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https://www.courtlistener.com/api/rest/v3/opinions/4038879/	FILED 14-0786 12/24/2014 1:23:20 PM tex-3589887 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK CASE NO. 14–0786 _____________________________________________ IN THE SUPREME COURT OF TEXAS _____________________________________________ WORLDWIDE CLINICAL TRIALS, a/k/a WTC CORPORATION, Petitioner V. HERLINDA ARNOLD, Respondent _____________________________________________ On Petition for Review from the Fourth Court of Appeals, San Antonio, Texas, Case No. 04–13–00609–CV _____________________________________________ RESPONDENT’S MOTION FOR EXTENSION OF TIME TO FILE RESPONSE TO PETITIONER’S PETITION FOR REVIEW _____________________________________________ Respondent, Herlinda Arnold, requests a 30-day extension to file her response to Petitioner’s Petition for Review and for good cause, would show as follows: 1. The Fourth Court of Appeals issued its opinion and judgment in the underlying appeal, Case Number No. 04–13–00609–CV, on August 13, 2014. 2. After being granted three extensions of time, Petitioner filed its Petition for Review with this Court on November 25, 2014. 3. Respondent’s response to Petitioner’s Petition for Review is December 24, 2014. 4. This is Respondent’s first request for an extension of time. 5. Respondent respectfully requests a 30–day extension to file its response so that the undersigned attorneys can adequately prepare the response. 1 6. The undersigned attorneys have not had sufficient time to respond to Petitioner’s Petition for Review due to the Thanksgiving holidays, taking time off for vacation and hearings and obligations in other cases. 7. Pursuant to TEX. R. APP. P. 10.3, the undersigned attorneys conferred with counsel for Petitioner, but have yet to receive a response from opposing counsel with regard to whether he is opposed to this motion. FOR THESE REASONS, Respondent prays that this Honorable Court grant this Motion for Extension of Time to File Response to Petitioner’s Petition for Review and extend the deadline for filing the response to January 26, 2014, and requests all other relief to which she may be entitled. Respectfully submitted, Ecke and Poling, PLLC By: ______/s/____________________ Joseph R. Ecke SBN: 24082946 1203 Buena Vista #201 San Antonio, Texas 78207 Email: joe.ecke@gmail.com Ph. (210) 645-5356 Fax (210) 775-6490 Law Office of Matthew S. Norris By: ______/s/____________________ Matthew S. Norris 2 TBA No. 24076881 6243 IH-10 West, Suite 1010 San Antonio, Texas 78201 Email: mattnorrislaw@gmail.com Ph. (210) 549-7633 Fax (210) 446-4482 ATTORNEYS FOR RESPONDENT CERTIFICATE OF SERVICE I certify that a true and correct copy of the above has been served to all interested parties of record on this the 24th day of December 2014. Sean Michael Reagan sreagan@lpmfirm.com 9545 Katy Freeway, Suite 200 Houston, Texas 77024 ______/s/____________________ Joseph R. Ecke 3	01-03-2023	09-28-2016
https://www.courtlistener.com/api/rest/v3/opinions/1648718/	251 Miss. 780 (1965) 171 So.2d 358 MUTUAL OF OMAHA INSURANCE COMPANY v. WALLEY No. 43316. Supreme Court of Mississippi. February 1, 1965. 781 Watkins & Eager, Jackson, for appellant. Zachary & Weldy, Hattiesburg, for appellee. 782 JONES, J. Appellee, Walley, suffering with tuberculosis, sued appellant to recover sickness benefits on a policy which defined "sickness" as follows: "Sickness contracted while this policy is in force and more than 30 days (90 days in case of heart trouble, hernia, tuberculosis or any disease or disorder of the female generative organs) after the Policy Date." The policy was dated July 2, 1962, so that the ninetieth day would be September 30, 1962. On September 23 appellee suffered a collapsed left lung. He was working at a hospital in Hattiesburg, but when he became sick he called his family doctor, Dr. Moak, at Richton. On September 24 an X-ray was taken and the collapsed lung was found. Thereupon he was sent to the hospital at Hattiesburg for treatment. X-rays were taken on September 24, 25, 26, 28 and 29. Each showed a spot on his right lung, which was first discovered on September 24. The collapsed lung was recovering and re-inflating, but while treating the collapsed lung, the doctors were testing to discover the reason for the spot. Tuberculosis was one disease suspected but others were not excluded. A skin test was taken and proved negative; a sputum smear was also negative. A sputum culture was then had. The appellee and his wife each testified that the sputum was gotten at the hospital on September 30. The doctor first thought it was taken October 1, but then admitted that he did not know whether it was obtained while appellee was in the hospital or after he went home. Appellee was discharged from the hospital on September 30, so it was uncontradicted that the sputum was coughed on September 30. However, evidently in an effort to follow the general rule hereafter stated, the court submitted to the jury the question as to whether the disease became manifest or active on 783 September 30 or October 1. The sputum was used not only for the smear test, but also to culture, which requires several weeks. By culture is meant, as we understand, a process which, if germs are present, causes them to grow and become visible. The spot on the lung, discovered September 24, led to the sputum culture. On November 13, 1963, it was found that the active germs of tuberculosis were in the sputum obtained September 30. The doctors thereupon testified positively that appellee had active tuberculosis on September 30. It is evident that the spot on the lung found September 24 was the manifest condition which led to the finding of the active germs in the sputum of September 30. (Hn 1) The general rule is stated in 29A Am. Jur. Insurance § 1156 (1960): "Provisions Relation to Inception of Sickness, Disease, or Disability. Some insurance policies covering sickness and hospitalization exclude or limit liability in case of a disease originating before a certain time stated in the policy. Such clauses are valid and enforceable. (Hn 2) In accordance with the general rule that in determining what losses are covered by disease or sickness insurance, uncertain or ambiguous provisions will be construed most favorably to the insured, (Hn 3) the illness, disease, or disability will ordinarily be deemed to have its inception when it first becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the disease, so that recovery can be had even though the infection or disease germs were present in the body prior to the expiration of the excluded period, if they were latent, inactive, and perhaps not discoverable." See also, 45 C.J.S. Insurance § 893. The cases of Union Bankers Ins. Co. v. May, 227 Miss. 881, 87 So.2d 264 (1956) and Provident Life & Accident Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180 (1929), committed this Court to this general rule. 784 (Hn 4) Stress is laid upon the fact there was no definite and positive diagnosis until November 13, 1962, when the 90-day period had passed. However, the condition which led to the final diagnosis and positive proof of tuberculosis became manifest and was found several days prior to the expiration of such period and the sputum containing the active germs was taken before such expiration. In the case of Mutual Benefit Health & Accident Ass'n. v. Ramage, 293 Ky. 586, 169 S.W.2d 624 (1940), it was months after the expiration of the exclusion period that doctors saw or examined the insured and discovered that he had tuberculosis. There was a difference of opinion as to whether it was active or manifest before the effective date of the policy as to tuberculosis. The jury there found for the insured on the conflicting expert opinions. However, we quote the following from that case at page 626: "Under the wording of the policy the disease originates when it becomes active or there exists a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the disease as tuberculosis." In the case now before us the jury returned a verdict for appellee and from the judgment rendered thereon appellant appealed. Since there was in reality no conflict in the evidence, the lower court should have granted the peremptory instruction requested by appellant. We reverse the case and enter judgment here for appellant. Reversed and judgment here for appellant. Kyle, P.J., and Gillespie, Rodgers and Brady, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1648721/	171 So.2d 169 (1965) STATE of Florida, Appellant, v. MANATEE COUNTY PORT AUTHORITY, Appellee. No. 33668. Supreme Court of Florida. January 20, 1965. 170 Frank Schaub, Beadenton, for appellant. Goodrich, Hampton & Boylston, Beadenton, for appellee. THORNAL, Justice. We have for review by appeal, a decree of the Circuit Court validating an issue of revenue bonds to finance the construction of "Port Facilities" in Manatee County. We are called upon to consider the legality of the existence of the issuing agency and the sufficiency of the description of purposes to be accomplished by the financing program. By resolution adopted June 24, 1963, the Board of County Commissioners of Manatee County designated itself as a Port Authority under Chapter 315, Florida Statutes, F.S.A. By a subsequent resolution, adopted July 8, 1964, the same Board, acting as the governing body of the Manatee County Port Authority, adopted a comprehensive resolution authorizing the issuance of revenue bonds to finance the construction and acquisition of port facilities in the Piney Point area of Manatee County. This resolution authorized the issuance of $750,000 in revenue bonds to be secured by a pledge of the income of the facilities, supported by an additional pledge of race track revenues payable to the county, pursuant to Chapters 550-551, Florida Statutes. It included an estimate of $100,000 per year as gross receipts from the facility and an annual income of $225,000 from race track revenue. The bonds are to be dated July 1, 1964 and mature July 1, 1999, subject to certain redemption privileges. By a subsequent resolution adopted July 17, 1964, the Board of County Commissioners, as such, approved and confirmed the bond resolution and specifically recognized the proposed securities as county obligations within the limits prescribed by the resolution. A motion to dismiss the petition for validation was denied. After hearing, the Circuit Judge entered a decree validating the issue. The State now seeks reversal of this decree. Primarily, the State contends that the Manatee County Port Authority cannot issue the bonds because it has no separate existence as a legal entity. It further asserts that the petition and authorizing resolution failed to describe, with reasonable definiteness, the purpose for which the bond proceeds are to be used. By its initial resolution the Board of County Commissioners constituted itself a Port Authority under the provisions of Chapter 315, Florida Statutes, F.S.A. Under this Act, and by the resolution, the Port Authority is not a separate governmental agency. Chapter 315, Florida Statutes, F.S.A., is obviously a general authorizing enactment to provide for the accomplishment of the public objectives therein described. When a board of county commissioners constitutes itself into a Port Authority under the act, it does not thereby purport to bring into being an autonomous governmental unit. The Manatee County Port Authority is not a separate political subdivision. It is, in reality, merely the Board of County Commissioners functioning under a different name for administrative purposes. The Commissioners simply take on additional duties as a Port Authority under the authorizing statute. Burton v. Dade County, Fla., 166 So.2d 445. These additional functions are logically incidental to the other functions of the Board as the governing agency of the county. We find no merit to the attack on the validity of the existence of the authorizing agency. The bond resolution recites that it was adopted pursuant to Chapter 315, Florida Statutes, F.S.A. It clearly provides that its intended purpose is to accomplish the construction of the public facility described by statute. It authorizes the construction 171 of "Port Facilities" in the Piney Point area. It provides for land acquisition and the construction of port improvements. It is clear that it is contemplated that the port facilities to be constructed are those specifically defined by Section 315.02(6), Florida Statutes, F.S.A. Nowhere does it appear that there is any purpose to pledge the public credit for private functions in violation of Article IX, Section 10, Florida Constitution, F.S.A. The project to be constructed under the resolution is inseparably tied to the definition of "Port Facilities" defined by Section 315.02(6), supra. Any subsequent deviation from this definitive specification of port facilities would be in violation of the limitations built into the resolution itself. These port facilities defined by the statute and prescribed by the resolution, provide for the accomplishment of public purposes and objectives. The authorizing resolution, therefore, reasonably defines the proposed facility with sufficient specificity to identify the project. Similarly, it precludes any inference of an intention to devote the bond proceeds to a purely private enterprise. The project described in the resolution is clearly that defined as port facilities in Section 315.02(6), supra. The resolution thereby avoids the vice of indefiniteness condemned by State v. Suwannee County Development Authority, Fla., 122 So.2d 190. It is further suggested that the record fails to support a conclusion that the proposed project is fiscally sound. We have held that the fiscal feasibility of a revenue project is an administrative decision to be concluded by the business judgment of the issuing agency. Such problems as the advisability of the project and its income potential, must be resolved at the executive or administrative level. They are beyond the scope of judicial review in a validation proceeding. Town of Medley v. State, Fla., 162 So.2d 257. We, therefore, disclaim any judicial responsibility for the fiscal integrity of the proposed project. As we stated in Medley, a decision on this aspect of revenue financing is one to be made by the people involved, acting through their proper executive or administrative officials. The function of a validation proceeding is merely to settle the basic validity of the securities and the power of the issuing agency to act in the premises. Its objective is to put in repose any question of law or fact affecting the validity of the bonds. State v. Suwannee County Development Authority, supra; North Shore Bank v. Surfside, Fla., 72 So.2d 659. We note in passing that the resolution and validating decree expressly preclude any obligation of the ad valorem taxing power of the county. We have examined other incidental procedural questions presented by the appeal. They do not justify a reversal. We consider an extensive discussion of them to be unnecessary. Finding the validation decree to be without error, it is affirmed. It is so ordered. THOMAS, ERVIN and HOBSON (Ret.), JJ., concur. DREW, C.J., dissents in part. O'CONNELL, J., dissents. CALDWELL, J., dissents with Opinion. CALDWELL, Justice (dissenting). I must dissent. The description and proof of the purposes for which the proceeds of the bond issue are to be used are fatally inadequate. The broad language of the resolution and the statute does not put the public upon sufficient notice of what is intended. The majority holding to the contrary clashes with the decision of this Court in State v. Suwannee County Development Authority, 122 So.2d 190, 193 (Fla. 1960) in which it was held: "[C]ommon sense impels the conclusion that the issuing governmental agency should set forth in the petition *172 for validation of bonds or revenue certificates a description of the purpose for which the proceeds are to be used, which description should be sufficiently detailed to enable a member of the public and the state to determine whether the issuing agency can lawfully expend public monies therefor." The vague and general statement as to the nature of the facilities proposed does not afford the public an opportunity to safeguard its essential interest in the development. DREW, C.J., and O'CONNELL, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/748930/	131 F.3d 144 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Eugene FITZHUGH, Appellant. No. 97-3121. United States Court of Appeals, Eighth Circuit. Submitted Dec. 5, 1997.Filed Dec. 10, 1997. Appeal from the United States District Court for the Eastern District of Arkansas. Before BOWMAN, BEAM, and LOKEN, Circuit Judges. PER CURIAM. 1 Eugene Fitzhugh, previously sentenced to ten months of imprisonment and one year supervised release for a bribery conviction, appeals from the District Court's1 order denying his motion to reconsider his sentence based on his deteriorating health. Fitzhugh filed the motion during the pendency of his appeal from the ten-month sentence itself. Concluding it lacked jurisdiction to reconsider Fitzhugh's sentence, the District Court issued an order denying the motion. 2 Upon review of the record and the parties' submissions on appeal, we affirm the District Court for the reasons stated in its order. See 8th Cir. R. 47B. 1 The Honorable Stephen M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/1648723/	251 Miss. 847 (1965) 171 So.2d 517 ALEXANDER v. STATE No. 43460. Supreme Court of Mississippi. February 8, 1965. L.L. Puryear, Thomas V. Dixon, Senatobia, for appellant. 848 G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee. 849 BRADY, TOM P., J. This is an appeal from the Circuit Court of Tate County, Mississippi by the appellant, who was convicted of the murder of one Ruby Jackson, another man, and was sentenced to serve a life term in the state penitentiary. The appellant employed counsel to represent him in the circuit court, and the court appointed the same counsel to represent him in this appeal, since appellant filed a pauper's affidavit. A careful study of the record reveals the following facts: Appellant had been out all night drinking, and he was driving with his son on a road past where the deceased, Ruby Jackson, had driven some cows out of Jackson's cornfield, with the help of another, and was heading them down the road. Appellant was accommodating a friend named Willie T. Williams by carrying him toward his home, and the appellant stopped and spoke to one Emmit Jackson, who was herding the cattle, and told him to tell the deceased, Ruby Jackson, that he would be back in a few minutes. The record indicates that on a previous occasion Ruby Jackson had complained to appellant about some damage which appellant's mule had done in Ruby Jackson's cornfield. The appellant had deposited his friend, Williams, and had driven to Emmit Jackson's home when the appellant's son, Larry Alexander, came and asked to be permitted to use the car. Appellant permitted his son, Larry, to drive the car, and the record indicates that he instructed Larry to take him to the deceased's, Ruby Jackson's, home. Appellant and his son testify that he went in 850 order that he might pay the deceased for the damage which his mule had done to his cornfield. The evidence is conflicting as to whether appellant knocked and was invited in or whether he went in without invitation, the witness Rossom testifying that the deceased told the appellant, "Go on back, I don't want you to come in my house." It is in conflict also with reference to the statements which appellant made when entering the deceased's home and with reference to the attitude of the appellant. The testimony is in conflict as to whether or not the appellant at this time had in his pocket an open knife which he had concealed, but which was seen at the time by the witness, Emmit Jackson, who was a relative of the deceased. Abusive vile and profane language was used by both the appellant and the deceased. Though the evidence is conflicting, nevertheless the record indicates that the appellant was obviously angry with the deceased for the complaints which the deceased had made about appellant's mule being in the cornfield, when the deceased had not complained about the stock of others which also had gotten into his cornfield. Emmit Jackson testified that once or twice the appellant, with his knife opened but concealed in his hand, started toward the deceased; that he told him, "Don't come across here with that knife like that," and that he then suggested to the deceased that he go outdoors with him, saying: "Now, I can't stop Dub (the appellant) ... Ruby, you come on. I can talk to you, but I can't talk to Dub ... I told Dub, I said, don't you come out here." The evidence is conflicting in that Emmit Jackson said he suggested this in order that he could talk to the deceased, in the hope that he might prevent a difficulty or violence. The appellant, on the other hand, testified that Emmit Jackson suggested that they go outside in order that they might there finish the thing, meaning, to fight it out to a finish. State's proof was that the appellant was at that 851 time concealing an open knife by holding it in his hand with the blade sticking up his sleeve but that the deceased had no weapon of any kind. Appellant admits that as he left the house he opened his knife and put it in his pocket with the blade open, stating that he feared what Emmit Jackson and the deceased might do to him. On the outside a cursing match took place again and some very vile epithets were used by both the appellant and the deceased. The deceased finally told the appellant not to use certain vile language toward him again: "You call me that again, and I will slap the hell out of you." The appellant did so, and the record is in dispute as to whether or not the deceased slapped at the appellant, striking the bill of his cap with his left hand opened, or whether he struck at him with his closed fist and hit him on the side of his face and his eye. At any rate, the record discloses that the deceased was not armed, though there was lying on the ground two or three steps from him a hand ax; that the appellant sprang forward and struck the deceased one blow with the blade of his knife, plunging it into his heart. The deceased staggered back and slumped down, attempted to pick up the hand ax, was able to raise it a foot or more from the ground, and then fell and was caught by his friend, John Rossom, who had gone out of the house with him and the appellant. The record shows that the deceased died almost instantaneously; he was picked up and carried and put into the appellant's car and the appellant and his son then took him to the office of Dr. Ethelyn Smith, who stated that the deceased was dead and had died almost instantaneously, there being very little bleeding, from a blow or an incision in his heart. The appellant employed counsel to represent him and then surrendered to the sheriff and was placed in jail. The appellant admitted to Dr. Smith that he had stabbed the deceased 852 and he admitted to the sheriff and the deputy also that he had stabbed the deceased. Immediately after he had stabbed the deceased and he had slumped to the ground, appellant stated to those persons present: "I wasn't aiming to hurt this boy. I said, he made me do it." The record also indicates further, though the appellant states he did not hear the deceased tell him to go home, that the deceased told the appellant to go home several times. It was undisputed that the deceased was unarmed at the time he was fatally struck by the appellant. The appellant concedes that the deceased had nothing in his hands. Appellant filed a motion for a new trial, which was overruled, and this appeal was perfected. Appellant assigns two errors, the first being that the court erred in refusing to grant the appellant the following instruction: "The Court instructs the jury for the defendant, that the law gives one the right when necessary or apparently necessary, to anticipate the attack of his adversary. One is not required to delay his self defense until his adversary is on equal footing with him. If the jury believes from the evidence that the deceased, Ruby Jackson, had made a physical assault upon the defendant, and that deceased was attempting to secure a dangerous weapon, or that his acts were such that the defendant had reason to believe that deceased was attempting to secure such a weapon with which to make an attack upon him and that he was in danger or reasonably thought he was in danger of losing his life or suffering great bodily harm at the hands of deceased, then the defendant had the right to use whatever means he could to stop deceased from inflicting such bodily harm and if the means used by defendant in preventing such onslaught caused the death of deceased, then defendant is not guilty and the jury will so find." 853 (Hn 1) It is the contention of the appellant that the testimony justifies the granting of the instruction which the court refused and that the rights of the appellant were seriously imperiled by this refusal. The circuit court committed no error in refusing this instruction for several reasons, two of which will suffice to show that the instructions was erroneous. First of all, the testimony wholly fails to show that at the time the deceased struck or struck at the appellant he was attempting to secure a dangerous weapon or that his acts were such that, at the time, the defendant had reason to believe that the deceased was attempting to secure such a weapon. This portion of the instruction is unsupported by the testimony in this case. The testimony wholly fails to show that the deceased made any effort to pick up the hand ax until after he had been stabbed in the heart by the appellant. The fact that the deceased was in some proximity to the ax cannot be construed to constitute an attempt to secure and use it. Such an attempt requires an overt act on the part of the deceased prior to the time he was mortally stabbed by the appellant. (Hn 2) The second reason why this instruction was properly refused is that the court had granted the appellant an instruction covering the law with reference to the right of a person to resist threats and physical force and to repel an assault and to defend himself. The appellant secured two instructions on this rule of law but one will suffice, which is as follows: "The Court instructs the Jury for the defendant that the right of self defense is one of our inalienable rights. Any person assaulted by another has the right to repel such assault by such means and force as may to him be apparently and reasonably necessary. He should be judged in the light of the circumstances then apparent to him, rather than in the light of after developed facts. 854 "If you believe from the evidence in this case that the defendant, J.W. Alexander, was not the aggressor, and that he was assaulted by threats and physical force by the deceased, Ruby Jackson, then the law of self defense is that the defendant then and there had the right to repel such threats and assaults by using such force as to him was then reasonable and apparently necessary to repel such assault on him and defend himself. If no greater force was under such circumstances then used by defendant, it is your duty to find the defendant not guilty. "And in this respect, you are further instructed that if the defendant under such circumstances, did use greater force than was to him apparently reasonable and necessary to defend himself, and did so in the heat of passion and without malice and not in necessary self defense then he would be guilty of no greater crime than manslaughter; and in such event your verdict should be `We, the jury, find the defendant guilty of manslaughter.'" Frierson v. State, 250 Miss. 339, 165 So.2d 342 (Miss. 1964); Whitehead v. State, 246 Miss. 530, 151 So.2d 196 (1963); West v. State, 233 Miss. 730, 103 So.2d 437 (1958); Rose v. State, 222 Miss. 699, 76 So.2d 835 (1955); Thigpen v. State, 219 Miss. 517, 69 So.2d 241 (1954); Bramlett v. State, 37 So.2d 305 (Miss. 1948); Neilsen v. State, 149 Miss. 223, 115 So. 429 (1928). (Hn 3) The second error assigned is that the court erred in overruling the motion of the appellant for a new trial on the grounds that the verdict of guilty was not supported by the evidence. The record is one of a typical homicide case where there are sharp conflicts in the testimony for the state and for the appellant and in which there is even inconsistency in one or more witnesses' testimony. Under the indictment, the proof of the state is sufficient, if believed by the jury, to convict the appellant of the charge of murder. The 855 state's evidence was sufficient to show that the appellant stabbed and killed the deceased without provocation and not in necessary self defense. The proof is uncontradicted that the deceased was unarmed at the time he was stabbed by the appellant. As we have consistently held, the jury is the sole judge of the credibility of the witnesses, the weight and the worth of their testimony. The jury has the right to believe a part of the witnesses' testimony and disbelieve other parts, and arrive at the truth as to what transpired. Bond v. State, 249 Miss. 352, 162 So.2d 510 (Miss. 1964); Matthews v. State, 243 Miss. 568, 139 So.2d 386 (1962); Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949). Cf. also Rogers v. State, 222 Miss. 609, 76 So.2d 702 (1955); Scott v. State, 185 Miss. 454, 188 So. 546 (1939); Woodward v. State, 180 Miss. 571, 177 So. 531 (1937), sugg. of error 178 So. 469 (1938); Witt v. State, 159 Miss. 478, 132 So. 338 (1931); Evans v. State, 159 Miss. 561, 132 So. 563 (1931); and Young v. State, 150 Miss. 787, 117 So. 119 (1928). (Hn 4) After careful consideration, we are forced to the conclusion that the jury was justified in finding by its verdict that the appellant was guilty of murder. Therefore, the verdict of the jury and the judgment of the trial court is hereby affirmed. Affirmed. Kyle, P.J., and Gillespie, Jones and Inzer, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/746207/	124 F.3d 223 Litton Industrial Automation Systemsv.Nationwide Power Corporation, Fitzgerald, Peters, Dakmak &Miller, P.C.; U.S. v. Magna Card, Inc., d/b/a HighlanderInternational Corporation, John F. Roscoe, III, BrooksSatellite, f/k/a Nationwide Power Corporation NO. 95-2725 United States Court of Appeals,Eleventh Circuit. Aug 28, 1997 M.D.Fla., 106 F.3d 366 1 DENIALS OF REHEARING EN BANC.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/1235689/	533 P.2d 355 (1975) IN THE MATTER OF PHILLIP ROBERT ZINZER, a Child. STATE ex rel. Juvenile Department of Clackamas County, Appellant, v. Eugene ZINZER and Jeannie Zinzer, Parents, Respondents. In the matter of Michael Henry Paulson, a Child. State ex rel. Juvenile Department of Clackamas County, Appellant, v. Jeannie Zinzer, Mother, Respondent. Court of Appeals of Oregon. Argued and Submitted February 25, 1975. Decided March 31, 1975. William B. Reisbick, Milwaukie, argued the cause and filed the brief for respondents. Betsy Welch, Deputy Dist. Atty., Oregon City, argued the cause and filed the brief for appellant. Before SCHWAB, C.J., and FOLEY and LEE, JJ. FOLEY, Judge. On May 22, 1974, petitions were filed in the Circuit Court of Clackamas County, Juvenile Department, seeking termination of the parental rights of Eugene and Jeannie Zinzer to the child Phillip Zinzer and of Jeannie 356 Zinzer to the child Michael Paulson. After hearing, the petitions were dismissed. The Juvenile Department of Clackamas County appeals. ORS 419.561. Our review of these cases is conducted in the same manner as an appeal in an equity suit, ORS 419.561(4), which means a de novo review upon the record, ORS 19.125(3). The primary statute regarding the grounds for termination of parental rights is ORS 419.523, which provides in pertinent part: "(1) The parental rights of the parents of a child within the jurisdiction of the juvenile court * * may be terminated as provided in this section * * * "(2) The rights of the parent or parents may be terminated * * * if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable in the forseeable [sic] future due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following: "(a) Emotional illness, mental illness or mental deficiency of the parent of such duration as to render it impossible to care for the child for extended periods of time. "* * * "(d) Physical neglect of the child. "(e) Lack of effort of the parent to adjust his circumstances, conduct, or conditions to make the return of the child possible or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected. "(3) The rights of the parent or parents may be terminated * * * if the court finds that the parent or parents have failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for one year prior to the filing of a petition. In determining such failure or neglect, the court shall consider but is not limited to one or more of the following: "* * * "(b) Failure to maintain regular visitation or other contact with the child which was designed and implemented in a plan to reunite the child with the parent. "* * ." (Emphasis supplied.) The basis for termination "must be established by a preponderance of competent evidence." ORS 419.525(2). We now review the record. Phillip Zinzer (Phillip) is now six years old and Michael Paulson (Michael) is now seven years old. Mrs. Zinzer is the mother of both Phillip and Michael; Mr. Zinzer is the father of Phillip and the stepfather of Michael. Mrs. Zinzer testified she does not know who is the father of Michael. In 1971 a health department official reported that the Zinzers were living in a trailer without water and electricity, that the home was maintained in a filthy condition, and that the children were not adequately clothed. In August 1971 an order was issued that the children be placed under the temporary care, placement, and supervision of the Children's Services Division (CSD) pending an investigation. At the time Phillip and Michael were picked up, a CSD foster-care worker noticed animal feces on the ground in the area of the home and food left out on the table; he found Michael with Mrs. Zinzer by an animal pen, and Phillip was found asleep in an outdoor toilet. In November 1971 Michael and Phillip were declared wards of the juvenile court and they have been under the legal care of CSD ever since. The Zinzer's circumstances have not changed significantly between the time Michael and Phillip were first placed in 357 the custody of CSD and the time of the hearing on the petitions to terminate parental rights. Shortly before the hearing the Zinzers were living with Mrs. Zinzer's mother in a trailer house. At one time there were six people housed in the trailer. Garbage was piled up at the trailer house and the scene was described by a foster-care worker as "extremely nauseating." The Zinzers had at least two addresses by July of 1974 and had six different addresses in 1973. They moved often because Mrs. Zinzer's mother was always moving and the Zinzers moved with her. For three weeks prior to the hearing Mr. Zinzer worked at junking cars, making about $50 the last week. For eight months prior to that he worked at trailer maintenance for about $300 a month but he quit because he thought his paycheck deductions were too large. The Zinzers have had marital problems and were separated at least once. The Zinzers were examined twice by Dr. Russell Sardo, a clinical psychologist, and, at their request, were examined once by Dr. Marvin Greenbaum, a clinical psychologist. The evaluations of both doctors were fairly consistent. Mr. Zinzer was described as being essentially asocial and as having a personality pattern disorder called dissocial sociopathy. Dr. Sardo testified as to Mr. Zinzer's background and ability to understand and deal with children: "* * * I saw Mr. Zinzer as a man who seemed to be quite lacking in judgment, showing almost no understanding whatsoever of the needs of young children. "He appeared to be an individual who had been unable to sustain a relative responsibility of a constant way of life both in the period in which I had experience with him and in his past history." Dr. Sardo's testimony was not contradicted and was in fact supplemented by the testimony of Dr. Greenbaum who was called as a witness by the Zinzers. Mrs. Zinzer is a very limited woman. Dr. Sardo testified: "A * * * "It was my feeling that she is sustained primarily by Mr. Zinzer. That Mrs. Zinzer is a woman who lacks the capacity to function as an individual and will have to * * * function mainly on support of someone else. This is provided by Mr. Zinzer. "* * * [On tests which were administered] Mrs. Zinzer scored in the lowest one-third which would place her [functioning] somewhere in the lower part of the educable retarded range * * . "Her typical responses seemed to be very flat without any indication of warmth or response of emotion. "She showed a lack of capacity to understand most of what we were saying as indicated by her response when I spoke about the children, their needs and how these children had been harmed by the life pattern there and we spoke further about the existence that they were maintained in, their life patterns and therefore the logical conclusion was that the children would not benefit, as a matter of fact, they were harmed. I would say she nodded `yes', she agreed to that but it could not extend further. That, yes, she should either change or get rid of the children, that seemed to be lacking * * [she has an] inability to comprehend. "I specifically requested that I see them again the second time to elaborate my diagnostic implementation and I felt at that time that the evidence of retardation is probably on a functional basis. That is, this is not due to any physiological or organic limitation, but that this is a symptom of a probably almost life-long emotional problem which I think might best be described as a chronic degenerative process. "It is evidenced that in general social, emotional, vocational and educational inadequacy and the likelihood is that there will be continued deterioration. This pattern fits the attitude of inadequacy and a simple psychological kind of test. 358 "Q What in light of what I gather you are saying, number one, that she is retarded and number two, that she suffers from either, from a condition of simple schizophrenia or "A Or presimple schizophrenia. "Q What is in your opinion, Doctor, Mrs. Zinzer's capacity to provide the basic services, if you will, that a mother is expected to provide to small children? "A I think she has no comprehension of these services. I think that functioning in terms of her own needs is probably quite taxing." Again, Dr. Greenbaum's testimony was not contradictory and in many respects supplemented Dr. Sardo's statements. The conduct or conditions of the parents cannot be examined in a vacuum for they are not absolute factors in terms of ORS 419.523. Rather, we must examine the Zinzers in light of the effect their circumstances have had and might have in the future upon Michael and Phillip; our primary consideration is the best interests of these children. State v. Blum, 1 Or. App. 409, 463 P.2d 367 (1970). The evidence established that both Michael and Phillip had emotional problems. In school Michael had problems adjusting, and he was aggressive toward other children. In the first two of three foster homes he has been in he was extremely aggressive, had temper tantrums, had a short attention span, and had difficulty accepting discipline. Phillip has had even more problems, and had to be removed from his first foster home because he was continuously aggressive striking other children and stubbornly refused to accept discipline. He wet his bed every night and continuously wet his pants during the day, had temper tantrums and was unable to relate to children of his own age. He was referred to a mental health clinic. In January 1973 one psychologist warned that Phillip might have autistic and some schizophrenic tendencies and, if the right foster home weren't found, he might have to be institutionalized. By the time of the July 1974 hearing both boys had shown significant improvement. Phillip had been in one foster home for a year and a half; he had begun to gain weight and to grow; he had stopped throwing tantrums; he did not wet his bed unless he "got worked up" and he was an affectionate child. Michael had been in one foster home since August 1973, and his foster parents testified he had been cooperative, happy and well-behaved. However, there have been several occasions when the problems of Michael and Phillip have resurfaced. During the time the boys have been under CSD care, visitation programs have been established as part of attempts to promote reunification of the Zinzers with Michael and Phillip. Between August 1971 and February 1972, Mr. Zinzer saw the children twice. In February the court set up a monthly visitation program, but between February 1972 and November 1973 the Zinzers visited the boys only nine times. The only known reasons were that the Zinzers were at long distances because they were moving frequently, and they had transportation problems. In November 1973 a period of more intense visitations began. The evidence indicated that Michael and Phillip became very upset as the visits occurred more frequently. Phillip could not sleep, started wetting his bed again, and became very insecure, wanting to have his foster parents with him in circumstances where he previously was willing to be alone. Michael became defiant, drew into a shell, and started acting up in school. He would refuse to visit. Michael's situation deteriorated so badly that the visits with the Zinzers were moved from his foster home to CSD offices, and then were temporarily discontinued. Phillip expressed a fear that the Zinzers would take him away, and at the request of his foster parents visits were also scheduled at CSD offices instead of at his home. Evidence also established that there was relatively little interaction and affection shown between the Zinzers and Phillip or Michael, either during the visits within the 359 foster homes or during the visits at the CSD offices. The last visit with Michael was December 21, 1973, and visitations with Phillip were discontinued in March 1974. After discussing the problems of Michael and Phillip, Dr. Sardo responded to questions about their needs: "A These children do have problems. There has been, I think, a remarkable improvement in these children from the first time I saw them and from the descriptions that were given about their functioning and their behavior when they first entered foster placement. I think remarkable is the only appropriate term. "I think, well, I feel unequivocally that the children need to have a permanent identification with the family. That that family be sensitive and perceptive enough to their needs and committed enough to them as individuals, the capacity to love and to care, that they will be able to remain invested with these children and deal with their problems as they arrive. "They obviously have to have a fairly high frustration threshold because these children will test them and then it will be frustrating. They obviously have to have a capacity to respond with support and judgment and with affection and love even when frustrated. "That, I think, considering their age is the most appropriate therapy that can be provided. It may be at some time in the future when they are a little bit older and in school that additional professional help might be warranted, but the professional help would have to be considered as auxiliary to the provision of an effective family environment. "Q An approach to these children that you have just described, Doctor, can that be provided by either Mr. or Mrs. Zinzer or by them together? "A No." Dr. Greenbaum also testified that continuity and stability in their emotional and physical lives were most important to Phillip and Michael. In that context, Dr. Greenbaum thought Michael might be able to "tolerate" a visitation program beginning six months to a year in the future. Dr. Greenbaum thought Phillip to be "more vulnerable" and stated he would be more cautious in terms of establishing a visitation program. Dr. Greenbaum also expressed, on cross-examination, his opinion as to the ability of the Zinzers to care for the children: "Q * * * Dr. Greenbaum, I would like to ask you whether Mr. and Mrs. Zinzer will be a substantial resource to these children and only in the following context. Can Mr. and Mrs. Zinzer provide for these children in their own home? "A Allow me to turn your question around a little bit and see if you find the answers. I want to emphasize the word[s] `these children' and I want to emphasize the word[s] `at this time,' and I give the answer in this way. "These children are children who are vulnerable to certain kind of situations. They are who, I think have experienced life situations which are depriving. I believe they place more strain, place, put more need upon the depth and continuity of parenting care than might youngsters who haven't had the experiences they have already had in life and are not reacting the way they are. To that end of the question, that is, could these children I believe that Mr. and Mrs. Zinzer at this time would not provide what I would be considering the type of care which would enable them to grow in the in a way that would not be destructive to them. "* * * "Q Doctor, speaking in very practical and realistic terms, what can happen in the foreseeable future that would make it possible for those children to live with these parents? "A To make it healthy for the children, in other words? 360 "Q Yes? "A I will answer that by saying I don't think there is any practical way that that would change the present situation." Dr. Sardo's testimony as to the capabilities of the Zinzers, in terms of the needs of the boys, sums up the evidence: "Q Dr. Sardo, is there any service, social service that could be provided to Mr. and Mrs. Zinzer in their own home that in your opinion would permit them to be able to provide for these two children? "A No, no, I don't. If we view even the needs of the children in the most basic terms, terms of providing basic physical needs, the appropriate service would be a homemaker who would in effect be providing most of the help, and there is no guaranty that this kind of functioning would sustain itself, but obviously the needs of the children are much more extensive than that and I can't see any way in which we could help these people acquire the sufficient desire and dedication and also the capacity to provide these." (Emphasis supplied.) The trial court, in refusing to terminate parental rights, found that "[t]he termination of visitation privileges made it impossible for the parents to have any opportunity to show whether they desired [or were able] to maintain visitation * " and that "[t]ermination of visitation privileges made it impossible for the parents to indicate by their conduct what their parenting abilities may be." The trial court also found that the Zinzers "have some limitation on their mental acuity," but that mental ability and type of parental care are "relative things." We interpret this case differently. The evidence established that Mrs. Zinzer suffers from an emotional illness and retardation, that Mr. Zinzer is somewhat mentally deficient, and that because of these factors it will be impossible for them to meet the needs of Michael and Phillip, even with extensive assistance. There is evidence that Phillip and Michael were physically and emotionally neglected before they were taken in custody by the CSD. In the context of the nearly three years which passed between the original custody order and the hearing on termination of parental rights, the Zinzers made only a minimal effort and were unable to readjust to make their circumstances, conduct, or condition compatible with being parents to the children. While it is true that visitation was terminated by CSD, this only occurred after two and one-half years of attempts to bring the Zinzers together with Michael and Phillip had failed and the visits appeared to be damaging to the boys. Unlike State v. Grady, 231 Or. 65, 371 P.2d 68 (1962), where termination was not approved, there is very little evidence here that the Zinzers may be able to adequately resume their parental duties; in fact, the weight of evidence here is to the contrary. Unlike State v. McMaster, 259 Or. 291, 486 P.2d 567 (1971), where termination was not allowed, there is clear and, in fact, largely uncontradicted evidence that not only the Zinzers' conduct but their condition as well has been seriously detrimental to Michael and Phillip. The trial judge hesitated to terminate because he questioned whether the Zinzers were provided with sufficient time to adjust their circumstances and conduct. However, the record here provides substantial evidence that because of their condition the Zinzers cannot be expected to care for Michael and Phillip in the future. We conclude that this misfortune should not be visited upon the children and the evidence persuades us that termination is proper in this case. See State ex rel. Juv. Dept. v. Archuletta, 12 Or. App. 596, 506 P.2d 540, Sup.Ct. review denied (1973). See also State ex rel. Juv. Dept. v. Wade, Or. App., 99 Adv.Sh. 2247, 99 Adv.Sh. 3058, 527 P.2d 753, 528 P.2d 1382 (1974), Sup.Ct. review denied (1975); State ex rel. Juv. Dept. v. McMaster, 18 Or. App. 1, 523 P.2d 604, Sup.Ct. review denied (1974); State ex rel. Juv. Dept. v. Patton, 5 Or. App. 450, 485 P.2d 653 (1971). As we said in McMaster: 361 "`* * * The best interests of the [children] are paramount * * *.'" 18 Or. App. at 11, 523 P.2d at 608. The preponderance of the evidence in this case supports the termination of parental rights, pursuant to ORS 419.523(1), (2) and (3), of Eugene and Jeannie Zinzer to Phillip Zinzer and of Jeannie Zinzer to Michael Paulson. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/407708/	685 F.2d 1387 Laursenv.Veterans Administration 80-5988 UNITED STATES COURT OF APPEALS Eleventh Circuit 8/23/82 1 D.Fla. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/381346/	628 F.2d 604 24 Wage & Hour Cas. (BN 564, 202 U.S.App.D.C. 317,88 Lab.Cas. P 33,892, 1980 O.S.H.D. (CCH) P 24,309 NATIONAL ASSOCIATION OF FARMWORKERS ORGANIZATIONS, et al., Appellants,v.Ray MARSHALL, Secretary, Department of Labor. No. 79-1587. United States Court of Appeals,District of Columbia Circuit. Argued Feb. 13, 1980.Judgment Filed Feb. 15, 1980.Decided March 20, 1980. Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 79-1044). Diane B. Cohn, Washington, D. C., with whom William B. Schultz and Robert B. Stulberg, were on brief, for plaintiffs-appellants. Ronald G. Whiting, of the Bar of the Supreme Court of Iowa, Washington, D. C., pro hac vice by special leave of court was allowed to argue for appellee. Alvin Bramow, Deputy Associate Sol., Washington, D. C., was on brief, for Secretary of Labor. Before WRIGHT, Chief Judge, BAZELON, Senior Circuit Judge, and WILKEY, Circuit Judge. Opinion for the Court filed by Senior Circuit Judge BAZELON. BAZELON, Senior Circuit Judge: 1 This case presents a question familiar to this court1: How can an administrator set safety standards in the absence of adequate scientific evidence? The question here arises in the context of action by the Secretary of Labor (the Secretary) to implement section 13(c)(4)(A) of the Fair Labor Standards Act Amendments of 1977 (the 1977 Amendments). This provision permits the Secretary to waive restrictions on employment of 10 and 11 year olds in short season agricultural harvesting, but only if eight enumerated conditions are fulfilled as demonstrated by "objective data." 29 U.S.C.A. § 213(c)(4) (A) (1979). 2 One such condition, hereinafter described as "the pesticide condition," requires objective data that children will not be adversely affected by pesticides and chemicals used on crops.2 Without notice or comment, the Secretary promulgated a list of pesticides that would satisfy the statutory pesticide condition. The Secretary had no studies or data concerning the effect of any pesticide exposure on children. Because this statutory scheme so clearly requires objective proof of safety, we find the challenged regulations listing approved pesticides inconsistent with governing law. We also find the challenged regulations procedurally flawed as they were promulgated without the notice and comment procedures required under the Administrative Procedure Act (APA), 5 U.S.C. § 553. We therefore reverse the district court's denial of a motion for preliminary injunction, and remand for proceedings not inconsistent with this opinion.3 I. BACKGROUND A. Statutory Framework 3 As a general rule, Federal law prohibits employment of children under 12 years of age.4 The 1977 Amendments permit employers to apply to the Secretary for a waiver of the child labor laws in order to employ 10 and 11 year olds for harvesting short-season crops. Such waivers can be granted under the Amendments only if the following conditions,5 among others, are met: 4 (ii) the employment of the individuals to whom the waiver would apply would not be deleterious to their health or well-being; 5 (iii) the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply. 6 29 U.S.C.A. § 213(c)(4)(A) (1979). These requirements are satisfied only if the Secretary makes findings "based on objective data submitted by the applicant." Id. B. The Regulations 7 The history of the regulations at issue reveals an agency struggling to establish uniform standards in the face of little or no evidence. Initially, the Department of Labor attempted to set uniform evidentiary benchmarks to establish the requisite safety assurances for work with pesticide-treated crops. Thus, on April 4, 1978, the Department proposed that waivers permitting employment of 10 and 11 year olds would be granted only if employers produced evidence that their pesticides meet health and safety standards of the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), National Institute for Occupational Safety and Health (NIOSH), or other "comparable authority." 43 Fed.Reg. 14070 (April 4, 1978). This first agency action was the only one announced with advance notice and opportunity for public comment. The agency solicited responses in a two-day public hearing. 8 Comments and testimony on the April 4 proposal pointed to the complete absence of relevant health and safety standards for children exposed to pesticides.6 The EPA Assistant Administrator for Toxic Substances, a member of EPA's Scientific Advisory Panel for Pesticides, and one of the instant plaintiffs alerted the Department of Labor to the fact that neither the agencies cited in the regulation nor any comparable authority had set standards that would protect children from the adverse effects of pesticide exposure. The public and governmental response demonstrated that the state of knowledge was simply too inadequate to support safety standards.7 9 The final regulation was published in the Federal Register on June 21, 1978. The preamble acknowledged that the EPA's pesticide exposure standards8 "have not been shown to be safe for 10 and 11 year olds." 43 Fed.Reg. 26563 (June 21, 1978) (codified at 29 C.F.R. § 575.5 (1979)). Section 575.5(d) of the regulation provided that employers seeking a waiver to permit employment of 10 and 11 year olds would have to submit either (1) a statement that they do not use pesticides, or (2) data proving that 10 and 11 year olds can safely be exposed to the particular pesticides used. The regulation also indicated that it would remain subject to future modification in light of studies conducted by the Secretary or his designees. 10 After promulgation of the regulations a Federal district court in the State of Washington temporarily enjoined enforcement of the general statutory minimum age restrictions9 because the Secretary had failed to act on pending waiver applications before the June 1979 strawberry season. See Washington State Farm Bureau v. Marshall, No. C78-135T (W.D.Wash.1978). Although that suit ultimately was dismissed, some 3900 children under the age of 11 were employed during that strawberry harvest as a result of that court's action. Plaintiff's Br. at 13 n. 2 (citing Department of Labor Memorandum in J.A. Vol. A at A31). 11 At this point the Department apparently felt pressed to facilitate the processing of waiver applications by specifying safety standards. On June 15, 1978, the Secretary asked a private consulting firm, Clement Associates, Inc., to review existing scientific literature in an effort to develop criteria for evaluating waiver applications. Clement was directed to focus specifically on strawberry hand-harvesting in Washington and Oregon, and potato hand-harvesting in Maine. What followed was a series of Clement reports, triggering a series of agency modifications of its regulations, each published in the Federal Register without advance notice or opportunity for comment.10 Each of the Clement studies proposed the use of "preharvest intervals" or "minimum entry times" which provide for a time lag between the spraying of the pesticides and the entrance of harvesters on the fields.11 Each of the studies qualified its recommendations by observing they could "not assure safety" to the 10 and 11 year olds12 and consistently acknowledged the need for more exhaustive study including new studies, not merely reviews of existing literature.13 Nonetheless, the Secretary relied exclusively on these studies in his regulations implementing the waiver provision. 12 The first Clement study recommended "tentative" standards that essentially doubled the "preharvest intervals" set by the EPA for adults.14 The Department adopted this recommendation in an August 18, 1978 amendment of section 575.5(d) of its regulation.15 The Department approved 22 pesticides for use with "preharvest intervals" before children could enter the field. The list included one known carcinogen and other chemicals found dangerous by Clement.16 Although the Secretary did not provide advance notice or opportunity for comment before putting the regulations into effect, the EPA submitted comments challenging the adequacy of the standards. The EPA noted the special susceptibility of children to toxic effects from pesticides, and concluded "we don't believe the data available allows us to make a decision on the safety of children either in preharvest or reentry situations."17 13 The next Clement report was requested on March 19, 1979 some six months after the earlier report. Rather than seeking new field studies to address the special question of pre-adolescent health, the Department asked Clement to review the list of approved pesticides and to investigate additional pesticides. Ten days later, Clement issued a report addressing the carcinogencity of five pesticides. Shortly thereafter, the Department issued another rule removing three known carcinogens from the list of approved pesticides.18 This action was not based on new data, as the three chemicals had already been identified as carcinogens before the adoption of the August 18 rule.19 14 Clement then issued another report discussing 16 other pesticides it researched at the request of the Department.20 Although noting the dangerous health effects associated with some of these substances, Clement again merely recommended doubling EPA's preharvest intervals as a standard for children. The agency responded by adding these 16 substances to the approved list with minimum entry times established in the Clement report.21 C. Proceedings Below 15 Plaintiffs-appellants, two private non-profit organizations representing farmworker families,22 sought: 1) a finding by the district court that the Secretary's approval of pesticide use with pre-harvest intervals for 10 and 11 year olds violates the statutory waiver provision; 2) a declaratory judgment that the regulations violated the notice and comment provisions of the APA; and 3) injunctive relief enjoining the Secretary from applying the regulations that establish entry times for 10 and 11 year olds. 16 On May 21, 1979, the district court held a hearing on plaintiffs' motion for temporary relief.23 The government defendant presented two witnesses. The Assistant Administrator for the Wage and Hour Division described the agency's decisionmaking process. He said that the agency turned to Clement Associates when it found no federal agency had set satisfactory standards for children exposed to pesticides. He explained that it was on the basis of the Clement Associates reports and these reports alone24 that the agency issued the lists of approved pesticides with minimum entry times.25 17 The Department's second witness was a representative of Clement Associates. She explained that Clement's research team reviewed all available studies on known health effects of pesticides listed by the Department and also all existing standards for adult exposure. She further testified that the greater susceptibility of children was taken into account in the recommended entry times. She admitted on cross-examination, however, that further studies were needed to advance knowledge of the effects of pesticide exposure for children.26 But, she said, her group had only been asked by the Secretary to review the existing literature, none of which directly addressed the risk to children. 18 The district court denied the motion for preliminary relief. The judge first determined that the statute demanded findings by the Secretary, "based on objective data, that the level and type of pesticides or other chemicals will not have an adverse effect on the health or well-being of the 10 and 11 year old hand harvesters employed under a waiver."27 He then noted that the "Clement reports found that the recommended standards do not within the limits of current scientific knowledge assure absolute safety."28 Nonetheless, the judge concluded that the regulations, based solely on the Clements reports, were not "arbitrary, capricious, or otherwise not in accordance with law."29 19 The core of the court's reasoning rested on its acceptance of the Department's view that the 1977 Amendments mandated the issuance of at least some waivers, so safety standards, no matter how arbitrary, had to be set. The court also reasoned that because absolute assurance of safety could never be obtained, the Secretary was justified in acting despite scientific uncertainty about the effect of pesticides on 10- and 11-year-old children.30 20 The district court also ruled on the merits of plaintiffs' procedural claim. The court held that the APA's "good cause" exception to notice and comment procedural requirements was satisfied by the Secretary's desire for expeditious issuance, in time for the harvest season.31 In support of that conclusion, the court also reasoned that the Secretary's continuing review procedures showed further good cause for suspending notice and comment as ongoing review of submissions from interested parties could be considered.32 This appeal followed. II. ANALYSIS 21 The district court declined to grant a preliminary injunction by reasoning that the plaintiffs would lose on the merits.33 In so doing the court ignored three of the four factors required to be considered before issuance of a preliminary injunction.34 The court also wrongly evaluated the one factor it did consider: plaintiffs' likelihood of success on the merits. We analyze these matters at some length because of the importance of the issues presented and the broad reach of the district court's conclusions. 22 A. The Test for Granting Preliminary Injunctions 23 Over twenty years ago, this court articulated these four factors to be weighed by a court before granting a stay or a preliminary injunction: 24 (1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? . . . (2) Has the petitioner shown that without such relief, it will be irreparably injured? . . . (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? . . . (4) Where lies the public interest? 25 Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). These factors have assisted analysis ever since, and we see no reason to depart from them now. 26 The district court indicated no consideration of factors (2), (3), and (4) listed above, each of which weighs in plaintiffs' favor. Indeed each of these factors supports a preliminary injunction to preserve the status quo pending a decision on the merits,35 based on a balance of the equities between injuries to the parties and the public.36 Therefore, we address these factors. 27 1. Irreparable injury to plaintiffs. 28 Interlocutory injunctions are sometimes necessary to assure that rights sought are not so eviscerated during trial that final relief would be to no avail. The injury to plaintiffs, absent interim relief, must also be evaluated to permit a comparison with harms to other parties and to the public. 29 Here plaintiffs represent children37 who might work as hand harvesters if the Secretary is not enjoined from administering the waiver provision according to the challenged regulations. As a result, these children would be exposed to the pesticides and chemicals approved by the Secretary for use according to the listed "minimum entry times," intended to reduce risks of exposure.38 30 The risk of harm from such exposure pendente lite would not be eliminated even if plaintiffs ultimately were to win on the merits.39 Thus, plaintiffs convincingly make out a case of irreparable harm, absent interlocutory relief. In arguing that plaintiffs have not provided evidence of adverse effects to children, the government neglects the evidence in the record. The EPA, the agency most expert in hazards from pesticide exposure, identified some substances approved by the challenged regulations as "high-risk pesticides" and others as "highly toxic."40 The EPA further noted that the regulation's reentry intervals may not be sufficient in light of the complex nature of pesticide degradation.41 Further, OSHA and Clement Associates emphasized the known heightened susceptibility of pubescent children to harm from pesticide exposure.42 It is in this context that the EPA, OSHA, and Clement Associates all stressed the insufficiency of current scientific information to assist the setting of safety standards for children exposed to pesticides.43 These expert statements evidence insufficient knowledge of methods to combat known hazards. The hazards exist, and children's exposure to them constitutes the kind of irreparable departure from the status quo that necessitates interlocutory relief.44 31 2. Harm to other parties. 32 The obviously interested parties here are the defendant Department of Labor, and the agricultural employers, or the growers, who are advantaged by the availability of waivers under the Department's regulation that lists approved pesticides. A preliminary injunction enjoining application of that list would permit waiver only on satisfaction of the statutory requirement of "objective data" reviewed by the Department and provided by applicant employers establishing that employment conditions and pesticide exposure would not adversely affect 10 and 11 year olds.45 A foreseeable result is that fewer waivers would be granted. The proof process would be more difficult, and the case-by-case evaluation more time-consuming, than would simple application of the list of approved pesticides here under challenge.46 33 Growers seeking waivers thus would suffer from a diminished labor pool and would either be short on labor or have to pay more to attract employees. We assume that this result would indeed be burdensome, because under the statutory and regulatory schemes, waiver applications can be approved only based on objective data that the industry would suffer "severe economic disruption" without the child employees available through a waiver.47 We note also, however, that the industry obviously has survived without any 10- and 11-year-old hand harvesters during the extended period preceding the passage of the statutory waiver provision in 1977.48 With the restricted availability of waivers even subsequent to 1977,49 we must conclude that the industry would not be significantly harmed if the Secretary is enjoined from approving applications supported by statements of pesticides used. 34 The other interested party possibly harmed by a preliminary injunction is the defendant Department of Labor. The harm to it would be the suspension of its list of approved pesticides, and the pressure to respond to demands by both growers and child protection groups. These results do not constitute substantial harm for the purpose of delaying injunctive relief. Indeed, these consequences are no different from the Department's burdens under the statutory scheme. The Department could still seek sufficient information to support reliable safety standards, and the Department could also initiate notice and comment rulemaking for that same purpose. Especially when compared with the irreparable harm from children's exposure to known dangers, the foreseeable consequences to the Department of Labor and to growers are insignificant. 3. The Public Interest 35 The public interest is a uniquely important consideration in evaluating a request for a preliminary injunction. As the Supreme Court has held, "Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved."50 36 Here, two competing problems for the public interest arise. First, how will the price of produce be affected if a preliminary injunction limits the availability of 10- and 11-year-old hand harvesters? Second, what health effects would 10- and 11-year-old children risk if allowed employment? Thus, consideration of the public interest requires us to replay the analysis of the two previous factors. We must ask what is the proper balance between the economic burdens to growers denied waivers, a burden ultimately shifted to consumers, and the irreparable harm to children exposed to pesticides and chemicals through employment allowed waivers? Once again, the balance must be struck in favor of the protection of children.51 Especially in the context of a motion for preliminary relief, equity requires protection against irreparable harm. Plainly, any possible reduction in the price of produce that might result from denying preliminary relief would be only short-term, and would never approach the value of the children's health to the nation. 37 In sum, we conclude that the three factors ignored by the district court clearly favor the plaintiffs. It may well be that a preliminary injunction was warranted even if the district court had correctly concluded that plaintiffs would not be likely to prevail on the merits. Even if that were the case, plaintiffs needed only to present a "serious legal question" for preliminary relief to be granted under the other circumstances of their case.52 Moreover, we conclude that the district court incorrectly assessed plaintiffs' likelihood of prevailing on the merits. B. The Merits 38 "The duty to appraise the merits at the stage of preliminary injunction is a duty of appellate as well as trial courts."53 In addition, the mistaken premises of law behind the district court's denial of preliminary relief require review as they are bound to reappear during further proceedings in the case.54 39 Presented only with a motion for preliminary injunction, the district court assessed not only plaintiffs' likelihood of prevailing on the merits, but also issued conclusions of law.55 It found that the plaintiffs failed to demonstrate that the challenged regulations are arbitrary, capricious, or otherwise not in accordance of law. The court also concluded that the Secretary had "good cause" to waive the requisite notice and comment procedures. In reaching both conclusions, the district court incorrectly presumed that the existence of the waiver provision in the 1977 Amendments required the issuance of some waivers. This premise neglects the legislation's clear burden on both waiver applicants, and the Department of Labor to establish, through "objective data," the safety of employment conditions for 10- and 11-year-old children.56 40 1. The substance of the regulation. 41 The challenged regulations were issued amidst acknowledged uncertainty. Indeed, assuring safety in exposure to pesticides may be beyond the range of scientific certainty at present.57 At the same time, analytic tools are only beginning to take shape for comparing costs and benefits of safety regulations.58 The task for a court asked to review an administrative safety standard is to determine whether the basis for the standard satisfies the requirements of authorizing statute.59 42 Here, the district court concluded that the Secretary "could not delay the issuance of waivers until he received assurances that certain pesticides were absolutely safe or presented zero risk because the state of scientific knowledge could not in the near future, if ever, provide such assurances."60 The court's reasoning is flawed in at least three respects. 43 First, its concern with the problem of proving absolute safety obscures the simpler question posed by this case: did the Department meet the statutory requirement for issuing waivers in announcing a list of approved pesticides solely on the basis of the Clement reports? The statute requires a finding by the Secretary "based on objective data submitted by the applicant, that . . . the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply."61 The Secretary here chose to simplify the process by announcing a list of approved pesticides. This approach is compatible with the statute, but by law the Secretary still had to find that the pesticides and chemicals used would not adversely affect the child hand harvesters. Yet here the Secretary had no data even tending to point in that direction. The Secretary relied completely on the solicited Clement reports which, as we have discussed, expressly disclaimed any assurances of safety.62 None of the reports provides any data to show that even with the recommended entry times, pesticide exposure would not be adverse to children's health. Indeed, each Clement report recommended supervision and medical surveillance of children exposed.63 44 This is not a case in which there are data supporting the Secretary's view, but subject to criticism.64 The Secretary issued lists of approved pesticides solely on the basis of secondary reviews of the research literature which revealed that "most critical information required for evaluating potential hazards to children is lacking."65 The problem of proving absolute safety can in no way excuse the Secretary's failure to abide by the governing statute. 45 The reasoning of the district court is further flawed because of a factual error. The court concluded that "the state of scientific knowledge could not in the near future, if ever" provide requisite assurances of safety.66 In fact, the Clement reports acknowledged that their findings were limited in no small part by the time constraints imposed by its contracts with the Department.67 At the hearing on the motion for preliminary injunction, the witness from Clement testified that because of the time restrictions imposed by the contracts, Clement had never evaluated the basis for EPA pesticide standards,68 even though EPA notified the Secretary that its data did not cover the special case of pubescent children.69 The Clement witness also testified at the hearing that existing methodologies, applied to this special case, would be helpful, and feasible, "time permitting."70 Moreover, the EPA said the Department could and should "examine retrospectively the effects of past harvest practices (to determine) whether any adverse effects are observed."71 Nonetheless, the Department did not seek any new studies before issuing its lists of approved pesticides; it merely asked Clement to review existing literature, none of which dealt with children's exposure to pesticides. 46 Bolstered by the unsupported belief that no better evidence could be obtained, the district court concluded that the Secretary was justified in relying on "the best available evidence."72 This standard, while approved in other Department of Labor statutes, does not appear anywhere in the waiver provision.73 This provision instead specifies the need for "objective data" of no adverse health effects.74 47 Finally, the district court wrongly reasoned that the regulations had sufficient basis because absolute safety would be impossible to assure. Proof of an absolute the absence of danger is indeed beyond reach.75 Yet such a proposition must not permit a court to substitute its view for the statute's explicit requirements. Apparently, the district court believed the requirements set by statute are impossible to fulfill. But if there ever were an instance in which Congress did not delegate discretion to an agency to establish less than absolute safety standards, this might be that case. Congress permitted a limited exception to the prohibition against child labor by imposing most stringent conditions to assure safety. The proposed bill passed by the House required merely objective proof that the employment permitted through waivers "would not be deleterious to (the children's) health or well-being."76 The Senate, however, refused to pass the bill without adding the further condition to guard specifically against adverse health effects from pesticide exposure.77 The Senate sponsor of the initial language said new language was added "just to make sure that there is no danger whatsoever from any toxic material" encountered by children employed through waivers.78 Thus, neither the legislative history nor the language of the waiver provision provides any leeway. The directive is clear. Exceptions to the prohibition against child labor can be made only upon findings, based on objective data, that the employment will not have adverse effects on the children's health or well-being. 48 The district court similarly erred in concluding that a requirement of absolute safety "would in effect nullify the congressionally authorized waiver provision."79 In fact, a situation of "zero risk"80 from pesticides exists and is provided for in the regulations: fields where no pesticides are used.81 They explicitly provide that employers may support waiver applications by submitting "a statement that no pesticides or other chemicals were used on the crop to be harvested."82 49 Apparently unaware of this possibility, the district court reasoned that stringent safety requirements would result in no waivers, and thus violate Congress' intention to permit waivers.83 This reasoning turns the waiver provision on its head. Congress provided that the "Secretary may not grant such a waiver unless " the conditions of the statute are met.84 Congress authorized the waivers only after underscoring its commitment to protect children, especially from risks due to pesticide exposure. By conditioning waivers on the showing of proof that the work would not be deleterious or adverse to the children's health and well-being, Congress imposed tough barriers. Absent the requisite proof, Congress' intent would be violated if waivers are granted. Rather than turning the waiver provision into a nullity, plaintiffs' claim of statutory violation reflects exactly what Congress intended. Thus, plaintiffs' likelihood of prevailing on the merits is assured.85 2. Procedural violation 50 Issued pursuant to statutory authority,86 the regulations here at issue are standards governing conduct and rights. They are clearly rules subject to the notice and comment procedures required by the APA, 5 U.S.C. § 553.87 Yet only the initial regulation, which proposed reliance on EPA, OSHA and other existing pesticide standards, was subject to notice and comment.88 Because the comments revealed that existing pesticide standards did not cover children, the Department changed its regulation to provide that the applicant "will either have to submit a statement that no pesticides or other chemicals were used on the crops to be harvested or submit data which upon study by the Secretary or the Secretary's designees establishes safe reentry times for 10 and 11 year olds."89 51 Without advance notice or comment, the subsequent regulations issued by the Department first established and then modified the approved list of pesticides with minimum entry times. The district court found no procedural defect because "the public interest in the expeditious issuance of safety standards for the hand harvesting of crops with a short harvest season" falls within the "good cause" exception to the notice and comment requirement.90 The government here similarly defends the suspension of notice and comment to make the regulations effective during impending harvest seasons.91 The government argues that once in effect, the regulations (1) protect children and (2) assist waiver applicants with advance notice of acceptable pesticides. 52 These two purposes certainly support the promulgation of rules rather than merely a case-by-case administrative review of pesticides. But good cause to suspend notice and comment must be supported by more than the bare need to have regulations.92 Especially in the context of health risks, notice and comment procedures assure the dialogue necessary to the creation of reasonable rules.93 The government concedes that the challenged regulations are its first attempt to set protective standards for children employed under the agriculture waiver provision.94 This is exactly the kind of standard which especially needs the utmost care in its development and exposure to public and expert criticism. 53 The government also here advances the district court's reasoning that there was no procedural defect because the Secretary has agreed to accept additional data from interested parties even now that the regulations are in effect.95 This ongoing sensitivity to developing knowledge is to be encouraged; it is a normal requirement of competent administration.96 It does not, however, justify suspension of requirements otherwise mandated for the initial promulgation of regulations. 54 Finally, on a practical note, plaintiffs correctly observe that the time pressure posed by the impending harvest seasons was due in large part to the Secretary's own delays. The Department waited nearly seven months between the initial regulation promulgated through notice and comment and the first modification of it promulgated without the requisite procedures.97 During that time, the Department held meetings with state farm bureaus, growers, and congressional staff members.98 The Department apparently found it quite possible to consult with the interested parties it selected. In this light, we cannot sustain the suspension of notice and comment to the general public which includes parties, such as plaintiffs who are primarily concerned with the health of their children. The Department has failed to demonstrate that the requisite procedures were "impracticable, unnecessary, or contrary to the public interest."99 III. CONCLUSION 55 Because of the urgency of this expedited appeal, we issued a judgment immediately after oral argument.100 As explained more fully in this opinion, we reversed the judgment below because the district court misapplied the standard for granting a preliminary injunction. The district court was directed to enter a preliminary injunction in light of our evaluation of the merits. The irreparable harm to the children affected by the regulations and the fact that the regulations are marred by both procedural and substantive violations lead us to conclude that plaintiffs must prevail on the merits. 56 The matter here on appeal, of course, is the district court's denial of the motion for a preliminary injunction. Subsequent to the filing of this interlocutory appeal, the plaintiffs moved for summary judgment on the grounds that the district court had essentially disposed of the merits in its conclusions of law on the preliminary injunction motion. The district court denied summary judgment because the instant appeal divests the district court of jurisdiction.101 At oral argument before this court, both parties agreed that the merits of the case are ready for review. For this court now to restrict its attention to the preliminary injunction question would be to elevate form over substance. Because of the parties' agreement that the merits are ready for review, the district court's de facto decision on the merits, and the importance to the parties and the public of a final decision, our analysis has reached the merits.102 There is no doubt that the regulations violate both the procedural requirement of notice and comment, and the governing statute's requirement of "objective data . . . that . . . the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being" of the children affected by the waivers.103 The Department has committed itself to ongoing study to develop data specifically addressing the effect of pesticide exposure on pubescent children.104 Therefore, we have determined that in the interests of justice105 if not plain decency the preliminary injunction enjoining application of the challenged regulations106 must remain in effect long enough to permit the completion of appropriate notice and comment rulemaking by the Department. As a result, no waivers may be granted in reliance on the list of approved pesticides until the Department has had an opportunity to apply its developing knowledge, the entire interested public has had an opportunity to comment on new proposed regulations, and the Department has responded to those comments in publishing final rules. 57 Reversed and remanded. APPENDIX JUDGMENT 58 PER CURIAM. 59 This cause came on to be heard on the record on appeal from the United States District Court and was argued by counsel. 60 Section 13(c)(4)(A)(iii) of the Fair Labor Standards Act, 29 U.S.C. § 213(c) (4)(A)(iii) (1976), states that the Secretary may grant waivers to permit the employment of 10- and 11-year-old children only if he "finds, based on objective data . . ., that . . . the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of (the children)." The Clement Report of May 18, 1979, on which the Secretary relied in making his determination, however, was based on the assumption that his recommendations would provide only "reasonable protection" for the children. Further, we find that the Secretary lacked good cause to dispense with the notice-and-comment procedures required by the Administrative Procedure Act, 5 U.S.C. § 553. See Community Nutrition Institute v. Butz, 420 F. Supp. 751 (D.D.C.1976). Accordingly, judgment of the District Court denying a preliminary injunction must be reversed. In order to permit the Secretary to proceed expeditiously with the research which he is undertaking and the notice-and-comment rulemaking to establish appropriate standards for the forthcoming harvest, the judgment of this court and the mandate will issue immediately, with opinion(s) to follow. 61 On consideration of the foregoing, it is ORDERED and ADJUDGED by this Court that the judgment of the District Court appealed from in this cause is hereby reversed and that the District Court shall enter immediately a preliminary injunction as prayed for pending appropriate notice-and-comment rulemaking. 62 It is FURTHER ORDERED, that further proceedings in the District Court be stayed pending the above rulemaking. 1 See, e. g., AFL-CIO v. Marshall et al., 617 F.2d 636 (D.C. Cir. 1979); Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) 2 29 U.S.C.A. § 213(c)(4)(A)(iii) (1979), see infra p. 607 3 Subsequent to the filing of appeal, but prior to oral argument, plaintiffs moved for summary judgment, so the district court's decision on the merits would be subject to appeal. The district judge, however, refused to rule on their motion on the grounds that a trial court cannot continue consideration of a case once an interlocutory appeal has been taken. National Association of Farmworker Organizations v. Marshall, No. 79-1044 (D.D.C. Jan. 11, 1980) (Memorandum Order) Although we respect the judge's reasoning, we agree with the parties that his ruling on preliminary relief in effect disposed of the merits. As both parties agreed during oral argument that the full case is ready for review by this court, and as the scope of the district court's preliminary ruling reaches all the merits, this court too reviews the merits of the issues presented. See infra p. 622. 4 16 is the minimum age for working in hazardous agriculture or working during school hours; 14 year olds may work in non-hazardous agriculture during non-school hours; 12 year olds may work in non-hazardous agriculture during non-school hours with written parental permission. Before the 1977 Amendments, younger children could only work with written parental consent on small farms not covered by the Fair Labor Standards Act. 29 U.S.C.A. § 213(c)(1) (1979) 5 Other conditions necessary for waiver include proof that individuals older than 11 are not available; that the industry has traditionally and substantially used employees under age 12 "without displacing substantial job opportunities for individuals over sixteen years of age"; 29 U.S.C. § 213(c) (4)(A)(v) (1976); and the crop to be harvested is short season and dependent on child labor Once granted, waivers must require that employment only be during non-school hours; that the children commute daily between work and permanent residence; that the employment extend only during 8 weeks per calendar year; and that any other conditions set by the Secretary will be followed. 29 U.S.C. § 213(c)(4) (B) (1976). 6 These public responses led to further study by the Department. Plaintiffs cite a June 16, 1978 memorandum written by the Director of OSHA's Office of Carcinogen Identification and Classification warning against pesticide exposure of 10 and 11 year olds: Epidemiologic information for pesticide effects on children of the peripubertal ages is nonexistent. . . . (It is) impossible with reasonable certainty to determine that protection of adult workers exposed to pesticides is adequate, let alone children of peripubertal ages. Memorandum to Grover Wrenn, Director, OSHA Health Standards Program, from Peter Infante, (June 16, 1978), reprinted in Joint Appendix (J.A.) Vol. A at A25-A28. The memorandum also noted that children of this age are "more vulnerable to environmental insult" than others, especially in light of their developing reproductive organs. Id. 7 The agency reported these comments and its resulting conclusions: The Environmental Protection Agency, which is the Federal agency designated for determining safety standards for the use of pesticides and chemicals for agricultural workers, advised that the standards it has established for the reentry of agricultural workers after the application of pesticides were established for adult workers and not for the pubescent child. The agency has further advised that it had not and could not on the basis of its present knowledge establish any safe reentry times for 10 and 11 year olds. Several witnesses at the hearing also testified as to their personal experience as to the adverse effects of pesticides on children. Others argued that the regulations should accept the manufacturer's reentry times (based on EPA's standards) specified as being safe for 10 and 11 year olds. This suggestion was not adopted since it was established at the hearing that EPA safe reentry times were based on adult tolerance. Moreover, it was apparent from the testimony at the hearings that the currently established EPA and other federal standards have not been shown to be safe for 10 and 11 year olds. Accordingly till such standards are developed or until the Secretary obtains information establishing by objective data that specified reentry times are safe for 10 and 11 year olds, no waivers will be granted to an employer or group of employers who have used pesticides or other chemicals on the crops to be harvested. Therefore, the final applicant, in order to satisfy this condition, will either have to submit a statement that no pesticides or other chemicals were used on the crop to be harvested or submit data which upon study by the Secretary or the Secretary's designee establishes safe reentry times for 10 and 11 year olds. 43 Fed.Reg. 26564 (June 21, 1978). As the government points out in its brief, the agency also heard two congressmen testify that the proposed regulations would prove too restrictive and would thwart the congressional decision to make waivers available. Gov't Br. at 12 n.6 8 This court has held that EPA standards prescribing an agriculture worker's reentry into fields treated with pesticides precluded the setting of OSHA standards thereby establishing the EPA as the federal agency generally designated for determining safety standards for pesticide and agriculture chemicals. Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161 (D.C. Cir. 1975) 9 See note 4 supra (discussing 29 U.S.C. § 213(c)(1), (d)) 10 The agency consistently adverted to the imminence of harvest seasons in finding notice and comment impracticable. E. g., 44 Fed.Reg. 24059 (April 24, 1979) 11 In setting minimum entry times for children, Clement relied on adult "preharvest intervals" rather than adult "reentry intervals." Noting that "preharvest intervals" usually are longer and more protective than "reentry intervals," Clement defined the two terms as follows: 2 Preharvest intervals (PHIs) are the minimum periods of time required after the crop is treated before it may be harvested. They are designed to ensure that crop residues do not exceed residue tolerances after the pesticide is applied under the prescribed conditions. Preharvest intervals are usually based on the results of residue dissipation studies under filed application conditions 3 Reentry intervals (REIs) are the minimum periods required after the crop is treated before field-workers are permitted to enter the field to harvest the crop or to perform other work. They are designed to protect the worker from injury resulting from exposure, usually via dermal absorption or inhalation to pesticide residues on the crop surfaces or in the soil. In principle they should be established by comparing the quantities of pesticide residue likely to be absorbed (derived from residue dissipation studies and dermal absorption measurements) with dose levels likely to be toxic (usually derived from acute or subacute toxicity studies). In practice, however, because of the complexity and uncertainty associated with such comparisons, reentry intervals are often based substantially upon accident histories Clement Final Report at J.A. Vol. B. at 3-4. Clement called the interim standards it recommended for children "minimum entry times (METs)." Id. at 11. The Department initially referred to "safe reentry times" and "preharvest intervals" in its regulations. In its April 24, 1979 announcement, the agency explained that these terms do not express the standard here, i. e., the amount of elapsed time required from the last application of the pesticide or chemical to the entry to the 10- or 11-year-old hand harvester into the field. Therefore, this document deletes those terms wherever they appear and inserts the term, "minimum entry time." 44 Fed.Reg. 24059 (April 24, 1979) 12 E. g., Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), reprinted in J.A. Vol. A-33 at A50; Clement Associates, Inc., Safety Factors for Children Employed as Harvesters in Maine (Aug. 7, 1978), reprinted in J.A. Vol. A at A55, A83; Clement Associates, Inc., Safety Factors for Children Employed as Hand Harvesters of Strawberries and Potatoes: Final Report (May 18, 1979), reprinted in J.A. Vol. B at 13 (hereinafter cited as Clement Final Report) Clement also concluded: much of the critical information required for evaluating potential hazards to children is lacking. Specifically, there is essentially no information about rates of exposure or absorption by children, nor is there a body of experimental data on the toxic effects of pesticides in preadolescent animals. Accordingly, although we have reviewed data on metabolism, residue dynamics, and toxicity for each pesticide, we have not attempted to use these data in a formal way to set standards. For the reasons given above, we conclude that basing standards on these factors systematically would not be possible without the generation of extensive new data. Clement Final Report, J.A. Vol. B at 5-6. 13 The following language appears in both Clement Reports issued on August 7, 1978: Establishment of Preharvest Intervals that would assuredly protect the health of 10- and 11-year-olds would require a thorough scientific review of existing data on residue dynamics, metabolism, and toxicity of each of the pesticides to preadolescents and adolescents. J.A. Vol. A at A49, A81. The research group's final report included the following statement: We wish to make clear that the suggested METs cannot assure safety to 10- and 11-year-old harvesters. Because of major uncertainties in the data, we have used scientific judgment in deriving the proposed METs. The METs have been established on the basis of currently available data and may be subject to change as more data become available. We therefore strongly urge that a program of additional research be instituted. Clement Final Report, J.A. Vol. B at 13 (emphasis in original). In each report, the research group also recommended medical surveillance of all children exposed to pesticides or chemicals because of waivers. J.A. Vol. A at A50, A83; J.A. Vol. B at 13. 14 J.A. Vol. A at A50, A83 15 43 Fed.Reg. 36623 (Aug. 18, 1978) 16 For example, in its initial report, Clement Associates proposed preharvest intervals of 1) two days for Benomyl, which it noted had "been found to damage testicular tissue in rats"; 2) three days for Captan, "found to be carcinogenic in mice"; 3) ten days for Endosulfan (or Thiodan) which Clement acknowledged "at low doses has been found to inhibit growth and cause mortality in young mice"; and 4) seven days for Carbaryl, "found to have dose-dependent neurological and behaviorial effects in humans." Clement Associates, Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (August 7, 1978) at J.A. Vol. A at A45-A51. Each of these preharvest intervals was set at least twice as long as the intervals set by available standards for adults In its final report nearly a year later, Clement Associates found "convincing data" that Captan is carcinogenic and that Benomyl is "moderately or highly persistent and (has) serious toxic effects." Clement Report, J.A. Vol. B at 16. Therefore, Clement in its final report did not recommend minimum entry times for these and seven other substances with similar effects. At the same time, it increased the recommended delay period to 16 days for Endosulfan and 40 days for Carbaryl. 17 Letter from Edwin L. Johnson, Assistant Deputy Administrator for Pesticide Programs, EPA to Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Sept. 26, 1978), reprinted in J.A. Vol. A at A93 18 44 Fed.Reg. 22059 (April 3, 1979) (removing Dicofol, Captan, and Chlorthalonil) 19 Plaintiffs-appellants cite three National Cancer Institute Reports identifying the chemicals as carcinogens prior to the earlier April 18, 1978 rule. Plaintiffs' Br. at 17 n. 4 (citing NCI, "Bioassay of Captan for Possible Carcinogencity," Technical Report Series No. 15, 1977, transmitted by H. F. Kraybill of NCI, to Grover Wrenn of OSHA, July 27, 1977; NCI, "Bioassay of Dicofol for Possible Carcinogencity," Technical Report Series No. 90, 1978, transmitted by Ingeborg C. Blackwood of NCI to Eula Bingham of OSHA, April 25, 1978; NCI, "Bioassay of Chlorothalonil for Possible Carcinogenicity," Technical Report Series No. 41, 1978, transmitted by Ingeborg C. Blackwood of NCI to Eula Bingham of OSHA, June 7, 1978) 20 The Department also asked Clement Associates to research a 17th substance, "Benorex," but Clement Associates found no reference to it in the scientific literature it consulted. J.A. Vol. B at 2 21 44 Fed.Reg. 24058 (April 24, 1979); 44 Fed.Reg. 28663 (May 16, 1979). Also in these amendments, the Department created a new category for substances lacking sufficient data to set minimum entry times The Washington and Oregon State Farm Bureaus filed suit to enjoin implementation of the regulation, this time attacking the removal of Captan and Benomyl from the approved list (Captan removed altogether; Benomyl lacking sufficient data to set minimum entry times). A preliminary injunction was granted but then vacated in that case. Washington State Farm Bureau v. Marshall, Civil Action No. C79-197T; appealed, No. 79-4342. Plaintiffs here participated in that suit as amici curiae. 22 The National Association of Farmworker Organizations is "a non-profit national coalition of farmworker-governed, community based organizations committed to the protection of the rights of farmworkers of the United States." Plaintiffs' Br. at 6. Northwest Rural Opportunities is "a non-profit membership organization founded to promote the rights of migrant and low-income seasonal farmworkers in the state of Washington." Id. at 7 23 Amended Complaint, June 1, 1979, reprinted in J.A. Vol. A at A107, A117. Plaintiffs moved in the alternative for a temporary restraining order or preliminary injunction. With the consent of the parties, the court treated the hearing as one solely on the request for a preliminary injunction to permit an immediate appeal. Transcript of May 21, 1979 Hearing (Tr.), J.A. Vol. A at A188 24 E. g., Tr. at 41, J.A. Vol. A at A169, A171 (testimony of Herbert Cohn) 25 The judge questioned the Department's counsel about the meaning of Clement Associates' disclaimer that its recommended standards could not assure safety to children. The Department's counsel responded: We're dealing in a scientific area where, I think, everyone and certainly the scientists, first of all, will admit that there are no absolutes to be dealt with here and all we're suggesting is given the fact that Congress changed this law and seemed to indicate that there had to be some kind of standards applied, that we had to look at what data was available. . . . (Clement Associates) look(ed) at the data which was, in fact, available and then applying scientific judgment, came up with recommended entry times and since the Secretary is charged basically that, (sic) reasonably it is not arbitrary and capricious, again I submit that acting on the basis of that, fully recognizing that the hedges that must be contained for scientific purposes. His acting in just accepting that data as scientific data submitted to him is, in fact, adequate. Tr. at 17, J.A. Vol. A at A145. 26 Tr. at 53-54, J.A. Vol. A at A186-187 (testimony of Mary Kornreich) 27 See National Association of Farmworker Organizations et al. v. Marshall, No. 79-1044 (D.D.C. May 4, 1978) (Findings of Fact and Conclusions of Law) (P 4, Conclusions of Law), J.A. Vol. A at A125-A126 (hereinafter cited as District Court Op.) 28 Id. at J.A. Vol. A at A126 (P 7, Conclusions of Law) 29 Id. at J.A. Vol. A at A127 (P 11, Conclusions of Law). It was on this basis of a definitive assessment of the merits that the district court found plaintiffs had not made the showing requisite to obtain preliminary relief. Id 30 The court concluded: The Secretary's decision to issue waivers and set preharvest intervals in the face of some scientific uncertainty over the precise effects of pesticide exposure upon the health and well-being of 10 and 11 year old children was consistent with the congressional intent to provide for the employment of 10 and 11 year olds in the hand harvesting of short season crops. The Secretary, in issuing regulations, could not delay the issuance of waivers until he received assurances that certain pesticides were absolutely safe or presented zero risk because the state of scientific knowledge could not in the near future, if ever, provide such assurances. A requirement of absolute safety or zero would in effect nullify the congressionally authorized waiver provision. Id. at J.A. Vol. A at A126-27 (P 8, Conclusions of Law). 31 Id. at J.A. Vol. A at A12 F. (P 9, Conclusions of Law) 32 Id. at J.A. Vol. A at A12 F. (P 10, Conclusions of Law) 33 District Court Op. at PP 9, 11, J.A. Vol. A at A127 34 See Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (D.C. Cir. 1958) 35 E. g., Doeskin Products v. United States Paper Co., 195 F.2d 356, 358 (7th Cir. 1952). This principle applies even if some harm has already been done where "(t)he granting of preliminary relief will tend to minimize any future harm until (the) suit is decided on the merits." Perry v. Perry, 190 F.2d 601, 603-4 (D.C. Cir. 1951) 36 E. g., Ohio Oil v. Conway, 279 U.S. 813, 815, 49 S. Ct. 256, 257, 73 L. Ed. 972 (1929) Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 559 F.2d 841 (D.C. Cir. 1977); Dorfman v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) 37 Plaintiff organizations aver that they represent farmworker families, including their children. The Department has not pointed to anything in the record to the contrary. Thus, we must accept this averment as true 38 See 29 C.F.R. § 575.5(d) (1979) 39 See Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972 (1929) (quoted in n. 52 infra ). Substantial risk of irreparable harm can be sufficient grounds for a preliminary injunction. See Guiness-Harp Corp. v. Joseph Schlitz Brewing Co., 613 F.2d 468 (2d Cir. 1980); Jacksonville Post Authority v. Adams, 556 F.2d 52, 58 (D.C. Cir. 1977). In the context of safety regulations, risk is itself the harm prohibited by law. Exposure to that harm thus is irreparable injury 40 Letter from Edwin L. Johnson, Assistant Deputy Assistant for Pesticide Programs, EPA, to Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Sept. 26, 1978), Plaintiffs' Exhibit 9 in support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A92 (hereinafter cited as EPA Letter) 41 Id. at J.A. Vol. A at A93 42 Some of the factors listed by OSHA included the "greater uptake of (pesticides) in the developing tissue and organ systems of younger aged children," "increased susceptibility to asthma," "increased susceptibility to agents that interfere with calcium metabolism," "increased susceptibility to agents that interfere with protein utilization," and "increased sensitivity to hormonal imbalances." Memorandum from Peter F. Infante, Director, Office of Carcinogen Identification and Classification, OSHA, to Grover Wrenn, Director, Health Standards Program, OSHA (June 16, 1978), Plaintiffs' Exhibit 3 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A26 (hereinafter cited as OSHA Memo) Clement Associates similarly identified factors likely to make children "more susceptible than adults to the effects of toxic substances." Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), J.A. Vol. A at A42; Clement Associates, Safety Factors for Children Employed as Harvesters of Potatoes in Maine (Aug. 7, 1978), J.A. Vol. A at A64. 43 EPA Letter at J.A. Vol. A at A93 ("In our opinion, we don't believe the data available allows us to make a decision on the safety of children either in preharvest or reentry situations."); OSHA Memo at A28 (it is "impossible with reasonable certainty to determine that protection of adult workers exposed to pesticides is adequate, let alone children of peripubital ages"); Clement Final Report, J.A. Vol. B at 13 ("We wish to make clear that the suggested METs (minimum entry times) cannot assure safety to 10- and 11-year-old harvesters. Because of major uncertainties in the data, we have used scientific judgment in deriving the proposed METs.") 44 The government claims that the regulations limit the scope of harm to children because waivers can be granted only where 1) the children live within commuting distance to the place of employment and 2) the parents provide written consent. Gov't Br. at 34. Apparently, the first prong of this argument is that some group of children would never be affected by the waivers probably migrant youth. The persuasiveness of this argument escapes us. The second prong relies on the view that parents will protect children from the risk. That assumption flies in the face of the economic realities likely to induce child labor in the first instance Moreover, both claims are beside the point. The issue is not how many children will be irreparably harmed but whether any children represented by the plaintiffs would be. On this record, the plaintiffs have established that the regulations would cause exposure of at least some children to known health risks. 45 29 U.S.C.A. § 213(c)(4)(A) (1979). This is the result even leaving in place the portion of the regulations that directs applicants to submit either A) "a statement that no pesticides or other chemicals were used on the crop to be harvested" or B) "data which upon study by the Secretary or the Secretary's designee establishes a basis for minimum entry time which would protect 10- and 11-year-old hand harvesters from adverse effects of the pesticide or chemical used." 29 C.F.R. § 575.5(d)(1)(i)(A), (B) (1979). These portions of the regulations survive our review. See n. 106 infra 46 29 C.F.R. § 575.5(d)(1)(i)(C) (1979). Under any circumstances, the other conditions for waivers would also have to be satisfied with objective data provided by the applicants. E. g., 29 C.F.R. § 575.3(b)(2)(ii) (proof required that "(w)ithout 10 and 11 year olds the industry would suffer severe economic disruption"); 29 C.F.R. § 575.3(b)(2)(v) (1979) (proof required that "(i) ndividuals 12 years and over are not available for employment") 47 29 U.S.C.A. § 213(c)(4)(A)(i) (1979); 29 C.F.R. § 575.3(b)(2)(ii) (1979) 48 Ever since 1966, health and safety requirements have restricted the availability of children under 16 years of age as agricultural workers. See 29 U.S.C.A. § 213(c)(2) (1979) (codifying the Fair Labor Standards Amendments of 1977, P.L. 89-601, § 203(d)): The provisions of (the child labor prohibition) shall apply to an employee below the age of sixteen employed in agriculture in an occupation that the Secretary of Labor finds and declares to be particularly hazardous for the employment of children below the age of sixteen, except where such employee is employed by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person. Since 1974, children under 12 could be employed in agriculture only if 1) employed by their parents, or persons standing in the place of their parents or 2) employed with the consent of their parents, or persons standing in the place of their parents, on small farms exempt from the Fair Labor Standards Act, 29 U.S.C. § 213(c)(1)(A) (1976) (codifying Fair Labor Standards Act Amendments of 1974, P.L. 93-259, § 25). The current provision, which requires objective data that pesticide exposure will not adversely affect 10- and 11-year-old child hand harvesters, was enacted in 1977. 29 U.S.C.A. § 213(c)(4) (1979) (codifying Fair Labor Standards Amendments of 1977, P.L. 95-151, § 8). 49 Few waivers have actually been granted since 1977. See Memorandum from Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor, to Ray Marshall, Secretary of Labor (June 14, 1978), Plaintiffs' Exhibit 13 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A96 (several hundred initial waiver applications denied, a few asked to provide more information). Due to a temporary restraining order issued by a district court in the State of Washington, some 3900 children aged 11 and under were employed during the June 1979 strawberry harvest. Plaintiffs' Br. at 13 n. 2 (citing Washington State Farm Bureau v. Marshall, No. C78-135T (W.D.Wash.1978), and Memorandum from Charles Pugh, Director, Office of Program Development and Accountability, Department of Labor, to Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Oct. 13, 1978), Plaintiffs' Exhibit 4 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A31). Employers' reliance on this employment pool would surely be mistaken as it includes children beneath the statutory minimum age even under the waiver provision 50 Virginian Ry. Co. v. System Federation, 300 U.S. 515, 552, 57 S. Ct. 592, 601, 81 L. Ed. 789 (1937), quoted with approval, Yakus v. United States, 321 U.S. 414, 441, 64 S. Ct. 660, 675, 88 L. Ed. 2d 834 (1944) 51 This appears to be the balance struck by Congress. See infra p. 620 52 This court held in Washington Metropolitan Area Transit Comm'n v. Holiday Tours : An order maintaining the status quo is appropriate when a serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant. There is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical probability of success. 559 F.2d 841, 844 (D.C. Cir. 1977). Similarly, the Supreme Court concluded that: Where the questions presented by an application for an interlocutory injunction are grace, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his favor, while if the injunction be granted the injury to opposing party, even if the final decree be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually will be granted. Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972 (1929). 53 Delaware & Hudson Ry. Co. v. United Transportation Union, 450 F.2d 603, 620 (D.C. Cir. 1971) 54 See id. at 619-620 55 District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law PP 9, 10 (Finding "good cause" to suspend notice and comment), P 11 (Finding "plaintiffs have not shown the Secretary's actions to be arbitrary, capricious, or otherwise not in accordance with the law") 56 See 29 U.S.C.A. § 213(c)(4)(A) (1979) 57 Nat'l Academy of Sciences, Science and Technology: A Five-Year Outlook 462 (1979) 58 Id. at 462-63; Nat'l Academy of Sciences, Decision Making in Regulating Chemicals in the Environment (1975). See W. Lowrance, Of Acceptable Risk 99 (1976) 59 See, e. g., Monsanto Co. v. EPA, 613 F.2d 947 (D.C. Cir. 1979); Indus. Union Dep't v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) 60 District Court Op. at 7, J.A. Vol. A at A126, Conclusions of Law P 8. The Clement expert testified before the district court that she knew "of no way to prove that any human being can be exposed to (pesticides) with absolute safety." Tr. at 51, J.A. Vol. A at A184 61 29 U.S.C.A. § 213(c)(4)(A), (c)(4)(A)(iii) (1979) 62 Each report recounts the known hazards of specific pesticides and chemicals, the safety standards for adults (where existing), the current information on health effects from pesticides, the need to provide greater protection for children, and the disclaimer that Clement's interim recommendations "cannot assure safety to 10- and 11-year-old harvesters." Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), reprinted in J.A. Vol. A at A50; Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Potatoes in Maine (Aug. 7, 1978), reprinted in J.A. Vol. A at A83; Clement Final Report, reprinted in J.A. Vol. B at 13 Clement indicated that the Department merely asked it "to propose reentry standards that will provide reasonable assurance of safety for 10- and 11-year-old fieldworkers engaged in the hand harvesting of potatoes and strawberries." Clement Final Report, J.A. Vol. B at 5 (emphasis added). This assignment itself departed from the statutory requirement of "objective data . . . that . . . (t)he level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being" of the 10- and 11-year-old fieldworkers. 29 U.S.C.A. § 213(c)(4)(A), (c)(4)(A)(iii) (1979) (emphasis added). 63 E. g., Clement Final Report at 13 64 It bears noting, however, that the Secretary's action, taken without any evidence that the regulations would protect children exposed to pesticides, was in fact criticized by the agencies having expertise in the area. See EPA letter, J.A. Vol. A at A92; OSHA Memo, J.A. Vol. A at A88. Under such circumstances, the Secretary had a "heightened obligation" to demonstrate the propriety of his action. See State of Alaska v. Andrus, 580 F.2d 465, 475 n.44 (D.C. Cir. 1978), vacated in part sub nom. Western Oil & Gas Ass'n v. Alaska, 439 U.S. 922, 99 S. Ct. 303, 58 L. Ed. 2d 315 (1978) In addition, EPA staff apparently found fault with the Clement reports' methodology. The Department of Labor received a letter including EPA staff criticisms that 1) both the EPA adult standards and Clement standards for children confused the risk of dermal and inhalation with the risk of chronic ingestion; and 2) the Clement studies did not address the pesticides generally applied just before potato harvests. Letter from Edwin L. Johnson, Assistant Deputy Administrator for Pesticide Programs, EPA, to Donald E. Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Sept. 26, 1978). Plaintiffs' Exhibit 9 in Support of Plaintiffs' Motion for a Preliminary Injunction, reprinted in J.A. Vol. A at A92. 65 Clement Final Report, J.A. Vol. B at 5 (emphasis added). See also p. 607 n.6 supra (OSHA staff notes nonexistence of data on children and pesticides exposure). Thus, the district court neglected the apparent conflict between a statute that requires objective data of non-adverse health effects and regulations based on studies themselves disclaiming current scientific ability to assure safety 66 District Court Op. at 7, J.A. Vol. A at A126, Conclusions of Law P 8 67 In the Final Report, Clement explained its methods were selected because of "the severely limited time available for this study." Clement Final Report, J.A. Vol. B at 6. See Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), reprinted in J.A. Vol. A at A34, Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of potatoes in Maine (Aug. 7, 1978), reprinted in J.A. Vol. A at A57 The time constraints were severe. The Department first contracted with Clement on June 1978. Clement submitted final reports less than two months later, on August 7, 1978, in time for the September potato harvest. The Department adopted the Clement recommendations on August 18, 1978. The Department next contracted with Clement on March 19, 1979, just before the spring strawberry harvest season. Clement issued one report on March 30, 1979, while recommendations were adopted by the agency on April 10, 1979. Then on April 20, 1979, Clement issued another report, followed by two more Department modifications of its regulations on April 24, and May 16, 1979. Clement issued its final, summary report two days later, on May 18, 1979. 68 Tr. at 49, J.A. Vol. A at A182 (testimony of Mary Kornreich) 69 Letter to Xavier M. Vela, Administrator, Wage and Hour Division, Department of Labor, from Steven D. Tellinek, Assistant Administrator for Toxic Substances, EPA (May 4, 1978), Plaintiffs' Exhibit 1 in support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A13 70 Tr. at 54, J.A. Vol. A at A187 (testimony of Mary Kornreich) 71 Letter to Eula Bingham, Assistant Secretary for Occupational Safety and Health, Department of Labor, from Steven D. Tellinek, Assistant Administrator for Toxic Substances, EPA (Aug. 4, 1978), Plaintiffs' Exhibit 8 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A88-A89 72 District Court Op. at 7, J.A. Vol. A at A126, Conclusions of Law P 8. We do not here conclude what amount of evidence could ever support a list of approved pesticides 73 Compare Occupational Health and Safety Act of 1970, 29 U.S.C. § 655(b)(5) (1976) (OSHA to promulgate health and safety standards on basis of "best available evidence") with 29 U.S.C.A. § 213(c)(A) (1979) (agricultural waivers from child labor prohibitions not to be granted unless Secretary "finds, based on objective data submitted by the applicant" that pesticide exposure would not adversely affect children) 74 29 U.S.C.A. § 213(c)(4)(A) (1979) 75 The possibility of only one counter-example, arising with future events or detectable with future methods, jeopardizes absolute assurances. The uncertainty with environmental risks at this time is especially large because experts do not yet fully understand the mechanisms by which risks are generated, transmitted, and responded to over time. See, e. g., Page, A Generic View of Toxic Chemicals and Similar Risks, 7 Ecol.L.Q. 207, 208-16 (1978). See generally C. Hempel, Aspects of Scientific Explanation 39 (1965) (hypothesis containing term "all" is not verifiable) 76 This position was codified at 29 U.S.C. § 213(c)(4)(A)(ii) 77 See S.Conf.Rep.No.95-497, 95th Cong., 1st Sess. 15, reprinted in (1977) U.S.Code Cong. & Admin.News, pp. 3254, 3259 78 123 Cong.Rec. S16627 (daily ed. Oct. 7, 1977) (remarks of Sen. Hathaway) The government nevertheless argues that Congress intended to invest discretion in the Secretary because the Senator proposing the added language explained it directed the Secretary to "give appropriate consideration to the problem of chemicals." Gov't Br. at 27 n.16 (quoting 123 Cong.Rec. S16635 (daily ed. Oct. 7, 1977) (remarks of Sen. Williams)). The plaintiffs correct this misconception in noting that the same Senator supported placing stringent conditions on the waivers "to insure that young children will not be exposed to the hazardous effects of pesticides and herbicides." Plaintiffs' Br. at 26 (quoting 123 Cong.Rec. S16626 (daily ed. Oct. 7, 1977) (remarks of Sen. Williams)). 79 District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 8 80 Id. at 7, J.A. Vol. A at A126, Conclusions of Law P 8 81 This situation was recognized and approved by the only portion of the regulations that was subject to notice and comment. 43 Fed.Reg. 26567 (June 21, 1978) (discussing changes to § 575.5(d) in light of comments received) 82 29 C.F.R. § 575.5(d) (1979) 83 See District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 8. During argument the judge indicated that requiring absolute safety in this area would be like requiring absolute safety in a nuclear plant, in which case, "you might have to shut down operations." Tr. at 49, J.A. Vol. A at A192. The judge also indicated concern that the Secretary had "neither the appropriations nor the resources to conduct through his own personnel the studies required." Id. at 57, J.A. Vol. A at A190 84 29 U.S.C.A. § 213(c)(4)(A) (1979) (emphasis added) 85 It is also clear that the statute provides no grounds to balance safety with cost, technological feasibility, or the employers' labor needs. Congress, not the courts, must act if such balancing considerations are to be included in the statutory scheme 86 See 29 C.F.R. § 575 (1979) (citing 29 U.S.C. §§ 212, 213, 218; Secretary of Labor's Order No. 1675, 40 Fed.Reg. 55913; Employment Standards Order No. 2-75, 40 Fed.Reg. 56743) 87 See, e. g., Pickus v. U. S. Board of Parole, 543 F.2d 240 (D.C. Cir. 1976); Pacific Gas & Electric Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974) 88 Compare 43 Fed.Reg. 26562 (June 21, 1978) with 44 Fed.Reg. 22061 (April 13, 1979); 44 Fed.Reg. 24059 (April 24, 1979), and 44 Fed.Reg. 29040 (May 18, 1979) 89 43 Fed.Reg. 26564 (June 21, 1978). The regulatory language initially adopted for this purpose is still part of the existing regulation. See Fed.Reg. 26567 (June 21, 1978) (§ 575.5(d)); 29 C.F.R. § 575(d)(1)(i)(A), (B) (1979) 90 District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 9 91 Gov't Br. at 29 92 See 5 U.S.C. § 553(b)(B) (1976). Although acknowledging that the emergency nature of legislation may provide good cause for promulgating immediately effective regulations, the Temporary Emergency Court of Appeals declined to find good cause for price control regulations issued without notice or comment. Tasty Baking Co. v. Cost of Living Council, 529 F.2d 1005, 1015 (Em.App.1975). Certainly the need for immediate regulations is no greater here, where children are assuredly protected by the statute until waivers are granted, and time for notice and comment can insure sufficiently protective regulations for issuing waivers 93 (W)hen a health-related standard such as this is involved, the good cause exemption may not be used to circumvent the legal requirements designed to protect the public by ensuring that interested persons will have the opportunity to bring to the agency's attention all relevant aspects of the proposed action and thereby enhance the quality of agency decisions Community Nutrition Institute v. Butz, 420 F. Supp. 751 (D.D.C.1976). Where the knowledge base for rules is uncertain, public confidence is possible only if the procedures followed promote full and open debate. 94 Gov't Br. at 31 95 Id. at 29. See District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 10 96 See Public Service Comm'n v. FPC, 511 F.2d 338 (D.C. Cir. 1975) 97 See supra pp. 608-610 98 Affidavit of Miriam B. Huntley, Executive Assistant to the Assistant Secretary of Labor for the Employment Standards Administration, submitted in Washington State Farm Bureau v. Marshall, Civ. No. C79-197T (W.D.Wash.) (May 25, 1979), Plaintiffs' Exhibit 14 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A98 99 See 5 U.S.C. § 553(b)(B) (1976) (criterion of good cause exception to notice and comment requirement) 100 National Association of Farmworker Organizations v. Marshall, 628 F.2d 604 (D.C. Cir. 1980) 101 Memorandum Order, National Association of Farmworker Organizations v. Marshall, Civ. No. 79-1044 (D.D.C. Jan. 11, 1980) 102 See Appendix. For similar treatment by this court, see Kosty v. Lewis, 319 F.2d 744, 749 (D.C. Cir. 1963), cert. denied, 375 U.S. 964, 84 S. Ct. 482, 11 L. Ed. 2d 414 (1964). See also Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593, 600 (7th Cir. 1972) (directing district court to enter summary judgment for plaintiff in review of denial of preliminary injunction). Such treatment, although unusual, is especially called for where "(i)t would be a waste of judicial resources to remand . . . for trial." Id. See also Susquehanna Corp. v. American Sulphur Co., 423 F.2d 1075 (5th Cir. 1970) (dismissing suit although trial court granted preliminary injunction) 103 29 U.S.C.A. § 213(c)(4)(A), (c)(4)(A)(iii) (1979) 104 E. g., 44 Fed.Reg. 24058 (April 24, 1979): (A)s previously stated by the Secretary, the Department of Labor has undertaken a continuing study of the use and effect of pesticides and other chemicals used in short season crops in order to establish minimum entry times for specified pesticides and chemicals for use on specified crops. At oral argument, the Department's counsel indicated that the EPA was entering an agreement to assist in developing pesticide exposure standards for 10 and 11 year olds. 105 See 28 U.S.C. § 2106 (1976) 106 The regulations to be enjoined list the pesticides approved for use with specified minimum entry times. 29 C.F.R. § 575.5(d)(1)(i)(C); (d)(2) (1979). Our judgment leaves intact the portion of the regulation directing applicants to submit either a statement that they use no pesticides or data permitting the Secretary or his designee to determine the safety factors from exposure to pesticides used. See 29 C.F.R. § 575.5(d)(1)(i)(A), (B) (1979). This portion was subject to notice and comment, and is clearly authorized by the statutory waiver provision. See supra p. 607	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2042329/	890 N.E.2d 803 (2008) JONES v. STATE. No. 45A03-0711-PC-511. Court of Appeals of Indiana. July 16, 2008. RILEY, J. Disposition of case by unpublished memorandum decision. Affirmed. BAKER, C.J. Concurs. ROBB, J. Concurs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2489742/	72 So.3d 753 (2011) SHORES v. STATE. No. 1D11-4642. District Court of Appeal of Florida, First District. October 5, 2011. DECISION WITHOUT PUBLISHED OPINION Habeas Corpus denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/407399/	685 F.2d 443 Jones, In re 81-4254 UNITED STATES COURT OF APPEALS Ninth Circuit 7/6/82 1 N.D.Cal. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/407457/	685 F.2d 446 Soo Nam Kimv.Dahlin 81-4459 UNITED STATES COURT OF APPEALS Ninth Circuit 5/28/82 D.Hawaii AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/746211/	124 F.3d 223 Herbert Johnsonv.City of Fort Lauderdale NO. 96-4052 United States Court of Appeals,Eleventh Circuit. Aug 18, 1997 S.D.Fla., 114 F.3d 1089 1 DENIALS OF REHEARING EN BANC.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/742778/	116 F.3d 1484 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Myron KOERNER, Appellant,Marvin T. RUNYON, Postmaster General of the United StatesPostal Service, Appellee. No. 97-1106. United States Court of Appeals, Eighth Circuit. Submitted: June 12, 1997Filed: June 24, 1997 Appeal from the United States District Court for the Western District of Missouri. Before BOWMAN, FLOYD R. GIBSON, and MORRIS, SHEPPARD, ARNOLD, Circuit Judges. PER CURIAM. 1 Myron Koerner, the plaintiff below, appeals the order of the District Court1 granting the motion of the defendant, the Postmaster General, for summary judgment in this action brought under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797b (1994). Koerner challenges the court's decision in a variety of ways. Having reviewed the case, we conclude that the District Court did not err. Koerner has offered no 2 evidence to show that he is "otherwise qualified" for either of the existing positions in question or that reasonable accommodation is possible. We reject as legally meritless his argument that the Postal Service had a duty to create for him a position comparable to the high-level management position he once held. Similarly, he has shown no basis upon which a court could find that he was a victim of unlawful discrimination. Accordingly, the order of the District Court is 3 AFFIRMED. See 8th Cir. Rule 47B. 1 The Honorable D. BROOK BARTLETT, Chief Judge, United States District Court for the Western District of Missouri	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/2512020/	234 P.3d 983 (2010) 348 Or. 461 STATE v. DILLARD. (S058411). Supreme Court of Oregon. June 24, 2010. Petition for Review Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1017082/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-6478 CHARLES CECIL THOMAS, Plaintiff - Appellant, versus MICHAEL W. BUTLER; GERALD W. JOHNSON; OFFICE OF THE SHERIFF, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-04- 2994-1-AMD) Submitted: August 19, 2005 Decided: September 8, 2005 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles Cecil Thomas, Appellant Pro Se. John Francis Breads, Jr., LOCAL GOVERNMENT INSURANCE TRUST, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Charles Cecil Thomas appeals the district court’s order summarily dismissing his complaint in which he alleges that law enforcement officers of the “Leonardtown Police Department” and the “Office of the Sheriff” of St. Mary’s County, Maryland, impermissibly seized his vehicle. We affirm. In 2004, Thomas filed a complaint in state court against Detective Michael W. Butler, Detective Gerald W. Johnson, the “Office of the Sheriff,” and “Leonardtown, Maryland,” in which he described a tort claim arising from the alleged illegal seizure of his vehicle by “the Leonardtown Police” in “February of 2003.” When Thomas later amended his complaint to state a claim under the Fourth Amendment, based on the impermissible search and seizure of his Ford Explorer, the Defendants removed the case to federal district court. Ultimately, the district court granted the Defendants’ motion for summary judgment and dismissed Thomas’ complaint in its entirety. Citing Younger v. Harris, 401 U.S. 37, 45-46 (1971), Thomas appeals, asserting that (1) the district court erred in exercising jurisdiction over the subject matter; and therefore, (2) the district court erred when it refused to remand his case to the state court. Pursuant to Younger, 401 U.S. at 45-46, a federal court may not award declaratory or injunctive relief that would affect pending state criminal proceedings absent extraordinary - 2 - circumstances involving a great and immediate threat to federally protected rights, such as bad faith prosecution, a patently unconstitutional statute, or a biased state tribunal. Under Younger, abstention is therefore appropriate if: (1) there are ongoing state judicial proceedings; (2) the proceedings involve important state interests; and (3) the state proceedings offer an opportunity to present and resolve federal and constitutional claims. Employers Res. Mgmt. Co. v. Shannon, 65 F.3d 1126, 1134 (4th Cir. 1995) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)); Martin Marietta Corp. v. Md. Comm’n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994). This court reviews a district court’s decision to abstain for abuse of discretion. Shannon, 65 F.3d at 1134. Because Thomas does not expressly seek to enjoin or dispute the settlement of his forfeiture action, we find Younger inapplicable to the instant appeal. Thus, removal was proper under 28 U.S.C. § 1441(b) (1994), because the district court has jurisdiction over civil actions arising under the laws of the United States without regard to the citizenship or residence of the parties. Jurisdiction over Thomas’ state law claims was proper under § 1441(c). Based on our careful review of the record, we find that the district court did not abuse its discretion in dismissing Thomas’ entire complaint. Moreover, if Thomas wishes to challenge the settlement of the - 3 - forfeiture action as unfair in any way, he is free to pursue such relief in the appropriate state court. Accordingly, we affirm the district court’s order summarily dismissing Thomas’ complaint and denying his request for remand to state court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 4 -	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/62909/	[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JULY 18, 2008 No. 07-14694 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 04-80727-CV-ASG ZURICH AMERICAN INSURANCE COMPANY, a Foreign corporation, Plaintiff-Counter-Defendant-Appellee, versus FRANKEL ENTERPRISES, a Foreign corporation, Defendant-Appellant, NICHOLAS C. PEDANO, an individual, MARY B. PEDANO, an individual, Defendants-Counter-Claimants-Appellants. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (July 18, 2008) Before ANDERSON, MARCUS and WILSON, Circuit Judges. PER CURIAM: Frankel Enterprises (“Frankel”) and Nicholas and Mary Pedano (“Pedanos”) appeal from the district court’s grant of summary judgment to Zurich American Insurance Company (“Zurich”). Because we find that the district court correctly held that there was no genuine issue of material fact, such that summary judgment was appropriate, we affirm the judgment of the district court. I. FACTS The Pedanos purchased a house from Frankel Enterprises in 1992.1 The house suffered from roof leaks, and although Frankel attempted to repair the defects, the leaks continued. After the homeowner’s association pressure-washed the Pedanos’ roof in 2000, water infiltrated the house, allegedly causing property damage and mold. The Pedanos filed suit against Frankel, alleging that his negligent construction and repairs led to the water leakage. Frankel was listed as an additional insured on a commercial general liability policy issued by Zurich with a $1 million each occurrence policy limit. Frankel 1 Because this appeal is from a grant of summary judgment, we view the evidence in the light most favorable to the nonmoving party. See Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 556 (11th Cir. 1997). Accordingly, the facts as recited here are viewed in the light most favorable to appellants. 2 notified Zurich of the Pedanos’ lawsuit, and Zurich responded with a letter committing to participate in Frankel’s defense but reserving all rights under the policy. Zurich hired a lawyer, Michael Kraft (“Kraft”), to defend Frankel. In later correspondence, Zurich stated that it believed some of the Pedanos’ claims fell outside of the policy coverage. However, Zurich continued to provide Frankel with Kraft as defense counsel. In April 2004, the parties in the Pedanos’ lawsuit participated in court-ordered mediation. Present at the mediation were Frankel’s representative, counsel for Frankel, Kraft, the Pedanos and the Pedanos’ lawyer. A representative for Zurich attended the mediation by phone, but spoke only with Kraft. As a result of mediation, Frankel and the Pedanos reached a settlement of $1.8 million. Under the agreement, Frankel would assign his insurance claim with Zurich to the Pedanos. Zurich did not expressly consent to this settlement, although Kraft did not state to anyone in the mediation that Zurich objected to the settlement. After the mediation, Zurich informed Frankel that it did not consider itself bound to the settlement because Frankel had entered the settlement without Zurich’s express consent.2 In August 2004, Zurich filed a declaratory judgment action, 2 The policy contained several clauses regarding the insured’s obligations in the event of a lawsuit and settlement negotiations: 3 seeking a judgment that Zurich was not bound by the settlement agreement because Frankel had failed to obtain Zurich’s authorization to enter into the settlement. After a period of discovery, the district court granted summary judgment to Zurich. Frankel and the Pedanos now appeal. II. DISCUSSION We review a grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party and applying the same legal standards as the district court. Gitlitz, 129 F.3d at 556. Summary judgment is appropriate when the pleadings and other evidence demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 2. Duties in The Event of Occurrence, Claim or Suit. . . . . c. You and any other involved insured must: . . . 3. cooperate with us in the investigation or settlement of the claim or defense against the “suit”; and d. No insured will, except at the insured’s own cost, voluntarily make a payment, assume an obligation, or incur any expense, other than for first aid, without our consent. 3. Legal Actions Against Us No person or organization has a right under this Coverage Part: a. To join us as a party or otherwise bring us into a “suit” asking for damages from an insured; or b. To sue us on this Coverage Part unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial; but we will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant’s legal representative. 4 Fed. R. Civ. P. 56(c). In this case, the district court found that there was no genuine issue of material fact regarding whether Zurich consented to the settlement, entitling Zurich to judgment as a matter of Florida law. The district court’s holding was based in large part on one of Frankel’s responses to Zurich’s requests for admission. Asked to admit that “Frankel did not obtain Zurich’s authorization to enter into the Memorandum of Settlement reached during the April 22, 2004 mediation,” Frankel replied “admitted.” As a result, the district court held, appellants could not assert that there was a genuine issue of material fact regarding Zurich’s consent to the settlement. On appeal, appellants challenge the district court’s determination that there is not a genuine issue of material fact, and also assert that Zurich should be estopped from arguing that Frankel was not authorized to enter into the settlement. We consider each of these arguments in turn below. A. Genuine Issue of Material Fact Regarding Zurich’s Authorization Appellants argue that there is a genuine issue of material fact regarding whether Zurich authorized the settlement because the request for admission was ambiguous and Kraft acted as Zurich’s agent in the mediation. Federal Rule of Civil Procedure 36 governs requests for admissions. Under the rule, “[a] matter admitted . . . is conclusively established unless the court, on motion, permits the admission to 5 be withdrawn or amended.” Fed. R. Civ. P. 36(b). If the answering party finds a request for admission wanting, the party may object to the request, stating the grounds for objection. Fed. R. Civ. P. 36(a)(5). Thus, Rule 36 itself contains two procedures for responding to problematic requests for admission: raising an objection or moving the court to withdraw or amend the admission. In this case, Frankel neither objected to the request for admission regarding Zurich’s authorization in his response nor filed a motion with the court seeking to withdraw or amend his response. Therefore, under Rule 36, Frankel’s admission that he did not obtain Zurich’s authorization before entering into the settlement agreement is conclusively established. Even though appellants argue that Kraft’s conduct in the mediation could allow a jury to conclude that Zurich was consenting to the settlement, we cannot ignore Frankel’s admission.3 See Hughes v. Vanderbilt Univ., 215 F.3d 543, 549 (6th Cir. 2000) (holding that plaintiff’s statement in her initial pleading that information about the alleged medical experiments was widely publicized in 1994 “constitute[d] an admission that a reasonable person should have been aware of the claims at issue by that date” despite plaintiff’s subsequent, 3 We note that appellants argue for the first time on appeal that Zurich’s request for admission was ambiguous. In general, this Court does not entertain arguments raised for the first time on appeal. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994). We see no reason to deviate from that general rule in this case. Therefore, we do not reach the merits of appellants’ ambiguity argument here. Moreover, we note that appellants have failed to identify in what manner the admission is ambiguous. 6 conflicting affidavit). Similarly, we cannot accept the argument that Kraft was acting as Zurich’s agent in the settlement negotiations. Under Florida law, any defense counsel hired to represent the insured is an independent contractor, and the insurer is not vicariously liable for counsel’s acts and omissions. See Aetna Cas. & Sur. Co. v. Protective Nat’l Ins. Co. of Omaha, 631 So. 2d 305, 308 (Fla. Dist. Ct. App. 1994). Because Frankel admitted that he did not obtain Zurich’s authorization before agreeing to the settlement, there is no genuine issue of material fact and Zurich is entitled to judgment as a matter of law. B. Estoppel Appellants also argue that Zurich should be estopped from arguing that the settlement was unauthorized. Under Florida law, equitable estoppel is to be applied with great caution, and each element must be proven with clear and convincing evidence. Watson Clinic, LLP v. Verzosa, 816 So. 2d 832, 834 (Fla. Dist. Ct. App. 2002). In order to succeed with a defense of equitable estoppel, the party claiming estoppel must prove that: “(1) the party against whom estoppel is sought must have made a representation about a material fact that is contrary to a position it later asserts; (2) the party claiming estoppel must have relied on that representation; and (3) the party seeking estoppel must have changed his position to his detriment based on the representation and his reliance on it.” Id. In this case, appellants cannot prove 7 the first element. Zurich made no representation, through Kraft or otherwise, that it authorized Frankel to enter into the settlement. As a result, Zurich is not estopped from arguing that Frankel was not authorized to enter into the settlement. Accordingly, the judgment of the district court is AFFIRMED.4 4 Appellants’ request for oral argument is DENIED. 8	01-03-2023	04-26-2010
https://www.courtlistener.com/api/rest/v3/opinions/863665/	IN THE SUPREME COURT OF MISSISSIPPI NO. 2000-KA-00109-SCT WILLIAM LYNN PRESLEY v. STATE OF MISSISSIPPI DATE OF JUDGMENT: 08/13/1998 TRIAL JUDGE: HON. WALTER M. O'BARR COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: THOMAS L. MUSSELMAN ATTORNEYS FOR APPELLEE: OFFICE OF ATTORNEY GENERAL BY: LEE MARTIN THOMAS BUCHANAN HOOD KEITH MILLER DISTRICT ATTORNEY: CRIMINAL-FELONY NATURE OF THE CASE: DISPOSITION: AFFIRMED - 06/14/2001 MOTION FOR REHEARING FILED: 7/13/2001; denied 8/23/2001 MANDATE ISSUED: 8/30/2001 BEFORE BANKS, P.J., WALLER AND COBB, JJ. WALLER, JUSTICE, FOR THE COURT: ¶1. William Lynn Presley pled guilty to eight (8) counts of embezzlement and was sentenced to twenty (20) years on each of the eight (8) counts, with ten (10) years suspended on each, to be served concurrently. The conviction and sentence arise out of a misuse of public funds while Presley served as Chancery Clerk of Jackson County, Mississippi. Presley appeals an order of the circuit court denying his motion to enforce his plea agreement and raises two issues: (1) the procedural treatment of motions to enforce a plea agreement; and (2) his claim that he is entitled to a lower sentence because he provided information to law enforcement authorities pursuant to a "pledge of cooperation" contained in a plea agreement. FACTS AND PROCEEDINGS BELOW ¶2. Presley was indicted in the Jackson County Circuit Court on twenty-eight (28) counts of embezzlement in the aggregate amount of $1.28 million. After pleading not guilty to the charges, he entered into a memorandum of understanding ("MOU") with the State and the United States in which he agreed to plead guilty to eight (8) counts of embezzlement, cooperate in ongoing state and federal prosecutions, and resign as Chancery Clerk. In return, the State agreed, depending upon Presley's cooperation, to recommend a sentence of not more than three (3) years to run concurrently with any federal sentence he might receive and dismiss the remaining state charges. As stated above, this recommendation was conditioned upon Presley's "full cooperation," and the State retained the sole discretion to determine if Presley had fully cooperated. If the State, in its discretion, determined that Presley had not fully cooperated, the State agreed to recommend not more than twelve (12) years. ¶3. After signing the MOU, on July 14, 1998, Presley changed his plea of guilty before Circuit Judge Walter O'Barr, who was specially appointed by this Court after all of the Jackson County circuit judges recused themselves. Sentencing was set for August 13, 1998. During the change of plea hearing Judge O'Barr specifically stated that he did not join in the plea agreement and would not be bound thereby. ¶4. Presley met with state and federal agents on several occasions and gave information which incriminated himself and others on federal charges. He alleges that he was prepared to take a lie detector test, but he was never requested to do so. As agreed to in the MOU, the remaining state charges were dismissed. However, on August 5, 1998, shortly before sentencing, the District Attorney faxed a letter to Presley's counsel stating that, in the opinion of the FBI and the Attorney General's Office, Presley had not complied with his "pledge of cooperation." ¶5. At the sentencing hearing the State announced that Presley had failed to cooperate with the prosecution, and it therefore did not recommend a three-year sentence because this recommendation was conditioned on Presley's full cooperation. Judge O'Barr, who again stated that he was not bound by the plea agreement, sentenced Presley to serve twenty (20) years on each of the eight (8) counts to run concurrently. He then suspended ten (10) years on each count. ¶6. On September 2, 1998, twenty days after the sentencing and two days before the term of court ended on September 4. Presley filed a motion to enforce the plea agreement. On September 3, Judge O'Barr died without having ruled on Presley's motion. We appointed Judge William F. Coleman, Jr., to hear the motion on July 30, 1999. ¶7. After a hearing, Judge Coleman found that the State had failed to prove that Presley had not cooperated with the investigation, but denied the motion, finding that the term of court for which he (Judge Coleman) had been appointed had expired, and that he therefore did not have jurisdiction to hear the motion. DISCUSSION I. WHETHER THE TRIAL COURT COULD CONSIDER A MOTION TO ENFORCE PLEA AGREEMENT FILED AFTER SENTENCING AND BROUGHT FOR HEARING AFTER THE TERM OF COURT HAS ENDED. ¶8. The State claims that, because Presley did not file a motion to enforce plea agreement prior to the sentencing hearing, Presley waived his right to file such a motion. There is no Mississippi case, statutory law or rule on point, but there are rules of criminal procedure and case law in other jurisdictions which address this issue. ¶9. In Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), on direct appeal from a New York state court, the defendant withdrew his not guilty plea and entered a plea of guilty after entering into a plea agreement. Between the entry of the plea and sentencing, another prosecutor took over the case. At sentencing the new prosecutor claimed not to know anything about the plea agreement with the first prosecutor. The defendant immediately objected, but the court nevertheless sentenced him to the maximum term. The United States Supreme Court held, "when a guilty plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 262, 92 S. Ct. at 499. The Court concluded that: the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petition should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty. 404 U.S. at 262-63, 92 S. Ct. at 499. ¶10. In State v. Woyan, No. 96CA1772, 1997 WL 426117 (Ohio Ct. App. July 21, 1997), the defendant pled guilty on April 24, 1996. On September 11, 1996, the defendant filed a motion to enforce plea agreement, and on September 13, he filed a motion to withdraw his guilty plea. The appellate court cited a state criminal procedural rule as providing: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. ¶11. The court noted that its rule was similar to Fed. R. Crim. P. 32(d),(1) which has been interpreted as follows: Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, . . . still the decision thereon is within the sound discretion of the trial court. . . . Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. . . . One who enters a guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion. Id. at 3 (quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir. 1978)). Under the federal rule, a motion for withdrawal of a plea may be made at any time before sentencing and, on a sufficient showing, even after sentencing. 3 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 537, at 188 (1982). See also United States v. Watson, 548 F.2d 1058, 1063 (D.C. Cir. 1977) ("There is no time limitation on when relief can be sought under Rule 32(d)."). ¶12. The State points out that "a judge may not alter or vacate a sentence once the term of court in which the defendant was sentenced has ended." Dickerson v. State, 731 So. 2d 1082, 1085 (Miss. 1998). In Dickerson, we treated a "Motion to Enter Correct Sentencing Order and/or Correct Sentencing Order, Suggestion of Law, and Appropriate Relief" as a "motion to obtain relief from a final judgment." Id. at 1085. We held that, although the motion was filed prior to the end of the term of court in which the sentence was imposed, the defendant failed to set the motion for hearing prior to the end of the term. His claim on appeal was denied as a result. Id. at 1086. It is clear that, "in the interests of justice," the merits of Presley's claims should be considered and the sentencing court should have jurisdiction over them so that "manifest injustice" may be avoided, even though his motion to enforce plea agreement was filed after sentencing. ¶13. With respect to the term of court issue, we find Miss. Code Ann. § 11-1-16 (1991) clearly gives a circuit court authority to consider a pending motion after a term has ended. Dickerson v. State is therefore overruled to the extent it is inconsistent with this statute. ¶14. In Griffin v. State, 565 So. 2d 545 (Miss. 1990), the circuit judge, in ruling on post-trial motions, granted a new trial on two counts in the indictment but denied a new trial on the one remaining count. After an appeal had been filed, the two defendants escaped and fled the jurisdiction. When they were recaptured the State moved the circuit court to vacate the order granting the new trial and reinstate the sentences on the two counts. After a lengthy discussion, we held that "the dispositive portion of the order setting aside the Griffins' convictions had all the finality of a final judgment, and clearly the passage of the next term of court deprived the circuit court of any further authority to reinstate them." Id. at 550. We find that this holding is correct if and only if there was no motion pending from the term of court in which the sentence was imposed. ¶15. In a case where a circuit judge revisited, pursuant to a sua sponte motion for reconsideration, a defendant's post-trial motions after an appeal was filed, we held that the circuit court had no jurisdiction to suspend a sentence after an appeal was filed, and the only time a trial judge can suspend a sentence is immediately after the defendant is convicted and at the time the trial judge announces and imposes sentence. If no appeal is perfected and defendant begins to serve the sentence imposed, the time has passed for the trial judge to suspend the sentence under § 47-7-33. Denton v. Maples, 394 So. 2d 895, 897, 898-99 (Miss. 1981). ¶16. Griffin and Denton do not need to be overruled because (1) the trial court lacked jurisdiction to reconsider a sentence due to the perfection of the appeal; and (2) there was no motion pending from the term of court in which the sentence was imposed to activate the applicability of § 11-1-16. ¶17. The case of Mississippi Comm'n on Judicial Performance v. Russell, 691 So. 2d 929 (Miss. 1997), wherein a circuit judge modified the sentences of four convicted felons, is distinguishable because the felons had been sentenced by other circuit judges in two instances, the felons had begun serving time in all four instances, no hearings were held in two instances, the felons' attorneys were never contacted in two instances, the State was never contacted in one instance, we had affirmed the conviction in one instance, and the elapsed time between two of the sentencings and the modifications were 4 years and 13 years. There was no motion pending at the end of the term in which sentencing was imposed in any of the four cases. ¶18. We have held that, in the absence of a statute authorizing a modification of a sentence, "once a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment." Harrigill v. State, 403 So. 2d 867, 868-69 (Miss. 1981). Our holding in the case sub judice does not change the Harrigill holding because § 11-1-16 gives the circuit court the power to rule on a pending motion outside the term of court. Also, it is worthwhile to note that § 11-1-16 was adopted two years after Harrigill was decided. ¶19. Of course, our holding that a circuit court cannot rule on motions which are not pending at the end of the term of court when sentencing was imposed does not apply to U.C.C.C.R. 10.05, which provides that a motion for a new trial should be filed within ten days of the entry of judgment. Therefore, if the judgment is entered on the last day of the term of court, a defendant still has ten days in which to file such a motion. II. WHETHER THE STATE BREACHED THE MEMORANDUM OF UNDERSTANDING AND DUE PROCESS CONCERNS. ¶20. Presley contends that (1) the State cannot unilaterally renege on a plea agreement on which a defendant has relied to his detriment; (2) the burden is on the State to prove by a preponderance of the evidence that the defendant breached the agreement and the breach was sufficiently material to warrant rescission; (3) the State never filed a formal motion to rescind the agreement as required by law; and (4) he is entitled to specific performance of the agreement. Presley cites to United States v. Castaneda, 162 F.3d 832, 836 (5th Cir. 1998): When the government believes that a defendant has breached the terms of [an agreement] and wishes to be relieved of performing its part of the bargain[,] due process prevents the government from making this determination and nullifying the agreement unilaterally. Instead, the government must prove to the court by a preponderance of the evidence that (1) the defendant breached the agreement, and (2) the breach is sufficiently material to warrant rescission. ¶21. A plea agreement is basically a binding contract between the prosecution and the defendant that, if the defendant does a, b, and c, the prosecution will do d, e, and f. If the defendant, relying on the promise of the prosecution to recommend a lenient sentence, pleads guilty as part of what he has promised to do, and the prosecution later unilaterally rescinds the contract, the defendant has already, in reliance on the contract, acted to his detriment. The defendant should at least be given the opportunity, before sentencing, to withdraw his plea. ¶22. Professor Charles Alan Wright has written that the granting of a motion to withdraw is within the discretion of the trial court, but withdrawal should be permitted if it was induced by fraud, mistake, imposition, misrepresentation, or misapprehension by the defendant of his legal rights. . . . The defendant may withdraw his plea of guilty when the prosecution has either coerced him by threats or persuaded him by deceit to enter such a plea. . . . *** Cooperation with government authorities is not alone sufficient to require the granting of a motion to withdraw a guilty plea, but where the defendant shows that his cooperation was induced by government representations which were repudiated, the motion should be granted. In any event, the court has discretion to permit withdrawal of the guilty plea where defendant has cooperated with the government. Wright, § 537, at 190, 191, 197 (emphasis added & footnotes omitted). A dispute as to the terms of a plea bargain agreement and whether the government breached the agreement required that evidentiary hearing be conducted in connection with defendant's motion to withdraw plea of guilty. United States v. Gonzalez-Hernandez, 481 F.2d 648, 650 (5th Cir. 1973). ¶23. However, in the case sub judice, the Court finds that Judge O'Barr's sentencing must be affirmed. Even though the State did not formally notify, by the filing of an appropriate motion, Presley of its intent to rescind the MOU, it did send a letter to Presley's attorneys advising them that it would not recommend the three-year sentence for each count. mentioned in the MOU. Presley therefore cannot credibly argue that he was not on notice that the State would not recommend the minimum sentence. Indeed, as discussed below, the State was not required to give notice of its recommendation because, even though it determined that Presley had not "fully cooperated," it recommended a sentence within the range mentioned in the MOU. ¶24. Even though the State did not recommend the minimum sentence mentioned in the MOU, it did reserve the right to decide unilaterally whether Presley had "fully cooperated" with its investigation . Furthermore, the MOU stated that the State would recommend twelve (12) years on each count if the State determined that Presley had not "fully cooperated." The State therefore fulfilled its contractual obligation under the MOU by recommending the twelve (12) years for each count. A hearing was held before sentencing was imposed wherein Presley was given the opportunity to cross-examine an FBI agent as to the reasons why the District Attorney did not think that Presley had fully cooperated with law enforcement officers. Finally, throughout the entry of the plea and the sentencing hearing, Judge O'Barr repeatedly stated that he would not be bound by the MOU and that he would impose any sentence he deemed to be appropriate. Judge O'Barr was not a party to the MOU and could, under law, impose any sentence which was contemplated under the appropriate statute. ¶25. We finally find that Judge Coleman's finding of cooperation is error based on the plain terms of the agreement giving the State "sole discretion" to determine cooperation and further, on Judge O'Barr specifically stating he was not bound by the plea agreement. Also, Judge O'Barr was in a better position to judge the credibility of the State's witness on Presley's purported cooperation. Judge O'Barr presided over the hearing when the State's witness testified, and Judge Coleman merely had the record of the hearing to consider. CONCLUSION ¶26. For these reasons, William Lynn Presley's sentence and fines imposed by Judge O'Barr are affirmed. In addition, the order denying Presley's motion to enforce plea agreement is affirmed, albeit for different reasons than those given by Judge Coleman. ¶27. CONVICTION OF EIGHT COUNTS OF EMBEZZLEMENT AND SENTENCE OF TWENTY YEARS, WITH TEN YEARS SUSPENDED, ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAYMENT OF INTEREST OF $56,277.34, INVESTIGATION EXPENSES OF $38,165.16, AND OTHER COSTS, AFFIRMED. SENTENCES ARE TO RUN CONCURRENTLY WITH EACH OTHER. PITTMAN, C.J., BANKS, P.J., MILLS, COBB, DIAZ AND EASLEY, JJ., CONCUR. McRAE, P.J., AND SMITH, J., NOT PARTICIPATING. 1. (d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.	01-03-2023	04-27-2013
https://www.courtlistener.com/api/rest/v3/opinions/863716/	Unable to extract the content from this file. Please try reading the original.	01-03-2023	04-27-2013
https://www.courtlistener.com/api/rest/v3/opinions/3000222/	In the United States Court of Appeals For the Seventh Circuit ____________ Nos. 05-4070, 05-4071 & 05-4072 BRENDA JACKSON, SHERRI LISIECKI, PATRICIA BIRCHELL-SIELAFF, and ESTATE OF LINDA R. SCHULTZ, Plaintiffs-Appellants, v. COUNTY OF RACINE, Defendant-Appellee. ____________ Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 02-C-936, 02-C-1262, 02-C-1263— Aaron E. Goodstein, Magistrate Judge. ____________ ARGUED FEBRUARY 23, 2006—DECIDED JANUARY 25, 2007 ____________ Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD, Circuit Judges. WOOD, Circuit Judge. Brenda Jackson, Sherri Lisiecki, Patricia Birchell-Sielaff, and Linda Schultz worked at the Child Support Division (CSD) of Racine County, Wisconsin. While there, they assert, they were subjected to constant sexual harassment from CSD’s Division Manager, Robert Larsen. The first three women filed lawsuits based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Estate of Linda R. Schultz did likewise. The parties agreed to consolidate the cases 2 Nos. 05-4070, 05-4071 & 05-4072 for purposes of discovery and to permit the magistrate judge to handle them, see 28 U.S.C. § 636(c). After evaluat- ing the parties’ submissions on the County’s motion for summary judgment, the district court concluded that the conduct in question was not serious or pervasive enough to create an actionable hostile work environment; it did not reach the County’s affirmative defense under Burling- ton Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). We conclude that, although genuine issues of fact are pre- sent with respect to the existence of sexual harassment, the County is entitled to prevail on its affirmative defense. We therefore affirm. I We present the facts in the light most favorable to the plaintiffs. Larsen was the Division Manager of CSD from approximately October 1, 2000, to June 26, 2001. Jackson and Birchell-Sielaff were supervisors; Schultz was an assistant supervisor, and Lisiecki worked under Jackson’s supervision. The workforce as a whole at CSD was ap- proximately 85% female. Racine County had in place a policy prohibiting sexual harassment, which read as follows in pertinent part: (1) It is illegal and against the policies of the county for any employee, male or female, to sexually harass another employee by: a. Making unwelcome sexual advances, or b. Making requests for sexual favors or other verbal or physical conduct of a sexual nature, a condition of employment, or c. Making submission to or rejection of such conduct the basis for employment decisions affecting the employee, or Nos. 05-4070, 05-4071 & 05-4072 3 d. Creating an intimidating, hostile or offensive working environment by such conduct. Examples of prohibited conduct include, but are not limited to, loud or sexually suggestive comments; sexual flirtations, touching, advances, or propositions; off-color language or jokes of a sexual nature; slurs and other verbal, graphic or physical conduct relat- ing to an individual’s gender; or any display of sex- ually explicit pictures, greeting cards, articles, books, magazines, photos or cartoons. The policy also established an anti-harassment com- mittee and set up procedures that any employee who felt harassed could use. It concluded by providing that it was to be communicated to employees annually and that it was to be posted on appropriate bulletin boards throughout the county. Within weeks of Larsen’s appointment to the position of Director, he began to engage in inappropriate conduct toward the female employees in the CSD; he did not engage in similar behavior toward the male employees. Some of this behavior was rude or intimidating. For example, Larsen would slam a door in a threatening way to demonstrate his anger with Birchell-Sielaff, Schultz, or Jackson. He also interrupted meetings that they were holding with their subordinates, publicly chastising them and yelling at them. He forced supervisors to work long hours and to maintain heavy work loads, leaving them exhausted. Some of his behavior was more overtly sexual. We begin with Jackson. Once, when she asked for Larsen’s help in unjamming a stapler, he commented that she had “a great set of boobs.” Indeed, Larsen not only made re- marks like this on a daily basis; he also constantly sent sexual jokes to Jackson as well as others in the office. On one occasion, Jackson told Larsen that she could not 4 Nos. 05-4070, 05-4071 & 05-4072 paint because she had carpal tunnel syndrome. Larsen responded, “Can you do this?” and proceeded to simulate masturbation, stating, “Because that’s the only im- portant one.” In addition, Larsen frequently made com- ments to Jackson about his sex life with his wife. In a more juvenile vein, he often sidled up to women and asked “Can I give you a kiss,” while offering a chocolate Her- shey’s kiss to them. Nor did he stop with that. On two occasions he wet his finger and stuck it in Jackson’s ear while blowing in her ear. On one occasion, when Jackson was trying to apologize to Larsen for returning late from lunch, he placed his arm around her and kissed her on the lips. Lisiecki was subjected to similarly offensive behavior. Larsen touched her constantly, on her neck, shoulders, hair, and arms. As with Jackson, on several occasions Larsen stuck a wet finger in her ear and blew on it. He also made inappropriate comments about each woman’s clothing, suggesting on a hot day to Lisiecki that she could come to work in her bikini. He told her once that he would love to be under her desk. Finally, Lisiecki claims that Larsen told her that she might be promoted, implying that the promotion would occur if he could “take liberties with her.” When she refused his crude invitation, he no longer discussed her promotion. In fact, Larsen had no authority to create a management position for Lisiecki. To Birchell-Sielaff, Larsen made constant remarks about the way various women looked in their clothing, including remarks about their breasts. He also gave out the Hershey’s kisses during meetings that she con- ducted. He repeatedly told her about his sexual interest in various female employees, as well as his exploits with his wife. Schultz, who passed away before this suit was filed, was also the target of Larsen’s unwanted attentions, includ- Nos. 05-4070, 05-4071 & 05-4072 5 ing the unwanted Hershey’s kisses, jokes, emails, com- ments about her appearance in certain clothing, and leering. If Larsen saw her eating her morning breakfast of a banana, he commented that he liked watching her eat. Within a month of Larsen’s assumption of his job, Birchell-Sielaff complained to Marta Kultgen, Racine County’s Human Resource Manager since 2000, about Larsen’s “kiss” routine and how unpleasant it was to work with Larsen. Kultgen took no action in response to this complaint other than to maintain contact with Birchell-Sielaff. Between October 2000 and February 2001, Birchell-Sielaff complained frequently about Larsen, but she did not indicate that she was concerned about sexual harassment. The first time that Kultgen was alerted to a problem with sexual harassment came in a February 14, 2001, telephone call from Birchell-Sielaff, in which Birchell- Sielaff reported that “some” CSD employees had com- plained about Larsen’s inappropriate sexual comments. Kultgen replied that she would need to look into this, as it might involve a violation of the County’s anti-harass- ment policy. Although Birchell-Sielaff was initially reluc- tant to provide the name of the person who had com- plained, she eventually gave Kultgen one name and claimed that she did not know if anyone else was experi- encing similar problems. Kultgen followed up with the employee Birchell-Sielaff had identified, who confirmed that Larsen had made an unwelcome sexual remark to the effect that “now you can go home and tell your husband you went up and down with Bob in the office.” The employee told Kultgen that she did not want to file an internal complaint of sexual harassment. On February 15, Birchell-Sielaff contacted Kultgen again and gave her Lisiecki and Jackson’s names as 6 Nos. 05-4070, 05-4071 & 05-4072 additional possible victims of Larsen’s sexual harassment. Again, Kultgen acted promptly. She contacted Jackson, who confirmed that Larsen had indeed been engaging in the behaviors detailed above. Kultgen emphasized to Jackson how important it was to report this kind of behavior and asked whether Jackson wanted to file a formal complaint. Jackson declined, saying that Larsen’s behavior had improved since she told him that his con- duct was unwelcome. Kultgen also contacted Lisiecki, but the latter declined to provide any details about Larsen’s behavior toward her. She did admit that there had been an unwelcome touching at one point and that Larsen had promised her a promotion that had not materialized after she refused his advances. Kultgen explained that, regardless of Larsen’s statements or behavior, there was no vacant management position for which Lisiecki was qualified and that Larsen lacked the authority to make a promotion on his own. Like the others, Lisiecki did not want to file a formal complaint. Kultgen also contacted several other people. On February 23, 2001, the Anti-Harassment Committee met. The members included Kultgen, Matthew McVey (an assistant corporation counsel), and Connie Mallwitz (a lieutenant with the Sheriff ’s Department). In light of the lack of any formal complaints before it, the com- mittee concluded that there was nothing at that point for it to do, apart from counseling Larsen about sexually inappropriate behavior. The committee also sent letters to the women Kultgen had met, in order to confirm the fact that they did not wish to complain. Those letters spelled out the procedures that should be followed if they wished to report any further allegations of sexual harassment. A few months later, on April 27, 2001, the County held a training session about the sexual harassment policy. At the end of the session, Jackson and Birchell-Sielaff spoke Nos. 05-4070, 05-4071 & 05-4072 7 with the session coordinator, Alice Oliver, and told Oliver that they believed that Larsen had engaged in prohibited behavior. Oliver passed this word along to Kultgen, who followed up with emails to the same women she had contacted earlier, asking whether anything fur- ther had happened. Two did not respond; Lisiecki an- swered “everything is fine, thanks for checking!”, and the fourth woman also responded “all is well.” Two weeks later, Corporation Counsel Mark Janiuk met with Jackson, Schultz, and Birchell-Sielaff to discuss management issues about Larsen. What he heard prompted him to contact Kultgen with the details; the two of them decided that the Anti-Harassment Com- mittee had to convene to conduct a full investigation of Larsen’s management of the CSD. Within days, it had done so, and the County placed Larsen on administrative leave. The Committee took statements from 21 employees in the course of its investigation. It concluded that Larsen’s employment should be terminated based on his inappropriate conduct as manager of the CSD. Upon review of that report, County Executive Jean Jacobsen decided that demotion, rather than termination, was an adequate punishment. With the demotion came a reduc- tion in pay, a lesser title with fewer responsibilities, and banishment from the CSD. As far as the record shows, no further allegations of sexual misconduct were lodged against him. II As we noted earlier, based on all of this the district court concluded that the acts to which the plaintiffs were subjected were not severe or pervasive enough to amount to sexual harassment, and it thus granted the County’s motion for summary judgment. We review that decision de novo, Koszola v. Bd. of Educ. of City of Chicago, 8 Nos. 05-4070, 05-4071 & 05-4072 385 F.3d 1104, 1107 (7th Cir. 2004); summary judgment is proper only if there is no disputed issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000). A We consider first whether the ground on which the district court relied—the absence of disputed facts on the question whether sexual harassment existed with respect to any of the plaintiffs—is sustainable. One of the ways in which Title VII’s prohibition against sex discrimina- tion in the terms and conditions of employment may be violated is through sexual harassment that is either severe or pervasive enough to create an abusive working environ- ment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Indeed, more than 20 years ago, the Su- preme Court recognized that “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environ- ment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). In order to establish a prima facie case under this theory, a plaintiff must show, among other things, that she has been subjected to “behavior so objectively offensive as to alter the conditions of [her] employment.” Oncale, 523 U.S. at 81 (internal quotations omitted). In addition, she must show the link between this treatment and her sex: as the Court stressed in Oncale, “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion] . . . because of . . . sex.’ ” Id. at 80 (emphasis in original). In order to decide whether a plaintiff ’s showing at the summary judgment stage meets this standard, the court must examine all the circumstances, including the “fre- Nos. 05-4070, 05-4071 & 05-4072 9 quency of the discriminatory conduct; its severity; wheth- er it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably inter- feres with an employee’s work performance.” Moser v. Indiana Dept. of Corr., 406 F.3d 895, 902 (7th Cir. 2005) (quoting Harris, 510 U.S. at 23). There is both an objective and a subjective dimension to these inquiries. Harris, 510 U.S. at 21-22. It is important to recall that harassing conduct does not need to be both severe and pervasive. Cerros v. Steel Tech., Inc. (Cerros II), 398 F.3d 944, 950 (7th Cir. 2005). One instance of conduct that is sufficiently severe may be enough. See Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999). Conversely, conduct that is not particularly severe but that is an incessant part of the workplace environment may, in the end, be pervasive enough and corrosive enough that it meets the standard for liability. Ultimately, as we noted in Smith, “The conduct must . . . be so severe or pervasive as to alter the terms or condi- tions of the employment relationship.” Id. at 533 (citing Ellerth, 524 U.S. at 752; Harris, 510 U.S. at 21; and Meritor, 477 U.S. at 64). What concerns us about the district court’s disposition of all four cases is its characterization of Larsen’s inap- propriate touching and sexual comments as “isolated incidents,” when the plaintiffs’ deposition testimony asserts that he engaged in this type of behavior on a daily basis. The County supports the district court’s decision with a reference to Lucas v. Chicago Transit Auth., 367 F.3d 714 (7th Cir. 2004), but Lucas is not as helpful as it thinks. In that case, the plaintiff, who al- leged a racially hostile environment, generally com- plained that African-Americans were treated more harshly and were written up for reasons that whites were not, without providing any specific examples. Not surpris- 10 Nos. 05-4070, 05-4071 & 05-4072 ingly, this court held that the plaintiff needed something more concrete before his case could go forward. Id. at 726. But Jackson and Lisiecki, at least, provided the necessary specifics to support their charges against Larsen. They testified that he regularly touched them on the hair and the back of the neck whenever he had the occasion to interact with them. Jackson’s testimony about a number of Larsen’s offensive actions (simulating masturbation, sticking his finger in her ear, kissing her on the lips), coupled with her testimony about his day-to-day behavior, could, if believed by a trier of fact, show pervasive harass- ing conduct. Lisiecki too complained of constant unwel- come touching, offensive sexually-based remarks about her appearance and that of other women at the work- place, and a clumsy effort to induce her to succumb to sexual relations in exchange for a promotion that, in reality, he could not deliver. If believed, this too could support a finding of the kind of abusive behavior directed against her because of her sex that alters the terms and conditions of her employment. The testimony supporting Birchell-Sielaff and especially Schultz (now deceased) is not as strong, but taken as a whole it might also suffice to show that they suffered from discrimination in the form of sexual harassment in the workplace. Rather than rule definitively on that point, however, we prefer to leave this question unre- solved. Even if their evidence supported a finding that they experienced harassment at the CSD, it would still be necessary to consider the County’s Ellerth/Faragher defense, to which we turn in a moment. Before concluding, however, we note that all parties in this case seem to think that a working environment must be “hellish” before a Title VII suit can succeed. The Supreme Court’s decision in Harris establishes that something short of the Ninth Ring may violate the statute: Nos. 05-4070, 05-4071 & 05-4072 11 Title VII comes into play before the harassing con- duct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job perfor- mance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “so heavily polluted with discrim- ination as to destroy completely the emotional and psychological stability of minority group workers,” id. at 66, merely present some especially egregious examples of harassment. They do not mark the bound- ary of what is actionable. 510 U.S. at 22 (internal citations omitted). We trust that in the future counsel will avoid the use of a single, over- wrought word like “hellish” to describe the workplace and focus on the question whether a protected group is experiencing abuse in the workplace, on account of their protected characteristic, to the detriment of their job performance or advancement. B Even if each of the four plaintiffs here experienced unlawful sexual harassment at the workplace, there still must be a basis for employer liability. In Ellerth and Faragher, the Supreme Court established the rules for employer liability when the harassing individual is a supervisor, as Larsen was. It distinguished between two 12 Nos. 05-4070, 05-4071 & 05-4072 situations: those in which the supervisor’s harassment resulted in “a tangible employment action, such as dis- charge, demotion, or undesirable reassignment,” see Hill v. American General Finance, Inc., 218 F.3d 639, 643 (7th Cir. 2000), and those in which it did not. In the former situation, the employer’s vicarious liability is strict, in the sense that no defense is available once the other elements of the case have been proven. If, however, the harassment is not accompanied by, or does not result in, any tangible employment action, then the employer is entitled to defeat the plaintiff ’s case by showing “a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and b) that the plaintiff employee unreasonably failed to take advan- tage of any preventive or corrective opportunities pro- vided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765. Before this court, the parties dispute whether Larsen took any tangible employment action such that the County may not invoke the affirmative defense. The only one of the four plaintiffs who seriously asserts that such an action was taken is Lisiecki; we see nothing that would deprive the County of the defense in the cases brought by Jackson, Birchell-Sielaff, and Schultz. Even in Lisiecki’s case, we conclude that the record does not create a gen- uine issue of fact about the alleged lost promotion. Of course, a failure to promote would qualify as an adverse employment action, if that is what we had. See Volovsek v. Wisconsin Dept. of Agr., Trade and Consumer Protection, 344 F.3d 680, 688 (7th Cir. 2003). But there is no evidence that Lisiecki was denied a promotion for a job that was actually available and for which she was qualified. See Jordan v. City of Gary, 396 F.3d 825, 833 (7th Cir. 2005). To the contrary, the only evidence of availability comes from Kultgen, and she testified that there was no such job opening. Larsen was vague about the position he was Nos. 05-4070, 05-4071 & 05-4072 13 promising to Lisiecki, and so it is impossible to know whether she would have qualified for it. Moreover, Lisiecki has no response to the County’s evidence that Larsen had no authority to create the position. It is important to distinguish between the real loss of a promotion (a tangible action) and the disappointment that follows when it turns out that there is no tangible benefit available at all and that the supervisor has been lying in order to win sexual favors. Lisiecki’s testimony could establish the latter fact, but that is not what Ellerth requires for strict liability. We turn, therefore, to the affirmative defense. The County’s first task is to show that it took reasonable care to prevent or correct any harassing behavior. Although the plaintiffs argue that it failed to take steps to prevent harassment and that it had no sexual harassment policy, the record shows that the contrary is true. At the time these incidents took place, the County had a compre- hensive anti-harassment policy in effect that plainly covered sexual harassment. The policy was posted in every department, including CSD. Marta Kultgen, the man- ager of the Human Resources Department, responded promptly to every complaint that reached her. Nor could any trier of fact find that the County did not act reasonably to correct harassing behavior that was brought to its attention. Neither the County, nor the Anti- Harassment Committee, nor Kultgen can be criticized for attempting to work with complainants who did not wish to lodge formal complaints, at least over the short time between mid-February 2001 and early May 2001, when the Committee launched its comprehensive investigation. After all, when Kultgen followed up at the end of April with the four original complainants (including Jackson and Lisiecki), she received either no response or an assurance that all was well. The investigation was thorough and resulted in a significant disciplinary measure for Larsen: 14 Nos. 05-4070, 05-4071 & 05-4072 demotion and all of its attendant disadvantages. Although the plaintiffs argue in their reply brief that any action short of firing Larsen was insufficient, that position misses the goal of anti-harassment law. We have said that “[a]n employer’s response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made.” McKenzie v. Ill. Dept. of Transp., 92 F.3d 473, 480 (7th Cir. 1996) (emphasis added). The steps that the County took against Larsen achieved this goal. The County also has the burden of showing that the plaintiffs unreasonably failed to take advantage of any preventive or corrective opportunities that it provided. One sign of unreasonable behavior on the plaintiffs’ part is undue delay in calling the problem to the employer’s attention. See, e.g., Gawley v. Indiana Univ., 276 F.3d 301 (7th Cir. 2001) (holding that defendant was entitled to summary judgment with respect to the affirmative de- fense where plaintiff waited seven months before report- ing sexual harassment). In Ellerth, the Court wrote: [W]hile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. 524 U.S. at 765. It was not until four months after Larsen became manager that any of the plaintiffs first complained to Kultgen about his behavior. Birchell-Sielaff admitted in her deposition that although she talked to Kultgen often and generally complained about Larsen’s job performance and lack of attention to his duties, it was not until later Nos. 05-4070, 05-4071 & 05-4072 15 that she revealed the inappropriate exchanges between Larsen and another co-worker (not a plaintiff here). Birchell-Sielaff also admitted that as soon as she told Kultgen about those comments, Kultgen informed her that this was sexual harassment, that she was going to have to report it and talk to the co-worker, and that she wanted to know about any other such instances. In response to the last inquiry, Birchell-Sielaff said, “I would- n’t know.” Jackson conceded in her deposition that she was aware that there was a sexual harassment policy in place during the time she worked in the CSD, but she waited for a long time before invoking it. It was not until May 2001 that three of the plaintiffs indicated that they wanted a full investigation, and the record shows that the Anti-Harassment Committee immediately com- plied. We conclude that this is enough to require summary judgment in the County’s favor based on the Ellerth/ Faragher affirmative defense, both for the plaintiffs who unequivocally succeeded in raising material issues of fact on the question of harassment and for those whose initial showing we have granted for the sake of argument. We therefore AFFIRM the judgment of the district court. A true Copy: Teste: ________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—1-25-07	01-03-2023	09-24-2015
https://www.courtlistener.com/api/rest/v3/opinions/1232324/	484 S.E.2d 306 (1997) 225 Ga. App. 509 The STATE v. ALLMOND. No. A97A0186. Court of Appeals of Georgia. March 17, 1997. Certiorari Denied June 27, 1997. J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellant. Joseph Wiley, Jr., Columbus, for appellee. McMURRAY, Presiding Judge. Defendant Allmond entered his plea of guilty to six counts of armed robbery and two counts of possession of a firearm during a felony, and was sentenced ostensibly pursuant to the provisions of the First Offender Act to a period of ten years with the proviso that eight years be served in confinement and the remainder on probation. The State appeals under the authority of this Court's decision in State v. Johnson, 183 Ga.App. 236, 358 S.E.2d 840, maintaining that the sentence imposed by probating a portion of defendant's sentence in confinement is illegal and void since this is in conflict with the mandatory minimum sentence provided by OCGA § 17-10-6.1. Held: OCGA § 17-10-6.1(b) provides that: "Notwithstanding any other provision of law to the contrary, any person convicted of a serious violent felony ... [which includes *307 armed robbery and additional specified crimes] shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles." But by its terms OCGA § 17-10-6.1(b) does not become applicable until a person has been convicted of one of the specified crimes while in the case sub judice the trial court recognized that the entry of the plea and selection for first offender treatment does not result in an adjudication of guilt or conviction. OCGA § 42-8-60. Upon fulfillment of the terms of probation or release from confinement, a first offender is discharged without any adjudication of guilt and is not considered to have a criminal conviction. OCGA § 42-8-62. Under OCGA § 42-8-65(c), a person sentenced to a term of confinement as a first offender is deemed to have been convicted of the offense during the term of the confinement. While the State maintains that this provision makes it clear that a person confined under the first offender provisions has been convicted for purposes of OCGA § 17-10-6.1, we do not agree. The purpose of the provision contained in OCGA § 42-8-65(c) is shown by an uncodified provision of Ga. L.1985, p. 380, which provides for the repeal of this subsection upon the ratification of a constitutional amendment extending the jurisdiction of the State Board of Pardons and Paroles to consider cases covered by OCGA § 42-8-60. Furthermore, attempting to apply OCGA § 42-8-65(c) to determine that a sentence is illegal requires a peculiarly circular logic since the presumption of conviction arises only after the entry of the sentence so that at the time a sentence is entered there is no presumption of conviction which might bar a lesser sentence. The legislature is deemed to have had full knowledge of existing law when enacting OCGA § 17-10-6.1(b). Powell v. VonCanon, 219 Ga.App. 840, 841(2), 842, 467 S.E.2d 193. Thus, if the legislative intent had been to deny some aspects of first offender treatment to perpetrators of certain crimes, this could have easily been stated. In summary, it does not appear that OCGA § 17-10-6.1(b) is intended to curtail the provisions of the First Offender Act, and the sentence imposed is legal. Judgment affirmed. BEASLEY and SMITH, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3036303/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-1697 ___________ Loretta J. Roland, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Jo Anne B. Barnhart, Commissioner, * Social Security Administration, * [UNPUBLISHED] * Appellee. * ___________ Submitted: November 5, 2004 Filed: November 10, 2004 ___________ Before MURPHY, FAGG, and SMITH, Circuit Judges. ___________ PER CURIAM. Loretta Roland appeals from the district court’s1 order affirming the Social Security Commissioner’s denial of her applications for benefits. For the reasons that follow, we affirm. 1 The Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). Roland underwent surgery for a herniated disk in April 2000. She later sought disability insurance benefits and supplemental security income, claiming she could no longer work, primarily because of residual back and left-leg pain. Following a hearing, an administrative law judge (ALJ) found that Roland--who was 45 years old on her alleged onset date, and had a high school education--was able to perform light work and thus was not disabled. The ALJ relied on the Medical-Vocational Guidelines (Grids). See 20 C.F.R. §§ 404.1569, 416.969, and Subpt. P, App. 2, Rule 202.14 (2004). After the Appeals Council denied Roland’s request for review, she sought review in federal court, and the district court entered judgment in favor of the Commissioner. Following careful review, we conclude that the ALJ’s decision is supported by substantial evidence on the record as a whole. See Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004) (standard of review). Specifically, the ALJ was entitled to rely on the Grids, because the record supports the ALJ’s finding that Roland’s nonexertional impairments do not significantly diminish her residual functional capacity (RFC) to perform light work. See Thompson v. Bowen, 850 F.2d 346, 349- 50 (8th Cir. 1988) (if ALJ determines that claimant’s nonexertional limitations do not affect her RFC, then ALJ may rely on Grids to direct conclusion of disabled or not disabled without resorting to vocational expert’s testimony). In addition, the ALJ partially discounted for legally sufficient reasons Roland’s complaints of pain. See Reynolds v. Chater, 82 F.3d 254, 258-59 (8th Cir. 1996) (when complaints of pain are explicitly discredited for legally sufficient reasons, Grids may be used); Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (if adequately explained and supported, credibility findings are for ALJ to make). Further, the award of disability benefits by the insurer of Roland’s former employer, while relevant, was nonbinding on the ALJ, and the ALJ’s failure to discuss the award is not a basis for reversal. See Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995). Accordingly, we affirm the judgment of the district court. _____________________________ -2-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/2042326/	890 N.E.2d 803 (2008) GUPTA v. HUBBUCH. No. 31A01-0711-CV-532. Court of Appeals of Indiana. July 16, 2008. BRADFORD, J. Disposition of case by unpublished memorandum decision. Affirmed, Reversed and Remanded. BARNES, J. Concurs. CRONE, J. Concurs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/407784/	686 F.2d 261 UNITED STATES of America, Plaintiff-Appellee,v.William Archie WILLIAMS, Defendant-Appellant. No. 80-3064. United States Court of Appeals,Fifth Circuit. Unit ASept. 10, 1982. Tom N. Thompson, Shreveport, La., Gary G. Grindler, Nickolas P. Chilivis, Randy Rogers, Kenneth G. Menendez, Atlanta, Ga., for defendant-appellant. D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Louisiana. ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before GEE, RANDALL and TATE, Circuit Judges. PER CURIAM: 1 This court affirmed the conviction of appellant, William Archie Williams, on Count I (charging a violation of 18 U.S.C. § 656) and Counts II and III (charging violations of 18 U.S.C. § 1014) of the indictment obtained on October 19, 1979. 639 F.2d 1311 (5th Cir. 1981). Appellant received a prison sentence of six months as to Count III and five years probation as to Counts I and II together. The Supreme Court reversed the judgment of this court affirming appellant's convictions under 18 U.S.C. § 1014 and remanded the case to us "for further proceedings consistent with this opinion." --- U.S. ----, 102 S.Ct. 3088, 3095, 73 L.Ed.2d 767 (1982). The validity of appellant's conviction under 18 U.S.C. § 656 was not submitted to the Supreme Court and is not affected by its decision. We hereby remand this case to the district court for further proceedings consistent with the opinion of the Supreme Court. 2 AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3036279/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-1626 ___________ Vicky M. Wright, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. Nonpareil, an Iowa Corporation, * * [UNPUBLISHED] Appellee. * ___________ Submitted: November 4, 2004 Filed: November 12, 2004 ___________ Before MURPHY, FAGG, and SMITH, Circuit Judges. ___________ PER CURIAM. Vicky Wright applied for an editor position with a newspaper owned by Nonpareil. The managing editor interviewed Wright, but hired a candidate who, unlike Wright, had newspaper editing experience and was familiar with the software used by the paper. Wright brought this 42 U.S.C. § 1981 action, claiming Nonpareil refused to hire her because of her race. The district court1 granted Nonpareil’s motion for summary judgment, and Wright appeals. 1 The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska. Assuming without deciding that Wright established a prima facie case of discrimination, we agree with the district court that she failed to show Nonpareil’s articulated nondiscriminatory reason for not hiring her was a pretext for race discrimination. See Kincaid v. City of Omaha, 378 F.3d 799, 803-06 (8th Cir. 2004). Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B. ______________________________ -2-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/4038967/	8 3 ^ ro ~* s crs uj LJJ O ru a a □ 1=1 ru rr	01-03-2023	09-28-2016
https://www.courtlistener.com/api/rest/v3/opinions/1008391/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-6747 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ALICEDES MOREJON CORCHO, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden II, Chief District Judge. (CR-96-199, CA-01-339-2-CV) Submitted: August 15, 2002 Decided: August 20, 2002 Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. Alicedes Morejon Corcho, Appellant Pro Se. Michael Lee Keller, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Alicedes Morejon Corcho seeks to appeal the district court’s order denying his motion filed under 28 U.S.C. § 2255 (2000). We have reviewed the record and the district court’s opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. See United States v. Corcho, Nos. CR-96-199; CA-01-339-2-CV (S.D.W. Va. Mar. 22, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/245270/	255 F.2d 876 58-2 USTC P 9544 UNITED STATES of America, Appellee,v.Frank COSTELLO, Appellant. No. 281, Docket 24997. United States Court of Appeals Second Circuit. Argued March 14, 1958.Decided May 20, 1958. Edward Bennett Williams, Washington, D.C. (Morris Shilensky, of Hays, St. John, Abramson & Heilbron, New York City, and Agnes A. Neill, Washington, D.C., on the brief), for appellant. Arthur H. Christy, Chief Asst. U.S. Atty. for the Southern District of New York, New York City (Paul W. Williams, U.S. Atty., George I. Gorden and Jerome J. Londin, Asst. U.S. Attys., S.D.N.Y., New York City, on the brief), for appellee. Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, district judge. HINCKS, Circuit Judge. 1 This is an appeal from an order of the District Court which denied appellant's motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.1 The motion initially was based only upon a claim of newly discovered fruits of illegal wire tapping had been fruits of illegal wire tapping has been used at the trial. In the course of hearings on the motion, the appellant was permitted by amendment to enlarge his motion to include two further grounds, viz., an allegedly illegal mail watch and an allegedly improper inspection of the tax returns of veniremen on the trial panel on the orders of the United States Attorney prior to the trial. 2 Appellant was indicted in 1953 for income tax evasion, in violation of Section 145(b) of the 1939 Internal Revenue Code, 26 U.S.C.A. 145(b), covering the years 1946 through 1949. After trial upon a prosecution based on the net worth theory he was acquitted on the 1946 count but was convicted on the other three counts. He was sentenced to concurrent five year sentences and was fined $10,000 on each of these three counts.2 On appeal, this court affirmed the convictions for 1948 and 1949 but reversed as to 1947. 2 Cir., 221 F.2d 668. The Supreme Court, having granted certiorari limited to the question of the sufficiency of the evidence presented to the grand jury, affirmed. 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397. 3 In May, 1956, pursuant to 28 U.S.C.A. 2255, the appellant filed a motion for correction of sentence, and the District Court denied the motion. We affirmed. 2 Cir., 239 F.2d 177. The Supreme Court granted certiorari and affirmed. 353 U.S. 978, 77 S. Ct. 1281, 1 L. Ed. 2d 1140. 4 In November, 1956, the motion now before us on appeal was filed below. The District Court, after allowing the amendments referred to above and after an extended hearing of appellant's case, upon opinion denied the motion. 157 F.Supp. opinion denied the motion. 157 F. Supp. 461. Wiretap Evidence 5 The district judge concluded that there was no proof that evidence which the Government had introduced at the trial was the fruit of wiretaps and that at any rate there was enough untainted evidence to support the convictions on the counts for 1948 and 1949. We need consider only his further holding that the appellant has not shown that the use of wiretap evidence was not known or could not, with due diligence, have been discovered prior to the trial. 6 The federal courts in varying circumstances have used either of two recognized tests or standards to determine when new trials should be permitted. One of these tests was originally laid down in the case of Berry v. State, 10 Ga. 511, 527, where the court listed the following six requirements: 7 '1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would probably produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only-- viz.: speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness.' 8 The other test was developed in the case of Larrison v. United States, 7 Cir., 24 F.2d 82, wherein the following three requirements were specified: 9 '(a) The court is reasonably well satisfied that the testimony given by a material witness is false. 10 '(b) That without it is jury might have reached a different conclusion. 11 '(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.' 24 F.2d at pages 87-88. 12 The Government contends that the appellant's motion should be determined by application of the Berry rule, while the appellant urges that the Larrison rule is the appropriate test. 13 It has been stated that the Larrison rule is limited to cases of 'recantation or where it has been proved that false testimony was given at the trial.' United States v. Hiss, D.C.S.D.N.Y., 107 F. Supp. 128, 136, affirmed 2 Cir., 201 F.2d 372, certiorari denied 345 U.S. 942, 73 S. Ct. 830, 97 L. Ed. 1368. But we need not decide whether appellant's claim comes within the Berry rule or the Larrison rule, or perhaps fits into a category of its own, because the same result is reached no matter which rule is applied. It is well settled that motions for new trials are not favored and should be granted only with great caution. United States v. Johnson, 327 U.S. 106, 66 S. Ct. 464, 90 L. Ed. 562; Weiss v. United States, 5 Cir., 122 F.2d 675, certiorari denied 314 U.S. 687, 62 S. Ct. 300, 86 L. Ed. 550. We think it fundamental that a defendant seeking a new trial under any theory must satisfy the district court that the material asserted to be newly discovered is in fact such and could not with due diligence have been discovered before or, at the latest, at the trial. Nardone v. United States, 308 U.S. 338, 342, 60 S. Ct. 266, 84 L. Ed. 307. See also United States v. Flynn, D.C., 131 F. Supp. 742, 743, where Judge Dimock reached the conclusion that the Larrison rule 'like so many of the other rules in our law, requires due diligence of him who invokes it.' 14 Did the appellant or his counsel exercise due diligence at the trial to ascertain and exclude evidence obtained by wiretaps? In this connection the record shows that in 1943 the appellant admittedly had been made aware of the fact that the District Attorney for New York Cunty had placed wiretaps upon his phone. This was again brought to his attention in 1951 in the course of the much-publicized hearings of the Senate's Special Committee to Investigate Organized Crime in Interstate Commerce-- the so-called Kefauver Committee. As a witness in the proceedings below, the appellant testfied that this 1943 use of wiretaps by the state authorities had been known to him, in 1954, at the time of trial. And also in the proceedings below lawyers who had represented the appellant at his trial testified that they too had known of these earlier 1943 taps. They also must have known the rule of the second Nardone case, supra. But the appellant and these lawyers all denied that prior to the trial they had known that federal Internal Revenue agents had access to the wiretap information in the possession of the New York County District Attorney. And these denials seem not to have been expressly contradicted on the record. 15 However, in spite of knowledge of earlier wiretaps there is nothing whatever in the record now before us to show that the appellant or his counsel, in defending against the criminal charge of tax evasion, before or at the trial made any effort to discover whether evidence which the prosecution proposed to offer and did offer at the trial had been obtained through the use of wiretaps or to exclude evidence obtained therefrom. Such inaction, in our opinion, constituted a lack of diligence which warranted denial of the motion in so far as it sought a new trial on the ground that some of the evidence received at the trial had been obtained by wiretaps. Especially is this so since, as Judge McGohey remarked below (151 F. Supp. 467): 'there is no rational basis for believing he (the appellant) is so naive as to have supposed that the practice which then (in 1943) proved so fruitful for the State investigation was discontinued.' In any event, Judge McGohey after painstaking hearing and meticulous consideration of the appellant's motion found a lack of diligence. There was certainly ample evidence to support that finding. And as the Supreme Court said in United States v. Johnson, supra, 327 U.S. at page 111, 66 S.Ct. at page 466, '* * * it is not the province of this Court or the Circuit Court of Appeals to review orders granting or denying motions for a new trial when such review is sought on the alleged ground that the trial court made erroneous findings of fact.' The Court further said that an appellate court should never intervene 'where it does not clearly appear that the findings are not supported by any evidence.' 327 U.S. at page 112, 66 S.Ct. at page 466. 16 The appellant argues that until the recent decision in Benanti v. United States, 355 U.S. 96, 78 S. Ct. 155, 2 L. Ed. 2d 126, the use made by federal agents of the taps by State authorities was generally believed not to be illegal and that consequently his absence of effort to discover and exploit such evidence in advance of trial involved no lack of diligence. Essentially the same argument was made in Sunal v. Large, 332 U.S. 174, 67 S. Ct. 1588, 1590, 91 L. Ed. 1982: there, as here, the argument was 'that since the state of the law made the appeals seem futile, it would be unfair to those registrants (i.e., convicted defendants) to conclude them by their failure to appeal.' In Sunal, the Court answered this argument by pointing out that 'the question of law had not been decided by the Court, * * . The case, therefore, is not one where the law was changed after the time for appeal had expired. * * It is rather a situation where at the time of the convictions the definitive ruling on the question of law had not crystalized. Of course, if (the defendants) had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile.' 17 The answer is equally applicable to the argument now made for Costello. He too, like the defendant Benanti, might have raised the point now pressed, on trial and by appeal. And because he new, belatedly, seeks to press the point by a motion for a new trial, he is entitled to no more favorable treatment than the defendants in Sunal who unsuccessfully sought to raise their claim by habeas corpus. Moreover, before the Supreme Court decision in the Benanti case had been announced appellant's present counsel asserted the very claim now under discussion in the petition below for a new trial. Due diligence required that it be raised seasonably by objection or motion for suppression at or before the trial. 18 Since we conclude that for lack of diligent discovery and seasonable objection the wiretap evidence does not constitute ground for a new trial, it is unnecessary to discuss the vigorously disputed issues as to whether any of the prosecution's evidence was obtained by wiretaps and if so the extent of its impact on the verdict. Mail Watch 19 Appellant by amendment to his motion contends that in violation of 18 U.S.C.A. 1701-1703 the Government had placed a watch upon his mail whereby Post Office employees during specified periods recorded the names and return addresses which appeared on the outside of mail addressed to the appellant and transmitted the information thus obtained to the prosecution for use in tracking down evidence of Costello's expenditures which was material to the presentation of a networth tax evasion case. 20 There was no proof offered of the actual delay of any mail and the appellant admitted that he never complainted to the Post Office about any delays. The District Judge found, however, the practice was such that 'while not inevitable, some delay was probable, but only to a very limited extent, i.e., of such mail as reached the Ansonia Station (New York City) just shortly before the carriers were to start out on their deliveries. Such mail, however, would be ready for the following delivery.' The Judge further found that there was no delay at all in mail sent to Costello's summer residence. Thus, even assuming some delay in city mail, it is apparent that it was never a delay of more than one delivery. We do not think this comes within the proscription of 1701 which declares that anyone who 'knowingly and willfully obstructs or retards the passage of the mail' shall be guilty of a crime. 21 Nor do we think there has been any violation of 1702 which, in pertinent part, declared it to be a crime for anyone to take any letter '* * * out of any post office * * * or which has been in any post office * * * before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another * * .' It is undisputed that the mail here in question was never taken 'out of any post office' prior to delivery, or that it was ever opened as above stated. Nothing more was done than to record the information carried on envelopes addressed to the appellant. We think this does not come within the prohibition against 'taking' a letter or prying into another's secrets or business as used in the statute. In Ex parte Jackson, 96 U.S. 727, 24 L. Ed. 877, the Supreme Court's discussion shows that a distinction is to be drawn between material which is sealed and material which is open for inspection. We think the Jackson case necessarily implies that without offense to Constitution or statute writing appearing on the outside of envelopes may be read and used. There seems to be a similar implication in Oliver v. United States, 8 Cir., 239 F.2d 818, petition for certiorari dismissed 353 U.S. 952, 77 S. Ct. 865, 1 L. Ed. 2d 858: certainly that case does not suggest that the law is otherwise. 22 Section 1703(a) penalizes any 'Postal Service employee' who 'unlawfully detains, delays, or opens any letter * * which shall come into his posession * * .' However, as we have held in interpreting that section, detention alone without proof that it was for an unlawful purpose does not constitute a violation of this section. Fliashnick v. United States, 2 Cir., 223 F. 736. 23 The appellant relies upon a revision of postal regulations made as a result of the report of a Senate Committee which was created to investigate charges that a member of the Senate had been subjected to a mail watch. After holding hearings, the committee reported that although the Chief Inspector of the Post Office Department had testified that the mail must not be delayed or withheld, 'it is obvious to your committee that some delay in the mail is unavoidable if the request for coverage is complied with.' S.Rep. 2510, 83rd Cong., 2nd Sess., printed at 101 Congressional Record 2564. As a result of this report the Postal Laws and Regulations Sec. 41.4 (1948 ed.), which had expressly sanctioned mail watches at the request of 'officers of the law,' was rescinded except in so far as applicable to 'fugitives from justice.' We think, however, that neither the Committee Report nor the revision of the regulations bring a mail watch such as this within the ban of the statutes. 24 At the hearing on the motion below appellant testified on direct examination that during the periods of the mail watch he and his wife together received on an average, 40 letters a week or about seven a day. It seems unlikely that any delay whatever would result because of the time required to record the data which appeared on the covers of so small a volume. And obviously the action of the Postmaster in revising the regulations as a result of the Committee Report does not amount to a congressional determination either that the regulation was invalid or that the statutes involved were violated. 25 We conclude that the mail watch was not illegal. Jurors' Tax Returns 26 Appellant's third point raises a question of first impression. During the course of the hearing below it developed that prior to appellant's trial the chief prosecutor, for his assistance in selecting a jury, requested an Internal Revenue agent to check the income tax returns of veniremen on the jury panel. The panel consisted of 360 names, but the Revenue Agent testified, without contradiction, that he inspected only 150 returns. From these the agent made, and transmitted to the prosecutor, notes of the taxpayer's occupation, amount and source of income, number of dependents, amount of taxes paid or refunds, and any unusual deductions. The prosecutor in charge testified that the inspection was undertaken in an effort to find out whether any of the prospective jurors had income tax troubles of their own or had other reasons to be unfavorably disposed to the Government: with this information the prosecution was in a position more intelligently to exercise its peremptory challenges. 27 On the basis of the notes thus derived, together with other information, the prosecutor adopted a numerical system for classifying the jurors, with Class No. 1 composed of those thought probably to be most favorable to the Government, and No. 3 or 4 least favorable. The jury as ultimately constituted contained eight jurors in Class 1 and two each in Class 2 and Class 3. The Government exercised five of its six peremptory challenges: these were exercised against two Class 2 veniremen and against three in Class 3. 28 The appellant contends that the use by the prosecution of this procedure vitiated his conviction not because it violated any statute or rule of the Supreme Court but because in so doing the prosecution violated the confidential nature of income tax returns and thereby obtained a jury which was 'specially conditioned' to find appellant guilty. He contends further that the practice is such that in future cases jurors will be intimidated. 29 The Government contends that the practice is authorized by Treasury regulations. It relies upon 26 C.F.R. 458.32 (1949), which declares that employees of the Treasury Department 'whose official duties require inspection of returns may inspect any such returns' without making any written application, and also upon 26 C.F.R. 458.204, which declares that copies of returns 'may be furnished to a United States attorney for official use in proceedings before a United States grand jury or in litigation in any court, if the United States is interested in the result, or for the use in preparation for such proceedings or litigation; or to an attorney of the Department of Justice, for like use, upon written request of the Attorney General, the Assistant to the Attorney General, or an Assistant Attorney General * *.' 30 It is undisputed that no written request was made for these returns. However, we agree with the Government that under 458.204 it is only when the returns are sought by 'an attorney of the Department of Justice,' as distinguished from a 'United States attorney,' that a written request is necessary. We also hold that the same regulation which authorizes copies of tax returns to 'be furnished to a United States attorney' is broad enough to sanction the informal arrangement whereby at the United States Attorney's request an Internal Revenue agent abstracted and transmitted the requested data. In any event, we hold, the absence of a written request, if one was required by the regulation, would not of itself warrant a new trial. And the broad language of 458.204 plainly does not limit the inspection to tax litigations or to tax returns of accused or suspected tax evaders. But even if the language should be narrowly construed, we believe appellant may not complain of the inspection of returns of others. See Goldstein v. United States, 316 U.S. 114, 62 S. Ct. 1000, 86 L. Ed. 1312. 31 As to the claim of a 'specially conditioned' jury, appellant does not say that the jury which was impaneled was prejudiced against him. He does not claim that any of the jurors were approached by the Government on the subject of their taxes. Nor is there any claim that any of the jurors, until the publicity attendant on the hearing below, knew that their income tax returns had been inspected.3 The preparatory technique of which the appellant complains did not result in a 'blue ribbon jury' or tend to produce such a jury. For the technique was not applied to the selection of the panel: only after the panel had been convened in accordance with the usual procedure was the technique utilized. 32 The appellant contends that the trial was unfair in that in exercising its challenges the Government had access to information not available to him or to even the wealthiest defendant. But as appellant admits in his brief, not all information properly available to the prosecution is equally available to the accused. In Best v. United States, 1 Cir., 184 F.2d 131, certiorari denied 340 U.S. 939, 71 S. Ct. 480, 95 L. Ed. 677, and in Christoffel v. United States, 84 U.S.App.D.C. 132, 171 F.2d 1004, reversed on other grounds 338 U.S. 84, 69 S. Ct. 1447, 93 L. Ed. 1826, the courts upheld district court action which refused to permit the defense to inspect FBI reports on the prospective jury panel. And in other phases of a criminal trial the Government may properly obtain and use information not available to the defendant. Thus under Rule 6(e), Fed.Rules Crim.Proc., 18 U.S.C.A., the grand jury minutes are available only to the prosecution. 33 Appellant further claims that the practice is against public policy in that, once it becomes generally known, prospective jurors will be intimidated or will attempt to avoid jury duty. These, we incline to believe, are farfetched bogies. Prospective jurors whose returns are vulnerable are the very ones whose elimination is facilitated by the practice: knowledge by the others that they were found acceptable to the Government even after an inspection of their returns would hardly be conducive to their intimidation. And the argument that the practice will tend to discourage cheerful jury service, if of any force at all in view of the mandatory nature of such service, would seem not to apply to those having made honest tax returns. There would seem to be no good reason to believe that knowledge that jury service entails exposure of one's tax return to the scrutiny of a district attorney would deter a good citizen from service in the judicial establishment any more than the fierce publicity which beats upon the private affairs of the citizen appointed to high office in the executive department deters acceptance of such appointment. However that may be, we will not attempt to make a policy-determination as to the propriety of the practice by weighing its aid to law enforcement against its limited curtailment of the privacy of tax returns. For we think this court may not assume to proscribe a practice of the United States attorney's office which violates no statute and no rule which the Supreme Curt has made in the exercise of its supervisory power over administration in the lower federal courts. Cf. McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819. 34 Quite apart from these policy considerations, the crucial question here is whether this appellant was tried by a fair and impartial jury. Since none of the jurors in this case had knowledge of the practice there is utterly no basis for the contention that it resulted in a jury 'specially conditioned' to convict or otherwise biased or prejudiced against the defendant. At most, the practice led to challenges of jurors who might have been unduly biased in favor of the defendant. The The exercise of peremptory challenges is a rejective, rather than a selective, process of which the appellant has no right to complain. United States v. Marchant, 12 Wheat. 480, 25 U.S. 480, 6 L. Ed. 700; Hall v. United States, 83 U.S.App.D.C. 166, 168 F.2d 161, 4 A.L.R. 2d 1193, certiorari denied 334 U.S. 853, 68 S. Ct. 1509, 92 L. Ed. 1775, rehearing denied 335 U.S. 839, 69 S. Ct. 9, 93 L. Ed. 391; United States v. Puff, 2 Cir., 211 F.2d 171, 185, certiorari denied347 U.S. 963, 74 S. Ct. 713, 98 L. Ed. 1106. 35 A motion for a new trial is always addressed to the discretion of the district judge. United States v. Johnson, supra; United States v. On Lee, 2 Cir., 201 F.2d 722, certiorari denied 345 U.S. 936, 73 S. Ct. 798, 97 L. Ed. 1364. We conclude that the district judge below properly exercised his discretion in denying the appellant a new trial. 36 Affirmed. 1 Fed.Rules Cr.Proc. rule 33, Title 18 U.S.C.A 'Rule 33. New Trial 'The court may grant a new trial to a defendant if required in the interest of justice. If trial was by the court without a jury the court may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 5 days after verdict or finding of guilty or within such further time as the court may fix during the 5-day period.' 2 By virtue of several admissions to bail, appellant, though sentenced in May, 1954, has served but 10 months of his sentence to date 3 It was, however, brought out below that the Government has similarly used jurors' tax returns in certain other unspecified cases	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3962018/	Appellant was convicted of an assault with intent to murder without malice, and given a term of two years in the penitentiary. Court convened on the first day of January, 1945, and adjourned on the 10th day of February, 1945, and on the 9th day of February, 1945, motion for new trial was overruled and appellant gave notice of appeal. No date was fixed by order of the court within which appellant should file his bills of exceptions. It appears that said bills were filed on the 24th day of April, 1945, which was long after the thirty days allowed for filing bills of exceptions — Art. 760, C.C.P., Section 5 — unless the time is extended by order of the trial judge. We find no such order appearing in the record, and therefore are not justified in considering such bills of exceptions. A careful reading of the facts proven convinces us that same are sufficient to show appellant's guilt. We notice that the sentence herein provides for appellant's confinement in the penitentiary for a term of two years. He was convicted of an assault to murder without malice, the minimum punishment therefor being one year. The sentence will therefore be reformed to read that appellant shall be confined in the State penitentiary for not less than one year nor more than two years, and as thus reformed the judgment is affirmed.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3977919/	Appellant was charged by indictment with the murder of one Ed Kelly, alleged to have been committed on the 5th day of September, 1906, in Hill County, Texas. He was convicted of manslaughter, and his punishment assessed at four years confinement in the penitentiary. The facts in brief show that appellant, at the time of the homicide, was a young man slightly past 21 years of age, living with his young wife, and baby a few months old, some four miles east of Itasca on a farm. The deceased was a man some 35 years or more, and was practically a stranger in the community. About a week before the homicide he had been hired by appellant along with O. Leggett, who was also a stranger, to pick cotton. On the day before the homicide appellant went to Itasca, a town nearby on business, leaving the deceased and Leggett at his home with his wife and child. Shortly after he had left home Leggett left also, leaving deceased and appellant's wife at the house. It is claimed by the wife of appellant that the deceased was guilty of gross indignities in the absence of her husband, going to the extent of seizing her in his arms and importuning her to have carnal intercourse with him. Defendant's wife made no report to him of the matter that night on his return, but in view of his announcement of his purpose to go to Itasca again the next morning she remonstrated with him and begged him not to go and leave her with that man (meaning deceased), and in reply to his demand to know why she was afraid of deceased, she stated to him a portion of the insulting conversation with the deceased leading up to his seizure of her; but did not make a full disclosure, for the reason, as stated by her, that this would cause great trouble and sorrow through which she was now passing. However, in view of what his wife already told him, appellant at once discharged deceased, and told him that if he would go into town he would get the money he owed him and pay him for his services. This deceased declined to do, and it was stated he would not wait for his money and immediately left appellant's house, going in an easterly direction. Appellant went on to Itasca, which was situated in a westerly direction from where he lived, and while there purchased a double-barrelled shotgun Page 73 and some ammunition. While in Itasca he made some inquiry as to what one should do or ought to do to a man who had insulted his wife. Appellant was accompanied home by Watson, his cousin, and Leggett, his employee. When he reached there, as he states, he went to his wife, and told her that he did not believe she had told him all that had occurred the day before; whereupon she broke down, as he says, and through her tears, made a full disclosure of all that had occurred, involving the most reprehensible conduct on the part of the deceased. On receiving this information, appellant went out of the house, mounted a horse that belonged to his cousin Watson, and galloped off in the direction that deceased had gone some hours before, with the purpose, as he declares, of requiring deceased to explain his conduct. He soon found deceased picking cotton in the field of one Morris, and while the testimony is not wholly in agreement, the substantial facts seem to be that, without parley, and probably without warrant, shot the deceased in the field in the cotton row where he was at work. Appellant, however, it should be stated, claims in his testimony that when he came upon deceased, with a view of making inquiry as to his conduct towards his wife, and demanding an explanation of same, that the deceased was looking straight at him and threw his hand behind him, and appellant thought he was going to draw a pistol. Leggett and Watson, the parties with appellant, were each separately indicted as a principal for the murder of deceased. While not intending to comprehend herein every essential fact of the case, the statement above substantially illustrates the situation far enough to make intelligible the issues discussed. There are three substantial questions raised on the appeal, and which were discussed in oral argument and are clearly presented in the record: 1. It was shown, as stated, that Hence Watson and Oscar Leggett, and the appellant were each separately indicted as principals for the murder of deceased. It was shown that at the January term, 1907, of the District Court of Hill County, and on the thirtieth day of that month appellant filed his motion in writing which was duly sworn to, in which he alleges the pendency of said indictment against Watson and Leggett for the same offense, and that the evidence was insufficient to convict said Watson and Leggett, and that he desired their testimony, and prayed a severance to the end that these defendants be first tried. This motion was granted by the court, and an order entered that Watson be first tried; and that Leggett be next tried, and that both of them should be tried before appellant. It is further shown in the record that on the 8th of April, 1907, when this case was called for trial, that neither Watson nor Leggett had been placed upon trial, nor had their cases been disposed of, but both cases were held pending on the docket. The record further shows that appellant filed an additional motion at that time calling the court's attention to the failure of the State to comply with the order of the court formerly made granting his motion to sever, and in said second motion renewed their former motion for severance, and again prayed the court to have said cases against Watson and Page 74 Leggett first tried, and finally disposed of before he should be placed upon trial. Thereupon, the county attorney prepared a formal motion in the Watson and Leggett cases, asking an order of nolle prosequi on the ground that the evidence was insufficient to sustain a conviction against them, and asking that said cases be dismissed. Whereupon, the court entered upon the docket, opposite each of said cases the following order: "April the 8th, nolle pros. by State for reasons on file." The record further shows that appellant, by his counsel, objected and protested to the proceedings so had in dismissing said Watson and Leggett cases, because such proceeding was not in compliance with the order of the court made, nor in accordance with appellant's motion to sever, and that said dismissal was not a trial or final disposition of the cases, and contended that they should have been tried or dismissed with a guaranty of immunity from further prosecution, so that appellant could avail himself of the said Watson and Leggett as witnesses, and that he might have them free and untrammeled by any fear of a future prosecution. In this state of the record appellant was compelled to make an announcement of ready or not ready for trial. The record further shows that the State rested its case without having placed either Watson or Leggett upon the witness stand, at which stage of the proceedings appellant filed a motion, asking the court to require the State to place Watson and Leggett on the witness stand and prove by them the facts and circumstances immediately attending the homicide in order that appellant might have the privilege of a cross-examination of said witnesses. This motion was overruled by the court, and neither Watson nor Leggett was introduced by either party, nor were they witnesses in the case at any stage of the proceedings. Appellant claims that these proceedings were directly in the face of the holding in the case of Puryear v. State,50 Tex. Crim. 454; 17 Texas Ct. Rep. 721. To this contention we accede, and if the rule adopted in the Puryear case should prevail we would not hesitate to reverse the case for the error here assigned. We do not believe, however, that the Puryear case should be followed. We think the reasoning in that case is fallacious and unsound, the conclusion reached unsafe, and the result wholly mischievous. It is directly in the teeth of the decision of this court in the case of Brown v. State,42 Tex. Crim. 176. It is, as we believe, at variance with the letter and spirit of our Code of Criminal Procedure. Articles 707, 708 and 709 are as follows: "Article 707. When two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit in writing that one or more parties are indicted for an offense growing out of the same transaction for which he is indicted, and that the evidence of such party or parties is material for the defense of the affiant, and that the affiant verily believes that there is not sufficient evidence against the party or parties whose evidence is desired to secure his or their conviction, such party or parties for whose evidence said Page 75 affidavit is made shall first be tried; and in the event that two or more defendants make such affidavit and cannot agree as to their order of trial, then the presiding judge shall direct the order in which the defendants shall be tried; provided, that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party. "Article 708. When a severance is claimed the defendants may agree upon the order in which they are to be tried, but in case of their failure to agree the court shall direct the order of the trial. "Article 709. The attorney representing the State may at any time, under the rules provided in article 37 dismiss a prosecution as to one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party." It will thus be noted that provision is made that where two or more defendants make such affidavit and cannot agree as to the order of trial, then the presiding judge shall direct the order in which the defendants should be tried. It will also be noted that provision is made that the making of such affidavit shall not, without other sufficient cause, operate as a continuance to either party. It is expressly provided (see article 708) that when a severance is claimed the defendants may agree upon the order in which they are to be tried, but in case of their failure to agree, the court shall direct the order of trial. Article 709 provides, that the attorney representing the State may at any time, under the rules provided in article 37, dismiss a prosecution as to one or more defendants jointly indicted with others, and the persons so discharged may be introduced as witnesses by either party. Now, in this case neither of the parties, Watson nor Leggett, were in fact introduced by the appellant. While it might be presumed that they would have testified to facts helpful to him, this is but a presumption. It is possible that if placed upon the witness stand that they might have refused to testify on the ground that their testimony would tend to criminate themselves, but whether they would have done so or not is at most an idle speculation and a chance surmise. To hold that the very fact that a severance was claimed and granted, and that after the prosecution was dismissed against these witnesses, that without offering them, without any effort being made to obtain their testimony by placing them on the witness stand, that appellant is entitled to a reversal for the sole and only reason that the cases had not in fact been tried or immunity granted, is going farther than we are willing to go. If there was any suggestion in the record that the dismissal of the cases was not in good faith, as appears in some of the cases, a different question would be presented, but to uphold in this case appellant's contention on this point is to give him a greater right in respect to the Watson and Leggett cases than either of those defendants themselves had. When their cases were reached, under the law, it lay within the discretion of the county attorney to determine whether he would prosecute the cases or enter a nolle prosequi and such defendant, if he so concluded, would have no just cause for complaint. Shall we give this appellant a greater Page 76 right in respect to Leggett's case than Leggett had? If the case against Watson be, over his protest, dismissed, shall we say what might be lawfully done over Watson's protest, will be unavailing when another party, appellant in this case, objects? Again, such a holding is opposed to and would stand in the way of a due and proper administration of justice. It can well be understood in this case, even if the county attorney had the most convincing evidence of Watson and Leggett's guilt, that at the time when the cases were called, some witness might be missing whose testimony would be indispensable to their conviction and to the due administration of justice. He might decide for some reason at the moment to dismiss the case. Shall it be said that the hand of the law or chief officers of the State shall be rendered powerless because some other litigant may have a remote interest in the proceeding; that such litigant shall have the direct control and be the presiding genius over the fortunes of the State's prosecutions. How would it work in this case? Neither Watson nor Leggett had been offered as witnesses in the case. We might assume that their testimony is important. Upon another trial it may or may not in fact be offered. Suppose we reverse this case. Let us assume the most charitable view that Watson and Leggett are both innocent. It results that we send this case back to the District Court of Hill County with a message to the judge of that court that he is to go bravely through with the reassembling of the grand jury that they may indict innocent men, for the purpose of having a formal order of acquittal entered to the end that appellant may have the option, which so far he has not chosen to exercise, to offer these codefendants as witnesses on the trial of his case. As we say, we think that the Puryear case is not supported by the intent and true meaning of our statutes. It is against the early decisions of the court. It is illogical in its reasoning and it is evil, and only evil in its results. So believing, we overrule the Puryear case, and uphold and commend the action of the trial court in the matter complained of. 2. It is shown by proper bill of exceptions that shortly after the homicide in this case, an inquest proceeding was held before a justice of the peace, and that on this hearing John T. Morris and Wiley Clair testified, and that their testimony was reduced to writing, sworn to and signed by them. At this hearing appellant and his counsel were personally present, and cross-examined these witnesses. Without setting out their testimony, it may suffice to say that it was material and adverse to appellant. On the trial it was shown that Wiley Clair was in the State of Oklahoma. It was also shown that the witness Morris was in the State of Oklahoma. The State introduced in evidence, over appellant's objection, preserved by proper bill, the written testimony of both these witnesses, Clair and Morris, taken at the inquest. The point here made is, that this testimony was not admissible in any event, for the reason, as contended, that under the Constitution appellant had the right to be confronted on this trial by these witnesses, and that under the puculiar facts of this case, the rule maintained in the Porch case, Page 77 51 Tex. Crim. 7; 18 Texas Ct. Rep. 761, and other cases ought not to apply, for the reason that, under the peculiar facts of this case, the ground of necessity upon which this testimony is sometimes admitted, does not apply. We do not feel ourselves required to go into this question at length. It can no longer, we think, in this State be an open question that where the testimony of a witness has been reduced to writing, in a regular proceeding, where opportunity for cross-examination had been afforded defendant, and a witness has died or moved beyond the jurisdiction of the State, that on a final trial of the case, this testimony will be admitted. Such testimony was admitted by our Supreme Court many years before the creation of this tribunal in the case of Greenwood v. State, 35 Tex. 587, in 1871. This position has been maintained and upheld by this court, beginning with the case of Black v. State, 1 Texas Crim. App. 368, in an unbroken line of decisions for more than a quarter of a century, and was never seriously questioned until the rendition of the opinion in the Cline case, 36 Tex.Crim. Rep.. While the majority opinion in that case is a magnificent piece of legal reasoning, and shows great research, it is so opposed, not only to the decisions of this court, but practically every court of last resort on the American continent, that we do not believe the temporary departure thus made from the settled rule of construction everywhere among the English speaking people should be an authority seriously regarded. In passing, it may be stated that the ruling in the Greenwood case, the Black case, and in the Porch case, is in accordance with what has been the rule in England since 1654. This, too, is the rule in the Supreme Court of the United States, where the question has often been considered. See Mattox v. State, 156 U.S. 237, and West v. Louisiana, 194 U.S. 258, and under statutes similar to our own has been uniformly so held without a single dissent so far as an examination of the authorities go in any court of last resort in America. So that, without further discussion, we are constrained by the overwhelming weight of authority to hold this contention adverse to appellant. Nor do we believe that the point made by appellant's counsel and presented with great earnestness and much ingenuity, that a departure from the general rule ought to be made on the ground that, as applied to the facts of this case, the reason for the rule fails. Their contention is, that other witnesses, including P.J. Morris and George Clair were present, and saw, heard and testified to every fact which was testified to and included in the evidence of the absent witnesses, John T. Morris and Wiley Clair, and that, therefore, the testimony could not have been admitted from any supposed reason of necessity as is sometimes said in the decisions. The argument of necessity which is sometimes said to be a basis and ground for the admission of this character of testimony is but another way of saying that such testimony shall be permitted to be introduced on the ground that its exclusion might and would sometimes defeat the ends of justice. We do not feel ourselves at liberty to say just when this reason of necessity ceases. In a controverted case like Page 78 the one at bar, the mere fact that some one or two witnesses testified to the same state of things as is testified to by the absent witnesses, would, we think, make little or no difference. After all, it must be left to the discretion of the prosecuting officer and of the trial court to say whether in a given case it is deemed necessary or important to have before the trial court the testimony of these absent witnesses. Nor do we think it essential to the admissibility of this testimony that it should be put upon the ground of necessity alone. The assignment is overruled, and the action of the court complained of is sustained. 3. Another important question arises upon the examination of Mrs. Lula Hobbs, the wife of appellant. To the end that this may be fairly presented, we adopt, for the purpose of a discussion, the statement of appellant's contention as found in appellant's brief. They say: "Bill of exceptions number 6, recites that the appellant placed his wife, Lula Hobbs, upon the witness stand in his own behalf, for the purpose only of proving that on the day preceding the homicide the deceased used insulting language, and was guilty of improper conduct toward her, and that on the day of the homicide she communicated these facts to the appellant. No other fact or circumstance was elicited or sought to be elicited from said witness by the appellant. The State on cross-examination proved by appellant's wife that a few moments after the occurrence between the deceased and the said Lula Hobbs, Mrs. George Clair came to the house of appellant, and also that the witness Lula Hobbs went to the house of Mrs. George Clair on the day of the homicide, just a short time before the homicide occurred. Counsel for the State also asked appellant's wife if she did not state to Mrs. Clair in a conversation that just before Mrs. Clair came to her house on the day before, that deceased tried to get smart with her and put his hand on the arm of her chair, and she then got up out of the chair and deceased said, `Good lady, I mean no harm,' and the said Lula Hobbs denied making such statement. Counsel for the State also asked the wife of appellant if she did not say to Mrs. Clair at the latter's house, just a few moments before the killing that the deceased had tried to get smart with her on the preceding day and that she had told her husband, and that they had gone to look for Kelly and that she, the said Lula Hobbs, did not know what was going to happen; and said witness denied making that statement. No objection was made by appellant's counsel to any of these inquiries made of his wife, concerning matters that the appellant had not examined her about; and we rely upon the authority of Brock v. State, 44 Tex.Crim. Rep.; 71 S.W. Rep. 20, to sustain the proposition that this examination was improper, and constitutes reversible error without a bill of exceptions having been reserved at the time. The bill of exceptions now under discussion shows that, after the appellant's wife had denied making these several statements, the State placed the witness, Mrs. George Clair, on the witness stand and proved by her that Mrs. Hobbs did make each of the statements inquired about. The appellant objected to said testimony of Mrs. Clair, because, first, it was an Page 79 effort to impeach the wife of appellant upon an issue immaterial; second, because the said Lula Hobbs was the wife of appellant and in her direct examination no inquiry was made concerning any visits or conversations between her and Mrs. Clair, and it was in effect making the wife a witness against her husband; and, third, that any statements made by Lula Hobbs in the absence of the defendant, to the effect that her husband had then gone to look for deceased, and that if he found him she did not know what would happen, was hearsay, inadmissible and highly prejudicial to the defendant. All of these objections were overruled and said testimony permitted to go before the jury. Following the authority of the cases of Brock v. State, supra, and Moore v. State, 44 Tex.Crim. Rep.; 75 S.W. Rep. 497, we believe the testimony was not admissible under the doctrine that the wife will not be permitted to testify against her husband." We do not believe that this contention should be upheld, nor that the authority of the Brock case can be invoked successfully. In the Brock case, the wife of the defendant there being tried, was introduced and used as a witness by the State, and the contention was made that under our statute the wife is not a competent witness against the husband in a criminal proceeding of this character with or without his consent; that neither spouse can consent to the other testifying against him in a criminal case except where it is an offense of one aginst the other. Article 774, of the Code of Criminal Procedure, provides: "Neither husband nor wife shall in any case testify as to communications made by one to the other while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense, and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial." Article 775, Code of Criminal Procedure, provides: "The husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other, except in a criminal prosecution for an offense committed by one against the other." This disqualification of giving adverse testimony against each other rests upon sound grounds and proper policy, and should be upheld with a strong hand, and we can well understand how the court would deprecate and condemn the use of the wife against the husband, or the husband against the wife as was attempted in the Brock case, whether at the time the person being tried objected or did not object, but the case we have here is, as we conceive, very different. Here the wife was offered as a witness in behalf of her husband; her testimony was vital and important, and if true, as the jury seemed from their verdict, to have believed, evidenced such a gross insult and outrage as to reduce to the grade of manslaughter what otherwise might have seemed an unprovoked and cold-blooded murder. She testified in substance and effect that while unprotected in her household, with only the little babe present, the deceased grabbed her, embraced her, and made the direct proposition Page 80 that she submit her person to his lustful embraces. The accuracy of this statement the State sought to challenge, and to disprove by the fact that her conduct and conversation with the witness, Mrs. Clair, was wholly at variance with the serious condition of affairs which she claimed she had told her husband. The State could not, in the first instance, have offered appellant's wife against him. He was free, however, to introduce her as a witness in his own behalf, and to seek to obtain the utmost possible benefit from her testimony. She could not be made to enlist against her husband, but when she entered the field for him, she is subject to such cross-examination as will fairly test the truthfulness of her testimony. She becomes, as any other witness, in respect at least to the examination that fairly and legitimately tends to test the credibility and accuracy of the testimony which she gives, the subject of cross-examination. This was the limit to which the cross-examination went in this case, and it was restricted within these legitimate bounds. Having offered his wife as a witness in his own behalf, he is to be held to have consented that her credibility might be tested by such reasonable cross-examination as would disclose the truthfulness or inaccuracy of any statement which she makes. Messer v. State, 43 Tex.Crim. Rep.. The only matter about which we have any doubt is a feature of her testimony, which is not so much discussed in the brief by counsel for defendant; and in her statement to the witness, Mrs. Clair, in effect said that her husband had gone to look for the deceased, and she did not know what would happen. A somewhat similar question arose in the case of Skaggs v. State, 31 Tex.Crim. Rep.. In that case the wife of the accused stated in her testimony that she knew her husband was going to kill the deceased. This statement was held to be opinion evidence only, and incompetent for any other purpose, but the error having been cured by the court's withdrawal of the statement from the consideration of the jury, no special attention seems to have been paid to it. In this case reference is had to the case of Drake v. State, 29 Texas Crim. App. 265. In that case while the witness Drake, Jr., was on the witness stand, it was sought to impeach him by inquiring, in substance, that if he did not state to persons named that he knew that his father, the defendant, was going to kill Guinn (the deceased), before he (the witness) left home that morning. This was held not to be a fact or knowledge of a fact, or a material fact about which the witness could be impeached, but was a mere opinion and conclusion, and introduction of the evidence as impeaching testimony was held improper. Here, however, the only extent to which the wife's testimony goes, as shown by the bill, which is much stronger than appears in the statement of facts, is that her husband had gone to look for the deceased, and that she did not know what was going to happen. In other words, it is a mere statement to the witness, Mrs. Clair, having in view her disclosure to her husband, that he was then away from home and that she did not know what the result of the conference would be. If, as the defendant himself testified, his mission was to see the deceased to *Page 81 demand an explanation, this testimony might relate to the result of the explanation so given. In any event, as presented in the record, it is not clear that the testimony was not admissible, and if it should be held that it was not admissible as a mere expression of opinion, it does not on its face or by necessary implication disclose the statement of opinion as to what the appellant meant to do, and is therefore, we believe not material or hurtful even if it be conceded that it should not have been admitted. We have carefully gone over the entire record. It bears incontestable evidence on every page that the rights of defendant have been well cared for. Whatever our own views or sympathies may be, it is our belief that the appellant has had a fair and impartial trial. The evidence affirms beyond doubt that he took the life of the deceased, and giving him the benefit of the great provocation testified to by his wife, the jury have imposed the lowest penalty, which, under all the facts, they were reasonably justified in doing. Finding no error in the record, the judgment of the court below is affirmed. Davidson, Presiding Judge dissents, and will file reasons. Affirmed. ON REHEARING. June 6, 1908.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/231841/	204 F.2d 700 Application of LURELLE GUILD. Patent Appeal No. 5967. United States Court of Customs and Patent Appeals. April 15, 1953. Rehearing Denied May 29, 1953. Allen & Allen, Cincinnati, Ohio (Erastus S. Allen, Cincinnati, Ohio, of counsel), for appellant. E. L. Reynolds, Washington. D. C. (H. S. Miller, Washington, D. C., of counsel), for Commissioner of Patents. Before GARRETT, Chief Judge, and O'CONNELL, JOHNSON, WORLEY, and COLE, Judges. COLE, Judge. 1 The subject matter involved in this appeal relates to a design patent application for a building roof. 2 In proceedings before the Primary Examiner of the United States Patent Office, the single claim of the application was rejected, three grounds therefor being assigned. The Board of Appeals affirmed the examiner's decision, reversal of the first ground of rejection, however, specifically being manifested. The claim reads as follows: 3 "The ornamental design for a building roof substantially as shown and described." 4 With the consent of the Patent Office, the application drawing has been supplemented on appeal by more accurate reproductions of the design in question and while technically not a part of the record before us, said reproductions will be considered in arriving at the decision of the court. 5 A clear description of applicant's design is found in the opinion of the Primary Examiner, as follows: 6 "The subject matter of the instant application relates to a building roof made up of shingles of the type having granules on the surfaces thereof. Said granules are arranged in batches which vary in hue, chroma and value embedded in areas on the surface of the shingles with adjacent areas blended together so that when the shingles are laid on the roof an optical effect of deep shadows below the butts of the shingle units is produced simulating shingles of greater than actual thickness, the blending of adjacent areas of the granules of different hue, chroma and value arranged irregularly depthwise of the roof revealing a non-banding visual appearance laterally of the roof of gradually deepening color value throughout the entire exposed area of each shingle unit from butt to overlap and the blending of the granules of different hue and chroma in areas laterally of the roof arranged irregularly widthwise in each shingle unit to reveal a non-banding appearance depthwise of the roof, the pattern of distribution of granules of different hue, chroma and value being different in each shingle unit." 7 It is essential that the terms "hue," "chroma," and "value" (color value), used in the foregoing description, be understood. In this connection, the applicant has stated in his brief that every colored article, exclusive of black and white or intermediates there-between, has three qualities. Hue commonly means color, i. e., red, green, blue, yellow, or intermediates thereof. Chroma has particular reference to whether the hue is intense, weak, faded, etc. Color value is indicative of the degree of luminosity. 8 It appears to us that the applicant, by arranging areas of mineral granules on the shingles which vary in hue and chroma, but which gradually deepen in color value from butt to overlap, achieves the nonbanding shadow blend roof effect which is claimed to be the essence of the invention. More concretely, the overall concept amounts to this: Constantly change the areas of different hue and chroma laterally of the roof and, at the same time, maintain a constantly changing color value vertically of the roof panel. 9 In rejecting the application on appeal, the Board of Appeals placed reliance upon the following references: McKay 1,208,595 December 12, 1916; House and Garden page 50 April, 1950. 10 The McKay reference is a product patent for prepared roofing while the latter publication is pertinent in connection with alleged copyright protection granted the present applicant covering the identical roof design claimed in the instant appeal. 11 Considering now the patent to McKay, the tribunals below predicated their rejection of the appealed claim on the ground that the subject matter thereof was not patentably distinct from that disclosed by the reference. That a product patent, such as the McKay reference, can, if pertinent, be cited as a disclosure to anticipate the design application on appeal is not disputed. 12 McKay's drawing shows a shingle darker at the lap end which gradually becomes lighter at the butt end. The applicant agrees that the following analysis of the McKay specification, as set forth by the board in its opinion, is correct: 13 "McKay states that he attains fictitious or illusory shadow-values by the graduated blending or merging of a lighter-colored color-layer into the darker mass of a plastic main layer and that by the coordination of the resultant illusory `deep-shadow' areas and `shadow-blends' with the physical elevation and depressions of the prepared roofing surface, he attains the optical illusion of depth of relief which greatly exceeds the physical depth of the material. McKay also states that the two layers may be so blended as to graduate the color of the color coating into the dark appearance of the deep-shadow area in the resultant `shadow-blend' areas. * * " 14 Concededly, McKay suggests a shadow blend giving an artificial appearance of thickness to the shingles. Persistently urging, however, that McKay's idea was completely inoperative to produce anything which resembles the appearance of that inventor's drawing, the applicant, to strengthen such a conclusion, has submitted the affidavit of one Howard Callahan, a man considered to be highly skilled in the art in question. The Callahan affidavit is clear to the effect that following diligent efforts to practice McKay's invention, according to the tenor of the patent disclosure, the affiant was wholly unable to produce any likeness to the patentee's drawing. A specimen piece of roofing allegedly made in accordance with the McKay process was placed in evidence. That it differs in appearance from the drawing of Figure 1 of the McKay patent is quite apparent. 15 The sum and substance of applicant's position would thus seem to be based on alleged inoperativeness of the McKay disclosure insofar as producing anything having the appearance of what is shown in the drawing of that patent. The applicant believes that "the draftsman made a mistake as to what McKay's roll roofing would look like" and further that "it is purely a chance showing having no basis in the specification." Applicant submits that justification for its conclusion is readily found in McKay's failure to avoid "banding." The applicant insists that it is only by varying the hue, chroma and color value of the granules that "banding" is avoided, and that McKay allegedly fails to achieve this result is, according to applicant, evidence of inoperativeness, regardless of what the reference drawing discloses. 16 In applying the McKay reference, the Primary Examiner said: 17 " * * the drawing disclosure of McKay clearly illustrates a shingle which is darker at the lap end and gradually becomes lighter at the butt end. It would appear that McKay accomplishes the same result as to appearance when his shingles are laid in a finished roof. Applicant, in support of his traversal of this rejection, has submitted a sample roof section alleged to have been made by the process outlined by McKay. It is admitted that it differs in appearance from the roof section shown in the McKay patent, and applicant states in effect that this is an indication that the McKay patent is inoperative and that the showing thereon is merely the Draftsman's notion of how a roof made in accordance with the McKay patent should look and this is not supported by the facts. As designs are based solely on appearance and the McKay drawing disclosure appears to clearly show the identical appearance as presented by applicant's drawing, it is not seen to be material whether McKay's process would produce the shingles shown thereon or not. The fact remains that the showing of McKay is deemed to substantially duplicate applicant's showing and as McKay is old enough to be a publication reference against the instant case, such showing alone is a valid reference." 18 It is a fundamental principle of patent law that the patentability of a design application is to be tested in the light of its appearance as a whole. Bearing in mind that the law applicable to design patents is not different from that applicable to other patents, the determinative factor relative to the issue of anticipation is founded in identity or substantial similarity of appearances. 19 Should we accept the McKay reference as sufficient to reject the application before us, that would preclude any need for consideration of the other objection. Obviously, if the applicant has but presented a design sufficiently similar to that of McKay, as evidenced by a comparison of the respective drawings, then the applicant must recognize his efforts as being nonpatentable. 20 In approaching what we consider the controlling and decisive issue, it is well to keep in mind that a patent enjoys a presumption of validity and a party attacking its validity on the ground of inoperativeness must establish his case by a preponderance of proof. 21 As previously noted, the applicant, in attempting to satisfactorily meet the aforesaid burden of proof, submitted the affidavit of Callahan attesting to the inoperativeness of the McKay process. For obvious reasons, an ex parte affidavit, while not to be lightly disregarded, is seldom acceptable as being conclusive of the factual matter stated therein, and, in general, such affidavits are accorded the status of an expression of opinion by an expert in the art. The prime importance of the ex parte affidavit to the applicant seeking to avoid an asserted anticipation must, however, be fully recognized as it is one of the few practical mediums through which the applicant can successfully operate in endeavoring to prove his case. Yet, the law demands close scrutiny of such affidavits, particularly in those instances wherein the affiant is not a disinterested party. See In re McKenna, 203 F.2d 717, 40 C. C.P.A., Patents, —, for a more detailed discussion of ex parte affidavits. 22 The tribunals below in discounting the effectiveness of the Callahan affidavit to establish the alleged inoperativeness of the reference patent did so, presumably, only after a sound appraisal of said affidavit. We have carefully reviewed the Callahan affidavit in the course of our study of the case but when viewed in the light of all surrounding circumstances, we must hold that it is not sufficiently convincing. 23 Looking to Figure 1 of the McKay patent, we believe that it adequately expresses the content of that inventor's disclosure. Looking then to the drawing accompanying the application on review, there is practically no difference. Both drawings present shingles which are darker at the lap end and gradually lighten in color at the butt end. This cannot be disputed by anyone looking at the two side by side. Design patents are presumably based on what the application therefor discloses its appearance to be. While, as indicated, the applicant asks that this rule be not applied in this instance because, as evidenced by the proof submitted by him, the McKay process would not actually produce shingles like those shown in the drawings. We agree thoroughly with the examiner and Board of Appeals in rejecting this contention by applicant. 24 Even assuming that the McKay process is inoperative, as claimed by the applicant, our jurisdictional predecessor, the Court of Appeals for the District of Columbia, in the case of In re Decker, 36 App.D.C. 104, said (headnote): "a patent will not be granted for a product described in prior patents even though the devices for making the product as so described are inoperative." By parallel, this language might easily be applied to the facts of the instant case where, although McKay's process may be inoperative, his conception of the roof design in question was clear and complete, thus indicating lack of invention in the design covered by the appealed claim. See Cohn v. United States Corset Co., 93 U.S. 366, 23 L.Ed. 907; In re Marden, 48 F.2d 428, 18 C.C.P.A., Patents, 1119; In re Crosby, 157 F.2d 198, 34 C.C.P.A., Patents, 701, and authorities cited therein. 25 This case impresses us as being confined to one decisive issue, and we feel that the Board of Appeals was manifestly correct and cite with approval the following from its opinion: 26 "* * * It seems to us that McKay does disclose in Figure 1, and in various parts of his specification, a roof design which is substantially the same as appellant's. * * * Furthermore, it seems to us wholly immaterial for the purposes of a design disclosure how the roof design shown in Figure 1 of McKay is produced since it clearly discloses a certain concept which could be put into practice by merely painting or stippling the shingles to look like the design disclosed in the specification and illustrated in Figure 1. It is our opinion that McKay clearly discloses the design shown in appellant's drawing and the Examiner's rejection thereon is affirmed." 27 For the reasons hereinbefore stated, the decision of the Board of Appeals is affirmed. 28 Affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2089786/	908 N.E.2d 368 (2009) ROBEY v. STATE. No. 49A04-0810-PC-603. Court of Appeals of Indiana. May 28, 2009. ROBB, J. Disposition of case by unpublished memorandum decision. Affirmed. DARDEN, J. Concurs. BAILEY, J. Concurs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3781942/	It is ordered and adjudged that this appeal as of right be, and the same hereby is, dismissed for the reason that no debatable constitutional question is involved. Appeal dismissed. WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur. *Page 327 HON. CARL V. WEYGANDT, CHIEF JUSTICE. HON. CHARLES B. ZIMMERMAN,} HON. CHARLES S. BELL, } HON. ROY H. WILLIAMS, } HON. EDWARD C. TURNER, } JUDGES. HON. EDWARD S. MATTHIAS, } HON. WILLIAM L. HART, }	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/838262/	769 N.W.2d 220 (2008) Theresa ROYCE and Carl Royce, Plaintiffs-Appellees, v. CHATWELL CLUB APARTMENTS, a/k/a Tobin Group, Defendant-Appellant. Docket No. 134879. COA No. 266682. Supreme Court of Michigan. November 7, 2008. Order By order of January 22, 2008, the application for leave to appeal the August 7, 2007 judgment of the Court of Appeals was held in abeyance pending the decision in Allison v. AEW Capital Mgmt, LLP (Docket No. 133771). On order of the Court, the case having been decided on June 25, 2008, 481 Mich. 419, 751 N.W.2d 8 (2008), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. Although the Court of Appeals relied on Allison v. AEW Capital Mgt., LLP (On Reconsideration), 274 Mich.App 663, 736 N.W.2d 307 (2007), and this Court subsequently reversed that decision in Allison v. AEW Capital Mgt, LLP, 481 Mich. 419, 751 N.W.2d 8 (2008), the Court of Appeals determination in the present case to remand for further proceedings because the trial court used a legally unsound basis for granting summary disposition to defendant with regard to MCL 554.139(1) is not in conflict with the reasoning set forth in this Court's opinion in Allison. The trial court on remand must determine whether the defendant owed a duty to the plaintiff under MCL 554.139(1) on the basis of the *221 evidence the plaintiff has presented in this case. CORRIGAN, J., (concurring.). I concur in the denial of leave to appeal so that the trial court can decide whether defendant is entitled to summary disposition under this Court's recent decision in Allison v. AEW Capital Mgt, LLP, 481 Mich. 419, 751 N.W.2d 8 (2008). I write separately only to express continued adherence to my concurring opinion in Allison. For the reasons expressed in that case, I continue to believe that the duty under MCL 554.139(l)(a) to keep the premises and common areas "fit for the use intended by the parties" extends only to significant, structural defects in the property, not to transitory conditions such as snow and ice accumulations. Id. at 442, 751 N.W.2d 8. MICHAEL F. CAVANAGH, J. (concurring in result only.). I agree with the order denying defendant's application for leave to appeal. I disagree with the order, however, to the extent that it implies that defendant's duty is dependent on the evidence presented in this case. Defendant has a statutorily mandated duty to plaintiff to keep all common areas, including sidewalks and parking lots, in a condition that is "fit for the use intended by the parties." MCL 554.139(l)(a). The duty is not dependent on the evidence; rather, the trial court must review the evidence to determine whether defendant violated the statutory duty it owed to plaintiff. MARILYN J. KELLY, J., joins the statement of MICHAEL F. CAVANAGH, J.	01-03-2023	03-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2481344/	936 N.E.2d 1224 (2007) 371 Ill. App. 3d 1195 COOL v. ST. BETHEL BAPTIST CHURCH OF CHICAGO HEIGHTS. No. 1-06-0886. Appellate Court of Illinois, First District. March 16, 2007. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/38113/	United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit April 20, 2005 Charles R. Fulbruge III Clerk No. 03-41244 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS NOELIA CAMPOS MADRIGAL, Defendant-Appellant. Appeal from the United States District Court For the Southern District of Texas (C-03-CR-109-1) ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before SMITH, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* On January 24, 2005, the Supreme Court granted Madrigal’s petition for a writ of certiorari, vacated the prior judgment of this court, and remanded this appeal to this court for “consideration in light of United States v. Booker, 543 U.S.___ [, 125 S. Ct. 738] (2005).” In its remand order the Supreme Court did * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. not specify which of the two majority opinions set forth in Booker was the basis for its remand decision. The Supreme Court did make clear in its Booker decision that both opinions would be applicable to all cases pending on direct review or not yet final as of January 12, 2005. See Booker, 125 S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Madrigal’s appeal satisfies those conditions. In her original appeal to this court, Madrigal claimed two grounds of error: first, erroneous application of the safety valve provision of the Sentencing Guidelines; and second, her assertion that 21 U.S.C. § 841 was unconstitutional on the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000). Nothing in Booker addresses either of these claims of error, and Madrigal failed to object in the district court on either of the grounds addressed in Booker, i.e., (i) a Sixth Amendment violation resulting from an enhancement of a sentence based on facts (other than a prior conviction) found by the sentencing judge, which were not admitted by the defendant or found by the jury; or (ii) that the Sentencing Guidelines were unconstitutional because they were mandatory and not advisory. Consequently, we review for plain error. Because the district court did not enhance Madrigal’s sentence on the basis of any facts found solely by the court, we conclude that Booker’s Sixth Amendment holding is not applicable to this case. However, under the Booker holding that Congress originally intended the Guidelines to be advisory and not mandatory, there is error in this case 2 because the district court viewed and acted under the Sentencing Guidelines as mandatory and not discretionary. Applying our plain error analysis, we conclude: (1) there was error because the district court operated under a mandatory scheme and not an advisory scheme; and (2) such error is now plain under Johnson v. United States, 520 U.S. 461, 468 (1997)(holding it is enough that error be plain at the time of appellate review). However, under the third prong of our plain error methodology, i.e., whether the error affects substantial rights, it is Madrigal’s burden to show that, but for the error of acting on the premise that the Guidelines are mandatory and not advisory, the district court would have made a different decision. In United States v. Mares, 2005 U.S. App. LEXIS 3653, at 27-28 (5th Cir. Mar. 4, 2005), we said that “the pertinent question is whether [the defendant] dem- onstrated that the sentencing judgeSSsentencing under an advisory scheme rather than a mandatory oneSSwould have reached a significantly different result.” That is, the plain error standard places the burden of proof [on the defendant] and re- quires “the defendant to show that the error actually did make a difference: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses.” Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th 3 Cir. 2005)). In fact, the record affirmatively supports the proposition that the district court, if given the opportunity to treat the Guidelines as discretionary only, would likely have imposed the same sentence because the court expressly denied Madrigal’s request for a sentence at the bottom of the Guideline range. The district court’s remarks at sentencing demonstrate that the court also explicitly considered the objectives of sentencing identified in subsections (A)-(D) of 18 U.S.C. § 3553(a)(2). Accordingly, we determine that Madrigal has failed to satisfy the third prong of our plain error analysis, i.e., that the sentence imposed by the district court violated her substantial rights. We conclude, therefore, that nothing in the Supreme Court’s Booker decision requires us to change our prior affirmance in this case. We therefore affirm the conviction and sentence as set by the trial court. AFFIRMED. 4	01-03-2023	04-25-2010
https://www.courtlistener.com/api/rest/v3/opinions/38185/	United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 10, 2005 Charles R. Fulbruge III Clerk No. 04-30675 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FARICE DAIGLE, JR., Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:92-CR-60032-3-TLM -------------------- Before DAVIS, SMITH, and DENNIS, Circuit Judges. PER CURIAM:* Farice Daigle, Jr., appeals the sentence imposed following the district court’s revocation of his term of supervised release. Daigle was sentenced to a term of imprisonment of 36 months, to be followed by a 24-month term of supervised release. Daigle argues that he was denied due process during the revocation hearing because, despite his objections, the district court relied on evidence of his anger management problem. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-30675 -2- Daigle had no due process right to notice of the evidence that the district court might rely on to exceed the recommended guidelines range and impose the statutory maximum sentence. Daigle received sufficient notice that he faced a 36-month sentence by virtue of the statute under which he had been convicted. See 18 U.S.C. § 3583(e)(3). The district court did not deprive Daigle of due process in considering evidence that was not disclosed to him prior to the hearing. Daigle argues that the sentence imposed, which was the statutory maximum, was plainly unreasonable in light of his relatively minor violations of the conditions of his supervised release. He argues that the district court failed to give proper consideration to the recommended guideline range and that the district court could have required him to receive anger management counseling as a condition of supervised release. He also argues that the sentence is unreasonable. Daigle concedes that he failed to raise these issues in the district court and that these issues are subject to plain error review. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). The district court gave consideration to the recommended guideline sentence, but determined that it was not sufficient in light of Daigle’s behavior during the period of supervised release. The district court was not bound by the recommended guidelines. See United States v. Mathena, 23 F.3d 87, 92-93 (5th No. 04-30675 -3- Cir. 1994). The district court properly considered Daigle’s need for counseling in determining his sentence. United States v. Giddings, 37 F.3d 1091, 1097 (5th Cir. 1994). Daigle received the statutory maximum sentence, which was not error in light of the evidence presented at the revocation hearing. The district court did not plainly err in imposing that sentence. The sentence is AFFIRMED. The written judgment, however, erroneously reflects that the district court found that Daigle had violated all conditions of supervised release as alleged in the revocation petition. The case is REMANDED to the district court to amend the written judgment to conform to the oral findings made by the district court at the conclusion of the revocation hearing. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). Daigle’s motion to supplement the record to show that he had received a Certificate of Achievement for successfully completing an Anger Management Program is GRANTED. AFFIRMED; REMANDED TO AMEND THE WRITTEN JUDGMENT.	01-03-2023	04-25-2010
https://www.courtlistener.com/api/rest/v3/opinions/499820/	836 F.2d 1268 UNITED STATES of America, Plaintiff-Appellee,v.Luis Raul AQUINO, Defendant-Appellant. No. 87-1692. United States Court of Appeals,Tenth Circuit. Jan. 11, 1988. Mark T. Langston (Victor L. Abbo with him on the brief), Boulder, Colo., for defendant-appellant. Kenneth R. Fimberg, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee. Before HOLLOWAY, Chief Judge, SETH and SEYMOUR, Circuit Judges. SEYMOUR, Circuit Judge. 1 Defendant Aquino was convicted of one count of illegally possessing a firearm pursuant to 26 U.S.C. Sec. 5861 (1982). He appeals the district court's denial of his motion to suppress evidence seized during a search of his apartment. We affirm. I. 2 This case began with an investigation into illegal drug trafficking by the Lakewood, Colorado police. Lakewood Department of Public Safety Agent Gina Morelli went undercover to purchase illegal drugs. A confidential informant took her to the home of Steven Ruebush, who the informant believed sold cocaine.1 They arrived about 5:00 p.m. on May 19, 1986. Agent Morelli offered $2000 for one ounce of the drug. As expected, Ruebush did not have the cocaine himself; however, he asserted that if Morelli gave him the $2000 he could get some. Agent Morelli refused and told Ruebush to call his source. 3 Ruebush then called Tony Vega, whom Ruebush referred to as "his man." He told Vega that he had seen "a lot of green" and that the buyer wanted to see some drugs. The conversation ended with Ruebush agreeing to go to Vega's home to discuss the deal. Police officers stationed outside Ruebush's home followed him to Vega's residence while Morelli and the informer remained. A few minutes later, Ruebush returned home. He told Agent Morelli that his man was going to get the cocaine and would deliver it in twenty minutes. 4 Meanwhile, officers who had remained at Vega's home saw him leave immediately after Ruebush had gone. They followed him to an apartment complex at 6005 West 28th Ave. Vega entered the complex, but the officers did not identify the apartment he visited. Vega left after a short time and returned directly home. When Ruebush called, Vega told him that the source required cash in advance. In response to this common practice among drug dealers, Agent Morelli then agreed to front a smaller amount of money for a sample of cocaine. If all went well, she would then pay the remaining amount. Ruebush returned to Vega's residence with $400 from Morelli. 5 After Ruebush arrived, Vega drove directly to the 28th Avenue apartment complex while Ruebush waited at Vega's home. This time, the police observed Vega enter a particular apartment. He left shortly thereafter and drove directly home. Ruebush then called Morelli to say that he was on his way back. He arrived at approximately 7:45, produced a small amount of cocaine, and was immediately arrested. Shortly after the arrest, Ruebush's phone started ringing, but he was not allowed to answer. He told the police that he believed that the caller was Vega. At this time, the police also questioned several other persons who had arrived during various stages of the transaction. Although some were uncooperative and at least one produced false identification, the police released these individuals, believing that insufficient probable cause existed for their arrest. 6 After securing the Ruebush residence, police proceeded to Aquino's home. Because the apartment was in Edgewater, the officers contacted the local police. The Lakewood officers then waited thirty to forty minutes, or until 9:20 p.m., for the Edgewater police to arrive. Without attempting to secure a warrant or determine who lived in the apartment, the officers from the two towns planned a warrantless entry. Edgewater officers knocked on the door and told the woman who answered and identified herself as Maria Martinez that they had heard a complaint about noise. When she opened the door, two Lakewood officers rushed in with guns drawn to find Aquino on his living room couch holding a baby. 7 The agents then conducted a "protective sweep" of the apartment.2 During this sweep, one agent entered a closed closet and observed an OHAUS triple beam scale, a grinder, and other paraphernalia often used by drug dealers. No other incriminating evidence or suspects were observed during the sweep. The officers arrested Aquino and obtained consent from him and Ms. Martinez to search the apartment. The consent search revealed cocaine, guns, and over $3000 in cash including the marked bills used by Agent Morelli to purchase the sample of cocaine. The officers seized the evidence. 8 Aquino was charged with two counts of illegally possessing a firearm. He filed a motion to suppress both the evidence seized and various incriminating statements he made after the warrantless entry of his home. The district court denied the motion. Aquino was then convicted on one count and sentenced to fifty-four months in prison. He appeals the denial of his motion to suppress on the ground that the warrantless entry of his home was unconstitutional. II. 9 "[T]he most basic constitutional rule" in the search and seizure area is that exceptions to the warrant requirement must be "specifically established," "well delineated" and "jealously and carefully drawn."3 Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The notion that emergency circumstances may in appropriate cases make a warrantless search constitutional if probable cause exists is a clearly established exception to the warrant requirement. Welch v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984). The contours of a sufficient emergency, however, remain unclear. See Coolidge, 403 U.S. at 455, 91 S.Ct. at 2032 (exception to warrant requirement requires "that the exigencies of the situation made that course imperative"). Because this is the third drug investigation/exigent circumstance case to reach this court in the past year, see United States v. Chavez, 812 F.2d 1295 (10th Cir.1987); United States v. Mabry, 809 F.2d 671 (10th Cir.1987), we examine the question closely. 10 We begin by exploring the relevant Supreme Court pronouncements on the issue. When police seek to enter a home without a warrant, the government bears the burden of proving that sufficient exigency exists. See Coolidge, 403 U.S. at 455, 91 S.Ct. at 2032; Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970). Because "[i]t is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable," Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), this burden is especially heavy when police seek to enter a suspect's home even pursuant to a legitimate seizure. See Vale, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (proper street arrest pursuant to a warrant does not justify house search); Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (search warrant required to arrest individual in the home of a third person); Payton, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (arrest warrant required to seize a person in his own home). The only case in which the Supreme Court has held the exigent circumstance exception sufficient to justify warrantless entry into a suspect's home involved the hot pursuit of a fleeing felon whom the police could have lawfully arrested without a warrant. United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976) (police who attempt to arrest felon outside home may pursue her if she takes refuge inside). 11 In a hot pursuit case, warrantless entry is in part "justified by the significant risk that the [evidence] would no longer be in the [suspect's] possession if the police waited until a warrant could be obtained." Santana, 427 U.S. at 44, 96 S.Ct. at 2410 (Stevens, J., concurring). In such cases, however, the intrusion is also justified by the suspect's flight, which frustrates police efforts to make a legitimate warrantless arrest. Id. at 43, 96 S.Ct. at 2410 ("a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place"). Where police do not have the right to make a warrantless arrest, police knowledge that evidence will be destroyed by a nonfleeing suspect is not always sufficient to justify a warrantless entry. Cf. Welch, 466 U.S. at 754, 104 S.Ct. at 2100 (destruction of evidence by suspect whom police have probable cause to arrest does not justify warrantless entry into suspect's home when underlying crime is minor). Even with probable cause to arrest, the destruction of evidence alone justifies a warrantless entry into the home only when the state interest in preventing the crime (as determined by the penalty imposed for violations) is sufficiently great.4 Id. Although the gravity of the crime cannot in itself create sufficient exigency for a warrantless search, cf. Thompson v. Louisiana, 469 U.S. 17, 21, 105 S.Ct. 409, 411, 83 L.Ed.2d 246 (1984) (homicide cannot justify warrantless search), independent exigent circumstances can justify Fourth Amendment intrusions when the police are investigating grave crimes even though similar circumstances would not justify warrantless intrusions for less serious offenses. See Welsh, 466 U.S. at 754, 104 S.Ct. at 2100.5 12 One additional consideration relevant to determining when police can enter a home without a warrant is made clear by the Court's discussion of arrest warrants. As the Court pointed out in Steagald, 451 U.S. at 215, 101 S.Ct. at 1649, exception to the warrant requirement must not create a "potential for abuse." The Court expressed concern that the police not be placed in a situation where they can create the exception, because well-meaning police officers may exploit such opportunities without sufficient regard for the privacy interests of the individuals involved. See id. III. 13 The Supreme Court cases discussed above mandate the following conclusions: An exception to the warrant requirement that allows police fearing the destruction of evidence to enter the home of an unknown suspect should be (1) pursuant to clear evidence of probable cause, (2) available only for serious crimes and in circumstances where the destruction of the evidence is likely, (3) limited in scope to the minimum intrusion necessary to prevent the destruction of evidence, and (4) supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse. 14 Accordingly, the test in this circuit requires probable cause and exigent circumstances. Cuaron, 700 F.2d 582, 586 (10 Cir.1983). In our two post-Payton home entry cases, the probable cause issue was conceded. Mabry, 809 F.2d at 678; Cuaron, 700 F.2d at 586. In addition, both cases involved serious drug trafficking offenses in which factors beyond police control gave the officers reason to believe that the suspect would destroy evidence. Mabry, 809 at 674-75 (arrestee told police he had to return to his source with the money "right away"); Cuaron, 700 F.2d at 586-87 (officers knew of more cocaine in home, supplier wanted to sell quickly, and individuals observed coming and going). We have also upheld warrantless seizures when they are limited to a temporary internal seizure of the home until a warrant could be obtained, and are confined to a protective sweep for weapons or accomplices. Erb, 596 F.2d at 417. Most significantly, we have pointed out that police should begin the process of obtaining a warrant at the earliest prudent moment. See Chavez, 812 F.2d at 1300; Mabry, 809 F.2d at 675; Cuaron, 700 F.2d at 587-90; Erb, 596 F.2d 412, 419 (10th Cir.1979). We have also stressed that when a telephone warrant procedure is available, police must exploit it. Cuaron, 700 F.2d at 588-91.6 IV. A. Probable Cause 15 Aquino first argues that probable cause to enter his home did not exist in this case. We disagree. Ruebush told Agent Morelli that "his man" would have to get the drugs from another source. The police then followed Ruebush to the home of Vega, presumably his man, who in turn traveled directly to and from Aquino's apartment. The participants in the drug transaction twice followed this travel path without diversion. After the first run through, Ruebush said the ultimate source would not front the cocaine. After the second, Ruebush produced a small amount of the drug. As soon as the police saw the cocaine, but not before, " 'the facts and circumstances within their ... knowledge and of which they had reasonably trustworthy information [were] sufficient in themselves to warrant a man of reasonable caution in the belief that' " contraband was located in the apartment Vega twice visited. Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 2254 n. 9, 60 L.Ed.2d 824 (1979) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Thus, although the police were not certain that the cocaine came from Aquino, they clearly had probable cause to search Aquino's home for additional drugs. B. Exigent Circumstances 16 Acquino also contends that the circumstances were not sufficiently exigent to support a warrantless entry of his home. Our cases indicate that the sale of illegal drugs is a sufficiently severe offense to justify a warrantless entry when police "have reason to believe that criminal evidence" will be destroyed if they do not immediately enter the premises. Cuaron, 700 F.2d at 586. The question remains as to what facts meet this standard. We have stressed that an important consideration is the time necessary to procure a warrant, which was estimated to be three hours by the officers involved in this case. A telephone warrant was unavailable under applicable local law, and nothing in the record suggests that federal agents were involved in the operation. Thus, in order to justify a warrantless entry, the police had to have a reasonable basis for believing that suspects would destroy evidence within three hours. 17 When determining whether police had reason to believe that evidence would be destroyed, we have never held that the police can automatically justify the warrantless entry of a home merely by engaging in a two-part drug transaction and interrupting it after the first part. Like our previous cases, however, this case involves more than the interruption of a two-part drug transaction. Individuals were present during the arrests who gave evasive answers to police questions. The required release of these persons created the possibility that news of the arrests would reach others in the drug connection. More importantly, Reubush's phone rang after his arrest, and he stated that Vega was probably calling. This provided additional evidence that the source of the cocaine was growing suspicious. We conclude that this evidence created sufficient reason to believe that criminal evidence would be destroyed if the police did not immediately enter Aquino's apartment. 18 Although the police had reason to believe a warrantless entry was necessary, we are distressed by the lack of any evidence in the record that the police ever began the process of procuring a warrant even though a local magistrate was on duty at the time. When Ruebush produced the cocaine, but not before, the police had probable cause to believe that Aquino had illegal drugs in his apartment. Nine officers were directly involved in this operation; any one of them could have been dispatched to the magistrate. Similarly the relevant information could have been radioed or telephoned to the station house where an officer not directly involved in the investigation could have sought a warrant. Cf. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971) (officers may rely on other officers' representation of facts establishing probable cause). No matter how reasonable a warrantless entry may be, unanticipated delays may prevent the police from entering a home immediately. Here, the questioning of individuals at the arrest scene and the need to contact and wait for police from another jurisdiction created a significant delay. Had the police immediately begun the process of procuring a warrant, it might have been available at the time of entry, eliminating any possibility of a Fourth Amendment violation or the exclusion of incriminating evidence. 19 Our previous exigent circumstance cases have emphasized that the police began the process of obtaining a warrant as soon as they had probable cause. See Chavez, 812 F.2d at 1300; Mabry, 809 F.2d at 678-79; Cuaron, 700 F.2d at 587-89; Erb, 596 F.2d at 419. Although we have yet to exclude evidence discovered pursuant to an otherwise legitimate warrantless entry because of delay, we stress, as we did in Cuaron, that "we do not here hold that the presence of exigent circumstances obviates the need for a warrant in any subsequent search, no matter how long delayed." Id. at 590. 20 The officers' failure to begin the process of obtaining a warrant is especially troubling in a case involving a home, concerning as does the privacy interests of innocent individuals who might, as here, be living with the suspected drug dealer. In this case, Aquino's wife and three children, had they not consented to a search, would have been subject to police presence in their home for at least an hour and a half longer than would have been necessary had the police begun the process of obtaining a warrant when the existence of probable cause first became clear. In addition, had the police sought a search warrant earlier, the warrant might have been available shortly after the entry, eliminating the need for consent, another possible basis upon which an arrestee can later attack the legality of the search. Proper observance of the warrant requirement thus protects both individuals' privacy interests and the government's interest in convicting criminals. 21 AFFIRMED. 1 The informant wore a listening device allowing officers involved in the operation to know immediately what transpired in the Ruebush home 2 The constitutionality of the officers' actions after they entered Aquino's apartment, namely the initial protective sweep, the procuring of consent to search, and the full scale search, are not raised on appeal. Accordingly, we express no opinion concerning the propriety and scope of the warrantless protective sweep of Aquino's home or the subsequent full scale consent search 3 Police violate the Fourth Amendment when they engage in a warrantless search and no exception to the warrant requirement applies. See Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 410, 83 L.Ed.2d 246 (1984). Despite considerable debate, the warrant requirement remains "[t]he bulwark of Fourth Amendment protection ...," Franks v. Delaware, 438 U.S. 154, 164, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978), and "a cardinal principle" of existing law, Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978) 4 Aside from its specific holding that a nonjailable traffic offense could not support a warrantless entry absent hot pursuit, the Welsh Court shed little light on what exigencies would justify warrantless entry when more serious offenses were involved. Notably, the court cited cases allowing warrantless entry based on exigent circumstances in cases involving murder and armed robbery, but not in cases involving burglary without weapons and distribution of controlled substances. See 466 U.S. at 752, 104 S.Ct. at 2099 5 The Court in Welsh noted that this sort of exigency analysis has the benefit of tying the evaluation to a concrete factor, length of sentence, that police officers could be expected to know. See 466 U.S. at 754 & n. 14, 104 S.Ct. at 2100 & n. 14 6 Many state and municipal police forces have not yet implemented telephone warrant procedures. State law enforcement officers nevertheless have the option of contacting a federal agent or government attorney who can request a telephone warrant from a federal magistrate. Mabry, 809 F.2d at 693 n. 3 (McKay, J., dissenting) (citing United States v. Johnson, 641 F.2d 652 (9th Cir.1980))	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/21723/	225 F.3d 583 (5th Cir. 2000) In The Matter Of: REBECCA MITCHELL BARRON, DebtorCYNTHIA DANIELS, Appellantv.REBECCA MITCHELL BARRON; JOHN A BARRON; CHARLES EASLEY, Appellees No. 99-60833 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 28, 2000 Appeal from the United States District Court for the Northern District of MississippiBefore KING, Chief Judge, and PARKER, Circuit Judge, and FURGESON, District Judge. KING, Chief Judge: 1 Attorney Cynthia Daniels seeks review of a district court order affirming a bankruptcy court order approving her compensation in an amount less than that prayed for in her application for compensation. For the reasons that follow, we reverse and remand. I. FACTUAL AND PROCEDURAL BACKGROUND 2 Rebecca Mitchell Barron and John Barron were divorced in 1994. Under the terms of their separation agreement, Mrs. Barron conveyed her interest in five tracts of real property to Mr. Barron. As part of the same agreement, Mr. Barron was to make four installment payments to Mrs. Barron totaling $210,000. Mr. Barron paid the first installment of $50,000, but failed to make any subsequent payments. 3 In February 1995, the Barrons remarried. Mr. Barron did not re-deed any interest in the five properties to Mrs. Barron. Mrs. Barron, however, forgave the balance of the $210,000 owed her under the separation agreement. Shortly thereafter, she filed a voluntary Chapter 7 bankruptcy case. 4 In September 1995, the Chapter 7 trustee (the "Trustee") filed an application seeking the appointment of Daniels as Attorney for the Trustee. The application stated that Daniels was "willing to work on a one-third (1/3) contingency basis of the amount recovered in the filing of any preferential and/or fraudulent complaints, if warranted." Application For Employment of Attorney Specially, filed Sept. 28, 1995, at 1, In re Barron, No. 95-10538 (Bankr. N.D. Miss.). Both Randolph Lipscomb, Mrs. Barron's divorce attorney and a creditor of the Chapter 7 estate, and Mrs. Barron filed objections to the application. At a hearing on the Trustee's application to employ Daniels,1 Lipscomb's attorney argued that appointment was premature because this was likely an easy case that would simply require Daniels to make a demand for the sums due under the settlement agreement. Also, the attorney drew to the court's attention the extent of the debt owed to Mrs. Barron under the settlement agreement. See Transcript of Hearing, Nov. 17, 1995, at 5, In re Barron, No. 95-10538 (Bankr. N.D. Miss.) ("[I]f the court will look to page four which is paragraph 8A in the separation agreement, part of a court order approving divorce, and it provides for two hundred 10 thousand [sic] dollars in lump sum alimony, the money in four scheduled payments, the first of which was [due on] June 22, 1994, the second June 22, 95, [sic] the third installment in 1996 and the 4th in 97 [sic]."). In November 1995, the bankruptcy court approved the Trustee's application, conditioning approval of Daniel's contingency fee upon an actual suit being filed against Mr. Barron following filing of a demand letter.2 5 In March 1996, Daniels, acting on behalf of the Trustee, filed a complaint against Mr. Barron. In April 1997, she moved for summary judgment. After Mr. Barron filed a responsive pleading, the bankruptcy court held a telephonic hearing, during which it informed the parties that the terms of the separation agreement remained in effect even after the Barrons' remarriage. Accordingly, in August 1997, the court granted judgment against Mr. Barron in the amount of $160,000, theamount owed Mrs. Barron under the separation agreement. 6 Daniels then filed an application for compensation seeking $53,333.33, one-third of the recovery. Objections were filed by the Barrons and a creditor who objected to payment of Daniels's fee in priority to his claim. The bankruptcy court held a hearing, at the conclusion of which Daniels was asked to prepare an itemization of her charges. In November 1997, the bankruptcy court entered an order approving compensation for Daniels in the amount of $24,431.25 with an additional expense allowance of $2,500.00. In an accompanying opinion, the bankruptcy court concluded that its approval of the contingency fee had been improvident. Daniels appealed from this order to the district court. The district court affirmed, and Daniels filed this timely appeal. II. DISCUSSION 7 A bankruptcy court's determination of attorney's fees is reviewed for abuse of discretion. See In re Fender, 12 F.3d 480, 487 (5th Cir. 1994). "'The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)) (alteration in original). "The bankruptcy court's conclusions of law are reviewed de novo." In re Texas Securities, Inc., 218 F.3d 443, 445 (5th Cir. 2000). 8 Section 328 of the Bankruptcy Code allows an attorney seeking to represent a bankruptcy estate to obtain prior court approval of her compensation plan. See 11 U.S.C. § 328(a) ("The trustee . . . may employ or authorize the employment of a professional person under section 327 or 1103 of this title . . . on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis."); In re National Gypsum Co., 123 F.3d 861, 862 (5th Cir. 1997) ("Under present § 328 the professional may avoid . . . uncertainty by obtaining court approval of compensation agreed to with the trustee (or debtor or committee)."). Under § 328, once a compensation plan has received bankruptcy court approval, "the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions." 11 U.S.C. § 328(a) (emphasis added). 9 On appeal, Daniels argues that the bankruptcy court erred in modifying her pre-approved compensation plan absent a proper finding to support a conclusion that the contingency fee was "improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions." Id. In its opinion on the matter, the bankruptcy court stated its understanding of the applicable law as follows: 10 The law, applicable to the issue now before this court, has been clearly delineated by the Fifth Circuit Court of Appeals in Matter of Nat. Gypsum Co., 123 F.2d 861 (5th Cir. 1997) decided October 8, 1997. Judge Reavley, writing for the court, stated the following: 11 Prior to 1978 the most able professionals were often unwilling to work for bankruptcy estates where their compensation would be subject to the uncertainties of what a judge thought the work was worth after it had been done. [Footnote omitted] That uncertainty continues under the present § 330 of the Bankruptcy Code, which provides that the court award to professional consultants "reasonable compensation" based on relevant factors of time and comparable costs, etc. Under present § 328 the professional may avoid that uncertainty by obtainingcourt approval of compensation agreed to with the trustee (or debtor or committee). Thereafter, that approved compensation may be changed only for the following reason: "Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions." 12 The court must therefore set the compensation award either according to § 328 or § 330. If prior approval is given to a certain compensation, § 328 controls and the court starts with that approved compensation, modifying it only for developments unforeseen when originally approved. If the most competent professionals are to be available for complicated capital restructuring and the development of successful corporate reorganization, they must know what they will receive for their expertise and commitment. Courts must protect those agreements and expectations, once found to be acceptable. 13 In re Barron, No. 95-10538, at 6 (Bankr. N.D. Miss. Nov. 4, 1997) (quoting National Gypsum, 123 F.3d at 862-63) (emphasis added). 14 It is obvious from the bankruptcy court's discussion in its opinion that it relied on our statement in National Gypsum that approved compensation could be modified for "developments unforeseen when originally approved." The bankruptcy court stated: 15 At the time of the approval of the contingency fee arrangement, the court did not anticipate the substantial amount of the subsequent recovery resulting from the fraudulent conveyance cause of action against Mr. Barron. . . . 16 The fraudulent conveyance suit never went to trial. Once the court reviewed the motion for summary judgment filed on behalf of the trustee, the outcome was easily determined . . . . 17 . . . . 18 Speaking in sports parlance, this adversary proceeding became a "slam dunk." It was not perceived as such when the contingency fee application was approved. 19 Id. at 7-8. In doing so, the bankruptcy court applied the incorrect legal standard. 20 Although both National Gypsum and Texas Securities, which cites National Gypsum, involved a challenge to the bankruptcy court's determination of the appropriate amount of compensation to award an attorney, each of those cases turned on the question of whether the bankruptcy court had erred by applying § 330 rather than § 328. In neither case were we required to construe § 328 or determine whether developments relied upon by the bankruptcy court were of the type contemplated by the provision. Our mention in both cases of "developments unforeseen" was simply a shorthand reference to the appropriate standard set forth in the statute: a bankruptcy court may only depart from a compensation scheme approved under § 328(a) "if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a) (emphasis added); see also In re Reimers, 972 F.2d 1127, 1128 (9th Cir. 1992). The bankruptcy court here should have relied upon the plain language of the statute rather than our shorthand reference to it. It is not enough that the developments were simply unforeseen. We leave to the bankruptcy court the task of applying the correct legal standard in the first instance. III. CONCLUSION 21 For the foregoing reasons, we REVERSE the district court's affirmance of the bankruptcy court's order and REMANDfor further proceedings consistent with this opinion. NOTES: District Judge of the Western District of Texas, sitting by designation. 1 Mrs. Barron withdrew her objection prior to the hearing. 2 The bankruptcy court found that there was an "extreme likelihood of litigation in this matter at some point in time," but expressed no view on the expected length or difficulty of any such litigation. In re Barron, No. 95-10538 (Bankr. N.D. Miss. Nov. 30, 1995) (Order Approving Employment of Attorney Specially).	01-03-2023	04-25-2010
https://www.courtlistener.com/api/rest/v3/opinions/2042354/	890 N.E.2d 1286 (2004) 349 Ill. App. 3d 1042 IN RE C.M.St.C. No. 3-03-0822. Appellate Court of Illinois, Third District. July 29, 2004. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3036667/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-1777 ___________ In re: Payless Cashways, Inc. * * Debtor * ________________________ * * Silverman Consulting, Inc., * Chapter 11 Trustee for Payless * Cashways, Inc., * Appeal from the United States * Bankruptcy Appellate Panel. Appellant, * * [PUBLISHED] v. * * Canfor Wood Products Marketing, * doing business as Canadian Forest * Products Ltd., doing business as * Canfor U.S.A. Corp., doing business * as Canfor Panel & Fibre Marketing * Ltd., * Appellee. * ___________ Submitted: December 13, 2004 Filed: January 18, 2005 ___________ Before MELLOY, BRIGHT, and BENTON, Circuit Judges. ___________ PER CURIAM. In this bankruptcy action, plaintiff-appellant Silverman Consulting, Inc. (Silverman), the Chapter 11 trustee for debtor Payless Cashways, Inc. (Payless), sought to recover, as preferential, four payments Payless made to defendant-appellee Canfor Corp. and Canfor Wood Products Marketing Ltd. (collectively Canfor). Canfor asserted the defense of contemporaneous exchange for new value under 11 U.S.C. § 547(c)(1). The bankruptcy court1 ruled that Silverman cannot recover the transfers made to Canfor, because Canfor met its burden of proof to establish that the transfers were for new value in a contemporaneous exchange transaction and thus were not avoidable. In re Payless Cashways, Inc., Case No. 01-42643 (Bankr. W. D. Mo. Aug. 13, 2003). The Bankruptcy Appellate Panel (BAP)2 affirmed the bankruptcy court’s decision. In re Payless Cashways, Inc., 306 B.R. 243 (8th Cir. BAP 2004). Silverman appeals contending that the parties intended the transfers to be credit transactions. Silverman also contends no contemporaneous exchange occurred and that new value was not given upon delivery of the lumber orders. The bankruptcy court and the BAP analyzed the transactions in question between debtor Payless and Canfor and both courts agreed that Silverman cannot avoid the transfers. We review the bankruptcy court’s findings of fact for clear error and review de novo the legal conclusions of the bankruptcy court and the BAP. Blackwell v. Lurie 1 The Honorable Arthur B. Federman, Chief Judge, United States Bankruptcy Court for the Western District of Missouri. 2 The Bankruptcy Appellate Panel consisted of the Honorable Barry S. Schermer, United States Bankruptcy Appellate Panel, Eighth Circuit; the Honorable Nancy C. Dreher, United States Bankruptcy Appellate Panel, Eighth Circuit; and the Honorable Timothy J. Mahoney, United States Bankruptcy Appellate Panel, Eighth Circuit. The Honorable Nancy C. Dreher wrote the opinion for the panel. -2- (In re Popkin & Stern), 223 F.3d 764, 765 (8th Cir. 2000). After carefully reviewing this case, we see no clearly erroneous findings and conclude the BAP thoroughly analyzed the issues and properly applied the law. The BAP has written a comprehensive, well-reasoned opinion covering all issues presented on this appeal, with which we agree. Our elaboration on that opinion would serve no purpose. Accordingly, we affirm on the basis of the BAP’s published opinion. ______________________________ -3-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/21738/	IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-10292 Conference Calendar DANNIE LEE MITCHELL, Plaintiff-Appellant, versus DAVID LANEHART, Attorney at Law; CHUCK LANEHART, Chappell & Lanehart, P.C.; COUNTY OF LUBBOCK, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:00-CV-61-C -------------------- August 24, 2000 Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges. PER CURIAM:* Dannie Lee Mitchell, Texas prisoner # 644127, appeals the district court’s dismissal of his 42 U.S.C. § 1983 civil rights action as frivolous pursuant to 28 U.S.C. § 1915. He argues that the defendants conspired to deprive him of his constitutional rights, that he was deprived of the right to effective assistance of counsel at the time of his plea bargain, and that as a result, his guilty plea was not knowing and voluntary. He seeks damages and expungement of his 1993 robbery conviction. Mitchell is * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-10292 -2- essentially challenging his robbery conviction in this § 1983 action. Because Mitchell has not shown that his robbery conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus, Mitchell is precluded from filing a § 1983 action to recover damages for the allegedly unconstitutional conviction by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Mitchell’s appeal is without arguable merit and is thus, frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, Mitchell’s appeal is DISMISSED. See 5TH CIR. R. 42.2. Mitchell’s “Motion to Confirm to the Evidence” is DENIED. The district court’s dismissal of Mitchell’s § 1983 complaint as frivolous and the dismissal of this appeal as frivolous count as two separate strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)(dismissal in district court and subsequent dismissal as frivolous of appeal count as two strikes). Mitchell is cautioned that once he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING ISSUED.	01-03-2023	04-25-2010
https://www.courtlistener.com/api/rest/v3/opinions/7023486/	JUSTICE LINN delivered the opinion of the court: Plaintiff, Fred Jung, brought an action in forcible entry and detainer for possession of commercial premises in a building that he owns. His lessee, Harry Zemel, had used the premises for his dry cleaning business for several years. Zemel had entered a written agreement with Kwang Mun under which Mun was designated “manager” of the business. Jung sued both Zemel and Mun on the grounds that the agreement between Zemel and Mun was actually a sublease and that Zemel’s failure to obtain Jung’s prior written consent to Mun’s subtenancy constituted a violation of the lease. The trial court found in favor of Jung. On appeal, Zemel contends that his agreement with Mun was not a sublease; that even if it could be so construed, Jung waived any objection he had to Mun’s tenancy; and that he did not receive proper notice of the termination of his leasehold. We reverse. Background The evidence adduced at trial reveals the following. In 1977, Zemel entered into a lease with a prior owner, Marco Fernandez. He improved the premises to accommodate his dry cleaning store, putting in tiles, panelling, an electrical system, and fixtures at his own expense. Under the original lease, and renewal options, Zemel remained in possession as lessee from 1978 through 1984. During this period Jung purchased the building and became Zemel’s lessor. Jung and Zemel agreed to continue the leasing arrangement upon the expiration of the original lease in 1984, and they entered into a new lease with a higher rent but essentially the same terms. Zemel also paid Jung $10,000, the purpose of which is not clear in the record, although it was characterized as “back rent” and “unpaid gas and heat.” The new lease was dated January 1985 and Zemel continued paying rent under this lease through the time of trial. After Zemel had finished remodeling the premises in early 1978 he hired a Spanish woman to run the business. Fernandez, the prior lessor, was aware that this woman was operating the business but he never discussed her with Zemel or asked Zemel about the operation of the store. In April 1981 Zemel entered into an agreement with Kwang Mun. Zemel wrote the agreement in longhand and both parties signed it. Under the terms of the document, Mun was to manage the cleaners for a three-year period. The hours of operation were set out. All profits were to remain with Mun and she was to pay all expenses. In return, Zemel was to receive $75 per month “as a return on Zemel’s investment.” Zemel retained the power to designate the firm that would handle all dry cleaning and pressing. He retained title to the fixtures and granted Mun first option to buy if Zemel wanted to sell the store. The agreement contained a clause under which Mrs. Mun and her husband agreed not to compete with Zemel’s business within a one-half-mile radius for two years following termination of the agreement. The agreement stated that Mun was not Zemel’s employee. Zemel did not give Jung a copy of this agreement, nor did he request Jung’s consent to the arrangement he had with Mun. Zemel testified that he never intended to assign his lease. He also testified regarding the extent and nature of his control over the dry cleaning business. According to Zemel, Jung learned of his agreement with Mun in late 1984, and he and Jung discussed it in December of that year. Zemel told Jung that with the rent increases and the $10,000 Jung had demanded, he was not making any profit from the store. The money that Mun was paying to Zemel for the rent expense was less than Zemel was obligated to pay to Jung. Marcos Fernandez, the original lessor, testified that he never had any trouble with Zemel and that it made no difference to him who ran the store as long as the person was not drunk or breaking things. Zemel was the one who paid Fernandez the rent. Fernandez paid for the heat under the lease and never asked for water or gas. Jung testified that he became the owner of the building in March 1978. He admitted that he visited the store several times a month and was aware that Mun occupied the store. He did not recall ever seeing Zemel in the store. Jung stated that Mun showed him the agreement between her and Zemel in December 1984, when she discussed the fact that she and Zemel were negotiating for the sale of the business. According to Jung, the handwriting was so difficult to read that it took him awhile to transcribe it and understand its effect. He showed it to several people, including an attorney. He thought he became aware that it was a sublease in February 1985. He then contacted Zemel, claiming that it violated their lease. Jung testified that he told Zemel one way to cure the lease violation would be to consummate the sales negotiations with Mun. He, Zemel, Mun, and Mun’s attorney discussed the sale during a meeting. Jung testified that he believed the negotiations were at an impasse in April 1985 and he sent a notice of termination of tenancy on May 1. He served the notice on Zemel by handing it to Mrs. Mun at the dry cleaners. He admitted that he knew Zemel’s address in Highland Park, which was on the lease. After the expiration of the 30-day period, nothing happened. Jung testified that he filed the forcible detainer action pro se on July 31, 1985. He had served five-day notices before and after filing the lawsuit. In a letter dated January 4, 1986, months after the notice of termination and the institution of the lawsuit, Jung informed Zemel that he wanted the 6% rental increase that was called for in the 1985 lease. Mun testified that she operates the cleaning business and pays rent to Zemel each month. She admitted that she showed Jung the agreement she had with Zemel in December of 1984. Zemel had asked her to buy the store and they were negotiating in January or February 1985. She said she paid Zemel all the rent that she owed him. Zemel moved for directed finding at the close of Jung’s case, which was denied. Zemel called Jung to testify as an adverse witness, using Jung’s deposition to impeach his trial testimony concerning when Mun contacted him about Zemel’s request for the $10,000 and whether Jung had told Mun that he was going to end the lease with Zemel. Jung admitted that he had told Zemel, in effect, that he wanted $9,000 to allow the sublease. However, Jung maintained that Mun was never formally offered to him as a sublessee. Regarding the $10,000 payment that he received from Zemel, Jung testified that he received $4,500 in November 1984 and another $5,500 at the end of December. He said that the money was to pay for gas bills that he had not previously collected and for what he considered to be low rent in the past. He admitted that the “back rent” figure he came up with was not part of the rent in the lease, but merely what the rent should have been, according to his valuation of the lease. He also testified that he interpreted certain paragraphs in the lease as requiring the lessee to pay the gas and heat. Zemel testified in his own behalf. He stated that when he and Jung met to discuss renewing the lease in 1984, Jung wanted $10,000 as back rent and gas and heat. Zemel did not owe him any money and had paid the rent regularly and on time. His prior landlord had paid for heat because it was a centrally heated store. Zemel contacted Mun and told her that since she was responsible for the expenses of the store she should pay him the $10,000 as reimbursement. Mun apparently complained to Jung, who then called Zemel and told him that he should not try to get the money from Mun. Jung told Zemel that he should sell Mun the store because that would take care of the lease violation. Zemel testified that when he went to the meeting with Mun and her attorney to discuss the sale of the business, Jung was there and said he was “representing” her and looking out for her interests. Zemel told Mun’s attorney that he would sell the store for $35,000, since he had already given Jung $10,000, leaving a net of $25,000. Jung said he thought that was too much and offered his opinion that $8,000 would be a fair price. Zemel further testified that Jung telephoned him at home in February of 1985 and accused him of harassing Mun and of violating the Sherman Antitrust Act. According to Zemel, in April 1986 Jung asked Zemel for $9,000 in exchange for his permission to transfer the lease to Mun. At that time the sales price had been negotiated to $22,500 and Mun’s attorney had drawn up a contract with that amount. Zemel told Jung that if he gave him $9,000 he would end up with only $3,500 because of the previous $10,000 he had paid Jung to renew the lease. Mun testified that although she signed the agreement that Zemel prepared she does not understand English. Her husband does, however, and he reviewed it. At the close of the evidence the court ruled in favor of Jung, granting him possession of the premises. The court stated that “Mr. Zemel apparently viewed himself as operating the business and managing one of the cleaning establishments. That’s what I ruled. He had a lease with the landlord, which was technical documents [sic], and I never did ask whatever he thought he was doing with Ms. Mun or any of the private people. *** [He entered into a sublease] and he never asked for consent until now. That’s a violation of the terms of the lease.” Opinion The ultimate issue in this forcible entry and detainer action is who is entitled to possession of the leased premises. Jung, the owner of the building and lessor, bases his right to possession on the failure of his lessee, Zemel, to obtain his prior written consent before allowing Mun to occupy the premises. Zemel counters that he was not required to obtain Jung’s approval of Mun because she was not a subtenant. Further, he maintains that Jung had no objection to Mun’s tenancy and waived any objection to her by urging Zemel to sell the business to Mun. Since the law requires that a landlord may not withhold consent unreasonably, Jung’s conduct was an improper restraint on the transfer of the leasehold. Zemel initially asks this court to reverse the trial court’s finding that his agreement with Mun constituted a sublease. He does not argue that the determination is against the manifest weight of the evidence, but instead argues that the trial court’s construction of the agreement was erroneous as a matter of law. Additionally, he contends that the trial court was unduly influenced by a preliminary injunction order issued by a different judge in a separate, preliminary injunction action, which found the agreement in question to be a sublease. While we acknowledge that Zemel retained certain indicia of control over the leased premises, and that he may not have intended to create a sublease, we also note that in substance the agreement could be construed as one. However, because we believe that the dispositive issue in this case is whether Jung waived the landlord consent provision, we will assume that the agreement between Zemel and Mun is a true sublease. Since Zemel did not obtain Jung’s prior, written consent to Mun’s subtenancy, Zemel was in violation of the lease, as the trial court found. However, strict compliance with contractual provisions can be waived by the conduct of the parties. (See, e.g., Swerdlow v. Mallin (1985), 131 Ill. App. 3d 900, 476 N.E.2d 464.) Moreover, Illinois law does not favor forfeitures, and courts have noted their readiness to find circumstances that indicate an intent to waive forfeiture. (See Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622, 59 N.E.2d 308 (lessor who accepted rent from assignee was barred from asserting forfeiture based on a lease provision which stated premises could not be assigned without lessor’s prior written consent).) In addition, covenants that restrict the assignment or subletting of leased premises are to be strictly construed against the lessor. See, e.g., Chanslor-Western Oil & Development Co. v. Metropolitan Sanitary District (1970), 131 Ill. App. 2d 527, 266 N.E.2d 405. In the pending case, the parties’ dealings indicate that Jung did not object to having Mun as a subtenant. On the contrary, he was willing to keep her as his main tenant under a new lease if Zemel sold her the business. Jung, as successor to the prior landlord, purchased the building subject to Zemel’s leasehold. During the several years remaining on the original and extended lease, Jung accepted the rent Zemel paid and apparently never requested additional money for heat and gas. Jung had seen Mun, not Zemel, in the store running the business. He voiced no objections to the way Zemel’s business was operating and simply looked to Zemel for the rent. Jung also was willing to renew Zemel’s lease when the old one expired at the end of 1984. To this end, he and Zemel negotiated a lease to take effect in January 1985 with a higher rent and yearly increases. He also demanded that Zemel pay him a total of $10,000. He claimed $4,500 in “back rent,” money that was not required under the original lease but which Jung apparently felt better reflected the value of the lease. He also claimed that he was due $5,500 for heat and gas that he believed was the lessee’s obligation under the original lease, even though it had never before been requested or collected from Zemel.1 Although Jung admitted that he was shown the Zemel/Mun agreement in December 1984 (a time when he was entering the new lease with Zemel and collecting $10,000), he did not notify Zemel of the potential lease violation until February 1985. Even then, he participated in negotiations between Zemel and Mun for the sale of the dry cleaning business, telling Zemel the lease violation would be cured if the sale went through, provided that he received more money. That he did not find Mun an objectionable subtenant or even main tenant is clear from his words and acts. Under these circumstances, we do not find it appropriate to allow the forfeiture of the lease and the award of possession of the premises to Jung. In Illinois, a landlord may not unreasonably withhold his consent to a commercially reasonable subtenant. See Jack Frost Sales, Inc. v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 933, 433 N.E.2d 941; Vranas & Associates, Inc. v. Family Pride Finer Foods, Inc. (1986), 147 Ill. App. 3d 995, 498 N.E.2d 333 (Commercially reasonable standards may include the financial responsibility of the proposed subtenant, the type of business to be conducted, and whether it competes with the business of the lessor or other tenants). In the pending case Jung does not assert that Mun is an unacceptable tenant or that she has not shown herself to be financially responsible in operating the business. Rather, he maintains that Mun was never tendered to him as a subtenant. Ergo, he could not consent to that which was never offered. In taking this simplistic approach Jung does not analyze the waiver issue but simply ignores it. Since under the law Jung could not have withheld his consent to Mun unless he had a reasonable basis for doing so, his attempt to terminate the lease is revealed for what it was — use of the technical lease violation in an attempt to force Zemel to pay him a substantial sum in exchange for permitting Mun’s continued operation of the dry cleaners. From the beginning of his lease in 1978 Zemel had others operate the dry cleaning business. He considered himself the owner of the business and the party responsible under the lease to perform the rental and other obligations owed to Jung. When he made his deal with Mun, in 1981, Zemel was not seeking a way out of his lease with Jung or planning to vacate the premises, as is often the case when the landlord’s refusal to consent to a sublease is in issue. (See, e.g., Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 161 N.E.2d 339; Scheinfeld v. Muntz TV, Inc. (1966), 67 Ill. App. 2d 8, 214 N.E.2d 506.) As far as Jung was concerned, no change in the business occurred and no threat to his collection of rent arose. Jung was not required to find a new tenant to fulfill an unexpired term. Nevertheless, several weeks after seeing a copy of the Zemel/Mun agreement, Jung took the position that because Zemel had not obtained Jung’s consent to Mun’s sublease, he could declare the lease forfeited at any time. Armed with that belief, he waited for months to do so, first telling Zemel to forget about getting the $10,000 from Mun and then telling him that the violation could be cured if Zemel sold Mun the business and paid him additional sums of money to permit the transfer. In the meantime, the business operated as usual, Jung continued to collect all rents due under the new lease, including demands for additional sums in heat and gas. Mun continued to run the store, as she had for years with Jung’s awareness of her existence, if not legal status. The only thing that had changed was Jung’s perception of the arrangement between Zemel and Mun. His financial risk did not change. Once he decided that Mun was a subtenant, he apparently thought that he was entitled to profit from the situation, far beyond the terms of the lease or the expectations of the parties. Meanwhile, he continued to treat the 1985 lease as being in effect and he even sent a reminder in January 1986 that a percentage rent increase was due from Zemel. See Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622, 632, 59 N.E.2d 308, 312 (Landlord “cannot be heard to say [lease] is valid for one purpose, and, in the same breath, that it is invalid for all other purposes”). We conclude that Jung’s conduct constituted a waiver of strict compliance with the lease provision that required his prior consent to Mun’s subtenancy. That he had no commercially reasonable objection to Mun’s occupancy of the leased premises is evident from his dealings with Zemel and Mun in connection with the proposed sale of the business to Mun. Accordingly, we hold that the judgment granting Jung possession must be reversed and judgment entered in favor of Zemel. Because of our holding, we need not reach the notice issue. For the foregoing reasons, we reverse the judgment of the trial court. Reversed. JOHNSON and McMORROW, JJ., concur. Although Zemel took the position at trial that he did not owe the $10,000 to Jung, he nonetheless paid it. He claimed that Jung otherwise would not have renewed the lease. Zemel then attempted to collect it from Mun under his agreement with her that she pay the “expenses” of the store. Not surprisingly, she balked at paying a $10,000 charge of which she had no knowledge or control. When Zemel explained what it was for and she then questioned Jung, he attempted to prevent Zemel from bothering Mun for the money. He even interceded in the sales negotiations that Mun and Zemel were conducting. This peculiar situation grew worse when Jung told Zemel that he wanted $9,000 if Mun purchased the business from Zemel.	01-03-2023	07-24-2022
https://www.courtlistener.com/api/rest/v3/opinions/499874/	836 F.2d 1341 Silkes (Thomas F.), d/b/a Potter's Pantry Cat.v.U.S. NO. 87-1260 United States Court of Appeals,First Circuit. NOV 16, 1987 1 Appeal From: D.Mass. 2 AFFIRMED.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/499876/	836 F.2d 1341 Lopez (Magda I.)v.Secretary of Health and Human Services NO. 86-2133 United States Court of Appeals,First Circuit. DEC 01, 1987 1 Appeal From: D.P.R. 2 AFFIRMED.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/225856/	184 F.2d 802 CONTINENTAL OIL CO. et al.v.UNITED STATES.UNITED STATESv.CONTINENTAL OIL CO. et al. No. 11774. United States Court of Appeals Ninth Circuit. Oct. 16, 1950. L. R. Martineau, Jr., Richard C. Heaton, Joseph P. Rinnert, Glenn B. Martineau, all of Los Angeles, Cal., for appellant Continental Oil Co. D. W. Woods, Martin J. Weil, Olive E. Boswell, all of Los Angeles, Cal. (A. L. Weil, Los Angeles, Cal., of counsel), for appellant General Petroleum Corp. A. DeVitt Vanech, Asst. Atty. Gen., Robt E. Mulroney, Attorney, Dept. of Justice, Washington, D. C., Francis B. Critchlow, Sp. Asst. to Atty. Gen., Marvin J. Sonosky, Attorney, Dept. of Justice, Washington, D.C., for United States of America. Before HEALY and POPE, Circuit Judges, and LING, District Judge. POPE, Circuit Judge. 1 In 1929 and 1930 the United States issued to appellants Continental Oil Company and General Petroleum Corporation, herein called, respectively, Continental and General, various oil and gas leases, covering lands in the Kettleman Hills field in California. The leases were made pursuant to section 14 of the Mineral Leasing Act of February 25, 1920, 41, Stat. 442, 30 U.S.C.A. § 223. 2 The Secretary of Interior, asserting that the posted prices for crude oil in the field, and the prices at which these companies sold and disposed of natural dry gas and natural-gas gasoline,1 and upon which they calculated and paid royalty under the leases, were unreasonably low, and not in accord with true values, in 1931 made certain orders establishing minimum limitations upon valuations of oil and gas for royalty purposes. The companies affected by the orders declined to conform to them or to pay in accordance therewith, and this suit was instituted against Continental, General, and 14 other lessees, to secure a judicial determination of the Secretary's authority to make the minimum limitation orders, to recover additional royalties asserted to be due under such orders, and to obtain cancellation of leases of defendants who failed to comply with the court's orders in respect to such matters. 3 Concerning the Government's claim for additional royalty on account of crude oil, the trial court held that under the terms of the leases the Secretary of the Interior was not empowered to make a binding determination of the value of the crude oil and that the companies were not obligated to calculate or pay royalty on the minimum price basis prescribed by the Secretary's order. The court held, however, that during the period July 1, 1929 to August 29, 1935, the crude oil market at Kettleman Hills was not an open market and that the posted prices for crude oil there during that period did not reflect the market value thereof. The court found that the lessees were required by the leases to pay a royalty based upon market value of the oil produced, which value the court found to be in excess of the posted prices on which the companies had made settlement, and required them to account and pay for the difference. The unpaid balance determined by the trial court to be owing by Continental on account of crude oil royalties was $128,261.50; the balance charged to General was $162,395.98, exclusive of interest. With respect to the Secretary's orders determining minimum valuations of dry gas and casing-head gasoline for royalty purposes, the court held that the Secretary's orders if enforced prospectively, that is to say, with respect to the production subsequent to the dates of the orders, were expressly authorized by the leases and were valid and enforcible, and that the Companies must account for additional royalties in accordance with those orders. 4 Continental and General have appealed from the judgment entered upon such findings and the United States has cross-appealed contending: (1) that the erred in holding that the Secretary lacked power to determine the value of crude oil for royalty purposes; (2) that the court erred in its determination of the market value of the crude oil at Kettleman Hills in that the value found by the court was too low; and (3) that the court erred in holding that the Secretary's minimum value order relating to natural gas dated June 7, 1937, and referred to as the (natural gas net realization order), was invalid as applied to gas produced prior to June 1, 1937. Both sides assign error in respect to the court's computation of interest upon the recoveries. 5 The facts of the case are very clearly stated in the above opinion of the district court which is reported in 73 F. Supp. 225. For this reason we consider it unnecessary to state the facts that give rise to the controversy here present except to the extent required to bring in mind the essential facts upon which, in our opinion, the decision must turn. And because that opinion so thoroughly discusses the issues presented in the court below, we propose here to make frequent reference to portions thereof. 6 The rights of the parties are determined by the provisions of the leases, read in the light of the provisions of the Mineral Leasing Act, and we shall therefore briefly allude thereto. 7 General is an integrated company, that is to say, one which is engaged in all branches of the petroleum industry from the production of crude oil to marketing, both wholesale and retail, of refined petroleum products; while Continental on the other hand, is so far as production in California is concerned, a non-integrated defendant, engaged solely or primarily in the production of crude oil and natural gas. We shall note that this difference in the operations of the two appellants gives rise to different problems with respect to each of them. 8 1. Provisions of Leases Relating to Royalties. 9 The leases provided for royalty at varying percentages of production depending upon whether the leases were so-called (a) leases issued in consequent of the lessee having become entitled thereto as a permittee under a prospecting permit under section 13 and 14 of the Mineral Leasing Act, 41 Stat. 441, 442, cf. Title 30 U.S.C.A. § 223, or whether they were the so-called (b) leases calling for a higher royalty rate or percentage. The percentage under the (a) leases was 5%; the percentage under the (b) leases, ranged from 12 1/2% to 33 1/3%. But, aside from this variation in percentage, the language of the leases with respect to the payment of royalty, was the same.2 Under section 2(c) the lessee under the (a) lease was required (To pay the lessor in advance, beginning with the date of the execution of this lease, a rental of one dollar per acre per annum during the continuance hereof, the rental so paid for any one year to be credited on the royalty for that year, together with a royalty on all oil and gas produced from the land leased herein (except oil or gas used for production purposes on said land or unavoidably lost), as follows: Five per centum (5%). 10 The corresponding section of the (b) lease was identical except that instead of the five per centum mentioned in the (a) lease, a scale of varying percentages depending upon the character and quantity of the production was specified. In Sec. 2(c)(3) appearing in all leases, the royalty on the gas and casing-head gasoline was fixed at a designated percentage of its value, and provided: (The value thereof in the field where produced, of gas and casing-head gasoline, for royalty purposes, unless such gas or casing-head gasoline is disposed of under an approved sales contract or other method as provided in subdivision (d) of this section, shall be as fixed by the Secretary of the Interior". (Italics added). 11 The leases further provided that (When paid in value, such royalties shall be due and payable monthly on the 15th of each calendar month following the calendar month in which produced, to the Receiver of Public Moneys of the land district in which the land is situated; when paid in kind, such royalty oil shall be delivered in tanks provided by the lessee on the premises where produced, unless otherwise agreed to by the parties hereto, at such times as may be required by the lessor * * * ). 12 Under Sec. 2(d) of the lease, an additional obligation of the lessee was stated as follows: (d) Sales contracts.- To file with the Secretary of the Interior copies of all sales contracts for the disposition of oil and gas produced hereunder except for production purposes on the land leased, and in the event the United States shall elect to take its royalties in money instead of in oil or gas, not to seel or otherwise dispose of the products of the land leased except in accordance with a sales contract or other method first approved by the Secretary of the Interior). 13 It is noted that although the percentages are listed with great detail, as, for instance, the requirement that the royalty shall be (Five percentum (5%) or (12 1/2 per cent), as the case may be, yet Sec. 2(c) quoted above omits to state whether royalty is calculated at 5% or 12 1/2% of the value of the production or of the price at which the production is sold, in cases where royalty is taken in money instead of in kind. It should be observed, however, that the Mineral Leasing Act, whose terms and provisions are made a part of the lease, in providing for royalties of varying percentages, recites that the royalty shall be a certain percent (in amount or value of the production). Act of February 25, 1920, c. 85, sec. 14, 41 Stat. 442. It is also to be noted that the language in italics in the above quotation from section 2 (c)(3) authorizes the Secretary of the Interior in certain cases to fix the values of gas and casing-head gasoline for royalty purposes, but there is no similar provision authorizing the Secretary to fix the values of crude oil. 14 2. The Secretary's Minimum Value Order Respecting Crude Oil Royalties. 15 About April 18, 1931, the Secretary of the Interior had arrived at the conclusion that the posted prices for crude oil at Kettleman Hills were less than the market value of the oil. The Secretary notified all Government lessees in the field that the United States proposed to take in kind all royalty oil and wet gas and advertised for bids for such oil and gas. He received no satisfactory bids. Then on June 4, 1931 he issued an order which notified the lessees that offers for purchase of the Government's royalty oil and wet gas at private sale at not less than the market price would be received until noon on June 22, 1931, and that in the absence of satisfactory offers before that time, all royalty accruing to the United States from lands in the oil and gas field would be taken in money computed in accordance with the terms of the leases. The order then stated: (Your attention is called to the lease requirement (Sec. 2-d) that when the United States shall elect to take its royalties in money instead of in oil or gas, the lessee shall not sell or otherwise dispose of the products of the land leased except under a sales contract or other method first approved by the Secretary of the Interior, and to the fact that approval heretofore accorded existing sales contracts has been given subject to the condition that nothing therein contained shall be construed as affecting any of the relations between the United States and its lessee, particularly in the matter of taking royalty in kind and the method of computing royalties due as based on a minimum price; to the lease provision (Sec. 2-c-3) that the value in the field where produced, of gas and casing-head gasoline for royalty purposes shall be as fixed by the Secretary of the Interior; and to the fact that the minimum price basis for royalty settlements on gas in California has heretofore been fixed at 5 cents per 1,000 cubic feet and on natural gas gasoline in Kettleman Hills at 6 cents before the current published San Francisco price for gasoline in tank wagon lots, exclusive of tax, such prices to be used in computing royalty accruing to the Government unless the lessee receives a greater price, in which case such greater price shall be used. Supplementing these provisions, effective July 1, 1931, and until further notice, the highest price posted in California for crude oil of equal or lower gravity is fixed as the minimum price basis on which settlements shall be made for royalty on crude oil produced in the North Dome Kettleman Hills field, a higher price to be made the basis of settlement if and when obtainable". (Emphasis supplied.) 16 The portion of the quoted order which is italicized constitutes the so-called minimum value order relating to crude oil, the terms of which the Government sought to enforce in this action. 17 The district court held that the Secretary was without power under the leases to make such an order for the reason that while the leases reserved to the Secretary the right, in certain cases, to fix the royalty value of natural gas, the leases contained no reservation of a similar right in respect to royalty value of crude oil. 18 The Government contends that section 2(d) of the leases quoted above, which empowered the Secretary to approve or disapprove sale contracts for the disposition of oil produced under the lease, whenever the United States should elect to take its royalties in money, impliedly grants the Secretary the power to make such an order. The power to approve or disapprove the sales contract or other method of disposition of production under the leases, the Government says, embraces the lesser power to approve on condition. The effect of the Secretary's order, it is said, was to approve the proposed method of disposal (on condition that the royalties be paid on the basis of the minimum value fixed by the Secretary). The Government argues that the district court's conclusion that this section did not so empower the Secretary was based on a stringent application of the principle of expressio unius est exclusio alterius. The Government points out that the original lease forms established by regulations contained section 2(d) but not section 2(c)(3); that the latter section was inserted later to protect the royalty interests of the United States in respect to gas production which was being disposed of by waste and other noncommercial methods. The Government argues that since the section 2(c) (3) was inserted for this special purpose, its inclusion in the lease should not form the basis for any decision that its express language demonstrates an intentional exclusion of the right to fix the value of royalty oil. 19 We think that the conclusion reached by the trial judge was right. We believe that such a conclusion must be arrived at in the premises not merely by application of the rule expressio unius est exclusio alterius but for the simple reason that no such right to determine the value of royalty oil is stated in the lease. Leases of the kind here involved are predicated upon large expenditures of money, time and effort in making the required discoveries and in bringing these properties into production. The rights of the lessees are valuable property rights. A contract provision authorizing one party to a contract to fix the obligation of the other party by unilateral action, is so foreign to ordinary contracts and so drastic in its operation that we think it should not be implied in the manner for which the Government is here contending. We think that such a right cannot have been within the contemplation of the parties in the absence of an express reservation to that effect. 20 3. Whether the Posted Price for Crude Oil at Kettleman Hills Represented the True Values Thereof for Royalty Purposes. 21 After determining that the Secretary of the Interior was without authority to fix the value of the royalty oil, the court proceeded to determine what was the reasonable value of the oil for the period in question. It found that the integrated defendants, including General, made it a practice to post or publish for the field, a schedule of the prices which they were currently paying or offering to crude oil producers. It found further that at no time prior to August 29, 1935, was there an open or competitive market for crude oil at Kettleman Hills and that at such times the posted field prices were artificial, discriminatroy, and substantially less than the prices the integrated defendants were paying for comparable crude oil in other California fields and substantially less than the reasonable market value of the oil. 22 The court further found, however, that after the date mentioned, the posted prices did represent the reasonable market value of the oil. 23 The finding that the posted field prices were substantially less than the reasonable market value of the oil, is attacked by the appellants on a number of grounds. Thus, Continental, as a nonintegrated company, which the court held had nothing to do with the determination of the posted prices, asserts that such a finding, whether supported by evidence or not, is immaterial with respect to it. With that contention we shall deal later. The argument which we must now consider is that the evidence is insufficient to support or justify such finding. This argument proceeds in two forms. 1. In the first place it is contended that a major portion of the evidence upon which this finding is based was irrelevant, incompetent and inadmissible. 2. It is further asserted that even assuming the relevancy and competency of such evidence, a fair consideration of all such evidence, a fair consideration of all the evidence would demonstrate that the finding was clearly erroneous. 24 The evidence upon which the trial court based its finding upon this point, and its analysis of the facts disclosed by the evidence, and the method by which it arrived at its determination, are set forth in those portions of the court's opinion which appear at pages 238 to 249 of 73 F.Supp. It is there disclosed that in arriving at this finding the trial court relied in part, although not entirely, upon certain computations compiled by one McCammon, and introduced as part of McCammon's deposition. 25 The evidence discloses that the posted field prices were made by Standard Oil Co., an integrated defendant, and that while General and the other integrated defendants also posted prices, they generally adopted those prepared and posted by Standard. In an effort to establish the manner in which Standard arrived at its posted prices, and the factors taken into consideration by it in doing so, counsel for the Government requested Standard to furnish the name of one of its employees who could testify concerning Standard's computations of posted prices. McCammon was designated by Standard for that purpose. In his deposition he identified a series of schedules, samples of which appear as tables B and D on pages 241 and 242 of the court's opinion, 73 F.Supp. These schedules, received as exhibits and from which much of the information contained in the district court's opinion is derived, disclose the witness' analysis of the data from which Standard's posted prices in various fields in California were said to have been derived. 26 It is strongly urged by appellants that the witness was not competent to furnish this information; that the schedules were put together by McCammon in 1939, after the inception of the suit, and from miscellaneous data procured from Standard's files. It is further urged that McCammon had no personal knowledge of the factors which went into the making of the posted prices established by Standard Oil Co.; that the figures and computations were secured by him from a search through Standard's files and by word of mouth from other employees of Standard, and other similar sources, that they are based on hearsay only,3 and that therefore the schedules should have been excluded. Appellants assert that they cannot be considered as a basis for the court's finding as to inadequacy of the posted field prices. 27 It is to be noted that the district court, 73 F.Supp. at page 245 of its opinion, supra, calls attention to other evidence with which it considered tended to establish the same conclusions as those indicated by the McCammon computation. In its briefs before us, the Government urges that the schedules of prices of the major price posting companies in all California fields, from the beginning of production at Kettleman Hills to the date suit was filed, and which are in evidence apart from the McCammon deposition are sufficient to show the existence of a discriminatory market at Kettleman Hills and that the posted prices there prior to August 29, 1935, were below the reasonable or true values of the oil. It is said that the price schedule evidence, with nothing more, supports the trial court's finding. 28 Because of the importance which the court attached to the McCammon schedule, we find ourselves unable to determine from the record whether the court would have made the same finding had the McCammon evidence been held inadmissible. Cf. Bridges v. Wixon, 326 U.S. 135, 154, 156, 65 S. Ct. 1443, 89 L. Ed. 2103. We therefore consider it necessary to determine whether the so-called McCammon schedules were properly before the court. 29 As disclosed by the trial court's opinion, 73 F.Supp at page 246, the compilations and computations were transmitted to counsel for the Government by Standard's attorney under date of September 29, 1941, prior to the taking of the deposition, and were accompanied by a letter, the so-called Felix letter, containing the statement: (The computations reflected in the enclosed were made by employees of the company and submitted to said executives in advance of the determination of such prices). The footnote, 73 F.Supp. on page 247 of the trial court's opinion sets forth the circumstances under which this letter was received and read in evidence. 30 It is plain that the court considered that it might credit the statement here quoted from this letter, because the letter had been received in evidence without objection. As to whether it was so received, the parties are in violent disagreement. The letter was read into the record in the course of a colloquy between counsel during an interruption in the reading of the McCammon deposition. Shortly before this interruption and during the reading of the deposition, after the question 'Is any attempt made to arrive at the cost of different products?' objections were made which pursuant to stipulation were on behalf of all parties, as follows: 'I object to this question and to subsequent questions on the ground that they are incompetent, irrelevant and immaterial, and do not, nor does any one of them, tend to prove or disprove any issue presented by the pleadings * * * . That the offered testimony is irrelevant and immaterial on the issue of market value of Kettleman crude oil. The reasons or considerations or methods which prompted Standard to post a price for Kettleman crude have no relevancy in determining whether said posted price was or was not market value * * . I make the further objection that the offered testimony is res inter alios acta and hearsay and offered without proper foundation * . Neither company * * is shown to have acquiesced in or had any knowledge or notice of any of these matters or circumstances which may have been considered by Standard Oil Company of California in posting its prices. Under such circumstances, an admission made by an employee of Standard Oil Company of California cannot be evidence as to any other defendant). It was stipulated that the objections should run (to each question from now on in the deposition of Mr. McCammon). 31 In overruling the objections, the court expressed its view of the purpose of the evidence as follows: (Herein is offered evidence of the acts of certain integrated defendants as admissible against all defendants on the basis that such evidence is to lay a foundation for the introduction of certain other evidence; that is to say, that such evidence is expected to be connected with proof of other facts, all of which will show, on the part of the integrated defendants, a control of the market in Kettleman Hills. Upon such showing, plaintiff will then offer evidence other than that of market prices in such field, in order to establish value). The Court then stated: (May the acts of the integrated defendants be received in evidence against the non-integrated defendants as a foundation for the expected proof of value? Yes, upon plaintiff's theory of the case. Plaintiff contends and expects to show that the non-integrated defendants while not actually participating in the establishment of market prices in Kettleman Hills, were aware of the existence of such prices; that they knew such were established by the integrated defendants; that such non-integrated defendants, for their own advantage, refused to account on the basis of true value, but accounted on the so-called market prices (posted prices) which were a false value. In such circumstances, it seems clear that evidence of such acts is admissible). Thereupon plaintiff proceeded with the reading of the deposition as shown in the footnote above mentioned, court's opinion, 73 F.Supp. at page 247, to the point which is the end of the first paragraph in the second column of the footnote. What follows in that footnote was the colloquy of counsel above referred to. The footnote would be more accurate if the matter to the conclusion of the first paragraph in the second column were in double quotation marks to indicate that to this point the deposition was being read and that at that point the reading of the deposition was interrupted. 32 Subsequently the court announced its interim opinion to the effect that the posted prices at Kettleman Hills were not representative of true value and announced that the court would then proceed to take further evidence as to the value of the oil and gas. Thereupon the Government proceeding to re-offer the McCammon exhibits as evidence of actual value. At that later stage counsel referred to the Felix letter and then interposed an objection that it was not admissible as to any of the defendants other than Standard. 33 The trial court placed much emphasis upon the quoted language from this letter. If the statement there made can be taken to be a fact, its importance is manifest. The Government was here undertaking to prove that the prices which Standard posted, and which the other integrated companies followed and adopted, were set arbitrarily low and with a purposeful disregard of true values; that is to say, in an effort to rig the market. The statement in the letter is that Standard's executives had these computations before them when they established the prices. As the trial court pointed out, these particular sheets could not have been furnished the executives, because these exhibits were prepared by McCammon after the case was filed. The court understood the letter to state that the same computations contained in the sheets had been supplied to the executives. If they were, then an examination of them,as is possible by an inspection of those summarized in the trial court's tables A, B. C, D, and E, 73 F.Supp. at pp. 240-243, would indicate a deliberate disregard of those factors which determined the prices in other fields, when Standard's executives came to fix the prices at Kettleman Hills. 34 That the statement in the letter was hearsay is plain. It was a testimonial declaration made out of court, and was considered by the court as in the record for the purpose of proving the truth of the fact there asserted. But the court held that it might consider the statement because the letter went in without objection.4 35 If the statement was received without objection, it was entitled to consideration as substantive evidence of the fact asserted, notwithstanding its hearsay character. Rowland v. Boyle, 244 U.S. 106, 108, 37 S. Ct. 577, 61 LEd. 1022; Reidy v. Myntti, 9 Cir., 116 F.2d 725; Nelson v. Fernando Nelson & Sons, 5 Cal. 2d 511, 55 P.2d 859. Had Felix, the writer of the letter, one of Standard's attorneys, been on the stand, his testimonial qualifications might have been drawn in question by a requirement that his knowledge of the matter be established. But again, if no proper objection was made, the statement has some evidential quality. Cf. Wightman v. Campbell, 217 N.Y. 479, 112 N.E. 184. 36 We think the court was right in its understanding that the letter was in evidence without objection, (the stipulation was that the objections stated should run (to each question from now on in the deposition), the letter was not read in answer to any question), and we think the court had a right to assume that the defendants wanted the letter in the record. The letter contained certain reservations made by Standard, e.g., that (it does not represent or concede that such information, in fact, sets out formulae or bases on which its field prices were determined). This explains, we think, why the attorney for Standard, with the apparent acquiescence of all defendants, insisted on reading the letter into the record. 37 At the time the defendants had been put on notice, by the court's ruling as to the theory upon which the court was proceeding, and that the evidence offered was being received against all defendants. If the appellants intended to object to the letter, they failed to manifest their intent to the trial judge. He was made aware of no such objection. It is elementary that objections to offered evidence must be sufficiently specific to bring their point home to the trial judge. Cook-O'Brien Const. Co. v. Crawford, 9 cir., 26 F.2d 574. 38 We cannot overlook the fact that, tenuous as this foundation is for the introduction of this evidence, that which was offered by the appellants upon this issue was not above suspicion. The government, after an effort to obtain, through discovery procedures, copies of the formulae on which the posted prices had been based, succeeded only in securing from General, and the remaining integrated defendants other than Standard, the information that they had followed the prices posted by Standard. In response to an inquiry as to who, in Standard's organization, could furnish the required computations, the Government was advised that McCammon was the man. McCammon's deposition left much to be desired in foundation, definiteness, certainty, and testimonial qualification, but it was obviously the best that the Government could produce. If the data there supplied was in any respect in error, it was assuredly within the power of the various defendants, and of any of them to supply comparable calculations and computations disclosing the factors bearing on values at the several fields. We agree with the trial court's statement that (these defendants possessed, or could obtain, all data through their own research which were in the possession of Standard). But neither Standard, nor any of the others, chose to produce more accurate computations than those of McCammon. Instead, they undertook to bottom their defense upon such general testimony as that Kettleman Hills oil carried much was; that its gasoline was not high in octane rating; that the great new production in this field created an oversupply in the market, and a supply of oil of a type the industry was not prepared to handle; that this oil was subject to more than ordinary transportation losses; and the like. All such evidence was important, and we do not for a moment suggest that the court below might not have accepted it as fully explaining the posted prices notwithstanding much of it was controverted by other evidence. This, of course, was a fact determination which was entrusted to the trial court. But so far as the McCammon exhibits are concerned, their inaccuracy as to the matters shown therein, could be demonstrated only by evidence directed to proving wherein these schedules were in error. 39 We are mindful of the ancient rule, codified in the California codes, 'That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore, * * * if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust'. Cal. Code Civ. Proc. Sec. 2016. 40 There was substantial evidence other than that furnished by the McCammon schedules tending to support the court's conclusion that because of a discriminatory market at Kettleman Hills, the posted prices for oil during the 50 months period prior to August 29, 1935, did not represent true values. Very complete schedules of posted prices established by the major price posting companies in California covering the various California fields were introduced in evidence, and reproduced graphically. Similar graphs permitted comparison of the treatment of Kettleman Hills oil during the 50 months period found by the court with that in the period subsequent thereto, which the court stated was a period when the posted prices reflected true values. The graphic study of these price schedules discloses that during the 50 months period prices posted in fields other than Kettleman show a correlation between price and gravity, with prices increasing with gravity. The same is true of the Kettleman prices after August 29, 1935; but for the 50 months period prior to that date, Kettleman prices are the same per barrel regardless of increases in gravity. 41 There was also evidence tending to show substantial identity between Kettleman Hills oil and Santa Fe Springs oil within the same gravity ranges. Comparison of posted prices during the 50 months period with respect to some gravities in Santa Fe Springs and Kettleman Hills discloses a discrimination against Kettleman Hills very substantially in excess of anything to be accounted for by differences in transportation costs. On the other hand, when a similar comparison is made, in the period after August 29, 1935, the prices posted in the two fields for oil of the same gravity is substantially identical. 42 Suffice it to say that in view of our holding that the McCammon schedules were properly considered by the court, upon this phase of the case we hold that in reaching the finding here considered, the court was passing upon a question of fact; that here was sufficient evidence to sustain that finding of the court, and that we cannot say that such finding was clearly erroneous. 43 4. Whether the Determination of the Actual Market Value of Royalty Oil was relevant and Material. 44 After deciding that the posted prices for Kettleman Hills oil during the 50 months period did not represent the true value of the oil, the court proceeded to determine that value and found that the oil produced at Kettleman Hills was for all practical purposes identical, gravity for gravity, with crude oil produced in the Santa Fe Springs field and that the prices posted and paid during the period in question for Santa Fe crude provided a proper criterion for measuring the reasonable market value of Kettleman Hills crude oil during that period. The court found that because of difference in geographical location of the two fields, with consequent differences in cost of transportation to market, Kettleman Hills oil was worth 10cents per barrel less than comparable Santa Fe Springs oil; the 10cents differential being held reasonable and proper on account of different transportation costs. The court found that the market values of Santa Fe Springs oil varied directly and uniformly with the gravity of the oil. As Kettleman Hills oil extended over a broader range of gravities than that produced at Santa Fe Springs, the court extended the schedules of Santa Fe Springs prices during the 50 months period by extrapolation to cover the range of gravities produced at Kettleman Hills, and used the extended prices through application of the 10cents differential mentioned to determine the values of the Kettleman Hills oil. 45 Both parties have assigned error in respect to this finding of the trial court. 46 The Government claims that when the market value of Kettleman Hills crude oil is related to the market value of Santa Fe Springs crude oil, the allowance for additional transportation costs in respect to Kettleman Hills oil should be 2cents instead of 10cents per barrel and therefore that the court should have found the true market value of Kettleman Hills oil to be 2cents per barrel less than comparable gravities of Santa Fe Springs oil. This contention is based upon an assertion that oils from the two fields mentioned would find a common market at tidewater: Santa Fe Springs oil at San Pedro, and Kettleman Hills oil at Estero Bay and Avila, to which points pipe line connections were available. We shall have occasion to deal with the Government's contention in this respect hereafter. 47 Continental, on the other hand, has devoted a considerable portion of its argument in support of its contention that, so far as it is concerned, being a non-integrated defendant, a fair interpretation of the terms of the lease would disclose no obligation on its part to compute royalties upon any basis other than the price actually received by Continental. 48 The record shows and the court found that there was no evidence to indicate that Continental in any manner participated in any rigging of the market or in any practices designed to establish posted prices below the reasonable or true values of the oil. Continental was obliged to sell the oil for what it could get. Our attention is called particularly to section 2(d) which provides that in the event the United States could elect to take its royalties in money, the Secretary of the Interior reserves the right to approve or disapprove the lessees' sales contracts for the disposition of oil and gas. It is said that this clause was inserted in the lease for the obvious purpose of permitting the United States to insist upon the lessee procuring a fair price for its oil. But by the same token, Continental argues, the lease discloses that it was contemplated that when the best possible sales contract had been procured, the Government must be satisfied with royalty settlements on that basis. It is argued that section 2(d) serves no useful purpose other than to protect the United States in this manner and its insertion in the lease is unmistakable evidence of the fact that the Secretary in promulgating this clause contemplated that royalty settlements would be made on the basis of the prices fixed by the sales contracts. 49 Our attention is called to the fact that the leases also contain other provisions for the protection of the Government. These include the provision that permits the Government to take its royalties in kind, in which case the Secretary is directed by section 36 of the Act, Title 30 U.S.C.A. § 192, to offer royalty oil for sale. This, it is argued, is a provision designed to protect the Government's royalty by providing a special means of determining the value of the royalty oil, namely, by sales, and Continental contends that the Secretary is limited in what he may do to protect the Government's royalty interests to procedures specified in the lease and in the Act. Continental therefore asserts that at least so far as it is concerned, it is immaterial and irrelevant whether the prices posted by the integrated companies were discriminatory or arbitrary and that Continental may not be charged with payment on any basis other than that at which it sold its oil under contracts which had been filed with the Secretary and which the Secretary did not disapprove. 50 We think the record indicates that when the leases were issued a situation of the kind which has here developed was not within the contemplation of the parties. So far as the Secretary is concerned, he doubtless considered that in reserving the right to approve or disapprove the proposed sales contracts he had inserted in the lease adequate means of protecting the Government against the effect of sales of oil at improvident prices. But when he first began to make the effort to collect additional royalty payments on account of production in this field, initially by his abortive effort to fix a minimum value for oil, he found himself compelled to deal with a situation for which no express provision had been inserted in the contract. He then determined that as against Continental nothing could be accomplished by an outright disapproval of Continental's proposed sales. His demands therefore were that notwithstanding Continental might be receiving the contract prices on the sale of its oil, it make royalty settlements on some other basis. This basis the trial court has held is not the minimum value order of the Secretary, but rather the market value as determined by the court through comparison with values in other fields. 51 We have previously called attention to the dearth of exact specifications in the leases as to how the percentages stated shall be applied. There are plenty of references to (5%), (12 1/2%), and to other percentages, but in those immediate connections the lease suggest to one reading it the question (5% of what). 52 We have previously noted that the Leasing Act itself refers to royalty as a percentage (in amount or value of the production). We have also noted the references in the lease to the term (value) such as those in Section 2(c)3.5 53 We are therefore of the opinion that the trial court was right in its interpretation of the leases as requiring royalty to be based upon actual, true or market value of the oil.6 The circumstances here in which the non-integrated companies found themselves unable to sell for prices representing such values, but required nevertheless to account for royalty upon the basis of fair market values, have created a situation comparable to those which have sometimes arisen between parties to contracts who have asserted that their obligations have been altered or terminated through the operation of the doctrine of frustration by fortuitous circumstances. Cf. Williston on Contracts, Rev. Ed., Sec. 1951-1954. 54 We have then a contract which in terms obligates the lessee to pay a stated percentage of the value of the production. This is an undertaking which the lessee assumed without any express limitation or qualification. Whatever the percentage may be, the lessee must in any event pay a sum calculated with respect to the true value. 55 The question here is whether this unexpected difficulty in regard to the marketing of oil produced by the non-integrated companies operates as an implied limitation upon or termination of this absolute obligation. The payment of royalty at the rate required by the district court's judgment is not an impossibility. At most it can be said to involve greater expense and to yield less profit than the lessee initially contemplated. (A promise will not be discharged, however, because the performance promised in return has lost value on account of supervening fortuitous circumstances unless they nearly or quite completely destroy the purpose both parties to the bargain had in mind). Williston on Contracts, Rev. Ed. Sec. 1954, page 5481. 56 A similar question arose in the case of Lloyd v. Murphy, 25 Cal. 2d 48, 153 P.2d 47. In it the lessees leased certain premises for the purpose of conducting an automobile business, then vacated them and declined to pay further rent on the ground that government restrictions upon the automobile business during the period of the Second World War had operated as a commercial frustration of the lease and was an excuse for non-performance on the part of the lessee. In the course of an extensive discussion of the principles applicable to the defense of frustration, the court said, 25 Cal.2d at page 51, 153 P.2d at page 51: (Nor has defendant sustained the burden of proving that the value of the lease has been destroyed. The sale of automobiles was not made impossible or illegal but merely restricted and if governmental regulation does not entirely prohibit the business to be carried on in the leased premises but only limits or restricts it, thereby making it less profitable and more difficult to continue, the lease is not terminated or the lessee excused from further performance). 57 The leases here bore evidence of the Government's concern lest those operators who owned or controlled pipe lines might thereby depress the market for oil produced and sought to be sold by others. By Sec. 3(c) the Government reserved (the right to require the lessee, his assignees or beneficiary, if owner or operator of, or owner of a controlling interest in, any pipe line, or any company operating the same which may be operated accessible to the oil derived from lands under such lease, to accept and convey at reasonable rates and without discrimination the oil for the Government or of any citizen or company, not the owner of any pipe line, operating a lease or purchasing oil or gas under the provisions of this act). We do not suggest that there is evidence that Continental by availing itself of this reserved privilege would have avoided the hardship which the prices posted by the integrated companies placed upon it. Its significance is that it demonstrates that the problem of sales of oil at adequate prices was within the contemplation of the parties and that this was one of the risks which the lessees were obliged to take. Cf. Baetjer v. New England Alcohol Co., 319 Mass. 592, 66 N.E.2d 798, 803;7 Canadian Industrial Alcohol Co. v. Dunbar Molasses Co., 258 N.Y. 194, 198, 179 N.E. 383, 384, 80 A.L.R. 1173.8 58 We think that when the leases were made the lessees assumed, as a matter of course that they would encounter no difficulty in selling their oil for what it was worth, and the the Secretary likewise assumed that his right to approve or disapprove proposed sales contracts, or do demand delivery of royalty in kind, would furnish adequate protection for the Government. 59 We are unable to perceive how the inclusion of these provisions in the lease or their inadequacy in the situation in which the parties found themselves when it appeared that the market had been rigged, has operated as a restriction or limitation upon the obligation of the lessee to account for royalty on the basis of the true values of the oil. Continental is not the first signatory of a contract to find that unanticipated subsequent events operated to lessen the value of its bargain. 60 5. Does the Evidence Sustain the Court's Finding of the Value of the Royalty Oil? 61 On the part of the United States it is contended that while it was proper for the district court to compare Santa Fe Springs oil with Kettleman Hills oil for the purpose of arriving at the market value of the latter, that the cost of the transportation factor should have been arrived at by comparing the cost of transportation of the two oils to shipping points at tidewater. The Government argues that during the period in issue, the California fields produced more crude oil than was consumed in the domestic areas tributory to them; that substantial amounts had to be exported, and that it was in the export or offshore market that the two oils met in close competition. Kettleman Hills was connected with tidewater by pipe line systems to Estero Bay, to Avila and to Monterey Bay. Santa Fe Springs had transportation by pipe line to San Pedro Bay. The Government points to evidence in the record tending to show that the difference in cost for such transportation from the two fields to market at tidewater was substantially two cents per barrel. From this the Government concludes that this two cents represents the difference in firm market value between the two crudes. The Government contends that what the trial court did in arriving at the 10cents differential was to calculate the difference between the cost of transporting Kettleman Hills oil and the cost of transporting Santa Fe Springs oil to the Los Angeles market. Since the Los Angeles market was not a normal market for Kettleman Hills oil, which was near the San Francisco Bay refineries, the Government argues that the trial court in finding a 10cents differential has adopted an erroneous concept of (phantom freight) and (Los Angeles plus), because the figures are calculated upon the assumption of a transportation which normally would not be made. 62 We think that the Government's argument is based upon a mistaken assumption as to what the trial court actually did. We find no evidence in the findings or in the opinion that the court based its finding of transportation differential upon the assumption that Kettleman Hills oil would be transported to the Los Angeles basin. In its opinion the court said, 73 F.Supp. at page 262: (In arriving at the market value for Kettleman Hills oil, however, an allowance must be made for the difference in transportation costs. Here the court has recourse to the computations, and to the testimony of the witness McCammon for the cost differential between the two fields. The transportation costs were ten cents per barrel less at Santa Fe Springs then at Kettleman Hills. The court, therefore, concludes that the market value of Kettleman Hills crude oil from July 1, 1931, to August 29, 1935, was gravity for gravity the same as that of Santa Fe Springs, less ten cents per barrel. 63 The evidence indicated that the normal market for Kettleman Hills oil was in the San Francisco Bay area with transportation via pipe line and tanker. In our opinion it was proper for the court to consider the difference between the cost of transportation of Santa Fe Springs oil to Torrance, (near Los Angeles), and of Kettleman Hills oil to Richmond (on San Francisco Bay). 64 It is noted that the court referred to McCammon's computations in arriving at that cost differential. If the McCammon computations are not competent evidence as against the appellants upon this point because of the second-hand character of McCammon's information, so far as the United States is concerned, it is in no position to question the showing in these computations of a 10cents cost differential when the Government offered them as evidence for this very purpose. 65 We think the record does not disclose that the case was tried upon the theory that Kettleman crude and Santa Fe Springs crude actually met a competitive market at these tidewater points; but even if there were substantial evidence of movements of that character which would have sustained the finding of fact upon the Government's present theory, we think the Government's argument under this specification of error is essentially an attempt to re-argue the facts which it was the duty of the trial court to resolve, and whose findings it is our duty not to disturb in the absence of a showing that they were clearly erroneous. 66 Appellants's briefs contain the same error we find in the Government's briefs on this point in assuming that the court based its determination of a differential upon the assumption that Kettleman Hills oil would be transported to the Los Angeles basin. Appellants undertook to show that the pipe line charge from Kettleman Hills to Los Angeles was 16cents per barrel, which, added to a one cent gathering charge and 64/100ths of a cent tax, would make a total of 17.64cents. It is argued that this is not shown to represent the differential, but that this calculation overlooks the fact that a similar computation of transportation costs from Santa Fe Springs would amount to 6.24cents per barrel, the difference even on these figures being 11.04cents. However, the court was not obliged to base its finding of fact upon any single calculation. There was plenty of evidence elsewhere in the massive record before the court to indicate a differential of even less than 10cents. Samples of such evidence may be found not only in the evidence as to differential in transportation for offshore shipments of oil for sales abroad, upon which the Government has placed so much emphasis, but also in General Petroleum's own exhibit No. 7 which contains a sheet bearing date December 6, 1935, disclosing differentials in transportation, storage and refining costs between Santa Fe Springs and Kettleman. This shows book costs for Santa Fe Springs oil of 10.55cents per barrel and for Kettleman Hills oil of 18.61cents, or a difference of 8.06cents. 67 We find no merit in appellant's argument that the court was not justified in calculating the value of the higher oil gravities at Kettleman Hills by a process of extrapolation. There was substantial evidence that the value of the marketable constituent elements of crude generally increases in direct proportion to the gravities of the oil. Likewise without merit we think the argument that General suffered a disadvantage in the practice of the manager for Kenda in so mixing the oil from Kettleman Hills products as to take advantage of the breaks in the posted price brackets. It is asserted that from thus delivering oil which would barely top the breaking point, the result was that by reason of evaporation and other losses the oil on reaching its destination had dropped to a lower gravity bracket to the disadvantage of General. We take it that there is no dispute that notwithstanding the sketchy character of the leases, royalties were to be calculated at values at the wells, not at the pipe line destination, and we think the court was not obliged to take into consideration the factors here mentioned. 68 It is our opinion that the argument on the part of appellants with respect to value is, like that of the Government, but an effort to reargue to us questions which were properly for the decision of the trial judge whose findings we think were abundantly supported by the evidence in the record. 69 6. The Demand for Royalties Based Upon the Secretary's Orders Fixing the Values of Gas and Casing-Head Gasoline. 70 One of the orders here in question is contained in a letter dated June 4, 1931, reciting that settlements on gas in California had been (fixed at 5cents per 1000 cubic feet and on natural-gas gasoline in Kettleman Hills at 6cents below the current published San Francisco price for gasoline in tank wagon lots, exclusive of tax). This order, as it related to natural-gas gasoline, was modified by order of June 23, 1931, which provided that effective July 1, 1931, the minimum price per gallon of natural gas gasoline in the field where produced shall be based on the average service station price, exclusive of tax, for gasoline of standard quality at Standard and Shell stations, in the metropolitan area of San Francisco and Los Angeles, as determined daily in accordance with the formula set out in italics, 73 F.Supp. at pages 232 and 233 of the district court's opinion. 71 On June 7, 1937, the Secretary directed that royalties be computed 'on natural gas, including its derivative products' by one of two alternative methods described in the letter, 'whichever may result in the higher valuation'. This is referred to as the 'net realization order of 1937'. As pointed out in the trial court's opinion, 73 F.Supp. at page 255, the 1926 Regulations, Sec. 4(d), had allowed the lessee two-thirds of the natural gas gasoline extracted from gas as an arbitrary allowance for the cost of manufacture; and the Government had collected its royalty on the value of the remaining one-third. Prior to June 7, 1937, the lessees had taken advantage of the two-thirds allowance, but had refused to recognize as valid the Secretary's determination of the value of the natural-gas gasoline. In the order in question the Secretary found that the two-thirds one-third allocation was 'palpably erroneous', because of improved processing equipment and methods. Accordingly, it was ordered that the lessee 'should be required to pay his natural gas royalties upon the basis of the actual money value of such gas to him in the field whenever such actual values exceed valuations arrived at by using in the Sec. 4(d) formula the prices for dry gas, casing-head gasoline and drip gasoline as fixed by the Secretary of the Interior'. Accordingly the administrative officials were required to charge the lessees 'royalty either on the basis of the combined value of such products, as measured by the lessee's gross field realization less his actual extraction cost (net field realization value), or on the basis of section 4(d) formula, whichever may result in the higher valuation'. 72 Appellants have attacked these gas and casing-head gasoline orders on the grounds (1) that the Mineral Leasing Act did not either at all or in a valid manner authorize the insertion in the leases of a provision authorizing the Secretary to fix the values of gas and casing-head gasoline for royalty purposes. (2) That even if such power were granted to the Secretary, he could exercise it only after notice and hearing and compliance with other requirements of procedural due process. (3) That the orders, as made, were unauthorized because unreasonable, arbitrary, capricious and inequitable. (4) That the net realization order was not a determination of value but a bare attempt to modify the terms of the existing leases. 73 The trial judge considered and discussed the arguments here made in that portion of his opinion beginning with the last paragraph on page 249 through page 258 (73 F. Supp. 249-258). The court upheld the validity of the net realization order insofar as it related to production after that date, but declined to sustain it with respect to natural gas produced prior to the date of the order. The Government attacks this limitation insofar as it applies to these appellants on the ground that when the order was made these lessees had not complied with the previous orders of the Secretary and had not paid the royalties as billed. The Government therefore argues that since the accounts remained open the Secretary had the right to recompute and rebill for the prior production for which settlement had not been made in accordance with the previous bills. 74 We find no reason to add to the length of this opinion by a repetition of what the trial judge has so ably expressed in this portion of his opinion. As to whether the Secretary was authorized to insert a reservation of the power to determine and fix such values, we think the question is answered on the authority of United States v. Ohio Oil Co., 10 Cir., 163 F.2d 633, 640.9 As for the argument that the Act does not contain sufficient specification of standards for the determination of such values, we agree with what the trial court has said, and we also think that for the reason stated in United States v. San Francisco, 310 U.S. 16, 29, 60 S. Ct. 749, 756, 84 L. Ed. 1050, as the lessees have accepted leases expressly reserving this right to the Secretary, they are not in a position to question the sufficiency of the Act on this ground.10 75 The leases which General and Continental have signed and accepted contain the express delegation to the Secretary of the power to fix the value of gas for royalty purposes. Similar contract provisions have been enforced by the courts. (See cases in footnote, United States v. Beuttas, 324 U.S. 768, at page 772, 65 S. Ct. 1000, 89 L. Ed. 1354. In this situation there is no rule requiring notice or hearing as prerequisite to the order, but the determination is valid in the absence of fraud or mistake so gross as to imply bad faith. It may well be said that the net realization order was not only an exercise of the Secretary's reserved power to determine the value, but that it was altogether reasonable for him to conclude that the gas was worth what the lessees were able to realize therefrom. 76 In our opinion the net realization order was made in an effort to carry out the Secretary's duty to collect royalty on the basis of value, and it was a proper exercise of the Secretary's reserved power to determine value for royalty purposes. 77 As for the Government's claim that the Secretary might recompute the gas royalties owing where lessees had not paid the bills previously rendered, in other words, make his June 7, 1937, order retroactive, we think the court correctly construed the provision of the lease permitting the Secretary to fix the value of gas for royalty purposes as operating prospectively only. Statutes are always so construed. Cf. Neild v. District of Columbia, 71 App. D.C. 306, 110 F.2d 246, 254. We think that a contract provision as extraordinary as is this authorization to fix values, should no less be interpreted as having prospective operation only. 78 7. Interest. 79 The court's conclusion as to interest was as follows: (Plaintiff is entitled to recover from the several defendants interest by way of damages for delay in payment, the same to be computed on the following bases: (1) Because of delay in filing the action plaintiff is allowed no interest prior to the date of suit. (2) Interest is allowed against all of the defendants * * * from date of suit to the date of judgment on plaintiff's recoveries on the gas and gasoline accounts. (3) Interest is allowed against the integrated defendants from the date of suit to the date of judgment on plaintiff's recoveries on the crude oil accounts. (4) No interest is allowed against the non-integrated defendants upon plaintiff's recoveries on the crude oil accounts as it does not appear that such non-integrated defendants had the use of the money upon which interest is sought. * * * (6) The rate of interest allowed prior to judgment is fixed at 4% per annum as the Court find that that rate is fairly compensatory). 80 The parties are in disagreement as to what law governs an award of interest here. General and Continental assert that California law controls, and for this cite Mason v. United States, 260 U.S. 545, 43 S. Ct. 200, 67 L. Ed. 396; Jeems Bayou Club v. United States, 260 U.S. 561, 43 S. Ct. 205, 67 L. Ed. 402 and Eustis v. Martin, 5 Cir., 122 F.2d 648. Proceeding from this premise they urge that the rule laid down in Lineman v. Schmid, 32 Cal. 2d 204, 195 P.1d 408, 412, 4 A.L.R. 2d 1380, governs here. The rule of that case, construing Civil Code, Sec. 3287,11 is that 'interest is not allowable where the damages depend upon no fixed standard and cannot be made certain except by accord, verdict or decree'. Accordingly, it was held that where the damages were not 'capable of ascertainment by calculation', or could not 'be determined by reference to well-established market values', but were based 'on a value which (the court) was compelled to select from conflicting evidence relating to the factors of cost, carrying charges and profit', it was improper to add interest. Such, it is said, is the situation. 81 On the part of the Government it is said that the state statute or local common law does not govern. We are asked to examine Royal Indemnity Co. v. United States, 313 U.S. 289, 296, 61 S. Ct. 995, 997, 85 L. Ed. 1361, where it was said: 'But the rule governing the interest to be recovered as damages for delayed payment of a contractual obligation to the United States is not controlled by state statute or local common law. In the absence of an applicable federal statute it is for the federal courts to determine, according to their own criteria, the appropriate measure of damage, expressed in terms of interest, for non-payment of the amount found to be due'. 82 As far as the sums recovered on account of royalties on gas and casing-head gasoline are concerned, since the amounts found owing were fixed and ascertainable, we think the award of interest was justified under either rule. 83 As for the interest allowed against General on the crude oil account recoveries, we think that under the California rule interest would not be recoverable. But we think that rule not obligatory here for the reasons stated in Royal Indemnity Co. v. United States, supra. 84 It is our view that it was for the trial court to determine as a question of fact the amount of the Government's loss on this item. We think it was a situation such as that discussed in Miller v. Robertson, 266 U.S. 243, at page 258, 45 S. Ct. 73, at page 78, 69 L. Ed. 265, where the court said: 'Generally, interest is not allowed upon unliquidated damages. * * * But when necessary in order to arrive at fair compensation, the court in the exercise of a sound discretion may include interest or its equivalent as an element of damages'. 85 The rule permitting an award of interest 'in the discretion of the court' is one of general recognition. Restatement of the Law of Contracts, Sec. 337(b). Such a discretion, in a proper case, may be that of judge or of jury, but like other questions of the amount of damages, it is a question for the trial court, and it is its discretion that has been exercised here. We are not permitted to disturb it, for we think the court might properly conclude that the Government could not otherwise be made whole in respect to what it lost on account of deficiencies in the payments for crude oil royalties. 86 General also complains of unconscionable delay in bringing suit. But in this contention it has prevailed, for the court awarded no interest for any period prior to suit. Although the Government assigns error in respect to such action, we find no fault with what the court did in this respect. 87 The judgment is affirmed. 1 Natural-gas gasoline, extracted from gas, is also known and referred to in the record as 'casing-head gasoline' 2 In 1931 all of the lessees, with the approval of the Government given pursuant to the Act of July 3, 1930, 46 Stat. 1007, 30 U.S.C.A. §§ 184, 226, organized the Kettleman North Dome Association; (referred to in the testimony as 'Kenda'), to operate the Government leases on Kettleman North Dome as a unit, and divide the production among the members in proportion to their acreage holdings. Thereafter each lessee paid royalties on its share of the oil and gas produced by the association from the whole area without regard to the production from the lessee's own lease. It is conceded that the creation and operation of this association did not alter or modify the rights or obligations of the parties under the leases 3 The following extracts are taken from McCammon's testimony: 'You understand, when I was trying to reconstruct these I was doing it with extremely fragmentary pieces of information. Apparently in this case none of the Valley prices were checked by the use of this Southern price, but, as I remember, I obtained that .2 cent figure from Mr. Allen who obtained it from his memory'. 'You did undertake, did you not, Mr. McCammon, to get the very best information that was available? A. That is correct 'Q. Such sources of information as were here available to you were used; Mr. McCammon, the company's records and the company's personnel were available to you as sources of information? A. Yes, sir. 'Q. You got the best information that you could from the company's records and the company's personnel? A. That is correct, and from my knowledge, and everything I could piece together, that is, I tried to reconstruct what may have been computed prior to these first schedules in the best way that I could. 'Q. The information which caused you to use 437 End Point Stock in making your computations instead of the 400 End Point Stock which was used subsequently, what was that information? A. I don't recall that, either, off-hand. 'Q. You must have obtained that from some source. A. I think so. 'Q. Do you know whether it was from a record, or from information furnished you by somebody else? A. I think it was from a record. 'Q. Where did you get your information relative to the deduction figure which you used? A. From Mr. Allen. 'Q. From Mr. Allen? A. That is correct. As I remember it, he had it right in his mind. Let me see, now. He had a figure for manufacturing 27 gravity Signal Hill which, as I recall it he said was 8.4, and then he had a formula which was-he remembered this: That he had-in fact, that 8.4 was made up of a certain fixed sum per barrel of crude, and the balance was variable for the quantity of 410 End Point Gasoline Stock in the crude, so that in determining the manufacturing deduction for each crude, why, we used that flat deduction per barrel, plus this variable, times the percentage of 410 End Point Stock that is shown on the first or third column there. 'Q. Was that formula contained in any record or memorandum? A. No. As a matter of fact, we went back into Mr. Allen's memory, and knowing what he knew the answer to be, why we attempted to recall the method of breaking down the 8.4 between the fixed portion per barrel of crude and the variable portion, and as a result of that we came up with these particular figures. 'Q. Mr. McCammon, I call your attention to the sheet containing tabulations which has been marked 2-A for Identification. I ask you to tell us the source of that paper. A. Well, it came from a file which is contained, I am not too sure where it did come from. I thought it had come from- I am sorry. Well, I don't know, I am not sure at the moment that I do know where it came from . I thought, in looking at it, it came from the Secretary's office, but it Doesn't have a tag on it. I am not sure whether it came from there or some other file; I couldn't tell you'. 4 'No reservation or objection militates against the effect of the emphasized sentence in the above-mentioned letter). 73 F. Supp. 247 5 'When paid in value such royalties shall be due and payable monthly on the 15th of each calendar month * * * ' 6 Many common forms of leases are so drawn as to make 'value' immaterial. Frequently the reference is to 'posted available market price'. or to 'published price offered by major oil companies', Summers, Oil and Gas, Vo. 3, p. 429, Vol. 7, pp. 28, 36, 68, Cf. Security First Nat. T. & S. Bk. v. Loftus, 129 Cal. App. 650, 19 P.2d 297. In Shamrock Oil & Gas Corporation v. Coffee, 5 Cir., 140 F.2d 409, the term 'market price', was held to refer to amounts actually paid in the same market, and not to mean 'market value', or 'fair market value' or 'reasonable worth' 7 'When the defendant contracted to take the molasses in its vessel it doubtless hoped for and may have expected the best, but it also knew the worst and, except for the limited protection of the 'Force Majeure' clause, took the risk' 8 'The inquiry is merely this, whether the continuance of a special group of circumstances appears from the terms of the contract, interpreted in the setting of the occasion, to have been a tacit or implied presupposition in the minds of the contracting parties, conditioning their belief in a continuing obligation'. Willston on Contracts, Sec. 1952, pp. 5472-5473 9 'The parties were free to contract with respect to the subject matter, and there is nothing in their agreement which we can say is at variance with the enabling legislation or repugnant to public policy) 10 'After passage of the Bill the City accepted the grant by formal ordinance, assented to all the conditions contained in the grant, constructed the required power and water facilities and up to date has utilized the rights, privileges and benefits granted by Congress. Now, the City seeks to retain the benefits of the Act while attacking the constitutionality of one of its important conditions.' 11 'Sec. 3287, Cal. Civ. Code, provides: 'Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt'	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/225863/	184 F.2d 836 50-2 USTC P 9479 PEOPLES FINANCE & THRIFT CO.v.COMMISSIONER OF INTERNAL REVENUE. No. 13230. United States Court of Appeals Fifth Circuit. Nov. 3, 1950. Needham A. Graham, Jr., Birmingham, Ala., for petitioner. Francis W. Sams, Ellis N. Slack, Lee A. Jackson, Special Assistants to Attorney General, Theron Lamar Caudle, Assistant Attorney General, Charles Oliphant, Chief Counsel, Rollin H. Transue, Special Attorney, Bureau of Internal Revenue, Washington, D.C., for respondent. Before McCORD, BORAH and RUSSELL, Circuit Judges. PER CURIAM. 1 We are of opinion the Tax Court correctly held that the amounts received by petitioner under certain health and accident insurance policies transferred to it for value constitute taxable income, and that they do not come within the purview of the exemption contained in Section 22(b)(5) of the Internal Revenue Code, Title 26 U.S.C.A. § 22(b)(5). 2 We find no merit in the contention that because the amounts involved were 'received through accident or health insurance' within the language of the statute, they must therefore be considered as 'Exclusions from gross income'. Such a construction would manifestly ignore the further statutory requirement that the amounts must be received 'as compensation for personal injuries or sickness'. Here, it becomes patent that petitioner did not receive the payments under these policies as compensation for any personal injury or sickness, but solely in partial satisfaction of an unpaid indebtedness. Petitioner was merely a transferee for value of the proceeds of the policies, and when the payments were made thereunder it was only recovering a portion of the debt owed to it and realizing a return on its investment in the policies. Moreover, the amounts received by it under the policies should be treated as income, for petitioner had charged the debt off as worthless in a prior tax year, and had taken a deduction for it at that time. See St. Louis Refrigerating & Cold Storage Co. v. United States, 8 Cir., 162 F.2d 394, 398. 3 We do not believe that in such cases Congress intended to extend the benefit of the exemption in this statute to the assignee or transferee for value of the benefits of health and accident insurance policies, but that the exemption was clearly intended to be applied only in those cases where the beneficiary of the policies has suffered some uncompensated loss or injury arising out of the incapacitation of the insured through 'personal injuries of sickness'. Cf. Durr Drug Co. v. United States, 5 Cir., 99 F.2d 757. 4 Affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2072172/	694 N.W.2d 877 (2005) IN RE A.Y.. No. 23292, 23298. Supreme Court of South Dakota. February 7, 2005. Affirmed (JAE).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4520538/	Order entered March 27, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00365-CR STEVEN WARE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1876179-R ORDER The State’s second motion for extension of time to file its brief is GRANTED. The clerk is directed to file the State’s brief submitted to the court of March 24, 2020. /s/ BILL WHITEHILL JUSTICE PRESIDING	01-03-2023	03-30-2020
https://www.courtlistener.com/api/rest/v3/opinions/2042372/	890 N.E.2d 1286 (2004) 349 Ill. App. 3d 1042 BARKAUSKAS v. BRILEY. No. 3-03-0786. Appellate Court of Illinois, Third District. July 29, 2004. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1053183/	IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE December 19, 2006 Session STATE OF TENNESSEE v. CHARLES STAN MARTIN Appeal from the Circuit Court for Sevier County No. 10470-II Richard R. Vance, Judge No. E2005-02155-CCA-R3-CD - Filed September 18, 2007 The defendant, Charles Stan Martin, was convicted by a Sevier County jury of one count of reckless homicide, a Class D felony, and received a four-year sentence to be served on probation. On appeal, the defendant contends that: (1) the evidence was not sufficient to support his conviction, (2) the reckless homicide statute is unconstitutional as applied to him, (3) the trial court erred in admitting evidence of a prior incident, (4) the trial court erred in failing to instruct the jury on an alibi defense, and (5) the trial court abused its discretion in denying him judicial diversion. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES CURWOOD WITT , JR., JJ., joined. Bryan E. Delius, Sevierville, Tennessee, and Richard L. Gaines, Knoxville, Tennessee, for the appellant, Charles Stanley Martin. Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James B. (Jimmy) Dunn, District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION On March 14, 2004, June Alexander fell to her death while riding the Hawk thrill ride at the Rockin Raceway amusement park in Pigeon Forge. The defendant was the general manager of Rockin Raceway and was responsible for maintenance of the Hawk. In September 2004, a Sevier County grand jury charged the defendant by presentment with second degree murder and reckless homicide.1 The state attempted to prove that the defendant attached a jumper wire to the electrical panel of the ride in order to bypass its safety restrictions. At the trial, the victim’s son, Cody Alexander, testified that he lived in Ashland City, Tennessee, and that he, his mother, and two aunts were visiting Pigeon Forge in March 2004 to celebrate his fifteenth birthday. He said that on March 14, 2004, the last day of their weekend trip, they visited Rockin Raceway because he wanted to ride the Hawk. He described the Hawk as a “gondola type ride” that “swings back and forth and goes upside down.” He, his mother, and one aunt sat next to each other in the front of the Hawk, with Cody sitting in the center and his mother sitting on his left side. He said the ride’s operator pressed a button that lowered the over-the- shoulder harnesses that were to secure them on the ride. The operator then came to them and pulled on their harnesses to check if they were secure. He said his aunt and mother had changed their minds about riding the Hawk and told the operator that they wanted to get off the ride. The operator told them that the machine would not release them from the ride until the ride had finished its course. Cody testified that the ride began and moved backwards so far and high that they were facing the ground. He said that when it started going forward again, his mother’s harness “jilted–moved a little bit.” His mother said she was “loose,” first in a low voice, and then loudly to his aunt. He said the ride came back down and the harness moved again. At a height of approximately sixty feet, the victim’s harness opened completely and the victim fell out of her seat. At that point, the ride made a 360 degree turn. Cody said he began screaming at the attendant to stop the ride. The ride soon stopped, and he and his aunt came back down to the ground. He said he was stuck in his seat for approximately thirty minutes because his harness would not release. He estimated that his aunt was stuck in her seat for about forty-five minutes. He said that after he was released from his seat, he ran to see his mother and learned that she was dead. He said the defendant had never expressed condolences to his family. Pigeon Forge Police Officer Mark Vance testified that he was called to Rockin Raceway around 12:15 p.m. on March 14, 2004. When he got there, he saw a young man and a woman sitting on the Hawk and the victim lying face-up on the ground. Another officer indicated that the victim was not responding, and Officer Vance went to assist the two people stuck on the ride. He said they were very upset and screaming. He said Rockin Raceway personnel were trying to get them off the ride, but he was not certain if the defendant was there. He said that after the two were released from the ride, he stayed with the young man who had been operating the ride. Police roped off the area around the ride with crime scene tape later in the afternoon and kept a log to document who came to the scene. Officer Vance said that only essential personnel should have been allowed on the scene after it was declared a crime scene. Sevier County paramedic Timothy Hughes testified that he attended to the victim on March 14, 2004, after her fall. He said officers were on the scene when he arrived at Rockin Raceway. The 1 Before the end of the trial, the court merged the two charges, as reckless homicide is a lesser-included offense of second degree murder. -2- victim was lying face-up on the ground. He said there was a large pool of blood above her head and that blood and cerebral spinal fluid were coming out of her ears. The victim had no pulse and was not breathing. Mr. Hughes said it appeared that she had hit her head on the compressor that was at the back of the ride. He believed that her death was instantaneous. He said he was with the victim for six or seven minutes and did not remember if the defendant was there. Sergeant Gary Campbell of the Pigeon Forge Police Department testified that he was called to Rockin Raceway after the victim’s fall. He said that by the time he arrived at the scene, the victim had been removed and the area was being treated as a crime scene. He said he took control of the crime scene log and started a crime scene log book for the day after the victim’s fall. He acknowledged that there were several names on the log that did not belong to law enforcement personnel, even though he was trained to limit the public’s access to a crime scene in order to preserve evidence. He said that the second day of the log included names of people representing Rockin Raceway and Zamperla, the manufacturer of the Hawk. John Hryhorchuk testified that in March 2004 he worked as an independent insurance adjuster and was hired by the insurance company that represented Rockin Raceway to investigate the victim’s fall. He said he went to Rockin Raceway in the evening and took photographs of the Hawk. He said he did not touch or lift anything from the ride or remove from or put anything on the ride. On cross-examination, he testified that he told the defendant not to talk to anyone until the defendant talked to counsel. Pigeon Forge Police Officer Scott Finney testified that he was at Rockin Raceway on March 15, 2004, the day after the victim’s death, in order to provide scene security. He said that others were also on the scene while he was there, including William Aldrich, who was with a consulting firm; the defendant; Thomas Sheehan, an attorney for Zamperla; Valerio Ferrari, a Zamperla representative; Detective Rene Kendall of the Pigeon Forge Police Department; and Jerry Lindsey, Rockin Raceway owner. Officer Finney’s job was “to make sure that nobody was in there that we didn’t have logged down, and that while they were in there that they didn’t touch anything.” Officer Finney testified that he was present when the electrical cabinet on the back of the Hawk was opened. He said he could see electrical wiring in the box. He said two wires–one red and one black–that were attached to other wires with alligator clips caught his eye. He explained that he formerly inspected rides as the “chief safety security officer” for Silver Dollar City amusement park and that he never saw alligator clips used in the electrical panels of rides there. He said that if he had seen such wiring in a ride he would have “shut the ride down.” The insulation of the wires to which the alligator clips were attached was peeled in order for the alligator clips to touch the copper wiring. He said he also saw in the electrical cabinet a cardboard box that contained, among other things, black wire and alligator clips. Officer Finney testified that he did not know how long the alligator clipped wires were in the electrical panel and did not know who put them there. He said that no fingerprints were taken from any wires. He said no one touched the inside of the electrical cabinet while he was there and that the cabinet was closed before he left the scene on March 15, 2004. -3- Officer Wayne Knight testified that he was an evidence technician for the Pigeon Forge Police Department. He said he went to Rockin Raceway on the morning of March 16, 2004, and that Detective Kendall was also there. He mentioned several people who were there in addition to law enforcement officers: Phil Castellano, a Zamperla technician; Niles Nimmo, an attorney for the victim’s family; Thomas Sheehan, an attorney for Zamperla; Jerry Aldrich,2 a consultant for Zamperla; Claude Wagner, a consultant for Rockin Raceway’s insurance company; and Donald Howell, an attorney for Rockin Raceway. Officer Knight took photographs while the electrical cabinet was examined and while Mr. Castellano removed components from it. The electrical panel consisted of numerous wires connected to various numbered circuits. A photograph of the electrical panel when it was first opened showed a red jumper wire and black jumper wire attached with alligator clips to other wires. Officer Knight spoke in detail about the placement of the black jumper wire: “It ha[d] been attached to a black wire that ha[d] been spliced open and that wire is labeled number 144 and the other end of the black jumper is attached to another black wire that ha[d] been spliced and that number is 145.” He said all the parties present had looked through the electrical panel. The next day, a test was performed on the ride, which Officer Knight videotaped. He said that once testing was complete, the ride was turned off, and he collected the black jumper wire as evidence. On cross-examination, Officer Knight testified that he never saw the defendant put a jumper wire in the Hawk’s electrical panel or perform any maintenance on the Hawk. He said that between March 14 and 17, 2004, representatives from Zamperla and Rockin Raceway had access to the ride. He acknowledged that he was trained to limit access to and movement within a crime scene to prevent alterations or destruction of evidence. He acknowledged that he did not seal off the electrical cabinet when he left the crime scene on March 15 or 16. He said that he did not take notes while Mr. Castellano modified the electrical panel and the ride, although he did take photographs and record a videotape. He discussed some of the changes that Mr. Castellano made to the ride during the investigation, including that he took panels off some seats on the ride, took top covers off the lap bars on the seats, and raised the operator panel onto a platform. He said that no one was told to wear gloves before touching any part of the machine and that Mr. Castellano did not wear gloves when opening the electrical cabinet. He said people, including Mr. Castellano, touched the black jumper wire and that no attempt was made to take fingerprints from the wire or from any other part of the electrical panel. He said he was unsure whether it would have been possible to get fingerprints off the wire and that it was not tested because of how small the surface area was. Officer Knight testified that he collected the black jumper wire as evidence because everyone present when the ride was examined had a reaction to the presence of that wire. He said he knew it was significant but did not know how. He said that after he left the scene on March 17, 2004, he returned briefly on March 18 and then on March 24, when Ed Pribonic, who was hired by the city of Pigeon Forge and assisted by city electrician Bill Bradley, investigated the Hawk. However, the ride was not turned on after it was shut down on March 17, and Mr. Pribonic did not conduct any investigations or tests while the ride had power. 2 Other witnesses referred to M r. Aldrich as “W illiam Aldrich.” -4- Bradley Burns testified that he was a seasonal employee of Rockin Raceway between March 1997 and August 2001 and that he was as an assistant manager there between August 2001 and September 2002. He was working at Rockin Raceway during the time that the Hawk arrived. He said that he sometimes operated the Hawk and that, at times, the lap bars came down but the ride did not move. At these times, an alarm on the ride would sound. Sometimes when this happened, people requested to get off the ride and demanded refunds. Mr. Burns described the Hawk’s seating and restraint system. He said the seats were lined in several rows with three to a row. When he pressed a button, the lap bars3 of each seat lowered. He said latches, or pins, were on the sides of the lap bars. These pins latched into holes on panels that were on the right and left sides of each seat. The holes into which the pins latched depended on the size of the rider. Before starting the ride, the operator was supposed to check that all lap bars were secure. He said that when an alarm sounded, he would check again that all lap bars were secure because the ride would not move if the lap bars were not all securely latched. He explained, “[If you had started [the ride] and the latches weren’t out, the platforms wouldn’t lower or anything. It wouldn’t do anything. It would just sit perfectly still.” If he discovered that the lap bars were secure on each seat, he would raise the lap bars, reset the ride, lower the bars again, and try to start the ride. He said that if he went through this procedure two or three times and the ride still did not work, he would inform the riders that they could ride another ride or get a refund. He said that if he could not get the Hawk to run, he would inform the defendant of the problem. He could not recall people opening panels to get the ride to work, although he saw Mike Stepp, an assistant manager, open a panel on the lap bars to wipe away moisture on the sensors. He said that he only saw the defendant work on the Hawk from a distance. Mr. Burns said that he had seen the ride’s instruction manual but that he never actually looked through the manual himself. He said he had seen the defendant and Mr. Stepp look at it. Mr. Burns testified on cross-examination that he never saw the defendant put a jumper wire in the Hawk’s electrical panel. He said he saw the defendant working in the motor area of the ride but not in the electrical area. He said his only interaction with the Hawk’s electrical system was flipping the breaker switch, which was located in the electrical panel. He said that whoever was operating the Hawk at closing time was responsible for making sure it was shut down each night and that whoever operated it in the morning would make sure it was turned on. He said different people turned the ride on and off. Mr. Burns said he saw the Hawk shortly after it was set up and saw damage to the platform that resulted from a malfunction. He said he remembered that a lady’s foot was injured soon after the ride was first set up due to problems with the platform. He was present when a “push bar” was installed on the ride to prevent people’s feet from being caught in the platform. Mr. Burns described the defendant as a “great employer” who was “more than fair to all of the employees.” He said the defendant exhibited a great deal of concern for the safety of the Hawk 3 Several witnesses referred to the seat restraints or harnesses as “lap bars.” In the summary of the facts, we use the term that the witness testifying used. -5- and another ride, called the Rip Line, because those two rides involved more safety concerns than other rides at Rockin Raceway. He said that when there was a problem with a ride, the defendant would check the ride and instruct employees not to operate the ride or sell tickets for it until it was fixed. There were times when the Hawk was shut down for two to three days at a time. He said he never saw the defendant take “shortcuts” relating to the rides and that the only modification he was aware the defendant ever made to a ride was once removing the air filter from a go-cart. He said the defendant expressed concern when he noticed that one go-cart was significantly faster or slower than the others, as the defendant said this created a dangerous situation. He said that the defendant was very generous and that he had no reason to believe the defendant was more concerned with selling tickets than with the safety of the Hawk. Edward Pribonic, a mechanical engineer, testified as an expert in amusement ride safety. He was contacted by Detective Rene Kendall to investigate the Hawk in March 2004, following the victim’s death. He described the ride as follows: “The ride[] consists of one long boom . . . . At the upper end is the counterweight, at the lower end are 24 passenger seats. It’s hinged in the center, or has an axle in the center, and it’s motor driven and it rotates clockwise and counterclockwise.” He said that the “passenger gondolas” consisted of twenty-four seats in rows of three and that the ride had an “over-the-shoulder restraint mechanism” for each seat. He explained that the ride was designed to ensure that each passenger was securely restrained through a system of three locking pins on each restraint, one located behind the headrest and one on each side of the lap bar. These pins locked into access holes and sent electronic signals to the computer when they were properly secured. Mr. Pribonic said that if the ride were “configured as manufactured,” it would not run if any of the three pins on any seat were not properly positioned and the proper signals were not sent to the ride’s computer. Mr. Pribonic testified that he examined the Hawk at Rockin Raceway on March 24, 2004, with the assistance of Pigeon Forge electrician Bill Bradley. He said he examined the pins and the electronic switches on the seat from which the victim fell and that all were functioning. He said he looked at the electrical panel, which was open, and saw a red jumper wire attached to two other wires, which he thought was “highly unusual.” The red jumper wire was attached to wires numbered 126 and 146. He said he had never seen such a jumper wire in any ride he had ever inspected or worked on during his career. He said he also saw that some of the insulation was removed from several wires, including two wires that were next to each other, numbered 144 and 145. He was informed that another jumper wire was found connecting those two wires and was removed. He also saw some loose material and a cardboard box filled with paper and wires, which indicated to him that “someone was apparently using the electrical cabinet as a storage location.” He said he also saw in the electrical cabinet a yellow jumper wire attached to another wire on one end with electrical tape. Mr. Pribonic testified that he was asked by the Pigeon Forge Police Department to determine the probable cause of the victim’s fall. He said he determined that a connection between wires numbered 144 and 145 would bypass the “entire ride restraint system.” He said that when a jumper wire connected those two circuits, the seventy-two lap bar safety switches–three on each of the -6- twenty-four seats–became useless and no longer had any control over the operation of the ride. Thus, the ride would run even if one of the pins was not properly positioned and the switch did not send the appropriate signal to the computer. He said Mr. Burns’ testimony that the ride sometimes would not operate while he was working at Rockin Raceway indicated that the safety system was not bypassed at that time. He also said that, after speaking with Ken Mace, who nearly fell out of his seat on the Hawk in July 2003, he thought that the restraint safety system was bypassed at that time. He said he “firmly believed” this because if the safety system were functioning properly, two things would have prevented the incident: (1) the “ride would never have left the station” if Mr. Mace was not secured in his seat; and (2) if some kind of force pulled the pins out of their secured position, the ride would have shut down immediately. Mr. Pribonic testified that it was “absolutely not” standard for a ride to have a jumper wire with alligator clips in its electric panel and that he was of the opinion that the black jumper wire was purposefully placed on wires 144 and 145. On cross-examination, Mr. Pribonic testified that he did not know who put the jumper wire on the ride. He acknowledged that he was a member of the Amusement Industries Manufacturers and Suppliers International and that Zamperla, the Hawk’s manufacturer, was also a member of that organization. He said he never saw the black jumper wire on the electrical panel because it was removed by the time he arrived at the scene. He also acknowledged that he did not turn on the ride during his inspection of it. Although he said he did not initially intend to power the ride, he admitted that he tried but was unable to do so. He said that the ride was the only Hawk 24 trailer-mounted ride in existence and that he was not able to look at any other ride that operated in the same fashion. He said he reached his conclusions by reviewing drawings, the ride’s manual, other documents provided by the manufacturer, and witness statements relayed to him by Detective Kendall. He said he believed the ride’s manual to be well-written and reliable. He said he was not an electrical engineer but consulted with one to confirm his conclusions. Mr. Pribonic acknowledged that the Hawk had other safety systems in addition to the restraint safety system. For instance, the ride’s platform had switches designed to ensure that it was completely lowered before the ride started. He said he reviewed only the restraint system and not the platform safety system. He said he learned while inspecting the ride that someone had been injured because the platform malfunctioned. He said he did not test the emergency stop button, the “go station button,” or the air cylinders because to do so would have required the ride to be in operation. He said he did test the springs and switches attached to the pins on the victim’s seat and determined that they were operating effectively. He admitted that the diagram he used during his direct testimony was simplified and that each seat actually had four switches, not three. He said the fourth switch indicated the position of the lap bar. He said that if a person were too large to allow the restraint to be in secure position, the fourth switch would not send a permissive signal to the computer system and the ride would not run. He said he determined that the fourth switch was not bypassed by the black jumper wire and was not directly involved in the victim’s fall. Mr. Pribonic acknowledged that he cited in his report that operator error was also a cause of the victim’s fall because the operator did not properly check the victim to ensure that her restraint was secure. He said, however, that operator error would not have caused the victim’s death if the -7- safety system had not been bypassed. He acknowledged that the Hawk was set up at Rockin Raceway by Phil Castellano within two days and that he may have earlier said that it should take at least four days to set up the ride. He said that, generally, it would be unacceptable to spend only thirty minutes training someone on how to operate the ride. He also acknowledged that the Hawk’s manual appeared to have been written after the ride was already at Pigeon Forge and that normally, a ride should be delivered with its manual. Bill Bradley testified that he worked for the city of Pigeon Forge as an electrician and that he assisted Ed Pribonic’s examination of the Hawk at Rockin Raceway. He said he used a volt ohm meter to test whether the electronic switches on the victim’s seat were functioning and determined that they were. He said he also tested the black jumper wire that was in the possession of police and determined that it was also functional. He said that he opened the electrical box and attempted to turn on the power for the ride but that “the main breaker was tripped.” He said that he tried to reset the breaker three times but that the ride still would not operate. He testified that Mr. Pribonic wanted the ride’s power turned on but that after he was unable to do so, Mr. Pribonic said they would test the ride without power. Phil Castellano testified that he lived in New Jersey and worked for Zamperla, Inc. as a Field Service Manager. He said part of his duties involved setting up new rides, performing repairs and troubleshooting in the field, and providing technical support over the phone. He came to Pigeon Forge on March 4, 1998, to set up the Hawk at Rockin Raceway. He said that he was assisted with the set-up by the defendant and four or five other Rockin Raceway personnel and that they completed the set-up in less than one day. He said that the electrical system was involved in the set-up only to the extent that he had to run large cables into the electrical cabinet and to turn on a “set up key switch” to allow the ride to set up. He said the ride was assembled three times before it came to Pigeon Forge, once in Italy and twice at trade shows in Florida. He said he spent March 5 and 6, 1998, operating the ride and training Rockin Raceway personnel. He left on March 6 but came back in October 1998 to repair the hydraulic lifting platform of the Hawk. He said he came back again in July 2000 because of a problem with the Hawk’s motor. He said he identified the problem in July 2000 as a broken coupler that joined the encoder to the motor. He said that he temporarily fixed the problem by installing a rubber hose but that he ordered a replacement coupler to be shipped to Rockin Raceway the next day. He said he used this temporary solution because the defendant wanted to keep the ride in operation. He said he instructed the defendant to install the replacement part when it arrived. However, when Mr. Castellano returned to Rockin Raceway in March 2004, following the victim’s death, he saw that the replacement part was still in its package and that the temporary hose was still affixed to the motor. He said that by the second time he visited Rockin Raceway to make repairs, in July 2000, the Hawk was no longer under warranty by Zamperla. Mr. Castellano testified that after July 2000, he did not come to Rockin Raceway again until March 16, 2004, during the investigation of the victim’s death. He said that the electrical cabinet was opened on March 15, before he arrived. He said he saw red and black jumper wires in the electrical cabinet that were not there when he brought the ride to Pigeon Forge. He said that the red jumper wire connected wires numbered 146 and 126 and that the black jumper wire connected wires -8- numbered 144 and 145. He said he performed a series of tests in the morning of March 17, 2004, to determine what effect the jumper wires had. One test involved using a metal ruler to block the access holes for the pins on the side of the lap bar of a seat, to prevent the pins from being properly secured. Mr. Castellano said that, normally, the ride should not start in this condition. However, he said that with the black jumper wire connected, the ride started and went through a complete cycle. He conducted another test in which the lap bar of one seat was raised so that it was not in secure locking position and the locking pin behind the headrest of the seat was not properly secured. He said the ride should not be able to start in this unsafe condition but that with the black jumper wire attached, it did. He said he removed the black jumper wire from the electrical cabinet and tried to start the ride while in an unsafe position but that it did not start. He said he also tested the ride’s emergency stop button. He said that the button worked but that the brakes were either worn out or out of adjustment because they did not stop the ride as fast as they should have. Mr. Castellano also identified the contents of a cardboard box found in the electrical cabinet, which included a vise grip; the package of a replacement valve sent to Rockin Raceway that was dated May 12, 2000; a module, a device that allowed the main circuit breaker of the Hawk to be turned off and on from outside the electrical cabinet; some fuses and other “small parts”; and “alligator clip jumpers,” one of which looked identical to the black jumper wire that was connecting wires 144 and 145 on the electrical panel. On cross-examination, Mr. Castellano acknowledged that the Hawk’s manual given to Rockin Raceway was dated after the ride arrived at the park. He said it was possible to train someone to operate the Hawk in thirty to forty-five minutes. He said that he trained the defendant and that the defendant was responsible for training other personnel. He admitted that he told the defendant that only one person was needed to operate the ride, although the manual said that two people should operate the ride at all times. He said he became aware not long after he set up the ride that the Hawk’s platform was malfunctioning and that a lady’s foot was injured by it. He also acknowledged a letter he wrote to the defendant mentioning a problem involving vibrations in the motor of the ride and a problem with the “go station.” He admitted that the electrical panel contained a red wire that was installed by Zamperla in Italy and that eliminated the gate sensor switch. He said that gate switches are not used in the United States and, thus, it was not built in the ride even though it was in the design. He noted, however, that this red wire was not attached to others using alligator clips and did not involve splicing other wires, as did the jumper wires connecting wires 144 and 145 and wires 126 and 146. Mr. Castellano testified that he did not recall whether he tried to operate the ride without the black jumper wire but with all lap bars securely in place. The video of the tests done on March 17, 2004, did not show that he did. He admitted that there was an alarm to indicate if the brakes were not functioning properly, but he could not remember if he heard or saw this alarm during his tests on March 17. He said that Zamperla was a major contributor of rides at many carnivals and parks in the United States, that they made about 100 different varieties of rides, and that many of their rides could be found in Sevier County, including at Dollywood. He acknowledged that Zamperla had a financial incentive to ensure that they did not get a bad reputation in Sevier County. He said, however, that it was not in Zamperla’s interests to bypass the critical safety systems of its rides. -9- Pigeon Forge Police Detective Rene Kendall testified that he was the lead investigator of the victim’s death. He said that after he arrived on the scene for the first time on March 14, 2004, he spoke to the defendant who informed Detective Kendall that he was the general manager of Rockin Raceway. The defendant said he performed maintenance on the ride but did not have a maintenance log. Upon Detective Kendall’s questions about the defendant’s qualifications, the defendant said that he was not a certified mechanic but that the ride was failsafe and that anyone could run it. Detective Kendall testified that although he did not initially believe a crime had been committed, they treated the area around the Hawk as a crime scene until further investigation. He and other officers secured the scene by questioning people and making sure only authorized people were there. He said that officers guarded the area over a twenty-four-hour period. Detective Kendall returned to the scene on the morning of March 15, along with Officer Scott Finney, William Aldrich, Tom Sheehan, Valerio Ferrari, and the defendant. While there, the group looked at the Hawk’s electrical panel, and Detective Kendall said two jumper wires caught his eye. He said that no one touched the jumper wires at that time and that the defendant did not say anything or express any surprise about the presence of the wires. Detective Kendall said that before they made any alterations to the ride, they wanted to consult with someone who was “intimately familiar” with it. He said Mr. Sheehan, the attorney for Zamperla, contacted Mr. Castellano, who arrived in Pigeon Forge on March 16, 2004. On March 16, Detective Kendall was present at Rockin Raceway with Mr. Castellano and other representatives from Zamperla, Rockin Raceway, and the victim’s family. He said that they looked at the electrical panel again but that no one altered anything on the machine until the next day, when tests were performed and a videotape was made. Detective Kendall testified that he met with the defendant on August 14, 2004, at the Pigeon Forge Police Department. He said the defendant told him that Mr. Castellano and another technician from Zamperla performed maintenance on the platform soon after Rockin Raceway obtained the Hawk and that Mr. Castellano had rewired the electrical panel to nullify the gate safety function. The defendant told Detective Kendall that Mr. Castellano also returned to Rockin Raceway one time after the Hawk’s warranty had expired to repair a broken coupler on the ride. Detective Kendall said the defendant told him that either the defendant or Mike Stepp “did greasing of the rides” and that the ride operators were responsible for turning on the machine each day. The defendant said David Webb, who was the Hawk’s operator at the time the victim fell, was competent to run the ride. The defendant told Detective Kendall that he had instructed Mr. Webb how to turn the ride off if someone wanted to get off it. Detective Kendall testified that the defendant denied having any knowledge of a previous incident involving someone nearly falling out of the Hawk. He said the defendant said he was aware of an incident in July 2003 in which a large man had ridden the ride without having all the pins on his lap bar secured. Detective Kendall said the defendant told him that if one safety pin was secure, the ride would run even if another safety pin was not secure as long as the insecure pin was “close enough” to the hole that was supposed to secure it. Detective Kendall asked the defendant about the red and black jumper wires. He said the defendant told him that he had never seen the jumper wires. The defendant said he only opened the electrical cabinet as necessary and that the last time he opened -10- the electrical cabinet was about six weeks before the victim’s death. Detective Kendall also spoke with the defendant in September 2004, at which time he outlined the investigation to the defendant. The defendant again denied putting the jumper wires on the electrical panel, although he acknowledged that only he or someone from Zamperla could have done it. He said that he could not recall seeing the jumper wires on the machine but that Mr. Castellano must have put them there when he last worked on the ride in 2000. After this interview, the defendant prepared a written statement for Detective Kendall, which only outlined what the defendant did and observed after being notified of the victim’s death. On cross-examination, Detective Kendall testified that the defendant never confessed to putting the jumper wires in the electrical panel. He said he never interrogated Zamperla representatives, including Mr. Castellano, about the origins of the jumper wires. He said he also never investigated Zamperla’s rewiring of the panel to eliminate the safety gate function or the platform problems. He acknowledged that Mr. Castellano did not volunteer information about past problems with the ride or the work he had done on it. Detective Kendall said he contacted Ed Pribonic after being referred to him by Robbie Fox, the security director of Dollywood. He said he accompanied Mr. Pribonic when he performed tests on the Hawk on March 26, 2004, but did not take notes or record a video. He confirmed that Mr. Pribonic did not turn on the ride while testing it. Detective Kendall recalled seeing the defendant at Rockin Raceway on March 16, 2004, but said the defendant did not come to the scene. He said he did not recall seeing the defendant on March 17. He said he would have allowed the defendant on the scene. He said that after Mr. Pribonic’s investigation of the Hawk on March 26, the ride was released to the defendant with the black jumper wire removed from it. Judy Chance, a former employee of Rockin Raceway, testified that she was working in the ticket booth on March 14, 2004. She said that she called the defendant after the victim fell that day and that the defendant arrived a short time later and immediately tried to release the victim’s family members who were stuck on the ride. She said that during her time working at Rockin Raceway, the Hawk “would not work a lot of times” and that she often had to give refunds on Hawk tickets. She said that when the ride was not working, the defendant would be called because “he was the one that worked on the ride.” She said that, to her knowledge, no one else fixed the ride. She said that during the nine months she worked at Rockin Raceway while the Hawk was there, she saw the defendant “work on” the ride three times. Each time, he would be working in an area behind the ride but she never saw exactly what he did or on what part of the machinery he worked. She said that after the victim’s death, the defendant appeared very quiet and sad. Jerry Lindsey, the owner of Rockin Raceway and the defendant’s brother-in-law, testified that, as manager, the defendant was responsible for overseeing outside operations at Rockin Raceway, including rides and go-carts. He said the defendant was probably the person who would handle any electrical problems on the rides or make necessary repairs to the rides. He said he experienced problems with the Hawk when it was first purchased. Mr. Lindsey said the defendant was a salaried employee whose pay was not tied to the profitability of the business but who received a bonus at the end of the year, which depended, in part, on how well the business did that year. He -11- said that about a year before the victim’s death, the defendant expressed a desire to resign his position at Rockin Raceway. The defendant agreed to continue as manager after Mr. Lindsey told him he would no longer be responsible for maintenance. Mr. Lindsey acknowledged, however, that the defendant continued after this time to oversee some maintenance on the rides and that, when interviewed by Detective Kendall, he never said the defendant had stopped doing maintenance on the rides. He said that other employees may have performed maintenance on the Hawk but that any “major problems” probably would have been handled by the defendant. Mr. Lindsey agreed that he was a “hands off” owner who was not involved in the daily operations of Rockin Raceway. He acknowledged that the business made more money when the Hawk was in operation, but he said he would never prioritize money ahead of safety. Josh Williams testified that he worked at Rockin Raceway from March 2002 to March 2004. He said that he regularly operated the Hawk as part of his work duties and that he was fifteen years old when he first started operating it. He said the defendant was the only person he had ever seen or heard of doing electrical work on the Hawk. He said he accessed the electrical panel himself either to turn on the ride in the morning or to reset the breaker. He said he noticed the red jumper wire in the electrical panel and thought it “looked odd.” He said that he saw the jumper wire when he first opened the electrical cabinet to turn on the ride and that it was there the entire time he worked at Rockin Raceway. He said he thought the red jumper wire looked unusual but was not worried about it and never talked to the defendant about it. Mr. Williams said he quit working at Rockin Raceway about a week before the victim’s death. Ken Mace testified that he lived in Indiana and that on July 22, 2003, while in Pigeon Forge on vacation with his family, he rode the Hawk at Rockin Raceway. He said that after he sat on the ride, a restraint harness was pulled over him. He described the harness as a “hard rubber covered yoke that comes down over your shoulders and across the chest” and which had two chrome handles on the outside of it. He said the ride’s operator came to him to check if his harness was secure. Mr. Mace said the harness appeared to be secure. However, he said that after the ride started and went through two partial revolutions, and when he was at the highest point facing the ground, his harness “released forward” about one foot or one and one-half feet. He tried to pull the harness back down, but it was stuck. He said he then tried to keep himself steady in his seat to prevent his falling. He yelled to the operator as the ride was coming down, but the operator was standing about ten to fifteen feet away from the control panel. He said he started to slide out of his seat but held on as best he could. He said he was worried that the harnesses had released on all the seats and worried about his two children who were also riding. He said the ride made one full revolution before it stopped. After he got off the ride, Mr. Mace talked to someone at Rockin Raceway and also reported the incident to Officer Wyrick with the Pigeon Forge Police Department. Mr. Mace said that he was five feet, eleven inches tall and weighed 260 pounds. On cross-examination, Mr. Mace testified that he was certain he saw and talked to the defendant on July 22, 2003. He said he would be shocked to find out that the defendant was attending his father’s funeral in West Tennessee that day. He acknowledged that in two previous statements to police, he did not mention the defendant, but he said it was because he spoke with a -12- man who did not identify himself but whom he recognized as the defendant in court. Mr. Mace said he rode the Hawk between 9:00 and 9:30 p.m. on July 22, 2003. He said that afterwards, he first talked to the ticket booth operator. He said he then talked to a lady who was in the arcade and then a man, who he said was the defendant. Later that night, he reported the incident to the Pigeon Forge Police Department. He said the police officer led him to believe the matter would be referred to some state department or agency for investigation, but he was never contacted by anyone regarding the matter until Detective Kendall contacted him after the victim’s death. Mr. Mace said that the defendant did not operate the Hawk when he was riding it. Tony Hardwick, a resident of South Carolina, testified that he was at Rockin Raceway in Pigeon Forge on July 22, 2003, when Ken Mace rode the Hawk. He said he was observing his daughter, who was riding the Hawk, when he saw a man “hanging.” He commented on the man to a woman who was standing next to him, who turned out to be Mr. Mace’s wife. He said he only saw Mr. Mace for a “split second” because he quickly returned his attention to his daughter. It was unclear to what extent Mr. Hardwick saw Mr. Mace “hanging,” but Mr. Hardwick testified that he saw Mr. Mace “holding onto something” and that it appeared at one “split second” that Mr. Mace was holding on with his hands while his entire body was out of the ride. After the ride stopped, Mr. Hardwick immediately checked on his daughter. He said he saw and heard Mr. Mace talking to the ticket booth attendant and some other people. He approached Mr. Mace and the two exchanged business cards. Joey Dickson testified that he worked at Rockin Raceway from 1991 until 2003 and that he eventually became an assistant manager there. He said the defendant was his step-father. He said he was at Rockin Raceway on July 22, 2003, when Ken Mace rode the Hawk. After speaking with Mr. Mace, Mr. Dickson ordered that the ride be shut down until it could be inspected. He said the defendant was out of town attending his father’s funeral at the time and that he and the defendant inspected the ride one or two days later. He said that the defendant “was the one who did maintenance” on the Hawk, which he said included replacing light bulbs and fuses, and that the defendant would call Zamperla if the ride was broken. He said he did not know if the defendant called Zamperla regarding the Mace incident, but he did know that Zamperla did not come to Rockin Raceway to address the problem. Mr. Dickson said that following the Mace incident, he and the defendant checked the Hawk’s seat restraint safety system by lowering the safety bars and holding them up in order for the pins in the bar not to engage in the holes in the seat. He said that they tried to start the ride while seats were in this non-secure position but that the ride would not run and an alarm sounded. Thus, they concluded that the safety system was working. He said their inspection of the Hawk following the Mace incident took one to two hours and that the defendant concluded that Mr. Mace’s size likely prevented the lap bar from lowering enough for the pins to engage in the holes. He said the defendant instructed the assistant managers not to allow large people to ride the Hawk. Mr. Dickson acknowledged a prior statement in which he said that Mr. Mace was saved from falling out of his seat by the safety pin in the rear of the seat, even though the safety pins on the sides of the seat appeared not to have been engaged. He said that as designed, the ride should not have operated if -13- any of the safety pins were not in proper position. Mr. Dickson testified that to his knowledge, only the defendant and Phil Castellano had performed electrical work on the Hawk while it was at Rockin Raceway. On cross-examination, Mr. Dickson testified that the Hawk had problems since it was first set up at Rockin Raceway and that it was shut down a couple of times per year. He said the ride was assembled at Rockin Raceway in two days and that he was one of the first people trained to operate the ride by Mr. Castellano. He said his training lasted about thirty minutes and that he was not shown the ride’s operations manual during training. He said Rockin Raceway did not receive the manual until four to six months after the ride was set up. He acknowledged several things that Mr. Castellano did not tell him regarding the operation of the ride, including that people under the influence, pregnant women, and people with certain health conditions should not ride; that Rockin Raceway staff should perform daily checks of the ride’s safety systems; and that the ride’s operator should be in full control and paying full attention to the ride while it was running. He said the first problem with the ride involved a malfunction of the platform that was supposed to lower when the ride started. He said he observed Mr. Castellano and an Italian-speaking Zamperla employee work on the platform and add a hydraulic mechanism to correct the platform problems. He said they added sensors to the platform, which involved adding wires to the Hawk’s control panel. He said the last time he saw Mr. Castellano at Rockin Raceway was in 2000. Mr. Dickson testified that the defendant was a very meticulous and exacting person, that he was a demanding employer, and that he had warned Mr. Dickson against “cutting corners.” He said the defendant was also fair and generous and that the defendant ran a “tight shop” at Rockin Raceway. He said the defendant made sure all go-carts ran at approximately the same speed in order to avoid accidents. He said that he knew the defendant very well and that the defendant would never recklessly injure or knowingly kill someone. Starr Johnson testified for the defense that she was in Pigeon Forge on March 13, 2004, with a youth group, when some members of her group wanted to ride the Hawk at Rockin Raceway. She said that when several members of her group went to ride the Hawk, the lap bars would not lock down. She said operators started the ride and “swung it a couple of times” to see if the bars would lock. Eventually, they stopped the ride, and all the riders were offered a refund. Ms. Johnson said she sat on a bench and observed two men working on the Hawk for about twenty minutes before telling people that the ride was working and that people would be given a free ride. She said she was in Pigeon Forge the day of the victim’s death but did not hear about it until the morning after. She said that about two weeks later, she informed the Pigeon Forge Police Department of what had happened when she was at Rockin Raceway. She said that she wrote a letter about the incident but that no one from the police department contacted her afterwards. Ms. Johnson said she did not see the defendant at Rockin Raceway while she was there. Ms. Johnson’s daughter, Chelsey Johnson, testified that she was also at Rockin Raceway on March 13, 2004. She said she sat on a nearby bench while members of her group attempted to ride the Hawk. She said riders were instructed to get off the ride and seek a refund after the lap bars -14- failed to lock down properly. She said that the ride’s operator said he was going to find someone to fix the ride and that she saw him get another man from the arcade area to work on the ride. She said that the young man who was operating the ride stayed in the area at the front of the ride where the control buttons were but that at one point, the other man went to the rear of the ride. She said that the man was at the rear of the ride for about five minutes and that soon after he returned, they were told that the ride was working. She said that the man did not take any tools with him toward the rear of the ride and that she did not see what he did while back there. The defendant testified that he grew up on a farm in West Tennessee, graduated from high school, and served in the U.S. Air Force, where he worked on a missile maintenance team. He worked at a paper plant before being selected for the instrument mechanic apprenticeship program with TVA. He worked for TVA for twelve years, first as an instrument mechanic, working on instruments that kept the rectors safe, and later as a quality assurance evaluator. He retired from TVA and went to work at Rockin Raceway, which was co-owned by his brother-in-law, Jerry Lindsey. He and his wife became managers; his wife managed the indoor arcade, while the defendant “would overlook everything on the outside.” At that time, there were only go carts outside, but over time, Rockin Raceway acquired different outdoor rides. The defendant said that the Hawk was the last ride to arrive at Rockin Raceway. He said that Rockin Raceway owners made the decisions about what rides to acquire and that they decided to purchase the Hawk after Mr. Lindsey saw the Hawk at a trade show in Florida. It was purchased in February 1998 and set up about three weeks later by Phil Castellano. The defendant identified photographs that Mr. Castellano used in setting up the Hawk and said that Mr. Castellano did not have a manual at the time. He said that the set-up took about two days and that it took Mr. Castellano about two hours to train him and some other Rockin Raceway employees. He said that Mr. Castellano informed him that the ride was “completely automatic, completely safe, and you didn’t have to know a lot more than that.” Mr. Castellano told him that several safety and backup devices were on the ride and that “if the ride started, then it was safe.” He said Mr. Castellano specifically told him that there was a backup safety device in the backs of the seats that would always keep a rider from falling out, even if the other safety devices failed. The defendant testified that the Hawk had problems from its inception at Rockin Raceway. The platform began malfunctioning soon after it was set up. The defendant said that he reported the platform problems to Zamperla and that he was instructed to install a piece of metal across the platform and later to replace a rail that had broken. He said Mr. Castellano and another Zamperla associate came to Rockin Raceway and installed on the Hawk hydraulic stands that they manufactured onsite. He said the Zamperla representatives also added some wires to the electrical panel having to do with the platform system. He said the lap bars also began malfunctioning, as they sometimes would not close and sometimes would not open. He said there were also times when the bars were locked down but the ride still would not start. He said that he talked to Mr. Castellano about these problems and that Mr. Castellano taught him to reset the restraint system in order to fix the problems. He said the ride also had problems with its lights and motor. Mr. Castellano came to Rockin Raceway in July 2000 to address the motor problem and discovered that a coupling device was broken. He instructed the defendant to replace the coupling device with a rubber gas hose that -15- the defendant had. The defendant said he would not have performed any work on the motor without the direction of Zamperla. He said he never installed the replacement coupler that Mr. Castellano ordered because Mr. Castellano never instructed him how to install it. The defendant testified that his responsibilities as general manager at Rockin Raceway were to oversee the outside activities and to ensure the safety of patrons. He said he performed training and made sure employees were performing their jobs properly. He said he performed maintenance on the Hawk and other rides. He listed the work he did on the Hawk as follows: replacing light bulbs, resetting breakers, replacing fuses, cleaning, and greasing. He said the only work he had ever done in the electrical panel was replacing a fan, replacing fuses, resetting breakers, and entering data in a computer upon Mr. Castellano’s direction. He said that about a year before the victim’s death, he stopped doing maintenance work on the rides because it was too much for him to handle, although he later said he did work in the Hawk’s electrical cabinet six weeks before the victim died. He said he saw Mr. Castellano or another Zamperla associate do the following work in the Hawk’s electrical panel: replace a converter, add two wires related to the platform system, add jumper wires when the gate safety switches were taken out, and turn on the alarm bypass switch during set up. He said that neither the cardboard box that was found in the electrical cabinet nor the items that were inside it belonged to him. The defendant testified that on July 22, 2003, when Ken Mace rode the Hawk, he was in West Tennessee, due to his father’s death that morning. He said that his wife informed him that someone’s lap bar had come forward while riding the Hawk and that the passenger was very upset. He said he was not told that someone almost fell out of the ride. He said that when he arrived back to Pigeon Forge, he and Joey Dickson checked all the safety devices of the ride and that they all appeared to work. He said he determined that an anomaly had occurred due to Mr. Mace’s large size, and he made the decision to put the ride back in operation. He said it appeared to him that the safety device in the back of Mr. Mace’s seat kept him from falling out of the seat, and this was consistent with what Mr. Castellano had told him. The defendant testified that on March 14, 2003, he was spending time with his brother, who was visiting from out of town. He said that he stopped by Rockin Raceway that morning to check in and that his brother’s family spent much of the day there riding rides, including the Hawk. He said he learned about the victim’s fall from the Hawk when he received a telephone call from Judy Chance on March 14, 2003. He immediately drove to Rockin Raceway and assisted the passengers who were stuck on the ride. He spoke to police three times about the victim’s death, once on the scene and twice later in Detective Kendall’s office. He said that during the second time he spoke to Detective Kendall, it was clear to him that he was being blamed for the victim’s fall. He said that before this incident, he had never been arrested. He maintained that he did not knowingly or recklessly kill the victim and that he did not place the jumper wire on the Hawk. On cross-examination, the defendant testified that he was aware the Hawk cost over $400,000, and that Rockin Raceway’s owners had to take a bank loan to pay for it. He acknowledged that Rockin Raceway lost money every time the Hawk had to be shut down. He said -16- that during his fifteen years working at Rockin Raceway, he worked with twenty to thirty different rides and often looked at the manuals of those rides. He said, however, that he did not feel that the Hawk was unsafe to operate without a manual, and he estimated that the Hawk was at Rockin Raceway for four months before Zamperla sent its manual. He said he read parts of the manual but not all of it, including the parts about the need to have two ride operators and that someone should check the safety systems periodically. He said that when the Hawk had motor problems, he set up the temporary gas hose coupling in order to keep the ride running and never replaced the temporary part. He agreed that, ultimately, he made the decisions about whether the Hawk should be shut down but said he always followed Zamperla’s orders. The defendant agreed that the Hawk was the most dangerous ride at Rockin Raceway and that it could be deadly without the lap bars. He was aware that all three safety pins on the lap bar and seat of the Hawk were supposed to be secured before the ride could run. He said he did not call Zamperla after the Ken Mace incident, even though he previously had called Zamperla about other problems with the ride, such as those with the platform, fuses, and the lap bars not opening or closing. He said he did not call Zamperla because his own tests did not indicate that anything was wrong and convinced him that the ride was safe to operate. He said the ride had a one-year warranty and acknowledged that the warranty had expired by July 2003. However, he also said the warranty was expired in July 2000, which was the last time Phil Castellano or any Zamperla representative had gone to Rockin Raceway to work on the Hawk. The defendant testified that Mr. Castellano used a key that bypassed the Hawk’s security systems during the initial set-up, that the key was then locked in the office at Rockin Raceway, and that it was never used after the initial set-up. He testified that while he had opened the Hawk’s electrical cabinet many times, he was not the only person who did so. He said Mike Stepp once replaced a device on the main breaker. He said he did not keep a maintenance log for the Hawk and did not think it was important to do so. He said the cardboard box full of tools that was found in the electrical cabinet could have belonged to any of the managers at Rockin Raceway. He said he never saw the red and black jumper wires on the electrical panel, including when he worked on the ride six weeks before the victim’s death. He said he did not see them until after the ride was released back to him following the victim’s death. He agreed that the wires looked very unusual. He said that he was present at Rockin Raceway on March 15 and 16, 2004, but that he was not part of the group that examined the Hawk. He said he was also at Rockin Raceway on March 17, 2004, when Mr. Castellano performed tests on the Hawk. He said he did not ask to be part of the group that was examining the Hawk because he was told officers wanted to restrict access to the ride and he thought someone would call if he was wanted. He agreed that no one told him he could not be involved. The defendant testified that he did not tell Detective Kendall that he never had problems with the Hawk’s lap bars. He said Detective Kendall lied when he said that the defendant told him that the only people who could have attached the jumper wire to the electrical panel were the defendant and Mr. Castellano. He denied that the reason he did not call Zamperla about the Mace incident was because the ride was out of warranty. -17- The defendant’s brother, Ted Martin, testified that on July 22, 2003, the defendant was in West Tennessee with him, making arrangements for their father’s funeral. He said that he was with the defendant on March 13, 2004, the day before the victim’s death and that they stopped by Rockin Raceway for about fifteen minutes. He said that they left and that while they were at the flea market, his family was at Rockin Raceway riding the Hawk. Milford Brinton testified for the defense as an expert in electrical engineering. He said he examined the electrical design of the Hawk and reviewed the ride’s manual, which included logic diagrams and wiring schematics. He reached the conclusion that the defendant did not put the jumper wires on the Hawk that bypassed the Hawk’s safety systems. He said the ride could not have operated without the jumper wires and that the wires had to have been in place when the ride was operated at the trade shows in Florida, before Rockin Raceway purchased it, and when it was first set up at Rockin Raceway. Mr. Brinton explained that circuits numbered 144 and 145, upon which the black jumper wire was found, each involved multiple switches that needed to be closed for an electric relay signal to allow the ride to “leave the station.” He said that number 144 contained switches that closed when the seat restraints were lowered to a safe position. Number 145 contained switches corresponding to the three safety locking pins on each of the twenty-four seats, for a total of seventy-two switches. He said the ride should have been designed for each switch to close only when the corresponding pin was locked, thus preventing the ride from running if any of the seventy- two pins were not secure. He said that as the schematics were actually designed, however, some of the seventy-two switches were opened even when all the seventy-two pins were locked. He attributed this to a design defect. He said that a jumper wire could be installed on the wire for circuit 145 to bring electricity to that circuit and allow the ride to run. He said that this would bypass the safety switches and allow the ride to run regardless of whether the pins were in their proper positions. Mr. Brinton said that Ed Pribonic’s simplified diagram of circuits 144 and 145 was not accurate in that it did not actually show the position of the switches as designed. He said that the same design defect on circuit 145 was also on circuit 146 and that the red jumper wire was connected to that circuit to correct the defect. He said that, in his experience, the use of jumper wires was a common way to troubleshoot electrical problems. On cross-examination, Mr. Brinton testified that he did not try to run the ride because it was inoperative. He said running the ride was not necessary to his investigation, although he agreed that he could have demonstrated the effects of the jumper wires and supported his theory that the machine had a design defect by running the ride with and without the jumper wires. He said that he relied on the design drawings to reach his conclusion and that he had studied those for about a month. He identified a red wire that had been installed by Zamperla to bypass the ride’s safety gate switch and was installed in a manner he said was less temporary and more consistent with what he would have done than were the jumper wires installed on the circuits dealing with the lap bar safety system. He said the way the wires on circuits 144 and 145 were installed, by attaching them with alligator clips to “skinned” wires, was common in troubleshooting and that they may have been placed that way in haste, such as when the ride was set up at a trade show. He said he would not have left the wires that way for the long-term because he preferred to do neat and meticulous work. He said that it was also not uncommon to find a box of tools in a machine’s electrical cabinet. He acknowledged, -18- though, that this was the only amusement ride electrical cabinet into which he had looked. He explained that the difference between his conclusion and Mr. Pribonic’s conclusion was that Mr. Pribonic assumed all the switches on circuit 145 would close when the pins were secured, whereas he found that the circuit was designed defectively such that some of the switches were open when the corresponding pins were secured. Mr. Brinton acknowledged that he was being paid for his services in investigating the Hawk and testifying in court. Frank Johnson, the owner of an engineering consulting firm in Texas, testified as an expert in the fields of mechanical engineering, electrical engineering, and amusement ride safety inspection. He said he was contacted in April 2005 to review the manual and schematics for the Hawk, along with Mr. Pribonic’s report and some other documents. He said he reviewed the Hawk’s electrical diagrams with the assistance of Mr. Brinton, who works for his consulting firm. He said he agreed with Mr. Brinton’s testimony that the Hawk was defectively designed. He said Mr. Pribonic’s simplified drawing of circuit 145 was not accurate, in part because it omitted representations of the switches that were normally closed when the pins were not in position. He stated that the way the ride was designed, jumpers had to be placed on circuits 144, 145, 146, and 126 in order for the ride to operate. He agreed with Mr. Pribonic that the jumpers bypassed the safety restraint systems, but he stated that Mr. Pribonic did not answer the question of why the jumpers were there. He said the answer was that the ride would not operate without them. He said he watched the video which showed Mr. Castellano and others performing tests on the Hawk after the victim’s death. He said he noted a serious omission in the testing in that the Hawk was not operated with all the seat restraints down, pins secured in place, and jumpers removed. On cross-examination, Mr. Johnson testified that he did not prepare a report because he was not asked to. He said he did not know whether the jumpers were first put on the Hawk while it was at the manufacturing plant in Italy because he did not know whether it was set up and operated there. He said the wires had to have been in place the first time that the ride was fully assembled and operated. He said that he would have noticed the jumper wires on the electrical panel because he would be looking for them but that it was conceivable that the defendant did not notice them, as he could not be certain that he would have seen them if he were not expecting them. He agreed that attaching jumper wires with alligator clips, as was done on the Hawk, was not a good practice and that he would not have done it. He said that, as a safety inspector, if he noticed the jumper wires, he would have shut down the ride until he determined what anomaly the jumpers were supposed to be correcting. He said he never tried to operate the ride. On rebuttal, Audie Layman testified that he worked at Rockin Raceway in the summers of 1997, 1998, and 1999. He said he started working at Rockin Raceway soon after the Hawk was first set up. He said he had operated the Hawk and that on occasions the ride would not start because not all the lap bars were secured. He said that when the ride would not start, he would walk around to each seat and see which one was not properly secured. He said he could tell which one was not secure because red lights beside each seat would light up if the pins were locked. He said he had to stop relying on the red lights because some of the lights burned out over time and were never -19- replaced. He said that up to the time that he left Rockin Raceway in 1999, the ride would not start unless the lap bars on all the seats were secured. Christopher Caldwell testified that he worked at Rockin Raceway from the spring of 1998 until July 2000. He said he became a manager during his second year working there. He said that he operated the Hawk on many occasions and that, on some occasions, the ride would not start after he lowered all the lap bars and tried to start it. He said that when that happened, he had to check each seat to make sure the safety pins in the lap bars were extended in their proper positions. He said if the ride still did not start after he checked all the lap bars, he would have to reset the control panel, raise the bars, and start over again. He said the ride would not start unless all the lap bars were secured. Mr. Caldwell agreed that the defendant was fair and generous and that he was concerned for the safety and well-being of others. He never saw the defendant place a jumper wire in the Hawk. Robert Fox testified that he was the Director of Safety and Security at Dollywood and formerly worked in law enforcement. He said that in his position at Dollywood, he was responsible for ensuring that rides were safely maintained, which involved overseeing the set-up of new rides. He said that Dollywood had recently acquired four new rides manufactured by Zamperla and that Phil Castellano had assisted in assembling those rides. He said Mr. Castellano was professional and competent. He said that none of the rides had wires connected with alligator clips in them and that he would not have allowed a ride with alligator-clipped jumper wires to be operated. He said that Dollywood personnel checked the emergency stop button and lap bar safety restraints on their rides daily. He kept a maintenance log on the rides that documented problems with the rides and who was performing work on them. He said he referred the Pigeon Forge Police Department to Ed Pribonic. He said rides are usually set up using the ride’s manual, not just pictures, and that if he did not receive a manual for a ride and he thought he needed the manual, he would not let anyone ride it until the manual was received. Based on this evidence, the jury found the defendant guilty of reckless homicide as a lesser- included offense of second degree murder. After a sentencing hearing, the defendant received a sentence of four years to be served on probation. I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence presented at trial was not sufficient to convict him of reckless homicide. He argues that (1) the circumstantial evidence did not prove that he placed on the Hawk the jumper wire that bypassed the ride’s safety restrictions, (2) evidence was insufficient to show that he was aware of and disregarded a substantial and unjustifiable risk that constituted a gross deviation from a standard of care, and (3) that his actions were not the proximate cause of the victim’s death. The state counters that the evidence was sufficient. Our standard of review when the defendant questions the sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any -20- rational trier of fact 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 (1979). We do not reweigh the evidence; rather, we presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and the weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A crime may be established by direct evidence, circumstantial evidence, or a combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). A. Circumstantial Evidence The defendant contends that the state’s circumstantial evidence did not prove that he placed on the Hawk the jumper wires that bypassed the ride’s safety restraint system. He argues that, in fact, the evidence proves his alternate theory: that the ride could not operate without the jumper wires and that, thus, the wires were on the Hawk since it was first assembled and operated, before arriving at Rockin Raceway. The defendant was convicted of reckless homicide, which is defined as the “reckless killing of another.” T.C.A. § 39-13-215. “Reckless” means that a person [] acts recklessly with respect to circumstances surrounding the conduct or the result of the conduct when the person is aware of, but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint[.] T.C.A. § 39-11-302(c). The state’s primary theory of the case was that the defendant attached to the Hawk’s electrical panel a jumper wire that bypassed the safety restrictions of the ride and that led to the victim’s fall and death. The state presented no direct evidence that the defendant placed the jumper wire on the Hawk but rather attempted to prove the defendant’s conduct through circumstantial evidence. Circumstantial evidence alone may be sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App. 1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). However, to warrant a criminal conviction on circumstantial evidence alone, the evidence “must be not only consistent with the guilt of the accused but it must also be inconsistent with his [or her] innocence and must exclude every other reasonable theory or hypothesis except that of guilt.” Pruitt v. State, 3 Tenn. Crim. App. 256, 267, 460 S.W.2d 385, 390 (1970). While following these guidelines, we must note that the jury decides the weight to be given to -21- circumstantial evidence and that “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” Marabel v. State, 203 Tenn. 440, 452, 313 S.W.2d 451, 457 (1958) (quoting 2 Wharton’s Criminal Evidence 1611). We review the evidence regarding the placement of the jumper wires in the light most favorable to the state. The defendant was responsible for performing regular maintenance on the Hawk and other rides at Rockin Raceway. The defendant, alone from Rockin Raceway, was known to perform repairs and work in the electrical cabinet of the Hawk. When employees experienced problems with the ride, they notified the defendant, who worked on the ride and who made the decision whether to put the ride in operation or to shut it down. Two jumper wires were attached in an unusual manner to existing wires in the Hawk’s electrical panel, one of which had the effect of bypassing the safety restraint mechanisms on the ride, thereby allowing the ride to operate even if all the lap bars on the ride were not secured. Several people who investigated the ride after the victim’s death said they noticed the jumper wires in the electrical panel and thought them highly unusual. According to the state’s expert witness, Mr. Pribonic, the ride was designed to prevent itself from operating unless all the pins securing all the lap bars were locked in place. Several Rockin Raceway employees testified that the ride would not operate unless the pins securing the lap bars on all the seats were locked in place. Rockin Raceway personnel experienced many problems with the Hawk, and the ride would not operate on many occasions. Josh Williams, a former Rockin Raceway employee, noticed the jumper wires in the electrical panel after he started working at Rockin Raceway in March 2002. By the time that Ken Mace’s lap bar became loose while riding the Hawk, the safety restraint mechanism had been bypassed, allowing the ride to operate even though Mr. Mace’s lap bar was not secure. The defendant did not contact anyone from Zamperla, the ride’s manufacturer, regarding this incident. A cardboard box containing tools, a package addressed to Rockin Raceway, and jumper wires matching those found on the Hawk was stored in the ride’s electrical cabinet. According to Detective Kendall, the defendant acknowledged that only he or someone from Zamperla could have put the jumper wires on the ride. Phil Castellano said that when he examined the ride after the victim’s death, he noticed the red and black jumper wires, which he said were not on the ride when he assembled it at Rockin Raceway. In the light most favorable to the state, the evidence reflects in particular that the black jumper wire was installed on the Hawk sometime after Mr. Castellano last worked on the ride in July 2000. According to Bradley Burns, in September 2002, an alarm on the ride would sound and the ride would not move if the lap bars were not all securely latched. This is evidence that the safety system was operating at that time. In July 2003, Mr. Mace was able to ride the Hawk, despite his restraint not being secure. According to Mr. Pribonic, the Mace incident was indicative of a safety system bypass in July 2003. There was additional evidence to refute the defendant’s claim that the safety system had been bypassed before the Hawk arrived at Rockin Raceway. Rockin Raceway employees Audie Layman and Christopher Caldwell testified that in 1999 and 2000, the ride would not start if the lap bars were not secure. -22- The defendant avers that the evidence at trial actually proves that he did not place the jumper wires on the ride. He points to the testimony of his two expert witnesses, Mr. Brinton and Mr. Johnson, that the ride was defectively designed such that it was inoperable without the jumper wires. They stated that because the ride was assembled and operated before it was purchased by Rockin Raceway, the jumper wires must have been on the ride before the defendant ever had access to it. At trial, the defendant presented the theory that someone from Zamperla, presumably Mr. Castellano, had placed the jumper wires on the Hawk. The jury had the opportunity to hear and consider this theory. They considered the defendant’s testimony that he did not place the jumper wires on the ride and that he, in fact, had never even seen the wires there even though he performed various maintenance tasks in the electrical cabinet. The jury likewise considered Mr. Castellano’s testimony that the wires were not in the ride when he first set it up at Rockin Raceway. The jury heard the testimony of Mr. Pribonic and the contrary testimony of Mr. Brinton and Mr. Johnson. It is true that none of the experts or any other witnesses attempted to operate the ride without the black jumper wire but with all the seat restraints secured. However, as noted above, the state did present testimony from Rockin Raceway employees that there was a time during which the ride would operate only if all the seat restraints were secured, which indicates that the safety system was not bypassed at that time. Rockin Raceway staff understood that each of the safety pins on each seat had to be secure for the ride to start. It is the province of the jury to weigh conflicting evidence and to judge the credibility of witnesses. If the jury accredited the testimony of Mr. Castellano, Mr. Pribonic, and the various Rockin Raceway employees, it could reject the defendant’s theory that the jumper wires were on the Hawk before it arrived at Rockin Raceway and accept the state’s theory that the defendant had placed the wires on the ride. As such, the evidence was sufficient to prove that the defendant was responsible for placing on the ride the jumper wire that bypassed the safety restraint mechanisms. B. Proof of Recklessness To prove that the defendant’s actions constituted recklessness, the state’s evidence must show that the defendant was aware of but consciously disregarded a substantial and unjustifiable risk, which risk constituted a gross deviation from the standard of care that an ordinary person would have exercised under the same circumstances. See T.C.A. § 39-11-106(a)(31). The defendant contends that the evidence at trial failed to prove any conduct of his that constituted recklessness. He argues that he was not aware of a substantial and unjustifiable risk of death and that no conduct of his amounted to a gross deviation from a standard of care. The state argues that the defendant’s actions regarding the jumper wires and the Ken Mace incident are sufficient proof that he was aware of but disregarded a substantial risk and that he acted in gross deviation of the applicable standard of care. 1. Awareness of Risk To be culpable for reckless homicide, a defendant must have been aware of, but consciously disregarded, a substantial and unjustifiable risk, which disregard resulted in the victim’s death. See T.C.A. § 39-11-302(c) (defining “reckless” mental state). Reckless homicide differs from criminally negligent homicide only in that the latter requires that the defendant ought to have been aware of the risk. Id. at § 39-11-302(d) (defining “criminal negligent” mental state). This court has explained -23- the findings a jury must make in determining whether someone is guilty of criminally reckless behavior: The risk of which the accused is aware must be substantial in order for the recklessness judgment to be made. The risk must also be unjustifiable. The awareness of the risk is measured from the actor’s point of view. The question remains as to what standard is used in determining how substantial and how unjustifiable the risk must be in order to warrant a finding of culpability. These are questions to which the jury must evaluate the actor’s conduct and determine whether it should be condemned. Thus, the jury must answer two questions: (1) to what extent was the actor aware of the risk, of factors relating to its substantiality, and of factors relating to its unjustifiableness; and (2) whether the actor’s conscious disregard of the risk justifies condemnation. State v. Dean Benjamin Clark, II, No. 02C01-9705-CC-00186, Hardeman County, slip op. at 7 (Tenn. Crim. App. May 8, 1998). Although a crime defined by a reckless mental state requires that the offender was actually aware of the risk, the Sentencing Commission Comments to section 39-11- 302(c) explain that “reckless” conduct “provides liability for conscious risk creation where there is no desire that the risk occur or no awareness that it is practically certain to occur.” In the present case, the evidence proved that the Hawk’s electrical panel was altered by the black jumper wire to bypass the safety restraint mechanisms of the ride and allow the ride to operate even if riders were not secured in their seats. The defendant admitted at the trial that the ride could be deadly without its lap bars, or seat restraints. The presence of the black jumper wire created a condition allowing the ride to make its 360 degree rotations, to a height of sixty feet, without a rider’s seat restraint being properly secured. We conclude that the presence of the jumper wire on the Hawk created a substantial and unjustifiable risk of injury or death to those who rode it. The evidence must also be sufficient to prove that the defendant was aware of this risk and that he consciously disregarded it. Having concluded that the evidence is sufficient to prove that the defendant placed the jumper wires on the Hawk, we likewise conclude that the evidence is sufficient to prove that the defendant was aware of the risk he created. Mr. Pribonic testified that, in his opinion, the person who put the black jumper wire on the ride was attempting to bypass the safety restraint mechanisms of the ride. There was also circumstantial evidence from which the jury could infer that the defendant was aware of the dangerous condition of the ride. For instance, the jury could infer from the defendant’s actions following Mr. Mace’s near-fall from the ride–particularly, that the defendant examined the ride and did not contact Zamperla about the problem–that he was aware a substantial risk existed. Furthermore, the jury could infer that the defendant knew the function of the wires and circuits that he attempted to manipulate through the jumper wires, especially considering that the defendant had possession of the Hawk’s instruction manual which included wiring schematics. The defendant makes much of the fact that he allowed his family -24- members to ride the Hawk, from which he means us to infer that he was not aware of any risk involved with riding the Hawk in its condition. However, it is not necessary that the defendant was aware that the restraints were likely to come loose and someone was likely to fall from the ride. Riders still could have been safe on the ride as long as the seats were properly secured. The substantial and unjustifiable risk which was created by the black jumper wire was that the ride would operate and make its 360 degree revolutions even if someone was not securely restrained in his or her seat. The evidence was sufficient to prove that the defendant was aware of this risk and consciously disregarded it. 2. Gross Deviation from the Standard of Care With the evidence being sufficient to establish that the defendant was aware of the substantial and unjustifiable risk created by the safety restraint mechanisms being bypassed on the Hawk, the next question is whether the evidence was sufficient to show that the defendant’s disregard of the risk constituted a gross deviation from the standard of care of an ordinary person under the circumstances. The defendant argues that the required showing was not made, as evidenced by the defendant’s affirmative steps to ascertain the cause of Mr. Mace’s problem with the ride and the defendant’s instructions to employees to prevent obese people from riding the Hawk. The defendant further argues that there was no clear standard of care that the defendant violated. The state counters that a gross deviation from a standard of care was proved by evidence that the defendant had apparent knowledge of a potentially dangerous amusement ride under his control and did not take sufficient measures to protect patrons from the dangerous condition. When determining whether a defendant’s conduct constituted a gross deviation from the standard of care that an ordinary person would exercise under the circumstances, we may look to the civil law of negligence for guidance and instruction. State v. Roger Hostetler, C.C.A. No. 02C01- 9707-CC-00294, Lauderdale County, slip op. at 9-11 (Tenn. Crim. App. Mar. 27, 1998). However, criminal liability is based on a higher degree of negligence than that required for civil liability. T.C.A. § 39-11-302(d), Sent’g Comm’n Cmts. Where a mere deviation from a standard of care may result in civil liability, criminal culpability based on recklessness or negligence requires a “gross deviation.” Roger Hostetler, slip op. at 12. To convict someone of reckless homicide or criminally negligent homicide, evidence must show that the accused knew, or should have known, “that his or her conduct, or the result of the conduct, will imperil the life of another given the circumstances that exist when the conduct takes place.” State v. Goodwin, 143 S.W.3d 771, 779 (Tenn. 2004) (quoting State v. Adams, 916 S.W.2d 471, 474 (Tenn. Crim. App. 1995)). Consequently, our courts have upheld convictions only in cases in which “the risk is of such a nature and degree that injury or death is likely and foreseeable.” State v. Gillon, 15 S.W.3d 492, 498 (Tenn. Crim. App. 1997). We do not agree with the defendant’s argument that he cannot be criminally culpable for his conduct because there was no standard of care regarding his maintenance and operation of the Hawk. Under civil law, operators of amusement rides owe a high duty of care toward patrons of their rides–“the same degree of care owed by a common carrier to its passengers,” which is “that care which the most prudent man would be expected to exercise under circumstances similar to those -25- shown in evidence, in the design, construction, maintenance, inspection, and repair of his vehicle and its approaches and exits.” Lyons v. Wagers, 55 Tenn. App. 667, 675, 404 S.W.2d 270, 274 (1966) (quoting Tennessee State Fair Ass’n v. Hartman, 134 Tenn. 149, 161, 183 S.W. 735 (1915); Banner v. Winton, 28 Tenn. App. 69, 70, 186 S.W.2d 222 (1944)). Furthermore, the duty of care in criminal cases may be dictated by common sense, such as in cases in which a person exercises “extremely poor judgment” in the handling of a dangerous weapon. Goodwin, 143 S.W.3d at 779 (affirming defendant’s conviction for reckless endangerment and criminally negligent homicide based on defendant’s actions in leaving loaded, cocked weapon in the woods behind a crowded neighborhood). A thrill ride like the Hawk has the potential for being extremely dangerous, even deadly. The defendant recognized this. It is common sense that as the general manager of an amusement park, the defendant, who admitted that he was responsible for the maintenance and safety of the rides under his charge, had a duty, in the least, to take reasonable measures to protect patrons against foreseeable death and injury related to the rides. Both parties cite the case of Roger Hostetler in their arguments regarding whether the defendant grossly violated the standard of care that an ordinary person would exercise. The defendant in that case was convicted of criminally negligent homicide after two of his dogs attacked and killed his elderly neighbor. A few weeks earlier, the dogs had attacked the victim and her husband, who informed the defendant of the incident. Id., slip op. at 3. Evidence showed that the dogs had been digging holes under their fenced enclosure to escape and that a sawhorse had been placed in the path of one of the holes, presumably to keep the dogs from leaving that way. Id., slip op. at 5. In reviewing the defendant’s conviction, this court first summarized the standard of care in civil law that a dog owner owes to others and determined that the applicable standard of care the defendant owed to the victim “was to save her from harm once he elects to keep the dogs after he ‘ought to have been aware’ of the danger.” Id., slip op. at 12. The court concluded that there was sufficient evidence that Hostetler grossly violated this standard of care when he had been informed of a previous occasion when his dogs may have attacked the victim and her husband, had apparent knowledge of a breach allowing his dogs to escape from their fenced enclosure, and took insubstantial efforts to correct this breach. Id., slip op. at 14. The defendant in the present case argues that his actions are distinguishable from those of the defendant in Hostetler in that he made an effort to determine what caused Mr. Mace’s seat restraint to move and took measures to prevent the incident from reoccurring when he instructed employees not to allow obese people to ride the Hawk. We disagree with the defendant that his actions were sufficient to avoid criminal liability. As discussed above, the evidence was sufficient to prove that the defendant was aware that a malfunction of the seat restraints had occurred and, thus, that the ride was in a condition in which serious injury or death was foreseeable. The defendant had a duty to protect patrons from such a risk. The evidence was sufficient to prove that the defendant actually put patrons at risk by altering the electrical panel of the Hawk and bypassing the safety restraint mechanisms. That the defendant informed employees not to allow obese people to ride the Hawk was an insubstantial effort to avoid liability, just as was Hostetler’s attempt to prevent his dogs from leaving their fenced enclosure by merely placing a sawhorse in the path of a hole. We also reject the defendant’s argument that his actions were not criminal in light of the fact that several -26- months passed between the Mace incident and the victim’s death, during which time no other problems with the seat restraints were reported. The defendant should have been aware at least from the time of the Mace incident, if not before, of the substantial and unjustifiable risk that existed. That it took nine months for the harm of this risk to be realized does not absolve the defendant. As previously noted, our courts have upheld reckless homicide and criminal homicide convictions in cases in which “the risk is of such a nature and degree that injury or death is likely and foreseeable.” Gillon, 14 S.W.3d at 498. The risk involved in the present case–that people could ride the Hawk without being restrained in their seats–was such that injury or death was likely and foreseeable. The defendant’s disregard of this risk was a gross deviation from the standard of care that an ordinary person would exercise under the circumstances. C. Causation The defendant’s final challenge to the sufficiency of the evidence is that the evidence was insufficient to prove that the defendant’s actions were the cause of the victim’s death. He argues that because the evidence cannot support a finding that he placed the jumper wires on the Hawk, the evidence also cannot prove that he was the actual cause of the victim’s death. He also cites three intervening causes of the victim’s death, which he says negate his culpability: (1) that the ride operator and ticket booth attendant disobeyed his orders not to allow obese people to ride the Hawk by allowing the victim to ride; (2) that the operator did not adequately check the victim’s restraint before starting the ride; and (3) that the operator refused to allow the victim to get off the ride when she requested. We reject the defendant’s argument. We have concluded that the evidence was sufficient to show that the defendant placed on the Hawk the jumper wire that bypassed the safety restraint mechanisms. Regarding intervening causes, to convict the defendant of homicide, “it is not necessary that his act or failure to act be the sole cause, nor the most immediate cause of death. It is only necessary that the defendant unlawfully contributed to the death of the deceased.” State v. Roberson, 644 S.W.2d 696, 698 (Tenn. Crim. App. 1982) (citing Letner v. State, 156 Tenn. 68, 299 S.W. 1049 (1927)). The requisite causation is generally “established by showing that the victim’s death was the natural and probable result of the defendant’s unlawful act.” State v. Ruane, 912 S.W.2d 766, 774 (Tenn. Crim. App. 1995). Whether the defendant’s actions were the proximate cause of the victim’s death is a factual issue to be determined by the jury. Id. at 775. It is true that the victim would not have died if the ticket booth attendant had not sold her a ticket to ride the Hawk or if the ride operator had not permitted the victim to ride, had properly checked the security of her restraint, or had allowed the victim to get off the ride when she asked. However, none of these facts would have led to the victim’s death if the safety restraint system was working properly and the ride was prevented from operating without the victim’s seat restraint being secured. The risk of death preceded the actions of the ticket booth attendant and ride operator. The victim’s death was the natural and probable result of the defendant’s recklessness. Thus, the evidence was sufficient to prove causation. -27- In summary, we conclude that the evidence was sufficient to support the defendant’s conviction for reckless homicide. II. CONSTITUTIONALITY OF RECKLESS HOMICIDE STATUTE The defendant contends that our reckless homicide statute is unconstitutionally vague as applied to him because, in the absence of any state regulations governing amusement ride safety or other established standard of care, the defendant did not have notice that his conduct could subject him to criminal liability. He does not argue that the statute is unconstitutional on its face; rather, he argues that the state failed to provide a reasonable standard of care, the violation of which subjected him to criminal sanction. Thus, the defendant argues, his conviction for reckless homicide violated the fair warning requirement embodied by the due process clause of the Fourteenth Amendment to the United States Constitution. The defendant acknowledges that he failed to raise this issue in his motion for a new trial, explains that his counsel only recognized the propriety of this issue while preparing his appellate brief, and asserts that he is entitled to relief under plain error review. The state contends that the issue is waived and that, because there is no plain error, the defendant is not entitled to relief under plain error review. Because the defendant failed to raise this issue in his motion for a new trial, he has waived the issue, Tenn. R. App. P. 3(e), and is only entitled to relief on its basis if plain error has occurred, Tenn. R. Crim. P. 52(b). Under Tennessee Rule of Criminal Procedure 52(b), appellate courts can consider an error that was not raised in the motion for new trial when that error “has affected the substantial rights of the accused” and when consideration of the error is “necessary to do substantial justice.” When deciding whether an error constitutes “plain error” we are to consider the following factors: (a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is necessary to do substantial justice. State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)) (footnotes omitted). We conclude that consideration of this issue is not necessary to do substantial justice because no clear and unequivocal rule of law was breached. The “fair warning requirement” embodied in the due process clause prohibits holding an individual “criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954). In State v. Butler, 880 S.W.2d 395 (Tenn. Crim. App. 1994), this court rejected the argument that the culpable mental state described by the criminal negligence definition in Tennessee Code Annotated section 39-11-202(d) was unconstitutionally vague. The court explained: -28- In simple terms, the statutory definition of criminal negligence relates to (1) the defendant’s conduct, (2) a substantial and unjustifiable risk existing at the time of the conduct or resulting from the conduct, (3) the defendant’s failure at the time of the conduct to perceive the risk, and (4) that failure being a gross deviation from the standard of care of an ordinary person under the circumstances. The Sentencing Commission Comments to T.C.A. § 39-11-302(d) state that the definition “is in line with case law of Tennessee on the degree of negligence required for criminal culpability.” In this respect, criminal negligence has historically been recognized as an appropriate standard for assessing criminal liability. See, e.g., State v. Davis, 798 S.W.2d 268, 271-72 (Tenn. Crim. App. 1990). We conclude that the statutory definition provides adequate notice of what conduct is covered. Butler, 395 S.W.2d at 397. Thus, the element of both criminally negligent and reckless homicide involving a “gross deviation from the standard of care” is not unconstitutionally vague. Regarding the defendant’s claim that it is unconstitutionally vague as applied to him, we note that the defendant has not cited any authorities that a state regulation is necessary to define the standard of care. The defendant also argues that the state’s citation in its brief to civil authorities to establish the standard of care, as well as the state’s argument that he was properly denied judicial diversion because of the deterrent effect his conviction will have on amusement park owners and ride operators in Sevier County, demonstrate the lack of an established standard of care. However, as we discussed previously, civil common law can be instructive in determining whether criminal negligence or recklessness has occurred, and the evidence sufficiently showed that the defendant’s actions constituted a gross deviation from the standard of care of an ordinary person under the circumstances. We see no clear and unequivocal rule of law that was violated by the defendant’s conviction. Thus, further consideration of this issue is not necessary to do substantial justice. III. EVIDENCE OF KEN MACE INCIDENT The defendant argues that the trial court erred in admitting evidence related to Ken Mace’s experience on the Hawk on July 22, 2003. Before trial, the defendant filed a motion in limine to exclude this evidence under Tennessee Rule of Evidence 404(b). At the hearing on the motion, Mr. Mace, Mr. Pribonic, Mr. Dickson, and Ted Martin testified, and their testimony related to the events of July 22, 2003, was substantially the same as it was during trial. The defendant also called the defendant’s niece, Paulette Martin, at the motion hearing. She corroborated Ted Martin’s testimony that the defendant was in West Tennessee on July 22, 2003. The state presented evidence of another witness, Robert Butler, who said his harness came loose while he was riding the Hawk in August or September 2003. At the conclusion of the hearing, the court ruled that evidence of the July 22, 2003 incident involving Mr. Mace was admissible, stating that the evidence was relevant to the issues of the mental state requirement of the offense, causation, and identity. The trial court -29- excluded evidence involving Mr. Butler on the basis that the circumstances surrounding this incident were not established by clear and convincing evidence. Tennessee Rule of Evidence 404(b) prohibits the introduction of evidence of other crimes or acts, except when the evidence of other acts is relevant to a litigated issue, such as identity, intent, or motive, and its probative value is not outweighed by the danger of unfair prejudice. The rule states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for some other purpose. The conditions which must be satisfied before allowing such evidence are: (1) The court upon request must hold a hearing outside the jury’s presence; (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling and the reasons for admitting the evidence; (3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and (4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). The purpose of the procedural requirements of Rule 404(b) is to prevent the admission of a prior act of the defendant which has no relevance except to prove the defendant’s character and that the defendant acted in conformity with that character in committing the crime charged. See Tenn. R. Evid. 404(a); DuBose, 953 S.W.2d at 653; Neil P. Cohen et. al, Tennessee Law of Evidence § 4.04[7][a] (5th ed. 2005). We review a trial court’s ruling on evidentiary matters under Rule 404(b) for abuse of discretion, provided the trial court has substantially complied with the procedural prerequisites of the rule. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). If the court did not substantially comply with the procedure, its decision is not entitled to deference by the appellate court. See id. at 653. We conclude that the evidence was admissible non-character evidence. The evidence was relevant to the mental state element of the crime, as the evidence indicates the defendant’s awareness that the safety features of the ride were not functioning properly. The evidence established that, in the least, the defendant was aware that several months before the victim’s death, someone’s seat restraint “came loose” while on the ride, even though the ride was not supposed to start unless all restraints were secure. Evidence that the defendant examined the ride after this incident and did not consult Zamperla is also circumstantial evidence that the defendant was aware of the condition with the jumper wires. Further, as the trial court stated, the evidence is relevant to the issue of identity. -30- Evidence that it was the defendant whom Rockin Raceway personnel called in response to this incident and that it was the defendant upon whom they relied to inspect and perform maintenance on the ride is circumstantial evidence that it was the defendant who altered the electrical panel. In sum, this evidence was not admitted to prove the character of the defendant. The trial court complied with the procedures in Rule 404(b) and determined that the evidence was admissible. The trial court did not abuse its discretion in admitting the evidence. The state also argues that the evidence is admissible because its theory of the case was broader than just that the defendant put the jumper wires on the ride; rather, the state argues that evidence that the defendant put the ride in operation following Mr. Mace’s incident is itself evidence of criminal conduct. The defendant responds that this argument amounts to an unlawful variance of the stated prosecution theory at trial. Having held that the evidence was sufficient to prove that the defendant did place the jumper wires on the Hawk and that evidence of the Mace incident is relevant, non-character evidence, we will not further address the defendant’s complaints. IV. ALIBI DEFENSE The defendant contends that the trial court erred in failing to instruct the jury on the defendant’s alibi defense. The state counters that the trial court did not abuse its discretion in failing to charge the jury on the alibi defense because the defendant’s presence at the scene of the victim’s death was not an issue in the case. The defendant filed a notice of alibi and stated his alibi as follows: “The Defendant was at his residence . . . on March 14, 2004 at the time of the accident. The defendant could not have committed the offenses . . . in the Indictment filed against him.” At the initial charge conference following the proof at the trial, defense counsel explained that the defendant sought an alibi instruction not only because he was not present when the victim fell off the Hawk but also because the evidence showed that he was not near the Hawk when its electrical panel was altered to bypass the safety mechanisms. After originally stating that it would charge the jury on the alibi defense, the court later decided not to include an alibi defense instruction with the jury charge. The following exchange occurred after defense counsel objected to the absence of an alibi defense instruction: [Court:] The Court has reviewed that again. The alibi defense, that is those witnesses who testified that Mr. Martin was not present when Ms. Alexander fell, that evidence is not contested by the State and in fact is conceded in their own proof that he was not present when she fell. The case law further goes on to say that an alibi instruction must be given where -31- the time and place of a particular act is important and that the defendant’s presence at that time and place is required if there’s proof that he was elsewhere. Those are not the facts that have been proven in this case. And I’ve re-examined that. I’ve re- examined the case law, and under the facts of this case, the Court does not feel that the defense of alibi, that is, the instruction should be given. That’s been adequately explained, presented and it’s uncontroverted [sic] Mr. Martin was not there at the time this lady fell .... .... [Defense counsel:] For the record, it is our position that Mr. Martin could not have been present at the time that this ride was altered as is the State’s theory; the predicate act was the placement of the jumper. We have properly raised in this proof that that was done at a time and place where he was not located - - in the State of Florida. We’re specifically requesting the instruction of alibi as relates to those events. [Court:] The Court will note your objection, but will not give an alibi instruction. In Tennessee, when the issue of alibi is raised and supported by credible evidence at trial, the trial court must give the jury an instruction on the alibi defense, whether requested or not. Christian v. State, 555 S.W.2d 863, 864 (Tenn. 1977). Our courts have held that a trial court’s failure to give an alibi charge, when the defendant is entitled to one, impacts the fundamental fairness of the trial and constitutes reversible error. Manning v. State, 500 S.W.2d 913, 915 (Tenn. 1973). However, “the evidence must first fairly raise the defense of alibi before [an appellate court] will reverse for failure to charge.” Id. (emphasis in original). We agree with the trial court that an alibi defense instruction was not warranted in this case. Black’s Law Dictionary defines “alibi” as “[a] defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the -32- relevant time.” Black’s Law Dictionary 72 (7th ed. 1999). As evidenced by this definition, traditionally, alibi evidence revolves around the location of the defendant at the time the crime was committed. This is further apparent from the Tennessee Rules of Criminal Procedure’s requirements of a defendant’s notice of alibi. In response to the state’s request of notice of alibi defense, a defendant seeking to offer an alibi defense must provide the state with the written notice of “the specific place or places at which the defendant claims to have been at the time of the alleged offense” and “the name and address of each alibi witness on whom the defendant intends to rely.” Tenn. R. Crim. P. 12.1(2)(A). When, as in the present case, the place and time of the offense have not been defined and are not essential elements for the state to prove, alibi is not a relevant defense. See, e.g., United States v. Erlenbaugh, 452 F.2d 967, 975 (7th Cir. 1971) (holding that defendant was not entitled to an alibi instruction because the defendant’s presence at a particular place at a particular time was not an element of the charged offense), aff’d on other grounds, 409 U.S. 239, 93 S. Ct. 477 (1972). The defendant’s original notice of alibi defense stating that he was at his home at the time the victim died and evidence of the same did not entitle him to an alibi defense because, as the trial court stated, the state did not dispute that fact. More importantly, based on the state’s theory, the defendant’s presence at the scene and at the time of the victim’s death was not relevant to the question of whether he was guilty of a homicide offense. Furthermore, the defendant mis- characterizes his defense and the evidence that he produced at trial as alibi in nature. His defense was that he could not have placed the jumper wires on the Hawk because they were there before the Hawk arrived at Rockin Raceway. The defendant presented a theory that contradicted the state’s theory of what occurred and led to the victim’s death. He presented this theory primarily through expert testimony regarding a defect in the ride. He did not provide evidence of his whereabouts at the time the criminal act occurred, largely because the exact time of the criminal act was not established. The defendant was not entitled to an alibi charge because the evidence did not properly raise an alibi defense. The trial court did not err in refusing to give the jury an instruction on alibi defense. V. JUDICIAL DIVERSION At the sentencing hearing, the state called Detective Rene Kendall of the Pigeon Forge Police Department. Detective Kendall testified that there were over seventy-five amusement rides at fourteen locations in Sevierville, Pigeon Forge, and Gatlinburg. He said the area is visited by millions of tourists each year. He said his investigation revealed that there were no inspections of amusement rides other than those done by the owners or operators. On cross-examination, Detective Kendall acknowledged that he had spoken with John Leonard, the owner of Smoky Mountain Speed Park, which he agreed was a reputable business in the community. He said he did not speak with Mr. Leonard about the contents of a letter Mr. Leonard wrote to the court, in which Mr. Leonard determined after the defendant’s trial that there were improper wires on a ride at his business of which Mr. Leonard had been unaware. He said he had no knowledge of this. Detective Kendall said that in his seventeen years as a police officer, Ms. -33- Alexander’s death was the only fatality from an amusement ride of which he was aware. He testified that there had been other incidents, one of which involved two children being dropped from a ride when a shaft broke, another which involved a mechanical bull, and others involving go-carts. He said he had no knowledge of incidents other than those in Pigeon Forge. The victim’s sister, Judy Sprinkles, testified that she and the victim’s son were on the Hawk with the victim when the victim fell to her death. She said the victim’s family had been devastated. She said that she, the victim’s son, and her sister Gail were still receiving psychological counseling. She said the victim’s husband was also distraught. She said the victim had two children. The defendant called the victim’s son, Cody Alexander. He testified that he did not see the defendant at the amusement park on the date the victim died. He said he was not able to see the defendant assisting patrons off the ride. The defense read into the record portions of several letters. These letters generally attested to the defendant’s positive character and actions. Some of the letters specifically asked the court to grant judicial diversion and probation. The presentence report included as attachments letters from the victim’s family members and a friend which generally attested to the victim’s good character and the impact of her death on them. The defendant argues that the trial court erred when it denied his request for judicial diversion. The defendant claims that the trial court erroneously considered the need to avoid depreciating the seriousness of the offense and failed to consider all of the proper factors other than the need for general deterrence. The state responds that the trial court did not abuse its discretion in denying diversion. A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty to a Class C, D, or E felony and has not previously been convicted of a felony or a Class A misdemeanor. See T.C.A. § 40-35-313(a)(1)(B). Judicial diversion allows the trial court to defer further proceedings without entering a judgment of guilt and to place the defendant on probation under reasonable conditions. Id. When the probationary period expires, if the defendant has completed probation successfully, then the trial court will discharge the defendant and dismiss the prosecution with no adjudication of guilt. See id. at (a)(2). The defendant may then apply to have all records of the proceedings expunged from the official records. See id. at (b). A person granted judicial diversion is not convicted of an offense because a judgment of guilt is never entered. See id. at (a)(1)(A). Judicial diversion is not a sentencing alternative for a defendant convicted of an offense. See T.C.A. § 40-35-104(c). Therefore, there is no presumption that a defendant is a favorable candidate for judicial diversion. See State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). When a defendant challenges the manner of serving a sentence, this court conducts a de novo review of the record with -34- a presumption that “the determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d). However, when the accused challenges the trial court’s denial of a request for judicial diversion, a different standard of appellate review applies. Because the decision to grant judicial diversion lies within the sound discretion of the trial court, this court will not disturb that decision on appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). An abuse of discretion exists if the record contains no substantial evidence to support the denial. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983); Bonestel, 871 S.W.2d at 167. In determining whether to grant judicial diversion, the trial court must consider (1) the defendant’s amenability to correction; (2) the circumstances of the offense; (3) the defendant’s criminal record; (4) the defendant’s social history; (5) the defendant’s physical and mental health; (6) the deterrence value to the defendant and others; and (7) whether judicial diversion will serve the ends of justice. Electroplating, 990 S.W.2d at 229; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); Bonestel, 871 S.W.2d at 168. In addition, “the record must reflect that the court has weighed all of the factors in reaching its determination.” Electroplating, 990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should state in the record “the specific reasons for its determinations.” Parker, 932 S.W.2d at 958-59. If the trial court “based its determination on only some of the factors, it must explain why these factors outweigh the others.” Electroplating, 990 S.W.2d at 229. In the present case, the trial court made extensive findings on the record relative to its sentencing determination. The court first examined the issue of the length and manner of service of the sentence. In so doing, it recited the relevant considerations, made findings relative to the enhancement and mitigating factors, and weighed the factors in arriving at its four-year probationary sentence. The court then turned to the issue of judicial diversion. In addressing the issue of diversion, the trial court said the following: The next consideration is the application for judicial diversion. The Court has considered all of the circumstances of the offenses, the entire record that I’ve discussed already. The Court must also look to the seriousness of this offense. Ms. June Alexander died. Nothing can be more serious. A family devastated, still undergoing counseling for the emotional trauma they suffer. A lady died right before the eyes of her young son and sister who were sitting beside her. So the Court must deny the application for judicial diversion on that ground, to avoid depreciating the seriousness of the offense. Evidence was also presented that this community has more than 74 amusement rides, some of which have caused injuries in the past. That there is no official method or – or agency that inspects -35- rides for safety, or for any other reason, for that matter. That is a matter for the legislature to determine, as to whether or not such inspections should be done, that inspectors should be hired. That is not a matter for this Court. But the Court must consider that there is no such inspection scheme, so that there must be a deterrent----that is, an encouragement for those who operate amusement rides, particularly those that – that may be somewhat dangerous----to make sure that those rides are operated safely, maintained properly, and that there is [a] deterrent factor. So that the Court, for that reason, as well, denies the application for judicial diversion. Upon review, we discern some shortcomings in the trial court’s findings. First, the court placed determinative weight on factors related to the offense without considering the factors related to the defendant himself. The trial court made no comment on the record when addressing the question of diversion that it had considered the defendant’s amenability to correction, his criminal record, his social history, his physical and mental health, and the deterrence value to the defendant. Although the court made findings which were pertinent to some of these factors in determining the length and manner of service of the sentence, the court never acknowledged that it considered and weighed these factors in denying diversion. Second, although the court made specific mention of the factors to be considered in determining the length and manner of service of the sentence, the court did not mention the factors which must be considered in an application for judicial diversion. Although these factors are similar, there are distinctions. Compare T.C.A. §§ 40-35-102, -103, -210 (stating considerations relevant to determining the length and manner of a defendant’s sentence) with Electroplating, 990 S.W.2d at 229 (listing factors relevant to granting or denying judicial diversion). Moreover, in the case of sentencing, the standard with which the court must comply in explaining its determination is less exacting than when the court denies an application for judicial diversion. Under sections § 40-35- 210(b) and (e), in determining length and manner of a sentence, a trial court need only consider factors relevant to that case and state orally or in writing what factors were considered and the reasoning behind its decision. Under Electroplating, 990 S.W.2d at 229, the trial court considering judicial diversion must address and weigh all the factors relevant to judicial diversion. See also Parker, 932 S.W.2d at 958-59 (stating that court denying judicial diversion is required to give specific reasons for a denial of diversion). The state urges us to hold that the court’s earlier consideration of the defendant’s personal characteristics was a sufficient acknowledgment. However, given the distinct factors to be considered and the requirements of acknowledgment and weighing of the diversion factors, we are not prepared to hold that the trial court made an adequate, affirmative showing of its consideration and weighing of all of the relevant considerations. Additionally, we believe that the trial court erred in denying diversion to avoid depreciating the seriousness of the offense on the basis that the crime involved a death which traumatized the -36- victim’s family. We recognize that the need to avoid depreciating the seriousness of the offense may be considered in whether judicial diversion will serve the ends of justice. However, the fact that the crime involved a homicide is not an appropriate basis to deny diversion. Our legislature has provided that reckless homicide is one of the offenses for which judicial diversion may be granted. See T.C.A. § 40-35-313 (defining offenses excluded from pretrial diversion); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997) (holding that trial court abused discretion in denying judicial diversion based upon seriousness of offense of aggravated perjury, an offense which was statutorily eligible for diversion, without considering the defendant’s personal characteristics). Having determined that the trial court erred in its analysis, we are still able to determine “whether the trial court reached the correct result notwithstanding its failure to explain its reasoning.” Electroplating, 990 S.W.2d at 229. First, we note that several factors weigh in favor of granting judicial diversion. The record reflects that the defendant was fifty-seven years old at the time of sentencing and had no prior criminal history. He was in good physical and mental health and had never abused alcohol or drugs. He was married, had a history of gainful employment, and was honorably discharged from the Air Force after six years of active duty. He was the father of an adult daughter. The defendant had the support of several friends and members of the community, many of whom attested in letters to the defendant’s generosity, good character, and involvement with his church. Nothing in the record indicates that the defendant would not be amenable to correction or that his interests would not be served by diversion. Despite these positive factors, there are also factors that weigh against granting judicial diversion. The circumstances of the offense do not favor diversion. The defendant was the general manager of an amusement facility which operated a thrill-seeking ride which had been altered to override the safety mechanisms in place to prevent the machine from operating if patrons were in danger of falling to their death. The victim was killed in such a fall in front of her child and sister, who were also on the ride. Despite reckless homicide being an offense for which judicial diversion is available, these facts are particularly troubling. Likewise, the particular need to deter others from unsafe practices and the interests of the public are served by ensuring that amusement rides are safely maintained, particularly given lack of oversight that the state and the City of Pigeon Forge have assumed. The trial judge properly considered deterrence as a factor within the specific context of the community’s amusement ride industry. See State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997) (holding that trial court properly considered the particular need for deterrence in a vandalism case in the context of a labor dispute that led to criminal acts). Balancing these competing considerations, we conclude that the defendant was, in many respects, an optimal candidate to receive judicial diversion based upon his positive personal characteristics, including his history of productive citizenship and the strong indicators of his amenability to correction. However, we cannot conclude that the defendant’s exemplary lifestyle outweighs the circumstances of the offense, the need for deterrence, and the interests of the public. The defendant’s recklessness endangered the lives of many people and cost the victim her life. Also, the Hawk had several problems from the time of its arrival at Rockin Raceway, and, yet, the defendant, who was responsible for the safety of the rides, did all he could to keep the ride in -37- operation. The public places a high level of trust in amusement ride operators, and those in the amusement ride industry must know that they will be held accountable for their actions that risk the public’s safety. Moreover, we give the deterrence factor great weight, considering the apparent financial motivation for the defendant’s crime, the size of the amusement ride industry in the defendant’s community and likelihood that others will be motivated to commit similar crimes, and the publicity surrounding the defendant’s case. See State v. Hooper, 29 S.W.3d 1, 10-12 (discussing circumstances relevant to deterrent value of a sentence). A grant of diversion would subvert the interests of the public and the need to deter others from similar dangerous conduct. We conclude that the defendant is not entitled to judicial diversion. CONCLUSION Based on the foregoing and the record as a whole, we affirm the judgment of the trial court. ___________________________________ JOSEPH M. TIPTON, PRESIDING JUDGE -38-	01-03-2023	10-08-2013
https://www.courtlistener.com/api/rest/v3/opinions/3036165/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT HALE; JOSHUA HALE; NAVA  S. SUNSTAR; BUTTERFLY SUNSTAR, Plaintiffs-Appellants, v. GALE NORTON, Secretary of the Interior; GARY CANDELARIA, Superintendent, Wrangell-St. Elias National Park and Preserve; HUNTER SHARP, Chief Ranger, Wrangell-St. Elias National Park No. 03-36032 and Preserve; DEPARTMENT OF THE D.C. No. INTERIOR; NATIONAL PARK SERVICE; FRAN MAINELLA, Director of the  CV-03-00257-A- RRB National Park Service; MARCIA BLASZAK, Acting Regional Director OPINION of the National Park Service; all in their official capacities, Defendants-Appellees, NATIONAL PARKS CONSERVATION ASSOCIATION; THE WILDERNESS SOCIETY; ALASKA CENTER FOR THE ENVIRONMENT, Defendants-Intervenors- Appellees.  Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding Argued and Submitted July 12, 2005—Anchorage, Alaska 1549 1550 HALE v. NORTON Filed February 9, 2006 Before: Alfred T. Goodwin, Melvin Brunetti, and William A. Fletcher, Circuit Judges. Opinion by Judge William A. Fletcher HALE v. NORTON 1551 COUNSEL Russell C. Brooks and James S. Burling, Pacific Legal Foun- dation, Sacramento, California, for the plaintiffs-appellants. Matthew J. Sanders, United States Department of Justice, Washington, D.C., for the defendant-appellee. Robert W. Randall and Rebecca L. Bernard, Trustees for Alaska, Anchorage, Alaska, for the defendants-intervenors- appellees. 1552 HALE v. NORTON OPINION W. FLETCHER, Circuit Judge: In 2002, plaintiffs-appellants (collectively “the Hales”) pur- chased 410 acres of land near McCarthy, Alaska. Their prop- erty is completely surrounded by the Wrangell-St. Elias National Park and Preserve (the “Park”), which was created in 1980. The Hales gain access to their property over what used to be the thirteen-mile McCarthy-Green Butte Road (the “MGB road”). In 1938, the Alaska Road Commission listed the MGB road as “abandoned.” All of its bridges have washed away, and the effects of vegetation and erosion have reduced it to little more than a trail. The house on the Hales’ property burned down in the spring of 2003. During the course of rebuilding, the Hales used a bulldozer to bring in supplies over the MGB road with- out first seeking authorization from the National Park Service (“NPS”). Shortly thereafter, the NPS posted a public notice stating that no motorized vehicles except snow machines could use the MGB road. In July 2003, the Hales contacted the NPS superintendent to request a permanent permit to trav- erse the MGB road with a bulldozer and a trailer. The superin- tendent promptly responded, offering to assist the Hales in preparing the necessary applications for a right-of-way per- mit. Two months later, in September 2003, the Hales submit- ted an “emergency” application for a temporary permit, asserting that they needed to transfer supplies before “freeze up.” The NPS responded by letter, requesting more information about the nature of the emergency and the proposed bulldozer use. The letter noted that other inholders in the Park had used bulldozers for access in the winter months when the frozen ground and snow cover protected the ground from damage. The Hales responded in writing, but did not provide all of the requested information. The NPS then informed the Hales that HALE v. NORTON 1553 an environmental assessment (“EA”) would be required before the agency could grant a permit for bulldozer use. The NPS explained that it did not regard the situation as falling within the emergency exception to the requirements of the National Environmental Policy Act (“NEPA”), as set out in 40 C.F.R. § 1506.11. In a series of contacts in September and October 2003, the NPS offered to prepare an EA and make a decision in approx- imately nine weeks. It also offered to waive the expense of conducting the EA. The Hales did not provide the information the NPS requested in order to conduct the EA. Instead, in November 2003, they filed this suit. They sought an injunc- tion requiring the NPS to provide what they deemed adequate and feasible access to their property, and a declaratory judg- ment that the NPS was violating their right-of-way over the MGB road by requiring a permit. They also sought a declara- tory judgment that issuing a permit for temporary use of the MGB road did not constitute a major federal action subject to the requirements of NEPA. The Hales moved for a Temporary Restraining Order (“TRO”) and a preliminary injunction. The district court denied the motion for the TRO and dis- missed the case for lack of subject matter jurisdiction. The court held that even if the Hales had a valid right-of-way over the MGB road, their use of the road was subject to reasonable regulation by the NPS. Consequently, the Hales were required to apply for a permit regardless of any right-of-way they might possess. Since the NPS had not acted on the Hales’ per- mit application, the district court held that it lacked jurisdic- tion under the Administrative Procedure Act, 5 U.S.C. § 704, because there was no final agency action to review. II. Standard of Review We review de novo dismissals for lack of subject matter jurisdiction. Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1111 (9th Cir. 2003). 1554 HALE v. NORTON III. Jurisdiction [1] We agree with the district court that the Hales’ ability to use the MGB road within the Park is subject to reasonable regulation. In United States v. Vogler, 859 F.2d 638 (9th Cir. 1988), we decisively rejected the argument that the NPS lacks the power to regulate travel to an inholding across federally protected land. In Vogler, an inholder in the Yukon-Charley Rivers National Preserve in Alaska sought to drive heavy equipment over a claimed R.S. 2477 trail without a permit. Id. at 640-42. Assuming, without deciding, that the trail qualified as a right-of-way, we held that the government could never- theless regulate the inholder’s use of the trail: Congress has made it clear that the Secretary has broad power to regulate and manage national parks. The Secretary’s power to regulate within a national park to “conserve the scenery and the nature and his- toric objects and wildlife therein . . . .” applies with equal force to regulating an established right of way within the park. . . . [T]he regulations here are neces- sary to conserve the natural beauty of the Preserve; therefore, they lie within the government’s power to regulate national parks. Id. at 642 (quoting 16 U.S.C. § 1). Consequently, even if the Hales have a valid right-of-way over the MGB road — which we do not decide — the existence of that right-of-way would not shield them from reasonable regulation by the NPS. [2] The Alaska National Interest Lands Conservation Act (“ANILCA”) provides limited access rights for inholders in the absence of a right-of-way, but it also contemplates reason- able government regulation. Under ANILCA, inholders are entitled to “such rights as may be necessary to assure ade- quate and feasible access” to their land, but these rights are “subject to reasonable regulations issued by the Secretary to HALE v. NORTON 1555 protect the natural and other values of such lands.” 16 U.S.C. § 3170(b). [3] We also agree with the district court that it was without jurisdiction to reach the merits of the Hales’ suit. The Admin- istrative Procedure Act provides for judicial review only of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Because the permitting process had not resulted in a final action at the time of the Hales’ suit, the district court properly dismissed the suit for want of jurisdic- tion. Any judicial challenge may be brought only after final agency action. AFFIRMED.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/478031/	803 F.2d 454 Fed. Sec. L. Rep. P 92,994, 21 Fed. R. Evid. Serv. 1248Jennie VUCINICH, Plaintiff/Appellant,v.PAINE, WEBBER, JACKSON & CURTIS, INC., a DelawareCorporation, and Philip F. Moore, Defendants/Appellees. No. 85-5631. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 10, 1986.Decided Oct. 23, 1986. Allen J. Capeloto, Richard L. Rubin, Capeloto & Rubin, San Francisco, Cal., for plaintiff/appellant. George M. Garvey, Munger, Tolles & Olson, Los Angeles, Cal., for defendants/appellees. Appeal from the United States District Court for the Central District of California. Before CANBY, REINHARDT, and JOHN T. NOONAN, Circuit Judges. NOONAN, Circuit Judge. 1 Jennie Vucinich brought this action against Paine, Webber, Jackson, and Curtis, Inc. (Paine, Webber) and Philip F. Moore, alleging violation of sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b) and 78t(a), common law fraud, breach of fiduciary duties by a broker, professional negligence, and negligent supervision of a broker. The district court directed a verdict for the defendants. We reverse and remand for trial. 2 Events. On January 11, 1977 Jennie Vucinich consulted Philip F. Moore, a broker with Paine, Webber about possible investments. Vucinich was a forty-five year old housewife, the mother of four children, married to the self-employed operator of a gas station. She had had a high school education plus three semesters at Marshall College, West Virginia, where she majored in home economics. The annual income of the Vuciniches at the time was $30,000, although the family income had varied widely and Mr. Vucinich's salary was twice what it had fairly recently been. The family lived in Cathedral City, California in the desert area. In 1975 or 1976 Jennie Vucinich had inherited from her parents $40,000 in common stocks, and, becoming a client of Paine, Webber in November 1976, she had undertaken to see what should be done about them. In addition, she had $20,000 in cash recently received from the sale of her parents' house. 3 Vucinich told Moore that she was not interested in gambling as one gambles in Las Vegas. She was expressly interested in capital gains. She was least interested in speculation, defined by Moore as "short-term, high-risk investments." According to Moore's own testimony, he told her that he too had a low opinion of gambling and that he did have advice for her. She should put the $20,000 into "a safe, no risk investment," which he identified as a tax-deferred annuity. She should take the "$40,000 that was already at risk in the stock market" and "keep that money in a stock market type risk situation." Specifically, he advised her to sell the inherited portfolio and to go into selling short. Vucinich accepted the advice. 4 Selling short was a new concept to Vucinich. Moore told her that it meant selling something before you bought it. He also told her that a short seller must "put up collateral as good faith." At least these are the only impressions she retained of his instructions. She knew that she was betting against the market. She realized from what he said that if the market went up and the stocks she had sold went up, she would lose. Moore did not tell her that short sales were speculative. He did not differentiate either in his speaking to her or in his testimony at the trial between the risks run by a purchaser of common stock and the risks run by a short seller. 5 Specifically, Moore did not inform Vucinich that at the heart of a short sale was a credit transaction and that the sale was only possible because Paine, Webber or some unidentified third party would lend her the stock she sold. The use of the term "collateral" did not alert her to her role as debtor; she misunderstood collateral to be a token of good faith. Nor did Moore enlighten her on margin calls or on the 50 percent margin requirements then in effect. He recommended that she make $40,000 of short sales and use the $40,000 from the sale of her portfolio as collateral. The effect of this recommendation, which she followed, was that she was insulated from a margin call until she had lost $20,000. She was uninformed about this insulation. 6 Moore was supervised at the Palm Desert office of Paine, Webber by Richard Kite, branch manager of the office and a vice president of Paine, Webber. His duties included assuring compliance by the brokers with the securities laws, and he had six to eight brokers under his supervision. Every quarter he reviewed the ledgers kept for their clients, and his approval was necessary for every short sale made through the office. Attached to each ledger was a "client profile," indicating the investment objectives of the client. According to Kite, it was "very important" for him as a supervisor to be sure that what was transacted for a client fitted the client's needs and investment objectives. According to Moore, Kite never discussed with him the suitability of short selling by Vucinich. 7 As Moore further testified, he promised Vucinich to "monitor" her account, and, again according to him, he kept this promise. He did not explain to her what "monitoring" an account meant. Although Vucinich did not rubber stamp all his suggestions, he chose the stocks she should sell short, and she followed his advice as to what to sell short and when to sell short. Vucinich was unable to interpret the statements she received from Paine, Webber and, according to Vucinich, was unable to determine the changing value of her new portfolio from the statements. She has testified that when she asked Moore for the value of the account, he put her off with the observation that the statements were always out of date. 8 By 1978 Vucinich knew that, contrary to Moore's prediction, the stock market had not gone down. According to Moore's own testimony, he visited her family socially in the summer of 1978, and her husband asked, "Well, dummy, are we still losing money?" and Moore replied, "Well, yeah, the market's gone against us, but, you know, the indicators are that the market will fall and I don't think it's anything to worry about." 9 In July 1979 there was a margin call and Moore recommended closing out two positions, keeping all others. Vucinich followed this advice. In November 1979 she wanted to close out completely, but Moore advised staying in. There was another margin call in January 1980. Again Vucinich wanted to close out completely and Moore advised her not to do so. She again accepted his recommendation and in February 1980 put up $2,500 more as collateral. Finally, in September 1980 on his advice, she closed out. When at that time she asked Moore, "Why did you give me so many wrong answers?" her testimony is that he replied: "if he knew how to make money in the stock market that he would not be working as a broker." She received a total of $8,273.93 from her Paine, Webber account. She filed the present suit on June 11, 1982. 10 The defendants were granted summary judgment on May 9, 1983. On appeal to this court that judgment was reversed. Vucinich v. Paine, Webber, Jackson & Curtis, Inc. (Vucinich I), 739 F.2d 1434 (9th Cir.1984). A puzzling feature of the court's opinion is the statement in paragraph one, "We affirm in part and reverse in part." Nothing appears in fact to be affirmed. The opinion concluded: "Reversed and remanded." The court noted that Vucinich's deposition stated that "she was not experienced in the market, was unaware of the risks of the short sell investment and relied extensively on the advice of her broker." The court also took note of Vucinich's argument that the defendants were reckless as a matter of law in the recommendation to sell short, in failing to tell her that the strategy was speculative, and in failing to take into account her stated desire to have capital gains and to avoid speculation. The court held that the facts before the court, presented by depositions, "were sufficient to raise factual questions as to defendant's state of mind and the factors determinative of duty to the plaintiff." Summary judgment was therefore inappropriate. 11 The court in Vucinich I also ruled on the defendants' contention that the federal securities and common law fraud claims were barred by a three year statute of limitations, Cal.Civ.Proc.Code, Sec. 338(4) (West Supp.1984), Briskin v. Ernst & Ernst, 589 F.2d 1363, 1365 (9th Cir.1978), and that the negligence and breach of fiduciary duty claims were barred by a two-year statute of limitations. Cal.Civ.Proc.Code Sec. 339(1) (West Supp.1984). The defendants pointed to the fact that suit had been commenced more than three years after Vucinich "had become aware that the market was running against her." The court itself observed that by June 1980 she had received "several margin calls." On the other hand, the court noted Vucinich's contention that she could not decipher the statements she got from Paine, Webber and "that she relied on Moore's continuing reassurance that a longer time was needed to realize gains from his strategy." The court concluded: "Whether the events existing as of June 1979 and June 1980 were sufficient to put Vucinich on notice and whether the reassuring statements of defendants reasonably affected that notice is a disputed question of fact requiring determination by the district court." 739 F.2d at 1437. 12 The case was accordingly remanded for trial. The district judge quashed a subpoena served on Paine, Webber and excluded a substantial part of the expert testimony offered by Vucinich as well as the plaintiff's offered testimony of a similar complaint against the Paine, Webber office in question. At the conclusion of the plaintiff's case, the district judge directed a verdict for the defendants on all counts. This appeal followed. 13 Issues: Was it error for the district court to direct a verdict? 14 Were the district judge's rulings on evidence and on the subpoena correct? 15 Analysis. 1. This case has returned to us on appeal from a directed verdict entered at the close of plaintiff's case. In determining whether a directed verdict is appropriate, our inquiry is identical to that of the district court. Jenkins v. Whittaker Corp., 785 F.2d 720, 729 (9th Cir.1986). We view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party to determine whether the evidence permits only one reasonable conclusion as to the verdict. See, e.g., Miller v. Republic National Life Ins. Co., 789 F.2d 1336, 1340 (9th Cir., 1986). 16 Because this case is before us for a second time on appeal, we are constrained by the "law of the case" established in Vucinich I. 17 [A] decision of a legal issue or issues by an appellate court establishes the "law of the case" and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. 18 Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833 (9th Cir.1982) (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). See also Gould v. Mutual Life Insurance Co. of New York, 790 F.2d 769, 774 (9th Cir.1986); Pubali Bank v. City National Bank, 777 F.2d 1340, 1342 (9th Cir.1985). In Vucinich I, we held that summary judgment on the section 10(b) claim was inappropriate because "the facts before the court were sufficient to raise factual questions as to defendant's state of mind and the factors determinative of the duty owed the plaintiff." 739 F.2d 1436. We also held that disputed issues of fact existed with regard to notice for purposes of the statute of limitations pertaining to all claims. Id. at 1437. 19 Because we found in Vucinich I that there were disputed issues of material fact, it followed that plaintiff was entitled to have those issues resolved by the jury if her evidence held up at trial and if no other issues foreclosed her claim. Our review of the record convinces us that the requisite evidence was produced and that it was error for the trial judge to prevent the case from going to the jury. 20 The defendants contend that the directed verdict was "based on the plaintiff's failure to identify any misrepresentation or omission of material fact." But the evidence actually presented went beyond what this court already held to present a factual issue as to "the duty owed the plaintiff." Under section 10(b) this court had already ruled explicitly: 21 "Vucinich presented evidence to the district court supporting her claim that the defendants owed her a high duty of care and had been reckless in fulfilling that duty." Vucinich I, 739 F.2d at 1436. 22 The law of the case determined that this evidence should go to the jury. 23 The defendants contend that Vucinich's trial testimony undermined her deposition testimony that as of June 1979 she was not "under the impression" that her short positions "had declined by any significant amount." Some of her trial testimony could be argued to go in this direction. Other parts of her testimony reinforced the thrust of her deposition that she was essentially in the dark about the extent of her losses. Ambiguity remained for resolution by the trier of fact. 24 The attempt by the defendants to explain the district court's actions is not persuasive and becomes even less persuasive when the transcript is read reciting the thoughts of the district judge in reaching the decision to direct a verdict. Strikingly, the judge makes no mention of the section 10(b), which, as defendants acknowledge, Vucinich I dealt with at length. The judge speaks as though the section 10(b) claim was not in his mind, unless it was meant to be precluded by the statement he makes on the statute of limitations, viz.: "And you have some real problems, real problems with the Statute of Limitations. So the motion for directed verdict is granted." That the statute of limitations issues should have been treated as a matter of law after they had been classified as matters of fact by this court is not a sustainable position. 25 2. In order to avoid further errors with regard to the conduct of the trial, we restate the law applicable to cases of this type. The statute of limitations under California law may be tolled by the reassurances of a broker to a client regarding matters relevant to possible misrepresentation. Twomey v. Mitchum, Jones, & Templeton Inc., 262 Cal.App.2d 690, 727-729, 69 Cal.Rptr. 222 (1968). If the plaintiff proves that she relied on Moore's promise to monitor her account and his advice not to worry in 1978, no statute of limitations began to run in 1978. If she proves that she relied on Moore's promise to monitor her account and his advice not to close out all her positions in July 1979, November 1979, and January-February 1980, no statute of limitations began to run at any of those dates, and none of her claims is barred by any applicable statute of limitations. 26 The law does not impose liability for fraud simply because a person is led to make investments that may have turned out to be unprofitable or unwise. To find for the plaintiff a jury must find that she relied on statements containing material omissions. Although Vucinich was informed by Moore that a short sale was a bet against the market, that she ran a risk, and that she might lose, and although he made no misrepresentation, the defendants are liable if Moore knowingly omitted material facts in what he said to her if such facts were necessary under the circumstances to make his statements to her not misleading. See Hayden v. Walston & Co., 528 F.2d 901 (9th Cir.1975). 27 In the circumstances of this case Moore had a duty to explain the nature of short selling to Vucinich in a way that she could understand what she was getting into. Failure to perform that duty would amount to reckless violation of Section 10(b) of the Securities Exchange Act. Kehr v. Smith Barney, Harris, Upham and Co., Inc., 736 F.2d 1283, 1286 (9th Cir.1984). Such failure would also create liability for constructive fraud under California law. Cal.Civ.Code Sec. 1575(1) (West 1982): Twomey, 262 Cal.App.2d at 720, 69 Cal.Rptr. 222. 28 In an explanation of the nature of short selling, the following information would have been relevant to Vucinich: that a short sale involved her borrowing stock that Paine, Webber had on hand; that maintenance of a short sale position required being able to meet margin calls; that her collateral would be drawn on by Paine, Webber and used up until it fell to the 50 percent margin requirement; that she would have to pay dividends if the borrowed stock paid dividends; that she would have to pay interest regularly as a debtor for the stocks borrowed; that the certain payment of interest and the probable payment of dividends would deplete her collateral and increase her vulnerability to a margin call; that short sales carry risks substantially different from ownership of common stocks; and that short selling is not normally what is meant by the phrase "capital gains objective." 29 For Moore to have fulfilled his duty, he would not have had to convey every bit of this information in exactly these terms but he would have to have conveyed the substance of this information in terms capable of being understood by someone of Vucinich's education and experience. 30 If Vucinich turned over to Moore the decisions as to which stocks she should sell short and when to sell them, and if during that period she routinely relied on his advice when to close out her short positions and did not have the education and experience to decide these matters herself, Moore was in a fiduciary relation to her and had a continuing duty to advise her of the nature and risks of short selling as set out in the preceding paragraph. Mihara v. Dean Witter & Co., Inc., 619 F.2d 814, 821 (9th Cir.1980); Twomey, 262 Cal.App.2d at 690, 69 Cal.Rptr. 222. If he failed to do so or he failed to monitor her account carefully and to advise her when the relative strength of the stock she had sold short appreciated so that her risk of a margin call was increased, Moore would also be liable for breach of his duty as a fiduciary under California law. Mihara, 619 F.2d at 821-822; cf. Leboce, S.A. v. Merrill, Lynch, Pierce, Fenner & Smith, 709 F.2d 605, 607 (9th Cir.1983). 31 If Moore should be liable for breach of fiduciary duty, Paine, Webber would also be liable for breach of fiduciary duty. Mihara, 619 F.2d at 814. If Moore should be liable for constructive fraud, Paine, Webber would be liable for his tort. Sharp v. Coopers & Lybrand, 649 F.2d 175, 184 (3rd Cir.1981), cert. denied 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). If Moore should be liable for violation of section 10(b), Paine, Webber would be liable for violation of section 20(a) of the Securities Exchange Act. Hecht v. Harris Upham & Co., 430 F.2d 1202, 1210 (9th Cir.1970). If Moore should be liable for violation of section 10(b) or of breach of fiduciary duty or of constructive fraud, or all of these acts, Kite may be found to have approved or ratified his acts so that Paine, Webber may also be liable for punitive damages. Hobbs v. Bateman Eichler, 164 Cal.App.3d 174, 193, 210 Cal.Rptr. 387 (1985). 32 Kite has testified that he had a duty to supervise Moore and a duty to approve short sales. Moore has testified that Kite never discussed Vucinich's investment objectives with him. If these witnesses are believed, Paine, Webber may also be found by a jury to have been negligent in its supervision of Moore. Hecht, 430 F.2d at 1216. Further, if expert testimony establishes that the professional standards of brokers were not observed by Moore, both Moore and Paine, Webber may be found liable for professional negligence. Cecka v. Beckman & Co., 28 Cal.App.3d 5, 11, 104 Cal.Rptr. 374 (1972). 33 3. We turn to the district judge's evidentiary rulings. Proffered evidence was excluded that would have related to another customer's complaint about short sales made by another broker in the Palm Desert office of Paine, Webber. The evidence might well have been confusing to the jury and prejudicial to the defendants; it was also hearsay. The trial court did not abuse its discretion in excluding it. Fed.R.Evid. 802. 34 The rulings excluding the proffered testimony of plaintiff's expert on the securities business present a different complexion. Testimony concerning the rules of the New York Stock Exchange and of the National Association of Securities Dealers was highly relevant and far from prejudicial "because the rules reflect the standard to which all brokers are held." Mihara, 619 F.2d at 823-824. The trial judge apparently confused these rules with federal law, as to which federal judges are the authority. Not being civil law, these rules were proper matters for expert testimony. Exclusion was an abuse of discretion. 35 The testimony excluded as to the suitability of the investments and the adequacy of the information conveyed was substantially the same as that already offered by expert deposition before the trial. Testimony otherwise admissible "is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704. Testimony as to whether in the understanding of the industry the defendant had "control" of Vucinich's account would also have assisted the trier of fact "to understand the evidence" and was admissible under Federal Rule of Evidence 702. Exclusion of this evidence was an abuse of discretion. 36 The district court also excluded expert testimony as to what the present value would be of the stocks in the portfolio Vucinich inherited. The established California measure of damages for breach of fiduciary duty "in advising plaintiff to switch into unsuitable investments" is the difference between what the plaintiff has now and what the plaintiff would have had on the date the fiduciary relation closed if plaintiff had retained the original portfolio and had received the benefit of its appreciation and dividends. Hobbs, 164 Cal.App.3d at 197, 210 Cal.Rptr. 387. California rejects the view that such damages are conjectural or speculative and that the plaintiff might have done worse "if left to her own devices." Twomey, 262 Cal.App.2d at 731, 69 Cal.Rptr. 222. If the plaintiff is entitled to such damages, she is entitled to prove them. Expert testimony was an appropriate way to introduce a mathematical calculation that could as easily have been introduced by stipulation. In excluding the testimony the trial court abused its discretion. 37 Finally Vucinich objects to the quashing of a subpoena duces tecum directed at the manager of Paine, Webber's Palm Desert office and served less than twenty-four hours before trial. The subpoena was overbroad, asking for material bearing on the other unrelated party's complaint. The district court did not abuse its discretion here. We are confident that a more narrowly drawn subpoena directed at obtaining the Paine, Webber policy and procedures manual will not be quashed. Vucinich is also entitled to have access to the annual reports of Paine, Webber for the purpose of assessing punitive damages if the case should reach this stage. Mihara, 619 F.2d at 824. Subpoena of those reports to show Paine, Webber's net worth would be entirely proper. Hobbs, 164 Cal.App.3d at 196, 210 Cal.Rptr. at 387. 38 Vucinich has asked that an order to show cause be issued why sanctions should not be imposed on defense counsel for their "deliberate invitation of reversible error" in the trial court. Vucinich has also asked for attorneys fees on this appeal and further, has requested that the case be assigned to a different trial judge. All of these requests are not unreasonable. In Vucinich I this court had held that the section 10(b) case presented an issue of fact and that the other claims were not necessarily barred by any statute of limitations. But defense counsel's arguments for a directed verdict did not cross the line into bad faith. In re Beverly Hills Bancorp, 752 F.2d 1334, 1340 (9th Cir.1984). In the very unlikely event that defense counsel's arguments for a directed verdict should in the future invite the district court to ignore the law of the case, this court is prepared to award sanctions the imposition of which would require a review of counsel's conduct throughout the case. In view of the thorough explanation of the applicable law set forth above, we do not believe it is necessary at this time to order reassignment of the case to another judge. 39 REVERSED AND REMANDED.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/76119/	323 F.3d 1314 UNITED STATES of America, Plaintiff-Appellee,v.Lisa HUNTER, a.k.a. Lesa Hunter, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Katina Summerset, a.k.a. Katina Smith, a.k.a. Katina Sherita Summerset, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Reddick Seymore, a.k.a. Eric Seymore, Defendant-Appellant. No. 01-11821. No. 01-11822. No. 01-11910. United States Court of Appeals, Eleventh Circuit. March 17, 2003. David Jonathon Joffe, Fort Lauderdale, FL, for Hunter. Louis Caruso, Law Offices of Louis Caruso, Miami, FL, for Summerset. Allen S. Kaufman, Law Offices of Allen S. Kaufman, P.A., Fort Lauderdale, FL, for Seymore. Suzan H. Ponzoli, Anne R. Schultz, Lisa A. Hirsch, Miami, FL, for United States in all cases. Appeals from the United States District Court for the Southern District of Florida. Before CARNES, MARCUS and SUHRHEINRICH, Circuit Judges. SUHRHEINRICH, Circuit Judge: 1 Defendants Lisa Hunter ("Hunter"), Katina Summerset ("Summerset"), and Reddick Seymore ("Seymore") (collectively "Appellants") appeal their sentences imposed following guilty pleas for conspiracy to make, utter, and possess counterfeit checks, in violation of 18 U.S.C. § 371. The principal issue on appeal is whether the district court erred in holding Appellants responsible for the entire amount of loss under U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(B) (1998).1 We conclude that the district court misapplied U.S.S.G. § 1B1.3 by failing to make particularized findings as to the scope of criminal activity undertaken by each Appellant. We therefore vacate Appellants' sentences and remand for further proceedings in accordance with this opinion. I. A. 2 Appellants were participants in a counterfeit corporate check cashing ring that operated in South Florida from January 1997 until August 2000. The ring was led by Maceo Spates and Clarence Glover, who were the primary individuals responsible for printing the counterfeit checks and disbursing those checks to check cashers or "runners." Under Spates and Glover were Ormando White, Nathaniel White, and Frantz Coffey, who found runners for Spates and Glover and sometimes drove the runners to cash the checks. Finally, there were the runners, approximately nineteen in all. Appellants were runners. 3 Seymore's presentence report states that on February 7, 2000, Seymore cashed a counterfeit Consumer Credit corporate check at a NationsBank branch in Broward County in the amount of $987.69. He had received the check from Ormando White. On May 1, 2000, Seymore cashed another counterfeit corporate check for $769.80. Seymore also admitted to agents that he cashed three other counterfeit checks he had obtained from White. Seymore indicated that he received one-third of the proceeds, one-third went to White, and the remaining third went to the printer of the checks. The probation officer calculated the total at $1,757.49. 4 Hunter's presentence report reflects that in 1997 Ormando White offered to help Hunter earn money. He took her to a bank and opened an account in her name, with money provided by White. Thirty days later, White deposited more money into the account. White also removed money from the account, and shared it with Hunter. On December 21, 1998, Hunter deposited a counterfeit corporate check in the amount of $2,500 into an account that she opened at a NationsBank branch in North Miami Beach. Hunter wrote a check on that account on the same date and received $400. She then wrote a check to Ormando White for $700, which White later cashed. On April 28, 2000, Hunter attempted to cash a counterfeit check at a NationsBank in the amount of $879.79, but exited the bank when the teller became suspicious. At her change of plea hearing, Hunter further admitted to having cashed checks for White since 1998. The probation officer calculated the amount cashed and intended to be cashed as totaling $3,379.79. 5 Summerset's presentence report reflects that she cashed a counterfeit corporate check on March 20, 2000, in the amount of $469.70, and another on April 18, 2000, in the amount of $1,849.79. On April 13, 2000, she attempted to cash a counterfeit corporate check in the amount of $2,469.79, but ran out of the bank when the teller became suspicious. On September 23, 1999, Summerset attempted to cash another counterfeit check in the amount of $848.79, but exited the bank when the teller became suspect. Summerset admitted to agents that since 1996 she cashed six to seven counterfeit checks totaling approximately $5,000. She identified Ormando White and an unindicted participant who worked as an assistant manager at a NationsBank. She also identified Karena Solomon and Miskea Smith Gray as runners. The probation officer calculated the amount cashed and intended to be cashed at $9,526.44. 6 The probation officer calculated the total actual loss of the entire conspiracy at $125,414.62. The probation officer determined that Appellants were each responsible for the loss related to the checks they personally cashed or attempted to cash, and not the total amount of loss of the conspiracy as a whole. The probation officer calculated each Appellants' base offense level at 6, pursuant to § 2F1.1(a) of the guidelines. See U.S.S.G. § 2F1.1(a) (1998). Hunter received an additional level for specific offense characteristics because she was found responsible for losses equaling $3,379.79. See U.S.S.G. § 2F1.1(b)(1)(B). Summerset received an additional two levels under § 2F1.1(b)(1) because she was found responsible for losses equaling $9,526.44. See U.S.S.G. § 2F1.1(b)(C). Seymore did not receive an additional level because the amount of checks he cashed was $1,757.49. See U.S.S.G. § 2F1.1(b)(1)(A).2 7 The Government filed objections, contending that each Defendant should be held accountable for the total amount of loss. Appellants countered they should only be held responsible for the checks they cashed or attempted to cash. The probation officer took the position that the government had not provided sufficient information to show that the defendants had the specific knowledge of the actions of their co-defendants to rise to the level of reasonable foreseeability. 8 Summerset also objected to the presentence report's calculation of her criminal history score. The presentence report assigned one point each for four different state criminal convictions. Summerset argued that her conviction in State Case No. 93-16177 for interference with custody related to her conviction in State Case No. 94-11316 for possession of marijuana because the two cases were consolidated for sentencing. Similarly, Summerset maintained that her conviction in State Case No. 97-5372 for grand theft was related to her conviction in State Case No. 99-11335 for petit theft because they had been sentenced together. Thus, Summerset argued that because she had been sentenced on two state cases at the same time, she should only receive a total of two points for the consolidated sentences instead of four points. In an addendum to her presentence report, the probation officer responded that the sentences were not related under U.S.S.G. § 4A1.2. because they were separated by an intervening arrest. 9 Hunter and Seymore also sought minor role reductions pursuant to U.S.S.G § 3B1.2. B. 10 The district court conducted three sentencing hearings and determined that Appellants each should be held responsible for the $125,000 in actual losses. At Hunter's sentencing hearing, the court stated that "given the scope of the check cashing ring that it was reasonably foreseeable that she would be involved in a scheme resulting in the loss of the 125,000 plus dollars." At Summerset's hearing, the court incorporated its previous ruling regarding Hunter. 11 At Seymore's sentencing hearing, the district court found that: 12 This was a ring. In a ring it's not unusual that the various participants in the ring would not necessarily know one another unless they're at the leadership level. I don't know if that should result in any conclusion to suggest that they still were not a part of a ring even though they might not have known the other members of the ring. 13 It's certainly reasonably foreseeable they would be aware of the fact they were participating in a larger scheme than their own individual conduct. Subsequently they should be held accountable for the larger amount. 14 The district court gave each Defendant a 7-level increase to the base offense level for a loss of $125,414.62. See U.S.S.G. § 2F1.1(H) (1998).3 15 The district court refused to treat Summerset's prior sentences as related under U.S.S.G. § 4A1.2 because the offenses were separated by intervening arrests. The district court also denied Hunter's and Seymore's request for minor role reductions, finding that both Defendants were average participants in the conspiracy.4 16 On appeal, each Appellant argues that the district court erred in attributing the entire amount of loss to him or her. Summerset also argues that her prior state convictions were related for purposes of § 4A1.2(a)(2). Hunter and Seymore contend that the district court erred in denying each a minor role reduction. II. A. 17 Section 2F1.1 of the Sentencing Guidelines, which applies to offenses involving fraud or deceit, requires the district court to increase the offense level if the dollar amount of the loss exceeds $2,000. U.S.S.G. § 2F1.1(b); see also United States v. Dabbs, 134 F.3d 1071, 1081 (11th Cir.1998) (holding that § 2F1.1 requires the district court to increase a defendant's offense level based on the loss attributable to that defendant). Further, the Guidelines provide that an offense level shall be determined on the basis of the following: 18 in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense[.] 19 U.S.S.G. § 1B1.3(a)(1)(B) (emphasis added). Thus, the district court may hold participants in a conspiracy responsible for the losses resulting from the reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy. Dabbs, 134 F.3d at 1082. See also United States v. Rayborn, 957 F.2d 841, 844 (11th Cir.1992) ("all losses caused by fraud or deceit which are governed by ... § 2F1.1 may be imputed to a defendant who was a member of the conspiracy which caused those losses"); United States v. Fuentes, 991 F.2d 700, 701 & n. 1 (11th Cir.1993) (per curiam) (limiting Rayborn to reasonably foreseeable acts of co-conspirators). 20 The limits of sentencing accountability are not coextensive with the scope of criminal liability, however, U.S.S.G. § 1B1.3, cmt. (n. 1); see also United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir.1999) (noting that this provision "unambiguously limits enhancements" under § 1B1.3(a)(1)(B)). Application Note Two sets out a two-pronged test. It makes a defendant accountable for the conduct of others that was both: (1) in furtherance of the jointly undertaken criminal activity; and (2) reasonably foreseeable in connection with that criminal activity. U.S.S.G. § 1B1.3, cmt. (n. 2). The Application Note further explains that 21 In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant's agreement). 22 Id. 23 That is, "to determine a defendant's liability for the acts of others, the district court must first make individualized findings concerning the scope of criminal activity undertaken by a particular defendant." United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993) (citing U.S.S.G. § 1B1.3, cmt. (n.2)); United States v. Bush, 28 F.3d 1084, 1087 (11th Cir.1994) (same); see also United States v. Campbell, 279 F.3d 392, 400 & n. 5 (6th Cir.2002) (same, and cases cited therein); United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995) ("This determination, as it goes to prong one of the test, must be made before the issue of foreseeability, prong two, is reached."). Only after the district court makes individualized findings concerning the scope of criminal activity the defendant undertook is the court to determine reasonable foreseeability. See Bush, 28 F.3d at 1087 (drug conspiracy); Studley, 47 F.3d at 574-75 (fraud case; citing Bush). 24 Application Note Two also provides guidance as to how the district court is to determine the scope of the defendant's agreement. It states that "the court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others." U.S.S.G. § 1B1.3, cmt. (n. 2). 25 Applying these principles to the case before us, it is clear that the district court erred in determining Appellants' relevant conduct. Although the district court made findings regarding reasonable foreseeability, it did not "first determine the scope of the criminal activity [Hunter, Summerset, and Seymore] agreed to jointly undertake." U.S.S.G. § 1B1.3, cmt. (n. 2). Rather, the court held simply that because each Defendant knew that he or she was part of a ring, he or she should be held accountable for all of the acts of all of the members. Yet the Guidelines establish that the fact that the defendant knows about the larger operation, and has agreed to perform a particular act, does not amount to acquiescence in the acts of the criminal enterprise as a whole. Campbell, 279 F.3d at 400, 401; Studley, 47 F.3d at 575. The district court erred in not making particularized findings as to the scope of each Appellants' agreement in the larger counterfeit check cashing operation. 26 The Government argues that each Defendant should be responsible for the entire loss because each pled guilty to Count 1, the conspiracy charge. As indicated above, this argument is at odds with the Sentencing Guidelines. Further, the Government maintains that Seymore is responsible for the total loss because he admitted to cashing several counterfeit checks and splitting the proceeds three ways between himself, recruiter White, and the printer of the checks. The Government also points out that Seymore admitted that he accompanied two of his codefendants when they cashed checks. 27 In the first place, the record reflects that Seymore did not join the conspiracy until 2000. He therefore cannot be held accountable for conduct that occurred prior to his entry into the joint criminal undertaking. U.S.S.G. § 1B1.3, cmt. (n. 2) ("A defendant's relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct[.]"). As to the three-way split of the proceeds, this act shows agreement only to the jointly undertaken activity in the cashing of those two checks. Finally, as to accompanying codefendants Summerset and Canute McLeod, the district court may or may not find that Seymore's conduct was an implicit agreement in those jointly undertaken criminal acts. 28 The Government argues that Summerset should be on the hook for the full amount because she admitted cashing approximately nine checks over a four-year period for White, and because she identified others involved in the conspiracy. Although these facts would support a finding that she is accountable for those nine checks, they do not automatically support a finding that Summerset agreed to, or acquiesced in the entire scope of the conspiracy. Further, the mere fact that Summerset identified other runners working for White is not enough to make her accountable for their conduct, unless the Government can point to some other conduct from which an agreement can be inferred. 29 On the other hand, Summerset's presentence report states that she introduced her roommate, codefendant Karena Solomon, to White, and that Solomon likewise agreed to cash counterfeit checks for White. Also, on one occasion Summerset accompanied White and Solomon to a NationsBank in Fort Lauderdale where Solomon cashed a counterfeit check for $5000. White received $3000, Solomon received $1500 and Summerset received $500. From Summerset's acceptance of the $500 it can be inferred that she agreed to jointly undertake in the cashing of that check. Again, however, the district court must make particularized findings on remand. 30 The Government contends that Hunter is equally accountable because she admitted opening an account in 1998 for White and depositing counterfeit checks thereafter. Again, this makes her responsible for the checks she cashed, but it does not necessarily suggest that Hunter knew the scale of the conspiracy of which she was a part, let alone that she agreed to the full extent of that criminal activity. Further, there is nothing in the presentence report or record to show that Hunter agreed to be part of the larger conspiracy. On remand the court will have to make particularized findings as to the extent of Hunter's agreement. 31 The Government points to illustration (c)(2) as supporting its position that Appellants are responsible for the entire amount of the loss. That illustration provides as follows: 32 Defendants F and G, working together, design and execute a scheme to sell fraudulent stocks by telephone. Defendant F fraudulently obtains $20,000. Defendant G fraudulently obtains $35,000. Each is convicted of mail fraud. Defendants F and G each are accountable for the entire amount ($55,000). Each defendant is accountable for the amount he personally obtained under section (a)(1)(A). Each defendant is accountable for the amount obtained by his accomplice under subsection (a)(1)(B) because the conduct of each was in furtherance of the jointly undertaken criminal activity and was reasonably foreseeable in connection with that criminal activity. 33 U.S.S.G. § 1B1.3, cmt. (n. 2(c)(2)). However, we think it actually disproves their argument. As example 2 demonstrates, a relevant factor in determining whether an activity is jointly undertaken is whether the defendant assisted in designing and executing the scheme. Studley, 47 F.3d at 575, 576. Unlike the Guideline example, there is no proof in this record that any of the Appellants assisted Spates and Glover in designing and executing the larger illegal scheme. Except for Summerset's act of introducing Solomon to White, there appears to be no proof that Appellants assisted White either, other than in the cashing of certain checks. 34 Rather, we find this case much more akin to the scenario in another illustration. It provides: 35 Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S's agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity imported by Defendant R. 36 U.S.S.G. § 1B1.3, cmt. (n. 2(c)(7)). The record establishes that like Defendant S, Hunter, Summerset, and Seymore agreed to cash certain checks for White, and also knew that he was part of a larger check cashing ring. Further, like Defendant S, it appears that Seymore's, Hunter's, and Summerset's involvement and agreement in the conspiracy may be limited to the checks each actually cashed. As this example shows, Appellants' mere awareness that White was involved in a much larger scheme is not enough to hold them accountable for the activities of the entire conspiracy. Studley, 47 F.3d at 575. 37 The Government's reliance on United States v. Hall, 996 F.2d 284 (11th Cir.1993) (per curiam) is equally misplaced. In Hall, the defendant and other participants were involved in a fraudulent scheme in which they would contact potential victims, inform them that they had won a large cash prize, and then tell the victims that before the prize could be sent, they would have to wire money to pay the taxes on the prize. The district court included in its determination of Hall's relevant conduct amount of fraud losses that were caused by others. This Court affirmed. Significantly, we noted that although the various participants in the scheme acted on their own behalf, each of the participants knew each other and was aware of the other's activities, and they aided and abetted one another by sharing lead sheets of potential victims and sharing telephones. Id. at 285-86. In other words, from the act of sharing lead sheets and telephones, an agreement to join in the larger scheme could be inferred. In this case, by contrast, the Government has not presented any evidence of sharing or mutuality from which an agreement in the larger criminal scheme can be inferred. See Studley, 47 F.3d at 576 (vacating the defendant's sentence on the grounds that there was insufficient evidence to establish that the defendant had agreed to participate in the fraudulent activities of other sales representatives because the defendant neither designed nor developed the telemarketing scheme, did not promote the scheme beyond his own sales efforts, was paid on a commission basis and received no share of the profits, and did not assist any of the other sales representatives); cf. United States v. Giang, 143 F.3d 1078, 1080-81 (7th Cir.1998) (holding that the defendant's "close collaboration with his cohorts established that the Hong Kong money scam was a joint undertaking"; although the defendant participated directly in defrauding one of three victims, he traveled with others from California to Wisconsin specifically to participate in the money scam, and he rented the car that facilitated the other fraudulent transactions); United States v. Martinez-Rios, 143 F.3d 662, 677-78 (2d Cir.1998) (holding that the district court's findings as to the defendant's involvement in the victim's tax loss were sufficient under Studley because the court relied on extensive commingling of funds and the interdependent nature of the fraudulent accounts). 38 In sum, because the district court did not make particularized findings regarding the scope of Appellant's agreements, as required by § U.S.S.G. § 1B1.3(a)(1)(B), we vacate Defendants' sentences and remand for resentencing. B. 39 Summerset argues that the district court erred when it calculated her criminal history score at 14 points instead of 10 points. She maintains that the court should not have counted her several state convictions separately under U.S.S.G. § 4A1.2. We review for clear error the finding that prior convictions are unrelated under § 4A1.2. United States v. Mullens, 65 F.3d 1560, 1565 (11th Cir.1995). 40 In calculating a criminal history score, prior sentences imposed for related convictions should be counted as one sentence. U.S.S.G. § 4A1.2(a)(2). Application Note 3 provides in pertinent part as follows: 41 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. 42 U.S.S.G. § 4A1.2, cmt. (n. 3). 43 The language of Note 3 is clear. In determining whether cases are related, the first question is always whether the underlying offenses are separated by an intervening arrest. This inquiry is preliminary to any consideration of consolidated sentencing, as reflected by use of the word "otherwise." United States v. Gallegos-Gonzalez, 3 F.3d 325, 327 (9th Cir.1993); see also United States v. Aguilera, 48 F.3d 327, 330 (8th Cir.1995) (same). This Court recently adopted this interpretation of the guideline. See United States v. Duty, 302 F.3d 1240, 1241-42 (11th Cir.2002) (per curiam) ("While this court has no published decision applying this `intervening arrest' rule, several of our sister circuits have applied the rule to hold that prior convictions are not related where the offenses underlying those convictions are separated by arrests.... We agree with these decisions. Because Duty's state drug offenses were separated by intervening arrests, those offenses are not related, and the district court properly applied § 4B1.1."). 44 Summerset was sentenced on May 24, 1994, for both interference with custody and importation of marijuana. She was arrested for the first offense on May 14, 1993, prior to committing the second criminal act on April 4, 1994. The drug charge was an intervening arrest that precluded a finding that the cases were related, despite the common sentencing hearing. 45 Similarly, on June 3, 1999, Summerset was sentenced for both an April 3, 1999, fraud conviction and a 1997 grand theft conviction. Her 1999 arrest for fraud occurred while she was on probation following her 1997 arrest for grand theft. Thus, the 1999 arrest for fraud was an intervening arrest. In short, the district court did not err in treating the four prior convictions separately and assigning criminal history points to each.5 C. 46 Hunter and Seymore argue that the court erred in denying each a minor role reduction because they were only check cashers and less culpable than other participants in the scheme. We review a district court's determination of whether a defendant qualifies for a minor role adjustment for clear error. United States v. DeVaron, 175 F.3d 930, 937-38 (11th Cir.1999) (en banc). 47 In De Varon, the en banc court stated two legal factors to guide the district court in its fact-finding inquiry under U.S.S.G. § 3B1.2. "First and foremost, the district court must measure the defendant's role against her relevant conduct, that is, the conduct for which she has been held accountable under U.S.S.G. § 1B1.3." Id. at 934. Next, "where the record evidence is sufficient, the district court may also measure the defendant's conduct against that of other participants in the criminal scheme attributed to the defendant." Id; see also id. at 945 (same). Because a defendant's role in the offense should be informed by these two principles, and we are remanding for a redetermination of each Appellants' relevant conduct, it is premature for us to rule on this issue today. We direct the district court on remand to review our decision in De Varon. III. 48 For all the foregoing reasons, we VACATE Appellants' sentences and REMAND to the district court for particularized findings regarding the scope of Defendants' agreement to participate in the fraudulent scheme and for resentencing in accordance with this opinion. Finally, the district court may also need to revise the amount of restitution imposed on each Appellant in light of its findings on remand. Notes: Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation 1 The 1998 version of the guidelines were utilized 2 All three defendants received an additional two levels due to the more than minimal planning involved in the scheme to defraud more than one victim under § U.S.S.G. § 2F1.1(b)(2). Thus, Hunter's total adjusted offense level was 9, Summerset's total adjusted offense level was 10, and Seymore's total adjusted offense level was 8. Each Defendant received a two-level reduction for acceptance of responsibility, giving Hunter a total offense level of 7, Summerset a total offense level of 8, and Seymore a total offense level of 6. With a total offense level of 8 and a criminal history category of VI, Summerset's guideline imprisonment range was 18 to 24 months. Based on a total offense level of 7 and a criminal history category of III, Hunter's guideline imprisonment range was 4 to 10 months. With a total offense level of 6 and a criminal history category of I, Seymore's guideline imprisonment range was 0 to 6 months 3 Thus, each Defendant received a total offense level of 13 (6 for the base offense level plus 7 for the specific offense characteristic). This increased Hunter's guideline imprisonment range to 18 to 24 months, Summerset's range to 33 to 41 months, and Seymore's range to 12 to 18 months 4 The district court sentenced Hunter to 24 months' imprisonment, a three-year term of supervised release, a $100 special assessment and restitution in the amount of $125,414.62. The court sentenced Summerset to 33 months' imprisonment, a three-year term of supervised release, a $100 special assessment and restitution in the amount of $124,465.12. Seymore was sentenced to 12 months' imprisonment, a three-year term of supervised release, a $100 special assessment and restitution in the amount of $128,870.86 5 Summerset's reliance onUnited States v. Dorsey, 888 F.2d 79 (11th Cir.1989) is misplaced. Dorsey is based on a prior version of U.S.S.G. § 4A1.2, cmt. (n. 3), which, prior to 1991 arguably appeared to define all cases consolidated for sentencing as "related." Gallegos-Gonzalez, 3 F.3d at 327-28 & n. 2. However, Note 3 was amended in 1991 to make it clear that sentences separated by intervening arrests are never related. Id.	01-03-2023	04-26-2010
https://www.courtlistener.com/api/rest/v3/opinions/481433/	808 F.2d 1512 Wittev.Justices Of The New Hampshire Superior Court 86-1749 United States Court of Appeals,First Circuit. 10/28/86 1 D.N.H. GRANTED; DENIED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3036125/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 03-4070 ___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Ricardo Martinez-Salinas, * Northern District of Iowa * Appellant. * [Unpublished] ___________ Submitted: October 5, 2004 Filed: October 12, 2004 ___________ Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges. ___________ PER CURIAM. Ricardo Martinez-Salinas (Martinez) appeals from the final judgment entered in the District Court1 for the Northern District of Iowa after he pleaded guilty to two counts of distributing drugs within 1,000 feet of a protected location, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). The district court sentenced appellant to concurrent terms of 78 months imprisonment. Counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing the district court plainly erred in assessing a firearm enhancement. In his pro se brief, 1 The Honorable Donald E. O’Brien, United States District Judge for the Northern District of Iowa. Martinez adopts the Anders argument, and adds that he received ineffective assistance during the plea negotiations and hearing. Martinez has also filed a Fed. R. App. P. 28(j) letter, arguing his sentence violates Blakely v. Washington, 124 S. Ct. 2531 (2004), because it was enhanced based on factual findings not made by a jury. For the reasons discussed below, we affirm the judgment of the district court. The Anders argument is without merit. Martinez abandoned the issue when, at sentencing, he and his counsel withdrew his objection to the presentence report’s (PSR’s) recommendation for a firearm enhancement. See United States v. Olano, 507 U.S. 725, 732-34 (1993) (claim relinquished below need not be addressed on appeal); United States v. Tulk, 171 F.3d 596, 600 (8th Cir. 1999) (issue deliberately waived below is not reviewed, even for plain error). Further, Martinez’s ineffective- assistance claim should be raised--if at all--in collateral proceedings, not on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). Martinez’s Rule 28(j) Blakely argument also fails. His plea agreement included stipulations as to drug quantity, protected location, and firearm possession. See Blakely, 124 S. Ct. at 2541 (nothing prevents defendant from waiving his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000); when defendant pleads guilty, government is free to seek judicial sentence enhancements so long as defendant either stipulates to relevant facts or consents to judicial factfinding); United States v. Lucca, 377 F.3d 927, 934 (8th Cir. 2004) (holding that Blakely was not implicated where defendant was sentenced based solely upon facts admitted as part of his guilty plea). We have also carefully reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75 (1988), and have found no nonfrivolous issues. Thus, we grant counsel’s motion to withdraw, and we affirm. ______________________________ -2-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3036065/	FILED NOT FOR PUBLICATION APR 06 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT XIU ER ZHOU, No. 07-72996 Petitioner, Agency No. A072-095-599 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 5, 2010 ** Before: RYMER, McKEOWN, and PAEZ, Circuit Judges. Xiu Er Zhou, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion. Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009). We deny the petition for review. * 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). The BIA did not abuse its discretion in denying Zhou’s motion to reopen as untimely because Zhou filed the motion more than twelve years after the BIA’s final decision, see 8 C.F.R.§ 1003.2(c)(2), and her evidence did not show that the family planning laws or enforcement of those laws in China has materially changed since her removal hearing, see Lin, 588 F.3d at 988. Further, “the birth of children outside the country of origin is a change in personal circumstances that is not sufficient to establish changed circumstances in the country of origin within the regulatory exception to late-filed” motions to reopen. Id. at 986 (quoting He v. Gonzales, 501 F.3d 1128, 1132 (9th Cir. 2007)). Accordingly, the BIA’s determination that Zhou failed to show a material change in country conditions in China, particularly in the Fujian province, was not “arbitrary, irrational, or contrary to law.” Id. at 988 (quoting He, 501 F.3d at 1131). Zhou’s contention that she should have been permitted to file a successive asylum application is foreclosed. See Lin, 588 F.3d at 989 (rejecting petitioner’s argument that, independent from her motion to reopen, she was entitled to file a free-standing successive asylum application). PETITION FOR REVIEW DENIED. 2	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3036197/	FILED NOT FOR PUBLICATION APR 09 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT STEPHEN C. JOHNSON, No. 07-55185 Petitioner - Appellant, D.C. No. CV-06-03541-ABC v. MEMORANDUM * ROY A. CASTRO, Respondent - Appellee. Appeal from the United States District Court for the Central District of California Audrey B. Collins, Chief District Judge, Presiding Argued and Submitted April 6, 2010 Pasadena, California Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges. Petitioner Stephen C. Johnson appeals the district court’s denial of his petition for a writ of habeas corpus. Petitioner contends that the state court erred by rejecting his claim that his confession was involuntary. Reviewing the district court de novo, Doody v. Schriro, 596 F.3d 620, 634 (9th Cir. 2010) (en banc), we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254, we must deny the petition unless the state court’s adjudication of [Petitioner’s] claims resulted in a decision that was either (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Doody, 596 F.3d at 634 (internal quotation marks omitted). Here, the California Court of Appeal found that Detective Carver’s statements to Petitioner during the interrogation constituted coercive conduct. "[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986). In addition, however, a confession must be "the result of" the coercive conduct to be involuntary. Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam) (internal quotation marks omitted). The state court found that Detective Carver’s statements were not the motivating cause for Petitioner’s confession. Petitioner testified before the trial court that he had confessed earlier, along the same lines as the second confession, because of police conduct separate from the statements on which he now relies. The state court’s finding that Detective Carver’s conduct 2 during the interrogation did not cause Petitioner’s recorded confession was not an unreasonable finding of fact in light of the evidence presented. Accordingly, Petitioner’s claim that his confession was involuntary fails. AFFIRMED. 3	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/748943/	131 F.3d 144 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Wal-Mart Stores, Inc., Appellant,v.Valcour Development Company, Appellee. No. 97-1600EM. United States Court of Appeals, Eighth Circuit. Submitted Nov. 17, 1997Filed Nov. 26, 1997 Appeal from the United States District Court for the Eastern District of Missouri. Before FAGG, WOLLMAN, and HANSEN, Circuit Judges. PER CURIAM 1 Wal-Mart Stores, Inc. appeals from the adverse decision of the district court and the jury in this diversity action. After reviewing the record, we conclude there is sufficient evidence to support the jury verdict and Wal-Mart's claims of trial error are without merit. Having ruled against Wal-Mart on the merits, we need not address its claim for prejudgment interest. We thus affirm the district court. See 8th Cir. R. 47B.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/2494132/	64 So.3d 121 (2011) BUSWELL v. STATE. No. 2D11-813. District Court of Appeal of Florida, Second District. June 30, 2011. DECISION WITHOUT PUBLISHED OPINION Appeal dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2042393/	890 N.E.2d 1282 (2004) 349 Ill. App.3d 1034 DeGENERES v. BROWNING. No. 1-03-2680. Appellate Court of Illinois, First District. June 30, 2004. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/408364/	688 F.2d 820 Gitzv.Goodman 81-2836 UNITED STATES COURT OF APPEALS Third Circuit 6/14/82 1 E.D.Pa. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/408496/	688 F.2d 825 U. S.v.Dagney 81-2651 UNITED STATES COURT OF APPEALS Third Circuit 5/12/82 1 E.D.Pa. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/4520539/	Order entered March 27, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01043-CR STACY DWAYNE JACKSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F14-76039-L ORDER Before the Court is appellant’s March 25, 2020 motion for extension of time to file his brief. We GRANT the motion and ORDER appellant’s brief received that same day filed as of the date of this order. /s/ LANA MYERS JUSTICE	01-03-2023	03-30-2020
https://www.courtlistener.com/api/rest/v3/opinions/2072234/	84 A.2d 597 (1951) COHEN et al. v. DELMAR DRIVE-IN THEATRE, Inc. Civ. Action No. 315, 1950. Superior Court of Delaware, Sussex. November 5, 1951. Daniel J. Layton, Jr., of Georgetown, for plaintiffs. James M. Tunnell, Sr., of Georgetown, for defendant. HERRMANN, J., sitting. HERRMANN, Judge. This cause having come on for trial before the Court, trial by jury having been waived by the parties, and the evidence adduced by the parties having been duly considered, the Court makes the following: Findings of Fact. 1. During the period December 13, 1949 to March 13, 1950, the defendant was the owner of an outdoor theatre then being constructed. 2. The defendant had entered into a general contract with a builder, not party to this action, for the construction of the theatre. 3. During the period aforesaid, the plaintiffs furnished certain materials which were used in the construction of the theatre. 4. The materials furnished by the plaintiffs were delivered upon the order and credit of the builder or of a subcontractor, likewise not party to this action. 5. The materials furnished by the plaintiffs were not sold to the defendant nor were they delivered upon the credit of the defendant. 6. The defendant did not promise to pay the plaintiff's for the materials furnished. 7. The defendant has made full and complete payment to the builder pursuant to the general contract for the construction of the theatre. From the foregoing Findings of Fact, the Court reaches the following: Conclusions of Law. 1. No contractual relationship existed between the plaintiffs and the defendant. 2. In the absence of an express contract between them, there was no privity between the plaintiffs and the defendant. McNulty v. Keyser Office Bldg. Co., 112 Md. 638, 76 A. 1113. *598 3. A materialman, as subcontractor, may not recover a personal judgment against a property owner in the absence of a contract between them. 24 L.R.A.,N.S., 321; 17 C.J.S., Contracts, § 370; 9 Am.Jur. p. 21; c. f. Westinghouse Electric Supply Company, etc. v. Franklin Institute, etc., 2 Terry 319, 21 A.2d 204. 4. A materialman who, as subcontractor, furnishes materials upon the order and credit of a general contractor or of another sub-contractor, cannot recover in an action in personam against the owner upon the basis of implied contract arising from the receipt and acceptance of the benefit of the materials furnished. Chatfield v. Fish, 126 Conn. 712, 10 A.2d 754; 17 C.J.S., Contracts, § 370. 5. The plaintiffs are not entitled to recover from the defendant in this action. Let the Prothonotary enter judgment in favor of the defendant for costs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/863751/	Unable to extract the content from this file. Please try reading the original.	01-03-2023	04-27-2013
https://www.courtlistener.com/api/rest/v3/opinions/741816/	115 F.3d 643 97 Cal. Daily Op. Serv. 3847, 97 Daily JournalD.A.R. 6558Mercedes DE LEON, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 97-70127. United States Court of Appeals,Ninth Circuit. May 22, 1997. Enrique Arevalo, Victor D. Nieblas P., South Pasadena, CA, for petitioner. Allen W. Hausman, Office of Immigration Litigation, Department of Justice, Washington, DC, for respondent. Petition for Review of a Decision of the Board of Immigration Appeals Submitted to the Motions Panel May 20, 1997. Before: FLETCHER, REINHARDT and FERNANDEZ, Circuit Judges. 1 Petitioner Mercedes De Leon moves for a stay of deportation pending disposition of her petition for review of the Board of Immigration Appeals' order affirming the denial of her applications for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158(a) & 1253(h), and suspension of deportation under section 244(a) of the INA, 8 U.S.C. § 1254(a). 2 Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), in most cases the filing of a petition for review automatically stayed the petitioner's deportation pending review. See 8 U.S.C. § 1105a(a)(3), repealed by IIRIRA § 306(b). IIRIRA eliminated the automatic stay. See IIRIRA § 309(c)(4)(F). Now, "service of the petition for review shall not stay the deportation of an alien pending the court's decision on the petition, unless the court orders otherwise." Id. 3 The court has been inundated with motions for stay of deportation since the enactment of IIRIRA. To enable this court to process the large number of stay requests, and to eliminate the risk that petitioners will be deported before their stay requests are decided, we adopt the following procedures which shall apply unless and until the court adopts different rules or procedures: 4 1. The filing of a motion for stay or a request for a stay contained in a petition for review will stay a petitioner's deportation temporarily until the court rules on the stay motion; 5 2. Respondent's opposition, or notice of non-opposition, to the motion for stay must be filed within seven days after service of the motion on the agency, pursuant to Fed.R.App.P. 27(a); see also Fed.R.App.P. 26(c) (providing three-day extension for filing after service by mail); and, 6 3. The motion for a stay of deportation will be presented to the next available motions panel after receipt of respondent's opposition or notice of non-opposition. In the event respondent's opposition contains a motion to dismiss the petition, both motions will be presented to the next available motions panel. 7 Accordingly, Petitioner De Leon's deportation is temporarily stayed pending this court's decision on the merits of her motion for a stay of deportation.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/741818/	115 F.3d 650 30 Bankr.Ct.Dec. 1136, 97 Cal. Daily Op. Serv. 3966,97 D.A.R. 6746 In re AMBANC LA MESA LIMITED PARTNERSHIP, Debtor.LIBERTY NATIONAL ENTERPRISES, a California limitedpartnership, Creditor-Appellant,v.AMBANC LA MESA LIMITED PARTNERSHIP, an Arizona limitedpartnership, Debtor-Appellee. No. 95-16872. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 7, 1996.Decided May 28, 1997. Sean P. O'Brien, Frank G. Long, Gust Rosenfeld, Phoenix, Arizona, for creditor-appellant. Ilene J. Lashinsky, Davis & Lowe, Phoenix, Arizona, for debtor-appellee. Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-92-00896-PGR. Before RONEY,* BEEZER and TROTT, Circuit Judges. RONEY, Senior Circuit Judge: 1 Liberty National Enterprises, the only secured creditor in this single-asset bankruptcy of a 256-unit apartment project, appeals the confirmation of a Chapter 11 plan of reorganization which utilized the "cramdown" provisions of 11 U.S.C. § 1129(b) of the Bankruptcy Code. We reverse on two grounds. 2 The bankruptcy court first, erroneously failed to include cash collateral, the sum of rents accumulated less operating expenses at the time of the confirmation of the Plan, in the present value securing Liberty's claim; and second, violated the absolute priority rule, which would provide interest on that portion of Liberty's claim classified as unsecured before any equity interest would revert to the bankrupt, because the "new value" approved by the court as justifying such a violation was not substantial. 3 Ambanc is a limited partnership formed in June 1988 to purchase, operate, hold, and ultimately dispose of a single asset: a 256-unit apartment project in Mesa, Arizona. Ambanc purchased the property with funds borrowed from Liberty's predecessor in return for a note in the principal amount of $7.6 million, secured with a deed of trust covering the property. As of May 1990, the Chapter 11 petition date, the amount of the claim secured by the note and deed of trust was $8,344,920. The bankruptcy court valued the real property at $4.3 million. The bankruptcy court also entered an order providing that the RTC, which at that time owned the note, had a properly perfected interest in all rents and revenues gathered at the property, that these funds are cash collateral under 11 U.S.C. § 363(a), and that all net income from the rents and revenues, generated at the property and beyond those necessary to pay the normal operating expenses of the property, are to be segregated by Ambanc in an interest-bearing account. In March 1992, the bankruptcy court confirmed Ambanc's Plan of Reorganization. THE PLAN 4 The Plan establishes eight separate classes of creditors: three classes of administrative expense or priority claims; one class, Class 4, composed of Liberty's secured claim; and four unsecured classes: 5 Class 5, Liberty's unsecured claim $4,044,920 Class 6, Crain's unsecured claim $ 618,482 Class 7, trade creditors' claims $ 28,233 Class 8, Security Savings & Loan Assoc.'s claim $ 303,801 6 The Plan defers all payments on claims until the effective date: the first business day occurring at least 30 days after the confirmation order has become final and nonappealable. Finally, the Plan defines classes 9 through 11, which provide that Ambanc's partners who contribute $20,000, payable over 10 years in annual increments of $2,000, will retain all of their interest in the reorganized debtor. 7 The Plan treats Liberty's claims as follows. The Plan pays no interest on Liberty's class 4 secured claim between the March 1992 confirmation and the effective date. On the effective date, the Plan will offset all of Liberty's accumulated cash collateral against the $4,300,000 principal of Liberty's secured claim. The accumulated cash collateral was predicted to reach approximately $300,000 by the effective date at the time the Plan was confirmed. After offsetting the cash collateral, the Plan pays Liberty interest-only monthly payments at 10.5% per annum on the balance of the $4,300,000 secured claim. The Plan pays principal on Liberty's secured claim if there is positive cash flow and will pay the unpaid balance and accrued interest in 10 years or if the property is either sold or the underlying indebtedness is refinanced. The Plan pays Liberty's class 5 unsecured claim, without post-confirmation interest, only if there is sufficient cash flow generated after Liberty's class 4 claim is paid in full.DISPOSITION BELOW 8 Only class 7 of the impaired classes affirmatively accepted the Plan. The bankruptcy court confirmed the Plan over the RTC's predecessor's objections. Liberty subsequently obtained the RTC's interest in the note. The district court affirmed more than two years later in September 1995. This appeal followed. DISCUSSION 9 On appeal from a final judgment of the district court reviewing a decision of the bankruptcy court, we review the bankruptcy court's factual findings for clear error and the district court's legal conclusions de novo. In re Barakat, 99 F.3d 1520 (9th Cir.1996). I. 10 The bankruptcy court had an affirmative duty to ensure that the Plan satisfied all 11 U.S.C. § 1129 requirements for confirmation. In re L & J Anaheim Assoc., 995 F.2d 940, 942 (9th Cir.1993). 11 U.S.C. § 1129(a) sets forth thirteen requirements to be met before the bankruptcy court may confirm a Plan. The bankruptcy court must confirm a Chapter 11 debtor's plan of reorganization if the debtor proves by a preponderance of the evidence either (1) that the Plan satisfies all thirteen requirements of 11 U.S.C. § 1129(a), or (2) if the only condition not satisfied is the eighth requirement, 11 U.S.C. § 1129(a)(8), the Plan satisfies the "cramdown" alternative to this condition found in 11 U.S.C. § 1129(b), which requires that the Plan "does not discriminate unfairly" against and "is fair and equitable" towards each impaired class that has not accepted the Plan. See In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP 1994), aff'd, 85 F.3d 1415 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S. Ct. 681, 136 L. Ed. 2d 607 (1997). 11 The eighth requirement provides that "with respect to each class of claims or interests-(A) such class has accepted the plan; or (B) such class is not impaired under the plan." 11 U.S.C. § 1129(a)(8). 11 U.S.C. § 1129(a)(8) is not satisfied because Liberty, an impaired class, objected. 12 Because 11 U.S.C. § 1129(a)(8) is not met, the Plan must satisfy the cramdown provision, 11 U.S.C. § 1129(b), to be confirmed. The two requirements for cramdown are that the plan (A) treat each objecting impaired class fairly and equitably, and (B) not discriminate unfairly against any objecting impaired class. 11 U.S.C. § 1129(b)(1). 11 U.S.C. § 1129(b)(2) sets out specific requirements for fair and equitable treatment, which the Plan does not meet in its definition and treatment of Liberty's secured and unsecured claims. A. Liberty's Secured claim 13 The 11 U.S.C. § 1129(b)(2) cramdown provision specifies that a fair and equitable plan provide one of three alternatives for the holders of secured claims: 14 (i) (I) that the holders of such claims retain the liens securing such claims, whether the property subject to such liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount of such claims; and 15 (II) that each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder's interest in the estate's interest in such property; 16 (ii) for the sale, subject to section 363(k) of this title, of any property that is subject to the liens securing such claims, free and clear of such liens, with such liens to attach to the proceeds of such sale, and the treatment of such liens on proceeds under clause (i) or (iii) of this subparagraph; or 17 (iii) for the realization by such holders of the indubitable equivalent of such claims. 18 11 U.S.C. § 1129(b)(2)(A). Each of these three alternatives prevents Ambanc from cramming down the Plan by paying Liberty less than the present value of the collateral securing its claim. 19 The Plan purports to employ the first alternative means of fair and equitable treatment, 11 U.S.C. § 1129(b)(A)(i)-deferred cash payments equal to the present value at the effective date. The value of Liberty's secured claim for the purposes of confirmation is the market value of real property plus the net amount of the rents collected post-petition and pre-confirmation and subject to a deed of trust and assignment of rents. Thus, Liberty should have been paid on its secured claim of approximately $4.6 million-$4.3 million in the value of the real property and the estimated $300,000 accumulated cash collateral by the time of the effective date. The bankruptcy court erred in finding the $4.3 million valuation of Liberty's secured claim satisfied the cramdown requirements. B. Liberty's Unsecured Claim 20 11 U.S.C. § 1129(b)(2) sets forth specific criteria for the fair and equitable treatment of unsecured claims: 21 (i) the plan provides that each holder of a claim of such class receive or retain on account of such claim property of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or 22 (ii) the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property. 23 11 U.S.C. § 1129(b)(2)(B). § 1129(b)(2)(B)'s provision for fair and equitable treatment of unsecured creditors codifies the judicially developed absolute priority rule. With one exception, that general rule prohibits the bankruptcy court from confirming the Plan if any of the debtor's former equity holders retain any equity interest in the estate without also providing to senior objecting creditors cash or other property equal to the present value of their claim. Ambanc's partners do retain equity interests, so Liberty-an unsecured creditor classified senior to Ambanc's partners-must be paid the full present value of its claim. The district court found that because Liberty "will receive 100% of both its secured and unsecured claims before the partners receive anything," the Plan satisfied the absolute priority rule. However, in order for Liberty to be paid the full value of its claims, the Plan must provide for payment of interest for the post-confirmation time-value of the amount of Liberty's unsecured claim. See In re Perez, 30 F.3d 1209, 1214-15 (9th Cir.1994). The Plan violates the general absolute priority rule provided in the Code because it does not pay interest on Liberty's unsecured claim. 24 Because the Plan plainly violates the general absolute priority rule, we must consider whether it satisfies the exception or "corollary," In re Bonner Mall Partnership, 2 F.3d 899 (9th Cir.1993), mot. to vacate denied and cert. dismissed, 513 U.S. 18, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994). Allowing old equity to retain an interest does not violate the absolute priority rule if the former equity holders provide new value to the reorganized debtor, under the "new value corollary" to the absolute priority rule. 25 The new value corollary requires that former equity holders offer value under the Plan that is (1) new, (2) substantial, (3) in money or money's worth, (4) necessary for successful reorganization, and (5) reasonably equivalent to the value or interest received. Id. at 908. Under the Plan, Ambanc's partners retain all of their rights, title, and interest in the reorganized debtor conditioned upon each partner contributing $20,000 payable over 10 years in annual increments of $2,000. With 16 contributors, this translates to an initial contribution of $32,000, and a total contribution of $320,000 over a period of ten years. 26 There is no dispute that the partners contribute "new" value. We reverse, however, on the ground that the bankruptcy court erred in finding the contribution substantial, the analysis of which is intertwined with the "money or money's worth" component. 27 The bankruptcy court's findings of fact, conclusions of law and order confirming the Plan stated only that "[e]ach impaired class has either accepted the Plan or the treatment provided by the Plan for such class is fair and equitable and does not discriminate unfairly." Order p 10(h). We find this conclusion to be clear error. See Bonner, 2 F.3d at 909. 28 The relevant amount for the substantiality analysis is the partners' up-front contribution. Under the "money or money's worth" requirement, the new capital contribution of the former equity holders (1) must consist of money or property which is freely traded in the economy, and (2) must be a present contribution, taking place on the effective date of the Plan rather than a future contribution. See In re Yasparro, 100 B.R. 91, 96-97 (Bankr.M.D.Fla.1989) (holding that promissory notes from the individual debtor to the unsecured creditors were future rather than present contributions and thus did not satisfy the new value corollary) (citing Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S. Ct. 963, 99 L. Ed. 2d 169 (1988); In re Stegall, 85 B.R. 510 (C.D.Ill.1987), aff'd, 865 F.2d 140 (7th Cir.1989)). Only those contributions from Ambanc's partners that will actually be paid on the effective date of the Plan may be considered as money or money's worth under the new value corollary-the contribution of $32,000. 29 The Bonner case was before this Court on the district court's reversal of the bankruptcy court's grant of relief from the automatic stay. The bankruptcy court had based relief from the stay on its conclusion that the new value corollary to the absolute priority rule was no longer in effect. In affirming the district court's reversal, we first determined that the judicially-created new value corollary survived the enactment of the Bankruptcy Code in 1978. We then held that the specific record before us did not establish as a matter of law that there was no reasonable possibility that the bankruptcy judge could find the plan at issue "fair and equitable." In Bonner, there had not yet been a confirmation hearing on the reorganization plan, under which old equity was to contribute $200,000, or 6% of the unsecured debt of $3.4 million. We noted that there are "certain conceptual difficulties regarding valuation inherent in the application of the new value exception," id. at 917 n. 40, but deferred addressing valuation methodology until we might be presented with a concrete factual situation at a later date, id. 30 The present case still does not present us with the factual situation appropriate for the resolution of the difficult issues of valuation in the context of the new value corollary. Rather, we reject the contribution proposed here as a threshold matter because it is de minimis as a matter of law. 31 The most conceptually difficult prong of the new value corollary may be the fifth-equivalence, which likely requires the bankruptcy court to determine a value for the reorganized debtor to be compared with the contribution. Wholly de minimis contributions, however, simply fail the threshold analysis under the second prong, substantiality-a requirement separate and independent of equivalence, see In re Snyder, 967 F.2d 1126, 1131 (7th Cir.1992). Commentators have observed that "prior to making the time-consuming determination as to whether the new value contribution is reasonably equivalent to the value being received[-the equivalence prong], a significant number of courts have required that the new value contribution be 'substantial' in comparison to such things as" (1) the total unsecured claims against the debtor, (2) the claims being discharged, or (3) the dividend being paid on unsecured claims by virtue of the contribution. J. Ronald Trost, Joel G. Samuels, Kevin T. Lantry, Survey of the New Value Exception to the Absolute Priority Rule and the Preliminary Problem of Classification, CA46 A.L.I.-A.B.A. 479, 552 (1995). 32 There is no dividend being paid as a result of contribution in this case, and we need not now determine whether total unsecured claims or total amount discharged provides the better basis, because the contribution in this case is de minimis under either comparison. First, $32,000 is less than 0.5% of the total unsecured debt of approximately $4 million. This percentage is well below the percentage of unsecured debt that other courts have held to be insubstantial as a matter of law. Compare, e.g., In re Woodbrook Assocs., 19 F.3d 312, 320 (7th Cir.1994) ($100,000 contribution not substantial because it is only 3.8% of $2.6 million unsecured debt); In re Snyder, 967 F.2d 1126, 1132 (7th Cir.1992) ("the disparity between the contribution and the unsecured debt," at most $22,000 or 2.2% of approximately $1,000,000 unsecured claims, was "so extreme ... there [was] no need to proceed any further ...."); and In re Olson, 80 B.R. 935 (Bankr.C.D.Ill.1987) ($5,000, or only 1.56% on the $320,000 due all unsecured creditors, held insubstantial), aff'd, No. 88-4052, 1989 WL 330439 (C.D.Ill. Feb.8, 1989), with In re Elmwood, Inc., 182 B.R. 845 (D.Nev.1995) ($150,000, less than 4% of unsecured debt, approved where a higher contribution would not correct the undesirable location and crime problems associated with the primary asset, an apartment complex). Second, the contribution percentage is likely even smaller when compared to amount of debt discharged-the interest on the unsecured claims. At, for instance, the rate of interest the Plan applies to Liberty's secured claim-10.5%-potentially over ten years, this lost interest could exceed $4 million. 33 Rejection of de minimis contributions is consistent with longstanding precedent. The absolute priority rule arose in the early part of this century from litigation attacking collusion between shareholders and bondholders who sought to squeeze-out unsecured creditors in reorganizations of failed railroads. Bruce A. Markell, Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations, 44 Stan.L.Rev. 69 (Nov.1991). The courts initially employed fraudulent transfer principles to assist unsecured creditors. Id. at 76-77. In one early such case, Northern Pacific Ry. v. Boyd, 228 U.S. 482, 33 S. Ct. 554, 57 L. Ed. 931 (1913), the Supreme Court recognized two general principles: First, continued shareholder participation in the reorganized debtor creates a presumption of collusion. Id. at 507, 33 S.Ct. at 561. Second, reorganization managers could dispel this presumption by promulgating a "fair" offer to all creditors. Id. at 508, 33 S.Ct. at 561-62. Our holding in Bonner recognizes that such precedential heritage survived the later codification of the absolute priority rule. The Boyd presumption against former equity's participation has endured as a primary component of absolute priority jurisprudence. A de minimis contribution is insufficient to overcome that presumption. 34 We decline to define a bright-line rule, but merely hold that a proposed contribution of one-half of one percent of each of the various quantities judicially recognized as relevant to the substantiality comparison falls within the de minimis range. 35 Based upon the above holding, we need not reach the fourth and fifth prongs of the new value corollary, necessity and reasonable equivalence. However, if a new Plan is proposed in the future and confirmed, the bankruptcy court's confirmation order will likely need to exhibit a more comprehensive factual determination as to necessity than is present in the order under review. The court must also take care that the equivalence analysis only compares what the partners put in to what they get out. II. 36 There are two additional confirmation requirements that will merit closer consideration by the bankruptcy court if a new Plan is put forth following remand. First, the tenth 11 U.S.C. § 1129(a) confirmation requirement provides: 37 If a class of claims is impaired under the plan, at least one class of claims that is impaired under the plan has accepted the plan, determined without including any acceptance of the plan by any insider. 38 11 U.S.C. § 1129(a)(10). Liberty argues that the Plan unfairly discriminates against Liberty by making repayment of its unsecured class 5 claim conditional, while paying the trade creditors' class 7 claims in cash on the effective date of the Plan. Liberty contends that the only basis for paying the trade creditors 80% at the Plan's inception was to gerrymander an impaired class to vote for the Plan. 39 Discrimination between classes must satisfy four criteria to be considered fair under 11 U.S.C. § 1129(b): (1) the discrimination must be supported by a reasonable basis; (2) the debtor could not confirm or consummate the Plan without the discrimination; (3) the discrimination is proposed in good faith; and (4) the degree of the discrimination is directly related to the basis or rationale for the discrimination. In re Wolff, 22 B.R. 510, 511-12 (9th Cir. BAP 1982). Moreover, separate classification for the purpose of securing an impaired consenting class under § 1129(a)(10) is improper. See In re Greystone III Joint Venture, 995 F.2d 1274, 1279 (5th Cir.1991), cert. denied, 506 U.S. 821, 113 S. Ct. 72, 121 L. Ed. 2d 37 (1992), and cert. denied, 506 U.S. 822, 113 S. Ct. 72, 121 L. Ed. 2d 37 (1992); In re Holywell Corp., 913 F.2d 873, 880 (11th Cir.1990). In affirming on this element, the district court reasoned that "it is legitimate to pay the relatively small claims of trade creditors more quickly than a large deficiency claim" because "[p]rompt payment of such debts promotes good will and enables a debtor to continue to receive goods and services while implementing its recovery." On the other hand, the continued services of ordinary tradespeople may not always be a commercial necessity for an apartment operator in a large metropolitan area with many other providers of those services. See In re Barakat, 173 B.R. 672, 681 (Bankr.C.D.Cal.1994) aff'd, 99 F.3d 1520 (9th Cir.1996); In re Lumber Exchange Ltd. Partnership, 125 B.R. 1000 (Bankr.D.Minn.), aff'd, 134 B.R. 354 (D.Minn.1991), aff'd, 968 F.2d 647 (8th Cir.1992). If confirmation is reconsidered on remand, the trade creditors' payoff issue must be resolved by specific evidence and court findings therefrom based upon the four Wolff factors. 40 Second, under the best interests test, where not all creditors support the Plan, the debtor must prove that the creditors would receive as much under the Plan as they would receive in a liquidation under Chapter 7, 11 U.S.C. § 1129(a)(7). While we do not reverse on this issue, we note that if confirmation is reconsidered after remand, the bankruptcy court must make specific findings to determine whether each claim holder in the impaired classes would receive no less under the Plan than they would have received in a Chapter 7 proceeding. Kane v. Johns-Manville Corp., 843 F.2d 636, 649 (2d Cir.1988); In re M. Long Arabians, 103 B.R. 211 (9th Cir. BAP 1989) (remanding Plan to bankruptcy court for findings on 11 U.S.C. § 1129(a)(7) when "the court did not have a proper factual basis to make an informed decision"). III. 41 Finally, the bankruptcy court did not clearly err in determining that the Plan is feasible on the evidence before it. See In re Jorgensen, 66 B.R. 104 (9th Cir. BAP 1986) (determination of feasibility is a factual determination). CONCLUSION 42 Neither Liberty's secured nor its unsecured claim was treated fairly and equitably to allow cramdown. The secured claim should have included the cash collateral. The unsecured claim was not given absolute priority over the partners' interests, and the partners' contribution was too insubstantial to satisfy the new value corollary. 43 Liberty's request for attorney's fees in this matter is denied. 44 REVERSED. * The Honorable Paul H. Roney, Senior Circuit Judge for the Eleventh Circuit, sitting by designation	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/863757/	Unable to extract the content from this file. Please try reading the original.	01-03-2023	04-27-2013
https://www.courtlistener.com/api/rest/v3/opinions/2042413/	890 N.E.2d 1283 (2004) 349 Ill. App.3d 1037 PEOPLE v. POWELL. No. 1-03-0899. Appellate Court of Illinois, First District. July 23, 2004. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2042414/	890 N.E.2d 1285 (2004) 349 Ill. App.3d 1040 JOHNSON v. COMPOST PRODUCTS, INC. No. 2-03-0664. Appellate Court of Illinois, Second District. August 13, 2004. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4522029/	Reversed in part, Affirmed in part, Rendered, Remanded, and Opinion filed April 2, 2020. In the Fourteenth Court of Appeals NO. 14-18-00600-CR PHI VAN DO, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas Trial Court Cause No. 2130699 OPINION Appellant Phi Van Do appeals his conviction of the Class A misdemeanor of driving while intoxicated (DWI) with an alcohol concentration of 0.15 or more at the time the analysis was performed. See Tex. Penal Code Ann. § 49.04(a), (d). During punishment, the trial court made the finding that appellant’s breath showed an alcohol concentration level of at least 0.15 at the time the analysis was performed. See id. § 49.04(d). The trial court assessed punishment at a $250 fine and one-year confinement in the Harris County Jail, but suspended the sentence, and placed appellant on community supervision for one year and imposed a $250 fine. See id. § 12.21; Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1). Appellant raises five issues. In his first issue, he argues that there was no valid charging instrument in his case because he was not indicted by a grand jury. In his second issue, appellant contends that the complaint supporting the information was invalid because the affiant only initialed and did not sign the complaint. In his third issue, appellant argues that the trial court erred by treating an element of the offense of Class A misdemeanor DWI as a punishment enhancement. In his fourth issue, appellant argues the trial court’s determination that he had a heightened alcohol concentration violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Finally, in his fifth issue, appellant contends that the trial court failed to make a statutorily required ability-to-pay determination at sentencing. We overrule appellant’s first and second issues, sustain his third and fourth issues, and do not reach his fifth issue. Therefore, we reverse the trial court’s judgment in part, affirm the judgment in part, render judgment that appellant is convicted of Class B misdemeanor DWI instead of Class A misdemeanor DWI, and remand the case for further proceedings limited to a new punishment hearing. See Tex. R. App. P. 43.2(a), (c), (d). I. BACKGROUND Appellant was charged by information with the offense of unlawfully operating a motor vehicle on or about January 9, 2017, in a public place while intoxicated. See Tex. Penal Code Ann. § 49.04(a). The information further alleged that an analysis of a specimen of appellant’s breath showed an alcohol concentration level of at least 0.15 at the time the analysis was performed. See id. § 49.04(d). 2 During appellant’s arraignment, the State did not read the portion of appellant’s information that alleged the at-least 0.15 alcohol concentration level. Appellant pleaded not guilty. Viewed in the light most favorable to the conviction, there was evidence that appellant was speeding and caused a red-light collision at a busy intersection. At the scene, he smelled like alcohol; used “slurred speech”; had red, glassy eyes; and admitted he had been drinking beer. Officer Guerra with the Houston Police Department (HPD) transported appellant to the HPD Central Intoxilyzer station. At “Central Intox,” appellant underwent the one-leg-stand and the walk-and-turn standardized field sobriety tests. He failed both tests. Appellant consented to giving, and a DWI technician with the City of Houston tested, a breath sample. According to the technician, appellant was intoxicated. A Department of Public Safety (DPS) technical supervisor responsible for maintenance and monitoring reported that the Intoxilyzer used to test appellant’s breath was functioning properly. The supervisor stated that appellant’s results of 0.194 grams per 210 liters of breath and 0.205 grams per 210 liters of breath were within the allowed tolerance and were greater than Texas’s 0.08 grams per 210 liters of breath legal limit of intoxication. The jury charge included the following abstract and application paragraphs: THE LAW ON DRIVING WHILE INTOXICATED A person commits an offense the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. To prove that the defendant is guilty of driving while intoxicated, the State must prove, beyond a reasonable doubt, three elements: 1. The defendant operated a motor vehicle: and 3 2. The defendant did this in a public place; and 3. The defendant did this while intoxicated. The State has alleged intoxication by not having the normal use of mental or physical faculties by reason of the introduction of alcohol or by having an alcohol concentration of .08 or more. .... APPLYING THE LAW TO THIS CASE You must determine whether the State has proved three elements beyond a reasonable doubt which are as follows: 1. The defendant, PHI VAN DO, operated a motor vehicle in Harris County, Texas, on or about JANUARY 9th, 2017: 2. in a public place; 3. while intoxicated by not having the normal use of his mental faculties due to the introduction of alcohol; by not having the normal use of his physical faculties due to the introduction of alcohol; or by having a[n] alcohol concentration of .08 or higher. You must all agree on elements 1, 2, and 3 listed above but you do not have to agree on the method of intoxication listed above. If you all agree the State has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty." If you all agree the State has proved, beyond a reasonable doubt, each of the three elements listed above then you must find the defendant “guilty.” In addition, the charge included the following pertinent definitions: Intoxicated “Intoxicated” means either (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body or having an alcohol concentration of .08 or more. Alcohol Concentration “Alcohol Concentration” means the number of grams of alcohol per 4 100 milliliters of blood.[1] The jury returned a verdict of guilty. Appellant elected to have the trial court assess his punishment. During punishment proceedings, the following exchange took place: [STATE]: At this time, the State would like to allege—further allege the .15 allegation. So it is fair to allege that an analysis of a specimen of the defendant’s breath showed an alcohol concentration level of at least 0.15 at the time the analysis was performed. THE COURT: Any objection from the defense? [DEFENSE COUNSEL]: Your Honor, that element was not presented to the jury for their consideration as part of deliberations. We would object to the enhanced element at this time. They tried it as a loss of use case. THE COURT: Any response? [STATE]: The response from the State is that it’s a punishment element. It wasn’t a [sic] element of the actual offense. We did have evidence that the analysis of the breath was above a .15. We tried it as—all three were able to prove intoxication and the BAC actually came out at trial. THE COURT: The objection is overruled. The Court finds the enhancement to be true. No new evidence was offered during this phase. The trial court sentenced appellant to one-year confinement in the Harris County Jail and a $250 fine, suspended to one-year community supervision and the imposition of a $250 fine. 1 A different definition applies when the alcohol concentration is based on breath, not blood. See Tex. Penal Code Ann. § 49.01(1)(A). Appellant did not object at trial and does not raise any instruction error on appeal. 5 II. ANALYSIS A. Appellant’s charging instrument In his first issue, appellant challenges whether he can be “held to answer for the criminal offense of which he was convicted” (a Class A misdemeanor) and sentenced to both punishment by fine and punishment by confinement in jail when he was charged by information instead of being indicted by a grand jury. Appellant relies on article I, section 10, of the Texas Constitution.2 As appellant acknowledges, there is binding precedent to the contrary. See Peterson v. State, 204 S.W.2d 618, 618 (Tex. Crim. App. 1947) (op. on reh’g) (rejecting appellant’s “contention that because both [fine and imprisonment] may be assessed he can only be charged by indictment of a grand jury” based on language of section 10 of article I of Texas Constitution).3 We overrule appellant’s first issue. B. Appellant’s complaint In his second issue, appellant argues that the complaint in his case is invalid because, although it is signed, the signature consists of just initials. Accordingly, the complaint does not reveal the identity of the signer. See Tex. Code Crim. Proc. Ann. 2 Article I, section 10, in pertinent part provides: [N]o person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. Tex. Const. art. I, § 10. 3 Cf. Tex. Code Crim. Proc. Ann. art. 12.02(a) (statute of limitations for presenting indictment or information for any Class A or Class B misdemeanor is two years from date of commission of offense); State v. Drummond, 501 S.W.3d 78, 82 (Tex. Crim. App. 2016) (information “can be used to charge a defendant with any misdemeanor offense”). 6 art. 21.22 (“No information may be presented until affidavit has been made by some credible person charging the defendant with an offense.”). Appellant further argues that because there is no evidence the complaint was signed by a credible person, the presentment of the information was erroneous, the trial court never obtained jurisdiction of the cause, and his conviction is void. The Texas Constitution provides that “[t]he presentment of an indictment or information to a court invests the court with jurisdiction of the cause.” Tex. Const. art. V, § 12(b). That is, “under the explicit terms of the constitution itself, the mere presentment of an information to a trial court invests that court with jurisdiction over the person of the defendant, regardless of any defect that might exist in the underlying complaint.” Aguilar v. State, 846 S.W.2d 318, 320 (Tex. Crim. App. 1993) (discussing 1985 amendment to Tex. Const. art. 5, § 12(b)). Because “they are no longer jurisdictional in the traditional sense,” defects in an information or underlying complaint, whether of form or substance, must be raised before trial in a motion to set aside the information or else they are waived. Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003) (defect in information (citing Aguilar, 846 S.W.2d at 318, 320)); Aguilar, 846 S.W.2d at 320 (defect in complaint (internal quotation marks omitted)). Appellant does not dispute that the information was presented to the trial court. Code of Criminal Procedure article 1.14(b), entitled “Waiver of rights,” provides: If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance 7 with Article 28.01 of this code. Tex. Code Crim. Proc. Ann. art. 1.14(b); see also Tex. Code Crim. Proc. Ann. art. 28.10 (“Amendment of indictment or information”). The legislature intended the constitutional provision and the statutes to work together. Teal v. State, 230 S.W.3d 172, 176–77 (Tex. Crim. App. 2007) (citing article V, section 12(b), and articles 1.14(b) and 28.10). In other words, an information once presented invokes the jurisdiction of the trial court, regardless of any defect. See id. at 176. And the defendant must object to any error in the information before trial and certainly before the jury is empaneled, or else the complaint is waived. See id. at 177, 182; see also Jenkins v. State, 592 S.W.3d 894, 902–03 (Tex. Crim. App. 2018) (discussing Teal). Having been presented with the information, the trial court was vested with jurisdiction of the cause and over appellant. See Tex. Const. art. V, § 12(b); Teal, 230 S.W.3d at 176; Aguilar, 846 S.W.2d at 320. Appellant acknowledges that he raised no objection to the complaint or the information prior to trial. He therefore failed to preserve any defect in the complaint or information. See Tex. Code Crim. Proc. Ann. art. 1.14(b); Jenkins, 592 S.W.3d at 902–03; Teal, 230 S.W.3d at 182; Ramirez, 105 S.W.3d at 630; Aguilar, 846 S.W.2d at 320. We overrule appellant’s second issue. C. The trial court’s error in determining the at-least 0.15 element of Class A misdemeanor DWI at punishment Appellant argues that the trial court erred in convicting him of a Class A misdemeanor DWI when the question of whether his alcohol concentration was 0.15 or higher was never submitted to the jury. We agree. Section 49.04(a) of the Penal Code provides: “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). A DWI offense is ordinarily a Class B misdemeanor. Id. § 49.04(b). However, section 8 49.04(d) provides: “If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.” Id. § 49.04(d). In Navarro v. State, our court held “that a person’s alcohol concentration level is not a basis for enhancement” but “is instead an element of a separate offense because it represents a specific type of forbidden conduct—operating a motor vehicle while having an especially high concentration of alcohol in the body.” 469 S.W.3d 687, 696 (Tex. App.—Houston [14th Dist.] pet. ref’d); see Tex. Penal Code Ann. § 49.04(a), (d); Castellanos v. State, 533 S.W.3d 414, 418–19 (Tex. App.— Corpus Christi 2016, pet. ref’d) (discussing Navarro and holding same); cf. Taylor v. State, 572 S.W.3d 816, 822 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d) (affirming Class A misdemeanor DWI conviction when “jury found that appellant drove with an alcohol concentration of more than 0.15”). In his third issue, appellant argues that the trial court erred in convicting him of Class A misdemeanor DWI when the question of whether his alcohol concentration was 0.15 or higher was never submitted to the jury and the trial judge instead made such finding during punishment. Appellant argues that “no person may be convicted of an offense unless each element of the offense is proven beyond a reasonable doubt.”4 Alternatively, in his fourth issue, appellant contends that the trial 4 See Tex. Code Crim. Proc. Ann. art. 38.03 (“Presumption of innocence”). “Even though the presumption of innocence is guaranteed by a Texas statute, the statute itself arises from a constitutional guarantee, that of a fair and impartial trial.” Miles v. State, 154 S.W.3d 679, 681 (Tex. App.—Houston [14th Dist.] 2004) (citing U.S. Const. amend. XIV and Tex. Code Crim. Proc. Ann. art. 38.03), aff’d, 204 S.W.3d 822 (Tex. Crim. App. 2006); see Hurst v. Florida, 136 S. Ct. 616, 621 (2016) (“This [Sixth Amendment] right [to trial by impartial jury], in conjunction with the Due Process Clause, requires that each element of a crime be proved to a jury beyond a reasonable doubt.”); Coffin v. United States, 156 U.S. 432, 453 (1895) (presumption of innocence is “axiomatic and elementary”). 9 court’s finding of a heightened alcohol concentration violated his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process as set out in Apprendi, 530 U.S. at 494, because “the required finding expose[d him] to a greater punishment than that authorized by the jury’s guilty verdict.”5 Appellant argues that no harm analysis is required. The State agrees that under Navarro the 0.15-or-greater alcohol-concentration element in subsection (d) is an essential element of the Class A misdemeanor DWI offense which must be proved to the jury at the guilt/innocence phase of trial. 469 S.W.3d at 696; see Tex. Penal Code Ann. § 49.04(d). The State acknowledges “[t]hat procedure was not followed in this case” and that “the jury was charged on regular Class B [misdemeanor] DWI, and the trial court and prosecutor treated the issue as a punishment enhancement for the trial court to find during the punishment phase.” The State also acknowledges that “the failure to submit an element to the jury is constitutional” error but contends the error was harmless beyond a reasonable doubt. When preserved, the harmless-error standard we apply “for most erroneous charges is that ‘the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant’; in other words, unless the appellant suffered ‘some harm.’” Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). However, as here, when the charge error concerns “a violation of the federal constitution that did not amount to a structural defect, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id.; see Neder v. United States, 527 U.S. 1, 15 (1999) (test for determining whether constitutional error is harmless is whether it appears “beyond a reasonable doubt that the error 5 In a footnote, appellant also argues that he was the recipient of an illegal sentence. 10 complained of did not contribute to the verdict obtained” (citing Chapman v. California, 386 U.S. 18, 24 (1967)); Williams v. State, 273 S.W.3d 200, 225 (Tex. Crim. App. 2008) (“Preserved jury charge error is evaluated under Almanza’s ‘some harm’ standard unless we determine that the error is constitutional in nature, in which case the ‘beyond a reasonable doubt harmless’ standard would apply.”); see also Tex. R. App. P. 44.2(a) (reversible constitutional error in criminal cases). D. Not harmless beyond a reasonable doubt “There is no set formula for conducting a harm analysis that necessarily applies across the board, to every case and every type of constitutional error.” Snowden v. State, 353 S.W.3d 815, 822 n.31 (Tex. Crim. App. 2011). However, the Texas Court of Criminal Appeals in Niles v. State, 555 S.W.3d 562 (Tex. Crim. App. 2018), provided certain guidelines for our analysis. The Niles court specifically pointed to the harmless-error analysis in Neder. See 555 S.W.3d at 572. The Neder Court stated: “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” 527 U.S. at 17. The Neder Court further stated: Of course, safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error— for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless. A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, “become in effect a second jury to determine whether the defendant is guilty.” [R.] Traynor, [The Riddle of Harmless Error] 21 [(1970)]. Rather a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted 11 element. Id. at 19. In addition, the Niles court noted that other state appellate courts “ask[] whether the element not included in the instructions was inherent in the elements that the jury did find.” 555 S.W.3d at 572. The Niles court also stated: “If the missing element was logically encompassed by the guilty verdict and was not in fact contested, the error was considered harmless.” Id. (citing United States v. Stanford, 823 F.3d 814, 832 (5th Cir.) (discussing Neder), cert. denied, 137 S. Ct. 453 (2016)). Regardless of which formulation of harmless error we use, we cannot conclude that the error here was harmless beyond a reasonable doubt. The State contends the error was harmless because “[o]ther than the breath test, the State’s evidence of intoxication was weak” and “the verdict shows that the jury believed the breath test results.” However, considering all the trial evidence, there was certainly other evidence tending to show appellant was intoxicated aside from his breath-test results. For example, the driver and passenger of the vehicle appellant hit testified regarding how appellant was driving “really fast” behind them when they were stopped at a red light and “pushed [them] far” into the intersection. The passenger testified that appellant “had a smell of alcohol.” According to the officer who responded to the scene, appellant had “slurred speech,” smelled like alcohol, had red, glassy eyes, and said he previously drank (at least) two alcoholic beverages or beers. There was evidence that appellant failed both standardized field sobriety tests administered to him at Central Intox and that such tests are reliable ways to test for physical or mental impairment. We consider that the State did not solely rely on the objective, or “per se,” theory of intoxication based on appellant’s having an alcohol concentration of 0.08 or more. The jury charge also included the subjective, or “impairment,” theory of intoxication. The abstract and application paragraphs stated that the State alleged 12 and the jury was to determine whether the State proved the element of intoxication by way of appellant’s not having the normal use of his mental or physical faculties due to the introduction of alcohol. See Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010) (per se and impairment intoxication theories are not mutually exclusive and can be submitted to jury if there is some evidence that would support both definitions). We also consider that jury unanimity is not required as to one or the other theory (per se or impairment) for the State to prove intoxication. See Tex. Penal Code Ann. § 49.01(2) (“Intoxication”); Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003) (“[T]he definitions contained in § 49.01 set forth alternate means by which the State may prove intoxication, rather than alternate means of committing the offense.”); Bradford v. State, 230 S.W.3d 719, 722 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“[J]ury unanimity on one or the other theory, impairment or per se, is not required for the State to prove intoxication.”). In other words, the jury could convict appellant based on either the per se theory, the impairment theory, or some combination of both theories. The jury did not have to believe the breath-test results in order to convict appellant of DWI. The jury instead could have believed the evidence tending to show appellant’s loss of normal mental or physical faculties. We therefore disagree with the State’s contention that “[i]f the jury had disbelieved the test result, it would have acquitted” and “[t]he jury’s finding of guilt is a finding it believed the test result.” Nor do we agree with the State that “[t]he jury’s finding of intoxication renders a positive finding on the .15 element a foregone conclusion.” Appellant’s breath-test results did not go uncontested. Appellant’s defense counsel elicited testimony from the DWI technician that during the 15-minute observation period before the breath test, appellant was speaking clearly and coherently. The technician 13 expressly agreed that highly intoxicated people would not present mannerisms and speech patterns like appellant did in the video. Defense counsel also elicited testimony from the DPS supervisor regarding how she provided two sworn statements concerning appellant’s breath test that were factually inconsistent and stated different starting times for the “operational systems check”6 for appellant’s test. The supervisor agreed with defense counsel that such tests are “highly scientific”; she is “really concerned about how the machines are operated and the timeliness”; and that “if anything is incorrect or erroneous, it would make the test invalid.” During closing arguments, defense counsel first submitted to the jury that the breath-test results were inadmissible. In addition, however, he argued: But I will submit to you, you saw how they were skewed. I asked the— when she came in to testify, I said, okay, when was the test was taken? The test was taken at midnight, 000. Well, why did you swear off this other affidavit that said it was taken at 11:55? Makes the test erroneous. That’s a reasonable doubt. The pieces of the puzzle, you remember the State used a puzzle. They don’t fit, ladies and gentlemen. So that’s reasonable doubt. . . . So there’s also this disconnect. Y’all heard him talking to the officers and his speech wasn’t slurred. He was in tune with time and place. He talked about how the store next to his store got robbed and everything was clean and clear and that’s evidence that there’s something wrong with this test. You don’t get a 19 or a 2-0 and then have somebody evidence clear speech. That’s an undisputable conflict. That’s reasonable doubt. We also consider what was (or was not) before the jury regarding the 0.15 alcohol-concentration element of Class A misdemeanor DWI. See Tex. Penal Code Ann. § 49.04(d). According to appellant, the State effectively abandoned the Class A misdemeanor DWI offense during trial. Voir dire included no discussion of the 6 The supervisor explained that this check involves “testing temperatures, voltages, internal standards.” 14 0.15 element. During appellant’s arraignment, the State did not read the portion of the information alleging the 0.15 element. Although the DPS supervisor testified that appellant’s breath-test results were “greater” than the 0.08 “legal limit of intoxication,” no testimony highlighted or explained that a 0.15 alcohol concentration is a requisite threshold reading for purposes of meeting the higher level of Class A misdemeanor DWI offense. Nor did the State include in its closing any discussion of the 0.15 element. When discussing the test results, the State argued that appellant’s valid test results of 0.194 and 0.205 were “over double the legal limit,” referring of course to the 0.08 alcohol-concentration level of regular Class B misdemeanor DWI. See Tex. Penal Code Ann. §§ 49.01(2)(B), 49.04(a), (b). As discussed above, the guilt/innocence charge did not instruct the jury regarding the 0.15 element or request a finding on the 0.15 element; the State acknowledges that it instead treated the issue as a potential enhancement for the trial court to determine at the punishment phase of the trial. Finally, we consider appellant’s sentence. The record indicates that appellant elected to have the trial court assess his punishment. The trial court erred by sentencing appellant to one-year county-jail confinement, after considering the 0.15 element as an enhancement during the punishment phase, without allowing the jury to consider the 0.15 element during the guilt/innocence phase of the trial. In other words, based on the enhancement finding, the trial court applied a range of punishment applicable to a Class A misdemeanor, instead of a Class B misdemeanor. Compare id. §§ 12.22 (Class B misdemeanor punishable by fine not to exceed $2,000, jail confinement not to exceed 180 days, or both), 49.04(a), (b) (Class B misdemeanor DWI), with id. §§ 12.21 (Class A misdemeanor punishable by fine not to exceed $4,000, jail confinement not to exceed one year, or both), 49.04(d) (Class A misdemeanor DWI). Indeed, the trial court assessed the maximum jail 15 confinement for a Class A misdemeanor DWI. Lacking knowledge beyond a reasonable doubt that the jury unanimously found the intoxication element based on the per se theory, we cannot conclude that the additional 0.15 element of Class A misdemeanor DWI was either inherent in the elements the jury found or logically encompassed by its guilty verdict. See Niles, 555 S.W.3d at 572. Under these circumstances, we cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the constitutional error. See Neder, 527 U.S. at 19; Niles, 555 S.W.3d at 572. We sustain appellant’s third and fourth issues. E. Remedy Here, appellant was convicted of and sentenced under the punishment range for a Class A misdemeanor DWI, but the jury was charged and returned a guilty verdict based on the elements of a Class B misdemeanor DWI. See Tex. Penal Code Ann. §§ 12.21, 12.22, 49.04(a), (b), (d). Appellant does not dispute that the State proved the offense of DWI under subsection (a), a Class B misdemeanor. See id. § 49.04(a), (b); Ex parte Navarro, 523 S.W.3d 777, 780 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (Class B misdemeanor is lesser-included offense of Class A misdemeanor DWI); see also Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App. 2013) (appellate court may render judgment of conviction for lesser-included offense when there is proof beyond reasonable doubt of all elements of lesser-included offense). III. CONCLUSION Accordingly, we reverse the trial court’s judgment in part as to the third and fourth issues, affirm the judgment in part as to the first and second issues, render judgment that appellant is convicted of Class B misdemeanor DWI instead of Class 16 A misdemeanor DWI, and remand the case for further proceedings limited to a new punishment hearing.7 See Tex. R. App. P. 43.2(a), (c), (d). /s/ Charles A. Spain Justice Panel consists of Justices Christopher, Spain, and Poissant. Publish — Tex. R. App. P. 47.2(b). 7 Because we remand for the trial court to reassess punishment and resentence appellant in accordance with the judgment as rendered by this court, we need not reach appellant’s fifth issue, which concerns whether the trial court failed to follow certain articles in chapter 42 of the Code of Criminal Procedure in conjunction with appellant’s sentencing. See Tex. R. App. P. 47.1. 17	01-03-2023	04-02-2020
https://www.courtlistener.com/api/rest/v3/opinions/7023488/	PRESIDING JUSTICE MURRAY delivered the opinion of the court: Plaintiff, Chicago Cicero Currency Exchange, Inc., brought this action in the circuit court of Cook County against defendants, Continental Bank (Continental) and Jennifer Jones, for the wrongful dishonor of a $200 personal money order issued by Continental. The trial court entered judgment in favor of Continental and subsequently denied plaintiff’s motion to vacate the judgment. The trial court also entered an order dismissing Jennifer Jones as a party-defendant. Plaintiff appeals from the judgment, contending that Continental acted wrongfully in honoring the customer’s stop-payment request and refusing to honor the personal money order presented by plaintiff. At the bench trial plaintiff’s general manager, Steve Senescu, testified that on or about August 9, 1985, a woman presented a $200 personal money order for payment. The personal money order was issued by Continental on July 30, 1985. The woman, who identified herself as Jennifer Jones, filled out a check-cashing card, and the money order was cashed by plaintiff. Further, he testified that plaintiff deposited the money order for payment, but Continental denied payment upon presentation because the purchaser of the money order had executed a stop-payment order. Continental presented the testimony of Linda K. Stewart, who testified that she purchased the money order from defendant on July 30, 1985. Ms. Stewart stated that after the money order was stolen, she executed a stop-payment order at Continental and received a replacement cashier’s check. According to Ms. Stewart, she never filled in the name of the payee or signed the space indicated for the drawer’s signature. Plaintiff contends that Continental improperly refused to honor its personal money order. The parties do not dispute plaintiff’s status as a holder in due course. However, despite plaintiff’s status, Continental would not be required to honor the personal money order if it was obligated to follow the purchaser’s stop-payment request. The applicable provision in the Uniform Commercial Code reads in pertinent part: “A customer may by order to his bank stop payment on any item payable for his account ***.” (Ill. Rev. Stat. 1987, ch. 26, par. 4 — 403(1).) Official Comment 4 provides that the right to stop payment is not limited to checks, but extends to any item which is payable by any bank. (Ill. Ann. Stat., ch. 26, par. 4 — 403, Uniform Commercial Code Comment 4, at 534 (Smith-Hurd 1963).) However, this right to stop payment does not apply to cashier’s checks (Able & Associates, Inc. v. Orchard Hill Farms of Illinois, Inc. (1979), 77 Ill. App. 3d 375, 395 N.E.2d 1138) or certified checks (Ill. Rev. Stat. 1987, ch. 26, par. 4— 303). Plaintiff’s argument is based upon his position that personal money orders should be treated in the same manner as cashier’s or certified checks, which are generally not subject to stop orders against a holder in due course. Thus, the issue presented for review concerns the nature and characteristics of a personal money order. This issue was recently addressed in Duggan v. State Bank of Antioch (1989), 184 Ill. App. 3d 699, 540 N.E.2d 1111, where the court held that when a bank receives a stop-payment order prior to acceptance of a money order, upon which the bank has not signed as a drawer, the bank may properly refuse to honor the personal money order pursuant to a stop-payment request. A personal money order is significantly distinguishable from a cashier’s check so that different rules concerning the application of stop-payment orders should apply. A cashier’s check is a bill of exchange or draft which is drawn by a bank upon itself. (H. Bailey, Brady on Bank Checks §1.11, at 1— 16 (5th ed. 1979).) A cashier’s check, considered accepted for payment by its issuance, is not subject to countermand through a stop order. (Able & Associates, Inc. v. Orchard Hill Farms of Illinois, Inc., 77 Ill. App. 3d at 382.) In addition, the bank issuing the cashier’s check fills in the payee’s name and an authorized representative of the bank signs as drawer. In contrast, personal money orders have been described as similar to checks in that the purchaser signs as drawer, a blank space is provided for the name of the payee, and the order must be endorsed. (H. Bailey, Brady on Bank Checks §23.15, at 23 — 33 (5th ed. 1979); Thompson v. Lake County National Bank (1975), 47 Ohio App. 2d 249, 353 N.E.2d 895.) Since a personal money order is not signed by an authorized representative of the issuing bank, it is more in the nature of an ordinary check than a bank obligation, and, thus, subject to stop-payment orders. Garden Check Cashing Service, Inc. v. First National City Bank (1966), 25 A.D.2d 137, 267 N.Y.S.2d 698, aff’d (1966), 18 N.Y.2d 941, 223 N.E.2d 566, 277 N.Y.S.2d 141. Plaintiff relies upon two Texas cases in support of the argument that a personal money order is not subject to a stop-payment request from the purchaser. However, these cases are clearly distinguishable from the present case. In Interfirst Bank Carrollton v. Northpark National Bank (Tex. Ct. App. 1984), 671 S.W.2d 100, the issue presented addressed the right of an issuing bank to stop payment on a personal money order on its own initiative. The court held that the absence of the bank’s signature on the instrument was not controlling, and the money order should be treated in the same manner as a cashier’s check. The instant case concerns the right of a purchaser to request and receive a stop-payment order and not the right of the issuing bank. The effect of a stop-payment request on an “official check” issued by one financial institution and drawn on a second institution was addressed in Guaranty Federal Savings & Loan v. Horseshoe Operating Co. (Tex. Ct. App. 1988), 748 S.W.2d 519. The court held that the “official check,” on which the bank inserted the name of the requested payee, was analogous to a cashier’s check, and a stop-payment order would not be allowed simply because the drawee and issuing bank were different. The issues are clearly distinguishable. The instrument in the instant case was a personal money order which did not contain the signature of a representative of the issuing bank. Section 3 — 401(1) of the Uniform Commercial Code provides that no one is liable on an instrument unless his signature appears upon it. (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 401(1).) Further, the demand to stop payment on the money order was received before the money order was accepted by Continental. Thus, Continental properly honored the purchaser’s stop-payment request and refused to honor the money order presented by plaintiff. Accordingly, the judgment of the circuit court is affirmed. Affirmed. PINCHAM and COCCIA, JJ, concur.	01-03-2023	07-24-2022
https://www.courtlistener.com/api/rest/v3/opinions/1357777/	666 S.E.2d 485 (2008) Alfred T. PICKETT, Marvin E. Baugh, Park R. Davidson, and David G. Baugh v. Ralph L. ROBERSON. No. 521P07. Supreme Court of North Carolina. August 26, 2008. Jennifer Harrod, Randall A. Underwood, Alan E. Ferguson, Greensboro, for Roberson. James G. Exum, Jr., Bruce P. Ashley, Patti Ramseur, Greensboro, for Pickett, et al. ORDER Upon consideration of the petition filed on the 23rd day of October 2007 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 26th day of August 2008."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2489733/	68 So.3d 234 (2011) JORDAN v. PAPPAS. No. SC11-164. Supreme Court of Florida. July 27, 2011. DECISION WITHOUT PUBLISHED OPINION Dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3783205/	The sole question involved in this case is whether the sustaining of the demurrers in cause No. 91170 on July 17, 1925, was a failure upon the part of the defendant in error "otherwise than upon the merits," for if the failure was otherwise than upon the merits she was entitled, under the provisions of Section 11233, General Code, to institute a new action within the period of one year from the date of such failure. The demurrers were filed and decided upon the ground that the action was not brought within the time limited by law for the commencement of such action, and, in the particular situation, were in effect demurrers upon the ground that the action was prematurely brought. The issue determined by the court in deciding the demurrers was not that upon the facts stated in the petition there was no liability of the plaintiffs in error to the defendant in error by reason of the transactions therein set forth, but that the cause of action had not accrued at the time of the filing of the petition. While that court was in error in the sustaining of such demurrers, since the petition filed on February 21, 1923, alleged that her husband had lost to the plaintiffs in error, at gaming, between February 1, 1922, and January 13, 1923, and therefore would have admitted of proof of losses occurring prior to August 21, 1922, no motion to make definite and certain having been filed, the sustaining of such demurrers still amounted to a failure of the defendant in error other than upon the merits; and the Page 230 fact that she did not prosecute error from such judgment is not significant. The right to prosecute error is a privilege, but, generally speaking, not a duty. The plaintiffs in error were not permitted to complain of such judgment, and the defendant in error was not required to complain thereof. By virtue of such judgment she was entitled to the favor extended her by Section 11233, and to bring her action within one year thereafter. The judgment of the Court of Appeals will be affirmed. Judgment affirmed. MARSHALL, C.J., ALLEN, KINKADE, JONES and MATTHIAS, JJ., concur. DAY, J., concurs in the judgment. Page 231	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2042478/	890 N.E.2d 1286 (2004) 349 Ill. App. 3d 1043 LEWIS v. HUMAN RIGHTS COM'N. No. 3-03-0255. Appellate Court of Illinois, Third District. July 15, 2004. Rev'd & rem.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3000534/	NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 3, 2007* Decided May 3, 2007 Before Hon. DANIEL A. MANION, Circuit Judge Hon. ILANA DIAMOND ROVNER, Circuit Judge Hon. TERENCE T. EVANS, Circuit Judge No. 06-2318 JOSEPH A. TAYLOR, Appeal from the United States District Petitioner-Appellant, Court for the Southern District of Indiana, Terre Haute Division v. No. 05 C 125 STANLEY KNIGHT, Respondent-Appellee. Richard L. Young, Judge. ORDER Joseph Taylor was incarcerated at the Pendleton Correctional Facility in Indiana when he filed for a writ of habeas corpus, see 28 U.S.C. § 2254, claiming that prison officials improperly disciplined him for refusing to accept a housing reassignment. Taylor requested that counsel be appointed to represent him, but the district court, in a written order, denied that request. The court eventually denied the petition because Taylor’s disciplinary conviction was supported by evidence and * After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2). No. 06-2318 Page 2 he was afforded sufficient process. Taylor appeals that judgment but challenges only the denial of his request for appointed counsel. We affirm. Taylor argues that the district court erred by denying his request for appointed counsel “without giving reasons on the record or by written statement.” A litigant is not entitled to appointed counsel in a federal postconviction proceeding, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Powell v. Davis, 415 F.3d 722, 727 (7th Cir. 2005), though a district court may appoint counsel if “the interests of justice so require,” 18 U.S.C. § 3006A(a)(2)(B). We review for abuse of discretion a district court’s refusal to appoint counsel for an indigent petitioner in a habeas corpus case. Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). Accordingly, we will reverse only if, given the difficulty of the case and the petitioner’s ability, he could not obtain justice without a lawyer and he would have had a reasonable chance of success if he had been represented by counsel. Id. Here, Taylor does not challenge the district court’s ultimate determination that appointed counsel was not merited; he simply argues that the district court failed to explain itself. But the record shows otherwise. In its written order denying the motion for appointment of counsel, the court explicitly found that Taylor’s claims were not particularly complex and that Taylor had litigated many similar claims before. The court added that Taylor appeared to be informed about the facts and proceedings, was able to express himself in an understandable fashion, and showed no particular impediment to his trying the case himself. Moreover, the record demonstrates that Taylor’s underlying claims lacked merit, a conclusion reached by the district court and not even challenged on appeal. Thus, appointed counsel would not have made a difference in the outcome. The district court acted well within its discretion in denying Taylor’s request for appointed counsel. AFFIRMED.	01-03-2023	09-24-2015
https://www.courtlistener.com/api/rest/v3/opinions/470127/	791 F.2d 115 UNITED STATES of America, Appellee,v.Adam Verdell RED CLOUD, Appellant. No. 85-5406. United States Court of Appeals,Eighth Circuit. Argued April 17, 1986.Decided May 20, 1986. Glen H. Johnson, Rapid City, S.D., for appellant. Ted L. McBride, Rapid City, S.D., for appellee. Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and ROSENN,* Senior Circuit Judge. ROSENN, Circuit Judge. 1 A jury in the United States District Court1 for the District of South Dakota convicted Adam Verdell Red Cloud of carnal knowledge of a female under the age of 16 in violation of 18 U.S.C. Secs. 1153 and 2032 (1982). On appeal Red Cloud challenges the sufficiency of the evidence to support the verdict. We affirm the judgment of the district court. I. 2 On February 9, 1985, the defendant attended a party at a private residence on the Pine Ridge Indian Reservation. At about 3:00 A.M., his hostess called the tribal police, who dispatched officers William Brewer and George Twiss to her home. The two officers later testified that upon their arrival the hostess told them that she didn't "want things like that happening in her house," led them to a closed bedroom door, and asked them to remove two persons from the bedroom. Officer Twiss opened the door and shined a flashlight into the darkened room. The officers testified that they saw the 44-year-old defendant lying on top of Rhonda Center, a 14-year-old girl. The defendant wore only undershorts, pulled below his knees, and an undershirt. Rhonda appeared to be naked. Her legs were on either side of the defendant's waist and his motions indicated that they were engaging in sexual intercourse. 3 Red Cloud shouted profanities at the officers and demanded that they extinguish the light and leave. Sergeant Brewer told Red Cloud that they were police officers responding to a complaint. The defendant asked the officers to allow him and his companion an opportunity to dress, and the officers left the bedroom. In a few minutes, the defendant and Rhonda stepped out of the bedroom fully dressed. 4 The indictment charged the defendant with violating 18 U.S.C. Secs. 1153 and 2032. Section 2032 forbids anyone to "carnally know[ ] any female, not his wife, who has not attained the age of sixteen years." Section 1153 provides, inter alia, that section 2032 shall have effect in "Indian country." 5 At trial, witnesses for the prosecution, including the two arresting officers, Rhonda, and her grandmother, provided no direct evidence of penetration of the victim's genitalia. The two officers, however, described what they had seen in the bedroom. When the Government called Rhonda to testify, she did not respond to any questions. The defendant later called her as his witness and she testified that she had informed her mother, her grandmother, and a court appointed investigator, that she never had intercourse with Red Cloud. On cross-examination, however, Rhonda admitted that she had told the prosecutor that very morning that she did have intercourse with Red Cloud. When the prosecutor asked her at trial which statment was correct, she did not respond. 6 The defendant, testifying in his own defense, denied having sexual relations with Rhonda. He stated that he had climbed into bed alone and passed out from excessive drinking, unaware that Rhonda shared his bed. The jury did not find the defendant credible and returned a verdict of guilty. II. 7 An appellate court reviewing a conviction for the sufficiency of the evidence 8 is required to view the evidence in the light most favorable to the verdict, giving the prosecution the benefit of all inferences reasonably to be drawn in its favor from the evidence. The verdict may be based in whole or in part on circumstantial evidence. The evidence need not exclude every reasonable hypothesis except that of guilt; it is sufficient if there is substantial evidence justifying an inference of guilt as found irrespective of any countervailing testimony that may have been introduced. 9 United States v. Lincoln, 630 F.2d 1313, 1316-1317 (8th Cir.1980). 10 The defendant asserts that the prosecution failed to prove that penetration, an essential element of the offense, occurred. Penetration is the slightest insertion of the male sexual organ into the external female sexual organ. See, e.g., Hice v. State, 268 Ark. 57, 593 S.W.2d 169, 170-71 (1980). In support of his argument, Red Cloud notes the absence of any direct evidence of penetration in the form of medical proof or testimony of the alleged victim. Moreover, he argues, the indirect evidence provided by the officers' testimony did not logically support an inference of penetration and is insufficient to sustain the verdict. This court must determine whether on the record here the jury could reasonably have drawn the indispensible inference of penetration. 11 We begin by noting that although the defendant contradicted the officers' testimony concerning the defendant's physical position and actions when they first arrived, the jury unquestionably acted within its province in believing the officers rather than Red Cloud. Red Cloud does not challenge this credibility determination. 12 We must then determine whether the discovery of these two persons in the circumstances detailed by the officers can logically support an inference of penetration. Penetration "can be proved by circumstantial evidence, and when there is some proof, it is a question of fact whether it occurred." In the Interest of Isaac Williams, Jr., 24 Ill.App.3d 593, 321 N.E.2d 281, 284 (1974); see also State v. Craig, 219 Neb. 70, 361 N.W.2d 206, 214 (1985); Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133, 136 (1978). The defendant, in support of his position that the evidence cannot support such an inference, cites several cases that emphasize that an inference is permissible only if it is logical and not mere conjecture. See, e.g., Martinez v. People, 160 Colo. 534, 422 P.2d 44, 45 (1966) (an inference is permissible if the inferred fact follows "ordinarily and logically"). Red Cloud fails, however, to argue persuasively that the facts of this case do not directly support an inference of penetration. In fact, Red Cloud's and Rhonda's position on the bed when the officers entered the bedroom, along with Red Cloud's movements, plainly evinced an act of sexual intercourse. The prosecution need not exclude every reasonable hypothesis except that of guilt. United States v. Nabors, 762 F.2d 642, 653 (8th Cir.1985); Lincoln, 630 F.2d at 1317. It may be conceivable that legal penetration had not occurred, but the realities of human nature make such possibility exceedingly remote.III. 13 We accordingly conclude that the Government introduced sufficient evidence at trial to justify the inference beyond a reasonable doubt that penetration had occurred and to support the defendant's conviction.2 We affirm the judgment of the district court. * Max Rosenn, Senior Circuit Judge, United States Court of Appeals for the Third Circuit, sitting by designation 1 The Honorable Donald J. Porter, Chief Judge, United States District Court for the District of South Dakota 2 The defendant raised other objections on appeal. After reviewing the applicable portions of the record and the defendant's legal arguments, we reject these objections as wholly without merit and dismiss them without further discussion	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3779109/	This is an appeal from a judgment of the Court of Common Pleas of Marion County dismissing the complaint filed by plaintiff-appellant, John D. Hecker, against defendants-appellees, Norfolk Western Railway Company and W.E. Knight. On January 12, 1989, appellant filed an action against appellees for personal injuries received in an accident which occurred on January 13, 1987. Appellant voluntarily dismissed that action in accordance with Civ.R. 41(A)(1)(a).1 Notice of that dismissal was mailed to counsel for appellees on November 8, 1990 and filed with the court on November 13, 1990. Pursuant to R.C. 2305.19,2 appellant refiled the action against appellees on November 13, 1991. Appellant's counsel filed instructions with the clerk to "hold without service until further request." On February 24, 1992, the trial court filed asua sponte motion to dismiss the action for want of prosecution. On motion of appellant, for good cause shown, the trial court granted appellant until April 10, 1992, to issue service of summons or otherwise prosecute the action. On April 10, 1992, appellant issued instructions for service of summons by certified mail. Service was subsequently completed and appellees filed a motion to dismiss the complaint, pursuant to Civ.R. 12(B), for failure to state a claim upon which relief could be granted. The trial court granted appellees' motion to dismiss the complaint, finding that the prior action was dismissed on November 8, 1990, the date of service by mail, and the second action was not "commenced" until April 10, 1992, the date appellant requested issuance of summons from the clerk. Accordingly, the trial Page 545 court found that appellant did not meet the requirements of the savings statute, R.C. 2305.19. Appellant asserts one assignment of error on appeal: "The trial court erred in dismissing the plaintiff's complaint in its order of July 1, 1992." The issue presented in this appeal is whether Civ.R. 3(A) supersedes the procedural requirements of R.C. 2305.17. A plaintiff may voluntarily dismiss an action "by filing a notice of dismissal at any time before the commencement of trial * ." Civ.R. 41(A)(1)(a). The notice of dismissal in this case was filed on November 13, 1990. The one year period for refiling the action began to run on that date. The trial court erred in finding that the dismissal was effective on November 8, 1990, the date of service. Civ.R. 3(A) provides that "[a] civil action is commenced by filing a complaint with the court if service is obtained within one year from such filing upon a named defendant * ." "Filing" is defined in Civ.R. 5(E) as filing with the clerk of court. The trial court erroneously relied upon R.C. 2305.17, which provides that an action is commenced "by filing a petition in the office of the clerk * * together with a praecipe demanding that summons issue * * ." Section 5(B), Article IV, Ohio Constitution provides, in part: "The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." R.C. 2305.17 was in existence before the Civil Rules became effective. The Civil Rules do not require that a praecipe for summons be filed with the complaint, but rather, Civ.R. 3(A) provides that an action is commenced by filing a complaint and obtaining service within one year from the date of filing. Civ.R. 4(A) provides that, absent instructions from the plaintiff, the clerk must issue a summons for service upon the filing of a complaint. To the extent R.C. 2305.17 requires a praecipe for summons, it is superseded by Civ.R. 3(A). Appellant met the requirements of Civ.R. 3(A) and R.C.2305.19 by filing his complaint within one year of the date of his prior dismissal and obtaining service within one year of the date of filing the complaint in the new action. The trial court erred in dismissing the complaint. Appellant's assignment of error is sustained. Page 546 The judgment of the Court of Common Pleas of Marion County is reversed and this cause is remanded to that court for further proceedings. Judgment reversedand cause remanded. EVANS, P.J., and SHAW, J., concur. 1 Although the notice of dismissal is entitled "Stipulation of Dismissal," it clearly is not a stipulation pursuant to Civ.R. 41(A)(1)(b) as it is signed by appellant's counsel only. Despite its title, it is a notice of dismissal pursuant to Civ.R. 41(A)(1)(a). 2 R.C. 2305.19 provides that: "In an action commenced * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date." A voluntary dismissal by the plaintiff is clearly a failure "otherwise than upon the merits." See Costell v. Toledo Hosp. (1988), 38 Ohio St.3d 221,527 N.E.2d 858; Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, paragraph two of the syllabus; and McCullough v. The Budd Co. (July 23, 1992), Wyandot App. No. 16-92-12, unreported, 1992 WL 180096.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/756152/	149 F.3d 1188 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Juan Michael ONTIVEROS, Appellant. No. 97-4160. United States Court of Appeals, Eighth Circuit. Submitted: May 15, 1998.Filed: May 21, 1998. Appeal from the United States District Court for the District of Minnesota. Before ARNOLD and FAGG, Circuit Judges, and BOGUE,* District Judge. PER CURIAM. 1 Juan Michael Ontiveros pleaded guilty to conspiracy to distribute marijuana. On appeal, Ontiveros contends the district court improperly rejected his request to withdraw his guilty plea. We disagree. After considering the record and the parties' submissions, we conclude Ontiveros failed to carry his burden to establish a fair and just reason to withdraw his plea and the district court's ruling was not an abuse of discretion. We thus affirm Ontiveros's conviction without further discussion. See 8th Cir. R. 47B. 2 A true copy. * The Honorable Andrew W. Bogue, United States District Judge for the District of South Dakota, sitting by designation	01-03-2023	04-18-2012
https://www.courtlistener.com/api/rest/v3/opinions/742787/	116 F.3d 1485 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Jose Zavala ANDURAY, Petitioner-Appellant,v.Ernest C. ROE, Warden; Attorney General of the State ofCalifornia, Respondents-Appellees. No. 96-55906. United States Court of Appeals, Ninth Circuit. Submitted June 17, 1997.*Decided June 23, 1997. Appeal from the United States District Court for the Central District of California, D.C. No. CV-95-06096-CBM; Consuelo B. Marshall, District Judge, Presiding. Before GOODWIN, SCHROEDER, and TASHIMA, Circuit Judges. 1 MEMORANDUM 2 Jose Zavala Anduray, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his jury conviction for kidnapping for ransom and robbery. We review de novo a district court's decision on a section 2254 petition, Duckett v. Godinez, 67 F.3d 734, 739 (9th Cir.1995), cert. denied, 116 S. Ct. 1549 (1996). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm for the reasons stated in the magistrate judge's report and recommendation filed on March 28, 1996, and adopted by the district court on April 24, 1996. 3 AFFIRMED. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4 * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/2089805/	908 N.E.2d 711 (2009) ROMAN v. STATE. No. 84A01-0811-CR-535. Court of Appeals of Indiana. June 8, 2009. KIRSCH, J. Disposition of case by unpublished memorandum decision. Affirmed. RILEY, J., concurs. MATHIAS, J., concurs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/408336/	688 F.2d 819 Dinkinsv.U. S. Postal Service 81-1814 UNITED STATES COURT OF APPEALS Third Circuit 6/17/82 1 M.S.P.B. PETITION FOR REVIEW DENIED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/233365/	210 F.2d 287 Application of WEISKOPF. Patent Appeals No. 5992. United States Court of Customs and Patent Appeals. February 3, 1954. Harry Cohen and Edwin Levisohn, New York City (Harold I. Kaplan, New York City, of counsel), for appellant. E. L. Reynolds, Washington, D. C. (J. Schimmel, Washington, D. C., of counsel), for Commissioner of Patents. Before GARRETT, Chief Judge, and O'CONNELL, JOHNSON, WORLEY, and COLE, Judges. O'CONNELL, Judge. 1 This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the final rejection by the Primary Examiner of claims 5, 6, and 8 of appellant's application for a patent on new and useful improvements relating to a method of preparing histologic tissues for microscopic examination. No claim was considered allowable either by the examiner or the board, in view of the disclosure of appellant's prior patent, the patent to Weiskopf, No. 2,393,580, granted January 22, 1946. Claims 5 and 6 are representative: 2 "5. In the preparation of tissue for microscopic examination according to which the tissue is immersed successively in a plurality of liquid agents for fixing, dehydrating and infiltrating the same, the method which comprises positioning the tissue vertically in each of said liquids, and turning the tissue alternately in opposite directions at a speed of from about one to about ten oscillations per minute about a vertical axis for a period of at least several minutes while the tissue is immersed in the liquid. 3 "6. In the preparation of tissue for microscopic examination according to which the tissue is treated with a liquid agent for fixing the same, the method which comprises immersing the tissue in said liquid fixing agent in vertical position and at a speed of from one to ten oscillations per minute turning the tissue alternately in opposite directions about a vertical axis in said liquid." 4 The claimed improvement for which appellant seeks this additional patent may be readily understood by a comparison of the disclosure in his prior patent with appellant's specification in the case at bar,1 wherein it is stated: 5 "According to the method disclosed in my United States Patent No. 2,393,580 granted January 22, 1946 for Method of Preparing Tissue, the tissue is turned while immersed in the several liquid agents, including the infiltrating and staining agents, thereby shortening the immersion periods previously required and obtaining better sections or slides. 6 "In accordance with my present invention and pursuant to the primary object thereof, the required periods of immersion are each further decreased. Briefly stated, this important result is accomplished by moving the tissue alternately in opposite directions while immersed in the several liquid agents, respectively. I attribute the improved action to the increased relative movement between the tissue and the liquid in which it is immersed, the increased relative movement serving to accelerate the penetration of the liquid agent into the tissue." 7 Appellant's patent included a showing that the fixation treatment of the tissue was reduced from about two days, ordinarily required by certain methods of the prior art, to a fixation which "can be accomplished in accordance with the present invention in from 15 minutes to four hours depending upon the nature of the tissue, the size of the specimen, and the preference of the pathologist under whose direction the tissue is prepared." 8 Appellant relies upon a showing here, asserted to be patentably distinct over the disclosure of his patent, that the required periods of immersion of the tissue in the several liquid agents are further decreased from four or five hours to three and one-half hours. How the claimed improvement was brought about is thus described in two excerpts from the brief of counsel for appellant, who emphasized therein the words "same" and "oscillated": 9 "It should be observed therefore, at the outset, that as described in his patent the method initially suggested by applicant involved turning the tissue continuously in the same direction while the tissue is immersed in the several liquids respectively. 10 * * * * 11 "More specifically, applicant has discovered that if the tissue is oscillated in the liquid while immersed therein, i. e. if the direction of movement is periodically changed, increased penetration of the tissue is obtained in a given length of time and less time is required for the desired thorough penetration of the tissue by the fixative and other reagents." 12 In the letter of the Primary Examiner with respect to the denial of appellant's motion for reconsideration, the examiner noted, among other stated reasons, that in the case at bar the accelerated penetration of the liquid agent into the immersed tissue, if any, was due to the slight increase in the agitation or manipulation of the immersed tissue defined by the appealed claims. This accomplishment, he held, represents no more than an expected result, because the purpose of the agitation is to facilitate the penetration, and the application of such an expedient by oscillation to the method previously patented to appellant was obvious and without patentable merit. In support of his final rejection, the examiner further stated: 13 "Claims 5, 6 and 8 are again rejected as drawn to an arbitrary, and/or uninventive step not rising to the dignity of invention in view of Weiskopf 2,393,580 who shows all of applicant's process except the changes in direction of rotation. This type of agitation is widely known and highly prevalent in the agitator type of washing machine. 14 * * * * 15 "Regardless of the showing of the superiority, even if it does exist, the terminology of the patent is generic to any kind of rotation and may well read on applicant's oscillatory motion. Oscillatory motions as a means of agitation is so well known that no authority or reference is seen as necessary to show it." 16 The sole rejection before this court is the final holding by the tribunals of the Patent Office that the appealed claims are not patentable over the disclosure of appellant's patent. It is conceded that the only distinction between the patent disclosures and that of the present application resides in the manner of rotating the suspended tissue while immersed in the liquid bath. 17 The board, in affirming the action of the examiner, remarked that the patent does not state that the rotation of the suspended tissue must be in one and the same direction. That specification explicitly provides that, while immersed in the bath, "the tissue specimens are continuously turned" and "kept in motion preferably by rotating the tissue specimen slowly in the said liquid." 18 We have here italicized the word "preferably" as indicating to any person skilled in the art who may practice the invention of the patent, that he is not confined by its teaching to rotate the suspended tissue in one and the same direction. 19 Counsel for appellant vigorously argue here that although the examiner referred to the similar mode of operation in an agitator type of washing machine, he cited no particular reference for the rejection of the claims on that basis; and that the examiner's reliance on the mode of operation of a certain type of washing machine was entirely improper, apart from the fact that the washing machine art is obviously nonanalogous to, and far removed from, the arts of pathology and microscopy. 20 Appellant's argument on this point is without merit. Officials of the Patent Office in the rejection of claims for a patent are not required to verify facts which everybody knows are true. If the facts relied upon by the examiner do not constitute a matter of common knowledge, appellant may not for the first time challenge the validity of his rejection for that reason on appeal to this court. In re Swain, 156 F.2d 239, 33 C.C.P.A., Patents, 1250; Rule 132 of the Rules of Practice of the United States Patent Office, 35 U.S.C.A.Appendix. Furthermore, a reference cited from alleged nonanalogous art is a proper reference, if the disclosure thereof suggests doing that which the applicant has relied upon to endow his claims with patentable distinction. In re Fridolph, 134 F.2d 414, 30 C.C.P.A., Patents, 939; In re Stover, 146 F.2d 299, 32 C.C.P.A., Patents, 823; In re Zabel, 186 F.2d 735, 38 C.C.P.A., Patents 832; In re Berliner, 195 F.2d 918, 39 C.C.P.A., Patents, 928. 21 The board remarked that the appealed claims are limited to oscillating or reversing the direction of rotation of the tissue while immersed in the liquid, in which respect they differ from the language of the patented claims. 22 We agree with the tribunals of the Patent Office that no invention over the prior art resides in the distinction thus defined by the claims on appeal. Appellant may not extend the monopoly incident to his original patent by claiming in different phraseology the inventive concept upon which the patent was granted. In re Ward, 150 F.2d 436, 32 C.C.P.A., Patents, 1238. 23 No useful purpose would be served here by the statement and discussion of additional points raised by counsel for appellant, and the decision of the Board of Appeals is accordingly affirmed. 24 Affirmed. Notes: 1 The Solicitor for the Patent Office briefly describes the subject matter common to both application, relative to the basic preparation of the histologic tissue: "* * * The preparatory operations involve immersion of the tissue in a series of liquid agents for certain periods of time, first to fix the tissue, then to wash to remove the fixative, then to dehydrate the tissue, then to clarify, then to infiltrate with materials, such as paraffin, celloidin, etc. Then the tissue is cut into sections of the desired thickness, then treated to remove the paraffin or other infiltrating material, and finally stained and mounted on slides."	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2042520/	890 N.E.2d 1285 (2004) 349 Ill. App. 3d 1040 PEOPLE v. DIAZ. No. 2-03-0830. Appellate Court of Illinois, Second District. July 27, 2004. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/408443/	688 F.2d 823 Owensv.Marks 81-2387 UNITED STATES COURT OF APPEALS Third Circuit 6/25/82 1 M.D.Pa. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/408479/	688 F.2d 825 U. S.v.Civiletti 81-1163 UNITED STATES COURT OF APPEALS Third Circuit 5/27/82 1 E.D.Pa. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3017155/	_____________________ No. 95-2919 _____________________ James Donald Callender, * * Appellee, * Appeal from the United * States District Court v. * for the Northern * District of Iowa. Sioux City Residential Treatment * Facility, Steve Sholl, and Kenna Norby, * * Appellants. * ___________________ Submitted: April 11, 1996 Filed: July 10, 1996 ___________________ Before BEAM, Circuit Judge, MURPHY, Circuit Judge, and NANGLE, Senior District Judge.* ___________________ NANGLE, Senior District Judge. The appellants-defendants appeal from the district court's grant of summary judgment in favor of appellee James Callender on his procedural due process claim, as well as the award of attorneys’ fees to appellee. The appellants challenge the district court's findings that the individual defendants are liable to Mr. Callender, that Mr. Callender had a protected liberty interest in remaining in the work release program, that Mr. Callender was not given the procedural due process to which he was entitled, that the case was not moot, that the defendants were not entitled to qualified immunity on the procedural due process claims, that Mr. * The HONORABLE JOHN F. NANGLE, Senior United States District Judge for the Eastern District of Missouri, sitting by designation. Callender was entitled to an award of emotional distress damages and that Mr. Callender was entitled to an award of attorneys’ fees. Because we find that the revocation of Mr. Callender’s work release program does not implicate a liberty interest protected by the Fourteenth Amendment, we reverse the judgment of the district court without addressing the other arguments raised on appeal. I. James Callender was convicted by a jury of assault with intent to commit sexual abuse causing bodily injury in September, 1987. Callender proclaimed his innocence throughout the trial and appealed his conviction. He was sentenced to 5 years in prison and was committed to the Iowa Department of Corrections on November 2, 1987. On July 1, 1988, Callender was approved for work release by the Iowa Board of Parole. On July 18, 1988, he signed a temporary work release agreement wherein he agreed to abide by the conditions of the program and he was transferred from the Iowa Men’s Reformatory to the Sioux City Residential Treatment Facility that same day. Shortly after arriving at the facility, Callender was interviewed by appellants Steve Scholl, the residential manager, and Kenna Norby, a residential counselor. During the interview process, appellants explained to Callender that a condition of the sex offender program, which was part of his work release program, was that he admit his guilt and accept responsibility for his actions. Callender refused to admit his crime and he was transferred out of the facility on July 20, 1988. He was first transferred to the Woodbury County Jail and, after being housed at several different institutions for approximately two or three months, was ultimately transferred back to the Iowa Men’s Reformatory. On July 26, 1988, Callender was given a notice -2- stating that the Department of Corrections had determined that he -3- had not met work release expectations and that the Board of Parole would review the case and issue a written decision. On September 21, 1988, the Parole Board ordered that Callender’s work release be revoked and that he be committed to the custody of the Iowa Department of Corrections. On February 8, 1989, the Community Placement Manager conducted an administrative review of Callender’s case and concluded that he would still recommend that Callender’s work release status be revoked. Callender’s conviction was affirmed on May 23, 1989, he was paroled on July 19, 1989, and his sentence discharged on October 19, 1989. On February 23, 1989, Callender’s complaint against defendants Sioux City Residential Treatment Facility, Steve Scholl and Kenna Norby was filed alleging violations of his constitutional rights. The Court dismissed the treatment facility as a defendant in its initial review of the case. Callender filed a motion for summary judgment and appellants filed a cross-motion for summary judgment. On April 19, 1993, the district court granted Callender’s motion for summary judgment, and denied the appellants’ motion, holding that Callender’s procedural due process rights had been violated because he was deprived of the liberty interest of remaining in the work release program without a preliminary hearing. The Court further held that, although requiring plaintiff to admit his guilt violated his Fifth Amendment right against self-incrimination, the appellants were entitled to qualified immunity on that claim. On June 26, 1995, the Court awarded Callender $2,240.00 in damages for mental and emotional distress, $1.00 in nominal damages and refused to award damages for lost wages and punitive damages. On July 24, 1995, the Court awarded Callender $11,555.25 in attorneys’ fees and $245.70 in expenses. -4- -5- II. We review a district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the non- moving party. Marshall v. Unum Life Insurance Co., 13 F.3d 282, 283 (8th Cir. 1994). The district court held that, while Callender had no liberty interest in obtaining work release status, he had a liberty interest in remaining in the work release program. We disagree. Protected liberty interests under the Fourteenth Amendment may arise from the Due Process Clause itself or from State laws. Edwards v. Lockhart, 908 F.2d 299, 301 (8th Cir. 1990). A liberty interest inherent in the Due Process Clause arises when a person has substantial, albeit conditional, freedom such as when he is on probation or parole. Edwards, 908 F.2d at 301. In Edwards, this Court held that a participant in an Arkansas work release program had a protected liberty interest that arose from the Due Process Clause itself because the participant no longer lived in an institution but lived in the community. Id. at 302. As the Tenth Circuit noted: “Edwards . . . correctly identifies the dispositive characteristic that marks the point at which the Due Process Clause itself implies a liberty interest: it is the fact of release from incarceration.” Harper v. Young, 64 F.3d 563, 566 (10th Cir. 1995), cert. granted, 64 USLW 3787, 64 USLW 3793 (U.S. May 28, 1996) (No. 95-1598). Unlike the work release program at issue in Edwards, Mr. Callender’s work release program, at least at the time of his termination, was more analogous to institutional life than it was to probation or parole. At the Sioux City Residential Treatment Facility, releasees can eventually earn furlough privileges. -6- Transcript of October 5, 1994, hearing at 70. However, those privileges have to be earned and Mr. Callender was not qualified -7- for those privileges at the time of his transfer out of the program. Id. Therefore, this Court finds that the Mr. Callender’s work release program did not provide the sort of substantial freedom that gives rise to a liberty interest inherent in the Due Process Clause. We further hold that the laws of Iowa do not create a liberty interest in remaining in the work release program. In support of its conclusion that appellee had such a state-created liberty interest, the district court relied upon this Court’s decision in Hake v. Gunter, 824 F.2d 610 (8th Cir. 1987). In that case, the court noted the two-part test then used to determine whether the state had created a constitutionally protected liberty interest: (1) whether the statutes contained particularized substantive standards that significantly guided decisions and (2) whether the statutes used mandatory language. Id. at 614. The district court found that the terms of Iowa Code § 906.41 were mandatory and that a liberty interest in remaining in work release was created by the state. Approximately two years after the district court’s order on the cross motions for summary judgment in this case, the Supreme Court issued its opinion in Sandin v. Conner, ___ U.S. ___, 115 1 The relevant portion of Iowa Code § 906.4 reads as follows: A parole or work release shall be ordered only for the best interest of society and the offender, not as an award of clemency. The board shall release on parole or work release any person whom it has the power to so release, when in its opinion there is reasonable probability that the person can be released without detriment to the community or to the person. . . . -8- S.Ct. 2293 (1995).2 In this seminal decision, the Court held that its prior emphasis on the mandatory language of statutes, rather than the essence of the deprivation, “encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges.” Id. at 2299. The Court held that the proper focus should be on whether the deprivation “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”. Id. at 2300. The Court reached this conclusion because the earlier approach discouraged state officials from codifying their administrative procedures and has inappropriately involved federal courts in the day-to-day management of prisons. Id. at 2299-2300. In Sandin, the Court found that 30 days of solitary confinement, when compared with the inmate’s overall prison environment, was not the “type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Id. at 2301. In Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), the First Circuit had occasion to address the question of whether revocation of work release implicated a state-created liberty interest under the standard of Sandin. The inmate in Dominique had been on work release for almost four years during which time he was allowed to become a mechanic for an employer and also allowed to open his own vehicle repair shop. Id. at 1157. When his participation in the program was revoked, he was transferred to a medium security institution without ever receiving a written statement concerning his removal. Id. The inmate alleged that his revocation violated the Due Process Clause of the Fourteenth Amendment and the Ex Post 2 Sandin applies retroactively to this case. See Dominique v. Weld, 73 F.3d 1156, 1160 n.6 (1st Cir. 1996)(citing Rivers v. Roadway Express, Inc., ___ U.S. ___, 114 S. Ct. 1510, 1519 (1994) and Harper v. Virginia Department of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 2517 (1993)). -9- Facto Clause. Id. On appeal, the First Circuit applied Sandin v. Conner and concluded that, because the conditions at the medium -10- security facility were similar to those ordinarily experienced by a large number of inmates on a daily basis, placement in such a facility was not an atypical hardship. Id. at 1160. The Court noted that the change between the “quasi-freedom” of work release and a medium security facility may have been a significant deprivation but, nonetheless, it was not an atypical deprivation. Id. The Court also found that the state’s action did not affect the duration of the inmate’s sentence in any way. Id. In this case, revocation of Callender’s work release program was not an atypical or signficant deprivation. Within two or three months, Mr. Callender was returned to the same institution that he had left upon being granted work release. Clearly, many inmates endured the same conditions of confinement that Mr. Callender did when he was transferred back to the Iowa Men’s Reformatory. Moreover, unlike the inmate in Dominique, Mr. Callender never actually participated in the work release program at all; therefore, the deprivation in this case was not a significant one. Plaintiff makes much of the fact that upon his return to the Iowa Men’s Reformatory he lost all the privileges he had earned and had to start over within the institutional system. Although the Court is not unsympathetic to his plight, the appellee’s deprivation is not atypical of what inmates have to endure in daily prison life. Moreover, there is no indication in the record that the duration of Mr. Callender’s sentence was in any way affected by the revocation of his work release status. Accordingly, the Court finds no state- created liberty interest in remaining in Iowa’s work release program. III. In sum, this Court finds that Mr. Callender did not have a -11- constitutionally protected liberty interest in remaining in the work release program. Mr. Callender’s work release program was not -12- one that gave rise to a liberty interest inherent in the Due Process Clause itself. Moreover, revocation of his work release status did not impose an atypical and significant hardship upon him in relation to the ordinary incidents of prison life. Accordingly, the judgment is reversed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -13-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3036482/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-2387 ___________ Pieper, Inc., * * Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Land O’Lakes Farmland Feed, LLC, * a Delaware limited liability corporation, * * Appellee. * ___________ Submitted: November 4, 2004 Filed: December 9, 2004 ___________ Before RILEY, MELLOY, and COLLOTON, Circuit Judges. ___________ RILEY, Circuit Judge. This appeal arises out of Pieper, Inc.’s (Pieper) breach of contract action against Land O’Lakes Farmland Feed, LLC (LOLFF). Pieper appeals the district court’s1 grant of summary judgment to LOLFF on its affirmative defense of frustration of purpose. Frustrating Pieper, we affirm. 1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa. I. BACKGROUND Pieper and LOLFF entered into a Weaned Pig Purchase Agreement (Agreement), in which LOLFF agreed to purchase weaner pigs, i.e., weaned piglets, from Pieper. LOLFF intended to sell these pigs to third-party finishers, who would raise the pigs to market weight. Farmland Industries, Inc. (Farmland) then would buy market hogs from third-party finishers under the terms of an existing contract between Farmland and Pieper. Recital D of the Agreement explains LOLFF was to buy Pieper’s weaner pigs only while Farmland purchased market hogs from third-party finishers: LOLFF will purchase such pigs from [Pieper] only while its Customers have the ability to market such pigs utilizing the Farmland America’s Best Pork Marketing Agreement No. 8073 dated November 14, 2000 and originally assigned to Pieper, Inc. In a deposition, Pieper’s president, Michael Pieper (Mr. Pieper), testified the Agreement depended on Farmland’s purchase of market hogs from third-party finishers: Q: Farmland had to take the pigs in order for this whole arrangement to work[,] right? A: Farmland had to take the pigs to make this whole agreement work. Q: Because the hogs that were raised by [third-party finishers] had to go to Farmland. Otherwise [Pieper] would be in trouble under [its] contract [with Farmland,] right? A: Yes, that’s right. We required [LOLFF] to sell the pigs back to Farmland. Q: And this deal was dependent upon [third-party finishers] being able to sell the market hogs to Farmland under Pieper’s . . . contract [with Farmland,] right? A: Yes. -2- Q: Because the hogs had to go to Farmland[,] right? A: Yes, they had to be delivered to Farmland. Farmland subsequently refused to buy market hogs from third-party finishers, declining to consent to an assignment of the Pieper and Farmland contract. Without the ability to sell weaner pigs to third-party finishers for sale to Farmland, LOLFF had no reason to buy pigs from Pieper. As a result, LOLFF advised Pieper “it will no longer purchase pigs from Pieper under the [Agreement], and such Agreement shall be terminated effective immediately.” Pieper filed suit against LOLFF, alleging LOLFF breached the Agreement by failing to buy Pieper’s weaner pigs. In its answer, LOLFF asserted frustration of purpose as an affirmative defense. The parties filed cross motions for summary judgment. Pieper argued summary judgment was appropriate, because there was no genuine issue of material fact that LOLFF had breached the Agreement. LOLFF argued it was excused from performing, because its principal purpose behind the Agreement had been frustrated. The district court first determined LOLFF had breached the Agreement; however, the district court later granted summary judgment to LOLFF on its affirmative defense of frustration of purpose. The district court relied on Recital D and Mr. Pieper’s testimony to determine LOLFF’s principal purpose in entering into the Agreement. The district court determined LOLFF’s principal purpose was to sell Pieper’s pigs to third-party finishers who then would sell market hogs to Farmland, and the principal purpose had been frustrated by Farmland’s refusal to buy market hogs from third-party finishers. On appeal, Pieper argues the district court erred in relying on extrinsic evidence to determine LOLFF’s principal purpose in entering into the Agreement. Pieper contends (1) the Agreement is clear and unambiguous, (2) Recital D creates -3- no legal obligation, and (3) LOLFF’s primary purpose was to sell feed to third parties purchasing weaner pigs LOLFF acquired from Pieper.2 II. DISCUSSION We review de novo a district court’s grant of summary judgment. Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir. 2002). When considering a motion for summary judgment, we view the evidence in the light most favorable to the nonmoving party. Id. Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir. 1999). Under Minnesota law,3 frustration of purpose will excuse contract performance when: “(1) [t]he party’s principal purpose in making the contract is frustrated; (2) without that party’s fault; (3) by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made.” City of Savage v. Formanek, 459 N.W.2d 173, 176 (Minn. Ct. App. 1990) (citation omitted). “The principal purpose: ‘must be so completely the basis of the contract that, as both parties understand, without it the transaction would make little sense.’” Id. (quoting Restatement (Second) of Contracts § 265, cmt. a (1981)). Pieper argues the district court erred in relying on Recital D and on Mr. Pieper’s testimony to determine LOLFF’s principal purpose behind the Agreement. Pieper contends the district court should have relied on only the operable terms of the 2 “Always remember the distinction between contribution and commitment. Take the matter of bacon and eggs. The chicken makes a contribution. The pig makes a commitment.” John Mack Carter. 3 The Agreement expressly provides that the Agreement, and any disputes arising thereunder, “shall be governed and construed in accordance with the laws of the State of Minnesota.” -4- Agreement and should have found the principal purpose of the Agreement was to merely buy and sell pigs, with LOLFF supplying feed for third parties purchasing the weaner pigs LOLFF purchased from Pieper. Pieper correctly notes that, under Minnesota law, recitals do not create legal obligations. Berg v. Berg, 275 N.W. 836, 841-42 (Minn. 1937). However, in this case, the district court did not create any legal obligation beyond the operative provisions of the Agreement. Instead, the district court relied on extrinsic evidence to determine LOLFF’s principal purpose in entering into the Agreement. Minnesota courts have not directly addressed the question of whether a court may rely on extrinsic evidence to determine a party’s principal purpose. Without deciding the issue, the Minnesota Court of Appeals relied on extrinsic evidence to determine an employer’s principal purpose in entering into an employment contract with an employee. See Nat’l Recruiters, Inc. v. Toro Co., 343 N.W.2d 704, 708 (Minn. Ct. App. 1984) (in applying the doctrine of frustration of purpose, the court considered testimony from a company manager explaining the company’s purpose in hiring the individual was frustrated by elimination of the position). The use of extrinsic evidence to show a party’s principal purpose first was demonstrated in Krell v. Henry, [1903] 2 K.B. 740 (C.A.), the landmark case on frustration of purpose. In Krell, the court excused a prospective tenant from his obligation to pay for a room overlooking the King’s coronation route, when the King became ill and the coronation parade was cancelled. Id. at 740-41. The contract involved in Krell did not refer explicitly to the coronation, but the court nonetheless inferred the principal purpose had been frustrated. Id. at 754. Krell thus set forth the principle that a contract’s purpose may be inferred from surrounding circumstances: I think that you first have to ascertain, not necessarily from the terms of the contract, but, if required, from necessary inferences, drawn from -5- surrounding circumstances recognised by both contracting parties, what is the substance of the contract, and then to ask the question whether that substantial contract needs for its foundation the assumption of the existence of a particular state of things. Id. at 749. Relying on the principles enunciated in Krell, and the indirect authority from the Minnesota Court of Appeals in National Recruiters, Inc., we hold the district court did not err in considering extrinsic evidence to determine LOLFF’s principal purpose in entering into the Agreement. Based on the undisputed evidence outside the operative provisions of the Agreement, no doubt exists that LOLFF entered into the Agreement to sell weaner pigs to third-party finishers, who then would sell market hogs to Farmland. Recital D explicitly states LOLFF’s obligation to purchase weaner pigs from Pieper depended on Farmland’s purchase of market hogs from third-party finishers. Even Mr. Pieper testified the Agreement assumed Farmland would purchase market hogs from third-party finishers, and the “deal was dependent upon [third-party finishers] being able to sell the market hogs to Farmland.” Having determined LOLFF’s principal purpose in entering into the Agreement, we ask whether LOLFF’s performance was excused under the doctrine of frustration of purpose. Our review of the record leads us to conclude, as a matter of law, LOLFF’s purpose in buying pigs from Pieper was frustrated by Farmland’s refusal to purchase market hogs from third-party finishers. Farmland’s refusal completely frustrated the basic assumption upon which the Agreement was made and without which the Agreement makes no sense. Without the ability to sell the weaner pigs to third-party finishers for eventual sale to Farmland, LOLFF had no commercial reason to purchase pigs from Pieper. Additionally, Pieper did not present any evidence showing LOLFF was at fault with regard to Farmland’s decision not to purchase market hogs from third-party finishers. -6- III. CONCLUSION The district court properly granted summary judgment to LOLFF, and we affirm. _____________________________ -7-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3036486/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-2508 ___________ Joseph Stafford, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Gwen Brown, Case Manager, FCI- * Forrest City; Cathy Hicks, Camp * Administrator, FCI-Forrest City; * [UNPUBLISHED] M. D. Morrison, Warden, FCI-Forrest * City; John Does, Unknown Named * Employees, Federal Bureau of Prisons, * * Appellees. * ___________ Submitted: November 24, 2004 Filed: December 9, 2004 ___________ Before MURPHY, FAGG, and SMITH, Circuit Judges. ___________ PER CURIAM. Federal inmate Joseph Stafford appeals the district court’s1 Federal Rule of Civil Procedure 12(b)(6) dismissal of his action brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for failure to exhaust administrative remedies. Having carefully reviewed the record, see McAlphin v. Toney, 375 F.3d 753, 754 (8th Cir. 2004) (per curiam) (standard of review), we affirm. A prisoner cannot bring a Bivens action involving prison conditions before exhausting available administrative remedies. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). We agree with the district court that Stafford failed to provide proof of exhaustion as to his claim that he was transferred to the federal correctional institution partly in retaliation for successfully helping other inmates with legal and administrative matters. See Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003) (when multiple prison-conditions claims have been joined, § 1997e(a)’s plain language requires that available administrative remedies be exhausted as to all claims). While the grievance he offered contained assertions that he was transferred because of racial bias, it did not address his allegation about the transfer occurring due to his law-clerk activities. As to Stafford’s request for leave to amend, unlike the plaintiff in Kozohorsky, he was not specific enough as to how he intended to amend his complaint. Cf. Kozohorsky, 332 F.3d at 1143-44 (district court abused its discretion by implicitly denying motion to amend where requested amendment would have cured defect necessitating dismissal and not required additional discovery). The district court was thus required to dismiss Stafford’s complaint without prejudice. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (dismissal 1 The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Jerry W. Cavaneau, United States Magistrate Judge for the Eastern District of Arkansas. -2- required when inmate had not administratively exhausted before filing lawsuit). The dismissal should not, however, count as a “strike” for purposes of 28 U.S.C. § 1915(g), because Stafford alleged exhaustion in his complaint; we revise the judgment accordingly. Cf. Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996) (per curiam) (plaintiff who did not allege exhaustion of administrative remedies failed to state claim). ______________________________ -3-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/867974/	12-4481-cv Bob Cordell v. The McGraw-Hill Companies, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 16th day of May, two thousand thirteen. 5 6 PRESENT: ROBERT D. SACK, 7 RICHARD C. WESLEY, 8 SUSAN L. CARNEY, 9 Circuit Judges. 10 11 12 13 BOB CORDELL, on behalf of himself and 14 all others similarly situated, 15 16 Plaintiff-Appellant, 17 18 -v.- No. 12-4481-cv 19 20 THE MCGRAW-HILL COMPANIES, INC., 21 22 Defendant-Appellee, 23 24 25 26 FOR APPELLANT: GARY S. SNITOW, Milberg LLP (Sanford P. 27 Dumain, Benjamin Y. Kaufman, Milberg LLP; 28 Robert I. Lax, Lax LLP, on the brief), 29 New York, NY. 30 31 FOR APPELLEES: DAVID J. SHEEHAN, Baker & Hostetler LLP, 32 New York, NY (Lan Hoang, Baker & 33 Hostetler LLP, New York, NY; Mark I. 1 Bailen, Baker & Hostetler LLP, 2 Washington, D.C., on the brief). 3 4 Appeal from the United States District Court for the 5 Southern District of New York (Carter, J.). 6 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 8 AND DECREED that the order is AFFIRMED. 9 Plaintiff-Appellant Bob Cordell appeals from the 10 district court’s October 23, 2012 dismissal of his case 11 pursuant to Federal Rule of Civil Procedure 12(b)(6). 12 Cordell v. McGraw-Hill Cos., No. 12 Civ. 0637, 2012 WL 13 5264844 (S.D.N.Y. Oct. 23, 2012). “We review this dismissal 14 de novo, accepting all factual allegations in the complaint 15 as true and drawing inferences from those allegations in the 16 light most favorable to the plaintiff.” Fulton v. Goord, 17 591 F.3d 37, 43 (2d Cir. 2009) (quotation marks and 18 alterations omitted). We assume the parties’ familiarity 19 with the facts and procedural history of the case. 20 We affirm for substantially the reasons stated by the 21 district court in its well-reasoned order. We agree with 22 the district court that “a straightforward reading of the 23 foreign royalties provision” – which Cordell admits is 24 unambiguous – “demonstrates that foreign royalty payments 25 can be calculated in one of two ways: either based on sales 2 1 to the McGraw-Hill international book division or to third 2 parties for use outside the United States.” Cordell, 2012 3 WL 5264844, at *3 (emphasis in original) (quotation marks 4 omitted). “[T]he disjunctive clause [] gives McGraw-Hill 5 the option of remitting royalties [solely] from sales to its 6 international division.” Id. Similarly, the agreement 7 expressly allows McGraw-Hill to sell works to one of its own 8 divisions and to set prices “as it shall deem suitable.” 9 Joint App’x 19. Cordell’s arguments that McGraw-Hill has 10 breached the agreement by engaging in these actions are 11 unavailing. 12 The district court was also correct to dismiss 13 Cordell's claim for breach of the implied duty of good faith 14 and fair dealing because "New York law . . . does not 15 recognize a separate cause of action for breach of the 16 implied covenant of good faith and fair dealing when a 17 breach of contract claim, based on the same facts, is also 18 pled." Harris v. Provident Life & Accident Ins. Co., 310 19 F.3d 73, 81 (2d Cir. 2002). Had Cordell pleaded any facts 20 showing bad faith, or otherwise supporting his assertion 21 that McGraw-Hill set the prices for his works at improperly 22 low levels, the case might be different, but he did not do 23 so. 3 1 We have considered all of Cordell’s arguments and find 2 them to be without merit. For the reasons stated above, the 3 judgment of the district court is AFFIRMED. 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 4	01-03-2023	05-16-2013
https://www.courtlistener.com/api/rest/v3/opinions/756153/	149 F.3d 1188 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Alinzo M. PAIGE, Appellant. No. 97-1761WM. United States Court of Appeals, Eighth Circuit. April 22, 1998 Appeal from the United States District Court for the Western District of Missouri. Before FAGG and HANSEN, Circuit Judges, and STROM,* District Judge. PER CURIAM. 1 Alinzo M. Paige appeals from the guidelines sentence imposed by the district court. First, we reject Paige's argument that the district court's two-level enhancement for possession of a firearm during the course of a drug-trafficking offense is not supported by sufficient evidence. Second, although Paige's argument that the district court improperly increased Paige's sentence beyond the applicable guideline range was not preserved for appellate review, we find no error, plain or otherwise. Finally, Paige's argument that the district court improperly resentenced Paige on his drug conviction after his sentence for a drug-related gun conviction was vacated is foreclosed by the decisions of this court. See Gardiner v. United States, 114 F.3d 734, 735-36 (8th Cir.1997); United States v. Harrison, 113 F.3d 135, 137-39 (8th Cir.1997). We thus affirm Paige's sentence. See 8th Cir.R. 47B. * The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by designation	01-03-2023	04-18-2012
https://www.courtlistener.com/api/rest/v3/opinions/3130742/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-380-CR RUDOLPH ANTHONY GARZA APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM THE 371 ST DISTRICT COURT OF TARRANT COUNTY ---------- MEMORANDUM OPINION (footnote: 1) AND JUDGMENT ---------- We have considered the “Appellant's Motion To Waive And Dismiss Appeal And To Withdraw Notice Of Appeal.” The motion complies with rule 42.2(a) of the rules of appellate procedure. Tex. R. App. P. 42.2(a). No decision of this court having been delivered before we received this motion, we grant the motion and dismiss the appeal. See id.; Tex. R. App . P. 43.2(f). PER CURIAM PANEL: MCCOY, MEIER, and LIVINGSTON, JJ. DO NOT PUBLISH Tex. R. App . P. 47.2(b) DELIVERED: February 4, 2010 FOOTNOTES 1:See Tex. R. App . P. 47.4.	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/756154/	149 F.3d 1188 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. Harold Leroy PAGE; Jerry D. Ashburn; Steven Bruce Hepperle, Appellants,v.ELDORA BOYS TRAINING SCHOOL, sued as (1970 to 1974 ...Superintendent of Eldora Training School for Boys); LarryLukin, sued as Larry Lukin of Eldora Training School forBoys; Richard Turner, sued as Ex-Attorney General RichardTurner; Robert D. Ray, sued as Ex-Gov. Robert D. Ray;Unknown Superintendent, sued as I.S.M.F. Superintendent;Warden Haugh, sued as I.M.R. Warden Haugh; Director of IowaDepartment of Corrections, sued as Director of Corr.; ThomasMiller, sued as (1997 ... Tom Miller, Atty. Gen.); TerryBranstad, Governor, sued as Terry E. Branstad, Gov.; Stateof Iowa; John Doe, sued as John Doe # 4, 5, 6, 7, 8, 9, 10,11, 12, 13, 14, 15, 16, 17, 18, 19, and 20, were CottageManager's, cottage Staff, Health Center Staff, andCounselors at the Eldora Training School for Boy's; MaryVoss, a school teacher, at the Eldora Training School forBoys, Appellees. No. 98-2064. United States Court of Appeals, Eighth Circuit. Submitted: May 5, 1998.Filed: May 8, 1998. Appeal from the United States District Court for the Northern District of Iowa. Before FAGG, BEAM, and HANSEN, Circuit Attorneys. PER CURIAM. 1 Iowa inmates Harold Leroy Page, Jerry D. Ashburn, and Steven Bruce Hepperle appeal the district court's1 order dismissing their 42 U.S.C. § 1983 action. Having carefully reviewed the record, we affirm the judgment of the district court for the reasons stated in its order opinion. See 8th Cir. R. 47A(a). 2 A true copy. 1 The Honorable Edward J. McManus, United States District Judge for the Northern District of Iowa	01-03-2023	04-18-2012
https://www.courtlistener.com/api/rest/v3/opinions/3017186/	No. 95-3418 David Eagle, * * Plaintiff - Appellee, * * v. * * John D. Morgan, Individually and in his * official capacity as officer of the * Jonesboro Police Department; Donna * Bogard, Individually and in her official* capacity as officer of the Jonesboro * Police Department; David Allen, * Individually and in his official * Appeal from the United capacity as officer of the Jonesboro * States District Court Police Department; Terry Grooms, * for the Eastern Individually and in his official * District of Arkansas. capacity as officer of the Jonesboro * Police Department; Jack McCann, * Individually and in his official * capacity as officer of the Jonesboro * Police Department; Rohnny McDaniel, * Individually and in his official * capacity as officer of the Jonesboro * Police Department, * * Defendants - Appellants, * * John Doe, an unknown person, * * Defendant, * * City of Jonesboro, * * Defendant - Appellant. * Submitted: March 14, 1996 Filed: July 8, 1996 Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges. FLOYD R. GIBSON, Circuit Judge. David Eagle filed this suit against the City of Jonesboro (the "City") and various police officers employed by that municipality, seeking relief under 42 U.S.C. § 1983 (1994) and Arkansas tort law. The City and the officers presently appeal the district court's refusal to grant their motion for summary judgment. We reverse in part, dismiss in part, and remand for further proceedings. I. BACKGROUND In 1987, Wayne Ridout, a businessman from Searcy, Arkansas, informed local authorities that David Eagle had stolen enough lumber from Ridout's store to partially construct a new two-story home. Following a police investigation into the complaint, Eagle pleaded guilty in an Arkansas trial court to felony theft of property. Eagle had no prior criminal record and entered his plea pursuant to an enactment that allows Arkansas judges to indefinitely defer further proceedings and place first time felons on a tentative term of probation. See Ark. Code Ann. § 16-93-303(a)(1) (Michie Supp. 1996). If the defendant violates the requirements of his probation, the judge may declare him guilty and impose the punishment otherwise provided by law. Id. § 16-93-303(a)(2). On the other hand, the statute directs the court to dismiss the case and expunge the defendant's record if he "fulfill[s] . . . the terms and conditions of probation or [is] release[d] by the court prior to the termination period thereof." Id. § 16-93-303(b). Moreover, these measures occur "without court adjudication of guilt." Id. The trial court accepted Eagle's plea and required him to 2 spend forty-five days in the county jail, serve six years probation, and pay $25,000 in restitution to Ridout. Approximately three years later, a state judge terminated Eagle's probation and entered an order expunging his criminal record. The expungement decree expressly provided that it "restored [Eagle] to [his] civil and constitutional rights as if [the felony theft of property] had never been committed," and as a matter of law it "completely exonerate[d] [Eagle] of any criminal purpose."1 Ark. Code Ann. § 16-93-303(b)(2) (Michie 1987), amended by Ark. Code Ann. § 16-93- 303(b) (Michie Supp. 1996). Additionally, the state legislature has decreed that an expunged record should be treated as confidential and released only to the individual whose record was expunged and, in certain circumstances, to judicial or law enforcement personnel. Ark. Code Ann. § 16-90-903 (Michie Supp. 1996). After the state court struck the felony theft of property from Eagle's record, he began working as an auditor for the City. In the course of his employment, Eagle performed an audit of certain Jonesboro Police Department ("JPD") records and conducted a police salary survey to determine whether local officers were receiving competitive wages. The fruits of Eagle's labor, however, apparently displeased some law enforcement workers; several curious officers accessed the National Crime Information Center ("NCIC") and the Arkansas Crime Information Center ("ACIC") computer systems in an effort to confirm rumors that Eagle had a felony record. State guidelines governing the use of the ACIC system dictate that the computer network should, as relevant here, only be available to "criminal justice agencies in their official capacity," Ark. Code 1 The Arkansas General Assembly recently modified slightly the effects of an expunged conviction and altered the procedure through which a criminal defendant may obtain an expungement order. Compare Ark. Code Ann. 16-90-902, -904 to -905 (Michie Supp. 1996) with Ark. Code Ann. 16-93-301, -303(b) (Michie 1987)(amended 1995). These changes in state law are immaterial to our disposition of this appeal. 3 Ann. § 12-12-211(a) (Michie 1995), and the pertinent federal provision restricts NCIC access to "criminal justice agencies for criminal justice purposes," 28 C.F.R. § 20.33(a)(1) (1995). Despite these restrictions, JPD was not carrying on an official investigation of Eagle's criminal activity at the time the officers in this case made their inquiries. Further, because the responsible authorities had failed to file notification of the expungement of Eagle's record, the report obtained by the officers did not indicate that the listed felony offense had been stricken. This information regarding Eagle's criminal history was for some time also available from at least one other source. Before receiving belated notice that the felony had been removed from Eagle's record, the Arkansas State Police, in response to requests made pursuant to the Arkansas Freedom of Information Act, released to certain members of the public, including at least four reporters, unaltered copies of Eagle's criminal case file. On August 16, 1993, in an admitted effort to "throw doubt on [Eagle's police salary] survey results," appellant Rohnny McDaniel at a Jonesboro City Council meeting revealed the auditor's criminal history by publicly reading the following excerpt from Eagle's case file: At approximately 6:00 p.m. on Thursday, January 15, 1987, an investigator met with the Deputy Prosecuting Attorney and was advised that he had received information of a possible theft of materials from Ridout Lumber Company. According to the Deputy Prosecutor, it was believed that David Eagle had stolen building materials. On March 5, 1987, David Eagle pled guilty to one count of 41-2203, theft of property. Interestingly, McDaniel is the only individual appellant who did not personally access the NCIC/ACIC computer systems to verify the rumors about Eagle, but Eagle maintains that McDaniel gained his knowledge through the efforts of his police colleagues. 4 Eagle subsequently initiated this action against sundry JPD officers, individually and in their official capacities, and the City. Eagle asserts that the individual state actors violated his constitutional right to privacy when they conducted unjustified searches on the ACIC/NCIC computer databases and by causing the public disclosure of information about his expunged criminal record. Also, he contends that the City is liable because these constitutional violations were a result of the municipality's failure to properly train its employees in the use of the computer networks and because the alleged invasion of privacy occurred pursuant to an official custom or policy. Finally, Eagle declares that the officers' conduct constitutes the Arkansas tort of outrage.2 Claiming that Eagle's federal privacy claim does not describe a constitutional violation and, alternatively, that qualified immunity should protect the individual employees from liability, the officers and the City moved for summary judgment on this 42 U.S.C. § 1983 cause of action. In addition, they argued that the officials' behavior was not tortious under Arkansas' law of outrage. The district judge, relying on this Court's decision in Alexander v. Peffer, 993 F.2d 1348 (1993), determined that the facts, when construed in a manner most charitable to Eagle, stated an unconstitutional intrusion into Eagle's privacy; the judge also decided that the officers are not entitled to qualified immunity, and he thus refused to summarily dispose of this § 1983 claim. Moreover, while the district judge was "strongly inclined to 2 Eagle's First Amended Complaint appears to include certain claims in addition to those mentioned in the text. For example, Eagle seems to allege that the officers violated his First Amendment right to free speech. See First Amended Complaint, Count III. Additionally, he evidently seeks to impose liability under state law for a tortious invasion of his privacy. See id. at Count VII. Inexplicably, though, these causes of action are not mentioned in the parties' summary judgment submissions or in the district court's order. It necessarily follows that this opinion does not comment upon these apparent grounds for relief. 5 believe" that Eagle could not prevail under the tort of outrage, he concluded it would be inappropriate to dismiss this cause of action before giving the auditor an opportunity to present his evidence. The officers and the City have now filed an interlocutory appeal from the district court's denial of their summary judgment motion. For reversal, they claim that the facts, even when viewed in the light most favorable to Eagle, could not possibly support a finding that they violated his constitutional right to privacy. Also, the individual appellants continue to argue that qualified immunity shields their conduct. Furthermore, the officers insist that the district court improperly refused to grant summary judgment on the pendent state law claim. We consider these allegations seriatim. II. DISCUSSION A. Invasion of Privacy 1. Jurisdiction As a preliminary matter, we must address our jurisdiction to consider the officers' assertion that their actions did not amount to a constitutional violation. It is by now axiomatic that the federal appellate tribunals may normally review appeals only from "final decisions" issued by the district courts. See 28 U.S.C. § 1291 (1994); Johnson v. Jones, 115 S. Ct. 2151, 2154 (1995). Due to this statutory limitation upon our jurisdiction, a party is in most cases precluded from interrupting litigation by filing an interlocutory appeal from a district court's ruling. See Johnson, 115 S. Ct. at 2154-55. Of course, an order denying a litigant's motion for summary judgment is not typically considered a "final decision" worthy of immediate appellate attention. The Supreme Court has held, however, that a district court's 6 refusal to grant a public official's motion for summary judgment based on qualified immunity will, under certain circumstances, qualify as a "collateral order" from which the official may file a prompt appeal. Id. at 2155 (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). The Court has recently reiterated that this type interlocutory appeal is only appropriate when it involves "abstract issues of law" relating to qualified immunity. Id. at 2158. By contrast, where a public official merely challenges "a portion of a district court's summary judgment order that, though entered in a 'qualified immunity' case, determines only a question of 'evidence sufficiency,'" Id. at 2156, we cannot entertain the appeal. In other words, "a district court's pretrial rejection of a proffered qualified immunity defense is not immediately reviewable if the issue on appeal is whether the pretrial record is sufficient to create a genuine issue of material fact." Veneklase v. City of Fargo, 78 F.3d 1264, 1267 (8th Cir. 1996). In the case currently before us, we are called upon to decide whether the district court correctly concluded that the facts, when viewed in a light most favorable to Eagle, could substantiate a finding that the JPD officers violated Eagle's right to privacy. This constitutional question is inherently an "abstract issue of law" over which we presently have jurisdiction. Indeed, as a threshold element in any qualified immunity appeal, we must determine, as a matter of law, "whether the plaintiff has alleged the violation of a constitutional right," and "whether that right was clearly established at the time of the alleged violation." Manzano v. South Dakota Dep't of Social Services, 60 F.3d 505, 509 (8th Cir. 1995). To be sure, some factual matters remain disputed. For instance, Eagle contends that McDaniel and his peers at the JPD, acting in concert, were solely responsible for the dissemination of his criminal record, but the officers respond that members of the press also distributed this information. Disagreements such as this do not concern us here. Rather, in resolving this appeal, we will "take, as given, the facts that the 7 district court assumed when it denied summary judgment . . . ." Johnson, 115 S. Ct. at 2159. As an example, we will assume, as did the district court, that the appellant officers were the only persons who publicly revealed Eagle's criminal history. Mindful of these principles, we turn to the constitutionality of the officers' conduct. 2. The disclosure of Eagle's criminal history Eagle asserts that the officers violated his constitutional rights when they announced at the Jonesboro City Counsel meeting that he had previously pleaded guilty to felony theft of property. The Supreme Court has recognized that notions of substantive due process contained within the Fourteenth Amendment safeguard individuals from unwarranted governmental intrusions into their personal lives. Whalen v. Roe, 429 U.S. 589, 598 n.23 (1977). This right to privacy actually encompasses two separate types of interests. Id. at 598-99. "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Id at 599-600 (footnote omitted). Only the former concern, which has been characterized as the right to confidentiality, is at issue here. This protection against public dissemination of information is limited and extends only to highly personal matters representing "the most intimate aspects of human affairs." Wade v. Goodwin, 843 F.2d 1150, 1153 (8th Cir.), cert. denied, 488 U.S. 854 (1988). "[T]o violate [a person's] constitutional right of privacy the information disclosed must be either a shocking degradation or an egregious humiliation of her to further some specific state interest, or a flagrant bre[a]ch of a pledge of confidentiality which was instrumental in obtaining the personal information." Alexander v. Peffer, 993 F.2d 1348, 1350 (8th Cir. 1993). To determine whether a particular disclosure satisfies this exacting standard, we must examine the 8 nature of the material opened to public view to assess whether the person had a legitimate expectation that the information would remain confidential while in the state's possession. Sheets v. Salt Lake County, 45 F.3d 1383, 1387-88 (10th Cir.), cert. denied, 116 S. Ct. 74 (1995); see also Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 457-58 (1977)(suggesting that an individual's legitimate expectation of privacy plays a pivotal role in this constitutional analysis). "When the information is inherently private, it is entitled to protection." Fraternal Order of Police, Lodge 5 v. City of Philadelphia, 812 F.2d 105, 116 (3d Cir. 1987). We acknowledge that the exact boundaries of this right are, to say the least, unclear. Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206 (3d Cir. 1991)("[T]he contours of the confidentiality branch are murky."), cert. denied, 502 U.S. 1095 (1992). In canvassing the relevant cases, however, we discovered that courts have traditionally been reluctant to expand this branch of privacy beyond those categories of data which, by any estimation, must be considered extremely personal. See Sheets, 45 F.3d at 1388 (noting privacy interest in information about spouse learned or observed through marriage); Fraternal Order of Police, 812 F.2d at 115 (recognizing that certain financial records should be afforded constitutional protection); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980)(extending privacy protection to medical records); York v. Story, 324 F.2d 450, 455 (9th Cir. 1963)("We cannot conceive of a more basic subject of privacy than the naked body."), cert. denied, 376 U.S. 939 (1964). It appears clear to us that the facts over which Eagle asserts a privacy interest are fundamentally different from the information publicized in these other opinions. Instead, the situation in the case sub judice seems more analogous to circumstances in which courts have refused to recognize a legitimate expectation of privacy. See Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995)("Criminal activity is . . . not protected by the right to privacy."); Holman v. Central Arkansas Broadcasting Co., 610 F.2d 9 542, 544 (8th Cir. 1979)("[N]o right to privacy is invaded when state officials allow or facilitate publication of an official act such as an arrest."); Baker v. Howard, 419 F.2d 376, 377 (9th Cir. 1969)(holding that constitutional right is not implicated even when police officers circulate false rumors that person has committed a crime). Far from being "inherently private," the details of Eagle's prior guilty plea are by their very nature matters within the public domain. Accordingly, we decide without hesitation that Eagle has no legitimate expectation of privacy in this material. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95 (1975)("[T]he interests in privacy fade when the information involved already appears on the public record."), quoted in McNally v. Pulitzer Publishing Co., 532 F.2d 69, 77 (8th Cir.), cert. denied, 429 U.S. 855 (1976). In reaching this conclusion, we underscore that Eagle pleaded guilty to a felony in open court. The Supreme Court has explained: A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. Craig v. Harney, 331 U.S. 367, 374 (1947); see also United States v. McNally, 485 F.2d 398, 402 (8th Cir. 1973)(commenting upon public nature of trial), cert. denied, 415 U.S. 978 (1974). In fact, the concept of open and public court proceedings is a foundational hallmark of our republic. Cf. U.S. Const. amend. VI (specifying that criminal defendants shall enjoy a public trial). It is evident, then, that Eagle can have virtually no expectation of privacy in the events surrounding his guilty plea. See Pulitzer 10 Publishing, 532 F.2d at 77-78 (declining to find constitutional violation where facts disclosed in newspaper article had also been revealed in open court). By freely admitting his transgression in an intrinsically public forum, Eagle acknowledged before all his fellow citizens that he had committed a crime against the laws of Arkansas. He cannot now claim that a subsequent disclosure of this same information constituted a constitutional violation. We are unpersuaded by Eagle's contention that this result should somehow be different because his criminal record was ultimately expunged. We observe initially that state laws, such as Arkansas' expungement provisions, do not establish the parameters of constitutional rights, like the right to privacy, that are grounded in substantive theories of due process. Bagley v. Rogerson, 5 F.3d 325, 328-29 (8th Cir. 1993). Quite to the contrary, these precepts achieve their scope from "deeply rooted notions of fundamental personal interests derived from the Constitution."3 Nilson, 45 F.3d at 372 (quotation omitted). With these thoughts in mind, we express our approval of the Tenth Circuit's reasoning in Nilson: An expungement order does not privatize criminal activity. While it removes a particular arrest and/or conviction from an individual's criminal record, the underlying object of expungement remains public. Court records and police blotters permanently document the expunged incident, and those officials integrally involved retain knowledge of the event. An expunged arrest and/or conviction is never truly removed from the public record and thus is not entitled to privacy protection. Id. 3 The Nilson court continued, and we agree, that "[w]hile state statutes and regulations may inform our judgement regarding the scope of constitutional rights, they fall far short of the kind of proof necessary to establish a reasonable expectation of privacy." Nilson, 45 F.3d at 372 (quotation omitted). 11 Just as the judiciary cannot "suppress, edit, or censor events which transpire in proceedings before it," Craig, 331 U.S. at 374, neither does the legislature possess the Orwellian power to permanently erase from the public record those affairs that take place in open court. Actually, we doubt this was the intention of the Arkansas General Assembly, for even in that state an expunged conviction can be used for certain purposes. See Gosnell v. State, 681 S.W.2d 385, 386-87 (Ark. 1984)(deciding that an expunged conviction can be employed to enhance a person's sentence as a habitual offender); cf. Ark. Code Ann. § 16-90-901(b) (Michie Supp. 1996)("'[E]xpunge' shall not mean the physical destruction of any records."). In any event, no governmental body holds the power to nullify the historical fact that in 1987 Eagle pleaded guilty to a felony. Thus, notwithstanding the subsequent expungement order, the officers' divulgence of this public information does not implicate the constitutional right to privacy. See Nilson, 45 F.3d at 372 ("The disclosed information itself must warrant constitutional protection."). We applaud Arkansas' commendable efforts to rehabilitate first time offenders, many of whom are probably in their youth, and to return those persons to the community without the disgraceful stigma of a criminal record. See Gosnell, 681 S.W.2d at 387 (discussing legislature's intention in passing comparable expungement provision). By the same token, we respect Eagle's endeavors, which appear to have been successful, to put his sordid past behind him and resume his life as a productive citizen. It is unfortunate that the JPD officers, in an ignominious attempt to undermine Eagle's salary survey results, felt it necessary to publicly trample upon another man's reputation. We must constantly remain aware, however, that the Constitution does not provide a remedy for every wrong that occurs in society. Rather, it is a framework for governance that protects those rights that are most cherished among free individuals. At the very least, the Constitution cannot act as a shield to protect Eagle from his own 12 previous indiscretions. We therefore reject his attempts to elevate to a constitutional violation the officers' disclosure of his criminal history. 3. The unjustified computer searches Eagle also complains that the officers violated his constitutional right to privacy by retrieving, without justification, his criminal record from the NCIC and ACIC computer networks. We find this to be the most troubling aspect of this appeal. Years ago, at what might now be considered the dawn of the technological revolution, the Supreme Court foresaw on the horizon abuses that might emanate from governmental collection of vast amounts of personal data. Whalen v. Roe, 429 U.S. 589, 605 (1977). Some of the Court's remarks in that case bear repeating today: We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. . . . [I]n some circumstances that duty arguably has its roots in the Constitution . . . . Id. (footnote omitted). Justice Brennan added: [C]ollection and storage of data by the State that is in itself legitimate is not rendered unconstitutional simply because new technology makes the State's operations more efficient. However, as the example of the Fourth Amendment shows, the Constitution puts limits not only on the type of information the State may gather, but also on the means it may use to gather it. The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and 13 I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology. Id. at 606-07 (Brennan, J., concurring). We echo these concerns. It is disquieting to think that the JPD employees wasted valuable minutes, time that presumably could have been expended in the enforcement of criminal laws, to illicitly procure from computer networks incriminatory information about Eagle. Still, we must not forget the type of database accessed in this case. Eagle has alleged that the officers used the ACIC and NCIC systems to search his criminal history files. Regulations on the use of these computer networks provide that criminal history information includes "identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correctional supervision, and release." 28 C.F.R. § 20.3(b) (1995); see also ACIC System Regulations § 2(D) (1989)(containing nearly identical definition). Additionally, the Department of Justice has stated that criminal history information in the NCIC does not include "[i]ntelligence or investigative information (e.g., suspected criminal activity, associates, hangouts, financial information, ownership of property and vehicles)." 28 C.F.R. § 20.3(b), appendix at 357-58 (1995). As we have discussed earlier in this opinion, the type of information contained within these criminal history files is not the sort of data over which an individual can successfully assert a right to privacy. See, e.g., Nilson, 45 F.3d at 372 ("Criminal activity is . . . not protected by the right to privacy."). Because Eagle has no legitimate expectation of privacy in the contents of his criminal history file, we cannot agree that the officers violated his constitutional right when they engaged in an unwarranted search of this material. Thus, though it is disturbing that the officers participated in this sort of activity, Eagle has 14 not set forth a viable claim for recourse in this case. We hope that, in the future, officers will be discouraged from similar behavior by the time constraints of their jobs and by the possibility of severe criminal penalties.4 See, e.g., Ark. Code Ann. § 12-12-212 (Michie 1995)(providing that persons who access the ACIC for improper purposes are guilty of a felony). B. Municipal Liability Before passing upon the merits of the City's appeal, we must again answer a jurisdictional question. Unlike the individual officers, the City does not enjoy qualified immunity and cannot invoke the collateral order doctrine to justify this appeal from the district court's denial of summary judgment. See Swint v. Chambers County Comm'n, 115 S. Ct. 1203, 1207-08 (1995). The Court in Swint unanimously determined that the Eleventh Circuit did not have pendent jurisdiction over a county's interlocutory appeal of a district court's refusal to grant summary judgment. Id. at 1207-12. Nonetheless, although the Court indicated that interlocutory review should be restricted to those types of appeals expressly authorized by Congress, it did not completely foreclose the exercise of pendent appellate jurisdiction. Id. at 1209-12. The Court declined to "definitively or preemptively settle here whether or when it may be proper for a court of appeals with jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves independently appealable." Id. at 1212. We have interpreted Swint to allow pendent appellate jurisdiction "over claims that are 'inextricably intertwined' with interlocutory appeals concerning the defense of qualified 4 We note that our decision on this issue is confined to the facts of this case. As such, we offer no opinion as to whether a mere search of other files, containing information in which a person might have a legitimate expectation of privacy, could in itself violate this constitutional right. 15 immunity." Veneklase, 78 F.3d at 1269. In this case, we have decided that the officers' conduct did not violate Eagle's constitutional right to privacy. This conclusion also disposes of Eagle's related claims against the City. See Thelma D. ex rel. Delores A. v. Board of Educ., 934 F.2d 929, 932 (8th Cir. 1991)(stating that a local governmental entity may be liable for an official custom that "causes an individual to suffer a constitutional harm"); Roach v. City of Fredericktown, 882 F.2d 294, 298 (8th Cir. 1989)(emphasizing that City cannot be liable for failure to train unless there has been "an underlying violation of the plaintiff's constitutional rights by a municipal employee"). Under these circumstances, where our ruling on the merits of the individual employees' assertions has necessarily resolved the City's pendent claim, we decide that the City's appeal is "inextricably intertwined" with the officers' qualified immunity appeal. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995)(approving the exercise of pendent appellate jurisdiction where the court's ruling on the merits of the collateral qualified immunity appeal resolved all of the remaining issues presented by the pendent appeal). Having thus established our jurisdiction, we reverse the district court's refusal to grant the City's motion for summary judgment on Eagle's invasion of privacy claim.5 C. Arkansas' Tort of Outrage The officers also argue that the district court committed error when it refused to grant their motion for summary judgment on Eagle's cause of action under Arkansas' tort of outrage. This state law question is not "inextricably intertwined" with the officers' qualified immunity appeal. See Swint, 115 S. Ct. at 5 As a matter of course, then, we reverse as well the district court's refusal to grant summary judgment to the officers in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 166 (1985)("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."). 16 1212. By like measure, review of this otherwise nonappealable decision is not "necessary to ensure meaningful review" of the appealable order. See id. Therefore, we do not have jurisdiction to consider this aspect of the appeal. III. Conclusion We reverse the district court's refusal to grant summary judgment to the officers and the City on Eagle's claim that they violated his constitutional right to privacy, we dismiss for want of jurisdiction that part of the appeal dealing with pendent state law questions, and we remand for further proceedings consistent with this opinion. REVERSED IN PART, DISMISSED IN PART, AND REMANDED. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. 17	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3130744/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-318-CR ROMEO LEAL SANCHEZ APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY ---------- MEMORANDUM OPINION 1 AND JUDGMENT ---------- We have considered the “Appellant's Withdrawal Of Notice Of Appeal Pursuant To Texas Rule Of Appellate Procedure 42.2.” The motion complies with rule 42.2(a) of the rules of appellate procedure. Tex. R. App. P. 42.2(a). No decision of this court having been delivered before we received this motion, we grant the motion and dismiss the appeal. See id.; Tex. R. App. P. 43.2(f). PER CURIAM PANEL: WALKER, MCCOY, and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) 1  See Tex. R. App. P. 47.4. DELIVERED: February 4, 2010	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/4301154/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-17-00414-CV CHERIE ALLEN APPELLANT V. BANK OF AMERICA, N.A. AND APPELLEES LENDERS COMMERCIAL FINANCIAL, LLC ---------- FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 2017-006758-3 ---------- MEMORANDUM OPINION1 AND JUDGMENT ------------ On June 28, 2018, we notified appellant that upon presubmission screening, it was determined that her brief did not comply with rules of appellate procedure 9.1, 9.4, and 38.1. See Tex. R. App. P. 9.1(c), 9.4(h), (i), (j)(1), 38.1(g), (i). We notified appellant that she would have until July 9, 2018, to file 1 See Tex. R. App. P. 47.4. an amended brief that complied with these rules and warned that failure to do so could result in our striking appellant’s brief and dismissing the appeal or the waiver of noncomplying points. See Tex. R. App. P. 38.8(a), 38.9(a), 42.3. We also notified appellant that she was prohibited from raising additional or different points in the amended brief but that if she desired to file an amended brief that raised additional or different points, she had to first file a motion and obtain an order from this court permitting her to do so. Instead of timely filing an amended brief, on July 9, 2018, appellant filed a “Motion to Amend Brief to Raise Additional Points.” On July 12, 2018, we denied the motion and ordered appellant to file an amended brief that complied with this court’s June 28, 2018 letter. We stated that if she did not file an amended brief by July 16, 2018, we would strike appellant’s brief and dismiss this appeal for want of prosecution. We have not received any response. “We liberally construe pro se briefs, but to ensure fairness in our treatment of all litigants, we hold pro se litigants to the same standards as licensed attorneys and require pro se litigants to follow the applicable laws and rules of procedure.” Branch v. Fannie Mae, No. 02-11-00355-CV, 2012 WL 3030525, at *1 (Tex. App.—Fort Worth July 26, 2012, no pet.) (mem. op.). Because appellant has failed to file an amended brief after having been given an opportunity to do so and because she has failed to provide a reasonable explanation for said failure, we strike appellant’s brief and dismiss the appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 38.9(a), 42.3(b), (c), 43.2(f). 2 PER CURIAM PANEL: WALKER, MEIER, and GABRIEL, JJ. DELIVERED: August 2, 2018 3	01-03-2023	08-06-2018
https://www.courtlistener.com/api/rest/v3/opinions/867983/	United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-3386 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Kurt Alexander lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________ Submitted: April 10, 2013 Filed: May 16, 2013 ____________ Before WOLLMAN, BEAM, and MURPHY, Circuit Judges. ____________ MURPHY, Circuit Judge. Kurt Alexander was convicted of one count of conspiring to distribute and possess with intent to distribute methamphetamine and three counts of distributing methamphetamine. The district court1 sentenced him to 324 months imprisonment 1 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. and ordered entry of a personal money judgment in the amount of $47,009. Alexander appeals his conviction on the conspiracy count, his sentence, and the money judgment. We affirm in all respects. I. While investigating drug trafficking in Cedar Rapids, law enforcement officers received information that Kurt Alexander and Timothy Otis were working together to distribute methamphetamine in the area. They arranged a controlled buy from Otis on September 20, 2011. Under surveillance a confidential informant went to Otis’ house with $600 to purchase a quarter ounce of methamphetamine. Otis asked the informant to wait while he went “[t]o Kurt’s house,” drove to Alexander’s residence where they met in the garage, and then returned with a baggy of methamphetamine for the informant. Testing revealed that the baggy contained 5.7 grams of 73.3% pure methamphetamine. Six days later officers executed simultaneous search warrants at the residences of Alexander and Otis. In Alexander’s garage they found 1.8 grams of 79.1% pure methamphetamine, $3,800 in cash, a digital scale, baggies with twist ties commonly used to package narcotics, and other drug paraphernalia. They however failed to discover at that time two other pounds of methamphetamine which were hidden on his property. Even after the searches, Alexander and Otis continued selling methamphetamine. Law enforcement executed further controlled buys on November 10 and December 7. Each followed the same basic sequence. The confidential informant went to Otis’ house, Otis drove to Alexander’s garage to pick up the methamphetamine, and Otis returned to his house to sell the drugs to the informant. The second buy involved 6.3 grams of methamphetamine and the third 5.4 grams; each amount of methamphetamine was 48.8% pure. Officers tried to arrange two more controlled buys from Otis the following month, but each attempt failed for Alexander was not available. -2- Alexander and Otis were arrested in February 2012. After Otis agreed to plead guilty and cooperate with the government, Alexander was charged in a superseding indictment. Count one charged Alexander with conspiracy to distribute and possess with intent to distribute at least 500 grams of methamphetamine mixture and at least 50 grams of pure methamphetamine within 1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 860. Counts two through four were based on the three controlled buys and charged Alexander with the distribution of methamphetamine within 1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860. The government also sought a $50,000 money judgment against Alexander based on his drug trafficking proceeds. At trial Otis testified that he first received methamphetamine from Alexander in 2008 and soon began buying personal use quantities from him about three times each week. Otis resold small amounts of his methamphetamine, but he would “go right to Kurt” if others wanted larger quantities. Otis’ distribution had increased by 2010 when Alexander was supplying him two or three times a week with half ounce quantities of methamphetamine at a price of $1,000 per half ounce. In late 2010 after Otis was released from jail on a different charge, Alexander deposited about $80,000 for him in a bank. Over time Alexander subtracted from that total to account for Otis’ drug debt, keeping a ledger to log the transactions. As Otis became more involved in Alexander’s operations, he learned that Alexander typically bought pound quantities of methamphetamine from a source in DeWitt, Iowa for $28,000 per pound. In late summer 2011, Otis arranged a transaction in which Alexander sold a third party one ounce of methamphetamine for a number of firearms. Otis described the firearms as “numerous shotguns and one Japanese 7-millimeter with a bayonet, antique gun.” Otis and Alexander continued distributing methamphetamine until their arrest. Law enforcement officers testified about their investigation of Alexander’s drug trafficking operations, and the government introduced evidence of the three -3- controlled buys and items seized from Alexander’s residence. The confidential informant and eight other individuals testified about buying methamphetamine from Alexander and Otis, describing the quantities and prices of drugs they purchased. These customers explained that Otis often served as the middle man between buyers and Alexander. The jury convicted Alexander on all charges. Alexander’s presentence investigation report (PSR) recommended a total offense level of 38. It started with an offense level of 32 based on Alexander’s responsibility for less than 1.5 kilograms of methamphetamine, then added two levels for drug sales near a protected location; two levels for being an organizer, leader, manager, or supervisor of criminal activity; and two levels for possessing a dangerous weapon in connection with drug sales. Alexander objected to all of these recommendations except for the protected location enhancement. The government objected to the PSR’s drug quantity calculation, arguing that the trial evidence supported a finding substantially higher than 1.5 kilograms of methamphetamine. The district court agreed with the government’s argument on drug quantity, finding that Alexander was responsible for between 1.5 and 5 kilograms of methamphetamine mixture, which led to an offense level of 34. The district court also found that Alexander was an organizer, leader, manager, or supervisor of criminal activity and that he had possessed a dangerous weapon in connection with his offenses. Ultimately Alexander’s total offense level of 40 and criminal history category II resulted in a guideline range of 324 to 405 months. The district court sentenced him to 324 months imprisonment and ordered a personal money judgment of $47,009. That amount was made up of the $50,000 the government sought in the superseding indictment minus the $2,991 seized on Alexander’s arrest. Alexander now appeals his conviction on the conspiracy charge, his sentence, and the money judgment. -4- II. Alexander first challenges the jury’s decision that he conspired to distribute and possess with intent to distribute methamphetamine. He argues that the evidence was insufficient to convict him on this count. We review the sufficiency of evidence de novo and will affirm the jury’s verdict “if, taking all facts in the light most favorable to the verdict, a reasonable juror could have found the defendant guilty of the charged conduct beyond a reasonable doubt.” United States v. Clark, 668 F.3d 568, 572 (8th Cir. 2012) (citation omitted). We do not weigh the evidence or witness credibility because the jury has “the sole responsibility to resolve conflicts or contradictions in testimony.” United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010). The jury’s credibility determinations “are virtually unreviewable on appeal.” Id. at 911. To convict Alexander of the conspiracy charge in the superseding indictment, the government had to prove that (1) he and one or more persons reached an agreement to distribute or possess with intent to distribute methamphetamine, (2) he voluntarily and intentionally joined the agreement, (3) he understood the essential purpose of the agreement at that time, and (4) the conspiracy involved at least 500 grams of methamphetamine mixture and 50 grams of pure methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846; United States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012). Alexander argues that the government did not prove he reached an agreement to distribute methamphetamine with Otis or anyone else. He asserts that the trial evidence showed nothing more than buyer seller relationships which are insufficient to establish a conspiracy. We disagree. A true individual buyer seller case involves evidence of only “a single transient sales agreement and small amounts of drugs consistent with personal use.” United States v. Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011) (citation omitted). In contrast, the purchase of wholesale drug quantities -5- on numerous occasions “raises an inference of knowledge of a drug distribution venture that goes beyond an isolated buyer-seller transaction.” Id. In this case the government presented evidence of multiple transactions between Alexander and Otis involving wholesale quantities of methamphetamine. The three controlled buys that law enforcement executed in late 2011 establish more than a buyer seller relationship between Alexander and Otis. Moreover, Otis and a number of other witnesses testified about Alexander’s extensive methamphetamine trafficking. Alexander attacks the character of many of these people, but credibility issues are for the jury. See Wiest, 596 F.3d at 910–11. We conclude that there was sufficient evidence for a reasonable jury to find that Alexander was party to an agreement to distribute methamphetamine. Alexander next contends there was insufficient evidence that the conspiracy involved 50 grams of pure methamphetamine, emphasizing that law enforcement seized only about 11 grams of pure methamphetamine. In determining whether Alexander’s conspiracy involved the requisite drug quantity, the jury was not limited to the amount directly seized. See United States v. Jones, 559 F.3d 831, 835–36 (8th Cir. 2009). The jury could properly consider witness testimony and other corroborating evidence to extrapolate from the amount and purity of narcotics actually seized. See id. (discussing United States v. Buckley, 525 F.3d 629, 631–33 (8th Cir. 2008); United States v. Velazquez, 410 F.3d 1011, 1013–16 (8th Cir. 2005)). The government presented evidence of the quantities and purity levels of methamphetamine seized during the three controlled buys and the search of Alexander’s residence, as well as voluminous witness testimony about the quantities and prices of narcotics that Alexander trafficked. The jury was entitled to consider all of this evidence in reaching its drug quantity finding. See id. Viewing the facts in a light most favorable to the verdict, a reasonable jury could determine that Alexander’s conspiracy involved at least 50 grams of pure methamphetamine. -6- III. We now turn to Alexander’s sentence. Here, we must first ensure that the district court committed no significant procedural error. United States v. Dengler, 695 F.3d 736, 739 (8th Cir. 2012). We review findings of fact for clear error and the district court’s application of the guidelines to those facts de novo. Id. Alexander first argues that the district court erred in finding that he was responsible for between 1.5 and 5 kilograms of methamphetamine mixture. That finding resulted in an offense level of 34 under U.S.S.G. § 2D1.1(c)(3). Alexander highlights the uncertainties and variations in witness estimates of how much methamphetamine he sold, and he argues that certain quantities were improperly double counted. In making its drug quantity findings, the sentencing court may consider the amount of drugs directly seized, all transactions known or reasonably foreseeable by the defendant, witness testimony, and any other relevant information bearing sufficient indicia of reliability to support its probable accuracy. See Walker, 688 F.3d at 421 (citations omitted). On this record the district court did not clearly err in its drug quantity findings. Witness testimony established that Alexander regularly possessed pound quantities of methamphetamine. One pound of methamphetamine mixture is the equivalent of approximately 450 grams, and Otis’ testimony provided support for finding 1.5 kilograms of methamphetamine. As the district court noted, finding Alexander responsible for between 1.5 and 5 kilograms of methamphetamine was probably “conservative” based on all the trial evidence. We are satisfied that the district court did not clearly err. Alexander next challenges his two level enhancement under U.S.S.G. § 3B1.1(c) for being “an organizer, leader, manager, or supervisor in any criminal activity.” We “broadly construe” the definition of an organizer, leader, manager, or -7- supervisor. United States v. Brown, 539 F.3d 835, 838 (8th Cir. 2008). Under application note 4 to this guideline, we consider such factors as “the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4. We conclude that the district court did not clearly err in finding that Alexander qualified for this enhancement. Law enforcement officers could successfully arrange controlled buys from Otis only when Alexander was available to supply the drugs. After Otis was released from a brief time in jail, Alexander deposited about $80,000 for him in a bank. Alexander received pound quantities of methamphetamine from his source in DeWitt and redistributed the narcotics in Cedar Rapids. At Alexander’s residence officers found a digital scale, baggies with twist ties, and other drug paraphernalia commonly used to distribute methamphetamine. These facts supports a finding that Alexander was an “organizer, leader, manager, or supervisor” of criminal activity. The district court did not err in this regard. Alexander further asserts that the district court erred in imposing an enhancement for possession of a dangerous weapon. The guidelines provide for a two level enhancement if “a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). This enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. cmt. n.11(A). Otis testified that he arranged a transaction in late summer 2011 in which Alexander sold an ounce of methamphetamine in exchange for a number of firearms. Our precedent is clear that the “trade of a firearm for drugs warrants” this enhancement. United States v. Martinez, 557 F.3d 597, 600 (8th Cir. 2009). While Alexander claims that Otis’ testimony was unreliable, the district court determined that the enhancement was appropriate based on all the evidence. After -8- reviewing the record, we conclude the district court did not clearly err in finding that Alexander traded methamphetamine for firearms and properly applied this enhancement. Alexander also claims that his 324 month sentence was substantively unreasonable. We review the reasonableness of a sentence for abuse of discretion, applying a presumption of reasonableness where, as here, the defendant was sentenced within his guideline range. Dengler, 695 F.3d at 740. Alexander argues that he should have been sentenced below his guideline range because of his age, limited criminal history, family circumstances, and need for drug treatment. He also contends that his 324 month sentence is disproportionate when compared to the 52 months Otis received. The district court considered each of these arguments in the context of all the 18 U.S.C. § 3553(a) sentencing factors. It explained that Alexander did not deserve a below guideline sentence because of the large quantities of methamphetamine involved, the duration of his trafficking operations, the serious nature of his offenses within 1,000 feet of a playground, and his criminal history. We conclude that the district court did not abuse its discretion in sentencing Alexander to 324 months, the bottom of his guideline range. We finally consider the personal money judgment against Alexander. We review findings of fact for clear error and whether those facts render a particular asset subject to forfeiture de novo. United States v. Van Nguyen, 602 F.3d 886, 903 (8th Cir. 2010). An asset is subject to forfeiture if it “is ‘property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of [a drug crime]’ (proceeds prong) or was ‘used, or intended to be used, in any manner or part, to commit or to facilitate the commission of, such violation’ (facilitation prong).” Id. (citing 21 U.S.C. § 853) (alteration in original). In this case, the district court ordered a personal money judgment in the amount of $47,009. In the superseding indictment the government sought $50,000, but $2,991 in cash had been seized at the time Alexander was arrested and later deducted from the amount due. -9- According to Alexander, there was insufficient evidence to support the money judgment because it could only have been based on Otis’ unreliable testimony. This argument lacks merit. Not only did the district court find Otis credible, but many other witnesses testified about the quantities and prices of methamphetamine that Alexander was trafficking. The government also presented other evidence to corroborate the extensive witness testimony. Given the totality of evidence regarding the quantities and prices of drugs sold, the frequency of sales, and the length of the conspiracy, the district court did not err in finding that Alexander’s drug trafficking involved at least $50,000 in proceeds. The money judgment should be upheld. IV. Accordingly, we affirm Alexander’s convictions, sentence, and money judgment. ______________________________ -10-	01-03-2023	05-16-2013

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