affirmative defense. See id. at
293 (collecting cases). We also observed that “considerations
of policy [and] fairness” come into play when categorizing a
pleading requirement as an affirmative defense, id. at 295
(alteration in original) (internal quotation marks omitted), and
that “it appears that it is considerably easier for a prison
administrator to show a failure to exhaust than it is for a
prisoner to demonstrate exhaustion.” Id.13 We thus “join[ed]
the many other circuits that have held that failure to exhaust is
an affirmative defense to be pleaded by the defendant.” Id.
We also considered in Ray whether failure to exhaust
constituted grounds for a court’s sua sponte dismissal
pursuant to the PLRA’s prescreening provision, 42 U.S.C.
§ 1997e(c). As noted earlier, supra Part II.A, that provision
permits dismissal of an action or claim that is “frivolous,
malicious, fails to state a claim upon which relief can be
13
The Tenth Circuit in Steele explicitly rejected that
part of our reasoning in Ray. It observed that “[a] showing of
exhaustion does not rely solely on the maintenance of an
efficient filing and retrieval system” and that “[t]he prisoner
outlines his own grievance in the prison administrative
system and frames his allegations in federal court.” Steele,
355 F.3d at 1210. As a result, the Court concluded that “it is
the prisoner who can best assert the relationship between his
administrative grievance and court filing,” id., so that there is
“no inequity in placing the burden of pleading exhaustion on
the prisoner,” id. at 1209.
18
granted, or seeks monetary relief from a defendant who is
immune from such relief.” 42 U.S.C. § 1997e(c). Applying
the principle of “expressio unius est exclusio alterius – when
a statute specifically enumerates some categories, it impliedly
excludes others,” Ray, 285 F.3d at 296, we said that
“[n]otably absent from the list is any reference to failure to
exhaust.” Id. We also observed that the final sentence of
§ 1997e(c)(2) states that “‘the court may dismiss the
underlying claim ... without first requiring the exhaustion of
administrative remedies,’ [which] shows that Congress had
not forgotten about the need for exhaustion, but chose not to
include failure to exhaust among the grounds for which the
court could dismiss sua sponte.” Id. (quoting 42 U.S.C.
§ 1997e(c)(2)). And we reasoned that “[t]he statutory
structure also belies any possibility that a failure to exhaust is
included in [§ 1997e](c)(1)’s broad rubric of ‘failure to state a
claim upon which relief can be granted.’” Id. at 296 n.9;
accord Snider, 199 F.3d at 112 (concluding that “fail[ure] to
state a claim as used in Section[] 1997e(c) ... of the PLRA
does not include failure to exhaust administrative remedies”
(first alteration in original) (internal quotation marks
omitted)). Based on the foregoing, we concluded that
“Congress did not intend to include failure to exhaust among
the categories justifying sua sponte dismissal,” Ray, 285 F.3d
at 296, either as an independent ground or under the guise of
failure to state a claim.
Our holdings in Ray, and the reasoning on which they
were based, would seem to compel us to follow the majority
rule and conclude that dismissal for failure to exhaust does
not constitute a strike under the PLRA. Like the prescreening
provisions, the language of § 1915(g) does not include failure
to exhaust in the list of enumerated strike grounds, indicating
19
that Congress did not intend for a dismissal based on
exhaustion to count as a strike. The majority view is also
consistent with our conclusion in Ray that failure to exhaust is
an affirmative defense, rather than an element of a prisoner’s
claim, and that it does not constitute a basis for sua sponte
dismissal for failure to state a claim.
Despite that, however, dictum in Jones v. Bock
suggests that we should follow the D.C. Circuit’s approach
and adopt a clear but flexible rule.14 In Bock, even as it held
that exhaustion is an affirmative defense, see supra note 12,
the Supreme Court added that “that is not to say that failure to
exhaust cannot be a basis for dismissal for failure to state a
claim.” Bock, 549 U.S. at 216. The Court observed that “[a]
complaint is subject to dismissal for failure to state a claim if
the allegations, taken as true, show the plaintiff is not entitled
to relief,” and that “[w]hether a particular ground for
opposing a claim may be the basis for dismissal for failure to
state a claim depends on whether the allegations in the
complaint suffice to establish that ground, not on the nature of
the ground in the abstract.” Id. at 215. For example, if the
allegations in a complaint “show that relief is barred by the
applicable statute of limitations, the complaint is subject to
dismissal for failure to state a claim[,] [but] that does not
make the statute of limitations any less an affirmative
14
We have previously explained that “we should not
idly ignore considered statements the Supreme Court makes
in dicta” because the Court “uses dicta to help control and
influence the many issues it cannot decide because of its
limited docket,” and because ignoring it “increase[s] the
disparity” among the Courts of Appeals. In re McDonald,
205 F.3d 606, 612 (3d Cir. 2000).
20
defense.” Id. The D.C. Circuit’s rule, which was based on
that reasoning in Bock, admits the possibility that “even when
failure to exhaust is treated as an affirmative defense, it may
be invoked in a Rule 12(b)(6) motion if the complaint
somehow reveals the exhaustion defense on its face.”
Thompson, 492 F.3d at 438. That approach is also consistent
with the law of this Circuit concerning affirmative defenses
and motions to dismiss. See Leveto v. Lapina, 258 F.3d 156,
161 (3d Cir. 2001) (“[A] complaint may be subject to
dismissal under Rule 12(b)(6) when an affirmative defense ...
appears on its face.”).15 Cf. Robinson v. Johnson, 313 F.3d
128, 135 (3d Cir. 2002) (noting that “the law of this Circuit
(the so-called ‘Third Circuit Rule’) permits a limitations
defense to be raised by a motion under Rule 12(b)(6), but
only if the time alleged in the statement of a claim shows that
the cause of action has not been brought within the statute of
limitations.” (internal quotation marks omitted)).16
15
The Bock Court cited Leveto v. Lapina, 258 F.3d
156 (3d Cir. 2001), in support of its statement that an
affirmative defense, such as failure to exhaust, may be the
basis of a dismissal for failure to state a claim. See Bock, 549
U.S. at 215.
16
As we noted in Robinson, “[t]he ‘Third Circuit Rule’
dates back at least to 1948 when we recognized ... that
affirmative defenses are ordinarily pleaded pursuant to Fed.
R. Civ. P. 8(c), but that [a] defense could be raised in other
ways.” Robinson v. Johnson, 313 F.3d 128, 135 n.3 (3d Cir.
2002) (citing Hartmann v. Time, Inc., 166 F.2d 127, 139 (3d
Cir. 1947)). Since that time, we have acknowledged that a
number of affirmative defenses that are not listed in Rule
12(b) could still be made by motion, provided that the basis
of the defense was apparent on the face of the complaint.
21
We thus adopt the following rule as it relates to
exhaustion and PLRA strikes: dismissal based on a prisoner’s
failure to exhaust administrative remedies does not constitute
a PLRA strike, unless a court explicitly and correctly
concludes that the complaint reveals the exhaustion defense
on its face and the court then dismisses the unexhausted
complaint for failure to state a claim. The first part of the rule
– pertaining to cases in which the exhaustion defense is not
apparent in the complaint – is likely to cover “the majority of
cases ... [so that] the defense will not be raised on a Rule
12(b)(6) motion and the dismissal will not count as a strike.”
Thompson, 492 F.3d at 438. The second part – which applies
when a court has correctly determined that the exhaustion
defense is apparent on the face of the complaint – follows
from the statutory text of § 1915(g) and our own “Third
Circuit Rule.” “When a court dismisses an unexhausted
complaint under Rule 12(b)(6), thus concluding that the
See, e.g., Rycoline Prods., Inc. v. C & W Unltd., 109 F.3d
883, 886 (3d Cir. 1997) (affirmative defense must be apparent
on the face of the complaint to be subject to a Rule 12(b)(6)
motion to dismiss); Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.1 (3d Cir.1994) (“While the
language of Fed. R. Civ. P. 8(c) indicates that a statute of
limitations defense cannot be used in the context of a Rule
12(b)(6) motion to dismiss, an exception is made where the
complaint facially shows noncompliance with the limitations
period and the affirmative defense clearly appears on the face
of the pleading.”); Williams v. Murdoch, 330 F.2d 745, 749
(3d Cir. 1964) (affirmative defense of res judicata may be
raised by a motion to dismiss or by an answer).
22
complaint fails to state a claim, section 1915(g)’s plain text
compels us to count that case as a strike.” Id.17
17
The second part of the rule requires that the
dismissal based on failure to exhaust, pursuant to Rule
12(b)(6), be with prejudice. “We assume that Congress is
aware of existing law when it passes legislation,” Miles v.
Apex Marine Corp., 498 U.S. 19, 32 (1990), and Congress
used the language of Rule 12(b)(6) in the PLRA’s three
strikes provision. See 28 U.S.C. § 1915(g) (strike accrues on
dismissal of an action that “fails to state a claim upon which
relief may be granted”). A dismissal for failure to state a
claim under Rule 12(b)(6) is presumed to be a judgment on
the merits unless otherwise specified. See Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) (“The
dismissal for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6) is a judgment on the merits.”
(citation and internal quotation marks omitted)). “It follows
that the type of prior dismissal for failure to state a claim
contemplated by § 1915(g) is one that constituted an
adjudication on the merits and prejudiced the filing of a
subsequent complaint with the same allegations.” McLean v.
United States, 566 F.3d 391, 396 (4th Cir. 2009). By
contrast, a dismissal for failure to exhaust without prejudice is
not an adjudication on the merits. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 396 (1990) (“[D]ismissal ...
without prejudice is a dismissal that does not operat[e] as an
adjudication upon the merits ... .” (alterations in original)
(citing and quoting Fed. R. Civ. P. 41(a)(1)) (internal
quotation marks omitted)). Consequently, a dismissal for
failure to state a claim on exhaustion grounds without
prejudice “does not fall within the plain and unambiguous
meaning of § 1915(g)’s unqualified phrase ‘dismissed ... [for]
23
2. Dismissals Due to Absolute Immunity
The PLRA’s prescreening provisions require a court to
dismiss an action or an appeal at any time the court
determines that the plaintiff “seeks monetary relief” from “a
defendant who is immune from such relief.” 28 U.S.C.
§§ 1915(e)(2)(B)(iii), 1915A(b)(2); 42 U.S.C. § 1997e(c)(1).
But, like failure to exhaust, immunity is not one of the
enumerated grounds for a strike under § 1915(g), which
indicates that Congress did not intend for dismissal on
immunity grounds to count as a strike. See Russello v. United
States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposefully in the disparate
inclusion or exclusion.” (alteration in original) (citation and
internal quotation marks omitted)). Also, immunity is an
affirmative defense, so that a prisoner’s failure to plead that
the defendant was not immune would not normally provide a
basis for dismissal for failure to state a claim. See Ray, 285
F.3d at 297 (noting that the Supreme Court has criticized the
creation of heightened pleading standards in the PLRA
context). Thus, it would seem clear that a dismissal due to
the immunity of the defendant does not, on its own, count as a
PLRA strike. See Thompson, 492 F.3d at 439 (declining to
treat all dismissals under 28 U.S.C. § 1915A as strikes, in part
fail[ure] to state a claim’” and “does not count as a strike.”
McLean, 566 F.3d at 397 (alterations in original). The
District Court did not state that any of the dismissals at issue
in these appeals were without prejudice, and so they are
presumed to be with prejudice, and they “operate[] as an
adjudication on the merits.” Fed. R. Civ. P. 41(b).
24
because that provision “requires dismissal of complaints that
‘seek[ ] monetary relief from a defendant who is immune
from such relief’ – a reason not covered by section 1915(g)”
(quoting 28 U.S.C. § 1915A(b)(2))).
Again, however, affirmative defenses may be apparent
on the face of a prisoner’s complaint, and immunity could,
like failure to exhaust, provide the basis of a dismissal
pursuant to Rule 12(b)(6). See Pani v. Empire Blue Cross
Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998) (dismissing a
complaint under Rule 12(b)(6) because “the complaint itself
establishes the facts necessary to sustain defendant’s
immunity defense”). Under our Court’s practice, then,
immunity could in certain cases justify a dismissal that would
count as a PLRA strike. In addition, “[o]ne of the purposes of
immunity, absolute or qualified, is to spare a defendant not
only unwarranted liability, but unwarranted demands
customarily imposed on those defending a long drawn out
lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991). For
that reason, “[i]t is also well established that an affirmative
defense of official immunity should be resolved as early as
possible by the court ... .” Pani, 152 F.3d at 75; see also
Vaughn v. U.S. Small Bus. Admin., 65 F.3d 1322, 1326 (6th
Cir. 1995) (“To avoid imposing needless discovery costs
upon government officials, the determination of qualified
immunity must be made at an early stage in the litigation.”).
That suggests that, when a prisoner sues a defendant who is
immune, the court should grant a pre-answer motion to
dismiss based on the affirmative defense of immunity
“without resort to summary judgment procedure, if the
defense appears on the face of the complaint.” Pani, 152
F.3d at 74.
25
Some courts have gone further, suggesting that a
dismissal based on immunity may be tantamount to a
dismissal for frivolousness, which, like failure to state a
claim, is an enumerated basis for a PLRA strike. See, e.g.,
Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1178 (10th
Cir. 2011) (construing a district court’s dismissal to “mean
that the immunity ground for dismissal was subsumed in
frivolousness or appellant’s failure to state a claim, because
appellant affirmatively asserted facts showing that he could
not meet the expropriation exception to [defendant’s]
immunity” (emphasis in original)). The Second Circuit has,
in fact, decided that prisoner actions against defendants who
enjoy absolute immunity are per se frivolous. See Mills v.
Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“The IFP statute
does not explicitly categorize as frivolous a claim dismissed
by reason of judicial immunity, but we will: [a]ny claim
dismissed on the ground of absolute judicial immunity is
‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”).
The text of the PLRA, however, treats dismissal for
frivolousness as separate and distinct from dismissal on
grounds of immunity. Like failure to state a claim,
frivolousness is listed as a ground for prescreening dismissal,
and it is listed separately and distinctly from dismissal due to
immunity. Compare 28 U.S.C. § 1915(e)(2)(B)(i), and id.
§ 915A(b)(1) (requiring dismissal of an action that is
frivolous), with id. § 1915(e)(2)(B)(iii), and id. § 1915A(b)(2)
(dismissal on grounds that the defendant is immune from suit
for monetary relief). And again like failure to state a claim,
dismissal for frivolousness is an enumerated strike ground,
see id. § 1915(g), while dismissal based on immunity is not.
Moreover, to automatically treat a district court’s dismissal on
immunity grounds as one for frivolousness gives inadequate
26
deference to the district court. “[T]he district courts[] … are
all too familiar with factually frivolous claims, [and] are in
the best position to determine which cases fall into this
category. Indeed, the [IFP] statute’s instruction that an action
may be dismissed if the court is satisfied that it is frivolous
indicates that frivolousness is a decision entrusted to the
discretion of the court entertaining the in forma pauperis
petition.” Denton, 504 U.S. at 33 (citation and internal
quotation marks omitted).18 We therefore decline to treat a
18
We note, however, that Denton preceded the
enactment of the PLRA, and that, although it is up to the
district court to make the frivolousness determination, the
dismissal of a frivolous action is now mandatory. See 28
U.S.C. §§ 1915(e)(2)(B)(i), 1915A(b)(1); 42 U.S.C.
§ 1997e(c). We also note that a district court may base its
frivolousness determination either on its conclusion that “a
claim [is] based on an indisputably meritless legal theory” or
on a finding that “the complaint’s factual allegations ... are
clearly baseless,” Neitzke v. Williams, 490 U.S 319, 327
(1989), and that we suggest deference only to the latter. Cf.
Denton, 504 U.S. at 33 (concluding that “a finding of factual
frivolousness is appropriate when the facts alleged rise to the
level of the irrational or the wholly incredible” and that “the
district courts[] ... are in the best position to determine which
cases fall into this category”); Roman v. Jeffes, 904 F.2d 192,
194 (3d Cir. 1990) (stating that “[o]ur review of a district
court decision dismissing a complaint as frivolous is plenary”
but acknowledging that a district court may base its
frivolousness determination either on its conclusion that a
claim is “based on an indisputably meritless legal theory” or
on a finding that the complaint’s “factual contentions are
clearly baseless”).
27
district court’s dismissal due to the defendant’s immunity as a
per se dismissal for frivolousness for purposes of the PLRA’s
three strikes rule.19
19
Although we do not think that a dismissal on the
ground of immunity is per se a dismissal for frivolousness,
we reiterate that the district courts are free to conclude that an
action is frivolous because the defendant is immune – and to
clearly state frivolousness as the reason for the dismissal. As
the Second Circuit recognized in announcing its per se rule,
when a defendant enjoys absolute judicial immunity, the
action is quite likely frivolous. See Stump v. Sparkman, 435
U.S. 349, 356 (1978) (“A judge will not be deprived of
immunity because the action he took was in error, was done
maliciously, or was in excess of his authority ... .”). But even
judicial immunity has its limits. See id. at 356-57 (noting that
a judge “will be subject to liability ... when he has acted in the
clear absence of all jurisdiction” (internal quotation marks
omitted)). And, more generally, a prisoner could have made a
nonfrivolous claim by pleading facts that demonstrated that
an exception to absolute immunity applied, or that the
requirements of qualified immunity were not satisfied, even
though the district court ultimately determined that the
immunity defense remained intact and dismissed the
complaint on that basis. Cf. Hafed v. Fed. Bureau of Prisons,
635 F.3d 1172, 1178 (10th Cir. 2011) (observing that a claim
against an immune defendant “could properly be dismissed
by a district court sua sponte as frivolous” but only “if it [is]
clear from the face of the complaint that the defendant was
absolutely immune from suit and no further factual
development was required”).
28
Instead, we hold that dismissal based on the immunity
of the defendant, whether absolute or qualified, does not
constitute a PLRA strike, including a strike based on
frivolousness, unless a court explicitly and correctly
We also emphasize that we may dismiss as frivolous
an appeal of an action dismissed on immunity grounds. The
PLRA counts each “occasion[]” on which “an action or
appeal” is dismissed on one of the enumerated grounds as a
separate strike, 28 U.S.C. § 1915(g), so that we may dismiss
an appeal as frivolous, causing the prisoner to accrue a strike,
see Hafed, 635 F.3d at 1179, even if the district court
dismissed the action solely on grounds of immunity. And, in
fact, a district court may certify that an appeal would not be
taken in good faith, even if it dismissed the action on grounds
other than frivolousness. See 28 U.S.C. § 1915(a)(3).
Certainly, if the District Court certifies that an appeal would
not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3),
and we dismiss the appeal under § 1915(e)(2)(B)(i) on the
same grounds as those on which the District Court based its
dismissal, then dismissal of the appeal should count as a
strike. But even if the District Court did not certify that an
appeal would be lacking a good faith basis, we may “consider
the nature of the dismissal,” Hafed, 635 F.3d at 1178, such
that the appeal may itself be dismissed as frivolous. In the
case of a district court’s dismissal based on immunity, our
determination that the appeal may be dismissed as frivolous
would be proper when the prisoner “affirmatively asserted
facts showing” that the defendant was immune from suit for a
monetary remedy and that none of the exceptions to such
immunity applied, so that he had no “legally valid claim.” Id.
(emphasis in original) (internal quotation marks omitted).
29
concludes that the complaint reveals the immunity defense on
its face and dismisses the unexhausted complaint under Rule
12(b)(6) or expressly states that the ground for the dismissal
is frivolousness.20
3. Other Questions of Strike Computation
Before applying the rules adopted in the previous
sections to the dismissals of Ball’s various actions, we
address four more questions, first reviewing our recent
answers to two questions of PLRA strike calculation and
then resolving two additional questions. The first question is
whether “unclear” dismissals can be counted as strikes for
purposes of § 1915(g). We answered “no” to that inquiry
earlier this year in Byrd v. Shannon, 715 F.3d 117 (3d Cir.
2013). Byrd concerned the dismissal of a prisoner’s appeal
pursuant to § 1915(e)(2)(B) because it was “without merit.”
Id. at 121 (internal quotation marks omitted). Confronted
with that unclear dismissal, we said that
a strike under § 1915(g) will accrue only if the
entire action or appeal is (1) dismissed
explicitly because it is “frivolous,” “malicious,”
or “fails to state a claim” or (2) dismissed
pursuant to a statutory provision or rule that is
limited solely to dismissals for such reasons,
including (but not necessarily limited to) 28
U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i),
20
As with a Rule 12(b)(6) dismissal based on failure to
exhaust, a dismissal based on immunity must be with
prejudice, if it is to count as a strike. See supra note 17.
30
1915(e)(2)(B)(ii), or Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
Id. at 126. In announcing that rule, we rejected an alternative
approach under which “courts are permitted to consider the
nature of the dismissal and determine whether the dismissal
fits within the language of § 1915(g),” because we felt that
such an approach would “open the door to more litigation ...
.” Id. Applying the rule, we concluded that our dismissal of
the appeal in question did not constitute a strike, because
“[t]he terms ‘frivolous,’ ‘malicious,’ or ‘fails to state a claim’
were not used to dismiss the appeal” and because “[s]ection
1915(e)(2)(B) is not limited to dismissals that are ‘frivolous,’
‘malicious,’ or ‘fail[] to state a claim.’” Id. (second alteration
in original).
The second question is whether dismissal of some
claims within an action on grounds that would constitute a
strike, without dismissal of the entire action, causes the
prisoner to accrue a strike. Byrd also settled that question,
holding that “a strike under § 1915(g) will accrue only if the
entire action or appeal” is dismissed on one of the enumerated
grounds, or based on a statutory provision that limits
dismissal to one or more of those grounds. Id.; see also id. at
125 (“We agree with the majority of our sister courts of
appeals that § 1915(g) requires that a prisoner’s entire action
or appeal be dismissed on enumerated grounds in order for
the dismissal to count as a strike.”). That rule is consistent
with the plain language of the PLRA’s three strikes provision,
which refers to dismissals of an “action or appeal,” 28 U.S.C.
§ 1915(g), rather than the dismissal of individual claims.21 It
21
Other circuits have come to the same conclusion.
31
is also consistent with the Supreme Court’s interpretation of
the PLRA’s exhaustion provision, 42 U.S.C. § 1997e(a). See
Bock, 549 U.S. at 221 (“As a general matter, if a complaint
contains both good and bad claims, the court proceeds with
the good and leaves the bad. [O]nly the bad claims are
dismissed; the complaint as a whole is not. If Congress meant
to depart from this norm, we would expect some indication of
that, and we find none.” (citation and internal quotation marks
omitted)).
The third question is whether, on appeal, an affirmance
of a dismissal (whether or not it was on grounds that would
cause the prisoner to accrue a strike) counts as a separate
strike. Byrd does not directly address that issue, and we have
not previously resolved it, but we think the answer is clear.
The PLRA three strikes provision speaks of possible strikes
only in terms of “an action or appeal ... that was dismissed”
See, e.g., Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir.
2011) (holding that “§ 1915(g) requires that a prisoner’s
entire ‘action or appeal’ be dismissed on enumerated grounds
in order to count as a strike”); Turley v. Gaetz, 625 F.3d 1005,
1009 (7th Cir. 2010) (holding that “a strike is incurred for an
action dismissed in its entirety on one or more of the three
enumerated grounds”); Pointer v. Wilkinson, 502 F.3d 369,
372-73 (6th Cir. 2007) (holding that “if some claims … were
found to have merit, then the dismissal of other frivolous
claims would not render the dismissal a strike” (internal
quotation marks omitted)); Thompson v. Drug Enforcement
Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (holding that the
plain language of § 1915(g) provides that a plaintiff incurs a
strike only when the entire action is dismissed on one of the
listed grounds).
32
on one of the enumerated grounds, 28 U.S.C. § 1915(g).
Thus,“[u]nder the plain language of the statute, only a
dismissal may count as a strike, not the affirmance of an
earlier decision to dismiss.” Jennings v. Natrona Cnty. Det.
Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). Also, as
noted in Thompson, “[t]he choice of the word ‘dismiss’ rather
than ‘affirm’ in relation to appeals was unlikely an act of
careless draftsmanship,” but rather may be “most plausibly
understood as a reference to section 1915(e)(2), which
requires the court to ‘dismiss the case at any time if the court
determines that ... the action or appeal ... is frivolous or
malicious; [or] fails to state a claim on which relief may be
granted.’” Thompson, 492 F.3d at 436 (emphasis and
alterations in original) (quoting 28 U.S.C. § 1915(e)(2)(B)(i),
(e)(2)(B)(iii)). Therefore, a dismissal of an appeal on one of
the enumerated grounds counts as a PLRA strike, while an
affirmance of a district court’s dismissal does not, even if the
underlying dismissal itself counts as a strike.
The final question is whether a strike accrues as soon
as an action is dismissed, or only when that dismissal has
been affirmed on appeal or the opportunity to appeal has
otherwise come to a close. The statute is silent on whether a
prior dismissal must be final to count as a strike and simply
says that, to bar IFP status, the dismissals need to have
occurred “on 3 or more prior occasions.” 28 U.S.C.
§ 1915(g). But other circuits that have considered the issue
have concluded that a dismissal must be final before it counts
as a strike. See Thompson, 492 F.3d at 439 (noting that “a
dismissal does not become a strike until an appeal thereof has
been resolved or waived”); Jennings, 175 F.3d at 780 (“[A]
§ 1915(e)(2)(B) dismissal should not count against a litigant
until he has exhausted or waived his appeals.”); Adepegba v.
33
Hammons, 103 F.3d 383, 388 (5th Cir. 1996) (“It is
uncontroversial from the plain language of the statute that
Congress intended section 1915(g) only to penalize litigation
that is truly frivolous, not to freeze out meritorious claims or
ossify district court errors. We accordingly read dismissals
under the statute to include only those for which appeal has
been exhausted or waived.”). Cf. Snider, 199 F.3d at 115
(“We also doubt whether the entry of a strike is properly
considered at the time an action is dismissed.”). That rule
makes sense. As the Tenth Circuit recognized, “to count
strikes before the litigant has an opportunity to appeal the
district court’s dismissal is to risk inadvertently punishing
nonculpable conduct.” Jennings, 175 F.3d at 780 (internal
quotation marks omitted). “For example, a ‘hyper-literal’
reading of § 1915(g) to count all district court dismissals as
‘prior occasions’ whether or not the litigant has appealed
those decisions could bar a prisoner’s appeal of an erroneous
third strike, since the appeal would follow three prior
dismissals. Or, an indigent prisoner’s fourth claim could
expire while one or more of his first three dismissals was
being reversed on appeal.” Id. We will therefore follow the
rule of those circuits that hold that a dismissal does not count
as a strike until it has been affirmed on appeal, or the
opportunity to appeal has otherwise concluded.22
22
That rule would, of course, mean that dismissal of an
action that gave rise to an appeal would not count as a strike
for purposes of that appeal, even if it had been on one of the
grounds enumerated in § 1915(g). See Pigg v. FBI, 106 F.3d
1497, 1498 (10th Cir. 1997) (concluding that, because
“‘[p]rior’ is defined in Webster's Ninth New Collegiate
Dictionary as ‘earlier in time,’” the district court erred in
34
4. Tallying Ball’s Strikes for Purposes of
the Present Appeals
Defendants argue that Ball had accrued at least ten
strikes for purposes of these appeals.23 Three of those
counting the plaintiff’s instant action as one of the three prior
actions).
That rule leaves open the question of whether a
prisoner accrues a strike as soon as a dismissal by the district
court is affirmed by a court of appeals, or only when the
Supreme Court has denied or dismissed a petition for writ of
certiorari or the time for filing one has passed. Because there
is no evidence that Ball has filed such petitions, and the time
for filing with respect to the dismissals at issue in these
appeals has passed, we need not resolve that question, though
the logic of our present decision would indicate waiting for
the certiorari period to close is appropriate. See Hafed, 635
F.3d at 1176 (“We now clarify that a strike counts against a
prisoner from the date of the Supreme Court’s denial or
dismissal of a petition for writ of certiorari, if the prisoner
filed one, or from the date when the time to file a petition for
writ of certiorari expired, if he did not.”).
23
Those ten purported strikes are Ball v. SCI Muncy,
No. 08-cv-0391 (M.D. Pa. Dec. 10, 2008); Ball v. Hartman,
No. 09-cv-0844, 2010 WL 597401 (M.D. Pa. Feb. 16, 2010);
Ball v. Butts, No. 11-cv-1068 (M.D. Pa. June 15, 2011),
appeal dismissed as frivolous, 445 F. App’x 457 (3d Cir.
2011) (counting as two strikes); Ball v. Beard, No. 09-cv-
0845 (M.D. Pa. Feb. 3, 2012); Ball v. Campbell, No. 11-cv-
2239, 2012 WL 1979462 (M.D. Pa. June 1, 2012); Ball v.
Giroux, 12-cv-0011, 2012 WL 728069 (M.D. Pa. Mar. 6,
2012); Ball v. Giroux, No. 12-cv-0812, 2012 WL 3597214
35
dismissals24 do not count as strikes because they were not
final when Ball filed the appeals before us now. Three
others25 do not count as strikes for present purposes because
the actions were dismissed after these appeals were filed.
That leaves the District Court’s dismissal of Ball’s complaints
in SCI Muncy, Hartman, and Butts and our dismissal of her
appeal in Butts.
Given the rules set forth in the preceding sections, Ball
has three strikes that bar her IFP status with respect to both of
the appeals before us now.26 First, although the Court
dismissed the complaint in SCI Muncy due to failure to
exhaust, it found that that affirmative defense was plain on
the face of the complaint, because Ball “states that she did not
complete the grievance process.” SCI Muncy, No. 08-cv-
0391 (M.D. Pa.) (Doc. 36, pp. 2-3). Based on that explicit
finding, and because the Court dismissed the complaint on
defendants’ Rule 12(b)(6) motion and we affirmed, that
dismissal caused Ball to accrue a PLRA strike.
In its dismissal of the Hartman action, the District
Court discussed both whether Ball had sufficiently pled the
elements of a § 1983 claim and whether she had alleged a
(M.D. Pa. Aug. 16, 2012); Ball v. D’Addio, 12-cv-0815, 2012
WL 3597249 (M.D. Pa. Aug. 16, 2012); and Ball v. Sisley,
11-cv-0877, 2012 WL 5509899 (M.D. Pa. Nov. 14, 2012).
24
Beard; Giroux, No 12-cv-0011; and Campbell.
25
Giroux, No. 12-cv-0812; D’Addio; and Sisley.
26
The analysis is the same for appeals 12-1067 and 12-
2604, now before us, because the operative strikes all
occurred prior to both of these appeals.
36
cognizable injury-in-fact sufficient for Article III standing.
See supra note 5.27 However, the District Court found that
Ball failed to plead one of the “essential elements” of a
§ 1983 claim because she had not alleged the personal
involvement of the defendants and therefore had not pled
“that the conduct complained of was committed by a person
acting under color of state law.” Hartman, 2010 WL 597401,
at *2; see also id. (“[E]ach named defendant must be shown,
via the complaint’s allegations, to have been personally
involved in the events or occurrences which underlie [the]
claim.”); Hartman, 2010 WL 146319, at * 5 (observing that
there were no factual allegations against one of the
defendants). The Court thus dismissed the case on
defendants’ Rule 12(b)(6) motions for failure to state a claim,
see Hartman, 2010 WL 597401, at *3; Hartman, 2010 WL
146319, at *6-*7, we affirmed, and that dismissal represents
Ball’s second strike.
The District Court’s dismissal of Butts does not count
as a strike because it was based on immunity. See Butts, No.
11-cv-1068 (M.D. Pa.) (Doc. 8) (dismissing the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)). However, we
dismissed the appeal in Butts as frivolous, saying that “[a]n
appeal is frivolous if it lacks an arguable basis either in law or
in fact,” and that Ball’s appeal lacked any such basis because
she had “alleged nothing suggesting that Judge Butts acted in
the clear absence of all jurisdiction.” Butts, 445 F. App’x at
458 (internal quotation marks omitted).28 Because
27
The Court also considered the doctrines of Eleventh
Amendment and quasi-judicial immunity. See supra note 4.
28
We also noted that, “[t]o the extent that Ball’s
request for injunctive relief might not have been subject to
37
frivolousness is an enumerated strike ground, our dismissal of
Ball’s Butts appeal caused her to accrue her third strike. Ball
therefore had three strikes at the time she commenced these
appeals, which would generally bar her from proceeding
IFP.29
B. Imminent Danger of Serious Physical Injury
Even though Ball has three strikes with respect to both
of the present appeals, she may proceed IFP if, at the time she
filed her appeal, she was “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g). Ball alleges danger of
serious injury based on each of the types of mistreatment that
she says she has suffered: burns and bruises sustained at the
dismissal under § 1915(e)(2)(B)(iii) [for immunity], it was
subject to dismissal under § 1915 (e)(2)(B)(ii) [for failure to
state a claim] because such relief is not available against ‘a
judicial officer for an act ... taken in such officer’s judicial
capacity’ ... .” Butts, 445 F. App’x at 458 (first alteration in
original) (quoting 42 U.S.C. § 1983).
29
In August 2012, the District Court revoked Ball’s
IFP status on the ground that she had accrued three strikes,
counting its own dismissals in Hartman and Butts and our
dismissal of the Butts appeal. See Hummel, 2012 WL
3614045, at *1; supra note 9. For the reasons set forth in this
opinion, the Court’s Butts dismissal does not count because it
was based on the immunity of the defendant judge. However,
the District Court could have revoked Ball’s IFP status at the
time it dismissed the Hummel action in August 2012, by
counting its dismissal of SCI Muncy as the third strike.
38
hands of prison personnel, denial of the use of a wheelchair or
cane and of pain medication for her arthritis, lack of proper
treatment for her vision, and exposure to mold and mace that
has aggravated her asthma.
“Before denying leave to proceed IFP, courts must
review a frequent filer’s well-pled allegations to ensure that
the prisoner is not in imminent danger” of serious physical
injury. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.
2003). “The imminent danger exception allows the district
court [or an appellate court] to permit an otherwise barred
prisoner to file a complaint I.F.P. if the prisoner could be
subject to serious physical injury and does not then have the
requisite filing fee.” Abdul-Akbar v. McKelvie, 239 F.3d 307,
315 (3d Cir. 2001) (en banc). Congress included the
exception as a “safety valve for the ‘three strikes’ rule”
because it “[r]ecogniz[ed] that it could take prisoners [with
three strikes] a significant period of time to obtain the filing
fee.” Id.
“‘Imminent’ dangers are those dangers which are
about to occur at any moment or are impending.” Id. “By
using the term ‘imminent,’ Congress indicated that it wanted
to ... prevent impending harms, not those harms that had
already occurred.” Id.; see also Medberry v. Butler, 185 F.3d
1189, 1193 (11th Cir. 1999) (“Congress’ use of the present
tense in § 1915(g) confirms that a prisoner’s allegation that he
faced imminent danger sometime in the past is an insufficient
basis to allow him to proceed in forma pauperis ... .”). The
danger must also be imminent at the time the complaint or
appeal is filed. See Abdul-Akbar, 239 F.3d at 312 (“[A]
prisoner may invoke the ‘imminent danger’ exception only to
seek relief from a danger which is ‘imminent’ at the time the
39
complaint is filed.”); Banos v. O’Guin, 144 F.3d 883, 885
(5th Cir. 1998) (“[T]he language of § 1915(g), by using the
present tense, clearly refers to the time when the action or
appeal is filed ... .”).
Although § 1915(g)’s “imminent danger” exception
might appear clear in theory, in practice it represents an
“amorphous standard.” Ciarpaglini, 352 F.3d at 331. Courts
have found imminent danger when a prisoner was placed near
enemies who had beaten him, Ashley v. Dilworth, 147 F.3d
715 (8th Cir. 1998), when a prisoner suffered headaches and
other symptoms as a result of exposure to dust and lint, Gibbs
v. Cross, 160 F.3d 962 (3d Cir. 1998), and when a prisoner
needed dental care due to an oral infection, McAlphin v.
Toney, 281 F.3d 709 (8th Cir. 2002). The denial or
withdrawal of needed medications can also constitute an
imminent danger. See, e.g., Brown v. Johnson, 387 F.3d
1344, 1346 (11th Cir. 2004) (withdrawal of medications for
HIV and hepatitis); Ciarpaglini, 352 F.3d at 330 (denial of
medication for bipolar, attention deficit, and panic disorders).
But “[c]ourts … deny leave to proceed IFP when a
prisoner’s claims of imminent danger are conclusory or
ridiculous.” Ciarpaglini, 352 F.3d at 331. For example,
complaining two years later of inadequate protection from
reprisals by other prisoners can hardly be said to be an
allegation of “imminent” danger, Heimermann v. Litscher,
337 F.3d 781, 782 (7th Cir. 2003), just as working in
inclement weather may not be “danger” at all, Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Courts also
reject imminent danger claims when a prisoner alleges only a
past injury that has not recurred. See, e.g., Abdul-Akbar, 239
F.3d at 315 (concluding that being sprayed with pepper spray
40
on one occasion is not imminent danger); Abdul-Wadood v.
Nathan, 91 F.3d 1023 (7th Cir. 1996) (concluding that being
given Ibuprofen instead of a stronger pain medication for an
injury that had already healed is not imminent danger). And
“vague and utterly conclusory” assertions that medical
treatment has been withheld, particularly when a prisoner has
been seen repeatedly by a physician, do not amount to a
showing of imminent danger. White v. Colorado, 157 F.3d
1226, 1231 (10th Cir. 1998).
Most of Ball’s allegations plainly fail to demonstrate
imminent danger of serious physical injury that would entitle
her to the exception to the PLRA bar. Her imminent danger
allegation based on burns and bruises that she says she
sustained at the hands of prison personnel is based on a single
past incident, and therefore does not suggest a threat of future
harm. Cf. Abdul-Akbar, 239 F.3d at 315 n.1 (concluding that
a single alleged past assault with pepper spray did not
constitute imminent danger). Also, her allegation that her
injuries from that incident went untreated is not supported by
the record. Her allegations relating to her failing eyesight and
osteoarthritis represent disagreements about the quality of the
medical care that she is receiving which, even if true, are not
sufficient to support an imminent danger claim. See Brown v.
Beard, 492 F. Supp. 2d 474, 478 (E.D. Pa. 2007) (rejecting
imminent danger claim when prisoner “does not dispute that
he is receiving medical attention, but merely disputes the
findings and quality of the treatment he is receiving”).
Moreover, even if poor care for her past injuries, her eyesight,
or her arthritis may prove detrimental to Ball’s health over
time, they do not represent “imminent dangers” which are
“about to occur at any moment or are impending.” Abdul-
Akbar, 239 F.3d at 315.
41
Ball’s allegation of imminent danger based on having
been sprayed with mace is contradicted by the record, see
Ball v. Buckley, No. 11-cv-1829 (M.D. Pa.) (Doc. 81) (noting
that Dr. Famiglio had cleared her for the use of mace, given
her history of assaultive behavior, after balancing her mild
asthma with safety and security needs),30 but her allegation of
imminent danger due to mold in her cell is similar to one that
we have found sufficient to invoke the exception. In Gibbs,
supra, a prisoner alleged that he was forced to breathe
particles of lint and dust that were dispersed into his cell
through the ventilation system. The prisoner claimed to have
been suffering from “severe headaches, changes in voice,
mucus that is full of dust and lint, and watery eyes,” and that,
“depending on the nature of the particles that he is breathing,
there is a significant possibility that he is under imminent
danger of serious physical injury.” Gibbs, 160 F.3d at 965
(internal quotation marks omitted). We rejected the
30
Ball’s mace-based allegation of imminent danger is
also similar to one that we rejected in Abdul-Akbar v.
McKelvie, 239 F.3d 307 (3d Cir. 2001). Ball’s allegation
appears to be based on a single incident in August 2011 that
is the subject of another of Ball’s lawsuits, in which prison
officials used mace to secure her after she refused to answer
direct orders or to uncover the door to her cell when
medications were offered. See Ball v. Buckley, No. 11-cv-
1829 (M.D. Pa.) (Doc. 82). As such, it is insufficient to
support a claim of imminent danger. See Abdul-Akbar, 238
F.3d at 315 n.1 (concluding that a single alleged incident in
which the prisoner was sprayed with pepper spray does not
“suffice to establish ... an ongoing danger” at the time an
appeal was filed).
42
defendant’s argument that the prisoner’s allegations were
merely speculative, and concluded that they were sufficient
for him to claim the benefit of the exception to the PLRA’s
three strikes rule. See id. (“Inmates ought to be able to
complain about unsafe, life-threatening condition[s] in their
prison without waiting for something to happen to them.”
(alteration in original) (internal quotation marks omitted)).
Gibbs, however, is distinguishable. The defendant in
that case did not contradict the prisoner’s allegations as to the
air quality in his cell or the nature of his symptoms, but rather
“attempt[ed] to minimize such allegations by emphasizing
their speculative nature.” Id. We held that, “under our liberal
pleading rules,” a district court must “credit[] those
allegations of ‘imminent danger’ that have gone
unchallenged.”31 Id. at 966. In this case, Dr. Famiglio
testified that Ball is not exposed to mold or other
“environmental elements” and “has not had a reported or
witnessed asthma attack since her incarceration several years
ago.” (App. at 106.) The record also suggests that any
breathing problems that Ball suffered at the time she filed this
appeal may have been due to a fecal bacterial lung infection
(for which she was treated) that was caused by her smearing
herself with her own feces. Those facts tend to refute Ball’s
mold-based imminent danger allegation. Cf. Polanco v.
Hopkins, 510 F.3d 152, 155 (2d Cir. 2007) (concluding that
prisoner’s allegations that he had been exposed to mold in a
shower “cannot support a determination that he was in
31
How Gibbs may be affected by the stricter pleading
standards instituted by the Supreme Court’s decision in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2006), is not a
question we need to address today.
43
imminent danger of serious physical injury” (internal
quotation marks omitted)).
The conflicting statements regarding Ball’s mold-
related imminent danger allegation raise the question of
whether remand is warranted. As we noted in Gibbs,
§ 1915(g) “will often times necessitate further factfinding
proceedings once the imminent danger allegation is
challenged[,] a byproduct of the PLRA most likely not
contemplated by Congress, but which must nonetheless be
handled by the courts.” 160 F.3d at 967 n.8. The Supreme
Court has cautioned that “the in forma pauperis statute ...
accords judges not only the authority to dismiss a claim based
on an indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint’s factual allegations
and dismiss those claims whose factual contentions are
clearly baseless,” such as “claims describing fantastic or
delusional scenarios ... .” Denton, 504 U.S. at 32 (quoting
Neitzke, 490 U.S. at 327-28) (internal quotation marks
omitted). Thus, neither Gibbs nor our other precedents
require us to “accept as having an arguable basis in fact all
allegations that cannot be rebutted by judicially noticeable
facts,” id. (citation and internal quotation marks omitted), or
prevent us from “discrediting factual claims of imminent
danger that are clearly baseless … .” Gibbs, 160 F.3d at 967
(internal quotation marks omitted).32
32
The Supreme Court’s holding that a court may
dismiss a prisoner’s claim if the allegations are “fanciful,
fantastic, [or] delusional,” Denton, 504 U.S. at 32-33 (citation
and internal quotation marks omitted) was limited to the
dismissal of claims as frivolous. But we think that the
underlying reasoning, based on the purpose of the PLRA to
44
Those principles allow us to consider the credibility of
Ball’s mold-related allegations in the context of all of the
facts of this case to determine whether a remand on the
question of imminent danger is necessary. See Taylor v.
Watkins, 623 F.3d 483, 485 (7th Cir. 2010) (“[W]hen a
defendant contests a plaintiff’s claims of imminent danger, a
court must act to resolve the conflict. A contrary conclusion
would mean that a three-strikes plaintiff could proceed IFP
whenever his allegations of imminent danger were facially
plausible ... .”); White, 157 F.3d at 1232 (concluding that the
defendant “has failed to raise a credible allegation that he is in
imminent danger of serious physical harm, and, therefore, he
does not come under the exception to § 1915(g)”). That
approach is particularly appropriate in this case because it has
proceeded through discovery and was disposed of on
defendants’ motions for summary judgment. See Denton, 504
U.S. at 33 (noting that a prisoner’s “improbable allegations
might be properly disposed of on summary judgment” and
after “factual development”).
Based on the record before us, we conclude that Ball’s
mold-related allegations are not sufficiently credible to
warrant remand. Her medical records and the testimony of
Dr. Famiglio cast serious doubt on whether she had actually
been exposed to mold at the time she filed this appeal and,
even if she had been, whether it had the effect she alleges,
given that she suffered from “no current [medical] conditions
requiring regular monitoring let alone treatment.” (App. at
reduce frivolous prisoner litigation, applies equally to factual
allegations of imminent danger that would permit a prisoner
to avoid the application of the PLRA’s three strikes provision.
45
89.) Moreover, by her own admission, Ball “see[s] and
hear[s] things not there,” and “can’t think clearly.”
(Magistrate’s Judge’s Report at 1 (quoting Ball v. Beard, No.
09-cv-0845 (M.D. Pa.) (Doc. 42, pp. 6-7)) (internal quotation
marks omitted).) Ball’s admitted “cognitive problems and
disorders,” id., make her claims of exposure to mold and
resulting asthma attacks less believable than they might
otherwise be.33 Lastly, Ball has provided no evidence to
support her mold-related allegations – or any of her other
physical injury allegations – in either of her motions
regarding imminent danger. Because a prisoner claiming that
she is in imminent danger of serious physical harm must
“make specific [and] credible allegations to that effect,”
Childs v. Miller, 713 F.3d 1262, 1267 (10th Cir. 2013)
(alteration in original) (internal quotation marks omitted), and
Ball has failed to do so, the imminent danger exception does
not apply, and her three PLRA strikes bar her from IFP status
for purposes of these appeals.
33
We are not implying that prisoners with delusions
are to have their allegations disregarded for that reason alone.
While an admittedly delusional plaintiff may face credibility
challenges based on the existence of his or her delusions, the
record ought otherwise provide some support for a negative
determination on credibility before the court entirely
discounts the claim of imminent danger. We also do not
suggest that a credibility determination may be based on a
prisoner’s prior litigation history alone. See Gibbs, 160 F.3d
at 966 (“Congress [in enacting § 1915(g)] was clearly
concerned with continuing to afford in forma pauperis filing
status to inmates who had a history suggestive of abusing the
judicial system.”).
46
III. CONCLUSION
For the foregoing reasons, we will deny Ball’s request
to proceed IFP on these appeals. Unless she pays the
docketing fee within 14 days of the judgment rendered
herewith, these appeals will be dismissed pursuant to Third
Circuit L.A.R. 107.1(a). Ball’s motion for appointment of
counsel will be denied without prejudice.
47 | 01-03-2023 | 08-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/755890/ | 149 F.3d 1033
98 Cal. Daily Op. Serv. 5579, 98 Daily JournalD.A.R. 7795UNITED STATES of America, Plaintiff-Appellee,v.Juvenile, L.M.K., Defendant-Appellant.
No. 97-50312.
United States Court of Appeals,Ninth Circuit.
Argued May 7, 1998.Decided July 16, 1998.
Steven F. Hubachek, Assistant Federal Public Defender, San Diego, California, for defendant-appellant.
Jeffrey A. Taylor, Assistant United States Attorney, San Diego, California, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California; Howard B. Turrentine, District Judge, Presiding. D.C. No. CR-97-00307-1-HBT.
Before: CANBY, NOONAN and KLEINFELD, Circuit Judges.
NOONAN, Circuit Judge:
1
Lisa, a juvenile, appeals her adjudication as a juvenile delinquent and her confinement until her eighteenth birthday, April 21, 1999.
FACTS AND PROCEEDINGS
2
Lisa's experience of federal law enforcement began about 5:00 a.m., the morning of January 27, 1997 when she was a passenger in a car driven by Maria Del Refugio Medina-Sanchez returning to the United States from Tijuana. Lisa was 15, another girl in the car was 14, Medina was an adult. The three indicated they had been "partying." The car they were in had a license plate matching a number placed on "lookout" for heroin smuggling. The three were escorted to the security office.
3
A pat down found three packages of heroin concealed in Lisa's pants and two more packages in Medina's pants. The three were detained until Customs Senior Special Agent Peter Darvas arrived at about 6:20 a.m. Darvas gathered information about the incident but took until 8:30 a.m. before he spoke with Lisa for the first time to establish identification information and her condition. He attempted to get her parents' address or phone number, but she said she lived with Medina and did not know how to contact her parents. She added that she was a methamphetamine user and had used methamphetamine before returning from Mexico. After the initial questioning, Darvas placed Lisa under arrest.
4
At approximately 11:30 a.m. Darvas resumed his interview of Lisa. Lisa signed a waiver of rights at 11:51 a.m. Approximately ten to fifteen minutes into the interview, she gave Darvas her father's telephone number. When Darvas asked if she wanted him to call her father or go on with the questioning, she said she did not want him called and agreed to continue. Darvas did not call her father.
5
Lisa informed Darvas that she had not slept since the night before and had not eaten since 8:00 a.m. the day before. She stated Medina had given her the packages that she had brought into the United States. The interview ended around 1:00 p.m. At about 2:30 p.m. Darvas interviewed the other girl. At some time after 4:00 p.m. both girls were transferred to San Diego Juvenile Hall. They were arraigned before a magistrate judge at 2:00 p.m. the following day.
6
Lisa moved to suppress the incriminating statements made to Darvas, to dismiss the information, and to suppress the evidence seized. The motions were denied. After a bench trial, the district court found her to be a juvenile delinquent. Her motion for a new trial was denied.
7
Lisa appeals.
8
The Government's Failure to Arraign Lisa Forthwith. The Federal Juvenile Delinquency Act, 18 U.S.C. § 5033, provides that a juvenile taken into custody "shall be taken before a magistrate forthwith" and that "[i]n no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate." "Forthwith" means "with dispatch" or "immediately." The term is slightly qualified by the statute implying that there may be an elapse of "a reasonable period of time" before the arraignment.
9
In the present case no one could say that Lisa was arraigned forthwith. She was held 33 hours without being arraigned. The government produces no facts that would allow us to believe this delay was reasonable.
10
Testifying at the evidentiary hearing, Darvas said he was careful because of the significant amount of heroin involved. He failed to give any testimony showing how this extra care caused the delay; he did not even account adequately for the time between his arrival and his first interview of Lisa. Far from being careful to obey the command of the statute, he appears to have proceeded at a pace that was indifferent to the requirement of immediate arraignment.
11
We have on occasion accepted the government's excuses when the government showed exigent circumstances and did not use the defendant's pre-arraignment statement. United States v. Doe, 701 F.2d 819, 824 (9th Cir.1983) (Doe I). We have found clear violation of the requirement where the delay was 36 hours and exigent circumstances were not present. United States v. Doe, 862 F.2d 776, 780 (9th Cir.1988) (Doe II). Section 5033 was violated.
12
Lisa also objects that Darvas did not make reasonable efforts to notify her parents. She, of course, prevented him from doing so at first. She later agreed to continue the interview with him without his calling her father, but the statute does not permit the juvenile to waive notification of the parents. Darvas should have called her father. His failure to do so is a second violation of § 5033.
13
Where the government violates the requirements of the Juvenile Delinquency Act, this court considers whether the government's conduct was so egregious as to deprive the juvenile of his or her right to due process of law. Id. at 779. If the defendant's constitutional due process rights were violated, reversal is mandatory. Id. at 780. If not, the court considers whether the violation prejudiced the defendant. Id. at 779. If the defendant was prejudiced, we have discretion to reverse or to order more limited remedies. Id. at 780-81. We may also remand for a determination of prejudice if the record is insufficient to make a finding regarding prejudice. Id. at 781.
14
In this case neither failure of the government is of such an outrageous character as to have denied Lisa due process of law and require dismissal of the charge. While Lisa's statements should have been suppressed, we find that their admission was harmless. The officers discovered heroin concealed on Lisa's person before they committed the violations of § 5033. Her prosecution would have followed even without her statement, see id. at 783 (Wallace, J., concurring and dissenting), and it is more probable than not that the admission of her statements did not materially affect the determination of delinquency, see United States v. Rahm, 993 F.2d 1405, 1415 (9th Cir.1993).
15
Lisa also argues that the government should have collected and preserved evidence showing that she was intoxicated when she returned to the country at 5:00 a.m. on January 27. The evidentiary hearing that explored this point did not produce a preponderance of evidence that she was in fact intoxicated. Darvas, for example, found her tired but not drunk or high. Lisa makes an inadequate showing that she was in a condition that would have put the government under any obligation to gather evidence showing she could not have intentionally imported the heroin.
16
Lisa also objects that the government distorted her trial by trying her before the other girl with the result that her friend said she would invoke the Fifth Amendment if called to testify at Lisa's trial. The government's intention was to go ahead with the other's case until Lisa in her own trial exonerated the other. No culpable distortion of the fact finding process has been demonstrated, and no need existed to have an evidentiary hearing on Lisa's allegation.
17
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/755892/ | 149 F.3d 1041
8 A.D. Cases 481, 98 NDLR P 126, 98Cal. Daily Op. Serv. 5644,98 D.A.R. 7850
Jerry HUNSAKER, Jr.; Hubert Hardge; Martha Jensen,Plaintiffs-Appellees,v.CONTRA COSTA COUNTY; The Contra Costa County HealthServices Department; The Contra Costa County SocialServices Department; Philip Batchelor, Contra Costa CountyAdministrator, in his individual and official capacities;Robert Hofmann, Interim Director, Contra Costa County SocialServices Department, in his official capacity; MarkFinucane, Director, Contra Costa County Health ServicesDepartment, in his official capacity, Defendants-Appellants.
No. 97-16542.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 9, 1998.Decided July 20, 1998.
Bernard Knapp, Deputy County Counsel, Office of County Counsel, Martinez, CA, for defendants-appellants.
David J. Berger, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-95-01082-MMC.
Before: WALLACE, T.G. NELSON, and KLEINFELD, Circuit Judges.
WALLACE, Circuit Judge:
1
Contra Costa County and several of its administrators (County) appeal from a permanent injunction. Hunsaker and others in the plaintiff class (Hunsaker) obtained the injunction which prevented the County from administering the Substance Abuse Screening Inventory (test), a pen-and-paper screening test, to applicants for the County's general assistance program. According to Hunsaker, the test had a disparate impact on recovered and recovering drug and alcohol addicts and thus violated the Americans with Disabilities Act (Act).
2
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1343 and 1367. The County timely appealed, and we have jurisdiction under 28 U.S.C. § 1292(a)(1). We reverse and remand.
3
* In accordance with state law, the County provides general assistance benefits to the indigent and requires chemically dependent beneficiaries to participate in General Assistance Alcohol and Drug Diversion Services (program), a treatment program. See Cal. Welf. & Inst.Code §§ 17000, 17006. In 1992, the County began using the test to screen beneficiaries to determine participation in the program. The usefulness and motives behind the County's use of the test are disputed by the parties.
4
In 1995, Hunsaker filed suit, after which the parties agreed to a joint study to examine the test's effectiveness in classifying individuals as chemically dependent. After the completion of the study, the County added an additional step in the screening process: all individuals identified as chemically dependent by the test are required to participate in a clinical interview. Hunsaker does not contest the accuracy of the interview in assessing chemical dependency. Only those individuals determined to be chemically dependent by the interview are required to participate in the program.
5
Hunsaker asserts that the test identifies a disproportionate number of recovering and recovered addicts as false positives for chemical dependence. The recovered or recovering addicts are then allegedly burdened by being required to participate in the interviews in order to obtain general assistance benefits. The district court agreed that this violates 42 U.S.C. § 12132, and entered a permanent injunction preventing the use of the test as a screening device.
II
6
We review permanent injunctive relief for an abuse of discretion or application of erroneous legal principles. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1493 (9th Cir.1996).
7
The district court held that the test disparately impacted recovering and recovered alcohol and drug addicts, which are protected classes under the Act. 28 C.F.R. § 35.131. The County does not contest that recovered and recovering drug and alcohol addicts are disproportionately identified as false positives by the test, but argues that disparate impact alone is insufficient to create a prima facie case and that Hunsaker should also have been required to show that the test denied "meaningful access" to public benefits.
8
The "meaningful access" requirement stems from Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985) (Alexander ), which was decided under section 504 of the Rehabilitation Act of 1973. In Alexander, the Court "reject[ed] the boundless notion that all disparate-impact showings constitute prima facie cases under § 504. " Id. at 299, 105 S. Ct. 712. The Court struck a balance between making all or no disparate impacts actionable under the statute preventing discrimination: "The balance struck ... requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers." Id. at 301, 105 S. Ct. 712.
9
We explicitly applied the interpretation given in Alexander to the statute at issue here, 42 U.S.C. § 12132, in Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir.1996) (Crowder ). In Crowder, we struck down Hawaii's animal quarantine requirement because it disproportionately burdened the visually impaired and denied them "meaningful access to state services, programs, and activities." Id. Crowder clearly established that "section 12132 requires the state to provide 'meaningful access' to state services, programs, and activities for the disabled." Ackley v. Corporation of State of Ariz., 98 F.3d 461, 462 (9th Cir.1996); accord Weinreich v. Los Angeles Cty. Metro. Trans. Auth., 114 F.3d 976, 979 (9th Cir.1997).
10
The district court found that Hunsaker failed to show a denial of "meaningful access." That finding is not clearly erroneous. Denial of "meaningful access" is a necessary element of an actionable disparate impact claim. Because the test did not deny Hunsaker meaningful access to general assistance benefits, the district court abused its discretion, and we therefore reverse the order granting a permanent injunction.
11
Hunsaker urges us to ignore this basic element of Crowder and instead focus on the regulations at issue, as the district court did. The language contained in 28 C.F.R. § 35.130(b)(8) is, on its face, broad in scope:
12
A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.
13
The Justice Department's commentary to this particular regulation states that it "prohibits policies that unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others." 28 C.F.R. pt. 35, App. A at 468 (1997) (emphasis added). Read literally, the language of this regulation and its commentary would seem to require only that protected individuals demonstrate that a screening test imposes any additional burden on them in order to present a prima facie violation of the Act. However, the regulation cannot be interpreted independently of the statute under which is was promulgated: 42 U.S.C. § 12132. Such a minimal showing of the burden imposed on members of the protected class would violate the Supreme Court's rejection of the "boundless notion that all disparate-impact showings constitute prima facie" violations of the Act. Alexander, 469 U.S. at 299, 105 S. Ct. 712. Though the regulations cited by Hunsaker do not mention denial of meaningful access, these regulations do not eliminate the need to show a denial of meaningful access under section 12132, as interpreted by the courts, in disparate impact cases. While regulations may impose additional or more specific requirements, they cannot eliminate statutory requirements. See Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir.1996). In considering only the language of the regulations without acknowledging the requirements imposed by the relevant statutory language and applicable precedent, the district court committed error.
14
Hunsaker also suggests that we ignore or attempt to distinguish binding Supreme Court and Ninth Circuit precedent in favor of various published and unpublished district court opinions. All of these cases involve tests for professional licensing or selection using disability-related questions. E.g., Clark v. Virginia Bd. of Bar Examiners, 880 F. Supp. 430 (E.D.Va.1995); Doe v. Judicial Nominating Comm'n, 906 F. Supp. 1534 (S.D.Fla.1995) (Doe ); Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489 (S.D.Fla.1994); Medical Soc'y of New Jersey v. Jacobs, 2 A.D. Cases 1318, 3 A.D.D. 207, 4 NDLR p 220, 1993 WL 413016 (D.N.J.1993) (Medical Society ).
15
None of these cases is controlling. Although they all involved screening tests, none involved a disparate impact claim. These cases instead concern adverse action against a disabled individual because the group administering the screening test "substitut[ed] an impermissible inquiry into the status of disabled applicants for the proper, indeed necessary, inquiry into the applicants' behavior." Doe, 906 F. Supp. at 1541; see also Medical Society, 1993 WL 413016 at * 1 ("Plaintiff claims that asking the challenged questions is an unlawful inquiry into the existence of a disability, and that making licensing decisions based on affirmative answers to the questions is discrimination on the basis of disability. ..."). There is no evidence in any of these cases that plaintiffs brought or courts examined disparate impact claims.
16
Unlike the cases Hunsaker relies on, the case at hand does involve a disparate impact claim, as did Alexander and Crowder. We are bound by those cases' requirement that disparate impact discrimination is actionable only if it involved a denial of "meaningful access" to public benefits.
17
Hunsaker also seeks to uphold the injunction on a state law ground. The district court did not rule on this claim, and we have nothing to review. We should allow the district court to consider this claim in the first instance or, in its discretion, decline to exercise supplemental jurisdiction.
18
REVERSED AND REMANDED. | 01-03-2023 | 04-18-2012 |